2002
2002
2005-06-08
act
government
publicspecial
act.reprint
partuncommenced
2002-11-12
0
none
act-2002-098
45684bec-75c0-4783-a730-9169ad2de93a
05fad8a9-f70b-483b-8e11-5d683140668a
See
also:
Statute Law (Miscellaneous Provisions)
Bill 2005
An Act to amend the Child
Protection (Offenders Registration) Act 2000, the Child Protection (Prohibited Employment) Act
1998, the Commission for Children and Young
People Act 1998 and the Summary Offences
Act 1988 to make further provision with respect to the
protection of children; and for other purposes.
1Name of
Act
This Act is the Child Protection
Legislation Amendment Act 2002.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Amendment of Child Protection (Offenders Registration) Act
2000 No 42
The Child Protection
(Offenders Registration) Act 2000 is amended as set out in
Schedule 1.
4Amendment of Child Protection (Prohibited Employment) Act
1998 No 147
The Child Protection
(Prohibited Employment) Act 1998 is amended as set out in
Schedule 2.
5Amendment of Commission for Children and Young People Act
1998 No 146
The Commission for
Children and Young People Act 1998 is amended as set out
in Schedule 3.
6Amendment of Summary Offences Act 1988 No
25
The Summary Offences
Act 1988 is amended as set out in Schedule
4.
Schedule 1Amendment of Child Protection (Offenders Registration) Act
2000
(Section 3)
[1]Section 3
Definitions
Insert after paragraph (b1) of the definition of
Class 1
offence in section 3 (1):
(b2)
an offence an element of which is an intention to
commit an offence referred to in paragraph (a) or (b),
or
[2]Section 3
(1)
Insert after paragraph (e) of the definition of
Class 2
offence:
(e1)
an offence an element of which is an intention to
commit an offence referred to in paragraph (a), (b), (c), (d) or (e),
or
[3]Section 3
(5)
Insert after section 3 (4):
(5)
For the purposes of this Act, section 579 of the
Crimes Act 1900 does not apply to or in
respect of a registrable offence.
[4]Section 12 Manner in which
relevant personal information to be given
Omit section 12 (1). Insert instead:
(1)
The information that is required to be given to
the Commissioner of Police under this Division is to be given to a police
officer:
(a)
at any police station in the locality in which
the registrable person is currently residing, or
(b)
if a direction is given in accordance with the
regulations as to the police station at which the information is to be given,
at the police station so directed, or
(c)
at some other place approved (either generally or
in a particular case) by the Commissioner of
Police.
[5]Section 12
(3)
Insert at the end of section 12 (3) (b):
, and
(c)
if the information was given at a place other
than a police station, the address of the place at which the information was
given.
[6]Section 12
(7)
Omit “at a police
station”.
[7]Section
21A
Insert after section 21:
21ACertificate
evidence
(1)
In proceedings under this Act, a certificate
signed by the Commissioner of Police, or a member of NSW Police holding a
position designated in writing by the Commissioner of Police for the purposes
of this section, certifying that the Register of Offenders:
(a)
at any particular date contained information
specified in the certificate, or
(b)
indicated that, during any particular period, a
specified person failed to notify information as required by this
Act,
is evidence (unless evidence to the contrary is adduced)
of the particulars certified in the certificate.
(2)
Not more than 3 positions are to be designated at
any one time under subsection (1).
[8]Schedule 2 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
Child Protection Legislation
Amendment Act 2002
[9]Schedule 2, clause
2
Insert after clause 1:
2Registrable
offences
(1)
In this clause:
amending
Act means the Child Protection
Legislation Amendment Act 2002.
new
registrable person means a person who becomes a registrable
person on the commencement of an amendment made by the amending Act because of
that amendment.
(2)
The amendments made by Schedule 1 [1], [2] and
[3] to the amending Act are taken to have had effect from 15 October
2001.
(3)
A new registrable person is taken to have
complied with any reporting obligations the person may have had for the period
commencing on 15 October 2001 and ending on the commencement of this
clause.
(4)
Division 1 of Part 2 (except section 7) and
section 10 (1) do not apply to a new registrable person who is not in
government custody at the commencement of this clause.
(5)
A new registrable person who is not in government
custody at the commencement of this clause must notify the Commissioner of
Police of the relevant personal information within 28 days after the person is
given written notice under section 7.
(6)
Division 1 of Part 2 (except sections 6, 7 and 8)
and section 10 (1) do not apply to a new registrable person who is in
government custody at the commencement of this clause.
(7)
A new registrable person who is in government
custody at the commencement of this clause must notify the Commissioner of
Police of the relevant personal information within 28 days after the person
ceases to be in government custody.
(8)
A reference in:
(a)
the definition of reporting
obligations in section 3 (1) to Division 2 of Part 2
includes a reference to this clause, and
(b)
section 12 (1) to “information that is
required to be given to the Commissioner of Police under this Division”
includes a reference to information that is required to be given to the
Commissioner of Police under this clause.
Schedule 2Amendment of Child Protection (Prohibited Employment) Act
1998
(Section 4)
[1]Section 5 Prohibited
persons
Insert after paragraph (d) of the definition of
serious
sex offence in section 5 (3):
(d1)
an offence an element of which is an intention to
commit an offence referred to in paragraph (a), (b) or (d),
or
[2]Section 5
(6)
Insert after section 5 (5):
(6)
For the purposes of this Act, section 579 of the
Crimes Act 1900 does not apply to or in
respect of a serious sex offence.
[3]Section
8A
Insert before section 9:
8ACommission may make
declarations concerning prohibited persons
(1)
On the application of a prohibited person, the
Commission for Children and Young People may make an order declaring that this
Act is not to apply to the person in respect of a specified
offence.
(2)
An application under this section must be made in
a form approved by the Commission for Children and Young
People.
(3)
The Commission for Children and Young People is
not to make an order under this section unless it considers that the person
the subject of the proposed order does not pose a risk to the safety of
children.
(4)
In deciding whether or not to make an order under
this section in relation to a person, the Commission for Children and Young
People is to take into account the matters referred to in section 9 (5)
(a)–(e) and such other matters as it considers
relevant.
(5)
Orders under this section may be made subject to
conditions.
(6)
The Commission for Children and Young People is
not to make an order under this section that is subject to conditions without
the consent in writing of the applicant to the
conditions.
(7)
If the Commission for Children and Young People
proposes to make an order under this section that is subject to conditions, it
is to notify the applicant in writing that:
(a)
it proposes to make the order subject to the
conditions specified in the notification, and
(b)
the applicant may consent in writing to the
making of the order subject to those specified conditions or request the
Commission to take no further action, and
(c)
the Commission will take no further action in
relation to the application unless the applicant has consented in writing to
the making of the proposed order subject to the specified conditions,
and
(d)
if the applicant does not consent to the making
of the order subject to the specified conditions, the applicant may apply
under section 9 to the Industrial Relations Commission or the Administrative
Decisions Tribunal for an order declaring that this Act is not to apply to the
person in respect of a specified offence.
(8)
If the Commission for Children and Young People
makes an order under this section, it is to notify the applicant in writing
that the Commission has made the order and (if applicable) that the order is
subject to the conditions specified in the notification.
(9)
If the Commission for Children and Young People
considers that an applicant under this section poses a risk to the safety of
children or, for whatever reason, cannot make a decision as to whether the
applicant poses such a risk, the Commission is to notify the applicant in
writing that:
(a)
the Commission cannot make an order under this
section, and
(b)
the Commission will take no further action in
relation to the application, and
(c)
the applicant may apply under section 9 to the
Industrial Relations Commission or the Administrative Decisions Tribunal for
an order declaring that this Act is not to apply to the person in respect of a
specified offence.
(10)
On an application under this section, the
Commission for Children and Young People may, by order, stay the operation of
a prohibition under this Act pending the determination of the
matter.
(11)
The Commission for Children and Young People must
notify the Commissioner of Police of the terms of any order made under this
section.
[4]Section 9 IRC and ADT may make
declarations concerning prohibited persons
Insert “, by order,” after
“may” in section 9 (6).
[5]Section 9
(8)
Insert “or section 8A” after
“application for an order under this
section”.
[6]Section
9A
Insert after section 9:
9AMultiple applications not
permitted
A person may not make an application under
section 8A or 9 if the person has another application pending under either of
those sections.
[7]Section
15A
Insert after section 15:
15ASavings, transitional and
other provisions
Schedule 1 has effect.
[8]Schedule
1
Insert after section 16:
Schedule 1Savings, transitional and
other provisions
(Section 15A)
Part 1Preliminary
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
Child Protection Legislation
Amendment Act 2002
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on
enactment of Child Protection Legislation
Amendment Act 2002
2Prohibited
persons
(1)
In this clause, new
prohibited person means a person who becomes a prohibited
person on the commencement of an amendment made by the Child
Protection Legislation Amendment Act 2002 to this Act or
the Child Protection (Offenders Registration) Act
2000 because of that amendment.
(2)
Section 6 (3) and (4) apply to and in respect of
a person who is a new prohibited person as if:
(a)
the references in those subsections to “the
commencement of this section” and “that commencement” were
references to the day on which the person became a new prohibited person,
and
(b)
the words “and who is a prohibited person
at that commencement” were omitted.
(3)
Section 7 (2) applies to and in respect of an
employee who is a new prohibited person as if the references in that
subsection to “the commencement of this subsection” and
“that commencement” were references to the day on which the
employee became a new prohibited person.
(4)
Section 7 (3) applies to and in respect of an
employee who is a new prohibited person as if the reference in that subsection
to “the commencement of that subsection” were a reference to the
day on which the employee became a new prohibited
person.
(5)
Section 8 (2) applies to and in respect of a
prohibited person who is a new prohibited person as if the reference in that
subsection to “the commencement of this section” were a reference
to the day on which the person became a new prohibited
person.
Schedule 3Amendment of Commission for Children and Young People Act
1998
(Section 5)
[1]Section 14A Powers of
Commission for Children and Young People to compel production of
information
Omit “such a direction” from section
14A (2).
Insert instead “a direction under
subsection (1)”.
[2]Section 14A
(3)
Insert after section 14A (2):
(3)
For the purpose of determining an application for
an order under section 8A of the Child Protection
(Prohibited Employment) Act 1998, the Commission may, by
notice in writing served on an officer of a government agency or any other
person, request the officer or other person to send to the Commission, on or
before a day specified in the notice, a statement setting out such information
as is so specified.
(4)
Any such officer or other person is authorised to
provide a statement requested under subsection (3) to the
Commission.
(5)
The Commission may request a statement under
subsection (3) only if the applicant for the order has consented in writing to
the Commission doing so.
(6)
The Commission is to give a copy of every
statement referred to in subsection (3) that it receives in relation to an
application for an order to the applicant.
[3]Section 33
Definitions
Insert in alphabetical order in section 33
(1):
approved
screening agency means the Commission or an employer (or
employer-related body) approved by the Minister as referred to in section 37
(4).
[4]Section 33
(1)
Insert “or as the holder of a remunerated
position” after “employment” in paragraph (a) of the
definition of employment.
[5]Section 33
(1)
Insert “, or an offence an element of which
is an intention to commit such an offence, or an offence of attempting, or of
conspiracy or incitement, to commit any of the preceding offences” after
“child pornography” in the definition of relevant
criminal record.
[6]Section 33
(4)
Insert after section 33 (3):
(4)
For the avoidance of doubt, a reference to
disciplinary proceedings in the definition of relevant
disciplinary proceedings in subsection (1) includes a
reference to the investigation of, and the taking of action in relation to,
complaints under Part 8A of the Police Act
1990 and the taking of action under Part 9 of that
Act.
[7]Section 33
(5)
Insert at the end of section 33:
(5)
For the purposes of this Act, section 579 of the
Crimes Act 1900 does not apply to or in
respect of an offence referred to in the definition of relevant
criminal record in subsection (1).
[8]Section 37 Employment
screening mandatory for preferred applicants for certain child-related
employment
Insert after section (4):
(4A)
An employer is taken to have fulfilled the
employer’s obligations in relation to carrying out a procedure referred
to in section 34 (a) and section 34 (c) (to the extent that it relates to a
procedure referred to in section 34 (a)) if:
(a)
the employer engages an approved screening agency
to carry out those procedures, and
(b)
the employer receives the results of carrying out
those procedures from that agency.
(4B)
For the purposes of this section, an employer or
an approved screening agency need only carry out such of the procedures
referred to in section 34 (a) and section 34 (c) (to the extent that it
relates to a procedure referred to in section 34 (a)) in relation to an
applicant for employment as are required by this Part, and as are able, to be
carried out:
(a)
at the time the person is being considered for
employment, or
(b)
if the carrying out of the procedures has been
deferred as referred to in subsection (3), at the time those procedures are
required to be carried out in accordance with that
subsection.
[9]Section 38 Notification of
information relating to relevant criminal records or apprehended violence
orders
Insert “, or any relevant apprehended
violence orders in respect of persons,” after “of persons”
in section 38 (1).
[10]Section 38
(3)
Insert at the end of section 38 (3) (b):
, and
(c)
information relating to offences, despite
anything to the contrary in section 579 of the Crimes Act
1900.
[11]Section 38
(4)
Insert “, or information relating to
relevant apprehended violence orders in respect of persons,” after
“of persons”.
[12]Section
52A
Insert after section 52:
52ASavings, transitional and
other provisions
Schedule 3 has effect.
[13]Schedule
3
Insert after Schedule 2:
Schedule 3Savings, transitional and
other provisions
(Section 52A)
Part 1Preliminary
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of the following
Acts:
this Act
Child Protection Legislation
Amendment Act 2002
(2)
Any such provision may, if the regulations so
provide, take effect from the date of assent to the Act concerned or a later
date.
(3)
To the extent to which any such provision takes
effect from a date that is earlier than the date of its publication in the
Gazette, the provision does not operate so as:
(a)
to affect, in a manner prejudicial to any person
(other than the State or an authority of the State), the rights of that person
existing before the date of its publication, or
(b)
to impose liabilities on any person (other than
the State or an authority of the State) in respect of anything done or omitted
to be done before the date of its publication.
Part 2Provisions consequent on
enactment of Child Protection Legislation
Amendment Act 2002
2Employment
screening
(1)
A provision of section 37 (4A) or (4B) applies to
and in respect of the screening of an applicant for employment whether
occurring before or after the commencement of the
provision.
(2)
Section 39 (3) extends to disciplinary
proceedings within the meaning of section 33 as amended by Schedule 3 [6] to
the Child Protection Legislation Amendment Act
2002.
Schedule 4Amendment of Summary Offences Act
1988
(Section 6)
[1]Section 11G Loitering by
convicted child sexual offenders near premises frequented by
children
Insert after paragraph (c) of the definition of
convicted
child sexual offender in section 11G (2):
(c1)
an offence an element of which is an intention to
commit an offence referred to in paragraph (a), (b) or
(c),
[2]Section 11G
(3)
Insert after section 11G (2):
(3)
For the purposes of this section, section 579 of
the Crimes Act 1900 does not apply to or in
respect of an offence referred to in the definition of convicted
child sexual offender in subsection
(2).
Historical
notes
Table of amending
instruments
Child Protection Legislation
Amendment Act 2002 No 98. Second reading speech made:
Legislative Assembly, 12.11.2002; Legislative Council, 21.11.2002. Assented to
29.11.2002. Date of commencement, except Sch 3 [6] and [13] to the extent that
it inserts cl 2 (2) of Sch 3 into the Commission for
Children and Young People Act 1998, 10.2.2003, sec 2 and
GG No 39 of 7.2.2003, p 758; date of commencement of Sch 3 [6] and [13] to the
extent that it inserts cl 2 (2) of Sch 3 into the Commission for Children and Young People Act
1998: not in force.