Child Protection (Working with Children) Act 2012

This Act is the Child Protection (Working with Children) Act 2012.

This Act commences on a day or days to be appointed by proclamation.

The object of this Act is to protect children—

by not permitting certain persons to engage in child-related work, and

by requiring persons engaged in child-related work to have working with children check clearances.

Note.

For other legislation relating to the safety, welfare and well-being of children, and the related functions of the Children’s Guardian, see the Children’s Guardian Act 2019. In particular, see section 128 and Part 6 of that Act.

The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.

In this Act—

accredited adoption service provider has the same meaning as in the Adoption Act 2000.

adult means a person who is 18 years of age or older.

affected person, for Part 4—see section 26.

applicant, for Part 4—see section 26.

application number means the unique number given to an applicant for a working with children check clearance under this Act.

approved provider means an approved provider under the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011.

assessment requirement—see section 14.

authorised carer has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.

authorised officer means a person appointed as an authorised officer by the Children’s Guardian under section 50B of this Act.

carer applicant has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.

child-related work—see sections 6 and 7.

children means persons under the age of 18 years.

Children’s Guardian means the Children’s Guardian appointed under section 115 of the Children’s Guardian Act 2019.

continuing residence approval means an approval granted by the Children’s Guardian under section 11D that is in force.

conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

criminal history—see section 5C.

current application for a working with children check clearance means an application that has not been finally determined or withdrawn or terminated.

Department means the Department of Communities and Justice.

designated agency has the same meaning as in the Children’s Guardian Act 2019.

disqualification reassessment, for Part 4—see section 26.

disqualified person—see section 18(1).

education and care service means an education and care service within the meaning of the Children (Education and Care Services) National Law (NSW) or a State regulated education and care service within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011.

employer includes—

a person who, in the course of business, arranges for the placement of a person in employment with others, or

a person who engages a person under a contract to perform work, or

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

exercise a function includes perform a duty.

family day care service has the same meaning as it has in the Children (Education and Care Services) National Law (NSW).

function includes a power, authority or duty.

government agency includes any public or local authority.

interim bar means an interim bar imposed under section 17.

internal review, for Part 4—see section 26.

internal review decision, for Part 4—see section 26.

key position, in an organisation, means each of the following—

the chief executive of the organisation,

the principal officer—if the organisation is a designated agency, a registered agency or an accredited adoption service provider,

any other position in the organisation that is of a kind prescribed by the regulations.

mutual recognition negative notice—see section 25A.

notifiable person in relation to an applicant for a clearance or the holder of a clearance means each of the following—

any employer or proposed employer of the applicant or holder in respect of child-related work,

if the applicant or holder resides on the same property as an authorised carer or carer applicant—the designated agency that authorised the carer or to whom the carer applicant made the application,

if the applicant or holder resides on a property where a family day care service is provided—the approved provider of the service,

if the applicant or holder is a prospective adoptive parent or an adult resident within the meaning of section 11—the relevant decision-maker (within the meaning of that section) in relation to the prospective adoptive parent,

if the applicant or holder is a prospective guardian or an adult resident within the meaning of section 11A—the relevant decision-maker (within the meaning of that section) in relation to the prospective guardian,

any other person prescribed by the regulations.

principal officer of—

an accredited adoption service provider—has the same meaning as in the Children’s Guardian Act 2019, or

a designated agency or a registered agency—has the same meaning as in the Children’s Guardian Act 2019.

prospective adoptive parent means a person who has submitted an application under the Adoption Act 2000 to adopt a child and whose application has not been withdrawn or finally dealt with by the making of or refusal to make an adoption order.

prospective guardian has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.

registered agency has the same meaning as in the Children’s Guardian Act 2019.

reporting body—see section 35(4).

reside on a property has the meaning given by section 5A.

reviewable decision, for Part 4—see section 26.

Secretary means the Secretary of the Department.

worker means any person who is engaged in work in any of the following capacities—

as an employee,

as a self-employed person or as a contractor or subcontractor,

as a volunteer,

as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),

as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer of a religion or other member of a religious organisation.

working day means any day that is not a Saturday, Sunday or public holiday.

working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work.

working with children number means the number given for a working with children check clearance under this Act.

working with children register means the register established under section 25.

Note.

The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.

Notes included in this Act do not form part of this Act.

Subject to subsection (2), a person resides on a property if the person resides (which includes sleep on a regular or frequent basis) anywhere on the property (whether or not in a building, caravan, structure, vehicle or other thing).

The regulations may prescribe circumstances in which a person is, or is not, taken to reside on a property (including by prescribing circumstances in which 2 persons are, or are not, taken to be residing on the same property).

A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.

A person’s criminal history includes—

convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and

criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and

convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section).

In this section—

conviction has the same meaning as it has in the Criminal Records Act 1991.

A worker is engaged in child-related work for the purposes of this Act if—

the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work, or

the worker is engaged in work in a child-related role referred to in subsection (3).

The work referred to is work for, or in connection with, any of the following that is declared by the regulations to be child-related work—

child development

mentoring and counselling services for children,

child protection

child protection services,

children’s health services

the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services,

clubs or other bodies providing services for children

clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children,

disability services

respite care or other support services for children with a disability,

early education and child care

education and care services, child care centres, nanny services and other child care,

education

schools or other educational institutions (other than universities) and private coaching or tuition of children,

entertainment for children

sporting, cultural or other entertainment venues used primarily by children and entertainment services for children,

justice services

detention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999),

religious services

any religious organisation,

residential services

refuges used by children, long term home stays for children, boarding houses or other residential services for children and overnight camps for children,

transport services for children

transport services especially for children, including school bus services and taxi services for children with a disability and supervision of school road crossings,

other

any other service for children prescribed by the regulations.

The following roles are referred to—

an approved provider or manager of an education and care service,

a nominated supervisor (within the meaning of the Children (Education and Care Services) National Law (NSW) of an education and care service,

an authorised carer,

an assessment officer (within the meaning of section 27A of the Children and Young Persons (Care and Protection) Act 1998),

the principal officer of a designated agency,

the principal officer of an accredited adoption service provider,

any other role with respect to children prescribed by the regulations.

The regulations may provide for circumstances in which direct contact by a worker with a child or children is taken to be a usual part of and more than incidental to a worker’s work.

In this section—

direct contact with children means—

physical contact, or

face to face contact.

A worker is taken to be engaged in child-related work if the worker is engaged, or proposes to engage, in work (other than as a volunteer) that is the subject of a requirement under this section.

The employer or proposed employer of a worker engaged in work for which a working with children check clearance is not required that involves access to confidential records or information about children may, by notice in writing to the worker, require the worker to obtain a clearance for the purposes of engaging in the work concerned.

The employer, or proposed employer, may at any time, by notice in writing given to the worker, revoke a requirement made under this section.

An employer may make or revoke a requirement under this section only with the approval of the Children’s Guardian.

A worker must not engage in child-related work unless—

the worker holds a working with children check clearance of a class applicable to the work, or

there is a current application by the worker to the Children’s Guardian for a clearance of a class applicable to that work.

Maximum penalty—100 penalty units, or imprisonment for 2 years, or both.

To avoid doubt, subsection (1)(b) does not prevent—

an employer or regulator requiring a worker to hold a working with children check clearance of a class applicable to child-related work before engaging in child-related work—

with or on behalf of the employer, or

in the industry, sector or activity the regulator regulates, or

a professional or other peak body from requiring a person to hold a working with children check clearance as a condition of membership, licensing or other registration with the body.

A worker must not engage in child-related work at any time that the worker is subject to an interim bar.

Maximum penalty—100 penalty units, or imprisonment for 2 years, or both.

It is a defence to proceedings for an offence against this section if the accused person establishes that—

the accused person did not know, at the time the offence was committed, that the work concerned was child-related work, or

the accused person was exempted by the regulations from the requirement to hold a clearance, or

the offence was consequential on the relevant accused person being subject to an interim bar, having an application for a clearance refused or terminated or having a clearance cancelled and, at the time that the offence was committed, the accused person did not know about the interim bar, refusal, termination or cancellation.

Note.

Division 3 also requires adult persons residing with authorised carers or approved providers of education and care services and potential adoptive parents to hold clearances or to have a current application for a clearance.

An employer must not commence employing, or continue to employ, a worker in child-related work if the employer knows or has reasonable cause to believe that—

the worker is not the holder of a working with children check clearance that authorises that work and that there is no current application by the worker to the Children’s Guardian for a clearance of a class applicable to that work, or

the worker is subject to an interim bar.

Maximum penalty—100 penalty units, in the case of a corporation, and 50 penalty units in any other case.

Note—

See section 8(1A), which clarifies that an employer may require a worker to hold a working with children check clearance before engaging in child-related work with or on behalf of the employer.

It is a defence to proceedings for an offence against this section if the accused person establishes that, at the time the offence was committed—

the accused person had been advised by the Children’s Guardian that the worker was the holder of a clearance or that there was a current application by the worker for a clearance, or

the worker was exempted by the regulations from the requirement to hold a clearance.

This section extends to an employer who, in the course of business, arranges for the placement of a worker in employment with others (a placement agency) if—

the employment is child-related work, and

the placement agency is a person or a person of a class declared by the regulations to be subject to this section.

For the purposes of applying this section to a placement agency referred to in subsection (3), the placement agency is taken to employ the worker during any period in which the placement agency arranges for the employment of the worker in child-related work.