Children and Young Persons (Care and Protection) Regulation 2022
In ForceNSW
Jurisdiction
New South Wales
Act Number
479 of 2022
Collection
regulation
Plain English Summary
7/10 complexity
The Regulation replaces the 2012 rules and sets detailed procedures for out‑of‑home care, guardianship and carer authorisation in NSW. It prescribes application and suitability checks (including WWCC, assessments, training), provisional/emergency pathways, duties and automatic suspension/cancellation triggers, limits on behaviour management and rules for psychotropic medication, records access, and required care plans.
It affects prospective and authorised carers, co‑residents, designated agencies, providers and the Children’s Court — creating compliance costs, supervisory duties and significant agency discretion that shape who can provide care.
The Children and Young Persons (Care and Protection) Regulation 2022 is subordinate legislation made under the Children and Young Persons (Care and Protection) Act 1998 (the Act). Its primary function is to supply the operational machinery that turns the Act’s high-level principles into enforceable, standardised procedures across New South Wales.
Part 1 contains preliminary provisions, including a comprehensive dictionary (s 3) that imports definitions from the Children’s Guardian Act 2019 (accredited adoption service provider, residential care) and the Child Protection (Working with Children) Act 2012 (WWCCC, interim bar) while adding regulation-specific terms such as “assessable person”, “co-resident”, “uniform suitability assessment” and “provisional authorisation”. Section 3(2) expressly extends references to Public Service agencies to include parts of agencies, ensuring granular application.
Part 2 addresses general matters. Section 4 lists four specific circumstances the Children’s Court may consider when deciding whether there has been a significant change of circumstance under Act s 90(2) sufficient to justify rescission or variation of a care order. Section 5 prescribes bodies and classes of persons for the purposes of Act ss 248(6) and 245B(1), with the lists appearing in Schedule 5. These include education and care services, registered community housing providers, designated agencies, Commonwealth departments, the NDIS Quality and Safeguards Commission and various health practitioners.
Part 3 deals with records, reporting and information exchange. Division 1 (s 6) sets a 20-business-day statutory timeframe (extendable by up to 15 business days) for the Secretary to provide Aboriginal or Torres Strait Islander families with access to placement records, accompanied by identity verification requirements. Division 2 expands mandatory reporting (s 7) to disability service providers and their managers, and extends alternative reporting arrangements under Act s 27A to non-NSW Health Service providers (s 8). Section 9 prescribes senior officers in seven interstate and federal law enforcement agencies for information-sharing purposes under Act s 29(6).
Current sections
Direct links to the current provisions in Children and Young Persons (Care and Protection) Regulation 2022.
WWCCC application means an application for a WWCCC that has not been finally determined, withdrawn or terminated.
Note—
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2) In this Regulation, a reference to a Public Service agency or other organisation includes a reference to part of an agency or organisation.
Part 2
General
Part 2 General
Part 2 General
4
Rescission and variation of care orders—the Act, s 264(1A)(d)
4 Rescission and variation of care orders—the Act, s 264(1A)(d)
4 Rescission and variation of care orders—the Act, s 264(1A)(d)
The matters that may be taken into account by the Children’s Court in determining, under the Act, section 90(2), whether there has been significant change in a relevant circumstance of a child or young person since a care order was made or last varied include the following—
(a) the parents of the child or young person have not met their responsibilities under a care plan or permanency plan involving restoration,
(b) the Children’s Court, having conducted a progress review under the Act, section 82(3), is not satisfied proper arrangements have been made for the care and protection of the child or young person,
(c) an application has been made for a guardianship order for the child or young person,
(d) for a guardianship order—the guardian is unable or unwilling to meet the guardian’s responsibilities to the child or young person.
5
Prescribed bodies
5 Prescribed bodies
5 Prescribed bodies
(1) For the Act, section 248(6), definition of prescribed body, paragraph (g), the bodies listed in Schedule 5, section 1 are prescribed.
Note—
A body prescribed for the Act, section 248(6) is, by virtue of the Act, section 245B(1), definition of prescribed body, also a prescribed body for the Act, Chapter 16A.
(2) For the Act, section 245B(1), definition of prescribed body, paragraphs (b) and (c), the classes of persons listed in Schedule 5, section 2 are prescribed.
Part 3
Records, reporting and information
Part 3 Records, reporting and information
Part 3 Records, reporting and information
Division 1
Records
Division 1 Records
Division 1 Records
6
Access to records relating to Aboriginal persons and Torres Strait Islanders—the Act, s 14(5)
6 Access to records relating to Aboriginal persons and Torres Strait Islanders—the Act, s 14(5)
6 Access to records relating to Aboriginal persons and Torres Strait Islanders—the Act, s 14(5)
(1) A person who is entitled under the Act, section 14(2) to have access to records relating to the placement of an Aboriginal or Torres Strait Islander child or young person may request access to the records.
(2) The request—
(a) must be made to the Secretary, and
(b) may be oral or written, and
(c) must be accompanied by proof of the applicant’s identity.
(3) The Secretary may give access to the records in the following ways—
(a) by making the records available for inspection,
(b) by providing a copy of the records.
(4) The Secretary must give access to the records within 20 business days after receiving a request.
(5) If it is not reasonably practicable to give access within 20 business days, the Secretary must, before 20 business days have passed—
(a) explain to the applicant the reason access to the records cannot be given within 20 business days, and
(b) extend the period in which the records must be provided by up to 10 business days.
(6) More than 1 extension may be made under subsection (5)(b) with the total of all extensions for a particular request being a maximum of 15 business days.
(7) The period in which records must be provided may also be extended more than once by agreement with the applicant.
(8) (Repealed)
Note—
Other legislation also governs access to records, including the following—
Application of mandatory reporting requirements—the Act s 264(1A)(b)
7 Application of mandatory reporting requirements—the Act s 264(1A)(b)
7 Application of mandatory reporting requirements—the Act s 264(1A)(b)
The Act, section 27 applies to the following classes of persons—
(a) a person who, while practising a profession or in other paid employment, provides disability services, wholly or partly, to children,
(b) a person who holds a management position in an organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of disability services, wholly or partly, to children.
8
Extension of alternative reporting arrangements—the Act s 27A(10)
8 Extension of alternative reporting arrangements—the Act s 27A(10)
8 Extension of alternative reporting arrangements—the Act s 27A(10)
(1) The operation of the Act, section 27A is extended to relevant service providers to whom the Act, section 27 applies but who are not employed in, or engaged by, the NSW Health Service.
(2) A reference in the Act, section 27A to a staff member is taken to include a reference to a relevant service provider.
(3) The NSW Health Service is taken to be the relevant agency under the Act, section 27A for a relevant service provider.
(4) In this section—
relevant service provider means the following—
(a) an employee of, or a person engaged by, an affiliated health organisation within the meaning of the Health Services Act 1997,
(b) an employee of, or a person engaged by, a private health facility that provides services to the public on behalf of a statutory health organisation within the meaning of the Health Services Act 1997 or the Ministry of Health,
(c) an employee of, or a person engaged by, an organisation that is or is eligible to become an ordinary member or associate member of the Aboriginal Health and Medical Research Council of NSW,
(d) a medical practitioner,
(e) a nurse who is employed or engaged to work in the medical practice of a medical practitioner who is registered in the specialty of general practice or otherwise practices in general medical practice, whether or not the nurse is employed by the medical practice.
9
Senior officers of Australian law enforcement agencies—the Act, s 29(6)
9 Senior officers of Australian law enforcement agencies—the Act, s 29(6)
9 Senior officers of Australian law enforcement agencies—the Act, s 29(6)
For the Act, section 29(6), definition of senior officer, paragraph (b), the following classes of persons employed in the specified law enforcement agencies are prescribed as senior officers of the agencies—
(a) persons holding the rank of superintendent or above in the Australian Federal Police,
(b) persons holding the rank of superintendent or above in the Northern Territory Police Force,
(c) persons holding appointment as commissioned police officers of the Queensland Police Service,
(d) persons holding the rank of inspector or above in South Australia Police,
(e) persons holding the rank of inspector or above in Tasmania Police,
(f) persons holding or acting in the rank of inspector or above in Victoria Police,
(g) persons holding appointment as commissioned police officers of the Western Australia Police Force.
Part 4
Care plans and alternative parenting plans
Part 4 Care plans and alternative parenting plans
Part 4 Care plans and alternative parenting plans
10
Care plans—the Act, s 78(6)
10 Care plans—the Act, s 78(6)
10 Care plans—the Act, s 78(6)
A care plan must include the information required by Schedule 3.
11
Alternative parenting plans—the Act, s 264(1A)(e)
11 Alternative parenting plans—the Act, s 264(1A)(e)
11 Alternative parenting plans—the Act, s 264(1A)(e)
An alternative parenting plan submitted to the Children’s Court under the Act, section 116 or 119 must comply with Schedule 4.
Part 5
Guardianship orders
Part 5 Guardianship orders
Part 5 Guardianship orders
12
Form of child’s or young person’s consent to guardianship order—the Act, s 79A(3)
12 Form of child’s or young person’s consent to guardianship order—the Act, s 79A(3)
12 Form of child’s or young person’s consent to guardianship order—the Act, s 79A(3)
(1) For the Act, section 79A(3)(d), the consent of a child or young person must—
(a) be written, and
(b) be signed by the child or young person in the presence of a relevant witness, and
(c) include a statement from the relevant witness that the witness complied with subsections (2) and (3).
(2) The relevant person must explain to the child or young person the nature of the guardianship order to which the consent relates.
(3) The explanation must—
(a) be given at least 14 days before the consent is signed by the child or young person, and
(b) be given in a way and use language the child or young person can understand, and
(c) include the following information—
(i) if the order is made, all aspects of parental responsibility for the child or young person will be allocated under the order to a specified person or persons,
(ii) an order may be rescinded or varied under the Act, section 90,
(iii) the child or young person is entitled to obtain independent legal advice before signing the consent.
(4) In this section—
relevant witness means—
(a) the principal officer of the designated agency responsible for supervising the placement of the child or young person, or
(b) an employee of the designated agency responsible for supervising the placement of the child or young person who has been directly involved in the supervision of the child or young person’s placement, or
(c) an Australian legal practitioner.
13
Assessment of prospective guardians—the Act, s 79B
13 Assessment of prospective guardians—the Act, s 79B
13 Assessment of prospective guardians—the Act, s 79B
(1) The assessment body assessing a prospective guardian’s suitability to have parental responsibility for a child or young person—
(a) must give information to the prospective guardian about the role of a guardian, and
(b) must conduct a review of the placement of the child or young person in out-of-home care.
(2) The prospective guardian must give the assessment body information the assessment body reasonably requires to assess the prospective guardian’s suitability.
(3) For the Act, section 79B(1A), the prescribed suitability assessments are—
(4) An assessment body must give the applicant for the guardianship order a statement (a suitability statement) setting out—
(a) the results of the suitability assessments, and
(b) the steps the assessment agency has taken to comply with this section.
(5) The applicant for the guardianship order must present the suitability statement to the Children’s Court before the order is made.
14
Financial assistance to guardians—the Act, s 79C(5)
14 Financial assistance to guardians—the Act, s 79C(5)
14 Financial assistance to guardians—the Act, s 79C(5)
It is a condition of financial assistance under the Act, section 79C that the guardian of a child or young person who is provided assistance must, within 21 days after the child or young person leaves the guardian’s care, advise the Secretary in writing the child or young person has left the guardian’s care.
Part 6
Out-of-home care
Part 6 Out-of-home care
Part 6 Out-of-home care
15
Arrangements and services that are not out-of-home care—the Act, s 135(3)
15 Arrangements and services that are not out-of-home care—the Act, s 135(3)
15 Arrangements and services that are not out-of-home care—the Act, s 135(3)
(1) For the Act, section 135(3)(c) the following are not out-of-home care—
(c) boarding services provided by an educational institution, or a body affiliated with an educational institution, to enable children and young people to attend the institution,
(d) a place used for the detention of children and young persons pending criminal proceedings, including police custody, or a detention centre within the meaning of the Children (Detention Centres) Act 1987,
(g) a holiday camp, outdoor recreation centre or similar facility where children and young people undertake or receive education, training or instruction in academic, religious, athletic or recreational pursuits,
(h) placement with a person authorised as an authorised carer under the Act, section 137(1)(c) in accordance with arrangements not involving supervision by a designated agency,
(i) placement arrangements provided to give respite to children and young persons who are carers and their siblings,
(j) accommodation provided by specialist homelessness services funded by the Department.
(2) In this section—
educational institution means a school, training establishment or university.
16
Application for review of temporary care arrangement—the Act, s 152(6)
16 Application for review of temporary care arrangement—the Act, s 152(6)
16 Application for review of temporary care arrangement—the Act, s 152(6)
(1) An application to the Children’s Court for review of a temporary care arrangement must be in writing.
(2) A person who applies for a review of a temporary care arrangement must, as soon as practicable after the application is made, cause a copy of the application, endorsed with the time, date and place set down for the hearing of the application, to be served on—
(a) for an application made on behalf of the child or young person who is the subject of the arrangement—each person having parental responsibility for the child or young person who can reasonably be located, or
(b) for an application by a person having parental responsibility for the child or young person—the child, if at least 10 years of age, or young person.
(3) A child or young person who applies for review of a temporary care arrangement is not required to serve a copy of the application on another person.
pt.6-div.2-sdiv.1
Authorisation
pt.6-div.2-sdiv.1 Authorisation
Subdivision 1 Authorisation
17
Application to be an authorised carer in a private capacity
17 Application to be an authorised carer in a private capacity
17 Application to be an authorised carer in a private capacity
(1) A natural person may apply in writing to a designated agency to be an authorised carer.
(2) On receipt of an application, the designated agency must provide the applicant with information about the following—
(a) the rights and responsibilities of authorised carers,
(b) the authorisation process including the criteria an applicant must satisfy,
(c) permanent placement options for a child or young person in out-of-home care.
(3) An application must be accompanied by the information the designated agency reasonably requires to assess the applicant’s capability and suitability to be an authorised carer.
(4) An application may be withdrawn, by written notice or verbally, before it is determined.
18
Determination of application
18 Determination of application
18 Determination of application
(1) A designated agency determines an application by—
(a) approving the application and authorising the applicant as an authorised carer, or
(b) refusing the application.
(2) A designated agency must not authorise an applicant as an authorised carer unless the agency is satisfied the applicant is capable and suitable to be an authorised carer.
(3) Before authorising an applicant as an authorised carer the designated agency must—
(a) be satisfied the applicant and each adult residing on the same property as the applicant have complied with the requirements of the Child Protection (Working with Children) Act 2012 for engaging in child-related work as an authorised carer, and
(b) obtain or conduct a uniform suitability assessment of the applicant and each co-resident of the applicant and determine the result of each element of the assessment is satisfactory, and
(c) be satisfied the applicant has completed the education or training required by the agency, and
(d) receive from the applicant a signed statement that the applicant has read, understood and will comply with the code of conduct for authorised carers approved by the Minister under the Act, section 248C, and
(e) take into account—
(i) the functions of an authorised carer and the risk the applicant would be unable to properly perform the functions, and
(ii) risks to a child or young person if the applicant is authorised, including risks from the applicant’s home and from a person who resides on the same property as the applicant, and
(iii) relevant information available to the agency.
(4) Authorisation of an applicant as an authorised carer under this section takes effect when the designated agency gives the applicant written notice of the authorisation.
(5) The principal officer of a designated agency must carry out the functions of the agency under this section, unless the Children’s Guardian approves the carrying out of the functions by another person.
(6) Failure to comply with subsection (5) does not affect the validity of an authorisation under this section.
pt.6-div.2-sdiv.2
Provisional authorisation
pt.6-div.2-sdiv.2 Provisional authorisation
Subdivision 2 Provisional authorisation
19
Provisional authorisation
19 Provisional authorisation
19 Provisional authorisation
(1) A designated agency may, in an emergency, authorise a person as an authorised carer for a child or young person on a provisional basis (a provisional authorisation) if the person is—
(a) a relative or kin of the child or young person, or
(b) known to the child or young person.
(2) A provisional authorisation takes effect on the day the first child or young person is placed with the carer.
20
Assessment of capability and suitability to be provisionally authorised
20 Assessment of capability and suitability to be provisionally authorised
20 Assessment of capability and suitability to be provisionally authorised
(1) A designated agency must not provisionally authorise a person under section 19 unless the agency has determined the person is capable and suitable to be provisionally authorised.
(2) Before determining a person is capable and suitable to be provisionally authorised, the designated agency must—
(a) obtain from the person the information the agency reasonably requires to assess the person’s capability and suitability, and
(b) carry out an inspection of the person’s home and be satisfied it will provide a safe and secure environment for a child or young person in out-of-home care who may reside in the home, and
(c) consider the following matters in light of the functions imposed on an authorised carer by or under the Act, information held by the agency and all the circumstances of the case—
(i) risks to a child or young person if the applicant is provisionally authorised,
(ii) the risk the person may be unable to properly perform the functions of an authorised carer.
(3) In assessing a person for provisional authorisation, a designated agency may obtain or conduct a uniform suitability assessment for the person and each co-resident of the person.
(4) The principal officer of a designated agency must carry out the functions of the agency under this section, unless the Children’s Guardian approves the carrying out of the functions by another person.
(5) Failure to comply with subsection (4) does not affect the validity of a provisional authorisation under this section.
21
Administration of provisional authorisation
21 Administration of provisional authorisation
21 Administration of provisional authorisation
(1) A designated agency must, when provisionally authorising a person as an authorised carer, make all reasonable efforts to inform the person, and each adult who resides on the same property as the person, of the relevant requirements of the Child Protection (Working with Children) Act 2012.
(2) A person who is provisionally authorised and who has not, at the time the provisional authorisation takes effect, made an application under section 17 is taken to have a made an application.
(3) It is a condition of a provisional authorisation that the provisionally authorised person must—
(a) submit further information the agency reasonably requires to assess the person’s suitability to continue to be provisionally authorised, and
(b) take all reasonable steps to become authorised.
(4) The Children’s Guardian must monitor a designated agency’s progress in determining a provisionally authorised person’s application made, or taken to have been made, under section 17, if the Children’s Guardian becomes aware the person has been provisionally authorised for more than 3 months.
(5) A designated agency must cancel a provisional authorisation that has been in effect for 3 months or more if directed to do so by the Children’s Guardian by written notice.
(6) The cancellation of the provisional authorisation of a person is taken to be a decision by the designated agency to refuse, under section 18, the person’s application.
(7) The provisional authorisation of a person ceases to have effect when an application by the person for authorisation as an authorised carer is determined under section 18.
pt.6-div.2-sdiv.3
Other authorisations
pt.6-div.2-sdiv.3 Other authorisations
Subdivision 3 Other authorisations
22
Emergency authorisation of residential care worker
22 Emergency authorisation of residential care worker
22 Emergency authorisation of residential care worker
(1) A designated agency may, in an emergency, authorise a person as an authorised carer if the person is—
(a) an employee of the agency whose duties include providing, or supervising the provision of, care to children or young persons, or
(b) a contractor, being a natural person engaged by the agency under a contract to provide services including providing, or supervising the provision of, care to children or young persons, or
(c) an employee of a contractor whose duties as an employee include providing care to children or young persons.
(2) The authorisation—
(a) may be for a maximum of 72 hours, and
(b) takes effect when a child or young person is placed with the person.
(3) A designated agency must not authorise the person unless—
(b) the agency has obtained from the person the information the agency reasonably required to assess the person’s capability and suitability to be an authorised carer, and
(c) the agency has taken into account—
(i) the relevant functions of an authorised carer and the risk the person would be unable to properly perform the functions, and
(ii) relevant information available to the agency.
(4) For the purpose of assessing the person’s suitability, the designated agency may make inquiries about the person the agency considers appropriate, including—
(a) a nationwide criminal record check, and
(b) another relevant probity check relating to the previous employment or other activities of the person.
(5) The principal officer of a designated agency must carry out the functions of the agency under this section, unless the Children’s Guardian approves the carrying out of the functions by another person.
(6) Failure to comply with subsection (5) does not affect the validity of an authorisation under this section.
(7) A designated agency must not authorise a person under this section more than once.
23
Authorisation of residential care workers—the Act, s 137
23 Authorisation of residential care workers—the Act, s 137
23 Authorisation of residential care workers—the Act, s 137
(1) A designated agency may authorise a natural person as an authorised carer if—
(c) the agency has determined the person is capable and suitable to be an authorised carer taking into account—
(i) the relevant functions of an authorised carer and a risk the person would be unable to properly perform the functions, and
(ii) relevant information available to the agency.
(2) The functions of a designated agency under subsection (1)(b) and (c) must be undertaken by the principal officer of the agency and may, with the approval of the Children’s Guardian, be delegated to another person.
(3) Failure to comply with subsection (2) does not affect the validity of an authorisation under this section.
24
Authorisation of residential care workers under sections 22 and 23
24 Authorisation of residential care workers under sections 22 and 23
24 Authorisation of residential care workers under sections 22 and 23
A person authorised as an authorised carer under section 22 or 23 is authorised to provide care only—
(a) for a child or young person for whom care is being provided or supervised by the designated agency that authorised the person, and
Authorisation of interstate residential care workers—the Act, s 137
26 Authorisation of interstate residential care workers—the Act, s 137
26 Authorisation of interstate residential care workers—the Act, s 137
(1) For the purpose of a designated agency making arrangements for a child or young person to be provided with residential care by an interstate agency, an interstate residential care worker is taken to be an authorised carer if the interstate agency satisfies the designated agency that all persons employed or engaged by the interstate agency to provide residential care to children and young people—
(a) have been assessed as capable and suitable to provide the care, and
(b) hold a current WWCCC or its equivalent in the relevant State, and
(c) have undergone a nationwide criminal record check and the outcome of the check was satisfactory.
(2) An interstate residential care worker taken to be authorised under this section is not taken to be authorised for the purpose of providing out-of-home care in New South Wales.
(3) In this section—
interstate agency means—
(a) the child welfare agency of another State, or
(b) a service provider funded by or contracted by the child welfare agency of another State to provide residential care to children and young people.
interstate residential care worker means a person who is employed or engaged to provide residential care by an interstate agency.
State has the same meaning as in the Act, Chapter 14A.
27
Other carers authorised by Department to enable special care
27 Other carers authorised by Department to enable special care
27 Other carers authorised by Department to enable special care
(1) The Department, in its capacity as a designated agency, may authorise a person as an authorised carer to provide special out-of-home care if the person is—
(a) an employee of a special care provider whose duties include providing, or supervising the provision of, care to children or young persons, or
(b) a contractor, or
(c) an employee of a contractor whose duties as an employee include providing care to children or young persons.
(2) The Department must not authorise a person under subsection (1) unless the relevant special care provider has—
(a) informed the Department the special care provider is satisfied the person has complied with the requirements of the Child Protection (Working with Children) Act 2012 for the child-related work as an authorised carer, and
(b) done anything else required under that Act in relation to the authorisation, whether before or after the commencement of this section.
(3) The Department must not place a child or young person in the out-of-home care of a person authorised under subsection (1) unless the Department has—
(a) determined the child or young person requires special out-of-home care that will be effectively provided by the placement, and
(b) consulted the Children’s Guardian about the placement.
(4) In this section—
contractor means a natural person engaged by a special care provider under a contract to provide services including providing, or supervising the provision of, care to children or young persons.
impairment includes, but is not limited to—
(a) an intellectual impairment,
(b) a psychiatric impairment,
(c) a sensory impairment,
(d) a physical impairment.
special care provider means an organisation the Department has determined is suitable to provide special out-of-home care for children or young persons.
special out-of-home care for a child or young person means out-of-home care provided for a child or young person who has 1 or more impairments that—
(a) is permanent or likely to be permanent, and
(b) results in significantly reduced capacity in one or more major life activities, including the following—
(i) communication,
(ii) learning,
(iii) mobility,
(iv) decision-making,
(v) self-care.
28
Authorised carer authorised by designated agency to give respite to usual authorised carer
28 Authorised carer authorised by designated agency to give respite to usual authorised carer
28 Authorised carer authorised by designated agency to give respite to usual authorised carer
(1) A designated agency may authorise a person as an authorised carer who can provide respite for other authorised carers if the person is—
(a) an employee of a respite care provider whose duties include providing, or supervising the provision of, care to children or young persons, or
(b) a contractor, or
(c) an employee of a contractor whose duties as an employee include providing care to children or young persons.
(2) A designated agency must not authorise a person under subsection (1) unless the relevant respite care provider has—
(a) informed the agency the respite care provider is satisfied the person has complied with the requirements of the Child Protection (Working with Children) Act 2012 for child-related work as an authorised carer, and
(b) done anything else required under that Act in relation to the authorisation, whether before or after the commencement of this section.
(3) The principal officer of a designated agency must carry out the functions of the agency under this section, unless the Children’s Guardian approves the carrying out of the functions by another person.
(4) Failure to comply with subsection (3) does not affect the validity of an authorisation under this section.
(5) A designated agency must not place a child or young person in the out-of-home care of a person authorised under subsection (1) unless the agency has given the Children’s Guardian written notice of the name, and the street and postal address of the principal place of business of the respite care provider.
(6) A designated agency must notify the Children’s Guardian in writing if a child or young person is placed in the out-of-home care of a person authorised by the agency under subsection (1) for a period or periods amounting to more than 90 days in a 12 month period.
(7) In this section—
contractor means a natural person engaged by a respite care provider under a contract to provide services including providing, or supervising the provision of, care to children or young persons.
respite care provider means an organisation providing temporary respite relief for authorised carers.
pt.6-div.2-sdiv.4
Conditions of authorisation
pt.6-div.2-sdiv.4 Conditions of authorisation
Subdivision 4 Conditions of authorisation
Note—
The Act, section 248C imposes a condition that an authorised carer must comply with the code of conduct approved by the Minister.
29
Training
29 Training
29 Training
(1) It is a condition of an authorisation that an authorised carer must not provide out-of-home care to a child or young person unless the carer has completed a course of training on the provision of care for a child or young person.
(2) Subsection (1) does not apply to—
(a) out-of-home care provided to a child or young person who is a relative or kin of the carer or who is known to the carer, or
(b) an authorised residential care worker.
30
Designated agency may impose conditions
30 Designated agency may impose conditions
30 Designated agency may impose conditions
(1) A designated agency may, by written notice—
(a) impose reasonable conditions on the authorisation of an authorised carer, including a condition that the authorised carer may provide out-of-home care only to specified children or young persons or to a specified class of children or young persons, and
(b) vary or revoke a condition imposed under this subsection.
(2) Action under subsection (1) takes effect when the notice is given to the authorised carer.
(3) This section does not apply to an authorised residential care worker.
31
Personal responsibility of authorised carer
31 Personal responsibility of authorised carer
31 Personal responsibility of authorised carer
An authorised carer is personally responsible for carrying out the carer’s functions and duties.
32
Notice of change of address
32 Notice of change of address
32 Notice of change of address
(1) An authorised carer must, before changing residential address, give written notice of the change to an officer or employee of the designated agency.
(2) This section does not apply to an authorised residential care worker.
33
Information to be provided to designated agency
33 Information to be provided to designated agency
33 Information to be provided to designated agency
(1) An authorised carer who is responsible for a child or young person in out-of-home care must give the designated agency information concerning the care of the child or young person the agency may reasonably require from time to time.
(2) An authorised carer who is responsible for a child or young person in out-of-home care must immediately notify the designated agency if 1 or more of the following occurs—
(a) the child or young person leaves the care of the authorised carer,
(b) the child or young person will be, or has been—
(i) expelled or suspended from school, or
(ii) absent from the care of the authorised carer for a period of 24 hours or more without the permission of the authorised carer, or
(iii) absent from New South Wales for any period, whether or not while in the care of the authorised carer, without the permission of the Minister,
(c) the child or young person is charged with a criminal offence for which a penalty of imprisonment for 12 months or more may be imposed,
(d) the child or young person suffers a serious accident, injury or illness,
(e) the child or young person dies,
(f) the authorised carer—
(i) becomes a parent to another child or young person, or
(ii) is charged with or convicted of an offence for which a penalty of imprisonment for 12 months or more may be imposed, or
(iii) becomes aware a member of the carer’s household has been charged with or convicted of an offence for which a penalty of imprisonment for 12 months or more may be imposed,
(g) a child, young person or other person joins the authorised carer’s household.
(3) Subsection (2)(f)(i) and (iii) and (g) do not apply to an authorised residential care worker.
34
Medical examination
34 Medical examination
34 Medical examination
(1) A designated agency may require a person to undergo an examination by a medical practitioner if—
(a) the agency is assessing whether an authorised carer’s household is a healthy environment for the care of children or young persons, and
(b) the person is the authorised carer or a person who resides at the authorised carer’s home.
(2) The requirement must be given to the authorised carer by written notice.
(3) A designated agency may require a person to undergo an examination only—
(a) on the written advice of a medical practitioner, and
(b) if satisfied the examination is reasonably necessary.
(4) The authorised carer must—
(a) undergo the requested examination, or ensure the person to whom the notice relates undergoes the examination, and
(b) ensure a report from the examination is given, within a reasonable time after the examination is conducted, to the designated agency and to another supervising person who requests a copy of the report.
(5) In this section—
supervising person means—
(a) the Secretary or the Secretary’s delegate, or
(b) an officer or employee of the designated agency with supervisory responsibility for a child or young person in the care of an authorised carer.
pt.6-div.2-sdiv.5
Cancellation, suspension and surrender of authorisation
pt.6-div.2-sdiv.5 Cancellation, suspension and surrender of authorisation
Subdivision 5 Cancellation, suspension and surrender of authorisation
35
Cancellation or suspension of authorisation by designated agency
35 Cancellation or suspension of authorisation by designated agency
35 Cancellation or suspension of authorisation by designated agency
A designated agency may, by written notice, cancel or suspend the authorisation of an authorised carer if, in the agency’s opinion, the authorised carer—
(a) is no longer a suitable person to be an authorised carer, or
(b) has failed to—
(i) comply with a condition of the authorisation, or
(ii) comply with a condition or requirement imposed on the authorised carer by the Act or this Regulation, or
(iii) comply with a written direction to the authorised carer given by the designated agency or the Children’s Guardian under the Act, section 157(3), or
(iv) uphold the Charter of Rights prepared by the Minister under the Act, section 162.
Note—
Under the Act, section 245(1)(a) and (a1) a decision to suspend or cancel the authorisation of an authorised carer is administratively reviewable by NCAT.
36
Automatic cancellation—making of guardianship order
36 Automatic cancellation—making of guardianship order
36 Automatic cancellation—making of guardianship order
(1) On the making of a guardianship order making an authorised carer the guardian of a child or young person named in the order, the authorisation of the authorised carer is automatically cancelled as it relates to the child or young person.
Note—
This subsection does not affect an authorisation as an authorised carer as it relates specifically or generally to children or young persons other than the child or young person who is the subject of the guardianship order.
(2) The reference to the making of a guardianship order in subsection (1) extends to an order taken to be a guardianship order under the Act, Schedule 3, section 35 on the commencement of the Act, section 79A.
37
Automatic cancellation—working with children requirements no longer met
37 Automatic cancellation—working with children requirements no longer met
37 Automatic cancellation—working with children requirements no longer met
(1) The authorisation of a person as an authorised carer is automatically cancelled if the person—
(a) no longer has—
(i) a WWCCC, or
(ii) a WWCCC application, or
(b) is subject to an interim bar.
(2) The cancellation of the authorisation takes effect—
(a) when the person is notified—
(i) the person’s WWCCC has been cancelled, or
(ii) the person’s current WWCCC application has been terminated or refused, or
(iii) the person is subject to an interim bar, or
(b) if the WWCCC is cancelled under the Child Protection (Working with Children) Act 2012, section 24—when the person notifies the Children’s Guardian the person wishes to surrender the person’s WWCCC, or
(c) if the WWCCC ceases to have effect because 5 years have passed since it was granted and the holder of the WWCCC has not applied for a new WWCCC—on the day the WWCCC ceases to have effect.
(3) The designated agency supervising the out-of-home care of a child or young person in the care of a person whose authorisation is cancelled under this section must, within 48 hours of becoming aware of the cancellation, ensure the child or young person no longer resides with the person.
(4) The designated agency that authorised a person may revive the person’s authorisation within 2 years after it is cancelled under this section, if the person—
(a) has—
(i) a WWCCC, or
(ii) a WWCCC application, and
(b) is not subject to an interim bar.
(5) Subsection (3) does not apply if—
(a) an authorisation cancelled under subsection (1) is revived under subsection (4) before the child or young person is removed from the person’s residence, and
(b) it is less than 48 hours since the authorisation was cancelled.
38
Automatic cancellation—cessation of employment or contract
38 Automatic cancellation—cessation of employment or contract
38 Automatic cancellation—cessation of employment or contract
The authorisation of a person authorised as an authorised carer in the person’s employment or under a contractual arrangement is automatically cancelled if the person ceases employment or is no longer providing care under the contractual arrangement.
39
Presumption authorisation will be cancelled
39 Presumption authorisation will be cancelled
39 Presumption authorisation will be cancelled
(1) For the purposes of the Act, section 137(2)(e)(ii) the occurrence of the following events raises a presumption the authorisation of a person as an authorised carer will be cancelled—
(a) if the authorisation relates to the out-of-home care of a particular child or young person—the person has not provided out-of-home care to the child or young person for 3 months or more,
(b) in all other cases—the person has not provided out-of-home care to a child or young person under the authorisation for 2 years or more.
(2) Cancellation of an authorisation under subsection (1) must not occur if—
(a) an investigation into whether the person’s authorisation should be cancelled is underway, or
(b) the person has applied for an internal review of a decision to cancel the person’s authorisation and the review is underway, or
(c) the person has applied for the review of a reviewable decision and NCAT has not given a decision, or
Note—
see the Act, section 245 for decisions administratively reviewable by NCAT.
(d) the agency is satisfied the authorisation should not be cancelled in the particular case.
40
Automatic suspension of authorisation
40 Automatic suspension of authorisation
40 Automatic suspension of authorisation
(1) The designated agency supervising the out-of-home care of a child or young person in the care of an authorised carer must, when becoming aware that an unsuitable co-resident resides on the same property as the authorised carer—
(a) notify the authorised carer that the co-resident is unsuitable, and
(b) within 48 hours, remove the child or young person from the care of the authorised carer.
(2) The authorisation of a person as an authorised carer is automatically suspended when the notification is given.
(3) The suspension ceases to have effect when the unsuitable co-resident ceases to reside on the same property as the authorised carer.
(4) The designated agency is not required to remove the child or young person from the care of the authorised carer if—
(a) the suspension ceases to have effect before the child or young person is removed from the care of the authorised carer, and
(b) it is less than 48 hours since the agency became aware of the unsuitable co-resident residing on the same property as the authorised carer.
unsuitable co-resident means a co-resident who, despite requiring a WWCCC or a WWCCC application to reside on the same property as the authorised carer—
(a) does not have 1 of the following—
(i) a WWCCC,
(ii) a WWCCC application,
(iii) a continuing residence approval, or
(b) is subject to an interim bar.
41
Surrender of authorisation
41 Surrender of authorisation
41 Surrender of authorisation
A person authorised as an authorised carer under this Division may surrender the authorisation at any time by giving written notice to the designated agency that authorised the person.
pt.6-div.2-sdiv.6
Miscellaneous
pt.6-div.2-sdiv.6 Miscellaneous
Subdivision 6 Miscellaneous
42
Assessment of persons residing on same property as carer
42 Assessment of persons residing on same property as carer
42 Assessment of persons residing on same property as carer
(1) It is a condition of an authorised carer’s authorisation that all co-residents of the authorised carer must undergo a uniform suitability assessment.
(2) A designated agency must, as soon as practicable after becoming aware a person is a co-resident of an authorised carer who has been authorised under section 18 or 19, obtain or conduct a uniform suitability assessment of the person.
(3) This section does not apply to a co-resident who is a young person in out-of-home care.
43
Authorisation by designated agency to be in writing
43 Authorisation by designated agency to be in writing
43 Authorisation by designated agency to be in writing
A designated agency that authorises a person as an authorised carer under this Division must give the person a written copy of the authorisation setting out conditions imposed by the agency.
Division 3
Authorisation other than by designated agency
Division 3 Authorisation other than by designated agency
Division 3 Authorisation other than by designated agency
44
Other authorisation
44 Other authorisation
44 Other authorisation
(1) For the purposes of the Act, section 137(1)(c), the following persons are authorised as authorised carers—
(a) a person who provides residential care and control of a child or young person whose placement arrangements are not subject to supervision by a designated agency, and who provides care and control under—
(i) a care plan developed by the Secretary, or
(ii) an alternative parenting plan approved or registered by the Children’s Court under the Act, Chapter 7, Part 1,
(b) a person providing residential care and control of a child or young person whose placement arrangements are not subject to supervision by a designated agency under an order of the Supreme Court or the Federal Circuit and Family Court of Australia.
(2) A person referred to in subsection (1) is only authorised as an authorised carer for the child or young person, and the person ceases to be an authorised carer when the person ceases to have care responsibility for the child or young person.
45
Transferred authorisation
45 Transferred authorisation
45 Transferred authorisation
The authorisation of a person as an authorised carer of a child or young person in out-of-home care is taken to be an authorisation by the Department if, under the Act, section 141(1), the Department supervises the placement of the child or young person.
Division 4
Behaviour management—the Act, s 137(2)(g)
Division 4 Behaviour management—the Act, s 137(2)(g)
Division 4 Behaviour management—the Act, s 137(2)(g)
46
Children and young persons supervised by a designated agency
46 Children and young persons supervised by a designated agency
46 Children and young persons supervised by a designated agency
(1) An authorised carer, in supporting a child or young person in out-of-home care to change the child’s or young person’s behaviour must not use a behaviour management practice unless the behaviour management practice is approved by the designated agency responsible for supervising the placement of the child or young person.
(2) A designated agency must not approve a behaviour management practice that includes the following—
(a) physical coercion or physical punishment,
(b) punishment taking the form of immobilisation, force-feeding or depriving a child or young person of food,
(c) punishment intended to humiliate or frighten a child or young person.
(3) An authorised carer who finds the approved behaviour management practices are not sufficiently effective to support behaviour change for a child or young person must notify the designated agency as soon as practicable.
(4) On receiving a notification the designated agency, after assessing the situation, must determine if the behaviour should be addressed by one or more of the following—
(a) providing appropriate advice, support and training to the authorised carer and appropriate support to the child or young person,
(b) adjusting the approved behaviour management practices for the child or young person,
(c) preparing a behaviour support plan for the child or young person.
(5) If the designated agency concludes action under subsection (4) has been, or will be, ineffective to support behaviour change for the child or young person the agency may change the placement arrangements.
47
Children and young persons not supervised by a designated agency
47 Children and young persons not supervised by a designated agency
47 Children and young persons not supervised by a designated agency
(1) This section applies only to a person authorised as an authorised carer under section 44(1)(a).
(2) An authorised carer, in supporting behaviour change for a child or young person in out-of-home care, must not use a behaviour management practice unless the behaviour management practice is approved by the Secretary.
(3) The Secretary must not approve a behaviour management practice that includes the following—
(a) physical coercion or physical punishment,
(b) punishment taking the form of immobilisation, force-feeding or depriving a child or young person of food,
(c) punishment intended to humiliate or frighten a child or young person.
Part 7
Medical examination and treatment
Part 7 Medical examination and treatment
Part 7 Medical examination and treatment
48
Notice of medical examination
48 Notice of medical examination
48 Notice of medical examination
For the Act, section 173(1) the prescribed form of notice is the form in Schedule 1.
Note—
The Interpretation Act 1987, section 80(1) provides where a form is prescribed by, or approved under, an Act, strict compliance with the form is not necessary but substantial compliance is sufficient.
49
Administration of psychotropic drugs to child in statutory out-of-home care—the Act, s 264(1A)(g)
49 Administration of psychotropic drugs to child in statutory out-of-home care—the Act, s 264(1A)(g)
49 Administration of psychotropic drugs to child in statutory out-of-home care—the Act, s 264(1A)(g)
(1) An authorised carer for a child in statutory out-of-home care must immediately notify the designated agency with supervisory responsibility for the placement of the child if a medical practitioner prescribes administration of a psychotropic drug to the child.
(2) On receiving the notification, the principal officer of the designated agency must prepare, or cause to be prepared and approve, a behaviour support plan for the child taking into account administration of the drug.
(3) This section applies to the administration of a psychotropic drug that is also a drug of addiction within the meaning of the Poisons and Therapeutic Goods Act 1966 even if the drug is administered in accordance with an exemption referred to in the Act, section 175(4A).
Note—
For example, methylphenidate, also known as Ritalin, is a psychotropic drug and is also a drug of addiction referred to in section 175(5), definition of special medical treatment, paragraph (c1). Methylphenidate is also the subject of an exemption under the Act, section 175(4A).
(4) In this section—
psychotropic drug means prescribed medication that can affect, by acting on the central nervous system, cognition, perception, thinking, mood, behaviour or level of arousal.
Part 8
Miscellaneous
Part 8 Miscellaneous
Part 8 Miscellaneous
50
Savings and transitional provisions
50 Savings and transitional provisions
50 Savings and transitional provisions
(1) An act, matter or thing that, immediately before the repeal of the previous Regulation, had effect under the previous Regulation continues to have effect under this Regulation.
(2) The Act, section 149A, as in force immediately before its repeal by the amending Act, and the previous Regulation, clauses 10 and 11, as in force before their repeal by the amending Regulation, continue to apply to an order referred to in the Act, Schedule 3, clause 34 despite the repeal of that section and those clauses.
The Interpretation Act 1987, section 30 provides that the repeal of a statutory rule does not affect the operation of savings or transitional provisions contained in the statutory rule. For repealed savings and transitional provisions that may have ongoing operation, see the Children and Young Persons (Care and Protection) Regulation 2012, clause 88.
This Regulation is the Children and Young Persons (Care and Protection) Regulation 2022.
2 Commencement
2 Commencement
2 Commencement
This Regulation commences on 1 September 2022.
Note—
This Regulation replaces the Children and Young Persons (Care and Protection) Regulation 2012, which is repealed on 1 September 2022 by section 10(2) of the Subordinate Legislation Act 1989.
3 Interpretation
3 Interpretation
3 Interpretation
(1) In this Regulation—
accredited adoption service provider has the same meaning as in the Children’s Guardian Act 2019.
adult means an individual who is at least 18 years of age.
assessable person, see Schedule 2, section 1.
assessment body means—
(a) for a person who has applied to be an authorised carer—the designated agency to which the application was made, and
(b) for a prospective guardian who is an authorised carer—the designated agency that—
(i) authorised the prospective guardian as an authorised carer, or
(ii) has supervisory responsibility for a child or young person in the care of the authorised carer, and
(c) for a prospective guardian who is not an authorised carer—the Secretary.
community services check see Schedule 2, section 1.
co-resident means a person, other than a child in out-of-home care, who resides for 3 weeks or more on the same property as—
(a) the authorised carer, or
(b) the person who has applied to be an authorised carer, or
(c) the prospective guardian.
interim bar means an interim bar imposed under the Child Protection (Working with Children) Act 2012, section 17.
Part 4 prescribes the mandatory content of care plans (s 10, Schedule 3) and alternative parenting plans (s 11, Schedule 4). Schedule 3 requires detailed documentation of consultation methods, agency responsibilities, resource availability, education plans, contact orders, success indicators and, where relevant, restoration goals. Schedule 4 mirrors many of these requirements for plans submitted under Act ss 116 and 119.
Part 5 governs guardianship orders. Section 12 prescribes the form and witnessing requirements for a child’s consent, mandating a 14-day cooling-off explanation by a relevant witness. Section 13 requires assessment bodies to provide role information, review placements, conduct working-with-children and uniform suitability assessments, and issue a suitability statement to the Court. Section 14 imposes a 21-day notification obligation on guardians receiving financial assistance under Act s 79C.
Part 6 is the longest and most intricate portion, dealing with out-of-home care. Section 15 lists twelve categories of arrangements that are not out-of-home care (including adoption services, boarding schools, detention centres, health services and specialist homelessness accommodation). Division 2 (authorisations by designated agencies) contains six subdivisions. Subdivision 1 (ss 17–18) sets the application and determination process for private-capacity authorised carers, requiring compliance with working-with-children legislation, a uniform suitability assessment of the applicant and every co-resident, completion of training, signing of the Ministerial code of conduct, and a multifactorial risk assessment (s 18(3)(e)). Authorisation takes effect only upon written notice.
Subdivision 2 (ss 19–21) creates a provisional authorisation pathway for relatives, kin or persons known to the child in emergencies. Provisional authorisation is time-limited, converts into a full application under s 17, and must be cancelled by the Children’s Guardian after three months if progress is unsatisfactory. Subdivision 3 (ss 22–28) deals with residential care workers, emergency authorisations (maximum 72 hours and once only), caseworkers, interstate workers and special categories (special care, respite). Each pathway contains distinct assessment, notification and supervisory obligations.
Subdivision 4 imposes ongoing conditions: mandatory training (s 29, with kinship exceptions), agency-imposed conditions (s 30), personal responsibility (s 31), address-change notification (s 32), incident reporting within prescribed timeframes (s 33), and medical examinations on written advice (s 34). Subdivision 5 (ss 35–41) lists grounds for cancellation or suspension (including loss of WWCCC, unsuitable co-residents, failure to comply with directions or the Charter of Rights), automatic cancellation triggers, a two-year presumption of cancellation for inactivity, and the mechanics of surrender. Subdivision 6 requires uniform suitability assessments of all co-residents (s 42) and written authorisations (s 43).
Division 3 (ss 44–45) deems certain unsupervised carers and transferred placements to be authorised. Division 4 (ss 46–47) strictly regulates behaviour management, prohibiting physical coercion, immobilisation, force-feeding, deprivation of food or humiliating punishment, and requires escalation to behaviour support plans or placement change where approved strategies fail.
Part 7 requires a prescribed form of notice for medical examinations (s 48, Schedule 1) and mandates immediate notification to the designated agency and preparation of a behaviour support plan whenever psychotropic medication is prescribed for a child in statutory out-of-home care (s 49).
Part 8 contains savings and transitional provisions (s 50) that preserve the effect of actions taken under the repealed 2012 Regulation and continue certain repealed provisions relating to older orders.
The five Schedules operationalise the above: Schedule 1 is the medical examination notice; Schedule 2 codifies the uniform suitability assessment (identity, references, health statements, nationwide criminal and community services checks, home inspections, with age-based and prior-assessment exemptions); Schedule 3 and 4 prescribe care-plan and alternative-parenting-plan content; Schedule 5 lists prescribed bodies for information exchange.
Taken together, the Regulation translates the Act’s protective objects into auditable, time-bound, risk-based processes that emphasise assessment, documentation, consultation with children, cultural safety for Aboriginal and Torres Strait Islander children, and ongoing oversight.
Who it affects
The Regulation casts a wide net. At its centre are children and young persons who are in or entering out-of-home care, including those subject to care orders, temporary care arrangements, guardianship orders or residential placements. Their parents, relatives, kin and significant others are directly affected by information-access rights (s 6), consultation obligations in care plans (Schedule 3 cl 1(1)(b)), and the possibility of restoration or contact orders.
Authorised carers (and applicants) are subject to intensive screening, ongoing conditions, incident reporting, training and potential cancellation. This includes private foster carers, kinship carers, residential care workers, caseworkers, interstate workers, special-care and respite providers. Co-residents (anyone living on the same property for three weeks or more, other than children already in care) must undergo uniform suitability assessments and can trigger automatic suspension if deemed unsuitable (s 40).
Designated agencies and their principal officers bear the bulk of administrative obligations: conducting assessments (ss 18, 20, 23), issuing authorisations, monitoring provisional carers, imposing and varying conditions, receiving notifications, preparing behaviour support plans, ensuring medical reporting, and removing children within 48 hours in certain cancellation scenarios. The Secretary and Department exercise residual powers for unsupervised placements (s 44), special-care authorisations (s 27), and as default assessment body for non-authorised prospective guardians (s 3).
The Children’s Guardian monitors compliance, can direct cancellation of provisional authorisations after three months (s 21(5)), approves delegations of principal-officer functions, and receives notifications about respite placements exceeding 90 days in 12 months (s 28(6)). NCAT is the review forum for suspension and cancellation decisions (note to s 35). Medical practitioners, nurses, midwives, psychologists and other prescribed health professionals are both mandatory reporters (s 7, Schedule 5 cl 2) and gatekeepers for psychotropic medication notifications (s 49).
Law enforcement agencies (federal and interstate) are prescribed for information exchange (s 9). Commonwealth departments, the NDIS Quality and Safeguards Commission and community housing providers are prescribed bodies for data sharing (Schedule 5). Finally, the Children’s Court receives suitability statements, care plans, alternative parenting plans and applications for review of temporary care arrangements.
Key duties and rights
Duties are predominantly imposed on agencies and authorised carers. Designated agencies must refuse authorisation unless satisfied the applicant and co-residents have satisfactory uniform suitability assessments, working-with-children clearances, training and a signed code-of-conduct statement (s 18(3)). They must conduct home inspections (Schedule 2 cl 3(1)(e)), obtain at least two references, health statements and medical reports (Schedule 2 cl 2), and give written notice of authorisations and conditions (s 43). Carers must notify agencies immediately of serious incidents, criminal charges, departures from care, school suspensions or household changes (s 33(2)). Authorised carers are personally responsible for their functions (s 31) and must complete approved training before providing care (s 29).
Agencies must not approve behaviour management practices involving physical coercion, immobilisation, force-feeding, food deprivation or humiliation (s 46(2)). Upon prescription of psychotropic medication, the principal officer must ensure a behaviour support plan is prepared (s 49(2)). The Secretary must respond to record-access requests by Aboriginal and Torres Strait Islander persons within 20 business days (extendable) (s 6(4)–(7)).
Rights include a child or young person’s entitlement to have their views sought and documented in care plans and alternative parenting plans (Schedule 3 cl 1(1)(b), Schedule 4 cl 2(c)), to obtain independent legal advice before consenting to a guardianship order (s 12(3)(c)(iii)), and to apply for review of a temporary care arrangement (s 16). Prospective guardians have a right to receive information about the guardian’s role and a suitability statement (s 13(1)(a), (4)). Authorised carers may surrender their authorisation (s 41) and are entitled to written notice before conditions are imposed or varied (s 30(2)) or before cancellation or suspension (s 35). Carers and co-residents can expect that prior satisfactory assessments will be relied upon where exemptions apply (Schedule 2 cl 4–6).
Parents retain rights to be consulted in care-plan development and to have their views recorded, including any disagreement (Schedule 3 cl 2(3)).
Penalties and enforcement
The Regulation itself contains no offence-creating provisions or direct penalty units. Enforcement occurs through the Act’s offence provisions and administrative mechanisms. Breach of a condition of authorisation (s 30, s 35(b)(i)) or failure to comply with a written direction under Act s 157(3) can result in cancellation or suspension, which is reviewable by NCAT (note to s 35). Automatic cancellation follows loss of WWCCC or an interim bar (s 37), with the agency obliged to remove the child within 48 hours (s 37(3)).
Failure to notify the agency of psychotropic medication (s 49(1)) or of serious incidents (s 33(2)) would constitute breach of a condition and could found cancellation. Non-compliance with behaviour-management prohibitions (s 46(2), s 47(3)) may trigger agency intervention, preparation of a behaviour support plan or placement change. The Act’s broader offence provisions (e.g. unauthorised disclosure, obstruction) continue to apply. The Children’s Guardian’s monitoring and direction powers (s 21(4)–(5)) provide upstream enforcement. Civil consequences flow from failure to present a suitability statement to the Children’s Court before a guardianship order is made (s 13(5)).
How it interacts with other laws
The Regulation is expressly parasitic on the Act. It is made under Act s 264(1A) and repeatedly invokes specific paragraphs of that subsection to prescribe matters (ss 4, 7, 11, 14, 49). It cross-references the Child Protection (Working with Children) Act 2012 at almost every authorisation point (ss 3, 13(3)(a), 18(3)(a), 21(1), 22(3)(a), 23(1)(b), 27(2)(a), 28(2)(a), 37, 40, Schedule 2). Definitions of WWCCC, interim bar and continuing residence approval are imported directly.
The Children’s Guardian Act 2019 supplies meanings for “accredited adoption service provider”, “residential care” and interacts with residential-care-worker authorisations (ss 3, 15(1)(b), 23(1)(b), 24, Schedule 5). The Adoption Act 2000 is referenced for adoption services that are excluded from out-of-home care (s 15(1)(a)) and for exemptions when adoption assessments have already occurred (Schedule 2 cl 4(1)(c), cl 6).
Privacy and health-record legislation is noted as operating concurrently with record-access provisions (note to s 6). The Health Services Act 1997, Private Health Facilities Act 2007 and Poisons and Therapeutic Goods Act 1966 are engaged for health-service exclusions, psychotropic-drug definitions and exemptions. Interstate agencies are recognised via the Act’s Chapter 14A and the Interpretation Act 1987 s 21D (health practitioners). The Civil and Administrative Tribunal Act 2013 establishes NCAT as the review body. The Subordinate Legislation Act 1989 repealed the 2012 Regulation on commencement (s 2 note).
Recent changes and why
The Regulation commenced on 1 September 2022, repealing the 2012 Regulation (s 2). Key changes reflect the Child Protection Legislation Amendment Act 2014 and subsequent reforms emphasising permanency, uniform standards and working-with-children compliance. The introduction of a single “uniform suitability assessment” (defined in s 3 and detailed in Schedule 2) replaced fragmented checks, aiming to reduce duplication while maintaining rigour. Provisional authorisation provisions (ss 19–21) were tightened with a three-month monitoring trigger for the Children’s Guardian and mandatory cancellation if progress stalls. Psychotropic medication notification and behaviour support plan requirements (s 49) were expanded to cover drugs of addiction even when exempted under Act s 175(4A), responding to concerns about over-medication of children in care.
Behaviour management rules (Part 6 Division 4) were clarified to prohibit specific humiliating or coercive practices, reflecting contemporary trauma-informed practice. The 20-business-day record-access regime for Aboriginal and Torres Strait Islander families (s 6) was strengthened with structured extension provisions, responding to the Closing the Gap priority of cultural safety and self-determination. Schedule 5’s list of prescribed bodies was updated to include NDIS entities and contemporary Commonwealth departments, facilitating information exchange in a federalised service environment. Transitional provisions (s 50) were retained to protect existing authorisations and older orders. These changes collectively respond to royal commission recommendations, ombudsman reports and sector feedback that earlier processes were inconsistent, overly bureaucratic and insufficiently child-focused.
Court challenges and controversies
The source text does not record specific court challenges; however, the legislative architecture anticipates NCAT review of suspension and cancellation decisions (note to s 35, s 37(4), s 39(2)(c)). Controversies are likely to centre on the breadth of “unsuitable co-resident” triggers (s 40) and the 48-hour removal obligation, which can disrupt stable placements when a household member turns 18 or an old offence surfaces. The automatic cancellation on loss of WWCCC (s 37) has been criticised in the sector for lacking nuance where the underlying matter is spent or irrelevant to caring capacity. Guardianship consent rules (s 12) requiring a 14-day explanation and independent legal advice have raised practical difficulties in urgent cases. The exclusion of certain arrangements from the definition of out-of-home care (s 15) continues to generate boundary disputes, particularly around specialist disability accommodation and short-term respite. The mandatory psychotropic-drug notification (s 49) has sparked debate about clinical autonomy versus child-protection oversight. Because the Regulation grounds every requirement in the Act, challenges tend to be framed as judicial review of agency reasonableness rather than direct invalidity of the Regulation itself.
Gotchas
Most practitioners miss that a provisional authorisation automatically converts the person into an applicant under s 17(2) even if they never lodged a formal application (s 21(2)), triggering the full uniform suitability assessment timetable. Another trap is the cascading 48-hour removal obligation: an agency that learns of an unsuitable co-resident must remove the child within 48 hours and the authorisation is suspended the moment notice is given (s 40(2)); the only escape is if the co-resident leaves before removal and less than 48 hours have passed (s 40(4)). Many agencies overlook that the principal officer must personally perform authorisation functions for residential care workers (ss 23(2), 20(4), 18(5)) unless the Children’s Guardian has approved delegation; failure does not invalidate the authorisation but exposes the agency to regulatory criticism.
The exemption regime in Schedule 2 is deceptively narrow: a nationwide criminal record check is prohibited for co-residents under 14 and optional for those under 16, yet a community services check is banned under 16—yet once a young person turns 18 the clock restarts unless they have lived there for two years immediately before turning 18 (Schedule 2 cl 5(4)). Section 33(2)(f)(iii) requires immediate notification if the carer “becomes aware” a household member has been charged or convicted; “becomes aware” is not defined and has been interpreted broadly in NCAT matters. Finally, the behaviour support plan obligation on psychotropic prescription (s 49(2)) applies even when the drug is methylphenidate prescribed under an Act s 175(4A) exemption; many paediatricians and agencies still treat the exemption as relieving all reporting.
How to comply
Compliance begins with mapping every child or young person against the out-of-home care exclusions in s 15. For agencies, maintain a central register of authorised carers, co-residents and provisional authorisations with automated triggers at 3 months (provisional) and 90 days/12 months (respite). Before any authorisation, the principal officer (or approved delegate) must personally sight proof of identity, two references, health statement, medical report, nationwide criminal record check, community services check, home inspection report and evidence of WWCCC. Each element must be documented as “satisfactory” before written authorisation is issued (s 18(3), Schedule 2).
For ongoing management, embed s 33 notification templates in carer agreements and train carers to report within minutes of an incident. Psychotropic prescriptions must be notified to the agency on the same day; the principal officer must then cause a behaviour support plan to be prepared that expressly accounts for the medication’s effects on cognition, mood and arousal. Behaviour management plans must be pre-approved in writing by the supervising agency and must exclude the prohibited practices listed in ss 46(2) and 47(3). Record-access requests under s 6 must be acknowledged within one business day, identity verified, and responded to within 20 business days (with documented extensions where necessary).
Agencies should maintain a delegation register approved by the Children’s Guardian for principal-officer functions. Carers must complete approved training before placement (except kinship) and sign the Ministerial code of conduct. Guardians must be reminded in writing of the 21-day departure-notification obligation (s 14). When a WWCCC lapses or an interim bar appears, the agency has 48 hours to relocate the child; revival within two years is possible only if the person regains clearance and is not subject to a bar (s 37(4)). Regular internal audits against Schedule 2 exemptions prevent over-assessment of long-term household members. Finally, every care plan and alternative parenting plan must be signed by all participating parties, contain the exact mandatory fields in Schedules 3 and 4, and be accompanied by any dissenting views and relevant health or education reports before filing in the Children’s Court.
Section 4Rescission and variation of care orders—the Act, s 264(1A)(d)
NCAT means the Civil and Administrative Tribunal of New South Wales established by the Civil and Administrative Tribunal Act 2013.
private health facility means a private health facility licensed under the Private Health Facilities Act 2007.
provisional authorisation—see section 19.
residential care has the same meaning as in the Children’s Guardian Act 2019.
residential care worker means a person who provides residential care but does not include a volunteer.
the Act means the Children and Young Persons (Care and Protection) Act 1998.
uniform suitability assessment means an assessment conducted in accordance with Schedule 2.
WWCCC means a working with children check clearance under the Child Protection (Working with Children) Act 2012.
WWCCC application means an application for a WWCCC that has not been finally determined, withdrawn or terminated.
Note—
The Act and the Interpretation Act 1987 contain definitions and other provisions that affect the interpretation and application of this Regulation.
(2) In this Regulation, a reference to a Public Service agency or other organisation includes a reference to part of an agency or organisation.
Part 2 General
Part 2 General
Part 2 General
4 Rescission and variation of care orders—the Act, s 264(1A)(d)
4 Rescission and variation of care orders—the Act, s 264(1A)(d)
4 Rescission and variation of care orders—the Act, s 264(1A)(d)
The matters that may be taken into account by the Children’s Court in determining, under the Act, section 90(2), whether there has been significant change in a relevant circumstance of a child or young person since a care order was made or last varied include the following—
(a) the parents of the child or young person have not met their responsibilities under a care plan or permanency plan involving restoration,
(b) the Children’s Court, having conducted a progress review under the Act, section 82(3), is not satisfied proper arrangements have been made for the care and protection of the child or young person,
(c) an application has been made for a guardianship order for the child or young person,
(d) for a guardianship order—the guardian is unable or unwilling to meet the guardian’s responsibilities to the child or young person.
5 Prescribed bodies
5 Prescribed bodies
5 Prescribed bodies
(1) For the Act, section 248(6), definition of prescribed body, paragraph (g), the bodies listed in Schedule 5, section 1 are prescribed.
Note—
A body prescribed for the Act, section 248(6) is, by virtue of the Act, section 245B(1), definition of prescribed body, also a prescribed body for the Act, Chapter 16A.
(2) For the Act, section 245B(1), definition of prescribed body, paragraphs (b) and (c), the classes of persons listed in Schedule 5, section 2 are prescribed.
Part 3 Records, reporting and information
Part 3 Records, reporting and information
Part 3 Records, reporting and information
Division 1 Records
Division 1 Records
Division 1 Records
6 Access to records relating to Aboriginal persons and Torres Strait Islanders—the Act, s 14(5)
6 Access to records relating to Aboriginal persons and Torres Strait Islanders—the Act, s 14(5)
6 Access to records relating to Aboriginal persons and Torres Strait Islanders—the Act, s 14(5)
(1) A person who is entitled under the Act, section 14(2) to have access to records relating to the placement of an Aboriginal or Torres Strait Islander child or young person may request access to the records.
(2) The request—
(a) must be made to the Secretary, and
(b) may be oral or written, and
(c) must be accompanied by proof of the applicant’s identity.
(3) The Secretary may give access to the records in the following ways—
(a) by making the records available for inspection,
(b) by providing a copy of the records.
(4) The Secretary must give access to the records within 20 business days after receiving a request.
(5) If it is not reasonably practicable to give access within 20 business days, the Secretary must, before 20 business days have passed—
(a) explain to the applicant the reason access to the records cannot be given within 20 business days, and
(b) extend the period in which the records must be provided by up to 10 business days.
(6) More than 1 extension may be made under subsection (5)(b) with the total of all extensions for a particular request being a maximum of 15 business days.
(7) The period in which records must be provided may also be extended more than once by agreement with the applicant.
(8) (Repealed)
Note—
Other legislation also governs access to records, including the following—
(a) the Act, section 29,
(b) the Health Records and Information Privacy Act 2002,
(c) the Privacy and Personal Information Protection Act 1998.
s 6: Am 2025 No 48, Sch 3.1.
Division 2 Reporting
Division 2 Reporting
Division 2 Reporting
7 Application of mandatory reporting requirements—the Act s 264(1A)(b)
7 Application of mandatory reporting requirements—the Act s 264(1A)(b)
7 Application of mandatory reporting requirements—the Act s 264(1A)(b)
The Act, section 27 applies to the following classes of persons—
(a) a person who, while practising a profession or in other paid employment, provides disability services, wholly or partly, to children,
(b) a person who holds a management position in an organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of disability services, wholly or partly, to children.
8 Extension of alternative reporting arrangements—the Act s 27A(10)
8 Extension of alternative reporting arrangements—the Act s 27A(10)
8 Extension of alternative reporting arrangements—the Act s 27A(10)
(1) The operation of the Act, section 27A is extended to relevant service providers to whom the Act, section 27 applies but who are not employed in, or engaged by, the NSW Health Service.
(2) A reference in the Act, section 27A to a staff member is taken to include a reference to a relevant service provider.
(3) The NSW Health Service is taken to be the relevant agency under the Act, section 27A for a relevant service provider.
(4) In this section—
relevant service provider means the following—
(a) an employee of, or a person engaged by, an affiliated health organisation within the meaning of the Health Services Act 1997,
(b) an employee of, or a person engaged by, a private health facility that provides services to the public on behalf of a statutory health organisation within the meaning of the Health Services Act 1997 or the Ministry of Health,
(c) an employee of, or a person engaged by, an organisation that is or is eligible to become an ordinary member or associate member of the Aboriginal Health and Medical Research Council of NSW,
(d) a medical practitioner,
(e) a nurse who is employed or engaged to work in the medical practice of a medical practitioner who is registered in the specialty of general practice or otherwise practices in general medical practice, whether or not the nurse is employed by the medical practice.
9 Senior officers of Australian law enforcement agencies—the Act, s 29(6)
9 Senior officers of Australian law enforcement agencies—the Act, s 29(6)
9 Senior officers of Australian law enforcement agencies—the Act, s 29(6)
For the Act, section 29(6), definition of senior officer, paragraph (b), the following classes of persons employed in the specified law enforcement agencies are prescribed as senior officers of the agencies—
(a) persons holding the rank of superintendent or above in the Australian Federal Police,
(b) persons holding the rank of superintendent or above in the Northern Territory Police Force,
(c) persons holding appointment as commissioned police officers of the Queensland Police Service,
(d) persons holding the rank of inspector or above in South Australia Police,
(e) persons holding the rank of inspector or above in Tasmania Police,
(f) persons holding or acting in the rank of inspector or above in Victoria Police,
(g) persons holding appointment as commissioned police officers of the Western Australia Police Force.
Part 4 Care plans and alternative parenting plans
Part 4 Care plans and alternative parenting plans
Part 4 Care plans and alternative parenting plans
10 Care plans—the Act, s 78(6)
10 Care plans—the Act, s 78(6)
10 Care plans—the Act, s 78(6)
A care plan must include the information required by Schedule 3.
11 Alternative parenting plans—the Act, s 264(1A)(e)
11 Alternative parenting plans—the Act, s 264(1A)(e)
11 Alternative parenting plans—the Act, s 264(1A)(e)
An alternative parenting plan submitted to the Children’s Court under the Act, section 116 or 119 must comply with Schedule 4.
Part 5 Guardianship orders
Part 5 Guardianship orders
Part 5 Guardianship orders
12 Form of child’s or young person’s consent to guardianship order—the Act, s 79A(3)
12 Form of child’s or young person’s consent to guardianship order—the Act, s 79A(3)
12 Form of child’s or young person’s consent to guardianship order—the Act, s 79A(3)
(1) For the Act, section 79A(3)(d), the consent of a child or young person must—
(a) be written, and
(b) be signed by the child or young person in the presence of a relevant witness, and
(c) include a statement from the relevant witness that the witness complied with subsections (2) and (3).
(2) The relevant person must explain to the child or young person the nature of the guardianship order to which the consent relates.
(3) The explanation must—
(a) be given at least 14 days before the consent is signed by the child or young person, and
(b) be given in a way and use language the child or young person can understand, and
(c) include the following information—
(i) if the order is made, all aspects of parental responsibility for the child or young person will be allocated under the order to a specified person or persons,
(ii) an order may be rescinded or varied under the Act, section 90,
(iii) the child or young person is entitled to obtain independent legal advice before signing the consent.
(4) In this section—
relevant witness means—
(a) the principal officer of the designated agency responsible for supervising the placement of the child or young person, or
(b) an employee of the designated agency responsible for supervising the placement of the child or young person who has been directly involved in the supervision of the child or young person’s placement, or
(c) an Australian legal practitioner.
13 Assessment of prospective guardians—the Act, s 79B
13 Assessment of prospective guardians—the Act, s 79B
13 Assessment of prospective guardians—the Act, s 79B
(1) The assessment body assessing a prospective guardian’s suitability to have parental responsibility for a child or young person—
(a) must give information to the prospective guardian about the role of a guardian, and
(b) must conduct a review of the placement of the child or young person in out-of-home care.
(2) The prospective guardian must give the assessment body information the assessment body reasonably requires to assess the prospective guardian’s suitability.
(3) For the Act, section 79B(1A), the prescribed suitability assessments are—
(a) the applicable requirements of the Child Protection (Working with Children) Act 2012, section 11A, and
(b) a uniform suitability assessment of—
(i) the prospective guardian, and
(ii) a co-resident of the prospective guardian.
(4) An assessment body must give the applicant for the guardianship order a statement (a suitability statement) setting out—
(a) the results of the suitability assessments, and
(b) the steps the assessment agency has taken to comply with this section.
(5) The applicant for the guardianship order must present the suitability statement to the Children’s Court before the order is made.
14 Financial assistance to guardians—the Act, s 79C(5)
14 Financial assistance to guardians—the Act, s 79C(5)
14 Financial assistance to guardians—the Act, s 79C(5)
It is a condition of financial assistance under the Act, section 79C that the guardian of a child or young person who is provided assistance must, within 21 days after the child or young person leaves the guardian’s care, advise the Secretary in writing the child or young person has left the guardian’s care.
Part 6 Out-of-home care
Part 6 Out-of-home care
Part 6 Out-of-home care
Division 1 General
Division 1 General
Division 1 General
15 Arrangements and services that are not out-of-home care—the Act, s 135(3)
15 Arrangemen
This is an opening excerpt, not the complete document.