Children’s Guardian Act 2019 No 25

The functions conferred or imposed by this Act and the regulations may be exercised in relation to children—

(a)  who ordinarily live in New South Wales, or

(b)  who do not ordinarily live in New South Wales but who are present in New South Wales, or

(c)  who are—

(i)  for Part 4—subject to an event or circumstance, whether occurring in New South Wales or elsewhere, that is committed by a person who is an employee of a relevant entity (within the meaning of Part 4) and that gives rise to a report (within the meaning of Part 4), or

(ii)  otherwise—subject to an event or circumstance occurring in New South Wales that gives rise to a report.

(1)  The Dictionary in Schedule 6 defines certain terms used in this Act.

Note—

The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act.

(2)  Notes and examples included in this Act do not form part of this Act.

(1)  In this Act, a reference to commencement for this Act or a provision of this Act is a reference to the time this Act or provision comes into operation.

(2)  In a provision of this Act, a reference to the commencement without indicating a particular Act or provision is a reference to the commencement of the provision in which the reference occurs.

The objects of this Part are for the Children’s Guardian to protect children from harm by—

(a)  adopting the Child Safe Standards as the primary framework that guides child safe practice, and

(b)  implementing regulatory approaches that—

(i)  improve systems for the prevention, identification, response to and reporting of child abuse in child safe organisations through the implementation of the Child Safe Standards, and

(ii)  assist child safe organisations to implement the Child Safe Standards by raising awareness and providing guidance, training and education, and

(iii)  monitor and report on the compliance of child safe organisations with the Child Safe Standards, and

(iv)  enforce compliance with the Child Safe Standards, and

(v)  provide for the investigation of complaints about a child safe organisation’s—

(A)  implementation of the Child Safe Standards, or

(B)  compliance with the Child Safe Standards, or

(C)  compliance with recommendations contained in a monitoring assessment report, and

(vi)  establish child safe action plans with prescribed agencies, and

(vii)  provide for the ongoing exchange of information about risks to child safety in organisations between government agencies, both in New South Wales and in other States and Territories, with child safety responsibilities.

s 8A: Ins 2021 No 30, Sch 1[3].

(1)  Implementation of the Child Safe Standards by child safe organisations is to be consistent with Royal Commission recommendations.

(2)  Where a Child Safe Standard can be implemented in more than 1 way, implementation that most closely reflects the Royal Commission recommendations is to be preferred.

s 8AA: Ins 2021 No 30, Sch 1[3].

(1)  The Minister may issue guidelines to the Children’s Guardian about the way the Children’s Guardian is to—

(a)  oversee the implementation of the Child Safe Standards by child safe organisations,

(b)  enforce the Child Safe Standards within child safe organisations,

(c)  establish child safe action plans with prescribed agencies.

(2)  Despite section 128(3), the Children’s Guardian must, when exercising functions concerning the Child Safe Standards, act in a way that is consistent with guidelines issued by the Minister under subsection (1).

s 8AB: Ins 2021 No 30, Sch 1[3].

(1)  The Committee on Children and Young People has the following functions under this Part—

(a)  to monitor and review the functions of the Children’s Guardian in—

(i)  overseeing the implementation of the Child Safe Standards by child safe organisations,

(ii)  the enforcement of the Child Safe Standards within child safe organisations,

(iii)  establishing child safe action plans with prescribed agencies,

(b)  to review the activities of the Children’s Guardian for consistency with the Royal Commission recommendations,

(c)  to review guidelines issued by the Minister under section 8AB(1) for consistency with the Royal Commission recommendations,

(d)  to report to both Houses of Parliament, with such comments as it thinks fit, on any matter which the Committee considers should be brought to the attention of Parliament relating to the following—

(i)  the exercise of the Children’s Guardian’s functions specified in paragraphs (a) and (b),

(ii)  guidelines issued by the Minister under section 8AB(1).

(2)  In this section—

Committee on Children and Young People means the Parliamentary Joint Committee constituted under section 36(1) of the Advocate for Children and Young People Act 2014.

s 8AC: Ins 2021 No 30, Sch 1[3].

In this Part—

child safe action plan—see section 8F.

monitoring assessment report means a report issued by the Children’s Guardian under section 8W.

prescribed agency—see section 8G.

related body, for a prescribed agency—see section 8H.

religious body has the same meaning as in section 15A.

Royal Commission recommendations means the Final Report Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.

s 8B: Ins 2021 No 30, Sch 1[3].

The Child Safe Standards are—

1.  Child safety is embedded in organisational leadership, governance and culture.

2.  Children participate in decisions affecting them and are taken seriously.

3.  Families and communities are informed and involved.

4.  Equity is upheld, and diverse needs are taken into account.

5.  People working with children are suitable and supported.

6.  Processes to respond to complaints of child abuse are child focused.

7.  Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training.

8.  Physical and online environments minimise the opportunity for abuse to occur.

9.  Implementation of the Child Safe Standards is continuously reviewed and improved.

10.  Policies and procedures document how the organisation is child safe.

s 8C: Ins 2021 No 30, Sch 1[3].

(1)  The head of a child safe organisation must ensure the organisation implements the Child Safe Standards through systems, policies and processes which may include, but are not limited to, the following—

(a)  a statement of the organisation’s commitment to child safety,

(b)  a child safe policy,

(c)  a code of conduct applying to the following—

(i)  employees,

(ii)  management, however described,

(iii)  contractors,

(iv)  volunteers,

(d)  a complaint management policy and procedure,

(e)  a human resources policy,

(f)  a risk management plan.

(2)  The head of a child safe organisation must ensure the organisation implements a reportable conduct policy that addresses the matters in section 54(2).

(3)  The head of a child safe organisation must ensure the systems, policies and processes implemented by the organisation are continuously reviewed and updated to reflect—

(a)  the Child Safe Standards, and

(b)  recommendations made to the organisation by the Children’s Guardian in—

(i)  a monitoring assessment report under section 8W, or

(ii)  an investigation report under section 8Z, and

(c)  enforcement measures taken under Part 9A against the organisation by the Children’s Guardian.

s 8D: Ins 2021 No 30, Sch 1[3].

(1)  The regulations may prescribe codes of practice for the purposes of ensuring entities comply with the Child Safe Standards.

(2)  A code of practice may apply only to the following entities—

(a)  a designated agency,

(b)  an adoption service provider,

(c)  an entity providing specialised substitute residential care,

(d)  an entity prescribed by the regulations.

(3)  A code of practice must specify the entities to which it applies.

(4)  A code of practice for entities providing specialised substitute residential care must require each entity to complete, within the time specified in the code of practice, a self-assessment of the entity’s compliance with the Child Safe Standards.

(5)  An entity that fails, without reasonable excuse, to complete the self-assessment within the time specified in the code of practice commits an offence.

Maximum penalty—10 penalty units.

(6)  A code of practice may include the following—

(a)  the steps that must be taken to implement the Child Safe Standards,

(b)  the outcomes that will indicate compliance with the Child Safe Standards,

(c)  other matters relevant to compliance with the Child Safe Standards.

(7)  A code of practice that applies to a designated agency or an adoption service provider may also include steps that must be taken to obtain and maintain accreditation under this Act.

(8)  An entity must comply with a code of practice that applies to the entity.

Note—

This provision makes the code of practice a mandatory prescriptive requirement for compliance with the Child Safe Standards.

(9)  The failure by an entity to comply with a code of practice is grounds for the Children’s Guardian to—

(a)  conduct an investigation under Division 6, and

(b)  following the investigation, if the Children’s Guardian considers it appropriate—issue a compliance notice to the entity under Part 9A.

s 8DA: Ins 2022 No 33, Sch 1[1].

(1)  The Children’s Guardian may, at any time by written notice, require the head of a child safe organisation to give the Children’s Guardian, within the reasonable time stated in the notice but not less than 7 days, information about the organisation’s systems, policies and processes under section 8D.

(2)  If the organisation does not, without reasonable excuse, give the Children’s Guardian the information required under subsection (1), the Children’s Guardian may—

(a)  commence an investigation under Division 6, and

(b)  publish the following on the Office of the Children’s Guardian’s website—

(i)  the name of the organisation,

(ii)  that the organisation has failed to provide the information required by the Children’s Guardian under this section.

s 8E: Ins 2021 No 30, Sch 1[3].

A child safe action plan is a plan that contains the strategies a prescribed agency will take, both in the services it provides and with related bodies, to—

(a)  build awareness in the community about the importance of child safety in child safe organisations, and

(b)  build the capability of child safe organisations to implement the Child Safe Standards, and

(c)  improve the safety of children by implementing the Child Safe Standards.

s 8F: Ins 2021 No 30, Sch 1[3].

Prescribed agency means each of the following—

(a)  the Department of Communities and Justice,

(b)  the Office of Sport within the Department of Communities and Justice,

(c)  the Department of Education,

(d)  the NSW Education Standards Authority,

(e)  the Ministry of Health,

(f)  the Department of Planning, Industry and Environment, limited to functions undertaken by the Office of Local Government,

(g)  the Inspector of Custodial Services,

(h)  a NSW government agency prescribed by the regulations for the purposes of this section.

s 8G: Ins 2021 No 30, Sch 1[3]. Am 2022 No 26, Sch 2.6[1].

Related body, for a prescribed agency, means a child safe organisation the prescribed agency funds or regulates.

s 8H: Ins 2021 No 30, Sch 1[3].

(1)  A prescribed agency must develop and implement a child safe action plan within—

(a)  12 months of becoming a prescribed agency, or

(b)  a longer period approved in writing by the Children’s Guardian.

(2)  A child safe action plan must cover the full scope of the agency’s child related operations unless—

(a)  the Children’s Guardian gives written approval for the agency to develop and implement an additional plan for a specified area of operations, and

(b)  the additional plan addresses only the parts of the agency’s operations specified in the approval.

s 8I: Ins 2021 No 30, Sch 1[3].

In developing its child safe action plan, a prescribed agency must—

(a)  consult with the Children’s Guardian, and

(b)  consult with related bodies and any other entity or individual who, in the agency’s opinion, is likely to be directly affected by the plan, and

(c)  if the agency or related bodies provide services to Aboriginal children—consult with 1 or more Aboriginal controlled entities of a class prescribed by the regulations for this section.

s 8J: Ins 2021 No 30, Sch 1[3].

(1)  A prescribed agency must submit its child safe action plan to the Children’s Guardian for review and approval.

(2)  Following its review of an agency’s plan, the Children’s Guardian must—

(a)  approve the plan, or

(b)  provide comments to the agency recommending amendments to the plan that the Children’s Guardian considers necessary before it can be approved.

(3)  Following its review of an agency’s plan, the Children’s Guardian may report publicly, whether by its annual report or another report, on the plan and its implementation.

s 8K: Ins 2021 No 30, Sch 1[3].

(1)  Following approval of a prescribed agency’s child safe action plan, the agency must make the plan publicly available—

(a)  on the agency’s website, and

(b)  in another way prescribed by the regulations.

(2)  The Children’s Guardian may, on the Office of the Children’s Guardian’s website, provide a link to an agency’s child safe action plan.

s 8L: Ins 2021 No 30, Sch 1[3].

(1)  If required to do so by written notice from the Children’s Guardian, a prescribed agency must provide a progress report on the agency’s implementation of its child safe action plan.

(2)  An agency’s report is to include information that demonstrates how the agency is working with related bodies to—

(a)  build awareness in the community about the importance of child safety in child safe organisations, and

(b)  build the capability of related bodies to implement the Child Safe Standards, and

(c)  improve the safety of children by implementing the Child Safe Standards by related bodies.

(3)  A prescribed agency must provide its report to the Children’s Guardian within—

(a)  90 days of receiving the written notice, or

(b)  a longer period approved in writing by the Children’s Guardian.

s 8M: Ins 2021 No 30, Sch 1[3].

A prescribed agency must include in its annual reporting information prepared under the Government Sector Finance Act 2018—

(a)  a link to the agency’s child safe action plan, and

(b)  the agency’s assessment of the effectiveness of the plan in promoting and supporting the adoption and implementation of the Child Safe Standards by related bodies.

s 8N: Ins 2021 No 30, Sch 1[3]. Am 2023 No 35, Sch 3.1.

(1)  A prescribed agency must review and remake its child safe action plan at least every 4 years.

(2)  This Division applies to a remade plan in the same way as it applies to an original plan.

s 8O: Ins 2021 No 30, Sch 1[3].

This Division deals with the Children’s Guardian’s responsibility to work collaboratively with child safe organisations, government agencies and the broader community to—

(a)  raise awareness about child safety, and

(b)  build within child safe organisations both knowledge of the Child Safe Standards and the skills to implement them, and

(c)  promote the implementation of the Child Safe Standards by child safe organisations.

s 8P: Ins 2021 No 30, Sch 1[3].

(1)  The Children’s Guardian may develop guidelines to—

(a)  assist child safe organisations to implement the Child Safe Standards, and

(b)  assist children, their families and other members of the community to raise concerns and make complaints about a child safe organisation, and

(c)  provide guidance on another matter that the Children’s Guardian identifies as appropriate.

(2)  A guideline developed under this section may include templates that can be used by child safe organisations in developing systems, policies and processes that implement the Child Safe Standards.

(3)  A guideline developed under this section must be published on the Office of the Children’s Guardian’s website.

s 8Q: Ins 2021 No 30, Sch 1[3].

(1)  The Children’s Guardian may develop and make publicly available—

(a)  guidelines, including templates, to assist prescribed agencies to develop child safe action plans, and

(b)  assessment criteria for child safe action plans.

(2)  A guideline developed under this section must be published on the Office of the Children’s Guardian’s website.

s 8R: Ins 2021 No 30, Sch 1[3].

(1)  The Children’s Guardian may provide training on—

(a)  matters related to the implementation of the Child Safe Standards, and

(b)  other matters reasonably related to child safety and the functions of the Children’s Guardian.

(2)  The Children’s Guardian may charge fees for training activities to recover the reasonable costs incurred in providing the training.

s 8S: Ins 2021 No 30, Sch 1[3].

The Children’s Guardian may develop and distribute other resources to promote the Child Safe Standards that the Children’s Guardian considers appropriate.

s 8T: Ins 2021 No 30, Sch 1[3].

The Children’s Guardian may monitor the operation of a child safe organisation to ensure the organisation is implementing the Child Safe Standards.

s 8U: Ins 2021 No 30, Sch 1[3].

(1)  In monitoring a child safe organisation’s implementation of the Child Safe Standards, the Children’s Guardian may do the following—

(a)  review the organisation’s systems, processes and policies,

(b)  request the head of the organisation to answer questions and provide specified information,

(c)  review information held by the Children’s Guardian about the organisation and its employees,

(d)  with the consent of the head of the organisation, have an authorised person inspect the organisation’s premises,

(e)  direct the head of the organisation to complete a self-assessment of the organisation’s compliance with the Child Safe Standards,

(f)  a thing prescribed by the regulations for the purposes of this section.

(2)  If the Children’s Guardian directs the head of a child safe organisation to complete a self-assessment under subsection (1)(e), the head of the organisation must comply with the direction.

Maximum penalty—5 penalty units.

(3)  A direction under subsection (1)(e) must—

(a)  be in writing, and

(b)  specify the form of the self-assessment, and

(c)  specify the date, not less than 14 days after the date of the direction, by which the self-assessment must be completed and returned to the Children’s Guardian.

s 8V: Ins 2021 No 30, Sch 1[3].

(1)  The Children’s Guardian may, as part of its monitoring activities under section 8V, issue a monitoring assessment report to provide guidance and make recommendations to a child safe organisation.

(2)  If the Children’s Guardian makes recommendations to an organisation in a monitoring assessment report, the organisation must respond to the recommendations within the period specified by the Children’s Guardian, being a period of not less than 28 days after the issue of the report.

s 8W: Ins 2021 No 30, Sch 1[3].

(1)  The Children’s Guardian may conduct an investigation into a child safe organisation’s implementation of the Child Safe Standards.

(2)  Without limiting subsection (1), the Children’s Guardian may conduct an investigation—

(a)  after receiving a complaint, however made or described, about the organisation, or

(b)  if the organisation fails to respond to a recommendation made by the Children’s Guardian in a monitoring assessment report or the Children’s Guardian is otherwise not satisfied with the way the organisation responds to a recommendation, or

(c)  if for any other reason the Children’s Guardian is concerned the organisation is not implementing the Child Safe Standards.

s 8X: Ins 2021 No 30, Sch 1[3].

(1)  Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of conducting an investigation under this Division.

(2)  Without limiting the powers of an authorised person, the Children’s Guardian may, when conducting an investigation, do the following—

(a)  review the organisation’s records, systems, processes and policies,

(b)  require the head of the organisation to answer questions and provide specified information,

(c)  review information held by the Children’s Guardian about the organisation and its employees,

(d)  have an authorised person inspect the organisation’s premises,

(e)  direct the head of the organisation to complete a self-assessment of the organisation’s compliance with the Child Safe Standards,

(f)  a thing prescribed by the regulations for the purposes of this section.

(3)  For the purposes of an investigation under this Division, the Children’s Guardian may conduct an inquiry.

(4)  Schedule 3 provides for the Children’s Guardian’s powers to make or hold an inquiry.

(5)  An inquiry under this Division must be carried out in the absence of the public.

s 8Y: Ins 2021 No 30, Sch 1[3].

(1)  At the end of an investigation under this Division, the Children’s Guardian must prepare a report that includes—

(a)  findings relating to the way the relevant child safe organisation implements the Child Safe Standards, and

(b)  the Children’s Guardian’s recommendations, if any, for improvement to the way the organisation implements the Child Safe Standards.

(2)  If, as a result of an investigation, the Children’s Guardian decides to take enforcement measures under Part 9A, the report must include—

(a)  the decision, and

(b)  the reasons for the decision, and

(c)  the enforcement measures to be taken.

(3)  If the Children’s Guardian makes recommendations to an organisation, the organisation must respond to the recommendations within the period, not less than 28 days after the investigation report is given to the organisation, specified by the Children’s Guardian.

s 8Z: Ins 2021 No 30, Sch 1[3].

(1)  A child must not remain in specialised substitute residential care for more than a total of 90 days in a period of 12 months unless the care is provided or supervised by a designated agency.

(2)  A child may remain in specialised substitute residential care for more than a total of 180 days in a period of 12 months only if the designated agency providing or supervising the care, or the Children’s Guardian, has ensured there is a plan that addresses the child’s needs under the arrangement.

(3)  A child who remains in specialised substitute residential care in contravention of subsection (1) or (2) is taken to be at risk of significant harm for the purposes of the Children and Young Persons (Care and Protection) Act 1998, Chapter 3, Parts 2 and 3.

(4)  In deciding whether the contravention is a significant contravention, the Children’s Guardian must have regard to any relevant guidelines issued by the Secretary under section 175.

s 8ZA: Ins 2022 No 33, Sch 1[2].

If a child dies while in specialised substitute residential care, the principal officer of the entity providing the specialised substitute residential care must immediately give notice of the death to the following persons—

(a)  the parents of the child, if the parents can reasonably be located,

(b)  the Children’s Guardian,

(c)  the Coroner.

s 8ZB: Ins 2022 No 33, Sch 1[2].

(1)  In this Act, the principal officer of an entity providing specialised substitute residential care means the person who has the overall supervision of the entity’s arrangements for providing specialised substitute residential care.

(2)  Anything done by, or with the approval of, the principal officer of an entity providing specialised substitute residential care in relation to specialised substitute residential care is, for this Act and the regulations, taken to be done by the entity.

(3)  Nothing in this section affects the personal liability of the principal officer.

s 8ZC: Ins 2022 No 33, Sch 1[2].

Regulations may be made about specialised substitute residential care.

s 8ZD: Ins 2022 No 33, Sch 1[2].

The objects of this Part are for the Children’s Guardian to protect children from harm by—

(a)  administering a scheme to report and notify a reportable allegation or a conviction considered to be a reportable conviction to the head of a relevant entity and the Children’s Guardian, and

(b)  providing oversight and guidance on an investigation undertaken by the head of a relevant entity, and

(c)  conducting investigations and inquiries into reports about reportable allegations and convictions considered to be reportable convictions and the response to, and handling of, reports by relevant entities, and

(d)  ensuring appropriate action is taken by a relevant entity, and

(e)  monitoring a relevant entity’s systems for preventing, detecting and dealing with reportable conduct and reportable convictions, and

(f)  providing advice and education to relevant entities to assist relevant entities in detecting and dealing with reportable conduct and reportable convictions.

In this Part—

assault see section 25.

Children’s Guardian report see section 49.

complaint means—

(a)  a report given to the Children’s Guardian under section 27(2)(b) or (3)(b), or

(b)  a complaint made to the Children’s Guardian under section 28(1) or (2).

contractor includes—

(a)  a subcontractor, and

(b)  an employee of, or volunteer for, the contractor, and

(c)  an employee of, or volunteer for, a third party employer.

employee, of a relevant entity, see section 16.

employment includes engagement of a person as a volunteer or contractor taken to be an employee under this Part.

entity report see section 36(1).

finding of reportable conduct see section 26.

head, of a relevant entity, see section 17.

ill-treatment, of a child, see section 23.

investigation, of a matter, includes any preliminary or other inquiry into, or examination of, the matter, other than a preliminary inquiry under section 44.

investigator means a person conducting an investigation on behalf of the head of a relevant entity, including a delegate.

local government authority see section 15.

neglect, of a child, see section 24.

notification see section 29(2).

public authority see section 14.

relevant entity see section 12.

religious body see section 15A.

report means—

(a)  a report made to the head of a relevant entity under section 27(2)(a) or (3)(a), or

(b)  if the head of a relevant agency otherwise becomes aware of a matter under section 29(1)(b).

reportable allegation see section 18.

reportable conduct see section 20.

reportable conduct scheme see section 11.

reportable conviction see section 19.

responsible Minister means—

(a)  for a relevant entity that is a government sector agency or a person employed in a government sector agency—

(i)  the Minister responsible for the agency, or

(ii)  if there is more than one Minister responsible for the agency, the Minister who, in the opinion of the Children’s Guardian, is most nearly connected with the conduct of the agency, and

(b)  for a relevant entity that is a local government authority—the Minister administering the Local Government Act 1993, and

(c)  for a relevant entity, not referred to in paragraph (a) or (b), involved in the administration of an Act or part of an Act—the Minister administering the Act or the relevant part of the Act, and

(d)  for a Schedule 1 entity that is not referred to in paragraphs (a)–(c)—

(i)  the Minister whose portfolio has, in the opinion of the Children’s Guardian, sufficient funding or regulatory responsibility for the entity to warrant involvement on the Minister’s part in relation to the entity, or

(ii)  otherwise—the Minister who is, in the opinion of the Children’s Guardian, a Minister sufficiently concerned with the conduct of the entity, and

(e)  for a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013—the Premier, and

(f)  for any other relevant entity—the Minister who, in the opinion of the Children’s Guardian, is the most closely concerned with the conduct of the entity.

Schedule 1 entity see section 13.

sexual misconduct see section 22.

sexual offence see section 21.

third party employer means a person, other than a relevant entity, who engages another person to provide services to children on behalf of a relevant entity, including as a contractor.

s 10: Am 2019 No 25, Sch 5.10[1]; 2020 No 24, Sch 1.1[1] [2].

Reportable conduct scheme means the scheme established under this Part to investigate reportable allegations and make determinations in relation to reportable convictions.

Relevant entity means—

(a)  a Schedule 1 entity, or

(b)  a public authority, or

(c)  a religious body.

s 12: Am 2019 No 25, Sch 5.10[2].

Schedule 1 entity means—

(a)  an entity mentioned in Schedule 1, or

(b)  an authorised carer that is not employed by, or in, an entity mentioned in Schedule 1, or

(c)  an adult who, under section 10 of the Child Protection (Working with Children) Act 2012, is required to hold a working with children check clearance because the adult resides on the same property as an authorised carer for 3 weeks or more, or

(d)  an entity, or part of an entity, prescribed by the regulations for this definition.

Public authority means—

(a)  a government sector agency within the meaning of the Government Sector Employment Act 2013, or

(b)  a person specified in section 5(1)(a), (b) and (d)–(f) of the Government Sector Employment Act 2013, or

(c)  a local government authority, or

(d)  a statutory body representing the Crown, or

(e)  a statutory officer, or

(f)  a body, whether incorporated or unincorporated, established for a public purpose under the provisions of a legislative instrument, or

(g)  a State-owned corporation, or

(h)  a university established under an Act, or

(i)  an Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act 1983, or

(j)  an entity, or part of an entity, declared by the regulations to be a public authority for this definition.

Local government authority means a council, county council or joint organisation under the Local Government Act 1993.

Religious body means—

(a)  a body established for a religious purpose, and

(b)  an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.

s 15A: Ins 2019 No 25, Sch 5.10[3].

(1)  Employee, of a relevant entity, means the following—

(a)  for a Schedule 1 entity—

(i)  an individual employed by, or in, the Schedule 1 entity, or

(ii)  if the entity is an individual—the individual, or

(iii)  if an individual is engaged directly, or by a third party employer, as a volunteer to provide services to children—the volunteer, or

(iv)  if an individual is engaged directly, or by a third party employer, as a contractor and the contractor holds, or is required to hold, a working with children check clearance for the purpose of the engagement—the contractor, or

(v)  if an individual is the head of a third party employer contracted to provide services to children on behalf of a Schedule 1 entity and the individual holds, or is required to hold, a working with children check clearance—the individual,

(b)  for a public authority—

(i)  an individual employed by, or in, the public authority, or

(ii)  if the public authority is an individual—the individual, or

(iii)  if an individual is engaged directly, or by a third party employer, as a volunteer to provide services to children—the volunteer, or

(iv)  if an individual is engaged directly, or by a third party employer, as a contractor and the contractor holds, or is required to hold, a working with children check clearance for the purpose of the engagement—the contractor, or

(v)  if an individual is the head of a third party employer contracted to provide services to children on behalf of a public authority and the individual holds, or is required to hold, a working with children check clearance—the individual,

(c)  for a religious body—an individual who holds, or is required by the religious body to hold, a working with children check clearance for the purpose of engagement with the religious body.

Example for paragraph (b)(iv)—

a dance teacher is employed as a contractor by a dance school. The dance school leases the dance school premises from a local council and is conducting dance classes on behalf of the council. As the dance teacher teaches children, the dance teacher is required to hold a working with children check clearance. The dance teacher is taken to be an employee of the local council for the purposes of this Part.

(2)  For a public authority, a person is also an employee of the authority if—

(a)  the person exercises official functions or acts in a public official capacity in the service of the authority, or

(b)  the person is otherwise in the service of the Crown.

(3)  Also, for the purposes of this Part, an employee includes—

(a)  a visiting health practitioner if the visiting health practitioner holds, or is required to hold, a working with children check clearance for the purpose of appointment with the entity, and

(b)  a person employed under Part 2 of the Members of Parliament Staff Act 2013, and the person is taken to be an employee of a public authority.

(4)  If an employee is an employee of a Schedule 1 entity that is also a public authority, the provisions relating to the Schedule 1 entity apply to the employee for this Part.

(5)  In this section—

health care services means a service ordinarily provided by a health practitioner.

health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).

visiting health practitioner means a person who is appointed, employed, contracted or otherwise engaged by a Schedule 1 entity to provide health care services.

s 16: Am 2019 No 25, Sch 5.10[4]; 2020 No 24, Sch 1.1[3]–[6].

(1)  Head, of a relevant entity, means—

(a)  for an entity that is a Department—the Secretary of that Department or the Secretary’s delegate, or

(b)  if the regulations prescribe a person or a class of persons as the head of the entity—the prescribed person or a person belonging to the class of persons prescribed, or

(c)  otherwise—

(i)  the chief executive officer of the entity, however described, or

(ii)  if there is no chief executive officer, the principal officer of the entity, however described, or

(iii)  if there is no chief executive officer or principal officer, a person approved by the Children’s Guardian under section 66.

(2)  In relation to a person employed under Part 2 of the Members of Parliament Staff Act 2013 by a member of Parliament, the member of Parliament is taken to be a public authority and the head of the authority.

(1)  Reportable allegation, in relation to an employee of a Schedule 1 entity, means an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee’s employment with the Schedule 1 entity.

(2)  Reportable allegation, in relation to an employee of a public authority, means—

(a)  if the employee holds, or is required to hold, a working with children check clearance for the purpose of employment with the public authority—an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee’s employment, or

(b)  if the employee is not required to hold a working with children check clearance for the purpose of employment with the public authority—an allegation that the employee has engaged in conduct that may be reportable conduct, unless the conduct is alleged to have occurred outside the course of the employee’s employment with the public authority.

(2A)  Reportable allegation, in relation to an employee of a religious body, means an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee’s engagement with the religious body.

(3)  A reference in this Part to a reportable allegation includes an allegation in respect of conduct occurring before the commencement.

s 18: Am 2020 No 30, Sch 1.9[1].

(1)  Reportable conviction means a conviction, including a finding of guilt without the court proceeding to a conviction, in this State or elsewhere, of an offence involving reportable conduct—

(a)  in relation to an employee of a Schedule 1 entity—whether or not the conduct occurred in the course of the employee’s employment with the Schedule 1 entity, or

(b)  in relation to an employee of a public authority—

(i)  if the employee holds, or is required to hold, a working with children check clearance for the purpose of employment with the public authority—whether or not the conduct occurred in the course of the employee’s employment, or

(ii)  if the employee is not required to hold a working with children check clearance for the purpose of employment with the public authority—unless the conviction relates to conduct that occurred outside the course of the employee’s employment with the public authority, or

(c)  in relation to an employee of a religious body—whether or not the conduct occurred in the course of the employee’s engagement with the religious body.

(2)  A reference in this Part to a reportable conviction includes a conviction in respect of conduct occurring before the commencement.

s 19: Am 2020 No 30, Sch 1.9[2].

Reportable conduct means the following conduct, whether or not a criminal proceeding in relation to the conduct has been commenced or concluded—

(a)  a sexual offence,

(b)  sexual misconduct,

(c)  ill-treatment of a child,

(d)  neglect of a child,

(e)  an assault against a child,

(f)  an offence under section 43B or 316A of the Crimes Act 1900,

(g)  behaviour that causes significant emotional or psychological harm to a child.

Examples of indicators of significant emotional or psychological harm for paragraph (g)—

1   

displaying behaviour patterns that are out of character

2   

regressive behaviour

3   

anxiety or self-harm

Sexual offence means an offence of a sexual nature under a law of the State, another State, a Territory, or the Commonwealth, committed against, with or in the presence of a child.

Examples of sexual offences—

1   

sexual touching of a child

2   

a child grooming offence

3   

production, dissemination or possession of child abuse material

Sexual misconduct means conduct with, towards or in the presence of a child that—

(a)  is sexual in nature, but

(b)  is not a sexual offence.

Examples of sexual misconduct—

1   

descriptions of sexual acts without a legitimate reason to provide the descriptions

2   

sexual comments, conversations or communications

3   

comments to a child that express a desire to act in a sexual manner towards the child or another child

Ill-treatment, of a child, means conduct towards a child that is unreasonable and seriously inappropriate, improper, inhumane or cruel.

Examples of ill-treatment—

1   

making excessive or degrading demands of a child

2   

a pattern of hostile or degrading comments or behaviour towards a child

3   

using inappropriate forms of behaviour management towards a child

Neglect, of a child, means a significant failure to provide adequate and proper food, supervision, nursing, clothing, medical aid or lodging for the child, that causes or is likely to cause harm to a child, by—

(a)  a person with parental responsibility for the child, or

(b)  an authorised carer of the child, or

(c)  an employee, if the child is in the employee’s care.

Examples of neglect—

1   

failing to protect a child from abuse

2   

exposing a child to a harmful environment, for example, an environment where there is illicit drug use or illicit drug manufacturing

Assault means—

(a)  the intentional or reckless application of physical force without lawful justification or excuse, or

(b)  any act which intentionally or recklessly causes another to apprehend immediate and unlawful violence.

Examples of assault—

1   

hitting, striking, kicking, punching or dragging a child

2   

threatening to physically harm a child

Finding of reportable conduct means a finding, by a relevant entity or the Children’s Guardian, as a result of an investigation conducted under this Part, that a reportable allegation is sustained.

(1)  This section applies if a person (the first person) becomes aware of either of the following matters in relation to an employee of a relevant entity—

(a)  a reportable allegation,

(b)  a conviction the person considers is a reportable conviction.

(2)  If the first person is also an employee of the relevant entity or a third party employer,, the person must, as soon as practicable after becoming aware of the matter—

(a)  report the matter to the head of the relevant entity, or

(b)  if the employee to whom the matter relates is the head of the relevant entity, report the matter to the Children’s Guardian.

(3)  If the first person is not also an employee of the relevant entity or a third party employer, the person may—

(a)  report the matter to the head of the relevant entity, or

(b)  if the employee is the head of the relevant entity, report the matter to the Children’s Guardian.

s 27: Am 2020 No 24, Sch 1.1[7]; 2022 No 26, Sch 2.6[2].

(1)  If a person who gives a report is dissatisfied with the response of the head of the relevant entity to the report, the person may make a complaint to the Children’s Guardian.

(2)  Another person or other entity dissatisfied with the response of the head of the relevant entity to the report may also make a complaint to the Children’s Guardian.

(1)  This section applies if the head of a relevant entity—

(a)  receives a report in relation to an employee of the relevant entity, or

(b)  otherwise becomes aware of a reportable allegation in relation to an employee of the relevant entity or a conviction that is considered to be a reportable conviction.

(2)  The head of the relevant entity must give the Children’s Guardian a written notice (a notification) about the reportable allegation or conviction considered to be a reportable conviction that states—

(a)  that a report has been received in relation to an employee of the relevant entity, and

(b)  the type of reportable conduct the subject of the report, and

(c)  the name of the employee, and

(d)  the name and contact details of the relevant entity and the head of the relevant entity, and

(e)  for a reportable allegation—whether the Commissioner of Police has been notified of the allegation, and

(f)  if a report has been made under section 24 of the Children and Young Persons (Care and Protection) Act 1998—that the report has been made, and

(g)  the nature of the relevant entity’s initial risk assessment and risk management action, and

(h)  any other information prescribed by the regulations.

(3)  The notice must also include the following, if known to the head of the relevant entity—

(a)  details of the reportable allegation or conviction considered to be a reportable conviction,

(b)  the date of birth and working with children number, if any, of the employee the subject of the report,

(c)  for a reportable allegation of which the Commissioner of Police has been notified—the police report reference number,

(d)  if a report has been made under section 24 of the Children and Young Persons (Care and Protection) Act 1998—the report reference,

(e)  the names of other relevant entities that employ or engage the employee, whether or not directly, to provide a service to children, including as a volunteer or contractor.

(4)  The head of the relevant entity must give the Children’s Guardian the notice within 7 business days after the head of the entity is made aware of the report, unless—

(a)  an exemption applies under section 30, or

(b)  the head of the relevant entity has a reasonable excuse.

Maximum penalty—10 penalty units.

(5)  The head of the relevant entity may give the employee the subject of the report written notice that a report about a reportable allegation or conviction considered to be a reportable conviction has been made.

(6)  The Children’s Guardian may publish guidelines in relation to the matters that are appropriate for the head of a relevant entity to have regard to in deciding whether to provide the employee with written notice under subsection (5).

(7)  In this section—

working with children number has the same meaning as in the Child Protection (Working with Children) Act 2012.

s 29: Am 2021 No 45, Sch 5[1].

(1)  The Children’s Guardian may exempt a class or kind of conduct of employees of a relevant entity from notification under section 29.

(2)  The Children’s Guardian may exempt a class or kind of conduct of employees of a relevant entity from notification under section 29 only if the Children’s Guardian—

(a)  has followed the procedures for exempting a class or kind of conduct prescribed by the regulations, and

(b)  is satisfied the relevant entity, in relation to the exempt class or kind of conduct, meets the criteria, if any, prescribed by the regulations.

(3)  For an exemption under this section, the Children’s Guardian must—

(a)  notify the relevant entity of the exemption, and

(b)  publish the details of the class or kind of conduct and relevant entity with an exemption on the Office of the Children’s Guardian’s website.

(4)  The procedures and criteria referred to in subsection (2)(a) and (b) must also be published on the Office of the Children’s Guardian’s website.

s 30: Am 2021 No 45, Sch 5[2]–[4].

(1)  The Children’s Guardian may, by written notice given to the head of a relevant entity, exempt the head from commencing or continuing either of the following—

(a)  an investigation into a reportable allegation,

(b)  a determination as to whether a conviction considered to be a reportable conviction is a reportable conviction.

(2)  An exemption under subsection (1) applies until the head of the relevant entity is otherwise notified, in writing, by the Children’s Guardian that the exemption is revoked.

(3)  An exemption under subsection (1) is taken to be an exemption from the requirement for the relevant entity to provide an entity report or an interim report.

(4)  Without limiting subsection (1), the Children’s Guardian may exempt the head of a relevant entity if a matter is already being investigated by another relevant entity.

(5)  The Children’s Guardian may also exempt the relevant entity from the requirement to provide an entity report or an interim report in relation to a matter after the Children’s Guardian receives the notification for the matter.

(1)  This section applies if, in relation to an employee of a relevant entity—

(a)  the Children’s Guardian intends to—

(i)  investigate a reportable allegation or a matter arising from a reportable allegation, or

(ii)  determine whether a conviction considered to be a reportable conviction is a reportable conviction, and

(b)  an investigation or determination under section 34 has not been finalised.

(2)  The Children’s Guardian may, by written notice given to the head of the relevant entity, require the head to defer the investigation or determination.

(3)  The Children’s Guardian may, by further written notice to the head of the relevant entity, require the head to—

(a)  commence, continue or finalise the investigation or determination deferred under this section, or

(b)  end the investigation or determination and take no further action.

(1)  This section applies if the Commissioner of Police or the Director of Public Prosecutions advises the Children’s Guardian, or the head of a relevant entity, that an investigation or determination under this Part is likely to prejudice a police investigation or court proceeding.

(2)  The Children’s Guardian or head of the relevant entity may—

(a)  suspend the investigation or a determination until otherwise advised, and

(b)  after consulting the police officer in charge of the investigation or the Director of Public Prosecutions, take steps to manage any risks while the investigation or determination is suspended, and

(c)  if the investigation or determination was being conducted by the head of a relevant entity—

(i)  advise the Children’s Guardian about the suspension under this section, and

(ii)  advise the Children’s Guardian of the steps being taken to manage risks.

(3)  Before making a decision about whether or not to suspend an investigation or determination, the Children’s Guardian, or head of the relevant entity, must consult with the Commissioner of Police, or the Director of Public Prosecutions, who provided the advice under subsection (1).

(4)  If the investigation under this Part is not suspended, the Children’s Guardian or head of the relevant entity that decides not to suspend the investigation must ensure the investigation is conducted in a way that does not prejudice the police investigation or court proceeding.

(5)  An investigation or determination by a relevant entity, suspended by operation of this section, is taken to be exempt from the requirement to provide an entity report or an interim report until the period of 30 days after the suspension has ended.

(6)  This section does not affect the operation of any other Act.

(7)  For the purposes of this section—

(a)  a reference to a police investigation includes a reference to an investigation by the Australian Federal Police, an international investigation the Australian Federal Police are aware of, or a police investigation in another State or Territory, and

(b)  a reference to a court proceeding includes a reference to a court proceeding in another State or Territory, and

(c)  a reference to the Commissioner of Police or the Director of Public Prosecutions includes a reference to a person holding the equivalent office in another State or Territory.

s 33: Am 2021 No 45, Sch 5[5].

(1)  As soon as practicable after receiving a report, the head of the relevant entity must—

(a)  investigate, or arrange for an investigator to investigate, the reportable allegation, or

(b)  determine whether the conviction considered to be a reportable conviction is a reportable conviction.

(2)  During an investigation or a determination, an employee the subject of a reportable allegation or a conviction considered to be a reportable conviction may give the head of the relevant entity a written submission concerning the allegation or conviction for the purpose of determining what, if any, disciplinary or other action should be taken in relation to the employee.

(3)  The investigation or determination must be completed within a reasonable time.

Note—

Section 138 requires information to be reported in particular circumstances.

The head of the relevant entity, or the investigator, in conducting an investigation into a reportable allegation must have regard to the matters in Division 6.

(1)  After an investigation or determination is completed, the head of the relevant entity must prepare a report for the Children’s Guardian (an entity report), unless—

(a)  an exemption applies under section 31, or

(b)  the head of the relevant entity has a reasonable excuse, or

(c)  the Children’s Guardian consents to an extension of time for the head of the relevant entity to prepare the report.

Maximum penalty—10 penalty units.

(2)  The entity report must be provided to the Children’s Guardian within 30 days after the head of the entity receiving the report of the reportable allegation or conviction considered to be a reportable conviction, unless the head of the relevant entity gives the Children’s Guardian—

(a)  an interim report under section 38 within 30 days after receiving the report of the reportable allegation or conviction considered to be a reportable conviction, and

(b)  a reason for not providing the report within 30 days, and

(c)  an estimated time frame for the completion of the entity report.

Maximum penalty—10 penalty units.

(3)  Despite subsection (2), if the Children’s Guardian consents to an extension of time under subsection (1)(c), the report is due by the date granted under the extension.

(3A)  Despite subsection (2), the entity report is not required to be given to the Children’s Guardian if the conduct is, because of an exemption under section 30(1), exempt from notification under section 29.

(4)  The entity may give the entity report to the employee of the relevant entity the subject of the report.

s 36: Am 2021 No 45, Sch 5[6].

(1)  The entity report must include the following—

(a)  in relation to a reportable allegation—

(i)  information about the facts and circumstances of the reportable allegation, and

(ii)  the findings the head of the relevant entity has made about the reportable allegation after completing the investigation, including whether the head of the relevant entity has made a finding of reportable conduct, and

(iii)  an analysis of the evidence and the rationale for the findings,

(b)  in relation to a conviction considered to be a reportable conviction—

(i)  information about the conviction considered to be a reportable conviction, and

(ii)  the determination the head of the relevant entity has made about the conviction, including whether the head of the relevant entity has determined the conviction is a reportable conviction,

(c)  a copy of any written submission made by the employee under section 34(2),

(d)  information about what action has been, or will be, taken in relation to the reportable allegation or conviction considered to be a reportable conviction, including the following—

(i)  remedial or disciplinary action in relation to the employee,

(ii)  whether information about the matter has been referred to a different entity,

(iii)  changes to systems or policies including, if the entity is a child safe organisation, to improve implementation of the Child Safe Standards,

(iv)  if no further action is to be taken—that no further action is to be taken,

(e)  the reasons for the action taken, including taking no further action,

(f)  any other information prescribed by the regulations.

(2)  The entity report must also be accompanied by any copies of documents in the relevant entity’s possession that are relevant to the report, including transcripts of interviews and copies of evidence.

s 37: Am 2021 No 30, Sch 1[4].

An interim report must—

(a)  include the following information—

(i)  in relation to a reportable allegation—if known, the facts and circumstances of the reportable allegation,

(ii)  in relation to a conviction considered to be a reportable conviction—any known information about the conviction,

(iii)  action taken since the Children’s Guardian received a notification about the reportable allegation or the conviction considered to be a reportable conviction,

(iv)  further action the head of the relevant entity proposes to take in relation to the reportable allegation or conviction considered to be a reportable conviction, including if the head of the relevant entity proposes to take no further action,

(v)  the reasons for the action taken and the action proposed to be taken or the reasons for the decision to take no further action,

(vi)  other information prescribed by the regulations, and

(b)  be accompanied by copies of documents in the relevant entity’s possession, including transcripts of interviews and copies of evidence.

(1)  This Division applies in relation to a report, complaint or notification of a reportable allegation received by the head of a relevant entity, or by the Children’s Guardian.

(2)  This Division does not apply in relation to a reportable conviction.

(1)  The head of the relevant entity or the Children’s Guardian must make a finding of reportable conduct if it is satisfied that the case against the employee the subject of the reportable allegation has been proved against the employee on the balance of probabilities.

(2)  Without limiting the matters the head of the relevant entity or the Children’s Guardian may take into account in deciding whether it is satisfied the case has been proved on the balance of probabilities, the head of the relevant entity or the Children’s Guardian may take into account—

(a)  the nature of the reportable allegation and any defence, and

(b)  the gravity of the matters alleged.

(3)  The head of the relevant entity or the Children’s Guardian must consider whether the reportable allegation relates to conduct that is in breach of established standards applying to the employee of the relevant entity, having regard to the following—

(a)  professional standards,

(b)  codes of conduct, including any professional or ethical codes,

(c)  accepted community standards.

Reportable conduct does not include—

(a)  conduct that is reasonable for the purposes of discipline, management or care of a child, having regard to—

(i)  the age, maturity, health or other characteristics of the child, and

(ii)  any relevant code of conduct or professional standard, or

(b)  the use of physical force if—

(i)  in all the circumstances, the physical force is trivial or negligible, and

(ii)  the circumstances in which it was used have been investigated and the result of the investigation has been recorded in accordance with appropriate procedures, or

(c)  conduct of a class or kind exempted from being reportable conduct by the Children’s Guardian under section 30.

Example of conduct for paragraph (a)—

a school teacher raising his or her voice in order to attract attention or restore order in a classroom

Examples of conduct for paragraph (b)—

1   

touching a child in order to attract the child’s attention

2   

momentarily restraining a child to prevent the child hurting themselves or others

3   

touching a child to guide or comfort the child

After receiving a notification, the Children’s Guardian may require the relevant entity to provide further information in relation to—

(a)  the reportable allegation or conviction considered to be a reportable conviction, or

(b)  the relevant entity’s response to the notification.

(1)  The Children’s Guardian may, on the Children’s Guardian’s own initiative or because of a complaint, monitor the progress of an investigation or determination by the head of a relevant entity into a report if the Children’s Guardian considers the monitoring is in the public interest.

(2)  Without limiting subsection (1), the Children’s Guardian may do the following to monitor an investigation—

(a)  observe interviews carried out for the purposes of the investigation,

(b)  discuss the investigation with the head of the relevant entity,

(c)  provide guidance and advice to the relevant entity about the investigation,

(d)  by written notice, require the head of the relevant entity or the investigator to provide to the Children’s Guardian documents or other information, including records of interviews, relating to the investigation,

(d1)  review the relevant entity’s systems, policies and processes and their effectiveness in preventing, and responding to, reportable allegations and reportable convictions,

(e)  a thing prescribed by the regulations for this section.

s 43: Am 2021 No 30, Sch 1[5].

(1)  The Children’s Guardian may make preliminary inquiries to decide whether to carry out an investigation or determination under section 46.

(2)  The preliminary inquiries may be made whether or not the Children’s Guardian has received a complaint or notification about a matter to which the complaint or notification relates.

(3)  Without limiting subsection (1), the Children’s Guardian may, by written notice given to the entity that made the complaint or notification, require the entity to give the Children’s Guardian further written information about the matter the subject of the complaint or notification within the time stated in the notice.

(4)  Sections 16, 17, 18 and 19(1) of the Privacy and Personal Information Protection Act 1998 do not apply to information disclosed under this section.

(5)  Despite the Health Records and Information Privacy Act 2002—

(a)  a person may disclose health information, within the meaning of that Act, to the Children’s Guardian in relation to preliminary inquiries by the Children’s Guardian under this section, and

(b)  the Children’s Guardian may use the information for the purposes of this Part.

(1)  After receiving an entity report, the Children’s Guardian may require the head of the relevant entity to provide additional information the Children’s Guardian considers necessary to enable the Children’s Guardian to determine—

(a)  whether—

(i)  the reportable allegation was properly investigated, or

(ii)  the conviction considered to be a reportable conviction was properly determined, and

(b)  whether appropriate action was, or can be, taken as a result of the investigation or determination.

(2)  In this section—

appropriate action includes a penalty for the making of a reportable allegation that is shown to be false or misleading.

(1)  The Children’s Guardian may, if the Children’s Guardian reasonably believes it is in the public interest—

(a)  investigate a reportable allegation, or

(b)  make a determination about a conviction considered to be a reportable conviction, or

(c)  investigate the way in which a relevant entity has dealt with, or is dealing with, a report, complaint or notification.

(2)  An investigation or determination under subsection (1) may be carried out—

(a)  on the Children’s Guardian’s own initiative, or

(b)  because of a complaint or notification, or

(c)  because the Children’s Guardian is satisfied the head of a relevant entity is unable or unwilling to—

(i)  investigate or determine a report, or

(ii)  engage an investigator to carry out an investigation.

(3)  The investigation or determination must be completed within a reasonable time.

Note—

Section 138 requires information to be reported in particular circumstances.

(1)  On deciding to carry out an investigation or determination, the Children’s Guardian must, by written notice given to the following entities, advise the entities about the decision—

(a)  for an investigation or determination because of a report, complaint or notification involving an employee of a relevant entity—

(i)  the employee and the relevant entity, and

(ii)  if a complaint has been made—the entity that made the complaint,

(b)  for an investigation in relation to the way in which a relevant entity has dealt with a report or notification—the relevant entity,

(c)  an entity prescribed by the regulations.

(2)  The notice must describe the reportable allegation or the conviction considered to be a reportable conviction the subject of the investigation or determination.

(3)  Subsection (1)(a)(i) does not apply if giving the notice to the employee or relevant entity would compromise the investigation or put a person’s health or safety at serious risk.

(1)  For an investigation into a reportable allegation, the Children’s Guardian must have regard to the matters in Division 6.

(2)  An investigation under this Division must be carried out in the absence of the public.

(3)  Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of conducting the investigation.

(4)  For the purposes of an investigation under this Part, the Children’s Guardian may conduct an inquiry.

(5)  Schedule 3 provides for the Children’s Guardian’s powers to make or hold an inquiry.

(1)  After completing an investigation or determination the Children’s Guardian must prepare a report (a Children’s Guardian report).

(2)  The Children’s Guardian report must include the following—

(a)  in relation to a reportable allegation—

(i)  information about the facts and circumstances of the reportable allegation, and

(ii)  the findings the Children’s Guardian has made about the reportable allegation after completing the investigation, including whether the Children’s Guardian has made a finding of reportable conduct, and

(iii)  analysis of the evidence and the rationale for the findings,

(b)  in relation to a conviction considered to be a reportable conviction—

(i)  information about the conviction considered to be a reportable conviction, and

(ii)  the determination the Children’s Guardian has made about the conviction, including whether the Children’s Guardian has determined the conviction is a reportable conviction,

(c)  a copy of any written submissions made by the employee under section 34(2),

(d)  recommendations for action to be taken in relation to the reportable allegation or conviction considered to be a reportable conviction, including any of the following recommendations—

(i)  remedial or disciplinary action against—

(A)  the employee, or

(B)  if the complaint is about the head of a relevant entity—the head of the relevant entity,

(ii)  referring the matter to a different entity,

(iii)  changes to systems or policies including, if the entity is a child safe organisation, to improve implementation of the Child Safe Standards,

(iv)  that no further action should be taken,

(e)  reasons for the findings or determination,

(f)  any other information prescribed by the regulations.

s 49: Am 2021 No 30, Sch 1[6].

(1)  If the Children’s Guardian proposes to recommend in the Children’s Guardian report that the relevant entity take particular action, the Children’s Guardian must consult with the relevant entity about the recommendation before finalising the report.

(2)  Subsection (1) does not apply to the extent the Children’s Guardian reasonably believes consulting with the relevant entity would—

(a)  put a person’s health or safety at serious risk, or

(b)  put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or

(c)  prejudice an investigation or inquiry.

(3)  Recommendations the Children’s Guardian may make include recommendations that—

(a)  the reportable conduct or reportable conviction be considered or reconsidered by the relevant entity, or by any person in a position to supervise or direct the relevant entity or employee in relation to the conduct, or

(b)  action be taken to rectify, mitigate or change the reportable conduct or the consequences of the reportable conduct, or

(c)  a law or practice relating to the conduct be changed, or

(d)  other steps be taken.

(1)  This section applies if—

(a)  the Children’s Guardian makes a finding of reportable conduct or a determination that a conviction is a reportable conviction in relation to an employee of a relevant entity, and

(b)  in the Children’s Guardian report the Children’s Guardian makes a recommendation for dismissal, removal or punishment of the employee.

(2)  The Children’s Guardian must advise the following persons of the finding or determination, the recommendation and the reasons—

(a)  the Minister,

(b)  the head of the relevant entity,

(c)  if the finding or determination has been made about a person employed in, or by, a government sector agency within the meaning of the Government Sector Employment Act 2013—the Secretary of the Premier’s Department,

(d)  the employee the subject of the finding or determination.

(3)  The Children’s Guardian may advise the following persons of the finding or determination, the recommendation and the reasons—

(a)  the responsible Minister for the relevant entity concerned,

(b)  if the investigation or determination arose from a complaint—the entity that made the complaint.

(4)  Subsection (2)(d) does not apply to the extent the Children’s Guardian reasonably believes advising the employee would—

(a)  put a person’s health or safety at serious risk, or

(b)  put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or

(c)  prejudice any other investigation or inquiry.

s 51: Am 2023 No 35, Sch 4.5[1].

(1)  At the conclusion of an investigation or determination by the Children’s Guardian, or on a recommendation by the Children’s Guardian to refer a reportable allegation, reportable conduct or a reportable conviction back to the relevant entity, the Children’s Guardian must give the relevant entity and the employee the subject of the Children’s Guardian report—

(a)  the recommendations for action to be taken, and

(b)  necessary information relating to the recommendations.

(2)  The Children’s Guardian may give a copy of the report to the relevant entity the subject of the Children’s Guardian report or the employee the subject of the Children’s Guardian report.

(3)  Subsection (1) does not apply to the extent the Children’s Guardian reasonably believes giving the relevant entity or employee the information would—

(a)  put a person’s health or safety at serious risk, or

(b)  put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or

(c)  prejudice any other investigation or inquiry.

The head of a relevant entity may, and on request by the Children’s Guardian must, notify the Children’s Guardian of any action taken or proposed as a result of the recommendations provided under section 52.

(1)  This section applies to a relevant entity that is not a child safe organisation.

(2)  The head of a relevant entity must ensure the entity has systems including a code of conduct, policies and processes for the following—

(a)  preventing and detecting reportable conduct by an employee of the entity,

(b)  requiring an employee of the relevant entity to give a report, as soon as possible, in relation to a reportable allegation or conviction considered to be a reportable conviction involving an employee of the entity,

(c)  enabling a person, other than an employee of the relevant entity, to give a report to the head of the relevant entity about a reportable allegation or conviction considered to be a reportable conviction involving an employee of the relevant entity,

(d)  handling or responding to a reportable allegation or conviction considered to be a reportable conviction involving an employee of the relevant entity, having regard to principles of procedural fairness,

(e)  receiving, handling and disclosing information relating to reportable allegations, convictions considered to be reportable convictions and information relating to investigations and determinations,

(f)  identifying and dealing with matters relating to the prevention of reportable conduct by employees of the relevant entity.

s 54: Am 2021 No 30, Sch 1[7] [8].

(1A)  This section applies to a relevant entity that is not a child safe organisation.

(1)  The Children’s Guardian may, at any time by written notice, require the head of a relevant entity to give the Children’s Guardian, within the reasonable time stated in the notice, information about the entity’s systems under section 54.

(2)  If the relevant entity does not, without reasonable excuse, give the Children’s Guardian the information required under subsection (1), the Children’s Guardian may publish the following on the Children’s Guardian’s website—

(a)  the name of the relevant entity,

(b)  that the entity has failed to comply with the requirements for systems about reportable conduct under this Part.

s 55: Am 2021 No 30, Sch 1[9].

(1)  If a finding of reportable conduct or a determination has been made that a conviction is a reportable conviction, the Children’s Guardian must provide, to the Working with Children Check Unit within the Office of the Children’s Guardian, a report made under this Part, if the finding relates to the following types of conduct—

(a)  sexual misconduct,

(b)  a sexual offence,

(c)  a serious physical assault.

(2)  Also, if the Children’s Guardian is of the opinion that there is a real and appreciable risk to the safety of children during the course of an investigation, the Children’s Guardian must refer information about the employee the subject of the investigation to the Working with Children Check Unit, for the purpose of considering an interim bar under section 17 of the Child Protection (Working with Children) Act 2012.

(3)  In this section—

Working with Children Check Unit means that part of the Office of the Children’s Guardian that exercises functions in relation to working with children check clearances under the Child Protection (Working with Children) Act 2012.

(1)  This section applies to a person who is, or was, any of the following persons—

(a)  the Children’s Guardian,

(b)  the head of a relevant entity or an investigator for the relevant entity, to which a report of a reportable allegation or a conviction considered to be a reportable conviction, in relation to an employee of the relevant entity, was given.

(2)  A person must not disclose relevant information unless subsection (3) or (4) applies.

Maximum penalty—10 penalty units or imprisonment for a period not exceeding 12 months, or both.

(3)  A person to whom this section applies must disclose relevant information to the following persons unless the person is satisfied the disclosure is not in the public interest—

(a)  a child to whom the information relates,

(b)  a parent of the child,

(c)  if the child is in out-of-home care—an authorised carer that provides out-of-home care to the child.

(4)  Relevant information may be disclosed if—

(a)  it is for the purpose of promoting the safety, welfare or wellbeing of a child, or class of children, to whom the information relates, and

(b)  the information is disclosed to—

(i)  if the disclosure is made by the head of a relevant entity or investigator—the Children’s Guardian, or

(ii)  if the disclosure is made by the Children’s Guardian—the head of a relevant entity, or

(iii)  if the employee the subject of the reportable allegation or conviction considered to be a reportable conviction is a contractor—the head of an entity, other than the relevant entity, that engaged the employee as a contractor, or

(iv)  if the Secretary or Minister has parental responsibility for a relevant child under the Children and Young Persons (Care and Protection) Act 1998—the Secretary or Minister of the Department, or

(v)  a person who, under the Children and Young Persons (Care and Protection) Act 1998, has daily care and control of a relevant child, whether or not that care involves custody of the child, or

(vi)  the Civil and Administrative Tribunal, for the purposes of an application under Part 10, or

(vii)  a person, if necessary for the purpose of investigating the reportable allegation or determining the conviction considered to be a reportable conviction, or

(viii)  a person prescribed by the regulations.

(5)  The Children’s Guardian may publish guidelines for the matters a person specified in subsection (1) must have regard to in deciding whether or not to disclose relevant information under this section.

(6)  Nothing in this section prevents the Children’s Guardian from entering into an arrangement or procedure with another entity in relation to the exchange of information relating to the safety, welfare and wellbeing of a child or class of children.

(7)  In this section—

relevant child means a child or a member of a class of children—

(a)  against whom an employee of an entity is alleged to have committed reportable conduct, and

(b)  to whom the relevant information relates.

relevant information means the following information relating to a reportable allegation or conviction considered to be a reportable conviction—

(a)  information about the progress of the investigation,

(b)  information about the findings of the investigation,

(c)  information about action taken in response to the findings.

(1)  The Children’s Guardian must not disclose any information obtained in the course of an investigation or determination into reportable conduct or a conviction considered to be a reportable conviction, unless the disclosure is made—

(a)  if the person who is the subject of the investigation or determination holds, or is required to hold, a working with children check clearance—to that person, or

(b)  if the information relates to a public authority, including a Schedule 1 entity that is a public authority, and where the information is obtained from a relevant entity—with the consent of the head of the relevant entity, or of the responsible Minister, or

(c)  if the information relates to the safety, welfare or wellbeing of a particular child or class of children—to a police officer, the Department or any other public authority that the Children’s Guardian considers appropriate in the circumstances, or

(d)  if the Children’s Guardian believes on reasonable grounds that disclosure to a person is necessary to prevent or reduce the likelihood of harm being done to another person—to the person, or

(e)  where the information is obtained from any other person—

(i)  if the information relates to the person—with the consent of the person, or

(ii)  for the purpose of proceedings with respect to the discipline of police officers before the Commissioner of Police or the Industrial Relations Commission, or

(f)  for the purpose of proceedings under section 167A of the Police Act 1990, or

(g)  for the purpose of proceedings under—

(i)  the Public Interest Disclosures Act 2022, section 33 or 37, or

(ii)  the Independent Commission Against Corruption Act 1988, section 79I or 79L, or

(iii)  the Ombudsman Act 1974, section 31R or 31U, or

(iv)  the Law Enforcement Conduct Commission Act 2016, section 97H or 97K, or

(h)  for the purpose of criminal proceedings resulting from an investigation under this Act, or

(i)  for the purpose of any proceedings under section 161 or 169 of this Act or under Part 3 of the Royal Commissions Act 1923 or Part 4 of the Special Commissions of Inquiry Act 1983, or

(j)  to a medical practitioner or psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling, including psychological counselling to the Children’s Guardian or an officer of the Children’s Guardian, or

(k)  to an Official Community Visitor for the purpose of exercising the Official Community Visitor’s functions under this Act, or

(l)  to a complainant, for the purposes of responding to a complaint about a relevant entity’s handling of a reportable allegation or conviction considered to be a reportable conviction, or

(m)  for the purpose of discharging the Children’s Guardian’s functions under this or any other Act.

Maximum penalty—10 penalty units.

(2)  Subsection (1) does not operate to make admissible in evidence in proceedings a document that would not have been admissible if this section had not been enacted.

s 58: Am 2022 No 14, Sch 8.1[1] [2].

(1)  Section 58 does not prevent the Children’s Guardian from giving information obtained under this Part to a relevant person in relation to—

(a)  a matter relevant to the exercise of a law of any other State, the Commonwealth or a Territory, or

(b)  an undertaking that is or was being carried out jointly by New South Wales and any other State, the Commonwealth or a Territory.

(2)  In this section—

relevant person means a person exercising functions under a law of another State, the Commonwealth or a Territory, similar to those exercised by the Children’s Guardian under this Act.

(1)  Nothing in this Division limits disclosure that is required or permitted by law.

(2)  The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 do not prevent disclosure that is authorised by, or under, this Act.

(1)  In relation to an investigation under this Part, the Children’s Guardian, or officer of the Children’s Guardian, must not be compellable to give evidence or produce any document in legal proceedings in respect of any information obtained by the Office of the Children’s Guardian.

(2)  Subsection (1) does not apply to the following—

(a)  proceedings for an offence under this Part,

(b)  proceedings under Part 3 of the Royal Commissions Act 1923,

(c)  proceedings under Part 4 of the Special Commissions of Inquiry Act 1983,

(d)  proceedings under Part 5 of the Government Information (Public Access) Act 2009 arising as a consequence of a decision made by the Children’s Guardian in respect of an access application under that Act,

Note—

Matters in relation to reportable conduct are prescribed as excluded information under Schedule 2 to the Government Information (Public Access) Act 2009.

(e)  proceedings under section 167A of the Police Act 1990,

(f)  proceedings under—

(i)  the Public Interest Disclosures Act 2022, section 33 or 37, or

(ii)  the Independent Commission Against Corruption Act 1988, section 79I or 79L, or

(iii)  the Ombudsman Act 1974, section 31R or 31U, or

(iv)  the Law Enforcement Conduct Commission Act 2016, section 97H or 97K,

(g)  criminal proceedings resulting from an investigation under this Part.

(3)  Subsection (1) applies to the following persons in the same way it applies to the Children’s Guardian and an officer of the Children’s Guardian—

(a)  a former Children’s Guardian,

(b)  a former officer of the Children’s Guardian,

(c)  an Australian legal practitioner who is, or was, appointed under clause 1(5) of Schedule 3 to assist the Children’s Guardian,

(d)  a person whose services are, or were, engaged under section 67.

s 61: Am 2022 No 14, Sch 8.1[3].

(1)  This section applies if the Children’s Guardian requires a person, under this Part, or under Schedules 2 or 3 in relation to an investigation or inquiry under this Part—

(a)  to give a statement of information, or

(b)  to produce a document or other thing, or

(c)  to give a copy of a document, or

(d)  to answer a question.

(2)  The Children’s Guardian must set aside the requirement if it appears to the Children’s Guardian that a person has a ground of privilege, whereby—

(a)  in proceedings in a court of law, the person might resist a similar requirement, and

(b)  it does not appear to the Children’s Guardian that the person consents to compliance with the requirement.

(3)  The powers may be exercised despite—

(a)  a rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or document or thing or to production of the document or thing on grounds of public interest, or

(b)  any privilege of a relevant entity which the relevant entity might claim in a court of law, or

(c)  any duty of secrecy or other restriction on disclosure applying to a relevant entity.

(1)  An employer who dismisses an employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee assisting the Children’s Guardian is guilty of an indictable offence.

Maximum penalty—200 penalty units or imprisonment for 5 years, or both.

(2)  In proceedings for an offence against subsection (1), it lies on the employer to prove that any employee shown to have been dismissed or prejudiced in his or her employment was so dismissed or prejudiced for some reason other than the reasons mentioned in subsection (1).

(3)  In this section, a reference to a person assisting the Children’s Guardian is a reference to a person who—

(a)  has appeared, is appearing or is to appear as a witness before the Children’s Guardian, or

(b)  has complied with or proposes to comply with a requirement under Part 5 of Schedule 2, or

(c)  has assisted, is assisting or is to assist the Children’s Guardian in some other manner.

s 63: Am 2020 No 24, Sch 1.1[8].

(1)  This section applies if a person, acting in good faith, gives, or proposes to give—

(a)  a report to the head of a relevant entity or the Children’s Guardian, or

(b)  a complaint or notification to the Children’s Guardian.

(2)  A person must not take, or threaten to take, detrimental action in respect of a person specified in subsection (1), because of the report, complaint or notification.

Maximum penalty—50 penalty units or imprisonment for 12 months, or both.

(3)  For subsection (1), a report, complaint or notification is not given in good faith if—

(a)  the report, complaint or notification was made or proposed in bad faith, or

(b)  a material allegation was known, by the person giving the report, complaint or notification, to be false.

(4)  In this section—

detrimental action means action causing, comprising or involving the following—

(a)  injury, damage or loss,

(b)  intimidation or harassment,

(c)  discrimination, disadvantage or adverse treatment in relation to employment,

(d)  dismissal from, or prejudice in, employment,

(e)  prejudice in the provision of a community service,

(f)  disciplinary proceedings.

The head of a relevant entity may delegate any of the functions of the head of the relevant entity under this Part to an employee of the entity.

(1)  This section applies to a relevant entity—

(a)  that—

(i)  is not a Department, and

(ii)  does not have a chief executive officer or principal officer, and

(b)  if the regulations do not prescribe a person or a class of persons as the head of the entity.

(2)  For this Part, the relevant entity must nominate a person or the holder of a position in the entity to be the head of the entity.

(3)  The Children’s Guardian may approve, or refuse to approve, by written notice given to the entity, the person as the head of the entity.

(4)  The approval given by the Children’s Guardian under this section may be revoked by written notice, given to the entity, at any time.

(5)  In this section—

relevant entity includes a child safe organisation.

s 66: Am 2021 No 16, Sch 5[1]; 2022 No 33, Sch 1[3].

For the purposes of the exercise of the Children’s Guardian’s functions in relation to this Part, the Children’s Guardian may engage the services of a person for the purpose of getting expert assistance.

(1)  This section applies to—

(a)  a person who gives a report, or

(b)  a person who makes a complaint, or

(c)  a person who gives the Children’s Guardian a notification.

(2)  The person is not subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, for giving the report, complaint or notification, if the person is acting in good faith.

(1)  Subsection (2) applies if an individual gives or produces information or a document to the head of the relevant entity, or a person conducting an investigation on behalf of the head of the relevant entity or the Children’s Guardian, under this Part.

(2)  Evidence of the information or document, and other evidence directly or indirectly derived from the information or document, is not admissible against the individual in a proceeding to the extent it tends to incriminate the individual, or expose the individual to a penalty, in the proceeding.

(3)  Subsection (2) does not apply to a proceeding about the false or misleading nature of the information or anything in the document or in which the false or misleading nature of the information or document is relevant evidence.

(1)  This Act does not enable the Children’s Guardian—

(a)  to require any person—

(i)  to give any statement of information, or

(ii)  to produce any document or other thing, or

(iii)  to give a copy of any document, or

(iv)  to answer any question, or

(b)  to inspect any document or thing,

that relates to Cabinet information.

(2)  For the purposes of this section, a certificate of the Secretary or General Counsel of the Cabinet Office that—

(a)  information is Cabinet information, or

(b)  any information, document, thing or question relates to confidential proceedings of Cabinet or of a committee of Cabinet,

is conclusive of that fact.

(3)  In this section—

Cabinet information means—

(a)  Cabinet information under the Government Information (Public Access) Act 2009, or

(b)  confidential proceedings of Cabinet or a committee of Cabinet.

s 70: Am 2023 No 35, Sch 4.5[2].

The objects of this Part are—

(a)  to monitor and regulate out-of-home care to ensure a high standard in the provision of out-of-home care, and

(b)  to ensure the rights of and obligations to children in out-of-home care are safeguarded and promoted, and

(c)    (Repealed)

(d)  to clarify the roles and responsibilities of agencies and persons involved in the provision of out-of-home care, and

(e)  to ensure agencies and persons providing out-of-home care to children are appropriately regulated to promote the safety, welfare and wellbeing of the children, and

(f)  to promote the best interests of all children in out-of-home care, and

(g)  to assess the suitability of agencies for accreditation and to monitor the carrying out of accredited agencies’ responsibilities, and

(h)    (Repealed)

(i)  to establish and maintain a register for the purpose of the authorisation of individuals as authorised carers, and

(j)  to establish and maintain a register of residential care workers.

Note—

The Children and Young Persons (Care and Protection) Act 1998 provides for the oversight of children in statutory out-of-home care and supported out-of-home care.

s 71: Am 2022 No 33, Sch 1[5].

In this Act, designated agency means an agency accredited by the Children’s Guardian under Schedule 3A.

s 72: Am 2020 No 24, Sch 1.1[9] [10]. Subst 2022 No 33, Sch 1[6].

In this Act, the principal officer, of a designated agency, means the person who has the overall supervision of the agency’s arrangements for providing statutory out-of-home care and supported out-of-home care.

s 74: Subst 2022 No 33, Sch 1[7].

(1)  Anything done by, or with the approval of, the principal officer of a designated agency in relation to out-of-home care is, for this Act and the regulations, taken to be done by the designated agency concerned.

(2)  Nothing in subsection (1) affects the personal liability of the principal officer.

s 75: Am 2022 No 33, Sch 1[8] [9].

(1)  The principal officer of a designated agency must not reside on the same property as a child who is in statutory out-of-home care or supported out-of-home care supervised by the designated agency.

Maximum penalty—200 penalty units.

(2)  Subsection (1) does not apply if the principal officer resides with the child at a facility of the designated agency at which out-of-home care is provided.

A designated agency that places a child in the out-of-home care of an authorised carer has a responsibility to supervise the placement (supervisory responsibility).

If a child dies while in statutory out-of-home care or supported out-of-home care, the principal officer of the designated agency having supervisory responsibility, within the meaning of section 82, for the child must immediately cause notice of the death to be given to the following persons—

(a)  the parents of the child if the parents can reasonably be located,

(b)  the Children’s Guardian,

(c)  the Coroner.

Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of monitoring and accreditation under this Part or under the regulations in relation to out-of-home care.

(1)  The Children’s Guardian may keep the following registers—

(a)  a register for carers (the carers register),

(b)  a register for residential care workers (the residential care workers register),

(c)  a register for children in specialised substitute residential care (the specialised substitute residential care register).

(1A)  The Children’s Guardian, and a person prescribed by the regulations for the purposes of this section, may deal with information for the purposes of keeping a register.

(1B)  The carers register may include information about the following—

(a)  a carer (a relevant authorised carer) authorised by a designated agency to provide statutory out-of-home care or supported out-of-home care in a private capacity,

(b)  a person who was formerly a relevant authorised carer,

(c)  a person who has applied to be a relevant authorised carer,

(d)  a person, other than a child in out-of-home care, who resides for more than 21 days on the same property as a relevant authorised carer,

(e)  a person prescribed by the regulations.

(1C)  The residential care workers register may include information about the following—

(a)  a residential care worker,

(b)  a person who was formerly a residential care worker,

(c)  a person who has applied to be a residential care worker and who reached an advanced stage in the recruitment process,

(d)  a person prescribed by the regulations.

(1D)  The specialised substitute residential care register may include information about the following—

(a)  a child in specialised substitute residential care,

(b)  a person prescribed by the regulations.

(2)  The regulations may provide for the following—

(a)  the information to be kept under each register,

(b)  the way the information must be recorded, including amendments to a register,

(c)  when information must be kept, or updated, on a register,

(d)  the checks a person who is kept on a register is to be subject to and the ways to record the outcomes of the checks,

(e)  persons who may access a register, or particular information kept on a register,

(f)  how a register may be used,

(g)  the way a register may be kept.

(3)  In this section—

advanced stage, in a recruitment process, means a stage prescribed by the regulations.

deal, with information, means collect, use or disclose information.

s 85: Am 2020 No 31, Sch 2.2[1]–[4]; 2022 No 33, Sch 1[11]–[15]; 2022 No 59, Sch 2.7[1].

(1)  The Children’s Guardian must ensure that information on a register is not disclosed except—

(a)  as provided by this Division, or

(b)  as required or permitted to be disclosed under another Act or law.

(2)  A residential care provider must have access to the information on the residential care workers register in relation to the following—

(a)  residential care workers who work at places at which residential care is provided if the provision of the residential care is arranged by the residential care provider (residential care workers for the residential care provider),

(b)  persons who were formerly residential care workers for the residential care provider,

(c)  persons who have applied to be residential care workers for the residential care provider,

(d)  persons prescribed by the regulations.

(3)  The Children’s Guardian must provide access to information held on a register to any of the following persons if asked by the person—

(a)  the Secretary,

(b)  the Minister administering the Children and Young Persons (Care and Protection) Act 1998,

(c)  the Ombudsman.

s 86: Am 2022 No 33, Sch 1[16] [17]; 2022 No 59, Sch 2.7[1] [2].

(1)  This section applies—

(a)  to a person whose details are included on a register, and

(b)  in addition to any requirement under section 14 of the Privacy and Personal Information Protection Act 1998.

(2)  The person may ask any of the following entities to give the person all the information that is included on the register in relation to the person—

(a)  the Children’s Guardian,

(b)  the residential care provider who has access to the person’s information under section 86(2).

(3)  The Children’s Guardian or residential care provider must comply with the request as soon as practicable after the request is made.

(4)  Despite subsection (3), information included on a register in relation to the person must not be provided if—

(a)  the information is about a reportable allegation or reportable conviction, or

(b)  a reportable conduct flag is on the register in relation to the person, applies to the information.

(5)  It is an offence for a person to access or amend a register except as provided by this Act or the regulations.

Maximum penalty—100 penalty units.

(6)    (Repealed)

s 87: Am 2020 No 30, Sch 2.7[1] [2]; 2022 No 33, Sch 1[18]–[20]; 2022 No 59, Sch 2.7[1] [3] [4].

A residential care provider with access to the residential care workers register must remove a reportable conduct flag for a person if the finding of the investigation or determination to which the flag applies is that the person does not pose a real and appreciable risk to a child or children.

s 88: Am 2022 No 59, Sch 2.7[2] [5].

The objects of this Part are—

(a)  to promote the safety, welfare and wellbeing of children under the age of 16 years in relation to employment by assessing and granting employers’ authorities and exemptions, and

(b)  to prevent the exploitation and abuse of children in employment, and

(c)  to provide for the circumstances in which a child may be employed that ensure the employment does not compromise the child’s personal or social development and ability to benefit from education, including the granting and revocation of exemptions from the requirement to hold an employer’s authority.

In this Part—

child means—

(a)  in relation to employment as a model—a person under the age of 16 years, or

(b)  otherwise—a person under the age of 15 years.

employment means—

(a)  paid employment, or

(b)  employment under which a material benefit is provided.

If a relationship of employment may not otherwise exist, a person is also taken, for this Part, to employ a child if—

(a)  the regulations declare that persons of a class to which the person belongs are taken to employ children of a class to which the child belongs, or

(b)  the Children’s Guardian has, by written notice given to the person, declared that the person is, for this Part, taken to employ a child or children of the class to which the child or children belong.

(1)  A person must not employ a child to carry out the following activities unless the person holds an employer’s authority that authorises the person to employ children to carry out the activity—

(a)  taking part in an entertainment or exhibition,

(b)  taking part in a performance that is recorded for use in a subsequent entertainment or exhibition,

(c)  offering anything for sale from door-to-door,

(d)  an activity prescribed by the regulations for this section.

Maximum penalty—100 penalty units.

(2)  A person must not cause or procure a child to be employed knowing the child will be employed in contravention of subsection (1).

Maximum penalty—100 penalty units.

(3)  A person having the care of a child must not consent to or otherwise allow the child to be employed knowing the child will be employed in contravention of subsection (1).

Maximum penalty—100 penalty units.

(1)  A person who employs a child to carry out an activity mentioned in section 92(1) is not required to hold an employer’s authority for the employment if—

(a)  the child is employed for the purpose of a fundraising appeal, within the meaning of the Charitable Fundraising Act 1991, by a person lawfully conducting the appeal, or

(b)  the child is employed for the purpose of an occasional entertainment or exhibition, the net proceeds of which are to be applied wholly for a charitable purpose, or

(c)  the person is exempt under the regulations from the requirement to hold an employer’s authority for the employment, or

(d)  the person is exempt by the Children’s Guardian under section 102 from being required to hold an employer’s authority.

(2)  The regulations may prescribe conditions of an exemption from the requirement to hold an employer’s authority for the employment.

s 93: Am 2020 No 24, Sch 1.1[14].

(1)  The Children’s Guardian may exempt a person from being required to hold an employer’s authority—

(a)  if written notice of the exemption has been given to the person setting out the conditions, if any, on which the exemption was granted, and

(b)  until the person contravenes a condition on which the exemption was granted.

(2)  The Children’s Guardian may revoke an exemption by a written notice given to the exempt person but only after—

(a)  notice has been given to the person and the notice sets out the reason the Children’s Guardian intends to revoke the exemption, and

(b)  the Children’s Guardian has taken into consideration any written submission made to the Children’s Guardian by the person within 28 days after the notice was given.

(3)  Without limiting the reasons for which an exemption may be revoked, an exemption may be revoked if a condition of the exemption is contravened.

(4)  The Children’s Guardian may revoke an exemption—

(a)  which applies because the employer is lawfully conducting a fundraising appeal, but only with the agreement of the Minister administering the Charitable Fundraising Act 1991, or

(b)  granted by the regulations, but only if the regulations allow the Children’s Guardian to revoke the exemption.

(5)  The regulations may prescribe conditions of an exemption granted by the Children’s Guardian.

s 102: Am 2020 No 24, Sch 1.1[17].

pt 7, div 1, hdg: Rep 2022 No 33, Sch 1[21].

Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of investigating a complaint or an offence under this Part.

(1)  The Children’s Guardian may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to the Children’s Guardian’s functions under section 128 (relating to the employment of children).

(2)  Without limiting subsection (1), an undertaking that the Children’s Guardian may accept includes an undertaking to carry out a restorative justice activity.

(3)  The person may withdraw or vary the undertaking at any time, but only with the consent in writing of the Children’s Guardian.

(4)  The consent of the Children’s Guardian is required even if the undertaking purports to authorise withdrawal or variation of the undertaking without that consent.

(5)  The Children’s Guardian may apply to the Supreme Court for an order under subsection (6) if the Children’s Guardian considers that the person who gave the undertaking has breached the terms of the undertaking.

(6)  The Supreme Court may make all or any of the following orders if the Court is satisfied the person has breached a term of the undertaking—

(a)  an order directing the person to comply with the term of the undertaking,

(b)  an order directing the person to pay to the State an amount not exceeding the amount of a financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,

(c)  an order the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,

(d)  an order suspending or revoking an employer’s authority,

(e)  any other order the Court considers appropriate.

(1)  The Children’s Guardian may, by written notice, request that a person provide the Children’s Guardian with information, including documents, relevant to the exercise of the Children’s Guardian’s functions under section 128 relating to the employment of children.

(2)  A notice under subsection (1) may be given for the purposes of—

(a)  preparing submissions to the Supreme Court under this Act, or

(b)  investigating a complaint relating to the employment of children.

(3)  A person given the notice is authorised to provide the Children’s Guardian with the information requested.

(4)  A notice under this section may state the day on or before which the notice must be complied with.

(5)  If documents are given to the Children’s Guardian under this section, the Children’s Guardian—

(a)  may take possession of, and make copies of or take extracts from, the documents, and

(b)  may keep possession of the documents for the period necessary for the purposes of preparing the submission or investigating the complaint, and

(c)  if a person would otherwise be entitled to inspect the documents if the documents were not in the possession of the Children’s Guardian—must permit the person to inspect the documents at all reasonable times.

A person who causes or allows a child to take part in employment, in the course of which the child’s physical or emotional wellbeing is put at risk, is guilty of an offence.

Maximum penalty—200 penalty units.

A child is taken to be a child in need of care and protection under Chapter 4 of the Children and Young Persons (Care and Protection) Act 1998 if—

(a)  a person (other than a relative of the child) is employing the child in contravention of this Act at any place, and

(b)  the Children’s Guardian requests a person responsible for the child to remove the child from the place, and

(c)  the child is not immediately removed.

(1)  There is to be a Children’s Guardian.

(2)  The Children’s Guardian is appointed by the Governor.

(1)  The Children’s Guardian holds office for the term, not more than 5 years, stated in the instrument of appointment.

(2)  The Children’s Guardian is eligible for re-appointment.

(3)  However, a person may not be appointed for more than 2 terms of office as Children’s Guardian, whether or not the terms are consecutive.

The office of Children’s Guardian is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.

A person is not eligible for appointment as Children’s Guardian if the person is a member of the Legislative Council or the Legislative Assembly or is a member of a House of Parliament of another State or of the Commonwealth.

(1)  Subject to this Part, the employment of the Children’s Guardian is on the terms and conditions stated in the instrument of appointment.

(2)  The following provisions (the relevant provisions) of, or made under, the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to the Children’s Guardian—

(a)  provisions relating to the band in which an executive is to be employed,

(b)  provisions relating to the contract of employment of an executive,

(c)  provisions relating to the remuneration, employment benefits and allowances of an executive.

(3)  For subsection (2), in applying the relevant provisions to the Children’s Guardian, a reference to the employer of a Public Service senior executive is taken to be a reference to the Minister.

(1)  The office of Children’s Guardian is a statutory office.

(2)  The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to the office.

(1)  The office of Children’s Guardian becomes vacant if the holder—

(a)  engages in any paid employment outside the duties of the office, or

(b)  is nominated for election as a member of the Legislative Council or the Legislative Assembly or as a member of a House of Parliament of another State or of the Commonwealth, or

(c)  resigns the office by instrument in writing addressed to the Governor and the Governor accepts the resignation.

(2)  If the office of Children’s Guardian becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.

s 121: Am 2023 No 39, Sch 2[1] [2].

(1)  The Governor may, at any time, remove the Children’s Guardian from office upon the address of both Houses of Parliament.

(2)  To remove any doubt, the Children’s Guardian cannot be removed from office under Part 6 of the Government Sector Employment Act 2013.

(1)  If a person is appointed to act in the office of Children’s Guardian, the acting Children’s Guardian is entitled to be paid the remuneration and allowances decided by the Minister.

(2)  The Governor may remove a person from the office of acting Children’s Guardian.

(1)  The Children’s Guardian may appoint one or more Deputy Children’s Guardian and Assistant Children’s Guardian.

(2)  Section 118 applies to and in respect of a Deputy Children’s Guardian and an Assistant Children’s Guardian in the same way the provision applies to and in respect of the Children’s Guardian.

(3)  The offices of Deputy Children’s Guardian and Assistant Children’s Guardian—

(a)  are statutory offices, and

(b)  except as applied by section 125(2), the provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to the offices.

(4)  A Deputy Children’s Guardian or an Assistant Children’s Guardian holds office for the term, not exceeding 5 years, stated in an instrument of appointment, and is eligible for re-appointment.

(1)  The employment of a Deputy Children’s Guardian and an Assistant Children’s Guardian is to be governed by a contract of employment between the Deputy Children’s Guardian or Assistant Children’s Guardian and the Children’s Guardian.

(2)  The following provisions (the relevant provisions) of, or made under, the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to a Deputy Children’s Guardian or an Assistant Children’s Guardian—

(a)  provisions relating to the band in which an executive is to be employed,

(b)  provisions relating to the contract of employment of an executive,

(c)  provisions relating to the remuneration, employment benefits and allowances of an executive,

(d)  provisions relating to the termination of employment of an executive.

(3)  For subsection (2), in applying the relevant provisions to a Deputy Children’s Guardian or an Assistant Children’s Guardian, a reference to the employer of a Public Service senior executive is taken to be a reference to the Children’s Guardian.

(1)  The office of a Deputy Children’s Guardian or an Assistant Children’s Guardian becomes vacant if the holder—

(a)  dies, or

(b)  completes a term of office and is not re-appointed, or

(c)  resigns the office by instrument in writing addressed to the Children’s Guardian, or

(d)  becomes bankrupt, applies to take the benefit of a law for the relief of bankrupt or insolvent debtors, compounds with the holder’s creditors or makes an assignment of the holder’s remuneration for the holder’s benefit, or

(e)  becomes a mentally incapacitated person, or

(f)  is convicted in New South Wales of an offence that is punishable by imprisonment for 12 months or more or is convicted of an offence that, if committed in New South Wales, would be an offence punishable by imprisonment for 12 months or more, or

(g)  is nominated for election as a member of the Legislative Council or the Legislative Assembly or as a member of a House of Parliament of another State or of the Commonwealth, or

(h)  is removed from office under section 125(2).

(2)  A Deputy Children’s Guardian or an Assistant Children’s Guardian appointed as acting Children’s Guardian under section 123, does not, on that account, cease to be Deputy Children’s Guardian or an Assistant Children’s Guardian.

Persons may be employed in the Public Service under the Government Sector Employment Act 2013 to enable the Children’s Guardian to exercise the Children’s Guardian’s functions.

Note—

Section 59 of the Government Sector Employment Act 2013 provides that a person employed may be referred to as an officer or employee, or member of staff, of the Children’s Guardian. Section 47A of the Constitution Act 1902 precludes the Children’s Guardian from employing staff.

(1)  The principal functions of the Children’s Guardian are as follows—

(a)  to take action to build the capability of child safe organisations to implement the Child Safe Standards and to prevent harm to children,

(a1)  to monitor, investigate and enforce the implementation by child safe organisations of the Child Safe Standards,

(a2)  to undertake functions under Part 3A, Division 3 relating to child safe action plans,

(a3)  to exercise functions relating to persons engaged in child-related work, including working with children check clearances, under the Child Protection (Working with Children) Act 2012,

(b)  to promote the best interests of all children in out-of-home care,

(c)  to ensure the rights of all children in out-of-home care are safeguarded and promoted,

(d)  to establish a register for the purpose of the authorisation of individuals as authorised carers, and to maintain that register,

(e)  to exercise accreditation functions for designated agencies,

(f)  to exercise accreditation functions for adoption service providers,

(f1)  to monitor the exercise of functions under the children’s care legislation by designated agencies,

(f2)  to monitor the exercise of functions under the children’s care legislation by accredited adoption service providers in relation to the provision of adoption services,

(f3)  to monitor the exercise of functions of the Secretary in relation to the provision of adoption services under the Adoption Act 2000 and the regulations under that Act,

(f4)  to investigate compliance with the children’s care legislation,

(g)  to exercise functions relating to the employment of children, including the making and revoking of exemptions from the requirement to hold an employer’s authority,

(h)  to develop and administer a voluntary accreditation scheme for persons working with persons who have committed sexual offences against children,

(i)  to develop and administer a voluntary accreditation scheme for programs for persons who have committed sexual offences against children,

(j)  to encourage organisations to develop the organisations’ capacity to be safe for children under the Children’s Guardian’s public awareness and advice functions specified in the Child Protection (Working with Children) Act 2012,

(k)    (Repealed)

(l)  to establish and maintain a register for the application and engagement of individuals as residential care workers,

(m)  to administer a reportable conduct scheme and work with relevant entities to prevent, identify and respond to reportable conduct and promote compliance with the scheme,

(n)  to educate and provide advice to relevant entities, monitor investigations by relevant entities, make recommendations to relevant entities and investigate reportable allegations or make determinations about convictions considered to be reportable convictions,

(o)  to co-ordinate the Official Community Visitor scheme in relation to Official Community Visitors.

(2)  Also, the Children’s Guardian has any other functions conferred or imposed on the Children’s Guardian by or under this Act or any other Act.

(3)  The Children’s Guardian is not subject to the control or direction of the Minister.

s 128: Am 2021 No 30, Sch 1[10]; 2022 No 33, Sch 1[28] [29].

The Children’s Guardian must not carry out the following functions—

(a)  an investigation into the death of a child that is or has been subject to—

(i)  an investigation under the Coroners Act 2009, or

(ii)  a review or an investigation under the Ombudsman Act 1974,

(b)  the investigation or resolution of a matter that is, or was, the subject of a community services complaint within the meaning of Part 4 of the Community Services (Complaints, Reviews and Monitoring) Act 1993, unless the Ombudsman has agreed.

(1)  The Children’s Guardian may appoint advisory committees to assist in the exercise of the Children’s Guardian’s functions.

(2)  The procedure of an advisory committee is to be decided by—

(a)  the Children’s Guardian, or

(b)  if directed by the Children’s Guardian—the committee.

(3)  A member of an advisory committee is entitled to the allowances decided by the Minister.

(4)  The Children’s Guardian may disband an advisory committee at any time.

The Children’s Guardian may, by notice in writing given to an authorised carer, remove the responsibility for the daily care and control of a child or young person from the authorised carer.

s 131: Ins 2019 No 25, Sch 5.8[18] (provision transferred and renumbered from the Children and Young Persons (Care and Protection) Act 1998, sec 182).

The Children’s Guardian may apply to the Children’s Court at any time for the rescission or variation of any order made under the Children and Young Persons (Care and Protection) Act 1998 by the Children’s Court as if the Children’s Guardian were a party to the proceedings in respect of which the order was made.

s 132: Ins 2019 No 25, Sch 5.8[19] (provision transferred and renumbered from the Children and Young Persons (Care and Protection) Act 1998, sec 184).

(1)  Subject to subsection (2), the Children’s Guardian may delegate to an officer of the Children’s Guardian the exercise of a function of the Children’s Guardian.

(2)  The Children’s Guardian may not delegate the exercise of—

(a)  a function to make a report under this Act, other than to an Assistant Children’s Guardian, or

(b)  a function conferred by clause 1(2) of Schedule 3, other than to an Assistant Children’s Guardian, or

(c)  the power of delegation under subsection (1).

(3)  An officer to whom the exercise of a function has been delegated under subsection (1) may subdelegate the exercise of the function to—

(a)  another officer of the Children’s Guardian, or

(b)  a person, or a member of a class of persons, prescribed by the regulations or approved by the Children’s Guardian.

(1)  This section applies if information obtained by the Children’s Guardian in the course of exercising the Children’s Guardian’s functions is—

(a)  information relating to a possible criminal offence under an Act or other law, or

(b)  information relating to grounds for possible disciplinary action under an Act or other law.

(2)  The Children’s Guardian may refer the information to—

(a)  the Commissioner of Police, or

(b)  the Ombudsman, or

(c)  the Secretary, or

(d)  a NSW, interstate or Commonwealth investigative or disciplinary government agency the Children’s Guardian considers appropriate.

(3)  However, this section does not apply to information obtained in the course of exercising functions under section 40A of the Child Protection (Working with Children) Act 2012.

(4)  Nothing in this section limits or affects the operation of Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998.

(1)  This section applies to the following entities—

(a)  the Children’s Guardian,

(b)  an advisory committee,

(c)  a member of an advisory committee,

(d)  a person acting under the direction of the Children’s Guardian,

(e)  an Official Community Visitor.

(2)  A matter or thing done, or omitted to be done, by an entity in good faith for the purposes of executing this or any other Act, does not subject the entity personally to any action, liability, claim or demand.

Note—

See also section 181 for protection from liability for an officer of the Children’s Guardian.

(1)  Before the commencement of Part 4 of this Act, the Children’s Guardian must give to the Committee on Children and Young People a report, and copies of policies and procedures to be adopted by the Children’s Guardian, in relation to the exercise of the Children’s Guardian’s functions under this Act or another Act.

(2)  The report must include information about how perceived or actual conflicts of interest associated with the exercise of the Children’s Guardian’s functions under this Act or another Act are to be minimised or removed.

(3)  In this section—

Committee on Children and Young People means the Parliamentary Joint Committee constituted under section 36(1) of the Advocate for Children and Young People Act 2014.

(1)  In this Division, a reference to a Presiding Officer of a House of Parliament is a reference to the President of the Legislative Council or the Speaker of the Legislative Assembly.

(2)  If there is a vacancy in the office of President, the reference to the President is taken to be a reference to the Clerk of the Legislative Council.

(3)  If there is a vacancy in the office of Speaker, the reference to the Speaker is taken to be a reference to the Clerk of the Legislative Assembly.

(1)  The Children’s Guardian must—

(a)  prepare, within the period of 4 months after 30 June in each year, a report about the Children’s Guardian’s operations during the year ending on 30 June, and

(b)  give the report to the Presiding Officer of each House of Parliament.

(2)  A report by the Children’s Guardian under this section must include the following—

(a)  a description of the activities of the Children’s Guardian in relation to the functions of the Children’s Guardian,

(b)  details of each exemption given under section 30,

(c)  any recommendations for changes in the laws of the State, or for administrative action, the Children’s Guardian considers should be made as a result of the exercise of the functions of the Children’s Guardian,

(d)  an evaluation of the response of relevant entities to the recommendations of the Children’s Guardian,

(e)  a description of matters relating to reportable conduct, including trends, investigations and reports,

(f)  a description of the work and activities of Official Community Visitors, including information about—

(i)  the number of referrals made by the Children’s Guardian under section 150, and

(ii)  the outcome of an investigation by the Children’s Guardian arising from a report by an Official Community Visitor,

(g)  the number of investigations or determinations, in relation to reportable allegations or reportable convictions, that have not been completed by a relevant entity or the Children’s Guardian within 6 months after the commencement of the investigation or determination,

(h)  the number of persons on the residential care workers register kept under section 85(1)(b) who have a reportable conduct flag noted, if the investigation or determination has not been completed by a relevant entity or the Children’s Guardian within 6 months after the commencement of the investigation or determination,

(i)  copies of policies and procedures to be adopted by the Children’s Guardian, in relation to the exercise of the Children’s Guardian’s functions under this Act or another Act, and information about how perceived or actual conflicts of interest associated with the exercise of the functions are to be minimised or removed.

(3)  Despite subsection (2), the report on the work and activities of Official Community Visitors may be a separate annual report.

(1)  The Children’s Guardian may—

(a)  prepare a special report on a matter relating to the functions of the Children’s Guardian, and

(b)  give the report to the Presiding Officer of each House of Parliament.

(2)  Also, the Children’s Guardian, if requested by the Minister—

(a)  must prepare a special report on a matter relating to a function of the Children’s Guardian, other than a function under Part 4, and

(b)  may prepare a special report on a matter relating to a function of the Children’s Guardian under Part 4.

(3)  A special report prepared at the request of the Minister may be given by the Children’s Guardian to the Presiding Officer of each House of Parliament within 6 months after giving the report to the Minister.

(1)  The Children’s Guardian—

(a)  must give the Minister a draft of each of the reports to be given to the Presiding Officers under this Division, other than a special report mentioned in section 139(2)(b), and

(b)  may give the Minister a draft of a special report to be given to the Presiding Officers mentioned in section 139(2)(b).

(2)  A draft report that is required to be given to the Minister under subsection (1) must be given to the Minister at least one month, or a shorter period agreed by the Minister, before the report is given to the Presiding Officers.

(3)  The Minister may—

(a)  give the Children’s Guardian comments about a draft report, and

(b)  require the Children’s Guardian to consult further in relation to the report.

(4)  The Children’s Guardian is not required to amend the report because of comments made by the Minister but must, before finalising the report and giving it to the Presiding Officers, consider the comments.

(1)  A copy of a report, given to the Presiding Officer of a House of Parliament under this Division, is to be laid before the House within 15 sitting days of the House after it is received by the Presiding Officer.

(2)  The Children’s Guardian may include a recommendation that the report be made public.

(3)  If a report includes a recommendation by the Children’s Guardian that the report be made public, the Presiding Officer of a House of Parliament given the report under this Division must, within 14 days after receiving the report, make it public whether or not the House is in session and whether or not the report has been laid before the House.

(4)  If a report is made public by a Presiding Officer of a House of Parliament before it is laid before the House, it attracts the same privileges and immunities as if it had been laid before the House.

(5)  A Presiding Officer need not inquire whether all or any conditions precedent have been satisfied in relation to a report given to the Presiding Officer under this Division.

(6)  The Government Sector Finance Act 2018 is, in its application to annual reporting information prepared for the Children’s Guardian, modified to the extent necessary for the purposes of this Part.

s 141: Am 2018 No 70, Sch 4.16 (subst 2019 No 25, Sch 5.22).

The objects of this Part are—

(a)  to protect and promote the rights of children in visitable services, and

(b)  to protect children from abuse, neglect and exploitation.

In this Part—

child in care means a child under the age of 18 years—

(a)  under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998, or

(b)  for whom the Secretary or a designated agency has responsibility due to the operation of section 49 of the Children and Young Persons (Care and Protection) Act 1998, or

(c)  who is a protected person under section 135A(3) of the Children and Young Persons (Care and Protection) Act 1998, or

(d)  who is the subject of an out-of-home care arrangement under this Act or under the Children and Young Persons (Care and Protection) Act 1998, or

(d1)  who is the subject of an arrangement for specialised substitute residential care, or

(e)  who is the subject of a sole parental responsibility order made under section 149 of the Children and Young Persons (Care and Protection) Act 1998, as in force immediately before its repeal by the Child Protection Legislation Amendment Act 2014, or

(f)  who is otherwise in the care of a service provider.

service includes a statutory or other function, and providing a service includes exercising such a function.

service provider means—

(a)  the Department, or

(b)  an implementation company under the National Disability Insurance Scheme (NSW Enabling) Act 2013 while the company is a public sector agency of the State under that Act, or

(c)  the Minister, or

(d)  an authorised carer or designated agency, or

(e)  a person or organisation funded, authorised or licensed by the Children’s Guardian or the Minister to provide a service, or

(f)  a person or organisation prescribed by the regulations.

visitable service means—

(a)  an accommodation service where a child in care using the service is in the full-time care of the service provider, or

(b)  a service prescribed by the regulations as a visitable service.

s 143: Am 2022 No 33, Sch 1[30].

(1)  The Minister may, on the recommendation of the Children’s Guardian, appoint a person as an Official Community Visitor if the person, in the opinion of the Minister—

(a)  has appropriate knowledge and expertise in the matters relating to children in care, and

(b)  has a commitment to the objects of this Act and the following Acts—

(i)  the Adoption Act 2000,

(ii)  the Children and Young Persons (Care and Protection) Act 1998,

(iii)  the Children (Education and Care Services) Supplementary Provisions Act 2011,

(iv)  the Disability Inclusion Act 2014,

(v)  the Community Welfare Act 1987,

(vi)  the Community Services (Complaints, Reviews and Monitoring) Act 1993,

(vii)  the Guardianship Act 1987, and

(c)  has skills in the solving of problems about access to, and the use of, services for children in care, and

(d)  is not employed within the Department or the Office of the Children’s Guardian.

(2)  An Official Community Visitor holds office for the term, not exceeding 3 years, stated in the instrument of appointment, and is eligible for re-appointment.

(3)  A person may not be appointed as an Official Community Visitor for consecutive terms totalling more than 6 years.

(4)  The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to an Official Community Visitor.

(5)  An Official Community Visitor is not a separate public sector agency and is to be regarded as part of the Department for the purposes of the Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002.

(6)  The Minister may, on the recommendation of the Children’s Guardian, remove an Official Community Visitor from office for incompetence, incapacity or misbehaviour.

(7)  To remove any doubt, an Official Community Visitor who has a disability (other than mental incapacity) may not be removed from office under subsection (6) on the ground of incapacity unless the disability renders the Official Community Visitor incapable of performing the functions of an Official Community Visitor.

(1)  An Official Community Visitor may—

(a)  enter and inspect a place where a visitable service is provided at a reasonable time, and

(b)  confer alone with a child who is resident or person employed at the visitable service, and

(c)  inspect a document held at a visitable service, if the document relates to the operation of a visitable service, having regard to the wishes of a child resident at the visitable service to whom the document relates, and

(d)  provide the Minister and the Children’s Guardian with advice or reports on any matters relating to the conduct of a visitable service, and

(e)  inform the Minister and the Children’s Guardian on matters affecting the welfare, interests and conditions of children using visitable services, and

(f)  encourage the promotion of legal and human rights of children using visitable services, including the right to privacy, confidentiality, adequate information and consultation in relation to visitable services and the right to complain, and

(f1)  provide information about the Child Safe Standards to assist both the visitable services and the children using the services, and

(g)  consider matters raised by children using visitable services, staff of providers of visitable services and people having a genuine concern for the welfare, interests and conditions of children using visitable services, and

(h)  provide information about independent advocacy services to help children in the presentation of a grievance or matter of concern and, in appropriate cases, assist children to obtain the services, and

(i)  facilitate, if reasonable and practicable, the early and speedy resolution of grievances or matters of concern affecting children using visitable services by referring grievances or matters to the providers of the relevant services or other appropriate bodies, and

(j)  exercise functions prescribed by the regulations for the purposes of this section.

(2)  An Official Community Visitor must, in exercising a function under this section, act in a manner that preserves, as far as possible, the privacy of each child resident at the premises at which a visitable service is provided.

s 145: Am 2021 No 30, Sch 1[11].

(1)  The Children’s Guardian has a general oversight and co-ordination role in relation to Official Community Visitors and may determine priorities for the services to be provided by Official Community Visitors.

(2)  The Children’s Guardian may convene meetings of Official Community Visitors, and take other action, as may be necessary for the exercise of the Children’s Guardian’s functions.

(3)  At least one meeting is to be held each calendar year.

(1)  An Official Community Visitor may make a report to the Children’s Guardian about a child in care if the Official Community Visitor reasonably suspects the child’s safety, welfare or wellbeing is at risk.

(2)  The report does not need to be in writing.

(3)  The Children’s Guardian may make preliminary inquiries for the purposes of deciding how to deal with a report and may request further information from the Official Community Visitor making the report.

(4)  The Children’s Guardian may, in respect of a report—

(a)  conduct an investigation, or

(b)  make a referral to an entity, or

(c)  decline to take action on the report.

(5)  If an Official Community Visitor, acting in good faith, makes a report to the Children’s Guardian under this section, the person is not liable to civil or criminal action, or disciplinary action, for making the report.

(6)  The Children’s Guardian may, at the Children’s Guardian’s own initiative, decide to deal with a matter as a report under this section if the matter relates to a child in care that the Children’s Guardian reasonably suspects is not safe, or if the Children’s Guardian has concerns for the welfare or wellbeing of the child.

Schedule 2 provides for powers that may be exercised by the Children’s Guardian or an authorised person under this Act in relation to an investigation under this Part.

(1)  For the purposes of an investigation of a report under section 147, the Children’s Guardian may conduct an inquiry.

(2)  Schedule 3 provides for powers that may be exercised by the Children’s Guardian for the inquiry.

(1)  This section applies if the Children’s Guardian is of the opinion that a report, or part of a report, given under section 147 constitutes a report, complaint or other matter that may be made to one or more of the following entities—

(a)  the Commissioner of the NDIS Quality and Safeguards Commission under the National Disability Insurance Scheme Act 2013 of the Commonwealth,

(b)  the Ageing and Disability Commissioner under the Ageing and Disability Commissioner Act 2019,

(c)  the Secretary,

(d)  the Ombudsman,

(e)  an entity prescribed by the regulations.

(2)  The Children’s Guardian must refer the report, or the part of the report, to the entity.

(3)  The Children’s Guardian must determine, with the entity the report is referred to, the most appropriate entity to conduct the investigation of the report.

(4)  Despite subsection (3), if the Children’s Guardian is of the opinion that conducting an investigation may be necessary to protect the safety, welfare or wellbeing of a child, or class of children, the Children’s Guardian may conduct an investigation of the report referred to the entity, including in consultation with the entity.

(1)  This section applies to information of a class that the Children’s Guardian has determined is information relevant to the exercise of the functions of the Children’s Guardian in connection with—

(a)  the accreditation of designated agencies, or

(b)  specialised substitute residential care.

(2)  An Official Community Visitor is required to provide to the Children’s Guardian, and the Children’s Guardian is authorised to collect and use, information belonging to a class referred to in subsection (1), if the Children’s Guardian has notified the Official Community Visitor the information belongs to the class.

(3)  A provision of an Act or law that prohibits or restricts the disclosure of information does not operate to prevent the provision of information, or affect a duty to provide information, under this section.

s 151: Am 2022 No 33, Sch 1[31].

(1)  A person must not take or threaten to take detrimental action—

(a)  against an Official Community Visitor, or

(b)  in respect of a person because that person, in good faith, makes, or proposes to make, a complaint under this Part.

Maximum penalty—50 penalty units or imprisonment for 12 months, or both.

(2)  For subsection (1)(b), a complaint is not made in good faith if—

(a)  the report, complaint or notification was made or proposed in bad faith, or

(b)  a material allegation was known, by the person giving the report, complaint or notification, to be false.

(3)  In this section—

community service has the same meaning as in the Community Services (Complaints, Reviews and Monitoring) Act 1993.

complaint includes providing information, documents or evidence in relation to a complaint under this Part.

detrimental action means action causing, comprising or involving any of the following—

(a)  injury, damage or loss,

(b)  intimidation or harassment,

(c)  discrimination, disadvantage or adverse treatment in relation to employment,

(d)  dismissal from, or prejudice in, employment,

(e)  prejudice in the provision of a community service,

(f)  disciplinary proceedings.

If the Children’s Guardian reasonably believes a child safe organisation’s systems, policies or processes do not reflect or implement the Child Safe Standards, the Children’s Guardian may issue a compliance notice requiring the organisation to—

(a)  take the action specified in the notice, and

(b)  provide the Children’s Guardian with evidence it has done so.

s 152A: Ins 2021 No 30, Sch 1[12].

(1)  A compliance notice must be in writing and must include—

(a)  the reasons for the belief the relevant child safe organisation’s systems, policies or processes do not reflect or implement the Child Safe Standards, and

(b)  the risks to children that arise because the organisation’s systems, policies or processes do not reflect or implement the Child Safe Standards, and

(c)  the action the organisation is required to take, and

(d)  the period of time within which the organisation is required to take the action, and

(e)  a statement that failure to comply with a compliance notice is an offence.

(2)  The period of time for the organisation to take the action required by the compliance notice must be reasonable in all the circumstances.

s 152B: Ins 2021 No 30, Sch 1[12].

(1)  A child safe organisation that is issued a compliance notice may, within 28 days of receiving the notice, request the Children’s Guardian to review the decision to issue the notice.

(2)  The Children’s Guardian must comply with a request made under subsection (1) unless, in the opinion of the Children’s Guardian, the request is frivolous or vexatious.

(3)  An organisation that requests a review may provide the Children’s Guardian with the information the organisation considers relevant to the review.

(4)  An organisation that requests a review is not required to comply with the notice while the review is underway.

(5)  Following a review, the Children’s Guardian may—

(a)  confirm the decision to issue the compliance notice, or

(b)  withdraw the compliance notice.

(6)  If the review confirms the decision to issue the compliance notice, the Children’s Guardian must give the organisation a reasonable time to comply with the notice, being a period of not less than 28 days after the compliance notice is given to the organisation.

(7)  If, following the review, the Children’s Guardian withdraws the notice, the notice may be reissued—

(a)  in substantially the same form, or

(b)  in a different form.

s 152C: Ins 2021 No 30, Sch 1[12].

(1)  A child safe organisation that has been issued with a compliance notice may apply to the Children’s Guardian for an extension of time for compliance.

(2)  The organisation may only apply for an extension of time if the application is made before the end of the period of time it is applying to extend.

(3)  The Children’s Guardian may grant an application made under this section if the Children’s Guardian considers—

(a)  the organisation has taken suitable steps to address the risks to children identified in the notice, and

(b)  there are special circumstances justifying the extension of time.

s 152D: Ins 2021 No 30, Sch 1[12].

(1)  The Children’s Guardian is to maintain a list of compliance notices that are in effect and make the list publicly available on the Office of the Children’s Guardian’s website.

(2)  A child safe organisation that produces an annual report must include in the report the details of a compliance notice that applied to the organisation during the period covered by the report.

(3)  This section does not apply to a compliance notice until—

(a)  the expiry of the 28 day period in which the organisation may apply for a review of the decision to issue the notice, or

(b)  the conclusion of a review under section 152C.

s 152E: Ins 2021 No 30, Sch 1[12].

(1)  A child safe organisation that receives a compliance notice must comply with the notice.

Maximum penalty—

(a)  for a corporation—250 penalty units, or

(b)  otherwise—50 penalty units.

(2)  If a child safe organisation is not a person the reference in subsection (1) to a child safe organisation is to be read as a reference to the head of a child safe organisation.

s 152F: Ins 2021 No 30, Sch 1[12].

(1)  Instead of issuing a compliance notice under Division 1, the Children’s Guardian may accept an enforceable undertaking from a child safe organisation.

(2)  An enforceable undertaking is an undertaking from the organisation under which the organisation agrees to take specific action by a specific date.

(3)  An enforceable undertaking must be in writing and be signed by the head of the organisation.

s 152G: Ins 2021 No 30, Sch 1[12].

(1)  This section applies if a child safe organisation has entered into an enforceable undertaking.

(2)  The organisation may apply to the Children’s Guardian to amend the undertaking.

(3)  The organisation may only apply to amend an undertaking if the application is made before the date by which the organisation had agreed to undertake the action specified in the undertaking.

(4)  The Children’s Guardian may only agree to amendment of an undertaking if the Children’s Guardian considers—

(a)  the organisation has taken suitable steps to address the risks to children that led to the undertaking, and

(b)  amendment of the undertaking is appropriate in all the circumstances.

s 152H: Ins 2021 No 30, Sch 1[12].

(1)  The Children’s Guardian is to maintain a list of enforceable undertakings that are in effect and make the list publicly available on the Office of the Children’s Guardian’s website.

(2)  A child safe organisation that produces an annual report must include in the report the details of an enforceable undertaking that applied to the organisation during the period covered by the report.

s 152I: Ins 2021 No 30, Sch 1[12].

(1)  A child safe organisation that enters into an enforceable undertaking must comply with the undertaking.

Maximum penalty—

(a)  for a corporation—500 penalty units, or

(b)  otherwise—100 penalty units.

(2)  If a child safe organisation is not a person the reference in subsection (1) to a child safe organisation is to be read as a reference to the head of a child safe organisation.

s 152J: Ins 2021 No 30, Sch 1[12].

The Children’s Guardian must inform the Minister when taking enforcement action under this Part against a child safe organisation that is a public authority under section 14, definition of public authority, paragraphs (a), (b), (d) or (e).

s 152K: Ins 2021 No 30, Sch 1[12].

(1)  A person who discloses information obtained in connection with the administration or execution of this Act is guilty of an offence unless the disclosure is made—

(a)  with the consent of the person from whom the information was obtained, or

(b)  in connection with the administration or execution of this Act or the regulations, or

(c)  for the purposes of legal proceedings, or a report about legal proceedings, arising out of this Act or the regulations, or

(d)  in accordance with a requirement imposed under the Ombudsman Act 1974, or

(e)  with a lawful excuse.

Maximum penalty—10 penalty units or imprisonment for a period not exceeding 12 months, or both.

(2)  It is not an offence under this section for the Children’s Guardian to disclose information to an Official Community Visitor, who has made a report under section 147, concerning action taken as a consequence of the report if the Children’s Guardian is of the opinion that disclosure of the information is not inconsistent with the objects and principles of this Act.

(1)  The Children’s Guardian may enter into arrangements with a researcher or a research organisation for the purposes of permitting the disclosure of information to the researcher or research organisation (including health information and personal information) that is held by the Children’s Guardian, a designated agency or an accredited adoption service provider.

(2)  The Children’s Guardian is not to enter into arrangements under this section unless satisfied that the arrangements will ensure—

(a)  reasonable steps will be taken to de-identify information disclosed under the arrangements, and

(b)  information disclosed under the arrangements will be treated by the researcher or research organisation as confidential, and

(c)  as far as reasonably practicable, no publication that uses or is based on information disclosed under the arrangements will enable the identity of an affected person to be ascertained, and

(d)  as far as is reasonably practicable, personal information disclosed under the arrangements will be used or dealt with in accordance with the information protection principles set out in sections 12, 17, 18 and 19 of the Privacy and Personal Information Protection Act 1998 as those principles would apply if the researcher or research organisation were a public sector agency.

Note—

The Privacy and Personal Information Protection Act 1998 requires public sector agencies to deal with personal information in accordance with the information protection principles set out in that Act.

(3)  A disclosure of information made in good faith under the arrangements does not—

(a)  constitute a contravention of a provision as to confidentiality in this Act, and

(b)  constitute a contravention of the Health Records and Information Privacy Act 2002 or the Privacy and Personal Information Protection Act 1998.

(4)  The provisions of the Health Records and Information Privacy Act 2002 apply to health information disclosed under the arrangements as if the researcher or research organisation were a private sector person (within the meaning of that Act).

Note—

The Health Records and Information Privacy Act 2002 requires a private sector person that collects, holds or uses health information to comply with the health privacy principles set out in that Act.

(5)  In this section—

health information has the same meaning as in the Health Records and Information Privacy Act 2002.

personal information has the same meaning as in the Privacy and Personal Information Protection Act 1998.

research organisation means an organisation prescribed by the regulations or under the Adoption Act 2000.

(1)  A person must not, in relation to the administration of this Act or the regulations, give information that the person knows is false or misleading in a material particular to the Children’s Guardian, an officer of the Children’s Guardian or an authorised person.

Maximum penalty—10 penalty units.

(2)  Subsection (1) applies whether or not the information was given in response to a specific power under this Act.

(3)  Subsection (1) does not apply to a document if the person, when giving the document—

(a)  tells the Children’s Guardian, officer of the Children’s Guardian or authorised person, to the best of the person’s ability, how it is false or misleading, and

(b)  if the person has, or can reasonably obtain, the correct information, gives the correct information.

(4)  Also, subsection (1) does not apply to information given under section 112.

Note—

See section 112(3) in relation to false and misleading information given under that provision.

(5)  In this section—

information includes a statement, document or notification.

(1)  A person must not access information stored by the Children’s Guardian unless the person is authorised, approved or delegated to perform a function of the Children’s Guardian.

Maximum penalty—10 penalty units.

(2)  Subsection (1) does not apply to—

(a)  stored information that cannot be used to discover the identity of a person, or

(b)  accessing stored information if the access is authorised under another law.

In this Division—

corporation and director have the same meaning as in the Corporations Act 2001 of the Commonwealth.

s 163: Am 2021 No 30, Sch 1[13] [14].

For this Division, an executive liability offence is an offence against any of the following provisions of this Act that is committed by a corporation—

(a), (b)    (Repealed)

(c)  section 92(1),

(d)  section 92(2),

(e)  section 92(3),

(f)  section 97(2),

(g)  section 106,

(g1)  section 152F,

(g2)  section 152J,

(h)  section 159(1),

(i)  section 161(1),

(j)  section 162(1),

(k)  section 180(2),

(l)  Schedule 2, clause 15(1),

(m)  Schedule 2, clause 16(1).

s 164: Am 2021 No 30, Sch 1[15]; 2022 No 33, Sch 1[5].

(1)  A person commits an executive liability offence if—

(a)  a corporation commits an executive liability offence, and

(b)  the person is—

(i)  a director of the corporation, or

(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the executive liability offence, and

(c)  the person—

(i)  knows or ought reasonably to know that the executive liability offence (or an offence of the same type) would be or is being committed, and

(ii)  fails to take all reasonable steps to prevent or stop the commission of that offence.

Maximum penalty—

(a)  for an offence under section 161(1)—100 penalty units, or

(b)  for an offence under section 162(1)—50 penalty units, or

(c)  otherwise—the maximum penalty for the executive liability offence if committed by an individual.

(2)  This section does not affect the following—

(a)  the liability of the corporation for the executive liability offence, and applies whether or not the corporation is prosecuted for, or convicted of, the executive liability offence,

(b)  the application of any other law relating to the criminal liability of persons, whether or not directors or other managers of the corporation, who are accessories to the commission of the executive liability offence or are otherwise concerned in, or party to, the commission of the executive liability offence.

(3)  In this section—

reasonable steps, in relation to the commission of an executive liability offence, includes, but is not limited to, action of the following kinds that is reasonable in all the circumstances—

(a)  action towards—

(i)  assessing the corporation’s compliance with the provision creating the executive liability offence, and

(ii)  ensuring that the corporation arranged regular professional assessments of its compliance with the provision,

(b)  action towards ensuring that the corporation’s employees, agents and contractors are provided with information, training, instruction and supervision appropriate to them to enable them to comply with the provision creating the executive liability offence so far as the provision is relevant to them,

(c)  action towards ensuring that—

(i)  the plant, equipment and other resources, and

(ii)  the structures, work systems and other processes,

relevant to compliance with the provision creating the executive liability offence are appropriate in all the circumstances,

(d)  action towards creating and maintaining a corporate culture that does not direct, encourage, tolerate or lead to non-compliance with the provision creating the executive liability offence.

(1)  The prosecution bears the legal burden of proving the elements of an executive liability offence.

(2)  An executive liability offence can only be prosecuted by a person who can bring a prosecution for the executive liability offence.

(1)  For the purposes of this section, a corporate offence is an offence against this Act or the regulations that is capable of being committed by a corporation, whether or not it is an executive liability offence.

(2)  A person commits an offence against this section if—

(a)  a corporation commits a corporate offence, and

(b)  the person is—

(i)  a director of the corporation, or

(ii)  an individual who is involved in the management of the corporation and who is in a position to influence the conduct of the corporation in relation to the commission of the corporate offence, and

(c)  the person—

(i)  aids, abets, counsels or procures the commission of the corporate offence, or

(ii)  induces, whether by threats or promises or otherwise, the commission of the corporate offence, or

(iii)  conspires with others to effect the commission of the corporate offence, or

(iv)  is in any other way, whether by act or omission, knowingly concerned in, or party to, the commission of the corporate offence.

Maximum penalty—the maximum penalty for the corporate offence if committed by an individual.

(3)  This section does not affect the following—

(a)  the liability of the corporation for the corporate offence, and applies whether or not the corporation is prosecuted for, or convicted of, the corporate offence,

(b)  the application of any other law relating to the criminal liability of any persons (whether or not directors or other managers of the corporation) who are concerned in, or party to, the commission of the corporate offence.

(1)  Without limiting a law or practice regarding the admissibility of evidence, evidence that an officer, employee or agent of a corporation, while acting in that capacity, had, at any particular time, a particular state of mind, is evidence that the corporation had that state of mind.

(2)  In this section—

state of mind, of a person, includes—

(a)  the knowledge, intention, opinion, belief or purpose of the person, and

(b)  the person’s reasons for the intention, opinion, belief or purpose.

(1)  A person must not obstruct—

(a)  an authorised person, or a person helping an authorised person, exercising a function under Schedule 2, unless the person has a reasonable excuse, or

(b)  a person in the exercise of the person’s functions under this Act.

Maximum penalty—10 penalty units.

(2)  If a person has obstructed an authorised person, a person helping an authorised person, or a person exercising a function under this Act (each a relevant person), and the relevant person decides to proceed with the exercise of the function, or to continue to perform the functions, the relevant person must give a warning to the person obstructing the relevant person that—

(a)  it is an offence to cause an obstruction unless the person has a reasonable excuse, and

(b)  the relevant person considers the person’s conduct an obstruction.

(3)  In this section—

obstruct includes assault, hinder, resist, attempt to obstruct and threaten to obstruct.

(1)  Proceedings for an offence under this Act or the regulations may be commenced not later than 6 months after the offence was alleged to have been committed.

(2)  Proceedings for an offence against this Act or the regulations may also be commenced within but not later than 6 months after the Children’s Guardian became aware of the alleged offence.

(3)  If subsection (2) is relied on for the purpose of commencing proceedings for an offence, the court attendance notice or application must contain particulars of the date on which evidence of the alleged offence first came to the attention of the Children’s Guardian and need not contain particulars of the date on which the offence was alleged to have been committed.

(4)  The date on which evidence first came to the attention of the Children’s Guardian is the date stated in the court attendance notice or application, unless the contrary is established.

(5)  This section applies despite anything in the Criminal Procedure Act 1986 or any other Act.

(6)  In this section—

evidence of an offence means evidence of an act or omission constituting the offence.

(1)  Proceedings for an offence against this Act or the regulations may be dealt with summarily before the Local Court or before the Supreme Court in its summary jurisdiction.

(2)  If proceedings for an offence against this Act or the regulations are taken before the Local Court, the maximum monetary penalty the Local Court may impose is, despite any provision of this Act to the contrary, 200 penalty units or the maximum monetary penalty provided by this Act for the offence, whichever amount is the smaller.

(3)  If proceedings for an offence against this Act or the regulations are taken before the Supreme Court, the Supreme Court may impose a penalty not exceeding the maximum penalty provided by this Act or the regulations for the offence.

(1)  An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.

(2)  A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.

(3)  The Fines Act 1996 applies to a penalty notice issued under this section.

Note—

The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount stated in the notice and is not liable to any further proceedings for the alleged offence.

(4)  The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations, not exceeding the maximum amount of penalty that could be imposed for the offence by a court.

(5)  This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.

(6)  In this section—

authorised officer means—

(a)  a police officer, or

(b)  a person employed in the Office of the Children’s Guardian who is authorised in writing by the Children’s Guardian as an authorised officer for the purposes of this section.