Part 13Approved carers, licensed foster care agencies and licensed children's residential facilities

Part 13—Approved carers, licensed foster care agencies and licensed children's residential facilities Division 1—Approved carers 149—Chief Executive may establish categories of approved carers (1) The Chief Executive may establish such categories of approved carers as the Chief Executive from time to time considers appropriate. (2) Subject to this Act, the Chief Executive may determine the circumstances in which children and young people are to be placed with a particular category of approved carer. (3) A determination under this section must be consistent with any requirements prescribed by the regulations. 150—Out of home care to be provided by approved carers (1) Subject to this Act, a person must not provide out of home care unless the person is an approved carer. out of home care means— (a) care provided to a child or young person where— (i) the child or young person is in the custody, or under the guardianship, of the Chief Executive; and (ii) the care is provided by a person with whom the child or young person is placed under section 135; and (iii) the care is provided on a residential basis apart from the child or young person's parents; and (iv) the provider of the care receives, or may receive, payment, or financial or other assistance, in relation to the care provided; or (b) any other care of a kind prescribed by the regulations, but does not include— (c) care provided to children and young people at a licensed children's residential facility; or (d) care provided to children and young people at a State residential care facility; or (e) care of a kind prescribed by the regulations to be excluded from the ambit of this definition. 151—Approval of carers (1) The Chief Executive may, on an application under this section and by notice in writing, approve a person as an approved carer for the purposes of this Act. (2) An application for approval must— (b) be accompanied by any information or documents as may be required by the Chief Executive. (3) The Chief Executive may refuse to accept an application for approval under this section for any reason the Chief Executive thinks fit. (4) In determining an application for approval, the Chief Executive must have regard to— (a) the operation of the Child Safety (Prohibited Persons) Act 2016; and (b) whether the person is willing and able to care for each child or young person placed with the person in a manner consistent with Part 2 and this Act generally; and (c) if relevant, whether the person will, where appropriate— (i) provide opportunities for the child or young person to maintain or recover their identity as a member of their own family and will allow the child or young person reasonable access to their own family; and (ii) assist the child or young person to return to their own family; and (d) any other matter prescribed by the regulations, however, the Chief Executive may refuse to approve a person for any reason the Chief Executive thinks fit. (5) The Chief Executive must impose on each approval— (a) a condition setting out the category of care that may be provided by the approved carer; and (b) a condition setting out the maximum number of children and young people that may be placed with the approved carer at any time, and may impose such other conditions as the Chief Executive thinks appropriate. (6) The Chief Executive may, by notice in writing, vary, substitute or revoke a condition of an approval. (7) An approved carer must not, without reasonable excuse, refuse or fail to comply with a condition of an approval. 152—Ongoing reviews of approved carers The Chief Executive must, in relation to each approved carer, ensure that— (a) regular assessments are undertaken of the provision of care by the approved carer under this Act; and (b) relevant courses of training are made available to the approved carer; and (c) ongoing support and guidance are provided to the approved carer; and (d) proper assessments are made of any requirement of the approved carer for financial or other assistance. 153—Cancellation of approval (1) The Chief Executive must, by notice in writing, cancel the approval of an approved carer if the Chief Executive reasonably suspects that the person is a prohibited person under the Child Safety (Prohibited Persons) Act 2016. (2) The Chief Executive may, by notice in writing, cancel the approval of an approved carer if the Chief Executive reasonably suspects that— (a) a child or young person who is placed with the approved carer is not being adequately cared for; or (b) the approved carer has contravened a provision of this Act; or (c) the approved carer has refused or failed to comply with a condition of their approval; or (d) a working with children check has not been conducted in relation to the person within the preceding 5 years; or (e) it is otherwise appropriate that the approval be cancelled. (3) The Chief Executive must give an approved carer at least 28 days notice in writing of the Chief Executive's intention to cancel the person's approval under subsection (2). 154—Certain information to be provided to Chief Executive (1) An approved carer must, as soon as is reasonably practicable, advise the Chief Executive if any of the following occurs: (a) there is a change in the approved carer's address; (b) any other person comes to reside with the approved carer; (c) the approved carer, or any person residing with the approved carer, is charged with an offence punishable by imprisonment; (d) the approved carer, or any person residing with the approved carer, becomes a prohibited person under the Child Safety (Prohibited Persons) Act 2016. (2) Nothing in this section limits any other power of the Chief Executive or a child protection officer to require a person to produce information. 155—Delegation of certain powers to approved carers (1) The Chief Executive may, in relation to a child or young person who is under the guardianship of the Chief Executive, delegate such of the Chief Executive's powers as the guardian of the child or young person as the Chief Executive thinks fit to an approved carer with whom the child or young person is placed. (d) may be varied or revoked at will. (3) Nothing in this section limits any other power the Chief Executive may have to delegate a function under this Act. Division 2—Licensed foster care agencies 156—Interpretation For the purposes of this Division, a reference to the business of a foster care agency will be taken to be a reference to the placement of children and young people with approved carers (whether on a commercial basis or otherwise). 157—Foster care agencies to be licensed A person must not carry on the business of a foster care agency unless the person is the holder of a licence under this Division. (b) in the case of an individual—imprisonment for 2 years. 158—Licence to carry on business as foster care agency (1) The Chief Executive may, on an application under this section and by notice in writing, grant a licence to a person to carry on the business of a foster care agency. (2) An application for a licence must— (b) be accompanied by any information or documents as may be required by the Chief Executive. (3) The Chief Executive must not grant a licence to a person unless satisfied that— (a) the person is a fit and proper person to hold a licence (including by having regard to the qualifications and experience in the field of foster care, or any other related field, of the persons who will be carrying on or managing the business, and of any employees of the business); and (b) the person (or, in the case of a body corporate, each director of the body corporate) is not a prohibited person under the Child Safety (Prohibited Persons) Act 2016; and (c) a working with children check has been conducted in relation to the person (or, in the case of a body corporate, in relation to each director of the body corporate) within the preceding 5 years; and (d) the system of management within the agency is appropriate; and (e) the procedures proposed by the agency for the selection, approval, training and support of approved carers are appropriate; and (f) the procedures proposed by the agency for the placement and supervision of children and young people are appropriate, and may refuse to grant a licence for any reason the Chief Executive thinks fit. (4) A licence may be conditional or unconditional. (5) The Chief Executive may, by notice in writing, vary, substitute or revoke a condition of a licence. (6) The holder of a licence under this Division must not refuse or fail to comply with a condition of the licence. (7) Subject to this Act, a licence remains in force for the period specified in the licence (not exceeding 3 years) and may be renewed in accordance with the regulations. 159—Cancellation of licence (1) The Chief Executive may, by notice in writing, cancel a licence under this Division if the Chief Executive reasonably suspects that— (a) a child or young person placed with an approved carer pursuant to the licence is not being adequately cared for; or (b) the provisions of this Act are not being complied with by the licensed foster care agency to which the licence relates; or (c) the holder of the licence no longer meets a requirement for granting the licence under section 158(3); or (d) the holder of the licence has refused or failed to comply with a condition of the licence; or (e) the holder of the licence (or, if the holder of the licence is a body corporate, a director of the body corporate) is a prohibited person under the Child Safety (Prohibited Persons) Act 2016; or (f) a working with children check has not been conducted in relation to the holder of the licence (or, if the holder of the licence is a body corporate, in relation to a director of the body corporate) within the preceding 5 years; or (g) it is otherwise appropriate that the licence be cancelled. (2) The Chief Executive must (except in relation to a cancellation for a reason referred to in subsection (1)(d) or (e)) give the holder of a licence under this Division at least 28 days notice in writing of the Chief Executive's intention to cancel the licence. 160—Record keeping (1) The holder of a licence under this Division must make such records as may be required by the regulations. (2) The holder of a licence under this Division must keep the records referred to in subsection (1) in accordance with any requirements set out in the regulations. 161—Ongoing reviews of approved carers by agency The holder of a licence under this Division must, in relation to each approved carer with whom the foster care agency places children and young people pursuant to the licence— (a) undertake regular assessments of the provision of care by the approved carer under this Act; and (b) assess any requirement of the approved carer for financial or other assistance. Division 3—Licensed children's residential facilities 162—Interpretation children's residential facility means— (a) a place where 3 or more children or young people are, for monetary or other consideration, cared for on a residential basis apart from their parents; or (b) any other place in which children or young people are cared for on a residential basis prescribed by the regulations, but does not include— (c) the residence of an approved carer with whom a child or young person is placed under this Act; or (d) a State residential care facility; or (e) a training centre established under the Youth Justice Administration Act 2016; or (f) residential premises that are attached to a school or a tertiary education institution, or that are used solely for the purposes of caring for tertiary students; or (g) any other facility or place, or facility or place of a class, prescribed by the regulations not to be included in the ambit of this definition. 163—Children's residential facilities to be licensed A person must not operate a children's residential facility unless the person is the holder of a licence under this Division in respect of the facility. (b) in the case of an individual—imprisonment for 2 years. 164—Licence to operate children's residential facility (1) The Chief Executive may, on an application under this section and by notice in writing, grant a licence to a person to operate a children's residential facility. (2) An application for a licence must— (b) be accompanied by such information or documents as may be reasonably required by the Chief Executive. (3) The Chief Executive must not grant a licence to a person unless satisfied that— (a) the person is a fit and proper person to hold a licence (including by having regard to the suitability, qualifications and experience of the persons who will be operating the children's residential facility and of any persons who will be employed in the facility); and (b) the person (or, in the case of a body corporate, each director of the body corporate) is not a prohibited person under the Child Safety (Prohibited Persons) Act 2016; and (c) a working with children check has been conducted in relation to the person (or, in the case of a body corporate, in relation to each director of the body corporate) within the preceding 5 years; and (d) the premises proposed to be used as a children's residential facility are suitable for that purpose; and (e) the system of management within the children's residential facility is appropriate, and may refuse to grant a licence for any reason the Chief Executive thinks fit. (4) The Chief Executive must impose on each licence a condition setting out the maximum number (not exceeding the prescribed number) of children and young people that may reside in the licensed children's residential facility at any time (and may impose such other conditions as the Chief Executive thinks appropriate). (5) The Chief Executive may, by notice in writing, vary, substitute or revoke a condition of a licence. (6) The holder of a licence under this Division must not refuse or fail to comply with a condition of the licence. (7) Subject to this Act, a licence remains in force for the period specified in the licence (not exceeding 3 years) and may be renewed in accordance with the regulations. prescribed number means— (a) if the regulations prescribe a number for the purposes of this definition—that number; or (b) if the regulations do not prescribe a number for the purposes of this definition—4. 165—Cancellation of licence (1) The Chief Executive may, by notice in writing, cancel a licence under this Division if the Chief Executive reasonably suspects that— (a) a child or young person in the licensed children's residential facility is not being adequately cared for; or (b) the provisions of this Act are not being complied with in respect of the licensed children's residential facility to which the licence relates; or (c) the holder of the licence no longer meets a requirement for granting the licence under section 164(3); or (d) the holder of the licence has refused or failed to comply with a condition of the licence; or (e) the holder of the licence (or, if the holder of the licence is a body corporate, a director of the body corporate) is a prohibited person under the Child Safety (Prohibited Persons) Act 2016; or (f) a working with children check has not been conducted in relation to the holder of the licence (or, if the holder of the licence is a body corporate, in relation to a director of the body corporate) within the preceding 5 years; or (g) it is otherwise appropriate that the licence be cancelled. (2) The Chief Executive must (except in relation to a cancellation for a reason referred to in subsection (1)(d) or (e)) give the holder of a licence at least 28 days notice in writing of the Chief Executive's intention to cancel the licence. 166—Record keeping (1) The holder of a licence under this Division must make such records as may be required by the regulations. (2) The holder of a licence under this Division must keep the records referred to in subsection (1) in accordance with any requirements set out in the regulations. Division 4—State residential care facilities 167—Minister may establish State residential care facilities (1) The Minister may, in accordance with any requirements set out in the regulations, establish such residential care facilities as the Minister thinks necessary or desirable for children or young people who are in need of care and protection from harm. (2) A residential care facility established under this section will be under the control of the Minister, and the Chief Executive must ensure that proper standards of administration are observed in the management of every such facility. 168—Persons not to be employed in certain residential facilities unless they have been assessed (1) A person must not be employed in a licensed children's residential facility or a State residential care facility unless the person has undergone a psychological or psychometric assessment of a kind determined by the Chief Executive for the purposes of this section. (2) However, subsection (1) does not apply to the employment of a person or a person of a class, or the employment of a person in circumstances, prescribed by the regulations. (3) A person who is employed in a licensed children's residential facility or a State residential care facility in contravention of subsection (1) is guilty of an offence. (a) for a first or second offence—$20 000; (b) for a third or subsequent offence—$50 000 or imprisonment for 1 year. (4) A person who employs, or continues to employ, a person in a licensed children's residential facility or a State residential care facility in contravention of subsection (1) is guilty of an offence. (b) in the case of an individual—$50 000 or imprisonment for 1 year. (5) For the purposes of this section, a reference to a person being employed will be taken to include a reference to a person who— (a) is a self‑employed person; or (b) carries out work under a contract for services; or (c) carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or (d) undertakes practical training as part of an educational or vocational course; or (e) carries out work as a volunteer; or (f) performs unpaid community work in accordance with an order of a court, and a reference to employ is to be construed accordingly. 169—Chief Executive to hear complaints regarding certain residential and other facilities (1) A child or young person being cared for in a prescribed facility, or a parent or guardian of such a child or young person, may make a complaint to the Chief Executive with respect to the care that the child or young person is receiving in the facility. (2) A complaint under subsection (1) must be made in a manner and form determined by the Chief Executive. (3) The Chief Executive must cause a complaint made under this section to be investigated in accordance with the regulations. (4) In this section— prescribed facility means— (a) a licensed children's residential facility; or (b) a State residential care facility; or (c) any other facility, or facility of a class, prescribed by the regulations.