Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017

The Act defines several key terms in section 4. An "assessment of relevant history" means an assessment conducted under the former Children's Protection Act 1993 by an "authorised screening unit". A "criminal history report" means a report prepared by South Australia Police, CrimTrac or the Australian Crime Commission. The "transitional period" is defined as the period beginning on the day section 4 comes into operation and ending either on a day specified by the Minister in the Gazette or, if no such day is specified, three years after that commencement. This transitional period is critical because many transitional provisions (including those in Parts 2 and 3) operate only during that period and automatically expire. The Act also borrows extensively from the three new Acts it serves, incorporating their definitions by reference (see sections 5, 18 and 22). In Part 4, a "repealed Act" means the Children's Protection Act 1993 (section 22(2)). The concept of a "prohibited person" under the Child Safety (Prohibited Persons) Act 2016 is central: section 4(2) provides that references to becoming a prohibited person include a person who is a prohibited person by force of section 15 of that Act on its commencement. "Working with children check" is not defined in this Act but is used throughout the amendments in the context of the Child Safety (Prohibited Persons) Act 2016. "Approved carer" appears in the amendments to the Criminal Law Consolidation Act 1935 (Part 12) and elsewhere, drawing its meaning from the Children and Young People (Safety) Act 2017. The Act also creates the concept of a "responsible authority for an organisation" for the purposes of section 8A (transitional provisions for persons assessed by a responsible authority), drawing on the former section 8B of the Children's Protection Act 1993. The definitions section 4(1) also specifies that "authorised screening unit" means a person or body who was an authorised screening unit under the Children's Protection Regulations 2010 at the relevant time. These defined terms give effect to the transitional machinery, ensuring that old screening assessments are recognised as equivalent to new working with children checks during the transitional period.

The Act affects a broad range of individuals, organisations and government bodies. Individuals include teachers (sections 9, 132-146), health practitioners (section 11), foster parents (section 12), foster care agency licensees (section 13), holders of licences for children's residential facilities (section 14), employees in training centres and correctional institutions (section 15), passenger transport service operators and drivers (section 16), emergency service workers (section 8B), persons employed in residential facilities established under the Family and Community Services Act 1972 (new section 110A), and persons working in training centres under the Youth Justice Administration Act 2016 (new section 21A). Children and young people are directly affected because their guardianship and custody arrangements are automatically transferred to the Chief Executive under the new Act (sections 24, 25), and their placements continue (section 23A). Parents and relatives are affected by the amendments to maintenance provisions in the Family and Community Services Act 1972 (Part 14). Organisations affected include licensed foster care agencies, children's residential facilities, education and early childhood services providers (Part 13), passenger transport operators, and any organisation that was subject to the former section 8C of the Children's Protection Act 1993 (section 36). Government bodies and officers are significantly affected: the Chief Executive of the Department (now the key guardian/custodian under the new Act, replacing the Minister in many contexts), the Teachers Registration Board (new obligations for registration and suspension), the Education and Early Childhood Services Board (eligibility conditions requiring working with children checks), the Child Death and Serious Injury Review Committee (continuation of members), the Commissioner for Children and Young People (new annual reporting obligation inserted as section 13A), and the Guardian for Children and Young People (references changed from Minister to Chief Executive in section 26 of the Oversight Act). Courts are affected: the Youth Court's jurisdiction is updated to include the new Act (Part 22), and the Youth Court continues proceedings under the old Act as if commenced under the new one (section 26A). The Births, Deaths and Marriages Registrar is affected by new name-change provisions (section 25A). The South Australian Civil and Administrative Tribunal may be conferred jurisdiction to review Chief Executive decisions under new section 25A(9). In short, every entity that operated under the old child protection framework and every entity that will operate under the new one is affected by this transitional and amending Act.

The Act imposes numerous duties, many of which are incorporated through amendments to other Acts. A key duty is the obligation to obtain a working with children check. For teachers, new eligibility criteria in the Teachers Registration and Standards Act 2004 require that a working with children check has been conducted within the preceding five years and that the person is not a prohibited person (new sections 21(1)(c) and (d) inserted by Part 21). Every registration is subject to a condition that a working with children check be conducted at least once every five years (new section 24(a1)). Teachers who become prohibited persons have their registration automatically cancelled (new section 24A). Employers of practising teachers must report dismissals or resignations if the teacher is a prohibited person or has no current working with children check, within seven days, with a maximum penalty of $10,000 (new section 37(1a)). If the Registrar learns a teacher is a prohibited person, the Registrar must notify the employer and the chief executives of the Department, Catholic Education Office and Association of Independent Schools (new section 52A). For board members, registrars and staff of the Education and Early Childhood Services Board, a working with children check conducted within the preceding five years is a condition of appointment or assignment (new sections 22(2a), 27(2a), 28(1a) of the Education and Early Childhood Services Act). The Chief Executive has the power to direct a change of name for a child under guardianship if it is in the child's best interests, after considering the child's views and notifying parents (new section 25A of the Births, Deaths and Marriages Registration Act 1996). A person aggrieved by such a decision is entitled to review under section 157 of the Children and Young People (Safety) Act 2017 (section 25A(8)). Children and young people who were under guardianship or custody orders under the repealed Act are automatically transferred to the Chief Executive under the new Act, with their placements continuing (sections 24, 25). Voluntary custody agreements continue under the new Act (section 26). The Chief Executive may grant financial or other assistance to approved carers or others caring for children (new section 112A of the Children and Young People (Safety) Act 2017). The Act also provides a limited right for the Youth Court to make a declaration of a child's name if the child is under long-term guardianship (new subsections 53(1b) to (1f) of the Safety Act). The Act does not create general rights for parents beyond the notification and submission rights in the name-change process.

The Act creates new criminal offences and increases penalties in several areas. The most significant new offences are in Part 10. New section 110A of the Children and Young People (Safety) Act 2017 provides that a person must not be employed in a residential facility established under section 36 of the Family and Community Services Act 1972 unless they have undergone a psychological or psychometric assessment determined by the Chief Executive. An employee who contravenes this faces a maximum penalty of $20,000 for a first or second offence and $50,000 or imprisonment for one year for a third or subsequent offence. An employer who employs or continues to employ a person in contravention faces penalties of $50,000 or one year imprisonment for a natural person, or $120,000 for a body corporate (new section 110A(4)). Similar offences are inserted into the Youth Justice Administration Act 2016 as new section 21A, with identical penalties, applying to employment in training centres or other facilities established under section 21 of that Act. Part 21 inserts new reporting obligations: employers of practising teachers who dismiss or accept resignation because the teacher is a prohibited person or lacks a current working with children check must report to the Teachers Registration Board within seven days, with a maximum penalty of $10,000 (new section 37(1a)). Part 2 of the Act (now expired) had evidentiary provisions in section 17: in proceedings under the Child Safety (Prohibited Persons) Act 2016, a document from an authorised screening unit stating an assessment of relevant history was conducted is taken as proof in the absence of evidence to the contrary. Similarly, an allegation in an information that an assessment had or had not been conducted is accepted as proved unless contrary evidence is given. The Act also amends the Spent Convictions Act 2009 to remove exclusions that had applied to certain positions, which could affect enforcement of screening requirements. Penalty provisions in the Family and Community Services Act 1972 are not directly amended by this Act, but the repeal of many divisions (Part 14) removes obsolete enforcement infrastructure. The Act does not create any new enforcement agency or inspectorate; enforcement relies on existing mechanisms under the amended Acts, such as police prosecution for the new offences and the Teachers Registration Board's disciplinary powers.

The Act is almost entirely concerned with interaction with other laws. It directly amends over twenty Acts, from the Births, Deaths and Marriages Registration Act 1996 to the Youth Justice Administration Act 2016. The core interaction is with the three new Acts it supports: the Child Safety (Prohibited Persons) Act 2016, the Children and Young People (Oversight and Advocacy Bodies) Act 2016, and the Children and Young People (Safety) Act 2017. Part 4 provides that references in the Safety Act to working with children checks include assessments of relevant history under the old Act (section 23(1)). Section 23(2) ensures that when the Safety Act requires regard to the working with children check scheme, that includes regard to old screening provisions. Section 23(3) ensures that organisations that were subject to old section 8C of the repealed Act are carried over as prescribed organisations for child-related work. Old orders under the repealed Act are continued as orders under the new Safety Act (sections 31A, 31B). The Act interacts with the Intervention Orders (Prevention of Abuse) Act 2009 by substituting "State child protection order" for "Children's Protection Act order" and providing that an intervention order prevails over a State child protection order to the extent of inconsistency, with the Youth Court able to resolve the inconsistency (Part 15). The Criminal Law Consolidation Act 1935 is amended to insert "approved carer" alongside "foster parent" in sexual offence provisions (sections 63, 64, 65, 66). The Summary Offences Act 1953 is amended to provide that for the purposes of section 41 of the Safety Act, the requirements are satisfied if a minor is in a declared public precinct and a police officer holds certain opinions (new section 66V). The Act interacts with the Residential Tenancies Act 1995 to extend termination grounds based on domestic abuse or abuse of a rooming house resident to include orders under the new Safety Act (Part 17). The Spent Convictions Act 2009 is amended to remove certain exclusions that had applied to the old screening regime. The Act also interacts with the Coroners Act 2003 by updating the definition of reportable death to refer to the Chief Executive under the Safety Act (Part 11). The Mental Health Act 2009 is amended to include the Chief Executive under the Safety Act in the Minister's functions (Part 16). The Carers Recognition Act 2005 is amended to include the Safety Act in the definition of carer (Part 6). The Act itself also provides for regulations to make saving or transitional provisions consequent on the commencement of the Child Safety (Prohibited Persons) Act 2016 (new section 170(3)(ca) inserted by Part 10).

The Act received Royal Assent on 12 December 2017 and came into operation in stages. The main commencement was 19 December 2017, with certain provisions commencing on 26 February 2018 (sections 22, 23, 26, 60, 147, 149(1), 150), on 22 October 2018 (sections 24, 25, 27 to 33, 35 to 42, 47, 48, 58, 61 to 66, 74 to 125, 129 to 131, 148, 149(2), 151 to 153), and on 1 July 2019 (sections 5 to 17, 43(2), 44, 67 to 73, 126 to 128, 132 to 146). Section 43(1) was deleted by the Statutes Amendment (Screening) Act 2019 (Act 9 of 2019) without ever coming into operation. The Act itself has been amended by subsequent legislation. The Children and Young People (Safety) (Miscellaneous) Amendment Act 2018 (Act 17 of 2018) inserted new sections 12(1), 13(1), 14(1), 23A, 26A, 31A and 31B, all commencing on 22 October 2018. The Statutes Amendment (Screening) Act 2019 (Act 9 of 2019) inserted new sections 8A and 8B in Part 2 and deleted section 43(1), all commencing on 1 July 2019. Part 2 (Transitional provisions relating to Child Safety (Prohibited Persons) Act 2016) expired on 30 June 2022 by operation of section 6. Part 3 (Transitional provisions relating to Children and Young People (Oversight and Advocacy Bodies) Act 2016) also expired on 30 June 2022 by operation of section 19. The transitional period defined in section 4(1) ended three years after commencement unless the Minister specified an earlier date; the Governor fixed dates for commencement of provisions that extended beyond that period, and the expiry of Parts 2 and 3 appears to align with the end of the transitional period. The legislative history table shows that the Act has had two principal amending Acts and several provisions have been inserted or amended. The Act remains in force for its Part 4 transitional provisions and for the many amendments it made to other Acts, which are now part of the law of South Australia.

The source text does not reference any litigation history. There are no case citations, no references to judicial decisions, and no mention of any court proceedings concerning the interpretation or application of this Act. The Act itself is primarily a transitional and machinery Act, and while it affects many other Acts, the source does not discuss how courts have treated any of its provisions. It is possible that litigation has arisen under the Acts it amended (for example, under the new working with children check requirements or the automatic cancellation of teacher registration under new section 24A of the Teachers Registration Act), but the source provides no information about such cases. The Act does include one provision that explicitly anticipates court or tribunal review: section 25A(8) of the Births, Deaths and Marriages Registration Act 1996 (inserted by this Act) provides that a person aggrieved by a Chief Executive decision under that section is entitled to review under section 157 of the Children and Young People (Safety) Act 2017. Section 25A(9) allows regulations to confer jurisdiction on the South Australian Civil and Administrative Tribunal for such reviews. Additionally, section 24A(3) of the Teachers Registration Act (inserted by this Act) provides that if a prohibition notice is set aside by SACAT or any other court, the automatic cancellation of the teacher's registration becomes void. These provisions show an awareness of potential litigation and provide mechanisms for it, but no actual litigation history is described in the source.

Several less obvious aspects of this Act can catch practitioners off-guard. First, Parts 2 and 3 have expired (as at 30 June 2022). Any transitional provisions that were relied upon for the recognition of old assessments as working with children checks (sections 7, 8, 8A, 8B, 9, 10, 11, 12, 13, 14, 15, 16) are no longer operative. A person who had an old assessment of relevant history cannot rely on that as a substitute for a current working with children check after the expiry of those provisions. Section 8A provided that sections 16, 17 and 18 of the Child Safety (Prohibited Persons) Act 2016 did not apply to persons assessed by a responsible authority, but that ceased 12 months after commencement or upon the occurrence of other events. Second, the transitional period defined in section 4(1) was initially up to three years, but many provisions (e.g., sections 37 and 38) contain their own expiry tied to the end of the transitional period. The approval of certain persons as approved carers under section 37 remains in force only until the end of the transitional period or cancellation, whichever occurs first. If the Minister never specified a different date, the transitional period ended three years after commencement (i.e., around 19 December 2020 for the core provisions). Practitioners must check the actual date and whether the approval has lapsed. Third, section 166A of the Children and Young People (Safety) Act 2017 (inserted by Part 10) limits tortious liability for acts of a child or young person under the guardianship or custody of the Chief Executive: no liability attaches to the Crown, Minister, Chief Executive or Department employees unless the child was acting as servant or agent within the scope of such employment or authority. This is a narrow exception and may surprise plaintiffs seeking to sue the State for harm caused by a child in care. Fourth, new section 110A (and the parallel section 21A in the Youth Justice Administration Act) requires a psychological or psychometric assessment determined by the Chief Executive for employment in certain residential facilities. This is an additional requirement beyond the working with children check, and there is a criminal offence for non-compliance with penalties up to $120,000 for bodies corporate. The definition of "employed" in section 110A(5) is very broad, covering self-employed persons, volunteers, religious workers, trainees, and even persons performing unpaid community work under a court order. Fifth, the name-change provisions in new section 25A of the Births, Deaths and Marriages Registration Act 1996 apply to children under guardianship for at least 24 continuous months or until age 18. The Chief Executive must consider the child's views and notify parents unless it is inappropriate to do so. However, the wording "unless the Chief Executive is of the opinion that it is not appropriate to do so" gives considerable discretion. There is no requirement for a court order, and the decision is reviewable under the Safety Act. Sixth, section 26A provides that proceedings under the repealed Act commenced but not finally determined before 22 October 2018 continue as proceedings under Chapter 6 of the Safety Act. This saves proceedings but may create uncertainty about the applicable procedures and powers. Seventh, the extensive amendments to the Family and Community Services Act 1972 delete many definitions (e.g., "foster parent", "children's residential facility", "foster care agency") and repeal entire divisions, but the Act itself is not repealed; it remains in force for maintenance provisions and other matters. This patchwork approach can cause confusion as to which provisions of the Family and Community Services Act remain operative.

Compliance requires attention to both the transitional arrangements (where still operative) and the amendments that impose ongoing obligations. For individuals who work with children or in child-related settings, the key step is to obtain a current working with children check under the Child Safety (Prohibited Persons) Act 2016. Relying on an old assessment of relevant history under the repealed Act is no longer sufficient because the transitional provisions in Part 2 of this Act have expired. Teachers must ensure that a working with children check has been conducted within the previous five years before they can be registered, and they must maintain that currency as a condition of registration (new sections 21, 24 of the Teachers Registration Act). The Teachers Registration Board is empowered to suspend a teacher's registration if the check is out of date, without a hearing (new section 33A). Teachers must notify the Registrar within seven days after a new working with children check is conducted (new section 28(4a)). If a teacher becomes a prohibited person, their registration is automatically cancelled, and the employer must report the dismissal or resignation to the Board within seven days (new section 37(1a)). Similarly, board members, registrars and staff of the Education and Early Childhood Services Board must have a current working with children check (new sections 22(2a), 27(2a), 28(1a) of the Education and Early Childhood Services Act). Organisations that were formerly subject to section 8C of the repealed Act and had approved policies and procedures will have those policies deemed to satisfy Chapter 8 of the Children and Young People (Safety) Act 2017, but only if they were in force immediately before commencement (section 36). Organisations should review whether those policies still meet the requirements of the new Act and update them if necessary, as the transitional recognition may have ceased with the expiry of transitional periods. Employers in residential facilities established under the Family and Community Services Act 1972 must ensure that all employees (broadly defined to include volunteers and others) undergo a psychological or psychometric assessment determined by the Chief Executive before starting work, unless the regulations provide an exemption (new section 110A). The same applies to training centres under the Youth Justice Administration Act 2016 (new section 21A). Failure to do so exposes both the employee and the employer to criminal penalties. For approved carers and licensees under the new Safety Act, the transitional provisions continue existing approvals and licences (sections 27, 28, 29), but they are subject to the conditions and oversight of the new Act. Carers should comply with any directions of the Chief Executive, including directions to submit to a working with children check (see sections 37(3), 38(3)). The Chief Executive may impose additional conditions by notice in writing. For government bodies, the main compliance task is updating all references, instruments and delegations to reflect the new nomenclature (Minister becomes Chief Executive, Families SA becomes Department per section 34). Practitioners advising clients should verify the current commencement status of each provision of this Act, as many commenced on different dates and some have expired. A careful review of the legislative history and the Government Gazette notices is essential.