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WORKING WITH CHILDREN ACT 2005 - SECT 33

Engaging in child-related work without an assessment notice

    (1)     A person is guilty of an offence if—

        (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 a current assessment notice or is reckless as to whether or not he or she has one.

Note to s. 33(1) inserted by No. 79/2006 s. 62(4), substituted by No. 66/2014 s. 33(1).

Note

See section 9(1) for the meaning of child-related work .

    (2)     In a proceeding for an offence against subsection (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—

        (a)     had applied for a working with children check and the application had not been finally decided or withdrawn and he or she—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 negative notice or, having been given a negative notice, had subsequently been given an assessment notice; and

S. 33(2)(a)(ia) inserted by No. 61/2012 s. 14,
repealed by No. 66/2014 s. 33(2).

    *     *     *     *     *

S. 33(2)(a)(ii) amended by Nos 21/2008 s. 25(2)(c), 91/2009 s. 219(Sch. 3 item 7.6), substituted by No. 66/2014 s. 33(3).

              (ii)     was not subject to an obligation or order specified in clause 1 of Schedule 3; and

S. 33(2)(a)(iii) inserted by No. 66/2014 s. 33(3).

              (iii)     was not charged with or had not been convicted or found guilty of an offence specified in clause 2 of Schedule 3; or

        (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 negative notice, had subsequently been given an assessment notice; and

S. 33(2)(b)(ii) amended by Nos 21/2008 s. 25(2)(c), 91/2009 s. 219(Sch. 3 item 7.7), substituted by No. 66/2014 s. 33(4).

              (ii)     was not subject to an obligation or order specified in clause 1 of Schedule 3; or

        (c)     unless engaging in the work as a volunteer or undertaking practical training—

              (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

              (ii)     his or her employer was in the process of—

    (A)     transferring him or her to work that was not child-related work; or

S. 33(2) (c)(ii)(B) amended by No. 74/2009 s. 20(1).

    (B)     terminating his or her employment in accordance with the requirements of the Fair Work Act 2009 of the Commonwealth.

S. 33(2A) inserted by No. 56/2007 s. 15.

    (2A)     A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, he or she had been given a negative notice by the Secretary and had applied to VCAT—

S. 33(2A)(a) amended by No. 66/2014 s. 33(5).

        (a)     under section 26A(1) for an assessment notice to be given to him or her; or

S. 33(2A)(b) substituted by No. 66/2014 s. 33(6).

        (b)     under section 26(1) for review of a decision of the Secretary to give him or her a negative notice

and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.

S. 33(2B) inserted by No. 72/2016 s. 25.

    (2B)     A person is not guilty of an offence against subsection (1) if—

        (a)     at the time the offence is alleged to have been committed, the work engaged in is child-related work described in section 9(6); and

        (b)     the person applies, within 21 days after first engaging in that work, for a working with children check to be carried out.

    (3)     A person who is guilty of an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both.



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