Part 4Reviews and appeals
26Persons not entitled to apply for review or enabling
order
(1)
The following persons are not entitled to make an
application under this Part—
(a)
a person who has been convicted of any of the
following offences, if the offence was committed as an adult and the person is
a person who satisfies subsection (2)—
(i)
murder,
(ii)
an offence against section 61B, 61C, 61D, 61E,
61F, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 61P, 63,
65A, 66, 66F, 76, 78A, 78B, 80A, 80D, 80E or 81 of the Crimes Act 1900, if the person against
whom the offence was committed was a child,
(iii)
the common law offence of rape, if the person
against whom the offence was committed was a child,
(iv)
an offence against section 66A, 66B, 66C, 66D,
66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB or 66EC of the Crimes Act 1900,
(v)
an offence against section 67, 68, 71, 72, 72A,
73, 73A, 74 or 76A of the Crimes Act
1900,
(vi)
an offence against section 78H, 78I, 78K, 78L,
78M, 78N, 78O or 78Q of the Crimes Act
1900,
(vii)
an offence against section 91D, 91E or 91F of the
Crimes Act 1900,
(viii)
an offence against section 91G, 91H, 578B or
578C(2A) of the Crimes Act
1900,
(ix)
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,
(x)
an offence against section 272.9, 272.10 (if it
relates to an underlying offence against section 272.9), 272.12, 272.13,
272.14 or 272.15 of the Criminal Code of the
Commonwealth,
(xi)
an offence against section 272.18, 272.19 or
272.20 of the Criminal Code of the Commonwealth, if it
relates to a Class 1 offence within the meaning of the Child Protection (Offenders Registration) Act
2000,
(xii)
an offence against section 273.5, 273.6, 273.7,
471.16, 471.17, 471.19, 471.20, 471.22, 471.24, 471.25, 474.19, 474.20,
474.22, 474.23, 474.24A, 474.25A, 474.25B, 474.26 or 474.27 of the Criminal
Code of the Commonwealth,
(xiii)
an offence against section 233BAB of the Customs Act
1901 of the Commonwealth involving items of child
pornography or of child abuse material,
(xiv)
an offence an element of which is an intention to
commit an offence listed in subparagraphs
(i)–(xiii),
(xv)
an offence of attempting, or of conspiracy or
incitement, to commit an offence listed in subparagraphs
(i)–(xiii),
(b)
a person who has been convicted of an offence
committed as an adult under a law of another State or a Territory, the
Commonwealth or a foreign jurisdiction that, if committed in New South Wales,
would constitute an offence referred to in paragraph (a) and the person is a
person who satisfies subsection (2),
(c)
a person whose application for a working with
children check clearance has been refused, or whose working with children
check clearance has been cancelled, wholly or partly on the grounds that
proceedings have been commenced against the person for an offence specified in
Schedule 2 and the proceedings have not been finally
determined.
(2)
A person convicted of an offence specified in
subsection (1) satisfies this subsection if—
(a)
the person received a sentence of full time
custody for the offence, or
(b)
any of the following orders (including any
equivalent orders made by a court of a jurisdiction other than this State
(including jurisdictions outside Australia)) was imposed on the person in
respect of the offence and the order is in force—
(i)
a home detention order, intensive correction
order or community service order under the Crimes
(Sentencing Procedure) Act 1999, a good behaviour order
under section 9 of that Act or an order under section 12 of that
Act,
(ia)
a community correction order or conditional
release order under that Act,
(ii)
a conditional release order or recognizance
release order under section 20 of the Crimes Act 1914 of
the Commonwealth, or
(c)
a prohibition order under the Child Protection (Offenders Prohibition Orders) Act
2004 (or a corresponding prohibition order under section
19 of that Act) is in force against the person.
(3)
This section applies to convictions for offences
whether occurring before, on or after the commencement of this
Act.
s 26: Subst 2015 No
29, Sch 2 [30]. Am 2015 No 58, Sch 2.4; 2016 No 56, Sch 1 [6]–[8]; 2017
No 53, Sch 4.6; 2018 No 33, Sch 5.2 [1]–[4].
27Applications to Civil and Administrative Tribunal for
administrative reviews of clearance decisions
(1)
A person who has been refused a working with
children check clearance by the Children’s Guardian may apply to the
Tribunal for an administrative review under the Administrative
Decisions Review Act 1997 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
Children’s Guardian under section 23 may apply to the Tribunal for an
administrative review under the Administrative Decisions
Review Act 1997 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 Children’s Guardian may apply to the Tribunal for an
administrative review under the Administrative Decisions
Review Act 1997 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), (6)
(7)
Section 53 of the Administrative
Decisions Review Act 1997 does not apply to a decision
that may be reviewed by the Tribunal under this section.
(8)
The Tribunal must not, on a review of a decision
under this section, make a stay order in respect of the decision unless the
Tribunal is satisfied that there are appropriate arrangements in place for the
supervision and enforcement of the conditions (if any) of the stay order by
the person’s employer.
(9)
A stay order is an order under
section 60 of the Administrative Decisions Review Act
1997 that stays or otherwise affects the operation of a
decision that is subject to review by the Tribunal under this
section.
(10)
This section does not otherwise affect the
operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act
1997.
s 27: Am 2013 No 31,
Sch 1 [4]; 2013 No 95, Sch 2.23 [2]–[4]; 2016 No 56, Sch 1 [9]; 2018 No
14, Sch 1 [16].
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
under section 23,
because the person is a disqualified
person.
(4)
The Children’s Guardian 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 Children’s Guardian to revoke an interim bar or
to grant the person a clearance.
(6A)
To avoid doubt, Division 5 of Part 3 applies to
any clearance granted by the Children’s Guardian in accordance with the
Tribunal’s order.
(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)
s 28: Am 2013 No 31,
Sch 1 [4]; 2013 No 95, Sch 2.23 [5]; 2016 No 56, Sch 1 [10]; 2018 No 14, Sch 1
[17].
29Further review of persons who obtain enabling
orders
(1)
The Children’s Guardian 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 Children’s Guardian, 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 Children’s Guardian.
(4)
s 29: Am 2013 No 31,
Sch 1 [4]; 2013 No 95, Sch 2.23 [6].
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 criminal
history and the conduct of the person since the matters
occurred,
(i)
the likelihood of any repetition by the person of
the offences or conduct and the impact on children of any such
repetition,
(i1)
any order of a court or tribunal that is in force
in relation to the person,
(j)
any information given by the applicant in, or in
relation to, the application,
(j1)
any relevant information in relation to the
person that was obtained in accordance with section 36A,
(k)
any other matters that the Children’s
Guardian considers necessary.
(1A)
The Tribunal may not make an order under this
Part which has the effect of enabling a person (the affected person) to
work with children in accordance with this Act unless the Tribunal is
satisfied that—
(a)
a reasonable person would allow his or her child
to have direct contact with the affected person that was not directly
supervised by another person while the affected person was engaged in any
child-related work, and
(b)
it is in the public interest to make the
order.
(2)
On an application under section 29, the Tribunal
may, by order, stay the operation of a determination by the Children’s
Guardian under this Act relating to the applicant pending the determination of
the matter.
Note—
Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act
1997 enables a decision the subject of an application
under section 27 of this Act for an administrative review under that Act to be
stayed by the Tribunal.
(3)
s 30: Am 2013 No 31,
Sch 1 [4]; 2013 No 95, Sch 2.23 [7] [8]; 2015 No 29, Sch 2 [31]; 2016 No 56,
Sch 1 [11]; 2018 No 14, Sch 1 [18] [19]; 2022 No 34, Sch
1[8].
Part 5Provision of information
31Powers of Children’s Guardian to require production of
information
(1)
The Children’s Guardian may, by notice in
writing (an assessment notice),
require any person to provide the Children’s Guardian with a statement
or information relevant to an assessment of whether a person poses a risk to
the safety of children.
(2)
A requirement may be made 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, or
(c)
determining whether to grant a continuing
residence approval.
(3)
A person to whom an assessment notice is given is
authorised and required to comply with the notice.
(4)
An assessment notice may specify a day on or
before which the notice is to be complied with.
(5)
If a person fails to comply with an assessment
notice, the Children’s Guardian may, by further notice in writing served
on the person (an enforcement notice),
direct the person to comply with the assessment notice within a period
specified in the notice (of not less than 28 days).
(6)
The enforcement notice must warn the person that
a failure to comply with the notice is an offence.
(7)
The Children’s Guardian may revoke an
enforcement notice at any time.
(8)
A person who fails, without reasonable excuse, to
comply with an enforcement notice in force under this section is guilty of an
offence.
Maximum penalty—5 penalty
units.
(9)
In any proceedings for an offence against this
section, the onus of proving that a person had a reasonable excuse lies with
the defendant.
(10)
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.
(11)
In this section—
information includes
documents.
person includes a government
agency.
s 31: Am 2013 No 31,
Sch 1 [4] [10]. Subst 2018 No 14, Sch 1 [20].
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,
(c)
without limiting paragraph (a) or (b),
information relating to the circumstances of an offence or other matter
disclosed under this section.
(2)
(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—
(a)
whether or not the information relates to events
that occurred when the person was under the age of 18 years,
and
(b)
whether or not the information relates to
offences that cause or may cause the person to be a disqualified person or
result in an assessment requirement affecting the
person.
s 33: Am 2013 No 31,
Sch 1 [14]; 2018 No 14, Sch 1 [21]–[23].
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)
the Australian Criminal Intelligence
Commission,
(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)
(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.
s 34: Am 2016 No 55,
Sch 2.3; 2018 No 14, Sch 1 [24]; 2020 No 30, Sch 2.6.
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.
(1A)
(2)
Notification under this section does not extend
to findings made by the reporting body before 3 July 1995 unless—
(a)
the reporting body is otherwise directed in
writing by the Children’s Guardian in respect of a finding made by the
reporting body, or
(b)
a person holding a key position in the
organisation has knowledge of a finding made by the reporting
body.
(2A)
A direction of the Children’s Guardian may
specify a particular finding or may specify findings of a particular class
(such as findings against a specified person or findings during a specified
period).
(2B)
Nothing in this section—
(a)
prevents a reporting body from notifying the
Children’s Guardian about a finding made before 3 July 1995,
or
(b)
requires a reporting body or a person holding a
key position to review or to seek out records created before 3 July 1995,
otherwise than in accordance with a direction given under 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), (b)
(c)
a registration or other licensing authority
constituted under an Act,
(c1), (d)
(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]; 2015 No 29, Sch 2 [32] [33]; 2015 No 58, Sch 3.14; 2016 No 56, Sch
1 [12]; 2019 No 25, Sch 5.6[3] [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].
36AExchange of information to bodies in other
jurisdictions
(1)
In this section—
working with
children check information means information relevant to
determining whether to grant or cancel a working with children check clearance
(or its equivalent in another jurisdiction) to a person and may include any
information about the person.
(2)
The object of this section is to provide for the
exchange of working with children check information between the
Children’s Guardian and bodies that administer working with children
check clearances in other jurisdictions.
(3)
The Minister may, by order published in the
Gazette, make protocols setting out the circumstances under which working with
children check information may be exchanged under this
section.
(4)
The protocols may contain recommended privacy
standards for bodies in other jurisdictions and may prohibit the disclosure of
information under this section that do not adopt those
standards.
(5)
The Minister is to consult with the Privacy
Commissioner in the preparation of the protocols.
(6)
The Children’s Guardian may exchange
working with children check information with bodies that administer working
with children check clearances in other jurisdictions, but only if the
exchange is in accordance with the protocols.
(7)
If a person, acting in good faith, exchanges
working with children check information in accordance with this section, that
person is not liable to any civil or criminal action, or any disciplinary
action, for exchanging the information.
(8)
Nothing in this section limits an exchange of
working with children check information that is otherwise permitted under any
Act or law.
s 36A: Ins 2016 No
56, Sch 1 [13].
36AAObtaining and sharing information—NDIS Screening
Agency
(1)
The Children’s Guardian may obtain relevant
information from and disclose relevant information to the NDIS Screening
Agency for an authorised purpose.
(2)
In this section—
authorised
purpose means any purpose that is for or in connection with
the execution or administration of a relevant law and includes (without
limitation) the following purposes—
(a)
verification of the identity of a person who is
an applicant for or the holder of a clearance under a relevant
law,
(b)
consideration and determination of a
person’s application under a relevant law,
(c)
assessing and determining whether a person poses
a risk to the safety of children or a risk of harm to persons with
disability,
(d)
assessing and determining whether a risk
assessment of a person is required under a relevant law,
(e)
ongoing monitoring of a person who holds a
clearance under a relevant law for the purpose of determining whether the
person requires a risk assessment under a relevant law or poses a risk to the
safety of children or a risk of harm to persons with
disability.
clearance history
of a person means the history of action taken under a relevant law in respect
of an application for a clearance by the person or a clearance held by the
person under the relevant law, including any risk assessment determination,
interim bar, refusal of an application and the suspension or cancellation of a
clearance.
NDIS Screening
Agency means the Screening Agency under the National Disability Insurance Scheme (Worker Checks) Act
2018 and includes any person exercising functions in the
execution or administration of that Act.
relevant
information means the following information about a
person—
(a)
information relevant to verification of the
identity of the person,
(b)
information about the person disclosed in an
application under a relevant law,
(c)
information about the person’s criminal
history in this or any other jurisdiction,
(d)
information about workplace misconduct by the
person in this or any other jurisdiction, being misconduct that concerns
children or persons with disability,
(e)
information about any order imposed on the person
by a court relating to child protection, apprehended violence or domestic or
family violence in this or any other jurisdiction,
(f)
information relevant to determining whether the
person requires a risk assessment under a relevant law,
(g)
information about the person’s clearance
history,
(h)
other information relevant to determining whether
the person poses a risk to the safety of children or a risk of harm to persons
with disability.
relevant law means this
Act or the National Disability Insurance Scheme
(Worker Checks) Act 2018.
s 36AA: Ins 2018 No
82, Sch 2.1 [2].
36BDuty to keep information up to date
(1)
A person who holds a working with children check
clearance or who has made a current application to the Children’s
Guardian for a working with children check clearance must notify the
Children’s Guardian of any change to the person’s personal details
within 3 months of the change occurring.
(2)
The notice must be given in a form approved by
the Children’s Guardian.
(3)
A person’s personal details are
as follows—
(a)
the person’s name,
(b)
the person’s address,
(c)
the person’s contact
details,
(e)
any other information of a kind prescribed by the
regulations.
(4)
A person who, without reasonable excuse, fails to
comply with this section is guilty of an offence.
Maximum penalty—5 penalty
units.
s 36B: Ins 2018 No
14, Sch 1 [25].
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.
42AExpert advisory panel
(1)
The Children’s Guardian may appoint an
expert advisory panel to provide advice to the Children’s Guardian about
matters relating to offenders for the purposes of assisting the
Children’s Guardian in carrying out risk assessments and exercising
functions under this Act.
(2)
The advice provided is not to relate to
particular individuals.
(3)
The Children’s Guardian may make advice
provided by the expert advisory panel available to the Tribunal, on the
initiative of the Children’s Guardian or at the request of the
Tribunal.
(4)
The Children’s Guardian and the Tribunal
may, when exercising functions under this Act, consider any advice provided by
the expert advisory panel.
(5)
The terms of the appointment and any remuneration
of members of the expert advisory panel are to be determined by the
Children’s Guardian and must be approved by the
Minister.
s 42A: Ins 2015 No
29, Sch 2 [37].
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 Children’s
Guardian 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.
s 44: Am 2013 No 31,
Sch 1 [4].
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.
(3)
For the avoidance of doubt, if a worker has
consented to the disclosure to an agency prescribed by the regulations of
information indicating that a criminal record check did not disclose any
criminal record in relation to the worker, the Children’s Guardian may,
at the time of the verification of the worker under section 9A, disclose that
information to the head of the agency.
Maximum penalty—50 penalty units, or
imprisonment for 6 months, or both.
s 45: Am 2016 No 56,
Sch 1 [14]; 2022 No 34, Sch 1[11].
45AFalse or misleading statements
A person must not, in any application under this
Act or the regulations, or in connection with an inquiry made by the
Children’s Guardian in relation to any such application, make a
statement or furnish information that the person knows to be false or
misleading in a material particular.
Maximum penalty—5 penalty
units.
s 45A: Ins 2016 No
56, Sch 1 [15].
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.
48AReports under Children and Young Persons
(Care and Protection) Act 1998
(1)
Any information obtained by the Children’s
Guardian in the course of exercising functions under this Act may be used for
the purposes of making a report to the Secretary under section 24 (Report
concerning child or young person at risk of significant harm) or 27 (Mandatory
reporting) of the Children and Young Persons (Care and
Protection) Act 1998.
(1A)
Any information about or in connection with a
person (who the Children’s Guardian reasonably believes to be any one or
more of the following) that has been obtained or used by the Children’s
Guardian in the course of exercising functions under this Act, may be
disclosed to the Secretary for the purposes of the Secretary exercising
functions under Chapter 4 of the Children and Young Persons
(Care and Protection) Act 1998—
(a)
a person who is or has been an authorised carer,
a carer applicant, a prospective adoptive parent, a guardian or a prospective
guardian,
(b)
a person who resides or has resided on the same
property as another person while that other person is or was an authorised
carer, a carer applicant, a prospective adoptive parent, a guardian or a
prospective guardian.
(2)
A report referred to in section 29 of the Children and Young Persons (Care and Protection) Act
1998 may be provided to the Children’s Guardian for
the purpose of the exercise of the Children’s Guardian’s functions
under this Act. Any such report may not be subsequently dealt with by the
Children’s Guardian in a manner that contravenes that section, except to
the extent that it is necessary for the Children’s Guardian to do so in
the exercise of functions under this Act.
(3)
In this section—
guardian has the same
meaning as in section 79A of the Children and Young Persons
(Care and Protection) Act 1998.
s 48A: Ins 2013 No
31, Sch 1 [16]. Am 2015 No 29, Sch 2 [38]–[40].
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.
50APenalty notices
(1)
An authorised officer may issue a penalty notice
to a person if it appears to the officer that the person has committed a
penalty notice offence.
(2)
A penalty notice offence is an offence against
this Act or the regulations that is prescribed by the regulations as a penalty
notice offence.
(3)
The Fines Act
1996 applies to a penalty notice issued under this
section.
Note—
The Fines Act
1996 provides that, if a person issued with a penalty
notice does not wish to have the matter determined by a court, the person may
pay the amount specified in the notice and is not liable to any further
proceedings for the alleged offence.
(4)
The amount payable under a penalty notice issued
under this section is the amount prescribed for the alleged offence by the
regulations (not exceeding the maximum amount of penalty that could be imposed
for the offence by a court).
(5)
This section does not limit the operation of any
other provision of, or made under, this or any other Act relating to
proceedings that may be taken in respect of offences.
s 50A: Ins 2018 No
14, Sch 1 [26].
50BAuthorised officers
(1)
The Children’s Guardian may appoint any
person employed in the Office of the Children’s Guardian (or any class
of persons so employed) as an authorised officer for the purposes of this
Act.
(2)
The Children’s Guardian may revoke or amend
an appointment at any time.
(3)
Every authorised officer is to be provided with
identification as an authorised officer.
(4)
In the course of exercising the functions of an
authorised officer under this Act, the officer must, if requested to do so by
any person affected by the exercise of any such function, produce to the
person the officer’s identification as an authorised
officer.
s 50B: Ins 2018 No
14, Sch 1 [26].
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 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.
s 51: Am 2015 No 29,
Sch 2 [41].
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
Children’s Guardian 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.
s 52: Am 2013 No 31,
Sch 1 [4].
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.
54
s 54: Ins 2020 No 1,
Sch 2.1. Am 2021 No 4, Sch 1.1. Rep 2012 No 51, sec 54(2).