Part 1
Preliminary
Part 1 Preliminary
Part 1 Preliminary
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New South Wales act
What this law does (mechanics, in plain terms)
Creates and empowers the Office of the Children’s Guardian (the Guardian) and sets out the Guardian’s functions, term and independence (see Part 8, especially ss 115–128).
Establishes the Child Safe Scheme. It: defines ten Child Safe Standards that organisations must implement (s 8C); requires heads of child‑facing organisations to implement systems, policies and processes (s 8D); allows the Guardian to monitor, investigate and enforce compliance with those standards (Divisions 4–6 of Part 3A, especially ss 8V–8Z); and gives the Guardian power to issue compliance notices or accept enforceable undertakings with public disclosure and civil penalties (Part 9A, ss 152A–152J).
Requires certain government agencies (“prescribed agencies”) to prepare, submit for approval and publicly publish child safe action plans describing how they will support child safety across the organisations they fund or regulate (ss 8F–8M).
Establishes and runs a reportable conduct scheme. People who become aware of suspected child‑related misconduct by employees of covered entities must report it to the entity head; the entity must notify the Guardian (usually within 7 business days) and investigate. The Guardian can monitor, review or itself investigate, make findings and recommend or require action (Part 4: ss 27, 29, 34, 43, 46, 49–52).
Creates registers and accreditation regimes relevant to out‑of‑home care and adoption service providers, and a residential care workers register and carers register (ss 72–75, Schedule 3A and 3B, s 85). These registers can hold entries about applicants, authorised carers, residential care workers and flags for ongoing reportable conduct investigations (ss 85–88).
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Direct links to the current provisions in Children’s Guardian Act 2019.
Part 1 Preliminary
2 Commencement
(1) Subject to subsection (2), this Act commences on 1 March 2020.
(2) The following provisions commence on a day or days to be appointed by proclamation—
(a), (b) (Repealed)
(c) items 5 and 6 of Schedule 5.10.
s 2: Am 2025 No 46, Sch 1[1] [2].
Part 2 Application and interpretation
Division 1 Application of Act
3 Children to whom this Act applies
The functions conferred or imposed by this Act and the regulations may be exercised in relation to children—
(a) who ordinarily live in New South Wales, or
(b) who do not ordinarily live in New South Wales but who are present in New South Wales, or
(c) who are—
(i) for Part 4—subject to an event or circumstance, whether occurring in New South Wales or elsewhere, that is committed by a person who is an employee of a relevant entity (within the meaning of Part 4) and that gives rise to a report (within the meaning of Part 4), or
(ii) otherwise—subject to an event or circumstance occurring in New South Wales that gives rise to a report.
Division 2 Interpretation
4 Definitions
(1) The Dictionary in Schedule 6 defines certain terms used in this Act.
Note.
The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes and examples included in this Act do not form part of this Act.
5 References to “commencement”
(1) In this Act, a reference to commencement for this Act or a provision of this Act is a reference to the time this Act or provision comes into operation.
(2) In a provision of this Act, a reference to the commencement without indicating a particular Act or provision is a reference to the commencement of the provision in which the reference occurs.
Part 3 Objects and principles
6 Main object of Act
The main object of this Act is to protect children by providing for the role and functions of the office of the Children’s Guardian, including—
(a) promoting the quality of organisations and persons providing services to children, and
(b) regulating those organisations and persons in providing those services, and
(c) embedding the Child Safe Standards as the primary framework that guides child safe practice in organisations in New South Wales.
s 6: Am 2021 No 30, Sch 1[1].
7 Paramount consideration
The safety, welfare and wellbeing of children, including protecting children from child abuse, is the paramount consideration in decision-making under this Act and the regulations and in the operation of this Act and the regulations generally.
8 Guiding principles
The guiding principles to be applied in administering this Act and the regulations are—
(a) if a child is able to form views on a matter concerning the child’s safety, welfare and wellbeing—
(i) the child must be given an opportunity to express the views freely, and
(ii) the views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, and
(b) in all actions taken and decisions made under this Act and the regulations that significantly affect a child, account must be taken of the culture, disability, language, religion, gender identity and sexuality of—
(i) the child, and
(ii) if relevant, the person with parental responsibility for the child, and
(c) in deciding what action is necessary to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and the child’s family that is also consistent with the paramount consideration, and
(d) in decision-making under this Act and the regulations and the investigation or monitoring of persons, the Children’s Guardian must observe the principles of natural justice and ensure procedural fairness, and
(e) in decision-making under this Act and the regulations in relation to an Aboriginal child or a Torres Strait Islander child—
(i) the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles set out in the Children and Young Persons (Care and Protection) Act 1998, section 13, and
(ii) the embedding of connection to family and community with the ultimate goal of the child feeling safe and secure in their identity, culture and community, and
(e1) in decision-making under this Act, respect for cultural and social difference must be considered in the provision of child-related services, and
(e2) the need to consult with the Aboriginal and Torres Strait Islander community to consider and address the impact of policies, practices and procedures on Aboriginal and Torres Strait Islander children, the children’s families and communities and Aboriginal and Torres Strait Islander community-controlled organisations, and
(f) if a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment.
s 8: Am 2021 No 30, Sch 1[2]; 2025 No 46, Sch 1[3].
Part 3A Child safe scheme
pt 3A: Ins 2021 No 30, Sch 1[3].
8A Objects of Part
The objects of this Part are for the Children’s Guardian to protect children from harm by—
(a) adopting the Child Safe Standards as the primary framework that guides child safe practice, and
(b) implementing regulatory approaches that—
(i) improve systems for the prevention, identification, response to and reporting of child abuse in child safe organisations through the implementation of the Child Safe Standards, and
(ii) assist child safe organisations to implement the Child Safe Standards by raising awareness and providing guidance, training and education, and
(iii) monitor and report on the compliance of child safe organisations with the Child Safe Standards, and
(iv) enforce compliance with the Child Safe Standards, and
(v) provide for the investigation of complaints about a child safe organisation’s—
(A) implementation of the Child Safe Standards, or
(B) compliance with the Child Safe Standards, or
(C) compliance with recommendations contained in a monitoring assessment report, and
(vi) establish child safe action plans with prescribed agencies, and
(vii) provide for the ongoing exchange of information about risks to child safety in organisations between government agencies, both in New South Wales and in other States and Territories, with child safety responsibilities.
s 8A: Ins 2021 No 30, Sch 1[3].
8AA Consistency with Royal Commission Report recommending the Child Safe Standards
(1) Implementation of the Child Safe Standards by child safe organisations is to be consistent with Royal Commission recommendations.
(2) Where a Child Safe Standard can be implemented in more than 1 way, implementation that most closely reflects the Royal Commission recommendations is to be preferred.
s 8AA: Ins 2021 No 30, Sch 1[3].
8AB Ministerial guidelines
(1) The Minister may issue guidelines to the Children’s Guardian about the way the Children’s Guardian is to—
(a) oversee the implementation of the Child Safe Standards by child safe organisations,
(b) enforce the Child Safe Standards within child safe organisations,
(c) establish child safe action plans with prescribed agencies.
(2) Despite section 128(3), the Children’s Guardian must, when exercising functions concerning the Child Safe Standards, act in a way that is consistent with guidelines issued by the Minister under subsection (1).
s 8AB: Ins 2021 No 30, Sch 1[3].
8AC (Repealed)
8B Definitions
In this Part—
child safe action plan—see section 8F.
monitoring assessment report means a report issued by the Children’s Guardian under section 8W.
prescribed agency—see section 8G.
related body, for a prescribed agency—see section 8H.
religious body has the same meaning as in section 15A.
Royal Commission recommendations means the Final Report Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
s 8B: Ins 2021 No 30, Sch 1[3].
8C Meaning of “Child Safe Standards”
The Child Safe Standards are—
- Child safety is embedded in organisational leadership, governance and culture.
- Children participate in decisions affecting them and are taken seriously.
- Families and communities are informed and involved.
- Equity is upheld, and diverse needs are taken into account.
- People working with children are suitable and supported.
- Processes to respond to complaints of child abuse are child focused.
- Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training.
- Physical and online environments minimise the opportunity for abuse to occur.
- Implementation of the Child Safe Standards is continuously reviewed and improved.
- Policies and procedures document how the organisation is child safe.
s 8C: Ins 2021 No 30, Sch 1[3].
8D Systems, policies and processes
(1) The head of a child safe organisation must ensure the organisation implements the Child Safe Standards through systems, policies and processes which may include, but are not limited to, the following—
(a) a statement of the organisation’s commitment to child safety,
(b) a child safe policy,
(c) a code of conduct applying to the following—
(i) employees,
(ii) management, however described,
(iii) contractors,
(iv) volunteers,
(d) a complaint management policy and procedure,
(e) a human resources policy,
(f) a risk management plan.
(2) The head of a child safe organisation, if the organisation is a relevant entity under Part 4, must ensure the organisation implements a reportable conduct policy that addresses the matters in section 54(2).
(3) The head of a child safe organisation must ensure the systems, policies and processes implemented by the organisation are continuously reviewed and updated to reflect—
(a) the Child Safe Standards, and
(b) recommendations made to the organisation by the Children’s Guardian in—
(i) a monitoring assessment report under section 8W, or
(ii) an investigation report under section 8Z, and
(c) enforcement measures taken under Part 9A against the organisation by the Children’s Guardian.
s 8D: Ins 2021 No 30, Sch 1[3]. Am 2025 No 46, Sch 1[5].
8DA Codes of practice
(1) The regulations may prescribe codes of practice for the purposes of ensuring entities comply with the Child Safe Standards.
(2) A code of practice may apply only to the following entities—
(a) a designated agency,
(b) an adoption service provider,
(c) an entity providing specialised substitute residential care,
(d) an entity prescribed by the regulations.
(3) A code of practice must specify the entities to which it applies.
(4) A code of practice for entities providing specialised substitute residential care must require each entity to complete, within the time specified in the code of practice, a self-assessment of the entity’s compliance with the Child Safe Standards.
(5) An entity that fails, without reasonable excuse, to complete the self-assessment within the time specified in the code of practice commits an offence.
Maximum penalty—10 penalty units.
(6) A code of practice may include the following—
(a) the steps that must be taken to implement the Child Safe Standards,
(b) the outcomes that will indicate compliance with the Child Safe Standards,
(c) other matters relevant to compliance with the Child Safe Standards.
(7) A code of practice that applies to a designated agency or an adoption service provider may also include steps that must be taken to obtain and maintain accreditation under this Act.
(8) An entity must comply with a code of practice that applies to the entity.
Note—
This provision makes the code of practice a mandatory prescriptive requirement for compliance with the Child Safe Standards.
(9) The failure by an entity to comply with a code of practice is grounds for the Children’s Guardian to—
(a) conduct an investigation under Division 6, and
(b) following the investigation, if the Children’s Guardian considers it appropriate—issue a compliance notice to the entity under Part 9A.
s 8DA: Ins 2022 No 33, Sch 1[1].
8E Children’s Guardian may require information about systems, policies and processes
(1) The Children’s Guardian may, at any time by written notice, require the head of a child safe organisation to give the Children’s Guardian, within the reasonable time stated in the notice but not less than 7 days, information about the organisation’s systems, policies and processes under section 8D.
(2) If the organisation does not, without reasonable excuse, give the Children’s Guardian the information required under subsection (1), the Children’s Guardian may—
(a) commence an investigation under Division 6, and
(b) publish the following on the Office of the Children’s Guardian’s website—
(i) the name of the organisation,
(ii) that the organisation has failed to provide the information required by the Children’s Guardian under this section.
s 8E: Ins 2021 No 30, Sch 1[3].
Division 3 Child safe action plans
pt 3A, div 3: Ins 2021 No 30, Sch 1[3].
8F Meaning of “child safe action plan”
A child safe action plan is a plan that contains the strategies a prescribed agency will take, both in the services it provides and with related bodies, to—
(a) build awareness in the community about the importance of child safety in child safe organisations, and
(b) build the capability of child safe organisations to implement the Child Safe Standards, and
(c) improve the safety of children by implementing the Child Safe Standards.
s 8F: Ins 2021 No 30, Sch 1[3].
8G Meaning of “prescribed agency”
Prescribed agency means each of the following—
(a) the Department of Communities and Justice,
(b) the Office of Sport within the Department of Communities and Justice,
(c) the Department of Education,
(d) the NSW Education Standards Authority,
(e) the Ministry of Health,
(f) the Department of Planning, Industry and Environment, limited to functions undertaken by the Office of Local Government,
(g) the Inspector of Custodial Services,
(h) a NSW government agency prescribed by the regulations for the purposes of this section.
s 8G: Ins 2021 No 30, Sch 1[3]. Am 2022 No 26, Sch 2.6[1].
8H Meaning of “related body”
Related body, for a prescribed agency, means a child safe organisation the prescribed agency funds or regulates.
s 8H: Ins 2021 No 30, Sch 1[3].
8I Prescribed agencies to develop and implement plans
(1) A prescribed agency must develop and implement a child safe action plan within—
(a) 12 months of becoming a prescribed agency, or
(b) a longer period approved in writing by the Children’s Guardian.
(2) A child safe action plan must cover the full scope of the agency’s child related operations unless—
(a) the Children’s Guardian gives written approval for the agency to develop and implement an additional plan for a specified area of operations, and
(b) the additional plan addresses only the parts of the agency’s operations specified in the approval.
s 8I: Ins 2021 No 30, Sch 1[3].
8J Consultation
In developing its child safe action plan, a prescribed agency must—
(a) consult with the Children’s Guardian, and
(b) consult with related bodies and any other entity or individual who, in the agency’s opinion, is likely to be directly affected by the plan, and
(c) if the agency or related bodies provide services to Aboriginal children—consult with 1 or more Aboriginal controlled entities of a class prescribed by the regulations for this section.
s 8J: Ins 2021 No 30, Sch 1[3].
8K Plans to be submitted
(1) A prescribed agency must submit its child safe action plan to the Children’s Guardian for review and approval.
(2) Following its review of an agency’s plan, the Children’s Guardian must—
(a) approve the plan, or
(b) provide comments to the agency recommending amendments to the plan that the Children’s Guardian considers necessary before it can be approved.
(3) Following its review of an agency’s plan, the Children’s Guardian may report publicly, whether by its annual report or another report, on the plan and its implementation.
s 8K: Ins 2021 No 30, Sch 1[3].
8L Plans to be publicly available
(1) Following approval of a prescribed agency’s child safe action plan, the agency must make the plan publicly available—
(a) on the agency’s website, and
(b) in another way prescribed by the regulations.
(2) The Children’s Guardian may, on the Office of the Children’s Guardian’s website, provide a link to an agency’s child safe action plan.
s 8L: Ins 2021 No 30, Sch 1[3].
8M Progress reports
(1) If required to do so by written notice from the Children’s Guardian, a prescribed agency must provide a progress report on the agency’s implementation of its child safe action plan.
(2) An agency’s report is to include information that demonstrates how the agency is working with related bodies to—
(a) build awareness in the community about the importance of child safety in child safe organisations, and
(b) build the capability of related bodies to implement the Child Safe Standards, and
(c) improve the safety of children by implementing the Child Safe Standards by related bodies.
(3) A prescribed agency must provide its report to the Children’s Guardian within—
(a) 90 days of receiving the written notice, or
(b) a longer period approved in writing by the Children’s Guardian.
s 8M: Ins 2021 No 30, Sch 1[3].
8N Annual reporting
A prescribed agency must include in its annual reporting information prepared under the Government Sector Finance Act 2018—
(a) a link to the agency’s child safe action plan, and
(b) the agency’s assessment of the effectiveness of the plan in promoting and supporting the adoption and implementation of the Child Safe Standards by related bodies.
s 8N: Ins 2021 No 30, Sch 1[3]. Am 2023 No 35, Sch 3.1.
8O Child safe action plans to be remade
(1) A prescribed agency must review and remake its child safe action plan at least every 4 years.
(2) This Division applies to a remade plan in the same way as it applies to an original plan.
s 8O: Ins 2021 No 30, Sch 1[3].
Division 4 Capability building
pt 3A, div 4: Ins 2021 No 30, Sch 1[3].
8P Purpose
This Division deals with the Children’s Guardian’s responsibility to work collaboratively with child safe organisations, government agencies and the broader community to—
(a) raise awareness about child safety, and
(b) build within child safe organisations both knowledge of the Child Safe Standards and the skills to implement them, and
(c) promote the implementation of the Child Safe Standards by child safe organisations.
s 8P: Ins 2021 No 30, Sch 1[3].
8Q Guidelines for child safe organisations
(1) The Children’s Guardian may develop guidelines to—
(a) assist child safe organisations to implement the Child Safe Standards, and
(b) assist children, their families and other members of the community to raise concerns and make complaints about a child safe organisation, and
(c) provide guidance on another matter that the Children’s Guardian identifies as appropriate.
(2) A guideline developed under this section may include templates that can be used by child safe organisations in developing systems, policies and processes that implement the Child Safe Standards.
(3) A guideline developed under this section must be published on the Office of the Children’s Guardian’s website.
s 8Q: Ins 2021 No 30, Sch 1[3].
8R Capability building for prescribed agencies
(1) The Children’s Guardian may develop and make publicly available—
(a) guidelines, including templates, to assist prescribed agencies to develop child safe action plans, and
(b) assessment criteria for child safe action plans.
(2) A guideline developed under this section must be published on the Office of the Children’s Guardian’s website.
s 8R: Ins 2021 No 30, Sch 1[3].
8S Training
(1) The Children’s Guardian may provide training on—
(a) matters related to the implementation of the Child Safe Standards, and
(b) other matters reasonably related to child safety and the functions of the Children’s Guardian.
(2) The Children’s Guardian may charge fees for training activities to recover the reasonable costs incurred in providing the training.
s 8S: Ins 2021 No 30, Sch 1[3].
8T Resources
The Children’s Guardian may develop and distribute other resources to promote the Child Safe Standards that the Children’s Guardian considers appropriate.
s 8T: Ins 2021 No 30, Sch 1[3].
Division 5 Monitoring
pt 3A, div 5: Ins 2021 No 30, Sch 1[3].
8U Purpose of monitoring
The Children’s Guardian may monitor the operation of a child safe organisation to ensure the organisation is implementing the Child Safe Standards.
s 8U: Ins 2021 No 30, Sch 1[3].
8V Children’s Guardian may monitor implementation of Child Safe Standards
(1) In monitoring a child safe organisation’s implementation of the Child Safe Standards, the Children’s Guardian may do the following—
(a) review the organisation’s systems, processes and policies,
(b) request the head of the organisation to answer questions and provide specified information,
(c) review information held by the Children’s Guardian about the organisation and its employees,
(d) with the consent of the head of the organisation, have an authorised person inspect the organisation’s premises,
(e) direct the head of the organisation to complete a self-assessment of the organisation’s compliance with the Child Safe Standards,
(f) a thing prescribed by the regulations for the purposes of this section.
(2) If the Children’s Guardian directs the head of a child safe organisation to complete a self-assessment under subsection (1)(e), the head of the organisation must comply with the direction.
Maximum penalty—5 penalty units.
(3) A direction under subsection (1)(e) must—
(a) be in writing, and
(b) specify the form of the self-assessment, and
(c) specify the date, not less than 14 days after the date of the direction, by which the self-assessment must be completed and returned to the Children’s Guardian.
s 8V: Ins 2021 No 30, Sch 1[3].
8W Monitoring assessment reports
(1) The Children’s Guardian may, as part of its monitoring activities under section 8V, issue a monitoring assessment report to provide guidance and make recommendations to a child safe organisation.
(2) If the Children’s Guardian makes recommendations to an organisation in a monitoring assessment report, the organisation must respond to the recommendations within the period specified by the Children’s Guardian, being a period of not less than 28 days after the issue of the report.
s 8W: Ins 2021 No 30, Sch 1[3].
Division 6 Investigation
pt 3A, div 6: Ins 2021 No 30, Sch 1[3].
8X When investigation may be conducted
(1) The Children’s Guardian may conduct an investigation into a child safe organisation’s implementation of the Child Safe Standards.
(2) Without limiting subsection (1), the Children’s Guardian may conduct an investigation—
(a) after receiving a complaint, however made or described, about the organisation, or
(b) if the organisation fails to respond to a recommendation made by the Children’s Guardian in a monitoring assessment report or the Children’s Guardian is otherwise not satisfied with the way the organisation responds to a recommendation, or
(c) if for any other reason the Children’s Guardian is concerned the organisation is not implementing the Child Safe Standards.
s 8X: Ins 2021 No 30, Sch 1[3].
8Y Conduct of investigation
(1) Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of conducting an investigation under this Division.
(2) Without limiting the powers of an authorised person, the Children’s Guardian may, when conducting an investigation, do the following—
(a) review the organisation’s records, systems, processes and policies,
(b) require the head of the organisation to answer questions and provide specified information,
(c) review information held by the Children’s Guardian about the organisation and its employees,
(d) have an authorised person inspect the organisation’s premises,
(e) direct the head of the organisation to complete a self-assessment of the organisation’s compliance with the Child Safe Standards,
(f) a thing prescribed by the regulations for the purposes of this section.
(3) For the purposes of an investigation under this Division, the Children’s Guardian may conduct an inquiry.
(4) Schedule 3 provides for the Children’s Guardian’s powers to make or hold an inquiry.
(5) An inquiry under this Division must be carried out in the absence of the public.
s 8Y: Ins 2021 No 30, Sch 1[3].
8Z Investigation report
(1) At the end of an investigation under this Division, the Children’s Guardian must prepare a report that includes—
(a) findings relating to the way the relevant child safe organisation implements the Child Safe Standards, and
(b) the Children’s Guardian’s recommendations, if any, for improvement to the way the organisation implements the Child Safe Standards.
(2) If, as a result of an investigation, the Children’s Guardian decides to take enforcement measures under Part 9A, the report must include—
(a) the decision, and
(b) the reasons for the decision, and
(c) the enforcement measures to be taken.
(3) If the Children’s Guardian makes recommendations to an organisation, the organisation must respond to the recommendations within the period, not less than 28 days after the investigation report is given to the organisation, specified by the Children’s Guardian.
s 8Z: Ins 2021 No 30, Sch 1[3].
Division 7 Children in specialised substitute residential care
pt 3A, div 7: Ins 2022 No 33, Sch 1[2].
8ZA Limit on time to be spent in specialised substitute residential care
(1) A child must not remain in specialised substitute residential care for more than a total of 90 days in a period of 12 months unless the care is provided or supervised by a designated agency.
(2) A child may remain in specialised substitute residential care for more than a total of 180 days in a period of 12 months only if the designated agency providing or supervising the care, or the Children’s Guardian, has ensured there is a plan that addresses the child’s needs under the arrangement.
(3) A child who remains in specialised substitute residential care in contravention of subsection (1) or (2) is taken to be at risk of significant harm for the purposes of the Children and Young Persons (Care and Protection) Act 1998, Chapter 3, Parts 2 and 3.
(4) In deciding whether the contravention is a significant contravention, the Children’s Guardian must have regard to any relevant guidelines issued by the Secretary under section 175.
s 8ZA: Ins 2022 No 33, Sch 1[2].
8ZB Notification of deaths of children in specialised substitute residential care
If a child dies while in specialised substitute residential care, the principal officer of the entity providing the specialised substitute residential care must immediately give notice of the death to the following persons—
(a) the parents of the child, if the parents can reasonably be located,
(b) the Children’s Guardian,
(c) the Coroner.
s 8ZB: Ins 2022 No 33, Sch 1[2].
8ZC Principal officer
(1) In this Act, the principal officer of an entity providing specialised substitute residential care means the person who has the overall supervision of the entity’s arrangements for providing specialised substitute residential care.
(2) Anything done by, or with the approval of, the principal officer of an entity providing specialised substitute residential care in relation to specialised substitute residential care is, for this Act and the regulations, taken to be done by the entity.
(3) Nothing in this section affects the personal liability of the principal officer.
s 8ZC: Ins 2022 No 33, Sch 1[2].
8ZD Regulations
Regulations may be made about specialised substitute residential care.
s 8ZD: Ins 2022 No 33, Sch 1[2].
Part 4 Reportable conduct
9 Objects of Part
The objects of this Part are for the Children’s Guardian to protect children from harm by—
(a) administering a scheme to report and notify a reportable allegation or a conviction considered to be a reportable conviction to the head of a relevant entity and the Children’s Guardian, and
(b) providing oversight and guidance on an investigation undertaken by the head of a relevant entity, and
(c) conducting investigations and inquiries into reports about reportable allegations and convictions considered to be reportable convictions and the response to, and handling of, reports by relevant entities, and
(d) ensuring appropriate action is taken by a relevant entity, and
(e) monitoring a relevant entity’s systems for preventing, detecting and dealing with reportable conduct and reportable convictions, and
(f) providing advice and education to relevant entities to assist relevant entities in detecting and dealing with reportable conduct and reportable convictions.
10 Definitions
In this Part—
assault see section 25.
Children’s Guardian report see section 49.
complaint means—
(a) (Repealed)
(b) a complaint made to the Children’s Guardian under section 28(1) or (2).
contractor includes—
(a) a subcontractor, and
(b) an employee of, or volunteer for, the contractor, and
(c) an employee of, or volunteer for, a third party employer.
employee, of a relevant entity, see section 16.
employment includes engagement of a person as a volunteer or contractor taken to be an employee under this Part.
entity report see section 36(1).
finding of reportable conduct see section 26.
head, of a relevant entity, see section 17.
ill-treatment, of a child, see section 23.
investigation, of a matter, includes any preliminary or other inquiry into, or examination of, the matter, other than a preliminary inquiry under section 44.
investigator means a person conducting an investigation on behalf of the head of a relevant entity, including a delegate.
local government authority see section 15.
neglect, of a child, see section 24.
notification see section 29(2).
public authority see section 14.
relevant entity see section 12.
religious body see section 15A.
report means—
(a) a report made to the head of a relevant entity under section 27(2)(a) or (3)(a), or
(b) if the head of a relevant agency otherwise becomes aware of a matter under section 29(1)(b).
reportable allegation see section 18.
reportable conduct see section 20.
reportable conduct scheme see section 11.
reportable conviction see section 19.
responsible Minister means—
(a) for a relevant entity that is a government sector agency or a person employed in a government sector agency—
(i) the Minister responsible for the agency, or
(ii) if there is more than one Minister responsible for the agency, the Minister who, in the opinion of the Children’s Guardian, is most nearly connected with the conduct of the agency, and
(b) for a relevant entity that is a local government authority—the Minister administering the Local Government Act 1993, and
(c) for a relevant entity, not referred to in paragraph (a) or (b), involved in the administration of an Act or part of an Act—the Minister administering the Act or the relevant part of the Act, and
(d) for a Schedule 1 entity that is not referred to in paragraphs (a)–(c)—
(i) the Minister whose portfolio has, in the opinion of the Children’s Guardian, sufficient funding or regulatory responsibility for the entity to warrant involvement on the Minister’s part in relation to the entity, or
(ii) otherwise—the Minister who is, in the opinion of the Children’s Guardian, a Minister sufficiently concerned with the conduct of the entity, and
(e) for a person employed by a political office holder under Part 2 of the Members of Parliament Staff Act 2013—the Premier, and
(f) for any other relevant entity—the Minister who, in the opinion of the Children’s Guardian, is the most closely concerned with the conduct of the entity.
Schedule 1 entity see section 13.
sexual misconduct see section 22.
sexual offence see section 21.
third party employer means a person, other than a relevant entity, who engages another person to provide services to children on behalf of a relevant entity, including as a contractor.
s 10: Am 2019 No 25, Sch 5.10[1]; 2020 No 24, Sch 1.1[1] [2]; 2025 No 46, Sch 1[6].
11 Meaning of “reportable conduct scheme”
Reportable conduct scheme means the scheme established under this Part to investigate reportable allegations and make determinations in relation to reportable convictions.
12 Meaning of “relevant entity”
Relevant entity means—
(a) a Schedule 1 entity, or
(b) a public authority, or
(c) a religious body.
s 12: Am 2019 No 25, Sch 5.10[2].
13 Meaning of “Schedule 1 entity”
Schedule 1 entity means—
(a) an entity, or part of an entity, mentioned in Schedule 1, or
(b) (Repealed)
(c) an adult who, under section 10 of the Child Protection (Working with Children) Act 2012, is required to hold a working with children check clearance because the adult resides on the same property as an authorised carer for 3 weeks or more, or
(d) an entity, or part of an entity, prescribed by the regulations for this definition.
s 13: Am 2025 No 46, Sch 1[7] [8].
14 Meaning of “public authority”
Public authority means—
(a) a government sector agency within the meaning of the Government Sector Employment Act 2013, or
(b) a person specified in section 5(1)(a), (b) and (d)–(f) of the Government Sector Employment Act 2013, or
(c) a local government authority, or
(d) a statutory body representing the Crown, or
(e) a statutory officer, or
(f) a body, whether incorporated or unincorporated, established for a public purpose under the provisions of a legislative instrument, or
(g) a State-owned corporation, or
(h) a university established under an Act, or
(i) an Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act 1983, or
(j) an entity, or part of an entity, declared by the regulations to be a public authority for this definition.
15 Meaning of “local government authority”
Local government authority means a council, county council or joint organisation under the Local Government Act 1993.
15A Meaning of “religious body”
Religious body means—
(a) a body established for a religious purpose, and
(b) an entity that establishes, or directs, controls or administers, an educational or other charitable entity that is intended to be, and is, conducted in accordance with religious doctrines, beliefs or principles.
s 15A: Ins 2019 No 25, Sch 5.10[3].
16 Meaning of “employee”
(1) Employee, of a relevant entity, means the following—
(a) for a Schedule 1 entity—
(i) an individual employed by, or in, the Schedule 1 entity, or
(ii) if the entity is an individual—the individual, or
(iii) if an individual is engaged directly, or by a third party employer, as a volunteer to provide services to children—the volunteer, or
(iv) if an individual is engaged directly, or by a third party employer, as a contractor and the contractor holds, or is required to hold, a working with children check clearance for the purpose of the engagement—the contractor, or
(v) if an individual is the head of a third party employer contracted to provide services to children on behalf of a Schedule 1 entity and the individual holds, or is required to hold, a working with children check clearance—the individual,
(b) for a public authority—
(i) an individual employed by, or in, the public authority, or
(ii) if the public authority is an individual—the individual, or
(iii) if an individual is engaged directly, or by a third party employer, as a volunteer to provide services to children—the volunteer, or
(iv) if an individual is engaged directly, or by a third party employer, as a contractor and the contractor holds, or is required to hold, a working with children check clearance for the purpose of the engagement—the contractor, or
(v) if an individual is the head of a third party employer contracted to provide services to children on behalf of a public authority and the individual holds, or is required to hold, a working with children check clearance—the individual,
(c) for a religious body—an individual who holds, or is required by the religious body to hold, a working with children check clearance for the purpose of engagement with the religious body.
Example for paragraph (b)(iv)—
a dance teacher is employed as a contractor by a dance school. The dance school leases the dance school premises from a local council and is conducting dance classes on behalf of the council. As the dance teacher teaches children, the dance teacher is required to hold a working with children check clearance. The dance teacher is taken to be an employee of the local council for the purposes of this Part.
(2) For a public authority, a person is also an employee of the authority if—
(a) the person exercises official functions or acts in a public official capacity in the service of the authority, or
(b) the person is otherwise in the service of the Crown.
(3) Also, for the purposes of this Part, an employee includes—
(a) a visiting practitioner within the meaning of the Health Services Act 1997, section 76, and
(a1) a person who is appointed, employed, contracted or otherwise engaged by a Schedule 1 entity to provide health care services, and
(b) a person employed under Part 2 of the Members of Parliament Staff Act 2013, and the person is taken to be an employee of a public authority.
(4) If an employee is an employee of a Schedule 1 entity that is also a public authority, the provisions relating to the Schedule 1 entity apply to the employee for this Part.
(5) In this section—
health care services means a service ordinarily provided by a health practitioner.
health practitioner has the same meaning as in the Health Practitioner Regulation National Law (NSW).
volunteer includes a person undertaking vocational training, including a student undertaking an internship or practical placement as part of the student’s course of studies.
s 16: Am 2019 No 25, Sch 5.10[4]; 2020 No 24, Sch 1.1[3]–[6]; 2025 No 46, Sch 1[9]–[11].
17 Meaning of “head” of relevant entity
(1) Head, of a relevant entity, means—
(a) for an entity that is a Department—the Secretary of that Department or the Secretary’s delegate, or
(b) if the regulations prescribe a person or a class of persons as the head of the entity—the prescribed person or a person belonging to the class of persons prescribed, or
(c) otherwise—
(i) the chief executive officer of the entity, however described, or
(ii) if there is no chief executive officer, the principal officer of the entity, however described, or
(iii) if there is no chief executive officer or principal officer, a person approved by the Children’s Guardian under section 66.
(2) In relation to a person employed under Part 2 of the Members of Parliament Staff Act 2013 by a member of Parliament, the member of Parliament is taken to be a public authority and the head of the authority.
18 Meaning of “reportable allegation”
(1) Reportable allegation, in relation to an employee of a Schedule 1 entity, means an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee’s employment with the Schedule 1 entity.
(2) Reportable allegation, in relation to an employee of a public authority, means—
(a) if the employee holds, or is required to hold, a working with children check clearance for the purpose of employment with the public authority—an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee’s employment, or
(b) if the employee is not required to hold a working with children check clearance for the purpose of employment with the public authority—an allegation that the employee has engaged in conduct that may be reportable conduct, unless the conduct is alleged to have occurred outside the course of the employee’s employment with the public authority.
(2A) Reportable allegation, in relation to an employee of a religious body, means an allegation that the employee has engaged in conduct that may be reportable conduct, whether or not the conduct is alleged to have occurred in the course of the employee’s engagement with the religious body.
(3) A reference in this Part to a reportable allegation includes an allegation in respect of conduct occurring before the commencement.
s 18: Am 2020 No 30, Sch 1.9[1].
19 Meaning of “reportable conviction”
(1) Reportable conviction means a conviction, including a finding of guilt without the court proceeding to a conviction, in this State or elsewhere, of an offence involving reportable conduct—
(a) in relation to an employee of a Schedule 1 entity—whether or not the conduct occurred in the course of the employee’s employment with the Schedule 1 entity, or
(b) in relation to an employee of a public authority—
(i) if the employee holds, or is required to hold, a working with children check clearance for the purpose of employment with the public authority—whether or not the conduct occurred in the course of the employee’s employment, or
(ii) if the employee is not required to hold a working with children check clearance for the purpose of employment with the public authority—unless the conviction relates to conduct that occurred outside the course of the employee’s employment with the public authority, or
(c) in relation to an employee of a religious body—whether or not the conduct occurred in the course of the employee’s engagement with the religious body.
(2) A reference in this Part to a reportable conviction includes a conviction in respect of conduct occurring before the commencement.
s 19: Am 2020 No 30, Sch 1.9[2].
20 Meaning of “reportable conduct”
Reportable conduct means the following conduct, whether or not a criminal proceeding in relation to the conduct has been commenced or concluded—
(a) a sexual offence,
(b) sexual misconduct,
(c) ill-treatment of a child,
(d) neglect of a child,
(e) an assault against a child,
(f) an offence under section 43B or 316A of the Crimes Act 1900,
(g) behaviour that causes significant emotional or psychological harm to a child.
Examples of indicators of significant emotional or psychological harm for paragraph (g)—
s 20: Am 2025 No 46, Sch 1[12].
21 Meaning of “sexual offence”
Sexual offence means an offence of a sexual nature under a law of the State, another State, a Territory, or the Commonwealth, committed against, with or in the presence of a child.
Examples of sexual offences—
s 21: Am 2025 No 46, Sch 1[13].
22 Meaning of “sexual misconduct”
Sexual misconduct means conduct with, towards or in the presence of a child that—
(a) is sexual in nature, but
(b) is not a sexual offence.
Examples of sexual misconduct—
23 Meaning of “ill-treatment”
Ill-treatment, of a child, means conduct towards a child that is unreasonable and seriously inappropriate, improper, inhumane or cruel.
Examples of ill-treatment—
24 Meaning of “neglect”
Neglect, of a child, means a significant failure to provide adequate and proper food, supervision, nursing, clothing, medical aid or lodging for the child, that causes or is likely to cause harm to a child, by—
(a) a person with parental responsibility for the child, or
(b) an authorised carer of the child, or
(c) an employee, if the child is in the employee’s care.
Examples of neglect—
s 24: Am 2025 No 46, Sch 1[14].
25 Meaning of “assault”
Assault means—
(a) the intentional or reckless application of physical force without lawful justification or excuse, or
(b) any act which intentionally or recklessly causes another to apprehend immediate and unlawful violence.
Examples of assault—
26 Meaning of “finding of reportable conduct”
Finding of reportable conduct means a finding, by a relevant entity or the Children’s Guardian, as a result of an investigation conducted under this Part, that a reportable allegation is sustained.
27 Who must give report of reportable allegation or conviction
(1) This section applies if a person (the first person) becomes aware of either of the following matters in relation to an employee of a relevant entity—
(a) a reportable allegation,
(b) a conviction the person considers is a reportable conviction.
(2) If the first person is also an employee of the relevant entity or a third party employer,, the person must, as soon as practicable after becoming aware of the matter—
(a) report the matter to the head of the relevant entity, or
(b) if the employee to whom the matter relates is the head of the relevant entity, report the matter to the Children’s Guardian.
(3) If the first person is not also an employee of the relevant entity or a third party employer, the person may—
(a) report the matter to the head of the relevant entity, or
(b) if the employee is the head of the relevant entity, report the matter to the Children’s Guardian.
s 27: Am 2020 No 24, Sch 1.1[7]; 2022 No 26, Sch 2.6[2].
28 Complaints to Children’s Guardian
(1) If a person who gives a report is dissatisfied with the response of the head of the relevant entity to the report, the person may make a complaint to the Children’s Guardian.
(2) Another person or other entity dissatisfied with the response of the head of the relevant entity to the report may also make a complaint to the Children’s Guardian.
29 Children’s Guardian to be given notification of reports
(1) This section applies if the head of a relevant entity—
(a) receives a report in relation to an employee of the relevant entity, or
(b) otherwise becomes aware of a reportable allegation in relation to an employee of the relevant entity or a conviction that is considered to be a reportable conviction.
(2) The head of the relevant entity must give the Children’s Guardian a written notice (a notification) about the reportable allegation or conviction considered to be a reportable conviction that states—
(a) that a report has been received in relation to an employee of the relevant entity, and
(b) the type of reportable conduct the subject of the report, and
(c) the name of the employee, and
(d) the name and contact details of the relevant entity and the head of the relevant entity, and
(e) for a reportable allegation—whether the Commissioner of Police has been notified of the allegation, and
(f) if a report has been made under section 24 of the Children and Young Persons (Care and Protection) Act 1998—that the report has been made, and
(g) the nature of the relevant entity’s initial risk assessment and risk management action, and
(h) any other information prescribed by the regulations.
(3) The notice must also include the following, if known to the head of the relevant entity—
(a) details of the reportable allegation or conviction considered to be a reportable conviction,
(b) the date of birth and working with children number, if any, of the employee the subject of the report,
(c) for a reportable allegation of which the Commissioner of Police has been notified—the police report reference number,
(d) if a report has been made under section 24 of the Children and Young Persons (Care and Protection) Act 1998—the report reference,
(e) the names of other relevant entities that employ or engage the employee, whether or not directly, to provide a service to children, including as a volunteer or contractor.
(4) The head of the relevant entity must give the Children’s Guardian the notice within 7 business days after the head of the entity is made aware of the report, unless—
(a) an exemption applies under section 30, or
(b) the head of the relevant entity has a reasonable excuse.
Maximum penalty—10 penalty units.
(5) The head of the relevant entity may give the employee the subject of the report written notice that a report about a reportable allegation or conviction considered to be a reportable conviction has been made.
(6) The Children’s Guardian may publish guidelines in relation to the matters that are appropriate for the head of a relevant entity to have regard to in deciding whether to provide the employee with written notice under subsection (5).
(7) In this section—
working with children number has the same meaning as in the Child Protection (Working with Children) Act 2012.
s 29: Am 2021 No 45, Sch 5[1].
30 Children’s Guardian may exempt conduct from notification
(1) The Children’s Guardian may exempt a class or kind of conduct of employees of a relevant entity from notification under section 29.
(2) The Children’s Guardian may exempt a class or kind of conduct of employees of a relevant entity from notification under section 29 only if the Children’s Guardian—
(a) has followed the procedures for exempting a class or kind of conduct prescribed by the regulations, and
(b) is satisfied the relevant entity, in relation to the exempt class or kind of conduct, meets the criteria, if any, prescribed by the regulations.
(3) For an exemption under this section, the Children’s Guardian must—
(a) notify the relevant entity of the exemption, and
(b) publish the details of the class or kind of conduct and relevant entity with an exemption on the Office of the Children’s Guardian’s website.
(4) The procedures and criteria referred to in subsection (2)(a) and (b) must also be published on the Office of the Children’s Guardian’s website.
s 30: Am 2021 No 45, Sch 5[2]–[4].
31 Exemptions about investigations and investigation reports
(1) The Children’s Guardian may, by written notice given to the head of a relevant entity, exempt the head from commencing or continuing either of the following—
(a) an investigation into a reportable allegation,
(b) a determination as to whether a conviction considered to be a reportable conviction is a reportable conviction.
(2) An exemption under subsection (1) applies until the head of the relevant entity is otherwise notified, in writing, by the Children’s Guardian that the exemption is revoked.
(3) An exemption under subsection (1) is taken to be an exemption from the requirement for the relevant entity to provide an entity report or an interim report.
(4) Without limiting subsection (1), the Children’s Guardian may exempt the head of a relevant entity if a matter is already being investigated by another relevant entity.
(5) The Children’s Guardian may also exempt the relevant entity from the requirement to provide an entity report or an interim report in relation to a matter after the Children’s Guardian receives the notification for the matter.
32 Notice to require relevant entity to defer investigation
(1) This section applies if, in relation to an employee of a relevant entity—
(a) the Children’s Guardian intends to—
(i) investigate a reportable allegation or a matter arising from a reportable allegation, or
(ii) determine whether a conviction considered to be a reportable conviction is a reportable conviction, and
(b) an investigation or determination under section 34 has not been finalised.
(2) The Children’s Guardian may, by written notice given to the head of the relevant entity, require the head to defer the investigation or determination.
(3) The Children’s Guardian may, by further written notice to the head of the relevant entity, require the head to—
(a) commence, continue or finalise the investigation or determination deferred under this section, or
(b) end the investigation or determination and take no further action.
33 Concurrent investigations or proceedings
(1) This section applies if the Commissioner of Police or the Director of Public Prosecutions advises the Children’s Guardian, or the head of a relevant entity, that an investigation or determination under this Part is likely to prejudice a police investigation or court proceeding.
(2) The Children’s Guardian or head of the relevant entity may—
(a) suspend the investigation or a determination until otherwise advised, and
(b) after consulting the police officer in charge of the investigation or the Director of Public Prosecutions, take steps to manage any risks while the investigation or determination is suspended, and
(c) if the investigation or determination was being conducted by the head of a relevant entity—
(i) advise the Children’s Guardian about the suspension under this section, and
(ii) advise the Children’s Guardian of the steps being taken to manage risks.
(3) Before making a decision about whether or not to suspend an investigation or determination, the Children’s Guardian, or head of the relevant entity, must consult with the Commissioner of Police, or the Director of Public Prosecutions, who provided the advice under subsection (1).
(4) If the investigation under this Part is not suspended, the Children’s Guardian or head of the relevant entity that decides not to suspend the investigation must ensure the investigation is conducted in a way that does not prejudice the police investigation or court proceeding.
(5) An investigation or determination by a relevant entity, suspended by operation of this section, is taken to be exempt from the requirement to provide an entity report or an interim report until the period of 30 business days after the suspension has ended.
(6) This section does not affect the operation of any other Act.
(7) For the purposes of this section—
(a) a reference to a police investigation includes a reference to an investigation by the Australian Federal Police, an international investigation the Australian Federal Police are aware of, or a police investigation in another State or Territory, and
(b) a reference to a court proceeding includes a reference to a court proceeding in another State or Territory, and
(c) a reference to the Commissioner of Police or the Director of Public Prosecutions includes a reference to a person holding the equivalent office in another State or Territory.
s 33: Am 2021 No 45, Sch 5[5]; 2025 No 46, Sch 1[15].
34 Investigation or determination by head of relevant entity
(1) As soon as practicable after receiving a report, the head of the relevant entity must—
(a) investigate, or arrange for an investigator to investigate, the reportable allegation, or
(b) determine whether the conviction considered to be a reportable conviction is a reportable conviction.
(1A) During an investigation, an employee the subject of a reportable allegation may make a written submission to the head of the relevant entity about whether the head of the relevant entity should make a finding of reportable conduct.
(1B) Before the head of the relevant entity makes a determination under subsection (1)(b), an employee the subject of the report about the conviction may make a written submission to the head of the relevant entity that the conviction considered to be a reportable conviction is not a reportable conviction.
(2) During an investigation or a determination, an employee the subject of a reportable allegation or a conviction considered to be a reportable conviction may give the head of the relevant entity a written submission concerning the allegation or conviction for the purpose of determining what, if any, disciplinary or other action should be taken in relation to the employee.
(3) The investigation or determination must be completed within a reasonable time.
Note.
Section 138 requires information to be reported in particular circumstances.
s 34: Am 2025 No 46, Sch 1[16].
35 Mandatory considerations
The head of the relevant entity, or the investigator, in conducting an investigation into a reportable allegation must have regard to the matters in Division 6.
36 Report by relevant entity about investigation or determination
(1) After an investigation or determination is completed, the head of the relevant entity must prepare a report for the Children’s Guardian (an entity report), unless—
(a) an exemption applies under section 31, or
(b) the head of the relevant entity has a reasonable excuse, or
(c) the Children’s Guardian consents to an extension of time for the head of the relevant entity to prepare the report.
Maximum penalty—10 penalty units.
(2) The entity report must be provided to the Children’s Guardian within 30 business days after the head of the entity receiving the report of the reportable allegation or conviction considered to be a reportable conviction, unless the head of the relevant entity gives the Children’s Guardian—
(a) an interim report under section 38 within 30 business days after receiving the report of the reportable allegation or conviction considered to be a reportable conviction, and
(b) a reason for not providing the report within 30 business days, and
(c) an estimated time frame for the completion of the entity report.
Maximum penalty—10 penalty units.
(3) Despite subsection (2), if the Children’s Guardian consents to an extension of time under subsection (1)(c), the report is due by the date granted under the extension.
(3A) Despite subsection (2), the entity report is not required to be given to the Children’s Guardian if the conduct is, because of an exemption under section 30(1), exempt from notification under section 29.
(4) The entity may give the entity report to the employee of the relevant entity the subject of the report.
s 36: Am 2021 No 45, Sch 5[6]; 2025 No 46, Sch 1[17].
37 Contents of entity report
(1) The entity report must include the following—
(a) in relation to a reportable allegation—
(i) information about the facts and circumstances of the reportable allegation, and
(ii) the findings the head of the relevant entity has made about the reportable allegation after completing the investigation, including whether the head of the relevant entity has made a finding of reportable conduct, and
(iii) an analysis of the evidence and the rationale for the findings,
(b) in relation to a conviction considered to be a reportable conviction—
(i) information about the conviction considered to be a reportable conviction, and
(ii) the determination the head of the relevant entity has made about the conviction, including whether the head of the relevant entity has determined the conviction is a reportable conviction,
(c) a copy of any written submission made by the employee under section 34(1A), (1B) or (2),
(d) information about what action has been, or will be, taken in relation to the reportable allegation or conviction considered to be a reportable conviction, including the following—
(i) remedial or disciplinary action in relation to the employee,
(ii) whether information about the matter has been referred to a different entity,
(iii) changes to systems or policies including, if the entity is a child safe organisation, to improve implementation of the Child Safe Standards,
(iv) if no further action is to be taken—that no further action is to be taken,
(e) the reasons for the action taken, including taking no further action,
(f) any other information prescribed by the regulations.
(2) The entity report must also be accompanied by any copies of documents in the relevant entity’s possession that are relevant to the report, including transcripts of interviews and copies of evidence.
s 37: Am 2021 No 30, Sch 1[4]; 2025 No 46, Sch 1[18].
38 Interim report
An interim report must—
(a) include the following information—
(i) in relation to a reportable allegation—if known, the facts and circumstances of the reportable allegation,
(ii) in relation to a conviction considered to be a reportable conviction—any known information about the conviction,
(iii) action taken since the Children’s Guardian received a notification about the reportable allegation or the conviction considered to be a reportable conviction,
(iv) further action the head of the relevant entity proposes to take in relation to the reportable allegation or conviction considered to be a reportable conviction, including if the head of the relevant entity proposes to take no further action,
(v) the reasons for the action taken and the action proposed to be taken or the reasons for the decision to take no further action,
(vi) other information prescribed by the regulations, and
(b) be accompanied by copies of documents in the relevant entity’s possession, including transcripts of interviews and copies of evidence.
39 Application of Division
(1) This Division applies in relation to a report, complaint or notification of a reportable allegation received by the head of a relevant entity, or by the Children’s Guardian.
(2) This Division does not apply in relation to a reportable conviction.
40 Assessing conduct
(1) The head of the relevant entity or the Children’s Guardian must make a finding of reportable conduct if it is satisfied that the case against the employee the subject of the reportable allegation has been proved against the employee on the balance of probabilities.
(2) Without limiting the matters the head of the relevant entity or the Children’s Guardian may take into account in deciding whether it is satisfied the case has been proved on the balance of probabilities, the head of the relevant entity or the Children’s Guardian may take into account—
(a) the nature of the reportable allegation and any defence, and
(b) the gravity of the matters alleged.
(3) (Repealed)
s 40: Am 2025 No 46, Sch 1[19].
41 Conduct that is not reportable conduct
Reportable conduct does not include—
(a) conduct that is reasonable for the purposes of discipline, management or care of a child, having regard to—
(i) the age, maturity, health or other characteristics of the child, and
(ii) any relevant code of conduct or professional standard, or
(b) the use of physical force if—
(i) in all the circumstances, the physical force is trivial or negligible, and
(ii) the circumstances in which it was used have been investigated and the result of the investigation has been recorded in accordance with appropriate procedures.
(c) (Repealed)
Example of conduct for paragraph (a)—
a school teacher raising his or her voice in order to attract attention or restore order in a classroom
Examples of conduct for paragraph (b)—
s 41: Am 2025 No 46, Sch 1[20].
42 Children’s Guardian may require further information
After receiving a notification, the Children’s Guardian may require the relevant entity to provide further information in relation to—
(a) the reportable allegation or conviction considered to be a reportable conviction, or
(b) the relevant entity’s response to the notification.
43 Children’s Guardian may monitor relevant entity’s investigation or determination
(1) The Children’s Guardian may, on the Children’s Guardian’s own initiative or because of a complaint, monitor the progress of an investigation or determination by the head of a relevant entity into a report if the Children’s Guardian considers the monitoring is in the public interest.
(2) Without limiting subsection (1), the Children’s Guardian may do the following to monitor an investigation—
(a) observe interviews carried out for the purposes of the investigation,
(b) discuss the investigation with the head of the relevant entity,
(c) provide guidance and advice to the relevant entity about the investigation,
(d) by written notice, require the head of the relevant entity or the investigator to provide to the Children’s Guardian documents or other information, including records of interviews, relating to the investigation,
(d1) review the relevant entity’s systems, policies and processes and their effectiveness in preventing, and responding to, reportable allegations and reportable convictions,
(e) a thing prescribed by the regulations for this section.
s 43: Am 2021 No 30, Sch 1[5].
Division 8 Investigation and report—Children’s Guardian
44 Preliminary inquiries
(1) The Children’s Guardian may make preliminary inquiries to decide whether to carry out an investigation or determination under section 46.
(2) The preliminary inquiries may be made whether or not the Children’s Guardian has received a complaint or notification about a matter to which the complaint or notification relates.
(3) Without limiting subsection (1), the Children’s Guardian may, by written notice given to the entity that made the complaint or notification, require the entity to give the Children’s Guardian further written information about the matter the subject of the complaint or notification within the time stated in the notice.
(4) Sections 16, 17, 18 and 19(1) of the Privacy and Personal Information Protection Act 1998 do not apply to information disclosed under this section.
(5) Despite the Health Records and Information Privacy Act 2002—
(a) a person may disclose health information, within the meaning of that Act, to the Children’s Guardian in relation to preliminary inquiries by the Children’s Guardian under this section, and
(b) the Children’s Guardian may use the information for the purposes of this Part.
45 Further information after receiving entity report
(1) After receiving an entity report, the Children’s Guardian may require the head of the relevant entity to provide additional information the Children’s Guardian considers necessary to enable the Children’s Guardian to determine—
(a) whether—
(i) the reportable allegation was properly investigated, or
(ii) the conviction considered to be a reportable conviction was properly determined, and
(b) whether appropriate action was, or can be, taken as a result of the investigation or determination.
(2) In this section—
appropriate action includes a penalty for the making of a reportable allegation that is shown to be false or misleading.
46 Children’s Guardian may investigate or determine
(1) The Children’s Guardian may, if the Children’s Guardian reasonably believes it is in the public interest—
(a) investigate a reportable allegation, or
(b) make a determination about a conviction considered to be a reportable conviction, or
(c) investigate the way in which a relevant entity has dealt with, or is dealing with, a report, complaint or notification.
(2) An investigation or determination under subsection (1) may be carried out—
(a) on the Children’s Guardian’s own initiative, or
(b) because of a complaint or notification, or
(c) because the Children’s Guardian is satisfied the head of a relevant entity is unable or unwilling to—
(i) investigate or determine a report, or
(ii) engage an investigator to carry out an investigation.
(3) The investigation or determination must be completed within a reasonable time.
Note.
Section 138 requires information to be reported in particular circumstances.
47 Notice for Children’s Guardian investigation or determination
(1) On deciding to carry out an investigation or determination, the Children’s Guardian must, by written notice given to the following entities, advise the entities about the decision—
(a) for an investigation or determination because of a report, complaint or notification involving an employee of a relevant entity—
(i) the employee and the relevant entity, and
(ii) if a complaint has been made—the entity that made the complaint,
(b) for an investigation in relation to the way in which a relevant entity has dealt with a report or notification—the relevant entity,
(c) an entity prescribed by the regulations.
(2) The notice must describe the reportable allegation or the conviction considered to be a reportable conviction the subject of the investigation or determination.
(3) Subsection (1)(a)(i) does not apply if giving the notice to the employee or relevant entity would compromise the investigation or put a person’s health or safety at serious risk.
48 Investigation by Children’s Guardian
(1) For an investigation into a reportable allegation, the Children’s Guardian must have regard to the matters in Division 6.
(2) An investigation under this Division must be carried out in the absence of the public.
(3) Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of conducting the investigation.
(4) For the purposes of an investigation under this Part, the Children’s Guardian may conduct an inquiry.
(5) Schedule 3 provides for the Children’s Guardian’s powers to make or hold an inquiry.
Division 9 Outcome of investigation or determination by Children’s Guardian
49 Children’s Guardian reports
(1) After completing an investigation or determination the Children’s Guardian must prepare a report (a Children’s Guardian report).
(2) The Children’s Guardian report must include the following—
(a) in relation to a reportable allegation—
(i) information about the facts and circumstances of the reportable allegation, and
(ii) the findings the Children’s Guardian has made about the reportable allegation after completing the investigation, including whether the Children’s Guardian has made a finding of reportable conduct, and
(iii) analysis of the evidence and the rationale for the findings,
(b) in relation to a conviction considered to be a reportable conviction—
(i) information about the conviction considered to be a reportable conviction, and
(ii) the determination the Children’s Guardian has made about the conviction, including whether the Children’s Guardian has determined the conviction is a reportable conviction,
(c) a copy of any written submissions made by the employee under section 34(2),
(d) recommendations for action to be taken in relation to the reportable allegation or conviction considered to be a reportable conviction, including any of the following recommendations—
(i) remedial or disciplinary action against—
(A) the employee, or
(B) if the complaint is about the head of a relevant entity—the head of the relevant entity,
(ii) referring the matter to a different entity,
(iii) changes to systems or policies including, if the entity is a child safe organisation, to improve implementation of the Child Safe Standards,
(iv) that no further action should be taken,
(e) reasons for the findings or determination,
(f) any other information prescribed by the regulations.
s 49: Am 2021 No 30, Sch 1[6].
50 Recommendations by Children’s Guardian
(1) If the Children’s Guardian proposes to recommend in the Children’s Guardian report that the relevant entity take particular action, the Children’s Guardian must consult with the relevant entity about the recommendation before finalising the report.
(2) Subsection (1) does not apply to the extent the Children’s Guardian reasonably believes consulting with the relevant entity would—
(a) put a person’s health or safety at serious risk, or
(b) put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or
(c) prejudice an investigation or inquiry.
(3) Recommendations the Children’s Guardian may make include recommendations that—
(a) the reportable conduct or reportable conviction be considered or reconsidered by the relevant entity, or by any person in a position to supervise or direct the relevant entity or employee in relation to the conduct, or
(b) action be taken to rectify, mitigate or change the reportable conduct or the consequences of the reportable conduct, or
(c) a law or practice relating to the conduct be changed, or
(d) other steps be taken.
51 Notice to particular persons of reportable conduct or reportable conviction
(1) This section applies if—
(a) the Children’s Guardian makes a finding of reportable conduct or a determination that a conviction is a reportable conviction in relation to an employee of a relevant entity, and
(b) in the Children’s Guardian report the Children’s Guardian makes a recommendation for dismissal, removal or punishment of the employee.
(2) The Children’s Guardian must advise the following persons of the finding or determination, the recommendation and the reasons—
(a) the Minister,
(b) the head of the relevant entity,
(c) if the finding or determination has been made about a person employed in, or by, a government sector agency within the meaning of the Government Sector Employment Act 2013—the Secretary of the Premier’s Department,
(d) the employee the subject of the finding or determination.
(3) The Children’s Guardian may advise the following persons of the finding or determination, the recommendation and the reasons—
(a) the responsible Minister for the relevant entity concerned,
(b) if the investigation or determination arose from a complaint—the entity that made the complaint.
(4) Subsection (2)(d) does not apply to the extent the Children’s Guardian reasonably believes advising the employee would—
(a) put a person’s health or safety at serious risk, or
(b) put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or
(c) prejudice any other investigation or inquiry.
s 51: Am 2023 No 35, Sch 4.5[1].
52 Recommendations and provision of report
(1) At the conclusion of an investigation or determination by the Children’s Guardian, or on a recommendation by the Children’s Guardian to refer a reportable allegation, reportable conduct or a reportable conviction back to the relevant entity, the Children’s Guardian must give the relevant entity and the employee the subject of the Children’s Guardian report—
(a) the recommendations for action to be taken, and
(b) necessary information relating to the recommendations.
(2) The Children’s Guardian may give a copy of the report to the relevant entity the subject of the Children’s Guardian report or the employee the subject of the Children’s Guardian report.
(3) Subsection (1) does not apply to the extent the Children’s Guardian reasonably believes giving the relevant entity or employee the information would—
(a) put a person’s health or safety at serious risk, or
(b) put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or
(c) prejudice any other investigation or inquiry.
53 Action taken by head of relevant entity on receipt of advice
The head of a relevant entity may, and on request by the Children’s Guardian must, notify the Children’s Guardian of any action taken or proposed as a result of the recommendations provided under section 52.
Division 10 Other measures about reportable conduct
54 Relevant entities to have systems about reportable conduct
(1) This section applies to a relevant entity that is not a child safe organisation.
(2) The head of a relevant entity must ensure the entity has systems including a code of conduct, policies and processes for the following—
(a) preventing and detecting reportable conduct by an employee of the entity,
(b) requiring an employee of the relevant entity to give a report, as soon as possible, in relation to a reportable allegation or conviction considered to be a reportable conviction involving an employee of the entity,
(c) enabling a person, other than an employee of the relevant entity, to give a report to the head of the relevant entity about a reportable allegation or conviction considered to be a reportable conviction involving an employee of the relevant entity,
(d) handling or responding to a reportable allegation or conviction considered to be a reportable conviction involving an employee of the relevant entity, having regard to principles of procedural fairness,
(e) receiving, handling and disclosing information relating to reportable allegations, convictions considered to be reportable convictions and information relating to investigations and determinations,
(f) identifying and dealing with matters relating to the prevention of reportable conduct by employees of the relevant entity.
s 54: Am 2021 No 30, Sch 1[7] [8].
55 Children’s Guardian may require information about systems
(1A) This section applies to a relevant entity that is not a child safe organisation.
(1) The Children’s Guardian may, at any time by written notice, require the head of a relevant entity to give the Children’s Guardian, within the reasonable time stated in the notice, information about the entity’s systems under section 54.
(2) If the relevant entity does not, without reasonable excuse, give the Children’s Guardian the information required under subsection (1), the Children’s Guardian may publish the following on the Children’s Guardian’s website—
(a) the name of the relevant entity,
(b) that the entity has failed to comply with the requirements for systems about reportable conduct under this Part.
s 55: Am 2021 No 30, Sch 1[9].
56 Reporting within the Office of the Children’s Guardian
(1) If a finding of reportable conduct or a determination has been made that a conviction is a reportable conviction, the Children’s Guardian must provide, to the Working with Children Check Unit within the Office of the Children’s Guardian, a report made under this Part, if the finding relates to the following types of conduct—
(a) sexual misconduct,
(b) a sexual offence,
(c) a serious physical assault.
(2) Also, if the Children’s Guardian is of the opinion that there is a real and appreciable risk to the safety of children during the course of an investigation, the Children’s Guardian must refer information about the employee the subject of the investigation to the Working with Children Check Unit, for the purpose of considering an interim bar under section 17 of the Child Protection (Working with Children) Act 2012.
(3) In this section—
Working with Children Check Unit means that part of the Office of the Children’s Guardian that exercises functions in relation to working with children check clearances under the Child Protection (Working with Children) Act 2012.
Division 11 Information sharing
57 Disclosure of information
(1) This section applies to a person who is, or was, any of the following persons—
(a) the Children’s Guardian,
(b) the head of a relevant entity, or an investigator for the relevant entity, to which a report of a reportable allegation or a conviction considered to be a reportable conviction, in relation to an employee of the relevant entity, was given.
(2) A person to whom this section applies must disclose relevant information to the following persons unless the person is satisfied the disclosure is not in the public interest—
(a) a child to whom the information relates,
(b) a parent of the child.
(3) Subsection (2) does not apply to the Children’s Guardian unless the Children’s Guardian is exercising, or has exercised, functions under section 46.
(4) A person to whom this section applies may disclose relevant information if—
(a) the disclosure is for the purpose of promoting the safety, welfare or wellbeing of a child, or class of children, to whom the information relates, and
(b) the information is disclosed to—
(i) if the employee the subject of the reportable allegation or conviction considered to be a reportable conviction is a contractor—the head of an entity, other than the relevant entity, that engaged the employee as a contractor, or
(ii) a person who, under the Children and Young Persons (Care and Protection) Act 1998, has daily care and control of a relevant child, whether or not that care involves custody of the child, or
(iii) for information relating to a child in out-of-home care—an authorised carer that provides out-of-home care to the child, or
(iv) a person prescribed by the regulations.
(5) The head of a relevant entity or an investigator for the relevant entity that is a public health entity may disclose relevant information to another public health entity.
(6) The head of a relevant entity to which a report of a reportable allegation or a conviction considered to be a reportable conviction, in relation to an employee, or former employee, of the relevant entity, was given may disclose to the employee or former employee to whom the report relates—
(a) that the report has been made, and
(b) after the conclusion of the investigation or the determination about the report, the following information—
(i) whether the head of the relevant entity has made a finding of reportable conduct or a determination that the conviction is a reportable conviction,
(ii) the reasons for the finding or determination,
(iii) information about action taken, or to be taken, in response to the finding or determination.
(7) Information must not be disclosed under subsection (6) if the head of a relevant entity reasonably believes disclosure would—
(a) put a person’s health or safety at serious risk, or
(b) put a person who made a report, complaint or notification, or other person, at risk of being harassed or intimidated, or
(c) prejudice an investigation or inquiry.
(8) In this section—
relevant child means a child or a member of a class of children—
(a) against whom an employee or former employee of an entity is alleged or found to have committed reportable conduct, and
(b) to whom the relevant information relates.
relevant information means the following information relating to a reportable allegation or conviction considered to be a reportable conviction—
(a) information about the nature of the reportable allegation or conviction considered to be a reportable conviction,
(b) information about the progress of the investigation,
(c) information about the findings of the investigation,
(d) information about action taken in response to the findings.
public health entity means the following persons or bodies—
(a) the Ministry of Health,
(b) a local health district within the meaning of the Health Services Act 1997,
(c) a statutory health corporation within the meaning of the Health Services Act 1997,
(d) an affiliated health organisation within the meaning of the Health Services Act 1997,
(e) the Ambulance Service of NSW within the meaning of the Health Services Act 1997,
(f) the Cancer Institute (NSW) constituted by the Cancer Institute (NSW) Act 2003,
(g) the Health Administration Corporation constituted by the Health Administration Act 1982,
(h) the Health Professional Councils Authority Office.
Note—
See the Children and Young Persons (Care and Protection) Act 1998, Chapter 16A for other provisions about the exchange of information and coordination of services by agencies that have responsibilities relating to the safety, welfare or wellbeing of children and young persons.
s 57: Subst 2025 No 46, Sch 1[21].
58 Other disclosures by Children’s Guardian
(1) The Children’s Guardian may also disclose information obtained in the course of an investigation into reportable conduct or a determination about a conviction considered to be a reportable conviction if the disclosure is made—
(a) if the information relates to a public authority, including a Schedule 1 entity that is a public authority, and where the information is obtained from a relevant entity—with the consent of the head of the relevant entity, or of the responsible Minister, or
(b) if the Children’s Guardian believes on reasonable grounds that disclosure to a person is necessary to prevent or reduce the likelihood of harm being done to another person—to the person, or
(c) for information obtained from another person—with the consent of the person, or
(d) for the purpose of proceedings under the Police Act 1990, section 167A, or
(e) for the purpose of proceedings under—
(i) the Public Interest Disclosures Act 2022, section 33 or 37, or
(ii) the Independent Commission Against Corruption Act 1988, section 79I or 79L, or
(iii) the Ombudsman Act 1974, section 31R or 31U, or
(iv) the Law Enforcement Conduct Commission Act 2016, section 97H or 97K, or
(f) for the purpose of criminal proceedings resulting from an investigation under this Act, or
(g) for the purpose of proceedings under—
(i) this Act, section 161 or 169, or
(ii) the Royal Commissions Act 1923, Part 3, or
(iii) the Special Commissions of Inquiry Act 1983, Part 4, or
(h) to a medical practitioner or psychologist in relation to the provision by that health practitioner of medical or psychiatric care, treatment or counselling, including psychological counselling to the Children’s Guardian or an officer of the Children’s Guardian, or
(i) to an Official Community Visitor for the purpose of exercising the Official Community Visitor’s functions under this Act, or
(j) to a complainant, for the purposes of responding to a complaint about a relevant entity’s handling of a reportable allegation or conviction considered to be a reportable conviction, or
(k) for the purpose of discharging the Children’s Guardian’s functions under this Act or another Act.
(2) Subsection (1) does not operate to make admissible in evidence in proceedings a document that would not have been admissible if the subsection had not been enacted.
s 58: Am 2022 No 14, Sch 8.1[1] [2]. Subst 2025 No 46, Sch 1[21].
59 Other States, the Commonwealth and Territories
(1) Section 58 does not prevent the Children’s Guardian from giving information obtained under this Part to a relevant person in relation to—
(a) a matter relevant to the exercise of a law of any other State, the Commonwealth or a Territory, or
(b) an undertaking that is or was being carried out jointly by New South Wales and any other State, the Commonwealth or a Territory.
(2) In this section—
relevant person means a person exercising functions under a law of another State, the Commonwealth or a Territory, similar to those exercised by the Children’s Guardian under this Act.
60 Lawful disclosure
(1) Nothing in this Division limits disclosure that is required or permitted by law.
(2) The Privacy and Personal Information Protection Act 1998 and the Health Records and Information Privacy Act 2002 do not prevent disclosure that is authorised by, or under, this Act.
Division 12 Other proceedings
61 Children’s Guardian, officer or expert as witness
(1) The Children’s Guardian, or officer of the Children’s Guardian, must not be compellable to give evidence or produce any document in legal proceedings in respect of any information obtained by the Office of the Children’s Guardian in the exercise of a function under this part.
(2) Subsection (1) does not apply to the following—
(a) proceedings for an offence under this Part,
(b) proceedings under Part 3 of the Royal Commissions Act 1923,
(c) proceedings under Part 4 of the Special Commissions of Inquiry Act 1983,
(d) proceedings under Part 5 of the Government Information (Public Access) Act 2009 arising as a consequence of a decision made by the Children’s Guardian in respect of an access application under that Act,
Note.
Matters in relation to reportable conduct are prescribed as excluded information under Schedule 2 to the Government Information (Public Access) Act 2009.
(e) proceedings under section 167A of the Police Act 1990,
(f) proceedings under—
(i) the Public Interest Disclosures Act 2022, section 33 or 37, or
(ii) the Independent Commission Against Corruption Act 1988, section 79I or 79L, or
(iii) the Ombudsman Act 1974, section 31R or 31U, or
(iv) the Law Enforcement Conduct Commission Act 2016, section 97H or 97K,
(g) criminal proceedings resulting from an investigation under this Part.
(3) Subsection (1) applies to the following persons in the same way it applies to the Children’s Guardian and an officer of the Children’s Guardian—
(a) a former Children’s Guardian,
(b) a former officer of the Children’s Guardian,
(c) an Australian legal practitioner who is, or was, appointed under clause 1(5) of Schedule 3 to assist the Children’s Guardian,
(d) a person whose services are, or were, engaged under section 67.
s 61: Am 2022 No 14, Sch 8.1[3]; 2025 No 46, Sch 1[22] [23].
62 Limits on secrecy and privilege
(1) This section applies if the Children’s Guardian requires a person, under this Part, or under Schedules 2 or 3 in relation to an investigation or inquiry under this Part—
(a) to give a statement of information, or
(b) to produce a document or other thing, or
(c) to give a copy of a document, or
(d) to answer a question.
(2) The Children’s Guardian must set aside the requirement if it appears to the Children’s Guardian that a person has a ground of privilege, whereby—
(a) in proceedings in a court of law, the person might resist a similar requirement, and
(b) it does not appear to the Children’s Guardian that the person consents to compliance with the requirement.
(3) The powers may be exercised despite—
(a) a rule of law which, in proceedings in a court of law, might justify an objection to an inspection of the premises or document or thing or to production of the document or thing on grounds of public interest, or
(b) any privilege of a relevant entity which the relevant entity might claim in a court of law, or
(c) any duty of secrecy or other restriction on disclosure applying to a relevant entity.
Division 13 Offences for Part
63 Retribution by employer
(1) An employer who dismisses an employee from his or her employment, or prejudices any employee in his or her employment, for or on account of the employee assisting the Children’s Guardian is guilty of an indictable offence.
Maximum penalty—200 penalty units or imprisonment for 5 years, or both.
(2) In proceedings for an offence against subsection (1), it lies on the employer to prove that any employee shown to have been dismissed or prejudiced in his or her employment was so dismissed or prejudiced for some reason other than the reasons mentioned in subsection (1).
(3) In this section, a reference to a person assisting the Children’s Guardian is a reference to a person who—
(a) has appeared, is appearing or is to appear as a witness before the Children’s Guardian, or
(b) has complied with or proposes to comply with a requirement under Part 5 of Schedule 2, or
(c) has assisted, is assisting or is to assist the Children’s Guardian in some other manner.
s 63: Am 2020 No 24, Sch 1.1[8].
64 Protection against retribution
(1) This section applies if a person, acting in good faith, gives, or proposes to give—
(a) a report to the head of a relevant entity or the Children’s Guardian, or
(b) a complaint or notification to the Children’s Guardian.
(2) A person must not take, or threaten to take, detrimental action in respect of a person specified in subsection (1), because of the report, complaint or notification.
Maximum penalty—50 penalty units or imprisonment for 12 months, or both.
(3) For subsection (1), a report, complaint or notification is not given in good faith if—
(a) the report, complaint or notification was made or proposed in bad faith, or
(b) a material allegation was known, by the person giving the report, complaint or notification, to be false.
(4) In this section—
detrimental action means action causing, comprising or involving the following—
(a) injury, damage or loss,
(b) intimidation or harassment,
(c) discrimination, disadvantage or adverse treatment in relation to employment,
(d) dismissal from, or prejudice in, employment,
(e) prejudice in the provision of a community service,
(f) disciplinary proceedings.
Division 14 Miscellaneous
65 Head of relevant entity may delegate functions
The head of a relevant entity may delegate any of the functions of the head of the relevant entity under this Part to an employee of the entity.
66 Children’s Guardian approval of head of relevant entity in certain circumstances
(1) This section applies to a relevant entity—
(a) that—
(i) is not a Department, and
(ii) does not have a chief executive officer or principal officer, and
(b) if the regulations do not prescribe a person or a class of persons as the head of the entity.
(2) For this Part, the relevant entity must nominate a person or the holder of a position in the entity to be the head of the entity.
(3) The Children’s Guardian may approve, or refuse to approve, by written notice given to the entity, the person as the head of the entity.
(4) The approval given by the Children’s Guardian under this section may be revoked by written notice, given to the entity, at any time.
(5) In this section—
relevant entity includes a child safe organisation.
s 66: Am 2021 No 16, Sch 5[1]; 2022 No 33, Sch 1[3].
67 Expert assistance
For the purposes of the exercise of the Children’s Guardian’s functions in relation to this Part, the Children’s Guardian may engage the services of a person for the purpose of getting expert assistance.
68 Immunity from liability
(1) This section applies to—
(a) a person who gives a report, or
(b) a person who makes a complaint, or
(c) a person who gives the Children’s Guardian a notification.
(2) The person is not subject to any civil or criminal liability or any liability arising by way of administrative process, including disciplinary action, for giving the report, complaint or notification, if the person is acting in good faith.
69 Evidential immunity for individuals complying with Part
(1) Subsection (2) applies if an individual gives or produces information or a document to the head of the relevant entity, or a person conducting an investigation on behalf of the head of the relevant entity or the Children’s Guardian, under this Part.
(2) Evidence of the information or document, and other evidence directly or indirectly derived from the information or document, is not admissible against the individual in a proceeding to the extent it tends to incriminate the individual, or expose the individual to a penalty, in the proceeding.
(3) Subsection (2) does not apply to a proceeding about the false or misleading nature of the information or anything in the document or in which the false or misleading nature of the information or document is relevant evidence.
70 Cabinet information and proceedings
(1) This Act does not enable the Children’s Guardian—
(a) to require any person—
(i) to give any statement of information, or
(ii) to produce any document or other thing, or
(iii) to give a copy of any document, or
(iv) to answer any question, or
(b) to inspect any document or thing,
that relates to Cabinet information.
(2) For the purposes of this section, a certificate of the Secretary or General Counsel of the Cabinet Office that—
(a) information is Cabinet information, or
(b) any information, document, thing or question relates to confidential proceedings of Cabinet or of a committee of Cabinet,
is conclusive of that fact.
(3) In this section—
Cabinet information means—
(a) Cabinet information under the Government Information (Public Access) Act 2009, or
(b) confidential proceedings of Cabinet or a committee of Cabinet.
s 70: Am 2023 No 35, Sch 4.5[2].
Part 5 Out-of-home care
pt 5, hdg: Am 2022 No 33, Sch 1[4].
71 Objects of Part
The objects of this Part are—
(a) to monitor and regulate out-of-home care to ensure a high standard in the provision of out-of-home care, and
(b) to ensure the rights of and obligations to children in out-of-home care are safeguarded and promoted, and
(c) (Repealed)
(d) to clarify the roles and responsibilities of agencies and persons involved in the provision of out-of-home care, and
(e) to ensure agencies and persons providing out-of-home care to children are appropriately regulated to promote the safety, welfare and wellbeing of the children, and
(f) to promote the best interests of all children in out-of-home care, and
(g) to assess the suitability of agencies for accreditation and to monitor the carrying out of accredited agencies’ responsibilities, and
(h) (Repealed)
(i) to establish and maintain a register for the purpose of the authorisation of individuals as authorised carers, and
(j) to establish and maintain a register of residential care workers.
Note.
The Children and Young Persons (Care and Protection) Act 1998 provides for the oversight of children in statutory out-of-home care and supported out-of-home care.
s 71: Am 2022 No 33, Sch 1[5].
72 Meaning of “designated agency”
In this Act, designated agency means an agency accredited by the Children’s Guardian under Schedule 3A.
s 72: Am 2020 No 24, Sch 1.1[9] [10]. Subst 2022 No 33, Sch 1[6].
73 (Repealed)
74 Meaning of “principal officer”
In this Act, the principal officer, of a designated agency, means the person who has the overall supervision of the agency’s arrangements for providing statutory out-of-home care and supported out-of-home care.
s 74: Subst 2022 No 33, Sch 1[7].
75 Actions of principal officer
(1) Anything done by, or with the approval of, the principal officer of a designated agency in relation to out-of-home care is, for this Act and the regulations, taken to be done by the designated agency concerned.
(2) Nothing in subsection (1) affects the personal liability of the principal officer.
s 75: Am 2022 No 33, Sch 1[8] [9].
81 Principal officer of designated agency must not reside with children under agency’s care
(1) The principal officer of a designated agency must not reside on the same property as a child who is in statutory out-of-home care or supported out-of-home care supervised by the designated agency.
Maximum penalty—200 penalty units.
(2) Subsection (1) does not apply if the principal officer resides with the child at a facility of the designated agency at which out-of-home care is provided.
82 Supervisory responsibility of designated agency
A designated agency that places a child in the out-of-home care of an authorised carer has a responsibility to supervise the placement (supervisory responsibility).
83 Notification of deaths of children in statutory out-of-home care or supported out-of-home care
If a child dies while in statutory out-of-home care or supported out-of-home care, the principal officer of the designated agency having supervisory responsibility, within the meaning of section 82, for the child must immediately cause notice of the death to be given to the following persons—
(a) the parents of the child if the parents can reasonably be located,
(b) the Children’s Guardian,
(c) the Coroner.
84 Powers of authorised persons
Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of monitoring and accreditation under this Part or under the regulations in relation to out-of-home care.
85 Registers to be kept
(1) The Children’s Guardian may keep the following registers—
(a) a register for carers (the carers register),
(b) a register for residential care workers (the residential care workers register),
(c) a register for children in specialised substitute residential care (the specialised substitute residential care register).
(1A) The Children’s Guardian, and a person prescribed by the regulations for the purposes of this section, may deal with information for the purposes of keeping a register.
(1B) The carers register may include information about the following—
(a) a carer (a relevant authorised carer) authorised by a designated agency to provide statutory out-of-home care or supported out-of-home care in a private capacity,
(b) a person who was formerly a relevant authorised carer,
(c) a person who has applied to be a relevant authorised carer,
(d) a person, other than a child in out-of-home care, who resides for more than 21 days on the same property as a relevant authorised carer,
(e) a person prescribed by the regulations.
(1C) The residential care workers register may include information about the following—
(a) a residential care worker,
(b) a person who was formerly a residential care worker,
(c) a person who has applied to be a residential care worker and who reached an advanced stage in the recruitment process,
(d) a person prescribed by the regulations.
(1D) The specialised substitute residential care register may include information about the following—
(a) a child in specialised substitute residential care,
(b) a person prescribed by the regulations.
(2) The regulations may provide for the following—
(a) the information to be kept under each register,
(b) the way the information must be recorded, including amendments to a register,
(c) when information must be kept, or updated, on a register,
(d) the checks a person who is kept on a register is to be subject to and the ways to record the outcomes of the checks,
(e) persons who may access a register, or particular information kept on a register,
(f) how a register may be used,
(g) the way a register may be kept.
(3) In this section—
advanced stage, in a recruitment process, means a stage prescribed by the regulations.
deal, with information, means collect, use or disclose information.
s 85: Am 2020 No 31, Sch 2.2[1]–[4]; 2022 No 33, Sch 1[11]–[15]; 2022 No 59, Sch 2.7[1].
86 General access to registers
(1) The Children’s Guardian must ensure that information on a register is not disclosed except—
(a) as provided by this Division, or
(b) as required or permitted to be disclosed under another Act or law.
(2) A residential care provider must have access to the information on the residential care workers register in relation to the following—
(a) residential care workers who work at places at which residential care is provided if the provision of the residential care is arranged by the residential care provider (residential care workers for the residential care provider),
(b) persons who were formerly residential care workers for the residential care provider,
(c) persons who have applied to be residential care workers for the residential care provider,
(d) persons prescribed by the regulations.
(3) The Children’s Guardian must provide access to information held on a register to any of the following persons if asked by the person—
(a) the Secretary,
(b) the Minister administering the Children and Young Persons (Care and Protection) Act 1998,
(c) the Ombudsman.
s 86: Am 2022 No 33, Sch 1[16] [17]; 2022 No 59, Sch 2.7[1] [2].
87 Permission to access registers
(1) This section applies—
(a) to a person whose details are included on a register, and
(b) in addition to any requirement under section 14 of the Privacy and Personal Information Protection Act 1998.
(2) The person may ask any of the following entities to give the person all the information that is included on the register in relation to the person—
(a) the Children’s Guardian,
(b) the residential care provider who has access to the person’s information under section 86(2).
(3) The Children’s Guardian or residential care provider must comply with the request as soon as practicable after the request is made.
(4) Despite subsection (3), information included on a register in relation to the person must not be provided if—
(a) the information is about a reportable allegation or reportable conviction, or
(b) a reportable conduct flag is on the register in relation to the person, applies to the information.
(5) It is an offence for a person to access or amend a register except as provided by this Act or the regulations.
Maximum penalty—100 penalty units.
(6) (Repealed)
s 87: Am 2020 No 30, Sch 2.7[1] [2]; 2022 No 33, Sch 1[18]–[20]; 2022 No 59, Sch 2.7[1] [3] [4].
88 Requirement to amend residential care workers register in particular circumstances
A residential care provider with access to the residential care workers register must remove a reportable conduct flag for a person if the finding of the investigation or determination to which the flag applies is that the person does not pose a real and appreciable risk to a child or children.
s 88: Am 2022 No 59, Sch 2.7[2] [5].
Part 6 Child employment in entertainment, exhibition and certain other industries
pt 6, hdg: Subst 2025 No 46, Sch 1[24].
89 Objects of Part
The objects of this Part are—
(a) to promote the safety, welfare and wellbeing of children under the age of 16 years in relation to employment by assessing and granting employers’ authorities and exemptions, and
(b) to prevent the exploitation and abuse of children in employment, and
(c) to provide for the circumstances in which a child may be employed that ensure the employment does not compromise the child’s personal or social development and ability to benefit from education, including the granting and revocation of exemptions from the requirement to hold an employer’s authority.
90 Definitions
(1) In this part—
child means a person who is less than 16 years of age.
employment means—
(a) paid employment, or
(b) employment under which a material benefit is provided.
relevant activity means the following—
(a) taking part in an entertainment or exhibition,
(b) taking part in a performance that is recorded for use in a subsequent entertainment or exhibition,
(c) an activity prescribed by the regulations for this definition.
(2) For this part, a child takes part in an entertainment or exhibition if the child—
(a) engages in acting, dancing, miming, playing of an instrument, singing, speaking, modelling, presenting or doing voice over work, or
(b) engages in modelling, demonstrating products, performance art or promotional work, including advertising or work to raise public awareness, or
(c) rehearses or prepares for an activity referred to in paragraph (a) or (b), or
(d) takes part in publicity for an activity referred to in paragraph (a) or (b), or
(e) stands in for another child to engage in an activity referred to in paragraph (a) or (b).
s 90: Subst 2025 No 46, Sch 1[25].
91 Extension of employment relationship
If a relationship of employment may not otherwise exist, a person is also taken, for this Part, to employ a child if—
(a) the regulations declare that persons of a class to which the person belongs are taken to employ children of a class to which the child belongs, or
(b) the Children’s Guardian has, by written notice given to the person, declared that the person is, for this Part, taken to employ a child or children of the class to which the child or children belong.
92 Requirement to hold employer’s authority for child employment in entertainment, exhibition and certain other industries
(1) A person must not employ a child to carry out a relevant activity unless the person holds an employer’s authority that authorises the person to employ children to carry out the activity.
Maximum penalty—100 penalty units.
(2) A person must not cause or procure a child to be employed knowing the child will be employed in contravention of subsection (1).
Maximum penalty—100 penalty units.
(3) A person having the care of a child must not consent to or otherwise allow the child to be employed knowing the child will be employed in contravention of subsection (1).
Maximum penalty—100 penalty units.
s 92: Am 2025 No 46, Sch 1[26] [27].
93 Exemptions from requirement to hold employer’s authority
(1) A person who employs a child to carry out a relevant activity is not required to hold an employer’s authority for the employment if—
(a) the child is employed for the purpose of a fundraising appeal, within the meaning of the Charitable Fundraising Act 1991, by a person lawfully conducting the appeal, or
(b) the child is employed for the purpose of an occasional entertainment or exhibition, the net proceeds of which are to be applied wholly for a charitable purpose, or
(c) the person is exempt under the regulations from the requirement to hold an employer’s authority for the employment, or
(d) the person is exempt by the Children’s Guardian under section 102 from being required to hold an employer’s authority.
(2) The regulations may prescribe conditions of an exemption from the requirement to hold an employer’s authority for the employment.
s 93: Am 2020 No 24, Sch 1.1[14]; 2025 No 46, Sch 1[28].
Subdivision 1 Applications for authorities or exemptions
94 How to apply
(1) A person may apply to the Children’s Guardian for—
(a) an employer’s authority, or
(b) an exemption from the requirement to hold an employer’s authority (an employer’s exemption).
(2) An application for an employer’s authority or employer’s exemption must be—
(a) made in the approved form, and
(b) accompanied by the fee prescribed by the regulations for the purposes of this section.
(3) The regulations may also provide for the waiver, reduction or refund, including part refund, of the fee.
Subdivision 2 Employers’ authorities
95 Decision about application for authority
(1) Within 14 days after receiving an application for an employer’s authority, the Children’s Guardian must decide to—
(a) grant the authority to the applicant, with or without conditions, or
(b) refuse the authority.
(2) The Children’s Guardian may grant the application if the Children’s Guardian is satisfied—
(a) the applicant has the capacity to comply with this Part and any conditions to which the proposed authority will be subject, and
(b) the applicant will comply with this Part and the conditions.
(3) For subsection (1), the Children’s Guardian and the applicant may agree to vary the period in which the application must be decided.
(4) The Children’s Guardian must give the applicant written notice of the decision and, if the Children’s Guardian refuses the application, state the grounds on which the application has been refused.
96 Term of employer’s authority
(1) Unless sooner revoked, an employer’s authority remains in force for the period, not exceeding 12 months, stated in the authority, commencing on the date the authority is granted, or a later date stated in the authority.
(2) If an application is made by the holder of an employer’s authority for a further employer’s authority while the other employer’s authority is still in force, the other employer’s authority remains in force until the application is finally dealt with, whether or not on appeal.
Subdivision 3 Conditions
97 Conditions of authority
(1) An employer’s authority is subject to the following conditions—
(a) a condition prescribed by the regulations—
(i) for all employers’ authorities, or
(ii) for a class of employers’ authorities to which the authority belongs,
(b) a condition imposed by the Children’s Guardian.
(1A) Without limiting subsection (1), the regulations, or the Children’s Guardian, may impose a condition making an employer’s authority subject to the Code of Practice.
(1B) The Code of Practice is—
(a) the Code of Practice prescribed by the regulations, or
(b) the Code of Practice, prescribed by the regulations and modified in the way prescribed by the regulations for a class of employers’ authority to which the authority belongs, or
(c) if the holder of an employer’s authority has applied to the Children’s Guardian to modify the Code of Practice prescribed by the regulations—the modified Code of Practice, as approved by the Children’s Guardian.
(2) The holder of an employer’s authority must not employ a child in contravention of the conditions of the authority.
Maximum penalty—100 penalty units.
s 97: Am 2020 No 24, Sch 1.1[15].
98 Change in conditions
(1) The Children’s Guardian may, at the request of the holder of an employer’s authority or on the Children’s Guardian’s own initiative, change the conditions to which the authority is subject by—
(a) revoking or varying a condition of the authority, or
(b) imposing a further condition on the authority.
(1A) Also, the Children’s Guardian may, on the Children’s Guardian’s own initiative, change the conditions for a class of employers’ authority by—
(a) revoking or varying a condition for the class of authority, or
(b) imposing a further condition on the class of authority.
(2) If the Children’s Guardian decides to change the conditions, the Children’s Guardian must give the holder of the employer’s authority a written notice that states—
(a) the Children’s Guardian’s decision, and
(b) the reason for the decision.
(3) The change to the conditions takes effect on—
(a) the date stated in the notice, or
(b) if no date is stated in the notice, the day the notice is given to the holder of the employer’s authority.
(4) This section does not apply to a condition prescribed by the regulations unless the regulations provide that this section applies.
s 98: Am 2020 No 24, Sch 1.1[16].
Subdivision 4 Suspension and revocation of employer’s authority
99 Voluntary suspension or revocation of authority
(1) The Children’s Guardian may suspend or revoke an employer’s authority at the request of the holder of the authority.
(2) If the holder of an employer’s authority has requested the authority be suspended or revoked, the Children’s Guardian may, by written notice given to the holder of the authority—
(a) suspend the authority for the period, not exceeding 6 months, stated in the notice, or
(b) revoke the authority.
100 Suspension and revocation of authority
(1) The Children’s Guardian may decide to suspend or revoke an employer’s authority if the Children’s Guardian believes the holder of the authority has contravened—
(a) this Act or the regulations, or
(b) a condition of the authority.
(2) If the Children’s Guardian believes a ground exists to suspend or revoke an employer’s authority, the Children’s Guardian must give the holder a show cause notice, in writing, that states—
(a) the action the Children’s Guardian proposes taking (the proposed action), and
(b) the ground for the proposed action, and
(c) if the proposed action is suspension of the employer’s authority—the proposed period, not exceeding 6 months, for the suspension, and
(d) that the holder may make written submissions to the Children’s Guardian, within 28 days after receiving the notice, about why the proposed action should not be taken.
(3) After the 28 days under subsection (2) have passed, the Children’s Guardian may, after considering any submissions made during that period by the holder—
(a) suspend the employer’s authority for the period, not exceeding 6 months, stated in the notice, or
(b) revoke the employer’s authority.
(4) The suspension or revocation must be given to the holder of the employer’s authority by a further notice, and state the ground on which the authority is suspended or revoked.
101 Effect of suspension
(1) This section applies to an employer’s authority suspended under this Subdivision.
(2) If an employer’s authority has been suspended for a period, the Children’s Guardian may, during the period, end the suspension by giving the person who holds the authority written notice that the suspension has ended.
(3) An employer’s authority is taken not to be in force during the period for which it is suspended.
102 Exemption by Children’s Guardian
(1) The Children’s Guardian may exempt a person from being required to hold an employer’s authority—
(a) if written notice of the exemption has been given to the person setting out the conditions, if any, on which the exemption was granted, and
(b) until the person contravenes a condition on which the exemption was granted.
(2) The Children’s Guardian may revoke an exemption by a written notice given to the exempt person but only after—
(a) notice has been given to the person and the notice sets out the reason the Children’s Guardian intends to revoke the exemption, and
(b) the Children’s Guardian has taken into consideration any written submission made to the Children’s Guardian by the person within 28 days after the notice was given.
(3) Without limiting the reasons for which an exemption may be revoked, an exemption may be revoked if a condition of the exemption is contravened.
(4) The Children’s Guardian may revoke an exemption—
(a) which applies because the employer is lawfully conducting a fundraising appeal, but only with the agreement of the Minister administering the Charitable Fundraising Act 1991, or
(b) granted by the regulations, but only if the regulations allow the Children’s Guardian to revoke the exemption.
(5) The regulations may prescribe conditions of an exemption granted by the Children’s Guardian.
s 102: Am 2020 No 24, Sch 1.1[17].
103 Powers of authorised persons
Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of investigating a complaint or an offence under this Part.
104 Enforcement of undertakings
(1) The Children’s Guardian may accept a written undertaking given by a person for the purposes of this section in connection with a matter in relation to the Children’s Guardian’s functions under section 128 (relating to the employment of children).
(2) Without limiting subsection (1), an undertaking that the Children’s Guardian may accept includes an undertaking to carry out a restorative justice activity.
(3) The person may withdraw or vary the undertaking at any time, but only with the consent in writing of the Children’s Guardian.
(4) The consent of the Children’s Guardian is required even if the undertaking purports to authorise withdrawal or variation of the undertaking without that consent.
(5) The Children’s Guardian may apply to the Supreme Court for an order under subsection (6) if the Children’s Guardian considers that the person who gave the undertaking has breached the terms of the undertaking.
(6) The Supreme Court may make all or any of the following orders if the Court is satisfied the person has breached a term of the undertaking—
(a) an order directing the person to comply with the term of the undertaking,
(b) an order directing the person to pay to the State an amount not exceeding the amount of a financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach,
(c) an order the Court thinks appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach,
(d) an order suspending or revoking an employer’s authority,
(e) any other order the Court considers appropriate.
105 (Repealed)
106 Endangering children in employment
A person who causes or allows a child to take part in employment, in the course of which the child’s physical or emotional wellbeing is put at risk, is guilty of an offence.
Maximum penalty—200 penalty units.
107 Removal of child from place of unlawful employment
A child is taken to be a child in need of care and protection under Chapter 4 of the Children and Young Persons (Care and Protection) Act 1998 if—
(a) a person (other than a relative of the child) is employing the child in contravention of this Act at any place, and
(b) the Children’s Guardian requests a person responsible for the child to remove the child from the place, and
(c) the child is not immediately removed.
Part 7 Adoption service providers
108 Objects of Part
The objects of this Part are—
(a) to provide a framework for the accreditation of adoption service providers to ensure accredited adoption service providers comply with the objects of the Adoption Act 2000, and
(b) to emphasise that the best interests of the child concerned, both in childhood and later life, must be the principal consideration in adoption law and practice, and
(c) to ensure that adoption law and practice assist the child to know and have access to the child’s birth family and cultural heritage, and
(d) to recognise the changing nature of practices of adoption, and
(e) to ensure equivalent safeguards and standards that apply to children adopted from within the State apply to children adopted from overseas, and
(f) to encourage openness in adoption, and
(g) to allow access to certain information relating to adoption.
109 References to “child”
In this Part—
child means—
(a) a person who is less than 18 years of age, or
(b) a person who is 18 or more years of age in relation to whom an adoption is sought or has been made.
110 Meaning of “principal officer” of adoption service provider
(1) The principal officer of an accredited adoption service provider is the person who has the overall supervision of the provision, by the accredited adoption service provider, of adoption services.
(2) Anything done by, or with the approval of, the principal officer of an adoption service provider in relation to adoption services is, for this Act and the regulations, and the Adoption Act 2000 and the regulations under that Act, taken to be done by the adoption service provider concerned.
(3) Nothing in this section affects the personal liability of the principal officer.
110A Meaning of “accredited adoption service provider”
In this Act, accredited adoption service provider means an organisation, or part of an organisation, accredited by the Children’s Guardian under Schedule 3B.
s 110A: Ins 2022 No 33, Sch 1[22].
pt 7, div 2, hdg: Rep 2022 No 33, Sch 1[23].
111 Operation of Part
This Part and Chapter 3 of the Adoption Act 2000, provide—
(a) that individuals must not make their own adoption arrangements, either personally or through private institutions, and
(b) for the accreditation of charitable and non-profit organisations to provide adoption services.
112 Review of adoption service providers
(1) (Repealed)
(2) The Children’s Guardian is to monitor whether the Secretary and accredited adoption service providers are carrying out their responsibilities with respect to the provision of adoption services in accordance with this Act and the regulations, and the Adoption Act 2000 and the regulations under that Act.
Note.
Section 11 of the Adoption Act 2000 provides that it is an offence for a person to provide an adoption service unless the person is the Secretary or accredited under this Act as an adoption service provider.
(3) A person who makes a statement, orally or in writing, that the person knows to be false for the purposes of or in connection with subsection (1) or (2) is guilty of an offence.
Maximum penalty—25 penalty units or imprisonment for 12 months, or both.
(4) Subsection (3) does not apply to a document if the person, when giving the document—
(a) tells the Children’s Guardian or an officer of the Children’s Guardian, to the best of the person’s ability, how it is false or misleading, and
(b) if the person has, or can reasonably obtain, the correct information—gives the correct information.
s 112: Am 2022 No 33, Sch 1[24] [25].
113 Powers of authorised persons
Schedule 2 provides for powers that may be exercised by an authorised person for the purpose of monitoring and accreditation under this part or under the regulations in relation to adoption service providers.
s 113: Rep 2022 No 33, Sch 1[26]. Ins 2025 No 46, Sch 1[30].
pt 7, div 3, hdg: Rep 2022 No 33, Sch 1[27].
114 Restriction on inspection of records
(1) Except as provided by this Act or the regulations, records made in connection with the administration or execution of this Part are not to be open to inspection by, or made available to, any person, including any party to proceedings before the Court under this Act.
(2) Subsection (1) does not apply to any record or report if so ordered by the Court.
(3) In this section—
Court means the Supreme Court of New South Wales.
record means any document or other source of information compiled, recorded or stored in written form or on film, or by electronic process, or in any other manner or by any other means.
Part 8 Children’s Guardian
115 Appointment of Children’s Guardian
(1) There is to be a Children’s Guardian.
(2) The Children’s Guardian is appointed by the Governor.
116 Term of office
(1) The Children’s Guardian holds office for the term, not more than 5 years, stated in the instrument of appointment.
(2) The Children’s Guardian is eligible for re-appointment.
(3) However, a person may not be appointed for more than 2 terms of office as Children’s Guardian, whether or not the terms are consecutive.
117 Full-time office
The office of Children’s Guardian is a full-time office and the holder of the office is required to hold it on that basis, except to the extent permitted by the Minister.
118 Eligibility for appointment
A person is not eligible for appointment as Children’s Guardian if the person is a member of the Legislative Council or the Legislative Assembly or is a member of a House of Parliament of another State or of the Commonwealth.
119 Employment and remuneration
(1) Subject to this Part, the employment of the Children’s Guardian is on the terms and conditions stated in the instrument of appointment.
(2) The following provisions (the relevant provisions) of, or made under, the Government Sector Employment Act 2013 relating to the employment of Public Service senior executives apply to the Children’s Guardian—
(a) provisions relating to the band in which an executive is to be employed,
(b) provisions relating to the contract of employment of an executive,
(c) provisions relating to the remuneration, employment benefits and allowances of an executive.
(3) For subsection (2), in applying the relevant provisions to the Children’s Guardian, a reference to the employer of a Public Service senior executive is taken to be a reference to the Minister.
120 Children’s Guardian not Public Service employee
(1) The office of Children’s Guardian is a statutory office.
(2) The provisions of the Government Sector Employment Act 2013 relating to the employment of Public Service employees do not apply to the office.
121 Vacancy in office of Children’s Guardian
(1) The office of Children’s Guardian becomes vacant if the holder—
(a) engages in any paid employment outside the duties of the office, or
(b) is nominated for election as a member of the Legislative Council or the Legislative Assembly or as a member of a House of Parliament of another State or of the Commonwealth, or
(b1) dies, or
(b2) completes a term of office and is not reappointed, or
(b3) becomes personally insolvent, or
(b4) becomes a mentally incapacitated person, or
(b5) is convicted—
(i) in New South Wales of an offence punishable by imprisonment for 12 months or more, or
(ii) elsewhere than in New South Wales of an offence that, if committed in New South Wales, would be an offence punishable by imprisonment for 12 months or more, or
(b6) is removed from office under section 122, or
(c) resigns the office by instrument in writing addressed to the Governor and the Governor accepts the resignation.
(2) If the office of Children’s Guardian becomes vacant, a person is, subject to this Act, to be appointed to fill the vacancy.
s 121: Am 2023 No 39, Sch 2[1] [2]; 2025 No 46, Sch 1[31].
122 Removal from office
(1) The Governor may remove the Children’s Guardian from office, but only for incompetence, incapacity or misbehaviour.
(2) To remove any doubt, the Children’s Guardian cannot be removed from office under Part 6 of the Government Sector Employment Act 2013.
s 122: Am 2025 No 46, Sch 1[32].
123 Acting Children’s Guardian
(1) The Minister may, from time to time, appoint a person to act in the office of the Children’s Guardian during the illness or absence of the Children’s Guardian, or during a vacancy in the office of the Children’s Guardian.
(2) A person acting as Children’s Guardian has all the functions of the Children’s Guardian.
(3) The Minister may, at any time, remove a person from the office of acting Children’s Guardian.
(4) The acting Children’s Guardian is entitled to be paid the remuneration and allowances decided by the Minister.
s 123: Subst 2025 No 46, Sch 1[33].
Sourced from legislation.nsw.gov.au, CC BY 4.0.
Part 1 Preliminary
1 Name of Act
This Act is the Children’s Guardian Act 2019.
2 Commencement
(1) Subject to subsection (2), this Act commences on 1 March 2020.
(2) The following provisions commence on a day or days to be appointed by proclamation—
(a), (b) (Repealed)
(c) items 5 and 6 of Schedule 5.10.
s 2: Am 2025 No 46, Sch 1[1] [2].
Part 2 Application and interpretation
Division 1 Application of Act
3 Children to whom this Act applies
The functions conferred or imposed by this Act and the regulations may be exercised in relation to children—
(a) who ordinarily live in New South Wales, or
(b) who do not ordinarily live in New South Wales but who are present in New South Wales, or
(c) who are—
(i) for Part 4—subject to an event or circumstance, whether occurring in New South Wales or elsewhere, that is committed by a person who is an employee of a relevant entity (within the meaning of Part 4) and that gives rise to a report (within the meaning of Part 4), or
(ii) otherwise—subject to an event or circumstance occurring in New South Wales that gives rise to a report.
Division 2 Interpretation
4 Definitions
Regulates child employment in entertainment/exhibition activities for children under 16. Employers generally must hold an employer’s authority or an exemption, and the Guardian administers authorities, conditions, suspensions and offences (Part 6, ss 90–106).
Gives the Guardian coercive powers to gather information, inspect premises, require documents or attendance, hold inquiries and use warrants when justified (Schedule 2; Schedule 3 for inquiries; see cl. 14, cl. 31, Sch 3 cl. 1). It also provides information‑sharing rules and confidentiality limits (ss 57–60, 58, 180–180A).
Provides protections for people who report in good faith (immunity from civil/disciplinary liability—s 68; protections against retribution—ss 63–64, 152) and limits on compelled testimony and privilege (ss 61–62).
Who this affects
Children and their families: the object is protection of children’s safety, welfare and wellbeing (s 6; s 7).
“Child safe organisations” and “relevant entities”: a broad range of bodies that provide services to children (listed in Schedule 1 and in the Dictionary)—schools (government and non‑government), health services, designated agencies, adoption service providers, local councils, many clubs, religious bodies, registered child‑care services and other prescribed bodies (Schedule 1; sch 6 definitions).
Heads, managers, employees, contractors, volunteers and third‑party employers working with children: the Act defines who counts as an “employee” for the reportable conduct scheme and who must report and be investigated (s 16).
Prescribed government agencies: required to develop child safe action plans and report progress (ss 8G–8M).
Organisations seeking accreditation as designated agencies or adoption service providers, and employers of children in entertainment: they must apply, meet criteria, accept conditions and are subject to monitoring, possible suspension, cancellation or penalties (Schedules 3A & 3B; Part 6).
The Children’s Guardian and staff: are given investigation, monitoring, enforcement and reporting duties and powers (Part 8, s 128; Schedule 2 for powers).
Why it matters (official purpose + practical effects, trade‑offs and implementation risks)
Officially: the Act says it exists to protect children by promoting and regulating the quality of services to children and embedding the Child Safe Standards (s 6; s 8A). It also sets up the reportable conduct scheme to ensure allegations and convictions involving child abuse or harm in institutional settings are reported, investigated and overseen (s 9).
Practical mechanisms that implement that purpose: mandatory systems and policies in organisations (s 8D; s 54), mandatory notifications to the Guardian (s 29), monitoring and inspection powers (s 8V; Schedule 2), public transparency (publication of child safe action plans, and lists of compliance notices and enforceable undertakings—ss 8L, 152E, 152I) and penalties for non‑compliance (e.g. ss 152F, 152J, and Part 11 offences).
Who pays / who bears costs: regulated organisations bear the compliance costs — developing and maintaining policies, carrying out self‑assessments, responding to monitoring requests and possible remediation after investigations (s 8D, s 8V, ss 152A–152D). Employers of children must apply for authorities and meet conditions (s 92 ff.). The Office of the Children’s Guardian bears administrative costs for monitoring, investigation, training and publication (ss 8S, 8Q, Part 8 functions). There are fees the Guardian may charge (s 94(2); s 8S allows fees for training).
Incentives and enforcement: the Act sets up a mix of positive supports (guidelines, training, templates, capability building—ss 8Q–8S) and enforcement tools (compliance notices, enforceable undertakings, public naming, penalties, accreditation cancellation) that push organisations to adopt the Child Safe Standards. Publication of non‑compliance creates reputational incentives as well as regulatory ones (ss 152E, 152I, s 8L).
Bureaucratic discretion and checks: the Children’s Guardian has wide discretion to choose to monitor, investigate or require action (e.g. ss 8V, 43, 46). The Minister may issue guidelines which the Guardian must act consistently with when exercising Child Safe Standards functions (s 8AB), and the Parliamentary Committee on Children and Young People has oversight functions for Part 3A (s 183A). Many decisions are reviewable to the NSW Civil and Administrative Tribunal (s 154) which provides an administrative‑law check on some decisions.
Trade‑offs and risks:
Important specific rules to note
Mandatory notification by heads of relevant entities of reportable allegations/convictions to the Children’s Guardian (s 29). Failure attracts penalties.
Child Safe Standards are detailed in the Act (s 8C) and the head of a child‑facing organisation must ensure they are implemented through policies and continuous review (s 8D).
The Guardian may issue compliance notices requiring specified remedial actions and may publish a list of active notices (ss 152A, 152B, 152E). Non‑compliance is an offence with monetary penalties (s 152F).
The Guardian may accept enforceable undertakings instead of issuing compliance notices; failure to comply with an undertaking carries larger penalties (ss 152G, 152J).
The reportable conduct scheme covers a broad list of conduct (sexual offences and misconduct, ill‑treatment, neglect, assault, behaviour causing significant emotional/psychological harm) and applies to employees, volunteers and certain contractors depending on context (ss 20–25; s 16 definitions).
Registers (carers, residential care workers, specialised substitute residential care) are to be kept; they include information and flags about investigations and determine access and amendment rules (s 85–88).
Where decisions are made and who decides
(1) The Dictionary in Schedule 6 defines certain terms used in this Act.
Note.
The Interpretation Act 1987 also contains definitions and other provisions that affect the interpretation and application of this Act.
(2) Notes and examples included in this Act do not form part of this Act.
5 References to “commencement”
(1) In this Act, a reference to commencement for this Act or a provision of this Act is a reference to the time this Act or provision comes into operation.
(2) In a provision of this Act, a reference to the commencement without indicating a particular Act or provision is a reference to the commencement of the provision in which the reference occurs.
Part 3 Objects and principles
6 Main object of Act
The main object of this Act is to protect children by providing for the role and functions of the office of the Children’s Guardian, including—
(a) promoting the quality of organisations and persons providing services to children, and
(b) regulating those organisations and persons in providing those services, and
(c) embedding the Child Safe Standards as the primary framework that guides child safe practice in organisations in New South Wales.
s 6: Am 2021 No 30, Sch 1[1].
7 Paramount consideration
The safety, welfare and wellbeing of children, including protecting children from child abuse, is the paramount consideration in decision-making under this Act and the regulations and in the operation of this Act and the regulations generally.
8 Guiding principles
The guiding principles to be applied in administering this Act and the regulations are—
(a) if a child is able to form views on a matter concerning the child’s safety, welfare and wellbeing—
(i) the child must be given an opportunity to express the views freely, and
(ii) the views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, and
(b) in all actions taken and decisions made under this Act and the regulations that significantly affect a child, account must be taken of the culture, disability, language, religion, gender identity and sexuality of—
(i) the child, and
(ii) if relevant, the person with parental responsibility for the child, and
(c) in deciding what action is necessary to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and the child’s family that is also consistent with the paramount consideration, and
(d) in decision-making under this Act and the regulations and the investigation or monitoring of persons, the Children’s Guardian must observe the principles of natural justice and ensure procedural fairness, and
(e) in decision-making under this Act and the regulations in relation to an Aboriginal child or a Torres Strait Islander child—
(i) the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles set out in the Children and Young Persons (Care and Protection) Act 1998, section 13, and
(ii) the embedding of connection to family and community with the ultimate goal of the child feeling safe and secure in their identity, culture and community, and
(e1) in decision-making under this Act, respect for cultural and social difference must be considered in the provision of child-related services, and
(e2) the need to consult with the Aboriginal and Torres Strait Islander community to consider and address the impact of policies, practices and procedures on Aboriginal and Torres Strait Islander children, the children’s families and communities and Aboriginal and Torres Strait Islander community-controlled organisations, and
(f) if a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment.
s 8: Am 2021 No 30, Sch 1[2]; 2025 No 46, Sch 1[3].
Part 3A Child safe scheme
pt 3A: Ins 2021 No 30, Sch 1[3].
Division 1 Preliminary
pt 3A, div 1: Ins 2021 No 30, Sch 1[3].
8A Objects of Part
The objects of this Part are for the Children’s Guardian to protect children from harm by—
(a) adopting the Child Safe Standards as the primary framework that guides child safe practice, and
(b) implementing regulatory approaches that—
(i) improve systems for the prevention, identification, response to and reporting of child abuse in child safe organisations through the implementation of the Child Safe Standards, and
(ii) assist child safe organisations to implement the Child Safe Standards by raising awareness and providing guidance, training and education, and
(iii) monitor and report on the compliance of child safe organisations with the Child Safe Standards, and
(iv) enforce compliance with the Child Safe Standards, and
(v) provide for the investigation of complaints about a child safe organisation’s—
(A) implementation of the Child Safe Standards, or
(B) compliance with the Child Safe Standards, or
(C) compliance with recommendations contained in a monitoring assessment report, and
(vi) establish child safe action plans with prescribed agencies, and
(vii) provide for the ongoing exchange of information about risks to child safety in organisations between government agencies, both in New South Wales and in other States and Territories, with child safety responsibilities.
s 8A: Ins 2021 No 30, Sch 1[3].
8AA Consistency with Royal Commission Report recommending the Child Safe Standards
(1) Implementation of the Child Safe Standards by child safe organisations is to be consistent with Royal Commission recommendations.
(2) Where a Child Safe Standard can be implemented in more than 1 way, implementation that most closely reflects the Royal Commission recommendations is to be preferred.
s 8AA: Ins 2021 No 30, Sch 1[3].
8AB Ministerial guidelines
(1) The Minister may issue guidelines to the Children’s Guardian about the way the Children’s Guardian is to—
(a) oversee the implementation of the Child Safe Standards by child safe organisations,
(b) enforce the Child Safe Standards within child safe organisations,
(c) establish child safe action plans with prescribed agencies.
(2) Despite section 128(3), the Children’s Guardian must, when exercising functions concerning the Child Safe Standards, act in a way that is consistent with guidelines issued by the Minister under subsection (1).
s 8AB: Ins 2021 No 30, Sch 1[3].
8AC (Repealed)
s 8AC: Ins 2021 No 30, Sch 1[3]. Rep 2025 No 46, Sch 1[4].
8B Definitions
In this Part—
child safe action plan—see section 8F.
monitoring assessment report means a report issued by the Children’s Guardian under section 8W.
prescribed agency—see section 8G.
related body, for a prescribed agency—see section 8H.
religious body has the same meaning as in section 15A.
Royal Commission recommendations means the Final Report Recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse.
s 8B: Ins 2021 No 30, Sch 1[3].
Division 2 Child Safe Standards
pt 3A, div 2: Ins 2021 No 30, Sch 1[3].
8C Meaning of “Child Safe Standards”
The Child Safe Standards are—
- Child safety is embedded in organisational leadership, governance and culture.
- Children participate in decisions affecting them and are taken seriously.
- Families and communities are informed and involved.
- Equity is upheld, and diverse needs are taken into account.
- People working with children are suitable and supported.
- Processes to respond to complaints of child abuse are child focused.
- Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training.
- Physical and online environments minimise the opportunity for abuse to occur.
- Implementation of the Child Safe Standards is continuously reviewed and improved.
- Policies and procedures document how the organisation is child safe.
s 8C: Ins 2021 No 30, Sch 1[3].
8D Systems, policies and processes
(1) The head of a child safe organisation must ensure the organisation implements the Child Safe Standards through systems, policies and processes which may include, but are not limited to, the following—
(a) a statement of the organisation’s commitment to child safety,
(b) a child safe policy,
(c) a code of conduct applying to the following—
(i) employees,
(ii) management, however described,
(iii) contractors,
(iv) volunteers,
(d) a complaint management policy and procedure,
(e) a human resources policy,
(f) a risk management plan.
(2) The head of a child safe organisation, if the organisation is a relevant entity under Part 4, must ensure the organisation implements a reportable conduct policy that addresses the matters in section 54(2).
(3) The head of a child safe organisation must ensure the systems, policies and processes implemented by the organisation are continuously reviewed and updated to reflect—
(a) the Child Safe Standards, and
(b) recommendations made to the organisation by the Children’s Guardian in—
(i) a monitoring assessment report under section 8W, or
(ii) an investigation report under section 8Z, and
(c) enforcement measures taken under Part 9A against the organisation by the Children’s Guardian.
s 8D: Ins 2021 No 30, Sch 1[3]. Am 2025 No 46, Sch 1[5].
8DA Codes of practice
(1) The regulations may prescribe codes of practice for the purposes of ensuring entities comply with the Child Safe Standards.
(2) A code of practice may apply only to the following entities—
(a) a designated agency,
(b) an adoption service provider,
(c) an entity providing specialised substitute residential care,
(d) an entity prescribed by the regulations.
(3) A code of practice must specify the entities to which it applies.
(4) A code of practice for entities providing specialised substitute residential care must require each entity to complete, within the time specified in the code of practice, a self-assessment of the entity’s compliance with the Child Safe Standards.
(5) An entity that fails, without reasonable excuse, to complete the self-assessment within the time specified in the code of practice commits an offence.
Maximum penalty—10 penalty units.
(6) A code of practice may include the following—
(a) the steps that must be taken to implement the Child Safe Standards,
(b) the outcomes that will indicate compliance with the Child Safe Standards,
(c) other matters relevant to compliance with the Child Safe Standards.
(7) A code of practice that applies to a designated agency or an adoption service provider may also include steps that must be taken to obtain and maintain accreditation under this Act.
(8) An entity must comply with a code of practice that applies to the entity.
Note—
This provision makes the code of practice a mandatory prescriptive requirement for compliance with the Child Safe Standards.
(9) The failure by an entity to comply with a code of practice is grounds for the Children’s Guardian to—
(a) conduct an investigation under Division 6, and
(b) following the investigation, if the Children’s Guardian considers it appropriate—issue a compliance notice to the entity under Part 9A.
s 8DA: Ins 2022 No 33, Sch 1[1].
8E Children’s Guardian may require information about systems, policies and processes
(1) The Children’s Guardian may, at any time by written notice, require the head of a child safe organisation to give the Children’s Guardian, within the reasonable time stated in the notice but not less than 7 days, information about the organisation’s systems, policies and processes under section 8D.
(2) If the organisation does not, without reasonable excuse, give the Children’s Guardian the information required under subsection (1), the Children’s Guardian may—
(a) commence an investigation under Division 6, and
(b) publish the following on the Office of the Children’s Guardian’s website—
(i) the name of the organisation,
(ii) that the organisation has failed to provide the information required by the Children’s Guardian under this section.
This is an opening excerpt, not the complete document.