The Guardian's history and governing legislation
The position of Guardian for Children and Young People was established in December 2005 by an amendment to the Children’s Protection Act 1993 and continues to operate under that Act until superseded in 2017.
In 2016, as part of a suite of reforms to child protection legislation, Parliament passed the Children and Young People (Oversight and Advocacy Bodies) Act 2016, Part 3 of which now provides for the Guardian role and functions. This Act also covers the Child Development Council, the Commissioner for Children and Young People, and the Child Death and Serious Injury Review Committee.
Part 3 of the 2016 Act, however, only came into effect following passage of the Children and Young People (Safety) Act 2017, which also repealed the Children’s Protection Act 1993.
The Guardian’s functions set out in section 26 of the Children and Young People (Oversight and Advocacy Bodies) Act 2016 are to:
- promote the best interests of children under the guardianship, or in the custody, of the Minister, and in particular those in alternative care
- act as an advocate for the interests of children under the guardianship, or in the custody, of the Minister and, in particular, for any such child who has suffered, or is alleged to have suffered, sexual abuse
- monitor the circumstances of children under the guardianship, or in the custody, of the Minister
- provide advice to the Minister on the quality of the provision of care for children under the guardianship, or in the custody of, the Minister and on whether the children's needs are being met
- inquire into, and provide advice to the Minister in relation to, systemic reform necessary to improve the quality of care provided for children in alternative care
- investigate and report to the Minister on matters referred to the Guardian by the Minister, and
- such other functions as may be conferred on the Guardian .
In carrying out functions under this section, the Guardian must:
- encourage children who are affected by issues that the Guardian has under consideration to express their own views and give proper weight to those views and
- pay particular attention to the needs of children under the guardianship, or in the custody, of the Minister who have a physical, psychological or intellectual disability and
- receive and consider information, reports and materials relevant to carrying out the Guardian's statutory functions.
Direction for the Guardian also derives from the Guiding principles outlined in the Children and Young People (Safety) Act 2017, with particular note made of the commitment to the Aboriginal and Torres Strait Islander Child Placement Principle.
The Children and Young People (Safety) Act 2017 also directs the Guardian in relation to the Charter of Rights for Children and Young People in Care.
The Guardian has the powers necessary or expedient for, or incidental to, the performance of the Guardian's functions.
The Guardian also holds the separate statutory office of Training Centre Visitor under the Youth Justice Administration Act 2016.