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TASMANIA
__________
CHILDREN, YOUNG PERSONS AND THEIR
FAMILIES AMENDMENT BILL 2009
__________
CONTENTS
1. Short title
2. Commencement
3. Principal Act
4. Section 3 amended (Interpretation)
5. Section 13 amended (Responsibility to prevent abuse or neglect
or certain behaviour)
6. Section 14 amended (Informing of concern about abuse or
neglect or certain behaviour)
7. Section 15 substituted
15. Protection from liability for voluntary or mandatory
information
8. Section 16 amended (Confidentiality of person informing of
knowledge, belief or suspicion of abuse or neglect or certain
behaviour)
9. Section 17 substituted
17. Secretary not obliged to take action in certain
circumstances
10. Section 17A inserted
17A. Secretary may refer notification
11. Section 18 amended (Assessment by Secretary)
12. Section 42 amended (Care and protection order)
[Bill 12]-VI
13. Section 48 amended (Variation, revocation, suspension and end
of care and protection order or interim care and protection order)
14. Section 49 amended (Effect of and limitations on care and
protection order or interim care and protection order)
15. Parts 5A and 5B inserted
PART 5A - Information sharing
53A. Interpretation
53B. Secretary and information-sharing entities may
provide information
PART 5B - Community-Based Intake Service
53C. Interpretation
53D. Community-Based Intake Service
53E. Functions of a Community-Based Intake Service
53F. CBIS guidelines
16. Section 71 amended (Review of circumstances of child under
long-term guardianship of Secretary)
17. Section 79 amended (Functions of Commissioner)
18. Section 110A inserted
110A. Department may provide support
19. Sections 111A and 111B inserted
111A. Access to information under Freedom of Information
Act 1991
111B. Application of Personal Information Protection Act
2004
2
CHILDREN, YOUNG PERSONS AND THEIR
FAMILIES AMENDMENT BILL 2009
(Brought in by the Minister for Health, the Honourable
Larissa Tahireh Giddings)
A BILL FOR
An Act to amend the Children, Young Persons and Their
Families Act 1997
Be it enacted by His Excellency the Governor of Tasmania, by
and with the advice and consent of the Legislative Council and
House of Assembly, in Parliament assembled, as follows:
1. Short title
This Act may be cited as the Children, Young
Persons and Their Families Amendment Act
2009.
2. Commencement
The provisions of this Act commence on a day
or days to be proclaimed.
[Bill 12] 3
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 3
3. Principal Act
In this Act, the Children, Young Persons and
Their Families Act 1997* is referred to as the
Principal Act.
4. Section 3 amended (Interpretation)
Section 3(1) of the Principal Act is amended as
follows:
(a) by inserting the following definition after
the definition of "committee":
"Community-Based Intake Service"
means an organisation that has
entered into an agreement with
the Secretary under section 53D;
(b) by inserting the following definition after
the definition of "interim care and
protection order":
"information-sharing entity"
means -
(a) a prescribed person within
the meaning of
section 14(1); or
(b) a State Service officer or
State Service employee
employed in or for the
*No. 28 of 1997
4
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 4
purposes of the
Department or another
department, within the
meaning of the
Administrative
Arrangements Act 1990;
or
(c) a manager of a private
medical establishment,
within the meaning of the
Hospitals Act 1918; or
(d) a controlling authority of
an approved hospital,
assessment centre or
secure mental health unit,
within the meaning of the
Mental Health Act 1996;
or
(e) the person in charge of an
organisation that is a
service provider within
the meaning of the
Disability Services Act
1992 that receives
funding under a funding
agreement within the
meaning of that Act to
provide disability services
to a child; or
(f) the person in charge of an
organisation that receives
5
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 5
funding from the
Secretary under a funding
agreement to provide drug
or alcohol treatment
services; or
(g) the person in charge of an
organisation that receives
a referral from the
Secretary or a
Community-Based Intake
Service; or
(h) any other person or
organisation prescribed in
the regulations;
(c) by inserting the following definition after
the definition of "Secretary":
"significant person" means a person
who is considered significant in
the life of a child by -
(a) the Secretary or his or her
nominee; or
(b) the guardian of the child;
5. Section 13 amended (Responsibility to prevent
abuse or neglect or certain behaviour)
Section 13 of the Principal Act is amended as
follows:
6
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 5
(a) by inserting the following subsection
after subsection (1):
(1A) If, while a woman is pregnant, an
adult knows, or believes or
suspects on reasonable grounds,
that the child of that pregnancy
once born -
(a) is reasonably likely to
suffer abuse or neglect; or
(b) is reasonably likely to
require medical treatment
or other intervention as a
result of the behaviour of
the woman, or another
person with whom the
woman resides or is likely
to reside, before the birth
of the child -
that adult has a responsibility to
take steps to prevent the
occurrence of that abuse or
neglect or that behaviour.
(b) by omitting subsection (2) and
substituting the following subsection:
(2) One step the adult may take to
prevent the occurrence of abuse
or neglect of a child, or behaviour
referred to in subsection (1A)(b),
is to inform the Secretary or a
7
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 6
Community-Based Intake Service
of -
(a) his or her knowledge,
belief or suspicion; and
(b) the basis of that
knowledge, belief or
suspicion.
6. Section 14 amended (Informing of concern about
abuse or neglect or certain behaviour)
Section 14 of the Principal Act is amended as
follows:
(a) by omitting from subsection (2)(b)
"resides -" and substituting "resides; or";
(b) by inserting the following paragraph after
paragraph (b) in subsection (2):
(c) while a woman is pregnant, that
there is a reasonable likelihood
that after the birth of the child -
(i) the child will suffer abuse
or neglect, or may be
killed by a person with
whom the child is likely
to reside; or
(ii) the child will require
medical treatment or other
intervention as a result of
8
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 7
the behaviour of the
woman, or another person
with whom the woman
resides or is likely to
reside, before the birth of
the child -
(c) by inserting in subsection (2) "or a
Community-Based Intake Service" after
"Secretary";
(d) by inserting in subsection (3) "or a
Community-Based Intake Service" after
"Secretary";
(e) by inserting in subsection (4) "or a
Community-Based Intake Service" after
"inform the Secretary";
(f) by inserting in subsection (5) "or a
Community-Based Intake Service" after
"Secretary";
(g) by inserting in subsection (6)(a) "or a
Community-Based Intake Service" after
"Secretary".
7. Section 15 substituted
Section 15 of the Principal Act is repealed and
the following section is substituted:
9
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 7
15. Protection from liability for voluntary or
mandatory information
(1) This section applies to a person who
voluntarily, or as required by section 14
or section 18(3), informs the Secretary or
a Community-Based Intake Service -
(a) that he or she knows, or believes
or suspects on reasonable
grounds, that a child has been or
is being abused or neglected or
that there is a reasonable
likelihood of a child being killed
or abused or neglected; or
(b) while a woman is pregnant, that
he or she knows, or believes or
suspects on reasonable grounds,
that there is a reasonable
likelihood that after the birth of
the child -
(i) the child will suffer abuse
or neglect, or will be
killed by a person with
whom the child is likely
to reside; or
(ii) the child will require
medical treatment or other
intervention as a result of
the behaviour of the
woman, or another person
with whom the woman
10
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 8
resides, before the birth of
the child; or
(c) of any further information in
respect of such knowledge, belief
or suspicion.
(2) A person -
(a) cannot, by virtue of informing the
Secretary or a Community-Based
Intake Service as specified in
subsection (1), be held to have
breached any code of professional
etiquette or ethics, to have
departed from any accepted
standards of professional conduct
or to have contravened any Act;
and
(b) to the extent that he or she has
acted in good faith, incurs no
civil or criminal liability in
respect of informing the Secretary
or a Community-Based Intake
Service as specified in
subsection (1).
8. Section 16 amended (Confidentiality of person
informing of knowledge, belief or suspicion of abuse
or neglect or certain behaviour)
Section 16(1) of the Principal Act is amended as
follows:
11
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 9
(a) by omitting the definition of
"notification" and substituting the
following definition:
"notification" means information as
specified in section 15(1) from a
person to whom section 15
applies;
(b) by inserting "or a Community-Based
Intake Service" after "Secretary" in the
definition of "notifier".
9. Section 17 substituted
Section 17 of the Principal Act is repealed and
the following section is substituted:
17. Secretary not obliged to take action in
certain circumstances
(1) In this section -
"notification" means information as
specified in section 15(1) from a
person to whom section 15
applies.
(2) Nothing in this Act requires the Secretary
or a Community-Based Intake Service to
take or initiate any action under this Act
in respect of a notification if the
Secretary or a Community-Based Intake
Service is satisfied -
12
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 10
(a) that the information or
observations on which the
notification was based were not
sufficient to constitute reasonable
grounds for the belief or
suspicion contained in the
notification; or
(b) that, while there are reasonable
grounds for the notification,
proper arrangements exist for the
care and protection of the child,
and the matter of the apparent
abuse or neglect or the likelihood
of the child being killed or abused
or neglected has been or is being
adequately dealt with; or
(c) that no further action is required
in respect of the notification.
10. Section 17A inserted
After section 17 of the Principal Act, the
following section is inserted in Part 3:
17A. Secretary may refer notification
The Secretary may refer a notification
received by the Secretary to a
Community-Based Intake Service if
satisfied that the Community-Based
Intake Service is an appropriate
13
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 11
organisation to take action in respect of
the notification.
11. Section 18 amended (Assessment by Secretary)
Section 18 of the Principal Act is amended by
inserting after subsection (2) the following
subsections:
(3) For the purposes of an assessment, the
Secretary may require, by written notice,
any person the Secretary considers may
have information relevant to the safety,
welfare or wellbeing of the child to
provide the Secretary with a report on
one or more of the following:
(a) the child;
(b) the child's guardian;
(c) a significant person in the child's
life;
(d) another person with whom the
child resides.
(4) For the purposes of subsection (3),
information relevant to the safety,
welfare or wellbeing of the child may
include, but is not limited to -
(a) medical information on the child,
the child's guardian, a significant
person in the child's life or
14
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 12
another person with whom the
child resides; or
(b) information relating to the family
circumstances of the child in the
past or present, or as proposed or
anticipated for the future.
(5) If a person provides an oral report to the
Secretary under subsection (3), the
Secretary may require the person to
provide the Secretary with a written
version of the report as soon as
practicable after the oral report is
provided.
(6) A person must comply with a
requirement under subsection (3) or (5).
Penalty: Fine not exceeding 5 penalty
units.
12. Section 42 amended (Care and protection order)
Section 42 of the Principal Act is amended as
follows:
(a) by omitting paragraphs (c) and (d) from
subsection (4) and substituting the
following paragraphs:
(c) an order placing the child, for a
specified period not exceeding 12
months, under the guardianship
of -
15
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 12
(i) the Secretary; or
(ii) one or 2 other persons;
(d) an order placing the child, until
the child attains 18 years of age,
under the guardianship of -
(i) the Secretary; or
(ii) one or 2 other persons;
(b) by inserting the following subsection
after subsection (5):
(6) The Court may not make an order
under subsection (4)(d) unless
satisfied that -
(a) all reasonable steps have
been taken to provide the
services required to
enable the child's
protection and care needs
to be met within the home
of a parent or other
existing guardian of the
child; and
(b) the person proposed as
guardian -
(i) is suitable to have
guardianship of
the child, having
regard to any
16
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 13
prescribed
matters; and
(ii) is willing and able
to assume
guardianship of
the child; and
(c) the wishes and feelings of
the child have been duly
considered, having regard
to the age, understanding
and maturity of the child;
and
(d) the wishes of the parents
in respect of any
prescribed matters
referred to in
paragraph (b)(i) have
been duly considered; and
(e) no other order, apart from
the order considered,
would be in the best
interests of the child.
13. Section 48 amended (Variation, revocation,
suspension and end of care and protection order or
interim care and protection order)
Section 48(1) of the Principal Act is amended as
follows:
17
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 14
(a) by omitting from paragraph (a) "a person
who was a party to the application for the
order" and substituting "the Secretary or
a person granted guardianship or custody
by the order";
(b) by inserting the following paragraph after
paragraph (a):
(ab) may be varied or revoked by the
Court on the application of a
former guardian of the child or a
person who was party to the
application for the order, other
than a person referred to in
paragraph (a), if -
(i) circumstances have
changed since the order
was made; and
(ii) the application is made
with the leave of the
Court; and
14. Section 49 amended (Effect of and limitations on
care and protection order or interim care and
protection order)
Section 49 of the Principal Act is amended as
follows:
(a) by omitting subsection (4);
18
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
(b) by omitting from subsection (5)
"subsection (4)" and substituting
"section 42(6)".
15. Parts 5A and 5B inserted
After section 53 of the Principal Act, the
following Parts are inserted:
PART 5A - INFORMATION SHARING
53A. Interpretation
In this Part -
"relevant person" means a person in
respect of whom -
(a) the Secretary or a Community-
Based Intake Service has received
information under this Act; or
(b) an assessment order is in force; or
(c) a care and protection order is in
force.
53B. Secretary and information-sharing entities
may provide information
(1) The Secretary may do either or both of
the following:
19
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
(a) provide an information-sharing
entity with information relating to
the safety, welfare or wellbeing
of a relevant person;
(b) require an information-sharing
entity to provide, to the Secretary,
information relating to the safety,
welfare or wellbeing of a relevant
person.
(2) An information-sharing entity required to
provide information to the Secretary
under subsection (1)(b) must, within the
period specified by the Secretary -
(a) provide the information; or
(b) if the information-sharing entity
does not have the information,
provide the Secretary with written
notice that it cannot provide the
information for that reason.
Penalty: Fine not exceeding 5 penalty
units.
(3) An information-sharing entity may do
either or both of the following if satisfied
that information in its possession relates
to the safety, welfare or wellbeing of a
relevant person:
(a) provide the Secretary with the
information, whether or not the
20
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
Secretary has required the
information to be provided;
(b) provide another information-
sharing entity with the
information if that entity is
involved with, or is likely to be
involved with, the relevant person
or a significant person to the
relevant person.
(4) A person providing information under
this section -
(a) cannot, by virtue of providing the
information, be held to have
breached any code of professional
etiquette or ethics, to have
departed from any accepted
standards of professional conduct
or to have contravened any Act;
and
(b) to the extent that he or she has
acted in good faith, incurs no
civil or criminal liability in
respect of providing the
information.
21
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
PART 5B - COMMUNITY-BASED INTAKE SERVICE
53C. Interpretation
In this Part -
"CBIS guidelines" means guidelines
issued by the Secretary under
section 53F.
53D. Community-Based Intake Service
(1) The Secretary may enter into an
agreement with an organisation for the
carrying out of the functions of a
Community-Based Intake Service.
(2) The agreement is to specify -
(a) the terms of the agreement; and
(b) any functions to be provided by
the organisation under the
agreement that are in addition to
the functions set out in
section 53E(1); and
(c) that the Community-Based Intake
Service must comply with the
CBIS guidelines; and
(d) any other matter considered by
the Secretary to be appropriate.
22
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
(3) The Secretary may revoke the agreement
if satisfied that the Community-Based
Intake Service is not -
(a) complying with the agreement; or
(b) adequately performing the
functions of a Community-Based
Intake Service set out in
section 53E(1); or
(c) complying with the CBIS
guidelines.
(4) Except as otherwise specified in the
agreement, the agreement does not
limit -
(a) the services that may be provided
by the Community-Based Intake
Service; or
(b) other functions and powers that
the Community-Based Intake
Service may perform and
exercise.
53E. Functions of a Community-Based Intake
Service
(1) A Community-Based Intake Service has
the following functions:
(a) providing a referral service for
children and their families that -
23
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
(i) is readily accessible; and
(ii) enables early intervention
in support of families;
(b) receiving referrals from the
Secretary under section 17A;
(c) undertaking preliminary
inquiries, in accordance with the
CBIS guidelines, to determine -
(i) whether a child is at risk
or in need; and
(ii) whether a child, once
born, is likely to be at risk
or in need; and
(iii) the most appropriate
person or organisation to
receive a referral from the
Community-Based Intake
Service;
(d) making referrals to other persons
and organisations who provide
services relevant to children and
their families;
(e) providing the Secretary, in
accordance with the CBIS
guidelines, with a record of each
determination of risk or need
made under paragraph (c)(i) or
24
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
(ii) and each referral made under
paragraph (d);
(f) cooperating with other persons
and organisations providing
services to a child;
(g) any other prescribed function.
(2) A Community-Based Intake Service may
have any other additional function
specified in the agreement referred to in
section 53D.
53F. CBIS guidelines
(1) The Secretary may issue guidelines in
respect of the administration, procedures
and practices of a Community-Based
Intake Service.
(2) The guidelines may -
(a) authorise any matter to be from
time to time determined, applied
or regulated by any person
specified in the guidelines; and
(b) adopt, apply or incorporate, either
wholly or in part and with or
without modification, and either
specifically or by reference, any
document as in force from time to
time, whether or not the
document is published or issued
25
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 15
before or after the guidelines take
effect.
(3) The Secretary may amend or revoke any
guidelines issued under this section and
is to notify the Community-Based Intake
Service of the amendment or revocation
within 10 days after the amendment or
revocation is made.
(4) An amendment or revocation of
guidelines under subsection (3) is to take
effect -
(a) on the date specified by the
Secretary in the amendment or
revocation; or
(b) if no date is so specified, 10 days
after the amendment or
revocation is made.
(5) The Secretary must ensure that the
guidelines are made available to a
Community-Based Intake Service on its
request.
(6) Guidelines issued under this section -
(a) are not statutory rules for the
purposes of the Rules Publication
Act 1953; and
(b) are not subordinate legislation for
the purposes of the Subordinate
Legislation Act 1992.
26
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 16
(7) The Acts Interpretation Act 1931 applies
to the interpretation of the guidelines as
if the guidelines were by-laws.
16. Section 71 amended (Review of circumstances of
child under long-term guardianship of Secretary)
Section 71 of the Principal Act is amended as
follows:
(a) by omitting from subsection (1) "placing
the child under the guardianship of the
Secretary until the child reaches 18 years
of age";
(b) by inserting in subsection (1)(b) "or other
person named as guardian in the order"
after "Secretary";
(c) by omitting paragraph (c) from
subsection (3) and substituting the
following paragraph:
(c) each person who was a guardian
of the child immediately before
the order to which the
determination relates was made;
and
(d) by inserting the following paragraph after
paragraph (d) in subsection (3):
(da) any person the Secretary
considers appropriate; and
27
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 17
17. Section 79 amended (Functions of Commissioner)
Section 79(1) of the Principal Act is amended by
inserting after paragraph (f) the following
paragraphs:
(fa) on the Commissioner's own initiative or
on the request of the Minister, to act as
an advocate for a detainee under the
Youth Justice Act 1997;
(fb) to advise the Minister on any matter
relating to the health, welfare, education,
care, protection and development of
detainees under the Youth Justice Act
1997;
18. Section 110A inserted
After section 110 of the Principal Act, the
following section is inserted in Division 2:
110A. Department may provide support
The Department may offer, arrange,
promote or facilitate education programs,
support services and referrals that are in
the interests and welfare of children
whether born or unborn.
28
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 19
19. Sections 111A and 111B inserted
After section 111 of the Principal Act, the
following sections are inserted in Division 2:
111A. Access to information under Freedom of
Information Act 1991
(1) The Secretary or Community-Based
Intake Service must not provide
information under the Freedom of
Information Act 1991 if the information
has been provided under this Act to the
Secretary or Community-Based Intake
Service by an information-sharing entity.
(2) Nothing in this section prevents a person
from requesting, under the Freedom of
Information Act 1991, an information-
sharing entity that has provided
information to the Secretary or a
Community-Based Intake Service to
provide that information to the person.
111B. Application of Personal Information
Protection Act 2004
(1) The Personal Information Protection Act
2004 applies to information received and
provided under this Act to the extent that
it is not inconsistent with the provisions
of this Act.
(2) A Community-Based Intake Service is a
personal information custodian for the
29
Children, Young Persons and Their Families Amendment Act
2009
Act No. of
s. 19
purposes of the Personal Information
Protection Act 2004.
30 Government Printer, Tasmania