New South Wales Consolidated Acts

COMMISSION FOR CHILDREN AND YOUNG PEOPLE ACT 1998 - SECT 33

33 Definitions

(1) In this Part:
"approved screening agency" means the Commission or an employer (or employer-related body) approved by the Minister as referred to in section 37 (4).
"child protection prohibition order" means a prohibition order within the meaning of the Child Protection (Offenders Prohibition Orders) Act 2004 , and includes an order which has expired or been revoked.
"child-related employment":

(a) means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised by a person having the capacity to direct the person in the course of the employment:

(i) employment involving the provision of child protection services,

(ii) employment in pre-schools, kindergartens and child care centres (including residential child care centres),

(iii) employment in schools or other educational institutions (not being universities),

(iv) employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987 ) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999 ),

(v) employment in refuges used by children,

(vi) employment in wards of public or private hospitals in which children are patients,

(vii) employment in clubs, associations, movements, societies, institutions or other bodies (including bodies of a cultural, recreational or sporting nature) having a significant child membership or involvement,

(viii) employment in any religious organisation,

(ix) employment in entertainment venues where the clientele is primarily children,

(x) employment as a babysitter or childminder that is arranged by a commercial agency,

(xi) employment involving fostering or other child care,

(xii) employment involving regular provision of taxi services for the transport of children with a disability,

(xiii) employment involving the private tuition of children,

(xiv) employment involving the direct provision of child health services,

(xv) employment involving the provision of counselling or other support services for children,

(xvi) employment on school buses,

(xvii) employment at overnight camps for children, and

(a1) means (without limiting paragraph (a)) any employment of the following kind:

(i) employment comprising the provision of an education and care service,

(ii) employment as a person involved in the control or management of an education and care service,

(iii) employment as a certified supervisor (within the meaning of the Children (Education and Care Services) National Law (NSW) ) in relation to an education and care service under that Law,

(iiia) employment as a certified supervisor (within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011 ) in relation to a State regulated education and care service under that Act,

(iv) employment as an assessment officer within the meaning of section 27A of the Children and Young Persons (Care and Protection) Act 1998 ,

(v) employment as the principal officer of a designated agency within the meaning of the Children and Young Persons (Care and Protection) Act 1998 ,

(vi) employment as the principal officer of an accredited adoption service provider within the meaning of the Adoption Act 2000 ,

(vii) employment as a self-employed person or as a subcontractor (by or on behalf of or in a relevant agency) if that employment involves direct contact with children and the contact is not directly supervised by a person having capacity to direct the self-employed person or subcontractor in the course of his or her work, and

(b) includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations.

"conviction" includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.
"education and care service" means an education and care service within the meaning of the Children (Education and Care Services) National Law (NSW) or a State regulated education and care service within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011 .
"employee" means any person who is engaged in employment.
"employer" includes:

(a) a person who, in the course of business, arranges for the placement of a person in employment with others, or

(b) a person who engages a person under a contract to perform work, or

(c) in the case of employment comprising the provision of an education and care service or the performance of work as a person involved in the control or management of an education and care service-the Director-General of the Department of Education and Communities.

"employer-related body" means any body that supervises, represents or has other functions with respect to an employer.
"employment" means (subject to the regulations):

(a) performance of work under a contract of employment, or

(b) performance of work as a self-employed person or as a subcontractor, or

(c) performance of work as a volunteer for an organisation, or

(d) undertaking practical training as part of an educational or vocational course, or

(e) performance of work as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer of a religion or other member of a religious organisation, or

(f) performance of the duties of an authorised carer within the meaning of the Children and Young Persons (Care and Protection) Act 1998 , or

(g) providing an education and care service, or

(h) performance of work as a person involved in the control or management of an education and care service.

"prohibited person" -see section 33B.
"relevant agency" means any of the following:

(a) the Department of Human Services,

(b) the Department of Education and Training,

(c) the TAFE Commission,

(d) any other agency or organisation prescribed by the regulations for the purposes of this definition.

Note: This definition is relevant for the purposes of paragraph (a1) (vii) of the definition of "child-related employment".

"relevant apprehended violence order" means (subject to subsection (6)) a final apprehended violence order made under the Crimes (Domestic and Personal Violence) Act 2007 , or a final order made under Part 15A of the Crimes Act 1900 before its repeal, being an order made on the application of a police officer or other public official for the protection of a child (or a child and others).
"relevant criminal record" means (subject to subsections (7) and (8)) the criminal record of a person with respect to an offence involving reportable conduct or any sexual offence, or an offence an element of which is an intention to commit such an offence, or an offence of attempting, or of conspiracy or incitement, to commit any of the preceding offences:

(a) that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or

(b) that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales,

and includes the criminal record of a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000 , but only in relation to registrable offences within the meaning of that Act.
"relevant employment proceedings" means proceedings (including disciplinary proceedings), in this State or elsewhere, against an employee by the employer or by a professional or other body that supervises the professional conduct of the employee, being proceedings involving:

(a) reportable conduct by the employee, or

(b) an act of violence committed by the employee in the course of employment and in the presence of a child.

"reportable conduct" means:

(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child, or

(aa1) any offence or misconduct involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900 ), or

(a1) any child pornography offence or misconduct involving child pornography, or

(a2) any child-related personal violence offence (within the meaning of Division 2), or

(a3) an offence under section 91J, 91K, 91L or 91M of the Crimes Act 1900 committed against, with or in the presence of a child, or

(a4) an offence that was reportable conduct at the time that it was committed, or

(b) any assault, ill-treatment or neglect of a child, or

(c) any behaviour that causes psychological harm to a child,

whether or not, in any case, with the consent of the child. Reportable conduct does not extend to:

(a) conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or

(b) the use of physical force that, in all the circumstances, is trivial or negligible, but only if the employer is an agency to which Part 3A of the Ombudsman Act 1974 applies and the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or

(c) conduct of a class or kind that is exempted from being reportable conduct by the guidelines under section 35.

Note: Examples of conduct that would not constitute "reportable conduct" include (without limitation) touching a child in order to attract a child’s attention, to guide a child or to comfort a distressed child; a school teacher raising his or her voice in order to attract attention or to restore order in the classroom; and conduct that is established to be accidental.

(3) For the avoidance of doubt, the performance of the duties of a foster carer engaged by the Department of Human Services or by any foster care agency constitutes employment for the purposes of this Part.

(5) For the purposes of this Act, section 579 of the Crimes Act 1900 does not apply to or in respect of an offence referred to in the definition of "relevant criminal record" in subsection (1).

(6) The following are not relevant apprehended violence orders:

(a) an apprehended violence order made by a court before 3 July 1995 under Part 15A of the Crimes Act 1900 ,

(b) an external protection order (within the meaning of section 562RA of the Crimes Act 1900 ) made before 3 July 1995,

(c) an external protection order (within the meaning of Part 13 of the Crimes (Domestic and Personal Violence) Act 2007 ) that is not registered under that Part.

(7) The following offences are not part of the relevant criminal record of a person:

(a) an offence that was a serious sex offence at the time of its commission if the conduct constituting the offence has ceased to be an offence in New South Wales,

(b) an offence involving sexual activity or an act of indecency if the conduct constituting the offence occurred in a public place and would not have constituted an offence in New South Wales if the place were not a public place.

(8) A criminal record is not a relevant criminal record if:

(a) the record relates to a registrable offence within the meaning of the Child Protection (Offenders Registration) Act 2000 that was committed elsewhere than in New South Wales, and

(b) the Commission, or an employer or employer-related body, is unable to obtain access to the record (whether because the record cannot be released under the law of the jurisdiction in which the offence concerned was committed or for any other reason).