An Act to repeal the Children (Care and Protection) Act 1987; to amend the Children’s Court Act 1987; and to amend certain other Acts as a consequence of the enactment of the Children and Young Persons (Care and Protection) Act 1998.
1 Name of Act
This Act is the Children and Young Persons Legislation (Repeal and Amendment) Act 1998.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Repeal of Children (Care and Protection) Act 1987 No 54
(1) The Children (Care and Protection) Act 1987 is repealed.(2) Different days may be appointed for the commencement of subsection (1) for the purpose of repealing, on different days, different provisions of the Children (Care and Protection) Act 1987.(3) For the purpose of giving effect to the amendment made by section 5 and Schedule 2.7, and despite the terms of that amendment:(a) a provision of the Children (Care and Protection) Act 1987 specified in Schedule 1 to the Commonwealth Powers (Family Law—Children) Act 1986 does not cease to be so specified until the provision is repealed pursuant to this section, and(b) a provision of the Children and Young Persons (Care and Protection) Act 1998 does not become a provision specified in Schedule 1 to the Commonwealth Powers (Family Law—Children) Act 1986 until the provision is commenced pursuant to section 2 of the Children and Young Persons (Care and Protection) Act 1998.s 3: Am 2000 No 76, Sch 3; 2000 No 93, Sch 2.5.
4 Amendment of Children’s Court Act 1987 No 53
The Children’s Court Act 1987 is amended as set out in Schedule 1.
5 Amendment of other Acts
Each Act specified in Schedule 2 is amended as set out in that Schedule.
Schedule 1 Amendment of Children’s Court Act 1987
(Section 4)
[1] Section 3 Definitions
Omit the definition of from section 3 (1).
[2] Section 3 (1)
Insert in alphabetical order:Children’s Registrar means a person employed as a Children’s Registrar as referred to in section 10A.
[3] Section 7 Appointment of Children’s Magistrates
Omit section 7 (2). Insert instead:(2) A person is qualified to be appointed as a Children’s Magistrate if the person:(a) is a Magistrate, and(b) has, in the opinion of the Chief Magistrate, such knowledge, qualifications, skills and experience in the law and the social or behavioural sciences, and in dealing with children and young people and their families, as the Chief Magistrate considers necessary to enable the person to exercise the functions of a Children’s Magistrate.
[4] Section 7 (2A)
Insert before section 7 (3):(2A) A Children’s Magistrate is to undertake and complete such ongoing courses of training as the Chief Magistrate may, in consultation with the Senior Children’s Magistrate, require.
[5] Section 8 (4)
Insert after section 8 (3):(4) On appointment, the Senior Children’s Magistrate is taken to be a Deputy Chief Magistrate appointed as such under section 15 (1) of the Local Courts Act 1982.
[6] Section 10 Authorised Magistrates
Omit the section.
[7] Section 10A
Insert before section 11:10A Children’s Registrars(1) Such Children’s Registrars as may be necessary to enable the Court to exercise its jurisdiction are to be employed under the Public Sector Management Act 1988.(2) A Children’s Registrar has such functions as may be conferred or imposed on a Children’s Registrar by the rules or by or under any other Act.
[8] Section 11 Other Registrars and other officers of the Court
Omit “Registrars”. Insert instead “Other Registrars”.
[9] Section 13 Single member to exercise jurisdiction of the Court
Omit section 13 (b) and the word “or” at the end of section 13 (a).
[10] Part 3A
Insert after section 15:Part 3A Advisory committee and clinic15A Children’s Court Advisory Committee(1) The Attorney General is to establish, in accordance with the rules, a Children’s Court Advisory Committee.(2) The Senior Children’s Magistrate is to be the Chairperson of the Committee.(3) The Committee has the following functions:(a) consulting with persons using the Court,(b) providing advice to the Attorney General and the Minister for Community Services,(c) providing advice to the Court on the rules of the Court, on practice directions and on procedures before the Court,(d) such other functions as may be conferred or imposed on the Committee by the rules or by or under any other Act.15B Children’s Court Clinic(1) The Attorney General is to establish and maintain, in accordance with the rules, a Children’s Court Clinic.(2) The Children’s Court Clinic has the following functions:(a) making clinical assessments of children,(b) submitting reports to courts,(c) such other functions as may be prescribed by the rules.
[11] Section 16 Functions of the Senior Children’s Magistrate
Omit “and” where lastly occurring in section 16 (1) (c).
[12] Section 16 (1) (d)
Omit “Court.”. Insert instead “Court,”.
[13] Section 16 (1) (e)–(g)
Insert after section 16 (1) (d):, and(e) provide judicial leadership to the Court, and(f) in conjunction with the Chief Magistrate, develop practice directions and recommendations for rules, and(g) oversee the training of Children’s Magistrates and prospective Children’s Magistrates in accordance with the rules.
[14] Section 17 Delegation
Omit section 17 (1) (b) and the word “or” at the end of section 17 (1) (a).
[15] Section 22 Judicial notice of signatures
Omit section 22 (c).
[16] Section 22 (d)
Omit the paragraph. Insert instead:(d) a Children’s Registrar or other Registrar of the Court,
[17] Section 24
Insert after section 23:24 Savings and transitional provisionsSchedule 2 has effect.
[18] Schedule 2
Insert after Schedule 1:Schedule 2 Savings and transitional provisions(Section 24)Part 1 Preliminary1 Saving and transitional regulations(1) The Governor may make regulations, not inconsistent with this Act, containing provisions of a savings or transitional nature consequent on the enactment of the following Acts:(2) Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.(3) To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:(a) to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or(b) to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.Part 2 Provisions consequent on enactment of Children and Young Persons Legislation (Repeal and Amendment) Act 19982 DefinitionsIn this Part, the amending Act means the Children and Young Persons Legislation (Repeal and Amendment) Act 1998.3 Children’s MagistratesA person holding the office of Children’s Magistrate immediately before the repeal and re-enactment of section 7 (2) by the amending Act may be reappointed to that office for one further term if the person is qualified under that subsection as in force immediately before its repeal and re-enactment.4 Authorised Magistrates(1) Despite the repeal of section 10 (2) by the amending Act, the Governor may, by proclamation published in the Gazette, revoke a proclamation under section 10 (1).(2) The provisions of this Act relating to authorised Magistrates continue to apply (as if they had not been repealed by the amending Act) to and in respect of each place specified in a proclamation under section 10 (1) (being a proclamation that had not been revoked before the repeal of section 10) until such time as the proclamation is revoked under subclause (1).5 Venue(1) Sittings of the Court may be held in the Court House:(a) at any place at which a Local Court is established (or is taken to have been established) for the time being under section 6 (1) of the Local Courts Act 1982, or(b) at any of the places specified in the Schedule to the proclamation under section 10 published in the Gazette on 27 November 1992 at page 8552.(2) Each Court House referred to in subclause (1) is taken to be a building approved under section 19 (1) (a). The Attorney General may, by notice published in the Gazette, revoke an approval under that section.
Schedule 2 Amendment of other Acts
(Section 5)
Omit Schedule 1.3.
[1] Section 6 Definitions
Omit the definition of Foster parent. Insert instead:Foster parent means any person who has the daily care and control of a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998.
[2] Section 18 Who may be adopted
Insert “or as a person under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998,” after “1987,” in section 18 (1) (b) (ii).
[3] Sections 24, 34 (4), 43 (2)
Omit “a ward under the Children (Care and Protection) Act 1987” wherever occurring.Insert instead “under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998”.
[4] Sections 31A (2), 34 (2) (a) and (2D)
Omit “a ward within the meaning of the Children (Care and Protection) Act 1987” wherever occurring.Insert instead “under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998”.
[5] Section 34 Guardianship of child awaiting adoption
Omit “becomes a ward within the meaning of the Children (Care and Protection) Act 1987” from section 34 (5) (d).Insert instead “comes under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998”.
[6] Section 35 General effect of adoption orders
Omit “guardianship of the child under section 90 of the Children (Care and Protection) Act 1987” from section 35 (1) (d).Insert instead “parental responsibility under the Children and Young Persons (Care and Protection) Act 1998”.
Section 58 Indemnification of agreeing parties
Omit section 58 (3A). Insert instead:(3A) This section does not apply in relation to an indemnity or an agreement to indemnify given by the Minister administering the Children and Young Persons (Care and Protection) Act 1998 to an officer of the Department of Community Services against any forfeiture that the officer may incur as a result of entering into any agreement under section 36 for the purpose of fulfilling a condition imposed on the grant of bail to a person under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
Section 18 Directions
Omit “Children (Care and Protection) Act 1987” from section 18 (1A) (a).Insert instead “Community Welfare Act 1987”.
[1] Section 33 Penalties
Omit “care within the meaning of the Children (Care and Protection) Act 1987”.Insert instead “care and protection under the Children and Young Persons (Care and Protection) Act 1998”.
[2] Section 42 Appeals
Omit “in the care or custody of the Minister administering the Children (Care and Protection) Act 1987” from section 42 (1) (b) (iii).Insert instead “under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998”.
[1] Section 3 Definitions
Omit the definition of carer. Insert instead:carer of a person means any person who has the daily care and control of a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998.
[2] Section 3, definition of “parent”
Insert instead “Children and Young Persons (Care and Protection) Act 1998”.
[3] Section 20
Omit the section. Insert instead:20 Relationship to Children and Young Persons (Care and Protection) Act 1998(1) This Division has effect in addition to and does not derogate from the Children and Young Persons (Care and Protection) Act 1998.(2) In particular, and without limiting subsection (1), nothing in this Division limits the powers conferred under section 39, 43 or 44 or Chapter 15 of the Children and Young Persons (Care and Protection) Act 1998.(3) Before taking action under section 22 in relation to a person to whom this Division applies, a police officer is to consider whether it would be more appropriate to take action under the Children and Young Persons (Care and Protection) Act 1998 to best meet the needs of the person.(4) Section 27 (Mandatory reporting) of the Children and Young Persons (Care and Protection) Act 1998 applies to a police officer while exercising functions under this Division.
[4] Section 22 Action that may be taken
Omit “Children (Care and Protection) Act 1987” from section 22 (8).Insert instead “Children and Young Persons (Care and Protection) Act 1998”.
[5] Section 24 Approved person
Omit “section 87 of the Children (Care and Protection) Act 1987” from section 24 (2).Insert instead “section 13 of the Children and Young Persons (Care and Protection) Act 1998”.
Schedule 1 Statutory provisions
Omit the matter relating to the Children (Care and Protection) Act 1987.Insert instead:Children and Young Persons (Care and Protection) Act 1998: sections 27, 29, 38, 41, 44, 46, 49, 53, 69, 70, 78, 79 (1) (a) (iii) and (1) (b), 81, 116, 118, 119, 138 (1), 149, 151, 152, 153, 154, 157, 173, 175, 176, 182, 245, 247 and 255.
Section 11 Review of situation of person in care
Omit the definition of child in care in section 11 (6).Insert instead:child in care means:(a) a child or young person for whom the Director-General of the Department of Community Services has the care responsibility under section 49 of the Children and Young Persons (Care and Protection) Act 1998, or(b) a child or young person for whom a person has the daily care and control under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998, or(c) a child or young person who is under the parental responsibility of the Minister administering the Children and Young Persons (Care and Protection) Act 1998.
Section 14 Dogs prohibited in some public places
Omit “a child care service as defined in the Children (Care and Protection) Act 1987” from section 14 (1) (f).Insert instead “a licensed children’s service within the meaning of Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998”.
Sections 12B (1) (g) and 13 (1) (h)
Omit “a residential child care centre licensed under the Children (Care and Protection) Act 1987” wherever occurring.Insert instead “a place at which out-of-home care within the meaning of the Children and Young Persons (Care and Protection) Act 1998 was provided to the person”.
[1] Section 405C Definitions relating to children’s evidence
Omit paragraph (d) of the definition of personal assault offence.Insert instead:(d) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998,
[2] Section 562C Making of complaint for court order
Omit section 562C (3) (iii). Insert instead:(iii) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998 (but only if the person is a child under the age of 16 years),
[3] Section 562H Telephone interim orders
Omit “section 25 (Child abuse) of the Children (Care and Protection) Act 1987” from section 562H (2A).Insert instead “section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998”.
Schedule 1, Table 1 Indictable offences that are to be dealt with summarily unless prosecuting authority or person charged elects otherwise
Omit item 18 of Part 4 of Table 1.Insert instead:An offence under section 105 (2) or 175 (1) of the Children and Young Persons (Care and Protection) Act 1998.
Section 15 Employment in certain occupations
Omit “child care services under Part 3 of the Children (Care and Protection) Act 1987” from section 15 (1).Insert instead “children’s services under Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998”.
Section 19 Compellability of spouses and others in certain criminal proceedings
Omit the matter relating to the Children (Care and Protection) Act 1987.Insert instead:section 222 (Endangering children in employment), 223 (Certain employers of children to be authorised), 227 (Child and young person abuse) or 228 (Neglect of children and young persons) of the Children and Young Persons (Care and Protection) Act 1998
[1] Section 3 Definitions
Omit “section 22 (Notification of child abuse) of the Children (Care and Protection) Act 1987” from paragraph (b) of the definition of investigating official in section 3 (1).Insert instead “section 27 (Mandatory reporting) of the Children and Young Persons (Care and Protection) Act 1998”.
[2] Section 3 (1), definition of “personal assault offence”
Omit paragraph (d). Insert instead:(d) an offence under section 227 (Child and young person abuse) of the Children and Young Persons (Care and Protection) Act 1998,
[1] Section 33A Person responsible
Omit “the person responsible for the child within the meaning of the Children (Care and Protection) Act 1987” from section 33A (2).Insert instead “the person having parental responsibility for the child within the meaning of the Children and Young Persons (Care and Protection) Act 1998”.
[2] Section 86 Removal of children from unlicensed residential centres
Omit “the child shall be deemed to be a child in need of care within the meaning of the Children (Care and Protection) Act 1987 and, on application made to the Children’s Court in accordance with the provisions of Part 5 of that Act, may be dealt with by the Children’s Court in any manner in which the Children’s Court may, under that Part, deal with a child who it is satisfied is in need of care” from section 86 (1).Insert instead “the child is taken to be a child in respect of whom grounds exist under section 71 of the Children and Young Persons (Care and Protection) Act 1998 for the making of a care order and, on application made to the Children’s Court in accordance with the provisions of Chapter 5 of that Act, may be dealt with by the Children’s Court in any manner in which the Children’s Court may deal with a child in accordance with that Chapter”.
Section 3 Definitions
Omit paragraph (b) of the definition of child care service in section 3 (1).Insert instead:(b) out-of-home care provided by a designated agency or an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998.
Section 132A Appeals where powers referred to in sec 84A exercised
Omit “a person responsible, within the meaning of the Children (Care and Protection) Act 1987, for the child” from section 132A (2).Insert instead “a person having parental responsibility for the child, within the meaning of the Children and Young Persons (Care and Protection) Act 1998,”.
Section 10 Land exempted from tax
Omit section 10 (1) (g) (ii). Insert instead:(ii) the provision of a children’s service the subject of a licence under the Children and Young Persons (Care and Protection) Act 1998 or a school registered under the Education Act 1990,
[1] Section 4 Definitions
Omit paragraph (d) of the definition of Designated Magistrate from section 4 (1).
[2] Section 19 Seniority of Magistrates within the same class
Insert after section 19 (4):(4A) The Senior Children’s Magistrate (who, under section 8 (4) of the Children’s Court Act 1987, is taken to be a Deputy Chief Magistrate appointed under section 15 (1) of this Act) is senior to another Deputy Chief Magistrate if the appointment of the Senior Children’s Magistrate as Senior Children’s Magistrate took effect before the appointment of the other Deputy Chief Magistrate as a Deputy Chief Magistrate.
Section 36 Meaning of “unsatisfactory professional conduct”
Omit “section 20B of the Children (Care and Protection) Act 1987”.Insert instead “section 175 of the Children and Young Persons (Care and Protection) Act 1998”.
Section 158A Record of employees under 16 years on ships
Omit “Part 4 to the Children (Care and Protection) Act 1987” from the note to section 158A.Insert instead “Chapter 13 of the Children and Young Persons (Care and Protection) Act 1998”.
Section 25A Definitions (as inserted by the Ombudsman Amendment (Child Protection and Community Services) Act 1998)
Omit paragraph (b) of the definition of designated non-government agency in section 25A (1).Insert instead:(b) a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998 (not being a department referred to in paragraph (a) of the definition of designated government agency in this subsection) or a licensed children’s service within the meaning of that Act,
Section 42A Definitions
Omit paragraph (a) of the definition of child care facility.Insert instead:(a) a children’s service to which Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998 applies, or
Section 10 Definitions
Omit the matter relating to the Children (Care and Protection) Act 1987 from the definition of search warrant.Insert instead:section 233 of the Children and Young Persons (Care and Protection) Act 1998,
Section 68 Interventions not to be disclosed as criminal history
Omit “a provider of child care services under Part 3 of the Children (Care and Protection) Act 1987” from section 68 (2) (a).Insert instead “a provider of a children’s service under Chapter 12 of the Children and Young Persons (Care and Protection) Act 1998”.
Section 27 Removal of certain handicapped persons
Omit “a child in need of care within the meaning of the Children (Care and Protection) Act 1987 and may be dealt with in accordance with Part 5 of that Act” from section 27 (b).Insert instead “a child in respect of whom grounds exist under section 71 of the Children and Young Persons (Care and Protection) Act 1998 for the making of a care order and may be dealt with in accordance with Chapter 5 of that Act”.
sch 2: Am 1999 No 94, Sch 4.67.