Background Checking Legislation Amendment Act 2023 (ACT)

Case

Background Checking Legislation Amendment Act 2023

A2023-12

Contents

Page

Part 1      Preliminary

1            Name of Act  2

2            Commencement  2

3            Legislation amended  2

Part 2Children and Young People Act 2008

4            Approved carers—director-general may approveSection 514B (3), except note  3

Part 3Working with Vulnerable People (Background Checking) Act 2011

5            Section 11B  5

6            When is a person required to be registered?New section 12 (2) (ia)  7

7           New section 12 (2) (na)  7

8            Section 12 (5), definition of close relative  7

9            Section 16  8

10          Independent advisors—appointmentSection 34 (3)  9

11          Conditional registration—class A disqualifying offenceSection 42A, note 2  9

12          Child protection servicesSchedule 1, section 1.1 (2), note, new dot point  10

13          Migrants, refugees and asylum seekersSchedule 1, section 1.9, new note  10

14          Class A disqualifying offencesSchedule 3, part 3.2 heading, note  10

15          Schedule 3, part 3.2, item 2  10

16          Schedule 3, part 3.2, item 67, column 4  10

17          Schedule 3, part 3.2, new item 67A  10

18          Class B disqualifying offencesSchedule 3, part 3.3, items 21 and 24  11

19          Schedule 3, part 3.3, item 66  11

20          Schedule 3, part 3.3, items 81, 84, 86, 91, 96, 120, 126, 135 and 136    11

21          Dictionary, definition of kinship care activity  11

Background Checking Legislation Amendment Act 2023

A2023-12

An Act to amend the Children and Young People Act 2008 and the  Working with Vulnerable People (Background Checking) Act 2011

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1Preliminary

  1. Name of Act

    This Act is the Background Checking Legislation Amendment Act 2023.

  2. Commencement

    This Act commences on the day after its notification day.

    NoteThe naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

  3. Legislation amended

    This Act amends the Children and Young People Act 2008 and the Working with Vulnerable People (Background Checking) Act 2011.

Part 2Children and Young People Act 2008

  1. Approved carers—director-general may approve
    Section 514B (3), except note

    substitute

    (3)The director-general may approve a person as an approved carer only if—

    (a)the person is registered under the Working with Vulnerable People Act to engage in a regulated activity; or

    (b)the person—

    (i)has applied for registration under the Working with Vulnerable People Act; and

    (ii)may engage in a regulated activity under that Act, section 16 (2) (When unregistered person may be engaged in regulated activity—kinship carer or foster carer); or

    (c)the person is not registered under the Working with Vulnerable People Act to engage in a regulated activity and—

    (i)the person is to be authorised as a kinship carer under section 516 or a foster carer under section 518 for a child or young person; and

    (ii)the director-general is satisfied that—

    (A)the person is a significant person for the child or young person; and

    (B)the person has a familiar relationship with the child or young person; and

    (C)given the familiar relationship, the person does not pose an unacceptable risk to the child or young person; and

    (D)taking into account all the circumstances, it would be in the best interests of the child or young person to have the person authorised as their kinship carer or foster carer.

    (4)In deciding whether a person has a familiar relationship with a child or young person, the director-general must consider the length of the relationship and the extent and degree to which the person engages with the child or young person.

    (5)The Minister must make guidelines about matters the director-general must consider under subsection (3) (c) (ii).

    (6)A guideline is a disallowable instrument.

    (7)In this section:

    regulated activity means a regulated activity mentioned in the Working with Vulnerable People Act, schedule 1, section 1.1 (Child protection services).

Part 3Working with Vulnerable People (Background Checking) Act 2011

  1. Section 11B

    substitute

11BMeaning of disqualifying offence etc

(1)In this Act:

class A disqualifying offence means an offence against—

(a)a provision of a law mentioned in schedule 3, part 3.2, column 2, if any condition mentioned in column 4 for the offence is met; or

(b)a provision of a law declared to be a class A disqualifying offence, if any condition declared for the offence is met.

class B disqualifying offence means an offence against—

(a)a provision of a law mentioned in schedule 3, part 3.3, column 2, if any condition mentioned in column 4 for the offence is met; or

(b)a provision of a law declared to be a class B disqualifying offence, if any condition declared for the offence is met.

disqualifying offence means a class A disqualifying offence or a class B disqualifying offence.

(2)The Minister may declare—

(a)either of the following to be a class A disqualifying offence or a class B disqualifying offence:

(i)a provision of a law of the Commonwealth, another State or a foreign country that corresponds, or substantially corresponds, to a provision of a law mentioned in—

(A)for a class A disqualifying offence—schedule 3, part 3.2, column 2; and

(B)for a class B disqualifying offence—schedule 3, part 3.3, column 2;

NoteState includes the Northern Territory (see Legislation Act, dict, pt 1).

(ii)a provision of a law that has been omitted, or omitted and remade with changes; and

NoteA conviction against an offence under a provision of a law that has been omitted or remade does not include a spent conviction or an extinguished conviction (see Spent Convictions Act 2000, s 16 (c) (i) and s 19H (1) (c) (i)).

(b)any condition that must be met for an offence declared under paragraph (a) to be a disqualifying offence.

(3)A declaration is a disallowable instrument.

11CDisqualifying offences—kinship care activities

(1)This section applies if a person—

(a)applies for registration under section 17; and

(b)is engaged, or seeking registration to engage, only in a kinship care activity; and

(c)has an adult conviction or finding of guilt for a class A disqualifying offence.

(2)The person’s class A disqualifying offence is taken to be a class B disqualifying offence in relation to the application for registration.

(3)In this section:

kinship care activity means an activity conducted as a kinship carer under the Children and Young People Act 2008, part 15.4 (Out‑of‑home carers).

NoteAn activity conducted, or a service provided, by a kinship carer under the Children and Young People Act 2008 is a regulated activity (see sch 1, s 1.1 (2)).

  1. When is a person required to be registered?
    New section 12 (2) (ia)

    insert

    (ia)engaged in the activity for a court or tribunal as an interpreter for a vulnerable person who cannot communicate, or who has difficulty communicating, in English; or

  2. New section 12 (2) (na)

    after the note, insert

    (na)not required to be registered under section 16 (3); or

  3. Section 12 (5), definition of close relative

    substitute

    close relative, of a vulnerable person, means the vulnerable person’s—

    (a)domestic partner; or

    NoteDomestic partner—see the Legislation Act, s 169.

    (b)father, mother, grandfather, grandmother, stepfather, stepmother, father-in-law or mother-in-law; or

    (c)son, daughter, grandson, granddaughter, stepson, stepdaughter, son-in-law or daughter-in-law; or

    (d)brother, sister, half-brother, half-sister, stepbrother, stepsister, brother-in-law or sister-in-law; or

    (e)uncle, aunt, uncle-in-law or aunt-in-law; or

    (f)nephew, niece or cousin.

  4. Section 16

    substitute

  5. When unregistered person may be engaged in regulated activity—kinship carer or foster carer

    (1)This section applies to an unregistered person if the person is engaged in a regulated activity mentioned in schedule 1, section 1.1 (Child protection services) as—

    (a)a kinship carer; or

    (b)a foster carer.

    (2)The person may engage in the regulated activity if—

    (a)the person has applied for registration under section 17; and

    (b)the commissioner has not given the person a negative notice under section 40; and

    (c)the person has not withdrawn the application; and

    (d)the person is eligible.

    (3)The person is not required to be registered to engage in the activity if the person is an approved carer under the Children and Young People Act 2008, section 514B (3) (c).

    NoteUnder the Children and Young People Act 2008, section 514B (3) (c), the director-general may approve an unregistered person as an approved carer for a child or young person if—

    (a)the person is to be authorised to be a kinship carer or foster carer; and

    (b)the director-general is satisfied that the person is a significant person for the child or young person, has a familiar relationship with the child or young person and does not pose an unacceptable risk to the child or young person, and that the approval is in the best interests of the child or young person.

    (4)In this section:

    eligible—see section 15 (4).

    foster carer—see the Children and Young People Act 2008, section 518.

  6. Independent advisors—appointment
    Section 34 (3)

    omit

    3 years

    substitute

    5 years

  7. Conditional registration—class A disqualifying offence
    Section 42A, note 2

    substitute

    Note 2For a kinship carer, a class A disqualifying offence is taken to be a class B disqualifying offence (see s 11C (2)).

  8. Child protection services
    Schedule 1, section 1.1 (2), note, new dot point

    insert

    ·     s 514B (Approved carers—director-general may approve);

  9. Migrants, refugees and asylum seekers
    Schedule 1, section 1.9, new note

    after the example, insert

    NoteA person is not required to be registered to engage in a regulated activity for a court or tribunal as an interpreter for a vulnerable person who cannot communicate, or who has difficulty communicating, in English (see s 12 (2) (ia)).

  10. Class A disqualifying offences
    Schedule 3, part 3.2 heading, note

    substitute

    NoteAn offence mentioned in this part is taken to be a class B disqualifying offence for a person engaged, or seeking registration to engage, in a kinship care activity (see s 11C).

  11. Schedule 3, part 3.2, item 2

    omit

  12. Schedule 3, part 3.2, item 67, column 4

    omit

    offence against child under 13 years

  13. Schedule 3, part 3.2, new item 67A

    insert

67A Crimes Act, s 62 (3) incest (16 years or older) offence against vulnerable person

  1. Class B disqualifying offences
    Schedule 3, part 3.3, items 21 and 24

    omit

  2. Schedule 3, part 3.3, item 66

    omit

  3. Schedule 3, part 3.3, items 81, 84, 86, 91, 96, 120, 126, 135 and 136

    omit

  4. Dictionary, definition of kinship care activity

    omit

Endnotes

  1. Presentation speech

    Presentation speech made in the Legislative Assembly on 20 October 2022.

  2. Notification

    Notified under the Legislation Act on 11 April 2023.

  3. Republications of amended laws

    For the latest republication of amended laws, see certify that the above is a true copy of the Background Checking Legislation Amendment Bill 2023, which originated in the Legislative Assembly as the Background Checking Legislation Amendment Bill 2022 and was passed by the Assembly on 29 March 2023.

    Clerk of the Legislative Assembly

    © Australian Capital Territory 2023

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