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Commissioner for Children and Young People and Child Guardian and Another Act
Amendment Bill 2008
Commissioner for Children and Young
People and Child Guardian and Another
Act Amendment Bill 2008
Explanatory Notes
General Outline
Policy Objectives
The main objective of the Bill is to effectively complement the Child
Protection (Offender Prohibition Order) Bill 2007 (CPOPO Bill) by
strengthening and expanding the existing exclusionary framework within
the blue card system. Under the provisions of the Bill, all `disqualified
persons' will be prohibited from making application for a blue card.
Disqualified persons are persons who:
· have a conviction for a child related sex offence; or
· are subject to a Child Protection Offender Prohibition Order or
disqualification order made by a Court; or
· have reporting obligations under the Child Protection (Offender
Reporting) Act 2004.
Reasons for the Bill
The Bill is required to complement the CPOPO Bill and ensure its effective
operation with Part 6 of the Commission for Children and Young People
and Child Guardian Act 2000 (CCYPCG Act).
Part 6 of the CCYPCG Act outlines the risk management and criminal
history screening requirements for organisations and persons involved in
the provision of specified services to children - the blue card system.
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Commissioner for Children and Young People and Child Guardian and Another Act
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Achievement of the Objectives
The Bill expands the exclusionary framework of the blue card system by
way of amendments to Part 6 of the CCYPCG Act which introduce the
concept of a "disqualified person".
It will now be an offence, punishable by five years imprisonment, for a
"disqualified person" to sign an application for a blue card.
This means such persons will be prohibited upfront from applying to work
or volunteer in or run an organisation that provides regulated services to
children.
In very limited and defined circumstances a disqualified person will be able
to seek an eligibility declaration from the Commissioner for Children and
Young People and Child Guardian (Commissioner) which will enable them
to make application for a blue card. This will only be permitted where
they:
· have not been sentenced to imprisonment in relation to a disqualifying
offence;
· do not have reporting obligations under the Child Protection
(Offender Reporting) Act 2004;
· are not subject to a Child Protection Offender Prohibition Order or a
disqualification order made by a Court.
This allows the Commissioner to exercise discretion in truly exceptional
circumstances where it would not harm the best interests of children for a
blue card to be issued. The only right of review in relation to a decision
about an eligibility declaration will be judicial review.
The provisions of the Bill also provide powers for the Commissioner to
take appropriate action to cancel or suspend a blue card where a holder
becomes a disqualified person.
The Bill further strengthens the blue card system by:
· introducing additional powers for Courts to issue disqualification
orders in circumstances where a person is convicted of a serious
offence, other than a disqualifying offence, committed against or in
relation to a child where the nature of the offending behaviour clearly
indicates that it would not be in the best interests of children for a blue
card to be issued;
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Commissioner for Children and Young People and Child Guardian and Another Act
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· providing powers for the Commissioner and the Police Service to
share information where necessary and appropriate to enable the
effective administration of the blue card system as well as the Child
Protection (Offender Reporting) Act 2004 and the prohibition order
system proposed by the CPOPO Bill;
· providing police officers with the power to seize a blue card where an
individual is no longer entitled to hold it;
· providing for effective and efficient transitional arrangements.
Alternatives to the Bill
There are no other ways by which the policy objectives of the Bill can be
achieved.
Estimated Cost for Government Implementation
It is estimated that the passage of the amendments to the CCYPCG Act,
under the Bill, will result in implementation costs related to:
· modifications to existing information and data systems;
· communication of changes to stakeholders; and
· the revision of forms.
Consistency with Fundamental Legislative Principles
There are a number of provisions in the Bill which may be regarded as
infringing Fundamental Legislative Principles.
Power sufficiently defined and subject to appropriate review, and
consistency with the principles of natural justice
Under the Bill, there is no provision for merits review of a decision by the
Commissioner to refuse to issue an eligibility declaration or to refuse to
cancel a negative notice in relation to a disqualified person. This gives rise
to the question as to whether this amounts to a breach of the fundamental
legislative principle that administrative power should be sufficiently
defined and subject to appropriate review.
Under the proposed provisions, the exercise of the administrative power by
the Commissioner to consider an application for an eligibility declaration
or cancellation of a negative notice in relation to a disqualified person is
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sufficiently defined and subject to appropriate review through the judicial
review process. Additionally, the Commissioner will be obliged to provide
the individual with an opportunity to provide submissions in relation to
their application before making a decision.
Further, the legislative framework specifically outlines the obligation of the
Commissioner to observe natural justice requirements as part of the
application process, and includes provisions under which the
Commissioner may revoke a decision to refuse to issue an eligibility
declaration if the Commissioner is satisfied that the decision was based on
wrong or incomplete information.
To the extent that there is a breach of fundamental legislative principles in
this area, it is considered justified to achieve the overarching policy intent
of the Bill, which is to protect children from harm.
Retrospectivity
There is potentially an infringement of the fundamental legislative
principle that rights and liberties should not be adversely affected or
obligations imposed retrospectively, to the extent that the Bill seeks to
withdraw current appeals in specified circumstances. Again, this
infringement is considered necessary to achieve consistency with the
overarching policy intent of the Bill, which is to protect children from
harm.
Adverse affect on the rights and liberties of individuals
Arguably, disqualifying individuals with past convictions from engaging in
regulated child-related employment unless and until their blue card
application has been approved is a breach of the fundamental legislative
principle that legislation should not adversely affect rights and liberties, or
impose obligations, retrospectively. This breach is considered justified for
the protection of children from harm, as it prevents individuals with
convictions for specified child-related sex offences from entering or
continuing in regulated child-related service environments.
Consultation
There has been no community consultation on the Bill. Consultation with
relevant government stakeholders has occurred.
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Commissioner for Children and Young People and Child Guardian and Another Act
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Notes on Provisions
Part 1 Preliminary
Clause 1 states the short title as the Commission for Children and Young
People and Child Guardian and Another Act Amendment Act 2008.
Clause 2 provides that the Act commences on 2 June 2008 immediately
after commencement of the Child Protection (Offender Reporting) Act
2008.
Part 2Amendment of Commission for Children and Young People and
Child Guardian Act 2000
Clause 3 provides that the part amends the Commission for Children and
Young People and Child Guardian Act 2000.
Clause 4 amends section 99C(1) to provide an revised definition of the
term "serious offence".
Clause 5 omits sections 99D (What is a serious child-related sexual
offence) and 99E (What is an excluding offence). These terms have been
replaced by the concept of a "disqualifying offence".
Clause 6 amends section 100 in several respects.
Clause 6(1) inserts new section 100(1C) to make it an offence for an
employer, to ask an employee to sign an application under section 100(1)
consenting to employment screening without warning the employee that it
is an offence for a disqualified person to sign the application as a relevant
person.
Clause 6(2) renumbers section 100(3)(d) as section 100(3)(f).
Clause 6(3) inserts new sections 100(3)(d) and 100(3)(e) which provide,
respectively, that the approved form for section 100(1) must include
provision for a declaration by the employer that the employer has given the
employee a warning as required under section 100(1C), and a declaration
by the relevant person that he or she is not a disqualified person.
Clause 6(4) inserts new section 100(3A) which provides that the approved
form of an application under section 100(1) must include a warning that it
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is an offence for a disqualified person to sign the application as a relevant
person, and a statement about applying for an eligibility declaration.
Clause 6(5) omits the definition of "prescribed person" for section 100.
This definition is now part of the dictionary in Schedule 4.
Clause 7 amends section 101 in several respects.
Clause 7(1) inserts new section 101(3)(c) to provide that the approved form
for an application by an individual for a prescribed notice to carry on a
regulated business, must include provision for a declaration by the person
that the person is not a disqualified person.
Clause 7(2) inserts new section 101(3A) to provide that the approved form
for an application by an individual for a prescribed notice to carry on a
regulated business must include a warning that it is an offence for a
disqualified person to make the application, and a statement about applying
for an eligibility declaration.
Clause 7(3) replaces section 101(6) to clarify when an application under
section 101(1) is taken to have with been withdrawn by the person who
made it.
Clause 7(4) replaces section 101(7)(a) to provide that an application under
section 101(1) is taken to have been withdrawn by the person who made the
application if the person:
· is charged with a disqualifying offence;
· becomes the respondent in an application for an offender prohibition
order;
· becomes subject to a temporary offender prohibition order.
Clause 7(5) omits the definition of "prescribed person" for section 101.
This definition is now part of the dictionary in Schedule 4.
Clause 8 amends section 102 in several respects.
Clause 8(1) amends section 102(3) to provide that section 102(3) is subject
to sections 102(4), and 102(6A).
Clauses 8(2) and (3) amend section 102 to replace the terms "an excluding"
and "excluding" with the terms "a disqualifying" and "disqualifying",
respectively, due to the introduction of the expanded exclusionary
framework for the blue card system based on the concept of a "disqualified
person".
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Clause 8(4) inserts new paragraphs 102(3)(d) and 102(3)(e) to provide that
the Commissioner must issue a positive notice to a person about whom an
application is made under sections 100 or 101 where a eligibility
declaration has been issued or a decision to cancel a negative notice made.
The insertion of new section (6A) by Clause 8(5) means these provisions
will cease to have effect where an individual's eligibility declaration
expires or the Commissioner receives further police or disciplinarily
information about the person. The Commissioner will then be required to
issue a negative notice unless satisfied that it is an exceptional case in
which it would not harm the best interests of children.
Clause 8(5) replaces section 102(6) to provide that, subject to section
102(3) and (7), the Commissioner must issue a negative notice to a person
about whom an application is made under sections 100 or 101 if the
Commissioner is aware that the person is a relevant disqualified person,
other than only because the person is subject to a temporary offender
prohibition order. Additionally the provision will require the
Commissioner to issue a negative notice to a person unless satisfied under
subsection (7) that it is an exceptional case in which it would not harm the
best interests of children for the Commissioner to issue a positive notice in
relation to an application made by an individual who:
· is not currently a relevant disqualified person but who has been a
relevant disqualified person;
· has been convicted of a serious offence.
Clause 8(6) inserts "subsection (6)(c) or (6A)" in place of "subsection
6(b)" in section 102(7).
Clause 9 inserts "a disqualifying" in place of "an excluding" in section
102A(2)(a)(ii). This is necessary due to the introduction of the expanded
exclusionary framework for the blue card system based on the concept of a
"disqualified person".
Clause 10 inserts "102(6)(a) or (b)" in place of "102(6)(a)" in sections
102B(3A) and 102B(5).
Clause 11 omits "under division 4" in section 104(2).
Clause 12 amends section 107(2) in two respects.
Clause 12(1) inserts new section 107(2)(d) to provide that is an offence for
an employer to continue to employ a person in regulated employment
where they have been provided with a notice under section 119E(4) or
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section 120E(3)(a), or under section 122B(3) because of a change in police
information mentioned in section 122B(3)(f).
Clause 12(2) amends paragraph (b) of the penalty provision for section
107(2) to provide that the penalty of 200 penalty units or two years
imprisonment applies with respect to the circumstances prescribed under
section 107(2) other than those prescribed under section 107(2)(a).
Clause 13 replaces section 108(2) to provide that it is an offence in
specified circumstances for a person to start or continue in regulated
employment unless a positive notice is issued to a person. The specified
circumstances are if:
· an application about the person was made under section 100; and
· before a prescribed notice was issued, the application was withdrawn
under section 123(2) or (3B) because the person's consent to
employment screening under Part 6 of the Commission for Children
and Young People and Child Guardian Act 2000 was withdrawn.
The replacement provision also provides that the maximum penalty for the
offence is 100 penalty units or one year imprisonment if an application is
withdrawn under section 123(2), or 500 penalty units or five years
imprisonment otherwise.
Clauses 14 amends the heading of section for subdivision 3.
Clause 15 replaces section 110 to state that a person is taken to have a
change in police information if they acquire police information.
Clause 16 amends section 111 to limit the application of the section to
persons with a current positive notice immediately on the person's
conviction for a serious offence.
Clause 17 amends section 112 to require an employee to advise their
employer where they are aware of a change in their police information and
to require an employer on receiving that information to notify the
Commissioner of the change in the approved form.
Clause 18 amends section 113(3) to require an individual carrying on a
regulated business to notify the Commissioner in the approved form where
they are aware of a change in their police information.
Clause 19 amends section 114 to require a person who is not in regulated
employment and who becomes aware of a change in their police
information to, before starting regulated employment, advise their
employer of the change. Further, an employer, on receiving such a
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notification from an employee must notify the Commissioner of the change
in the approved form.
Clause 20 inserts "the notice" in place of "the notice and issues a negative
notice to the person" in section 117(1)(b).
Clause 21 amends section 118 in several respects.
Clause 21(1) amends the heading of section 118. The amended heading is
"Cancellation of negative notice".
Clause 21(2) inserts new section 118(1A) to provide that section 118,
which would otherwise apply where the Commissioner has issued a
negative notice to a person and the notice is current, does not apply to the
person if the person is a relevant disqualified person.
Clause 21(3) replaces section 118(3) to provide that a person cannot make
application for cancellation of a negative notice less than two years after
the issue of the negative notice, or any previous application by the person
under section 118 unless:
· the decision to issue the negative notice was based on wrong or
incomplete information; or
· the negative notice was issued because the person was a relevant
disqualified person and the person is no longer a relevant disqualified
person.
Clause 21(4) amends section 118(7) to remove the automatic requirement
that the Commissioner must issue a positive notice to a person upon
granting the person's application to cancel a negative notice. Under s 102
(3)(d) the Commissioner is directed to issue a positive notice to a person on
receiving an application for a prescribed notice, after making a decision to
cancel a negative notice, unless section 102 (6A) applies.
Clause 22 amends section 119 in several respects.
Clause 22(1) replaces section 119(1)(b) to the effect that the Commissioner
may cancel a positive notice about a person and substitute a negative notice
if the Commissioner is satisfied of the matters referred to in existing
section 119(1)(a) or that, subject to section 119C, it is appropriate to cancel
the positive notice having regard to:
· disciplinary information, or information received under section 122 or
section 122A, about the person, other than information known to the
Commissioner at the time the positive notice was issued; or
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· a decision of a court made after the positive notice was issued,
including the reasons for the decision, relating to an offence
committed by the person.
Clause 22(2) replaces section 119(2) to the effect that the Commissioner
may cancel a negative notice (the cancelled notice) about a person and
substitute a positive notice if:
· the Commissioner is satisfied that the decision on the application for
the cancelled notice was based on wrong or incomplete information
and, based on the correct or complete information, the Commissioner
should issue the positive notice; or
· the negative notice was issued because the person was a relevant
disqualified person and the person is no longer a relevant disqualified
person; or
· the Commissioner is satisfied that it is appropriate to cancel the
negative notice having regard to information not known to the
Commissioner at the time the negative notice was issued.
Clause 22(3) inserts "section 126B" in place of "section 126B(2)".
Clause 22(4) replaces section 119(6) to provide that the Commissioner may
exercise a power under sections 119(1) or 119(2) on the Commissioner's
own initiative; or under sections 119(2)(a) or 119(2)(b) on application
under section 118 by the person to whom the cancelled notice was issued.
Clause 23 amends section 119A in several respects.
Clause 23(1) replaces the heading of section 119A. The amended heading
is "Cancellation if relevant disqualified person".
Clause 23(2) replaces section 119A(1) for consistency with the expanded
exclusionary framework for the blue card system based on the concept of a
"disqualified person". The replacement provision provides that section
119A applies if a person who is the holder of a positive notice, including a
positive notice that is suspended under section 119C, becomes a relevant
disqualified person other than only because the person is subject to a
temporary offender prohibition order.
Clause 23(3) replaces sections 119A(3)(b) and 119A(3)(c). The effect of
the amendment is that, at the time the Commissioner gives a person a
negative notice under section 119A(2), the Commissioner must give the
person a further written notice stating the matters prescribed under section
119A(3) including that the person can not apply under section 118 for the
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cancellation of the negative notice, even after two years, except as provided
for in s 118(3).
Clause 23(4) inserts "section 126B" in place of "section 126B(2)".
Clause 24 omits section 119B (Cancellation if conviction for excluding
offence but no imprisonment or disqualification order).
Clause 25 amends section 119C in several respects.
Clause 25(1) replaces the heading of section 119C with the heading
"Suspension of a positive notice".
Clause 25(2) replaces section 119C(1) to provide that section 119C applies
if a person who is the holder of a positive notice is charged with a
disqualifying offence or becomes a relevant disqualified person because the
person is subject to a temporary offender prohibition order.
Clause 25(2) also inserts new section 119C(1A) to provide that, in the
circumstances prescribed in section 119C(1), the Commissioner must, by
written notice given to a person, suspend the person's positive notice.
Clause 25(3) inserts "notice about the suspension is" in place of "notice is"
in section 119C(2)(e).
Clause 25(4) inserts "subsection (1A)" in place of "subsection (1)" in
sections 119C(3) and 119C(4).
Clause 25(5) inserts a replacement penalty provision in section 119C(3) to
increase the maximum penalty to 500 penalty units or five years
imprisonment, for consistency with other similar provisions.
Clause 25(6) inserts "section 126B" in place of "section 126B(2)" to
correct the reference.
Clause 26 amends section 119D in several respects.
Clause 26(1) omits "or 119B(2)" in section 119D(2)(a).
Clause 26(2) replaces section 119D(2)(b). The replacement provision
provides that a suspension of a positive notice under section 119C is
cancelled if the Commissioner cancels the suspended notice and issues a
further positive notice or a negative notice for the person on the
Commissioner's own initiative or on application by the person for
cancellation of the suspension.
Clause 26(3) omits sections 119D(3) and 119D(3A).
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Clause 26(4) inserts "to cancel the suspended notice and issue a further
positive notice or a negative notice" in place of "under subsection (3)" in
section 119D(4), as required due to the omission of section 119D(3).
Clause 26(5) inserts "section 126B" in place of "section 126B(2) in section
119D(5)to correct the reference.
Clause 26(6) inserts new section 119D(7) to prescribe the circumstances in
which the Commissioner is not required to decide an application made
under section 119D(2)(b)(ii).
Clause 27 inserts new section 119E to make provision for a person who is
given a notice under section 119C(1A) to ask the Commissioner, by written
notice given to the Commissioner, to cancel the person's positive notice.
New section 119E also prescribes the actions that the Commissioner must
take after receiving the written notice. New section 119E also provides that
it is an offence for a person who is given a notice under section 119C(1A)
to perform work that is regulated employment unless the Commissioner
issues a further positive notice to the person.
Clause 28 amends section 120A in two respects.
Clause 28(1) inserts ", or the holder of a negative notice who has applied
for its cancellation" in place of "or negative notice" in section 120A(1).
Clause 28(2) inserts new section 120A(1A) to require individuals to
provide written notice to the Commissioner if a person ends or changes the
person's regulated employment or stops carry on a regulated business or
starts another regulated business.
Clause 29 inserts new Division 4A (Disqualified persons) to introduce the
expanded exclusionary framework for the blue card system based on the
concept of a "disqualified person".
New section 120B defines the term "disqualifying offence".
New section 120C defines the term "disqualified person" and provides that
a person is not a disqualified person once issued with a eligibility
declaration unless the eligibility declaration expires.
New section 120D defines the term "relevant disqualified person".
New section 120E provides that it is an offence, punishable by 5 years
imprisonment or 500 penalty units for a "disqualified person" to:
· sign an application consenting to employment screening under s 100;
or
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· make an application under s 101; or
· apply for, or start or continue in, regulated employment.
Additionally section 120E provides for the actions of the Commissioner if
a person breaches subsection (1).
New section 120F makes provision for "disqualified persons", in
prescribed circumstances, to apply to the Commissioner for an eligibility
declaration that the person is not a disqualified person and is, therefore,
eligible to sign an application as a relevant person under section 100 or
make an application under section 101.
New section 120G creates an offence for a person who makes an eligibility
application to fail to give notice to the Commissioner in the approved form
of changes to the person's name or contact details.
New section 120H prescribes that the Commissioner may only issue an
eligibility declaration for a person who has been convicted of a
disqualifying offence and outlines the matters that the Commissioner must
consider, and the actions the Commissioner must take, in relation to an
application by a person for an eligibility declaration.
New section 120I provides that the Commissioner is taken to have issued
an eligibility declaration to a disqualified person if the Commissioner
issues a positive notice to the person or cancels a negative notice issued to
the person.
New section 120J makes provision for a person to withdraw an eligibility
application in prescribed circumstances, and prescribes the circumstances
in which a person is taken to have withdrawn an eligibility application.
New section 120K prescribes the circumstances in which an eligibility
declaration expires.
New section 120L prescribes the circumstances in which the
Commissioner may revoke a decision to refuse an eligibility application,
and issue an eligibility declaration.
Clause 30 amends section 121 in several respects.
Clauses 30(1), (2), (3), (4) and (5) amend references to various provisions
and terms in section 121. Subsection (1) specifies that section 121,
allowing a review of the Commissioner's decision in specified
circumstances, does not apply to a disqualified person.
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Clause 30(6) replaces section 121(3) to clarify that there is no appeal, or
review, under the Commission for Children and Young People and Child
Guardian Act 2000 against a decision of the Commissioner to issue, or
refuse to cancel, a negative notice about a person other than a decision
mentioned in section 121(1) or to refuse an application for an eligibility
declaration.
Clause 31 inserts new section 121AA (Effect of applicant under s 121
becoming a disqualified person). New section 121AA applies if a
disqualified person made an application under section 121 before the
person became a disqualified person. The application and any proceeding
in relation to the application must be dismissed by:
· if a proceeding in relation to the application is before a court - by the
court; or
· otherwise - by the Children Services Tribunal, even if the dismissal
would be contrary to a direction of the District Court.
Clause 32 inserts "an offence that is a disqualifying" in place of "serious
child-related sexual" in section 121A(1)(a) as the term "serious
child-related sexual offence" is no longer referred to within Part 6.
Clause 33 amends section 121B to provide that the Police Commissioner
may not delegate the Police Commissioner's powers under section 121A
other than to a police officer of at least the rank of superintendent.
Clause 34 inserts new sections 122(1)(d), 122(1)(e) and 122(1)(f) to
expand the circumstances in which the Commissioner may seek
information from the Police Commissioner. Clause 34 also provides for an
expansion of the range and nature of information that the Police
Commissioner is obliged to provide to the Commissioner in prescribed
circumstances. These amendments are necessary due to the introduction of
the expanded exclusionary framework for the blue card system based on
the concept of a "disqualified person".
Clause 35 amends section 122A to expand the provisions relating to
notifications from the Police Commissioner to the Commissioner about
changes in police information about certain persons. This is necessary due
to the introduction of the expanded exclusionary framework for the blue
card system based on the concept of a "disqualified person".
Clause 36 replaces section 122B to outline the requirement for the
Commissioner, in prescribed circumstances, to notify a relevant entity that
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the Commissioner is aware that police information about a person has
changed.
Clause 37 amends section 123 in two respects.
Clause 37(1) replaces section 123(3)(a)(i) to the effect that an employee
will be taken to have withdrawn his or her consent to employment
screening if, following a written request from the Commissioner, the
employee fails within a reasonable stated time to provide,:
· stated information that the Commissioner reasonably needs to
establish the employee's identity; or
· stated information, including by way of a submission, about a stated
matter that the Commissioner reasonably believes is relevant to the
application for a prescribed notice in respect of the employee.
In order for consent to be taken to have been withdrawn the Commissioner
must:
· warn the person that that if the employee does not comply with the
request the Commissioner may give the employee a notice of deemed
withdrawal; and
· give the employer and the employee a notice of deemed withdrawal
relating to the employee.
Clause 37(2) replaces section 123(3B)(a) to state that an employee is taken
to have withdrawn his or her consent to employment screening if the
Commissioner gives the employee written notice that the employee:
· is charged with a disqualifying offence;
· is named as a respondent for an offender prohibition order; or
· has become subject to a temporary offender prohibition order after the
date of the application.
Clause 38 inserts "(b)-the provision" in place of "119A-the section" in
section 123A(3)(b).
Clause 39 inserts "regulated employment" in place of "regulated
employment until the charge for the excluding offence is dealt with and the
commissioner cancels the suspension and issues a further prescribed
notice" in section 124(4).
Clause 40 replaces sections 126A(1)(b) and 126A(2) to expand the
circumstances in which the Commissioner must, on written application of
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the Police Commissioner, give the Police Commissioner information about
an address for a person, and limits the purposes for which such information
can be used, disclosed or accessed, to the purposes mentioned in section
126A(1)(b).
Clause 41 inserts new section 126AA to prescribe the circumstances under
which the Commissioner may give the Police Commissioner confidential
information about a person and limits the access, disclosure and use of such
information by the Police Commissioner as prescribed by section 122 (9)
and (10).
Clause 42 inserts new section 126B(2A) to expand the matters about which
the Commissioner must notify the accreditation board to include a
notification that a person is a disqualified person where an application is
made in contravention of section 120E.
Clause 43 omits sections 126C and 126D. The notifications required
under s 126D are now dealt with by s 122B. Section 126C is replaced with
a new section 126C to expand the circumstances in which a court may
make a disqualification order.
Clause 44 replaces section 146(1) to provide that an offence against
section 108 or 109 or 111 or 119C(3) or 119E or 120E is an indictable
offence.
Clause 45 inserts new Part 9, Division 11 (Transitional provisions for
Commission for Children and Young People and Child Guardian and
Another Act Amendment Act 2008) to provide for transitional provisions
in relation to amendments.
New section 217 provides a definition of "commencement" for the
purposes of the Division.
New section 218 provides transitional arrangements in relation to a person
who is a disqualified person but who is not a relevant disqualified person.
New section 219 provides transitional arrangements in relation to a person
who is a relevant disqualified person.
New section 220 provides transitional arrangements in relation to a person
who is not a disqualified person and for whom an application for a
prescribed notice, for cancellation of a negative notice or for cancellation
of a suspension of a positive notice was made before the commencement.
New section 221 provides transitional arrangements in relation to an
application, made before commencement, for review under section 121 or
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an appeal to a court, started before commencement, from a decision on an
application for review under section 121. If the application or appeal has
been made by a disqualified person it must be dismissed by the court or
tribunal. Otherwise, the application or appeal is to be decided in
accordance with the Act as amended.
New section 222 provides transitional arrangements in relation to a person
who holds a positive notice and at commencement is a disqualified person
but not:
· a relevant disqualified person; or
· a person in relation to whom the Commissioner started, before the
commencement, to exercise a power under section 119; or
· a person who is taken to have been issued with an eligibility
declaration under section 218(3).
New section 223 provides transitional arrangements for a person who holds
a positive notice at commencement and who is a relevant disqualified
person. The section provides that the positive notice is cancelled.
New section 224 provides that if, before the commencement, the
Commissioner had started on the Commissioner's own initiative to exercise
a power in relation to a person or a prescribed notice and the Commissioner
may, on the commencement, exercise the power under the Commission for
Children and Young People and Child Guardian Act 2000, the
Commissioner may continue to exercise the power in relation to the person
or prescribed notice.
New section 225 prescribes the notice requirements if an application for a
prescribed notice about a person, for cancellation of a person's negative
notice or for cancellation of a suspension of a person's positive notice is
taken to have been withdrawn under sections 218 or 219.
New section 226 prescribes the notice requirements if a person's positive
notice is taken to have been cancelled under sections 219 or 223.
New section 227 provides that, for specified sections, it is immaterial as to
when the offence mentioned in the provision was committed or when the
person to whom the provision applies was convicted.
New section 228 provides clarification in respect of the application of
section 120E(1)(c) in relation to a person who is a disqualified person and,
at the commencement, is employed in regulated employment. New section
228 declares that, on the commencement, section 120E(1)(c) applies to the
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person even if it is not an offence for a person to employ the disqualified
person in regulated employment.
New section 229 provides that nothing in the Commission for Children and
Young People and Child Guardian Act 2000 as amended by this amending
Bill is effective to impose criminal liability on a person retrospectively.
New section 230 provides for a transitional regulation-making power. It
provides that a regulation may make provision about a matter for which it
is necessary to make provision to allow or facilitate the doing of anything
to achieve the transition from the operation of the Commission for Children
and Young People and Child Guardian Act 2000 as in force immediately
before the commencement, to the operation of the Act after the
commencement where the Act does not make provision or sufficient
provision. New section 230 also provides that:
· a transitional regulation may have retrospective operation to a day not
earlier than the day section 230 commences;
· a transitional regulation must declare it is a transitional regulation; and
· section 230 and any transitional regulation expires 12 months after the
day section 230 commences.
Clause 46 amends schedule 2 (Current serious offences) to inserts "section
419(3)(b)(i) or (ii)" in place of "section 419(3)(b)(i) and (ii)" in Schedule
2, item 4, entry for Criminal Code, section 419, column 3.
Clause 47 inserts replacement schedules 2B (Current disqualifying
offences) and 2C (Repealed or expired disqualifying offences). This is
necessary due to the introduction of the expanded exclusionary framework
for the blue card system.
Clause 48 amends schedule 4 (Dictionary). This is necessary due to the
new terminology required under the expanded exclusionary framework for
the blue card system. In particular, the definition of imprisonment order
has been amended. As has been the case, detention of juveniles is not
included. Hence, a juvenile sentenced to detention for a disqualifying
offence is not barred for life from holding or applying for a positive notice,
but must still satisfy the Commissioner that it is in the best interests of
children that they be granted a positive notice before they can engage in
regulated employment.
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Commissioner for Children and Young People and Child Guardian and Another Act
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Part 3 Amendment of Police Powers
and Responsibilities Act 2000
Clause 49 provides that the part amends the Police Powers and
Responsibilities Act 2000.
Clause 50 inserts new Chapter 23, Part 1A.
New section 789A provides police officers with a power, in prescribed
circumstances, to demand production of a person's positive notice and
positive notice blue card, and makes it an offence for person not to comply
with such a demand, unless the person has a reasonable excuse. The
section also prescribes actions that must be taken by a police officer who is
given a person's positive notice and positive notice blue card under this
provision.
Part 4 Consequential amendments of
other Acts
Clause 51 provides that the part amends other Acts in accordance with the
schedule. The amendments to the other Acts are consequential
amendments necessitated by the amendments to the Commission for
Children and Young People and Child Guardian Act 2000.
© State of Queensland 2008
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