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This is a Bill, not an Act. For current law, see the Acts databases.
Western Australia
Working with Children (Criminal Record
Checking) Bill 2004
CONTENTS
Part 1 -- Preliminary
1. Short title 2
2. Commencement 2
3. Principle that best interests of children are paramount 2
4. Terms used in this Act 2
5. Managerial officers 6
6. Meaning of "child-related work" 6
7. Meaning of "Class 1 offence" and "Class 2 offence" 8
8. References to convictions 9
Part 2 -- Assessment notices and
negative notices
Division 1 -- Application for assessment notice
9. Application for assessment notice (child-related
employment) 11
10. Application for assessment notice (child-related
business) 11
11. Withdrawal of application for assessment notice 12
Division 2 -- Issue of assessment notices and
negative notices
12. Decision on application for an assessment notice 13
13. CEO to invite submission about criminal record and
issue interim negative notice 15
14. Duration of assessment notices and negative notices 17
15. Further assessment notice may be obtained 17
347--2 page i
Working with Children (Criminal Record Checking) Bill 2004
Contents
Division 3 -- CEO may require assessment notice
to be applied for
16. CEO may require certain employees to apply for
assessment notice 17
17. CEO may require certain people who carry out
child-related work to apply for assessment notice 18
18. CEO may issue negative notice if assessment notice
not applied for 19
Division 4 -- Cancellation of assessment notices
and negative notices
19. Applications for cancellation of negative notice 20
20. Cancellation of notice because of wrong or
incomplete information 21
21. Issue of notice cancels any previous notice 22
Division 5 -- Prohibitions relating to child-related
work
22. Employers not to employ certain people in
child-related employment 23
23. People issued with negative notice or interim negative
notice not to carry out child-related work 24
24. People without current assessment notice not to carry
out child-related work 24
25. Defences for section 24 25
Division 6 -- Review by State Administrative
Tribunal
26. Review by State Administrative Tribunal 25
Part 3 -- Changes in criminal record
and criminal record checks
Division 1 -- Relevant changes in criminal record
27. Meaning of relevant change in criminal record and
requirement to give notice of that change 27
28. Relevant change in criminal record of certain
applicants 27
29. Relevant change in criminal record of people
employed in child-related employment 27
30. Relevant change in criminal record of people carrying
on child-related business 28
31. Relevant change in criminal record of other people 28
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Working with Children (Criminal Record Checking) Bill 2004
Contents
32. CEO to treat notice of relevant change in criminal
record as application for assessment notice 29
33. People not to start or continue child-related work if
convicted of Class 1 offence 29
Division 2 -- Criminal record checks
34. CEO may carry out criminal record check 30
Part 4 -- General
35. False or misleading information 32
36. Return of assessment notice to CEO 32
37. Exchange of information with corresponding
authorities 32
38. CEO may disclose to certain bodies information about
issue of negative notices and interim negative notices 33
39. Confidentiality of information 34
40. Protection from liability for wrongdoing 35
41. Employer to comply with Act despite other laws etc. 35
42. CEO may require information to confirm compliance
with Act 36
43. Liability of partners for certain offences 36
44. Evidentiary matters 37
45. Delegation 38
46. Regulations 38
47. Minister to review and report on Act 39
Part 5 -- Consequential amendments to
the Children and Community
Services Act 2004
48. The Act amended 40
49. Section 197 amended 40
50. Section 207 amended 40
51. Section 208 amended 41
52. Section 209 amended 41
53. Section 220 amended 41
54. Section 221 amended 42
55. Section 224 amended 42
Part 6 -- Transitional provisions
56. Terms used in this Part 43
57. People carrying on a child-related business 43
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Working with Children (Criminal Record Checking) Bill 2004
Contents
58. Volunteers continuing in child-related employment 44
59. Ministers of religion etc. continuing in child-related
employment 44
60. Other people in child-related employment 45
61. Transitional regulations 46
Schedule 1 -- Class 1 offences 47
Schedule 2 -- Class 2 offences 48
Defined Terms
page iv
Western Australia
LEGISLATIVE ASSEMBLY
(As amended during consideration in detail)
Working with Children (Criminal Record
Checking) Bill 2004
A Bill for
An Act --
· to provide for procedures for checking the criminal record of
people who carry out, or propose to carry out, child-related
work;
· to prohibit people who have been charged with or convicted of
certain offences from carrying out child-related work,
and to provide for related matters.
The Parliament of Western Australia enacts as follows:
page 1
Working with Children (Criminal Record Checking) Bill 2004
Part 1 Preliminary
s. 1
Part 1 -- Preliminary
1. Short title
This Act may be cited as the Working with Children (Criminal
Record Checking) Act 2004.
5 2. Commencement
(1) This Act comes into operation on a day fixed by proclamation.
(2) Different days may be fixed under subsection (1) for different
provisions.
3. Principle that best interests of children are paramount
10 In performing a function under this Act, the CEO or the State
Administrative Tribunal is to regard the best interests of
children as the paramount consideration.
4. Terms used in this Act
In this Act, unless the contrary intention appears --
15 "another jurisdiction" means a jurisdiction other than Western
Australia (including jurisdictions outside Australia);
"approved" means approved by the CEO;
"assessment notice" means a written notice issued by the CEO
under section 12(1)(a);
20 "CEO" means the chief executive officer of the Department;
"charge" means a non-conviction charge or a pending charge;
"child" means a person who is under 18 years of age;
"child care service" has the meaning given to that term in the
Children and Community Services Act 2004 section 198;
25 "child-related business" means child-related work carried out
by an individual for gain or reward otherwise than in the
course of child-related employment;
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Working with Children (Criminal Record Checking) Bill 2004
Preliminary Part 1
s. 4
"child-related employment" means --
(a) child-related work carried out by an individual under
a contract of employment or apprenticeship (whether
written or unwritten);
5 (b) child-related work carried out on a voluntary basis by
an individual under an agreement (whether written or
unwritten) with another person; or
(c) child-related work carried out by an individual as a
minister of religion or in any other capacity for the
10 purposes of a religious organisation;
"child-related work" has the meaning given to that term in
section 6;
"Class 1 offence" has the meaning given to that term in
section 7(1);
15 "Class 2 offence" has the meaning given to that term in
section 7(2);
"Commissioner" means the person holding or acting in the
office of Commissioner of Police under the Police
Act 1892;
20 "contact" includes --
(a) any form of physical contact;
(b) any form of oral communication, whether face to
face, by telephone or otherwise; and
(c) any form of electronic communication,
25 but does not include contact in the normal course of duties
between an employer and an employee or between
employees of the same employer;
"conviction" has the meaning given to that term in section 8;
"criminal record", in relation to a person, means --
30 (a) every conviction of the person of an offence, in
Western Australia or another jurisdiction; and
(b) every charge made against the person for an offence,
in Western Australia or another jurisdiction;
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Working with Children (Criminal Record Checking) Bill 2004
Part 1 Preliminary
s. 4
"criminal record check" means the procedures set out in
section 34 to enable the CEO to determine whether a
person has a criminal record and, if so, to obtain details of
that criminal record;
5 "Department" means the department of the Public Service
principally assisting the Minister in the administration of
this Act;
"educational institution for children" includes any school as
defined in the School Education Act 1999 but does not
10 include --
(a) an educational institution that is recognised or
established as a university under a written law; or
(b) an educational institution prescribed by the
regulations for the purposes of this paragraph,
15 even if that university or institution has a student who has
not reached 18 years of age;
"interim negative notice" means a written notice issued by the
CEO under section 13;
"negative notice" means a written notice issued by the CEO
20 under section 12(1)(b);
"non-conviction charge" means a charge of an offence that has
been disposed of by a court otherwise than by way of a
conviction;
"officer of the Department" means a person employed in, or
25 engaged by, the Department whether as a public service
officer under the Public Sector Management Act 1994,
under a contract for services or otherwise;
"parent", of a child, means a person --
(a) who is the father, mother, stepfather or stepmother of
30 the child;
(b) who at law has responsibility for --
(i) the long-term care, welfare and development
of the child; or
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Working with Children (Criminal Record Checking) Bill 2004
Preliminary Part 1
s. 4
(ii) the day to day care, welfare and development
of the child;
or
(c) who is in a de facto relationship with a person
5 referred to in paragraph (a) or (b);
"pending charge" means a charge of an offence that has not yet
been disposed of by a court;
"relative", in relation to a child, means --
(a) the child's --
10 (i) parent, grandparent or other ancestor;
(ii) sibling;
(iii) uncle or aunt;
(iv) cousin;
(v) spouse or de facto partner,
15 whether the relationship is established by, or traced
through, consanguinity, marriage, a de facto
relationship, a written law or a natural relationship;
(b) in the case of a child who is a descendant of
Aboriginal people of Australia -- a person regarded
20 under the customary law or tradition of the child's
community as the equivalent of a person mentioned
in paragraph (a); or
(c) in the case of a child who is a descendant of the
indigenous inhabitants of the Torres Strait Islands --
25 a person regarded under the customary law or
tradition of the Torres Strait Islands as the equivalent
of a person mentioned in paragraph (a);
"specified", in relation to a notice, means specified in the
notice;
30 "work" includes practical training undertaken as part of an
educational or vocational course.
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Working with Children (Criminal Record Checking) Bill 2004
Part 1 Preliminary
s. 5
5. Managerial officers
(1) In this section --
"managerial officer" has the meaning given to that term in the
Children and Community Services Act 2004 section 197.
5 (2) Despite any other provision of this Act, a person who is a
managerial officer in relation to a body corporate that holds a
licence under the Children and Community Services Act 2004
Part 8 --
(a) is taken for the purposes of this Act to carry on a
10 child-related business; and
(b) if the person does not carry out any child-related work
as a managerial officer -- is taken for those purposes to
carry out child-related work in connection with a child
care service.
15 6. Meaning of "child-related work"
(1) Subject to subsection (3), work is "child-related work" if --
(a) the usual duties of the work involve, or are likely to
involve, contact with a child in connection with --
(i) a child care service;
20 (ii) a community kindergarten registered under the
School Education Act 1999 Part 5;
(iii) an educational institution for children;
(iv) a coaching or private tuition service of any kind,
but not including an informal arrangement
25 entered into for private or domestic purposes;
(v) an arrangement for the accommodation or care of
children, whether in a residential facility or
private residence, but not including an informal
arrangement made by a parent of the child
30 concerned or accommodation or care provided
by a relative of the child;
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Working with Children (Criminal Record Checking) Bill 2004
Preliminary Part 1
s. 6
(vi) a placement arrangement under the Children and
Community Services Act 2004;
(vii) the performance by an officer, as defined in the
Children and Community Services Act 2004
5 section 3, of a function given to the officer under
that Act;
(viii) a detention centre, as defined in the Young
Offenders Act 1994 section 3;
(ix) a community child health service;
10 (x) a counselling or other support service;
(xi) a religious organisation;
(xii) a club, association or movement (including of a
cultural, recreational or sporting nature and
whether incorporated or not) with a significant
15 membership or involvement of children, but not
including an informal arrangement entered into
for private or domestic purposes;
(xiii) a ward of a public or private hospital in which
children are ordinarily patients;
20 (xiv) a baby sitting or child minding service, but not
including an informal arrangement entered into
for private or domestic purposes;
(xv) an overnight camp, regardless of the type of
accommodation or how many children are
25 involved;
(xvi) a transport service specifically for children;
(xvii) a school crossing service, being a service
provided to assist children to cross roads on their
way to or from school;
30 (xviii) a children's entertainment or party service; or
(xix) any other work of a kind prescribed by the
regulations;
or
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Working with Children (Criminal Record Checking) Bill 2004
Part 1 Preliminary
s. 7
(b) the work is the exercise or performance by a person of a
power or duty delegated to the person by the CEO under
section 45.
(2) For the purposes of subsection (1), "contact with a child" does
5 not include contact --
(a) between a person and a child who is employed by the
person; or
(b) between a person and a child who are both employed by
the same person,
10 if the contact is lawful and arises in the normal course of the
child's employment.
(3) Subsection (1) does not apply to work that is carried out --
(a) on a voluntary basis by a child; or
(b) in circumstances, or by a person, prescribed by the
15 regulations.
(4) Without limiting subsection (3)(b), the regulations may
prescribe a person for the purposes of that provision by
reference to a criminal record check (however described) made
in respect of the person --
20 (a) under another Act prescribed by the regulations; or
(b) as prescribed by the regulations.
7. Meaning of "Class 1 offence" and "Class 2 offence"
(1) A "Class 1 offence" is --
(a) an offence against a provision listed in Schedule 1 (if the
25 offence complies with any condition specified in that
Schedule relating to the age of the victim);
(b) an offence under a law of another jurisdiction the
elements of which, if they had occurred in Western
Australia, would have constituted an offence of a kind
30 referred to in this subsection;
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Working with Children (Criminal Record Checking) Bill 2004
Preliminary Part 1
s. 8
(c) an offence under a law of another jurisdiction that is
prescribed by the regulations to be a Class 1 offence;
(d) an offence that, at the time it was committed --
(i) was a Class 1 offence for the purposes of this
5 Act; or
(ii) in the case of an offence committed before the
commencement of this section -- was an offence
of a kind referred to in this subsection.
(2) A "Class 2 offence" is --
10 (a) an offence against a provision listed in Schedule 2 (if the
offence complies with any condition specified in that
Schedule relating to the age of the victim);
(b) an offence under a law of another jurisdiction the
elements of which, if they had occurred in Western
15 Australia, would have constituted an offence of a kind
referred to in this subsection;
(c) an offence under a law of another jurisdiction that is
prescribed by the regulations to be a Class 2 offence;
(d) an offence of attempting, or of conspiracy or incitement,
20 to commit an offence of a kind referred to in this
subsection or subsection (1);
(e) an offence that, at the time it was committed --
(i) was a Class 2 offence for the purposes of this
Act; or
25 (ii) in the case of an offence committed before the
commencement of this section -- was an offence
of a kind referred to in this subsection.
8. References to convictions
(1) For the purposes of this Act, a reference to a conviction in
30 relation to an offence committed by a person is a reference to
any of the following --
(a) a court making a formal finding of guilt in relation to the
offence;
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Working with Children (Criminal Record Checking) Bill 2004
Part 1 Preliminary
s. 8
(b) a court convicting the person of the offence, if there has
been no formal finding of guilt before conviction;
(c) a court accepting a plea of guilty from the person in
relation to the offence;
5 (d) a court acquitting the person following a finding under
The Criminal Code section 27 that the person is not
guilty of the offence on account of unsoundness of mind
or an acquittal following an equivalent finding under the
laws of another jurisdiction.
10 (2) For the purposes of this Act, a reference to a conviction includes
a reference to a conviction that is a spent conviction.
(3) For the purposes of subsection (2), an offence becomes spent if,
under a law in any jurisdiction, the person concerned is
permitted not to disclose the fact that he or she was convicted or
15 found guilty of the offence.
(4) A reference to a conviction in this Act does not include a
reference to a conviction that is subsequently quashed or set
aside by a court.
page 10
Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
Application for assessment notice Division 1
s. 9
Part 2 -- Assessment notices and negative notices
Division 1 -- Application for assessment notice
9. Application for assessment notice (child-related
employment)
5 (1) A person who is, or is proposed to be, employed in child-related
employment by another person (the "employer") may apply to
the CEO for an assessment notice.
(2) The application is to be --
(a) in the approved form;
10 (b) signed by the applicant; and
(c) accompanied by the fee prescribed by the regulations.
(3) The approved form is to include provision for --
(a) identifying information to be given about the applicant;
and
15 (b) certification by the employer that the employer employs,
or proposes to employ, the applicant in child-related
employment.
(4) On receiving the application, the CEO may ask the applicant, by
written notice or otherwise, to provide any further information
20 or documents that the CEO reasonably needs to establish the
applicant's identity or for a proper consideration of the
application.
10. Application for assessment notice (child-related business)
(1) A person who carries on, or proposes to carry on, a child-related
25 business may apply to the CEO for an assessment notice.
(2) The application is to be --
(a) in the approved form;
(b) signed by the applicant; and
(c) accompanied by the fee prescribed by the regulations.
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Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 1 Application for assessment notice
s. 11
(3) The approved form is to include provision for identifying
information to be given about the applicant.
(4) On receiving the application, the CEO may ask the applicant, by
written notice or otherwise, to provide any further information
5 or documents that the CEO reasonably needs to establish the
applicant's identity or for a proper consideration of the
application.
11. Withdrawal of application for assessment notice
(1) An applicant for an assessment notice may withdraw the
10 application at any time before the assessment notice is issued to
the applicant.
(2) The applicant is taken to have withdrawn the application if --
(a) the CEO cannot establish with certainty the applicant's
identity;
15 (b) the CEO gives the applicant a written notice --
(i) that asks the applicant to provide, within a
reasonable specified time, specified information
or documents that the CEO reasonably needs to
establish the applicant's identity; and
20 (ii) that informs the applicant that, if the applicant
does not comply with the request, the applicant's
application will be taken to have been
withdrawn;
(c) the applicant does not comply with the notice within the
25 specified time; and
(d) the CEO gives the applicant a written notice stating that
the applicant is taken to have withdrawn the application.
(3) If --
(a) the applicant is a person who is, or is proposed to be,
30 employed in child-related employment by another
person; and
page 12
Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
Issue of assessment notices and negative notices Division 2
s. 12
(b) the applicant withdraws the application or the CEO
gives the applicant a notice under subsection (2)(d),
the CEO is to give the other person a written notice stating that
the applicant has withdrawn, or is taken to have withdrawn, the
5 application, as the case requires.
Division 2 -- Issue of assessment notices and negative notices
12. Decision on application for an assessment notice
(1) The CEO is to decide an application under section 9 or 10 in
accordance with this section --
10 (a) by issuing an assessment notice to the applicant; or
(b) by issuing a negative notice to the applicant.
(2) The CEO is not to decide the application unless the CEO has
made a criminal record check in respect of the applicant.
(3) If the CEO is not aware of --
15 (a) any offence of which the applicant has been convicted;
or
(b) any offence (other than an offence that is neither a
Class 1 offence nor a Class 2 offence) with which the
applicant has been charged,
20 the CEO is to issue an assessment notice to the applicant.
(4) If the CEO --
(a) is not aware of any offence of which the applicant has
been convicted; and
(b) is aware that the applicant has a non-conviction charge
25 in respect of a Class 1 offence or a Class 2 offence,
the CEO is to issue an assessment notice to the applicant unless
the CEO is satisfied that, because of the particular
circumstances of the case, a negative notice should be issued to
the applicant.
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Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 2 Issue of assessment notices and negative notices
s. 12
(5) If the CEO is aware of an offence (other than a Class 1 offence
or a Class 2 offence) of which the applicant has been convicted,
the CEO is to issue an assessment notice to the applicant unless
the CEO is satisfied that, because of the particular
5 circumstances of the case, a negative notice should be issued to
the applicant.
(6) If the CEO --
(a) is aware of a Class 1 offence (committed by the
applicant when a child) of which the applicant has been
10 convicted;
(b) is aware of a Class 2 offence of which the applicant has
been convicted; or
(c) is aware that the applicant has a pending charge in
respect of a Class 1 offence or a Class 2 offence,
15 the CEO is to issue a negative notice to the applicant unless the
CEO is satisfied that, because of the exceptional circumstances
of the case, an assessment notice should be issued to the
applicant.
(7) If the CEO is aware of a Class 1 offence (other than a Class 1
20 offence committed by the applicant when a child) of which the
applicant has been convicted, the CEO is to issue a negative
notice to the applicant.
(8) If subsection (4), (5) or (6) applies in respect of an offence, the
CEO is to decide whether he or she is satisfied in relation to the
25 particular or exceptional circumstances of the case having
regard to --
(a) the best interests of children;
(b) when the offence was committed or is alleged to have
been committed;
30 (c) the age of the applicant when the offence was
committed or is alleged to have been committed;
(d) the nature of the offence and any relevance it has to
child-related work;
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Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
Issue of assessment notices and negative notices Division 2
s. 13
(e) any information given by the applicant in, or in relation
to, the application;
(f) anything else that the CEO reasonably considers
relevant to the decision.
5 (9) On deciding the application --
(a) the CEO is to issue the assessment notice or the negative
notice, as the case requires, to the applicant; and
(b) if the CEO is aware that that applicant is, or is proposed
to be, employed in child-related employment by another
10 person -- the CEO is to give a copy of the notice to the
other person.
(10) When a negative notice is issued to an applicant, the CEO is to
provide with it a written notice that --
(a) states the reasons for the CEO's decision on the
15 application;
(b) states that the applicant may apply to the State
Administrative Tribunal, within 28 days after the date of
the negative notice, to have the decision reviewed; and
(c) explains how the application for the review is made.
20 13. CEO to invite submission about criminal record and issue
interim negative notice
(1) If the CEO proposes or is required to decide an application
under section 12 by issuing a negative notice to the applicant --
(a) the CEO is to give the applicant a written notice that --
25 (i) informs the applicant of the proposal or
requirement;
(ii) states the information about the applicant's
criminal record of which the CEO is aware; and
(iii) invites the applicant to make a submission to the
30 CEO, in writing or in another form approved by
the CEO, within a specified time about the
page 15
Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 2 Issue of assessment notices and negative notices
s. 13
information and about the applicant's suitability
to be issued with an assessment notice;
and
(b) the CEO may issue an interim negative notice to the
5 applicant.
(2) If the CEO is aware of a Class 1 offence (other than a Class 1
offence committed by the applicant when a child) of which the
applicant has been convicted, the CEO is to issue an interim
negative notice to the applicant.
10 (3) If the CEO --
(a) issues an interim negative notice to the applicant; and
(b) is aware that the applicant is, or is proposed to be,
employed in child-related employment by another
person,
15 the CEO is to give a copy of the notice to the other person.
(4) An interim negative notice has effect until the CEO decides the
application and issues a negative notice or an assessment notice
to the applicant, or the application is withdrawn.
(5) If the information specified in a notice under subsection (1)
20 about an applicant's criminal record includes a Class 1 offence
(other than a Class 1 offence committed by the applicant when a
child) of which the applicant has been convicted, the applicant
may make a submission to the CEO under this section only if
the applicant reasonably believes that the applicant's criminal
25 record does not include that conviction.
(6) The specified time referred to in subsection (1)(a)(iii) is to be
reasonable and, in any case, at least 28 days after the CEO gives
the applicant the notice.
(7) Before deciding the application, the CEO is to consider any
30 submission made by the applicant within the specified time.
page 16
Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
CEO may require assessment notice to be applied for Division 3
s. 14
14. Duration of assessment notices and negative notices
(1) An assessment notice has effect for 3 years unless sooner
cancelled under this Act.
(2) A negative notice continues to have effect unless it is cancelled
5 under this Act.
15. Further assessment notice may be obtained
(1) If an assessment notice no longer has effect, or will expire
within a period of 3 months, the person to whom it was issued
may apply under Division 1 for a further assessment notice.
10 (2) Section 12 applies to the application as if a reference in that
section to issuing an assessment notice were a reference to
issuing an assessment notice or a further assessment notice.
Division 3 -- CEO may require assessment notice to be
applied for
15 16. CEO may require certain employees to apply for assessment
notice
(1) If a person (the "employer") who employs another person (the
"employee") in child-related employment --
(a) reasonably suspects that the employee has been charged
20 with or convicted of an offence; and
(b) reasonably believes that the charge or conviction makes
it inappropriate for the employee to continue to carry out
child-related work,
the employer may give written notice to the CEO of the
25 suspicion and belief and the grounds on which the suspicion and
belief are held.
(2) The CEO may ask the employer, by written notice or otherwise,
to provide further information in relation to those grounds.
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Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 3 CEO may require assessment notice to be applied for
s. 17
(3) If the CEO is satisfied that the employer has reasonable grounds
for holding the suspicion and belief referred to in subsection (1),
the CEO may give the employee a written notice requiring the
employee to apply, within 10 days after the date of the notice,
5 for an assessment notice.
(4) Subsection (3) applies to a person whether or not the person has
a current assessment notice.
(5) The employee must comply with a notice given to the employee
under subsection (3) within the period referred to in that
10 subsection.
Penalty: a fine of $1 000.
(6) It is a defence to a charge of an offence under subsection (5) to
prove that, at the time the offence is alleged to have been
committed, the person was not employed in child-related
15 employment.
17. CEO may require certain people who carry out
child-related work to apply for assessment notice
(1) If the Commissioner reasonably believes that a person charged
with or convicted of a Class 1 offence or a Class 2 offence is --
20 (a) a person in respect of whom the CEO may ask for
information under section 34; or
(b) a person who carries out child-related work,
the Commissioner may give the CEO notice of --
(c) the person's name and address;
25 (d) the person's date of birth;
(e) the offence with which the person has been charged or
of which the person has been convicted;
(f) the details of the offence; and
(g) the date of the charge or conviction.
30 (2) The Commissioner may give notice under subsection (1) despite
another Act or law.
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Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
CEO may require assessment notice to be applied for Division 3
s. 18
(3) If the CEO is satisfied that there are reasonable grounds for
believing that a person in respect of whom the CEO has been
given notice under subsection (1) or information under
section 34 --
5 (a) carries out child-related work; and
(b) has been charged with or convicted of a Class 1 offence
or a Class 2 offence, being a charge or conviction of
which the CEO was not previously aware,
the CEO may give the person a written notice requiring the
10 person to apply, within 10 days after the date of the notice, for
an assessment notice.
(4) Subsection (3) applies to a person whether or not the person has
a current assessment notice.
(5) A person must comply with a notice given to the person under
15 subsection (3) within the period referred to in that subsection.
Penalty: a fine of $1 000.
(6) It is a defence to a charge of an offence under subsection (5) to
prove that, at the time the offence is alleged to have been
committed, the person was not carrying out child-related work.
20 18. CEO may issue negative notice if assessment notice not
applied for
(1) If a person does not comply with a notice given to the person
under section 16(3) or 17(3) within the period referred to in that
provision, the CEO may issue a negative notice to the person.
25 (2) If the CEO --
(a) issues a negative notice under subsection (1) to a person
who is employed in child-related employment; and
(b) is aware of the person's employer,
the CEO is to give the employer written notice of having issued
30 a negative notice to the person.
page 19
Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 4 Cancellation of assessment notices and negative notices
s. 19
Division 4 -- Cancellation of assessment notices and
negative notices
19. Applications for cancellation of negative notice
(1) A person to whom a negative notice has been issued may apply
5 to the CEO for the notice to be cancelled.
(2) The application cannot be made sooner than 3 years after --
(a) the negative notice was issued; or
(b) if the person has previously applied under this
section -- the most recent previous application.
10 (3) Subsection (2) does not apply if --
(a) a Class 1 offence or a Class 2 offence with which the
person was charged when the negative notice was
issued, or the previous application was made, is later
disposed of by a court otherwise than by way of a
15 conviction; or
(b) any offence of which the person was convicted when the
negative notice was issued, or the previous application
was made, is later quashed or set aside on appeal.
(4) Subsection (2)(a) does not apply if the negative notice was
20 issued under section 18.
(5) The application is to be --
(a) in the approved form;
(b) signed by the applicant; and
(c) accompanied by the fee prescribed by the regulations.
25 (6) The approved form is to include provision for identifying
information to be given about the applicant.
(7) The person may, in the application, state any information or
make any submission that relates to --
(a) the person's suitability to carry out child-related work;
30 or
page 20
Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
Cancellation of assessment notices and negative notices Division 4
s. 20
(b) any change in the person's circumstances,
unless the person has previously stated that information or made
that submission in or in respect of an application under this Act.
(8) Section 12(2) to (8) apply to the application as if --
5 (a) the application were an application for an assessment
notice;
(b) a reference in those provisions to issuing an assessment
notice were a reference to granting the application; and
(c) a reference in those provisions to issuing a negative
10 notice were a reference to refusing the application.
(9) If the CEO grants the application, the CEO --
(a) is to cancel the negative notice and give written notice to
the applicant accordingly; and
(b) if the person so requests -- is to issue an assessment
15 notice to the person.
(10) If the CEO refuses the application, the CEO is to give the
person a written notice that --
(a) states the reasons for the CEO's decision on the
application;
20 (b) states that the person may apply to the State
Administrative Tribunal, within 28 days after the date of
the notice, to have the decision reviewed; and
(c) explains how the application for the review is made.
20. Cancellation of notice because of wrong or incomplete
25 information
(1) In this section --
"correct notice" means --
(a) in relation to the cancellation of an assessment
notice -- a negative notice; or
page 21
Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 4 Cancellation of assessment notices and negative notices
s. 21
(b) in relation to the cancellation of a negative notice --
an assessment notice.
(2) The CEO may cancel an assessment notice or negative notice
(the "first notice") and substitute the correct notice if the CEO
5 is satisfied that --
(a) the decision on the application for the first notice was
based on wrong or incomplete information; and
(b) based on the correct or complete information, the CEO
should issue the correct notice.
10 (3) If the correct notice to be substituted is a negative notice, the
CEO is to comply with section 13 before the correct notice may
be substituted.
(4) Without limiting subsection (2), an application for the
cancellation of a negative notice may be made under this section
15 by the person to whom it was issued.
(5) Section 19 does not apply to the application if the CEO is
satisfied under subsection (2) that an assessment notice should
be issued to the applicant.
(6) The CEO is to issue the correct notice to the person to whom the
20 first notice was issued and, if the CEO is aware that that person
is, or is proposed to be, employed in child-related employment
by another person, the CEO is to give a copy of the correct
notice to the other person.
21. Issue of notice cancels any previous notice
25 (1) An assessment notice issued to a person cancels any current
assessment notice, negative notice or interim negative notice
that has previously been issued to the person.
(2) A negative notice issued to a person cancels any current
assessment notice or interim negative notice that has previously
30 been issued to the person.
page 22
Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
Prohibitions relating to child-related work Division 5
s. 22
(3) An interim negative notice issued to a person cancels any
current assessment notice that has previously been issued to the
person.
Division 5 -- Prohibitions relating to child-related work
5 22. Employers not to employ certain people in child-related
employment
(1) In this section --
"employer" means a person who employs, or proposes to
employ, another person in child-related employment.
10 (2) An employer must not employ a person in child-related
employment if --
(a) the employer --
(i) is aware of a Class 1 offence or a Class 2 offence
of which the person has been convicted; or
15 (ii) is aware that the person has a pending charge in
respect of a Class 1 offence or a Class 2 offence;
and
(b) the person does not have a current assessment notice and
has not made an application for an assessment notice
20 that is pending.
Penalty: a fine of $60 000 and imprisonment for 5 years.
(3) An employer must not employ a person in child-related
employment if the employer is aware that a negative notice or
an interim negative notice has been issued to the person and is
25 current.
Penalty: a fine of $60 000 and imprisonment for 5 years.
(4) An employer must not employ a person in child-related
employment in connection with a child care service if the
person does not have a current assessment notice and has not
30 made an application for an assessment notice that is pending.
Penalty: a fine of $12 000 and imprisonment for 12 months.
page 23
Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 5 Prohibitions relating to child-related work
s. 23
(5) An employer must not employ a person in child-related
employment if the employer is aware that the person has
withdrawn an application for an assessment notice.
Penalty: a fine of $12 000 and imprisonment for 12 months.
5 (6) An employer must not employ a person in child-related
employment if --
(a) the person has been employed by the employer in that
employment for more than 5 days in a calendar year;
and
10 (b) the person does not have a current assessment notice and
has not made an application for an assessment notice
that is pending.
Penalty: a fine of $12 000 and imprisonment for 12 months.
(7) Subsection (6) does not apply in relation to the employment of a
15 person if subsection (2), (3), (4) or (5) applies in relation to that
employment.
(8) A person charged with an offence under this section may be
convicted of another offence under this section if that offence is
established by the evidence.
20 23. People issued with negative notice or interim negative notice
not to carry out child-related work
If a negative notice or an interim negative notice has been
issued to a person and is current, the person must not --
(a) be employed in child-related employment; or
25 (b) carry on a child-related business.
Penalty: a fine of $60 000 and imprisonment for 5 years.
24. People without current assessment notice not to carry out
child-related work
A person who does not have a current assessment notice must
30 not --
(a) be employed in child-related employment; or
page 24
Working with Children (Criminal Record Checking) Bill 2004
Assessment notices and negative notices Part 2
Review by State Administrative Tribunal Division 6
s. 25
(b) carry on a child-related business.
Penalty: a fine of $60 000 and imprisonment for 5 years.
25. Defences for section 24
(1) It is a defence to a charge of an offence under section 24 to
5 prove that --
(a) at the time the offence is alleged to have been
committed, the person charged had applied for an
assessment notice and the application was pending; and
(b) the application was not later withdrawn.
10 (2) Subsection (1) does not apply to a person convicted of a Class 1
offence (other than a Class 1 offence committed by the person
when a child) at the time the offence is alleged to have been
committed.
(3) It is a defence to a charge of an offence under section 24 to
15 prove that the person charged was employed in child-related
employment or carried on a child-related business, as the case
requires, on no more than 5 days during the calendar year in
which the offence is alleged to have occurred.
(4) Subsection (3) does not apply to a person --
20 (a) convicted of a Class 1 offence (other than a Class 1
offence committed by the person when a child); or
(b) carrying out child-related work in connection with a
child care service.
Division 6 -- Review by State Administrative Tribunal
25 26. Review by State Administrative Tribunal
(1) In this section --
"defined period" means --
(a) in relation to a decision by the CEO to issue a
negative notice to a person -- 28 days after the date
30 of the negative notice; or
page 25
Working with Children (Criminal Record Checking) Bill 2004
Part 2 Assessment notices and negative notices
Division 6 Review by State Administrative Tribunal
s. 26
(b) in relation to a decision by the CEO not to grant an
application for a negative notice issued to a person to
be cancelled -- 28 days after the date of the notice
given to the person under section 19(10).
5 (2) A person may apply to the State Administrative Tribunal within
the defined period for a review of a decision by the CEO --
(a) to issue a negative notice to the person; or
(b) not to grant an application for a negative notice issued to
the person to be cancelled.
10 (3) A decision that is the subject of an application under
subsection (2) continues to have effect pending the outcome of
the review, unless the State Administrative Tribunal orders
otherwise.
page 26
Working with Children (Criminal Record Checking) Bill 2004
Changes in criminal record and criminal record checks Part 3
Relevant changes in criminal record Division 1
s. 27
Part 3 -- Changes in criminal record and criminal
record checks
Division 1 -- Relevant changes in criminal record
27. Meaning of relevant change in criminal record and
5 requirement to give notice of that change
(1) For the purposes of this Division, there is a relevant change in a
person's criminal record, whether or not the person has a
criminal record, if the person is charged with or convicted of a
Class 1 offence or a Class 2 offence.
10 (2) A requirement imposed on a person under this Division to give
notice about a relevant change in a person's criminal record
does not require the person to give any information about the
change except that the change has occurred.
28. Relevant change in criminal record of certain applicants
15 (1) This section applies to a person if --
(a) the person has applied to the CEO --
(i) for an assessment notice; or
(ii) for a negative notice issued to the person to be
cancelled;
20 and
(b) the application is pending.
(2) The person must give written notice to the CEO of a relevant
change in the person's criminal record as soon as is practicable
after the change occurs.
25 Penalty: a fine of $60 000 and imprisonment for 5 years.
29. Relevant change in criminal record of people employed in
child-related employment
(1) A person employed in child-related employment must give the
person's employer written notice of a relevant change in the
page 27
Working with Children (Criminal Record Checking) Bill 2004
Part 3 Changes in criminal record and criminal record checks
Division 1 Relevant changes in criminal record
s. 30
person's criminal record as soon as is practicable after the
change occurs.
Penalty: a fine of $60 000 and imprisonment for 5 years.
(2) The employer must give the CEO written notice of a relevant
5 change in the employee's criminal record as soon as is
practicable after the employer is given notice under
subsection (1).
Penalty: a fine of $24 000 and imprisonment for 2 years.
30. Relevant change in criminal record of people carrying on
10 child-related business
A person carrying on a child-related business must give the
CEO written notice of a relevant change in the person's criminal
record as soon as is practicable after the change occurs.
Penalty: a fine of $60 000 and imprisonment for 5 years.
15 31. Relevant change in criminal record of other people
(1) This section applies to a person if --
(a) the person has a current assessment notice and is not
employed in child-related employment or carrying on a
child-related business; and
20 (b) there has been a relevant change in the person's criminal
record since the assessment notice was issued to the
person.
(2) A person to whom this section applies must not be employed in
child-related employment or carry on a child-related business
25 unless --
(a) the person has been issued with a further assessment
notice; or
(b) the person has applied for a further assessment notice
and the application is pending.
30 Penalty: a fine of $60 000 and imprisonment for 5 years.
page 28
Working with Children (Criminal Record Checking) Bill 2004
Changes in criminal record and criminal record checks Part 3
Relevant changes in criminal record Division 1
s. 32
(3) A person to whom subsection (2)(b) applies who is offered
child-related employment must give the person's proposed
employer written notice that --
(a) there has been a relevant change in the person's criminal
5 record since the person's current assessment notice was
issued; and
(b) the person has applied for a further assessment notice
and the application is pending.
Penalty: a fine of $60 000 and imprisonment for 5 years.
10 32. CEO to treat notice of relevant change in criminal record as
application for assessment notice
(1) The CEO is to treat a notice given to the CEO under
section 29(2) or 30 as an application for an assessment notice by
the person to whose criminal record there has been a relevant
15 change.
(2) If the person to whose criminal record there has been a relevant
change has a current assessment notice, section 12 applies to the
application as if a reference in that section to issuing an
assessment notice were a reference to issuing an assessment
20 notice or a further assessment notice.
33. People not to start or continue child-related work if
convicted of Class 1 offence
If the relevant change in a person's criminal record is the
person's conviction of a Class 1 offence (other than a Class 1
25 offence committed by the person when a child), the person must
not --
(a) be employed in child-related employment; or
(b) carry on a child-related business.
Penalty: a fine of $60 000 and imprisonment for 5 years.
page 29
Working with Children (Criminal Record Checking) Bill 2004
Part 3 Changes in criminal record and criminal record checks
Division 2 Criminal record checks
s. 34
Division 2 -- Criminal record checks
34. CEO may carry out criminal record check
(1) In this section --
"authorised person" means --
5 (a) the chief executive officer of the department of the
Public Service principally assisting the Minister in
the administration of the Sentencing Act 1995;
(b) the Commissioner; or
(c) the Director of Public Prosecutions under the
10 Director of Public Prosecutions Act 1991;
"criminal records agency" means --
(a) the Commissioner of the Australian Federal Police;
(b) the Commissioner (however designated) of the police
force of another State or a Territory or another
15 country; or
(c) a person or body that is --
(i) established under the law of another State, a
Territory or the Commonwealth; and
(ii) prescribed by the regulations for the purposes
20 of this definition.
(2) This section applies in respect of a person --
(a) who has a current assessment notice;
(b) who has applied to the CEO for an assessment notice;
(c) who has applied to the CEO for a negative notice to be
25 cancelled; or
(d) if the CEO is given a notice that is to be treated under
section 32(1) as an application by the person for an
assessment notice.
page 30
Working with Children (Criminal Record Checking) Bill 2004
Changes in criminal record and criminal record checks Part 3
Criminal record checks Division 2
s. 34
(3) The CEO may ask the Commissioner or a criminal records
agency for information or access to the respective records of the
Commissioner or the criminal records agency --
(a) to determine whether the person has a criminal record;
5 and
(b) if the person has a criminal record, to obtain details of
the criminal record.
(4) If the person has a criminal record, the CEO may ask an
authorised person or a criminal records agency for information
10 about the circumstances of a conviction or charge mentioned in
the criminal record.
(5) An authorised person may comply with a request made by the
CEO under this section despite another Act or law.
page 31
Working with Children (Criminal Record Checking) Bill 2004
Part 4 General
s. 35
Part 4 -- General
35. False or misleading information
A person must not give information for the purposes of this Act
that the person knows to be false or misleading in a material
5 particular to --
(a) a person who employs, or proposes to employ, the
person in child-related employment; or
(b) the CEO.
Penalty: a fine of $24 000 and imprisonment for 2 years.
10 36. Return of assessment notice to CEO
A person must return to the CEO an assessment notice issued to
the person as soon as is practicable after --
(a) the person is convicted of a Class 1 offence (other than a
Class 1 offence committed by the person when a child);
15 or
(b) the CEO issues a negative notice or an interim negative
notice to the person.
Penalty: a fine of $12 000 and imprisonment for 12 months.
37. Exchange of information with corresponding authorities
20 (1) In this section --
"corresponding authority" means a person or body in another
jurisdiction with functions that correspond to the functions
of the CEO under this Act.
(2) The CEO may disclose to a corresponding authority information
25 obtained under this Act that relates to a person's criminal record
or to an application made by, or a notice issued to, a person
under this Act.
page 32
Working with Children (Criminal Record Checking) Bill 2004
General Part 4
s. 38
(3) The CEO may ask a corresponding authority to disclose to the
CEO information obtained by the corresponding authority
that --
(a) corresponds to the information referred to in
5 subsection (2); and
(b) relates to a person who has made an application, or been
issued with a notice, under this Act.
38. CEO may disclose to certain bodies information about issue
of negative notices and interim negative notices
10 (1) In this section --
"Department" means the department of the Public Service
principally assisting the Minister in the administration of
the Children and Community Services Act 2004;
"public authority" means --
15 (a) a department of the Public Service; or
(b) a body, whether incorporated or not, that is
established or continued for a public purpose under a
written law and that, under the authority of a written
law, performs a statutory function on behalf of the
20 State.
(2) If the CEO considers that it is in the public interest to do so, the
CEO may give written notice to a public authority prescribed by
the regulations that a negative notice or an interim negative
notice has been issued to a person.
25 (3) The CEO may give written notice to the chief executive officer
of the Department that a negative notice or an interim negative
notice has been issued to a person if the CEO reasonably
believes that the person --
(a) holds a licence under the Children and Community
30 Services Act 2004 Part 8; or
page 33
Working with Children (Criminal Record Checking) Bill 2004
Part 4 General
s. 39
(b) is a nominated supervising officer, a supervising officer
or a managerial officer, as defined in section 197 of that
Act.
(4) If --
5 (a) the CEO has given notice in relation to a person under
subsection (2) or (3); and
(b) subsequently --
(i) if that notice related to the issue of a negative
notice to the person -- the negative notice is
10 cancelled; or
(ii) an assessment notice is issued to the person,
the CEO is to give written notice of that fact to the public
authority or the chief executive officer of the Department, as the
case requires.
15 39. Confidentiality of information
A person who is or has been engaged in the performance of
functions under this Act must not, directly or indirectly, disclose
or make use of information obtained in the course of performing
those functions except --
20 (a) for the purpose of, or in connection with, performing
functions under this Act;
(b) for the purpose of the investigation of a suspected
offence under this Act or the conduct of proceedings
against a person for an offence under this Act;
25 (c) as required or allowed under this Act or another written
law; or
(d) with the written consent of the Minister or the person to
whom the information relates.
Penalty: a fine of $24 000 and imprisonment for 2 years.
page 34
Working with Children (Criminal Record Checking) Bill 2004
General Part 4
s. 40
40. Protection from liability for wrongdoing
(1) A person does not incur civil liability for anything that the
person has done in good faith in the performance or purported
performance of a function under this Act.
5 (2) The protection given by subsection (1) applies even though the
thing done as described in that subsection may have been
capable of being done whether or not this Act had been enacted.
(3) The State is also relieved of any liability that it might otherwise
have had for another person having done anything as described
10 in subsection (1).
(4) In this section, a reference to the doing of anything includes a
reference to the omission to do anything.
41. Employer to comply with Act despite other laws etc.
(1) If it would be a contravention of a provision of this Act for a
15 person (the "employer") to employ another person in
child-related employment, the employer is to comply with the
provision despite another Act or law or any industrial award,
order or agreement.
(2) The employer does not commit an offence or incur any liability
20 because, in complying with the provision, the employer does not
start or continue to employ the person in child-related
employment.
(3) Nothing in this section operates to affect a person's right to seek
or obtain a remedy under the Industrial Relations Act 1979
25 unless --
(a) the remedy is for the dismissal of the person by the
employer;
(b) the reason the employer dismissed the person was to
comply with this Act; and
30 (c) the grounds on which the person seeks the remedy relate
to the fact that the person was dismissed for that reason.
page 35
Working with Children (Criminal Record Checking) Bill 2004
Part 4 General
s. 42
42. CEO may require information to confirm compliance with
Act
(1) In this section --
"regulated person" means a person --
5 (a) who employs another person in child-related
employment; or
(b) who carries on a child-related business.
(2) The CEO may require a regulated person, by written notice or
otherwise, to provide, within a reasonable specified time,
10 specified information or documents that the CEO reasonably
needs to establish that the regulated person has complied with
this Act.
(3) A regulated person who does not provide the specified
information or documents within the specified time commits an
15 offence.
Penalty: a fine of $12 000 and imprisonment for 12 months.
43. Liability of partners for certain offences
(1) If --
(a) a breach of a provision of this Act by a person (the
20 "employer") who employs, or proposes to employ,
another person in child-related employment is an
offence; and
(b) the employer that breaches the provision is a
partnership,
25 the offence is taken to have been committed by each of the
partners in the partnership.
(2) Subsection (1) does not apply to a partner who proves that --
(a) the offence was committed without the partner's consent
or connivance; and
30 (b) the partner exercised all due diligence to prevent the
commission of the offence that ought to have been
page 36
Working with Children (Criminal Record Checking) Bill 2004
General Part 4
s. 44
exercised having regard to the nature of the partner's
functions and to all the circumstances.
44. Evidentiary matters
(1) In proceedings for an offence against this Act, an allegation in
5 the complaint of any of the following matters is, in the absence
of evidence to the contrary, taken to be proved --
(a) that at a specified time a specified person did not have a
current assessment notice;
(b) that at a specified time a negative notice or an interim
10 negative notice had been issued to a specified person
and was current.
(2) In proceedings for an offence against subsection (2), (3) or (5)
of section 22, an allegation in the complaint that an employer
was aware of a specified matter referred to in that subsection is,
15 in the absence of evidence to the contrary, taken to be proved.
(3) In proceedings for an offence against this Act, an assessment
notice, negative notice, interim negative notice or other notice
issued under this Act may be proved by tendering a copy of it
certified by the CEO to be a true copy of the original.
20 (4) Unless the contrary is proved, it is to be presumed that a
document purporting to have been signed by the CEO was
signed by a person who at the time was the CEO.
(5) Unless the contrary is proved, it is to be presumed that a
document purporting to have been signed by a delegate of the
25 CEO was signed by a person who at the time was a delegate of
the CEO and was authorised to sign it.
(6) This section is in addition to, and does not affect the operation
of, the Evidence Act 1906.
page 37
Working with Children (Criminal Record Checking) Bill 2004
Part 4 General
s. 45
45. Delegation
(1) The CEO may delegate to a public sector employee or, with the
approval of the Minister, another person any power or duty of
the CEO under another provision of this Act.
5 (2) In subsection (1) --
"public sector employee" means an employee as defined in the
Public Sector Management Act 1994 section 3(1);
(3) The delegation is to be in writing signed by the CEO.
(4) A person to whom a power or duty is delegated under this
10 section cannot subdelegate that power or duty unless the person
is expressly authorised by the CEO to do so.
(5) A person exercising or performing a power or duty that has been
delegated to the person under this section is taken to do so in
accordance with the terms of the delegation unless the contrary
15 is shown.
(6) Nothing in this section limits the ability of the CEO to perform
a function through an officer of the Department or an agent.
46. Regulations
(1) The Governor may make regulations prescribing all matters that
20 are required or permitted by this Act to be prescribed, or are
necessary or convenient to be prescribed for giving effect to the
purposes of this Act.
(2) Without limiting subsection (1), the regulations may --
(a) provide for the receipt and storage of information
25 obtained under this Act that relates to a person's
criminal record and the restriction of access to that
information; and
(b) create offences and provide, in respect of an offence so
created, for the imposition of a penalty not exceeding
30 $6 000.
page 38
Working with Children (Criminal Record Checking) Bill 2004
General Part 4
s. 47
47. Minister to review and report on Act
(1) The Minister is to carry out a review of the operation and
effectiveness of this Act as soon as is practicable after the fifth
anniversary of the commencement of this section.
5 (2) The Minister is to prepare a report based on the review and, as
soon as is practicable after the report is prepared, is to cause it
to be laid before each House of Parliament.
page 39
Working with Children (Criminal Record Checking) Bill 2004
Part 5 Consequential amendments to the Children and Community
Services Act 2004
s. 48
Part 5 -- Consequential amendments to the Children
and Community Services Act 2004
48. The Act amended
The amendments in this Part are to the Children and Community
5 Services Act 2004*.
[* Act No. 34 of 2004.]
49. Section 197 amended
(1) Section 197 is amended by inserting in the appropriate
alphabetical positions the following definitions --
10 "
"assessment notice" has the meaning given to that
term in the Working with Children (Criminal
Record Checking) Act 2004 section 4;
"interim negative notice" has the meaning given to
15 that term in the Working with Children (Criminal
Record Checking) Act 2004 section 4;
"negative notice" has the meaning given to that term
in the Working with Children (Criminal Record
Checking) Act 2004 section 4;
20 ".
(2) Section 197 is amended in the definition of "managerial officer"
by deleting "corporate applicant," and inserting instead --
" body corporate other than a public authority, ".
50. Section 207 amended
25 Before section 207(2)(a) the following paragraph is inserted --
"
(aa) has a current assessment notice;
".
page 40
Working with Children (Criminal Record Checking) Bill 2004
Consequential amendments to the Children and Community Part 5
Services Act 2004
s. 51
51. Section 208 amended
After section 208(2)(b) the following paragraph is inserted --
"
(ba) the nominated supervising officer and each
5 managerial officer have a current assessment
notice;
".
52. Section 209 amended
After section 209(2)(b) the following paragraph is inserted --
10 "
(ba) the nominated supervising officer has a current
assessment notice;
".
53. Section 220 amended
15 Section 220(1) is amended after paragraph (b) by deleting "or"
and inserting --
"
(ba) the licensee has contravened the Working with
Children (Criminal Record Checking) Act 2004
20 section 22;
(bb) if the licensee is an individual -- the licensee
has been issued with an interim negative notice;
(bc) if the licensee is a body corporate other than a
public authority -- the supervising officer or a
25 managerial officer has been issued with an
interim negative notice;
(bd) if the licensee is a public authority -- the
supervising officer has been issued with an
interim negative notice; or
30 ".
page 41
Working with Children (Criminal Record Checking) Bill 2004
Part 5 Consequential amendments to the Children and Community
Services Act 2004
s. 54
54. Section 221 amended
Section 221(1) is amended by deleting "section 220(1)(c)," and
inserting instead --
" section 220(1)(ba), (bb), (bc), (bd) or (c), ".
5 55. Section 224 amended
Section 224(1) is amended after paragraph (c) by deleting "or"
and inserting --
"
(ca) the licensee has contravened the Working with
10 Children (Criminal Record Checking) Act 2004
section 22, whether or not the licence is or has
been suspended on the grounds of that
contravention;
(cb) there are reasonable grounds for believing
15 that --
(i) if the licensee is an individual -- the
licensee has been issued with a negative
notice;
(ii) if the licensee is a body corporate other
20 than a public authority -- the
supervising officer or a managerial
officer has been issued with a negative
notice; or
(iii) if the licensee is a public authority --
25 the supervising officer has been issued
with a negative notice;
or
".
page 42
Working with Children (Criminal Record Checking) Bill 2004
Transitional provisions Part 6
s. 56
Part 6 -- Transitional provisions
56. Terms used in this Part
In this Part --
"commencement day" means the day on which section 24
5 comes into operation.
57. People carrying on a child-related business
(1) Until the day prescribed by the regulations for the purposes of
this section, section 24(b) does not apply to a person who
carries on a child-related business.
10 (2) Different days may be prescribed by the regulations for the
purposes of subsection (1) by reference to the following --
(a) the kind of child-related work carried out by the person;
(b) the kind of person who carries out child-related work;
(c) the kind of place where child-related work is carried out
15 by the person;
(d) whether the person is a continuing operator or a new
operator.
(3) In subsection (2) --
"continuing operator" means a person --
20 (a) who carried on a child-related business immediately
before the commencement day; and
(b) who continues to carry on that same business;
"new operator" means a person who starts to carry on a
child-related business on or after the commencement day
25 (whether or not the person has ever carried on a
child-related business before that day).
page 43
Working with Children (Criminal Record Checking) Bill 2004
Part 6 Transitional provisions
s. 58
58. Volunteers continuing in child-related employment
(1) In this section --
"continuing volunteer" means a person --
(a) who was employed on a voluntary basis in
5 child-related employment by another person
immediately before the commencement day; and
(b) who continues to be employed on that basis in that
employment by that person.
(2) Until the day prescribed by the regulations for the purposes of
10 this subsection, sections 22(6) and 24(a) do not apply in relation
to a person being employed in child-related employment as a
continuing volunteer.
(3) Different days may be prescribed by the regulations for the
purposes of subsection (2) by reference to the ages of the
15 children in respect of whom child-related work is carried out by
a continuing volunteer.
59. Ministers of religion etc. continuing in child-related
employment
(1) In this section --
20 "continuing minister of religion" means a person --
(a) who was employed in child-related employment by
another person immediately before the
commencement day as a minister of religion or in any
other capacity for the purposes of a religious
25 organisation; and
(b) who continues to be employed in that employment by
that person in that capacity.
(2) Until the day prescribed by the regulations for the purposes of
this subsection, sections 22(6) and 24(a) do not apply in relation
30 to a person being employed in child-related employment as a
continuing minister of religion.
page 44
Working with Children (Criminal Record Checking) Bill 2004
Transitional provisions Part 6
s. 60
60. Other people in child-related employment
(1) This section does not apply to a person to whom section 58
or 59 applies.
(2) Until the day prescribed by the regulations for the purposes of
5 this subsection, sections 22(6) and 24(a) do not apply in relation
to a person being employed in child-related employment.
(3) Different days may be prescribed by the regulations for the
purposes of subsection (2) by reference to the following --
(a) the kind of child-related work carried out by the person;
10 (b) the kind of person who carries out child-related work;
(c) the kind of place where child-related work is carried out
by the person;
(d) whether the person is a continuing employee or a new
employee;
15 (e) whether a criminal record check (however described)
has been made in respect of the person --
(i) under another Act; or
(ii) as prescribed by the regulations.
(4) In subsection (3) --
20 "continuing employee" means a person --
(a) who was employed in child-related employment by
another person immediately before the
commencement day; and
(b) who continues to be employed in that employment by
25 that person;
"new employee" means a person who starts to be employed in
child-related employment on or after the commencement
day (whether or not the person has ever been employed in
child-related employment before that day).
page 45
Working with Children (Criminal Record Checking) Bill 2004
Part 6 Transitional provisions
s. 61
61. Transitional regulations
(1) If this Part does not provide sufficiently for a matter or issue of
a transitional nature that arises as a result of the coming into
operation of this Act, the Governor may make regulations
5 prescribing all matters that are required, necessary or convenient
to be prescribed for providing for the matter or issue.
(2) Regulations made under subsection (1) may provide that
specified provisions of this Act --
(a) do not apply; or
10 (b) apply with specified modifications,
to or in relation to any specified person, matter or issue.
(3) If regulations made under subsection (1) provide that a specified
state of affairs is taken to have existed, or not to have existed,
on and from a day that is earlier than the day on which the
15 regulations are published in the Gazette but not earlier than the
commencement day, the regulations have effect according to
their terms.
(4) In subsections (2) and (3) --
"specified" means specified or described in the regulations.
20 (5) If regulations contain a provision referred to in subsection (3),
the provision does not operate so as --
(a) to affect in a manner prejudicial to any person (other
than the State or an authority of the State) the rights of
that person existing before the day of publication; or
25 (b) to impose liabilities on any person (other than the State
or an authority of the State) in respect of anything done
or omitted to be done before the day of publication.
page 46
Working with Children (Criminal Record Checking) Bill 2004
Class 1 offences Schedule 1
Schedule 1 -- Class 1 offences
[s. 7(1)]
Enactment Description of offence
The Criminal Code
s. 320(2) Sexually penetrating child under 13
s. 320(3) Procuring, inciting or encouraging child
under 13 to engage in sexual behaviour
s. 321A Sexual relationship with child under 16 (if the
offence includes at least one occasion referred
to in s. 321A(1) when the child against whom
the offence is committed is under 13)
s. 329(2) Sexually penetrating child known to be lineal
relative or de facto child (if the child against
whom the offence is committed is under 13)
s. 329(3) Procuring, inciting or encouraging child
known to be lineal relative or de facto child to
engage in sexual activity (if the child against
whom the offence is committed is under 13)
Crimes Act 1914 of the
Commonwealth
s. 50BA Sexual intercourse with child under 16 (if the
child against whom the offence is committed
is under 13)
s. 50BB Inducing child under 16 to engage in sexual
intercourse (if the child against whom the
offence is committed is under 13)
page 47
Working with Children (Criminal Record Checking) Bill 2004
Schedule 2 Class 2 offences
Schedule 2 -- Class 2 offences
[s. 7(2)]
Enactment Description of offence
The Criminal Code
s. 181 Carnal knowledge of animal
s. 186 Occupier or owner allowing child to be on
premises for unlawful carnal knowledge
s. 187 Facilitating sexual offences against children
outside Western Australia
s. 279 (as read with s. 282) Murder
s. 280 (as read with s. 287) Manslaughter
s. 281A (as read with Infanticide
s. 287A)
s. 290 Killing unborn child
s. 297 Grievous bodily harm
s. 320(4) Indecent dealing with child under 13
s. 320(5) Procuring, inciting or encouraging child
under 13 to do indecent act
s. 320(6) Indecently recording child under 13
s. 321 Sexual offences against child of or over 13
and under 16
s. 321A Sexual relationship with child under 16 (if the
offence does not include any occasion referred
to in s. 321A(1) when the child against whom
the offence is committed is under 13)
s. 322 Sexual offences against child of or over 16 by
person in authority etc.
s. 323 Indecent assault
s. 324 Aggravated indecent assault
s. 325 Sexual penetration without consent
s. 326 Aggravated sexual penetration without
consent
page 48
Working with Children (Criminal Record Checking) Bill 2004
Class 2 offences Schedule 2
Enactment Description of offence
s. 327 Sexual coercion
s. 328 Aggravated sexual coercion
s. 329(2) Sexually penetrating child known to be lineal
relative or de facto child (if the child against
whom the offence is committed is 13 or over)
s. 329(3) Procuring, inciting or encouraging child
known to be lineal relative or de facto child to
engage in sexual activity (if the child against
whom the offence is committed is 13 or over)
s. 329(4) Indecent dealing with child known to be lineal
relative or de facto child
s. 329(5) Procuring, inciting or encouraging child
known to be lineal relative or de facto child to
engage in sexual activity
s. 329(6) Indecently recording child known to be lineal
relative or de facto child
s. 330 Sexual offences against incapable person
s. 331B Sexual servitude
s. 331C Conducting business involving sexual
servitude
s. 331D Deceptive recruiting for commercial sexual
services
s. 332 Kidnapping
s. 343 Child stealing
Classification (Publications,
Films and Computer
Games) Enforcement
Act 1996
s. 60 Child pornography
s. 101 Objectionable material offences (if the
objectionable material is child pornography)
page 49
Working with Children (Criminal Record Checking) Bill 2004
Schedule 2 Class 2 offences
Enactment Description of offence
Prostitution Act 2000
s. 16 Causing, permitting or seeking to induce child
to act as prostitute
s. 17 Obtaining payment for prostitution by child
s. 18 Agreement for prostitution by child
Children and Community
Services Act 2004
s. 101 Failing to protect child from significant harm
s. 102 Leaving child unsupervised in vehicle
s. 192 Employing child, or permitting child to be
employed, to perform in indecent, obscene or
pornographic manner
Crimes Act 1914 of the
Commonwealth
s. 50BA Sexual intercourse with child under 16 (if the
child against whom the offence is committed
is 13 or over)
s. 50BB Inducing child under 16 to engage in sexual
intercourse (if the child against whom the
offence is committed is 13 or over)
s. 50BC Sexual conduct involving a child under 16
s. 50BD Inducing child under 16 to be involved in
sexual conduct
s. 50DA Benefiting from offence against Part IIIA
s. 50DB Encouraging offence against Part IIIA
Criminal Code Act 1995 of
the Commonwealth
s. 474.19 Using a carriage service for child pornography
material
s. 474.20 Possessing, controlling, producing, supplying
or obtaining child pornography material for
use through a carriage service
page 50
Working with Children (Criminal Record Checking) Bill 2004
Class 2 offences Schedule 2
Enactment Description of offence
s. 474.22 Using a child carriage service for child abuse
material
s. 474.23 Possessing, controlling, producing, supplying
or obtaining child abuse material for use
through a carriage service
s. 474.26 Using a carriage service to procure persons
under 16
s. 474.27 Using a carriage service to "groom" persons
under 16
Customs Act 1901 of the
Commonwealth
s. 233BAB Special offences relating to tier 2 goods (if the
offence involves items of child pornography
or of child abuse material)
page 51
Working with Children (Criminal Record Checking) Bill 2004
Defined Terms
Defined Terms
[This is a list of terms defined and the provisions where they are defined.
The list is not part of the law.]
Defined Term Provision(s)
another jurisdiction........................................................................................... 4
approved .......................................................................................................... 4
assessment notice ............................................................................................. 4
authorised person .......................................................................................34(1)
CEO................................................................................................................. 4
charge .............................................................................................................. 4
child................................................................................................................. 4
child care service.............................................................................................. 4
child-related business ....................................................................................... 4
child-related employment ................................................................................. 4
child-related work ....................................................................................4, 6(1)
Class 1 offence .........................................................................................4, 7(1)
Class 2 offence .........................................................................................4, 7(2)
commencement day........................................................................................ 56
Commissioner .................................................................................................. 4
contact ............................................................................................................. 4
contact with a child ..................................................................................... 6(2)
continuing employee ..................................................................................60(4)
continuing minister of religion....................................................................59(1)
continuing operator ....................................................................................57(3)
continuing volunteer...................................................................................58(1)
conviction ........................................................................................................ 4
correct notice..............................................................................................20(1)
corresponding authority..............................................................................37(1)
criminal record ................................................................................................. 4
criminal record check ....................................................................................... 4
defined period ............................................................................................26(1)
Department ............................................................................................4, 38(1)
educational institution for children.................................................................... 4
employee....................................................................................................16(1)
employer ............................................................. 9(1), 16(1), 22(1), 41(1), 43(1)
first notice ..................................................................................................20(2)
interim negative notice ..................................................................................... 4
managerial officer ....................................................................................... 5(1)
negative notice ................................................................................................. 4
new employee ............................................................................................60(4)
new operator ..............................................................................................57(3)
non-conviction charge ...................................................................................... 4
officer of the Department.................................................................................. 4
page 52
Working with Children (Criminal Record Checking) Bill 2004
Defined Terms
parent............................................................................................................... 4
pending charge ................................................................................................. 4
public authority ..........................................................................................38(1)
public sector employee ...............................................................................45(2)
regulated person .........................................................................................42(1)
relative............................................................................................................. 4
specified.................................................................................................4, 61(4)
work ................................................................................................................ 4
page 53
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