Part 223 Child or young person at risk of significant harm
(1) For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances:(a) the child’s or young person’s basic physical or psychological needs are not being met or are at risk of not being met,(b) the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care,(b1) in the case of a child or young person who is required to attend school in accordance with the Education Act 1990—the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive an education in accordance with that Act,(c) the child or young person has been, or is at risk of being, physically or sexually abused or ill-treated,(d) the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm,(e) a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm,(f) the child was the subject of a pre-natal report under section 25 and the birth mother of the child did not engage successfully with support services to eliminate, or minimise to the lowest level reasonably practical, the risk factors that gave rise to the report.Note. Physical or sexual abuse may include an assault and can exist despite the fact that consent has been given.(2) Any such circumstances may relate to a single act or omission or to a series of acts or omissions.Note. See also sections 154 (2) (a) and 156A (3) for other circumstances in which a child or young person is taken to be at risk of significant harm.
24 Report concerning child or young person at risk of significant harm
A person who has reasonable grounds to suspect that a child or young person is, or that a class of children or young persons are, at risk of significant harm may make a report to the Director-General.
A person who has reasonable grounds to suspect, before the birth of a child, that the child may be at risk of significant harm after his or her birth may make a report to the Director-General.Note. The intentions of this section are:(a) to allow assistance and support to be provided to the expectant mother to reduce the likelihood that her child, when born, will need to be placed in out-of-home care, and(b) to provide early information that a child who is not yet born may be at risk of significant harm subsequent to his or her birth, and(c) in conjunction with section 23 (f) and section 27, to provide for mandatory reporting if there are reasonable grounds to believe that the child is at risk of significant harm subsequent to his or her birth.
A report under section 24 or 25 may be made anonymously.
(1) This section applies to:(a) a person who, in the course of his or her professional work or other paid employment delivers health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly, to children, and(b) a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children’s services, residential services, or law enforcement, wholly or partly, to children.(2) If:(a) a person to whom this section applies has reasonable grounds to suspect that a child is at risk of significant harm, and(b) those grounds arise during the course of or from the person’s work,it is the duty of the person to report, as soon as practicable, to the Director-General the name, or a description, of the child and the grounds for suspecting that the child is at risk of significant harm.(3) A person to whom this section applies satisfies his or her obligations under subsection (2) in relation to two or more children that constitute a particular class of children if the person reports that class of children to the Director-General together with:(a) a description that is sufficient to identify all the children who constitute the class, and(b) the grounds for suspecting that the children of that class are at risk of significant harm.
27A Alternative reporting arrangements
(1) In this section:assessment officer, in relation to a relevant agency, means a person appointed or designated by the head of the agency as an assessment officer of the agency for the purposes of an arrangement under this section.
head of a relevant agency means:
(a) (subject to paragraph (b)) the person who is the chief executive officer, or who exercises the functions of chief executive officer, of the agency, or(b) the person prescribed by the regulations.relevant agency means any of the following:
(a) the NSW Health Service (including the Health Executive Service referred to in section 121B of the Health Services Act 1997),(b) the NSW Police Force,(c) the Teaching Service,(d) the Department of Health,(e) the Department of Education and Training,(f) the TAFE Commission,(g) the Department of Human Services,(h) any other agency or organisation prescribed by the regulations for the purposes of this section.(2) The Director-General and the head of a relevant agency may enter into an arrangement under which a person (the staff member) who:(a) is employed in or engaged by the relevant agency, and(b) is a person to whom section 27 applies,may, in accordance with the terms of the arrangement, refer to an assessment officer of the agency any matter that the staff member would otherwise be required to report to the Director-General under that section.(3) If the staff member refers such a matter to an assessment officer under any such arrangement, the assessment officer is, in accordance with the assessment guidelines issued by the Director-General for the purposes of this section, to assess whether the matter should be reported to the Director-General under section 27.(4) If, in accordance with the assessment guidelines, the matter is assessed as a matter that should be reported to the Director-General under section 27, the assessment officer or the staff member is, as soon as practicable after the assessment, to report the matter to the Director-General under that section. Any such requirement applies in relation to the assessment officer as though the officer was a person to whom section 27 applies.(5) If, in accordance with the assessment guidelines, the matter is assessed as a matter that should not be reported to the Director-General under section 27, the assessment officer or the staff member may, if the officer or staff member has concerns for the well-being of the child to whom the matter relates, make such referral or take such action as the officer or staff member considers necessary or appropriate (or as is reasonably available) to safeguard or promote the safety, welfare and well-being of the child.(6) If a matter is referred to an assessment officer in accordance with an arrangement under this section, the staff member making the referral is taken to have satisfied his or her obligations under section 27 in relation to the matter concerned.(7) Section 29 applies in relation to a referral that is made to an assessment officer under this section in the same way as it applies to a report within the meaning of section 29. For that purpose, a reference in section 29 to the making of a report includes a reference to the referral of a matter to an assessment officer in accordance with an arrangement under this section.(8) A certificate purporting to be signed by an assessment officer that a document relating to a child is a referral that has been made to the assessment officer under this section is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a referral.(9) The following provisions apply in relation to the appointment or designation of assessment officers for the purposes of this section:(a) more than one person may be appointed or designated as an assessment officer in relation to a relevant agency,(b) any such appointment or designation may (without limitation) be made by reference to the holder of a specified position or to a specified class of persons,(c) a person may be appointed or designated as an assessment officer in relation to a relevant agency even though the person is employed in or engaged by another agency.(10) The regulations may extend the operation of this section, with such exclusions and modifications as may be prescribed by the regulations, to any person (or a class of persons) who is a person (or class of persons) to whom section 27 applies but who is or are not employed in or engaged by a relevant agency.(11) For avoidance of doubt, the head of the NSW Health Service or the Health Executive Service is, for the purposes of this section, the Director-General of the Department of Health.(12) A staff member of a relevant agency may, in accordance with the terms of an arrangement under this section, refer any of the following matters to an assessment officer of the agency:(a) a matter relating to a young person that the staff member would otherwise report to the Director-General under section 24,(b) a matter relating to an unborn child that the staff member would otherwise report to the Director-General under section 25.
28 Record of reports and subsequent action
The Director-General must keep a record of:(a) any report made to the Director-General, and(b) any action taken as a direct consequence of the report that has a significant effect on the child or young person to whom the report relates.
29 Protection of persons who make reports or provide certain information
(1) If, in relation to a child or young person or a class of children or young persons, a person makes a report in good faith to the Director-General or to a person who has the power or responsibility to protect the child or young person or the class of children or young persons:(a) the making of the report does not constitute a breach of professional etiquette or ethics or a departure from accepted standards of professional conduct, and(b) no liability for defamation is incurred because of the report, and(c) the making of the report does not constitute a ground for civil proceedings for malicious prosecution or for conspiracy, and(d) the report, or evidence of its contents, is not admissible in any proceedings other than the following proceedings (and appeals arising from the following proceedings):(i) care proceedings in the Children’s Court,(ii) proceedings in relation to a child or young person under the Family Law Act 1975 of the Commonwealth,(iii) proceedings in relation to a child or young person before the Supreme Court or the Administrative Decisions Tribunal,(iv) proceedings before the Victims Compensation Tribunal or the Guardianship Tribunal,(v) proceedings under the Coroners Act 2009, and(e) a person cannot be compelled in any proceedings to produce the report or a copy of or extract from it or to disclose or give evidence of any of its contents, and(f) the identity of the person who made the report, or information from which the identity of that person could be deduced, must not be disclosed by any person or body, except with:(i) the consent of the person who made the report, or(ii) the leave of a court or other body before which proceedings relating to the report are conducted,and, unless that consent or leave is granted, a party or witness in any such proceedings must not be asked, and, if asked, cannot be required to answer, any question that cannot be answered without disclosing the identity or leading to the identification of that person.(1A) A certificate purporting to be signed by the Director-General that a document relating to a child or young person or a class of children or young persons is a report to which this section applies is admissible in any proceedings and, in the absence of evidence to the contrary, is proof that the document is such a report.(2) A court or other body cannot grant leave under subsection (1) (f) (ii) unless the court or other body is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice.(3) A court or other body that grants leave under subsection (1) (f) (ii):(a) must state the reasons why leave is granted, and(b) must ensure that the holder of the report is informed that evidence as to the identity of the person who made the report, or from which the identity of that person could be deduced, has been disclosed.(3A) The protections given by this section to a person who makes a report apply to:(a) any person who provided information on the basis of which the report was made, in good faith, to the person, and(b) any person who otherwise was in good faith concerned in making such a report or causing such a report to be made,in the same way as they apply in respect of the person who actually made the report.(4) Subsection (1) (f) does not prevent the disclosure of information from which the identity of a person may be deduced if the prohibition on the disclosure of that information would prevent the proper investigation of the report.(4A) Subsection (1) (f) also does not prevent the disclosure to a law enforcement agency of the identity of the person who made the report (the reporter), or information from which the identity of the reporter could be deduced, if:(a) the identity of the reporter, or the information, is disclosed in connection with the investigation of a serious offence or reportable conduct alleged to have been committed or done against a child or young person, and(b) the disclosure is necessary for the purposes of safeguarding or promoting the safety, welfare and well-being of any child or young person (whether or not the victim of the alleged offence).(4B) However, subsection (4A) does not apply unless:(a) a senior officer of the law enforcement agency to which the disclosure is made has, before the disclosure is made, certified in writing that obtaining the reporter’s consent would prejudice the investigation of the serious offence or reportable conduct concerned, or(b) the person or body that makes the disclosure has, before making the disclosure, certified in writing that it is impractical to obtain the consent of the reporter.(4C) The person or body that discloses to a law enforcement agency the identity of the reporter, or the information from which the identity of the reporter could be deduced, is required to notify the reporter of the disclosure unless:(a) it is not reasonably practicable in the circumstances to do so, or(b) the law enforcement agency to which the disclosure is made has advised the person or body that notifying the reporter would prejudice the investigation of the serious offence or reportable conduct concerned.(5) (Repealed)(6) In this section:court includes a court exercising federal jurisdiction.
law enforcement agency means any of the following:
(a) the NSW Police Force,(b) the Australian Federal Police,(c) the police force of another State or Territory,(d) a person or body prescribed by the regulations for the purposes of this definition.report includes a report under sections 24, 25, 27, 120, 121 and 122.
reportable conduct means:
(a) reportable conduct within the meaning of section 33 (1) of the Commission for Children and Young People Act 1998, or(b) conduct occurring elsewhere than in New South Wales that, if occurring in New South Wales, would be reportable conduct under paragraph (a).senior officer means:
(a) in relation to the NSW Police Force—a commissioned police officer within the meaning of the Police Act 1990, or(b) in relation to any other law enforcement agency—a person (or class of persons) prescribed by the regulations as a senior officer of the agency.serious offence means:
(a) a serious indictable offence within the meaning of the Crimes Act 1900, or(b) an offence committed elsewhere than in New South Wales that, if committed in New South Wales, would be an offence under paragraph (a).Note. It is an offence under section 254 for a person to disclose any information obtained in connection with the administration or execution of this Act, except in certain circumstances. The maximum penalty is 10 penalty units (currently $1,100) or imprisonment for up to 12 months, or both.
29A Person who makes report is not prevented from helping child or young person
For avoidance of doubt, it is declared that a person who is permitted or required by this Part to make a report is not prevented, by reason only of having made that report, from responding to the needs of, or discharging any other obligations in respect of, the child or young person the subject of the report in the course of that person’s employment or otherwise.