South Australian Bills South Australian Bills[Index] [Search] [Download] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Children's Protection (Implementation of Report
Recommendations) Amendment Bill 2009
A BILL FOR
An Act to amend the Children's Protection Act 1993; and to make
related amendments to the Health and Community Services Complaints
Act 2004.
Contents
Part 1—Preliminary
1 Short
title
2 Commencement
3 Amendment provisions
Part 2—Amendment of Children's Protection
Act 1993
4 Amendment of section 4—Fundamental
principles
5 Amendment of section 6—Interpretation
6 Amendment of
section 8—General functions of Minister
7 Amendment of section
8B—Powers and obligations of responsible authority in respect of criminal
history
8 Amendment of section 8C—Obligations of certain
organisations
9 Insertion of section 8D
8D Exemptions
etc
10 Amendment of section 11—Notification of abuse or
neglect
11 Amendment of section 16—Power to remove children from
dangerous situations
12 Substitution of heading to Part 7A
13 Amendment of
section 52A—The Guardian
14 Insertion of section
52AB
52AB Independence
15 Amendment of section
52C—The Guardian's functions and powers
16 Insertion of section
52CA
52CA Use and obtaining of
information
17 Insertion of section 52DA
52DA Other
reports
18 Insertion of Part 7A Divisions 2 to 4
Division 2—Youth Advisory Committee
52EA Youth
Advisory Committee
Division 3—Charter of Rights for Children and Young People in
Care
52EB Development of
Charter
52EC Review of
Charter
52ED Consultation
52EE Approval
of Charter
52EF Obligations of persons involved with
children in care
Division 4—Offences
52EG Offence relating to
intimidation
52EH Offence relating to
reprisals
52EI Offence relating to obstruction
etc
52EJ Offence relating to the provision of
information
19 Amendment of section
63—Regulations
20 Insertion of Schedule 1
Schedule 1—Transitional provisions
1 Responsible
authority to obtain criminal history
Schedule 1—Related amendments
Part 1—Amendment of Health and Community Services
Complaints Act 2004
1 Amendment of section 24—Who may
complain
2 Amendment of section 27—Time within which a complaint may be
made
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Children's Protection (Implementation of
Report Recommendations) Amendment Act 2009.
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
4—Amendment of
section 4—Fundamental principles
(1) Section 4(5)—after "an Aboriginal" insert:
or Torres Strait Islander
(2) Section 4(5)—after "the Aboriginal" insert:
and Torres Strait Islander
5—Amendment of
section 6—Interpretation
(1) Section 6(1)—before the definition of Aboriginal
child insert:
Aboriginal and Torres Strait Islander Child Placement
Principle means the Aboriginal and Torres Strait Islander Child
Placement Principle as stated in the regulations;
(2) Section 6(1), definition of Aboriginal Child Placement
Principle—delete the definition
(3) Section 6(1)—after the definition of family care
meeting insert:
government organisation means a government department, agency
or instrumentality;
(4) Section 6(1), after the definition of medical
practitioner insert:
non-government organisation means—
(a) a business; or
(b) a service provider; or
(c) a group organised for some purpose, work or undertaking (such as a
society, club, institution or body),
whether incorporated or unincorporated, and includes a local government
organisation; but does not include a government organisation;
(5) Section 6—after subsection (1) insert:
(1a) For the purposes of this Act, an organisation may consist of a single
person.
6—Amendment of
section 8—General functions of Minister
Section 8—after subsection (2) insert:
(3) The Minister must, at least twice in each calendar year, consult
groups representing, or comprised of, children or other persons who are, or have
been, under the guardianship, or in the custody, of the Minister.
(4) The purpose of consultation as required under subsection (3) is
to ensure that the Minister regularly receives advice from, and is made aware of
the experiences of, persons who are, or have been, under the guardianship, or in
the custody, of the Minister.
7—Amendment
of section 8B—Powers and obligations of responsible authority in respect
of criminal history
(1) Section 8B(1)—delete subsection (1) and substitute:
(1) The responsible authority for an organisation to which this section
applies must ensure that, before a person is appointed to, or engaged to act in,
a prescribed position (whether as an employee, volunteer, agent, contractor or
subcontractor) in the organisation, an assessment of the person's criminal
history is undertaken in accordance with the regulations.
Maximum penalty: $10 000.
(2) Section 8B(2)—delete "obtain a report from the Commissioner of
Police or some other prescribed source on the criminal history (if any)" and
substitute:
cause an assessment of the person's criminal history to be undertaken in
accordance with the regulations
(3) Section 8B(3) and (4)—delete subsections (3) and (4)
(4) Section 8B(5)(a)—delete "on whose criminal history (if any) the
responsible authority is required or authorised to obtain a report" and
substitute:
in respect of whom the responsible authority is required or authorised to
cause a criminal history assessment to be undertaken in accordance with the
regulations
(5) Section 8B(6)(b)—delete "to which its operation is extended by
regulation" and substitute:
that provide health, welfare, education, sporting or recreational,
religious or spiritual, child care or residential services wholly or partly for
children
(6) Section 8B(7)—delete subsection (7) and substitute:
(7) Regulations made for the purposes of this section may (without
limitation)—
(a) prescribe the manner in which an assessment of a person's criminal
history may be undertaken; and
(b) make provision in relation to the use of information relating to a
person's criminal history received from another jurisdiction; and
(c) make provision in relation to confidentiality of information relating
to a person's criminal history; and
(d) prescribe fees and provide for their waiver or remission;
and
(e) prescribe penalties, not exceeding $10 000, for offences against the
regulations.
(7) Section 8B(8), definition of employment—delete
"and employer includes an organisation or person for whom the
functions are performed;"
(8) Section 8B(8), definition of government
organisation—delete the definition
(9) Section 8B(8), definition of non-government
organisation—delete the definition
(10) Section 8B(8), definition of prescribed functions,
(a)—after "regular basis" insert:
, unless the contact or work is directly supervised at all times
(11) Section 8B(8), definition of prescribed functions,
(c)—after "records" insert:
of a kind prescribed by regulation
(12) Section 8B(8), definition of relevant
employment—delete the definition
(13) Section 8B(8), definition of responsible authority,
(b)—delete "to which this section applies"
8—Amendment of
section 8C—Obligations of certain organisations
(1) Section 8C(1)—delete "An organisation to which this section
applies must, as soon as practicable following the formation of the
organisation, or, in the case of an organisation in existence when this section
comes into operation, as soon as possible following the prescribed date,
establish" and substitute:
Subject to subsection (1a), an organisation to which this section applies
must have in place
(2) Section 8C—after subsection (1) insert:
(1a) An organisation formed after the commencement of this subsection must
have policies and procedures in place as required under subsection (1) as soon
as practicable following the formation of the organisation.
(3) Section 8C(2)(b)—delete paragraph (b) and substitute:
(b) must comply with any requirements prescribed in the
regulations.
(4) Section 8C(3)—delete subsection (3) and substitute:
(3) An organisation to which this section applies must—
(a) within 10 days after putting in place policies and procedures as
required under subsection (1), lodge with the Chief Executive a statement
setting out the policies and procedures; and
(b) respond, as soon as reasonably practicable (and in any case within 10
business days), to any written request by the Chief Executive for information
relating to the organisation's compliance with the requirements of this
section.
Maximum penalty: $5 000.
(4) This section applies to government and non-government organisations
that provide health, welfare, education, sporting or recreational, religious or
spiritual, child care or residential services wholly or partly for
children.
After section 8C insert:
8D—Exemptions etc
(1) The regulations may exempt organisations, persons and positions, or
particular classes of organisations, persons and positions, from the application
of this Division or from specified provisions of this Division.
(2) The regulations may, for transitional purposes—
(a) provide that this Division, or specified provisions of this Division,
will not apply in relation to an organisation, person or position, or a class of
organisation, person or position, until a specified day; or
(b) modify the application of this Division, or provisions of this
Division, in relation to an organisation, person or position, or a class of
organisation, person or position, until a specified day.
(3) Subsection (2) is in addition to, and does not derogate from,
subsection (1).
10—Amendment of
section 11—Notification of abuse or neglect
(1) Section 11(2)(j)—delete "a Government department, agency or
instrumentality, or a local government or nongovernment organisation," and
substitute:
a government or non-government organisation
(2) Section 11—after subsection (5) insert:
(6) A person must not threaten or intimidate, or cause damage, loss or
disadvantage to, a person to whom this section applies because the person has
discharged, or proposes to discharge, his or her duty under subsection
(1).
Maximum penalty: $10 000.
11—Amendment of
section 16—Power to remove children from dangerous
situations
Section 16—after subsection (5) insert:
(6) The power to remove a child under this section is in addition to, and
does not derogate from, the powers of an authorised police officer under section
51(4).
12—Substitution of
heading to Part 7A
Heading to Part 7A—delete the heading and substitute:
Part 7A—The Guardian, the Youth Advisory Committee
and the Charter
Division 1—The Guardian
13—Amendment of
section 52A—The Guardian
(1) Section 52A(4)—after paragraph (d) insert:
(da) becomes bankrupt or applies as a debtor to take the benefit of the
laws relating to bankruptcy; or
(db) becomes, in the opinion of the Governor, mentally or physically
incapable of carrying out satisfactorily the duties of office; or
(dc) becomes a member of the Parliament of this State or any other State
of the Commonwealth or of the Commonwealth or becomes a member of a Legislative
Assembly of a Territory of the Commonwealth; or
(2) Section 52A(5) to (8)—delete subsections (5) to (8) (inclusive)
and substitute:
(5) The Governor may remove the Guardian from office on the presentation
of an address from both Houses of Parliament seeking the Guardian's
removal.
(6) The Governor may suspend the Guardian from office on the ground of
incompetence or misbehaviour and, in that event—
(a) a full statement of the reason for the suspension must be laid before
both Houses of Parliament within 3 sitting days of the suspension; and
(b) if, at the expiration of 1 month from the date on which the statement
was laid before Parliament, an address from both Houses of Parliament seeking
the Guardian's removal has not been presented to the Governor, the Guardian must
be restored to office.
(7) Except as provided by this section, the Guardian may not be removed or
suspended from office, nor will the office of the Guardian become
vacant.
After section 52A insert:
52AB—Independence
(1) In performing and exercising his or her functions and powers under
this Act, the Guardian must act independently, impartially and in the public
interest.
(2) The Minister cannot control how the Guardian is to exercise the
Guardian's statutory functions and powers and cannot give any direction with
respect to the content of any report prepared by the Guardian.
Note—
This provision does not derogate from any express power of the Minister
under this Act.
15—Amendment of
section 52C—The Guardian's functions and powers
(1) Section 52C(1)(b)—after "the Minister" insert:
and, in particular, for any such child who has suffered, or is alleged to
have suffered, sexual abuse
(2) Section 52C(4)—delete subsection (4)
After section 52C insert:
52CA—Use and obtaining of
information
(1) A government or non-government organisation that is involved in the
provision of services to children must, at the Guardian's request, provide the
Guardian with information relevant to the performance of the Guardian's
functions.
(2) If the Guardian has reason to believe that a person is capable of
providing information or producing a document that may be relevant to the
performance of the Guardian's functions, the Guardian may, by notice in writing
provided to the person, require the person to do 1 or more of the
following:
(a) to provide that information to the Guardian in writing signed by that
person or, in the case of a body corporate, by an officer of the body
corporate;
(b) to produce that document to the Guardian;
(c) to attend before a person specified in the notice and answer relevant
questions or produce relevant documents.
(3) A notice under subsection (2) is to specify the period within
which, or the time, day and place at which, the person is required to provide
the information or document, or to attend.
(4) A notice under subsection (2) must provide a period of time for
compliance with a requirement under that subsection that has been determined by
the Guardian to be reasonable in the circumstances.
(5) A person must comply with a requirement under
subsection (2).
Maximum penalty: $5 000.
(6) If a document is produced in accordance with a requirement under this
section, the Guardian may take possession of, make copies of, or take extracts
from, the document.
After section 52D insert:
52DA—Other reports
(1) The Guardian may, at any time, prepare a report to the Minister on any
matter arising out of the exercise of the Guardian's functions under this
Act.
(2) The Minister must—
(a) if Parliament is sitting—have copies of a report received under
this section laid before both Houses of Parliament within 6 sitting days;
or
(b) if Parliament is not sitting—deliver copies of the report to the
President of the Legislative Council and the Speaker of the House of Assembly so
that they may—
(i) immediately cause the report to be published; and
(ii) lay the report before their respective Houses at the earliest
opportunity.
(3) A report will, when published under subsection (2)(b)(i), be
taken for the purposes of any other Act or law to be a report of the Parliament
published under the authority of the Legislative Council and the House of
Assembly.
18—Insertion of
Part 7A Divisions 2 to 4
After section 52E insert:
Division 2—Youth Advisory
Committee
52EA—Youth Advisory Committee
(1) The Guardian must establish and maintain a Youth Advisory
Committee.
(2) Subject to subsection (3), membership of the Committee is to be
determined by the Guardian.
(3) The Committee is to include children who are, or have been, under the
guardianship, or in the custody, of the Minister.
(4) The Committee's primary function is to assist the Guardian in the
performance of the Guardian's functions by ensuring that the Guardian is aware
of the experiences of, and receives advice from, children who are, or have been,
under the guardianship, or in the custody, of the Minister.
(5) The Committee has such other functions as are assigned to the
Committee by the Guardian.
(6) The Guardian may consult the committee, or members of the committee,
as the Guardian thinks fit.
(7) The Committee will, subject to direction by the Guardian as to the
procedures it is to adopt, determine its own procedures.
Division 3—Charter of Rights for Children and Young
People in Care
52EB—Development of Charter
(1) The Guardian must develop a draft Charter of Rights for Children
and Young People in Care.
(2) The Guardian must, in developing the draft Charter, have regard to the
fact that the State Government is responsible for the care and wellbeing of
children who are under the guardianship, or in the custody, of the
Minister.
(3) The draft must be presented to the Minister within 12 months following
the commencement of this Division or within such longer period as the Minister
may allow.
52EC—Review of Charter
The Guardian—
(a) may review the Charter at any time; and
(b) must review the Charter at least every 5 years.
52ED—Consultation
In developing or reviewing the Charter, the Guardian must invite
submissions from, and consult with, to such extent as may be reasonable,
interested persons (including persons who are, or have been, under the
guardianship, or in the custody, of the Minister) with a view to obtaining a
wide range of views in relation to the matters under consideration.
52EE—Approval of Charter
(1) The Minister may, on the receipt of a draft Charter or a variation of
the Charter from the Guardian—
(a) approve the Charter or the variation; or
(b) require an alteration to the Charter or the variation, after
consultation with the Guardian, and then approve the Charter or variation as
altered.
(2) The Minister must then cause a copy of the Charter or variation (as
the case may be) to be laid before both Houses of Parliament.
52EF—Obligations of persons involved with children
in care
(1) A person exercising functions or powers under a relevant law must, in
any dealings with, or in relation to, a child who is under the guardianship, or
in the custody, of the Minister, have regard to, and seek to implement to the
fullest extent possible, the terms of the Charter.
(2) However, the Charter cannot create legally enforceable rights or
entitlements.
(3) In this section—
relevant law means—
(a) this Act; or
(b) the Family and Community Services Act 1972; or
(c) any law relating to the detention of a youth in a training
centre.
Division 4—Offences
52EG—Offence relating to
intimidation
A person must not persuade or attempt to persuade by threat or intimidation
another person—
(a) to fail to cooperate with the Guardian in the performance or exercise
of the Guardian's powers or functions under this Act; or
(b) to fail to provide information or a document to the Guardian as
authorised or required under this Act; or
(c) to provide information or a document that is false or misleading in a
material particular, or to provide information or a document in a manner that
will make the information or document false or misleading in a material
particular, to the Guardian under this Act.
Maximum penalty: $10 000.
52EH—Offence relating to
reprisals
(1) A person must not treat another person unfavourably on the ground that
a person—
(a) has cooperated with the Guardian in the performance or exercise of
powers or functions under this Act; or
(b) has provided information or documents to the Guardian as authorised or
required under this Act,
or on the ground that he or she knows that a person intends to do either of
these things, or suspects that a person has done, or intends to do, either of
these things.
Maximum penalty: $10 000.
(2) It is sufficient for a contravention of subsection (1) if the
ground specified in subsection (1) is a significant factor in inducing the
person to take the particular action against the other person.
(3) Unfavourable treatment on the ground that a person—
(a) has made a false allegation; or
(b) has not acted in good faith,
does not constitute a contravention of subsection (1).
52EI—Offence relating to obstruction
etc
A person must not, without reasonable excuse, obstruct, hinder, resist or
improperly influence, or attempt to obstruct, hinder, resist or improperly
influence, the Guardian in the performance or exercise of a function or power
under this Act.
Maximum penalty: $10 000.
52EJ—Offence relating to the provision of
information
A person must not—
(a) provide to the Guardian information that the person knows is false or
misleading in a material particular; or
(b) refuse or fail to include in information provided to the Guardian
other information without which the information provided is, to the knowledge of
the person, false or misleading in a material particular.
Maximum penalty: $10 000.
19—Amendment of
section 63—Regulations
Section 63—after subsection (2) insert:
(3) Regulations under this Act may—
(a) be of general or limited application; and
(b) make different provision according to the matters or circumstances to
which they are expressed to apply; and
(c) provide that a matter or thing in respect of which regulations may be
made is to be determined according to the discretion of the Chief Executive (or
a delegate of the Chief Executive); and
(d) refer to or incorporate, wholly or partially and with or without
modification, a code, standard or other document prepared or published by a
prescribed person or body, either as in force at the time the regulations are
made or as in force from time to time.
After section 63 insert:
Schedule 1—Transitional
provisions
1—Responsible authority to obtain criminal
history
(1) If an organisation to which section 8B of this Act applies immediately
after the commencement of section 7 of the Children's Protection
(Implementation of Report Recommendations) Amendment Act 2009 was not an
organisation to which section 8B applied immediately before that
commencement, the responsible authority for the organisation must ensure that,
during the period prescribed by regulation in relation to the organisation or
organisations of that class, an assessment of the criminal history of each
person occupying or acting in a prescribed position (whether as an employee,
volunteer, agent, contractor or subcontractor) in the organisation is undertaken
in accordance with the regulations.
Maximum penalty: $10 000.
(2) The regulations may exempt organisations, persons and positions, or
particular classes of organisations, persons and positions, from the application
of this clause.
(3) In this clause, terms used have meanings consistent with the meanings
they have in section 8B.
Part 1—Amendment of Health and Community
Services Complaints Act 2004
1—Amendment of
section 24—Who may complain
Section 24(b) and (c)—delete paragraphs (b) and (c) and
substitute:
(b) if the health or community service user is a child—
(i) the child; or
(ii) if the child has attained the age of 16 years—a person
appointed by the child to make the complaint on the child's behalf; or
(iii) if the child has not attained the age of 16 years—a parent or
guardian of the child; or
2—Amendment of
section 27—Time within which a complaint may be made
Section 27(2)—delete subsection (2) and substitute:
(2) The Commissioner may extend the period under subsection (1) in a
particular case—
(a) if satisfied that it is appropriate to do so after taking into
account—
(i) whether a proper investigation of the complaint should still be
possible; and
(ii) whether the complaint should still be amenable to resolution under
the provisions of this Act; and
(iii) whether it would be in the public interest to entertain the
complaint; and
(iv) any other matter considered relevant by the Commissioner;
or
(b) if—
(i) the complaint relates to the provision of a health or community
service to a child; and
(ii) the complainant first had notice of the circumstances giving rise to
the complaint after May 2004.