Part 1 Preliminary
1 Name of Regulation
This Regulation is the Children and Young Persons (Savings and Transitional) Regulation 2000.
2 Commencement
This Regulation commences on 18 December 2000.
3 Definitions
In this Regulation:the new Act means the Children and Young Persons (Care and Protection) Act 1998.the old Act means the Children (Care and Protection) Act 1987.
4 Notes
The explanatory note and table of contents do not form part of this Regulation.
Part 2 General provisions
5 General savings
Except as otherwise provided by this Regulation, nothing in this Regulation affects the application of section 30 of the Interpretation Act 1987.
6 Aboriginals and Torres Strait Islanders
If any thing was commenced to be done or omitted under a provision of the old Act but not completed before the repeal of the provision in relation to a child or young person who was not an Aboriginal or Torres Strait Islander under the old Act but who is an Aboriginal or Torres Strait Islander under the new Act, the thing is to be completed:(a) under the old Act (except as provided by paragraph (b)), as if the child or young person is an Aboriginal or Torres Strait Islander, and(b) in accordance with the Aboriginal and Torres Strait Islander principles in Part 2 of Chapter 2 of the new Act.
7 Temporary care arrangements
(1) A temporary care arrangement in force under section 14 of the old Act immediately before the repeal of that section is taken to be a temporary care arrangement under section 151 of the new Act and continues for the remainder of the period for which the arrangement was made or renewed.(2) An application for the review of a temporary care arrangement under section 14 (9) of the old Act that has not been determined before the repeal of that provision is taken to be an application for the review of a temporary care arrangement under section 152 (6) of the new Act.(3) A child or young person who, immediately before the repeal of section 16 of the old Act, was in the custody of the Director-General pursuant to that section is taken to be a child or young person of whom the Director-General has the care responsibility pursuant to section 154 of the new Act.
8 Custody
A person who had the custody of a child or young person in accordance with an order made under section 72 (1) (c) (ii) of the old Act immediately before the repeal of the provision is taken to have those aspects of parental responsibility that are referred to in:(a) section 79 (2) (a) of the new Act, and(b) section 157 of the new Act.
9 Wards
A child or young person who was a ward or a protected person under a provision of the old Act immediately before the repeal of the provision is taken to be a child or young person under the parental responsibility of the Minister.cl 9: Am 2003 (468), Sch 1 [1].
10 Notification of child abuse
(1) Despite its repeal, section 22 of the old Act continues to apply so as to enable a notification to be made to the Director-General that a child or young person was abused before the repeal of that section.(2) A notification under section 22 of the old Act that has not been dealt with before the repeal of that section, or that is made as referred to in subclause (1), is taken to be:(a) except as provided by paragraph (b), a report under section 24 of the new Act, orand is to be treated in all respects accordingly under the new Act.(b) if the report has been made by a person to whom section 27 (1) of the new Act applies, a report under section 27 of the new Act,(3) An investigation under section 22 (7) of the old Act that has not been completed before the repeal of that subsection is taken to be an investigation under section 30 of the new Act, and is to be treated in all respects accordingly under the new Act.(4) Section 29 of the new Act applies to a notification under section 22 of the old Act that has been dealt with before the repeal of section 22 of the old Act.
11 Medical examination of abused children
A notice served under section 23 (1) of the old Act, a requirement of which has not been complied with before the repeal of that provision, is taken, but only for the purpose of enabling the medical examination of the child or young person to whom the notice relates, to be a notice served under section 173 (1) of the new Act.
12 Care responsibility for children and young persons
If a person had the care of a child or young person under a provision of the old Act immediately before its repeal, the person is taken to have the care and protection of the child or young person under, and for the purposes of, the new Act.
13 Provision of care by the Director-General
A child or young person to whom section 12A, 62 (1) or 62A (1) of the old Act applied immediately before its repeal is taken to be a child or young person under the care responsibility of the Director-General for the purposes of the new Act.
14 Ordinary medical and dental treatment
Treatment that could have been, but was not, given to a child under section 20 of the old Act pursuant to a consent granted in accordance with that section at any time before its repeal may be given to the child as if that section had not been repealed.
15 Special medical treatment
Treatment that could have been, but was not, given to a child under section 20B of the old Act pursuant to a consent granted in accordance with that section by the Supreme Court at any time before the repeal of that section may be given to the child as if that section had not been repealed.
Part 3 Children’s Court proceedings
16 Existing proceedings
If proceedings under the old Act in the Children’s Court or the District Court have been commenced but not completed before the repeal of Division 4 of Part 5 of the old Act, the proceedings are to be continued and completed under the old Act in all respects as if the old Act (or any relevant provision of the old Act) had not been repealed.
17 Orders, requirements and directions of the Children’s Court, and undertakings, under the old Act
An order, requirement or direction of the Children’s Court under a provision of the old Act, or an undertaking given in accordance with a provision of the old Act, that was in force immediately before the repeal of the provision is not affected by the repeal of the provision but continues in force according to its terms, except to such extent (if any) as may be provided by this Regulation.
18 Right of appeal to District Court
Section 81 of the old Act continues to apply to an order of the Children’s Court:(a) made before the repeal of that section, oras if section 81 of the old Act had not been repealed.(b) made as referred to in clause 17,
19 Orders for supervision under sec 72 (1) (c) (i) of the old Act
An order in force under section 72 (1) (c) (i) of the old Act immediately before the repeal of that provision is taken:(a) to be an order in force under section 76 of the new Act, and(b) to be in force for:(i) the unexpired balance of the period (if any) for which the order was expressed to be in force, orwhichever is the lesser.(ii) 12 months from the commencement of section 76 of the new Act,
20 Enforcement of undertakings
A failure or breach in relation to any matter to which a provision of section 79 or 84 of the old Act applied immediately before the repeal of the provision may be dealt with under section 73 (5) of the new Act, whether the failure or breach occurred before or after the repeal of the provision.
21 Rescission and variation of orders
An order of the Children’s Court made under a provision of the old Act that was in force immediately before the repeal of the provision may be rescinded or varied under section 90 of the new Act as if it were a care order.
22 Application of old Act to orders under new Act
(1) For the purposes of the application of the provisions of the old Act that are not repealed on or before the commencement of this Regulation to orders that are made under the new Act after that commencement, an order under a provision of the new Act specified in Column 1 of the following Table is taken to be an order under the provision of the old Act (if any) specified opposite in Column 2 of the Table.
Part 3A Out-of-home care
Division 1 General
pt 3A, div 1: Ins 2003 (468), Sch 1 [2].
22A Interim accreditation as designated agency
(1) This clause applies to the following bodies or organisations that, immediately before 15 July 2003, were providing out-of-home care to a child or young person, or arranging for the provision of such care:(a) a government department,(b) a residential child care centre licensed under the old Act,(c) a residential child care centre referred to in clause 34 of the Children (Care and Protection) Regulation 1996 (being a centre funded through the Department’s Substitute Care Program),(d) an authorised private fostering agency authorised under the old Act,(e) a private fostering agency funded through the Department’s Substitute Care Program,(f) any other body or organisation funded through the Department or the Department of Ageing, Disability and Home Care to provide the out-of-home care.(2) A body or organisation to which this clause applies is taken to be accredited as a designated agency under the new Act during the transition period applicable to the body or organisation.(3) The transition period applicable to a body or organisation is the period that begins on 15 July 2003 and that ends:(a) when the body or organisation is accredited as a designated agency otherwise than under this clause, orwhichever is the sooner.(b) on 1 July 2005, if the body or organisation fails to make an application for accreditation as a designated agency under Division 4 of Part 6 of the Children and Young Persons (Care and Protection) Regulation 2000 or under clause 22C of this Regulation,pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22B Conditions on interim accreditation
(1) In this clause:designated agency means a body or organisation that is taken to be accredited as a designated agency under clause 22A during the transition period applicable to the body or organisation in accordance with that clause.funded designated agency means a designated agency that is funded through the Department or the Department of Ageing, Disability and Home Care to provide out-of-home care, or to arrange for the provision of such care.non-funded designated agency means a designated agency other than a funded designated agency.(2) A funded designated agency must continue to comply with any conditions imposed by the Department or the Department of Ageing, Disability and Home Care on the funding to provide out-of-home care, or to arrange the provision of out-of-home care, during the transitional period applicable under clause 22A, to the funded designated agency.(3) A non-funded designated agency that, immediately before 15 July 2003, was a licensed residential child care centre or an authorised private fostering agency under the old Act must continue to comply with:(a) any conditions of the licence or authority under clause 6 or 7 of Schedule 1 to the old Act in relation to the agency, andin force immediately before 15 July 2003 as if those conditions and requirements were still in force.(b) any requirements imposed by Parts 5 and 6 and Schedules 2 and 3 of the Children (Care and Protection) Regulation 1996 in relation to the agency,(4) A non-funded designated agency (other than one to which subclause (3) applies) must comply with:(a) the requirements and standards specified in one of the following documents:(i) the document titled NSW Standards for Substitute Care Services published by the Department in September 1998,(ii) the document titled SAAP Standards (Supported Accommodation Assistance Program Standards) published by the Department in September 1998,(iii) the document titled Standards in Action: Practice Requirements and Guidelines for Services Funded Under the Disability Services Act published by the Ageing and Disability Department in 1998, or(b) the requirements and standards approved by the Minister on the recommendation of the Children’s Guardian.(5) A designated agency that fails to comply with this clause is taken to have failed to comply with a condition of accreditation as a designated agency under the new Act.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22C Transitional form of accreditation
(1) The object of this clause is to enable a designated agency within the meaning of clause 22B to achieve the standard that would entitle the designated agency to be accredited as a designated agency under Division 4 of Part 6 of the Children and Young Persons (Care and Protection) Regulation 2000 within a maximum period of 10 years from 15 July 2003 by progressively achieving minimum standards set for the designated agency by the Children’s Guardian in accordance with a timetable set for the designated agency by the Children’s Guardian.(2) A designated agency within the meaning of clause 22B may, at any time before 15 July 2005, apply in writing to the Children’s Guardian to be accredited as a designated agency in accordance with this clause.(3) On receipt of an application under this clause from a designated agency, the Children’s Guardian, in consultation with the designated agency, is to determine a timetable, ending not later than 14 July 2013, for the progression of the designated agency to the standards that would entitle the designated agency to be accredited under Division 4 of Part 6 of the Children and Young Persons (Care and Protection) Regulation 2000.(4) A designated agency that applies to be accredited under this clause must meet the minimum standards determined by Minister on the recommendation from time to time of the Children’s Guardian by the dates determined with the consent of the designated agency by the Children’s Guardian.(5) The Children’s Guardian is to keep the dates determined by it under review and may change any date from time to time by notice to the designated agency concerned. The Children’s Guardian cannot determine an earlier date without the consent of the designated agency concerned.(6) If a designated agency, not being a government department, fails to achieve the standards determined by the Children’s Guardian by the date determined by the Children’s Guardian for the achievement of those standards, the Children’s Guardian may require the designated agency, by notice in writing, to show cause within a period of not less than 28 days specified by the Children’s Guardian in the notice, why the designated agency’s application for accreditation should not be terminated.(7) If the designated agency is a government department, the Children’s Guardian must report a failure of the designated agency to meet the standards determined as referred to in subclause (6) to the Minister.(8) If the designated agency, not being a government department, fails to show cause as required by the Children’s Guardian, the Children’s Guardian may terminate the designated agency’s application for accreditation.(9) The Children’s Guardian may terminate a designated agency’s application for accreditation under this clause with the consent of the designated agency.(10) If a designated agency’s application for accreditation is terminated under this clause otherwise than with the consent of the designated agency:(a) the termination of the application is taken to be a decision not to accredit the designated agency, and(b) no further application for accreditation may be made by the designated agency under this clause.Note—Under section 245 (1) (b) of the Act, a decision of the relevant decision-maker to accredit or not to accredit a department or organisation as a designated agency is reviewable by the Administrative Decisions Tribunal.(11) A body or organisation that applied to the Children’s Guardian for voluntary accreditation between 1 July 2002 and 14 July 2003 by completing an “Application for Accreditation” form issued by the Children’s Guardian is taken to have applied for accreditation as a designated agency under this clause.(12) This clause ceases to have effect on 1 July 2013.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22D Deemed authorisation as authorised carer authorised by designated agency
(1) This clause applies to the following persons:(a) a person in whose care a child or young person was placed by an authorised private fostering agency under the old Act and who, immediately before the commencement of this clause, had the care of that child or young person,(b) a person in whose care a child or young person was placed by a private fostering agency funded through the Department’s Substitute Care Program under the old Act and who, immediately before the commencement of this clause, had the care of that child or young person,(c) a person who, immediately before the commencement of this clause, cared for a child or young person at a licensed residential child care centre under the old Act,(d) a person in whose care a child or young person was placed by, or with the written approval of, the Minister or the Director-General under the old Act and who, immediately before the commencement, had the care of that child or young person,(e) a person in whose custody a ward or protected person was placed by the Minister under section 91 (1) (d) or (f) of the old Act and who, immediately before the commencement of this clause, had the custody of that ward or protected person.(2) A person to whom this clause applies is taken to be an authorised carer authorised by a designated agency under section 137 (1) (b) of the new Act.(3) The designated agency that is taken to have authorised the person as an authorised carer is:(a) in the case of a person referred to in subclause (1) (a) or (b)—the private fostering agency who placed the child or young person in the care of the person, or(b) in the case of a person referred to in subclause (1) (c)—the licensed residential child care centre, or(c) in the case of a person referred to in subclause (1) (d) or (e)—the Department.(4) In this clause, ward and protected person have the same meanings as in the old Act.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22E Interim authorisation as authorised carer for holder of fostering authority
(1) This clause applies to a person who, immediately before the commencement of this clause, held a fostering authority under section 43 of the old Act.(2) A person to whom this clause applies is taken to be an authorised carer authorised by a designated agency under section 137 (1) (b) of the new Act.(3) However, if the fostering authority held by the person specified the child or young person to whom it applied, the person is taken to be an authorised carer only in relation to that child or young person, and the person ceases to be an authorised carer in relation to that child or young person:(a) when the child or young person leaves the care of that person, or(b) 2 years after the commencement of this clause, orwhichever is the sooner.(c) when the child or young person reaches 18 years of age,(4) The Department is taken to be the designated agency that authorised the person as an authorised carer.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22F Child or young person in out-of-home care under order of Children’s Court
A child or young person who, immediately before the commencement of this clause, was in the care of a person (other than a person to whom he or she is related) under an order of the Children’s Court is taken to be a child or young person in out-of-home care.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22G Review of placements effected by order of Children’s Court
(1) This clause applies to a child or young person who, immediately before the commencement of this clause, was in out-of-home care under an order of the Children’s Court.(2) A review under section 150 of the new Act of the placement of the child or young person is to be conducted before the anniversary of the making of the final order placing the child or young person in out-of-home care and thereafter within every period of 12 months after that anniversary.(3) Nothing in this clause prevents a review of the placement of the child or young person under section 150 (2) (c) or (d).pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22H Financial assistance
(1) A person receiving an allowance by the Director-General under section 19 (2) of the old Act immediately before the commencement of this clause with respect to a child or young person is taken to have been granted financial assistance with respect to that child or young person under section 161 of the new Act.(2) A person receiving a payment from the Minister under section 91 (1) (b) or (2) of the old Act immediately before the commencement of this clause with respect to a child or young person is taken to have been granted financial assistance with respect to that child or young person under section 161 of the new Act.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
Division 2 Temporary retention of certain fostering provisions
pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
22I Continuation of certain provisions of Children (Care and Protection) Regulation 1996
On and from 1 September 2003 until the commencement of section 170 of the new Act, the provisions of clauses 5, 62–70 and 76–79 of the Children (Care and Protection) Regulation 1996 are taken not to have been repealed but to have continued in force.pt 3A, div 2 (cll 22A–22I): Ins 2003 (468), Sch 1 [2].
Part 4 Miscellaneous
23 Evidence of young children
Section 260 of the new Act extends to the evidence of a medical practitioner given before the commencement of that section.
24 Power of search and removal of abused children
A search warrant issued and in force under section 24 of the old Act immediately before the repeal of that section is taken to be a warrant issued and in force under section 233 of the new Act.
25 Reciprocity between States and Territories
Any act, matter or thing that, immediately before the repeal of section 95 of the old Act, had effect under that section is taken to have effect under section 255 of the new Act.cl 25: Ins 2001 (526), Sch 1.