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PARLIAMENT OF VICTORIA
Working with Children Act 2005
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 2
1. Purpose 2
2. Commencement 2
3. Definitions 3
4. Meaning of finding of guilt 8
5. Meaning of "charged with an offence" 9
6. When is a charge "pending"? 9
7. Act to bind the Crown 10
PART 2--WORKING WITH CHILDREN CHECK 11
8. Purpose of Part 11
9. What is child-related work? 11
10. Application for working with children check 15
11. Consideration of application 16
12. Category 1 application 17
13. Category 2 application 18
14. Category 3 application 21
15. Withdrawal of application 22
16. Submission sought from applicant before giving negative
notice 23
17. Outcome of application 24
18. Copy of notice to be given to employer or agency 25
19. Duration of assessment notice 26
20. Holder of assessment notice to notify of relevant change in
circumstances 26
21. Re-assessment 28
22. Notification requirements of holder of assessment notice 29
23. Revocation of assessment notice and surrender of document 29
24. Surrender of assessment notice 31
25. Restriction on right to re-apply for working with children
check 31
26. Jurisdiction of VCAT 32
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Clause Page
PART 3--EXEMPTIONS FROM WORKING WITH
CHILDREN CHECK 35
27. Volunteer whose child is participating or ordinarily participates
in the relevant activity 35
28. Person working with closely related child 35
29. Children 36
30. Teachers 36
31. Police officers 37
32. Visiting workers 38
PART 4--OFFENCES CONNECTED WITH CHILD-RELATED
WORK 39
33. Engaging in child-related work without an assessment notice 39
34. Offence for holder of negative notice to apply for child-
related work 41
35. Offence to engage in child-related work a person who does
not have an assessment notice 41
36. Offence for agency to offer the services of a person who
does not have an assessment notice 43
37. Using volunteer assessment notice for paid work 44
38. Offence to use false or other person's assessment notice 45
39. False or misleading information 45
40. Confidentiality of information 46
PART 5--MISCELLANEOUS 48
41. Duty on police to notify Secretary of certain matters 48
42. Secretary may notify police of certain matters 48
43. Delegation 48
44. Offences by bodies corporate 49
45. Offences by unincorporated bodies, partnerships etc. 50
46. Giving of notices 50
47. Evidentiary provisions 51
48. Immunity 52
49. Regulations 52
PART 6--AMENDMENT OF CERTAIN ACTS 56
50. Amendment of Sentencing Act 1991 56
51. Amendment of Sex Offenders Registration Act 2004 60
52. Amendment of Victorian Civil and Administrative Tribunal
Act 1998 64
53. Amendment of Victorian Institute of Teaching Act 2001 65
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Clause Page
ENDNOTES 67
INDEX 68
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551322B.I1-20/7/2005 BILL LA INTRODUCTION 20/7/2005
PARLIAMENT OF VICTORIA
A BILL
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, to amend the
Sentencing Act 1991, the Sex Offenders Registration Act 2004, the
Victorian Civil and Administrative Tribunal Act 1998 and the
Victorian Institute of Teaching Act 2001 and for other purposes.
Working with Children Act 2005
The Parliament of Victoria enacts as follows:
1
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s. 1
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
5
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
10
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--
15
(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
20
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.
25
2. Commencement
(1) Subject to sub-section (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
30
operation on that day.
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3. Definitions
(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)
5
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;
10
"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
15
2004;
"child" means a person under 18 years of age;
"child pornography offence" means--
(a) an offence against section 68(1)
(production of child pornography),
20
69 (procurement of minor for child
pornography) or 70(1) (possession of
child pornography) of the Crimes Act
1958; or
(b) an offence against section 57A of the
25
Classification (Publications, Films
and Computer Games)
(Enforcement) Act 1995 (publication
or transmission of child pornography);
or
30
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(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
5
233BAB(1)(h) of that Act; or
(d) an offence referred to in sub-
paragraphs (ii), (iii), (iv), (v), (vi)
or (vii) of paragraph (df) of clause 1
of Schedule 1 to the Sentencing Act
10
1991;
"child-related work" has the meaning given by
section 9;
"direct contact" means any contact between a
person and a child that involves--
15
(a) physical contact; or
(b) face to face oral communication; or
(c) physically being within eyeshot;
"educational institution" means--
(a) any State school established under
20
section 21 of the Education Act 1958
or any school registered under Part III
of that Act; or
(b) any of the following--
(i) a TAFE college within the
25
meaning of the Vocational
Education and Training Act
1990;
(ii) a university with a TAFE division
within the meaning of the
30
Vocational Education and
Training Act 1990 to the extent
that the university provides
technical or further education;
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(iii) a provider of adult, community
and further education, within the
meaning of the Adult,
Community and Further
Education Act 1991, that is
5
eligible for funding under
section 6(1)(b) of that Act;
(iv) an adult education institution
within the meaning of the Adult,
Community and Further
10
Education Act 1991;
(v) an organisation on the Register of
Education and Training
Organisations within the meaning
of the Victorian Qualifications
15
Authority Act 2000--
to the extent that the college, university,
provider, institution or organisation
provides a program of study or training
primarily for, or directed at, children
20
and that leads to the award of a Senior
Secondary Certificate of Education that
is recognised by the AQF within the
meaning of the Victorian
Qualifications Authority Act 2000; or
25
(c) any other institution that provides a
program of study or training primarily
for, or directed at, children--
but does not include--
(d) except to the extent provided by
30
paragraph (b), a university specified in
Schedule 1 to the Tertiary Education
Act 1993; or
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(e) except to the extent provided by
paragraph (b), a TAFE college within
the meaning of the Vocational
Education and Training Act 1990 or
an adult education institution within the
5
meaning of the Adult, Community
and Further Education Act 1991--
even if that university, college or institution
has a student under 18 years of age;
"interim negative notice" means an interim
10
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
15
by the Secretary to an applicant for a
working with children check under Part 2 or
on revoking an assessment notice under
section 23;
"officer"--
20
(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,
25
means any person (by whatever name
called) who is concerned or takes part
in the management of the body
corporate;
"parent", in relation to a child, has the same
30
meaning as in the Children and Young
Persons Act 1989;
"person" includes an unincorporated body or
association and a partnership;
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"relevant finding" means a finding of a kind
referred to in section 14(1)(a);
"relevant offence" means an offence--
(a) specified in clause 1 of Schedule 1 to
the Sentencing Act 1991 (sexual
5
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
10
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
15
(other than section 70); or
(e) against the Serious Sex Offenders
Monitoring Act 2005 (other than
section 42(3)); or
(f) specified in section 13(1)(f); or
20
(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
25
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
30
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.
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(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
5
(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
10
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
15
Sentencing Act 1991, or under equivalent
provisions of the laws of a jurisdiction other
than Victoria;
(d) a finding in relation to the offence under
section 17(1)(b) or 17(1)(c) of the Crimes
20
(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
25
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.
30
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5. Meaning of "charged with an offence"
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
5
(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.
10
6. When is a charge "pending"?
(1) Subject to any regulations made under sub-
section (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
15
ways--
(a) the charge is withdrawn or the person dies
without the charge having been determined;
(b) the charge is dismissed by a court;
(c) the person is discharged by a court following
20
a committal hearing;
(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
25
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.
30
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7. Act to bind the Crown
(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.
5
(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
(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.
5
(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.
10 Note: Child-related work includes voluntary work and practical
training as well as paid employment (see section 9).
9. What is child-related work?
(1) For the purposes of this Act, child-related work
is--
(a) work engaged in--
15
(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
20
(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
25
(b) practical training undertaken as part of an
educational or vocational course other than
under an arrangement within the meaning of
Part IVA of the Education Act 1958; or
(c) work engaged in as a volunteer (including
30
engaging in unpaid community work under a
community-based order, a drug treatment
order or an intensive correction order within
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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
5
connection with a service, body, place or activity
specified in sub-section (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) in circumstances where that contact is not
10
directly supervised by another person.
Example
A water main bursts at a school during school hours.
A plumber is called to the school to deal with the
15 emergency. It is rare for the plumber to be called out to
a school or other place specified in sub-section (3).
The plumber is not engaged in child-related work as his
or her work does not usually involve regular direct contact
with children.
20 Note 1: "Direct contact" is defined in section 3(1).
Note 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
25
supervision but does not require constant physical
presence.
Example
A person who is directly supervising a worker leaves the
30 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.
35 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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(3) The services, bodies, places or activities in
connection with which regular direct contact with
a child may result in work being child-related
work are--
(a) child protection services;
5
(b) child care services mentioned in section
194(1) of the A New Tax System (Family
Assistance) (Administration) Act 1999 of the
Commonwealth;
(c) children's services within the meaning of the
10
Children's Services Act 1996;
(d) educational institutions;
(e) community services, remand centres, youth
residential centres, youth supervision units or
youth training centres, within the meaning of
15
the Children and Young Persons Act 1989
or probation services under that Act;
(f) refuges or other residential facilities used by
children;
(g) paediatric wards of public hospitals within
20
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)
25
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
30
arranged by a commercial agency;
(k) fostering children;
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(l) providing, on a publicly-funded or
commercial basis, a transport service
specifically for children;
(m) coaching or private tuition services of any
kind for children;
5
(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;
10
(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
15
merely incidentally to or in support of other
business activities, an entertainment or party
service specifically for children;
(r) providing, on a commercial basis and not
merely incidentally to or in support of other
20
business activities, gym or play facilities
specifically for children;
Example
The provision of play facilities for children by a fast-
25 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;
30
(t) talent or beauty competitions held for
children on a commercial basis and not
merely incidentally to or in support of other
business activities.
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(4) For the purposes of this Act, "the relevant date",
in relation to a service, body, place or activity
specified in sub-section (3), means the date fixed
for the purposes of that service, body, place or
activity by an Order made under sub-section (5).
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 sub-section (3).
(6) An Order under sub-section (5) may fix different
10
dates for the purposes of--
(a) different services, bodies, places or
activities; and
(b) different classes of a specified service, body,
place or activity.
15
(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.
(8) For the purposes of this Act, a person is not
20
engaged in child-related work merely because he
or she is participating in an activity with a child
on the same basis as the child.
Example
25 An adult playing in a cricket team alongside a child is not
engaged in child-related work.
10. Application for working with children check
(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
30
her on completion of that check.
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(2) An application must--
(a) be in the prescribed form; and
(b) be signed by the applicant; and
(c) include any identifying information of a
prescribed kind; and
5
(d) be accompanied by the prescribed
application fee.
(3) The prescribed form is to include provision for--
(a) authorising the conduct (in connection with
the consideration of the application and, if an
10
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
15
(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) and authorising the
disclosure by that body of any relevant
20
information.
11. Consideration of application
(1) In considering an application made under
section 10, the Secretary--
(a) must arrange for the conduct of a police
25
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
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(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
5
(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.
10
(2) Despite sub-section (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
15
than under this Act; and
(b) notice of the result of that check has been
provided to the Secretary in accordance with
the regulations.
(3) A person in responding to an enquiry or a request
20
for advice or information from the Secretary under
sub-section (1) does not contravene any duty of
confidentiality imposed on the person by or under
any Act or agreement, despite anything to the
contrary in that Act or agreement.
25
12. Category 1 application
(1) An application is a category 1 application for the
purposes of this Act if it is in respect of a
person--
(a) who is subject to reporting obligations
30
imposed on him or her by Part 3 of the Sex
Offenders Registration Act 2004; or
(b) who is subject to an extended supervision
order under the Serious Sex Offenders
Monitoring Act 2005; or
35
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(c) who, as an adult, has at any time (whether
before, on or after the commencement of this
section) been convicted or found guilty of an
offence (other than a child pornography
offence) specified in clause 1 of Schedule 1
5
to the Sentencing Act 1991 (sexual
offences) in circumstances where the person
against whom the offence is committed is a
child; or
(d) who, as an adult, has at any time (whether
10
before, on or after the commencement of this
section) been convicted or found guilty of a
child pornography offence.
(2) The Secretary must refuse to give an assessment
notice on a category 1 application.
15
13. Category 2 application
(1) An application is a category 2 application for the
purposes of this Act if it is in respect of a
person--
(a) who has at any time (whether before, on or
20
after the commencement of this section)
been convicted or found guilty of an offence
specified in clause 1 of Schedule 1 to the
Sentencing Act 1991 (sexual offences) other
than in circumstances referred to in section
25
12(1)(c) or 12(1)(d); or
(b) who has at any time (whether before, on or
after the commencement of this section)
been convicted or found guilty of an offence
specified in clause 2 of Schedule 1 to the
30
Sentencing Act 1991 (violent offences); or
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(c) who has at any time (whether before, on or
after the commencement of this section)
been convicted or found guilty of an offence
specified in clause 4 of Schedule 1 to the
Sentencing Act 1991 (drug offences); or
5
(d) who has at any time (whether before, on or
after the commencement of this section)
been convicted or found guilty of an offence
against section 71AB (trafficking in a drug
of dependence to a child) or 71B (supply of a
10
drug of dependence to a child) of the Drugs,
Poisons and Controlled Substances Act
1981; or
(e) who has at any time (whether before, on or
after the commencement of this section)
15
been convicted or found guilty of an offence
against section 46 or 47 of the Sex
Offenders Registration Act 2004 or against
Part 5 of that Act (other than section 70) or
against the Serious Sex Offenders
20
Monitoring Act 2005 (other than
section 42(3)); or
(f) who has at any time (whether before, on or
after the commencement of this section)
been convicted or found guilty of an offence
25
against section 271.4 (trafficking in children)
or section 271.7 (domestic trafficking in
children) of the Criminal Code of the
Commonwealth other than in circumstances
where the purpose of the exploitation is to
30
provide sexual services within the meaning
of that section; or
(g) against whom a charge of an offence
specified in clause 1 of Schedule 1 to the
Sentencing Act 1991 or an offence covered
35
by paragraph (b), (c), (d), (e) or (f) of this
sub-section is pending.
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(2) The Secretary must refuse to give an assessment
notice on a category 2 application unless satisfied
that doing so would not pose an unjustifiable risk
to the safety of children, having regard to--
(a) the nature and gravity of the offence or
5
alleged offence and its relevance to child-
related work; and
(b) the period of time since the applicant
committed, or allegedly committed, the
offence; and
10
(c) whether a finding of guilt or a conviction
was recorded for the offence or a charge for
the offence is still pending; and
(d) the sentence imposed for the offence; and
(e) the ages of the applicant and of any victim at
15
the time the applicant committed, or
allegedly committed, the offence; and
(f) whether or not the conduct that constituted
the offence or to which the charge relates has
been decriminalised since the applicant
20
committed, or allegedly committed, the
offence; and
(g) the applicant's behaviour since he or she
committed, or allegedly committed, the
offence; and
25
(h) the likelihood of future threat to a child
caused by the applicant; and
(i) any information given by the applicant in, or
in relation to, the application; and
(j) any other matter that the Secretary considers
30
relevant to the application.
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14. Category 3 application
(1) An application is a category 3 application for the
purposes of this Act if it is in respect of a
person--
(a) who has at any time (whether before, on or
5
after the commencement of this section)
been subject to a finding of a prescribed kind
made by, or on behalf of, a prescribed body;
or
(b) who has at any time (whether before, on or
10
after the commencement of this section)
been convicted or found guilty of an offence
against Part 4 of this Act (other than
section 37 or 40); or
(c) against whom a charge of an offence covered
15
by paragraph (b) is pending.
(2) The Secretary must give an assessment notice on a
category 3 application unless satisfied, in the
particular circumstances, that it is appropriate to
refuse to do so.
20
(3) In considering whether it is appropriate to refuse
to give an assessment notice, the Secretary must
have regard to--
(a) the nature and gravity of the conduct and its
relevance to child-related work; and
25
(b) the period of time since the applicant
engaged, or allegedly engaged, in the
conduct; and
(c) in the case of an offence, whether a finding
of guilt or a conviction was recorded for it or
30
a charge for it is still pending; and
(d) in the case of an offence, the sentence
imposed for it; and
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(e) the ages of the applicant and of any victim at
the time the applicant engaged, or allegedly
engaged, in the conduct; and
(f) whether or not the conduct has been
decriminalised or has ceased to be subject to
5
disciplinary charges since the applicant
engaged, or allegedly engaged, in it; and
(g) the applicant's behaviour since he or she
engaged, or allegedly engaged, in the
conduct; and
10
(h) the likelihood of future threat to a child
caused by the applicant; and
(i) any information given by the applicant in, or
in relation to, the application; and
(j) any other matter that the Secretary considers
15
relevant to the application.
15. Withdrawal of application
(1) An applicant for a working with children check
may withdraw his or her application at any time
before the first of the following to occur--
20
(a) the Secretary finally decides the application;
(b) the Secretary gives an interim negative
notice under section 16(1)(b).
(2) The Secretary must treat an application as having
been withdrawn if the applicant does not provide
25
any further information required under section
11(1)(d) within the period required under that
section.
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(3) If--
(a) the Secretary is aware that the applicant is a
person who--
(i) is, or is proposed to be, engaged in
child-related work by another person;
5
or
(ii) is listed with an agency; and
(b) the application is withdrawn or treated as
withdrawn under this section--
the Secretary, if he or she is aware of the identity
10
of that other person or that agency, must notify
that other person or that agency in writing of the
withdrawal.
Note: "Listed with an agency" is defined in section 3(2).
16. Submission sought from applicant before giving
15
negative notice
(1) If the Secretary proposes, or is required under
section 17(3), to give a negative notice on an
application, the Secretary must before finally
deciding the application--
20
(a) give a written notice to the applicant that--
(i) informs him or her of the proposal or
requirement; and
(ii) states the information about him or her
of which the Secretary is aware; and
25
(iii) invites him or her to make a submission
to the Secretary, in writing or in another
form approved by the Secretary, within
the period specified in the notice (not
being less than 28 days after the date of
30
the notice) about his or her eligibility to
be given an assessment notice; and
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(b) give an interim negative notice to the
applicant.
(2) Before finally deciding the application the
Secretary must consider any submission made by
the applicant in response to a notice under sub-
5
section (1)(a) and within the period required under
that sub-section.
(3) The Secretary must give a negative notice to the
applicant if he or she does not make a submission
in response to a notice under sub-section (1)(a)
10
within the period required under that sub-section.
(4) Any information given by a person under sub-
section (1)(a)(iii) (including that sub-section as
applied to a re-assessment by section 21(5)) is not
admissible in evidence against the person in--
15
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a
penalty--
other than--
(c) proceedings in respect of an offence against
20
this Act; or
(d) a proceeding in respect of the falsity or
misleading nature of the information.
17. Outcome of application
(1) The Secretary must give an assessment notice on
25
an application that is not a category 1, 2 or 3
application.
Note: See sections 12(2), 13(2) and 14(2) regarding the
manner in which the Secretary is required to deal
30 with a category 1, 2 or 3 application.
(2) An assessment notice must--
(a) state that the person in respect of whom it
was issued has passed a working with
children check; and
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(b) if given on an application that did not specify
an intention to engage in child-related work
for profit or gain, state that the notice cannot
be used in respect of child-related work
engaged in for profit or gain.
5
(3) The Secretary must give a negative notice on an
application that is a category 1 application or to an
applicant who is otherwise refused an assessment
notice.
(4) If the Secretary gives a negative notice to an
10
applicant, he or she must give to the applicant
with that notice a written notice that--
(a) states the reasons for the decision on the
application; and
(b) informs the applicant that he or she may
15
apply to VCAT to have the decision
reviewed or, in the case of a category 1
application, to have VCAT consider whether
an assessment notice is to be given; and
(c) explains how an application may be made to
20
VCAT.
18. Copy of notice to be given to employer or agency
If the Secretary--
(a) gives an assessment notice, an interim
negative notice or a negative notice to an
25
applicant; and
(b) is aware that the applicant is a person who--
(i) is, or is proposed to be, engaged in
child-related work by another person;
or
30
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(ii) is listed with an agency--
the Secretary, if he or she is aware of the identity
of that other person or that agency, must also give
a copy of that notice to that other person or that
agency.
5
Note: "Listed with an agency" is defined in section 3(2).
19. Duration of assessment notice
(1) An assessment notice remains in force for 5 years
beginning on the date of the notice unless sooner
revoked under section 23 or surrendered under
10
section 24.
(2) A person who has a current assessment notice
may apply for the carrying out of a working with
children check and a new assessment notice at any
time within the period beginning 6 months before,
15
and ending 3 months after, the expiry of the
notice.
(3) Despite sub-section (1), for the purposes of Part 4
a person must be regarded as still having a current
assessment notice at any time within 3 months
20
after its expiry.
20. Holder of assessment notice to notify of relevant
change in circumstances
(1) If a relevant change in circumstances occurs with
respect to a person who has a current assessment
25
notice or who has applied for one and the
application is still pending, that person must
notify--
(a) the Secretary; and
(b) any person by whom he or she is engaged in
30
child-related work; and
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(c) any agency with which he or she is listed--
in writing of the change within 7 days after
becoming aware of the change.
Penalty: Level 9 fine (60 penalty units
maximum).
5
Note: "Listed with an agency" is defined in section 3(2).
(2) For the purposes of sub-section (1) a relevant
change in circumstances is--
(a) the person being charged with a relevant
offence; or
10
(b) the person being convicted or found guilty of
a relevant offence or the charge being
otherwise finally dealt with; or
(c) the person becoming subject to reporting
obligations imposed on him or her by Part 3
15
of the Sex Offenders Registration Act
2004; or
(d) the person becoming subject to an extended
supervision order under the Serious Sex
Offenders Monitoring Act 2005; or
20
(e) a relevant finding being made against the
person.
(3) In a proceeding for an offence against sub-
section (1) constituted by not notifying the
Secretary of how a charge of an offence was
25
finally dealt with, it is a defence to the charge for
the accused to prove that--
(a) he or she notified the Secretary of the filing
of the charge in accordance with sub-
section (1); and
30
(b) the Secretary re-assessed under section 21
his or her eligibility to have an assessment
notice; and
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(c) his or her assessment notice was not revoked
following the re-assessment; and
(d) he or she was not found guilty of the charge.
21. Re-assessment
(1) The Secretary must re-assess a person's eligibility
5
to have an assessment notice--
(a) if notified of a relevant change in
circumstances under section 20; or
(b) if notified by a prescribed body of a relevant
finding being made against the person; or
10
(c) if notified by the Chief Commissioner of
Police under section 41 of a charge or of how
a charge has been finally dealt with.
(2) The Secretary is not required to re-assess a
person's eligibility to have an assessment notice
15
on being notified of a charge of an offence being
finally dealt with without the person being found
guilty if a re-assessment was carried out on the
Secretary being notified of the filing of the charge
and the assessment notice was not revoked
20
following that re-assessment.
(3) On a re-assessment the Secretary may do anything
that he or she has power to do under section 11 in
considering an application but is not required to
consider any matter other than the matter that has
25
given rise to the re-assessment.
(4) If an assessment notice is due to expire within
12 months after the date on which a re-assessment
is required, the Secretary may invite the holder of
the assessment notice to make a fresh application
30
under section 10, despite section 19(2).
(5) Sections 16 to 18 and 26 apply to a re-assessment
in the same way that they apply to an application.
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(6) For the purposes of Part 4 a person must be
regarded as still having a current assessment
notice if--
(a) an interim negative notice has been given
under section 16(1)(b) as applied to a
5
re-assessment by sub-section (5) of this
section; and
(b) his or her assessment notice has not been--
(i) revoked under section 23 following the
re-assessment; or
10
(ii) surrendered under section 24.
22. Notification requirements of holder of assessment
notice
If a negative notice or an interim negative notice
is given to a person, that person must notify--
15
(a) any person by whom he or she is engaged in
child-related work; and
(b) any agency with which he or she is listed--
in writing of the giving of that notice within
7 days after being given it.
20
Penalty: Level 9 fine (60 penalty units
maximum).
Note: "Listed with an agency" is defined in section 3(2).
23. Revocation of assessment notice and surrender of
document
25
(1) The Secretary may at any time revoke an
assessment notice following a re-assessment of
the person's eligibility to have the notice.
(2) If the Secretary revokes an assessment notice, the
Secretary must give a negative notice to the
30
former holder of the assessment notice.
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(3) The Secretary may give a notice to a person
whose assessment notice is revoked or has been
expired for more than 3 months requiring him or
her to surrender to the Secretary in the manner
specified in the notice and within the period for
5
doing so specified in the notice--
(a) the assessment notice document; or
(b) a document in the prescribed form
evidencing the giving of the assessment
notice.
10
(4) A person must not, without reasonable excuse,
refuse or fail to surrender a document as required
by a notice given by the Secretary under sub-
section (3).
Penalty: Level 9 fine (60 penalty units
15
maximum).
(5) If the Secretary--
(a) gives a notice under sub-section (3)
consequent on the expiry of an assessment
notice; and
20
(b) is aware that the former holder of the notice
is a person who--
(i) is, or is proposed to be, engaged in
child-related work by another person;
or
25
(ii) is listed with an agency--
the Secretary, if he or she is aware of the identity
of that other person or that agency, must notify
that other person or that agency in writing of the
expiry.
30
Note: "Listed with an agency" is defined in section 3(2).
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24. Surrender of assessment notice
(1) The holder of a current assessment notice may at
any time surrender the assessment notice
document to the Secretary.
(2) For the purposes of this Act, a person who
5
surrenders a current assessment notice document
is to be regarded as not having a current
assessment notice.
25. Restriction on right to re-apply for working with
children check
10
(1) A person who has been given a negative notice is
not entitled to make a further application under
section 10 until 5 years have elapsed after the date
of that notice unless, since that date, there has
been a relevant change in circumstances.
15
(2) For the purposes of sub-section (1) a relevant
change in circumstances is--
(a) a charge that was pending at the date of the
notice being finally dealt with without the
person being found guilty of the offence; or
20
(b) a finding of guilt being quashed or set aside
by a court after the date of the notice; or
(c) the person ceasing to be subject to reporting
obligations imposed on him or her by Part 3
of the Sex Offenders Registration Act
25
2004; or
(d) the person ceasing to be subject to an
extended supervision order under the
Serious Sex Offenders Monitoring Act
2005; or
30
(e) a relevant finding being quashed or set aside
after the date of the notice.
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26. Jurisdiction of VCAT
(1) A person who is refused an assessment notice on a
category 1 application (other than a person
referred to in paragraph (a) or (b) of section 12(1))
may apply to VCAT for an assessment notice to
5
be given to him or her.
(2) VCAT must not make an order for the giving of
an assessment notice on an application under sub-
section (1) unless it is satisfied that giving the
notice would not pose an unjustifiable risk to the
10
safety of children, having regard to--
(a) the nature and gravity of the offence and its
relevance to child-related work; and
(b) the period of time since the applicant
committed the offence; and
15
(c) whether a finding of guilt or a conviction
was recorded for the offence or a charge for
the offence is still pending; and
(d) the sentence imposed for the offence; and
(e) the ages of the applicant and of any victim at
20
the time the applicant committed the offence;
and
(f) whether or not the conduct that constituted
the offence has been decriminalised since the
applicant engaged in it; and
25
(g) the applicant's behaviour since he or she
committed the offence; and
(h) the likelihood of future threat to a child
caused by the applicant; and
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(i) any information given by the applicant in, or
in relation to, the application; and
(j) any other matter that VCAT considers
relevant to the application.
(3) Subject to sub-section (2), VCAT may by order
5
direct the Secretary to give an assessment notice
to an applicant if it is satisfied that, in all the
circumstances, it is in the public interest to do so.
(4) The Secretary must comply with an order made by
VCAT under sub-section (3).
10
(5) Subject to sub-section (6), an applicant who has
been given a negative notice--
(a) on a category 1 application on the ground
that he or she is a person referred to in
paragraph (a) or (b) of section 12(1); or
15
(b) on a category 2 application or a category 3
application--
may apply to VCAT for review of the decision to
give the notice.
(6) A person who is given a negative notice in the
20
circumstances described in sub-section (5)(a) may
only apply for review on the ground that he or she
is not such a person.
(7) An application under sub-section (1) or for review
under sub-section (5) must be made within
25
28 days after the later of--
(a) the day on which the decision of the
Secretary is made;
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998, the
30
person requests a statement of reasons for the
decision, the day on which the statement of
reasons is given to the person or the person is
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informed under section 46(5) of that Act that
a statement of reasons will not be given.
Note: VCAT has power, on an application under sub-
section (5), to affirm the decision to give the negative
5 notice or set it aside and either give an assessment
notice or send the matter back to the Secretary for
re-consideration (see section 51 of the Victorian
Civil and Administrative Tribunal Act 1998).
__________________
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PART 3--EXEMPTIONS FROM WORKING WITH
CHILDREN CHECK
27. Volunteer whose child is participating or ordinarily
participates in the relevant activity
A parent engaging in work as a volunteer in
5
relation to an activity in which his or her child is
participating or ordinarily participates is exempt
from a working with children check in respect of
that activity.
10 Example 1
A parent who coaches a school football team in which his or
her child ordinarily plays is exempt from a working with
children check even if his or her child is not present on
particular days due to sickness or some other reason.
15 However, a parent who coaches a school football team
whose child plays football for another team in the same
school is not exempt from a working with children check.
Example 2
An athletics carnival is being held at a school. A parent of
20 one of the participating children carries out the task of
raking the sand in the long jump pit. That parent is exempt
from a working with children check even if his or her child
is not participating in the long jump competition.
28. Person working with closely related child
(1) A person engaging in child-related work where
25
each child with whom he or she is required to
have direct contact during the work is a child who
is closely related to him or her is exempt from a
working with children check in respect of that
work.
30
(2) For the purposes of sub-section (1), a person is
closely related to a child if the person is the
child's--
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(a) spouse (including domestic partner as
defined in the Crimes (Family Violence)
Act 1987);
(b) parent, step-parent, mother-in-law or father-
in-law;
5
(c) grandparent;
(d) uncle or aunt;
(e) brother or sister (including half-brother, half-
sister, step-brother, step-sister, brother-in-
law or sister-in-law)--
10
and includes, in the case of domestic partners, a
person who would be closely related to the child if
the domestic partners were married to each other.
29. Children
(1) A child is exempt from a working with children
15
check.
(2) An adult who has not attained the age of 20 years
and who is a student at an educational institution
is exempt from a working with children check in
respect of any work engaged in as a volunteer at
20
that institution or outside that institution under an
arrangement entered into by that institution.
30. Teachers
(1) A person who is registered under section 11 of the
Victorian Institute of Teaching Act 2001 as a
25
teacher is exempt from a working with children
check.
Note: Section 19 of the Victorian Institute of Teaching Act
2001 provides that a teacher whose registration is
30 suspended is deemed not to be registered for the period of
that suspension.
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(2) A person who engages in child-related work
(other than teaching in a school) and who relies on
an exemption under sub-section (1) in respect of
that work must notify--
(a) any person by whom he or she is engaged in
5
that child-related work; and
(b) any agency with which he or she is listed for
child-related work (other than teaching in a
school)--
in writing of the suspension or cancellation of the
10
person's registration under the Victorian Institute
of Teaching Act 2001 within 7 days after
receiving notice of the suspension or cancellation.
Penalty: Level 9 fine (60 penalty units
maximum).
15
Note 1: Section 48 of the Victorian Institute of Teaching Act
2001 provides that if a teacher's registration is suspended or
cancelled, the Victorian Institute of Teaching must notify
that teacher's employer of the suspension or cancellation.
20 Note 2: "Listed with an agency" is defined in section 3(2).
31. Police officers
(1) A person who is a member of the force within the
meaning of the Police Regulation Act 1958 and
who has taken and subscribed the oath referred to
in section 13(1) of that Act (other than a member
25
who is suspended from duty under that Act) is
exempt from a working with children check.
(2) A person referred to in sub-section (1) who
engages in child-related work (other than as a
member of the force) and who relies on an
30
exemption under sub-section (1) in respect of that
work must notify--
(a) any person by whom he or she is engaged in
that child-related work; and
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(b) any agency with which he or she is listed for
child-related work--
in writing of the suspension or dismissal of the
person as a member of the force under the Police
Regulation Act 1958 within 7 days after
5
receiving notice of the suspension or dismissal.
Penalty: Level 9 fine (60 penalty units
maximum).
Note: "Listed with an agency" is defined in section 3(2).
32. Visiting workers
10
A person who is not ordinarily resident in Victoria
is exempt from a working with children check in
respect of child-related work in which he or she
engages in Victoria if he or she does not ordinarily
engage in that work in Victoria.
15
Note: A registered sex offender within the meaning of
Part 5 of the Sex Offenders Registration Act 2004
is prohibited under that Act from engaging in child-
related employment as defined in that Part.
__________________
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s. 33
PART 4--OFFENCES CONNECTED WITH CHILD-RELATED
WORK
33. Engaging in child-related work without an
assessment notice
(1) A person is guilty of an offence if--
5
(a) he or she does not have a current assessment
notice; and
(b) he or she engages in child-related work,
knowing that it is child-related work; and
(c) he or she knows that he or she does not have
10
a current assessment notice or is reckless as
to whether or not he or she has one.
(2) In a proceeding for an offence against sub-
section (1), it is a defence to the charge for the
accused to prove that, at the time the offence is
15
alleged to have been committed, he or she--
(a) had applied for a working with children
check and the application had not been
finally decided or withdrawn and he or she--
(i) had not at any time been given a
20
negative notice or, having been given a
negative notice, had subsequently been
given an assessment notice; and
(ii) was not subject to reporting obligations
imposed by Part 3 of the Sex
25
Offenders Registration Act 2004 or
subject to an extended supervision
order under the Serious Sex Offenders
Monitoring Act 2005; or
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(b) was exempt from a working with children
check in respect of the work under Part 3 and
he or she--
(i) had not at any time been given a
negative notice or, having been given a
5
negative notice, had subsequently been
given an assessment notice; and
(ii) was not subject to reporting obligations
imposed by Part 3 of the Sex
Offenders Registration Act 2004 or
10
subject to an extended supervision
order under the Serious Sex Offenders
Monitoring Act 2005; or
(c) unless engaging in the work as a volunteer or
undertaking practical training--
15
(i) having applied for a working with
children check and been given a
negative notice, had notified his or her
employer of the giving of that notice;
and
20
(ii) his or her employer was in the process
of--
(A) transferring him or her to work
that was not child-related work; or
(B) terminating his or her employment
25
in accordance with the
requirements of the Workplace
Relations Act 1996 of the
Commonwealth.
(3) A person who is guilty of an offence against sub-
30
section (1) is liable to level 7 imprisonment
(2 years maximum) or a level 7 fine (240 penalty
units maximum) or both.
40
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Part 4--Offences Connected with Child-related Work
s. 34
34. Offence for holder of negative notice to apply for
child-related work
(1) A person who has at any time been given a
negative notice and does not have a current
assessment notice must not apply for, or engage
5
in, work that is child-related work.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine
(240 penalty units maximum) or both.
(2) In a proceeding for an offence against sub-
10
section (1), it is a defence to the charge for the
accused to prove that, at the time the offence is
alleged to have been committed, he or she did not
know that the work was child-related work.
(3) For the purposes of this section, the definition of
15
"child-related work" given by section 9 applies as
if the words "in circumstances where that contact
is not directly supervised by another person" did
not appear in sub-section (1) of that section.
35. Offence to engage in child-related work a person
20
who does not have an assessment notice
(1) A person is guilty of an offence if--
(a) the person engages, or continues to engage,
another person (the worker) in child-related
work, knowing that it is child-related work;
25
and
(b) the worker does not have a current
assessment notice; and
(c) the person engaging, or continuing to
engage, the worker knows that the worker
30
does not have a current assessment notice or
is reckless as to whether or not he or she has
one.
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Part 4--Offences Connected with Child-related Work
s. 35
(2) In a proceeding for an offence against sub-
section (1), it is a defence to the charge for the
accused to prove that, at the time the offence is
alleged to have been committed--
(a) the worker had applied for a working with
5
children check and the application had not
been finally decided or withdrawn; or
(b) the worker was exempt from a working with
children check in respect of the work under
Part 3; or
10
(c) having been notified that the worker (not
being a worker who was engaging in the
work as a volunteer or undertaking practical
training) had been given a negative notice,
the accused was in the process of--
15
(i) transferring him or her to work that was
not child-related work; or
(ii) terminating his or her employment in
accordance with the requirements of the
Workplace Relations Act 1996 of the
20
Commonwealth.
(3) In a proceeding for an offence against sub-
section (1), it is a defence to the charge for the
accused to prove that he or she directly engaged
the worker and the work was child-related work
25
with a child of whom the accused is a parent,
whether or not it also involved direct contact with
other children.
(4) A person who is guilty of an offence against sub-
section (1) is liable, in the case of a natural
30
person, to level 7 imprisonment (2 years
maximum) or a level 7 fine (240 penalty units
maximum) or both and, in the case of a body
corporate, to a fine not exceeding 1200 penalty
units.
35
42
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Part 4--Offences Connected with Child-related Work
s. 36
36. Offence for agency to offer the services of a person
who does not have an assessment notice
(1) An agency is guilty of an offence if--
(a) the agency, in the course of a business, offers
to another person the services of a person
5
(the worker) in child-related work, knowing
that it is child-related work; and
(b) the worker does not have a current
assessment notice; and
(c) the agency knows that the worker does not
10
have a current assessment notice or is
reckless as to whether or not he or she has
one.
(2) In a proceeding for an offence against sub-
section (1), it is a defence to the charge for the
15
accused to prove that, at the time the offence is
alleged to have been committed--
(a) the worker had applied for a working with
children check and the application had not
been finally decided or withdrawn; or
20
(b) the worker was exempt from a working with
children check in respect of the work under
Part 3.
(3) An agency that is guilty of an offence against
sub-section (1) is liable, in the case of a natural
25
person, to level 7 imprisonment (2 years
maximum) or a level 7 fine (240 penalty units
maximum) or both and, in the case of a body
corporate, to a fine not exceeding 1200 penalty
units.
30
43
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Part 4--Offences Connected with Child-related Work
s. 37
37. Using volunteer assessment notice for paid work
(1) A person is guilty of an offence if--
(a) he or she has a current assessment notice that
was given to him or her on an application
that did not specify an intention to engage in
5
child-related work for profit or gain; and
(b) he or she engages in child-related work for
profit or gain; and
(c) he or she knows that his or her current
assessment notice was given on an
10
application of a kind referred to in
paragraph (a); and
(d) he or she knows that, or is reckless as to
whether or not, the child-related work in
which he or she is engaging is being engaged
15
in for profit or gain.
(2) A person is guilty of an offence if--
(a) the person engages, or continues to engage,
another person (the worker) in child-related
work, knowing that it is child-related work;
20
and
(b) the person knows that the worker has a
current assessment notice that was given to
him or her on an application that did not
specify an intention to engage in child-
25
related work for profit or gain; and
(c) the person engaging, or continuing to
engage, the worker knows that, or is reckless
as to whether or not, the child-related work
in which the worker is engaging is being
30
engaged in for profit or gain.
44
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Part 4--Offences Connected with Child-related Work
s. 38
(3) A person who is guilty of an offence against
sub-section (1) or (2) is liable to a level 11 fine
(5 penalty units maximum).
Note: A person who has been given an assessment notice
5 on an application that did not specify an intention to
engage in child-related work for profit or gain may
apply under section 10 for an assessment notice that
may be used in respect of child-related work engaged
in for profit or gain.
38. Offence to use false or other person's assessment
10
notice
A person must not use in connection with his or
her work, or an application for work--
(a) a document purporting to be an assessment
notice knowing that the document is false
15
within the meaning of section 83A(6) of the
Crimes Act 1958; or
(b) a document purporting to be an assessment
notice given to him or her knowing that the
document is an assessment notice given to
20
another person.
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine
(240 penalty units maximum) or both.
39. False or misleading information
25
(1) A person must not in, or in relation to, an
application for the carrying out of a working with
children check or in connection with a
re-assessment under section 21 give information
that is false or misleading in a material particular.
30
Penalty: Level 7 imprisonment (2 years
maximum) or a level 7 fine
(240 penalty units maximum) or both.
45
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Part 4--Offences Connected with Child-related Work
s. 40
(2) In a proceeding for an offence against sub-
section (1) it is a defence to the charge for the
accused to prove that at the time at which the
offence is alleged to have been committed, the
accused believed on reasonable grounds--
5
(a) in the case of false information--that the
information was true; or
(b) in the case of misleading information--that
the information was not misleading.
40. Confidentiality of information
10
(1) A person must not give to any other person,
whether directly or indirectly, any information
acquired by the person--
(a) from, or in the carrying out of, a working
with children check; or
15
(b) under section 18, 20(1), 22, 23(5), 30(2)
or 31(2).
Penalty: Level 9 fine (60 penalty units
maximum).
(2) Sub-section (1) does not apply to the giving of
20
information--
(a) in good faith--
(i) for the purposes of this Act; or
(ii) for the purposes of a reference check
being carried out on an applicant for
25
work that is child-related work; or
(iii) for the purpose of making employment-
related decisions in respect of child-
related work; or
46
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Part 4--Offences Connected with Child-related Work
s. 40
(b) with the written authority of the person to
whom the information relates or, if the
person to whom the information relates is a
child or a person with impaired mental
functioning within the meaning of
5
Subdivision (8D) of Division 1 of Part I of
the Crimes Act 1958, with the written
authority of a person authorised to act on that
person's behalf; or
(c) to a court or tribunal in the course of legal
10
proceedings; or
(d) pursuant to an order of a court or tribunal; or
(e) to the extent reasonably required to enable
the investigation or the enforcement of a law
of this State or of any other State or of a
15
Territory or of the Commonwealth; or
(f) to an Australian legal practitioner for the
purpose of obtaining legal advice or
representation; or
(g) as required or authorised by or under any
20
other Act.
__________________
47
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Act No.
Part 5--Miscellaneous
s. 41
PART 5--MISCELLANEOUS
41. Duty on police to notify Secretary of certain matters
(1) The Chief Commissioner of Police must take all
reasonable steps to ensure that the Secretary is
notified as soon as practicable after the Chief
5
Commissioner becomes aware that a person to
whom an assessment notice has been given has
been charged with a relevant offence.
(2) The Chief Commissioner of Police must take all
reasonable steps to ensure that the Secretary is
10
notified as soon as practicable of how a charge of
a relevant offence against a person who has a
current assessment notice has been finally dealt
with.
42. Secretary may notify police of certain matters
15
Nothing in this Act prevents the Secretary, if he or
she suspects on reasonable grounds that a person
has committed an offence against Part 4 of this
Act or Part 5 of the Sex Offenders Registration
Act 2004, immediately notifying the Chief
20
Commissioner of Police of that suspicion.
43. Delegation
The Secretary, by instrument, may delegate to--
(a) any person or class of person employed
under Part 3 of the Public Administration
25
Act 2004 in the administration of this Act; or
(b) another prescribed person or body--
any of the Secretary's powers under this Act, other
than this power of delegation.
48
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Part 5--Miscellaneous
s. 44
44. Offences by bodies corporate
(1) In a proceeding against a body corporate for an
offence against a provision of this Act, it is a
defence to the charge for the body corporate to
prove that, at the time the offence is alleged to
5
have been committed, it had taken all reasonable
steps to have systems in place within the body
corporate to ensure compliance with the relevant
provision.
(2) If a body corporate contravenes any provision of
10
this Act, each person who is an officer of the body
corporate is to be taken to have contravened the
same provision if the person knew of, or
knowingly authorised or permitted, the
contravention.
15
(3) A person may be proceeded against and convicted
or found guilty under a provision in accordance
with sub-section (2) whether or not the body
corporate has been proceeded against or convicted
or found guilty under that provision.
20
(4) Nothing in sub-section (2) or (3) affects any
liability imposed on a body corporate for an
offence committed by the body corporate against
this Act.
(5) If, in a proceeding for an offence against this Act,
25
it is necessary to establish the state of mind of a
body corporate in relation to particular conduct, it
is sufficient to show that--
(a) the conduct was engaged in by an officer of
the body corporate within the scope of his or
30
her actual or apparent authority; and
(b) the officer had that state of mind.
49
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Act No.
Part 5--Miscellaneous
s. 45
45. Offences by unincorporated bodies,
partnerships etc.
(1) If this Act provides that a person, being an
unincorporated body or association or a
partnership, is guilty of an offence, that reference
5
to the person must--
(a) in the case of an unincorporated body or
association--be read as a reference to each
member of the committee of management of
the body or association who knew of, or
10
knowingly authorised or permitted, the
commission of the offence; and
(b) in the case of a partnership--be read as a
reference to each member of the partnership
who knew of, or knowingly authorised or
15
permitted, the commission of the offence.
(2) If, in a proceeding for an offence against this Act,
it is necessary to establish the state of mind of an
unincorporated body or association or a
partnership in relation to particular conduct, it is
20
sufficient to show that--
(a) the conduct was engaged in by an employee
or agent of the unincorporated body or
association or the partnership within the
scope of his or her actual or apparent
25
authority; and
(b) the employee or agent had that state of mind.
46. Giving of notices
If by or under this Act a notice, or a copy of a
notice, is required or permitted to be given by the
30
Secretary to a person, the notice may, unless the
contrary intention appears, be given to the
person--
(a) by delivering it personally to the person; or
50
551322B.I1-20/7/2005 BILL LA INTRODUCTION 20/7/2005
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Act No.
Part 5--Miscellaneous
s. 47
(b) by leaving it at the person's usual or last
known place of residence or business with a
person apparently over the age of 16 years
and apparently residing there or (in the case
of a place of business) apparently in charge
5
of, or employed at, that place; or
(c) by sending it by post addressed to the person
at the person's usual or last known place of
residence or business.
47. Evidentiary provisions
10
(1) A document purporting to be given by the
Secretary or a delegate of the Secretary certifying
as to--
(a) whether an application by a specified person
for a working with children check was
15
pending under Part 2 as at a specified date;
or
(b) whether an interim negative notice was given
to a specified person on a specified date; or
(c) whether a negative notice was given to a
20
specified person on a specified date; or
(d) whether an assessment notice was given to a
specified person on a specified date; or
(e) whether a copy of an assessment notice, an
interim negative notice or a negative notice
25
was given to a specified person on a
specified date; or
(f) any other matter that appears in, or that can
be determined from, the records kept by the
Secretary under this Act--
30
is admissible in evidence in any proceedings and,
in the absence of evidence to the contrary, is proof
of the matters stated in the document.
51
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Part 5--Miscellaneous
s. 48
(2) A document purporting to be given by the
Secretary or a delegate of the Secretary under sub-
section (1) must be presumed in any proceedings,
in the absence of evidence to the contrary, to have
been given by the Secretary or a person who was,
5
at that time, a delegate of the Secretary, as the
case requires.
(3) This section is in addition to, and does not affect
the operation of, the Evidence Act 1958.
48. Immunity
10
(1) The Secretary or an employee within the meaning
of the Public Administration Act 2004 is not
personally liable for anything done or omitted to
be done in good faith--
(a) in the exercise of a power or the carrying out
15
of a function under this Act or the
regulations; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power or
the carrying out of a function under this Act
20
or the regulations.
(2) Any liability resulting from an act or omission
that, but for sub-section (1), would attach to the
Secretary or an employee within the meaning of
the Public Administration Act 2004 attaches
25
instead to the State.
49. Regulations
(1) The Governor in Council may make regulations
for or with respect to any matter or thing required
or permitted by this Act to be prescribed or
30
necessary to be prescribed to give effect to this
Act.
52
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Act No.
Part 5--Miscellaneous
s. 49
(2) A power conferred by this Act to make
regulations may be exercised--
(a) either in relation to all cases to which the
power extends, or in relation to all those
cases subject to specified exceptions, or in
5
relation to any specified case or class of
case; and
(b) so as to make, as respects the cases in
relation to which the power is exercised--
(i) the same provision for all cases in
10
relation to which the power is
exercised, or different provisions for
different cases or classes of case, or
different provisions for the same case
or class of case for different purposes;
15
or
(ii) any such provision either
unconditionally or subject to any
specified condition.
(3) Regulations made under this Act may be made--
20
(a) so as to apply at all times or at a specified
time; and
(b) so as to require a matter affected by the
regulations to be--
(i) in accordance with a specified standard
25
or specified requirement; or
(ii) approved by or to the satisfaction of a
specified person or a specified class of
person; or
(iii) as specified in both sub-paragraphs (i)
30
and (ii); and
53
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Act No.
Part 5--Miscellaneous
s. 49
(c) so as to apply, adopt or incorporate any
matter contained in any document published
by any person whether--
(i) wholly or partially or as amended by
the regulations; or
5
(ii) as published at the time the regulations
are made or at any time before then;
and
(d) so as to confer a discretionary authority or
impose a duty on a specified person or a
10
specified class of person; and
(e) so as to provide in a specified case or class
of case for the exemption of persons or
things or a class of persons or things from
any of the provisions of the regulations,
15
whether unconditionally or on specified
conditions and either wholly or to such an
extent as is specified; and
(f) so as to impose a penalty not exceeding
20 penalty units for a contravention of the
20
regulations.
(4) A power conferred by this Act to make
regulations providing for the imposition of fees
may be exercised by providing for all or any of
the following matters--
25
(a) specific fees;
(b) maximum or minimum fees;
(c) maximum and minimum fees;
(d) the payment of fees either generally or under
specified conditions or in specified
30
circumstances;
(e) the reduction, waiver or refund, in whole or
in part, of the fees.
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Part 5--Miscellaneous
s. 49
(5) If under sub-section (4)(e) regulations provide for
a reduction, waiver or refund, in whole or in part,
of a fee, the reduction, waiver or refund may be
expressed to apply either generally or
specifically--
5
(a) in respect of certain checks or classes of
checks; or
(b) when an event happens; or
(c) in respect of certain persons or classes of
persons; or
10
(d) in respect of any combination of such
checks, events or persons--
and may be expressed to apply subject to specified
conditions or in the discretion of any specified
person or body.
15
__________________
55
551322B.I1-20/7/2005 BILL LA INTRODUCTION 20/7/2005
Working with Children Act 2005
Act No.
Part 6--Amendment of Certain Acts
s. 50
PART 6--AMENDMENT OF CERTAIN ACTS
See: 50. Amendment of Sentencing Act 1991
Act No.
49/1991.
(1) In section 5(2BC) of the Sentencing Act 1991,
Reprint No. 8
after "2004" insert "or the Working with
as at
1 July 2005
Children Act 2005".
5 and
amending
(2) In clause 1 of Schedule 1 to the Sentencing Act
Act Nos
1991--
53/2003,
18/2005 and
(a) for paragraph (a)(ii) substitute--
34/2005.
LawToday:
www.dms. "(ii) section 39 (indecent assault);";
dpc.vic.
gov.au (b) after paragraph (a)(viii) insert--
10
"(viiia) section 48(1) (sexual penetration of a 16 or
17 year old child);
(viiib) section 49(1) (indecent act with 16 year old
child);";
(c) after paragraph (a)(xii) insert--
15
"(xiia) section 54 (occupier etc. permitting unlawful
sexual penetration);";
(d) after paragraph (a)(xvid) insert--
"(xvie) section 59(1) (bestiality);
20 (xvif) section 60 (soliciting acts of sexual penetration
or indecent acts);
(xvig) section 68(1) (production of child
pornography);
(xvih) section 69 (procurement of minor for child
25 pornography);
(xvii) section 70(1) (possession of child
pornography);
(xvij) section 70AC (sexual performance involving a
minor);";
56
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Act No.
Part 6--Amendment of Certain Acts
s. 50
(e) after paragraph (d) insert--
'(da) an offence against section 57A of the
Classification (Publications, Films and
Computer Games) (Enforcement) Act 1995
5 (publication or transmission of child
pornography);
(db) an offence against any of the following sections
of the Prostitution Control Act 1994:
(i) section 5(1) (causing or inducing a child
10 to take part in prostitution);
(ii) section 6(1) (obtaining payment for
sexual services provided by a child);
(iii) section 7(1) (agreement for provision of
sexual services by a child);
15 (iv) section 11(1) (allowing child to take part
in prostitution);
(dc) an offence against any of the following sections
of the Crimes Act 1914 of the Commonwealth:
(i) section 50BA(1) (sexual intercourse with
20 child under 16);
(ii) section 50BB(1) (inducing child under 16
to engage in sexual intercourse);
(iii) section 50BC(1) (sexual conduct
involving child under 16);
25 (iv) section 50BD(1) (inducing child under
16 to be involved in sexual conduct);
(v) section 50DA(1) (benefiting from
offence against Part IIIA);
(vi) section 50DB(1) (encouraging offences
30 against Part IIIA);
(dd) an aggravated offence against any of the
following sections of the Criminal Code of the
Commonwealth:
(i) section 270.6 (sexual servitude offences);
57
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Act No.
Part 6--Amendment of Certain Acts
s. 50
(ii) section 270.7 (deceptive recruiting for
sexual services);
Note: The Criminal Code of the
Commonwealth is contained in
5 the Schedule to the Criminal Code
Act 1995 of the Commonwealth.
(de) an offence against section 233BAB(5) or
233BAB(6) of the Customs Act 1901 of the
Commonwealth (special offence relating to
10 tier 2 goods) where the goods are goods
covered by section 233BAB(1)(h) of that Act;
(df) an offence against any of the following sections
of the Criminal Code of the Commonwealth:
(i) section 271.4 (trafficking in children) or
15 section 271.7 (domestic trafficking in
children) in circumstances where the
purpose of the exploitation is to provide
sexual services within the meaning of
that section;
20 (ii) section 474.19(1) (using a carriage
service for child pornography material);
(iii) section 474.20(1) (possessing,
controlling, producing, supplying or
obtaining child pornography material for
25 use through a carriage service);
(iv) section 474.22(1) (using a carriage
service for child abuse material);
(v) section 474.23(1) (possessing,
controlling, producing, supplying or
30 obtaining child abuse material through a
carriage service);
(vi) section 474.26 (using a carriage service
to procure persons under 16 years of
age);
35 (vii) section 474.27 (using a carriage service
to "groom" persons under 16 years of
age);';
(f) in paragraph (f), for "(e)." substitute "(e);";
58
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Act No.
Part 6--Amendment of Certain Acts
s. 50
(g) after paragraph (f) insert--
"(g) any other offence, whether committed in
Victoria or elsewhere, the necessary elements
of which consist of elements that constitute any
5 of the offences referred to in paragraphs (a)
to (f).".
(3) In clause 2 of Schedule 1 to the Sentencing Act
1991--
(a) in paragraph (f), for "(e)." substitute "(e);";
(b) after paragraph (f) insert--
10
"(g) any other offence, whether committed in
Victoria or elsewhere, the necessary elements
of which consist of elements that constitute any
of the offences referred to in paragraphs (a)
15 to (f).".
(4) In clause 3 of Schedule 1 to the Sentencing Act
1991--
(a) in paragraph (d), for "(c)." substitute "(c);";
(b) after paragraph (d) insert--
20 "(e) any other offence, whether committed in
Victoria or elsewhere, the necessary elements
of which consist of elements that constitute any
of the offences referred to in paragraphs (a)
to (d).".
(5) After clause 4(b) of Schedule 1 to the Sentencing
25
Act 1991 insert--
"(c) any other offence, whether committed in Victoria or
elsewhere, the necessary elements of which consist of
elements that constitute any of the offences referred to
30 in paragraphs (a) to (b).".
59
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Act No.
Part 6--Amendment of Certain Acts
s. 51
51. Amendment of Sex Offenders Registration Act 2004
See:
Act No.
(1) In section 67(1) of the Sex Offenders
56/2004
and Registration Act 2004, in the definition of "child-
amending
related employment", for paragraphs (a) to (o)
Act Nos
79/2004, substitute--
5 18/2005 and
34/2005.
"(a) child protection services;
LawToday:
www.dms.
(b) child care services mentioned in section
dpc.vic.
194(1) of the A New Tax System (Family
gov.au
Assistance) (Administration) Act 1999 of the
Commonwealth;
10
(c) children's services within the meaning of the
Children's Services Act 1996;
(d) educational institutions;
(e) community services, remand centres, youth
residential centres, youth supervision units or
15
youth training centres, within the meaning of
the Children and Young Persons Act 1989
or probation services under that Act;
(f) refuges or other residential facilities used by
children;
20
(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
25
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;
30
(j) baby sitting or child minding services
arranged by a commercial agency;
(k) fostering children;
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Part 6--Amendment of Certain Acts
s. 51
(l) providing, on a publicly-funded or
commercial basis, a transport service
specifically for children;
(m) coaching or private tuition services of any
kind for children;
5
(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;
10
(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
15
merely incidentally to or in support of other
business activities, an entertainment or party
service specifically for children;
(r) providing, on a commercial basis and not
merely incidentally to or in support of other
20
business activities, gym or play facilities
specifically for children;
Example
The provision of play facilities for children by a fast-
25 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;
30
(t) talent or beauty competitions held for
children on a commercial basis and not
merely incidentally to or in support of other
business activities;".
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s. 51
(2) In section 67(1) of the Sex Offenders
Registration Act 2004, for the definition of
"educational institutions for children"
substitute--
' "educational institution" means--
5
(a) any State school established under
section 21 of the Education Act 1958
or any school registered under Part III
of that Act; or
(b) any of the following--
10
(i) a TAFE college within the
meaning of the Vocational
Education and Training Act
1990;
(ii) a university with a TAFE division
15
within the meaning of the
Vocational Education and
Training Act 1990 to the extent
that the university provides
technical or further education;
20
(iii) a provider of adult, community
and further education, within the
meaning of the Adult,
Community and Further
Education Act 1991, that is
25
eligible for funding under section
6(1)(b) of that Act;
(iv) an adult education institution
within the meaning of the Adult,
Community and Further
30
Education Act 1991;
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Part 6--Amendment of Certain Acts
s. 51
(v) an organisation on the Register of
Education and Training
Organisations within the meaning
of the Victorian Qualifications
Authority Act 2000--
5
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
10
Secondary Certificate of Education that
is recognised by the AQF within the
meaning of the Victorian
Qualifications Authority Act 2000; or
(c) any other institution that provides a
15
program of study or training primarily
for, or directed at, children--
but does not include--
(d) except to the extent provided by
paragraph (b), a university specified in
20
Schedule 1 to the Tertiary Education
Act 1993; or
(e) except to the extent provided by
paragraph (b), a TAFE college within
the meaning of the Vocational
25
Education and Training Act 1990 or
an adult education institution within the
meaning of the Adult, Community
and Further Education Act 1991--
even if that university, college or institution
30
has a student under 18 years of age;'.
(3) For the penalty at the foot of section 68(1) of the
Sex Offenders Registration Act 2004
substitute--
"Penalty: 240 penalty units or imprisonment for
35
2 years.".
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Part 6--Amendment of Certain Acts
s. 52
(4) In section 70(2)(e) of the Sex Offenders
Registration Act 2004, after "relates" insert
"or, if the person to whom the information relates
is a child or a person with impaired mental
functioning within the meaning of
5
Subdivision (8D) of Division 1 of Part I of the
Crimes Act 1958, with the written authority of a
person authorised to act on that person's behalf".
(5) After item 28 of Schedule 2 to the Sex Offenders
Registration Act 2004 insert--
10
"28AA. An offence against section 271.4 (trafficking in
children) or section 271.7 (domestic trafficking in
children) of the Criminal Code of the Commonwealth
in circumstances where the purpose of the
15 exploitation is to provide sexual services within the
meaning of that section.".
See: 52. Amendment of Victorian Civil and Administrative
Act No.
Tribunal Act 1998
53/1998.
Reprint No. 3
After Part 22 of Schedule 1 to the Victorian Civil
as at
1 July 2003
and Administrative Tribunal Act 1998 insert--
20 and
amending
"PART 23--WORKING WITH CHILDREN ACT 2005
Act Nos
18/2003,
30/2003,
101. Constitution of Tribunal for Working with
75/2003,
Children matters
10/2004,
12/2004,
The Tribunal is to be constituted for the
53/2004,
25 purposes of a proceeding under the Working
99/2004
108/2004, with Children Act 2005 by a presidential
16/2005 and
member sitting alone.
18/2005.
LawToday:
102. Review of category 2 application
www.dms.
dpc.vic. If the proceeding relates to the giving of a
gov.au.
30 negative notice on a category 2 application
within the meaning of the Working with
Children Act 2005 the Tribunal must have
regard to--
(a) any matter to which the Secretary may
35 have regard under section 13(2) of that
Act; and
64
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Part 6--Amendment of Certain Acts
s. 53
(b) whether, in all the circumstances, it is in
the public interest to give an assessment
notice.
103. Review of category 3 application
5 If the proceeding relates to the giving of a
negative notice on a category 3 application
within the meaning of the Working with
Children Act 2005 the Tribunal must have
regard to--
10 (a) any matter to which the Secretary may
have regard under section 14(3) of that
Act; and
(b) whether, in all the circumstances, it is in
the public interest to give an assessment
15 notice.".
See:
53. Amendment of Victorian Institute of Teaching Act No.
Act 2001 96/2001
and
(1) For section 27(2B) of the Victorian Institute of amending
Act Nos
Teaching Act 2001 substitute-- 23/2002,
83/2003,
"(2B) The Chief Commissioner of Police must
20 83/2004 and
immediately notify the Institute if the Chief 108/2004.
LawToday:
Commissioner becomes aware that a www.dms.
registered teacher has been charged with, or dpc.vic.
gov.au
committed for trial for, or convicted or found
guilty of--
25
(a) a sexual offence; or
(b) an offence specified in clause 2 of
Schedule 1 to the Sentencing Act
1991; or
(c) an offence specified in clause 4 of
30
Schedule 1 to the Sentencing Act
1991; or
(d) an offence against section 71AB or 71B
of the Drugs, Poisons and Controlled
Substances Act 1981.".
35
65
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Part 6--Amendment of Certain Acts
s. 53
(2) After section 48(1)(f) of the Victorian Institute
of Teaching Act 2001 insert--
"(fa) to the Secretary within the meaning of the
Working with Children Act 2005; and".
(3) In section 48(3) of the Victorian Institute of
5
Teaching Act 2001, after "(f)" insert ", (fa)".
66
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Endnotes
ENDNOTES
By Authority. Government Printer for the State of Victoria.
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Act No.
INDEX
Subject Clause
Act
amendments to other Acts 50-53
commencement 2
Crown bound by 7
purpose 1
Agency (def.) 3
Assessment notices
changes in circumstances of holders 20-21
copies, notices for employers 18, 22
definition 3
duration, expiry 19
evidence 47
false notices, use of other persons' notices 38
issue 14, 17
re-assessment of eligibility to hold 21
refusal to issue 12-13
revocation 23
surrender 23-24
See also Child-related work;
Negative assessment notices
Checks See Working with children checks
41
Chief Commissioner of Police
Children
definition of child 3
direct contact with (def.) 3
exempted from working with children checks 29
parents, close relatives of 27-28
Child-related work
definition 3, 9
engaged in without assessment notice 33
engaging persons without assessment notice in 35
holders of negative notices must not apply for 34
list of services, bodies, places, activities considered
to be 9
offering services of persons without assessment
notice 36
persons considered to be engaged in 9
volunteer assessment notices not to be used for
paid work 37
3-6, 9
Definitions
Disciplinary proceedings
adverse findings against applicants for checks 14
adverse findings against holders of assessment
notices 20-21
13, 20-21
Drug offenders
Educational institutions (def.) 3
47
Evidence
10, 49
Fees
Guilty findings See Offences
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Subject Clause
Negative notices
copies for employers 18
definition 3
evidence 47
holders must not apply for child-related work 34
holders must not re-apply for checks for 5 years 25
holders must notify employers, agencies 22
interim notices 3, 16, 22
issue 14, 17, 23
notices, submissions regarding 16
review 26
Offences
against Act committed by applicants for checks 14
by bodies corporate 44
by unincorporated bodies, partnerships 45
charges, findings of guilt for relevant offences
applicants for checks 12-13
charged with (def.) 5
charges pending (def.) 6
findings of guilt (def.) 4
holders of assessment notices 20-21
relevant offences (def.) 3
regarding
assessment notices, assessment notice holders 20, 22, 23, 37, 38
child-related work 33-40
confidential information 40
false, misleading information 39
3, 27
Parents
31
Police officers
10-11
Police record checks
12, 17
Registrable offenders
49
Regulations
Relevant offences See Offences
26
Review
Secretary
definition 3
delegation 43
documents certified by as evidence 47
immunity 48
powers regarding assessment notices, eligibility 21-23
powers regarding working with children checks 10-18, 42
service of notices 46
12-13, 17, 20-21
Sexual offenders
30
Teachers
26
Victorian Civil and Administrative Tribunal
13, 20-21
Violent offenders
32
Visiting workers
9, 27, 29, 37
Volunteers
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Act No.
Subject Clause
Working with children checks
applications
category 1 applications 12, 17
category 2 applications 13
category 3 applications 14
consideration 11
enquiries made in relation to 10-11
evidence 47
false, misleading information 39
fees 10, 49
further information required 11, 15
making of 10, 19, 21
outcome 16-17
restrictions on right to re-apply 25
withdrawal 15
confidentiality of information gained 40
definition 3
exemptions 27-32
police may be notified of 42
purpose of Part 2 8
See also Assessment notices;
Negative assessment notices
70
551322B.I1-20/7/2005 BILL LA INTRODUCTION 20/7/2005
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