Summary of accreditation provisions impacting out-of-home care providers

Accreditation of designated agencies

Definitions

Defines an agency as:

• A government agency or part of a government agency or
• An organisation or part of an organisation

The definition of an agency has been expanded to include that an agency may be a part of an organisation. For example, where a NSW out-of-home care program sits within a larger national organisation, the program may be accredited rather than the entire organisation. This definition also ensures that individual DCJ districts can continue to be accredited as separate agencies.

Clarifies that grant of accreditation includes renewing an agency’s accreditation.

Recommending and approving accreditation criteria

These provisions have been transferred from the Children and Young Persons (Care and Protection) Regulation 2012.

There is currently no change to the provisions. However, these provisions will be repealed at a later date, when the Child Safe Standards commence as the new accreditation criteria.

Making an application for grant of accreditation

These provisions regarding the application process are unchanged, including provisions for the Children’s Guardian to require additional information to assist in assessing the application.

Determining whether an agency is suitable to be accredited

Clarifies and consolidates existing provisions regarding suitability to be a designated agency

A new provision has been created to disqualify an agency that has had its accreditation cancelled, from being accredited for two years.

Currently, the Children’s Guardian may grant accreditation if satisfied that the agency wholly or substantially meets accreditation criteria.

The Children’s Guardian can also shorten, suspend or cancel an agency’s accreditation if it has not complied with accreditation criteria, has not complied with a condition of accreditation, has not complied with its legislative obligations or if the agency or principal officer made a statement or provided information that it knew to be false or misleading.

These decisions have been consolidated into a provision that sets out the grounds on which the Children’s Guardian may find an agency is not suitable to be accredited.

An agency is not suitable to be accredited if:

• The agency is disqualified from being accredited (new provision); or
• The agency does not wholly or substantially satisfy the accreditation criteria (existing provision); or
• The Children’s Guardian is of the opinion that the agency is not suitable to be a designated agency (new provision).

The Children’s Guardian may form an opinion that an agency is not suitable to be a designated agency if:

• the agency or the principal officer failed to comply with relevant children’s care legislation (existing provision); and/or
• the agency failed to comply with a condition of its accreditation (existing provision); and/or
• the agency or principal officer of the agency made a statement or gave information in connection with the administration of the children’s care legislation knowing it to be false or misleading in a material particular (existing provision); and/or
• another circumstance prescribed by the regulations (new provision).

Withdrawing an application for accreditation

Clarifies existing provisions for an agency to withdraw its application for accreditation.

An agency may withdraw its application for accreditation and the Children’s Guardian may require that the application not be withdrawn until a certain date, to allow for the transition of any children and young people in the care of the agency, to another designated agency.

Granting or refusing accreditation

Clarifies existing provisions

• that the Children’s Guardian must refuse to grant accreditation if the applicant is not suitable to be accredited, unless the Children’s Guardian defers a decision on the application.

Deferring a decision to grant or refuse accreditation

New requirements to strengthen existing provisions.

Currently, the Children’s Guardian may defer a decision to grant or refuse accreditation. There is currently no limit on the length of time a decision may be deferred.

The provisions:

• retain the Children’s Guardian’s power to defer a decision to grant or refuse accreditation.
• makes new provisions limiting the circumstances in which the Children’s Guardian may defer a decision to grant or refuse accreditation:
  • the agency has not met the accreditation criteria, and
  • the agency has submitted an action plan, and
  • the plan has been approved by the Children’s Guardian
• makes a new provision that a deferral period may be for up to 12 months
• makes a new provision that more than 1 deferral may occur, but the total period of the deferrals must not be more than 24 months
• makes a new provision that where a decision has been deferred for 24 months and no decision has been made, the application is automatically refused.

The purpose of these new provisions is to limit the circumstances in which a decision may be deferred and limiting the length of time a decision may be deferred.

A new provision requires an agency to develop an action plan setting out the steps the agency will take to ensure it satisfies the accreditation criteria and the agency must implement the plan. The plan may be amended by agreement with the Children’s Guardian

Review of a decision to refuse accreditation

Clarifies existing provisions that the Children’s Guardian may review a decision to refuse accreditation and may obtain additional information from the applicant as part of the review.

Duration of accreditation

Clarifies existing provisions:

• Where an agency previously held full accreditation, the maximum period of full accreditation is five years
• When the agency did not previously hold full accreditation the maximum period of accreditation is three years

Conditions on accreditation

Clarifies that a condition may be varied by imposing a new condition, substituting a condition, removing a condition or amending a condition.

Transfer of accreditation

The new provisions strengthen the existing provisions.

These provisions retain existing power to transfer accreditation of an organisation, or part of an organisation to another organisation or part of an organisation.

New provisions limit the circumstances in which the Children’s Guardian can approve the transfer of accreditation:

• because of a restructure involving the former agency, the new agency will be exercising the designated agency functions previously exercised by the former agency
• the former agency has merged with, or been acquired by, a new agency
• circumstances prescribed by the regulations.

Surrender of accreditation

Clarifies existing provisions for an agency to surrender its accreditation.

An agency may surrender its accreditation and the Children’s Guardian may require the surrender to not to take effect until a certain date, to allow for the transition of children and young people in the agency’s care to another designated agency.

Cancelling or shortening accreditation

Clarifies the grounds on which the Children’s Guardian may shorten or cancel an agency’s accreditation and the process of cancelling or shortening accreditation

The Children’s Guardian may shorten or cancel an agency’s accreditation if:

• the agency is not suitable to be accredited
• the accreditation was granted in error
• a ground prescribed by the regulations.

The Children’s Guardian must give notice in writing of the decision to cancel or shorten the accreditation including the date or time from which the decision takes effect and the grounds for the decision.

The Children’s Guardian must not cancel the accreditation of a government agency or part of a government agency unless it has fist notified the Minister about why the cancellation is considered necessary.

The Children’s Guardian may amend or revoke a notice shortening or cancelling accreditation.

Accreditation of adoption service providers

Definitions

Defines an organisation as a charitable organisation within the meaning of the Adoption Act 2000, or part of a charitable organisation.

The definition of an organisation has been expanded to include that an agency may be a part of an organisation. For example, where a NSW adoption program sits within a larger national organisation, the program may be accredited rather than the entire organisation.

Clarifies that grant of accreditation includes renewing an agency’s accreditation.

Recommending and approving accreditation criteria

These provisions will be repealed at a later date, when the Child Safe Standards commence as the new accreditation criteria. Until that time they are retained:

• existing provisions for the Minister to approve, on the recommendation of the Children’s Guardian, accreditation criteria to be met by accredited adoption service providers
• existing requirement that the Children’s Guardian must publish accreditation criteria on its website and
• provisions for the Children’s Guardian to recognise compliance with a criterion required by another entity as evidence of compliance with the accreditation criteria.

Determining whether an organisation is suitable to be accredited

A new provision has been created to disqualify an organisation that has had its accreditation cancelled, from being accredited for two years.

Clarifies and consolidates existing provisions regarding suitability to be an accredited adoption service provider.

Currently, the Children’s Guardian may grant accreditation if satisfied that the organisation wholly or substantially meets accreditation criteria.

The Children’s Guardian can also shorten, suspend or cancel an organisation’s accreditation if it has not complied with accreditation criteria, has not complied with a condition of accreditation, has not complied with its legislative obligations or if the organisation or principal officer made a statement or provided information that it knew to be false or misleading.

These decisions have been consolidated into a provision that sets out the grounds on which the Children’s Guardian may find an organisation is not suitable to be accredited.

An organisation is not suitable to be accredited if:

• The organisation is disqualified from being accredited (new provision) or
• The organisation does not wholly or substantially satisfy the accreditation criteria (existing provision) or
• The Children’s Guardian is of the opinion that the organisation is not suitable to be an accredited adoption service provider (new provision).

The Children’s Guardian may form an opinion that an organisation is not suitable to be an accredited adoption service provider if:

• the organisation or the principal officer failed to comply with relevant children’s care legislation (existing provision) or
• the organisation failed to comply with a condition of its accreditation (existing provision) or
• the organisation or principal officer of the organisation made a statement or gave information in connection with the administration of the children’s care legislation knowing it to be false or misleading in a material particular (existing provision) or
• another circumstance prescribed by the regulations (new provision).

Withdrawing an application for accreditation

Clarifies existing provisions for an organisation to withdraw its application for accreditation.

An organisation may withdraw its application for accreditation and the Children’s Guardian may require that the application not be withdrawn until a certain date, to allow for the transition of any children and young people in the care of the organisation, to another accredited adoption service provider.

Granting or refusing accreditation

Clarifies that the Children’s Guardian must refuse to grant accreditation if the applicant is not suitable to be accredited, unless the Children’s Guardian defers a decision on the application.

Deferring a decision to grant or refuse accreditation

New requirements to strengthen existing provisions

Currently, the Children’s Guardian may defer a decision to grant or refuse accreditation. There is currently no limit on the length of time a decision may be deferred.

The provisions:

• retain the Children’s Guardian’s power to defer a decision to grant or refuse accreditation
• makes new provisions limiting the circumstances in which the Children’s Guardian may defer a decision to grant or refuse accreditation
  • the organisation has not met the accreditation criteria, and
  • the organisation has submitted an action plan and
  • the plan has been approved by the Children’s Guardian
• makes a new provision that a deferral period may be for up to 12 months
• makes a new provision that more than 1 deferral may occur, but the total period of the deferrals must not be more than 24 months
• makes a new provision that where a decision has been deferred for 24 months and no decision has been made, the application is automatically refused.

The purpose of these new provisions is to limit the circumstances in which a decision may be deferred and limiting the length of time a decision may be deferred.

A new provision requires an organisation to develop an action plan setting out the steps the organisation will take to ensure it satisfies the accreditation criteria and the organisation must implement the plan. The plan may be amended by agreement with the Children’s Guardian.

Review of a decision to refuse accreditation

Clarifies existing provisions that the Children’s Guardian may review a decision to refuse accreditation and may obtain additional information from the applicant as part of the review.

Duration of accreditation

Clarifies existing provisions where an organisation previously held full accreditation, the maximum period of full accreditation is five years.

When the organisation did not previously hold full accreditation the maximum period of accreditation is three years.

Conditions on accreditation

Clarifies that a condition may be varied by imposing a new condition, substituting a condition, removing a condition or amending a condition. Otherwise there is no change to existing provisions that accreditations may be subject to conditions.

Transfer of accreditation

Makes new provisions to strengthen existing provisions

These provisions retain existing power to transfer accreditation of an organisation, or part of an organisation to another organisation or part of an organisation.

New provisions limit the circumstances in which the Children’s Guardian can approve the transfer of accreditation:

• because of a restructure involving the former organisation, the new organisation will be exercising the accredited adoption service provider functions previously exercised by the former organisation
• the former organisation has merged with, or been acquired by, a new organisation
• circumstances prescribed by the regulations.

Surrender of accreditation

Clarifies existing provisions for an organisation to surrender its accreditation

An organisation may surrender its accreditation and the Children’s Guardian may require the surrender to not to take effect until a certain date, to allow for the transition of children and young people in the agency’s care to another accredited adoption service provider.

Cancelling or shortening accreditation

Clarifies the grounds on which the Children’s Guardian may shorten or cancel an organisation’s accreditation and the process of cancelling or shortening accreditation.

The Children’s Guardian may shorten or cancel an organisation’s accreditation if:

• the organisation is not suitable to be accredited
• the accreditation was granted in error
• a ground prescribed by the regulations.

The Children’s Guardian must give notice in writing of the decision to cancel or shorten the accreditation including the date or time from which the decision takes effect and the grounds for the decision.

The Children’s Guardian may amend or revoke a notice shortening or cancelling accreditation.

Administrative review of decisions made by the Children’s Guardian

Applications to Civil and Administrative Tribunal for administrative review

Consolidates the reviewable decisions for designated agencies and accreditation adoption service providers.

An application may be made to NCAT for administrative review of a decision by the Children’s Guardian to do or refuse to do the following in relation to accreditation as a designated agency or an accredited adoption service provider:

• grant accreditation
• impose a condition on an accreditation or vary the conditions to which an accreditation is subject
• transfer an accreditation
• cancel or shorten the period of an accreditation.