New South Wales Bills New South Wales Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
New South Wales
Child Protection (Working with Children) and
Other Child Protection Legislation
Amendment Bill 2016
Contents
Page
1 Name of Act 2
2 Commencement 2
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012
No 51 3
Schedule 2 Amendment of Children and Young Persons (Care and Protection)
Act 1998 No 157 7
Schedule 3 Amendment of Teaching Service Act 1980 No 23 9
Schedule 4 Amendment of Education (School Administrative and Support
Staff) Act 1987 No 240 11
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, , 2016
New South Wales
Child Protection (Working with Children) and
Other Child Protection Legislation
Amendment Bill 2016
Act No , 2016
An Act to amend the Child Protection (Working with Children) Act 2012 and the Children and
Young Persons (Care and Protection) Act 1998 and other Acts with respect to working with
children clearance checks and the employment of children; 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.
Assistant Speaker of the Legislative Assembly.
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
The Legislature of New South Wales enacts:
1 Name of Act
This Act is the Child Protection (Working with Children) and Other Child Protection
Legislation Amendment Act 2016.
2 Commencement
This Act commences on the date of assent to this Act.
Page 2
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012 No 51
Schedule 1 Amendment of Child Protection (Working with
Children) Act 2012 No 51
[1] Section 5 Definitions
Insert in alphabetical order in section 5 (1):
key position, in an organisation, means each of the following:
(a) the chief executive of the organisation,
(b) the principal officer--if the organisation is a designated agency, a
registered agency or an accredited adoption service provider,
(c) any other position in the organisation that is of a kind prescribed by the
regulations.
[2] Section 9B Governing body to ensure persons appointed to key positions hold
clearance
Omit section 9B (1).
[3] Section 15 Assessment of applicants and holders
Insert after section 15 (4) (j):
(j1) any relevant information in relation to the person that was obtained in
accordance with section 36A,
[4] Section 16 Request for further information
Omit section 16 (2) and (3). Insert instead:
(2) The Children's Guardian may terminate an application for a clearance or
cancel a clearance if the applicant or holder fails, without reasonable excuse,
to provide further information within 3 months of the request being made and
the Children's Guardian has not withdrawn the request.
(3) The Children's Guardian must:
(a) as soon as practicable after terminating an application, give written
notice of that termination to the applicant and to each person that the
Children's Guardian reasonably believes to be a notifiable person in
relation to the applicant, or
(b) as soon as practicable after cancelling a clearance, give written notice
of that cancellation to the holder of the clearance and to each person that
the Children's Guardian reasonably believes to be a notifiable person in
relation to the holder of the clearance.
[5] Section 24
Omit the section. Insert instead:
24 Surrender of clearances
(1) The holder of a working with children check clearance may, with the consent
of the Children's Guardian, surrender the clearance at any time.
(2) The Children's Guardian must not consent to the surrender of a clearance if the
Children's Guardian is of the opinion that it is likely that there is a risk to the
safety of children if the holder were to engage in child-related work.
(3) The Children's Guardian must, as soon as practicable after consenting to the
surrender of a clearance, cancel the clearance and give written notice of that
Page 3
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012 No 51
cancellation to each person that the Children's Guardian reasonably believes
to be a notifiable person in relation to the holder of the clearance.
[6] Section 26 Persons not entitled to apply for review or enabling order
Insert ", or whose working with children check clearance has been cancelled," after
"refused" in section 26 (1) (c).
[7] Section 26 (2) (b)
Insert "(including any equivalent orders made by a court of a jurisdiction other than this
State (including jurisdictions outside Australia))" after "the following orders".
[8] Section 26 (2) (c)
Insert "(or a corresponding prohibition order under section 19 of that Act)" after "2004".
[9] Section 27 Applications to Civil and Administrative Tribunal for administrative
reviews of clearance decisions
Insert "under section 23" after "Children's Guardian" in section 27 (2).
[10] Section 28 Orders relating to disqualified and ineligible persons
Insert "under section 23" after "cancelled" in section 28 (3) (b).
[11] Section 30 Determination of applications and other matters
Insert after section 30 (1) (j):
(j1) any relevant information in relation to the person that was obtained in
accordance with section 36A,
[12] Section 35 Notification by reporting bodies of conduct constituting assessment
requirement trigger
Omit section 35 (2). Insert instead:
(2) Notification under this section does not extend to findings made by the
reporting body before 3 July 1995 unless:
(a) the reporting body is otherwise directed in writing by the Children's
Guardian in respect of a finding made by the reporting body, or
(b) a person holding a key position in the organisation has knowledge of a
finding made by the reporting body.
(2A) A direction of the Children's Guardian may specify a particular finding or may
specify findings of a particular class (such as findings against a specified
person or findings during a specified period).
(2B) Nothing in this section:
(a) prevents a reporting body from notifying the Children's Guardian about
a finding made before 3 July 1995, or
(b) requires a reporting body or a person holding a key position to review
or to seek out records created before 3 July 1995, otherwise than in
accordance with a direction given under this section.
Page 4
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012 No 51
[13] Section 36A
Insert after section 36:
36A Exchange of information to bodies in other jurisdictions
(1) In this section:
working with children check information means information relevant to
determining whether to grant or cancel a working with children check
clearance (or its equivalent in another jurisdiction) to a person and may
include any information about the person.
(2) The object of this section is to provide for the exchange of working with
children check information between the Children's Guardian and bodies that
administer working with children check clearances in other jurisdictions.
(3) The Minister may, by order published in the Gazette, make protocols setting
out the circumstances under which working with children check information
may be exchanged under this section.
(4) The protocols may contain recommended privacy standards for bodies in other
jurisdictions and may prohibit the disclosure of information under this section
that do not adopt those standards.
(5) The Minister is to consult with the Privacy Commissioner in the preparation
of the protocols.
(6) The Children's Guardian may exchange working with children check
information with bodies that administer working with children check
clearances in other jurisdictions, but only if the exchange is in accordance with
the protocols.
(7) If a person, acting in good faith, exchanges working with children check
information in accordance with this section, that person is not liable to any
civil or criminal action, or any disciplinary action, for exchanging the
information.
(8) Nothing in this section limits an exchange of working with children check
information that is otherwise permitted under any Act or law.
[14] Section 45 Unauthorised disclosure or dishonest collection of information
Insert after section 45 (2):
(3) For the avoidance of doubt, if a worker has consented to the disclosure to an
agency prescribed by the regulations of information indicating that a criminal
record check did not disclose any criminal record in relation to the worker, the
Children's Guardian may, at the time of the verification of the worker under
section 9A, disclose that information to the Secretary of the agency.
[15] Section 45A
Insert after section 45:
45A False or misleading statements
A person must not, in any application under this Act or the regulations, or in
connection with an inquiry made by the Children's Guardian in relation to any
such application, make a statement or furnish information that the person
knows to be false or misleading in a material particular.
Maximum penalty: 5 penalty units.
Page 5
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 1 Amendment of Child Protection (Working with Children) Act 2012 No 51
[16] Schedule 3 Savings, transitional and other provisions
Omit clause 16. Insert instead:
16 Matters for consideration
(1) Sections 15 and 30, as amended by the amending Act, do not apply to an
application for a clearance or an application for an administrative review of a
decision to refuse an application for a clearance.
(2) In this clause:
application for a clearance means an application for a working with children
check clearance made by a person before 2 November 2015.
[17] Schedule 3, Part 5
Insert after Part 4:
Part 5 Provisions consequent on enactment of Child
Protection (Working with Children) and Other Child
Protection Legislation Amendment Act 2016
23 Definition
In this Part:
amending Act means the Child Protection (Working with Children) and Other
Child Protection Legislation Amendment Act 2016.
24 Cancellation of clearance where information has not been provided
Section 16, as amended by the amending Act, extends to a request for further
information made before that amendment. However, in such a case the
Children's Guardian must not cancel a clearance until at least 3 months after
that amendment.
25 Reviews and appeals
An amendment made to a provision of Part 4 of this Act by the amending Act
does not apply to or in respect of a review (or an appeal arising from a review)
if the review commenced before that amendment and that provision, as in
force immediately before that amendment, continues to apply to and in respect
of any such review or appeal.
26 False and misleading information and statements
Section 45A, as inserted by the amending Act, does not extend to a statement
made or information furnished before the commencement of that section.
Page 6
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
Schedule 2 Amendment of Children and Young Persons
(Care and Protection) Act 1998 No 157
[1] Sections 226A and 226B
Insert after section 226:
226A Enforcement of undertakings
(1) The Children's Guardian may accept a written undertaking given by a person
for the purposes of this section in connection with a matter in relation to which
the Children's Guardian has a function under this Act.
(2) Without limiting subsection (1), an undertaking that the Children's Guardian
may accept includes an undertaking to carry out a restorative justice activity.
(3) The person may withdraw or vary the undertaking at any time, but only with
the consent in writing of the Children's Guardian. The consent of the
Children's Guardian is required even if the undertaking purports to authorise
withdrawal or variation of the undertaking without that consent.
(4) The Children's Guardian may apply to the Supreme Court for an order under
subsection (5) if the Children's Guardian considers that the person who gave
the undertaking has breached any of its terms.
(5) The Court may make all or any of the following orders if it is satisfied that the
person has breached a term of the undertaking:
(a) an order directing the person to comply with that term of the
undertaking,
(b) an order directing the person to pay to the State an amount not
exceeding the amount of any financial benefit that the person has
obtained directly or indirectly and that is reasonably attributable to the
breach,
(c) any order that the Court thinks appropriate directing the person to
compensate any other person who has suffered loss or damage as a
result of the breach,
(d) an order suspending or revoking any employer's authority,
(e) any other order the Court considers appropriate.
226B Power to compel production of information
(1) The Children's Guardian may, by notice in writing, request that a person
provide the Children's Guardian with information (including documents)
relevant to the exercise of its functions relating to the employment of children.
(2) A notice under subsection (1) may be given for the purposes of:
(a) preparing submissions to the Supreme Court under this Act, or
(b) investigating a complaint relating to the employment of children.
(3) A person to whom any such request is given is by this section authorised to
provide the Children's Guardian with the information requested.
(4) A notice under this section may specify a day on or before which the notice is
to be complied with.
Page 7
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 2 Amendment of Children and Young Persons (Care and Protection) Act 1998 No 157
(5) If documents are given to the Children's Guardian under this section, the
Children's Guardian:
(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 investigating the
complaint, 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 Children's Guardian.
[2] Section 236A
Insert after section 236:
236A Entry without warrant into premises--suspected employment of children
(1) This section applies to any premises that the Children's Guardian reasonably
suspects is a place at which a person is employing a child in contravention of
Chapter 13.
(2) The Children's Guardian may, at any time, enter and inspect any premises to
which this section applies without the need for any authority other than that
conferred by this section for the purpose of ensuring that the provisions of
Chapter 13 with respect to the premises are being complied with.
(3) Nothing in this section authorises the entry of a dwelling.
[3] Section 259A Penalty notices
Insert at the end of section 259A (10) (b):
, or
(c) an employee of the Office of the Children's Guardian authorised in
writing by the Children's Guardian as an authorised officer for the
purposes of this section.
Page 8
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 3 Amendment of Teaching Service Act 1980 No 23
Schedule 3 Amendment of Teaching Service Act 1980 No 23
[1] Section 93L Suspension of officers from duty pending certain decisions or on
lapsing of working with children check clearance
Insert after section 93L (2) (a):
(a1) is a charged person within the meaning of Part 4B, or
[2] Section 93R Definitions
Insert in alphabetical order in section 93R (1):
charged person means a person whose working with children check clearance
is cancelled pending determination of proceedings against the person for an
offence specified in Schedule 2 to the Child Protection (Working with
Children) Act 2012.
[3] Section 93R (1), definition of "unauthorised person"
Omit paragraph (a). Insert instead:
(a) a person whose working with children check clearance is cancelled
under section 23 of the Child Protection (Working with Children) Act
2012, other than a charged person, or
(a1) a charged person on the person being convicted (within the meaning of
the Child Protection (Working with Children) Act 2012) of an offence
specified in Schedule 2 to that Act, or
Note. A 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 conviction (see the definition of conviction in the Child
Protection (Working with Children) Act 2012).
[4] Section 93W Effect of person obtaining working with children check clearance
Omit section 93W (2) and (3). Insert instead:
(2) If the person is granted a clearance and a period of not more than 12 months
has elapsed since the date on which the person's employment was terminated
under section 93T, the person is entitled to be reinstated to, or re-employed in,
a position in the Teaching Service that is similar to the position that the person
held when his or her employment was terminated.
[5] Schedule 3 Savings and transitional provisions
Insert after Part 5:
Part 6 Provisions consequent on enactment of Child
Protection (Working with Children) and Other Child
Protection Legislation Amendment Act 2016
22 Secretary may reinstate or re-employ certain persons dismissed under
section 93T
(1) In this clause:
amending Act means the Child Protection (Working with Children) and Other
Child Protection Legislation Amendment Act 2016.
dismissed person means an officer or temporary employee who, before the
commencement of the amending Act, was dismissed under section 93T
because the person's working with children check clearance was cancelled as
Page 9
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 3 Amendment of Teaching Service Act 1980 No 23
a consequence of the commencement of proceedings against the person in
relation to an offence.
(2) The Secretary may reinstate a dismissed person to, or re-employ a dismissed
person in, a position in the Teaching Service that is similar to the position that
the person held when his or her employment was terminated.
(3) The Secretary must not reinstate or re-employ a dismissed person under
subclause (2) if the person is or becomes an unauthorised person (within the
meaning of Part 4B, as amended by the amending Act).
(4) A dismissed person, on being reinstated or re-employed under this clause, is
taken for the purposes of this Act or any other Act or law:
(a) to have never been dismissed from the Teaching Service, and
(b) to have been on leave without pay during the period between dismissal
and reinstatement or re-employment.
(5) However, the Secretary may, after reinstating or re-employing a dismissed
person under this clause, suspend the dismissed person under
section 93L (2) (a1), pending the outcome of the relevant proceedings.
(6) Nothing in this clause entitles the dismissed person to the payment of damages
or compensation (on any ground) for any termination of employment or other
related matter done or omitted in accordance with Part 4B.
Page 10
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 4 Amendment of Education (School Administrative and Support Staff) Act 1987 No 240
Schedule 4 Amendment of Education (School Administrative
and Support Staff) Act 1987 No 240
[1] Section 32D Suspension of employees from duty pending certain decisions or on
lapsing of working with children check clearance
Insert after section 32D (2) (a):
(a1) is a charged person within the meaning of Part 6A, or
[2] Section 32I Definitions
Insert in alphabetical order in section 32I (1):
charged person means a person whose working with children check clearance
is cancelled pending determination of proceedings against the person for an
offence specified in Schedule 2 to the Child Protection (Working with
Children) Act 2012.
[3] Section 32I (1), definition of "unauthorised person"
Omit paragraph (a). Insert instead:
(a) a person whose working with children check clearance is cancelled
under section 23 of the Child Protection (Working with Children) Act
2012, other than a charged person, or
(a1) a charged person on the person being convicted (within the meaning of
the Child Protection (Working with Children) Act 2012) of an offence
specified in Schedule 2 to that Act, or
Note. A 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 conviction (see the definition of conviction in the Child
Protection (Working with Children) Act 2012).
[4] Section 32N Effect of person obtaining working with children check clearance
Omit section 32N (2) and (3). Insert instead:
(2) If the person is granted a clearance and a period of not more than 12 months
has elapsed since the date on which the person's employment was terminated
under section 32K, the person is entitled to be reinstated to, or re-employed in,
a position that is similar to the position that the person held when his or her
employment was terminated.
[5] Schedule 1 Savings, transitional and other provisions
Insert after Part 2:
Part 3 Provisions consequent on enactment of Child
Protection (Working with Children) and Other Child
Protection Legislation Amendment Act 2016
6 Secretary may reinstate or re-employ certain persons dismissed under
section 32K
(1) In this clause:
amending Act means the Child Protection (Working with Children) and Other
Child Protection Legislation Amendment Act 2016.
dismissed person means a permanent employee who, before the
commencement of the amending Act, was dismissed under section 32K
Page 11
Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 [NSW]
Schedule 4 Amendment of Education (School Administrative and Support Staff) Act 1987 No 240
because the person's working with children check clearance was cancelled as
a consequence of the commencement of proceedings against the person in
relation to an offence.
(2) The Secretary may reinstate a dismissed person to, or re-employ a dismissed
person in, a position that is similar to the position that the person held when
his or her employment was terminated.
(3) The Secretary must not reinstate or re-employ a dismissed person under
subclause (2) if the person is or becomes an unauthorised person (within the
meaning of Part 6A, as amended by the amending Act).
(4) A dismissed person, on being reinstated or re-employed under this clause, is
taken for the purposes of this Act or any other Act or law:
(a) to have never been dismissed, and
(b) to have been on leave without pay during the period between dismissal
and reinstatement or re-employment.
(5) However, the Secretary may, after reinstating or re-employing a dismissed
person under this clause, suspend the dismissed person under
section 32D (2) (a1), pending the outcome of the relevant proceedings.
(6) Nothing in this clause entitles the dismissed person to the payment of damages
or compensation (on any ground) for any termination of employment or other
related matter done or omitted in accordance with Part 6A.
Page 12
[Index] [Search] [Download] [Related Items] [Help]