2010 THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Minister for Disability, Housing and Community Services) Working with Vulnerable People (Background Checking) Bill 2010 Contents Page Part 1 Preliminary 1 Name of Act 2 2 Commencement 2 3 Dictionary 3 4 Notes 3 5 Offences against Act--application of Criminal Code etc 3 Part 2 Important concepts 6 Who is a vulnerable person? 4 7 What is a regulated activity? 4 J2009-767 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 8 When is a person engaged in a regulated activity? 5 9 What is contact with a vulnerable person? 6 10 Who is an employer? 7 Part 3 Requirement for registration 11 When is a person required to be registered? 8 12 Offences--person engage in regulated activity for which person not registered 11 13 Offences--employer engage person in regulated activity for which person not registered 13 14 When unregistered person may be engaged in regulated activity 14 Part 4 Applying for registration 15 Application for registration 16 16 Application for registration--contents 16 17 Application for registration--additional information 18 18 Application for registration--withdrawal 19 19 Offences--applicant fail to disclose charge, conviction or finding of guilt for relevant offence 19 20 Restriction on reapplying for registration 20 Part 5 Risk assessments Division 5.1 Important concepts 21 Meaning of risk assessment 22 22 Meaning of criminal history 22 23 Meaning of non-conviction information 23 24 Meaning of relevant offence 23 Division 5.2 Risk assessment guidelines 25 Risk assessment guidelines 24 26 Risk assessment guidelines--content 24 27 Risk assessment guidelines--criminal history 26 28 Risk assessment guidelines--non-conviction information 27 29 Risk assessment guidelines--other information 28 contents 2 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Division 5.3 Conducting risk assessments 30 Risk assessments 28 31 Commissioner may seek information from entities to conduct risk assessments 29 Division 5.4 Negative risk assessments 32 Proposed negative notices 29 33 Reconsideration of negative risk assessments 30 34 Extensions of period for reconsideration of negative risk assessment 31 35 Negative notices 32 Part 6 Registration Division 6.1 Registration 36 Registration 34 37 Conditional registration 34 38 Proposed conditional registration 35 39 Reconsideration of proposed conditional registration 36 40 Extensions of period for reconsideration of proposed conditional registration 37 41 Notice of conditional registration 38 42 Offences--registered person contravene condition of registration 39 Division 6.2 Registration cards 43 Registration cards 40 44 Offence--fail to produce registration card 40 45 Lost, stolen or damaged registration cards 40 46 Offence--fail to return registration card 41 Division 6.3 Monitoring registered people 47 Commissioner may seek information from entities about registered people 42 48 Additional risk assessments 43 49 Offences--registered person fail to disclose charge, conviction or finding of guilt for relevant offence 44 50 Offence--fail to notify change of name or address 45 Working with Vulnerable People (Background Checking) contents 3 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page Division 6.4 Suspending or cancelling registration 51 Grounds for suspension or cancellation of registration 45 52 Notice of proposed suspension or cancellation of registration 46 53 Suspension or cancellation of registration 46 Part 7 Notification and review of decisions 54 Meaning of reviewable decision--pt 7 48 55 Reviewable decision notices 48 56 Applications for review 48 Part 8 Miscellaneous 57 Protection from liability 49 58 Offences--use or divulge protected information 49 59 Evidentiary certificates 52 60 Disqualification orders 52 61 Determination of fees 52 62 Approved forms 53 63 Review of Act 53 64 Regulation-making power 53 65 Fair Trading (Consumer Affairs) Act 1973, dictionary, definition of fair trading legislation, new paragraph (f) 54 Schedule 1 Regulated activities 55 Part 1.1 Activities or services for children 55 1.1 Child protection services 55 1.2 Childcare service 56 1.3 Child education services 56 1.4 Child accommodation services 57 1.5 Counselling and support services for children 58 1.6 Commercial services for children 58 Part 1.2 Activities or services for vulnerable people 59 1.7 Mental health 59 contents 4 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Page 1.8 Migrants, refugees and asylum seekers 59 1.9 Homeless people 60 1.10 Housing and accommodation 60 1.11 Justice facilities 61 1.12 Prevention of crime 62 1.13 Victims of crime 62 1.14 Services for addictions 62 1.15 Community services 63 1.16 Disability services 64 1.17 Respite care services 65 1.18 Emergency services personnel 65 Part 1.3 Other activities or services for vulnerable people 66 1.19 Transport 66 1.20 Coaching and tuition 67 1.21 Vocational and educational training 67 1.22 Religious organisations 67 1.23 Clubs, associations and movements 68 Schedule 2 Reviewable decisions 69 Dictionary 70 Working with Vulnerable People (Background Checking) contents 5 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] THE LEGISLATIVE ASSEMBLY FOR THE AUSTRALIAN CAPITAL TERRITORY (As presented) (Minister for Disability, Housing and Community Services) Working with Vulnerable People (Background Checking) Bill 2010 A Bill for An Act to provide for background checking and registration of people who work with vulnerable people, and for other purposes The Legislative Assembly for the Australian Capital Territory enacts as follows: J2009-767 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 1 1 Part 1 Preliminary 2 1 Name of Act 3 This Act is the Working with Vulnerable People (Background 4 Checking) Act 2010. 5 2 Commencement 6 (1) This Act commences on a day fixed by the Minister by written 7 notice. 8 Note 1 The naming and commencement provisions automatically commence on 9 the notification day (see Legislation Act, s 75 (1)). 10 Note 2 A single day or time may be fixed, or different days or times may be 11 fixed, for the commencement of different provisions (see Legislation 12 Act, s 77 (1)). 13 (2) If this Act has not commenced within 12 months beginning on its 14 notification day, it automatically commences on the first day after 15 that period. 16 (3) The Legislation Act, s 79 (Automatic commencement of postponed 17 law) does not apply to this Act. page 2 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 3 1 3 Dictionary 2 The dictionary at the end of this Act is part of this Act. 3 Note 1 The dictionary at the end of this Act defines certain terms used in this 4 Act, and includes references (signpost definitions) to other terms 5 defined elsewhere in this Act. 6 For example, the signpost definition `spent, for a conviction--see the 7 Spent Convictions Act 2000, section 7.' means that the term `spent' is 8 defined in that section and the definition applies to this Act. 9 Note 2 A definition in the dictionary (including a signpost definition) applies to 10 the entire Act unless the definition, or another provision of the Act, 11 provides otherwise or the contrary intention otherwise appears (see 12 Legislation Act, s 155 and s 156 (1)). 13 4 Notes 14 A note included in this Act is explanatory and is not part of this Act. 15 Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of 16 notes. 17 5 Offences against Act--application of Criminal Code etc 18 Other legislation applies in relation to offences against this Act. 19 Note 1 Criminal Code 20 The Criminal Code, ch 2 applies to all offences against this Act (see 21 Code, pt 2.1). 22 The chapter sets out the general principles of criminal responsibility 23 (including burdens of proof and general defences), and defines terms 24 used for offences to which the Code applies (eg conduct, intention, 25 recklessness and strict liability). 26 Note 2 Penalty units 27 The Legislation Act, s 133 deals with the meaning of offence penalties 28 that are expressed in penalty units. Working with Vulnerable People (Background Checking) page 3 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 6 1 Part 2 Important concepts 2 6 Who is a vulnerable person? 3 In this Act: 4 vulnerable person means-- 5 (a) a child; or 6 (b) an adult who is-- 7 (i) disadvantaged; and 8 (ii) accessing a regulated activity in relation to the 9 disadvantage. 10 Examples--disadvantaged 11 1 an adult with a physical or mental disability 12 2 an adult who suffers social or financial hardship 13 3 an adult who cannot communicate, or who has difficulty 14 communicating, in English 15 Note An example is part of the regulation, is not exhaustive and may 16 extend, but does not limit, the meaning of the provision in which 17 it appears (see Legislation Act, s 126 and s 132). 18 7 What is a regulated activity? 19 (1) In this Act: 20 regulated activity-- 21 (a) means-- 22 (i) an activity or service mentioned in schedule 1; or 23 (ii) an activity or service prescribed by regulation; but 24 (b) does not include an activity or service declared by the Minister 25 under subsection (2). page 4 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 8 1 (2) The Minister may declare that a stated activity or service is not a 2 regulated activity. 3 (3) A declaration is a disallowable instrument. 4 Note A disallowable instrument must be notified, and presented to the 5 Legislative Assembly, under the Legislation Act. 6 8 When is a person engaged in a regulated activity? 7 A person is engaged in a regulated activity if the person-- 8 (a) has contact with a vulnerable person as part of engaging in the 9 activity; and 10 Note Contact, between a person and a vulnerable person as part of 11 engaging in a regulated activity--see s 9. 12 (b) is engaged in the activity in any capacity and whether-- 13 (i) for reward or otherwise; or 14 (ii) under an arrangement with someone else or otherwise. 15 Examples--capacity in which engaged in activity 16 1 employee 17 2 contractor or subcontractor 18 3 consultant 19 4 self-employed person 20 5 apprentice 21 6 volunteer 22 7 agent 23 8 supervisor 24 9 person on a work experience placement for an educational or 25 vocational course 26 10 person carrying out work for a sentence, including a community 27 service order Working with Vulnerable People (Background Checking) page 5 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 9 1 11 member of a management committee of an unincorporated body or 2 association 3 12 minister of religion for a religious organisation 4 Note An example is part of the Act, is not exhaustive and may extend, 5 but does not limit, the meaning of the provision in which it 6 appears (see Legislation Act, s 126 and s 132). 7 9 What is contact with a vulnerable person? 8 In this Act: 9 contact, between a person and a vulnerable person as part of 10 engaging in a regulated activity, means contact that-- 11 (a) would reasonably be expected as a normal part of engaging in 12 the activity; and 13 (b) is not incidental to engaging in the activity; and 14 (c) is 1 or more of the following: 15 (i) physical contact, including engaging in the activity at the 16 same place as the vulnerable person; 17 Examples--same place 18 1 an office 19 2 anywhere on a school campus 20 Note An example is part of the Act, is not exhaustive and may 21 extend, but does not limit, the meaning of the provision in 22 which it appears (see Legislation Act, s 126 and s 132). 23 (ii) oral communication, whether face-to-face or by 24 telephone; 25 (iii) written communication, including-- 26 (A) electronic communication; or 27 (B) dealing with a record relating to the vulnerable 28 person; page 6 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 10 1 (iv) making a decision that affects the vulnerable person. 2 Examples--contact 3 1 A water main bursts at a school during school hours. A plumber is called to 4 the school to fix the problem. Despite working near children, the plumber's 5 contact with the children is not contact for this Act for either of the following 6 reasons: 7 (a) it would not reasonably be expected as a normal part of plumbing; 8 (b) it is incidental to the plumber's activity. 9 2 A school janitor routinely carries out minor repairs at a school during school 10 hours. The janitor's contact with the children is contact for this Act as the 11 contact-- 12 (a) would reasonably be expected as a normal part of the janitor's 13 activities; and 14 (b) is not incidental to the janitor's activities; and 15 (c) is physical contact, as the janitor is carrying out the activities in the 16 same place as children. 17 10 Who is an employer? 18 In this Act: 19 employer, in relation to a regulated activity, means an entity for 20 whom a person engages in the activity. 21 Examples--employer 22 1 principal contractor is an employer of a subcontractor 23 2 charitable organisation is an employer of a volunteer 24 3 religious organisation is an employer of a minister of religion 25 Note 1 Entity includes an unincorporated body and a person (including a 26 person occupying a position) (see Legislation Act, dict, pt 1). 27 Note 2 An example is part of the Act, is not exhaustive and may extend, but 28 does not limit, the meaning of the provision in which it appears (see 29 Legislation Act, s 126 and s 132). Working with Vulnerable People (Background Checking) page 7 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 11 1 Part 3 Requirement for registration 2 11 When is a person required to be registered? 3 (1) A person is required to be registered to engage in a regulated 4 activity. 5 (2) However, a person is not required to be registered to engage in a 6 regulated activity if the person is-- 7 (a) under 16 years old; or 8 (b) engaged in the activity (other than an overnight camp for 9 children) for not more than-- 10 (i) 3 days in any 4-week period; and 11 (ii) 7 days in any 12-month period; or 12 (c) registered under a corresponding law and-- 13 (i) the activity is substantially similar to a regulated activity 14 the person is allowed to engage in under the 15 corresponding law; and 16 (ii) the person is engaged in the activity for not more than 17 28 days in any 12-month period; or 18 Note Corresponding law--see the dictionary. 19 (d) a close relative of each vulnerable person taking part in the 20 activity with whom the person has contact; or 21 (e) engaged in the activity as a volunteer and-- 22 (i) is a close relative of a vulnerable person taking part, or 23 who normally takes part, in the activity; and page 8 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 11 1 (ii) a close relative of each vulnerable person taking part in 2 the activity is engaged, or expected to be engaged, in the 3 activity; or 4 Examples 5 1 playgroup 6 2 a club sporting event for children at which a parent of each child is 7 expected to be present 8 3 a pottery class for children in which a parent of each child also takes 9 part 10 Note An example is part of the Act, is not exhaustive and may extend, 11 but does not limit, the meaning of the provision in which it 12 appears (see Legislation Act, s 126 and s 132). 13 (f) engaged in the activity in the same capacity as a vulnerable 14 person; or 15 Examples 16 1 players in a sporting team 17 2 work colleagues 18 (g) engaged in the activity as a high school student doing practical 19 training for an educational or vocational course; or 20 (h) engaged in the activity as-- 21 (i) a police officer; or 22 (ii) a registered health professional under the Health 23 Professionals Act 2004 or a health practitioner; or 24 (iii) a lawyer; or 25 (iv) a staff member of, or volunteer for, an approved provider 26 under the Aged Care Act 1997 (Cwlth); or 27 (v) a financial services licensee under the Corporations Act; 28 or Working with Vulnerable People (Background Checking) page 9 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 11 1 (i) engaged in the activity for a Commonwealth or Territory 2 government agency and the only contact the person has with a 3 vulnerable person is-- 4 (i) working with a record of the vulnerable person; or 5 (ii) providing a service to the vulnerable person at a public 6 counter or shopfront; or 7 Example 8 an administrative worker employed by Centrelink or Medicare 9 (j) engaged in the activity for a declared state of emergency; or 10 Note A state of emergency may be declared under the Emergencies 11 Act 2004, s 156. 12 (k) engaged in the activity for a Territory or national event and the 13 commissioner declares that the person is not required to be 14 registered for the activity; or 15 Examples--Territory or national event 16 1 Paralympics 17 2 World Youth Day 18 Note Commissioner means the commissioner for fair trading (see the 19 dictionary). 20 (l) a person prescribed by regulation. 21 (3) A declaration is a notifiable instrument. 22 Note A notifiable instrument must be notified under the Legislation Act. 23 (4) In this section: 24 close relative, of a vulnerable person-- 25 (a) means the vulnerable person's-- 26 (i) domestic partner; or 27 Note Domestic partner--see the Legislation Act, s 169. page 10 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 12 1 (ii) father, mother, grandfather, grandmother, stepfather, 2 stepmother, father-in-law or mother-in-law; or 3 (iii) son, daughter, grandson, granddaughter, stepson, 4 stepdaughter, son-in-law or daughter-in-law; or 5 (iv) brother, sister, half-brother, half-sister, stepbrother, 6 stepsister, brother-in-law or sister-in-law; or 7 (v) uncle, aunt, uncle-in-law or aunt-in-law; or 8 (vi) nephew, niece or cousin; but 9 (b) does not include a kinship carer under the Children and Young 10 People Act 2008. 11 Note An activity conducted or a service provided by a kinship carer 12 under the Children and Young People Act 2008 is a regulated 13 activity--see sch 1, s 1.1. 14 day includes part of a day. 15 12 Offences--person engage in regulated activity for which 16 person not registered 17 (1) A person commits an offence if the person-- 18 (a) engages in a regulated activity; and 19 (b) is required to be registered to engage in the activity; and 20 (c) does not have a registration allowing the person to engage in 21 the activity. 22 Maximum penalty: 50 penalty units, imprisonment for 6 months or 23 both. 24 Note 1 A person with conditional registration may not be allowed to engage in 25 all regulated activities (see s 37). 26 Note 2 A person whose registration is suspended does not have a registration 27 allowing the person to engage in a regulated activity (see s 53 (5)). Working with Vulnerable People (Background Checking) page 11 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 12 1 Note 3 The employer for the regulated activity also commits an offence 2 (see s 13). 3 (2) An offence against subsection (1) is a strict liability offence. 4 (3) A person commits an offence if the person-- 5 (a) engages in a regulated activity; and 6 (b) is required to be registered to engage in the activity; and 7 (c) does not have a registration allowing the person to engage in 8 the activity; and 9 (d) knows, or is reckless about whether, the person-- 10 (i) is engaging in a regulated activity; and 11 (ii) is required to be registered to engage in the activity. 12 Maximum penalty: 200 penalty units, imprisonment for 2 years or 13 both. 14 (4) Strict liability applies to subsection (3) (c). 15 (5) This section does not apply to a person if-- 16 (a) the person is not registered; but 17 (b) the person engages in a regulated activity under section 14. 18 Note 1 An unregistered person who has applied for registration may engage in 19 a regulated activity for which the person is required to be registered in 20 certain circumstances (see s 14). 21 Note 2 The defendant has an evidential burden in relation to the matters 22 mentioned in s (4) (see Criminal Code, s 58). page 12 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 13 1 13 Offences--employer engage person in regulated activity 2 for which person not registered 3 (1) An employer commits an offence if-- 4 (a) the employer engages a person in a regulated activity; and 5 (b) the person is required to be registered to engage in the activity; 6 and 7 (c) the person does not have a registration allowing the person to 8 engage in the activity. 9 Note 1 A person with conditional registration may not be allowed to 10 engage in all regulated activities (see s 37). 11 Note 2 A person whose registration is suspended does not have a 12 registration allowing the person to engage in a regulated activity 13 (see s 53 (5)). 14 Maximum penalty: 50 penalty units, imprisonment for 6 months or 15 both. 16 (2) An offence against subsection (1) is a strict liability offence. 17 (3) An employer commits an offence if-- 18 (a) the employer engages a person in a regulated activity; and 19 (b) the person is required to be registered to engage in the activity; 20 and 21 (c) the person does not have a registration allowing the person to 22 engage in the activity; and 23 (d) the employer knows, or is reckless about whether-- 24 (i) the employer is engaging the person in a regulated 25 activity; and 26 (ii) the person is required to be registered to engage in the 27 activity. Working with Vulnerable People (Background Checking) page 13 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 14 1 (4) Strict liability applies to subsection (3) (c). 2 Maximum penalty: 200 penalty units, imprisonment for 2 years or 3 both. 4 (5) This section does not apply to an employer if an unregistered person 5 engages in a regulated activity for the employer under section 14. 6 Note 1 An unregistered person who has applied for registration may engage in 7 a regulated activity for which the person is required to be registered in 8 certain circumstances (see s 14). 9 Note 2 The defendant has an evidential burden in relation to the matters 10 mentioned in s (2) (see Criminal Code, s 58). 11 14 When unregistered person may be engaged in regulated 12 activity 13 (1) This section applies to an unregistered person if-- 14 (a) the person has applied for registration under section 15; and 15 (b) the commissioner has not-- 16 (i) registered the person under section 36; or 17 (ii) given the person a negative notice under section 35; and 18 (c) the person has not withdrawn the application. 19 (2) The person may engage in a regulated activity for which the person 20 is required to be registered if, and only if-- 21 (a) the person is eligible; and 22 (b) the person included a named employer for the activity on the 23 person's application for registration; and 24 Note Named employer--see s 16 (1) (d) (i) 25 (c) the named employer has agreed to engage the person in the 26 activity; and page 14 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 14 1 (d) a registered person is present at all times while the unregistered 2 person is engaged in the activity. 3 Note An unregistered person who is engaging in a regulated activity under 4 this section commits an offence under s 12 if the person continues to 5 engage in the activity after-- 6 (a) the person's application for registration is withdrawn (see s 18); 7 or 8 (b) the person is given a negative notice (see s 35). 9 (3) To remove any doubt, nothing in this section prevents an employer 10 refusing to engage an unregistered person in a regulated activity. 11 (4) In this section: 12 eligible--a person is eligible if-- 13 (a) the person has not previously been given a negative notice 14 under this Act or a corresponding law; and 15 (b) the person has not had a previous registration suspended or 16 cancelled; and 17 (c) the person's most recent registration (if any) was not 18 conditional. Working with Vulnerable People (Background Checking) page 15 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 15 1 Part 4 Applying for registration 2 15 Application for registration 3 (1) A person may apply to the commissioner for registration under this 4 Act. 5 Note 1 Commissioner means the commissioner for fair trading (see the 6 dictionary). 7 Note 2 If a form is approved under s 62 for this provision, the form must be 8 used. 9 Note 3 A fee may be determined under s 61 for this provision. 10 (2) This section is subject to section 20. 11 Note Under s 20, a person who is given a negative notice or whose 12 registration is cancelled must not reapply for registration for 3 years, 13 unless relevant information about the person has changed. 14 16 Application for registration--contents 15 (1) An application for registration must include-- 16 (a) the applicant's name and any previous name; and 17 (b) the applicant's current home address, and any previous home 18 address in the 5 years before applying; and 19 (c) evidence of the applicant's identity; and 20 Example 21 100 points of identification 22 Note An example is part of the Act, is not exhaustive and may extend, 23 but does not limit, the meaning of the provision in which it 24 appears (see Legislation Act, s 126 and s 132). page 16 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 16 1 (d) if the applicant engages, or intends to engage, in a regulated 2 activity for a particular employer-- 3 (i) the employer (the named employer) for the activity; and 4 (ii) the named employer's address and contact details; and 5 (iii) the capacity in which the applicant engages, or intends to 6 engage, in the activity for the named employer; and 7 (e) anything else prescribed by regulation. 8 (2) The application must be accompanied by-- 9 (a) a consent by the applicant for the commissioner to-- 10 (i) check the applicant's criminal history, non-conviction 11 information and any other information about the applicant 12 that may be relevant in deciding the application; and 13 Note 1 Criminal history, about a person--see s 22. 14 Note 2 Non-conviction information, about a person--see s 23. 15 (ii) seek information or advice from any entity in relation to 16 the applicant's-- 17 (A) application under section 31; or 18 (B) registration under section 47; and 19 (iii) contact the named employer (if any) in relation to the 20 status of the applicant's application or registration; and 21 Note For example, the commissioner must tell a person's 22 employer if the person withdraws an application 23 (see s 18 (2) (a)), if the commissioner registers the person 24 (see s 36 (2) (c)), if the commissioner refuses to register 25 the person (see s 35 (2) (b)), if there is a change in an 26 applicant's registration status as a result of an additional 27 risk assessment (see s 48), or if a person's registration is 28 suspended or cancelled (see s 53 (2) (b)). Working with Vulnerable People (Background Checking) page 17 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 17 1 (b) a statutory declaration by the applicant stating-- 2 (i) whether the applicant has been convicted or found guilty 3 of a relevant offence outside Australia; and 4 (ii) if the applicant has been convicted or found guilty of a 5 relevant offence outside Australia--details of the offence; 6 and 7 (c) anything else prescribed by regulation. 8 Note It is an offence to make a false or misleading statement, give false or 9 misleading information or produce a false or misleading document 10 (see Criminal Code, pt 3.4). 11 (3) The commissioner must tell the applicant in writing about the 12 following: 13 (a) the rights and obligations of the applicant under this Act; 14 (b) information the applicant may supply to support the 15 application; 16 (c) the risk assessment guidelines mentioned in division 5.2 and 17 where to find a copy. 18 Note The commissioner may tell the applicant about the matters in s (3) in 19 any way the commissioner considers appropriate, including on a form 20 approved for s 15 or in guidelines made for this Act. 21 17 Application for registration--additional information 22 (1) The commissioner may, in writing, require an applicant to give the 23 commissioner additional information in writing or documents that 24 the commissioner reasonably needs to decide the application. page 18 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 18 1 (2) If the applicant does not comply with a requirement under 2 subsection (1), the commissioner may refuse to consider the 3 application further. 4 Note It is an offence to make a false or misleading statement, give false or 5 misleading information or produce a false or misleading document (see 6 Criminal Code, pt 3.4). 7 18 Application for registration--withdrawal 8 (1) An applicant may withdraw an application at any time by written 9 notice to the commissioner. 10 Note If a form is approved under s 62 for this provision, the form must be 11 used. 12 (2) If an application is withdrawn the commissioner-- 13 (a) must tell the named employer (if any) that the application has 14 been withdrawn; and 15 (b) need take no further action on the application. 16 Note If an unregistered person engaging in a regulated activity under s 14 17 withdraws the person's application for registration, the person commits 18 an offence under s 12 if the person continues to engage in the activity. 19 19 Offences--applicant fail to disclose charge, conviction or 20 finding of guilt for relevant offence 21 (1) A person commits an offence if-- 22 (a) the person has applied for registration; and 23 (b) the commissioner has not-- 24 (i) told the person that the person has been registered; or 25 (ii) given the person a negative notice; and 26 (c) the person is charged with a relevant offence; and Working with Vulnerable People (Background Checking) page 19 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 20 1 (d) the person does not tell the commissioner about the charge in 2 writing within 14 days after the day the person is charged. 3 Maximum penalty: 50 penalty units, imprisonment for 6 months or 4 both. 5 (2) A person commits an offence if-- 6 (a) the person has applied for registration; and 7 (b) the commissioner has not-- 8 (i) told the person that the person has been registered; or 9 (ii) given the person a negative notice; and 10 (c) the person is convicted or found guilty of a relevant offence; 11 and 12 (d) the person does not tell the commissioner about the conviction 13 or finding of guilt in writing within 14 days after the day the 14 person is convicted or found guilty. 15 Maximum penalty: 50 penalty units, imprisonment for 6 months or 16 both. 17 (3) An offence against this section is a strict liability offence. 18 20 Restriction on reapplying for registration 19 (1) This section applies to a person if-- 20 (a) the person is given a negative notice; or 21 Note Negative notice--see s 35 (2). 22 (b) the person's registration is cancelled. 23 (2) The person may apply for registration under section 15 only if-- 24 (a) it is at least 3 years after the day-- 25 (i) the person was given the negative notice; or page 20 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 20 1 (ii) the cancellation took effect; or 2 Note For when a cancellation takes effect, see s 53 (4). 3 (b) there has been a change in relevant information about the 4 person since-- 5 (i) the person was given the negative notice; or 6 (ii) the cancellation took effect 7 Examples--change in relevant information 8 1 a person has been acquitted of a previously pending charge for a 9 relevant offence 10 2 a person's conviction for a relevant offence has been quashed 11 Note An example is part of the Act, is not exhaustive and may extend, 12 but does not limit, the meaning of the provision in which it 13 appears (see Legislation Act, s 126 and s 132). 14 (3) The risk assessment guidelines may provide for what constitutes a 15 change in relevant information about the person. Working with Vulnerable People (Background Checking) page 21 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.1 Important concepts Section 21 1 Part 5 Risk assessments 2 Division 5.1 Important concepts 3 21 Meaning of risk assessment 4 (1) In this Act: 5 risk assessment, for a person, means an assessment by the 6 commissioner of whether the person poses an unacceptable risk of 7 harm to a vulnerable person. 8 Examples--harm 9 1 sexual 10 2 physical 11 3 emotional 12 4 financial 13 Note An example is part of the Act, is not exhaustive and may extend, but 14 does not limit, the meaning of the provision in which it appears (see 15 Legislation Act, s 126 and s 132). 16 (2) It does not matter whether the risk of harm arises from neglect, 17 abuse or other conduct by the person. 18 22 Meaning of criminal history 19 In this Act: 20 criminal history, about a person, means any conviction of, or 21 finding of guilt against, the person for a relevant offence. 22 Note A conviction does not include a spent conviction (see Spent Convictions 23 Act 2000, s 16 (c) (i)). page 22 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Important concepts Division 5.1 Section 23 1 23 Meaning of non-conviction information 2 In this Act: 3 non-conviction information, about a person, means any of the 4 following information about a relevant offence (or an alleged 5 relevant offence): 6 (a) the person has been charged with the offence but-- 7 (i) a proceeding for the alleged offence is not finalised; or 8 (ii) the charge has lapsed, been withdrawn or discharged, or 9 struck out; 10 (b) the person has been acquitted of the alleged offence; 11 (c) the person has had a conviction for the alleged offence quashed 12 or set aside; 13 (d) the person has been served with an infringement notice for the 14 alleged offence; 15 (e) the person has a spent conviction for the offence. 16 Note The Spent Convictions Act 2000 sets out which convictions can 17 be spent (see that Act, s 11) and when a conviction is spent 18 (see that Act s 12). 19 24 Meaning of relevant offence 20 In this Act: 21 relevant offence means any of the following offences (whether 22 committed in the ACT or elsewhere): 23 (a) a sexual offence; 24 (b) an offence against the person; 25 (c) an offence involving violence; 26 (d) an offence involving dishonesty or fraud; Working with Vulnerable People (Background Checking) page 23 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.2 Risk assessment guidelines Section 25 1 (e) an offence relating to property; 2 (f) an offence involving possession of, or trafficking in, a drug of 3 dependence or controlled drug; 4 (g) an offence against an animal; 5 (h) a driving offence. 6 Note A reference to an offence includes a reference to a related ancillary 7 offence, eg attempt (see Legislation Act, s 189). 8 Division 5.2 Risk assessment guidelines 9 25 Risk assessment guidelines 10 (1) The commissioner must make guidelines (risk assessment 11 guidelines) about how risk assessments are to be conducted under 12 this Act. 13 (2) A guideline may apply, adopt or incorporate an instrument, as in 14 force from time to time. 15 Note The text of an applied, adopted or incorporated instrument, whether 16 applied as in force from time to time or as at a particular time, is taken 17 to be a notifiable instrument if the operation of the Legislation Act, s 47 18 (5) or (6) is not disapplied (see s 47 (7)). 19 (3) A risk assessment guideline is a notifiable instrument. 20 Note A notifiable instrument must be notified under the Legislation Act. 21 26 Risk assessment guidelines--content 22 (1) The risk assessment guidelines must provide for-- 23 (a) matters the commissioner must or may take into account in 24 conducting a risk assessment; and 25 (b) how those matters must or may be taken into account. page 24 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Risk assessment guidelines Division 5.2 Section 26 1 (2) Without limiting subsection (1), the risk assessment guidelines must 2 provide for the following to be taken into account in conducting a 3 risk assessment for a person in relation to a regulated activity: 4 (a) the person's criminal history; 5 Note The risk assessment guidelines must provide for certain matters to 6 be taken into account in relation to relevant offences included in 7 the person's criminal history--see s 27. 8 (b) non-conviction information about the person; 9 Note The risk assessment guidelines must provide for certain matters to 10 be taken into account in relation to relevant offences, or alleged 11 relevant offences, included in the non-conviction information 12 about the person--see s 28. 13 (c) whether the person was previously given a negative notice 14 under this Act or a corresponding law; 15 (d) whether the person was previously registered under this Act or 16 a corresponding law (including whether the registration was 17 suspended or cancelled); 18 (e) any other information the commissioner believes on reasonable 19 grounds is or may be relevant in deciding whether, in engaging 20 in the activity, the applicant poses a risk of harm to a 21 vulnerable person. 22 Examples--par (e) 23 1 an order made against the person made under the Domestic Violence 24 and Protection Orders Act 2008 25 2 a care and protection order under the Children and Young People 26 Act 2008 for a child for whom the person has or had parental 27 responsibility under that Act 28 3 a professional disciplinary proceeding against the person 29 Note 1 The risk assessment guidelines must provide for certain matters to 30 be taken into account in relation to other information--see s 29. Working with Vulnerable People (Background Checking) page 25 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.2 Risk assessment guidelines Section 27 1 Note 2 An example is part of the Act, is not exhaustive and may extend, 2 but does not limit, the meaning of the provision in which it 3 appears (see Legislation Act, s 126 and s 132). 4 (3) The risk assessment guidelines must provide that-- 5 (a) the applicant may make submissions to the commissioner in 6 relation to any matter the commissioner must or may take into 7 account in conducting a risk assessment; and 8 (b) the commissioner must not take into account any information 9 about an applicant unless satisfied on reasonable grounds that 10 the information is accurate. 11 27 Risk assessment guidelines--criminal history 12 The risk assessment guidelines must provide for the following to be 13 taken into account in relation to any relevant offence included in the 14 person's criminal history: 15 (a) the nature, gravity and circumstances of the offence; 16 (b) the relevance of the offence; 17 (c) how long ago the offence was committed; 18 (d) the age of the person and the victim at the time of the offence; 19 (e) whether the person's circumstances have changed since the 20 offence was committed; 21 (f) the person's attitude to the offence; 22 (g) if the person has undergone a program of treatment or 23 intervention for the offence--any assessment of the person 24 following the program; 25 (h) if the offence was committed outside Australia--whether the 26 offence is an offence in Australia; 27 (i) whether the person has committed any other relevant offence; page 26 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Risk assessment guidelines Division 5.2 Section 28 1 (j) any submission made by the person to the commissioner in 2 relation to the matters mentioned in paragraphs (a) to (i). 3 28 Risk assessment guidelines--non-conviction information 4 The risk assessment guidelines must provide for the following to be 5 taken into account in relation to any relevant offence, or any alleged 6 relevant offence, included in the non-conviction information about 7 the person: 8 (a) the nature, gravity and circumstances of the offence or alleged 9 offence; 10 (b) the relevance of the offence or alleged offence; 11 (c) how long ago the offence or alleged offence was committed; 12 (d) the age of the person and the victim at the time of the offence 13 or alleged offence; 14 (e) the truthfulness, completeness and reliability of any 15 information or evidence provided by the person who made the 16 allegation or provided the initial information; 17 (f) the nature, extent and outcome of any investigation into the 18 offence or alleged offence; 19 (g) any formal statement made by the person to a police officer, 20 including any answer given in a recorded interview, in relation 21 to the offence or alleged offence; 22 (h) any evidence given by the person in a court proceeding for the 23 offence or alleged offence; 24 (i) whether this was the person's first offence or alleged offence; 25 (j) any submission made by the person to the commissioner in 26 relation to the matters mentioned in paragraphs (a) to (i). Working with Vulnerable People (Background Checking) page 27 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.3 Conducting risk assessments Section 29 1 29 Risk assessment guidelines--other information 2 The risk assessment guidelines must provide for the following to be 3 taken into account in relation to any other information the 4 commissioner believes on reasonable grounds is or may be relevant 5 in deciding whether, in engaging in a regulated activity, the 6 applicant poses a risk of harm to a vulnerable person: 7 (a) how the information was obtained; 8 Examples 9 1 tip off from a member of the public 10 2 a media report 11 Note An example is part of the Act, is not exhaustive and may extend, 12 but does not limit, the meaning of the provision in which it 13 appears (see Legislation Act, s 126 and s 132). 14 (b) the relevance of the information; 15 (c) the truthfulness, completeness and reliability of the 16 information; 17 (d) any submission made by the person to the commissioner in 18 relation to the matters mentioned in paragraphs (a) to (c). 19 Division 5.3 Conducting risk assessments 20 30 Risk assessments 21 (1) On application by a person for registration, the commissioner must 22 conduct a risk assessment for the person. 23 Note The commissioner need not conduct a risk assessment if the application 24 has been withdrawn (see s 18 (2) (b)). 25 (2) The risk assessment must be conducted in accordance with the risk 26 assessment guidelines. page 28 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Negative risk assessments Division 5.4 Section 31 1 31 Commissioner may seek information from entities to 2 conduct risk assessments 3 The commissioner may seek information or advice from any entity 4 the commissioner considers may be able to give information or 5 advice that will assist the commissioner in conducting a risk 6 assessment for a person. 7 Examples--entity 8 1 the chief police officer 9 2 a government department 10 3 an employer for a regulated activity 11 Note An example is part of the Act, is not exhaustive and may extend, but 12 does not limit, the meaning of the provision in which it appears (see 13 Legislation Act, s 126 and s 132). 14 Division 5.4 Negative risk assessments 15 32 Proposed negative notices 16 (1) This section applies if-- 17 (a) the commissioner conducts a risk assessment for a person; and 18 (b) the commissioner is satisfied that the person poses an 19 unacceptable risk of harm to a vulnerable person (a negative 20 risk assessment). 21 (2) The commissioner must tell the person in writing (a proposed 22 negative notice) that the commissioner intends to refuse to register 23 the person. 24 (3) A proposed negative notice must state-- 25 (a) the reasons for the negative risk assessment; and 26 (b) that, if the person believes the negative risk assessment has 27 been made because of incomplete or incorrect information, the 28 person may, take the steps mentioned in section 33 (2); and Working with Vulnerable People (Background Checking) page 29 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.4 Negative risk assessments Section 33 1 (c) that, if the person does not take the steps mentioned in 2 section 33 (2), the commissioner must give the person a 3 negative notice. 4 (4) The commissioner must not tell a named employer-- 5 (a) that a proposed negative notice has been given to a person; or 6 (b) the reasons for giving the person the notice. 7 33 Reconsideration of negative risk assessments 8 (1) This section applies if-- 9 (a) the commissioner gives a person a proposed negative notice; 10 and 11 (b) the person believes the negative risk assessment has been made 12 because of incomplete or incorrect information. 13 (2) The person may-- 14 (a) within 14 days after the day the commissioner gives the person 15 the proposed negative notice, tell the commissioner in writing 16 that the person intends to ask the commissioner to reconsider 17 the application based on new or corrected information; and 18 (b) within 1 month after the day the commissioner gives the person 19 the notice -- 20 (i) give the commissioner any new or corrected information 21 the person believes is relevant; and 22 (ii) ask the commissioner to reconsider the application based 23 on the information. page 30 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Negative risk assessments Division 5.4 Section 34 1 (3) If the person asks the commissioner to reconsider the application, 2 the commissioner must, as soon as practicable, conduct a risk 3 assessment (a revised risk assessment) considering the new or 4 corrected information. 5 Note A revised risk assessment may result in registration (see s 36), which 6 may be conditional (see s 37), or a negative notice (see s 35). 7 34 Extensions of period for reconsideration of negative risk 8 assessment 9 (1) On written application by a person, the commissioner may extend 10 the period mentioned in section 33 (2) (a) or (b). 11 Note The commissioner may extend the period even if it has ended (see 12 Legislation Act, s 151C). 13 (2) The commissioner may extend the period only if the commissioner 14 is satisfied on reasonable grounds that it is appropriate to extend the 15 period given the person's circumstances. 16 Examples--when period may be extended 17 1 a person did not receive a proposed negative notice because the person was 18 unexpectedly hospitalised 19 2 a person needs more than 1 month to obtain relevant information because the 20 information is from a foreign country 21 Note An example is part of the Act, is not exhaustive and may extend, but 22 does not limit, the meaning of the provision in which it appears (see 23 Legislation Act, s 126 and s 132). 24 (3) The commissioner must tell the person in writing of a decision 25 under subsection (1) and-- 26 (a) if the commissioner extends the period--state the extended 27 period; or Working with Vulnerable People (Background Checking) page 31 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 5.4 Negative risk assessments Section 35 1 (b) if the commissioner refuses to extend the period--the reasons 2 for the decision. 3 Note The commissioner must also give the person a reviewable decision 4 notice in relation to a decision to-- 5 (a) extend the period for a stated period; or 6 (b) refuse to extend the period (see s 55). 7 35 Negative notices 8 (1) The commissioner must refuse to register a person-- 9 (a) if-- 10 (i) the commissioner conducts a revised risk assessment for a 11 person; and 12 (ii) the commissioner is satisfied that the person poses an 13 unacceptable risk of harm to a vulnerable person; or 14 (b) if the commissioner gives the person a proposed negative 15 notice and-- 16 (i) the person does not tell the commissioner that the person 17 intends to ask the commissioner to reconsider the 18 application under section 33 (2) (a); or 19 (ii) the person-- 20 (A) tells the commissioner that the person intends to ask 21 the commissioner to reconsider the application under 22 section 33 (2) (a); but 23 (B) does not give the commissioner any new or 24 corrected information or ask the commissioner to 25 reconsider the application under section 33 (2) (b). page 32 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Negative risk assessments Division 5.4 Section 35 1 (2) If the commissioner refuses to register a person, the commissioner 2 must-- 3 (a) tell the person in writing (a negative notice) that the 4 commissioner refuses to register the person and the reasons for 5 the refusal; and 6 Note The commissioner must also give the person a reviewable 7 decision notice in relation to the decision (see s 55). 8 (b) tell the named employer (if any) in writing that a negative 9 notice has been given to the person. 10 (3) For subsection (2) (b), the commissioner must not tell a named 11 employer the reasons for giving the person the negative notice. 12 Note If an unregistered person engaging in a regulated activity under s 14 is 13 given a negative notice, the person commits an offence under s 12 if the 14 person continues to engage in the activity. Working with Vulnerable People (Background Checking) page 33 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.1 Registration Section 36 1 Part 6 Registration 2 Division 6.1 Registration 3 36 Registration 4 (1) This section applies if the commissioner-- 5 (a) conducts a risk assessment or a revised risk assessment for a 6 person; and 7 (b) is satisfied that the person poses no risk or an acceptable risk of 8 harm to a vulnerable person (a positive risk assessment). 9 (2) The commissioner must-- 10 (a) register the person; and 11 (b) tell the person in writing of the positive risk assessment and 12 that the person has been registered; and 13 (c) tell the named employer (if any) in writing that the person has 14 been registered. 15 (3) Registration must be for not longer than 3 years. 16 37 Conditional registration 17 (1) A registration may be subject to conditions. 18 Examples--conditions 19 1 a registered person must not drive a motor vehicle if a vulnerable person is a 20 passenger 21 2 a registered person must not have unsupervised contact with a vulnerable 22 person 23 3 a registered person must not supervise another registered person page 34 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Registration Division 6.1 Section 38 1 4 a registered person may be engaged by any employer but only in a stated 2 regulated activity 3 Note An example is part of the Act, is not exhaustive and may extend, but 4 does not limit, the meaning of the provision in which it appears (see 5 Legislation Act, s 126 and s 132). 6 (2) Without limiting subsection (1), the commissioner may register a 7 person (a position-based registration) subject to the conditions that 8 the person may engage only in stated regulated activities for a stated 9 employer. 10 Example--position-based registration 11 a person with a criminal record is registered but may only work as a counsellor in 12 a particular correctional centre 13 (3) A regulation may prescribe information that a person or an 14 employer must give the commissioner before the commissioner may 15 give the person a position-based registration. 16 38 Proposed conditional registration 17 (1) If the commissioner intends to register a person conditionally, the 18 commissioner must tell the person in writing (a proposed 19 conditional registration notice). 20 (2) A proposed conditional registration notice must state-- 21 (a) what the condition is and the reasons for proposing to register 22 the person conditionally; and 23 (b) that, if the person believes the commissioner is proposing to 24 register the person conditionally because of incomplete or 25 incorrect information, the person may take the steps mentioned 26 in section 39 (2); and 27 (c) that if the person does not take the steps mentioned in 28 section 39 (2), the commissioner must register the person 29 conditionally. Working with Vulnerable People (Background Checking) page 35 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.1 Registration Section 39 1 (3) The commissioner must not tell a named employer-- 2 (a) that a proposed conditional registration notice has been given 3 to a person; or 4 (b) the reasons for giving the person the proposed conditional 5 registration notice. 6 39 Reconsideration of proposed conditional registration 7 (1) This section applies if-- 8 (a) the commissioner gives a person a proposed conditional 9 registration notice; and 10 (b) the person believes the commissioner is proposing to register 11 the person conditionally because of incomplete or incorrect 12 information. 13 (2) The person may-- 14 (a) within 14 days after the day the commissioner gives the person 15 the proposed conditional registration notice, tell the 16 commissioner in writing that the person intends to ask the 17 commissioner to reconsider the application based on new or 18 corrected information; and 19 (b) within 1 month after the day the commissioner gives the person 20 the notice-- 21 (i) give the commissioner any new or corrected information 22 the person believes is relevant; and 23 (ii) ask the commissioner to reconsider the application based 24 on the information. 25 (3) If the person asks the commissioner to reconsider the application, 26 the commissioner must, as soon as practicable-- 27 (a) consider the new or corrected information; and page 36 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Registration Division 6.1 Section 40 1 (b) either-- 2 (i) the commissioner is satisfied that the condition is 3 unnecessary--register the person unconditionally; or 4 (ii) the commissioner is satisfied that the condition is 5 necessary--register the person subject to the condition. 6 Note The commissioner's decision to register a person subject to 7 a condition is reviewable (see s 54). 8 40 Extensions of period for reconsideration of proposed 9 conditional registration 10 (1) On written application by a person, the commissioner may extend 11 the period mentioned in section 39 (2) (a) or (b). 12 Note The commissioner may extend the period even if it has ended (see 13 Legislation Act, s 151C). 14 (2) The commissioner may extend the period only if the commissioner 15 is satisfied on reasonable grounds that it is appropriate to extend the 16 period given the person's circumstances. 17 Examples--when period may be extended 18 1 a person did not receive a proposed conditional registration notice because 19 the person was unexpectedly hospitalised 20 2 a person needs more than 1 month to obtain relevant information because the 21 information is from a foreign country 22 Note An example is part of the Act, is not exhaustive and may extend, but 23 does not limit, the meaning of the provision in which it appears (see 24 Legislation Act, s 126 and s 132). 25 (3) The commissioner must tell the person in writing of a decision 26 under subsection (1) and-- 27 (a) if the commissioner extends the period--state the extended 28 period; or Working with Vulnerable People (Background Checking) page 37 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.1 Registration Section 41 1 (b) if the commissioner refuses to extend the period--the reasons 2 for the decision. 3 Note The commissioner must also give the person a reviewable decision 4 notice in relation to a decision to-- 5 (a) extend the period for a stated period; or 6 (b) refuse to extend the period (see s 55). 7 41 Notice of conditional registration 8 (1) The commissioner must register a person subject to a condition if 9 the commissioner gives the person a proposed conditional 10 registration notice and-- 11 (a) the person does not tell the commissioner that the person 12 intends to ask the commissioner to reconsider the application 13 under section 39 (2) (a); or 14 (b) the person-- 15 (i) tells the commissioner that the person intends to ask the 16 commissioner to reconsider the application under 17 section 39 (2) (a); but 18 (ii) does not give the commissioner any new or corrected 19 information or ask the commissioner to reconsider the 20 application under section 39 (2) (b). 21 Note The commissioner must also register a person subject to a condition if 22 the commissioner has reconsidered the application based on new or 23 corrected information and is satisfied that the condition is necessary 24 (see s 39 (3) (b) (ii)). 25 (2) If a registration is subject to a condition, the commissioner must-- 26 (a) tell the person in writing what the condition is and the reasons 27 for the condition; and 28 Note The commissioner must also give the person a reviewable 29 decision notice in relation to the decision to register the person 30 subject to a condition (see s 55). page 38 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Registration Division 6.1 Section 42 1 (b) tell the named employer (if any) in writing-- 2 (i) that the person's registration is subject to a condition; and 3 (ii) what the condition is. 4 42 Offences--registered person contravene condition of 5 registration 6 (1) A person commits an offence if-- 7 (a) the person's registration is subject to a condition; and 8 (b) the person contravenes a requirement of the condition. 9 Maximum penalty: 50 penalty units, imprisonment for 6 months or 10 both. 11 (2) An offence against subsection (1) is a strict liability offence. 12 (3) A person commits an offence if-- 13 (a) the person's registration is subject to a condition; and 14 (b) the person contravenes a requirement of the condition; and 15 (c) the person knows, or is reckless about whether, the person is 16 contravening the requirement. 17 Maximum penalty: 200 penalty units, imprisonment for 2 years or 18 both. 19 (4) Strict liability applies to subsection (3) (a). 20 Note The commissioner may suspend or cancel a person's registration if the 21 person's registration is subject to a condition and the person 22 contravenes a requirement of the condition (see s 51 (1)). Working with Vulnerable People (Background Checking) page 39 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.2 Registration cards Section 43 1 Division 6.2 Registration cards 2 43 Registration cards 3 (1) If the commissioner registers a person, the commissioner must give 4 the person a working with vulnerable people registration card 5 (a registration card). 6 (2) A registration card must contain-- 7 (a) a unique identifying number (a registration number); and 8 (b) the date the registration ends; and 9 (c) anything else prescribed by regulation. 10 44 Offence--fail to produce registration card 11 (1) A registered person commits an offence if the person-- 12 (a) engages in a regulated activity; and 13 (b) is required to be registered to engage in the activity; and 14 (c) is asked to produce the person's registration card by-- 15 (i) a police officer; or 16 (ii) a person authorised by the commissioner; and 17 (d) does not produce the person's registration card. 18 Maximum penalty: 10 penalty units. 19 (2) An offence against this section is a strict liability offence. 20 45 Lost, stolen or damaged registration cards 21 (1) This section applies if a registration card given to a person is lost, 22 stolen or damaged. page 40 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Registration cards Division 6.2 Section 46 1 (2) The person may apply to the commissioner for a replacement card. 2 Note 1 If a form is approved under s 62 for this provision, the form must be 3 used. 4 Note 2 A fee may be determined under s 61 for this provision. 5 (3) The application must be accompanied by a statutory declaration 6 made by the applicant setting out the circumstances in which the 7 card was lost, stolen or damaged. 8 (4) If a person applies for a replacement card, the commissioner must-- 9 (a) replace the card; or 10 (b) refuse to replace the card. 11 Note The commissioner must give the person a reviewable decision 12 notice in relation to the decision to refuse to replace the card 13 (see s 55). 14 (5) The commissioner must replace the card if satisfied that-- 15 (a) the person held a registration card; and 16 (b) the card is lost, stolen or damaged. 17 46 Offence--fail to return registration card 18 (1) A person commits an offence if-- 19 (a) the person's registration is suspended or cancelled under 20 section 53; and 21 (b) the person does not return the person's registration card to the 22 commissioner as soon as practicable, but within 14 days, after 23 the day the suspension or cancellation takes effect. 24 Maximum penalty: 50 penalty units, imprisonment for 6 months or 25 both. 26 Note For when a suspension or cancellation takes effect, see s 53 (4). Working with Vulnerable People (Background Checking) page 41 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.3 Monitoring registered people Section 47 1 (2) Subsection (1) does not apply to a person if the person's card has 2 been-- 3 (a) lost or stolen; or 4 (b) destroyed by someone else. 5 Note The defendant has an evidential burden in relation to the matters 6 mentioned in s (2) (see Criminal Code, s 58). 7 (3) An offence against this section is a strict liability offence. 8 Division 6.3 Monitoring registered people 9 47 Commissioner may seek information from entities about 10 registered people 11 (1) The commissioner may seek information or advice from any entity 12 the commissioner considers may be able to give information or 13 advice that is relevant to whether a registered person continues to 14 pose no risk or an acceptable risk of harm to a vulnerable person. 15 Example 16 an updated criminal history report from the chief police officer 17 Note An example is part of the Act, is not exhaustive and may extend, but 18 does not limit, the meaning of the provision in which it appears (see 19 Legislation Act, s 126 and s 132). 20 (2) An entity may give information or advice in response to a request 21 under this section and, in doing so, does not contravene any duty of 22 confidentiality the entity has under any law or agreement, despite 23 anything to the contrary in the law or agreement. page 42 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Monitoring registered people Division 6.3 Section 48 1 48 Additional risk assessments 2 (1) This section applies if the commissioner believes on reasonable 3 grounds that there is new relevant information about a registered 4 person. 5 Examples--new relevant information 6 1 a registered person is suspected of having committed a relevant offence 7 2 a registered person has been charged with a relevant offence 8 3 a registered person has been convicted or found guilty of a relevant offence 9 Note An example is part of the Act, is not exhaustive and may extend, but 10 does not limit, the meaning of the provision in which it appears (see 11 Legislation Act, s 126 and s 132). 12 (2) The commissioner must-- 13 (a) conduct a risk assessment (an additional risk assessment) for 14 the person taking into account the new relevant information; 15 and 16 (b) tell the person in writing that the additional risk assessment is 17 being conducted. 18 Note If the commissioner decides to conduct an additional risk assessment for 19 a person, the commissioner may suspend the person's registration while 20 the assessment is conducted (see s 51 (2)). 21 (3) If the commissioner conducts an additional risk assessment for the 22 person and is satisfied that that the person poses no risk or an 23 acceptable risk of harm to a vulnerable person, the commissioner 24 may-- 25 (a) leave the person's registration unchanged; or Working with Vulnerable People (Background Checking) page 43 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.3 Monitoring registered people Section 49 1 (b) make the person's registration conditional. 2 Note 1 Section 38 sets out the commissioner's obligations if the commissioner 3 intends to register a person conditionally. 4 Note 2 The commissioner must cancel a person's registration if the 5 commissioner has conducted an additional risk assessment for the 6 person and is satisfied that that the person poses an unacceptable risk of 7 harm to a vulnerable person (see s 51 (3)). 8 (4) The risk assessment guidelines may provide for what constitutes 9 new relevant information about a registered person. 10 49 Offences--registered person fail to disclose charge, 11 conviction or finding of guilt for relevant offence 12 (1) A person commits an offence if the person-- 13 (a) is registered; and 14 (b) is charged with a relevant offence; and 15 (c) does not tell the commissioner about the charge in writing 16 within 14 days after the day the person is charged. 17 Maximum penalty: 50 penalty units, imprisonment for 6 months or 18 both. 19 (2) A person commits an offence if the person-- 20 (a) is registered; and 21 (b) is convicted or found guilty of a relevant offence; and 22 (c) does not tell the commissioner about the conviction or finding 23 of guilt in writing within 14 days after the day the person is 24 convicted or found guilty. 25 Maximum penalty: 50 penalty units, imprisonment for 6 months or 26 both. 27 (3) An offence against this section is a strict liability offence. page 44 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Suspending or cancelling registration Division 6.4 Section 50 1 50 Offence--fail to notify change of name or address 2 (1) A person commits an offence if-- 3 (a) the person is registered; and 4 (b) the person's name or address changes; and 5 (c) the person does not tell the commissioner in writing of the 6 change within 14 days after the day the change happens. 7 Maximum penalty: 10 penalty units. 8 Note If a form is approved under s 62 for this provision, the form must be 9 used. 10 (2) An offence against this section is a strict liability offence. 11 Division 6.4 Suspending or cancelling registration 12 51 Grounds for suspension or cancellation of registration 13 (1) The commissioner may suspend or cancel a person's registration 14 if-- 15 (a) the person's registration is subject to a condition; and 16 (b) the person contravenes a requirement of the condition; and 17 (c) the commissioner believes on reasonable grounds that 18 suspension or cancellation is necessary for this Act. 19 Note A person commits an offence if the person contravenes a requirement of 20 a condition--see s 42. 21 (2) If the commissioner decides to conduct an additional risk 22 assessment for a person, the commissioner may suspend the 23 person's registration while the assessment is conducted. 24 Note The commissioner may conduct an additional risk assessment for a 25 person under s 48 if the commissioner believes on reasonable grounds 26 that there is new relevant information about the person. Working with Vulnerable People (Background Checking) page 45 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Division 6.4 Suspending or cancelling registration Section 52 1 (3) The commissioner must cancel a person's registration if the 2 commissioner-- 3 (a) has conducted an additional risk assessment for the person; and 4 (b) is satisfied that the person poses an unacceptable risk of harm 5 to a vulnerable person. 6 52 Notice of proposed suspension or cancellation of 7 registration 8 (1) The commissioner must give written notice of an intention to 9 suspend or cancel a person's registration to the person. 10 (2) A notice of intention to suspend or cancel a person's registration 11 must-- 12 (a) set out the ground for suspension or cancellation; and 13 (b) state that the person may, within 14 days after the day the 14 commissioner gives the person the notice, give reasons why the 15 person considers that the registration should not be suspended 16 or cancelled. 17 53 Suspension or cancellation of registration 18 (1) The commissioner must suspend or cancel a person's registration if 19 the commissioner-- 20 (a) has given written notice to the person of an intention to 21 suspend or cancel the registration; and 22 (b) has considered any reasons given by the person in accordance 23 with the notice; and 24 (c) is satisfied that the ground for suspension or cancellation under 25 section 51 exists. 26 Note The commissioner's decision to suspend or cancel a person's 27 registration is reviewable (see s 54). page 46 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Suspending or cancelling registration Division 6.4 Section 53 1 (2) The commissioner must-- 2 (a) tell the person in writing-- 3 (i) that the person's registration is suspended or cancelled; 4 and 5 (ii) the ground for suspension or cancellation; and 6 Note The commissioner must also give the person a reviewable 7 decision notice in relation to the decision to suspend or cancel the 8 person's registration (see s 55). 9 (b) tell the person's employer (if any) in writing that the person's 10 registration has been suspended or cancelled. 11 (3) For subsection (2) (b), the commissioner must not tell the person's 12 employer the ground for suspension or cancellation. 13 (4) The suspension or cancellation takes effect-- 14 (a) on the day after the day the commissioner tells the person in 15 writing that the person's registration is suspended or cancelled; 16 or 17 (b) if a later date is stated in the notice of suspension or 18 cancellation--the later date. 19 (5) To remove any doubt, a person whose registration is suspended does 20 not have a registration allowing the person to engage in a regulated 21 activity. 22 Note A person engaging in a regulated activity for which the person is 23 required to be registered commits an offence under s 12 if the person's 24 registration is suspended or cancelled and the person continues to 25 engage in the activity. Working with Vulnerable People (Background Checking) page 47 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 54 1 Part 7 Notification and review of 2 decisions 3 54 Meaning of reviewable decision--pt 7 4 In this part: 5 reviewable decision means a decision mentioned in 6 schedule 2, column 3 under a provision of this Act mentioned in 7 column 2 in relation to the decision. 8 55 Reviewable decision notices 9 If the commissioner makes a reviewable decision, the commissioner 10 must give a reviewable decision notice only to each entity 11 mentioned in schedule 2, column 4 in relation to the decision. 12 Note The requirements for a reviewable decision notice are prescribed under 13 the ACT Civil and Administrative Tribunal Act 2008. 14 56 Applications for review 15 An entity mentioned in schedule 2, column 4 in relation to a 16 reviewable decision may apply to the ACAT for review of the 17 decision. 18 Note If a form is approved under the ACT Civil and Administrative Tribunal 19 Act 2008 for the application, the form must be used. page 48 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 57 1 Part 8 Miscellaneous 2 57 Protection from liability 3 (1) An official is not civilly liable for anything done or omitted to be 4 done honestly and without recklessness-- 5 (a) in the exercise of a function under this Act; or 6 (b) in the reasonable belief that the act or omission was in the 7 exercise of a function under this Act. 8 (2) Any civil liability that would, apart from subsection (1), attach to an 9 official attaches instead to the Territory. 10 (3) In this section: 11 official means-- 12 (a) the commissioner; or 13 (b) a person authorised under this Act by the commissioner to do 14 or not to do a thing. 15 Note A reference to an Act includes a reference to the statutory instruments 16 made or in force under the Act, including any regulation (see 17 Legislation Act, s 104). 18 58 Offences--use or divulge protected information 19 (1) A person to whom this section applies commits an offence if-- 20 (a) the person uses information; and 21 (b) the information is protected information about someone else; 22 and Working with Vulnerable People (Background Checking) page 49 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 58 1 (c) the person is reckless about whether the information is 2 protected information about someone else. 3 Maximum penalty: 50 penalty units, imprisonment for 6 months or 4 both. 5 (2) A person to whom this section applies commits an offence if-- 6 (a) the person does something that divulges information; and 7 (b) the information is protected information about someone else; 8 and 9 (c) the person is reckless about whether-- 10 (i) the information is protected information about someone 11 else; and 12 (ii) doing the thing would result in the information being 13 divulged to someone else. 14 Maximum penalty: 50 penalty units, imprisonment for 6 months or 15 both. 16 (3) Subsections (1) and (2) do not apply if the information is used or 17 divulged-- 18 (a) under this Act or another territory law; or 19 (b) in relation to the exercise of a function, as a person to whom 20 this section applies, under this Act or another territory law; or 21 (c) in a court proceeding. 22 (4) Subsections (1) and (2) do not apply to the using or divulging of 23 protected information about a person with the person's consent. 24 Note The defendant has an evidential burden in relation to the matters 25 mentioned in ss (3) and (4) (see Criminal Code, s 58). page 50 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 58 1 (5) A person to whom this section applies need not divulge protected 2 information to a court, or produce a document containing protected 3 information to a court, unless it is necessary to do so for this Act or 4 another law applying in the territory. 5 (6) In this section: 6 court includes a tribunal, authority or person having power to 7 require the production of documents or the answering of questions. 8 divulge includes-- 9 (a) communicate; or 10 (b) publish 11 person to whom this section applies means-- 12 (a) a person who is or has been the commissioner; or 13 (b) anyone else who has exercised a function under this Act. 14 produce includes allow access to. 15 protected information means information about a person that is 16 disclosed to, or obtained by, a person to whom this section applies 17 because of the exercise of a function under this Act by the person or 18 someone else. 19 Examples--protected information 20 1 information obtained by the commissioner in conducting a risk assessment 21 for a person 22 2 information disclosed by the commissioner in seeking information or advice 23 from an entity about a registered person 24 Note An example is part of the Act, is not exhaustive and may extend, but 25 does not limit, the meaning of the provision in which it appears (see 26 Legislation Act, s 126 and s 132). 27 use information includes make a record of the information. Working with Vulnerable People (Background Checking) page 51 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 59 1 59 Evidentiary certificates 2 (1) The commissioner may give a signed certificate-- 3 (a) stating that on a stated date or during a stated period a named 4 person was or was not registered; and 5 (b) if the person was registered--including details of the person's 6 registration. 7 (2) A certificate under this section is evidence of the matters stated in it. 8 (3) Unless the contrary is proved, a document that purports to be a 9 certificate under this section is taken to be a certificate. 10 60 Disqualification orders 11 (1) If a court finds a person guilty of an offence against this Act, the 12 court may make an order disqualifying the person from applying for 13 registration for a stated period or until a stated thing happens. 14 (2) In this section: 15 offence against this Act includes an offence against the Criminal 16 Code in relation to anything done, or not done, under or in relation 17 to this Act. 18 61 Determination of fees 19 (1) The Minister may determine fees for this Act. 20 Note The Legislation Act contains provisions about the making of 21 determinations and regulations relating to fees (see pt 6.3) 22 (2) A determination is a disallowable instrument. 23 Note A disallowable instrument must be notified, and presented to the 24 Legislative Assembly, under the Legislation Act. page 52 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 62 1 62 Approved forms 2 (1) The commissioner may approve forms for this Act. 3 (2) If the commissioner approves a form for a particular purpose, the 4 approved form must be used for the purpose. 5 Note For other provisions about forms, see the Legislation Act, s 255. 6 (3) An approved form is a notifiable instrument. 7 Note A notifiable instrument must be notified under the Legislation Act. 8 63 Review of Act 9 (1) The Minister must, as soon as practicable after the end of this Act's 10 5th year of operation-- 11 (a) review the operation of the Act; and 12 (b) present a report of the review to the Legislative Assembly. 13 Note A reference to an Act includes a reference to the statutory instruments 14 made or in force under the Act, including any regulation (see 15 Legislation Act, s 104). 16 (2) This section expires 6 years after the day it commences. 17 64 Regulation-making power 18 (1) The Executive may make regulations for this Act. 19 Note A regulation must be notified, and presented to the Legislative 20 Assembly, under the Legislation Act. 21 (2) Without limiting subsection (1), a regulation may make provision 22 for-- 23 (a) the obligations of employers before engaging people in 24 regulated activities; and 25 (b) the obligations of employers in relation to people they engage 26 in regulated activities. Working with Vulnerable People (Background Checking) page 53 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Section 65 1 (3) A regulation may create offences and fix maximum penalties of not 2 more than 20 penalty units for the offences. 3 65 Fair Trading (Consumer Affairs) Act 1973, dictionary, 4 definition of fair trading legislation, new paragraph (f) 5 insert 6 (f) the Working with Vulnerable People (Background Checking) 7 Act 2010. page 54 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Activities or services for children Part 1.1 Section 1.1 1 Schedule 1 Regulated activities 2 (see s 7) 3 Part 1.1 Activities or services for children 4 1.1 Child protection services 5 (1) An activity or service is a regulated activity if the activity is 6 conducted, or the service is provided, under the Children and Young 7 People Act 2008 for a child or young person. 8 (2) Without limiting subsection (1), a regulated activity includes an 9 activity conducted or a service provided under the Children and 10 Young People Act 2008-- 11 (a) by-- 12 (i) a member of the Children and Youth Services Council; or 13 (ii) a family group conference facilitator; or 14 (iii) a kinship carer; or 15 (iv) a foster carer; or 16 (v) a residential care service; or 17 (vi) a researcher for a research project; or 18 (vii) an authorised assessor; or 19 (viii) another person administering, or exercising a function 20 under, the Act; or 21 (b) under a therapeutic protection order. 22 Note See the Children and Young People Act 2008, particularly: 23 · pt 2.2 (Children and Youth Services Council); 24 · pt 3.2 (Family group conferences--facilitators); Working with Vulnerable People (Background Checking) page 55 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.1 Activities or services for children Section 1.2 1 · s 438 (Care and protection assessment--authorisation of 2 assessors); 3 · s 509 (Who is a kinship carer?); 4 · s 510 (Who is a foster carer?); 5 · s 511 (What is a residential care service?); 6 · pt 16.2 (Therapeutic protection orders); 7 · ch 22 (Research involving children and young people). 8 1.2 Childcare service 9 (1) An activity or service is a regulated activity if the activity is 10 conducted, or the service is provided, by-- 11 (a) a childcare service; or 12 (b) another commercial service that provides child care. 13 Examples--par (b) 14 1 babysitting service 15 2 nanny service 16 3 a service conducted by a hotel or resort to provide childcare to children 17 who are short term guests 18 Note An example is part of the Act, is not exhaustive and may extend, 19 but does not limit, the meaning of the provision in which it 20 appears (see Legislation Act, s 126 and s 132). 21 (2) In this section: 22 childcare service--see the Children and Young People Act 2008, 23 section 732. 24 Note Childcare service means-- 25 (a) a childcare centre; or 26 (b) a family day care scheme. 27 1.3 Child education services 28 (1) An activity or service is a regulated activity if the activity is 29 conducted, or the service is provided, as part of a child education 30 service. page 56 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Activities or services for children Part 1.1 Section 1.4 1 (2) In this section: 2 child education service-- 3 (a) means a service for which the main purpose is to provide 4 education and care for children; and 5 (b) includes-- 6 (i) a school or other educational institution, whether or not 7 operated by or on behalf of the Territory; and 8 (ii) a school-crossing service. 9 school means a preschool, primary school, high school or secondary 10 college. 11 1.4 Child accommodation services 12 (1) An activity or service is a regulated activity if the activity is 13 conducted, or the service is provided, as part of a child 14 accommodation service. 15 (2) In this section: 16 child accommodation service-- 17 (a) means a service for which the main purpose is to provide 18 residential accommodation for children; and 19 (b) includes an overnight camp for children, irrespective of the 20 kind of accommodation or of how many children are involved. 21 Examples--child accommodation service 22 1 school group accommodation 23 2 a home stay, including as part of a student exchange 24 3 a school boarding facility 25 Note An example is part of the Act, is not exhaustive and may extend, but 26 does not limit, the meaning of the provision in which it appears (see 27 Legislation Act, s 126 and s 132). Working with Vulnerable People (Background Checking) page 57 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.1 Activities or services for children Section 1.5 1 1.5 Counselling and support services for children 2 An activity or service is a regulated activity if the activity is 3 conducted, or the service is provided, as part of-- 4 (a) a counselling service for children; or 5 (b) a support service for children. 6 1.6 Commercial services for children 7 An activity or service is a regulated activity if-- 8 (a) the activity is conducted, or the service is provided specifically 9 for children by a commercial entity; and 10 (b) the activity or service is one of the following: 11 (i) an entertainment or party service; 12 (ii) a gym or play facility; 13 (iii) a photography service; 14 (iv) a talent or beauty competition. page 58 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Activities or services for vulnerable people Part 1.2 Section 1.7 1 Part 1.2 Activities or services for 2 vulnerable people 3 1.7 Mental health 4 An activity or service is a regulated activity if any of the usual 5 functions of the activity or service include providing treatment, care, 6 rehabilitation or protection to people who are mentally impaired, 7 mentally dysfunctional or mentally ill. 8 Examples 9 1 an activity or service that provides personal care, assessment or referral of 10 support needs, education, training and skill development, information 11 services, recreation, counselling, community access, accommodation 12 support, rehabilitation, or employment services, specifically for people who 13 are mentally impaired, mentally dysfunctional or mentally ill 14 2 an activity or service provided in association with the use of premises for the 15 care, treatment or accommodation of people who are mentally impaired, 16 mentally dysfunctional or mentally ill 17 Note An example is part of the Act, is not exhaustive and may extend, but 18 does not limit, the meaning of the provision in which it appears (see 19 Legislation Act, s 126 and s 132). 20 1.8 Migrants, refugees and asylum seekers 21 An activity or service is a regulated activity if the activity is 22 conducted, or the service is provided, to support-- 23 (a) migrants, or 24 (b) refugees or asylum seekers; or Working with Vulnerable People (Background Checking) page 59 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.2 Activities or services for vulnerable people Section 1.9 1 (c) people who cannot communicate, or who have difficulty 2 communicating, in English. 3 Examples 4 an activity or service that provides assistance settling in the ACT, including 5 mentoring, employment services, transport or accommodation support, 6 specifically for migrants, refugees, asylum seekers or people from non-English 7 speaking backgrounds 8 Note An example is part of the Act, is not exhaustive and may extend, but 9 does not limit, the meaning of the provision in which it appears (see 10 Legislation Act, s 126 and s 132). 11 1.9 Homeless people 12 An activity or service is a regulated activity if the activity is 13 conducted, or the service is provided, to support people who are 14 homeless. 15 Examples 16 1 an activity or service that provides food, transport, coordination or referral of 17 support needs for people who are homeless 18 2 a drop in centre 19 3 a soup kitchen 20 Note An example is part of the Act, is not exhaustive and may extend, but 21 does not limit, the meaning of the provision in which it appears (see 22 Legislation Act, s 126 and s 132). 23 1.10 Housing and accommodation 24 A service or activity is a regulated activity if any of the usual 25 functions of the service or activity include providing public or 26 community housing or accommodation to people suffering social or 27 financial hardship. 28 Examples 29 1 public housing 30 2 social housing 31 3 community housing 32 4 housing assistance page 60 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Activities or services for vulnerable people Part 1.2 Section 1.11 1 5 social housing 2 6 crisis accommodation 3 7 refuges 4 Note An example is part of the Act, is not exhaustive and may extend, but 5 does not limit, the meaning of the provision in which it appears (see 6 Legislation Act, s 126 and s 132). 7 1.11 Justice facilities 8 (1) An activity or service is a regulated activity if-- 9 (a) any of the usual functions of the activity or service are carried 10 out at a justice facility; or 11 (b) the activity is conducted, or the service is provided, because of 12 a sentence, detention, probation, parole or other order, that 13 could be made or imposed by the court. 14 (2) In this section: 15 justice facility means-- 16 (a) a correctional centre; or 17 (b) a remand centre; or 18 (c) a detention place; or 19 (d) a place outside a detention place if a detainee is, or has been, 20 directed to work or take part in an activity at the place; or 21 (e) any other place a person may be held in custody. Working with Vulnerable People (Background Checking) page 61 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.2 Activities or services for vulnerable people Section 1.12 1 1.12 Prevention of crime 2 An activity or service is a regulated activity if the activity is 3 conducted, or the service is provided, in relation to a person to 4 reduce the likelihood of the person committing a criminal offence. 5 Examples 6 1 a program to keep police informed of the whereabouts and other personal 7 details about a person who has committed a crime to reduce the likelihood 8 that the person will reoffend 9 2 a mentoring program 10 Note An example is part of the Act, is not exhaustive and may extend, but 11 does not limit, the meaning of the provision in which it appears (see 12 Legislation Act, s 126 and s 132). 13 1.13 Victims of crime 14 An activity or service is a regulated activity if the activity is 15 conducted, or the service is provided, to assist or support victims of 16 crime. 17 Example 18 an activity or service that provides counselling and support, therapeutic 19 intervention, financial assistance, information or advice for victims of crime 20 Note 1 Victims of crime are eligible for assistance under the victims services 21 scheme (see Victims of Crime Act 1994, pt 4). 22 Note 2 An example is part of the Act, is not exhaustive and may extend, but 23 does not limit, the meaning of the provision in which it appears (see 24 Legislation Act, s 126 and s 132). 25 1.14 Services for addictions 26 (1) An activity or service is a regulated activity if any of the usual 27 functions of the activity or service include providing treatment, care, 28 rehabilitation or protection to people who are-- 29 (a) addicted to, or misuse, a substance (whether alcohol, a 30 medicine, a prohibited substance or another substance); or page 62 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Activities or services for vulnerable people Part 1.2 Section 1.15 1 (b) addicted to an activity. 2 Examples--addictive activity 3 1 gambling 4 2 shopping 5 3 exercise 6 Examples--regulated activity 7 1 an activity or service that provides health care, counselling, accommodation 8 or financial support for people who are addicted to a substance or an activity 9 2 a detoxification support program, such as Alcoholics Anonymous 10 3 a needle and syringe exchange program 11 4 a methadone treatment and withdrawal program 12 5 a gambling addiction telephone help-line 13 Note An example is part of the Act, is not exhaustive and may extend, but 14 does not limit, the meaning of the provision in which it appears (see 15 Legislation Act, s 126 and s 132). 16 (2) In this section: 17 prohibited substance--see the Medicines, Poisons and Therapeutic 18 Goods Act 2008, section 13. 19 1.15 Community services 20 An activity or service is a regulated activity if the activity is 21 conducted, or the service is provided, to-- 22 (a) people and families suffering social or financial hardship; or 23 (b) people who need support to live independently. 24 Examples 25 1 an activity or service that provides crisis intervention, emergency relief, 26 parenting support, assessment or referral of support needs, education, 27 training and skill development, information services, counselling, 28 community access, or employment services, for people and families suffering 29 social or financial hardship Working with Vulnerable People (Background Checking) page 63 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.2 Activities or services for vulnerable people Section 1.16 1 2 an activity or service that provides home help, home maintenance or 2 modification, allied health care, personal care, food services, assessment or 3 referral of support needs, information services, coordination, case 4 management, recreation, counselling, community access, rehabilitation, or 5 employment services, to people who need support to live independently 6 3 an activity or service provided in association with the use of premises for the 7 care, treatment or accommodation of people who need support to live 8 independently 9 Note An example is part of the Act, is not exhaustive and may extend, but 10 does not limit, the meaning of the provision in which it appears (see 11 Legislation Act, s 126 and s 132). 12 1.16 Disability services 13 (1) An activity or service is a regulated activity if the activity is 14 conducted, or the service is provided, specifically for people with a 15 disability. 16 Examples 17 1 an activity or service that provides home help, home maintenance or 18 modification, personal care, food services, assessment or referral of support 19 needs, information services, coordination, case management, recreation, 20 counselling, community access, rehabilitation, or employment services, to 21 people with a disability 22 2 an activity or service provided in association with the use of premises for the 23 care, treatment or accommodation of people with a disability 24 Note An example is part of the Act, is not exhaustive and may extend, but 25 does not limit, the meaning of the provision in which it appears (see 26 Legislation Act, s 126 and s 132). 27 (2) In this section: 28 disability--see the Human Rights Commission Act, section 8 (2). 29 Note For the Human Rights Commission Act, s 8 (2), disability means a 30 disability that-- 31 (a) is attributable to an intellectual, psychiatric, sensory or physical 32 impairment, or a combination of those impairments; and 33 (b) is permanent or likely to be permanent; and page 64 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Activities or services for vulnerable people Part 1.2 Section 1.17 1 (c) results in-- 2 (i) the person having a substantially reduced capacity for 3 communication, learning or mobility; and 4 (ii) the need for continuing support services for the person; and 5 (d) may, but need not, be of a chronic episodic nature. 6 1.17 Respite care services 7 An activity or service is a regulated activity if any of the usual 8 functions of the activity or service include providing respite care. 9 1.18 Emergency services personnel 10 An activity or service is a regulated activity if the activity is 11 conducted, or the service is provided, by-- 12 (a) an emergency service; or 13 (b) a person acting on behalf of an emergency service. Working with Vulnerable People (Background Checking) page 65 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.3 Other activities or services for vulnerable people Section 1.19 1 Part 1.3 Other activities or services for 2 vulnerable people 3 1.19 Transport 4 An activity or service is a regulated activity if any of the usual 5 functions of the activity or service include providing public or 6 private transport that is-- 7 (a) specifically for, or mainly used by, children; or 8 (b) specifically for people accessing a regulated activity mentioned 9 in part 1.2. 10 Example--par (a) 11 a school bus service 12 Examples--par (b) 13 1 a minibus transporting detainees to or from a remand centre 14 2 a taxi for mobility impaired people 15 Note An example is part of the Act, is not exhaustive and may extend, but 16 does not limit, the meaning of the provision in which it appears (see 17 Legislation Act, s 126 and s 132). 18 (2) To remove any doubt, an activity or service is a regulated activity if 19 a person must have 1 or both of the following to conduct the activity 20 or provide the service: 21 (a) a public vehicle licence; 22 (b) a driving instructor certificate of accreditation. 23 Note 1 Public vehicle licence--see the Road Transport (Driver Licensing) 24 Act 1999, dictionary. 25 Note 2 For certificates of accreditation for driving instructors, see the Road 26 Transport (Driver Licensing) Regulation 2000, pt 7 (Accreditation of 27 driving instructors). page 66 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Other activities or services for vulnerable people Part 1.3 Section 1.20 1 1.20 Coaching and tuition 2 An activity or service is a regulated activity if-- 3 (a) any of the usual functions of the activity or service include 4 coaching or tuition specifically for-- 5 (i) children; or 6 (ii) people accessing a regulated activity mentioned in 7 part 1.2; and 8 (b) the coaching or tuition is provided by a commercial entity. 9 1.21 Vocational and educational training 10 An activity or service is a regulated activity if any of the usual 11 functions of the activity or service include providing vocational 12 education and training specifically for-- 13 (a) children; or 14 (b) people accessing a regulated activity mentioned in part 1.2. 15 Examples 16 1 a pathways to employment program 17 2 an adult English language, literacy and numeracy skills program 18 3 an industry training service 19 Note An example is part of the Act, is not exhaustive and may extend, but 20 does not limit, the meaning of the provision in which it appears (see 21 Legislation Act, s 126 and s 132). 22 1.22 Religious organisations 23 An activity or service is a regulated activity if-- 24 (a) the activity is conducted, or the service is provided, by-- 25 (i) a religious organisation; or 26 (ii) a person acting on behalf of a religious organisation; and Working with Vulnerable People (Background Checking) page 67 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] Part 1.3 Other activities or services for vulnerable people Section 1.23 1 (b) the activity or service is-- 2 (i) specifically for, or mainly used by children; or 3 (ii) specifically for people accessing a regulated activity 4 mentioned in part 1.2. 5 Example--par (a) 6 Sunday school 7 Example--par (b) 8 counselling provided by a minister of religion 9 Note An example is part of the Act, is not exhaustive and may extend, but 10 does not limit, the meaning of the provision in which it appears (see 11 Legislation Act, s 126 and s 132). 12 1.23 Clubs, associations and movements 13 An activity or service is a regulated activity if-- 14 (a) the activity is conducted, or the service is provided, by a club, 15 association or movement (including of a cultural, recreational 16 or sporting nature); and 17 (b) the club association or movement has significant membership 18 or involvement by-- 19 (i) children; or 20 (ii) people accessing a regulated activity mentioned 21 in part1.2. 22 Examples 23 1 a children's football team 24 2 an art class for people who require assistance to live independently 25 Note An example is part of the Act, is not exhaustive and may extend, but 26 does not limit, the meaning of the provision in which it appears (see 27 Legislation Act, s 126 and s 132). page 68 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Schedule 2 Reviewable decisions 2 (see pt 7) column 1 column 2 column 3 column 4 item section decision entity 1 34 (1) extend period for stated period person 2 34 (1) refuse to extend period person 3 35 (1) refuse to register person person 4 39 (3) (b) (ii) register person subject to condition person 5 40 (1) extend period for stated period person 6 40 (1) refuse to extend period person 7 41 (1) register person subject to condition person 8 45 (4) (b) refuse to replace person's registration card person 9 53 (1) suspend or cancel person's registration person Working with Vulnerable People (Background Checking) page 69 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Dictionary 2 (see s 3) 3 Note 1 The Legislation Act contains definitions and other provisions relevant to 4 this Act. 5 Note 2 For example, the Legislation Act, dict, pt 1, defines the following terms: 6 · ACAT 7 · ACT 8 · adult 9 · Australia 10 · change 11 · chief police officer 12 · child 13 · commissioner for fair trading 14 · contravene 15 · Corporations Act 16 · correctional centre 17 · Criminal Code 18 · detention place 19 · disallowable instrument (see s 9) 20 · document 21 · domestic partner (see s 169 (1)) 22 · emergency service 23 · entity 24 · found guilty 25 · function 26 · health practitioner 27 · home address 28 · lawyer 29 · Legislation Act 30 · notifiable instrument (see s 10) page 70 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 · penalty unit (see s 133) 2 · person (see s 160) 3 · police officer 4 · reviewable decision notice 5 · territory law 6 · the Territory 7 · writing. 8 additional risk assessment--see section 48 (2) (a). 9 commissioner means the commissioner for fair trading. 10 conditional registration means a registration that is subject to 11 conditions. 12 contact, between a person and a vulnerable person--see section 9. 13 corresponding law means-- 14 (a) a law of another jurisdiction corresponding, or substantially 15 corresponding, to this Act; or 16 (b) a law of another jurisdiction prescribed by regulation as a 17 corresponding law for this Act. 18 criminal history, about a person--see section 22. 19 employer, in relation to a regulated activity--see section 10. 20 engaged, in a regulated activity--see section 8. 21 jurisdiction means a State, the Commonwealth or an internal 22 Territory, including the ACT. 23 named employer, for a regulated activity--see section 16 (1) (d) (i). 24 negative notice--see section 35 (2) (a). 25 negative risk assessment--see section 32 (1) (b). 26 non-conviction information, about a person--see section 23. 27 position-based registration--see section 37 (2). Working with Vulnerable People (Background Checking) page 71 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 proposed conditional registration notice--see section 38 (1). 2 proposed interim negative notice--see section 32 (2). 3 proposed negative notice--see section 32 (2). 4 registration means a registration under this Act. 5 registration card--see section 43 (1). 6 registration number--see section 43 (2) (a). 7 regulated activity--see section 7. 8 relevant offence--see section 24. 9 reviewable decision, for part 4 (Notification and review of 10 decisions)--see section 54. 11 revised risk assessment--see section 33 (3). 12 risk assessment, for a person--see section 21. 13 risk assessment guidelines--see section 25. 14 spent, for a conviction--see the Spent Convictions Act 2000, 15 section 7. 16 vulnerable person--see section 6. page 72 Working with Vulnerable People (Background Checking) Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au [Page Break] 1 Presentation speech Presentation speech made in the Legislative Assembly on 2010. 2 Notification Notified under the Legislation Act on 2010. 3 Republications of amended laws For the latest republication of amended laws, see www.legislation.act.gov.au. © Australian Capital Territory 2010 Working with Vulnerable People (Background Checking) page 73 Bill 2010 Authorised by the ACT Parliamentary Counsel--also accessible at www.legislation.act.gov.au