Children and Community Services Act 2004

 

Children and Community Services Act 2004

CONTENTS

Part 1 — Preliminary

1.Short title2

2.Commencement2

3.Terms used2

4.Presumptions of parentage7

5.Status of notes7

Part 2 — Objects and principles

Division 1 — Objects

6.Objects8

Division 2 — General principles relating to children

7.Best interests of child are paramount consideration8

8.Determining the best interests of a child8

9.Principles to be observed10

10.Principle of child participation11

Division 3 — Principles relating to Aboriginal and Torres Strait Islander children

11.Relationship with principles in Division 213

12.Aboriginal and Torres Strait Islander child placement principle13

13.Principle of self‑determination14

14.Principle of community participation14

Part 3 — Administrative matters

Division 1 — The Minister

15.Agreements in respect of social services15

16.Delegation by Minister15

Division 2 — The Children and Community Services Ministerial Body

17.Term used: Ministerial Body16

18.Children and Community Services Ministerial Body16

19.Purpose and nature of Ministerial Body16

20.Execution of documents by Ministerial Body17

Division 3 — The CEO

21.Functions of CEO18

22.Cooperation and assistance20

23.CEO etc. may disclose or request relevant information20

24A.Authorities other than the Department may disclose or request information22

24.Delegation by CEO23

Division 4 — Authorised officers

25.Designation of authorised officers24

26.Identity cards24

Division 5 — Advisory bodies

27.Establishment of advisory bodies25

Part 4 — Protection and care of children

Division 1 — Introductory matters

28.When child is in need of protection26

29.Provisional protection and care, meaning and effect of27

30.When child is in the CEO’s care28

Division 2 — Measures to safeguard or promote child’s wellbeing

Subdivision 1 — General powers and duties of CEO

31.CEO may cause inquiries to be made about child28

32.CEO’s duties if action needed to safeguard etc. child’s wellbeing28

33A.CEO may cause inquiries to be made before child is born29

33B.CEO’s duties if action needed before child born to safeguard etc. child after birth30

Subdivision 2 — Powers relating to investigation

33.Access to child for purposes of investigation30

34.Warrant (access), application for and issue of31

Subdivision 3 — Provisional protection and care

35.Warrant (provisional protection and care), application for and issue of32

36.CEO’s duty if child taken into provisional protection and care under warrant33

37.Taking child into provisional protection and care without warrant in certain circumstances34

38.CEO’s duties etc. if child taken into provisional protection and care without warrant34

39.Provisional care plans, preparation etc. of36

Subdivision 4 — Other powers

40.Power to keep child under 6 years of age in hospital37

41.Power to move child to safe place38

Division 3 — Protection orders

Subdivision 1 — Introductory matters

42.Terms used40

43.Term used: protection order40

Subdivision 2 — Applications for, and making of, protection orders

44.Application for protection order41

45.Court may make protection order42

46.No order principle42

Subdivision 3 — Protection orders (supervision)

47.Protection order (supervision)42

48.Duration of protection order (supervision)42

49.Extension of protection order (supervision)42

50.Conditions of protection order (supervision)43

51.Variation of conditions of protection order (supervision)44

52.Access to child by authorised officer while protection order (supervision) in force44

53.Provision of social services45

Subdivision 4 — Protection orders (time‑limited)

54.Protection order (time‑limited)45

55.Duration of protection order (time‑limited)45

56.Extension of protection order (time‑limited)46

Subdivision 5 — Protection orders (until 18)

57.Protection order (until 18)47

58.Restriction on making protection order (until 18)47

59.Duration of protection order (until 18)47

Subdivision 6 — Protection orders (special guardianship)

60.Protection order (special guardianship)47

61.Restriction on making protection order (special guardianship)48

62.Duration of protection order (special guardianship)49

63.Conditions of protection order (special guardianship)49

64.Variation of conditions49

65.Court may order payments to special guardian50

66.Provision of social services50

Subdivision 7 — Revocation and replacement of protection orders

67.Revocation of protection order51

68.Replacement of protection order: application by CEO51

69A.Replacement of protection order (time‑limited) or protection order (until 18): application by carer52

Subdivision 8 — General

69.Applications for extension, variation, revocation or replacement of protection orders53

70.Form of protection order53

71.Child’s date of birth53

72.Parties to proceedings to be given copy of protection order54

73.Maintenance of children under certain orders54

Division 4 — Negotiated placement

74.Term used: child55

75.Negotiated placement agreement55

76.Duration of negotiated placement agreement56

77.Termination of negotiated placement agreement56

Division 5 — Children in the CEO’s care

Subdivision 1 — Charter of Rights

78.Preparation etc. of Charter of Rights57

Subdivision 2 — Placement arrangements

79.CEO may arrange placement of child57

80.Guidelines for placement of certain children58

81.Consultation before placement of Aboriginal or Torres Strait Islander child59

82.Payment for care under placement arrangement59

83.Inspection of place where child living59

84.Authorised officer may require person to hand over child59

85.Warrant (apprehension) where child not handed over60

86.Warrant (apprehension) where child absent or taken without authority60

87.Apprehension without warrant in certain circumstances61

Subdivision 3A — Secure care arrangements

88A.Terms used62

88B.Secure care facilities62

88C.Secure care arrangements for certain children62

88D.Period in secure care facility63

88E.Continuation order required for certain provisionally protected children64

88F.CEO to decide secure care period for protected child65

88G.Reconsideration of certain decisions as to protected child65

88H.Review of CEO’s decision66

88I.Requirements for care plan or provisional care plan66

88J.Apprehension without warrant of child absent from secure care facility68

Subdivision 3 — Care plans

88.Term used: parent68

89.Care plans, preparation etc. of68

90.Review of care plan70

Subdivision 4 — Review of care planning decisions

91.Terms used70

92.Case review panel71

93.Initial review72

94.Review of CEO’s decision73

95.Procedure73

Division 6 — Provisions about leaving the CEO’s care

96.People who qualify for assistance73

97.Child’s entitlement to personal material74

98.Provision of social services74

99.Provision of assistance to obtain accommodation etc.75

100.Provision of financial assistance75

Division 7 — Offences

Subdivision 1 — Children generally

101.Failing to protect child from harm76

102.Leaving child unsupervised in vehicle76

103.Tattooing or branding77

104A.Body piercing77

104.Providing long‑term care for young children78

Subdivision 2 — Children under placement arrangements or secure care arrangements

105.Terms used80

106.Removing child from State80

107.Removing child from place of residence80

108.Harbouring child absent from place of residence81

109.Preventing child’s return to place of residence81

110.CEO may prohibit communication with child82

111.Evidentiary provision82

Division 8 — Powers of restraint, search and seizure

112.Terms used82

113A.Approving persons for purposes of this Division83

113.Prerequisites for exercise of power83

114.Child may be restrained85

115.Child may be searched85

116.Certain articles may be seized86

117.How seized articles to be dealt with86

118.Use of reasonable force87

119.Prescribed procedures87

Division 9 — Warrants

120.Applying for warrants87

121.Warrant (access), effect of89

122.Warrant (apprehension), effect of90

123.Warrant (provisional protection and care), effect of91

124.Execution of warrant91

Division 9A — Reporting sexual abuse of children

124A.Terms used92

124B.Duty of certain people to report sexual abuse of children94

124C.Reports under s. 124B, form and content of95

124D.CEO to give copies of reports under s. 124B to police96

124E.Time limit for prosecuting offences under s. 124B and 124C97

124F.Confidentiality of reporter’s identity97

124G.Evidence and legal proceedings99

124H.Orders, leave of courts etc. under s. 124F or 124G100

Division 10 — General

125A.Assessors, appointment and functions of101

125B.Identity cards for assessors102

125.Access to child, meaning of103

126.Recovery of certain expenditure103

127.CEO may give consent in lieu of parent in some cases104

128.Records of children in CEO’s care to be kept104

129.Protection from liability for giving information105

130.General powers of police officers not affected106

Part 5 — Protection proceedings

Division 1 — Terms used in this Part

131.Terms used107

Division 2 — Adjournment and interim orders

132.Adjournment of proceedings107

133.Interim orders107

134A.Interim orders (secure care)109

134.Variation or revocation of interim order110

135.Access to child by authorised officer while interim order in force110

Division 3A — Orders for determination of parentage

136A.Terms used111

136B.Orders requiring person to give evidence111

136C.Parentage testing orders112

136D.Orders associated with parentage testing orders112

136E.Adult contravening s. 136D order, consequences of113

136F.Procedure etc. ordered for child, parental consent needed in some cases, consequences of refusing to consent114

136G.No liability if parent or CEO consents114

136H.Parentage testing procedures, conduct of etc.115

136I.Results of parentage testing procedures admissible in protection proceedings115

Division 3 — Pre‑hearing conferences

136.Court may order pre‑hearing conference115

137.Confidentiality of pre‑hearing conference116

Division 4 — Reports about child

138.Term used: report118

139.Court may require report118

140.Access to written report119

141.Confidentiality of report119

142.Protection from liability for preparing or giving report120

Division 5 — Proposals about arrangements for child

143.CEO to provide Court with proposal for child120

144.Court to consider proposal122

Division 6 — Procedural matters

145.Conduct of protection proceedings generally122

146.Court not bound by rules of evidence122

147.Parties to protection proceedings123

148.Legal representation of child123

149.Presence of child in court124

150.Evidence of child125

151.Standard of proof125

152.Intervention by Attorney General125

153.Court to facilitate party’s participation in proceedings125

154.Court may dispense with requirement for service126

155.Frivolous or vexatious proceedings126

Part 6 — Transfer of child protection orders and proceedings

Division 1 — Introductory matters

156.Purpose of Part128

157.Terms used128

Division 2 — Transfer of child protection orders

Subdivision 1 — Administrative transfers

158.When CEO may transfer home order131

159.Persons whose consent is required under s. 158(1)(d)132

160.CEO to have regard to certain matters133

161.Notification of decision to transfer133

162.Judicial review of CEO’s decision134

163.Review by State Administrative Tribunal134

Subdivision 2 — Judicial transfers

164.When Court may transfer home order135

165.Service of application under s. 164135

166.Court to have regard to certain matters135

167.Proposed interstate orders, terms of136

168.Court not to make s. 164 order without report from CEO136

169.Appeals136

Division 3 — Transfer of child protection proceedings

170.When Court may transfer child protection proceeding137

171.Service of application under s. 170138

172.Court to have regard to certain matters138

173.Interim order139

174.Appeals139

Division 4 — Registration

175.Filing interstate orders in Court141

176.Registering interstate orders141

177.Notification by registrar of Court141

178.Effect of registration142

179.Revocation of registration142

Division 5 — General

180.Legal representation of child143

181.Effect of registration of transferred order143

182.Transfer of Court file144

183.Hearing and determination of transferred proceeding144

184.Disclosure of information144

185.Discretion of CEO to consent to transfer145

186.Evidence of consent of relevant interstate officer145

187.Offence to remove certain children from where they live146

Part 7 — Employment of children

188.Terms used147

189.School Education Act 1999 not affected147

190.Child under 15 not to be employed in business etc.147

191.Exceptions to s. 190148

192.Children not to be employed to perform in indecent manner etc.149

193.CEO may prohibit or limit employment of child150

194A.CEO may prohibit or limit employment of children in particular business or place151

194.False information to employers etc.152

195.Powers of authorised officers153

196.Role of industrial inspectors and industrial magistrate’s courts154

Part 9 — Provision of financial or other assistance

233.CEO may provide financial or other assistance155

234.CEO may assist with funeral expenses155

235.Application for assistance155

236.Recovery of overpayments in certain circumstances156

Part 10 — Confidentiality provisions

237.Restriction on publication of certain information or material157

238.Production of departmental records in legal proceedings158

239.Objection to disclosure of certain information during legal proceedings160

240.Restrictions on disclosing notifier’s identity161

241.Restrictions on disclosing information obtained under this Act164

Part 11 — Other matters

242A.CEO to notify Ombudsman of certain deaths of children166

242.Obstruction166

243.Impersonating assessor or authorised officer167

244.False information in applications etc.167

245.Legal proceedings, commencement of167

246.Protection from liability for wrongdoing168

247.Effect of provision requiring document to be given to particular person or child168

248.Regulations169

249.Review of Act169

250.Repeal, transitional and savings provisions170

Schedule 1 — Transitional and savings provisions

Division 1 — Introductory matters

1.Terms used171

2.Interpretation Act 1984 not affected171

Division 2 — Provisions related to repeal of Child Welfare Act 1947

3.Existing orders171

4.Extended orders172

5.Existing proceedings172

6.Existing appeals173

7.Records under s. 11173

8.Operation of orders under s. 13 or 14173

9.Children detained under s. 29(3a)173

10.Orders under s. 40A174

11.Applications under s. 47174

12.Notices under s. 107A or 107B174

13.Warrants under s. 67174

14.Authorisations under s. 111 or 112174

15.Orders and proceedings under Part VIIIA174

16.Orders under s. 146A175

Division 3 — Provisions related to repeal of Community Services Act 1972

17.Status of Ministerial Body175

18.Licences and permits under s. 17B175

19.Applications under s. 17B175

20.Appeals under s. 17C176

21.Bodies established under s. 22176

Division 4 — Provisions related to repeal of Welfare and Assistance Act 1961

22.Advances and grants of assistance176

23.Applications for assistance177

Division 5 — General provisions for transition to this Act

24.References to repealed Acts177

25.Powers in relation to transitional matters177

Division 6 — Provisions for the Children and Community Services Amendment Act 2010

26.Authorised officers178

27.Ministerial Body178

28.Protection orders (enduring parental responsibility)179

Notes

Compilation table180

Provisions that have not come into operation181

Defined Terms

 

Children and Community Services Act 2004

An Act —

·to confer functions in relation to the provision of social services, the provision of financial and other assistance, and other matters concerning the wellbeing of children, other individuals, families and communities;

·to make provisions about the protection and care of children and the employment of children;

·to repeal the Child Welfare Act 1947;

·to repeal the Community Services Act 1972;

·to repeal the Welfare and Assistance Act 1961;

·to amend certain Acts 2,

and to provide for related matters.

[Long title amended by No. 19 of 2007 s. 63.]

Part 1 Preliminary

1.Short title

This Act may be cited as the Children and Community Services Act 2004 1.

2.Commencement

(1)This Act comes into operation on a day fixed by proclamation 1.

(2)Different days may be fixed under subsection (1) for different provisions.

3.Terms used

In this Act, unless the contrary intention appears —

Aboriginal person means a person who is a descendant of Aboriginal people of Australia , and Aboriginal child has a corresponding meaning;

adult means a person who has reached 18 years of age;

assessor means a person appointed to be an assessor under section 125A(2);

authorised officer means an officer designated under section 25 for the purposes of this Act or for the purposes of the provision in which the term is used;

carer means a person who provides care for a child under a placement arrangement;

CEO means the chief executive officer of the Department;

child means a person who is under 18 years of age, and in the absence of positive evidence as to age, means a person who is apparently under 18 years of age;

Court means the Children’s Court;

Department means the department of the Public Service principally assisting the Minister in the administration of this Act;

disability means a disability —

(a)that is attributable to an intellectual, psychiatric, cognitive, neurological, sensory, or physical impairment or a combination of those impairments; and

(b)that is permanent or likely to be permanent; and

(c)that may or may not be of a chronic or episodic nature; and

(d)that results in —

(i)a substantially reduced capacity of the person for communication, social interaction, learning or mobility; and

(ii)a need for continuing support services;

first listing date, in relation to a protection application, means the day fixed under section 44(4) in respect of the application;

harm, in relation to a child, includes harm to the child’s physical, emotional or psychological development;

in need of protection has the meaning given to that term in section 28(2);

in the CEO’s care has the meaning given to that term in section 30;

interim order, except in Part 6, means an order made under section 133;

interim order (secure care) means an order under section 133(2)(ca);

judge means a judge of the Court;

magistrate means a magistrate of the Court;

negotiated placement agreement means an agreement under section 75(1);

officer means a person employed in, or engaged by, the Department whether as a public service officer under the Public Sector Management Act 1994, under a contract for services, or otherwise;

parent, in relation to a child, means a person, other than the CEO, who at law has responsibility for —

(a)the long‑term care, welfare and development of the child; or

(b)the day‑to‑day care, welfare and development of the child;

parental responsibility, in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children;

party, in relation to protection proceedings, means a person who is a party to the proceedings under section 147;

place means anywhere at all, and includes anywhere in or on something that is moving or can move;

placement arrangement means an arrangement under section 79(2) for the placement of a child;

police officer has the meaning given to that term in the Protective Custody Act 2000 section 3;

pre‑hearing conference means a conference referred to in section 136(1);

protection application means an application to the Court for a protection order;

protection order has the meaning given to that term in section 43;

protection order (special guardianship) has the meaning given in section 60;

protection order (supervision) has the meaning given to that term in section 47;

protection order (time‑limited) has the meaning given to that term in section 54;

protection order (until 18) has the meaning given to that term in section 57;

protection proceedings means proceedings in respect of, or in connection with, a protection application or other application to the Court under Part 4 (excluding an application under section 65, 73 or 126);

provisional protection and care has the meaning given to that term in section 29(1);

public authority means —

(a)a department of the Public Service; or

(b)a State agency or instrumentality; or

(c)a local government or regional local government; or

(d)a body, whether corporate or unincorporate, or the holder of an office, post or position, established or continued for a public purpose under a written law;

relative, in relation to a child, means each of the following people —

(a)the child’s —

(i)parent, grandparent or other ancestor;

(ii)step‑parent;

(iii)sibling;

(iv)uncle or aunt;

(v)cousin;

(vi)spouse or de facto partner,

whether the relationship is established by, or traced through, consanguinity, marriage, a de facto relationship, a written law or a natural relationship;

(b)in the case of an Aboriginal child, a person regarded under the customary law or tradition of the child’s community as the equivalent of a person mentioned in paragraph (a);

(c)in the case of a Torres Strait Islander child, a person regarded under the customary law or tradition of the Torres Strait Islands as the equivalent of a person mentioned in paragraph (a);

residential facility means a place that —

(a)is used to provide accommodation for children in the CEO’s care; and

(b)is operated or managed by —

(i)the Department; or

(ii)another public authority; or

(iii)a person who has entered into an agreement under section 15(1) for the provision of placement services,

but does not include a secure care facility;

secure care arrangement has the meaning given in section 88C(1);

secure care facility means a place declared to be a secure care facility under section 88B(1);

service provider means a person who —

(a)provides or promotes social services; or

(b)conducts research and development,

under an agreement referred to in section 15(1);

social services means services provided to assist children, other individuals, families and communities including, but not limited to, the following services —

(a)preventative services;

(b)protective services;

(c)placement services;

(d)child care services;

(e)information and advisory services;

(f)education and training services;

(g)counselling services;

(h)therapeutic services;

(i)advocacy services;

(j)mediation services;

(k)crisis services;

(l)family and domestic violence services;

(m)support services;

Torres Strait Islander means a person who is a descendant of the indigenous inhabitants of the Torres Strait Islands, and Torres Strait Islander child has a corresponding meaning;

wellbeing of a child includes the care, development, health and safety of the child;

working day, except in Part 6, means a day other than a Saturday, Sunday, public holiday or public service holiday.

[Section 3 amended by No. 8 of 2009 s. 32(2); No. 49 of 2010 s. 4, 24 and 37.]

4.Presumptions of parentage

(1)The presumptions of parentage set out in the Family Court Act 1997 Part 5 Division 11 Subdivision 3 apply when considering, for the purposes of Parts 4 and 5, who is a parent of a child.

(2)The Family Court Act 1997 section 193 applies, for the purposes of Parts 4 and 5, in relation to the presumptions referred to in subsection (1).

5.Status of notes

Notes in this Act are provided to assist understanding and do not form part of this Act.

Part 2 — Objects and principles

Division 1 — Objects

6.Objects

The objects of this Act are —

(a)to promote the wellbeing of children, other individuals, families and communities; and

(b)to acknowledge the primary role of parents, families and communities in safeguarding and promoting the wellbeing of children; and

(c)to encourage and support parents, families and communities in carrying out that role; and

(d)to provide for the protection and care of children in circumstances where their parents have not given, or are unlikely or unable to give, that protection and care; and

(e)to protect children from exploitation in employment.

[Section 6 amended by No. 19 of 2007 s. 64.]

Division 2 — General principles relating to children

7.Best interests of child are paramount consideration

In performing a function or exercising a power under this Act in relation to a child, a person, the Court or the State Administrative Tribunal must regard the best interests of the child as the paramount consideration.

[Section 7 amended by No. 49 of 2010 s. 38.]

8.Determining the best interests of a child

(1)In determining for the purposes of this Act what is in a child’s best interests the following matters must be taken into account —

(a)the need to protect the child from harm;

(b)the capacity of the child’s parents to protect the child from harm;

(c)the capacity of the child’s parents, or of any other person, to provide for the child’s needs;

(d)the nature of the child’s relationship with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;

(e)the attitude to the child, and to parental responsibility, demonstrated by the child’s parents;

(f)any wishes or views expressed by the child, having regard to the child’s age and level of understanding in determining the weight to be given to those wishes or views;

(g)the importance of continuity and stability in the child’s living arrangements and the likely effect on the child of disruption of those living arrangements, including separation from —

(i)the child’s parents; or

(ii)a sibling or other relative of the child; or

(iii)a carer or any other person (including a child) with whom the child is, or has recently been, living; or

(iv)any other person who is significant in the child’s life;

(h)the need for the child to maintain contact with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;

(i)the child’s age, maturity, sex, sexuality, background and language;

(j)the child’s cultural, ethnic or religious identity (including any need to maintain a connection with the lifestyle, culture and traditions of Aboriginal people or Torres Strait Islanders);

(k)the child’s physical, emotional, intellectual, spiritual, developmental and educational needs;

(l)any other relevant characteristics of the child;

(m)the likely effect on the child of any change in the child’s circumstances.

(2)Subsection (1) does not limit the matters that may be taken into account in determining what is in the best interests of a child.

9.Principles to be observed

In the administration of this Act the following principles must be observed —

(a)the principle that the parents, family and community of a child have the primary role in safeguarding and promoting the child’s wellbeing;

(b)the principle that the preferred way of safeguarding and promoting a child’s wellbeing is to support the child’s parents, family and community in the care of the child;

(c)the principle that every child should be cared for and protected from harm;

(d)the principle that every child should live in an environment free from violence;

(e)the principle that every child should have stable, secure and safe relationships and living arrangements;

(f)the principle that intervention action (as defined in section 32(2)) should be taken only in circumstances where there is no other reasonable way to safeguard and promote the child’s wellbeing;

(g)the principle that if a child is removed from the child’s family then, so far as is consistent with the child’s best interests, the child should be given encouragement and support in maintaining contact with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life;

(ha)the principle that if a child is removed from the child’s family then, so far as is consistent with the child’s best interests, planning for the child’s care should occur as soon as possible in order to ensure long‑term stability for the child;

(h)the principle that decisions about a child should be made promptly having regard to the age, characteristics, circumstances and needs of the child;

(i)the principle that decisions about a child should be consistent with cultural, ethnic and religious values and traditions relevant to the child;

(j)the principle that a child’s parents and any other people who are significant in the child’s life should be given an opportunity and assistance to participate in decision‑making processes under this Act that are likely to have a significant impact on the child’s life;

(k)the principle that a child’s parents and any other people who are significant in the child’s life should be given adequate information, in a manner and language that they can understand, about —

(i)decision‑making processes under this Act that are likely to have a significant impact on the child’s life; and

(ii)the outcome of any decision about the child, including an explanation of the reasons for the decision; and

(iii)any relevant complaint or review procedures;

(l)the principle set out in section 10(1).

[Section 9 amended by No. 49 of 2010 s. 39.]

10.Principle of child participation

(1)If a decision under this Act is likely to have a significant impact on a child’s life then, for the purpose of ensuring that the child is able to participate in the decision‑making process, the child should be given —

(a)adequate information, in a manner and language that the child can understand, about —

(i)the decision to be made; and

(ii)the reasons for the Department’s involvement; and

(iii)the ways in which the child can participate in the decision‑making process; and

(iv)any relevant complaint or review procedures;

and

(b)the opportunity to express the child’s wishes and views freely, according to the child’s abilities; and

(c)any assistance that is necessary for the child to express those wishes and views; and

(d)adequate information as to how the child’s wishes and views will be recorded and taken into account; and

(e)adequate information about the decision made and a full explanation of the reasons for the decision; and

(f)an opportunity to respond to the decision made.

(2)In the application of the principle set out in subsection (1), due regard must be had to the age and level of understanding of the child concerned.

(3)Decisions under this Act that are likely to have a significant impact on a child’s life include but are not limited to —

(a)decisions about placement arrangements or secure care arrangements in respect of the child; and

(b)decisions in the course of preparing, modifying or reviewing care plans or provisional care plans for the child; and

(c)decisions about the provision of social services to the child; and

(d)decisions about contact with the child’s parents, siblings and other relatives and with any other people who are significant in the child’s life.

(4)In subsection (3)(b) —

care plan has the meaning given to that term in section 89(1);

provisional care plan has the meaning given to that term in section 39(1).

[Section 10 amended by No. 49 of 2010 s. 5.]

Division 3 — Principles relating to Aboriginal and Torres Strait Islander children

11.Relationship with principles in Division 2

The principles set out in this Division are in addition to, and do not derogate from, the principles set out in Division 2.

12.Aboriginal and Torres Strait Islander child placement principle

(1)The objective of the principle in subsection (2) is to maintain a connection with family and culture for Aboriginal children and Torres Strait Islander children who are the subject of placement arrangements.

(2)In making a decision under this Act about the placement under a placement arrangement of an Aboriginal child or a Torres Strait Islander child, a principle to be observed is that any placement of the child must, so far as is consistent with the child’s best interests and is otherwise practicable, be in accordance with the following order of priority —

(a)placement with a member of the child’s family;

(b)placement with a person who is an Aboriginal person or a Torres Strait Islander in the child’s community in accordance with local customary practice;

(c)placement with a person who is an Aboriginal person or a Torres Strait Islander;

(d)placement with a person who is not an Aboriginal person or a Torres Strait Islander but who, in the opinion of the CEO, is sensitive to the needs of the child and capable of promoting the child’s ongoing affiliation with the child’s culture, and where possible, the child’s family.

[Section 12 amended by No. 49 of 2010 s. 40.]

13.Principle of self‑determination

In the administration of this Act a principle to be observed is that Aboriginal people and Torres Strait Islanders should be allowed to participate in the protection and care of their children with as much self‑determination as possible.

14.Principle of community participation

In the administration of this Act a principle to be observed is that a kinship group, community or representative organisation of Aboriginal people or Torres Strait Islanders should be given, where appropriate, an opportunity and assistance to participate in decision‑making processes under this Act that are likely to have a significant impact on the life of a child who is a member of, or represented by, the group, community or organisation.

Part 3Administrative matters

Division 1 — The Minister

15.Agreements in respect of social services

(1)The Minister may, on behalf of the State, enter into an agreement with a person for —

(a)the provision or promotion of social services by that person; or

(b)the conduct of research and development by that person in relation to the provision of social services.

(2)An agreement under subsection (1) may contain any provisions that the Minister considers appropriate.

(3)Nothing in this section limits any power that the Minister has, apart from this section, to enter into an agreement or other arrangement.

[Section 15 amended by No. 49 of 2010 s. 41.]

16.Delegation by Minister

(1)The Minister may delegate to the CEO any power or duty of the Minister under another provision of this Act.

(2)Without limiting the powers or duties that may be delegated under subsection (1), they include any power to be exercised or duty to be performed in the course of governing the affairs of the Ministerial Body under section 18(4).

(3)The delegation must be in writing signed by the Minister.

(4)The delegation may expressly authorise the CEO to further delegate the power or duty.

(5)A person exercising or performing a power or duty that has been delegated to the person under, or as authorised under, this section, is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(6)Nothing in this section limits the ability of the Minister to perform a function through an officer or agent.

[Section 16 amended by No. 49 of 2010 s. 42.]

Division 2The Children and Community Services Ministerial Body

[Heading amended by No. 49 of 2010 s. 43.]

17.Term used: Ministerial Body

In this Division —

Ministerial Body means the body referred to in section 18(1).

[Section 17 amended by No. 49 of 2010 s. 44.]

18. Children and Community Services Ministerial Body

(1)The body previously established by this section as the Community Development Ministerial Body is renamed the Children and Community Services Ministerial Body.

(2)The Ministerial Body is a body corporate with perpetual succession.

(3)Proceedings may be taken by or against the Ministerial Body in its corporate name.

(4)The Ministerial Body is to be governed by the Minister.

(5)The Ministerial Body is an agent of the State and has the status, immunities and privileges of the State.

[Section 18 amended by No. 49 of 2010 s. 45.]

19.Purpose and nature of Ministerial Body

(1)The Ministerial Body is established to provide a body corporate through which the Minister can perform any of the Minister’s functions under or for the purposes of this Act that can more conveniently be performed by a body corporate than an individual.

(2)Despite the employment under the Public Sector Management Act 1994 of ministerial officers for the purpose of assisting the Minister to perform functions that the Minister performs through the Ministerial Body, the Ministerial Body and those officers are not an organisation for the purposes of that Act.

[Section 19 amended by No. 49 of 2010 s. 46.]

20.Execution of documents by Ministerial Body

(1)The Ministerial Body is to have a common seal.

(2)A document is duly executed by the Ministerial Body if —

(a)the common seal of the Ministerial Body is affixed to it in accordance with subsections (3) and (4); or

(b)it is signed on behalf of the Ministerial Body by the Minister; or

(c)it is signed on behalf of the Ministerial Body, as authorised under subsection (5), by the CEO or another person.

(3)The common seal of the Ministerial Body is not to be affixed to a document except as authorised by the Ministerial Body.

(4)The common seal of the Ministerial Body is to be affixed to a document in the presence of the Minister, and the Minister is to sign the document to attest that the common seal was so affixed.

(5)The Ministerial Body may, by writing under its common seal, authorise the CEO or another officer to sign documents on behalf of the Ministerial Body, either generally or subject to any conditions or restrictions specified in the authorisation.

(6)A document purporting to be executed in accordance with this section is to be presumed to be duly executed until the contrary is shown.

(7)A document executed by the CEO or another person under this section without the common seal of the Ministerial Body is not to be regarded as a deed unless it is executed as a deed as authorised under subsection (5).

(8)When a document is produced bearing a seal purporting to be the common seal of the Ministerial Body, it is to be presumed that the seal is the common seal of the Ministerial Body until the contrary is shown.

(9)For the purposes of this Act, a facsimile of —

(a)the Ministerial Body’s common seal; or

(b)the signature of the Minister or a person authorised under subsection (5) to execute deeds or other documents,

may be used, and a deed or other document purporting to be endorsed with such a facsimile is, until the contrary is shown, to be regarded as bearing the facsimile under this subsection.

Division 3The CEO

21.Functions of CEO

(1)The functions of the CEO include —

(a)to consider and initiate, or assist in, the provision of social services to children, other individuals, families and communities; and

(b)to take, or cause to be taken, any action, not inconsistent with this Act, in respect of a child or a class or group of children that the CEO considers reasonably necessary for the purpose of safeguarding or promoting the wellbeing of the child or children concerned; and

(ca)to control and manage the property of children who are the subject of a protection order (time‑limited) or protection order (until 18); and

(c)to provide, and where appropriate, manage facilities (including land, buildings and other property) for purposes consistent with the objects of this Act; and

(d)to establish procedures for dealing with complaints about social services provided under this Act or otherwise relating to the administration of this Act; and

(e)to promote, encourage, conduct and publish research on matters relating to the objects of this Act; and

(f)to collect and publish, or assist in the collection and publication of, information and statistics on matters relating to the objects of this Act.

(2)In performing functions under this Act and in assisting the Minister in the administration of this Act, the CEO must have regard to —

(a)the need to promote the wellbeing of children, other individuals, families and communities;

(b)the need to encourage a collaborative approach between public authorities, non‑government agencies and families —

(i)in the provision of social services directed towards strengthening families and communities and maximising the wellbeing of children and other individuals; and

(ii)in responding to child abuse and neglect;

(c)the need to promote diversity and increased participation in community life, giving particular consideration to the interests and aspirations of —

(i)children and other young people; and

(ii)Aboriginal people and Torres Strait Islanders; and

(iii)people from culturally or linguistically diverse backgrounds; and

(iv)people with disabilities; and

(v)women and men of all ages as distinct groups within society;

(d)the need to promote the development and strengthening of families and communities so that they have the capacity to achieve self‑reliance and to provide for the care and wellbeing of their members.

[Section 21 amended by No. 49 of 2010 s. 47.]

22.Cooperation and assistance

(1)In performing functions under this Act, the CEO must endeavour to work in cooperation with public authorities, non‑government agencies and service providers.

(2)The CEO must promote the establishment, implementation and regular review of procedures that facilitate such cooperation particularly in relation to the protection and care of children and the provision of financial or other assistance.

(3)If the CEO considers that a public authority or service provider can assist in the performance of functions under this Act, the CEO may request the assistance of that authority or provider, specifying the assistance that is sought.

(4A)In subsection (3) —

assistance includes the provision of advice, facilities and services.

(4)A public authority or service provider must endeavour to comply with a request under subsection (3) promptly if compliance is consistent with its duties and responsibilities and does not unduly prejudice the performance of its functions.

(5)Nothing in this section is to be taken to limit the operation of section 23.

[Section 22 amended by No. 49 of 2010 s. 48.]

23. CEO etc. may disclose or request relevant information

(1)In this section —

Commonwealth agency means —

(a)a department of the Public Service of the Commonwealth; or

(b)a Commonwealth agency or instrumentality; or

(c)a body, whether corporate or unincorporate, or the holder of an office, post or position, established or continued for a public purpose under a law of the Commonwealth;

corresponding authority means a person in another State or a Territory, or another country, who has functions corresponding to those of the CEO under this Act;

interested person means a person who, in the opinion of the CEO, has a direct interest in the wellbeing of a child or a class or group of children;

relevant information means information that, in the opinion of the CEO, is, or is likely to be, relevant to —

(a)the wellbeing of a child or a class or group of children; or

(b)the performance of a function under this Act.

(2)The CEO or an authorised officer may disclose relevant information to a public authority, a Commonwealth agency, a corresponding authority, a service provider or an interested person.

(3)The CEO or an authorised officer may request a public authority, a Commonwealth agency, a corresponding authority, a service provider or an interested person who or which holds relevant information to disclose the information to the CEO or authorised officer, as the case requires.

(4)Information may be disclosed under subsection (2), or in compliance with a request under subsection (3), despite any written law relating to secrecy or confidentiality.

(5)If information is disclosed, in good faith, under subsection (2) or in compliance with a request under subsection (3) —

(a)no civil or criminal liability is incurred in respect of the disclosure; and

(b)the disclosure is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and

(c)the disclosure is not to be regarded as a breach of professional ethics or standards or any principles of conduct applicable to the person’s employment or as unprofessional conduct.

(6A)Subsection (5) does not apply to the disclosure of information by a Commonwealth agency or a corresponding authority in compliance with a request under subsection (3).

(6)The CEO must establish procedures for the disclosure of information under subsection (2).

(7)The regulations may include provisions about —

(a)the receipt and storage of information disclosed under this section; and

(b)the restriction of access to such information.

[Section 23 amended by No. 26 of 2008 s. 4; No. 49 of 2010 s. 49.]

24A.Authorities other than the Department may disclose or request information

(1)In this section —

CEO, of a prescribed authority, means —

(a)for an entity referred to in paragraph (a), (b) or (c) of the definition of public authority in section 3 — the principal officer (however described) of that entity; or

(b)for a body referred to in paragraph (d) of the definition of public authority in section 3 — the principal officer (however described) of that body; or

(c)for the holder of an office, post or position referred to in paragraph (d) of the definition of public authority in section 3 — that holder;

prescribed authority means a public authority, other than the Department, prescribed for the purposes of this definition.

(2)The CEO of a prescribed authority (the disclosing CEO) may disclose information to the CEO of another prescribed authority if, in the opinion of the disclosing CEO, the information is, or is likely to be, relevant to the wellbeing of a child or a class or group of children.

(3)The CEO of a prescribed authority (the requesting CEO) may request the CEO of another prescribed authority to disclose information to the requesting CEO if, in the opinion of the requesting CEO, the information is, or is likely to be, relevant to the wellbeing of a child or a class or group of children.

(4)Information may be disclosed under subsection (2), or in compliance with a request under subsection (3), despite any written law relating to secrecy or confidentiality.

(5)If information is disclosed, in good faith, under subsection (2) or in compliance with a request under subsection (3) —

(a)no civil or criminal liability is incurred in respect of the disclosure; and

(b)the disclosure is not to be regarded as a breach of any duty of confidentiality or secrecy imposed by law; and

(c)the disclosure is not to be regarded as a breach of professional ethics or standards or any principles of conduct applicable to a person’s employment or as unprofessional conduct.

(6)The CEO of a prescribed authority may, in writing, delegate to an officer or employee of the prescribed authority the powers in subsections (2) and (3).

[Section 24A inserted by No. 49 of 2010 s. 50.]

24.Delegation by CEO

(1)The CEO may delegate to an officer, a service provider or another person any power or duty of the CEO under another provision of this Act.

(2)The delegation must be in writing signed by the CEO.

(3)The delegation may expressly authorise the delegate to further delegate the power or duty.

(4)A person exercising or performing a power or duty that has been delegated to the person under, or as authorised under, this section, is to be taken to do so in accordance with the terms of the delegation unless the contrary is shown.

(5)Nothing in this section limits the ability of the CEO to perform a function through an officer or agent.

[Section 24 amended by No. 49 of 2010 s. 51.]

Division 4Authorised officers

25.Designation of authorised officers

The CEO may, in writing, designate officers to be authorised officers —

(a)generally for the purposes of this Act; or

(b)for the purposes of a provision of this Act specified in the designation.

[Section 25 inserted by No. 49 of 2010 s. 52.]

26.Identity cards

(1)The CEO must ensure that each authorised officer is issued with an identity card in a form approved by the CEO.

(2)An authorised officer must display his or her identity card whenever dealing with a person in respect of whom the officer has exercised, is exercising, or is about to exercise, a power under this Act.

(3)In any proceedings the production by an authorised officer of his or her identity card is conclusive evidence of his or her designation under section 25.

[Section 26 amended by No. 49 of 2010 s. 53.]

Division 5Advisory bodies

27.Establishment of advisory bodies

(1)In this section —

advisory body means a body established under subsection (2).

(2)The Minister may establish one or more bodies to provide advice or assistance to the Minister or the CEO on matters relevant to the operation or administration of this Act.

(3)Subsection (2) does not authorise the Minister to establish a body corporate.

(4)An advisory body is to consist of such people as the Minister thinks fit.

(5)An advisory body is to be established by an instrument signed by the Minister that —

(a)identifies the members of the body and the length and conditions of each of their appointments; and

(b)sets out the duties and responsibilities of the body; and

(c)sets out any other matters in relation to the operation of the body that the Minister considers appropriate.

(6)The Minister may, by instrument signed by the Minister, amend or cancel an instrument made under subsection (5).

(7)The Minister must cause an instrument made under this section to be published in the Gazette.

(8)Members of an advisory body are entitled to any remuneration and allowances that the Minister may from time to time determine on the recommendation of the Public Sector Commissioner.

[Section 27 amended by No. 39 of 2010 s. 89.]

Part 4Protection and care of children

Division 1Introductory matters

28.When child is in need of protection

(1)In this section —

harm, in relation to a child, means any detrimental effect of a significant nature on the child’s wellbeing;

neglect includes failure by a child’s parents to provide, arrange, or allow the provision of —

(a)adequate care for the child; or

(b)effective medical, therapeutic or remedial treatment for the child.

(2)For the purposes of this Part a child is in need of protection if —

(a)the child has been abandoned by his or her parents and, after reasonable inquiries —

(i)the parents cannot be found; and

(ii)no suitable adult relative or other suitable adult can be found who is willing and able to care for the child;

or

(b)the child’s parents are dead or incapacitated and, after reasonable inquiries, no suitable adult relative or other suitable adult can be found who is willing and able to care for the child; or

(c)the child has suffered, or is likely to suffer, harm as a result of any one or more of the following —

(i)physical abuse;

(ii)sexual abuse;

(iii)emotional abuse;

(iv)psychological abuse;

(v)neglect,

and the child’s parents have not protected, or are unlikely or unable to protect, the child from harm, or further harm, of that kind; or

(d)the child has suffered, or is likely to suffer, harm as a result of —

(i)the child’s parents being unable to provide, or arrange the provision of, adequate care for the child; or

(ii)the child’s parents being unable to provide, or arrange the provision of, effective medical, therapeutic or other remedial treatment for the child.

29.Provisional protection and care, meaning and effect of

(1)A reference in this Part to a child being in, taken into, or placed in, provisional protection and care is a reference to the child being in, taken into, or placed in, the care of the CEO.

(2)If a child is in provisional protection and care, the CEO, subject to any interim order in respect of the child, has responsibility for the day‑to‑day care, welfare and development of the child to the exclusion of any other person.

(3A)Without limiting subsection (2), the responsibility conferred by that subsection includes responsibility for making decisions about any medical or dental examination, treatment or procedure in respect of the child.

(3)A child ceases to be in provisional protection and care if —

(a)the child is returned to or placed in the care of a person under section 38(2) or (3)(b); or

(b)the Court makes an interim order under section 133(2)(a) that the child be returned to or placed with a parent of the child; or

(c)the Court makes an interim order under section 133(2)(c); or

(d)the Court makes a protection order in respect of the child or refuses to make such an order.

[Section 29 amended by No. 49 of 2010 s. 54.]

30.When child is in the CEO’s care

For the purposes of this Part a child is in the CEO’s care if the child —

(a)is in provisional protection and care; or

(b)is the subject of a protection order (time‑limited) or protection order (until 18); or

(c)is the subject of a negotiated placement agreement; or

(d)is provided with placement services under section 32(1)(a).

Division 2 — Measures to safeguard or promote child’s wellbeing

[Heading amended by No. 49 of 2010 s. 55.]

Subdivision 1 — General powers and duties of CEO

[Heading amended by No. 49 of 2010 s. 56.]

31.CEO may cause inquiries to be made about child

If the CEO receives information that raises concerns about a child’s wellbeing, the CEO may cause any inquiries to be made that the CEO considers reasonably necessary for the purpose of determining whether action should be taken to safeguard or promote the child’s wellbeing.

32.CEO ’s duties if action needed to safeguard etc. child’s wellbeing

(1)If the CEO determines that action should be taken to safeguard or promote a child’s wellbeing, the CEO must do one or more of the following —

(a)provide, or arrange for the provision of, social services to the child and, if appropriate, a parent or other relative of the child;

(b)arrange or facilitate a meeting between an officer and any one or more of the following people —

(i)a parent or other relative of the child;

(ii)a person who is significant in the child’s life;

(iii)a representative of a service provider;

(iv)a representative of a public authority,

for the purpose of developing a plan to address the ongoing needs of the child in a way that ensures the best outcome for the child;

(c)enter into a negotiated placement agreement in respect of the child;

(d)cause an investigation to be conducted by an authorised officer for the purpose of ascertaining whether the child may be in need of protection;

(e)take, or cause to be taken, intervention action in respect of the child;

(f)take, or cause to be taken, any other action in respect of the child that the CEO considers reasonably necessary.

(2)In subsection (1)(e) —

intervention action means action that involves —

(a)making an application for a warrant (provisional protection and care) under section 35; or

(b)taking the child into provisional protection and care under section 37; or

(c)making a protection application.

[Section 32 amended by No. 49 of 2010 s. 57.]

33A.CEO may cause inquiries to be made before child is born

If, before a child is born, the CEO receives information that raises concerns about the child’s wellbeing after the child is born, the CEO may cause any inquiries to be made that the CEO considers reasonably necessary for the purpose of determining whether action should be taken to safeguard or promote the child’s wellbeing after the child is born.

[Section 33A inserted by No. 49 of 2010 s. 58.]

33B.CEO’s duties if action needed before child born to safeguard etc. child after birth

If the CEO determines that action should be taken before a child is born to safeguard or promote the child’s wellbeing after the child is born, the CEO must do one or more of the following —

(a)provide, or arrange for the provision of, social services to the pregnant woman;

(b)arrange or facilitate a meeting between an officer and any one or more of the following people —

(i)the pregnant woman;

(ii)a representative of a service provider;

(iii)a representative of a public authority;

(iv)any other person the CEO considers appropriate,

for the purpose of developing a plan to address the needs of the child after the child is born in a way that ensures the best outcome for the child;

(c)cause an investigation to be conducted by an authorised officer for the purpose of assessing the likelihood that the child will be in need of protection after the child is born.

[Section 33B inserted by No. 49 of 2010 s. 58.]

Subdivision 2 — Powers relating to investigation

33.Access to child for purposes of investigation

(1)If, in the course of an investigation referred to in section 32(1)(d), an authorised officer believes on reasonable grounds that —

(a)it is in the best interests of the child for the officer to have access to the child before the child’s parents become aware of the investigation; or

(b)if the child’s parents were to know in advance about the proposed access, the proper and effective conduct of the investigation would be likely to be jeopardised,

the authorised officer, without informing the child’s parents, may have access to the child at a school, hospital or place where a child care service is provided, and remain at the school, hospital or place, for as long as the officer reasonably considers necessary for the purposes of the investigation.

(2)Before exercising the power in subsection (1), the authorised officer must notify the person in charge of the school, hospital or place of his or her intention to exercise the power.

(3)As soon as practicable after the authorised officer has had access to the child, the officer must inform at least one of the child’s parents that the officer has had such access and the reasons for it.

(4)An authorised officer does not have to comply with subsection (3) if —

(a)the officer believes on reasonable grounds that a person may be charged with an offence involving harm to the child and the officer’s compliance with the subsection may jeopardise an investigation of the offence; or

(b)the officer believes on reasonable grounds that compliance with the subsection may expose the child to harm or a risk of harm; or

(c)the child has requested that the child’s parents not be informed and the officer believes on reasonable grounds that it is in the best interests of the child to comply with the request.

34.Warrant (access) , application for and issue of

(1)An authorised officer may apply to a judge or magistrate for a warrant (access) if, in the course of an investigation referred to in section 32(1)(d), the officer —

(a)is denied access to a child; or

(b)believes that he or she will be denied such access; or

(c)is unable to obtain entry to a place where the officer suspects the child to be.

(2)An application under subsection (1) must be made in accordance with section 120.

(3)On an application under subsection (1) a judge or magistrate may issue a warrant (access) if the judge or magistrate is satisfied —

(a)as to a matter referred to in subsection (1)(a) or (c); or

(b)that there are reasonable grounds for the authorised officer to have the belief referred to in subsection (1)(b).

Note: Section 121 contains provisions about the effect of a warrant (access).

[Section 34 amended by No. 8 of 2009 s. 32(3).]

Subdivision 3 — Provisional protection and care

35.Warrant (provisional protection and care) , application for and issue of

(1)An authorised officer who believes that a child is in need of protection may apply to a judge or magistrate for a warrant (provisional protection and care) if the officer —

(a)is unable to find the child; or

(b)believes that leaving the child at the place where the child is living poses an unacceptable risk to the child’s wellbeing; or

(c)believes that if a parent of the child or other person becomes aware of a proposed protection application in respect of the child, the child will be moved from the place where the child is living and the officer will be unable to find the child.

(2)An application under subsection (1) must be made in accordance with section 120.

(3)On an application under subsection (1) a judge or magistrate may issue a warrant (provisional protection and care) if the judge or magistrate is satisfied —

(a)that there are reasonable grounds for the authorised officer to believe that the child is in need of protection; and

(b)that —

(i)the authorised officer has been unable to find the child; or

(ii)there are reasonable grounds for the authorised officer to have a belief referred to in subsection (1)(b) or (c).

Note:Section 123 contains provisions about the effect of a warrant (provisional protection and care).

[Section 35 amended by No. 8 of 2009 s. 32(3).]

36.CEO’s duty if child taken into provisional protection and care under warrant

(1)This section applies in relation to a child who is taken into provisional protection and care following the execution of a warrant (provisional protection and care) issued under section 35(3).

(2)The CEO must make a protection application in respect of the child —

(a)if the child is taken into provisional protection and care in a prescribed area of the State, as soon as practicable after the child is taken into provisional protection and care; or

(b)otherwise, as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care.

(3)The Court must endeavour to ensure that the first listing date for the protection application is not more than 3 working days after the application is made.

37.Taking child into provisional protection and care without warrant in certain circumstances

(1)In this section —

officer means an authorised officer or a police officer.

(2)An officer may, at any time, take a child into provisional protection and care if the officer suspects on reasonable grounds that there is an immediate and substantial risk to the child’s wellbeing.

(3)For the purposes of subsection (2) the officer may —

(a)enter, at any time, any place where the officer suspects the child to be; and

(b)search the place for the purpose of finding the child.

(4)As soon as practicable after a police officer takes a child into provisional protection and care under this section, the police officer must notify the CEO, in a manner approved by the CEO, of his or her action and the reasons for it.

(5)An officer does not need a warrant to exercise the powers in this section.

(6)When exercising a power in this section an officer may use reasonable force and assistance.

38.CEO’s duties etc. if child taken into provisional protection and care without warrant

(1)This section applies in relation to a child who is taken into provisional protection and care under section 37.

(2)If the child is not already the subject of protection proceedings when the child is taken into provisional protection and care and the CEO decides not to make a protection application or other application under this Part in respect of the child, then, unless subsection (4A) applies, the CEO must ensure that, as soon as practicable after the child is taken into provisional protection and care, the child is returned to or placed in the care of —

(a)a parent of the child; or

(b)a person who was providing day‑to‑day care for the child at the time the child was taken into provisional protection and care; or

(c)with the consent of a parent of the child, any other person.

(3)If the child is already the subject of protection proceedings when the child is taken into provisional protection and care, then, unless subsection (4A) applies, the CEO must —

(a)make an application for an interim order under section 133(2)(b) that the child is to remain in provisional protection and care; or

(b)ensure that the child is returned to or placed in the care of a person referred to in subsection (2)(a), (b) or (c),

as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care.

(4A)If the child is already in the CEO’s care when the child is taken into provisional protection and care, the CEO may make any arrangement for the care of the child that the CEO considers appropriate.

(4)If the CEO decides to make a protection application or other application under this Part in respect of the child, the CEO must make the application —

(a)if the child is taken into provisional protection and care in a prescribed area of the State, as soon as practicable after the child is taken into provisional protection and care; or

(b)otherwise, as soon as practicable, but in any event not more than 2 working days, after the child is taken into provisional protection and care.

(5)If a protection application is made in respect of the child, the Court must endeavour to ensure that the first listing date is not more than 3 working days after the application is made.

[Section 38 amended by No. 49 of 2010 s. 59.]

39.Provisional care plan s, preparation etc. of

(1)In this section —

provisional care plan means a written plan that —

(a)identifies the needs of the child while the child is in provisional protection and care; and

(b)outlines steps or measures to be taken in order to address those needs; and

(c)sets out decisions about the care of the child including —

(i)decisions about placement arrangements; and

(iia)decisions about secure care arrangements; and

(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child’s life.

(2)This section applies if —

(a)a child is taken into provisional protection and care under this Division; and

(b)the CEO decides, or is required, to make a protection application in respect of the child.

(3A)The CEO must prepare and implement a provisional care plan for the child.

(3B)Unless section 88I(2) applies, the CEO must prepare the provisional care plan within 7 working days after the child is taken into provisional protection and care.

(3)The CEO may modify a provisional care plan at any time if the CEO considers that it is appropriate to do so.

(4)As soon as practicable after the CEO prepares or modifies a provisional care plan, whether under this section or section 88I, the CEO must ensure that a copy of the care plan or modification, as the case requires, is given to —

(a)the child; and

(b)a parent of the child; and

(c)any carer of the child; and

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

[Section 39 amended by No. 49 of 2010 s. 6.]

Subdivision 4 — Other powers

40.Power to keep child under 6 years of age in hospital

(1)In this section —

officer in charge, in relation to a hospital, means the person for the time being in charge of the hospital.

(2)If —

(a)a child under 6 years of age is brought to a hospital for observation, assessment or treatment or is admitted to a hospital; and

(b)the officer in charge believes on reasonable grounds that the child is in need of protection,

the officer in charge may keep the child in the hospital for the purpose of observation, assessment or treatment or otherwise to safeguard or promote the wellbeing of the child.

(3)A child may be kept in a hospital under subsection (2) whether or not a parent of the child consents to that action.

(4)If a child is kept in a hospital under subsection (2), the officer in charge must notify the CEO of that action as soon as practicable.

(5)Notification under subsection (4) may be given orally or in writing, but if given orally must be confirmed in writing as soon as practicable after it is given.

(6)The officer in charge may give to the CEO any information relating to the child that the officer in charge reasonably believes is necessary to safeguard or promote the wellbeing of the child.

(7)A child must not be kept in a hospital under subsection (2) for more than 2 working days.

(8)A person must not take a child who is being kept in a hospital under subsection (2) from the hospital except with the consent of the CEO or the officer in charge.

Penalty: a fine of $12 000 and imprisonment for one year.

(9)The officer in charge must consult with the CEO before giving consent for the purposes of subsection (8).

(10)It is a defence in proceedings for an offence under subsection (8) to prove that the person charged did not know, and could not reasonably have known, that the child was being kept in the hospital under subsection (2).

[Section 40 amended by No. 49 of 2010 s. 85.]

41.Power to move child to safe place

(1)In this section —

officer means an authorised officer or a police officer;

responsible person, in relation to a child, means —

(a)a parent of the child; or

(b)an adult relative of the child; or

(c)an adult with whom the child usually lives.

(2)An officer may move a child to a safe place if the officer finds the child at a place other than the child’s usual place of residence and the officer believes on reasonable grounds —

(a)that the child is not under the immediate supervision of a parent of the child or an adult capable of adequately supervising the child; and

(b)that —

(i)there is a risk to the wellbeing of the child because of the nature of the place where the child is found, the behaviour or vulnerability of the child at that place, or any other circumstance; or

(ii)the child is an absentee student as defined in the School Education Act 1999 section 32.

(3)Subsection (2) does not authorise an officer to move a child to —

(a)a lock‑up (including a place that is prescribed as a lock‑up for the purposes of the Court Security and Custodial Services Act 1999); or

(b)a secure care facility.

(4)An officer does not need a warrant to exercise the power in subsection (2).

(5)When exercising the power in subsection (2) an officer may use reasonable force and assistance.

(6)If, in the exercise of the power in subsection (2), an officer moves a child to a place other than the child’s usual place of residence or school, the officer must immediately —

(a)cause reasonable steps to be taken to contact a responsible person and inform that person —

(i)that the child has been moved to a safe place; and

(ii)of the location of that place;

and

(b)if the officer is a police officer, cause the CEO to be informed of the matters mentioned in paragraph (a)(i) and (ii).

(7)If a responsible person is contacted under subsection (6), an officer must immediately cause arrangements to be made for the child to be placed in, or returned to, the care of that person.

(8)If a responsible person cannot be contacted under subsection (6), an officer must immediately cause arrangements to be made for the care of the child until the child is placed in, or returned to, the care of a responsible person or otherwise dealt with under this Part.

Note:Division 8 confers certain powers on authorised officers and police officers in relation to children moved to a safe place under this section.

[Section 41 amended by No. 49 of 2010 s. 7.]

Division 3Protection orders

Subdivision 1 — Introductory matters

42.Terms used

In this Division —

child means —

(a)in relation to a protection application or other application under this Division — the child to whom the application relates; or

(b)in relation to a protection order — the child to whom the order relates;

parent, in relation to a child who is the subject of a protection order other than a protection order (supervision), includes any person who would have had parental responsibility for the child if the order had not been made;

party to the initial proceedings, in relation to a protection order, means a person who was a party to the protection proceedings in which the order was made;

special guardian means the individual who is given, or the 2 individuals who are jointly given, parental responsibility for a child under a protection order (special guardianship).

[Section 42 amended by No. 49 of 2010 s. 25.]

43.Term used: protection order

A reference in this Part to a protection order is a reference to any of the following types of order —

(a)a protection order (supervision);

(b)a protection order (time‑limited);

(c)a protection order (until 18);

(d)a protection order (special guardianship).

[Section 43 amended by No. 49 of 2010 s. 35.]

Subdivision 2 — Applications for, and making of, protection orders

44.Application for protection order

(1)A protection application can be made only by the CEO.

(2)A protection application must —

(a)be lodged with the Court; and

(b)specify the type of protection order sought; and

(c)state the grounds under section 28(2) on which it is made; and

(d)otherwise comply with any applicable rules of court.

(3)If a protection order (special guardianship) is sought, the protection application must nominate the individual or individuals to whom parental responsibility for the child is proposed to be given under the order.

(4)When a protection application is lodged, the Court must fix the day, time and place for the Court to first deal with the application.

(5)As soon as practicable after lodging a protection application, the CEO must give a copy of it to —

(a)the child; and

(b)a parent of the child; and

(c)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

(6)Each copy of a protection application given under subsection (5) must be accompanied by notice of the first listing date.

[Section 44 amended by No. 49 of 2010 s. 26.]

45.Court may make protection order

If, on a protection application, the Court finds that the child is in need of protection the Court may, subject to this Part —

(a)make the protection order sought in respect of the child; or

(b)make another protection order in respect of the child.

46.No order principle

The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.

Subdivision 3 — Protection orders (supervision)

47.Protection order (supervision)

(1)A protection order (supervision) is an order providing for the supervision of the wellbeing of a child by the CEO for the period specified in the order.

(2)A protection order (supervision) does not affect the parental responsibility of any person for the child except to the extent (if any) necessary to give effect to the order.

48.Duration of protection order (supervision)

(1)A protection order (supervision) remains in force for the period specified in it unless it is extended under section 49 or revoked under Subdivision 7.

(2)The period specified in the order must not exceed 2 years and must end before the child reaches 18 years of age.

49.Extension of protection order (supervision)

(1)The CEO may apply to the Court for the extension of a protection order (supervision).

(2)If an application under subsection (1) is made but not determined before the end of the period referred to in section 48(1), the order remains in force until the application is determined.

(3)On an application under subsection (1) the Court may, if satisfied that it is in the best interests of the child to do so, extend the order for a period not exceeding 2 years that ends before the child reaches 18 years of age.

(4)A protection order (supervision) must not be extended more than once under this section.

(5)If, on an application under subsection (1), the Court is satisfied that each party to the initial proceedings consents to the application, the Court may extend the order in the absence of the parties.

(6)The reference in subsection (5) to each party to the initial proceedings does not include the child unless —

(a)the child has legal representation; or

(b)the Court is satisfied that the child has sufficient maturity and understanding to give consent.

50.Conditions of protection order (supervision)

(1)It is a condition of every protection order (supervision) that a parent of the child keeps the CEO informed about where the child is living.

(2)A protection order (supervision) may include conditions to be complied with by —

(a)the child if, in the opinion of the Court, the child is able to understand the condition; or

(b)a parent of the child; or

(c)an adult with whom the child is living.

(3)A protection order (supervision) must not include a condition about —

(a)the person or persons with whom the child is to live, unless the condition relates to the child living with a parent of the child specified in the order; or

(b)who is to have responsibility for the day‑to‑day care, welfare and development of the child.

51.Variation of conditions of protection order (supervision)

(1)In this section —

condition means a condition of a protection order (supervision) other than the condition referred to in section 50(1).

(2)A party to the initial proceedings may apply to the Court for the variation, addition or substitution of a condition.

(3)On an application under subsection (2) the Court may —

(a)vary a condition in any manner that the Court considers appropriate; or

(b)add or substitute a condition.

(4)The Court must not grant an application under subsection (2) unless it is satisfied that —

(a)new facts or circumstances have arisen since the condition was imposed or last varied, as the case may be; or

(b)each party to the initial proceedings consents to the application.

(5)The reference in subsection (4)(b) to each party to the initial proceedings does not include the child unless —

(a)the child has legal representation; or

(b)the Court is satisfied that the child has sufficient maturity and understanding to give consent.

52.Access to child by authorised officer while protection order (supervision) in force

(1)While a protection order (supervision) is in force in respect of a child, an authorised officer may have access to the child at any reasonable time.

(2)An authorised officer may apply to a judge or magistrate for a warrant (access) if the officer —

(a)is denied access to the child; or

(b)is unable to find the child for the purposes of access.

(3)An application under subsection (2) must be made in accordance with section 120.

(4)On an application under subsection (2) a judge or magistrate may issue a warrant (access) if the judge or magistrate is satisfied as to a matter referred to in subsection (2)(a) or (b).

Note: Section 121 contains provisions about the effect of a warrant (access).

[Section 52 amended by No. 8 of 2009 s. 32(3).]

53.Provision of social services

While a protection order (supervision) is in force in respect of a child the CEO must ensure that the child and the child’s parents are provided with any social services that the CEO considers appropriate.

Subdivision 4 — Protection orders (time‑limited)

54.Protection order (time‑limited)

(1)A protection order (time‑limited) is an order giving the CEO parental responsibility for a child for the period specified in the order.

(2)While a protection order (time‑limited) is in force in respect of a child the CEO has parental responsibility for the child to the exclusion of any other person.

55.Duration of protection order (time‑limited)

(1)A protection order (time‑limited) remains in force for the period specified in the order unless it is extended or revoked under section 56 or revoked under Subdivision 7.

(2)The period specified in the order must not exceed 2 years and must end before the child reaches 18 years of age.

56.Extension of protection order (time‑limited)

(1)The CEO may apply to the Court for the extension of a protection order (time‑limited).

(2)An application under subsection (1) may be made at any time while the order is in force but only after a review of the care plan for the child has been carried out under section 90.

(3)If an application under subsection (1) is made but not determined before the day on which the order would otherwise expire, the order remains in force until the application is determined.

(4)On an application under subsection (1) the Court may, if satisfied that it is in the best interests of the child to do so —

(a)extend the order for a period not exceeding 2 years that ends before the child reaches 18 years of age; or

(b)revoke the order and, subject to this Part, make another protection order in respect of the child.

(5)A protection order (time‑limited) may be extended more than once under this section.

(6)If, on an application under subsection (1), the Court is satisfied that each party to the initial proceedings consents to the application, the Court may extend the order in the absence of the parties.

(7)The reference in subsection (6) to each party to the initial proceedings does not include the child unless —

(a)the child has legal representation; or

(b)the Court is satisfied that the child has sufficient maturity and understanding to give consent.

Subdivision 5 — Protection orders (until 18)

57.Protection order (until 18)

(1)A protection order (until 18) is an order giving the CEO parental responsibility for a child until the child reaches 18 years of age.

(2)While a protection order (until 18) is in force in respect of a child the CEO has parental responsibility for the child to the exclusion of any other person.

58.Restriction on making protection order (until 18)

The Court must not make a protection order (until 18) in respect of a child unless the Court is satisfied that long‑term arrangements should be made for the wellbeing of the child.

59.Duration of protection order (until 18)

A protection order (until 18) remains in force until the child reaches 18 years of age unless it is revoked under Subdivision 7.

Subdivision 6 — Protection orders (special guardianship)

[Heading amended by No. 49 of 2010 s. 35.]

60. Protection order (special guardianship)

(1)A protection order (special guardianship) is an order giving an individual, or 2 individuals jointly, parental responsibility for a child until the child reaches 18 years of age.

(2)A protection order (special guardianship) cannot give parental responsibility for a child to the CEO or a parent of the child.

(3)While a protection order (special guardianship) is in force in respect of a child the special guardian has parental responsibility for the child to the exclusion of any other person.

[Section 60 amended by No. 49 of 2010 s. 27.]

61. Restriction on making protection order (special guardianship)

(1)In this section —

proposed special guardian means the individual or each individual to whom parental responsibility for the child is proposed to be given under the protection order (special guardianship).

(2)The Court must not make a protection order (special guardianship) in respect of a child unless the Court is satisfied —

(a)that long‑term arrangements should be made for the wellbeing of the child; and

(b)that, having regard to the report mentioned in subsection (3), the proposed special guardian is —

(i)a suitable person to provide long‑term care for the child; and

(ii)willing and able to provide such care.

(3)The CEO must provide the Court with a written report that —

(a)contains information addressing the matters referred to in subsection (2)(b)(i) and (ii); and

(b)outlines the proposed arrangements for the wellbeing of the child.

(4)If the child is an Aboriginal child or a Torres Strait Islander child, the Court must, in assessing the suitability of the proposed special guardian for the purposes of subsection (2)(b), have regard to the Aboriginal and Torres Strait Islander child placement principle set out in section 12.

(5)If the child is from a culturally or linguistically diverse background, the Court must, in assessing the suitability of the proposed special guardian for the purposes of subsection (2)(b), have regard to any guidelines established under section 80.

[Section 61 amended by No. 49 of 2010 s. 28.]

62. Duration of protection order (special guardianship)

A protection order (special guardianship) remains in force until the child reaches 18 years of age unless it is revoked under Subdivision 7.

[Section 62 amended by No. 49 of 2010 s. 35.]

63. Conditions of protection order (special guardianship)

(1)A protection order (special guardianship) may include conditions about contact between the child and another person.

(2)A protection order (special guardianship) must not include any other conditions.

[Section 63 amended by No. 49 of 2010 s. 35.]

64. Variation of conditions

(1)In this section —

condition means a condition of a protection order (special guardianship).

(2)A party to the initial proceedings may apply to the Court for the variation, addition or substitution of a condition.

(3)On an application under subsection (2) the Court may —

(a)vary a condition in any manner that the Court considers appropriate; or

(b)add or substitute a condition.

(4)The Court must not grant an application under subsection (2) unless it is satisfied that —

(a)new facts or circumstances have arisen since the condition was imposed or last varied, as the case may be; or

(b)each party to the initial proceedings consents to the application.

(5)The reference in subsection (4)(b) to each party to the initial proceedings does not include the child unless —

(a)the child has legal representation; or

(b)the Court is satisfied that the child has sufficient maturity and understanding to give consent.

[Section 64 amended by No. 49 of 2010 s. 29.]

65. Court may order payments to special guardian

(1)On the making of a protection order (special guardianship), or at any time while such an order is in force, the Court may, on the application of a party to the initial proceedings, order the CEO to pay to the special guardian amounts in accordance with the prescribed scale at such intervals as are prescribed.

(2)The CEO must give effect to an order made under subsection (1).

(3)The Court may, on the application of a party to the initial proceedings, revoke an order made under subsection (1).

(4)For the purposes of this section, the regulations —

(a)are to prescribe the scale of amounts payable; and

(b)may prescribe different amounts for different classes of children; and

(c)are to prescribe the intervals at which payments are to be made.

[Section 65 amended by No. 49 of 2010 s. 30.]

66.Provision of social services

Without limiting section 21(1)(a), while a protection order (special guardianship) is in force in respect of a child the CEO may cause the child and the special guardian to be provided with any social services that the CEO considers appropriate.

[Section 66 amended by No. 49 of 2010 s. 31.]

Subdivision 7 — Revocation and replacement of protection orders

67.Revocation of protection order

(1)A party to the initial proceedings may apply to the Court for the revocation of a protection order.

(2)On an application under subsection (1) the Court may, if satisfied that it is in the best interests of the child to do so —

(a)confirm the order; or

(b)revoke the order; or

(c)revoke the order and, subject to this Part, make another protection order in respect of the child.

68. Replacement of protection order: application by CEO

(1)The CEO may apply to the Court for the revocation of a protection order and the making of another protection order in respect of a child.

(2)An application under subsection (1) must specify the type of protection order sought.

(3)If a protection order (special guardianship) is sought, the application must nominate the individual or individuals to whom parental responsibility for the child is proposed to be given under the order.

(4)If an application under subsection (1) for the revocation of a protection order (supervision) or a protection order (time‑limited) is made but not determined before the day on which the order would otherwise expire, the order remains in force until the application is determined.

(5)On an application under subsection (1) the Court may, if satisfied that it is in the best interests of the child to do so, revoke the order and, subject to this Part, make the protection order sought or another protection order in respect of the child.

[Section 68 amended by No. 49 of 2010 s. 32 and 60.]

69A.Replacement of protection order (time‑limited) or protection order (until 18): application by carer

(1)An individual is eligible to make an application under subsection (2) in respect of a child if —

(a)the individual has been the carer of the child; and

(b)the child has been the subject of one or more of the following types of protection order —

(i)a protection order (time-limited);

(ii)a protection order (until 18),

for at least the period of 2 years immediately preceding the day on which the application is made.

(2)An individual who is the carer of a child may, if eligible to do so under subsection (1), apply to the Court for the revocation of a protection order (time‑limited) or protection order (until 18) and the making of a protection order (special guardianship) in respect of the child.

(3)An application under subsection (2) must nominate the individual or individuals to whom parental responsibility for the child is proposed to be given under the protection order (special guardianship).

(4)The applicant must be the individual or one of the individuals nominated in the application.

(5)If an application under subsection (2) for the revocation of a protection order (time‑limited) is made but not determined before the day on which the order would otherwise expire, the order remains in force until the application is determined.

(6)On an application under subsection (2) the Court may, if satisfied that it is in the best interests of the child to do so, revoke the order and, subject to this Part, make a protection order (special guardianship) or another protection order in respect of the child.

[Section 69A inserted by No. 49 of 2010 s. 33.]

Subdivision 8 — General

69.Applications for extension, variation, revocation or replacement of protection orders

(1)This section applies to an application under this Division for the extension, variation, revocation or replacement of a protection order.

(2)The application must —

(a)be lodged with the Court; and

(b)comply with any applicable rules of court.

(3)When the application is lodged, the Court must fix the day, time and place for the hearing of the application.

(4)The applicant must, as soon as practicable after lodging the application, give a copy of it to all other parties to the initial proceedings.

(5)Each copy of the application given under subsection (4) must be accompanied by notice of the day, time and place fixed under subsection (3).

70.Form of protection order

(1)A protection order must be in writing and must state the child’s name and date of birth.

(2)A protection order, if made on a protection application, must state the basis under section 28 for finding that the child is in need of protection.

71.Child’s date of birth

(1)In the absence of evidence of the child’s date of birth, the Court must determine a date of birth for the child for the purposes of section 70(1).

(2)The date of birth of a child stated in a protection order is to be taken to be the child’s date of birth for the purposes of this Act unless the Court otherwise determines.

72.Parties to proceedings to be given copy of protection order

If the Court makes a protection order it must take all reasonable steps to ensure that each party is given a copy of the order.

73.Maintenance of children under certain orders

(1)In this section —

relevant person means —

(a)if the order concerned is a protection order (time‑limited) or a protection order (until 18), the CEO; or

(b)if the order concerned is a protection order (special guardianship), the special guardian.

(2)On the making of a protection order (time‑limited), protection order (until 18) or protection order (special guardianship) in respect of a child, or at any time while such an order is in force, the Court may, on the application of a party to the initial proceedings, order a parent of the child who is able to pay for, or contribute towards, the maintenance of the child to pay to the relevant person —

(a)any amount for the past maintenance of the child by the relevant person; and

(b)any amount, or such periodical amounts, for the future maintenance of the child by the relevant person,

that the Court considers appropriate.

(3)The Court may make an order under subsection (2) in the absence of the parent concerned if it is satisfied that the parent has received adequate notice of the application.

(4)If an order is made under subsection (2), the Court must cause a certified copy of the order to be sent to —

(a)the Family Court; or

(b)a court of a kind referred to in the Family Court Act 1997 section 39(a) that can, under that section, exercise the Family Court’s non‑federal jurisdictions,

whichever is nearest to the place at which the order was made, for registration in accordance with the Family Court Act 1997 and the order, when so registered, is to be taken for all purposes to be an order made under that Act by the Family Court or the court referred to in paragraph (b), as the case requires.

[Section 73 amended by No. 49 of 2010 s. 34.]

Division 4 — Negotiated placement

74.Term used: child

In this Division —

child, in relation to a negotiated placement agreement, means the child in respect of whom the agreement is made.

75.Negotiated placement agreement

(1)Where the parents of a child are unable to care for the child, the parents acting together and the CEO may enter into an agreement under which the CEO is required to make a placement arrangement for the child.

(2)The parents of the child acting together and the CEO may, at any time before the expiry or termination of a negotiated placement agreement, extend the agreement.

(3)Despite the requirement in subsections (1) and (2) for the parents of the child to act together, a negotiated placement agreement may be entered into or extended by a parent of the child if —

(a)after reasonable inquiries any other parent of the child cannot be found; or

(b)any other parent of the child has failed to respond within a reasonable time to a request that he or she enter into or extend a negotiated placement agreement; or

(c)any other parent of the child does not have ongoing contact with the child; or

(d)it is not, in all the circumstances of the case, reasonably practicable to request any other parent of the child to enter into or extend a negotiated placement agreement.

(4)In deciding whether to enter into, extend or terminate a negotiated placement agreement, the CEO must take into account any views expressed by the child.

(5)The CEO must not enter into or extend a negotiated placement agreement in respect of a child if there are reasonable grounds to believe that the child is in need of protection.

(6)A negotiated placement agreement and any extension of the agreement must be —

(a)in writing; and

(b)signed by —

(i)the CEO; and

(ii)the parents of the child or, if subsection (3) applies, the parent who is entering into or extending the agreement.

76.Duration of negotiated placement agreement

A negotiated placement agreement has effect for the period specified in the agreement or any extension of the agreement unless it is terminated under section 77.

77.Termination of negotiated placement agreement

A negotiated placement agreement may be terminated at any time by —

(a)the CEO; or

(b)a parent of the child (whether or not the parent is a party to the agreement),

by written notice given to the parties, or other parties, to the agreement.

Division 5 — Children in the CEO’s care

Subdivision 1 — Charter of Rights

78.Preparation etc. of Charter of Rights

(1)Within 12 months after the commencement of this Part, the CEO must prepare a Charter of Rights for all children in the CEO’s care.

(2)The CEO must promote compliance with the Charter of Rights.

(3)The CEO must ensure that all children in the CEO’s care are given a copy of the Charter of Rights and written information about it.

(4)The CEO must cause the Charter of Rights to be published in a manner that the CEO considers appropriate.

(5)The Charter of Rights must be laid before each House of Parliament by the Minister within 6 sitting days after the Charter is published by the CEO.

Subdivision 2 — Placement arrangements

79.CEO may arrange placement of child

(1)In this section —

child means a child who is in the CEO’s care.

(2)The CEO may make —

(a)an arrangement for the placement of a child —

(i)with an individual approved by the CEO in accordance with the regulations; or

(ii)with a person who has entered into an agreement under section 15(1) for the provision of placement services; or

(iii)in a residential facility operated or managed by the Department or another public authority;

or

(b)any other arrangement for the placement of the child that the CEO considers appropriate.

(3A)Subsection (2) does not authorise the CEO to make an arrangement for the placement of a child in a secure care facility.

(3)The CEO may at any time cancel a placement arrangement made in respect of a child and make another placement arrangement in respect of the child.

(4)Without limiting section 248(1), the regulations may make provision for and in relation to the approval of individuals for the purposes of subsection (2)(a)(i).

[Section 79 amended by No. 49 of 2010 s. 8 and 61.]

80.Guidelines for placement of certain children

(1)Within 12 months after the commencement of this Part, the CEO must establish written guidelines (the guidelines) to be observed when making placement arrangements for children from culturally or linguistically diverse backgrounds.

(2)Without limiting the scope of the guidelines, they are to address the need to preserve and enhance a child’s cultural, ethnic and religious identity.

(3)The CEO may amend or replace the guidelines.

(4)The guidelines are not to apply to Aboriginal or Torres Strait Islander children.

Note:Section 12 sets out the relevant principle relating to the placement of Aboriginal or Torres Strait Islander children.

81.Consultation before placement of Aboriginal or Torres Strait Islander child

Before making a placement arrangement in respect of an Aboriginal child or a Torres Strait Islander child the CEO must consult with at least one of the following —

(a)an officer who is an Aboriginal person or a Torres Strait Islander;

(b)an Aboriginal person or a Torres Strait Islander who, in the opinion of the CEO, has relevant knowledge of the child, the child’s family or the child’s community;

(c)an Aboriginal or Torres Strait Islander agency that, in the opinion of the CEO, has relevant knowledge of the child, the child’s family or the child’s community.

[Section 81 inserted by No. 49 of 2010 s. 62.]

82.Payment for care under placement arrangement

The CEO may make payments to a person for or in relation to the provision of care for a child under a placement arrangement.

83.Inspection of place where child living

An authorised officer may, at any time, enter a place where a child is living under a placement arrangement for the purpose of inspecting the place and making any inquiries in relation to the wellbeing of the child that the authorised officer considers appropriate.

84.Authorised officer may require person to hand over child

(1)In this section —

child means a child who is the subject of a placement arrangement.

(2)An authorised officer may at any time require a carer of a child, a parent of a child or any other person who has the care or control of a child to hand the child over to the authorised officer.

(3)A person who is required to hand over a child under subsection (2) must comply with the requirement.

Penalty: a fine of $12 000 and imprisonment for one year.

[Section 84 inserted by No. 49 of 2010 s. 63.]

85.Warrant (apprehension) where child not handed over

(1)If a person does not comply with a requirement of an authorised officer under section 84 the officer may apply to a judge or magistrate for a warrant (apprehension).

(2)An application under subsection (1) must be made in accordance with section 120.

(3)On an application made under subsection (1) a judge or magistrate may issue a warrant (apprehension) if the magistrate is satisfied that the person has not complied with the requirement.

Note:Section 122 contains provisions about the effect of a warrant (apprehension).

[Section 85 amended by No. 8 of 2009 s. 32(3); No. 49 of 2010 s. 64.]

86.Warrant (apprehension) where child absent or taken without authority

(1)If an authorised officer or a police officer believes on reasonable grounds that a child is absent, or has been taken, without lawful authority from a place where the child was living under a placement arrangement the officer may apply to a judge or magistrate for a warrant (apprehension).

(2)An application under subsection (1) must be made in accordance with section 120.

(3)On an application made under subsection (1) a judge or magistrate may issue a warrant (apprehension) if the judge or magistrate is satisfied that there are reasonable grounds for the belief mentioned in that subsection.

Note:Section 122 contains provisions about the effect of a warrant (apprehension).

[Section 86 amended by No. 8 of 2009 s. 32(3); No. 49 of 2010 s. 65.]

87.Apprehension without warrant in certain circumstances

(1)In this section —

officer means an authorised officer or a police officer.

(2)If an officer suspects on reasonable grounds that —

(a)a child is absent, or has been taken, without lawful authority from a place where the child was living under a placement arrangement; and

(b)there is —

(i)an immediate or substantial risk to the wellbeing of the child; or

(ii)a significant likelihood that unless the child is apprehended immediately the officer will not be able to find the child,

the officer may apprehend the child and take the child to the place mentioned in paragraph (a) or such other place as the CEO directs.

(3)For the purposes of subsection (2) an officer may —

(a)enter, at any time, any place where the officer reasonably believes the child to be; and

(b)search the place for the purpose of finding the child.

(4)An officer does not need a warrant to exercise the powers in this section.

(5)When exercising a power under this section an officer may use reasonable force and assistance.

(6)Without limiting subsection (5), when exercising a power under this section an authorised officer may be accompanied by a police officer.

Subdivision 3A — Secure care arrangements

[Heading inserted by No. 49 of 2010 s. 9.]

88A.Terms used

In this Subdivision —

protected child means a child who is the subject of a protection order (time‑limited) or protection order (until 18);

provisionally protected child means a child who is in provisional protection and care.

[Section 88A inserted by No. 49 of 2010 s. 9.]

88B.Secure care facilities

(1)The Minister may, by order published in the Gazette, declare a place to be a secure care facility.

(2)The Minister may, by order published in the Gazette, amend or cancel an order under subsection (1).

(3)An order under this section comes into operation on —

(a)the day on which it is published in the Gazette (publication day); or

(b)if it specifies a day that is later than publication day — the later day.

[Section 88B inserted by No. 49 of 2010 s. 9.]

88C.Secure care arrangements for certain children

(1)The CEO may from time to time make an arrangement for the placement of a provisionally protected child or a protected child in a secure care facility (a secure care arrangement).

(2)The CEO must not make a secure care arrangement unless the CEO is satisfied that —

(a)there is an immediate and substantial risk of the child causing significant harm to the child or another person; and

(b)there is no other suitable way to manage that risk and to ensure that the child receives the care the child needs.

(3)Subsection (2) does not apply in relation to a secure care arrangement if the CEO is required to make the arrangement under an interim order (secure care).

(4)The CEO may at any time cancel a secure care arrangement unless it is a secure care arrangement made or continued under an interim order (secure care).

(5)As soon as practicable after making a decision under subsection (1) or (4), the CEO must give written notice of the decision to the following people —

(a)the child to whom the decision relates;

(b)each parent of the child;

(c)any carer of the child;

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

[Section 88C inserted by No. 49 of 2010 s. 9.]

88D.Period in secure care facility

(1)The period for which a provisionally protected child is kept in a secure care facility under a secure care arrangement must not exceed —

(a)if the child is the subject of an interim order (secure care) — the secure care period under that order; or

(b)otherwise — 21 days.

(2)The period for which a protected child is kept in a secure care facility under a secure care arrangement must not exceed the secure care period under section 88F.

[Section 88D inserted by No. 49 of 2010 s. 9.]

88E.Continuation order required for certain provisionally protected children

(1)In this section —

continuation order means an order under section 133(2)(ca)(ii).

(2)This section applies in relation to a provisionally protected child who —

(a)is placed in a secure care facility under a secure care arrangement; and

(b)is not, at the time of that placement, the subject of an interim order (secure care).

(3)If the child is not already the subject of protection proceedings but the CEO decides, or is required, under Division 2 Subdivision 3 to make a protection application in respect of the child, the CEO must make an application for a continuation order in respect of the secure care arrangement when the CEO makes the protection application, unless before then the arrangement is cancelled.

(4)If the child is already the subject of protection proceedings, the CEO must make an application for a continuation order in respect of the secure care arrangement as soon as practicable, but in any event not more than 2 working days, after the child is placed in the secure care facility, unless before then the arrangement is cancelled.

(5)If, on an application under subsection (3) or (4), the Court refuses to make a continuation order in respect of the secure care arrangement, the CEO must, as soon as practicable after the refusal, cancel the arrangement and ensure that the child is removed from the secure care facility.

[Section 88E inserted by No. 49 of 2010 s. 9.]

88F.CEO to decide secure care period for protected child

(1)As soon as practicable after making a secure care arrangement in respect of a protected child, the CEO must decide the period (the secure care period) for which the child is to be kept in a secure care facility under the arrangement.

(2)The secure care period must not exceed 21 days unless it is extended under subsection (3).

(3)The CEO may extend the secure care period by not more than 21 days if the CEO is satisfied that there are exceptional reasons for doing so.

(4)The secure care period cannot be extended under subsection (3) more than once.

(5)As soon as practicable after making a decision under subsection (1) or (3), the CEO must give written notice of the decision to the following people —

(a)the child to whom the decision relates;

(b)each parent of the child;

(c)any carer of the child;

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

[Section 88F inserted by No. 49 of 2010 s. 9.]

88G.Reconsideration of certain decisions as to protected child

(1)In this section —

secure care decision means —

(a)a decision under section 88C(1) to make a secure care arrangement for a protected child; or

(b)a decision under section 88F(1) as to the secure care period for a protected child; or

(c)a decision under section 88F(3) to extend the secure care period for a protected child.

(2)An application for the reconsideration of a secure care decision may be made to the CEO by —

(a)the child to whom the decision relates; or

(b)a parent of the child; or

(c)any carer of the child; or

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

(3)The application —

(a)must be in writing; and

(b)must set out the grounds on which reconsideration of the secure care decision is sought.

(4)As soon as practicable after receiving the application, the CEO must reconsider the secure care decision and —

(a)confirm, vary or reverse it; or

(b)substitute another decision for it.

(5)The CEO must give the applicant written notice of his or her decision under subsection (4) and written reasons for it.

[Section 88G inserted by No. 49 of 2010 s. 9.]

88H.Review of CEO’s decision

A person who is aggrieved by a decision made by the CEO under section 88G(4) may apply to the State Administrative Tribunal for a review of the decision.

[Section 88H inserted by No. 49 of 2010 s. 9.]

88I.Requirements for care plan or provisional care plan

(1)In this section —

care plan has the meaning given in section 89(1);

provisional care plan has the meaning given in section 39(1).

(2)If —

(a)a provisionally protected child is placed in a secure care facility under a secure care arrangement; and

(b)at the time of the placement a provisional care plan for the child has not been prepared,

the CEO must prepare the provisional care plan as soon as practicable, but in any event not more than 2 working days, after the placement and must ensure that it meets the requirements set out in subsection (5).

(3)If —

(a)a provisionally protected child is placed in a secure care facility under a secure care arrangement; and

(b)at the time of the placement a provisional care plan for the child has been prepared,

the CEO must modify the provisional care plan as soon as practicable, but in any event not more than 2 working days, after the placement so that it meets the requirements set out in subsection (5).

(4)If a protected child is placed in a secure care facility under a secure care arrangement, the CEO must modify the care plan for the child as soon as practicable, but in any event not more than 2 working days, after the placement so that it meets the requirements set out in subsection (5).

(5)The requirements for a care plan or provisional care plan are that it —

(a)identifies the needs of the child in his or her transition to other living arrangements after leaving the secure care facility; and

(b)outlines steps or measures designed to address those needs and to reduce the likelihood of the child being placed in a secure care facility again.

[Section 88I inserted by No. 49 of 2010 s. 9.]

88J.Apprehension without warrant of child absent from secure care facility

(1)In this section —

officer means an authorised officer or a police officer.

(2)If an officer suspects on reasonable grounds that a child is absent, or has been taken, without lawful authority from a secure care facility, the officer may apprehend the child and take the child to the secure care facility or such other place as the CEO directs.

(3)For the purposes of subsection (2) an officer may —

(a)enter, at any time, any place where the officer reasonably believes the child to be; and

(b)search the place for the purpose of finding the child.

(4)An officer does not need a warrant to exercise the powers in this section.

(5)When exercising a power under this section an officer may use reasonable force and assistance.

(6)Without limiting subsection (5), when exercising a power under this section an authorised officer may be accompanied by a police officer.

[Section 88J inserted by No. 49 of 2010 s. 9.]

Subdivision 3 — Care plans

88.Term used: parent

In this Subdivision —

parent has the meaning given to that term in section 42.

89.Care plan s, preparation etc. of

(1)In this section —

care plan means a written plan that —

(a)identifies the needs of the child; and

(b)outlines steps or measures to be taken in order to address those needs; and

(c)sets out decisions about the care of the child including —

(i)decisions about placement arrangements; and

(iia)secure care decisions referred to in section 88G; and

(ii)decisions about contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child’s life.

(2)As soon as practicable after a child first comes into the CEO’s care, the CEO must prepare and implement a care plan for the child.

(3)Subsection (2) does not apply in the case of a child taken into provisional protection and care.

Note:Section 39 requires the CEO to prepare and implement a provisional care plan for a child taken into provisional protection and care.

(4)The CEO may modify a care plan at any time if the CEO considers that it is appropriate to do so.

(5)Without limiting subsection (4), the CEO must, in the case of a child who is about to leave the CEO’s care, modify the care plan for the child so that it —

(a)identifies the needs of the child in preparing to leave the CEO’s care and in his or her transition to other living arrangements after leaving the CEO’s care; and

(b)outlines steps or measures designed to assist the child to meet those needs.

(6)As soon as practicable after the CEO prepares or modifies a care plan, the CEO must ensure that a copy of the care plan or modification, as the case requires, is given to —

(a)the child; and

(b)each parent of the child; and

(c)any carer of the child; and

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

[Section 89 amended by No. 49 of 2010 s. 10.]

90.Review of care plan

(1)The CEO must carry out a review of the operation and effectiveness of every care plan at regular intervals not exceeding 12 months.

(2)In the course of the review the CEO must have regard to any views expressed by —

(a)the child; and

(b)a parent of the child; and

(c)any carer of the child; and

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

(3)The CEO must prepare a written report on the outcome of the review and must ensure that, where practicable, a copy of the report is given to each of the people mentioned in subsection (2).

(4)The CEO must keep a record of reviews carried out, and reports prepared, under this section in a manner that the CEO considers appropriate.

Subdivision 4 — Review of care planning decisions

[Heading amended by No. 49 of 2010 s. 11.]

91.Terms used

In this Subdivision, unless the contrary intention appears —

applicant means a person who makes an application under section 93(1);

care plan has the meaning given to that term in section 89(1);

care planning decision, in relation to a child, means a decision set out in a care plan for the child but does not include a secure care decision referred to in section 88G;

case review panel means the case review panel established under section 92;

parent has the meaning given to that term in section 42.

[Section 91 amended by No. 49 of 2010 s. 12.]

92.Case review panel

(1)The CEO must establish a case review panel for the purposes of this Subdivision.

(2)The case review panel is to consist of not less than 3 members appointed by the CEO.

(3)The members of the case review panel are to be people who have such experience, skills, attributes or qualifications as the CEO considers appropriate to enable them to effectively perform their review function.

(4)An officer is not eligible to be appointed, or hold office, as a member of the case review panel.

(5)The CEO may remove and replace members of the case review panel.

(6)The CEO must appoint one of the members of the case review panel to be the chairperson.

(7)The CEO may —

(a)direct that the members of the case review panel (other than an employee as defined in the Public Sector Management Act 1994 section 3(1)) are to be paid remuneration or allowances or both; and

(b)determine the amount of any such payments on the recommendation of the Public Sector Commissioner.

(8)The CEO must provide the case review panel with such support services as it may reasonably require.

[Section 92 amended by No. 39 of 2010 s. 89.]

93.Initial review

(1)An application for the review of a care planning decision may be made to the CEO by —

(a)the child; or

(b)a parent of the child; or

(c)any carer of the child; or

(d)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

(2)The application —

(a)must be in writing; and

(b)must set out the grounds on which a review is sought.

(3)The application must be made within —

(a)14 days after the day on which the applicant received a copy of a care plan or modification of a care plan setting out the relevant care planning decision; or

(b)any longer period that the CEO in special circumstances allows.

(4)The CEO must refer the application, together with such other material as the CEO considers relevant, to the case review panel.

(5)On a referral under subsection (4) the case review panel must consider the application and other material (if any) and report to the CEO on its recommendations in respect of the application.

(6)The CEO, after considering the report of the case review panel and any other information available to the CEO, must —

(a)confirm, vary or reverse the care planning decision; or

(b)substitute another decision for the care planning decision; or

(c)refer the matter back to the case review panel for further consideration and report.

(7)The CEO must give the applicant written notice of his or her decision under subsection (6) and written reasons for it.

(8)If an application is made under subsection (1), the decision that is the subject of the application continues to have effect pending the review unless the CEO otherwise directs.

[Section 93 amended by No. 49 of 2010 s. 13.]

94.Review of CEO’s decision

A person who is aggrieved by a decision made by the CEO under section 93(6)(a) or (b) may apply to the State Administrative Tribunal for a review of the decision.

95.Procedure

(1)The CEO may give directions in writing to the case review panel as to its procedure, but otherwise, subject to subsection (2), the case review panel may determine its own procedure.

(2)The case review panel must give each applicant a reasonable opportunity to make submissions in respect of the application.

Division 6Provisions about leaving the CEO’s care

96.People who qualify for assistance

For the purposes of this Division a person qualifies for assistance if —

(a)the person has left the CEO’s care; and

(b)the person is under 25 years of age; and

(c)the person at any time after the person reached 15 years of age —

(i)was the subject of a protection order (time‑limited) or a protection order (until 18); or

(ii)was the subject of a negotiated placement agreement in force for a continuous period of at least 6 months; or

(iii)was provided with placement services under section 32(1)(a) for a continuous period of at least 6 months.

97.Child’s entitlement to personal material

(1)In this section —

personal material, in relation to a child, means —

(a)the child’s birth certificate; or

(b)the child’s passport; or

(c)any school report or other report relating to the child’s education; or

(d)any photograph of the child; or

(e)any other document or material relating to the child that is prescribed, or of a class prescribed, in the regulations.

(2)When a child leaves the CEO’s care, the child has a right to the possession, free of charge, of any personal material held by the Department or by any person who has provided care for the child under a placement arrangement or a secure care arrangement.

[Section 97 amended by No. 49 of 2010 s. 14.]

98.Provision of social services

(1)The CEO must ensure that a child who leaves the CEO’s care is provided with any social services that the CEO considers appropriate having regard to the needs of the child as identified in the care plan for the child under section 89.

(2)Subsection (1) does not apply to a child who ceases to be in provisional protection and care.

99.Provision of assistance to obtain accommodation etc.

Without limiting section 98, the CEO must ensure that a person who qualifies for assistance is provided with services to assist the person to do any one or more of the following —

(a)obtain accommodation;

(b)undertake education and training;

(c)obtain employment;

(d)obtain legal advice;

(e)access health services;

(f)access counselling services.

100.Provision of financial assistance

(1)The CEO may provide a person who qualifies for assistance with financial assistance in the form of —

(a)a contribution to expenses incurred in obtaining, furnishing and equipping accommodation; or

(b)a contribution to expenses incurred by the person in living near the place where the person is, or will be —

(i)employed or seeking employment; or

(ii)undertaking education or training;

or

(c)a grant to enable the person to meet expenses connected with his or her education or training.

(2)Financial assistance may be provided under this section on any terms and conditions that the CEO considers appropriate.

(3)Without limiting subsection (2), the terms and conditions may include provisions as to repayment and the recovery of outstanding amounts.

Division 7Offences

Subdivision 1 — Children generally

101.Failing to protect child from harm

(1)A person who has the care or control of a child and who engages in conduct —

(a)knowing that the conduct may result in the child suffering harm as a result of any one or more of the following —

(i)physical abuse; or

(ii)sexual abuse; or

(iii)emotional abuse; or

(iv)psychological abuse; or

(v)neglect as defined in section 28(1);

or

(b)reckless as to whether the conduct may have that result,

is guilty of a crime, and is liable to imprisonment for 10 years.

(2)In subsection (1) —

engage in conduct means —

(a)to do an act; or

(b)to omit to do an act;

harm has the meaning given to that term in section 28(1).

102.Leaving child unsupervised in vehicle

A person who has the care or control of a child and who leaves the child in a motor vehicle (as defined in the Road Traffic Act 1974) without proper supervision for such period or in such circumstances that —

(a)the child becomes or is likely to become emotionally distressed; or

(b)the child’s health becomes or is likely to become permanently or temporarily impaired,

is guilty of a crime, and is liable to imprisonment for 5 years.

Summary conviction penalty: a fine of $36 000 and imprisonment for 3 years.

[Section 102 amended by No. 49 of 2010 s. 66.]

103.Tattooing or branding

A person must not in any manner tattoo or brand any part of the body of a child unless the person has first obtained the written consent of a parent of the child to tattoo or brand the child in that manner and on that part of the child’s body.

Penalty: a fine of $12 000 and imprisonment for one year.

[Section 103 amended by No. 49 of 2010 s. 85.]

104A.Body piercing

(1)In this section —

body piercing means piercing a part of the body for the purpose of inserting a bar, pin, ring, stud or similar thing.

(2)A person must not carry out body piercing on any of the following parts of the body of a child —

(a)the genitals;

(b)the anal area;

(c)the perineum;

(d)the nipples.

Penalty: a fine of $18 000 and imprisonment for 18 months.

(3)It is not a defence to a charge under subsection (2) that the child, or a parent of the child, consented to the body piercing.

(4)A person must not carry out body piercing on any other part of the body of a child unless the person has first obtained the written consent of a parent of the child to carry out body piercing on that part of the child’s body.

Penalty: a fine of $12 000 and imprisonment for one year.

(5)Subsection (4) does not apply to body piercing carried out on the ear of a child who has reached 16 years of age.

(6)This section does not apply to body piercing carried out for a medical or therapeutic purpose.

[Section 104A inserted by No. 49 of 2010 s. 67.]

104.Providing long‑term care for young children

(1)In this section —

parenting order means a parenting order made under the Family Law Act 1975 of the Commonwealth or the Family Court Act 1997 which deals with —

(a)the person or persons with whom a child is to live; or

(b)the time a child is to spend with another person or other persons; or

(c)the communication a child is to have with another person or other persons; or

(d)the allocation of parental responsibility for a child;

prescribed period, in relation to —

(a)a child who is under 12 months of age, means one month; or

(b)any other young child, means a period of 3 consecutive months;

provide care, in relation to a young child, means to exercise responsibility for the day‑to‑day care, welfare and development of the child;

young child means a child who has not reached an age at which the child is required to be enrolled in an educational programme under the School Education Act 1999 section 9(1).

(2)A person must not provide care for a young child for longer than the prescribed period unless the person is —

(a)a parent of the child; or

(b)an adult relative of the child; or

(c)a carer of the child; or

(d)a person who has made an application for a parenting order in relation to the child, at any time before the application is finally determined; or

(e)a person in whose favour a parenting order has been made in relation to the child, while the order is in force; or

(fa)caring for the child under a surrogacy arrangement, as defined in the Surrogacy Act 2008, and not more than one year has elapsed since the day on which the child was born; or

(f)a person who is providing care for the child in accordance with an approval under subsection (3).

Penalty: a fine of $12 000 and imprisonment for one year.

(3)The CEO may give a person approval to provide care for a young child.

(4)An approval under subsection (3) —

(a)must be in writing; and

(b)has effect for such period not exceeding 12 months as is specified in the approval; and

(c)may be subject to such conditions as the CEO considers appropriate; and

(d)may be revoked at any time; and

(e)cannot be renewed.

[Section 104 amended by No. 35 of 2006 s. 201; No. 47 of 2008 s. 57; No. 49 of 2010 s. 85.]

Subdivision 2 — Children under placement arrangements or secure care arrangements

[Heading amended by No. 49 of 2010 s. 15.]

105.Terms used

(1)In this Subdivision —

child means a child who is the subject of a placement arrangement or a secure care arrangement;

place of residence, in relation to a child, means the place where the child lives under a placement arrangement or a secure care arrangement.

(2)For the purposes of this Subdivision there is lawful authority for an act if —

(a)the act is done with the written consent of the CEO; or

(b)except in section 106, the act is done by, or with the written consent of, a carer of the child concerned; or

(c)in the case of a child who is the subject of a negotiated placement agreement, the act is done by, or with the written consent of, a parent of the child.

[Section 105 amended by No. 49 of 2010 s. 16.]

106.Removing child from State

A person must not, without lawful authority, remove a child, or cause or permit a child to be removed, from the State.

Penalty: a fine of $24 000 and imprisonment for 2 years.

[Section 106 amended by No. 49 of 2010 s. 85.]

107.Removing child from place of residence

(1)In this section —

another law means a law of another State or a Territory or New Zealand .

(2)A person must not, without lawful authority, remove a child from the child’s place of residence.

Penalty: a fine of $12 000 and imprisonment for one year.

(3)A person must not, without lawful authority, counsel, induce or assist a child to leave the child’s place of residence.

Penalty: a fine of $12 000 and imprisonment for one year.

(4)Subsections (2) and (3) apply whether the conduct constituting the offence is carried out wholly within or wholly outside the State or partly within and partly outside the State.

(5)If conduct constitutes an offence under this section and an offence under another law, a person who is convicted, found guilty or acquitted of the offence under another law is not liable to be prosecuted for the offence under this section.

[Section 107 amended by No. 49 of 2010 s. 85.]

108.Harbouring child absent from place of residence

A person must not harbour a child if the person knows that the child has left, or has been removed from, the child’s place of residence without lawful authority.

Penalty: a fine of $12 000 and imprisonment for one year.

[Section 108 amended by No. 49 of 2010 s. 85.]

109.Preventing child’s return to place of residence

A person must not prevent the return of a child to the child’s place of residence if the person knows that the child has left, or has been removed from, the child’s place of residence without lawful authority.

Penalty: a fine of $12 000 and imprisonment for one year.

[Section 109 amended by No. 49 of 2010 s. 85.]

110.CEO may prohibit communication with child

(1)The CEO may, by written notice, direct a person not to communicate, or attempt to communicate, in any way with a child specified in the notice.

(2)A person who fails to comply with a direction under subsection (1) commits an offence.

Penalty: a fine of $6 000.

[Section 110 amended by No. 49 of 2010 s. 85.]

111.Evidentiary provision

In proceedings for an offence under this Subdivision, an averment in the charge that an act was done without lawful authority is, on proof that the act was done, proof that the act was done without lawful authority unless the contrary is proved.

[Section 111 amended by No. 84 of 2004 s. 80.]

Division 8 — Powers of restraint, search and seizure

112.Terms used

In this Division —

approved person means a person who is approved or belongs to a class of persons approved under section 113A(1);

authorised person means —

(a)an authorised officer; or

(b)a police officer; or

(c)an approved person;

disposable article means —

(a)a disposable hypodermic needle or syringe; or

(b)a disposable cigarette lighter; or

(c)any other thing that is disposable in character and that does not exceed the prescribed amount in value;

firearm has the meaning given to that term in the Firearms Act 1973 section 4;

intoxicant means —

(a)alcohol; or

(b)a drug or other substance capable of intoxicating a person;

prohibited article means a prohibited drug or a prohibited plant as those terms are defined in the Misuse of Drugs Act 1981 section 3(1);

weapon means a controlled weapon or a prohibited weapon as those terms are defined in the Weapons Act 1999 section 3.

[Section 112 amended by No. 49 of 2010 s. 68.]

113A.Approving persons for purposes of this Division

(1)The CEO may approve a person or class of persons for the purposes of this Division if the CEO is satisfied that the person has, or persons belonging to that class have, the experience and training that the CEO considers necessary for the proper exercise of the powers conferred by this Division.

(2)An approval under subsection (1) —

(a)must be in writing; and

(b)may be subject to such conditions as the CEO considers appropriate; and

(c)may be revoked at any time.

[Section 113A inserted by No. 49 of 2010 s. 69.]

113.Prerequisites for exercise of power

(1)A power conferred by this Division may be exercised by an authorised officer only if —

(a)the child concerned —

(i)is in the CEO’s care; or

(ii)is being moved, or has been moved, to a safe place under section 41;

and

(b)the authorised officer believes on reasonable grounds that, unless the power is exercised, the child concerned is likely to —

(i)endanger the health or safety of the child or another person; or

(ii)cause serious damage to property.

(2)A power conferred by this Division may be exercised by a police officer only if —

(a)the child concerned is being moved, or has been moved, to a safe place under section 41 or to a secure care facility under a secure care arrangement; and

(b)the police officer believes on reasonable grounds that, unless the power is exercised, the child concerned is likely to —

(i)endanger the health or safety of the child or another person; or

(ii)cause serious damage to property.

(3)A power conferred by this Division may be exercised by an approved person only if —

(a)the child concerned is in the CEO’s care; and

(b)the approved person believes on reasonable grounds that, unless the power is exercised, the child concerned is likely to —

(i)endanger the health or safety of the child or another person; or

(ii)cause serious damage to property.

[Section 113 amended by No. 49 of 2010 s. 70.]

114.Child may be restrained

An authorised person may restrain a child but only for the period, and to the extent, necessary, in the opinion of the authorised person, to prevent the child —

(a)endangering the health or safety of the child or another person; or

(b)causing serious damage to property.

[Section 114 amended by No. 49 of 2010 s. 84.]

115.Child may be searched

(1)An authorised person may search a child, and any thing found on or with the child, for any thing or substance that can be seized under section 116.

(2)The search of a child must be done —

(a)by an authorised person, or a person designated under subsection (3), who is of the same sex as the child; and

(b)in the presence of at least one other adult.

(3)If it is reasonably necessary in order to do the search, an authorised person may designate another person to do the search or to assist in doing the search.

(4)A person designated under subsection (3) —

(a)may do the search or assist in doing the search; and

(b)must obey any lawful and reasonable direction of the authorised person.

(5)Nothing in this section authorises a search that involves —

(a)the removal of some or all of a child’s clothing; or

(b)an examination of the body cavities of a child.

[Section 115 amended by No. 49 of 2010 s. 84.]

116.Certain articles may be seized

An authorised person may seize from a child any thing or substance the seizure of which is necessary, in the opinion of the authorised person —

(a)to prevent the child endangering the health or safety of the child or another person; or

(b)to prevent the child causing serious damage to property.

[Section 116 amended by No. 49 of 2010 s. 84.]

117.How seized articles to be dealt with

(1)In this section —

seized means seized under section 116.

(2)If a firearm, weapon or prohibited article is seized from a child by an authorised officer or approved person, the authorised officer or approved person must deliver it into the custody of a police officer as soon as practicable after it is seized.

(3)If a disposable article or an intoxicant (other than a prohibited article) is seized from a child, an authorised person may destroy it.

(4)Any thing or substance seized from a child that is not dealt with under subsection (2) or (3) —

(a)must be kept in safe keeping for such period as an authorised person considers necessary —

(i)to protect the health or safety of the child or another person; or

(ii)to prevent the child causing serious damage to property;

and

(b)at the end of that period, must be returned to the child or dealt with under subsection (5).

(5)If, at the end of the period referred to in subsection (4)(a), it is not reasonably practicable (for whatever reason) to return the thing or substance seized to the child, an authorised person must deal with the thing or substance in accordance with the regulations.

[Section 117 amended by No. 49 of 2010 s. 71 and 84.]

118.Use of reasonable force

Reasonable force may be used to do a search under section 115 and to seize any thing or substance that can be seized under section 116.

119.Prescribed procedures

The regulations may prescribe procedures to be followed in relation to the exercise of the powers conferred by this Division, and an authorised person must ensure that those procedures are complied with when exercising those powers.

[Section 119 amended by No. 49 of 2010 s. 84.]

Division 9Warrants

120.Applying for warrant s

(1)In this section —

remote communication means any way of communicating at a distance including by telephone, telephone typewriter, fax, email and radio.

(2)This section applies to and in respect of an application for a warrant if another section in this Part requires the application to be made in accordance with this section.

(3)The application must be made, and any information in support of it must be given, on oath.

(4)The application must be made in person before a judge or magistrate unless —

(a)the warrant is needed urgently; and

(b)the applicant reasonably believes that a judge or magistrate is not known to be available within a reasonable distance of the applicant,

in which case it may be made to a judge or magistrate by remote communication.

(5)If the application is made to a judge or magistrate by remote communication —

(a)the applicant must prepare a written application and if practicable send it to the judge or magistrate; and

(b)if it is not practicable to send the written application to the judge or magistrate, the applicant may make the application orally; and

(c)if it is not practicable to comply with subsection (3), the applicant may make the application, and give any information in support of it, in unsworn form; and

(d)the judge or magistrate must not grant the application unless satisfied that there are grounds under subsection (4) for the application not to be made in person.

(6)If the application is made orally under subsection (5)(b), the judge or magistrate must complete a written application.

(7)If information in support of the application is given orally, the judge or magistrate must make a record of it.

(8)If —

(a)the applicant gives the judge or magistrate unsworn information under subsection (5)(c); and

(b)the judge or magistrate issues a warrant,

the applicant must send the judge or magistrate an affidavit containing all that information as soon as practicable after the warrant is issued.

(9)If the application is made by remote communication and the judge or magistrate issues a warrant, then —

(a)if it is reasonably practicable to send a copy of the warrant to the applicant by remote communication, the judge or magistrate must immediately do so; or

(b)if it is not reasonably practicable to send a copy of the warrant to the applicant by remote communication —

(i)the judge or magistrate must immediately give the applicant by remote communication any information that is required to be set out in the warrant; and

(ii)the applicant must complete a form of the warrant with the information given by the judge or magistrate; and

(iii)the applicant must give the judge or magistrate a copy of the completed form as soon as practicable after the warrant is issued; and

(iv)the judge or magistrate must attach the copy of the completed form to the original warrant issued by the judge or magistrate and any affidavit received from the applicant in support of the application, and make them available for collection by the applicant.

(10)If a copy of a warrant is received by remote communication under subsection (9)(a) or a form of warrant is completed in accordance with subsection (9)(b)(ii) it has the same effect as the original warrant issued by the judge or magistrate.

[Section 120 amended by No. 8 of 2009 s. 32(3).]

121.Warrant (access), effect of

(1)In this section —

warrant (access) means a warrant (access) issued under section 34(3), 52(4) or 135(5).

(2)A warrant (access) authorises any authorised officer —

(a)to enter, at any time, any place where the officer reasonably believes the child to be; and

(b)to search the place for the purpose of finding the child; and

(c)to remain at the place for as long as the officer considers reasonably necessary to find the child; and

(d)if the child is found, to remain at the place and have access to the child for as long as the officer considers reasonably necessary.

(3)The entitlement to have access to the child referred to in subsection (2)(d) includes an entitlement to both see and talk with the child without a parent of the child or any other person being present.

122.Warrant (apprehension), effect of

(1)In this section —

warrant (apprehension) means a warrant (apprehension) issued under section 85(3) or 86(3).

(2)A warrant (apprehension) authorises any authorised officer or police officer —

(a)to enter, at any time, any place where the officer reasonably believes the child to be; and

(b)to search the place for the purpose of finding the child; and

(c)to remain at the place for as long as the officer considers reasonably necessary to find the child; and

(d)if the child is found, to apprehend the child and —

(i)in the case of a warrant issued under section 85, to take the child to such place as the CEO directs; or

(ii)in the case of a warrant issued under section 86, to take the child to the place referred to in section 86(1) or such other place as the CEO directs.

123.Warrant (provisional protection and care), effect of

(1)In this section —

warrant (provisional protection and care) means a warrant (provisional protection and care) issued under section 35(3) or 133(3).

(2)A warrant (provisional protection and care) authorises any authorised officer or police officer —

(a)to enter, at any time, any place where the officer reasonably believes the child to be; and

(b)to search the place for the purpose of finding the child; and

(c)to remain at the place for as long as the officer considers reasonably necessary to find the child; and

(d)if the child is found, to take the child into provisional protection and care and to such place as the CEO directs.

124.Execution of warrant

(1)When executing a warrant issued under this Part, an authorised officer or police officer, as the case may be —

(a)may use reasonable force and assistance; and

(b)must produce the warrant or a copy of the warrant if asked to do so by a person at the place where the warrant is, or is to be, executed.

(2)Without limiting subsection (1)(a), an authorised officer who is executing a warrant issued under this Part may call on the assistance of a police officer.

(3)A police officer who provides assistance under subsection (2) may use reasonable force when doing so.

Division 9A — Reporting sexual abuse of children

[Heading inserted by No. 26 of 2008 s. 5.]

124A.Terms used

In this Division —

commencement day means the day on which the Children and Community Services Amendment (Reporting Sexual Abuse of Children) Act 2008 section 5 comes into operation 1;

doctor means a person registered under the Health Practitioner Regulation National Law ( Western Australia ) in the medical profession;

identifying information, in relation to a reporter, means information —

(a)that identifies the reporter; or

(b)that is likely to lead to the identification of the reporter; or

(c)from which the identity of the reporter could be deduced;

midwife means a person registered under the Health Practitioner Regulation National Law ( Western Australia ) whose name is entered on the Register of Midwives kept under that Law;

nurse means a person registered under the Health Practitioner Regulation National Law ( Western Australia ) in the nursing and midwifery profession whose name is entered on the Register of Nurses kept under that Law;

report means a report under section 124B(1);

reporter —

(a)means a person who makes a report; and

(b)in sections 124F, 124G and 124H includes a person who, in good faith —

(i)provides information on the basis of which a report is made; or

(ii)is otherwise concerned in making a report or causing a report to be made,

except the child about whom a report is made, being the child believed by the reporter to be the subject of sexual abuse;

sexual abuse, in relation to a child, includes sexual behaviour in circumstances where —

(a)the child is the subject of bribery, coercion, a threat, exploitation or violence; or

(b)the child has less power than another person involved in the behaviour; or

(c)there is a significant disparity in the developmental function or maturity of the child and another person involved in the behaviour;

teacher means —

(a)a person who, under the Western Australian College of Teaching Act 2004, is registered, provisionally registered or has a limited authority to teach; or

(b)a person who is appointed under the School Education Act 1999 section 236(2) as a member of the teaching staff of a community kindergarten; or

(c)a person who provides instruction in a course that is —

(i)mentioned in the School Education Act 1999 section 11B(1)(a), (b) or (e); and

(ii)prescribed for the purposes of this definition;

or

(d)a person who instructs or supervises a student who is participating in an activity that is —

(i)part of an educational programme of a school under an arrangement mentioned in the School Education Act 1999 section 24(1); and

(ii)prescribed for the purposes of this definition;

or

(e)a person employed by the chief executive officer as defined in the Young Offenders Act 1994 section 3 to teach detainees at a detention centre as defined in that section.

[Section 124A inserted by No. 26 of 2008 s. 5; amended by No. 35 of 2010 s. 39.]

124B.Duty of certain people to report sexual abuse of children

(1)A person who —

(a)is a doctor, nurse, midwife, police officer or teacher; and

(b)believes on reasonable grounds that a child —

(i)has been the subject of sexual abuse that occurred on or after commencement day; or

(ii)is the subject of ongoing sexual abuse;

and

(c)forms the belief —

(i)in the course of the person’s work (whether paid or unpaid) as a doctor, nurse, midwife, police officer or teacher; and

(ii)on or after commencement day,

must report the belief as soon as practicable after forming the belief.

Penalty: a fine of $6 000.

(2)For the purposes of subsection (1) the report must be made to —

(a)the CEO; or

(b)a person approved by the CEO; or

(c)a person who is a member of a class of persons approved by the CEO.

(3)In a prosecution for an offence under subsection (1) it is a defence for the person charged to prove that he or she honestly and reasonably believed that —

(a)all of the reasonable grounds for his or her belief were the subject of a report made by another person; or

(b)the CEO had caused, or was causing, inquiries to be made under section 31 about the child’s wellbeing; or

(c)the CEO had taken, or was taking, action under section 32 in respect of the child’s wellbeing.

(4)A requirement that a person has under subsection (1) is in addition to, and does not affect, any other function that the person has in respect of the child in the course of the person’s work as a doctor, nurse, midwife, police officer or teacher.

[Section 124B inserted by No. 26 of 2008 s. 5; amended by No. 49 of 2010 s. 85.]

124C.Reports under s. 124B, form and content of

(1)A report may be written or oral but if oral the reporter must make a written report as soon as practicable after the oral report is made.

Penalty: a fine of $3 000.

(2)A written report may, but does not need to be, in a form approved by the CEO.

(3)A report is to contain —

(a)the name and contact details of the reporter; and

(b)the name of the child or, if the child’s name cannot be obtained after reasonable inquiries, a description of the child; and

(c)if, or to the extent, known to the reporter —

(i)the child’s date of birth; and

(ii)information about where the child lives; and

(iii)the names of the child’s parents or other responsible persons as defined in section 41(1);

and

(d)the grounds for the reporter’s belief that the child has been the subject of sexual abuse or is the subject of ongoing sexual abuse; and

(ea)if, or to the extent, known to the reporter —

(i)the name of any person alleged to be responsible for the sexual abuse; and

(ii)the person’s contact details; and

(iii)the person’s relationship to the child;

and

(e)any other information that is prescribed.

(4)A person mentioned in section 124B(2)(b) or (c) who receives —

(a)a written report must give the report to the CEO as soon as practicable after receiving it; or

(b)an oral report must inform the CEO of the contents of the report as soon as practicable after receiving it.

Penalty: a fine of $6 000.

(5)As soon as practicable after receiving a written report the CEO must advise the reporter of the receipt.

[Section 124C inserted by No. 26 of 2008 s. 5; amended by No. 49 of 2010 s. 72 and 85.]

124D.CEO to give copies of reports under s. 124B to police

(1)In this section —

Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892.

(2)The CEO is to give a copy of each written report to the Commissioner of Police as soon as practicable after the report is received by the CEO.

(3)Nothing in subsection (2) affects the functions of the CEO or any other person under section 23, 31 or 32.

[Section 124D inserted by No. 26 of 2008 s. 5.]

124E.Time limit for prosecuting offences under s. 124B and 124C

A prosecution for an offence under section 124B(1) or 124C(4) —

(a)must be commenced within 36 months after the date on which the offence was allegedly committed; or

(b)with the consent of the Attorney General, may be commenced at a later time.

[Section 124E inserted by No. 26 of 2008 s. 5.]

124F.Confidentiality of reporter’s identity

(1)In this section —

child means the child about whom a report is made by the reporter, being the child believed by the reporter to be the subject of sexual abuse.

(2)A person who, in the course of duty, becomes aware of the identity of a reporter, must not disclose identifying information to another person unless —

(a)the disclosure is made for the purpose of, or in connection with, performing functions under this Act; or

(b)the disclosure is made with the written consent of the reporter; or

(c)the disclosure is made to or by a police officer for the purpose of, or in connection with —

(i)an investigation of a suspected offence under a written law in relation to the child; or

(ii)the conduct of a prosecution of an offence under a written law in relation to the child;

or

(d)the disclosure is made for the purpose of, or in connection with, the prosecution of an offence —

(i)in relation to the reporter, under —

(I)section 124B(1) in the case where a report is made; or

(II)section 124C(1) or 124F(2);

or

(ii)under section 124C(4) or 244 in relation to the report;

or

(e)the disclosure is made by an officer for the purposes of protection proceedings in relation to the child; or

(f)the disclosure is made by an officer for the purposes of an application under section 94 for the review of a decision relating to the child; or

(g)the disclosure is made by an officer for the purposes of a matter or proceedings relating to the child arising under the Family Law Act 1975 of the Commonwealth Part VII or the Family Court Act 1997 Part 5; or

(h)the disclosure is made by an officer for the purposes of an application to, or appeal from a decision of, the Family Court under the Adoption Act 1994 that relates to the child; or

(i)the disclosure is made by an officer for the purposes of any other legal proceedings of a kind prescribed for the purposes of this subsection and relating to the child; or

(j)the disclosure is made in legal proceedings with the leave of the court or tribunal concerned; or

(k)the identifying information has already been disclosed in legal proceedings and the court or tribunal concerned has not made an order prohibiting further disclosure.

Penalty: a fine of $24 000 and imprisonment for 2 years.

[Section 124F inserted by No. 26 of 2008 s. 5; amended by No. 49 of 2010 s. 85.]

124G.Evidence and legal proceedings

(1)A written report or a written record as to the contents of an oral report is to be taken to be a document that is not required to be disclosed under the Criminal Procedure Act 2004 section 35, 42, 61, 62, 95 or 96 unless —

(a)the proceedings are for the prosecution of an offence mentioned in section 124F(2)(d); or

(b)the court concerned orders otherwise.

(2)A party to any legal proceedings cannot require a person to produce to the party, or the court or tribunal concerned, a report or evidence of the contents of a report unless —

(a)the proceedings are for the prosecution of an offence mentioned in section 124F(2)(d); or

(b)the court or tribunal concerned gives leave to do so.

(3)A report or evidence of the contents of a report is not admissible in any legal proceedings unless —

(a)the proceedings are for the prosecution of an offence mentioned in section 124F(2)(d); or

(b)the report or the evidence of the contents of the report is given by an officer and the proceedings are of a kind mentioned in section 124F(2)(e) to (i) inclusive; or

(c)the court or tribunal concerned orders otherwise.

(4)In any legal proceedings a person must not be asked and, if asked, is entitled to refuse to answer, any question the answer to which would give identifying information in relation to a reporter unless —

(a)the proceedings are for the prosecution of an offence mentioned in section 124F(2)(d); or

(b)the person is an officer and the proceedings are of a kind mentioned in section 124F(2)(e) to (i) inclusive; or

(c)the court or tribunal concerned gives leave to do so.

(5)In any legal proceedings a person must not be asked and, if asked, is entitled to refuse to answer, any question as to whether a particular matter is the subject of a report unless —

(a)the proceedings are for the prosecution of an offence mentioned in section 124F(2)(d); or

(b)the person is an officer and the proceedings are of a kind mentioned in section 124F(2)(e) to (i) inclusive; or

(c)the court or tribunal concerned gives leave to do so.

(6)Any other evidence as to identifying information in relation to a reporter must not be adduced in any legal proceedings unless —

(a)the proceedings are for the prosecution of an offence mentioned in section 124F(2)(d); or

(b)the evidence is adduced by an officer and the proceedings are of a kind mentioned in section 124F(2)(e) to (i) inclusive; or

(c)the court or tribunal concerned orders otherwise.

[Section 124G inserted by No. 26 of 2008 s. 5.]

124H.Orders, leave of courts etc. under s. 124F or 124G

(1)In this section —

leave means leave for the purposes of section 124F(2)(j) or 124G(2)(b), (4)(c) or (5)(c);

order means an order for the purposes of section 124G(1)(b), (3)(c) or (6)(c).

(2)A court or tribunal must not make an order or grant leave unless —

(a)it is satisfied that to safeguard and promote the wellbeing of the child about whom the report was made it is necessary for the order to be made or for the leave to be given; or

(b)it is satisfied that —

(i)the identifying information, or the content of the report (as is relevant in the case) is of critical importance in the proceedings; and

(ii)there is compelling reason in the public interest for disclosure of the identifying information, or disclosure, production or adducing of the report or evidence (as is relevant in the case);

or

(c)in a case concerning the disclosure of identifying information in relation to a reporter, the reporter consents to the disclosure.

(3)The court or tribunal may make an order or grant leave on any condition that it thinks fit having regard to the need to prevent, as far as practicable, further disclosure of the information that is the subject of the order or leave.

(4)An application for an order or leave —

(a)must not be heard in public; and

(b)must be dealt with in a way that protects, as far as practicable, the identity of the reporter pending a decision on the application.

[Section 124H inserted by No. 26 of 2008 s. 5.]

Division 10General

125A.Assessors, appointment and functions of

(1)In this section —

facility means a residential facility or a secure care facility.

(2)The CEO may, in writing, appoint a person to be an assessor if the CEO is satisfied that the person has the experience, skills, attributes or qualifications the CEO considers appropriate to enable the person to effectively exercise the powers in subsection (3).

(3A)An officer is not eligible for appointment under subsection (2).

(3B)An assessor is to be paid such remuneration and allowances (if any) as the CEO, on the recommendation of the Minister for Public Sector Management, determines.

(3)An assessor may, at any time, visit a facility and do one or more of the following —

(a)enter and inspect the facility;

(b)inquire into the operation and management of the facility;

(c)inquire into the wellbeing of any child in the facility;

(d)see and talk with any child in the facility;

(e)inspect any document relating to the facility or to any child in the facility.

(4A)A child in a facility, or a parent or other relative of a child in a facility, may request the person in charge of the facility to arrange for an assessor to visit the facility and see and talk with the child.

(4)An assessor must provide a written report to the CEO about each visit made by the assessor under this section.

[Section 125A inserted by No. 49 of 2010 s. 17.]

125B.Identity cards for assessors

(1)The CEO must ensure that each assessor is issued with an identity card in a form approved by the CEO.

(2)An assessor must display his or her identity card when visiting a facility under section 125A(3).

(3)In any proceedings the production by an assessor of his or her identity card is conclusive evidence of his or her appointment under section 125A(2).

[Section 125B inserted by No. 49 of 2010 s. 17.]

125.Access to child , meaning of

If a provision of this Part authorises an authorised officer to have access to a child, the officer is entitled to both see and talk with the child without a parent of the child or any other person being present.

126.Recovery of certain expenditure

(1)In this section —

child means a child —

(a)who is in provisional protection and care; or

(b)who is the subject of a protection order (supervision); or

(c)who is the subject of a negotiated placement agreement; or

(d)to whom placement services are provided under section 32(1)(a).

(2)If the Court is satisfied, on the application of the CEO, that expenses have been or are likely to be incurred by the Department in connection with the performance of functions under this Part in respect of a child, the Court may order a parent of the child to pay to the Department such amount in reimbursement or anticipation of those expenses as the Court considers appropriate.

(3)If the child concerned is the subject of a negotiated placement agreement, an order is not to be made under subsection (2) that is inconsistent with the terms of the agreement.

(4)An order is not to be made under subsection (2) in respect of a person who is not present before the Court unless the Court is satisfied that the person has received adequate notice of the application.

(5)If an order is made under subsection (2), the Court must cause a certified copy of the order to be sent to —

(a)the Family Court; or

(b)a court of a kind referred to in the Family Court Act 1997 section 39(a) that can, under that section, exercise the Family Court’s non‑federal jurisdictions,

whichever is nearest to the place at which the order was made, for registration in accordance with the Family Court Act 1997 and the order, when so registered, is to be taken for all purposes to be an order made under that Act by the Family Court or the court referred to in paragraph (b), as the case requires.

127.CEO may give consent in lieu of parent in some cases

(1)In this section —

consent includes authorisation and permission.

(2)In any case where the consent of a parent of a child is required or customarily sought, the CEO may, in writing, give that consent in relation to —

(a)a child who is in provisional protection and care, if it is given in the exercise of the responsibility that the CEO has for the child under section 29(2); or

(b)a child who is the subject of a protection order (time‑limited) or protection order (until 18); or

(c)a child who is the subject of a negotiated placement agreement, if the agreement authorises the CEO to do so.

(3)A consent given under subsection (2) may incorporate a waiver of legal liability.

[Section 127 inserted by No. 49 of 2010 s. 73.]

128. Records of children in CEO’s care to be kept

(1)The CEO must ensure that records are kept in respect of every child who is or has been in the CEO’s care.

(2)The records are to contain prescribed information.

129.Protection from liability for giving information

(1)This section applies if a person acting in good faith —

(a)gives information to the CEO or another officer about any aspect of the wellbeing of a child; or

(ba)gives information of the kind described in section 33A to the CEO or another officer; or

(b)gives information to the CEO or another officer for the purposes of, or in connection with, an investigation referred to in section 32(1)(d) or 33B(c); or

(c)gives information to the CEO or another officer for the purposes of, or in connection with, a protection application or any other application to the Court under this Part; or

(d)gives information to the CEO under section 40(6); or

(e)makes a report under section 124B(1); or

(f)notifies the CEO of an allegation in accordance with a requirement to do so under regulations made under the Child Care Services Act 2007.

(2)In giving the information or making the report or notification the person —

(a)does not incur any civil or criminal liability; and

(b)is not to be taken to have breached any duty of confidentiality or secrecy imposed by law; and

(c)is not to be taken to have breached any professional ethics or standards or any principles of conduct applicable to the person’s employment or to have engaged in unprofessional conduct.

(3)The protection given by subsection (2) also applies to a person who, in good faith —

(a)performs a duty that the person has under section 124C(4); or

(b)provides information on the basis of which —

(i)the information mentioned in subsection (1)(a), (ba), (b), (c) or (d) is given; or

(ii)a report is made under section 124B(1); or

(iii)the CEO is notified as mentioned in subsection (1)(f);

or

(c)is otherwise concerned in —

(i)providing the information mentioned in subsection (1)(a), (ba), (b), (c) or (d) or causing the information to be provided; or

(ii)making a report under section 124B(1) or causing a report to be made; or

(iii)notifying the CEO as mentioned in subsection (1)(f) or causing the CEO to be so notified.

[Section 129 amended by No. 26 of 2008 s. 6; No. 49 of 2010 s. 74.]

130.General powers of police officers not affected

The powers conferred by this Part on a police officer are in addition to, and do not limit, the powers that a police officer would have if this Part had not been enacted.

Part 5 — Protection proceedings

Division 1 — Terms used in this Part

131.Terms used

In this Part, unless the contrary intention appears —

child, in relation to protection proceedings, means the child who is the subject of those proceedings;

parent, in relation to a child who is the subject of a protection order other than a protection order (supervision), includes any person who would have had parental responsibility for the child if the order had not been made.

Division 2 — Adjournment and interim orders

132.Adjournment of proceedings

The Court may at any time in the course of protection proceedings —

(a)on its own initiative; or

(b)on the application of a party,

adjourn the proceedings for any period that the Court considers appropriate.

133.Interim orders

(1)The Court may at any time in the course of protection proceedings make an interim order.

(2A)Except in the case of an interim order (secure care), an interim order may be made —

(a)on the Court’s own initiative; or

(b)on the application of a party.

(2B)An interim order (secure care) may be made only on the application of the CEO.

(2)An interim order is an order as to any one or more of the following —

(a)that the child is to be returned to, placed with, or remain with a parent of the child;

(b)that the child is to be taken into, or remain in, provisional protection and care;

(ca)if the child is in provisional protection and care, that —

(i)the CEO is to make a secure care arrangement in respect of the child; or

(ii)a secure care arrangement made by the CEO in respect of the child is to continue;

(c)that the child is to be placed with a person approved by the Court following a report, whether oral or written, from the CEO as to the person’s suitability;

(d)that the child or any other party undergo counselling;

(e)that a parent of the child or any other person specified in the order who has been providing day‑to‑day care for the child is to give to the CEO personal possessions of the child that are specified in the order;

(f)contact between the child and a parent, sibling or other relative of the child or any other person who is significant in the child’s life, including that a person specified in the order is not to have contact (whether direct or indirect) with the child;

(g)any other matter that the Court considers appropriate.

(3)If the Court makes an interim order that the child is to be taken into provisional protection and care, the Court may issue a warrant (provisional protection and care).

Note:Section 123 contains provisions about the effect of a warrant (provisional protection and care).

[Section 133 amended by No. 49 of 2010 s. 18.]

134A.Interim orders (secure care)

(1)The Court must not make an interim order (secure care) unless the Court is satisfied that —

(a)there is an immediate and substantial risk of the child causing significant harm to the child or another person; and

(b)there is no other suitable way to manage that risk and to ensure that the child receives the care the child needs.

(2)An interim order (secure care) must specify the period (the secure care period) for which the child is to be kept in a secure care facility under the secure care arrangement to which the order relates.

(3)If the order is made under section 133(2)(ca)(i), the secure care period must not exceed 21 days unless it is extended under subsection (6).

(4)If the order is made under section 133(2)(ca)(ii), the aggregate of the secure care period and the period for which the child has already been kept in a secure care facility under the secure care arrangement to which the order relates must not exceed 21 days unless the secure care period is extended under subsection (6).

(5)The CEO may apply to the Court for the variation of an interim order (secure care) to extend the secure care period.

(6)On an application under subsection (5) the Court may extend the secure care period by not more than 21 days if the Court is satisfied that there are exceptional reasons for doing so.

(7)The secure care period cannot be extended under subsection (6) more than once.

(8)If, on an application under section 134(1), the Court revokes an interim order (secure care), the CEO must, as soon as practicable after the revocation, cancel the secure care arrangement to which the order relates and ensure that the child is removed from the secure care facility.

[Section 134A inserted by No. 49 of 2010 s. 19.]

134.Variation or revocation of interim order

(1)A party may apply to the Court for the variation or revocation of an interim order.

(2A)In subsection (1) —

variation does not include a variation referred to in section 134A(5).

(2)On an application under subsection (1) the Court may —

(a)confirm the interim order; or

(b)vary the interim order; or

(c)revoke the interim order; or

(d)revoke the interim order and make another interim order.

(3)The Court must not take action under subsection (2)(b), (c) or (d) unless it is satisfied that —

(a)new facts or circumstances have arisen since the interim order was made or last varied, as the case may be; or

(b)each party consents to the action.

(4)The reference in subsection (3) to each party does not include the child unless —

(a)the child has legal representation; or

(b)the Court is satisfied that the child has sufficient maturity and understanding to give consent.

[Section 134 amended by No. 49 of 2010 s. 20.]

135.Access to child by authorised officer while interim order in force

(1)While an interim order as to a matter referred to in section 133(2)(a) or (c) is in force in respect of a child, an authorised officer may have access to the child at any reasonable time.

(2)The entitlement referred to in subsection (1) includes an entitlement to both see and talk with the child without a parent of the child or any other person being present.

(3)An authorised officer may apply to a judge or magistrate for a warrant (access) if the officer —

(a)is denied access to a child; or

(b)suspects that he or she will be denied such access; or

(c)is unable to find the child for the purposes of access.

(4)An application under subsection (3) must be made in accordance with section 120.

(5)On an application under subsection (3) a judge or magistrate may issue a warrant (access) if the judge or magistrate is satisfied —

(a)as to a matter referred to in subsection (3)(a) or (c); or

(b)that there are reasonable grounds for the authorised officer to have the suspicion referred to in subsection (3)(b).

Note: Section 121 contains provisions about the effect of a warrant (access).

[Section 135 amended by No. 8 of 2009 s. 32(3).]

Division 3A — Orders for determination of parentage

[Heading inserted by No. 49 of 2010 s. 36.]

136A.Terms used

In this Division —

parentage testing order means an order under section 136C(1);

parentage testing procedure means a medical procedure prescribed, or included in a class of medical procedures prescribed, for the purposes of this definition.

[Section 136A inserted by No. 49 of 2010 s. 36.]

136B.Orders requiring person to give evidence

(1)If the parentage of a child is a question in issue in protection proceedings, the Court may make an order requiring any person to give such evidence as is material to the question.

(2)The Court may make an order under subsection (1) —

(a)on its own initiative; or

(b)on the application of a party.

[Section 136B inserted by No. 49 of 2010 s. 36.]

136C.Parentage testing orders

(1)If the parentage of a child is a question in issue in protection proceedings, the Court may make an order requiring a parentage testing procedure to be conducted in relation to a person mentioned in subsection (3) for the purpose of obtaining information to assist in determining the parentage of the child.

(2)The Court may make a parentage testing order —

(a)on its own initiative; or

(b)on the application of a party.

(3)A parentage testing order may be made in relation to —

(a)the child; or

(b)a person known to be the mother of the child; or

(c)any other person, if the Court is of the opinion that, if the parentage testing procedure were conducted in relation to the person, the information that could be obtained might assist in determining the parentage of the child.

(4)A parentage testing order may be made subject to terms and conditions.

(5)This section does not limit the operation of section 136B.

[Section 136C inserted by No. 49 of 2010 s. 36.]

136D.Orders associated with parentage testing orders

(1)If the Court makes a parentage testing order, it may also make orders under subsection (2) or (4).

(2)The Court may make any orders that it considers necessary or desirable — 

(a)to enable the parentage testing procedure to be conducted; or

(b)to make the parentage testing procedure more effective or reliable.

(3)Some examples of the kinds of orders the Court may make under subsection (2) are as follows — 

(a)an order requiring a person to submit to a medical procedure;

(b)an order requiring a person to provide a bodily sample;

(c)an order requiring a person to provide information relevant to the person’s medical or family history.

(4)The Court may make any orders that it considers just in relation to costs incurred in relation to — 

(a)conducting the parentage testing procedure or other orders made by the Court in relation to the parentage testing procedure; or

(b)the preparation of reports relating to the information obtained as a result of conducting the parentage testing procedure.

[Section 136D inserted by No. 49 of 2010 s. 36.]

136E.Adult contravening s. 136D order, consequences of

(1)If an adult contravenes a parentage testing order or an order under section 136D, the adult is not liable to any penalty in relation to the contravention.

(2)The Court may draw such inferences from the contravention as appear just in the circumstances.

[Section 136E inserted by No. 49 of 2010 s. 36.]

136F.Procedure etc. ordered for child, parental consent needed in some cases, consequences of refusing to consent

(1)This section applies if a parentage testing order, or an order under section 136D, requires a medical procedure or other act to be carried out in relation to a child who is not in provisional protection and care or the subject of a protection order (time‑limited) or protection order (until 18).

(2)The procedure or act must not be carried out without the consent of a parent of the child.

(3)The Court may draw such inferences from a failure or refusal to consent as mentioned in subsection (2) as appear just in the circumstances.

[Section 136F inserted by No. 49 of 2010 s. 36.]

136G.No liability if parent or CEO consents

(1)A person who conducts, or who assists in conducting, a medical procedure or other act in relation to a child under a parentage testing order, or an order under section 136D, is not liable to any civil or criminal action in relation to the proper conducting of the procedure or act if it is done with the consent of —

(a)a parent of the child; or

(b)the CEO, if the child is in provisional protection and care or is the subject of a protection order (time‑limited) or protection order (until 18).

(2)Subsection (1) does not affect any liability of a person for an act done negligently, or negligently omitted to be done, in relation to conducting the medical procedure or act.

[Section 136G inserted by No. 49 of 2010 s. 36.]

136H.Parentage testing procedures, conduct of etc.

The regulations may provide for — 

(a)the conduct of parentage testing procedures under parentage testing orders; and

(b)the preparation of reports relating to the information obtained as the result of conducting such procedures.

[Section 136H inserted by No. 49 of 2010 s. 36.]

136I.Results of parentage testing procedures admissible in protection proceedings

(1)A report made in accordance with regulations under section 136H(b) may be received in evidence in protection proceedings.

(2)If, under subsection (1), a report is received in evidence in protection proceedings, the Court may make an order requiring the person who made the report, or any person whose evidence may be relevant in relation to the report, to appear before the Court and give evidence in relation to the report.

(3)The Court may make an order under subsection (2) — 

(a)on its own initiative; or

(b)on the application of a party.

[Section 136I inserted by No. 49 of 2010 s. 36.]

Division 3 — Pre‑hearing conferences

136.Court may order pre‑hearing conference

(1)The Court may at any time in the course of protection proceedings make an order referring the application the subject of those proceedings to a conference.

(2)The purpose of a pre‑hearing conference is to give the parties to the proceedings an opportunity to discuss, and reach agreement on, any matter relevant to the application.

(3)The Court must fix a day, time and place for the pre‑hearing conference.

(4)A pre‑hearing conference must be presided over by —

(a)a judge or magistrate; or

(b)a convenor appointed by the Court in accordance with the regulations.

(5)At the conclusion of a pre‑hearing conference the person who presided over the conference must report to the Court on its outcome unless that person is also the judge or magistrate who ordered the conference under subsection (1).

(6)The regulations may —

(a)provide for the appointment of convenors; and

(b)provide for the remuneration and allowances payable to convenors; and

(c)prescribe the classes of people who may attend a pre‑hearing conference; and

(d)confer power on the Court to order the attendance of people at pre‑hearing conferences; and

(e)provide for the procedure at pre‑hearing conferences.

[Section 136 amended by No. 8 of 2009 s. 32(3).]

137.Confidentiality of pre‑hearing conference

(1)Subject to this section, the proceedings of a pre‑hearing conference are confidential.

(2)Evidence of anything said or done, or of any admission made, at a pre‑hearing conference is only admissible in proceedings before any court (including the protection proceedings concerned) if the court concerned grants leave or all the people who attended the pre‑hearing conference consent.

(3)A person who attends a pre‑hearing conference must not disclose any statement made by another person at, or information furnished by another person to, the conference without the leave of the Court or the consent of that other person.

Penalty: a fine of $12 000 and imprisonment of one year.

(4)Subsection (3) does not apply to —

(a)the disclosure of a statement or information in proceedings before a court in accordance with subsection (2);

(b)the making of a record of proceedings at the conference by the person presiding, a person who attended the conference, or his or her legal representative;

(c)discussions between a child who did not attend the conference and his or her legal representative who attended the conference;

(d)discussions between a party who —

(i)has a difficulty understanding or communicating in English; or

(ii)has a disability,

and any other person who attended the conference for the purpose of providing support or assistance to that party;

(e)discussions between a person who attended the conference and his or her legal representative;

(f)discussions between the legal representatives of people who attended the conference;

(g)discussions between officers, police officers, or officers and police officers, about the conference;

(h)the disclosure, in connection with a review of the operation of pre‑hearing conferences generally, of information —

(i)that does not identify any person who attended the conference; or

(ii)that identifies a person who attended the conference if the person has consented to its disclosure;

(i)the disclosure of information by a person who believes on reasonable grounds that it is necessary to do so in order to protect the health or safety of any person or to prevent or minimise damage to any property.

[Section 137 amended by No. 49 of 2010 s. 85.]

Division 4 — Reports about child

138.Term used: report

In this Division —

report means a report under section 139.

139.Court may require report

(1)The Court may at any time in the course of protection proceedings require a person to give the Court a report on any matter relevant to the wellbeing of the child.

(2)The person referred to in subsection (1) is to be a person appointed by the Court in accordance with the regulations.

(3)The report must be in writing unless the Court otherwise directs.

(4)The Court may specify the particular issues that the report must address but this subsection does not limit the issues that may be addressed in the report.

(5)A report is admissible as evidence in protection proceedings.

(6)The Court may give such weight as it thinks fit to the content of a report admitted under subsection (5).

(7)The regulations may —

(a)provide for and in relation to the appointment of persons for the purposes of this section; and

(b)provide for the remuneration and allowances payable to such persons; and

(c)specify who is liable to pay the costs of a report under this section.

140.Access to written report

(1)As soon as practicable after receiving a written report, the Court, subject to the terms of any order made under subsection (3), must take all reasonable steps to ensure that a copy of the report is given to each of the parties.

(2)The Court may give directions as to the manner in which a copy of the report is given to a party.

(3)The Court may order that a copy of the report, or a specified part of the report, is not to be given to a party or parties if the Court is satisfied that there are special circumstances that make the release of the report, or the specified part, to that party or those parties inappropriate.

141.Confidentiality of report

(1)A person who prepares or is given a report must not, without the leave of the Court, disclose information contained in it to another person.

Penalty: a fine of $6 000.

(2)Nothing in subsection (1) prevents the CEO disclosing information contained in a report —

(a)to —

(i)an authorised officer at any time; or

(ii)any other person, after the relevant protection proceedings have concluded,

if the CEO considers that it is appropriate to do so; or

(b)to a public authority, a corresponding authority, or an interested person under section 23.

(3)Nothing in subsection (1) prevents a person disclosing information contained in a report to the person’s legal representative.

[Section 141 amended by No. 49 of 2010 s. 85.]

142.Protection from liability for preparing or giving report

A person who, in good faith, prepares a report or gives a report to the Court —

(a)does not in doing so incur any civil or criminal liability; and

(b)is not in doing so to be taken to have breached any duty of confidentiality or secrecy imposed by law; and

(c)is not in doing so to be taken to have breached any professional ethics or standards or any principles of conduct applicable to the person’s employment or to have engaged in unprofessional conduct.

[Section 142 amended by No. 26 of 2008 s. 7.]

Division 5 — Proposals about arrangements for child

143.CEO to provide Court with proposal for child

(1)In this section —

proposal means a document that outlines the proposed arrangements for —

(a)the supervision of the wellbeing of the child if a protection order (supervision) is made or extended in respect of the child; or

(b)the wellbeing of the child if a protection order (time‑limited) or protection order (until 18) is made or extended in respect of the child.

(2)If —

(a)the CEO makes a protection application in respect of a child; and

(b)the Court finds that the child is in need of protection,

the CEO must, if the CEO has not already done so, provide the Court with a proposal for the child as soon as practicable after the finding referred to in paragraph (b).

(3)If the CEO makes —

(a)an application under section 49 for the extension of a protection order (supervision); or

(b)an application under section 56 for the extension of a protection order (time‑limited); or

(c)an application under section 68 for the replacement of a protection order by another protection order (other than a protection order (special guardianship)),

the CEO must provide the Court with a proposal for the child when the application is made.

(4)For the purposes of subsection (3)(b) the proposal is to include plans for securing long‑term stability, security and safety in the child’s relationships and living arrangements.

(5)If —

(a)an application is made under section 67(1) for the revocation of a protection order; and

(b)the Court is considering making another protection order (other than a protection order (special guardianship)) in respect of the child under section 67(2)(c),

the Court may request the CEO to provide it with a proposal for the child.

(6)The CEO must comply with a request under subsection (5) as soon as practicable after it is made.

(7)The CEO must give a copy of any proposal provided to the Court under this section to the other parties.

[Section 143 amended by No. 49 of 2010 s. 35.]

144.Court to consider proposal

(1)Before making a protection order in respect of a child or extending a protection order (supervision) or protection order (time‑limited) in respect of a child the Court must first consider any proposal for the child provided under section 143.

(2)In considering a proposal that includes plans referred to in section 143(4) the Court must have regard to the likelihood of those plans being achieved.

Division 6 — Procedural matters

145.Conduct of protection proceedings generally

(1)Protection proceedings are to be conducted with as little formality and legal technicality as the circumstances of the case permit.

(2)Without limiting subsection (1), if the child is present in court, protection proceedings are to be conducted in a way that is sensitive to the child’s level of understanding.

(3)Protection proceedings are to be concluded as expeditiously as possible in order to minimise the effect of the proceedings on the child and the child’s family.

146.Court not bound by rules of evidence

(1)In this section —

representation includes an express or implied representation, whether oral or in writing, and a representation inferred from conduct.

(2)In protection proceedings the Court is not bound by the rules of evidence, but may inform itself on any matter in any manner it considers appropriate.

(3)Without limiting subsection (2), evidence of a representation about a matter that is relevant to the protection proceedings is admissible despite the rule against hearsay.

(4)The Court may give such weight as it thinks fit to evidence admitted under subsection (3).

147.Parties to protection proceedings

In protection proceedings each of the following people is a party to the proceedings —

(a)the child;

(b)each parent of the child;

(c)the CEO;

(d)if the proceedings relate to a protection order (special guardianship) —

(i)the person or persons to whom parental responsibility for the child is proposed to be given under the order; or

(ii)the person or persons given parental responsibility for the child under the order,

as the case may be;

(e)any other person considered by the Court to have a direct and significant interest in the wellbeing of the child.

[Section 147 amended by No. 49 of 2010 s. 35.]

148.Legal representation of child

(1)In this section —

legal practitioner means an Australian legal practitioner within the meaning of that term in the Legal Profession Act 2008 section 3.

(2)If, in protection proceedings, it appears to the Court that the child ought to have separate legal representation, the Court may order that the child be separately represented by a legal practitioner.

(3)The Court may make an order under subsection (2) —

(a)on its own initiative; or

(b)on the application of —

(i)the child; or

(ii)an organisation concerned with the wellbeing of children; or

(iii)any other person.

(4)A legal practitioner who represents a child in protection proceedings must act on the instructions of the child if the child —

(a)has sufficient maturity and understanding to give instructions; and

(b)wishes to give instructions,

and in any other case must act in the best interests of the child.

(5)Any question as to whether a child has sufficient maturity and understanding to give instructions is to be determined by the Court.

[Section 148 amended by No. 21 of 2008 s. 642.]

149.Presence of child in court

(1)In protection proceedings the child may be present in court if the child so wishes.

(2)Subsection (1) is subject to any order made in respect of the child under —

(a)the Children’s Court of Western Australia Act 1988 section 31; or

(b)the Evidence Act 1906 section 106K.

(3)The CEO must ensure that the child —

(a)is made aware of the child’s right to be present in court under subsection (1); and

(b)is provided with any support services that the CEO considers appropriate to enable the child to participate in the proceedings.

150.Evidence of child

(1)In this section —

child includes a child who is not the subject of the protection proceedings.

(2)In protection proceedings a child may only be compelled to give evidence or be cross‑examined with the leave of the Court.

(3)The Court must not grant leave for the purposes of subsection (2) unless the Court is satisfied that the child is unlikely —

(a)to suffer emotional trauma as a result of giving evidence or being cross‑examined; or

(b)to be so intimidated or distressed as to be unable —

(i)to give evidence or be cross‑examined; or

(ii)to give evidence or be cross‑examined satisfactorily.

151.Standard of proof

The standard of proof in protection proceedings is proof on the balance of probabilities.

152.Intervention by Attorney General

(1)The Attorney General may intervene in protection proceedings.

(2)If the Attorney General intervenes in protection proceedings, the Attorney General is to be treated as a party with all the rights, duties, and liabilities of a party.

153.Court to facilitate party’s participation in proceedings

(1)In protection proceedings the Court must, as far as is practicable, ensure that each party understands the nature, purpose and legal implications of the proceedings and of any order or decision of the Court.

(2)If the Court is satisfied that a party —

(a)has difficulty understanding or communicating in English; or

(b)has a disability,

that prevents or restricts the party’s understanding of, or participation in, protection proceedings, the Court must take reasonable steps to ensure that the services of an interpreter or other appropriate person are made available to the party during the proceedings to facilitate the party’s understanding of, or participation in, the proceedings.

(3)Nothing in this section is to be taken to affect the operation of the Children’s Court of Western Australia Act 1988 section 34(1).

154.Court may dispense with requirement for service

The Court may make an order dispensing with a requirement in this Part for a party to give a document to another person if the Court is satisfied, on the application of the party, that, after reasonable inquiries, the other person cannot be found.

155.Frivolous or vexatious proceedings

(1)At any time in the course of protection proceedings the Court may, if it is satisfied that the proceedings are frivolous or vexatious —

(a)dismiss the proceedings; and

(b)make any order as to costs that it considers appropriate; and

(c)on the application of a party, order that the person who instituted the proceedings cannot, without the leave of the Court, institute protection proceedings of the kind or kinds specified in the order.

(2)An order made under subsection (1)(c) has effect despite any other provision of this Part.

(3)The Court may vary or discharge an order made under subsection (1)(c).

Part 6Transfer of child protection orders and proceedings

Division 1Introductory matters

156.Purpose of Part

The purpose of this Part is to provide for the transfer of child protection orders and proceedings between this State and another State —

(a)so that children who are in need of protection may be protected despite moving from one jurisdiction to another; and

(b)so as to facilitate the timely and expeditious determination of court proceedings relating to the protection of a child.

157.Terms used

(1)In this Part, unless the contrary intention appears —

child protection order, in relation to a child, means a final order made under a child welfare law in respect of the child that gives —

(a)a Minister of the Crown in right of a State; or

(b)a government department or statutory authority; or

(c)a person who is the chief executive officer (however described) of a government department or statutory authority or otherwise holds an office or position in, or is employed in, a government department or statutory authority; or

(d)an organisation or the chief executive officer (however described) of an organisation,

responsibility in relation to the guardianship, custody or supervision of the child, however that responsibility is described;

child protection proceeding means a proceeding brought in a court under a child welfare law for —

(a)the making of a finding that a child is in need of protection or any other finding (however described) the making of which is a prerequisite under the child welfare law to the exercise by the court of a power to make a child protection order; or

(b)the making of a child protection order or an interim order or for the variation or revocation, or the extension of the period, of such an order;

child welfare law means —

(a)Part 4; or

(b)a law of another State that, under an order in force under subsection (2), is declared to be a child welfare law for the purposes of this Part; or

(c)a law of another State that substantially corresponds to Part 4;

Children’s Court means —

(a)in relation to this State, the Court; and

(b)in relation to another State, the court with jurisdiction to hear and determine a child protection proceeding at first instance;

home order means —

(a)a protection order; or

(b)a child protection order taken, by operation of section 178(1), to be a protection order;

interim order means —

(a)an order made under section 173(1); or

(b)an equivalent order made under an interstate law;

interstate law means —

(a)a law of another State that, under an order in force under subsection (3), is declared to be an interstate law for the purposes of this Part; or

(b)a law of another State that substantially corresponds to this Part;

interstate officer, in relation to another State, means —

(a)the person holding the office or position to which there is given by or under the child welfare law of that State principal responsibility for the protection of children in that State; or

(b)the holder of an office or position that, under an order in force under subsection (4), is declared to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Part;

parent has the meaning given to that term in section 42;

participating State means a State in which an interstate law is in force;

registrar of the Court means —

(a)in relation to an application made to the Court, the registrar of the Court at the place where the application was made; and

(b)in relation to a document filed in the Court, the registrar of the Court at the place where the document was filed; and

(c)in relation to the revocation by the Court of the registration of an order, the registrar of the Court at the place where the registration was revoked;

sending State means the State from which a child protection order or proceeding is transferred under this Part or an interstate law;

State means —

(a)a State or a Territory; or

(b) New Zealand ;

working day means —

(a)in relation to a court, a day on which the offices of the court are open; and

(b)in relation to the CEO, a day on which the principal office of the Department is open.

(2)The Minister may, by order published in the Gazette, declare a law of another State to be a child welfare law for the purposes of this Part if satisfied that the law substantially corresponds to Part 4.

(3)The Minister may, by order published in the Gazette, declare a law of another State to be an interstate law for the purposes of this Part if satisfied that the law substantially corresponds to this Part.

(4)The Minister may, by order published in the Gazette, declare an office or position in another State to be an office or position the holder of which is the interstate officer in relation to that State for the purposes of this Part.

(5)The Minister may, by order published in the Gazette, amend or revoke an order under subsection (2), (3) or (4).

Division 2Transfer of child protection orders

Subdivision 1 — Administrative transfers

158.When CEO may transfer home order

(1)The CEO may transfer a home order to a participating State if —

(a)in his or her opinion a child protection order to the same or a similar effect as the home order could be made under the child welfare law of that State; and

(b)the home order is not subject to an appeal and the time for instituting an appeal has expired; and

(c)the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the order to be transferred (the proposed interstate order); and

(d)any person whose consent to the transfer is required under section 159 has so consented.

(2)The CEO may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State.

(3)In determining whether a child protection order to the same or a similar effect as the home order could be made under the child welfare law of a participating State, the CEO must not take into account the period for which it is possible to make such an order in that State.

(4)The CEO must determine, and specify in the proposed interstate order, the period for which it is to remain in force.

(5)The period must be the lesser of —

(a)the period for which the home order would have remained in force if it were not transferred to the relevant participating State; and

(b)the maximum period for which a child protection order of that type made in the relevant participating State could remain in force.

159.Persons whose consent is required under s. 158(1)(d)

(1)For the purposes of section 158(1)(d), if the home order is a protection order (supervision), consent to the transfer is required —

(a)from the child unless, in the opinion of the CEO, the child does not have sufficient maturity and understanding to give consent; and

(b)subject to subsection (2), from the child’s parents.

(2)Consent to the transfer is not required —

(a)from a parent of the child if, after reasonable inquiries, that parent cannot be found; or

(b)from a parent of the child if, in the opinion of the CEO, that parent is unable to give consent; or

(c)from a parent of the child who is residing in, or is intending to reside in, the relevant participating State.

160.CEO to have regard to certain matters

In determining whether to transfer a home order to a participating State, the CEO must have regard to —

(a)whether the CEO or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and

(b)the desirability of a child protection order being an order under the child welfare law of the State where the child resides.

161.Notification of decision to transfer

(1)If the CEO has decided to transfer a home order to a participating State, the CEO must cause notice of the decision to be given to —

(a)the child unless the CEO considers that the child does not have sufficient maturity to understand the transfer and its consequences; and

(b)the child’s parents; and

(c)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child,

as soon as practicable but in any event no later than 3 working days after the decision was made.

(2)A notice under subsection (1) must —

(a)state the date of the decision; and

(b)state that a person who wishes to apply to the Supreme Court for judicial review of the decision must institute the proceeding, and give written notice of it to the CEO, within 21 working days after the date of the decision; and

(c)state that a person who wishes to apply to the State Administrative Tribunal for a review of the decision must institute the proceeding within 21 working days after the date of the decision.

(3)Notice is not required to be given to a person under subsection (1) if it cannot be given after all reasonable efforts.

162.Judicial review of CEO’s decision

(1)A proceeding in the Supreme Court for judicial review of a decision of the CEO to transfer a home order to a participating State must be instituted, and written notice of it must be given to the CEO, within 21 working days after the date of the decision.

(2)The Supreme Court cannot extend the time fixed by subsection (1).

(3)Subject to subsections (1) and (2), a proceeding referred to in subsection (1) must be brought in accordance with the Supreme Court’s rules of court.

(4)The institution of a proceeding referred to in subsection (1) and the giving of written notice of it to the CEO stays the operation of the decision pending the determination of the proceeding.

163.Review by State Administrative Tribunal

(1)A person who is aggrieved by a decision of the CEO to transfer a home order to a participating State may apply to the State Administrative Tribunal for a review of the decision within 21 working days after the date of the decision.

(2)The State Administrative Tribunal cannot extend the time fixed by subsection (1).

(3)The institution of a proceeding for the review of a decision under subsection (1) stays the operation of the decision pending the determination of the proceeding.

Subdivision 2 — Judicial transfers

164.When Court may transfer home order

The Court may make an order transferring a home order to a participating State if —

(a)an application for the making of the order is made by the CEO; and

(b)the home order is not subject to an appeal and the time for instituting an appeal has expired; and

(c)the relevant interstate officer has consented in writing to the transfer and to the proposed terms of the order to be transferred.

165.Service of application under s. 164

The CEO must as soon as possible after making an application for an order under section 164 cause a copy of it to be given to —

(a)any person who was a party to the proceedings in which the home order to be transferred was made; and

(b)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

166.Court to have regard to certain matters

In determining whether to make an order under section 164 the Court must have regard to —

(a)whether the CEO or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and

(b)the desirability of a child protection order being an order under the child welfare law of the State where the child resides.

167. Proposed interstate orders, terms of

(1)If the Court determines to transfer a home order to a participating State, the proposed terms of the order to be transferred (the proposed interstate order) must be terms that could be the terms of a child protection order made under the child welfare law of the participating State and that the Court believes to be —

(a)to the same or a similar effect as the terms of the home order; or

(b)otherwise in the best interests of the child.

(2)The Court may include in the proposed interstate order any conditions that could be included in a child protection order of that type made in the relevant participating State.

(3)In determining whether an order to the same or a similar effect as the home order could be made under the child welfare law of a participating State, the Court must not take into account the period for which it is possible to make such an order in that State.

(4)The Court must determine, and specify in the proposed interstate order, the period for which it is to remain in force.

(5)The period must not be longer than the maximum period for which a child protection order of that type made in the relevant participating State could remain in force.

168.Court not to make s. 164 order without report from CEO

The Court must not make an order under section 164 unless it has received and considered a report from the CEO regarding the child.

169.Appeals

(1)A party to an application for an order under section 164 may appeal to the Supreme Court, on a question of law, from a final order made in that proceeding transferring, or refusing to transfer, a home order to a participating State.

(2)An appeal under subsection (1) —

(a)must be instituted, and (except where instituted by the CEO) written notice of it must be given to the CEO, within 10 working days after the day on which the order appealed from was made; and

(b)operates as a stay of the order.

(3)The Supreme Court cannot extend the time fixed by subsection (2)(a).

(4)Subject to subsections (2) and (3), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.

(5)The Supreme Court must hear and determine the appeal as expeditiously as possible.

(6)Pending the determination of the appeal, the Supreme Court may make any interim order that the Children’s Court can make under section 133.

(7)On determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for rehearing to the Court with or without any direction in law.

(8)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for rehearing to the Court, may be enforced as an order of the Supreme Court.

Division 3Transfer of child protection proceedings

170.When Court may transfer child protection proceeding

(1)The Court may make an order transferring a child protection proceeding pending in the Court to the Children’s Court in a participating State if —

(a)an application for the making of the order is made by the CEO; and

(b)the relevant interstate officer has consented in writing to the transfer.

(2)The proceeding is discontinued in the Court on the registration in the Children’s Court in the participating State in accordance with the interstate law of an order referred to in subsection (1).

171.Service of application under s. 170

The CEO must, as soon as possible after making an application for an order under section 170(1), cause a copy of it to be given to —

(a)each party to the child protection proceeding the subject of the application; and

(b)any other person considered by the CEO to have a direct and significant interest in the wellbeing of the child.

172.Court to have regard to certain matters

In determining whether to make an order under section 170(1) the Court must have regard to —

(a)whether any other proceedings relating to the child are pending, or have previously been heard and determined, under the child welfare law in the participating State; and

(b)the place where any of the matters giving rise to the proceeding in the Court arose; and

(c)the place of residence, or likely place of residence, of the child, the child’s parents and any other people who are significant to the child; and

(d)whether the CEO or an interstate officer is in the better position to exercise powers and responsibilities under a child protection order relating to the child; and

(e)the desirability of a child protection order being an order under the child welfare law of the State where the child resides; and

(f)any information given to the Court under subsection (2).

(2)If the CEO is aware that —

(a)a sentence or order imposed under the Sentencing Act 1