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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Children's Protection (Implementation of Coroner's
Recommendations) Amendment Bill 2015
A BILL FOR
An Act to amend the
Children's
Protection Act 1993
.
Contents
Part 2—Amendment of Children's
Protection Act 1993
7Amendment of section
6—Interpretation
8Amendment of section 37—Application for
care and protection order
9Amendment of section 38—Court's power to
make orders
10Insertion of Part 5 Division 3
Division 3—Chief Executive to take
action in relation to persons with qualifying offences
44CTemporary guardianship
instruments and restraining notices
44DCourt may grant an extension of
time
44FInformation to
be provided to Chief Executive
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Children's Protection (Implementation of
Coroner's Recommendations) Amendment Act 2015.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Children's Protection
Act 1993
Section 3—delete the section and substitute:
3—Objects
(1) The primary object
of this Act is to keep children safe from harm (and in the administration of
this Act that object must, in all cases, be the paramount
consideration).
(2) Without limiting
subsection (1)
, the Act also has the following objects:
(a) to ensure as far as practicable that all children are cared for in a
way that allows them to reach their full potential; and
(b) to recognise the importance of families to children and promote caring
attitudes and responses towards children among families and all sections of the
community so that the need for appropriate nurture, care and protection
(including protection of the child's cultural identity) is understood, risks to
a child's wellbeing are quickly identified, and any necessary support,
protection or care is promptly provided.
Section 4—delete the section
6—Amendment
of section 5—Provisions relating to dealing with Aboriginal or Torres
Strait Islander children
(1) Section 5—before subsection (1) insert:
(a1) In dealing with matters relating to Aboriginal or Torres Strait
Islander children, the Aboriginal and Torres Strait Islander Child Placement
Principle is to be observed.
(2) Section 5(2)—delete "the requirements of section 4" and
substitute:
any other requirements under this Act
7—Amendment
of section 6—Interpretation
Section 6—after subsection (3) insert:
(4) In assessing whether—
(a) there is a significant risk that a child will suffer serious harm to
his or her physical, psychological or emotional wellbeing; or
(b) a child has been, or is being, abused or neglected,
for the purposes of this Act, regard must be had to not only the current
circumstances of the child's care but also the history of the child's care and
the likely cumulative effect on the child of that history.
8—Amendment
of section 37—Application for care and protection
order
Section 37—after subsection (2) insert:
(3) If an instrument of guardianship or a restraining notice has been
issued under Division 3, the Minister must, as soon as practicable after
the issue of the instrument or notice (and in any case within the applicable
guardianship period or restraining notice period) apply to the Youth Court for
an order under this Division (and in such a case the grounds of the application
will be taken to be that the instrument of guardianship or restraining notice
was properly issued under Division 3).
9—Amendment
of section 38—Court's power to make orders
Section 38(1)—after paragraph (e) insert:
(ea) if an instrument of guardianship or a restraining notice is in force
and the application has been made under section 37(3)—the Court may
revoke the instrument or notice;
10—Insertion
of Part 5 Division 3
After section 44 insert:
Division 3—Chief Executive to take action in
relation to persons with qualifying offences
44A—Interpretation
(1) In this Division—
guardianship period means the period beginning at the time an
instrument of guardianship is lodged with the Court in accordance with
section 44C(5)(b)
and ending 60 days later (or such longer period as may be allowed by
the Court on an application under
section 44D
);
instrument of guardianship—see
section 44C(1)
;
parent, of a child, does not include a stepmother or
stepfather of the child;
qualifying offence means any of the following offences
(whether committed before or after the commencement of this Division) where the
victim was a child and the offender was a parent or guardian of the
child:
(a) murder;
(b) manslaughter;
(c) an offence against section 14 of the
Criminal
Law Consolidation Act 1935
(criminal neglect);
(d) an offence against section 23 of the
Criminal
Law Consolidation Act 1935
(causing serious harm);
(e) an offence against section 29(1) or (2) of the
Criminal
Law Consolidation Act 1935
(acts endangering life or creating risk of serious harm);
(f) an offence constituted of an attempt to commit an offence referred to
in a preceding paragraph;
(g) an offence under the law of another jurisdiction that corresponds to
an offence referred to in a preceding paragraph;
restraining notice—see
section 44C(3)
;
restraining notice period means the period commencing at the
time at which the restraining notice is served on the offender in accordance
with
section 44C(5)(a)
and ending 60 days later (or such longer period as may be allowed by
the Court on an application under
section 44D
).
(2) For the purposes of this Division, a reference to a person being
found guilty of an offence will be taken to include a reference
to—
(a) a finding of a
court under Part 8A of the
Criminal
Law Consolidation Act 1935
that the objective elements of an offence are established (whether or not
the person was found not guilty of the offence, or was found to be mentally
unfit to stand trial, pursuant to Division 2 or 3 of that Part);
or
(b) any finding of a court of another jurisdiction that corresponds to a
finding referred to in
paragraph (a)
.
44B—Application of Division
This Division only applies in relation to a child who—
(a) is born in this State after the commencement of this section;
and
(b) is not subject to a guardianship order under this or any other
Act.
44C—Temporary guardianship instruments and
restraining notices
(1) The Chief Executive
must, if he or she becomes aware that a child is residing with a parent of the
child who has been found guilty of a qualifying offence (the
offender), issue an instrument under this section (an
instrument of guardianship) in respect of the child.
(2) If the Chief Executive issues an instrument of guardianship, the child
specified in the instrument will, for all purposes, be under the guardianship of
the Minister during the guardianship period (subject to an order of the Court on
an application under section 37(3)).
(3) The Chief Executive
must, if he or she becomes aware that a child is residing, or is about to
reside, with a person (not being a parent of the child) who has been found
guilty of a qualifying offence (the offender), issue a notice
under this section (a restraining notice) to the offender, unless
the Chief Executive is of the opinion that it is inappropriate to do so in the
circumstances.
(4) A restraining notice may prohibit the offender from—
(a) residing in the same premises as the child;
(b) coming within a specified distance of the child's residence;
(c) having any contact with the child (except in the presence of a
specified person or class of person);
(d) having any contact at all with the child,
during the restraining notice period (subject to an order of the Court on
an application under section 37(3)).
(5) An instrument of
guardianship or restraining notice issued in relation to an
offender—
(a) must be served on
the offender as soon as practicable after it has been issued; and
(b) must be lodged with
the Court in accordance with any requirements prescribed by the regulations (and
may be so lodged whether or not it has been served in accordance with
paragraph (a)
).
(6) Subject to
subsection (7)
, this Act will be taken to apply to an instrument of guardianship, while
it remains in force, as if it were an order of the Court under Division 2
and as if the parties to that order were—
(a) the parents of the child to whom the instrument relates; and
(b) the child to whom the instrument relates; and
(c) a person who would, but for the instrument, have had custody or
guardianship of the child to whom the instrument relates; and
(d) the Minister.
(7) Until the Minister
makes an application to the Court under section 37(3) in relation to an
instrument of guardianship, any application to the Court under section 40
in relation to the instrument may only seek to vary arrangements for the
custody, care, protection, health, welfare or education of the child.
(8) A person who
contravenes or fails to comply with a restraining notice is guilty of an
offence.
Maximum penalty: Imprisonment for 2 years.
(9) A person does not commit an offence against
subsection (8)
in respect of an act or omission unless the person knew that the act or
omission constituted a contravention of, or failure to comply with, the notice
or was reckless as to that fact.
(10) For the purposes of this section, a newborn child who has not yet
been discharged from hospital will be taken to be residing with a person if the
child is likely to reside with the person on being discharged.
44D—Court may grant an extension of
time
The Court may, on application by the Minister, extend the guardianship
period or the restraining notice period if satisfied that it is appropriate to
do so.
44E—Evidentiary
In any legal proceedings, an apparently genuine document purporting to be
an instrument of guardianship or a restraining notice is, in the absence of
proof to the contrary, proof of the instrument or notice and its
terms.
44F—Information to be provided to Chief
Executive
A court that finds a person guilty of a qualifying offence must ensure that
the prescribed information relating to the finding of guilt is provided to the
Chief Executive as soon as practicable after the person is found
guilty.