Children’s Guardian Act 2019 (NSW)

Children's Guardian Act 2019 No 25 An Act to make provision with respect to the office of the Children's Guardian; to provide for the functions of that office; to provide for the safety, welfare and wellbeing of children; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Children's Guardian Act 2019. 2 Commencement (1) Subject to subsection (2), this Act commences on 1 March 2020. (2) The following provisions commence on a day or days to be appointed by proclamation— (a) section 131, (b) section 132, (c) items 5–7 of Schedule 5.10. Part 2 Application and interpretation Division 1 Application of Act 3 Children to whom this Act applies The functions conferred or imposed by this Act and the regulations may be exercised in relation to children— (a) who ordinarily live in New South Wales, or (b) who do not ordinarily live in New South Wales but who are present in New South Wales, or (c) who are— (i) for Part 4—subject to an event or circumstance, whether occurring in New South Wales or elsewhere, that is committed by a person who is an employee of a relevant entity (within the meaning of Part 4) and that gives rise to a report (within the meaning of Part 4), or (ii) otherwise—subject to an event or circumstance occurring in New South Wales that gives rise to a report. Division 2 Interpretation 4 Definitions (1) The Dictionary in Schedule 6 defines certain terms used in this Act. Note— The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes and examples included in this Act do not form part of this Act. 5 References to "commencement" (1) In this Act, a reference to commencement for this Act or a provision of this Act is a reference to the time this Act or provision comes into operation. (2) In a provision of this Act, a reference to the commencement without indicating a particular Act or provision is a reference to the commencement of the provision in which the reference occurs. Part 3 Objects and principles 6 Main object of Act The main object of this Act is to protect children by providing for the role and functions of the office of the Children's Guardian, including— (a) promoting the quality of organisations and persons providing services to children, and (b) regulating those organisations and persons in providing those services, and (c) embedding the Child Safe Standards as the primary framework that guides child safe practice in organisations in New South Wales. 7 Paramount consideration The safety, welfare and wellbeing of children, including protecting children from child abuse, is the paramount consideration in decision-making under this Act and the regulations and in the operation of this Act and the regulations generally. 8 Guiding principles The guiding principles to be applied in administering this Act and the regulations are— (a) if a child is able to form views on a matter concerning the child's safety, welfare and wellbeing— (i) the child must be given an opportunity to express the views freely, and (ii) the views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, and (b) in all actions taken and decisions made under this Act and the regulations that significantly affect a child, account must be taken of the culture, disability, language, religion, gender identity and sexuality of— (i) the child, and (ii) if relevant, the person with parental responsibility for the child, and (c) in deciding what action is necessary to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and the child's family that is also consistent with the paramount consideration, and (d) in decision-making under this Act and the regulations and the investigation or monitoring of persons, the Children's Guardian must observe the principles of natural justice and ensure procedural fairness, and (e) in decision-making under this Act and the regulations in relation to an Aboriginal child or a Torres Strait Islander child— (i) the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles set out in the Children and Young Persons (Care and Protection) Act 1998, section 13, and (ii) the embedding of connection to family and community with the ultimate goal of the child feeling safe and secure in their identity, culture and community, and (e1) in decision-making under this Act, respect for cultural and social difference must be considered in the provision of child-related services, and (f) if a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment. Part 3A Child safe scheme Division 1 Preliminary 8A Objects of Part The objects of this Part are for the Children's Guardian to protect children from harm by— (a) adopting the Child Safe Standards as the primary framework that guides child safe practice, and (b) implementing regulatory approaches that— (i) improve systems for the prevention, identification, response to and reporting of child abuse in child safe organisations through the implementation of the Child Safe Standards, and (ii) assist child safe organisations to implement the Child Safe Standards by raising awareness and providing guidance, training and education, and (iii) monitor and report on the compliance of child safe organisations with the Child Safe Standards, and (iv) enforce compliance with the Child Safe Standards, and (v) provide for the investigation of complaints about a child safe organisation's— (A) implementation of the Child Safe Standards, or (B) compliance with the Child Safe Standards, or (C) compliance with recommendations contained in a monitoring assessment report, and (vi) establish child safe action plans with prescribed agencies, and (vii) provide for the ongoing exchange of information about risks to child safety in organisations between government agencies, both in New South Wales and in other States and Territories, with child safety responsibilities. 8AA Consistency with Royal Commission Report recommending the Child Safe Standards (1) Implementation of the Child Safe Standards by child safe organisations is to be consistent with Royal Commission recommendations. (2) Where a Child Safe Standard can be implemented in more than 1 way, implementation that most closely reflects the Royal Commission recommendations is to be preferred. 8AB Ministerial guidelines (1) The Minister may issue guidelines to the Children's Guardian about the way the Children's Guardian is to— (a) oversee the implementation of the Child Safe Standards by child safe organisations, (b) enforce the Child Safe Standards within child safe organisations, (c) establish child safe action plans with prescribed agencies. (2) Despite section 128(3), the Children's Guardian must, when exercising functions concerning the Child Safe Standards, act in a way that is consistent with guidelines issued by the Minister under subsection (1). 8AC Oversight by Committee on Children and Young People (1) The Committee on Children and Young People has the following functions under this Part— (a) to monitor and review the functions of the Children's Guardian in— (i) overseeing the implementation of the Child Safe Standards by child safe organisations, (ii) the enforcement of the Child Safe Standards within child safe organisations, (iii) establishing child safe action plans with prescribed agencies, (b) to review the activities of the Children's Guardian for consistency with the Royal Commission recommendations, (c) to review guidelines issued by the Minister under section 8AB(1) for consistency with the Royal Commission recommendations, (d) to report to both Houses of Parliament, with such comments as it thinks fit, on any matter which the Committee considers should be brought to the attention of Parliament relating to the following— (i) the exercise of the Children's Guardian's functions specified in paragraphs (a) and (b), (ii) guidelines issued by the Minister under section 8AB(1). (2) In this section— Committee on Children and Young People means the Parliamentary Joint Committee constituted under section 36(1) of the Advocate for Children and Young People Act 2014. 8B Definitions In this Part— child safe action plan—see section 8F. monitoring assessment report means a report issued by the Children's Guardian under section 8W. prescribed agency—see section 8G. related body, for a prescribed agency—see section 8H. religious body has the same meaning as in section 15A. Royal Commission recommendations means the Final Report Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse. Division 2 Child Safe Standards 8C Meaning of "Child Safe Standards" The Child Safe Standards are— 1. Child safety is embedded in organisational leadership, governance and culture. 2. Children participate in decisions affecting them and are taken seriously. 3. Families and communities are informed and involved. 4. Equity is upheld, and diverse needs are taken into account. 5. People working with children are suitable and supported. 6. Processes to respond to complaints of child abuse are child focused. 7. Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training. 8. Physical and online environments minimise the opportunity for abuse to occur. 9. Implementation of the Child Safe Standards is continuously reviewed and improved. 10. Policies and procedures document how the organisation is child safe. 8D Systems, policies and processes (1) The head of a child safe organisation must ensure the organisation implements the Child Safe Standards through systems, policies and processes which may include, but are not limited to, the following— (a) a statement of the organisation's commitment to child safety, (b) a child safe policy, (c) a code of conduct applying to the following— (i) employees, (ii) management, however described, (iii) contractors, (iv) volunteers, (d) a complaint management policy and procedure, (e) a human resources policy, (f) a risk management plan. (2) The head of a child safe organisation must ensure the organisation implements a reportable conduct policy that addresses the matters in section 54(2). (3) The head of a child safe organisation must ensure the systems, policies and processes implemented by the organisation are continuously reviewed and updated to reflect— (a) the Child Safe Standards, and (b) recommendations made to the organisation by the Children's Guardian in— (i) a monitoring assessment report under section 8W, or (ii) an investigation report under section 8Z, and (c) enforcement measures taken under Part 9A against the organisation by the Children's Guardian. 8DA Codes of practice (1) The regulations may prescribe codes of practice for the purposes of ensuring entities comply with the Child Safe Standards. (2) A code of practice may apply only to the following entities— (a) a designated agency, (b) an adoption service provider, (c) an entity providing specialised substitute residential care, (d) an entity prescribed by the regulations. (3) A code of practice must specify the entities to which it applies. (4) A code of practice for entities providing specialised substitute residential care must require each entity to complete, within the time specified in the code of practice, a self-assessment of the entity's compliance with the Child Safe Standards. (5) An entity that fails, without reasonable excuse, to complete the self-assessment within the time specified in the code of practice commits an offence. Maximum penalty—10 penalty units. (6) A code of practice may include the following— (a) the steps that must be taken to implement the Child Safe Standards, (b) the outcomes that will indicate compliance with the Child Safe Standards, (c) other matters relevant to compliance with the Child Safe Standards. (7) A code of practice that applies to a designated agency or an adoption service provider may also include steps that must be taken to obtain and maintain accreditation under this Act. (8) An entity must comply with a code of practice that applies to the entity. Note— This provision makes the code of practice a mandatory prescriptive requirement for compliance with the Child Safe Standards. (9) The failure by an entity to comply with a code of practice is grounds for the Children's Guardian to— (a) conduct an investigation under Division 6, and (b) following the investigation, if the Children's Guardian considers it appropriate—issue a compliance notice to the entity under Part 9A. 8E Children's Guardian may require information about systems, policies and processes (1) The Children's Guardian may, at any time by written notice, require the head of a child safe organisation to give the Children's Guardian, within the reasonable time stated in the notice but not less than 7 days, information about the organisation's systems, policies and processes under section 8D. (2) If the organisation does not, without reasonable excuse, give the Children's Guardian the information required under subsection (1), the Children's Guardian may— (a) commence an investigation under Division 6, and (b) publish the following on the Office of the Children's Guardian's website— (i) the name of the organisation, (ii) that the organisation has failed to provide the information required by the Children's Guardian under this section. Division 3 Child safe action plans 8F Meaning of "child safe action plan" A child safe action plan is a plan that contains the strategies a prescribed agency will take, both in the services it provides and with related bodies, to— (a) build awareness in the community about the importance of child safety in child safe organisations, and (b) build the capability of child safe organisations to implement the Child Safe Standards, and (c) improve the safety of children by implementing the Child Safe Standards. 8G Meaning of "prescribed agency" Prescribed agency means each of the following— (a) the Department of Communities and Justice, (b) the Office of Sport within the Department of Communities and Justice, (c) the Department of Education, (d) the NSW Education Standards Authority, (e) the Ministry of Health, (f) the Department of Planning, Industry and Environment, limited to functions undertaken by the Office of Local Government, (g) the Inspector of Custodial Services, (h) a NSW government agency prescribed by the regulations for the purposes of this section. 8H Meaning of "related body" Related body, for a prescribed agency, means a child safe organisation the prescribed agency funds or regulates. 8I Prescribed agencies to develop and implement plans (1) A prescribed agency must develop and implement a child safe action plan within— (a) 12 months of becoming a prescribed agency, or (b) a longer period approved in writing by the Children's Guardian. (2) A child safe action plan must cover the full scope of the agency's child related operations unless— (a) the Children's Guardian gives written approval for the agency to develop and implement an additional plan for a specified area of operations, and (b) the additional plan addresses only the parts of the agency's operations specified in the approval. 8J Consultation In developing its child safe action plan, a prescribed agency must— (a) consult with the Children's Guardian, and (b) consult with related bodies and any other entity or individual who, in the agency's opinion, is likely to be directly affected by the plan, and (c) if the agency or related bodies provide services to Aboriginal children—consult with 1 or more Aboriginal controlled entities of a class prescribed by the regulations for this section. 8K Plans to be submitted (1) A prescribed agency must submit its child safe action plan to the Children's Guardian for review and approval. (2) Following its review of an agency's plan, the Children's Guardian must— (a) approve the plan, or (b) provide comments to the agency recommending amendments to the plan that the Children's Guardian considers necessary before it can be approved. (3) Following its review of an agency's plan, the Children's Guardian may report publicly, whether by its annual report or another report, on the plan and its implementation. 8L Plans to be publicly available (1) Following approval of a prescribed agency's child safe action plan, the agency must make the plan publicly available— (a) on the agency's website, and (b) in another way prescribed by the regulations. (2) The Children's Guardian may, on the Office of the Children's Guardian's website, provide a link to an agency's child safe action plan. 8M Progress reports (1) If required to do so by written notice from the Children's Guardian, a prescribed agency must provide a progress report on the agency's implementation of its child safe action plan. (2) An agency's report is to include information that demonstrates how the agency is working with related bodies to— (a) build awareness in the community about the importance of child safety in child safe organisations, and (b) build the capability of related bodies to implement the Child Safe Standards, and (c) improve the safety of children by implementing the Child Safe Standards by related bodies. (3) A prescribed agency must provide its report to the Children's Guardian within— (a) 90 days of receiving the written notice, or (b) a longer period approved in writing by the Children's Guardian. 8N Annual reporting A prescribed agency must include in its annual reporting information prepared under the Government Sector Finance Act 2018— (a) a link to the agency's child safe action plan, and (b) the agency's assessment of the effectiveness of the plan in promoting and supporting the adoption and implementation of the Child Safe Standards by related bodies. 8O Child safe action plans to be remade (1) A prescribed agency must review and remake its child safe action plan at least every 4 years. (2) This Division applies to a remade plan in the same way as it applies to an original plan. Division 4 Capability building 8P Purpose This Division deals with the Children's Guardian's responsibility to work collaboratively with child safe organisations, government agencies and the broader community to— (a) raise awareness about child safety, and (b) build within child safe organisations both knowledge of the Child Safe Standards and the skills to implement them, and (c) promote the implementation of the Child Safe Standards by child safe organisations. 8Q Guidelines for child safe organisations (1) The Children's Guardian may develop guidelines to— (a) assist child safe organisations to implement the Child Safe Standards, and (b) assist children, their families and other members of the community to raise concerns and make complaints about a child safe organisation, and (c) provide guidance on another matter that the Children's Guardian identifies as appropriate. (2) A guideline developed under this section may include templates that can be used by child safe organisations in developing systems, policies and processes that implement the Child Safe Standards. (3) A guideline developed under this section must be published on the Office of the Children's Guardian's website. 8R Capability building for prescribed agencies (1) The Children's Guardian may develop and make publicly available— (a) guidelines, including templates, to assist prescribed agencies to develop child safe action plans, and (b) assessment criteria for child safe action plans. (2) A guideline developed under this section must be published on the Office of the Children's Guardian's website. 8S Training (1) The Children's Guardian may provide training on— (a) matters related to the implementation of the Child Safe Standards, and (b) other matters reasonably related to child safety and the functions of the Children's Guardian. (2) The Children's Guardian may charge fees for training activities to recover the reasonable costs incurred in providing the training. 8T Resources The Children's Guardian may develop and distribute other resources to promote the Child Safe Standards that the Children's Guardian considers appropriate. Division 5 Monitoring 8U Purpose of monitoring The Children's Guardian may monitor the operation of a child safe organisation to ensure the organisation is implementing the Child Safe Standards. 8V Children's Guardian may monitor implementation of Child Safe Standards (1) In monitoring a child safe organisation's implementation of the Child Safe Standards, the Children's Guardian may do the following— (a) review the organisation's systems, processes and policies, (b) request the head of the organisation to answer questions and provide specified information, (c) review information held by the Children's Guardian about the organisation and its employees, (d) with the consent of the head of the organisation, have an authorised person inspect the organisation's premises, (e) direct the head of the organisation to complete a self-assessment of the organisation's compliance with the Child Safe Standards, (f) a thing prescribed by the regulations for the purposes of this section. (2) If the Children's Guardian directs the head of a child safe organisation to complete a self-assessment under subsection (1)(e), the head of the organisation must comply with the direction. Maximum penalty—5 penalty units. (3) A direction under subsection (1)(e) must— (a) be in writing, and (b) specify the form of the self-assessment, and (c) specify the date, not less than 14 days after the date of the direction, by which the self-assessment must be completed and returned to the Children's Guardian. 8W Monitoring assessment reports (1) The Children's Guardian may, as part of its monitoring activities under section 8V, issue a monitoring assessment report to provide guidance and make recommendations to a child safe organisation. (2) If the Children's Guardian makes recommendations to an organisation in a monitoring assessment report, the organisation must respond to the recommendations within the period specified by the Children's Guardian, being a period of not less than 28 days after the issue of the report. Division 6 Investigation 8X When investigation may be conducted (1) The Children's Guardian may conduct an investigation into a child safe organisation's implementation of the Child Safe Standards. (2) Without limiting subsection (1), the Children's Guardian may conduct an investigation— (a) after receiving a complaint, however made or described, about the organisation, or (b) if the organisation fails to respond to a recommendation made by the Children's Guardian in a monitoring assessment report or the Children's Guardian is otherwise not satisfied with the way the organisation responds to a recommendation, or (c) if for any other reason the Children's Guardian is concerned the organisation is not implementing the Child Safe Standards. 8Y Conduct of investigation (1) Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of conducting an investigation under this Division. (2) Without limiting the powers of an authorised person, the Children's Guardian may, when conducting an investigation, do the following— (a) review the organisation's records, systems, processes and policies, (b) require the head of the organisation to answer questions and provide specified information, (c) review information held by the Children's Guardian about the organisation and its employees, (d) have an authorised person inspect the organisation's premises, (e) direct the head of the organisation to complete a self-assessment of the organisation's compliance with the Child Safe Standards, (f) a thing prescribed by the regulations for the purposes of this section. (3) For the purposes of an investigation under this Division, the Children's Guardian may conduct an inquiry. (4) Schedule 3 provides for the Children's Guardian's powers to make or hold an inquiry. (5) An inquiry under this Division must be carried out in the absence of the public. 8Z Investigation report (1) At the end of an investigation under this Division, the Children's Guardian must prepare a report that includes— (a) findings relating to the way the relevant child safe organisation implements the Child Safe Standards, and (b) the Children's Guardian's recommendations, if any, for improvement to the way the organisation implements the Child Safe Standards. (2) If, as a result of an investigation, the Children's Guardian decides to take enforcement measures under Part 9A, the report must include— (a) the decision, and (b) the reasons for the decision, and (c) the enforcement measures to be taken. (3) If the Children's Guardian makes recommendations to an organisation, the organisation must respond to the recommendations within the period, not less than 28 days after the investigation report is given to the organisation, specified by the Children's Guardian. Division 7 Children in specialised substitute residential care 8ZA Limit on time to be spent in specialised substitute residential care (1) A child must not remain in specialised substitute residential care for more than a total of 90 days in a period of 12 months unless the care is provided or supervised by a designated agency. (2) A child may remain in specialised substitute residential care for more than a total of 180 days in a period of 12 months only if the designated agency providing or supervising the care, or the Children's Guardian, has ensured there is a plan that addresses the child's needs under the arrangement. (3) A child who remains in specialised substitute residential care in contravention of subsection (1) or (2) is taken to be at risk of significant harm for the purposes of the Children and Young Persons (Care and Protection) Act 1998, Chapter 3, Parts 2 and 3. (4) In deciding whether the contravention is a significant contravention, the Children's Guardian must have regard to any relevant guidelines issued by the Secretary under section 175. 8ZB Notification of deaths of children in specialised substitute residential care If a child dies while in specialised substitute residential care, the principal officer of the entity providing the specialised substitute residential care must immediately give notice of the death to the following persons— (a) the parents of the child, if the parents can reasonably be located, (b) the Children's Guardian, (c) the Coroner. 8ZC Principal officer (1) In this Act, the principal officer of an entity providing specialised substitute residential care means the person who has the overall supervision of the entity's arrangements for providing specialised substitute residential care. (2) Anything done by, or with the approval of, the principal officer of an entity providing specialised substitute residential care in relation to specialised substitute residential care is, for this Act and the regulations, taken to be done by the entity. (3) Nothing in this section affects the personal liability of the principal officer. 8ZD Regulations Regulations may be made about specialised substitute residential care. Part 4 Reportable conduct Division 1 Preliminary 9 Objects of Part The objects of this Part are for the Children's Guardian to protect children from harm by— (a) administering a scheme to report and notify a reportable allegation or a conviction considered to be a reportable conviction to the head of a relevant entity and the Children's Guardian, and (b) providing oversight and guidance on an investigation undertaken by the head of a relevant entity, and (c) conducting investigations and inquiries into reports about reportable allegations and convictions considered to be reportable convictions and the response to, and handling of, reports by relevant entities, and (d) ensuring appropriate action is taken by a relevant entity, and (e) monitoring a relevant entity's systems for preventing, detecting and dealing with reportable conduct and reportable convictions, and (f) providing advice and education to relevant entities to assist relevant entities in detecting and dealing with reportable conduct and reportable convictions. 10 Definitions In this Part— assault see section 25. Children's Guardian report see section 49. complaint means— (a) a report given to the Children's Guardian under section 27(2)(b) or (3)(b), or (b) a complaint made to the Children's Guardian under section 28(1) or (2). contractor includes— (a) a subcontractor, and (b) an employee of, or volunteer for, the contractor, and (c) an employee of, or volunteer for, a third party employer. employee, of a relevant entity, see section 16. employment includes engagement of a person as a volunteer or contractor taken to be an employee under this Part. entity report see section 36(1). finding of reportable conduct see section 26. head, of a relevant entity, see section 17. ill-treatment, of a child, see section 23. investigation, of a matter, includes any preliminary or other inquiry into, or examination of, the matter, other than a preliminary inquiry under section 44. investigator means a person conducting an investigation on behalf of the head of a relevant entity, including a delegate. local government authority see section 15. neglect, of a child, see section 24. notification see section 29(2). public authority see section 14. relevant entity see section 12. religious body see section 15A. report means— (a) a report made to the head of a relevant entity under section 27(2)(a) or (3)(a), or (b) if the head of a relevant agency otherwise becomes aware of a matter under section 29(1)(b). reportable allegation see section 18. reportable conduct see section 20. reportable conduct scheme see section 11. reportable conviction see section 19. responsible Minister means— (a) for a relevant entity that is a government sector agency or a person employed in a government sector agency— (i)