Part 5Provision of
information
31Powers of Children’s
Guardian to compel production of information
(1)
The Children’s Guardian may, by notice in
writing, require any government agency to provide the Children’s
Guardian 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
Children’s Guardian with the information sought by the
notice.
(4)
The Children’s Guardian may, by notice in
writing, request a person other than a government agency to provide the
Children’s Guardian 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
Children’s Guardian 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 Children’s
Guardian under this section, the Children’s Guardian:
(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 Children’s
Guardian.
s 31: Am 2013 No 31,
Sch 1 [4] [10].
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
Children’s Guardian 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.
s 32: Am 2013 No 31,
Sch 1 [4].
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
Children’s Guardian 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.
s 33: Am 2013 No 31,
Sch 1 [4].
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
Children’s Guardian 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 Children’s Guardian,
(c)
the keeping of records by reporting bodies of
information about such matters or potential such matters supplied to the
Children’s Guardian,
(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.
s 35: Am 2013 No 31,
Sch 1 [4].
36Enforcement
notices
(1)
The Children’s Guardian 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 Children’s Guardian 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 Children’s Guardian 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
Children’s Guardian 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
Children’s Guardian under this Act.
s 36: Am 2013 No 31,
Sch 1 [4].