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This is a Bill, not an Act. For current law, see the Acts databases.


WORKING WITH CHILDREN (CRIMINAL RECORD CHECKING) BILL 2004

                        Western Australia


Working with Children (Criminal Record
         Checking) Bill 2004

                          CONTENTS


      Part 1 -- Preliminary
1.    Short title                                                2
2.    Commencement                                               2
3.    Principle that best interests of children are paramount    2
4.    Terms used in this Act                                     2
5.    Managerial officers                                        6
6.    Meaning of "child-related work"                            6
7.    Meaning of "Class 1 offence" and "Class 2 offence"         8
8.    References to convictions                                  9
      Part 2 -- Assessment notices and
           negative notices
      Division 1 -- Application for assessment notice
9.    Application for assessment notice (child-related
      employment)                                               11
10.   Application for assessment notice (child-related
      business)                                                 11
11.   Withdrawal of application for assessment notice           12
      Division 2 -- Issue of assessment notices and
             negative notices
12.   Decision on application for an assessment notice          13
13.   CEO to invite submission about criminal record and
      issue interim negative notice                             15
14.   Duration of assessment notices and negative notices       17
15.   Further assessment notice may be obtained                 17




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Contents



           Division 3 -- CEO may require assessment notice
                  to be applied for
   16.     CEO may require certain employees to apply for
           assessment notice                                        17
   17.     CEO may require certain people who carry out
           child-related work to apply for assessment notice        18
   18.     CEO may issue negative notice if assessment notice
           not applied for                                          19
           Division 4 -- Cancellation of assessment notices
                  and negative notices
   19.     Applications for cancellation of negative notice         20
   20.     Cancellation of notice because of wrong or
           incomplete information                                   21
   21.     Issue of notice cancels any previous notice              22
           Division 5 -- Prohibitions relating to child-related
                  work
   22.     Employers not to employ certain people in
           child-related employment                                 23
   23.     People issued with negative notice or interim negative
           notice not to carry out child-related work               24
   24.     People without current assessment notice not to carry
           out child-related work                                   24
   25.     Defences for section 24                                  25
           Division 6 -- Review by State Administrative
                  Tribunal
   26.     Review by State Administrative Tribunal                  25
           Part 3 -- Changes in criminal record
                and criminal record checks
           Division 1 -- Relevant changes in criminal record
   27.     Meaning of relevant change in criminal record and
           requirement to give notice of that change                27
   28.     Relevant change in criminal record of certain
           applicants                                               27
   29.     Relevant change in criminal record of people
           employed in child-related employment                     27
   30.     Relevant change in criminal record of people carrying
           on child-related business                                28
   31.     Relevant change in criminal record of other people       28

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                                                               Contents



32.   CEO to treat notice of relevant change in criminal
      record as application for assessment notice                29
33.   People not to start or continue child-related work if
      convicted of Class 1 offence                               29
      Division 2 -- Criminal record checks
34.   CEO may carry out criminal record check                    30
      Part 4 -- General
35.   False or misleading information                            32
36.   Return of assessment notice to CEO                         32
37.   Exchange of information with corresponding
      authorities                                                32
38.   CEO may disclose to certain bodies information about
      issue of negative notices and interim negative notices     33
39.   Confidentiality of information                             34
40.   Protection from liability for wrongdoing                   35
41.   Employer to comply with Act despite other laws etc.        35
42.   CEO may require information to confirm compliance
      with Act                                                   36
43.   Liability of partners for certain offences                 36
44.   Evidentiary matters                                        37
45.   Delegation                                                 38
46.   Regulations                                                38
47.   Minister to review and report on Act                       39
      Part 5 -- Consequential amendments to
           the Children and Community
           Services Act 2004
48.   The Act amended                                            40
49.   Section 197 amended                                        40
50.   Section 207 amended                                        40
51.   Section 208 amended                                        41
52.   Section 209 amended                                        41
53.   Section 220 amended                                        41
54.   Section 221 amended                                        42
55.   Section 224 amended                                        42
      Part 6 -- Transitional provisions
56.   Terms used in this Part                                    43
57.   People carrying on a child-related business                43

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Contents



   58.     Volunteers continuing in child-related employment        44
   59.     Ministers of religion etc. continuing in child-related
           employment                                               44
   60.     Other people in child-related employment                 45
   61.     Transitional regulations                                 46
           Schedule 1 -- Class 1 offences                            47

           Schedule 2 -- Class 2 offences                            48

           Defined Terms




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                           Western Australia


                     LEGISLATIVE ASSEMBLY

              (As amended during consideration in detail)


  Working with Children (Criminal Record
           Checking) Bill 2004


                               A Bill for


An Act --
•  to provide for procedures for checking the criminal record of
   people who carry out, or propose to carry out, child-related
   work;
•  to prohibit people who have been charged with or convicted of
   certain offences from carrying out child-related work,
and to provide for related matters.



The Parliament of Western Australia enacts as follows:




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     s. 1



                              Part 1 -- Preliminary
     1.         Short title
                This Act may be cited as the Working with Children (Criminal
                Record Checking) Act 2004.

5    2.         Commencement
          (1)   This Act comes into operation on a day fixed by proclamation.
          (2)   Different days may be fixed under subsection (1) for different
                provisions.

     3.         Principle that best interests of children are paramount
10              In performing a function under this Act, the CEO or the State
                Administrative Tribunal is to regard the best interests of
                children as the paramount consideration.

     4.         Terms used in this Act
                In this Act, unless the contrary intention appears --
15              "another jurisdiction" means a jurisdiction other than Western
                    Australia (including jurisdictions outside Australia);
                "approved" means approved by the CEO;
                "assessment notice" means a written notice issued by the CEO
                    under section 12(1)(a);
20              "CEO" means the chief executive officer of the Department;
                "charge" means a non-conviction charge or a pending charge;
                "child" means a person who is under 18 years of age;
                "child care service" has the meaning given to that term in the
                    Children and Community Services Act 2004 section 198;
25              "child-related business" means child-related work carried out
                    by an individual for gain or reward otherwise than in the
                    course of child-related employment;



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                                                                 s. 4



     "child-related employment" means --
          (a) child-related work carried out by an individual under
               a contract of employment or apprenticeship (whether
               written or unwritten);
5         (b) child-related work carried out on a voluntary basis by
               an individual under an agreement (whether written or
               unwritten) with another person; or
          (c) child-related work carried out by an individual as a
               minister of religion or in any other capacity for the
10             purposes of a religious organisation;
     "child-related work" has the meaning given to that term in
         section 6;
     "Class 1 offence" has the meaning given to that term in
         section 7(1);
15   "Class 2 offence" has the meaning given to that term in
         section 7(2);
     "Commissioner" means the person holding or acting in the
         office of Commissioner of Police under the Police
         Act 1892;
20   "contact" includes --
          (a) any form of physical contact;
          (b) any form of oral communication, whether face to
               face, by telephone or otherwise; and
          (c) any form of electronic communication,
25       but does not include contact in the normal course of duties
         between an employer and an employee or between
         employees of the same employer;
     "conviction" has the meaning given to that term in section 8;
     "criminal record", in relation to a person, means --
30        (a) every conviction of the person of an offence, in
               Western Australia or another jurisdiction; and
          (b) every charge made against the person for an offence,
               in Western Australia or another jurisdiction;

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              "criminal record check" means the procedures set out in
                   section 34 to enable the CEO to determine whether a
                   person has a criminal record and, if so, to obtain details of
                   that criminal record;
5             "Department" means the department of the Public Service
                   principally assisting the Minister in the administration of
                   this Act;
              "educational institution for children" includes any school as
                   defined in the School Education Act 1999 but does not
10                 include --
                   (a) an educational institution that is recognised or
                         established as a university under a written law; or
                   (b) an educational institution prescribed by the
                         regulations for the purposes of this paragraph,
15                 even if that university or institution has a student who has
                   not reached 18 years of age;
              "interim negative notice" means a written notice issued by the
                   CEO under section 13;
              "negative notice" means a written notice issued by the CEO
20                 under section 12(1)(b);
              "non-conviction charge" means a charge of an offence that has
                   been disposed of by a court otherwise than by way of a
                   conviction;
              "officer of the Department" means a person employed in, or
25                 engaged by, the Department whether as a public service
                   officer under the Public Sector Management Act 1994,
                   under a contract for services or otherwise;
              "parent", of a child, means a person --
                   (a) who is the father, mother, stepfather or stepmother of
30                       the child;
                   (b) who at law has responsibility for --
                            (i) the long-term care, welfare and development
                                 of the child; or


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                                                                    s. 4



                 (ii)   the day to day care, welfare and development
                        of the child;
                or
          (c) who is in a de facto relationship with a person
5               referred to in paragraph (a) or (b);
     "pending charge" means a charge of an offence that has not yet
          been disposed of by a court;
     "relative", in relation to a child, means --
          (a) the child's --
10                  (i) parent, grandparent or other ancestor;
                   (ii) sibling;
                  (iii) uncle or aunt;
                  (iv) cousin;
                   (v) spouse or de facto partner,
15              whether the relationship is established by, or traced
                through, consanguinity, marriage, a de facto
                relationship, a written law or a natural relationship;
          (b) in the case of a child who is a descendant of
                Aboriginal people of Australia -- a person regarded
20              under the customary law or tradition of the child's
                community as the equivalent of a person mentioned
                in paragraph (a); or
          (c) in the case of a child who is a descendant of the
                indigenous inhabitants of the Torres Strait Islands --
25              a person regarded under the customary law or
                tradition of the Torres Strait Islands as the equivalent
                of a person mentioned in paragraph (a);
     "specified", in relation to a notice, means specified in the
          notice;
30   "work" includes practical training undertaken as part of an
          educational or vocational course.



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     5.         Managerial officers
          (1)   In this section --
                "managerial officer" has the meaning given to that term in the
                   Children and Community Services Act 2004 section 197.
5         (2)   Despite any other provision of this Act, a person who is a
                managerial officer in relation to a body corporate that holds a
                licence under the Children and Community Services Act 2004
                Part 8 --
                   (a) is taken for the purposes of this Act to carry on a
10                      child-related business; and
                  (b) if the person does not carry out any child-related work
                        as a managerial officer -- is taken for those purposes to
                        carry out child-related work in connection with a child
                        care service.

15   6.         Meaning of "child-related work"
          (1)   Subject to subsection (3), work is "child-related work" if --
                 (a) the usual duties of the work involve, or are likely to
                       involve, contact with a child in connection with --
                           (i) a child care service;
20                        (ii) a community kindergarten registered under the
                               School Education Act 1999 Part 5;
                         (iii) an educational institution for children;
                         (iv) a coaching or private tuition service of any kind,
                               but not including an informal arrangement
25                             entered into for private or domestic purposes;
                          (v) an arrangement for the accommodation or care of
                               children, whether in a residential facility or
                               private residence, but not including an informal
                               arrangement made by a parent of the child
30                             concerned or accommodation or care provided
                               by a relative of the child;


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        (vi)   a placement arrangement under the Children and
               Community Services Act 2004;
       (vii)   the performance by an officer, as defined in the
               Children and Community Services Act 2004
5              section 3, of a function given to the officer under
               that Act;
      (viii)   a detention centre, as defined in the Young
               Offenders Act 1994 section 3;
        (ix)   a community child health service;
10       (x)   a counselling or other support service;
        (xi)   a religious organisation;
       (xii)   a club, association or movement (including of a
               cultural, recreational or sporting nature and
               whether incorporated or not) with a significant
15             membership or involvement of children, but not
               including an informal arrangement entered into
               for private or domestic purposes;
      (xiii)   a ward of a public or private hospital in which
               children are ordinarily patients;
20    (xiv)    a baby sitting or child minding service, but not
               including an informal arrangement entered into
               for private or domestic purposes;
       (xv)    an overnight camp, regardless of the type of
               accommodation or how many children are
25             involved;
       (xvi)   a transport service specifically for children;
      (xvii)   a school crossing service, being a service
               provided to assist children to cross roads on their
               way to or from school;
30   (xviii)   a children's entertainment or party service; or
      (xix)    any other work of a kind prescribed by the
               regulations;
       or

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                 (b)    the work is the exercise or performance by a person of a
                        power or duty delegated to the person by the CEO under
                        section 45.
          (2)   For the purposes of subsection (1), "contact with a child" does
5               not include contact --
                  (a) between a person and a child who is employed by the
                        person; or
                 (b) between a person and a child who are both employed by
                        the same person,
10              if the contact is lawful and arises in the normal course of the
                child's employment.
          (3)   Subsection (1) does not apply to work that is carried out --
                 (a) on a voluntary basis by a child; or
                 (b) in circumstances, or by a person, prescribed by the
15                     regulations.
          (4)   Without limiting subsection (3)(b), the regulations may
                prescribe a person for the purposes of that provision by
                reference to a criminal record check (however described) made
                in respect of the person --
20                (a) under another Act prescribed by the regulations; or
                  (b) as prescribed by the regulations.

     7.         Meaning of "Class 1 offence" and "Class 2 offence"
          (1)   A "Class 1 offence" is --
                 (a) an offence against a provision listed in Schedule 1 (if the
25                    offence complies with any condition specified in that
                      Schedule relating to the age of the victim);
                 (b) an offence under a law of another jurisdiction the
                      elements of which, if they had occurred in Western
                      Australia, would have constituted an offence of a kind
30                    referred to in this subsection;



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                 (c)     an offence under a law of another jurisdiction that is
                         prescribed by the regulations to be a Class 1 offence;
                 (d)     an offence that, at the time it was committed --
                           (i) was a Class 1 offence for the purposes of this
5                               Act; or
                          (ii) in the case of an offence committed before the
                                commencement of this section -- was an offence
                                of a kind referred to in this subsection.
          (2)   A "Class 2 offence" is --
10               (a) an offence against a provision listed in Schedule 2 (if the
                      offence complies with any condition specified in that
                      Schedule relating to the age of the victim);
                 (b) an offence under a law of another jurisdiction the
                      elements of which, if they had occurred in Western
15                    Australia, would have constituted an offence of a kind
                      referred to in this subsection;
                 (c) an offence under a law of another jurisdiction that is
                      prescribed by the regulations to be a Class 2 offence;
                 (d) an offence of attempting, or of conspiracy or incitement,
20                    to commit an offence of a kind referred to in this
                      subsection or subsection (1);
                 (e) an offence that, at the time it was committed --
                         (i) was a Class 2 offence for the purposes of this
                              Act; or
25                      (ii) in the case of an offence committed before the
                              commencement of this section -- was an offence
                              of a kind referred to in this subsection.
     8.         References to convictions
          (1)   For the purposes of this Act, a reference to a conviction in
30              relation to an offence committed by a person is a reference to
                any of the following --
                  (a) a court making a formal finding of guilt in relation to the
                        offence;

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                (b)    a court convicting the person of the offence, if there has
                       been no formal finding of guilt before conviction;
                 (c)   a court accepting a plea of guilty from the person in
                       relation to the offence;
5               (d)    a court acquitting the person following a finding under
                       The Criminal Code section 27 that the person is not
                       guilty of the offence on account of unsoundness of mind
                       or an acquittal following an equivalent finding under the
                       laws of another jurisdiction.
10      (2)    For the purposes of this Act, a reference to a conviction includes
               a reference to a conviction that is a spent conviction.
        (3)    For the purposes of subsection (2), an offence becomes spent if,
               under a law in any jurisdiction, the person concerned is
               permitted not to disclose the fact that he or she was convicted or
15             found guilty of the offence.
        (4)    A reference to a conviction in this Act does not include a
               reference to a conviction that is subsequently quashed or set
               aside by a court.




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                          Assessment notices and negative notices         Part 2
                                 Application for assessment notice   Division 1
                                                                             s. 9



           Part 2 -- Assessment notices and negative notices
                 Division 1 -- Application for assessment notice
     9.          Application for assessment notice (child-related
                 employment)
5          (1)   A person who is, or is proposed to be, employed in child-related
                 employment by another person (the "employer") may apply to
                 the CEO for an assessment notice.
           (2)   The application is to be --
                  (a) in the approved form;
10                (b) signed by the applicant; and
                  (c) accompanied by the fee prescribed by the regulations.
           (3)   The approved form is to include provision for --
                  (a) identifying information to be given about the applicant;
                        and
15                (b) certification by the employer that the employer employs,
                        or proposes to employ, the applicant in child-related
                        employment.
           (4)   On receiving the application, the CEO may ask the applicant, by
                 written notice or otherwise, to provide any further information
20               or documents that the CEO reasonably needs to establish the
                 applicant's identity or for a proper consideration of the
                 application.

     10.         Application for assessment notice (child-related business)
           (1)   A person who carries on, or proposes to carry on, a child-related
25               business may apply to the CEO for an assessment notice.
           (2)   The application is to be --
                  (a) in the approved form;
                  (b) signed by the applicant; and
                  (c) accompanied by the fee prescribed by the regulations.

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     Division 1     Application for assessment notice
     s. 11



           (3)   The approved form is to include provision for identifying
                 information to be given about the applicant.
           (4)   On receiving the application, the CEO may ask the applicant, by
                 written notice or otherwise, to provide any further information
5                or documents that the CEO reasonably needs to establish the
                 applicant's identity or for a proper consideration of the
                 application.

     11.         Withdrawal of application for assessment notice
           (1)   An applicant for an assessment notice may withdraw the
10               application at any time before the assessment notice is issued to
                 the applicant.
           (2)   The applicant is taken to have withdrawn the application if --
                  (a) the CEO cannot establish with certainty the applicant's
                        identity;
15                (b) the CEO gives the applicant a written notice --
                           (i) that asks the applicant to provide, within a
                                reasonable specified time, specified information
                                or documents that the CEO reasonably needs to
                                establish the applicant's identity; and
20                        (ii) that informs the applicant that, if the applicant
                                does not comply with the request, the applicant's
                                application will be taken to have been
                                withdrawn;
                  (c) the applicant does not comply with the notice within the
25                      specified time; and
                  (d) the CEO gives the applicant a written notice stating that
                        the applicant is taken to have withdrawn the application.
           (3)   If --
                   (a)   the applicant is a person who is, or is proposed to be,
30                       employed in child-related employment by another
                         person; and


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                                                                             s. 12



                  (b)   the applicant withdraws the application or the CEO
                        gives the applicant a notice under subsection (2)(d),
                 the CEO is to give the other person a written notice stating that
                 the applicant has withdrawn, or is taken to have withdrawn, the
5                application, as the case requires.

      Division 2 -- Issue of assessment notices and negative notices
     12.         Decision on application for an assessment notice
           (1)   The CEO is to decide an application under section 9 or 10 in
                 accordance with this section --
10                 (a) by issuing an assessment notice to the applicant; or
                   (b) by issuing a negative notice to the applicant.
           (2)   The CEO is not to decide the application unless the CEO has
                 made a criminal record check in respect of the applicant.
           (3)   If the CEO is not aware of --
15                 (a) any offence of which the applicant has been convicted;
                         or
                   (b) any offence (other than an offence that is neither a
                         Class 1 offence nor a Class 2 offence) with which the
                         applicant has been charged,
20               the CEO is to issue an assessment notice to the applicant.
           (4)   If the CEO --
                   (a) is not aware of any offence of which the applicant has
                         been convicted; and
                   (b) is aware that the applicant has a non-conviction charge
25                       in respect of a Class 1 offence or a Class 2 offence,
                 the CEO is to issue an assessment notice to the applicant unless
                 the CEO is satisfied that, because of the particular
                 circumstances of the case, a negative notice should be issued to
                 the applicant.


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        (5)    If the CEO is aware of an offence (other than a Class 1 offence
               or a Class 2 offence) of which the applicant has been convicted,
               the CEO is to issue an assessment notice to the applicant unless
               the CEO is satisfied that, because of the particular
5              circumstances of the case, a negative notice should be issued to
               the applicant.
        (6)    If the CEO --
                 (a) is aware of a Class 1 offence (committed by the
                       applicant when a child) of which the applicant has been
10                     convicted;
                 (b) is aware of a Class 2 offence of which the applicant has
                       been convicted; or
                 (c) is aware that the applicant has a pending charge in
                       respect of a Class 1 offence or a Class 2 offence,
15             the CEO is to issue a negative notice to the applicant unless the
               CEO is satisfied that, because of the exceptional circumstances
               of the case, an assessment notice should be issued to the
               applicant.
        (7)    If the CEO is aware of a Class 1 offence (other than a Class 1
20             offence committed by the applicant when a child) of which the
               applicant has been convicted, the CEO is to issue a negative
               notice to the applicant.
        (8)    If subsection (4), (5) or (6) applies in respect of an offence, the
               CEO is to decide whether he or she is satisfied in relation to the
25             particular or exceptional circumstances of the case having
               regard to --
                 (a) the best interests of children;
                 (b) when the offence was committed or is alleged to have
                       been committed;
30               (c) the age of the applicant when the offence was
                       committed or is alleged to have been committed;
                 (d) the nature of the offence and any relevance it has to
                       child-related work;

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                                                                             s. 13



                  (e)    any information given by the applicant in, or in relation
                         to, the application;
                   (f)   anything else that the CEO reasonably considers
                         relevant to the decision.
5          (9)   On deciding the application --
                  (a) the CEO is to issue the assessment notice or the negative
                        notice, as the case requires, to the applicant; and
                  (b) if the CEO is aware that that applicant is, or is proposed
                        to be, employed in child-related employment by another
10                      person -- the CEO is to give a copy of the notice to the
                        other person.
      (10)       When a negative notice is issued to an applicant, the CEO is to
                 provide with it a written notice that --
                   (a) states the reasons for the CEO's decision on the
15                      application;
                   (b) states that the applicant may apply to the State
                        Administrative Tribunal, within 28 days after the date of
                        the negative notice, to have the decision reviewed; and
                   (c) explains how the application for the review is made.

20   13.         CEO to invite submission about criminal record and issue
                 interim negative notice
           (1)   If the CEO proposes or is required to decide an application
                 under section 12 by issuing a negative notice to the applicant --
                   (a) the CEO is to give the applicant a written notice that --
25                          (i) informs the applicant of the proposal or
                                requirement;
                           (ii) states the information about the applicant's
                                criminal record of which the CEO is aware; and
                          (iii) invites the applicant to make a submission to the
30                              CEO, in writing or in another form approved by
                                the CEO, within a specified time about the


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     s. 13



                              information and about the applicant's suitability
                              to be issued with an assessment notice;
                      and
                (b)   the CEO may issue an interim negative notice to the
5                     applicant.
        (2)    If the CEO is aware of a Class 1 offence (other than a Class 1
               offence committed by the applicant when a child) of which the
               applicant has been convicted, the CEO is to issue an interim
               negative notice to the applicant.
10      (3)    If the CEO --
                 (a) issues an interim negative notice to the applicant; and
                 (b) is aware that the applicant is, or is proposed to be,
                       employed in child-related employment by another
                       person,
15             the CEO is to give a copy of the notice to the other person.
        (4)    An interim negative notice has effect until the CEO decides the
               application and issues a negative notice or an assessment notice
               to the applicant, or the application is withdrawn.
        (5)    If the information specified in a notice under subsection (1)
20             about an applicant's criminal record includes a Class 1 offence
               (other than a Class 1 offence committed by the applicant when a
               child) of which the applicant has been convicted, the applicant
               may make a submission to the CEO under this section only if
               the applicant reasonably believes that the applicant's criminal
25             record does not include that conviction.
        (6)    The specified time referred to in subsection (1)(a)(iii) is to be
               reasonable and, in any case, at least 28 days after the CEO gives
               the applicant the notice.
        (7)    Before deciding the application, the CEO is to consider any
30             submission made by the applicant within the specified time.




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                                                                            s. 14



     14.         Duration of assessment notices and negative notices
           (1)   An assessment notice has effect for 3 years unless sooner
                 cancelled under this Act.
           (2)   A negative notice continues to have effect unless it is cancelled
5                under this Act.

     15.         Further assessment notice may be obtained
           (1)   If an assessment notice no longer has effect, or will expire
                 within a period of 3 months, the person to whom it was issued
                 may apply under Division 1 for a further assessment notice.
10         (2)   Section 12 applies to the application as if a reference in that
                 section to issuing an assessment notice were a reference to
                 issuing an assessment notice or a further assessment notice.

            Division 3 -- CEO may require assessment notice to be
                               applied for
15   16.         CEO may require certain employees to apply for assessment
                 notice
           (1)   If a person (the "employer") who employs another person (the
                 "employee") in child-related employment --
                   (a) reasonably suspects that the employee has been charged
20                        with or convicted of an offence; and
                   (b) reasonably believes that the charge or conviction makes
                          it inappropriate for the employee to continue to carry out
                          child-related work,
                 the employer may give written notice to the CEO of the
25               suspicion and belief and the grounds on which the suspicion and
                 belief are held.
           (2)   The CEO may ask the employer, by written notice or otherwise,
                 to provide further information in relation to those grounds.



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     s. 17



           (3)   If the CEO is satisfied that the employer has reasonable grounds
                 for holding the suspicion and belief referred to in subsection (1),
                 the CEO may give the employee a written notice requiring the
                 employee to apply, within 10 days after the date of the notice,
5                for an assessment notice.
           (4)   Subsection (3) applies to a person whether or not the person has
                 a current assessment notice.
           (5)   The employee must comply with a notice given to the employee
                 under subsection (3) within the period referred to in that
10               subsection.
                 Penalty: a fine of $1 000.
           (6)   It is a defence to a charge of an offence under subsection (5) to
                 prove that, at the time the offence is alleged to have been
                 committed, the person was not employed in child-related
15               employment.

     17.         CEO may require certain people who carry out
                 child-related work to apply for assessment notice
           (1)   If the Commissioner reasonably believes that a person charged
                 with or convicted of a Class 1 offence or a Class 2 offence is --
20                 (a) a person in respect of whom the CEO may ask for
                         information under section 34; or
                   (b) a person who carries out child-related work,
                 the Commissioner may give the CEO notice of --
                   (c) the person's name and address;
25                 (d) the person's date of birth;
                   (e) the offence with which the person has been charged or
                        of which the person has been convicted;
                    (f) the details of the offence; and
                   (g) the date of the charge or conviction.
30         (2)   The Commissioner may give notice under subsection (1) despite
                 another Act or law.

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                                                                            s. 18



           (3)   If the CEO is satisfied that there are reasonable grounds for
                 believing that a person in respect of whom the CEO has been
                 given notice under subsection (1) or information under
                 section 34 --
5                  (a) carries out child-related work; and
                   (b) has been charged with or convicted of a Class 1 offence
                         or a Class 2 offence, being a charge or conviction of
                         which the CEO was not previously aware,
                 the CEO may give the person a written notice requiring the
10               person to apply, within 10 days after the date of the notice, for
                 an assessment notice.
           (4)   Subsection (3) applies to a person whether or not the person has
                 a current assessment notice.
           (5)   A person must comply with a notice given to the person under
15               subsection (3) within the period referred to in that subsection.
                 Penalty: a fine of $1 000.
           (6)   It is a defence to a charge of an offence under subsection (5) to
                 prove that, at the time the offence is alleged to have been
                 committed, the person was not carrying out child-related work.

20   18.         CEO may issue negative notice if assessment notice not
                 applied for
           (1)   If a person does not comply with a notice given to the person
                 under section 16(3) or 17(3) within the period referred to in that
                 provision, the CEO may issue a negative notice to the person.
25         (2)   If the CEO --
                   (a) issues a negative notice under subsection (1) to a person
                         who is employed in child-related employment; and
                   (b) is aware of the person's employer,
                 the CEO is to give the employer written notice of having issued
30               a negative notice to the person.


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     Part 2         Assessment notices and negative notices
     Division 4     Cancellation of assessment notices and negative notices
     s. 19



                 Division 4 -- Cancellation of assessment notices and
                                 negative notices
     19.          Applications for cancellation of negative notice
           (1)    A person to whom a negative notice has been issued may apply
5                 to the CEO for the notice to be cancelled.
           (2)    The application cannot be made sooner than 3 years after --
                   (a) the negative notice was issued; or
                   (b) if the person has previously applied under this
                         section -- the most recent previous application.
10         (3)    Subsection (2) does not apply if --
                   (a) a Class 1 offence or a Class 2 offence with which the
                         person was charged when the negative notice was
                         issued, or the previous application was made, is later
                         disposed of by a court otherwise than by way of a
15                       conviction; or
                   (b) any offence of which the person was convicted when the
                         negative notice was issued, or the previous application
                         was made, is later quashed or set aside on appeal.
           (4)    Subsection (2)(a) does not apply if the negative notice was
20                issued under section 18.
           (5)    The application is to be --
                   (a) in the approved form;
                   (b) signed by the applicant; and
                   (c) accompanied by the fee prescribed by the regulations.
25         (6)    The approved form is to include provision for identifying
                  information to be given about the applicant.
           (7)    The person may, in the application, state any information or
                  make any submission that relates to --
                   (a) the person's suitability to carry out child-related work;
30                       or

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             Cancellation of assessment notices and negative notices  Division 4
                                                                             s. 20



                  (b)    any change in the person's circumstances,
                 unless the person has previously stated that information or made
                 that submission in or in respect of an application under this Act.
           (8)   Section 12(2) to (8) apply to the application as if --
5                 (a) the application were an application for an assessment
                        notice;
                  (b) a reference in those provisions to issuing an assessment
                        notice were a reference to granting the application; and
                  (c) a reference in those provisions to issuing a negative
10                      notice were a reference to refusing the application.
           (9)   If the CEO grants the application, the CEO --
                   (a)   is to cancel the negative notice and give written notice to
                         the applicant accordingly; and
                  (b)    if the person so requests -- is to issue an assessment
15                       notice to the person.
      (10)       If the CEO refuses the application, the CEO is to give the
                 person a written notice that --
                   (a) states the reasons for the CEO's decision on the
                         application;
20                 (b) states that the person may apply to the State
                         Administrative Tribunal, within 28 days after the date of
                         the notice, to have the decision reviewed; and
                   (c) explains how the application for the review is made.

     20.         Cancellation of notice because of wrong or incomplete
25               information
           (1)   In this section --
                 "correct notice" means --
                      (a) in relation to the cancellation of an assessment
                             notice -- a negative notice; or



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     Part 2         Assessment notices and negative notices
     Division 4     Cancellation of assessment notices and negative notices
     s. 21



                     (b)   in relation to the cancellation of a negative notice --
                           an assessment notice.
           (2)   The CEO may cancel an assessment notice or negative notice
                 (the "first notice") and substitute the correct notice if the CEO
5                is satisfied that --
                    (a) the decision on the application for the first notice was
                          based on wrong or incomplete information; and
                   (b) based on the correct or complete information, the CEO
                          should issue the correct notice.
10         (3)   If the correct notice to be substituted is a negative notice, the
                 CEO is to comply with section 13 before the correct notice may
                 be substituted.
           (4)   Without limiting subsection (2), an application for the
                 cancellation of a negative notice may be made under this section
15               by the person to whom it was issued.
           (5)   Section 19 does not apply to the application if the CEO is
                 satisfied under subsection (2) that an assessment notice should
                 be issued to the applicant.
           (6)   The CEO is to issue the correct notice to the person to whom the
20               first notice was issued and, if the CEO is aware that that person
                 is, or is proposed to be, employed in child-related employment
                 by another person, the CEO is to give a copy of the correct
                 notice to the other person.

     21.         Issue of notice cancels any previous notice
25         (1)   An assessment notice issued to a person cancels any current
                 assessment notice, negative notice or interim negative notice
                 that has previously been issued to the person.
           (2)   A negative notice issued to a person cancels any current
                 assessment notice or interim negative notice that has previously
30               been issued to the person.



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                           Prohibitions relating to child-related work Division 5
                                                                            s. 22



           (3)   An interim negative notice issued to a person cancels any
                 current assessment notice that has previously been issued to the
                 person.

            Division 5 -- Prohibitions relating to child-related work
5    22.         Employers not to employ certain people in child-related
                 employment
           (1)   In this section --
                 "employer" means a person who employs, or proposes to
                      employ, another person in child-related employment.
10         (2)   An employer must not employ a person in child-related
                 employment if --
                   (a) the employer --
                           (i) is aware of a Class 1 offence or a Class 2 offence
                                 of which the person has been convicted; or
15                        (ii) is aware that the person has a pending charge in
                                 respect of a Class 1 offence or a Class 2 offence;
                        and
                  (b) the person does not have a current assessment notice and
                        has not made an application for an assessment notice
20                      that is pending.
                 Penalty: a fine of $60 000 and imprisonment for 5 years.
           (3)   An employer must not employ a person in child-related
                 employment if the employer is aware that a negative notice or
                 an interim negative notice has been issued to the person and is
25               current.
                 Penalty: a fine of $60 000 and imprisonment for 5 years.
           (4)   An employer must not employ a person in child-related
                 employment in connection with a child care service if the
                 person does not have a current assessment notice and has not
30               made an application for an assessment notice that is pending.
                 Penalty: a fine of $12 000 and imprisonment for 12 months.

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     Division 5     Prohibitions relating to child-related work
     s. 23



           (5)   An employer must not employ a person in child-related
                 employment if the employer is aware that the person has
                 withdrawn an application for an assessment notice.
                 Penalty: a fine of $12 000 and imprisonment for 12 months.
5          (6)   An employer must not employ a person in child-related
                 employment if --
                   (a) the person has been employed by the employer in that
                        employment for more than 5 days in a calendar year;
                        and
10                (b) the person does not have a current assessment notice and
                        has not made an application for an assessment notice
                        that is pending.
                 Penalty: a fine of $12 000 and imprisonment for 12 months.
           (7)   Subsection (6) does not apply in relation to the employment of a
15               person if subsection (2), (3), (4) or (5) applies in relation to that
                 employment.
           (8)   A person charged with an offence under this section may be
                 convicted of another offence under this section if that offence is
                 established by the evidence.

20   23.         People issued with negative notice or interim negative notice
                 not to carry out child-related work
                 If a negative notice or an interim negative notice has been
                 issued to a person and is current, the person must not --
                   (a) be employed in child-related employment; or
25                 (b) carry on a child-related business.
                 Penalty: a fine of $60 000 and imprisonment for 5 years.

     24.         People without current assessment notice not to carry out
                 child-related work
                 A person who does not have a current assessment notice must
30               not --
                   (a) be employed in child-related employment; or

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                              Review by State Administrative Tribunal   Division 6
                                                                               s. 25



                  (b) carry on a child-related business.
                 Penalty: a fine of $60 000 and imprisonment for 5 years.

     25.         Defences for section 24
           (1)   It is a defence to a charge of an offence under section 24 to
5                prove that --
                   (a)     at the time the offence is alleged to have been
                           committed, the person charged had applied for an
                           assessment notice and the application was pending; and
                  (b)      the application was not later withdrawn.
10         (2)   Subsection (1) does not apply to a person convicted of a Class 1
                 offence (other than a Class 1 offence committed by the person
                 when a child) at the time the offence is alleged to have been
                 committed.
           (3)   It is a defence to a charge of an offence under section 24 to
15               prove that the person charged was employed in child-related
                 employment or carried on a child-related business, as the case
                 requires, on no more than 5 days during the calendar year in
                 which the offence is alleged to have occurred.
           (4)   Subsection (3) does not apply to a person --
20                (a) convicted of a Class 1 offence (other than a Class 1
                        offence committed by the person when a child); or
                  (b) carrying out child-related work in connection with a
                        child care service.

             Division 6 -- Review by State Administrative Tribunal
25   26.         Review by State Administrative Tribunal
           (1)   In this section --
                 "defined period" means --
                     (a) in relation to a decision by the CEO to issue a
                           negative notice to a person -- 28 days after the date
30                         of the negative notice; or

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     Division 6     Review by State Administrative Tribunal
     s. 26



                   (b)   in relation to a decision by the CEO not to grant an
                         application for a negative notice issued to a person to
                         be cancelled -- 28 days after the date of the notice
                         given to the person under section 19(10).
5       (2)    A person may apply to the State Administrative Tribunal within
               the defined period for a review of a decision by the CEO --
                 (a) to issue a negative notice to the person; or
                 (b) not to grant an application for a negative notice issued to
                       the person to be cancelled.
10      (3)    A decision that is the subject of an application under
               subsection (2) continues to have effect pending the outcome of
               the review, unless the State Administrative Tribunal orders
               otherwise.




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                 Changes in criminal record and criminal record checks     Part 3
                                  Relevant changes in criminal record  Division 1
                                                                             s. 27



           Part 3 -- Changes in criminal record and criminal
                           record checks
                 Division 1 -- Relevant changes in criminal record
     27.          Meaning of relevant change in criminal record and
5                 requirement to give notice of that change
           (1)    For the purposes of this Division, there is a relevant change in a
                  person's criminal record, whether or not the person has a
                  criminal record, if the person is charged with or convicted of a
                  Class 1 offence or a Class 2 offence.
10         (2)    A requirement imposed on a person under this Division to give
                  notice about a relevant change in a person's criminal record
                  does not require the person to give any information about the
                  change except that the change has occurred.

     28.          Relevant change in criminal record of certain applicants
15         (1)    This section applies to a person if --
                   (a) the person has applied to the CEO --
                            (i) for an assessment notice; or
                           (ii) for a negative notice issued to the person to be
                                 cancelled;
20                        and
                   (b) the application is pending.
           (2)    The person must give written notice to the CEO of a relevant
                  change in the person's criminal record as soon as is practicable
                  after the change occurs.
25                Penalty: a fine of $60 000 and imprisonment for 5 years.

     29.          Relevant change in criminal record of people employed in
                  child-related employment
           (1)    A person employed in child-related employment must give the
                  person's employer written notice of a relevant change in the

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     Part 3         Changes in criminal record and criminal record checks
     Division 1     Relevant changes in criminal record
     s. 30



                 person's criminal record as soon as is practicable after the
                 change occurs.
                 Penalty: a fine of $60 000 and imprisonment for 5 years.
           (2)   The employer must give the CEO written notice of a relevant
5                change in the employee's criminal record as soon as is
                 practicable after the employer is given notice under
                 subsection (1).
                 Penalty: a fine of $24 000 and imprisonment for 2 years.

     30.         Relevant change in criminal record of people carrying on
10               child-related business
                 A person carrying on a child-related business must give the
                 CEO written notice of a relevant change in the person's criminal
                 record as soon as is practicable after the change occurs.
                 Penalty: a fine of $60 000 and imprisonment for 5 years.

15   31.         Relevant change in criminal record of other people
           (1)   This section applies to a person if --
                  (a) the person has a current assessment notice and is not
                         employed in child-related employment or carrying on a
                         child-related business; and
20                (b) there has been a relevant change in the person's criminal
                         record since the assessment notice was issued to the
                         person.
           (2)   A person to whom this section applies must not be employed in
                 child-related employment or carry on a child-related business
25               unless --
                   (a) the person has been issued with a further assessment
                         notice; or
                   (b) the person has applied for a further assessment notice
                         and the application is pending.
30               Penalty: a fine of $60 000 and imprisonment for 5 years.


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                                  Relevant changes in criminal record  Division 1
                                                                             s. 32



           (3)    A person to whom subsection (2)(b) applies who is offered
                  child-related employment must give the person's proposed
                  employer written notice that --
                    (a) there has been a relevant change in the person's criminal
5                         record since the person's current assessment notice was
                          issued; and
                    (b) the person has applied for a further assessment notice
                          and the application is pending.
                  Penalty: a fine of $60 000 and imprisonment for 5 years.

10   32.          CEO to treat notice of relevant change in criminal record as
                  application for assessment notice
           (1)    The CEO is to treat a notice given to the CEO under
                  section 29(2) or 30 as an application for an assessment notice by
                  the person to whose criminal record there has been a relevant
15                change.
           (2)    If the person to whose criminal record there has been a relevant
                  change has a current assessment notice, section 12 applies to the
                  application as if a reference in that section to issuing an
                  assessment notice were a reference to issuing an assessment
20                notice or a further assessment notice.

     33.          People not to start or continue child-related work if
                  convicted of Class 1 offence
                  If the relevant change in a person's criminal record is the
                  person's conviction of a Class 1 offence (other than a Class 1
25                offence committed by the person when a child), the person must
                  not --
                    (a) be employed in child-related employment; or
                    (b) carry on a child-related business.
                  Penalty: a fine of $60 000 and imprisonment for 5 years.




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     Part 3         Changes in criminal record and criminal record checks
     Division 2     Criminal record checks
     s. 34



                        Division 2 -- Criminal record checks
     34.         CEO may carry out criminal record check
           (1)   In this section --
                 "authorised person" means --
5                    (a) the chief executive officer of the department of the
                           Public Service principally assisting the Minister in
                           the administration of the Sentencing Act 1995;
                     (b) the Commissioner; or
                     (c) the Director of Public Prosecutions under the
10                         Director of Public Prosecutions Act 1991;
                 "criminal records agency" means --
                     (a) the Commissioner of the Australian Federal Police;
                     (b) the Commissioner (however designated) of the police
                           force of another State or a Territory or another
15                         country; or
                     (c) a person or body that is --
                              (i) established under the law of another State, a
                                  Territory or the Commonwealth; and
                             (ii) prescribed by the regulations for the purposes
20                                of this definition.
           (2)   This section applies in respect of a person --
                  (a)    who has a current assessment notice;
                  (b)    who has applied to the CEO for an assessment notice;
                  (c)    who has applied to the CEO for a negative notice to be
25                       cancelled; or
                  (d)    if the CEO is given a notice that is to be treated under
                         section 32(1) as an application by the person for an
                         assessment notice.




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           Changes in criminal record and criminal record checks     Part 3
                                         Criminal record checks  Division 2
                                                                       s. 34



     (3)    The CEO may ask the Commissioner or a criminal records
            agency for information or access to the respective records of the
            Commissioner or the criminal records agency --
              (a) to determine whether the person has a criminal record;
5                  and
              (b) if the person has a criminal record, to obtain details of
                   the criminal record.
     (4)    If the person has a criminal record, the CEO may ask an
            authorised person or a criminal records agency for information
10          about the circumstances of a conviction or charge mentioned in
            the criminal record.
     (5)    An authorised person may comply with a request made by the
            CEO under this section despite another Act or law.




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     Part 4         General

     s. 35



                                 Part 4 -- General
     35.         False or misleading information
                 A person must not give information for the purposes of this Act
                 that the person knows to be false or misleading in a material
5                particular to --
                   (a) a person who employs, or proposes to employ, the
                         person in child-related employment; or
                   (b) the CEO.
                 Penalty: a fine of $24 000 and imprisonment for 2 years.

10   36.         Return of assessment notice to CEO
                 A person must return to the CEO an assessment notice issued to
                 the person as soon as is practicable after --
                   (a) the person is convicted of a Class 1 offence (other than a
                         Class 1 offence committed by the person when a child);
15                       or
                   (b) the CEO issues a negative notice or an interim negative
                         notice to the person.
                 Penalty: a fine of $12 000 and imprisonment for 12 months.

     37.         Exchange of information with corresponding authorities
20         (1)   In this section --
                 "corresponding authority" means a person or body in another
                     jurisdiction with functions that correspond to the functions
                     of the CEO under this Act.
           (2)   The CEO may disclose to a corresponding authority information
25               obtained under this Act that relates to a person's criminal record
                 or to an application made by, or a notice issued to, a person
                 under this Act.




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                                                         General          Part 4

                                                                                s. 38



           (3)   The CEO may ask a corresponding authority to disclose to the
                 CEO information obtained by the corresponding authority
                 that --
                   (a) corresponds to the information referred to in
5                       subsection (2); and
                   (b) relates to a person who has made an application, or been
                        issued with a notice, under this Act.

     38.         CEO may disclose to certain bodies information about issue
                 of negative notices and interim negative notices
10         (1)   In this section --
                 "Department" means the department of the Public Service
                     principally assisting the Minister in the administration of
                     the Children and Community Services Act 2004;
                 "public authority" means --
15                   (a) a department of the Public Service; or
                     (b) a body, whether incorporated or not, that is
                           established or continued for a public purpose under a
                           written law and that, under the authority of a written
                           law, performs a statutory function on behalf of the
20                         State.
           (2)   If the CEO considers that it is in the public interest to do so, the
                 CEO may give written notice to a public authority prescribed by
                 the regulations that a negative notice or an interim negative
                 notice has been issued to a person.
25         (3)   The CEO may give written notice to the chief executive officer
                 of the Department that a negative notice or an interim negative
                 notice has been issued to a person if the CEO reasonably
                 believes that the person --
                   (a) holds a licence under the Children and Community
30                       Services Act 2004 Part 8; or




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     Working with Children (Criminal Record Checking) Bill 2004
     Part 4         General

     s. 39



                  (b)    is a nominated supervising officer, a supervising officer
                         or a managerial officer, as defined in section 197 of that
                         Act.
           (4)   If --
5                  (a)   the CEO has given notice in relation to a person under
                         subsection (2) or (3); and
                  (b)    subsequently --
                            (i) if that notice related to the issue of a negative
                                notice to the person -- the negative notice is
10                              cancelled; or
                           (ii) an assessment notice is issued to the person,
                 the CEO is to give written notice of that fact to the public
                 authority or the chief executive officer of the Department, as the
                 case requires.

15   39.         Confidentiality of information
                 A person who is or has been engaged in the performance of
                 functions under this Act must not, directly or indirectly, disclose
                 or make use of information obtained in the course of performing
                 those functions except --
20                 (a) for the purpose of, or in connection with, performing
                         functions under this Act;
                   (b) for the purpose of the investigation of a suspected
                         offence under this Act or the conduct of proceedings
                         against a person for an offence under this Act;
25                 (c) as required or allowed under this Act or another written
                         law; or
                   (d) with the written consent of the Minister or the person to
                         whom the information relates.
                 Penalty: a fine of $24 000 and imprisonment for 2 years.




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                                                         General          Part 4

                                                                                s. 40



     40.         Protection from liability for wrongdoing
           (1)   A person does not incur civil liability for anything that the
                 person has done in good faith in the performance or purported
                 performance of a function under this Act.
5          (2)   The protection given by subsection (1) applies even though the
                 thing done as described in that subsection may have been
                 capable of being done whether or not this Act had been enacted.
           (3)   The State is also relieved of any liability that it might otherwise
                 have had for another person having done anything as described
10               in subsection (1).
           (4)   In this section, a reference to the doing of anything includes a
                 reference to the omission to do anything.

     41.         Employer to comply with Act despite other laws etc.
           (1)   If it would be a contravention of a provision of this Act for a
15               person (the "employer") to employ another person in
                 child-related employment, the employer is to comply with the
                 provision despite another Act or law or any industrial award,
                 order or agreement.
           (2)   The employer does not commit an offence or incur any liability
20               because, in complying with the provision, the employer does not
                 start or continue to employ the person in child-related
                 employment.
           (3)   Nothing in this section operates to affect a person's right to seek
                 or obtain a remedy under the Industrial Relations Act 1979
25               unless --
                   (a) the remedy is for the dismissal of the person by the
                         employer;
                   (b) the reason the employer dismissed the person was to
                         comply with this Act; and
30                 (c) the grounds on which the person seeks the remedy relate
                         to the fact that the person was dismissed for that reason.


                                                                             page 35
     Working with Children (Criminal Record Checking) Bill 2004
     Part 4         General

     s. 42



     42.         CEO may require information to confirm compliance with
                 Act
           (1)   In this section --
                 "regulated person" means a person --
5                     (a) who employs another person in child-related
                             employment; or
                      (b) who carries on a child-related business.
           (2)   The CEO may require a regulated person, by written notice or
                 otherwise, to provide, within a reasonable specified time,
10               specified information or documents that the CEO reasonably
                 needs to establish that the regulated person has complied with
                 this Act.
           (3)   A regulated person who does not provide the specified
                 information or documents within the specified time commits an
15               offence.
                 Penalty: a fine of $12 000 and imprisonment for 12 months.

     43.         Liability of partners for certain offences
           (1)   If --
                   (a)   a breach of a provision of this Act by a person (the
20                       "employer") who employs, or proposes to employ,
                         another person in child-related employment is an
                         offence; and
                  (b)    the employer that breaches the provision is a
                         partnership,
25               the offence is taken to have been committed by each of the
                 partners in the partnership.
           (2)   Subsection (1) does not apply to a partner who proves that --
                  (a) the offence was committed without the partner's consent
                        or connivance; and
30                (b) the partner exercised all due diligence to prevent the
                        commission of the offence that ought to have been

     page 36
                      Working with Children (Criminal Record Checking) Bill 2004
                                                         General          Part 4

                                                                               s. 44



                         exercised having regard to the nature of the partner's
                         functions and to all the circumstances.

     44.         Evidentiary matters
           (1)   In proceedings for an offence against this Act, an allegation in
5                the complaint of any of the following matters is, in the absence
                 of evidence to the contrary, taken to be proved --
                   (a) that at a specified time a specified person did not have a
                         current assessment notice;
                   (b) that at a specified time a negative notice or an interim
10                       negative notice had been issued to a specified person
                         and was current.
           (2)   In proceedings for an offence against subsection (2), (3) or (5)
                 of section 22, an allegation in the complaint that an employer
                 was aware of a specified matter referred to in that subsection is,
15               in the absence of evidence to the contrary, taken to be proved.
           (3)   In proceedings for an offence against this Act, an assessment
                 notice, negative notice, interim negative notice or other notice
                 issued under this Act may be proved by tendering a copy of it
                 certified by the CEO to be a true copy of the original.
20         (4)   Unless the contrary is proved, it is to be presumed that a
                 document purporting to have been signed by the CEO was
                 signed by a person who at the time was the CEO.
           (5)   Unless the contrary is proved, it is to be presumed that a
                 document purporting to have been signed by a delegate of the
25               CEO was signed by a person who at the time was a delegate of
                 the CEO and was authorised to sign it.
           (6)   This section is in addition to, and does not affect the operation
                 of, the Evidence Act 1906.




                                                                            page 37
     Working with Children (Criminal Record Checking) Bill 2004
     Part 4         General

     s. 45



     45.         Delegation
           (1)   The CEO may delegate to a public sector employee or, with the
                 approval of the Minister, another person any power or duty of
                 the CEO under another provision of this Act.
5          (2)   In subsection (1) --
                 "public sector employee" means an employee as defined in the
                      Public Sector Management Act 1994 section 3(1);
           (3)   The delegation is to be in writing signed by the CEO.
           (4)   A person to whom a power or duty is delegated under this
10               section cannot subdelegate that power or duty unless the person
                 is expressly authorised by the CEO to do so.
           (5)   A person exercising or performing a power or duty that has been
                 delegated to the person under this section is taken to do so in
                 accordance with the terms of the delegation unless the contrary
15               is shown.
           (6)   Nothing in this section limits the ability of the CEO to perform
                 a function through an officer of the Department or an agent.

     46.         Regulations
           (1)   The Governor may make regulations prescribing all matters that
20               are required or permitted by this Act to be prescribed, or are
                 necessary or convenient to be prescribed for giving effect to the
                 purposes of this Act.
           (2)   Without limiting subsection (1), the regulations may --
                  (a) provide for the receipt and storage of information
25                     obtained under this Act that relates to a person's
                       criminal record and the restriction of access to that
                       information; and
                  (b) create offences and provide, in respect of an offence so
                       created, for the imposition of a penalty not exceeding
30                     $6 000.


     page 38
                      Working with Children (Criminal Record Checking) Bill 2004
                                                         General          Part 4

                                                                                s. 47



    47.         Minister to review and report on Act
          (1)   The Minister is to carry out a review of the operation and
                effectiveness of this Act as soon as is practicable after the fifth
                anniversary of the commencement of this section.
5         (2)   The Minister is to prepare a report based on the review and, as
                soon as is practicable after the report is prepared, is to cause it
                to be laid before each House of Parliament.




                                                                             page 39
     Working with Children (Criminal Record Checking) Bill 2004
     Part 5         Consequential amendments to the Children and Community
                    Services Act 2004

     s. 48


      Part 5 -- Consequential amendments to the Children
               and Community Services Act 2004
     48.         The Act amended
                 The amendments in this Part are to the Children and Community
5                Services Act 2004*.
                 [* Act No. 34 of 2004.]

     49.         Section 197 amended
           (1)   Section 197 is amended by inserting in the appropriate
                 alphabetical positions the following definitions --
10               "
                       "assessment notice" has the meaning given to that
                           term in the Working with Children (Criminal
                           Record Checking) Act 2004 section 4;
                       "interim negative notice" has the meaning given to
15                         that term in the Working with Children (Criminal
                           Record Checking) Act 2004 section 4;
                       "negative notice" has the meaning given to that term
                           in the Working with Children (Criminal Record
                           Checking) Act 2004 section 4;
20                                                                             ".
           (2)   Section 197 is amended in the definition of "managerial officer"
                 by deleting "corporate applicant," and inserting instead --
                 "   body corporate other than a public authority,   ".

     50.         Section 207 amended
25               Before section 207(2)(a) the following paragraph is inserted --
                      "
                          (aa)   has a current assessment notice;
                                                                               ".



     page 40
                  Working with Children (Criminal Record Checking) Bill 2004
       Consequential amendments to the Children and Community         Part 5
                                              Services Act 2004

                                                                           s. 51


     51.     Section 208 amended
             After section 208(2)(b) the following paragraph is inserted --
                 "
                     (ba)   the nominated supervising officer and each
5                           managerial officer have a current assessment
                            notice;
                                                                               ".

     52.     Section 209 amended
             After section 209(2)(b) the following paragraph is inserted --
10               "
                     (ba)   the nominated supervising officer has a current
                            assessment notice;
                                                                               ".

     53.     Section 220 amended
15           Section 220(1) is amended after paragraph (b) by deleting "or"
             and inserting --
                 "
                     (ba)   the licensee has contravened the Working with
                            Children (Criminal Record Checking) Act 2004
20                          section 22;
                     (bb)   if the licensee is an individual -- the licensee
                            has been issued with an interim negative notice;
                     (bc)   if the licensee is a body corporate other than a
                            public authority -- the supervising officer or a
25                          managerial officer has been issued with an
                            interim negative notice;
                     (bd)   if the licensee is a public authority -- the
                            supervising officer has been issued with an
                            interim negative notice; or
30                                                                             ".



                                                                       page 41
     Working with Children (Criminal Record Checking) Bill 2004
     Part 5         Consequential amendments to the Children and Community
                    Services Act 2004

     s. 54


     54.       Section 221 amended
               Section 221(1) is amended by deleting "section 220(1)(c)," and
               inserting instead --
               "   section 220(1)(ba), (bb), (bc), (bd) or (c),   ".

5    55.       Section 224 amended
               Section 224(1) is amended after paragraph (c) by deleting "or"
               and inserting --
                    "
                        (ca)   the licensee has contravened the Working with
10                             Children (Criminal Record Checking) Act 2004
                               section 22, whether or not the licence is or has
                               been suspended on the grounds of that
                               contravention;
                        (cb)   there are reasonable grounds for believing
15                             that --
                                  (i) if the licensee is an individual -- the
                                       licensee has been issued with a negative
                                       notice;
                                 (ii) if the licensee is a body corporate other
20                                     than a public authority -- the
                                       supervising officer or a managerial
                                       officer has been issued with a negative
                                       notice; or
                                (iii) if the licensee is a public authority --
25                                     the supervising officer has been issued
                                       with a negative notice;
                               or
                                                                                  ".




     page 42
                      Working with Children (Criminal Record Checking) Bill 2004
                                            Transitional provisions       Part 6

                                                                              s. 56



                      Part 6 -- Transitional provisions
     56.         Terms used in this Part
                 In this Part --
                 "commencement day" means the day on which section 24
5                    comes into operation.

     57.         People carrying on a child-related business
           (1)   Until the day prescribed by the regulations for the purposes of
                 this section, section 24(b) does not apply to a person who
                 carries on a child-related business.
10         (2)   Different days may be prescribed by the regulations for the
                 purposes of subsection (1) by reference to the following --
                   (a) the kind of child-related work carried out by the person;
                  (b) the kind of person who carries out child-related work;
                   (c) the kind of place where child-related work is carried out
15                      by the person;
                  (d) whether the person is a continuing operator or a new
                        operator.
           (3)   In subsection (2) --
                 "continuing operator" means a person --
20                 (a) who carried on a child-related business immediately
                         before the commencement day; and
                   (b) who continues to carry on that same business;
                 "new operator" means a person who starts to carry on a
                      child-related business on or after the commencement day
25                    (whether or not the person has ever carried on a
                      child-related business before that day).




                                                                          page 43
     Working with Children (Criminal Record Checking) Bill 2004
     Part 6         Transitional provisions

     s. 58



     58.         Volunteers continuing in child-related employment
           (1)   In this section --
                 "continuing volunteer" means a person --
                     (a) who was employed on a voluntary basis in
5                         child-related employment by another person
                          immediately before the commencement day; and
                     (b) who continues to be employed on that basis in that
                          employment by that person.
           (2)   Until the day prescribed by the regulations for the purposes of
10               this subsection, sections 22(6) and 24(a) do not apply in relation
                 to a person being employed in child-related employment as a
                 continuing volunteer.
           (3)   Different days may be prescribed by the regulations for the
                 purposes of subsection (2) by reference to the ages of the
15               children in respect of whom child-related work is carried out by
                 a continuing volunteer.

     59.         Ministers of religion etc. continuing in child-related
                 employment
           (1)   In this section --
20               "continuing minister of religion" means a person --
                      (a) who was employed in child-related employment by
                             another person immediately before the
                             commencement day as a minister of religion or in any
                             other capacity for the purposes of a religious
25                           organisation; and
                      (b) who continues to be employed in that employment by
                             that person in that capacity.
           (2)   Until the day prescribed by the regulations for the purposes of
                 this subsection, sections 22(6) and 24(a) do not apply in relation
30               to a person being employed in child-related employment as a
                 continuing minister of religion.


     page 44
                      Working with Children (Criminal Record Checking) Bill 2004
                                            Transitional provisions       Part 6

                                                                              s. 60



     60.         Other people in child-related employment
           (1)   This section does not apply to a person to whom section 58
                 or 59 applies.
           (2)   Until the day prescribed by the regulations for the purposes of
5                this subsection, sections 22(6) and 24(a) do not apply in relation
                 to a person being employed in child-related employment.
           (3)   Different days may be prescribed by the regulations for the
                 purposes of subsection (2) by reference to the following --
                   (a) the kind of child-related work carried out by the person;
10                (b) the kind of person who carries out child-related work;
                   (c) the kind of place where child-related work is carried out
                        by the person;
                  (d) whether the person is a continuing employee or a new
                        employee;
15                 (e) whether a criminal record check (however described)
                        has been made in respect of the person --
                           (i) under another Act; or
                          (ii) as prescribed by the regulations.
           (4)   In subsection (3) --
20               "continuing employee" means a person --
                     (a) who was employed in child-related employment by
                           another person immediately before the
                           commencement day; and
                     (b) who continues to be employed in that employment by
25                         that person;
                 "new employee" means a person who starts to be employed in
                     child-related employment on or after the commencement
                     day (whether or not the person has ever been employed in
                     child-related employment before that day).




                                                                           page 45
     Working with Children (Criminal Record Checking) Bill 2004
     Part 6         Transitional provisions

     s. 61



     61.         Transitional regulations
           (1)   If this Part does not provide sufficiently for a matter or issue of
                 a transitional nature that arises as a result of the coming into
                 operation of this Act, the Governor may make regulations
5                prescribing all matters that are required, necessary or convenient
                 to be prescribed for providing for the matter or issue.
           (2)   Regulations made under subsection (1) may provide that
                 specified provisions of this Act --
                   (a) do not apply; or
10                 (b) apply with specified modifications,
                 to or in relation to any specified person, matter or issue.
           (3)   If regulations made under subsection (1) provide that a specified
                 state of affairs is taken to have existed, or not to have existed,
                 on and from a day that is earlier than the day on which the
15               regulations are published in the Gazette but not earlier than the
                 commencement day, the regulations have effect according to
                 their terms.
           (4)   In subsections (2) and (3) --
                 "specified" means specified or described in the regulations.
20         (5)   If regulations contain a provision referred to in subsection (3),
                 the provision does not operate so as --
                   (a) to affect in a manner prejudicial to any person (other
                         than the State or an authority of the State) the rights of
                         that person existing before the day of publication; or
25                 (b) to impose liabilities on any person (other than the State
                         or an authority of the State) in respect of anything done
                         or omitted to be done before the day of publication.




     page 46
             Working with Children (Criminal Record Checking) Bill 2004



                                          Class 1 offences       Schedule 1



                Schedule 1 -- Class 1 offences
                                                                    [s. 7(1)]
Enactment                   Description of offence
The Criminal Code
s. 320(2)                   Sexually penetrating child under 13
s. 320(3)                   Procuring, inciting or encouraging child
                            under 13 to engage in sexual behaviour
s. 321A                     Sexual relationship with child under 16 (if the
                            offence includes at least one occasion referred
                            to in s. 321A(1) when the child against whom
                            the offence is committed is under 13)
s. 329(2)                   Sexually penetrating child known to be lineal
                            relative or de facto child (if the child against
                            whom the offence is committed is under 13)
s. 329(3)                   Procuring, inciting or encouraging child
                            known to be lineal relative or de facto child to
                            engage in sexual activity (if the child against
                            whom the offence is committed is under 13)
Crimes Act 1914 of the
Commonwealth
s. 50BA                     Sexual intercourse with child under 16 (if the
                            child against whom the offence is committed
                            is under 13)
s. 50BB                     Inducing child under 16 to engage in sexual
                            intercourse (if the child against whom the
                            offence is committed is under 13)




                                                                    page 47
Working with Children (Criminal Record Checking) Bill 2004



Schedule 2       Class 2 offences



                    Schedule 2 -- Class 2 offences
                                                                         [s. 7(2)]
  Enactment                      Description of offence
  The Criminal Code
  s. 181                         Carnal knowledge of animal
  s. 186                         Occupier or owner allowing child to be on
                                 premises for unlawful carnal knowledge
  s. 187                         Facilitating sexual offences against children
                                 outside Western Australia
  s. 279 (as read with s. 282)   Murder
  s. 280 (as read with s. 287)   Manslaughter
  s. 281A (as read with          Infanticide
  s. 287A)
  s. 290                         Killing unborn child
  s. 297                         Grievous bodily harm
  s. 320(4)                      Indecent dealing with child under 13
  s. 320(5)                      Procuring, inciting or encouraging child
                                 under 13 to do indecent act
  s. 320(6)                      Indecently recording child under 13
  s. 321                         Sexual offences against child of or over 13
                                 and under 16
  s. 321A                        Sexual relationship with child under 16 (if the
                                 offence does not include any occasion referred
                                 to in s. 321A(1) when the child against whom
                                 the offence is committed is under 13)
  s. 322                         Sexual offences against child of or over 16 by
                                 person in authority etc.
  s. 323                         Indecent assault
  s. 324                         Aggravated indecent assault
  s. 325                         Sexual penetration without consent
  s. 326                         Aggravated sexual penetration without
                                 consent


page 48
             Working with Children (Criminal Record Checking) Bill 2004



                                          Class 2 offences       Schedule 2



Enactment                    Description of offence
s. 327                       Sexual coercion
s. 328                       Aggravated sexual coercion
s. 329(2)                    Sexually penetrating child known to be lineal
                             relative or de facto child (if the child against
                             whom the offence is committed is 13 or over)
s. 329(3)                    Procuring, inciting or encouraging child
                             known to be lineal relative or de facto child to
                             engage in sexual activity (if the child against
                             whom the offence is committed is 13 or over)
s. 329(4)                    Indecent dealing with child known to be lineal
                             relative or de facto child
s. 329(5)                    Procuring, inciting or encouraging child
                             known to be lineal relative or de facto child to
                             engage in sexual activity
s. 329(6)                    Indecently recording child known to be lineal
                             relative or de facto child
s. 330                       Sexual offences against incapable person
s. 331B                      Sexual servitude
s. 331C                      Conducting business involving sexual
                             servitude
s. 331D                      Deceptive recruiting for commercial sexual
                             services
s. 332                       Kidnapping
s. 343                       Child stealing
Classification (Publications,
Films and Computer
Games) Enforcement
Act 1996
s. 60                         Child pornography
s. 101                       Objectionable material offences (if the
                             objectionable material is child pornography)




                                                                     page 49
Working with Children (Criminal Record Checking) Bill 2004



Schedule 2      Class 2 offences



  Enactment                   Description of offence
  Prostitution Act 2000
  s. 16                       Causing, permitting or seeking to induce child
                              to act as prostitute
  s. 17                       Obtaining payment for prostitution by child
  s. 18                       Agreement for prostitution by child
  Children and Community
  Services Act 2004
  s. 101                      Failing to protect child from significant harm
  s. 102                      Leaving child unsupervised in vehicle
  s. 192                      Employing child, or permitting child to be
                              employed, to perform in indecent, obscene or
                              pornographic manner
  Crimes Act 1914 of the
  Commonwealth
  s. 50BA                     Sexual intercourse with child under 16 (if the
                              child against whom the offence is committed
                              is 13 or over)
  s. 50BB                     Inducing child under 16 to engage in sexual
                              intercourse (if the child against whom the
                              offence is committed is 13 or over)
  s. 50BC                     Sexual conduct involving a child under 16
  s. 50BD                     Inducing child under 16 to be involved in
                              sexual conduct
  s. 50DA                     Benefiting from offence against Part IIIA
  s. 50DB                     Encouraging offence against Part IIIA
  Criminal Code Act 1995 of
  the Commonwealth
  s. 474.19                   Using a carriage service for child pornography
                              material
  s. 474.20                   Possessing, controlling, producing, supplying
                              or obtaining child pornography material for
                              use through a carriage service



page 50
            Working with Children (Criminal Record Checking) Bill 2004



                                         Class 2 offences       Schedule 2



Enactment                  Description of offence
s. 474.22                  Using a child carriage service for child abuse
                           material
s. 474.23                  Possessing, controlling, producing, supplying
                           or obtaining child abuse material for use
                           through a carriage service
s. 474.26                  Using a carriage service to procure persons
                           under 16
s. 474.27                  Using a carriage service to "groom" persons
                           under 16
Customs Act 1901 of the
Commonwealth
s. 233BAB                  Special offences relating to tier 2 goods (if the
                           offence involves items of child pornography
                           or of child abuse material)




                                                                    page 51
Working with Children (Criminal Record Checking) Bill 2004



Defined Terms



                                           Defined Terms
           [This is a list of terms defined and the provisions where they are defined.
                                  The list is not part of the law.]
     Defined Term                                                                                         Provision(s)
     another jurisdiction........................................................................................... 4
     approved .......................................................................................................... 4
     assessment notice ............................................................................................. 4
     authorised person .......................................................................................34(1)
     CEO................................................................................................................. 4
     charge .............................................................................................................. 4
     child................................................................................................................. 4
     child care service.............................................................................................. 4
     child-related business ....................................................................................... 4
     child-related employment ................................................................................. 4
     child-related work ....................................................................................4, 6(1)
     Class 1 offence .........................................................................................4, 7(1)
     Class 2 offence .........................................................................................4, 7(2)
     commencement day........................................................................................ 56
     Commissioner .................................................................................................. 4
     contact ............................................................................................................. 4
     contact with a child ..................................................................................... 6(2)
     continuing employee ..................................................................................60(4)
     continuing minister of religion....................................................................59(1)
     continuing operator ....................................................................................57(3)
     continuing volunteer...................................................................................58(1)
     conviction ........................................................................................................ 4
     correct notice..............................................................................................20(1)
     corresponding authority..............................................................................37(1)
     criminal record ................................................................................................. 4
     criminal record check ....................................................................................... 4
     defined period ............................................................................................26(1)
     Department ............................................................................................4, 38(1)
     educational institution for children.................................................................... 4
     employee....................................................................................................16(1)
     employer ............................................................. 9(1), 16(1), 22(1), 41(1), 43(1)
     first notice ..................................................................................................20(2)
     interim negative notice ..................................................................................... 4
     managerial officer ....................................................................................... 5(1)
     negative notice ................................................................................................. 4
     new employee ............................................................................................60(4)
     new operator ..............................................................................................57(3)
     non-conviction charge ...................................................................................... 4
     officer of the Department.................................................................................. 4


page 52
               Working with Children (Criminal Record Checking) Bill 2004



                                                                                              Defined Terms



parent............................................................................................................... 4
pending charge ................................................................................................. 4
public authority ..........................................................................................38(1)
public sector employee ...............................................................................45(2)
regulated person .........................................................................................42(1)
relative............................................................................................................. 4
specified.................................................................................................4, 61(4)
work ................................................................................................................ 4




 


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