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LEGISLATIVE ASSEMBLY FOR THE
AUSTRALIAN
CAPITAL TERRITORY
CHILDREN AND
YOUNG PEOPLE AMENDMENT BILL
2013
EXPLANATORY
STATEMENT
Circulated by
Shane Rattenbury MLA
Introduction
This explanatory statement relates
to the Children and Young People Amendment Bill 2013 as presented by Mr Shane
Rattenbury MLA in the Legislative Assembly. It has been prepared in order to
assist the reader of the Bill and to help inform debate on it. It does not form
part of the Bill and has not been endorsed by the Assembly.
The Statement
must to be read in conjunction with the Bill. It is not, and is not meant to be,
a comprehensive description of the Bill. What is said about a provision is not
to be taken as an authoritative guide to the meaning of a provision, this being
a task for the courts.
Overview
The Bill is designed to
address some uncertainty in the interpretation of the Children and Young
People Act 2008 that has come about because of advice provided by the
Solicitor General.[1]
The advice was in response to an incident and subsequent report into the incident by the Public Advocate that occurred in 2011.[2]
The Bill relates to part 15.4 of the Act and ensures that the obligations
placed on the Director-General when giving care responsibility for a child or
young person in out of home care are mandatory.
The Bill articulates all
the possible daily care arrangements that can be put in place for children and
young people in the care of the Territory. The Bill provides that children and
young people in the care of the Territory must be placed with an out of home
carer, as defined in the Act, unless one of four defined circumstances applies.
This means that when a child or young person is placed in the care of someone
else that person must fulfil the criteria of an ‘out of home carer’
in the Act, unless one of the stated exceptions applies. In the case of care
entities this means that the Director-General must have undertaken the
assessment process necessary to ensure that the entity is a suitable entity to
care for the child or young person.
Human Rights
The
Bill improves the protection of the right of a child to the protection needed by
the child because of being a child (see section 11 of the Human Rights Act
2004). As a result of the advice provided by the Solicitor General that the
scheme in place is not mandatory there is a reduction in the level of protection
provided by the Act for the welfare of children and young people in the care of
the Director-General. By clarifying that the protections in place in the Act for
this particularly vulnerable group are mandatory and clearly articulating the
options for the care of children and young people in the Territory’s care,
the Bill improves the protections and safeguards in place for the welfare of
those children and young people.
Delegation of legislative
power
The Bill does not delegate any legislative power to any other
person or body.
Notes on Clauses
Clauses 1-3 Name of
Act, Commencement, Legislation amended
These are formal clauses setting
out the name of the Act and its commencement date; 30 days after notification
day, as well as the Act it amends; the Children and Young People Act
2008.
Clauses 4 and 5 Notes
These clauses omit 2 existing
notes to the Act. The notes are not necessary and provide limited if any
assistance to the reader and as such will be removed from the Act.
Clause 6 Section 512 heading
This clause inserts a new heading
to section 512, this is because of the substantive change to the section set out
below in clause 7. The new heading sets out that the Director-General must place
a child or young person in out of home care. Under the current Act the heading
provides that the Director-General may place child or young person in out of
home care.
Clause 7 Section 512 (1)
This clause amends section
512(1) of the Act to address any uncertainty around whether or not the
requirements for placing children and young people in out of home care are
mandatory. The clause provides that whenever the Director-General has daily care
responsibility for the child or young person the Director-General must
place the child or young person with an out of home carer. An out of home carer
is defined in section 508 as either:
(a) a kinship carer for the child or
young person; or
(b) a foster carer for the child or young person; or
(c)
a residential care service for the child or young person.
Sections
509-511 then define the requirements for each of these categories. In relation
to a residential care service the amendment ensures that the entity must have
previously been determined to be a suitable entity (see section 520) for a child
or young person to be placed in their care.
However in a defined range of
limited circumstances the Director-General may also place the child or young
person in another arrangement if certain conditions are fulfilled. These are the
only circumstances where a child or young person may be placed in another
arrangement.
These circumstances are:
1. A child or young person
may be placed in a health facility (defined in the dictionary as a hospital or
other facility where health services are provided) only if a doctor (see
Legislation Act Dictionary Part 1) states in writing that it is necessary for
the wellbeing of the child or young person for daily care to be provided in the
facility and the Director-General is satisfied that appropriate support services
can continue to be provided to the child or young person and further that those
aspects of the child or young person’s care plan that can be followed
while the child or young person is in the health facility will be followed.
These requirements are intended to ensure that should a child or young person be
placed in a health facility the Director-General must ensure that support
services continue to be provided to the child or young person in the
Territory’s care while the child or young person is in the health
facility.
2. A young person who is at least 16 years of age may be placed
in an independent living arrangement if the Director-General is satisfied that
such an arrangement is appropriate for the young person, that the accommodation
and support services available best meet the needs of the young person and that
the arrangement is consistent with the young person’s care plan.
This provision recognises that there will be circumstances where the
young person is nearly an adult, capable of looking after themselves and they do
not want to live with an out of home carer. As a result the most appropriate
arrangement that can be put in place for them may be for them to live
independently. In this circumstance the Director-General may place the young
person in an independent living arrangement only if the arrangement, including
both the physical accommodation and the support services available, best meet
the needs of the young person. Similar to the requirements when a child or young
person is placed in a health facility the clause seeks to ensure that the
Director-General continues to play an active role in the care of the young
person and recognises that even though it may be appropriate for them to live
independently they will not be completely independent and will still require a
significant level of support to be provided to them.
3. A child or young
person may also be placed with their parent if the Director-General considers it
appropriate. Where a parent can provide daily care for the child or young person
and it is in the best interests of the child or young person to live with their
parent it is appropriate that the system facilitate the return of children and
young people to their family. This is consistent with other provisions of the
Act that encourage changes to be made so that children and young people who have
come into the care and protection system can be returned to their
parents.
4. New subsection 1A clarifies that the requirements for placing
children and young people in out of home care are subject to a court order that
provides otherwise. That is where a court orders that a child is to reside in a
place the Director-General must give effect to that order and there is no
conflict with any of the Director-General’s obligations under the
section.
The clause imposes appropriate safeguards to ensure that the
decision on how the child or young person is to be cared for, no matter how
short that period of time is, is made having properly assessed the person or
entity that will be entrusted with the care of the child or young person.
Alternatively if another arrangement is required for the provision of daily care
that best suits the young persons needs, that arrangement must meet the criteria
required to ensure the wellbeing of the child or young person.
Clause
8
Similar to clauses 4 and 5 this clause also removes a note to section
731(1)(3) that was unnecessary and did little to assist the reader.
[1] ACT Government Response to
The Report of the Public Advocate of the ACT Review of the Emergency Response
Strategy for Children in Crisis in the ACT, Attachment B, 2011, Available at
http://www.dhcs.act.gov.au/__data/assets/pdf_file/0006/262374/Government_response_to_the_PA_Interim_Report_Nov212011.pdf.
[2]
Review of the Emergency Response Strategy for Children in Crisis in the
ACT, Interim Report, Public Advocate of the ACT, 2011. Available at http://cdn.justice.act.gov.au/resources/uploads/PAACT/publications/Interim_Report_FINAL_pdf.pdf.