Published by Geoff Harrison | 17 September 2023
Under the Child Protection (Working with Children) Act 2012 ('the Act') a person must not perform child related work or child related volunteer work unless holding a working with children check clearance. It is an offence for both the employer and the worker, to work with children without a clearance: ss8 & 9 of the Act. The maximum penalty for an individual is 100 penalty units ($11,000) and/or 2 years imprisonment and 100 penalty units for a corporation or 50 penalty units if not an employing corporation. There are exemptions from the Act for specified workers and employers: r20 of the Child Protection (Working with Children) Regulation 2013 ('the Regulations'). Child related work is defined under s6 of the Act and Part 2 of the Regulations.
The object of the Act is to protect children hence, being charged with a prescribed offence and even being found not guilty triggers an assessment requirement: see Schedule 1 of the Act. The Children's Guardian must cancel a working with children check clearance if the person is a disqualified person or if satisfied that the person poses a risk to the safety of children: s23 of the Act.
A clearance is valid for a period of 5 years and likewise, a person cannot make a further application for a clearance, for 5 years after the notice of their application being refused or cancelled: ss22 and 13A of the Act. Depending upon the nature of the offence some persons, if convicted of certain offences are prohibited from appealing the Children's Guardian's decision, otherwise, an appeal against a refusal can be made within 28 days of the refusal, to the Civil and Administrative Tribunal for administrative review: ss26 & 27 of the Act.
Authorised officers are permitted to issue penalty notices under this Act: s50A. The amount payable for a penalty notice is set out in Schedule 2 of the Regulations.
Other Sources:
Cases:
____________________________________________________________________________________
Extracted Legislation:
3 OBJECT OF ACT
The object of this Act is to protect children--
(a) by not permitting certain persons to engage in child-related work, and
(b) by requiring persons engaged in child-related work to have working with children check clearances.
Note: For other legislation relating to the safety, welfare and well-being of children, and the related functions of the Children's Guardian, see the Children's Guardian Act 2019. In particular, see section 128 and Part 6 of that Act.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 4
Safety, welfare and well-being of children to be paramount consideration
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 5B
Meaning of "risk to the safety of children"
A reference in this Act to a
"risk to the safety of children" is a reference to a real and appreciable risk to the safety of children.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 6
Child-related work
(1) A worker is engaged in
"child-related work" for the purposes of this Act if--
(a) the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work, or
(b) the worker is engaged in work in a child-related role referred to in subsection (3).
(2) The work referred to is work for, or in connection with, any of the following that is declared by the regulations to be child-related work--
(a) mentoring and counselling services for children,
(b) child protection services,
(c) the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services,
(d) clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children,
(e) respite care or other support services for children with a disability,
(f) education and care services, child care centres, nanny services and other child care,
(g) schools or other educational institutions (other than universities) and private coaching or tuition of children,
(h) sporting, cultural or other entertainment venues used primarily by children and entertainment services for children,
(i) detention centres (within the meaning of the Children (Detention Centres) Act 1987 ) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999 ),
(j) any religious organisation,
(k) refuges used by children, long term home stays for children, boarding houses or other residential services for children and overnight camps for children,
(l) transport services especially for children, including school bus services and taxi services for children with a disability and supervision of school road crossings,
(m) any other service for children prescribed by the regulations.
(3) The following roles are referred to--
(a) an approved provider or manager of an education and care service,
(b) a nominated supervisor (within the meaning of the Children (Education and Care Services) National Law (NSW) of an education and care service,
(c) an authorised carer,
(d) an assessment officer (within the meaning of section 27A of the Children and Young Persons (Care and Protection) Act 1998 ),
(e) the principal officer of a designated agency,
(f) the principal officer of an accredited adoption service provider,
(g) any other role with respect to children prescribed by the regulations.
(3A) The regulations may provide for circumstances in which direct contact by a worker with a child or children is taken to be a usual part of and more than incidental to a worker's work.
(4) In this section--
"direct contact" with children means--
(a) physical contact, or
(b) face to face contact.
7 ADDITIONAL CHILD-RELATED WORK
(1) A worker is taken to be engaged in
"child-related work" if the worker is engaged, or proposes to engage, in work (other than as a volunteer) that is the subject of a requirement under this section.
(2) The employer or proposed employer of a worker engaged in work for which a working with children check clearance is not required that involves access to confidential records or information about children may, by notice in writing to the worker, require the worker to obtain a clearance for the purposes of engaging in the work concerned.
(3) The employer, or proposed employer, may at any time, by notice in writing given to the worker, revoke a requirement made under this section.
(4) An employer may make or revoke a requirement under this section only with the approval of the Children's Guardian.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 8
Restrictions on engaging in child-related work
(1) A worker must not engage in child-related work unless--
(a) the worker holds a working with children check clearance of a class applicable to the work, or
(b) there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work.
Maximum penalty--100 penalty units, or imprisonment for 2 years, or both.
(2) A worker must not engage in child-related work at any time that the worker is subject to an interim bar.
Maximum penalty--100 penalty units, or imprisonment for 2 years, or both.
(3) It is a defence to proceedings for an offence against this section if the accused person establishes that--
(a) the accused person did not know, at the time the offence was committed, that the work concerned was child-related work, or
(b) the accused person was exempted by the regulations from the requirement to hold a clearance, or
(c) the offence was consequential on the relevant accused person being subject to an interim bar, having an application for a clearance refused or terminated or having a clearance cancelled and, at the time that the offence was committed, the accused person did not know about the interim bar, refusal, termination or cancellation.
Note : Division 3 also requires adult persons residing with authorised carers or approved providers of education and care services and potential adoptive parents to hold clearances or to have a current application for a clearance.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 9
Employers must require clearance or current application
(1) An employer must not commence employing, or continue to employ, a worker in child-related work if the employer knows or has reasonable cause to believe that--
(a) the worker is not the holder of a working with children check clearance that authorises that work and that there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work, or
(b) the worker is subject to an interim bar.
Maximum penalty--100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(2) It is a defence to proceedings for an offence against this section if the accused person establishes that, at the time the offence was committed--
(a) the accused person had been advised by the Children's Guardian that the worker was the holder of a clearance or that there was a current application by the worker for a clearance, or
(b) the worker was exempted by the regulations from the requirement to hold a clearance.
(3) This section extends to an employer who, in the course of business, arranges for the placement of a worker in employment with others (a
"placement agency" ) if--
(a) the employment is child-related work, and
(b) the placement agency is a person or a person of a class declared by the regulations to be subject to this section.
(4) For the purposes of applying this section to a placement agency referred to in subsection (3), the placement agency is taken to employ the worker during any period in which the placement agency arranges for the employment of the worker in child-related work.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 12
Classes of clearances
(1) There are to be the following classes of working with children check clearances--
(a) volunteer--authorising workers to engage in unpaid child-related work,
(b) non-volunteer--authorising workers to engage in paid and unpaid child-related work.
(2) Despite section 8, the holder of a volunteer clearance may engage in paid child-related work if the person has been engaged in that work for a period of 30 consecutive days or less.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 13A
Embargo after refusal of application or cancellation of clearance
(1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance--
(a) until 5 years after the date notice of the refusal or cancellation was given to the person, or
(b) unless a further early application is permitted under this section.
(2) A further early application is permitted if, after the date of the refusal or cancellation--
(a) relevant proceedings pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence, or
(b) a relevant finding of guilt is quashed or set aside, or
(c) a relevant finding the subject of an assessment requirement--
(i) is quashed or set aside, or
(ii) otherwise expressly or impliedly ceases to have effect.
(3) In this section--
"relevant", in relation to proceedings or a finding, means relevant to the refusal or cancellation.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 14
Assessment requirements
A person is subject to an
"assessment requirement" under this Act if any of the matters specified in Schedule 1 apply to the person.
18 DETERMINATION OF APPLICATIONS FOR CLEARANCES
(1) The Children's Guardian must not grant a working with children check clearance to the following persons (
"disqualified persons" )--
(a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
(2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children.
(3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 15
Assessment of applicants and holders
(1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement.
(2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.
(3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder.
(4) In making an assessment, the Children's Guardian may consider the following--
(a) the seriousness of any matters that caused the assessment in relation to the person,
(b) the period of time since those matters occurred and the conduct of the person since they occurred,
(c) the age of the person at the time the matters occurred,
(d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,
(e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred,
(i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,
(i1) any order of a court or tribunal that is in force in relation to the person,
(j) any information given in, or in relation to, the application,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A,
(k) any other matters that the Children's Guardian considers necessary.
(4A) The Children's Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children's Guardian is satisfied--
(a) a reasonable person would allow the person's child to have direct contact with the applicant or holder--
(i) while not directly supervised by another person, and
(ii) while the applicant or holder was engaged in child-related work, and
(b) the making of the determination is in the public interest.
(5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 22
Duration of clearances
(1) A working with children check clearance ceases to have effect 5 years after the date it is granted, unless it is sooner cancelled or surrendered.
(2) The holder of a clearance may apply for a new clearance at any time within the period beginning 3 months before the expiry of the clearance.
(3) The following arrangements apply for the purpose of facilitating alignment of the periods for which a clearance granted to a person under this Act and a clearance granted to the person under the National Disability Insurance Scheme (Worker Checks) Act 2018 are in force--
(a) a working with children check clearance may, at the discretion of the Children's Guardian and with the agreement of the applicant, be granted so as to be in force for a period of less than 5 years,
(b) the period for which a working with children check clearance is in force may be shortened after the clearance is granted at the discretion of the Children's Guardian and on the application of the holder of the clearance,
(c) the holder of a working with children check clearance may, with the approval of the Children's Guardian, apply for a new working with children check clearance earlier than 3 months before the expiry of the clearance,
(d) the Children's Guardian may approve a reduction in the fee payable, or a refund of part of any fee paid, to reflect any reduction in the period for which a working with children check clearance is or is to be in force.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 23
Cancellation of clearances
(1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children.
(2) The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance.
(3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.
(4) The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.
Note : The holder of a clearance may also be made subject to an interim bar (see section 17).
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 26
Persons not entitled to apply for review or enabling order
(1) The following persons are not entitled to make an application under this Part--
(a) a person who has been convicted of any of the following offences, if the offence was committed as an adult and the person is a person who satisfies subsection (2)--
(i) murder,
(ii) an offence against section 61B, 61C, 61D, 61E, 61F, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 61P, 63, 65A, 66, 66F, 76, 78A, 78B, 80A, 80D, 80E or 81 of the Crimes Act 1900 , if the person against whom the offence was committed was a child,
(iii) the common law offence of rape, if the person against whom the offence was committed was a child,
(iv) an offence against section 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB or 66EC of the Crimes Act 1900 ,
(v) an offence against section 67, 68, 71, 72, 72A, 73, 73A, 74 or 76A of the Crimes Act 1900 ,
(vi) an offence against section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q of the Crimes Act 1900 ,
(vii) an offence against section 91D, 91E or 91F of the Crimes Act 1900 ,
(viii) an offence against section 91G, 91H, 578B or 578C(2A) of the Crimes Act 1900 ,
(viiia) an offence against the Crimes Act 1900 , section 79 or 530,
(ix) an offence against section 272.8, 272.10 (if it relates to an underlying offence against section 272.8) or 272.11 of the Criminal Code of the Commonwealth,
(x) an offence against section 272.9, 272.10 (if it relates to an underlying offence against section 272.9), 272.12, 272.13, 272.14 or 272.15 of the Criminal Code of the Commonwealth,
(xi) an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth, if it relates to a Class 1 offence within the meaning of the Child Protection (Offenders Registration) Act 2000 ,
(xii) an offence against section 273.5, 273.6, 273.7, 471.16, 471.17, 471.19, 471.20, 471.22, 471.24, 471.25, 474.19, 474.20, 474.22, 474.23, 474.24A, 474.25A, 474.25B, 474.26 or 474.27 of the Criminal Code of the Commonwealth,
(xiii) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material,
(xiv) an offence an element of which is an intention to commit an offence listed in subparagraphs (i)-(xiii),
(xv) an offence of attempting, or of conspiracy or incitement, to commit an offence listed in subparagraphs (i)-(xiii),
(b) a person who has been convicted of an offence committed as an adult under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence referred to in paragraph (a) and the person is a person who satisfies subsection (2),
(c) a person whose application for a working with children check clearance has been refused, or whose working with children check clearance has been cancelled, wholly or partly on the grounds that proceedings have been commenced against the person for an offence specified in Schedule 2 and the proceedings have not been finally determined.
(2) A person convicted of an offence specified in subsection (1) satisfies this subsection if--
(a) the person received a sentence of full time custody for the offence, or
(b) any of the following orders (including any equivalent orders made by a court of a jurisdiction other than this State (including jurisdictions outside Australia)) was imposed on the person in respect of the offence and the order is in force--
(i) a home detention order, intensive correction order or community service order under the Crimes (Sentencing Procedure) Act 1999 , a good behaviour order under section 9 of that Act or an order under section 12 of that Act,
(ia) a community correction order or conditional release order under that Act,
(ii) a conditional release order or recognizance release order under section 20 of the Crimes Act 1914 of the Commonwealth, or
(c) a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (or a corresponding prohibition order under section 19 of that Act) is in force against the person.
(3) This section applies to convictions for offences whether occurring before, on or after the commencement of this Act.
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 27
Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(2) A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(3) A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.
(4) An applicant must fully disclose to the Tribunal any matters relevant to the application.
(7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
(8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person's employer.
(9) A "stay order" is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section.
(10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 .
CHILD PROTECTION (WORKING WITH CHILDREN) ACT 2012 - SECT 50A
Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.
(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.
(3) The Fines Act 1996 applies to a penalty notice issued under this section.
Note : The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.
(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).
(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
Definitions:
"working with children check clearance" or
"clearance" means an authorisation that is in force under this Act to engage in child-related work.