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Working with Children Amendment
Bill 2012
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 sets out the main purposes of the Bill, which include the
amendment of the Working with Children Act 2005 to
strengthen the tests that must be satisfied before an assessment
notice is given, making murder a category 1 offence, preventing a
person working with children while his or her application is
being determined if the application is a category 1 or 2
application, amending the Victorian Civil and Administrative
Tribunal Act 1998 to strengthen the tests that must be satisfied
before an assessment notice is given and making consequential
amendments to the Transport (Compliance and Miscellaneous)
Act 1983.
Clause 2 provides that the Bill comes into operation on a day or days to be
proclaimed and that any provision that does not come into
operation before 31 December 2012 commences operation on
that day.
PART 2--WORKING WITH CHILDREN ACT 2005
Clause 3 makes murder a category 1 offence. Clause 3 amends section 12
of the Working with Children Act 2005 to specify that an
application is a category 1 application for the purposes of the
Working with Children Act 2005 if it is in respect of a person
who at any time has been convicted or found guilty of an offence
specified in clause 2(a) of Schedule 1 to the Sentencing Act
1991 (murder).
571051 1 BILL LA INTRODUCTION 23/5/2012
Clause 4 at subclause (1), amends section 13 of the Working with
Children Act 2005 so that murder is no longer a category 2
offence.
Clause 4(2) makes an application in respect of a person subject to
a pending charge for murder a category 2 application.
Clause 4(3) strengthens the test that the Secretary to the
Department of Justice must apply in respect of a category 2
application by stating that in satisfying himself or herself that
giving an assessment notice would not pose an unjustifiable risk
to the safety of children, in addition to considering the existing
criteria under section 13(2), the Secretary must also now be
satisfied that a reasonable person would allow his or her child to
have direct contact with the applicant that was not directly
supervised by another person while the applicant was engaged in
any type of child-related work and must be satisfied that the
applicant's engagement in any type of child-related work would
not pose an unjustifiable risk to the safety of children.
This test as to an applicant's suitability to engage in any type of
child-related work, which also appears in clauses 5(3), 6(1),
11(1), 12(2), 17(2) and 18(2), is not an assessment of whether the
applicant is technically qualified to perform any type of child-
related work but rather a test as to the potential risk to the safety
of children posed by the applicant, assuming the applicant is
qualified to perform the various hypothetical forms of child-
related work in which the applicant would be entitled to engage
if given an assessment notice.
Clause 5 includes additional circumstances in which an application for an
assessment notice will be a category 3 application.
Clause 5(1) provides that if the person making an application for
an assessment notice has been convicted or found guilty of
certain repealed Victorian offences, that application will be a
category 3 application for the purposes of the Working with
Children Act 2005. These offences are repealed versions of
offences analogous to current section 18 of the Crimes Act
1958--that is, causing injury intentionally or recklessly.
Prior to the commencement of the Crimes (Amendment) Act
1985, section 19 of the Crimes Act 1985 was the offence of
inflicting bodily injury, while section 37 was the offence of
assault occasioning actual bodily harm. Clause 5(1) provides that
if the person making an application for a working with children
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check has at any time been convicted or found guilty of these
repealed offences, that person's application is to be treated as a
category 3 application for the purposes of the Working with
Children Act 2005 as conduct in relation to these offences may
be relevant in assessing a person's suitability to undertake
child-related work.
Clause 5(1) also provides that if the applicant has been convicted
or found guilty of an offence committed in a jurisdiction other
than Victoria that, if committed in Victoria, would have
constituted an offence against previous section 19 or 37 of the
Crimes Act 1958, that application is a category 3 application.
Prior to the commencement of the Vagrancy (Repeal) and
Summary Offences (Amendment) Act 2005, section 17(1) of
the Summary Offences Act 1966 provided for the offence of
behaving in a riotous, indecent, offensive or insulting manner and
section 7(1) of the Vagrancy Act 1966 provided for the offence
of wilful and obscene exposure in a public place. These offences
have been repealed in Victoria. Clause 5(2) provides that if the
person making an application for a working with children check
has at any time been convicted or found guilty of these repealed
offences, then that person's application is to be treated as a
category 3 application for the purposes of the Working with
Children Act 2005 as conduct in relation to these offences may
be relevant in assessing a person's suitability to undertake
child-related work.
Clause 5(2) also provides that if the applicant for an assessment
notice has been convicted or found guilty of an offence
committed in a jurisdiction other than Victoria that, if committed
in Victoria, would have constituted an offence against
section 17(1) of the Summary Offences Act 1966 or section 7(1)
of the Vagrancy Act 1966, that application is a category 3
application.
Clause 5(3) strengthens the test that the Secretary to the
Department of Justice must apply in respect of a category 3
application, under which the Secretary must have regard to the
criteria set out in section 14(3) of the Working with Children
Act 2005. Clause 5(3) makes this assessment subject to the
Secretary being satisfied that a reasonable person would allow his
or her child to have direct contact with the applicant that was not
directly supervised by another person while the applicant was
engaged in any type of child-related work and being satisfied that
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the applicant's engagement in any type of child-related work
would not pose an unjustifiable risk to the safety of children.
The Secretary must determine that it is appropriate to refuse to
give an assessment notice unless he or she is satisfied of these
two matters.
Clause 6 strengthens the test that the Secretary to the Department of
Justice must apply in considering whether it is appropriate to
refuse to give an assessment notice where the applicant has at any
time been charged with, convicted or found guilty of an offence
other than a relevant offence (exceptional circumstance
applications). In considering whether it is appropriate to refuse
to give an assessment notice, the Secretary must have regard to
whether because of that charge, conviction or finding of guilt, the
giving of the notice would pose an unjustifiable risk to the safety
of children. In considering whether the giving of the notice
would pose an unjustifiable risk to the safety of children, the
Secretary must have regard to the criteria set out in section
13(2)(a) to (i) of the Working with Children Act 2005.
This assessment is now subject to the Secretary being satisfied
both that a reasonable person would allow his or her child to have
direct contact with the applicant that was not directly supervised
by another person while the applicant was engaged in any type of
child-related work and that the applicant's engagement in any
type of child-related work would not pose an unjustifiable risk to
the safety of children. The Secretary must determine that it is
appropriate to refuse to give an assessment notice unless he or
she is satisfied of these two matters.
Clause 7 inserts new section 19B into the Working with Children Act
2005 to streamline the administrative process for a person to
change from an assessment notice that entitles the person to
engage in volunteer child-related work to an assessment notice
that entitles the person to engage in paid child-related work.
It does this by providing that if a person has a current volunteer
assessment notice and makes an application that specifies that the
applicant intends to engage in paid child-related work, and the
Secretary has not been notified of any relevant change of
circumstances within the meaning of the Working with
Children Act 2005, then the Secretary may consider the
application without having regard to any offence or conduct that
the Secretary considered in relation to the giving of the current
volunteer assessment notice.
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Clause 8 amends section 21 of the Working with Children Act 2005 to
clarify that sections 12 to 14 of the Working with Children Act
2005 apply to a re-assessment process. Section 21 requires the
Secretary to re-assess a person's eligibility to have an assessment
notice if notified of a relevant change of circumstances or if other
specified conditions are met. Sections 12 to 14 of the Working
with Children Act 2005 set out the relevant category 1, 2 and 3
tests to be applied in conducting the re-assessment as to a
person's suitability to hold an assessment notice. Clause 8
clarifies that the circumstances that give rise to the re-assessment
are the circumstances that determine which category's test is to be
applied in conducting the re-assessment rather than the
circumstances that gave rise to the current assessment notice
which is being re-assessed.
Clause 9 introduces a process to be followed by the Secretary where he or
she has made a request for information to a person who holds an
assessment notice and that person fails to provide the requested
information. Currently, the Secretary is able to suspend a
person's assessment notice, however, the suspension cannot be
for a period exceeding six months at which time the assessment
notice becomes current. Clause 9(2) allows the Secretary to
revoke the person's assessment notice if, following the
suspension period, the Secretary has not received the required
information. The Secretary must, as soon as possible after
revocation, notify the person that his or her assessment notice has
been revoked. Additionally, the Secretary must notify any person
who is engaging or is proposing to engage the person whose
assessment notice has been revoked or any listed agency, if the
employer is known to the Secretary. Revocation of an
assessment notice under section 21A of the Working with
Children Act 2005 does not require the Secretary to issue the
person whose assessment notice has been revoked with a
negative notice. The former assessment notice holder is not
prevented from applying for another assessment notice in the
same manner as making an initial application.
Clause 10 provides that the Secretary must suspend a person's assessment
notice if the person holding the assessment notice has been
charged with or been convicted of or found guilty of a category 1
or category 2 offence. Under section 21 of the Working with
Children Act 2005, the Secretary is required to conduct a
re-assessment of a person's eligibility to have an assessment
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notice if he or she becomes aware that a person holding an
assessment notice is charged with a relevant offence within the
meaning of that Act. Clause 10 requires that if the person has
been charged with, convicted of or found guilty of a category 1 or
category 2 offence, then the Secretary must suspend the person's
assessment notice pending completion of the re-assessment.
If after the suspension of the assessment notice, the charge
against the person is withdrawn or the charge is dismissed by a
court or the person is acquitted of the offence by a court, then the
Secretary must reinstate that person's assessment notice.
The Secretary must, as soon as possible after suspension, notify
the person that his or her assessment notice has been suspended.
Additionally, the Secretary must notify any person who is
engaging or is proposing to engage the person whose assessment
has been suspended or any listed agency, if the employer is
known to the Secretary. A person whose assessment notice has
been suspended is treated as not having a current assessment
notice for the period of the suspension and therefore cannot
lawfully engage in child-related work.
Clause 11 strengthens the test that the Secretary to the Department of
Justice must apply under section 23 of the Working with
Children Act 2005 when considering whether to revoke an
assessment notice if the Secretary becomes aware that the holder
of the assessment notice has been charged with, convicted of or
found guilty of an offence other than a relevant offence.
In considering whether it is appropriate to revoke an assessment
notice, the Secretary must have regard to whether because of that
charge, conviction or finding of guilt, the holding of the notice by
the person poses an unjustifiable risk to the safety of children.
In considering whether the holding of the notice by the person
poses an unjustifiable risk to the safety of children, the Secretary
must have regard to the criteria set out in section 13(2)(a) to (i) of
the Working with Children Act 2005. This assessment is now
subject to the Secretary being satisfied that a reasonable person
would allow his or her child to have direct contact with the
person that was not directly supervised by another person while
the applicant was engaged in any type of child-related work and
being satisfied that the person's engagement in any type of child-
related work would not pose an unjustifiable risk to the safety of
children. The Secretary must determine that it is appropriate to
revoke an assessment notice unless he or she is satisfied of these
two matters.
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Subclause (3) clarifies that if the Secretary revokes an assessment
notice using his or her powers under section 23 of the Working
with Children Act 2005, the Secretary must give a negative
notice to the former holder of the assessment notice.
Clause 12 clarifies that a person who has been refused an assessment notice
on a category 1 application and who is subject to a supervision
order or a detention order under the Serious Sex Offenders
(Detention and Supervision) Act 2009 cannot apply to VCAT
for an assessment notice.
Subclause (2) strengthens the test that VCAT must apply when
determining whether giving an assessment notice to a person who
has been refused an assessment notice on a category 1 application
would not pose an unjustifiable risk to the safety of children.
In addition to considering the existing criteria under section 26(2)
of the Working with Children Act 2005, VCAT must also now
be satisfied that a reasonable person would allow his or her child
to have direct contact with the applicant that was not directly
supervised by another person while the applicant was engaged in
any type of child-related work and must be satisfied that the
applicant's engagement in any type of child-related work would
not pose an unjustifiable risk to the safety of children.
Subclause (3) alters the operation of the public interest
consideration by providing that if VCAT is satisfied that giving
an assessment notice would not pose an unjustifiable risk to the
safety of children, VCAT may direct the Secretary to the
Department of Justice to give the applicant an assessment notice
if VCAT is also satisfied that, in all the circumstances, it is in the
public interest to do so. This clause clarifies that VCAT must
first be satisfied that giving an assessment notice would not pose
an unjustifiable risk to the safety of children before it considers
whether it is in the public interest to direct that an assessment
notice be given.
Subclause (4) clarifies that a person who has been given a
negative notice on a category 1 application because that person is
alleged to be a person who is subject to a supervision order or a
detention order under the Serious Sex Offenders (Detention
and Supervision) Act 2009 may apply to VCAT for an
assessment notice on the ground that he or she is not such a
person.
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Clause 13 amends the accredited driver exemption provisions of the
Working with Children Act 2005 so that a person who engages
in work that requires a current driver accreditation under the
Transport (Compliance and Miscellaneous) Act 1983 and that
would ordinarily require a working with children check is not
exempt from the need to obtain a working with children check for
the purposes of performing the driving work if the person is a
holder of an assessment notice that has been suspended under the
Working with Children Act 2005.
Clause 14 inserts new subparagraph (ia) into section 33(2)(a) of the
Working with Children Act 2005. Section 33(2)(a) provides
that it is a defence to a charge of engaging in child-related work
without a current assessment notice if the person had applied for
a working with children check and that application had not been
decided. Clause 14 amends section 33(2)(a) to provide that this
defence is not available to a person who has made category 1 or 2
application if he or she knew or ought reasonably to have known
that the application was a category 1 or 2 application.
Clause 15 amends section 35(2)(a) of the Working with Children Act
2005, which provides that it is a defence to a charge of engaging
a person in child-related work without a current assessment
notice if the person engaging in the work had applied for a
working with children check and that application had not been
decided. Clause 15 provides that this defence is not available if
the application is a category 1 or 2 application and the person
engaging the worker knew or ought reasonably to have known
that the application was a category 1 or 2 application.
Clause 16 amends section 36(2)(a) of the Working with Children Act
2005, which provides that it is a defence for an agency to a
charge of offering, in relation to child-related work, the services
of a worker who does not have a current assessment notice if the
worker had applied for a working with children check and that
application had not been decided. Clause 16 provides that this
defence is not available if the application is a category 1 or 2
application and the agency knew or ought reasonably to have
known that the application was a category 1 or 2 application.
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PART 3--VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL ACT 1998
Clause 17 amends the Victorian and Civil and Administrative Tribunal
Act 1998 to strengthen the test that VCAT must apply in a
proceeding relating to the giving of a negative notice on a
category 2 application under the Working with Children Act
2005. In reviewing the decision of the Secretary of the
Department of Justice, VCAT must have regard to whether
giving an assessment notice would not pose an unjustifiable risk
to the safety of children. In making this assessment, in addition
to considering the existing criteria under section 13(2) of the
Working with Children Act 2005, VCAT must also now be
satisfied that a reasonable person would allow his or her child to
have direct contact with the applicant that was not directly
supervised by another person while the applicant was engaged in
any type of child-related work and must be satisfied that the
applicant's engagement in any type of child-related work would
not pose an unjustifiable risk to the safety of children.
In addition, the operation of the public interest consideration now
provides that before VCAT has regard to whether, in all the
circumstances, it is in the public interest to give the applicant an
assessment notice, VCAT must first be satisfied that giving an
assessment notice would not pose an unjustifiable risk to the
safety of children.
Clause 18 amends the Victorian and Civil and Administrative Tribunal
Act 1998 to strengthen the test that VCAT must apply in a
proceeding relating to the giving of a negative notice on a
category 3 application under the Working with Children Act
2005. In reviewing the decision of the Secretary to the
Department of Justice, VCAT must have regard to whether it
would be appropriate to refuse to give an assessment notice.
In making this assessment, VCAT must have regard to the
existing criteria under section 14(3) of the Working with
Children Act 2005. VCAT must now determine that it is
appropriate to refuse to give an assessment notice unless it is
satisfied that a reasonable person would allow his or her child
to have direct contact with the applicant that was not directly
supervised by another person while the applicant was engaged
in any type of child-related work and was also satisfied that the
applicant's engagement in any type of child-related work would
not pose an unjustifiable risk to the safety of children.
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VCAT must determine that it is appropriate to refuse to give an
assessment notice if it is not satisfied of these two matters.
In addition, the operation of the public interest consideration now
provides that VCAT must first consider whether it would be
appropriate to give an assessment notice before it considers
whether, in all the circumstances, it is in the public interest to
give the applicant an assessment notice.
PART 4--MISCELLANEOUS AND CONSEQUENTIAL
AMENDMENTS
Clause 19 consequentially amends the Transport (Compliance and
Miscellaneous) Act 1983 to maintain consistency between the
working with children check scheme and the accredited driver
scheme under that Act. Clause 19 amends section 169DA(3) of
the Transport (Compliance and Miscellaneous) Act 1983 to
provide that on receiving an application for a working with
children exemption notice, the licensing authority must issue the
driver with a working with children check exemption notice
unless the person is the holder of an assessment notice under the
Working with Children Act 2005 that has been suspended.
Clause 20 consequentially amends section 169DB(1) of the Transport
(Compliance and Miscellaneous) Act 1983 so that the licensing
authority must notify the holder of a working with children check
exemption notice if that exemption notice ceases to have effect
because the holder's assessment notice under the Working with
Children Act 2005 is suspended. The holder must return his or
her exemption notice.
PART 5--REPEAL OF AMENDING ACT
Clause 21 provides for the automatic repeal of this amending Bill on the
first anniversary of its commencement.
10