2012
2012
2012-10-17
act
government
publicgeneral
act.reprint
alluncommenced
retroactiveamendments
2012-06-13
2012-06-13
0
2012
none
act-2012-051
c6279fd0-d2b0-42fd-b8a7-24b52e16c7a3
74f3bf16-e2fd-4e0d-8da0-41e9d73ddc65
See
also:
Statute Law (Miscellaneous Provisions)
Bill (No 2) 2012
Note—
Amending provisions are subject to automatic
repeal pursuant to sec 30C of the Interpretation
Act 1987 No 15 once the amendments have taken
effect.
An Act with respect to checks and clearances for
the purposes of working with children; and for other
purposes.
Part 1Preliminary
1Name of
Act
This Act is the Child Protection
(Working with Children) Act 2012.
2Commencement
This Act commences on a day or days to be
appointed by proclamation.
3Object of
Act
The object of this Act is to protect
children:
(a)
by not permitting certain persons to engage in
child-related work, and
(b)
by requiring persons engaged in child-related
work to have working with children check
clearances.
Note—
For other legislation relating to the safety,
welfare and well-being of children and the related functions of the
Commission, see the Commission for Children and Young
People Act 1998. In particular, see sections 10, 11, 14
and 16 of that Act.
4Safety, welfare and well-being
of children to be paramount consideration
The safety, welfare and well-being of children
and, in particular, protecting them from child abuse, is the paramount
consideration in the operation of this Act.
5Definitions
(1)
In this Act:
adult means a person who is 18 years
of age or older.
approved
provider means an approved provider under the Children (Education and Care Services) National Law
(NSW) or the Children
(Education and Care Services) Supplementary Provisions Act
2011.
assessment requirement—see
section 14.
authorised carer has the same
meaning as in the Children and Young Persons (Care
and Protection) Act 1998.
certified
supervisor means a certified supervisor under the Children (Education and Care Services) National Law
(NSW) or the Children
(Education and Care Services) Supplementary Provisions Act
2011.
child-related work—see
sections 6 and 7.
children means persons under the age
of 18 years.
Commission means the Commission for
Children and Young People constituted by the Commission for
Children and Young People Act 1998.
Commissioner means the Commissioner
for the Commission for Children and Young People.
conviction includes a finding that
the charge for an offence is proven, or that a person is guilty of an offence,
even though the court does not proceed to a conviction.
current
application for a working with children check clearance
means an application that has not been finally determined or withdrawn or
terminated.
designated agency has the same
meaning as in the Children and Young Persons (Care
and Protection) Act 1998.
disqualified person—see
section 18 (1).
education
and care service means an education and care service within
the meaning of the Children (Education and Care
Services) National Law (NSW) or a State regulated
education and care service within the meaning of the Children (Education and Care Services) Supplementary
Provisions Act 2011.
employer includes:
(a)
a person who, in the course of business, arranges
for the placement of a person in employment with others,
or
(b)
a person who engages a person under a contract to
perform work, or
(c)
a person who engages a worker to perform work as
a volunteer for the person under an agreement (whether written or
unwritten).
enabling
order—see section 28.
exercise a function includes perform
a duty.
function includes a power, authority
or duty.
government agency includes any
public or local authority.
interim
bar—see section 17 (1).
reporting
body—see section 35 (4).
Tribunal means the Administrative
Decisions Tribunal.
worker means any person who is
engaged in work in any of the following capacities:
(a)
as an employee,
(b)
as a self-employed person or as a contractor or
subcontractor,
(c)
as a volunteer,
(d)
as a person undertaking practical training as
part of an educational or vocational course (other than as a school student
undertaking work experience),
(e)
as a minister, priest, rabbi, mufti or other like
religious leader or spiritual officer of a religion or other member of a
religious organisation.
working
with children check clearance or clearance means an authorisation
that is in force under this Act to engage in child-related
work.
working
with children check number means the number given for a
working with children check clearance under this Act.
(2)
Notes included in this Act do not form part of
this Act.
Part 2Restrictions on child-related
work
Division 1Child-related
work
6Child-related
work
(1)
A worker is engaged in child-related work for the purposes
of this Act if:
(a)
the worker is engaged in work referred to in
subsection (2) that involves direct contact by the worker with children,
or
(b)
the worker is engaged in work in a child-related
role referred to in subsection (3).
(2)
The work referred to is work for, or in
connection with, any of the following that is declared by the regulations to
be child-related work:
(a)child
development
mentoring and counselling services for
children,
(b)child
protection
child protection services,
(c)children’s health
services
the provision of health care in wards of
hospitals where children are treated and the direct provision of other child
health services,
(d)clubs or other bodies
providing services for children
clubs, associations, movements, societies or
other bodies (including bodies of a cultural, recreational or sporting nature)
providing programs or services for children,
(e)disability
services
respite care or other support services for
children with a disability,
(f)early education and child
care
education and care services, child care centres,
nanny services and other child care,
(g)education
schools or other educational institutions (other
than universities) and private coaching or tuition of
children,
(h)entertainment for
children
sporting, cultural or other entertainment venues
used primarily by children and entertainment services for
children,
(i)justice
services
detention centres (within the meaning of the
Children (Detention Centres) Act 1987)
and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act
1999),
(j)religious
services
any religious organisation,
(k)residential
services
refuges used by children, long term home stays
for children, boarding houses or other residential services for children and
overnight camps for children,
(l)transport services for
children
transport services especially for children,
including school bus services and taxi services for children with a disability
and supervision of school road crossings,
(m)other
any other service for children prescribed by the
regulations.
(3)
The following roles are referred to:
(a)
an approved provider or manager of an education
and care service,
(b)
a certified supervisor of an education and care
service,
(c)
an authorised carer,
(d)
an assessment officer (within the meaning of
section 27A of the Children and Young Persons (Care
and Protection) Act 1998),
(e)
the principal officer of a designated
agency,
(f)
the principal officer of an accredited adoption
service provider within the meaning of the Adoption Act
2000,
(g)
any other role with respect to children
prescribed by the regulations.
(4)
In this section:
direct
contact with children means:
(a)
physical contact, or
(b)
face to face contact.
7Additional child-related
work
(1)
A worker is taken to be engaged in child-related work if the worker is
engaged, or proposes to engage, in work (other than as a volunteer) that is
the subject of a requirement under this section.
(2)
The employer or proposed employer of a worker
engaged in work for which a working with children check clearance is not
required that involves access to confidential records or information about
children may, by notice in writing to the worker, require the worker to obtain
a clearance for the purposes of engaging in the work
concerned.
(3)
The employer, or proposed employer, may at any
time, by notice in writing given to the worker, revoke a requirement made
under this section.
(4)
An employer may make or revoke a requirement
under this section only with the approval of the
Commission.
Division 2Mandatory requirements for
child-related work
8Restrictions on engaging in
child-related work
(1)
A worker must not engage in child-related work
unless:
(a)
the worker holds a working with children check
clearance of a class applicable to the work, or
(b)
there is a current application by the worker to
the Commission for a clearance of a class applicable to that
work.
Maximum penalty: 100 penalty units, or
imprisonment for 2 years, or both.
(2)
A worker must not engage in child-related work at
any time that the worker is subject to an interim bar.
Maximum penalty: 100 penalty units, or
imprisonment for 2 years, or both.
(3)
It is a defence to proceedings for an offence
against this section if the accused person establishes that:
(a)
the accused person did not know, at the time the
offence was committed, that the work concerned was child-related work,
or
(b)
the accused person was exempted by the
regulations from the requirement to hold a
clearance.
Note—
Division 3 also requires adult persons residing
with authorised carers or approved providers of education and care services
and potential adoptive parents to hold clearances or to have a current
application for a clearance.
9Employers must require
clearance or current application
(1)
An employer must not commence employing, or
continue to employ, a worker in child-related work if the employer knows or
has reasonable cause to believe that:
(a)
the worker is not the holder of a working with
children check clearance that authorises that work and that there is no
current application by the worker to the Commission for a clearance of a class
applicable to that work, or
(b)
the worker is subject to an interim
bar.
Maximum penalty: 100 penalty units, in the case
of a corporation, and 50 penalty units in any other
case.
(2)
It is a defence to proceedings for an offence
against this section if the accused person establishes that, at the time the
offence was committed:
(a)
the accused person had been advised by the
Commission that the worker was the holder of a clearance or that there was a
current application by the accused person for a clearance,
or
(b)
the accused person was exempted by the
regulations from the requirement to hold a
clearance.
Division 3Additional persons who must
obtain clearances
10Adult persons residing with
authorised carers or approved providers must hold
clearances
(1)
An adult person (other than an authorised carer
or an approved provider of an education and care service) who resides at the
home of an authorised carer or an approved provider of an education and care
service where such a service is provided must hold a working with children
check clearance (of any class) or have made a current application to the
Commission for a clearance.
Maximum penalty: 100 penalty units, or
imprisonment for 2 years, or both.
(2)
The designated agency that authorises the
authorised carer in whose home an adult person resides, or the approved
provider of the education and care service provided at the home where an adult
person resides as referred to in subsection (1), must ensure that the adult
person complies with that subsection.
Maximum penalty: 100 penalty units, in the case
of a corporation, and 50 penalty units in any other
case.
(3)
It is a defence to proceedings for an offence
against subsection (1) if the accused person establishes that the accused
person did not know, at the time the offence was committed, that the home was
the home of an authorised carer or an approved provider of an education or
care service.
(4)
It is a defence to proceedings for an offence
under subsection (1) or (2) if the accused person establishes that:
(a)
at the time of the offence, the adult person had
been living at the home on a regular basis for a period of less than 3 weeks,
or
(b)
the adult person was exempted by the regulations
from the requirement to hold a clearance.
(5)
For the purposes of the application of this Act
(other than section 9) to an adult person required by this section to hold a
clearance, the designated agency or approved provider referred to in
subsection (2) is to be treated as the employer of the adult
person.
11Potential adoptive
parents
(1)
This section applies to any person who submits an
application under the Adoption Act
2000 to adopt a child.
(2)
The person assessing the application under that
Act may request a person to whom this section applies to be screened by the
Commission as if the person were an applicant for a working with children
check clearance of any class.
(3)
The Commission is to treat such a request as if
the person had applied for a clearance for child-related
work.
Part 3Working with children check
clearances
Division 1Classes of
clearances
12Classes of
clearances
(1)
There are to be the following classes of working
with children check clearances:
(a)
volunteer—authorising workers to engage in
unpaid child-related work,
(b)
non-volunteer—authorising workers to engage
in paid and unpaid child-related work.
(2)
Despite section 8, the holder of a volunteer
clearance may engage in paid child-related work if the person has been engaged
in that work for a period of 30 consecutive days or
less.
Division 2Applications for
clearances
13Applications for
clearances
(1)
A person may apply to the Commission for a
working with children check clearance.
(2)
An application must:
(a)
be in the form approved by the Commission,
and
(b)
be accompanied by any other information required
by the Commission, and
(c)
specify the class of clearance applied
for.
(3)
The approved form must provide for the
authorisation by the applicant of, and the consent by the applicant to, the
following in connection with the application or any application under Part 4
and at any time while a clearance is in force:
(a)
the conduct of a criminal record check in respect
of the applicant,
(b)
the disclosure of the applicant’s criminal
history,
(c)
other inquiries about the applicant relevant to
the application or clearance,
(d)
without limiting paragraphs (b) and (c),
disclosure of information about the applicant relevant to whether the
applicant may be subject to an assessment
requirement.
(4)
The regulations may:
(a)
prescribe the fee payable for an application and
the manner in which it is to be paid, and
(b)
require proof of identity to be provided by an
applicant for a clearance in the manner prescribed by the regulations or
approved by the Commission.
(5)
An applicant may, at any time before the final
determination of an application (including after receipt of notice of a
proposed refusal), withdraw the application by notice in writing to the
Commission.
Division 3Risk assessment of applicants
and holders
14Assessment
requirements
A person is subject to an assessment requirement under this
Act if any of the matters specified in Schedule 1 apply to the
person.
15Assessment of applicants and
holders
(1)
The Commission must conduct a risk assessment of
an applicant for a working with children check clearance, or the holder of a
clearance, to determine whether the applicant or holder poses a risk to the
safety of children if the Commission becomes aware that the applicant or
holder is subject to an assessment requirement.
(2)
The Commission may conduct a risk assessment of
the holder of a clearance if the Commission becomes aware that the decision to
grant the clearance was based on wrong or incomplete
information.
(3)
Subsections (1) and (2) do not limit the
circumstances in which the Commission may conduct a risk assessment of an
applicant or holder.
(4)
In making an assessment, the Commission may
consider the following:
(a)
the seriousness of any matters that caused the
assessment in relation to the person,
(b)
the period of time since those matters occurred
and the conduct of the person since they occurred,
(c)
the age of the person at the time the matters
occurred,
(d)
the age of each victim of any relevant offence or
conduct at the time it occurred and any matters relating to the vulnerability
of the victim,
(e)
the difference in age between the victim and the
person and the relationship (if any) between the victim and the
person,
(f)
whether the person knew, or could reasonably have
known, that the victim was a child,
(g)
the person’s present
age,
(h)
the seriousness of the person’s total
criminal record and the conduct of the person since the matters
occurred,
(i)
the likelihood of any repetition by the person of
the offences or conduct or of any other matters that caused the assessment and
the impact on children of any such repetition,
(j)
any information given in, or in relation to, the
application,
(k)
any other matters that the Commission considers
necessary.
(5)
The Commission may, but is not required to,
notify the holder of a clearance in writing if the Commission decides to
conduct a risk assessment of the holder.
16Request for further
information
(1)
The Commission may, by notice in writing to an
applicant for a working with children check clearance or the holder of a
clearance, request the applicant or holder to provide further information
about an offence or other matter related to the application or
clearance.
(2)
The Commission may terminate an application for a
clearance if the applicant fails, without reasonable excuse, to provide the
further information within 6 months of the request being made and the
Commission has not withdrawn the request.
17Interim
bars
(1)
The Commission may, at any time after receiving
an application for a working with children check clearance or commencing an
assessment of an applicant for or holder of a clearance, determine that the
applicant or holder is subject to an interim
bar on engaging in child-related work.
(2)
The Commission may make a determination under
this section if it is of the opinion that it is likely that there is a risk to
the safety of children if the applicant or holder engages in child-related
work pending the determination of the application or
assessment.
(3)
The Commission must, as soon as practicable after
imposing an interim bar, notify in writing the applicant or holder, and any
employer or proposed employer of the applicant or holder in child-related work
(if known to the Commissioner), that the applicant or holder is subject to an
interim bar on engaging in child-related work.
(4)
An interim bar ceases to have effect:
(a)
on notification in writing by the Commission to
the applicant or holder that the interim bar is revoked,
or
(b)
in the case of an applicant for a clearance, if
the applicant is granted a clearance, or
(c)
12 months after the interim bar takes
effect,
whichever occurs first.
Division 4Determination of applications
for clearances
18Determination of applications
for clearances
(1)
The Commission must not grant a working with
children check clearance to the following persons (disqualified persons):
(a)
a person convicted before, on or after the
commencement of this section of an offence specified in Schedule 2, if the
offence was committed as an adult,
(b)
a person against whom proceedings for any such
offence have been commenced, if the offence was committed as an adult, pending
determination of the proceedings for the offence.
(2)
The Commission must grant a clearance to a person
who is subject to a risk assessment under Division 3 unless the Commission is
satisfied that the person poses a risk to the safety of
children.
(3)
The Commission must grant a clearance to a person
if it is satisfied that the person is not a disqualified person and the person
is not subject to a risk assessment under Division 3.
19Notice of proposed refusal of
application
(1)
If the Commission proposes not to grant a working
with children check clearance to a person, the Commission must notify the
person in writing of the proposed decision and that the person may make a
submission to the Commission within the period specified in the
notice.
(2)
The Commission must consider any submission made
by an applicant within that period before finally deciding the
application.
(3)
This section does not apply to an application for
a clearance that is made by a disqualified person.
20Notice of final decision
granting or refusing clearance
(1)
The Commission must notify the applicant in
writing of the Commission’s decision to grant or refuse to grant a
working with children check clearance.
(2)
Notice of a decision to grant a clearance must
include the working with children check number.
(3)
Notice of a decision not to grant a clearance
must set out the reasons for the refusal and the right to seek a review under
Part 4.
(4)
The Commission must notify the employer or
proposed employer of an applicant in writing of the refusal of an application
for a clearance, if the employer or proposed employer is known to the
Commission.
21Embargo on further
applications after refusal
(1)
A person who is refused a working with children
check clearance is not entitled to make a further application for a
clearance:
(a)
until 5 years after the date notice of the
refusal was given to the person, or
(b)
unless there has been a change of circumstances
under which a further early application is permitted under this
section.
(2)
A further early application is permitted if any
of the following occurs:
(a)
proceedings that were pending at the date of the
refusal are withdrawn or dealt with without the person being found guilty of
the offence,
(b)
a finding of guilt is quashed or set aside after
the date of the refusal,
(c)
a finding the subject of an assessment
requirement is quashed or set aside or otherwise expressly or impliedly ceases
to have effect after the date of the refusal,
(d)
the Commission permits a person to make such an
application.
Division 5Duration and termination of
clearances
22Duration of
clearances
(1)
A working with children check clearance ceases to
have effect 5 years after the date it is granted, unless it is sooner
cancelled or surrendered.
(2)
The holder of a clearance may apply for a new
clearance at any time within the period beginning 3 months before the expiry
of the clearance.
23Cancellation of
clearances
(1)
The Commission must cancel the working with
children check clearance of a person if the Commission becomes aware that the
person is a disqualified person or the Commission is satisfied that the person
poses a risk to the safety of children.
(2)
The Commission must notify the holder of the
clearance in writing of the Commission’s decision to cancel the
clearance.
(3)
Notice of a decision to cancel a clearance must
set out the reasons for the cancellation and the right to seek a review under
Part 4.
(4)
The Commission must notify the employer of the
person in writing of the cancellation of the clearance, if the employer is
known to the Commission.
Note—
The holder of a clearance may also be made
subject to an interim bar (see section 17).
24Surrender of
clearances
(1)
The holder of a working with children check
clearance may, at any time, notify the Commission in writing that the holder
wishes to surrender the clearance.
(2)
The Commission must cancel the clearance on
receiving the notice.
(3)
The Commission must notify the employer of the
person concerned in writing of the cancellation of the clearance, if the
employer is known to the Commission.
Division 6Working with children
register
25Working with children
register
(1)
The Commission must establish a working with
children register.
(2)
The register must contain the following:
(a)
particulars of applications for working with
children check clearances, including the application number and the status of
the applications,
(b)
particulars of persons holding clearances,
including the class and expiry date of the clearances and their working with
children check numbers.
(3)
The register is to be maintained in the manner
and form approved by the Commission.
(4)
The Commission must ensure that information kept
on the register is accurate and up-to-date.
(5)
The regulations may provide for information on
the register to be made publicly available in accordance with the
regulations.
Part 4Reviews and
appeals
26No appeal in certain
cases
A person may not make an application under this
Part:
(a)
if the person has been convicted of the murder of
a child, or
(b)
if the person’s application for a working
with children check clearance has been refused wholly or partly on the grounds
that the person has been charged with an offence and proceedings related to
that offence have not been finally determined.
27Applications to Administrative
Decisions Tribunal for reviews of clearance decisions
(1)
A person who has been refused a working with
children check clearance by the Commission may apply to the Tribunal for a
review of the decision within 28 days after notice of the decision was given
to the person.
(2)
A person whose clearance is cancelled by the
Commission may apply to the Tribunal for a review of the decision within 28
days after notice of the decision was given to the
person.
(3)
A person who is subject to an interim bar imposed
by the Commission may apply to the Tribunal for a review of the decision, but
only if the interim bar has been in force for more than 6
months.
(4)
An applicant must fully disclose to the Tribunal
any matters relevant to the application.
(5)
The Tribunal may not award
costs.
(6)
An appeal lies on a question of law to the
Supreme Court by any party to the proceedings.
(7)
Section 53 of the Administrative
Decisions Tribunal Act 1997 does not apply to a decision
that may be reviewed by the Tribunal under this section.
28Orders relating to
disqualified and ineligible persons
(1)
The Tribunal may, on the application of a
disqualified person, make an order declaring that the person is not to be
treated as a disqualified person for the purposes of this Act in respect of an
offence specified in the order (an enabling
order). Any such order has effect according to its
tenor.
(2)
The Tribunal may, on the application of a person
who is not eligible to apply for a clearance because the person has been
previously refused a clearance, make an order declaring that the person is to
be treated as a person who is eligible to apply for a clearance (an enabling
order). Any such order has effect according to its
tenor.
(3)
A disqualified person may make an application
under this section only if:
(a)
the person has been refused a working with
children check clearance, or
(b)
the person’s clearance has been
cancelled,
because the person is a disqualified
person.
(4)
The Commission is to be a party to any
proceedings for an order under this section and may make submissions in
opposition to or support of the making of the order.
(5)
An applicant must fully disclose to the Tribunal
any matters relevant to the application.
(6)
If the Tribunal makes an enabling order, the
Tribunal may order the Commission to revoke an interim bar or to grant the
person a clearance.
(7)
In any proceedings where an enabling order is
sought, it is to be presumed, unless the applicant proves to the contrary,
that the applicant poses a risk to the safety of
children.
(8)
An enabling order may not be made subject to
conditions.
(9)
An appeal lies on a question of law to the
Supreme Court by any party to the proceedings.
29Further review of persons who
obtain enabling orders
(1)
The Commission may apply to the Tribunal to
revoke or vary an enabling order made by the Tribunal.
(2)
The Tribunal may:
(a)
revoke an enabling order, if it is satisfied, on
the basis of fresh evidence provided by the Commission, that the person the
subject of the order poses a risk to the safety of children,
or
(b)
confirm an enabling order, if it is satisfied
that the person is not likely to pose such a risk.
(3)
The Tribunal may consider fresh evidence provided
by the Commission.
(4)
An appeal lies to the Supreme Court by any party
to the proceedings.
30Determination of applications
and other matters
(1)
The Tribunal must consider the following in
determining an application under this Part:
(a)
the seriousness of the offences with respect to
which the person is a disqualified person or any matters that caused a refusal
of a clearance or imposition of an interim bar,
(b)
the period of time since those offences or
matters occurred and the conduct of the person since they
occurred,
(c)
the age of the person at the time the offences or
matters occurred,
(d)
the age of each victim of any relevant offence or
conduct at the time they occurred and any matters relating to the
vulnerability of the victim,
(e)
the difference in age between the victim and the
person and the relationship (if any) between the victim and the
person,
(f)
whether the person knew, or could reasonably have
known, that the victim was a child,
(g)
the person’s present
age,
(h)
the seriousness of the person’s total
criminal record and the conduct of the person since the offences
occurred,
(i)
the likelihood of any repetition by the person of
the offences or conduct and the impact on children of any such
repetition,
(j)
any information given by the applicant in, or in
relation to, the application,
(k)
any other matters that the Commission considers
necessary.
(2)
On an application under section 28 or 29, the
Tribunal may, by order, stay the operation of a determination by the
Commission under this Act relating to the applicant pending the determination
of the matter.
Note—
Division 2 of Part 3 of Chapter 5 of the Administrative Decisions Tribunal Act
1997 enables a decision the subject of an application
under section 27 of this Act to be stayed by the
Tribunal.
(3)
Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act
1997 does not apply in respect of a decision of the
Tribunal under this Part.
Part 5Provision of
information
31Powers of Commission to compel
production of information
(1)
The Commission may, by notice in writing, require
any government agency to provide the Commission with information (including
documents) relevant to an assessment of whether a person poses a risk to the
safety of children.
(2)
A notice under subsection (1) may be given for
the purposes of:
(a)
preparing submissions to the Tribunal under this
Act or section 16 of the Child Protection (Offenders
Registration) Act 2000, or
(b)
determining an application for a working with
children check clearance or an assessment of an applicant or the holder of a
clearance.
(3)
A government agency to which any such notice is
given is by this section authorised and required to provide the Commission
with the information sought by the notice.
(4)
The Commission may, by notice in writing, request
a person other than a government agency to provide the Commission with a
statement setting out information specified by the notice relevant to an
assessment of whether a person poses a risk to the safety of children for the
purposes of this Act.
(5)
A person other than a government agency to whom
any such request is given is by this section authorised to provide the
Commission with the information requested.
(6)
A notice under this section may specify a day on
or before which the notice is to be complied with.
(7)
If documents are given to the Commission under
this section, the Commission:
(a)
may take possession of, and make copies of or
take extracts from, the documents, and
(b)
may keep possession of the documents for such
period as is necessary for the purposes of preparing the submission or
considering an application, and
(c)
during that period must permit them to be
inspected at all reasonable times by the persons who would be entitled to
inspect them if they were not in the possession of the
Commission.
32Incidental disclosure of
information by DPP authorised
(1)
The Director of Public Prosecutions is, on
receipt of a notice under section 31, authorised to disclose to the Commission
information or other documents that may contain information in addition to the
information required by the notice, whether or not that information or those
documents are subject to legal professional privilege or other restrictions on
disclosure.
(2)
This section has effect despite any other Act or
law.
33Notification of offences and
other information
(1)
The Commissioner of Police is authorised at any
time, in accordance with this Part and the regulations, to disclose (or
arrange for a member of the NSW Police Force to disclose) to the Commission
the following information:
(a)
information relating to any matter that may cause
a person to be a disqualified person or result in an assessment requirement
affecting a person,
(b)
information relating to the criminal history of a
person, including (but not limited to) information about offences that cause
or may cause the person to be a disqualified person or result in an assessment
requirement affecting the person,
(c)
without limiting paragraph (a) or (b),
information relating to the circumstances of an offence or other matter
disclosed under this section.
(2)
Information that may be disclosed under this
section includes:
(a)
information relating to spent convictions,
despite anything to the contrary in the Criminal Records
Act 1991, and
(b)
information relating to criminal charges, whether
or not heard, proven, dismissed, withdrawn or discharged,
and
(c)
information relating to offences, despite
anything to the contrary in section 579 of the Crimes Act
1900.
(3)
This section does not limit the persons to whom,
or the circumstances in which, information relating to the criminal history,
including the criminal record, of persons may be disclosed apart from this
Act.
(4)
Information about a person’s criminal
history may be disclosed under this Act whether or not the information relates
to events that occurred when the person was under the age of 18
years.
34Notification of information
relating to criminal history for interstate child-related work
screening
(1)
The Commissioner of Police may disclose (or
arrange for a member of the NSW Police Force to disclose) information relating
to any criminal history of persons to the following persons for the purposes
of interstate child-related work screening:
(a)
CrimTrac,
(b)
a police force or service of the Commonwealth or
another State or Territory,
(c)
an approved interstate screening
agency.
(2)
A person to whom information is disclosed may
disclose that information to an approved interstate screening agency for the
purposes of interstate child-related work screening undertaken by the
agency.
(3)
The Commissioner of Police may disclose (or
arrange for a member of the NSW Police Force to disclose) to an approved
interstate screening agency, at the request of the agency, information
relating to the circumstances of an offence or alleged offence disclosed under
this section for the purposes of interstate child-related work
screening.
(4)
Information that may be disclosed under this
section includes:
(a)
information relating to convictions, including
spent convictions, quashed convictions and offences for which a pardon has
been given, despite anything to the contrary in the Criminal Records Act
1991,
(b)
information relating to criminal charges, whether
heard or not heard, proven, dismissed, withdrawn or
discharged,
(c)
information relating to offences, despite
anything to the contrary in section 579 of the Crimes Act
1900.
(5)
This section does not limit the persons to whom,
or the circumstances in which, information relating to the criminal history,
including the criminal record of, persons may be disclosed apart from this
Act.
(6)
In this section:
approved
interstate screening agency means:
(a)
a person or body prescribed by the regulations,
or
(b)
a body that is authorised under a law of the
Commonwealth, another State or a Territory to conduct interstate child-related
work screening and is approved by the Minister for the purposes of this
section.
interstate child-related work
screening means using information about persons who work, or
seek to work, with children in a way that is authorised or required under a
law of the Commonwealth, another State or a Territory, for the purpose of
estimating the risk to the safety of children posed by any such person if
working with children.
35Notification by reporting
bodies of conduct constituting assessment requirement
trigger
(1)
It is the duty of a reporting body to notify the
Commission of the name and other identifying particulars of any child-related
worker against whom the reporting body has made a finding that the worker has
engaged in conduct specified in clause 2 of Schedule 1.
(2)
Notification under this section extends to
findings made before the commencement of this section.
(3)
The regulations may make provision for or with
respect to the following:
(a)
the form of any such
notification,
(b)
the provision by reporting bodies of further
particulars of any such matter, or any potential such matter, if requested by
the Commission,
(c)
the keeping of records by reporting bodies of
information about such matters or potential such matters supplied to the
Commission,
(d)
the amendment or withdrawal of a notification by
a reporting body.
(4)
In this section:
reporting
body means the following:
(a)
a NSW Government agency,
(b)
a Department or public sector agency within the
meaning of the Public Sector Employment and
Management Act 2002,
(c)
a registration or other licensing authority
constituted under an Act,
(d)
a designated government agency or designated
non-government agency within the meaning of Part 3A of the Ombudsman Act 1974 that has been granted
an exemption under section 25CA of that Act,
(e)
any other employer or professional or other body
that supervises the conduct of an employee prescribed by the regulations for
the purposes of this section.
36Enforcement
notices
(1)
The Commission may, by notice in writing served
on a reporting body or an officer of a reporting body, require the reporting
body to comply with obligations of the reporting body under section 35 within
the period specified in the notice.
(2)
The Commission may serve a notice under this
section if it is of the opinion that the reporting body has failed to comply
with any provision of section 35.
(3)
The notice must set out the reasons for the
notice being given.
(4)
The period specified in a notice is to be not
less than 28 days.
(5)
The Commission may revoke a notice at any
time.
(6)
A person who fails, without reasonable excuse, to
comply with a notice in force under this section is guilty of an
offence.
Maximum penalty: 100 penalty units, in the case
of a corporation, or 50 penalty units in any other case.
(7)
In any proceedings for an offence against this
section, the onus of proving that a person had a reasonable excuse lies with
the defendant.
(8)
Nothing in this section prevents the Commission
from contacting reporting bodies for the purpose of informing them of their
obligations under this Act or requesting any information that reporting bodies
are required to provide to the Commission under this
Act.
Part 6Functions of
Commission
37Database functions of
Commission
The Commission may exercise the following
functions:
(a)
collecting and maintaining a database of orders
by the Tribunal under this Act, and other orders and proceedings completed
against a person that result in assessment requirements, including updating,
correcting and removing entries on the database,
(b)
collecting and maintaining a database of
notifications to the Commission of matters that constitute or might constitute
the basis of an assessment requirement, including updating, correcting and
removing entries on the database,
(c)
collecting and maintaining a database of
employers who seek information about working with children check clearances
for child-related work purposes, including updating, correcting and removing
entries on the database.
38Commission’s public
awareness and advice functions
The Commission may promote public awareness of
and provide advice on requirements for working with children check clearances
and related matters concerning child-related work.
39Commission’s monitoring
and auditing functions
(1)
The Commission is to monitor and audit compliance
with the requirements of this Act and the regulations.
(2)
The Minister may give the Commission a written
direction on the exercise of its functions under this section, and the
Commission is to comply with the direction.
40Power to compel production of
information for monitoring or auditing purposes
(1)
For the purposes of exercising its monitoring or
auditing functions under this Act, the Commission may, by notice in writing,
require an officer of a government agency, an employer or a body that
supervises, represents or has other functions with respect to an employer to
do any one or more of the following:
(a)
to provide to the Commission, on or before a day
specified in the notice, a statement setting out such information as is so
specified relating to the matters being monitored or
audited,
(b)
to provide to the Commission, on or before a day
specified in the notice, such documents as are so specified relating to the
matters being monitored or audited.
(2)
A person who:
(a)
fails, without reasonable excuse, to comply with
a requirement of a notice under this section, or
(b)
provides the Commission with information that the
person knows is false or misleading in a material
particular,
is guilty of an offence.
Maximum penalty: 100 penalty units, in the case
of a corporation, and 50 penalty units in any other
case.
(3)
A notice may specify the manner in which a
statement or documents may be given to the Commission.
(4)
If documents are given to the Commission under
this section, the Commission:
(a)
may take possession of, and make copies of or
take extracts from, the documents, and
(b)
may keep possession of the documents for such
period as is necessary for the purposes of exercising its monitoring or
auditing functions, and
(c)
during that period must permit them to be
inspected at all reasonable times by the persons who would be entitled to
inspect them if they were not in the possession of the
Commission.
(5)
In any proceedings for an offence against this
section, the onus of proving that a person had a reasonable excuse lies with
the defendant.
Part 7Miscellaneous
41Act to bind
Crown
This Act binds the Crown in right of New South
Wales and, in so far as the legislative power of the Parliament of New South
Wales permits, the Crown in all its other capacities.
42Effect of Act on other rights
and procedures
(1)
An assessment under this Act or interstate
child-related work screening (as referred to in section 34) may be conducted,
and information disclosed or obtained, in accordance with this Act despite any
other Act or law to the contrary.
(2)
Nothing in this Act affects any statutory right
that an employee may have in relation to employment or termination of
employment.
(3)
However, any court or tribunal exercising
jurisdiction with respect to any such right must have regard to the results of
any determination of an application for a working with children check
clearance or assessment carried out under this Act in connection with the work
concerned and the welfare of children as the paramount consideration in that
determination or assessment.
(4)
Nothing in this Act affects the operation of Part
2 of Chapter 9 of the Health Services Act
1997.
(5)
This section is subject to section
47.
43Protection of persons relating
to child-related work
(1)
Anything done or omitted to be done by a person
in good faith and with reasonable care:
(a)
for the purpose of the determination of an
application for a working with children check clearance or an assessment of
the holder of a clearance, or
(b)
for the purpose of exercising a function under
this Act,
does not subject the person to any action, liability,
claim or demand.
(2)
Without limiting subsection (1):
(a)
a person has qualified privilege in proceedings
for defamation in respect of anything done or omitted to be done by the person
for the purposes of the determination of an application for a clearance or an
assessment or otherwise exercising a function under this Act,
and
(b)
damages or compensation (whether for breach of
contract or otherwise) are not payable in respect of a decision not to grant a
clearance or to cancel a clearance, or to impose an interim bar, as a result
of an assessment carried out in good faith and with reasonable care for the
purposes of this Act or a review application.
(3)
This section does not limit or affect any other
right, privilege or immunity that a person has as a defendant in any
proceedings.
44Evidentiary
certificate
A certificate issued by the Commission that
states that, on a specified date or during a specified period:
(a)
a specified person was or was not the holder of a
working with children check clearance, or
(b)
a specified person had or had not made an
application for a clearance, or
(c)
a clearance was or was not in force,
or
(d)
a specified person was or was not subject to an
interim bar,
is admissible in legal proceedings as evidence of the
matters so stated.
45Unauthorised disclosure or
dishonest collection of information
(1)
A person who discloses any information obtained
by the person in connection with the exercise of functions under this Act or
the regulations is guilty of an offence unless the disclosure:
(a)
is made in good faith for the purposes of the
exercise of a function under this Act or the regulations,
or
(b)
is made with the consent of the person to whom
the information relates, or
(c)
is ordered by a court, or any other body or
person exercising judicial functions, for the purposes of the hearing or
determination by the court, body or person of any matter,
or
(d)
is made with other lawful
excuse.
(2)
A person who dishonestly obtains confidential
information relating to the exercise of functions under this Act or the
regulations is guilty of an offence.
Maximum penalty: 50 penalty units, or
imprisonment for 6 months, or both.
46Obtaining information on
disciplinary matters under Government Information (Public
Access) Act 2009
(1)
A person against whom a finding referred to in
clause 2 of Schedule 1 has been made is, subject to this section, entitled to
apply for access under the Government Information (Public
Access) Act 2009 to any information about the finding.
That Act applies to the determination of any such application for
access.
(2)
Any provision of that Act relating to fees or
charges payable by applicants does not apply to such an application for
access.
(3)
The provisions of the Government Information (Public Access) Act
2009 apply for the purposes of this section whether or not
the agency is an agency to which those provisions apply.
(4)
The regulations under this Act may modify any
provisions of that Act in its application under this
section.
47Relationship with other Acts
and laws
(1)
A prohibition on employment under this Act
prevails to the extent of any inconsistency between it and any other Act or
law.
(2)
The Industrial Relations Commission or any other
court or tribunal does not have jurisdiction under any Act or law to order the
re-instatement or re-employment of a person or worker contrary to a
prohibition on employment imposed by this Act, or to order the payment of
damages or compensation for any removal from employment of a person from
employment prohibited under this Act.
48Information about old offences
may be given
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 Schedule 1 or 2.
49Nature of proceedings for
offences
Proceedings for an offence under this Act or the
regulations may be dealt with summarily before the Local
Court.
50Offences by
corporations
(1)
If a corporation contravenes, whether by act or
omission, any provision of this Act, each person who is a director of the
corporation or who is concerned in the management of the corporation is taken
to have contravened the same provision if the person knowingly authorised or
permitted the contravention.
(2)
Subsection (1) does not apply in respect of a
contravention of a provision of the regulations that is declared by the
regulations to be an excluded provision for the purposes of this
section.
(3)
A person may be proceeded against and convicted
under a provision pursuant to subsection (1) whether or not the corporation
has been proceeded against or has been convicted under the
provision.
(4)
Nothing in this section affects any liability
imposed on a corporation for an offence committed by the corporation under
this Act.
(5)
This section applies only to offences against
Part 2.
51Service of
documents
(1)
A document that is authorised or required by this
Act or the regulations to be given to any person may be given by:
(a)
in the case of a natural person:
(i)
delivering it to the person personally,
or
(ii)
sending it by post to the address specified by
the person for the giving or service of documents or, if no such address is
specified, the residential or business address of the person last known to the
person giving or serving the document, or
(iii)
sending it by facsimile transmission to the
facsimile number of the person or by email to the email address of the person,
or
(b)
in the case of a body corporate:
(i)
leaving it with a person apparently of or above
the age of 16 years at, or by sending it by post to, the head office, a
registered office or a principal office of the body corporate or to an address
specified by the body corporate for the giving or service of documents,
or
(ii)
sending it by facsimile transmission to the
facsimile number of the body corporate or by email to the email address of the
body corporate.
(2)
Notice of a working with children check number
may be given to a person by sending it by SMS message to the person’s
last known mobile telephone number.
(3)
Nothing in this section affects the operation of
any provision of a law or of the rules of a court authorising a document to be
served on a person in any other manner.
52Regulations
(1)
The Governor may make regulations, not
inconsistent with this Act, for or with respect to any matter that by this Act
is required or permitted to be prescribed or that is necessary or convenient
to be prescribed for carrying out or giving effect to this
Act.
(2)
In particular, the regulations may make provision
for or with respect to the following:
(a)
the information to be provided by the Commission
to applicants for or holders of working with children check
clearances,
(b)
the exemption of persons or classes of persons
from all or any requirements of this Act, unconditionally or subject to
conditions.
(3)
The regulations may amend Schedule 1 or Schedule
2.
(4)
The regulations may create offences punishable by
a penalty not exceeding 20 penalty units.
53Review of
Act
(1)
The Minister is to review this Act to determine
whether the policy objectives of the Act remain valid and whether the terms of
the Act remain appropriate for securing those
objectives.
(2)
The review is to be undertaken as soon as
possible after the period of 5 years from the date of assent to this
Act.
(3)
A report on the outcome of the review is to be
tabled in each House of Parliament within 12 months after the end of the
period of 5 years.
Schedule 1Assessment requirement
triggers
1Offences
(1)
Proceedings have been commenced against a
person:
(a)
for an offence specified in clause 1 of Schedule
2, if the offence was committed as a child (whatever the outcome of the
proceedings), or
(b)
for an offence specified in clause 1 of Schedule
2, if the offence was committed as an adult, and the person is not because of
those proceedings a disqualified person.
(2)
Proceedings have been commenced against a person
for any of the following offences (whatever the outcome of those
proceedings):
(a)
an offence involving intentional wounding of or
causing bodily harm to a child by an adult (other than an offence specified in
clause 1 of Schedule 2),
(b)
any sexual offence committed against, with or in
the presence of a child, other than an offence specified in clause 1 of
Schedule 2,
(c)
an offence under section 38 or 38A of the Crimes Act 1900 committed against a
child,
(d)
an offence under section 45 of the Crimes Act 1900 committed against a
child,
(e)
an offence under section 60E of the Crimes Act 1900,
(f)
an offence under section 13 of the Crimes (Domestic and Personal Violence) Act
2007 committed against a child,
(g)
an offence under section 6 of the Prevention of Cruelty to Animals Act
1979.
(3)
Proceedings have been commenced against a person
for any of the following offences (other than where a person has been found
not guilty of the offence concerned):
(a)
an offence under section 43A of the Crimes Act 1900,
(b)
an offence under section 44 of the Crimes Act 1900 committed against a
child,
(c)
an offence under section 227, 228 or 231 of the
Children and Young Persons (Care and Protection) Act
1998,
(d)
an offence under section 530 of the Crimes Act 1900,
(e)
an offence under section 23A, 24 (1A) or (2A) or
25 (1A) of the Drug Misuse and Trafficking Act
1985,
(f)
any other offence, whether under the law of New
South Wales or elsewhere, prescribed by the regulations for the purposes of
this subclause.
(4)
A person has been convicted of an offence under
section 61 of the Crimes Act
1900 committed against a child.
(5)
Subclauses (1), (2), (3) and (4) apply to:
(a)
an offence an element of which is an intention to
commit an offence of a kind listed in those subclauses,
and
(b)
an offence under a law other than a law of New
South Wales that is an offence similar to an offence listed in those
subclauses, and
(c)
an offence of attempting, or of conspiracy or
incitement, to commit an offence listed in those
subclauses,
in the same way that they apply to the offences listed
in those subclauses.
(6)
A person has been convicted of, or proceedings
have been commenced against a person for, offences involving violence or
sexual misconduct (whether or not listed in this Schedule or Schedule 2)
sufficient to indicate a pattern of behaviour that warrants investigation as
to whether it may cause a risk to the safety of
children.
(7)
An offence is not specified for the purposes of
this clause if it was an offence specified in this clause at the time of its
commission and the conduct has ceased to be an offence in New South
Wales.
2Findings of misconduct
involving children
A person has been the subject of a finding by a
reporting body that the person engaged in the following conduct:
(a)
sexual misconduct committed against, with or in
the presence of a child, including grooming of a child,
(b)
any serious physical assault of a
child.
3Application of
Schedule
This Schedule applies to offences and other
matters whether occurring before, on or after the commencement of this
Schedule.
Schedule 2Disqualifying
offences
1Specified
offences
(1)
The following offences are specified:
(a)
murder of a child,
(b)
manslaughter of a child (other than as a result
of a motor vehicle accident),
(c)
an offence involving intentional wounding or
causing grievous bodily harm to a child by an adult who is more than 3 years
older than the victim,
(d)
an offence under section 61B, 61C, 61D, 61E or
61F of the Crimes Act
1900,
(e)
an offence under section 61I, 61J, 61JA, 61K,
61L, 61M, 61N, 61O or 61P of the Crimes Act
1900,
(f)
the common law offence of rape or attempted
rape,
(g)
an offence under section 65A or 66 of the Crimes Act 1900,
(h)
an offence under section 66A, 66B, 66C, 66D,
66EA, 66EB, 66F or 73 of the Crimes Act
1900,
(i)
an offence under section 73 (before its
substitution by the Crimes Amendment (Sexual
Offences) Act 2003), 74 or 76 of the Crimes
Act 1900,
(j)
an offence under section 78A, 78B or 79 of the
Crimes Act 1900,
(k)
an offence under section 78H, 78I, 78K, 78L, 78N,
78O, 78Q or 81 of the Crimes Act
1900,
(l)
an offence under section 80A, 80D or 80E of the
Crimes Act 1900,
(m)
an offence under section 86 of the Crimes Act 1900 where the person against
whom the offence is committed is a child, except where the person found guilty
of the offence was, when the offence was committed or at some earlier time, a
parent or carer of the child,
(n)
an offence under section 91D, 91E, 91F, 91G or
91H of the Crimes Act
1900 (other than an offence committed by a child
prostitute),
(o)
an offence under section 42 or 43 of the Crimes Act 1900,
(p)
an offence under section 91J, 91K or 91L of the
Crimes Act 1900,
(q)
an offence under section 21G of the Summary Offences Act 1988 or section 91M
of the Crimes Act
1900 where the person intended to be observed or filmed
was a child,
(r)
an offence against section 272.8, 272.10 (if it
relates to an underlying offence against section 272.8) or 272.11 of the
Criminal Code of the
Commonwealth,
(s)
an offence against section 272.9, 272.10 (if it
relates to an underlying offence against section 272.9), 272.14 or 272.15 of
the Criminal Code of the
Commonwealth,
(t)
an offence against section 272.18, 272.19 or
272.20 of the Criminal Code of the Commonwealth if it
relates to another offence listed in this Schedule,
(u)
an offence against section 270.6 or 270.7 of the
Criminal Code of the Commonwealth where
the person against whom the offence is committed is a
child,
(v)
an offence against section 233BAB of the Customs Act
1901 of the Commonwealth involving items of child
pornography or of child abuse material,
(w)
an offence against section 471.16, 471.17,
471.19, 471.20 or 471.22 of the Criminal Code of
the Commonwealth,
(x)
an offence against section 471.24, 471.25 or
471.26 of the Criminal Code of the
Commonwealth,
(y)
an offence under section 91H, 578B or 578C (2A)
of the Crimes Act
1900,
(z)
an offence under a law other than a law of New
South Wales that, if committed in New South Wales, would be an offence listed
in this clause,
(aa)
an offence an element of which is an intention to
commit an offence of a kind listed in this clause,
(ab)
an offence of attempting, or of conspiracy or
incitement, to commit an offence of a kind listed in this
clause.
(2)
This clause applies to convictions or proceedings
for offences whether occurring before, on or after the commencement of this
clause.
2Excluded
offences
An offence is not specified for the purposes of
this Schedule if it was an offence specified in this Schedule at the time of
its commission and the conduct has ceased to be an offence in New South
Wales.
Schedule 3Savings, transitional and
other provisions
Part 1General
1Regulations
(1)
The regulations may contain provisions of a
savings or transitional nature consequent on the enactment of this Act or any
Act that amends this Act.
(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 on the NSW
legislation website, 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 this Act
2Definitions
In this Part:
existing
child-related worker means a worker who was engaged in
child-related work immediately before the commencement of Part 2 of this
Act.
existing
employer means the employer of an existing child-related
worker immediately before the commencement of Part 2 of this
Act.
existing
resident means an adult who was residing at the home of an
authorised carer or a provider of an education and care service where foster
care or an education and care service was provided immediately before the
commencement of Part 2 of this Act.
former
provisions means Part 7 of the Commission for Children and Young People Act
1998, as in force immediately before its repeal by this
Act.
3Existing employees and
residents
(1)
An existing child-related worker is not required
to obtain or have a working with children check clearance while the worker
continues in the employment of an existing employer.
Note—
Regulations under clause 5 may provide for the
application of the requirements under this Act to existing child-related
workers and existing residents.
(2)
For the purposes of this clause, a person in the
Government Service or the NSW Health Service is taken to have ceased to be
employed by an existing employer if the person becomes a member of staff of a
Government Department or agency that has a different
ABN.
(3)
An existing resident is not required to obtain or
have a clearance while the resident continues to reside in the place where the
resident resided immediately before the commencement of Part 2 of this
Act.
(4)
This clause does not apply to an existing
child-related worker or an existing resident who was a disqualified person on
the commencement of this clause or who subsequently becomes a disqualified
person.
(5)
This clause does not apply to a person in respect
of work carried out by the person as a self-employed
person.
4Application of Act to existing
self-employed persons
(1)
This clause applies to a person:
(a)
who was engaged in child-related work as a
self-employed person immediately before the commencement of Part 2 of this
Act, and
(b)
who was, immediately before the commencement of
this clause, required to hold a child-related employment
certificate.
(2)
A person to whom this clause applies who held a
child-related employment certificate immediately before the commencement of
this clause is not, until the expiry date of the person’s certificate,
required to comply with Division 2 of Part 2 of this Act in respect of
child-related work undertaken by the person as a self-employed
person.
(3)
A person to whom this clause applies who did not
hold a child-related employment certificate on the commencement of this clause
is not required to comply with Division 2 of Part 2 of this Act in respect of
child-related work undertaken by the person as a self-employed person until
the day prescribed by the regulations for the purposes of this
clause.
(4)
This clause does not apply to a person who was a
disqualified person on the commencement of this clause or who subsequently
becomes a disqualified person.
(5)
In this clause:
child-related employment
certificate means a certificate issued under Part 2 of the
Commission for Children and Young
People Regulation 2009 to a self-employed person in which
the Commission certified that the person was not a prohibited person (within
the meaning of Part 7 of the Commission for Children and Young
People Act 1998).
5Staged implementation of new
scheme
The regulations may make provision for or with
respect to the following:
(a)
the application of this Act (or provisions of
this Act) to classes of existing child-related workers or existing residents,
and other persons who become child-related workers or residents subject to
section 10 on or after the commencement of Part 2 of this Act, on and from a
specified date or dates,
(b)
the obligations of persons who are child-related
workers or such residents pending the application of this Act to those
persons,
(c)
the exemption from this Act (or provisions of
this Act) of, or the application of provisions of this Act to, classes of
persons who are existing child-related workers or existing
residents,
(d)
the application of the former provisions to
existing child-related workers or existing residents, and other persons,
pending the application of provisions of this Act to those
persons.
6Existing prohibited persons
declarations
(1)
This clause applies to a person who is the
subject of an order containing a declaration (in force immediately before the
repeal of the former provisions) by a tribunal under section 33H of the former
provisions that Division 2 of those provisions is not to apply to the person
in respect of a specified offence (an existing
declaration).
(2)
On the application of this Act to a person to
whom this clause applies:
(a)
a person who is the subject of an unconditional
existing declaration is taken to be the subject of an order under Part 4 of
this Act declaring that the person concerned is not to be treated as a
disqualified person in respect of the offence, and
(b)
any other person to whom this clause applies is
to be treated as a disqualified person for the purposes of this
Act.
7Part subject to
regulations
This Part is subject to the
regulations.
Schedule 4Amendment of other
Acts
4.1Children and Young Persons (Care and Protection) Act
1998 No 157
[1]Section 29 Protection of
persons who make reports or provide certain information
Omit paragraph (a) of the definition of reportable conduct in section 29
(6). Insert instead:
(a)
reportable conduct within the meaning of Part 3A
of the Ombudsman Act
1974 or conduct referred to in clause 2 of Schedule 1 to
the Child Protection (Working with Children) Act
2012, or
[2]Section 137 (3),
note
Omit the note. Insert instead:
Note—
See section 10 of the Child
Protection (Working with Children) Act 2012 which requires
adult household members of authorised carers to hold authorisations required
for child-related work.
4.2Commission for Children and Young People Act
1998 No 146
[1]Long
title
Omit “; to provide for safeguards and
impose prohibitions relating to child-related
employment”.
[2]Section 3
Definitions
Omit the definitions of background checking and review
application from section 3 (1).
[3]Section 11 Principal functions
of Commission
Omit section 11 (h1) and (i). Insert
instead:
(i)
to exercise functions relating to persons engaged
in child-related work, including checking, clearance and other functions,
under the Child Protection (Working with
Children) Act 2012,
[4]Section 14A Powers of
Commission for Children and Young People to compel production of
information
Omit the section.
[5]Section 15B Power to compel
production of information for monitoring or auditing
purposes
Omit the section.
[6]Part 7 Child-related
employment
Omit the Part.
[7]Section 48A Protection of
persons relating to child-related employment
Omit the section.
[8]Section 48B Unauthorised
disclosure or dishonest collection of information
Omit the section.
[9]Section 50 Offences by
corporations
Omit the section.
[10]Section 52 Relationship with
other Acts and laws
Omit the section.
[11]Schedule 3 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
any other Act that amends this
Act.
4.3Criminal Records Act 1991 No
8
Section 15 Employment in
certain occupations
Omit section 15 (1A). Insert instead:
(1A)
Section 12 does not apply in relation to an
application by a person for a working with children check clearance under the
Child Protection (Working with Children) Act
2012, or to the assessment of the holder of a clearance
under that Act.
4.4Education Act 1990 No
8
[1]Section 47 Registration
requirements for non-government schools
Omit “Division 2 of Part 7 of the Commission for Children and Young People Act
1998” from section 47 (g) (ii).
Insert instead “Part 2 of the Child Protection (Working with Children) Act
2012”.
[2]Section 47 (g)
(iii)
Omit “Part 7 of the Commission for Children and Young People Act
1998”.
Insert instead “the Child
Protection (Working with Children) Act
2012”.
4.5Education (School Administrative and Support Staff) Act
1987 No 240
[1]Section 32D Suspension of
permanent employees from duty pending certain decisions or on lapsing of
clearance
Omit section 32D (2). Insert instead:
(2)
If a permanent employee:
(a)
is charged with an offence referred to in section
32C, or
(b)
is the subject of an interim bar,
or
(c)
is refused a working with children check
clearance and the period for an application under Part 4 of the Child Protection (Working with Children) Act
2012 has not elapsed or an application has been made under
that Part and has not been determined, or
(d)
is not the holder of a clearance and is eligible
to apply, but has not applied, for a clearance,
the Director-General may suspend the employee from duty
until the employee is notified by the Director-General that the suspension has
been lifted.
[2]Section 32D
(5)
Insert after section 32D (4):
(5)
Words and expressions used in this section have
the same meaning as they have in the Child Protection
(Working with Children) Act 2012.
[3]Part 6A,
heading
Omit “prohibited
persons”.
Insert instead “persons barred from
working with children”.
[4]Section 32I
Definitions
Omit the definitions of child-related employment, Commission and prohibited person and the note to
the section. Insert instead:
unauthorised person means:
(a)
a person whose working with children check
clearance is cancelled, or
(b)
any other person who is required to hold a
clearance but is not the holder of a clearance, other than a person referred
to in section 32D (2) (b)–(d) or a person who is exempt from the
requirement to hold a clearance.
[5]Section 32I
(2)
Insert at the end of section 32I:
(2)
Words and expressions used in this Part have the
same meaning as they have in the Child Protection
(Working with Children) Act 2012.
[6]Section 32J Operation of this
Part
Omit “a prohibited person” from
section 32J (2).
Insert instead “an unauthorised
person”.
[7]Section 32K Termination of
employment of unauthorised persons
Omit “a prohibited person” from
section 32K (1) and where firstly occurring in section 32K (2) (a) and (c) and
(4).
Insert instead “an unauthorised
person”.
[8]Section 32K (1) and
(4)
Omit “child-related employment”
wherever occurring.
Insert instead “child-related
work”.
[9]Section 32K (2) (a) and (c)
and (4)
Omit “a prohibited person” where
secondly occurring.
Insert instead “a
person”.
[10]Section 32K (2)
(b)
Omit the paragraph.
[11]Section 32L Unauthorised
person status to be notified to Director-General
Omit section 32L (1). Insert instead:
(1)
A permanent or temporary employee who becomes an
unauthorised person must immediately report that fact to the
Director-General.
[12]Section 32L
(2)
Omit “has been charged with an offence
referred to in subsection (1), or is a prohibited
person”.
Insert instead “has become an unauthorised
person”.
[13]Section 32L
(4)
Omit the subsection.
[14]Section
32M
Omit the section. Insert instead:
32MReview of failure to obtain
authorisation or of unauthorised status
(1)
If an application is made by a person under Part
4 of the Child Protection (Working with
Children) Act 2012, the Administrative Decisions Tribunal
is to notify the Director-General of the application if it appears to the
Tribunal that the person is a member (or former member) of the school
administrative and support staff.
(2)
The Director-General is entitled to appear and be
represented at any proceedings arising out of any such
application.
[15]Section 32N Effect of person
obtaining working with children check clearance
Omit section 32N (1) and the note to the
subsection. Insert instead:
(1)
This section applies to a person who is dismissed
under section 32K and who subsequently obtains a working with children check
clearance.
[16]Section 32N
(2)
Omit “ceases to be a prohibited person
because the conviction for the offence in respect of which the person is a
prohibited person is overturned by a court on appeal”.
Insert instead “is granted a clearance
(other than as referred to in subsection (3))”.
[17]Section 32N (3)
(a)
Omit the paragraph. Insert instead:
(a)
the person is granted a clearance after an order
under Part 4 of the Child Protection (Working with
Children) Act 2012, and
[18]Section 32N
(7)
Omit the subsection.
[19]Section 32O Disciplinary
action may be taken against person who ceases to be an unauthorised
person
Omit “a prohibited person” wherever
occurring.
Insert instead “an unauthorised
person”.
[20]Section 32R Protection for
exercise of functions in connection with Part
Omit “Commission for
Children and Young People Act 1998” from section 32R
(6).
Insert instead “Child
Protection (Working with Children) Act
2012”.
[21]Section 32S Transitional
provision
Omit the section.
[22]Schedule 1 Savings,
transitional and other provisions
Insert at the end of clause 1 (1):
any other Act that amends this
Act.
4.6Industrial Relations Act 1996 No
17
Section 164A Powers of
Commission as to disclosure of matters before the
Commission
Omit section 164A (3). Insert instead:
(3)
The Commission (other than in Court Session) may
make any non-disclosure order if it is satisfied that it is necessary to do so
in the interests of justice.
4.7Institute of Teachers Act 2004 No
65
Section 24 General grounds for
revocation of accreditation
Omit section 24 (2) (a). Insert instead:
(a)
the authority is satisfied that the person is an
unauthorised person within the meaning of section 93R of the Teaching Service Act
1980,
4.8Ombudsman Act 1974 No
68
Section
25DA
Insert after section 25D:
25DADisclosures to
CCYP
The Ombudsman may disclose the following
information to the Commission for Children and Young People:
(a)
information about an employee of a designated
government or non-government agency that the Ombudsman believes may cause that
employee to be a disqualified person under the Child Protection
(Working with Children) Act 2012, or to be subject to an
assessment requirement under that Act,
(b)
information about exemptions under section
25CA,
(c)
information about reports of investigations into
reportable conduct by the Ombudsman or a designated government or
non-government agency.
4.9Parliamentary Electorates and Elections Act 1912
No 41
[1]Section 81K
Definitions
Omit the definition of relevant
apprehended violence order from section 81K (1). Insert
instead:
relevant
apprehended violence order means (subject to subsection (5))
a final apprehended violence order made under the Crimes
(Domestic and Personal Violence) Act 2007, or a final
order made under Part 15A of the Crimes Act
1900 before its repeal, being an order made on the
application of a police officer or other public official for the protection of
a child from sexual activity or acts of indecency.
[2]Section 81K
(5)
Insert after section 81K (4):
(5)
The following are not relevant apprehended
violence orders:
(a)
an apprehended violence order made by a court
before 3 July 1995 under Part 15A of the Crimes Act
1900,
(b)
an external protection order (within the meaning
of section 562RA of the Crimes Act
1900) made before 3 July 1995,
(c)
an external protection order (within the meaning
of Part 13 of the Crimes (Domestic and Personal
Violence) Act 2007) that is not registered under that
Part.
[3]Section 81N Duties of CYP
Commission with respect to child-related conduct
declarations
Omit section 81N (2) (a). Insert instead:
(a)
may exercise any of the functions it has under
the Child Protection (Working with Children) Act
2012, and
[4]Section 81N (2)
(b)
Omit “by that
Act”.
[5]Section 81N (2)
(b)
Omit “Part”. Insert instead
“Act”.
4.10Teaching Service Act 1980 No
23
[1]Section 93L Suspension of
officers from duty pending certain decisions or on lapsing of working with
children check clearance
Omit section 93L (2). Insert instead:
(2)
If an officer:
(a)
is charged with an offence referred to in section
93K, or
(b)
is the subject of an interim bar,
or
(c)
is refused a working with children check
clearance and the period for an application under Part 4 of the Child Protection (Working with Children) Act
2012 has not elapsed or an application has been made under
that Part and has not been determined, or
(d)
is not the holder of a clearance and is eligible
to apply, but has not applied, for a clearance,
the Director-General may suspend the officer from duty
until the officer is notified by the Director-General that the suspension has
been lifted.
[2]Section 93L
(5)
Insert after section 93L (4):
(5)
Words and expressions used in this section have
the same meaning as they have in the Child Protection
(Working with Children) Act 2012.
[3]Part 4B,
heading
Omit “prohibited
persons”.
Insert instead “persons barred from
working with children”.
[4]Section 93R
Definitions
Omit the definitions of child-related employment, Commission and prohibited person and the note to
the section. Insert instead:
unauthorised person means:
(a)
a person whose working with children check
clearance is cancelled, or
(b)
any other person who is required to hold but is
not the holder of a clearance, other than a person referred to in section 93L
(2) (b)–(d) or a person who is exempt from the requirement to hold a
clearance.
[5]Section 93R
(2)
Insert at the end of section 93R:
(2)
Words and expressions used in this Part have the
same meaning as they have in the Child Protection
(Working with Children) Act 2012.
[6]Section 93S Operation of this
Part
Omit “a prohibited person” from
section 93S (2).
Insert instead “an unauthorised
person”.
[7]Section 93T Termination of
employment of unauthorised persons
Omit “a prohibited person” from
section 93T (1) and where firstly occurring in section 93T (2) (a) and (c) and
(4).
Insert instead “an unauthorised
person”.
[8]Section 93T (1) and
(4)
Omit “child-related employment”
wherever occurring.
Insert instead “child-related
work”.
[9]Section 93T (2) (a) and (c)
and (4)
Omit “a prohibited person” where
secondly occurring.
Insert instead “a
person”.
[10]Section 93T (2)
(b)
Omit the paragraph.
[11]Section 93U Unauthorised
person status to be notified to Director-General
Omit section 93U (1). Insert instead:
(1)
An officer or temporary employee who becomes an
unauthorised person must immediately report that fact to the
Director-General.
[12]Section 93U
(2)
Omit “has been charged with an offence
referred to in subsection (1), or is a prohibited
person”.
Insert instead “has become an unauthorised
person”.
[13]Section 93U
(4)
Omit the subsection.
[14]Section
93V
Omit the section. Insert instead:
93VReview of failure to obtain
authorisation or of unauthorised status
(1)
If an application is made by a person under Part
4 of the Child Protection (Working with
Children) Act 2012, the Administrative Decisions Tribunal
is to notify the Director-General of the application if it appears to the
Tribunal that the person is an officer or temporary employee or former officer
or temporary employee.
(2)
The Director-General is entitled to appear and be
represented at any proceedings arising out of any such
application.
[15]Section 93W Effect of person
obtaining working with children check clearance
Omit section 93W (1) and the note to that
subsection. Insert instead:
(1)
This section applies to a person who is dismissed
under section 93T and who subsequently obtains a working with children check
clearance.
[16]Section 93W
(2)
Omit “ceases to be a prohibited person
because the conviction for the offence in respect of which the person is a
prohibited person is overturned by a court on appeal”.
Insert instead “is granted a clearance
(other than as referred to in subsection (3))”.
[17]Section 93W (3)
(a)
Omit the paragraph. Insert instead:
(a)
the person is granted a clearance after an order
under Part 4 of the Child Protection (Working with
Children) Act 2012, and
[18]Section 93W
(7)
Omit the subsection.
[19]Section 93X Disciplinary
action may be taken against person who ceases to be unauthorised
person
Omit “a prohibited person” wherever
occurring.
Insert instead “an unauthorised
person”.
[20]Section 93ZA Protection for
exercise of functions in connection with Part
Omit “Commission for
Children and Young People Act 1998” from section
93ZA (6).
Insert instead “Child
Protection (Working with Children) Act
2012”.
[21]Section 93ZB Transitional
provision
Omit the section.
[22]Schedule 3 Savings and
transitional provisions
Insert at the end of clause 2 (1):
any other Act that amends this
Act.
4.11Young
Offenders Act 1997 No 54
Section 68 Interventions not
to be disclosed as criminal history
Omit section 68 (2) (d). Insert instead:
(d)
an application by a person for a working with
children check clearance, the assessment of a person or an application under
Part 4 of the Child Protection (Working with
Children) Act 2012.
Historical
notes
Table of amending
instruments
Child Protection (Working with
Children) Act 2012 No 51. Assented to 27.6.2012. Date of
commencement: not in force.