Division 2Authorisations by designated
agencies
29Definitions
In this Division:
authorised carer means an individual
authorised as an authorised carer by a designated agency.
designated agency, in relation to an
authorised carer, means the designated agency that authorised the authorised
carer.
supervising person means:
(a)
the Director-General (or an officer delegated the
Director-General’s functions for the purposes of this clause),
or
(b)
an officer or employee of the designated agency
that has supervisory responsibility for a child or young person in the care of
an authorised carer.
30Authorisation by a designated
agency as an authorised carer—general
authorisation
(1)
A designated agency may authorise an individual
belonging to any of the following classes of individuals as an authorised
carer (other than an authorised carer referred to in clause 31 (1), 32 (2) or
33 (2)):
(a)
an employee of the agency whose duties as an
employee include:
(i)
providing care for children or young persons,
or
(ii)
supervising the provision of care for children or
young persons,
(b)
an individual engaged by the agency under a
contractual arrangement (other than as an employee) to provide services that
include:
(i)
providing care for children or young persons,
or
(ii)
supervising the provision of care for children or
young persons,
(c)
an employee of an individual referred to in
paragraph (b) whose duties as an employee include providing care for children
or young persons,
(d)
an individual who cares for children or young
persons in his or her private capacity.
(2)
A designated agency must not authorise an
individual under subclause (1) unless the agency has determined that the
individual is suitable to be an authorised carer.
(3)
A designated agency must not determine that an
individual is suitable to be an authorised carer under subclause (2)
unless:
(a)
the individual has furnished to the agency such
information as the agency may reasonably require in order to assess the
individual’s suitability to be an authorised carer,
and
(b)
the individual has successfully completed such
course of training as the agency may reasonably require in order to ensure
that the individual is capable of exercising the functions of an authorised
carer, and
(c)
the agency is satisfied that the individual has
complied with the requirements of the Child Protection
(Working with Children) Act 2012 for engaging in
child-related work as an authorised carer, and
Note—
Section 10 of the Child Protection
(Working with Children) Act 2012 requires adults residing
at the homes of authorised carers (other than carers who are exempt from that
Act) to hold working with children check clearances. The designated agency
that authorises the authorised carer concerned must ensure that the adults
comply with the requirement.
(d)
having regard to the functions imposed on an
authorised carer by or under the Act, any information possessed by the agency
and all the circumstances of the case, the agency has estimated:
(i)
the risk, if any, to any child or young person in
authorising the individual as an authorised carer, including any risk arising
from the particular place at which the authorised carer will be providing
out-of-home care, and
(ii)
the risk, if any, that the individual may be
unable to properly perform the functions of an authorised
carer.
(4)
For the purpose of determining whether an
individual is suitable to be an authorised carer under subclause (2), the
designated agency may make such inquiries as to the individual, and as to each
individual who is aged 14 years or above in the household of the individual,
as the agency considers appropriate, including:
(a)
subject to the Criminal Records
Act 1991—a check for any criminal record of the
individual (whether or not within New South Wales), and
(b)
any other relevant probity check relating to the
previous employment or other activities of the
individual.
(5)
The principal officer of a designated agency is
to carry out the functions of the agency under subclause (1), unless the
Children’s Guardian approves the carrying out of those functions by
another individual.
(6)
Failure to comply with subclause (5) does not
affect the validity of the authorisation of any authorised carer under this
Regulation, whether the authorisation occurred before or after the
commencement of this subclause.
cl 30: Am 2013 (157),
Sch 1 [1].
31Authorisation by a designated
agency as an authorised carer—emergency
authorisation
(1)
A designated agency may, in an emergency,
authorise an individual who is a relative or kin of a child or young person as
an authorised carer for the child or young person (other than an authorised
carer referred to in clause 30 (1), 32 (2) or 33 (2)).
(2)
A designated agency must not authorise an
individual under subclause (1) unless the agency has determined that the
individual is suitable to be an authorised carer.
(3)
A designated agency must not determine that an
individual is suitable to be an authorised carer under subclause (2)
unless:
(a)
the individual has furnished to the agency such
information as the agency may reasonably require in order to assess the
individual’s suitability to be an authorised carer,
and
(b)
the agency is satisfied that the individual has
complied with any applicable requirements of the Child
Protection (Working with Children) Act 2012 for engaging
in child-related work as an authorised carer, and
Note 1—
The Child Protection
(Working with Children) Regulation 2013 provides for a
short-term (5 consecutive working days) exemption from the requirement to hold
or complete an application for a working with children check
clearance.
Note 2—
Section 10 of the Child Protection
(Working with Children) Act 2012 requires adults residing
at the homes of authorised carers (other than carers who are exempt from that
Act) to hold working with children check clearances. The designated agency
that authorises the authorised carer concerned must ensure that the adults
comply with the requirement.
(c)
having regard to the functions imposed on an
authorised carer by or under the Act, any information possessed by the agency
and all the circumstances of the case, the agency has estimated:
(i)
the risk, if any, to any child or young person in
authorising the individual as an authorised carer, including any risk arising
from the particular place at which the authorised carer will be providing
out-of-home care, and
(ii)
the risk, if any, that the individual may be
unable to properly perform the functions of an authorised
carer.
(4)
For the purpose of determining whether an
individual is suitable to be an authorised carer under subclause (2), the
designated agency may make such inquiries as to the individual, and as to each
individual who is aged 14 years or above in the household of the individual,
as the agency considers appropriate, including:
(a)
subject to the Criminal Records
Act 1991—a check for any criminal record of the
individual (whether or not within New South Wales), and
(b)
any other relevant probity check relating to the
previous employment or other activities of the
individual.
(5)
(6)
It is a condition of an authorisation under this
clause that:
(a)
only children or young persons who are relatives
or kin of the authorised carer be placed in the care of the carer,
and
(b)
the authorised carer take all reasonable steps to
become an authorised carer under clause 30, and
(c)
the authorised carer furnishes to the agency such
further information as the agency may reasonably require in order to continue
to assess the carer’s suitability to:
(i)
continue to be an authorised carer under this
clause, and
(ii)
become an authorised carer under clause 30,
and
(d)
within 3 months after the placement of a child or
young person with the authorised carer, the carer must successfully complete
such course of training as the agency may reasonably require in order to
ensure that the individual is capable of exercising the functions of an
authorised carer (whether under this clause or clause
30).
(7)
Without limiting clause 42, an authorisation
under this clause ceases to have effect:
(a)
if the agency ceases to be satisfied that the
individual is complying with the applicable requirements of the Child Protection (Working with Children) Act
2012 for engaging in child-related work as an authorised
carer, or
(b)
if the authorised carer fails (or fails to
complete) the course of training referred to in subclause (6) (d),
or
(c)
in any event, 3 months after the placement of a
child or young person with the authorised carer.
Note—
A designated agency may cancel or suspend an
authorisation if the agency is of the opinion that the authorised carer is no
longer a suitable person to be an authorised carer—see clause 42
(a).
(8)
The principal officer of a designated agency is
to carry out the functions of the agency under subclause (1), unless the
Children’s Guardian approves the carrying out of those functions by
another individual.
(9)
Failure to comply with subclause (8) does not
affect the validity of the authorisation of any authorised carer under this
clause.
(10)
In this clause, kin, in relation to a child or young
person, means a person who is not a relative of a child or young person, but
who shares a cultural, tribal or community connection with the child or young
person that is recognised by that child or young person’s family and
community.
(11)
This clause takes effect on 1 November
2012.
cl 31: Am 2013 (157),
Sch 1 [2]–[4].
32Authorised carers authorised
by Department to enable special care
(1)
In this clause:
special
care provider means an organisation that the Department has
determined is suitable to provide special out-of-home care for children or
young persons.
special
out-of-home care for a child or young person means
out-of-home care provided for a child or young person who has an intellectual,
psychiatric, sensory, physical or similar impairment (or a combination of such
impairments) that:
(a)
is permanent or is likely to be permanent,
and
(b)
results in a significantly reduced capacity in
one or more major life activities, such as communication, learning, mobility,
decision-making or self-care.
(2)
The Department, in its capacity as a designated
agency, may authorise an individual belonging to any of the following classes
of individuals as an authorised carer who can provide special out-of-home
care:
(a)
an employee of a special care provider whose
duties as an employee include:
(i)
providing care for children or young persons,
or
(ii)
supervising the provision of care for children or
young persons,
(b)
an individual engaged by a special care provider
under a contractual arrangement (other than as an employee) to provide
services that include:
(i)
providing care for children or young persons,
or
(ii)
supervising the provision of care for children or
young persons.
(3)
The Department must not authorise an individual
under subclause (2) unless the relevant special care provider has:
(a)
informed the Department that the special care
provider is satisfied that the individual has complied with the requirements
of the Child Protection (Working with
Children) Act 2012 for the child-related work as an
authorised carer, and
(b)
done anything else it is required to do under
that Act in relation to the authorisation, whether before or after the
commencement of this clause.
Note—
Section 10 of the Child Protection
(Working with Children) Act 2012 requires adults residing
at the homes of authorised carers (other than carers who are exempt from that
Act) to hold working with children check clearances. The designated agency
that authorises the authorised carer concerned must ensure that the adults
comply with the requirement.
(4)
The Department must not place a child or young
person in the out-of-home care of an individual authorised under subclause (2)
unless the Department has:
(a)
determined that the child or young person has
special needs for out-of-home care that can be best met by such a placement,
and
(b)
consulted the Children’s Guardian about the
placement.
cl 32: Am 2013 (157),
Sch 1 [5] [6].
33Authorised carers authorised
by designated agency to give respite to usual authorised
carers
(1)
In this clause:
respite
care provider means an organisation providing temporary
respite relief for authorised carers.
(2)
A designated agency may authorise an individual
belonging to any of the following classes of individuals as an authorised
carer who can provide respite for other authorised carers:
(a)
an employee of a respite care provider whose
duties as an employee include:
(i)
providing care for children or young persons,
or
(ii)
supervising the provision of care for children or
young persons,
(b)
an individual engaged by a respite care provider
under a contractual arrangement (other than as an employee) to provide
services that include:
(i)
providing care for children or young persons,
or
(ii)
supervising the provision of care for children or
young persons.
(3)
The designated agency must not authorise an
individual under subclause (2) unless the relevant respite care provider
has:
(a)
informed the agency that the respite care
provider is satisfied that the individual has complied with the requirements
of the Child Protection (Working with
Children) Act 2012 for the child-related work as an
authorised carer, and
(b)
done anything else it is required to do under
that Act in relation to the authorisation, whether before or after the
commencement of this clause.
Note—
Section 10 of the Child Protection
(Working with Children) Act 2012 requires adults residing
at the homes of authorised carers (other than carers who are exempt from that
Act) to hold working with children check clearances. The designated agency
that authorises the authorised carer concerned must ensure that the adults
comply with the requirement.
(4)
The principal officer of a designated agency is
to carry out the functions of the agency under subclause (2), unless the
Children’s Guardian approves the carrying out of those functions by
another individual.
(5)
Failure to comply with subclause (4) does not
affect the validity of any authorisation of an authorised carer under this
clause.
(6)
A designated agency must not place a child or
young person in the out-of-home care of an individual authorised under
subclause (2) unless the agency has given the Children’s Guardian notice
in writing of the name, and the street and postal address of the principal
place of business, of the respite care provider.
(7)
A designated agency must notify the
Children’s Guardian in writing if any child or young person is placed in
the out-of-home care of any individual or individuals authorised by the agency
under this clause for a period or periods amounting to more than 90 days in
any 12 month period.
cl 33: Am 2013 (157),
Sch 1 [7] [8].
34Conditions of
authorisations
(1)
A designated agency may at any time impose such
reasonable conditions as it thinks fit on the authorisation of an authorised
carer.
(2)
A designated agency may at any time vary or
revoke a condition of an authorisation imposed under subclause
(1).
(3)
The imposition, variation or revocation of a
condition takes effect when it is notified to the authorised carer in
writing.
(4)
It is a condition of an authorisation that the
authorised carer must comply with the code of conduct for authorised
carers.
(5)
In this clause:
code of
conduct for authorised carers means the code of conduct for
authorised carers approved by the Minister for the purposes of this definition
and published on the relevant website of the Department, as in force from time
to time.
Note—
The relevant website of the Department is
www.community.nsw.gov.au.
cl 34: Am 2013 (72),
Sch 1 [2] [3].
35Authorisations by designated
agencies to be in writing
(1)
A designated agency that authorises a person as
an authorised carer under clause 30, 31, 32 or 33 must cause the person to be
given a copy of the authorisation in writing.
(2)
The written authorisation must set out any
conditions of the authorisation imposed by the designated
agency.
36Personal responsibility of
authorised carers
An authorised carer is personally responsible for
carrying out the carer’s functions and duties as an authorised
carer.
37Inspection of home or
premises
An authorised carer must, at any reasonable hour
and on reasonable notice, permit a supervising person:
(a)
to inspect the home or premises at which the
authorised carer provides out-of-home care, and all of the authorised
carer’s records relating to a child or young person in out-of-home care,
and
(b)
to interview any child or young person in
out-of-home care.
38Medical
examination
An authorised carer must, if requested in writing
by the designated agency on the written advice of a medical
practitioner:
(a)
undergo, or cause a member of the authorised
carer’s household to undergo, such examination by a medical practitioner
as is reasonably necessary to ascertain whether the authorised carer’s
household is a healthy environment for the care of children or young persons,
and
(b)
provide a report of such examination to the
designated agency and to any other supervising person who requests that the
report be provided to it.
39Notice of change of
address
An authorised carer must, before changing his or
her residential address, cause notice in writing of the change to be given to
an officer or employee of the designated agency.
40Information to be provided to
designated agency
(1)
An authorised carer must provide the designated
agency with such information concerning the care of a child or young person as
the agency may from time to time reasonably require.
(2)
An authorised carer must immediately notify the
designated agency if any of the following occurs:
(a)
a child or young person leaves the care of the
authorised carer,
(b)
the child or young person is to be, or has
been:
(i)
expelled or suspended from school,
or
(ii)
absent without permission from the care of the
authorised carer for a period of 24 hours or more, or
(iii)
absent without permission (whether or not while
in the care of the authorised carer) from New South Wales for any
period,
(c)
the child or young person suffers a serious
accident, injury or illness,
(d)
the child or young person
dies,
(e)
the authorised carer:
(i)
becomes a parent to another child or young
person, or
(ii)
is charged with or convicted of an offence for
which a penalty of imprisonment for 12 months or more may be imposed,
or
(iii)
becomes aware that any members of his or her
household have been charged with or convicted of such an
offence,
(f)
a child, young person or other person joins the
authorised carer’s household.
41Management of behaviour of
children and young persons
(1)
An authorised carer, in correcting and managing
the behaviour of a child or young person in out-of-home care:
(a)
must not use:
(i)
any physical coercion or physical punishment
(including corporal punishment), or
(ii)
any punishment that takes the form of
immobilisation, force-feeding or depriving of food, or
(iii)
any punishment that is intended to humiliate or
frighten a child or young person, and
(b)
must, in any event, use only behaviour management
practices approved by the designated agency.
(2)
An authorised carer who finds that the approved
behaviour management practices are not sufficiently effective to correct or
manage the behaviour of a child or young person is to notify that fact as soon
as practicable to the designated agency.
(3)
On receiving a notification under subclause (2),
the designated agency, after assessing the situation, is to determine if the
problem should be addressed:
(a)
by providing appropriate advice, support and
training to the authorised carer and appropriate support to the child or young
person, or
(b)
by changing the placement
arrangements.
42Cancellation or suspension of
authorisations by designated agencies
A designated agency may, by notice in writing,
cancel or suspend the authorisation of an authorised carer if the agency is of
the opinion that the authorised carer:
(a)
is no longer a suitable person to be an
authorised carer, or
(b)
has failed to comply with any condition of the
authorisation, or
(c)
has failed to comply with any obligation or
restriction imposed on the authorised carer by the Act or this Regulation,
or
(d)
has failed to comply with a written direction to
the authorised carer by the designated agency or the Children’s Guardian
under section 157 (3) of the Act, or
(e)
has failed to uphold the Charter of Rights
prepared under section 162 of the Act.
Note—
Under section 245 (1) (a) of the Act, a decision
to cancel or suspend the authorisation of an authorised carer is reviewable by
the Administrative Decisions Tribunal.