Queensland Bills Explanatory Notes Queensland Bills Explanatory Notes[Index] [Search] [Download] [Bill] [Help]
1
Child Safety (Carers) Amendment Bill 2006
Child Safety (Carers) Amendment Bill
2006
Explanatory Notes
General Outline
Short Title
The short title of the Bill is the Child Safety (Carers) Amendment Bill
2006.
Policy Objectives of the Legislation
The transfer of criminal history screening
The objective of the Bill is to transfer criminal history screening of certain
people involved in providing care services to children under the Child
Protection Act 1999 from the Department of Child Safety (the Department)
to the Commission for Children and Young People and Child Guardian (the
Commission). The Bill expands the categories of regulated employment
and regulated businesses currently subject to the Commission's
employment screening (blue card) regime so as to include the following
"relevant persons":
� foster and kinship carers and their adult household members
(regulated employment);
� nominees and directors of licensed care services (regulated
business);
� persons whose functions of employment are carried out inside a
licensed residential facilities (regulated employment);
� persons employed by licensed care services supporting
placements with approved carers (regulated employment);
� persons whose usual activities of their business involve, or are
likely to involve providing services inside a licensed residential
facility (regulated employment).
2
Child Safety (Carers) Amendment Bill 2006
The Bill preserves the role of the Department as being responsible for other
stages of assessment and final approval of carers and licensed care services.
The blue card represents the benchmark for determining the
appropriateness of individuals to engage in child related employment. The
application of the blue card regime, as a minimum screening threshold for
relevant persons will enhance consistency between employment screening
for persons providing care to children on behalf of the chief executive of
the Department and persons engaged in other child related employment.
On 24 August 2005, Parliament passed the Child Safety Legislation
Amendment Act 2005 amending the Child Protection Act 1999. The
amendments included provisions for the regulation of all carers and aligned
the powers of the chief executive to obtain police information about
potential carers with the information obtained by the commissioner in the
blue card screening process. The Bill repeals those amendments which will
be made redundant with the transfer of criminal history screening of
relevant persons to the Commission.
Part 3B, Division 3 of the Child Safety Legislation Amendment Act 2005
allows the chief executive to enter into a care agreement with parental
agreement to place a child for a short time in out-of-home care. This may
occur if the child is assessed as a child in need of protection and needs
ongoing help under the Child Protection Act 1999. The Bill extends the
new Part 3B to allow the chief executive to enter into a care agreement with
parental agreement to place a child in out-of-home care for no more than
thirty days, during the assessment and investigation phase. The extension
of Part 3B allows the department to place a child in out-of-home care with
parental agreement to ensure the child's immediate safety, while the child's
protective and care needs are being assessed. The amendment does not
have the effect of transferring custody of the child to the chief executive.
The Bill amends the Child Safety Legislation Amendment Act 2005 to
include a further period of time between the commencement date, when
administratively approved relative carers become approved kinship carers
under the Act, and the time at which these approvals will begin to expire.
The objective of the amendment to the transitional provisions is to allow
for a further period of two months before the department is required to
assess applications from kinship carers for renewal of their approvals.
The Bill amends the Child Protection Act 1999 to include the principal of a
non-state school as `prescribed entity' which can give and receive relevant
information under Part 4, chapter 5A of the Act. Currently non-state
schools and other non-government organisations are not able to share
information directly with each other, as both are service providers for the
3
Child Safety (Carers) Amendment Bill 2006
purpose of the Act. The amendment will allow non-state schools to share
relevant child protection information with other non-state schools and non-
government organisations.
The Bill also amends the Commission for Children and Young People and
Child Guardian Act 2000 to introduce categories of regulated employment
and regulated business to include "relevant persons". Amendments are also
made to accommodate the chief executive's necessity to be notified in
certain circumstances relating to nominees and directors of licensed care
services. Additional notifications by the commissioner are also provided
for in light of the fact that adult members of carers' households will also be
able, in specified circumstances, to commence regulated employment as
volunteers after applying for a blue card but before a prescribed notice is
issued by the commissioner. All relevant persons will be retrospectively
screened but transitional provisions will allow these persons 6 months to
make application for a blue card.
Miscellaneous Amendments to the Commission for Children and
Young People and Child Guardian Act 2000
Due to an oversight the Commission for Children and Young People and
Child Guardian Amendment Act 2004 did not include a transitional
provision to outline the effect, if any, of the amendments in relation to:
(a) applications for suitability notices received by the Commissioner
prior to 17 January 2005, which were undecided at that date
("undecided applications for a suitability notice"); and
(b) assessments and applications as to whether or not a suitability
notice (issued prior to 17 January 2005) should be cancelled,
where the application or assessment relevant to the cancellation
of the suitability notice was commenced prior to 17 January
2005 and undecided at that date ("undecided assessments and
applications as to whether a suitability notice should be
cancelled").
Consequently the Bill aims to:
1. clarify the circumstances in which the amendments inserted by the
Commission for Children and Young People and Child Guardian
Amendment Act 2004 will apply to:
(a) applications for suitability notices received by the Commissioner prior
to 17 January 2005, which remain undecided at commencement of
this Bill ("outstanding applications for a suitability notice"); and
4
Child Safety (Carers) Amendment Bill 2006
(b) assessments and applications as to whether or not a suitability notice
(issued prior to 17 January 2005) should be cancelled, where the
application or assessment was commenced prior to 17 January 2005
and remained undecided at commencement of this Bill ("outstanding
assessments and applications as to whether a suitability notice should
be cancelled") and;
2. give certainty through validation to decisions made by the
Commissioner between 17 January 2005 and commencement of this
Bill, in relation to undecided applications for a suitability notice and
undecided assessments and applications as to whether a suitability
notice should be cancelled.
In addition the Bill also seeks to achieve the following objectives:
� to provide for the Commissioner to provide a report to the
Minister in relation to employment screening issues, including
the provision of details about individuals and their criminal
history, without being in breach of confidence; and
� to ensure that persons who are privy to such information shared
between the Commissioner and the Minister are bound by the
confidentiality provisions prescribed by the Commission for
Children and Young People and Child Guardian Act 2000; and
� to rectify current drafting anomalies in the Act to ensure clarity
in the Act.
The Acts amended are:
� Child Protection Act 1999
� Child Safety Legislation Amendment Act 2005
� Commission for Children and Young People and Child Guardian
Act 2000
Reasons for the Bill
The transfer of criminal history screening
During 2004-05 the Department of the Premier and Cabinet conducted an
employment screening review of child-related services and activities
delivered by government entities, with the objective of establishing a
minimum threshold for screening employees for government child-related
services.
5
Child Safety (Carers) Amendment Bill 2006
The Government decided to implement consistent criminal history
screening for child-related employment in government services and risk
management strategies for child-related and child-associated employment
in government services. Given the status of blue cards in the community as
the minimum requirement for working with children, Government decided
to transfer criminal history screening of relevant persons for the purposes
of carer approval and licensing of care services under the Child Protection
Act 1999 to the Commission.
During the development of the supporting policies for the Child Safety
Legislation Amendment Act 2005 a need was identified to extend the ability
of the chief executive to remove a child from their home with the parent's
agreement under a care agreement while the child's ongoing protective
needs are still being assessed. Without the amendment the department
would have to place a child who may be at risk of harm with parental
agreement in out-of-home care during the assessment and investigation
phase, under administrative policy. The Crime and Misconduct
Commission's Recommendation 7.11 (Protecting Children: An Inquiry
Into Abuse of Children in Foster Care) stipulated that voluntary placement
of children in care with the agreement of their parents, be regulated. The
amendment provides legislative requirements and safeguards for children
and families, when parents consent to a care agreement, and their children
are placed in out-of-home care without a court assessment order.
The transitional provisions in the Child Safety Legislation Amendment Act
2005 provide that carers who have been approved administratively as
relative carers will become kinship carers upon commencement of these
amendments. The transitional provision provides that as of the
commencement date, the approvals of all kinship carers who were
approved administratively more than two years before the commencement
date, will expire on the first anniversary of the day the approval was first
given, and the approvals of carers approved less than two years before the
commencement date will expire on the second anniversary of the day the
approval was first given to the relative carer. The transitional provisions do
not allow for the administratively approved relative carer to make a renewal
application before the kinship provisions have commenced. The
amendment to the transitional provision will set a fixed date in the Child
Safety Legislation Amendment Act 2005 as the date by which approvals, for
relative carers who have been administratively approved, will start to
expire.
Section 159M of the Child Protection Act 1999 allows relevant child
protection information to be shared among prescribed entities and between
prescribed entities and non-government organisations. The amendment will
6
Child Safety (Carers) Amendment Bill 2006
include the principal of a non-state school to be a `prescribed entity' to
allow the direct sharing of relevant child-protection information between a
non-state school and non-government organisations. The amendment will
allow principals to improve responses and services for children and young
people enrolled in their schools who are in need of protection and to fulfil
their duty of care to these children.
Miscellaneous Amendments to the Commission for Children and
Young People and Child Guardian Act 2000
The amendments to the Commission for Children and Young People and
Child Guardian Act 2000 are necessary to:
� address current drafting anomalies; and
� address the lack of transitional provisions inserted by the
Commission for Children and Young People and Child Guardian
Amendment Act 2004
Achieving the Objectives
The objectives of the Bill will be achieved in the following ways:
The transfer of criminal history screening
Establishing a legislative framework for the transfer of the criminal history
screening of relevant persons to the Commission. Key components of this
framework include:
� New categories of regulated employment and regulated businesses
under the Commission for Children and Young People and Child
Guardian Act 2000 will be created which will require the following
persons to undertake a working with children check and be issued
with a blue card:
� foster and kinship carers and adult members of their households;
� nominees and directors of licensed care services;
� persons whose usual functions of employment are carried out, or
likely to be carried out inside a licensed residential facility;
� persons whose usual functions of employment with a licensed
care service include, or are likely to include, supporting a
placement of a child with an approved carer; and
� persons carrying on businesses whose usual activities include, or
are likely to include, providing services or activities inside a
licensed residential facility;
7
Child Safety (Carers) Amendment Bill 2006
� The holding of a current positive prescribed notice (blue card), for
relevant persons will be a condition of approval as a foster or kinship
carer and for the licensing of care services under the Child Protection
Act 1999.
� Licences issued under the Child Protection Act 1999 will be
conditional upon relevant persons maintaining current blue cards that
are not suspended. In addition, the chief executive will need to be
satisfied, in order to grant a licence, that a nominee for a licence will
ensure compliance with all requirements of a regulated business and
employer of persons in regulated employment under the Commission
for Children and Young People and Child Guardian Act 2000.
� The chief executive will be the "employer" of foster and kinship carers
and adult members of their household for the purposes of the
Commission for Children and Young People and Child Guardian Act
2000.
� The chief executive will be notified of the issue of a prescribed notice,
the suspension of a blue card or the withdrawal of an application in
respect of a nominee or director of a licensed care service.
� The chief executive will continue to access the criminal histories of
persons approved as provisionally approved carers, members of their
households and new household members joining the household of
either carer applicants or already approved carers (foster and kinship).
New household members of foster and kinship carers will be required
to apply for and be issued with a blue card, but a check of their
criminal history initially by the chief executive will allow them to join
the household while their blue card application is being processed.
� To distinguish between the information the chief executive will obtain
from the police commissioner in relation to different groups of people
"police information" will be defined differently. For provisionally
approved carers, their household members and new household
members of foster and kinship carers, "police information" will be
criminal history and domestic violence history. For other relevant
persons, "police information" will be domestic violence history only.
� For the limited group of people about whom the chief executive seeks
criminal history information, there will no longer be an obligation on
the police commissioner to notify the chief executive if there is a
change in their "police information". This function of the police
commissioner will be covered by the Commission for Children and
Young Person and Child Guardian Act 2000 in relation to applicants
8
Child Safety (Carers) Amendment Bill 2006
for, or holders of, blue cards. As soon as the application for a blue
card is lodged with the commissioner and the commissioner has
requested information from the Queensland Police Service (QPS), the
daily monitoring by the QPS will ensure that information about
changes can be acted upon appropriately. The commissioner will be
obliged to notify the chief executive of particular changes, namely
charges for serious offences, so that the chief executive can then take
action to protect the child in the placement.
� The chief executive is required to suspend the authority of a foster or
kinship carer if the commissioner suspends the carer's blue card,
withdraws an application for a blue card or issues a negative notice.
The suspension of the carer's authority will continue until the
commissioner makes a decision about the suspension of the blue card
and/or a decision has been made following exercise of the person's
review (and appeal) rights in relation to the commissioner's decision.
If the person does not seek a review (or appeal) within the statutory
period, or the commissioner's decision is affirmed, the chief executive
must cancel the carer's authority.
� If the Commissioner withdraws an application for a blue card or
suspends or cancels the blue card of a member of a carer's household,
the chief executive will be required to suspend the carer's authority if
the person remains in the household. The suspension of the carer
authority continues until the commissioner makes a decision about the
suspension of the blue card and/or a decision has been made following
exercise of the person's review (and appeal) rights in relation to the
commissioner's decision. If the person does not seek a review (or
appeal) within the statutory period, or the commissioner's decision is
affirmed, the chief executive may then cancel the carer's authority.
However, the chief executive retains the ability to lift the suspension
on the carer authority if the person leaves the carer's household, i.e. is
no longer an adult household member.
� The chief executive is required to suspend the authority of a foster or
kinship carer if the commissioner issues a negative notice in relation
to an adult member of a carer's household under either section
102(6)(a) or section 119A of the Commission for Children and Young
People and Child Guardian Act 2000. The chief executive may
subsequently cancel the carer's authority. This would occur if the adult
member of the household has not left the household. However, the
chief executive must not suspend or cancel the carer's authority if the
adult member leaves the carer's household. If the chief executive
9
Child Safety (Carers) Amendment Bill 2006
suspends a carer's authority under this requirement, the chief
executive may lift the suspension if the person leaves the household.
� In the case of licensed care services, the chief executive must suspend
the licence if the commissioner suspends a nominee's or director's
blue card, withdraws an application for a blue card for a nominee or
director or issues a negative notice to a nominee or director and the
person continues to carry on a regulated business. The suspension of
the licence continues until the commissioner makes a decision about
the suspension of the blue card and/or a decision has been made
following exercise of the person's review (and appeal) rights in
relation to the commissioner's decision. If the person does not seek a
review (or appeal) within the statutory period, or the commissioner's
decision is affirmed, the chief executive may cancel the carer's
authority. However, the chief executive retains the ability to lift the
suspension on the licence if the nominee or director ceases carrying
on a regulated business.
� There will be additions to the existing grounds for the chief
executive's discretion to suspend or cancel an authority. A suspension
or cancellation may occur where the chief executive receives
information, either under the provisions requiring nominees and
carers to notify the chief executive about certain changes to a relevant
person's blue card status or, under provisions of the Commission for
Children and Young People and Child Guardian Act 2000 other than
information which will give rise to suspensions or cancellations
already described. The chief executive may also suspend or cancel an
authority if a relevant person required to have a blue card, does not
have a blue card.
Including notification obligations and information sharing provisions.
Elements of the provisions include:
� All persons engaged in regulated employment under the
Commission for Children and Young People and Child Guardian
Act 2000 are obliged to notify their employer (in this case either
the chief executive or the licensed care service) of any changes to
their criminal histories. Likewise, persons carrying on a
regulated business (in this case licensed care services) are
obliged to notify the commissioner if they have a change in their
criminal histories.
� Provisionally approved carers and foster and kinship carers who
have "new" adult household members (persons who join the
household after the application is made or after an authority is
10
Child Safety (Carers) Amendment Bill 2006
issued) will be obliged under the Child Protection Act 1999 to
notify the chief executive of relevant changes in criminal history.
� In addition all approved carers (foster, kinship and provisionally
approved) are required to notify the chief executive about any
changes to their domestic violence or traffic history or those of
their adult household members (which they are aware of or
reasonably suspect). Likewise persons engaged in relation to the
provision of care services by a licensed care service and directors
of a licensed care services are obliged to report changes in their
domestic violence or traffic information to the nominee who in
turn must provide this information to the chief executive.
� Nominees will retain an obligation under the Child Protection
Act 1999 to notify the chief executive of changes in their
domestic violence and traffic histories. Additionally, under the
Child Protection Act 1999 they will now be required to notify the
chief executive of certain changes in their criminal history
requiring their blue card to be reassessed. Likewise, a director of
a licensed care service will be obliged to notify their nominee of
changes in their domestic violence and traffic histories or of
certain changes in their criminal history requiring their blue card
to be reassessed. The nominee will, in turn, be required to
provide this information to the chief executive.
� Nominees will also be required to notify the chief executive if
they become aware that an application for a blue card lodged on
behalf of a manager or employee engaged in regulated
employment is withdrawn or is made because of a change in the
person's criminal history. Further, nominees will be required to
notify the chief executive if they become aware a manager or
employer is charged with an excluding offence, convicted of a
serious offence or issued with a negative prescribed notice.
� Provision will be made for the chief executive and the
commissioner to establish an arrangement for the administrative
exchange of information held by the commissioner about
applicants for, or holders of, certificates of approval or licensed
care services as far as that exchange is permitted by the
Commission for Children and Young People and Child Guardian
Act 2000 and the Child Protection Act 1999. It is anticipated that
this arrangement will be in the form of a memorandum of
understanding.
11
Child Safety (Carers) Amendment Bill 2006
Enabling extension of the period allowed for the chief executive to make a
decision to approve a carer and licensed care service to ensure applications
are not deemed to be refused, for example, because the blue card
application takes longer than usual to process:
� The Child Protection Act 1999 provides that an application for an
authority is deemed to be refused if the chief executive has not
made a decision within 90 days. The Bill will allow for the chief
executive to agree with the applicant prior to the end of the 90
days for this period to be extended if required. This will allow for
those cases where the chief executive has not been able to
complete the decision-making process or is awaiting the outcome
of an application for a blue card. If a decision is not made by the
end of the extended period the deemed refusal provision will then
apply.
Include transitional provisions for the new screening regime:
� The new screening regime will include retrospective screening of
current carers and licence holders under the Commission for
Children and Young People and Child Guardian Act 2000.
However transitional provisions are inserted into the Bill to
provide a six-month period for applications to be lodged and for
persons to be able to continue engaging in regulated employment
or carrying on regulated business until their application is
withdrawn or decided.
� Applications for authorities under the Child Protection Act 1999
made, but not decided, before commencement will not be subject
to the new blue card requirements for a decision to grant or
refuse an authority. However, persons who are adult members of
the applicant's household when approved will become subject to
a transitional provision and will have to lodge an application for
a blue card within six months of commencement.
Provide legislative requirements and safeguards for children and families,
when parents consent to a care agreement, and their children are placed
into out-of-home care without a court assessment order.
� Limited intervention through a voluntary arrangement with a
child's parents occurs during the investigation and assessment
phase under current administrative policy. This type of
intervention is limited to taking any action that is necessary to
ensure the child's immediate safety while a notification is
investigated and the child's protective needs are assessed, and
12
Child Safety (Carers) Amendment Bill 2006
may include placing a child in out-of-home care with a carer
under an agreement with the child's parents.
� Part 3B to be inserted into the Child Protection Act 1999 by the
Child Safety Legislation Amendment Act 2005 regulates
intervention with parental agreement only when the investigation
and assessment are completed and a determination has been
made that a child is "a child in need of protection" and requires
ongoing help under the Act. It does not regulate interventions,
including out-of-home placements during the investigation and
assessment phase.
� Extending Part 3B to allow intervention with parents' agreement
during the investigation and assessment phase for the purpose of
ensuring a child is safe will ensure that all interventions with
parental agreements are regulated. This intervention includes
entering into a care agreement with a parent of the child that the
child be placed in out-of-home care for no longer than 30 days.
Include a fixed date by which transitioned kinship carer approvals will
begin to expire.
� Administratively approved relative carers will become approved
kinship carers from the commencement date. Under the
transitional provision in the Child Safety Legislation Amendment
Act 2005, their kinship carer approval will expire in accordance
with the initial date of approval. Some approvals will thus expire
as soon as they are transitioned. A period of time is needed to
allow for applications for renewal of the approvals to be received
and assessed after the commencement day and before the
approvals begin to expire.
� Prior to the commencement day, there is no provision for an
administratively approved relative carer to apply for, or for the
chief executive to accept an application for, the person's approval
to be renewed after the commencement day as a kinship carer.
� The amendment will fix the 30 June 2006 for kinship carer
approvals to begin to expire so that they must be renewed
progressively as the anniversaries of the approvals occur.
To allow the direct sharing of relevant child-protection information
between the principal of a non-state school and non-government
organisations.
13
Child Safety (Carers) Amendment Bill 2006
� The amendment will include the principal of a non-government
school as a `prescribed entity' within section 159M so that non-
state schools can be permitted to share relevant child-protection
information directly with other non-state schools and non-
government organisations, and vice versa.
Miscellaneous Amendments to the Commission for Children and
Young People and Child Guardian Act 2000
The objectives of the Bill will be achieved by the insertion of provisions
which will:
� clarify the application of the Commission for Children and Young
People and Child Guardian Amendment Act 2004, in relation to
outstanding applications for suitability notices. The Bill
provides that where an application for a suitability notice was
made under s 100 or 101 of the Commission for Children and
Young People and Child Guardian Act 2000 as it was in effect
immediately before 17 January 2005 ("pre-amended Act") and
was received by the Commissioner prior to 17 January 2005 (a
"relevant application") the application will, after
commencement, be assessed and decided in accordance with the
pre-amended Act. The one exception to this is where the
Commissioner has been notified of police information or
disciplinary information on or after 17 January. In this case
Commission for Children and Young People and Child Guardian
Act 2000 as amended by the Commission for Children and Young
People and Child Guardian Amendment Act 2004 and this Bill
("the amended Act") will apply to the assessment and
determination of the relevant application; and
� clarify the law to be applied in relation to outstanding
assessments and applications in relation to whether a suitability
notice should be cancelled. The Bill provides that where the
Commissioner received information, before 17 January 2005,
about the holder of a suitability notice (which would result in the
Commissioner being able to exercise a power under s 119 (1) or
(1A) of the pre-amended Act) or an application (under either s
118 or s 119 of the pre-amended Act) to cancel a suitability
notice the pre-amended Act will continue to apply to all matters
relevant to the suitability notice despite the fact that the relevant
action or decision takes place after 17 January 2005. The one
exception to this is where the Commissioner receives further
information on or after 17 January 2005, which is relevant to the
14
Child Safety (Carers) Amendment Bill 2006
decision whether or not to cancel the suitability notice (i.e. would
allow the Commissioner to exercise a power under s 119 (1) or
(2) of the amended Act). In this situation, the amended Act must
be applied in relation to the application or assessment, regardless
of the fact that the original information or application was
received before 17 January 2005; and
� allow information sharing between the Commissioner and the
Minister which will ensure the Minister has the necessary
information to make informed decisions about the legislation;
and
� clarify the legislation by correcting drafting anomalies; and
� give certainty to the decisions of the Commissioner by validating
those decisions made between 17 January 2005 and the
commencement of this Bill, in relation to undecided applications
for a suitability notice and undecided assessments and
applications as to whether a suitability notice should be
cancelled. The Bill will validate these decisions regardless of
whether the pre-amended or amended Act was applied in making
the determination.
Administrative Costs
The transfer of criminal history screening
The legislative amendments in this Bill are a further step in reforms to the
child protection system and will enhance the process of approving carers
and ensuring that persons who care for, or associate with, children in the
custody of the chief executive do not pose a danger to children. To
implement the amendments relating to carer approvals made to the Child
Protection Act 1999 in both the Child Safety Legislation Amendment Act
2005 and the Child Safety (Carers) Amendment Act 2006, the chief
executive will establish a central unit to manage personal history screening
of relevant persons and to liaise with the commissioner about relevant
persons' applications for blue cards and continued compliance with the
Commission for Children and Young People and Child Guardian Act 2000.
The commissioner will experience an increase in applications for blue
cards to be processed and notification obligations under the Commission
for Children and Young People and Child Guardian Act 2000.
15
Child Safety (Carers) Amendment Bill 2006
Miscellaneous Amendments to the Commission for Children and
Young People and Child Guardian Act 2000
There is no anticipated cost to the Government to implement the
miscellaneous amendments to the Commission for Children and Young
People and Child Guardian Act 2000.
Fundamental Legislative Principles
Transfer of criminal history screening
Legislative Standards Act 1992, section 4(3)(a)--whether legislation
makes rights or liberties, or obligations, dependent on administrative power
only if the power is sufficiently defined and subject to appropriate review
� The lack of review rights in relation to refusal of applications for a
certificate of approval or a licence, and in relation to a suspension or
cancellation of the certificate as a result of a person's lack of a blue
card breaches section 4(3)(a) of the Legislative Standards Act 1992.
However, the breach is reasonable taking into account that the real
reason for the refusal, suspension or cancellation, namely that a blue
card has been refused under the Commission for Children and Young
People and Child Guardian Act 2000, continues to be subject to
review under that Act.
Legislative Standards Act 1992, section 4(3)(g) -- does not adversely
affect rights and liberties, or impose obligations, retrospectively
� The Bill requires current carers and adult members of their
households as well as persons carrying on a licensed care service and
those engaged within licensed residential facilities or supporting
approved carers to obtain a blue card. This will affect their rights and
liberties retrospectively. Their current employment or business will be
adversely affected if they are issued with a negative prescribed notice.
This imposition of an obligation retrospectively is considered justified
on the basis that screening is an important tool in providing a safer
environment for children in the custody and guardianship of the State.
Legislative Standards Act 1992, section 4(2)(b) -- sufficient regard to the
institution of Parliament
� While the amendment to section 159 of the Child Protection Act 1999
removes the possibility for payments to be made in accordance with
amounts fixed by regulation, and instead enables such payments to be
made under departmental policy, it is considered justified on the basis
that:
16
Child Safety (Carers) Amendment Bill 2006
� the amounts to be paid for carers will frequently require
amendment and the inclusion of the amounts in a regulation
would be inefficient and impractical;
� no regulation is, at present, prescribed and a regulation is
considered too inflexible for the myriad of payments made to
carers for child related costs;
� it is preferable to align the chief executive's exercise of authority
to make payments with the specific Child Protection Act 1999
provision rather than relying on the general provisions of the
Financial Administration and Audit Act 1977; and
� the nature of the payments made to carers is such that they are
reimbursement for the costs associated with caring for a child
placed with them by the chief executive. There is, accordingly, no
impact on the rights of the general public in relation to the
payment amounts.
Miscellaneous Amendments to the Commission for Children and
Young People and Child Guardian Act 2000
The Bill, as it amends the Commission for Children and Young People and
Child Guardian Act 2000, infringes a number of fundamental legislative
principles:
Breach of s.4(3)(b) Legislative Standards Act 1992--Consistency with
principles of natural justice
� Retrospective application of the Commission for Children and Young
People and Child Guardian Act 2000 in its amended form to:
(a) outstanding applications for suitability notices; and
(b) outstanding assessments and applications in relation to whether a
suitability notice should be cancelled.
In certain circumstances, the Commissioner will be able to apply the
amended Act in determining outstanding applications for suitability notices
and outstanding assessments and applications in relation to whether a
suitability notice should be cancelled despite the fact that the application or
assessment was commenced prior to 17 January 2005.
The amended Act will apply to the determination of an outstanding
application for a suitability notice where police or disciplinary information
is received after 17 January 2005. Likewise the amended Act will apply to
the determination of outstanding assessments and applications as to
whether to cancel a suitability notice where information which would
17
Child Safety (Carers) Amendment Bill 2006
invoke s 119 (1) or (2) of the amended Act is received on or after 17
January 2005.
In some cases this will result in a breach of a fundamental legislative
principle. For example, an applicant who has been convicted of an
excluding offence (where imprisonment was ordered or a disqualification
order was made by a Court) will not have a right to provide submissions to
the Commissioner before a decision is made in relation to the application
or assessment. This is a right they would otherwise have had if the pre-
amended Act were to apply to the application or assessment.
This breach of a fundamental legislative principle is justified on the basis
that:
(a) the applicant has been convicted of an excluding offence and a
court has determined that the circumstances of the offence
warranted the person being sentenced to a period of imprisonment
or a disqualification order being imposed. This approach is
necessary to protect the best interests and safety of children;
(b) if the applicant had been issued with a positive notice before 17
January 2005 and the Commissioner received information after
that date which was relevant to a determination of whether or not
the positive notice should be cancelled the Commissioner would
have applied the amended Act in deciding whether or not the
positive notice should be cancelled; and
(c) the Commission for Children and Young People and Child
Guardian Act 2000 requires that a further application for a
prescribed notice must be made where a change in criminal
history has occurred, even if a prescribed notice has not been
issued at that time. A further application for a prescribed notice
made on or after 17 January 2005 would result in the amended
Act applying to an assessment of that application. The result is
that in some cases the legislation would already require an
applicant to take steps which would bring them within the scope
of the amended Act.
Breach of s.4(3)(g) Legislative Standards Act 1992--Does not adversely
affect rights and liberties, or impose obligations, retrospectively
� Taking into account investigative information when determining:
(a) outstanding applications for suitability notices; and
(b) outstanding assessments and applications in relation to whether a
suitability notice should be cancelled.
18
Child Safety (Carers) Amendment Bill 2006
The Commissioner will in specified circumstances apply the amended Act
to outstanding applications for a suitability notice and outstanding
assessments and the applications as to whether a suitability notice should
be cancelled.
Accordingly where the amended Act applies to the application or
assessment the Commissioner would be able to take into account any
investigative information provided by the police Commissioner after 17
January 2005 despite the fact that that the application for a suitability
notice or the assessment or application relevant to the cancellation of the
suitability notice was commenced prior to 17 January 2005.
This will result in a breach of a fundamental legislative principle in some
cases as an applicant will no longer have the right to have the application or
assessment determined on the basis of the pre-amended Act. In effect, the
applicant will lose the right to have the application or assessment
determined without any investigative information forming part of the
assessment process.
This breach of a fundamental legislative principle is justified on the basis
that:
(a) if an applicant was issued with a positive notice before 17
January 2005 and the Commissioner then received investigative
information on or after this date, the Commissioner would have
been able to consider this information when deciding whether
or not to cancel the positive notice and substitute another
prescribed notice; and
(b) it is necessary for the Commissioner to take this information into
account in order to make a decision which protects the best
interests and safety of children as far as possible.
� Taking into account disciplinary information when determining:
(a) outstanding applications for suitability notices; and
(b) outstanding assessments and applications in relation to whether a
suitability notice should be cancelled.
The Commissioner will in specified circumstances apply the amended Act
to outstanding applications for a suitability notice and outstanding
assessments and applications as to whether a suitability notice should be
cancelled. Accordingly where the amended Act applies to the application
or assessment the Commissioner will be able to have regard to disciplinary
information about child care service providers, carers under Child
Protection Act 1999, nurses, midwives and certain health practitioners, in
19
Child Safety (Carers) Amendment Bill 2006
determining the assessment or application. Accordingly the application or
assessment will be determined taking into account any disciplinary
information received by the Commissioner despite the fact that application
for the suitability notice or the assessment or application relevant to
whether the suitability notice should be cancelled, was commenced prior to
17 January 2005.
This will result in a breach of a fundamental legislative principle as in some
cases an applicant will no longer have the right to have the application or
assessment determined on the basis of the pre-amended Act. In effect, some
applicants will lose the right to have an application or assessment
determined without disciplinary information (as defined in the amended
Act) being considered as part of the assessment process.
This breach of a fundamental legislative principle is justified on the basis
that:
(a) if the applicant was issued with a positive notice before 17
January 2005 and the Commissioner received disciplinary
information on or after this date the Commissioner would have
been able to consider this information when deciding whether or
not to cancel the positive notice and substitute another prescribed
notice; and
(b) it is necessary for the Commissioner to take this information into
account in order to make a decision which protects the best
interests and safety of children as far as possible.
� Retrospective application of the Commission for Children and Young
People and Child Guardian Act 2000 in its amended form to:
(a) outstanding applications for suitability notices; and
(b) outstanding assessments and applications in relation to whether a
suitability notice should be cancelled.
In specified circumstances, the Commissioner will be able to determine an
outstanding application for a suitability notice or an outstanding
assessment or application relevant to whether a suitability notice should be
cancelled on the basis of the amended Act despite the fact that the
application or assessment or application in relation to the cancellation of a
suitability notice was commenced prior to 17 January 2005.
This will result in a breach of a fundamental legislative principle in some
cases have the following effects:
20
Child Safety (Carers) Amendment Bill 2006
(a) the Commissioner will be able to consider information that the
applicant would not have anticipated would be considered in
assessing an application for a suitability notice (namely
investigative and disciplinary information (other than Board of
teacher registration information);
(b) an applicant who has a conviction for an excluding offence
(where imprisonment was ordered or a disqualification order
made) will no longer have a right of review to the Children
Services Tribunal. This is a right the applicant would otherwise
have had if the pre-amended Act was applied to the application
or assessment;
(c) an applicant who has a conviction for an excluding offence
(where imprisonment was ordered or a disqualification order
made) will no longer have a right to provide submissions to the
Commissioner before a decision is made. This is a right the
applicant would otherwise have had if the pre-amended Act was
applied to the application or assessment;
(d) an applicant who has a conviction for an offence which is now a
serious offence but which was not previously a serious offence
under the pre-amended Act will no longer have a right to have the
application or assessment determined on the basis that they do
not have a conviction for a serious offence. This is a right the
applicant would otherwise have had if the pre-amended Act was
to be applied, to the application or assessment.
This breach of a fundamental legislative principle is justified on the basis
that:
(a) if the applicant was issued with a positive notice before 17
January 2005 and the Commissioner received information on or
after this date which invoked s 119 (1) or (2) of the amended Act,
the Commissioner would have applied the amended Act in
deciding whether or not to cancel the positive notice and
substitute another prescribed notice;
(b) it is necessary for the Commissioner to take this information into
account in order to make a decision which protects the best
interests and safety of children as far as possible;
(c) the Commission for Children and Young People and Child
Guardian Act 2000 requires that a further application for a
prescribed notice must be made where a change in criminal
history has occurred, even if a prescribed notice has not been
21
Child Safety (Carers) Amendment Bill 2006
issued at that time. A further application for a prescribed notice
made on or after 17 January 2005 would result in amended Act
applying to that application. The effect is that in some cases in
which a breach of a fundamental legislative principle will occur
the legislation already requires an applicant to take steps which
would bring them within the scope of the amended Act.
Consultation
Community
Transfer of criminal history screening
The following non-government organisations have been consulted in the
formulation of legislative proposals:
� Peakcare Queensland
� Foster Care Queensland
� Queensland Aboriginal and Islander Health Council
Government
Transfer of criminal history screening
The following agencies have been consulted on the amendments:
� Queensland Treasury
� Queensland Police Service
� Department of Justice and Attorney-General
� Commission for Children and Young People and Child Guardian
� Office of Public Service Merit and Equity
Miscellaneous Amendments to the Commission for Children and
Young People and Child Guardian Act 2000
The following agencies have been consulted on the miscellaneous
amendments to the Commission for Children and Young People and Child
Guardian Act 2000:
� Commission for Children and Young People and Child Guardian;
22
Child Safety (Carers) Amendment Bill 2006
� the Crown Solicitor;
� Department of Child Safety;
� the Department of Justice and Attorney-General (which in turn
consulted with the Child Services Tribunal);
� Queensland Police Service; and
� Queensland Treasury.
Notes on Provisions
Part 1 Preliminary
Short title
Clause 1 states the short titles of the Bill.
Commencement
Clause 2 states that clause 40 (Amendment of s 121) and clause 42
(Amendment of s 122A) are declared to have commenced on 17 January
2005. The retrospective commencement of clause 40 ensures that the
appeal rights of applicants are safeguarded under section 121 as they were
inadvertently misrepresented through a typographical error in the
Commission for Children and Young People and Child Guardian Act 2000
(which commenced on 17 January 2005). The retrospective operation of
clause 42 ensures that the drafting anomaly contained in the current s 122A
does not prevent the police commissioner from notifying the
Commissioner of a change in a relevant persons criminal history and/or
that a decision has been made that there is investigative information about a
relevant person where such a change has occurred or such a decision has
been made since 17 January 2005 and before the commencement of this
section.
Clause 2 also states that the following provisions commence on 30 April
2006:
� part 2
23
Child Safety (Carers) Amendment Bill 2006
� sections 30 to 39, 41, 43, 44, 46, 47, 53, 55 to 57
� the schedule.
Part 2 Amendment of Child Protection
Act 1999
Act amended in pt 2 and schedule
Clause 3 states that this part and schedule amends the Child Protection Act
1999.
Amendment of s 125 (Application for, or renewal of, licence)
Clause 4 amends section 125 by including an additional requirement that
applications for, or renewal of, a licence to provide care services, must be
accompanied by a notice signed by the nominee which states whether or
not the nominee and directors of service have a current positive prescribed
notice (blue card), including the expiry date, or a current negative
prescribed notice. If a person does not have a prescribed notice, either
negative or positive, the nominee's notice must indicate whether the person
has a current application for a prescribed notice and if the application is
current.
Amendment of s 126 (Restriction on granting application)
Clause 5 amends section 126 to provide that the chief executive cannot
grant a licence unless satisfied that the nominee for, and directors of, the
applicant each has a current blue card and that the applicant will comply
with Part 6 of the Commission for Children and Young People and Child
Guardian Act 2000.
Amendment of s 129 (Refusal of application)
Clause 6 amends the requirements of the notice to be given if an
application for a licence is refused. Where one of the reasons an application
is refused is because the nominee or a director does not have a current blue
card then the applicant will have no right of review to the Children Services
Tribunal. The notice will only include the process for applying for review
in cases where the reason or reasons for refusal do not include a failure of a
nominee or director to hold a blue card. Appeal rights for persons
24
Child Safety (Carers) Amendment Bill 2006
aggrieved by decisions of the commissioner with respect to blue cards will
be those provided under the Commission for Children and Young People
and Child Guardian Act 2000.
Amendment of s 130 (Nominees)
Clause 7 amends section 130 to make nominees responsible for ensuring
that the licensee complies with Part 6 of the Commission for Children and
Young People and Child Guardian Act 2000 in respect of either carrying on
a regulated business or employing persons associated with the service in
regulated employment.
Amendment of s 136 (Refusal of application)
Clause 8 amends the requirements of the notice to be given if an
application to become an approved carer is refused. Where one of the
reasons an application is refused is because the carer or an adult household
member does not have a current blue card then the applicant will have no
right of appeal to the Children Services Tribunal. The notice will only
include the process for applying for review in cases where the reason or
reasons for refusal do not include the failure of a carer or adult household
member to hold a blue card. Appeal rights for persons aggrieved by
decisions of the commissioner with respect to blue cards will be those
provided under the Commission for Children and Young People and Child
Guardian Act 2000.
Insertion of new ch 4, pt 2, div 4, sdiv 3 and sdiv 4, hdg
Clause 9 inserts new subdivisions 3 and 4 into division 4 of part 2 in
chapter 4.
Subdivision 3 Immediate suspension or cancellation
of particular authorities
140AB Definition for sdiv 3
The term clarifies the use of the terms throughout the subdivision,
including:
� "application for a review" - applications under sections 121B or
121E of the Commission for Children and Young People and
Child Guardian Act 2000 to the Children Services Tribunal;
25
Child Safety (Carers) Amendment Bill 2006
� "disqualifying event" - the issue of a negative notice (other than
pursuant to section 102(6)(a) or section 119A of the Commission
for Children and Young People and Child Guardian Act 2000 or
after a card has been suspended), the suspension of a positive
notice or the withdrawal of an application for a prescribed notice;
� "prescribed provision" - 102(6)(a) (negative prescribed notice
because of an excluding offence) or section 119A (conviction for
excluding offence) of the Commission for Children and Young
People and Child Guardian Act 2000.
140AC Immediate Suspension
This new provision requires the chief executive to suspend a foster carer's
or kinship carer's certificate if the carer or a member of their household is
issued with a negative notice,including under section 102(6)(a) or section
119A, or on cancellation of a positive notice that has been suspended, or
has their blue card suspended or their application for a prescribed notice
withdrawn. Similarly, the chief executive is required to suspend a licensed
care service's licence if the nominee or director is issued with a negative
notice, including under section 102(6)(a) or section 119A, or on
cancellation of a positive notice that has been suspended, or has their blue
card suspended or their application for a prescribed notice withdrawn. This
provision does not compel the chief executive to take action where a
manager or employee of a licensed care service is issued with a negative
notice or if their blue card is suspended, as the employer licensee is
responsible for taking appropriate action in such instances. The suspension
must take place as soon as practicable after the chief executive becomes
aware of the commissioner's actions.
However, if (in the case of a certificate of approval) an adult member of a
carer's household, or (in the case of a licence) a nominee or director of the
licensee is issued with a negative prescribed notice under 102(6)(a)
(negative prescribed notice because of an excluding offence) or section
119A (conviction for excluding offence) of the Commission for Children
and Young People and Child Guardian Act 2000, the chief executive need
not suspend the authority if the chief executive has instead decided to
cancel the authority under section 140AG(3) or 140AH(1). Further, the
chief executive must not suspend the certificate or licence if satisfied that
the relevant person (household member or nominee or director) has left the
household or the licensed care service.
26
Child Safety (Carers) Amendment Bill 2006
Suspension of an authority following a negative notice issued to a member
of a carer's household or a nominee or director of a licensee is an interim
measure prior to cancellation if the chief executive considers the household
member or nominee or director is not likely to leave the household or
licensed care service.
140AD Notice of suspension
This new provision obliges the chief executive to notify the person
immediately of the suspension of an authority under section 140AC
including the reason for the suspension. It also specifies that the suspension
of the authority has effect on the day the notice is given.
140AE Period of suspension
This new provision allows for the suspension of an authority under section
140AC to remain in force until either the authority expires in accordance
with the Child Protection Act 1999, the suspension is cancelled by the chief
executive or the authority is cancelled by the chief executive (whichever is
sooner).
140AF End of suspension
This new provision ends a suspension if the relevant person is issued with a
positive prescribed notice. In addition, the chief executive is obliged to end
the suspension where the authority was suspended because a household
member, nominee or director was issued with a negative prescribed notice
and the chief executive is satisfied the person is no longer a member of the
household or, in the case of a licence, the chief executive is satisfied the
person is no longer a nominee or a director. The chief executive must give
the person written notice of the decision to end the suspension which takes
effect on the day notice is given.
140AG Cancellation of certificate of approval
This new provision provides for the chief executive to cancel a certificate
of approval which has been suspended under section140AC and where the
commissioner has issued a negative prescribed notice to a relevant person,
that is a carer or household member, (including where a negative notice
issues upon cancellation of a suspension of a positive notice by the
commissioner). The cancellation is mandatory if the negative prescribed
notice related to the carer. In relation to a negative prescribed notice for a
household member, the cancellation is at the discretion of the chief
27
Child Safety (Carers) Amendment Bill 2006
executive and is exercisable where the chief executive considers it is
necessary in the best interests of the child in the placement. Where the
carer or household member does not seek a review, then the chief executive
cannot cancel the authority until the expiration of the period for seeking a
review. If the person seeks a review of the commissioner's decision the
chief executive cannot cancel the authority unless and until that review is
decided and the commissioner's decision upheld.
Where the carer is issued with a negative notice under section 102(6)(a)
(negative prescribed notice because of an excluding offence) or section
119A (conviction for excluding offence) of the Commission for Children
and Young People and Child Guardian Act 2000, such decisions not being
appealable, then the mandatory cancellation will only occur once the notice
under section 102(6)(a) or section 119A is given to the carer. Where a
household member is issued with a negative notice under 102(6)(a)
(negative prescribed notice because of an excluding offence) or section
119A (conviction for excluding offence), the chief executive may cancel
the certificate whether or not the chief executive has suspended the
certificate under section 140AC. If the chief executive has suspended the
carer's certificate of approval under section 140AC, the certificate would be
cancelled, for example, if the household member had not left the
household.
140AH Cancellation of licence
This new provision provides for the chief executive to cancel a licence
suspended under section140AC where the commissioner has issued a
negative prescribed notice to a nominee or director, (including where a
negative notice issues upon cancellation of a suspension of a positive notice
by the commissioner). The cancellation is at the discretion of the chief
executive, but it must not be exercised where the chief executive is satisfied
the relevant person is no longer the nominee or director for the licensed
care service. If a person seeks a review of the commissioner's decision the
chief executive cannot cancel the authority until that review is decided.
Where the relevant person does not seek a review then the chief executive
cannot cancel the authority until the expiration of the period for seeking a
review and the commissioner's decision is upheld.
Where the person is issued with a negative notice under section 102(6)(a)
(negative prescribed notice because of an excluding offence) or section
119A (conviction for excluding offence) of the Commission for Children
and Young People and Child Guardian Act 2000, such decisions not being
appealable, then the chief executive may only cancel the license once the
28
Child Safety (Carers) Amendment Bill 2006
notice under section 102(6)(a) or section 119A is given to the person.
Where a nominee or director is issued with a negative notice under section
102(6)(a) or section 119A, the chief executive may cancel the licence
whether or not the chief executive has suspended the licence under section
140AC. If the chief executive has suspended the licence under section
140AC, the licence would be cancelled, for example, if the nominee or
director had not left the licensed care service.
140AI Notice of cancellation
This new provision obliges the chief executive to notify the person
immediately of the cancellation of an authority under either section 140AG
or section 140AH including the reason for the cancellation. If the
cancellation is decided under sections 140AF(3) or (4) or section 140AH,
the notice must include advice about how the authority holder can apply for
a review by the Children Services Tribunal. The cancellation takes effect on
the day the notice is given to the approved carer or the licensee.
Clause 9 also inserts a new heading for subdivision 4, Other matters about
amendment, suspension or cancellation.
Amendment of s 143 (Effect of failure to decide application for,
or renewal of, authority)
Clause 10 makes section 143(1), deemed refusal of applications not
decided within 90 days, subject to section 143A.
Insertion of a new s 143A (Further consideration of application
for authority)
Clause 11 inserts a new section 143A concerning the deemed refusal of an
application for an authority not decided within 90 days. The new provision
provides for the chief executive and the applicant to agree to extend the
time for a decision to be made, thereby avoiding a deemed refusal. An
agreement can only be entered into where the chief executive considers that
more time is needed to decide the application. Such agreement must be
reached prior to the expiry of the initial 90 day period after lodgement of
the application and must state the term of the extension. Once an extension
has been agreed to, the period for the chief executive to make a decision on
the application cannot be further extended. If no decision has been made
before the expiration of the extension period, the application will be
deemed to have been refused. This provision will be available in
exceptional cases where either the commissioner or the chief executive is
29
Child Safety (Carers) Amendment Bill 2006
unable to make their decisions so that the process can be completed within
the specified time frame. This will avoid a person being subject to the
administrative process of applying again for an authority.
Insertion of new ss 148A and 148B and chapter 4, part 3
Clause 12 inserts new provisions, sections 148A and 148B dealing with
notifications from the chief executive to the commissioner and the chief
executive obtaining information from the commissioner. The clause also
inserts a new Part 3 into Chapter 4, dealing with the application of the
Commission for Children and Young People and Child Guardian Act 2000
to licensed care services, and persons who become members of a foster or
kinship carer's household.
148A Chief executive to notify children's commissioner about
particular persons
The new section 148A provides for the chief executive to notify the
commissioner where the chief executive has lodged an application for a
blue card for a person and the chief executive becomes aware that the
person no longer proposes to be a carer or a member of a carer household
engaged in regulated employment. In addition, the chief executive must
notify the commissioner where the chief executive has refused the
application of approval to be a carer or where a person stops being a carer
or a member of a carer's household engaged in regulated employment.
The notice must include details from which the commissioner can identify
the person, including the registration number of any current blue card held
by the person.
The provision applies only in respect of applications for blue cards which
are sent from the chief executive to the commissioner, that is, persons
applying to be approved carers and their household members. The
notification will then allow the commissioner to terminate the blue card
process in accordance with the relevant provision of the Commission for
Children and Young People and Child Guardian Act 2000.
148B Obtaining particular information from children's
commissioner
The new section 148B provides that the chief executive may ask the
commissioner about whether a applicant for, or to renew, a certificate of
approval, an adult household member or nominee for a licence or a director
30
Child Safety (Carers) Amendment Bill 2006
of an applicant for, or holder of, a licence has been issued with a prescribed
notice or has an outstanding application with the commissioner.
This section will apply in cases where any of those persons associated with
applications for authorities under the Child Protection Act 1999 presents
with a blue card or has an outstanding application for a blue card. The chief
executive will be able to confirm that the blue card is current and has not
been suspended or whether there is a current application outstanding. The
commissioner must comply with such a request.
Part 3 Application of Commissioner's Act
148C Application to licensed care service
The new section 148C clarifies that directors and nominees of licensed care
services are carrying on the business of a licensed care service for the
purposes of the Commission for Children and Young People and Child
Guardian Act 2000.
148D Pending application for prescribed notice
The new section 148D (1) and (2) provides an exception to the "no ticket -
no start" regime for volunteers under s 104B of the Commission for
Children and Young People and Child Guardian Act 2000. The section
relates to new adult household members of approved foster or kinship
carers or applicants to be approved carers (ie those adult household
members who join the household after an application for an authority is
made to the chief executive), who do not have a current positive prescribed
notice. Under section 148D, those persons may commence living in a home
in which care is being provided on the condition that they have lodged an
application for a blue card. The exemption from the prohibition in section
104B of the Commission for Children and Young People and Child
Guardian Act 2000 applies while their application for a prescribed notice is
current.
Section 148D(3) and (4) provide an exception for new nominees and
directors of corporations which hold a licence to provide care services from
the general position that a person cannot carry on a regulated business
without obtaining a blue card. This section allows a person to commence
and continue carrying the business as a new nominee or director on a
31
Child Safety (Carers) Amendment Bill 2006
condition that an application for a blue card is lodged. The exemption from
the prohibition of s 109 continues while their application is current.
The new sections 148C and 148D recognise that turnover occurs in the
membership of carer households and with nominees and directors of
licensed care services. The exceptions being made to the relevant
provisions of the Commission for Children and Young People and Child
Guardian Act 2000 overcome significant practical barriers to the continuity
of placements of children and young people with either carers or in
services which would arise if those persons were not able to join
households or licensed care services until they had applied for and been
issued with a positive prescribed notice by the commissioner.
Amendment of s 159 (Payments for care and maintenance)
Clause 13 amends section 159 to allow the chief executive discretion to
make payments to carers in accordance with the Department of Child
Safety's approved policy and schedule, removing reliance on a regulation
prescribing amounts of payments. Payments made under this section are
made to reimburse carers for the cost of caring for a child in care. This
amendment works in conjunction with the amendment to section 99F in the
Commission for Children and Young People and Child Guardian Act 2000
to clarify that payments under section 159 are not "financial reward" for the
purpose of the that Act, and hence preserves carers' status as volunteers.
Amendment of s 159M (Particular prescribed entities giving
and receiving relevant information)
Clause 14 amends section 159M(1) to include the principal of non-
government schools as a `prescribed entity'. This will enable non-state
schools to share relevant child protection information directly with other
non-government organisations under part 4, chapter 5 of the Child
Protection Act 1999.
New chapter 9 part 6
Clause 15 inserts a new part 6 into Chapter 9 of the Child Protection Act
1999. This new part provides for the transition of applications for carer
approval and licensed care services which are ongoing at the time of the
commencement of the Child Safety (Carers) Amendment Act 2006.
32
Child Safety (Carers) Amendment Bill 2006
Part 6 Transitional Provisions for Child Safety
(Carers) Amendment Act 2006
266 Definitions for pt 6
For the purposes of this part the following definitions apply:
"Commencement" means the day the provisions in which the term is
used commences.
"Post-amended Act" means the Child Protection Act 1999 as in force
after the commencement of the Child Safety (Carers)
Amendment Act 2006.
Application for licence
This new section applies to applications, made under section 125 of the
Child Protection Act 1999 for, or renewal of, a licence, which had not been
decided immediately before the commencement of Child Safety (Carers)
Amendment Act 2006. This provision allows for these licences to be
granted without the application of section 125(1)(d) and section 126(c) and
(d). This means that, in order to be granted a licence, nominees will not
need to provide information to the chief executive regarding the blue card
status of themselves and any directors and will not need to satisfy the chief
executive that they will comply with Part 6 of the Commission for Children
and Young People and Child Guardian Act 2000 in order for a licence to be
granted. In addition, it will not be a condition on the grant of a licence that
each nominee and director have a blue card. The transitional provisions of
the Commission for Children and Young People and Child Guardian Act
2000 will, however, require such nominees and directors to have made an
application for a blue card within six months of the date of commencement.
Application for particular certificate of approval
This new section applies to applications, made under section 132 of the
Child Protection Act 1999 to be an approved foster carer or to renew a carer
certificate, which were made before the commencement of Child Safety
(Carers) Amendment Act 2006, and remained undecided at that date. This
provision allows for these authorities to be issued without the requirement
of carers and adult household members to have blue cards under section
135(1)(a)(iii). Transitional provisions in the Commission for Children and
Young People and Child Guardian Act 2000 will, however, require carers,
33
Child Safety (Carers) Amendment Bill 2006
when approved, and adult members of their households at that time, to
make application for blue cards within six months of commencement.
Amendments of sch 3 (Dictionary)
Clause 16 includes definitions within the Dictionary for terms relevant to
the role of the Commission in the new screening regime.
Part 3 Amendment of Child Safety
Legislation Amendment Act 2005
Act amended in pt 3
Clause 17 states that part 3 amends the Child Safety Legislation
Amendment Act 2005.
Amendment of s 14 (Insertion of new ch 2, pt 3B of Act No. 10
of 1999)
Clause 18 amends the new chapter 2 Part 3B, Intervention with Parental
Agreement, to be inserted into the Child Protection Act 1999 by section 14
of the Child Safety Legislation Amendment Act 2005.
51Z Application of Part 3B
Subclause 18 (1) replaces the previous section 51Z concerning the
application of Part 3B. Under the initial section 51Z, Part 3B was to apply
where a child is in need of protection and needs ongoing help and there are
no order in force under the Child Protection Act 1999 granting custody or
guardianship of that child to anyone. The new section 51Z inserted by
clause 18 clarifies that the Part applies also in cases where there is no
assessment order in place but the chief executive reasonably suspects the
child is in need of protection and considers an investigation is necessary to
determine whether the child is in need of protection. The chief executive
must also be satisfied that, while the investigation is ongoing, provision
needs to be made for the child's protection. This means that intervention
with parental agreement, including out of home placement can occur
during the intake and assessment phase.
34
Child Safety (Carers) Amendment Bill 2006
51ZA What is intervention
Subclause (2) amends the proposed section 51ZA to ensure that
intervention includes help as well as ongoing help the child needs. The
intervention during the assessment phase cannot, of its nature, be about
giving on-going help.
51ZB Considering intervention with agreement
Subclause (3) replaces section 51ZB to provide a threshold for entering
into an agreement with the parents during the assessment phase. The chief
executive must consider the child's views and wishes if able to be
ascertained and must be satisfied the child's parents are able and willing to
work with the chief executive to meet the child's interim protection needs
while the investigation is carried out.
51ZG Effect of Particular agreement
Subclause (4) and (5) amends the proposed section 51ZD to distinguish
between an assessment care agreement during the assessment of a child's
need of protection and a child protection care agreement entered into after
the child has been assessed as a child in need of protection.
51ZG Effect of Particular agreement
Subclause (6) amends section 51ZG to clarify that it is only in the case of
care agreements entered into in respect of children in need of care and
protection (child protection care agreement), as opposed to those entered
into where an investigation is being undertaken as to whether the child is in
need of care and protection (assessment care agreement), that the chief
executive has custody of the child.
51ZH Period of an agreement
Subclause (7) and (8) amends the proposed section 51ZH by inserting new
subsections (2) and (3) and renumbering the existing subsections (2) to (7).
The new subsections will provide that an assessment care agreement must
be for no longer than 30 days and that it cannot be extended. If by the end
of the 30 days the assessment has still not been completed and the child
still cannot safely return to the parents, the chief executive must apply to
the court for a temporary assessment order or court assessment order to
enable the child to remain in the placement.
35
Child Safety (Carers) Amendment Bill 2006
Subclause (9) clarifies that the extension provisions in the proposed
sections 51ZH(4) to (8) apply only to child protection care agreements.
Amendment of s 38 (Replacement of ss 132-135 of Act No. 10 of
1999)
Clause 19 amends subsections 133(3) and 134(3) in relation to disclosure
requirements in the approved forms for applying for an initial certificate of
approval or for renewal of a certificate of approval respectively. The
amendment will add that the approved forms may require the disclosure of
whether the applicant and each adult member has a current positive or
negative prescribed notice, the expiry date of a positive notice, or whether
they have a current application for a prescribed notice. Adult member will
be as defined in section 135.
Clause 19 also renumbers sections.135(1)(a)(iii) and (iv) as 135(1)(a)(iv)
and (v) in the proposed section 135 inserted by section 38 of the Child
Safety Legislation Amendment Act 2005. It also renumbers subsections
135(1)(b)(iv) and (v) as 135(1)(b)(v) and (vi) to insert a new
section135(1)(b)(iv). The effect of the additional section. 135(1)(a)(iii) is
to add a further restriction on granting either a foster or kinship carer
certificate that the applicant and each adult member of the applicant's
household must have a current blue card. Adult member of a household for
this section includes only those persons who are members of the household
at the time the application is made and who sign the application and are
members of the household when the application is decided. Adult
household members who become members after an application is lodged
will be in regulated employment under the Commission for Children and
Young People and Child Guardian Act 2000 and will have to apply for, and
be issued with, a blue card, but the decision whether to approve the carer
does not depend on "new" household members having blue cards.
Amendment of section 42 (Amendment of s 137 (Amendment of
authority on application of holder) of Act No. 10 of 1999
Clause 20 amends section 137(5) which applies when the chief executive is
considering an application from a licensee for amendment of a licence to
change the nominee for the licence. The amendment to section 137(5) will
require that the chief executive must be satisfied that, if the person
proposed to be the nominee does not have a current positive prescribed
notice, the person has a current application for a prescribed notice. This is
consistent with the new section 148D (see clause 12) which allows a
nominee for a licensed care service to become a nominee without having a
36
Child Safety (Carers) Amendment Bill 2006
positive prescribed notice, provided the proposed nominee has a current
application lodged with the commissioner.
Amendment of section 44 (Insertion of new ss 138A-138C) of
Act No. 10 of 1999
Clause 21 amends 138B, Amendment of provisional certificate to extend
its expiry day, which applies when the chief executive is considering
extending the expiry date of a certificate of approval as a provisionally
approved carer from 60 to up to 90 days. The amendment omits subsection
138B(2)(b) so that the certificate can be extended regardless of whether the
holder's application for approval as a foster or kinship carer is likely to be
decided within the period of the extension. The insertion of section 143A
(see clause 11) allows for circumstances where the chief executive
considers more time than 90 days is needed to decide whether to grant an
authority to an applicant. In that case, while a provisional certificate of
approval as a provisionally approved carer may be extended only to 90
days the period or deciding an application may be longer than 90 days.
Amendment of section 45 (Amendment of s 139 (Authority may
be suspended or cancelled) of Act No. 10 of 1999
Clause 22 expands the grounds on which the chief executive may suspend
or cancel an authority to include the situation where the chief executive is
satisfied it is inappropriate for the holder to continue as a carer following
information provided to the chief executive under Division 6. That is, that a
nominee, director, manager or employee of a licensed care service
withdraws their application for a prescribed notice, is charged with an
"excluding offence", convicted of a "serious offence" or that a person must
apply to the commissioner for a further prescribed notice because of a
change in their criminal history. Grounds for suspending or cancelling may
also arise from a carer or adult household member failing to apply for a
blue card under a transitional provision (see clause 46) or for renewal of a
blue card, or from other information provided by the commissioner, or
because of a circumstance prescribed under a regulation. The meaning of
"excluding offence" and "serious offence" are provided in the Commission
for Children and Young People and Child Guardian Act 2000.
37
Child Safety (Carers) Amendment Bill 2006
Amendment of s 49 (Amendment of s 142 (Amendment,
suspension and cancellation of authorities) of Act No. 10 of
1999)
Clause 23 inserts a provision in section 141 so that it does not apply to an
amendment, suspension or cancellation of an authority under subdivision 3.
Section 141(4) provides for the time at which a suspension or cancellation
takes effect and the amendment in clause 23 distinguishes suspension and
cancellation in subdivision 3 which arise as a result of a notification from
the commissioner and take effect at times provided for in the provisions of
subdivision 3.
Amendment of s 51 (Replacement of ch 4, pt 2, div 5, hdg and
s 142 of Act No. 10 of 1999)
Clause 24 amends section 51 of the Child Safety Legislation Amendment
Act 2005 which inserts a new division 5 into the Child Protection Act 1999.
The proposed division is headed "Notification of changes relating to
authority holders and associated persons" and provides compulsion for
relevant persons to advise the chief executive of changes in their criminal,
traffic and domestic violence (ie "personal") history. Section 141B defines
"personal history" for that purpose.
Persons requiring blue cards under the Child Safety (Carers) Amendment
Act 2006 for approval of authorities will be screened and monitored for
criminal history by the commissioner. Therefore, subclause 24(1) amends
the definition of "personal history" to clarify that the chief executive will be
screening provisionally approved carers, members of their households and
"new" members of the household of a foster or kinship carer who does not
have a blue card (such as persons who move into the household after the
carer application has been made or approved) for criminal, domestic
violence and traffic histories. This section defines "personal history"
information for a nominee, director, manager or persons engaged in
relation to the provision of care services by a licensed care service, an
approved foster or kinship carer or adult household member of a foster or
kinship carer as domestic violence and traffic history.
Section 51 of the Child Safety Legislation Amendment Act 2005 inserted
division 6 into the Child Protection Act 1999 which provided for the chief
executive to obtain investigative information from the police commissioner
as part of a person's criminal history. Subclause 24(2) omits division 6 as
investigative information will be obtained by the children's commissioner
for those persons who require blue cards.
38
Child Safety (Carers) Amendment Bill 2006
Subclause 24(2) also inserts a new division 6, Notification of other
information relating to licences and associated persons.
New section 141H sets out the notification obligations of a nominee for a
licence. The nominee is required to give written notice to the chief
executive if:
� a nominee, manager or employee of a licensed care service
applies for a prescribed notice and the application is withdrawn;
� the nominee is charged with an "excluding offence" or convicted
of a "serious offence";
� the nominee must apply for a further prescribed notice under
section 113 or section 114 of the Commission for Children and
Young People and Child Guardian Act 2000;
� the nominee becomes aware that a manager or employee:
� has an application for a prescribed notice has been
withdrawn; or
� has had to make application for a further prescribed notice
under the Commission for Children and Young People and
Child Guardian Act 2000 because of a change in the
person's criminal history; or
� has been issued with a negative notice either on an initial
application or following an application for a further
prescribed notice.
The section does not include an obligation for the nominee to notify the
chief executive if the nominee is issued with a negative notice as the chief
executive will be a notifiable entity under the Commission for Children and
Young People and Child Guardian Act 2000 for that purpose. The section
imposes a maximum penalty of 100 penalty units on the nominee for
failure to provide the required notification. The notice must include, for
identifying information, the person's name, date of birth and blue card
registration number.
New section 141I obliges a director for a licensee to disclose to the
nominee for the licence if the director has:
� applied for a prescribed notice and the application is withdrawn;
� been charged with an "excluding offence" or convicted of a
"serious offence";
39
Child Safety (Carers) Amendment Bill 2006
� must apply for a further prescribed notice under section 113 or
section 114 of the Commission for Children and Young People
and Child Guardian Act 2000 because of a change in criminal
history.
The section does not include an obligation for the director to notify the
nominee or for the nominee to notify the chief executive if the director is
issued with a negative notice as the chief executive will be a notifiable
entity under the Commission for Children and Young People and Child
Guardian Act 2000 for that purpose. There is a maximum penalty of 100
penalty units for a director's failure to comply with this requirement. On
receiving the disclosure, the nominee is required to notify the chief
executive under a maximum penalty of 100 penalty units.
The Child Safety Legislation Amendment Act 2005 inserted a provision,
section 142, into the Child Protection Act 1999 to define "police
information" as criminal history, investigative information and domestic
violence. The purpose of the definition is to specify the "police
information" which the chief executive may obtain from the police
commissioner for deciding on, and monitoring, the suitability of nominees,
directors, managers and persons engaged by a holder of a licence; or for an
applicant or holder of a certificate of approval and adult members of their
household. Under the Child Safety (Carers) Amendment Act 2006 criminal
history screening of certain persons will be undertaken by the children's
commissioner. The definition of "police information" in section 142 is,
therefore, amended to clarify the information the chief executive can obtain
from the police commissioner in relation to different persons. Investigative
information is omitted from the definition in accordance with the omission
of sections 141H to 141K in Division 6 from the Child Safety Legislation
Amendment Act 2005. The chief executive will continue to have the power
to screen for domestic violence and criminal history in certain
circumstances. "Police information" will be limited to domestic violence
history for applicants for, or holders of, certificates of approval, adult
member of their households and for nominees, directors, managers and
persons engaged in relation to the provision of care services by a licensed
care service. For a person the chief executive proposes to approve as a
provisionally approved carer, members of their households and persons
who become a household member of an applicant after the application for a
certificate of approval has been lodged, or become a household member of
an approved carer, "police information" is defined as criminal history and
domestic violence.
Subclauses 24(4) and (5) omit references to investigative information in
section 142C(2) and all of section 142(5) which provides for the police
40
Child Safety (Carers) Amendment Bill 2006
commissioner's decision about providing investigative information to the
chief executive.
The Child Safety Legislation Amendment Act 2005 inserted section 142D to
allow the police commissioner to give the chief executive information
about a change in a person's criminal history. Subclause 24(6) omits this
section as this function is provided for in the Commission for Children and
Young People and Child Guardian Act 2000 for persons who require blue
cards and will not be needed by the chief executive. Subclause 24(7)
renumbers section142 as section 142D following the omission of section
142D.
Omission of s 52 (Amendment of s 143 (Effect of failure to
decide application for, or for renewal of, authority) fo Act No. 10
of 1999
Clause 25 omits section 52 of the Child Safety Legislation Amendment Act
2005 which amended section 143(1) of the Child Protection Act 1999.
Section 52 had the effect of including applications for renewal of an
authority in section 143(1) which sets a time limit for processing an
application. That created an inconsistency with section 143(2) which
allows an authority to continue to have effect while an application to renew
an authority is being considered.
Amendment of s 66 (Insertion of new ch 9, pt 5 of Act No. 10 of
1999
Clause 26 amends the transitional provision in section 263 for existing
relative carers. The existing section 263 would mean that relative carers
approvals transitioned to kinship carers approvals would potentially start
expiring immediately on commencement, leaving no room or time for
applications for renewals to be made and received. The relevant kinship
carer provisions are intended to commence on 30 April 2006 and clause 26
will provide that these approvals will not start expiring until 30 June 2006.
Replacement of s 67 (Replacement of sch 2 (Reviewable
decisions and aggrieved persons) of Act No. 10 of 1999
Clause 27 omits section 67 of the Child Safety Legislation Amendment Act
2005. Section 67 replaced schedule 2 of the Child Protection Act 1999,
Reviewable decision and aggrieved person. The amendment made by
clause 27 removes from reviewable decisions those decisions made under
section 129, Refusal of application, (for a licence), and section 136 Refusal
41
Child Safety (Carers) Amendment Bill 2006
of application (for a certificate of approval) applications which are refused
when a reason for the refusal is because a person has not been issued with a
required blue card from the commissioner.
Amendment of s 68 (Amendment of sch 3 (Dictionary) of Act
No. 10 of 1999
Clause 28 amends section 68 of the Child Safety Legislation Amendment
Act 2005 by omitting definitions of "approved carer", "investigated person"
and "investigative information". Clause 28(2) inserts new definitions of
"approved carer", "assessment care agreement", "child protection care
agreement", "convicted", "excluding offence" and "serious offence".
Clause 28(3) amends the definition of "care agreement" to accommodate
the changes to Part 3B.
Clause 28(4) amends the definition of "kin" to correct the subsection
numbers for the definition.
Part 4 Amendment of Commission for
Children and Young People and
Child Guardian Act 2000
Act amended in pt 4
Clause 29 notes that this part amends the Commission for Children and
Young People and Child Guardian Act 2000.
Insertion of new s 99BA
Clause 30 inserts a new section 99BA, to clarify that the chief executive is,
for the purposes of the Commission for Children and Young People and
Child Guardian Act 2000 only, the employer of foster and kinship carers
and their adult household members and is engaging them in "regulated
employment". The section also clarifies that a foster or kinship carer or
adult household member must disclose any information they are required to
disclose under the Commission for Children and Young People and Child
Guardian Act 2000 to the chief executive.
42
Child Safety (Carers) Amendment Bill 2006
Amendment of s 99F (Who is a volunteer)
Clause 31 amends section 99F to clarify the definition of financial reward
within the Commission for Children and Young People and Child Guardian
Act 2000. The section clarifies that payments received by carers under the
Child Protection Act 1999 do not amount to financial reward for the
purpose of the Commission for Children and Young People and Child
Guardian Act 2000. Accordingly foster and kinship carers and adult
members of their households will be considered volunteers for the purposes
of the Commission for Children and Young People and Child Guardian Act
2000.
Amendment of s 100 (Application for notice - regulated
employment)
Clause 32 amends section 100 to insert new subsections (6) and (7), to
clarify the issue of responsibility for payment of the blue card application
fee. Until now, the legislation had been silent as to whether the employer
or the employee was responsible for the fee, to enable negotiation of
payment of the fee between employers and employees. Subsection (6) now
provides that an employee is responsible to pay the application fee for a
blue card. If the fee is paid by the employer, this amount becomes a debt
payable by the employee to the employer. This reflects the status quo in
most private and public sector employment relationships and is
appropriate, as employees receive the benefit of the blue card through its
transferability and (generally) tax deductible status.
However, whilst subsection (6) clarifies the status quo, subsection (7)
provides that this position can be reversed by any written agreement
between the employer and employee, an industrial instrument under the
Industrial Relations Act 1999, or another document regulating wages and
conditions of employment that is enforceable under the Workplace
Relations Act 1996 (Cth). The provision ensures that both existing and
future enterprise bargaining arrangements are not affected, as the right to
negotiate payment of the fee is retained. The provision is also considered
broad enough to include union and non-union agreements, arbitrated
outcomes, and State and Federal awards.
Amendment of s 101 (Application for notice - regulated
business)
Clause 33 amends section 101 to insert subsection (7), which provides for a
person's application for a blue card to carry on a regulated business to be
43
Child Safety (Carers) Amendment Bill 2006
withdrawn where a person is charged with an excluding offence. This
amendment achieves consistency with existing provisions of the
Commission for Children and Young People and Child Guardian Act 2000
which allow the commissioner to withdraw an application for a person who
is engaged in, or proposes to engage in, regulated employment where they
are charged with an excluding offence (s 123(3B)).
Amendment of s 102B (Actions of commissioner after making
decision on application)
Clause 34 amends the existing section 102B (4) to allow the commissioner
to notify the chief executive of the Department of the issuing of a
prescribed notice to a person who is a nominee for, or an executive officer
of, an applicant for, or a holder of, a licence under the Child Protection Act
1999. The clause also inserts a new subsection which specifies that where
notification is provided to the chief executive in accordance with section
102B(4) the commissioner must specify if a negative notice was issued in
accordance with section 102(6)(a). Where a negative notice is issued in
accordance with section 102(6)(a), a person does not have a right of review.
This is information relevant to the chief executive in exercising the new
powers of suspension and cancellation contained in the Child Protection
Act 1999.
In addition, the section clarifies that the commissioner can notify the chief
executive of the Department of Communities of the issue of a prescribed
notice to a nominee of a licensee or an adult occupant of a licensed home
based service. This amendment rectifies a current inconsistency in the
Commission for Children and Young People and Child Guardian Act 2000
as under section 119C the commissioner can already notify the chief
executive of the Department of Communities of the suspension of a
nominee or adult occupants blue card. Accordingly the commissioner
should also have the power to notify of the issue of the original prescribed
notice.
Replacement of s 104B (Starting employment)
Clause 35 inserts a new section 104B to clarify existing provisions to the
effect that a volunteer cannot commence in regulated employment until
they have been issued with a positive prescribed notice. The provision also
inserts a note regarding the application of this section to adult household
members under the Child Protection Act 1999.
44
Child Safety (Carers) Amendment Bill 2006
104BA Currency of prescribed notice for person continuing
employment
Clause 35 also inserts a new section 104BA. The primary purpose of this
section is to provide flexibility for volunteers who have previously been
issued a positive prescribed notice and who are lodging an application for
renewal of their blue card. On the condition that the application for a
further prescribed notice is made by an employer 30 days prior to expiry of
the previously issued blue card the employee's blue card will remain
current (unless it is cancelled or suspended), despite its expiry, until the
application is decided or withdrawn.
Amendment of s 108 (Person holding negative notice, or who
has withdrawn consent to employment screening, not to apply
for, or start or continue in, regulated employment)
Clause 36 amends existing section 108 (2) of the Commission for Children
and Young People and Child Guardian Act 2000 to clarify that persons who
withdraw their consent to employment screening (pursuant to section
123(2)) or whose application is withdrawn because they have been charged
with an excluding offence (pursuant to section 123 (3B) will not be
permitted to start or continue work in regulated employment until they
receive a positive prescribed notice.
Insertion of new s 109A
Clause 37 adds new section 109A which provides that on the condition an
application for a further prescribed notice is made by a person carrying on a
regulated business 30 days prior to expiry of the previously issued blue
card, the person's blue card will remain current (unless it is cancelled or
suspended), despire its expiry, until the application is decided or
withdrawn.
Amendment of s 119A (Cancellation if conviction for excluding
offence and imprisonment or disqualification order)
Clause 38 amends existing subsections 119A(4)(c) and (d) to clarify that
the commissioner is only obliged to notify entities specified in the Act of
the issue of a negative notice where the commissioner is aware that a
person fits within a specified group. This minor amendment will achieve
consistency with existing section 102B which already requires the
commissioner to be aware of a person's status within a specified group
before being obliged to make notification to a prescribed entity.
45
Child Safety (Carers) Amendment Bill 2006
The provision also amends existing section 119A(4) to allow the
commissioner to give written notice of the cancellation of a positive notice
and the issue of a negative notice to the chief executive of the Department
of Child Safety, where the person whose card has been cancelled is the
nominee for, or an executive officer of an applicant for, or the holder of a
licence under the Child Protection Act 1999. The clause also inserts a new
subsection which specifies that where such a notification is provided to the
chief executive the commissioner must specify that the negative notice was
issued in accordance with section 119A. Where a negative notice is issued
in accordance with section 119A, a person does not have a right of review.
This is information relevant to the chief executive in exercising the new
powers of suspension and cancellation contained in the Child Protection
Act 1999.
Amendment of s 119C (Effect of charge for excluding offence
pending charge being dealt with)
Clause 39 amends existing subsections 119C(5)(c) and (d) to clarify that
the commissioner is only obliged to notify entities specified by the Act of
the suspension of a blue card where the commissioner is aware that a
person fits within a specified group. This minor amendment will achieve
consistency with existing s 102B and the proposed amendments to
subsections 119A(4)(c) and (d).
The clause also amends existing section 119C (5) to allow the
commissioner to notify the chief executive of the Department of Child
Safety of the suspension of a blue card (and the effect of that suspension) of
a nominee for, or an executive officer of, an applicant for, or the holder of,
a licence under the Child Protection Act 1999.
Amendment of s 121 (Person may apply for review of decision)
Clause 40 amends subsection (1) of section 121 of the Commission for
Children and Young People and Child Guardian Act 2000 to clarify when
an application to review a decision of the Commissioner can be made. The
subsection now clarifies that a person may only apply for review of the
following decisions of the Commissioner - a decision to issue a negative
notice, a decision to refuse to cancel a negative notice and decision that a
person has been charged with an excluding offence (where the person
alleges that they are not the person charged with the relevant excluding
offence). The reference in the current section 121 to the right to apply for
review of the Commissioner's decision to refuse to cancel a suspension of a
positive notice has been amended. The simplification of this section
46
Child Safety (Carers) Amendment Bill 2006
merely clarifies and supports the current legislative provisions and
intention that an applicant can only apply for the cancellation of a
suspension when the charge resulting in the suspension has been finalised.
Once a charge has been finalised the legislation (pursuant to s 119A(2),
119B(2) &119D(3)) prescribes that the suspension must be cancelled and a
further positive or negative notice must be issued.
Accordingly the right to review a decision of the Commissioner to refuse to
cancel a suspension does not need to be provided for in section 121, except
in the case where the Commissioner suspends a positive notice on the basis
that a person has been charged with an excluding offence and the person
wishes to challenge that he or she is not in fact the person who has been
charged with the relevant excluding offence.
Section 121 as amended provides a person with a right of review in the
limited circumstances where the person claims that he or she is not in fact
the person who has been charged with the relevant excluding offence.
Amendment of s 122 (Commissioner may obtain information
from police commissioner)
Clause 41 amends the existing section 122 (1)(b), which relates to the
commissioner's ability to obtain information from the police commissioner
in respect of police information. The amendment is technical in nature and
is made to achieve internal consistency within the Act, in relation to the
concept of withdrawal of applications (specifically the amendment is made
necessary by insertion of the new section 123 (5) which clarifies that where
a person is taken to have withdrawn their consent under that section, or
withdraws their consent, the application is also taken to be withdrawn).
Amendment of s 122A (Notice of change in police information
about a person)
Clause 42 amends section 122A of the Commission for Children and Young
People and Child Guardian Act 2000. The current wording of section
122A of the Act is unclear in that it requires a person to be charged with an
offence in order for the section to operate but also refers to the provision of
investigative information under the section. However, under the definition
of investigative information, a person is not charged with an alleged
offence.
Accordingly, this amendment inserts new subclauses (1) and (1A) into
section 122A, to clarify that the Police Commissioner is permitted to
provide the Commissioner with information about a change in a relevant
47
Child Safety (Carers) Amendment Bill 2006
person's criminal history or that a decision has been made that investigative
information exists in relation to a relevant person.
Subclause (1)(b) when read in conjunction with subclause (1A)(b)
specifically provides that the Police Commissioner may notify the
Commissioner that investigative information exists in relation to a relevant
person regardless of when the act or omission occurred or is alleged to have
occurred. This enables the Police Commissioner to provide investigative
information to the Commissioner from 17 January 2005, regardless of the
fact that the investigation in relation to the alleged act or omission may
have occurred prior to this time.
Amendment of s 123 (Withdrawal of employee's consent to
employment screening)
Clause 43 inserts new section 123(5) to clarify that where an employee
withdraws their consent, or is taken to have withdrawn their consent under
the part, the application for a prescribed notice is also taken to be
withdrawn. The amendment is technical in nature and clarifies the
meaning of the term "withdrawal" in the Act.
The clause also renumbers current section 123 (5) as section 123 (6).
Insertion of new s 123A
Clause 44 inserts a new section 123A, to outline the persons and entities
the commissioner must notify where an applicant for a prescribed notice
has previously had a negative prescribed notice issued to them or their
application is withdrawn. The section specifically provides that if
notification is made regarding a negative notice the notification must
contain the date that the negative notice was issued.
The section contains specific power for the commissioner to notify the
chief executive of the Department of Child Safety where a negative notice
was issued under section 102(6)(a) or section 119A of that fact. It is
necessary for this information to be provided as it is relevant to the new
suspension and cancellation powers of the chief executive.
Amendment of s 126 (Use of information obtained under this
part about a person)
Clause 45 amends section 126 of the Commission for Children and Young
People and Child Guardian Act 2000 by including a cross-reference to a
report to the Minister under (amended) section 163. In effect, this
48
Child Safety (Carers) Amendment Bill 2006
amendment confirms that it is permissible for employment screening
information about a person, which has been obtained under Part 6 of the
Commission for Children and Young People and Child Guardian Act 2000,
to be used to inform that report.
Amendment of s 126B (Commissioner may give information to
accreditation board about director of school's governing body)
Clause 46 amends existing section 126B(2), which provides for
information to be given by the commissioner to an accreditation board,
where a person has applied for a prescribed notice as a director of a
school's governing body. New subsection 126B(2)(c) is inserted by this
clause to allow the commissioner to notify an accreditation board where an
application by a director of a school's governing body has been withdrawn.
Insertion of new s 126D
Clause 47 inserts a new section 126D. The purpose of this section is to
allow the commissioner to notify the chief executive of the Department of
Child Safety where an applicant for a prescribed notice (whose application
is pending) has had a change in their criminal history after lodging their
application for a blue card and has been charged with, or convicted of, a
serious offence. The power of the commissioner to notify the chief
executive under this section is limited to certain groups of applicants who
may have children in their care pending the outcome of their blue card
applications:
� provisionally approved carers;
� adult members of a provisionally approved carer's household;
� existing approved carers;
� adult members of an existing approved carer's household; or
� adult members of households who join the household after an
application is made for a carer authority or where an authority
has already been issued.
The section will apply only where the chief executive has notified the
commissioner that a person is within one of these classes of persons listed
above. The chief executive can, upon receiving this notification, act,
subject to the provisions of the Commission for Children and Young People
and Child Guardian Act 2000 and the Child Protection Act 1999, to
minimise any risk of harm to children in the care and custody of the state.
This section will operate in conjunction with the existing section 122B,
49
Child Safety (Carers) Amendment Bill 2006
which provides for notification of changes in the criminal history of blue
card holders.
Amendment of s 152 (Confidentiality of information about
criminal history)
Clause 48 amends section 152 of the Commission for Children and Young
People and Child Guardian Act 2000. Subclause (1) inserts a new
subsection 152(2A) to enable the Minister, in that capacity, to receive
certain employment screening information (whether written or verbal)
from the Commissioner, under section 163, without being in breach of the
confidentiality requirements under section 152.
Subclause (2) inserts two new paragraphs 152(4)(ba) and (bb) to enable a
person who is, or who has been the Minister or staff of the Minister, a
public service officer of the department, Commissioner, or staff member of
the Commission, to disclose information or give access to a document
relating to a person's criminal history gained in that capacity, in order to
obtain or provide advice to the Minister, relating to that employment
screening information.
Subclause (3) amends subsection 152(4)(d) to clarify that disclosure of, or
access to, confidential information, where it is authorised for a report to the
Minister under section 163, is not an offence under section 152(3).
Subclause (4) then renumbers section 152(4)(ba) to (d) as 152(4)(c) to (f)
as a consequence of inserting paragraphs (ba) and (bb).
Amendment of s 153 (Confidentiality of other information)
Clause 49 amends section 153 of the Commission for Children and Young
People and Child Guardian Act 2000. Subclause (1) and (2) insert new
paragraphs 153(3)(aa) and (ba) to provide that the Minister, staff of the
Minister, or public service officer of the department are subject to a
maximum penalty of 100 penalty units ($7,500) if they make a record,
intentionally disclose (unless authorised under section 153(4)), or
recklessly disclose to anyone, confidential information that has been gained
through the administration of the Commission for Children and Young
People and Child Guardian Act 2000.
Subclause (3) renumbers paragraphs 153(3)(aa) to (d) as subsections
153(3)(a) to (f) as a consequence of the inserting paragraphs (aa) and (ba).
Subclause (4) inserts a new subsection 153(5). Subsection (5) makes clear
that under subsection (4), an authorised purpose under the Commission for
50
Child Safety (Carers) Amendment Bill 2006
Children and Young People and Child Guardian Act 2000 includes making
a record or disclosing information to the Minister or staff of the Minister,
public service officer of the department, Commissioner, or staff member of
the Commission, in order to obtain or provide advice relating to a report to
the Minister under section 163.
Amendment of s 161 (Protection from liability)
Clause 50 amends section 161 of the Commission for Children and Young
People and Child Guardian Act 2000. Subclauses (1) and (2) insert new
paragraphs 161(3)(aa) and (ba) to provide that the Minister, staff of the
Minister, and public service officers of the department, are also afforded
protection from civil liability for acts done or omissions made honestly and
without negligence, under the Commission for Children and Young People
and Child Guardian Act 2000.
Subclause (4) renumbers subsections 161(3)(aa) to (d) as subsections (a) to
(f) as a consequence of inserting paragraphs (aa) and (ab).
Replacement of s 163 (Other reports relating to commissioner's
functions)
Clause 51 deletes existing section 163 of the Commission for Children and
Young People and Child Guardian Act 2000 (Other reports relating to
commissioner's functions) and replaces it with new section 163 (Other
reports by commissioner).
This amendment enables the Commissioner to provide reports to the
Minister in relation to the administration of the Commission for Children
and Young People and Child Guardian Act 2000, including the
Commissioner's performance, and exercise of functions and powers, both
on request of the Minister, or on the Commissioner's own motion. The
clause further clarifies the report to the Minister may include any
employment screening information about a person, which is subject to the
confidentiality requirements under sections 126, 152(1)(b) or 153.
Amendment of s 163A (Annual report by commission)
Clause 52 amends section 163A of the Commission for Children and Young
People and Child Guardian Act 2000 by inserting new paragraph (c) to
provide that the annual report for the Commission for Children and Young
People and Child Guardian must include the number of times the Minister
asked the Commissioner to provide a report under section 163 during the
year.
51
Child Safety (Carers) Amendment Bill 2006
Insertion of new s 164A
Clause 53 inserts a new section 164A which provides for the commissioner
and the chief executive to enter into an agreement about the administration
of Part 6. New s 164(2) specifies that this agreement may provide for the
daily electronic transfer of information. The provision contains the
safeguard in subsection (3) that if information is to be transferred
electronically, and there is a limitation on who may access the information
and how it may be used, the arrangement should provide for the limitation.
Insertion of new pt 9, div 8
Clause 54 inserts after existing section 195 of the Commission for Children
and Young People and Child Guardian Act 2000, a new part 9 division 8
(Further transitional provisions for the Commission of Children and Young
People and Child Guardian Amendment Act 2004), comprising new
sections 196 to 206.
New section 196 inserts definitions relevant to the transitional provisions
for the following terms: commencement, post-amended Act, pre-amended
Act, relevant applicant, relevant application, and suitability notice.
New section 197 states that the purpose of new division 8 of part 9 is to
clarify and declare which legislation is to be applied in particular
circumstances to:
(a) outstanding applications for suitability notices received prior to 17
January 2005; and
(b) outstanding applications and assessments relevant to whether or not a
suitability notice should be cancelled, where the assessment or
application was commenced before 17 January 2005.
Whether the application for a suitability notice or the assessment or
application relevant to whether the suitability notice should be cancelled is
determined under the pre-amended or amended Act, will depend on
whether particular additional information has been received by the
Commissioner on or after 17 January 2005.
New section 198 declares the law in relation to applications for suitability
notices received by the Commissioner prior to 17 January 2005, which
were outstanding at commencement, and in relation to which the
Commissioner has not received any police information or disciplinary
information on or after 17 January 2005. These applications are to be
assessed and determined in accordance with the pre-amended Act. The
section also provides that once a decision has been made in relation to the
52
Child Safety (Carers) Amendment Bill 2006
outstanding application, a prescribed notice is to be issued under the
amended Act and that the amended Act will apply to the prescribed notice
from that time.
However, the exception to this is if a negative notice is issued, the applicant
is only entitled to apply for a review of the Commissioner's decision under
the pre-amended Act. The pre-amended Act will therefore apply to the
application for review, the review, any decision on review, and any appeal
in relation to the decision.
New section 199 declares the law in relation to applications for suitability
notices received by the Commissioner prior to 17 January 2005, which
were outstanding at commencement, and in relation to which the
Commissioner has received police information or disciplinary information
on or after 17 January 2005. These applications are to be assessed and
decided in accordance with the amended Act.
The amended Act will then continue to apply to the prescribed notice, in
particular in relation to any application for review, the review, any decision
on review, and any appeal in relation to the decision.
New section 200 validates decisions made by the Commissioner in relation
to applications for suitability notices received before 17 January 2005 but
decided between 17 January 2005 and the commencement of this section.
These decisions are deemed valid irrespective of whether the pre-amended
or amended legislation was applied in deciding the application.
The section also provides that once a decision has been made by the
Commissioner, irrespective of whether it was made under the pre-amended
or amended legislation, the amended legislation applies. The only
circumstance in which the pre-amended Act continues to apply is in
relation to an application for review of a decision of the Commissioner
made under the pre-amended Act to issue a negative notice. In this
circumstance the pre-amended Act applies to any application for review,
the review, any decision on review, and any appeal in relation to the
decision.
Similarly, if the application was decided under the amended Act, the
amended Act will apply to the application for review, the review, any
decision on review, and any appeal in relation to the decision.
New section 201 clarifies the mechanism by which information is
communicated between the Commissioner and Police Commissioner in
relation to applications for suitability notices received by the
Commissioner prior to 17 January 2005 but which are outstanding at
commencement of this section.
53
Child Safety (Carers) Amendment Bill 2006
This section clarifies that a relevant application as defined in section 196 is
deemed to be an application for a prescribed notice that has not been
withdrawn for the purposes of section 122 and section 122A. This ensures
that the Commissioner can receive all police information from the Police
Commissioner and take this information into account when assessing an
outstanding application, regardless of when the application for a suitability
notice was made.
New section 202 declares the law to be applied in relation to suitability
notices about which the Commissioner received, prior to 17 January 2005,
either an application to cancel the suitability notice (under sections 118 or
119 of the pre-amended Act), or information relevant to whether the
suitability notice might be cancelled (pursuant to section 119 of the pre-
amended Act), but no decision had been made at commencement in
relation to the application or assessment. In these circumstances, the
application or assessment relevant to the potential cancellation of the
suitability notice was commenced prior to 17 January 2005 and
accordingly the pre-amended Act will be applied in determining the
application or assessment.
The exception to this is if further information relating to the suitability
notice is received by the Commissioner on or after 17 January 2005 which
would invoke the operation of section 119(1) or (2) of the amended Act. In
this circumstance, the post-amended Act is to be applied in determining the
application or assessment.
This section also provides that once a decision has been made by the
Commissioner, irrespective of whether it is made under the pre-amended or
amended legislation, the amended legislation applies. The only
circumstance in which the pre-amended Act continues to apply is in
relation to an application for review of a decision of the Commissioner
made under the pre-amended Act to issue or refuse to cancel a negative
notice. In this circumstance, the pre-amended Act applies to any
application for review, the review, any decision on review, and any appeal
in relation to the decision.
New section 203 validates decisions made by the Commissioner between
17 January 2005 and the commencement of this section, to cancel, or
refuse to cancel, a suitability notice under sections 118 or 119, regardless
of whether the pre-amended or post-amended legislation was applied in
making this decision.
The section also stipulates that the amended Act now applies in relation to
the cancellation or refusal, irrespective of whether the decision was based
on the pre-amended or amended legislation. However an exception applies
54
Child Safety (Carers) Amendment Bill 2006
where the Commissioner made a decision to cancel or refuse to cancel, a
suitability notice under the pre-amended legislation. In this case, the pre-
amended Act continues to apply to any application for review, the review,
any decision on review, and any appeal in relation to the decision.
New section 204 declares that where the Commissioner made a decision
prior to 17 January 2005 which resulted in an application for review being
made before commencement of this section ("a previous application for
review") and in relation to which a final decision has not been made by the
Tribunal as at commencement, the pre-amended Act will apply to the
application for review, the review, any decision on review and any appeal in
relation to the decision.
The section also provides that if before commencement the Tribunal had
started to hear a previous application for review but had not made a final
decision it may for the purposes of subsection (1) exercise its powers under
the Children Services Tribunal Act 2000 and issue directions in relation to
the previous application for review and the hearing. The section also
stipulates that if, as at commencement, the Tribunal has made a final
decision in relation to a previous application for review, the pre-amended
Act will apply in relation to any appeal arising from the decision. Likewise
where the Tribunal has, before commencement, made a decision in relation
to a previous application for review to set aside the decision of the
Commissioner and return it to the Commissioner for reconsideration the
pre-amended Act will apply to the reconsideration.
New section 205 declares that the amended Act applies in relation to
suitability notices issued by the Commissioner:
� under the Commission for Children and Young People and Child
Guardian Act 2000 prior to being amended by the Commission for
Children and Young People and Child Guardian Amendment Act
2004, which at 17 January 2005 were current; and
� prescribed notices issued between 17 January 2005 and before this
Act commenced.
For these notices, the Commission for Children and Young People and
Child Guardian Act 2000 as amended by this Bill now applies, unless a
provision in Part 9, division 8 states that the pre-amended legislation
applies, or Part 9, Division 7 otherwise provides.
New section 206 states that where in an Act or in a document a reference is
made to a "prescribed notice", if appropriate in the context it should be
taken to be a reference to a "suitability notice" under the Commission for
Children and Young People and Child Guardian Act 2000 prior to being
55
Child Safety (Carers) Amendment Bill 2006
amended by the Commission for Children and Young People and Child
Guardian Amendment Act 2004.
Reference is to be made to the following table regarding the application of
the amendments.
Circumstances Law Commissioner to apply in Authority Law Commissioner to apply Authority Law to apply in relation to Authority
making decision (about post decision review of Commissioner's
application / information) decision and any appeal in
relation to a decision on
review
OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS
Application for suitability notice: Pre-amended Act 198(1), (2) Post-amended Act (except 198(5) Pre-amended Act 198(6)
in relation to reviewing 198(3), (4)
� received before 17/01/2005
decision to issue a negative
� not decided as at 17/01/2005
notice)
� not decided at commencement of
Prescribed notice, whether
amendments
positive or negative, is
� no police or disciplinary information
received on or after 17/01/05 (and issued under the post-
before decision to issue positive or amended Act
negative notice made)
56
Application for suitability notice: Post-amended Act 199 Post-amended Act 199 Post-amended Act 199
� received before 17/01/2005
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� police or disciplinary information
received on or after 17/01/05 (and
before decision to issue positive or
Child Safety (Carers) Amendment Bill 2006
negative notice made)
Circumstances Law Commissioner to apply in Authority Law Commissioner to apply Authority Law to apply in relation to Authority
making decision (about post decision review of Commissioner's
application / information) decision and any appeal in
relation to a decision on
review
OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS
Application to cancel negative notice Pre-amended Act 202(1) & Post-amended Act (except 202(3) Pre-amended Act 202(4)
(under s.118): (2) in relation to reviewing a
decision not to cancel a
� received before 17/01/2005
negative notice)
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� no information received on or after 17/
01/05 (and before decision whether or
not to cancel suitability notice) which
would allow a power under s 119 (1) or
(2) of the amended Act to be exercised
57
Application to cancel negative notice Post-amended Act 202(5) & Post-amended Act 202(6) Post-amended Act 202(6)
(under s.118): (6)
� received before 17/01/2005
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� information received on or after 17/01/
05 (and before decision whether or not
Child Safety (Carers) Amendment Bill 2006
to cancel suitability notice) which
would allow a power under s 119 (1) or
(2) of the amended Act to be exercised.
Circumstances Law Commissioner to apply in Authority Law Commissioner to apply Authority Law to apply in relation to Authority
making decision (about post decision review of Commissioner's
application / information) decision and any appeal in
relation to a decision on
review
OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS
Wrong, incomplete, or new information Pre-amended Act 202(1) & Post-amended Act (except 202(3) Pre-amended Act 202(4)
about a suitability notice (under s.119): (2) in relation to reviewing a
decision to issue, or not to
� received before 17/01/2005
cancel, a negative notice)
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� no information received on or after 17/
01/05 (and before decision whether or
not to cancel suitability notice) which
would allow a power under s 119 (1) or
(2) of the amended Act to be exercised
58
Wrong, incomplete, or new information Post-amended Act 202(5) & Post-amended Act 202(6) Post-amended Act 202(6)
about a suitability notice (under s.119): (6)
� received before 17/01/2005
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� information received on or after 17/01/
05 (and before decision whether or not
Child Safety (Carers) Amendment Bill 2006
to cancel suitability notice) which
would allow a power under s 119 (1) or
(2) of the amended Act to be exercised.
Circumstances Law Commissioner to apply in Authority Law Commissioner to apply Authority Law to apply in relation to Authority
making decision (about post decision review of Commissioner's
application / information) decision and any appeal in
relation to a decision on
review
OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS
Application for review: N/A N/A Post-amended Act 205 Pre-amended Act 204
� made before commencement of this
Bill
� in relation to a decision of the
Commissioner made under pre-
amended Act prior to 17 January 2005
� no final decision has been made by the
Tribunal as at commencement of this
Bill
MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS
59
Application for suitability notice: Decisions made under pre- 200(1), (2) Post-amended Act (except 200(2) Pre-amended Act 200(3)
amended Act (to issue a in relation to reviewing
� received before 17/01/2005
positive or negative notice) decision to issue a negative
� not decided as at 17/01/2005
are validated notice)
� decided on or after 17/01/05 and before
commencement of amendments
� decided under pre-amended Act
MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS
Child Safety (Carers) Amendment Bill 2006
Application for suitability notice: Decisions made under post- 200(1), (4) Post-amended Act 200(4) Post-amended Act 200(4)
amended Act (to issue a
� received before 17/01/2005
positive or negative notice)
� not decided as at 17/01/2005
are validated
� decided on or after 17/01/05 and before
commencement of amendments
� decided under post-amended Act
Circumstances Law Commissioner to apply in Authority Law Commissioner to apply Authority Law to apply in relation to Authority
making decision (about post decision review of Commissioner's
application / information) decision and any appeal in
relation to a decision on
review
OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS
Application to cancel negative notice Pre-amended Act 202(1) & Post-amended Act (except 202(3) Pre-amended Act 202(4)
(under s.118): (2) in relation to reviewing a
decision not to cancel a
� received before 17/01/2005
negative notice)
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� no information received on or after 17/
01/05 (and before decision whether or
not to cancel suitability notice) which
would allow a power under s 119 (1) or
(2) of the amended Act to be exercised
60
Application to cancel negative notice Post-amended Act 202(5) & Post-amended Act 202(6) Post-amended Act 202(6)
(under s.118): (6)
� received before 17/01/2005
� not decided as at 17/01/2005
� not decided at commencement of
amendments
� information received on or after 17/01/
05 (and before decision whether or not
Child Safety (Carers) Amendment Bill 2006
to cancel suitability notice) which
would allow a power under s 119 (1) or
(2) of the amended Act to be exercised.
Circumstances Law Commissioner to apply in Authority Law Commissioner to apply Authority Law to apply in relation to Authority
making decision (about post decision review of Commissioner's
application / information) decision and any appeal in
relation to a decision on
review
OUTSTANDING MATTERS, I.E. NOT DECIDED, AS AT COMMENCEMENT OF THESE AMENDMENTS
Wrong, incomplete, or new information Decisions made under pre- 203(1) Post-amended Act (except 203(3) Pre-amended Act 203(2)
about a suitability notice (under s.119): amended Act (to cancel a in relation to reviewing (application for review
positive notice or refuse to decision cancel a positive only applies in relation to
� received before 17/01/2005
cancel a negative notice or notice or refuse to cancel a decision to cancel a
� not decided as at 17/01/2005
to cancel a negative notice negative notice) positive notice or refuse
� decided on or after 17/01/05 and before
and substitute a positive to cancel a negative notice
commencement of amendments
notice) - there is no right of
� decided under pre-amended Act (to
cancel a positive notice or refuse to review of a decision to
cancel a negative notice or to cancel a cancel a negative notice
negative notice and substitute a positive
and issue a positive
notice)
61
notice).
MATTERS DECIDED ON OR AFTER 17/01/05 AND BEFORE COMMENCEMENT OF THESE AMENDMENTS
Wrong, incomplete, or new information Decisions made under post- 203(1) Post-amended Act 203(3) Post-amended Act 203(3)
about a suitability notice (under s.119): amended Act (to cancel a (application for review
positive notice or refuse to only applies in relation to
� received before 17/01/2005
cancel a negative notice or decision to cancel a
� not decided as at 17/01/2005
to cancel a negative notice positive notice or refuse
� decided on or after 17/01/05 and before
Child Safety (Carers) Amendment Bill 2006
and substitute a positive to cancel a negative notice
commencement of amendments
notice) - there is no right of
� decided under post-amended Act (to
cancel a positive notice or refuse to review of a decision to
cancel a negative notice or to cancel a cancel a negative notice
negative notice and substitute a positive
and issue a positive
notice)
notice).
62
Child Safety (Carers) Amendment Bill 2006
Insertion of new pt 9, div 9
Clause 55 inserts transitional provisions into the Commission for Children
and Young People and Child Guardian Act 2000 with respect to the Child
Safety (Carers) Amendment Act 2006.
The clause inserts sections 207 - 210, the purpose of which is to allow
time for persons to comply with the new screening provisions where they
are currently engaging in employment or carrying on businesses which
will, after commencement, fall within schedule 1, sections 6G and 16.
Section 207 inserts a definition of commencement for the purposes of the
division as the day on which the provision in the term commences.
The new sections 208 - s 210 will allow persons currently engaged in what
will become regulated employment within the meaning of schedule 1,
section 6G, and regulated business within schedule 1, section 16, to
continue that employment or business, provided that an application is
lodged for a prescribed notice within 6 months of the commencement of
the Act. On the condition that an application for a prescribed notice is
made within 6 months of commencement such persons will be able to
continue in regulated employment or business until the earlier of a notice
being issued or the application withdrawn. The provisions also clarify that
persons to whom these transitional provisions apply and who are engaged
in regulated employment are obliged to notify their employer of changes in
their criminal history from when they first make application for a
prescribed notice. Likewise persons carrying on a regulated business to
whom these transitional provisions apply become subject to the obligations
to make application for a further prescribed notice where they have a
change in criminal history once they make application for a prescribed
notice.
The clause also inserts new sections 211 and 212 which are transitional
provisions to provide for applications for certificates of approval or
licenses made to the chief executive before commencement under the Child
Protection Act 1999 which have not been decided as at the date of
commencement. The new sections will allow these persons issued with an
approval (and members of their households as at the time of approval) or a
licence after commencement in these situations to continue in regulated
employment or regulated business provided that an application for a
prescribed notice is lodged within 6 months of the commencement of the
Act. On the condition that an application for a prescribed notice is made
within 6 months of commencement, such persons will be able to continue
in regulated employment or business until the earlier of a notice being
issued or the application withdrawn.
63
Child Safety (Carers) Amendment Bill 2006
Amendment of sch 1 (Regulated employment and businesses
for employment screening)
Clause 56 makes minor technical amendments to Schedule 1 section 1
(2)(b) and section 5 (2)(b) to reflect the new definition of "licensed care
service" being added to the dictionary of the Act.
In addition the clause amends the existing Schedule 1 list of regulated
employment and regulated business. The purpose of these amendments is
to add a new section 6G category of "care of children under the Child
Protection Act 1999" as a category of regulated employment, and a new
section 16 category of "businesses relating to licensed care service under
the Child Protection Act 1999" as a category of regulated business.
A new section 6G is inserted in the categories of regulated employment
contained in schedule 1 which will have the effect of requiring the
following persons to apply for a prescribed notice:
� approved foster and kinship carers;
� adult members (including persons who stay overnight the home
regularly) of a foster or kinship carer's household;
� persons whose employment is carried out inside a licensed residential
facility; and
� persons who are employed by a licensed care service and provide
support for an approved carer.
New section 16 in schedule 1 inserts a new category of regulated business.
The section states that a business will be a regulated business if the usual
activities include a licensed care service, or if any of the usual functions of
the business includes carrying out activities or providing services inside a
licensed residential facility.
Amendment of sch 4 (Dictionary)
Clause 57 amends the dictionary contained within schedule 4 of the Act,
inserting new definitions of a technical nature and cross references terms to
the Commission for Children and Young People and Child Guardian Act
2000 or to provisions of the Child Protection Act 1999.
� State of Queensland 2006