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New South Wales
Children and Young Persons (Care and
Protection) Amendment (Children's
Services) Bill 2010
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Children and Young Persons (Care and
Protection) Act 1998 No 157 3
Schedule 2 Amendment of other Acts 33
b2009-111-40.d14
New South Wales
Children and Young Persons (Care and
Protection) Amendment (Children's
Services) Bill 2010
No , 2010
A Bill for
An Act to amend the Children and Young Persons (Care and Protection) Act 1998
to make further provision with respect to the regulation of children's services, and to
make consequential amendments to other legislation.
Children and Young Persons (Care and Protection) Amendment (Children's
Clause 1 Services) Bill 2010
The Legislature of New South Wales enacts: 1
1 Name of Act 2
This Act is the Children and Young Persons (Care and Protection) 3
Amendment (Children's Services) Act 2010. 4
2 Commencement 5
This Act commences on a day or days to be appointed by proclamation. 6
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Children and Young Persons (Care and Protection) Amendment (Children's
Services) Bill 2010
Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 1
No 157
Schedule 1 Amendment of Children and Young 1
Persons (Care and Protection) Act 1998 2
No 157 3
[1] Section 3 Definitions 4
Insert in alphabetical order: 5
children's service approval--see section 199. 6
service provider licence--see section 199. 7
supervisor approval--see section 199. 8
[2] Section 199 Definitions 9
Omit the definitions of authorised supervisor, licence and licensee from 10
section 199 (1). 11
Insert in alphabetical order: 12
approval means a children's service approval or a supervisor 13
approval. 14
approved children's service means a children's service the 15
operation of which is authorised by a children's service approval. 16
authorised supervisor means a person who holds a supervisor 17
approval. 18
children's service approval means a children's service approval 19
granted under this Chapter and which is in force. 20
children's services register means the children's services 21
register kept under Part 7. 22
compliance notice--see Division 1 of Part 5. 23
licensed service provider means a licensee under a service 24
provider licence. 25
licensee under a service provider licence means a person or 26
persons specified in the service provider licence as the licensee or 27
any person appointed as licensee by variation of the licence. 28
service provider licence or licence means a service provider 29
licence granted under this Chapter and which is in force. 30
supervisor approval means a supervisor approval granted under 31
this Chapter and which is in force. 32
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Schedule 1 Amendment of Children and Young Persons (Care and Protection) Act 1998
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[3] Section 199 (3) 1
Insert after section 199 (2): 2
(3) In this Chapter, a reference to the licensee of a children's service, 3
or of an approved children's service, is a reference to the licensed 4
service provider that provides the children's service. 5
[4] Section 202 6
Omit the section. Insert instead: 7
202 Principles underlying the provision of children's services 8
The provision of children's services should be based on the 9
following principles: 10
(a) the paramount consideration in the provision of children's 11
services is the best interests of children, 12
(b) children should receive services that meet their individual 13
needs (including the needs of children with a disability) 14
and enhance their physical, emotional, cognitive, social 15
and cultural development, 16
(c) children's services should assist the development and 17
education of the children who attend them, 18
(d) children's services should be planned and operated in a 19
manner that recognises the diversity of the children who 20
attend them and of the communities that they serve, 21
(e) parents have a right to information about the children's 22
services which their children attend, 23
(f) parents have both a right and a responsibility to be 24
involved in the making of decisions by a children's service 25
in so far as those decisions affect their children. 26
Note. Children's services must also be operated in accordance with any 27
relevant provisions of the Anti-Discrimination Act 1977. 28
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Children and Young Persons (Care and Protection) Amendment (Children's
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Amendment of Children and Young Persons (Care and Protection) Act 1998 Schedule 1
No 157
[5] Chapter 12, Parts 3-8 1
Omit Parts 3-5. Insert instead: 2
Part 3 Regulation of children's services 3
Division 1 Service provider licences 4
204 Prescribed children's services to be provided only by licensed 5
service providers 6
A prescribed children's service may be provided only by a person 7
who is authorised to provide the type of service concerned by a 8
service provider licence. 9
Note. For offences see Division 4. 10
205 Service provider licences 11
(1) The Director-General may, on application, grant a licence (a 12
service provider licence) that authorises a person or persons to 13
provide a specified type or types of prescribed children's service. 14
(2) A service provider licence is to specify the person or persons to 15
whom the licence is granted. 16
(3) Any person so specified is a licensee under the service provider 17
licence. 18
Note. The regulations may provide for information and evidence to 19
accompany an application for a licence and the probity checks to be 20
conducted in respect of the application. 21
206 Refusal to grant licence 22
(1) The Director-General may refuse to grant a service provider 23
licence: 24
(a) if the Director-General is of the opinion that a person 25
proposed as licensee or any relevant person in relation to 26
the application is not a suitable person to be involved in the 27
provision of children's services, or 28
(b) on any other grounds prescribed by the regulations. 29
(2) Each of the following persons is a relevant person in relation to 30
an application: 31
(a) if the proposed licensee is not a natural person--any 32
person involved in the control or management of the 33
proposed licensee (such as a chief executive officer, 34
director or majority shareholder of a corporation), 35
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(b) if the proposed licensee applies for the licence for or on 1
behalf of an association, partnership or trust--a member of 2
the management committee or other office holder of the 3
association, a member of the partnership or a trustee of the 4
trust (as the case requires), 5
(c) any other person prescribed by the regulations. 6
207 Duration of licence 7
(1) A service provider licence may be granted for a fixed term or for 8
no fixed term. 9
(2) If a service provider licence is granted for a fixed term, the 10
licence remains in force for the term specified in the licence, 11
unless sooner revoked. 12
(3) If a service provider licence is granted for no fixed term, it 13
remains in force until it is revoked. 14
(4) In any case, a service provider licence ceases to have effect 15
during any period in which it is suspended. 16
208 Conditions of licences 17
(1) A service provider licence is subject to the following conditions: 18
(a) any conditions imposed by this Act or prescribed by the 19
regulations, 20
(b) any conditions imposed by the Director-General. 21
(2) The Director-General may impose conditions on a licence: 22
(a) at the time of the grant of the licence, or 23
(b) subsequent to the grant of the licence by variation of the 24
licence. 25
(3) A licensee under a service provider licence must not contravene 26
a condition of the licence. 27
Maximum penalty: 200 penalty units. 28
209 Variation of licence 29
(1) The Director-General may, by notice in writing, vary a service 30
provider licence (including any conditions of the licence imposed 31
by the Director-General). 32
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(2) A variation includes the imposition of new conditions on a 1
licence, the substitution of a condition, or the omission or 2
amendment of a condition. 3
Note. The regulations may make provision for the grounds on which a 4
licence may be varied, and the manner in which the variation is to be 5
notified. 6
210 Appointment of additional or substitute licensee 7
(1) The Director-General may vary a service provider licence to 8
appoint a person as licensee under the service provider licence in 9
place of, or in addition to, the existing licensee. 10
(2) Any such variation may be made only: 11
(a) if the licence was granted to authorise the provision of 12
children's services by a person for or on behalf of an 13
association, partnership or trust and, as a result of a change 14
in circumstances, it is no longer appropriate for the person 15
to be the licensee for or on behalf of that association, 16
partnership or trust, or 17
(b) if the existing licensee has died, or 18
(c) in other circumstances prescribed by the regulations. 19
(3) A person appointed by the Director-General as licensee is taken 20
to be a licensee under the licence for the period (if any) specified 21
by the Director-General in the appointment. 22
211 Revocation or suspension of licences 23
(1) The Director-General may revoke or suspend a service provider 24
licence: 25
(a) if the Director-General is of the opinion that a licensee 26
under the licence or any relevant person in relation to the 27
licence is no longer a suitable person to be involved in the 28
provision of children's services, or 29
(b) if the Director-General is of the opinion that the continued 30
provision of children's services by a licensee under the 31
licence would constitute an unacceptable risk to the safety, 32
welfare or well-being of any child or class of children 33
attending the service, or 34
(c) on any other grounds specified in the regulations. 35
(2) Each of the following persons is a relevant person in relation to 36
a licence: 37
(a) if the licensee is not a natural person--any person involved 38
in the control or management of the licensee (such as a 39
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chief executive officer, director or majority shareholder of 1
a corporation), 2
(b) if the licence authorises the provision of children's 3
services by a person for or on behalf of an association, 4
partnership or trust--a member of the management 5
committee, or other office holder, of the association, a 6
member of the partnership or a trustee of the trust (as the 7
case requires), 8
(c) any other person prescribed by the regulations. 9
212 Special condition--home based children's service 10
It is a condition of a service provider licence for a home based 11
children's service that the licensee under the licence provide that 12
children's service only at the licensee's home. 13
Division 2 Approval of operation of children's services 14
213 Prescribed children's service to be operated only with approval 15
(1) A prescribed children's service may be provided only if the 16
operation of the particular children's service is authorised by a 17
children's service approval. 18
(2) An approved children's service (other than a home based 19
children's service) may be provided by any licensed service 20
provider authorised by its service provider licence to provide the 21
type of children's service concerned. 22
(3) A home based children's service may be provided only by a 23
licensed service provider authorised by a service provider licence 24
to provide that particular home based children's service. 25
Note. For offences see Division 4. 26
214 Children's service approval 27
The Director-General may, on application, grant an approval (a 28
children's service approval) that authorises the operation of a 29
particular prescribed children's service. 30
215 Refusal to grant approval 31
The Director-General may refuse to grant a children's service 32
approval: 33
(a) if the Director-General is of the opinion that the operation 34
of the children's service would constitute an unacceptable 35
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risk to the safety, welfare or well-being of children who 1
would attend the service, or 2
(b) on any grounds prescribed by the regulations. 3
216 Duration of approval 4
(1) A children's service approval may be granted for a fixed term or 5
for no fixed term. 6
(2) If a children's service approval is granted for a fixed term, the 7
approval remains in force for the term specified in the approval, 8
unless sooner revoked. 9
(3) If a children's service approval is granted for no fixed term, the 10
approval remains in force until it is revoked. 11
(4) In any case, a children's service approval ceases to have effect 12
during any period in which it is suspended. 13
217 Conditions of approvals 14
(1) A children's service approval is subject to the following 15
conditions: 16
(a) any conditions imposed by this Act or prescribed by the 17
regulations, 18
(b) any conditions imposed by the Director-General. 19
(2) The Director-General may impose conditions on a children's 20
service approval: 21
(a) at the time of the grant of the approval, or 22
(b) subsequent to the grant of the approval by varying the 23
children's service approval. 24
(3) A licensee of a children's service must not contravene a condition 25
of the children's service approval relating to the children's 26
service. 27
Maximum penalty: 200 penalty units. 28
218 Variation to approval 29
(1) The Director-General may, by notice in writing, vary a children's 30
service approval (including any conditions of the approval 31
imposed by the Director-General). 32
(2) A variation includes the imposition of new conditions on an 33
approval, the substitution of a condition, or the omission or 34
amendment of a condition. 35
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Note. The regulations may make provision for the grounds on which an 1
approval may be varied, and the manner in which the variation is to be 2
notified. 3
219 Revocation and suspension of approvals 4
The Director-General may revoke or suspend a children's service 5
approval: 6
(a) if the Director-General is of the opinion that the continued 7
operation of the children's service would constitute an 8
unacceptable risk to the safety, welfare or well-being of 9
any child or class of children attending the service, or 10
(b) if exceptional circumstances arise as a result of which the 11
Director-General considers it contrary to the best interests 12
of the children attending the service for the service to 13
continue, or 14
(c) if the Director-General revokes or suspends the licence of 15
the licensed service provider that is providing the 16
children's service, or 17
(d) on any other grounds specified in the regulations. 18
Division 3 Approval of supervisors 19
219A Children's services to be operated under supervision of 20
authorised supervisor 21
(1) A licensee of an approved children's service must ensure that at 22
least one authorised supervisor is appointed by the licensee as 23
authorised supervisor of the approved children's service. 24
(2) The person appointed must be a person authorised by his or her 25
supervisor approval to supervise the operation of the approved 26
children's service or type of approved children's service 27
concerned. 28
(3) A contravention of this section is a contravention of a provision 29
of this Chapter. 30
Note. Under Part 5, the Director-General may serve a compliance notice 31
on a person requiring the person to remedy a contravention of a 32
provision of this Chapter. 33
(4) In this Chapter, a reference to the authorised supervisor of a 34
children's service, or of an approved children's service, is a 35
reference to the authorised supervisor appointed for the time 36
being as authorised supervisor of the approved children's service, 37
in accordance with any requirements of the regulations. 38
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(5) An authorised supervisor is not required in respect of a home 1
based children's service. 2
219B Supervisor approvals 3
The Director-General may, on application, grant an approval (a 4
supervisor approval) that authorises a person to supervise the 5
operation of a specified children's service or a specified type or 6
types of children's services. 7
219C Refusal to grant approval 8
The Director-General may refuse to grant a supervisor approval: 9
(a) if the Director-General is of the opinion that the applicant 10
is not a suitable person to be involved in the supervision or 11
operation of children's services, or 12
(b) on any grounds prescribed by the regulations. 13
219D Duration of approval 14
(1) A supervisor approval may be granted for a fixed term or for no 15
fixed term. 16
(2) If a supervisor approval is granted for a fixed term, the approval 17
remains in force for the term specified in the approval, unless 18
sooner revoked. 19
(3) If a supervisor approval is granted for no fixed term, the approval 20
remains in force until it is revoked. 21
(4) In any case, a supervisor approval ceases to have effect during 22
any period in which it is suspended. 23
219E Conditions of approvals 24
(1) A supervisor approval is subject to the following conditions: 25
(a) any conditions imposed by this Act or prescribed by the 26
regulations, 27
(b) any conditions imposed by the Director-General. 28
(2) The Director-General may impose conditions on an approval: 29
(a) at the time of the grant of the approval, or 30
(b) subsequent to the grant of the approval by variation to the 31
approval. 32
(3) A person who is an authorised supervisor must not contravene a 33
condition of the person's supervisor approval. 34
Maximum penalty: 200 penalty units. 35
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219F Variation to approval 1
(1) The Director-General may, by notice in writing, vary a supervisor 2
approval (including any conditions of the approval imposed by 3
the Director-General). 4
(2) A variation includes the imposition of new conditions on an 5
approval, the substitution of a condition, or the omission or 6
amendment of a condition. 7
Note. The regulations may make provision for the grounds on which an 8
approval may be varied, and the manner in which the variation is to be 9
notified. 10
219G Revocation and suspension of approval 11
The Director-General may revoke or suspend a supervisor 12
approval: 13
(a) if the Director-General is of the opinion that the authorised 14
supervisor is no longer a suitable person to be involved in 15
the supervision or operation of a children's service, or 16
(b) on any other grounds specified in the regulations. 17
219H Special provision for school-based children's services 18
(1) For an approved children's service that is provided by a 19
government school or registered non-government school, the 20
principal of the school for the time being, or a person acting in the 21
position of principal: 22
(a) is taken to hold a supervisor approval that authorises the 23
principal or acting principal to supervise the operation of 24
the children's service, and 25
(b) is taken to have been appointed to supervise the operation 26
of the approved children's service. 27
(2) In this section: 28
government school has the same meaning as it has in the 29
Education Act 1990. 30
registered non-government school has the same meaning as it 31
has in the Education Act 1990. 32
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Division 4 Offences 1
219I Unauthorised provision of children's service 2
(1) A person must not provide a prescribed children's service unless: 3
(a) the person is a licensee under a service provider licence 4
that authorises the person to provide the children's service 5
or type of children's service, and 6
(b) the children's service is an approved children's service. 7
Maximum penalty: 200 penalty units. 8
(2) An authorised supervisor of a children's service who is not the 9
licensee of the children's service does not commit an offence 10
against this section in respect of anything done in the course of 11
supervising that service in accordance with the person's 12
supervisor approval. 13
(3) An employee or other person who provides or assists in providing 14
a children's service (other than an authorised supervisor of the 15
children's service) does not commit an offence against this 16
section if the employee or other person is acting in accordance 17
with directions given by the licensee of the children's service or 18
an authorised supervisor of the children's service. 19
219J Advertising of unauthorised children's services 20
(1) A person must not advertise or hold out that the person is willing 21
to provide a prescribed children's service unless: 22
(a) the person is a licensee under a service provider licence 23
that authorises the person to provide the type of children's 24
service concerned, and 25
(b) the particular children's service being advertised is an 26
approved children's service. 27
Maximum penalty: 5 penalty units. 28
(2) A person must not knowingly publish any advertisement inviting 29
the attendance of children at a prescribed children's service that 30
is not an approved children's service. 31
Maximum penalty: 5 penalty units. 32
(3) A person is not guilty of an offence under this section if: 33
(a) the prescribed children's service is a service that is 34
proposed to be provided in the future, and 35
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(b) the person has duly applied for any service provider 1
licence or children's service approval required to authorise 2
the person to provide the proposed children's service, and 3
(c) the application has not been finally determined. 4
Part 4 Investigation powers 5
219K Definition--person involved in provision of children's services 6
(1) In this Part, a person involved in the provision of children's 7
services means: 8
(a) a person who is, or was formerly, a licensed service 9
provider, or 10
(b) a person who is, or was formerly, an authorised supervisor 11
of a children's service, or 12
(c) a person who is, or was formerly, an employee of a 13
licensed service provider or otherwise engaged to provide 14
or assist in providing a prescribed children's service, or 15
(d) a person who, under the regulations, is, or was formerly, a 16
family day care carer, or 17
(e) a person who is, or was formerly, involved in the control 18
or management of a licensed service provider (such as a 19
director, chief executive officer or majority shareholder), 20
or 21
(f) a person who is, or was formerly, a member of a 22
management committee or other office holder of an 23
association, or a member of a partnership, involved in the 24
provision of children's services, or 25
(g) a person who is, or was formerly, a trustee of a trust 26
involved in the provision of children's services, or 27
(h) any other person the Director-General has reasonable 28
cause to believe is involved, or has formerly been 29
involved, in the provision, management or operation of a 30
prescribed children's service. 31
(2) In this section: 32
employee includes a person engaged under a contract for 33
services. 34
219L Power to require provision of documents 35
(1) The Director-General may, by notice in writing served on a 36
person involved in the provision of children's services, require 37
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the person to provide to the Director-General such relevant 1
documents as the Director-General specifies in the notice. 2
(2) The following documents are relevant documents: 3
(a) any record that a person is required to keep by or under this 4
Chapter (including under the regulations), 5
(b) such other documents as the Director-General reasonably 6
requires for the purposes of the administration or 7
enforcement of this Chapter. 8
(3) A notice under this section must specify the manner in which the 9
documents are required to be provided and a reasonable time by 10
which the documents are required to be provided. 11
(4) A notice under this section may only require a person to provide 12
existing documents that are in the person's possession or that are 13
within the person's power to obtain lawfully. 14
(5) If any document required to be provided under this section is in 15
electronic, mechanical or other form, the notice requires the 16
document to be provided in written form, unless the notice 17
otherwise provides. 18
(6) If any document required to be provided under this section is not 19
in the English language, the notice requires a written translation 20
of its content to be provided with the document, unless the notice 21
otherwise provides. 22
(7) The Director-General may take copies of any documents 23
provided under this section. 24
(8) If the Director-General has reason to believe that any documents 25
provided under this section are evidence of an offence against 26
this Act or the regulations, the Director-General may retain the 27
documents until proceedings for the offence have been heard and 28
determined. 29
219M Power to require answers to questions 30
(1) The Director-General may, by notice in writing served on a 31
person involved in the provision of children's services, require 32
the person to answer questions about any matters in respect of 33
which information is required for the administration or 34
enforcement of this Chapter. 35
(2) The Director-General may, by notice in writing, require a 36
corporation to nominate, in writing within the time specified in 37
the notice, a director or officer of the corporation to be the 38
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corporation's representative for the purpose of answering 1
questions under this section. 2
(3) Answers given by a person nominated by the corporation bind the 3
corporation. 4
(4) The Director-General may, by notice in writing, require a person 5
to attend at a specified place and time to answer questions under 6
this section if attendance at that place is reasonably required in 7
order that the questions can be properly put and answered. 8
(5) The place and time at which a person may be required to attend 9
to answer questions under this section is to be: 10
(a) a place or time nominated by the person, or 11
(b) if the place or time nominated is not reasonable in the 12
circumstances or a place or time is not nominated by the 13
person, a place and time nominated by the 14
Director-General that is reasonable in the circumstances. 15
219N Functions may be exercised outside this State 16
(1) A notice may be given under this Part to a person involved in the 17
provision of children's services even though the person is outside 18
the State, as long as the children's services concerned are or were 19
provided in this State. 20
(2) The Director-General, or a delegate of the Director-General, may 21
attend at a place outside this State for the purpose of obtaining 22
answers to questions asked of a person under this Part. 23
219O Revocation or variation of notices 24
(1) A notice given under this Part may be revoked or varied by the 25
Director-General by further notice in writing served on the 26
person to whom the notice was issued. 27
(2) A notice may be varied by modification of, or addition to, its 28
terms and specifications. 29
(3) The revocation or variation has effect when notice of the 30
revocation or variation is given to the person to whom the notice 31
was issued. 32
(4) Without limiting the above, a notice may be varied by extending 33
the time for complying with the notice. 34
(5) The revocation of a notice does not prevent the issue of another 35
notice. 36
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219P Failure to comply with requirement to provide documents or 1
information or answer questions 2
A person who, without reasonable excuse, fails to comply with a 3
requirement made of the person under this Part is guilty of an 4
offence. 5
Maximum penalty: 200 penalty units. 6
219Q False and misleading information 7
(1) A person who provides any document or information or does any 8
other thing in purported compliance with a requirement made 9
under this Part, knowing that it is false or misleading in a material 10
particular, is guilty of an offence. 11
Maximum penalty: 200 penalty units. 12
(2) A person cannot be found guilty of both an offence against this 13
section and an offence against section 253 in respect of the same 14
act or omission. 15
219R Provisions relating to requirements to provide documents or 16
information or answer questions 17
(1) Warning to be given on each occasion 18
A person is not guilty of an offence of failing to comply with a 19
requirement under this Part to provide documents or information 20
or to answer a question unless the person was warned on that 21
occasion that a failure to comply is an offence. 22
(2) Self-incrimination not an excuse 23
A person is not excused from a requirement under this Part to 24
provide documents or information or to answer a question on the 25
ground that the document, information or answer might 26
incriminate the person or make the person liable to a penalty. 27
(3) Information or answer not admissible if objection made 28
However, any information provided or answer given by a natural 29
person in compliance with a requirement under this Part is not 30
admissible in evidence against the person in criminal proceedings 31
(except proceedings for an offence under this Part) if: 32
(a) the person objected at the time to doing so on the ground 33
that it might incriminate the person, or 34
(b) the person was not warned on that occasion that the person 35
may object to providing the information or giving the 36
answer on the ground that it might incriminate the person. 37
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(4) Documents admissible 1
Any document provided by a person in compliance with a 2
requirement under this Part is not inadmissible in evidence 3
against the person in criminal proceedings on the ground that the 4
document might incriminate the person. 5
(5) Further information 6
Further information obtained as a result of a document or 7
information provided or an answer given in compliance with a 8
requirement under this Part is not inadmissible on the ground: 9
(a) that the document or information had to be provided or the 10
answer had to be given, or 11
(b) that the document or information provided or answer given 12
might incriminate the person. 13
219S Effect on other functions 14
(1) This Part does not affect any functions conferred by any other 15
provision of this Act or by any other Act. 16
(2) In particular, this Part does not affect the functions conferred by 17
Chapter 15. 18
(3) This Part does not limit the conditions that can be attached to a 19
licence or approval. 20
Part 5 Enforcement and compliance 21
Division 1 Compliance notices 22
219T Issue of compliance notices by Director-General 23
(1) If the Director-General is of the opinion that a person is 24
contravening a provision of this Chapter or the regulations under 25
this Chapter, the Director-General may serve on the person a 26
notice (a compliance notice) requiring the person to remedy the 27
contravention within the period specified in the notice. 28
(2) A compliance notice must: 29
(a) give particulars of the alleged contravention, and 30
(b) include information about rights to seek a review of the 31
Director-General's decision to issue the notice. 32
(3) A compliance notice may include directions as to the measures to 33
be taken to remedy any contravention to which the notice relates 34
or to otherwise comply with the notice. 35
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(4) A compliance notice may offer the person to whom it is issued a 1
choice of ways in which to remedy the contravention or to 2
comply with the notice. 3
(5) A compliance notice is to be in a form approved by the 4
Director-General. 5
219U Revocation and variation of compliance notices 6
(1) A compliance notice may be revoked or varied by the 7
Director-General by further notice in writing given to the person 8
to whom the compliance notice was issued. 9
(2) The revocation or variation has effect when notice of the 10
revocation or variation is given to the person to whom the notice 11
was issued. 12
(3) A notice may be varied by modification of, or addition to, its 13
terms and specifications. 14
(4) Without limiting the above, a notice may be varied by extending 15
the time for complying with the notice. 16
(5) The revocation of a compliance notice does not prevent the issue 17
of another compliance notice. 18
219V Failure to comply with compliance notice 19
A person who, without reasonable excuse, fails to comply with a 20
requirement imposed by a compliance notice issued to the person 21
is guilty of an offence. 22
Maximum penalty: 100 penalty units. 23
219W Proceedings for offences not affected by compliance notices 24
(1) The issue, variation or revocation of a compliance notice does not 25
affect any proceedings for an offence against this Act or the 26
regulations in connection with any matter in respect of which the 27
notice was issued. 28
(2) However, a person cannot be convicted of both an offence of 29
failing to comply with a compliance notice and another offence 30
against this Act or the regulations in respect of the same act or 31
omission. 32
Division 2 Enforceable undertakings 33
219X Enforceable undertakings 34
(1) The Director-General may accept a written undertaking given by 35
a person for the purposes of this section in connection with a 36
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matter in relation to which the Director-General has a function 1
under this Chapter. 2
(2) The person may withdraw or vary the undertaking at any time, 3
but only with the consent in writing of the Director-General. The 4
consent of the Director-General is required even if the 5
undertaking purports to authorise withdrawal or variation of the 6
undertaking without that consent. 7
(3) The Director-General may apply to the District Court for an order 8
under this section if the Director-General considers that the 9
person who gave the undertaking has contravened any of its 10
terms. 11
(4) The District Court may make all or any of the following orders if 12
it is satisfied that the person has contravened a term of the 13
undertaking: 14
(a) an order directing the person to comply with that term of 15
the undertaking, 16
(b) an order suspending or revoking any licence or approval 17
that authorises the person to provide or supervise a 18
children's service, 19
(c) an order directing the person to pay to the State an amount 20
not exceeding the amount of any financial benefit that the 21
person has obtained directly or indirectly and that is 22
reasonably attributable to the contravention, 23
(d) any order that the Court thinks appropriate directing the 24
person to compensate any other person who has suffered 25
loss or damage as a result of the contravention, 26
(e) any other order the Court considers appropriate. 27
(5) Proceedings in the District Court under this section are to be 28
heard in its civil jurisdiction. 29
(6) The maximum total amount that the District Court may direct a 30
person to pay to the State or as compensation is the jurisdictional 31
limit of the Court (within the meaning of the District Court Act 32
1973). 33
Division 3 Other enforcement powers 34
219Y Advice to parents using illegal children's services 35
If the Director-General has reason to believe that a children's 36
service is being provided or operated in contravention of this 37
Chapter or the regulations under this Chapter, the 38
Director-General may inform the parent of a child enrolled in the 39
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children's service that it is inadvisable for the child to continue to 1
attend the service. 2
219Z Exclusion of persons from premises of children's service 3
(1) The Director-General may, by notice in writing (an exclusion 4
notice) served on a person involved in, or connected with, the 5
provision of an approved children's service (whether as an 6
owner, manager, licensee, authorised supervisor, employee, 7
contractor, volunteer, parent or otherwise) direct the person to 8
refrain from entering the premises on which the service is 9
provided. 10
(2) The Director-General may give a person an exclusion notice only 11
if the Director-General is of the opinion that the continued 12
presence of the person on those premises would constitute an 13
unacceptable risk to the safety, welfare or well-being of a child or 14
class of children enrolled with the service. 15
(3) The exclusion notice must specify the reasons for the 16
Director-General's opinion. 17
(4) An exclusion notice has effect for a period not exceeding 28 days. 18
(5) A person must not enter any premises in contravention of an 19
exclusion notice. 20
Maximum penalty: 200 penalty units. 21
219ZA Information to licensee concerning exclusion notice 22
(1) The Director-General is to give a copy of any exclusion notice to 23
the licensee of the children's service to which the notice relates. 24
(2) The Director-General may impose a condition on a licence or 25
approval, or revoke a licence or approval, following the issue of 26
an exclusion notice. 27
Part 6 Rights and responsibilities of parents 28
219ZB Information to be provided by licensee 29
(1) The licensee of an approved children's service must provide 30
parents of children enrolled in the service with ready access to the 31
following information (service information): 32
(a) all written policies required to be provided by the 33
regulations and other policies and procedures relating to 34
the conduct of the service developed by the licensee, 35
(b) details of procedures for dealing with parents' concerns 36
and complaints about the service, 37
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(c) such other information relating to the service, or to the 1
safety, welfare or well-being of children who attend the 2
service, as the Director-General, by notice in writing to the 3
licensee, requires the licensee to provide. 4
(2) Service information is to be provided in a language and manner 5
that can be understood by the parents of the children enrolled in 6
the service. 7
(3) The licensee of an approved children's service must inform 8
parents of the availability of service information. 9
Maximum penalty: 2 penalty units. 10
219ZC Parental contact with children 11
(1) A licensee of an approved children's service must afford any 12
parent contact with his or her child at any time that the service is 13
being provided to the child. 14
(2) However, a licensee of an approved children's service may deny 15
a parent contact with his or her child (until the parent's right to 16
contact has been established): 17
(a) if the licensee has reason to believe that a court has denied 18
the parent that contact, or 19
(b) if the licensee is requested to do so by the 20
Director-General, an officer of the Department of Health, 21
a police officer, or any other appropriate authority. 22
(3) This section applies to an authorised supervisor of an approved 23
children's service in the same way as it applies to the licensee of 24
the children's service. 25
Note. The regulations may require, as a condition of a children's service 26
approval, the development of policies and procedures relating to 27
parental contact with children enrolled with the service. 28
Part 7 Children's services register 29
219ZD Register of children's services 30
(1) The Director-General is to keep a register of information about 31
children's services (the children's services register). 32
(2) The children's services register may be kept in such form as the 33
Director-General considers appropriate. 34
(3) The Director-General must ensure that information on the 35
children's services register is kept accurate and up-to-date. 36
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219ZE Information to be recorded on register 1
(1) The Director-General may record any of the following 2
information in the children's services register in relation to each 3
approved children's service: 4
(a) particulars of the children's service approval applying to 5
the children's service, 6
(b) the name and address of the place of business of the 7
licensee of the approved children's service, 8
(c) particulars of the service provider licence under which the 9
licensee is authorised to provide children's services, 10
(d) the name of any person who is an authorised supervisor of 11
the children's service and particulars of that person's 12
supervisor approval, 13
(e) particulars of any compliance notices issued against the 14
licensee or authorised supervisor of the approved 15
children's service (whether in connection with the 16
children's service to which the entry relates or in 17
connection with another children's service), 18
(f) particulars of any other power exercised by the 19
Director-General under this Chapter in relation to the 20
approved children's service, or in relation to the licensee of 21
the approved children's service or an authorised supervisor 22
of the approved children's service (whether in connection 23
with the children's service to which the entry relates or in 24
connection with another children's service), 25
(g) if the licensee or authorised supervisor of the approved 26
children's service has been convicted of an offence under 27
this Chapter or the regulations under this Chapter, 28
particulars of that offence, 29
(h) such other matters as may be prescribed by the regulations. 30
(2) The children's services register may also contain such 31
information of a general nature as the Director-General considers 32
appropriate in relation to licensing and approval of children's 33
services, compliance with this Chapter and the enforcement of 34
this Chapter. 35
(3) Information relating to a conviction for a particular offence is not 36
to be published on the children's services register until after the 37
last day on which an appeal may be made against the conviction. 38
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(4) If an appeal is made against the conviction, information relating 1
to the conviction is not to be published on the children's services 2
register unless a final order has been made on appeal affirming 3
the conviction. 4
(5) The Director-General must remove information about a 5
conviction for a particular offence from the children's services 6
register as soon as practicable if the Director-General becomes 7
aware that the conviction has been quashed or annulled or has 8
become spent (within the meaning of the Criminal Records Act 9
1991). 10
(6) For the purposes of this section: 11
(a) a conviction for an offence includes a finding that an 12
offence has been proved, or that a person is guilty of an 13
offence, without proceeding to a conviction, and 14
(b) section 8 (2) and (4) of the Criminal Records Act 1991 do 15
not apply. 16
219ZF Publication of information on register 17
(1) The children's services register is to be made available for public 18
inspection on the Internet. 19
(2) Information recorded in the children's services register may also 20
be provided to members of the public in any other manner 21
approved by the Director-General. 22
Part 8 Miscellaneous 23
219ZG Special condition--family day care and home based children's 24
services 25
(1) It is a condition of a children's service approval for a family day 26
care children's service or a home based children's service that the 27
licensee of the children's service must notify the 28
Director-General if any person (other than the relevant children's 29
service provider) who is of or above the age of 18 years is 30
residing at the children's service provider's home on a regular 31
basis and has been doing so for a period of at least 3 months. 32
Note. See section 45 of the Commission for Children and Young People 33
Act 1998 which provides for background checks to be carried out in 34
relation to adult household members of children's service providers. 35
(2) Without limiting the above, any such requirement to notify the 36
Director-General applies even though the adult person who is 37
residing at the children's service provider's home was at any time 38
residing at that home as a minor. 39
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(3) In this section, children's service provider means: 1
(a) in the case of a family day care children's service--the 2
person who, under the regulations, is the family day care 3
carer for the service, or 4
(b) in the case of a home based children's service--the 5
licensee of the children's service. 6
219ZH Records 7
(1) A licensee of an approved children's service must keep such 8
records as the regulations require in relation to the approved 9
children's service. 10
(2) The licensee must keep the records in such a manner that they are 11
readily accessible if the licensed service provider is required to 12
produce them to the Director-General, or to any other person who 13
is authorised to inspect them, under this Act. 14
(3) It is a condition of a service provider licence that the licensee 15
comply with this section. 16
219ZI Application of State Records Act 1998 to certain children's 17
services 18
(1) The State Records Act 1998 does not apply to a private children's 19
service and such a service is not a public office for the purposes 20
of that Act. 21
(2) In this section: 22
private children's service means a person or body providing a 23
children's service to the community, being a person or body other 24
than: 25
(a) a department, office, commission, board, corporation, 26
agency, service or instrumentality exercising any function 27
of any branch of the Government of the State, or 28
(b) a council or county council under the Local Government 29
Act 1993. 30
220 Regulations relating to children's services 31
General 32
(1) The regulations may make provision for or with respect to the 33
matters set out in this section. 34
(2) This section does not limit the generality of section 264 35
(Regulations). 36
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Licences and approvals 1
(3) Classes of licences and approvals. 2
(4) The matters to be specified in a licence or approval. 3
(5) Prescribed conditions of licences and approvals. 4
Applications for licences and approvals 5
(6) The persons who may apply for licences and approvals. 6
(7) The form and manner in which, and the time within which, an 7
application for a licence or approval may be made. 8
(8) The information and evidence required to be provided in 9
connection with an application (which may include, without 10
limitation, personal information about the applicant and proposed 11
staff and any relevant person in relation to the application). 12
(9) Requiring that an application (and its supporting documents and 13
information) be lodged in stages as specified in the regulations. 14
(10) The consideration and determination of applications, including 15
(but not limited to) the following: 16
(a) the time within which an application (or a particular stage 17
of an application) is to be dealt with, 18
(b) the grounds on which an application (or a particular stage 19
of an application) may be rejected, 20
(c) the grounds on which the Director-General may refuse to 21
grant a licence or approval, 22
(d) the way in which the rejection or determination of the 23
application (or a particular stage of an application) is to be 24
communicated to the applicant. 25
Probity checks 26
(11) The probity checks that may be made on all persons who are, or 27
who are proposed to be, engaged in the operation or management 28
of a children's service (or a proposed children's service), other 29
than those persons who are employed in child-related 30
employment within the meaning of section 33 of the Commission 31
for Children and Young People Act 1998. 32
Variation, suspension and revocation of licences and approvals 33
(12) The grounds on which a licence or approval may be varied, 34
suspended or revoked. 35
(13) Requiring the giving of notice of an intention to vary, suspend or 36
revoke a licence or approval. 37
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(14) Allowing a licensed service provider or an authorised supervisor 1
time to make submissions in relation to any such intention. 2
(15) The effect of a variation, suspension or revocation of a licence or 3
approval. 4
(16) The restoration of a licence or approval that has been suspended 5
or revoked. 6
(17) The manner in which the variation, suspension or revocation of a 7
licence or approval is to be notified. 8
Licensed service providers 9
(18) Functions of licensed service providers. 10
(19) Requiring a licensed service provider to notify the 11
Director-General of the particular approved children's service or 12
services that the licensed service provider provides or intends to 13
provide. 14
(20) The appointment by the Director-General of a person as licensee 15
under a service provider licence in addition to, or in substitution 16
for, an existing licensee. 17
Authorised supervisors 18
(21) The appointment and functions of authorised supervisors. 19
(22) The maximum number of approved children's services in respect 20
of which the same authorised supervisor may be appointed as 21
authorised supervisor. 22
(23) The maximum number of persons who may be appointed as 23
authorised supervisor of an approved children's service. 24
(24) The authorisation by the Director-General of another person to 25
act as the authorised supervisor of an approved children's service 26
during the absence (because of illness or otherwise) of the 27
authorised supervisor of the approved children's service. 28
Compliance notices 29
(25) The internal review of a decision to issue a compliance notice. 30
(26) The stay of a decision to issue a compliance notice pending the 31
determination of such an internal review. 32
Records 33
(27) The records that are to be kept by licensed service providers, 34
including (but not limited to) the following: 35
(a) the information that the records are to contain, 36
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(b) the form in which they are to be made, 1
(c) the person responsible for making and maintaining them, 2
(d) the persons who may inspect them, 3
(e) the period for which they are to be retained. 4
Children's services register 5
(28) The particulars to be recorded in the children's services register. 6
(29) Providing for applications to the Director-General for the 7
correction of information recorded on the children's services 8
register. 9
Exemptions 10
(30) Exempting specified centre based children's services, or centre 11
based children's services of a specified class, from the 12
requirement that they be provided by a licensed service provider 13
or the subject of a children's service approval (or both). 14
(31) Regulating the services so exempted (including, without 15
limitation, establishing standards to be met by those services). 16
Fees 17
(32) The charging of fees in connection with the administration of this 18
Chapter. 19
(33) The waiver, reduction, deferral or refund of fees charged in 20
connection with the administration of this Chapter. 21
[6] Section 245 Decisions that are reviewable by Administrative Decisions 22
Tribunal 23
Insert after section 245 (1) (k): 24
(l) a decision of the Director-General to refuse to grant a 25
service provider licence, children's service approval or 26
supervisor approval, 27
(m) a decision of the Director-General to impose a condition 28
on the grant of a service provider licence, children's 29
service approval or supervisor approval (not being a 30
condition imposed by this Act or the regulations), 31
(n) a decision of the Director-General to vary, refuse to vary, 32
suspend or revoke a service provider licence, children's 33
service approval or supervisor approval. 34
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[7] Section 259A 1
Insert after section 259: 2
259A Penalty notices 3
(1) An authorised officer may serve a penalty notice on a person if it 4
appears to the officer that the person has committed an offence 5
against this Act or the regulations, being an offence prescribed by 6
the regulations as a penalty notice offence. 7
(2) A penalty notice is a notice to the effect that, if the person served 8
does not wish to have the matter determined by a court, the 9
person can pay, within the time and to the person specified in the 10
notice, the amount of the penalty prescribed by the regulations for 11
the offence if dealt with under this section. 12
(3) A penalty notice under this section is declared to be a penalty 13
notice for the purposes of the Fines Act 1996. 14
(4) A penalty notice may be served personally or by post. 15
(5) If the amount of penalty prescribed for an alleged offence is paid 16
under this section, no person is liable to any further proceedings 17
for the alleged offence. 18
(6) Payment under this section is not to be regarded as an admission 19
of liability for the purpose of, and does not in any way affect or 20
prejudice, any civil claim, action or proceeding arising out of the 21
same occurrence. 22
(7) The regulations may: 23
(a) prescribe an offence for the purposes of this section by 24
specifying the offence or by referring to the provision 25
creating the offence, and 26
(b) prescribe the amount of penalty payable for the offence if 27
dealt with under this section, and 28
(c) prescribe different amounts of penalties for different 29
offences or classes of offences. 30
(8) The amount of a penalty prescribed under this section for an 31
offence is not to exceed the maximum amount of penalty that 32
could be imposed for the offence by a court. 33
(9) This section does not limit the operation of any other provision 34
of, or made under, this or any other Act relating to proceedings 35
that may be taken in respect of offences. 36
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(10) In this section, authorised officer means: 1
(a) an employee of the Department authorised in writing by 2
the Director-General as an authorised officer for the 3
purposes of this section, or 4
(b) a police officer. 5
[8] Schedule 3 Savings, transitional and other provisions 6
Insert at the end of clause 1 (1): 7
Children and Young Persons (Care and Protection) Amendment 8
(Children's Services) Act 2010 9
[9] Schedule 3, Part 7 10
Insert after Part 6: 11
Part 7 Provisions consequent on enactment of 12
Children and Young Persons (Care and 13
Protection) Amendment (Children's 14
Services) Act 2010 15
23 Definitions 16
In this Part: 17
amending Act means the Children and Young Persons (Care and 18
Protection) Amendment (Children's Services) Act 2010. 19
existing licence means a licence for a children's service granted 20
under Part 3 of Chapter 12 before the commencement of the new 21
licensing scheme, and which was in force immediately before the 22
commencement of the new licensing scheme. 23
new licensing scheme means Part 3 of Chapter 12, as substituted 24
by the amending Act. 25
24 Pending licence applications 26
An application for a licence that was made under Chapter 12 27
before the commencement of the new licensing scheme, and 28
which has not been granted or refused by that commencement, is 29
to be treated as: 30
(a) an application for a service provider licence by the 31
applicant in respect of the type of children's service to 32
which the application relates, and 33
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(b) an application for a children's service approval in respect 1
of the children's service to which the application relates, 2
and 3
(c) an application for a supervisor approval in respect of any 4
person nominated in the application as the proposed 5
supervisor for the service. 6
25 Conversion of existing licences 7
(1) An existing licence is taken, on the commencement of the new 8
licensing scheme: 9
(a) to be a service provider licence that authorises the licensee 10
under the licence to provide the children's services to 11
which the existing licence relates (a corresponding service 12
provider licence), and 13
(b) to be a children's service approval that authorises the 14
operation of the children's service to which the existing 15
licence relates (a corresponding children's service 16
approval), and 17
(c) to be a supervisor approval that authorises any person 18
specified in the existing licence as an authorised supervisor 19
to supervise the children's service to which the existing 20
licence relates (a corresponding supervisor approval). 21
(2) A licensee under an existing licence is taken to be the licensee 22
under a corresponding service provider licence. 23
(3) A person specified in an existing licence as an authorised 24
supervisor for a children's service is taken: 25
(a) to be the holder of a corresponding supervisor approval, 26
and 27
(b) to have been appointed as the authorised supervisor of the 28
children's service to which the existing licence relates. 29
(4) If an existing licence was granted for a specified period of 30
5 years, a corresponding service provider licence, children's 31
service approval or supervisor approval remains in force until it 32
is revoked by the Director-General under the new licensing 33
scheme. 34
(5) If an existing licence was granted for a specified period of less 35
than 5 years, a corresponding service provider licence, children's 36
service approval or supervisor approval remains in force for the 37
balance of that period, unless sooner revoked by the 38
Director-General under the new licensing scheme. 39
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(6) A corresponding service provider licence, children's service 1
approval or supervisor approval has effect subject to any 2
conditions that applied to the existing licence immediately before 3
the commencement of the new licensing scheme. This subclause 4
does not prevent the imposition of new conditions or the variation 5
of conditions. 6
(7) Chapter 12, as amended by the amending Act, applies to a 7
corresponding service provider licence, children's service 8
approval or supervisor approval, subject to this Part and to any 9
modifications prescribed by the regulations. 10
(8) This clause does not prevent the Director-General from issuing a 11
new service provider licence, children's service approval or 12
supervisor approval for the purpose of replacing a corresponding 13
service provider licence, children's service approval or 14
supervisor approval. 15
26 Suspended licences 16
(1) A licence for a children's service granted under Part 3 of 17
Chapter 12 before the commencement of the new licensing 18
scheme that was the subject of a suspension on that 19
commencement is taken to be an existing licence for the purposes 20
of this Part. 21
(2) However, the suspension continues to apply in respect of a 22
corresponding service provider licence, children's service 23
approval or supervisor approval. 24
27 Other applications 25
An application to vary an existing licence that was made before 26
the commencement of the new licensing scheme, and which has 27
not been granted or refused by that commencement, may be dealt 28
with by the Director-General as an application or notification 29
under the new licensing scheme, as the Director-General 30
considers appropriate. 31
28 References to former licence or approval holders 32
In Chapter 12, a reference to a person who was formerly a 33
licensed service provider or authorised supervisor of a children's 34
service includes a reference to a person who was formerly a 35
licensee or authorised supervisor under Chapter 12 as in force 36
before the commencement of the new licensing scheme. 37
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Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts 1
2.1 Children and Young Persons Legislation (Repeal and 2
Amendment) Act 1998 No 158 3
[1] Schedule 2 Amendment of other Acts 4
Omit Schedule 2.9. 5
[2] Schedule 2.13 6
Omit the subschedule. 7
[3] Schedule 2.26 8
Omit the subschedule. 9
2.2 Commission for Children and Young People Act 1998 No 146 10
[1] Section 45 Application of background checking provisions to adult 11
persons residing with authorised carers or children's service providers 12
Omit "licensed" wherever occurring in the definition of children's service 13
provider in section 45 (1). 14
Insert instead "approved". 15
[2] Section 45 (3) (a) 16
Insert "provider" after "licensed service". 17
2.3 Companion Animals Act 1998 No 87 18
Section 14 Dogs prohibited in some public places 19
Omit "a child care service as defined in the Children (Care and Protection) 20
Act 1987" from section 14 (1) (f). 21
Insert instead "an approved children's service within the meaning of 22
Chapter 12 of the Children and Young Persons (Care and Protection) Act 23
1998". 24
2.4 Criminal Records Act 1991 No 8 25
Section 15 Employment in certain occupations 26
Omit ", teachers aide or a provider of child care services under Part 3 of the 27
Children (Care and Protection) Act 1987" from section 15 (1). 28
Insert instead "or teachers aide". 29
Page 33
Children and Young Persons (Care and Protection) Amendment (Children's
Services) Bill 2010
Schedule 2 Amendment of other Acts
2.5 Ombudsman Act 1974 No 68 1
Section 25A Definitions 2
Omit "a licensed children's service within the meaning of" from paragraph (b) 3
of the definition of designated non-government agency. 4
Insert instead "an approved children's service within the meaning of 5
Chapter 12 of". 6
2.6 Young Offenders Act 1997 No 54 7
Section 68 Interventions not to be disclosed as criminal history 8
Omit ", teachers aide or a provider of child care services under Part 3 of the 9
Children (Care and Protection) Act 1987" from section 68 (2) (a). 10
Insert "or teachers aide". 11
Page 34
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