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PARLIAMENT OF VICTORIA
Working with Children Amendment Bill 2007
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1 Purpose 1
2 Commencement 2
PART 2--AMENDMENT OF WORKING WITH CHILDREN
ACT 2005 3
3 Definitions 3
4 What is child-related work? 3
5 Application for working with children check 4
6 Consideration of application 5
7 Category 1 application 5
8 Category 2 application 5
9 Category 3 application 7
10 Outcome of application 8
11 Re-assessment 9
12 Revocation of assessment notice and surrender of document 10
13 Surrender of assessment notice 11
14 Jurisdiction of VCAT 12
15 Engaging in child-related work without an assessment notice 12
16 Offence for holder of negative notice to apply for child-related
work 13
17 Offence to engage in child-related work a person who does not
have an assessment notice 13
18 Offence for agency to offer the services of a person who does
not have an assessment notice 14
19 Delegation 14
20 New section 51 inserted 15
51 Transitional provision--Working with Children
Amendment Act 2007 15
561063B.I-22/8/2007 i BILL LA INTRODUCTION 22/8/2007
Clause Page
PART 3--AMENDMENT OF OTHER ACTS 17
Division 1--Amendment of the Children, Youth and Families
Act 2005 17
21 Other reports to Secretary of allegations about carers 17
Division 2--Amendment of Sentencing Act 1991 18
22 New section 134 inserted 18
134 Transitional provision--Working with Children
Act 2005 18
PART 4--REPEAL OF AMENDING ACT 19
23 Repeal of Act 19
ENDNOTES 20
561063B.I-22/8/2007 ii BILL LA INTRODUCTION 22/8/2007
PARLIAMENT OF VICTORIA
Introduced in the Assembly
Working with Children Amendment
Bill 2007
A Bill for an Act to amend the Working with Children Act 2005, the
Children, Youth and Families Act 2005 and the Sentencing Act
1991 and for other purposes.
The Parliament of Victoria enacts:
PART 1--PRELIMINARY
1 Purpose
The purpose of this Act is to amend--
(a) the Working with Children Act 2005 to
5 further provide for--
(i) the meaning of parent and child-related
work; and
(ii) applications for working with children
checks; and
561063B.I-22/8/2007 1 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 1--Preliminary
s. 2
(iii) the revocation and surrender of
assessment notices; and
(iv) the jurisdiction of VCAT; and
(v) offences under Part 4; and
5 (vi) the delegation of the Secretary's
powers; and
(b) the Children, Youth and Families Act
2005 to make further provision in relation to
the reporting to the Secretary to the
10 Department of Human Services of certain
allegations about out of home carers; and
(c) the Sentencing Act 1991 to insert a
transitional provision in relation to
amendments made to that Act by the
15 Working with Children Act 2005.
2 Commencement
(1) This Act (other than sections 4 and 22) comes into
operation on the day after the day on which it
receives the Royal Assent.
20 (2) Sections 4 and 22 are deemed to have come into
operation on 3 April 2006.
__________________
561063B.I-22/8/2007 2 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 3
PART 2--AMENDMENT OF WORKING WITH CHILDREN
ACT 2005
3 Definitions
(1) In section 3(1) of the Working with Children See:
Act No.
5 Act 2005-- 57/2005.
Reprint No. 1
(a) in the definition of parent, after "Act 2005" as at
1 December
insert "but does not include a foster carer"; 2006 and
amending
(b) in paragraph (f) of the definition of relevant Act No.
offence, after "section 13(1)(f)" insert 24/2006 and
48/2006.
10 ", (fa) or (fb) or section 14(1)(ba) or (bb)". LawToday:
www.
(2) In section 3(1) of the Working with Children legislation.
Act 2005 insert the following definitions-- vic.gov.au
"carnal knowledge offence means an offence
specified in clause 1(d)(viii) or (ix) of
15 Schedule 1 to the Sentencing Act 1991;
registered medical practitioner has the same
meaning as it has in the Health Professions
Registration Act 2005;".
4 What is child-related work?
20 (1) For the Example at the foot of section 9(1) of the
Working with Children Act 2005 substitute--
"Example
A is employed as a nurse in the Geriatric ward of a public
hospital. One day, a nurse who usually works in the
25 Paediatric ward is unwell and A works in that nurse's place
for that day. A is not engaged in child-related work as A's
work does not usually involve regular direct contact with
children.".
(2) In section 9(1)(b) of the Working with Children
30 Act 2005, for "within the meaning of" substitute
"or agreement under".
(3) In section 9(3)(m) of the Working with Children
Act 2005 omit "private".
561063B.I-22/8/2007 3 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 5
(4) For section 9(8) of the Working with Children
Act 2005 substitute--
"(8) For the purposes of this Act, a person is not
engaged in child-related work merely
5 because he or she--
(a) is participating in an activity with a
child on the same basis as the child; or
Example
An adult playing in a cricket team alongside a
10 child is not engaging in child-related work.
(b) is supervising a child undertaking
practical training as part of an
arrangement or agreement under
Part 5.4 of the Education and
15 Training Reform Act 2006.".
5 Application for working with children check
For section 10(2)(b) of the Working with
Children Act 2005 substitute--
"(b) be--
20 (i) signed by the applicant; or
(ii) if the applicant is not able to sign the
application because of an impairment
within the meaning of the Equal
Opportunity Act 1995, be
25 accompanied by a statement from a
registered medical practitioner
certifying--
(A) that the person suffers from such
an impairment; and
30 (B) that the person is not able to sign
the application because of that
impairment; and".
561063B.I-22/8/2007 4 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 6
6 Consideration of application
In section 11(3) of the Working with Children
Act 2005, after "by or under any Act" insert
"(including the Judicial Proceedings Reports
5 Act 1958)".
7 Category 1 application
(1) In section 12(1)(c) of the Working with Children
Act 2005, after "child pornography offence"
insert "or carnal knowledge offence".
10 (2) After section 12(2) of the Working with
Children Act 2005 insert--
"(3) Despite subsection (2), the Secretary may
give an assessment notice on a category 1
application if--
15 (a) the application is in respect of a person
who has at any time been given an
assessment notice because of an order
made by VCAT under section 26(3);
and
20 (b) a relevant change in circumstances (as
defined in section 20(2)) has not
occurred with respect to the person; and
(c) the Secretary is satisfied that
exceptional circumstances do not exist
25 with respect to the person that justify
the refusal of the notice.".
8 Category 2 application
In section 13(1) of the Working with Children
Act 2005--
30 (a) after paragraph (a) insert--
"(ab) who, as an adult, has at any time
(whether before, on or after the
commencement of this section) been
561063B.I-22/8/2007 5 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 8
convicted or found guilty of a carnal
knowledge offence; or";
(b) in paragraph (d), after "Act 1981" insert
"or an offence under a law of a jurisdiction
5 other than Victoria that, if it had been
committed in Victoria, would have
constituted an offence against section 71AB
or 71B of that Act";
(c) in paragraph (e), after "section 42(3))" insert
10 "or an offence under a law of a jurisdiction
other than Victoria that, if it had been
committed in Victoria, would have
constituted an offence against section 46
or 47 of the Sex Offenders Registration Act
15 2004 or against Part 5 of that Act (other than
section 70) or against the Serious Sex
Offenders Monitoring Act 2005 (other than
section 42(3))";
(d) after paragraph (f) insert--
20 "(fa) who, as an adult, has at any time
(whether before, on or after the
commencement of this section) been
convicted or found guilty of an offence
against section 21A of the Crimes Act
25 1958 or an offence under a law of a
jurisdiction other than Victoria that, if it
had been committed in Victoria, would
have constituted an offence against
section 21A of that Act, if the person
30 against whom the offence is committed
is a child; or
(fb) who, as an adult, has at any time
(whether before, on or after the
commencement of this section) been
35 convicted or found guilty of an offence
against section 60B of the Crimes Act
1958 or an offence under a law of a
561063B.I-22/8/2007 6 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 9
jurisdiction other than Victoria that, if it
had been committed in Victoria, would
have constituted an offence against
section 60B of that Act; or";
5 (e) in paragraph (g), for "(e) or (f)" substitute
"(e), (f), (fa) or (fb)".
9 Category 3 application
In section 14(1) of the Working with Children
Act 2005--
10 (a) after paragraph (b) insert--
"(ba) who has at any time (whether before,
on or after the commencement of this
section) been convicted or found guilty
of an offence against section 18 of the
15 Crimes Act 1958 or an offence under a
law of a jurisdiction other than Victoria
that, if it had been committed in
Victoria, would have constituted an
offence against section 18 of that Act;
20 or
(bb) who has at any time (whether before,
on or after the commencement of this
section) been convicted or found guilty
of an offence against section 19 of the
25 Summary Offences Act 1966 or an
offence under a law of a jurisdiction
other than Victoria that, if it had been
committed in Victoria, would have
constituted an offence against
30 section 19 of that Act; or";
(b) in paragraph (c), after "(b)" insert
", (ba) or (bb)".
561063B.I-22/8/2007 7 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 10
10 Outcome of application
(1) In section 17(1) of the Working with Children
Act 2005--
(a) for "The" substitute "Subject to sections
5 12(2) and (3), 13(2) and 14(2) and
subsection (1A), the";
(b) omit "that is not a category 1, 2 or 3
application".
(2) The Note at the foot of section 17(1) of the
10 Working with Children Act 2005 is repealed.
(3) After section 17(1) of the Working with
Children Act 2005 insert--
"(1A) The Secretary may refuse to give an
assessment notice if--
15 (a) the applicant has at any time (whether
before, on or after the commencement
of this section) been charged with,
convicted or found guilty of an offence
(other than a relevant offence) or has
20 had a charge for an offence (other than
a relevant offence) finally dealt with
(other than by the applicant being found
not guilty of the offence); and
(b) the Secretary is satisfied that--
25 (i) exceptional circumstances exist
with respect to the applicant that
justify the refusal of the notice;
and
(ii) there is a significant link between
30 the charge, conviction, finding of
guilt or final dealing and a risk to
the safety of children posed by the
applicant.
561063B.I-22/8/2007 8 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 11
(1B) In considering whether it is appropriate to
refuse to give an assessment notice in the
circumstances referred to in subsection (1A),
the Secretary must have regard to--
5 (a) whether because of that charge,
conviction, finding of guilt or final
dealing, the giving of the notice would
pose an unjustifiable risk to the safety
of children having regard to the matters
10 set out in section 13(2)(a) to (i); and
(b) in the case of an applicant who has
been charged with, convicted or found
guilty of more than one offence of a
kind to which subsection (1A) applies
15 or has had more than one offence of
that kind finally dealt with, the period
of time between the commission, or
alleged commission, of each of the
offences.".
20 11 Re-assessment
After section 21(2) of the Working with
Children Act 2005 insert--
"(2A) The Secretary may at any time re-assess, in
accordance with the provisions of this Act as
25 amended by the Working with Children
Amendment Act 2007, a person's eligibility
to have an assessment notice that was in
force immediately before the commencement
of section 11 of that Act.".
561063B.I-22/8/2007 9 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 12
12 Revocation of assessment notice and surrender of
document
(1) For section 23(1) of the Working with Children
Act 2005 substitute--
5 "(1) The Secretary may at any time revoke an
assessment notice--
(a) following a re-assessment of the
holder's eligibility to have the notice; or
(b) if the Secretary--
10 (i) becomes aware that the holder of
the assessment notice has been
charged with, convicted or found
guilty of an offence (other than a
relevant offence) or has had a
15 charge for an offence (other than a
relevant offence) finally dealt with
(other than by the holder of the
notice being found not guilty of
the offence); and
20 (ii) the Secretary is satisfied that--
(A) exceptional circumstances
exist with respect to the
holder of the assessment
notice that justify the
25 revocation of the notice; and
(B) there is a significant link
between the charge,
conviction, finding of guilt
or final dealing and a risk to
30 the safety of children posed
by the applicant.
(1A) In considering whether it is appropriate to
revoke an assessment notice in the
circumstances referred to in subsection
35 (1)(b), the Secretary must have regard to--
561063B.I-22/8/2007 10 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 13
(a) whether because of that charge,
conviction, finding of guilt or final
dealing, the holding of the assessment
notice by the person poses an
5 unjustifiable risk to the safety of
children having regard to the matters
set out in section 13(2)(a) to (i); and
(b) in the case of a holder of an assessment
notice who has been charged with,
10 convicted or found guilty of more than
one offence of a kind to which
subsection (1)(b) applies or has had
more than one offence of that kind
finally dealt with, the period of time
15 between the commission, or alleged
commission, of each of the offences.".
13 Surrender of assessment notice
(1) In section 24(2) of the Working with Children
Act 2005, for "surrenders a" substitute
20 "surrenders his or her only".
(2) After section 24(2) of the Working with
Children Act 2005 insert--
"(3) If the holder of a current assessment notice
(the first assessment notice) applies for, and
25 is given, another current assessment notice,
the holder must not, without reasonable
excuse, refuse or fail to surrender to the
Secretary the current assessment notice
document that was given to him or her in
30 respect of the first assessment notice, within
7 days after being directed to do so by the
Secretary.
Penalty: 1 penalty unit.".
561063B.I-22/8/2007 11 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 14
14 Jurisdiction of VCAT
(1) After section 26(1) of the Working with
Children Act 2005 insert--
"(1A) Pending the final determination of an
5 application under subsection (1), VCAT
may--
(a) make an order staying the operation of
the Secretary's decision to refuse to
give an assessment notice; and
10 (b) make any other order it considers
appropriate having regard to the matters
set out in subsection (2).".
(2) In section 26(5) of the Working with Children
Act 2005--
15 (a) in paragraph (b), for "application--"
substitute "application; or";
(b) after paragraph (b) insert--
"(c) because of a decision of the Secretary
to do so under section 17(1A); or
20 (d) because of a decision of the Secretary
under section 23(1) to revoke an
assessment notice--".
15 Engaging in child-related work without an
assessment notice
25 After section 33(2) of the Working with
Children Act 2005 insert--
"(2A) A person is not guilty of an offence against
subsection (1) if, at the time the offence is
alleged to have been committed, he or she
30 had been given a negative notice by the
Secretary and had applied to VCAT--
(a) under section 26(1) for an assessment
notice to be given to him or her; or
561063B.I-22/8/2007 12 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 16
(b) under section 26(5) for review of a
decision of the Secretary to give him or
her a negative notice--
and the decision of the Secretary was the
5 subject of an order by VCAT staying the
operation of the decision.".
16 Offence for holder of negative notice to apply for
child-related work
After section 34(2) of the Working with
10 Children Act 2005 insert--
"(2A) A person is not guilty of an offence against
subsection (1) if, at the time the offence is
alleged to have been committed, he or she
had been given a negative notice by the
15 Secretary and had applied to VCAT--
(a) under section 26(1) for an assessment
notice to be given to him or her; or
(b) under section 26(5) for review of a
decision of the Secretary to give him or
20 her a negative notice--
and the decision of the Secretary was the
subject of an order by VCAT staying the
operation of the decision.".
17 Offence to engage in child-related work a person
25 who does not have an assessment notice
After section 35(3) of the Working with
Children Act 2005 insert--
"(3A) A person is not guilty of an offence against
subsection (1) if, at the time the offence is
30 alleged to have been committed, the worker
had been given a negative notice by the
Secretary and had applied to VCAT--
561063B.I-22/8/2007 13 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 18
(a) under section 26(1) for an assessment
notice to be given to him or her; or
(b) under section 26(5) for review of a
decision of the Secretary to give him or
5 her a negative notice--
and the decision of the Secretary was the
subject of an order by VCAT staying the
operation of the decision.".
18 Offence for agency to offer the services of a person
10 who does not have an assessment notice
After section 36(2) of the Working with
Children Act 2005 insert--
"(2A) An agency is not guilty of an offence against
subsection (1) if, at the time the offence is
15 alleged to have been committed, the worker
had been given a negative notice by the
Secretary and had applied to VCAT--
(a) under section 26(1) for an assessment
notice to be given to him or her; or
20 (b) under section 26(5) for review of a
decision of the Secretary to give him or
her a negative notice--
and the decision of the Secretary was the
subject of an order by VCAT staying the
25 operation of the decision.".
19 Delegation
In section 43 of the Working with Children Act
2005, after "under this Act" insert "or regulations
made under this Act".
561063B.I-22/8/2007 14 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 20
20 New section 51 inserted
After section 50 of the Working with Children
Act 2005 insert--
"51 Transitional provision--Working with
5 Children Amendment Act 2007
(1) The amendments made to this Act by the
Working with Children Amendment Act
2007 apply to any application for a working
with children check that was made but not
10 finally decided or withdrawn immediately
before the commencement of section 20 of
that Act.
(2) The Secretary must, immediately after the
commencement of section 20 of the
15 Working with Children Amendment Act
2007, notify each person who has made an
application for a working with children
check that was not finally decided or
withdrawn immediately before that
20 commencement that his or her application
will be assessed in accordance with this Act
as amended by that Act, and must give each
person a reasonable opportunity to withdraw
his or her application if the person wishes to
25 do so.
(3) The amendments made to this Act by
sections 12 and 13 of the Working with
Children Amendment Act 2007 apply to
any assessment notice that was in force
30 immediately before the commencement of
those sections.
561063B.I-22/8/2007 15 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 2--Amendment of Working with Children Act 2005
s. 20
(4) The amendments made to this Act by
section 15, 16, 17 or 18 of the Working
with Children Amendment Act 2007 apply
to offences committed before, on or after the
5 commencement of that section of that Act.".
__________________
561063B.I-22/8/2007 16 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 3--Amendment of Other Acts
s. 21
PART 3--AMENDMENT OF OTHER ACTS
See:
Division 1--Amendment of the Children, Youth and Act No.
96/2005.
Families Act 2005 Reprint No. 1
as at 23 April
21 Other reports to Secretary of allegations about 2007 and
amending
5 carers Act Nos
97/2005,
(1) In section 82(1)(b) of the Children, Youth and 23/2006,
24/2006,
Families Act 2005, for "carer." substitute 51/2006,
"carer; or". 81/2006,
24/2007 and
(2) After section 82(1)(b) of the Children, Youth 28/2007.
LawToday:
10 and Families Act 2005 insert-- www.
legislation.
"(c) a person, while acting as a foster carer, has vic.gov.au
sexually or physically abused a child who
was placed in his or her care by a community
service approved under section 58(1) of the
15 Children and Young Persons Act 1989; or
(d) a person, while employed or engaged as a
carer for children by a community service
approved under section 58(1) of the
Children and Young Persons Act 1989,
20 has sexually or physically abused a child
placed in his or her care by the community
service.".
561063B.I-22/8/2007 17 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 3--Amendment of Other Acts
s. 22
Division 2--Amendment of Sentencing Act 1991
22 New section 134 inserted
See: After section 133 of the Sentencing Act 1991
Act No.
49/1991. insert--
Reprint No. 10
5 as at 23 April "134 Transitional provision--Working with
2007 and
amending Children Act 2005
Act Nos
97/2005, (1) The amendments made to this Act by the
23/2006 and Working with Children Act 2005 only
24/2006.
LawToday: apply to the sentencing of a person on or
10 www. after the commencement of that Act in
legislation.
vic.gov.au respect of an offence alleged to have been
committed on or after that commencement.
(2) For the purpose of subsection (1), if an
offence is alleged to have been committed
15 between two dates, one before and one after
the commencement of the Working with
Children Act 2005, the offence is alleged to
have been committed before that
commencement.".
__________________
561063B.I-22/8/2007 18 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Part 4--Repeal of Amending Act
s. 23
PART 4--REPEAL OF AMENDING ACT
23 Repeal of Act
This Act is repealed on the first anniversary of
the day on which it receives the Royal Assent.
561063B.I-22/8/2007 19 BILL LA INTRODUCTION 22/8/2007
Working with Children Amendment Bill 2007
Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
561063B.I-22/8/2007 20 BILL LA INTRODUCTION 22/8/2007
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