Part 7Protecting children and young people at risk of harm or significant harm

Part 7—Protecting children and young people at risk of harm or significant harm Division 1—Reporting suspicion that child or young person at risk of significant harm 75—Application of Division The requirements under this Division are in addition to— (a) the duty of every person to safeguard and promote the outcomes set out in section 9(2), and in particular the outcome that children and young people be kept safe from harm; and (b) any duty a person may have to promote and ensure the safety and wellbeing of children and young people. 76—Certain persons must report suspicion that child or young person may be at risk of significant harm (1) A prescribed person must, if— (a) the person suspects on reasonable grounds that a child or young person is, or may be, at risk of significant harm; and (b) that suspicion was formed in the course of the person's employment, report that suspicion, in accordance with subsection (4), as soon as is reasonably practicable after forming the suspicion. (2) However, a prescribed person need not report a suspicion under subsection (1)— (a) if they have previously reported their suspicion in accordance with that subsection or a repealed Act and the circumstances to which the suspicion relates have not changed to a substantial extent; or (b) if they believe on reasonable grounds that another person has reported the matter in accordance with that subsection or a repealed Act; or (c) if their suspicion was due solely to having been informed of the circumstances that gave rise to the suspicion by a police officer or child protection officer acting in the course of their official duties; or (d) if they believe on reasonable grounds that the Department is already aware of the information that forms the basis of the person's suspicion; or (e) in any other circumstances prescribed by the regulations. (3) A prescribed person may (but need not), if— (a) the person suspects on reasonable grounds that an unborn child is at risk of harm in respect of their physical or psychological development (whether due to an act or omission of a parent or otherwise); and (b) that suspicion was formed in the course of the person's employment, report that suspicion in accordance with subsection (4). (4) A person reports a suspicion under this section by doing 1 or more of the following: (a) making a telephone notification to a telephone number determined by the Minister for the purposes of this subsection; This telephone line is currently known as the Child Abuse Report Line or CARL. (b) making an electronic notification on an electronic reporting system determined by the Minister for the purposes of this subsection; (c) reporting their suspicion to a person of a class, or a person occupying a position of a class, specified by the Minister by notice in the Gazette; (d) reporting their suspicion in any other manner prescribed by the regulations, and, in each case, providing— (e) — (i) in the case of an unborn child—the name and address (if known) of a parent of the unborn child; or (ii) in any other case—the name and address (if known) of the child or young person; and (f) information setting out the grounds for the person's suspicion; and (g) such other information as the person may wish to provide in relation to their suspicion. (5) Nothing in this section prevents a person from— (a) making a report in accordance with subsection (4) if the person is concerned about the safety or wellbeing of a child or young person; or (b) reporting or referring a matter to any other appropriate person or body under any other Act (in addition to making a report under this section). (6) To avoid doubt, compliance with the requirements of this section does not necessarily exhaust a duty of care that may be owed to a child or young person by a prescribed person. (7) A person who makes a report under this section will not be liable for any civil or criminal action by reason of the making of the report (including, to avoid doubt, an action for defamation). (8) This section does not limit or derogate from any other provision of this Act or any other Act. (9) 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, and a reference to something occurring in the course of the person's employment is to be construed accordingly. (10) In this section— allied health professional means— (a) an art or creative therapist; or (b) an audiologist; or (c) a Bowen therapist; or (d) a counsellor; or (e) a dietitian; or (f) an exercise physiologist; or (g) a genetic counsellor; or (h) a music therapist; or (i) an orthoptist; or (j) a prosthetist/orthotist; or (k) a rehabilitation counsellor; or (l) a social worker; or (m) a sonographer; or (n) a speech pathologist; prescribed person means— (a) a registered health practitioner (within the meaning of the Health Practitioner Regulation National Law); or (b) an allied health professional; or (c) a police officer; or (d) a community corrections officer under the Correctional Services Act 1982; or (e) a minister of religion; or (f) an employee of, or a volunteer in, an organisation formed for religious or spiritual purposes; or (g) a teacher employed as such in a school (within the meaning of the Education and Early Childhood Services (Registration and Standards) Act 2011) or a preschool or kindergarten; or (h) an employee of, or a volunteer in, an organisation that provides health, welfare, education, sporting, recreational, child care or residential services wholly or partly for children or young people, being a person who— (i) provides such services directly to children or young people; or (ii) holds a management position in the organisation the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children or young people; or (i) any other person, or person of a class, prescribed by the regulations. Division 2—Responding to reports indicating children and young people at risk of harm 77—Assessment of reports indicating child or young person at risk of harm (1) Subject to subsection (2), the Chief Executive must cause— (a) each report made under section 76; and (b) any other report (including, to avoid doubt, a quality of care report) made to the Department that a child or young person may be at risk of harm (however described and whether or not received under this Act), to be assessed in accordance with any requirements set out in the regulations. (2) If more than 1 report is made (whether under section 76 or otherwise, and whether or not by same person) in relation to the same circumstances, the Chief Executive may treat the reports as a single report (and, for the purposes of this Act, a reference to a report will be taken to include a reference to all such reports). (3) The Chief Executive may, in the course of an assessment under this section, make use of or rely on such systems of information gathering, collating or reporting as the Chief Executive thinks fit (whether or not the system is operated or provided by a State authority). 78—Chief Executive must take certain actions following assessment if child or young person at risk of harm (1) Without limiting any other action that may be taken by the Chief Executive, if on completion of an assessment under section 77 the Chief Executive suspects that a child or young person is at risk of harm, the Chief Executive— (a) if the report is a quality of care report—must cause an action to be taken in accordance with the Quality of Care Report Guidelines; or (b) in any other case—must cause 1 or more of the following actions to be taken: (i) an assessment of the circumstances of the child or young person under section 79; (ii) if the Chief Executive is satisfied that an assessment under section 79 is unnecessary, having regard to such of the circumstances of the child or young person as may already be known to the Chief Executive—a response that, in the opinion of the Chief Executive, more appropriately addresses the risk to the child or young person; (iii) a referral of the matter to an appropriate State authority under section 80; (iv) an application to the Minister to give a direction under section 21 in relation to the matter; (v) if the Chief Executive is satisfied that— (A) the matter has previously been dealt with under this Act or a repealed Act and there is no reason to reexamine the matter; or (B) the nature of the harm or potential harm to which the matter relates is such that it would not be expected to have a significant adverse impact on the child or young person's safety or wellbeing; or (C) it is not reasonably practicable for further action to be taken in respect of the matter; or (D) the matter is trivial, vexatious or frivolous, the Chief Executive may decline to take further action. (2) The Chief Executive must, in accordance with any requirements set out in the regulations— (a) cause a record of each action taken under this section and the reasons for the action to be kept in relation to each report made to the Department; and (b) cause statistical information relating to action taken under this section to be included in the annual report under section 28. 79—Chief Executive may assess circumstances of child or young person (1) Subject to this Act, the Chief Executive may cause an assessment of the circumstances of a child or young person to be carried out— (a) if a report is made under section 76 and the Chief Executive suspects on reasonable grounds that the child or young person may be at risk of harm; or (b) if the Court makes an order under section 115; or (c) in any other circumstances that the Chief Executive thinks appropriate. (2) The Chief Executive must cause an assessment of the circumstances of a child or young person to be carried out if the Chief Executive issues an instrument of guardianship or a restraining notice in relation to the child or young person. (3) Without limiting any other provision of this Act, the Chief Executive or a child protection officer, may in relation to an assessment referred to in subsection (1)(b), direct any person who has examined, assessed or treated a person who is a party to the application for the order under section 115 to provide to the Chief Executive a written report of that examination, assessment or treatment. (4) A person must not, without reasonable excuse, refuse or fail to comply with a direction under this section. Maximum penalty: $10 000 or imprisonment for 6 months. (5) Subsection (4) does not apply to a child or young person to whom a direction is given under this section. (6) The regulations may make further provisions relating to an assessment under this section. 80—Referral of matter to other State authority (1) If, following an assessment of a matter under section 77, the Chief Executive determines that it is more appropriate that a State authority other than the Department deal with the matter, or with a particular aspect of the matter, the Chief Executive must refer the matter to that State authority. (2) To avoid doubt— (a) a matter may be referred to more than 1 State authority; and (b) a matter may be dealt with under this section even if it is referred to a State authority under another Act. (3) The Chief Executive may, if of the opinion that it is appropriate, give directions or guidance in relation to a matter to a State authority to which the matter is referred. (4) Without limiting this section or any other Act or law, a State authority to which a matter is referred must deal with the matter in a timely manner. 81—Direction that child or young person be examined, assessed or treated (1) This section applies to the following children and young people: (a) a child or young person who is, having been removed under section 87, in the custody of the Chief Executive; (b) a child or young person in relation to whom an order of the Court under Part 10 authorising examination or assessment is in force; (c) a child or young person in relation to whom an instrument of guardianship or a restraining notice is in force; (d) if the Chief Executive determines that it is, having regard to the operation of Part 2 and Part 4 (if applicable), necessary or appropriate for a child or young person to be examined or assessed—that child or young person. (2) If the Chief Executive is of the opinion that it is necessary or desirable that a child or young person to whom this section applies be professionally examined or assessed, the Chief Executive may, by notice in writing, direct that the child or young person undergo such examination or assessment as may be specified in the notice. (3) If the Chief Executive gives a direction under subsection (2), an employee of the Department may take the child or young person to such persons or places (including admitting the child or young person to hospital) as may be specified in the notice for the purpose of having the child or young person professionally examined or assessed. (4) Without otherwise limiting any Act or law regulating a particular health profession, a person to whom a child or young person is taken under this section may give such treatment to the child or young person as the person thinks necessary for alleviating any injury or suffering of the child or young person. (5) Without otherwise limiting the Consent to Medical Treatment and Palliative Care Act 1995, if a person is to examine, assess or treat a child or young person in accordance with this section, the consent of the child or young person's parent or guardian is not required in order for the examination, assessment or treatment to take place. (6) Nothing in this section limits the Criminal Law (Forensic Procedures) Act 2007. (7) A person who examines, assesses or treats a child or young person in accordance with this section must, as soon as reasonably practicable after doing so, provide to the Chief Executive a written report on the examination, assessment or treatment. 82—Direction that person undergo certain assessments (1) If the Chief Executive reasonably suspects that a child or young person (not being an unborn child) is at risk of harm as a result of the use of alcohol or other drug (or both) by a parent, guardian or other person, the Chief Executive may, by notice in writing, direct the person to undergo an approved drug and alcohol assessment. (2) If the Chief Executive reasonably suspects that a child or young person (not being an unborn child) is at risk of harm as a result of a lack of parenting capacity on the part of a parent, guardian or other person who has, or is responsible for, the care of the child or young person, the Chief Executive may, by notice in writing, direct the person to undergo an approved parenting capacity assessment. (3) If the Chief Executive reasonably suspects that a child or young person (not being an unborn child) is at risk of harm as a result of impaired mental health on the part of a parent, guardian or other person who has, or is responsible for, the care of the child or young person, the Chief Executive may, by notice in writing, direct the person to undergo an approved mental health assessment. (4) A person must not refuse or fail to comply with a direction under this section. (5) A notice under this section must set out the information (if any) required by the regulations. (6) For the purposes of this section— (a) a reference to an approved drug and alcohol assessment will be taken to be a reference to a drug and alcohol assessment of a kind approved by the Chief Executive by notice in the Gazette; and (b) a reference to an approved mental health assessment will be taken to be a reference to a mental health assessment of a kind approved by the Chief Executive by notice in the Gazette; and (c) a reference to an approved parenting capacity assessment will be taken to be a reference to a parenting capacity assessment of a kind approved by the Chief Executive by notice in the Gazette. 83—Random drug and alcohol testing (a) a person who the Chief Executive reasonably suspects is putting a child or young person (not being an unborn child) at risk of harm as a result of the person's use of alcohol or other drug (or both); or (b) any other person, or person of a class, prescribed by the regulations. (2) The Chief Executive may, by notice in writing and in accordance with the scheme set out in the regulations, require a person to whom this section applies to take part in random drug and alcohol testing and, for that purpose, to take the action, and within the period, specified in the notice. (3) Without limiting any other regulations that may be made in relation to the scheme for random drug and alcohol testing, the regulations must include provisions— (a) authorising the taking of specified forensic material for the purposes of this Act; and (b) requiring forensic material to be tested to identify any drug or alcohol that may be present in the material; and (c) requiring or authorising the results of such testing to be provided to the Chief Executive or other specified person or body. (4) A person to whom this section applies must not, without reasonable excuse, refuse or fail to comply with a requirement under this section. (5) A person is not entitled to refuse or fail to comply with a requirement under this section on the ground that the person would, or might, by complying with that requirement, provide evidence that could be used against the person. (6) To avoid doubt, for the purposes of the Criminal Law (Forensic Procedures) Act 2007, the taking of forensic material in the course of a random drug and alcohol test is authorised under this Act. 84—Direction that person undertake rehabilitation program (1) The Chief Executive may, by notice in writing, direct a person to whom section 83 applies to undertake a specified approved drug and alcohol rehabilitation program. (2) A person must not, without reasonable excuse, refuse or fail to comply with a direction under subsection (1). (3) A notice under subsection (1) must set out the information required by the regulations. (4) For the purposes of this section, a reference to an approved drug and alcohol rehabilitation program will be taken to be a reference to a drug and alcohol rehabilitation program of a kind approved by the Chief Executive by notice in the Gazette. 85—Forensic material not to be used for other purposes and test results not admissible in other proceedings (1) Forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program must not be used for a purpose other than a purpose contemplated by this Act. (2) The results of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program— (a) will not be admissible in evidence against the person to whom the results relate, other than in proceedings for an order of the Court under this Act; and (b) may not be relied on as grounds for the exercise of any search power or the obtaining of any search warrant. 86—Destruction of forensic material Any person or body who is in possession of forensic material obtained in the course of an approved drug and alcohol assessment, a random drug and alcohol test or an approved drug and alcohol rehabilitation program must ensure that such forensic material is destroyed in accordance with any requirements set out in the regulations. Division 3—Removal of children and young people 87—Removal of child or young person (1) Subject to this section, if a child protection officer believes on reasonable grounds that— (a) a child or young person is at risk of significant harm; and (b) it is necessary to remove the child or young person in order to protect them from significant harm or further significant harm; and (c) there is no reasonably practicable alternative to removing the child or young person in the circumstances, the child protection officer may remove the child or young person from any premises, place, vehicle or vessel using such force (including breaking into the premises, place, vehicle or vessel) as is reasonably necessary for the purpose. (2) Despite any other provision of this Act, a child protection officer must, in determining whether to remove a child or young person under subsection (1), always prioritise the safety of the child or young person. See section 10. (3) If a child protection officer believes on reasonable grounds— (a) that a child or young person would, if the child or young person were residing with a specified person with whom the child or young person ordinarily resides, or with whom the child or young person is likely to reside, be at risk of significant harm; and (b) the child or young person is residing with a person other than the specified person; and (c) the child protection officer does not consider it to be in the best interests of the child or young person to be removed from that location, the child protection officer may, instead of removing the child or young person in accordance with subsection (1) but acting in accordance with any requirements set out in the regulations, issue a notice (a custody notice) placing the child or young person in the custody of the Chief Executive. (4) Without limiting the generality of a preceding subsection, the regulations may set out circumstances in which 1 or more of the requirements under those subsections will be taken to have been satisfied. (5) If a child or young person contemplated by subsection (1)— (a) is admitted to a hospital for medical treatment; or (b) is residing at any other prescribed premises, or is residing at premises for treatment of a prescribed kind, and the child protection officer does not consider it to be in the best interests of the child or young person to be removed from that location, the child protection officer may, instead of removing the child or young person in accordance with subsection (1) but acting in accordance with any requirements set out in the regulations, issue a notice (a custody notice) placing the child or young person in the custody of the Chief Executive. (6) A custody notice issued under this section must be served on— (a) if the child or young person is of or above 10 years of age—the child or young person; and (b) in the case of a custody notice issued under subsection (3)—the person with whom the child or young person is residing; and (c) in the case of a custody notice issued under subsection (5)—the person in charge of the hospital or other premises. (7) The Chief Executive has custody of a child or young person— (a) in the case of a child or young person removed in accordance with subsection (1)—from the time at which the child or young person is removed under that subsection; or (b) in the case of a child or young person in relation to whom a custody notice is issued under subsection (3) or (5)—from the time at which the custody notice is issued. (8) A child protection officer who is a police officer below the rank of inspector may only remove a child or young person or issue a custody notice in relation to a child or young person under this section with the prior approval of a police officer of or above the rank of inspector. (9) A child protection officer who is an employee of the Department may only remove a child or young person or issue a custody notice in relation to a child or young person with the Chief Executive's prior approval. (10) Subsections (8) and (9) do not apply if the police officer or child protection officer (as the case may be) believes on reasonable grounds that the delay involved in seeking prior approval would significantly increase the risk of significant harm, or further significant harm, being caused to the child or young person. 88—Action following removal etc of child or young person (1) A child or young person removed under section 87, or in relation to whom a custody notice is issued under that section, is, by force of this subsection, in the custody of the Chief Executive until— (a) the child or young person is returned to the custody of a parent or guardian; or (b) an order of the Court is made in relation to the custody or guardianship of the child or young person; or (c) the end of the fifth business day following the day on which the child or young person was removed or the custody notice issued, (2) However, a child or young person must not be returned to the custody of a parent or guardian if the Chief Executive or a child protection officer (as the case may be) reasonably suspects that, if the child or young person were to be so returned, the child or young person would be at risk of harm. Division 4—Intervention if parent of child or young person found guilty of certain offences 89—Interpretation instrument period means the period commencing at the time an instrument of guardianship— (a) is served on the offender in accordance with section 91(4)(a); or (b) is lodged with the Court in accordance with section 91(4)(b), whichever occurs first, and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 93); parent, of a child or young person, does not include— (a) a step‑parent of the child or young person; or (b) a person who stands in loco parentis to the child or young person; qualifying offence means any of the following offences (whether committed before or after the commencement of this Division) where the victim was a child or young person and the offender was a parent of the child or young person: (a) murder; (b) manslaughter; (c) an offence against any of the following sections of the Criminal Law Consolidation Act 1935: (i) section 14 (criminal neglect); (ii) section 20A (choking, suffocation or strangulation in a domestic setting); (iii) section 23 (causing serious harm); (iv) section 29(1) or (2) (acts endangering life or creating risk of serious harm); (v) section 48 (rape); (vi) section 48A (compelled sexual manipulation); (vii) section 49 (unlawful sexual intercourse); (viii) section 50 (sexual abuse of a child); (ix) section 51 (sexual exploitation of person with a cognitive impairment); (x) section 56 (indecent assault); (xi) section 58 (acts of gross indecency); (xii) section 59 (abduction of male or female person); (xiii) section 60 (procuring sexual intercourse); (xiv) section 63 (production or dissemination of child exploitation material); (xv) section 63B (procuring child to commit indecent act etc); (xvi) section 66 (sexual servitude and related offences); (xvii) section 67 (deceptive recruiting for commercial sexual services); (xviii) section 68 (use of children in commercial sexual services); (xix) section 72 (incest); (d) an offence under a previous enactment that corresponds to an offence referred to in a preceding paragraph; (e) an offence constituted of an attempt to commit an offence referred to in a preceding paragraph; (f) any other offence prescribed by the regulations; (g) an offence under the law of another jurisdiction that corresponds to an offence referred to in a preceding paragraph; restraining notice period means the period commencing at the time at which the restraining notice is served on the offender in accordance with section 92(4)(a) and ending 60 days later (or such longer period as may be allowed by the Court on an application under section 93). 90—Chief Executive to be notified if person found guilty of qualifying offence If a person is found guilty of a qualifying offence, the Courts Administration Authority must ensure that the prescribed information relating to the finding of guilt is provided to the Chief Executive as soon as is reasonably practicable after the finding of guilt. 91—Temporary instruments of guardianship (1) The Chief Executive must, if the Chief Executive becomes aware that a child or young person born after 22 October 2018 is residing with a parent of the child or young person who has been found guilty of a qualifying offence (the offender), issue an instrument under this section (an instrument of guardianship) in respect of the child or young person. (2) If the Chief Executive issues an instrument of guardianship, the child or young person specified in the instrument will, for all purposes, be under the guardianship of the Chief Executive during the instrument period. (3) Subsection (2) applies subject to an order of the Court under this Act to the contrary. (4) An instrument of guardianship issued under this section must— (a) be served on the offender as soon as practicable after it has been issued; and (b) be lodged with the Court in accordance with the rules of the Court (and may be so lodged whether or not it has been served in accordance with paragraph (a)). (5) Subject to subsection (6), this Act applies to an instrument of guardianship, while it remains in force, as if it were an order of the Court under this Act and as if the parties to that order were— (a) the parents of the child or young person to whom the instrument relates; and (b) the child or young person to whom the instrument relates; and (c) a person who would, but for the instrument, have had custody of or guardianship for the child or young person to whom the instrument relates; and (d) the Chief Executive. (6) Until the application required under section 94 in relation to an instrument of guardianship is made to the Court, any application to the Court required under section 122 in relation to the instrument may only seek to vary arrangements for the care of the child or young person. (7) For the purposes of this section, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person on being discharged. 92—Restraining notices (1) The Chief Executive must, if the Chief Executive becomes aware that a child or young person is residing, or is about to reside, with a person (not being a parent of the child or young person) who has been found guilty of a qualifying offence (the offender), issue a notice under this section (a restraining notice) to the offender, unless the Chief Executive is of the opinion that it is inappropriate to do so in the circumstances. (2) A restraining notice may prohibit the offender from doing 1 or more of the following: (a) residing in the same premises as the child or young person; (b) coming within a specified distance of the residence of the child or young person; (c) having any contact with the child or young person (except in the presence of a specified person or person of a specified class); (d) having any contact at all with the child or young person, during the restraining notice period. (3) Subsection (2) applies subject to an order of the Court under this Act to the contrary. (4) A restraining notice issued in relation to an offender must— (a) be served on the offender as soon as practicable after it has been issued; and (b) be lodged with the Court in accordance with the rules of the Court (and may be so lodged whether or not it has been served in accordance with paragraph (a)). (5) A person who contravenes a restraining notice is guilty of an offence. Maximum penalty: Imprisonment for 2 years. (6) A person does not commit an offence against subsection (5) in respect of an act or omission unless the person knew that the act or omission constituted a contravention of the notice or was reckless as to that fact. (7) For the purposes of this section, a newborn child who has not yet been discharged from hospital will be taken to be residing with a person if the child is likely to reside with the person on being discharged. 93—Extension of periods for instruments and notices The Court may, on application by the Chief Executive, extend an instrument period or a restraining notice period if satisfied that it is appropriate to do so. 94—Application for Court orders to be made if instrument of guardianship or restraining notice issued The Chief Executive must, as soon as is reasonably practicable (and, in any case, within the applicable instrument period or restraining notice period) after an instrument of guardianship or a restraining notice in relation to a child or young person has been issued, apply for an order or orders of an appropriate kind under Part 10 in relation to the child or young person. Orders revoking or varying instruments of guardianship or restraining notices may also be made by the Court under Part 10.