AGY-2799 | Office of the Children's Guardian [I] (2000-2006) / Office for Children (2006-2009) / Office of the Children's Guardian [II] (2009- )

Full description

The Office of the Children's Guardian was established by the Children and Young Persons (Care and Protection) Act, 1998 (Act No. 157, 1998). The Guardian was appointed for a maximum term of five years and could not serve more than two consecutive terms of office. (1) The Governor could remove the Children's Guardian only on the grounds of misbehaviour, incapacity or incompetence. (2) In the absence of the Children's Guardian, the Governor could appoint an Acting Children's Guardian. (3)

The functions of the Children's Guardian were as follows:
(1) to promote the best interests of all children and young persons in out-of-home care, (ii) to ensure that the rights of all children and young persons in out-of-home care are safeguarded and promoted, (iii) to accredit designated agencies and to monitor their responsibilities under this Act and the regulations, (iv) to register organisations that provide or arrange voluntary out-of-home care and to monitor their responsibilities under this Act and the regulations. (4)

The delegation of responsibilities by the Children's Guardian was as follows: - functions may be directed to an authorised person, other than this power of delegation. - a delegate may sub-delegate to an authorised person any function delegated by the Children's Guardian if the delegate is authorised in writing to do so by the Children's Guardian. Authorised person meant: (a) a designated agency, or (b) an officer within a designated agency, or (c) an authorised carer, or (d) a person of a class approved by the Children's Guardian or prescribed by the regulations. (5)

The first Children's Guardian was appointed on 17 November, 2000. (6)

In November 2003 the Children's Employment Unit was transferred from the Department of Community Services and became a branch of the Office of the Children's Guardian. (7)

On 3 April 2006 the NSW Government merged the Commission for Children and Young People and the Office of the Children's Guardian and created the Office for Children. The Office for Children was in the portfolio of the Minister for Community Services and the Minister for Youth. Under the new arrangements the roles of the Children's Guardian and the Commission for Children and Young People continued, but with internal changes to the ways that the Children's Guardian and the Commissioner's staff share resources. (8) From 1 July 2009 the Office for Children was abolished and its functions were transferred to the new Principal Department, Communities NSW under the Office of the Children's Guardian. (9)

Legislative amendments were made to enhance protections for children and young people during 2017-18. These amendments commenced on 1 June 2018 following the five year statutory review of the Child Protection (Working With Children) Act 2012 and incorporated the findings of the Royal Commission into Institutional Responses to Child Sexual Abuse. The amendments included:
(i) Strengthening employer verification requirements: verification was critical to keeping children safe as it allowed employers to know if a worker is barred from child-related employment. The amendments created an offence for failure to verify online and enable authorised officers of the OCG to issue penalty infringement notices on employers who persistently fail to comply.
(ii) Parents who volunteer at overnight camps for children were required to have a Working With Children Check (WWCC): Parents volunteering with their own child’s team or group, are not usually required to have a Working With Children Check, however, submissions to the statutory review overwhelmingly supported the requirement for parent volunteers to have a WWCC if they are volunteering on an overnight children's camp.
(iv) Discretion to the Children's Guardian to permit a child who turns 18 but does not hold a WWCC to continue to reside with an authorised carer: children in statutory out-of-home care who turn 18 and continue to reside with their authorised carer are obliged to get a Working With Children Check. In some circumstances a clearance cannot be granted. This could mean them having to leave a stable placement where they have been living supported by carers and siblings, and could have a negative impact not only for the young person, but also the siblings. To respond to this situation, subject to satisfying legislative criteria, the Children's Guardian may now grant a continuing residence approval. As long as identified and demonstrated risk mitigation strategies are in place to protect the safety of the other children in the home, the applicant may continue to live with the carer for the duration of the approval.
(v) A number of other general amendments were also made to enhance information gathering processes, improve transparency in decision making and to clarify definitions. (10)

In October 2018 the NSW Government announced its decision to transfer functions for the Reportable Conduct Scheme from the Ombudsman’s Office to the OCG. By overseeing the Working With Children Check, Reportable Conduct Scheme and child safe standards, the Office of the Children’s Guardian delivered comprehensive and streamlined oversight of child safety in organisations and provide greater transparency on the safety of children and young people to the community. The transfer of functions from the Ombudsman to the Children’s Guardian removed duplication in reporting, delivered a cohesive approach to auditing, researching, reviewing and capacity building of organisations that are subject to the Reportable Conduct Scheme. (11)

The Children’s Guardian Act 2019 (Act No.25, 2019) commenced on 1 March 2020 followed by a review of how the Act operated in practice. In September 2020, amendments were made to the Act, most notably in relation to third party employers, such as subcontractors, and their reportable conduct obligations. (12)

The guiding principles of this new this Act and its regulations were:
(a) if a child is able to form views on a matter concerning the child's safety, welfare and wellbeing:
(i) the child must be given an opportunity to express the views freely, and,
(ii) the views are to be given due weight in accordance with the developmental capacity of the child and the circumstances, and,
(b) in all actions taken and decisions made under this Act and the regulations that significantly affect a child, account must be taken of the culture, disability, language, religion, gender identity and sexuality of:
(i) the child, and,
(ii) if relevant, the person with parental responsibility for the child, and,
(c) in deciding what action is necessary to protect a child from harm, the course to be followed must be the least intrusive intervention in the life of the child and the child’s family that is also consistent with the paramount consideration, and,
(d) in decision-making under this Act and the regulations and the investigation or monitoring of persons, the Children’s Guardian must observe the principles of natural justice and ensure procedural fairness, and,
(e) in decision-making under this Act and the regulations in relation to an Aboriginal child or a Torres Strait Islander child:
(i) the Aboriginal and Torres Strait Islander Child and Young Person Placement Principles set out in the Children and Young Persons (Care and Protection) Act 1998, section 13, and,
(ii) the embedding of connection to family and community with the ultimate goal of the child feeling safe and secure in their identity, culture and community, and,
(e1) in decision-making under this Act, respect for cultural and social difference must be considered in the provision of child-related services, and,
(f) if a child is placed in out-of-home care, the child is entitled to a safe, nurturing, stable and secure environment. (13)

The objects of the Act were for the Children's Guardian to protect children from harm by:
(i) adopting the Child Safe Standards as the primary framework that guides child safe practice, and
(ii) implementing regulatory approaches that:
a. improve systems for the prevention, identification, response to and reporting of child abuse in child safe organisations through the implementation of the Child Safe Standards, and
b. assist child safe organisations to implement the Child Safe Standards by raising awareness and providing guidance, training and education, and
c. monitor and report on the compliance of child safe organisations with the Child Safe Standards, and
d. enforce compliance with the Child Safe Standards, and
e. provide for the investigation of complaints about a child safe organisation’s:
i. implementation of the Child Safe Standards, or
ii. compliance with the Child Safe Standards, or
iii. compliance with recommendations contained in a monitoring assessment report, and
(iii) establish child safe action plans with prescribed agencies, and
(iv) provide for the ongoing exchange of information about risks to child safety in organisations between government agencies, both in New South Wales and in other States and Territories, with child safety responsibilities. (14)

Endnotes
1. Children and Young Persons (Care and Protection) Act, 1998, s.178 (3).
2. Ibid. s.178 (4).
3. Ibid. s.179.
4. Ibid. s.181.
5. Ibid. s.186.
6. NSW Government Gazette No.148, 17 November 2000, p.11763.
7. Public Sector Employment and Management (Children's Employment Unit) Order 2003 (NSW).
8. The Office of the Children's Guardian, Changes to OCG, www.kidsguardian.nsw.gov.au, p.1.
9. Public Sector Employment and Management (Departmental Amalgamations) Order 2009 (2009 No.352) cls. 6; NSW Legislation Website, 27 July 2009.
10. Office of the Children's Guardian Annual Report 2017-2018, p.14.
11. Office of the Children's Guardian Annual Report 2018-2019, p.13.
12. Office of the Children's Guardian Annual Report 2021, p.13.
13. Children’s Guardian Act 2019 (Act No.25, 2019), s.8.
14. Children’s Guardian Act 2019 (Act No.25, 2019), s.8A.