Working with Vulnerable People (Background Checking) Act 2011

This Act is the Working with Vulnerable People (Background Checking) Act 2011.

The dictionary at the end of this Act is part of this Act.

Note 1 The dictionary at the end of this Act defines certain terms used in this Act, and includes references (signpost definitions) to other terms defined elsewhere in this Act.

For example, the signpost definition ‘spent, for a conviction—see the Spent Convictions Act 2000, section 7.’ means that the term ‘spent’ is defined in that section and the definition applies to this Act.

Note 2 A definition in the dictionary (including a signpost definition) applies to the entire Act unless the definition, or another provision of the Act, provides otherwise or the contrary intention otherwise appears (see Legislation Act, s 155 and s 156 (1)).

A note included in this Act is explanatory and is not part of this Act.

Note See the Legislation Act, s 127 (1), (4) and (5) for the legal status of notes.

Other legislation applies in relation to offences against this Act.

Note 1 Criminal Code

The Criminal Code, ch 2 applies to all offences against this Act (see Code, pt 2.1).

The chapter sets out the general principles of criminal responsibility (including burdens of proof and general defences), and defines terms used for offences to which the Code applies (eg conduct, intention, recklessness and strict liability).

Note 2 Penalty units

The Legislation Act, s 133 deals with the meaning of offence penalties that are expressed in penalty units.

A person making a decision under this Act must regard the best interests of vulnerable people as the paramount consideration.

In forming a view about the best interests of vulnerable people, a person making a decision under this Act must take into account the safety, welfare and protection of vulnerable people.

Part 2 Important concepts

In this Act:

vulnerable person means—

a child; or

an adult who is—

disadvantaged; and

accessing a regulated activity in relation to the disadvantage.

Examples—disadvantaged

1 an adult with a physical or mental disability

2 an adult who suffers social or financial hardship

3 an adult who cannot communicate, or who has difficulty communicating, in English

In this Act:

regulated activity—

means an activity or service—

mentioned in schedule 1; or

that is an NDIS activity; or

prescribed by regulation; but

does not include an activity or service declared by the Minister under subsection (2).

The Minister may declare that a stated activity or service is not a regulated activity.

A declaration is a disallowable instrument.

In this Act:

NDIS activity means a support or a service provided to people with a disability by a registered NDIS provider under the NDIS Act.

A person is engaged in a regulated activity if the person—

has contact with a vulnerable person as part of engaging in the activity; and

Note Contact, between a person and a vulnerable person as part of engaging in a regulated activity—see s 10.

is engaged in the activity in any capacity and whether—

for reward or otherwise; or

under an arrangement with someone else or otherwise.

Examples—capacity in which engaged in activity

1 employee

2 contractor or subcontractor

3 consultant

4 self-employed person

5 apprentice

6 volunteer

7 agent

8 supervisor

9 person on a work experience placement for an educational or vocational course

10 person carrying out work for a sentence, including a community service order

11 minister of religion for a religious organisation

In this Act:

contact, between a person and a vulnerable person as part of engaging in a regulated activity, means contact that—

would reasonably be expected as a normal part of engaging in the activity; and

is more than incidental to engaging in the activity; and

Example—incidental a person works in the same building as a vulnerable person, but does not have any physical contact or face-to-face communication with the vulnerable person

is 1 or more of the following:

physical contact, including engaging in the activity at the same place as the vulnerable person;

oral communication, whether face-to-face or by telephone;

written communication, including—

electronic communication; or

dealing with a record relating to the vulnerable person;

making a decision that affects the vulnerable person; and

for an NDIS activity—is more than incidental contact under the National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Cwlth), rule 6.

Examples—contact

1 A water main bursts at a school during school hours. A plumber is called to the school to fix the problem. Despite working near children, the plumber’s contact with the children is not contact for this Act for either of the following reasons:

it would not reasonably be expected as a normal part of plumbing;

it is incidental to the plumber’s activity.

2 A school janitor routinely carries out minor repairs at a school during school hours. The janitor’s contact with the children is contact for this Act as the contact—

would reasonably be expected as a normal part of the janitor’s activities; and

is not incidental to the janitor’s activities; and

is physical contact, as the janitor is carrying out the activities in the same place as children.

In this Act:

employer, in relation to a regulated activity—

means an entity for whom a person engages in the activity; and

includes an entity who—

in the course of business, arranges for the placement of a person in employment with others; and

engages a person under a contract to perform work; and

engages a worker to perform work as a volunteer for the person under an agreement (whether written or unwritten).

Examples—employer

1 principal contractor is an employer of a subcontractor

2 charitable organisation is an employer of a volunteer

3 religious organisation is an employer of a minister of religion

4 a registered NDIS provider is an employer of a person engaged in an NDIS activity

Note Entity includes an unincorporated body and a person (including a person occupying a position) (see Legislation Act, dict, pt 1).

In this Act:

relevant offence means any of the following offences (whether committed in the ACT or elsewhere):

a sexual offence;

an offence against the person;

an offence involving violence;

an offence involving dishonesty or fraud;

an offence relating to property;

an offence involving possession of, or trafficking in, a drug of dependence or controlled drug;

an offence against an animal;

a driving offence;

a disqualifying offence.

Note A reference to an offence includes a reference to a related ancillary offence, eg attempt (see Legislation Act, s 189).