Victorian Current Acts

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WORKING WITH CHILDREN ACT 2005 - SECT 35

Offence to engage in child-related work a person 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; 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 does not have a current assessment notice or is reckless as to whether or not he or she has one.

Note to s. 35(1) inserted by No. 79/2006 s. 62(4), substituted by No. 66/2014 s. 35(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—

S. 35(2)(a) amended by No. 61/2012 s. 15, substituted by No. 66/2014 s. 35(2).

        (a)     the worker had applied for a working with children check and the application had not been finally decided or withdrawn; or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

        (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—

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

S. 35(2)(c)(ii) amended by No. 74/2009 s. 20(2).

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

S. 35(2A) inserted by No. 66/2014 s. 35(3).

    (2A)     The accused may not rely on the defence set out in subsection (2)(a) if, at the time the offence is alleged to have been committed, the accused—

        (a)     knew or ought reasonably to have known that the worker was subject to an obligation or order specified in clause 1 of Schedule 3; or

        (b)     knew or ought reasonably to have known that the worker had been charged with or convicted or found guilty of an offence specified in clause 2 of Schedule 3.

    (3)     In a proceeding for an offence against subsection (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 with a child of whom the accused is a parent, whether or not it also involved direct contact with other children.

S. 35(3A) inserted by No. 56/2007 s. 17.

    (3A)     A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, the worker had been given a negative notice by the Secretary and had applied to VCAT—

S. 35(3A)(a) amended by No. 66/2014 s. 35(4).

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

S. 35(3A)(b) substituted by No. 66/2014 s. 35(5).

        (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.

    (4)     A person who is guilty of an offence against subsection (1) is liable, in the case of a natural 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.



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