South Australia: Children and Young People (Safety) Act 2017 (SA)

South Australia Children and Young People (Safety) Act 2017 An Act to protect children and young people from harm; to provide for children and young people who are in care; and for other purposes. Contents Chapter 1—Preliminary 1 Short title 3 Act to bind, and impose criminal liability on, the Crown Chapter 2—Guiding principles for the purposes of this Act Part 1—The importance to the State of children and young people 4 Parliamentary declaration 5 Duty to safeguard and promote the welfare of children and young people 6 Interaction with other Acts Part 2—Priorities in the operation of this Act 7 Safety of children and young people paramount 8 Other needs of children and young people 9 Early intervention Part 3—Principles to be applied in operation of this Act 10 Principles of intervention 11 Placement principles 12 Aboriginal and Torres Strait Islander Child Placement Principle Part 4—Charter of Rights for Children and Young People in Care 13 Charter of Rights for Children and Young People in Care Part 5—Additional functions of Minister 14 Additional functions of Minister 15 Additional annual reporting obligations Chapter 3—Interpretation 16 Interpretation 17 Meaning of harm 18 Meaning of at risk 19 Minister may publish policies Chapter 4—Managing risks without removing child or young person from their home Part 1—Child and Family Assessment and Referral Networks 20 Minister may establish Child and Family Assessment and Referral Networks Part 2—Family group conferences 21 Purpose of family group conferences 22 Chief Executive or Court may convene family group conference 23 Who may attend a family group conference 24 Procedures at family group conference 25 Review of arrangements 26 Chief Executive etc to give effect to decisions of family group conference 27 Statements made at family group conference not admissible Part 3—Case planning 28 Chief Executive to prepare case plan in respect of certain children and young people 29 Chief Executive etc to give effect to case plan Chapter 5—Children and young people at risk Part 1—Reporting of suspicion that child or young person may be at risk 30 Application of Part 31 Reporting of suspicion that child or young person may be at risk Part 2—Responding to reports etc that child or young person may be at risk 32 Chief Executive must assess each report indicating child or young person may be at risk 33 Chief Executive may refer matter 34 Chief Executive may investigate circumstances of a child or young person 35 Chief Executive may direct that child or young person be examined and assessed 36 Chief Executive may direct person to undergo certain assessments 37 Random drug and alcohol testing 38 Chief Executive may direct certain persons to undertake rehabilitation program 39 Forensic materials not to be used for other purposes and test results inadmissible in other proceedings 40 Destruction of forensic material Part 3—Removal of child or young person 41 Removal of child or young person 42 Action following removal of child or young person 43 Custody of removed child or young person Part 4—Chief Executive to assume guardianship of child or young person where parent found guilty of certain offences 44 Interpretation 45 Temporary instruments of guardianship 46 Restraining notices 47 Court may extend period 48 Certain information to be provided to Chief Executive Chapter 6—Court orders relating to children and young people Part 1—Applications for Court orders 49 Who may make application for Court orders 50 When application can be made for Court orders 51 Parties to proceedings 52 Copy of application to be served on parties Part 2—Orders that can be made by Court 53 Orders that may be made by Court 54 Consent orders 55 Variation, revocation or discharge of orders 56 Adjournments 57 Court not bound by rules of evidence 58 Standard of proof 59 Onus on objector to prove order should not be made 60 Orders for costs 61 Non-compliance with orders Part 3—Child or young person to be heard in proceedings 62 Views of child or young person to be heard Part 4—Representation of children and young people 63 Legal practitioners to comply with this section when representing child or young person 64 Limitations on orders that may be made if child or young person unrepresented Part 5—Miscellaneous 65 Conference of parties 66 Interested persons may be heard 67 Court may refer a matter to a family group conference 68 Effect of guardianship order Chapter 7—Children and young people in care Part 1—Approved carers Division 1—Preliminary 69 Interpretation 70 Chief Executive may establish different categories of approved carers Division 2—Approval of carers 71 Out of home care only to be provided by approved carers 72 Approval of carers 73 Ongoing reviews of approved carers 74 Cancellation of approval 75 Certain information to be provided to Chief Executive 76 Delegation of certain powers to approved carer Division 3—Temporary placement of child or young person where approved carer not available 77 Temporary placement of child or young person where approved carer not available Division 4—Information and involvement in decision‑making 78 Interpretation 79 Approved carers to be provided with certain information prior to placement 80 Children and young people to be provided with certain information prior to placement 81 Approved carers to be provided with certain information 82 Approved carers entitled to participate in decision‑making process 83 Non-compliance with Division not to invalidate placement Part 2—Children and young people in Chief Executive's custody or guardianship 84 Chief Executive's powers in relation to children and young people in Chief Executive's custody or guardianship 85 Review of circumstances of prescribed child or young person 86 Direction not to communicate with, be in company of, harbour or conceal child or young person 87 Offence of harbouring, concealing etc absent child or young person 88 Unlawful taking of child or young person Part 3—Transition to long‑term guardianship 89 Certain approved carers may apply to Chief Executive to seek long‑term guardianship order 90 Long‑term care plan to be prepared 91 Chief Executive to apply to Court for order to place child or young person under long‑term guardianship Part 4—Contact arrangements in respect of children and young people 92 Application of Part 93 Contact arrangements to be determined by Chief Executive 94 Contact Arrangements Review Panel 95 Review by Contact Arrangements Review Panel Part 5—Voluntary custody agreements 96 Voluntary custody agreements Part 6—Foster care agencies 97 Interpretation 98 Foster care agencies to be licensed 99 Licence to carry on business as foster care agency 100 Cancellation of licence 101 Record keeping 102 Ongoing reviews of approved carers by agency Part 7—Licensed children's residential facilities 103 Interpretation 104 Children's residential facilities to be licensed 105 Licence to operate children's residential facility 106 Cancellation of licence 107 Persons not to be employed in licensed children's residential facility unless they have been assessed 108 Record keeping 109 Child protection officer may inspect licensed children's residential facility 110 Chief Executive to hear complaints Part 7A—Assessment of employees in other residential facilities 110A Persons not to be employed in certain residential facilities unless assessed Part 8—Provision of assistance to care leavers 111 Chief Executive to assist persons leaving care 112 Minister to arrange assistance for eligible care leavers Part 9—Miscellaneous 112A Chief Executive may provide assistance to persons caring for children and young people 113 Agreement for funeral arrangements of children and young people in care Chapter 8—Providing safe environments for children and young people 114 Certain organisations must have policies and procedures to ensure safe environments provided 115 Policies and procedures to be reviewed Chapter 9—Child and Young Person's Visitor scheme 116 Interpretation 117 Child and Young Person's Visitor 118 Functions and powers 119 Reporting obligations Chapter 10—Transfer of certain orders and proceedings between South Australia and other jurisdictions Part 1—Preliminary 120 Purpose of Chapter 121 Interpretation Part 2—Administrative transfer of child protection order 122 When Chief Executive may transfer order 123 Persons whose consent is required 124 Chief Executive to have regard to certain matters 125 Notification to child, parents and guardians 126 Review of decision may be sought Part 3—Judicial transfer of child protection order 127 When Court may make order under this Part 128 Type of order 129 Court to have regard to certain matters 130 Duty of Chief Executive to inform the Court of certain matters Part 4—Transfer of child protection proceedings 131 When Court may make order under this Part 132 Court to have regard to certain matters 133 Interim order Part 5—Registration of interstate orders and proceedings 134 Filing and registration of interstate documents 135 Notification by Registrar 136 Effect of registration 137 Revocation of registration Part 6—Miscellaneous 138 Appeals 139 Effect of registration of transferred order 140 Transfer of Court file 141 Hearing and determination of transferred proceeding 142 Disclosure of information 143 Discretion of Chief Executive to consent to transfer 144 Evidence of consent of relevant interstate officer Chapter 11—Administrative matters Part 1—Functions of Chief Executive etc 145 Functions of the Chief Executive 146 Powers of delegation Part 2—Child protection officers 147 Child protection officers 148 Primary function of child protection officers 149 Powers of child protection officers 150 Child protection officer may require information etc Part 3—Information gathering and sharing 151 Chief Executive may require State authority to provide report 152 Sharing of information between certain persons and bodies 153 Certain persons to be provided with documents and information held by the Department 154 Internal Review by Chief Executive 155 Interaction with Public Sector (Data Sharing) Act 2016 Part 4—Additional reporting obligations of Chief Executive 156 Additional annual reporting obligations Chapter 12—Reviews of decisions under Act Part 1—Internal review 157 Internal review Part 2—Review of decisions by South Australian Civil and Administrative Tribunal 158 Review of decisions by South Australian Civil and Administrative Tribunal 159 Views of child or young person may be heard Chapter 13—Miscellaneous 160 Hindering or obstructing a person in execution of duty 161 Payment of money to Chief Executive on behalf of child or young person 162 Restrictions on publication of certain information 163 Protection of identity of persons who report to or notify Department 164 Confidentiality 165 Victimisation 166 Protections, privileges and immunities 166A Limitation on tortious liability for acts of certain children and young people 167 Evidentiary provision 168 Service 169 Review of Act 169A Independent inquiry into foster care and kinship care 170 Regulations Legislative history The Parliament of South Australia enacts as follows: Chapter 1—Preliminary 1—Short title This Act may be cited as the Children and Young People (Safety) Act 2017. 3—Act to bind, and impose criminal liability on, the Crown (1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament permits, the Crown in all its other capacities. (2) The Crown is liable for an offence against this Act. (3) If the Crown is guilty of an offence against this Act, the penalty that may be imposed on the Crown is the penalty that may be imposed on a body corporate. Chapter 2—Guiding principles for the purposes of this Act Part 1—The importance to the State of children and young people 4—Parliamentary declaration (1) The Parliament of South Australia recognises and acknowledges that— (a) children and young people are valued citizens of the State; and (b) the future of the State is inextricably bound to the wellbeing of all its children and young people; and (c) it is of vital importance to the State, and all of its citizens, that all children and young people are given the opportunity to thrive. (2) The Parliament of South Australia recognises that, as a State, we want each child and young person to benefit from (at least) the following outcomes: (a) to be safe from harm; (b) to do well at all levels of learning and to have skills for life; (c) to enjoy a healthy lifestyle; (d) to be active citizens who have a voice and influence, and the Parliament of South Australia accordingly commits to promoting these outcomes. (3) The Parliament of South Australia acknowledges that outcomes for Aboriginal and Torres Strait Islander children and young people in care have historically been poor, and that it is unacceptable for outcomes for those children and young people to be any different to those for children and young people in care generally. (4) It is the intention of the Parliament of South Australia that the performance of functions in the administration and operation of this Act be done in collaboration with, and with the cooperation of, children and young people and their families rather than simply being done to or for them. 5—Duty to safeguard and promote the welfare of children and young people The Parliament of South Australia recognises that— (a) it is the duty of every person in the State to safeguard and promote the outcomes set out in section 4(2); and (b) the provisions of this Act, and compliance with its provisions, form only a small part of the way in which the State, the agencies of the State, the Commonwealth and every citizen of the State discharge that duty. 6—Interaction with other Acts (1) This Act is to work in conjunction with all of the laws of the State, and, in particular, the Child Safety (Prohibited Persons) Act 2016 and the Children and Young People (Oversight and Advocacy Bodies) Act 2016, to further and achieve the aims set out in this Chapter. (2) This Act is in addition to, and does not derogate from, any other Act or law. Part 2—Priorities in the operation of this Act 7—Safety of children and young people paramount The paramount consideration in the administration, operation and enforcement of this Act must always be to ensure that children and young people are protected from harm. 8—Other needs of children and young people (1) In addition to the paramount consideration set out in section 7, and without derogating from that section, the following needs of children and young people are also to be considered in the administration, operation and enforcement of this Act: (a) the need to be heard and have their views considered; (b) the need for love and attachment; (c) the need for self-esteem; (d) the need to achieve their full potential. (2) To avoid doubt, the requirement under this section applies to the Court. (3) Without derogating from any other provision of this Act, it is desirable that the connection of children and young people with their biological family be maintained. 9—Early intervention Without limiting a provision of this or any other Act or law, State authorities whose functions and powers include matters relating to the safety and welfare of children and young people must have regard to the fact that early intervention in matters where children and young people may be at risk is a priority. Part 3—Principles to be applied in operation of this Act 10—Principles of intervention (1) The principles of intervention are as follows: (a) decisions and actions (if any) under this Act should be taken in a timely manner (and, in particular, should be made as early as possible in the case of young children in order to promote permanence and stability); (b) if a child or young person is able to form their own views on a matter concerning their care, the child or young person should be given an opportunity to express those views freely and those views are to be given due weight in the operation of this Act in accordance with the developmental capacity of the child or young person and the circumstances; (c) account should be taken of the culture, disability, language and religion of children or young people and, if relevant, those in whose care children and young people are placed; (d) in each case, consideration should be given to making arrangements for the care of a child or young person by way of a family group conference if possible and appropriate. (2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles of intervention. (3) However, this section and the principles of intervention do not displace, and cannot be used to justify the displacement of, section 7. (4) To avoid doubt, the requirement under this section applies to the Court. 11—Placement principles (1) The placement principles are as follows: (a) all children and young people who have been removed from the care of a person under this Act should be placed in a safe, nurturing, stable and secure environment; (b) the preferred option in relation to such placement of a child or young person is to place the child or young person with a person with whom they have an existing relationship; (c) approved carers are entitled to be, and should be, involved in decision-making relating to children and young people in their care. (2) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the placement principles. (3) However, this section and the placement principles do not displace, and cannot be used to justify the displacement of, section 7. (4) To avoid doubt, the requirement under this section applies to the Court. 12—Aboriginal and Torres Strait Islander Child Placement Principle (1) Subject to the placement principles, the objects and principles set out in this section apply to the placement of Aboriginal and Torres Strait Islander children and young people under this Act. (2) The objects of this section include— (a) maintaining the connection of Aboriginal and Torres Strait Islander children and young people with their family and culture; and (b) enabling Aboriginal and Torres Strait Islander people to participate in the care and protection of their children and young people; and (c) achieving the objects set out in the preceding paragraphs (as well as reducing the incidence of the removal of Aboriginal and Torres Strait Islander children and young people) by encouraging Aboriginal and Torres Strait Islander people, their children and young people and State authorities to act in partnership when making decisions about the placement of Aboriginal and Torres Strait Islander children and young people under this Act. (3) The Aboriginal and Torres Strait Islander Child Placement Principle is as follows: (a) if an Aboriginal or Torres Strait Islander child or young person is to be placed in care under this Act, the child or young person should, if reasonably practicable, be placed with 1 of the following persons (in order of priority): (i) a member of the child or young person's family; (ii) a member of the child or young person's community who has a relationship of responsibility for the child or young person; (iii) a member of the child or young person's community; (iv) a person of Aboriginal or Torres Strait Islander cultural background (as the case requires), (determined in accordance with Aboriginal or Torres Strait Islander traditional practice or custom); (b) if an Aboriginal or Torres Strait Islander child or young person is unable to be placed with a person referred to in paragraph (a), or it is not in the best interests of the child or young person to do so, the child or young person should be given the opportunity for continuing contact with their family, community or communities and culture (determined in accordance with Aboriginal or Torres Strait Islander traditional practice or custom); (c) before placing an Aboriginal or Torres Strait Islander child or young person under this Act, the Chief Executive or the Court (as the case requires) must, where reasonably practicable, consult with, and have regard to any submissions of, a recognised Aboriginal or Torres Strait Islander organisation. (4) This section and the Aboriginal and Torres Strait Islander Child Placement Principle do not displace, and cannot be used to justify the displacement of, section 7. (5) The Minister may, by notice in the Gazette, after consulting with the relevant community or a section of the relevant community, vary or revoke a declaration relating to a recognised Aboriginal or Torres Strait Islander organisation. (6) The regulations may make further provision in relation to the placement of Aboriginal children and Torres Strait Islander children under this Act. (7) To avoid doubt, the requirements under this section apply to the Court. (8) In this section— recognised Aboriginal or Torres Strait Islander organisation means— (a) in relation to the placement of an Aboriginal child or young person—an organisation that the Minister, after consulting with the Aboriginal community or a section of the Aboriginal community, declares by notice in the Gazette to be a recognised Aboriginal organisation for the purposes of this section; or (b) in relation to the placement of a Torres Strait Islander child or young person—an organisation that the Minister, after consulting with the Torres Strait Islander community or a section of the Torres Strait Islander community, declares by notice in the Gazette to be a recognised Torres Strait Islander organisation for the purposes of this section. Part 4—Charter of Rights for Children and Young People in Care 13—Charter of Rights for Children and Young People in Care (1) The Guardian for Children and Young People must prepare and maintain a Charter of Rights for Children and Young People in Care. (2) The Guardian for Children and Young People— (a) may vary the Charter at any time; and (b) must review the Charter at least every 5 years. (3) In preparing, varying or reviewing the Charter, the Guardian for Children and Young People must invite submissions from, and consult with, to such extent as may be reasonable, interested persons (including persons who are, or have been, under the guardianship, or in the custody, of the Minister or the Chief Executive) with a view to obtaining a wide range of views in relation to the matters under consideration. (4) The Guardian for Children and Young People must submit the Charter or variation to the Minister for approval. (5) The Minister may— (a) approve the Charter or variation; or (b) require an alteration to the Charter or variation, after consultation with the Guardian for Children and Young People, and then approve the Charter or variation as altered. (6) The Charter, and any variation, has effect from the day on which it is approved by the Minister. (7) The Minister must cause the Charter to be published on a website determined by the Minister. (8) The Minister must, within 6 sitting days after approving the Charter or variation, cause a copy of the Charter, or the Charter as varied, (as the case requires) to be laid before both Houses of Parliament. (9) Each person or body engaged in the administration, operation or enforcement of a relevant law must, to the extent that it is consistent with section 7 to do so in a particular case, exercise their powers and perform their functions so as to give effect to the Charter. (10) However, the Charter does not create legally enforceable rights or entitlements. (11) To avoid doubt, the requirements under this section apply to the Court. (12) For the purposes of this section, a reference to a variation of the Charter will be taken to include a reference to the substitution of the Charter. (13) In this section— relevant law means— (a) this Act; and (b) the Family and Community Services Act 1972; and (c) any Act relating to the detention of a youth in a training centre; and (d) any other Act declared by the regulations to be included in the ambit of this definition. Part 5—Additional functions of Minister 14—Additional functions of Minister (1) In addition to any other functions the Minister may have under this Act, the Minister must, in order to promote the wellbeing of children and young people and early intervention where they may be at risk of harm— (a) promote a partnership approach between the Government, local government, non-government agencies and families; and (b) promote and assist in the development of co-ordinated strategies for early intervention in cases where children and young people may be at risk of harm; and (c) promote, support and adequately resource evidence-based programs delivering preventative and support services directed towards strengthening and supporting families, reducing the incidence of child abuse and neglect and maximising the wellbeing of children and young people; and (d) promote, encourage or undertake research into matters affecting children and young people; and (e) generally do such other things as the Minister believes will promote the wellbeing of children and young people, and promote and support early intervention where they may be at risk of harm. (2) Without limiting a provision of any other Act or law, the Minister must, in relation to the operation of this Act— (a) collaborate with and assist Aboriginal and Torres Strait Islander communities to develop and implement strategies to ensure that Aboriginal and Torres Strait Islander children and young people are, so far as is reasonably practicable, protected from harm; and (b) ensure that education relating to the operation of section 31 is made available to persons who are required under that section to report a suspicion that a child or young person is, or may be, at risk; and (c) promote and support the provision of courses of instruction relating to the prevention of child abuse and neglect by tertiary institutions in this State; and (d) collect and publish statistical data in relation to the protection of children and young people in this State. (3) Without limiting a preceding subsection, the Minister must also ensure that— (a) assistance is provided to evidence‑based programs delivering services directed towards strengthening and supporting families and maximising the wellbeing of children and young people; and (b) those services are offered to children and young people and their families; and (c) genuine efforts are made to encourage children and young people and their families to avail themselves of the services. 15—Additional annual reporting obligations (1) The Minister must, not later than 30 September in each year, prepare a report— (a) detailing the role of the Minister, and the extent to which the Minister has performed the Minister's functions, in respect of the operation of this Act for the financial year ending on the preceding 30 June; and (b) setting out the following information relating to the provision of family support services and intensive family support services to children and young people who are at risk and their families: (i) the extent to which such services were provided by, or on behalf of, the State (including statistical data relating to the number of times such services were provided) during the financial year ending on the preceding 30 June; (ii) the amount of resources allocated for the provision of such services by or on behalf of the State— (A) during the financial year ending on the preceding 30 June; and (B) during the current financial year; (iii) the extent to which the allocated resources were, in fact, spent on the provision of such services during the financial year ending on the preceding 30 June; (iv) bench‑marking the resources referred to in subparagraph (ii) and (iii) against those allocated and spent by other States and Territories in the provision of such services during the financial year ending on the preceding 30 June; and (c) providing any other information required by the regulations for the purposes of this paragraph. (2) The Minister must, as soon as is reasonably practicable after preparing a report under this section, cause a copy of the report to be published on a website determined by the Minister. (3) The Minister must, within 6 sitting days after preparing a report under this section, cause a copy of the report to be laid before each House of Parliament. (4) The requirements of this section are in addition to any other reporting obligation of the Minister. Chapter 3—Interpretation 16—Interpretation (1) In this Act, unless the contrary intention appears— Aboriginal child or young person means a child or young person who— (a) is a descendant of the indigenous inhabitants of Australia; and (b) regards themself as Aboriginal or, if they are a young child, is regarded as Aboriginal by at least 1 of their parents; approved carer means a person who is the subject of an approval under section 72 that is in force; case plan, in respect of a child or young person—see section 28; Chief Executive means the Chief Executive of the Department; Child and Young Person's Visitor means the Child and Young Person's Visitor established under Chapter 9; child or young person means a person who is under 18 years of age; child protection officer—see section 147; contact arrangements, in respect of a child or young person, means contact arrangements determined by the Chief Executive under section 93 in respect of the child or young person, as in force from time to time; Court means the Youth Court of South Australia; dentist means a person who is registered as a dental practitioner under the Health Practitioner Regulation National Law (South Australia); Department means the administrative unit of the Public Service specified by the Minister by notice in the Gazette for the purposes of this definition; family, in relation to a child or young person, includes— (a) the child or young person's extended family; and (b) members of the child or young person's family who are not biologically related to the child or young person; and (c) in relation to an Aboriginal or Torres Strait Islander child or young person—any person related to the child or young person in accordance with Aboriginal or Torres Strait Islander traditional practice or custom (as the case requires); family group conference means a family group conference convened in accordance with section 22; guardian, of a child or young person, means the guardian or guardians of the child or young person pursuant to an order of the Court under this Act; instrument of guardianship means an instrument of guardianship issued under section 45; legal practitioner has the same meaning as in the Legal Practitioners Act 1981; legal profession rules has the same meaning as in the Legal Practitioners Act 1981; licensed children's residential facility means a children's residential facility in respect of which a licence is in force under Chapter 7 Part 7; licensed foster care agency means a foster care agency carried on pursuant to a licence under Chapter 7 Part 6 that is in force; medical practitioner means a person who is registered as a medical practitioner under the Health Practitioner Regulation National Law (South Australia); out of home care—see section 69; parent, of a child or young person, includes— (a) a step-parent of the child or young person; and (b) a person who stands in loco parentis to the child or young person; pharmacist means a person who is registered as a pharmacist under the Health Practitioner Regulation National Law (South Australia); placement principles—see section 11; principles of intervention—see section 10; psychologist means a person who is registered as a psychologist under the Health Practitioner Regulation National Law (South Australia); registered or enrolled nurse means a person who is registered or enrolled as a nurse under the Health Practitioner Regulation National Law (South Australia); restraining notice means a restraining notice issued under section 46; reunification, in relation to a child or young person, means a reunification of the child or young person and a person or persons from whom the child is removed under this Act; State authority means— (a) a person who holds an office established by an Act; or (b) a public sector agency; or (c) South Australia Police; or (d) a local council constituted under the Local Government Act 1999; or (e) any incorporated or unincorporated body— (i) established for a public purpose by an Act; or (ii) established for a public purpose under an Act (other than an Act providing for the incorporation of companies or associations, co‑operatives, societies or other voluntary organisations); or (iii) established, or subject to control or direction, by the Governor, a Minister of the Crown or any instrumentality or agency of the Crown or a local council (whether or not established by or under an Act or an enactment); or (f) any other person or body declared by the regulations to be a State authority, but does not include a person or body declared by the regulations to be excluded from the ambit of this definition; Torres Strait Islander child or young person means a child or young person who— (a) is a descendant of the indigenous inhabitants of the Torres Strait Islands; and (b) regards themself as Torres Strait Islander or, if they are a young child, is regarded as Torres Strait Islander by at least 1 of their parents; working with children check means a working with children check under the Child Safety (Prohibited Persons) Act 2016. (2) For the purposes of this Act, a reference to a person being found guilty of an offence will be taken to include a reference to— (a) a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of an offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or (b) any finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a). (3) For the purposes of this Act, a reference to care being residential in nature, or being provided on a residential basis, will be taken to include a reference to such care provided to a child or young person for a limited period only. (4) For the purposes of this Act, a reference to the Chief Executive in their capacity as guardian of a child or young person will be taken to be a reference to the person for the time being holding or acting in the office of Chief Executive. 17—Meaning of harm (1) For the purposes of this Act, a reference to harm will be taken to be a reference to physical harm or psychological harm (whether caused by an act or omission) and, without limiting the generality of this subsection, includes such harm caused by sexual, physical, mental or emotional abuse or neglect. (2) In this section— psychological harm does not include emotional reactions such as distress, grief, fear or anger that are a response to the ordinary vicissitudes of life. 18—Meaning of at risk (1) For the purposes of this Act, a child or young person will be taken to be at risk if— (a) the child or young person has suffered harm (being harm of a kind against which a child or young person is ordinarily protected); or (b) there is a likelihood that the child or young person will suffer harm (being harm of a kind against which a child or young person is ordinarily protected); or (c) there is a likelihood that the child or young person will be removed from the State (whether by their parent or guardian or by some other person) for the purpose of— (i) being subjected to a medical or other procedure that would be unlawful if performed in this State (including, to avoid doubt, female genital mutilation); or (ii) taking part in a marriage ceremony (however described) that would be a void marriage, or would otherwise be an invalid marriage, under the Marriage Act 1961 of the Commonwealth; or (iii) enabling the child or young person to take part in an activity, or an action to be taken in respect of the child or young person, that would, if it occurred in this State, constitute an offence against the Criminal Law Consolidation Act 1935 or the Criminal Code of the Commonwealth; or (d) the parents or guardians of the child or young person— (i) are unable or unwilling to care for the child or young person; or (ii) have abandoned the child or young person, or cannot, after reasonable inquiry, be found; or (iii) are dead; or (e) the child or young person is of compulsory school age but has been persistently absent from school without satisfactory explanation of the absence; or (f) the child or young person is of no fixed address; or (g) any other circumstances of a kind prescribed by the regulations exist in relation to the child or young person. (2) It is immaterial for the purposes of this Act that any conduct referred to in subsection (1) took place wholly or partly outside this State. (3) In assessing whether there is a likelihood that a child or young person will suffer harm, regard must be had to not only the current circumstances of their care but also the history of their care and the likely cumulative effect on the child or young person of that history. (4) In this section— female genital mutilation means— (a) clitoridectomy; or (b) excision of any other part of the female genital organs; or (c) a procedure to narrow or close the vaginal opening; or (d) any other mutilation of the female genital organs, but does not include a sexual reassignment procedure or a medical procedure that has a genuine therapeutic purpose; sexual reassignment procedure means a surgical procedure to give a female, or a person whose sex is ambivalent, genital characteristics, or ostensible genital characteristics, of a male. (5) A medical procedure has a genuine therapeutic purpose only if directed at curing or alleviating a physiological disability or physical abnormality. 19—Minister may publish policies (1) The Minister may, by notice in the Gazette, publish policies for the purposes of this Act. (2) The Minister may, by subsequent notice in the Gazette, vary, substitute or revoke a policy published under subsection (1). (3) A policy published under subsection (1) must be kept available for public inspection, without charge and during ordinary office hours, at an office or offices specified by the Minister. (4) Each person or body engaged in the administration, operation or enforcement of this Act must, to the extent that it is consistent with section 7 to do so in a particular case, comply with any relevant policy published under subsection (1). Chapter 4—Managing risks without removing child or young person from their home Part 1—Child and Family Assessment and Referral Networks 20—Minister may establish Child and Family Assessment and Referral Networks (1) The Minister may, in the Minister's absolute discretion, establish such Child and Family Assessment and Referral Networks as the Minister thinks fit. (2) A Child and Family Assessment and Referral Network consists of such persons or bodies (whether State authorities or otherwise) as may be specified by the Minister. (3) A Child and Family Assessment and Referral Network has the functions assigned to it under this Act or by the Minister. (4) The members of a Child and Family Assessment and Referral Network may, despite any other Act or law, collaborate with each other without restriction in the course of performing its functions. (5) The regulations may make further provision relating to Child and Family Assessment and Referral Networks. Part 2—Family group conferences 21—Purpose of family group conferences (1) The purpose of a family group conference is to provide an opportunity for a child or young person and their family, in accordance with this Part— (a) to make informed decisions as to the arrangements for the care of the child or young person; and (b) to make voluntary arrangements for the care of the child or young person that are consistent with sections 7 and 8, as well as this Act generally; and (c) to review those arrangements from time to time. (2) To avoid doubt, a failure to hold a family group conference does not, of itself, invalidate an application for an order of the Court under this Act, nor any such order. 22—Chief Executive or Court may convene family group conference (1) If the Chief Executive or the Court suspects that— (a) a child or young person is at risk and that arrangements should be made in relation to their care; and (b) it would be appropriate in all of the circumstances to make those arrangements by means of a family group conference, then the Chief Executive or the Court (as the case requires) may convene a family group conference in respect of the child or young person. (2) A family group conference is to be conducted by a family group conference co-ordinator (the co‑ordinator) nominated by— (a) if the conference is convened by the Chief Executive—the Chief Executive; or (b) if the conference is convened by the Court—the Judge of the Court. 23—Who may attend a family group conference (1) Subject to this Part, the following people are entitled to attend a family group conference convened in respect of a child or young person: (a) the child or young person; (b) the parents and guardians of the child or young person; (c) members of the child or young person's family; (d) persons who have a close association with the child or young person and who should, in the opinion of the co-ordinator, attend the conference; (e) a person who, in accordance with subsection (4)(c), is arranged to act as advocate for the child or young person at the conference; (f) a person authorised by the Chief Executive for the purposes of this section; (g) if an investigation into the child or young person's circumstances has been carried out under this Act—a person nominated by the co-ordinator who has examined, assessed, counselled or treated the child or young person in the course of the investigation; (h) if the child or young person is an Aboriginal or Torres Strait Islander child or young person—a person nominated by an Aboriginal organisation or Torres Strait Islander organisation (as the case requires) of a kind that is, in the opinion of the co-ordinator, relevant to the subject of the conference; (i) if persistent absenteeism from school is involved— (i) if the child or young person is enrolled at a Government school—an employee of the administrative unit of the Public Service assisting a Minister with the administration of the Education Act 1972 nominated by the Chief Executive of that administrative unit; or (ii) if the child or young person is enrolled at a non-Government school—a person nominated by the head teacher of the school; (j) any other person (not being a legal practitioner) who the child or young person, or their parents or guardians, wish to support them at the conference and who, in the opinion of the co-ordinator, would be of assistance in that role; (k) any other person, or person of a class, prescribed by the regulations for the purposes of this paragraph. (2) However, the co-ordinator of a family group conference may exclude a person referred to in subsection (1) (including, to avoid doubt, the child or young person to whom the conference relates) from attending a family group conference if the co-ordinator is satisfied that to do so would be in the best interests of the child or young person. (3) The co-ordinator of a family group conference must, as far as is reasonably practicable, consult with the child or young person and their parents and guardians as to the attendees at, or persons to be excluded from attending, the conference. (4) The co-ordinator of a family group conference must, as far as is reasonably practicable, ensure that— (a) the conference is held at a time and place that is suitable to the child or young person and their parents and guardians; and (b) a person who is entitled to be at the conference is given notice in accordance with the regulations of the time and place at which the conference is to be held; and (c) a suitable person (who, to avoid doubt, need not be a legal practitioner) is arranged to act as advocate for the child or young person at the conference. (5) However, the co-ordinator of a family group conference need not comply with subsection (4)(c) if they are satisfied that the child or young person has made an informed and independent decision to waive their right to be so represented. 24—Procedures at family group conference (1) The co-ordinator of a family group conference must ensure that information as to the child or young person's circumstances, and any grounds for suspecting the child or young person may be at risk, is presented to the conference. (2) The co-ordinator of a family group conference must allow the child or young person's parents, guardians and family members present at the conference, and the child or young person if the co-ordinator thinks it appropriate to do so, an opportunity to hold discussions in private for the purpose of formulating recommendations as to the arrangements for the care of the child or young person. (3) If a person referred to in section 23(1) is excluded from, or is unable to attend, a family group conference, the co-ordinator of the conference must take reasonable steps to ascertain the views of the person and present those views to the conference. (4) The following provisions relate to the making of decisions in respect of a family group conference: (a) decisions should, if possible, be made by consensus of the persons present at the conference (and, in particular, by that of the child or young person and their parents, guardians and family members); (b) a written record must be prepared of the decisions made at the conference; (c) a decision will only be valid for the purposes of this Act if the child or young person, their parents and guardians and the Chief Executive each accept the decision in accordance with any requirements set out in the regulations; (d) the making of decisions must comply with any other requirements set out in the regulations. (5) The co-ordinator of the family group conference— (a) must cause a copy of the written record of the decisions to be provided to each person present at the conference (and may provide a copy of the written record to any other person the co-ordinator thinks fit); and (b) must cause a copy of the written record of the decisions to be included as part of the case plan for the child or young person to whom the conference relates. (6) Subject to this Act, the co-ordinator of a family group conference may determine the procedures of the conference. 25—Review of arrangements A family group conference co-ordinator (whether or not they were the co-ordinator of the original family group conference) must convene a family group conference for the purpose of reviewing the arrangements made for the care of a child or young person at a previous conference if— (a) they are required to do so pursuant to a valid decision made at the previous conference; or (b) 2 or more members of the child or young person's family who attended the previous conference request such a conference, and may convene such a conference at any other time the co-ordinator thinks necessary or desirable. 26—Chief Executive etc to give effect to decisions of family group conference (1) Subject to this Act, the Chief Executive and State authorities should, to the extent that it is consistent with section 7 to do so, exercise their powers and perform their functions so as to give effect to valid decisions made at a family group conference. (2) However, if valid decisions are made at a family group conference but not implemented or complied with, the Chief Executive may apply for such orders of the Court under section 53 in relation to the care of the child or young person as the Chief Executive considers appropriate. (3) Nothing in this section— (a) requires or authorises the Chief Executive or any other person to do something that is unlawful; or (b) requires or authorises the Chief Executive or any other person to not do something that is required to be done under another Act or law; or (c) creates legally enforceable rights or obligations on the part of the Crown, the Chief Executive, the child or young person or any other person. 27—Statements made at family group conference not admissible (1) Subject to subsection (2), evidence of any statement made at a family group conference is not admissible in any proceedings. (2) The written record of the decisions made at a family group conference is admissible in any proceedings for the purpose of establishing that those decisions were made. Part 3—Case planning 28—Chief Executive to prepare case plan in respect of certain children and young people (1) The Chief Executive must cause a plan (a case plan) to be prepared and maintained in respect of each prescribed child or young person. (2) Without limiting the matters that may be included in a case plan, each case plan must include such of the following parts as may be relevant to the prescribed child or young person's circumstances: (a) a part setting out decisions made at a family group conference; (b) a part setting out a cultural maintenance plan; (c) a part setting out a reunification plan; (d) a part setting out contact arrangements in respect of the child or young person; (e) a part setting out how disputes as to the matters included in the child or young person's case plan are to be resolved; (f) any other part required by any other provision of this Act or the regulations. (3) The Chief Executive may from time to time vary, substitute or revoke a case plan. (4) The regulations may make further provision in relation to the preparation of case plans (including, to avoid doubt, provisions requiring the Chief Executive to take certain steps in the course of preparing a case plan). (5) In this section— prescribed child or young person—each of the following is a prescribed child or young person: (a) a child or young person who is under the guardianship of the Chief Executive pursuant to this Act; (b) a child or young person who is under the guardianship of a person other than the Chief Executive pursuant to this Act (other than a child or young person in relation to whom an order contemplated by section 91 placing the child or young person into the long-term guardianship of a person has been made); (c) a child or young person who is in the custody of the Chief Executive or another person pursuant to this Act; (d) a child or young person who is in the care of an approved carer pursuant to this Act; (e) any other child or young person prescribed by the regulations for the purposes of this definition. 29—Chief Executive etc to give effect to case plan (1) Each person or body engaged in the administration, operation or enforcement of this Act must, to the extent that it is consistent with section 7 to do so, exercise their powers and perform their functions so as to give effect to a prescribed child or young person's case plan. (2) However, a case plan does not create legally enforceable rights or obligations on the part of the Crown, the Chief Executive, a child or young person or any other person. Chapter 5—Children and young people at risk Part 1—Reporting of suspicion that child or young person may be at risk 30—Application of Part (1) The requirements under this Part are in addition to the duty of every person to safeguard and promote the outcomes set out in section 4(2), and in particular the outcome that children and young people be kept safe from harm. (2) To avoid doubt, compliance with the requirements of this Part does not necessarily exhaust a duty of care that may be owed to a child or young person by a person to whom this Part applies. (3) This Part applies to the following persons: (a) prescribed health practitioners; (b) police officers; (c) community corrections officers under the Correctional Services Act 1982; (d) social workers; (e) ministers of religion; (f) employees of, or volunteers in, an organisation formed for religious or spiritual purposes; (g) teachers employed as such in a school (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) or a pre-school or kindergarten; (h) employees of, or volunteers in, an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children and young people, being a person who— (i) provides such services directly to children and young people; or (ii) holds a management position in the organisation the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children and young people; (i) any other person of a class prescribed by the regulations for the purposes of this subsection. (4) For the purposes of this Part, a reference to a person being employed will be taken to include a reference to a person who— (a) is a self‑employed person; or (b) carries out work under a contract for services; or (c) carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or (d) undertakes practical training as part of an educational or vocational course; or (e) carries out work as a volunteer, and a reference to something occurring in the course of the person's employment is to be construed accordingly. (5) In this section— prescribed health practitioners means— (a) medical practitioners; and (b) pharmacists; and (c) registered or enrolled nurses; and (d) dentists; and (e) psychologists; and (f) any other person prescribed by the regulations for the purposes of this definition. 31—Reporting of suspicion that child or young person may be at risk (1) A person to whom this Part applies must, if— (a) the person suspects on reasonable grounds that a child or young person is, or may be, at risk; and (b) that suspicion was formed in the course of the person's employment, report that suspicion, in accordance with subsection (4), as soon as is reasonably practicable after forming the suspicion. Maximum penalty: $10 000. (2) However, a person need not report a suspicion under subsection (1)— (a) if the person believes on reasonable grounds that another person has reported the matter in accordance with that subsection; or (b) if the person's suspicion was due solely to having been informed of the circumstances that gave rise to the suspicion by a police officer or child protection officer acting in the course of their official duties; or (c) in any other circumstances prescribed by the regulations for the purposes of this subsection. (3) A person to whom this Part applies may (but need not), if— (a) the person suspects on reasonable grounds that the physical or psychological development of an unborn child is at risk (whether due to an act or omission of the mother or otherwise); and (b) that suspicion was formed in the course of the person's employment, report that suspicion in accordance with subsection (4). (4) A person reports a suspicion under this section by doing 1 or more of the following: (a) making a telephone notification to a telephone number determined by the Minister for the purposes of this subsection; Note— This telephone line is currently known as the Child Abuse Report Line or CARL. (b) making an electronic notification on an electronic reporting system determined by the Minister for the purposes of this subsection; (c) by reporting their suspicion to a person of a class, or occupying a position of a class, specified by the Minister by notice in the Gazette; (d) reporting their suspicion in any other manner set out in the regulations for the purposes of this paragraph, and, in each case, providing— (e) — (i) in the case of an unborn child—the name and address (if known) of the mother of the unborn child; or (ii) in any other case—the name and address (if known) of the child or young person; and (f) information setting out the grounds for the person's suspicion; and (g) such other information as the person may wish to provide in relation to their suspicion. (5) Nothing in this section prevents a person from also reporting or referring a matter to any other appropriate person or body under any other Act. (6) This section does not limit or derogate from any other provision of this or any other Act. Part 2—Responding to reports etc that child or young person may be at risk 32—Chief Executive must assess each report indicating child or young person may be at risk (1) The Chief Executive must cause— (a) each report under section 31; and (b) any other report or notification made to the Department that a child or young person may be at risk (however described and whether or not received under this Act), to be assessed in accordance with any requirements set out in the regulations. (2) The Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State authority). (3) Without limiting any other action that may be taken by the Chief Executive, the Chief Executive must, on completion of an assessment under this section, cause at least 1 of the following actions to be taken: (a) an investigation into the circumstances of the child must be carried out under section 34; (b) if the Chief Executive is satisfied that an investigation under section 34 is unnecessary, having regard to such of the circumstances of the child as may already be known to the Chief Executive, an alternative response that, in the opinion of the Chief Executive, more appropriately addresses the risk to the child or young person must be implemented; (c) the matter must be referred to an appropriate State authority under section 33; (d) if the Chief Executive is satisfied that— (i) the matter has previously been dealt with under this or any other Act and there is no reason to reexamine the matter; or (ii) the matter is trivial, vexatious or frivolous; or (iii) there is good reason why no action should be taken in respect of the matter, the Chief Executive may decline to take further action. (4) The Chief Executive must, in accordance with any requirements set out in the regulations— (a) cause a record of each action taken under this section, and the reasons for the action, to be kept in relation to each report or notification made to the Department; and (b) include statistical information relating to action taken under this section to be included in the annual report of the Chief Executive under the Public Sector Act 2009. (5) The regulations may make further provision in relation to an assessment under this section (including provisions relating to a system referred to in subsection (2) and the disclosure and confidentiality of information gathered, collated or provided under the system). 33—Chief Executive may refer matter (1) If, following an assessment of a matter under section 32, the Chief Executive determines that it is more appropriate that a State authority other than the Department deal with the matter, or with a particular aspect of the matter, the Chief Executive must refer the matter to that State authority. (2) To avoid doubt— (a) a matter may be referred to more than 1 State authority; and (b) a matter may be dealt with under this section even if it is referred to a State authority under another Act. (3) The Chief Executive may, if the Chief Executive considers it appropriate, give directions or guidance in relation to a matter to a State authority to which the matter is referred. (4) Without limiting this section or any other Act or law, a State authority to which a matter is referred must deal with the matter in a timely manner, having regard to the need to ensure that children and young people are protected from harm. 34—Chief Executive may investigate circumstances of a child or young person (1) Subject to this Act, the Chief Executive may cause an investigation into the circumstances of a child or young person to be carried out— (a) if a report is made under section 31 and the Chief Executive suspects on reasonable grounds that the child or young person may be at risk; or (b) in any other circumstances that the Chief Executive thinks appropriate. (2) The Chief Executive must cause an investigation into the circumstances of a child or young person to be carried out if the Chief Executive issues an instrument of guardianship or a restraining notice in relation to a child or young person. (3) The regulations may make further provisions in relation to an investigation under this section. 35—Chief Executive may direct that child or young person be examined and assessed (1) This section applies to a child or young person— (a) who is, having been removed under section 41, in the custody of the Chief Executive; or (b) in relation to whom an order of the Court under section 53 authorising examination or assessment is in force; or (c) in relation to whom an instrument of guardianship or a restraining notice is in force; or (d) in any other circumstances prescribed by the regulations. (2) If the Chief Executive is of the opinion that it is necessary or desirable that a child or young person to whom this section applies be professionally examined or assessed, the Chief Executive may, by notice in writing, direct the child or young person to undergo such examination or assessment as may be specified in the notice. (3) If the Chief Executive gives a direction under subsection (2), an employee of the Department may take the child or young person to such persons or places (including admitting the child or young person to hospital) as may be specified in the notice for the purpose of having the child or young person professionally examined, assessed or treated. (4) Without otherwise limiting any Act or law regulating a particular health profession, a person to whom a child or young person is taken under this section may give such treatment to the child or young person as the person thinks necessary for alleviating any immediate injury or suffering of the child or young person. (5) Without otherwise limiting the Consent to Medical Treatment and Palliative Care Act 1995, a person who is to examine, assess or treat a child or young person in accordance with this section may do so despite the absence or refusal of the consent of the child or young person's parents or guardians. (6) A person who examines, assesses or treats a child or young person in accordance with this section must, as soon as practicable after doing so, provide to the Chief Executive a written report on the examination, assessment or treatment. Maximum penalty: $10 000. 36—Chief Executive may direct person to undergo certain assessments (1) If the Chief Executive reasonably suspects that a child or young person is at risk as a result of the abuse of a drug or alcohol (or both) by a parent, guardian or other person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved drug and alcohol assessment. (2) If the Chief Executive reasonably suspects that a child or young person is at risk as a result of a lack of parenting capacity on the part of a parent, guardian or other person who has, or is responsible for, the care of the child or young person, the Chief Executive may, by notice in writing, direct the parent, guardian or other person to undergo an approved parenting capacity assessment. (3) A person must not refuse or fail to comply with a direction under this section. Maximum penalty: Imprisonment for 6 months. (4) A notice under this section must set out the information required by the regulations for the purposes of this subsection. (5) The regulations may make further provision in relation to assessments under this section (including, to avoid doubt, provisions requiring the results of an assessment to be provided to the Chief Executive or some other specified person or body). (6) For the purposes of this section, a reference to an approved drug and alcohol assessment will be taken to be a reference to a drug and alcohol assess