Fundamental Legislative Principles: The OQPC Notebook This publication provides information about the operation of fundamental legislative

principles in the context of Queensland legislation. Policy officers involved in the drafting of legislation can request an electronic copy of the latest version of the notebook by emailing <parliamentarycounsel@oqpc.qld.gov.au>.

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Queensland

Child Safety Youth Bill 2013

Contents
Page Part 1 1 2 3 4 Part 2 5 Part 3 6 Part 4 7 Part 5 8 Part 6 9 10 Preliminary Short title . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Commencement . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Main purpose of Youth Act . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Definitions. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Administration Administration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Accountability and Obligations Duties of Care . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Investigations Criminal Investigations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Creation of Clinics Creation of Rehabilitation Clinics . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of Criminal Code Act 1888 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 24 (Mistake of fact) . . . . . . . . . . . . . . . . . . . . . . 20 11 Part 7 12 13 14 8 8 8 9 10 10 10 10 11 12 13 8 7 6 5 4 4 4 4

Mistake of fact . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Amendment of s 210 (Indecent treatment of children under 16) . Amendment of Child Protection Act 1999 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 59 (Making of child protection order). . . . . . . . . 59 62A 62B Making of child protection order . . . . . . . . . . . . . . . . . Permanency placements . . . . . . . . . . . . . . . . . . . . . . Permanency placement agreements . . . . . . . . . . . . . Amendment of s 62 (Duration of child protection orders) . . . . . . .

Part 8 15

Amendment of Adoption Act 2009 Act amended . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

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Child Safety Youth Bill 2013 Contents 16 17 17 19 20 21 Part 9 Division 1 22 23 24 25 Division 2 26 27 Amendment of s 68 (Who may make an expression of interest) . 68 76 116 Who can make an expression of interest . . . . . . . . . . Eligibility of inclusion in register . . . . . . . . . . . . . . . . . Police information . . . . . . . . . . . . . . . . . . . . . . . . . . . . Amendment of s 76 (Eligibility of inclusion in register) . . . . . . . . . Amendment of s 116 (Police information) . . . . . . . . . . . . . . . . . . Amendment of s 118 (consultation with appropriate . . . . . . . . . . Aboriginal and Torres Strait Islander people) . . . . . . . . . . . . . . . . Amendment of s 119 (Other information gathering) . . . . . . . . . . . 119 Other Information Gathering. . . . . . . . . . . . . . . . . . . . Amendment of s 121 (Unacceptable risk of harm) . . . . . . . . . . . . Penalties and Punishments Penalty Administration Offences Relating To Children . . . . . . . . . . . . . . . . . . . . . . . . . . . ................................................... Levels of Offences . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Exclusion of Reasonable Discipline . . . . . . . . . . . . . . . . . . . . . . . Types of Penalties Categorization of Types of Penalties . . . . . . . . . . . . . . . . . . . . . . Automatic High Level Offences . . . . . . . . . . . . . . . . . . . . . . . . . . 16 17 15 15 15 16 13 13 13 13 14 14 14 14 14 15

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2013 A Bill
for
A Youth Bill for a Youth Act to improve child safety in the state of Queensland and address the current defects in the criminal law

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Child Safety Youth Bill 2013 Part 1 Preliminary [s 1]

The Parliament of Queensland enacts

Part 1
1 Short title

Preliminary

This Act may be cited as the Child Safety Youth Act 2013.
2 Commencement

This Act commences on a day to be fixed by proclamation.

3 Main purpose of Youth Act

The main purpose of this Youth Act is to improve child safety in the state of Queensland and impose harsher penalties on those who abuse children.
4 Definitions

In this Youth Act Best Interests Of The Child means both the physical and mental wellbeing of the child in relation to their domestic lifestyle. Blue Card means a card that screens applicants to assess their eligibility to work with, and protect, minors based on past behaviour. Child means a person under the age of 18 years. Child in need of protection has a meaning given by the Child Protection Act (Qld), section 10. Gross Parental Incompetence means as actions by a parent/s where by the wellbeing of the child has been severely altered through there incompetence. This includes actions of sexual
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Child Safety Youth Bill 2013 Part 2 Administration [s 5]

abuse, physical abuse, and failure to provide the necessities of life. Harm has meaning given by the Child Protection Act (Qld), section 9. Immediate Revocation of Guardianship has meaning given in section 18(2) of this Act. Judicial Discretion means the power of the judiciary to make some legal decisions according to their discretion. Recognisable Failure of Parental Responsibility means consistent minor failures of the parent to maintain the health and wellbeing of a child and failure to control the actions of the child of which would be considered unreasonable. Suitability Assessments has meaning given in section 17(2) of this Act. Suitability Reassessments has meaning given in section 19(2) of this Act. Transport Operators means anyone in the operation or management of a vehicle that transports children.

Part 2
5

Administration

Administration

(1) (2)

Any reference to a child in any Queensland legislation automatically includes any person under the age of 18 years. This Act does not affect the physical or mental elements associated with the offences under the Criminal Code (Qld) unless otherwise stated.

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Child Safety Youth Bill 2013 Part 3 Accountability and Obligations [s 6]

Part 3
6 Duties of Care

Accountability and Obligations

(1) Those who are in possession, ought to possess, or are in the process of possessing a Blue Card, or are in close proximity with minors have an enhanced duty of care to protect minors from any form of abuse. (2) For the purposes of this Act, duties of care include but are not limited to (a) Parents; (b) Guardians; (c) School Staff; (d) School volunteers; (e) Transport Operators; (f) Foster parents; (g) Staff at co-curricular organizations involving children; (h) Volunteers at co-curricular organizations involving children; (f) Employers; and (g) Any other individual that works in proximity with children. (3) If an established duty of care as mentioned in clause (6) is breached the penalty imposed automatically moves up a bracket in section 27 of this Act.

(4) All schools and institutions are required to have a fully qualified individual who is able to assess if a child is being abused. (a) The individual may be an existing staff member or; (b) A third party.

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Child Safety Youth Bill 2013 Part 4 Investigations [s 7]

(5) Parties with an established duty of care have a legal obligation to report abuse to the qualified individual, with failure constituting a criminal offence Maximum penalty - 10 penalty units (a) No penalties will be imposed if on the balance of probabilities it can be shown the parties with the established duty of care were completely, honestly and reasonably unaware of the abuse.

Part 4
7

Investigations

Criminal Investigations

(1) Whilst a case is being investigated to determine if the child is able to return to the offender's care, mandatory criminal investigations of that offender must also be conducted. (2) (3) A child may not be returned to the offender's care until these criminal investigations have been finalized. A child may not be returned to the offender's care if the offender is found guilty of an offence for a minimum of 3 years after the offender has served his or her penalty. Any guilty offence relating to the welfare of a child will be automatically added to the offender's criminal record as a conviction, and shall appear on the face of the record, without judicial discretion.

(4)

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Child Safety Youth Bill 2013 Part 5 Creation of Clinics [s 8]

Part 5
8

Creation of Clinics

Creation of Rehabilitation Clinics

(1)

The Act creates rehabilitation clinics in all major cities and towns to assist those who feel have a tendency for child abuse acts. For the purposes of this section only Major Cities and Towns includes all Australian capital cities and the fifteen most populous cities and towns in Queensland. The lack of effectiveness of these clinics will not be a defence of an offence against a child.

(2)

(3)

Part 6

Amendment of Criminal Code Act 1888

Act amended

This part amends the Criminal Code Act 1899 (Qld).

10 Amendment of s 24 (Mistake of fact)

Section 24, Clause 2 omit, insert 20 Mistake of fact (2) Without limiting subsection (1), a person's consent to an act is not freely and voluntarily given if the person (a) does not say or do anything to communicate consent; or (b) is asleep, unconscious or otherwise under intoxication by alcohol or another drug as to be unable to form a rational opinion in
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Child Safety Youth Bill 2013 Part 6 Amendment of Criminal Code Act 1888 [s 11]

respect of the matter for which consent is required; or (c) is unable to understand the nature of the act. (3) If a person, against whom a crime is alleged to have been committed under chapters 26 or 30, suffers grievous bodily harm as a result of, or in connection with, such a crime, the grievous bodily harm suffered is evidence of the lack of consent of the said victim. In proceedings for an offence against section 349 and 350, a mistaken belief by the accused as to the existence of consent is not honest or reasonable if the accused (a) was in a state of self-induced intoxication and the mistake was not one which the accused would have made if not intoxicated; or (b) was reckless as to whether or not the complainant consented; or (c) did not take reasonable steps, in the circumstances known to him or her at the time of the offence, to ascertain that the complainant was consenting to the act; or (d) if the victim was in a state of intoxication. (5) the operation of this rule is excluded in proceedings for an offence against section 349 and section 350 if the offended are under the age of sixteen (16).

(4)

11

Amendment of s 210 (Indecent treatment of children under 16)

Section 210, Clause 5 omit.

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Child Safety Youth Bill 2013 Part 7 Amendment of Child Protection Act 1999 [s 12]

Part 7

Amendment of Child Protection Act 1999

12

Act amended

This part amends the Child Protection Act 1999 (Qld).

13 Amendment of s 59 (Making of child protection order)

Section 59, Clause 1 insert 59 Making of child protection order (1) The Children's Court may make a child protection order only if satisfied (f) that the reason for the protection of the child is due to Gross Parental Incompetence; or (g) that the reason for the protection of the child is due to a Recognizable Failure of Parental Responsibility where (i) the family has undergone mediation for a period of 30 days; and (ii) the relevant department is not satisfied that reconciliation with the child and family group has been achieved. (2) If the department is satisfied with the outcome of mediation, a child protection order cannot be issued.

14

Amendment of s 62 (Duration of child protection orders)

Section 62, Clause 4 insert new section

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Child Safety Youth Bill 2013 Part 7 Amendment of Child Protection Act 1999 [s 14]

62A Permanency placements (1) A Child Protection Order which has been in effect for more than 48 months, shall be required to have a mandatory review by the Children's Court if it relates to (a) Short-Term Guardianships; or (b) Long-Term Guardianship; or (c) Other orders granting custody. (2) This mandatory review by the Children's Court would determine if it would be in the best interests for the child's if (a) the current Child Protection Order is remains as is; or (b) they permanently remain in the care of the Chief Executive till the expiry of the Child Protection Order; or (c) they be adopted into the family of their current placement where; (i)this placement must have elapsed for at least 30 months; (ii) the child is in agreement to be integrated into this family. (3) The court must consider the following in the making of any decision in regards to 62A(2). (a) Reconciliation of the child with their parent/s and/or guardians; (b) Behaviours and actions of the Parent during the duration of the Child Protection Order; (c) The initial reason for the child protection order being issued; (d) The child's current wellbeing in care; and (e) The age of the child.
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Child Safety Youth Bill 2013 Part 7 Amendment of Child Protection Act 1999 [s 14]

(4)

If the court finds in favour of enacting s62A (2)(b) and 62A (2)(c), the previous case plan as set out in Clause 3A would become void and a new Permanency Placement Agreement would be formed. A Permanency Placement Agreement (PPA) is an agreement between the chief executive and the carer for meeting the child's protection and care needs. The PPA may include (a) Arrangements about where or with whom the child will live, including interim arrangements; (b) Arrangements for contact with the child's family group with whom the child is connected; (c) Arrangements for maintaining the child's ethnic and cultural identity; (d) Matters for which the chief executive will be responsible, including particular support or services; and (e) Other relevant arrangements in the interests of protecting and caring for the child.

62B Permanency placement agreements (1)

(2)

(3)

The PPA must be formed in conjunction with (a) The Chief Executive and/or representative; (b) The Carer/Adopting Family; (c) The Child, unless it would be inappropriate because of the child's age or ability to understand.

(4)

The PPA may also be formed in conjunction with members of the child's family group.

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Child Safety Youth Bill 2013 Part 8 Amendment of Adoption Act 2009 [s 15]

(5)

The PPA must be agreed to by the carer before the commencement of the agreement.

Part 8

Amendment of Adoption Act 2009

15

Act amended

This part amends the Adoption Act 2009.

16 Amendment of s 68 (Who may make an expression of interest)

Section 68, Clause 2 omit, insert 68 Who can make an expression of interest (2) Single person/s may adopt a child if it is established that they are suitable to take care of a child.
17 Amendment of s 76 (Eligibility of inclusion in register)

Section 76, Clause 1 76 Eligibility of inclusion in register omit (e) the person is not undergoing fertility treatment and has not undergone fertility treatment within the previous 6 months; and omit, insert (g) if the person has a spouse they must also be eligible under paragraphs (a)(f);

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Child Safety Youth Bill 2013 Part 8 Amendment of Adoption Act 2009 [s 17]

17

Amendment of s 116 (Police information)

Section 116, Clause 1 omit, insert 116 Police information (1) The chief executive must ask the police commissioner for information, or for access to the police commissioner's records, to enable the chief executive to learn what police information exists, if any, in relation to the person or an adult.
19 Amendment of s 118 (consultation with appropriate Aboriginal and Torres Strait Islander people)

Section 118, Clause 2(b) omit.

20 Amendment of s 119 (Other information gathering)

Section 119 omit, insert 119 Other Information Gathering The chief executive must make enquiries and gather information in other ways the chief executive considers appropriate, including any of the following(a) talking with the person; (b) asking the person to attend and participate in a workshop or similar educational activity conducted by the department; (c) visiting the person's home; (d) talking with members of the person's family or household; (e) talking with referees nominated by the person;

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Child Safety Youth Bill 2013 Part 9 Penalties and Punishments [s 21]

(f) talking with anyone else with information relevant to the person's suitability; (g) obtaining expert advice about relevant health, psychological or social matters; (h) asking the person to prepare documents, for example, a profile of the person's family; (i) lawfully obtaining information from the department or other departments.
21 Amendment of s 121 (Unacceptable risk of harm)

Section 121, Clause 4. omit.

Part 9
Division 1
22

Penalties and Punishments

Penalty Administration

Offences Relating To Children

Any penalty relating to children in existing legislation is removed and instead contained in Section 26.
23

If the offence is a re-offence the penalty will be moved up a bracket in Section 26. (a) This excludes moving between Type 5 and 6.
24 Levels of Offences

(1)

Each offence against a child is to be categorized into Four Levels of Seriousness subject to the judicial discretion
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Child Safety Youth Bill 2013 Part 9 Penalties and Punishments [s 25]

(a) Low Level Offences; (b) Medium Level Offences; (c) High Level Offences; and (d) Fatal Offences. (2) Fatal offences automatically and without judicial discretion includes ALL offences relating to the death of the child

25

Exclusion of Reasonable Discipline

(1) (2)

This chapter excludes reasonable discipline of a child by a parent or guardian. Reasonableness will be determined by judicial discretion.

Division 2
26

Types of Penalties

Categorization of Types of Penalties

All levels of offences are categorized into this section and corresponds with the relevant penalties (a) Type 1low-level physical, emotional, and neglect assault for children over 12. Maximum penalty5 years. (b) Type 2low-level assault for children under 12 and Medium level assault for children over 12. Minimum penalty5 years. (c) Type 3Medium level assault for children under 12 Minimum penalty10 years. (d) Type 4High-level assault for children over 12 Minimum penalty20 years. (e) Type 5High level assault for children under 12 Minimum penalty30 years.
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Child Safety Youth Bill 2013 Part 9 Penalties and Punishments [s 27]

(f)

Type 6All fatal manslaughter.

expenses

with

exception

to

Minimum penalty20 years.

27 Automatic High Level Offences

(1)

Any of the following offences committed is automatically considered as a High Level Offence (a) (b) (c) (d) (e) (f) (g) Unlawful sodomy (s208 QCC); Carnal knowledge (s215 QCC); Procuring a young person etc for carnal knowledge (s217 QCC); Procuring sexual acts by coercion (s218 QCC); Obscene publications and exhibitions (s228A-H QCC); Maintaining a sexual relationship with a child (s229B QCC); and Any sexual offence under Chapter 32 of the QCC.

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