New South Wales: 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) the Minister responsible for the agency, or (ii) if there is more than one Minister responsible for the agency, the Minister who, in the opinion of the Children's Guardian, is most nearly connected with the conduct of the agency, and (b) for a relevant entity that is a local government authority—the Minister administering the Local Government Act 1993, and (c) for a relevant entity, not referred to in paragraph (a) or (b), involved in the administration of an Act or part of an Act—the Minister administering the Act or the relevant part of the Act, and (d) for a Schedule 1 entity that is not referred to in paragraphs (a)–(c)— (i) the Minister whose portfolio has, in the opinion of the Children's Guardian, sufficient funding or regulatory responsibility for the entity to warrant involvement on the Minister's part in relation to the entity, or (ii) otherwise—the Minister who is, in the opinion of the Children's Guardian, a Minister sufficiently concerned with the conduct of the entity, and (e) for a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013—the Premier, and (f) for any other relevant entity—the Minister who, in the opinion of the Children's Guardian, is the most closely concerned with the conduct of the entity. Schedule 1 entity see section 13. sexual misconduct see section 22. sexual offence see section 21. third party employer means a person, other than a relevant entity, who engages another person to provide services to children on behalf of a relevant entity, including as a contractor. Division 2 Key concepts for Part 11 Meaning of "reportable conduct scheme" Reportable conduct scheme means the scheme established under this Part to investigate reportable allegations and make determinations in relation to reportable convictions. 12 Meaning of "relevant entity" Relevant entity means— (a) a Schedule 1 entity, or (b) a public authority, or (c) a religious body. 13 Meaning of "Schedule 1 entity" Schedule 1 entity means— (a) an entity mentioned in Schedule 1, or (b) an authorised carer that is not employed by, or in, an entity mentioned in Schedule 1, or (c) an adult who, under section 10 of the Child Protection (Working with Children) Act 2012, is required to hold a working with children check clearance because the adult resides on the same property as an authorised carer for 3 weeks or more, or (d) an entity, or part of an entity, prescribed by the regulations for this definition. 14 Meaning of "public authority" Public authority means— (a) a government sector agency within the meaning of the Government Sector Employment Act 2013, or (b) a person specified in section 5(1)(a), (b) and (d)–(f) of the Government Sector Employment Act 2013, or (c) a local government authority, or (d) a statutory body representing the Crown, or (e) a statutory officer, or (f) a body, whether incorporated or unincorporated, established for a public purpose under the provisions of a legislative instrument, or (g) a State-owned corporation, or (h) a university established under an Act, or (i) an Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act 1983, or (j) an entity, or part of an entity, declared by the regulations to be a public authority for this definition. 15 Meaning of "local government authority" Local government authority means a council, county council or joint organisation under the Local Government Act 1993. 15A Meaning of "religious body" Religious body means— (a) a body established for a religious purpose, and (b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles. 16 Meaning of "employee" (1) Employee, of a relevant entity, means the following— (a) for a Schedule 1 entity— (i) an individual employed by, or in, the Schedule 1 entity, or (ii) if the entity is an individual—the individual, or (iii) if an individual is engaged directly, or by a third party employer, as a volunteer to provide services to children—the volunteer, or (iv) if an individual is engaged directly, or by a third party employer, as a contractor and the contractor holds, or is required to hold, a working with children check clearance for the purpose of the engagement—the contractor, or (v) if an individual is the head of a third party employer contracted to provide services to children on behalf of a Schedule 1 entity and the individual holds, or is required to hold, a working with children check clearance—the individual, (b) for a public authority— (i) an individual employed by, or in, the public authority, or (ii) if the public authority is an individual—the individual, or (iii) if an individual is engaged directly, or by a third party employer, as a volunteer to provide services to children—the volunteer, or (iv) if an individual is engaged directly, or by a third party employer, as a contractor and the contractor holds, or is required to hold, a working with children check clearance for the purpose of the engagement—the contractor, or (v) if an individual is the head of a third party employer contracted to provide services to children on behalf of a public authority and the individual holds, or is required to hold, a working with children check clearance—the individual, (c) for a religious body—an individual who holds, or is required by the religious body to hold, a working with children check clearance for the purpose of engagement with the religious body. Example for paragraph (b)(iv)— a dance teacher is employed as a contractor by a dance school. The dance school leases the dance school premises from a local council and is conducting dance classes on behalf of the council. As the dance teacher teaches children, the dance teacher is required to hold a working with children check clearance. The dance teacher is taken to be an employee of the local council for the purposes of this Part. (2) For a public authority, a person is also an employee of the authority if— (a) the person exercises official functions or acts in a public official capacity in the service of the authority, or (b) the person is otherwise in the service of the Crown. (3) Also, for the purposes of this Part, an employee includes— (a) a visiting health practitioner if the visiting health practitioner holds, or is required to hold, a working with children check clearance for the purpose of appointment with the entity, and (b) a person employed under Part 2 of the Members of Parliament Staff Act 2013, and the person is taken to be an employee of a public authority. (4) If an employee is an employee of a Schedule 1 entity that is also a public authority, the provisions relating to the Schedule 1 entity apply to the employee for this Part. (5) In this section— health care services means a service ordinarily provided by a health practitioner. health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW). visiting health practitioner means a person who is appointed, employed, contracted or otherwise engaged by a Schedule 1 entity to provide health care services. 17 Meaning of "head" of relevant entity (1) Head, of a relevant entity, means— (a) for an entity that is a Department—the Secretary of that Department or the Secretary's delegate, or (b) if the regulations prescribe a person or a class of persons as the head of the entity—the prescribed person or a person belonging to the class of persons prescribed, or (c) otherwise— (i) the chief executive officer of the entity, however described, or (ii) if there is no chief executive officer, the principal officer of the entity, however described, or (iii) if there is no chief executive officer or principal officer, a person approved by the Children's Guardian under section 66. (2) In relation to a person employed under Part 2 of the Members of Parliament Staff Act 2013 by a member of Parliament, the member of Parliament is taken to be a public authority and the head of the authority. 18 Meaning of "reportable allegation" (1) Reportable allegation, in relation to an employee of a Schedule 1 entity, means an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee's employment with the Schedule 1 entity. (2) Reportable allegation, in relation to an employee of a public authority, means— (a) if the employee holds, or is required to hold, a working with children check clearance for the purpose of employment with the public authority—an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee's employment, or (b) if the employee is not required to hold a working with children check clearance for the purpose of employment with the public authority—an allegation that the employee has engaged in conduct that may be reportable conduct, unless the conduct is alleged to have occurred outside the course of the employee's employment with the public authority. (2A) Reportable allegation, in relation to an employee of a religious body, means an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee's engagement with the religious body. (3) A reference in this Part to a reportable allegation includes an allegation in respect of conduct occurring before the commencement. 19 Meaning of "reportable conviction" (1) Reportable conviction means a conviction, including a finding of guilt without the court proceeding to a conviction, in this State or elsewhere, of an offence involving reportable conduct— (a) in relation to an employee of a Schedule 1 entity—whether or not the conduct occurred in the course of the employee's employment with the Schedule 1 entity, or (b) in relation to an employee of a public authority— (i) if the employee holds, or is required to hold, a working with children check clearance for the purpose of employment with the public authority—whether or not the conduct occurred in the course of the employee's employment, or (ii) if the employee is not required to hold a working with children check clearance for the purpose of employment with the public authority—unless the conviction relates to conduct that occurred outside the course of the employee's employment with the public authority, or (c) in relation to an employee of a religious body—whether or not the conduct occurred in the course of the employee's engagement with the religious body. (2) A reference in this Part to a reportable conviction includes a conviction in respect of conduct occurring before the commencement. 20 Meaning of "reportable conduct" Reportable conduct means the following conduct, whether or not a criminal proceeding in relation to the conduct has been commenced or concluded— (a) a sexual offence, (b) sexual misconduct, (c) ill-treatment of a child, (d) neglect of a child, (e) an assault against a child, (f) an offence under section 43B or 316A of the Crimes Act 1900, (g) behaviour that causes significant emotional or psychological harm to a child. Examples of indicators of significant emotional or psychological harm for paragraph (g)— 1 displaying behaviour patterns that are out of character 2 regressive behaviour 3 anxiety or self-harm 21 Meaning of "sexual offence" Sexual offence means an offence of a sexual nature under a law of the State, another State, a Territory, or the Commonwealth, committed against, with or in the presence of a child. Examples of sexual offences— 1 sexual touching of a child 2 a child grooming offence 3 production, dissemination or possession of child abuse material 22 Meaning of "sexual misconduct" Sexual misconduct means conduct with, towards or in the presence of a child that— (a) is sexual in nature, but (b) is not a sexual offence. Examples of sexual misconduct— 1 descriptions of sexual acts without a legitimate reason to provide the descriptions 2 sexual comments, conversations or communications 3 comments to a child that express a desire to act in a sexual manner towards the child or another child 23 Meaning of "ill-treatment" Ill-treatment, of a child, means conduct towards a child that is unreasonable and seriously inappropriate, improper, inhumane or cruel. Examples of ill-treatment— 1 making excessive or degrading demands of a child 2 a pattern of hostile or degrading comments or behaviour towards a child 3 using inappropriate forms of behaviour management towards a child 24 Meaning of "neglect" Neglect, of a child, means a significant failure to provide adequate and proper food, supervision, nursing, clothing, medical aid or lodging for the child, that causes or is likely to cause harm to a child, by— (a) a person with parental responsibility for the child, or (b) an authorised carer of the child, or (c) an employee, if the child is in the employee's care. Examples of neglect— 1 failing to protect a child from abuse 2 exposing a child to a harmful environment, for example, an environment where there is illicit drug use or illicit drug manufacturing 25 Meaning of "assault" Assault means— (a) the intentional or reckless application of physical force without lawful justification or excuse, or (b) any act which intentionally or recklessly causes another to apprehend immediate and unlawful violence. Examples of assault— 1 hitting, striking, kicking, punching or dragging a child 2 threatening to physically harm a child 26 Meaning of "finding of reportable conduct" Finding of reportable conduct means a finding, by a relevant entity or the Children's Guardian, as a result of an investigation conducted under this Part, that a reportable allegation is sustained. Division 3 Reports, complaints and notifications 27 Who must give report of reportable allegation or conviction (1) This section applies if a person (the first person) becomes aware of either of the following matters in relation to an employee of a relevant entity— (a) a reportable allegation, (b) a conviction the person considers is a reportable conviction. (2) If the first person is also an employee of the relevant entity or a third party employer,, the person must, as soon as practicable after becoming aware of the matter— (a) report the matter to the head of the relevant entity, or (b) if the employee to whom the matter relates is the head of the relevant entity, report the matter to the Children's Guardian. (3) If the first person is not also an employee of the relevant entity or a third party employer, the person may— (a) report the matter to the head of the relevant entity, or (b) if the employee is the head of the relevant entity, report the matter to the Children's Guardian. 28 Complaints to Children's Guardian (1) If a person who gives a report is dissatisfied with the response of the head of the relevant entity to the report, the person may make a complaint to the Children's Guardian. (2) Another person or other entity dissatisfied with the response of the head of the relevant entity to the report may also make a complaint to the Children's Guardian. 29 Children's Guardian to be given notification of reports (1) This section applies if the head of a relevant entity— (a) receives a report in relation to an employee of the relevant entity, or (b) otherwise becomes aware of a reportable allegation in relation to an employee of the relevant entity or a conviction that is considered to be a reportable conviction. (2) The head of the relevant entity must give the Children's Guardian a written notice (a notification) about the reportable allegation or conviction considered to be a reportable conviction that states— (a) that a report has been received in relation to an employee of the relevant entity, and (b) the type of reportable conduct the subject of the report, and (c) the name of the employee, and (d) the name and contact details of the relevant entity and the head of the relevant entity, and (e) for a reportable allegation—whether the Commissioner of Police has been notified of the allegation, and (f) if a report has been made under section 24 of the Children and Young Persons (Care and Protection) Act 1998—that the report has been made, and (g) the nature of the relevant entity's initial risk assessment and risk management action, and (h) any other information prescribed by the regulations. (3) The notice must also include the following, if known to the head of the relevant entity— (a) details of the reportable allegation or conviction considered to be a reportable conviction, (b) the date of birth and working with children number, if any, of the employee the subject of the report, (c) for a reportable allegation of which the Commissioner of Police has been notified—the police report reference number, (d) if a report has been made under section 24 of the Children and Young Persons (Care and Protection) Act 1998—the report reference, (e) the names of other relevant entities that employ or engage the employee, whether or not directly, to provide a service to children, including as a volunteer or contractor. (4) The head of the relevant entity must give the Children's Guardian the notice within 7 business days after the head of the entity is made aware of the report, unless— (a) an exemption applies under section 30, or (b) the head of the relevant entity has a reasonable excuse. Maximum penalty—10 penalty units. (5) The head of the relevant entity may give the employee the subject of the report written notice that a report about a reportable allegation or conviction considered to be a reportable conviction has been made. (6) The Children's Guardian may publish guidelines in relation to the matters that are appropriate for the head of a relevant entity to have regard to in deciding whether to provide the employee with written notice under subsection (5). (7) In this section— working with children number has the same meaning as in the Child Protection (Working with Children) Act 2012. Division 4 Exempt conduct, managing investigations and determinations 30 Children's Guardian may exempt conduct from notification (1) The Children's Guardian may exempt a class or kind of conduct of employees of a relevant entity from notification under section 29. (2) The Children's Guardian may exempt a class or kind of conduct of employees of a relevant entity from notification under section 29 only if the Children's Guardian— (a) has followed the procedures for exempting a class or kind of conduct prescribed by the regulations, and (b) is satisfied the relevant entity, in relation to the exempt class or kind of conduct, meets the criteria, if any, prescribed by the regulations. (3) For an exemption under this section, the Children's Guardian must— (a) notify the relevant entity of the exemption, and (b) publish the details of the class or kind of conduct and relevant entity with an exemption on the Office of the Children's Guardian's website. (4) The procedures and criteria referred to in subsection (2)(a) and (b) must also be published on the Office of the Children's Guardian's website. 31 Exemptions about investigations and investigation reports (1) The Children's Guardian may, by written notice given to the head of a relevant entity, exempt the head from commencing or continuing either of the following— (a) an investigation into a reportable allegation, (b) a determination as to whether a conviction considered to be a reportable conviction is a reportable conviction. (2) An exemption under subsection (1) applies until the head of the relevant entity is otherwise notified, in writing, by the Children's Guardian that the exemption is revoked. (3) An exemption under subsection (1) is taken to be an exemption from the requirement for the relevant entity to provide an entity report or an interim report. (4) Without limiting subsection (1), the Children's Guardian may exempt the head of a relevant entity if a matter is already being investigated by another relevant entity. (5) The Children's Guardian may also exempt the relevant entity from the requirement to provide an entity report or an interim report in relation to a matter after the Children's Guardian receives the notification for the matter. 32 Notice to require relevant entity to defer investigation (1) This section applies if, in relation to an employee of a relevant entity— (a) the Children's Guardian intends to— (i) investigate a reportable allegation or a matter arising from a reportable allegation, or (ii) determine whether a conviction considered to be a reportable conviction is a reportable conviction, and (b) an investigation or determination under section 34 has not been finalised. (2) The Children's Guardian may, by written notice given to the head of the relevant entity, require the head to defer the investigation or determination. (3) The Children's Guardian may, by further written notice to the head of the relevant entity, require the head to— (a) commence, continue or finalise the investigation or determination deferred under this section, or (b) end the investigation or determination and take no further action. 33 Concurrent investigations or proceedings (1) This section applies if the Commissioner of Police or the Director of Public Prosecutions advises the Children's Guardian, or the head of a relevant entity, that an investigation or determination under this Part is likely to prejudice a police investigation or court proceeding. (2) The Children's Guardian or head of the relevant entity may— (a) suspend the investigation or a determination until otherwise advised, and (b) after consulting the police officer in charge of the investigation or the Director of Public Prosecutions, take steps to manage any risks while the investigation or determination is suspended, and (c) if the investigation or determination was being conducted by the head of a relevant entity— (i) advise the Children's Guardian about the suspension under this section, and (ii) advise the Children's Guardian of the steps being taken to manage risks. (3) Before making a decision about whether or not to suspend an investigation or determination, the Children's Guardian, or head of the relevant entity, must consult with the Commissioner of Police, or the Director of Public Prosecutions, who provided the advice under subsection (1). (4) If the investigation under this Part is not suspended, the Children's Guardian or head of the relevant entity that decides not to suspend the investigation must ensure the investigation is conducted in a way that does not prejudice the police investigation or court proceeding. (5) An investigation or determination by a relevant entity, suspended by operation of this section, is taken to be exempt from the requirement to provide an entity report or an interim report until the period of 30 days after the suspension has ended. (6) This section does not affect the operation of any other Act. (7) For the purposes of this section— (a) a reference to a police investigation includes a reference to an investigation by the Australian Federal Police, an international investigation the Australian Federal Police are aware of, or a police investigation in another State or Territory, and (b) a reference to a court proceeding includes a reference to a court proceeding in another State or Territory, and (c) a reference to the Commissioner of Police or the Director of Public Prosecutions includes a reference to a person holding the equivalent office in another State or Territory. Division 5 Investigation or determination and report by relevant entity 34 Investigation or determination by head of relevant entity (1) As soon as practicable after receiving a report, the head of the relevant entity must— (a) investigate, or arrange for an investigator to investigate, the reportable allegation, or (b) determine whether the conviction considered to be a reportable conviction is a reportable conviction. (2) During an investigation or a determination, an employee the subject of a reportable allegation or a conviction considered to be a reportable conviction may give the head of the relevant entity a written submission concerning the allegation or conviction for the purpose of determining what, if any, disciplinary or other action should be taken in relation to the employee. (3) The investigation or determination must be completed within a reasonable time. Note— Section 138 requires information to be reported in particular circumstances. 35 Mandatory considerations The head of the relevant entity, or the investigator, in conducting an investigation into a reportable allegation must have regard to the matters in Division 6. 36 Report by relevant entity about investigation or determination (1) After an investigation or determination is completed, the head of the relevant entity must prepare a report for the Children's Guardian (an entity report), unless— (a) an exemption applies under section 31, or (b) the head of the relevant entity has a reasonable excuse, or (c) the Children's Guardian consents to an extension of time for the head of the relevant entity to prepare the report. Maximum penalty—10 penalty units. (2) The entity report must be provided to the Children's Guardian within 30 days after the head of the entity receiving the report of the reportable allegation or conviction considered to be a reportable conviction, unless the head of the relevant entity gives the Children's Guardian— (a) an interim report under section 38 within 30 days after receiving the report of the reportable allegation or conviction considered to be a reportable conviction, and (b) a reason for not providing the report within 30 days, and (c) an estimated time frame for the completion of the entity report. Maximum penalty—10 penalty units. (3) Despite subsection (2), if the Children's Guardian consents to an extension of time under subsection (1)(c), the report is due by the date granted under the extension. (3A) Despite subsection (2), the entity report is not required to be given to the Children's Guardian if the conduct is, because of an exemption under section 30(1), exempt from notification under section 29. (4) The entity may give the entity report to the employee of the relevant entity the subject of the report. 37 Contents of entity report (1) The entity report must include the following— (a) in relation to a reportable allegation— (i) information about the facts and circumstances of the reportable allegation, and (ii) the findings the head of the relevant entity has made about the reportable allegation after completing the investigation, including whether the head of the relevant entity has made a finding of reportable conduct, and (iii) an analysis of the evidence and the rationale for the findings, (b) in relation to a conviction considered to be a reportable conviction— (i) information about the conviction considered to be a reportable conviction, and (ii) the determination the head of the relevant entity has made about the conviction, including whether the head of the relevant entity has determined the conviction is a reportable conviction, (c) a copy of any written submission made by the employee under section 34(2), (d) information about what action has been, or will be, taken in relation to the reportable allegation or conviction considered to be a reportable conviction, including the following— (i) remedial or disciplinary action in relation to the employee, (ii) whether information about the matter has been referred to a different entity, (iii) changes to systems or policies including, if the entity is a child safe organisation, to improve implementation of the Child Safe Standards, (iv) if no further action is to be taken—that no further action is to be taken, (e) the reasons for the action taken, including taking no further action, (f) any other information prescribed by the regulations. (2) The entity report must also be accompanied by any copies of documents in the relevant entity's possession that are relevant to the report, including transcripts of interviews and copies of evidence. 38 Interim report An interim report must— (a) include the following information— (i) in relation to a reportable allegation—if known, the facts and circumstances of the reportable allegation, (ii) in relation to a conviction considered to be a reportable conviction—any known information about the conviction, (iii) action taken since the Children's Guardian received a notification about the reportable allegation or the conviction considered to be a reportable conviction, (iv) further action the head of the relevant entity proposes to take in relation to the reportable allegation or conviction considered to be a reportable conviction, including if the head of the relevant entity proposes to take no further action, (v) the reasons for the action taken and the action proposed to be taken or the reasons for the decision to take no further action, (vi) other information prescribed by the regulations, and (b) be accompanied by copies of documents in the relevant entity's possession, including transcripts of interviews and copies of evidence. Division 6 Mandatory matters for consideration for reportable allegations 39 Application of Division (1) This Division applies in relation to a report, complaint or notification of a reportable allegation received by the head of a relevant entity, or by the Children's Guardian. (2) This Division does not apply in relation t