New South Wales Consolidated Acts

[Index] [Table] [Search] [Search this Act] [Notes] [Noteup] [Previous] [Download] [History] [Help]

CHILDREN AND YOUNG PERSONS (CARE AND PROTECTION) ACT 1998 - SCHEDULE 3

SCHEDULE 3 – Savings, transitional and other provisions

(Section 263)

Part 1 - Regulations

1 Regulations

(1) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of this Act or any Act that amends this Act.
(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.
(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:
(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or
(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.
(4) Without limiting subclauses (1) and (2), regulations made for the purposes of this clause may amend this Schedule to provide for additional or different savings and transitional provisions instead of including the provisions in the regulations.

Part 2 - Provision consequent on enactment of Children and Young Persons (Care and Protection) Amendment Act 2005

2 Provision consequent on enactment of Children and Young Persons (Care and Protection) Amendment Act 2005

Section 233, as in force immediately before the commencement of this clause, continues to apply to and in respect of a search warrant applied for under that section as in force before that commencement.

Part 3 - Provisions consequent on enactment of Children and Young Persons (Care and Protection) Amendment Act 2006

3 Definition

In this Part:

"amending Act" means the Children and Young Persons (Care and Protection) Amendment Act 2006 .

4 Protection of persons who make reports or provide certain information

(1) The amendment made to section 29 (1) (f) by the amending Act extends to any information disclosed to a body before the commencement of the amendment.
(2) Section 29 (3A) extends to reports made, actions taken or information provided before the commencement of the subsection.
(3) Section 29 extends to any report made under section 120 or 121 before the amendment of section 29 (6) by the amending Act.

5 Emergency care and protection orders

Section 46 (5) extends to an application made before the commencement of the subsection.

6 Variation of care orders

Section 61 (3), as repealed and re-enacted by the amending Act, extends to any order sought before that repeal and re-enactment.

7 Notification of care applications

Section 64 (7) and (8) extend to any application made before the commencement of the subsections.

8 Leave to file further documentary evidence or amend application

Section 68 (2) extends to documentary evidence filed before the commencement of the subsection.

9 Care proceedings

The amendments made to sections 71, 75, 79 and 90 by the amending Act extend to care proceedings not finally determined when the respective amendments commence.

10 Court procedure

(1) The amendments made to sections 93, 96 and 99, and section 104 as repealed and re-enacted, by the amending Act extend to proceedings not finally determined when the respective amendments and section 104 as re-enacted commence.
(2) The amendments made to section 105 by the amending Act extend to proceedings conducted before the commencement of the amendments.

11 Application for order for alternative parenting plan

Section 116 (4) extends to any application made before the commencement of the subsection.

12 Order for sole parental responsibility

Section 149 (4A) extends to any application made before the commencement of the subsection.

13 Regulations concerning probity checks

A regulation for or with respect to probity checks referred to in section 220 (a1) may apply so as to require probity checks on persons residing at a certain home immediately before the regulation commences.

Part 4 - Provisions consequent on enactment of Children and Young Persons (Care and Protection) Amendment (Parent Responsibility Contracts) Act 2006

14 Definition

In this Part:

"amending Act" means the Children and Young Persons (Care and Protection) Amendment (Parent Responsibility Contracts) Act 2006 .

15 Effect of re-enactment of section 38 (3)

Section 38 (3) (as substituted by Schedule 1 [8] to the amending Act) extends to proceedings before the Children's Court that were pending (but not finally determined) immediately before the commencement of Schedule 1 [8] to that Act.

16 Registration of care plans

A care plan that was duly registered immediately before the commencement of section 38F (as inserted by the amending Act) is taken to have been duly registered for the purposes of that section.

Part 5 - Provisions consequent on enactment of Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2006

17 Definition

In this Part:

"amending Act" means the Children and Young Persons (Care and Protection) Miscellaneous Amendments Act 2006 .

18 Legal representation

Section 99 as in force before its repeal and re-enactment by the amending Act continues to apply to any proceedings before the Children's Court that were pending (but not finally determined) before that repeal and re-enactment.

19 Admissibility of certain evidence

Sections 106A and 107 (3A), as inserted by the amending Act, extend to apply in respect of proceedings before the Children's Court that were pending (but not finally determined) immediately before the commencement of the section concerned.

20 Exempt premises

Premises that were exempt premises within the meaning of section 200 (3) (b) or (c) immediately before the repeal of those paragraphs by the amending Act are taken to be exempt premises within the meaning of section 199 as amended by the amending Act.

21 Institution of proceedings

Section 258A, as inserted by the amending Act, extends to apply in respect of offences alleged to have been committed before the commencement of that section.

Part 6 - Provision consequent on enactment of Children and Young Persons (Care and Protection) Amendment (Children's Employment) Act 2009

22 Application of amendment

The amendment to the definition of
"child" in section 221 made by the Children and Young Persons (Care and Protection) Amendment (Children's Employment) Act 2009 extends to the employment of a person on or after the commencement of that amendment, even if the contract or other arrangement under which the person is employed was entered into or made before that commencement.

Part 7 - Provisions consequent on enactment of Children and Young Persons (Care and Protection) Amendment (Children's Services) Act 2010

23 Definitions

In this Part:

"amending Act" means the Children and Young Persons (Care and Protection) Amendment (Children's Services) Act 2010 .

"existing licence" means a licence for a children's service granted under Part 3 of Chapter 12 before the commencement of the new licensing scheme, and which was in force immediately before the commencement of the new licensing scheme.

"new licensing scheme" means Part 3 of Chapter 12, as substituted by the amending Act.

24 Pending licence applications

An application for a licence that was made under Chapter 12 before the commencement of the new licensing scheme, and which has not been granted or refused by that commencement, is to be treated as:

(a) an application for a service provider licence by the applicant in respect of the type of children's service to which the application relates, and
(b) an application for a children's service approval in respect of the children's service to which the application relates, and
(c) an application for a supervisor approval in respect of any person nominated in the application as the proposed supervisor for the service.

25 Conversion of existing licences

(1) An existing licence is taken, on the commencement of the new licensing scheme:
(a) to be a service provider licence that authorises the licensee under the licence to provide the children's services to which the existing licence relates (a
"corresponding service provider licence" ), and
(b) to be a children's service approval that authorises the operation of the children's service to which the existing licence relates (a
"corresponding children's service approval" ), and
(c) to be a supervisor approval that authorises any person specified in the existing licence as an authorised supervisor to supervise the children's service to which the existing licence relates (a
"corresponding supervisor approval" ).
(2) A licensee under an existing licence is taken to be the licensee under a corresponding service provider licence.
(3) A person specified in an existing licence as an authorised supervisor for a children's service is taken:
(a) to be the holder of a corresponding supervisor approval, and
(b) to have been appointed as the authorised supervisor of the children's service to which the existing licence relates.
(4) If an existing licence was granted for a specified period of 5 years, a corresponding service provider licence, children's service approval or supervisor approval remains in force until it is revoked by the Director-General under the new licensing scheme.
(5) If an existing licence was granted for a specified period of less than 5 years, a corresponding service provider licence, children's service approval or supervisor approval remains in force for the balance of that period, unless sooner revoked by the Director-General under the new licensing scheme.
(6) A corresponding service provider licence, children's service approval or supervisor approval has effect subject to any conditions that applied to the existing licence immediately before the commencement of the new licensing scheme. This subclause does not prevent the imposition of new conditions or the variation of conditions.
(7) Chapter 12, as amended by the amending Act, applies to a corresponding service provider licence, children's service approval or supervisor approval, subject to this Part and to any modifications prescribed by the regulations.
(8) This clause does not prevent the Director-General from issuing a new service provider licence, children's service approval or supervisor approval for the purpose of replacing a corresponding service provider licence, children's service approval or supervisor approval.

26 Suspended licences

(1) A licence for a children's service granted under Part 3 of Chapter 12 before the commencement of the new licensing scheme that was the subject of a suspension on that commencement is taken to be an existing licence for the purposes of this Part.
(2) However, the suspension continues to apply in respect of a corresponding service provider licence, children's service approval or supervisor approval.

27 Other applications

An application to vary an existing licence that was made before the commencement of the new licensing scheme, and which has not been granted or refused by that commencement, may be dealt with by the Director-General as an application or notification under the new licensing scheme, as the Director-General considers appropriate.

28 References to former licence or approval holders

In Chapter 12, a reference to a person who was formerly a licensed service provider or authorised supervisor of a children's service includes a reference to a person who was formerly a licensee or authorised supervisor under Chapter 12 as in force before the commencement of the new licensing scheme.

Part 8 - Provision consequent on enactment of Children and Young Persons (Care and Protection) Amendment Act 2010

29 Provision of voluntary out-of-home care

A child or young person who was, immediately before the substitution of section 156A by the Children and Young Persons (Care and Protection) Amendment Act 2010 , in voluntary out-of-home care is taken for the purposes of that section to have been placed in voluntary out-of-home care on the date of substitution of that section.

Part 9 - Provision consequent on enactment of Royal Commissions and Ombudsman Legislation Amendment Act 2013

30 Application of amendments to Child Sexual Abuse Royal Commission

(1) The amendments made by the Royal Commissions and Ombudsman Legislation Amendment Act 2013 to this Act extend to the Child Sexual Abuse Royal Commission.
(2) In this clause,
"Child Sexual Abuse Royal Commission" means the Royal Commission into institutional responses to allegations and incidents of child sexual abuse and related matters, issued by the Governor by Letters Patent on 25 January 2013 (and including any later alterations and variations of those Letters Patent).

Part 10 - Provisions consequent on enactment of Child Protection Legislation Amendment Act 2014

31 Definition

In this Part:

"amending Act" means the Child Protection Legislation Amendment Act 2014 .

32 Parent responsibility contracts

(1) An amendment made to sections 38A- 38E by the amending Act extends (except as provided by subclause (2)) to a parent responsibility contract that is in force immediately before the commencement of the amendment.
(2) Section 38E (4) as in force immediately before its repeal by the amending Act continues to apply to and in respect of a parent responsibility contract that is in force immediately before that repeal unless its terms are varied under sections 38A-38E as amended by the amending Act.

33 Contact orders

(1) An application may be made under section 86 (1A), as inserted by the amending Act, by a party to proceedings commenced (irrespective of whether or not finally determined) before the commencement of the insertion.
(2) Section 86A, as inserted by the amending Act, extends to the variation of a contact order made before that insertion.

34 Orders for sole parental responsibility

An order that is in force under section 149 of the Act (as in force immediately before its repeal by the amending Act) allocating sole parental responsibility to an authorised carer (or to the authorised carer and his or her partner) continues to have effect, on the repeal, as if that section were still in force.

35 Other orders allocating parental responsibility

(1) An order that is in force under section 79 (1) (a) (iii) of the Act (immediately before the substitution of that subparagraph by the amending Act) allocating all aspects of parental responsibility for a child or young person at a place other than the usual home of the child or young person to a relative or kin of the child or young person until the child or young person reaches 18 years of age (the
"original order" ) is taken, on the commencement of section 79A, to be a guardianship order allocating all aspects of parental responsibility for the child or young person to that relative or kin.
(1A) A guardianship order that is taken to have been made under subclause (1) is taken to have allocated aspects of parental responsibility to the relevant relative or kin referred to in that subclause only and not to any other person.
(2) Despite section 135 (3) (b1) (as inserted by the amending Act), a relative or kin of a child or young person who, immediately before being taken to have parental responsibility for a child or young person under a guardianship order by the operation of subclause (1), was being provided with financial assistance under section 161 may (subject to subclause (3) and the regulations) continue to be provided financial assistance under that section as if the child or young person were still in out-of-home care for the purposes of this Act.
(3) A person who is provided with financial assistance in accordance with subclause (2) must make an annual report to the Director-General (in the form required by the Director-General) concerning such matters as may be required by the Director-General relating to the provision of that financial assistance.

36 Existing supported out-of-home care arrangements

Except as provided by clause 35, a provision of Chapter 8 that applied to or in respect of the placement of a child or young person in supported out-of-home care before the provision was amended by the amending Act continues to apply to and in respect of that placement as if the provision had not been amended.

37 Parent capacity orders

Section 91B (b), as inserted by the amending Act, extends to a prohibition order breached before the insertion.

38 Alternative dispute resolution

Chapter 15A, as inserted by the amending Act, does not apply to or in respect of alternative dispute resolution conducted before the commencement of that Chapter under section 37, 65 or 114.

39 Preparation of permanency plan

Section 83 (4), as amended by the amending Act, extends to a plan prepared, but that has not been submitted to the Children's Court in accordance with section 83 (3), before the commencement of the amendment.

Part 11 - Provisions consequent on enactment of Child Protection Legislation Amendment Act 2015

40 Definition

In this Part:

"amending Act" means the Child Protection Legislation Amendment Act 2015 .

41 Principal officer

Section 5A (4) extends to things done by, or with the approval of, a principal officer before the commencement of that subsection in the same way as it applies to things done by, or with the approval of, a principal officer after that commencement.

42 Notification of other residents

(1) Section 79D extends to any person residing on the same property as the prospective guardian who has not been notified to the designated agency even if that person commenced residing on the property, or attained the age of 18 years, before the commencement of that section.
(2) Section 137 (3), as substituted by the amending Act, extends to any person residing on the same property as the authorised carer who has not been notified to the designated agency even if that person commenced residing on the property, or attained the age of 18 years, before that substitution.

43 Reviews by NCAT

Section 245 (1), as in force immediately before it was amended by the amending Act, continues to apply in respect of any decision made before that amendment.

Part 12 - Provisions consequent on enactment of Children and Young Persons (Care and Protection) Amendment Act 2018

44 Definition

In this Part:

"amending Act" means the Children and Young Persons (Care and Protection) Amendment Act 2018 .

45 Alternative dispute resolution processes

To avoid doubt, section 37 (1A), as inserted by the amending Act, applies only in relation to determinations made by the Secretary on or after the commencement of that provision.

46 Guardianship orders by consent

To avoid doubt, section 38, as amended by the amending Act, does not apply in relation to a care plan entered into before the commencement of the amendments.

47 Short term orders allocating parental responsibility to Minister

Section 79 (9) and (10), as inserted by the amending Act, extend to apply in relation to an application for an order under section 79 (1) (b) that was pending (but not finally determined) immediately before the commencement of those provisions.

48 Court review of progress in implementing care plan

Section 82 (3) and (3A), as inserted by the amending Act, apply only in relation to a report ordered by the Children's Court under section 82 (1) after the commencement of the provisions.

49 Preparation of permanency plans

Section 83, as amended by the amending Act, applies to assessments or findings under that section occurring on or after the commencement of those amendments irrespective of whether the proceedings before the Children's Court to which they relate were pending (but not finally determined) immediately before that commencement.

50 Contact orders for duration of guardianship order

Section 86 (8), as inserted by the amending Act:

(a) applies irrespective of whether a guardianship order was made before or after the commencement of that subsection, and
(b) extends to a contact order made on an application that was pending (but not finally determined) immediately before that commencement.

51 Pending applications for leave to apply to vary or rescind a care order

An application for leave under section 90 (1) that was pending before the commencement of the amendments made to section 90 by the amending Act is to continue to be dealt with under section 90 as in force immediately before that commencement.

52 Applications for variation of interim care orders

Section 90AA, as inserted by the amending Act, extends to proceedings before the Children's Court that were pending (but not finally determined) immediately before the commencement of the section.

53 Publication of names and identifying material

(1) Section 105 (1AA), as inserted by the amending Act, applies to publishing or broadcasting the name of the child or young person, irrespective of whether the child or young person was placed under the parental responsibility of the Minister or entered the out-of-home care before or after the commencement of the provision.
(2) Section 105 (3) (a1) and (b) (iiia), as inserted by the amending Act, apply to publishing or broadcasting the name of a child or young person, irrespective of whether the inquest concerning his or her suspected death was held before or after the commencement of those provisions.

54 Extended period for living with parents before restoration date

Section 136, as amended by the amending Act, extends to a child or young person who was placed in statutory out-of-home care, or for whom a relevant care plan or permanency plan was approved by the Children's Court, before the commencement of the amendment.

55 Supported out-of-home care arrangements not supported by a court order

(1) The Secretary may continue to support an arrangement referred to in section 153 (3), as in force immediately before the substitution of section 153 by the amending Act, as if section 153 had not been substituted. While so supported, the arrangement continues to be a supported out-of-home care arrangement for the purposes of the Act.
(2) Section 155, as in force immediately before its substitution by the amending Act, continues to apply to the arrangement as if the section had not been substituted.



AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback