Children and Young Persons (Savings and Transitional) Regulation 2000

The Regulation uses a small set of legal devices to accomplish transitional continuity. The principal concepts are defined in cl 3, and the text repeatedly refers to the new Act, the old Act, the principal Regulation (the Children and Young Persons (Care and Protection) Regulation 2000) and transitional designated agency or transitional authorisations created by the Regulation.

Key concept definitions

• "the new Act" and "the old Act" are defined in cl 3. The instrument operates by treating things done, commenced or extant under the old Act in specified ways under the new Act.
• "transitional designated agency" denotes a designated agency accredited by force of clause 22A or 22AA (cl 3).

Legal techniques used

• Savings provisions: clauses preserving the legal effect of proceedings, notices, warrants, orders, and continuations of care (for example, cl 5 reserves application of Interpretation Act s 30; cl 16 preserves existing court proceedings; cl 17 preserves existing orders, undertakings and requirements).
• Deeming provisions: several clauses take an existing state of affairs under the old Act and declare it to be a corresponding state under the new Act. Examples include deemed temporary care arrangements (cl 7(1)), deemed custody aspects (cl 8), and deemed authorisation of carers (cl 22D, 22E).
• Mapping provisions: cl 22(1) contains a two-column table that maps specific sections and orders under the new Act to corresponding sections and orders under the old Act. This facilitates applying residual old Act provisions to certain new Act orders.
• Time-limited transition windows: clauses set explicit end-dates for transitional arrangements, for example cl 22A(3)(d) (transition period ends 14 July 2013) and cl 22AA(2)(a) (accreditation of Community Services ceases 31 July 2015, subject to later modification by the Children’s Guardian).
• Procedural constraints on regulatory action: when imposing conditions or taking action against transitional accreditations, the Children’s Guardian is required to give written notice containing particulars and at least 28 days for response, and may only impose certain conditions on stated grounds (see cl 22CB(2)-(4)).
• Devolution of authorisation provenance: cl 22D(3) specifies which entity is taken to have authorised a person as an authorised carer, depending on the placement source, e.g., private fostering agency, licensed residential centre, or the Department.

Narrowly stated objects and powers

• Clause 22B(1) expressly sets the object of that clause: enable Community Services to progressively satisfy accreditation criteria and be accredited. That clause then prescribes minimum standards or criteria determined by the Minister on the recommendation of the Children’s Guardian, and gives the Guardian power to keep dates under review and to require information (cl 22B(2)-(4)). The Guardian must report non-compliance to the Minister (cl 22B(7)).

Operational effects conveyed by concepts

• Continuation of proceedings, and preservation of rights of appeal: a pending Children’s Court or District Court proceeding commenced under the old Act and not completed before repeal is to be continued under the old Act (cl 16). Section 81 of the old Act continues to apply to orders made before repeal (cl 18), preserving appeal rights.
• Preservation of enforcement responses: where conduct was subject to enforcement under specified old Act provisions (for example section 79 or 84), the failure or breach may be dealt with under section 73(5) of the new Act whether it occurred before or after repeal (cl 20).
• Specific transitional protections for carers and payments: payments or allowances made under particular old Act provisions are taken to be grants of financial assistance under the new Act (cl 22H), and persons holding fostering authority are taken to be authorised carers, often with time or child-specific limits (cl 22E).

These concepts structure the shift from the old statutory regime to the new, by preserving continuities, defining who is treated as accredited or authorised during transition, and by allocating defined roles and limited powers to the Children’s Guardian and the Minister in managing the accreditation timetable.

This Regulation primarily affects four groups: children and young persons to whom orders or processes under the old Act relate, entities providing or arranging out-of-home care immediately prior to the key transition date, carers who were authorised under the old Act, and administrative decision-makers such as the Children’s Guardian and the Director-General or the Minister.

Children and young persons

• The Regulation preserves and transitions temporary care arrangements, custody arrangements, wards and protected persons, and investigations and notifications made under the old Act to the framework of the new Act. For example, temporary care arrangements in force immediately before repeal are taken to be temporary care arrangements under section 151 of the new Act and continue for the remainder of their period (cl 7(1)). A child who was a ward under the old Act is taken to be under parental responsibility of the Minister (cl 9). Notifications of abuse made under section 22 of the old Act continue to be treated as reports under the new Act (cl 10).

Designated agencies, transitional designated agencies and Community Services

• Bodies and organisations that were providing or arranging out-of-home care immediately before 15 July 2003 are captured by cl 22A. This includes, by explicit list, government departments, licensed residential child care centres licensed under the old Act, certain centres funded through the Department’s Substitute Care Program, authorised private fostering agencies, and other bodies funded to provide out-of-home care. Such bodies are taken to be accredited as designated agencies during a transition period, but only in respect of the kind of out-of-home care they were providing immediately before 15 July 2003 (cl 22A(2)).
• Community Services (the branch of the Department of Family and Community Services) is treated separately under cl 22AA. It is taken to be accredited as a designated agency by virtue of that clause (22AA(1)) until 31 July 2015 or another date published by the Children’s Guardian, unless its formal accreditation decision takes effect earlier, the application is withdrawn or accreditation is cancelled (22AA(2)-(2A)). Community Services is also subject to progressive achievement requirements under cl 22B.

Carers and former fostering authority holders

• Persons who had care of a child placed by certain private fostering agencies or at licensed residential child care centres immediately before commencement are taken to be authorised carers authorised by a designated agency under the new Act (cl 22D(1)-(3)). Persons who held a fostering authority under section 43 of the old Act are taken to be authorised carers until specified triggering events. If a fostering authority nominated a particular child, that authorisation ceases when the child leaves the carer, after two years, or when the child reaches 18, whichever occurs first (cl 22E(1)-(4)).

Regulatory bodies and officials

• The Children’s Guardian is explicitly given oversight and procedural powers in multiple clauses: determining accreditation dates for Community Services (cl 22B(2)-(3)), requiring information to assess compliance (cl 22B(4)), imposing conditions on transitional accreditations subject to procedural limits (cl 22CB), taking action in relation to accreditation under clause 40 of the principal Regulation but with some restricted grounds for suspension or cancellation (cl 22CD). The Children’s Guardian must also publish certain orders on the NSW legislation website to set accreditation cessation dates for Community Services (cl 22AA(2)).
• The Director-General and the Minister are referenced as those with care responsibility under particular transitional deemings. For example, a person taken to have had the care of a child immediately before repeal is taken to have care under the new Act (cl 12), and children taken to be under care responsibility of the Director-General are declared in cl 13.

Other participants

• Courts and tribunals: the Children’s Court and District Court continue to conduct existing proceedings under the old Act (cl 16). Clause 27 confirms that certain reviews of decisions of the Children’s Guardian by the Administrative Decisions Tribunal (ADT), as introduced by the amending Regulation, apply to conditions imposed before the commencement of that provision.
• Private organisations that applied for voluntary accreditation between 1 July 2002 and 14 July 2003 are taken to have applied for accreditation as a designated agency (cl 22C(4)).

In short, the Regulation affects every layer of the child protection system as it moved from the old statutory framework to the new: the children themselves and their legal statuses; carers, including those previously authorised under the old Act; providers and fund-holders delivering out-of-home care; administrative regulators, principally the Children’s Guardian and the Minister; and courts and tribunals dealing with pending proceedings and appeals.

The Regulation does not create broad new private rights of action or new substantive offences. Its core effect is to preserve existing rights, ensure continuity of duties and allocate new administrative duties for transitional management. The key duties and rights derive from the deemings, mappings and procedural obligations contained in its clauses.

Rights preserved and continued

• Continuation of proceedings and appeals: proceedings in the Children’s Court or District Court commenced under the old Act and not completed are to be continued under the old Act (cl 16). Section 81 of the old Act, preserving the right of appeal to the District Court in specified cases, continues to apply to orders made before repeal or made pursuant to cl 17 (cl 18).
• Existing orders and undertakings remain in force: an order, requirement or direction of the Children’s Court, or an undertaking under the old Act that was in force immediately before repeal continues according to its terms except as provided by this Regulation (cl 17).
• Existing notifications and investigations are brought into the new regime: notifications under section 22 of the old Act are taken to be reports under the new Act (cl 10(2)), and incomplete investigations under section 22(7) of the old Act are taken to be investigations under section 30 of the new Act (cl 10(3)).

Administrative duties created or clarified

• Transitional accreditation duties: transitional designated agencies are treated as accredited during a transition period (cl 22A(2)), but they remain subject to the principal Regulation only as provided by Division 3A (cl 22A(5)). This places a duty on such bodies to seek formal accreditation where relevant and to respond to any action taken under the principal Regulation as it applies via transitional clauses (cl 22C).
• Progressive achievement duty for Community Services: Community Services must meet the minimum standards or other criteria determined by the Minister on the recommendation of the Children’s Guardian by dates set by the Children’s Guardian (cl 22B(2)). The Children’s Guardian is authorised to keep those dates under review, to change them, and to require further information reasonably necessary to assess compliance (cll 22B(3)-(4)). The Guardian must report any failure by Community Services to comply to the Minister (cl 22B(7)).
• Procedural duty when imposing conditions: before imposing a condition on the accreditation of a transitional designated agency, the Children’s Guardian must have reasonable grounds and must give written notice setting out particulars, request address within a specified period of at least 28 days, specify that a condition may be imposed, and inform the agency of a right to notify the Guardian of contentions within 28 days (cl 22CB(2)-(3)). Any imposed condition under the relevant provision must be substantially the same as that notified (cl 22CB(4)). The Regulation also limits the types of conditions that may be imposed, for instance excluding some conditions relating solely to voluntary out-of-home care from the procedural constraints in cl 22CB(6).
• Obligations regarding transfer of accreditations: an accreditation transferred under clause 37B of the principal Regulation will result in the transferee being taken to be a transitional designated agency, with the transferor’s transition period applying to the transferee (cl 22CA(2)). This creates duties on both transferor and transferee to respect the transition period’s remaining regulatory constraints.

Enforcement rights and routes

• Children’s Guardian’s enforcement powers are preserved but constrained. The Guardian may take action under clause 40 of the principal Regulation in relation to an accreditation of a transitional designated agency, subject to the limits in cl 22CD(1)-(4). Specifically, the Guardian may not suspend or cancel on the grounds set out in clause 40(2)(f) or (g) of the principal Regulation (cl 22CD(2)). If the accreditation is suspended, the transition period is not extended by the suspension (cl 22CD(3)), and the accreditation may not be shortened under clause 40 (cl 22CD(4)).
• Administrative review: clause 27 directs that clause 6B(a)(i) of the principal Regulation as inserted by the relevant amending regulation applies to a condition imposed before commencement; this connects decisions of the Children’s Guardian to review channels, specifically the Administrative Decisions Tribunal, for matters to which that clause relates.

Rights to financial assistance or continuity of payments

• Persons receiving allowances or payments under specified provisions of the old Act are taken to have been granted financial assistance under section 161 of the new Act (cl 22H(1)-(2)). This preserves the recipient’s entitlement under the new Act framework without requiring a new administrative grant to be made.

Practical limitations and temporal conditions

• Some deemed authorisations and accreditations are time-limited. For example, the transition period for transitional designated agencies ends on specified dates or events (cl 22A(3)), and a person holding fostering authority who is taken to be an authorised carer may cease to be an authorised carer when the child leaves, 2 years after commencement, or when the child reaches 18 (cl 22E(3)). Community Services’ deemed accreditation under cl 22AA ceases on 31 July 2015 unless earlier superseded (cl 22AA(2)).

In short, the Regulation preserves procedural rights accrued under the old Act and creates a defined set of administrative duties and limited enforcement powers to manage the transition to the regime of the new Act and the principal Regulation.

The Regulation itself contains few express penal provisions. It does not create new offences. Instead, it preserves and redirects enforcement and remedial mechanisms from the old Act into the new framework, and it grants the Children’s Guardian limited powers to impose conditions, to take action against accreditations, and to require information. The enforcement picture therefore consists of (A) continuation of existing enforcement options under the new Act and (B) bespoke transitional enforcement mechanics controlled by the Children’s Guardian, both subject to statutory constraints.

Continuation of enforcement mechanisms

• Clause 20 provides a direct continuity rule: a failure or breach in relation to any matter to which a provision of section 79 or 84 of the old Act applied immediately before repeal may be dealt with under section 73(5) of the new Act, whether the failure or breach occurred before or after the repeal. Section 73(5) of the new Act is the hook for enforcement responses to breaches of undertakings and related matters originating under the old Act.

Children’s Guardian’s powers and limits

• The Children’s Guardian may impose conditions on accreditations of transitional designated agencies in accordance with the principal Regulation, except as modified by cl 22CB (cl 22CB(1)). Before imposing a condition pursuant to clause 39(2) of the principal Regulation on a transitional designated agency, the Guardian must have reasonable grounds to be concerned about acts or omissions that may adversely affect child safety, give written notice detailing the concern and allow an at least 28 day period for the agency to address the concern, and consider any written response before imposing a condition (cl 22CB(2)-(4)). Any condition imposed must substantially match the condition specified in the prior notice (cl 22CB(4)). These procedural steps restrict the speed and basis on which conditions can be imposed, although they do not eliminate the Guardian’s power.
• Clause 22CB(5) and (6) limit the application of particular condition powers: certain procedural rules do not apply to conditions that relate solely to voluntary out-of-home care (cl 22CB(6)). Clause 22CB(7) carries forward conditions imposed on predecessor departments to newly named departments (Community Services or Ageing, Disability and Home Care) for continuity.
• Clause 22CD(1) permits the Guardian to take action under clause 40 of the principal Regulation in relation to transitional accreditations, but cl 22CD(2) expressly prevents suspension or cancellation of such accreditation on the grounds specified in clause 40(2)(f) or (g) of the principal Regulation. The Regulation does not reproduce clause 40(2)(f) or (g) so readers must consult the principal Regulation for the substance of those prohibited grounds. Clause 22CD(3) clarifies that a suspension does not extend the transition period, and cl 22CD(4) states the accreditation may not be shortened under clause 40.

Administrative review

• Part 5, cl 27 confirms the application of clause 6B(a)(i) of the principal Regulation as inserted by the 2008 amending regulation to conditions imposed before that provision commenced. That clause connects the Children’s Guardian’s conditions to review by the Administrative Decisions Tribunal, providing an external review mechanism for certain decisions. The Regulation therefore contemplates administrative review avenues for accrediting decisions or conditions.

Courts and continuation of judicial enforcement

• Existing court orders and proceedings under the old Act are preserved and continue under the legal framework existing immediately before repeal (cl 16, cl 17). The right of appeal under section 81 of the old Act is preserved for relevant orders (cl 18). The Children’s Court retains jurisdiction to rescind or vary orders made under the old Act by using section 90 of the new Act as if they were care orders (cl 21).

Practical enforcement consequences

• The Regulation channels many enforcement matters into the new Act’s mechanisms and the principal Regulation, while imposing procedural safeguards around transitional accreditation actions. The Children’s Guardian has power, but must operate within time-limited processes and give notice and opportunity to respond. The effect is to preserve enforcement capacity while placing measured procedural constraints on how and when transitional accreditations can be penalised or conditioned.

The Regulation explicitly frames itself as a savings and transitional instrument that ties the old statutory framework to the new Act, and it cross-references the principal Regulation and other statutes repeatedly. The principal interactions are with the Children and Young Persons (Care and Protection) Act 1998 (the new Act), the Children (Care and Protection) Act 1987 (the old Act), the principal Regulation, and certain provisions of the Interpretation Act 1987 and the Children’s Young Persons (Care and Protection) Regulation updates effected by later amending regulations.

Interaction with the new Act and the principal Regulation

• The Regulation repeatedly takes actions or inactions under the old Act and declares how they are to be treated under the new Act. Examples include: temporary care arrangements (cl 7), custody and parental responsibility aspects (cl 8), wards becoming under the Minister’s parental responsibility (cl 9), and the treatment of notifications and investigations (cl 10). These clauses create legal continuity by translating old Act status into the new Act’s provisions.
• Certain transitional designated agency provisions explicitly limit the application of the principal Regulation: cl 22A(5) states that the principal Regulation does not apply to a transitional designated agency accredited under cl 22A except as provided by Division 3A. Similarly, cl 22B(8) provides that the principal Regulation does not apply to Community Services except as provided by that Division. Those carve-outs create a tailored interface where the principal Regulation governs accreditation in general, but transitional arrangements are managed by the transitional Division.
• Clause 22 renders a detailed mapping between many new Act orders and their old Act counterparts so that residual old Act provisions may continue to apply to certain new orders (cl 22(1) and the Table). This is a direct statutory interaction technique preserving application of particular old Act rules to new Act orders where the Regulation prescribes.

Interaction with Interpretation Act 1987

• Clause 5 states that, except as otherwise provided by this Regulation, nothing in this Regulation affects the application of section 30 of the Interpretation Act 1987. This reserves interpretive rules about repeal and savings under the Interpretation Act, and indicates that the Regulation operates alongside general interpretation principles.

Interaction with the Administrative Decisions Tribunal and review architecture

• Part 5, cl 27 makes specific provision for review of Children’s Guardian decisions by the Administrative Decisions Tribunal by declaring clause 6B(a)(i) of the principal Regulation, as inserted by the amending Regulation, applies to a condition imposed before its commencement. This connects the principal Regulation’s review architecture to transitional conditions imposed prior to the amendment.

Interaction with other instruments and amendments

• Part 5 consists of provisions consequential on the 2008 Out-of-Home Care amendment Regulation. Those clauses declare how newly inserted or substituted provisions in the principal Regulation apply to pending matters, existing accreditations, and criteria approved under the pre-existing clause 36 (see cll 26-35). The Regulation therefore operates in series with amending instruments and the principal Regulation to ensure a smooth legal interaction across time.

Special relationships and limits

• The Children’s Guardian’s powers under the principal Regulation are modified in relation to transitional designated agencies. For instance, cl 22CB(2)-(4) modifies how clause 39 of the principal Regulation may be applied to transitional accreditations by adding written notice requirements and response windows. Clause 22CD(2) excludes certain grounds in clause 40(2)(f) and (g) of the principal Regulation from being valid bases for suspension or cancellation of transitional accreditations, creating a limit on interaction for that specific class of accreditations.

Cross-jurisdictional reciprocity

• Clause 25 acknowledges reciprocity between States and Territories. Any act or matter that had effect under section 95 of the old Act immediately before its repeal is taken to have effect under section 255 of the new Act. This preserves interstate legal effects insofar as those sections operated.

Overall, the Regulation is intentionally an instrument of legal translation tying prior legal statuses, processes, rights and administrative routes from the old Act into the architecture of the new Act and the principal Regulation, while imposing specific, limited deviations where transitional management makes them necessary.

The Regulation’s text records a number of insertions, substitutions and amendments with dates and sources. The following summarises the amendment history as recorded in the clauses, citing the amending instruments and schedules recorded in the margins of the source text.

Early amendments and commencement

• The Regulation commenced on 18 December 2000 (cl 2). Clause 3 records amendment history: "cl 3: Am 2008 (471), Sch 1 [1]; 2011 (46), Sch 2 [1]." These entries indicate clause 3 was amended by instruments in 2008 and 2011 as set out in those numbered amending regulations and schedules.

Part 3A and related inserts

• Part 3A (Out-of-home care) was inserted in 2003: the notation "pt 3A: Ins 2003 (468), Sch 1 [2]" shows the 2003 instrument that added Part 3A. Clauses 22A-22H are tagged "Ins 2003 (468), Sch 1 [2]". Further amendments to these clauses occurred in later years:
  • Clause 22A bears the amendment history "Am 2005 (13), Sch 2; 2008 (471), Sch 1 [2]; 2011 (46), Sch 2 [2]; 2013 (376), Sch 1 [1]". This records successive amendments in 2005, 2008, 2011 and 2013.
  • Clause 22AA was inserted in 2011: "cl 22AA: Ins 2011 (46), Sch 2 [3]. Am 2013 (376), Sch 1 [2]-[6]." This shows it was added in 2011 and amended in 2013.
  • Clause 22B: "Ins 2003 (468), Sch 1 [2]. Subst 2008 (471), Sch 1 [3]. Am 2011 (46), Sch 2 [4]; 2013 (376), Sch 1 [7]-[13]." This indicates it was inserted in 2003, substituted in 2008, and amended in 2011 and 2013.
  • Clause 22C: "Ins 2003 (468), Sch 1 [2]. Subst 2008 (471), Sch 1 [3]." Inserted 2003 and substituted in 2008.
  • Clause 22CA: "Ins 2008 (471), Sch 1 [3]. Am 2011 (46), Sch 2 [4]."
  • Clause 22CB: "Ins 2008 (471), Sch 1 [3]. Am 2011 (46), Sch 2 [4] [5]."
  • Clause 22CD: "Ins 2008 (471), Sch 1 [3]. Am 2011 (46), Sch 2 [4]."
  • Clauses 22D-22H were inserted in 2003: "Ins 2003 (468), Sch 1 [2]."

Other insertions and repeals

• Part 3A Division 2 clause 22I was inserted in 2003 and repealed in 2008: "pt 3A, div 2 (cl 22I): Ins 2003 (468), Sch 1 [2]. Rep 2008 (471), Sch 1 [4]."

Part 4 miscellaneous

• Clause 25 (reciprocity) was inserted in 2001: "cl 25: Ins 2001 (526), Sch 1."

Part 5 consequential provisions (2008 amendment)

• Part 5 and clauses 26-35 were inserted as consequential on the Children and Young Persons (Care and Protection) Amendment (Out-of-Home Care) Regulation 2008: "pt 5 (cll 26-35): Ins 2008 (471), Sch 1 [5]."
• Specific clauses in Part 5 carry the notation "Ins 2008 (471), Sch 1 [5]" and in some cases further indicate they apply to matters pending at the date of the 2008 amendments. For example:
  • Clause 27 applies clause 6B(a)(i) of the principal Regulation, as inserted by the 2008 amending Regulation, to conditions imposed before commencement.
  • Clauses 28-35 set out transitional application of accreditation-related provisions, criteria, provisional accreditation, the setting aside of a decision, transfer of accreditation, the non-application of substituted clause 40 to acts occurring before substitution, and the application of amendments to Schedule 4 in force immediately before the amendments.

Collectively, these annotations in the Regulation itself provide an internal amendment record showing the Regulation has been adjusted multiple times between 2001 and 2013, reflecting the staged progression of the out-of-home care reform program and the administrative changes required to manage accreditation and transitional arrangements. Readers that require the precise text of the amending instruments should consult the specific numbered amending regulations and schedules cited in the marginal notes.

The Regulation’s text, as provided, contains no recorded judicial decisions, reported cases, or opinions applying its provisions. It makes no reference to litigation outcomes or case names. Clause 3 and other marginal notes supply amendment references, but there are no cited judicial authorities in the text.

Practical implications of absent litigation citations

• Since the Regulation is a transition and savings instrument, its legal operation is mostly mechanistic: it declares how existing processes and statuses are to continue, and how certain administrative powers and duties operate during defined transition periods. The absence of litigation history in the text means practitioners cannot rely on precedent contained within the Regulation itself to interpret contentious points; they must therefore look to decisions interpreting the new Act, the old Act, the principal Regulation, or to administrative review decisions (for example under the principal Regulation’s review clauses) to develop litigation guidance.
• The Regulation preserves rights to continue proceedings under the old Act (cl 16) and preserves appeal rights under section 81 of the old Act for certain orders (cl 18). Consequently, any litigation that concerned matters commenced before repeal would proceed on the pre-existing statutory terms and would appear in court records rather than in this instrument.
• The Regulation links certain regulatory decisions to review by the Administrative Decisions Tribunal (cl 27). That suggests any substantive challenges to conditions or accreditation actions taken pursuant to transitional clauses may have been or could be subject to ADT review. The text does not include any entries showing outcomes of such reviews.

What a practitioner should do if seeking binding interpretation

• Given the Regulation contains no internal litigation history, counsel should consult decisions under the new Act and the principal Regulation, Administrative Decisions Tribunal or other tribunal decisions concerning the Children’s Guardian, and any court decisions that address interpretation of transitional deeming or accreditation clauses. The Regulation itself provides the textual baseline, and any litigated points will need to be demonstrated by reference to case law in the relevant forums rather than by relying on the Regulation’s margins.

In short, the Regulation supplies the statutory mechanics and amendment trail but does not itself record litigation. Any operational or interpretive disputes arising from its clauses will be resolved in courts or tribunals, with the Regulation serving as the statutory foundation.

The Regulation contains multiple provisions that are easy to misread in practice. The following are concrete traps and practical points drawn from the clauses themselves.

1. Limited scope of transitional accreditation (cl 22A(2))

• Transitional designated agency accreditation is limited to the "kind of out-of-home care" provided immediately before 15 July 2003. Agencies might incorrectly assume the deeming is a blanket accreditation for all services. The text restricts coverage and therefore services outside that defined kind will not be covered by the deeming and will require separate accreditation under the principal Regulation.

2. Transition periods are event-driven and may end earlier than calendar dates (cl 22A(3), cl 22AA(2)-(2A))

• The transition period for a body ends when an accreditation decision takes effect, when an application is withdrawn, when accreditation is cancelled, or on 14 July 2013, whichever is first (cl 22A(3)). For Community Services, the deemed accreditation ceases on 31 July 2015 unless a later date is published by the Children’s Guardian or an earlier triggering event occurs (cl 22AA(2)-(2A)). Practitioners must monitor the administrative process rather than relying on a single calendar deadline.

3. Principal Regulation non-application carve-out (cl 22A(5), cl 22B(8))

• Transitional designated agencies and Community Services are excluded from parts of the principal Regulation except as provided by the transitional Division. That can cause pitfalls when attempting to apply a principal Regulation process directly. Users should check the transitional Division for the precise application instead of assuming the principal Regulation applies in full.

4. Children’s Guardian procedural preconditions and limitations (cl 22CB)

• The Guardian cannot impose a condition under clause 39(2) of the principal Regulation on a transitional agency without written notice specifying particulars, allowing at least 28 days for rectification and allowing an agency to respond in writing within 28 days (cl 22CB(2)-(3)). A condition must be substantially the same as that proposed in the notice (cl 22CB(4)). Failing to follow these procedures may render a condition procedurally vulnerable on review.

5. Certain grounds for suspension or cancellation are excluded (cl 22CD(2))

• The Regulation prevents suspension or cancellation of transitional accreditations on the grounds set out in clause 40(2)(f) or (g) of the principal Regulation. Practitioners must therefore check clause 40 of the principal Regulation for those grounds; they cannot rely on the principal Regulation alone to justify suspension or cancellation under those grounds for transitional agencies.

6. Deemed authorisation time limits (cl 22E(3))

• A person taken to be an authorised carer because they held a fostering authority becomes an authorised carer only in relation to a specified child if the fostering authority was child-specific; and that authorisation ceases on certain events including two years after commencement. This is a time-limited deeming practitioners must track.

7. Mapping table asymmetries and non-equivalents (cl 22(1) Table)

• The mapping table in cl 22(1) is not symmetrical and contains entries where a new Act order has no equivalent in the old Act, and vice versa. For example, certain new Act orders (examination and assessment orders, consent orders directing support services, orders for therapeutic programs) are listed as having no old Act equivalent. Conversely, some old Act provisions continue to apply to new Act orders by way of the mapping. Lawyers must inspect the table entry-by-entry: assuming equivalence where none exists risks missing a residual old Act provision or misapplying an old rule.

8. Deemed financial assistance and payments (cl 22H)

• Payments or allowances provided under specified old Act provisions are taken to be grants of financial assistance under section 161 of the new Act. Recipients should confirm that the administrative records recognise this deeming; agencies should ensure continuity of payment administration under the new statutory label.

9. Continuation of investigations and notices for medical examination (cl 10, cl 11)

• Notifications and investigations under the old Act continue under the new Act (cl 10). A notice served under section 23(1) of the old Act that had not been complied with is taken only for the purpose of enabling a medical examination to be a notice under section 173(1) of the new Act (cl 11). That limited purpose may surprise practitioners expecting broader carry-over.

10. Administrative review links may be time-limited (cl 27)

• Clause 27 applies a new principal Regulation review clause to conditions imposed before its commencement. The reviewability of historical decisions depends on these transitional provisions. Users must check the specified clauses of the principal Regulation and the amending regulation rather than assuming all historic decisions fall into the same review regime.

In short, the Regulation creates nuanced, time-limited deemings and procedural constraints. The common errors will be misreading the scope of deemed accreditation or authorisation, overlooking event-triggered termination dates, applying principal Regulation provisions where the transitional Division modifies or excludes them, and failing to meet or invoke procedural notice and response windows for conditions or accreditation actions.

Compliance under this Regulation is primarily administrative: organisations and officials must track time limits, submit accreditation applications where required, respond promptly to written notices, and treat payments and authorisations in accordance with the deemings. The following steps are grounded in the clause text and explain concrete compliance actions.

1. Determine transitional status and coverage

• Agencies that provided out-of-home care immediately before 15 July 2003 should identify whether they fall within cl 22A(1)’s enumerated categories (government department, licensed residential child care centre, authorised private fostering agency, etc.). If so, confirm that their deemed accreditation covers only the kinds of out-of-home care actually provided prior to 15 July 2003 (cl 22A(2)). Do not assume coverage for additional or new service types.

2. Lodge or monitor applications for accreditation

• Transitional designated agencies that had applications pending before 14 July 2005 should ensure those applications are properly before the Children’s Guardian and be aware that such applications are to be dealt with in accordance with the principal Regulation except as modified by cl 22C (cl 22C(1)-(2), (5)-(6)). Agencies that applied voluntarily during the 1 July 2002 to 14 July 2003 window are taken to have applied for accreditation (cl 22C(4)).
• Track the events that end the transition period: a formal accreditation decision taking effect, withdrawal of application, cancellation of accreditation, or the calendar date for cessation (cl 22A(3)). Use the transition period remaining as the planning horizon for full compliance.

3. If you are Community Services, follow the progressive achievement timetable

• Community Services must meet minimum standards or criteria determined by the Minister on the Children’s Guardian’s recommendation by the dates the Children’s Guardian determines (cl 22B(2)). The Children’s Guardian may change those dates but cannot make them earlier without Community Services’ consent (cl 22B(3)). Be prepared to furnish any reasonable information requested by the Children’s Guardian to demonstrate compliance (cl 22B(4)). Expect the Children’s Guardian to report non-compliance to the Minister (cl 22B(7)) and plan accordingly.

4. Respond to Children’s Guardian notice procedures

• If the Children’s Guardian issues a written notice under cl 22CB(3), it must contain particulars of concerns, a request to address the concern by a date at least 28 days after the notice, information that a condition may be imposed, and a statement that the agency may notify the Guardian in writing within 28 days listing specified contentions (cl 22CB(3)(a)-(d)). Agencies should treat such notices as triggering strict response obligations. Prepare a written response within the 28 day window addressing the particulars, and if the agency believes the condition is unreasonable, state the grounds as permitted by cl 22CB(3)(d)(iii). If a condition is imposed, that condition must be substantially in the terms proposed in the notice (cl 22CB(4)). Maintain contemporaneous records of notices and responses.

5. Manage transfers of accreditation carefully

• If an accreditation is to be transferred under clause 37B of the principal Regulation, confirm the transfer will result in the transferee being taken to be a transitional designated agency and that the transferor’s transition period will apply to the transferee (cl 22CA(1)-(2)). Plan governance, compliance and oversight responsibilities accordingly.

6. Track authorisations of carers and time limits

• Persons taken to be authorised carers under cl 22D should identify the designated agency that is taken to have authorised them (cl 22D(3)). Persons with fostering authority taken to be authorised carers under cl 22E must note the child-specific limits and that authorisation may end when the child leaves, two years after the commencement of cl 22E, or when the child reaches 18 (cl 22E(3)). Agencies should notify carers and record the expiry triggers.

7. Preserve and document continuity of payments and assistance

• If a person is receiving an allowance or payment under specified sections of the old Act immediately before cl 22H commenced, the person is taken to have been granted financial assistance under section 161 of the new Act (cl 22H(1)-(2)). Agencies must update records to reflect the grant under the new Act, and ensure payment administration and entitlements continue uninterrupted.

8. Ensure court and tribunal practitioners confirm procedural continuity

• For pending proceedings, courts will continue under the old Act where the Regulation so provides (cl 16). Make sure filings, appeals and enforcement steps adhere to the procedural framework of the old Act if the proceeding is one preserved by cl 16. For decisions of the Children’s Guardian that may be reviewable, note cl 27’s application of clause 6B(a)(i) of the principal Regulation and be ready to lodge review applications with the Administrative Decisions Tribunal where appropriate.

9. Maintain a statutory watch for changes in dates or further orders

• The Children’s Guardian may publish an order on the NSW legislation website setting a later date for cessation of Community Services’ accreditation under cl 22AA(2). Regularly check published orders to verify whether any dates have been altered or accreditation decisions have taken effect.

10. When in doubt, consult the principal Regulation and the specific amending clauses

• The Regulation frequently modifies how the principal Regulation applies to transitional agencies. For detailed procedural or enforcement questions, consult the principal Regulation text and the specific paragraphs of this Regulation that alter its application. Part 5 clarifies how various principal Regulation provisions apply to matters pending at the time of the 2008 amendments (cll 26-35).

In all cases, compliance will require accurate record-keeping: copies of application forms and decisions, dates when decisions take effect, notices from the Children’s Guardian, responses within the 28 day windows, documentation of payments taken to be financial assistance, and tracking of the transition period’s expiry triggers. The Regulation subordinates many outcomes to administrative decisions by the Children’s Guardian and the Minister, so proactive engagement with those decision-makers and timely responses to notices are the primary compliance levers grounded in the Regulation’s text.