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New South Wales
Commission for Children and Young
People Amendment Bill 2005
Contents
Page
1 Name of Act 2
2 Commencement 2
3 Amendment of Commission for Children and Young People
Act 1998 No 146 2
4 Amendment of other Acts 2
5 Repeals 2
Schedule 1 Amendment of Commission for Children and Young People
Act 1998 3
Schedule 2 Amendment of other Acts 29
I certify that this PUBLIC BILL, which originated in the LEGISLATIVE ASSEMBLY,
has finally passed the LEGISLATIVE COUNCIL and the LEGISLATIVE ASSEMBLY of
NEW SOUTH WALES.
Clerk of the Legislative Assembly.
Legislative Assembly,
Sydney, , 2005
New South Wales
Commission for Children and Young
People Amendment Bill 2005
Act No , 2005
An Act to amend the Commission for Children and Young People Act 1998 with
respect to child-related employment and the functions of the Commission for
Children and Young People; to repeal the Child Protection (Prohibited Employment)
Act 1998; and for other purposes.
I have examined this Bill, and find it to correspond in all respects with the Bill
as finally passed by both Houses.
Chairman of Committees of the Legislative Assembly.
Clause 1 Commission for Children and Young People Amendment Bill 2005
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Commission for Children and Young People Amendment
Act 2005.
2 Commencement
This Act commences on a day or days to be appointed by proclamation.
3 Amendment of Commission for Children and Young People Act 1998
No 146
The Commission for Children and Young People Act 1998 is amended
as set out in Schedule 1.
4 Amendment of other Acts
The Acts specified in Schedule 2 are amended as set out in that
Schedule.
5 Repeals
(1) The Child Protection (Prohibited Employment) Act 1998 is repealed.
(2) The Commission for Children and Young People Regulation 2000 is
repealed.
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
Schedule 1 Amendment of Commission for Children
and Young People Act 1998
(Section 3)
[1] Long title
Omit "to provide for employment screening for child-related employment;".
Insert instead "to provide for safeguards and impose prohibitions relating to
child-related employment;".
[2] Whole Act (other than Schedule 3), except where otherwise amended by
this Schedule
Omit "employment screening" wherever occurring.
Insert instead "background checking".
[3] Section 3 Definitions
Omit the definition of employment screening from section 3 (1).
Insert instead in alphabetical order:
background checking--see Division 3 of Part 7.
review application--see Part 7.
[4] Section 5 Commissioner
Omit section 5 (2). Insert instead:
(2) The employment of the Commissioner is subject to Part 3.1 of the
Public Sector Employment and Management Act 2002, but is not
subject to Chapter 2 of that Act.
[5] Section 5 (3)
Omit "section 42F of the Public Sector Management Act 1988".
Insert instead "section 68 of the Public Sector Employment and Management
Act 2002".
[6] Section 5 (4)
Omit "section 42Q of the Public Sector Management Act 1988".
Insert instead "section 77 of the Public Sector Employment and Management
Act 2002".
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Commission for Children and Young People Amendment Bill 2005
Schedule 1 Amendment of Commission for Children and Young People Act 1998
[7] Section 7 Staff of Commission
Omit "Part 2 of the Public Sector Management Act 1988" from section 7 (1).
Insert instead "Chapter 2 of the Public Sector Employment and Management
Act 2002".
[8] Section 11 Principal functions of Commission
Insert after section 11 (h):
(h1) to determine or intervene in review applications
concerning prohibited persons,
[9] Section 11 (i)
Omit "screening". Insert instead "background checking".
[10] Section 11 (i)
Insert "Division 3 of" before "Part 7".
[11] Section 11 (l) and (m)
Insert after section 11 (k):
(l) to encourage organisations to develop their capacity to be
safe and friendly for children,
(m) to develop and administer a voluntary accreditation
scheme for programs for persons who have committed
sexual offences against children.
[12] Section 14A
Omit the section. Insert instead:
14A Powers of Commission for Children and Young People to compel
production of information
(1) The Commission for Children and Young People may, by notice
in writing, require any government agency to provide the
Commission with information (including documents) relevant to
an assessment of whether a person poses a risk to the safety of
children.
(2) A notice under subsection (1) may be given for the purposes of:
(a) preparing submissions to the Industrial Relations
Commission or Administrative Decisions Tribunal under
Subdivision 2 of Division 2 of Part 7 of this Act or section
16 of the Child Protection (Offenders Registration) Act
2000, or
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
(b) considering a review application made to the Commission.
(3) A government agency to which any such notice is given is by this
section authorised and required to provide the Commission for
Children and Young People with the information sought by the
notice.
(4) The Commission for Children and Young People may, by notice
in writing, request a person other than a government agency to
provide the Commission with a statement setting out information
specified by the notice relevant to an assessment of whether a
person poses a risk to the safety of children for the purposes of
considering a review application made to the Commission.
(5) A person other than a government agency to whom any such
request is given is by this section authorised to provide the
Commission for Children and Young People with the
information requested.
(6) A notice under this section may specify a day on or before which
the notice is to be complied with.
(7) If documents are given to the Commission under this section, the
Commission:
(a) may take possession of, and make copies of or take
extracts from, the documents, and
(b) may keep possession of the documents for such period as
is necessary for the purposes of preparing the submission
or considering an application, and
(c) during that period must permit them to be inspected at all
reasonable times by the persons who would be entitled to
inspect them if they were not in the possession of the
Commission.
[13] Section 15A Reports under Children and Young Persons (Care and
Protection) Act 1998
Insert "or 27 (Mandatory reporting)" after "harm)".
[14] Section 15A (2)
Insert at the end of section 15A:
(2) A report referred to in section 29 of the Children and Young
Persons (Care and Protection) Act 1998 may be provided to the
Commission in accordance with a requirement under a provision
of this Act. Any such report may not be subsequently dealt with
by the Commission in a manner that contravenes that section,
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Schedule 1 Amendment of Commission for Children and Young People Act 1998
except to the extent that it is necessary for the Commission to do
so in the exercise of its functions.
[15] Section 15B
Insert after section 15A:
15B Power to compel production of information for monitoring or
auditing purposes
(1) For the purposes of exercising its monitoring or auditing
functions under Part 7, the Commission may, by notice in
writing, require an officer of a government agency or an
employer or employer-related body to do any one or more of the
following:
(a) to provide to the Commission, on or before a day specified
in the notice, a statement setting out such information as is
so specified relating to the matters being monitored or
audited,
(b) to provide to the Commission, on or before a day specified
in the notice, such documents as are so specified relating
to the matters being monitored or audited.
(2) A person who:
(a) fails, without reasonable excuse, to comply with a
requirement of a notice under this section, or
(b) provides the Commission with information that the person
knows is false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: 50 penalty units.
(3) A notice may specify the manner in which a statement or
documents may be given to the Commission.
(4) If documents are given to the Commission under this section, the
Commission:
(a) may take possession of, and make copies of or take
extracts from, the documents, and
(b) may keep possession of the documents for such period as
is necessary for the purposes of exercising its monitoring
or auditing functions, and
(c) during that period must permit them to be inspected at all
reasonable times by the persons who would be entitled to
inspect them if they were not in the possession of the
Commission.
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Amendment of Commission for Children and Young People Act 1998 Schedule 1
(5) In any proceedings for an offence against this section, the onus of
proving that a person had a reasonable excuse lies with the
defendant.
(6) Words and expressions used in this section have the same
meanings as they have in Part 7.
[16] Section 20 Hearings in special inquiries
Omit "prohibiting or restricting the publication or disclosure of evidence or
other" from section 20 (8).
[17] Section 20 (9)
Insert after section 20 (8):
(9) If it is shown to the satisfaction of the Commission that any
person is substantially and directly interested in the
subject-matter of a special inquiry, the Commission may
authorise the person to appear and be heard at the hearing or a
specified part of the hearing.
[18] Sections 20A and 20B
Insert after section 20:
20A Legal representation
(1) A person appearing at a hearing of a special inquiry is not entitled
to be represented by an Australian legal practitioner unless the
Commission authorises such representation.
(2) The Commission is to give a person a reasonable opportunity to
make submissions regarding representation by an Australian
legal practitioner.
(3) The Commission is not to give an authorisation unless satisfied
that the authorisation is necessary or desirable in the public
interest or for the safety, welfare or well-being of a child.
20B Restriction on publication of evidence at private hearings
(1) The Commission may direct that:
(a) any evidence given before the Commission at a private
hearing of a special inquiry, or
(b) the contents of any document, or a description of any thing,
produced to the Commission at a private hearing, or
(c) any information that might enable a person who has given
or may be about to give evidence at a private hearing to be
identified or located, or
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Schedule 1 Amendment of Commission for Children and Young People Act 1998
(d) that fact that any person has given or may be about to give
evidence at a private hearing,
must not be published except in such manner, and to such
persons, as the Commission specifies.
(2) The Commission is not to give a direction unless satisfied that the
direction is necessary or desirable in the public interest or for the
safety, welfare or well-being of a child.
(3) A person must not make a publication in contravention of a
direction given under this section.
Maximum penalty: 20 penalty units.
[19] Part 7, heading
Omit "Employment screening".
Insert instead "Child-related employment".
[20] Part 7, Division 1, heading
Insert before section 31:
Division 1 Preliminary
[21] Sections 31 and 32
Omit the sections. Insert instead:
31 Object of Part
The object of this Part is to protect children:
(a) by prohibiting certain persons from being involved in
child-related employment, and
(b) by means of background checking for child-related
employment administered by the Commission and other
agencies.
32 Safety and welfare of children to be paramount consideration
The safety and welfare of children and, in particular, protecting
them from child abuse, is the paramount consideration in the
operation of this Part.
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
[22] Section 33 Definitions
Omit the definitions of child-related employment, employee, employer and
employment from section 33 (1).
Insert instead in alphabetical order:
child-related employment:
(a) means any employment of the following kind that
primarily involves direct contact with children where that
contact is not directly supervised by a person having the
capacity to direct the person in the course of the
employment:
(i) employment involving the provision of child
protection services,
(ii) employment in pre-schools, kindergartens and child
care centres (including residential child care
centres),
(iii) employment in schools or other educational
institutions (not being universities),
(iv) employment in detention centres (within the
meaning of the Children (Detention Centres) Act
1987),
(v) employment in refuges used by children,
(vi) employment in wards of public or private hospitals
in which children are patients,
(vii) employment in clubs, associations, movements,
societies, institutions or other bodies (including
bodies of a cultural, recreational or sporting nature)
having a significant child membership or
involvement,
(viii) employment in any religious organisation,
(ix) employment in entertainment venues where the
clientele is primarily children,
(x) employment as a babysitter or childminder that is
arranged by a commercial agency,
(xi) employment involving fostering or other child care,
(xii) employment involving regular provision of taxi
services for the transport of children with a
disability,
(xiii) employment involving the private tuition of
children,
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Commission for Children and Young People Amendment Bill 2005
Schedule 1 Amendment of Commission for Children and Young People Act 1998
(xiv) employment involving the direct provision of child
health services,
(xv) employment involving the provision of counselling
or other support services for children,
(xvi) employment on school buses,
(xvii) employment at overnight camps for children, and
(b) includes any other employment of a kind prescribed by the
regulations, but does not include any employment of a kind
excluded by the regulations.
conviction includes a finding that the charge for an offence is
proven, or that a person is guilty of an offence, even though the
court does not proceed to a conviction.
employee means any person who is engaged in employment.
employer includes:
(a) a person who, in the course of business, arranges for the
placement of a person in employment with others, or
(b) a person who engages a person under a contract to perform
work.
employment means (subject to the regulations):
(a) performance of work under a contract of employment, or
(b) performance of work as a self-employed person or as a
subcontractor, or
(c) performance of work as a volunteer for an organisation, or
(d) undertaking practical training as part of an educational or
vocational course, or
(e) performance of work as a minister, priest, rabbi, mufti or
other like religious leader or spiritual officer of a religion
or other member of a religious organisation, or
(f) performance of the duties of an authorised carer within the
meaning of the Children and Young Persons (Care and
Protection) Act 1998.
prohibited person--see section 33B.
[23] Section 33 (1), definition of "relevant apprehended violence order"
Omit "subsection (2)". Insert instead "subsection (6)".
[24] Section 33 (1), definition of "relevant criminal record"
Omit "subsection (2)". Insert instead "subsections (7) and (8)".
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
[25] Section 33 (1), definition of "relevant employment proceedings"
Omit "(subject to subsection (2))".
[26] Section 33 (1), definition of "reportable conduct"
Omit "(including a child pornography offence)" from paragraph (a).
[27] Section 33 (1), definition of "reportable conduct"
Insert after paragraph (a):
(a1) any child pornography offence or misconduct involving
child pornography, or
(a2) any child-related personal violence offence (within the
meaning of Division 2), or
(a3) an offence under section 21G or 21H of the Summary
Offences Act 1988 committed against, with or in the
presence of a child, or
[28] Section 33 (2)
Omit the subsection.
[29] Section 33 (6)-(8)
Insert after section 33 (5):
(6) The following are not relevant apprehended violence orders:
(a) an apprehended violence order made by a court before 3
July 1995 under Part 15A of the Crimes Act 1900,
(b) an external protection order (within the meaning of section
562RA of the Crimes Act 1900) made before 3 July 1995,
(c) an external protection order (within the meaning of section
562RA of the Crimes Act 1900) that is not registered under
Division 3 of Part 15A of that Act.
(7) The following offences are not part of the relevant criminal
record of a person:
(a) an offence that was a serious sex offence at the time of its
commission if the conduct constituting the offence has
ceased to be an offence in New South Wales,
(b) an offence involving sexual activity or an act of indecency
if the conduct constituting the offence occurred in a public
place and would not have constituted an offence in New
South Wales if the place were not a public place.
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Commission for Children and Young People Amendment Bill 2005
Schedule 1 Amendment of Commission for Children and Young People Act 1998
(8) A criminal record is not a relevant criminal record if:
(a) the record relates to a registrable offence within the
meaning of the Child Protection (Offenders Registration)
Act 2000 that was committed elsewhere than in New South
Wales, and
(b) the Commission, or an employer or employer-related
body, is unable to obtain access to the record (whether
because the record cannot be released under the law of the
jurisdiction in which the offence concerned was
committed or for any other reason).
[30] Section 33A
Insert after section 33:
33A Child-related employment to which Part does not apply
(1) This Part does not apply to the employment of a person in
child-related employment if:
(a) all the children with whom the person is required to have
contact in that employment are related to the person, or
(b) all the children with whom the person is required to have
contact in that employment are related to the employer and
the person is related to the employer.
(2) For the purposes of this section, a person is related to another
person if:
(a) the person is a relative of the other person, or
(b) the person is the guardian of the other person or a person
having the custody of or parental responsibility for the
other person (otherwise than as the holder of a public
office), or
(c) the spouse of the person is related to the other person (as
referred to in paragraph (a) or (b)).
(3) In this section:
relative of a person means the spouse, parent, child, grandparent,
grandchild, uncle, aunt, brother, sister, niece or nephew of the
person, whether the relationship is of the whole or the half-blood
and whether the relationship is natural or depends on the adoption
of a person.
spouse of a person includes any person who is living with that
other person as that other person's partner on a bona fide
domestic basis.
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
[31] Part 7, Division 2, Division 3 heading
Insert before section 34:
Division 2 Prohibitions on child-related employment
Subdivision 1 Persons prohibited from being employed
in child-related employment
33B Prohibited persons
(1) For the purposes of this Division, a prohibited person means:
(a) a person convicted of a serious sex offence, the murder of
a child or a child-related personal violence offence,
whether before or after the commencement of this
subsection, or
(b) a person who is a registrable person within the meaning of
the Child Protection (Offenders Registration) Act 2000.
(2) For the purposes of this Division, a person is not a prohibited
person in respect of an offence if an order in force under
Subdivision 2 declares that this Division is not to apply to the
person in respect of the offence.
(3) In this Division:
child-related personal violence offence means:
(a) an offence committed by an adult involving intentionally
wounding or causing grievous bodily harm to a child, or
(b) an offence committed by an adult of attempting, or of
conspiracy or incitement, to commit an offence referred to
in paragraph (a),
but does not include an offence committed by an adult who is not
more than 3 years older than the child concerned.
serious sex offence means (subject to subsections (4) and (5)):
(a) an offence involving sexual activity or acts of indecency
that was committed in New South Wales and that was
punishable by penal servitude or imprisonment for 12
months or more, or
(b) an offence, involving sexual activity or acts of indecency,
that was committed elsewhere and that would have been an
offence punishable by penal servitude or imprisonment for
12 months or more if it had been committed in New South
Wales, or
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Commission for Children and Young People Amendment Bill 2005
Schedule 1 Amendment of Commission for Children and Young People Act 1998
(c) an offence under section 80D or 80E of the Crimes Act
1900, where the person against whom the offence is
committed is a child, or
(d) an offence under sections 91D-91G of the Crimes Act
1900 (other than if committed by a child prostitute) or a
similar offence under a law other than a law of New South
Wales, or
(e) an offence under section 91H, 578B or 578C (2A) of the
Crimes Act 1900 or a similar offence under a law other
than a law of New South Wales, or
(f) an offence an element of which is an intention to commit
an offence referred to in paragraph (a) or (b), or
(g) an offence of attempting, or of conspiracy or incitement, to
commit an offence referred to in the preceding paragraphs,
or
(h) any other offence, whether under the law of New South
Wales or elsewhere, prescribed by the regulations.
Note. A conviction for an offence includes a finding that an offence is
proven, or that a person is guilty of an offence, even though the court
does not proceed to a conviction.
(4) An offence that was a serious sex offence at the time of its
commission is not a serious sex offence for the purposes of this
Division if the conduct constituting the offence has ceased to be
an offence in New South Wales.
(5) An offence involving sexual activity or an act of indecency is not
a serious sex offence for the purposes of this Division if the
conduct constituting the offence:
(a) occurred in a public place, and
(b) would not have constituted an offence in New South Wales
if the place were not a public place.
(6) For the purposes of this Division, section 579 of the Crimes Act
1900 does not apply to or in respect of a serious sex offence or a
child-related personal violence offence.
33C Offences relating to prohibited persons
(1) A prohibited person must not:
(a) apply for child-related employment, or
(b) undertake child-related employment, or
(c) remain in child-related employment.
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Maximum penalty: 100 penalty units, or imprisonment for 2
years, or both.
(2) A person is not criminally responsible for an offence against this
section if the person did not know, at the time of the commission
of the offence, that the employment concerned was child-related
employment.
33D Employer to ascertain whether employee is prohibited person
(1) An employer must not commence employing any other person in
child-related employment without first requiring that other
person to disclose whether or not that other person is a prohibited
person.
Maximum penalty: 20 penalty units, in the case of a corporation,
and 10 penalty units in any other case.
(2) A person must not, in purported compliance with a requirement
under this section, make any statement that the person knows is
false.
Maximum penalty: 100 penalty units, or imprisonment for
12 months, or both.
(3) This section does not apply to the employment of a person in
child-related employment if all the children with whom the
person is required to have contact in that employment are related
to the employer (whether or not the person is related to the
employer).
Note. Under section 37, an employer also has a duty to carry out
background checking procedures in relation to a preferred applicant for
primary child-related employment before employing the applicant. An
employer who fails to do so may be required, by notice, to comply with
his or her duty.
33E Employer not to employ prohibited person in child-related
employment
An employer must not commence employing, or continue to
employ, in child-related employment a person that the employer
knows is a prohibited person.
Maximum penalty: 100 penalty units, in the case of a corporation,
and 50 penalty units in any other case.
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Schedule 1 Amendment of Commission for Children and Young People Act 1998
Subdivision 2 Review of prohibition of employment of
prohibited persons
33F Definitions
In this Subdivision:
relevant tribunal--see section 33I.
review application means an application under section 33H or
33I.
33G Persons not entitled to make review applications
(1) A prohibited person who has been convicted of any of the
following offences, committed by the person as an adult, is not
entitled to make an application under section 33H or 33I:
(a) murder of a child,
(b) an offence under section 66A, 66B, 66C, 66D or 73 of the
Crimes Act 1900 or a similar offence under that Act or any
other law involving sexual intercourse with a child
(including a law other than a law of New South Wales),
(c) an offence under section 91H (2) of the Crimes Act 1900,
involving the production of child pornography, or a similar
offence under a law other than a law of New South Wales,
(d) an offence of attempting, or of conspiracy or incitement, to
commit an offence referred to in the preceding paragraphs.
(2) The Commission or a relevant tribunal may grant leave to a
prohibited person to make a review application, despite a
conviction for an offence referred to in subsection (1), if the
Commission or tribunal is satisfied that:
(a) the offence is an offence referred to in subsection (1) (b),
or an offence of attempting, or of conspiracy or incitement
to commit such an offence, and
(b) the prohibited person was not more than 3 years older than
the child against whom the offence was committed, and
(c) the offence did not involve circumstances of aggravation
within the meaning of section 66C of the Crimes Act 1900.
33H Commission may make declarations concerning prohibited
persons
(1) On the application of a prohibited person, the Commission may
make an order declaring that this Division is not to apply to the
person in respect of a specified offence.
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(2) An application must be made in a form approved by the
Commission. An applicant must fully disclose to the
Commission any matters relevant to the application.
(3) Orders under this section may be made subject to conditions.
(4) The Commission is not to make an order that is subject to
conditions without the consent in writing of the applicant to the
conditions.
(5) If the Commission proposes to make an order that is subject to
conditions, it is to notify the applicant in writing that:
(a) it proposes to make the order subject to the conditions
specified in the notification, and
(b) the applicant may consent in writing to the making of the
order subject to those specified conditions or request the
Commission to take no further action, and
(c) the Commission will take no further action in relation to
the application unless the applicant has consented in
writing to the making of the proposed order subject to the
specified conditions, and
(d) if the applicant does not consent to the making of the order
subject to the specified conditions, the applicant may apply
under section 33I to the Industrial Relations Commission
or the Administrative Decisions Tribunal for an order
declaring that this Division is not to apply to the person in
respect of a specified offence.
(6) If the Commission makes an order, it is to notify the applicant in
writing that the Commission has made the order and (if
applicable) that the order is subject to the conditions specified in
the notification.
(7) If the Commission considers that an applicant under this section
poses a risk to the safety of children or, for whatever reason,
cannot make a decision as to whether the applicant poses such a
risk, the Commission is to notify the applicant in writing that:
(a) the Commission cannot make an order under this section,
and
(b) the Commission will take no further action in relation to
the application, and
(c) the applicant may apply under section 33I to the Industrial
Relations Commission or the Administrative Decisions
Tribunal for an order declaring that this Division is not to
apply to the person in respect of a specified offence.
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33I IRC and ADT may make declarations concerning prohibited
persons
(1) On the application of a prohibited person, a relevant tribunal may
make an order declaring that this Division is not to apply to the
person in respect of a specified offence.
(2) A relevant tribunal is:
(a) the Industrial Relations Commission, or
(b) the Administrative Decisions Tribunal.
(3) The Commission for Children and Young People is to be a party
to any proceedings for an order under this section. The
Commission may make submissions in opposition to or support
of the making of the order.
(4) An applicant must fully disclose to the relevant tribunal any
matters relevant to the application.
(5) If a relevant tribunal refuses to make an order under this section,
the prohibited person is not entitled to make an application for an
order under this section or section 33H in respect of that offence
until after the period of 5 years from the date of the tribunal's
refusal, unless the tribunal otherwise orders at the time of refusal.
(6) Orders under this section may be made subject to conditions.
(7) The following applies to proceedings before the Administrative
Decisions Tribunal under this section:
(a) the Tribunal may not award costs,
(b) an appeal lies on a question of law to the Supreme Court
by any party to the proceedings.
33J Matters to be considered in determining review applications
(1) The Commission or a relevant tribunal is not to make an order on
a review application unless it is satisfied that the person the
subject of the application does not pose a risk to the safety of
children.
(2) In any proceedings for a review application, it is to be presumed,
unless the applicant proves to the contrary, that the applicant
poses a risk to the safety of children.
(3) In deciding whether or not to make an order in relation to a
person, the Commission or a relevant tribunal is to take into
account the following:
(a) the seriousness of the offences with respect to which the
person is a prohibited person,
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(b) the period of time since those offences were committed,
(c) the age of the person at the time those offences were
committed,
(d) the age of each victim of the offences at the time they were
committed,
(e) the difference in age between the prohibited person and
each such victim,
(f) whether the person knew, or could reasonably have
known, that the victim was a child,
(g) the prohibited person's present age,
(h) the seriousness of the prohibited person's total criminal
record,
(i) such other matters as the Commission or tribunal considers
relevant.
33K Stay pending determination of review application
On a review application, the Commission or a relevant tribunal
may, by order, stay the operation of a prohibition under this
Division pending the determination of the matter.
33L Multiple applications not permitted
A person may not make a review application under section 33H
or 33I if the person has another application pending under either
of those sections.
33M Further review of persons who obtain orders
(1) The Commission may apply to a relevant tribunal to revoke or
vary an order made under this Subdivision by the Commission or
the tribunal.
(2) The relevant tribunal may:
(a) revoke an order, if it is satisfied, on the basis of fresh
evidence provided by the Commission, that the person the
subject of the proposed order poses a risk to the safety of
children, or
(b) vary an order, if it is satisfied, on the basis of fresh
evidence provided by the Commission, that the person is
likely to pose such a risk if the order is not varied.
(3) A relevant tribunal may consider fresh evidence provided by the
Commission.
(4) Orders under this section may be made subject to conditions.
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Schedule 1 Amendment of Commission for Children and Young People Act 1998
(5) The following applies to proceedings before the Administrative
Decisions Tribunal under this section:
(a) the Tribunal may not award costs,
(b) an appeal lies on a question of law to the Supreme Court
by any party to the proceedings.
33N Commissioner of Police to be notified
The Commission or a relevant tribunal must notify the
Commissioner of Police of the terms of any order made under this
Subdivision by the Commission or tribunal.
33O Jurisdiction of Industrial Relations Commission
The Industrial Relations Commission may not make an order
under this Subdivision unless:
(a) the person is an employee within the meaning of the
Industrial Relations Act 1996 who is liable to be dismissed
from that employment under this Act, or
(b) the person was such an employee who was dismissed from
that employment under this Act.
Subdivision 3 Miscellaneous
33P Self-employed persons
(1) This section applies to self-employed persons engaged in
child-related employment.
(2) The regulations may make provision for or with respect to the
following matters:
(a) additional persons who are not self-employed who may be
treated as self-employed persons for the purposes of this
section and any regulations made under this section,
(b) requirements for obtaining, displaying and producing
certificates that a person is not a prohibited person,
(c) the issue of such certificates,
(d) regulating or prohibiting the engagement of self-employed
persons in child-related employment if certificate
requirements are not complied with,
(e) prohibiting the use of certificates by persons other than
self-employed persons,
(f) matters ancillary to matters referred to in paragraphs
(a)-(e).
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33Q Prohibited person may be transferred to other employment
This Division does not prevent an employer who removes a
prohibited person from child-related employment in accordance
with this Division from transferring the person to employment of
a different kind.
33R Commission may advise on status
The Commission may, on the application of a person, advise the
person as to whether the person is a prohibited person or is
eligible to make a review application.
33S Monitoring and auditing functions
(1) The Commission may monitor and audit compliance with
requirements and procedures relating to prohibited persons.
(2) The Minister may give the Commission a written direction on the
exercise of its functions under this section, and the Commission
is to comply with any such direction. The Commission is to
include any such direction in the Commission's annual report.
Division 3 Background checking
[32] Section 34 Nature of background checking
Omit "Part, employment screening".
Insert instead "Division, background checking".
[33] Section 34 (c)
Omit the paragraph. Insert instead:
(c) an estimate of the risk to children involved in that
child-related employment arising from anything disclosed
by such a check, having regard to all the circumstances of
the case, including any risk arising from the particular
workplace,
[34] Section 34 (d)
Omit "risk assessment". Insert instead "estimate of risk".
[35] Section 35 Guidelines relating to procedures and standards for
background checking
Omit section 35 (4).
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[36] Sections 35 (5), 37 (4B), 38 (1) and (2), 39 (4), 40 (3) and 44 (1)-(3) and (4)
(where firstly occurring)
Omit "Part" wherever occurring. Insert instead "Division".
[37] Section 35 (6) and (7)
Insert after section 35 (5):
(6) The Minister may, from time to time, amend or revoke guidelines
published under this section.
(7) Guidelines made under this section, or amendments to
guidelines, are to be published in the Gazette and take effect from
the date of publication or such later date as is specified in the
guidelines or amendments.
[38] Section 36 Functions of Commission in respect of background checking
Insert "(including updating and correcting)" after "maintaining" in section 36
(1) (a).
[39] Section 36 (1) (c)
Omit "such screening". Insert instead "such checking".
[40] Section 37 Background checking mandatory for preferred applicants for
certain child-related employment
Insert "and section 37A" after "this section" in section 37 (6).
[41] Section 37 (6)
Omit paragraphs (a) and (b) of the definition of primary child-related
employment.
Insert instead:
(a) paid child-related employment, or
(b) child-related employment of a minister, priest, rabbi, mufti
or other like religious leader or spiritual official of a
religion, or
[42] Section 37A
Insert after section 37:
37A Background checking for certain short-term employees
(1) This section applies to any decision by an employer to employ a
person in primary child-related employment for a period of less
than 6 months or such other period as may be prescribed by the
regulations.
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
(2) The employer is taken to have complied with section 37 if:
(a) background checking procedures have been carried out in
accordance with that section in relation to the person
within the period of 12 months immediately preceding the
employment of the person by the employer, and
(b) the background checking procedures were carried out in
respect of a decision by the same employer to employ the
person in the same kind of primary child-related
employment.
(3) The employer is taken to have complied with section 37 if:
(a) background checking procedures have been carried out in
accordance with that section in relation to the person by an
employer-related body approved by the Minister within
the period of 12 months immediately preceding the
employment of the person by the employer, and
(b) the background checking procedures were carried out in
respect of a decision by the same or another employer to
employ the person in the same kind of primary
child-related employment.
[43] Section 38 Notification of information relating to relevant criminal
records or other orders
Omit "on their behalf" from section 38 (2).
[44] Section 38 (5)
Insert after section 38 (4):
(5) Information may be disclosed under subsections (1) and (2) to
and by an employer (or employer-related body) situated outside
New South Wales and approved by the Minister.
[45] Section 39 Duties of employers with respect to relevant employment
proceedings
Omit section 39 (1). Insert instead:
(1) It is the duty of an employer to notify the Commission of the
name and other identifying particulars of any employee against
whom relevant employment proceedings have been completed
by the employer, other than proceedings:
(a) in which a finding is made that the alleged reportable
conduct, or the alleged commission of an act of violence,
did not occur, or
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Commission for Children and Young People Amendment Bill 2005
Schedule 1 Amendment of Commission for Children and Young People Act 1998
(b) in which a finding is made that the allegations in respect of
which the proceedings were brought were vexatious or
misconceived.
(1A) For the purposes of subsection (1), employment proceedings are
taken to be completed by an employer if the employer has
determined the proceedings, whether or not any right of appeal or
review has been exercised or exhausted.
[46] Section 40 Duties of employers to notify Commission of rejected
applicant in connection with background checking
Omit "a risk assessment" from section 40 (1).
Insert instead "an estimate of risk".
[47] Section 41
Omit sections 41 and 42. Insert instead:
41 Enforcement notices
(1) The Commission may, by notice in writing served on an
employer, require the employer to comply with obligations of the
employer under section 37, 39 or 40 within the period specified
in the notice.
(2) The Commission may serve a notice on an employer under this
section if it is of the opinion that the employer has failed to
comply with any provision of section 37, 39 or 40.
(3) The notice must set out the reasons for the notice being given.
(4) The period specified in a notice is to be not less than 28 days.
(5) The Commission may revoke a notice at any time.
(6) A person who fails, without reasonable excuse, to comply with a
notice in force under this section is guilty of an offence.
Maximum penalty: 50 penalty units, or imprisonment for 6
months, or both.
(7) In any proceedings for an offence against this section, the onus of
proving that a person had a reasonable excuse lies with the
defendant.
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Commission for Children and Young People Amendment Bill 2005
Amendment of Commission for Children and Young People Act 1998 Schedule 1
[48] Section 43A
Insert after section 43:
43A Rectification or withdrawals of notifications
(1) An employer may amend or withdraw a notification to the
Commission under section 39 or 40 if the employer determines
that the notification was incorrect or wrongly made.
(2) An amendment or withdrawal of a notification is to be in the form
directed by the Commission.
[49] Section 44 Effect of Division on other rights and procedures
Omit "Employment screening" from section 44 (1).
Insert instead "Background checking".
[50] Section 45 Staged implementation of duties under Part
Omit the section.
[51] Sections 48A and 48B
Insert after section 48:
48A Protection of persons relating to child-related employment
(1) Anything done by a person in good faith and with reasonable
care:
(a) for the purpose of background checking, or
(b) for the purpose of exercising a function under Part 7,
does not subject the person to any action, liability, claim or
demand.
(2) Without limiting subsection (1):
(a) a person has qualified privilege in proceedings for
defamation in respect of anything done by the person for
the purposes of background checking or exercising a
function under Part 7, and
(b) damages or compensation (whether for breach of contract
or otherwise) are not payable in respect of a decision not to
employ a person as a result of an estimate of risk carried
out in good faith and with reasonable care for the purposes
of background checking or an application for an order
under Subdivision 2 of Division 2 of Part 7.
(3) This section does not limit or affect any other right, privilege or
immunity that a person has as a defendant in any proceedings.
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Commission for Children and Young People Amendment Bill 2005
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48B Unauthorised disclosure or dishonest collection of information
(1) A person who discloses any information obtained by the person
in connection with background checking or the exercise of
functions under Part 7 is guilty of an offence unless the
disclosure:
(a) is made in good faith for the purposes of background
checking or the exercise of a function under Part 7, or
(b) is made with the consent of the person to whom the
information relates, or
(c) is ordered by a court, or any other body or person
exercising judicial functions, for the purposes of the
hearing or determination by the court, body or person of
any matter, or
(d) is made with other lawful excuse.
(2) A person who dishonestly obtains confidential information
relating to background checking or the exercise of functions
under Part 7 is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment for 6
months, or both.
[52] Section 49 Proceedings for offences
Insert at the end of section 49:
(2) Despite any other law, proceedings for an offence under this Act
must be commenced not later than 2 years from when the offence
was alleged to have been committed.
[53] Section 52
Insert after section 51:
52 Relationship with other Acts and laws
(1) A prohibition on employment under this Act prevails to the
extent of any inconsistency between it and any other Act or law.
(2) The Industrial Relations Commission or any other court or
tribunal does not have jurisdiction under any Act or law to order
the re-instatement or re-employment of a person or employee
contrary to a prohibition on employment imposed by this Act, or
to order the payment of damages or compensation for any
removal from employment in accordance with this Act.
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[54] Section 53 Review of Act
Omit section 53 (2). Insert instead:
(2) The review is to be undertaken as soon as possible after the period
of 5 years from the date of assent to the Commission for Children
and Young People Amendment Act 2005.
[55] Schedule 3 Savings, transitional and other provisions
Insert at the end of clause 1 (1):
Commission for Children and Young People Amendment Act
2005
[56] Schedule 3, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of
Commission for Children and Young
People Amendment Act 2005
7 Definitions
(1) In this Part:
amending Act means the Commission for Children and Young
People Amendment Act 2005.
repealed Act means the Child Protection (Prohibited
Employment) Act 1998.
(2) Words and expressions used in this Part have the same meanings
as they have in Part 7 of this Act, as amended by the amending
Act.
8 Persons convicted of child-related personal violence offences
(1) A person who was, immediately before the commencement of
this clause, employed in child-related employment and who had
previously been convicted of a child-related personal violence
offence does not commit an offence under Part 7 of this Act by
remaining in that employment.
(2) An employer who continues to employ a person referred to in
subclause (1) is not guilty of an offence under Part 7 of this Act.
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Schedule 1 Amendment of Commission for Children and Young People Act 1998
(3) However, a person referred to in subclause (1) is a prohibited
person in relation to the conviction for the child-related personal
violence offence for the purposes of any child-related
employment (subject to Subdivision 2 of Division 2 of Part 7)
commencing after the commencement of this clause.
9 Existing declarations
(1) An order made under the repealed Act, and in force immediately
before the repeal of that Act, continues in force and is taken to
have been made under Division 2 of Part 7.
(2) Subclause (1) has effect whether or not the prohibited person the
subject of the order is a person in respect of whom an order may
be made under that Division.
10 Review of existing orders
Section 33M, as inserted by the amending Act, applies in respect
of orders made under the repealed Act and in force immediately
before the commencement of that section.
11 General savings
(1) Anything of a kind required or permitted to be done by or under
a provision of Division 2 of Part 7 of this Act, as inserted by the
amending Act, that was required or permitted to be done under a
corresponding provision of the repealed Act and that still had
effect immediately before its repeal continues in effect on or after
that repeal as if:
(a) Division 2 of Part 7 of this Act had been in force when it
was done, and
(b) it had been done by or under the corresponding provision
of Division 2 of Part 7 of this Act.
(2) The repeal of the repealed Act does not affect the operation of the
repealed Act to the extent that it provided that a person was not
liable for an offence under that Act.
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Commission for Children and Young People Amendment Bill 2005
Amendment of other Acts Schedule 2
Schedule 2 Amendment of other Acts
(Section 4)
2.1 Administrative Decisions Tribunal Act 1997 No 76
Schedule 2 Composition and functions of Divisions
Omit "Child Protection (Prohibited Employment) Act 1998" from clause 2 of
Division 2 of Part 1.
Insert instead "Commission for Children and Young People Act 1998".
2.2 Child Protection (Offenders Registration) Act 2000 No 42
Section 9 Relevant personal information to be reported
Omit "Child Protection (Prohibited Employment) Act 1998" from section
9 (3).
Insert instead "Commission for Children and Young People Act 1998".
2.3 Education Act 1990 No 8
Section 47 Registration requirements for non-government schools
Omit "the Child Protection (Prohibited Employment) Act 1998" from section
47 (g) (ii).
Insert instead "Division 2 of Part 7 of the Commission for Children and Young
People Act 1998".
2.4 Industrial Relations Act 1996 No 17
Section 164A Powers of Commission as to disclosure of matters before
the Commission
Omit "the Child Protection (Prohibited Employment) Act 1998" from section
164A (3) (a).
Insert instead "Subdivision 2 of Division 2 of Part 7 of the Commission for
Children and Young People Act 1998".
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Commission for Children and Young People Amendment Bill 2005
Schedule 2 Amendment of other Acts
2.5 Institute of Teachers Act 2004 No 65
Section 24 General grounds for revocation of accreditation
Omit "the Child Protection (Prohibited Employment) Act 1998" from section
24 (b) (ii).
Insert instead "Division 2 of Part 7 of the Commission for Children and Young
People Act 1998".
Page 30
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