Children’s Guardian Act Rolls Out in NSW


Significant sections of the Children’s Guardian Act 2019 (NSW) commenced on 1 March 2020, enlivening important reportable conduct duties. Read on to see if these apply to your organisation and what you need to do to satisfy the reporting requirements.

This training brochure applies to all organisations in NSW that provide services or interact with children.

Children’s Guardian Act 2019 No 25 (NSW)

Significant sections of the Children’s Guardian Act 2019 No 25 (NSW) (the CG Act) commenced on 1 March 2020.  The Office of the Children’s Guardian continues under the CG Act, with the Children’s Guardian now being responsible for the administration of the Community Visitor scheme in relation to out-of-home care for children (previously administered by the Ombudsman).

Additionally, the Act has made amendments to various existing Acts and Regulations, as outlined below.

Reportable conduct

Significantly, the commencement of the CG Act has removed the reporting of reportable allegations or convictions from the Ombudsman under the Ombudsman Act 1974 (NSW) to the Children’s Guardian.  Relevant provisions are discussed below.

Notably, the CG Act includes religious bodies and agencies that engage contractors who work with children, into the Reportable Conduct Scheme under the Child Protection (Working With Children) Act 2012 (NSW). Section 27 of the CG Act provides that employees of relevant entities are obligated to report a reportable allegation or reportable conviction regarding another employee to the head of the entity, or in the case where the employee in question is the head of the entity, the allegation or conviction must be reported to the Children’s Guardian.  Under section 29 of the CG Act, the head of a relevant entity is required to give notification to the Children’s Guardian of any reports made to the head under section 27.  Failing to provide notice to the Children’s Guardian under section 29 carries a penalty of 10 penalty units (currently $1,100.00).

Part 4, Division 4 of the CG Act provides for investigations of reportable allegations and convictions.  Under Division 4, a relevant entity may suspend an investigation if advised by the Commissioner of Police or the Director of Public Prosecutions that such an investigation may prejudice a police investigation or court proceeding.  Prior to suspending an investigation, the relevant entity must consult with the body providing the initial advice.

Under section 36 of the CG Act, reports about investigations or determinations made by a relevant entity must be prepared and given to the Children’s Guardian within 30 days after the entity received a report under section 27 of the CG Act.  Failing to prepare a report and failing to give a report to the Children’s Guardian both carry a penalty of 10 penalty units (currently $1,100.00).

Part 4, Division 4 of the CG Act provides for the mandatory matters that must be considered for reportable allegations, such as:

  • the nature of the allegation, any defence and the gravity of the alleged matters;
  • whether the reportable conduct is in breach of professional standards, professional codes of conduct or ethical codes and accepted community standards.

Section 54 of the CG Act requires relevant entities to have codes of conduct, policies and processes in relation to reportable conduct.  Such codes, policies and procedures must address the following:

  • preventing reportable conduct by employees, and identifying matters relating to prevention;
  • making it a requirement for employees to report reportable conduct and enabling them to make the report;
  • handling of and responding to reports;
  • disclosure of information.

Unauthorised disclosure of information is an offence under section 57 of the Act, carrying a penalty of 10 penalty units (currently $1,100.00).

Relevant entities include public authorities and those entities prescribed under Schedule 1 of the CG Act (for example, local health districts, statutory health corporations, substitute residential care providers, non-government schools and designated agencies).

There are significant penalties under the Act for taking retribution against an employee for assisting the Children’s Guardian (200 penalty units (currently $22,000.00) or imprisonment for 5 years, or both), and for taking retribution against a person for making a report, complaint or notification under the Reportable Conduct Scheme (50 penalty units (currently $5,500.00)).

Significantly, a reporting body under the Child Protection (Working With Children) Act 2012 (NSW) now includes members of the Association of Independent Schools of NSW.

Additionally, the CG Act has included persons in religious ministry, persons providing religion-based activities to children and registered psychologists providing professional services as mandatory reporters under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the CP Act).

Out of Home Care

Restrictions on the amount of time that a child may remain in voluntary out-of-home care now come under the CG Act (formerly under the CP Act).  The time frames have not altered under the CG Act and a plan must still be in place for any child who remains in care in excess of 180 days in a 12-month period.  Only organisation’s authorised under the CG Act may provide or arrange for voluntary out-of-home care services.

The restrictions on principal officers of designated agencies residing on the same property as children who are in statutory out-of-home care or supported out-of-home care continue under the new CG Act.  Notably there is now a penalty for breaching this obligation of 200 penalty units (currently $22,000.00).

Subscribers should also be aware that the notification of child deaths in out-of-home care are now covered by the CG Act.  Notification of the parents/guardians, the Children’s Guardian and the coroner are still required.

Under section 87 of the CG Act, employing residential care providers are required, upon request, to provide a person with the details recorded against that person in the Carers Register.  Unauthorised accessing or amending the Carers Register carries a penalty of 100 penalty units (currently $11,000.00).

Child Employment

Obligations in relation to the employment of children which were under the CP Act, now come under the CG Act (notably the offence of endangering children in employment).

Employers are required to hold an employer’s authority when employing children taking part in entertainment, exhibitions, recorded performances and door to door sales.  The regulations under the CG Act (when enacted) may prescribe further activities for which employers will be required to hold an employer’s authority.  The penalty for not holding an employer’s authority or for breaching any conditions of an authority carries a penalty of 100 penalty units (currently $11,000.00).

Aboriginal and Torres Strait Islander children

Subscribers should note that under the CG Act, any record that is required to be kept under that Act for an Aboriginal or Torres Strait Islander child must be kept permanently.

Conclusion

Subscribers should update all policies in relation to children and the reportable conduct scheme under the new CG Act in accordance with the changes outlined above and covered in detail in the NSW Children’s Guardian, NSW – Out of Home Care, NSW – Working With Children, NSW – Minors and Children, NSW – Child Employment and NSW – Ombudsman topics.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au