Children (Protection and Parental Responsibility) Act 1997
In ForceNSW
Jurisdiction
New South Wales
Act Number
78 of 1997
Collection
act
Plain English Summary
7/10 complexity
This law creates three linked mechanisms: court powers to involve and sanction parents in youth offending; Attorney‑General‑declared “operational areas” that give police limited powers to remove and place unsupervised children from public places (with procedural safeguards); and a local crime‑prevention planning regime where councils draft plans for AG approval as safer community compacts, potentially unlocking grant funding. It chiefly affects councils, the Attorney‑General, police, courts and the Department of Community Services and ties exercises of power to appropriation, consultation and statutory safeguards.
This Act establishes two linked regulatory programmes: parental responsibility measures for children appearing before criminal courts (Part 2), and a localised framework for police powers to remove children from public places together with local crime prevention planning and funding (Parts 3 and 4). Part 2 gives courts powers to require attendance by parents and other persons (s 7), to accept undertakings from children and parents (ss 8-9), to require counselling (s 10) and to create offences for a parent who by wilful default materially contributes to a child’s offence (s 11). Part 3 creates a two-step mechanism before police may remove children from public places: a council must request, and the Attorney General must declare, an operational area (ss 13-16). Once an area is declared, Division 2 empowers police to remove persons believed on reasonable grounds to be under 16 and at risk (ss 18-19), escort them to parents, carers, close relatives, approved persons or to the Director-General of the Department of Community Services (ss 21-22, 24), while limiting certain actions such as leaving children at police stations (s 23(1)) and imposing time limits on informal care (s 22(6)-(7)). Part 4 requires councils to prepare draft local crime prevention plans (s 31), consult and publicly exhibit them (s 34), and permits the Attorney General to approve such plans as safer community compacts and to provide financial assistance from appropriated money (ss 39-40). The Attorney General may delegate functions (s 43), regulations may be made including offences up to 10 penalty units (s 46), and a statutory review of the Act is required three years after assent (s 50). The Act also repeals the previous parental responsibility Act and Regulation (s 47) and contains transitional provisions (Schedule 2).
Mechanically, the Act shifts some decision rights to administrative actors. Councils initiate local plans and may request a declaration (ss 31, 14(1)). The Attorney General decides whether an area becomes operational and whether a plan becomes a safer community compact (ss 14, 39). Police obtain conditional summary powers to remove and place children in care within operational areas (ss 18-22). The Director-General of the Department of Community Services designates approved persons and may receive children from police (ss 24, 22(5)-(8)). Financial flows are discretionary: the Attorney General “may” grant assistance from parliamentary appropriations for initiatives under approved compacts (s 40(2)-(3)). The Act also imposes specific procedural steps on councils for public exhibition, consultation and publication (ss 31, 34, 38).
Current sections
Direct links to the current provisions in Children (Protection and Parental Responsibility) Act 1997.
This Act commences on a day or days to be appointed by proclamation.
3
Definitions
3 Definitions
3 Definitions
In this Act—
Aboriginal means a person who—
(a) is a member of the Aboriginal race of Australia, and
(b) identifies as an Aboriginal, and
(c) is accepted by the Aboriginal community as an Aboriginal.
Aboriginal child means a child of an Aboriginal.
approved person means a person chosen from a list of persons designated by the Director-General of the Department of Community Services under section 24.
court means a court exercising criminal jurisdiction.
crime prevention includes, but is not limited to, strategies, initiatives and services that are likely to develop or enhance a safer community.
cultural heritage includes beliefs, morals, laws, customs, religion, superstitions, art, language, diet, dress and race.
Department means the Attorney General’s Department.
exercise a function includes perform a duty.
function includes a power, authority or duty.
local crime prevention plan means a local crime prevention plan adopted by a council under Part 4 and in force in relation to an area.
operational area means an area in respect of which a declaration under section 14 is in force.
parent of a child includes—
(a) a guardian of the child, and
(b) a person who has custody of the child,
but does not include the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or the Director-General of the Department of Community Services, or the father or mother of the child if the father or mother has neither guardianship nor custody of the child.
public place means—
(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public, whether or not on payment of money or other consideration, whether or not it is ordinarily so open or used and whether or not the public to whom it is open consists of only a limited class of persons.
safer community compact—see section 39.
Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.
Torres Strait Islander child means a child of a Torres Strait Islander.
s 3: Am 1998 No 158, Sch 2.6 [1] [2]; 2012 No 60, Sch 2.
4
Operation of Act
4 Operation of Act
4 Operation of Act
(1) This Act does not affect any functions (including functions of a court or police officer) that may be exercised apart from this Act.
(2) This Act extends to acts, matters and things occurring, and proceedings instituted, before the commencement of this section.
5
Notes
5 Notes
5 Notes
Notes included in this Act do not form part of this Act.
Part 2
Parental responsibility
Part 2 Parental responsibility
Part 2 Parental responsibility
6
Guiding principles for courts
6 Guiding principles for courts
6 Guiding principles for courts
(1) In considering how a child should be dealt with under this Part, a court is to have regard to whether the taking of the action under consideration is in the best interests of the child.
(2) Without limiting the matters that the court may take into account for the purposes of subsection (1), the court is to consider—
(a) the nature of the relationship of the child with the child’s parent or parents, and
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parent or parents, and
(c) the welfare, status and circumstances of the child and of the child’s parent or parents.
7
Attendance of parents and other persons at proceedings
7 Attendance of parents and other persons at proceedings
7 Attendance of parents and other persons at proceedings
(1) A court exercising criminal jurisdiction in relation to a child may require the attendance, at the place at which the proceedings are being or are to be conducted, of—
(a) one or more of the child’s parents, or
(b) if the child is in statutory out-of-home care under which the Minister has parental responsibility for the child—
(i) the Minister, or
(ii) a representative of the Minister, including an officer or employee of a designated agency, or
(c) if the child is in statutory out-of-home care under which the Secretary has parental responsibility for the child—
(i) the Secretary, or
(ii) a representative of the Secretary, including an officer or employee of a designated agency.
(2) For subsection (1)(a), the court may specify which parent or parents are to attend.
(1) A court that finds a child guilty of an offence may, instead of dealing with the child in any other way permitted by law, release the child on condition that the child give an undertaking—
(a) to submit to parental or other supervision as ordered by the court, or
(b) to participate in a specified program, or to attend a specified activity centre, or
(c) to reside with a parent or other person, as directed by the court, or
(d) to do such other thing as may be specified by the court.
(2) If it appears to a court that a child has failed to comply with an undertaking given by the child under this section, the court may direct that the child, and one or more parents of the child, be served with a notice to appear before the court at a specified time and place. The court may specify which parents are to attend.
(3) If the court is satisfied that the child has failed to comply with the undertaking concerned, the court—
(a) may cancel the undertaking, or
(b) may continue or vary the undertaking, but must not extend the period of the undertaking.
(4) If the court cancels the undertaking, the court—
(a) may release the child, or
(b) may impose any penalty that it could have imposed, or exercise any other function that it could have exercised, on finding the child guilty of the offence concerned.
9
Undertakings by parents
9 Undertakings by parents
9 Undertakings by parents
(1) A court that finds a child guilty of an offence may, instead of dealing with the child in any other way permitted by law, release the child on condition—
(a) that one or more parents of the child give an undertaking with or without conditions to do or refrain from doing the act or acts specified in the undertaking for a period not exceeding 6 months, or in exceptional circumstances 12 months, but in no case extending beyond the child’s eighteenth birthday, or
(b) that one or more parents of the child give a supplementary undertaking to the court—
(i) to guarantee the child’s compliance with any undertaking given under section 8, and
(ii) to take specified action to assist the child’s development and to guard against the commission by the child of any further offences, and
(iii) to report at intervals stated in the supplementary undertaking on the child’s progress, or
(c) that one or more parents of the child give security (whether by deposit of money or otherwise) for the good behaviour of the child for a period not exceeding 6 months, or in exceptional circumstances 12 months, but in no case extending beyond the child’s eighteenth birthday.
(2) No security is to be required from a parent under this section unless the parent has been required to attend before the court and has had an opportunity to be heard.
(3) A court must not take any action against a child for the failure of a parent of the child to comply with an undertaking under this section.
(4) Such part of any security required under this section as the court may determine is to be forfeited to the Crown if the person giving it fails to fulfil the obligation to ensure the child is of good behaviour.
(5) The court may specify which parent or parents are subject to any condition imposed under subsection (1).
10
Family counselling
10 Family counselling
10 Family counselling
A court may require a child that it finds guilty of an offence and the child’s parent or parents to undergo such specified counselling as the court considers would be beneficial in assisting the progress of the child.
11
Parents contributing to children’s offences
11 Parents contributing to children’s offences
11 Parents contributing to children’s offences
(1) A parent who, by wilful default, has contributed directly or in a material respect to the commission of an offence of which the child has been found guilty, is guilty of an offence.
Maximum penalty—10 penalty units.
(2) The court may require a parent convicted of an offence under subsection (1) to undergo counselling or do such other things that would in the opinion of the court advance the welfare and best interests of the child instead of, or in addition to, imposing a penalty.
12
Ancillary provisions
12 Ancillary provisions
12 Ancillary provisions
(1) Rules of court may be made for or with respect to the attendance of parents and children required under this Act to attend a place and undertakings required to be given under this Part.
(2) (Repealed)
(3) Without affecting the generality of subsection (1), the provisions of Parts 3 and 4 of Chapter 4 of the Criminal Procedure Act 1986 relating to warrants and subpoenas for the attendance of witnesses in proceedings before the Local Court for offences punishable on summary conviction apply to the attendance of any person required under this Act to attend (before the Local Court or the Children’s Court) at a place in the same way as those provisions apply to the attendance of witnesses in proceedings for such offences.
(4) A court may exercise all or any one or more of the functions under sections 7, 8, 9 and 10 in any particular matter.
s 12: Am 2001 No 121, Sch 2.40 [1]–[4]; 2007 No 94, Sch 2.
Part 3
Welfare of children in public places
Part 3 Welfare of children in public places
Part 3 Welfare of children in public places
Division 1
Declaration of operational area
Division 1 Declaration of operational area
Division 1 Declaration of operational area
13
Object of Division
13 Object of Division
13 Object of Division
The object of this Division is to provide for the declaration of the areas (or portions of areas) in which the powers conferred by Division 2 of this Part on police officers to remove children from public places may be exercised.
Note—
An area is defined in section 3 to mean a local government area and to include a part of a local government area.
14
Operational area
14 Operational area
14 Operational area
(1) The council for an area may request the Attorney General to declare the area to be an operational area for the purposes of Division 2 of this Part.
(2) The Attorney General may, by order, declare an area described in the order to be an operational area for the purposes of Division 2 of this Part in accordance with a request under subsection (1), or may declare a portion only of that area to be an operational area.
(3) The Attorney General must not make an order declaring an area (or portion of an area) to be an operational area unless the Attorney General is satisfied that adequate crime prevention or youth support initiatives will be available in the area before the order takes effect.
(4) In considering a request under subsection (1) to declare an area (or a portion of an area) to be an operational area, the Attorney General is to have regard to the following—
(a) whether the council has adequately informed and consulted with the local community concerned, including young people and the Aboriginal community, and the views expressed,
(b) the extent and nature of crime in the area,
(c) the nature of any crime prevention or youth support initiatives that have been undertaken in the area, including whether any local crime prevention plan or safer community compact is in force for the area, or is in the course of being prepared by the council for the area, and the contents or proposed contents of that plan or compact,
(d) the effect of making the declaration on young people in the area, including the availability of safe and appropriate recreational amenities for young people in the area,
(e) the practicality of applying Division 2 of this Part in the area, including (but not limited to) any advice given by the Commissioner of Police relating to the operational capacity of police to carry out functions under the Division in the area,
(f) without limiting paragraph (e), whether appropriate arrangements have been made, or are able to be made, to cater for the needs of young people who are removed from public places in the area under Division 2 of this Part and who are not able to be taken home, including culturally appropriate arrangements for Aboriginal and Torres Strait Islander young people,
(g) whether the council has undertaken steps to include young people’s needs in its local planning processes.
(5) The Attorney General is to consult with the Minister for Community Services and the Minister for Police before declaring an area (or a portion of an area) to be an operational area.
15
Duration of declaration
15 Duration of declaration
15 Duration of declaration
(1) An order declaring an area (or a portion of an area) to be an operational area takes effect on a day specified in the order, being a day that is later than the day it is published in accordance with section 17.
(2) Unless it is sooner revoked, the declaration of an operational area remains in force for such period as is specified in the order.
(3) The declaration of a portion of an area as an operational area does not prevent the declaration of further portions of the same area as operational areas.
(4) The council of an area (or a portion of an area) declared to be an operational area must report to the Attorney General when requested to do so by the Attorney General on the implementation, and effectiveness, of the powers conferred by Division 2 of this Part.
16
Amendment or revocation of declaration
16 Amendment or revocation of declaration
16 Amendment or revocation of declaration
(1) The Attorney General may, by order, amend or revoke an order declaring an area (or a portion of an area) to be an operational area.
(2) An order under subsection (1) may be made at the request of the council for the area to which the declaration relates or on the Attorney General’s own initiative.
(3) The Attorney General is to consult with the Minister for Community Services and the Minister for Police before revoking or, unless the Attorney General considers the amendments are not substantial, amending an order declaring an area to be an operational area.
17
Publication
17 Publication
17 Publication
As soon as practicable after making, amending or revoking an order declaring an area (or a portion of an area) to be an operational area, the Attorney General is to cause a copy of the relevant order to be published in the Gazette and in a newspaper circulating generally in the area (or the portion of the area).
Division 2
Removal of children from public places
Division 2 Removal of children from public places
Division 2 Removal of children from public places
18
Children to whom Division applies
18 Children to whom Division applies
18 Children to whom Division applies
This Division applies to a person—
(a) who is in a public place in an operational area, and
(b) who a police officer believes on reasonable grounds is a child under the age of 16 years.
19
When action may be taken under this Division
19 When action may be taken under this Division
19 When action may be taken under this Division
(1) A police officer may remove a person to whom this Division applies from any public place in an operational area if the police officer believes on reasonable grounds that the person—
(a) is not subject to the supervision or control of a responsible adult, and
(b) is in the public place in circumstances that place the person at risk.
(2) A police officer who removes a person from a public place under this section must escort (or arrange for another police officer to escort) the person to a place and place the person in the care of a person in accordance with section 22.
(3) For the purposes of this section, a person is at risk if—
(a) the person is in danger of being physically harmed or injured, or
(b) the person is in danger of abuse (including assault and sexual assault, ill treatment and exposure to behaviour that may cause psychological harm to the person), or
(c) the person is about to commit an offence.
20
Relationship to Children and Young Persons (Care and Protection) Act 1998
20 Relationship to Children and Young Persons (Care and Protection) Act 1998
(3) Before taking action under section 22 in relation to a person to whom this Division applies, a police officer is to consider whether it would be more appropriate to take action under the Children and Young Persons (Care and Protection) Act 1998 to best meet the needs of the person.
Guiding principles when taking action under this Division
21 Guiding principles when taking action under this Division
21 Guiding principles when taking action under this Division
(1) A police officer who removes a person to whom this Division applies from a public place under this Division is to use his or her best endeavours to escort the person to the home of a parent, relative or other person who is responsible for caring for the person and to leave the person in the care of the parent, relative or other responsible person.
(2) Despite subsection (1), the police officer’s paramount duty is to ensure that any action taken in respect of a person to whom this Division applies who is removed from a public place under this Division is in the best interests of the person and the police officer is to take such action as the police officer considers appropriate in the circumstances to promote the person’s best interests.
22
Action that may be taken
22 Action that may be taken
22 Action that may be taken
(1) A police officer who removes a person to whom this Division applies from any public place may escort (or arrange for another police officer to escort) the person to the residence of a parent of the person or, if the person has a carer, his or her care residence and leave the person there.
(2) A police officer who escorts a person to the residence of a parent of the person or his or her care residence must not leave the person at that residence unless—
(a) the parent or carer of the person or some other responsible adult is present at the residence and is able and willing to care for the person, or
(b) the police officer is satisfied that the person may safely be left at the residence in the absence of a responsible adult.
(3) If the police officer is unable to escort the person to, or leave the person, at a place referred to in subsection (2), the police officer may escort (or arrange for another police officer to escort) the person to the residence of a close relative nominated by the person and leave the person there.
(4) A police officer who escorts a person to the residence of a close relative must not leave the person at that residence unless the relative or some other responsible adult is present at the residence and is able and willing to care for the person.
(5) If for any reason a police officer is unable to escort a person to, or leave a person at, a place referred to in subsection (2) or (4), he or she may—
(a) place the person in the care of the Director-General of the Department of Community Services, or
(b) if the police officer is unable to place the person in the care of the Director-General, place the person in the care of an approved person who is able and willing to have the care of the person.
(6) A person in whose care a person is placed under subsection (5) may keep the person in his or her care for such period not exceeding 24 hours (or such shorter period as may be prescribed by the regulations) as may be necessary for arrangements to be made to return the person to the care of a parent or carer.
(7) If, on the expiration of the period referred to in subsection (6), a person has not been returned to the care of a parent or carer, the person is to be released or dealt with according to law.
(8) The Director-General of the Department of Community Services may place a person who is placed in the care of the Director-General under this section in the care of any person in whose care a child might be placed under the Children and Young Persons (Care and Protection) Act 1998.
s 22: Am 1998 No 158, Sch 2.6 [4].
23
Limitations on action that may be taken
23 Limitations on action that may be taken
23 Limitations on action that may be taken
(1) A police officer who removes a person to whom this Division applies from a public place must not in any circumstances escort (or arrange for another police officer to escort) the person to, or leave the person at, a police station.
(2) A police officer must not leave a person to whom this Division applies at any place to which the person has been escorted under section 22 if the police officer considers it would be detrimental to the best interests of the person to do so.
(3) Before escorting a person to a place under section 22, the police officer is to take into account any wishes or feelings of the person (considered in the light of the person’s apparent age and understanding) that are volunteered by the person. However, nothing in this subsection permits a police officer to require a person to express his or her wishes or feelings in relation to this matter.
24
Approved person
24 Approved person
24 Approved person
(1) The Director-General of the Department of Community Services may designate persons who reside in or in the vicinity of an operational area to be approved persons with whom a person to whom this Division applies (or a person within a specified class of such persons) removed from a public place in a specified operational area may be placed under section 22 (5) (b).
(2) In deciding which persons should be designated under this section in respect of an Aboriginal child, the Director-General is to take into account (so far as they are applicable) the principles for placement of Aboriginal children set out in section 13 of the Children and Young Persons (Care and Protection) Act 1998.
(3) In deciding which persons should be designated under this section in respect of children other than Aboriginal children, the Director-General is to take into account the principle that children with a particular cultural heritage should preferably be placed with persons who are of a similar background or who understand their special needs.
s 24: Am 1998 No 158, Sch 2.6 [5].
25
Notification requirements
25 Notification requirements
25 Notification requirements
(1) A police officer who places a person to whom this Division applies in the care of a person other than a parent or carer of the person, or who leaves a person at a residence in the absence of a parent or carer, is required to notify a parent of the person or, if the person has a carer, the person’s carer, if the parent or carer is known and notification is practicable.
(2) This section does not require a police officer to notify a person’s parent of the person’s whereabouts if—
(a) the person volunteers to the police officer that he or she does not wish his or her parent to be so notified, and
(b) the police officer is satisfied that it would not be in the person’s best interests to so notify the parent.
26
Exercise of functions under Division by police officer
26 Exercise of functions under Division by police officer
26 Exercise of functions under Division by police officer
(1) A police officer may exercise functions under this Division without further authority than that conferred by this Division, and is to act in conformity with any relevant directions issued by the Commissioner of Police.
(2) The regulations may limit the circumstances, and regulate the manner, in which functions conferred on police officers by this Division may be exercised.
27
Police officer may request person to state name, age and address
27 Police officer may request person to state name, age and address
27 Police officer may request person to state name, age and address
For the purposes of enabling a police officer to escort a person removed from a public place under this Division to a place referred to in section 22, the police officer may request the person to state—
(a) his or her name and age, and
(b) his or her parent’s residential address or, if he or she has a carer, the address of his or her care residence.
28
Use of force
28 Use of force
28 Use of force
A police officer may use reasonable force for the purpose of removing a person from a public place under this Division or escorting the person under section 22.
29
Removal of concealed weapons
29 Removal of concealed weapons
29 Removal of concealed weapons
(1) A police officer who believes on reasonable grounds that a person to whom this Division applies may be carrying a concealed weapon may—
(a) frisk search the person, and
(b) take possession of any weapon found in the person’s possession if the police officer considers it may endanger the person, the police officer or any other person if the person is permitted to keep it in his or her possession.
(2) In this section—
frisk search means—
(a) a search of a person conducted by quickly running the hands over the person’s outer garments, and
(b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person.
weapon includes—
(a) a firearm, or an imitation firearm, within the meaning of the Firearms Act 1996, or
(d) a glass bottle or other instrument adapted for use for causing injury to a person.
s 29: Am 1998 No 127, Sch 3.1; 2010 No 40, Sch 3.4.
Part 4
Local crime prevention
Part 4 Local crime prevention
Part 4 Local crime prevention
30
Objects of Part
30 Objects of Part
30 Objects of Part
The objects of this Part are—
(a) to work towards a safer environment by fostering community involvement in the development of local crime prevention plans prepared on the initiative of local government councils (with the assistance, at the request of the councils, of the Attorney General) for measures to be taken within their areas to reduce crime, and
(b) to assist in the funding of the development of safer community compacts and of certain initiatives under safer community compacts through grants made by the Attorney General.
31
Preparation of draft local crime prevention plans
31 Preparation of draft local crime prevention plans
31 Preparation of draft local crime prevention plans
(1) A council for an area may prepare a draft local crime prevention plan for the area.
Note—
Area is defined in section 3 to include part of an area.
(2) The Attorney General may, at the request of a council, give the council assistance in preparing a draft local crime prevention plan.
(3) The council for an area may take such steps as it considers appropriate or necessary to publicise its intention to prepare a draft local crime prevention plan and may seek and consider submissions from members of the community of the area and the public generally.
32
Guidelines
32 Guidelines
32 Guidelines
The Attorney General may from time to time issue guidelines with respect to the preparation and content of local crime prevention plans.
33
Content of draft local crime prevention plan
33 Content of draft local crime prevention plan
33 Content of draft local crime prevention plan
Without limiting the matters for which a local crime prevention plan may make provision, it may include provisions relating to the following—
(a) Aboriginal community development,
(b) non-English speaking background community development,
(c) crime prevention,
(d) drug and alcohol management,
(e) open space planning and management,
(f) parental education and family support programs,
(g) youth development strategies,
(h) consultation,
(i) arrangements for reporting and co-ordination,
(j) any matter specified in guidelines issued by the Attorney General.
34
Public notice of draft local crime prevention plans
34 Public notice of draft local crime prevention plans
34 Public notice of draft local crime prevention plans
(1) A council must give public notice of a draft local crime prevention plan and place it on public exhibition in accordance with this section.
(2) The period of public exhibition of the draft plan must not be less than 28 days.
(3) The public notice must specify a period of not less than 42 days after the date on which the draft plan is placed on public exhibition during which submissions may be made to the council.
(4) The council must, in accordance with its notice, publicly exhibit the draft plan together with any other matter that it considers appropriate or necessary to better enable the draft plan and its implications to be understood.
35
Adoption of local crime prevention plan
35 Adoption of local crime prevention plan
35 Adoption of local crime prevention plan
(1) After considering all submissions received by it concerning the draft local crime prevention plan, the council may decide to amend the draft plan or to adopt it without amendment as a local crime prevention plan for the area or part of the area concerned.
(2) If the council decides to amend the draft plan, it may publicly exhibit the amended plan or it may adopt the amended draft plan without public exhibition as a local crime prevention plan for the area or part of the area concerned.
36
Duration of local crime prevention plan
36 Duration of local crime prevention plan
36 Duration of local crime prevention plan
Unless it is sooner revoked, a local crime prevention plan has effect for such period as is specified by the council when it adopts the plan.
37
Amendment or revocation of local crime prevention plan
37 Amendment or revocation of local crime prevention plan
37 Amendment or revocation of local crime prevention plan
(1) The council may, at any time, amend or revoke a local crime prevention plan adopted by it.
(2) The council may, but is not required to, publicly exhibit any proposed amendment to the plan before adopting the amendment.
38
Public availability of local crime prevention plans
38 Public availability of local crime prevention plans
38 Public availability of local crime prevention plans
(1) Within 14 days after adopting a local crime prevention plan for an area, the council is to publish the plan in—
(a) a newspaper circulating generally in the area, and
(b) the Gazette.
(2) Within 14 days after amending or revoking a local crime prevention plan, the council is to give notice of the revocation, or cause a copy of the amendments to be published in—
(a) a newspaper circulating generally in the area, and
(b) the Gazette.
Division 3
Safer community compacts
Division 3 Safer community compacts
Division 3 Safer community compacts
39
Approval of local crime prevention plan
39 Approval of local crime prevention plan
39 Approval of local crime prevention plan
(1) The Attorney General may, at the request of a council for an area, approve a draft local crime prevention plan prepared, or local crime prevention plan adopted, by the council as a safer community compact.
(2) In deciding whether to approve a draft local crime prevention plan prepared, or local crime prevention plan adopted, by a council, as a safer community compact the Attorney General is to have regard to the following—
(a) whether the plan was prepared in accordance with, and has contents consistent with, any guidelines issued by the Attorney General under section 32,
(b) whether the contents of the plan are appropriate having regard to the extent and nature of crime in the area (or part of the area) for which it is made or proposed to be made,
(c) whether the council has adequately consulted with the local community concerned, including young people and the Aboriginal community,
(d) the likely effect of the plan on crime and on the local community, including young people and the Aboriginal community,
(e) any other matter the Attorney General considers relevant.
(3) The Attorney General is to consult, and have regard to the views of, the Minister for Community Services and the Minister for Police before giving an approval under this section.
(4) The Attorney General may approve any amendments to a plan approved under this section.
40
Effect of approval
40 Effect of approval
40 Effect of approval
(1) A local crime prevention plan, or a draft local crime prevention plan that is subsequently adopted by the council, that is approved by the Attorney General as a safer community compact comprises a safer community compact for so long as the approval of it remains in force.
(2) The Attorney General may, on application by the council for an area for which there is or is proposed to be a safer community compact, grant such financial assistance as the Attorney General considers appropriate to the council.
(3) The financial assistance is to be provided out of money to be appropriated by Parliament or that is otherwise legally available for the purposes of this Part.
(4) In this section—
financial assistance means assistance to cover—
(a) expenses incurred in undertaking any initiative proposed by a safer community compact, and
(b) any expenses incurred, or to be incurred, in developing a proposed safer community compact, or monitoring a safer community compact.
41
Council to report periodically on implementation of compact
41 Council to report periodically on implementation of compact
41 Council to report periodically on implementation of compact
The council of an area for which there is a safer community compact is to assess and report to the Minister, as and when required by the Minister, on the implementation, and effectiveness in reducing crime, of the compact.
42
Duration and revocation of approval
42 Duration and revocation of approval
42 Duration and revocation of approval
(1) An approval of a draft local crime prevention plan, or local crime prevention plan adopted by a council, as a safer community compact remains in force (unless sooner revoked) for 3 years after it is given.
(2) The Attorney General may revoke an approval by written notice given to the council concerned.
(3) The Attorney General may revoke an approval—
(a) if the Attorney General considers any provisions of the safer community compact are no longer suitable for the needs of the area to which it applies, or
(b) if the Attorney General considers the safer community compact is not being implemented in a satisfactory manner, or
(c) on any other ground the Attorney General considers appropriate.
Part 5
Miscellaneous
Part 5 Miscellaneous
Part 5 Miscellaneous
43
Delegation
43 Delegation
43 Delegation
The Attorney General may delegate any of his or her functions under this Act (other than this power of delegation) or the regulations to any officer of the Department.
44
Monitoring of complaints from community
44 Monitoring of complaints from community
44 Monitoring of complaints from community
The council of an area or portion of an area that is declared to be an operational area or for which a safer community compact is in force is, if requested to do so by the Attorney General, to monitor, identify and advise the Attorney General on trends in complaints relating to action taken in the operational area under this Act or under the compact.
45
Proceedings for offences
45 Proceedings for offences
45 Proceedings for offences
Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
s 45: Am 2001 No 121, Sch 2.40 [5]; 2007 No 94, Sch 2.
46
Regulations
46 Regulations
46 Regulations
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.
(2) In particular, the regulations may make provision for or with respect to the following—
(a) compelling the attendance of parents and children required under this Act to attend a place,
(b) the care of persons removed from a public place and escorted to another place under Part 3,
(c) reports to be provided and records to be kept under this Act.
(3) A regulation may create an offence punishable by a penalty not exceeding 10 penalty units.
(1) The Attorney General is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.
(2) The review is to be undertaken as soon as possible after the period of 3 years from the date of assent to this Act.
(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 3 years.
(3) In this section, a reference to the community welfare legislation includes a reference to each of the following Acts (and to any instrument under the Act) even though the Act may not be administered by the Minister within the Department—
Schedule 2 Savings, transitional and other provisions
Schedule 2 Savings, transitional and other provisions
(Section 49)
sch 2: Am 2002 No 53, Sch 3.
Source text: opening excerpt
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
Part 1 Preliminary
Part 1 Preliminary
1 Name of Act
1 Name of Act
1 Name of Act
This Act is the Children (Protection and Parental Responsibility) Act 1997.
2 Commencement
2 Commencement
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Definitions
3 Definitions
3 Definitions
In this Act—
Aboriginal means a person who—
(a) is a member of the Aboriginal race of Australia, and
(b) identifies as an Aboriginal, and
(c) is accepted by the Aboriginal community as an Aboriginal.
Aboriginal child means a child of an Aboriginal.
approved person means a person chosen from a list of persons designated by the Director-General of the Department of Community Services under section 24.
area has the same meaning as it has in the Local Government Act 1993 and includes part of an area.
care residence of a person means the place where the person resides under the care or in the custody of a carer.
carer of a person means any person who has residential care and control of a child under out-of-home care arrangements made under the Children and Young Persons (Care and Protection) Act 1998.
child means a person who is under the age of 18 years.
council has the same meaning as it has in the Local Government Act 1993.
court means a court exercising criminal jurisdiction.
crime prevention includes, but is not limited to, strategies, initiatives and services that are likely to develop or enhance a safer community.
cultural heritage includes beliefs, morals, laws, customs, religion, superstitions, art, language, diet, dress and race.
Department means the Attorney General’s Department.
exercise a function includes perform a duty.
function includes a power, authority or duty.
local crime prevention plan means a local crime prevention plan adopted by a council under Part 4 and in force in relation to an area.
This summary is grounded in the Act text. The Act itself states objectives for each Part, for example the object of Division 1 of Part 3 to confine where removal powers apply (s 13) and the objects of Part 4 to foster community involvement and to assist funding of safer community compacts (s 30). Those objective statements are treated in this note as claims in the source rather than judicial findings.
Main concepts
The Act builds on three core legal concepts that govern duties, discretion and administrative design.
Parental responsibility as a court tool. Part 2 frames parental participation and obligations as instruments in the criminal justice response to children. Courts can require parental attendance (s 7), accept undertakings from children (s 8) or parents (s 9), require counselling (s 10) and prosecute parents who wilfully contribute to a child’s offending (s 11). The guiding principle for courts is the child’s best interests and the relationship between child and parent (s 6).
Operational area and conditional police powers. Part 3 divides municipal geography into operational areas by ministerial order at the Attorney General’s discretion following a council request (ss 14-16). Only within such an operational area do police enjoy the removal powers in Division 2. The Division applies to persons a police officer believes on reasonable grounds are under 16 (s 18(b)), and permits removal where the officer reasonably believes the child lacks supervision and is at risk (s 19(1)). Police must employ best endeavours to return the child to a responsible adult while prioritising the child’s best interests (s 21).
Local crime prevention plans and safer community compacts. Councils may prepare local crime prevention plans, follow statutory exhibition and consultation steps (ss 31, 34), adopt plans (s 35) and seek the Attorney General’s approval to convert a plan into a safer community compact (s 39). Approval triggers an ability for the Attorney General to grant financial assistance from parliamentary appropriations for initiatives under the compact (s 40(2)-(3)). Approved compacts are time-limited for three years unless revoked (s 42(1)-(2)).
Interlocking administrative roles. The Attorney General decides on operational-area declarations (s 14), approvals of plans (s 39) and financial assistance (s 40), and may delegate functions to departmental officers other than delegation power itself (s 43). The Director-General of the Department of Community Services designates approved persons to receive children when police cannot return them to parents or carers (s 24) and may place children in care consistent with the Children and Young Persons (Care and Protection) Act 1998 (s 22(8)). Police act under statutory powers subject to Commissioner directions and regulations (s 26(1)-(2)) and to mandatory reporting obligations under the Children and Young Persons Act when exercising Division 2 functions (s 20(4)).
Statutory limits, definitions and interactions. The Act sets age thresholds that vary by provision. The general definition of child is under 18 (s 3), but Division 2 only applies to persons believed on reasonable grounds to be under 16 (s 18(b)). The Act defines public place broadly (s 3). It restricts certain police actions such as taking children to police stations (s 23(1)), authorises use of reasonable force for removals (s 28) and allows frisk searches and seizure of weapons in specified circumstances with an express definition of frisk search (s 29).
These concepts create a framework where local government, the Attorney General, police and child welfare authorities have distinct but overlapping responsibilities, each subject to statutory conditions and procedural steps in the Act.
Who it affects
The Act assigns roles and obligations to a discrete set of actors and imposes indirect effects on others.
Primary duty-holders and decision-makers
Attorney General. Decides whether to declare operational areas under Part 3 (s 14(2)), must be satisfied adequate crime prevention or youth support initiatives will be available before an order takes effect (s 14(3)), approves local crime prevention plans as safer community compacts (s 39(1)), may grant financial assistance to councils under approved compacts (s 40(2)), and may revoke declarations or approvals (ss 16(1), 42(2)). The Attorney General must consult relevant ministers before certain decisions (s 14(5), s 39(3), s 16(3)). The Attorney General may delegate functions to Department officers except the power of delegation itself (s 43).
Councils. Initiate draft local crime prevention plans and public consultation (s 31), request operational-area declarations from the Attorney General (s 14(1)), must publicly exhibit draft plans (s 34), decide to adopt or amend plans (s 35, s 37), publish adopted plans and amendments in a newspaper and the Gazette (s 38), and report to the Attorney General when requested about implementation and effectiveness of Division 2 powers in their operational area (s 15(4)) or about safer community compact implementation (s 41). Councils may receive financial assistance under s 40.
Police. Within declared operational areas, police may remove persons believed on reasonable grounds to be children under 16 and at risk (ss 18, 19), escort them to residences, leave them with responsible adults, place them with the Director-General or an approved person (s 22), frisk-search where an officer reasonably believes a concealed weapon may be present (s 29), use reasonable force during removals (s 28), and must consider whether action under the Children and Young Persons (Care and Protection) Act 1998 is more appropriate before acting under s 22 (s 20(3)). Police functions must conform with Commissioner directions (s 26(1)).
Director-General of the Department of Community Services. Receives children placed in the Department’s care under s 22(5)(a), may place children in care consistent with the Children and Young Persons (Care and Protection) Act (s 22(8)), and designates approved persons for temporary care placements (s 24).
Parents and carers. May be required to attend court (s 7), give undertakings or security for a child’s behaviour (s 9), and may be criminally liable if, by wilful default, they materially contributed to a child’s offence (s 11). If a police officer places a child in alternative care, the officer must notify a parent or carer if known and practicable unless the child volunteers otherwise and the officer is satisfied non-notification is in the child’s best interests (s 25).
Other affected parties
Young people under 16. They are within the direct scope of Division 2 in operational areas and may be removed from public places and placed temporarily in a range of care settings (ss 18-22). The Act treats under-16s differently from the general definition of child under 18 (s 3 vs s 18(b)).
Approved persons and close relatives. Persons designated by the Director-General as approved persons may be required to take temporary care placements (ss 24, 22(5)(b)). Close relatives nominated by the child can be the landing point for police escorts but must be able and willing to care for the child before the police may leave the child there (s 22(3)-(4)).
Community generally. Councils must consult the community including young people and Aboriginal people in preparing plans and operational-area requests (ss 14(4)(a), 31(3), 33, 39(2)(c)). Approved compacts and adopted plans must be publicly exhibited and published (ss 34, 38).
Indirect financial stakeholders
Councils and local agencies may receive financial assistance for approved compacts from appropriations controlled by the Attorney General (s 40(2)-(3)). The Act makes such assistance discretionary and subject to parliamentary appropriation.
Persons not covered or explicitly excluded
The Minister administering the Children and Young Persons (Care and Protection) Act 1998 or the Director-General of the Department of Community Services, and parents lacking guardianship or custody, are excluded from the definition of parent for certain purposes (s 3, parent definition).
The Act therefore reallocates operational responsibilities among local government, the Attorney General, police and the Department of Community Services, with direct effects on children under 16, their parents and carers, approved persons, and local communities involved in plan preparation and implementation.
Key duties and rights
The Act creates affirmative duties and confers specific powers. Below are principal legal obligations and statutory entitlements, cited to the relevant sections.
Court duties and powers (Part 2)
Courts must regard the child’s best interests when exercising parental responsibility powers (s 6(1)-(2)). The statute supplies non-exhaustive factors such as the nature of parent-child relationship, parental attitude and the welfare and circumstances of the child and parents (s 6(2)(a)-(c)).
Courts may require parents and others to attend proceedings (s 7(1)-(2)) and may specify which parent must attend (s 7(2)). The definition of designated agency is cross-referenced to the Children’s Guardian Act 2019 for attendance involving out-of-home care situations (s 7(3)).
Courts may release a child on undertaking instead of other dispositions (s 8(1)), call parents to explain breaches (s 8(2)), cancel or vary undertakings but not extend undertaking periods (s 8(3)) and, if cancelled, impose available penalties (s 8(4)).
Courts may accept parental undertakings up to six months or, in exceptional circumstances, 12 months but not beyond the child’s eighteenth birthday; supplementary undertakings to guarantee a child’s compliance are available (s 9(1)). Security for good behaviour may be required but only after the parent has had an opportunity to be heard (s 9(2)). Courts cannot punish a child for a parent's failure to comply (s 9(3)). Forfeiture rules are specified (s 9(4)).
Courts may require family counselling and make it a part of the sentence or disposition (s 10).
Parent criminal liability is created where a parent by wilful default contributed directly and materially to the child’s offence; penalty 10 penalty units; courts may instead require counselling or other actions (s 11).
Police duties and constraints (Part 3 Division 2)
Police may exercise removal powers in operational areas only, and the Division applies only to persons believed on reasonable grounds to be under 16 and in public places in operational areas (ss 14, 18).
Police may remove a child from a public place if the child is unsupervised and at risk, where risk includes physical harm, abuse and imminent commission of an offence (s 19(1)-(3)). They must escort the child to a place in accordance with s 22 (s 19(2)).
Police must try to escort the child to the parent, carer or other responsible adult, using best endeavours (s 21(1)), but their paramount duty is the child’s best interests, which may require other action (s 21(2)).
Specific placement options are listed: parent’s residence, carer’s residence, nominated close relative, Director-General of the Department of Community Services, or an approved person (s 22(1), (3), (5)). Conditions for leaving the child are set out, such as the presence of a responsible adult or the police being satisfied the child may safely be left (s 22(2), (4)).
Temporary custody ceilings are defined: approved-person care may last up to 24 hours or a shorter prescribed period (s 22(6)), after which the child must be released or dealt with according to law if not returned (s 22(7)).
Police cannot take or leave children at police stations under any circumstances (s 23(1)). Police must consider the child’s wishes as volunteered before escorting under s 22, albeit not compelling expression of views (s 23(3)). Police may use reasonable force for removals (s 28).
Police exercising Division 2 functions must consider whether the Children and Young Persons (Care and Protection) Act 1998 would be more appropriate before acting under s 22, and mandatory reporting under that Act applies (s 20(1), (3)-(4)).
Administrative duties and discretionary powers
The Attorney General must be satisfied that adequate crime prevention or youth support initiatives will be available before declaring an area operational (s 14(3)) and must consult specified ministers before making or revoking orders (ss 14(5), 16(3)). The Attorney General may issue guidelines regarding plans (s 32), approve plans as safer community compacts (s 39), grant financial assistance from appropriations (s 40(2)-(3)) and revoke approvals (s 42).
Councils must publicly exhibit draft plans for not less than 28 days and allow at least 42 days for submissions following exhibition (s 34(2)-(3)). Councils must publish adopted plans and amendments in a newspaper and the Gazette within 14 days (s 38(1)-(2)). Councils must report on implementation when requested by the Attorney General (s 41).
The Director-General designates approved persons (s 24(1)) and must take cultural placement principles into account for Aboriginal children and culturally similar backgrounds for non‑Aboriginal children (s 24(2)-(3)).
Rights and safeguards
Children and parents have procedural safeguards in courtroom processes including opportunities to be heard before security is required from parents (s 9(2)) and limits on the duration of undertakings (s 9(1), s 8(3)). Police must not leave a child in a place considered detrimental to the child’s best interests (s 23(2)). Notification duties to parents are qualified by practicability and the child’s volunteered wish not to notify where it is in the child’s best interests (s 25(1)-(2)). Regulations may further constrain the circumstances for police functions and compel attendance (s 26(2), s 46(2)(a)-(b)).
These duties form a web of statutory obligations, discretionary grants and procedural safeguards that assign operational responsibilities across courts, police, councils, the Attorney General and the Department of Community Services.
Penalties and enforcement
The Act provides a limited set of criminal offences, monetary penalties and mechanisms for enforcement and review, leaning heavily on summary processes and administrative actions.
Criminal offences and monetary penalties
Parent contributing to child’s offence. A parent who by wilful default has directly or materially contributed to the commission of an offence by the child is guilty of an offence punishable by a maximum of 10 penalty units (s 11(1)). The court may instead require counselling or other measures for the welfare of the child upon conviction (s 11(2)).
Regulatory offences. The Governor may make regulations that create offences punishable by up to 10 penalty units (s 46(3)). Regulations may also prescribe matters such as compelling attendance to court and care arrangements for removed persons (s 46(2)(a)-(b)).
Default provisions for undertakings. The Act does not create a separate statutory penalty for breach of a child’s or parent’s undertaking in Part 2 but empowers courts to cancel undertakings, impose penalties the court could have otherwise imposed, or continue or vary undertakings without extending their period (s 8(3)-(4), s 9).
Enforcement mechanisms
Summary proceedings. Proceedings for offences under the Act or the regulations may be dealt with summarily before the Local Court (s 45). That centralises enforcement within summary jurisdictions.
Court powers to impose non‑punitive orders. For breaches or offending where parental responsibility is invoked, courts may impose counselling, supplementary undertakings and security for good behaviour (ss 8-10, 11(2)). The court controls the scope and duration of parental undertakings subject to statutory maxima (s 9(1)).
Police operational enforcement. Police exercise removal powers under Division 2, using "reasonable grounds" tests for belief of age (s 18(b)) and risk (s 19(1)). Police may use reasonable force to remove and escort children (s 28). Police may frisk search and seize weapons if reasonably believed a child may be carrying a concealed weapon (s 29(1)). The Act limits law-enforcement placements: police cannot escort a child to a police station in any circumstances (s 23(1)). Police must act in conformity with Commissioner directions and regulations may limit and regulate the manner of exercise of powers (s 26(1)-(2)).
Administrative remedies and revocation. The Attorney General may revoke declarations of operational areas (s 16(1)) and approvals of safer community compacts (s 42(2)). Councils must report implementation and may be required to monitor and advise the Attorney General on trends in complaints if requested (s 15(4), s 44). These are administrative levers to enforce or withdraw delegated operational authority.
Checks, reporting and statutory review
Reporting requirements. Councils must publish plans and amendments (s 38) and report to the Attorney General on implementation of compacts when required (s 41). The Attorney General may request councils to report on the implementation and effectiveness of Division 2 powers in an operational area (s 15(4)). The council of an operational area or compact is required to monitor and advise on complaint trends if requested by the Attorney General (s 44).
Statutory review. The Attorney General must review the Act as soon as possible after three years from the date of assent and table a report within 12 months after the end of the three-year period (s 50). The review requirement provides an oversight point for assessing whether policy objectives and statutory terms remain valid (s 50(1)-(3)).
Practical enforcement trade-offs
Summary jurisdiction for offences reduces procedural complexity but confines remedies to summary penalties or court orders.
Police powers are conditional on the existence of an operational area. Enforcement by police depends on administrative declarations by the Attorney General and operational capacity as considered in s 14(4)(e).
The Act leaves scope for Commissioner directions, regulations and Ministerial consultation to shape enforcement practice (ss 26(1), 14(5), 16(3), 39(3)). These instruments serve as supervisory controls but also create points of administrative discretion.
All enforcement powers and penalties in the Act are grounded in the specified sections cited above.
How it interacts with other laws
The Act cross-references and preserves interaction with several legislative instruments, most notably the Children and Young Persons (Care and Protection) Act 1998, local government statutes, criminal procedure provisions and child-welfare placement principles.
Direct interactions and preservation
No derogation from the Children and Young Persons (Care and Protection) Act 1998. Division 2 expressly operates "in addition to" and does not derogate from the Children and Young Persons Act (s 20(1)). The text explicitly preserves powers under specific sections and chapters of that Act, naming sections 39, 43 and 44 and Chapter 15 as unaffected (s 20(2)). Police are required to consider whether action under the Children and Young Persons Act would be more appropriate before taking action under s 22 (s 20(3)). Moreover, section 27 (Mandatory reporting) of the Children and Young Persons Act applies to police while exercising functions under Division 2 (s 20(4)). These provisions create a positive obligation on police to integrate statutory child-protection duties under the Children and Young Persons Act into their decision-making under this Act.
Local government law. "Area" and "council" are defined by reference to the Local Government Act 1993 (s 3). Councils use their planning and public-notice powers in preparing, exhibiting and adopting local crime prevention plans and in requesting operational-area declarations (ss 31, 34, 35, 14(1)). Publication obligations require a newspaper circulating in the area and the Gazette (s 38(1)(a)-(b), s 17).
Criminal Procedure Act 1986. Rules of court may be made for attendance matters and Part 12 of the Act adopts relevant provisions of the Criminal Procedure Act Chapter 4 Parts 3 and 4 that relate to warrants and subpoenas for attendance of witnesses in Local Court proceedings, applying them to attendance required under this Act (s 12(3)). This imports existing summary-procedure mechanisms for compelling attendance.
Child-welfare placement principles. In designating approved persons, the Director-General must consider the placement principles for Aboriginal children set out in s 13 of the Children and Young Persons (Care and Protection) Act 1998 (s 24(2)). For non-Aboriginal children, there is a statutory principle to prefer placements with people of similar cultural background or understanding of special needs (s 24(3)). Section 22(8) cross‑references the Children and Young Persons Act for placement of children received into the Department’s care.
Firearms and weapons statutes. The Act’s definition of weapon refers to the Firearms Act 1996 and the Weapons Prohibition Act 1998 for firearms and prohibited weapons respectively when authorising frisk searches and seizures (s 29(2)(b)-(c)).
Regulatory and administrative interfaces
Director-General and designated agency interfaces. The Act cross-references the Children’s Guardian Act 2019 definition of "designated agency" in s 7(3), which governs attendance obligations for representatives when a child is in statutory out-of-home care. This creates an administrative bridge between court attendance duties and child-welfare agencies.
Appropriations and financial assistance. Financial assistance under safer community compacts is to be provided from money appropriated by Parliament or otherwise legally available (s 40(3)). That places funding within the normal public finance framework and binds it to appropriation processes.
Regulations and delegated instruments. The Governor in Council may make regulations for attendance, care of removed persons and record-keeping (s 46(2)(a)-(c)), and regulations may prescribe offences up to 10 penalty units (s 46(3)). Commissioner directions to police also shape operational practice (s 26(1)).
Repeals, amendments and savings
The Act repeals the Children (Parental Responsibility) Act 1994 and its Regulation (s 47), and Schedule 2 contains transitional savings for matters such as a pilot scheme in Orange (Schedule 2, cl 3). Schedule 1 amends the Community Welfare Act 1987 definition of community welfare legislation to include this Act and related Acts (Schedule 1).
Operating principle
The Act is drafted to operate alongside existing child-welfare and criminal law regimes rather than replacing them. The text repeatedly instructs officers and courts to consider existing child-protection powers and imposes cross-referential duties, making judicious integration with the Children and Young Persons Act and related statutes a statutory requirement (s 20, s 22(8), s 24).
Practitioners should therefore treat this Act as an additional toolkit that must be applied in conjunction with child-protection statutes, criminal procedure rules and local-government obligations set out in other instruments.
Amendment history
The Act as supplied contains explicit amendment annotations in several sections and in the schedules. The following list records the in-text amendment notices and schedule changes shown in the source document.
Section 3 (Definitions). The margins record amendments: "s 3: Am 1998 No 158, Sch 2.6 [1] [2]; 2012 No 60, Sch 2." This indicates section 3 was amended in 1998 and again in 2012 by the instruments cited in the source annotations.
Section 7 (Attendance of parents and other persons at proceedings). The text states "s 7: Subst 2022 No 67, Sch 2.2." That records a substitutional amendment in 2022 replacing prior text with the present wording.
Section 12 (Ancillary provisions). The notes state "s 12: Am 2001 No 121, Sch 2.40 [1]-[4]; 2007 No 94, Sch 2." Those annotations indicate amendments in 2001 and 2007 to section 12.
Section 20 (Relationship to Children and Young Persons (Care and Protection) Act 1998). The note reads "s 20: Subst 1998 No 158, Sch 2.6 [3]." That shows section 20 was substituted following the 1998 Act amendments.
Section 22 (Action that may be taken). The note "s 22: Am 1998 No 158, Sch 2.6 [4]" indicates amendment in 1998.
Section 24 (Approved person). The note "s 24: Am 1998 No 158, Sch 2.6 [5]" records a 1998 amendment.
Section 29 (Removal of concealed weapons). The note "s 29: Am 1998 No 127, Sch 3.1; 2010 No 40, Sch 3.4." records amendments in 1998 and 2010.
Section 45 (Proceedings for offences). The note "s 45: Am 2001 No 121, Sch 2.40 [5]; 2007 No 94, Sch 2." indicates amendments in 2001 and 2007.
Schedule 2. The header records "sch 2: Am 2002 No 53, Sch 3." indicating Schedule 2 was amended in 2002.
Schedule 1 (Community Welfare Act 1987). Schedule 1 indicates an amendment to section 5 delegation of the Community Welfare Act 1987 to include this Act and the Children (Criminal Proceedings) Act 1987. The inserted text lists the Children (Criminal Proceedings) Act 1987 and this Act for the community welfare legislation reference.
Other points from the source:
The Act’s commencement provision (s 2) leaves commencement to proclamation; the source does not show a specific commencement date in the Act text provided.
Schedule 2 contains a specific transitional saving for a pilot scheme in Orange transferring parts of the old Act’s coverage to the new Act until 31 December 1998 or until revoked by order (Schedule 2, cl 3). That is recorded in the source as a saving following the repeal of the prior Act (s 47 and Schedule 2).
The source document’s annotations are the only amendment history material present in the Act text supplied. No other amendment instruments, dates, or legislative history beyond these inline annotations are stated in the source.
Litigation history
The text supplied contains no judicial decisions, reported litigation citations, or references to case law construing any provision of this Act. The statutory text itself cross-references other Acts and prescribes administrative processes and duties, but it does not record any judicial interpretations or litigation outcomes.
Consequently:
There are no cases named or cited in the Act as printed in the supplied source. The only cross-references are to statutes including the Children and Young Persons (Care and Protection) Act 1998, the Local Government Act 1993, the Criminal Procedure Act 1986, the Firearms Act 1996 and the Weapons Prohibition Act 1998.
The source does include amendment annotations and transitional provisions but does not record any judicial review, appeals or court decisions that interpret the Act’s terms, such as the reasonable-grounds test in s 18(b) or the "best interests" standard in ss 6 and 21.
Practitioners requiring an account of judicial interpretation, case law on police removals, or precedent on parental undertakings will need to consult external databases and court reports. The Act as given does require courts and police to exercise discretion and to have regard to best-interests factors and to consider other statutory regimes (s 20(3)), which are common focal points in litigation, but those litigation materials are not contained in the supplied text.
In short, the supplied statute offers no litigation history. Any analysis of how courts have interpreted provisions such as "reasonable grounds", "responsible adult", "best interests", the interaction with mandatory reporting under the Children and Young Persons Act, or the limits on police removals would require case law research external to the text provided.
Gotchas
The Act contains several drafting features and design choices that create practical pitfalls and operational constraints. These are concrete, source-grounded issues that advisers and implementers should note.
Age threshold mismatch
The general statutory definition of child is a person under 18 years (s 3). Division 2 applies only to persons believed on reasonable grounds to be under 16 (s 18(b)). This means police removal powers in operational areas do not extend to 16- and 17-year-olds, while other Part 2 parental-responsibility powers at court may apply up to 18. Practitioners should be careful in distinguishing which provisions apply to which age cohorts, and in documenting the officer’s belief about age under s 18(b).
Operational area precondition
Police removal powers in Division 2 apply only within an operational area declared by the Attorney General (ss 13-14, 18). An operational-area declaration is a prerequisite; absent a declared area, the removal powers do not apply. The Attorney General must be satisfied that adequate crime prevention or youth support initiatives will be available before an order takes effect (s 14(3)). This creates a two-step administrative gate, which can lead to gaps in enforcement where an area is not declared, and potential delay between council request and declaration. The declaration also takes effect on a day specified in the order that must be later than publication (s 15(1)), so timing matters.
Discretion and evidentiary burden
Many trigger points depend on what a police officer "believes on reasonable grounds" or acts as "satisfied" that a child may safely be left (ss 18(b), 19(1), 22(2)(b)). Those are subjective-demonstrable standards. Recording the factual basis for the belief or satisfaction will be important because enforcement is summary and the statutory powers are limited to operational areas.
Undefined terms and practical uncertainty
The Act uses terms such as "responsible adult", "at risk", "best interests" and "reasonable grounds" without exhaustive definitions beyond statutory examples. For example s 19(3) lists examples of being at risk but does not exhaustively define it. Police action must still respect the statutory limits, for example not leaving a child at a police station (s 23(1)) and considering the child’s volunteered wishes before escorting (s 23(3)).
Placement ceilings and legal limbo
When police place a child with an approved person under s 22(5)(b), that placement is time-limited to a maximum of 24 hours or a shorter period prescribed by regulation (s 22(6)). If the child has not been returned to a parent or carer by the end of the period, the child is to be released or dealt with according to law (s 22(7)). The phrase "dealt with according to law" is open-ended and requires coordination with child-protection laws or criminal process, potentially leaving brief periods of legal uncertainty.
Restrictions on police station use
Police cannot escort or leave a child at a police station in any circumstances (s 23(1)). This strict bar requires officers to secure alternatives which may not be immediately available, and to document attempts to find suitable parents, carers, close relatives or approved persons.
Notification exception
Police must notify parents or carers if they place a child with someone other than parent or carer or leave them in the parent's absence if practicable, but there is an exception where the child volunteers that they do not want the parent notified and the officer is satisfied that non-notification is in the child’s best interests (s 25(1)-(2)). This creates a potential tension between parental rights to know the child’s whereabouts and the child’s autonomy; officers must record and justify their satisfaction that non-notification serves the child’s best interests.
Cultural-placement obligations and practical constraints
The Director-General must take into account placement principles for Aboriginal children and cultural heritage considerations for non-Aboriginal children when designating approved persons (s 24(2)-(3)). In practice, availability of culturally appropriate approved persons at short notice may be limited, which can complicate compliance with those statutory obligations.
Regulatory and Commissioner directions shaping operational limits
The Act authorises regulations to limit circumstances and regulate the manner of police functions under Division 2 (s 26(2)) and allows Commissioner directions to affect how officers act (s 26(1)). Implementing agencies must track and comply with any such regulations or directions which may substantially change operational practice.
Financial assistance is discretionary and appropriation-dependent
The Attorney General "may" grant financial assistance for initiatives under a safer community compact and that assistance is to be provided out of appropriated money or money otherwise legally available (s 40(2)-(3)). Councils cannot rely on automatic funding and must plan for the possibility that approval will not be followed by grants, or that grants will be constrained by appropriation cycles.
Statutory review scheduling
The Attorney General must review the Act as soon as possible after three years from assent and table a report within 12 months thereafter (s 50). If implementation delays or late commencement occur, the review timetable can create compressed evaluation windows.
Taken together, these provisions create precise legal opportunities and operational constraints that require close attention to age thresholds, the existence and timing of operational-area declarations, careful documentation of officer beliefs and decisions, and contingency planning for culturally appropriate placements and funding uncertainties.
How to comply
This section sets out practical, source-grounded steps for each principal actor to meet statutory duties and reduce legal and operational risk. References to sections are provided to show the statutory basis for each step.
Councils
Before requesting an operational-area declaration, ensure community consultation has been reasonably undertaken. Section 14(4)(a) obliges the Attorney General to have regard to whether the council has adequately informed and consulted the local community, including young people and the Aboriginal community. Keep records and minutes of consultations, community submissions and any youth-targeted engagement.
Prepare a draft local crime prevention plan consistent with any Attorney General guidelines under s 32, and include matters listed in s 33 such as youth development strategies, parental education and Aboriginal community development where relevant. Exhibit the draft for not less than 28 days and allow at least 42 days for submissions after exhibition as required by s 34(2)-(3). Retain evidence of public notices and the exhibited materials (s 34(4)).
When adopting a plan, act under s 35 and publish adopted plans and any amendments in a local newspaper and the Gazette within 14 days (s 38(1)-(2)). Maintain records for reporting obligations under s 41 and s 15(4) should the Attorney General request evaluation of implementation and effectiveness.
If seeking financial assistance under an approved compact, prepare a budget and supporting documentation to show how funds will be used for initiatives and for developing or monitoring the compact, consistent with the definition of financial assistance in s 40(4).
Attorney General and Department
Before declaring an operational area, obtain evidence that adequate crime prevention or youth support initiatives will be available in the area as required by s 14(3). Consult the Minister for Community Services and the Minister for Police per s 14(5). Record the rationale against the factors listed in s 14(4) and s 14(4)(e) advice about police operational capacity.
For approval of safer community compacts, evaluate the draft or adopted plan against s 39(2) factors and consult the Minister for Community Services and the Minister for Police as required (s 39(3)). Document decisions and grounds for approval or refusal and retain records showing consistency with any s 32 guidelines.
If granting financial assistance under s 40(2), ensure funds are appropriated or otherwise legally available (s 40(3)). Establish monitoring and reporting requirements linked to s 41 and s 44 so councils provide data on implementation and complaint trends.
Police forces and officers
Confirm an operational area is in force before applying Division 2 powers (s 18). Train officers to document the facts supporting a reasonable-ground belief about age (s 18(b)) and the risk factors under s 19(3). Use body-worn video and contemporaneous incident reports to record grounds for decisions to remove and escort.
Before taking action under s 22, consider whether the Children and Young Persons (Care and Protection) Act 1998 would be more appropriate as required by s 20(3). Apply mandatory-reporting duties under s 20(4) when exercising Division 2 functions.
When escorting a child, use best endeavours to return them to a parent, carer or other responsible adult (s 21(1)) and document attempts and outcomes. Do not leave a child at a police station in any circumstances (s 23(1)). If leaving a child at a residence, ensure a responsible adult is present and willing to care for the child, or that the officer is satisfied it is safe to leave the child in their absence (s 22(2)(a)-(b)).
If placing a child with a close relative or approved person, verify willingness and capacity; approved-person placements are time-limited to 24 hours or a shorter prescribed period (s 22(6)). Record identification of the approved person, their designation status, and contact details.
Apply s 25 notification rules: notify the parent or carer when practicable unless the child volunteers they do not want notification and the officer is satisfied non-notification is in the child’s best interests (s 25(1)-(2)). Record any volunteered wishes and the officer’s assessment of best interests.
Follow Commissioner directions and any regulations made under s 26(1)-(2) and s 46 to ensure compliance with procedural limitations and prescribed methods of exercise of powers.
Department of Community Services and Director-General
Maintain and publish, internally, lists of approved persons designated under s 24, including notes on cultural suitability per s 24(2)-(3). Establish vetting, induction and support processes that allow for timely placement of children when police cannot return them to parents or carers (s 22(5)(a), (8)).
When receiving a child under s 22(5)(a), undertake placement processes consistent with the Children and Young Persons (Care and Protection) Act 1998 as permitted by s 22(8).
Courts and legal practitioners
When courts consider parental undertakings or security, apply the statutory limits on duration (s 9(1)) and ensure parents required to give security have had the opportunity to be heard (s 9(2)). When imposing undertakings on children under s 8, observe constraints on variation and cancellation under s 8(3)-(4) and ensure that if an undertaking is cancelled, any subsequent penalty is one the court could otherwise have imposed.
When courts require attendance by parents or other persons, use the rules of court enabling warrants and subpoenas for attendance as applied by s 12(3) through the Criminal Procedure Act provisions.
Record keeping and regulatory compliance
Implement record-keeping compliant with s 46(2)(c) and any regulations. Maintain auditable logs of community consultation, exhibition and submissions for local crime prevention plans (s 34), operational-area requests and Attorney General consultations (s 14, s 16), placement decisions and notification outcomes (ss 22, 25), and reporting and monitoring submissions to the Attorney General (ss 15(4), 41, 44).
Monitor for regulations and Commissioner directions that may limit how powers are exercised (s 26(2), s 46), and ensure internal policy is updated promptly to reflect regulatory change.
Contingency planning
Because financial assistance from the Attorney General is discretionary and subject to appropriations (s 40(2)-(3)), councils should develop implementation plans that can scale depending on funding. Maintain a register of available approved persons and culturally appropriate placements to avoid delays when police require short-term placements (s 24).
Anticipate the statutory review at three years after assent (s 50) by compiling implementation metrics and lessons learned to inform the review report.
Following these steps will align operational practice to the Act’s procedural prerequisites and discretionary frameworks cited in the statutory text.
operational area means an area in respect of which a declaration under section 14 is in force.
parent of a child includes—
(a) a guardian of the child, and
(b) a person who has custody of the child,
but does not include the Minister administering the Children and Young Persons (Care and Protection) Act 1998 or the Director-General of the Department of Community Services, or the father or mother of the child if the father or mother has neither guardianship nor custody of the child.
public place means—
(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public, whether or not on payment of money or other consideration, whether or not it is ordinarily so open or used and whether or not the public to whom it is open consists of only a limited class of persons.
safer community compact—see section 39.
Torres Strait Islander means a descendant of an indigenous inhabitant of the Torres Strait Islands.
Torres Strait Islander child means a child of a Torres Strait Islander.
s 3: Am 1998 No 158, Sch 2.6 [1] [2]; 2012 No 60, Sch 2.
4 Operation of Act
4 Operation of Act
4 Operation of Act
(1) This Act does not affect any functions (including functions of a court or police officer) that may be exercised apart from this Act.
(2) This Act extends to acts, matters and things occurring, and proceedings instituted, before the commencement of this section.
5 Notes
5 Notes
5 Notes
Notes included in this Act do not form part of this Act.
Part 2 Parental responsibility
Part 2 Parental responsibility
Part 2 Parental responsibility
6 Guiding principles for courts
6 Guiding principles for courts
6 Guiding principles for courts
(1) In considering how a child should be dealt with under this Part, a court is to have regard to whether the taking of the action under consideration is in the best interests of the child.
(2) Without limiting the matters that the court may take into account for the purposes of subsection (1), the court is to consider—
(a) the nature of the relationship of the child with the child’s parent or parents, and
(b) the attitude to the child, and to the responsibilities of parenthood, demonstrated by the child’s parent or parents, and
(c) the welfare, status and circumstances of the child and of the child’s parent or parents.
7 Attendance of parents and other persons at proceedings
7 Attendance of parents and other persons at proceedings
7 Attendance of parents and other persons at proceedings
(1) A court exercising criminal jurisdiction in relation to a child may require the attendance, at the place at which the proceedings are being or are to be conducted, of—
(a) one or more of the child’s parents, or
(b) if the child is in statutory out-of-home care under which the Minister has parental responsibility for the child—
(i) the Minister, or
(ii) a representative of the Minister, including an officer or employee of a designated agency, or
(c) if the child is in statutory out-of-home care under which the Secretary has parental responsibility for the child—
(i) the Secretary, or
(ii) a representative of the Secretary, including an officer or employee of a designated agency.
(2) For subsection (1)(a), the court may specify which parent or parents are to attend.
(3) In this section—
designated agency has the same meaning as in the Children’s Guardian Act 2019.
s 7: Subst 2022 No 67, Sch 2.2.
8 Undertakings by children
8 Undertakings by children
8 Undertakings by children
(1) A court that finds a child guilty of an offence may, instead of dealing with the child in any other way permitted by law, release the child on condition that the child give an undertaking—
(a) to submit to parental or other supervision as ordered by the court, or
(b) to participate in a specified program, or to attend a specified activity centre, or
(c) to reside with a parent or other person, as directed by the court, or
(d) to do such other thing as may be specified by the court.
(2) If it appears to a court that a child has failed to comply with an undertaking given by the child under this section, the court may direct that the child, and one or more parents of the child, be served with a notice to appear before the court at a specified time and place. The court may specify which parents are to attend.
(3) If the court is satisfied that the child has failed to comply with the undertaking concerned, the court—
(a) may cancel the undertaking, or
(b) may continue or vary the undertaking, but must not extend the period of the undertaking.
(4) If the court cancels the undertaking, the court—
(a) may release the child, or
(b) may impose any penalty that it could have imposed, or exercise any other function that it could have exercised, on finding the child guilty of the offence concerned.
9 Undertakings by parents
9 Undertakings by parents
9 Undertakings by parents
(1) A court that finds a child guilty of an offence may, instead of dealing with the child in any other way permitted by law, release the child on condition—
(a) that one or more parents of the child give an undertaking with or without conditions to do or refrain from doing the act or acts specified in the undertaking for a period not exceeding 6 months, or in exceptional circumstances 12 months, but in no case extending beyond the child’s eighteenth birthday, or
(b) that one or more parents of the child give a supplementary undertaking to the court—
(i) to guarantee the child’s compliance with any undertaking given under section 8, and
(ii) to take specified action to assist the child’s development and to guard against the commission by the child of any further offences, and
(iii) to report at intervals stated in the supplementary undertaking on the child’s progress, or
(c) that one or more parents of the child give security (whether by deposit of money or otherwise) for the good behaviour of the child for a period not exceeding 6 months, or in exceptional circumstances 12 months, but in no case extending beyond the child’s eighteenth birthday.
(2) No security is to be required from a parent under this section unless the parent has been required to attend before the court and has had an opportunity to be heard.
(3) A court must not take any action against a child for the failure of a parent of the child to comply with an undertaking under this section.
(4) Such part of any security required under this section as the court may determine is to be forfeited to the Crown if the person giving it fails to fulfil the obligation to ensure the child is of good behaviour.
(5) The court may specify which parent or parents are subject to any condition imposed under subsection (1).
10 Family counselling
10 Family counselling
10 Family counselling
A court may require a child that it finds guilty of an offence and the child’s parent or parents to undergo such specified counselling as the court considers would be beneficial in assisting the progress of the child.
11 Parents contributing to children’s offences
11 Parents contributing to children’s offences
11 Parents contributing to children’s offences
(1) A parent who, by wilful default, has contributed directly or in a material respect to the commission of an offence of which the child has been found guilty, is guilty of an offence.
Maximum penalty—10 penalty units.
(2) The court may require a parent convicted of an offence under subsection (1) to undergo counselling or do such other things that would in the opinion of the court advance the welfare and best interests of the child instead of, or in addition to, imposing a penalty.
12 Ancillary provisions
12 Ancillary provisions
12 Ancillary provisions
(1) Rules of court may be made for or with respect to the attendance of parents and children required under this Act to attend a place and undertakings required to be given under this Part.
(2) (Repealed)
(3) Without affecting the generality of subsection (1), the provisions of Parts 3 and 4 of Chapter 4 of the Criminal Procedure Act 1986 relating to warrants and subpoenas for the attendance of witnesses in proceedings before the Local Court for offences punishable on summary conviction apply to the attendance of any person required under this Act to attend (before the Local Court or the Children’s Court) at a place in the same way as those provisions apply to the attendance of witnesses in proceedings for such offences.
(4) A court may exercise all or any one or more of the functions under sections 7, 8, 9 and 10 in any particular matter.
s 12: Am 2001 No 121, Sch 2.40 [1]–[4]; 2007 No 94, Sch 2.
Part 3 Welfare of children in public places
Part 3 Welfare of children in public places
Part 3 Welfare of children in public places
Division 1 Declaration of operational area
Division 1 Declaration of operational area
Division 1 Declaration of operational area
13 Object of Division
13 Object of Division
13 Object of Division
The object of this Division is to provide for the declaration of the areas (or portions of areas) in which the powers conferred by Division 2 of this Part on police officers to remove children from public places may be exercised.
Note—
An area is defined in section 3 to mean a local government area and to include a part of a local government area.
14 Operational area
14 Operational area
14 Operational area
(1) The council for an area may request the Attorney General to declare the area to be an operational area for the purposes of Division 2 of this Part.
(2) The Attorney General may, by order, declare an area described in the order to be an operational area for the purposes of Division 2 of this Part in accordance with a request under subsection (1), or may declare a portion only of that area to be an operational area.
(3) The Attorney General must not make an order declaring an area (or portion of an area) to be an operational area unless the Attorney General is satisfied that adequate crime prevention or youth support initiatives will be available in the area before the order takes effect.
(4) In considering a request under subsection (1) to declare an area (or a portion of an area) to be an operational area, the Attorney General is to have regard to the following—
(a) whether the council has adequately informed and consulted with the local community concerned, including young people and the Aboriginal community, and the views expressed,
(b) the extent and nature of crime in the area,
(c) the nature of any crime prevention or youth support initiatives that have been undertaken in the area, including whether any local crime prevention plan or safer community compact is in force for the area, or is in the course of being prepared by the council for the area, and the contents or proposed contents of that plan or compact,
(d) the effect of making the declaration on young people in the area, including the availability of safe and appropriate recreational amenities for young people in the area,
(e) the practicality of applying Division 2 of this Part in the area, including (but not limited to) any advice given by the Commissioner of Police relating to the operational capacity of police to carry out functions under the Division in the area,
(f) without limiting paragraph (e), whether appropriate arrangements have been made, or are able to be made, to cater for the needs of young people who are removed from public places in the area under Division 2 of this Part and who are not able to be taken home, including culturally appropriate arrangements for Aboriginal and Torres Strait Islander young people,
(g) whether the council has undertaken steps to include young people’s needs in its local planning processes.
(5) The Attorney General is to consult with the Minister for Community Services and the Minister for Police before declaring an area (or a portion of an area) to be an operational area.
15 Duration of declaration
15 Duration of declaration
15 Duration of declaration
(1) An order declaring an area (or a portion of an area) to be an operational area takes effect on a day specified in the order, being a day that is later than the day it is published in accordance with section 17.
(2) Unless it is sooner revoked, the declaration of an operational area remains in force for such period as is specified in the order.
(3) The declaration of a portion of an area as an operational area does not prevent the declaration of further portions of the same area as operational areas.
(4) The council of an area (or a portion of an area) declared to be an operational area must report to the Attorney General when requested to do so by the Attorney General on the implementation, and effectiveness, of the powers conferred by Division 2 of this Part.
16 Amendment or revocation of declaration
16 Amendment or revocation of declaration
16 Amendment or revocation of dec
This is an opening excerpt, not the complete document.