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This is a Bill, not an Act. For current law, see the Acts databases.
CHILDREN AND YOUNG PEOPLE BILL 2008
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Children and Young People)
Children
and Young People Bill 2008
Contents
Page
Part 1.1 Corrections
Management Act 2007 656
Part 1.2 Court
Procedures Act 2004 661
Part 1.3 Crimes Act
1900 674
Part 1.4 Crimes
(Sentence Administration) Act 2005 686
Part 1.5 Crimes
(Sentencing) Act 2005 696
Part 1.6 Criminal
Code 2002 719
Part 1.7 Evidence
(Miscellaneous Provisions) Act 1991 722
Part 1.8 Magistrates
Court Act 1930 723
2008
THE LEGISLATIVE ASSEMBLY
FOR THE AUSTRALIAN CAPITAL
TERRITORY
(As presented)
(Minister for Children and Young People)
Children and Young
People Bill 2008
A Bill for
An Act about the welfare of children and young people, and for other
purposes
The Legislative Assembly for the Australian Capital Territory enacts as
follows:
This Act is the Children and Young People Act 2008.
(1) This Act commences on a day fixed by the Minister.
Note 1 The naming and commencement provisions automatically commence
on the notification day (see Legislation Act, s 75 (1)).
Note 2 A single day or time may be fixed, or different days or times
may be fixed, for the commencement of different provisions (see Legislation Act,
s 77 (1)).
(2) The Legislation Act, section 79 (Automatic commencement of postponed
law) does not apply in relation to this Act.
(3) However, if any provision of this Act has not commenced within
12 months beginning on its notification day, it automatically commences on
the first day after that period.
The dictionary at the end of this Act is part of this Act.
Note 1 The dictionary at the end of this Act defines certain terms
used in this Act, and includes references (signpost definitions)
to other terms defined elsewhere.
For example, the signpost definition ‘mental health
order—see the Mental Health (Treatment and Care) Act 1994,
dictionary.’ means that the term ‘mental health order’ is
defined in the dictionary to that Act and the definition applies to this
Act.
Note 2 A definition in the dictionary (including a signpost
definition) applies to the entire Act unless the definition, or another
provision of the Act, provides otherwise or the contrary intention otherwise
appears (see Legislation Act, s 155 and s 156 (1)).
A note included in this Act is explanatory and is not part of this
Act.
Note See the Legislation Act, s 127 (1), (4) and (5) for
the legal status of notes.
5 Offences
against Act—application of Criminal Code etc
Other legislation applies in relation to offences against this
Act.
Note 1 Criminal Code
The Criminal Code, ch 2 applies to all offences against this Act (see Code,
pt 2.1).
The chapter sets out the general principles of criminal responsibility
(including burdens of proof and general defences), and defines terms used for
offences to which the Code applies (eg conduct, intention, recklessness and
strict liability).
Note 2 Penalty units
The Legislation Act, s 133 deals with the meaning of offence penalties
that are expressed in penalty units.
6 Application
of Act to children and young people etc
The functions under this Act may be exercised for a child or young person,
or a young offender or young detainee—
(a) who ordinarily lives in the ACT; or
(b) who does not ordinarily live in the ACT, but who is in the ACT;
or
(c) about whom a report is made under—
(i) section 353 (Voluntary reporting of abuse and neglect) arising
from something happening in the ACT; or
(ii) section 355 (Offence—mandatory reporting of abuse) arising
from something happening in the ACT; or
(iii) section 361 (Prenatal reporting—anticipated abuse and
neglect) if the pregnant woman ordinarily lives in the ACT or is in the
ACT.
Part
1.2 Objects, principles and
considerations
The objects of this Act include—
(a) providing for, and promoting, the wellbeing, care and protection of
children and young people in a way that—
(i) recognises their right to grow in a safe and stable environment; and
(ii) takes into account the responsibilities of parents, families, the
community and the whole of government for them; and
(b) ensuring that children and young people are provided with a safe and
nurturing environment by organisations and people who, directly or indirectly,
provide for their wellbeing, care and protection; and
(c) preventing abuse and neglect of children and young people by providing
whole of government assistance to children and young people, their parents and
families, the community, and others who have responsibility for them;
and
(d) ensuring that Aboriginal and Torres Strait Islander people are
included and participate in—
(i) providing for, and promoting, the wellbeing, care and protection of
Aboriginal and Torres Strait Islander children and young people; and
(ii) preventing the abuse and neglect of Aboriginal and Torres Strait
Islander children and young people; and
(iii) rehabilitating and reintegrating Aboriginal and Torres Strait
Islander young offenders; and
(e) ensuring that services provided by, or for, government for the
wellbeing, care and protection of children and young people—
(i) are centred on the needs of children and young people; and
(ii) take into account the views and wishes of children and young people;
and
(iii) foster and promote the health, education, developmental needs,
spirituality, self-respect, self-reliance and dignity of children and young
people; and
(iv) respect the individual race, ethnicity, religion, disability,
sexuality and culture of children and young people; and
(f) ensuring that young offenders—
(i) receive positive support and opportunities to become rehabilitated and
reintegrated community members; and
(ii) share responsibility for rehabilitation and reintegration with their
parents and families, the community and the government in partnership;
and
(g) imposing standards that must be complied with for the delivery of
services to children and young people; and
(h) ensuring the protection of children and young people in
employment.
8 Best
interests of children and young people paramount
consideration
(1) In making a decision under this Act in relation to a particular child
or young person, the decision-maker must regard the best interests of the child
or young person as the paramount consideration.
(2) In making a decision under this Act otherwise than in relation to a
particular child or young person, the decision-maker must consider the best
interests of children and young people.
Note 1 For the criminal matters chapters (see s 91), there are
further provisions about how a decision-maker decides what is in the best
interests of a child or young person, see s 94 (Youth justice
principles).
Note 2 For the care and protection chapters (see s 335), there are
further provisions about how a decision-maker decides what is in the best
interests of a child or young person (see s 348).
9 Principles
applying to Act
(1) In making a decision under this Act in relation to a child or young
person, a decision-maker must have regard to the following principles where
relevant, except when it is, or would be, contrary to the best interests of a
child or young person:
(a) the child’s or young person’s sense of racial, ethnic,
religious, individual or cultural identity should be preserved and
enhanced;
(b) the child’s or young person’s education, training or
lawful employment should be encouraged and continued without unnecessary
interruption;
(c) the child’s or young person’s age, maturity, developmental
capacity, sex, background and other relevant characteristics should be
considered;
(d) delay in decision-making processes under the Act should be avoided
because delay is likely to prejudice the child’s or young person’s
wellbeing.
Note In addition to these general principles, the following
principles also apply:
(a) for the care and protection chapters—care and protection
principles (see s 349);
(b) for ch 20—childcare services principles (see s 729).
(2) A decision-maker exercising a function under this Act must, where
practicable and appropriate, have qualifications, experience or skills suitable
to apply the principles in subsection (1) in making decisions under the Act in
relation to children and young people.
10 Aboriginal
and Torres Strait Islander children and young people
principle
In making a decision under this Act in relation to an Aboriginal or Torres
Strait Islander child or young person, in addition to the matters in section 8
and section 9, the decision-maker must take into account the
following:
(a) the need for the child or young person to maintain a connection with
the lifestyle, culture and traditions of the child’s or young
person’s Aboriginal or Torres Strait Islander community;
(b) submissions about the child or young person made by or on behalf of
any Aboriginal or Torres Strait Islander people or organisations identified by
the chief executive as providing ongoing support services to the child or young
person or the child’s or young person’s family;
(c) Aboriginal and Torres Strait Islander traditions and cultural values
(including kinship rules) as identified by reference to the child’s or
young person’s family and kinship relationships and the community with
which the child or young person has the strongest affiliation.
Note For decisions about placement of an Aboriginal or Torres Strait
Islander child or young person with an out-of-home carer, see s 512
(Priorities for placement with out-of-home carer—Aboriginal or Torres
Strait Islander child or young person).
Part
1.3 Important
concepts
Division
1.3.1 Definitions
In this Act:
child means a person who is under 12 years old.
12 Who
is a young person?
In this Act:
young person means a person who is 12 years old or older, but
not yet an adult.
Note Adult is defined in the Legislation Act, dict, pt
1.
13 Who
is a family member of a child or young person?
In this Act:
family member, of a child or young person—
(a) means the child’s or young person’s—
(i) parent, grandparent or step-parent; or
(ii) son, daughter, stepson or stepdaughter; or
(iii) sibling; or
(iv) uncle or aunt; or
(v) nephew, niece or cousin; and
(b) for an Aboriginal or Torres Strait Islander child or young
person—includes a person who has responsibility for the child or young
person in accordance with the traditions and customs of the child’s or
young person’s Aboriginal or Torres Strait Islander community.
14 Who
is a significant person for a child or young person?
In this Act:
significant person, for a child or young person, means a
person, (other than a family member) who the child or young person, a family
member of the child or young person or the chief executive considers is
significant in the child’s or young person’s life.
Examples—people who may be significant
people
1 a father-in-law, mother-in-law, brother-in-law or sister-in-law of a
young person
2 a long-term friend of a child or young person
3 a person who normally lives with the child or young person
4 a domestic partner of a young person
5 a domestic partner of a parent of a child or young person
6 a boyfriend or girlfriend of a young person
7 a person who has responsibility for the child or young person in
accordance with the cultural traditions and customs of the child’s or
young person’s community
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Division
1.3.2 Parental
responsibility
15 What
is parental responsibility?
In this Act:
parental responsibility, for a child or young person, means
all the duties, powers, responsibilities and authority parents have by law in
relation to their children, including the following aspects of parental
responsibility:
(a) daily care responsibility for the child or young person;
(b) long-term care responsibility for the child or young person.
Note Daily care responsibility is dealt with in
s 19.
Long-term care responsibility is dealt with in
s 20.
16 Parents
have parental responsibility
(1) Each parent of a child or young person has parental responsibility for
the child or young person.
(2) To remove any doubt, parent includes a parent who is not
an adult.
(3) This section is subject to the following sections:
(a) section 17 (Aspects of parental responsibility may be
transferred);
(b) section 18 (Aspects of parental responsibility may be
shared).
17 Aspects
of parental responsibility may be transferred
(1) Parental responsibility may be transferred from a person to someone
else under—
(a) a family group conference agreement; or
Note Family group conferences are dealt
with in ch 3 and ch 12.
(b) an appraisal order including a temporary parental responsibility
provision; or
Note Appraisal orders and temporary
parental responsibility provisions are dealt with in s 371 and s 372.
(c) emergency action; or
Note Emergency action is dealt with in
pt 13.1.
(d) a care and protection order including a parental responsibility
provision; or
Note Care and protection orders are
dealt with in ch 14.
(e) a safe custody warrant; or
(f) a court order (under this Act or another law in force in the
Territory); or
Example—court order under another
law
a parenting order under the Family Law Act 1975 (Cwlth)
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(g) a provision of another law in force in the Territory.
(2) If parental responsibility is transferred from a person to someone
else—
(a) only the aspect of parental responsibility expressly stated to be
transferred is transferred; and
(b) no-one else’s parental responsibility, or aspect of parental
responsibility, for the child or young person is diminished except to the extent
expressly stated or necessary to give effect to the transfer.
18 Aspects
of parental responsibility may be shared
(1) Parental responsibility may be shared between 2 or more people
under—
(a) a family group conference agreement; or
Note Family group conferences are dealt
with in ch 3 and ch 12.
(b) a voluntary care agreement; or
Note Voluntary care agreements are dealt
with in pt 12.3.
(c) a care and protection order including a parental responsibility
provision; or
Note Care and protection orders are
dealt with in ch 14.
(d) a court order (under this Act or another law in force in the
Territory).
(2) If parental responsibility is shared between 2 or more people, either
of them may discharge the responsibility.
(3) This section is subject to the following sections:
(a) section 474 (Chief executive sharing daily care
responsibility);
Note If the chief executive shares daily
care responsibility for a child or young person, no other person with daily care
responsibility for the child or young person may discharge the responsibility in
a way that would be incompatible with the chief executive’s discharge of
the responsibility (see s 474 (2)).
(b) section 503 (Chief executive sharing long-term care
responsibility);
Note If the chief executive shares
long-term care responsibility for a child or young person and under a parental
responsibility provision is required to consult with each other person who
shares long-term care responsibility for the child or young person in making a
decision about a long-term matter for the child or young person, and another
person who has long-term care responsibility for the child or young person
disagrees with the chief executive’s proposed decision, the person or
chief executive may apply to the Childrens Court for an order about the matter
and the chief executive is required to not make the decision without the
person’s agreement (see s 503 (2)).
19 Daily
care responsibility for children and young people
(1) A person who has daily care responsibility for a child
or young person has responsibility for, and may make decisions about, the
child’s or young person’s daily care.
Examples—daily care responsibilities
and decisions
1 where and with whom the child or young person lives
2 people with whom the child or young person may have contact
3 arrangements for temporary care of the child or young person by someone
else
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A person who has daily care responsibility for a child or young person
may do any of the following:
(a) consent to a health care assessment of the child or young
person’s physical or mental wellbeing and have access to the assessment
report;
(b) on the advice of a health professional—consent to health care
treatment, not including surgery (other than surgery mentioned in paragraph
(c)), for the child or young person;
(c) on the advice of a dentist—consent to dental treatment,
including minor dental surgery, for the child or young person.
(3) If the person makes a decision about the people with whom the child or
young person may have contact, the person is also responsible for arrangements
to give effect to the decision.
(4) This section does not limit the matters for which the person has
responsibility to make decisions for the child or young person, but is subject
to—
(a) a court order (under this Act or another law); and
Examples—par (a)
1 A decision by a person who has daily care responsibility for a child
about people with whom the child may or may not have contact is subject to a
care and protection order that includes a contact provision about who may, or
must not, have contact with the child.
2 A decision by a person who has daily care responsibility for a child or
young person about where and with whom the chid or young person lives is subject
to a care and protection order that includes a residence provision.
3 The Childrens Court makes a care and protection order for a young person
that includes a parental responsibility provision that a stated person who has
daily care responsibility for the young person must exercise it in a stated way.
The person’s exercise of daily care responsibility for the young person is
subject to the order.
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(b) if there is a care plan in force for the child or young
person—the care plan.
Note A care plan for a child or young
person is a written plan of the chief executive’s proposals for the care
and protection of the child or young person
(see s 454).
(5) To remove any doubt, this section does not affect any right of a child
or young person to consent to their own health care treatment.
20 Long-term
care responsibility for children and young people
(1) A person who has long-term care responsibility for a
child or young person has—
(a) responsibility for the long-term care, protection and development of
the child or young person; and
(b) all the powers, responsibilities and authority a guardian of a child
or young person has by law in relation to the child or young person.
Examples—long-term care
responsibilities
1 administration, management and control of the child’s or young
person’s property
2 religion and observance of racial, ethnic, religious or cultural
traditions
3 obtaining or opposing the issuing of a passport for the child or young
person
4 long-term decisions about education
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A person who has long-term care responsibility for a child or young
person may, on the advice of a health professional, consent to health care
treatment that involves surgery for the child or young person.
Note Consent to minor dental surgery may be given by a person who
has daily care responsibility for the child or young person (see s 19 (2)
(c)).
(3) This section does not limit the matters for which the person has
responsibility in relation to the child or young person, but is subject
to—
(a) a court order (under this Act or another law); and
(b) if there is a care plan in force for the child or young
person—the care plan.
Note 1 The Childrens Court may make a
care and protection order for a child or young person that includes a parental
responsibility provision giving long-term care responsibility for the child or
young person to someone, or removing the responsibility from someone, or stating
how someone may exercise the responsibility (see pt 14.6).
Note 2 A care plan for a child or young
person is a written plan of the chief executive’s proposals for the care
and protection of the child or young person
(see s 454).
(4) To remove any doubt, this section does not affect any right of a child
or young person to consent to their own health care treatment.
21 Parents
or people with parental responsibility who cannot be found
(1) This section applies if a provision of this Act requires a person to
act in relation to a parent of, or a person with parental responsibility for, a
child or young person.
(2) The person is not required to act in relation to the parent or other
person if the person cannot after reasonable inquiry find the parent or other
person.
Notes to ch 2
In making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration (see s 8 (1)).
In making a decision under this chapter otherwise than in relation to a
particular child or young person, the decision-maker must consider the best
interests of children and young people (see s 8 (2)).
Note to pt 2.1
For provisions applying when the chief executive has parental
responsibility for a child or young person, see ch 15.
22 Chief
executive’s functions
(1) The chief executive has the following functions:
(a) providing, or assisting in providing, services directed to
strengthening and supporting families in relation to the wellbeing, care and
protection of their children and young people;
(b) supporting the community in preventing, or reducing, abuse and neglect
of children and young people;
(c) providing, or assisting in providing, information to parents, kinship
carers and foster carers, prospective kinship carers and foster carers,
government agencies, non-government agencies and members of the community about
the operation of this Act;
(d) providing, or assisting in providing, information to people who are
required to report suspected abuse of children and young people to help them
perform their legal obligation;
(e) providing, or assisting in providing, information to people who report
suspected abuse or neglect of children and young people and encouraging those
people to continue their involvement in matters arising from their
report;
(f) exercising aspects of parental responsibility for children and young
people;
(g) providing, or assisting in providing, information, services or
assistance to children and young people who have left the chief
executive’s care;
(h) providing, or assisting in providing, services for young offenders,
including by ensuring the provision of the care, support, rehabilitation and
guidance necessary for them to become rehabilitated and reintegrated community
members;
(i) working with other government agencies and community organisations, to
coordinate and promote the care and protection of children and young people,
including young offenders.
(2) The chief executive has all the functions of an authorised
person.
Note A provision of a law that gives an entity (including a person)
a function also gives the entity powers necessary and convenient to exercise the
function (see Legislation Act, s 196 and dict, pt 1, def
entity).
23 Chief
executive instructions
(1) The chief executive may make instructions, consistent with this Act,
for the management or operation of any administrative function under this Act.
(2) A person exercising an administrative function under this Act must
comply with the instructions.
24 Ministerial
directions to chief executive
(1) The Minister may give written directions to the chief executive about
the exercise of functions under this Act.
Example—direction
a direction to make policies or operating procedures to ensure that
functions are exercised in accordance with a particular decision of the Supreme
Court or a particular finding of a board of inquiry or royal
commission
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive must comply with a direction under this
section.
(3) A direction is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
25 Chief
executive may ask for assistance, etc
(1) The chief executive may ask a territory entity or an ACT education
provider to provide assistance, facilities or services relevant to the physical
or emotional wellbeing of a child or young person.
(2) A territory entity or a government school or school-related
institution that receives a request under subsection (1) must comply with the
request promptly.
(3) In this section:
ACT education provider means any of the following:
(a) a government or non-government school under the Education Act
2004;
(b) a school-related institution under the Education Act
2004;
(c) a registered training organisation under the Training and Tertiary
Education Act 2003;
(d) a higher education provider under the Training and Tertiary
Education Act 2003;
(e) an ACT university declared to be established or recognised as a
university under the Training and Tertiary Education Act 2003,
section 88 (Declaration of ACT university).
territory entity means any of the following:
(a) an administrative unit;
(b) a territory authority (other than the legal aid commission or the
human rights commission);
(c) a territory instrumentality;
(d) a public employee (other than a judge or magistrate);
(e) a police officer.
26 Chief
executive must give identity cards
(1) This section applies if the chief executive delegates a power under
this Act or another territory law to someone else (an authorised
person).
Note The chief executive may delegate a power under the Public
Sector Management Act 1994, s 36.
(2) The chief executive must give an authorised person an identity card
stating the person’s name and that the person is an authorised
person.
(3) The identity card must show—
(a) a recent photograph of the person; and
(b) the card’s date of issue and expiry; and
(c) anything else prescribed by regulation.
(4) A person commits an offence if the person—
(a) stops being an authorised person; and
(b) does not return the person’s identity card to the chief
executive as soon as practicable, but not later than 7 days after the day the
person stops being an authorised person.
Maximum penalty: 1 penalty unit.
(5) An offence against this section is a strict liability
offence.
(6) Subsection (3) applies only in relation to a card given by the
chief executive after the commencement of this section.
(7) Subsection (6) is a law to which the Legislation Act, section 88
(Repeal does not end effect of transitional laws etc) applies.
(8) Subsections (6) and (7) and this subsection expire on the day
they commence.
Part
2.2 Children and Youth Services
Council
27 Establishment
of council
The Children and Youth Services Council is established.
The Children and Youth Services Council has the following
functions:
(a) to report to the Minister, at the Minister’s request, on
anything relating to the operation or administration of this Act;
(b) to make recommendations to the Minister about services for children
and young people in the ACT.
The Children and Youth Services Council has at least 5, but not more
than 10, members.
30 Appointment
of council members
(1) The Minister may appoint the members of the Children and Youth
Services Council.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
Note 3 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
(2) The criteria for deciding whether to appoint a person as a member are
that the person—
(a) has expertise in relation to services for children or young people;
or
(b) represents the interests of children and young people; or
(c) represents the interests of kinship carers and foster carers;
or
(d) represents the interests of Aboriginal and Torres Strait Islander
people.
(3) The Minister must ensure that there is always at
least—
(a) 1 member who represents the interests of kinship carers and
foster carers; and
(b) 1 member who is an Aboriginal or Torres Strait Islander and who
represents the interests of Aboriginal and Torres Strait Islander people;
and
(c) 1 member who represents the interests of young people;
and
(d) 1 member who represents the interests of children.
(4) The appointment of a member is for the term stated in the
appointment.
(5) The conditions of appointment of a member are the conditions stated in
the appointment.
31 Appointment
of chair and deputy
(1) The Minister must appoint a chair and deputy chair for the Children
and Youth Services Council.
(2) The conditions of appointment of the chair are the conditions agreed
between the Minister and the chair, subject to any determination under the
Remuneration Tribunal Act 1995.
32 Ending
member appointments
The Minister may end the appointment of a member of the Children and Youth
Services Council—
(a) for misbehaviour; or
(b) if the member is convicted, or found guilty, in Australia of an
indictable offence; or
(c) if the member is convicted, or found guilty, outside Australia of an
offence that, if it had been committed in the ACT, would be an indictable
offence; or
(d) if the member is absent from 3 consecutive meetings of the council,
otherwise than on approved leave; or
(e) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the member’s functions.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
33 Presiding
member at meetings
(1) The chair presides at all meetings at which the chair is
present.
(2) If the chair is absent, the deputy chair presides.
Business may be carried on at a meeting of the Children and Youth Services
Council only if at least
1/2 the number of members
appointed are present.
(1) At a meeting of the Children and Youth Services Council, each member
has a vote on each question to be decided.
(2) A question is decided by a majority of the votes of the members
present and voting but, if the votes are equal, the member presiding has a
deciding vote.
36 Advice
and assistance by chief executive and public advocate
The chief executive and the public advocate must give the Children and
Youth Services Council the advice and assistance that the council reasonably
asks for.
Part
2.3 Official
visitors
37 Meaning
of entitled child or young person—pt 2.3
In this part:
entitled child or young person—
(a) means a child or young person who is—
(i) detained in a detention place; or
(ii) confined at a therapeutic protection place; or
(iii) accommodated in a place of care; and
(b) includes a young detainee who is 18 years old or older.
Note Investigative entity—see the dictionary.
38 Official
visitors—appointment
(1) The Minister must appoint at least 1 official visitor.
(2) The Minister may appoint a person as an official visitor only if
satisfied that the person has suitable qualifications or experience to exercise
the functions of an official visitor.
(3) However, the Minister must not appoint a person as an official visitor
unless the person—
(a) is not a public employee; and
(b) is a suitable entity.
(4) An appointment as an official visitor must not be for longer than
3 years.
(5) The conditions of appointment of an official visitor are the
conditions agreed between the Minister and the person, subject to any
determination under the Remuneration Tribunal Act 1995.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 Certain Ministerial appointments require consultation with an
Assembly committee and are disallowable (see Legislation Act,
div 19.3.3).
Note 3 A person may be reappointed to a position if the person is
eligible to be appointed to the position (see Legislation Act, s 208 and
dict, pt 1, def appoint).
39 Official
visitors—functions
(1) An official visitor’s functions are—
(a) to inspect—
(i) detention places (and places outside detention places where detainees
are, or have been, directed to work or participate in an activity);
and
(ii) therapeutic protection places; and
(iii) places of care; and
(b) to report to—
(i) the Minister under section 40; and
(ii) the chief executive under section 41 (2); and
(c) to receive and consider complaints from entitled children and young
people, and others on their behalf; and
(d) to be available to talk with entitled children and young people;
and
(e) to exercise any other function given to an official visitor under this
Act or another territory law.
(2) For subsection (1), an official visitor—
(a) must, if practicable, visit each detention place at least once each
fortnight; and
(b) must, if practicable, visit a therapeutic protection place at least
once each week if a child or young person is confined at the therapeutic
protection place; and
(c) must, if practicable, visit a place of care at least once each month
if a child or young person is being cared for at the place of care;
and
(d) may, at any reasonable time, enter a detention place (or any place
outside a detention place where detainees are, or have been, directed to work or
participate in an activity), therapeutic protection place or place of
care.
Example—time that would not be
reasonable
a time that would hinder a search, or coincide with an escape attempt, at a
detention place
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(3) An operating entity for a detention place, therapeutic protection
place or place of care must give an official visitor any reasonable assistance
the official visitor asks for to exercise the official visitor’s functions
at the place.
Examples
1 giving access to documents and records relating to a complaint
2 answering reasonable questions about the facts of a complaint
3 giving reasonable access to facilities
Note 1 The Legislation Act, s 170 deals with the application of the
privilege against selfincrimination.
Note 2 Operating entity—see the dictionary.
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) Before asking the operating entity for a detention place, therapeutic
protection place or place of care for assistance that involves the giving of
sensitive information, the official visitor must consider whether the complaint
would be better dealt with by, and should be referred to, an investigative
entity under section 49 (Complaints may be closed—referral to other
entity).
40 Official
visitors—reporting to Minister
(1) If an official visitor believes on reasonable grounds that either of
the following is not in accordance with this Act:
(a) the care provided to entitled children or young people at a detention
place or therapeutic protection place;
(b) the living conditions, education or activities of entitled children or
young people at a detention place or therapeutic protection place;
the official visitor must report the belief to the Minister in
writing.
(2) If an official visitor believes on reasonable grounds that the
detention of a child or young person at a detention place (including any aspect
of the treatment, living conditions, work or activities of the detainee) is not
in accordance with this Act, the official visitor must report the belief to the
Minister in writing.
41 Official
visitors—reporting to chief executive
(1) This section applies if an official visitor believes on reasonable
grounds that either of the following is not in accordance with this Act or the
out-of-home care standards:
(a) the care provided to entitled children or young people at a place of
care;
(b) the living conditions, education or activities of entitled children or
young people at a place of care.
Note The Minister may make out-of-home care standards under
s 886.
(2) The official visitor must report the belief to the chief executive in
writing.
42 Ending
appointment of official visitors
(1) The Minister may end a person’s appointment as an official
visitor—
(a) for misbehaviour; or
(b) if the person—
(i) does not inspect a detention place, therapeutic protection place or
place of care as required under the complaints guidelines made under section 43;
and
(ii) continues to fail to inspect the place as required for
4 consecutive weeks; or
(c) if the person is not a suitable entity.
(2) The Minister must end the person’s appointment as official
visitor—
(a) for physical or mental incapacity, if the incapacity substantially
affects the exercise of the person’s functions; or
(b) if the person fails to take all reasonable steps to avoid being placed
in a position where a conflict of interest arises during the exercise of the
person’s functions.
(3) A person’s appointment as official visitor ends, by force of
this section, if the person becomes a public employee.
Note A person’s appointment also ends if the person resigns
(see Legislation Act, s 210).
(1) The Minister may make guidelines, consistent with this part, about the
handling of complaints by official visitors.
(2) The guidelines must include a schedule that sets out—
(a) each detention place, therapeutic protection place and place of care
that an official visitor must inspect; and
(b) how often the official visitor must inspect each place.
(3) A guideline is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
44 Complaints
to official visitors
(1) An entitled child or young person, or anyone else, may complain to an
official visitor about any aspect of the child’s or young person’s
detention, confinement or accommodation including—
(a) the conditions of detention, confinement or accommodation of an
entitled child or young person; or
(b) the care provided to an entitled child or young person at a detention
place, therapeutic protection place or place of care; or
(c) how a detention place, therapeutic protection place or place of care
is conducted.
(2) The entitled child or young person may make the complaint to the
official visitor personally or through someone else.
(3) The entitled child or young person may ask the official visitor to
hear the complaint with no-one else present and, if so—
(a) the official visitor must comply; and
(b) the operating entity must provide reasonably private facilities for
the official visitor to hear the complaint.
45 Requests
to see official visitor
(1) This section applies if an entitled child or young person has told the
operating entity that the child or young person wants to see an official
visitor.
(2) The operating entity must ensure that an official visitor is told of
the request as soon as practicable, but not later than 12 hours after the
request is made.
(3) An entitled child or young person need not explain to the operating
entity why the child or young person wants to see an official visitor.
(1) This section applies if an official visitor receives a complaint about
a detention place, therapeutic protection place or place of care under
section 44.
(2) The official visitor must tell the chief executive, in writing, that a
complaint has been made and the name of the place to which it relates.
47 Official
visitors must try to resolve complaints
(1) After receiving a complaint under section 44, an official visitor
must take all reasonable steps to promptly and efficiently resolve the complaint
with the operating entity for the detention place, therapeutic protection place
or place of care.
(2) To resolve a complaint, the official visitor may—
(a) make inquiries about any matter raised in the complaint; and
(b) exercise any other function given to an official visitor under this
Act.
(3) The official visitor may also—
(a) make a recommendation about the complaint to the operating entity for
the detention place, therapeutic protection place or place of care; or
(b) give the chief executive or the Minister a report about the complaint
or any inquiries made about a matter raised in the complaint.
(4) This section is subject to the following sections:
(a) section 48 (Withdrawal of complaints);
(b) section 49 (Complaints may be closed—referral to other
entity);
(c) section 50 (Complaints may be closed—other entity
investigating);
(d) section 51 (Complaints closed—frivolous, etc);
(e) section 52 (Complaints closed—resolved);
(f) section 53 (Complaints closed—complainant left detention
etc).
48 Withdrawal
of complaints
(1) At any time, a complainant may, by written notice given to an official
visitor, withdraw a complaint.
(2) If a complaint is withdrawn, the official visitor to whom the
complaint was made must close the complaint if satisfied that the
complaint—
(a) is about a minor issue; or
(b) has been resolved appropriately; or
(c) has lapsed.
Example—par (c)
the entitled child or young person is no longer detained in a detention
place or confined at a therapeutic protection place
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(3) If the official visitor suspects on reasonable grounds that it is in
the public interest that a withdrawn complaint be considered, the official
visitor must—
(a) refer the complaint to the human rights commission for consideration
under the Human Rights Commission Act 2005, section 48 (3) (Consideration
without complaint or appropriate complainant); and
(b) close the complaint; and
(c) tell the complainant about the referral and closing of the
complaint.
(4) If the official visitor refers the complaint to the human rights
commission, the official visitor must give the human rights commission any
information that the official visitor has in relation to the
complaint.
49 Complaints
may be closed—referral to other entity
(1) This section applies if an official visitor—
(a) receives a complaint; and
(b) after considering the complaint, is satisfied that the complaint would
be better dealt with by an investigative entity with power to investigate the
complaint.
(2) The official visitor may refer the complaint to the investigative
entity.
(3) If the official visitor refers the complaint to an investigative
entity, the official visitor—
(a) must give the entity any information that the official visitor has in
relation to the complaint; and
(b) must tell the complainant about the referral; and
(c) may close the complaint.
50 Complaints
may be closed—other entity investigating
(1) This section applies if the official visitor—
(a) receives a complaint; and
(b) after considering the complaint, is satisfied that the substance of
the complaint has been, is being or will be investigated by an appropriate
investigative entity.
(2) The official visitor may—
(a) give the investigative entity any information that the official
visitor has in relation to the complaint; and
(b) close the complaint.
51 Complaints
closed—frivolous, etc
(1) This section applies if the official visitor —
(a) receives a complaint about a detention place, therapeutic protection
place or place of care; and
(b) after considering the complaint, is satisfied that the complaint is
frivolous, vexatious or not made honestly.
(2) The official visitor must close the complaint.
52 Complaints
closed—resolved
(1) This section applies if the official visitor—
(a) receives a complaint about a detention place, therapeutic protection
place or place of care; and
(b) is satisfied that the complaint is resolved—
(i) with the operating entity for the place; and
(ii) to the satisfaction of the complainant.
(2) The official visitor must close the complaint.
53 Complaints
closed—complainant left detention etc
(1) This section applies if the official visitor —
(a) receives a complaint about a detention place, therapeutic protection
place or place of care; and
(b) is satisfied that the complainant—
(i) has left the detention place, therapeutic protection place or place of
care; and
(ii) cannot be found after reasonable enquiry.
(2) The official visitor must close the complaint.
54 Complainant
must be told if complaint closed
(1) This section applies if an official visitor closes a complaint, other
than under section 48 (Withdrawal of complaints) or section 53 (Complaints
closed—complainant left detention etc).
(2) The official visitor must tell the complainant—
(a) that the official visitor has closed the complaint; and
(b) the reasons why the official visitor has closed the
complaint.
Example—reason for closing
complaint
the complaint has been referred to the human rights commission
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
55 Information
about complaints being investigated elsewhere
(1) This section applies if an official visitor has—
(a) referred a complaint under section 48 (3) (a) or
section 49 (2); or
(b) given an investigative entity information under section 50 in relation
to a complaint.
(2) The official visitor may ask the entity investigating the complaint
about the investigation of the complaint.
(3) The entity must tell the official visitor about the investigation of
the complaint.
(4) The official visitor may tell the complainant about progress of the
investigation of the complaint.
(1) This section applies if—
(a) a complaint about a detention place, therapeutic protection place or
place of care is resolved with the operating entity for the place; and
(b) as part of resolving the complaint, the operating entity agrees to do,
or not do, something; and
(c) an official visitor is satisfied that the operating entity has not
done what was agreed.
(2) The official visitor may reopen the complaint.
(3) If the official visitor reopens a complaint, the official visitor must
try to resolve the complaint under section 47.
57 Other
matters of concern—referral to other entity
(1) This section applies if—
(a) an official visitor becomes aware of a matter that may be the subject
of a complaint to an official visitor under section 44; and
(b) no complaint is made under section 44 about the matter;
and
(c) the official visitor is satisfied that the matter should be dealt with
by an investigative entity with power to investigate the matter.
(2) The official visitor may do either or both of the following:
(a) tell the chief executive about the matter;
(b) refer the matter to the investigative entity.
(3) If the official visitor refers the matter to an investigative entity,
the official visitor must give the entity or the chief executive any information
that the official visitor has in relation to the matter.
58 Monthly
reports by official visitors
(1) As soon as practicable after the end of each month, an official
visitor must give the Minister and the chief executive a written report for the
month summarising—
(a) the number and kinds of complaints received by the official visitor;
and
(b) the action taken on the complaints received; and
(c) the number and kinds of matters referred by the official visitor to an
investigative entity under section 57.
(2) The monthly report may include comments by the official visitor about
anything in relation to a complaint to which the report applies.
(3) However, an official visitor may only include in a monthly report
material that may be adverse to, or critical of, a person if the official
visitor has given the person an opportunity to be heard.
(4) This section applies whether or not the adverse or critical material
is—
(a) express or implicit; or
(b) by way of opinion or otherwise.
59 Handover
of records by official visitors
(1) This section applies if a person’s appointment as official
visitor ends.
(2) The person must, not later than 7 days after the day the appointment
ends, give any official visitor record held by the person to the public advocate
or another official visitor.
(3) To remove any doubt, an official visitor record received by the public
advocate or an official visitor under this section is a record of the activities
of the administrative unit responsible for the administration of this section
for the Territory Records Act 2002.
(4) In this section:
official visitor record held by a person,
means—
(a) a record made or received by the person because of the person’s
functions as official visitor; or
(b) information held by the person because of the person’s functions
as official visitor.
Part
2.4 Suitable entities for purposes
under Act
60 Definitions—Act
and pt 2.4
(1) In this Act:
suitability information—see section 65.
suitable entity—see section 61.
(2) In this part:
requirement notice—see section 68 (2).
suitability information notice—see section 66
(2).
suitable entities register—see
section 72.
61 Who
is a suitable entity?
In this Act:
suitable entity, for a stated purpose, means an entity
approved by the chief executive under section 63 as a suitable entity for
the purpose.
Examples—suitable entities for
purposes stated in Act
1 family group conference facilitators—someone appointed under
s 78 by the chief executive
2 kinship carers—a family member or significant person authorised
under s 515 by the chief executive
3 foster care service—an entity authorised under s 516 by the chief
executive
4 foster carers for a stated child or young person—someone
specifically authorised under s 517 by the chief executive
5 foster carers for any child or young person—someone generally
authorised under s 518 by the chief executive
6 residential care services for any child or young person—an entity
authorised under s 519 by the chief executive
7 childcare service licences—the proposed proprietor and each
proposed controlling person for the childcare service (see s 745)
8 research projects—the researcher and any other person who is to
have contact with children or young people for the project (see
s 808)
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
62 Entity
may apply to be suitable entity for purpose
An entity may apply, in writing, to the chief executive for approval as a
suitable entity for a stated purpose.
Note If a form is approved under s 885 for this provision, the
form must be used.
63 Chief
executive may approve suitable entity for purpose
(1) The chief executive may, in writing, approve an entity as a suitable
entity for a stated purpose if satisfied that the entity is suitable for the
purpose.
Note 1 Power given by a law to make a decision includes power to
reverse or change the decision. The power to reverse or change the decision is
exercisable in the same way, and subject to the same conditions, as the power to
make the decision (see Legislation Act, s 180).
Note 2 The chief executive must establish a suitable entities
register (see s 72).
(2) However, if the chief executive orally authorises a person or entity
under section 515 (Authorisation of kinship carer—specific parental
authority), section 517 (Authorisation of foster carer—specific
parental authority) or section 518 (Authorisation of foster
carer—general parental authority) in relation to a child or young person,
the chief executive—
(a) may, at the same time, orally approve the person or entity as a
suitable entity in relation to the child or young person; and
(b) if the chief executive approves the person or entity under paragraph
(a)—must, as soon as practicable, approve the person or entity in
writing.
64 Chief
executive must consider suitability information, etc
(1) In deciding whether an entity is a suitable entity for a stated
purpose, the chief executive—
(a) must consider each of the following:
(i) suitability information under section 65 (1), definition of
suitability information, paragraphs (a), (b) and (c) about the
entity;
(ii) if the chief executive requires the entity to provide a reference or
report under section 68 (2) (a)—the reference or
report;
(iii) if the chief executive requires the entity to undergo a test or
medical examination under section 68 (2) (b)—the result of
the test or medical examination; and
(b) may consider suitability information under section 65 (1),
definition of suitability information, paragraphs (d), (e), (f),
(g) and (h) about the entity.
(2) If the chief executive is considering suitability information under
section 65 (1), definition of suitability information,
paragraph (d) or (e), the chief executive must give the entity written notice of
that fact.
Note See also s 70 (Offence—ongoing duty to update suitability
information).
65 What
is suitability information?
(1) In this Act:
suitability information, about an entity, means information
about the following:
(a) any conviction of, or finding of guilt against, the entity
for—
(i) an offence relating to the provision of services for children or young
people; or
(ii) an offence against a child or young person; or
(iii) an offence involving a child or young person; or
(iv) an offence involving violence; or
(v) a sex offence; or
(vi) an offence involving dishonesty or fraud; or
(vii) an offence involving possession of, or trafficking in, a drug of
dependence or controlled drug; or
(viii) an offence against an animal;
(b) any proven noncompliance by the entity with a legal obligation in
relation to providing services for children or young people;
Example
the entity is a licensed proprietor of a childcare service and the licence
is suspended for safety reasons under s 762 or under a law of another
jurisdiction that substantially corresponds to s 762
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and
s 132).
(c) any refusal of an application for a licence or other authority
(however described) in relation to providing services for children or young
people;
(d) the soundness of the entity’s financial reputation and the
stability of the entity’s financial background;
(e) the entity’s reputation for honesty and integrity;
(f) whether the entity has proven experience or demonstrated capacity in
providing services for children and young people;
(g) whether a child concern report about the entity has been received by
the chief executive and any action that has been taken in response to the report
by the chief executive or a court or tribunal;
(h) for an entity in relation to suitability for the purpose of foster
care—information in paragraphs (a) to (g) for each other adult member of
the entity’s household;
(i) any other consideration relevant to the entity’s ability to
provide high quality services for children or young people.
(2) To remove any doubt, the information may be about any circumstance or
thing mentioned in subsection (1) whether inside or outside the ACT.
Example
refusal in Queensland of an application for a licence in relation to
providing services for children or young people
66 Chief
executive may require suitability information
(1) This section applies if the chief executive is making a decision about
whether an entity is a suitable entity for a stated purpose.
(2) The chief executive may, by written notice given to the entity
(a suitability information notice), require the entity to
give the chief executive stated suitability information about the entity not
later than a stated reasonable time.
(3) A suitability information notice must also tell the entity that giving
false or misleading information is an offence against the Criminal Code,
section 338 (Giving false or misleading information).
67 Chief
executive need not decide suitability if information not
provided
(1) This section applies if—
(a) the chief executive has given an entity a suitability information
notice; and
(b) the entity does not give the chief executive the suitability
information in accordance with the notice.
(2) The chief executive need not decide whether the entity is a suitable
entity for a stated purpose.
68 Chief
executive may require test etc
(1) This section applies if the chief executive is making a decision about
whether an entity is a suitable entity for a stated purpose.
(2) The chief executive may, by written notice given to the entity
(a requirement notice), require the entity to do any or all
of the following not later than a stated reasonable time:
(a) provide a stated reference or report;
(b) undergo a stated test or medical examination.
Example—medical
examination
a psychiatric examination
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and
s 132).
69 Chief
executive need not decide suitability if test not taken,
etc
(1) This section applies if—
(a) the chief executive has given the entity a requirement notice;
and
(b) the entity does not do the thing required in accordance with the
requirement notice.
(2) The chief executive need not decide whether the entity is a suitable
entity for a stated purpose.
70 Offence—ongoing
duty to update suitability information
(1) This section applies to an entity if—
(a) either—
(i) the chief executive is deciding whether the entity is a suitable
entity for a stated purpose; or
(ii) the chief executive has decided that the entity is a suitable entity
for a stated purpose and the entity is exercising functions for the purpose;
and
(b) the entity has given the chief executive suitability information about
the entity.
Note Suitability
information is defined in s 65.
(2) The entity commits an offence if—
(a) the entity’s suitability information under
section 65 (1), definition of suitability information,
paragraph (a), (b) or (c) changes; and
(b) the entity does not tell the chief executive about the change as soon
as practicable, but not later than 7 days after the change
happens.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) The entity commits an offence if—
(a) the chief executive gave the entity written notice that the
suitability information under section 65 (1), definition of
suitability information, paragraph (d) was being considered in
deciding whether the entity was a suitable entity; and
(b) the entity becomes bankrupt or executes a personal insolvency
agreement; and
(c) the entity does not tell the chief executive about the bankruptcy or
agreement as soon as practicable, but not later than 7 days after the
bankruptcy happens or agreement is executed.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(4) The entity commits an offence if—
(a) the chief executive gave the entity written notice that the
suitability information under section 65 (1), definition of
suitability information, paragraph (e) was being considered in
deciding whether the entity was a suitable entity; and
(b) any of the following makes an adverse finding against the
entity:
(i) a court or tribunal;
(ii) an authority or person with power to require the production of
documents or the answering of questions; and
Examples—subpar (ii)
1 commissioner for fair trading
2 human rights commission
3 discrimination commissioner
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(c) the entity does not tell the chief executive about the finding as soon
as practicable, but not later than 7 days after the finding is
made.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note Power given by a law to make a decision includes power to
reverse or change the decision. The power to reverse or change the decision is
exercisable in the same way, and subject to the same conditions, as the power to
make the decision (see Legislation Act, s 180).
71 Chief
executive may employ etc suitable entity
The chief executive may appoint, engage, employ or authorise a suitable
entity for a stated purpose (whether for payment or as a volunteer) for children
and young people under this Act.
72 Suitable
entities register
(1) The chief executive must establish a register of suitable entities
(a suitable entities register) for this Act.
(2) A suitable entities register must include the following details for
each suitable entity:
(a) the entity’s name;
(b) the purpose for which the entity is approved;
(c) any other detail the chief executive considers appropriate.
Note Power to make a statutory instrument includes power to make
different provision for different categories (see Legislation Act, s
48).
Chapter
3 Family group
conferences
Part
3.1 Family group
conferences—general
In this Act:
family group conference—see section 75.
family group conference agreement—see
section 76.
family group conference facilitator means a family group
conference facilitator appointed under section 78.
participant, for a family group conference, means a person
who attends the conference at the invitation of the family group conference
facilitator.
parties, for a family group conference agreement, means the
participants who enter (or propose to enter) a family group conference agreement
under section 85.
relevant conference participant, for a family group
conference about a child or young person, means a participant who has parental
responsibility for the child or young person.
Note Parental responsibility, for a child or young person, is
dealt with in div 1.3.2.
74 Family
group conferences—objects
The objects of a family group conference about a child or young person are
to—
(a) encourage the child or young person and his or her family members, to
take part in decisions affecting the child or young person; and
(b) increase the support for the child or young person by his or her
family members and significant people; and
(c) make arrangements for the care of the child or young person to reduce
the likelihood of the child or young person being in need of care and protection
in the future.
75 What
is a family group conference?
In this Act:
family group conference means a conference about a child or
young person to give the participants an opportunity to—
(a) reach an agreement about a matter relating to the wellbeing of the
child or young person; and
(b) enter into a family group conference agreement detailing the agreed
arrangements for the wellbeing of the child or young person; and
(c) if a family group conference agreement is already in force for the
child or young person—review the agreement.
76 What
is a family group conference agreement?
(1) In this Act:
family group conference agreement means an agreement
that—
(a) arises from a family group conference about a child or young person;
and
(b) is between—
(i) the chief executive; and
(ii) a relevant conference participant; and
(iii) for an agreement about a young person who is school-leaving age or
older—the young person; and
(c) details the arrangements agreed to by the parties for the wellbeing of
the child or young person; and
(d) is in writing and signed by—
(i) the chief executive; and
(ii) the relevant conference participant; and
(iii) any other conference participant who agrees with the arrangements;
and
(e) may, but need not, include a requirement for the chief executive to
arrange for a family group conference to review the family group conference
agreement not later than a stated day.
(2) However, a family group conference agreement must not—
(a) transfer parental responsibility for the child or young person from a
person to the chief executive; or
(b) share parental responsibility for the child or young person with the
chief executive.
77 Offence—publish
details of family group conferences
(1) A person commits an offence if the person publishes all or part
of—
(a) a family group conference agreement; or
(b) a family group conference outcome report; or
(c) a record or report prepared for and presented to a family group
conference.
Maximum penalty: 50 penalty units.
(2) A person commits an offence if the person publishes anything said or
done at a family group conference.
Maximum penalty: 50 penalty units.
(3) This section does not apply if the publication is made under this Act
or another territory law.
Note Chapter 25 contains further provisions about information
secrecy and sharing.
Part
3.2 Family group
conferences—facilitators
78 Family
group conference facilitators—appointment
(1) The chief executive may appoint a person as a facilitator (a
family group conference facilitator) for this chapter.
Note For the making of appointments (including acting appointments),
see the Legislation Act, pt 19.3.
(2) However, the chief executive may appoint a person to be a family group
conference facilitator only if satisfied—
(a) that the person has suitable qualifications and experience to exercise
the functions of a family group conference facilitator; and
(b) if the person is not a public employee—that the person is a
suitable entity to be a family group conference facilitator.
Note Suitable entities to provide services are dealt with in pt
2.4.
(3) An appointment is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
79 Family
group conference facilitators—functions
A family group conference facilitator has the function of facilitating each
family group conference to which the facilitator is assigned by the chief
executive under section 82.
Examples—ways facilitator may
facilitate family group conference
1 preparing for a family group conference by—
(a) meeting with proposed participants; and
(b) providing mediation between proposed participants; and
(c) resolving conflict between proposed participants
2 consulting someone with knowledge of a particular culture
3 asking someone to give information or a report to the conference without
inviting the person to be a participant
4 inviting someone to attend the conference as a participant, at any
time
5 allowing someone to take part in the conference by telephone,
video-conference or in another way
6 deciding when and where the family group conference will take
place
Note 1 A family group conference facilitator may give the chief
executive protected information (including sensitive information) about a child
or young person if the family group conference facilitator considers that giving
the information is in the best interests of the child or young person
(see s 850).
Note 2 A provision of a law that gives an entity (including a
person) a function also gives the entity powers necessary and convenient to
exercise the function (see Legislation Act, s 196 and dict, pt 1, def
entity).
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
3.3 Family group
conferences—arrangement and conduct
80 Family
group conferences—criteria
(1) The chief executive may arrange for a family group conference about a
child or young person if satisfied that the family group conference may help to
promote the wellbeing and best interests of the child or young person.
Examples
1 if a family group conference agreement is already in force for the child
or young person and the chief executive considers that the agreement should be
reviewed
2 if the child or young person is in out-of-home care and the chief
executive considers that a family group conference may promote the child’s
or young person’s contact with his or her family members or significant
people
3 if the child or young person is about to be released from a detention
place and the chief executive considers that a family group conference may help
the child’s or young person’s transition back into the
community
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive may also arrange for a family group conference
about a child or young person if the chief executive believes on reasonable
grounds that—
(a) the child or young person is in need of care and protection;
and
(b) arrangements should be made to secure the child’s or young
person’s care and protection.
Examples
1 The chief executive has appraised 3 child protection reports in relation
to neglect of 2 year old Billy. Billy’s parents have longstanding drug and
alcohol use issues. The chief executive believes that Billy is in need of care
and protection and arranges a family group conference involving Billy’s
family members to formulate a plan for Billy’s care and
protection.
2 Jane is 14 years old and frequently absconds from her parent’s home
for extended periods because of conflict with her parents. The chief executive
believes Jane is in need of care and protection and arranges a family group
conference to ensure Jane’s care and protection.
3 The chief executive appraises a child protection report of sexual abuse
in relation to 8 year old Sally. The chief executive substantiates the abuse by
Sally’s stepfather and decides that Sally is in need of care and
protection. The chief executive decides to arrange a family group conference
for Sally’s care and protection as an alternative to seeking a care and
protection order for Sally.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
81 Family
group conferences—criteria for review conference
(1) This section applies if a family group conference agreement is in
force for a child or young person.
(2) The chief executive must arrange for a family group conference to
review the family group conference agreement if the chief executive
is—
(a) required to do so in the agreement; or
(b) asked to do so by—
(i) the child or young person; or
(ii) a participant in the family group conference at which the family
group conference agreement was reached.
(3) However, the chief executive is not required to arrange a family group
conference under subsection (2) (b) if the chief
executive—
(a) has already arranged a conference to review the agreement because of a
request under subsection (2) (b); or
(b) considers it is not in the best interests of the child or young person
to do so.
82 Family
group conferences—facilitator to organise
(1) If the chief executive arranges a family group conference about a
child or young person, the chief executive must assign a family group conference
facilitator to the conference.
(2) The family group conference facilitator must, as soon as practicable
after being assigned to the family group conference—
(a) decide, under section 83 (1) (b) to (e), who should be
invited to the conference; and
(b) take reasonable steps to tell each person to be invited to the
conference when and where the conference will take place; and
(c) conduct the conference.
83 Family
group conferences—who must be invited
(1) A family group conference facilitator for a family group conference
must take all reasonable steps to invite the following people to the
conference:
(a) the chief executive;
(b) if the family group conference facilitator is satisfied that the child
or young person can understand and take part in the conference—the child
or young person;
(c) each parent of the child or young person, unless the family group
conference facilitator considers that it would not be in the best interests of
the child or young person for the parent to attend;
(d) each other person (if any) who has parental responsibility for the
child or young person, unless the family group conference facilitator considers
that it would not be in the best interests of the child or young person for the
person to attend;
Note Parental responsibility, for
a child or young person, is dealt with in div 1.3.2.
(e) any person with an interest in, or knowledge of, the care, wellbeing
or development of the child or young person who the family group conference
facilitator considers should attend the conference.
(2) If a child or young person invited to a family group conference does
not take part in the conference, the family group conference facilitator must
take all reasonable steps—
(a) to find out the views and wishes of the child or young person;
and
(b) to make the views and wishes of the child or young person known to
each other person taking part in the conference; and
(c) to ensure that the views and wishes of the child or young person are
considered in reaching any agreement at the conference.
(3) Subsection (2) does not create any requirement for a child or young
person to express a view or wish about any matter.
(4) A participant may not be represented at a family group conference by a
lawyer.
(5) However, for a participant mentioned in subsection (1) (b), (c), (d)
or (e), a support person chosen by the participant may attend the family
group conference to assist the participant if the family group conference
facilitator considers the support person appropriate and capable of giving the
participant assistance.
Example—assistance
assisting the participant to express his or her views
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
84 Family
group conferences—compliance with standards
A family group conference facilitator must conduct a family group
conference in a way that complies with the family group conference standards (if
any).
Note The Minister may make family group conference standards under
s 886.
85 Family
group conferences—parties reach agreement
(1) This section applies if the family group conference facilitator for a
family group conference about a child or young person is satisfied that the
chief executive and all relevant conference participants
(the parties) have reached agreement about an issue relating
to the wellbeing of the child or young person.
Note Relevant conference participant means a participant who
has parental responsibility for the child or young person
(see s 73).
(2) The facilitator may propose that the parties enter into a family group
conference agreement detailing the agreed arrangements for the wellbeing of the
child or young person.
(3) Before the parties enter into a family group conference
agreement—
(a) the facilitator must—
(i) give the relevant conference participants an opportunity to get legal
advice about the meaning and effect of the proposed family group conference
agreement; and
(ii) if the facilitator is satisfied that the child or young person has
sufficient maturity and developmental capacity to understand the proposed family
group conference agreement—
(A) find out and consider the child’s or young person’s views
and wishes about the proposed family group conference agreement; and
(B) if the proposed family group conference agreement is about a young
person who is school-leaving age or older—give the young person an
opportunity to get legal advice about the meaning and effect of the proposed
family group conference agreement; and
(b) for a family group conference agreement reached at a family group
conference arranged under section 80 (2) (Family group
conferences—criteria)—the chief executive must be satisfied that the
proposed family group conference agreement is in the best interests of the child
or young person.
86 Family
group conferences—agreement of young person
(1) This section applies if a family group conference agreement proposed
under section 85 (2) is about a young person who is
school-leaving age or older.
Note School-leaving age is 15 years old (see dict).
(2) The parties may enter the proposed family group conference agreement
only if the facilitator for the family group conference is satisfied that the
young person either—
(a) agrees to the proposed family group conference agreement; or
(b) does not have sufficient maturity or developmental capacity to
understand and agree to the proposed family group conference
agreement.
87 Family
group conferences—before family group conference
agreement
(1) This section applies if the family group conference facilitator for a
family group conference about a child or young person—
(a) has, under section 85—
(i) proposed that the parties enter into a family group conference
agreement; and
(ii) given the relevant conference participants an opportunity to get
legal advice; and
(iii) if required, found out and considered the child’s or young
person’s views and wishes; and
(b) for a young person who is school-leaving age or older—is
satisfied under section 86 that the young person either—
(i) agrees to the proposed family group conference agreement; or
(ii) does not have sufficient maturity or developmental capacity to
understand and agree to the proposed family group conference
agreement.
(2) The facilitator must encourage the parties to enter into the proposed
family group conference agreement by putting the agreement in writing and
seeking—
(a) the signatures of the parties; and
(b) the signature of any other participant who agrees with the
arrangements in the agreement.
(3) If the child or young person (not being a young person mentioned in
subsection (1) (b)) agrees to the proposed family group conference
agreement, the child or young person may also sign the agreement.
88 Family
group conferences—outcome report
(1) Within 28 days after a family group conference ends, the family group
conference facilitator must give a written report about the outcome of the
conference (the family group conference outcome report)
to—
(a) the chief executive; and
(b) the child or young person; and
(c) each person invited to attend the conference.
(2) A family group conference outcome report must include the
following:
(a) details of when and where the conference took place;
(b) the name of—
(i) the family group conference facilitator; and
(ii) each person invited to the conference and whether they attended;
and
(iii) the name of anyone else who was not a participant but who provided
information or a report to the conference.
(3) If the conference resulted in a family group conference agreement, the
family group conference outcome report must include a copy of the agreement.
(4) Despite anything else in this section, the family group conference
facilitator must not give a copy of the family group conference outcome report,
or a copy of the family group conference agreement, to the child or young person
if the facilitator believes on reasonable grounds—
(a) that it would not be in the child’s or young person’s best
interests to be given information contained in the report or agreement;
or
(b) that the child or young person is not able to understand the report or
agreement.
89 Family
group conference agreement—when takes effect
A family group conference agreement takes effect—
(a) when it has been signed by all parties to the agreement; or
(b) if the parties agree to a later time of effect—at that
time.
90 Family
group conference agreements—implementation
After receiving a family group conference agreement, the chief executive
must implement the arrangements in the agreement in a way that complies with the
family group conference standards (if any).
Note 1 The Minister may make family group conference standards under
s 886.
Note 2 The parties to a family group conference agreement may agree
that parental responsibility for a child or young person be transferred to, or
shared with, someone else (other than the chief executive (see s 76)).
If the family group conference was arranged because the chief executive believed
the child or young person to be in need of care and protection, the Childrens
Court may be able to register the family group conference agreement. A
registered family group conference agreement has effect as if it were a care and
protection order and may be enforced accordingly. Registration of family group
conference agreements is dealt with in pt 12.2.
Chapter
4 Children and young people and
criminal matters—general
91 What
are the criminal matters chapters?
In this Act:
criminal matters chapter—each of the following is a
criminal matters chapter:
(a) this chapter;
(b) chapter 5 (Criminal matters—transfers);
(c) chapter 6 (Criminal matters—detention places);
(d) chapter 7 (Criminal matters—search and seizure at detention
places);
(e) chapter 8 (Criminal matters—discipline at detention
places);
(f) chapter 9 (Criminal matters—conduct of disciplinary
reviews).
92 Overview
of the criminal matters chapters
(1) This chapter sets out the principles (the youth justice principles)
that apply in the criminal matters chapters, sets out general rules about
keeping young detainees separate from adult detainees and defines some important
concepts.
(2) Chapter 5 deals with transfers of young detainees and young
offenders.
(3) Chapter 6 deals with detention places generally.
(4) Chapter 7 deals with search and seizure at detention places.
(5) Chapter 8 deals with the discipline of young detainees at detention
places.
(6) Chapter 9 deals with the conduct of disciplinary reviews.
Note Other laws relevant to children and young people and criminal
matters include the following:
• the Crimes Act 1900, pt 10
(Criminal investigation) and the Crimes Act 1914 (Cwlth), pt 1C (which
applies in relation to the investigation of certain ACT
offences)
• the Bail Act
1992
• the Magistrates Court Act 1930
(in particular ch 4A (The Childrens Court))
• the Supreme Court Act
1933
• the Court Procedures Act 2004
(in particular pt 7A (Procedural provisions—proceedings involving
children or young people))
• the Crimes (Sentencing) Act 2005
(in particular ch 8A (Sentencing young offenders))
• the Crimes (Sentence Administration)
Act 2005 (in particular ch 14A (Sentence administration—young
offenders))
• the Crimes (Restorative Justice) Act
2004
93 Application
of criminal matters chapters generally
(1) The criminal matters chapters apply to young offenders and young
detainees who are adults in the same way as they apply to young offenders and
young detainees who are under 18 years old.
(2) However, the following provisions apply only to young detainees who
are under 18 years old:
(a) section 184 (2) (m) (Register of young detainees);
(b) section 254 (Strip searches of young detainees under 18 years
old—no-one with parental responsibility available);
(c) section 266 (Body searches of young detainees under 18 years
old—no-one with parental responsibility available).
(3) Also, certain requirements of the following provisions are different
for young detainees who are under 18 years old and young detainees who are
adults:
(a) section 112 (Transfer—notifying people responsible for or
nominated by young detainees);
(b) section 156 (Detention—notifying people responsible for or
nominated by young detainees);
(c) section 181 (Injury etc—notifying people responsible for or
nominated by young detainees);
(d) section 206 (Notice of segregation directions—safe room and
other);
(e) section 220 (Notice of decision about segregation
direction);
(f) section 236 (Alcohol and drug testing of young
detainees);
(g) section 250 (Notice of strip and body searches—person
responsible for or nominated by young detainee);
(h) section 253 (Strip searches on admission to detention
place);
(i) section 265 (People present at body searches).
94 Youth
justice principles
(1) For the criminal matters chapters, in deciding what is in the best
interests of a child or young person, a decision-maker must consider each of the
following matters that is relevant (the youth justice
principles):
(a) if a child or young person does something that is contrary to law, he
or she should be encouraged to accept responsibility for the behaviour and be
held accountable;
(b) a child or young person should be dealt with in a way that
acknowledges his or her needs and that will provide the opportunity to develop
in socially responsible ways;
(c) a child or young person should be consulted about, and be given the
opportunity to take part in making, decisions that affect the child or young
person, to the maximum extent possible taking into consideration their age,
maturity and developmental capacity;
(d) if practicable and appropriate, decisions about an Aboriginal and
Torres Strait Islander child or young person should be made in a way that
involves their community;
(e) if a child or young person is charged with an offence, he or she
should have prompt access to legal assistance, and any legal proceeding relating
to the offence should begin as soon as possible;
(f) a child or young person may only be detained in custody for an offence
(whether on arrest, on remand or under sentence) as a last resort and for the
minimum time necessary;
(g) children, young people and other young offenders should be dealt with
in the criminal law system in a way consistent with their age, maturity and
developmental capacity and have at least the same rights and protection before
the law as would adults in similar circumstances;
(h) on and after conviction, it is a high priority to give a young
offender the opportunity to re-enter the community;
(i) it is a high priority that intervention with young offenders must
promote their rehabilitation, and must be balanced with the rights of any victim
of the young offender’s offence and the interests of the
community.
(2) The decision-maker may also consider any other relevant
matter.
(3) The youth justice principles are intended to be interpreted
consistently with relevant human rights instruments and jurisprudence.
Example
Convention on the Rights of the Child
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) A reference in subsection (1) to a child or young person includes
a reference to a person who is at least 18 years old but is being dealt with in
relation to an offence committed, or alleged to have been committed, when her or
she was under 18 years old.
95 Who
is a young detainee?
(1) A child or young person is a young detainee
if—
(a) the child or young person is—
(i) in custody following arrest; or
(ii) remanded in custody under the Crimes (Sentence Administration) Act
2005; or
(iii) in detention under the Crimes (Sentencing) Act 2005;
or
(iv) otherwise in custody or detention under this Act or another territory
law or a law of the Commonwealth or a State; and
(b) the child or young person is required to be held in the chief
executive’s custody.
(2) A person who is at least 18 years old but under 21 years old is a
young detainee if any of the following apply to the person and the
person is required to be held in the chief executive’s custody:
(a) the person is—
(i) in custody following arrest; or
(ii) remanded in custody under the Crimes (Sentence Administration) Act
2005; or
(iii) in detention under the Crimes (Sentencing) Act 2005;
for an offence committed, or allegedly committed, when the person was under
18 years old;
(b) the person is—
(i) in custody following arrest; or
(ii) remanded in custody under the Crimes (Sentence Administration) Act
2005;
for a breach, or alleged breach, of a sentencing order that is supervised
by the chief executive;
(c) the person is otherwise in custody or detention under this Act or
another territory law or a law of the Commonwealth or a State.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
96 Who
is a youth detention officer?
In the criminal matters chapters:
youth detention officer means an authorised person to whom
the chief executive has delegated functions of a youth detention officer under
the criminal matters chapters.
Note A person is an authorised person for this Act if the chief
executive delegates a power under the Act to the person.
97 Treating
doctors—health service appointments
(1) The chief executive responsible for the administration of the
Health Act 1993 must appoint a doctor (a treating doctor)
for each detention place.
(2) The treating doctor’s functions are—
(a) to provide health services to young detainees; and
(b) to protect the health of young detainees (including preventing the
spread of disease at detention places).
(3) A treating doctor appointed for a detention place must be available to
provide health services at the detention place at least once each
week.
(4) The treating doctor may give written directions to the chief executive
for subsection (2) (b).
(5) The chief executive must ensure that each direction under subsection
(4) is complied with unless the chief executive believes on reasonable grounds
that compliance would undermine security or good order at the detention
place.
98 Health
professionals—non-treating functions
(1) The chief executive may, orally or in writing, authorise a health
professional (a non-treating health professional) to exercise
non-treating functions under the criminal matters chapters.
Note Health professional includes a doctor and nurse
registered under the Health Professionals Act 2004 (see dict).
(2) In this section:
non-treating function does not include a health service or
other function mentioned in section 97.
99 Transporting
young detainees to and from court—young detainees to be kept separate from
adult detainees
(1) This section applies if it is necessary to transport a young detainee
who is under 18 years old—
(a) from a detention place to a court; or
(b) from a court to a detention place.
(2) The young detainee must not be transported with an adult who is under
detention.
(3) The young detainee must not be placed in a room with an adult who is
under detention.
100 Detaining
young detainees at court—young detainees to be kept separate from adult
detainees
(1) This section applies if a young detainee who is under 18 years old has
been transported—
(a) from a detention place to a court; or
(b) from a court to a detention place.
(2) The young detainee may be detained at the court—
(a) before a hearing relating to the young detainee; or
(b) after a hearing relating to the young detainee but before the young
detainee is transported to the detention place.
(3) However, the young detainee must not be placed in a room with an adult
who is under detention.
Note The Corrections Management Act 2007, s 33 (Detention in
court cells) and s 33A (Detention in court cells—additional provisions for
young detainees) also apply to young detainees.
Chapter
5 Criminal
matters—transfers
Part
5.1 Transfers within
ACT
Division
5.1.1 Transfers within
ACT—general
101 Directions
to escort officers
(1) For the criminal matters chapters, the chief executive may give
directions to an escort officer in relation to a young detainee, including
directions to take the young detainee into custody or to a place stated in the
direction.
(2) Without limiting the authority that may be given by a direction under
subsection (1), the direction authorises the escort officer to have custody of,
and deal with, the young detainee in accordance with the direction.
102 Orders
to bring young detainee before court etc
(1) This part is additional to, and does not limit, any other power of a
court or other entity to require a young detainee or other child or young person
to be brought before the court or entity.
(2) Without limiting subsection (1), the chief executive must arrange for
a young detainee or child or young person in the chief executive’s custody
to be brought before a court or other entity in accordance with any order or
direction (however described) of the court or entity.
Division
5.1.2 Escorting young detainees
etc
103 Escort
officer functions etc
(1) This section applies if, under a law in force in the Territory (other
than part 5.2 (Interstate transfers)), a young detainee required to be held in
the chief executive’s custody is to be escorted anywhere by an escort
officer.
(2) To remove any doubt—
(a) the escort officer is authorised to have custody of the young detainee
for the purpose of escorting the young detainee; and
(b) the young detainee is also taken to be in the chief executive’s
custody; and
(c) an escort officer may, for the purpose of escorting the young
detainee, exercise any function under this Act that the officer may exercise in
relation to a young detainee admitted at a detention place.
Examples—functions—par
(c)
1 functions delegated to the officer by the chief executive (for example,
giving directions to young detainees)
2 youth detention officer’s functions under ch 7 (Criminal
matters—search and seizure at detention places), including any use of
force in accordance with div 6.6.4
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
104 Escorting
arrested person to court etc
(1) This section applies if an arrested person—
(a) has not been released on bail; and
(b) is in police custody; and
(c) is required by law to be brought before a court or tribunal.
(2) A police officer may require an escort officer to bring the arrested
person before the court or tribunal.
(3) The escort officer must bring the arrested person before the court or
tribunal and, for that purpose, may—
(a) take the arrested person into custody; and
(b) arrange for the arrested person to be detained under this Act until
the arrested person is brought before the court or tribunal.
(4) In this section:
arrested person means—
(a) a child or young person who is arrested; or
(b) someone else who is under 21 years old and is arrested in relation to
an offence he or she is alleged to have committed when under 18 years
old.
105 Custody
etc during proceedings
Subject to any order or direction of a court, an escort officer who is
required to bring a young detainee to a court must, as far as practicable,
ensure—
(a) the safe custody of the young detainee for the purposes of the
proceeding; and
(b) that the young detainee does not obstruct or hinder the
proceeding.
106 Executing
warrants of commitment or remand etc
(1) The chief executive may make escort officers available to attend at a
court or tribunal—
(a) to take a young detainee into custody; or
(b) to arrange for a young detainee be kept in custody; or
(c) to transfer or otherwise deal with a young detainee.
(2) An order or direction of the court or tribunal addressed to all
escorts—
(a) is taken to be addressed to each escort; and
(b) may be executed by any escort.
107 Other
powers not limited
To remove any doubt, this division is additional to, and does not limit,
any other provision relating to the escorting of young detainees under a
territory law or a law of the Commonwealth or a State.
Examples—other
provisions
1 the Crimes (Sentence Administration) Act 2005, pt 3.3
(Committal—miscellaneous)—
• s 20 (Directions to escort officers)
• s 21 (Orders to bring offender or remandee before court
etc)
2 a law of a State relating to the escort of prisoners through the
ACT
Note 1 State includes the Northern Territory (see
Legislation Act, dict, pt 1).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Division
5.1.3 Transfers to health
facilities
108 Transfers
to health facilities
(1) The chief executive may direct that a young detainee be transferred to
a health facility at a detention place, or outside a detention place, if the
chief executive believes on reasonable grounds that it is necessary or prudent
for the young detainee to receive health services at the facility.
Note Health facility—see the
dictionary.
(2) The chief executive must have regard to the advice of a
treating doctor when considering whether to make a direction under
subsection (1).
(3) The chief executive may direct an escort officer to escort the young
detainee to or from the health facility, or while at the facility.
(4) The young detainee may be discharged from the health facility only
if—
(a) the health professional in charge of the young detainee’s care
approves the discharge; or
(b) the chief executive directs that the young detainee be removed from
the facility.
Example—direction for removal of young
detainee from health facility
where the young detainee is a danger to the safety of people at the
facility
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(5) The chief executive must have regard to the health of the young
detainee when considering whether to make a direction under
subsection (4).
(6) The chief executive may give a direction for ensuring that a young
detainee discharged from a health facility under subsection (4) is returned to a
detention place stated in the direction.
(7) A young detainee discharged from a health facility under
subsection (4) may be discharged into the custody of the chief
executive.
(8) For chapter 8 (Criminal matters—discipline at detention places),
this section is taken to provide an entitlement for each young detainee in
relation to health care.
Division
5.1.4 Transfers of young detainees who
become adults
109 Application—div
5.1.4
This division applies to a young detainee serving a sentence of
imprisonment or otherwise in custody at a detention place who is an
adult.
110 Transfers
to correctional centres—under 21 years old
(1) The chief executive may, on the chief executive’s own initiative
or on application, direct that a young detainee to whom this division applies be
transferred to a correctional centre.
(2) However, the chief executive must not give a direction under
subsection (1) unless satisfied that the transfer is in the best interests of
the young detainee or other young detainees.
(3) In deciding whether the transfer is in the best interests of the young
detainee or other young detainees, the chief executive must consider the
following:
(a) the young detainee’s views and wishes;
(b) the young detainee’s maturity and any known history;
(c) the young detainee’s developmental capacity;
(d) if the young detainee is serving a sentence—the time remaining
to be served by the young detainee;
(e) the behaviour of the young detainee, particularly if it presents a
risk to the safety of other young detainees or staff at the detention
place;
(f) whether the young detainee is likely to be vulnerable in a
correctional centre;
(g) the availability of services or programs appropriate for the young
detainee at the correctional centre;
(h) whether the young detainee is more likely to be rehabilitated in the
detention place or correctional centre.
(4) The chief executive may also consider any other relevant
matter.
(5) If the chief executive gives a direction under this section for a
young detainee, the chief executive may direct an escort officer to escort the
young detainee from the detention place to the correctional centre.
(6) The young detainee must be dealt with as a detainee under the
Corrections Management Act 2007 once the young detainee is taken to the
correctional centre.
111 Transfers
to correctional centres—21 year olds
(1) A young detainee who is 21 years old or older cannot be detained at a
detention place, but must be detained at a correctional centre.
(2) The chief executive must give the directions necessary to ensure that
a young detainee at a detention place who turns 21 years old is transferred to a
correctional centre.
Division
5.1.5 Notifying people of
transfers
112 Transfer—notifying
people responsible for or nominated by young detainees
(1) This section applies if a young detainee is transferred
under—
(a) division 5.1.3 (Transfers to health facilities); or
(b) division 5.1.4 (Transfers of young detainees who become
adults).
(2) If the young detainee is under 18 years old, the chief executive must
take reasonable steps to tell someone who has daily care responsibility, or
long-term care responsibility, for the young detainee about the
transfer.
(3) If the chief executive and someone else share daily care
responsibility, or long-term care responsibility, for the young detainee, the
chief executive must act under subsection (2) in relation to the other
person.
(4) If the young detainee is 18 years old or older, the chief executive
must take reasonable steps to tell the young detainee’s nominated person
about the transfer.
Part
5.2 Interstate
transfers
Division
5.2.1 Interstate transfer
generally
In this part:
Minister of a State means—
(a) for a State other than the Northern Territory—a Minister of the
Crown of the State; or
(b) for the Northern Territory—a person holding ministerial office
under the Northern Territory (Self-Government) Act 1978.
person responsible, for a young offender,
means—
(a) a parent of the young offender or someone else who has daily care
responsibility, or long-term care responsibility, for the young offender;
or
(b) a person who has the care of the young offender, whether or not the
person has parental responsibility (however described) for the young offender;
or
(c) for a young offender who is detained—a person who had the care
of the young offender before the young offender was detained, whether or not the
person has, or had, parental responsibility (however described) for the young
offender.
receiving State means the State to which a young offender is
transferred.
sending State means the State from which a young offender is
transferred.
transfer agreement—see section 114.
transfer arrangement—see section 115.
transfer escort means a person who is authorised under a
transfer agreement, transfer arrangement or transfer order to take and keep
custody of a young offender.
transfer order—see section 119.
young offender means a person who—
(a) has been convicted or found guilty of an offence by a court;
and
(b) was under 18 years old when the offence was committed; and
(c) has been sentenced for the offence.
114 General
agreements with other jurisdictions
(1) The Minister may enter into an agreement (a transfer
agreement) with a Minister of a State, or a person authorised to enter
into a transfer arrangement for the Minister, providing generally for the
transfer of young offenders—
(a) from or to the ACT; or
(b) through the ACT from a State to another State.
(2) A transfer agreement relating to a State must not be entered into
unless a declaration under subsection (3) has been notified under the
Legislation Act in relation to the State.
(3) The Minister may, in writing, declare that a State has enacted
legislation dealing with the interstate transfer of young offenders.
(4) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
115 Transfer
arrangements—general
(1) If a transfer agreement with a Minister of a State is in force, the
chief executive may make an arrangement (a transfer arrangement)
with the Minister, or a person authorised to enter into a transfer arrangement
for the Minister, for the transfer of a particular young
offender—
(a) from the ACT to the State; or
(b) to the ACT from the State.
(2) The chief executive may also make a transfer arrangement with the
Minister, or a person authorised to enter into a transfer arrangement for the
Minister, to fix a mistake in a transfer arrangement.
(3) The chief executive may only make a transfer arrangement for a
particular young offender from the ACT to a State in the circumstances mentioned
in section 116.
116 Power
to arrange for transfers
(1) The chief executive may make a transfer arrangement for the transfer
of a young offender from the ACT to a State—
(a) on application by the young offender or a person responsible for the
young offender; or
(b) if the chief executive has daily care responsibility, or long-term
care responsibility, for the young offender.
(2) However, the chief executive may only make a transfer arrangement for
the transfer of a young offender from the ACT to a State if—
(a) the chief executive believes on reasonable grounds that the transfer
is appropriate, having regard to all the circumstances,
including—
(i) the place or intended place of residence of the parents of the young
offender and other people (if any) who have daily care responsibility, or
long-term care responsibility, for the young offender, or the young
offender’s family members; and
(ii) the present and future education, training or employment of the young
offender; and
(iii) the medical needs of the young offender; and
(iv) the safety, health and wellbeing of the young offender; and
(b) either—
(i) the young offender agrees to the transfer; or
(ii) the chief executive decides that the particular circumstances of the
case indicate that the transfer should be arranged without the young
offender’s agreement; and
(c) the young offender has been given independent legal advice about the
effect of the transfer arrangement; and
(d) the chief executive is satisfied that there is no appeal pending
against an order of a Childrens Court to which the young offender is
subject.
(3) In deciding whether to arrange for the transfer of a young offender on
an application under subsection (1) (a), the chief executive may ask
the following people for relevant information:
(a) the young offender;
(b) a person responsible for the young offender.
(4) The chief executive may refuse to make a transfer arrangement if
information asked for is not supplied within the time stated by the chief
executive.
(5) The chief executive may make a transfer arrangement to transfer a
young offender from the ACT to a State other than under subsection (1)
if—
(a) the young offender is detained in a detention place; and
(b) the chief executive believes on reasonable grounds that the behaviour
of the young offender in the detention place puts at risk the safety, health or
wellbeing of other people detained in the detention place or of staff at the
detention place; and
(c) the young offender has been given independent legal advice about the
effect of the transfer arrangement; and
(d) the chief executive is satisfied that there is no appeal pending
against an order of the Childrens Court to which the young offender is
subject.
(6) This section does not apply to a transfer arrangement to fix a
mistake.
117 Transfer
arrangements—facilities must be adequate
A transfer arrangement for the transfer of a young offender from a State to
the ACT may be made only if the chief executive is satisfied that there are
adequate facilities in the ACT for the young offender to be accepted and dealt
with as provided in the transfer arrangement.
118 Transfer
arrangements—content
(1) A transfer arrangement for the transfer of a young offender from or to
the ACT must—
(a) be in writing; and
(b) provide for the acceptance of, and means of dealing with, the young
offender in the receiving State; and
(c) state each order of a court of the sending State to which the young
offender is subject (including an order required by a previous transfer
arrangement with the Territory or with a State to be treated as having been made
by a court of the sending State).
(2) For each order mentioned in subsection (1) (c), the transfer
arrangement must state—
(a) the way that the order must operate in the receiving State, which must
be as similar as possible to the way that it would operate in the sending State
if the transfer arrangement were not made; and
(b) the maximum time for which the order may operate, which must not be
longer than the maximum time for which it could operate in the sending State if
the transfer arrangement were not made; and
(c) any entitlement of the young offender to a reduction in detention in
the sending State and how that entitlement must operate in the receiving State,
which must be as similar as possible to the way that it would operate in the
sending State if the transfer arrangement were not made; and
(d) that a young offender who is subject to a nonprobation period may be
treated as being subject to an equivalent nonparole period, if the laws of the
receiving State do not provide for nonprobation periods.
(3) A reference in this section to an order of a court is a reference to a
sentence, detention, probation, parole or other order, that could be made or
imposed by the court.
119 Custody
of person on transfer order
(1) If the chief executive makes a transfer arrangement under this Act for
the transfer of a young offender from the ACT to a State in the custody of a
transfer escort, the chief executive must make a written order (a transfer
order) that—
(a) directs the person who has custody of the young offender to deliver
the young offender to the custody of the transfer escort; and
(b) authorises the transfer escort to take and keep custody of the young
offender for the purpose of transferring the young offender to the place in the
receiving State, and to the custody, mentioned in the transfer
arrangement.
(2) The authority given to a transfer escort by a transfer order is given
only to a transfer escort who is—
(a) a police officer; or
(b) a corrections officer; or
(c) a youth detention officer; or
(d) a person acting as a transfer escort with the approval of the chief
executive.
120 Custody
pending interstate transfer
If the chief executive makes a transfer arrangement under this Act for the
transfer of a young offender from the ACT to a State in the custody of a
transfer escort mentioned in section 119 (2), the young offender may
be detained in a detention place until the young offender is delivered to the
transfer escort.
121 Transfer
to ACT in custody of transfer escort
(1) This section applies if, under a transfer arrangement for the transfer
of a young offender to the ACT, a transfer escort authorised under the
arrangement brings the young offender into the ACT.
(2) While in the ACT, the transfer escort is authorised to take and keep
custody of the young offender to transfer the young offender to the place in the
ACT, and to the custody, stated in the transfer arrangement.
122 Powers
of transfer escorts
(1) A transfer escort escorting a young offender under a transfer order
may, to keep custody of the young offender under the order—
(a) give the young offender any direction that the transfer escort
believes on reasonable grounds is necessary and reasonable; and
(b) use force in accordance with division 6.6.4 (Use of force).
(2) A transfer escort escorting a young offender under a transfer order
may conduct a scanning search, frisk search or ordinary search of the young
offender if the transfer escort suspects on reasonable grounds that the young
offender may be carrying a prohibited thing.
(3) The following provisions apply, with any necessary changes and any
changes prescribed by regulation, in relation to a search under this
section:
(a) part 7.2 (Searches generally);
(b) part 7.3 (Scanning, frisk and ordinary searches);
(c) part 7.9 (Seizing property).
123 Offence—escapes
during transfer
A person commits an offence if—
(a) an order sentencing the person to imprisonment has been made;
and
(b) the person is in custody under a transfer arrangement made for the
person’s transfer from the ACT to a State; and
(c) the person escapes from that custody while the person is not in the
ACT or the receiving State.
Maximum penalty: imprisonment for 6 months.
Division
5.2.2 Transfer of sentence or
order
124 Transfer
from ACT of sentence or order
(1) This section applies if a young offender is transferred from the ACT
to a State under a transfer arrangement.
(2) From the time the young offender arrives in the State, a sentence
imposed on, or order made in relation to, the young offender in the ACT before
that time, ceases to have effect in the ACT except for—
(a) an appeal against or review of a conviction, judgment, sentence or
order made, imposed or fixed by a Territory court; and
(b) taking into account a period of detention served before that time by
the young offender or a reduction of the period of detention granted before that
time; and
(c) taking into account anything done before that time by the young
offender in carrying out the order; and
(d) allowing for a remittance of money to the Territory that is or has
been paid in discharge or partial discharge of the sentence or order.
125 Transfer
to ACT of sentence or order
(1) This section applies if a young offender is transferred to the ACT
from a State under a transfer arrangement.
(2) From the time the young offender arrives in the ACT—
(a) a sentence imposed on, or order made in relation to, the young
offender by a court of the sending State and stated in the transfer arrangement
must be considered as having been imposed or made by the Territory court stated
in the transfer arrangement; and
(b) a sentence or order considered by a previous transfer arrangement with
the Territory, or with a State, to have been imposed or made by a court of the
sending State, which is a sentence or order stated in the transfer arrangement
under which the young offender is transferred to the ACT, must be considered as
having been imposed or made by the Territory court stated in the transfer
arrangement; and
(c) a direction given or order made by a court of the sending State
concerning the time when anything must be done under an order made by a court of
that State is, as far as practicable, to be considered as having been given or
made by the Territory court stated in the transfer arrangement.
(3) A sentence, order or direction has effect in the ACT as stated in the
transfer arrangement and the laws of the Territory apply as if the Territory
court stated in the transfer arrangement—
(a) had, at the relevant time, power to impose the sentence and to make or
give the order or direction; and
(b) did in fact impose the sentence and make or give the order or
direction when it was imposed, made or given.
Division
5.2.3 Transit through
ACT
126 Chief
executive may receive young offenders
The chief executive may receive, at a detention place, young offenders
being transferred through the ACT from a State to another State under a transfer
agreement.
127 Lawful
custody for transit through ACT
(1) This section applies if a young offender is brought into the ACT by a
transfer escort authorised by a transfer agreement to have custody of the young
offender.
(2) While in the ACT, the transfer escort is authorised to take and keep
custody of the young offender for the transfer.
(3) The chief executive may, at the request of the transfer escort and on
receiving from the transfer escort written authority for the transfer of the
young offender as provided in the transfer agreement—
(a) receive and detain the young offender at a detention place under the
custody and for the time that the transfer escort requests, if reasonably
necessary for the transfer; and
(b) at the end of that time, deliver the young offender into the custody
of the transfer escort.
128 Escapees
may be apprehended without warrant
A young offender who escapes from the custody of a transfer escort while
being transferred through the ACT from a State to another State by a transfer
escort under a transfer agreement may be apprehended by a transfer escort or
police officer without a warrant.
129 Escapees
to be brought before magistrate
(1) This section applies if a young offender being transferred through the
ACT from a State to another State in the custody of a transfer
escort—
(a) escapes and is apprehended; or
(b) attempts to escape.
(2) The young offender may be taken before a magistrate and the magistrate
may, by warrant, order the young offender to be detained in custody at a
detention place.
(3) The warrant may be executed according to its terms.
130 Court
may arrange transfer of apprehended escapees
(1) A young offender who is apprehended under a warrant under
section 129 must, as soon as practicable, be brought
before—
(a) if the young offender is 18 years old or older—the Magistrates
Court; or
(b) in any other case—the Childrens Court.
(2) The Magistrates Court or Childrens Court may order that the young
offender —
(a) be delivered to the custody of a transfer escort; or
(b) be detained for not longer than 7 days until a transfer escort is
available from the sending State to carry out the transfer arrangement or an
order made by a court of the State.
(3) If a young offender who is the subject of an order made by a
magistrate is not, under the order, delivered into the custody of a transfer
escort before the end of 7 days after the day the order is made, the order
has no further effect.
(4) If an order ceases to have further effect under subsection (3), a
further order may be made under subsection (2).
(5) In this section:
transfer escort, for a young offender being transferred
through the ACT from a State to another State under a transfer agreement,
means—
(a) the transfer escort authorised by the transfer agreement to have
custody of the young offender; or
(b) if the young offender has escaped or attempted to escape—1 or
more of the following people:
(i) the transfer escort;
(ii) a police officer of the sending State;
(iii) a person appointed in writing by the Minister of the sending State,
or a person authorised to enter into a transfer arrangement for that Minister,
to be a transfer escort to carry out an order of a court of the sending
State.
131 Search
warrants for escapees
(1) A transfer escort or police officer may apply to a magistrate for a
search warrant if the transfer escort or police officer believes on reasonable
grounds that a young offender who has escaped from the custody of a transfer
escort while being transferred through the ACT from a State to another State
under a transfer agreement is at premises.
(2) The magistrate may, if satisfied that there are reasonable grounds for
doing so, issue a search warrant authorising the person named in the warrant
with the assistance, and with the force, that is necessary and reasonable
to—
(a) enter stated premises; and
(b) inspect the premises for evidence of the young offender who has
escaped from custody; and
(c) observe and converse with a person apparently living there;
and
(d) apprehend the young offender at the premises.
(3) A warrant issued under this section must state—
(a) why the warrant is issued, including the name and description of the
young offender for whom entry and search are authorised; and
(b) whether entry is authorised to be made at any time of the day or night
or during stated hours of the day or night; and
(c) a date, not being later than 14 days after the date of issue of the
warrant, on which the warrant ceases to have effect.
(4) A police officer may—
(a) accompany a transfer escort executing a search warrant issued under
this section; and
(b) take all reasonable steps to assist in the apprehension of the young
offender at the premises.
(5) In this section:
transfer escort means the transfer escort authorised by the
transfer agreement to have custody of the young offender.
Division
5.2.4 Revocation of transfer
orders
132 Revocation
of transfer order—offence during transfer
(1) The Childrens Court may, on application by the chief executive, revoke
a transfer order in relation to a young offender if the young offender has,
while being transferred, committed—
(a) the offence of escaping or attempting to escape; or
(b) another offence.
(2) This section applies whether or not—
(a) the offence was an offence against a law of—
(i) the Territory; or
(ii) the receiving State; or
(iii) a State through which the young offender was being transferred;
or
(b) an information has been laid for the offence; or
(c) a conviction has been recorded for the offence.
133 Revocation
of transfer order by chief executive
(1) The chief executive may revoke a transfer order in relation to a young
offender at any time before the young offender is delivered in the receiving
State into the custody stated in the transfer arrangement for the young
offender.
(2) If the chief executive revokes a transfer order, the chief executive
may make a further transfer arrangement with the receiving State for the return
of the young offender to the ACT.
134 Chief
executive may consider reports etc
(1) In forming an opinion or exercising a discretion under this part, the
chief executive may—
(a) be informed as the chief executive considers appropriate;
and
(b) consider reports from—
(i) a person responsible for a young offender in the ACT or a State;
or
(ii) a person who has had the custody, care or supervision of a young
offender in the ACT or a State.
(2) A report that relates to an ACT young offender may be sent to a
Minister of a State who has entered into a transfer agreement, or on whose
behalf a transfer agreement has been entered into, or to a person authorised
under a transfer agreement to make transfer arrangements with the chief
executive.
Chapter
6 Criminal matters—detention
places
Part
6.1 Detention
places—general
This chapter applies to young detainees.
Note Young detainee—see s 95.
In this chapter:
accredited person, in relation to a young detainee, means
each of the following:
(a) the chief executive if the chief executive is a person who has daily
care responsibility, or long-term care responsibility, for the young
detainee;
(b) a representative, approved by the chief executive, of an entity
providing a service or program to the young detainee at a detention
place;
(c) a lawyer representing the young detainee;
(d) an official visitor;
(e) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(f) the public advocate;
(g) the ombudsman;
(h) a person prescribed by regulation.
case management plan, for a young detainee, means the young
detainee’s case management plan maintained under section 187.
non-treating doctor means a doctor authorised under
section 98 (Health professionals—non-treating functions).
prohibited thing means a thing declared to be a prohibited
thing under section 147.
register of young detainees means the register kept under
section 184.
security classification, for a young detainee, means the
young detainee’s security classification under section 189.
visiting conditions, at a detention place, means conditions
declared under section 227 in relation to the place.
visitor, in relation to a detention place, includes a person
wishing to enter the place as a visitor.
young remandee means—
(a) a child or young person remanded in custody under the Crimes
(Sentence Administration) Act 2005; or
(b) a person who is at least 18 years old but under 21 years old and is
remanded in custody under the Crimes (Sentence Administration) Act
2005.
youth detention policy means a youth detention policy made by
the chief executive under section 142.
137 Treatment
of young detainees generally
Functions under the criminal matters chapters in relation to a young
detainee must be exercised as follows:
(a) to respect and protect the young detainee’s human
rights;
(b) to ensure the young detainee’s decent, humane and just
treatment;
(c) to preclude torture or cruel, inhuman or degrading
treatment;
(d) to ensure the young detainee is not subject to further punishment (in
addition to deprivation of liberty) only because of the conditions of detention;
(e) to ensure the young detainee’s conditions in detention comply
with section 140 (Detention places—minimum living conditions);
(f) to promote, as far as practicable, the young detainee’s
reintegration into society;
(g) for a young detainee who is a young offender—to promote, as far
as practicable, the young detainee’s rehabilitation.
138 Treatment
of young remandees
(1) Functions under the criminal matters chapters in relation to a young
remandee must also be exercised to recognise and respect that—
(a) the young remandee must be presumed innocent of any offence for which
the young remandee is remanded in custody; and
(b) the detention is not imposed as punishment of the young
remandee.
(2) Subsection (1) does not apply if the young remandee—
(a) has been convicted or found guilty of the offence for which the young
remandee is detained; or
(b) is under a sentence of imprisonment in relation to another
offence.
Example—par (2)
(a)
a convicted young person remanded in custody for sentencing
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
139 Treatment
of certain young detainees
(1) This section applies to a young detainee (other than a sentenced young
offender or young remandee) while the young detainee is required to be held in
custody or detention under a territory law or a law of the Commonwealth, a State
or another Territory.
(2) Functions under the criminal matters chapters in relation to the young
detainee must be exercised to recognise and respect the purpose for which the
young detainee is held in custody or detention.
(3) The criminal matters chapters apply in relation to the young detainee,
with any changes prescribed by regulation.
140 Detention
places—minimum living conditions
(1) To protect the human rights of young detainees in detention at
detention places, the chief executive must ensure, as far as practicable
(including during any emergency declared under section 148), that
conditions at detention places meet at least the following minimum
standards:
(a) young detainees must have access to sufficient nutritional food and
drink to avoid hunger and poor nourishment;
(b) young detainees must have access to sufficient suitable clothing that
does not degrade or humiliate young detainees;
(c) young detainees must have access to suitable facilities for personal
hygiene;
(d) young detainees must have suitable accommodation and bedding for
sleeping in reasonable privacy and comfort;
(e) young detainees must have reasonable access to the open air and
exercise;
(f) young detainees must have reasonable access to telephone, mail and
other facilities for communicating with people in the community;
(g) young detainees must have reasonable opportunities to receive visits
from family members, significant people and accredited people;
Note 1 Accredited
person—see s 136.
Note 2 One family member or a
significant person may visit for at least 1 hour each week (see
s 176).
Note 3 For further provisions about
access, see div 6.6.5.
(h) young detainees must have reasonable opportunities to communicate with
their lawyers;
(i) young detainees must have reasonable access to news and education
services and facilities to maintain contact with society;
(j) young detainees must have access to suitable health services and
health facilities;
(k) young detainees must have reasonable opportunities for religious,
spiritual and cultural observances.
Example—par (k)
observances and practices relating to religious or spiritual beliefs,
including Aboriginal and Torres Strait Islander spiritual beliefs
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(2) Part 6.5 applies to living conditions at detention
places.
Division
6.2.1 Administration—general
141 Detention
places—declaration
(1) The Minister may declare a place to be a detention place.
(2) A declaration is a notifiable instrument.
Example—declaration
the declaration of a place, including a buffer zone surrounding a secure
perimeter, to be a detention place
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 The power to make an instrument includes power to make
different provisions in relation to different matters or different classes of
matters, and provisions that apply differently by reference to stated exceptions
or factors (see Legislation Act, s 48.)
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) For the Smoking (Prohibition in Enclosed Public Places) Act
2003, a detention place is a public place.
142 Youth
detention policies and operating procedures
(1) The chief executive may make youth detention policies and operating
procedures, consistent with this Act, to facilitate the effective and efficient
management of detention services for young detainees.
(2) Each youth detention policy or operating procedure is a notifiable
instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 The amendment or repeal of a youth detention policy or
operating procedure is also a notifiable instrument. See the Legislation Act, s
46 (Power to make instrument includes power to amend or repeal).
(3) Each youth detention policy and operating procedure—
(a) must be available for inspection by anyone at each detention place;
and
(b) may be made available for inspection at any other place decided by the
chief executive.
143 Exclusion
of matters from notified youth detention policies etc
(1) The chief executive may exclude from a youth detention policy or
operating procedure notified or available for inspection in accordance with
section 142 any matter that the chief executive believes on reasonable grounds
would be likely to disclose—
(a) information that may endanger public safety or security or good order
at a detention place; or
(b) anything prescribed by regulation.
(2) If subsection (1) applies to a youth detention policy or operating
procedure—
(a) the policy or procedure must contain a statement about the effect of
this section; and
(b) the excluded matter must be available for inspection, on request, by
any of the following:
(i) a judge;
(ii) a magistrate;
(iii) a member of the Legislative Assembly;
(iv) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(v) the public advocate;
(vi) the ombudsman;
(vii) an official visitor;
(viii) anyone to whom this section applies because of a declaration under
subsection (3).
(3) The Minister may declare that this section applies to a stated
person.
(4) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
144 Copies
of Act, policies etc to be available for inspection at detention
place
The chief executive must ensure copies of the following are available for
inspection by young detainees at each detention place:
(a) this Act;
(b) youth detention policies and operating procedures available under
section 142.
145 Chief
executive directions
(1) The chief executive may give reasonable directions in relation to a
young detainee about anything related to the criminal matters
chapters.
(2) Without limiting subsection (1), the chief executive may give a
direction that the chief executive considers necessary and reasonable in
relation to any of the following:
(a) the wellbeing or safety of the young detainee or anyone
else;
(b) security or good order at a detention place;
(c) ensuring compliance with any requirement under this Act or another
territory law.
(3) A direction may be given orally or in writing, and may apply to a
particular young detainee or 2 or more young detainees.
(4) A direction by the chief executive under this Act, or anything done
under the direction, is not invalid because of a defect or irregularity in or in
relation to the direction.
(1) The chief executive may, in writing, declare an area of a detention
place to be a prohibited area if the chief executive believes on reasonable
grounds that the declaration is necessary or prudent to ensure 1 or more of the
following:
(a) the safety of anyone at the detention place;
(b) security or good order at a detention place;
(c) that the best interests of detainees are protected.
Note The power to make an instrument includes power to make
different provisions in relation to different matters or different classes of
matters, and provisions that apply differently by reference to stated exceptions
or factors (see Legislation Act, s 48.)
(2) As soon as practicable after the chief executive declares an area of a
detention place to be a prohibited area, the chief executive must ensure that
each detainee to whom the prohibition applies is told about the prohibited
area.
(1) The chief executive may declare a thing to be a prohibited thing if
the chief executive believes on reasonable grounds that the declaration is
necessary or prudent to ensure security or good order at a detention
place.
Examples—prohibited
things
1 a weapon or something crafted as a weapon
2 alcohol
3 a controlled drug under the Criminal Code
4 a mobile phone
Note 1 The power to make an instrument includes power to make
different provisions in relation to different matters or different classes of
matters, and provisions that apply differently by reference to stated exceptions
or factors (see Legislation Act, s 48.)
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
148 Declaration
of emergency
(1) This section applies if the chief executive believes on reasonable
grounds that an emergency (including an imminent emergency) exists in relation
to a detention place that threatens or is likely to threaten—
(a) good order or security at the place; or
(b) the safety of anyone at the place or elsewhere.
(2) The chief executive may declare that an emergency exists in relation
to the detention place for a stated period of not more than—
(a) 3 days; or
(b) if another period is prescribed by regulation—the period
prescribed.
(3) To remove any doubt, the chief executive may make declarations for
2 or more consecutive periods under this section in relation to the same
emergency.
(4) A declaration commences—
(a) when it is made; or
(b) if it provides for a later commencement—on that later
commencement.
(5) The first declaration in relation to an emergency is a notifiable
instrument.
(6) A declaration for a second or subsequent consecutive period in
relation to the same emergency is a disallowable instrument.
(7) An instrument under subsection (5) or (6) must be notified under the
Legislation Act not later than the day after the day it is made.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) While an emergency is declared under section 148 in relation to a
detention place, the chief executive may do 1 or more of the
following:
(a) restrict any activity at the place;
(b) restrict access in, or to or from, the place or any part of the place;
(c) restrict communications between a young detainee and anyone
else;
(d) authorise a police officer or public servant to exercise any function
exercisable by a youth detention officer under the criminal matters chapters in
accordance with any direction by the chief executive.
(2) The chief executive must ensure that action taken under this section
is necessary and reasonable in the circumstances.
Note Section 140 (Detention places—minimum living conditions)
continues to apply during an emergency (see s 140 (1)).
150 Arrangements
with police
(1) The chief executive may make arrangements with the chief police
officer for police assistance in relation to the administration of the criminal
matters chapters.
(2) Subject to any arrangement under this section, the chief police
officer must comply, as far as practicable, with any request by the chief
executive for police assistance mentioned in subsection (1).
(3) A police officer providing assistance under this section may exercise
any function exercisable by a youth detention officer under the criminal matters
chapters in accordance with any direction by the chief executive.
151 Assistance
from other chief executives
(1) The chief executive may ask another chief executive for assistance in
relation to the exercise of functions under the criminal matters
chapters.
Examples—functions for which chief
executive may ask for assistance
1 development of a case management plan for a young detainee under s
187
2 provision of an assessment or advice in relation to a health, education
or other matter
3 arrangements for search dogs
4 escorting a young detainee to and from court or leave
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive must comply with the request as far as
practicable.
Part
6.3 Inspection at detention
places
152 Inspections
by judicial officers, Assembly members etc
(1) This section applies to each of the following:
(a) a judge;
(b) a magistrate;
(c) a member of the Legislative Assembly;
(d) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(e) the public advocate;
(f) the ombudsman.
Note Official visitors must inspect detention places (see s
39).
(2) A person mentioned in subsection (1) may, at any reasonable time,
enter and inspect—
(a) a detention place; or
(b) a place outside a detention place where a detainee is, or has been,
directed to work or participate in an activity.
Example—time that would not be
reasonable
a time when an emergency declaration is in force
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
153 Relationship
with other inspection laws
(1) The criminal matters chapters must be construed and administered in a
way that is consistent with an inspection law unless the contrary intention
appears from this Act or that law.
(2) The criminal matters chapters are taken to be consistent with an
inspection law to the extent that they are capable of operating concurrently
with that law.
(3) The chief executive may make arrangements with a person responsible
for the exercise of functions under an inspection law to ensure, as far as
practicable, the safety of an inspector (however described) or anyone else
affected by the exercise of the function in relation to a young detainee or
detention place.
(4) A person exercising a function under an inspection law in relation to
a young detainee or detention place must exercise the function in accordance
with any reasonable direction by the chief executive in relation
to—
(a) the safety of anyone at the detention place; or
(b) security or good order at the detention place.
(5) In this section:
inspection law means an Act that provides for the entry and
inspection of premises, or the search of people or premises.
Examples—inspection
laws
• Crimes Act 1900
• Emergencies Act 2004
• Food Act 2001
• Public Health Act 1997
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
6.4 Admission to detention
places
154 Meaning
of admission—pt 6.4
In this part:
admission, of a young detainee to a detention place, means
admission of the young detainee to the place for detention.
155 Authority
for detention
(1) A young detainee must not be admitted to, or detained at, a detention
place unless the detention is authorised by a warrant or other authority
(however described), under a territory law or a law of the Commonwealth or a
State.
Examples—other authority authorising
detention
1 a young detainee refused bail by an authorised person under the Bail
Act 1992
2 a young detainee in immigration detention under the Migration
Act 1958 (Cwlth)
3 an interstate young detainee on leave in the ACT held in custody
overnight
Note 1 State includes the Northern Territory (see Legislation
Act, dict, pt 1).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) Before a young detainee is admitted to a detention place, the chief
executive must be given the warrant or other authority for the
detention.
(3) The validity of a young detainee’s detention at a detention
place is not affected by a defect or irregularity in or in relation to the
warrant or the evidence of other authority for the detention.
156 Detention—notifying
people responsible for or nominated by young detainees
(1) If a young detainee who is under 18 years old is detained at a
detention place, the chief executive must take reasonable steps to tell someone
who has daily care responsibility, or long-term care responsibility, for the
young detainee about—
(a) the young detainee’s admission to a detention place;
and
(b) if the young detainee is required to appear before a court or
tribunal—the time and place of each appearance.
(2) If the chief executive and someone else share daily care
responsibility, or long-term care responsibility, for the young detainee, the
chief executive must act under subsection (1) in relation to the other
person.
(3) If a young detainee who is 18 years old or older is detained at a
detention place, the chief executive must take reasonable steps to tell the
young detainee’s nominated person about the matters mentioned in
subsection (1) (a) and (b).
157 Identification
of young detainees
(1) For the identification of a young detainee admitted to a detention
place, the chief executive may direct that all or any of the following be taken
of or from the young detainee:
(a) prints of the young detainee’s hands or fingers;
(b) a photograph or video recording;
(c) a buccal swab or saliva sample;
(d) anything else prescribed by regulation.
(2) Anything taken from a young detainee under subsection (1) must be
destroyed if—
(a) the young detainee is found not guilty of any offence to which the
detention relates, other than on the ground of unsoundness of mind; or
(b) a proceeding for any offence to which the detention relates is
discontinued or dismissed.
(3) However, subsection (2) does not apply if, for any part of the period
of detention for an offence, the young detainee was also being detained for
another offence—
(a) of which the young detainee has been convicted; or
(b) for which a proceeding (including any appeal proceeding) is still
pending.
Note The Crimes (Forensic Procedures) Act 2000 includes
provision for carrying out forensic procedures on people in custody. See
particularly pt 2.7 (Carrying out of certain forensic procedures after
conviction of serious offenders).
158 Information—entitlements
and obligations
(1) As soon as practicable after a young detainee is admitted to a
detention place, the chief executive must take reasonable steps to explain the
following to the young detainee:
(a) the young detainee’s entitlements and obligations under this
Act;
(b) the case management plan arrangements;
(c) the role of official visitors;
(d) the procedures for seeking information and making complaints to
official visitors;
(e) which areas of the detention place are prohibited areas;
Note Prohibited areas are declared under
s 146.
(f) if the young detainee is a national of a foreign country—that
the young detainee may ask the chief executive to tell a diplomatic or consular
representative of the country about the detention;
(g) anything else the chief executive considers necessary or
desirable.
Examples—par (g)
1 youth detention policies and operating procedures relevant to the young
detainee
2 the scope and effect of the chief executive’s directions
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(2) The explanation under subsection (1)—
(a) may be in general terms; and
(b) as far as practicable, must be in language the young detainee can
readily understand.
(3) The chief executive must arrange for the assistance of an interpreter
in complying with subsection (1) or (2) if the chief executive believes on
reasonable grounds that the young detainee is unable, because of inadequate
knowledge of the English language or a disability, to communicate with
reasonable fluency in English.
(4) Without limiting subsection (3), the assistance of the interpreter may
be provided by telephone.
(5) The chief executive must tell a diplomatic or consular representative
of a foreign country about the detention of a national of that country, if asked
by the young detainee or if the chief executive, after making reasonable
inquiries, considers it in the best interests of the young detainee to do
so.
(1) The chief executive must ensure that—
(a) each young detainee admitted to a detention place is assessed as soon
as practicable, and in any event within 24 hours after admission, to identify
any immediate—
(i) physical or mental health needs or risks (including any risk of
self-harm); and
(ii) safety or security needs or risks; and
(b) any needs and risks identified by the assessment are
addressed.
Note For an initial assessment, the chief executive may direct a
youth detention officer to strip search a young detainee (see s 253).
(2) In particular, the chief executive must ensure that any ongoing needs
and risks are addressed in the young detainee’s case management plan (if
any).
(1) The assessment under section 159 of a young detainee’s physical
health needs and risks must be made by a treating doctor or a nurse.
(2) The assessment under section 159 of a young detainee’s mental
health needs and risks may be made by a treating doctor, a nurse or another
suitable health professional.
Note The Mental Health (Treatment and Care) Act 1994 also
includes provision for assessment orders, and emergency detention and care,
under that Act.
(3) An assessment under section 159 made by a health professional other
than a treating doctor must be reviewed by a treating doctor.
(4) A treating doctor who makes an assessment or reviews an assessment
made under section 159 must give a report of the assessment to the chief
executive.
161 Alcohol
and drug tests on admission
(1) For an assessment under section 159, the chief executive may direct
the young detainee, orally or in writing, to provide a test sample.
(2) Division 6.7.2 (Alcohol and drug testing—detainees) applies in
relation to the direction and any sample given under the direction.
162 Security
classification
The chief executive must arrange for a young detainee to be given a
security classification under section 189 (Security classification—basis
etc) as soon as practicable after the young detainee’s admission to a
detention place.
(1) The chief executive must arrange for a case management plan to be
prepared for a young detainee (other than a young remandee) as soon as
practicable after the young detainee’s admission to a detention
place.
(2) The chief executive may prepare a case management plan for a young
detainee at a detention place who is a young remandee.
Note The scope of case management plans, and the criteria for
deciding whether to maintain one for a young remandee, are set out in s
187.
164 Entries
in register of young detainees
The chief executive must ensure that details of each young detainee
admitted to a detention place are entered in the register of young detainees on
the young detainee’s admission to the detention place.
Note The chief executive must keep a register of young detainees at
a detention place (see s 184).
165 Requirements
and considerations about placement and separation of young
detainees
(1) A youth detention policy or operating procedure may make provision,
consistent with this section, in relation to the placement and separation of
young detainees, including separation for—
(a) use of facilities; and
(b) participation in education or other activities.
(2) In placing a young detainee, the chief executive must ensure
that—
(a) young remandees are segregated from other young detainees;
and
(b) male young detainees are segregated from female young detainees;
and
(c) a young detainee who is under 18 years old is not placed with an
adult.
(3) Subsection (2) does not apply if the chief executive believes on
reasonable grounds that another placement will be in the best interests of all
affected detainees.
(4) When deciding where to place a young detainee, the chief executive
must consider the following:
(a) the needs and special requirements of the young detainee because of
the young detainee’s age, sex, emotional or psychological state, physical
health, cultural background, vulnerability or any other relevant
matter;
(b) if it is proposed that a young detainee be isolated in detention,
whether the isolation is in the best interests of the young detainee;
(c) the desirability of the care provided to a young detainee being suited
to the particular needs of the young detainee in order to protect the young
detainee’s physical and emotional wellbeing;
(d) that it is in the best interests of young detainees to be separated
from co-offenders.
(5) When deciding where to place a young detainee, the chief executive may
also consider any security classification given to the young detainee under
section 162.
Part
6.5 Living conditions at detention
places
Note to pt 6.5
Anything expressed in this part to be an entitlement for ch 8
(Criminal matters—discipline at detention places) is not affected by
anything that happens under that chapter.
(1) The chief executive must ensure that—
(a) sufficient nutritional food and drink are provided for young detainees
to avoid hunger and poor nourishment; and
(b) meals are provided for young detainees at times consistent with the
cultural norms of Australia; and
(c) clean drinking water is provided to meet the needs of young
detainees.
(2) The chief executive must also ensure, as far as practicable, that
allowance is made for the religious, spiritual and cultural needs of young
detainees in relation to the provision of food and drink.
(3) If a doctor (other than a non-treating doctor) prescribes a particular
diet for a young detainee, the chief executive must ensure that reasonable steps
are taken to provide the young detainee with that diet.
(4) A youth detention policy or operating procedure may include provision
for any of the following:
(a) the nutritional standards to be met by food and drink for young
detainees;
(b) the provision of nutritional advice about food and drink provided to
young detainees;
(c) the appointment of a nutritionist.
(5) For chapter 8, a young detainee’s entitlement in relation to
food and drink includes anything expressed to be an entitlement in a youth
detention policy or operating procedure made for subsection (4).
(1) The chief executive must ensure that—
(a) sufficient suitable clothing is provided for young detainees;
and
(b) any particular clothing, including a uniform, issued to young
detainees is not likely to degrade or humiliate young detainees.
(2) The chief executive must also ensure, as far as practicable, that
clothing provided for young detainees is clean and hygienic.
(3) For chapter 8, this section is taken to provide an entitlement for
each young detainee in relation to clothing.
(1) The chief executive must ensure that—
(a) toilet facilities and washing or showering facilities are available to
young detainees; and
(b) the facilities are clean, hygienic and private enough to ensure the
dignity and self-respect of young detainees.
(2) For chapter 8, this section is taken to provide an entitlement for
each young detainee in relation to personal hygiene.
(1) The chief executive must ensure that—
(a) young detainees have sleeping places, with beds and bedding, suitable
to provide reasonable privacy and comfort; and
(b) sleeping places, including beds and bedding, are clean and
hygienic.
(2) For chapter 8, this section is taken to provide an entitlement for
each young detainee in relation to sleeping areas.
170 Treatment
of convicted and non-convicted young detainees
(1) Without limiting section 142 (Youth detention policies and operating
procedures), the chief executive must make a youth detention policy or operating
procedure providing for different treatment of convicted young detainees and
non-convicted young detainees.
Example
a youth detention policy or operating procedure, in accordance with the
United Nations Rules for the Protection of Juveniles Deprived of Liberty,
for non-convicted young detainees to:
• be provided, if possible, with opportunities to pursue work with
remuneration and to continue education and training (r 18)
• receive and retain materials for their leisure and recreation that
are compatible with the interests of the administration of justice (r
18)
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) For chapter 8, a young detainee’s entitlement in relation to
treatment in detention includes anything expressed to be an entitlement in a
youth detention policy or operating procedure made for
subsection (1).
(3) In this section:
convicted young detainee means a young detainee whose
detention is because of the young detainee’s conviction for an offence.
171 Access
to open air and exercise
(1) The chief executive must ensure, as far as practicable, that young
detainees—
(a) have access to the open air for at least 2 hours each day;
and
(b) can exercise for at least 2 hours each day.
(2) The standards under subsection (1) may both be satisfied during the
same 2 hours on any day.
(3) For chapter 8, this section is taken to provide an entitlement for
each young detainee in relation to access to the open air and
exercise.
172 Communication
with family and others
(1) The chief executive must ensure, as far as practicable, that adequate
opportunities are provided for young detainees to be able to remain in contact
with family members, friends, associates and others by telephone calls, mail and
visits.
(2) For subsection (1), the chief executive must have regard, in addition
to any other relevant matter, to whether the young detainee’s detention is
for a reason other than conviction for an offence.
(3) The chief executive must also ensure that the overall treatment of a
young detainee, including any segregation or disciplinary action, does not
unreasonably deprive the young detainee generally of all communication with
other people.
(4) In particular, the chief executive must ensure that the overall
treatment of a young detainee does not deprive the young detainee generally of
all communication with any of the following:
(a) the courts;
(b) accredited people;
(c) a doctor of the young detainee’s choice for health
services;
(d) family members;
(e) other people with whom the young detainee may communicate under the
criminal matters chapters.
(5) For chapter 8, subsections (1) to (4) are taken to provide an
entitlement for each young detainee in relation to communication generally with
other people.
(6) However, this section is subject to the following:
(a) section 173 (Telephone calls);
(b) section 174 (Mail);
(c) section 176 (Visits by family members etc);
(d) section 177 (Contact with accredited people).
(1) The chief executive must ensure that each detention place has
telephone facilities for young detainees to make and receive telephone
calls.
(2) A young detainee may make—
(a) 1 telephone call on admission to a detention place; and
(b) 2 telephone calls each week to a family member or a significant
person.
(3) A young detainee may also make and receive further telephone calls for
necessary contact with a family member, significant person, friend or
associate.
(4) The chief executive must pay for telephone calls made by a young
detainee unless the chief executive believes on reasonable grounds that it is
appropriate for the young detainee to pay for the calls.
(5) For chapter 8, subsections (2) and (3) are taken to provide
entitlements for each young detainee in relation to telephone calls.
(6) However, the chief executive may give directions denying or limiting
the use of a telephone by a young detainee for a call mentioned in subsection
(2) or (3) if the chief executive suspects on reasonable grounds
that—
(a) the call may—
(i) undermine security or good order at a detention place; or
(ii) revictimise a victim; or
(iii) circumvent any process for investigating complaints or reviewing
decisions under this Act; or
(iv) have the purpose of causing community distress; or
(v) cause harm to the young detainee; or
(b) the direction is necessary and reasonable to safeguard the best
interests of the young detainee.
(7) Also, subsections (2) and (3) are subject to—
(a) section 199 (Monitoring telephone calls etc); and
(b) any operating procedure mentioned in subsection (8).
(8) An operating procedure may include provision regulating the following
in relation to young detainees’ telephone calls:
(a) the times for making or receiving calls;
(b) the frequency and length of calls;
(c) payment for the cost of calls made.
(1) The chief executive must ensure, as far as practicable, that young
detainees can send and receive as much mail as they wish.
(2) A young detainee may send mail to, and receive mail from any family
member, significant person or other person nominated by the young detainee by
written notice given to the chief executive.
(3) For chapter 8, subsection (2) is taken to provide entitlements for
each young detainee in relation to mail.
(4) However, the chief executive may give directions denying or limiting
the sending or receiving of mail by a young detainee if the chief executive
suspects on reasonable grounds that—
(a) the mail may—
(i) undermine security or good order at a detention place; or
(ii) revictimise a victim; or
(iii) circumvent any process for investigating complaints or reviewing
decisions under this Act; or
(iv) have the purpose of causing community distress; or
(v) cause harm to the young detainee; or
(b) the direction is necessary and reasonable to safeguard the best
interests of the young detainee.
(5) Also, subsections (1) and (2) are subject to—
(a) section 200 (Monitoring ordinary mail); and
(b) section 201 (Monitoring protected mail); and
(c) any operating procedure mentioned in subsection (6).
(6) An operating procedure may include provision regulating the following
in relation to young detainees’ mail:
(a) the way mail is sent or received;
(b) the provision of writing and other material for sending
mail;
(c) the storage, and return to the detainee, of mail for which a direction
is given under subsection (4).
(1) The chief executive must ensure, as far as practicable, that young
detainees have reasonable access to—
(a) newspapers, radio and television broadcasts and other mass media
(including the internet) for news and information; and
(b) a library or library service; and
(c) education or training designed to meet the young detainee’s
individual needs.
(2) The chief executive must, as part of a young detainee’s case
management plan, approve a young detainee participating in academic, vocational
or cultural education or training if satisfied it would benefit the young
detainee in any of the following ways:
(a) by providing the young detainee with suitable vocational
skills;
(b) by promoting the young detainee’s rehabilitation or
reintegration into society;
(c) by contributing satisfactorily to the young detainee’s personal
development.
(3) For chapter 8, participation in education or training approved under
subsection (2) is taken to be an entitlement for the young detainee in relation
to news and education.
176 Visits
by family members etc
(1) The chief executive must ensure that each detention place has suitable
facilities for young detainees to receive visits from family members and
significant people.
(2) One family member or significant person may visit a young detainee for
at least 1 hour each week.
Note A young detainee has a right to reasonable opportunities to
receive visits from family members and significant people (see s 140 (1)
(g)).
(3) For chapter 8, subsection (2) is taken to provide an entitlement for
each young detainee in relation to visits by family members.
(4) However, the chief executive may give directions denying or limiting a
visit mentioned in subsection (2) if the chief executive suspects on reasonable
grounds that—
(a) the visit may—
(i) undermine security or good order at a detention place; or
(ii) revictimise a victim; or
(iii) circumvent any process for investigating complaints or reviewing
decisions under this Act; or
(iv) have the purpose of causing community distress; or
(v) cause harm to the young detainee; or
(b) the direction is necessary and reasonable to safeguard the best
interests of the young detainee.
(5) Also, this section is subject to division 6.6.5 (Access to detention
places).
177 Contact
with accredited people
(1) The chief executive must ensure that a young detainee has adequate
opportunities for contact with an accredited person, whether by telephone or
mail or by a visit by an accredited person.
Note Accredited person—see s 136.
(2) For chapter 8, subsection (1) is taken to provide an entitlement for
each young detainee in relation to contact with an accredited person.
(3) However, the chief executive may give directions denying or limiting a
young detainee’s contact with an accredited person if the chief executive
suspects on reasonable grounds that the contact may—
(a) undermine security or good order at a detention place; or
(b) circumvent any process for investigating complaints or reviewing
decisions under this Act.
(4) Also, this section is subject to division 6.6.5 (Access to detention
places).
178 Visits—protected
communications
The chief executive must not listen to, or record, a communication at a
visit between a young detainee and any of the following people:
(a) a lawyer representing the young detainee;
(b) an official visitor;
(c) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(d) the public advocate;
(e) the ombudsman;
(f) a person prescribed by regulation.
Note 1 Electronic communications between a young detainee and a
person mentioned in this section must not be monitored, see s 199.
Note 2 For restrictions on monitoring mail between a young detainee
and a person mentioned in this section, see s 201.
(1) The chief executive must ensure that—
(a) young detainees have a standard of health care equivalent to that
available to other people in the ACT; and
(b) arrangements are made to ensure the provision of appropriate health
services for young detainees; and
(c) conditions in detention promote the health and wellbeing of young
detainees; and
(d) as far as practicable, young detainees are not exposed to risks of
infection.
Note The chief executive may direct that a young detainee be
transferred to a health facility (see s 108).
(2) In particular, the chief executive must ensure that young detainees
have access to—
(a) regular health checks; and
(b) timely treatment where necessary, particularly in urgent
circumstances; and
(c) hospital care where necessary; and
(d) as far as practicable—
(i) specialist health services from health professionals; and
(ii) necessary health care programs, including rehabilitation
programs.
Note The chief executive may also ask for a health report about a
young detainee (see s 185).
(3) For chapter 8, subsections (1) and (2) are taken to provide an
entitlement for each young detainee in relation to health care.
(4) A regulation may make provision in relation to health services for
young detainees, including provision about the following:
(a) the provision of health service clinics for young detainees;
(b) appointments for young detainees with health professionals;
(c) rehabilitation for young detainees who suffer personal injury arising
out of or in the course of their detention;
(d) security arrangements for young detainees visiting health
professionals or health facilities, particularly outside detention
places.
(5) For chapter 8, a young detainee’s entitlement in relation to
health care includes anything expressed to be an entitlement in a regulation
made for subsection (4).
180 Chief
executive’s consent to medical treatment for young
detainees
(1) This section applies if—
(a) a young detainee is a child or young person; and
(b) the young detainee needs medical treatment that requires the consent
of a person who has daily care responsibility for the young detainee;
and
(c) the chief executive does not have daily care responsibility for the
young detainee; and
(d) despite reasonable inquiries, the chief executive is unable to locate
a person who has daily care responsibility for the young detainee.
(2) The chief executive may consent to medical treatment for the young
detainee if delaying the treatment until a person who has daily care
responsibility for the young detainee can be located would be detrimental to the
young detainee’s health.
(3) To remove any doubt, this section does not affect any right of a child
or young person to consent to their own health care treatment.
181 Injury
etc—notifying people responsible for or nominated by young
detainees
(1) This section applies if a young detainee has a condition that
requires—
(a) clinical care for not less than 24 hours; or
(b) the young detainee’s transfer under section 108 (Transfers to
health facilities); or
(c) anything else prescribed by regulation.
(2) If the young detainee is under 18 years old, the chief executive must
take reasonable steps to tell a person who has daily care responsibility or
long-term care responsibility for a young detainee about the
condition.
(3) If the chief executive and another person share daily care
responsibility or long-term care responsibility for the young detainee, the
chief executive must act under subsection (2) in relation to the other
person.
(4) If the young detainee is 18 years old or older, the chief executive
must take reasonable steps to tell the young detainee’s nominated person
about the condition.
182 Religious,
spiritual and cultural needs
(1) The chief executive must ensure, as far as practicable, that provision
is made at detention places for the religious, spiritual and cultural needs of
young detainees.
Examples—religious, spiritual or
cultural needs
1 observances and practices relating to religious or spiritual beliefs,
including Aboriginal or Torres Strait Islander spiritual beliefs
2 observances or practices arising because a person belongs to a particular
culture
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) In particular, the chief executive must ensure, as far as practicable,
that young detainees have reasonable access to—
(a) ministers of religion and other people with standing in a particular
culture whom young detainees wish to see for religious, spiritual or cultural
purposes; and
(b) religious services at the detention place; and
(c) books and other articles associated with their religious, spiritual or
cultural practices.
(3) However, the chief executive may give directions denying or limiting a
young detainee’s access under subsection (1) or (2) if the chief executive
suspects on reasonable grounds that it may—
(a) undermine security or good order at a detention place; or
(b) revictimise a victim; or
(c) circumvent any process for investigating complaints or reviewing
decisions under this Act; or
(d) have the purpose of causing community distress.
(4) A young detainee must not be required to receive a visit from anyone
representing a particular religion, spiritual belief or culture, or attend any
related service or practice, if the young detainee does not wish to do
so.
(5) For chapter 8, subsections (1) and (2) are taken to provide an
entitlement for each young detainee in relation to religious, spiritual and
cultural needs.
(6) In this section:
minister of religion means—
(a) a person registered under the Marriage Act 1961 (Cwlth),
part 4.1 (Authorised celebrants); or
(b) a person prescribed by regulation.
Part
6.6 Management and
security
Division
6.6.1 Management and
security—general
183 Compliance
with chief executive’s directions
A young detainee must comply with any direction given under the criminal
matters chapters to the young detainee by the chief executive.
184 Register
of young detainees
(1) The chief executive must keep a register containing details of each
young detainee at a detention place.
(2) The register must include the following details in relation to each
young detainee:
(a) the young detainee’s full name, including any assumed
name;
(b) the young detainee’s age and date of birth;
(c) the young detainee’s sex;
Note For transgender and intersex young
detainees, see s 188.
(d) the authority for the detention of the young detainee;
(e) the period of authorised detention;
(f) for a young detainee under a sentence of imprisonment—details of
the sentence, including any combination sentence;
(g) the current place of detention;
(h) the security classification for the young detainee;
(i) the case management plan (if any) for the young detainee;
(j) details of any known condition of the young detainee that requires, or
is likely to require, a health service;
(k) details of anything taken from the young detainee under section 157
(Identification of young detainees);
(l) details of property the young detainee has at the detention
place;
(m) for a young detainee who is under 18 years old—details of people
who have daily care responsibility, or long-term care responsibility, for the
young detainee and details of notifications under this Act of those
people;
(n) for a young detainee who is 18 years old or older—details of a
person nominated by the young detainee (the nominated person) to
whom the chief executive can give any notifications required
under—
(i) section 112 (Transfer—notifying people responsible for or
nominated by young detainees); or
(ii) section 156 (Detention—notifying people responsible for or
nominated by young detainees); or
(iii) section 181 (Injury etc—notifying people responsible for or
nominated by young detainees); or
(iv) section 206 (2) (c) (Notice of segregation
directions—safe room and other); or
(v) section 220 (2) (c) (Notice of decision about segregation
direction); or
(vi) section 236 (5) (c) (Alcohol and drug testing of young detainees);
or
(vii) section 250 (Notice of strip and body searches—person
responsible for or nominated by young detainee);
(o) for a young detainee who is 18 years old or older—details of any
notifications given to the young detainee’s nominated person;
(p) anything else the chief executive considers necessary or appropriate
for the proper management of the young detainee.
Examples—other things chief executive
may consider necessary or appropriate
1 young detainee’s nutritional or health needs
2 young detainee’s need for spectacles, contact lens, crutches,
prosthesis or other artificial aids
3 young detainee’s language or literacy difficulties
4 any cultural background or religious affiliation identified by the young
detainee
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(1) For the criminal matters chapters, the chief executive may ask a
relevant chief executive for a written report about a young detainee’s
health.
(2) The relevant chief executive must comply with the request as soon as
practicable.
(3) The relevant chief executive’s report must include personal
health information about the young detainee that is in a health
record—
(a) in the relevant chief executive’s custody; or
(b) to which the relevant chief executive has access through any
arrangement with another chief executive.
(4) The chief executive must ensure that a treating doctor assesses the
report from a relevant chief executive and includes a statement of the young
detainee’s condition (the health schedule) in the young
detainee’s case management plan (if any).
(5) The health schedule must include—
(a) a summary of—
(i) the young detainee’s condition and health risks, including any
likelihood of the condition resulting in a medical emergency or the onset of
significant health problems and any associated symptoms; and
(ii) a treatment regime for the young detainee; and
(b) details of any medicine approved by the chief executive under section
186 for use by the young detainee.
Examples—s (5)
1 Young detainee D has diabetes. The health schedule for D explains the
type of diabetes, the treatment required, any likely medical emergency or
significant health problem and the associated symptoms, such as
hypoglycaemia.
2 Young detainee P has epilepsy. The health schedule for P explains the
type of epilepsy, the treatment required, and the symptoms and consequences of
any failure to maintain the treatment regime.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(6) A youth detention policy or operating procedure may include provision
in relation to the health schedule, including provision in relation to any of
the following:
(a) the content of the schedule and, in particular, any statement about
the young detainee’s health risks and treatment regime;
(b) the people who may access the health schedule and the circumstances
for access.
(7) The chief executive must ensure that the relevant chief
executive’s report and the health schedule is available only to people
authorised by the chief executive.
(8) In this section:
health record—see the Health Records (Privacy and
Access) Act 1997, dictionary.
personal health information—see the Health Records
(Privacy and Access) Act 1997, dictionary.
relevant chief executive means a chief executive whose
administrative unit is responsible for any provision of the following
Acts:
(a) the Corrections Management Act 2007;
(b) the Crimes (Sentence Administration) Act 2005;
(c) the Disability Services Act 1991;
(d) the Health Act 1993;
(e) the Mental Health (Treatment and Care) Act 1994.
Note Compliance with a request under this section does not involve a
contravention of a privacy principle under the Health Records (Privacy and
Access) Act 1997 (see that Act, s 5).
(1) The chief executive may approve the use of a medicine, other than a
prescription only medicine, by a young detainee.
Note The taking of an unauthorised medicine by a young detainee is a
behaviour breach (see s 286).
(2) The chief executive may seek the advice of a treating doctor before
approving the use of a medicine, other than a prescription only medicine, by a
young detainee.
(3) If the chief executive approves the use of a medicine by a young
detainee, the chief executive must ensure that the details of the approval, and
the reasons for it, are recorded in relation to the young detainee in the
register kept under section 184.
(4) In this section:
prescription only medicine—see the Medicines,
Poisons and Therapeutic Goods Act 2007, section 11.
187 Case
management plans—scope etc
(1) The chief executive—
(a) must maintain an individual case management plan for each young
detainee other than a young remandee; and
(b) may maintain an individual case management plan for a young detainee
who is a young remandee.
(2) In deciding whether to maintain a case management plan for a young
remandee, the chief executive—
(a) must consider the following:
(i) the period of remand;
(ii) the young remandee’s age and development;
(iii) the young remandee’s educational needs;
(iv) any special needs of the young remandee; and
(b) may consider any other relevant matter.
(3) A case management plan for a young detainee must—
(a) outline education and training and activities for the young detainee;
and
(b) be based on an assessment of the needs, capacities and disposition of
the young detainee; and
(c) be consistent with the resources available to the chief executive to
manage the young detainee; and
(d) include provision to ensure that adequate plans are made for the young
detainee’s return to community life at the end of the detention, taking
into account the young detainee’s needs.
188 Transgender
and intersex young detainees—sexual identity
(1) This section applies to a transgender or intersex young
detainee.
(2) On admission to a detention place—
(a) the young detainee may tell the chief executive the sex the young
detainee chooses to be identified with; or
(b) if the young detainee fails to make a choice under
paragraph (a)—the chief executive may choose the sex the young
detainee is to be identified with having regard to the presentation of the young
detainee on admission to the place.
Note Fail includes refuse, see
the Legislation Act, dict, pt 1.
(3) The chief executive may, on application by the young detainee, approve
a change in the sex the young detainee chooses to be identified with, having
regard to any report obtained under subsection (4) or (5).
(4) Before making a decision under subsection (2) (b) or (3), the chief
executive must obtain a report by a non-treating doctor or other non-treating
health professional about the young detainee’s sexual identity.
(5) The chief executive may also obtain a report by a non-treating doctor
or non-treating health professional about the young detainee’s sexual
identity chosen under subsection (2) (a) if the chief executive believes on
reasonable grounds that obtaining the report—
(a) is in the best interests of the young detainee; and
(b) is necessary to make a decision in relation to the young
detainee’s placement or case management.
(6) The chief executive must—
(a) give the young detainee written notice of a decision by the chief
executive under subsection (2) or (3); and
(b) ensure that the young detainee’s sex chosen under this section
is entered in the register of young detainees.
(7) For criminal matters chapters, the sex of the young detainee is taken
to be the young detainee’s sex entered in the register of young detainees
under subsection (6) (b).
Examples—effect of this
section
The conduct of searches of the young detainee, and the allocation of
accommodation and hygiene facilities for the young detainee, would be on the
basis that the young detainee was a person of the sex chosen and entered in the
register of young detainees.
Note 1 The young detainee may require that either a male or female
conduct a search (see s 249 (2) (Searches—transgender and intersex
young detainees)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
189 Security
classification—basis etc
(1) The chief executive—
(a) must give a young detainee a security classification; and
(b) may review the classification at any time.
(2) When deciding a young detainee’s security classification, the
chief executive must consider the following:
(a) the reason for the detention, including the nature of any offence for
which the young detainee is detained;
(b) the risks posed by the young detainee if the young detainee were to
escape;
(c) the risk of the young detainee escaping;
(d) the risks posed by the young detainee while at a detention
place;
(e) the risks to the young detainee of being accommodated with particular
young detainees or in particular areas at a detention place;
(f) any other matter prescribed by regulation.
(3) The chief executive may also consider anything else the chief
executive considers relevant.
(4) The security measures to which a young detainee is subject under a
security classification must be the minimum necessary to ensure secure detention
of the young detainee.
190 Property
of young detainees
(1) The chief executive may allow a young detainee’s property to be
brought into a detention place.
(2) However, the chief executive may give directions imposing conditions
in relation to the property, including conditions in relation
to—
(a) the nature, amount and location of property that may be held by a
young detainee at the place; and
(b) the use of the property.
(3) The chief executive must ensure that the register of young detainees
includes details of the property each young detainee has at a detention
place.
(4) A youth detention policy may make provision in relation to a young
detainee’s property, including provision in relation to the
following:
(a) storage of the property;
(b) access to, and use of, the property;
(c) transfer of the property;
(d) compensation for loss of, or damage to, the property;
(e) return of the property to the young detainee.
(5) In this section:
young detainee’s property does not include a prohibited
thing.
Note Part 7.9 (Seizing property) provides generally for the seizure,
forfeiture and return of property.
191 Possession
of prohibited things
(1) A young detainee commits an offence if the young detainee possesses a
prohibited thing.
Maximum penalty: 5 penalty units.
(2) Subsection (1) does not apply if the chief executive approves the
young detainee’s possession of the thing.
192 Mandatory
reporting of threats to security etc at detention place
(1) This section applies if—
(a) an adult who works or provides services at a detention place (whether
paid or unpaid) suspects on reasonable grounds that a young detainee or anyone
else at the detention place—
(i) poses a significant threat to security or good order at the detention
place; or
(ii) has something concealed on him or her that is a prohibited thing or
that may be used by the young detainee in a way that may involve a risk to the
personal safety of anyone at the detention place; and
(b) the person’s reasons for the suspicion arise from information
obtained by the person during the course of, or because of, the person’s
work or providing of services at the detention place.
Examples—people working or providing
services at detention place
1 a youth detention officer
2 a health professional
3 a community-based youth worker
4 a teacher
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The person must, as soon as practicable after forming the suspicion,
report to the chief executive—
(a) the name or description of the young detainee; and
(b) the reasons for the person’s suspicion.
193 Trust
accounts of young detainees
(1) The chief executive must ensure that money belonging to a young
detainee is held for the detainee in a trust account.
(2) The chief executive may deduct amounts from a young detainee’s
trust account for payment of any fine or reparation that must be paid as a
result of disciplinary action against the young detainee.
(3) A regulation may make provision in relation to the operation or
maintenance of trust accounts.
(4) In this section:
disciplinary action—see section 316.
194 Register
of searches and uses of force
(1) The chief executive must keep a register of—
(a) searches under any of the following:
(i) section 253 (Strip searches on admission to detention place);
(ii) section 257 (Strip searches directed by chief executive);
(iii) section 263 (Body searches directed by chief
executive);
(iv) section 274 (Searches—premises and property
generally);
(v) section 275 (Searches of young detainee cells—privileged
material);
(vi) section 276 (Searches of young detainee cells—suspected
privileged material); and
(b) incidents involving the use of force under division 6.6.4.
(2) For subsection (1) (a), the register must contain the following
details in relation to each search:
(a) the name of the young detainee searched;
(b) the reason for the search;
(c) when and where the search was conducted;
(d) the name of each person present at any time during the search;
(e) if, under section 259 (4), section 265 (5) or section
269 (4), a requirement for a youth detention officer or assistant to be the
same sex as the young detainee was not complied with—the chief
executive’s reasons for believing the requirement did not apply;
(f) details of anything seized during the search;
(g) details of any force used for conducting the search, and why force was
used;
(h) anything else prescribed by regulation.
(3) For subsection (1) (b), the register must include details of each
incident, including the circumstances, the decision to use force and the force
used.
(4) The register may contain any other details the chief executive
considers relevant.
(5) The register must be available for inspection by any of the
following:
(a) a judge;
(b) a magistrate;
(c) an official visitor;
(d) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(e) the public advocate;
(f) the ombudsman;
(g) a person prescribed by regulation.
(6) The public advocate must inspect the register at least once every
3 months.
Division
6.6.2 Monitoring
195 Disapplication
of Listening Devices Act
The Listening Devices Act 1992 does not apply in relation to
anything done at a detention place.
196 Monitoring—general
considerations
In exercising a function under this division, the chief executive must
ensure, as far as practicable, that the following are balanced
appropriately:
(a) the need to protect the safety of young detainees, authorised people,
other people who work at or visit detention places, and the community;
(b) the need for security and good order at detention places;
(c) the benefits of young detainees maintaining contact with the community
outside detention places;
(d) the need to protect the privacy of young detainees;
(e) the need to detect prohibited things entering, at, or leaving
detention places;
(f) the need to prevent intimidation and corruption at detention places,
and the commission of offences;
(g) anything else the chief executive believes on reasonable grounds to be
relevant.
The chief executive must take reasonable steps to ensure that each person
who enters a detention place is aware that the person may be monitored, by
people and electronically, and that the person’s actions and voice may be
recorded.
198 Monitoring
at detention places
The chief executive may arrange for any part of a detention place to be
monitored for any activity, including the movement of anyone at the
place.
Examples—monitoring
direct viewing, closed-circuit television coverage and the use of other
devices for detecting movement
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
199 Monitoring
telephone calls etc
(1) This section applies in relation to an electronic communication with a
young detainee, other than a protected electronic communication.
(2) The chief executive may do either or both of the following in relation
to the communication:
(a) monitor the communication;
(b) record the communication.
(3) The chief executive must tell the parties to the communication that
the communication might be monitored and recorded.
(4) If the communication reveals information about the commission of an
offence, the chief executive must give the information to the chief police
officer.
(5) In this section:
electronic communication means communication
by—
(a) telephone, email or fax; or
(b) any other electronic means.
protected electronic communication means an electronic
communication between a young detainee and any of the following:
(a) a lawyer representing the young detainee;
(b) an official visitor;
(c) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(d) the public advocate;
(e) the ombudsman;
(f) a person prescribed by regulation.
200 Monitoring
ordinary mail
(1) The chief executive may open and search a young detainee’s mail,
other than protected mail.
(2) The chief executive may read a young detainee’s ordinary mail
only if the chief executive suspects on reasonable grounds that the
mail—
(a) may undermine security or good order at a detention place;
or
(b) may revictimise a victim; or
(c) may circumvent any process for investigating complaints or reviewing
decisions under this Act; or
(d) may not be in the best interests of the young detainee.
(3) However, the chief executive may make a youth detention policy or
operating procedure in relation to reading a random selection of young
detainees’ ordinary mail.
(4) In this section:
ordinary mail means mail other than protected mail.
protected mail means mail between a young detainee and any of
the following:
(a) a lawyer representing the young detainee;
(b) an official visitor;
(c) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(d) the public advocate;
(e) the ombudsman;
(f) a person prescribed by regulation.
search includes search—
(a) with any device using electronic or other technology; and
(b) by physical means; and
(c) with the assistance of a search dog.
201 Monitoring
protected mail
(1) The chief executive may open and search a young detainee’s
protected mail in the young detainee’s presence if the chief executive
suspects on reasonable grounds that the mail contains—
(a) something that may physically harm the addressee; or
(b) a prohibited thing.
(2) However, the chief executive must not read a young detainee’s
protected mail without the young detainee’s written consent.
(3) In this section:
search —see section 200.
202 Mail
searches—consequences
(1) Subject to section 279 (Seizing mail etc), a young detainee’s
mail, once searched, must be delivered to the addressee as soon as
practicable.
(2) If a search of a young detainee’s mail reveals information
about, or evidence of the commission of an offence, the chief executive must
give the information to the chief police officer.
Division
6.6.3 Segregation
Subdivision
6.6.3.1 General
203 Definitions—div
6.6.3
In this division:
external reviewer means a person appointed as an external
reviewer under section 308.
health segregation direction means a segregation direction
given under section 213.
safe room segregation direction means a direction under
section 208.
segregation, of a young detainee—
(a) means the restriction or denial of the young detainee’s
opportunity—
(i) to go into, or be in, a particular part of a detention place;
or
(ii) to associate with other young detainees; and
(b) includes separate confinement.
segregation direction means—
(a) for division 6.6.3, a direction under any of the following:
(i) section 208 (Segregation—safe room);
(ii) section 211 (Segregation—safety and security);
(iii) section 212 (Segregation—protective custody);
(iv) section 213 (Segregation—health etc); and
(b) for subdivision 6.6.3.4, a direction under any of the
following:
(i) section 211 (Segregation—safety and security);
(ii) section 212 (Segregation—protective custody);
(iii) section 213 (Segregation—health etc).
204 Purpose
of segregation under div 6.6.3
To remove any doubt, segregation under this division must not be used for
punishment or disciplinary purposes.
205 Segregation
not to affect minimum living conditions
(1) The segregation of a young detainee under this division is not to
affect the standards applying to the young detainee under section 140
(Detention places—minimum living conditions).
(2) However, subsection (1) does not prevent the application of the
standards in a way that is necessary and reasonable for the purpose of the
segregation.
206 Notice
of segregation directions—safe room and other
(1) If the chief executive gives a segregation direction, the chief
executive must prepare a notice—
(a) stating the direction; and
(b) explaining why the direction was given; and
(c) stating when the direction takes effect; and
(d) stating how long the direction lasts; and
(e) explaining that the direction may be reviewed or
revoked—
(i) for a safe room segregation direction—under section 210 (Review
of safe room segregation directions); or
(ii) for another segregation direction—under
subdivision 6.6.3.4 (Review of certain segregation directions).
(2) A notice under subsection (1) must be given as soon as practicable
to—
(a) the young detainee; and
(b) if the young detainee is under 18 years old—a parent or someone
who has daily care responsibility, or long-term care responsibility, for the
young detainee; and
(c) if the young detainee is 18 years old or older—the young
detainee’s nominated person; and
(d) the public advocate.
Subdivision
6.6.3.2 Safe room segregation
207 Designation
of safe rooms
(1) The chief executive may, in writing, declare a part of a detention
place to be a safe room.
(2) The chief executive may declare a part of a place under
subsection (1) only if satisfied that—
(a) its design will minimise the harm that a young detainee can do to
himself or herself while in the room; and
(b) it allows monitoring of, and communication with, the young detainee by
the chief executive and health professionals (other than non-treating health
professionals).
208 Segregation—safe
room
(1) The chief executive may direct that a young detainee be segregated
from other young detainees by separate confinement in a safe room
if—
(a) the chief executive believes on reasonable grounds that the
segregation is necessary to prevent an imminent risk of the young detainee
harming themself; and
(b) the chief executive has—
(i) tried less restrictive ways to prevent the young detainee from
engaging in harmful conduct but the less restrictive ways have not been
successful; or
(ii) considered less restrictive ways to prevent the young detainee from
engaging in harmful conduct but the less restrictive ways were not
appropriate.
(2) When considering whether to make the direction, the chief executive
must have regard to the young detainee’s age, sex, maturity, cultural
identity physical and mental health and any history of abuse.
(3) The chief executive may give the direction at any time, on the chief
executive’s own initiative.
(4) The chief executive must revoke the direction if the chief executive
believes on reasonable grounds that the grounds for making the direction no
longer exist.
209 Safe
room segregation directions—privacy
(1) The confining of a young detainee under a safe room segregation
direction, and any force used to compel compliance with the direction, must not
be done in the presence or sight of another young detainee.
(2) However, subsection (1) does not apply if the chief executive believes
on reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
young detainee or someone else; and
(b) compliance with subsection (1) would exacerbate the threat.
210 Review
of safe room segregation directions
(1) The chief executive must review a safe room segregation
direction—
(a) after it has been in effect for 2 hours; and
(b) at the end of every subsequent 2 hour period for which it is in
effect.
(2) When reviewing a direction under subsection (1) (b), the chief
executive must—
(a) seek the advice of a health professional (other than a non-treating
health professional) about the action the chief executive should take under
subsection (4); and
(b) have regard to that advice in deciding what action to take.
(3) The chief executive may also review a safe room segregation direction
at any other time, on the chief executive’s own initiative or on request
by the young detainee.
(4) After reviewing a safe room segregation direction under
subsection (1) or (3), the chief executive must do 1 of the
following:
(a) confirm the direction;
(b) make a further safe room segregation direction if the grounds for
making the direction exist;
(c) revoke the direction under section 208 (4);
(d) make a direction under section 108 that the young detainee be
transferred to a health facility.
(5) To remove any doubt, the chief executive may make more than
1 further safe room segregation direction after a review.
Subdivision
6.6.3.3 Other segregation
211 Segregation—safety
and security
(1) The chief executive may direct that a young detainee be segregated
from other young detainees if the chief executive believes on reasonable grounds
that the segregation is necessary or prudent to ensure—
(a) the safety of anyone else at a detention place; or
(b) security or good order at a detention place.
(2) When making a direction under this section, the chief executive must
also have regard, as far as practicable, to any relevant cultural consideration
and the likely impact of segregation on the health or wellbeing of the young
detainee.
(3) The chief executive must revoke the direction if the chief executive
believes on reasonable grounds that the protection mentioned in subsection (1)
is no longer necessary or prudent.
212 Segregation—protective
custody
(1) The chief executive may direct that a young detainee be segregated
from other young detainees if the chief executive believes on reasonable grounds
that the segregation is necessary or prudent to protect the young
detainee’s safety.
(2) The chief executive may give the direction at any time, on the chief
executive’s own initiative or on request by the young detainee.
(3) The chief executive must revoke the direction if the chief executive
believes on reasonable grounds that the protection mentioned in subsection (1)
is no longer necessary or prudent.
213 Segregation—health
etc
(1) The chief executive may direct that a young detainee be segregated
from other young detainees if the chief executive believes on reasonable grounds
that the segregation is necessary or prudent—
(a) to assess the young detainee’s physical or mental health;
or
(b) to protect anyone (including the young detainee) from harm because of
the young detainee’s physical or mental health; or
(c) to prevent the spread of disease.
(2) The chief executive must revoke the direction if the chief executive
believes on reasonable grounds that the purpose mentioned in subsection (1) for
making the direction is no longer necessary or prudent.
(3) When acting under subsection (1) or (2), the chief executive must have
regard to any advice by a treating doctor given in relation to the segregation
of the young detainee.
214 Interstate
segregated detainees transferred to ACT
(1) This section applies if—
(a) an interstate segregation direction applies to a young detainee;
and
(b) the young detainee is transferred (however described) into custody at
a detention place in the ACT.
(2) Despite the transfer, the interstate segregation
direction—
(a) continues to apply in relation to the young detainee—
(i) as if it were a segregation direction under this division;
and
(ii) with any necessary changes, and any change prescribed by regulation;
and
(b) subject to this division, ends 3 days after the day the young detainee
is taken into custody at the detention place.
(3) In this section:
interstate segregation direction means a direction or order
(however described) that—
(a) corresponds substantially to a segregation direction under this
division; and
(b) is in force under a law of the Commonwealth, a State or another
Territory that is declared by regulation to be a corresponding law for this
section.
Subdivision
6.6.3.4 Review of certain segregation directions
215 Meaning
of segregation direction—subdiv 6.6.3.4
In this subdivision:
segregation direction means a direction under any of the
following:
(a) section 211 (Segregation—safety and security);
(b) section 212 (Segregation—protective custody);
(c) section 213 (Segregation—health etc).
216 Internal
review of segregation directions
(1) The chief executive—
(a) may review a segregation direction (the original segregation
direction) at any time, on the chief executive’s own initiative or
on request by the young detainee; and
(b) must review the direction before any transfer of the young detainee to
a correctional centre or elsewhere; and
(c) must review the direction—
(i) before the end of 7 days after it has been in force (the initial
review); and
(ii) before the end of 7 days after the day of the initial review;
and
(iii) before the end of each subsequent period of 14 days while it remains
in force; and
(d) for a health segregation direction—must review the direction on
request by a treating doctor.
(2) After reviewing the original segregation direction, the chief
executive may—
(a) confirm the direction; or
(b) make a further segregation direction under the same provision that the
original segregation direction was made under if the grounds for making the
direction exist; or
(c) revoke the original segregation direction under
section 211 (3), section 212 (3) or section
213 (2).
(3) When acting under subsection (2) in relation to a health segregation
direction, the chief executive must have regard to any advice by a treating
doctor given in relation to the segregation.
(4) To remove any doubt, the chief executive may make more than
1 further segregation direction after a review.
217 End
of segregation directions
Unless revoked sooner, a segregation direction ends at the end
of—
(a) 28 days after the day it is given; or
(b) if a further segregation direction has been given after review under
section 216—90 days after the day the further segregation direction, or
latest further segregation direction, is given.
218 Application
for review of segregation directions
(1) A young detainee may apply to an external reviewer for a review of a
segregation direction under section 219.
Note If a form is approved under s 885 for this provision, the form
must be used.
(2) Subject to any decision by the external reviewer under that section,
the application does not affect the segregation of the young detainee under the
segregation direction under review.
219 External
review of segregation directions
(1) On application under section 218, an external reviewer
may—
(a) review the segregation direction; or
(b) refuse to review the direction.
(2) Chapter 9 (Criminal matters—conduct of disciplinary reviews)
applies, with any necessary changes, in relation to the review as if it were a
review under that chapter.
(3) After completing a review, the external reviewer may—
(a) confirm the direction under review; or
(b) give any direction the chief executive may give under the section
authorising the direction under review, either by—
(i) amending the direction under review; or
(ii) setting aside the direction under review and making a direction in
substitution for the direction set aside.
220 Notice
of decision about segregation direction
(1) This section applies if an external reviewer has made a decision under
section 219 in relation to an application by a young detainee to review a
segregation direction.
(2) The external reviewer must give prompt written notice of the external
reviewer’s decision to—
(a) the young detainee; and
(b) if the young detainee is under 18 years old—a parent or someone
who has daily care responsibility, or long-term care responsibility, for the
young detainee; and
(c) if the young detainee is 18 years old or older—the young
detainee’s nominated person; and
(d) the chief executive.
(3) If the external reviewer refuses to review the segregation direction,
the notice must include the reasons for the refusal.
Note Under the Administrative Decisions (Judicial Review) Act
1989, a person aggrieved by an administrative decision made under an
enactment may apply to the Supreme Court for a review of the decision. Subject
to any order of the court, the making of the application does not affect the
operation of the decision or prevent its implementation (see
s 16).
Subdivision
6.6.3.5 Register of segregation directions
221 Register
of segregation directions
(1) The chief executive must keep a register containing the following
details in relation to each segregation direction given:
(a) the name of the young detainee who is subject to the
direction;
(b) the reason for the direction;
(c) the period for which the direction is in effect;
(d) details of people notified of the segregation direction under section
206 (Notice of segregation directions—safe room and other);
(e) details of any force used to compel compliance with the direction, and
why force was used;
(f) details of any confirmation of a segregation direction, or of any
other direction, made under subdivision 6.6.3.4 (Review of certain segregation
directions);
(g) anything else prescribed by regulation.
(2) The register may contain any other details the chief executive
considers relevant.
(3) The register must be available for inspection by any of the
following:
(a) a judge;
(b) a magistrate;
(c) an official visitor;
(d) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(e) the public advocate;
(f) the ombudsman;
(g) a person prescribed by regulation.
Division
6.6.4 Use of
force
222 Managing
use of force
(1) The chief executive must make arrangements to ensure, as far as
practicable, that the use of force in relation to the management of young
detainees is always—
(a) a last resort; and
(b) in accordance with this division.
Example
adoption of a methodology or protocol for the graduated use of
force
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive must also ensure, as far as practicable,
that—
(a) youth detention officers do not use force in relation to a young
detainee without first considering the following:
(i) the young detainee’s age, sex, physical and mental health and
any history of abuse;
(ii) if the proposed force involves any restraint of the young
detainee—the physical and developmental capacity of the young detainee;
and
(b) the use of force in relation to a young detainee is not observed by
any other young detainee.
(3) However, a youth detention officer need not comply with
subsection (2) if, in urgent circumstances, the officer believes on
reasonable grounds that doing so would create a risk of injury to the officer,
the young detainee or anyone else.
(4) The chief executive must ensure that a young detainee injured by the
use of force under this division is examined as soon as practicable by a
treating doctor and that appropriate health care is available to the young
detainee.
(5) Without limiting subsection (4), the chief executive must give a child
or young person the opportunity to be examined by a treating doctor or a nurse
after any use of force in relation to the child or young person.
(6) The chief executive must make a youth detention policy or operating
procedure in relation to the use of force, including provision in relation to
the following:
(a) the circumstances, and by whom, force may be used;
(b) the kinds of force that may be used;
(c) the use of restraints.
Note The power to make a youth detention policy or operating
procedure includes power to make different provisions in relation to different
matters or different classes of matters, and provisions that apply differently
by reference to stated exceptions or factors (see Legislation Act, s
48).
223 Authority
to use force
A youth detention officer may use force under this division
if—
(a) the officer believes on reasonable grounds that the purpose for which
force may be used cannot be achieved in another way; and
(b) the force is necessary and reasonable for any of the
following:
(i) to compel compliance with a direction given in relation to a young
detainee by the chief executive;
(ii) to prevent or stop the commission of an offence or behaviour
breach;
(iii) to prevent unlawful damage, destruction or interference with
property;
(iv) to defend the person or someone else;
(v) to prevent a young detainee from inflicting self-harm;
(vi) to prevent a young detainee from escaping.
(1) A youth detention officer may use force under this division only if
the officer—
(a) gives a clear warning of the intended use of force; and
(b) allows enough time for the warning to be observed; and
(c) uses no more force than is necessary and reasonable in the
circumstances; and
(d) uses force, as far as practicable, in a way that reduces the risk of
causing injury.
(2) However, the youth detention officer need not comply with
subsection (1) (a) or (b) if, in urgent circumstances, the officer
believes on reasonable grounds that doing so would create a risk of injury to
the officer, the young detainee or anyone else.
Example—urgent
circumstances
the young detainee is assaulting someone or engaging in self-harm
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(1) The use of force under this division includes the use of
restraint.
(2) The chief executive must ensure, as far as practicable, that the use
of force involving a restraint is proportionate to the circumstances, and in
particular that—
(a) the circumstances are sufficiently serious to justify the use; and
(b) the kind of restraint is appropriate in the circumstances;
and
(c) the restraint is used appropriately in the circumstances.
(3) The chief executive must also ensure that restraints are only used
under this division—
(a) by youth detention officers trained to use them; and
(b) in accordance with a youth detention policy or operating procedure
that applies to their use.
(4) In applying force under this division, a youth detention officer may
use a restraint, including any of the following:
(a) body contact;
(b) handcuffs, restraint jackets and other restraining devices;
(c) anything else prescribed by regulation.
226 Monthly
reports about use of force
The chief executive must ensure that, as soon as practicable after the end
of each month, a youth detention officer gives the chief executive a report
summarising the incidents (if any) during the month that involved the use of
force in relation to a young detainee.
Division
6.6.5 Access to detention
places
(1) The chief executive may declare conditions that apply in relation to
visits to a detention place.
Examples—conditions
declared
1 the times and duration of visits
2 the number of visitors allowed
3 the circumstances in which visitors may be monitored
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) A declaration is a disallowable instrument.
Note 1 The power to make an instrument includes power to make
different provisions in relation to different matters or different classes of
matters, and provisions that apply differently by reference to stated exceptions
or factors (see Legislation Act, s 48.)
Note 2 A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
228 Notice
of visiting conditions
(1) The chief executive must take reasonable steps to bring the visiting
conditions to the attention of visitors at a detention place.
(2) Without limiting subsection (1), the chief executive must ensure
that—
(a) a notice is prominently displayed at each entrance to the place open
to visitors to the effect that visiting conditions apply at the place;
and
(b) a copy of the visiting conditions is available for inspection on
request by visitors at the place.
229 Taking
prohibited things etc into detention place
(1) A person commits an offence if the person—
(a) takes a prohibited thing into a detention place; or
(b) gives a prohibited thing to a young detainee; or
(c) removes a prohibited thing from a detention place.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
(2) Subsection (1) does not apply to any action approved by the chief
executive.
(3) In this section:
give includes send.
prohibited thing includes something the person intends a
detainee to use for making a prohibited thing or use otherwise in relation to a
prohibited thing.
230 Directions
to visitors
(1) The chief executive may, orally or in writing, give a direction to a
visitor at a detention place to do, or not do, something if the chief executive
believes on reasonable grounds that the direction is necessary and
reasonable—
(a) to ensure compliance with the visiting conditions; or
(b) for security or good order at a detention place.
Note The chief executive may also direct a youth detention officer
to search a visitor (see s 273).
(2) A person commits an offence if the person fails to comply with a
direction given to the person under this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(3) An offence against this section is a strict liability
offence.
(4) Subsection (2) does not apply if the person takes reasonable steps to
comply with the direction.
231 Directions
to leave detention place etc
(1) The chief executive may direct a person at a detention
place—
(a) not to enter the place; or
(b) if the person is already in the place—to leave the
place.
(2) However, the chief executive may give the direction only
if—
(a) the chief executive suspects on reasonable grounds
that—
(i) the person is intoxicated; or
(ii) the person has possession of a prohibited thing; or
(iii) the direction is necessary and reasonable for security or good order
at a detention place; or
(iv) the direction is necessary and reasonable to safeguard the best
interests of a young detainee; or
Example—subpar
(iv)
the person is intentionally causing a detainee distress
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(b) the person contravenes a direction given to the person
under—
(i) section 230 (Directions to visitors); or
(ii) section 255 (Strip searches on admission—directing person to
leave); or
(iii) section 267 (Body searches—directing people to
leave).
(3) To remove any doubt, this section applies to a family member or
significant person for a young detainee, even if the person has been visiting
the young detainee for less than 1 hour.
(4) A person commits an offence if the person fails to comply with a
direction given to the person under this section.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(5) An offence against this section is a strict liability
offence.
(6) Subsection (4) does not apply if the person takes reasonable steps to
comply with the direction.
232 Removing
people from detention place
(1) The chief executive may direct a youth detention officer to enforce a
direction under section 231 if the officer given the direction contravenes the
direction.
(2) The youth detention officer may use force that is necessary and
reasonable to enforce the direction.
Division
6.6.6 Maintenance of family
relationships
233 Chief
executive may allow young child to stay with young detainee
(1) This section applies to a young detainee if—
(a) the young detainee has a child who is under 6 years old and not
enrolled in school; and
(b) before being detained, the young detainee was the primary caregiver
for the child or was having contact with the child.
(2) The chief executive may, by direction, allow the young detainee to
have contact with, or care for, the child in a detention place.
(3) However, the chief executive must not give a direction under
subsection (2) unless the chief executive—
(a) has carried out a care and protection appraisal of the child;
and
(b) is satisfied that it is in the best interests of the child for the
young detainee to have contact with, or care for, the child in the detention
place.
(4) The chief executive may make a youth detention policy or operating
procedure about the arrangements to apply in relation to a young detainee having
contact with, or caring for, a child in a detention place.
Part
6.7 Alcohol and drug
testing
In this part:
drug—
(a) means—
(i) a controlled drug under the Criminal Code, section 600; or
(ii) a substance prescribed by regulation; but
(b) does not include any of the following:
(i) a drug lawfully supplied, and taken as prescribed or directed, by a
health professional;
(ii) a drug lawfully supplied and self-administered;
(iii) a drug exempted under section 235 (3).
non-treating nurse means a nurse authorised under
section 98.
positive test sample—see section 235.
test sample means a sample of breath, saliva, urine, hair,
blood, or anything else prescribed by regulation.
235 Positive
test samples
(1) A person is taken to provide a positive test sample for
alcohol or a drug if, when directed under this Act to provide a test
sample—
(a) the person fails to provide a test sample in accordance with the
direction; or
Note Fail includes refuse, see
the Legislation Act, dict, pt 1.
(b) the person provides an invalid test sample; or
(c) for a young detainee—the young detainee provides a test sample
that shows that the young detainee has taken alcohol or a drug.
(2) However, subsection (1) (a) does not apply if the person has a
reasonable excuse for failing to provide the test sample within a reasonable
time of the direction being given.
Examples—reasonable
excuse
1 a medical condition that prevents the person from providing a test sample
as directed
2 prescribed medication that may affect test results
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The chief executive may exempt a drug from the application of this
part.
(4) An exemption is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(5) In this section:
invalid—a test sample provided by a person is
invalid if the person—
(a) tampers, or attempts to tamper, with the test sample; or
(b) otherwise changes, or attempts to change, the results of the test
sample.
Division
6.7.2 Alcohol and drug
testing—detainees
236 Alcohol
and drug testing of young detainees
(1) The chief executive may direct a young detainee to provide a stated
kind of test sample.
(2) The chief executive, a non-treating doctor or a non-treating nurse may
give a young detainee a direction about the way the young detainee must provide
the test sample.
(3) However—
(a) a direction under this section must be consistent with any requirement
of an operating procedure made for this section; and
(b) only a non-treating doctor or a non-treating nurse may take a blood
sample.
(4) A non-treating doctor or non-treating nurse who takes a test sample
from a young detainee must give the sample to a youth detention
officer.
(5) The chief executive must, as soon as practicable after the chief
executive receives the results of any test conducted on the test sample, give
notice of the results to—
(a) the young detainee; and
(b) if the young detainee is under 18 years old—a person who has
daily care responsibility or long-term care responsibility for the young
detainee; and
(c) if the young detainee is 18 years old or older—a person
nominated by the young detainee.
237 Effect
of positive test sample by young detainee
(1) This section applies if—
(a) a young detainee is directed under this Act to provide a test sample;
and
(b) the test sample provided by the young detainee is positive.
(2) The chief executive may have regard to the positive test sample in
making any decision in relation to the management of the young detainee under
this Act.
Examples—decisions—s
(2)
1 decisions under s 187 (Case management plans—scope etc) or
s 189 (Security classification—basis etc)
2 decisions under ch 8 (Criminal matters—discipline at detention
places)
Note 1 The taking of alcohol or a drug (in any way) into the body is
a behaviour breach (see s 286). The results of the analysis of a substance
under this Act, signed by an analyst, is evidence of the facts stated in the
certificate (see s 881).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Division
6.7.3 Alcohol and drug
testing—youth detention officers
238 Alcohol
and drug testing of youth detention officers
(1) A regulation may make provision in relation to alcohol and drug
testing of youth detention officers whose duties bring them into contact with
detainees.
(2) In particular, a regulation may make provision in relation to any of
the following:
(a) the circumstances for testing, including when and where tests may be
conducted;
(b) the conduct of the tests.
Part
6.8 Young
detainees—leave
Division
6.8.1 Local
leave
239 Local
leave directions
(1) The chief executive may, in writing, direct that a young detainee be
taken from a detention place to another place in the ACT for any purpose the
chief executive considers appropriate.
Example
a direction that a young detainee be taken to a place to assist the young
detainee’s education and training
Note 1 Power given under an Act to make a statutory instrument
(including a direction) includes power to amend or revoke the instrument (see
Legislation Act, s 46 (1)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) In making a decision under subsection (1), the chief executive must
consider the young detainee’s best interests.
(3) A direction is subject to the following conditions:
(a) any condition prescribed by regulation;
(b) any other condition, consistent with the conditions (if any)
prescribed by regulation, that—
(i) the chief executive believes on reasonable grounds is necessary and
reasonable; and
(ii) is stated in the direction.
Example—condition stated in
direction
a condition that an escort officer escorts the detainee
(1) If the chief executive gives a young detainee a local leave direction
under section 239, the chief executive must give the young detainee a written
permit (a local leave permit) to be absent from the detention
place for the purpose for which the direction was given.
(2) The chief executive may give a young detainee a written permit (also
a local leave permit) to be absent from a detention place,
and to be in another place in the ACT, for any other purpose the chief executive
considers appropriate.
Examples—purposes
1 to attend an education or training program
2 to attend a health or rehabilitation service
3 for compassionate reasons
4 to attend employment or an interview for employment
Note 1 If a form is approved under s 885 for this provision, the
form must be used.
Note 2 Power given under an Act to make a statutory instrument
(including a direction) includes power to amend or revoke the instrument (see
Legislation Act, s 46 (1)).
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) In making a decision under subsection (2), the chief executive must
consider the young detainee’s best interests.
(4) A local leave permit must state the following:
(a) the purpose for which the leave is granted;
(b) for a permit to attend an educational or training program—the
place where the program is being undertaken, and the period for which the leave
is granted;
(c) for a permit to attend employment—the place of the employment,
and the period for which the leave is granted;
(d) for a permit (other than a permit mentioned in paragraph (b) or
(c))—the period, not longer than 7 days, for which the leave is granted;
(e) any conditions to which the leave is subject.
(5) A local leave permit is subject to the following conditions:
(a) any condition prescribed by regulation;
(b) any other condition, consistent with the conditions (if any)
prescribed by regulation, that—
(i) the chief executive believes on reasonable grounds is necessary and
reasonable; and
(ii) is stated in the permit.
Example—condition stated in leave
permit
a condition prohibiting association with a particular person or being near
a particular place
(6) A local leave permit authorises the young detainee to be absent from
the detention place in accordance with the permit—
(a) unescorted; or
(b) if the permit is subject to a condition that an escort officer escort
the young detainee—while under escort in accordance with the
condition.
Division
6.8.2 Interstate
leave
241 Interstate
leave permits
(1) The chief executive may, by written notice (an interstate leave
permit) given to a young detainee, give the young detainee leave to
travel to and from, and remain in, another State.
Note State includes the Northern Territory (see Legislation
Act, dict, pt 1).
(2) In making a decision under subsection (1), the chief executive must
consider the young detainee’s best interests.
(3) An interstate leave permit must include the following
details:
(a) the State to which the permit applies;
(b) the purpose for which the leave is granted;
(c) for a permit to attend an educational or training program—the
place where the program is being undertaken, and the period for which the leave
is granted;
(d) for a permit to attend employment—the place of the employment,
and the period for which the leave is granted;
(e) for a permit (other than a permit mentioned in paragraph (c)
or (d))—the period, not longer than 7 days, for which the leave is
granted.
Note 1 If a form is approved under s 885 for this provision, the
form must be used.
Note 2 Power given under an Act to make a statutory instrument
(including an interstate leave permit) includes power to amend or revoke the
instrument (see Legislation Act, s 46 (1)).
(4) An interstate leave permit may be issued—
(a) for a young detainee with a high security classification—only if
the leave is to enable the young detainee to receive a health service or for a
compassionate reason; or
(b) in any other case—for any purpose the chief executive believes
on reasonable grounds is appropriate.
(5) An interstate leave permit is subject to the following
conditions:
(a) any condition prescribed by regulation;
(b) any other condition, consistent with the conditions (if any)
prescribed by regulation, that—
(i) the chief executive believes on reasonable grounds is necessary and
reasonable; and
(ii) is stated in the permit.
Examples—conditions stated in
interstate leave permits
1 a condition that an escort officer stated in the permit escort the young
detainee
2 a condition prohibiting association with a particular person or being
near a particular place
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
242 Effect
of interstate leave permit
(1) An interstate leave permit for a young detainee authorises the young
detainee to be absent from a detention place in accordance with the
permit—
(a) unescorted; or
(b) if the permit is subject to a condition that an escort officer must
escort the young detainee—while under escort by the escort
officer.
(2) If an interstate leave permit is subject to a condition that the young
detainee be escorted by an escort officer, the permit authorises the escort
officer to escort the young detainee in accordance with the
permit—
(a) to and within the State stated in the permit (whether or not through
any other jurisdiction); and
(b) back to the detention place.
243 Powers
of escort officers
(1) An escort officer escorting a young detainee under an interstate leave
permit may, to keep custody of the young detainee under the permit or to arrest
the young detainee if the young detainee has escaped—
(a) give the young detainee any direction that the officer believes on
reasonable grounds is necessary and reasonable; and
(b) use force in accordance with division 6.6.4 (Use of force).
(2) An escort officer escorting a young detainee under an interstate leave
permit may conduct a scanning search, frisk search or ordinary search of the
young detainee if the officer suspects on reasonable grounds that the young
detainee may be carrying a prohibited thing.
(3) The following provisions apply, with any necessary changes and any
changes prescribed by regulation, in relation to a search under this
section:
(a) part 7.2 (Searches generally);
(b) part 7.3 (Scanning, frisk and ordinary searches);
(c) part 7.9 (Seizing property).
Division
6.8.3 Leave—miscellaneous
244 Lawful
temporary absence from detention place
(1) This section applies to a young detainee who is absent from a
detention place under any of the following:
(a) a direction by the chief executive, including a direction under
section 108 (Transfers to health facilities) or section 110 (Transfers to
correctional centres—under 21 years old);
(b) a local leave permit under section 240;
(c) an interstate leave permit under section 241;
(d) any other authority (however described) prescribed by
regulation.
(2) To remove any doubt, the young detainee is—
(a) taken to be in the chief executive’s custody; and
(b) if under escort by an escort officer—also taken to be in the
escort officer’s custody.
Chapter
7 Criminal matters—search and
seizure at detention places
Part
7.1 Preliminary—ch
7
In this chapter:
body search, of a young detainee, means a search of the young
detainee’s body, including an examination of an orifice or cavity of the
young detainee’s body.
frisk search, of a young detainee, means—
(a) a search of the young detainee conducted by quickly running the hands
over the young detainee’s outer clothing; and
(b) an examination of anything worn or carried by the young detainee that
is conveniently and voluntarily removed by the young detainee.
non-treating doctor means a doctor authorised under
section 98 (Health professionals—non-treating functions).
non-treating nurse means a nurse authorised under
section 98.
ordinary search, of a young detainee, means a
search of the young detainee or of anything in the young detainee’s
possession, and may include—
(a) requiring the young detainee to remove only the young detainee’s
overcoat, coat, jacket or a similar article of clothing and any footwear,
gloves, or headwear; and
(b) an examination of anything removed.
privileged—material is privileged
if––
(a) client legal privilege attaches to it; or
(b) it includes a protected confidence under the Evidence
(Miscellaneous Provisions) Act 1991, division 4.5 (Protection of counselling
communications).
prohibited thing means a thing declared to be a prohibited
thing under section 147.
scanning search, of a young detainee, means a search of the
young detainee by electronic or other means that does not require the young
detainee to remove the young detainee’s clothing or be touched by someone
else.
Examples—scanning
searches
1 passing a portable electronic or other device over or close to a young
detainee
2 requiring a young detainee to pass by or through an electronic or other
device
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
strip search, of a young detainee, means a search of the
young detainee, or of anything in the young detainee’s possession, under
section 253 (Strip searches on admission to detention place) or section 257
(Strip searches directed by chief executive) and may include—
(a) requiring the young detainee to remove all of the young
detainee’s clothing; and
(b) an examination of—
(i) the young detainee’s body (but not the young detainee’s
body orifices or cavities); and
(ii) the young detainee’s clothing.
246 Relationship
with other laws
To remove any doubt, this chapter is additional to, and does not limit, any
other provision about searches of young detainees under another territory law,
or a law of the Commonwealth, a State or another Territory.
Part
7.2 Searches
generally
247 Searches—intrusiveness
A person conducting a search of a young detainee under this chapter must
ensure, as far as practicable, that the search—
(a) is the least intrusive kind of search that is necessary and reasonable
in the circumstances; and
(b) is conducted in the least intrusive way that is necessary and
reasonable in the circumstances.
Example
searching for a prohibited thing by a scanning search rather than a frisk
search
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
248 Searches—use
of search dog
(1) The chief executive may direct a youth detention officer to use a
search dog to assist a youth detention officer in conducting a search under this
chapter.
(2) The chief executive may give the direction only if the chief executive
believes on reasonable grounds that the assistance of the dog would minimise the
intrusiveness of the search by the youth detention officer.
(3) The youth detention officer and search dog may enter, and remain at
any place, to assist in the conduct of a search under this chapter.
(4) An operating procedure may make provision in relation to the use of
search dogs under this chapter.
Examples—provision made by operating
procedure
1 the training and approval of search dogs for use by youth detention
officers
2 approvals for youth detention officers to use search dogs
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
249 Searches—transgender
and intersex young detainees
(1) This section applies if a transgender or intersex young detainee is to
be searched under this chapter.
(2) For a young detainee who fails to make a choice under
section 188 (2) (a) (Transgender and intersex young
detainees—sexual identity)—
(a) if the young detainee requires that a male conduct the search, the
young detainee is taken, for this chapter, to be male; and
(b) if the young detainee requires that a female conduct the search, the
young detainee is taken, for this chapter, to be female.
Note 1 For the criminal matters chapters, the sex of a young
detainee is taken to be the young detainee’s sex entered in the register
under s 188 (7) (Transgender and intersex young detainees—sexual
identity).
Note 2 For the meaning of transgender person and
intersex person, see the Legislation Act, s 169A and s
169B.
250 Notice
of strip and body searches—person responsible for or nominated by young
detainee
(1) If a strip search or body search is to be conducted on a young
detainee who is younger that 18 years old, the chief executive must ensure, as
far as practicable, that a person who has daily care responsibility, or
long-term care responsibility for the young detainee (other than the chief
executive) is told about the search—
(a) before the search is conducted; or
(b) if it is impracticable to tell the person before the search—as
soon as practicable after the search.
Note 1 In some circumstances the chief executive is a person with
daily care responsibility, or long-term care responsibilities, for a young
detainee (see div 1.3.2).
Note 2 A proposed strip or body search need not be conducted in the
presence of the person notified (see s 253, s 255 and s 265).
(2) If a strip search or body search is to be conducted on a young
detainee who is 18 years old or older, the chief executive must ensure, as far
as practicable, that the young detainee’s nominated person is told about
the search—
(a) before the search is conducted; or
(b) if it is impracticable to tell the person before the search—as
soon as practicable after the search.
Part
7.3 Scanning, frisk and ordinary
searches
251 Directions
for scanning, frisk and ordinary searches
(1) The chief executive may, at any time, direct a youth detention officer
to conduct a scanning search, frisk search or ordinary search of a young
detainee if the chief executive believes on reasonable grounds that the search
is prudent to ensure security or good order at a detention place.
(2) Also, a youth detention officer may conduct a scanning search, frisk
search or ordinary search of a young detainee if the officer suspects on
reasonable grounds that the young detainee is carrying—
(a) a prohibited thing; or
(b) something that may be used by the young detainee in a way that may
involve—
(i) an offence; or
(ii) a risk to the personal safety of the young detainee or someone else;
or
(iii) a risk to security or good order at a detention place.
252 Requirements
for scanning, frisk and ordinary searches
(1) The youth detention officer who conducts a scanning search, frisk
search or ordinary search of a young detainee must—
(a) tell the young detainee about the search and the reasons for the
search and ask for the young detainee’s cooperation; and
(b) for a frisk search or ordinary search—conduct the search in a
private area or an area that provides reasonable privacy for the young detainee;
and
(c) if clothing is seized because of the search—ensure the young
detainee is left with, or given, reasonably appropriate clothing to
wear.
(2) A frisk search or ordinary search of a young detainee must not be
conducted in the presence or sight of—
(a) another young detainee; or
(b) someone else whose presence is not necessary for the search.
(3) A frisk search of a young detainee must be conducted by a youth
detention officer of the same sex as the young detainee.
(4) Subsection (3) does not apply if the chief executive believes on
reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
young detainee or someone else; and
(b) compliance with subsection (3) would exacerbate the
threat.
Part
7.4 Strip searches—young
detainees
253 Strip
searches on admission to detention place
(1) The chief executive may direct a youth detention officer to strip
search a young detainee if the chief executive believes on reasonable grounds
that the strip search is necessary for an initial assessment under section 159
(Initial assessment).
(2) The strip search must be conducted in the presence of a person with
daily care responsibility, or long-term care responsibility, for the young
detainee if—
(a) the young detainee is under 18 years old; and
(b) the chief executive believes on reasonable grounds that it is
necessary, and in the best interests of the young detainee, for the person to be
present; and
(c) the young detainee agrees to the person being present.
(3) The chief executive may arrange for the search to be conducted in the
presence of a support person for the young detainee if—
(a) the young detainee is 18 years old or older; and
(b) the chief executive considers the presence of a support person
necessary or desirable because of the young detainee’s vulnerability;
and
(c) the young detainee agrees to the person being present.
(4) In making a decision under subsection (1) or (2), the chief executive
must have regard to the young detainee’s age, maturity, developmental
capacity and any known history.
254 Strip
searches of young detainees under 18 years old—no-one with parental
responsibility available
(1) This section applies to a strip search to which section 253 (2)
applies if—
(a) a person who has daily care responsibility, or long-term care
responsibility, for the young detainee cannot be contacted before the search is
conducted; or
Note For a requirement to contact a
person with parental responsibility, see s 250.
(b) no-one who has daily care responsibility, or long-term care
responsibility, for the young detainee is available to be present at the search;
or
(c) the young detainee does not agree to a person who has daily care
responsibility, or long-term care responsibility, for the young detainee being
present at the search.
(2) The chief executive must ensure that the strip search is conducted in
the presence of someone (a support person) who—
(a) the chief executive believes on reasonable grounds can support and
represent the interests of the young detainee; and
(b) the young detainee agrees should be present at the search.
Note In some circumstances the chief executive is a person who has
daily care responsibility, or long-term care responsibility, for a young
detainee (see div 1.3.2).
(3) However, the strip search may continue in the absence of a support
person if—
(a) the young detainee does not agree to a support person being present;
or
(b) the chief executive directs the support person to leave under section
255 (2).
255 Strip
searches on admission—directing person to leave
(1) This section applies if a strip search of a young detainee under
section 253 (Strip searches on admission to detention place) is being conducted
in the presence of—
(a) a person who has daily care responsibility, or long-term care
responsibility, for the young detainee; or
(b) a support person under section 253 (3) or section 254
(2).
(2) The chief executive may direct the person to leave if the chief
executive believes on reasonable grounds that the person is preventing or
hindering the conduct of the search.
256 Removing
people from search area
(1) The chief executive may direct a youth detention officer to enforce a
direction under section 255 (2) if the person given the direction
contravenes the direction.
(2) The youth detention officer may use force that is necessary and
reasonable to enforce the direction.
257 Strip
searches directed by chief executive
(1) The chief executive may direct a youth detention officer to strip
search a young detainee only if—
(a) the chief executive suspects on reasonable grounds that the young
detainee has something concealed on the young detainee that—
(i) is a prohibited thing; or
(ii) may be used by the young detainee in a way that may involve an
offence, a behaviour breach, a risk to the personal safety of the young detainee
or someone else, or a risk to the security or good order at a detention place;
and
(b) a scanning search, frisk search or ordinary search of the young
detainee has failed to detect the thing.
(2) To remove any doubt, the strip search need not be conducted in the
presence of a person who has daily care responsibility, or long-term care
responsibility, for the young detainee.
(3) This section does not apply to a strip search under section 253 (Strip
searches on admission to detention place).
258 Obligations
on youth detention officers before strip searches
(1) This section applies if a youth detention officer proposes to strip
search a young detainee.
(2) The youth detention officer must tell the young
detainee—
(a) whether the young detainee will be required to remove clothing during
the search; and
(b) if the young detainee will be required to remove clothing, why the
removal is necessary.
(3) If the young detainee asks why the search is being conducted in a
particular way, the youth detention officer must tell the young detainee the
reasons.
(4) The youth detention officer must ask for the young detainee’s
cooperation for the search.
259 Youth
detention officers at strip searches
(1) A strip search of a young detainee must be conducted—
(a) by a youth detention officer of the same sex as the young detainee;
and
(b) in the presence of 1 or more other youth detention officers, each of
whom must be the same sex as the young detainee.
(2) However, the number of youth detention officers present during the
search must be no more than is necessary and reasonable to ensure the search is
carried out as safely and effectively as possible.
(3) The youth detention officer conducting the search may direct another
youth detention officer mentioned in subsection (1) (b) to provide
assistance that the conducting officer believes on reasonable grounds is
necessary and reasonable for the search.
(4) The requirement in subsection (1) (b) that a youth detention
officer be the same sex as the young detainee does not apply if the chief
executive believes on reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
young detainee; and
(b) compliance with the requirement would exacerbate the threat.
260 Strip
searches—general rules
(1) The youth detention officer conducting a strip search of a young
detainee must conduct the strip search—
(a) in a way that—
(i) provides reasonable privacy for the young detainee; and
(ii) is appropriate, having regard as far as practicable, to the young
detainee’s sexuality and any known impairment, condition or history;
and
(b) as quickly as practicable.
(2) The strip search must be conducted in a private area or an area that
provides reasonable privacy for the young detainee.
(3) The strip search must not be conducted—
(a) in the presence of someone of the opposite sex to the young detainee,
other than—
(i) a person present under section 253 (2) or (3) (Strip searches on
admission to detention place) or section 254 (Strip searches of young
detainees under 18 years old—no-one with parental responsibility
available); or
(ii) another youth detention officer present under
section 259 (4); or
(b) in the presence or sight of someone else whose presence is not
necessary for the search or for the safety of anyone present.
(4) Subject to part 7.8 (Searches––use of force), the strip
search must not involve any touching of the young detainee’s body by a
youth detention officer.
261 Strip
searches—rules about visual inspection of young detainee’s
body
(1) A youth detention officer conducting a strip search of a young
detainee must not visually inspect the genital area of the young detainee and,
for a female young detainee, the young detainee’s breasts, unless the
officer suspects on reasonable grounds that it is necessary to do so for the
search.
(2) A strip search of a young detainee must not involve more visual
inspection of the young detainee’s body than is necessary and reasonable
for the search.
(3) Without limiting subsection (2), during the strip search of the young
detainee, any visual inspection of the young detainee’s genital area, anal
area, buttocks and, for a female young detainee, breasts must be kept to a
minimum.
262 Strip
searches—rules about young detainees’ clothing
(1) A strip search of a young detainee must not involve—
(a) the removal from the young detainee of more clothes than is necessary
and reasonable for the search; or
(b) the removal from the young detainee of more clothes at any time than
is necessary and reasonable for the search; or
(c) without limiting paragraph (b), both the upper and lower parts of the
young detainee’s body being uncovered at the same time.
(2) A young detainee who has been strip-searched must be allowed to dress
in private as soon as the search is finished.
(3) If clothing from a young detainee is seized during a strip search, the
youth detention officer conducting the search must ensure that the young
detainee is left with, or given, reasonably appropriate clothing to
wear.
Part
7.5 Body searches—young
detainees
263 Body
searches directed by chief executive
(1) The chief executive may direct a non-treating doctor to conduct a body
search of a young detainee if the chief executive suspects on reasonable grounds
that the young detainee—
(a) has ingested or inserted something in the young detainee’s body
that may jeopardise the young detainee’s health or wellbeing; or
(b) has a prohibited thing concealed within the young detainee’s
body that may be used in a way that may pose a substantial risk to security or
good order at a detention place.
(2) In making a decision under subsection (1), the chief executive must
have regard to the young detainee’s age, maturity, developmental capacity
and any known history.
264 Obligations
of chief executive before body searches
(1) This section applies if the chief executive proposes to direct a body
search of a young detainee under section 263.
(2) The chief executive must tell the young detainee—
(a) whether the young detainee will be required to remove clothing during
the search; and
(b) if the young detainee will be required to remove clothing, why the
removal is necessary.
(3) If the young detainee asks why the search is to be conducted in a
particular way, the chief executive must tell the young detainee the
reasons.
(4) The chief executive must ask for the young detainee’s
cooperation for the search.
(5) The chief executive must ensure that a body search is
conducted—
(a) in a private area or an area that provides reasonable privacy for the
young detainee; and
(b) in a way that provides reasonable privacy.
265 People
present at body searches
(1) A non-treating nurse must be present during the body search of a young
detainee.
(2) If the non-treating doctor conducting the body search is not the same
sex as the young detainee, the non-treating nurse present must be the same sex
as the young detainee.
Note If the doctor is not the same sex as the young detainee, the
doctor cannot touch the young detainee or examine the young detainee’s
body orifices (see s 271).
(3) The chief executive may direct 1 or more youth detention officers to
be present during the search, each of whom must be the same sex as the young
detainee.
(4) However, the number of youth detention officers present during the
search must be no more than is necessary and reasonable to ensure the search is
conducted as safely and effectively as possible.
(5) The requirement in subsection (3) that a youth detention officer be
the same sex as the young detainee does not apply if the chief executive
believes on reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
young detainee; and
(b) compliance with the requirement would exacerbate the threat.
(6) If the young detainee is under 18 years old, the search must be
conducted in the presence of a person who has daily care responsibility, or
long-term care responsibility, for the young detainee if—
(a) the chief executive believes that it is necessary, and in the best
interests of the young detainee, for the person to be present; and
(b) the young detainee agrees to the person being present.
(7) In making a decision under subsection (6), the chief executive must
have regard to the young detainee’s age, maturity, developmental capacity
and any known history.
(8) If the young detainee is 18 years old or older, the chief executive
may arrange for the search to be conducted in the presence of a support person
for the young detainee if—
(a) the chief executive considers the presence of a support person
necessary or desirable because of the young detainee’s vulnerability;
and
(b) the young detainee agrees to the person being present.
266 Body
searches of young detainees under 18 years old—no-one with parental
responsibility available
(1) This section applies in relation to a body search of a young detainee
who is under 18 years old if—
(a) a person who has daily care responsibility, or long-term care
responsibility, for the young detainee cannot be contacted before the search is
conducted; or
Note For a requirement to contact a
person with parental responsibility, see s 250.
(b) no-one who has daily care responsibility, or long-term care
responsibility, for the young detainee is available to be present at the search;
or
(c) the young detainee does not agree to a person who has daily care
responsibility, or long-term care responsibility, for the young detainee being
present at the search.
(2) The chief executive must ensure that the body search is conducted in
the presence of someone (a support person) who—
(a) the chief executive believes on reasonable grounds can support and
represent the interests of the young detainee; and
(b) the young detainee agrees should be present at the search.
Note In some circumstances the chief executive is a person who has
daily care responsibility, or long-term care responsibility, for a young
detainee (see div 1.3.2).
(3) However, the body search may continue in the absence of a support
person if—
(a) the young detainee does not agree to a support person being present;
or
(b) the chief executive directs the support person to leave under section
267 (2).
267 Body
searches—directing people to leave
(1) This section applies if a body search of a young detainee is being
conducted in the presence of—
(a) a person who has daily care responsibility, or long-term care
responsibility, for the young detainee; or
(b) a support person under section 265 (8) or section 266.
(2) The chief executive may direct the person to leave if the chief
executive believes on reasonable grounds that the person is preventing or
hindering the conduct of the search.
268 Removing
people from search area
(1) The chief executive may direct a youth detention officer to enforce a
direction under section 267 (2) if the person given the direction contravenes
the direction.
(2) The youth detention officer may use force that is necessary and
reasonable to enforce the direction.
269 Help
for body searches
(1) This section applies if the non-treating doctor conducting a body
search of a young detainee asks the chief executive for assistance that the
doctor believes on reasonable grounds is necessary and reasonable for the
search.
(2) The chief executive may direct a youth detention officer, or authorise
someone else present at the search (the assistant), to assist in
the conduct of the search.
(3) The assistant must be the same sex as the young detainee.
(4) However, subsection (3) does not apply if the chief executive believes
on reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
young detainee; and
(b) compliance with subsection (3) would exacerbate the threat.
270 Body
searches—rules about young detainees’ clothing
(1) A body search of a young detainee must not involve—
(a) the removal from the young detainee of more clothes than is necessary
and reasonable for the search; or
(b) the removal from the young detainee of more clothes at any time than
is necessary and reasonable for the search; or
(c) without limiting paragraph (b), both the upper and lower parts of the
young detainee’s body being uncovered at the same time.
(2) A young detainee who has been body-searched must be allowed to dress
in private as soon as the search is finished.
(3) If clothing from a young detainee is seized during a body search, the
chief executive must ensure that the young detainee is left with, or given,
appropriate clothing to wear.
271 Body
searches—rules about touching young detainees
For the body search of a young detainee, the non-treating doctor or
non-treating nurse may touch the young detainee and examine the young
detainee’s orifices, but only if the doctor or nurse is of the same sex as
the young detainee.
272 Seizing
things discovered during body searches
(1) A non-treating doctor conducting a body search of a young detainee may
seize anything mentioned in section 263 (Body searches directed by chief
executive) that is discovered during the search if seizing the thing would not
be likely to cause injury to the young detainee or someone else.
(2) The doctor must give the thing seized to a youth detention officer as
soon as practicable.
Part
7.6 Searching people other than
detainees
273 Searches
of people other than detainees
(1) The chief executive may direct a youth detention officer to conduct a
scanning search, frisk search or ordinary search of a person at a detention
place who is not a young detainee if the chief executive suspects on reasonable
grounds that the person is carrying—
(a) a prohibited thing; or
(b) anything else that creates, or is likely to create, a risk
to—
(i) the personal safety of anyone else; or
(ii) security or good order at the place.
(2) Part 7.3 (Scanning, frisk and ordinary searches) applies in relation
to a direction under this section, any frisk search, scanning search or ordinary
search conducted under the direction, and anything found in the search, in the
same way, but with any necessary changes, that it applies in relation to a young
detainee.
(3) However, part 7.8 (Searches—use of force) does not apply to a
search under this section.
Part
7.7 Searches of premises and
property
274 Searches—premises
and property generally
(1) The chief executive may, at any time, direct a youth detention officer
to search—
(a) any part of a detention place; or
(b) anything at a detention place, including anything in the custody or
possession of anyone at a detention place; or
(c) any vehicle used for transporting a young detainee.
Examples—searches
a search of any of the following for a prohibited thing:
(a) any area or building or part of a building (including a cell) at a
detention place;
(b) any storage area, including an area used by young detainees or
authorised people, at a detention place;
(c) any vehicle, machinery or equipment at a detention place
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However, this section does not authorise a search of—
(a) anyone at a detention place; or
(b) any clothing being worn at the time of the search by someone at a
detention place.
(3) In this section:
search includes search—
(a) with a device using electronic or other technology; and
(b) by physical means; and
(c) with the assistance of a search dog.
275 Searches
of young detainee cells—privileged material
(1) This section applies if a young detainee has privileged material at a
detention place.
(2) A youth detention officer may search the young detainee’s cell
under section 274 in the absence of the young detainee if—
(a) the young detainee removes the privileged material from the cell;
or
(b) the privileged material is stored in accordance with arrangements
under subsection (3).
(3) The chief executive may make arrangements for the secure storage at a
detention place of privileged material for young detainees.
276 Searches
of young detainee cells—suspected privileged material
(1) If a youth detention officer suspects on reasonable grounds that a
young detainee’s cell contains privileged material, the youth detention
officer may search the cell only if the young detainee is present.
(2) A search under subsection (1) may include an examination of any
privileged material, and anything containing the material, found in the
cell.
(3) However, the youth detention officer must not read any privileged
material found in the cell.
(4) The youth detention officer need not comply with subsection (1) or (3)
if the youth detention officer believes on reasonable grounds that urgent
circumstances exist and that compliance with the subsection would create a risk
of injury to the youth detention officer, the young detainee or someone
else.
Part
7.8 Searches—use of
force
277 Searches—use
of force
(1) A youth detention officer may use force that is necessary and
reasonable—
(a) to conduct a search under this chapter; or
(b) to assist at a body search under section 269 (Help for body searches);
or
(c) to prevent the loss, destruction or contamination of anything seized,
or that may be seized, during the search.
(2) However, the youth detention officer may use force only in accordance
with division 6.6.4 (Use of force).
Part
7.9 Seizing
property
278 Meaning
of owner—pt 7.9
In this part:
owner, of a thing, includes a person entitled to possession
of the thing.
(1) The chief executive may seize anything in a young detainee’s
protected mail if the chief executive believes on reasonable grounds that the
thing—
(a) may physically harm the addressee or anyone else; or
(b) is a prohibited thing.
(2) The chief executive may seize other mail of a young detainee, or
anything in the mail, if the chief executive suspects on reasonable grounds that
the seizure is necessary—
(a) to stop any of the following entering or leaving a detention
place:
(i) a prohibited thing;
(ii) anything that may be used by the young detainee in a way that may
involve an offence, a behaviour breach, a risk to the personal safety of someone
else or a risk to security or good order at a detention place; or
(b) to stop correspondence that is threatening, or not in the best
interests of the young detainee, from entering or leaving a detention place;
or
(c) to stop a young detainee obtaining or buying goods without the chief
executive’s approval.
Example—correspondence not in best
interests of young detainee—par (b)
mail addressed to a young person by someone convicted of a sexual offence
against a child
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(3) The chief executive may seize a document under this section only if
the chief executive believes on reasonable grounds that the document is not
privileged.
(4) If the chief executive believes on reasonable grounds that a document
seized under subsection (3) is privileged, the chief executive must return the
document to the detainee immediately.
(5) In this section:
mail means postal mail.
protected mail means mail between a young detainee and any of
the following:
(a) a lawyer representing the young detainee;
(b) an official visitor;
(c) the director of public prosecutions;
(d) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(e) the privacy commissioner;
(f) the public advocate;
(g) the ombudsman;
(h) a person prescribed by regulation.
280 Seizing
property—general
(1) The chief executive may seize—
(a) a prohibited thing found on a person or in a person’s custody or
possession, unless the person has the written approval of the chief executive to
possess the thing; or
(b) anything found at a detention place, whether or not in a
person’s custody or possession, that the chief executive suspects on
reasonable grounds—
(i) is being used, or is intended, for the commission of an offence or a
behaviour breach; or
(ii) jeopardises, or is likely to jeopardise, security or good order at a
detention place or the safety of anyone at a detention place or
elsewhere.
(2) To remove any doubt, this section extends to anything found in a
search under this chapter.
(3) The chief executive may seize a document under this section only if
the chief executive believes on reasonable grounds that the document is not
privileged.
(1) The chief executive must prepare written notice of a seizure under
section 279 or section 280.
(2) Not later than 7 days after the day of the seizure, the chief
executive must give written notice of the seizure to—
(a) the owner of the thing seized; or
(b) if the owner cannot be identified after reasonable inquiries (given
the thing’s apparent value)—the person from whom the thing was
seized.
(3) The notice must—
(a) identify the thing seized; and
(b) outline the grounds for the seizure; and
(c) include a statement about the effect of section 282; and
(d) include anything else prescribed by regulation.
282 Forfeiture
of things seized
(1) A thing seized under section 279 (Seizing mail etc) or section 280
(Seizing property—general) is forfeited to the Territory if the chief
executive decides on reasonable grounds—
(a) that—
(i) after making reasonable inquiries (given the thing’s apparent
value), the owner of the thing cannot be found; or
(ii) after making reasonable efforts (given the thing’s apparent
value), the thing cannot be returned to the owner; or
(b) that—
(i) the thing is a prohibited thing; or
(ii) possession of the thing by a young detainee is an offence or a
behaviour breach; or
(iii) it is necessary to keep the thing to stop it being used for the
commission of an offence or a behaviour breach; or
(iv) the thing is inherently unsafe; or
(v) the thing may be used by the person in a way that may involve a risk
to the personal safety of someone else or a risk to security or good order at a
detention place.
(2) The chief executive may deal with a thing forfeited to the Territory
under this section, or dispose of it, as the chief executive considers
appropriate.
Examples
1 giving a forfeited weapon to a youth detention officer
2 dumping a forfeited thing of little value
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) However, subsection (2) is subject to any order under the Crimes
Act 1900, section 249 (Seizure of forfeited articles).
Note 1 The Crimes Act 1900 also provides for articles
forfeited under any law in force in the Territory to be seized by a member of
the police force, taken before the Magistrates Court and for the court to order
disposal of the article by the public trustee (see s 249 and s 250).
Note 2 The Uncollected Goods Act 1996 provides generally for
the disposal of uncollected goods, including goods abandoned on premises
controlled by the Territory.
283 Return
of things seized but not forfeited
(1) If a thing seized under section 279 (Seizing mail etc) or section 280
(Seizing property—general) is not forfeited, the chief executive must
return it to its owner—
(a) at the end of the 6 months after the day it was seized; or
(b) if a proceeding for an offence or a behaviour breach involving the
thing is started within the 6 months—at the end of the proceeding and any
appeal from, or review of, the proceeding.
(2) However, if the thing was being kept as evidence of an offence or a
behaviour breach and the chief executive believes on reasonable grounds that its
retention as evidence is no longer necessary, the chief executive must return it
immediately.
Chapter
8 Criminal matters—discipline at
detention places
Part
8.1 Discipline at detention
places—general
This chapter applies in relation to a behaviour breach committed, or
allegedly committed, by a young detainee.
In this chapter:
accused detainee means a young detainee charged with a
behaviour breach.
administrator means an authorised person to whom the chief
executive has delegated functions of an administrator under this
chapter.
allegation report—see section 292.
behaviour breach—see section 286.
behaviour management consequence—
(a) for part 8.3 (Dealing with minor behaviour breaches)—see section
297; and
(b) for part 8.4 (Disciplinary action—behaviour breach
charged)—see section 317.
behaviour management framework means the behaviour management
framework established under section 296.
charge means a charge under section 295.
charge notice—see section 295.
disciplinary action—see section 316.
hearing, for a review, means a hearing under part
9.3.
minor behaviour breach—see section 287.
privilege, in relation to a young detainee—see section
288.
reporting and investigation procedure, for part 8.2
(Responding to behaviour breaches), means a reporting and investigation
procedure under section 293.
review means a review under—
(a) division 8.4.2 (Internal review); or
(b) division 8.4.3 (External review of internal review
decisions).
support person—a person can be a support
person for a young detainee if—
(a) the young detainee chooses the person to assist the young detainee or
represent the young detainee’s interests; and
(b) the chief executive considers—
(i) the person is capable of assisting the young detainee or representing
the young detainee’s interests; and
(ii) it is in the young detainee’s best interests for the person to
be the young detainee’s support person.
Examples—support
people
1 the public advocate
2 a person with parental responsibility for the accused detainee
3 a close friend of the accused detainee who is capable of applying for the
review
4 a lawyer
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
286 Meaning
of behaviour breach
(1) Each of the following is a behaviour breach:
(a) contravening a direction by the chief executive under this
Act;
Note A reference to an Act includes a
reference to the statutory instruments made or in force under the Act, including
any regulation (see Legislation Act, s 104).
(b) being in a prohibited area without the chief executive’s
approval;
Note An area may be prohibited under s
146.
(c) smoking;
(d) taking (in any way) alcohol, a prohibited substance or an unauthorised
medicine into the young detainee’s body;
(e) providing a positive test sample for alcohol or a drug when directed,
under this Act, to provide a test sample;
(f) making, possessing, concealing, knowingly consuming or dealing with a
prohibited thing, without the chief executive’s approval;
(g) gambling;
(h) being disrespectful or abusive towards a youth detention officer in a
way that undermines the officer’s authority;
(i) being disrespectful or abusive towards someone in a way that is likely
to provoke a person to be violent;
(j) intentionally or recklessly engaging in conduct that endangers, or may
endanger, the health or safety of the young detainee or anyone else;
(k) fighting;
(l) assaulting someone else;
(m) theft;
(n) possessing stolen property;
(o) possessing or dealing in things without the chief executive’s
approval;
(p) intentionally or recklessly damaging or destroying property belonging
to someone else;
(q) interfering with property belonging to someone else, without approval
by the owner of the property;
(r) creating or participating in a disturbance, or other activity, likely
to endanger security or good order at a detention place;
(s) contravening a condition of a leave permit under section
240;
(t) doing anything for the purpose of escaping, or assisting a young
detainee to escape, from detention;
(u) offering, giving or taking a bribe;
(v) attempting, or assisting anyone else attempting, to commit another
behaviour breach;
(w) threatening to do anything mentioned in paragraphs (j), (k), (l), (p)
or (r);
(x) anything else prescribed by regulation.
Example—chief executive
direction—par (a)
contravening a direction by the chief executive to submit to a search under
this Act
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(2) In this section:
medicine—see the Medicines, Poisons and Therapeutic
Goods Act 2007, section 11.
prohibited substance—see the Medicines, Poisons and
Therapeutic Goods Act 2007, section 13.
unauthorised medicine—a medicine is an
unauthorised medicine for a young detainee if—
(a) the medicine is not prescribed for the young detainee; or
(b) the chief executive has not approved the use of the medicine by the
young detainee under section 186.
287 Meaning
of minor behaviour breach
A minor behaviour breach is a behaviour breach
that—
(a) is not of a serious or persistent nature; and
(b) does not involve a serious risk to the health or safety of someone
else at a detention place; and
(c) does not involve a serious risk, or serious or persistent disruption,
to the security or good order at a detention place.
A privilege, in relation to a young
detainee—
(a) is any amenity, facility or opportunity the young detainee may have
the benefit of in detention; but
(b) does not include anything that is, for this chapter, an entitlement
for the young detainee.
Examples—privileges
1 using phones, email or the internet other than for entitled
usage
2 buying non-essential goods from money in a young detainee’s trust
account
3 using a radio, television, compact disc, MP3 player or DVD player or
other electronic equipment for recreational purposes
4 pursuing hobbies and crafts
5 keeping personal property in a cell
6 accessing leave
Examples—entitlements
1 an entitlement to health care under s 108
2 things expressed in pt 6.5 (Living conditions at detention places) to be
entitlements for young detainees
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
289 Overlapping
behaviour breaches and criminal offences
(1) This section applies if a young detainee engages, or is alleged to
have engaged, in conduct that is both—
(a) a behaviour breach; and
(b) an offence (a criminal offence) against this Act or
another territory law.
(2) The young detainee must not be prosecuted for the criminal offence if
a behaviour management consequence has been imposed on the young detainee under
part 8.3 or part 8.4 because of the behaviour breach.
(3) The young detainee must not be charged with the behaviour breach under
section 295, or the charge must not be continued with under this chapter, if a
prosecution for the criminal offence has been started in a court.
(4) Disciplinary action for the behaviour breach must not be taken against
the young detainee if a court has convicted the young detainee, or the young
detainee has been found guilty, of the criminal offence.
Note For the kinds of disciplinary action that may be taken, see
s 316.
Part
8.2 Responding to behaviour
breaches
290 Who
is an investigator?
In this part:
investigator means—
(a) an authorised person to whom the chief executive has delegated
functions of an investigator under this part; or
(b) a person appointed to be an investigator under section 291.
Note A person is an authorised person for this Act if the chief
executive delegates a power under the Act to the person.
291 Appointment
of investigators
The chief executive may appoint a person to be an investigator for this
part.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
292 Report
etc by youth detention officer
(1) This section applies if a youth detention officer believes on
reasonable grounds that a young detainee has committed a behaviour
breach.
(2) The youth detention officer may do 1 or more of the following if the
person believes on reasonable grounds that it is appropriate in the
circumstances:
(a) counsel the young detainee;
(b) warn the young detainee about committing a behaviour breach;
(c) reprimand the young detainee;
(d) make a report (an allegation report) about the alleged
behaviour breach.
(3) An allegation report must be made in accordance with the reporting and
investigation procedures.
293 Reporting
and investigation procedures
(1) The chief executive must make reporting and investigation procedures,
consistent with this Act, about the making, recording and investigation of
allegation reports.
(2) Each reporting and investigation procedure is a notifiable
instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 The amendment or repeal of a reporting and investigation
procedure is also a notifiable instrument. See the Legislation Act, s 46 (Power
to make instrument includes power to amend or repeal).
(3) Without limiting subsection (1), the reporting and investigation
procedures must—
(a) require allegation reports to be made in writing and given to an
administrator; and
(b) require the administrator to whom an allegation report is given, and
any investigator who investigates the alleged behaviour breach, to be a
different person to the youth detention officer who makes the allegation report;
and
(c) require a young detainee to be told about an alleged behaviour breach
in language and a way he or she can understand; and
(d) allow a young detainee to contact 1 or 2 support people for assistance
in responding to an alleged behaviour breach; and
(e) require a young detainee to be told that he or she has the right to
contact 1 or 2 support people for assistance in responding to an alleged
behaviour breach.
294 Action
by administrator
(1) This section applies if an administrator is given an allegation report
about an alleged behaviour breach by a young detainee.
(2) The administrator—
(a) must consider the allegation report; and
(b) may arrange for an investigator to investigate the alleged behaviour
breach in accordance with the reporting and investigation procedures if the
administrator believes on reasonable grounds that it is appropriate in the
circumstances.
(3) After considering the allegation report and the report of any
investigation under subsection (2) (b), the administrator may take any further
action the administrator believes on reasonable grounds is appropriate in the
circumstances.
(4) Without limiting subsection (3), the administrator may do 1 or
more of the following if the administrator believes on reasonable grounds that
it is reasonable and proportionate in the circumstances:
(a) take no further action in relation to the report;
(b) counsel the young detainee;
(c) warn the young detainee about committing a behaviour breach;
(d) reprimand the young detainee;
(e) for a minor behaviour breach—deal with the young detainee in
accordance with part 8.3;
(f) charge the young detainee under section 295;
(g) refer the alleged behaviour breach to—
(i) the chief police officer; or
(ii) the director of public prosecutions.
(5) Before deciding what action (if any) to take in relation to a minor
behaviour breach, the administrator must review any previous minor behaviour
breaches and behaviour management consequences imposed on the young detainee.
(6) A referral under subsection (4) (g) must be in writing and accompanied
by the allegation report and any reports the administrator has of investigations
already made about the alleged behaviour breach.
To charge a young detainee with a behaviour breach, an administrator must
give the young detainee written notice (a charge notice) of the
charge, including details of the following:
(a) the behaviour breach charged;
(b) a brief statement of the conduct to which the charge applies and when,
or the period during which, it happened;
(c) the election available under section 300 to accept the disciplinary
action proposed by the administrator;
(d) the disciplinary action the administrator believes on reasonable
grounds would be appropriate if the charge were dealt with by the administrator
under section 301 (Disciplinary action by administrator);
(e) that application may be made under section 304 for review of the
charge.
Note If a form is approved under s 885 for a charge, the form must
be used.
Part
8.3 Dealing with minor behaviour
breaches
296 Behaviour
management framework
(1) The chief executive must establish a behaviour management framework
for dealing with minor behaviour breaches.
(2) The behaviour management framework is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(3) Without limiting subsection (1), the behaviour management framework
must provide for the following:
(a) any behaviour management consequences imposed on a young detainee to
be a reasonable and proportionate response to the minor behaviour breach;
(b) how privileges can be withdrawn for minor behaviour breaches;
(c) review by the chief executive(including on request by a young
detainee) of decisions to impose behaviour management consequences for minor
behaviour breaches.
297 Behaviour
management framework—behaviour management
consequences
(1) Each of the following is a behaviour management
consequence that may be imposed under the behaviour management
framework:
(a) a fine, not exceeding $25;
(b) a withdrawal of privileges, for not longer than 6 days;
(c) a requirement to make an apology to a person affected by the behaviour
breach;
(d) a requirement to perform extra chores, for not longer than
2 hours;
(e) anything prescribed by regulation to be a behaviour management
consequence for the behaviour management framework and that is
reasonable and proportionate to minor behaviour breaches.
(2) In deciding whether to impose a behaviour management consequence under
the behaviour management framework, the administrator must consider the age,
developmental capacity, rehabilitation needs and any known history of the young
detainee.
(3) The administrator may impose a behaviour management consequence if
satisfied that the consequence to be imposed is—
(a) reasonable in the circumstances; and
(b) proportionate to the circumstances and gravity of the behaviour
breach.
298 Behaviour
management framework—limits
(1) This section applies if a young detainee has been dealt with under the
behaviour management framework and behaviour management consequences totalling
any of the following have been imposed on the young detainee under the
framework:
(a) for fines—$125;
(b) for withdrawals of privileges—30 days;
(c) for requirements to perform extra chores—10 hours.
(2) The young detainee must not be dealt with under the behaviour
management framework for any subsequent minor behaviour breach.
(3) However, an administrator may take other action mentioned in section
294 (other than section 294 (4) (e)) for any subsequent minor behaviour
breaches.
Part
8.4 Disciplinary
action—behaviour breach charge
Division
8.4.1 Disciplinary action by
administrator
299 Right
to contact support person—disciplinary action by
administrator
(1) This section applies if a charge notice has been given to an accused
detainee under section 295.
(2) The accused detainee has a right to contact 1 or 2 support people to
assist the detainee with having the disciplinary charge dealt with under this
division.
(3) The chief executive must ensure that the accused detainee has access
to facilities to contact a support person as soon as practicable.
300 Behaviour
breach admitted by accused detainee
(1) An accused detainee may elect to have a disciplinary charge against
the accused detainee dealt with under this division by giving the administrator
a written notice in which the accused detainee—
(a) admits the behaviour breach charged; and
(b) accepts the proposed disciplinary action stated in the charge
notice.
Example—election
a signed admission and acceptance on the charge notice
Note 1 If a form is approved under s 885 for an election under this
section, the form must be used.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The election must be given to the administrator—
(a) not later 48 hours after the administrator gives the accused detainee
the charge notice; or
(b) within any extended period allowed under subsection (3).
(3) On written application by the accused detainee, the administrator may
extend the period within which the election must be made if the administrator
believes on reasonable grounds that it is appropriate to extend the
period.
(4) The administrator must give the accused detainee written notice of a
decision under subsection (3).
301 Disciplinary
action by administrator
(1) This section applies if—
(a) a charge notice has been given to an accused detainee; and
(b) the accused detainee—
(i) makes an election under section 300; or
(ii) does not make an election under section 300, or apply for review of
the charge, within the period allowed.
(2) The administrator may, without further investigation or inquiry, take
the disciplinary action stated in the charge notice if the administrator
believes on reasonable grounds that the accused detainee understands the
proposed action.
(3) If the administrator decides to take the disciplinary action, the
administrator must give the accused detainee written notice of the
decision.
(4) The disciplinary action must be taken in accordance with
division 8.4.4 (Disciplinary action generally).
Division
8.4.2 Internal
review
302 Meaning
of review officer—div 8.4.2
In this division:
review officer means an authorised person to whom the chief
executive has delegated functions of a review officer under this
division.
303 Right
to contact support person—internal review
(1) This section applies if a charge notice has been given to an accused
detainee under section 295.
(2) The accused detainee has a right to contact 1 or 2 support people to
assist the detainee to apply for review of the charge under this
division.
(3) The chief executive must ensure that the accused detainee has access
to facilities—
(a) to contact a support person as soon as practicable; and
(b) to consult with the support person.
304 Application
for internal review
(1) An accused detainee may apply for review of the charge under this
division.
(2) The application must be given to the administrator—
(a) not later than the day after the day the administrator gives the
accused detainee the charge notice under section 295; or
(b) within any extended period allowed under subsection (3).
(3) On written application by the accused detainee, the administrator may
extend the period for making the application if the administrator believes on
reasonable grounds that it is appropriate to extend the period.
Note The administrator may extend the period for making the
application after the period given in the notice has expired (see Legislation
Act, s 151C).
(4) The administrator must give the accused detainee written notice of a
decision under subsection (3) to extend the period.
305 Internal
review of charge
(1) If an application for review is given to the administrator under
section 304, the administrator must arrange for a review officer to conduct a
review into the behaviour breach charged in the charge notice.
(2) An authorised person must not exercise any function of a review
officer under this division in relation to the charge if the authorised
person—
(a) made an allegation report or carried out any investigation in relation
to the alleged behaviour breach to which the charge relates; or
(b) charged the young detainee under section 295.
(3) Chapter 9 (Criminal matters—conduct of disciplinary reviews)
applies, with any changes prescribed by regulation, in relation to a review
under this division.
306 Review
officer’s powers after internal review
(1) This section applies if a review officer has completed a review under
section 305.
(2) If the review officer is satisfied on the balance of probabilities
that a behaviour breach charged has been proven, the review officer may take
disciplinary action against the accused detainee in accordance with division
8.4.4
(3) The review officer must dismiss the charge—
(a) if not satisfied on the balance of probabilities that the behaviour
breach charged has been proven; or
(b) if satisfied on reasonable grounds that it would otherwise be
appropriate to do so.
(4) If the review officer believes on reasonable grounds that it is
necessary or appropriate to do so, the review officer may refer the charge
to—
(a) the chief police officer; or
(b) the director of public prosecutions.
(5) The review officer must give the accused detainee prompt written
notice of the review officer’s decision under this section,
including—
(a) a statement of the reasons for the decision; and
(b) a statement that the accused detainee has a right to apply for review
of the decision under division 8.4.3 (External review of internal review
decisions); and
(c) a statement about the effect of section 309.
Note 1 If a form is approved under s 885 for the notice, the form
must be used.
Note 2 For the meaning of a statement of reasons, see the
Legislation Act, s 179.
Division
8.4.3 External review of internal
review decisions
307 Meaning
of external reviewer—div 8.4.3
In this division:
external reviewer means a person appointed as an external
reviewer under section 308.
308 Appointment
of external reviewers
(1) The Minister must appoint at least 1 external reviewer.
(2) A person may be appointed as an external reviewer only if the person
is a magistrate and consents, in writing, to the appointment.
(3) The Magistrates Court Act 1930, section 7G (Magistrates
not to do other work) does not apply to the appointment of a magistrate as an
external reviewer.
Note For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
(4) The Legislation Act, division 19.3.3 (Appointments—Assembly
consultation) does not apply to the appointment of an external
reviewer.
(5) An appointment is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
309 Right
to contact support person—external review
(1) This section applies if a decision under section 306 (Review
officer’s powers after internal review) has been made in relation to an
accused detainee.
(2) The accused detainee has a right to contact 1 or 2 support people to
assist the detainee to apply for review of the decision under this
division.
(3) The chief executive must ensure that the accused detainee has access
to facilities—
(a) to contact a support person as soon as practicable; and
(b) to consult with the support person.
310 Application
for external review
(1) An accused detainee may apply to an external reviewer for review of a
decision made under section 306 (2) (Review officer’s powers
after internal review) in relation to the accused detainee.
Example—application for
review
a signed application on the review officer’s notice under s
306
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The application must be made not later than 7 days after the day the
accused detainee is given notice of the decision under section 306.
(3) Subject to any decision by the external reviewer under section 313,
the making of the application does not affect the taking of disciplinary action
under the decision under review.
311 External
review of charge
(1) On application under section 310, an external reviewer
must—
(a) review a decision of a review officer made under section 306;
or
(b) refuse to review the decision.
(2) Chapter 9 (Criminal matters—conduct of disciplinary reviews)
applies, with any changes prescribed by regulation, in relation to a review
under this division.
(1) This section applies if, under section 311, an external reviewer
refuses to review a decision made under section 306 in relation to an accused
detainee.
(2) The external reviewer must give the accused detainee, and any support
person of the accused detainee about whom the external reviewer has notice,
prompt written notice of the refusal, including—
(a) a statement of the reasons for the refusal; and
(b) notice that a person aggrieved by the refusal may apply for review of
the refusal under the Administrative Decisions (Judicial Review) Act
1989.
Note 1 If a form is approved under s 885 for the notice, the form
must be used.
Note 2 For the meaning of a statement of reasons, see the
Legislation Act, s 179.
Note 3 Under the Administrative Decisions (Judicial Review) Act
1989, a person aggrieved by an administrative decision made under an
enactment may apply to the Supreme Court for review of the decision. Subject to
any order of the Court, the making of the application does not affect the
operation of the decision or prevent its implementation (see
s 16).
313 External
reviewer’s powers after external review
(1) After completing a review under section 311, the external reviewer
may—
(a) confirm the decision under review; or
(b) exercise any function of a review officer under 306 (Review
officer’s powers after internal review) in relation to the accused
detainee, either by—
(i) amending the decision under review; or
(ii) setting aside the decision under review and making a decision in
substitution for the decision set aside.
(2) The external reviewer must give prompt written notice of the external
reviewer’s decision under this section to—
(a) the accused detainee; and
(b) any support person of the accused detainee about whom the external
reviewer has notice; and
(c) the chief executive.
(3) The notice must include—
(a) a statement of the reasons for the decision; and
(b) notice that a person aggrieved by the decision may apply for review of
the decision under the Administrative Decisions (Judicial Review) Act
1989.
Note 1 If a form is approved under s 885 for the notice, the form
must be used.
Note 2 For the meaning of a statement of reasons, see the
Legislation Act, s 179.
Note 3 Under the Administrative Decisions (Judicial Review) Act
1989, a person aggrieved by an administrative decision made under an
enactment may apply to the Supreme Court for review of the decision. Subject to
any order of the Court, the making of the application does not affect the
operation of the decision or prevent its implementation (see
s 16).
(4) If the external reviewer’s decision reduces or sets aside a fine
imposed for the behaviour breach, the chief executive must credit to the accused
detainee’s trust account any amount deducted from the account for payment
of the fine.
(5) If the external reviewer’s decision reduces or sets aside any
other behaviour management consequence imposed for the behaviour breach, the
chief executive must take steps, in consultation with the accused detainee, to
provide a reasonable remedy to the accused detainee.
Division
8.4.4 Disciplinary action
generally
314 Application—div
8.4.4
This division applies to a young detainee against whom disciplinary action
may be taken under this part.
315 Meaning
of relevant presiding officer—div 8.4.4
In this division:
relevant presiding officer means—
(a) an administrator under division 8.4.1 (Disciplinary action by
administrator); or
(b) a review officer under division 8.4.2 (Internal review); or
(c) an external reviewer under division 8.4.3 (External review of internal
review decisions).
316 Disciplinary
action by relevant presiding officer
(1) A relevant presiding officer may do 1 or more of the following (each
of which is disciplinary action) in relation to a young
detainee:
(a) warn the young detainee about committing a behaviour breach;
(b) reprimand the young detainee;
(c) impose a behaviour management consequence, or a combination of
behaviour management consequences, on the young detainee.
(2) In deciding whether to impose a behaviour management consequence, the
relevant presiding officer must consider the age, developmental capacity,
rehabilitation needs and any known history of the young detainee.
(3) The relevant presiding officer may impose a behaviour management
consequence if satisfied that the consequence to be imposed is—
(a) reasonable in the circumstances; and
(b) proportionate to the circumstances and gravity of the
behaviour.
317 Disciplinary
action—behaviour management consequences
Each of the following is a behaviour management consequence
that may be imposed under this part:
(a) a fine, not exceeding $250;
(b) a withdrawal of privileges, for not longer than 60 days;
(c) a requirement to make an apology to a person affected by the behaviour
breach;
(d) a requirement to perform extra chores, for not longer than
20 hours;
(e) anything prescribed by regulation to be a behaviour management
consequence and that is reasonable and proportionate to behaviour
breaches.
318 Maximum
behaviour management consequences
(1) This section applies if—
(a) a young detainee is charged with 2 or more behaviour breaches;
and
(b) the charges arise out of the same conduct.
(2) The total of the behaviour management consequences imposed for the
breaches must not, for any particular kind of consequence, be more than the
maximum penalty that may be imposed for any 1 of the breaches.
319 Privileges
and entitlements—impact of discipline
To remove any doubt—
(a) anything expressed in part 6.5 (Living conditions at detention places)
to be an entitlement for this chapter is not affected by anything that happens
under this chapter, including disciplinary action; and
(b) anything else mentioned in part 6.5 is, for this chapter, a
privilege.
Note Records must be kept of disciplinary action taken against young
detainees (see Territory Records Act 2002).
Chapter
9 Criminal matters—conduct of
disciplinary reviews
Part
9.1 Conduct of disciplinary
review—general
This chapter applies to a review under—
(a) division 8.4.2 (Internal review); or
(b) division 8.4.3 (External review of internal review
decisions).
Note This chapter also applies to a review under s
219 (External review of segregation directions) (see s s
219 (2)).
In this chapter:
review officer—
(a) for a review under division 8.4.2—means a review officer under
that division; and
(b) for a review under division 8.4.3—means an external reviewer
under that division.
support person—see section 285.
Part
9.2 Disciplinary review
procedures
322 Nature
of disciplinary reviews
(1) To remove any doubt, a review is an administrative process.
(2) At a review—
(a) the rules of natural justice apply; and
(b) the laws of evidence do not apply; and
(c) evidence must not be given on oath or by affidavit; and
(d) the question whether a young detainee has committed a behaviour breach
must be decided on the balance of probabilities.
323 Notice
of disciplinary review etc
(1) The review officer for a review in relation to an accused detainee
must give written notice of the review to the accused detainee and the chief
executive.
(2) The notice must include the following:
(a) a statement about where and when the review is to start;
(b) details of the disciplinary charge or disciplinary action to which the
review relates;
(c) a statement about the effect of section 322;
(d) a statement about the effect of subsections (3) to (5);
(e) a statement to the effect that the review officer may hold a hearing
for the review in accordance with part 9.3 (Disciplinary hearing
procedures);
(f) the closing date for submissions by the accused detainee.
(3) The accused detainee may make submissions to the review officer for
the review in any form acceptable to the review officer.
Example—acceptable
form
an audio recording or a document written for an accused detainee
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) The chief executive must—
(a) offer to provide reasonable assistance to the accused detainee to put
the submissions in a form acceptable to the review officer; and
(b) tell the accused detainee about the assistance he or she is entitled
to under subsection (5).
(5) The accused detainee is entitled to reasonable assistance from 1 or
2 support people for the purpose of preparing submissions.
(6) The review officer must consider any submission given to the review
officer by the accused detainee before the closing date for submissions stated
in the notice of the review given to the accused detainee.
324 Conduct
of disciplinary reviews
(1) A review must be conducted with as little formality and technicality,
and as quickly as the requirements of this Act and a proper consideration of the
charge allow.
(2) The review officer may hold a hearing for the review.
(3) A hearing for a review must be held in accordance with part
9.3.
(4) Proceedings at a review are not open to the public.
(5) A decision of the review officer at a review is not invalid only
because of any informality or lack of form.
Note However, see s 330 (5) and s 331 (2) (b) for who may be
present, be heard or make submissions at disciplinary hearings.
325 Review
officer may require official reports
(1) For a review, the review officer may, by written notice given to any
of the following, require the person to promptly give the review officer a
written report about the accused detainee:
(a) the chief executive;
(b) the director of public prosecutions;
(c) a public servant.
(2) The person given the notice must comply with it.
326 Review
officer may require information and documents
(1) For a review, the review officer may, by written notice given to a
person, require the person—
(a) to provide stated information to the review officer relevant to the
review; or
(b) to produce to the review officer a stated document or thing relevant
to the review.
(2) This section does not require a person to give information, or produce
a document or other thing, to the review officer if the Minister certifies in
writing that giving the information, or producing the document or other
thing—
(a) may endanger a young detainee or anyone else; or
(b) is contrary to the public interest.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
327 Possession
of review documents etc
The review officer may have possession of a document or other thing
produced to the review officer for a review for as long as the review officer
considers necessary for the review.
The review officer for a review must keep a written record of proceedings
at the review.
Part
9.3 Disciplinary hearing
procedures
329 Notice
of disciplinary hearing
(1) The review officer for a review in relation to an accused detainee
must give written notice of a hearing for the review to the accused detainee and
the chief executive.
(2) The notice must include—
(a) a statement about where and when the hearing is to be held;
and
(b) a statement about the accused detainee’s entitlements under
section 330 and section 331.
(3) If practicable, the hearing must be held at the detention place where
the accused detainee is detained.
330 Review
officer’s powers at review
(1) For a hearing for a review in relation to an accused detainee, the
review officer may, by written notice given to the accused detainee or anyone
else, require the person to appear before the review officer, at a stated time
and place, to do either or both of the following:
(a) answer questions;
(b) produce a stated document or other thing relevant to the
review.
(2) A person is taken to have complied with a notice under
subsection (1) (b) if the person gives the document or other thing to the
review officer before the time stated in the notice for its
production.
(3) The review officer at a hearing for a review may require the accused
detainee, or a witness, appearing before the review officer to do 1 or more
of the following:
(a) answer a question relevant to the review;
(b) produce a document or other thing relevant to the review.
(4) The review officer at the hearing may disallow a question put to a
person if the presiding review officer considers the question—
(a) is unfair, unduly prejudicial or vexatious; or
(b) involves an abuse of the review process.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against selfincrimination and client legal privilege.
(5) The review officer may allow a youth detention officer or anyone else
to be present, and to be heard, at a disciplinary hearing.
Examples—other people who may be
allowed to be present
1 a support person
2 another detainee
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
331 Rights
of accused detainee at disciplinary hearing
(1) The accused detainee is entitled to be present at a hearing for a
review in relation to the accused detainee.
Note However, the accused detainee may be excluded (see s 332) and
the hearing may be conducted if the accused detainee fails to attend (see
s 333).
(2) If the accused detainee appears at a hearing for a review in relation
to the accused detainee, the accused detainee is entitled to—
(a) be heard, examine and cross-examine witnesses and make submissions for
the review; and
(b) have a support person or lawyer present to make submissions on the
accused detainee’s behalf.
332 Exclusion
of accused detainee from hearing
The review officer may, by written order, exclude the accused detainee from
a hearing for the review if the accused detainee, without reasonable
excuse—
(a) unreasonably interrupts, interferes with or obstructs the hearing;
or
(b) contravenes a reasonable direction by the review officer about the
conduct of hearing.
333 Hearing
in accused detainee’s absence
If the accused detainee fails without reasonable excuse to attend a hearing
for the review, the review officer may conduct the hearing, and make a decision
on the charge, in the accused detainee’s absence.
334 Appearance
at disciplinary hearing by audiovisual or audio link
(1) This section applies if, in relation to a hearing for a review, or
part of the hearing, the review officer has given a direction under the
following sections of the Evidence (Miscellaneous Provisions)
Act 1991:
(a) section 20 (Territory courts may take evidence and submissions
from outside ACT);
(b) section 32 (Use of link in proceedings).
(2) A person may appear and take part in the hearing in accordance with
the direction, if the person—
(a) is required or entitled to appear personally, whether as the accused
detainee or as a witness; or
(b) is entitled to appear for someone else.
(3) A person who appears at the hearing under this section is taken to be
before the review officer.
Chapter
10 Care and
protection—general
Part
10.1 Application of care and
protection chapters
Note to pt 10.1
Under s 6, the functions under this Act may be exercised for a child
or young person—
(a) who ordinarily lives in the ACT; or
(b) who does not ordinarily live in the ACT, but who is in the ACT;
or
(c) about whom a report is made under s 353 (Voluntary reporting of
abuse and neglect) or s 355 (Offence—mandatory reporting of abuse)
arising from something happening in the ACT.
335 What
are the care and protection chapters?
In this Act:
care and protection chapters means the following
chapters:
(a) Chapter 10 (Care and protection—general);
(b) Chapter 11 (Care and protection—reporting, investigating and
appraising abuse and neglect);
(c) Chapter 12 (Care and protection—voluntary agreements to transfer
or share parental responsibility);
(d) Chapter 13 (Care and protection and therapeutic
protection—emergency situations);
(e) Chapter 14 (Care and protection—care and protection
orders);
(f) Chapter 15 (Care and Protection—chief executive has aspect of
parental responsibility);
(g) Chapter 16 (Care and protection—therapeutic protection of
children and young people);
(h) Chapter 17 (Care and protection—interstate transfer of orders
and proceedings);
(i) Chapter 18 (Care and protection—police assistance);
(j) Chapter 19 (Care and protection—provisions applying to all
proceedings under care and protection chapters).
336 Age—proof
of age to be sought before action taken
If the Childrens Court, the chief executive or a police officer intends to
deal with a person under the care and protection chapters as a child or young
person, the Childrens Court, chief executive or police officer must make
reasonable inquiries to find out the age of the person before dealing with the
person as a child or young person.
337 Age—application
of care and protection chapters if no proof of age
(1) This section applies if—
(a) the Childrens Court, chief executive or police officer is unable after
reasonable inquiry to find out a person’s age; and
(b) the person appears, on reasonable grounds, to the Childrens Court, the
chief executive or a police officer to be a child or young person.
(2) The person may be dealt with under the care and protection chapters as
if the person were a child or young person and the care and protection chapters
applies to the person as if a reference to a child or young person included a
reference to the person.
338 Age—care
and protection chapters stop applying if person discovered to be
adult
(1) This section applies if the Childrens Court, the chief executive or a
police officer—
(a) has dealt with a person as a child or young person; and
(b) finds out that the person is not a child or young person.
(2) Any order or agreement under the care and protection chapters applying
to the person stops applying to the person.
(3) No further proceeding may be taken under the care and protection
chapters in relation to the person.
(4) If the person—
(a) is in a hospital or place of care under a provision of the care and
protection chapters—the provision ceases to apply to the person and the
person must be released; and
(b) is being confined in a therapeutic protection place under a
therapeutic protection order—the person must be released.
Note An official, or anyone engaging in conduct under the direction
of an official, is not civilly liable for conduct engaged in honestly and
without recklessness in the exercise of a function under this Act or in the
reasonable belief that the conduct was in the exercise of a function under this
Act. Any liability that would attach to an official attaches instead to the
Territory (see s 877).
339 Care
and protection chapters stop applying when young person becomes
adult
(1) The care and protection chapters stop applying to a child or young
person when the child or young person becomes an adult.
(2) Any order or agreement under the care and protection chapters applying
to the child or young person stops applying to the child or young person when
the child or young person becomes an adult.
(3) A young person who is confined in a therapeutic protection place under
a therapeutic protection order must be released immediately the young person
becomes an adult.
(4) However, this section does not require the release of a person who has
been—
(a) convicted of an offence and, for the conviction, is detained under an
order or other decision of a court, including a court of a State; or
(b) charged with an offence and is detained in relation to the
charge.
Part
10.2 Important concepts—care and
protection chapters
340 Definitions—care
and protection chapters
(1) In this Act:
abuse, of a child or young person—see
section 341.
care and protection appraisal—see
section 365.
care and protection assessment—see section
366.
care and protection principles—see
section 349.
contact, with a person—see section 347.
family group conference—see section 75.
in need of care and protection, for a child or young
person—see section 344.
neglect, of a child or young person—see
section 342.
(2) In the care and protection chapters:
at risk of abuse or neglect—see
section 343.
former caregiver, for a child or young person—see
section 346.
party, for an application—see
section 699.
significant harm includes a single instance of significant
harm or multiple instances of harm that together make up significant
harm.
In this Act:
abuse, of a child or young person, means—
(a) physical abuse; or
(b) sexual abuse; or
(c) emotional abuse (including psychological abuse) if the child or young
person has experienced the abuse or is experiencing the abuse in a way that has
caused or is causing significant harm to his or her wellbeing or development;
or
(d) emotional abuse (including psychological abuse) if—
(i) the child or young person has seen or heard the physical, sexual or
psychological abuse of a person with whom the child or young person has a
domestic relationship, the exposure to which has caused or is causing
significant harm to the wellbeing or development of the child or young person;
or
(ii) if the child or young person has been put at risk of seeing or
hearing abuse mentioned in subparagraph (i), the exposure to which would
cause significant harm to the wellbeing or development of the child or young
person.
In this Act:
neglect, of a child or a young person, means a failure to
provide the child or young person with a necessity of life if the failure has
caused or is causing significant harm to the wellbeing or development of the
child or young person.
Examples—necessities of
life
1 food
2 shelter
3 clothing
4 health care treatment
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
343 When
are children and young people at risk of abuse or
neglect?
For the care and protection chapters, a child or young person is
at risk of abuse or neglect if, on the balance of
probabilities, there is a significant risk of the child or young person being
abused or neglected.
Examples—when a child is at risk of
abuse or neglect
1 Jane is 3 months old and the chief executive has already received 5
reports about her. Jane’s parents are long-term drug users and Jane was
born with neonatal withdrawal syndrome. Jane’s parents have agreed to
work with the chief executive to address their drug use. However, they have not
actually made the changes they agreed to make. Jane’s parents do not have
contact with extended family and Jane is not regularly seen by any health
professionals or other community support people.
2 Michael is 7 years old and in the full-time care of his mother. He has
never had any contact with his father. Michael’s mother has a mental
illness characterised by episodes of psychosis. When Michael’s mother has
been unwell, she has locked Michael and herself in the home for weeks at a time.
Michael’s mother attempted suicide by driving off a bridge with Michael in
the car.
3 Tom is 9 years old and is in the sole care of his father. Since Tom was
6 years old, the chief executive has received reports that Tom’s
father calls him derogatory names and yells at him, often in the presence of
other people. Tom’s school counsellor reports that Tom appears anxious,
is fearful of loud noises in the school environment and regularly cries. Tom is
assessed as being at risk of childhood depression by the school counsellor.
4 Amy is 13 years old and regularly goes missing from home to avoid the
constant fighting between her mother and stepfather. Amy is engaging in
indiscriminate sexual activity and regularly consumes alcohol and illicit drugs
which she pays for through prostitution. Amy has intentionally overdosed on
medication 3 times and each overdose has required medical treatment.
Amy’s parents consider that she is now making her own choices and there is
nothing they can do to help her.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
344 When
are children and young people in need of care and
protection?
(1) For the care and protection chapters, a child or young person is
in need of care and protection if—
(a) the child or young person—
(i) has been abused or neglected; or
(ii) is being abused or neglected; or
(iii) is at risk of abuse or neglect; and
(b) no-one with parental responsibility for the child or young person is
willing and able to protect the child or young person from the abuse or neglect
or the risk of abuse or neglect.
(2) Without limiting subsection (1), a child or young person is in need of
care and protection if—
(a) there is a serious or persistent conflict between the child or young
person and the people with parental responsibility for him or her (other than
the chief executive) to the extent that the care arrangements for the child or
young person are, or are likely to be, seriously disrupted; or
(b) the people with parental responsibility for the child or young person
are dead, have abandoned the child or young person or cannot be found after
reasonable inquiry; or
(c) the people with parental responsibility for the child or young person
are sexually or financially exploiting the child or young person or not willing
and able to keep him or her from being sexually or financially
exploited.
345 Incident
need not have happened in ACT
(1) This section applies if a person believes that a child or young person
is in need of care and protection under section 344 because the child or
young person—
(a) has been abused or neglected; or
(b) is being abused or neglected; or
(c) is at risk of abuse or neglect.
(2) It does not matter whether conduct giving rise to the belief happened
completely or partly outside the ACT.
346 Who
is a former caregiver?
(1) In the care and protection chapters:
former caregiver means—
(a) for a child or young person for whom it is proposed to make a
voluntary care agreement—the person who is providing care for the child or
young person when the agreement is proposed; or
(b) for any other child or young person—a person who was providing
care for the child or young person immediately before parental responsibility
for the child or young person was transferred to the chief executive or someone
else by order of the Childrens Court or operation of this Act, whether or not
the person had that aspect of parental responsibility for the child or young
person at that time.
(2) However, former caregiver does not include a person
providing care for the child or young person—
(a) at a childcare centre, under a family day care scheme or otherwise for
reward; or
(b) if the person provides care on a casual basis and is not a family
member.
347 What
is contact with a person?
In this Act:
contact, with a person, means direct or indirect contact with
the person.
Examples—direct
contact
physical or face to face contact with the person
Examples—indirect
contact
contact by an agent, by telephone or letter or by giving the person
something
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
10.3 Principles and
considerations—care and protection chapters
Notes to pt 10.3
In making a decision under the care and protection chapters for a child or
young person, the decision-maker must regard the best interests of the child or
young person as the paramount consideration (see s 8).
In making a decision under the care and protection chapters otherwise than
in relation to a particular child or young person, the decision-maker must
consider the best interests of children and young people
(see s 8).
348 What
is in best interests of child or young person?
(1) For the care and protection chapters, in deciding what is in the best
interests of a child or young person, a decision-maker must consider each of the
following matters that are relevant to the child or young person:
(a) the need to ensure that the child or young person is not at risk of
abuse or neglect;
(b) any views or wishes expressed by the child or young person;
(c) the nature of the child’s or young person’s relationship
with each parent and anyone else;
(d) the likely effect on the child or young person of changes to the
child’s or young person’s circumstances, including separation from a
parent or anyone else with whom the child has been living;
(e) the practicalities of the child or young person maintaining contact
with each parent and anyone else with whom the child or young person has been
living or with whom the child or young person has been having substantial
contact;
(f) the capacity of the child’s or young person’s parents, or
anyone else, to provide for the child’s or young person’s needs
including emotional and intellectual needs;
(g) for an Aboriginal or Torres Strait Islander child or young
person—that it is a high priority to protect and promote the child’s
or young person’s cultural and spiritual identity and development by,
wherever possible, maintaining and building the child’s or young
person’s connections to family, community and culture;
(h) that it is important for the child or young person to have settled,
stable and permanent living arrangements;
(i) for decisions about placement of a child or young person—the
need to ensure that the earliest possible decisions are made about a safe,
supportive and stable placement;
(j) the attitude to the child or young person, and to parental
responsibilities, demonstrated by each of the child’s or young
person’s parents or anyone else;
(k) any abuse or neglect of the child or young person, or a family member
of the child or young person;
(l) any court order that applies to the child or young person, or a family
member of the child or young person.
(2) For the care and protection chapters, in deciding what is in the best
interests of a child or young person, a decision-maker may also consider any
other fact or circumstance the decision-maker considers relevant.
349 Care
and protection principles
(1) In making a decision under the care and protection chapters in
relation to a child or young person, a decision-maker must apply the following
principles (the care and protection principles) except when it is,
or would be, contrary to the best interests of a child or young
person—
(a) the primary responsibility for providing care and protection for the
child or young person lies with the child’s or young person’s
parents and other family members;
(b) priority must be given to supporting the child’s or young
person’s parents and other family members to provide for the wellbeing,
care and protection of the child or young person;
(c) if the child or young person does not live with his or her family
because of the operation of this Act—contact with his or her family, and
significant people, must be encouraged, if practicable and
appropriate;
(d) if the child or young person is in need of care and protection and the
child’s or young person’s parents and other family members are
unwilling or unable to provide the child or young person with adequate care and
protection (whether temporarily or permanently)—it is the responsibility
of the government to share or take over their responsibility;
(e) if the child or young person does not live with the child’s or
young person’s parents because of the operation of this Act—the
safety and wellbeing of the child are more important than the interests of the
parents;
(f) a court should make an order for a child or young person only if the
court considers that making the order would be better for the child or young
person than making no order at all.
(2) The care and protection principles must be applied in addition to the
principles under section 9 (Principles applying to Act) and section 10
(Aboriginal and Torres Strait Islander children and young people
principle).
Note The Maori children and young people principle may also apply
if an order or proceeding is transferred to the ACT from New Zealand
(see s 677).
350 Helping
families understand care and protection procedures
(1) A decision-maker making a decision under the care and protection
chapters in relation to a child or young person must endeavour to ensure that
the relevant people for the decision—
(a) understand what the decision is going to be about; and
(b) understand the decision-making process; and
(c) know that the child or young person, and people with parental
responsibility for the child or young person, may take part in the
decision-making process and have their views and wishes heard; and
(d) are informed of, and understand, the decision.
Note 1 If a child or young person is the subject of a proceeding
under this Act, the chief executive must give the child or young person
sufficient information about the proceeding, in language and a way that the
child or young person can understand, to allow the child or young person to take
part fully in the proceeding (see Court Procedures Act 2004, s 74A
(Participation of children and young people in proceedings)).
Note 2 If the decision-maker is a court, the court must also
endeavour to ensure that the child or young person, and any other party present
at the hearing of the proceeding, understands the nature and purpose of the
proceeding and any orders and knows of their appeal rights (see Court
Procedures Act 2004, s 74B (Court must ensure children and young people
etc understand proceedings).
(2) The decision-maker must give the relevant people for the decision
sufficient information about the decision-making process, in language and a way
that they can understand, to allow the child or young person, and people with
parental responsibility for the child or young person to take part fully in the
decision-making process.
(3) In this section:
relevant people, for a decision in relation to a child or
young person, means—
(a) the child or young person or, if the child is represented, the
representative of the child or young person; and
Note Representation of children and
young people is dealt with in the Court Procedures Act 2004, pt 7A
(Procedural provisions—proceedings involving children).
(b) each person with parental responsibility for the child or young
person.
Note 1 A child or young person has a right to take part in a
proceeding under this Act in relation to the child or young person
(see Court Procedures Act 2004, s 74A (Participation of
children and young people in proceedings)).
Note 2 A court must also take steps to ensure that the child or
young person and other people understand proceedings etc (see Court
Procedures Act 2004, s 74B (Court must ensure children and young
people etc understand proceedings)).
351 Views
and wishes of children and young people
(1) A decision-maker making a decision in relation to a child or young
person under the care and protection chapters must give the child or young
person a reasonable opportunity to express his or her views and wishes
personally to the decision-maker, unless the decision-maker is satisfied that
the child or young person does not have sufficient developmental capacity to
express his or her views or wishes.
(2) A decision-maker may find out the views and wishes of a child or young
person—
(a) by having regard to—
(i) anything said personally by the child or young person to the
decision-maker; or
(ii) anything said by a representative of the child or young person about
the child’s or young person’s views or wishes; or
Note Representation of children and young people is dealt with in
the Court Procedures Act 2004, pt 7A (Procedural
provisions—proceedings involving children).
(iii) anything about the child’s or young person’s views or
wishes contained in a report given to the decision-maker; or
(b) in any other way the decision-maker considers appropriate.
(3) A decision-maker must not require a child or young person to express
the child’s or young person’s views or wishes about
anything.
Chapter
11 Care and
protection—reporting, investigating and appraising abuse and
neglect
Part
11.1 Care and
protection—reporting abuse and neglect
Division
11.1.1 Definitions
In this Act:
child concern report means a voluntary report or a mandatory
report.
mandatory report—see section 355.
prenatal report—see section 361.
voluntary report—see section 353.
Division
11.1.2 Reporting abuse and neglect of
children and young people
353 Voluntary
reporting of abuse and neglect
(1) This section applies if a person believes or suspects that a child or
young person—
(a) is being abused; or
(b) is being neglected; or
(c) is at risk of abuse or neglect.
(2) The person may report (a voluntary report) the belief or
suspicion, and the reasons for the belief or suspicion, to the chief
executive.
Note 1 A person who gives information honestly and without
recklessness under this section does not breach professional ethics and is
protected from civil liability (see s 873).
Note 2 Giving false or misleading information to the chief executive
is an offence (see Criminal Code, s 338).
354 Offence—false
or misleading voluntary report
A person commits an offence if—
(a) the person makes a voluntary report; and
(b) the report contains information or allegations that are false or
misleading in a material particular; and
(c) the person knows that the information or allegations—
(i) are false or misleading in a material particular; or
(ii) omit anything without which the information or allegations are false
or misleading in a material particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
355 Offence—mandatory
reporting of abuse
(1) A person commits an offence if—
(a) the person is a mandated reporter; and
(b) the person is an adult; and
(c) the person believes on reasonable grounds that a child or young person
has experienced, or is experiencing—
(i) sexual abuse; or
(ii) non-accidental physical injury; and
(d) the person’s reasons for the belief arise from information
obtained by the person during the course of, or because of, the person’s
work (whether paid or unpaid); and
(e) the person does not, as soon as practicable after forming the belief,
report (a mandatory report) to the chief
executive—
(i) the child’s or young person’s name or description;
and
(ii) the reasons for the person’s belief.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note 1 A person who gives information honestly and without
recklessness under this section does not breach professional ethics and is
protected from civil liability (see s 873).
Note 2 Giving false or misleading information to the chief executive
is an offence (see Criminal Code, s 338).
(2) In this section:
mandated reporter—each of the following people is a
mandated reporter:
(a) a doctor;
(b) a dentist;
(c) a nurse;
(d) an enrolled nurse;
(e) a midwife;
Note Doctor,
dentist, nurse, enrolled nurse and
midwife are defined in the Legislation Act, dict, pt
1.
(f) a teacher at a school;
(g) a person providing education to a child or young person who is
registered, or provisionally registered, for home education under the
Education Act 2004;
(h) a police officer;
(i) a person employed to counsel children or young people at a
school;
(j) a person caring for a child at a childcare centre;
(k) a person coordinating or monitoring home-based care for a family day
care scheme proprietor;
(l) a public servant who, in the course of employment as a public servant,
works with, or provides services personally to, children and young people or
families;
(m) the public advocate;
(n) an official visitor;
(o) a person who, in the course of the person’s employment, has
contact with or provides services to children, young people and their families
and is prescribed by regulation.
person caring for a child at a childcare centre includes a
childcare assistant or aide caring for a child at the childcare centre if the
assistant or aide is in paid employment at the childcare centre, but does not
include anyone caring for a child as an unpaid volunteer.
teacher, at a school, includes a teacher’s assistant or
aide if the assistant or aide is in paid employment at the school.
356 Mandatory
reporting—exceptions
(1) Section 355 does not apply to a person if the person believes on
reasonable grounds that—
(a) someone else has made a report to the chief executive about the same
child or young person in relation to the same abuse or neglect; and
(b) the other person has reported the same reasons for their belief as the
person has for their belief.
(2) Section 355 (1) (c) (ii) does not apply to a person if
the person believes on reasonable grounds that—
(a) the child or young person (the injured person) has
experienced, or is experiencing, non-accidental physical injury caused by
another child or young person; and
(b) a person with parental responsibility for the injured person is
willing and able to protect the injured person from further injury.
Example—par (b)
A child is injured during a fight at school. The child’s teacher
believes that a person with parental responsibility for the child is willing and
able to protect the child from further injury because the person comes to the
school to discuss strategies for preventing further fights.
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
357 Offence—false
or misleading mandatory report
A person commits an offence if—
(a) the person makes a mandatory report; and
(b) the report contains information or allegations that are false or
misleading in a material particular; and
(c) the person knows that the information or allegations—
(i) are false or misleading in a material particular; or
(ii) omit anything without which the information or allegations are false
or misleading in a material particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
358 Reports
made to public advocate
(1) This section applies if—
(a) a person believes or suspects that a child or young
person—
(i) is being abused; or
(ii) is being neglected; or
(iii) is at risk of abuse or neglect; and
(b) the person reports the belief or suspicion, and the reasons for the
belief or suspicion, to the public advocate.
(2) The public advocate must give the chief executive a copy of the
report.
(3) The report is taken to be a voluntary report.
(4) The person who made the report to the public advocate is taken to have
made a voluntary report.
Note 1 There are limits on how the report may be used in evidence
(see pt 25.5).
Note 2 If a person gives information honestly and without
recklessness to the public advocate, the giving of the information is not a
breach of confidence or a breach of professional etiquette or ethics or a breach
of a rule of professional conduct. Also, civil or criminal liability is not
incurred only because of the giving of the information (see Public Advocate
Act 2005, s 15).
Note 3 Giving false or misleading information to the public advocate
is an offence (see Criminal Code, s 338).
359 Chief
executive to act on child concern report
(1) This section applies if the chief executive receives a child concern
report about a child or young person.
(2) The chief executive must—
(a) consider the report; and
(b) carry out an initial assessment of the matters raised in the report to
decide if the child or young person may be in need of care and protection;
and
(c) take the action that the chief executive considers appropriate in
relation to the initial assessment.
(3) To carry out an initial assessment of the matters raised in the
report, the chief executive may take reasonable steps to obtain further
information about the matters.
Example—reasonable
steps
a home visit to interview family members
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) Without limiting subsection (2) (c), the chief executive may
do any of the following:
(a) give advice to the person who made the child concern report about
appropriate assistance that the person may consider to protect the child or
young person;
Example—par (a)
contact details for support services
(b) seek information from an information sharing entity to decide the most
appropriate response to the child concern report;
(c) refer a matter raised in the report to the chief police officer if the
chief executive suspects on reasonable grounds that it relates to a criminal
offence;
(d) refer the matters raised in the report to a government or
community-based service for advice and support services for the child or young
person and, if appropriate, the child’s or young person’s family
members;
(e) provide or arrange support services for the child or young person and,
if appropriate, the child’s or young person’s family
members;
(f) arrange a family group conference in relation to the child or young
person;
Note Family group conferences are dealt
with in ch 3 and ch 12.
(g) assist a family member or a significant person to care for the child
or young person;
Note Care and protection orders are
dealt with in ch 14.
(h) take no action.
(5) However, if the chief executive suspects on reasonable grounds that
the child or young person may be in need of care and protection the chief
executive must decide that the child concern report is a child protection
report.
(6) In this section:
information sharing entity—see section 858.
360 Chief
executive action on child protection report
(1) This section applies if the chief executive decides that a child
concern report is a child protection report.
(2) The chief executive must take the action that the chief executive
considers appropriate in relation to the report.
(3) Without limiting subsection (2), the chief executive may do any of the
following:
(a) seek information from anyone to decide the most appropriate response
to the report;
(b) give advice to the person who made the report about appropriate
assistance that the person may consider to protect the child or young
person;
Example—par (b)
contact details for support services
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(c) refer a matter raised in the report to the chief police officer if the
chief executive suspects on reasonable grounds that it relates to a criminal
offence;
(d) refer the matters raised in the report to a government or
community-based service for advice and support services for the child or young
person and, if appropriate, the child’s or young person’s family
members;
(e) provide or arrange support services for the child or young person and,
if appropriate, the child’s or young person’s family
members;
(f) arrange a family group conference in relation to the child or young
person;
Note Family group conferences are dealt
with in ch 3 and ch 12.
(g) assist a family member or a significant person to care for the child
or young person;
(h) enter into a voluntary care agreement for the child or young
person;
(i) take no action.
(4) This section does not affect the chief executive’s capacity
to—
(a) carry out a care and protection appraisal of the child or young person
under section 367 (Care and protection appraisal—only with agreement or
appraisal order); or
(b) take action under section 370 (Visual examination etc without
agreement); or
(c) take emergency action in relation to the child or young person under
section 405 (Emergency action—criteria for taking emergency action);
or
(d) apply to the Childrens Court for a care and protection order under
section 423 (Care and protection order—application by chief
executive).
Division
11.1.3 Prenatal reporting of
anticipated abuse and neglect
361 Prenatal
reporting—anticipated abuse and neglect
(1) This section applies if, during a pregnancy, a person believes or
suspects that a child who may be born as a result of the pregnancy may be in
need of care and protection.
(2) The person may report (a prenatal report) the belief or
suspicion, and the reasons for the belief or suspicion, to the chief
executive.
(3) The chief executive may, with the consent of the pregnant woman, take
the action the chief executive considers appropriate in relation to the
report.
(4) Without limiting subsection (3), the chief executive may do any of the
following with the consent of the pregnant woman:
(a) provide a voluntary assessment of whether the child is likely to be in
need of care and protection after the child is born;
(b) provide or arrange voluntary support services for the pregnant woman,
and any family member who may be involved in caring for the child;
(c) refer the matters raised in the report to a government or
community-based service for advice and support services for the pregnant woman
and any family member who may be involved in caring for the child.
(5) The chief executive may also, without the consent of the pregnant
woman, give advice to the person who made the report about appropriate
assistance for the pregnant woman that the person may consider.
Example
contact details for support services
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(6) The chief executive may also ask the pregnant woman to consent to the
chief executive doing either or both of the following:
(a) giving prenatal information to a prenatal information sharing
entity;
(b) asking a prenatal information sharing entity for prenatal
information.
(7) If the pregnant woman does not consent under subsection (6), the chief
executive may give the prenatal information to the prenatal information sharing
entity, or ask the prenatal information sharing entity for the prenatal
information, only if the chief executive suspects on reasonable grounds that the
child may be in need of care and protection after the child is born.
(8) The chief executive is not required to act in relation to a report
under this section.
(9) The chief executive must ensure, as far as practicable, that any
action taken because of this section is appropriate and consistent with the
pregnant woman’s human rights.
Note 1 A person who gives information honestly and without
recklessness under this section does not breach professional ethics etc and is
protected from civil liability (see s 873).
Note 2 Giving false or misleading information to the chief executive
is an offence (see Criminal Code, s 338).
(10) In this section:
prenatal information means information that is relevant to
the safety, wellbeing and development of a child after the child is
born.
Examples—information relevant to
safety, wellbeing and development of child
1 information needed to assess any likely risks to the child after
birth
2 information needed to develop voluntary strategies to engage the pregnant
woman before the birth
3 information needed to develop intervention plans to be implemented at
birth that are proportionate and appropriate to the level of risk
4 information needed to decide whether a care and protection application
should be made for the child at birth
5 information needed to assess the father’s parenting capacity,
including the father’s ability and willingness to protect the child after
birth
6 information needed to engage other family members to be voluntarily
involved in protecting the child after birth
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
prenatal information sharing entity means any of the
following:
(a) a person who would be involved in the care of the child after the
child’s birth;
(b) a Minister;
(c) a health facility;
(d) a police officer or a member of a police service or force of a
State;
(e) an entity established under a law of a State or the
Commonwealth;
(f) the holder of a position established under a law of a State or the
Commonwealth;
(g) any of the following entities that would, after the child’s
birth, provide a service to, or have contact with, the child or a person who
would be involved in the care of the child:
(i) an administrative unit;
(ii) a territory authority (other than the legal aid
commission);
(iii) a territory instrumentality;
(iv) a public employee (other than a judge or magistrate);
(v) a community-based service.
362 Offence—false
or misleading prenatal report
A person commits an offence if—
(a) the person makes a prenatal report; and
(b) the report contains information or allegations that are false or
misleading in a material particular; and
(c) the person knows that the information or allegations—
(i) are false or misleading in a material particular; or
(ii) omit anything without which the information or allegations are false
or misleading in a material particular.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
363 How
prenatal reports may be used in evidence
(1) This section applies if a person honestly and without recklessness
makes a prenatal report.
(2) The report, or evidence of the contents of the report, is admissible
in evidence in a proceeding in a court only if—
(a) the report or evidence is given to the court by the person who made
the report; or
(b) the proceeding is before the Childrens Court, under chapter 11 (Care
and protection—reporting, investigating and appraising abuse and neglect)
or chapter 14 (Care and protection—care and protection orders), in
relation to the child born as a result of the pregnancy that is the subject of
the report; or
(c) the proceeding is before a court hearing an appeal from a decision of
the Childrens Court in a proceeding mentioned in paragraph (b);
or
(d) the proceeding is about a charge or allegation made in a proceeding
against a person in relation to the person’s exercising a function under
this Act.
364 Prenatal
report information is sensitive information
(1) For the definition of sensitive information in section
844, prenatal report information is also sensitive information.
(2) In this section:
prenatal report information means
information—
(a) in a prenatal report; or
(b) that would allow the information in a prenatal report to be worked
out; or
(c) that identifies a person as a person who made a prenatal report;
or
(d) that would allow a person’s identity as a person who made a
prenatal report to be worked out.
Part
11.2 Care and
protection—appraisals
Division
11.2.1 Definitions
365 What
is a care and protection appraisal?
In the care and protection chapters:
care and protection appraisal, of a child or young
person—
(a) means an appraisal of the child’s or young person’s
circumstances; and
(b) may, but need not, include the chief executive carrying out 1 or more
of the following activities:
(i) a visual examination of the child or young person or someone
else;
(ii) an interview of the child or young person or someone else;
(iii) giving information to someone;
(iv) asking someone to give information to the chief executive;
(v) making inquiries about the child or young person or someone
else;
(vi) arranging for a care and protection assessment of the child or young
person or someone else;
(vii) asking the child or young person or someone else to attend a stated
place at a stated time for the appraisal or a care and protection
assessment;
(viii) asking the child or young person or someone else to comply with any
arrangement made by the chief executive for the appraisal or a care and
protection assessment.
366 What
is a care and protection assessment?
In the care and protection chapters:
care and protection assessment of a person—
(a) means any of the following carried out by an authorised assessor for
section 437 (Care and protection assessment—authorisation of
assessors):
(i) a medical examination or test of the person;
(ii) a dental examination or test of the person;
(iii) a social assessment of the person;
(iv) a paediatric or developmental assessment of the person;
(v) a psychological examination or test of the person;
(vi) a psychiatric examination or test of the person;
(vii) if the person is a parent or other person with parental
responsibility—an assessment of the person’s parenting capacity;
but
(b) does not include an assessment, examination or test
that—
(i) involves surgery; or
(ii) is prescribed by regulation.
Note A person authorised under s 437 (Care and protection
assessment—authorisation of assessors) must be suitably qualified for the
assessment (see s 437 (2)).
Division
11.2.2 Appraisal with agreement or
order
367 Care
and protection appraisal—only with agreement or appraisal
order
(1) This section applies if the chief executive decides that a child
concern report about a child or young person is a child protection report under
section 359 (5) (Chief executive to act on child concern report).
Example
The chief executive receives a voluntary report about 10 year old Sarah on
the basis of which the chief executive suspects on reasonable grounds that she
may be in need of care and protection. Under s 359 (5), the chief executive
decides that the report is a child protection report.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive may carry out a care and protection appraisal of
the child or young person if the chief executive suspects on reasonable grounds
that the child or young person may be in need of care and protection.
(3) However, the chief executive may carry out an appraisal only
if—
(a) an appraisal order in force for the child or young person authorises
the carrying out of the appraisal; or
Note Appraisal orders are dealt with in
s 371.
(b) the chief executive—
(i) unless it is not practicable, or not in the best interests of the
child or young person, to do so—has taken reasonable steps to obtain the
agreement to the appraisal of each parent or each other person with daily care
responsibility; and
(ii) has obtained the agreement to the appraisal of at least 1 parent
or other person with daily care responsibility; or
(c) section 369 (Care and protection appraisal—agreement need not be
sought if risk etc) applies in relation to the child or young person and the
appraisal is an activity mentioned in section 370 only (Visual examination etc
without agreement).
Examples—subpar (b) (i)—not
practicable to obtain agreement
1 the identity of the parent or other person cannot be
established
2 the parent or other person cannot be found
Examples—subpar (b) (i)—not in
best interests of child or young person to obtain agreement
1 the parent or other person is the subject of an allegation of abuse or
neglect of the child or young person
2 the parent’s or other person’s contact with the child or
young person is not allowed, or is limited, under a court order (under this Act
or another law in force in the Territory
Note In certain other circumstances the chief executive need not
seek agreement (see s 369) and may visually examine or interview the child or
young person (see s 370).
(4) The agreement of a person under subsection (3) (b) may be
given orally.
(5) To avoid doubt, if the chief executive shares daily care
responsibility for the child or young person the agreement of another person who
has daily care responsibility is not required for
subsection (3) (b).
(6) The chief executive must keep a written record of an agreement under
subsection (3) (b) given orally.
368 Care
and protection appraisal—acknowledgement of agreement
When seeking the agreement of a person under
section 367 (3) (b), the chief executive must tell the
person—
(a) the purpose of the appraisal; and
(b) if the appraisal is to include a care and protection assessment of the
child or young person—the kind of assessment; and
(c) that the agreement may be refused.
369 Care
and protection appraisal—agreement need not be sought if risk etc
(1) This section applies if the chief executive proposes to carry out a
care and protection appraisal of a child or young person and the chief executive
suspects on reasonable grounds that seeking the agreement of a parent or other
person who has daily care responsibility for the child or young person would be
likely to—
(a) put the child or young person at significant risk of abuse or neglect;
or
(b) jeopardise a criminal investigation.
Example
The chief executive receives a child concern report about Andrew and
decides that the report is a child protection report. The person making the
report states that Andrew has told his teacher that his father is sexually
abusing him and has threatened to hurt him if he tells anyone. The chief
executive suspects that seeking the agreement of a person who has daily care
responsibility would be likely to put Andrew at significant risk of emotional
and physical abuse.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive need not seek the agreement of a parent or other
person who has daily care responsibility for the child or young
person.
370 Visual
examination etc without agreement
(1) If section 369 applies in relation to a child or young person, the
chief executive may, without the agreement of a parent or other person who has
daily care responsibility for the child or young person—
(a) visually examine the child or young person; and
(b) interview the child or young person.
(2) If the child or young person is a student at a school, a patient at a
health facility or being cared for by a childcare service, the chief
executive—
(a) may enter the school, health facility or childcare service to visually
examine or interview the child or young person; and
(b) if entering the school, health facility or childcare service,
must—
(i) produce his or her identity card; and
(ii) tell the person in charge of the school, health facility or childcare
service the purpose of the entry.
(3) After the chief executive visually examines or interviews the child or
young person, the chief executive must take reasonable steps to tell at least 1
parent or other person who has daily care responsibility for the child or young
person that the examination or interview has been carried out.
Note 1 The chief executive may carry out a care and protection
appraisal, with the agreement of a person who has daily care responsibility for
the child or young person, if the chief executive suspects on reasonable grounds
that the child or young person may be in need of care and protection (see s
367).
Note 2 The chief executive may carry out a care and protection
appraisal if an appraisal order is in force for the child or young
person.
(4) However, the chief executive need not tell a person about the
examination or interview if satisfied that doing so would be likely
to—
(a) put the child or young person at significant risk of abuse or neglect;
or
(b) jeopardise a criminal investigation.
(5) This section does not affect the chief executive’s capacity
to—
(a) do anything mentioned in section 359 (4) (Chief executive to act on
child concern report) or section 360 (3) (Chief executive action on child
protection report); or
(b) take emergency action in relation to the child or young person under
section 405 (Emergency action—criteria for taking emergency action);
or
(c) apply to the Childrens Court for a care and protection order under
section 423 (Care and protection order—application by chief executive);
or
(d) give information under part 25.3 (Sharing protected
information).
Division
11.2.3 Appraisal
orders
Note to div 11.2.3
The chief executive may ask the chief police officer for assistance in
taking action under an appraisal order. The chief police officer must, if
asked, give assistance to the chief executive by assigning police officers to
assist the chief executive in carrying out the action
(see s 678).
371 What
is an appraisal order?
In the care and protection chapters:
appraisal order—
(a) means an order authorising the chief executive to carry out a care and
protection appraisal of a child or young person; and
Note A care and protection appraisal may
include a care and protection assessment (see s 365).
(b) may, but need not, include 1 or more of the following
requirements:
(i) that a person attend, alone or with someone else, at a stated place at
a stated time for the appraisal;
(ii) that a person or entity comply with arrangements made by the chief
executive for the appraisal;
(iii) that a person or entity allow entry to a stated place for the
appraisal;
(iv) that a person or entity give the chief executive information about
the care, wellbeing or development of a child or young person;
(v) that something be produced to the court or given to the chief
executive or someone else;
(vi) that a person not have contact with the child or young person, or not
have contact with the child or young person except if a stated person or a
person of a stated class is present; and
Note Contact includes indirect
contact (see s 347).
(c) may, but need not, include a temporary parental responsibility
provision.
372 What
is a temporary parental responsibility
provision?
In the care and protection chapters:
temporary parental responsibility provision—
(a) means a provision in an appraisal order for a child or young person
that transfers daily care responsibility for the child or young person to the
chief executive; and
(b) may provide for the chief executive to enter and search any place the
chief executive believes on reasonable grounds the child or young person is, to
find the child or young person.
Note 1 A temporary parental responsibility provision must not be
longer than 4 weeks (see s 383).
Note 2 The chief executive may ask the chief police officer for
assistance in carrying out a temporary parental responsibility provision in an
appraisal order. The chief police officer must, if asked, give assistance to
the chief executive by assigning police officers to assist the chief executive
in carrying out the action (see s 678).
373 Offence—contravene
appraisal order
A person commits an offence if—
(a) an appraisal order is in force for a child or young person;
and
(b) the person has been given a copy of the order; and
(c) the person—
(i) engages in conduct that contravenes a provision of the order;
or
(ii) fails to comply with a requirement made of the person under the
order.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
374 Appraisal
orders—prevails over care and protection orders
If an appraisal order is made for a child or young person for whom a care
and protection order is already in force, the appraisal order prevails to the
extent of any inconsistency between the orders.
Note Care and protection orders are made under pt 14.4.
375 Appraisal
orders—application by chief executive
The chief executive may apply for an appraisal order for a child or young
person if—
(a) the chief executive is satisfied that a care and protection appraisal
is necessary to assess whether the child or young person is in need of care and
protection; and
(b) for a parent or other person who has daily care responsibility for the
child or young person, the chief executive either—
(i) has, under section 367 (Care and protection appraisal—only
with agreement or appraisal order) (unless it was not practicable, or not in the
best interests of the child or young person, to do so) taken reasonable steps to
obtain the agreement to the appraisal of a parent or each other person with
daily care responsibility and no parent or other person with daily care
responsibility has agreed to the appraisal; or
(ii) need not, under section 369 (Care and protection
appraisal—agreement need not be sought if risk etc) seek the agreement of
the person to the appraisal.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
376 Appraisal
orders—urgent applications
(1) An application for an appraisal order may be made by phone, fax or
another way if necessary because of urgent circumstances.
(2) An application made under subsection (1) must be given to the
following people before the application is heard by the court:
(a) the child or young person;
(b) each parent of the child or young person;
(c) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person;
(d) the public advocate.
(3) The Childrens Court must if practicable hear and decide the
application on the day it is filed.
377 Appraisal
orders—application to state grounds
An application for an appraisal order must state—
(a) the grounds on which the order is sought; and
(b) if the application includes an application for a temporary parental
responsibility provision—the proposed arrangements for the child’s
or young person’s care during the period of temporary parental
responsibility.
Example—ground on which order
sought
a person with parental responsibility does not agree to the appraisal
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
378 Appraisal
orders—who must be given application
(1) The chief executive must give a copy of an application for an
appraisal order for a child or young person to the following people at least
1 working day before the application is to be heard by the court:
(a) the child or young person;
(b) each parent of the child or young person;
(c) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person;
(d) the public advocate.
(2) This section does not apply—
(a) to an application under section 376 (Appraisal orders—urgent
applications); or
(b) if the chief executive or a police officer has daily care
responsibility for a child or young person under part 13.1 (Emergency
action).
Note In those cases, the chief executive need only give a copy of
the application to people before the application is heard by the court
(see s 376 and s 412).
379 Appraisal
orders—court to consider application promptly
(1) The Childrens Court must hear and decide the application not later
than 5 working days after the day the application is filed.
(2) This section does not apply to an application under section 376
(Appraisal orders—urgent applications).
Note The court must if practicable hear and decide the application
on the day it is filed (see s 376).
380 Appraisal
orders—no interim orders
The Childrens Court must not make an interim appraisal order.
381 Appraisal
orders—criteria for making
The Childrens Court may make an appraisal order for a child or young person
only if satisfied that—
(a) a parent or other person who has daily care responsibility for the
child or young person either—
(i) does not agree to the appraisal; or
(ii) under section 367 (3) (b) was not asked to agree to the
appraisal because it was not practicable, or not in the best interests of the
child or young person, to do so; or
(iii) was not asked to agree to the appraisal because of
section 369 (2) (Care and protection appraisal—agreement need
not be sought if risk etc); and
(b) a care and protection appraisal is necessary to assess whether the
child or young person is in need of care and protection.
Note 1 In a proceeding for an appraisal order, a fact is proved if
it is proved on the balance of probabilities (see s 710).
Note 2 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
382 Appraisal
orders—different provisions and requirements
In making an appraisal order for a child or young person, the Childrens
Court may include any of the following whether or not it was applied
for:
(a) a requirement that—
(i) a person attend, alone or with someone else, at a stated place at a
stated time for the appraisal; or
(ii) a person or entity comply with arrangements made by the chief
executive for the appraisal; or
(iii) that a person or entity allow entry to a stated place for the
appraisal;
(iv) a person or entity give the chief executive information about the
care, wellbeing or development of a child or young person; or
(v) something be produced to the court or given to the chief executive or
someone else; or
(vi) that a person not have contact with the child or young person, or not
have contact with the child or young person except if a stated person or a
person of a stated class is present;
Note Contact includes indirect
contact (see s 347).
(b) a temporary parental responsibility provision.
383 Appraisal
orders—length
(1) The length of an appraisal order—
(a) must be stated in the order; and
(b) must not be longer than 4 weeks.
(2) The length of a temporary parental responsibility provision in an
appraisal order—
(a) must be stated in the order; and
(b) must not be longer than 4 weeks.
Note 1 Temporary parental responsibility provisions are dealt with
in s 372.
Note 2 The length of an appraisal order may be extended to a maximum
of 8 weeks (see s 387).
384 Appraisal
orders—extension application
(1) The chief executive may apply to the Childrens Court for an extension
of an appraisal order for a child or young person.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
(2) An application for extension of an appraisal order must
state—
(a) the grounds for the proposed extension; and
(b) if the application includes an application for extension of a
temporary parental responsibility provision—the proposed arrangements for
the child’s or young person’s care during the period of temporary
parental responsibility.
385 Appraisal
orders—who must be given extension application?
The chief executive must give a copy of an application for extension of an
appraisal order to the following people at least 1 working day before the
application is to be heard by the court:
(a) each party to the proceeding in which the order was made;
(b) the public advocate.
Note Parties to proceedings are dealt with in pt 19.2.
386 Appraisal
orders—court to consider extension application
promptly
(1) After initially considering an application for extension of an
appraisal order, the Childrens Court may adjourn further consideration of the
application only if the Childrens Court is satisfied that the adjournment is
appropriate considering the urgency of the application.
(2) The Childrens Court must hear and decide the application not later
than 5 working days after the day the application is filed.
(3) If an appraisal order is in force on the day the application is filed,
but would end before the application is heard, the order continues in force
until the application is heard and decided (whether or not the application is
decided within the period required under this section).
387 Appraisal
orders—criteria for extension
The Childrens Court may, by order, extend an appraisal order only
if—
(a) the Childrens Court is satisfied that the appraisal cannot be properly
carried out unless the order is extended; and
(b) the total length of the order and the proposed extension will not be
longer than 8 weeks.
Note 1 In a proceeding for an appraisal order, a fact is proved if
it is proved on the balance of probabilities (see s 710).
Note 2 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
Chapter
12 Care and protection—voluntary
agreements to transfer or share parental responsibility
388 Definitions—Act
and ch 12
(1) In this Act:
voluntary care agreement—see section 393 (1).
(2) In this chapter:
party—see section 395 (1).
registered, for a family group conference
agreement—means registered under section 390.
Part
12.2 Registration of family group
conference agreements that transfer or share parental
responsibility
Note to pt 12.2
Family group conferences and family group conference agreements are dealt
with in ch 3.
389 Registered
family group conference agreement—application
(1) This section applies if, in a family group conference agreement
reached at a family group conference arranged under section 80 (2) (Family group
conferences—criteria), the parties agree that daily care responsibility or
long-term care responsibility for a child or young person should
be—
(a) transferred from a person to someone else (other than the chief
executive); or
(b) shared with a person (other than the chief executive) who would not
otherwise have that aspect of parental responsibility for the child or young
person.
Note 1 A family group conference may be arranged under s 80 (2) if
the chief executive believes on reasonable grounds that—
(a) the child or young person is in need of care and protection;
and
(b) arrangements should be made to secure the child’s or young
person’s care and protection.
Note 2 Daily care responsibility is dealt with in s 19.
Long-term
care responsibility is dealt with in s 20.
Note 3 A family group conference agreement must not transfer to, or
share with, the chief executive parental responsibility for the child or young
person (see s 76).
(2) The chief executive may apply to the Childrens Court to register the
family group conference agreement.
Note If a form is approved under s 885 for an agreement, the
form must be used.
(3) An application to register a family group conference agreement must be
accompanied by—
(a) a copy of the family group conference agreement; and
(b) a statement signed by each party to the agreement (other than the
chief executive) to the effect that the party has had an opportunity to get
legal advice about the meaning and effect of the agreement.
(4) The chief executive must give the public advocate a copy of the
application.
390 Registered
family group conference agreement—registration
(1) This section applies if the chief executive applies to the Childrens
Court under section 389 (2) to register a family group conference
agreement.
(2) If the Childrens Court is satisfied that it could make a care and
protection order under this Act with the same effect as the family group
conference agreement, the Childrens Court must register the agreement.
Note A family group conference agreement must not transfer to, or
share with, the chief executive parental responsibility for the child or young
person (see s 76).
(3) If the Childrens Court is not satisfied that it could make a care and
protection order under this Act with the same effect as the family group
conference agreement, the Childrens Court must refuse to register the
agreement.
(4) If the Childrens Court refuses to register a family group conference
agreement, the court must tell the chief executive about the refusal.
391 Registered
family group conference agreement—notice
(1) If the Childrens Court registers a family group conference agreement
about a child or young person under section 390 (2), the court must
tell the chief executive and the public advocate, by written notice
(a registration notice) about the registration.
(2) If the chief executive is given a registration notice, the chief
executive must give a copy of the registration notice to each person who was
invited to attend the family group conference.
392 Registered
family group conference agreement—effect and
enforcement
A registered family group conference agreement has effect as if it were a
care and protection order of the Childrens Court and may be enforced
accordingly.
Note Care and protection orders are dealt with in ch 14. It is an
offence to contravene a care and protection order (see s 422). See
also provisions about police assistance in Chapter 18 and enforcement generally
in ch 23.
Part
12.3 Voluntary agreement to share
parental responsibility with chief executive
393 What
is a voluntary care agreement?
(1) In this Act:
voluntary care agreement, for a child or young person, means
a written agreement—
(a) between the chief executive and—
(i) a parent of the child or young person; or
(ii) someone else who has daily care responsibility or long-term care
responsibility for the child or young person; and
(b) for either or both of the following aspects of parental responsibility
for the child or young person to be shared between the chief executive and the
parent or other person:
(i) daily care responsibility;
(ii) long-term care responsibility.
Note If 2 or more people have parental responsibility for a child or
young person, either of them may discharge the responsibility. However, if the
chief executive is 1 of the people, no-one else may discharge the responsibility
in a way that would be incompatible with the chief executive’s discharge
of the responsibility (see s 18).
(2) A voluntary care agreement may include an arrangement for the person
mentioned in subsection (1) (a) (i) or (ii) to pay an amount (the
contribution) to the chief executive by way of contribution to the
cost of the care of the child or young person.
(3) The contribution must not be more than the amount paid by the
Territory for the care of the child or young person.
(4) The contribution is a debt due and payable to the Territory.
394 Voluntary
care agreements—who may initiate?
Negotiations for making or ending a voluntary care agreement may be started
by any of the following people:
(a) the chief executive;
(b) the child or young person (or a person acting for the child or young
person);
(c) a parent of the child or young person;
(d) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person.
395 Voluntary
care agreements—who are parties?
(1) In this chapter:
party, for a voluntary care agreement, means the following
people:
(a) the chief executive;
(b) a parent of the child or young person who entered the
agreement;
(c) someone else who entered the agreement and who has daily care
responsibility, or long-term care responsibility, for the child or young
person.
(2) A voluntary care agreement is not void or voidable because a party to
the agreement is not an adult.
396 Voluntary
care agreements—chief executive’s criteria
The chief executive may enter into a voluntary care agreement only
if—
(a) the chief executive has considered whether another form of assistance
would be preferable; and
Examples—another form of
assistance
1 organising for the child or young person to be cared for by someone else
with daily care responsibility, or long-term care responsibility, for the child
or young person
2 organising for the child or young person to be cared for by a family
member
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(b) the chief executive is satisfied that a voluntary sharing of daily
care responsibility or long-term care responsibility for the child or young
person is necessary to ensure the child or young person’s wellbeing;
and
(c) if the chief executive is satisfied that the child or young person has
sufficient developmental capacity to understand that it is proposed that the
child or young person will be temporarily cared for by a person who is not the
child’s or young person’s former caregiver—the chief executive
finds out and considers the child’s or young person’s views and
wishes; and
(d) for a voluntary care agreement in relation to a young person who is
school-leaving age or older, the chief executive—
(i) obtains the young person’s agreement to the voluntary care
agreement; or
(ii) is satisfied that the young person does not have sufficient maturity
or developmental capacity to understand and agree to the proposed voluntary care
agreement.
Note School-leaving age is
15 years old (see dict).
397 Voluntary
care agreements—start day
If the chief executive has entered into a voluntary care agreement, the
chief executive starts sharing responsibility for the child or young person
under the voluntary care agreement—
(a) when the agreement is entered into; or
(b) if the agreement states a later day—on the later day.
398 Voluntary
care agreements—length
(1) The length of a voluntary care agreement must be stated in the
agreement.
(2) A voluntary care agreement—
(a) for a voluntary care agreement in relation to a young person who is
school-leaving age or older—may be longer than 6 months if the young
person agrees; and
(b) in any other case—must be not longer than
6 months.
399 Voluntary
care agreements—extension
(1) The parties to a voluntary care agreement may agree in writing to
extend the agreement if—
(a) the total length of the voluntary care agreement and the proposed
extension will be not longer than—
(i) 6 months; or
(ii) if the voluntary care agreement is in relation to a young person who
is school-leaving age or older and the young person agrees to a period longer
than 6 months—the longer period; or
(b) at the end of the proposed extension, the child or young person will
not have been cared for under a voluntary care agreement for more
than—
(i) 6 months in the previous 12 months; or
(ii) if the voluntary care agreement is in relation to a young person who
is school-leaving age or older and the young person agrees to a period longer
than 6 months—the longer period.
(2) However, the chief executive may agree to extend the voluntary care
agreement only if—
(a) the chief executive—
(i) has considered whether another form of assistance would be preferable;
and
(ii) is satisfied that the voluntary sharing of responsibility for the
child or young person under the voluntary care agreement is appropriate;
and
(iii) if satisfied that the child or young person has sufficient
developmental capacity to understand that it is proposed that the child or young
person will continue to be temporarily cared for under a voluntary care
agreement—finds out and considers the child’s or young
person’s views and wishes; and
(b) for voluntary care agreement about a young person who is
school-leaving age or older—
(i) the young person agrees to the extension; or
(ii) the young person does not have sufficient maturity or developmental
capacity to understand and agree to the proposed voluntary care
agreement.
(3) A voluntary care agreement may be extended more than once.
400 Voluntary
care agreements—early ending
A party to a voluntary care agreement may, before the agreement ends, end
the agreement by giving written notice to the other parties.
401 Voluntary
care agreements—return of children and young people
(1) If a voluntary care agreement ends, the chief executive must return
the child or young person as soon as practicable after the day the voluntary
care agreement ends, to a former caregiver of the child or young person or other
person as agreed between the parties to the agreement.
(2) The chief executive shares responsibility for the child or young
person under the voluntary care agreement until the child or young person is
returned.
(3) The chief executive’s responsibility for the child or young
person under the voluntary care agreement ends when the child or young person is
returned.
(4) However, the chief executive is not required to return a child or
young person if—
(a) emergency action is being taken in relation to the child or young
person; or
Note Emergency action may be taken under ch 13.
(b) the chief executive has applied to the Childrens Court for a care and
protection order including a parental responsibility provision that would give
the chief executive daily care responsibility or long-term care responsibility,
or both, for the child or young person.
Note Parental responsibility provisions are dealt with in div
1.3.2.
Care and protection orders are dealt with in ch 14.
(5) Subsection (4) does not allow the chief executive to keep
responsibility for the child or young person under the voluntary care agreement
if the Childrens Court refuses the chief executive’s
application.
Chapter
13 Care and protection and therapeutic
protection—emergency situations
Part
13.1 Emergency
action
402 When
are children and young people in need of emergency care and
protection?
For the care and protection chapters, a child or young person is
in need of emergency care and protection if the child or
young person—
(a) is in immediate need of care and protection; or
(b) is likely to be in immediate need of care and protection if emergency
action is not taken.
Note In need of care and protection is defined in
s 344.
403 When
are children and young people in need of emergency therapeutic
protection?
For the care and protection chapters, a child or young person is
in need of emergency therapeutic protection
if—
(a) the child or young person meets the criteria for a therapeutic
protection order; and
(b) the immediate placement of the child or young person in a therapeutic
protection place is necessary to ensure the child or young person’s
safety.
404 What
is emergency action?
In this Act:
emergency action, taken by the chief executive or a police
officer, for a child or young person—
(a) means transferring daily care responsibility for the child or young
person to the chief executive or police officer; and
(b) includes arranging for the child’s or young person’s care
and protection by keeping the child or young person at a place or by moving the
child or young person from a place to another place.
Note 1 If the chief executive has daily care responsibility for a
child or young person, the chief executive must place the child or young person
with an out-of-home carer (see pt 15.4) unless the child or young person is
in therapeutic protection.
Note 2 An authorised person or police officer may at any time enter
premises if the authorised person or police officer believes on reasonable
grounds that a child or young person at the premises is in need of emergency
care and protection and the purpose of the entry is to take emergency action for
the child or young person (including using force that is reasonable and
necessary to obtain entry to safeguard the wellbeing of the child or young
person) (see s 813).
405 Emergency
action—criteria for taking emergency action
(1) The chief executive or a police officer may take emergency action for
a child or young person if the chief executive or police officer believes on
reasonable grounds that the child or young person is in need of emergency care
and protection or emergency therapeutic protection.
(2) To remove any doubt, the chief executive or police officer may take
emergency action for a child or young person if the child or young person is in
the care of—
(a) a parent of the child or young person; or
(b) someone else who has daily care responsibility for the child or young
person.
Note Daily care responsibility for a child or young person is dealt
with in s 19.
406 Emergency
action—assistance
The chief executive or police officer may use whatever assistance is
necessary and reasonable to take emergency action.
Note The chief executive may ask the chief police officer for
assistance in carrying out emergency action and the chief police officer must
assign police officers to assist the chief executive (see pt
18.1).
407 Emergency
action—certain people must be told
(1) If a police officer takes emergency action for a child or young
person, the police officer must—
(a) immediately tell the chief executive, in writing—
(i) the name of the child or young person; and
(ii) why the emergency action was taken; and
(b) if practicable—tell the following people about the emergency
action as soon as practicable:
(i) the parents of the child or young person;
(ii) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person; and
(c) deliver the child or young person to the place or person advised by
the chief executive.
(2) However, if it is not practicable for the police officer to tell the
chief executive in writing immediately, the police officer may tell the chief
executive orally immediately and then in writing as soon as
practicable.
(3) If the chief executive takes emergency action for a child or young
person, or is told that a police officer has taken emergency action for a child
or young person, the chief executive must, as soon as practicable, tell the
following people that emergency action has been taken for the child or young
person:
(a) if not already told about the emergency action—
(i) the parents of the child or young person; and
(ii) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person;
(b) the public advocate;
(c) the Childrens Court.
408 Emergency
action—daily care responsibility after action
(1) If the chief executive takes emergency action for a child or young
person, the chief executive has daily care responsibility for the child or young
person.
(2) If a police officer takes emergency action for a child or young
person, the police officer has daily care responsibility for the child or young
person until the police officer tells the chief executive about the emergency
action under section 407.
Note The police officer must tell the chief executive immediately in
writing, or, if that is not practicable, immediately orally and as soon as
practicable in writing (see s 407 (1) and (2)).
(3) After the police officer tells the chief executive about the emergency
action, the chief executive has daily care responsibility for the child or young
person.
(4) The chief executive may authorise a police officer to exercise daily
care responsibility for a child or young person on behalf of the chief
executive.
Note If 2 or more people have parental responsibility for a child or
young person, either of them may discharge the responsibility. However, if the
chief executive is 1 of the people, no-one else may discharge the responsibility
in a way that would be incompatible with the chief executive’s discharge
of the responsibility (see s 18 and s 474 (2)).
409 Emergency
action—length of daily care responsibility
If the chief executive or a police officer takes emergency action for a
child or young person, the chief executive or police officer may keep daily care
responsibility for the child or young person without an order of the Childrens
Court—
(a) for not longer than 2 working days after the day the
emergency action was taken; or
(b) if the 2 working days are interrupted by a Saturday, a
Sunday and a public holiday—until the matter can be brought before the
court on the next sitting day of the court.
410 Care
and protection appraisal and placement
If the chief executive has daily care responsibility for a child or young
person under this division, the chief executive may make arrangements for the
care and protection of the child or young person including—
(a) arranging a care and protection appraisal that includes an examination
of the circumstance that led to the taking of the emergency action;
and
Note Care and protection appraisals are
dealt with in pt 11.2.
(b) placing the child or young person with a person
including—
(i) a parent of the child or young person; or
(ii) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person; or
(iii) a former caregiver of the child or young person.
411 Emergency
action—contact with family
(1) If the chief executive or a police officer has daily care
responsibility for a child or young person under this division, the chief
executive or police officer must, as far as practicable, allow reasonable
contact between the child or young person and his or her family members and
significant people.
(2) However, the chief executive or police officer is not required to
allow contact if the contact would create a risk of harm to the child or young
person.
412 Emergency
action—application for orders
(1) This section applies if—
(a) the chief executive or a police officer has daily care responsibility
for a child or young person under this division; and
(b) the chief executive applies for any of the following orders for the
child or young person:
(i) an appraisal order;
(ii) a care and protection order;
(iii) an assessment order;
(iv) a therapeutic protection order.
(2) The chief executive need only give a copy of the application to people
under the following sections before the application is heard by the Childrens
Court:
(a) section 378 (Appraisal orders—who must be given
application);
(b) section 426 (Care and protection orders—who must be given
application);
(c) section 444 (Assessment orders—who must be given
application);
(d) section 540 (Therapeutic protection orders—who must be
given application).
(3) The Childrens Court must give initial consideration to the application
on the day it is filed.
413 Emergency
action—end of daily care responsibility
(1) This section applies if the chief executive or a police officer has
daily care responsibility for a child or young person under this
division.
(2) The chief executive or police officer stops having daily care
responsibility for the child or young person if—
(a) the child or young person is returned to someone mentioned in
section 414 (2); or
(b) the Childrens Court makes an order giving daily care responsibility
for the child or young person to someone else.
414 Emergency
action—return of child or young person
(1) This section applies if the chief executive or a police officer has
daily care responsibility for a child or young person under this division and,
at the end of the period for which the chief executive or police officer may
keep responsibility—
(a) none of the following orders have been made for the child or young
person:
(i) an appraisal order with a temporary parental responsibility
provision;
(ii) an interim care and protection order with a parental responsibility
provision;
(iii) a care and protection order with a parental responsibility
provision;
(iv) an interim therapeutic protection order;
(v) a therapeutic protection order; and
(b) the chief executive or police officer still has daily care
responsibility for the child or young person.
(2) The chief executive or police officer must deliver the child or young
person into the care of 1 of the following people:
(a) a parent of the child or young person who has parental responsibility
for the child or young person;
(b) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(c) a former caregiver of the child or young person.
Part
13.2 Emergency action release
orders
415 What
is an emergency action release order?
In this Act:
emergency action release order, for a child or young person
for whom the chief executive or a police officer has daily care responsibility
under part 13.1, means an order for the release of the child or young person
into the care of a stated person.
416 Emergency
action release order—application
(1) This section applies if the chief executive or a police officer has
daily care responsibility for a child or young person under
part 13.1.
(2) Any of the following people (the applicant) may apply to
the Childrens Court for an emergency action release order:
(a) the child or young person;
(b) a parent of the child or young person who has parental responsibility
for the child or young person;
(c) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(d) a former caregiver of the child or young person;
(e) the public advocate.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
417 Emergency
action release order—application to state grounds
An application for an emergency action release order must state the grounds
on which the order is sought.
418 Emergency
action release order—who must be given application
The applicant must give a copy of the application for the emergency action
release order to the following people before the application is heard by the
court:
(a) the child or young person;
(b) each parent of the child or young person;
(c) each other person (if any) who had daily care responsibility, or
long-term care responsibility, for the child or young person immediately before
the emergency action was taken;
(d) the chief executive;
(e) the public advocate.
Note If the chief executive applies for an appraisal order, a care
and protection order, an assessment order or a therapeutic protection order for
the child or young person, the chief executive need only give a copy of the
application to people before the application is heard by the court
(see s 412).
419 Emergency
action release order—criteria for making
The Childrens Court may make an emergency action release order for a child
or young person only if satisfied that the child or young person is no longer in
need of emergency care and protection or emergency therapeutic
protection.
Note 1 In a proceeding for an emergency action release order, a fact
is proved if it is proved on the balance of probabilities
(see s 710).
Note 2 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
Chapter
14 Care and protection—care and
protection orders
In this chapter:
authorised assessor—see section 437.
care and protection order—see
section 421.
contact provision, in a care and protection order—see
section 484.
drug use provision, in a care and protection order—see
section 487.
DVPO protection order—see section 457.
enduring parental responsibility provision, in a care and
protection order—see section 480.
interim care and protection order—see
section 432.
mental health tribunal provision, in a care and protection
order—see section 490.
parental responsibility provision, in a care and protection
order—see section 473.
provision, in a care and protection order, means any of the
following provisions in the care and protection order:
(a) a contact provision;
(b) a drug use provision;
(c) an enduring parental responsibility provision;
(d) a mental health tribunal provision;
(e) a residence provision;
(f) a short-term parental responsibility provision;
(g) a long-term parental responsibility provision;
(h) a specific issues provision;
(i) a supervision provision.
short-term parental responsibility provision, in a care and
protection order—see section 475.
specific issues provision, in a care and protection
order—see section 491.
supervision provision, in a care and protection
order—see section 488.
421 What
is a care and protection order?
In this Act:
care and protection order—
(a) means an order about the care and protection of a child or young
person; and
(b) may contain any of the following provisions:
(i) a contact provision;
(ii) a drug use provision;
(iii) an enduring parental responsibility provision;
(iv) a mental health tribunal provision;
(v) a residence provision;
(vi) a short-term parental responsibility provision;
(vii) a long-term parental responsibility provision;
(viii) a specific issues provision;
(ix) a supervision provision.
422 Offence—contravene
care and protection order
A person commits an offence if—
(a) a care and protection order is in force for someone else who is a
child or young person; and
(b) the person has been given a copy of the order; and
(c) the person engages in conduct that contravenes a provision of the
order.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Note 1 A registered family group conference agreement has effect as
if it were an order of the Childrens Court and may be enforced accordingly
(see s 392).
Note 2 If a care and protection order is in force for a child or
young person and there are reasonable grounds for suspecting that someone has
contravened the order and because of the contravention, the child or young
person is in danger, the chief executive or police officer may apply to the
Childrens Court for a warrant to have the child or young person taken into safe
custody (see s 684).
Part
14.2 Applications for care and
protection orders
423 Care
and protection order—application by chief executive
The chief executive may apply to the Childrens Court for a care and
protection order for a child or young person if the chief executive believes on
reasonable grounds that the child or young person is in need of care and
protection.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
424 Care
and protection order—application by others
(1) Someone (the other applicant) other than the chief
executive may apply to the Childrens Court for a care and protection order for a
child or young person if—
(a) the other applicant believes on reasonable grounds that the child or
young person is in need of care and protection; and
(b) if the chief executive has not applied for a care and protection order
for the child or young person—the other applicant has consulted the chief
executive about the application; and
(c) the other applicant has the leave of the Childrens Court to make the
application.
(2) If the other applicant seeks the leave of the Childrens Court to make
the application, the Childrens Court—
(a) must hear the other applicant and the chief executive; and
(b) may give the other applicant leave to make the application.
(3) If the other applicant applies for a care and protection order for a
child or young person, the chief executive and the public advocate may each
appear and be heard in the proceeding.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
425 Care
and protection order—application must state provisions sought and
grounds
(1) An application for a care and protection order must
state—
(a) the provisions proposed to be included in the order; and
(b) the grounds on which the care and protection order is
sought.
(2) An application for a care and protection order with a parental
responsibility provision must also state—
(a) whether parental responsibility is proposed to be shared or
transferred; and
(b) each person who is to share parental responsibility; and
(c) each person to whom parental responsibility is to be
transferred.
Note The Childrens Court may also include a provision in a care and
protection order whether or not anyone applied, or cross-applied, for it
(see s 382).
426 Care
and protection orders—who must be given application
(1) The applicant for a care and protection order for a child or young
person must give a copy of the application to the following people at least
3 working days before the application is to be heard by the
court:
(a) the child or young person;
(b) each parent of the child or young person;
(c) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person;
(d) if the applicant is not the chief executive—the chief
executive;
(e) the public advocate.
(2) This section does not apply if the chief executive or a police officer
has daily care responsibility for a child or young person under part 13.1
(Emergency action).
Note For s (2), the chief executive need only give a copy of the
application to people before the application is heard by the court
(see s 412).
427 Care
and protection order—cross-application for different
provisions
(1) A party to a proceeding for a care and protection order for a child or
young person may cross-apply for a different provision to be included in the
order, different terms in a provision in the order or a different order, if the
party—
(a) believes on reasonable grounds that the different provision, terms or
order is in the best interests of the child or young person; and
(b) has leave of the Childrens Court to cross-apply.
Example—different term in provision in
order
An order includes a residence provision about with whom the child must
live. A party may cross-apply for the residence provision to provide for the
child to live with a different person.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) If a party seeks the leave of the Childrens Court to cross-apply, the
court may give leave only if satisfied that there are reasonable grounds for
believing that the different provision, terms or order is in the best interests
of the child or young person.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
428 Care
and protection order—cross-application must state provisions sought and
grounds
(1) A cross-application for a care and protection order must
state—
(a) the provisions that the applicant proposes to have included in the
order, the proposed different terms in the provisions in the order or the
proposed different order; and
(b) for a cross-application for a different provision, terms or order in a
care and protection order—
(i) the draft different provision, terms or order; and
(ii) why the different provision, terms or order would be in the best
interests of the child or young person.
Note The Childrens Court may also include a provision in a care and
protection order whether or not anyone applied, or cross-applied, for it
(see s 382).
(2) A cross-application for a care and protection order with a parental
responsibility provision must also state—
(a) whether parental responsibility is proposed to be shared or
transferred; and
(b) each person who is to share parental responsibility; and
(c) each person to whom parental responsibility is to be
transferred.
429 Care
and protection order—court to consider application and cross-application
promptly
(1) The Childrens Court must give initial consideration to an application,
or cross-application, for a care and protection order not later than
5 working days after the day the application, or cross-application, is
filed.
(2) The application or cross-application must be initially listed before a
magistrate.
(3) The magistrate must give directions about the conduct of the
proceeding (including the hearing of the application or cross-application) at
the time the application or cross-application is initially considered.
(4) If a care and protection order in relation to the child or young
person who is the subject of the application or cross-application is in force on
the day the application or cross-application is filed, but the care and
protection order would end before the application or cross-application is heard,
the care and protection order continues in force until the application or
cross-application is heard and decided (whether or not the application or
cross-application is considered within the period required under this
section).
(5) This section does not apply if the chief executive or a police officer
has daily care responsibility for a child or young person under part 13.1
(Emergency action).
Note For s (5), the court must give initial consideration to the
application on the day it is filed (see s 412).
Part
14.3 Interim care and protection
matters
430 Interim
matters—Court action before adjournment
(1) Before adjourning an application or cross-application under
part 14.2 (Applications for care and protection orders), the Childrens
Court must—
(a) identify the matters in dispute and consider the length of hearing
required; and
(b) give whatever directions are necessary to facilitate the
hearing.
Examples—directions to facilitate
hearing
1 a direction about when evidence must be filed
2 a direction about when further directions may be made
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(2) Also, before adjourning an application or cross-application under this
part, the Childrens Court may do any of the following:
(a) order that a meeting (a court-ordered meeting) be held
to identify or resolve matters in dispute;
Note Court-ordered meetings are dealt
with in s 431.
(b) make an interim care and protection order for the child or young
person;
Note Interim care and protection orders
are dealt with in s 432.
(c) make an assessment order;
Note Assessment orders are dealt with in
s 435.
(d) make a DVPO interim protection order for the child or young person
under section 458;
Note The Childrens Court may make a DVPO
interim protection order if satisfied that it is necessary to ensure the
child’s or young person’s safety until the application for the care
and protection order is decided.
(e) if an interim care and protection order is in force for the child or
young person—
(i) extend the length of the order and any provision so that they remain
in force until the end of the adjournment; or
(ii) revoke any provision or both the order and the provision.
431 Interim
matters—court-ordered meeting
(1) A court-ordered meeting for a care and protection order for a child or
young person—
(a) must be attended by—
(i) the chief executive; and
(ii) someone who has daily care responsibility for the child or young
person; and
(iii) someone who has long-term care responsibility for the child or young
person; and
(b) may be attended by—
(i) any party to the proceeding; and
(ii) the representative of any party to the proceeding; and
Note Representation of children and young people is dealt with in
the Court Procedures Act 2004, pt 7A (Procedural
provisions—proceedings involving children).
(iii) anyone else who was given a copy of the application under
section 426 (Care and protection orders—who must be given
application); and
(iv) with the leave of the court—anyone who has an interest in the
proceeding.
(2) The Childrens Court must appoint a suitable person to preside at the
court-ordered meeting.
Examples—suitable
people
1 a mediator providing community-based mediation services
2 a registrar of the court
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) However, the Childrens Court must not appoint anyone mentioned in
subsection (1) who is attending the court-ordered meeting to preside at the
meeting.
(4) The person presiding at a court-ordered meeting must report the
outcome of the court-ordered meeting to the Childrens Court.
Division
14.3.2 Interim care and protection
orders
432 Interim
matters—interim care and protection orders
(1) The Childrens Court may, on application or on its own initiative, make
an order (an interim care and protection order) for a child or
young person if—
(a) an application for a care and protection order for the child or young
person has been made to the court but not finally decided; and
(b) the court believes on reasonable grounds that the child or young
person is in need of care and protection or would be in need of care and
protection if the interim care and protection order was not made.
(2) The Childrens Court must include in an interim care and protection
order any of the following provisions that the Childrens Court is satisfied is
in the best interests of the child or young person:
(a) a contact provision;
(b) a drug use provision;
(c) a mental health tribunal provision;
(d) a residence provision;
(e) a supervision provision;
(f) a parental responsibility provision;
(g) a specific issues provision.
(3) The length of an interim care and protection order must be stated in
the order and the order must end on, or before, the day the application or cross
application is decided.
(4) Before making an interim care and protection order for a child or
young person, the Childrens Court may require the chief executive to give the
court a care plan for the child or young person for the period of the interim
order.
Note Care plans are dealt with in s 454.
433 Offence—contravene
interim care and protection order
A person commits an offence if—
(a) an interim care and protection order is in force for someone else who
is a child or young person; and
(b) the person has been given a copy of the order; and
(c) the person engages in conduct that contravenes a provision of the
order.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
434 Interim
care and protection orders—revocation or amendment
(1) This section applies if, during the hearing of an application for a
care and protection order, the Childrens Court makes an interim care and
protection order for a child or young person.
(2) A party (the applicant) to the proceeding for the care
and protection order may apply to the Childrens Court for revocation or
amendment of the interim care and protection order.
(3) The applicant must give a copy of the application to the following
people at least 3 working days before the application is heard by the
court:
(a) each party to the proceeding;
(b) anyone else who was required to be given a copy of the application for
the care and protection order;
(c) the public advocate.
(4) The Childrens Court must give initial consideration to the application
not later than 5 working days after the day the application is
filed.
(5) The Childrens Court must give directions about the conduct of the
proceeding (including the hearing of the application) at the time the
application is initially considered.
(6) After hearing the application, the Childrens Court
must—
(a) revoke the interim care and protection order; or
(b) amend the interim care and protection order; or
(c) substitute a provision in the interim care and protection order for a
different provision; or
(d) dismiss the application.
(7) If the interim care and protection order is in force on the day the
application for revocation or amendment is filed, but would end before the
application is heard, the interim care and protection order continues in force
until the application is heard and decided (whether or not the application is
considered within the period required under this section).
Division
14.3.3 Assessment
orders
Note to div 14.3.3
The chief executive may ask the chief police officer for assistance in
taking action under an assessment order. The chief police officer must, if
asked, give assistance to the chief executive by assigning police officers to
assist the chief executive in carrying out the action
(see s 678).
435 What
is an assessment order?
In the care and protection chapters:
assessment order—
(a) means an order authorising the chief executive to arrange for the care
and protection assessment of a person in relation to a child or young person;
and
Note Care and protection
assessment is defined in s 366.
(b) may, but need not, include 1 or more of the following
requirements:
(i) that a person attend, alone or with someone else, at a stated place at
a stated time for the care and protection assessment;
(ii) that a person or entity comply with arrangements made by the chief
executive for the care and protection assessment;
(iii) that a person or entity give the court information relevant to the
care, wellbeing or development of a child or young person;
(iv) that something be produced to the court.
436 Care
and protection assessment—terms of reference for care and protection
assessment
(1) For a care and protection assessment of a child or young person,
unless the assessment order states otherwise, the chief executive
must—
(a) decide the matters to be assessed in the care and protection
assessment (the terms of reference); and
(b) choose an authorised assessor to make the assessment.
(2) The terms of reference—
(a) may relate to the child or young person who is the subject of the
assessment or another person; and
Example—another
person
a person with parental responsibility for the child or young
person
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(b) may include any matter that the chief executive considers
relevant.
(3) The chief executive must consult with the parties before deciding the
terms of reference or choosing the assessor for a care and protection
assessment.
Note For the parties under the care and protection chapters, see
s 699.
(4) For subsection (5), the chief executive must—
(a) tell the parties about the proposed terms of reference or assessor;
and
(b) give the parties at least 7 days to make submissions to the chief
executive about the proposed terms of reference or assessor; and
(c) take into account any submissions made by a party.
437 Care
and protection assessment—authorisation of assessors
(1) The chief executive may authorise a person to carry out care and
protection assessments (an authorised assessor).
Note Power to make a statutory instrument includes power to make
different provision for different categories (see Legislation Act, s 48).
(2) The chief executive may authorise a person only if the chief executive
considers the person is suitably qualified to carry out care and protection
assessments.
Examples—suitably qualified
people
1 a doctor or nurse to carry out medical examinations
2 a social worker or psychologist to carry out social assessments
3 an occupational therapist or other health professional to carry out
developmental assessments
4 another person with qualifications or expertise to carry out
assessments
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) An authorisation is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
438 Care
and protection assessment—report after making
(1) An authorised assessor who carries out a care and protection
assessment must, as soon as practicable after the assessment is completed, give
the chief executive—
(a) a written report of the assessment; and
(b) any records made by the assessor in the course of carrying out the
assessment.
(2) The chief executive must file the report with the Childrens
Court.
(3) A report filed under this section is taken to be a report to the
Childrens Court rather than evidence tendered by a party.
439 Offence—contravene
assessment order
A person commits an offence if—
(a) an assessment order is in force for a child or young person;
and
(b) the person has been given a copy of the order; and
(c) the person is not a child or young person who is to be assessed under
the order (other than in the capacity of a parent); and
(d) the person engages in conduct that contravenes a provision of the
order.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
440 Assessment
orders—prevails over care and protection order
If an assessment order is made in relation to a child or young person for
whom a care and protection order is already in force, the assessment order
prevails to the extent of any inconsistency between the orders.
Note Care and protection orders are made under pt 14.4.
441 Assessment
orders—on application or court’s own initiative
In a proceeding for a care and protection order for a child or young
person, the Childrens Court may make an assessment order for a person on
application by a party to the proceeding or on its own initiative.
442 Assessment
orders—application by party
(1) A party to a proceeding for a care and protection order for a child or
young person may apply for an assessment order if the party believes on
reasonable grounds that—
(a) a care and protection assessment is necessary to assess whether the
child or young person is in need of care and protection; and
(b) the care and protection assessment cannot be properly carried out
unless the order is made; and
(c) if the application is for an assessment order for the child or young
person and a care and protection assessment of the child or young person has
been carried out previously—the further care and protection assessment of
the child or young person is not detrimental to the child or young
person.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
Note 3 Parties to proceedings are dealt with in pt 19.2.
(2) A party who applies for an assessment order must meet the costs of the
care and protection assessment.
443 Assessment
orders—application to state grounds
An application for an assessment order must state the grounds on which the
order is sought.
444 Assessment
orders—who must be given application
(1) The applicant for an assessment order in relation to a child or young
person must give a copy of the application to the following people at least
3 working days before the application is to be heard by the
court:
(a) the child or young person;
(b) each parent of the child or young person;
(c) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person;
(d) the public advocate.
(2) This section does not apply if the chief executive or a police officer
has daily care responsibility for a child or young person under part 13.1
(Emergency action).
Note For s (2), the chief executive need only give a copy of the
application to people before the application is heard by the court
(see s 412).
445 Assessment
orders—court to consider application promptly
The Childrens Court must give initial consideration to an application for
an assessment order not later than 5 working days after the day the
application is filed.
446 Assessment
orders—no interim order
The Childrens Court must not make an interim assessment order.
447 Assessment
orders—criteria for making
The Childrens Court may make an assessment order in relation to a child or
young person only if satisfied that—
(a) a care and protection assessment is necessary to assess whether the
child or young person is in need of care and protection; and
(b) the care and protection assessment cannot be properly carried out
unless the order is made; and
(c) if the application is for an assessment order for the child or young
person and a care and protection assessment of the child or young person has
been carried out previously—the further care and protection assessment of
the child or young person is not detrimental to the child or young
person.
Note 1 In a proceeding for an assessment order, a fact is proved if
it is proved on the balance of probabilities (see s 710).
Note 2 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
448 Assessment
orders—length
The length of an assessment order—
(a) must be stated in the order; and
(b) must not be longer than 10 weeks.
Note The length of an assessment order may be extended
(see s 453).
449 Assessment
orders—extension application
A party to a proceeding for a care and protection order for a child or
young person may apply to the Childrens Court for extension of an assessment
order for a child or young person if the party believes on reasonable grounds
that the care and protection assessment cannot be properly carried out unless
the order is extended.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
450 Assessment
orders—extension application must state grounds
An application for extension of an assessment order must state the grounds
for the proposed extension.
451 Assessment
orders—who must be given extension application?
The applicant for extension of an assessment order must give a copy of the
application to the following people at least 3 working days before the
application is to be heard by the court:
(a) each party to the proceeding in which the order was made;
(b) anyone else who was required to be given a copy of the application for
the assessment order;
(c) the public advocate.
Note Parties to proceedings are dealt with in pt 19.2.
452 Assessment
orders—court to consider extension application
promptly
(1) The Childrens Court must give initial consideration to an application
for extension of an assessment order not later than 5 working days after
the day the application is filed.
(2) After initially considering the application, the Childrens Court may
adjourn further consideration of the application only if satisfied that the
adjournment is appropriate considering the urgency of the application.
(3) If the assessment order is in force on the day the application is
filed, but would end before the application is heard, the order continues in
force until the application is heard and decided (whether or not the application
is considered within the period required under this section).
453 Assessment
orders—criteria for extension
(1) The Childrens Court may, by order, extend an assessment
order—
(a) only if satisfied that the care and protection assessment cannot be
properly carried out unless the order is extended; and
(b) only if the total length of the order and the proposed extension will
not be longer than 18 weeks.
(2) However the Childrens Court may extend the assessment order so that
the total length of the order and the proposed extension is longer than 18 weeks
if—
(a) the total length of the order and the proposed extension will not be
longer than 26 weeks; and
(b) the court is satisfied that because of special and exceptional
circumstances the extension is necessary for the assessment to be properly
completed.
Note 1 In a proceeding for an assessment order, a fact is proved if
it is proved on the balance of probabilities (see s 710).
Note 2 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
Division
14.3.4 Care plans
In this Act:
care plan, for a child or young person who is, or is proposed
to be, subject to a care and protection order or interim care and protection
order—
(a) means a written plan for meeting the child’s or young
person’s protection or care needs; and
(b) may include proposals for the purposes of case planning about the
following:
(i) who the chief executive considers would be the best person to have a
stated aspect of parental responsibility for the child or young
person;
(ii) for an Aboriginal or Torres Strait Islander child or young
person—the preservation and enhancement of the identity of the child or
young person as an Aboriginal or Torres Strait Islander person;
(iii) if the chief executive proposes to place the child or young person
in kinship care or foster care—the kind of placement that will be sought
or provided for the child or young person including any interim placement
arrangements;
Note Placement of children and young people in kinship care and
foster care is dealt with in div 15.4.1.
(iv) how the chief executive proposes to ensure the living arrangements
for the child or young person are as stable as possible;
(v) contact arrangements for the child or young person with family members
and significant people as appropriate;
(vi) services to be provided for the child or young person;
(vii) if the child or young person is or is proposed to be placed in
out-of-home care—planning and services to be provided for the child or
young person when leaving out of home care.
455 Care
plans—stability proposals
(1) This section applies if a care plan includes a proposal mentioned in
section 454 (b) (iii) in relation to a child or young person’s living
arrangements.
(2) The chief executive must prepare a proposal (a stability
proposal) that outlines how the chief executive proposes to ensure
long-term placement in a safe, nurturing and secure environment.
(3) A stability proposal may include—
(a) for a child or young person who lives with his or her
parents—strategies to ensure stable and long-term living arrangements;
and
(b) for a child or young person who does not live with his or her
parents—
(i) an assessment of whether restoration of the child or young person to
his or her parents is a realistic possibility; or
(ii) a proposal for restoration that includes changes at the home or by
the parents that the chief executive believes would need to occur before the
chief executive would consider it safe for the child or young person to return
to his or her parents; or
(iii) a proposal for long-term placement that the chief executive
considers to be in the best interests of the child or young person.
(c) anything else the chief executive considers necessary to ensure a
long-term placement in a safe, nurturing and secure environment.
(4) A proposal for long-term placement may include—
(a) placement under a care and protection order with a long-term parental
responsibility provision; or
(b) placement under a care and protection order with an enduring parental
responsibility provision; or
(c) placement under a parenting order under the Family Law
Act 1975 (Cwlth); or
(d) adoption under the Adoption Act 1993.
(5) The chief executive must not include adoption in a proposal for
long-term placement for an Aboriginal or Torres Strait Islander child or young
person under subsection (4) unless the chief executive has considered the
Adoption Act 1993, section 21.
456 Care
plans—who must be consulted
(1) If the chief executive is preparing a care plan for a child or young
person, the chief executive must—
(a) tell the following people about the proposals the chief executive
intends to include in the care plan:
(i) the child or young person;
(ii) each person who has daily care responsibility for the child or young
person;
(iii) anyone else who would be involved in implementing a proposal;
Examples—people who would be
involved
1 an out-of-home carer for the child or young person
2 a community-based service that is providing services to the child or
young person
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(iv) for a proposal prepared under section 454
(b) (ii)—
(A) Aboriginal or Torres Strait Islander people who have an interest in
the wellbeing of the child or young person through family, kinship and cultural
ties; and
(B) any Aboriginal or Torres Strait Islander people or organisation
identified by the chief executive as providing ongoing support services to the
child or young person or the child’s or young person’s family; and
(b) give the people opportunity to make submissions to the chief executive
about the proposals.
(2) If a person makes a submission to the chief executive about a
proposal, the chief executive must consider the submission.
Division
14.3.5 Orders under Domestic Violence
and Protection Orders Act
457 Definitions—div
14.3.5
In this division:
domestic violence—
(a) see the Domestic Violence and Protection Orders Act 2001,
section 9 (1); and
(b) includes psychological abuse of a child or young person.
DVPO final protection order—see the Domestic
Violence and Protection Orders Act 2001, dictionary, definition of
final order.
DVPO interim protection order—see the Domestic
Violence and Protection Orders Act 2001, dictionary, definition of
interim order.
DVPO protection order means a DVPO interim protection order
or a DVPO final protection order.
458 DVPO
interim protection orders
(1) The Childrens Court may make a DVPO interim protection order for a
child or young person—
(a) if an application for a care and protection order for the child or
young person has been made but not yet finally decided; and
(b) if satisfied that it is necessary to make the DVPO interim protection
order to ensure the child’s or young person’s safety until the
application for the care and protection order is decided.
Note The Childrens Court may make a DVPO interim protection order
before adjourning an application or cross-application under s 430 (Interim
matters—Court action before adjournment).
(2) In considering whether it is necessary to make the DVPO interim
protection order to ensure the child’s or young person’s safety
until the application is decided, the Childrens Court may have regard to the
need to ensure the person against whom the order is made will not engage in
domestic violence in relation to the child or young person.
(3) The Childrens Court may make the DVPO interim protection
order—
(a) on its own initiative; or
(b) on application by a party to the proceeding for the care and
protection order; or
(c) on application by the public advocate.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
Note 3 In the proceeding, a fact is proved if it is proved on the
balance of probabilities (see s 710).
Note 4 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
(4) To remove any doubt, if the Childrens Court makes a DVPO interim
protection order the order must be consistent with this division and the
Domestic Violence and Protection Orders Act 2001.
Example
The Childrens Court could not make a DVPO interim protection order for a
period longer than that allowed for DVPO interim protection orders under the
Domestic Violence and Protection Orders Act 2001.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
459 DVPO
final protection orders
(1) The Childrens Court may make a DVPO final protection order for a child
or young person—
(a) if an application for a care and protection order for the child or
young person has been made but not yet finally decided; and
(b) if satisfied that the person against whom the DVPO final protection
order is proposed to be made—
(i) has engaged in domestic violence in relation to the child or young
person; or
(ii) has engaged in personal violence towards the child or young person
and may engage in personal violence towards the child or young person during the
time for which the order is proposed to be made if the order is not
made.
Note The grounds for making a DVPO final
protection order are intended to mirror the grounds mentioned in the Domestic
Violence and Protection Orders Act 2001, s 40.
(2) The Childrens Court may make the DVPO final protection
order—
(a) on its own initiative; or
(b) on application by a party to the proceeding for the care and
protection order; or
(c) on application by the public advocate.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
Note 3 In the proceeding, a fact is proved if it is proved on the
balance of probabilities (see s 710).
Note 4 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
(3) To remove any doubt, if the Childrens Court makes a DVPO final
protection order the order must be consistent with this division and the
Domestic Violence and Protection Orders Act 2001.
(4) In this section:
personal violence—see the Domestic Violence and
Protection Orders Act 2001, dictionary.
460 What
is psychological abuse of a child or young person?
(1) For this division, a person psychologically abuses a
child or young person if the person—
(a) causes or allows the child or young person to see or hear the
physical, sexual, or psychological abuse of a person with whom the child or
young person lives; or
(b) puts the child or young person, or allows the child or young person to
be put, at risk of seeing or hearing that abuse occurring.
(2) For subsection (1), the person who suffers the abuse is not regarded
as having caused or allowed the child to see or hear the abuse, or, as the case
may be, as having put the child, or allowed the child to be put, at risk of
seeing or hearing the abuse.
(3) To remove any doubt—
(a) a single act may amount to psychological abuse of a child or young
person; and
(b) a number of acts that form part of a pattern of behaviour may amount
to psychological abuse of a child or young person, even though some or all of
the acts, when viewed in isolation, may appear to be minor or trivial.
461 No
DVPO protection order if no proceeding under care and protection
chapters
(1) This section applies if—
(a) someone wants to apply for a DVPO protection order for a child or
young person; and
(b) no application for a care and protection order for the child or young
person has been made.
(2) The person must not apply for a DVPO protection order under this
Act.
(3) To remove any doubt, this section does not stop the person from
applying for a protection order under the Domestic Violence and Protection
Orders Act 2001.
462 Effect
of making DVPO protection order under this Act
(1) A DVPO protection order made under this Act is taken to have been made
under the Domestic Violence and Protection Orders Act 2001.
Examples
1 the DVPO protection order may be amended (including by extension) or
revoked under that Act
2 the provisions about consent orders under that Act apply to the amendment
(including by extension) or revocation of the DVPO protection order
3 the provisions dealing with the end of protection orders under that Act
apply to the DVPO protection order
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The making of the DVPO protection order on an application for a care
and protection order does not affect the validity of the protection
order.
(3) In applying the Domestic Violence and Protection Orders Act
2001, section 13 (Who may apply to amend or revoke a protection order?)
to the DVPO protection order, the public advocate is taken to have been a party
to the application for the DVPO protection order.
(4) In applying the Domestic Violence and Protection Orders Act
2001 to a DVPO protection order, a reference in that Act to domestic
violence is taken to have the meaning given in section 457, definition of
domestic violence.
(5) In applying the Domestic Violence and Protection Orders Act
2001 to a DVPO interim protection order made under this Act—
(a) a reference in that Act to a final order is taken to be a reference to
a care and protection order; and
(b) a reference in that Act to the application or proceeding is taken to
be a reference to the application or proceeding under this Act for which the
DVPO interim protection order was made.
Example—par (a)
The Domestic Violence and Protection Orders Act 2001, s 53 (c)
provides that an interim order ends in certain circumstances when the final
order is made. Applying par (a), the DVPO interim protection order ends
when the care and protection order is made in those circumstances.
Part
14.4 Making care and protection
orders
Notes to pt 14.4
An appraisal order prevails over a care and protection order
(see s 374).
An assessment order prevails over a care and protection order
(see s 440).
463 Care
and protection order—criteria for making
(1) The Childrens Court may make a care and protection order for a child
or young person if the court—
(a) is satisfied that the child or young person is in need of care and
protection; and
(b) has considered the care plan prepared by the chief executive for the
child or young person; and
(c) is satisfied that—
(i) the provisions included in the order are necessary to ensure the care
and protection of the child or young person; and
(ii) making the order is in the best interests of the child or young
person.
(2) The Childrens Court must include in a care and protection order, on
application or its own initiative, any of the following provisions that the
Childrens Court is satisfied is in the best interests of the child or young
person:
(a) a contact provision;
(b) a drug use provision;
(c) an enduring parental responsibility provision;
(d) a mental health tribunal provision;
(e) a residence provision;
(f) a short-term parental responsibility provision;
(g) a long-term parental responsibility provision;
(h) a specific issues provision;
(i) a supervision provision.
(3) However, the Childrens Court must not include in a care and protection
order an enduring parental responsibility provision unless satisfied that the
criteria mentioned in section 481 (Enduring parental responsibility
provision—criteria for making) are met.
(4) Unless the Childrens Court orders otherwise, the chief executive must
give a copy of a care plan provided for a proceeding to each other party to the
proceeding.
(5) The Childrens Court—
(a) must not merely accept the admission of the parties to the proceeding
that the child or young person is in need of care and protection; but
(b) must satisfy itself that the child or young person is in need of care
and protection.
Note 1 In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 2 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
(6) The Childrens Court may include a provision in a care and protection
order on application by a party to the proceeding or on its own
initiative.
(7) If the Childrens Court intends someone to make decisions about where
the child or young person lives, the court must include a residence provision in
the care and protection order.
464 Care
and protection order—length
(1) The Childrens Court must state the length of each provision included
in a care and protection order.
(2) The length of a care and protection order is the length of the longest
provision in the order.
Note 1 The length of parental responsibility provisions is dealt
with in—
(a) for short-term parental responsibility provision—s 475 (not
longer than 2 years); and
(b) for enduring parental responsibility provision—s 480 (until
the child or young person is 18 years old).
Note 2 The length of a care and protection order may be extended
(see s 470).
Part
14.5 Extending, amending and revoking
care and protection orders
465 Care
and protection order—extension and amendment
applications
(1) A person may apply to the Childrens Court for extension or amendment
of a care and protection order, or a provision in a care and protection order,
if the person—
(a) believes on reasonable grounds that the extension or amendment is in
the best interests of the child or young person; and
(b) has the leave of the Childrens Court to make the
application.
(2) The Childrens Court must give leave to someone who was a party to the
proceeding in which the care and protection order was made.
(3) However, the Childrens Court may give leave to someone to apply more
than once in a 12-month period only if satisfied that there has been a
significant change in any relevant circumstances since the care and protection
order was made or last extended or amended.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
466 Care
and protection order—revocation applications
(1) A person may apply to the Childrens Court for revocation of a care and
protection order, or a provision in a care and protection order if the
person—
(a) believes on reasonable grounds that—
(i) the child or young person would not be in need of care and protection
if the order or provision were revoked; or
(ii) the order cannot be administered effectively because of the child or
young person’s persistent refusal to comply with the residence provision
of the order; or
(iii) it is otherwise in the best interests of the child or young person
to revoke the order or provision; and
(b) has the leave of the Childrens Court to make the
application.
(2) The Childrens Court must give leave to someone who was a party to the
proceeding in which the care and protection order was made.
(3) However, the Childrens Court may give leave to someone to apply more
than once in a 12 month period only if satisfied that there has been a
significant change in any relevant circumstances since the care and protection
order was made or last extended or amended.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
467 Care
and protection order—application to state what sought and
grounds
An application for extension, amendment or revocation of a care and
protection order, or a provision in a care and protection order, must
state—
(a) the order or provision proposed to be extended, amended or revoked;
and
(b) how the order or provision is proposed to be extended or amended;
and
(c) the grounds on which the extension, amendment or revocation is
proposed.
468 Care
and protection order—who must be given extension, amendment or
revocation
The applicant for extension, amendment or revocation of a care and
protection order, or a provision in a care and protection order, must give a
copy of the application to the following people at least 3 working days
before the application is to be heard by the court:
(a) each party to the proceeding in which the order was made;
(b) anyone else who was required to be given a copy of the application for
the care and protection order;
(c) the public advocate.
Note Parties to proceedings are dealt with in pt 19.2.
469 Care
and protection order—court to consider extension, amendment and revocation
applications promptly
(1) The Childrens Court must give initial consideration to an application
for extension, amendment or revocation of a care and protection order, or a
provision in a care and protection order not later than 5 working days
after the day the application is filed.
(2) The Childrens Court must give directions about the conduct of the
proceeding (including the hearing of the application) at the time the
application is initially considered.
(3) If the care and protection order is in force on the day the
application is filed, but would end before the application is heard, the order
continues in force until the application is heard and decided (whether or not
the application is considered within the period required under this
section).
470 Care
and protection order—criteria for extensions and
amendments
(1) The Childrens Court may, by order, extend or amend a provision in a
care and protection order if satisfied that extending or amending the order as
proposed is in the best interests of the child or young person.
(2) The court may extend a provision in a care and protection order for as
long as the court considers appropriate.
(3) The court may amend a provision in a care and protection order in any
way the court considers appropriate, including—
(a) substituting a provision with a different provision; or
(b) including an additional provision.
Note 1 The length of a care and protection order may be extended if
the Childrens Court makes an annual review report order about an annual review
report for a child or young person who is subject to a care and protection order
(see pt 14.3).
Note 2 In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 3 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
(4) This section is subject to section 476 (Short-term parental
responsibility provision—extension).
471 Care
and protection order—criteria for revocation
(1) The Childrens Court may, by order, revoke a care and protection order,
or a provision in a care and protection order, if satisfied
that—
(a) the child or young person would not be in need of care and protection
if the order, or the provision in the order, was revoked; or
(b) the order cannot be administered effectively because of the child or
young person’s persistent refusal to comply with the residence provision
of the order; or
(c) it is otherwise in the best interests of the child or young person to
revoke the order or the provision in the order.
Note In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
(2) Before revoking a care and protection order, or a provision in a care
and protection order, the Childrens Court must consider the following
matters:
(a) the age and maturity of the child or young person;
(b) the views and wishes of the child or young person;
(c) the living arrangements of the child or young person;
(d) the risk to the child or young person of harm if the order, or the
provision of the order, is revoked.
472 Care
and protection orders—financial burdens
Unless the Childrens Court orders otherwise, if the court makes a care and
protection order involving a financial cost to a person, the person is
responsible for the cost.
Part
14.6 Parental responsibility
provisions
473 What
is a parental responsibility provision?
In the care and protection chapters:
parental responsibility provision, in a care and protection
order, or interim care and protection order, for a child or young
person—
(a) means a provision about who has a stated aspect of parental
responsibility for the child or young person; and
(b) may, but need not, include 1 or more of the following
directions:
(i) that a stated person has daily care responsibility for the child or
young person;
Note Daily care responsibility is dealt with in s 19. The
person who has daily care responsibility for the child or young person has
responsibility for the following:
(a) deciding where and with whom the child or young person is to
live;
(b) care of the child or young person, including, for example, personal
appearance;
(c) temporary care of the child or young person by someone else (whether
in the ACT or elsewhere);
(d) the people with whom the child or young person may, or must not, have
contact (however, this is subject to a contact provision in the care and
protection order);
(e) daily care about education, training and employment.
(ii) that a stated person has long-term care responsibility for the child
or young person;
Note Long-term care responsibility is dealt with in
s 20.
(iii) that parental responsibility for the child or young person is shared
between stated people;
(iv) that a stated person (including the chief executive) who has
long-term care responsibility for the child or young person must consult with
each other person who shares long-term care responsibility for the child or
young person in making a decision about a long-term matter for the child or
young person;
Examples—decisions about long-term
matters
1 a decision about management of the child or young person’s property
2 long-term decisions about education
(v) that a stated person who has parental responsibility for the child or
young person must exercise the responsibility in a stated way.
Note 1 If a care and protection order is in force for a child or
young person and the chief executive or a police officer believes on reasonable
grounds that someone has contravened the order and because of the contravention,
the child or young person is in danger, the chief executive or police officer
may apply to the Childrens Court for a warrant to have the child or young person
taken into safe custody (see s 684).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
474 Chief
executive sharing daily care responsibility
(1) This section applies if the chief executive shares with another person
daily care responsibility for a child or young person.
(2) No other person with daily care responsibility for the child or young
person may discharge the responsibility in a way that would be incompatible with
the chief executive’s discharge of the responsibility.
Note Usually, if parental responsibility is shared between 2 or more
people, either of them may discharge the responsibility
(see s 18).
Division
14.6.2 Short-term parental
responsibility provisions
475 What
is a short-term parental responsibility provision?
In the care and protection chapters:
short-term parental responsibility provision means a parental
responsibility provision in a care and protection order that is not longer than
2 years.
Note The length of a care and protection order is dealt with in
s 464.
476 Short-term
parental responsibility provision—extension
(1) The Childrens Court may extend a short-term parental responsibility
provision in a care and protection order if satisfied that extending the
provision is in the best interests of the child or young person.
(2) However, for subsection (1) it is a rebuttable presumption that it is
in the best interests of the child or young person for the child or young person
to be subject to a long-term parental responsibility provision
if—
(a) the chief executive has had an aspect of daily care responsibility or
long-term parental responsibility for—
(i) the 2 years immediately before the decision under subsection (1) is
made; or
(ii) a total of more than 2 years in the 3 years immediately before the
decision under subsection (1) is made; and
(b) the child or young person has been living with a stated person under a
care and protection order for—
(i) the 2 years immediately before the decision under subsection (1) is
made; or
(ii) a total of more than 2 years in the 3 years immediately before the
decision under subsection (1) is made.
(3) To rebut the presumption, a person who is a parent of the child or
young person, or someone else who has had parental responsibility for the child
or young person during the term of the order, must satisfy the Childrens Court
that—
(a) the person is likely to be able to resume care of the child or young
person during the period of extension; and
(b) it is in the best interests of the child or young person for the
person to resume care of the child or young person during the period of
extension.
(4) In subsection (2):
stated person means—
(a) the carer under the care and protection order; or
(b) one parent to the exclusion of another parent; or
(c) a family member who is not a parent.
Note 1 A short-term parental responsibility provision may be
extended, amended or revoked under pt 14.5.
Note 2 If an application has been made to the Childrens Court for a
care and protection order and the application is adjourned, any parental
responsibility provision that is in force at the time of the adjournment may be
extended until the end of the adjournment or revoked
(see s 430).
477 Short-term
parental responsibility provision—financial
contribution
(1) This section applies if the Childrens Court includes a short-term
parental responsibility provision in a care and protection order for a child or
young person and the provision—
(a) transfers parental responsibility for the child or young person to the
chief executive; or
(b) shares parental responsibility for the child or young person with the
chief executive.
(2) The court may order a parent of the child or young person to pay an
amount (the contribution) to the chief executive as a contribution
to the cost of the care of the child or young person.
(3) In deciding the amount of the contribution, the court must have regard
to the financial circumstances of the parent.
(4) The contribution is a debt due and payable to the Territory.
Division
14.6.3 Long-term parental
responsibility provisions
478 What
is a long-term parental responsibility provision?
In the care and protection chapters:
long-term parental responsibility provision means a parental
responsibility provision in a care and protection order that—
(a) is in force until the child or young person is 18 years old;
and
(b) transfers daily care responsibility and long-term care responsibility
for the child or young person to the chief executive or another stated person,
unless the order states that a particular aspect of responsibility is
transferred.
Example
A parental responsibility provision that transfers daily care
responsibility for a child or young person to the chief executive until the
child or young person is 18 years old but does not transfer long-term care
responsibility to the chief executive.
Note 1 The length of a care and protection order is dealt with in
s 464.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
479 Long-term
parental responsibility provision—financial contribution by
parents
(1) This section applies if the Childrens Court includes a long-term
parental responsibility provision in a care and protection order for a child or
young person and the provision—
(a) transfers parental responsibility for the child or young person to the
chief executive; or
(b) shares parental responsibility for the child or young person with the
chief executive.
(2) The Childrens Court may order a parent of the child or young person to
pay an amount (the contribution) to the chief executive as a
contribution to the cost of the care of the child or young person.
(3) In deciding the amount of the contribution, the Childrens Court must
have regard to the financial circumstances of the parent.
(4) The contribution is a debt due and payable to the Territory.
Division
14.6.4 Enduring parental
responsibility provisions
480 What
is an enduring parental responsibility provision?
(1) In the care and protection chapters:
enduring parental responsibility provision means a parental
responsibility provision in a care and protection order that—
(a) transfers daily care responsibility and long-term care responsibility
for the child or young person to a stated person; and
(b) does not transfer parental responsibility to the chief executive;
and
(c) is in force until the child or young person is 18 years old.
Note The length of a care and protection order is dealt with in
s 464.
(2) To remove any doubt, an enduring parental responsibility provision is
taken to include a residence provision that authorises the stated person to
decide where and with whom a child or young person must live.
481 Enduring
parental responsibility provision—criteria for making
(1) The Childrens Court may, on application or on its own initiative,
include an enduring parental responsibility provision in a care and protection
order for a child or young person if—
(a) no-one with parental responsibility for the child or young person
(other than under a care and protection order) has had care of the child or
young person for—
(i) the 2 years immediately before the order is made, or
(ii) a total of at least 2 years in the 3 years immediately before
the order is made; and
(b) the child or young person has been living with a stated person under a
care and protection order for—
(i) the 2 years immediately before the order is made, or
(ii) a total of more than 2 years in the 3 years immediately
before the order is made; and
(c) the court is satisfied that—
(i) no-one with parental responsibility for the child or young person
(other than under a care and protection order) (a previous
carer) is willing or able to exercise daily care responsibility or
long-term care responsibility for the child or young person; or
(ii) it is not in the best interests of the child or young person for a
previous carer to exercise those responsibilities for the child or young person;
and
(d) the court is satisfied that—
(i) it is unlikely that a previous carer of the child or young person will
be willing or able to exercise daily care responsibility or long-term care
responsibility for the child or young person before the child or young person is
18 years old; or
(ii) it is unlikely that it would be in the best interests of the child or
young person for a previous carer to exercise those responsibilities for the
child or young person before the child or young person is 18 years old;
and
(e) the court is satisfied that the stated person is willing and able to
exercise daily care responsibility or long-term care responsibility for the
child or young person; and
(f) the court is satisfied that including the provision is the best way to
meet the child’s or young person’s need for emotional security in
the long-term; and
(g) for an Aboriginal or Torres Strait Islander child or young
person—the court has given any Aboriginal or Torres Strait Islander person
or organisation that has provided ongoing support services to the child or young
person and his or her family a reasonable opportunity to provide a written
report about the making of the proposed provision.
(2) In this section:
stated person means the person to whom the court proposes to
transfer daily care responsibility and long-term care responsibility for the
child or young person under the proposed enduring parental responsibility
provision.
Note 1 An enduring parental responsibility provision may be amended
or revoked under pt 14.5.
Note 2 In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 3 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
482 Enduring
parental responsibility provision—financial
contribution
(1) This section applies if—
(a) the Childrens Court includes an enduring parental responsibility
provision in a care and protection order for a child or young person;
and
(b) immediately before the order was made, the chief executive had daily
care responsibility for the child or young person.
(2) The chief executive may provide financial or other assistance to the
person to whom the provision transfers parental responsibility for the child or
young person.
Part
14.7 Residence
provisions
483 What
is a residence provision?
In the care and protection chapters:
residence provision, in a care and protection order, or an
interim care and protection order, for a child or young person—
(a) means a provision—
(i) about where or with whom a child or young person must live;
or
(ii) authorising a person to decide where or with whom a child or young
person must live; and
(b) may include 1 or more of the following directions:
(i) that a stated person must not live at the same premises as the child
or young person (including that the stated person must stop living at those
premises);
(ii) that a stated person may live with the child or young person only
subject to stated conditions.
Example—stated
condition
that the stated person must undertake an anger management program
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
14.8 Contact
provisions
484 What
is a contact provision?
In the care and protection chapters:
contact provision, in a care and protection order, or an
interim care and protection order, for a child or young person means a
provision—
(a) about who may, or must not, have contact with the child or young
person; or
(b) authorising the chief executive or another person to decide with whom
the child or young person may have contact and to decide any conditions for the
contact.
Examples—decisions and
conditions
1 that a child may have contact with a stated person for at least 4 hours
each week if the person complies with the drug use provision in the
order
2 that a young person may have supervised contact with a stated person
twice each week as arranged by the chief executive
3 that a child may have contact with a stated person in accordance with a
care plan
Note 1 Contact, with a person, is defined in
s 347.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
485 Contact
provision—presumption about contact with family
(1) This section applies if someone applies for a contact provision to be
included in a care and protection order for a child or young person.
(2) There is a rebuttable presumption that it is in the best interests of
the child or young person for the child or young person to have contact with a
person with parental responsibility for the child or young person or his or her
siblings.
486 Contact
provision—sibling may join proceeding without leave
If someone applies for a contact provision to be included in a care and
protection order for a child or young person, a sibling of the child or young
person does not need the leave of the Childrens Court to be joined as a party to
the proceeding on the application.
Part
14.9 Drug use
provisions
487 What
is a drug use provision?
In the care and protection chapters:
drug use provision, for a stated person, in a care and
protection order, or an interim care and protection order, for a child or young
person means a provision about usage of drugs by the stated person that includes
1 or more of the following directions:
(a) that the stated person must not use a stated drug;
(b) that the stated person may use a stated drug only in accordance with
the conditions in the provision;
(c) that the stated person undergo drug testing as directed by the chief
executive in accordance with the drug testing standards.
Note The Minister may make drug testing
standards under s 886.
Part
14.10 Supervision
provisions
488 What
is a supervision provision?
(1) In the care and protection chapters:
supervision provision, in a care and protection order, or an
interim care and protection order, for a child or young person, means a
provision placing the child or young person, for the period stated in the order,
under the supervision of the chief executive.
Note If a care and protection order including a supervision
provision is in force for the child or young person for longer than
6 months, the chief executive must prepare an annual review report for the
child or young person (see pt 14.13).
(2) A supervision provision may, but need not, include 1 or more of the
following requirements:
(a) that 1 or more of the following people must report to the chief
executive at the reasonable times and places stated by the chief
executive:
(i) the child or young person;
(ii) a parent of the child or young person;
(iii) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(b) that 1 or more of the following people must take part in discussions
with the chief executive about the child’s or young person’s care,
wellbeing or development:
(i) the child or young person;
(ii) a parent of the child or young person;
(iii) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
Example—discussion about care,
wellbeing or development
a discussion about whether the child or young person should undertake some
form of education, vocational or recreational activity
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(c) that a person with parental responsibility for the child or young
person allow the chief executive entry to stated premises for the purpose of
supervising the care and protection of the child or young person.
(3) Subsection (2) does not limit the matters for which the Childrens
Court may make a supervision provision.
489 Supervision
provision—meetings with chief executive
If a care and protection order including a supervision provision is in
force for a child or young person, the chief executive may meet and talk with
the child or young person alone or otherwise.
Part
14.11 Mental health tribunal
provisions
490 What
is a mental health tribunal provision?
In this Act:
mental health tribunal provision, in a care and
protection order, or an interim care and protection order, for a child or young
person means a provision directing the child or young person to submit to the
jurisdiction of the mental health tribunal to allow the
tribunal—
(a) to decide whether the child or young person has a mental illness or
mental dysfunction; and
(b) if the tribunal decides that the child or young person has a mental
illness or mental dysfunction—to make recommendations to the Childrens
Court about how the child or young person should be dealt with.
Part
14.12 Specific issues
provisions
491 What
is a specific issues provision?
In this Act:
specific issues provision, in a care and protection order, or
an interim care and protection order, for a child or young person means a
provision about the care and protection of the child or young person that
includes 1 or more of the following directions:
(a) that a stated entity must do a stated thing;
(b) that a stated entity must not do a stated thing;
(c) that a stated entity must comply with a stated condition.
Examples—directions to do a stated
thing
1 that a parent of the child or young person attend a stated parenting
course
2 that a stated individual or body give to the chief executive stated oral
or written information about the care, wellbeing or development of a child or
young person
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Part
14.13 Annual review
reports—parental responsibility provisions and supervision
provisions
492 What
is a reviewable care and protection order?
In this chapter:
reviewable care and protection order means a care and
protection order that is in force, if the order—
(a) has been in force for longer than 6 months; and
(b) includes—
(i) a parental responsibility provision giving parental responsibility for
the child or young person to the chief executive; or
Note Parental responsibility provisions are dealt with in pt
14.6.
(ii) a supervision provision.
Note Supervision provisions are dealt with in pt 14.10.
493 What
is an annual review report?
In this chapter:
annual review report, for a reviewable care and protection
order, means a report about—
(a) the circumstances and living arrangements of the child or young person
who is the subject of the care and protection order; and
(b) whether the chief executive considers the existing arrangements for
the care and protection of the child or young person are in the best interests
of the child or young person.
494 Annual
review report—prepared at least annually
The chief executive must prepare an annual review report for a reviewable
care and protection order for a child or young person—
(a) each year; or
(b) if the order is in force for less than 1 year—at least
1 month, but not earlier than 2 months, before the order
expires.
495 Annual
review report—consultation
(1) This section applies if the chief executive is preparing an annual
review report for a child or young person.
(2) Before the chief executive finalises the report, the chief executive
must, as far as is practicable and if the chief executive considers it is in the
child’s or young person’s best interests, arrange a meeting with the
following people to discuss the matters that the chief executive proposes to
include in the report:
(a) if the chief executive is satisfied that the child or young person can
understand and take part in the meeting—the child or young
person;
(b) each person who has daily care responsibility or long-term care
responsibility for the child or young person;
(c) if the child is placed in out-of-home care—the out-of-home
carers for the child or young person;
(d) if the child or young person is placed with a foster carer—the
foster care service for the foster carer;
(e) anyone else the chief executive considers appropriate.
Example—par (2)
(e)
The public advocate
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(3) The matters discussed at the meeting may include sensitive
information.
Note Sensitive information is defined in
s 844.
496 Annual
review report—must be given to certain people
(1) The chief executive must give an annual review report for a care and
protection order for a child or young person to each of the following
people:
(a) the child or young person;
(b) each person who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(c) each kinship carer or foster carer caring for the child or young
person;
(d) the public advocate;
(e) the Childrens Court.
Note If a provision requires a person to act in relation to a parent
of a child or young person, the person is not required to act in relation to the
parent if the person cannot after reasonable inquiry find the parent
(see s 21).
(2) The chief executive may also give the annual review report to someone
else so that the other person can give the report to a person mentioned in
subsection (1).
(3) Before giving an annual review report to someone mentioned in
subsection (1) (a), (b) or (c) or subsection (2), the chief
executive may make minor alterations to the report to protect the privacy and
confidentiality of a person named in the report.
497 Annual
review report—application for waiver of obligation to give report to
someone
(1) The chief executive may apply to the Childrens Court for an order
waiving the need to give an annual review report about a child or young person
to someone mentioned in section 496 (1) (a), (b) or (c)
(a waiver order) if the chief executive considers that giving
the report to the person would not be in the best interests of the child or
young person.
(2) The chief executive must give a copy of the application to each person
mentioned in section 496 (1).
498 Annual
review report—waiver of obligation to give annual review report to
someone
(1) This section applies if the Childrens Court has received an
application for a waiver order.
(2) The application may be heard in the absence of a party.
(3) The Childrens Court must make the waiver order if satisfied that
giving the annual review report to the person mentioned in the application would
not be in the best interests of the child or young person.
(4) If the court is not satisfied under subsection (3), the
court—
(a) must order the chief executive to give the person mentioned in the
application with a copy of the annual review report, either in full or in part;
and
(b) may make any other order about the provision of the annual review
report that the court considers appropriate.
499 Annual
review report—public advocate may require chief executive to give annual
review report to someone
(1) This section applies if the chief executive—
(a) must give an annual review report to someone under
section 496 (1) (Annual review report—must be given to certain
people); and
(b) has not given the report to the person; and
(c) has not obtained a waiver order for the person.
(2) The public advocate may apply to the Childrens Court for an order
requiring the chief executive to give the annual review report to the person (an
annual review report order).
(3) The public advocate must give the chief executive a copy of the
application promptly after the application is filed.
(4) The Childrens Court may make an annual review report order.
(5) If the court makes an annual review report order, the chief executive
must give the annual review report to the person not later than 14 days
after the day the court makes the order.
500 Annual
review report—extension of care and protection order
(1) This section applies if the Childrens Court makes an annual review
report order about an annual review report for a child or young person who is
subject to a care and protection order.
(2) If the care and protection order ends less than 1 month after the
day the annual review report order is made, the court may extend the length of
the care and protection order so that it ends not more than 1 month after
the day the annual review report order is made.
Chapter
15 Care and protection—chief
executive has aspect of parental responsibility
Note to ch 15
Parental responsibility for a child or young person may be transferred to,
or shared with, the chief executive under any of the following
(see s 17 and s 18):
• an appraisal order including a temporary parental responsibility
provision (see s 372)
• a voluntary care agreement (see pt 12.3)
• emergency action (see pt 13.1)
• a care and protection order including a parental responsibility
provision (see pt 14.6)
• a safe custody warrant (see s 682)
• a court order (under this Act or another law in force in the
Territory)
• a provision of another law in force in the Territory.
In this Act:
foster carer—see section 509.
foster care service—see section 514.
general parental authority—see section 514.
in therapeutic protection—see section 571.
kinship carer—see section 508.
out-of-home carer—see section 507.
out-of-home carer authorisation—see section
514.
residential care service—see section
510.
specific parental authority—see section 514.
502 Chief
executive may provide assistance
(1) If the chief executive has parental responsibility for a child or
young person, the chief executive may provide any of the following for the child
or young person:
(a) placement with an out-of-home carer;
(b) financial support;
(c) counselling;
(d) appropriate education, training and employment
opportunities;
(e) health care treatment;
(f) recreational opportunities;
(g) a care plan;
(h) an explanation, in a way the child or young person can understand, of
the aim of care plans.
(2) If the chief executive stops having parental responsibility for a
child or young person (for any reason), the chief executive may arrange for
financial or other assistance to be provided to, or for, the child or young
person on the conditions the chief executive considers
appropriate.
Part
15.2 Chief executive has long-term
care responsibility
503 Chief
executive sharing long-term care responsibility
(1) This section applies if the chief executive—
(a) shares with another person long-term care responsibility for a child
or young person; and
(b) under a parental responsibility provision is required to consult with
each other person who shares long-term care responsibility for the child or
young person in making a decision about a long-term matter for the child or
young person.
(2) If another person who has long-term care responsibility for the child
or young person disagrees with the chief executive’s proposed decision
about a long-term matter for the child or young person—
(a) the person or the chief executive may apply to the Childrens Court for
an order about the matter; and
(b) the chief executive must not make the decision without the
person’s agreement.
Note Usually, if parental responsibility is shared between 2 or more
people, either of them may discharge the responsibility
(see s 18).
504 Chief
executive must consult about long-term care
If the chief executive has long-term care responsibility for a child or
young person, the chief executive must, as far as practicable, have regard to
the views and wishes of any person who previously had long-term care
responsibility for the child or young person.
Note Under s 20, long-term care responsibility includes
responsibility for making decisions about the following matters for the child or
young person:
(a) the administration, management and control of the child’s or
young person’s property;
(b) religion and observance of racial, ethnic, religious or cultural
traditions;
(c) the issuing (and opposing the issuing) of a passport for the child or
young person;
(d) long-term care about education, training and employment.
Part
15.3 Chief executive has daily care
responsibility
505 Pt
15.3 applies to care and protection chapters
(1) This part applies if the chief executive has daily care responsibility
for a child or young person under the care and protection chapters.
Note Parental responsibility for a child or young person may be
transferred to, or shared with, the chief executive under the following
provisions (see s 17 and s 18):
• an appraisal order including a
temporary parental responsibility provision (see s 372)
• a voluntary care agreement (see pt
12.3)
• emergency action (see pt 13.1)
• a care and protection order including a
parental responsibility provision (see pt 14.6)
• a safe custody warrant
(see s 682)
• a court order (under this Act or
another law in force in the Territory)
• a provision of another law in force in
the Territory.
(2) However, this part does not apply if daily care responsibility for a
child or young person is transferred to the chief executive—
(a) under a therapeutic protection order or an interim therapeutic
protection order; or
(b) because the child has been confined at a therapeutic protection place
under s 530 (b) (Therapeutic protection only under therapeutic
protection order or for emergency protection).
Note Therapeutic protection orders are dealt with in pt 16.2.
Interim therapeutic protection orders are dealt with in div 16.2.3.
506 Public
advocate to be told about action following appraisals
(1) This section applies if—
(a) the chief executive decides that a child concern report about a child
or young person is a child protection report; and
(b) because of the report, the chief executive carries out a child
protection appraisal for the child or young person; and
(c) at the time of the incident that gave rise to the report, the chief
executive had daily care responsibility for the child or young person and had
placed the child or young person with an out-of-home carer under part 15.4;
and
Note 1 The chief executive may have
daily care responsibility for a child or young person under any of the following
provisions:
(a) an appraisal order including a temporary parental responsibility
provision (see s 372);
(b) a voluntary care agreement (see pt 12.3);
(c) emergency action (see pt 13.1);
(d) a care and protection order including a parental responsibility
provision (see pt 14.6).
Note 2 If the chief executive has daily
care responsibility for a child or young person, the chief executive must place
the child or young person with an out-of-home carer (see pt
15.4).
(d) the incident that gave rise to the report either—
(i) involved the out-of-home carer; or
(ii) happened while the child or young person was taking part in a contact
visit with someone and the contact was—
(A) allowed under a contact provision in a care and protection order;
or
Note Contact provisions are dealt with in pt 14.8.
(B) approved by the chief executive.
(2) The chief executive must give the public advocate a report
about—
(a) the incident; and
(b) what action (if any) the chief executive has taken because of the
appraisal.
Part
15.4 Out-of-home
carers
Division
15.4.1 Placement with out-of-home
carer
507 Who
is an out-of-home carer?
In this Act:
out-of-home carer, for a child or young person,
means—
(a) a kinship carer for the child or young person; or
(b) a foster carer for the child or young person; or
(c) a residential care service for the child or young person.
508 Who
is a kinship carer?
In this Act:
kinship carer, for a child or young person, means a
person—
(a) authorised by the chief executive under section 515
(Authorisation of kinship carer—specific parental authority) for the child
or young person; and
(b) with whom the chief executive has placed the child or young person
under section 511 (Chief executive may place child or young person with
out-of-home carer).
509 Who
is a foster carer?
In this Act:
foster carer, for a child or young person, means a person
authorised by the chief executive under—
(a) section 517 (Authorisation of foster carer—specific
parental authority); or
(b) section 518 (Authorisation of foster carer—general parental
authority).
510 What
is a residential care service?
In this Act:
residential care service, for a child or young person, means
an entity authorised by the chief executive under section 519
(Authorisation of residential care service—general parental
authority).
511 Chief
executive may place child or young person with out-of-home
carer
(1) If the chief executive has daily care responsibility for a child or
young person, the chief executive may place the child or young person with an
out-of-home carer.
(2) If the chief executive is placing an Aboriginal or Torres Strait
Islander child or young person with an out-of-home carer, the placement must be
in accordance with section 512.
Note An authorised person may, at any reasonable time, enter
premises where a child or young person is living if the chief executive has
placed the child or young person with an out-of-home carer under this section
and the purpose of the entry is to ensure that the child or young person is
being properly cared for (see s 814).
512 Priorities
for placement with out-of-home carer—Aboriginal or Torres Strait Islander
child or young person
(1) If the chief executive is placing an Aboriginal or Torres Strait
Islander child or young person with an out-of-home carer under section 511,
the chief executive must place the child or young person with the first of the
options mentioned in subsection (2) that—
(a) is available; and
(b) to which the child or young person does not object; and
(c) is consistent with any Aboriginal or Torres Strait Islander cultural
plan in force for the child or young person.
(2) The chief executive may place an Aboriginal or Torres Strait Islander
child or young person with any of the following out-of-home carers:
(a) a kinship carer;
(b) a foster carer who is a member of the child’s or young
person’s Aboriginal or Torres Strait Islander community in a relationship
of responsibility for the child or young person according to local custom and
practice;
(c) a foster carer who is a member of the child’s or young
person’s community;
(d) an Aboriginal or Torres Strait Islander foster carer;
(e) a non-Aboriginal or Torres Strait Islander foster carer
who—
(i) the chief executive believes on reasonable grounds is sensitive to the
child’s or young person’s needs; and
(ii) the chief executive believes on reasonable grounds is capable of
promoting the child’s or young person’s ongoing contact with the
child’s or young person’s Aboriginal or Torres Strait Islander
family, community and culture; and
(iii) if family reunion or continuing contact with the child’s or
young person’s Aboriginal or Torres Strait Islander family, community or
culture is a consideration in the placement—lives near the child’s
or young person’s Aboriginal or Torres Strait Islander family or
community.
(3) In this section:
Aboriginal or Torres Strait Islander cultural plan, for an
Aboriginal or Torres Strait Islander child or young person, means a care plan
developed for the child or young person by the chief executive under
section 454 (What is a care plan?) that includes proposals for the
preservation and enhancement of the identity of the child or young
person.
513 Residential
care service may accommodate child or young person at place of
care
A residential care service may, but need not, accommodate a child or young
person at a place of care.
Note 1 The Minister may approve a place as a place of care for this
Act under s 524.
Note 2 An authorised person may, at any reasonable time, enter
premises where a child or young person is living if the chief executive has
placed the child or young person with an out-of-home carer under s 511
(Chief executive may place child or young person with out-of-home carer) and the
purpose of the entry is to ensure that the child or young person is being
properly cared for (see s 814).
Note 3 An official visitor also inspects places of care and handles
complaints made by children and young people who are placed with a residential
care service and accommodated at a place of care (see pt 2.3).
Division
15.4.2 Authorisation of out-of-home
carers and approval of places of care
In this Act:
foster care service means an entity that—
(a) recruits people to become foster carers; and
(b) provides support for foster carers; and
(c) is authorised by the chief executive under section 516 (Authorisation
of foster care service).
general parental authority means—
(a) for a foster carer—an authorisation under section 518
(Authorisation of foster carer—general parental authority); or
(b) for a residential care service—an authorisation under
section 519 (Authorisation of residential care service—general
parental authority).
out-of-home carer authorisation means an authorisation
of—
(a) a person as a kinship carer under section 515; or
(b) a person as a foster carer under—
(i) section 517 (Authorisation of foster carer—specific
parental authority); or
(ii) section 518 (Authorisation of foster carer—general
parental authority); or
(c) an entity as a residential care service under section 519
(Authorisation of residential care service—general parental
authority).
specific parental authority means—
(a) for a kinship carer—an authorisation under section 515;
or
(b) for a foster carer—an authorisation under section 517
(Authorisation of foster carer—specific parental authority).
515 Authorisation
of kinship carer—specific parental authority
(1) This section applies if the chief executive has daily care
responsibility or long-term care responsibility for a child or young
person.
(2) The chief executive may authorise, orally or in writing, a family
member, or significant person, of the child or young person to exercise the
daily care or long-term care responsibility for the chief executive.
(3) However, the chief executive may authorise a family member, or
significant person, only if satisfied that the family member or significant
person—
(a) is a suitable entity to exercise the responsibility for the child or
young person; and
Note Suitable entities are dealt with in
s 61.
(b) agrees to exercise the responsibility for the chief
executive.
(4) The family member or significant person must exercise the
responsibility subject to any directions of the chief executive.
(5) An authorisation under this section has effect only during a placement
of the child or young person with the family member or significant person under
section 511 (Chief executive may place child or young person with out-of-home
carer).
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 A decision under this section is a reviewable decision
(see s 838).
516 Authorisation
of foster care service
The chief executive may authorise an entity to be a foster care service if
satisfied that the entity—
(a) is a suitable entity to facilitate foster care services; and
(b) complies with, and is likely to continue to comply with, the
out-of-home care standards.
Note 1 Suitable entities are dealt with in s 61.
Note 2 The Minister may make out-of-home care standards under
s 886.
Note 3 A decision under this section is a reviewable decision
(see s 838).
517 Authorisation
of foster carer—specific parental authority
(1) This section applies if the chief executive has daily care
responsibility or long-term care responsibility for a child or young
person.
(2) The chief executive may authorise, orally or in writing, a person to
exercise the daily care or long-term care responsibility for the chief
executive.
(3) However, the chief executive may authorise a person only if satisfied
that the person agrees to exercise the responsibility for the chief
executive.
(4) The person must exercise the responsibility subject to any directions
of the chief executive.
(5) An authorisation under this section has effect only during a placement
of the child or young person with the foster carer under section 511 (Chief
executive may place child or young person with out-of-home carer).
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 A decision under this section is a reviewable decision
(see s 838).
518 Authorisation
of foster carer—general parental authority
(1) The chief executive may authorise, orally or in writing, a
person—
(a) to exercise daily care responsibility for any child or young person
for whom the chief executive has daily care responsibility; or
(b) to exercise long-term care responsibility for any child or young
person for whom the chief executive has long-term care responsibility.
(2) However, the chief executive may authorise a person only if satisfied
that the person—
(a) is a suitable entity to exercise the responsibility for any child or
young person; and
Note Suitable entities are dealt with in
s 61.
(b) has given the chief executive suitability information required by the
chief executive about each other adult member of the person’s household.
(3) The person must exercise the responsibility subject to any directions
of the chief executive.
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 A decision under this section is a reviewable decision
(see s 838).
519 Authorisation
of residential care service—general parental
authority
(1) The chief executive may authorise, in writing, an entity to
exercise—
(a) daily care responsibility for any child or young person for whom the
chief executive has daily care responsibility; or
(b) long-term care responsibility for any child or young person for whom
the chief executive has long-term care responsibility.
(2) However, the chief executive may authorise an entity only if satisfied
that the entity—
(a) is a suitable entity to exercise the responsibility for any child or
young person; and
Note Suitable entities are dealt with in
s 61.
(b) complies with, and is likely to continue to comply with, the
out-of-home care standards; and
Note The Minister may make out-of-home
care standards under s 886.
(c) agrees to exercise the responsibility for the chief executive for any
child or young person.
(3) The entity must exercise the responsibility subject to any directions
of the chief executive.
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 A decision under this section is a reviewable decision
(see s 838).
520 Out-of-home
carer must be given copy of authorisation and any relevant court
orders
(1) If the chief executive orally authorises a person or entity as an
out-of-home carer, the chief executive must also, as soon as practicable,
authorise the person or entity in writing.
(2) If the chief executive authorises, in writing, a person or entity as
an out-of-home carer, the chief executive must give the person or entity a copy
of—
(a) the authorisation; and
(b) any relevant court order about the child or young person.
521 Revocation
of foster care service’s authorisation
(1) The chief executive may revoke an entity’s authorisation under
section 516 as a foster care service if the chief executive is satisfied
that the entity—
(a) is not a suitable entity to facilitate foster care services;
or
(b) has not complied with, or continued to comply with, the out-of-home
care standards.
(2) The chief executive may also revoke an entity’s authorisation if
the entity asks the chief executive to revoke the authorisation.
(3) Before revoking an entity’s authorisation under subsection (1),
the chief executive must—
(a) give the entity written notice of the chief executive’s
intention to revoke the authorisation, including the chief executive’s
reasons; and
(b) tell the entity that the person may make a submission, in writing, to
the chief executive about the notice not later than 14 days after the day
the notice is given to the person; and
(c) if the entity makes a submission—consider the
submission.
(4) After considering any submission, the chief executive may consider any
other relevant matter and must decide to either—
(a) revoke the authorisation; or
Note A decision under this paragraph is
a reviewable decision (see s 838).
(b) revoke the notice of intention to revoke.
(5) This section is in addition to the Legislation Act, section 180
(Power to make decision includes power to reverse or change).
Note Under the Legislation Act, s 180, power given by a law to
make a decision includes power to reverse or change the decision. The power to
reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
522 Revocation
of foster carer’s authorisation
(1) The chief executive may revoke a person’s authorisation under
section 518 as a foster carer if satisfied that the person—
(a) is not a suitable entity to have responsibility for any child or young
person; or
(b) has not adequately cared for or protected the child or young person;
or
(c) has failed to comply with a direction of the chief executive in
exercising daily care or long-term care responsibility for any child or young
person.
Note Fail includes refuse, see
the Legislation Act, dict, pt 1.
(2) The chief executive may also revoke a person’s authorisation if
the person asks the chief executive to revoke the authorisation.
(3) Before revoking a person’s authorisation under subsection (1),
the chief executive must—
(a) give the person written notice of the chief executive’s
intention to revoke the authorisation, including the chief executive’s
reasons; and
(b) tell the person that the person may make a submission, in writing, to
the chief executive about the notice not later than 14 days after the day
the notice is given to the person; and
(c) if the entity makes a submission—consider the
submission.
(4) After considering any submission, the chief executive may consider any
other relevant matter and must decide to either—
(a) revoke the authorisation; or
Note A decision under this paragraph is
a reviewable decision (see s 838).
(b) revoke the notice of intention to revoke.
(5) This section is in addition to the Legislation Act, section 180
(Power to make decision includes power to reverse or change).
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 An authorised person may, at any reasonable time, enter
premises where a child or young person is living if the chief executive has
placed the child or young person with an out-of-home carer under s 511
(Chief executive may place child or young person with out-of-home carer) and the
purpose of the entry is to ensure that the child or young person is being
properly cared for (see s 814).
523 Revocation
of residential care service’s authorisation
(1) The chief executive may revoke an entity’s authorisation under
section 519 as a residential care service if satisfied that the
entity—
(a) is not a suitable entity to have daily care responsibility for any
child or young person; or
(b) has not adequately cared for or protected the child; or
(c) has not complied with the out-of-home care standards.
Note The Minister may make out-of-home
care standards under s 886.
(2) The chief executive may also revoke an entity’s authorisation if
the entity asks the chief executive to revoke the authorisation.
(3) Before revoking an entity’s authorisation under subsection (1),
the chief executive must—
(a) give the entity written notice of the chief executive’s
intention to revoke the authorisation, including the chief executive’s
reasons; and
(b) tell the entity that the entity may make a submission, in writing, to
the chief executive about the notice not later than 14 days after the day
the notice is given to the entity; and
(c) if the entity makes a submission—consider the
submission.
(4) After considering any submission, the chief executive may consider any
other relevant matter and must decide to either—
(a) revoke the authorisation; or
Note A decision under this paragraph is
a reviewable decision (see s 838).
(b) revoke the notice of intention to revoke.
(5) This section is in addition to the Legislation Act, section 180
(Power to make decision includes power to reverse or change).
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 An authorised person may, at any reasonable time, enter
premises where a child or young person is living if the chief executive has
placed the child or young person with an out-of-home carer under s 511 (Chief
executive may place child or young person with out-of-home carer) and the
purpose of the entry is to ensure that the child or young person is being
properly cared for (see s 814).
Note 3 An official visitor also inspects places of care and handles
complaints made by children and young people who are placed with a residential
care service and accommodated at a place of care (see pt 2.3).
524 Approval
of places of care
(1) The Minister may approve a place operated by a residential care
service as a place of care for this Act if satisfied that—
(a) the residential care service complies with, and is likely to continue
to comply with, the out-of-home care standards; and
(b) the place complies with, and is likely to continue to comply with, the
out-of-home care standards.
Note 1 The Minister may make out-of-home care standards under
s 886.
Note 2 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 3 A decision under this section is a reviewable decision
(see s 838).
(2) The Minister may ask the residential care service to allow the chief
executive to inspect the place where the residential care service proposes to
operate the place of care.
Note An authorised person may, at any reasonable time, enter a place
operated by a residential care service if the Minister
is deciding whether to approve the place as a place of care under this section
and has asked the residential care service to allow the chief executive to
inspect the place and the residential care service has agreed to allow the chief
executive to inspect the place (see s 816).
(3) If the Minister asks the residential care service to allow the chief
executive to inspect the place but the residential care service does not allow
the chief executive to inspect the place, the Minister need not decide whether
to approve the place as a place of care.
(4) An approval remains in force until revoked by the Minister.
(5) If the Minister approves a place operated by a residential care
service as a place of care, the residential care service may care for and
accommodate children and young people at the place.
(6) An approval is a notifiable instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 An authorised person may, at any reasonable time, enter
premises where a child or young person is living if the chief executive has
placed the child or young person with an out-of-home carer under s 511
(Chief executive may place child or young person with out-of-home carer) and the
purpose of the entry is to ensure that the child or young person is being
properly cared for (see s 814).
Note 3 An official visitor also inspects places of care and handles
complaints made by children and young people who are placed with a residential
care service and accommodated at a place of care (see pt 2.3).
Division
15.4.3 Information to be kept by
foster carers and residential care services
525 Definitions—div
15.4.3
In this division:
care entities, for a child or young person for a placement,
means the following entities:
(a) for a child or young person placed with a foster
carer—
(i) the foster carer; and
(ii) the foster care service supporting the foster carer;
(b) for a child or young person placed with a residential care
service—the residential care service.
personal information, about a child or young
person—
(a) means all protected information about the child or young person;
and
(b) includes the following items:
(i) the birth certificate for the child or young person;
(ii) school reports about the child or young person;
(iii) medical reports about the child or young person;
(iv) photographs of the child or young person.
placement, for a child or young person, means placement of
the child or young person by the chief executive with a foster carer or a
residential care service under section 511 (Chief executive may place child
or young person with out-of-home carer).
526 Information
must be kept during placement
(1) This section applies if the chief executive places a child or young
person with a foster carer or a residential care service under section 511
(Chief executive may place child or young person with out-of-home
carer).
(2) Each care entity for the child or young person for the placement, must
keep the following things during the placement:
(a) personal information about the child or young person that the care
entity possesses because of the placement;
(b) records made by the care entity about the child or young person
because of the placement.
527 Information
must be kept after placement ends
(1) This section applies if a care entity for a child or young person for
a placement keeps personal information or records under
section 526.
(2) The care entity must keep the personal information or records until
the care entity gives the personal information or records to the chief executive
under subsection (3).
(3) The care entity must give the personal information or records to the
chief executive if—
(a) the chief executive asks the care entity to give the personal
information or records to the chief executive; or
(b) the care entity stops being a care entity for this Act; or
(c) 2 years have elapsed since the placement ended; or
(d) the person to whom the personal information or records relate becomes
an adult.
(4) If personal information or records are given to the chief executive
under subsection (3), the personal information or records are a record of
an agency.
(5) In this section:
record, of an agency—see the Territory Records Act
2002, section 9 (Meaning of record of an agency).
528 Child
or young person must have access to information
(1) This section applies if—
(a) a care entity for a child or young person for a placement keeps
personal information or records under section 526; and
(b) the care entity has not given the personal information or records to
the chief executive under section 527.
(2) The chief executive may authorise the care entity to give the child or
young person access to the personal information and records if the chief
executive considers it to be in the child’s or young person’s best
interests.
(3) If the chief executive authorises the care entity to give the child or
young person access to the personal information and records, the care entity
must give the child or young person access.
(4) If the chief executive’s authorisation is subject to a condition
about the access to be given, the care entity must comply with the
condition.
Chapter
16 Care and
protection—therapeutic protection of children and young
people
529 Definitions—Act
and ch 16
(1) In this Act:
harmful conduct—see section 532.
interim therapeutic protection order—see section
542.
mental dysfunction—see the Mental Health (Treatment
and Care) Act 1994, dictionary.
Note The Mental Health (Treatment and Care) Act 1994,
dictionary defines mental dysfunction as a disturbance or defect,
to a substantially disabling degree, of perceptual interpretation,
comprehension, reasoning, learning, judgment, memory, motivation or
emotion.
mental illness—see the Mental Health (Treatment and
Care) Act 1994, dictionary.
Note The Mental Health (Treatment and Care) Act 1994,
dictionary defines mental illness as a condition that seriously
impairs (either temporarily or permanently) the mental functioning of a person
and is characterised by the presence in the person of any of the following
symptoms:
(a) delusions;
(b) hallucinations;
(c) serious disorder of thought
form;
(d) a severe disturbance of mood;
(e) sustained or repeated
irrational behaviour indicating the presence of the symptoms referred to in
paragraph (a), (b), (c) or (d).
therapeutic protection history—see section
536.
therapeutic protection order—see section
531.
therapeutic protection place—see section 534.
therapeutic protection plan—see section 535.
(2) In this chapter:
non-treating doctor means a doctor authorised under
section 631 (Health professionals—non-treating functions).
non-treating health professional means a health professional
authorised under section 631 (Health professionals—non-treating
functions).
non-treating nurse means a nurse authorised under
section 631 (Health professionals—non-treating functions).
risk assessment—see section 533.
therapeutic protection person means—
(a) for a therapeutic protection place for which the chief executive is
the operating entity—an authorised person to whom the chief executive has
delegated functions of a therapeutic protection person under this chapter;
and
(b) for any other therapeutic protection place—a person that the
operating entity has authorised to exercise the functions of a therapeutic
protection person under this chapter for the therapeutic protection
place.
transition plan—see section 537.
530 Therapeutic
protection only under therapeutic protection order or for emergency
protection
The chief executive may confine a child or young person at a therapeutic
protection place only—
(a) under a therapeutic protection order; or
(b) under an interim therapeutic protection order; or
(c) if the chief executive believes on reasonable grounds the child or
young person is in need of emergency therapeutic protection.
Note For when a child or young person is in need of emergency
therapeutic protection, see s 403.
Part
16.2 Therapeutic protection
orders
Note to pt 16.2
Legal representation of children and young people is dealt with in the
Court Procedures Act 2004, pt 7A (Procedural provisions—proceedings
involving children).
Division
16.2.1 Definitions—Act and pt
16.2
531 What
is a therapeutic protection order?
In this Act:
therapeutic protection order, for a child or young person,
means an order that—
(a) directs that the child or young person be confined—
(i) for a period of time (the period of confinement)
starting on a stated day (the start day); and
(ii) at a therapeutic protection place; and
(iii) for implementation of a stated therapeutic protection plan;
and
(b) transfers daily care responsibility for the child or young person to
the chief executive for the period of confinement; and
Note Part 15.3 (Chief executive has
daily care responsibility) does not apply if daily care responsibility for a
child or young person is transferred to the chief executive under a therapeutic
protection order (see s 505).
(c) includes any conditions the Childrens Court considers necessary to
prevent the child or young person from engaging in harmful conduct.
Note The chief executive or a police officer may apply to a
magistrate for a safe custody warrant if a therapeutic protection order or
interim therapeutic protection order is in force for a child or young person and
the chief executive or police officer believes on reasonable grounds
that—
(a) someone has contravened the order and, because of the contravention,
the child or young person is in danger; or
(b) the child or young person is absent without lawful authority or excuse
from the therapeutic protection place where the child or young person has been
directed to be confined under the therapeutic protection order
(see s 684).
532 What
is harmful conduct?
In this Act:
harmful conduct, engaged in by a child or young person, means
conduct which leads to a significant risk of significant harm to the child or
young person or someone else.
533 What
is a risk assessment?
(1) For this chapter:
risk assessment, for a child or young person, means an
assessment by the chief executive about whether—
(a) there will be a significant risk of significant harm
to—
(i) the child or young person; or
(ii) someone else; and
(b) the risk of harm arises from the child’s or young person’s
conduct; and
(c) the risk of harm will be imminent.
(2) The chief executive may make risk assessment guidelines.
(3) A risk assessment guideline is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) A risk assessment must be carried out in accordance with the risk
assessment guidelines.
534 What
is a therapeutic protection place?
In this Act:
therapeutic protection place, means a place declared by the
Minister under section 624 to be a therapeutic protection place.
Note Therapeutic protection places are further dealt with in div
16.4.1.
535 What
is a therapeutic protection plan?
In this Act:
therapeutic protection plan, for a child or young person for
whom the chief executive has applied for a therapeutic protection
order—
(a) means a plan to reduce the likelihood of the child or young person
engaging in harmful conduct in the future arranged by the chief executive in
consultation, as far as is practicable, with—
(i) the child or young person; and
(ii) the parents of the child or young person; and
(iii) each other person (if any) who has daily care responsibility for the
child or young person; and
(iv) anyone else who is proposed to be involved in implementing the plan;
and
(b) includes written details of the following for the proposed period of
confinement:
(i) when the period of confinement is to start and end;
(ii) the therapy, counselling or other service that is proposed for the
child or young person;
(iii) the expected results of the therapy, counselling or other
service;
(iv) the education that is proposed for the child or young
person;
(v) the supervision that is proposed for the child or young
person;
(vi) the proposed arrangements for the child’s or young
person’s contact with—
(A) family members; and
(B) significant people for the child or young person; and
(C) other people;
(vii) for an Aboriginal or Torres Strait Islander child or young
person—the proposed arrangements for the preservation and enhancement of
the identity of the child or young person as an Aboriginal or Torres Strait
Islander person.
Note If the public advocate or an official visitor asks the chief
executive for a therapeutic protection plan for a child or young person, the
chief executive must provide a copy promptly (see s 630).
536 What
is therapeutic protection history?
In this Act:
therapeutic protection history, for a child or young person
who has been confined under a therapeutic protection order, means written
details of the following for each period of confinement:
(a) when the period of confinement started and ended;
(b) where the child or young person was confined;
(c) the therapy, counselling or other service that was provided to the
child or young person;
(d) the review of the progress of the therapy, counselling or other
service;
(e) the education that was provided to the child or young
person;
(f) the supervision that was provided to the child or young
person;
(g) the arrangements for the child’s or young person’s contact
with, and the child’s or young person’s contact
with—
(i) family members; and
(ii) significant people for the child or young person; and
(iii) other people.
537 What
is a transition plan?
In this chapter:
transition plan, for a child or young person—
(a) means a plan developed by the chief executive for when the child or
young person is no longer subject to a therapeutic protection order;
and
(b) may include proposals for ongoing therapy, counselling or other
services to assist the child’s or young person’s transition from
therapeutic protection.
Division
16.2.2 Applications for therapeutic
protection orders
538 Therapeutic
protection order—application by chief executive
(1) Only the chief executive may apply for a therapeutic protection
order.
(2) The chief executive may apply to the Childrens Court for a therapeutic
protection order for a child or young person if satisfied that the criteria for
making the order are met.
Note 1 Criteria for making a therapeutic protection order are in
s 548.
Note 2 Oral applications may also be made
(see s 697).
539 Therapeutic
protection order—application to state grounds etc
An application for a therapeutic protection order for a child or young
person must—
(a) state the grounds on which the order is sought; and
(b) include—
(i) a risk assessment for the child or young person; and
(ii) a copy of previous therapeutic protection orders for the child or
young person (if any); and
(iii) the therapeutic protection history for the child or young person (if
any); and
(c) state the less restrictive ways that the chief executive
has—
(i) tried to prevent the child or young person from engaging in harmful
conduct and how the less restrictive ways were not successful (if any);
and
(ii) considered to prevent the child or young person from engaging in
harmful conduct and how the less restrictive ways were not appropriate (if any);
and
(d) include—
(i) a therapeutic protection plan for the child or young person;
and
(ii) a transition plan for the child or young person; and
(iii) information about how the therapeutic protection order is part of
the overall care plan for the child or young person.
Note Statements, documents and reports must be included in the
application (see s 695).
540 Therapeutic
protection orders—who must be given application
(1) The chief executive must give a copy of the application for the
therapeutic protection order for the child or young person to the following
people at least 1 working day before the application is to be heard by the
Childrens Court:
(a) the child or young person;
(b) each parent of the child or young person;
(c) each other person (if any) who has daily care responsibility, or
long-term care responsibility, for the child or young person;
(d) the public advocate.
(2) This section does not apply if the chief executive or a police officer
has daily care responsibility for a child or young person under part 13.1
(Emergency care and protection).
Note For s (2), the chief executive need only give a copy of the
application to people before the application is heard by the Childrens Court
(see s 412).
541 Therapeutic
protection order—Childrens Court to consider application
promptly
(1) The Childrens Court must give initial consideration to an application
for a therapeutic protection order not later than 2 working days after the
day the application is filed.
(2) The Childrens Court must give directions about the conduct of the
proceeding (including the hearing of the application) at the time the
application is initially considered.
(3) This section does not apply if the chief executive or a police officer
has daily care responsibility for a child or young person under part 13.1
(Emergency action).
Note For s (3), the Childrens Court must give initial consideration
to the application on the day it is filed (see s 412).
Division
16.2.3 Interim therapeutic protection
orders
542 What
is an interim therapeutic protection order?
In this Act:
interim therapeutic protection order, for a child or young
person, means a therapeutic protection order if the period of confinement is not
longer than 2 weeks.
Note The chief executive or a police officer may apply to a
magistrate for a safe custody warrant if a therapeutic protection order or
interim therapeutic protection order is in force for a child or young person and
the chief executive or police officer believes on reasonable grounds
that—
(a) someone has contravened the order and, because of the contravention,
the child or young person is in danger; or
(b) the child or young person is absent without lawful authority or excuse
from the therapeutic protection place where the child or young person has been
directed to be confined under the therapeutic protection order
(see s 684).
543 Interim
therapeutic protection order—criteria for making
The Childrens Court may, on application by the chief executive, make an
interim therapeutic protection order for a child or young person
if—
(a) an application for a therapeutic protection order for the child or
young person has been made but not finally decided; and
(b) the Childrens Court believes on reasonable grounds that the criteria
for making a therapeutic protection order for the child or young person are
met.
Note Criteria for making a therapeutic protection order are in
s 548.
544 Interim
therapeutic protection order—mental health referral
(1) The Childrens Court must make an interim therapeutic protection order
for a child or young person if—
(a) an application for a therapeutic protection order for the child or
young person has been made but not finally decided; and
(b) the Childrens Court suspects on reasonable grounds that the child or
young person is suffering from a mental illness or mental dysfunction.
(2) The order must contain a provision directing the child or young person
to submit to the jurisdiction of the mental health tribunal to allow the
tribunal—
(a) to decide whether the child or young person is suffering from a mental
illness or mental dysfunction; and
(b) if the tribunal decides that the child or young person is suffering
from a mental illness or mental dysfunction—to make recommendations to the
Childrens Court about how the child or young person should be dealt
with.
Note The Childrens Court may make a therapeutic protection order for
a child or young person only if satisfied that the child or young person is not
suffering from a mental illness or mental dysfunction
(see s 548).
545 Interim
therapeutic protection order—length
(1) The length of an interim therapeutic protection order—
(a) must be stated in the order; and
(b) must not be longer than 2 weeks.
(2) However, if the interim therapeutic protection order would end before
the application for the therapeutic protection order is decided, the interim
order continues in force until the application is decided.
(3) An interim therapeutic protection order must end on, or before, the
day the application for the therapeutic protection order is decided.
546 Interim
therapeutic protection order—no extension, amendment,
revocation
An interim therapeutic protection order must not be extended, amended or
revoked.
547 Offence—interim
therapeutic protection order
A person commits an offence if—
(a) an interim therapeutic protection order is in force for a child or
young person; and
(b) the person has been given a copy of the order; and
(c) the person is not the child or young person who is the subject of the
interim therapeutic protection order; and
(d) the person engages in conduct that contravenes a provision of the
order.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Division
16.2.4 Making a therapeutic protection
order
548 Therapeutic
protection order—criteria for making
The Childrens Court may, on the application of the chief executive, make a
therapeutic protection order for a child or young person only if satisfied
that—
(a) if the order is not made—
(i) there will be a significant risk of significant harm
to—
(A) the child or young person; or
(B) someone else; and
(ii) the risk of harm arises from the child’s or young
person’s conduct; and
(iii) the risk of harm will be imminent; and
(b) the chief executive has—
(i) tried less restrictive ways to prevent the child or young person from
engaging in harmful conduct but the less restrictive ways have not been
successful; or
(ii) considered less restrictive ways to prevent the child or young person
from engaging in harmful conduct but the less restrictive ways were not
appropriate; and
(c) there are no less restrictive ways for the chief executive to prevent
the child or young person from engaging in harmful conduct; and
(d) the child or young person is at least 10 years old; or
(e) the child or young person—
(i) is not suffering from a mental illness or mental dysfunction;
or
(ii) in addition to any other behaviours or dysfunction giving rise to the
risk of harm is suffering from a mental illness or mental dysfunction but the
Childrens Court is satisfied that making a therapeutic protection order for the
child or young person is the best way to support the child or young person;
and
Note The Childrens Court must make an
interim therapeutic protection order for a child or young person if an
application for a therapeutic protection order for the child or young person has
been made but not finally decided and the court suspects on reasonable grounds
that the child or young person is suffering from a mental illness or mental
dysfunction. The order must direct the child or young person to submit to the
jurisdiction of the mental health tribunal
(see s 544).
(f) no-one who has parental responsibility for the child or young person
(other than the chief executive) is willing and able to prevent the child or
young person from engaging in harmful conduct; and
Note Parental responsibility is dealt
with in div 1.3.2.
(g) confinement of the child or young person is necessary to prevent the
child or young person from engaging in harmful conduct; and
(h) the chief executive has developed a therapeutic protection plan for
the child or young person; and
(i) the therapeutic protection plan is more likely than not to reduce the
likelihood of the child or young person engaging in harmful conduct in the
future; and
(j) making the order is in the best interests of the child or young
person.
Examples—other ways to prevent child
or young person from engaging in harmful conduct—par (b) and
(c)
1 The chief executive provided Alex’s family with intensive family
support services.
2 The chief executive sought a care and protection order including a
parental responsibility provision for Bonny. Under the order, Bonny was placed
with a foster carer and provided with intensive support services.
3 The chief executive provided Colin with the same services that are
provided under a therapeutic protection plan but Colin was not confined at a
therapeutic protection place.
Note 1 In a proceeding for a therapeutic protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 2 The Childrens Court may make an order imposing an obligation
on a person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
549 Therapeutic
protection order—length
The length of a therapeutic protection order—
(a) must be stated in the order; and
(b) must not be longer than 8 weeks.
Note A therapeutic protection order may be extended (see div
16.2.6).
550 Therapeutic
protection order—statement of reasons
If the Childrens Court hears and decides an application for a therapeutic
protection order, the court must record a written statement of reasons for the
decision.
Note A party may ask for the statement of reasons
(see s 721 (2)).
551 Offence—therapeutic
protection order
A person commits an offence if—
(a) a therapeutic protection order is in force for a child or young
person; and
(b) the person has been given a copy of the order; and
(c) the person is not the child or young person who is the subject of the
therapeutic protection order; and
(d) the person engages in conduct that contravenes a provision of the
order.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Division
16.2.5 Review of therapeutic
protection orders
552 Initial
review within 4 weeks
(1) This section applies if a therapeutic protection order is in force for
a child or young person.
(2) The chief executive must review the operation of the order (the
initial review) not later than 4 weeks after the order is
made.
553 Ongoing
review at least each 4 weeks
(1) This section applies if a therapeutic protection order is in force for
a child or young person.
(2) The chief executive must review the operation of the order (an
ongoing review) not later than 4 weeks after—
(a) the initial review; and
(b) each ongoing review.
554 Review—views
to be considered
(1) This section applies if the chief executive is carrying out an initial
review, or ongoing review, of the operation of a therapeutic protection
order.
(2) In carrying out the review, the chief executive must consider the
views of the following people:
(a) the child or young person;
(b) each person who has parental responsibility for the child or young
person (other than the chief executive);
Note Parental responsibility is dealt
with in div 1.3.2.
(c) each person who had daily care responsibility for the child or young
person immediately before the order was made;
Note Daily care responsibility is dealt
with in s 19 (b).
(d) each official visitor who has visited the child or young
person;
(e) the public advocate;
(f) any other person the chief executive considers appropriate.
(1) This section applies if the chief executive has carried out an initial
review, or ongoing review, of the operation of a therapeutic protection
order.
(2) The chief executive must prepare a report (a review
report) about the operation of the therapeutic protection
order.
(3) The chief executive must give a copy of the review report to the
following people:
(a) the child or young person;
(b) each person who has parental responsibility for the child or young
person (other than the chief executive);
(c) each person who had daily care responsibility for the child or young
person immediately before the order was made;
(d) each official visitor who has visited the child or young
person;
(e) the public advocate.
556 Chief
executive’s action after review
(1) This section applies if the chief executive has carried out an initial
review, or ongoing review, of the operation of a therapeutic protection
order.
(2) If the chief executive decides that the order should be extended, the
chief executive must apply to the Childrens Court for the order to be
extended.
Note The Childrens Court may extend the order under div
16.2.6.
(3) If the chief executive decides that the order should be amended, the
chief executive must apply to the Childrens Court for the order to be
amended.
Note Amending a therapeutic protection order is dealt with in div
16.2.7.
(4) If the chief executive decides that the order should be revoked, the
chief executive must apply to the Childrens Court for the order to be
revoked.
Note Revoking a therapeutic protection order is dealt with in div
16.2.7.
Division
16.2.6 Extending a therapeutic
protection order
557 Therapeutic
protection order—extension application
The chief executive may apply to the Childrens Court for extension of a
therapeutic protection order only if the chief executive believes on reasonable
grounds that the criteria for extending the order are met.
Note 1 Criteria for extending the order is in s 561.
Note 2 Statements, documents and reports must be included in the
application (see s 695).
Note 3 Oral applications may also be made (see s 697).
558 Therapeutic
protection order—extension application must state grounds
etc
An application for extension of a therapeutic protection order
must—
(a) state the grounds for the proposed extension; and
(b) include—
(i) the therapeutic protection history for the child or young person;
and
(ii) a further therapeutic protection plan for the child or young person
for the period of the proposed extension; and
(iii) a further risk assessment for the child or young person.
559 Therapeutic
protection order—who must be given extension
application
The chief executive must give a copy of an application for extension of a
therapeutic protection order to the following people at least 1 working day
before the application is to be heard by the Childrens Court:
(a) each party to the proceeding in which the order was made;
(b) the public advocate.
Note Parties to proceedings are dealt with in pt 19.2.
560 Therapeutic
protection order—Childrens Court to consider extension application
promptly
(1) The Childrens Court must give initial consideration to an application
for extension of a therapeutic protection order not later than 2 working
days after the day the application is filed.
(2) The Childrens Court must give directions about the conduct of the
proceeding (including the hearing of the application) at the time the
application is initially considered.
(3) If the therapeutic protection order is in force on the day the
application is filed, but would end before the application is heard, the order
continues in force until the application is heard and decided (whether or not
the application is considered within the period required under this
section).
561 Therapeutic
protection order—criteria for extension up to
6 months
(1) The Childrens Court may, by order, extend a therapeutic protection
order only if satisfied that—
(a) if the order is not extended—
(i) there will be a significant risk of significant harm
to—
(A) the child or young person; or
(B) someone else; and
(ii) the risk of harm arises from the child’s or young
person’s conduct; and
(iii) the risk of harm will be imminent; and
(b) the chief executive has—
(i) tried less restrictive ways to prevent the child or young person from
engaging in harmful conduct but the less restrictive ways have not been
successful; or
(ii) considered less restrictive ways to prevent the child or young person
from engaging in harmful conduct but the less restrictive ways were not
appropriate; and
(c) there are no less restrictive ways for the chief executive to prevent
the child or young person from engaging in harmful conduct; and
(d) if, in addition to any other behaviours or dysfunction giving rise to
the risk of harm, the child or young person is suffering from a mental illness
or mental dysfunction—extending the order is the best way to support the
child or young person; and
(e) no-one who has parental responsibility for the child or young person
(other than the chief executive) is willing and able to prevent the child or
young person from engaging in harmful conduct; and
Note Parental responsibility is dealt
with in div 1.3.2.
(f) further confinement of the child or young person is necessary to
prevent the child or young person from engaging in harmful conduct;
and
(g) the chief executive has developed a further therapeutic protection
plan for the child or young person; and
(h) the further therapeutic protection plan is more likely than not to
reduce the likelihood of the child or young person engaging in harmful conduct
in the future; and
(i) extending the order is in the best interests of the child or young
person.
Note 1 In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 2 The Childrens Court may make an order imposing an obligation
on a person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
(2) The Childrens Court may extend a therapeutic protection order for as
long as a further 8 weeks.
(3) However, the Childrens Court must not extend a therapeutic protection
order if the total length of the order and the proposed extension will be longer
than 6 months.
562 Therapeutic
protection order extension—statement of reasons
If the Childrens Court hears and decides an application for extension of a
therapeutic protection order, the court must record a written statement of
reasons for the decision.
Note A party may ask for the statement of reasons
(see s 721 (2)).
Division
16.2.7 Amending or revoking a
therapeutic protection order
563 Therapeutic
protection order—application for amendment or
revocation
The following people may apply for amendment or revocation of a therapeutic
protection order for a child or young person if the person believes on
reasonable grounds that the criteria for amending or revoking the order are
met:
(a) the chief executive;
(b) the child or young person;
(c) someone who has parental responsibility for the child or young
person;
(d) a former caregiver of the child or young person;
(e) the public advocate.
Note Criteria for amending the order are in s 568.
Criteria
for revoking the order are in s 569.
564 Therapeutic
protection order—application for amendment must state grounds
etc
(1) An application for amendment of a therapeutic protection order
must—
(a) state—
(i) how the provision is proposed to be amended; and
(ii) the grounds for the proposed amendment; and
(b) if the applicant is the chief executive, include—
(i) the therapeutic protection history for the child or young person;
and
(ii) a revised therapeutic protection plan for the child or young person
that takes into account the proposed amendment; and
(iii) a further risk assessment for the child or young person.
(2) If the applicant is not the chief executive, after the chief executive
receives a copy of the application, the chief executive must file with the
Childrens Court—
(a) the therapeutic protection history for the child or young person;
and
(b) a revised therapeutic protection plan for the child or young person
that takes into account the proposed amendment; and
(c) a risk assessment for the child or young person.
565 Therapeutic
protection order—application for revocation must state grounds
etc
(1) An application for revocation of a therapeutic protection order
must—
(a) state the grounds for the proposed revocation; and
(b) if the applicant is the chief executive, include—
(i) the therapeutic protection history for the child or young person;
and
(ii) a further risk assessment for the child or young person.
(2) If the applicant is not the chief executive, after the chief executive
receives a copy of the application, the chief executive must file with the
Childrens Court—
(a) the therapeutic protection history for the child or young person;
and
(b) a further risk assessment for the child or young person.
566 Therapeutic
protection order—who must be given application for amendment or
revocation
The applicant for amendment or revocation of a therapeutic protection order
must give a copy of the application to the following people at least
1 working day before the application is to be heard by the Childrens
Court:
(a) each party to the proceeding in which the order was made;
(b) anyone else who was required to be given a copy of the application for
the therapeutic protection order;
(c) the public advocate.
Note Parties to proceedings are dealt with in pt 19.2.
567 Therapeutic
protection order—Childrens Court to consider application for amendment or
revocation promptly
(1) The Childrens Court must give initial consideration to an application
for amendment or revocation of a therapeutic protection order not later than
5 working days after the day the application is filed.
(2) The Childrens Court must give directions about the conduct of the
proceeding (including the hearing of the application) at the time the
application is initially considered.
(3) If the therapeutic protection order is in force on the day the
application is filed, but would end before the application is heard, the order
continues in force until the application is heard and decided (whether or not
the application is considered within the period required under this
section).
568 Therapeutic
protection order—criteria for amendment
The Childrens Court may, by order, amend a therapeutic protection order
only if satisfied that—
(a) if the order is not amended—
(i) there will be a significant risk of significant harm
to—
(A) the child or young person; or
(B) someone else; and
(ii) the risk of harm arises from the child’s or young
person’s conduct; and
(iii) the risk of harm will be imminent; and
(b) the chief executive has developed a further therapeutic protection
plan for the child or young person; and
(c) the further therapeutic protection plan is more likely than not to
reduce the likelihood of the child or young person engaging in harmful conduct
in the future; and
(d) amending the order is in the best interests of the child or young
person.
Note 1 In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 2 The Childrens Court may make an order imposing an obligation
on a person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
569 Therapeutic
protection order—criteria for revocation
The Childrens Court may, by order, revoke a therapeutic protection order
only if satisfied that—
(a) if the order is revoked, there will be no imminent, significant risk
of significant harm to the child or young person or someone else arising from
the child’s or young person’s conduct; and
(b) revoking the order is in the best interests of the child or young
person.
Note 1 In a proceeding for a care and protection order, a fact is
proved if it is proved on the balance of probabilities
(see s 710).
Note 2 The Childrens Court may make an order imposing an obligation
on a person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
570 Therapeutic
protection order amendment or revocation—statement of
reasons
If the Childrens Court hears and decides an application for amendment or
revocation of a therapeutic protection order, the court must record a written
statement of reasons for the decision.
Note A party may ask for the statement of reasons
(see s 721 (2)).
Part
16.3 Children and young people in
therapeutic protection
Division
16.3.1 Preliminary
571 When
is a child or young person in therapeutic
protection?
In this Act:
in therapeutic protection—a child or young person is
in therapeutic protection if the child or young person is confined
at a therapeutic protection place under a therapeutic protection order or under
section 530 (b) (Therapeutic protection only under therapeutic
protection order or for emergency protection).
572 Transgender
and intersex children and young people—sexual
identity
(1) This section applies to a transgender or intersex child or young
person in therapeutic protection at a therapeutic protection place.
(2) On admission to a therapeutic protection place—
(a) the child or young person may tell the operating entity for the
therapeutic protection place the sex the child or young person chooses to be
identified with; or
(b) if the child or young person fails to make a choice under paragraph
(a)—the operating entity may choose the sex the child or young person is
to be identified with having regard to the presentation of the child or young
person on admission to the place.
Note Fail includes refuse, see
the Legislation Act, dict, pt 1.
(3) The operating entity for the therapeutic protection place may, on
application by the child or young person, approve a change in the sex the child
or young person chooses to be identified with, having regard to any report
obtained under subsection (4) or (5).
(4) Before making a decision under subsection (2) (b) or (3), the
operating entity for the therapeutic protection place must obtain a report by a
non-treating doctor or other non-treating health professional about the
child’s or young person’s sexual identity.
(5) The operating entity for the therapeutic protection place may also
obtain a report by a non-treating doctor or other non-treating health
professional about the child’s or young person’s sexual identity
chosen under subsection (2) (a) if the operating entity believes on
reasonable grounds that obtaining the report—
(a) is in the best interests of the child or young person; and
(b) is necessary to make a decision in relation to the child’s or
young person’s placement, supervision or management at the therapeutic
protection place.
(6) The operating entity for the therapeutic protection place
must—
(a) give the child or young person written notice of a decision under
subsection (2) or (3); and
(b) ensure that the child’s or young person’s sex chosen under
this section is entered in the therapeutic protection register kept by the
operating entity.
(7) For this Act, the sex of the child or young person is taken to be the
child’s or young person’s sex entered in the therapeutic protection
register under subsection (6) (b).
Examples—effect of
section
The conduct of searches of the child or young person would be on the basis
that the child or young person was a person of the sex chosen and entered in the
therapeutic protection register.
Note 1 The child or young person may require that either a male or a
female conduct a search (see s 591 (2) (Searches—transgender or intersex
child or young person)).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Division
16.3.2 Supervision
573 Therapeutic
protection—supervision
The operating entity for a therapeutic protection place may closely or
constantly supervise a child or young person in therapeutic protection if the
supervision is reasonably necessary to safeguard the child’s or young
person’s wellbeing.
Note An authorised person may, at any reasonable time, enter a
therapeutic protection place (see s 815).
574 Therapeutic
protection—escort outside therapeutic protection
place
(1) A child or young person in therapeutic protection may leave a
therapeutic protection place only if escorted by the operating entity for the
therapeutic protection place.
(2) A child or young person who leaves a therapeutic protection place,
under escort by the operating entity for the therapeutic protection place, is
taken to be in therapeutic protection.
Division
16.3.3 Visits by accredited
people
575 Who
is an accredited person?
In this division:
accredited person, for a child or young person in therapeutic
protection, means each of the following:
(a) the chief executive;
(b) a representative of an entity providing a service or program to the
child or young person at a therapeutic protection place;
(c) a lawyer representing the child or young person;
(d) an official visitor;
(e) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(f) the public advocate;
(g) the ombudsman;
(h) a person prescribed by regulation.
576 Therapeutic
protection—visits by accredited people must be
allowed
To protect the human rights of children and young people in therapeutic
protection at therapeutic protection places, the operating entity for the
therapeutic protection place must ensure, as far as practicable, that children
and young people in therapeutic protection have reasonable opportunities to
receive visits from accredited people.
577 Therapeutic
protection—visits by accredited people
An accredited person may visit a child or young person in therapeutic
protection.
Division
16.3.4 Use of
force
578 Therapeutic
protection—managing use of force
(1) The operating entity for a therapeutic protection place must make
arrangements to ensure, as far as practicable, that the use of force in relation
to the management of a child or young person in therapeutic protection is
always—
(a) a last resort; and
(b) for a purpose that cannot be achieved in any other way; and
(c) in accordance with this division; and
(d) in accordance with the therapeutic protection standards.
Note The Minister may make therapeutic protection standards under
s 886.
(2) The operating entity must also ensure, as far as practicable,
that—
(a) a therapeutic protection person does not use force in relation to a
child or young person in therapeutic protection without first considering the
following in relation to the use of force:
(i) the child’s or young person’s age, sex, physical and
mental health and any history of abuse;
(ii) if the proposed force involves any restraint of the child or young
person—the physical and developmental capacity of the child or young
person; and
(b) the use of force in relation to a child or young person is not
observed by any other child or young person.
(3) However, an operating entity need not comply with subsection (2) if,
in urgent circumstances, the person believes on reasonable grounds that doing so
would create a risk of injury to the therapeutic protection person, the child or
young person in therapeutic protection, or anyone else.
579 Therapeutic
protection—authorised use of force
A therapeutic protection person may use force that is necessary and
reasonable—
(a) to prevent a child or young person in therapeutic protection from
inflicting self-harm or harming someone else; or
(b) to prevent unlawful damage, destruction or interference with
property.
580 Therapeutic
protection—application of force
(1) A therapeutic protection person may use force under this division only
if the operating entity—
(a) gives a clear warning of the intended use of force; and
(b) allows enough time for the warning to be observed; and
(c) uses force, as far as practicable, in a way that reduces the risk of
causing injury.
(2) However, the therapeutic protection person need not comply with
subsection (1) (b) or (c) if, in urgent circumstances, the person
believes on reasonable grounds that doing so would create a risk of injury to
the child or young person in therapeutic protection or anyone else.
Example—urgent
circumstances
the child or young person is assaulting someone or engaging in
self-harm
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) In applying force under section 579, the therapeutic protection person
may use body contact.
581 Therapeutic
protection—medical examination after use of force
(1) The operating entity for a therapeutic protection place must ensure
that any child or young person in therapeutic protection injured by the use of
force under this division is examined as soon as practicable by a doctor (other
than a non-treating doctor) and that appropriate health care is available to the
child or young person.
(2) Without limiting subsection (1), the operating entity for a
therapeutic protection place must give a child or young person in therapeutic
protection the opportunity to be examined by a doctor or nurse (other than a
non-treating doctor or non-treating nurse) after the use of force in relation to
the child or young person.
582 Therapeutic
protection—monthly reports about use of force
The operating entity for a therapeutic protection place must, as soon as
practicable after the end of each month, give the chief executive a report
summarising the incidents (if any) during the month that involved the use of
force in relation to a child or young person in therapeutic
protection.
Subdivision
16.3.5.1 Application and definitions—div 16.3.5
583 Application—div
16.3.5
This division applies to a child or young person who is in therapeutic
protection.
584 What
is a scanning search?
In this part:
scanning search, of a child or young person, means a search
of the child or young person by electronic or other means that does not require
the child or young person to remove the child’s or young person’s
clothing or be touched by someone else.
Examples—scanning
searches
1 passing a portable electronic or other device over or close to a child or
young person
2 requiring a child or young person to pass by or through an electronic or
other device
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
585 What
is a frisk search?
In this part:
frisk search, of a child or young person,
means—
(a) a search of the child or young person conducted by quickly running the
hands over the child’s or young person’s outer clothing;
and
(b) an examination of anything worn or carried by the child or young
person that is conveniently and voluntarily removed by the child or young
person.
586 What
is an ordinary search?
In this part:
ordinary search, of a child or young person,
means a search of the child or young person or of anything in the
child’s or young person’s possession, and may
include—
(a) requiring the child or young person to remove only the child’s
or young person’s overcoat, coat, jacket or a similar article of clothing
and any footwear, gloves, or headwear; and
(b) an examination of anything removed.
587 What
is a body search?
In this part:
body search, of a child or young person, means a search of
the child’s or young person’s body, including an examination of an
orifice or cavity of the child’s or young person’s body.
588 What
is a strip search?
In this part:
strip search, of a child or young person, means a search of
the child or young person, or of articles in the child’s or young
person’s possession, under section 597 (Strip
searches—authorisation) that may include—
(a) requiring the child or young person to remove all of the child’s
or young person’s clothing; and
(b) an examination of—
(i) the child’s or young person’s body (but not the
child’s or young person’s body orifices or cavities); and
(ii) the child’s or young person’s clothing.
589 What
is a dangerous thing?
In this part:
dangerous thing means a thing that, if used by, or allowed to
remain with, a child or young person, may—
(a) cause serious damage to the health of the child or young person or
someone else; or
(b) threaten the life of the child or young person or someone
else.
Subdivision
16.3.5.2 Searches generally
590 Searches—intrusiveness
A person conducting a search of a child or young person under this division
must ensure, as far as practicable, that the search—
(a) is the least intrusive kind of search that is necessary and reasonable
in the circumstances; and
(b) is conducted in the least intrusive way that is necessary and
reasonable in the circumstances.
Example
searching for a dangerous thing by a scanning search rather than a frisk
search
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
591 Searches—transgender
or intersex child or young person
(1) This section applies if a transgender or intersex child or young
person is to be searched under this division.
(2) For a child or young person who fails to make a choice under
section 572 (2) (a) (Transgender and intersex children and young
people—sexual identity)—
(a) if the child or young person requires that a male conduct the search,
the child or young person is taken, for this part, to be male; and
(b) if the child or young person requires that a female conduct the
search, the child or young person is taken, for this part, to be
female.
Note 1 For the Act generally, the sex of a child or young person is
taken to be the child’s or young person’s sex entered in the
therapeutic protection register under s 572 (7).
Note 2 For the meaning of intersex person and
transgender person, see the Legislation Act, s 169A and s
169B.
592 Searches—use
of force
(1) A therapeutic protection person may use force that is necessary and
reasonable—
(a) to conduct or assist at a search under this division; or
(b) to prevent the loss, destruction or contamination of anything seized,
or that may be seized, during the search.
(2) However, the therapeutic protection person may use force only in
accordance with division 16.3.4.
Subdivision
16.3.5.3 Scanning, frisk and ordinary searches
593 Directions
for scanning, frisk and ordinary searches
(1) The operating entity for a therapeutic protection place may, at any
time, direct a therapeutic protection person to conduct a scanning search, frisk
search or ordinary search of a child or young person if the operating entity
believes on reasonable grounds the search is prudent to ensure security or good
order at a therapeutic protection place.
(2) Also, a therapeutic protection person may conduct a scanning search,
frisk search or ordinary search of a child or young person if the person
suspects on reasonable grounds that the child or young person is
carrying—
(a) a dangerous thing; or
(b) something that may be used by the child or young person in a way that
may involve—
(i) an offence; or
(ii) a risk to the personal safety of the child or young person or someone
else; or
(iii) a risk to security or good order at a therapeutic protection
place.
594 Scanning,
frisk and ordinary searches—requirements before
search
(1) This section applies if a therapeutic protection person proposes to
conduct a scanning, frisk or ordinary search of a child or young
person.
(2) Before the search is conducted, the therapeutic protection person must
tell the child or young person—
(a) about the search; and
(b) the reasons for the search.
(3) If the child or young person asks why the search is to be conducted in
a particular way, the therapeutic protection person must tell the child or young
person the reasons.
(4) The therapeutic protection person must ask for the child’s or
young person’s cooperation for the search.
595 Frisk
and ordinary searches—privacy
(1) A frisk search or ordinary search of a child or young person may only
be conducted in—
(a) a private area; or
(b) an area that provides reasonable privacy for the child or young
person.
(2) A frisk search or ordinary search of a child or young person must not
be conducted in the presence or sight of—
(a) another child or young person; or
(b) someone whose presence is not necessary for the search or for the
safety of anyone present.
(3) A frisk search of a child or young person must be conducted by a
therapeutic protection person of the same sex as the child or young
person.
(4) Subsection (3) does not apply if the operating entity for the
therapeutic protection place believes on reasonable grounds
that—
(a) there is an imminent and serious threat to the personal safety of the
child or young person or someone else; and
(b) compliance with subsection (3) would exacerbate the threat.
596 Scanning,
frisk and ordinary searches—clothing
If clothing from a child or young person is seized during a scan search,
frisk search or ordinary search, the therapeutic protection person conducting
the search must ensure that the child or young person is left with, or given,
reasonably appropriate clothing to wear.
Note Seizure of things found during the search is dealt with in
div 16.3.6.
Subdivision
16.3.5.4 Strip searches
597 Strip
searches—authorisation
(1) The operating entity for a therapeutic protection place may direct a
therapeutic protection person to strip search a child or young person only
if—
(a) the operating entity suspects on reasonable grounds that the child or
young person has a dangerous thing concealed on the child or young person;
and
(b) a scanning search, frisk search or ordinary search of the child or
young person has failed to detect the thing.
(2) In making a decision under subsection (1), the operating entity
must have regard to the child’s or young person’s age, maturity,
developmental capacity and any known history.
598 Strip
searches—requirements before search
(1) This section applies if a therapeutic protection person proposes to
strip search a child or young person.
(2) Before the search is conducted, the therapeutic protection person must
tell the child or young person—
(a) about the search; and
(b) the reasons for the search; and
(c) whether the child or young person will be required to remove clothing
during the search; and
(d) if the child or young person will be required to remove
clothing—why the removal is necessary.
(3) If the child or young person asks why the search is being conducted in
a particular way, the therapeutic protection person must tell the child or young
person the reasons.
(4) The therapeutic protection person must ask for the child’s or
young person’s cooperation for the search.
599 Strip
searches—second therapeutic protection person must be
present
(1) A strip search of a child or young person must be
conducted—
(a) by a therapeutic protection person of the same sex as the child or
young person; and
(b) in the presence of 1 or more other therapeutic protection people, each
of whom must be the same sex as the child or young person.
(2) However, the number of therapeutic protection people present during
the search must be no more than is necessary and reasonable to ensure the search
is conducted as safely and effectively as possible.
(3) The person conducting the search may direct someone else mentioned in
subsection (1) (b) to provide the assistance that the person believes on
reasonable grounds is necessary and reasonable for the search.
(4) The requirement in subsection (1) (b) that a person be the same sex as
the child or young person does not apply if the operating entity for the
therapeutic protection place believes on reasonable grounds
that—
(a) there is an imminent and serious threat to the personal safety of the
child or young person; and
(b) compliance with the requirement would exacerbate the threat.
600 Strip
searches—support person must be present
(1) The operating entity for a therapeutic protection place must ensure
that the strip search is conducted in the presence of someone
(a support person) who—
(a) the operating entity believes on reasonable grounds can support and
represent the interests of the child or young person; and
(b) the child or young person agrees should be present at the
search.
(2) However, the search may continue in the absence of a support person
if—
(a) the child or young person does not agree to a support person being
present; or
(b) the operating entity directs the support person to leave under section
601.
601 Strip
searches—directing support person to leave
(1) This section applies if a child or young person is being strip
searched in the presence of a support person under section 600.
(2) The operating entity for the therapeutic protection place may direct
the support person to leave if the operating entity believes on reasonable
grounds that the support person is preventing or hindering the search.
(3) If the support person leaves, the search may continue in the absence
of the support person.
602 Strip
searches—enforcing direction to leave
(1) The operating entity for a therapeutic protection place may direct a
therapeutic protection person to enforce a direction under section 601 (2)
if the person given the direction contravenes the direction.
(2) The therapeutic protection person may use force that is necessary and
reasonable to enforce the direction.
603 Strip
searches—general rules
If a therapeutic protection person is strip searching a child or young
person, the person must conduct the search—
(a) in a way that is appropriate, having regard as far as practicable, to
the child’s or young person’s sexuality and any known impairment,
condition or history; and
(b) as quickly as practicable.
604 Strip
searches—privacy
(1) A strip search of a child or young person may only be conducted
in—
(a) a private area; or
(b) an area that provides reasonable privacy for the child or young
person.
(2) If a therapeutic protection person is strip searching a child or young
person, the person must conduct the search in a way that provides reasonable
privacy for the child or young person.
(3) A strip search of a child or young person must not be
conducted—
(a) in the presence of anyone of the opposite sex to the child or young
person, other than—
(i) a person present under section 599 (Strip searches—second
therapeutic protection person must be present); or
(ii) a support person present under section 600 (Strip
searches—support person must be present); or
(b) in the presence or sight of someone whose presence is not necessary
for the search or for the safety of anyone present.
605 Strip
searches—no touching body
Subject to division 16.3.4 (Use of force), a strip search must not involve
touching the child’s or young person’s body.
606 Strip
searches—visual inspection of body
(1) If a therapeutic protection person is strip searching a child or young
person, the person must not visually inspect the following areas of the child or
young person unless the officer suspects on reasonable grounds that it is
necessary to do so for the search:
(a) the genital area;
(b) for a female child or young person—the breasts.
(2) A strip search of a child or young person must not involve more visual
inspection of the child’s or young person’s body than is necessary
and reasonable for the search.
(3) Without limiting subsection (2), during the strip search of the
child or young person, any visual inspection of the following areas of the child
or young person must be kept to a minimum:
(a) the genital area;
(b) the anal area;
(c) the buttocks;
(d) for a female child or young person—the breasts.
607 Strip
searches—clothing
(1) A strip search of a child or young person must not
involve—
(a) the removal from the child or young person of more clothes than is
necessary and reasonable for the search; or
(b) the removal from the child or young person of more clothes at any time
than is necessary and reasonable for the search; or
(c) without limiting paragraph (b), both the upper and lower parts of
the child’s or young person’s body being uncovered at the same
time.
(2) After a strip search of a child or young person is finished, the child
or young person must be allowed to dress in private.
(3) If clothing from a child or young person is seized during a strip
search, the therapeutic protection person conducting the search must ensure that
the child or young person is left with, or given, reasonably appropriate
clothing to wear.
Note Seizure of things found during the search is dealt with in div
16.3.6.
Subdivision
16.3.5.5 Body searches
608 Body
searches—directions
(1) The operating entity for a therapeutic protection place may direct a
non-treating doctor to conduct a body search of a child or young person only if
the operating entity suspects on reasonable grounds that the child or young
person has ingested or inserted something that may jeopardise the child’s
or young person’s health or wellbeing.
(2) In making a decision under subsection (1), the operating entity
must have regard to the child’s or young person’s age, maturity,
developmental capacity and any known history.
609 Body
searches—requirements before search
(1) This section applies if the operating entity for a therapeutic
protection place has directed a non-treating doctor to conduct a body search of
a child or young person.
(2) Before the search is conducted, the operating entity must tell the
child or young person—
(a) about the search; and
(b) the reasons for the search; and
(c) whether the child or young person will be required to remove clothing
during the search; and
(d) if the child or young person will be required to remove
clothing—why the removal is necessary.
(3) If the child or young person asks why the search is to be conducted in
a particular way, the operating entity must tell the child or young person the
reasons.
(4) The operating entity must ask for the child’s or young
person’s cooperation for the search.
610 Body
searches—non-treating nurse must be present
(1) A non-treating nurse must be present during the body search of a child
or young person.
(2) If the non-treating doctor conducting the body search is not the same
sex as the child or young person, the non-treating nurse present must be the
same sex as the child or young person.
611 Body
searches—another person may be present
(1) The operating entity for a therapeutic protection place may direct a
therapeutic protection person to be present during the body search of a child or
young person.
(2) However, the number of people present during the search must be no
more than is necessary and reasonable to ensure the search is conducted as
safely and effectively as possible.
(3) The operating entity may direct more than 1 therapeutic protection
person to be present during the search, each of whom must be the same sex as the
child or young person.
(4) However, the requirement in subsection (3) does not apply if the
operating entity believes on reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
child or young person; and
(b) compliance with the requirement would exacerbate the threat.
612 Body
searches—support person must be present
(1) The operating entity for the therapeutic protection place must ensure
that the body search is conducted in the presence of someone
(a support person) who—
(a) the operating entity believes on reasonable grounds can support and
represent the interests of the child or young person; and
(b) the child or young person agrees should be present at the
search.
(2) However, the body search may continue in the absence of a support
person if the child or young person does not agree to a support person being
present.
613 Body
searches—directing support person to leave
(1) This section applies if a child or young person is being body searched
in the presence of a support person under section 612.
(2) The operating entity for the therapeutic protection place may direct
the support person to leave if the operating entity believes on reasonable
grounds that the support person is preventing or hindering the search.
(3) If the support person leaves, the search may continue in the absence
of the support person.
614 Body
searches—touching body
(1) This section applies to—
(a) a non-treating doctor who is—
(i) conducting a body search of a child or young person; and
(ii) the same sex as the child or young person; and
(b) a non-treating nurse who is—
(i) present at a body search of a child or young person; and
(ii) the same sex as the child or young person.
(2) The non-treating doctor or non-treating nurse may touch the child or
young person and examine the child’s or young person’s body orifices
and cavities for the search.
615 Body
searches—clothing
(1) A body search of a child or young person must not
involve—
(a) the removal from the child or young person of more clothes than is
necessary and reasonable for the search; or
(b) the removal from the child or young person of more clothes at any time
than is necessary and reasonable for the search; or
(c) without limiting paragraph (b), both the upper and lower parts of
the child’s or young person’s body being uncovered at the same
time.
(2) Immediately after a body search of a child or young person is
finished, the child or young person must be allowed to dress in
private.
(3) If clothing from a child or young person is seized during a body
search, the operating entity for the therapeutic protection place must ensure
that the child or young person is left with, or given, reasonably appropriate
clothing to wear.
Note Seizure of things found during the search is dealt with in
div 16.3.6.
616 Body
searches—assistance
(1) This section applies if a non-treating doctor who is conducting a body
search of a child or young person asks the operating entity for the assistance
that the doctor believes on reasonable grounds is necessary and reasonable for
the search.
(2) The operating entity may direct or authorise someone else present at
the search (the assistant) to assist in the search.
(3) The assistant must be the same sex as the child or young
person.
(4) However, subsection (3) does not apply if the operating entity
believes on reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
child or young person, or someone else; and
(b) compliance with subsection (3) would exacerbate the threat.
617 Body
searches—non-treating doctor may seize things
(1) A non-treating doctor who is conducting a body search of a child or
young person may seize anything that the child or young person has ingested or
inserted that may jeopardise the child’s or young person’s health or
wellbeing that is discovered during the search.
(2) However, the non-treating doctor may seize the thing only if seizing
the thing would not be likely to cause injury to the child or young person or
someone else.
(3) The non-treating doctor must give the thing seized to the operating
entity as soon as practicable.
Note Seizure of things found during the search is further dealt with
in div 16.3.6.
Division
16.3.6 Seizing dangerous
things
618 Application—div
16.3.6
This division applies to a child or young person who is in therapeutic
protection.
619 Seizing
property—who is the owner?
In this division:
owner, of a thing, includes a person entitled to possession
of the thing.
620 Seizing
property—dangerous things may be seized
(1) The operating entity for a therapeutic protection place may seize a
dangerous thing found on a child or young person or in a child’s or young
person’s custody or possession, unless the child or young person has the
written approval of the operating entity to possess the thing.
(2) To remove any doubt, this section applies to any dangerous thing found
in a search under this part.
621 Seized
property—must tell owner
(1) As soon as practicable, but not later than 7 days, after the day a
thing is seized under section 620, the operating entity for the therapeutic
protection place must tell the following people, in writing (a seizure
notice), about the seizure:
(a) the owner of the thing seized; or
(b) if the owner cannot be identified after reasonable efforts (given the
thing’s apparent value)—the person from whom the thing was
seized.
(2) The seizure notice must—
(a) identify the thing seized; and
(b) outline the grounds for the seizure; and
(c) include a statement about the effect of section 622;
and
(d) include anything else prescribed by regulation.
622 Seized
property—forfeiture
(1) A thing seized under section 620 (Seizing
property—dangerous things may be seized) is forfeited to the Territory
if—
(a) after making reasonable efforts (given the thing’s apparent
value), the operating entity for the therapeutic protection place is satisfied
that—
(i) the owner of the thing cannot be found; or
(ii) the thing cannot be returned to the owner; or
(b) the operating entity for the therapeutic protection place is satisfied
that—
(i) possession of the thing by the child or young person is an offence;
or
(ii) it is necessary to keep the thing to stop it being used for the
commission of an offence; or
(iii) the thing is inherently unsafe.
(2) The operating entity may deal with a thing forfeited to the Territory
under this section, or dispose of it, as the operating entity considers
appropriate.
Examples
1 giving a forfeited weapon to the chief executive
2 dumping a forfeited thing of little value
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) However, subsection (2) is subject to any order under the
Crimes Act 1900, section 249 (Seizure of forfeited
articles).
Note 1 The Crimes Act 1900 also provides for articles
forfeited under any law in force in the Territory to be seized by a member of
the police force, taken before the Magistrates Court and for the court to order
disposal of the article by the public trustee (see s 249 and s 250).
Note 2 The Uncollected Goods Act 1996 provides generally for
the disposal of uncollected goods, including goods abandoned on premises
controlled by the Territory.
623 Seized
property—return
(1) If a thing seized under section 620 (Seizing
property—dangerous things may be seized) is not forfeited to the
Territory, the operating entity for the therapeutic protection place must return
the thing to its owner—
(a) at the end of the 6 months after the day the thing was seized;
or
(b) if a proceeding for an offence involving the thing is started not
later than the 6 months—at the end of the proceeding and any appeal
from the proceeding.
(2) However, if the thing was being kept as evidence of an offence and the
operating entity believes on reasonable grounds that keeping the thing as
evidence is no longer necessary, the operating entity must return the thing
immediately to its owner.
Part
16.4 Therapeutic
protection—administration
Division
16.4.1 Therapeutic protection
places
624 Therapeutic
protection place—declaration
(1) The Minister may declare a place to be a therapeutic protection place
for this Act.
(2) However, the Minister may declare a place to be a therapeutic
protection place only if the place—
(a) is not used to accommodate young detainees; and
(b) complies with the therapeutic protection standards.
Note The Minister may make therapeutic protection standards under
s 886.
(3) A declaration is a notifiable instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 An authorised person may, at any reasonable time, enter a
place if the chief executive is deciding whether to declare the place as a
therapeutic protection place under this section (see s 815).
625 Therapeutic
protection place—exclusion of matters from declaration
etc
(1) The chief executive may exclude from a therapeutic protection place
declaration any matter that the chief executive believes on reasonable grounds
would be likely to disclose the location of a therapeutic protection
place.
(2) However, the chief executive must disclose the location of a
therapeutic protection place to the people entitled under
section 633 (1) to have access to the therapeutic protection
register.
626 Therapeutic
protection place—policies and procedures
(1) The chief executive may make therapeutic protection place policies and
operating procedures, consistent with this Act, to facilitate the effective and
efficient management of therapeutic protection places.
Note A reference to this Act includes a reference to the statutory
instruments made or in force under this Act, including any therapeutic
protection standards (see Legislation Act, s 104).
(2) Each therapeutic protection place policy or operating procedure is a
notifiable instrument.
Note 1 A notifiable instrument must be notified under the
Legislation Act.
Note 2 The amendment or repeal of a therapeutic protection place
policy or operating procedure is also a notifiable instrument (see Legislation
Act, s 46 (Power to make instrument includes power to amend or
repeal)).
Note 3 The chief executive must make a therapeutic protection place
policy or operating procedure in relation to the use of force, including
provision in relation to the circumstances, and by whom, force may be used and
the kinds of force that may be used (see s 578).
Note 4 An authorised person may, at any reasonable time, enter a
therapeutic protection place (see s 815).
627 Authorisation
of operating entity for therapeutic protection place
The chief executive may authorise an entity to be an operating entity for a
therapeutic protection place if satisfied that the entity—
(a) is a suitable entity to operate a therapeutic protection service;
and
Note Suitable entities are dealt with in
s 61.
(b) complies with, and is likely to continue to comply with, the
therapeutic protection standards.
Note The Minister may make therapeutic
protection standards under s 886.
628 Suspension
of operating entity’s authorisation
(1) The chief executive may suspend an entity’s authorisation under
section 627 as an operating entity for a therapeutic protection place if
the chief executive suspects on reasonable grounds that the
entity—
(a) is not a suitable entity to operate a therapeutic protection place;
or
(b) has not complied with, or continued to comply with, the therapeutic
protection standards.
(2) The chief executive may suspend the authorisation by—
(a) giving the entity written notice of the suspension, including the
chief executive’s reasons for suspending the authorisation; and
(b) telling the entity that the entity may make a submission, in writing,
to the chief executive about the suspension not later than 14 days after
the day the notice is given to the entity.
(3) A suspension takes effect immediately.
(4) After the end of 28 days after the chief executive gives notice of the
suspension of an entity’s authorisation under subsection (2) (b), the
chief executive must—
(a) consider any submission made by the entity; and
(b) either—
(i) revoke the suspension; or
(ii) give the entity notice of the chief executive’s intention to
revoke the authorisation under section 629.
629 Revocation
of operating entity’s authorisation
(1) The chief executive may revoke an entity’s authorisation under
section 627 as an operating entity for a therapeutic protection place if
the chief executive is satisfied that the entity—
(a) is not a suitable entity to operate a therapeutic protection place;
or
(b) has not complied with, or continued to comply with, the therapeutic
protection standards.
(2) The chief executive may also revoke an entity’s authorisation if
the entity asks the chief executive to revoke the authorisation.
(3) Before revoking an entity’s authorisation under subsection (1),
the chief executive must—
(a) give the entity written notice of the chief executive’s
intention to revoke the authorisation, including the chief executive’s
reasons; and
(b) tell the entity that the person may make a submission, in writing, to
the chief executive about the notice not later than 14 days after the day
the notice is given to the person; and
(c) if the entity makes a submission—consider the
submission.
(4) This section is in addition to the Legislation Act, section 180
(Power to make decision includes power to reverse or change).
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 A decision under this section is a reviewable decision
(see s 838).
Division
16.4.2 Therapeutic protection
plan
630 Public
advocate and official visitor may be given therapeutic protection
plan
If the public advocate or an official visitor asks the chief executive for
a therapeutic protection plan for a child or young person, the chief executive
must promptly give the public advocate or official visitor a copy of the
plan.
Note The therapeutic protection plan is protected information (see
ch 25).
Division
16.4.3 Non-treating health
professionals
631 Health
professionals—non-treating functions
(1) An operating entity for a therapeutic protection place may, orally or
in writing, authorise a health professional (a non-treating health
professional) to exercise non-treating functions under this chapter for
children and young people at the therapeutic protection place.
Note Health professional includes a doctor and nurse
registered under the Health Professionals Act 2004.
(2) An operating entity must ensure, as far as practicable, that a
child’s or young person’s treating health professional is not asked
to exercise a function as a non-treating health professional under this chapter
in relation to the child or young person.
(3) Subsection (2) does not apply if the operating entity believes on
reasonable grounds that—
(a) there is an imminent and serious threat to the personal safety of the
child or young person or someone else; and
(b) compliance with subsection (2) would exacerbate the threat.
(4) In this section:
treating health professional, in relation to a child or young
person, means a health professional who has a professional relationship with the
child or young person for the provision of health services.
Division
16.4.4 Therapeutic protection
register
632 Therapeutic
protection register
(1) The operating entity for a therapeutic protection place must keep a
register (a therapeutic protection register) of children and young
people for whom the Childrens Court makes an interim therapeutic protection
order or a therapeutic protection order and who are confined at the therapeutic
protection place.
(2) The therapeutic protection register must include the following details
for each child or young person for whom the Childrens Court makes an interim
therapeutic protection order or a therapeutic protection order:
(a) name, sex and date of birth;
(b) details of the therapeutic protection order;
(c) the therapeutic protection plan for each proposed period of
confinement;
(d) the therapeutic protection history for each period of
confinement;
(e) if the child or young person is strip searched or body searched during
a period of confinement—
(i) the reason for the search; and
(ii) when and where the search was conducted; and
(iii) the name of each person present at any time during the search;
and
(iv) if, under section 599 (4), section 611 (4) or
section 616 (4), a requirement for a person present at the search to
be the same sex as the child or young person was not complied with—the
operating entity’s reasons for believing the requirement did not apply;
and
(v) details of anything seized during the search; and
(vi) details of any force used for conducting the search, and why force
was used;
Note Strip searches are authorised under
s 597. Body searches are authorised under s 608.
(f) if force was used on the child or young person during the period of
confinement—the reason why force was used;
(g) where and with whom the child or young person lived before the period
of confinement;
(h) anything else prescribed by regulation.
Note Information in the therapeutic
protection register is protected information (see ch 25).
(3) The register may contain anything else the operating entity for the
therapeutic protection place considers relevant.
633 Therapeutic
protection register—who may have access?
(1) The following people may have access to a therapeutic protection
register:
(a) the chief executive or a person authorised by the chief
executive;
(b) a magistrate;
(c) a judge;
(d) the ombudsman;
(e) an official visitor;
(f) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(g) the public advocate;
(h) a person prescribed by regulation.
(2) The operating entity for a therapeutic protection place must ensure
that the therapeutic protection register kept by the operating entity is only
accessed by the people mentioned in subsection (1).
Note An authorised person may, at any reasonable time, enter a
therapeutic protection place (see s 815).
634 Therapeutic
protection register—public advocate to inspect
The public advocate must inspect the therapeutic protection register at
least once every 3 months.
Chapter
17 Care and
protection—interstate transfer of orders and
proceedings
The object of this chapter is to provide for the transfer of care and
protection orders and proceedings between the ACT and a State or between the ACT
and New Zealand—
(a) so that children and young people who are in need of protection may be
protected despite moving from one jurisdiction to another; and
(b) to facilitate the timely and expeditious finalisation of court
proceedings for the protection of a child or young person; and
(c) to recognise the desirability of orders relating to the care and
protection of a child or young person having effect, and being enforced, in the
jurisdiction where the child or young person lives.
In this chapter:
child welfare law—see section 639.
child welfare order, for a child or young person—see
section 637.
child welfare proceeding—see
section 638.
government agency means a government department (however
described) or statutory authority of the State.
interim child welfare order—see
section 660.
interstate law—see section 640.
interstate officer—see section 641.
participating State means a State where an interstate law is
in force.
sending State, for a child welfare order or child welfare
proceeding, means the State from which the order or proceeding is transferred
under this chapter or an interstate law.
State includes New Zealand.
State Childrens Court, of a State, means the court with
jurisdiction to hear and decide a child welfare proceeding in the State at first
instance.
welfare body, for a State, means—
(a) a Minister of the State; or
(b) a government agency of the State; or
(c) the chief executive (however described) of a government agency of the
State; or
(d) a person who holds another position in, or is employed by, a
government agency of the State; or
(e) a statutory office holder; or
(f) an organisation, or the chief executive (however described) of an
organisation, in the State.
637 What
is a child welfare order?
In this chapter:
child welfare order means an order under a child welfare law
(other than an interim child welfare order) made in favour of, or giving
responsibility to, a welfare body, that—
(a) provides for the parental responsibility, guardianship or custody of a
child or young person; or
(b) provides for supervision of a child or young person; or
(c) provides for contact with a child or young person; or
(d) relates to specific things that a person must do or not do that are
directly related to a child or young person’s care or protection.
638 What
is a child welfare proceeding?
In this chapter:
child welfare proceeding means a proceeding brought in a
court under a child welfare law for—
(a) the making of a child welfare order or an interim child welfare order;
or
(b) the amendment, extension or revocation of a child welfare order or an
interim child welfare order.
639 What
is a child welfare law?
(1) In this Act:
child welfare law means—
(a) the care and protection chapters; or
(b) a law of a State that corresponds to the care and protection chapters;
or
(c) a law of a State declared by the Minister under subsection (2) to
be a child welfare law for this chapter.
(2) The Minister may, in writing, declare a law of a State to be a child
welfare law for this chapter if satisfied that the law corresponds, or
substantially corresponds, to the care and protection chapters.
(3) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
640 What
is an interstate law?
(1) In this chapter:
interstate law means—
(a) a law of a State that corresponds to this chapter; or
(b) a law declared by the Minister under subsection (2) to be an
interstate law for this chapter.
(2) The Minister may, in writing, declare a law of a State to be an
interstate law for this chapter if satisfied that the law corresponds or
substantially corresponds to this chapter.
(3) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
641 Who
is an interstate officer?
(1) In this chapter:
interstate officer, for a State, means—
(a) the person holding the position that has the main responsibility,
under the child welfare law of the State, for the protection of children and
young people in the State; or
(b) the holder of a position in the State that is declared by the Minister
under subsection (2) to be an interstate officer position for the State for
this chapter.
(2) The Minister may, in writing, declare a position in a State to be an
interstate officer position for the State for this chapter.
(3) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
Part
17.2 Interstate transfer of ACT child
welfare orders
Division
17.2.1 Transfers of orders by chief
executive
642 Chief
executive may transfer child welfare order
(1) The chief executive may transfer a child welfare order (the home
order) for a child or young person to a participating State
if—
(a) in the chief executive’s opinion, a child welfare order to the
same or a similar effect as the home order could be made under the child welfare
law of the State; and
(b) the home order is not subject to an appeal to the Supreme Court or
affected by a proceeding for judicial review; and
(c) the relevant interstate officer has agreed to the transfer and to the
proposed terms of the child welfare order to be transferred (the
interstate order); and
(d) if the chief executive is satisfied that the child or young person is
able to understand the proposal to transfer the order—the chief executive
has sought and considered the child’s or young person’s views and
wishes; and
(e) anyone whose agreement to the transfer is required under
section 644 has agreed.
(2) The chief executive may include in the interstate order any condition
that could be included in a child welfare order of that kind made in the
relevant participating State.
(3) In making a decision under subsection (1) (a), the chief
executive must not take into account the period for which it is possible to make
a child welfare order of that kind in the State.
(4) The period for which an interstate order is to remain in force must be
decided by the chief executive and stated in the interstate order.
(5) The period must be—
(a) if the remaining period of the home order at the date of registration
of the interstate order in the participating State is a period for which an
order may be made under the child welfare law of the State—the remaining
period; or
(b) in any other case—as similar a period as may be made under that
law but not longer than the period of the home order.
643 Chief
executive transfer—considerations
In deciding whether to transfer a child welfare order for a child or young
person to a participating State, the chief executive must have regard
to—
(a) the matters mentioned in section 8 (Best interests of children and
young people paramount consideration); and
(b) the principles set out in section 9 (Principles applying to Act) and
section 10 (Aboriginal and Torres Strait Islander children and young people
principle); and
(c) the care and protection principles; and
(d) whether the chief executive or an interstate officer is in the better
position to exercise powers and responsibilities under a child welfare order for
the child or young person; and
(e) the desirability of a child welfare order being an order under the
child welfare law of the State where the child or young person lives;
and
(f) the desirability of orders relating to the care and protection of a
child or young person having effect, and being enforced, in the jurisdiction
where the child or young person lives; and
(g) any sentencing order (other than a fine) in force in relation to the
child or young person or any criminal proceedings pending against the child or
young person in any court.
644 Chief
executive transfer—certain people must agree
(1) For section 642 (1) (e), agreement to the transfer of
the order for the child or young person is required from—
(a) for a young person who is school-leaving age or older—the young
person; and
Note School-leaving age is 15 years old
(see dict).
(b) each person who has daily care responsibility or long-term care
responsibility for the child or young person; and
Note Parental responsibility provisions
are dealt with in pt 14.6.
(c) each person who is authorised to decide where or with whom the child
or young person must live under a residence provision in a care and protection
order; and
(d) each person who is allowed contact with the child or young person
under a contact provision in a care and protection order for the child or young
person.
Note Contact provisions are dealt with
in pt 14.8.
(2) If the child or young person lives in a State with a person who has
daily care responsibility for the child or young person under a parental
responsibility provision in a care and protection order in force for the child
or young person—
(a) it is sufficient if each person required to agree agrees to the child
or young person living in the State; and
(b) their agreement to the transfer is not required.
(3) If a relevant person lives in or is intending to live in the relevant
participating State—
(a) it is sufficient if each other relevant person agrees to the child or
young person living in the State; and
(b) the agreement of the person to the transfer is not required.
(4) Also, a person’s agreement is not required if—
(a) the person cannot be found after reasonable inquiry; or
(b) the person does not have the capacity to agree to the transfer;
or
(c) for agreement required from the young person—the young person
does not have sufficient maturity or developmental capacity to agree to the
transfer.
(5) In this section:
relevant person, for a child or young person,
means—
(a) a parent of the child or young person; and
(b) a person who is authorised to decide where or with whom the child or
young person must live under a residence provision in a care and protection
order; and
(c) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person (under a parental responsibility
provision in a care and protection order or otherwise).
645 Chief
executive transfer—certain people must be told
(1) This section applies if the chief executive decides to transfer a
child welfare order for a child or young person to a participating State under
this division.
(2) As soon as practicable, but not later than 3 working days, after
the day the chief executive makes the decision, the chief executive must give
written notice to the following people about the decision:
(a) for a decision about a young person—the young person;
(b) the parents of the child or young person;
(c) each other person who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(d) the public advocate.
646 Chief
executive transfer—limited time for review
(1) A proceeding for judicial review of a decision of the chief executive
to transfer a child welfare order to a participating State must be started, and
originating process given to the chief executive, not later than
10 working days after the day the chief executive decided to transfer
the order.
(2) A proceeding for judicial review must comply with the relevant rules
of court.
(3) However, the Supreme Court must not extend the
10 working days mentioned in subsection (1).
(4) The lodging (or filing) and service on the chief executive of an
originating process mentioned in subsection (1) stays the operation of the
decision until the proceeding is determined.
Division
17.2.2 Transfer of orders by Childrens
Court
647 Childrens
Court transfer—application
(1) The chief executive may apply to the Childrens Court for an order
transferring a child welfare order to a participating State.
(2) The chief executive must give a copy of the application
to—
(a) each person who was a party to the proceeding in which the original
order was made; and
(b) the public advocate.
648 Childrens
Court transfer—criteria
The Childrens Court may, on application by the chief executive, make an
order transferring a child welfare order to a participating State
if—
(a) the child welfare order is not subject to an appeal to the Supreme
Court; and
(b) the relevant interstate officer has agreed to—
(i) the transfer; and
(ii) the proposed terms of the child welfare order.
649 Childrens
Court transfer—interstate orders
(1) If the Childrens Court decides to transfer a child welfare order (the
home order), the kind of child welfare order to be transferred
(the interstate order) must be a child welfare order
that—
(a) could be made under the child welfare law of the participating State;
and
(b) the court believes to be—
(i) to the same or a similar effect as the home order; or
(ii) otherwise in the best interests of the child or young
person.
(2) The Childrens Court may include in the interstate order any condition
that could be included in a child welfare order of that kind made in the
relevant participating State.
(3) In deciding under subsection (1) 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 Childrens Court must not take into account the period
for which it is possible to make a child welfare order of that kind in the
State.
(4) The period for which an interstate order is to remain in force must be
decided by the Childrens Court and stated in the interstate order.
(5) The period must be a period—
(a) for which a child welfare order of the kind of the interstate order
may be made under the child welfare law of the participating State;
and
(b) that the Childrens Court considers appropriate.
650 Childrens
Court transfer—considerations
(1) In deciding what order to make on an application under this division,
the Childrens Court must have regard to—
(a) the matters mentioned in section 8 (Best interests of children and
young people paramount consideration); and
(b) the principles set out in section 9 (Principles applying to Act) and
section 10 (Aboriginal and Torres Strait Islander children and young people
principle); and
(c) the care and protection principles; and
(d) whether the chief executive or an interstate officer is in the better
position to exercise powers and responsibilities under a child welfare order for
the child or young person; and
(e) the desirability of a child welfare order being an order under the
child welfare law of the State where the child or young person lives;
and
(f) the desirability of orders relating to the care and protection of a
child or young person having effect, and being enforced, in the jurisdiction
where the child or young person lives; and
(g) any information given to the Childrens Court by the chief executive or
anyone else about any sentencing order (other than a fine) in force in relation
to the child or young person or any criminal proceedings pending against the
child or young person in any court.
(2) The Childrens Court may also consider any report prepared by the chief
executive relevant to the proposed transfer.
651 Childrens
Court transfer—care plans
(1) The Childrens Court may make an order transferring a child welfare
order to a participating State only if it has received and considered a care
plan prepared by the chief executive for the child or young person.
(2) Unless the Childrens Court orders otherwise, the chief executive must
provide a copy of the care plan to each person who was a party to the proceeding
in which the original order was made.
652 Childrens
Court transfer—appeal applications
(1) This section applies if the Childrens Court has made a final order
transferring a child welfare order to a participating State (the final
order).
(2) A party to the application for the order may appeal on a question of
law to the Supreme Court.
(3) The appeal must be started, and originating process must be given to
the chief executive, not later than 10 working days after the day the
final order was made.
(4) The appeal operates as stay of the final order.
(5) The appeal must comply with the relevant rules of court.
(6) However, the Supreme Court must not extend the
10 working days mentioned in subsection (3).
653 Childrens
Court transfer—appeals
(1) The Supreme Court must hear and decide the appeal as quickly as
possible.
(2) After deciding the appeal, the Supreme Court may make any order it
considers appropriate, including an order remitting the case for rehearing to
the Childrens Court with or without a direction in law.
(3) An order, other than an order remitting the case for rehearing to the
Childrens Court, may be enforced as an order of the Supreme Court.
(4) The Supreme Court may make any interim care and protection order
pending the hearing of the appeal that the Childrens Court has jurisdiction to
make.
Note Interim care and protection orders are dealt with in div
14.3.2.
Division
17.2.3 Interstate registration of ACT
orders
654 Interstate
registration of ACT orders—effect
(1) A child welfare order made by the Childrens Court under the care and
protection chapters for a child or young person ceases to have effect when an
order for the child or young person is registered in a participating State under
an interstate law.
(2) However, if the registration is revoked in the participating State
under the interstate law, the order that ceased to have effect is revived and
has effect in accordance with its terms.
655 Interstate
registration of ACT orders—revocation
(1) This section applies if the registrar of the Childrens Court is told
under a provision of an interstate law equivalent to section 670 that the
registration of an order transferring a child welfare order to a participating
State has been revoked.
(2) The registrar must tell the chief executive about the
revocation.
(3) The chief executive must tell the following people about the
revocation:
(a) the child or young person who is the subject of the transferred order
or proceeding;
(b) the parents of the child or young person;
(c) each other person who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(d) the parties to the proceeding in which the decision to transfer the
order or proceeding was made.
656 Interstate
registration of ACT orders—Childrens Court file
(1) This section applies if, under this division—
(a) a child welfare order is transferred to a State Childrens
Court—
(i) by the chief executive under division 17.2.1; or
(ii) by the Childrens Court under division 17.2.2; and
(b) the transfer decision or an order transferring a child welfare order
to a participating State is not subject to appeal or review or a stay;
and
(c) the time for starting an appeal or seeking a review has
ended.
(2) The registrar of the Childrens Court must give the following things to
the State Childrens Court of the participating State:
(a) all documents filed in the Childrens Court for the child welfare
proceeding for the child welfare order;
(b) an extract from any part of the register that relates to the child
welfare proceeding for the child welfare order.
Part
17.3 Interstate transfer of ACT child
welfare proceedings
657 Transfer
of ACT proceedings—applications
(1) The chief executive may apply to the Childrens Court for an order
transferring a child welfare proceeding pending in the court to the State
Childrens Court of a participating State.
(2) The chief executive must give a copy of the application
to—
(a) if the order relates to a young person—the young person;
and
(b) the parents of the child or young person; and
(c) each other person who has daily care responsibility, or long-term care
responsibility, for the child or young person; and
(d) the public advocate.
658 Transfer
of ACT proceedings—criteria
(1) The Childrens Court may, on application by the chief executive, make
an order transferring a child welfare proceeding pending in the court to the
State Childrens Court of a participating State if the relevant interstate
officer has agreed to the transfer.
(2) The proceeding is discontinued in the Childrens Court when the order
mentioned in subsection (1) is registered in the State Childrens Court of the
participating State under the interstate law.
659 Transfer
of ACT proceedings—considerations
In deciding whether to make an order transferring a child welfare
proceeding pending in the court to the State Childrens Court of a participating
State, the Childrens Court must have regard to—
(a) whether another proceeding for the child or young person is pending,
or has previously been heard and decided, under the child welfare law in the
participating State; and
(b) where any matter giving rise to the proceeding in the court happened;
and
(c) where any of the following people lives or is likely to
live:
(i) the child or young person;
(ii) the parents of the child or young person;
(iii) each other person who has daily care responsibility, or long-term
care responsibility, for the child or young person;
(iv) any other significant people for the child or young person.
660 Transfer
of ACT proceedings—interim orders
(1) If the Childrens Court makes an order transferring a child welfare
proceeding pending in the court to the State Childrens Court of a participating
State, the court must also make an interim order (an interim child welfare
order) for the care, welfare or development of the child or young
person.
(2) An interim child welfare order may do any of the following:
(a) give parental responsibility for the child or young person to
someone;
(b) allow contact between the child or young person and someone
else;
(c) give responsibility for the supervision of the child or young person
to—
(i) the interstate officer in the participating State; or
(ii) someone else in that State to whom responsibility for the supervision
of a child or young person could be given under the child welfare law of that
State.
(3) The length of an interim child welfare order—
(a) must be stated in the order; and
(b) must not be longer than 30 days.
(4) The State Childrens Court of the participating State may amend, extend
or revoke the interim child welfare order.
661 Transfer
of ACT proceedings—appeal applications
(1) This section applies if the Childrens Court has made a final order
transferring a child welfare proceeding pending in the court to the State
Childrens Court of a participating State (the final
order).
(2) A party to the application for the order may appeal on a question of
law to the Supreme Court.
(3) The appeal must be started, and originating process must be given to
the chief executive, not later than 10 working days after the day the
final order was made.
(4) The appeal operates as stay of the final order but not of any interim
child welfare order made at the same time as the final order.
(5) The appeal must comply with the relevant rules of court.
(6) However, the Supreme Court must not extend the
10 working days mentioned in subsection (3).
662 Transfer
of ACT proceedings—appeals
(1) The Supreme Court must hear and decide the appeal as quickly as
possible.
(2) After deciding the appeal, the Supreme Court may make any order it
considers appropriate, including an order remitting the case for rehearing to
the Childrens Court with or without a direction in law.
(3) An order, other than an order remitting the case for rehearing to the
Childrens Court, may be enforced as an order of the Supreme Court.
(4) The Supreme Court may—
(a) make an order staying the operation of an interim child welfare order
made at the same time as the appealed order; or
(b) amend, extend or revoke an interim child welfare order made at the
same time as the appealed order; or
(c) make any interim care and protection order pending the hearing of the
appeal that the Childrens Court has jurisdiction to make.
Note Interim care and protection orders
are dealt with in div 14.3.2.
663 Transfer
of ACT proceedings—revocation of registration
(1) This section applies if the registrar of the Childrens Court is told
under a provision of an interstate law equivalent to section 672 that the
registration of an order transferring a child welfare proceeding pending in the
court to the State Childrens Court of a participating State has been
revoked.
(2) The registrar must tell the chief executive about the
revocation.
(3) The chief executive must tell the following people about the
revocation:
(a) the child or young person who is the subject of the transferred order
or proceeding;
(b) the parents of the child or young person;
(c) each other person who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(d) the parties to the proceeding in which the decision to transfer the
order or proceeding was made.
664 Transfer
of ACT proceedings—Childrens Court file
(1) This section applies if, under this division—
(a) a child welfare proceeding is transferred to a State Childrens Court
by the Childrens Court under part 17.3 (Interstate transfer of ACT child welfare
proceedings); and
(b) the order transferring a child welfare proceeding pending in the court
to the State Childrens Court of a participating State is not subject to appeal
or review or a stay; and
(c) the time for starting an appeal or seeking a review has
ended.
(2) The registrar of the Childrens Court must give the following things to
the State Childrens Court of the participating State:
(a) all documents filed in the Childrens Court for the child welfare
proceeding;
(b) an extract from any part of the register that relates to the child
welfare proceeding.
Part
17.4 ACT registration of interstate
child welfare orders
665 ACT
registration—interstate child welfare orders
(1) If a child welfare order (an interstate child welfare
order) is transferred to the ACT under an interstate law, the chief
executive must file a copy of the interstate child welfare order in the
Childrens Court for registration.
(2) The chief executive must not file an interstate child welfare order
if, under the interstate law—
(a) the decision or order to transfer the interstate child welfare order
is subject to appeal or review or a stay; or
(b) the time for instituting an appeal or seeking a review has not
expired.
(3) If the chief executive files an interstate child welfare order for
registration in the court, the court must register the interstate child welfare
order.
666 ACT
registration of interstate orders—interstate
registrar
If an interstate child welfare order is registered in the Childrens Court
under section 665, the registrar of the court must tell the following
people about the registration:
(a) the appropriate officer of the State Childrens Court of the sending
State;
(b) the interstate officer in that State.
667 ACT
registration of interstate orders—effect
(1) If an interstate child welfare order is registered in the Childrens
Court under section 665—
(a) the order is for all purposes (except for appeal) a care and
protection order of the relevant kind made by the court on the day it is
registered; and
Note Care and protection orders are
dealt with in ch 14.
(b) the order may be amended, extended or revoked under this Act;
and
(c) a contravention of the order may be dealt with under this
Act.
(2) If an interstate interim child welfare order is registered in the
Childrens Court under section 665—
(a) the order is for all purposes (except for appeal) an interim care and
protection order made by the court on the day it is registered; and
Note Interim care and protection orders
are dealt with in div 14.3.2.
(b) the order may be amended, extended or revoked under this Act;
and
(c) a contravention of the order may be dealt with under this
Act.
668 ACT
registration of interstate orders—application for
revocation
(1) This section applies if an interstate child welfare order for a child
is registered in the Childrens Court under section 665.
(2) Any of the following people may apply to the court for revocation of
the registration of the order:
(a) the chief executive;
(b) the child or young person;
(c) a parent of the child or young person;
(d) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(e) a party to the proceeding in the State Childrens Court in the sending
State in which the decision to transfer the child welfare order was
made.
(3) If a person applies for revocation of registration of the order, the
registrar of the court must give a copy of the application to—
(a) the relevant interstate officer; and
(b) each person, other than the applicant, who could have made an
application.
669 ACT
registration of interstate orders—revocation
(1) The Childrens Court may revoke the registration of an interstate child
welfare order registered under section 665 only if satisfied that it was
inappropriately registered because, under the interstate law—
(a) the decision of the interstate officer or the order of the State
Childrens Court of the sending State to transfer the order was subject to appeal
or review, or a stay, at the time of registration; or
(b) the time for starting an appeal or seeking a review had not
ended.
(2) If the registration of an interstate child welfare order is revoked,
the registrar of the Childrens Court must give the interstate child welfare
order to the State Childrens Court of the sending State.
(3) The revocation of the registration of an interstate child welfare
order does not prevent the later re-registration of the order.
670 ACT
revocation of interstate orders—interstate registrar
If the registration of an interstate child welfare order is revoked under
section 669, the registrar of the court must tell the following people
about the revocation:
(a) the appropriate officer of the State Childrens Court of the sending
State;
(b) the interstate officer in that State.
Part
17.5 ACT registration of interstate
child welfare proceedings
671 ACT
registration—interstate child welfare proceedings
(1) If a child welfare proceeding is transferred to the ACT under an order
(an interstate proceedings transfer order) under an interstate
law, the chief executive must file a copy of the following documents in the
Childrens Court for registration:
(a) the interstate proceedings transfer order;
(b) any interim child welfare order made at the same time as the
interstate proceedings transfer order (the interim
order).
(2) The chief executive must not file an interstate proceedings transfer
order if, under the interstate law—
(a) the interstate proceedings transfer order or interim order is subject
to appeal or review or a stay; or
(b) the time for instituting an appeal or seeking a review has not
expired.
(3) If the chief executive files an interstate proceedings transfer order
or interim order for registration in the court, the court must register the
interstate proceedings transfer order or interim order.
672 ACT
registration of interstate proceedings—interstate
registrar
If an interstate proceedings transfer order or interim order is registered
in the Childrens Court under section 671, the registrar of the court must
tell the following people about the registration:
(a) the appropriate officer of the State Childrens Court of the sending
State;
(b) the interstate officer in that State.
673 ACT
registration of interstate proceedings—effect
(1) If an interstate proceedings transfer order for a proceeding is
registered in the Childrens Court under section 671, the proceeding is
taken to have been started in the Childrens Court on the day the order is
registered.
(2) However, in deciding the proceeding, the court—
(a) is not bound by a finding of fact made in the proceeding in the State
Childrens Court of the sending State before its transfer; and
(b) may have regard to the transcript of, or evidence presented in, the
proceeding in the State Childrens Court of the sending State before its
transfer.
674 ACT
registration of interstate proceedings—application for
revocation
(1) This section applies if an interstate proceedings transfer order or
interim order for a child is registered in the Childrens Court under
section 671.
(2) Any of the following people may apply to the court for revocation of
the registration of the order:
(a) the chief executive;
(b) the child or young person;
(c) a parent of the child or young person;
(d) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(e) a party to the proceeding in the State Childrens Court in the sending
State in which the decision to transfer the interstate proceedings transfer
order or interim order was made.
(3) If a person applies for revocation of registration of the order, the
registrar of the court must give a copy of the application to—
(a) the relevant interstate officer; and
(b) each person, other than the applicant, who could have made an
application.
675 ACT
registration of interstate proceedings—revocation
(1) This section applies if an interstate proceedings transfer order or
interim order is registered in the Childrens Court under
section 671.
(2) The Childrens Court may revoke the registration of the interstate
proceedings transfer order or interim order only if satisfied that the order was
inappropriately registered because, under the interstate law—
(a) the order of the State Childrens Court of the sending State to
transfer the order was subject to appeal or review, or a stay, at the time of
registration; or
(b) the time for starting an appeal or seeking a review had not
ended.
(3) If the registration of an interstate proceedings transfer order or
interim order is revoked, the registrar of the Childrens Court must give the
interstate proceedings transfer order or interim order to the State Childrens
Court of the sending State.
(4) The revocation of the registration of an interstate proceedings
transfer order or interim order does not prevent the later re-registration of
the order.
676 ACT
registration of interstate proceedings—interstate
registrar
If the registration of an interstate proceedings transfer order or interim
order is revoked under section 675, the registrar of the court must tell
the following people about the revocation:
(a) the appropriate officer of the State Childrens Court of the sending
State;
(b) the interstate officer in that State.
Part
17.6 Interstate transfer of child
welfare orders and proceedings—miscellaneous
677 ACT
registration of interstate orders and proceedings—Maori children and young
people
(1) This section applies if—
(a) a child welfare order or child welfare proceeding for a child or young
person is transferred under an interstate law to the ACT from New Zealand;
and
(b) the child or young person is a Maori child or young person.
(2) In deciding what finding or order to make in a proceeding for the
child or young person under this Act, the Childrens Court must have regard to
the principle that, if practicable, the relationship between the child or young
person and his or her family, whanau, hapu, iwi, family groups and community
group must be maintained and strengthened.
Chapter
18 Care and protection—police
assistance
Note to ch 18
A registered family group conference agreement has effect as if it were an
order of the Childrens Court and may be enforced accordingly
(see s 392).
Part
18.1 Assistance in carrying out orders
etc
(1) The chief executive may ask the chief police officer for assistance in
carrying out any of the following actions (the action):
(a) an appraisal order;
Note Appraisal orders are dealt with in
s 371.
(b) a care and protection appraisal;
Note Care and protection appraisals are
dealt with in s 365.
(c) emergency action;
Note Emergency action is dealt with in
pt 13.1.
(d) a care and protection assessment;
Note Care and protection assessments are
dealt with in s 366.
(e) an assessment order;
Note Assessment orders are dealt with in
div 14.3.3.
(f) an interim care and protection order;
(g) a care and protection order;
Note Care and protection orders are
dealt with in s 421.
(h) a DVPO interim protection order;
Note DVPO interim protection orders are
dealt with in s 458.
(i) a DVPO final protection order;
Note DVPO final protection orders are
dealt with in s 459.
(j) an interim therapeutic protection order;
Note Interim therapeutic protection
orders are dealt with in div 16.2.3.
(k) a therapeutic protection order.
Note Therapeutic protection orders are
dealt with in s 531.
(2) The chief police officer must, if asked, give assistance to the chief
executive by assigning police officers to assist the chief executive in carrying
out the action.
(1) A police officer assisting the chief executive in carrying out an
action may do any of the following if authorised by a warrant:
(a) enter or break into, remain in and search any premises or
place;
(b) seize and remove anything that the police officer believes on
reasonable grounds may provide evidence relevant to the action;
(c) take photographs or audio or video recordings, or make sketches, of
anything relevant to the action;
(d) require a person who may be able to give information relevant to the
action to answer a question.
Note The Legislation Act, s 170 and s 171 deals with the
application of the privilege against selfincrimination and client legal
privilege.
(2) However, a police officer may do something mentioned in
subsection (1) without a warrant if the police officer believes on
reasonable grounds that the delay involved in getting a warrant would prejudice
the action or the safety of a child or young person.
(3) A police officer assisting the chief executive in carrying out an
action may be accompanied by other police officers or authorised people if it is
reasonable and necessary.
680 Seized
things may be kept until matter completed
If something is seized under section 679 (1) (b), the chief
police officer or the chief executive may keep the thing until the action is
completed and any proceeding arising out of the action is finalised.
681 Offence—failure
to answer police questions
A person commits an offence if—
(a) the person is required by a police officer under
section 679 (1) (d) to answer a question; and
(b) the person does not take reasonable steps to answer the
question.
Maximum penalty: 50 penalty units.
Note 1 The Legislation Act, s 170 and s 171 deal with the
application of the privilege against selfincrimination and client legal
privilege.
Note 2 A person who gives information honestly and without
recklessness does not breach professional ethics etc and is protected from civil
liability (see s 873).
Note 3 Giving false or misleading information to the police officer
is an offence (see Criminal Code, s 338).
682 Safe
custody—parental responsibility to chief executive
If a child or young person is taken into safe custody under a safe custody
warrant, the chief executive has daily care responsibility for the child or
young person.
Note If a child or young person is taken into safe custody under a
safe custody warrant, the chief executive must ensure that the matter is brought
before the Childrens Court as soon as practicable, but not later than
1 working day, after the day the child or young person is taken into safe
custody (see s 693).
683 What
is a safe custody warrant?
In this Act:
safe custody warrant means a warrant to enter stated premises
to take a child or young person into safe custody.
684 Safe
custody warrant—application
(1) The chief executive or a police officer may apply to a magistrate for
a safe custody warrant if the chief executive or police officer believes on
reasonable grounds that the criteria for issuing the safe custody warrant are
satisfied.
(2) The application must be sworn and state the grounds on which the
warrant is sought.
(3) The magistrate may refuse to consider the application until the chief
executive or police officer gives the magistrate all the information the
magistrate requires about the application in the way the magistrate
requires.
Note 1 Statements, documents and reports must be included in the
application (see s 695).
Note 2 Oral applications may also be made
(see s 697).
685 Safe
custody warrant—criteria
(1) The magistrate may issue a safe custody warrant for a child or young
person, for stated premises, if satisfied that—
(a) any of the following orders are in force for the child or young
person:
(i) an appraisal order;
Note Appraisal orders are dealt with in s 371.
(ii) an interim care and protection order;
Note Interim care and protection orders are dealt with in s
432.
(iii) an assessment order;
Note Assessment orders are dealt with in s 435.
(iv) a care and protection order;
Note Care and protection orders are dealt with in s 421.
(v) a DVPO interim protection order;
Note DVPO interim protection orders are dealt with in s
458.
(vi) a DVPO final protection order;
Note DVPO final protection orders are dealt with in s 459.
(vii) a therapeutic protection order;
Note Therapeutic protection orders are dealt with in s
531.
(viii) an interim therapeutic protection order; and
Note Interim therapeutic protection orders are dealt with in
div 16.2.3.
(b) there are reasonable grounds for suspecting that—
(i) someone has contravened the order; and
(ii) because of the contravention, the child or young person is in danger;
and
(iii) the child or young person is at the premises or may be at the
premises within the next 14 days.
(2) The magistrate may also issue a safe custody warrant for a child or
young person, for stated premises, if satisfied that—
(a) a therapeutic protection order, or an interim therapeutic protection
order, is in force for the child or young person; and
Note Therapeutic protection orders are
dealt with in pt 16.2. Interim therapeutic protection orders are dealt with in
div 16.2.3.
(b) there are reasonable grounds for suspecting that—
(i) the child or young person is absent without lawful authority or excuse
from the therapeutic protection place where the child or young person has been
directed to be confined under the therapeutic protection order; and
(ii) the child or young person is at the premises or may be at the
premises within the next 14 days.
686 Safe
custody warrant—content
(1) A safe custody warrant must state—
(a) the name of the child or young person who may be taken into safe
custody under the warrant; and
(b) the order for which the safe custody warrant is issued; and
(c) that the chief executive or police officer may, with any necessary and
reasonable assistance and force, enter stated premises and exercise the chief
executive’s or police officer’s powers under this part;
and
(d) the hours when the premises may be entered; and
(e) the date, not later than 14 days after the day the warrant is
issued, that the warrant ends; and
(f) the date that the transfer of daily care responsibility for the child
or young person to the chief executive ends (the safe custody
period).
(2) A safe custody warrant may also state the place where the child or
young person is to be placed by the person who executes the warrant.
687 Safe
custody warrant—application made other than in person
(1) The chief executive or a police officer may apply for a warrant by
phone, fax, radio or other form of communication if the chief executive or
police officer considers it necessary because of urgent circumstances.
(2) Before applying for the warrant, the chief executive or police officer
must prepare an application stating the grounds on which the warrant is
sought.
(3) The chief executive or police officer may apply for the warrant before
the application is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy
to the chief executive or police officer if it is practicable to do
so.
(5) If it is not practicable to fax a copy to the chief executive or
police officer—
(a) the magistrate must tell the chief executive or police
officer—
(i) the terms of the warrant; and
(ii) the date and time the warrant was issued; and
(b) the chief executive or police officer must complete a form of warrant
(the warrant form) and write on it—
(i) the magistrate’s name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant’s terms.
(6) The faxed copy of the warrant, or the warrant form properly completed
by the chief executive or police officer, authorises the entry and the exercise
of the chief executive or police officer’s powers under this
part.
(7) The chief executive or police officer must, at the first reasonable
opportunity, send to the magistrate—
(a) the sworn application; and
(b) if the chief executive or police officer completed a warrant
form—the completed warrant form.
(8) On receiving the documents, the magistrate must attach them to the
warrant.
(9) A court must find that a power exercised by the chief executive or
police officer was not authorised by a warrant under this section
if—
(a) the question arises in a proceeding in the court whether the exercise
of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a
warrant under this section.
688 Safe
custody warrant—announcement before entry
(1) The chief executive or a police officer must, before anyone enters
premises under a safe custody warrant—
(a) announce that the chief executive or police officer is authorised to
enter the premises; and
(b) give anyone at the premises an opportunity to allow entry to the
premises; and
(c) if the occupier of the premises, or someone else who apparently
represents the occupier, is present at the premises—identify himself or
herself to the person.
(2) The chief executive or police officer is not required to comply with
subsection (1) if the chief executive or police officer believes on
reasonable grounds that immediate entry to the premises is required to
ensure—
(a) the safety of anyone (including the chief executive or police officer
or a person assisting); or
(b) that the effective execution of the warrant is not
frustrated.
689 Safe
custody warrant—details of warrant to be given to occupier
etc
If the occupier of premises, or someone else who apparently represents the
occupier, is present at the premises while a safe custody warrant is being
executed, the chief executive or police officer or a person assisting must make
available to the person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the
person.
690 Safe
custody warrant—occupier entitled to be present etc
(1) If the occupier of premises, or someone else who apparently represents
the occupier, is present at the premises while a safe custody warrant is being
executed, the person is entitled to observe the warrant being
executed.
(2) However, the person is not entitled to observe the warrant being
executed if—
(a) to do so would impede the execution of the warrant; or
(b) the person is under arrest, and allowing the person to observe the
warrant being executed would interfere with the objectives of the
warrant.
(3) This section does not prevent the warrant being executed at 2 or more
areas of the premises at the same time.
691 Safe
custody warrant—placement of child or young person
A child or young person taken into safe custody under a safe custody
warrant must be placed by the person who executed the warrant—
(a) in the place stated in the warrant; or
(b) if no place is stated—in a place decided by the chief
executive.
692 Offence—remove
child or young person
(1) A person commits an offence if—
(a) a child or young person has been taken into safe custody and is
subject to a safe custody placement; and
(b) the person removes the child or young person from a place;
and
(c) the removal is in contravention of the safe custody placement;
and
(d) the person knows the removal is in contravention of the safe custody
placement.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) Strict liability applies to subsection (1) (a).
(3) In this section:
safe custody placement, for a child or young person, means
the placement of the child under section 691 (Safe custody
warrant—placement of child or young person).
693 Safe
custody—matter must be brought to court promptly
(1) If a child or young person is taken into safe custody under a safe
custody warrant, the chief executive must ensure that the matter is brought
before the Childrens Court as soon as practicable, but not later than
1 working day, after the day the child or young person is taken into safe
custody.
Note A child or young person has a right to take part in a
proceeding in a court in relation to the child or young person (see Court
Procedures Act 2004, s 74A).
(2) When a matter is brought before the Childrens Court under this
section, the court may exercise any of its powers in relation to the child or
young person including the following:
(a) making or extending an appraisal order under division
11.2.3;
(b) making, extending, amending or revoking an interim care and protection
order under division 14.3.2;
(c) making, extending, amending or revoking an assessment order under
division 14.3.3;
(d) making, extending, amending or revoking a care and protection order
under part 14.5;
(e) making, extending, amending or revoking a therapeutic protection order
under part 16.2.
Chapter
19 Care and
protection—provisions applying to all proceedings under care and
protection chapters
694 Application—includes
cross-application
In this chapter:
application includes a cross-application.
695 Application—must
include statements, documents and reports
An application to a court under the care and protection chapters must be
accompanied by the following:
(a) a written statement of the substance of the oral evidence that the
applicant intends to present at the hearing of the application;
(b) a written copy of any document or expert report that the applicant
intends to rely on at the hearing of the application.
696 Application—statements
and reports to be signed etc
Unless otherwise directed by a court, a statement or report prepared for
use in a proceeding under the care and protection chapters—
(a) must be in the form of an affidavit; or
(b) must—
(i) be signed and dated by the person making the statement or report;
and
(ii) contain a declaration to the effect that the maker of the statement
or report believes it to be true and understands that it may be used in
court.
697 Application—oral
applications
(1) A person may, with the leave of the court, make an oral application
under this Act for a proceeding before, during or after the hearing of the
proceeding.
(2) Subsection (1) applies despite any requirement about service in
this Act.
(3) If an oral application is made, the court must direct the applicant
about—
(a) which (if any) of the requirements for service or notice of the making
of an application are to apply to the oral application and how they are to
apply; and
(b) whether a written application is required; and
(c) whether service of a written application is required.
(4) If the court does not give directions under subsection (3) for an
oral application, no service is required under this Act.
698 Application—withdrawal
or discontinuance
(1) A person who has applied to a court for an order under the care and
protection chapters may withdraw or discontinue the application before the end
of the proceeding by—
(a) telling, in writing, each person who was given the application;
and
(b) filing a notice of withdrawal or discontinuance with the
court.
(2) If another party to the proceeding agrees with the withdrawal or
discontinuance, the notice of withdrawal or discontinuance must have the
agreement endorsed on it.
699 Parties—who
are parties to an application?
(1) The following people are parties to an application under
the care and protection chapters:
(a) the applicant;
(b) the child or young person;
(c) someone given a copy of the application who takes part in the
proceeding (other than as a witness or representative);
Note Representation of children and
young people is dealt with in the Court Procedures Act 2004, pt 7A
(Procedural provisions—proceedings involving children).
(d) someone who is a participant in the proceeding (other than as a
witness or representative) who has been—
(i) asked to attend by the Childrens Court and been joined as a party to
the proceeding; or
(ii) joined as a party to the proceeding on the person’s own
application.
(2) However, the public advocate is a party to a proceeding under the care
and protection chapters only if the public advocate applies to be joined as a
party.
700 Parties—hearing
in party’s or other person’s absence
(1) If someone makes an application under the care and protection
chapters, the person may, at the same time, seek the leave of the court to have
the application heard in the absence of any other party or person who must be
given a copy of the application.
Note For people who must be given copies of applications under the
care and protection chapters, see:
(a) s 378 (Appraisal orders—who must be given
application);
(b) s 426 (Care and protection orders—who must be given
application);
(c) s 444 (Assessment orders—who must be given
application);
(d) s 540 (Therapeutic protection orders—who must be given
application).
(2) The court may give leave only if satisfied that notice of the
application to the other party or person would place a child or young person at
significant risk of significant harm.
701 Parties—failure
to attend proceeding
(1) This section applies if someone has been given a copy of an
application under the care and protection chapters.
(2) If the person does not attend the proceeding, the court
must—
(a) adjourn the proceeding and make any order about further service of the
person that the court considers appropriate; or
(b) make any other order or give any other direction that it considers
appropriate, including an order or direction that is binding on the
person.
702 Parties—court
may join affected party
(1) This section applies to a proceeding under the care and protection
chapters.
(2) If the court is satisfied that it should make an order binding on or
affecting someone who is not a party to the proceeding, the court may join the
person as a party to the proceeding.
(3) However, the court must give the person a reasonable opportunity to
make representations to the court about why the order should not be
made—
(a) before making the order; or
(b) if, because of the urgency of the case it is not possible to do so
before making the order—not later than a reasonable time after making the
order.
703 Parties—application
to join party
(1) This section applies to a proceeding for a child or young person under
the care and protection chapters.
(2) If someone (the applicant) applies to the court to be
joined as a party to the proceeding, the court may order the person be joined as
a party to the proceeding if it considers it appropriate to do so.
(3) If the applicant is the public advocate, the court must join the
public advocate as a party to the proceeding.
(4) If the applicant has been caring for the child or young person
continuously for 2 years or more, there is a rebuttable presumption that it
is appropriate to join the applicant as a party to the proceeding.
(5) An application may be made orally without notice to the parties to the
proceeding, but the court must give each party an opportunity to be heard on the
application before deciding whether to join the applicant as a party.
704 Parties—filed
material to be given to joined parties
If the court joins a person as a party to a proceeding under
section 702 or section 703—
(a) the person is entitled to material already filed in the proceeding
only if the court directs; and
(b) the court must direct what material already filed in the proceeding
must be given to the person, and by whom; and
(c) the court may make any further orders or give any further directions
about the conduct of the proceeding that the court considers
appropriate.
705 Parties—application
for removal of party
(1) A party to a proceeding under the care and protection chapters (the
applicant) may apply to the court for an order that another party
to the proceeding be removed as a party.
(2) The applicant must give a copy of the application to the following
people before the application is heard by the court:
(a) each party to the proceeding;
(b) the public advocate.
706 Parties—court
may remove party
(1) This section applies if the court is satisfied that a party to a
proceeding under the care and protection chapters—
(a) has been improperly or unnecessarily joined; or
(b) is no longer a proper or necessary party.
(2) The court may, on application by a party to a proceeding or on its own
initiative—
(a) order that the party is no longer a party; and
(b) make any other orders or give any other directions for the conduct of
the proceeding that the court considers appropriate.
(3) Before making an order under this section, the court must provide each
party to the proceeding with an opportunity to be heard on the application or
motion.
707 Parties—notice
of address for service
A party to a proceeding under the care and protection chapters must file
with the court, and give to each other party to the proceeding, a written
statement of the party’s name and address for service of
documents.
708 Parties—representation
(1) A party to a proceeding under the care and protection chapters may
appear before the court—
(a) in person; or
(b) represented by a lawyer; or
(c) with the leave of the court, represented by someone else.
Note Representation of children and young people is dealt with in
the Court Procedures Act 2004, pt 7A (Procedural
provisions—proceedings involving children).
(2) Also, the chief executive may appear before the court by the chief
executive’s delegate or someone authorised to appear on the chief
executive’s behalf.
(3) If a party to a proceeding under the care and protection chapters (the
represented party) is represented by a lawyer in the proceeding,
the lawyer must file with the court, and give to each other party to the
proceeding, a written statement that the lawyer acts for the represented party
and an address in the ACT for service of documents.
(4) A lawyer may stop representing a party to a proceeding under the care
and protection chapters only if the lawyer files with the court, and gives to
each other party to the proceeding, a written statement to that
effect.
709 Exclusion
of people from hearings
(1) This section applies to a proceeding for a child or young person under
the care and protection chapters.
(2) The court may order that someone must not be present in the courtroom
during all or part of the hearing of the proceeding if the court considers it
appropriate.
(3) This section applies to everybody including—
(a) the child or young person; and
(b) the parents of the child or young person; and
(c) anyone else who has daily care responsibility, or long-term care
responsibility, for the child or young person.
Part
19.3 Burden of
proof
In a proceeding under the care and protection chapters, a fact is proved if
it is proved on the balance of probabilities.
Part
19.4 Witnesses and
evidence
711 Procedures
at hearings to be informal
(1) A proceeding under the care and protection chapters must be carried
out as informally and quickly as—
(a) the requirements of this or any other Act allows; and
(b) a proper consideration of the matter allows.
(2) This section does not apply if another provision of this Act provides
otherwise.
712 Court
may call witnesses
(1) This section applies to a proceeding under the care and protection
chapters.
(2) The court may, on its own initiative, call a person as a witness whose
evidence may, in the court’s opinion, be of assistance to the
court.
713 Court
may summons people to attend
(1) This section applies if, in a proceeding under the care and protection
chapters—
(a) someone must be given an application; and
(b) the person has been given the application; and
(c) the person has not attended a hearing for the application.
(2) If the court considers that the attendance of the person is necessary
to allow the court to hear and decide the application, the court may do any of
the following that it considers appropriate to bring about the attendance of the
person:
(a) give a direction;
(b) issue a summons;
(c) issue a warrant.
(3) A summons must include a statement to the effect that—
(a) if the person does not attend the court, a warrant may be issued to
bring the person before the court; and
(b) there is a penalty for not taking all reasonable steps to attend court
in answer to the summons.
(4) The court may issue a warrant to bring a person before the court
if—
(a) a summons has been given to the person under this section;
and
(b) the person does not attend the court to answer to the
summons.
714 Child
or young person as witness
(1) A child or young person may be called as a witness in a proceeding
under the care and protection chapters only with the leave of the
court.
(2) If the court gives leave for a child or young person to be called as a
witness, the court may prohibit cross-examination of the child or young person
if satisfied that it is in the best interests of the child or young person to do
so.
715 Court
not bound by rules of evidence
(1) In a proceeding under the care and protection chapters, the
court—
(a) is not bound by the rules of evidence; and
(b) may inform itself of a matter in any way that it considers
appropriate.
(2) Also, if the court is making, extending, amending or revoking an order
under the care and protection chapters, the court may—
(a) admit and act on hearsay evidence; and
(b) take submissions from someone who is not a party.
716 Restriction
on taking evidence
If it appears to the court to be necessary or convenient for the proper
determination of the matters at issues in a proceeding, the court may restrict
the way or the extent to which someone, including a child or young person, is to
be examined or cross-examined for the proceeding.
717 Orders—obligations
on people
(1) A court making an order under the care and protection chapters may
make an order imposing an obligation on a person only if the
person—
(a) agrees to the order being made; or
(b) has been given an opportunity to be heard about the proposed order;
or
(c) cannot after reasonable inquiry be found.
(2) The court gives a person an opportunity to be heard about a proposed
order if the court has directed the person, in writing, to attend the proceeding
to be heard about the proposed making of an order (whether or not the person
attends the proceeding).
(1) The parties to an application under the care and protection chapters
may file with the court draft order (the draft consent order)
that, if made, would have the agreement of the parties.
(2) The draft consent order must be signed by—
(a) each party to the application; and
(b) each person who will be—
(i) required to comply with the order; or
(ii) directly affected by the order.
719 Orders—must
be given to people
As soon as practicable after making an order under the care and protection
chapters in a proceeding, the court must give a copy of the order
to—
(a) the chief executive; and
(b) the public advocate; and
(c) each lawyer representing a party to the proceeding who has, before the
date of the order, filed a notice of address for service; and
(d) if a party to the proceeding is not represented by a lawyer and has,
before the date of the order, filed a notice of address for service—the
party.
720 Residence,
contact and specific issues provisions—giving, amending or extending
directions
(1) This section applies to a care and protection order that includes 1 or
more of the following:
(a) a specific issues provision that includes a direction that a stated
person—
(i) do a stated thing; or
(ii) not do a stated thing; or
(iii) comply with a stated condition;
(b) a contact provision that includes a direction that a stated person
must not have contact with the child or young person;
(c) a residence provision that includes a direction—
(i) that a stated person must not live at the same premises as the child
or young person (including that the stated person must stop living at those
premises); or
(ii) that a stated person may live with the child or young person only
subject to stated conditions.
(2) If a court makes, amends or extends the care and protection order, the
court must give a copy of the order or revised order to the following
people:
(a) the stated person, by personal service on the person;
(b) the chief executive;
(c) the public advocate;
(d) the chief police officer;
(e) each other person who was a party to the proceeding;
(f) any other person the court considers appropriate.
(3) However, if the court considers personal service on the stated person
is impracticable, the court may give the copy of the order or revised order to
the stated person in another way.
Note Under the Legislation Act, s 247, a document may also
be served on an individual—
(a) by sending it by prepaid post, addressed to the individual, to a home
or business address of the individual; or
(b) by faxing it to a fax number of the individual; or
(c) by emailing it to an email address of the individual; or
(d) by leaving it, addressed to the individual, at a home or business
address of the individual with someone who appears to be at least 16 years
old and to live or be employed at the address.
(4) If the court considers it appropriate, the court may direct that a
police officer give the copy of the order or revised order to someone.
(5) If the court directs that a police officer give the copy of the order
or revised order to someone, the chief police officer must, if asked by the
registrar, arrange for the copy of the order or revised order to be given by a
police officer.
(6) In this section:
revised order means—
(a) if the order is amended—the order as amended; or
(b) if the order is extended—the order as extended.
Note 1 A specific issues provision, a contact provision or a
residence provision may be extended, amended or revoked under pt
19.5.
Note 2 In a proceeding for an appraisal order, a fact is proved if
it is proved on the balance of probabilities (see s 710).
Note 3 The court may make an order imposing an obligation on a
person only if the person agrees to it, has been given an opportunity to be
heard about it or cannot be found (see s 717).
721 Orders—statement
of reasons
(1) This section applies if a court—
(a) makes an order under the care and protection chapters in a proceeding;
or
(b) hears and decides an application for—
(i) extension of a therapeutic protection order under section 561;
or
(ii) amendment of a therapeutic protection order under section 568;
or
(iii) revocation of a therapeutic protection order under
section 569.
Note The court must record a written
statement of reasons for these decisions (see s 562 and
s 570).
(2) Not later than 28 days after the day the order is made, a party
to the proceeding may ask the court, in writing, to give the party a statement
of reasons for making, extending, amending or revoking the order.
(3) The court must give a written statement of reasons as soon as
practicable, but not later than 28 days, after the day the court receives
the request.
A court may make the following orders in relation to a proceeding under the
care and protection chapters:
(a) an order dispensing with service of a notice, order or other
instrument under the care and protection chapters;
(b) an order shortening the time for serving a notice, order or other
instrument under the care and protection chapters
723 Costs—parties
bear own unless court orders otherwise
(1) This section applies to a proceeding under the care and protection
chapters including—
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection
chapters.
(2) The parties to a proceeding must bear their own costs unless a court
exercising jurisdiction under this Act orders otherwise.
724 Costs—frivolous,
vexatious, dishonest application
(1) This section applies to a proceeding under the care and protection
chapters including—
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection
chapters.
(2) A court exercising jurisdiction under this Act may, on application or
on its own initiative, order the payment of costs in a proceeding if satisfied
that—
(a) an application in the proceeding is frivolous, vexatious or dishonest;
or
(b) there are exceptional circumstances that justify the order.
(3) A person who applies for an order for costs under this section must
give a copy of the application to the party from whom the costs are
sought.
725 Costs—parties
bear own costs unless order otherwise
(1) This section applies to a proceeding under the care and protection
chapters including—
(a) an interlocutory proceeding; and
(b) an appeal from a decision made under the care and protection
chapters.
(2) A court exercising jurisdiction under this Act may, on application or
on its own initiative, order someone’s costs be paid if the hearing of a
proceeding is adjourned because—
(a) someone else required to attend the hearing did not attend;
or
(b) someone else contravened a direction or order of the court.
(3) A person who applies for an order for costs under this section must
give a copy of the application to the party from whom the costs are
sought.
726 Costs—how
court may share costs
(1) This section applies if a court exercising jurisdiction under this Act
has made an order about costs under section 724 or
section 725.
(2) The court may order costs be paid by or shared between the parties in
the way the court orders.
(3) However, if the Childrens Court makes an order for the payment of
costs in a proceeding, the costs allowed are up to 50% of the costs that would
be allowed if the proceeding had been heard in the Supreme Court.
Chapter
20 Childcare
services
Part
20.1 Childcare
services—preliminary
727 Definitions—Act
and ch 20
(1) In this Act:
childcare centre—see section 732.
childcare service—see section 731.
family day care scheme—see section 733.
(2) In this chapter:
cancellation notice—see section 765.
childcare service licence, for a childcare service, means a
licence under section 746 (Childcare service licence—decision on
application) to operate the childcare service.
childcare worker, for a childcare service, means a person who
cares for a child for the childcare service.
compliance notice—see
section 759 (2).
compliance suspension notice—see
section 760 (2).
controlling person, for a childcare service—see
section 735.
intention to cancel notice—see
section 763 (2).
licensed childcare service means a childcare service operated
by a licensed proprietor for the childcare service.
licensed proprietor, of a childcare service, means a
proprietor of the childcare service who holds a childcare service licence to
operate the childcare service.
proposed controlling person, for a childcare service, means a
person who intends to be a controlling person for the childcare
service.
proposed proprietor, for a childcare service, means a person
who intends to own or operate the childcare service.
proprietor, for a childcare service—see
section 734.
responsible person, for a childcare service—see
section 737.
The objects of this chapter include—
(a) providing an effective licensing system for childcare services;
and
(b) imposing standards for childcare services.
Note The Minister may make childcare
services standards under s 886.
In making a decision or taking action under this chapter for a childcare
service, the following childcare services principles should be
applied:
(a) childcare services must provide care that is safe, positive and
nurturing;
(b) childcare services must promote the educational, social and
developmental wellbeing of children.
Note In making a decision under this chapter for a child or young
person, the decision-maker must regard the best interests of the child or young
person as the paramount consideration (see s 8).
In making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people (see s 8).
(1) This chapter does not apply to care provided for a
child—
(a) at a playgroup; or
(b) in conjunction with a meeting, function or similar activity that
involves a person who has daily care responsibility for the child, at the same
or adjacent premises (unless provided in conjunction with the person’s
usual employment); or
(c) by a family member (unless provided as part of a family day care
scheme); or
(d) by an out-of-home carer with whom the chief executive has placed the
child or young person under section 511; or
Note If the chief executive has daily
care responsibility for a child or young person, the chief executive must place
the child or young person with an out-of-home carer (see pt
15.4).
(e) by a government school or non-government school under the Education
Act 2004, whether provided during or outside school hours; or
(f) by a person providing home education to the child if the child is
registered, or provisionally registered, for home education under the
Education Act 2004; or
(g) that is incidental to the child’s participation in religious
instruction, sporting, educational, recreational or cultural events or
activities; or
(h) that is incidental to activities by the child as a member, or while
training to become a member, of a club or class sponsored by a non-profit
community organisation; or
(i) while the child is a patient in a hospital, including a day
hospital.
(2) In this section:
day hospital—see the Health Act 1993,
dictionary.
Part
20.2 Childcare
services—important concepts
731 What
is a childcare service?
In this Act:
childcare service means—
(a) a childcare centre; or
(b) a family day care scheme.
732 What
is a childcare centre?
(1) In this Act:
childcare centre means a service, operated from premises,
that provides care—
(a) for at least the minimum number of children; and
(b) for payment or other material benefit.
(2) For this section, when working out how many children care is being
provided for by a service operated from premises—
(a) a child for whom care is provided on an emergency basis, or in
unexpected or exceptional circumstances, must not be counted unless the child is
cared for at the premises for 2 or more consecutive days; and
(b) if a child of a childcare worker is being cared for at the premises,
the child must be counted.
(3) In this section:
minimum number, of children, means—
(a) 5 young children; or
(b) 8 children, if no more than 4 children are young children.
young child means a child who is not yet
either—
(a) attending school as required under the Education Act 2004;
or
(b) registered, or provisionally registered, for home education under the
Education Act 2004.
733 What
is a family day care scheme?
(1) In this Act:
family day care scheme means a scheme that organises,
coordinates and monitors home-based care for children.
(2) In this section:
home-based care, for a child, means care provided by a person
for the child if—
(a) the care is provided at a home that is not the child’s home;
and
(b) the care is provided for payment or other material benefit;
and
(c) the person does not have—
(i) daily care responsibility for the child; or
(ii) long-term care responsibility for the child.
Examples—schemes that are not family
day care schemes
1 a scheme that organises, coordinates and monitors nannies
2 a scheme that organises, coordinates and monitors babysitters
Note 1 Daily care responsibility is dealt with in
s 19.
Long-term care responsibility is dealt with in
s 20.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
734 Who
is the proprietor of a childcare service?
In this chapter:
proprietor, of a childcare service, means—
(a) for a licensed childcare service—the licensed proprietor of the
childcare service; or
(b) in any other case—the person who owns or operates the childcare
service.
735 Who
is a controlling person for a childcare service?
In this chapter:
controlling person, for a childcare service, means a person
(other than the proprietor if the proprietor is not an individual) who exercises
control or may exercise control over the childcare service.
736 Offence—fail
to notify change of controlling person
(1) A licensed proprietor of a childcare service commits an offence
if—
(a) someone stops being a controlling person for the childcare service;
and
(b) the licensed proprietor does not tell the chief executive, in writing,
that the person has stopped being a controlling person not later than
30 days after the day the person stops being a controlling
person.
Maximum penalty: 5 penalty units.
(2) A licensed proprietor of a childcare service commits an offence
if—
(a) someone becomes a controlling person for the childcare service;
and
(b) the licensed proprietor does not tell the chief executive, in writing,
that the person has become a controlling person not later than 30 days
after the day the person becomes a controlling person.
Maximum penalty: 5 penalty units.
(3) An offence against this section is a strict liability
offence.
Part
20.3 Childcare
services—offences
Note to pt 20.3
An authorised person may, at any reasonable time, enter premises if a
licensed childcare service is operating on the premises or the chief executive
suspects on reasonable grounds that a childcare service is operating on the
premises (see s 816).
737 Who
is a responsible person for a childcare service?
In this chapter:
responsible person, for a childcare service—each of the
following is a responsible person:
(a) a proprietor of the childcare service;
(b) a controlling person for the childcare service;
(c) a person caring for a child for the childcare service.
Note A person may be a proprietor or controlling person for a
childcare service whether or not the childcare service is a licensed childcare
service (see s 734 and s 735).
738 Offence—fail
to protect child from injury
(1) A person commits an offence if the person—
(a) is a responsible person for a childcare service; and
(b) does not ensure that reasonable precaution is taken to protect a child
being cared for by the service from a hazard likely to cause injury.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) This section does not apply to a person caring for a child for a
childcare service if the person is—
(a) unable to take the precaution; and
(b) unable to ensure that the precaution is taken by someone
else.
739 Offence—fail
to supervise child
A person commits an offence if the person—
(a) is a responsible person for a childcare service; and
(b) does not take reasonable steps to ensure that a child being cared for
by the service is adequately supervised.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
740 Offence—unreasonably
discipline child
A person commits an offence if the person—
(a) is a responsible person for a childcare service; and
(b) subjects a child being cared for by the service to unreasonable
discipline.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
741 Offence—fail
to maintain buildings, equipment etc
A person commits an offence if the person—
(a) is a responsible person for a childcare service; and
(b) does not take reasonable steps to ensure that the buildings, grounds,
equipment and furnishings used in operating the service are maintained in a
safe, clean and hygienic condition and in good repair.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Part
20.4 Childcare
services—childcare service licences
Division
20.4.1 Childcare service
licences—application, eligibility, etc
742 Childcare
service licence—proposed proprietor may apply
(1) A proposed proprietor of a childcare service may apply for a childcare
service licence to operate the childcare service.
(2) The application must—
(a) be made in writing to the chief executive; and
(b) include complete details of suitability information
about—
(i) the proposed proprietor; and
(ii) each proposed controlling person for the childcare service.
Note 1 Suitability information is defined in
s 65.
Note 2 Giving false or misleading information is an offence against
the Criminal Code, s 338.
Note 3 If a form is approved under s 885 for this provision,
the form must be used.
Note 4 A fee may be determined under s 884 for this
provision.
(3) However, subsection (2) (b) (ii) does not apply in relation to a
proposed controlling person for the childcare service if the person is not known
to the proposed proprietor of the childcare service at the time the application
is made.
(4) If subsection (3) applies, the proposed proprietor must give the chief
executive complete details of suitability information about the proposed
controlling person for the childcare service by the later of the
following:
(a) 30 days after the controlling person for the childcare service becomes
known to the proposed proprietor;
(b) 30 days after the application is approved.
743 Childcare
service licence—further information
(1) This section applies if the chief executive has received an
application for a childcare service licence under section 742.
(2) The chief executive may ask the proposed proprietor to give the chief
executive more information about—
(a) the application, including information about the proposed proprietor
and any proposed controlling person; and
(b) the premises proposed to be used for operating the childcare
service.
(3) The chief executive may ask the proposed proprietor to allow the chief
executive to inspect the premises where the proposed proprietor proposes to
operate the childcare service.
Note An authorised person may, at any reasonable time, enter
premises if the chief executive has received an application under s 742 and
asked the proposed proprietor to allow the chief executive to inspect the
premises under s (3) and the proposed proprietor has agreed to allow the
chief executive to inspect the premises (see s 816).
744 Childcare
service licence—chief executive need not decide if no information or
inspection
(1) This section applies if, under section 743, the chief executive
asks the proposed proprietor—
(a) to give the chief executive more information but the proposed
proprietor does not give the chief executive the information; or
(b) to allow the chief executive to inspect premises but the proposed
proprietor does not allow the chief executive to inspect the premises.
(2) The chief executive need not decide whether the proposed proprietor is
eligible for a childcare service licence.
745 Childcare
service licence—eligibility
A proposed proprietor of a childcare service is eligible for a childcare
service licence to operate the childcare service only if the chief executive is
satisfied that—
(a) the proposed proprietor is a suitable entity to provide the childcare
service; and
(b) each proposed controlling person for the childcare service is a
suitable entity to provide the childcare service; and
(c) the proposed proprietor complies, and is likely to continue to comply,
with the childcare services standards; and
(d) the premises where the childcare service is to be operated comply with
the childcare services standards.
Note 1 Suitable entities to provide services are dealt with in pt
2.4.
Note 2 The Minister may make childcare services standards under
s 886.
746 Childcare
service licence—decision on application
(1) This section applies if the chief executive has received an
application for a childcare service licence under section 742.
(2) If the proposed proprietor is eligible under section 745 for a
childcare service licence to operate the childcare service, the chief executive
must give the proposed proprietor a licence to operate the childcare
service.
(3) If the proposed proprietor is not eligible under section 745 for
a childcare service licence to operate the childcare service, the chief
executive must refuse to give the proposed proprietor a licence to operate the
childcare service.
Note A decision under this subsection is a reviewable decision
(see s 838).
(4) The chief executive must, not later than the required
time—
(a) decide the application; and
(b) tell the proposed proprietor about the decision on the
application.
(5) For subsection (4), the required time is the latest
of the following:
(a) if the chief executive requires a proposed proprietor or proposed
controlling person to provide a reference or report under
section 68 (2) (a)—30 days after the day the chief
executive receives the reference or report;
(b) if the chief executive requires a proposed proprietor or proposed
controlling person to undergo a test or medical examination under
section 68 (2) (b)—30 days after the day the chief
executive receives the results of the test or examination;
(c) if the chief executive asks the proposed proprietor to give the chief
executive more information under section 743 (2)—30 days
after the day the chief executive receives the information;
(d) if the chief executive asks the proposed proprietor to allow the chief
executive to inspect premises under section 743 (3)—30 days
after the day the chief executive is allowed to inspect the premises;
(e) in any other case—30 days after the day the chief executive
receives the application.
Note Power given by a law to make a decision includes power to
reverse or change the decision. The power to reverse or change the decision is
exercisable in the same way, and subject to the same conditions, as the power to
make the decision (see Legislation Act, s 180).
747 Childcare
service licence—content
A childcare service licence must state—
(a) the name of the proprietor of the childcare service; and
(b) the kind of childcare service for which the licence is given;
and
(c) the length of the licence; and
(d) for a licence to operate a childcare centre—
(i) the premises where the childcare centre may operate; and
(ii) the maximum number of children that may be cared for at the childcare
centre; and
(iii) the age of the children who may be cared for at the childcare
centre.
748 Childcare
service licence—childcare service standards
(1) A childcare service licence is subject to the condition that the
service must be operated in a way that complies with the childcare services
standards.
Example
The Minister makes a childcare service standard for family day care
schemes. A licence for a childcare service of that kind is subject to the
condition that it is operated in a way that complies with the
standard.
Note 1 The Minister may make childcare services standards under
s 886.
Note 2 The Minister may make different standards in relation to
different childcare services or different classes of service, and standards that
apply differently by reference to stated exceptions or factors (see Legislation
Act, s 48.)
Note 3 An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
Note 4 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive may exempt a childcare service from 1 or more
childcare service standards (a temporary standards exemption) if
the chief executive believes on reasonable grounds that—
(a) the exemption is not likely to prejudice the safety and educational,
social and developmental wellbeing of a child or children being cared for by the
service; and
(b) the exemption is not likely to impact on the childcare service’s
promotion of the educational, social and developmental wellbeing of children;
and
(c) the childcare service has taken, or is taking, steps to comply with
any childcare service standard included in the exemption; and
(d) the exemption will not result in the proprietor of the childcare
centre failing to take all reasonably practicable steps to protect the health,
safety and welfare of employees of the childcare service.
(3) A temporary standards exemption must not include information that
identifies a childcare worker or would allow the identity of a childcare worker
to be worked out.
(4) A temporary standards exemption must be for not longer than
6 months.
(5) The chief executive may extend a temporary standards exemption if the
total period of the exemption is not longer than 12 months.
(6) A temporary standards exemption may be conditional.
(7) The chief executive may revoke a temporary standards exemption at any
time on reasonable grounds.
(8) A temporary standards exemption is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
749 Childcare
service licence—length
(1) The chief executive must not give a childcare service licence for
longer than 3 years.
(2) However, if a licensed proprietor of a childcare service has applied
for renewal of the licence under section 753, the chief executive may
extend the licence until the application is decided.
750 Childcare
service licence—extensions
(1) If a childcare service licence is shorter than 3 years, the
licensed proprietor may apply for an extension of the licence.
Note 1 If a form is approved under s 885 for this provision,
the form must be used.
Note 2 A fee may be determined under s 884 for this
provision.
(2) If the licensed proprietor would be eligible under section 745
(Childcare service licence—eligibility) for the licence as extended, the
chief executive must—
(a) extend the licence to a total period of not longer than 3 years;
and
(b) tell the licensed proprietor, in writing, about the
extension.
(3) If the licensed proprietor would not be eligible under section 745 for
the licence as extended, the chief executive must—
(a) refuse to extend the licence; and
(b) tell the licensed proprietor, in writing, about the refusal.
Note A decision under this subsection is a reviewable decision
(see s 838).
(4) The chief executive must decide the application, and tell the
proprietor about the decision, not later than 30 days after the day the
chief executive receives the application.
751 Childcare
service licence—amendment
(1) A licensed proprietor of a childcare service may apply to the chief
executive to amend the licence in relation to—
(a) the premises where the childcare centre may operate; and
(b) the maximum number of children that may be cared for at the childcare
centre; and
(c) the age of the children who may be cared for at the childcare
centre.
Note 1 If a form is approved under s 885 for this provision,
the form must be used.
Note 2 A fee may be determined under s 884 for this
provision.
(2) The chief executive may amend the licence if satisfied that the
childcare service can be operated under the amended licence in a way that
complies with the childcare service standards.
Note 1 A childcare service licence is subject to the condition that
the service must be operated in a way that complies with the childcare services
standards.
Note 2 The Minister may make childcare services standards under
s 886.
(3) The chief executive must decide the application, and tell the
proprietor about the decision, not later than 30 days after the day the
chief executive receives the application.
752 Childcare
service licence—transfer
(1) The licensed proprietor of a childcare service may apply to the chief
executive to transfer the childcare service licence to someone else.
Note 1 If a form is approved under s 885 for this provision,
the form must be used.
Note 2 A fee may be determined under s 884 for this
provision.
(2) The chief executive may transfer the licence if the person to whom the
license is proposed to be transferred would be eligible under this chapter for
the licence.
(3) The chief executive must, not later than 30 days after the day
the chief executive receives the application—
(a) decide the application; and
(b) if the decision is to transfer the licence, decide the date that the
transfer takes effect; and
(c) tell the licensed proprietor about the decision on the
application.
Note A decision under this subsection is a reviewable decision
(see s 838).
(4) A transfer takes effect on the date decided by the chief
executive.
Division
20.4.2 Childcare service
licences—renewal
753 Childcare
service licence renewal—licensed proprietor may apply
(1) A licensed proprietor of a childcare service may apply for renewal of
the licence.
(2) The application must be—
(a) made in writing to the chief executive; and
(b) received by the chief executive at least 30 days, but not more
than 60 days, before the childcare service licence ends.
(3) However, the chief executive may extend the time for making an
application.
Note 1 A licensed proprietor may apply to the chief executive for
the time to be extended, and the chief executive may extend the time, even
though the time has ended (see Legislation Act, s 151C).
Note 2 If a form is approved under s 885 for this provision,
the form must be used.
Note 3 A fee may be determined under s 884 for this
provision.
754 Childcare
service licence renewal—further information
(1) This section applies if the chief executive has received an
application for renewal of a childcare service licence under
section 753.
(2) The chief executive may ask the licensed proprietor to give the chief
executive more information about—
(a) the application, including information about the licensed proprietor
and any controlling person; and
(b) the premises used for operating the childcare service.
(3) The chief executive may ask the licensed proprietor to allow the chief
executive to inspect the premises where the licensed proprietor operates the
childcare service.
Note An authorised person may, at any reasonable time, enter
premises if the chief executive has received an application for renewal of a
childcare service licence under s 753 and asked the proposed proprietor to
allow the chief executive to inspect the premises under this section and the
proposed proprietor has agreed to allow the chief executive to inspect the
premises (see s 816).
755 Childcare
service licence renewal—chief executive need not decide if no information
or inspection
(1) This section applies if, under section 754, the chief executive
asks the licensed proprietor—
(a) to give the chief executive more information but the licensed
proprietor does not give the chief executive the information; or
(b) to allow the chief executive to inspect premises but the licensed
proprietor does not allow the chief executive to inspect the premises.
(2) The chief executive need not decide whether the licensed proprietor is
eligible for renewal of a childcare service licence.
756 Childcare
service licence renewal—eligibility
(1) A licensed proprietor of a childcare service is eligible for renewal
of the licence only if the chief executive is satisfied that the licensed
proprietor—
(a) is eligible for a childcare service licence under section 745;
and
(b) has complied with the childcare services standards during the period
of the childcare service licence.
Note 1 The proprietor and each controlling person must tell the
chief executive not later than 7 days after any of their suitability
information changes (see s 70).
Note 2 The Minister may make childcare services standards under
s 886.
(2) For subsection (1) (b), the chief executive may take into
account—
(a) any periods of noncompliance, or persistent noncompliance, with the
childcare services standards; and
(b) actions taken to rectify any noncompliance with the child care
services standards; and
(c) the future likelihood of compliance with the childcare service
standards.
757 Childcare
service licence renewal—decision on application
(1) This section applies if the chief executive receives an application
for renewal of a childcare service licence under section 753.
(2) If the licensed proprietor is eligible under section 756 for
renewal of the childcare service licence, the chief executive must give the
licensed proprietor a new childcare service licence.
(3) If the licensed proprietor is not eligible under section 756 for
renewal of the childcare service licence, the chief executive must refuse to
renew the childcare service licence.
Note A decision under this subsection is a reviewable decision
(see s 838).
(4) The chief executive must, not later than the required time for an
application—
(a) decide the application; and
(b) tell the licensed proprietor about the decision on the
application.
(5) For subsection (4), the required time for an application is the
latest of the following:
(a) if the chief executive requires the licensed proprietor or a
controlling person to provide a reference or report under
section 68 (2) (a)—30 days after the day the chief
executive receives the reference or report;
(b) if the chief executive requires the licensed proprietor or a
controlling person to undergo a test or medical examination under
section 68 (2) (b)—30 days after the day the chief
executive receives the results of the test or examination;
(c) if the chief executive asks the licensed proprietor to give the chief
executive more information under section 754 (2)—30 days
after the day the chief executive receives the information;
(d) if the chief executive asks the licensed proprietor, to allow the
chief executive to inspect premises under
section 754 (3)—30 days after the day the chief executive
is allowed to inspect the premises;
(e) in any other case—30 days after the day the chief executive
receives the application.
Note Power given by a law to make a decision includes power to
reverse or change the decision. The power to reverse or change the decision is
exercisable in the same way, and subject to the same conditions, as the power to
make the decision (see Legislation Act, s 180).
Division
20.4.3 Childcare service
licences—suspension and cancellation
758 Who
is an affected child?
In this division:
affected child, for an event, for a childcare service,
includes—
(a) a child who is being cared for by the childcare service when the event
happens; and
(b) a child who is enrolled at the childcare service, whether or not the
child attends the childcare service on the day the event happens.
759 Childcare
service licence—compliance notices
(1) This section applies if the chief executive believes on reasonable
grounds that the licensed proprietor of a childcare service has operated the
childcare service in a way that does not comply with this chapter or a childcare
services standard.
Note 1 For s (1), the chief executive may also give an intention to
cancel notice (see s 763).
Note 2 An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
Note 3 The Minister may make childcare services standards under
s 886.
(2) The chief executive may give a written notice (a compliance
notice) to the licensed proprietor of the childcare
service—
(a) directing the licensed proprietor to take the steps stated in the
notice to comply with the relevant provisions or standard not later than the day
stated in the notice; and
(b) telling the licensed proprietor that the licensed proprietor may make
a submission, orally or in writing, to the chief executive about the notice not
later than 7 days after the day the notice is given to the licensed
proprietor.
(3) If the licensed proprietor does not make a submission in accordance
with the compliance notice, the chief executive must take reasonable steps to
tell a person with daily care responsibility for each affected child about the
compliance notice.
Note A parent of a child has daily care responsibility for the child
unless that aspect of parental responsibility has been transferred to someone
else (see s 16 and s 17). Daily care responsibility for a child
may also be shared with someone else (see s 18).
(4) If the licensed proprietor makes a submission in accordance with the
compliance notice, the chief executive must consider the submission and must
either—
(a) confirm the compliance notice; or
(b) amend the compliance notice; or
(c) revoke the compliance notice.
Note A decision under this subsection is a reviewable decision
(see s 838).
(5) After making a decision under subsection (4), the chief executive
must tell the licensed proprietor about the decision.
(6) If the licensed proprietor makes a submission in accordance with the
compliance notice and the chief executive decides to confirm or amend the
compliance notice, the chief executive must take reasonable steps to tell a
person with daily care responsibility for each affected child about the
compliance notice and the decision to confirm or amend it.
760 Childcare
service licence—suspension for noncompliance
(1) This section applies if—
(a) the chief executive gives the licensed proprietor of a childcare
service a compliance notice under section 759; and
(b) the licensed proprietor does not take the steps stated in the notice
not later than the day stated in the notice or, if the chief executive allows
further time, the further time.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
(2) The chief executive may give a written notice (a compliance
suspension notice) to the licensed proprietor—
(a) suspending the childcare service licence starting on the date stated
in the notice; and
(b) telling the licensed proprietor that the licensed proprietor may make
a submission, in writing, to the chief executive about the notice not later than
30 days after the day the notice is given to the licensed
proprietor.
Note A decision under par (a) is a reviewable decision
(see s 838).
(3) If the chief executive gives a compliance suspension notice to the
licensed proprietor, the chief executive must also take reasonable steps to tell
a person with daily care responsibility for each affected child about the
suspension.
(4) The compliance suspension notice has effect until
either—
(a) the suspension is ended under section 761; or
(b) the notice is revoked by the chief executive by written notice given
to the licensed proprietor.
Note If a form is approved under s 885 for this provision, the
form must be used.
761 Childcare
service licence—ending noncompliance suspension
(1) This section applies if—
(a) the chief executive gives the licensed proprietor of a childcare
service a compliance suspension notice under section 760; and
(b) the licensed proprietor makes a submission in accordance with the
notice.
(2) The chief executive must consider the submission.
(3) After considering the submission, the chief executive may consider any
other relevant matter and must decide to either—
(a) confirm the suspension and decide the length of the suspension;
or
(b) end the suspension.
Note A decision under par (a) is a
reviewable decision (see s 838).
(4) The chief executive must tell—
(a) the licensed proprietor about the decision under subsection (3);
and
(b) anyone else about the decision who was told under section 760
about the suspension.
762 Childcare
service licence—suspension if children unsafe
(1) This section applies if the chief executive believes on reasonable
grounds that—
(a) children being cared for by a licensed childcare service are unsafe;
and
(b) the exercise of the chief executive’s powers under this section
is necessary to protect the children.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
(2) The chief executive may give a written notice (a safety
suspension notice) to the licensed proprietor, immediately suspending
the childcare service licence.
Note A decision under this subsection is a reviewable decision
(see s 838).
(3) If the chief executive gives a safety suspension notice
to the licensed proprietor, the chief executive must also take reasonable steps
to tell a person with daily care responsibility for each affected child about
the suspension.
Note A parent of a child has daily care responsibility for the child
unless that aspect of parental responsibility has been transferred to someone
else (see s 16 and s 17). Daily care responsibility for a child
may also be shared with someone else (see s 18).
(4) The safety suspension notice has effect until revoked by the chief
executive by written notice given to the licensed proprietor.
Note If a form is approved under s 885 for this provision, the
form must be used.
763 Childcare
service licence—notice of intention to cancel
(1) This section applies if—
(a) the licensed proprietor of a childcare service is convicted or found
guilty of an offence against this Act; or
(b) the chief executive believes on reasonable grounds
that—
(i) a childcare service licence was obtained improperly; or
(ii) the licensed proprietor of a childcare service has operated the
childcare service in a way that does not comply with a childcare services
standard; or
Note 1 The Minister may make childcare services standards under
s 886.
Note 2 For subpar (ii), the chief executive may instead give a
compliance notice (see s 759).
(iii) the licensed proprietor of a childcare service is not a suitable
entity to provide the childcare service; or
(iv) a controlling person for a childcare service is not a suitable entity
to provide the childcare service.
Note Suitable entities to provide services are dealt with in pt
2.4.
(2) The chief executive may give a written notice (an intention to
cancel notice) to the licensed proprietor telling the licensed
proprietor—
(a) that the chief executive intends to cancel the childcare service
licence; and
(b) the reasons for the intended cancellation; and
(c) that the licensed proprietor may make a submission, in writing, to the
chief executive about the intended cancellation not later than 21 days
after the day the notice is given to the licensed proprietor.
(3) If the chief executive gives an intention to cancel notice to the
licensed proprietor, the chief executive must also take reasonable steps to tell
a person with daily care responsibility for each affected child about the
notice.
Note A parent of a child has daily care responsibility for the child
unless that aspect of parental responsibility has been transferred to someone
else (see s 16 and s 17). Daily care responsibility for a child
may also be shared with someone else (see s 18).
764 Childcare
service licence—cancellation
(1) This section applies if the chief executive gives a licensed
proprietor of a childcare service an intention to cancel notice under
section 763.
(2) If the licensed proprietor makes a submission in accordance with the
intention to cancel notice, the chief executive must consider the
submission.
(3) After considering the submission, the chief executive may consider any
other relevant matter and must decide to either—
(a) cancel the childcare service licence; or
(b) revoke the intention to cancel notice.
Note A decision under par (a) is a
reviewable decision (see s 838).
(4) If the licensed proprietor does not make a submission in accordance
with the notice, the chief executive must decide to cancel the childcare service
licence.
(5) If the chief executive decides to revoke the intention to cancel
notice, the chief executive must tell the following people about the
decision:
(a) the licensed proprietor;
(b) anyone else who was told under section 763 (3) about the
intention to cancel notice.
765 Childcare
service licence—cancellation notice
(1) This section applies if the chief executive decides to cancel a
licensed proprietor’s childcare service licence.
(2) The chief executive must give a written notice (a cancellation
notice) to the licensed proprietor, cancelling the childcare service
licence starting on the date stated in the notice (the cancellation
date).
(3) If the chief executive gives a cancellation notice to the licensed
proprietor, the chief executive must also take reasonable steps to tell a person
with daily care responsibility for each affected child about the
cancellation.
(4) The cancellation notice must be given to the licensed proprietor at
least 7 days before the cancellation date.
766 Offence—fail
to return cancelled childcare service licence
(1) A person commits an offence if—
(a) the person is a licensed proprietor of a childcare service;
and
(b) the chief executive cancels the childcare service licence by giving
the licensed proprietor a cancellation notice; and
(c) the person fails to return the childcare service licence to the chief
executive not later than 7 days after the day the cancellation notice is
given to the person.
Maximum penalty: 5 penalty units.
(2) An offence against this section is a strict liability
offence.
767 Childcare
service licence—identity of childcare workers
protected
If the chief executive is required to tell a person with daily care
responsibility for an affected child about something under this division, the
chief executive must not tell the person information that—
(a) identifies a person as a childcare worker for a childcare service;
or
(b) would allow the identity of a person as a childcare worker for a
childcare service to be worked out.
Division
20.4.4 Childcare service
licences—offences
768 Offence—operate
unlicensed childcare service
A person commits an offence if—
(a) the person is—
(i) a proprietor of a childcare service; or
(ii) a controlling person for a childcare service; and
(b) the proprietor of the childcare service—
(i) operates the childcare service; and
(ii) does not hold a childcare service licence to operate the childcare
service.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
769 Offence—advertise
unlicensed childcare service
(1) A person commits an offence if—
(a) the person is—
(i) a proprietor of a childcare service; or
(ii) a controlling person for a childcare service; and
(b) the person publishes an advertisement for the childcare service;
and
(c) the proprietor of the childcare service does not hold a childcare
service licence to operate the childcare service.
Maximum penalty: 30 penalty units.
(2) This section does not apply if—
(a) a person applies for a childcare service licence to operate a
childcare service; and
(b) the application has not been decided; and
(c) the person publishes an advertisement for the childcare service;
and
(d) the advertisement clearly states that the person does not hold a
licence to operate the service.
(3) In this section:
advertisement—
(a) includes an enrolment form, circular, label, notice and sign;
but
(b) does not include a document published for a feasibility
study.
770 Offence—operate
childcare service when licence suspended
A person commits an offence if—
(a) the person is—
(i) a licensed proprietor of a childcare service; or
(ii) a controlling person for a licensed childcare service; and
(b) the childcare service licence is suspended under—
(i) section 760 (Childcare service licence—suspension for
noncompliance); or
(ii) section 762 (Childcare service licence—suspension if
children unsafe); and
(c) the licensed proprietor operates the childcare service.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
771 Offence—operate
childcare service in contravention of standards
(1) A person commits an offence if—
(a) the person is—
(i) a licensed proprietor of a childcare service; or
(ii) a controlling person for a licensed childcare service; and
(b) the childcare service is operated in a way that does not comply with
the childcare services standards.
Note The Minister may make childcare services standards under
s 886.
Maximum penalty: 50 penalty units.
(2) This section does not apply if—
(a) a temporary standards exemption under section 748 (2) is in force
for the childcare service; and
(b) the exemption exempts the childcare service from the operation of this
section; and
(c) the proprietor of the childcare service operates the childcare service
in accordance with the exemption.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
Division
20.4.5 Childcare service
licences—register, assessment and reporting
772 Childcare
service licence—register
The chief executive must establish a register of childcare service
licences.
773 Assessing
compliance with childcare services standards
(1) At least once during the period of a childcare service licence, the
chief executive must assess the childcare service’s compliance with the
childcare services standards.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises
(see s 816).
(2) The Minister may make childcare services assessment
requirements.
(3) A childcare services assessment requirement is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(4) An assessment must be carried out in accordance with the childcare
services assessment requirements.
(5) The chief executive may ask the licensed proprietor of a childcare
service to give the chief executive any information about the childcare service
reasonably required by the chief executive to carry out the
assessment.
(6) The licensed proprietor must comply with the request as soon as
practicable.
774 Annual
childcare standards report
(1) The chief executive must, for each financial year, prepare a report (a
childcare standards report) about the compliance of licensed
childcare services with the childcare services standards.
(2) A childcare standards report must include—
(a) any temporary standards exemptions under section 748 (2);
and
(b) any compliance notices confirmed or amended under section 759
(4); and
(c) any compliance suspension notices given under section 760;
and
(d) any safety suspension notices given under section 762 (2);
and
(e) any intention to cancel notices or cancellation notices given under
section 764 or section 765; and
(f) any assessments made by the chief executive under section 773
during the financial year to which the report relates; and
(g) if no assessment was made by the chief executive under
section 773 during the financial year to which the report relates for a
childcare service—the date the service was last assessed and the year the
service is to be assessed; and
(h) any submissions that the chief executive is required to include under
section 776 in a childcare standards report; and
(i) if a proprietor, controlling person or childcare worker for a
childcare service was found guilty of, or convicted of an offence against this
chapter—details of the offence.
Note Before including in a childcare
standards report information about a licensed childcare service being operated
in a way that does not comply with a childcare services standard, the chief
executive must consult, and consider submissions by, the licensed proprietor
(see s 776).
(3) A childcare standards report is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
(4) A childcare standards report must comply with the childcare standards
report requirements.
(5) A childcare standards report must not include information
that—
(a) identifies a person as a person who made a confidential report;
or
(b) would allow a person’s identity as a person who made a
confidential report to be worked out; or
(c) identifies a child; or
(d) would allow the identity of a child to be worked out; or
(e) identifies a person as a childcare worker for a childcare service;
or
(f) would allow the identity of a person as a childcare worker for a
childcare service to be worked out.
775 Annual
childcare standards report—requirements
(1) The Minister may make childcare standards report
requirements.
(2) A childcare standards report requirement is a disallowable
instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
776 Annual
childcare standards report—consultation
(1) This section applies if the chief executive proposes to include in a
childcare standards report information about a licensed childcare service being
operated in a way that does not comply with a childcare services
standard.
(2) The chief executive must give the licensed proprietor of the childcare
service a written notice (a childcare standards report notice)
stating—
(a) the chief executive’s proposal; and
(b) that the licensed proprietor may, not later than 30 days after
the day the notice is given to the licensed proprietor, make a submission about
the proposal to the chief executive; and
(c) that if the proprietor makes a written submission in accordance with
the notice, the submission may be included in a childcare standards
report.
(3) A childcare standards report notice must not include information
that—
(a) identifies a person as a person who made a confidential report;
or
(b) would allow a person’s identity as a person who made a
confidential report to be worked out.
(4) Before including in a childcare standards report information about a
childcare service being operated in a way that does not comply with a childcare
services standard, the chief executive must consider any submission made by the
licensed proprietor in accordance with the childcare standards report
notice.
(5) If the chief executive decides to include in a childcare standards
report information about a licensed childcare service being operated in a way
that does not comply with a childcare services standard, the chief executive
must also include in the report a copy of any written submission given to the
chief executive by the licensed proprietor in accordance with a childcare
standard report notice.
Part
20.5 Childcare
services—enforcement
Note to pt 20.5
Other enforcement provisions apply to this chapter (see ch 23).
777 Removal
of child in immediate danger
(1) This section applies if the chief executive is satisfied that there is
an immediate danger to the health or safety of a child being cared for by a
childcare service.
Note An authorised person may, at any reasonable time, enter
premises if a licensed childcare service is operating on the premises or the
chief executive suspects on reasonable grounds that a childcare service is
operating on the premises (see s 816).
(2) The chief executive may—
(a) remove the child from the premises where the childcare service is
operating; and
(b) also remove from the premises anything reasonably required for the
child’s care; and
(c) arrange for the child to be—
(i) returned to the care of a person with daily care responsibility for
the child; or
(ii) temporarily cared for by a licensed childcare service.
Examples—par (b)
1 the child’s nappies
2 the child’s food
3 medication for the child provided by child’s parent
4 contact details of a person with daily care responsibility for the
child
5 information about the child’s medical conditions
Note 1 A parent of a child has daily care responsibility for the
child unless that aspect of parental responsibility has been transferred to
someone else (see s 16 and s 17). Daily care responsibility for
a child may also be shared with someone else (see s 18).
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) If the chief executive arranges for the child to be temporarily cared
for by a licensed childcare service, the chief executive must take all
reasonable steps to tell a person with daily care responsibility for the
child—
(a) that the child is being temporarily cared for by a licensed childcare
service; and
(b) the reason for the temporary care; and
(c) the location of the child.
(4) If the chief executive removes something required for a child’s
care under subsection (2) (b), the chief executive must take all
reasonable steps to ensure that the thing is used for the child’s care and
returned to its owner when no longer needed.
Chapter
21 Employment of children and young
people
Notes to ch 21
In making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration (see s 8).
In making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people (see s 8).
Part
21.1 Important
concepts
778 Chapter
21 subject to Education Act 2004, s 13
This chapter has effect subject to the Education Act 2004,
section 13 (Employment of children under school-leaving age).
Note The Education Act 2004, s 13 makes it an offence
for a person to employ a child or young person under school-leaving age (15
years old), on a day and at a time, when the child or young
person—
(a) is required under the Act to attend a school, school activity or
approved educational course; or
(b) if the child or young person does not live in the ACT or is enrolled
at a school under State law—would be required under this Act to attend a
school, school activity or approved educational course if the child or young
person were living in the ACT or were not enrolled at a school under State
law.
The Education Act 2004, s 14 allows the chief executive to
issue a certificate exempting the child or young person from school
if—
(a) it is necessary or desirable, considering any educational, vocational
training or employment opportunity offered to the child or young person;
or
(b) it is otherwise in the best interests of the child or young person,
considering the care, health, development or education of the child or young
person.
In this chapter:
contrary to the best interests of a child or young
person—see section 781.
educational institution means a school, college or other
educational institution, whether or not operated by or on behalf of the
Territory.
employment—see section 780.
employment conditions notice—see section 789.
employment prohibition notice—see section
787.
work experience means the engagement of a child or young
person who is under school-leaving age by someone if the engagement
is—
(a) arranged by an educational institution where the child or young person
is enrolled; and
(b) part of a work experience program (however described) conducted by the
educational institution.
Note School-leaving age is 15 years old (see
dict).
780 When
does someone employ a child or young person?
(1) In this chapter:
employment means—
(a) performance of work under a contract for services (whether written or
unwritten); or
(b) an apprenticeship, traineeship or other work-related training for a
trade or occupation; or
(c) work experience, other than work experience as part of a work
experience program exempted under section 783.
(2) In deciding whether something is employment of a child
or young person for this chapter, it does not matter whether the child or young
person receives payment (however described) or not.
(3) Taking part in an approved program of compliance testing under the
Tobacco Act 1927, part 6A (Tobacco compliance testing) is not
employment for this chapter.
781 When
is employment contrary to the best interests of a child or young
person?
In this chapter, employment is taken to be contrary to the best
interests of a child or young person if—
(a) for a child or young person who is required to attend school under the
Education Act 2004—it contravenes that Act, section 13 in
relation to the child or young person; or
(b) for a child or young person engaged in education or training—it
is likely to prejudice the ability of the child or young person to benefit from
the education or training; or
(c) it is otherwise likely to harm the child’s or young
person’s health, safety, personal or social development (including by
sexual or financial exploitation).
Part
21.2 Work experience
programs—exemption
782 Work
experience program—exemption from ch 21
(1) An educational institution may apply for an exemption from the
operation of this chapter for a work experience program conducted by the
educational institution.
(2) The application must—
(a) be made in writing to the chief executive; and
(b) include complete details of how the work experience program complies
with the work experience standards.
Note 1 The Minister may make work experience standards under
s 886.
Note 2 If a form is approved under s 885 for this provision,
the form must be used.
Note 3 A fee may be determined under s 884 for this
provision.
783 Work
experience program—decision on application
(1) This section applies if the chief executive has received an
application from an educational institution for an exemption under
section 782.
(2) The chief executive may exempt the educational institution in relation
to a work experience program only if the chief executive believes on reasonable
grounds that the work experience program complies with, and will continue to
comply with, the work experience standards.
(3) The exemption may be subject to conditions.
(4) The chief executive need not decide the application if the application
does not contain sufficient information to allow the chief executive to decide
it.
784 Work
experience program exemption—further information
(1) This section applies if the chief executive has—
(a) received an application from an educational institution for an
exemption under section 782; or
(b) exempted an educational institution from the operation of this chapter
in relation to a work experience program under section 783.
(2) The chief executive may, at any time, ask the educational institution
to give the chief executive further information about—
(a) the application; or
(b) the work experience program.
(3) The educational institution must comply with a request as soon as
practicable.
785 Suspension
of work experience program exemption
(1) The chief executive may suspend an educational institution’s
exemption under section 783 if the chief executive suspects on reasonable
grounds that the educational institution has not complied with, or continued to
comply with, the work experience standards.
(2) The chief executive may suspend the exemption by—
(a) giving the educational institution written notice of the suspension,
including the chief executive’s reasons for suspending the exemption;
and
(b) telling the educational institution that it may make a submission, in
writing, to the chief executive about the suspension not later than 14 days
after the day the notice is given to the educational institution.
(3) A suspension takes effect immediately.
(4) After the end of 14 days after the chief executive gives notice of the
suspension, the chief executive must—
(a) consider any submission made by the entity; and
(b) either—
(i) revoke the suspension; or
(ii) give the entity notice of the chief executive’s intention to
revoke the authorisation under section 786.
786 Revocation
of educational institution’s exemption
(1) The chief executive may revoke an educational institution’s
exemption under section 783 if satisfied that the educational institution has
not complied with, or continued to comply with, the work experience
standards.
(2) Before revoking an exemption under subsection (1), the chief executive
must—
(a) give the educational institution written notice of the chief
executive’s intention to revoke the exemption, including the chief
executive’s reasons; and
(b) tell the educational institution that it may make a submission, in
writing, to the chief executive about the notice not later than 14 days
after the day the notice is given to the educational institution; and
(c) if the educational institution makes a submission—consider the
submission.
(3) This section is in addition to the Legislation Act, section 180
(Power to make decision includes power to reverse or change).
Note 1 Under the Legislation Act, s 180, power given by a law
to make a decision includes power to reverse or change the decision. The power
to reverse or change the decision is exercisable in the same way, and subject to
the same conditions, as the power to make the decision.
Note 2 A decision under this section is a reviewable decision
(see s 838).
Part
21.3 Employment of children and young
people
Note to pt 21.3
Occupational health and safety matters are dealt with in the
Occupational Health and Safety Act 1989.
787 Chief
executive may prohibit employment
The chief executive may, by written notice given to an employer
(an employment prohibition notice), prohibit the employer
from employing, or continuing to employ, a child or young person named in the
notice if the chief executive believes on reasonable grounds that the employment
is, or is likely to be, contrary to the best interests of the child or young
person.
788 Offence—contravene
employment prohibition notice
An employer commits an offence if—
(a) the chief executive gives the employer an employment prohibition
notice under section 787; and
(b) the employer engages in conduct that contravenes the employment
prohibition notice.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
789 Chief
executive may state conditions of employment
The chief executive may, by written notice given to an employer
(an employment conditions notice), state conditions in
relation to the employment of a child or young person named in the notice, that
must be complied with to ensure the employment is not contrary to the best
interests of the child or young person.
Examples—conditions
1 conditions about adequate direct supervision of the young
person
2 conditions about appropriate induction and training
3 conditions about supply and use of suitable protective clothing
4 conditions about workplace premises including compliance with any
registration or licensing requirement
5 conditions about availability of grief or trauma counselling at the
workplace
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
790 Offence—contravene
employment conditions notice
An employer commits an offence if—
(a) the chief executive gives the employer an employment conditions notice
under section 789; and
(b) the employer engages in conduct that contravenes the employment
conditions notice.
Maximum penalty: 50 penalty units.
791 Children
and young people employment standards
An employer of a child or young person must comply with the children and
young people employment standards in relation to the employment.
Note The Minister may make children and young people standards under
s 886.
Part
21.4 Employment of children and young
people under school-leaving age
Notes to pt 21.4
Occupational health and safety matters are dealt with in the
Occupational Health and Safety Act 1989.
School-leaving age is 15 years old (see dict).
(1) In this part:
light work means work that is not contrary to the best
interests of a child or young person.
Examples—work that may be light
work
1 babysitting
2 going on errands
3 casual work in or around a private home
4 golf-caddying
5 clerical work
6 gardening
7 selling, delivering or distributing newspapers or
advertisements
8 entertaining at a place used for providing entertainment or
amusement
9 entertaining at a place used for sporting activities
10 singing, dancing, playing a musical instrument or similar work
11 performing in a radio, television or film program or production, or a
similar program or production, other than a news item
12 modelling
13 acting as a photographic subject, whether still or moving
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) To remove any doubt, an example to the definition of light
work is not light work to the extent that it is contrary to the best
interests of a child or young person.
Example
acting as a photographic subject if the nature and environment of the
workplace makes it contrary to the best interests of a child or young
person
793 What
is high risk employment?
In this part:
high risk employment means employment declared to be high
risk employment under section 797 (1).
794 Offence—employment
of children and young people under school-leaving age
(1) A person commits an offence if—
(a) the person employs a child or young person; and
(b) the child or young person is under school-leaving age.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
Note Employment as part of an exempted work experience program is
not employment for this chapter (see s 780 (1), def employment,
par (c)).
(2) This section is subject to the following sections:
(a) section 795 (which is about light work);
(b) section 796 (which is about family businesses).
795 Exception
to s 794—employment in light work
(1) Section 794 (1) does not apply to the employment of a child or
young person if—
(a) the employment is in light work; and
(b) the child or young person is employed for 10 hours per week or
less.
(2) Section 794 (1) does not apply to the employment of a child or
young person in light work for more than 10 hours per week if—
(a) the employment is in light work; and
(b) the proposed employer has, at least 7 days before the day the
employment starts, told the chief executive in writing about the
employment.
Note If a form is approved under s 885 for this provision, the
form must be used.
796 Exception
to s 794—employment in family business
Section 794 (1) does not apply to the employment of a child or young
person if—
(a) the employer is—
(i) a parent of the child or young person; or
(ii) a company of which a parent of the child or young person is a
director; or
(iii) a partnership of which a parent of the child or young person is a
partner; and
(b) the employment is light work.
797 Declaration
of high risk employment
(1) The Minister may declare employment in an industry, occupation or
activity to be high risk employment if satisfied that it is likely to harm a
child’s or young person’s health, safety, personal or social
development (including by sexual or financial exploitation).
(2) A declaration is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
798 High
risk employment—employer may apply for permit
(1) An employer may apply for a permit to employ a child or young person
who is under school-leaving age in high risk employment (a high risk
employment permit).
(2) The application must—
(a) be made in writing to the chief executive; and
(b) include complete details of—
(i) the activities that the child or young person will be expected to
perform during the proposed employment; and
(ii) the period of proposed employment; and
(iii) how the employer proposes to protect the young person’s
health, safety, personal or social development during the employment;
and
(c) be accompanied by written consent to the proposed employment of a
person with daily care responsibility for the young person.
Note 1 Giving false or misleading information is an offence against
the Criminal Code, s 338.
Note 2 If a form is approved under s 885 for this provision,
the form must be used.
Note 3 A fee may be determined under s 884 for this
provision.
799 High
risk employment permit—decision on application
(1) This section applies if the chief executive has received an
application for a high risk employment permit.
(2) The chief executive may issue the permit only if the chief executive
believes on reasonable grounds that the proposed employment is not likely to
harm the child’s or young person’s health, safety, personal or
social development (including by sexual or financial exploitation).
(3) The permit may be subject to conditions about the child’s or
young person’s health and safety.
Examples—conditions
1 conditions about adequate direct supervision of the young
person
2 conditions about appropriate induction and training
3 conditions about supply and use of suitable protective clothing
4 conditions about workplace premises including compliance with any
registration or licensing requirement
5 conditions about availability of grief or trauma counselling at the
workplace
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(4) The employer must give a copy of the permit to the person with daily
care responsibility who gave consent for section 798 (2) (c) when the
application for the permit was made.
(5) The chief executive need not decide the application if the application
does not contain sufficient information to allow the chief executive to decide
it.
800 High
risk employment permit—further information
(1) This section applies if the chief executive has received an
application from an employer for a high risk employment permit under
section 798 or has issued a high risk employment permit to an employer
under section 799.
(2) The chief executive may, at any time, ask the employer to give the
chief executive further information about—
(a) the application; or
(b) the employment of the child or young person.
(3) The employer must comply with a request as soon as
practicable.
801 High
risk employment permit—content
A high risk employment permit must state—
(a) the name of the employer who is to employ the child or young person;
and
(b) the name of the child or young person who is to be employed;
and
(c) the location of the premises where the employment is to be undertaken;
and
(d) the length of the permit; and
(e) any conditions to which the permit is subject.
802 Offence—employment
of child or young person under school-leaving age in high risk
employment
(1) A person commits an offence if—
(a) the person employs a child or young person; and
(b) the employment is in high risk employment; and
(c) the child or young person is under school-leaving age.
Maximum penalty: 200 penalty units, imprisonment for 2 years or
both.
(2) This section does not apply to the employment of a child or young
person if the chief executive has issued a high risk employment permit in
relation to the employment of the child or young person.
803 Offence—contravene
condition of permit
A person commits an offence if—
(a) the chief executive has issued a high risk employment permit under
section 799; and
(b) the permit is conditional; and
(c) the person engages in conduct that contravenes a condition of the
permit.
Maximum penalty: 100 penalty units, imprisonment for 1 year or
both.
Chapter
22 Research involving children and
young people
In this chapter:
approved research project means a research project approved
under section 806 (1).
ethics committee means a committee approved under
section 809 as an ethics committee.
researcher, for a research project, means the person or
entity carrying out, or proposing to carry out, the research project.
research project—see section 805.
805 What
is a research project?
(1) In this chapter:
research project means a research project by an entity (the
researcher) that involves—
(a) the chief executive giving the researcher protected information
(including sensitive information) about a child or young person; or
Note 1 The chief executive may give
protected information to a researcher for an approved project (see s
854).
Note 2 Protected information is
defined in s 843. Sensitive information is defined in
s 844.
(b) the researcher recruiting a person through the chief executive to take
part in the project if—
(i) the person is a child or young person who is the subject of a
proceeding under this Act; or
(ii) the person is a child or young person for whom a care and protection
order is in force; or
(iii) the person is a child or young person who is the subject of a child
concern report; or
(iv) the person is a child or young person for whom the chief executive
has parental responsibility; or
(v) the person is a young detainee; or
(c) the researcher recruiting a person who exercises a function under this
Act; or
(d) the researcher conducting the research project at a place of care, a
place of detention or a place of therapeutic protection.
(2) However, a research project does not
include—
(a) the chief executive giving the researcher protected information
(including sensitive information) about a child or young person in a form that
does not identify an individual or allow an individual’s identity to be
worked out (including a person who made a child concern report); or
(b) an activity conducted by the chief executive that would reasonably be
considered to be a quality assurance exercise or an audit.
806 Approval
of research projects—generally
(1) The chief executive may approve a research project.
(2) However, the chief executive may approve a research project only
if—
(a) the chief executive is satisfied the project complies with or is
likely to comply with the research standards; and
(b) if the project involves a child or young person taking part in the
project—the chief executive has approved the project under
section 808.
(3) In deciding whether to approve a research project, the chief executive
may have regard to a recommendation made by an ethics committee approved by the
Minister under section 809.
807 Research
standards—certain matters to be covered
(1) If a child or young person is to take part in a research project, the
research standards must—
(a) ensure that the safety and wellbeing of the child or young person is
paramount; and
(b) appropriately protect the child’s or young person’s
health, safety and personal and social development; and
(c) allow the child or young person to stop taking part in the project at
any time; and
(d) ensure that the child’s or young person’s identity as a
participant in the project is protected; and
(e) comply with anything else prescribed by regulation.
Note The Minister may make research standards under
s 886.
(2) If the chief executive is to give a researcher protected information
about a child or young person for a research project, the research standards
must ensure that the secrecy of the information is protected.
808 Approval
of research projects—child or young person to take
part
(1) This section applies if the chief executive is deciding whether to
approve a research project that involves a child or young person taking part in
the project.
(2) The chief executive may approve the research project only if satisfied
that—
(a) the researcher is a suitable entity to have contact with children or
young people in the way proposed in the project; and
Note Suitable entities to provide
services are dealt with in pt 2.4.
(b) any other person who is to have contact with children or young people
for the project is a suitable entity to have contact with children or young
people in the way proposed in the project.
(3) If the chief executive approves a research project that involves a
child or young person, the researcher must—
(a) seek the written consent, for the child or young person to take part
in the research project, of—
(i) the child or young person (if the child or young person has sufficient
developmental capacity to give consent); or
(ii) a person with daily care responsibility for the child or young
person; and
(b) tell the child or young person that—
(i) he or she can refuse consent; and
(ii) if consent is given, he or she can stop taking part in the project at
any time.
809 Approval
of ethics committees
(1) The Minister may approve a stated committee as an ethics committee for
this chapter.
(2) An approval is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
810 Offence—researcher
contravene approved standards
A person commits an offence if the person—
(a) is a researcher for an approved research project; and
(b) carries out the approved research project in a way that does not
comply with the research standards.
Maximum penalty: 50 penalty units.
Notes to ch 23
In making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration (see s 8).
In making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people (see s 8).
The decision-maker must, where practicable and appropriate, have suitable
qualifications, experience or skills to make decisions in relation to children
and young people (see s 9).
In this chapter:
authorised person—see section 26.
Note If the chief executive delegates the functions under this
chapter the delegate is an authorised person and must be given an identity card
(see s 26).
connected—a thing is connected with an offence
if—
(a) the offence has been committed in relation to it; or
(b) it will provide evidence of the commission of the offence;
or
(c) it was used, is being used, or is intended to be used to commit the
offence.
occupier, of premises, includes—
(a) a person believed on reasonable grounds to be an occupier of the
premises; and
(b) a person apparently in charge of the premises.
offence includes an offence that there are reasonable grounds
for believing has been, is being, or will be, committed.
Part
23.2 Powers of authorised
people
812 Power
to enter premises—general
(1) For this Act, an authorised person may—
(a) at any reasonable time, enter premises that the public is entitled to
use or that are open to the public (whether or not on payment of money);
or
(b) at any time, enter premises with the occupier’s consent;
or
(c) enter premises in accordance with a search warrant.
(2) The authorised person may, without the consent of the occupier of
premises, enter land around the premises to ask for consent to enter the
premises.
(3) To remove any doubt, the authorised person may enter premises under
subsection (1) without payment of an entry fee or other charge.
(4) However, subsection (1) does not authorise entry into a part of
premises that is being used only for residential purposes.
(5) In this section:
at any reasonable time includes at any time when the public
is entitled to use the premises, or when the premises are open to or used by the
public (whether or not on payment of money).
813 Power
to enter premises—Chapter 13 (Care and protection and therapeutic
protection—emergency situations)
(1) For this Act, an authorised person or police officer may, at any time,
enter premises if—
(a) the authorised person or police officer believes on reasonable grounds
that a child or young person at the premises is in need of emergency care and
protection or emergency therapeutic protection; and
Note 1 In need of emergency care and
protection is defined in s 402.
Note 2 In need of emergency therapeutic
protection is defined in s 403.
(b) the purpose of the entry is for the authorised person or police
officer to take emergency action for the child or young person under
section 405.
Note Emergency action is defined
in s 404.
(2) The authorised person or police officer may use reasonable and
necessary force to enter the premises to safeguard the wellbeing of the child or
young person.
(3) This section is additional to section 812.
814 Power
to enter premises—ch 15 (Care and Protection—chief executive has
aspect of parental responsibility)
(1) For this Act, an authorised person may, at any reasonable time, enter
premises where a child or young person is living if—
(a) the chief executive has placed the child or young person with an
out-of-home carer under section 511; and
(b) the purpose of the entry is to ensure that the child or young person
is being properly cared for.
(2) For this Act, an authorised person may also, at any reasonable time,
enter a place operated by a residential care service if—
(a) the Minister—
(i) is deciding whether to approve the place as a place of care under
section 524; and
(ii) has asked the residential care service to allow the chief executive
to inspect the place; and
(b) the residential care service has agreed to allow the chief executive
to inspect the place.
Note If the residential care service
does not allow the chief executive to inspect the place, the Minister need not
decide whether to approve the place as a place of care
(see s 524).
(3) This section is additional to section 812.
(4) In this section:
at any reasonable time includes at any time during normal
business hours.
Note An official visitor also inspects places of care and handles
complaints made by children and young people who are placed with a residential
care service and accommodated at a place of care (see pt 2.3).
815 Power
to enter premises—ch 16 (Care and protection—therapeutic protection
of children and young people)
(1) For this Act, an authorised person may, at any reasonable time, enter
a therapeutic protection place for which the operating entity is not the chief
executive.
(2) For this Act, an authorised person may also, at any reasonable time,
enter any place for which the operating entity is not the chief executive
if—
(a) the Minister—
(i) is deciding whether to declare the place as a therapeutic protection
place under section 624; and
(ii) has asked the operating entity to allow the chief executive to
inspect the place; and
(b) the operating entity for the place has agreed to allow the chief
executive to inspect the place.
(3) However, subsection (1) authorises entry into a part of premises used
for residential purposes only if the part of the premises is used to operate the
therapeutic protection place.
(4) This section is additional to section 812.
(5) In this section:
at any reasonable time includes at any time during normal
business hours.
operating entity, for a place, means the entity that operates
the place.
816 Power
to enter premises—ch 20 (Childcare services)
(1) For this Act, an authorised person may, at any reasonable time, enter
premises if—
(a) the chief executive has—
(i) received an application for a childcare service licence under
section 742 and has asked the proposed proprietor to allow the chief
executive to inspect the premises where the proposed proprietor proposes to
operate the childcare service under section 743; or
(ii) received an application for renewal of a childcare service licence
under section 753 and has asked the proposed proprietor to allow the chief
executive to inspect the premises where the proposed proprietor proposes to
operate the childcare service under section 754; and
(b) the proposed proprietor has agreed to allow the chief executive to
inspect the premises.
Note If the proposed proprietor does not
allow the chief executive to inspect the premises, the chief executive need not
decide whether the proposed proprietor is eligible for the childcare service
licence or for renewal of the licence
(see s 744
and s 755).
(2) For this Act, an authorised person may also—
(a) at any reasonable time, enter premises if a licensed childcare service
is operating on the premises; or
(b) at any time, enter premises with the occupier’s
consent.
(3) However, this section authorises entry into a part of premises used
for residential purposes only if the part of the premises is used to operate the
childcare service.
(4) This section is additional to section 812.
(5) In this section:
at any reasonable time includes at any time during normal
business hours.
817 Production
of identity card
An authorised person must not remain at premises entered under this chapter
if the authorised person does not produce his or her identity card when asked by
the occupier.
(1) When seeking the consent of an occupier of premises to enter premises
under section 812 (1) (b), an authorised person
must—
(a) produce his or her identity card; and
(b) tell the occupier—
(i) the purpose of the entry; and
(ii) that anything found and seized under this chapter may be used in
evidence in court; and
(iii) that consent may be refused.
(2) If the occupier consents, the authorised person must ask the occupier
to sign a written acknowledgment (an acknowledgement of
consent)—
(a) that the occupier was told—
(i) the purpose of the entry; and
(ii) that anything found and seized under this chapter may be used in
evidence in court; and
(iii) that consent may be refused; and
(b) that the occupier consented to the entry; and
(c) stating the time and date when consent was given.
(3) If the occupier signs an acknowledgment of consent, the authorised
person must immediately give a copy to the occupier.
(4) A court must find that the occupier did not consent to entry to the
premises by the authorised person under this chapter if—
(a) the question arises in a proceeding in the court whether the occupier
consented to the entry; and
(b) an acknowledgment of consent is not produced in evidence;
and
(c) it is not proved that the occupier consented to the entry.
819 General
powers on entry to premises
(1) An authorised person who enters premises under this chapter may, for
this Act, do 1 or more of the following in relation to the premises or anything
on the premises:
(a) inspect or examine;
(b) take measurements or conduct tests;
(c) take samples;
(d) take photographs, films, or audio, video or other
recordings;
(e) make copies of, or take extracts from, a document kept at the
premises;
(f) require the occupier, or anyone at the premises, to give the
authorised person records, or copies of records that the person has or has
access to that are reasonably required by the authorised person for this
Act;
(g) require the occupier, or an employee or agent of the occupier, to give
the authorised person any other assistance to exercise a power under this
chapter.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against self incrimination and client legal
privilege.
(2) A person must take all reasonable steps to comply with a requirement
made of the person under subsection (1) (f) or (g).
Maximum penalty: 50 penalty units.
820 Duty
to give information or documents
(1) An authorised person may, by written notice given to a person, require
the person to give to the authorised person the stated information or document
required for this Act.
(2) The information or document must be given to the authorised person
within the period stated in the notice or, if an authorised person allows a
longer period, the longer period.
(3) The period stated in the notice must be not less than 14 days after
the day the notice is given to the person.
(4) A person commits an offence if—
(a) the person is required to give information or a document to an
authorised person under subsection (1); and
(b) the person does not take all reasonable steps to comply with the
requirement within the period applying under subsection (2).
Maximum penalty: 50 penalty units.
Note The Legislation Act, s 170 and s 171 deal with the application
of the privilege against self incrimination and client legal
privilege.
821 Power
to require name and address
(1) An authorised person may require a person to state the person’s
name and home address if the authorised person believes on reasonable grounds
that the person is committing or has just committed an offence against this
Act.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
(2) The authorised person must tell the person the reason for the
requirement and, as soon as practicable, record the reason.
(3) The authorised person must also produce his or her identity card for
inspection by the person.
(4) A person must comply with a requirement made of the person under
subsection (1) if the authorised person—
(a) told the person the reason for the requirement; and
(b) produced his or her identity card for inspection by the
person.
Maximum penalty: 10 penalty units.
(5) An offence against this section is a strict liability
offence.
(6) In this section:
home address, of a person, means the address of the place
where the person usually lives.
822 Power
to seize things
(1) An authorised person who enters premises under this chapter with the
occupier’s consent may seize anything at the premises if—
(a) satisfied on reasonable grounds that the thing is connected with an
offence against this Act; and
(b) seizure of the thing is consistent with the purpose of the entry told
to the occupier when seeking the occupier’s consent.
(2) An authorised person who enters premises under a warrant under this
chapter may seize anything at the premises that the authorised person is
authorised to seize under the warrant.
(3) An authorised person who enters premises under this chapter (whether
with the occupier’s consent, under a warrant or otherwise) may seize
anything at the premises if satisfied on reasonable grounds
that—
(a) the thing is connected with an offence against this Act; and
(b) the seizure is necessary to prevent the thing from
being—
(i) concealed, lost or destroyed; or
(ii) used to commit, continue or repeat the offence.
(4) Having seized a thing, an authorised person may—
(a) remove the thing from the premises where it was seized (the
place of seizure) to another place; or
(b) leave the thing at the place of seizure but restrict access to
it.
(5) A person commits an offence if—
(a) the person interferes with a seized thing, or anything containing a
seized thing, to which access has been restricted under subsection (4);
and
(b) the person knows access to the seized thing has been restricted;
and
(c) the person does not have an authorised person’s approval to
interfere with the thing.
Maximum penalty: 50 penalty units.
(6) Strict liability applies to subsection (5) (a).
Part
23.3 Search
warrants
(1) An authorised person may apply to a magistrate for a warrant to enter
premises.
(2) The application must be sworn and state the grounds on which the
warrant is sought.
(3) The magistrate may refuse to consider the application until the
authorised person gives the magistrate all the information the magistrate
requires about the application in the way the magistrate requires.
(4) The magistrate may issue a warrant only if satisfied there are
reasonable grounds for suspecting—
(a) there is a particular thing or activity connected with an offence
against this Act; and
(b) the thing or activity—
(i) is, or is being engaged in, at the premises; or
(ii) may be, or may be engaged in, at the premises within the next 14
days.
(5) The warrant must state—
(a) that an authorised person may, with any necessary assistance and
force, enter stated premises and exercise the authorised person’s powers
under this chapter; and
(b) the offence for which the warrant is issued; and
(c) the things that may be seized under the warrant; and
(d) the hours when the premises may be entered; and
(e) the date, within 14 days after the day of the warrant’s issue,
the warrant ends.
824 Warrants—application
made other than in person
(1) An authorised person may apply for a warrant by phone, fax, radio or
other form of communication if the authorised person considers it necessary
because of urgent circumstances.
(2) Before applying for the warrant, the authorised person must prepare an
application stating the grounds on which the warrant is sought.
(3) The authorised person may apply for the warrant before the application
is sworn.
(4) After issuing the warrant, the magistrate must immediately fax a copy
to the authorised person if it is practicable to do so.
(5) If it is not practicable to fax a copy to the authorised
person—
(a) the magistrate must tell the authorised person—
(i) the terms of the warrant; and
(ii) the date and time the warrant was issued; and
(b) the authorised person must complete a form of warrant (the
warrant form) and write on it—
(i) the magistrate’s name; and
(ii) the date and time the magistrate issued the warrant; and
(iii) the warrant’s terms.
(6) The faxed copy of the warrant, or the warrant form properly completed
by the authorised person, authorises the entry and the exercise of the
authorised person’s powers under this chapter.
(7) The authorised person must, at the first reasonable opportunity, send
to the magistrate—
(a) the sworn application; and
(b) if the authorised person completed a warrant form—the completed
warrant form.
(8) On receiving the documents, the magistrate must attach them to the
warrant.
(9) A court must find that a power exercised by the authorised person was
not authorised by a warrant under this section if—
(a) the question arises in a proceeding in the court whether the exercise
of power was authorised by a warrant; and
(b) the warrant is not produced in evidence; and
(c) it is not proved that the exercise of power was authorised by a
warrant under this section.
825 Search
warrants—announcement before entry
(1) An authorised person must, before anyone enters premises under a
search warrant—
(a) announce that the authorised person is authorised to enter the
premises; and
(b) give anyone at the premises an opportunity to allow entry to the
premises; and
(c) if the occupier of the premises, or someone else who apparently
represents the occupier, is present at the premises—identify himself or
herself to the person.
(2) The authorised person is not required to comply with
subsection (1) if the authorised person believes on reasonable grounds that
immediate entry to the premises is required to ensure—
(a) the safety of anyone (including the authorised person or a person
assisting); or
(b) that the effective execution of the warrant is not
frustrated.
826 Details
of search warrant to be given to occupier etc
If the occupier of premises, or someone else who apparently represents the
occupier, is present at the premises while a search warrant is being executed,
the authorised person or a person assisting must make available to the
person—
(a) a copy of the warrant; and
(b) a document setting out the rights and obligations of the
person.
827 Occupier
entitled to be present during search etc
(1) If the occupier of premises, or someone else who apparently represents
the occupier, is present at the premises while a search warrant is being
executed, the person is entitled to observe the search being
conducted.
(2) However, the person is not entitled to observe the search
if—
(a) to do so would impede the search; or
(b) the person is under arrest, and allowing the person to observe the
search being conducted would interfere with the objectives of the
search.
(3) This section does not prevent 2 or more areas of the premises being
searched at the same time.
Part
23.4 Return and forfeiture of things
seized
828 Receipt
for things seized
(1) As soon as practicable after an authorised person seizes a thing under
this chapter, the authorised person must give a receipt for it to the person
from whom it was seized.
(2) If, for any reason, it is not practicable to comply with
subsection (1), the authorised person must leave the receipt, secured
conspicuously, at the place of seizure under section 822 (Power to seize
things).
(3) A receipt under this section must include the following:
(a) a description of the thing seized;
(b) an explanation of why the thing was seized;
(c) the authorised person’s name, and how to contact the authorised
person;
(d) if the thing is moved from the premises where it is seized—where
the thing is to be taken;
(e) if an authorised person has restricted access to the thing under
section 822 (4) (b)—it is an offence under section
822 (5) to interfere with the thing without an authorised person’s
approval.
829 Moving
things to another place for examination or processing under search
warrant
(1) A thing found at premises entered under a search warrant may be moved
to another place for examination or processing to decide whether it may be
seized under the warrant if—
(a) both of the following apply:
(i) there are reasonable grounds for believing that the thing is or
contains something to which the warrant relates;
(ii) it is significantly more practicable to do so having regard to the
timeliness and cost of examining or processing the thing at another place and
the availability of expert assistance; or
(b) the occupier of the premises agrees in writing.
(2) The thing may be moved to another place for examination or processing
for not longer than 72 hours.
(3) An authorised person may apply to a magistrate for an extension of
time if the authorised person believes on reasonable grounds that the thing
cannot be examined or processed within 72 hours.
(4) The authorised person must give the occupier of the premises notice of
the application, and the occupier is entitled to be heard on the
application.
(5) If a thing is moved to another place under this section, the
authorised person must, if practicable—
(a) tell the occupier of the premises the address of the place where, and
time when, the examination or processing will be carried out; and
(b) allow the occupier or the occupier’s representative to be
present during the examination or processing.
(6) The provisions of this chapter relating to the issue of search
warrants apply, with any necessary changes, to the giving of an extension under
this section.
830 Access
to things seized
A person who would, apart from the seizure, be entitled to inspect a thing
seized under this chapter may—
(a) inspect it; and
(b) if it is a document—take extracts from it or make copies of
it.
831 Return
of things seized
(1) A thing seized under this chapter must be returned to its owner, or
reasonable compensation must be paid by the Territory to the owner for the loss
of the thing, if—
(a) a prosecution for an offence relating to the thing is not started
within 90 days after the day of the seizure; or
(b) a prosecution for an offence relating to the thing is started within
90 days after the day of the seizure but the court does not find the
offence proved.
(2) If anything seized under this chapter is not required to be returned
or reasonable compensation is not required to be paid under subsection (1),
the thing—
(a) is forfeited to the Territory; and
(b) may be sold, destroyed or otherwise disposed of as the chief executive
directs.
832 Damage
etc to be minimised
(1) In the exercise, or purported exercise, of a function under this
chapter, an authorised person must take all reasonable steps to ensure that the
authorised person, and any person assisting the authorised person, causes as
little inconvenience, detriment and damage as practicable.
(2) If an authorised person, or a person assisting an authorised person,
damages anything in the exercise or purported exercise of a function under this
chapter, the authorised person must give written notice of the particulars of
the damage to the person the authorised person believes on reasonable grounds is
the owner of the thing.
(3) If the damage happens at premises entered under this chapter in the
absence of the occupier, the notice may be given by leaving it, secured
conspicuously, at the premises.
833 Compensation
for exercise of enforcement powers
(1) A person may claim compensation from the Territory if the person
suffers loss or expense because of the exercise, or purported exercise, of a
function under this chapter by an authorised person or a person assisting an
authorised person.
(2) Compensation may be claimed and ordered in a proceeding
for—
(a) compensation brought in a court of competent jurisdiction;
or
(b) an offence against this Act brought against the person making the
claim for compensation.
(3) A court may order the payment of reasonable compensation for the loss
or expense only if satisfied it is just to make the order in the circumstances
of the particular case.
Chapter
24 Appeals and
review
Notes to ch 24
In making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration (see s 8).
In making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people (see s 8).
Division
24.1.1 Appeals
generally
834 Appeals
to Supreme Court—generally
(1) A person must not appeal to the Supreme Court in relation to a matter
arising under this Act except—
(a) in accordance with section 835; or
(b) for a DVPO protection order made by the Childrens Court for a child or
young person in need of care and protection on an application for a care and
protection order—in accordance with the Domestic Violence and
Protection Orders Act 2001.
(2) This chapter does not limit the Magistrates Court Act 1930,
part 3.10 (Criminal appeals) or another Territory law that makes provision
about the appellate jurisdiction of the Supreme Court.
Division
24.1.2 Appeals—Care and
protection chapters
835 Appeals
to Supreme Court—care and protection chapters
(1) An appeal from any of the following decisions of the Childrens Court
under the care and protection chapters may be made to the Supreme
Court:
(a) the making of an order or other decision;
(b) a refusal to make an order or other decision applied for;
(c) to extend an order or other decision;
(d) a refusal to extend an order or other decision;
(e) to amend an order or other decision;
(f) a refusal to amend an order or other decision;
(g) to revoke an order or other decision;
(h) a refusal to revoke an order or other decision.
(2) The following people may appeal under this section:
(a) a party to the proceeding in which the decision was made;
(b) a person named in the order or other decision;
(c) anyone else with the leave of the Supreme Court.
836 Application
of Magistrates Court Act
The Magistrates Court Act 1930, part 4.5 (Civil appeals) applies in
relation to an appeal mentioned in section 835 of this Act as
if—
(a) it were an appeal from a judgment or order mentioned in the
Magistrates Court Act 1930, section 274 (2); and
(b) all other necessary changes, and any changes prescribed by regulation,
were made.
837 Orders
that Supreme Court may make
On an appeal mentioned in section 835, the Supreme Court must not make
an order or other decision that is not an order or other decision that could
have been made by the Childrens Court in the proceeding appealed from.
Division
24.1.3 AAT review
838 Review
of decisions—ch 15, ch 20 and ch 21
(1) A decision mentioned in column 2 in a table in this division is a
reviewable decision.
(2) If the chief executive makes a reviewable decision in an item of a
table, the chief executive must give written notice of the decision to each
person mentioned in the table, column 3 for the item.
(3) The notice must be in accordance with the requirements of the code of
practice in force under the Administrative Appeals Tribunal
Act 1989, section 25B (1).
(4) A person mentioned in the table, column 4 for an item may apply
to the AAT for review of the reviewable decision mentioned in the
item.
Table 838.1 Review of decisions—ch 15
(Care and protection—chief executive has aspect of parental
responsibility)
column 1
item
|
column 2
reviewable decision
|
column 3
who must be told about
decision
|
column 4
who may apply for
review
|
1
|
section 515, to refuse to authorise person as kinship carer
|
the person
|
the person
|
2
|
section 516, to refuse to authorise entity as foster care service
|
the entity
|
the entity
|
3
|
section 517 or section 518 to refuse to authorise person as foster
carer
|
the person
|
the person
|
4
|
section 519, to refuse to authorise entity as residential care
service
|
the person
|
the person
|
5
|
section 521 (4), or section 522 (4), to revoke authorisation of a
person as foster carer
|
the person
|
the person
|
6
|
section 523 (1), to revoke authorisation of entity as a
residential care service
|
the entity
|
the entity
|
7
|
section 524 (1), to refuse to approve place operated by residential
care service as place of care
|
the residential care service
|
the residential care service
|
8
|
section 524 (4), to revoke approval of place operated by residential
care service as place of care
|
the residential care service
|
the residential care service
|
Table 838.2 Review of decisions—ch 20
(Childcare services)
column 1
item
|
column 2
reviewable decision
|
column 3
who must be told about
decision
|
column 4
who may apply for
review
|
1
|
section 746 (3) to refuse to give proprietor childcare service
licence
|
proprietor
|
proprietor
|
2
|
section 750 (4) to refuse to extend childcare service
licence
|
licensed proprietor
|
licensed proprietor
|
3
|
section 751 (3) to refuse to amend a childcare service licence
|
licensed proprietor
|
licensed proprietor
|
4
|
section 752 (3) to refuse to transfer a childcare service
licence
|
licensed proprietor
|
licensed proprietor
|
5
|
section 757 (3) to refuse to renew childcare service
licence
|
licensed proprietor
|
licensed proprietor
|
6
|
section 759 (4) (a) to confirm compliance notice
|
licensed proprietor
|
licensed proprietor
|
7
|
section 760 (2) to suspend childcare service licence
|
licensed proprietor
|
licensed proprietor
|
8
|
section 761 (3) (a) to confirm suspension of childcare
service licence
|
licensed proprietor
|
licensed proprietor
|
9
|
section 762 (2) to suspend childcare service licence
|
licensed proprietor
|
licensed proprietor
|
10
|
section 764 (3) to cancel childcare service licence
|
proprietor
|
proprietor
|
839 Decision
to refuse to give childcare service licence must not be stayed or otherwise
affected pending outcome of review
(1) The Administrative Appeals Tribunal Act 1989, section 39A
(2) does not apply to a decision under section 746 (3) (Childcare service
licence—decision on application) to refuse to give a childcare service
licence.
(2) The Supreme Court must not make an order or other decision under the
Administrative Decisions (Judicial Review) Act 1989, section 16
in relation to a decision under section 746 (3) (Childcare service
licence—decision on application) to refuse to give a childcare service
licence.
Table 838.3 Review of decisions—ch 21
(Employment of children and young people)
column 1
item
|
column 2
reviewable decision
|
column 3
who must be told about
decision
|
column 4
who may apply for
review
|
1
|
section 785 to suspend educational institution’s exemption (in
relation to work experience program)
|
educational institution
|
educational institution
|
2
|
section 786 to revoke educational institution’s exemption (in
relation to work experience program)
|
educational institution
|
educational institution
|
3
|
section 787 to prohibit employer from employing, or continuing to
employ, child or young person
|
the employer
the child or young person
|
the employer
the child or young person
|
4
|
section 789 to state conditions in relation to employment of child or young
person that must be complied with
|
the employer
the child or young person
|
the employer
the child or young person
|
5
|
section 799 (2) to refuse to issue permit for high risk
employment
|
the employer
the child or young person
|
the employer
the child or young person
|
6
|
section 799 (3) to issue permit for high risk employment subject to
conditions
|
the employer
the child or young person
|
the employer
the child or young person
|
Chapter
25 Information secrecy and
sharing
Notes to ch 25
In making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration (see s 8).
In making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people (see s 8).
Part
25.1 Application and
definitions
The provisions of this chapter apply to young offenders and young detainees
who are adults in the same way as they apply to young offenders and young
detainees who are under 18 years old.
841 Definitions––Act
and ch 25
(1) In this Act:
protected information—see section 843.
sensitive information—see section 844.
(2) In this chapter:
divulge includes communicate.
information means information in any form and includes
advice.
Examples—information
1 a verbal opinion of a health professional
2 a written document
3 an electronic record
4 a verbal recommendation for action
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
information holder—see section 842.
State includes New Zealand.
842 Who
is an information holder?
In this chapter:
information holder means a person who—
(a) is or has been—
(i) the chief executive; or
(ii) the public advocate; or
(iii) an official visitor; or
(iv) a researcher for an approved research project; or
Note Approval of researchers and research projects is dealt with in
ch 22.
(v) someone else exercising a function, or purporting to exercise a
function, under this Act (other than a judge or magistrate); or
(vi) someone else engaged in the administration of this Act; or
(b) has been given information under this Act by a person mentioned in
paragraph (a).
Note Protected information may be given to people under various
provisions of this Act, including the following:
• s 496 (Annual review report—must be given to certain
people);
• s 849 (Minister or chief executive—giving information to
person about the person);
• s 850 (Minister or chief executive—giving information in
best interests of child or young person);
• s 851 (Chief executive—giving information to person
under corresponding provisions);
• s 854 (Chief executive—giving information to
researcher);
• s 859 (Minister or chief executive—giving safety and
wellbeing information to information sharing entity);
• s 864 (Giving protected information to court or investigative
entity).
843 What
is protected information?
(1) In this Act:
protected information means information about a person that
is disclosed to, or obtained by, an information holder because the information
holder is, or has been, an information holder.
(2) Without limiting subsection (1), protected
information includes sensitive information.
844 What
is sensitive information?
(1) For this Act:
sensitive information means any of the following:
(a) care and protection report information;
(b) care and protection appraisal information;
(c) interstate care and protection information;
(d) family group conference information;
(e) contravention report information;
(f) information prescribed by regulation.
Note Prenatal report information is also sensitive
information (see s 364).
(2) In this section:
care and protection appraisal information means
information—
(a) in a record of an appraisal; or
(b) that would allow information in a record of an appraisal to be worked
out; or
(c) in a report (an incident report) to the public advocate
under section 506 (Public advocate to be told about action following
appraisals); or
(d) that would allow information in a record of an appraisal or incident
report to be worked out.
care and protection report information means
information—
(a) in a child concern report; or
(b) in a record that relates to—
(i) a notification under the Children’s Services Act 1986,
section 103 (as in force at any time); or
(ii) a report under the Children and Young People Act 1999, section
157A, section 158 or section 159 (as in force at any time); or
(iii) any other information received by the chief executive under the
Children and Young People Act 1999 about the suspected abuse or neglect
of a child or young person; or
(iv) any information received about the suspected abuse or neglect of a
child or young person at any time an ordinance was in force in relation to child
welfare; or
(c) that would allow information in a child concern report or record
mentioned in paragraph (b) to be worked out; or
(d) that identifies a person as a person who made a child concern report
or record mentioned in paragraph (b); or
(e) that would allow a person’s identity as a person who made a
child concern report or record mentioned in paragraph (b) to be worked
out.
contravention report information means
information—
(a) in a confidential report made under section 875 (Confidential
report of contravention of Act); or
(b) that would allow the information in a confidential report to be worked
out; or
(c) that identifies a person as a person who made a confidential report;
or
(d) that would allow a person’s identity as a person who made a
confidential report to be worked out.
family group conference information means
information—
(a) about anything said or done to facilitate, or anything said or done
at, a family group conference arranged under section 80 (2);
or
(b) information in a family group conference agreement, or in a family
group conference outcome report, that relates to a family group conference
arranged under section 80 (2); or
(c) information that would allow information mentioned in
paragraph (a) or (b) to be worked out.
Note Family group conferences are dealt
with in ch 3 and ch 12.
interstate care and protection information means
information—
(a) in a report (an interstate care and protection report)
made under a provision of a law of a State corresponding (or substantially
corresponding) to section 353 (Voluntary reporting of abuse and neglect),
section 355 (Offence—mandatory reporting of abuse) or
section 361 (Prenatal reporting—anticipated abuse and neglect), that
is provided to the chief executive under a section corresponding (or
substantially corresponding) to—
(i) section 851 (Chief executive—giving information to person
under corresponding provisions); or
(ii) section 860 (Information sharing entity—giving safety and
wellbeing information to chief executive); or
(b) that would allow the information in an interstate care and protection
report to be worked out; or
(c) that identifies a person as a person who made an interstate care and
protection report; or
(d) that would allow a person’s identity as a person who made an
interstate care and protection report to be worked out.
Part
25.2 Offence to record or divulge
protected information
845 Offence—secrecy
of protected information
(1) An information holder commits an offence if the information
holder—
(a) makes a record of protected information about someone else;
and
(b) is reckless about whether the information is protected information
about someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
(2) An information holder commits an offence if the information
holder—
(a) does something that divulges protected information about someone else;
and
(b) is reckless about whether—
(i) the information is protected information about someone else;
and
(ii) doing the thing would result in the information being divulged to
someone else.
Maximum penalty: 50 penalty units, imprisonment for 6 months or
both.
846 Exception
to s 845—information given under this Act
(1) Section 845 (1) does not apply to the making of a record of
protected information if the record is made—
(a) under this Act; or
(b) in the exercise of a function, as an information holder, under this
Act.
(2) Section 845 (2) does not apply to the divulging of protected
information if the information is divulged—
(a) under this Act; or
(b) in the exercise of a function, as an information holder, under this
Act.
Note Protected information may be given to people under various
provisions of this Act, including the following:
• s 496 (Annual review
report—must be given to certain people);
• pt 25.3 (Sharing protected
information);
• pt 25.4 (Courts and investigative
entities).
847 Exception
to s 845—information given under another law
(1) Section 845 (1) (Offence––secrecy of protected
information) does not apply to the making of a record of protected information
if—
(a) the information is not sensitive information; and
(b) the record is made—
(i) in the exercise of a function, as an information holder, under another
law in force in the Territory; or
(ii) under another law in force in the Territory.
(2) Section 845 (2) does not apply to the divulging of protected
information if—
(a) the information is not sensitive information; and
(b) the information is divulged—
(i) under another territory law; or
(ii) in the exercise of a function, as an information holder, under
another territory law.
Note Other legislation may provide for information to be given to
people, including the following:
• Freedom of Information Act 1989,
s 10 (Right of access) and s 38 (Documents to which secrecy provisions
of enactments apply)
• Health Records (Privacy and Access)
Act 1997, s 10 (Statement of principle regarding right of access), and
s 14A (No access to health record relating to Children and Young People Act
complaint etc).
848 Exception
to s 845—information given with agreement
Section 845 (Offence––secrecy of protected information)
does not apply to protected information about a person if the
information—
(a) is not sensitive information; and
(b) is divulged with the person’s consent.
Part
25.3 Sharing protected
information
Note to pt 25.3
The Minister may make standards for the giving and seeking of protected
information by the chief executive under this chapter (see s 886 (2) (i)
(Standard-making power)).
Division
25.3.1 Generally
849 Minister
or chief executive—giving information to person about the
person
The Minister or chief executive may give a person protected information
held by the Minister or chief executive about the person.
850 Minister
or chief executive—giving information in best interests of child or young
person
(1) The Minister or chief executive may give someone protected information
about a child or young person if the Minister or chief executive considers that
giving the information is in the best interests of the child or young
person.
(2) Before the Minister gives protected information under this section,
the Minister must ask the chief executive for advice about giving the
information and consider any advice given by the chief executive.
(3) An information sharing entity may ask the chief executive for
information the chief executive may give the information sharing entity under
this section.
851 Chief
executive—giving information to person under corresponding
provisions
The chief executive may give protected information to any person who is
exercising a function, or otherwise engaged in the administration of, a
provision of a law of a State corresponding (or substantially corresponding) to
a provision of this Act if the chief executive considers that giving the
information is necessary to allow the person to exercise the function to
administer the law.
852 Family
group conference facilitator—giving information in best interests of child
or young person
A family group conference facilitator may give the chief executive
protected information about a child or young person if the family group
conference facilitator considers that giving the information is in the best
interests of the child or young person.
Note Family group conferences are dealt with in ch 3 and ch
12.
853 Out-of-home
carer and foster care service—giving information necessary for
responsibilities
(1) A carer may give someone protected information, that is not sensitive
information, about a child or young person if—
(a) the carer considers that giving the information is necessary for the
proper exercise of the carer’s responsibilities for the child or young
person; and
(b) the giving of the information is in accordance with any directions
given by the chief executive.
(2) In this section:
carer means—
(a) an out-of-home carer; or
(b) a foster care service.
854 Chief
executive—giving information to researcher
(1) The chief executive may give protected information to a researcher for
an approved research project.
(2) The information may be about the child or young person, his or her
family or someone else.
(3) In this section:
approved research project—see section 804.
855 Chief
executive—giving information to authorised assessor
(1) The chief executive may give an authorised assessor for a care and
protection assessment protected information in relation to the child or young
person, or other person, who is the subject of the assessment.
(2) In this section:
authorised assessor—see section 437.
856 Certain
identifying information not to be given
Information must not be given to anyone under this part if it is
information that—
(a) identifies a person as a person who made—
(i) a child concern report; or
(ii) a confidential report; or
(iii) an interstate care and protection report; or
(b) would allow a person’s identity as a person who made a report
mentioned in paragraph (a) to be worked out.
Division
25.3.2 Sharing safety and wellbeing
information
857 What
is safety and wellbeing information?
(1) In this division:
safety and wellbeing information, in relation to a child or
young person, means information that is relevant to the health, safety or
wellbeing of the child or young person.
Examples—information relevant to
safety or wellbeing of child or young person
1 information needed to assess whether a child or young person is at risk
of abuse or neglect
2 information needed to assess whether a child or young person is in need
of care and protection
3 information needed to implement a care and protection order
4 information needed to respond to a serious risk of harm to a child or
young person
5 information about the health of the child or young person
6 information about the educational needs of the child or young
person
7 information about the immunisation history of the child or young
person
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The information may be about the child or young person, his or her
family or someone else.
(3) To remove any doubt, safety and wellbeing information may be protected
or sensitive information.
858 Who
is an information sharing entity?
(1) In this part:
information sharing entity, for a child or young person,
means any of the following:
(a) a parent of the child or young person;
(b) someone else who has parental responsibility for the child or young
person;
Note Parental responsibility for a child
or young person is dealt with in div 1.3.2.
(c) an out-of-home carer for the child or young person;
Note Out-of-home carers are dealt with
in pt 15.4.
(d) a foster care service;
Note Foster care service is
defined in s 514.
(e) a Minister;
(f) an ACT education provider;
(g) a police officer or a member of a police service or force of a
State;
(h) a health facility;
(i) any of the following entities that provides services to, or has
contact with, the child or young person or his or her family:
(i) an administrative unit;
(ii) a community-based service;
(iii) a territory authority (other than the legal aid
commission);
(iv) a territory instrumentality;
(v) an entity established under a law of a State or the
Commonwealth;
(vi) the holder of a position established under a law of a State or the
Commonwealth;
(vii) a public employee (other than a judge or magistrate).
(2) In this section :
ACT education provider—see section 25.
859 Minister
or chief executive—giving safety and wellbeing information to information
sharing entity
(1) The Minister or chief executive may give an information sharing entity
for a child or young person safety and wellbeing information in relation to the
child or young person.
(2) An information sharing entity may ask the chief executive for
information the chief executive can give the information sharing entity under
this section.
(3) This section is additional to section 25 (Chief executive may ask for
assistance, etc).
Note The chief executive may also ask an information sharing entity
for information relevant to the safety, welfare and wellbeing of a child or
young person (see s 860).
860 Information
sharing entity—giving safety and wellbeing information to chief
executive
An information sharing entity for a child or young person may give the
chief executive safety and wellbeing information in relation to the child or
young person if the information sharing entity considers that giving the
information is in the best interests of the child or young person.
861 Chief
executive—asking information sharing entity for safety and wellbeing
information
(1) The chief executive may ask an information sharing entity for a child
or young person to give the chief executive safety and wellbeing information in
relation to the child or young person.
(2) An information sharing entity must comply with a request under
subsection (1)—
(a) promptly; and
(b) if the chief executive tells the entity that the situation is an
emergency—not later than 24 hours after the entity receives the
request.
(3) This section is additional to section 25 (Chief executive may ask
for assistance, etc).
862 Care
teams—sharing safety and wellbeing information
(1) The chief executive may declare that the chief executive and a group
of other people and entities are a care team for a child or young person.
Examples—care team members
1 an out-of-home carer
2 a counsellor
3 a psychologist
4 a health professional
5 an education provider
6 a foster care service
7 a family support worker
8 a youth support worker
9 a therapeutic protection service
10 a member of the child or young person’s treating team under the
Health Records (Privacy and Access) Act 1997
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) The chief executive may include a person or entity as a member of a
care team for a child or young person only if satisfied that the person or
entity is responsible for coordinating or delivering a service or care to the
child or young person, or his or her family members, under this Act or for a
criminal proceeding under another territory law.
(3) A member of a care team for a child or young person—
(a) may ask another member of the care team for safety and wellbeing
information about the child or young person; and
(b) may give safety and wellbeing information to another member of the
care team.
(4) The giving or receiving of safety and wellbeing information under this
section is subject to any instruction made by the chief executive under section
23.
Part
25.4 Courts and investigative
entities
In this part:
court includes a tribunal.
produce includes allow access to.
Note Investigative entity—see the dictionary.
864 Giving
protected information to court or investigative entity
(1) An information holder must give protected information to a court or
investigative entity if required to do so for this Act or another territory
law.
(2) An information holder must produce a document containing protected
information to a court or investigative entity if required to do so for this Act
or another territory law.
(3) An information holder may give protected information to a court or
investigative entity if authorised to do so by this Act or another territory
law.
(4) An information holder may produce a document containing protected
information to a court or investigative entity if authorised to do so by this
Act or another territory law.
(5) In this section:
court includes a court of the Commonwealth, a State or
another Territory.
Example
the Family Court of Australia
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
865 Court
may order sensitive information to be given or produced
(1) A court may, in any proceeding, order an information holder
to—
(a) give sensitive information to the court; or
(b) produce a document containing sensitive information to the
court.
(2) However, the court must not allow a document given to it under
subsection (1) (b) to be given to the parties to the proceeding unless
satisfied that—
(a) the information is materially relevant to the proceeding;
and
(b) if the information is about a child or young person—the best
interests of the child or young person are protected.
(3) In making a decision under subsection (2), the court must consider the
desirability of protecting the identity of a person who made a child concern
report, confidential report or interstate care and protection report.
(4) To enable the court to make a decision under subsection (2), the
court must allow the information holder to be heard in relation to its
disclosure to the parties.
(5) In making a decision under
subsection (2), the court must deal with the information given or produced
under subsection (3) in a way that ensures the information is not divulged
or produced to anyone else.
(6) In particular, the court must ensure
that no copies of the information can be made without leave of the
court.
(7) If the court decides not to allow a document
produced to it under subsection (1) (b) to be given to the parties, the
court must return the document to the information holder.
866 Investigative
entity may divulge protected information etc
(1) An investigative entity may—
(a) divulge protected information (including sensitive information) in
relation to an investigation it is carrying out to another investigative entity;
and
(b) divulge protected information (other than sensitive information) in
relation to an investigation it is carrying out to someone else.
(2) However, an investigative entity may divulge sensitive information in
relation to an investigation to someone other than another investigative entity
only if satisfied that—
(a) the information is materially relevant to the investigation;
and
(b) disclosure of the information is in the public interest; and
(c) if the information is about a child or young person—the best
interests of the child or young person are protected; and
(d) the information does not include information that—
(i) identifies a person as a person who made a child concern report;
or
(ii) would allow a person’s identity as a person who made a child
concern report to be worked out; or
(iii) identifies a person as a person who made a confidential report;
or
(iv) would allow a person’s identity as a person who made a
confidential report to be worked out; or
(v) identifies a person as a person who made an interstate care and
protection report; or
(vi) would allow a person’s identity as a person who made an
interstate care and protection report to be worked out.
(3) To enable the investigative entity to make a decision under
subsection (2), the investigative entity must allow the information holder
to be heard in relation to the divulging of the information.
Part
25.5 Admissibility of
evidence
867 How
child concern reports may be used in evidence
(1) This section applies if a person honestly and without recklessness
makes a child concern report.
(2) The report, or evidence of the contents of the report, is admissible
in evidence in a proceeding in a court or tribunal only if—
(a) the report or evidence is given to the court or tribunal by the person
who made the report; or
(b) the proceeding is a proceeding under the care and protection chapters
in relation to the child or young person who is the subject of the report;
or
(c) the proceeding is before a court hearing an appeal from a decision of
the Childrens Court in a proceeding mentioned in paragraph (b); or
(d) the proceeding is about a charge or allegation made in a proceeding
against a person in relation to the person’s exercising a function under
this Act.
(3) Before admitting a report, or evidence of a report, under this
section, the court or tribunal must give the chief executive the opportunity to
be heard.
Note For admissibility of a prenatal report, see s 363.
868 Confidential
report—not admissible in evidence
(1) A confidential report is not admissible in evidence in any proceeding
in a court or tribunal.
(2) Evidence of the contents of a confidential report is also not
admissible in evidence in any proceeding in a court or tribunal.
(3) No-one may be compelled in any proceeding before a court or
tribunal—
(a) to produce a confidential report or a copy of, or extract from, a
confidential report; or
(b) to disclose, or give evidence of, the contents of a confidential
report.
(4) This section is subject to section 869 and
section 870.
869 Confidential
report—confidential reporter may give evidence
In any proceeding in a court or tribunal, the confidential reporter may
give evidence about the confidential reporter’s suspicion under
section 875 (1), and the reasons for the suspicion.
870 Confidential
report—evidence admissible with agreement or leave
(1) This section applies to evidence—
(a) that a particular matter is contained in a confidential report;
or
(b) that identifies, or is likely to lead to the identification of, the
confidential reporter.
(2) The evidence is admissible in a proceeding in a court or tribunal only
if—
(a) the confidential reporter agrees, in writing, to the admission of the
evidence; or
(b) the court or tribunal gives leave for the evidence to be
given.
(3) The court or tribunal may give leave under
subsection (2) (b) only if satisfied that it is necessary for the
evidence to be given—
(a) to ensure the safety and wellbeing of a child or young person;
or
(b) in relation to a charge or allegation made in a proceeding against
someone about the exercise of the person’s functions under this Act;
or
(c) to decide whether the report was made honestly and without
recklessness.
871 Things
said at conference not admissible in care and protection
proceedings
(1) Evidence of anything said or done at a family group conference
arranged under section 80 (2) is not admissible in a proceeding under the
care and protection chapters.
(2) However, a conference outcome report is admissible in a proceeding
under the care and protection chapters to prove whether an agreement was or was
not reached.
872 Interim
matters—things said at court-ordered meeting
Evidence of anything said or done at a court-ordered meeting in relation to
a proceeding under the care and protection chapters is admissible in the
proceeding only if—
(a) the parties to the proceeding agree to the evidence being admitted;
or
(b) the Childrens Court gives leave for the evidence to be
admitted.
Part
25.6 Protection of people who give
information
873 Protection
of people giving certain information
(1) If a person gives information mentioned in subsection (2)
honestly and without recklessness—
(a) giving the information is not a breach of—
(i) confidence; or
(ii) professional etiquette or ethics; or
(iii) a rule of professional conduct; and
(b) the person does not incur civil or criminal liability only because of
giving the information.
(2) Subsection (1) applies to information given by—
(a) a relevant person to the chief executive in response to a request made
by the chief executive under section 25 (Chief executive may ask for
assistance, etc); and
(b) a person to the official visitor under section 44 (Complaints to
official visitors); and
(c) a person to a chief executive for a report under the Court
Procedures Act 2004, section 74D (Court may order report about young
person); and
(d) a health professional to the chief executive in a report of assessment
made by the health professional under section 160 (3) (Health
assessment); and
(e) a relevant chief executive to the chief executive in a report under
section 185 (Health reports); and
(f) a person in a report to the chief executive under section 192
(Mandatory reporting of threats to security etc at detention place);
and
(g) a person to the chief executive under section 353 (Voluntary
reporting of abuse and neglect); and
(h) a person to the chief executive under section 355
(Offence—mandatory reporting of abuse); and
Note Information given honestly and
without recklessness to the public advocate under s 358 is protected under
the Public Advocate Act 2005, s 15.
(i) a person to the chief executive under section 359 (4) (a) (Chief
executive to act on child concern report); and
(j) a person to the chief executive under section 360 (3) (a) (Chief
executive action on child protection report); and
(k) a person to the chief executive under section 361 (Prenatal
reporting—anticipated abuse and neglect); and
(l) a person in a report to the chief executive under section 361
(Prenatal reporting—anticipated abuse and neglect); and
(m) a person to a police officer under
section 679 (1) (d) (Police powers); and
(n) an out-of-home carer or foster care service to someone under section
853 (Out-of-home carer and foster care service—giving information
necessary for responsibilities); and
(o) an information sharing entity to the chief executive under
section 860 (Information sharing entity—giving safety and wellbeing
information to chief executive) or section 861 (Chief executive—asking
information sharing entity for safety and wellbeing information); and
(p) a member of a care team to another member of the care team under
section 862 (Care teams—sharing safety and wellbeing information);
and
(q) a person to the chief executive under section 875 (Confidential
report of contravention of Act).
Note The chief executive and official visitor are protected from
civil liability for giving information by s 877.
874 Interaction
with other laws
(1) This chapter does not limit a power or obligation under another law to
give relevant information.
(2) This chapter applies to information despite any other law that would
otherwise prohibit or restrict the giving of the information.
Examples—other
laws
• Evidence Act 1995 Cwlth)
• Health Records (Privacy and Access) Act 1997
• Privacy Act 1988 (Cwlth)
• Public Sector Management Act 1994
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
Notes to ch 26
In making a decision under this chapter for a child or young person, the
decision-maker must regard the best interests of the child or young person as
the paramount consideration (see s 8).
In making a decision under this chapter otherwise than for a particular
child or young person, the decision-maker must consider the best interests of
children and young people (see s 8).
875 Confidential
report of contravention of Act
(1) This section applies if a person suspects that a provision of this Act
is being, or has been, contravened.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any standards made under
s 886 (see Legislation Act, s 104).
(2) The person may report (in a confidential report) the
suspicion, and the reasons for the suspicion, to the chief executive.
876 Offence—tattoo
child or young person without agreement
(1) A person commits an offence if—
(a) the person tattoos a part of another person’s body;
and
(b) the other person is a child or young person; and
(c) the person does not have agreement, in writing, from a person who has
daily care responsibility, or long-term care responsibility, for the child or
young person, to—
(i) tattoo that part of the child’s or young person’s body;
or
(ii) tattoo the child or young person in that way.
Maximum penalty: 50 penalty units.
(2) An offence against this section is a strict liability
offence.
(3) It is a defence to a prosecution for an offence against this section
if the defendant proves that—
(a) before tattooing the person, the person had shown a document of
identification to the defendant; and
(b) the defendant had no reasonable grounds for believing that the
document was not a genuine document of identification of the person.
(4) In this section:
document of identification, of a person, means a document
that—
(a) is—
(i) an Australian driver licence or a licence to drive a motor vehicle
(however described) issued under the law of an external Territory or a foreign
country; or
(ii) a proof of age card under the Liquor Act 1975 or a
corresponding document issued under the law of a State; or
(iii) a passport; and
(b) contains a photograph that could reasonably be taken to be of the
person; and
(c) indicates that the person to whom the document was issued is at least
18 years old.
877 Protection
of officials from liability
(1) In this section:
official means—
(a) the chief executive; or
(b) an official visitor; or
(c) a person who is exercising, or has exercised, a function under this
Act; or
(d) a person who is, or has been, engaged in the administration of this
Act.
(2) An official, or anyone engaging in conduct under the direction of an
official, is not civilly liable for conduct engaged in honestly and without
recklessness—
(a) in the exercise of a function under this Act; or
(b) in the reasonable belief that the conduct was in the exercise of a
function under this Act.
(3) Any liability that would, apart from this section, attach to an
official attaches instead to the Territory.
Note A reference to an Act includes a reference to the statutory
instruments made or in force under the Act, including any regulation (see
Legislation Act, s 104).
878 ACT
child welfare services must assist public advocate
(1) For the purpose of exercising a statutory function, the public
advocate may ask an ACT child welfare service to provide information, advice,
guidance, assistance, documents, facilities or services in relation to the
physical or emotional welfare of children and young people.
(2) If the public advocate makes a request of an ACT child welfare service
under subsection (1), the service must comply with the request
promptly.
(3) In this section:
ACT child welfare service means any of the following entities
if the entity is involved in providing welfare services for children and young
people:
(a) an administrative unit;
(b) a territory authority;
(c) a territory instrumentality;
(d) a public employee;
(e) a police officer.
Note A person who gives information honestly and without
recklessness under this section does not breach professional ethics etc and is
protected from civil liability (see Public Advocate Act 2005,
s 15).
879 Notification
of location of child or young person
(1) This section applies if—
(a) a child or young person has voluntarily entered a hospital, police
station or refuge (the place); and
(b) the person in charge, or an occupier, of the place suspects on
reasonable grounds that none of the following people knows the location of the
child or young person:
(i) a parent of the child or young person;
(ii) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person.
(2) The person in charge, or occupier, may, if the person or occupier
believes on reasonable grounds that it is in the best interests of the child or
young person to do so—
(a) tell a parent of the child or young person, or someone else who has
daily care responsibility, or long-term care responsibility, for the child or
young person, of the location of the child or young person; and
(b) if the place is not at a police station—tell a police officer
that the child or young person is at the hospital or refuge.
880 Evidentiary
certificates—chief executive—parental
responsibility
In a proceeding under this Act, a certificate purporting to be signed by
the chief executive stating that, on a stated date or during a stated period,
the chief executive had, or shared, daily care responsibility, or long-term care
responsibility, for a stated child or young person is evidence of the matters
stated in the certificate.
881 Evidentiary
certificates—chief executive—custody etc
(1) A certificate that appears to be signed by the chief executive that
states any of the following is evidence of the matter:
(a) that a stated person was, or was not, subject to detention on a stated
day;
(b) that a stated person was, or was not, in the chief executive’s
custody on a stated day;
(c) that a stated young offender subject to full-time detention did not
comply with a stated obligation of the detention;
(d) that the chief executive gave a stated direction to a stated person on
a stated day;
(e) that a stated person did not comply with a stated direction by the
chief executive on a stated day;
(f) that a stated decision was made by the chief executive on a stated
date;
(g) that a stated person did, or did not, occupy a position under this Act
on a stated day;
(h) that a stated instrument under this Act was, or was not, in force on a
stated day;
(i) that a stated instrument is a copy of an instrument made, given,
issued or received under this Act.
(2) A certificate mentioned in subsection (1) may state a matter by
reference to a date or period.
(3) A certificate of the results of the analysis of a substance under this
Act, signed by an analyst appointed under section 882, is evidence of the facts
stated in the certificate.
(4) A certificate signed by or for the chief executive that states any
matter prescribed by regulation is evidence of the stated matter.
(5) A court must accept a certificate or other document mentioned in this
section as proof of the matters stated in it if there is no evidence to the
contrary.
882 Appointment
of analyst for Act
(1) The chief executive may appoint analysts for this Act.
Note 1 For the making of appointments (including acting
appointments), see the Legislation Act, pt 19.3.
Note 2 In particular, a person may be appointed for a particular
provision of a law (see Legislation Act, s 7 (3)) and an appointment may be made
by naming a person or nominating the occupant of a position (see Legislation
Act, s 207).
(2) An appointment under subsection (1) is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
883 Chief
police officer delegations
(1) The chief police officer may delegate any of the chief police
officer’s functions under this Act to a police officer.
(2) This section does not limit the chief police officer’s power to
delegate a function under any other territory law.
Note For the making of delegations and the exercise of delegated
functions, see the Legislation Act, pt 19.4.
884 Determination
of fees
(1) The chief executive may determine fees for this Act.
Note The Legislation Act contains provisions about the making of
determinations and regulations relating to fees (see pt 6.3)
(2) A determination is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
(1) The chief executive may approve forms for this Act (other than for use
in relation to the Childrens Court).
(2) If the chief executive approves a form for a particular purpose, the
approved form must be used for that purpose.
Note For other provisions about forms, see the Legislation Act, s
255.
(3) An approved form is a notifiable instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
886 Standard-making
power
(1) The Minister may make standards for this Act.
Note Power to make a statutory instrument includes power to amend or
repeal the instrument. The power to amend or repeal the instrument is
exercisable in the same way, and subject to the same conditions, as the power to
make the instrument (see Legislation Act, s 46).
(2) The standards may make provision for the following:
(a) the conduct of family group conferences and the implementation of
family group conference agreements (family group conference
standards);
Note Family group conferences are dealt
with in ch 3 and ch 12.
(b) the conduct of drug testing under a drug use provision in a care and
protection order (drug testing standards);
Note Drug use provisions in care and
protection orders are dealt with in pt 14.9.
(c) the care to be provided for children and young people by out-of-home
carers (out-of-home care standards);
Note Out-of-home care is dealt with in
pt 15.4.
(d) the operation of therapeutic protection places and services
(therapeutic protection standards);
Note A child or young person may be
confined at a therapeutic protection place under a therapeutic protection order
(see pt 16.2).
(e) the operation of childcare services (childcare services
standards);
Note Childcare services are dealt with
in ch 20.
(f) employers of children and young people (children and young
people employment standards);
Note Employment of children and young
people is dealt with in ch 21.
(g) the requirements for the operation of work experience programs
(work experience standards);
Note Work experience programs are dealt
with in pt 21.2.
(h) research involving children and young people (research
standards);
Note Research is dealt with in ch
22.
(i) the giving and seeking of protected information by the chief executive
under chapter 25 (information sharing standards).
(3) A standard is a disallowable instrument.
Note A disallowable instrument must be notified, and presented to
the Legislative Assembly, under the Legislation Act.
887 Regulation-making
power
(1) The Executive may make regulations for this Act.
Note A regulation must be notified, and presented to the Legislative
Assembly, under the Legislation Act.
(2) A regulation may make provision for—
(a) the duties of people in charge of detention places; and
(b) the health and safety (including medical examinations) of children or
young people, and other people, at places of detention; and
(c) any of the following in relation to injuries suffered by children or
young people, and other people, that arise out of, or in the course of, their
detention, or the performance of community service:
(i) injury management;
(ii) compensation for a permanent injury;
(iii) vocational rehabilitation;
(iv) death benefits; and
(d) travel and transport arrangements for children or young people, and
other people, performing community service; and
(e) the discipline and security (including the use of force, inspection of
mail, and the use of video surveillance and other monitoring devices) at or for
places of detention; and
(f) the safety, management and good order of places of
detention.
(3) A regulation may also prescribe offences for contraventions of the
regulation and prescribe maximum penalties of not more than 10 penalty
units for offences against the regulation.
(4) In this section:
injury includes—
(a) disease; and
(b) aggravation, acceleration and recurrence of an injury or
disease.
This Act amends the legislation mentioned in schedule 1.
Schedule
1 Amendments of other
legislation
(see s 888)
Part
1.1 Corrections Management Act
2007
substitute
(3) Also, this Act (other than chapter 4 (Detention in police and court
cells)) does not apply to a person detained under the Children and Young
People Act 2008.
[1.2] Section
29, new definitions
insert
chief executive means—
(a) for a detainee (other than a young detainee)—the chief executive
responsible for this Act;
(b) for a young detainee—the chief executive responsible for the
Children and Young People Act 2008.
young detainee—see the Children and Young People Act
2008, section 95.
insert
(2) In this chapter—
(a) a reference to a correctional centre is, in relation to
the custody or detention of a young detainee, a reference to a detention place
under the Children and Young People Act 2008; and
(b) a reference to a corrections officer is, in relation to
the custody or detention of a young detainee, a reference to a youth detention
officer under the Children and Young People Act 2008.
substitute
(2) However, a person lawfully required to be in police custody must not
be detained continuously at a police cell for a period longer than the following
period (the allowed period):
(a) for a detainee (other than a young detainee)—36 hours;
(b) for a young detainee—12 hours.
omit
36 hours
substitute
the allowed period
omit
For this section,
substitute
For the application of this section to a detainee (other than a young
detainee),
insert
(3) For the application of this section to a young detainee, the following
provisions of the Children and Young People Act 2008 apply as if the
direction, search or seizure occurred under the relevant part in relation to a
young detainee at a detention place:
(a) part 7.1 (Preliminary—ch 7);
(b) part 7.2 (Searches generally);
(c) part 7.3 (Scanning, frisking and ordinary searches);
(d) part 7.4 (Strip searches—young detainees);
(e) part 7.9 (Seizing property).
insert
31A Detention in police cells—additional
provisions for young detainees
(1) This section applies if a young detainee is detained at a police cell
under section 30.
(2) The chief police officer must ensure that the young
detainee—
(a) is kept separate from adult detainees; and
(b) has prompt access to medical and legal assistance; and
(c) is told, in language and a way he or she can readily understand, about
the reason for the detention and the procedures that apply; and
(d) is able to contact and be contacted by each of the
following:
(i) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(ii) the public advocate;
(iii) the ombudsman.
Note The Crimes Act 1914 (Cwlth), pt 1C contains provisions
about investigation of offences (including about periods of arrest and
obligations of investigating officials) that apply to indictable offences
against ACT laws.
In particular, that Act, s 23Q provides that a person who is under
arrest or a protected suspect must be treated with humanity and with respect for
human dignity, and must not be subjected to cruel, inhuman or degrading
treatment.
[1.9] Section
33 (2), new note
insert
Note If the person is a young offender who is under 18 years old, he
or she must not be placed in a room with an adult who is under detention (see
Children and Young People Act 2008, s 100).
substitute
(3) However, the person must not be detained continuously at a court cell
for a period longer than the following period (the allowed
period):
(a) for a detainee (other than a young detainee)—36 hours;
(b) for a young detainee—12 hours.
omit
36 hours
substitute
the allowed period
substitute
(5) While detained at a court cell under this section—
(a) a detainee (other than a young detainee) is taken to be a detainee for
all purposes under this Act; and
(b) a young detainee is taken to be a young detainee for all purposes
under the Children and Young People Act 2008.
insert
33A Detention in court cells—additional
provisions for young detainees
(1) This section applies if a young detainee is detained at a court cell
under section 33.
(2) The chief executive must ensure that the young
detainee—
(a) is kept separate from adult detainees; and
(b) has prompt access to medical and legal assistance; and
(c) is told, in language and a way he or she can readily understand, about
the reason for the detention and the procedures that apply; and
(d) is able to contact and be contacted by each of the
following:
(i) a commissioner exercising functions under the Human Rights
Commission Act 2005;
(ii) the public advocate;
(iii) the ombudsman.
substitute
(6) To remove any doubt, while detained under this
section—
(a) a detainee (other than a young detainee) remains a detainee for all
purposes under this Act; and
(b) a young detainee remains a young detainee for all purposes under the
Children and Young People Act 2008.
Part
1.2 Court Procedures Act
2004
insert
Part 7A Procedural
provisions—proceedings involving children or young
people
Division 7A.1 General
69 Childrens Court procedure
(1) The Magistrates Court Act 1930, chapter 3 (Criminal
proceedings), and the rules applying to criminal proceedings in the Magistrates
Court, apply to the Childrens Court in relation to a criminal
proceeding.
(2) The rules applying to civil proceedings in the Magistrates Court apply
to the Childrens Court in relation to any other proceeding.
71 When parents must attend court proceedings
(1) A parent of a child or young person who is the subject of a proceeding
in a court must attend the court throughout the proceeding if—
(a) notice of the proceeding has been given to the parent; or
(b) the parent otherwise knows of the proceeding.
(2) Notice of a proceeding given to a parent must state—
(a) when and where the hearing of the proceeding will begin; and
(b) that a warrant may be issued to bring the parent before the court if
the parent does not attend throughout the proceeding.
(3) The court may issue a warrant to bring a parent of a child or young
person before the court if—
(a) notice of the proceeding has been given to a parent of the child or
young person; but
(b) neither parent attends the court at the beginning of, or at any time
during, the proceeding.
(4) This section applies to a parent who lives in or outside the
ACT.
(5) However, this section does not apply to a parent if—
(a) daily care responsibility or long-term care responsibility for the
child or young person has been transferred to someone else; or
(b) for a criminal proceeding—the parent was a victim of the offence
to which the proceeding relates and the court excludes the parent under section
72 (2); or
(c) exceptional circumstances prevent the parent from attending.
Examples—par (c)
1 the parent is overseas and unable to return
2 the parent is serving a sentence of imprisonment by full-time
detention
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(6) Also, this section does not apply to a proceeding under the care and
protection chapters of the Children and Young People Act 2008.
(7) In this section:
daily care responsibility—see the Children and Young
People Act 2008, section 19.
long-term care responsibility—see the Children and
Young People Act 2008, section 20.
72 Court proceedings involving children or young
people not open to public
(1) If a child or young person is the subject of a proceeding in a court,
the following people are the only people who may be present at the hearing of
the proceeding:
(a) an officer of the court;
(b) a party to the proceeding, a lawyer representing the party, and an
employee of the lawyer;
(c) a parent of the child or young person;
(d) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(e) anyone else the court admits as the child’s or young
person’s representative;
(f) the chief executive responsible for the Children and Young People
Act 2008 or an authorised person under that Act;
(g) the public advocate or a person authorised by the public advocate for
this section;
(h) a person who has, or a representative of an entity that has, provided
a report under the care and protection chapters of the Children and Young
People Act 2008;
(i) for a criminal proceeding—a person who attends the proceeding to
prepare a news report of the proceeding and is authorised to attend for that
purpose by the person’s employer;
Note Publishing certain information
about proceedings involving children is an offence (see Criminal Code,
s 712A (Publishing identifying information about childrens
proceedings)).
(j) for a criminal proceeding—a person who was a victim of an
offence to which the proceeding relates, unless the person is excluded by the
court under subsection (2);
(k) for a criminal proceeding in which circle sentencing is being
considered—a person involved in the circle sentencing;
(l) anyone else required or permitted to be present by the court or under
the Children and Young People Act 2008 or any other Act.
(2) A court may exclude a person who was a victim of an offence to which a
criminal proceeding relates from being present at the hearing of the proceeding
if it considers it is appropriate to do so having regard to—
(a) the person’s behaviour or expected behaviour; or
(b) the nature of the person’s relationship with the child or young
person.
Example—par (b)
a violent or abusive relationship
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(3) The public advocate and the chief executive responsible for the
Children and Young People Act 2008 may make submissions to the court
about whether the court should require or permit a person to be present under
subsection (1) (l), or exclude a person under subsection (2).
(4) In this section:
circle sentencing—see the Magistrates Court Act
1930, section 309 (4).
daily care responsibility—see the Children and Young
People Act 2008, section 19.
long-term care responsibility—see the Children and
Young People Act 2008, section 20.
73 Court may excuse parties from attending
proceedings
(1) This section applies if a child or young person is the subject of a
proceeding in a court.
(2) On the application of a party to the proceeding, the court may excuse
the party from attending all or part of the proceeding.
(3) The court may, at any time and by notice given to the party, require
the party to attend the proceeding.
74 Certain related applications may be heard together
(1) If 2 or more applications have been filed in a court in relation to a
child or young person, the court may hear and decide the applications together
if it considers that it would be in the best interests of the child or young
person.
(2) If 2 or more applications are before a court in relation to children
or young people who are related, or that raise related matters about children or
young people, the court may hear and decide the applications together if it
considers that it would be in the best interests of each child or young
person.
74A Participation of children and young people in
proceedings
(1) A child or young person has a right to take part in a proceeding in a
court in relation to the child or young person.
(2) The court may ask the chief executive responsible for the Children
and Young People Act 2008 to assist the court by giving the child or young
person sufficient information about the proceeding, in language and a way that
the child or young person can understand, to allow the child or young person to
take part fully in the proceeding.
74B Court must ensure children and young people etc
understand proceedings
In a proceeding under the Children and Young People Act 2008 or
another territory law to which a child or young person is a party, the court
must endeavour to ensure that the child or young person and any other party
present at the hearing of the proceeding—
(a) understands the nature and purpose of the proceeding and of any order
that the court proposes to make or has made; and
(b) if any relevant right of appeal exists—knows of the existence of
a right of appeal against the relevant finding or order of the court.
74C Chief executive and public advocate etc may
appear at proceedings
(1) This section applies if there is a hearing in a court
of—
(a) a proceeding against a child or young person; or
(b) an application, proceeding or matter under the Children and Young
People Act 2008 or in relation to which that Act applies.
(2) Each of the following is entitled to appear and be heard and may call
witnesses:
(a) the chief executive responsible for the Children and Young People
Act 2008;
(b) an authorised person under the Children and Young People
Act 2008;
(c) the public advocate;
(d) a person authorised by the public advocate for this section.
74D Court may order report about young person
(1) A court hearing a criminal proceeding in relation to or against a
child or young person may order the chief executive responsible for the
Children and Young People Act 2008 to give the court a report about the
child or young person.
(2) A chief executive given an order must, despite any other ACT law other
than the Human Rights Act 2004, give a report.
(3) In giving effect to the order, the chief executive may do, or arrange
for someone else to do, 1 or more of the following:
(a) visit and interview the child or young person;
(b) interview a parent of the child or young person;
(c) interview a schoolteacher or other person involved with the education
or welfare of the child or young person;
(d) require the child or young person to submit to being interviewed by a
doctor or other named person.
(4) Unless a court otherwise orders, a copy of the report must be made
available to the parties to the proceeding.
(5) The person providing the report may be called as a witness by a party
to the proceeding.
74E Children and young people may have legal and
other representative
(1) In a proceeding in a court in relation to a child or young person, the
child or young person may be represented by a lawyer or litigation guardian, or
both.
(2) A representative of the child or young person must ensure that views
and wishes stated by the child or young person are put to the court.
(3) A representative of the child or young person must tell the court
whether the representative is acting on the child’s or young
person’s instructions or in the best interests of the child or young
person, or both.
74F Leave needed for litigation guardian
(1) In a proceeding in a court in relation to a child or young person, a
person may be a litigation guardian for the child or young person only if the
court gives leave.
(2) The court may give leave for a person to be a litigation guardian for
a child or young person only if both the person and the child or young person
have been given an opportunity to be heard about the appointment.
74G Legal representation of children and young people
A court may hear a proceeding in relation to a child or young person only
if—
(a) the child or young person has a lawyer; or
(b) the court is satisfied that—
(i) the child or young person has had a reasonable opportunity to get
legal representation; and
(ii) the best interests of the child or young person will be adequately
represented in the proceeding.
74H Orders about legal representation of children and
young people—all proceedings
(1) This section applies if, in a proceeding in a court in relation to a
child or young person—
(a) the child or young person does not have a lawyer; and
(b) either—
(i) the court is not satisfied that the child or young person has made, or
can make, an informed and independent decision not to be represented by a
lawyer, and it considers that the child or young person should be represented by
a lawyer; or
(ii) the court is not satisfied that the interests of the child or young
person will be adequately represented in the proceeding.
(2) The court may, on application or on its own initiative, make any
order, or give any direction, it considers necessary or desirable to allow the
child or young person a reasonable opportunity to get a lawyer.
74I Rule-making committee and court to have regard to
youth justice principles
(1) The rule-making committee must have regard to the youth justice
principles in making rules that relate, or may relate, to criminal proceedings
involving children or young people.
(2) A court must have regard to the youth justice principles in deciding
any matter relating to the conduct of a criminal proceeding before the court
that involves a child or young person.
(3) A court may also have regard to the youth justice principles when
deciding any matter relating to the conduct of a criminal proceeding before the
court that involves—
(a) a person who is at least 18 years old but under 21 years old; and
(b) an offence committed, or allegedly committed, by the person when he or
she was under 18 years old.
(4) In this section:
youth justice principles—see the Children and Young
People Act 2008, section 94.
Division 7A.2 Care and protection
considerations in proceedings
74J Definitions—div 7A.2
In this division:
care and protection chapters means the care and protection
chapters under the Children and Young People Act 2008.
chief executive means the chief executive responsible for the
Children and Young People Act 2008.
in need of care and protection, for a child or young
person—see the Children and Young People Act 2008,
section 344.
74K Proceedings dismissed or adjourned for care and
protection reasons
(1) If, when hearing an indictment against a child or young person, the
court is satisfied that the child or young person is in need of care and
protection, the court may—
(a) dismiss the indictment; or
(b) adjourn the proceeding for up to 15 days.
Note Indictment includes information (see Legislation Act,
dict, pt 1).
(2) If a court acts under subsection (1), the court must, as soon as
practicable but not later than 2 working days after the day it acts,
give a statement of the reasons for the action to—
(a) the chief executive; and
(b) the public advocate.
(3) The statement of reasons must contain the following information about
the proceeding:
(a) if the proceeding has been adjourned—the reason the proceeding
was adjourned;
(b) the circumstances the court is aware of that led to the child or young
person coming before the court;
(c) the factors that satisfied the court that the child or young person is
in need of care and protection.
(4) The chief executive must treat a statement of reasons given to the
chief executive under subsection (2) as if it were a report made under the
Children and Young People Act 2008, section 355
(Offence—mandatory reporting of abuse).
74L Chief executive must report to court and public
advocate
(1) This section applies if—
(a) a proceeding has been adjourned under section 74K (1);
and
(b) the court has given the chief executive a statement of reasons under
section 74K (2).
(2) Not later than 15 days after the day the court adjourns the
proceeding under section 74K (1), the chief executive must tell the
public advocate and the court, in writing—
(a) what action the chief executive has taken, is taking or proposes to
take under the care and protection chapters in relation to the child or young
person; or
(b) if the chief executive proposes to take no action under any care and
protection chapter in relation to the child or young person—that the chief
executive proposes to take no action.
(3) Without limiting when the chief executive is taken to have complied
with subsection (2), the chief executive is taken to have complied with
that subsection if the chief executive—
(a) makes an application under the care and protection chapters in
relation to the child or young person; and
(b) gives a copy of the application to the public advocate.
74M Court action after adjournment
(1) This section applies when a proceeding adjourned under
section 74K (1) comes before the court again.
(2) The court may dismiss the proceeding—
(a) if—
(i) the chief executive has, under section 74L (2) (a), told the
court what action the chief executive has taken, is taking or proposes to take
under the care and protection chapters in relation to the child or young person;
and
(ii) the court is satisfied that taking the action is in the best
interests of the child or young person; or
(b) if—
(i) the chief executive has, under section 74L (2) (b),
told the court that the chief executive proposes to take no action under any
care and protection chapter in relation to the child or young person;
and
(ii) the court is satisfied that it is in the best interests of the child
or young person that the chief executive takes no action; or
(c) the chief executive has made an application under the care and
protection chapters in relation to the child or young person.
(3) The court may also make any other order or take any other action in
relation to the indictment against the child or young person that the court
considers appropriate.
[1.16] Dictionary,
new definitions
insert
child, for part 7A (Procedural provisions—proceedings
involving children or young people)—see the Children and Young People
Act 2008, section 11.
young person, for part 7A (Procedural
provisions—proceedings involving children or young people)—see the
Children and Young People Act 2008, section 12.
insert
Division 10.7 Particular provisions for
children
Subdivision 10.7.1 Arrest of children under
10 years old
252A Warrant for arrest of child under 10 years
old
(1) An issuing officer may issue a warrant for the arrest of a child under
10 years old only if the issuing officer believes on reasonable grounds
that the child has carried out, or is carrying out, conduct
that—
(a) makes up the physical elements of an offence; or
(b) poses a risk to community safety or the child.
(2) However, the issuing officer must not issue a warrant unless a police
officer has given the issuing officer an affidavit setting out—
(a) the reasons why the warrant is sought; and
(b) any evidence the police officer believes supports the warrant’s
issue.
(3) If the issuing officer issues a warrant, the issuing officer must
write on the warrant which of the reasons stated in the affidavit, and any other
reasons, the officer has relied on as justifying the issue of the
warrant.
252B Arrest of child under 10 years old—without
warrant
(1) A police officer may, without a warrant, arrest a child under
10 years old if the police officer believes on reasonable
grounds—
(a) that—
(i) conduct that makes up the physical elements of an offence or a breach
of the peace is being or is likely to be carried out by the child; or
(ii) a person has suffered physical injury because of the child’s
conduct; or
(iii) there is imminent danger of injury to a person or serious damage to
property because of the child’s conduct; and
(b) that it is necessary to arrest the child immediately—
(i) to prevent the conduct or a repetition of the conduct; or
(ii) to protect life or property.
(2) If the police officer believes on reasonable grounds that the child is
on premises, the police officer may, with reasonable and necessary force, enter
the premises to arrest the child.
252C Police action after arresting child under 10
years old
(1) If a police officer arrests a child under 10 years old (whether
under a warrant or under section 252B), the police officer
must—
(a) do the minimum necessary to prevent or stop the conduct for which the
warrant was issued or the arrest was made; and
(b) take the child to—
(i) a parent of the child; or
(ii) someone else who has daily care responsibility, or long-term care
responsibility, for the child; or
(iii) if it is not practicable or appropriate to take the child to someone
mentioned in subparagraph (i) or (ii)—another appropriate person or
agency.
(2) Before deciding whether another person or agency is appropriate, the
police officer must consult with the chief executive responsible for the
Children and Young People Act 2008.
Subdivision 10.7.2 Preliminary procedures in
relation to children and young people
252D Definitions—subdiv 10.7.2
In this subdivision:
child—see the Children and Young People Act
2008, section 11.
committed an offence, for a child or young person, includes
committed an offence with someone else or other people.
under restraint—see section 252E.
young person—see the Children and Young People Act
2008, section 12.
252E Meaning of under restraint
For this subdivision, a child or young person is under
restraint if—
(a) the child or young person is under restraint as a result of having
been lawfully arrested or detained; or
(b) the child or young person is under restraint in relation to an offence
and a police officer suspects on reasonable grounds that—
(i) the child or young person committed the offence; or
(ii) the police officer would be authorised under a law in force in the
Territory to arrest the child or young person for the offence; or
(c) the child or young person is in the company of a police officer in
connection with the investigation of an offence or possible offence.
252F Meaning of in the company of a police officer
(1) For section 252E (c), a child or young person is in
the company of a police officer in connection with the investigation of
an offence or possible offence if—
(a) the police officer would not allow the child or young person to leave
if the child or young person wished to do so; or
(b) the child or young person is waiting at a place at the request of a
police officer in connection with the investigation of the offence or possible
offence.
(2) For subsection (1), it does not matter whether or
not—
(a) the police officer believes on reasonable grounds that the child or
young person has committed the offence; or
(b) the child or young person is in lawful custody in relation to the
offence.
(3) However, for section 252E (c), a child or young person is not in
the company of a police officer in connection with the investigation of an
offence or possible offence—
(a) if—
(i) the child or young person is with a police officer by a roadside
(whether or not the child or young person is in a motor vehicle); and
(ii) the police officer is investigating an offence or possible offence,
other than an indictable offence or possible indictable offence, arising out of
the use of a motor vehicle; or
(b) if the child or young person is with a police officer for breath
analysis under the Road Transport (Alcohol and Drugs) Act 1977;
or
(c) if—
(i) the child or young person is with an inspector under the Liquor Act
1975; and
(ii) the inspector is investigating an offence or possible offence against
that Act that the inspector believes on reasonable grounds was not committed by
the child or young person.
(4) In this section:
motor vehicle—see the Road Transport (General) Act
1999, dictionary.
252G Interviewing children and young people about
offences
(1) This section applies if a police officer—
(a) suspects on reasonable grounds that a child or young person may have
committed, or be implicated in the commission of, an offence; or
(b) is holding a child or young person under restraint.
(2) A police officer must not interview the child or young person about an
offence, or cause the child or young person to do anything in relation to the
investigation of an offence, unless—
(a) one of the following people (who is an adult and who the police
officer does not believe on reasonable grounds to be an accomplice of the child
or young person in relation to the offence) is present:
(i) a parent of the child or young person;
(ii) someone else who has daily care responsibility, or long-term care
responsibility, for the child or young person;
(iii) a family member of the child or young person who is acceptable to
the child or young person;
(iv) a lawyer acting for the child or young person;
(v) another suitable person who is acceptable to the child or young
person; or
(b) if the police officer has taken reasonable steps to have a person
mentioned in paragraph (a) present but it was not practicable for such a
person to be present within 2 hours after being asked to be
present—someone else who is not a police officer and has not been involved
with the investigation of the offence.
Example—suitable person—par (a)
(v)
a person trained by the public advocate to attend interviews of children
and young people
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(3) In this section:
accomplice, in relation to an offence, includes a person who
a police officer believes on reasonable grounds to be likely to secrete, lose,
destroy or fabricate evidence relating to the offence.
252H Interviewing children and young people about
offences—urgent circumstances
A police officer may interview a child or young person if—
(a) the police officer—
(i) suspects on reasonable grounds that the child or young person may have
committed, or be implicated in the commission of, an offence; or
(ii) is holding the child or young person under restraint; and
(b) the police officer believes on reasonable grounds that it is necessary
to interview the child or young person without delay to avoid—
(i) a risk of death or serious injury of a person; or
(ii) serious damage to property.
252I Parents etc to be told if children and young
people under restraint
(1) If a police officer takes a child or young person under restraint, the
police officer must promptly take all reasonable steps to tell a responsible
person about the restraint (whether or not the person lives in the
ACT).
(2) In this section:
responsible person means—
(a) a parent of the child or young person; or
(b) if no parent of the child or young person has parental responsibility
for the child or young person—someone else who has daily care
responsibility, or long-term care responsibility, for the child or young
person.
252J Police to summons children and young people
unless ineffective
A police officer must not charge a child or young person with an offence at
a police station unless satisfied that proceeding by summons would not achieve 1
or more of the purposes mentioned in
section 212 (1) (b) (Power of arrest without warrant by
police officers).
252K Parents etc to be told if children and young
people charged
(1) If a child or young person is charged with an offence at a police
station, the person who charged the child or young person must promptly take all
reasonable steps to tell 1 of the following people the relevant information in
relation to the charge (whether or not the person lives in the ACT):
(a) a parent of the child or young person;
(b) if no parent of the child or young person has parental responsibility
for the child or young person—someone else who has daily care
responsibility, or long-term care responsibility, for the child or young
person.
(2) In this section:
relevant information, for a charge, means—
(a) the terms of the charge; and
(b) where the child or young person is; and
(c) when the child or young person will be brought before the Childrens
Court.
[1.18] New
section 300 (2)
insert
(2) To remove any doubt, a reference in this part to the Magistrates Court
includes a reference to the Childrens Court.
substitute
375 Summary disposal of certain
cases
(1) This section applies if a person is before the Magistrates Court
charged with—
(a) a common law offence; or
(b) an offence punishable by imprisonment for a term not
exceeding—
(i) if the offence relates to money or other property—14 years;
or
(ii) in any other case—10 years.
(2) This section also applies if a person is before the Childrens Court
charged with any offence (other than an offence punishable by imprisonment for
life).
(3) The court may proceed in accordance with subsections (4) to (12)
if—
(a) the court considers that it has no jurisdiction, apart from this
section, to hear and determine the charge summarily; and
(b) for a charge that relates to money, or to property other than a motor
vehicle, and is being heard in the Magistrates Court—the court considers
that the amount of the money or the value of the property does not
exceed $10 000.
(4) The court may invite the person (the defendant) to plead
guilty or not guilty to the charge.
(5) If the defendant pleads guilty to the charge, the court may accept or
reject the plea.
(6) The defendant is taken to have pleaded not guilty to the charge
if—
(a) the defendant does not plead to the charge when invited to do so under
subsection (4); or
(b) the court rejects a plea of guilty to the charge under
subsection (5);
(7) The court may hear and determine the charge summarily, and may
sentence or otherwise deal with the defendant according to law,
if—
(a) the defendant pleads or is to be taken to have pleaded not guilty to
the charge; and
(b) the court considers that the case can properly be disposed of
summarily; and
(c) the defendant consents to the case being disposed of
summarily.
(8) The court may sentence or otherwise deal with the defendant
if—
(a) the court accepts a plea of guilty to a charge; and
(b) the court considers that the case can properly be disposed of
summarily; and
(c) the defendant consents to the case being disposed of
summarily.
(9) Before the Magistrates Court decides whether a case can properly be
disposed of summarily, the court must consider the following:
(a) any relevant representations made by the defendant;
(b) any relevant representations made by the prosecutor in the
defendant’s presence;
(c) whether, if the defendant were found guilty or the defendant’s
plea of guilty has been accepted by the court, the court is, under this section,
empowered to impose an adequate penalty, having regard to the circumstances and
the degree of seriousness of the case;
(d) any other circumstances that appear to the court to make it more
appropriate for the case to be dealt with on indictment rather than
summarily.
(10) Before the Childrens Court decides whether a case can properly be
disposed of summarily, the court must consider the following:
(a) relevant representations made by the defendant;
(b) relevant representations made by the prosecutor in the
defendant’s presence;
(c) the facts of the case;
(d) the seriousness of the alleged offence;
(e) the circumstances in which the offence is alleged to have been
committed;
(f) the defendant’s age;
(g) the defendant’s apparent maturity;
(h) the defendant’s apparent mental capacity;
(i) the suitability of the penalties that the court is empowered to
impose;
(j) the difficulty of any question of law that is likely to
arise.
(11) If the court accepts a plea of guilty to a charge under this section,
and—
(a) the court considers that the case cannot properly be disposed of
summarily; or
(b) the defendant has not consented to the case being disposed of
summarily;
the Magistrates Court Act 1930, section 90A (7) to (13)
applies in relation to the defendant as if the court had accepted a plea of
guilty to the charge under that section.
(12) If the court disposes of a case summarily under this section and
convicts the defendant of the offence, the court must not impose a penalty that
exceeds—
(a) a fine of $5 000, imprisonment for 2 years or both; or
(b) if the maximum penalty provided for the offence by the law creating it
is less than the penalty mentioned in paragraph (a)—the maximum
penalty.
(13) In this section:
Magistrates Court does not include the Childrens Court.
[1.20] Dictionary,
new definitions
insert
child, for subdivision 10.7.2 (Preliminary procedures in
relation to children and young people)—see section 252D.
committed an offence, for subdivision 10.7.2 (Preliminary
procedures in relation to children and young people)—see
section 252D.
daily care responsibility—see the Children and Young
People Act 2008, section 19.
long-term care responsibility—see the Children and
Young People Act 2008, section 20.
Magistrates Court, for part 13—see section
300.
under restraint, for subdivision 10.7.2 (Preliminary
procedures in relation to children and young people)—see section
252D.
young person, for subdivision 10.7.2 (Preliminary procedures
in relation to children and young people)—see section 252D.
Part
1.4 Crimes (Sentence Administration)
Act 2005
after
offender
insert
(other than a young offender)
after
offender
insert
(other than a young offender)
[1.23] New
section 102 (4)
insert
(4) This section does not apply in relation to a young offender.
Note For young offenders, see s 320F (Young offenders—breach
of good behaviour obligations).
[1.24] Section
172 (1) (b)
omit
or a young offender
omit
[1.26] Section
213, definition of registered victim
substitute
registered victim—
(a) in relation to an offence by an offender (other than a young
offender)—means a victim of the offender about whom information is entered
in the register kept under section 215; and
(b) in relation to an offence by a young offender—means a victim of
the young offender about whom information is entered in the register kept under
section 215A.
[1.27] Sections
215 and 216
substitute
215 Victims register—offenders other than young
offenders
(1) The chief executive must maintain a register of victims of
offenders.
(2) The chief executive must enter in the register information about a
victim of an offender that the victim, or someone acting for the victim, asks
the chief executive to enter in the register.
(3) As soon as practicable after entering the victim’s information
in the register, the chief executive must give the victim information, orally or
in writing, about the following:
(a) the role of the board;
(b) the rights of registered victims under section 216 to information
about offenders who are sentenced;
(c) the role of victims under chapter 7 (Parole) and part 13.1
(Release on licence) in relation to the release of an offender from imprisonment
under a parole order or licence.
(4) If the victim is a child under 15 years old, the chief executive may
give the information to a person who has parental responsibility for the victim
under the Children and Young People Act 2008.
(5) Subsection (4) does not limit the cases in which the chief executive
may give information to a person acting for a victim.
(6) In this section:
offender does not include a young offender.
215A Victims register—young
offenders
(1) The chief executive must maintain a register of victims of young
offenders.
(2) The chief executive must enter in the register information about a
victim of a young offender that the victim, or someone acting for the victim,
asks the chief executive to enter in the register.
(3) As soon as practicable after entering the victim’s information
in the register, the chief executive must give the victim information, orally or
in writing, about the rights of registered victims under section 216A to
information about young offenders who are sentenced.
(4) If the victim is a child under 15 years old, the chief executive may
give the information to a person who has parental responsibility for the victim
under the Children and Young People Act 2008.
(5) Subsection (4) does not limit the cases in which the chief executive
may give information to a person acting for a victim.
(6) In this section:
chief executive means the chief executive responsible for the
Children and Young People Act 2008.
216 Disclosures to registered victims—offenders
other than young offenders
(1) If an offender has been sentenced, the chief executive may disclose
information about the offender to a
registered victim of the offender if
satisfied the disclosure is appropriate in the circumstances.
Examples—disclosures
1 any non-association order or place restriction order that applies to the
offender
2 if the offender is subject to periodic detention—the
offender’s periodic detention period, reporting place and reporting
time
3 if the offender is under a good behaviour order—the place where the
offender may do community service work or attend a rehabilitation
program
4 if the offender is serving a sentence of imprisonment by full-time
detention—
• the correctional centre where the offender is detained;
• the offender’s classification in detention;
• the transfer of the offender between correctional centres,
including NSW correctional centres;
• the offender’s parole eligibility date;
• any unescorted leave given to the offender under the Corrections
Management Act 2007;
• the death or escape of, or any other exceptional event relating to,
the offender.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) If the victim is a child under 15 years old, the chief executive may
give the information to a person who has parental responsibility for the victim
under the Children and Young People Act 2008.
Note The Crimes (Sentencing) Act 2005, s 136 (Information
exchanges between criminal justice entities) also deals with information about a
victim of an offence.
(3) Subsection (2) does not limit the cases in which the chief executive
may give information to a person acting for a victim.
(4) In this section:
offender does not include a young offender.
216A Disclosures to registered victims—young
offenders
(1) If a young offender has been sentenced, the chief executive may
disclose information about the young offender to a
registered victim of the young offender if
satisfied the disclosure is appropriate in the circumstances.
Examples—disclosures
1 any non-association order or place restriction order that applies to the
young offender
2 if the young offender is under a good behaviour order—the place
where the young offender may do community service work or attend a
rehabilitation program
3 if the young offender is to be released from imprisonment—when and
where the young offender will be released
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
(2) However, the chief executive must not disclose identifying information
for the young offender unless the offence was a personal violence offence and
the chief executive believes that the victim, or a family member of the victim,
may come into contact with the young offender.
Examples
1 the victim and young offender live in the same neighbourhood and may see
each other at the local shopping centre
2 the victim and young offender may be enrolled at the same
school
(3) If the victim is a child under 15 years old, the chief executive may
give the information to a person who has parental responsibility for the victim
under the Children and Young People Act 2008.
Note The Crimes (Sentencing) Act 2005, s 136 (Information
exchanges between criminal justice entities) also deals with information about a
victim of an offence.
(4) Subsection (3) does not limit the cases in which the chief executive
may give information to a person acting for a victim.
(5) In this section:
chief executive means the chief executive responsible for the
Children and Young People Act 2008.
domestic violence offence—see the Domestic Violence
and Protection Orders Act 2001, section 9 (2).
personal violence offence means—
(a) an offence that involves causing harm, or threatening to cause harm,
to anyone; or
(b) a domestic violence offence.
[1.28] Section
314A, new dot point
insert
• the Children and Young People Act 2008
insert
Chapter 14A Sentence
administration—young offenders
Part 14A.1 General
320A Purpose—ch 14A
(1) The purpose of this chapter is to set out particular provisions that
apply to administration of sentences of young offenders.
(2) Except as provided in this chapter or otherwise in this Act, this Act
applies to young offenders in the same way as it applies to other
offenders.
Note See dict, def offender (it includes a young
offender).
320B Youth justice principles to be
considered
(1) An entity exercising a function under this Act must consider the youth
justice principles when dealing with a young offender.
(2) In this section:
youth justice principles—see the Children and Young
People Act 2008, section 94.
320C Young offenders—references to correctional
centre etc
(1) A reference in this Act to a correctional centre is, in relation to a
sentence of imprisonment of a young offender, a reference to a detention place
under the Children and Young People Act 2008.
(2) A reference in this Act to a corrections officer is, in relation to a
young offender, a reference to a youth detention officer under the Children
and Young People Act 2008.
(3) A reference in this Act to the Corrections Management Act 2007
is, in relation to a young offender in detention under the Children and Young
People Act 2008, a reference to that Act.
320D Young offenders—references to chief
executive
A reference in this Act to the chief executive is, in relation to a
function to be exercised in relation to a young offender, a reference to the
chief executive responsible for the Children and Young People Act
2008.
320E Young offenders—administration of
community-based sentences
(1) This section applies to a young offender who is serving a
community-based sentence and becomes an adult.
(2) The chief executive responsible for this Act and the chief executive
responsible for the Children and Young People Act 2008 must decide which
of them is to be the responsible chief executive for matters relating to the
sentence and the young offender under this Act.
320F Young offenders—breach of good behaviour
obligations
(1) If an authorised person believes on reasonable grounds that a young
offender has breached any of the young offender’s good behaviour
obligations, the authorised person may report the belief to the sentencing
court.
(2) The report must be—
(a) in writing; and
(b) accompanied by a copy of a written record in support of the authorised
person’s belief.
(3) In this section:
authorised person means an authorised person under the
Children and Young People Act 2008.
320G Sentencing court to deal with
breaches
(1) This section applies if—
(a) a court imposed a sentence on a person as a young offender;
and
(b) the person is required to be dealt with by a court for a breach in
relation to the sentence.
(2) The breach must be dealt with by the court that imposed the sentence,
whether or not the person is still under 18 years old.
320H Young
offenders—transfer
Chapter 11 (Transfer of prisoners) does not apply to a young offender who
is subject to an ACT sentence of imprisonment unless the young offender is
imprisoned in a correctional centre.
320I Young offenders—transfer of
community-based sentences
Chapter 12 (Transfer of community-based sentences) does not apply to a
young offender who is under 18 years old (see section 262 (1)).
Part 14A.2 Young
offenders—accommodation orders
320J Accommodation orders—contraventions
A young offender in relation to whom an accommodation order is in force
contravenes the order if the young offender contravenes the reasonable lawful
directions of—
(a) if the order is to live at a place—the person in charge of the
place; or
(b) if the order is to live with a person—the person.
320K Accommodation orders—resentencing for
breach
(1) This section applies if a young offender breaches an accommodation
order, or a condition of an accommodation order, in force for the young
offender.
(2) The court may resentence the young offender for the offence in
relation to which the accommodation order was made.
(3) In resentencing the young offender, the court must take into account
the following (in addition to any other matters the court considers should be
taken into account):
(a) the fact that the accommodation order was made;
(b) anything done under the order;
(c) any other order made for the offence for which the accommodation order
was made, and anything done under that other order.
(4) In resentencing the young offender, the court must not impose a
penalty that, when taken together with a penalty previously imposed for the
offence for which the accommodation order was made, is greater than the maximum
penalty the court could have imposed for that offence.
[1.30] Dictionary,
new definitions
insert
accommodation order—see the Crimes (Sentencing) Act
2005, section 133V.
chief executive (CYP) means the chief executive responsible
for the Children and Young People Act 2008.
[1.31] Dictionary,
definition of offender, paragraph (a)
substitute
(a) means a person convicted or found guilty of an offence by a court, and
includes a young offender; but
[1.32] Dictionary,
definition of victims register
omit
[1.33] Dictionary,
new definition of young offender
insert
young offender means a person who—
(a) has been convicted or found guilty of an offence by a court;
and
(b) was under 18 years old when the offence was committed.
Part
1.5 Crimes (Sentencing) Act
2005
[1.34] Section
7 (2), new note
insert
Note However, see s 133C in relation to the sentencing of a young
offender.
[1.35] Section
8, definition of offender, paragraph (a)
substitute
(a) means a person convicted or found guilty of an offence by a court, and
includes a young offender; but
[1.36] Section
9, note 1, 1st dot point
substitute
• imprisonment served by full-time detention at a correctional centre
or detention place (see s 10, ch 5 and s 133H)
[1.37] Section
9, note 1, new dot point
insert
• accommodation order (young offenders only) (see pt 8A.3).
[1.38] Section
10 (2), new note 2
insert
Note 2 See s 133G for additional matters that apply in sentencing a
young offender to imprisonment.
[1.39] Section
10 (3), note
substitute
Note 1 For a young offender who is under 21 years old when the
sentence is imposed, see s 133H.
Note 2 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
[1.40] Section
12 (4), new note 2
insert
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.41] Section
13 (3) (a), new note
insert
Note This paragraph does not apply to a young offender (see s
133M).
[1.42] Section
13 (3), note 2
substitute
Note 2 See s 133M for additional conditions available for young
offenders (education and training conditions and supervision
conditions).
Note 3 An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
[1.43] Section
14 (6), new note 2
insert
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.44] Section
16 (4), new note 2
insert
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.45] Section
17 (5), new note 2
insert
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.46] Section
23 (1), new note
insert
Note See s 133I for an additional consideration that applies in
sentencing a young offender.
[1.47] Section
25 (2), new note
insert
Note For a young offender who is under 18 years old, the notice and
order must also be given to a parent or person with parental responsibility (see
s 133J).
[1.48] Section
29 (1) (a), note
substitute
Note A sentence of imprisonment must be served by full-time
detention at a correctional centre or detention place unless the court otherwise
orders, or the offender is released from detention under this Act or another
territory law (see s 10 (3) and s 133H).
[1.49] Section
29 (1), example 2, 1st dot point
omit
(ie full-time detention at a correctional centre)
[1.50] Section
31 (c), example, 1st dot point
omit
(ie full-time detention at a correctional centre)
[1.51] Section
33 (1), new note
insert
Note See s 133D for additional considerations that apply in
sentencing a young offender.
[1.52] Section
40A, new note
insert
Note See s 133E for additional pre-sentence report matters for young
offenders.
[1.53] New
section 41 (7)
insert
(7) In this section:
chief executive means—
(a) for a report about a young offender—the chief executive (CYP);
and
(b) for any other report—the chief executive responsible for this
Act.
[1.54] New
section 43 (1) (b) (iiia)
insert
(iiia) for a report for a young offender—a parent or anyone else who
has parental responsibility for the young offender under the Children and
Young People Act 2008;
[1.55] New
section 43 (1A)
insert
(1A) However, an assessor may make a request under
subsection (1) (b) (iiia) in relation to a young offender who is
an adult only with the young offender’s consent.
[1.56] Section
64 (3), definition of excluded sentence of imprisonment, new
paragraph (f)
insert
(f) a sentence of imprisonment imposed on a young offender.
[1.57] New
section 77 (1A)
insert
(1A) The court must not set a periodic detention period for a young
offender unless the periodic detention is to be served when the young offender
is an adult.
[1.58] Section
82 (1) (c)
after
correctional centre
insert
or detention place
[1.59] Section
84 (1), note 2
substitute
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
Note 3 If the order is part of a combination sentence, a single
notice may be given for the sentences (see Legislation Act, s 49).
[1.60] New
section 84 (5)
insert
(5) In this section:
chief executive means—
(a) for an order made for a young offender—the chief executive
(CYP); and
(b) for any other order—the chief executive responsible for this
Act.
[1.61] Section
85, note 1
substitute
Note 1 The number of hours that may be required to be performed for
a community service condition is at least 20 hours and not more than
500 hours or, for a young offender, not more than 200 hours (see s 91
and s 133L).
[1.62] Section
91 (1), new note
insert
Note For a young offender, the maximum is 200 hours (see
s 133L).
[1.63] Section
92 (3), new note
insert
Note For a young offender, the maximum is 200 hours (see
s 133L).
[1.64] Section
103 (1), new note 2
insert
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.65] New
section 103 (4)
insert
(4) In this section:
chief executive means—
(a) for an order made for a young offender—the chief executive
(CYP); and
(b) for any other order—the chief executive responsible for this
Act.
[1.66] Section
113 (1), note
omit
[1.67] Section
113 (2), new notes
insert
Note 1 If the order is part of a combination sentence, a single
notice may be given for the sentences (see Legislation Act, s 49).
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.68] Section
121 (2), note
substitute
Note 1 The offender must also be given written notice of any bail
conditions (see Bail Act 1992, s 34).
Note 2 For a young offender who is under 18 years old, the notice
and order must also be given to a parent or person with parental responsibility
(see s 133J).
[1.69] New
section 126 (5)
insert
(5) In this section:
chief executive means—
(a) if the offender is under 18 years old when the application is
made—the chief executive (CYP); and
(b) in any other case—the chief executive responsible for this Act.
[1.70] New
section 127 (3)
insert
(3) In this section:
chief executive means—
(a) if the offender is under 18 years old when the notice is
given—the chief executive (CYP); and
(b) in any other case—the chief executive responsible for this Act.
[1.71] Section
129 (5), new note
insert
Note For a young offender who is under 18 years old, the notice and
order must also be given to a parent or person with parental responsibility (see
s 133J).
[1.72] New
section 129 (7)
insert
(7) In this section:
chief executive means—
(a) if the offender is under 18 years old when the amendment order is
made—the chief executive (CYP); and
(b) in any other case—the chief executive responsible for this Act.
[1.73] Section
130 (4), new note
insert
Note For a young offender who is under 18 years old, the notice and
order must also be given to a parent or person with parental responsibility (see
s 133J).
[1.74] New
section 130 (6)
insert
(6) In this section:
chief executive means—
(a) if the offender is under 18 years old when the cancellation order is
made—the chief executive (CYP); and
(b) in any other case—the chief executive responsible for this Act.
insert
Chapter 8A Sentencing young
offenders
Part 8A.1 General
133A Purpose—ch 8A
(1) The purpose of this chapter is to set out particular provisions that
apply to the sentencing of young offenders.
(2) Except as provided in this chapter or otherwise in this Act, this Act
applies to young offenders in the same way as it applies to other
offenders.
133B Meaning of young
offender—Act
In this Act:
young offender means a person who—
(a) has been convicted or found guilty of an offence by a court;
and
(b) was under 18 years old when the offence was committed.
133C Young offenders—purposes of
sentencing
(1) Despite section 7 (2), in sentencing a young offender, a court
must consider the purpose of promoting the rehabilitation of the young offender
and may give more weight to that purpose than it gives to any of the other
purposes stated in section 7 (1).
(2) Also, in sentencing a young offender, a court must have particular
regard to the common law principle of individualised justice.
133D Young
offenders—sentencing—additional relevant
considerations
(1) In deciding how a young offender should be sentenced (if at all) for
an offence, a court must consider the following matters:
(a) the young offender’s culpability for the offence having regard
to his or her maturity;
(b) the young offender’s state of development;
(c) the past and present family circumstances of the young
offender.
(2) This section applies in addition to section 33
(Sentencing—relevant considerations).
133E Young offenders—pre-sentence report
matters
(1) Each of the following is a pre-sentence report matter in
relation to a young offender:
(a) the young offender’s culpability for the offence having regard
to his or her maturity;
(b) the young offender’s state of development;
(c) the past and present family circumstances of the young
offender.
(2) This section applies in addition to section 40A (Pre-sentence report
matters).
133F Young offenders—chief executive may give
court information about availability of resources
The chief executive (CYP) may give the court information about the
availability of resources that would be needed to give effect to an order the
court may make in relation to a young offender under this Act.
133G Young offenders—sentences of
imprisonment
(1) This section applies if a court is sentencing a young offender to
imprisonment under section 10.
Note Section 10 allows a court to sentence an offender to
imprisonment if satisfied that no other penalty is appropriate.
(2) The sentence of imprisonment must be a last resort and for the
shortest appropriate term.
(3) The court must consider making a combination sentence consisting
of—
(a) the sentence of imprisonment; and
(b) a good behaviour order with a supervision condition.
Note There is no provision for the setting of a nonparole period for
a sentence of imprisonment imposed on a young offender (see s 64 (3), def
excluded sentence of imprisonment).
(4) The court must not sentence the young offender to imprisonment for
life.
133H Young offenders—imprisonment to be at
detention place
(1) This section applies (instead of section 10 (3)) if a court
sentences a young offender to imprisonment and the young offender is under
21 years old when the sentence is imposed.
(2) The sentence must be served by full-time detention at a detention
place unless the young offender is—
(a) released from full-time detention under this Act or another territory
law; or
(b) transferred to a correctional centre under the Children and Young
People Act 2008.
133I Young offenders—non-association and place
restriction orders
A court must not make a non-association order or place restriction order
for a young offender unless satisfied that the order would not—
(a) interfere with the young offender’s access to appropriate
education or training; or
(b) disproportionately interfere with the young offender’s access to
public transport or accommodation.
Note Pt 3.4 makes provision for non-association orders and place
restriction orders for offenders.
133J Young offenders—notice of orders to parent
etc
(1) This section applies if written notice of an order and a copy of the
order is required to be given to a young offender under any of the
following:
(a) section 12 (4) (Suspended sentences);
(b) section 14 (6) (Fines—orders to pay);
(c) section 16 (4) (Driver licence disqualification
orders—motor vehicle theft);
(d) section 17 (5) (Non-conviction orders—general);
(e) section 25 (2) (Non-association and place restriction
orders—explanation and official notice);
(f) section 84 (1) (Imprisonment—official notice of
sentence);
(g) section 103 (1) (Good behaviour orders—official notice of
order);
(h) section 113 (2) (Reparation orders—official notice of
order);
(i) section 121 (2) (Deferred sentence orders—explanation and
official notice of effect);
(j) section 129 (5) (Deferred sentence orders—when amendments
take effect);
(k) section 130 (4) (Deferred sentence orders—when cancellation
takes effect).
(2) If the young offender is under 18 years old, the court must ensure
that the notice and a copy of the order is also given to a parent of the young
offender and anyone else who has parental responsibility for the young offender
under the Children and Young People Act 2008.
133K Young offenders—references to corrections
officer
A reference in this Act to a corrections officer is, in relation to a young
offender, a reference to a youth detention officer under the Children and
Young People Act 2008.
Part 8A.2 Young offenders—good
behaviour orders
Division 8A.2.1 Young offenders—good
behaviour orders generally
133L Young offenders—community
service—hours to be performed
(1) The number of hours of community service work required to be performed
for a community service condition in a good behaviour order for a young
offender—
(a) must be at least 20 hours and not more than 200 hours; and
(b) must not interfere with the young offender’s access to
appropriate education or training.
(2) The period during which the community service work is required to be
completed under the community service condition must be not longer than 12
months.
(3) Section 92 (3) (Community service—concurrent and
consecutive orders) applies in relation to a young offender as if the reference
to 500 hours were a reference to 200 hours.
133M Young offenders—good behaviour
orders—conditions
(1) A good behaviour order for a young offender must not include a
condition mentioned in section 13 (3) (a) (which is about giving
security for compliance with an order).
(2) In addition to the conditions mentioned in section
13 (3) (b) to (f), a good behaviour order for a young offender may
include—
(a) an education and training condition; and
Note An education and training condition
must not be included in the order unless the young offender is convicted of the
offence (see s 133M).
(b) a supervision condition.
Division 8A.2.2 Good behaviour
orders—education and training conditions
133N Meaning of education and training
condition—Act
In this Act:
education and training condition, of a good behaviour order
for a young offender, means a condition included in the order that the young
offender undertake education or training.
133O Application—div
8A.2.2
This division applies if a court is considering whether to include an
education and training condition in a good behaviour order for a young
offender.
133P Education and training
conditions—convicted young offenders only
A good behaviour order cannot include an education and training condition
unless the young offender has been convicted or found guilty of the offence for
which the order is made.
133Q Education and training
conditions—eligibility
The court must not include an education and training condition in the good
behaviour order unless satisfied that—
(a) education or training of a particular kind is suitable for the young
offender; and
(b) it is appropriate that the young offender undertake education or
training of that kind; and
(c) a place for the young offender in education or training of that kind
is available or will become available within a reasonable time.
133R Education and training
conditions—suitability
(1) In deciding whether to include an education and training condition in
the good behaviour order, the court must consider the following:
(a) any pre-sentence report or relevant sentencing information for the
young offender given to the court;
(b) any medical report about the young offender given to the
court;
(c) any evidence given by the person who prepared a pre-sentence report
for the young offender or who gave relevant sentencing information to the
court;
(d) any evidence given by the chief executive (CYP) about the young
offender.
(2) Subsection (1) does not limit the matters that the court may
consider.
(3) The court may include, or decline to include, an education and
training condition in the good behaviour order for the young offender
despite—
(a) any recommendation in any pre-sentence report, or indication in
relevant sentencing information, about the suitability of the young offender to
serve a sentence (or a part of a sentence) by taking part in education or
training; or
(b) any evidence given by the person who prepared any pre-sentence report
for the young offender or who gave relevant sentencing information to the court;
or
(c) any evidence given by the chief executive (CYP) about the young
offender.
(4) The court must record reasons for its decision to include, or not
include, an education and training condition in the good behaviour order
if—
(a) a pre-sentence report recommends, or relevant sentencing information
indicates, that the young offender is suitable but the court decides not to
include an education and training condition; or
(b) a pre-sentence report recommends, or relevant sentencing information
indicates, that the young offender is not suitable but the court decides to
include an education and training condition.
(5) Failure to comply with subsection (4) does not invalidate the good
behaviour order.
133S Education and training conditions—maximum
period
An education and training condition included in the good behaviour order
must not require the young offender take part in education or training for
longer than 3 years.
133T Education and training conditions—2 or
more good behaviour orders
(1) This section applies if—
(a) a young offender is currently subject to an education and training
condition under a good behaviour order (an existing order);
and
(b) the court makes a further good behaviour order that includes an
education and training condition (a new order).
(2) The court may direct how the new order and the existing order work
together.
(3) However, the new order must not require the young offender to undergo
education or training as stated in the order for more than
3 years.
Division 8A.2.3 Good behaviour
orders—supervision conditions
133U Meaning of supervision
condition—Act
(1) In this Act:
supervision condition, of a good behaviour order for a young
offender, means a condition included in the order that—
(a) requires the young offender to comply with all reasonable directions
given by the chief executive; and
(b) allows the chief executive to require information from entities
directly supervising the young offender.
(2) In this section:
chief executive means—
(a) if the offender is under 18 years old when the direction is given or
the requirement is made—the chief executive (CYP); and
(b) in any other case—the chief executive responsible in accordance
with a decision made under the Crimes (Sentence Administration) Act 2005,
section 320E.
133V Supervision conditions—when
required
(1) A court must include a supervision condition in a good behaviour order
for a young offender if the court has made, or proposes to make, a good
behaviour order that includes—
(a) a community service condition; or
(b) a rehabilitation condition; or
(c) an education and training condition.
(2) Subsection (1) does not limit the circumstances in which the court may
include a supervision condition in a good behaviour order.
133W Supervision conditions—maximum
period
A supervision condition included in the good behaviour order must not
require the young offender to comply with all reasonable directions given by the
chief executive for longer than 3 years.
133X Supervision conditions—2 or more good
behaviour orders
(1) This section applies if—
(a) a young offender is currently subject to a supervision condition under
a good behaviour order (an existing order); and
(b) the court makes a further good behaviour order that includes a
supervision condition (a new order).
(2) The court may direct how the new order and the existing order work
together.
(3) However, the new order must not require the young offender to be
supervised as stated in the order for longer than 3 years.
Part 8A.3 Young
offenders—accommodation orders
133Y Meaning of accommodation
order—Act
(1) In this Act:
accommodation order, in relation to a young offender, means
an order made by a court requiring the young offender to live at the place or
with the person, whether within or outside the ACT—
(a) stated in the order; or
(b) that the chief executive from time to time directs.
(2) In this section:
chief executive means—
(a) if the offender is under 18 years old when the direction is
given—the chief executive (CYP); and
(b) in any other case—the chief executive responsible in accordance
with a decision made under the Crimes (Sentence Administration) Act 2005,
section 320E.
133Z Accommodation orders—convicted young
offenders only
If a young offender has been convicted or found guilty of an offence, the
court may make an accommodation order for the young offender.
133ZA Accommodation
orders—eligibility
The court must not make an accommodation order for a young offender unless
satisfied that—
(a) the order would be suitable for the young offender; and
(b) if the order states that the young offender is to live at a
place—the person in charge of the place agrees to accommodate the young
offender at the place; and
(c) if the order states that the child is to live with a
person—
(i) the person is a suitable person to accommodate the young offender;
and
(ii) the person agrees to the young offender living with the
person.
133ZB Accommodation
orders—suitability
(1) In deciding whether to make an accommodation order for a young
offender, the court must consider the following:
(a) any pre-sentence report or relevant sentencing information for the
young offender given to the court;
(b) any medical report about the young offender given to the
court;
(c) any evidence given by the person who prepared a pre-sentence report
for the young offender or who gave relevant sentencing information to the court;
(d) any evidence given by the chief executive (CYP) about the young
offender.
(2) Subsection (1) does not limit the matters that the court may
consider.
(3) The Court may make, or decline to make, an accommodation order, for a
young offender despite—
(a) any recommendation in any pre-sentence report, or indication in
relevant sentencing information, about the appropriateness of an accommodation
order for the young offender; or
(b) any evidence given by the person who prepared any pre-sentence report
for the young offender or who gave relevant sentencing information to the court;
or
(c) any evidence given by the chief executive (CYP) about the young
offender.
(4) The Court must record reasons for its decision in relation to a young
offender if—
(a) a pre-sentence report recommends, or relevant sentencing information
indicates, that an accommodation order be made for the young offender but the
court does not make an accommodation order; or
(b) a pre-sentence report recommends, or relevant sentencing information
indicates, that an accommodation order not be made for the young offender but
the court makes an accommodation order.
(5) Failure to comply with subsection (4) does not invalidate the
accommodation order.
133ZC Accommodation orders—maximum
period
An accommodation order must not be longer than 3 years.
133ZD Accommodation orders—2 or more
orders
(1) This section applies if—
(a) a young offender is currently subject to an accommodation order (an
existing order); and
(b) the court makes a further accommodation order (a new
order).
(2) The court may direct how the new order and the existing order work
together.
(3) However, the new order must not require the young offender to be
accommodated as stated in the order for longer than 3 years.
[1.76] Section
136 (4), definition of criminal justice entity, paragraph
(c)
substitute
(c) the chief executive responsible for this Act;
(ca) the chief executive (CYP);
[1.77] Dictionary,
new definition of accommodation order
insert
accommodation order—see section 133Y.
[1.78] Dictionary,
definition of at
substitute
at, in relation to a correctional centre or detention place,
includes in the correctional centre or detention place.
[1.79] Dictionary,
new definitions
insert
chief executive (CYP) means the chief executive responsible
for the Children and Young People Act 2008.
detention place means a detention place under the Children
and Young People Act 2008.
education and training condition—see section
133N.
[1.80] Dictionary,
definition of pre-sentence report matter
substitute
pre-sentence report matter—
(a) for part 4.2 (Pre-sentence reports)—see section 40A;
and
(b) for a young offender—see section 133E.
[1.81] Dictionary,
new definitions
insert
supervision condition—see section 133U.
young offender—see section 133B.
Part
1.6 Criminal Code
2002
in division 7.2.3, insert
712A Publishing identifying information about
childrens proceedings
(1) A person commits an offence if the person publishes information that
identifies someone else as a person who is or was a child or young person the
subject of a childrens proceeding.
Maximum penalty: 300 penalty units, imprisonment for 3 years or
both.
(2) Information that identifies someone includes information
that—
(a) discloses the name, address or suburb of the person, or of a family
member of the person; or
(b) would allow the identity of the person as a child or young person the
subject of a childrens proceeding to be worked out.
Example—par (b)
the child’s or young person’s relationship to another
person
Note An example is part of the Act, is
not exhaustive and may extend, but does not limit, the meaning of the provision
in which it appears (see Legislation Act, s 126 and s
132).
(3) This section does not apply if—
(a) the person the subject of the proceeding is an adult and consents to
the publication of the information; or
(b) the person the subject of the proceeding has died and—
(i) the person’s legal personal representative consents to the
publication of the information; or
(ii) the information is published more than 100 years after the
person’s death.
(4) To remove any doubt, this section applies to everyone, including, for
a proceeding under the Children and Young People Act 2008, people
required or entitled to attend the proceeding.
(5) In this section:
child—see the Children and Young People Act
2008, section 11.
childrens proceeding—a child or young person is or was
the subject of a childrens proceeding if—
(a) the child or young person is or was the subject of a proceeding under
the Children and Young People Act 2008; or
(b) any of the following orders is or was in force under that Act for the
child or young person:
(i) a care and protection order;
(ii) an interim care and protection order;
(iii) an appraisal order;
(iv) a therapeutic protection order; or
(v) an interim therapeutic protection order; or
(c) the child or young person is or was the subject of a child concern
report under that Act; or
(d) the child or young person is or was the subject of—
(i) a proceeding under the Children and Young People Act 1999;
or
(ii) an order or report under that Act that corresponds to an order or
report mentioned in paragraph (b) or (c); or
(e) a chief executive has or had parental responsibility for the child or
young person under the Children and Young People Act 2008 or the
Children and Young People Act 1999; or
(f) the child or young person is or was the subject of a criminal
proceeding; or
(g) the child or young person is or was the subject of a proceeding under
the Bail Act 1992.
proceeding includes a proceeding started, or that existed,
before the commencement of this section.
publish means communicate or disseminate information in a way
or to an extent that makes it available to, or likely to come to the notice of,
the public or a section of the public or anyone else not lawfully entitled to
the information.
young person—see the Children and Young People Act
2008, section 12.
Part
1.7 Evidence (Miscellaneous
Provisions) Act 1991
insert
Division 4.8 Proceedings against young
people
81A Exclusion of evidence unlawfully
obtained
(1) This section applies if, in a proceeding in the Childrens Court
against a young person in relation to an offence, the court is satisfied that
evidence tendered to the court was obtained in contravention of, or in
consequence of a contravention of, the Crimes Act 1900, part 10
(Criminal investigation) or the Crimes Act 1914 (Cwlth).
(2) The Childrens Court must refuse to admit the evidence in the
proceeding unless satisfied that—
(a) admission of the evidence is substantially in the public interest in
relation to the administration of criminal justice; and
(b) the public interest would outweigh any prejudice to the rights of a
person, including the young person, that has occurred or is likely to occur as a
result of the contravention or the admission of the evidence.
(3) The matters to which the Childrens Court may have regard in deciding
whether it should admit the evidence include—
(a) the seriousness of the offence to which the evidence relates, the
difficulty of detecting the offender, the need to apprehend the offender and the
need to preserve evidence of the facts; and
(b) the nature and seriousness of the contravention; and
(c) the extent to which the evidence might have been lawfully
obtained.
(4) This section is in addition to, and does not limit, any other law or
rule under which the Childrens Court may refuse to admit evidence.
Part
1.8 Magistrates Court Act
1930
insert
Chapter 4A The Childrens
Court
Part 4A.1 The Childrens
Court
287 Childrens Court
(1) The Magistrates Court is known as the Childrens Court when it is
constituted by the Childrens Court Magistrate exercising the jurisdiction given
under section 288.
(2) The Magistrates Court is also known as the Childrens Court when it is
constituted by—
(a) a magistrate assigned under section 291C (Assignment of other
magistrates for Childrens Court matters) who is exercising the jurisdiction
given under section 288; or
(b) a magistrate acting under section 291D (2) (Completion of
part-heard matters).
(3) The Childrens Court may use the Magistrates Court seal.
288 Jurisdiction of Childrens Court
(1) The Childrens Court has jurisdiction to hear and
decide—
(a) any criminal proceeding against a person in relation to a summary
offence if the person was under 18 years old at the time of the alleged offence;
and
(b) any criminal proceeding against a person in relation to an indictable
offence (other than an offence punishable by imprisonment for life) if the
person was under 18 years old at the time of the alleged offence; and
(c) a proceeding in relation to bail for a child; and
(d) any application or other proceeding under the Children and Young
People Act 2008, including a proceeding transferred to the court under the
Children and Young People Act 2008, chapter 17 (Care and
protection—interstate transfer of orders and proceedings).
(2) Subsection (1) (b) is subject to the Crimes Act 1900,
section 375 (Summary disposal of certain cases).
(3) Subsection (1) (c) is subject to the Bail Act
1992.
289 Proceedings where children jointly charged with
adults
(1) If a child and an adult are jointly charged with an offence,
section 288 (Jurisdiction of Childrens Court) applies to a proceeding
against the child arising out of the charge as if the child had been charged
separately.
(2) Section 288 does not apply to the preliminary examination for an
indictable offence alleged to have been committed jointly by a child and an
adult if a magistrate, having regard to the nature of the alleged offence and
the time and expense involved in carrying out the preliminary examinations
separately, orders that the section does not apply.
(3) To remove any doubt, the Court Procedures Act 2004,
part 7A (Procedural provisions—proceedings involving children or
young people) applies to a proceeding against a child even if the proceeding
arises out of an offence for which the child and an adult were jointly
charged.
290 Chief Magistrate to arrange business of Childrens
Court
(1) The Chief Magistrate is responsible for ensuring the orderly and
prompt discharge of the business of the Childrens Court.
(2) The Chief Magistrate may, subject to appropriate and practicable
consultation with the magistrates, make arrangements about—
(a) the magistrate who is to be the Childrens Court Magistrate;
and
(b) the assignment of a magistrate under—
(i) section 291B (Acting Childrens Court Magistrate); or
(ii) section 291C (Assignment of other magistrates for Childrens
Court matters).
291 Childrens Court Magistrate to hear all matters
(1) The Childrens Court Magistrate is responsible for dealing with all
matters within the jurisdiction of the Childrens Court.
(2) Subsection (1) is subject to—
(a) section 291C (Assignment of other magistrates for Childrens Court
matters); and
(b) section 291D (Completion of part-heard matters).
(2) Also, subsection (1) does not prevent a magistrate other than the
Childrens Court Magistrate from exercising—
(a) a function or power given to a magistrate under a provision of the
Children and Young People Act 2008; or
(b) a power given to a magistrate under a territory law to admit a child
or young person to bail under the Bail Act 1992 or to remand a child
or young person in custody.
Part 4A.2 Childrens Court
Magistrate
291A Childrens Court Magistrate
(1) The Chief Magistrate must declare 1 magistrate to be the Childrens
Court Magistrate for a stated term of not longer than 2 years.
(2) The Chief Magistrate may declare himself or herself to be the
Childrens Court Magistrate.
(3) The Chief Magistrate must not declare a magistrate to be the Childrens
Court Magistrate unless satisfied the magistrate is suitably qualified to be the
Childrens Court Magistrate.
(4) The Chief Magistrate must revoke a declaration under this section if
asked, in writing, by the Childrens Court Magistrate.
(5) A declaration, or revocation, under this section is a notifiable
instrument.
Note A notifiable instrument must be notified under the Legislation
Act.
291B Acting Childrens Court Magistrate
(1) The Chief Magistrate may assign a magistrate to act as Childrens Court
Magistrate only if—
(a) there is no Childrens Court Magistrate; or
(b) the Childrens Court Magistrate—
(i) is absent from duty or from the ACT; or
(ii) cannot exercise the functions of the Childrens Court Magistrate for
another reason.
(2) A magistrate assigned to act as Childrens Court Magistrate is the
Childrens Court Magistrate for this Act and any other Act.
291C Assignment of other magistrates for Childrens
Court matters
(1) The Chief Magistrate may assign another magistrate to deal with a
matter if the Childrens Court Magistrate is unable to deal with the
matter—
(a) without delay that is likely to prejudice the wellbeing of a child or
young person; or
(b) because of a conflict of interest, or a perceived conflict of
interest.
(2) A magistrate may be assigned under subsection (1) (a) only
if the Chief Magistrate is satisfied the assignment is necessary having regard
to—
(a) how the delay is likely to prejudice the child’s or young
person’s wellbeing; and
(b) the principle in the Children and Young People Act 2008,
section 8 that in making a decision under that Act in relation to a
particular child or young person, the decision-maker must regard the best
interests of the child or young person as the paramount consideration;
and
(c) the degree of urgency of the matter to be dealt with by the assigned
magistrate; and
(d) the views and wishes (if any) of the Childrens Court Magistrate on the
proposed assignment.
(3) This section does not create a right in relation to the assignment of
a matter under this section.
(4) Without limiting subsection (3), the decision to assign or not to
assign a matter under this section—
(a) must not be challenged or called into question in any court;
and
(b) is not subject to prohibition, mandamus or injunction in any
court.
(5) This section is in addition to, and does not limit, section 291B
(Acting Childrens Court Magistrate).
291D Completion of part-heard matters
(1) This section applies if—
(a) a magistrate begins to deal with a Childrens Court matter under this
chapter; and
(b) before the matter is finally decided, the magistrate ceases
to—
(i) be the Childrens Court Magistrate; or
(ii) hold an assignment under section 291B or
section 291C.
(2) The magistrate may continue to deal with the matter until it is
finally decided.
Part 4A.3 Criminal
proceedings
291E Procedures for hearing indictable offences
(1) This section applies if—
(a) a child charged with an indictable offence is brought before the
Childrens Court; and
(b) the court—
(i) has no power to hear and decide the charge summarily; or
(ii) has the power to hear and decide the charge summarily, but decides
not to.
(2) The Childrens Court must deal with the charge as if—
(a) the charge were a charge for an indictable offence to which this Act
applied; and
(b) the Childrens Court were the Magistrates Court; and
(c) any necessary changes were made.
291F Childrens Court may adjourn hearings to allow
access to legal advice
(1) This section applies to a charge for an indictable offence against a
child that the Childrens Court is hearing summarily.
(2) The court may, at any time, adjourn the hearing to allow any of the
following people to get legal advice:
(a) the child;
(b) a parent of the child;
(c) someone else who has daily care responsibility, or long-term care
responsibility, for the child.
(3) In this section:
daily care responsibility—see the Children and Young
People Act 2008, section 19.
long-term care responsibility—see the Children and
Young People Act 2008, section 20.
291G Childrens Court may send cases to Supreme Court
for sentencing
(1) This section applies if the Childrens Court convicts a person of an
indictable offence.
(2) The Childrens Court may, by order, commit the person to the Supreme
Court for sentence if satisfied that—
(a) sentence should be passed on the person by the Supreme Court because
of the character and history of the person; or
(b) the sentence that is likely to be appropriate is a sentence the
Childrens Court does not have power to impose.
(3) In deciding whether to make an order under subsection (2) (a),
the Childrens Court must consider any report provided under the Court
Procedures Act 2004, section 74D (Court may order report about young
person).
(4) If the Childrens Court makes an order under subsection (2), the
Supreme Court may deal with the person as if the person had been convicted of
the offence in the Supreme Court.
(see s 2(3))
Note 1 The Legislation Act contains definitions and other provisions
relevant to this Act.
Note 2 For example, the Legislation Act, dict, pt 1, defines the
following terms:
• ACT
• administrative appeals tribunal
• administrative unit
• adult
• chief executive (see s 163)
• chief police officer
• children and young people commissioner
• Childrens Court
• corrections officer
• dentist
• director of corrective services
• disallowable instrument (see s 9)
• doctor
• domestic partner (see s 169 (1))
• entity
• Executive
• function
• human rights commission
• indictable offence (s 190)
• individual
• in relation to
• intersex person (see s 169B)
• judge
• lawyer
• legal aid commission
• magistrate
• mental health tribunal
• midwife
• Minister (see s 162)
• notifiable instrument (see s 10)
• nurse
• ombudsman
• parent
• penalty unit (see s 133)
• police officer
• privacy commissioner
• public advocate
• public employee
• public servant
• State
• statutory office holder
• territory authority
• territory instrumentality
• the Territory
• transgender person (see s 169A (1) and (2))
• working day.
Aboriginal means a person who—
(a) is a descendant of the indigenous inhabitants of Australia;
and
(b) regards himself or herself as an Aboriginal or, if the person is a
child or young person, is regarded as an Aboriginal by a parent or other family
member.
Aboriginal and Torres Strait Islander
organisation means an organisation whose purpose is to represent
the interests of Aboriginal and Torres Strait Islander people.
abuse, of a child or young person—see
section 341.
accredited person—
(a) in relation to a young detainee, for chapter 6 (Criminal
matters—detention places)—see section 136; and
(b) for a child or young person in therapeutic protection,
division 16.3.3—see section 575.
accused detainee, for chapter 8 (Criminal
matters—discipline at detention places)—see section 285.
administrator, for chapter 8 (Criminal
matters—discipline at detention places)—see section 285.
admission, of a young detainee to a detention place, for part
6.4 (Admission to detention places)—see section 154.
affected child, for division 20.4.3 (Childcare service
licences—suspension and cancellation)—see section 758.
allegation report, for chapter 8 (Criminal
matters—discipline at detention places)—see section 292.
annual review report, for a reviewable care and protection
order, for chapter 14 (Care and protection—care and protection orders
)—see section 493.
application, for chapter 19 (Care and
protection—provisions applying to all proceedings under care and
protection chapters)—see section 694.
appraisal order, for the care and protection
chapters—see section 371.
approved research project, for chapter 22 (Research involving
children and young people)—see section 804.
assessment order, for the care and protection
chapters—see section 435.
at risk of abuse or neglect, in the care and protection
chapters—see section 343.
authorised assessor—see section 437.
authorised person—see section 26.
behaviour breach—see section 286.
behaviour management consequence—
(a) for part 8.3 (Dealing with minor behaviour breaches)—see section
297; and
(b) for part 8.4 (Disciplinary action—behaviour breach
charged)—see section 317.
behaviour management framework, for chapter 8 (Criminal
matters—discipline at detention places)—see section 285.
body includes an agency or organisation.
body search—
(a) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(b) for part 16.3 (Children and young people in therapeutic
protection)—see section 587.
cancellation notice, for chapter 20 (Childcare
services)—see section 765.
care and protection appraisal—see
section 365.
care and protection assessment, for the care and protection
chapters—see section 366.
care and protection chapters—see section 335.
care and protection order—see
section 421.
care and protection principles—see section
349.
care entities, for division 15.4.3 (Information to be kept by
foster carers and residential care services)—see section 525.
care plan—see section 454.
case management plan, for chapter 6 (Criminal
matters—detention places)—see section 136.
charge, for chapter 8 (Criminal matters—discipline at
detention places)—see section 285.
charge notice, for chapter 8 (Criminal
matters—discipline at detention places)—see
section 295.
child—see section 11.
childcare centre—see section 732.
childcare service—see section 731.
childcare service licence, for chapter 20 (Childcare
services)—see section 727.
childcare services standards—see section 886 (2)
(e).
childcare worker, for chapter 20 (Childcare
services)—see section 727.
child concern report, for part 11.1 (Care and
protection—reporting abuse and neglect)—see section 352.
children and young people employment standards—see
section 886 (2) (f).
child welfare law, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 639.
child welfare order, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 637.
child welfare proceeding, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 638.
compliance notice, for chapter 20 (Childcare
services)—see section 759.
compliance suspension notice, for chapter 20 (Childcare
services)—see section 760.
conduct—see the Criminal Code, section 13.
confidential report—see section 875.
connected, for chapter 23 (Enforcement)—see
section 811.
contact—see section 347.
contact provision, in a care and protection chapter—see
section 484.
contrary to the best interests of a child or young person,
for chapter 21 (Employment of children and young people)—see
section 779.
controlled drug—see the Criminal Code,
section 600.
controlling person, for a childcare service or proposed
childcare service, for chapter 20 (Childcare services)—see section
735.
court, for part 25.4 (Courts and investigative
entities)—see section 863.
court cell means a cell (however described) for the detention
of a person at a court.
criminal matters chapters—see section 91.
daily care responsibility—see section 19.
dangerous thing, for part 16.3 (Children and young people in
therapeutic protection)—see section 589.
decision-maker includes any court exercising jurisdiction
under this Act.
detention place means a place declared to be a detention
place under section 141.
disciplinary action, for chapter 8 (Criminal
matters—discipline at detention places)—see section 316.
divulge, for chapter 25 (Information secrecy and
sharing)—see section 841.
domestic violence, for division 14.3.5 (Orders under Domestic
Violence and Protection Orders Act)—see section 457.
drug, for Part 6.7 (Alcohol and drug testing)—see
section 234.
drug of dependence—see the Drugs of Dependence Act
1989, section 3 (1).
drug testing standards—see section 886 (2)
(b).
drug use provision, in a care and protection order, for the
care and protection chapters—see section 487.
DVPO final protection order, for division 14.3.5 (Orders
under Domestic Violence and Protection Orders Act)—see
section 457.
DVPO interim protection order, for division 14.3.5 (Orders
under Domestic Violence and Protection Orders Act)—see
section 457.
DVPO protection order, for division 14.3.5 (Orders under
Domestic Violence and Protection Orders Act)—see
section 457.
educational institution, for chapter 21 (Employment of
children and young people)—see section 779.
emergency action—see section 404.
emergency action release order—see section
415.
employment, for chapter 21 (Employment of children and young
people)—see section 780.
employment conditions notice, for chapter 21 (Employment of
children and young people)—see section 789.
employment prohibition notice, for chapter 21 (Employment of
children and young people)—see section 787.
enduring parental responsibility provision, in the care and
protection chapters—see section 480.
engage in conduct—see the Criminal Code, section
13.
entitled child or young person, for part 2.3 (Official
visitors)—see section 37.
escort officer means—
(a) a police officer; or
(b) a corrections officer; or
(c) a youth detention officer.
ethics committee, for chapter 22 (Research involving children
and young people)—see section 804.
external reviewer—
(a) for division 6.6.3 (Segregation)—see section 203;
and
(b) for division 8.4.3 (External review of internal review
decisions)—see section 307.
family day care scheme—see section 733.
family group conference—see section 75.
family group conference agreement—see
section 76.
family group conference facilitator—see
section 78.
family group conference outcome report, for chapter 3 (Family
group conferences)—see section 88.
family group conference standards—see section 886
(2) (a).
family member, of a person—see section 13.
former caregiver, of a child or young person, for the care
and protection chapters—see section 346.
foster carer, for a child or young person—see
section 509.
foster care service—see section 514.
frisk search—
(a) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(b) for part 16.3 (Children and young people in therapeutic
protection)—see section 585.
general parental authority—see section 514.
government agency for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 636.
harmful conduct, engaged in by a child or young
person—see section 532.
health care assessment means an assessment of the
child’s or young person’s physical or mental wellbeing (including
admission to hospital).
health care treatment means treatment of an illness,
disability, disorder or condition by a health professional.
health facility means a hospital or other facility where
health services are provided.
health professional means a health professional registered
under the Health Professionals Act 2004 or someone who is a health
professional registered under a corresponding law of a local jurisdiction within
the meaning of that Act.
health segregation direction, for division 6.6.3
(Segregation)—see section 203.
health service—see the Health Professionals Act
2004, section 15.
hearing, for a review, for chapter 8 (Criminal
matters—discipline at detention places)—see section 285.
high risk employment, for part 21.4 (Employment of children
and young people under school-leaving age)—see section 793.
information, for chapter 25 (Information secrecy and
sharing)—see section 841.
information holder, for chapter 25 (Information secrecy and
sharing)—see section 842.
information sharing entity, for part 25.3 (Sharing protected
information)—see section 858.
information sharing standards—see section 886 (2)
(i).
in need of care and protection—see
section 344.
in need of emergency care and protection, for the care and
protection chapters—see section 402.
in need of emergency therapeutic protection—see section
403.
intention to cancel notice, for chapter 20 (Childcare
services)—see section 763.
interim care and protection order, for chapter 14 (Care and
protection—care and protection orders)—see
section 432.
interim child welfare order, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 660.
interim therapeutic protection order—see section
542.
interstate care and protection report—see section
844 (2), definition of interstate care and protection
information, paragraph (a).
interstate child welfare order—see section
665.
interstate law, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 640.
interstate leave permit—see section 241.
interstate officer, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 641.
interstate proceedings transfer order—see section
671.
in therapeutic protection—see section 571.
investigative entity means an entity with power to require
the production of documents or the answering of questions including, for
example, the chief police officer, the human rights commission, the public
advocate and the ombudsman.
Note An example is part of the Act, is not exhaustive and may
extend, but does not limit, the meaning of the provision in which it appears
(see Legislation Act, s 126 and s 132).
investigator, for part 8.2 (Responding to behaviour
breaches)—see section 290.
kinship carer, for a child or young person—see
section 508.
licensed childcare service, for chapter 20 (Childcare
services)—see section 727.
licensed proprietor, of a childcare service, for chapter 20
(Childcare services)—see section 727.
light work, for part 21.4 (Employment of children and young
people under school-leaving age)—see section 792.
long-term care responsibility—see section 20.
long-term parental responsibility provision, for the care and
protection chapters—see section 478.
mail means postal mail.
mandatory report—see section 355.
mental dysfunction—see section 529.
mental health order—see the Mental Health (Treatment
and Care) Act 1994, dictionary.
mental health tribunal provision—see section
490.
mental illness—see section 529.
Minister of a State, for part 5.2 (Interstate
transfers)—see section 113.
minor behaviour breach, for chapter 8 (Criminal
matters—discipline at detention places)—see
section 287.
neglect—see section 342.
nominated person, for a young detainee—see section
184 (2) (n).
non-treating doctor—
(a) for chapter 6 (Criminal matters—detention places)—see
section 136; and
(b) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(c) for chapter 16 (Care and protection—therapeutic protection of
children and young people)—see section 529.
non-treating nurse—
(a) for part 6.7 (Alcohol and drug testing)—see section 234;
and
(b) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(c) for chapter 16 (Care and protection—therapeutic protection of
children and young people)—see section 529.
non-treating health professional—
(a) for the criminal matters chapters—see section 98; and
(b) for chapter 16 (Care and protection—therapeutic protection of
children and young people)—see section 529.
occupier, for chapter 23 (Enforcement)—see
section 811.
offence—
(a) includes an offence against a Commonwealth law; and
(b) for chapter 23 (Enforcement)—see section 811.
official visitor means a person appointed as an official
visitor under section 38.
operating entity, for a therapeutic protection place or place
of care, means—
(a) if the Territory operates the place—the chief executive;
or
(b) in any other case—the entity that operates the place.
operating procedure, for chapter 6 (Criminal
matters—detention places) and chapter 7 (Criminal matters—search and
seizure at detention places) means an operating procedure made by the chief
executive under section 142.
order, for chapter 24 (Appeals and review), includes a
decision.
ordinary search—
(a) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(b) for part 16.3 (Children and young people in therapeutic
protection)—see section 586.
out-of-home carer—see section 507.
out-of-home carer authorisation—see section
514.
out-of-home care standards—see section 886 (2)
(c).
owner, of a thing—
(a) for part 7.9 (Seizing property)—see section 278; and
(b) for division 16.3.6 (Seizing dangerous things)—see
section 619.
paediatrician means a doctor who is registered under the
Health Professionals Regulation 2004 in the specialist area of paediatric
medicine.
parental responsibility—see division 1.3.2.
parental responsibility provision, for the care and
protection chapters—see section 473.
participant, for chapter 3 (Family group
conferences)—see section 73.
participating state—for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 636.
parties, for chapter 3 (Family group conferences)—see
section 73.
party—
(a) for part 12.3 (Voluntary agreement to share parental responsibility
with chief executive)—see section 395; and
(b) for an application, for the care and protection chapters—see
section 699.
personal information, about a child or young person, for
division 15.4.3 (Information to be kept by foster carers and residential
care services)—see section 525.
person responsible, for a young offender, for part 5.2
(Interstate transfers)—see section 113.
place includes premises.
placement, for a child or young person, for division
19.4.5—see section 525.
place of care means a place approved as a place of care under
section 524.
police cell means a cell (however described) for the
detention of a person at a police station.
positive test sample, for part 6.7 (Alcohol and
drug testing)—see section 235.
possession, of a thing, includes the following:
(a) receiving or obtaining possession of the thing;
(b) having control over the disposition of the thing (whether or not
having custody of the thing);
(c) having joint possession of the thing.
prenatal report—see section 361.
privilege, for chapter 8 (Criminal matters—discipline
at detention places)—see section 288.
privileged, in relation to material, for chapter 7 (Criminal
matters—search and seizure at detention places)—see section
245.
produce, for part 25.4 (Courts and investigative
entities)—see section 863.
prohibited area, for a criminal matters chapter—see
section 146.
prohibited thing—
(a) for chapter 6 (Criminal matters—detention places)—see
section 136; and
(b) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245.
proposed controlling person, for a childcare service, for
chapter 20 (Childcare services)—see section 727.
proposed proprietor, for a childcare service, for chapter 20
(Childcare services)—see section 727.
proprietor, of a childcare service, for chapter 20 (Childcare
services)—see section 734.
protected information—see section 843.
protection order—see the Domestic Violence and
Protection Orders Act 2001, dictionary.
provision, in a care and protection order, for chapter 14
(Care and protection—care and protection orders)—see section
420.
psychiatrist means a doctor who is registered under the
Health Professionals Regulation 2004 in the specialist area of
psychiatry.
receiving State, for part 5.2 (Interstate
transfers)—see section 113.
registered, for a family group conference, for Chapter 12
(Care and protection—voluntary agreements to transfer or share parental
responsibility)—see section 388.
register of young detainees, for chapter 6 (Criminal
matters—detention places)—see section 136.
relevant conference participant, for a family group
conference about a child or young person—see section 73.
relevant presiding officer, for division 8.4.4 (Disciplinary
action generally)—see section 315.
reporting and investigation procedures means the procedures
made by the chief executive under section 293.
representative, for a child or young person, means a lawyer
or other person representing the child or young person, but does not include a
child or young person who represents himself or herself.
requirement notice, for part 2.4 (Suitable entities for
purposes under Act)—see section 68.
researcher, for a research project, for chapter 22 (Research
involving children and young people)—see section 804.
research project, for a research project, for chapter 22
(Research involving children and young people)—see section 805.
research standards—see section 886 (2)
(h).
residence provision, for the care and protection
chapters—see section 483.
residential care service—see section 510.
responsible person, for a childcare service, for
chapter 20 (Childcare services)—see section 737.
review, for chapter 8 (Criminal matters—discipline at
detention places)—see section 285.
reviewable care and protection order, for chapter 14 (Care
and protection—care and protection orders)—see
section 492.
review officer—
(a) for division 8.4.2 (Internal review)—see section 302;
and
(b) for chapter 9 (Criminal matters—conduct of disciplinary
reviews)—see section 321.
risk assessment, for chapter 16 (Care and
protection—therapeutic protection of children and young people)—see
section 533.
safe custody warrant—see section 683.
safe room segregation direction, for division 6.6.3
(Segregation)—see section 203.
safety and wellbeing information, for division 25.3.2
(Sharing safety and wellbeing information)—see section 857.
scanning search—
(a) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(b) for part 16.3 (Children and young people in therapeutic
protection)—see section 584.
school means—
(a) a government or non-government school under the Education Act
2004; or
(b) an educational institution conducted by the Canberra Institute of
Technology.
school-leaving age—see the Education Act 2004,
dictionary.
Note The Education Act 2004, dictionary defines
school-leaving age as 15 years old.
security classification, for chapter 6 (Criminal
matters—detention places)—see section 136.
segregation, for division 6.6.3 (Segregation)—see
section 203.
segregation direction—
(a) for division 6.6.3 (Segregation)—see section 203;
but
(b) for subdivision 6.6.3.4 (Review of certain segregation
directions)—see section 215.
sending State—
(a) for part 5.2 (Interstate transfers)—see section 113;
and
(b) for chapter 17 (Care and protection—interstate transfer of
orders and proceedings)—see section 636.
sensitive information—see section 844.
short-term parental responsibility provision, in a care and
protection order, for the care and protection chapters—see
section 475.
sibling, of a child or young person, includes a stepbrother
or stepsister of the child or young person and a half-brother or half-sister of
the child or young person.
significant harm, for the care and protection
chapters—see section 340.
significant person, for a child or young person—see
section 14.
specific issues provision—see
section 491.
specific parental authority—see section 514.
stability proposal, for a child or young person—see
section 455.
State—
(a) for chapter 17 (Care and protection—interstate transfer of
orders and proceedings)—see section 636; and
(b) for chapter 25 (Information secrecy and sharing) see section 841
(2).
State Childrens Court, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 636.
strip search—
(a) for chapter 7 (Criminal matters—search and seizure at detention
places)—see section 245; and
(b) for part 16.3 (Children and young people in therapeutic
protection)—see section 588.
suitability information—see section 65.
suitability information notice, for part 2.4 (Suitable
entities for purposes under Act)—see section 66 (2).
suitable entities register, for part 2.4 (Suitable entities
for purposes under the Act)—see section 72.
suitable entity, to provide a service—see
section 61.
supervision provision, for the care and protection
chapters—see section 488.
support person, of an accused detainee—
(a) for chapter 8 (Criminal matters—discipline at detention
places)—see section 285; and
(b) for chapter 9 (Criminal matters—conduct of disciplinary
reviews)—see section 285.
temporary parental responsibility provision, in
the care and protection chapters—see section 372.
test sample, for part 6.7 (Alcohol and drug
testing)—see section 234.
therapeutic protection history—see section
536.
therapeutic protection order—see
section 531.
therapeutic protection person, for chapter 16 (Care and
protection—therapeutic protection of children and young people)—see
section 529.
therapeutic protection place—see section 534.
therapeutic protection plan—see section 535.
therapeutic protection standards—see section 886 (2)
(d).
Torres Strait Islander means a person who—
(a) is a descendant of the indigenous inhabitants of the Torres Strait
Islands; and
(b) regards himself or herself as a Torres Strait Islander or, if the
person is a child or young person, is regarded as a Torres Strait Islander by a
parent or relative.
transfer agreement, for part 5.2 (Interstate
transfers)—see section 114.
transfer arrangement, means a transfer arrangement under
section 115 (Transfer arrangements—general) or, if the transfer
arrangement has been amended by another transfer arrangement under that section,
the transfer arrangement as amended.
transfer escort, for part 5.2 (Interstate
transfers)—see section 113.
transfer order—for part 5.2 (Interstate
transfers)—see section 119.
transition plan, for chapter 16 (Care and
protection—therapeutic protection of children and young people)—see
section 537.
treating doctor, for the criminal matters chapters—see
section 97.
visiting conditions, for chapter 6 (Criminal
matters—detention places)—see section 136.
visitor, for chapter 6 (Criminal matters—detention
places)—see section 136.
voluntary care agreement—see section 393.
voluntary report—see section 353.
welfare body, for chapter 17 (Care and
protection—interstate transfer of orders and proceedings)—see
section 636.
work experience, for chapter 21 (Employment of children and
young people)—see section 779.
work experience standards—see section 886 (2)
(g).
young detainee—see section 95.
young offender means—
(a) a person who—
(i) has been convicted or found guilty of an offence by a court;
and
(ii) was under 18 years old when the offence was committed; but
(b) for part 5.2 (Interstate transfers)—see section 113.
young person—see section 12.
young remandee, for chapter 6 (Criminal
matters—detention places)—see section 136.
youth detention officer, for the criminal matters
chapters—see section 96.
youth detention policy, for chapter 6 (Criminal
matters—detention places)—see section 136.
youth justice principles—see section 94.
Endnotes
1 Presentation speech
Presentation speech made in the Legislative Assembly on 2008.
2 Notification
Notified under the Legislation Act on 2008.
3 Republications of amended laws
For the latest republication of amended laws, see
www.legislation.act.gov.au.
© Australian Capital Territory
2008
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