Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Act 2016

1: Title
This Act is the Children, Young Persons, and Their Families (Advocacy, Workforce, and Age Settings) Amendment Act 2016.
2: Commencement
This Act comes into force on 1 April 2017
3: Principal Act
This Act amends the Children, Young Persons, and Their Families Act 1989 principal Act 2017-04-01 Children, Young Persons, and Their Families Act 1989
4: Section 2 amended (Interpretation)
1: In section 2(1) young person young person
a: in Parts 2 to 3A, means a person of or over the age of 14 years but under the age of 18 years:
b: in Parts 4 and 5, means a person of or over the age of 14 years but under the age of 17 years:
c: in every other provision in this Act, means a person to whom the provision applies because he or she is or was a young person within the meaning of either paragraph (a) or (b)
d: in any provision in any other enactment that defines the term young person by reference to this section or the meaning in this Act,—
i: has the meaning given in paragraph (b)
A: a criminal investigation, the commission of an offence, or criminal proceedings; or
B: any process associated with a criminal investigation, the commission of an offence, or criminal proceedings; or
C: Parts 4 and 5 of this Act; or
ii: in any other case, has the meaning given in paragraph (a)
e: does not include a person who is or has been married or in a civil union
2: After section 2(1)
1A: In this Act, any reference to the chief executive includes a person who is a delegate of the chief executive or a subdelegate of that delegate irrespective of whether the provision in which the chief executive is referred to contains a reference to a delegate of the chief executive.
5: Section 2A replaced (Transitional and savings provisions relating to amendments to this Act)
Replace section 2A
2A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA have effect according to their terms.
6: Section 7 amended (Duties of chief executive)
1: In section 7(2) shall must
2: After section 7(2)﻿(ba)
bb: ensure that services are available to children and young persons who are subject to any action or receiving any service under Parts 2 to 7 (with particular consideration to be given to the needs of those in care) that provide them with an opportunity and support to express their views about—
i: matters that are important to them in relation to that action or service; and
ii: the operation and effectiveness of processes and services under this Act, for the purpose of contributing to the improvement of these:
3: After section 7(2)﻿(c)﻿(ii)
iia: have regard to the views of children and young persons, including the views received by the services referred to in subsection (2)﻿(bb)
4: After section 7(2)
3: The services referred to in subsection (2)﻿(bb)
4: In this section, in care
a: placed or detained in the custody or care of the chief executive, a person, a body, or an organisation under this Act; or
b: remanded in the custody of the chief executive under section 173 or 174 of the Criminal Procedure Act 2011; or
c: detained in a residence under section 34A of the Corrections Act 2004.
7: New sections 7A to 7G inserted
After section 7
7A: Delegations made under section 41 of State Sector Act 1988 to social workers
1: A delegation made under section 41 of the State Sector Act 1988 by the chief executive of any of the functions or powers in the Act to a social worker is subject to this section.
2: Despite section 41(2) of that Act, a social worker may not subdelegate any functions or powers delegated to him or her.
3: Section 7F
7B: Delegations made under section 41 of State Sector Act 1988 to persons who are not social workers
A delegation made under section 41 of the State Sector Act 1988 by the chief executive of any of the functions or powers in the Act to a person who is not a social worker is subject to section 7D sections 7F and 7G
7C: Delegation of functions and powers conferred by court order or warrant
1: The chief executive may delegate his or her functions and powers under all or any of sections 39, 40, 122, 157, 181, 205, or 386 to a social worker or to any other person, even though those functions and powers are conferred by a court order or a warrant that is made or issued after the delegation is made.
2: The following apply to a delegation referred to in this section:
a: section 41 of the State Sector Act 1988, as if the delegation were made under that section; and
b: if the delegation is to a social worker, sections 7A and 7F
c: if the delegation is to a person who is not a social worker, sections 7B, 7D, 7F, and 7G
7D: Requirements for delegation to persons who are not social workers
1: This section applies to a delegation referred to in section 7B or 7C
2: Before making a delegation to a person who is not a social worker, the chief executive must be satisfied that, in addition to any relevant requirements of section 41 of the State Sector Act 1988 being met,—
a: the person is appropriately qualified to perform the function or exercise the power, taking into account the person’s training, experience, and interpersonal skills; and
b: if the person is outside the State services, the person will be bound by contractual obligations that are sufficient to support the appropriate exercise of the delegation.
3: The chief executive may make a delegation to a person who does not meet the requirement in subsection (2)﻿(a)
a: who works under the management or supervision of the delegate; and
b: who is a social worker or meets the requirement in subsection (2)﻿(a)
7E: Subdelegation of functions and powers by delegates who are not social workers
1: This section applies if a delegation referred to in section 7B or 7C
a: for the sole purpose of subdelegation ( see section 7D(3)
b: to whom the chief executive otherwise gives approval to subdelegate.
2: A subdelegation by the delegate of a function or power under section 41(2) of the State Sector Act 1988 is subject to subsection (3)
3: Before subdelegating any function or power to a person, the delegate must be satisfied that the person is a social worker or meets the requirement in section 7D(2)﻿(a)
7F: Delegations and subdelegations to be publicly notified
1: The delegations referred to in sections 7A to 7C section 7E
2: The information required to be made available must include, in each case,—
a: a description of the delegate or subdelegate, although the description need not identify any particular individual to whom the delegation or subdelegation is made but may instead give other identifying particulars, for example, the name of the specified office to which the delegation or subdelegation is made; and
b: a description of the function or power that has been delegated or subdelegated; and
c: a reference to the provision in this Act that provides for the function or power that has been delegated or subdelegated.
3: A failure to notify a delegation or a subdelegation does not affect its validity.
7G: Immunity for delegates outside Public Service
Section 86 of the State Sector Act 1988 applies to a person outside the Public Service acting under a delegation referred to in section 7B or 7C
8: Section 11 replaced (Duty of court and counsel to encourage and assist child or young person to participate in proceedings)
Replace section 11
11: Child’s or young person’s participation and views
1: This section applies to the following proceedings and processes:
a: proceedings under this Act in a District Court, Family Court, or Youth Court (all being first instance courts) and proceedings in the High Court, Court of Appeal, or Supreme Court on an appeal (other than on a point of law only) against a decision, finding, or order under this Act of a first instance court:
b: the process for convening, and the proceedings of, a family group conference convened under this Act:
c: the preparation or review of a plan for a child or young person (a planning process
d: the taking of any other action or making of any other decision (any other process
2: In proceedings or a process to which this section applies,—
a: the child or young person must be encouraged and assisted to participate in the proceedings or process to the degree appropriate for his or her age and level of maturity unless, in the view of a person specified in subsection (3)
b: the child or young person must be given reasonable opportunities to freely express his or her views on matters affecting him or her; and
c: if a child or young person has difficulties in expressing his or her views or being understood (for example, because of his or her age or language, or because of a disability), support must be provided to assist him or her to express his or her views and to be understood; and
d: any views that the child or young person expresses (either directly or through a representative) must be taken into account.
3: The following persons must either perform the duties imposed by subsection (2)﻿(a) to (c)
a: for proceedings before a court, the Judge or other person presiding and the barrister or solicitor representing the child or young person:
b: for the process for convening, and the proceedings of, a family group conference, the person responsible for convening the conference:
c: for a planning process, the person directed by the court to prepare or review the plan:
d: for any other process, the person responsible for taking the action or making the decision.
4: Despite anything to the contrary in this Act and subject to subsection (5) subsection (2)﻿(c) subsection (1)
5: If the person responsible for a proceeding or process referred to in subsection (1)
6: This section is not limited by section 5(d) (which sets out a principle relating to ascertaining, considering, and giving weight to the wishes of the child or young person).
7: In this section, support
9: Schedule 1AA amended
1: Replace the Schedule 1AA
1AA: s 2A Transitional, savings, and related provisions
2: In Schedule 1AA, replace clauses 1 2 Parts 1 and 2 Schedule 1
10: Consequential amendments to principal Act
Amend the principal Act as set out in Schedule 2
11: Consequential amendments to other Acts
Amend the Acts specified in Schedule 3 2017-04-01 Crown Proceedings Act 1950 Search and Surveillance Act 2012 Vulnerable Children Act 2014