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Working with Children Bill
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
PART 1--PRELIMINARY
Clause 1 states the main purpose of the Bill. The clause also states that
the Bill amends the Sentencing Act 1991 and makes minor
amendments to the Sex Offenders Registration Act 2004, the
Victorian Civil and Administrative Tribunal Act 1998 and
the Victorian Institute of Teaching Act 2001 in ways that
complement the operation of the Bill.
Clause 2 provides that the Bill comes into operation on a day or days to
be proclaimed and that any provision that has not commenced
by 1 July 2006 commences operation on that day.
The commencement of working with children checks will be
set by Orders in Council made under clause 9(5) of the Bill,
which may be made up until 1 July 2011.
Clause 3 defines certain terms for the purposes of the Bill.
These include--
· "agency" is defined to capture those organisations
whose business it is to provide individual workers to
people who are looking for that type of worker, such
as an agency that provides babysitters or nannies.
Clause 3(2) sets out when a person is considered to be
listed with an agency.
· "direct contact" is defined to capture personal
contact, as opposed to contact via email or telephone.
"Eyeshot" is intended to mean within the range of vision
and is qualified by the need to be physically within
eyeshot--which excludes remote surveillance.
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551322 BILL LA INTRODUCTION 20/7/2005
· "educational institution" is defined to capture all
schools for children, as well as all other institutions
where secondary subjects are taught to children.
It excludes higher education institutions, such as
universities, despite the fact that these institutions will
often have students who are under 18--except to the
extent that these institutions teach secondary school
subjects to children.
Clause 3(3) provides that for the purposes of the Bill, a person does not
cease to be a volunteer merely because his or her out-of-pocket
expenses are reimbursed.
Clause 4(1) provides that for the purposes of the Bill, a finding of guilt is: a
finding of guilt made by a court, a plea of guilty, an admission
made under and for the purposes of section 100 of the
Sentencing Act 1991 (or under an equivalent provision of
another jurisdiction) or a finding under section 17(1)(b) or
17(1)(c) of the Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997 (or a finding under an equivalent provision
of another jurisdiction).
Clause 4(2) provides that for the purposes of the Bill, a reference to a
finding of guilt does not include a finding of guilt that is
subsequently quashed or set aside.
Clause 5 defines the term "charged with an offence" for the purposes of
the Bill.
Clause 6 provides that for the purposes of the Bill, a charge is pending
until it is dealt with to finality in any of the ways referred to in
sub-section (1). Sub-section (2) provides that 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 the Bill. Sub-section (3) makes it clear that a
reference to the withdrawal of a charge includes the entering of
a nolle prosequi.
Clause 7 provides that the Bill binds the Crown.
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PART 2--WORKING WITH CHILDREN CHECK
Clause 8 explains that the purpose of Part 2 of the Bill is to set out a
process for assisting to determine whether a person is suitable
to work with children. The clause also makes clear that the
Bill does not take away from or remove the need to comply
with any other statutory requirement with respect to child-
related work.
Clause 9 defines child-related work.
Clause 9(1) explains what is meant by child-related work. Child-related
work is defined broadly and captures paid employment, work
as part of a religious vocation, work in connection with a
corporation, unincorporated body or a partnership and
volunteering.
For the purposes of the Bill, child-related work also extends to
practical training (other than work experience arrangements
under Part IVA of the Education Act 1958).
The clause provides that volunteering includes community
work under various sentencing orders. Volunteering bears its
ordinary meaning, but clause 9(1)(c) emphasises that
volunteering is not simply doing things for friends and family
for free.
All forms of child-related work are qualified by the
requirement that they usually involve, or are likely to usually
involve, regular direct contact with a child. Direct contact is
defined in clause 3(1). This excludes people whose work is not
specifically related to children, but who may come into contact
with children from time to time, or unexpectedly. The meaning
of child-related work is further qualified by the requirement
that the contact with children not be directly supervised by
another person.
Clause 9(1) also states that work will not become child-related
work for the purposes of the Bill until a relevant date or 1 July
2011 (whichever is the earlier date). This is the mechanism
that will allow the working with children check to be rolled out
over five years.
Clause 9(2) Supervision bears its ordinary meaning but clause 9(2) explains
that supervision requires immediate and personal supervision
and does not require that the person be physically watched at
all times. Supervisors themselves will need to be checked,
unless they are also directly supervised.
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Clause 9(3) lists the services, bodies, places or activities that a person must
work in if their work is to be considered to be child-related
work. Only work done in relation to the items in this list can
be child-related work.
Clause 9(4), 9(5) and 9(6) set out the meaning of "relevant date" referred to
in clause 9(1). The relevant date for each of the categories of
child-related work listed in clause 9(3) will be fixed by Order
in Council published in the Government Gazette and the check
will become operational for that category on the date specified
in the Order. Clause 9(6) provides that a category of child-
related work can be split up so that different sub-sectors of that
category can fixed separately.
Clause 9(7) deems a person employed in the administration of the Bill to be
engaging in child-related work. This will ensure that such
persons undergo a working with children check.
Clause 9(8) further clarifies the meaning of child-related work by
explaining that simply engaging in an activity with a child on
the same basis as the child is not child-related work.
Clause 10 sets out the requirements for an application for a working with
children check.
Clause 10(3) explains that the application must authorise the conduct of a
police record check, and the making of enquiries to a relevant
prescribed body. It is intended that professional disciplinary
bodies, such as the Victorian Institute of Teaching will be
prescribed as relevant prescribed bodies so that information
relating to certain disciplinary matters can be passed on to the
Secretary.
Clause 11(1) sets out what the Secretary must do in considering an
application. Paragraph 11(1)(d) allows the Secretary to ask for
further information from an applicant. This will enable the
Secretary to ask for any further details that may be necessary to
process the application, such as further information to establish
the applicant's identity.
Clause 11(2) allows for other types of checks to be recognised by the Bill.
If such a check is prescribed, then a further police check will
not necessarily be required under the Bill.
Clause 11(3) ensures that the results of recognised checks can be passed on
to the Secretary, without a breach of any duty of
confidentiality.
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Clause 12 sets out what a category 1 application is. The clause provides
that a person who--
· is on the Sex Offender Register within the meaning of
the Sex Offenders Registration Act 2004; or
· is subject to an extended supervision order under the
Serious Sex Offenders Monitoring Act 2005; or
· as an adult, has been convicted or found guilty of an
offence specified in clause 1 of Schedule 1 to the
Sentencing Act 1991 (sexual offences) against a child
or who has been convicted or found guilty of child
pornography offence--
must be refused an assessment notice. Clause 26 gives VCAT a
limited power to grant an assessment notice to those who are in
the third class of category 1 applications.
Clause 13(1) sets out what a category 2 application is. These are
applications from persons who have been convicted or found
guilty of--
· an offence specified in clause 1 of Schedule 1 to the
Sentencing Act 1991 (sexual offences) other than those
that fall into Category 1; or
· an offence specified in clause 2 of Schedule 1 to the
Sentencing Act 1991 (violent offences); or
· an offence specified in clause 4 of Schedule 1 to the
Sentencing Act 1991 (drug offences); or
· an offence against section 71AB (trafficking in a drug
of dependence to a child) or section 71B (supply of a
drug of dependence to a child) of the Drugs, Poisons
and Controlled Substances Act 1981; or
· an offence against section 46 or 47 of the Sex Offender
Registration Act 2004 or against Part 5 of that Act
(other than section 70) or against the Serious Sex
Offender Monitoring Act 2005 (other than section
42(3); or
· an offence 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
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exploitation is to provide sexual services within the
meaning of that section.
Category 2 applications also encompass any person who has a
pending charge for an offence that is listed in either Category 1
or Category 2 ("pending charge" is defined in clause 6).
Clause 13(2) establishes the presumption that an application in this category
will be refused unless the Secretary is satisfied that the giving
of an assessment notice would not pose an unjustifiable risk to
the safety of children, having regard to the matters set out in
paragraphs (a) to (j).
Clause 14 sets out what a category 3 application is. This is an application
from a person who has been subject to a finding of a prescribed
kind made by a prescribed body or who has been subject to a
charge against Part 4 of the Bill.
The intention is to prescribe disciplinary tribunals such as the
Medical Practitioners Board of Victoria to be prescribed bodies
and the most serious findings that those tribunals can make
(such as a cancellation of a practitioner's registration) to be
prescribed findings, so that these matters can be taken into
account by the Secretary.
Part 4 of the Bill contains offences relating to failing to comply
with the Act. However, the less serious offences of using a
volunteer assessment notice for paid work and of breaching the
confidentiality requirements of the Bill are excluded from the
operation of this clause.
Clause 14(2) establishes the presumption that in this category the Secretary
will grant the application. The Secretary may still refuse an
application in this category, but only if he or she thinks that
this is the appropriate result. This discretion must be exercised
having regard to the criteria set out in clause 14(3).
Clause 15(1) allows an applicant to withdraw his or her application at any
time before the Secretary determines the application or before
the Secretary issues an interim negative notice. An applicant
may choose to withdraw the application rather than answer a
request for further information under clause 11(1)(d) from the
Secretary.
Clause 15(2) if the applicant does not formally withdraw his or her
application but fails to answer a request for further information
within the time allowed, the Secretary must treat the
application as having been withdrawn.
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Clause 15(3) the offences in Part 4 of the Bill are structured so that a person
may work without an assessment notice if they have applied for
an assessment notice and that application is still being assessed.
For this reason, if an application is withdrawn or treated as
withdrawn, the Secretary must notify any place where the
person is working, or is listed as being available to work.
The Secretary will not always know if a person is working, or
where they are working, and so the duty to notify will only
arise if the Secretary is aware of these things.
Clause 16(1) if the Secretary intends to issue a negative notice, before
making a final decision, he or she must give the applicant an
opportunity to make a submission. The applicant may want to
argue, for example, that their past convictions are from so long
ago that they are now irrelevant. From the time that a notice
under this clause is issued until the application is finally
determined, the applicant is considered to have an interim
negative notice.
If the application is a category 1 application, the Secretary has
no discretion. The applicant may still, however, want to argue
that there has been a mistake with their identity or criminal
record and that they do not fall within category 1.
Clause 16(2) requires the Secretary to consider any submission made by the
applicant before he or she makes a final decision on the
application.
Clause 16(3) states that if the applicant does not respond to the request for a
submission within the time allowed, then the Secretary must
proceed to issue a negative notice.
Clause 16(4) ensures that if an applicant chooses to make a submission to
the Secretary, then the information in that submission is not
admissible against the applicant in a criminal proceeding or
other proceeding for the imposition of a penalty. This is
particularly important in cases where the Secretary invites the
applicant to make submissions on the basis of a charge that is
pending against the applicant. If the applicant chooses to make
a submission that, for example, includes admissions in relation
to the charge, nothing in that submission may be used against
the applicant in the trial or hearing of that charge.
This rule does not apply if the submission is relevant to
proceedings relating to an offence against the Bill or other
proceedings based on the falsity or misleading nature of the
material in the submission.
7
Clause 17(1) states that the Secretary must grant an assessment notice to all
applications that fall outside categories 1, 2 and 3. People with
no relevant criminal record or relevant disciplinary findings
will receive an assessment notice. Applications that fall within
categories 2 or 3 and result in the Secretary using his or her
discretion in favour of the applicant, will also result in an
assessment notice.
Clause 17(3) states that, conversely, the Secretary must give a negative
notice to all category 1 applicants, and to all applicants that do
not otherwise pass a working with children check.
Clause 17(4) states that when a negative notice is issued, it must be
accompanied by a written notice. This notice will give the
reasons for the decision and information about the applicant's
right to apply to VCAT and how such an application can be
made.
Clause 18 the offences in Part 4 of the Bill are structured so that, once a
person has applied for an assessment notice, he or she may
work while that application is still being assessed. When a
negative notice is issued, the person's right to work will be
revoked. To assist workplaces and organisations to take the
appropriate steps if a person receives a negative notice, the
Secretary must inform any place where the person is working,
or is listed as being available to work. The Secretary will not
always know if a person is working, or where they are
working, and so the duty to notify will only arise if the
Secretary is aware of these things.
Clause 19(1) provides that an assessment notice is valid for 5 years but can
be either revoked or surrendered before the 5 years are up.
Clause 19(2) allows the holder of an assessment notice to apply for a new
notice any time within 6 months before or 3 months after the
expiry date of that assessment notice.
Clause 19(3) provides that an assessment notice will still be considered valid
for 3 months after it expires. This will give holders of
assessment notices 3 months grace to apply for a new notice,
after the old notice expires. Once these three months have
passed, the person will be considered to no longer hold a valid
assessment notice.
Clause 20 creates part of the mechanism that will allow an assessment
notice to be reconsidered and possibly revoked if and when the
holder's circumstances change.
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Clause 20(1) requires the holder of an assessment notice, or a person who
has applied for an assessment notice and is waiting on the
outcome, to notify the Secretary, any person who has engaged
him or her in child-related work or any agency with whom he
or she is listed of any relevant change to their circumstances.
Clause 20(2) defines a "relevant change" to be--
· a charge of a "relevant offence" (as defined in clause 3).
This encompasses all the offences that place an
application within categories 1, 2 or 3;
· a conviction, finding of guilt, or other final disposition
of a relevant charge; or
· registration on the Sex Offender Register within the
meaning of the Sex Offenders Registration Act 2004;
or
· the making of an extended supervision order under the
Serious Sex Offenders Monitoring Act 2005; or
· the making of a relevant finding (as under clause
14(1)(a)).
Clause 20(3) explains that if a person has already notified the Secretary of a
new charge against them and this notification did not result in
the revocation of their assessment notice, then there is no
requirement to again notify the Secretary of an acquittal on that
charge.
Clause 21(1) sets out when the Secretary must re-assess a person's
assessment notice. This must occur when the Secretary is
notified by the holder of an assessment notice of a relevant
change in circumstances under clause 20, by a relevant body
(such as a prescribed disciplinary tribunal) of a relevant finding
or by the Chief Commissioner of Police of a charge of a
relevant offence or the result of that charge. The details of the
requirement placed on the Chief Commissioner of Police are in
clause 41.
Clause 21(2) mirrors clause 20(3) and explains that if person notifies the
Secretary of a new charge against them and this notification did
not result in the revocation of their assessment notice, then the
Secretary need not again reassess the person if the Secretary is
notified that the person has been acquitted of the charge.
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Clause 21(3) allows the Secretary to do anything on a reassessment that he
or she has the power to do under clause 11, (such as make
enquiries of the DPP). However, the Secretary is not required
to consider any information other than whatever information
has led to the need for a reassessment. He or she is not
required, for example, to request a new full police record check
in every case of a reassessment.
Clause 21(4) if an assessment notice has 12 months or less to run when a
reassessment is required the Secretary has the power to invite
an applicant to simply make a fresh application for an
assessment notice under clause 10. If the holder of the
assessment notice opts to do this, the Secretary will undertake a
full investigation under clause 11. If the reassessment results
in the re-issue of an assessment notice, then it will be valid for
5 years from that date. This will avoid a person who undergoes
a reassessment when, for example, their notice is only valid for
another 8 months and who retains that notice, having to make a
fresh application for the re-issue of their assessment notice
when the notice expires.
Clause 21(5) applies clauses 16 to 18 and 26 to a reassessment. This will
ensure that a reassessment is conducted in the same way as the
assessment of a fresh application.
Clause 21(6) part 4 of the Bill contains significant criminal offences.
These include engaging in child-related work without an
assessment notice and engaging a person in child-related work
where that person does not have an assessment notice. So that
a person may continue to work while they are be re-assessed,
clause 21(6) ensures that a person is regarded as still having an
assessment notice if the person has an interim negative notice,
his or her assessment notice has not been revoked following the
reassessment or the person has not surrendered their
assessment notice.
Clause 22 requires a person who receives a negative notice or an interim
negative notice to inform any person by whom he or she is
engaged in child-related work, or any agency where they are
listed as being available to perform child-related work. It will
be an offence to fail to make such a notification. The penalty is
a fine of a maximum of 60 penalty units.
Clause 23(1) allows the Secretary to revoke an assessment notice following
a reassessment. Under clause 23(2), revocation will result in
the issue of a negative notice.
10
Clause 23(3) permits the Secretary to require a former holder of an
assessment notice to return the notice itself within a certain
time. This applies whether the notice has been revoked by
the Secretary, or if the former holder of the notice has failed
to renew it within 3 months after its expiry, as detailed in
clause 19.
Clause 23(4) creates an offence of failing to surrender a document within the
time set by the Secretary under clause 23(3). The penalty is a
fine of a maximum 60 penalty units.
Clause 23(5) if an assessment notice expires because of the passage of time,
the Secretary must inform any place where the person is
engaged in child-related work, or is listed as being available to
perform child-related work, that the assessment notice has
expired. The Secretary will not always know if a person is
working, or where they are working, and so the duty to notify
will only arise if the Secretary is aware of these things.
Clause 24 allows any holder of an assessment notice to surrender that
notice at any time. A person may have stopped working in
child-related work and not want to be subject to the obligations
placed on them as the holder of an assessment notice and so
simply hand their notice in. That person will no longer be
regarded as having a current assessment notice.
Clause 25(1) sets out when a person who has received a negative notice may
reapply for an assessment notice. This can happen once
5 years have passed since the negative notice was issued.
This will allow the person to argue that, for example, the
further passage of time makes their convictions less relevant.
A person may also apply for a reassessment at any time after
the issue of a negative notice if there has been a "relevant
change" in their circumstances.
Clause 25(2) establishes that a relevant change is the finalisation of a
pending charge without a finding of guilt, the quashing of a
finding of guilt, a person no longer being on the Sex Offenders
Register within the meaning of the Sex Offenders
Registration Act 2004, the end of an extended supervision
order under the Serious Sex Offenders Monitoring Act 2005
or a relevant finding (a finding by a prescribed professional
disciplinary body) being set aside.
11
Clause 26 sets out VCAT's role in the Working with Children scheme.
Clause 26(1) gives a person who was issued with a negative notice because
he or she fell into Category 1 (as established by clause 12) an
avenue to apply to VCAT for an assessment notice, unless he
or she is in Category 1 because he or she is on the Sex
Offender Register within the meaning of the Sex Offenders
Registration Act 2004 or is subject to an extended supervision
order under the Serious Sex Offenders Monitoring Act 2005.
Clause 26(2) gives VCAT the discretion to order that an assessment notice
be given to a person eligible to make an application under
clause 26(1). The presumption is that an assessment order
must not be given, but this can be displaced if VCAT is
satisfied that doing so would not pose an unjustifiable risk to
the safety of children, having regard to the criteria that the
Secretary must consider when exercising his or her discretion
under clause 13 of the Bill.
Clause 26(3) states that as well as having to find that the presumption in
clause 26(2) has been rebutted, VCAT can only order the
Secretary to give an assessment notice if VCAT is satisfied that
it is in the public interest to do so.
Clause 26(4) requires the Secretary to comply with VCAT's order.
Clause 26(5) allows all people, other than those who fall within clause 26(1),
who have received a negative notice to make an application to
VCAT for review of the decision. The conduct of the review
will be governed by the Victorian Civil and Administrative
Tribunal Act 1998.
Clause 26(6) explains that those people who have been issued with a
negative notice because they are on the Sex Offender Register
within the meaning of the Sex Offenders Registration Act
2004 or are subject to an extended supervision order under the
Serious Sex Offenders Monitoring Act 2005, may only make
an application on the ground that they are not in fact in either
of these categories--ie: that they have been misidentified, or
that they once were such a person but are no longer.
Clause 26(7) sets out the time limits that apply to an application under this
clause.
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PART 3--EXEMPTIONS FROM THE WORKING WITH
CHILDREN CHECK
Clause 27 provides that a parent will not be required to get an assessment
notice to volunteer in relation to an activity in which their child
ordinarily participates. The term "parent" is broadly defined in
clause 3 and includes step-parents and foster parents. A parent
will not need a working with children check so long as their
child continues to ordinarily participate in the activity.
However, if the parent's child ceases to be involved in the
activity, the parent will need to get a working with children
check to continue to work or volunteer in relation to that
activity.
The term "activity" carries its ordinary meaning. For example,
a parent who officiates at the long-jump pit at an athletics
carnival whilst their child participates in the shot-put will not
require a check because the "activity" is the athletics carnival,
not the long-jump. Similarly, a parent who puts on makeup at
a drama performance in which the parent's child is performing
will not require a check even if the parent's child does not
require make-up for their performance, because the "activity" is
the performance, not the applying of makeup.
Clause 28 provides that a person will not be required to get an assessment
notice to engage in child-related work when all the children
with whom he or she has direct contact during the work are
closely related to him or her. The term "closely related" is
defined in clause 28, and includes, for example, a child's
grandparent, uncle, aunt, brother or sister. For example, if an
aunt is paid to teach piano to her nieces, she will not be
required to get an assessment notice.
Clause 29 provides that a child will not be required to get an assessment
notice to work in child-related work. It also provides that an
18 and 19 year old school student who undertakes voluntary
work at their school, or as organised by their school, will not be
required to get an assessment notice to work in child-related
work.
Clause 30(1) all teachers must be registered by the Victorian Institute of
Teaching to teach in Victorian schools. The Victorian
Institute of Teaching Act 2001 requires the Chief
Commissioner of Police to notify the Institute if a teacher is
charged with, found guilty or convicted of a sexual offence
(as defined in that Act) and the Institute must cancel a teacher's
registration if he or she is convicted of a sexual offence.
Because the registration scheme for teachers is similar to the
13
scheme proposed by the Bill, teachers will not be required to
get an assessment notice to work in any form of child-related
work.
Clause 30(2) requires a person who has lost their registration with the
Victorian Institute of Teaching to notify any organisation
where they are relying on the exemption in clause 30(1) to
perform child-related work so that the organisation will be
aware of the person's changed circumstances.
If a registered teacher loses his or her registration, he or she
will be required to get an assessment notice, through the
general application processes in clause 10 if he or she wishes to
continue to work with children. If a relevant finding of guilt
caused the cancellation of their registration, this finding will be
taken into account in the assessment of their application for an
assessment notice.
Clause 31(1) sworn police officers in Victoria are regulated by the Police
Regulation Act 1958. If a sworn police officer is charged with
a criminal offence, the Commissioner has the power to take
appropriate action, which may result in suspension or dismissal
from the force. Sworn police officers who are neither
suspended nor dismissed from the police force will not be
required to get an assessment notice to work in child-related
work.
Clause 31(2) requires a sworn police officer who has been suspended or
dismissed from the police force to notify any organisation
where they are relying on the exemption in clause 31(1) to
perform child-related work, so that the organisation will be
aware of the person's changed circumstances.
If a sworn police officer is suspended from duty, he or she will
be required to get an assessment notice, through the general
application processes in clause 10 if he or she wishes to
continue to work with children. If a relevant criminal
conviction or charge caused the suspension or dismissal, this
information will be taken into account in the assessment of
their application for an assessment notice.
Clause 32 provides that people who do not live in Victoria and who do
not ordinarily perform child-related work in Victoria are not
required to get an assessment notice. For example, if a coach
of a junior soccer team from New South Wales takes his or her
team to a sports carnival in Victoria, the coach will not be
required to get an assessment notice.
14
However, a person will still need an assessment notice if he or
she ordinarily performs child-related work in Victoria, even if
he or she does not live in Victoria. For example, a person who
lives in Albury but works in a Kindergarten in Wodonga will
require a working with children check.
PART 4--OFFENCES RELATED TO CHILD-RELATED
WORK
Clause 33 establishes the offence of engaging in child-related work
without an assessment notice.
Clause 33(1) sets out the elements of this offence. In particular, it
establishes the mental elements required for the offence,
making it clear that a person is only guilty of this offence if
they know that they are engaging in child-related work and
know that they do not have an assessment notice or are reckless
about whether they have an assessment notice.
Clause 33(2) creates defences to the offence. Clause 33(2)(a) creates a
defence that allows a person to start work without an
assessment notice, as long as the person--
· had applied for an assessment notice and the application
is still being processed; and
· had not at any time been given a negative notice or
having been given a negative notice had subsequently
been given an assessment notice; and
· was not on the Sex Offender Register within the
meaning of the Sex Offenders Registration Act 2004;
and
· was not subject to an extended supervision order under
the Serious Sex Offenders Monitoring Act 2005.
Similarly, clause 33(2)(b) allows the exemptions in Part 3 to
operate, by providing a defence to those who engage in child-
related work without an assessment notice because they are
covered by one of the exemptions. Again, this defence will
only apply if the person--
· had not at any time been given a negative notice or
having been given an negative notice had subsequently
been given an assessment notice; and
15
· is not on the Sex Offender Register within the meaning
of the Sex Offenders Registration Act 2004; and
· is not subject to an extended supervision order under the
Serious Sex Offenders Monitoring Act 2005.
These exceptions to the defence ensure that people in these
categories cannot use the exemptions in Part 3 of the Bill.
Clause 33(2)(c) applies only to those who are not volunteers or
trainees. It allows workplaces some flexibility in dealing with
people who have a negative notice by ensuring that the person
does not commit an offence while the employer is transferring
the person to another area of work that is not child-related or
complying with the Workplace Relations Act 1996 of the
Commonwealth. This last point may, for example, allow an
employee to serve out a period of notice.
Clause 33(3) sets the penalty for this offence at level 7, which is a maximum
2 years imprisonment, or 240 penalty unit fine, or both.
Clause 34(1) establishes that it is an offence for the holder of a negative
notice to apply for child-related work. It sets the penalty for
this offence at level 7, which is a maximum 2 years
imprisonment, or 240 penalty unit fine or both.
Clause 34(2) provides that it is a defence to a charge under clause 34(1) for
the accused to prove that he or she did not know that the work
was child-related work.
Clause 34(3) broadens the definition of "child-related work" only for this
offence. A person who holds a negative notice will be
considered to have applied for child-related work even if that
work was directly supervised by another person.
Clause 35(1) creates the offence of engaging a person who does not have an
assessment notice in child-related work. It is the corollary of
the offence in clause 33. This clause sets out the elements of
the offence, making it clear that a person is only guilty of this
offence if they know that the work they are engaging a person
in is child-related work and they know that the worker does not
have an assessment notice or are reckless about whether the
worker has an assessment notice.
Clause 35(2) as in clause 33, there are a number of defences to this offence.
The person does not commit an offence if he or she had an
application for a working with children check pending or was
exempt from the working with children check by virtue of
Part 3 of the Bill. Further, that a person does not commit an
16
offence if his or her employer was in the process of moving the
worker to non-child-related work or was in the process of
terminating the person's employment in accordance with the
Workplace Relations Act 1996 of the Commonwealth.
Unlike Clause 33, there is no mention of the worker's status as
the holder of a negative notice, or a registrant on the Sex
Offender Register etc as these matters will not necessarily be
within the knowledge of the person engaging the worker.
Clause 35(3) provides a defence for parents. ("Parent" is broadly defined in
clause 3) If a parent has engaged a person to work with their
own child (ie a music teacher, or party entertainer) the parent is
exempt from prosecution under this section--even if other
children are involved. This defence does not apply to the
worker, who will be liable to be prosecuted under clause 33.
Clause 35(4) sets the penalty for this offence at level 7, which is a maximum
2 years imprisonment, or 240 penalty unit fine or both.
In the case of a body corporate, the offence is a fine of up to
1200 penalty units.
Clause 36(1) establishes that it is an offence for an agency to offer the
services of a person in child-related work if that person does
not have an assessment notice. The clause sets out the
elements of the offence, and makes it clear that the agency only
commits an offence if it knows that the person does not have an
assessment notice or is reckless as to whether the person has an
assessment notice.
Clause 36(2) provides a defence to the offence in clause 36(1). The clause
states that an offence will not have been committed if the
worker had an application for an assessment notice pending or
the worker did not need an assessment notice because he or she
was exempt from a working with children check under Part 3
of the Bill.
As in clause 35(2), there is no mention of the worker's status as
the holder of a negative notice, or a registrant on the Sex
Offender Register etc as these matters will not necessarily be
within the knowledge of the agency.
Clause 36(3) sets the penalty for this offence at level 7, which is a maximum
2 years imprisonment, or 240 penalty unit fine or both.
In the case of a body corporate, the offence is a fine of up to
1200 penalty units.
17
Clause 37 establishes that an assessment notice that has been granted to a
person on an application that did not specify an intention to
engage in child-related work for profit or gain cannot be used
by a person who is engaging in child-related work for profit or
gain.
Clause 37(1) creates an offence of using a volunteer assessment notice in
order to engage in child-related work for profit or gain. It sets
out the elements of the offence and makes it clear that an
offence is only committed if a person knows that, or is reckless
as to whether or not, he or she is engaging in the work for
profit or gain.
Clause 37(2) creates a similar offence for employers. The employer only
commits an offence if he or she (among other things) knows
that the worker only has a volunteer assessment notice and
knows, or is reckless as to whether or not, the worker is
performing the work for profit or gain.
Clause 37(3) sets the penalty for the offences in clause 37(1) and (2) at a
level 11 fine of 5 penalty units.
Clause 38 makes it an offence to use a false assessment notice or another
person's assessment notice. A "false" notice is defined by
reference to section 83A(6) of the Crimes Act 1958 which
creates the offence of falsification of documents. The penalty
for this offence is set at level 7, which is a maximum 2 years
imprisonment, or 240 penalty unit fine or both.
Clause 39(1) establishes the offence of providing false or misleading
information in or in relation to a working with children check,
or on a reassessment. The penalty for this offence is set at
level 7 which is a maximum 2 years imprisonment, or
240 penalty unit fine or both.
Clause 39(2) provides that it is a defence to the offence in clause 39(1) if the
accused believed, on reasonable grounds, that the false
information was true, or that the misleading information was
not misleading.
Clause 40(1) makes it an offence to give information acquired through the
working with children check or under clause 18, 20(1), 22,
23(5), 30(2) or 31(2) to any other person. The penalty for this
offence is a maximum fine of 60 penalty units.
Clause 40(2) sets out the exceptions to this rule. It will not be an offence to
provide information in the circumstances set out in clauses
40(2)(a)-(g).
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PART 5--MISCELLANEOUS
Clause 41 Sub-clause (1) provides that the Chief Commissioner of Police
must notify the Secretary if he or she becomes aware that a
person with an assessment notice has been charged with a
relevant offence. This means that working with children
checks will be regularly updated so that if a person who holds
an assessment notice is charged with a relevant offence, the
Chief Commissioner of Police will notify the Secretary of this
change. If the Secretary is notified by the Chief Commissioner
that a person with an assessment notice has been charged with
a relevant offence, the Secretary must conduct a re-assessment
of that person's eligibility to hold an assessment notice
(clause 21).
Sub-clause (2) provides that the Chief Commissioner of Police
must notify the Secretary if he or she becomes aware that a
person with an assessment notice has had a charge for a
relevant offence finally dealt with by the courts. Clause 6 of
the Bill explains when a charge is pending and when it has
been finally dealt with. If the Secretary is notified by the Chief
Commissioner that a person with an assessment notice has had
a charge for a relevant offence finally dealt with by the courts,
the Secretary must conduct a re-assessment of that person's
eligibility to hold an assessment notice. However, the
Secretary need not conduct a re-assessment if a person was
not found guilty of the charge and a re-assessment was carried
out when the Secretary was notified of the filing of the charge
and the assessment notice was not revoked following that
re-assessment (clause 21).
Clause 42 makes it clear that the Secretary is able to notify the Chief
Commissioner of Police if he or she suspects on reasonable
grounds that a criminal offence has been committed under the
Bill or Part 5 of the Sex Offender Registration Act 2004.
This is to assist the police with enforcing these criminal
offences and to ensure that the privacy provisions at clause 40
are not read as inhibiting the detection of these offences.
Clause 43 allows the Secretary to delegate his or her powers under the
Bill to public servants. This will mean that the Secretary does
not need to personally carry out all of the functions that he or
she is granted under the Bill. In practice, he or she may
delegate some or all of these functions to a person or business
unit within the public service.
19
Clause 44 deals with offences committed by bodies corporate.
Sub-clause (1) provides that if a charge is brought against a
body corporate for an offence against the Bill, it is a defence to
that charge if the body corporate can show that it took all
reasonable steps to comply with the provision under which the
body corporate is charged.
Sub-clause (2) provides that if a body corporate is found to
have committed an offence under the Bill, each officer of the
body corporate is also taken to have committed the offence if
the officer knew of, or knowingly authorised or permitted, the
offence. The term "officer" is defined in clause 3 of the Bill
and means, in the case of a corporation, a person who is an
officer under section 9 of the Corporations Act 2001 of the
Commonwealth. In the case of any other type of body
corporate, it means a person who is involved in managing the
body corporate.
Sub-clause (3) provides that an officer of a body corporate may
be proceeded against and convicted or found guilty of an
offence, regardless of whether the body corporate has been
proceeded against.
Sub-clause (4) provides that subclauses (2) and (3) do not
affect the legal liability of a body corporate for an offence
committed by the body corporate under the Bill.
Sub-clause (5) describes how it is possible to establish the
"state of mind" of a body corporate. In some clauses in the
Bill, it is necessary to show that a body corporate had a
particular state of mind in order for an offence to occur. It
provides that, to show that a body corporate had a particular
state of mind, it is necessary to show that the relevant conduct
was engaged in on behalf of a body corporate by an officer of
the body corporate acting within the scope of his or her actual
or apparent authority and that the officer had that state of mind.
Clause 45 provides for offences committed by unincorporated bodies and
partnerships etc.
The term "person" is defined to include unincorporated bodies
or associations and partnerships (clause 3).
20
Sub-clause (1) provides that, where a "person" is guilty of an
offence under the Bill and the "person" is an unincorporated
body or association or partnership, it means--
· for an unincorporated body or association--a reference
to each member of the committee of management who
knew of, or knowingly authorised or permitted, the
offence; and
· for a partnership--each partner who know of, or who
knowingly authorised or permitted the commission of
the offence.
Sub-clause (2) describes how to establish the "state of mind" of
an unincorporated body or association or a partnership.
To show that an unincorporated body or association or
partnership has a particular state of mind, it is necessary to
show that the relevant conduct was engaged in on behalf of the
unincorporated body or association or partnership by an
employee or agent acting within the scope of his or her actual
or apparent authority and that the employee or agent had that
state of mind.
Clause 46 provides that where the Bill requires that notice be given to a
person by the Secretary, the notice may, unless a contrary
intention appears, be given by any of the methods referred to in
paragraphs (a) to (c).
Clause 47 provides that a document that is apparently from the Secretary
or a delegate certifying the matters listed in clauses (a) to (f) is
admissible as proof of the matters stated in the document.
This is a presumption that can be rebutted by evidence to the
contrary.
Clause 48 provides that the Secretary and public servants performing
functions under the Bill are not personally liable in the
performance of a function under the Bill if they act in good
faith in the performance of that function or in the reasonable
belief that the act or omission was in performance of that
function under the Bill. Any liability resulting from the act or
omission attaches to the State.
Clause 49 provides for the making of regulations under the Bill.
21
PART 6--AMENDMENT OF CERTAIN ACTS
Clause 50(1) amends section 5(2BC) of the Sentencing Act 1991 to provide
that a Court may not, in sentencing an offender, have regard to
any consequence that may arise under the Bill.
Clause 50(2) amends Clause 1 of Schedule 1 to the Sentencing Act 1991 to
broaden and update the range of sexual offences that are
serious offender offences. This schedule is referred to in
determining the offences that cause an application to be
regarded as a category 1 application (clause 12) or a category 2
application (clause 13). The clause also inserts a provision
into clause 1 of the schedule that ensures that any offence,
committed in Victoria or elsewhere, that is the equivalent of an
offence under this clause of the Schedule, will be treated as if it
were included in the Schedule.
Clause 50(3) amends Clause 2 of Schedule 1 to the Sentencing Act 1991
which contains violent offences to ensure that any offence
committed in Victoria or elsewhere, that is the equivalent of an
offence under that clause, will be treated as if it were included
in the Schedule.
Clause 50(4) amends Clause 3 of Schedule 1 to the Sentencing Act 1991
which contains serious violent offences to ensure that any
offence committed in Victoria or elsewhere, that is the
equivalent of an offence under that clause, will be treated as if
it were included in the Schedule.
Clause 50(5) amends Clause 4 of Schedule 1 to the Sentencing Act 1991
which contains drug offences to ensure that any offence
committed in Victoria or elsewhere, that is the equivalent of an
offence under that clause, will be treated as if it were included
in the Schedule.
Clause 51(1) amends section 67(1) of the Sex Offenders Registration Act
2004 to ensure that the categories of work used in the
definition of child-related employment in that Act are
consistent with those referred to in the same definition in this
Bill. The two definitions differ in other respects.
Clause 51(2) amends section 67(1) of the Sex Offenders Registration Act
2004 to ensure that the definition of "educational institution" in
that Act is consistent with the same definition in this Bill.
Clause 51(3) amends the penalty to the offence in section 68(1) of the Sex
Offenders Registration Act 2004.
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Clause 51(4) amends section 70(2)(e) of the Sex Offenders Registration
Act 2004 to ensure that the confidentiality provisions in the
Bill relating to children and those with impaired mental
functioning are consistent with the equivalent provisions in the
Sex Offenders Registration Act 2004.
Clause 51(5) inserts 2 Commonwealth offences into Schedule 2 to the Sex
Offenders Registration Act 2004.
Clause 52 inserts a new Part into Schedule 1 to the Victorian Civil and
Administrative Tribunal Act 1998. This Part will establish
that a presidential member of the Tribunal sitting alone will
constitute the Tribunal for a proceeding under this Bill. It will
also require that, in considering a review of an application for
an assessment notice that is a Category 2 or 3 application, the
Tribunal must have regard to the matters that the Secretary
must have regard to on such an application, and whether it is in
the public interest to grant the application.
Clause 53(1) amends the Victorian Institute of Teaching Act 2001.
Section 27(2B) of that Act currently requires the Chief
Commissioner of Police to notify the Victorian Institute of
Teaching if a teacher is charged with, committed for trial on or
is found guilty of a sexual offence (as defined in that Act).
This clause broadens the Chief Commissioner's responsibility
to also notify the Institute of proceedings in relation to offences
listed in clause 2 (violent offences) or clause 4 (drug offences)
of Schedule 1 to the Sentencing Act 1991.
Clause 53(2) amends section 48 of the Victorian Institute of Teaching Act
2001 to ensure that determinations made by its disciplinary
panel imposing conditions, limitations or restrictions on the
registration of a teacher, suspending the registration of a
teacher or cancelling the registration of a teacher are notified to
the Secretary. This will cause the Secretary to re-assess a
person's assessment notice under clause 21.
23