Children and Young People Act 2008

This Act is the Children and Young People Act 2008.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere.

For example, the signpost definition ‘drug of dependence—see the Drugs of Dependence Act 1989, dictionary.’ means that the term ‘drug of dependence’ is defined in the dictionary to that Act and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

The functions under this Act may be exercised for a child or young person, or a young offender or young detainee—

who ordinarily lives in the ACT; or

who does not ordinarily live in the ACT, but who is in the ACT; or

about whom a report is made under—

section 354 (Voluntary reporting of risk of significant harm) arising from something happening in the ACT; or

section 356 (Offence—mandatory reporting of significant harm) arising from something happening in the ACT; or

section 362 (Prenatal reporting of anticipated risk of significant harm) if the pregnant woman ordinarily lives in the ACT or is in the ACT.

Part 1.2 Objects, principles and considerations

The objects of this Act include—

providing for, and promoting, the safety, welfare and wellbeing of children and young people in a way that—

recognises their right to grow in a safe and stable environment; and

takes into account the responsibilities of parents, families, the community and the whole of government for them; and

ensuring that children and young people are provided with a safe and nurturing environment by organisations and people who, directly or indirectly, provide for their safety, welfare and wellbeing; and

providing for children and young people to receive the care and protection necessary to protect them from significant harm by providing whole of government assistance to them, their parents and families, the community and others who have a responsibility for them; and

ensuring that Aboriginal and Torres Strait Islander people are included and participate in—

providing for, and promoting, the safety, welfare and wellbeing of Aboriginal and Torres Strait Islander children and young people; and

providing for Aboriginal and Torres Strait Islander children and young people to receive the care and protection necessary to protect them from significant harm; and

rehabilitating and reintegrating Aboriginal and Torres Strait Islander young offenders; and

ensuring that services provided by, or for, government for the safety, welfare and wellbeing of children and young people—

are centred on the needs of children and young people; and

are informed by processes which engage children and young people, wherever possible, and take their views and wishes into account; and

foster and promote the health, education, developmental needs, spirituality, self-respect, self-reliance and dignity of children and young people; and

respect the individual race, ethnicity, religion, disability, sexuality and culture of children and young people; and

ensuring that young offenders—

receive positive support and opportunities to become rehabilitated and reintegrated community members; and

share responsibility for rehabilitation and reintegration with their parents and families, the community and the government in partnership; and

imposing standards that must be complied with for the delivery of services to children and young people; and

ensuring the protection of children and young people in employment.

In making a decision under this Act in relation to a particular child or young person, the decision-maker must regard the best interests of the child or young person as the paramount consideration.

In making a decision under this Act otherwise than in relation to a particular child or young person, the decision-maker must consider the best interests of children and young people.

Note 1 For the criminal matters chapters (see s 91), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person, see s 94 (Youth justice principles).

Note 2 For the care and protection chapters (see s 336), there are further provisions about how a decision-maker decides what is in the best interests of a child or young person (see s 349).

To remove any doubt, a reference in any section of this Act to the best interests of a child or young person does not limit this section.

In making a decision under this Act in relation to a child or young person, a decision-maker must have regard to the following principles where relevant, except when it is, or would be, contrary to the best interests of a child or young person:

the child’s or young person’s sense of racial, ethnic, religious, individual or cultural identity should be preserved and enhanced;

the child’s or young person’s education, training or lawful employment should be encouraged and continued without unnecessary interruption;

the child’s or young person’s age, maturity, developmental capacity, sex, background and other relevant characteristics should be considered;

delay in decision-making processes under the Act should be avoided because delay is likely to prejudice the child’s or young person’s wellbeing.

Note In addition to these general principles, the following principles also apply:

for the care and protection chapters—care and protection principles (see s 350);

for ch 20—childcare services principles (see s 730).

A decision-maker exercising a function under this Act must, where practicable and appropriate, have qualifications, experience or skills suitable to apply the principles in subsection (1) in making decisions under the Act in relation to children and young people.

In making a decision under this Act in relation to an Aboriginal or Torres Strait Islander child or young person, the decision-maker must take into account the following principles (the Aboriginal and Torres Strait Islander children and young people placement principles) in addition to the matters in section 8 and section 9:

the principle (the prevention principle) that children and young people should be brought up within their own family, community and culture;

the principle (the partnership principle) that Aboriginal and Torres Strait Islander community representatives should be given opportunities to participate in—

the design and delivery of services for children and young people; and

decisions under this Act about children and young people;

the principle (the placement principle) that a child or young person who is to be placed with an out-of-home carer must be placed in accordance with the priorities for placement set out in section 513;

the principle (the participation principle) that a child or young person, their parents and other family members should be given opportunities to participate in decision-making processes about care arrangements for the child or young person, including placement and contact;

the principle (the connection principle) that children and young people should have their connections to family, community, culture and country supported and maintained.

Note In making a decision under this Act in relation to an Aboriginal or Torres Strait Islander child or young person, the decision-maker must also consider the child’s or young person’s rights under the Human Rights Act 2004, s 27 (Cultural and other rights of Aboriginal and Torres Strait Islander peoples and minorities) (see that Act, s 40B).

The following principles are to be applied in administering this Act:

Aboriginal and Torres Strait Islander people should participate in the care and protection of their children and young people with as much self-determination as is possible;

the government has a responsibility to protect and promote Aboriginal and Torres Strait Islander children and young people’s cultural identity.

Part 1.3 Important concepts

Division 1.3.1 Definitions

In this Act:

child means a person who is under 12 years old.

In this Act:

young person means a person who is 12 years old or older, but not yet an adult.

Note Adult is defined in the Legislation Act, dict, pt 1.