Working with children act

Version No. 014

Working with Children Act 2005

No. 57 of 2005

Version incorporating amendments as at 8 November 2007

TABLE OF PROVISIONS

PART 1—PRELIMINARY 1

1 Purpose 1

2 Commencement 2

3 Definitions 2

4 Meaning of finding of guilt 7

5 Meaning of charged with an offence 8

6 When is a charge pending? 8

7 Act to bind the Crown 9

PART 2—WORKING WITH CHILDREN CHECK 10

8 Purpose of Part 10

9 What is child-related work? 10

10 Application for working with children check 15

11 Consideration of application 17

12 Category 1 application 18

13 Category 2 application 19

14 Category 3 application 22

15 Withdrawal of application 24

16 Submission sought from applicant before giving negative notice 25

17 Outcome of application 26

18 Copy of notice to be given to employer or agency 28

19 Duration of assessment notice 29

20 Holder of assessment notice to notify of relevant change in circumstances 29

21 Re-assessment 31

22 Notification requirements of holder of assessment notice 32

23 Revocation of assessment notice and surrender of document 33

24 Surrender of assessment notice 35

25 Restriction on right to re-apply for working with children check 36

26 Jurisdiction of VCAT 36

i Section Page

PART 3—EXEMPTIONS FROM WORKING WITH CHILDREN CHECK 40

27 Volunteer whose child is participating or ordinarily participates in the relevant activity 40

28 Person working with closely related child 40

29 Children 41

30 Teachers 41

31 Police officers 42

32 Visiting workers 43

PART 4—OFFENCES CONNECTED WITH CHILD-RELATED WORK 44

33 Engaging in child-related work without an assessment notice 44

34 Offence for holder of negative notice to apply for child-related work 46

35 Offence to engage in child-related work a person who does not have an assessment notice 47

36 Offence for agency to offer the services of a person who does not have an assessment notice 49

37 Using volunteer assessment notice for paid work 50

38 Offence to use false or other person's assessment notice 52

39 False or misleading information 52

40 Confidentiality of information 53

PART 5—MISCELLANEOUS 55

41 Duty on police to notify Secretary of certain matters 55

42 Secretary may notify police of certain matters 55

43 Delegation 55

44 Offences by bodies corporate 56

45 Offences by unincorporated bodies, partnerships etc. 57

46 Giving of notices 57

47 Evidentiary provisions 58

48 Immunity 59

49 Regulations 59

PART 6—TRANSITIONAL PROVISIONS 63

50 Transitional provision—Justice Legislation (Further Amendment) Act 2006 63

51 Transitional provision—Working with Children Amendment Act 2007 63

52, 53 Repealed 64

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ii Section Page

ENDNOTES 65

1. General Information 65

2. Table of Amendments 66

3. Explanatory Details 68

iii

Version No. 014

Working with Children Act 2005

No. 57 of 2005

Version incorporating amendments as at 8 November 2007

The Parliament of Victoria enacts as follows:

PART 1—PRELIMINARY

1 Purpose

(1) The main purpose of this Act is to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body.

(2) This Act amends the Sentencing Act 1991 to prevent sentencing courts from having regard to any consequences that may arise under this Act and amends Schedule 1 to that Act to broaden the range of sexual offences which may cause an offender to be treated as a serious sexual offender under that Act.

(3) This Act also makes minor amendments to—

(a) the Sex Offenders Registration Act 2004 consistent with provisions of this Act; and

(b) the Victorian Civil and Administrative Tribunal Act 1998 with respect to the procedure of VCAT on applications made to it under this Act; and

(c) the Victorian Institute of Teaching Act 2001 to make further provision for certain notification requirements for the purposes of this Act.

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2 Commencement

(1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed.

(2) If a provision of this Act does not come into operation before 1 July 2006, it comes into operation on that day.

3 Definitions

s. 2

(1) In this Act—

agency means a person that carries on (whether or not with a view to profit and whether or not in conjunction with any other business) the business of procuring child-related work for persons seeking such work, whether or not the business includes procuring any other kind of work for those persons or other persons;

assessment notice means an assessment notice given by the Secretary to an applicant for a working with children check under Part 2;

Australian legal practitioner has the same meaning as in the Legal Profession Act 2004;

S. 3(1) def. of carnal knowledge offence inserted by No. 56/2007 s. 3(2).

carnal knowledge offence means an offence specified in clause 1(d)(viii) or (ix) of Schedule 1 to the Sentencing Act 1991;

child means a person under 18 years of age;

child pornography offence means—

(a) an offence against section 68(1) (production of child pornography), 69 (procurement of minor for child pornography) or 70(1) (possession of child pornography) of the Crimes Act 1958; or

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(b) an offence against section 57A of the Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 (publication or transmission of child pornography); or

(c) an offence against section 233BAB(5) or 233BAB(6) of the Customs Act 1901 of the Commonwealth (special offence relating to tier 2 goods) where the goods are goods covered by section 233BAB(1)(h) of that Act; or

(d) an offence referred to in subparagraphs (ii), (iii), (iv), (v), (vi) or (vii) of paragraph (df) of clause 1 of Schedule 1 to the Sentencing Act 1991;

child-related work has the meaning given by section 9;

s. 3

direct contact means any contact between a person and a child that involves—

(a) physical contact; or

(b) face to face oral communication; or

S. 3(1) def. of educational institution substituted by No. 24/2006 s. 6.1.2(Sch. 7 item 48.1).

educational institution means—

(a) any Government school or non-Government school within the meaning of the Education and Training Reform Act 2006; or

(b) any of the following—

(i) a TAFE institute within the meaning of the Education and Training Reform Act 2006;

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(ii) a university with a TAFE division within the meaning of the Education and Training Reform Act 2006 to the extent that the university provides technical or further education;

(iii) a provider of adult, community and further education, within the meaning of the Education and Training Reform Act 2006, that is eligible for funding under that Act;

(iv) an adult education institution within the meaning of the Education and Training Reform Act 2006;

(v) an education and training organisation registered on the State Register under the Education and Training Reform Act 2006—

s. 3

to the extent that the college, university, provider, institution or organisation provides a program of study or training primarily for, or directed at, children and that leads to the award of a Senior Secondary Certificate of Education that is recognised by the AQF within the meaning of the Education and Training Reform Act 2006; or

but does not include—

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(d) except to the extent provided by paragraph (b), a university within the meaning of the Education and Training Reform Act 2006; or

(e) except to the extent provided by paragraph (b), a TAFE institute or an adult education institution within the meaning of the Education and Training Reform Act 2006—

even if that university, college or institution has a student under 18 years of age;

interim negative notice means an interim negative notice given by the Secretary under section 16(1)(b), including one given under that section as applied to a re-assessment by section 21(5);

negative notice means a negative notice given by the Secretary to an applicant for a working with children check under Part 2 or on revoking an assessment notice under section 23;

s. 3

officer—

(a) in relation to a body corporate that is a corporation within the meaning of the Corporations Act, has the same meaning as in section 9 of that Act; and

(b) in relation to any other body corporate, means any person (by whatever name called) who is concerned or takes part in the management of the body corporate;

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S. 3(1) def. of parent amended by Nos 48/2006 s. 42(Sch. item 39.1), 56/2007 s. 3(1)(a).

parent, in relation to a child, has the same meaning as in the Children, Youth and Families Act 2005 but does not include a foster carer;

person includes an unincorporated body or association and a partnership;

S. 3(1) def. of registered medical practitioner inserted by No. 56/2007 s. 3(2).

registered medical practitioner has the same meaning as it has in the Health Professions Registration Act 2005;

relevant finding means a finding of a kind referred to in section 14(1)(a);

S. 3(1) def. of relevant offence amended by No. 56/2007 s. 3(1)(b).

relevant offence means an offence—

s. 3

(a) specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences); or

(b) specified in clause 2 of that Schedule (violent offences); or

(c) specified in clause 4 of that Schedule or against section 71AB or 71B of the Drugs, Poisons and Controlled Substances Act 1981 (drug offences); or

(d) against section 46 or 47 or Part 5 of the Sex Offenders Registration Act 2004 (other than section 70); or

(e) against the Serious Sex Offenders Monitoring Act 2005 (other than section 42(3)); or

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(f) specified in section 13(1)(f), (fa) or (fb) or section 14(1)(ba) or (bb); or

(g) against Part 4 of this Act (other than section 37 or 40);

Secretary means Secretary to the Department of Justice;

working with children check means the process under Part 2 for assessing or re-assessing whether a person is suitable to work in child-related work.

(2) For the purposes of this Act a person is listed with an agency if he or she has entered into an agreement with the agency for the agency to procure child-related work for him or her, whether or not the agreement extends to any other kind of work.

(3) For the purposes of this Act a person does not cease to be a volunteer merely because he or she has all or any of his or her out-of-pocket expenses reimbursed.

4 Meaning of finding of guilt

s. 4

(1) For the purposes of this Act, a reference to a finding of guilt in relation to an offence committed by a person is a reference to any of the following—

(a) a court making a formal finding of guilt in relation to the offence;

(b) a court accepting a plea of guilty from the person in relation to the offence;

(c) a court accepting an admission made under and for the purposes of section 100 of the Sentencing Act 1991, or under equivalent provisions of the laws of a jurisdiction other than Victoria;

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(d) a finding in relation to the offence under section 17(1)(b) or 17(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or under section 17(1)(c) of that Act in relation to an offence available as an alternative or a finding under that Act of not guilty because of mental impairment, or a finding under equivalent provisions of the laws of a jurisdiction other than Victoria.

(2) A reference to a finding of guilt in this Act does not include a finding of guilt that is subsequently quashed or set aside by a court.

5 Meaning of charged with an offence

s. 5

For the purposes of this Act, a person is deemed to have been charged with an offence if—

(a) a presentment has been made or an indictment has been laid for the offence; or

(b) a charge has been filed against the person for the offence, whether or not—

(i) a summons to answer to the charge; or

(ii) a warrant to arrest the person—

has been issued and served.

6 When is a charge pending?

(1) Subject to any regulations made under subsection (2), for the purposes of this Act a charge against a person for an offence is pending until the charge is finally dealt with in any of the following ways—

(a) the charge is withdrawn or the person dies without the charge having been determined;

(b) the charge is dismissed by a court;

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(d) the person is acquitted or found guilty of the offence by a court.

(2) The regulations may prescribe circumstances in which a charge against a person for an offence is not to be taken to be pending for the purposes of this Act.

(3) A reference in this Act to the withdrawing of a charge includes a reference to the entering of a nolle prosequi.

7 Act to bind the Crown

s. 7

(1) This Act binds the Crown, not only in right of the State of Victoria, but also, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.

(2) To avoid doubt, the Crown is a body corporate for the purposes of this Act and the regulations.

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PART 2—WORKING WITH CHILDREN CHECK

8 Purpose of Part

s. 8

(1) The purpose of this Part is to establish a process for assisting in determining whether a person is suitable to work in child-related work.

(2) Nothing in this Act takes away from, or removes the need to comply with, any requirement imposed by or under any other Act with respect to child-related work.

Note

Child-related work includes voluntary work and practical training as well as paid employment (see section 9).

9 What is child-related work?

S. 9(1) amended by No. 79/2006 s. 62(1).

(1) For the purposes of this Act, child-related work is—

(a) work engaged in—

(i) under a contract of employment or a contract for services (whether written or unwritten); or

(ii) as a minister of religion or as part of the duties of a religious vocation; or

(iii) as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or

S. 9(1)(b) amended by Nos 24/2006 s. 6.1.2(Sch. 7 item 48.2), 56/2007 s. 4(2).

(b) practical training undertaken as part of an educational or vocational course other than under an arrangement or agreement under Part 5.4 of the Education and Training Reform Act 2006; or

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community-based order, a drug treatment order or an intensive correction order within the meaning of the Sentencing Act 1991) other than unpaid work engaged in for a private or domestic purpose—

that usually involves, or is likely usually to involve, regular direct contact with a child in connection with a service, body, place or activity specified in subsection (3) in circumstances where that contact is not directly supervised by another person.

Example to s. 9(1) substituted by No. 56/2007 s. 4(1).

Example

A is employed as a nurse in the Geriatric ward of a public hospital. One day, a nurse who usually works in the Paediatric ward is unwell and A works in that nurse's place for that day. A is not engaged in child-related work as A's work does not usually involve regular direct contact with children.

s. 9

Notes

1 Direct contact is defined in section 3(1).

2 Reimbursement for out-of-pocket expenses does not stop a person being regarded as a volunteer: see section 3(3).

(2) For the purposes of this Act, direct supervision of a person requires immediate and personal supervision but does not require constant physical presence.

Example

A person who is directly supervising a worker leaves the room in which the worker is engaging in the work to make a phone call. The fact that the supervisor has left the room for a short period does not mean that the worker is no longer under direct supervision.

Note

Supervised has its ordinary, everyday meaning. A supervisor is a person who has the role of overseeing the work of another person while that person engages in the work.

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S. 9(3) amended by No. 79/2006 s. 62(2).

(3) The services, bodies, places or activities in connection with which regular direct contact with a child may result in work, or practical training, of a kind referred to in subsection (1) being child-related work are—

(a) child protection services;

(b) child care services mentioned in section 194(1) of the A New Tax System (Family Assistance) (Administration) Act 1999 of the Commonwealth;

(d) educational institutions;

S. 9(3)(e) amended by No. 48/2006 s. 42(Sch. item 39.2).

(e) community services, remand centres, youth residential centres, youth supervision units or youth justice centres, within the meaning of the Children, Youth and Families Act 2005 or probation services under that Act;

s. 9

(f) refuges or other residential facilities used by children;

(g) paediatric wards of public hospitals within the meaning of the Health Services Act 1988 or of private hospitals within the meaning of that Act;

(h) clubs, associations or movements (including of a cultural, recreational or sporting nature) that provide services or conduct activities for, or directed at, children or whose membership is mainly comprised of children;

(i) religious organisations;

(j) baby sitting or child minding services arranged by a commercial agency;

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(k) fostering children;

(l) providing, on a publicly-funded or commercial basis, a transport service specifically for children;

S. 9(3)(m) amended by No. 56/2007 s. 4(3).

(m) coaching or tuition services of any kind for children;

(n) counselling or other support services for children;

(o) overnight camps for children regardless of the type of accommodation or of how many children are involved;

(p) school crossing services, being services provided by people employed to assist children to cross roads on their way to or from school;

(q) providing, on a commercial basis and not merely incidentally to or in support of other business activities, an entertainment or party service specifically for children;

s. 9

(r) providing, on a commercial basis and not merely incidentally to or in support of other business activities, gym or play facilities specifically for children;

Example

The provision of play facilities for children by a fast-food business may be merely incidental to the business of providing food.

(s) providing, on a commercial basis and not merely incidentally to or in support of other business activities, photography services specifically for children;

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(t) talent or beauty competitions held for children on a commercial basis and not merely incidentally to or in support of other business activities.

S. 9(3A) inserted by No. 79/2006 s. 62(3).

(3A) Despite subsection (1), for the purposes of sections 33 and 35 to 37, child-related work is only work, or practical training, of a kind referred to in subsection (1) that is engaged in or undertaken, in connection with a service, body, place or activity specified in subsection (3), on or after the relevant date in relation to that service, body, place or activity or 1 July 2011 (whichever is the earlier date).

(4) For the purposes of this Act, the relevant date, in relation to a service, body, place or activity specified in subsection (3), means the date fixed for the purposes of that service, body, place or activity by an Order made under subsection (5).

(5) The Governor in Council may, by Order published in the Government Gazette, fix a date for the purposes of a service, body, place or activity specified in subsection (3).

s. 9

(6) An Order under subsection (5) may fix different dates for the purposes of—

(a) different services, bodies, places or activities; and

(b) different classes of a specified service, body, place or activity.

(7) For the purposes of this Act, a person is engaged in child-related work if he or she is employed under Part 3 of the Public Administration Act 2004 in the administration of this Act.

S. 9(8) substituted by No. 56/2007 s. 4(4).

(8) For the purposes of this Act, a person is not engaged in child-related work merely because he or she—

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(a) is participating in an activity with a child on the same basis as the child; or

Example

An adult playing in a cricket team alongside a child is not engaging in child-related work.

(b) is supervising a child undertaking practical training as part of an arrangement or agreement under Part 5.4 of the Education and Training Reform Act 2006.

10 Application for working with children check

s. 10

(1) A person may apply to the Secretary for a working with children check to be carried out on him or her and an assessment notice to be given to him or her on completion of that check.

(2) An application must—

S. 10(2)(a) amended by No. 27/2006 s. 23(1).

(a) be in the form approved by the Secretary; and

S. 10(2)(b) substituted by No. 56/2007 s. 5.

(b) be—

(i) signed by the applicant; or

(ii) if the applicant is not able to sign the application because of an impairment within the meaning of the Equal Opportunity Act 1995, be accompanied by a statement from a registered medical practitioner certifying—

(A) that the person suffers from such an impairment; and

(B) that the person is not able to sign the application because of that impairment; and

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(d) be accompanied by the prescribed application fee.

S. 10(2A) inserted by No. 27/2006 s. 23(2).

(2A) The approved form must provide for the following particulars—

(a) the full name of the applicant and any other names by which the applicant is or has been known; and

(b) the date and place of birth of the applicant; and

s. 10

(d) the residential address and telephone number of the applicant; and

(e) the type of child-related work in which the applicant is engaged or intends to engage and whether it is for profit or gain; and

(f) the name, address and telephone number of each person with whom the applicant is engaged in child-related work; and

(g) any other information in relation to the applicant that the Secretary reasonably believes is appropriate.

S. 10(3) amended by No. 27/2006 s. 23(3).

(3) The approved form is to include provision for—

(a) authorising the conduct (in connection with the consideration of the application and, if an assessment notice is given, from time to time while that notice remains in force) of a police record check on the applicant; and

(b) consenting to enquiries being made about the applicant to any relevant prescribed body (in connection with the consideration of the application and, if an assessment notice is given, from time to time while that notice

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remains in force) and authorising the disclosure by that body of any relevant information.

11 Consideration of application

s. 11

(1) In considering an application made under section 10, the Secretary—

(a) must arrange for the conduct of a police record check on the applicant; and

(b) may have regard to any notice given to the Secretary by, and make enquiries to, any relevant prescribed body; and

(c) may make any other enquiries to, or seek advice or information on the application from, the Director of Public Prosecutions or any other person or source that the Secretary thinks fit; and

(d) may require the applicant to provide any further information that the Secretary thinks fit in the manner required by the Secretary within 28 days or any longer period that the Secretary determines.

(2) Despite subsection (1)(a), the Secretary is not required to arrange for the conduct of a police record check on an applicant if—

(a) a check of a prescribed kind has previously been conducted on the applicant otherwise than under this Act; and

(b) notice of the result of that check has been provided to the Secretary in accordance with the regulations.

S. 11(3) amended by No. 56/2007 s. 6. <