Children, Young Persons and Their Families Act 1997

The Act affects a wide range of persons and entities. Primarily, it concerns children who are, or are suspected of being, at risk. It imposes obligations on parents, guardians, and family members to maintain and protect children (sections 73, 91). It directly regulates the conduct of "prescribed persons" under section 14(1), who are mandatory reporters: these include medical practitioners, registered nurses, midwives, dentists, dental therapists, dental hygienists, oral health therapists, psychologists, police officers, probation officers, principals and teachers in educational institutions, child care providers, managers of approved education and care services, members of the clergy of any church or religious denomination, members of the Tasmanian Parliament, employees or volunteers in government agencies that provide health, welfare, education, child care or residential services for children, employees or volunteers in organisations receiving Crown funding for such services, and any other person of a class determined by the Minister (sections 14(1)(a)-(l)). The Act also creates obligations for information-sharing entities, which include prescribed persons, State Service officers, persons conducting health service establishments, controlling authorities of approved hospitals, disability services providers, drug or alcohol treatment service providers, and organisations receiving referrals from the Secretary or a Community-Based Intake Service (section 3(1) definition of "information-sharing entity", as amended). Non-government organisations that provide residential care for children may be granted custody or guardianship under court orders (sections 42(4)(b)(iii), 46(2)(b)(iii)). Community-Based Intake Services are organisations that enter into agreements with the Secretary (section 53D) and receive referrals and undertake preliminary inquiries (section 53E). The Secretary and employees of the Department are the primary administrative actors. The Court (the Magistrates Court, Children's Division) hears applications for assessment orders, care and protection orders, and related matters. Facilitators approved under section 86 convene and facilitate family group conferences. The Act also applies to interstate officers and Children's Courts in participating States when child protection orders or proceedings are transferred under Part 8. In summary, the Act casts a net over every adult who has care of children, every professional who works with children, and every organisation involved in child welfare.

The Act imposes significant duties on individuals and confers corresponding rights on children and families. The most prominent duty is the mandatory reporting obligation in section 14(2): a prescribed person (as listed in section 14(1)) who, in carrying out official duties or work (paid or voluntary), believes or suspects on reasonable grounds, or knows, that a child has been or is being abused or neglected, or is an affected child under the Family Violence Act 2004, or that there is a reasonable likelihood of a child being killed or abused or neglected by a person with whom the child resides, or (while a woman is pregnant) that after birth the child is likely to suffer abuse or neglect or require medical treatment due to behaviour before birth, must inform the Secretary or a Community-Based Intake Service as soon as practicable. The penalty is a fine not exceeding 20 penalty units (section 14(2)). The Act provides a defence if the person honestly and reasonably believed that the Secretary or a Community-Based Intake Service had already been informed by another person, or if the person complied with approved guidelines (section 14(6)). Notably, a member of the clergy cannot refuse to comply on the ground that the information was communicated during religious confession (section 14(7), overriding section 127 of the Evidence Act 2001). Separately, section 13(1) imposes a general responsibility on any adult who knows, believes or suspects on reasonable grounds that a child is suffering, has suffered or is likely to suffer abuse or neglect to take steps to prevent its occurrence. This is not an offence provision but a statement of responsibility.

The Secretary has a duty to consider the best interests of the child as paramount and to observe the Part 1A principles when making provision for a child's care (section 69(2)). The Secretary must also keep guardians informed about where a child is placed (section 69(3)). Children have rights under the Act: the right to have their views considered (section 56, section 10F), the right to be represented by an Australian legal practitioner in proceedings (section 59), and the right to participate in family group conferences where appropriate (section 33). Guardians have the right to be notified of applications and to be heard (sections 64, 65). The Act also provides immunity from civil or criminal liability for persons who answer questions or provide reports or information in good faith (section 101A) and for persons engaged in administration of the Act who act in good faith (section 111).

The Act creates a range of criminal offences with escalating penalties. The most serious offence is failing to protect a child from harm (section 91(1)): a person who has a duty of care who intentionally takes or fails to take action that could reasonably be expected to result in the child suffering significant harm from physical injury or sexual abuse, emotional or psychological harm damaging development, or significant harm to physical development or health, faces a fine not exceeding 50 penalty units or imprisonment for up to 2 years, or both. Proceedings may only be brought after consultation with the Secretary (section 91(2)). The offence of leaving a child unattended (section 92) carries a penalty of up to 15 penalty units or 3 months imprisonment, with proceedings similarly requiring consultation with the Secretary. Hindering or obstructing the Secretary, a police officer, or another person in performing functions under the Act (section 100(1)) carries up to 50 penalty units or 2 years imprisonment, and a police officer may arrest without warrant a person believed to be hindering or obstructing (section 100(2)). Contravening an assessment order or interim assessment order (sections 22(8), 26(4)) carries a fine of up to 40 penalty units or 12 months imprisonment, or both. The same penalty applies for contravening a care and protection order or interim care and protection order (section 50). Failure to answer a question or provide a report or information when required (section 101) attracts a fine of up to 20 penalty units or 6 months imprisonment. Making a false or misleading statement (section 102) carries up to 50 penalty units or 2 years imprisonment. The duty of confidentiality (section 103) for persons engaged in administration or who attend family group conferences is backed by a penalty of up to 50 penalty units or 2 years imprisonment, with exceptions for disclosure to the person themselves, for use in criminal or civil actions against an alleged perpetrator, for use by the State in responding to actions, for commissions of inquiry, and for employment screening or disciplinary processes (sections 103(2A)-(2D)). Publication of discussions or decisions of a family group conference (section 40) is punishable by a fine of up to 50 penalty units or 18 months imprisonment. Other offences include harbouring or concealing a child absent from placement (section 95, up to 15 penalty units or 3 months), removing or inducing a child to be absent (section 96, same penalty), and lurking about a placement (section 99, same penalty). Proceedings for any offence may be commenced within 2 years after the occurrence of the act or omission (section 109).

The Act contains several provisions addressing its relationship with other legislation. Section 8 provides that international conventions relating to children to which Australia is a signatory, such as the UN Convention on the Rights of the Child and the International Declaration on the Rights of Indigenous Peoples, are extrinsic material for the interpretation of the Act (referring to section 8B of the Acts Interpretation Act 1931). Section 111A restricts disclosure under the Right to Information Act 2009: the Secretary or a Community-Based Intake Service must not provide information that has been provided under this Act by an information-sharing entity. The Right to Information Act 2009 also does not apply to the identity of a notifier or any information that may lead to identification of the notifier (section 16(7)), nor does it apply to family group conference reports or decisions (section 40(4)). The Personal Information Protection Act 2004 applies to information received and provided under this Act to the extent not inconsistent, and a Community-Based Intake Service is a personal information custodian for the purposes of that Act (section 111B). Section 111C provides for a national database, and the Personal Information Protection Act 2004 does not apply to information recorded or stored in or accessed from that database to the extent specified. Section 111D allows the Secretary to disclose information to a person in another jurisdiction if necessary for them to perform duties under a child welfare law or interstate law as defined in Part 8.

The Act interacts with the Family Violence Act 2004 by deeming a child who is an "affected child" under that Act to be at risk (section 4(1)(ba)). In relation to family law, a care and protection order granting guardianship until 18 ceases to have effect on the making of a parenting order under Part VII of the Family Law Act 1975 (Cth) in respect of the child, with revival if the application is withdrawn or refused (section 48(2)-(3)). The Act also interacts with the Education Act 2016: non-attendance at school without lawful excuse for a child under 16 is a ground for being at risk (section 4(1)(d)). Restraint orders under Part XA of the Justices Act 1959 may be made in connection with applications for assessment orders or care and protection orders (sections 23, 27, 43, 47). The Act also references the Adoption Act 1988 (section 70), the Youth Justice Act 1997, and the Sentencing Act 1997 (sections 77L, 77P). The evidence provisions in section 63 direct that proceedings are informal, not bound by the rules of evidence, and evidence is considered on the balance of probabilities.

The Act has been significantly amended over time. The table of amendments in the source shows the following key amending Acts: No. 78 of 1999 (substituted Part 8 and amended section 4, effective 1 July 2000); No. 86 of 2000 (amended definitions of employee of the Department and Government Agency, effective 1 May 2001); No. 82 of 2000 and No. 103 of 2000 (minor amendments); No. 20 of 2001 (amended prescribed persons list); No. 62 of 2001 (child care); No. 9 of 2003 (probation officers, contribution orders); No. 45 of 2003 (relationships); No. 76 of 2003 (authorised police officer, recognised Aboriginal organisation); No. 67 of 2004 (family violence); No. 25 of 2005 (Aboriginal child definition); No. 22 of 2009 (inserted Part 5A on information sharing, Part 5B on Community-Based Intake Service, amended sections 3, 13, 14, 16, 17, 17A, 18, 42, 48, 49, 71, 79, 110A, 111A, 111B - effective 1 Aug 2009); No. 15 of 2011 (amended definitions of risk notification and notifier, repealed section 15, effective 28 Jun 2011); No. 64 of 2013 (major amendments: substituted sections 7, 8, inserted Part 1A principles (sections 10A-10G), amended sections 3, 4, 12, 19, 22, 30, 31, 32, 36, 41, 42, 42A, 44, 45, 46, 48, 49, 54, 56, 57, 58, 63, 69, 70, 71, 77O, 86, 97, 104, 111A, and repealed sections 9, 55, 84, 85, Schedule 3 - effective on various dates: 1 Jul 2016, 1 Oct 2016, 28 Feb 2018); No. 2 of 2016 (repealed Divisions 1 and 2 of Part 9, Schedules 1 and 2 - effective 1 Jul 2016); No. 47 of 2016 (education references); No. 29 of 2019 (added clergy and MPs as prescribed persons, amended section 14(7) on religious confession, effective 2 Oct 2019); No. 4 of 2021 (amended section 103 to add exceptions to confidentiality, effective 1 Mar and 22 Apr 2021); No. 22 of 2021 (added sections 111C on national database and 111D on disclosure to other jurisdictions, effective 12 Nov 2021); No. 6 of 2025 (amended definition of information-sharing entity for disability services provider, effective 1 Jul 2025). The Act was originally assented to in 1997 and commenced on a day to be proclaimed (section 2). This amendment history shows a move toward stronger reporting obligations, information sharing, recognition of Aboriginal child placement principles, and integration with national databases.

The Act itself does not name any cases, and the source text does not contain references to any judicial decisions. However, as a piece of child protection legislation, it is likely to have been litigated in the Magistrates Court (Children's Division) and on appeal to the Supreme Court of Tasmania. Typical issues that arise in litigation under similar Acts include: the interpretation of "at risk", particularly whether the grounds under section 4 are made out; the standard of proof (balance of probabilities per section 63); the application of the best interests principle; procedural compliance with notice requirements (section 65); the validity of warrants issued under sections 19, 20, 97, and 104; and the exercise of the Secretary's powers to take children into custody under section 21. The Act provides for appeals from decisions of the Court under Part 8 (sections 77M, 77R) and generally appeals lie to the Supreme Court under the Magistrates Court (Children's Division) Act 1998. The confidentiality of notifier identity under section 16 has been litigated in other jurisdictions and may have been considered in Tasmania. Because the Act expressly incorporates international conventions as extrinsic material (section 8), there may be arguments based on the UN Convention on the Rights of the Child. Practitioners should also consider the interaction with the Family Law Act 1975 (Cth) where parenting orders may affect state care orders (section 48). No specific reported decisions are available from the source provided.

Several provisions can catch practitioners off guard. First, the mandatory reporting obligation in section 14(2) applies not only when a prescribed person "knows" but also when they "believe or suspect on reasonable grounds" that a child has been or is being abused or neglected. The threshold is low, and the obligation is to inform as soon as practicable. There is no requirement that the child be "at risk" under section 4; the trigger is belief or suspicion of abuse or neglect or that the child is an affected child under the Family Violence Act 2004. The duty extends to prenatal situations (section 14(2)(c)). The penalty of 20 penalty units applies, and the defence under section 14(6) is limited - it is not enough that the person reported internally; they must have complied with approved guidelines or honestly and reasonably believed the Secretary had already been informed. Second, the confidentiality provision in section 16 makes it an offence to disclose the identity of a notifier, with a penalty of up to 40 penalty units or 12 months imprisonment. Disclosure is permitted only in the course of official duties under the Act (with consent, to a law enforcement agency, or by court order under stringent criteria in section 16(5)). The identity is also exempt from the Right to Information Act 2009. Third, the Act's definition of "guardian" is very broad (section 3(1)) and includes any person who "generally acts in the place of a parent" and has done so for a significant length of time. This can include relatives, de facto partners, or even foster carers in some circumstances, imposing obligations and rights they might not anticipate. Fourth, the Secretary may retain a child in custody for up to 120 hours under section 21 if assessment warrants it, and this period does not require a court order. The clock starts when the child arrives at a place or person under section 20. Missing the deadline could invalidate further detention. Fifth, the limitation on adjournments: under section 25, the Court must not adjourn an assessment order application for more than 14 days unless exceptional circumstances, and may not adjourn more than once. Similarly, for care and protection order applications, the Court must not grant adjournments so that the period between lodging the application and the commencement of the hearing exceeds 10 weeks unless reasonable grounds (section 45). These strict timeframes demand fast case preparation. Sixth, section 103 confidentiality applies broadly to "any person engaged in the administration of this Act" and to those attending family group conferences. The exceptions added in 2021 (sections 103(2A)-(2D)) are specific and must be carefully followed; improper disclosure can result in 2 years imprisonment. Seventh, the offence of failing to protect a child from harm (section 91) applies to any person with a duty of care, not just parents, and the act or omission must be intentional but the result only "could reasonably be expected." It is a strict liability offence in the sense that the prosecution does not need to prove actual harm occurred (section 91(3)). Eighth, the Act allows warrants to be issued by telephone (Schedule 4), and the record made by the applicant is taken to be the warrant. Practitioners should ensure proper documentation. Finally, the interstate transfer provisions (Part 8) have strict time limits for appeals: 13 working days for transfer of orders (section 77M) and 3 working days for transfer of proceedings (section 77R). These cannot be extended by the Supreme Court.

Compliance with the Act requires attention to reporting obligations, documentation, confidentiality, and procedural requirements. For prescribed persons under section 14: develop internal policies that ensure any employee or volunteer who forms a belief or suspicion of abuse or neglect reports immediately to the Secretary or a Community-Based Intake Service. The report must include the observations, information, opinions, and grounds upon which the belief or suspicion is based (section 14(3)). Maintain a log of reports made. Ensure that the internal reporting chain does not delay external notification - the Act requires reporting "as soon as practicable." Organisations should designate a responsible officer to handle notifications and liaise with the Department. For organisations receiving risk notifications: ensure that only authorised persons handle the information and that the identity of the notifier is kept confidential. Section 16 prohibits disclosure except in limited circumstances; train staff accordingly. For organisations that are information-sharing entities under section 3(1): comply with requests from the Secretary for information relating to the safety, welfare or wellbeing of a relevant person within the specified period (section 53B(2)). The entity may also voluntarily share information if satisfied it relates to safety, welfare or wellbeing (section 53B(3)). Such disclosures are protected from liability if made in good faith. For Community-Based Intake Services: enter into an agreement with the Secretary (section 53D), comply with CBIS guidelines (section 53F), and perform the functions in section 53E including preliminary inquiries and referrals. For the Secretary and Department employees: always act in accordance with the Part 1A principles (sections 10A-10G), ensure the best interests of the child are paramount (section 10E), and consider the views of the child and family. When exercising powers to require reports or answer questions, ensure the request is authorised by an assessment order, interim assessment order, or the Act itself. Provide evidence of authority before exercising powers (section 105). For facilitators: be approved by the Secretary (section 86), comply with guidelines (section 88), ensure proper consultation with the child, family, and where applicable, recognised Aboriginal organisations (section 32). Document decisions of family group conferences and adhere to confidentiality (section 40). For all persons involved in proceedings before the Court: ensure proper service of applications in accordance with section 65, including personal service on a child aged 10 or over. The child must be represented by an Australian legal practitioner unless the child has made an informed decision not to be (section 59). Courts should apply sections 63 and 54. For any person dealing with personal information obtained under the Act: comply with section 103 confidentiality obligations. Only disclose information as permitted, including to the person themselves, for use in criminal or civil actions against an alleged perpetrator (with identity protection for others), for employment screening, or as authorised by law. For organisations employing persons who have contact with children: be aware that the Act's confidentiality exceptions now allow disclosure for employment screening and disciplinary processes (section 103(2A)(e)), but procedural fairness must be afforded (section 103(2C)). Finally, for anyone involved in interstate transfers: follow the detailed procedures in Part 8, obtain consents, allow for review and appeal periods, and register orders promptly with the Court.