New South Wales Consolidated Acts

COMMISSION FOR CHILDREN AND YOUNG PEOPLE ACT 1998 - SECT 37

37 Background checking mandatory for preferred applicants for certain child-related employment

(1) This section applies to any decision by an employer to employ a person in primary child-related employment, being a person not already employed by the employer in child-related employment of that kind.

(2) It is the duty of an employer to carry out all the relevant procedures of background checking of the preferred applicant before employing the preferred applicant in that child-related employment.

(3) Some or all of the procedures of background checking may be deferred in a particular case if the employer can establish that it was not reasonably practicable to carry out those procedures in the circumstances. In that case, those procedures are to be carried out as soon as reasonably practicable after the person is employed.

(4) An employer may engage:

(a) the Commission, or

(b) an employer (or employer-related body) approved by the Minister,

to carry out all or any of the relevant procedures of background checking on its behalf.

(4A) An employer is taken to have fulfilled the employer’s obligations in relation to carrying out a procedure referred to in section 34 (a) and section 34 (c) (to the extent that it relates to a procedure referred to in section 34 (a)) if:

(a) the employer engages an approved screening agency to carry out those procedures, and

(b) the employer receives the results of carrying out those procedures from that agency.

(4B) For the purposes of this section, an employer or an approved screening agency need only carry out such of the procedures referred to in section 34 (a) and section 34 (c) (to the extent that it relates to a procedure referred to in section 34 (a)) in relation to an applicant for employment as are required by this Division, and as are able, to be carried out:

(a) at the time the person is being considered for employment, or

(b) if the carrying out of the procedures has been deferred as referred to in subsection (3), at the time those procedures are required to be carried out in accordance with that subsection.

(5) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action, other than an action to require future compliance of the employer with the duty under this section.

(6) In this section and section 37A:
"primary child-related employment" means:

(a) paid child-related employment, or

(b) child-related employment of a minister, priest, rabbi, mufti or other like religious leader or spiritual official of a religion, or

(c) child-related employment involving the fostering of children, or

(c1) child-related employment of a student that involves working in the Department of Human Services, or

(c2) child-related employment of a volunteer that involves the mentoring of disadvantaged children, or

(c3) child-related employment of a volunteer that involves the provision of personal care services to children with disabilities, but only if the work involves an intimate level of contact with those children (such as assistance with bathing, dressing or toileting), or

(d) if the regulations so require-child-related employment of the kind prescribed by the regulations.