Family and Community Services Regulations 2024

The Regulations use a small set of core concepts that determine scope and obligations. The key concepts are “residential care facility”, the Chief Executive’s duty to ensure “adequate arrangements”, the catalogue of prohibited treatments, the tightly limited circumstances in which an “employee” may use force, and the post‑use reporting and verification regime.

• Residential care facility: defined by reference to the Act as a facility established under s 36 of the Act (r 3). The Regulations apply only to those facilities so established; they do not define categories of children, categories of staff, or other types of placement within these Regulations. This cross‑reference anchors application of the Regulations to the statutory creation of facilities under the Act.

• Adequate arrangements and operational procedures: r 4 requires the Chief Executive to “ensure that adequate arrangements are in place” in a residential care facility for wellbeing, development and proper management, and to do so “through the implementation of operational procedures” (r 4(a)-(c)). The phrase “adequate arrangements” is not defined and is therefore a standards‑based obligation that will be applied factually to facilities. Operational procedures are required as the implementation vehicle of those arrangements.

• Prohibited treatment: r 5 sets a non‑exhaustive list of treatment types that must not be inflicted on a child in a residential care facility. The list includes corporal punishment (expressly defined as actions inflicting or intended to inflict physical pain or discomfort), isolation (with an example), psychological pressure or emotional abuse, deprivation of medical attention, basic food or drink, clothing or other essential items, deprivation of sleep, unjustified deprivation of contact with persons outside the facility, and any other treatment that is cruel, inhuman or degrading (r 5(a)-(g)). Some items include qualifiers, for example “unjustified” deprivation of contact, introducing a reasonableness/justification element.

• Use of force: r 6(1)-(2) restricts force to that “reasonably necessary” to prevent self‑harm or harm to others or to prevent significant damage to property; and in addition mandates use only as a last resort where no other intervention strategies are available, in the least restrictive way, for the shortest period possible, and proportionate in the circumstances (r 6(1)-(2)). These are layered constraints combining necessity, last‑resort, minimality and proportionality.

• Reporting and verification: r 6(3)-(4) requires an employee who uses force to prepare a written report “as soon as is reasonably practicable”, in a manner and form determined by the Chief Executive, including specified content (child’s name, names of employees involved or witnessing, date/time/location, nature and purpose/circumstances of force, and follow‑up action) (r 6(3)(a)(i)-(v)). The report must be verified by involved or witnessing employees either by certifying the accuracy in accordance with any CE determination or by providing a separate written report of known matters, and then submitted to the facility supervisor (r 6(3)(b)-(c); r 6(4)). The child must be offered the opportunity to prepare an account (r 6(5)-(6)) and may nominate helpers (r 6(7)), with an explicit exclusion that the nominated person may not have been present during the use of force or the incident leading to it (r 6(7) final limb).

Collectively these concepts establish a standards‑based duty framework with central executive discretion over form and verification, and require operationalisation inside facilities via procedures, staff training and record‑keeping.

The Regulations allocate responsibilities and constraints across identifiable actors. They do not create new public officeholders but impose duties on the Chief Executive and obligations on employees and supervisors in residential care facilities.

• The Chief Executive is the primary addressee of the duty in r 4. That office must “ensure that adequate arrangements are in place” in a residential care facility to secure childrens’ wellbeing, development and proper management through operational procedures. The Regulations also give the Chief Executive the power to determine the manner and form of written reports and to make determinations relevant to verification (r 6(3)(a); r 6(4)(a)). Therefore the Chief Executive decides procedural templates, verification standards and compliance architecture.

• Employees in residential care facilities are the group to whom the substantive behavioural constraints and reporting obligations apply. The Regulations govern when an employee may use force (r 6(1)-(2)); define post‑use reporting and verification duties that employees involved in or witnessing the use of force must comply with (r 6(3)-(4)); and implicitly prohibit employees from subjecting children to the forms of treatment listed in r 5. The Regulations do not define “employee”, so the term’s scope will be a question of interpretation against the Act and employment arrangements.

• Supervisors: r 6(3)(c) requires that the completed report be submitted to “the supervisor of the facility”. The Regulations therefore place a receiving‑and‑oversight role on the supervisor, but do not define that person, specify their functions beyond receipt of the report, or prescribe action upon receipt.

• Children placed in residential care facilities are the persons protected by the prohibitions and are given procedural rights after force is used: the right to be offered a reasonable opportunity to prepare an account (r 6(5)), and to have that account recorded in a specified manner (r 6(6)). They may nominate certain persons to assist in preparing an account (case manager, lawyer, cultural advisor or any other adult), subject to the exclusion that the nominated person was not present during the incident (r 6(7)).

• Facilities established under s 36 of the Act are the institutional objects of the regime (r 3). The Schedule repeals the Family and Community Services Regulations 2009, meaning operators previously governed by those Regulations will now fall under these Regulations.

Conspicuously absent from the Regulations are express penal provisions, inspection or review mechanisms, explicit departmental reporting chains for aggregated incidents, or definitions of retention periods for reports. The distribution of responsibilities is therefore (a) centralised on the Chief Executive for procedural determinations and ensuring arrangements exist, and (b) devolved operationally to facility employees and supervisors for compliance in day‑to‑day care and incident reporting.

The Regulations create several explicit duties and rights, focused on management, prohibition of specific treatments, restrictions on force, and a reporting/verification process. These are the operative obligations and procedural entitlements.

Duties

• Duty of the Chief Executive: Under r 4 the Chief Executive must ensure adequate arrangements are in place in residential care facilities to maintain childrens’ physical, psychological and emotional wellbeing, to promote social, cultural and educational development, and to ensure proper facility management through operational procedures. The duty is expressed in mandatory terms (“must ensure”) but is standards‑based rather than prescriptive in how these arrangements are to be achieved.

• Prohibitory duties on persons responsible for children’s care: r 5 states that, subject to the Regulations, a child in a residential care facility must not be subjected to specified treatments (for example corporal punishment, isolation, psychological pressure, deprivation of essentials, deprivation of sleep, unjustified deprivation of contact, and any treatment that is cruel, inhuman or degrading). This operates as a categorical prohibition on specified conduct within such facilities.

• Limits and duties relating to use of force: r 6(1) restricts employees to using only such force as is reasonably necessary to prevent harm to the child or others, or to prevent significant damage to property. r 6(2) adds procedural limits: force only as a last resort when no other intervention strategies are available, in the least restrictive way, for the shortest possible period, and proportionate.

• Reporting and verification duties: r 6(3)-(4) imposes a duty on an employee who uses force to prepare a written report as soon as reasonably practicable, containing specified particulars; to have it verified by involved or witnessing employees by certification or by separate written report; and to submit it to the facility supervisor. The form and manner of the report and the content of the verification may be subject to determinations by the Chief Executive (r 6(3)(a); r 6(4)(a)).

Rights

• Right of the child to be offered to provide an account: r 6(5)-(6) gives a child who was subject to force the right to be offered a reasonable opportunity to prepare an account of the use of force and the antecedent incident, and specifies how the account must be recorded if the child accepts the offer. If the child cannot write, the Regulations permit a nominated person to write on the child’s instructions, require the document to be signed by the nominated person and by the child (if able), and the account must be kept with the employee’s report.

• Right to nominate assistance: r 6(7) lists persons a child may nominate to assist in preparing an account , case manager or case worker, a lawyer, a cultural advisor, or any other adult , but prevents a child from nominating a person who was present during the use of force or the relevant incident.

Form of obligations

• Time and form qualifiers: Several duties are qualified by open‑ended phrases such as “adequate arrangements”, “reasonably necessary”, “as soon as is reasonably practicable”, “least restrictive”, “shortest period possible”, “proportionate”, and “reasonable opportunity”. These introduce standards of fact and reasonableness into duties and rights rather than bright‑line rules.

• Centralised procedural control: The Chief Executive may determine the manner and form of reports and the method of verification (r 6(3)(a) and r 6(4)(a)), meaning that compliance mechanics are dependent upon further administrative determinations rather than being fully specified in the Regulations.

The Regulations therefore create a mix of mandatory standards (for the Chief Executive and employees) and procedural rights for children, but leave specification and many application questions to fact, reasonableness tests and executive determination.

The Regulations do not include express penalty clauses, scheduled fines, or named enforcement officers within their text. There is no section creating offences or specifying civil remedies, no express power to issue improvement notices, and no direct enforcement process set out in the Regulations themselves.

What the text contains

• No penalty provisions: A careful reading of the operative provisions (rr 1-6 and Schedule 1) shows duties and prohibitions but no statutory penalties. The prohibitions in r 5 are expressed as mandatory obligations that “a child placed in a residential care facility must not be subjected to” specified treatments, but no penalty or enforcement mechanism is included in the Regulations for breach.

• Procedural reporting obligations: r 6 imposes internal reporting and verification duties when force is used, and requires submission of reports to the facility supervisor. These procedural requirements create an internal compliance architecture but do not, by themselves, prescribe enforcement consequences for non‑compliance.

Implications

• Reliance on the Act or other statutory/regulatory instruments: Because the Regulations are made under the Act, enforcement of the conduct requirements may be effected by powers, penalties or administrative regimes elsewhere in the Act or by departmental policy and administrative processes. The Regulations themselves do not specify that route, so compliance and enforcement will depend on what the Act provides and on agency practice. The Regulations refer to the “Act” (r 3) and facilities established under s 36 of the Act but do not set out how breaches are to be dealt with.

• Internal accountability mechanisms: The reporting and verification requirements in r 6 create an administrative trail intended to assist supervisory oversight and, potentially, external scrutiny. The requirement to verify reports “in accordance with any determination of the Chief Executive” (r 6(4)(a)) and to submit reports to the facility supervisor (r 6(3)(c)) shows a design that privileges internal documentation as a basis for accountability, leaving formal enforcement to be found elsewhere.

• Unspecified investigative or sanctioning pathways: The Regulations are silent about inspection, audit, external reporting to child protection authorities, referral to law enforcement, or disciplinary processes for employees who breach the prohibitions. Those pathways may exist under the Act or other statutory instruments, departmental guidance or employment contracts, but they are not created by these Regulations.

In short, the text imposes behavioural and documentation duties but does not itself create enforcement sanctions. Practitioners should therefore look to the Family and Community Services Act 1972 and departmental procedures to identify available enforcement routes and penalties for non‑compliance.

The Regulations are expressly subordinate to and made under the Family and Community Services Act 1972, and they reference that Act within their definitions. Outside that explicit link, the Regulations do not detail interactions with other statutory regimes in their text.

Express cross‑reference

• The sole statutory cross‑reference is to the Act. The Interpretation provision defines “Act” as the Family and Community Services Act 1972 and “residential care facility” as one established under s 36 of that Act (r 3). This anchors the Regulations to the Act’s definitions and powers and restricts their operational scope to facilities created under s 36. Any broader application to other forms of placement or child welfare settings would depend on whether those arrangements fall within s 36 of the Act.

Omitted cross‑references and implications

• No direct mention of child protection, criminal law, privacy or health statutes is made in the Regulations. The prohibited conduct in r 5 and the authorised limited use of force in r 6 may engage criminal or other statutory liability in other areas (for example physical assault, unlawful deprivation of liberty, or neglect under separate statutes). Those potential interfaces are not addressed in the Regulations themselves.

• Administrative and employment law interactions are not specified. The reporting duty to supervisors (r 6(3)(c)) and verification requirements (r 6(4)) create workplace processes, but there is no explicit statement about whether reports are to be used in disciplinary proceedings or how they intersect with workplace investigative obligations, confidentiality, or record retention laws.

• Repeal of earlier regulations: Schedule 1 repeals the Family and Community Services Regulations 2009. That repeal is an explicit legal interaction; operators and regulators must transition from the 2009 regime to the 2024 regime. The Regulations do not include transitional provisions setting out how outstanding matters under the 2009 Regulations are to be handled.

Practical consequence

• To determine full legal effect and enforcement avenues, users must consult the Act (including s 36) and any departmental policies, award or contract obligations, criminal statutes, child protection laws and privacy/health records laws. The Regulations set standards and reporting requirements within residential care facilities but rely on the Act and wider legal framework for broader enforcement and inter‑system interaction.

The instrument includes a concise legislative history and a Schedule that expressly repeals the previous subordinate legislation.

• Enactment and commencement: The Regulations are cited as the Family and Community Services Regulations 2024 (r 1). The commencement provision states that the Regulations come into operation on the day on which they are made (r 2). The legislative history footnote records the principal regulations as Year 2024, No 68, Gazette 11.7.2024 p 2156, with commencement on 11.7.2024 under r 2. Therefore the Regulations became operative on 11 July 2024.

• Repeal of previous Regulations: Schedule 1 repeals the Family and Community Services Regulations 2009. That is an express repeal of the earlier subordinate instrument; the 2009 Regulations are therefore no longer in force from the commencement date. No transitional provisions appear in the text to address ongoing matters under the 2009 Regulations.

• No other amendments recorded in the text: The Regulations as provided contain no subsequent amendment notes or historical notes other than the principal regulations entry and the repeal schedule. There are no entries showing later amending instruments, savings provisions, or transitional arrangements.

Implication for practitioners

• The replacement of the 2009 Regulations by this new instrument means that compliance obligations, reporting formats and management duties may have changed. Because the Regulations leave certain matters to determinations of the Chief Executive (for example report forms and verification processes, r 6(3)(a) and r 6(4)(a)), departmental administrative instruments or policy documents that followed enactment will be central to operationalising compliance. Those subsequent determinations and any departmental circulars are not included in the Regulations and must be sought from the agency or the Gazette record.

• The absence of transitional provisions in the Regulations means practitioners should confirm whether the department has issued guidance on handling matters that arose before commencement but were unresolved at the date of repeal.

The text of the Regulations contains no report or schedule of judicial decisions, and no litigation history is included in the instrument.

• No cases cited in the Regulations: The Regulations provide no references to any judicial decisions or case law. The instrument is purely regulatory text and a repeal schedule.

• No recorded litigation history within the instrument: The Legislative history notes provide the Gazette reference and commencement date, but there is no information about legal challenges, appeals, or proceedings arising under the Regulations. The Schedule simply records the repeal of the 2009 Regulations.

Implications

• Because the Regulations are recent and short, if litigation were to arise it would likely focus on interpretation of standards in the text (for example the meaning of “adequate arrangements”, “reasonably necessary”, “as soon as is reasonably practicable”, “least restrictive”, “proportionate”), the scope of the Chief Executive’s power to determine reporting forms and verification processes, and the interplay between these Regulations and the Family and Community Services Act 1972 or other statutory regimes. None of that litigation has been recorded in the instrument provided.

• Practitioners seeking litigation precedent must therefore consult current case law under the Act, cases involving the prior 2009 Regulations (if any exist) and any administrative actions taken under departmental policy, none of which are supplied here.

This short regulatory instrument contains a number of drafting features and omissions that create operational and compliance pitfalls for agencies and facility operators. The following are concrete points to watch, rooted in the text.

Unspecified definitions

• The Interpretation provision defines only “Act” and “residential care facility” (r 3). Core operational terms are undefined: “employee”, “supervisor”, “child”, “operational procedures”, “intervention strategies”, “reasonably practicable”, “adequate arrangements” and “least restrictive way” are all left without textual definition. That absence means disputes over scope and application are likely to turn on statutory interpretation, departmental policy, employment contracts and factual circumstances.

Centralised discretion over reporting mechanics

• The Chief Executive determines the “manner and form” of written reports and the method of verification (r 6(3)(a); r 6(4)(a)). That central discretion means operators cannot finalise their compliance systems until those determinations are published. If the Chief Executive’s determinations are delayed, facilities may be uncertain about what form constitutes compliance.

Ambiguity around “as soon as is reasonably practicable”

• r 6(3) requires a written report “as soon as is reasonably practicable” after use of force. The phrase is open‑ended and will require context‑specific analysis; no maximum time frame or urgency standard is provided. That creates uncertainty about timeliness for internal supervision and for external oversight if reports are delayed.

Documentation retention and use not specified

• The Regulations require reports to be verified and submitted to the supervisor and an account of the child to be kept with the report (r 6(3)-(6)), but they do not state how long records must be retained, who may access them, or their confidentiality status. Practitioners must therefore determine record retention and disclosure policies under other legal instruments or departmental guidance.

Operational difficulty in small facilities

• r 6(7) prohibits a child nominating a person who was present during the use of force as the person to write the child’s account. In small facilities where many adults may have been present, this restriction can practically limit the child’s choices for assistance, which may present procedural challenges in ensuring the child’s account is recorded promptly.

No sanctions specified

• The Regulations prohibit specified treatments (r 5) but include no penalties or enforcement pathway. Organisations and individuals seeking to rely on these Regulations to support sanctions will need to identify enforcement tools in the Act or other legislation; the Regulations alone do not provide that mechanism.

Broad and variable standards

• Key obligations are phrased as standards (for example “adequate arrangements”, “proportionate”, “reasonably necessary”, “least restrictive”) that require factual assessment. This increases litigation and compliance risk because outcomes may hinge on subjective evaluations and retrospective reviews.

Potential interaction gaps with other legal duties

• The Regulations do not address mandatory reporting duties to child protection authorities, criminal reporting obligations where applicable, or how these internal reporting requirements interact with privacy and health records statutes. Practitioners must map these external requirements onto the internal reporting obligations set out in r 6.

No transitional provisions from the 2009 Regulations

• The Schedule repeals the 2009 Regulations but the text includes no transitional provisions. Operators should check for departmental guidance about handling legacy matters and records created under the 2009 regime.

Collectively these “gotchas” require agencies and facilities to make policy decisions, set out operational procedures, and seek clarity from the Chief Executive or the administering department to fill the regulatory gaps left by the text.

Compliance requires a combination of policy, training, documentation, supervision and administrative determinations. The Regulations allocate the responsibility for many of these steps to the Chief Executive and require facilities to implement operational procedures. The following is a practical compliance checklist derived from the Regulations’ text.

1. Establish Chief Executive determinations and publish them

   • The Chief Executive should issue and publish the “manner and form” for written reports required by r 6(3)(a) and determinations governing verification under r 6(4)(a). Until such determinations are made public, facilities lack the definitive templates required by the Regulations.

2. Draft and implement operational procedures

   • In accordance with r 4(c), facilities must have operational procedures to ensure proper management and to implement arrangements for wellbeing, development and management per r 4(a)-(b). Procedures should explicitly reflect the prohibitions in r 5 and the use‑of‑force limits in r 6.

3. Update staff policies and training

   • Train all staff who qualify as “employees” (as understood under the Act and employment arrangements) on the prohibited treatments in r 5, including the explicit ban on corporal punishment, isolation as described, deprivation of essentials, and the prohibition on cruel, inhuman or degrading treatment. Train staff on the use of force standards in r 6(1)-(2): reasonable necessity, last resort, least restrictive means, shortest period and proportionality. Training should include alternatives and “other intervention strategies” referenced in r 6(2)(a).

4. Design internal incident reporting workflow

   • Implement a process to ensure that where force is used employees prepare written reports “as soon as is reasonably practicable” per r 6(3), including the mandatory content items (r 6(3)(a)(i)-(v)). Establish a verification step for involved and witnessing employees consistent with the Chief Executive’s determination (r 6(4)). Ensure reports are submitted to the facility supervisor (r 6(3)(c)).

5. Child account process

   • Create a clear, child‑centred process to offer children a reasonable opportunity to prepare an account (r 6(5)), including accessible methods for children who cannot write (r 6(6)(b)). Maintain the child’s account together with the staff report as required by r 6(6).

6. Nomination safeguards

   • Advise children on the persons they may nominate under r 6(7) (case manager, lawyer, cultural advisor, other adult) and implement checks to prevent nomination of any person who was present during the incident.

7. Supervisor role and oversight

   • Designate supervisory responsibilities for receiving and reviewing reports submitted under r 6(3)(c). Document the review, follow‑up actions and any referrals or support measures resulting from the incident, because the report must include “any follow‑up action undertaken” (r 6(3)(a)(v)).

8. Record‑keeping and confidentiality

   • Although the Regulations do not prescribe retention periods, facilities should adopt a records management policy compliant with applicable archive, privacy and child protection laws, and make explicit how reports will be stored, who may access them, and how long they will be retained. Keep the child’s account together with the relevant report as required by r 6(6).

9. Policies about contact with external persons

   • Implement policies clarifying when deprivation of contact with persons outside the facility might ever be justified, given r 5(f) prohibits “unjustified deprivation of contact”. Procedures should set out criteria for justification and require documentation.

10. Review and quality assurance

    • Ensure the Chief Executive’s obligations under r 4 are met by regular audits of arrangements, staff competencies, training records, and incident reporting compliance. Because the Regulations do not prescribe enforcement, internal quality assurance will be the primary mechanism for demonstrating compliance.

11. Liaise with legal and regulatory bodies

    • Because the Regulations do not set out enforcement pathways or interaction with other laws, facilities should liaise with the administering department to clarify how these reports will be used, whether reports will be shared with child protection authorities, how they interact with criminal reporting duties, and whether departmental guidelines impose additional obligations.

12. Transitional matters from 2009 Regulations

    • As Schedule 1 repeals the 2009 Regulations, facilities should identify any outstanding matters governed by the 2009 instrument and seek guidance from the Chief Executive or the administering agency about transitional handling.

Following these steps will operationalise the duties and rights in the Regulations. Because the Regulations leave certain matters to the Chief Executive and to reasoned factual assessments, facilities should adopt a conservative approach informed by departmental determinations, legal advice and clear documentation.