Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021 (Vic)

Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021

No. 23 of 2021

table of provisions

Section  Page

Part 1—Preliminary

1Purposes

2Commencement

3Principal Act

Part 2—Child Wellbeing and Safety Act 2005—regulatory amendments

4Purposes

5Definitions

6Principles for compliance with Child Safe Standards

7Governor in Council may specify day for compliance with Child Safe Standards

8Category 1 and 2 entities must comply with Child Safe Standards

9Prescribed entity must comply with Child Safe Standards

10Entity belonging to a prescribed class must comply with Child Safe Standards

11Exemption from requirement to comply with Child Safe Standards

12Application of Child Safe Standards to businesses not carried on by certain entities

13New section 23A inserted

14Objectives of Commission

15Functions of Commission

16New Division 2A of Part 6 inserted

17Schedule 1 substituted

18Schedule 2—Category 2 entities

Part 3—Child Wellbeing and Safety Act 2005—monitoring and enforcement

19Definitions—Part 6

20Compliance with the Child Safe Standards

21Section 26 substituted

22Section 27 substituted

23Section 28 substituted

24Section 29 substituted

25Notice to produce

26Notice to comply

27Section 32 substituted

28Application to court

29Civil penalty

30New sections 34A to 34E inserted

31Protection against self-incrimination

32Assistance to be provided

33New sections 36A to 36I inserted

34Sections 37 and 38 repealed

35Section 39 substituted

36Internal review

37Application to the Victorian Civil and Administrative Tribunal

Part 4—Child Wellbeing and Safety Act 2005—confidentiality and information sharing

38Division 4 of Part 6 heading substituted

39Definitions—Division 4 of Part 6

40New sections 40A and 40B inserted

41Matters relevant to disclosures of information

42Disclosures made in good faith

43Section 41B substituted

44Section 41C substituted

45Disclosure to report concerns permitted

46Disclosure to protect child permitted

47Disclosing information to other authorities

48New section 41HA inserted

Part 5—Child Wellbeing and Safety Act 2005—reporting

49Report of compliance by relevant entities with Child Safe Standards

50New section 41KA inserted

51Commission must first give opportunity to respond to adverse comment or opinion

52Application of Division

53Giving the report to Parliament

Part 6—Education and Training Reform Act 2006—regulatory amendments

54Definitions

55Interpretation

56Functions of Authority

57Requirements for registration

58Authority must not register school boarding premises unless satisfied of certain matters

59Criteria for registration

60Decision about registration

61Registration conditions

62Guidelines

63Faster action in exceptional circumstances

64Approval to provide courses for overseas students

65Suspension or cancellation of approval

66Faster action in exceptional circumstances

67Approval of overseas secondary student exchange organisations

68Conditions of approval

69Section 4.5A.6 substituted

Part 7—Education and Training Reform Act 2006—monitoring and enforcement

70Review of operations of schools by Authority

71Section 4.3.8I repealed

72Review of operations of institutions and courses

73Powers of authorised officers

74New sections 5.8.3AA to 5.8.3AD inserted

75Definitions

76New Divisions 5 to 12 of Part 5.8 inserted

Part 8—Child Wellbeing and Safety Act 2005—miscellaneous

77New section 46ZD inserted

Part 9—Transitional provisions

Division 1—Child Wellbeing and Safety Act 2005

78Heading for new Division 1 of Part 9 inserted

79Heading for new Division 2 of Part 9 inserted

80New Division 3 of Part 9 inserted

Division 2—Education and Training Reform Act 2006

81New section 5.10.2A inserted

Part 10—Repeal of this Act

82Repeal of this Act

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Endnotes

1      General information

Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021

No. 23 of 2021

[Assented to 28 June 2021]

The Parliament of Victoria enacts:

Part 1—Preliminary

1Purposes

The main purposes of this Act are—

(a)to amend the requirements in the Child Wellbeing and Safety Act 2005 relating to the compliance of relevant entities with the Child Safe Standards; and

(b)to increase monitoring and enforcement powers relating to the Child Safe Standards in the Child Wellbeing and Safety Act 2005; and

(c)to include requirements in the Education and Training Reform Act 2006 for relevant entities to comply with the Child Safe Standards; and

(d)to provide for monitoring and enforcement powers relating to the Child Safe Standards in the Education and Training Reform Act 2006; and

(e)to provide for information collection, disclosure, use and reporting in relation to the new and amended provisions in those Acts.

2Commencement

(1)Subject to subsections (2) and (3), this Act comes into operation on a day or days to be proclaimed.

(2)Part 1 and section 5(4) come into operation on the day after the day on which this Act receives the Royal Assent.

(3)If a provision of this Act does not come into operation before 1 January 2023, it comes into operation on that day.

3Principal Act

In this Act, the Child Wellbeing and Safety Act 2005 is called the Principal Act.

Part 2—Child Wellbeing and Safety Act 2005—regulatory amendments

4Purposes

(1)After section (1)(d) of the Principal Act insert—

"(da)to provide for sector regulators and integrated sector regulators; and".

(2)In section 1(e) of the Principal Act, after "People" insert ", sector regulators and integrated sector regulators".

5Definitions

(1)In section 3(1) of the Principal Act, the definitions of category 1 entity, category 2 entity and relevant authority are repealed.

(2)In section 3(1) of the Principal Act, insert the following definitions—

"authorised officer means a person appointed to be an authorised officer under section 27;

authorising Act, in relation to an integrated sector regulator, means—

(a)the Act under which the integrated sector regulator is established or continued; or

(b)an Act prescribed for that integrated sector regulator;

category of entity means—

(a)an item in Schedule 1; or

(b)any other category (however described) of relevant entity in relation to which a sector regulator—

(i)is prescribed; or

(ii)is allocated under Part 6;

integrated sector regulator has the meaning set out in section 25F;

public sector body has the same meaning as in the Public Administration Act 2004;

sector regulator has the meaning set out in section 25B;

statutory office has the same meaning as in the Public Administration Act 2004;

VRQA means the Victorian Registration and Qualifications Authority established under Chapter 4 of the Education and Training Reform Act 2006;".

(3)In section 3(1) of the Principal Act, for the definition of authorised person substitute—

"authorised person means—

(a)an authorised person within the meaning of the Commission for Children and Young People Act 2012; or

(b)a person authorised under section 26;".

(4)In section 3(1) of the Principal Act, in the definition of child, for "person" substitute "child or young person".

(5)In section 3(2) of the Principal Act, for "category 1 entity, category 2 entity" substitute "relevant entity".

6Principles for compliance with Child Safe Standards

(1)In section 5A(1) of the Principal Act—

(a)for "Commission of compliance" substitute "Commission, sector regulators and integrated sector regulators of compliance";

(b)for paragraph (b) substitute—

"(b)sector regulators and integrated sector regulators of relevant entities have specific knowledge of the relevant entities that they regulate and have the primary role in promoting, monitoring and enforcing compliance by those relevant entities with the Child Safe Standards; and";

(c)for paragraph (c) substitute—

"(c)having regard to paragraph (b), the Commission, sector regulators and integrated sector regulators should collaborate with each other for the purpose of promoting compliance by relevant entities with the Child Safe Standards.".

(2)In section 5A(2)(a) of the Principal Act, for "relevant authorities" substitute "sector regulators and integrated sector regulators".

7Governor in Council may specify day for compliance with Child Safe Standards

Section 18 of the Principal Act is repealed.

8Category 1 and 2 entities must comply with Child Safe Standards

(1)In the heading to section 19 of the Principal Act, for "Category 1 and 2 entities" substitute "Schedule 1 entities".

(2)In section 19(1) of the Principal Act—

(a)for "A category 1 entity" substitute "An entity referred to in Schedule 1"; 

(b)omit "on and after the specified day";

(c)in paragraph (b), for "requirement; or" substitute "requirement.";

(d)paragraph (c) is repealed.

(3)Section 19(2) of the Principal Act is repealed.

(4)In section 19(3) of the Principal Act—

(a)omit "or (2)(b)";

(b)in paragraph (a), for "category 1 entity or category 2 entity" substitute "entity referred to in Schedule 1";

(c)in paragraph (b), for "a category 1 entity or category 2 entity" substitute "an entity referred to in Schedule 1".

(5)Section 19(4) of the Principal Act is repealed.

9Prescribed entity must comply with Child Safe Standards

(1)In the heading to section 20 of the Principal Act, for "Prescribed entity" substitute "Prescribed applicable entity".

(2)In section 20(1) of the Principal Act omit "category 1 entity, category 2 entity or".

10Entity belonging to a prescribed class must comply with Child Safe Standards

(1)In the heading to section 21 of the Principal Act, for "Entity" substitute "Applicable entity".

(2)In section 21 of the Principal Act, for "A category 1 entity, category 2 entity or" substitute "An".

11Exemption from requirement to comply with Child Safe Standards

(1)In section 22 of the Principal Act—

(a)for "A category 1 entity, category 2 entity or" substitute "Subject to subsection (2), an entity referred to in Schedule 1 or an";

(b)for "section 19(1) or (2) or 21" substitute "section 19, 20 or 21".

(2)At the end of section 22 of the Principal Act insert—

"(2)Subsection (1) does not apply to an entity to which the reportable conduct scheme applies.".

12Application of Child Safe Standards to businesses not carried on by certain entities 

In section 23(1)(a) of the Principal Act, for "a category 1 entity, a category 2 entity" substitute "an entity referred to in Schedule 1".

13New section 23A inserted

After section 23 of the Principal Act insert—

"23A   Compliance with Child Safe Standards generally

Unless an exemption under this Act applies, an entity or individual referred to in section 19(1), 20(1), 21 or 23 must comply with the Child Safe Standards despite anything to the contrary in any other Act (other than the Charter of Human Rights and Responsibilities) or subordinate instrument.".

14Objectives of Commission

In section 24 of the Principal Act—

(a)in paragraph (b)(iii), for "abuse." substitute "abuse; and";

(b)after paragraph (b) insert—

"(c)to promote compliance with the Child Safe Standards and consistency in child safety outcomes by providing information and guidance to sector regulators and integrated sector regulators.".

15Functions of Commission

For section 25 of the Principal Act substitute—

"25   Functions and powers of the Commission

(1)The Commission has the following functions in relation to the Child Safe Standards—

(a)to provide education, information and advice on the Child Safe Standards to any person or entity;

(b)to publish guidance notes that promote consistent child safety outcomes and compliance with, and the enforcement of, the Child Safe Standards, for use by sector regulators and integrated sector regulators;

(c)in relation to a relevant entity for which it is a sector regulator, the functions set out in section 25D(1);

(d)to collect, analyse and publish information and data relating to the Child Safe Standards;

(e)to work collaboratively with other sector regulators and integrated sector regulators in relation to the safety of children and compliance with the Child Safe Standards;

(f)to promote information exchange between the Commission, other sector regulators and integrated sector regulators in relation to the safety of children and compliance with the Child Safe Standards;

(g)any other functions conferred on the Commission under this Part or under regulations made for the purposes of this Part.

(2)For the purposes of subsection (1)(c), in carrying out the functions set out in section 25D(1) the Commission must consider the most effective means of promoting compliance by the relevant entity with the Child Safe Standards.

(3)The Commission has the following powers in relation to the Child Safe Standards—

(a)any power conferred on the Commission under this Part or under regulations made for the purposes of this Part;

(b)in relation to a relevant entity for which it is a sector regulator, the powers set out in section 25D(4);

(c)any power necessary or convenient to perform its functions under this Part or under regulations made for the purposes of this Part.

25AGuidance notes on Child Safe Standards

(1)Before publishing guidance notes referred to in section 25(1)(b), the Commission must consult with sector regulators and integrated sector regulators regarding the contents of the guidance notes.

(2)Sector regulators and integrated sector regulators must have regard to any guidance notes published by the Commission in carrying out functions and exercising powers relating to the Child Safe Standards.".

16New Division 2A of Part 6 inserted

After Division 2 of Part 6 of the Principal Act insert—

"Division 2A—Sector regulators and integrated sector regulators

25BSector regulators

(1)Subject to section 25C, in this Act, sector regulator means—

(a)in relation to a relevant entity referred to in an item in Schedule 1 (other than a relevant entity that has an integrated sector regulator)—

(i)the prescribed sector regulator for that relevant entity; or

(ii)if no person or body is prescribed to be the sector regulator, or the person or body prescribed to be the sector regulator for the relevant entity no longer exists, the Commission; or

(b)in relation to a relevant entity that has an integrated sector regulator and that integrated sector regulator no longer exists, the Commission; or

(c)in relation to any other relevant entity, the prescribed sector regulator for that relevant entity.

(2)Regulations made for the purposes of this section may only prescribe the following to be sector regulators—

(a)a statutory authority;

(b)a Department or Department Head within the meaning of the Public Administration Act 2004;

(c)an Administrative Office or Administrative Office Head within the meaning of the Public Administration Act 2004;

(d)a public entity within the meaning of the Public Administration Act 2004;

(e)a special body within the meaning of the Public Administration Act 2004.

25CMultiple sector regulators or integrated sector regulators

(1)This section applies if—

(a)a relevant entity belongs to more than one category of entity; and

(b)those categories of entity have different sector regulators or integrated sector regulators.

(2)A sector regulator is the sector regulator for the relevant entity only in relation to the relevant entity's provision of the services or facilities, or the engagement of a child to assist in providing or producing the services, facilities or goods, of the category for which it is the sector regulator.

(3)An integrated sector regulator is the integrated sector regulator for the relevant entity only in relation to the relevant entity's provision of the services or facilities, or the engagement of a child to assist in providing or producing the services, facilities or goods, of the category for which it is the integrated sector regulator.

25DFunctions and powers of sector regulators

(1)A sector regulator has the following functions in relation to the Child Safe Standards—

(a)to provide education, information and advice on the Child Safe Standards to promote consistency in child safety outcomes;

(b)to investigate, monitor and enforce compliance with the Child Safe Standards by relevant entities for which it is a sector regulator;

(c)to collect, analyse and publish information and data regarding compliance with the Child Safe Standards by relevant entities for which it is a sector regulator and, in the case of a sector regulator that is not the Commission, to provide that information and data to the Commission as required;

(d)to promote continuous improvement by relevant entities for which it is a sector regulator in relation to the safety of children, the prevention of child abuse and the proper response to allegations of child abuse;

(e)to work collaboratively with the Commission, other sector regulators and integrated sector regulators in relation to the safety of children and compliance with the Child Safe Standards;

(f)to exchange information and collaborate with persons and bodies in relation to the safety of children and compliance with the Child Safe Standards;

(g)any other function conferred on the sector regulator under this Part or under regulations made for the purposes of this Part.

(2)In carrying out the functions set out in subsection (1) in respect of a relevant entity for which it is a sector regulator, a sector regulator must consider the most effective means of promoting compliance by the relevant entity with the Child Safe Standards.

(3)Without limiting subsection (1)(f), a sector regulator may exchange information and collaborate with persons and bodies with functions or powers under a law of another State, a Territory or the Commonwealth relating to the monitoring or enforcement of compliance with standards (however described) that correspond to the Child Safe Standards.

(4)A sector regulator has the following powers in relation to the Child Safe Standards—

(a)any power conferred on the sector regulator under this Part or under regulations made for the purposes of this Part;

(b)any power necessary or convenient to perform its functions under this Part or under regulations made for the purposes of this Part.

25EDelegation by certain sector regulators

A sector regulator who is the Secretary to a Department or who holds a statutory office in a public sector body may delegate by instrument any functions or powers relating to the Child Safe Standards under this Act or the regulations (except this power of delegation) to a person or class of persons employed under Part 3 of the Public Administration Act 2004 in that Department or body.

25FIntegrated sector regulators

(1)In this Act, integrated sector regulator means—

(a)in relation to the following relevant entities, the VRQA—

(i)a relevant entity referred to in item 1, 4, 5 or 6 of Schedule 1;

(ii)a relevant entity referred to in item 3 of Schedule 1 that is a provider of school boarding services at a registered school boarding premises within the meaning of the Education and Training Reform Act 2006;

(iii)a relevant entity referred to in item 7 or 8 of Schedule 1 that is an RTO within the meaning of the Education and Training Reform Act 2006; or

(b)in relation to any other relevant entity, the prescribed integrated sector regulator for that relevant entity.

(2)Regulations made for the purpose of subsection (1)(b) must not prescribe the VRQA to be the integrated sector regulator for a relevant entity.

25GFunctions and powers of integrated sector regulators

For the purposes of this Part, an integrated sector regulator has the prescribed functions and powers.

Note

An integrated sector regulator may also perform functions or exercise powers that relate to the Child Safe Standards if it has such functions or powers under an authorising Act.

25HDelegation by certain integrated sector regulators

An integrated sector regulator who is the Secretary to a Department or who holds a statutory office in a public sector body may delegate by instrument any prescribed function or power (except this power of delegation) to a person or class of persons employed under Part 3 of the Public Administration Act 2004 in that Department or body.".

17Schedule 1 substituted 

For Schedule 1 to the Principal Act substitute—

"Schedule 1—Entities subject to Child Safe Standards

1An applicable entity that operates a registered school within the meaning of the Education and Training Reform Act 2006.

2An applicable entity that operates a school other than—

(a)a registered school within the meaning of the Education and Training Reform Act 2006; or

(b)a place at which home schooling takes place in accordance with a registration under section 4.3.9 of that Act.

3An applicable entity that provides school boarding services within the meaning of the Education and Training Reform Act 2006.  

4An applicable entity registered under Division 3 of Part 4.3 of the Education and Training Reform Act 2006 in respect of an accredited senior secondary course or registered senior secondary qualification.

5An applicable entity that is approved, under section 4.5.1 of the Education and Training Reform Act 2006, to provide a specified course to students from overseas.

6An applicable entity that is approved, under section 4.5A.1 of the Education and Training Reform Act 2006, as suitable to operate a student exchange program.

7A post-secondary education institution within the meaning of the Education and Training Reform Act 2006.

8A post-secondary education provider within the meaning of the Education and Training Reform Act 2006.

9An approved provider of an approved education and care service within the meaning of the Education and Care Services National Law (Victoria).

10An approved provider of an approved children's service within the meaning of the Children's Services Act 1996.

11An applicable entity that provides coaching or tuition services specifically for children.

12An applicable entity that provides counselling or other support services specifically for children.

13A youth organisation—

(a)in which children participate; or

(b)that provides activities in which children participate.

Examples

1 The Girl Guides Association of Victoria incorporated by section 3 of the Girl Guides Association Act 1952.

2 The Boy Scouts Association, Victorian Branch incorporated by section 3 of the Scout Association Act 1932.

14An applicable entity that provides cultural, sporting or recreational services specifically for children.

15An applicable entity that provides gym or play facilities specifically for children.

16An applicable entity that runs talent or beauty competitions in which children participate.

17An applicable entity that provides overnight camps for children.

18An applicable entity that provides photography services specifically for children.

19An applicable entity that provides professional babysitting services.

20An applicable entity that provides, on a publicly funded or commercial basis, a transport service specifically for children.

21An applicable entity that provides entertainment and party services specifically for children.

22An applicable entity that receives funding under a State contract to provide early therapeutic intervention specifically for children with a disability, additional needs or developmental delay.

23An applicable entity that operates a Maternal and Child Health Centre.

24A hospital listed in Schedule 1 to the Health Services Act 1988 as a public hospital.

25A public health service within the meaning of the Health Services Act 1988.

26A hospital listed in Schedule 2 to the Health Services Act 1988 as a denominational hospital.

27An applicable entity that operates a private hospital within the meaning of the Health Services Act 1988.

28An applicable entity that operates a day procedure centre within the meaning of the Health Services Act 1988.

29A multi purpose service within the meaning of the Health Services Act 1988.

30A registered community health centre within the meaning of the Health Services Act 1988.

31A mental health service provider within the meaning of the Mental Health Act 2014.

32A disability service provider within the meaning of the Disability Act 2006.

33An applicable entity, other than a disability service provider within the meaning of the Disability Act 2006, that provides disability services.

34An applicable entity that receives funding under a State contract to provide drug or alcohol treatment services.

35An applicable entity that receives funding under a State contract to provide services in relation to family violence or sexual assault.

36An applicable entity that receives funding under a State contract to provide support services for parents and families.

37An applicable entity that receives funding under a State contract to provide housing services or other assistance to homeless persons.

38An applicable entity that receives funding under a State contract to provide youth services.

39An applicable entity that receives funding under a State contract to provide child protection services.

40An out of home care service within the meaning of the Children, Youth and Families Act 2005.

41An applicable entity that employs a child and that is required to hold a permit issued under the Child Employment Act 2003 for that employment.

42A religious body within the meaning of section 81 of the Equal Opportunity Act 2010.

43A charity.

44A non-profit body within the meaning of the Electronic Transactions (Victoria) Act 2000.

45A Department within the meaning of the Public Administration Act 2004.

46An applicable entity that is constituted by or under any Act and that has functions of a public nature.

47A council.".

18Schedule 2—Category 2 entities

Schedule 2 to the Principal Act is repealed.

Part 3—Child Wellbeing and Safety Act 2005—monitoring and enforcement

19Definitions—Part 6

In section 3(1) of the Principal Act insert the following definitions—

"guardian includes—

(a)a guardian within the meaning of the Guardianship and Administration Act 2019; or

(b)in the case of a child, a person with parental responsibility for the child;

occupier in relation to any premises or place, includes a person present at the premises or place who is in apparent control of the premises or place;".

20Compliance with the Child Safe Standards

For the heading to Division 3 of Part 6 of the Principal Act substitute—

"Division 3—Monitoring and enforcement of compliance with the Child Safe Standards".

21Section 26 substituted

For section 26 of the Principal Act substitute—

"26 Sector regulator may authorise persons to assist

(1)A sector regulator, by instrument, may authorise any person to assist the sector regulator in performing its functions under this Division.

(2)An authorisation under this section may be general or limited to specified functions.

(3)A sector regulator may not authorise a person to assist the sector regulator in performing the following functions—

(a)issuing a notice to comply under section 31;

(b)making an application to the Magistrates' Court under section 33.

(4)A sector regulator must not authorise a person under this section unless it is satisfied that the person is appropriately qualified or has successfully completed appropriate training.".

22Section 27 substituted

For section 27 of the Principal Act substitute—

"27   Appointment of authorised officers

(1)A sector regulator may, by instrument, appoint any person or class of persons employed or engaged by the sector regulator to be an authorised officer for the purposes of this Part.

(2)An appointment under this section—

(a)may be general or limited to specified functions under this Part; and

(b)may be subject to any specified conditions; and

(c)may be varied, suspended or revoked by the sector regulator at any time.

(3)A sector regulator must not appoint a person under this section unless it is satisfied that the person is appropriately qualified or has successfully completed appropriate training.".

23Section 28 substituted

For section 28 of the Principal Act substitute—

"28   Identity cards

(1)If a sector regulator appoints an authorised officer under section 27, the sector regulator must—

(a)issue the authorised officer with an identity card that complies with subsection (2); or

(b)if the authorised officer is also appointed by the sector regulator as an authorised officer for the purposes of another Act and has a current identity card issued under that Act (the existing identity card)—

(i)amend the existing identity card so that it complies with the requirements of subsection (2); or

(ii)issue a supplementary identity card complying with any requirements of subsection (2) that are not met by the existing identity card; or

(iii)request the authorised officer to return the existing identity card and issue a new identity card that complies with the requirements of the other Act and subsection (2).

(2)An identity card must—

(a)state the authorised officer's name; and

(b)contain a photograph of the authorised officer; and

(c)state that the person to whom it is issued is an authorised officer appointed by the sector regulator for the purposes of this Part.

(3)An authorised officer must return the identity card issued or amended under this section to the sector regulator as soon as practicable after their appointment as an authorised officer under section 27 expires or is revoked.".

24Section 29 substituted

For section 29 of the Principal Act substitute—

"29   Production of identity card

(1)Subject to subsection (3), an authorised officer must produce the authorised officer's identity card for inspection before exercising a power under this Part if asked to do so.

(2)If it is not practicable to comply with subsection (1) before exercising the power, the authorised officer must produce the identity card for inspection at the first reasonable opportunity.

(3)If an authorised officer enters (whether with or without a warrant) any premises or place for the purposes of exercising a power or performing a function under this Part, the authorised officer must produce the authorised officer's identity card for inspection immediately before or upon the first entry to the premises or place.

29APowers of authorised officers to enter premises

(1)An authorised officer may enter and inspect any premises or place if the authorised officer reasonably believes it is a premises or place from or in which a relevant entity—

(a)provides services or facilities for children; or

(b)employs or engages a child to assist the relevant entity with the provision of any services or facilities; or

(c)provides support for an activity described in paragraph (a) or (b); or

(d)keeps equipment, materials or documents relating to an activity described in paragraph (a) or (b).

(2)Subject to subsection (3), an authorised officer may only enter a premises or place under subsection (1)—

(a)if the authorised officer has provided notice to the occupier of the premises or place in accordance with section 29B and the occupier consents to the entry; or

(b)in accordance with a warrant issued under section 29E in relation to the premises or place; or

(c)in the case of any premises or place other than residential premises, if the authorised officer reasonably believes that the relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part.

(3)While exercising a power of entry under subsection (2)(a) or (c), an authorised officer must not enter any part of a premises or place in which the relevant entity provides accommodation or residential services unless—

(a)the resident of that part of the premises or place consents to the entry; or

(b)if the resident is unable to consent, the resident's parent or guardian consents to the entry.

(4)Before obtaining the consent of the resident, parent or guardian for the purposes of subsection (3), the authorised officer must—

(a)inform the resident, parent or guardian—

(i)of the purpose of the entry; and

(ii)that the resident, parent or guardian may refuse to consent to the entry; and

(iii)that the resident, parent or guardian may refuse to consent to the seizure of any thing by the authorised officer during the entry; and

(iv)that the authorised officer may exercise any or all of the powers set out in section 29C during the entry without obtaining further consent from the resident, parent or guardian; and

(v)that the resident, parent or guardian may refuse to consent to the authorised officer exercising a power specified in section 29C during the entry; and

(vi)that any thing seized by the authorised officer during the entry with the consent of the resident, parent or guardian may be used in evidence in proceedings in relation to offences under this or another Act; and

(b)ask the resident, parent or guardian to sign an acknowledgement setting out—

(i)that the resident, parent or guardian has been informed of the matters set out in paragraph (a); and

(ii)that the resident, parent or guardian consents to the entry; and

(iii)the time and date the resident, parent or guardian provided consent.

(5)A resident, parent or guardian who signs an acknowledgement under subsection (4)(b) must be given a copy of the signed acknowledgement before the authorised officer leaves the premises.

(6)A signed acknowledgement under subsection (4)(b) is evidence that the resident, parent or guardian consented to the entry of a premises or place.

(7)If, in any proceeding, a signed acknowledgement under subsection (4)(b) is not produced to the court or tribunal, it must be presumed until the contrary is proved that the resident, parent or guardian did not consent to the entry of a premises or place.

(8)An authorised officer may exercise a power of entry under subsection (2)(a) or (c)—

(a)during the normal business hours of the premises or place; and

(b)if the relevant entity provides services outside normal business hours, during the relevant entity's hours of operation; and

(c)at any time if the occupier consents to the entry.

(9)If the authorised officer is on the premises or place with the consent of the occupier or a resident, parent or guardian, the authorised officer must leave the premises or place if the occupier, resident, parent or guardian asks the authorised officer to do so.

29BNotice required for entry with consent

(1)An authorised officer must not exercise a power of entry or inspection under section 29A(2)(a), unless the authorised officer before obtaining the occupier's consent—

(a)produces the authorised officer's identity card for inspection; and

(b)informs the occupier—

(i)of the purpose of the entry; and

(ii)that the occupier may refuse to consent to the entry; and

(iii)that the occupier may refuse to consent to the seizure of any thing by the authorised officer during the entry; and

(iv)that the authorised officer may exercise any or all of the powers set out in section 29C during the entry without obtaining further consent from the occupier; and

(v)that the occupier may refuse to consent to the authorised officer exercising a power specified in section 29C during the entry; and

(vi)that any thing seized by the authorised officer during the entry with the consent of the occupier may be used in evidence in proceedings in relation to offences under this or another Act; and

(c)asks the occupier to sign an acknowledgement setting out—

(i)that the occupier has been informed of the matters set out in paragraph (b); and

(ii)that the occupier consents to the entry; and

(iii)the time and date the occupier provided consent.

(2)An occupier who signs an acknowledgement under subsection (1)(c) must be given a copy of the signed acknowledgement before the authorised officer leaves the premises or place.

(3)A signed acknowledgement under subsection (1)(c) is evidence that the occupier consented to the entry of a premises or place.

(4)If, in any proceeding, a signed acknowledgement under subsection (1)(c) is not produced to the court or tribunal, it must be presumed until the contrary is proved that the occupier did not consent to the entry of a premises or place.

29CPowers after entry and consent

(1)This section applies if an authorised officer enters any premises or place under section 29A(2)(a).

(2)The authorised officer may do any of the following—

(a)search any part of the premises or place;

(b)inspect and examine any document or thing at the premises or place;

(c)make enquiries with any person at the premises or place;

(d)observe any activity being conducted at the premises or place;

(e)take photographs, or make any type of recording or sketches, of any document, thing or activity at the premises or place;

(f)copy or take an extract from any document at the premises or place;

(g)take into or onto the premises or place any person, equipment or materials;

(h)use and operate any equipment and materials, including but not limited to any disk, tape or storage device, at the premises or place;

(i)secure any electronic equipment that the authorised officer reasonably believes stores or contains information that may be lost, destroyed or tampered with if the equipment is not secured;

(j)request any person at the premises to give information that the authorised officer reasonably believes is necessary to determine whether or not—

(i)a relevant entity is complying, or has complied, with the Child Safe Standards or this Part; or

(ii)a person or body is an entity that is required to comply with the Child Safe Standards;

(k)seize any document or any other thing at the premises or place that the authorised officer reasonably believes is evidence—

(i)relevant to whether a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part; or

(ii)that a person or body is an entity that is required to comply with the Child Safe Standards;

(l)request any person at the premises or place to provide the authorised officer with any reasonable assistance;

(m)request any person at the premises or place to comply with any lawful direction, whether written or oral, of the authorised officer.

(3)An authorised officer may exercise a power under subsection (2) only if the authorised officer reasonably believes it is necessary to do so to investigate whether—

(a)a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part; or

(b)a person or body is an entity that is required to comply with the Child Safe Standards.

29DAcknowledgement of document or thing seized during entry with consent

(1)The authorised officer must not seize any document or thing under section 29C(2)(k) unless the authorised officer asks the owner to sign an acknowledgement setting out—

(a)that the owner consents to the seizure of the document or thing; and

(b)the time and date the owner provided consent.

(2)An owner who signs an acknowledgement under subsection (1) must be given a copy of the signed acknowledgement before the authorised officer leaves the premises.

(3)A signed acknowledgement under subsection (1) is evidence that the owner consented to the seizure of a document or thing.

(4)If, in any proceeding, a signed acknowledgement under subsection (1) is not produced to the court or tribunal, it must be presumed until the contrary is proved that the owner did not consent to the seizure of a document or thing.

29EApplication for warrant

(1)An authorised officer may apply to a magistrate for a warrant in relation to any premises or place if the authorised officer believes on reasonable grounds that—

(a)entry to the premises or place is necessary to investigate whether a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part; or

(b)entry to the premises or place is necessary to investigate whether a person or body is an entity that is required to comply with the Child Safe Standards; or

(c)activities are being engaged in, or have been engaged in, at the premises or place that contravene the Child Safe Standards or this Part; or

(d)documents or other things relevant to the possible contravention of the Child Safe Standards or this Part may be, or within 72 hours may be, present at the premises or place.

(2)The magistrate may issue the warrant if the magistrate is satisfied, by information on oath or by affirmation, that there are reasonable grounds to believe that entry to the premises or place is necessary on the grounds on which issue of the warrant is sought.

(3)A warrant issued under subsection (2) may authorise an authorised officer, with necessary and reasonable help and force—

(a)to enter the premises or place, or any specified part of the premises or place, on one occasion; and

(b)to search for and seize a document or thing specified in the warrant; and

(c)to seize any other document or thing, or to copy or take an extract from any document, that the authorised officer reasonably believes is relevant to a possible contravention of the Child Safe Standards or this Part.

(4)A warrant issued under subsection (2) must state—

(a)the purpose for which the warrant is issued; and

(b)the premises or place to be entered under the warrant; and

(c)any document or thing that may be seized under the warrant; and

(d)whether the entry is authorised to be made at any time of the day or during specified hours of the day; and

(e)any conditions to which the warrant is subject; and

(f)the day, within 7 days of the issue of the warrant, on which the warrant ceases to have effect; and

(g)that the warrant is issued in accordance with the Magistrates' Court Act 1989.

(5)Subject to this section, the rules that apply to search warrants under the Magistrates' Court Act 1989 extend and apply to a warrant issued under this section.

(6)Section 78(1)(b)(iii) of the Magistrates' Court Act 1989 does not apply to a warrant issued under this section.

29FEntry under warrant

(1)Before entering any premises or place under a warrant issued under section 29E, an authorised officer must—

(a)announce that the authorised officer is authorised by the warrant to enter the premises or place; and

(b)give any person at the premises or place an opportunity to allow entry to the premises or place; and

(c)if the occupier is present at the premises or place, give the occupier a copy of the warrant.

Note

Section 29(3) sets out requirements for authorised officers to produce identity cards.

(2)Subsection (1) does not apply if the authorised officer believes on reasonable grounds that immediate entry to the premises or place is required to ensure that the effective execution of the warrant is not frustrated.

29GPowers after entry under warrant

(1)This section applies if an authorised officer enters any premises or place under a warrant issued under section 29E.

(2)The authorised officer may, subject to any condition of the warrant, do any of the following if the authorised officer considers it reasonably necessary for the purposes of executing the warrant—

(a)search any part of the premises or place;

(b)inspect and examine any document or thing at the premises or place;

(c)make enquiries with any person at the premises or place;

(d)observe any activity being conducted at the premises or place;

(e)take photographs, or make any type of recording or sketches, of any document, thing or activity at the premises or place;

(f)copy or take an extract from any document at the premises or place;

(g)take into or onto the premises or place any person, equipment and materials;

(h)use and operate any equipment and materials, including but not limited to any disk, tape or storage device, at the premises or place;

(i)secure any electronic equipment that the authorised officer reasonably believes stores or contains information that may be lost, destroyed or tampered with if the equipment is not secured;

(j)any other thing the authorised officer considers reasonably necessary.

(3)The authorised officer may, subject to any condition of the warrant, require a person to do any of the following if the authorised officer considers it reasonably necessary for the purposes of executing the warrant—

(a)produce a document or part of a document located at the premises or place that is under that person's possession or control;

(b)disclose any information that the authorised officer reasonably believes the person has that relates to whether—

(i)a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part; or

(ii)a person or body is an entity that is required to comply with the Child Safe Standards;

(c)provide the authorised officer with any reasonable assistance;

(d)operate any equipment at the premises or place to enable the authorised officer to access information stored on the equipment;

(e)comply with any lawful direction, whether written or oral, of the authorised officer.

(4)If an authorised officer requires a person to do any thing under subsection (3), the authorised officer must—

(a)inform the person that it is an offence to fail or refuse to comply with the requirement without reasonable excuse; and

(b)inform the person that it is a reasonable excuse for the person to refuse or fail to comply with the requirement if complying with the requirement would tend to incriminate the person; and

(c)state the maximum penalty for failing or refusing to comply with the requirement.

(5)Subject to any condition of the warrant, if the authorised officer secures any electronic equipment under subsection (2)(i), that equipment may be secured—

(a)subject to subsection (6), until the earlier of the following—

(i)the end of the 24-hour period beginning with the seizure of the equipment;

(ii)the time at which the authorised officer, or a person providing technical assistance to the authorised officer, operates the equipment for the purpose of obtaining information described in subsection (2)(i); or

(b)for any longer period with the consent of the occupier of the premises or place.

(6)Subject to any condition of the warrant, the authorised officer may apply to a magistrate for an extension of the period during which electronic equipment may be secured if the authorised officer reasonably believes that the extension is necessary to obtain information described in subsection (2)(i).

29HFailure to provide assistance

(1)A person must not, without reasonable excuse, fail to comply with a requirement made by an authorised officer under section 29G(3).

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 30 penalty units.

(2)Subsection (1) does not apply to a person if the authorised officer did not inform the person, in accordance with section 29G(4)(b), that it is a reasonable excuse to refuse or fail to comply with the requirement if complying with the requirement would tend to incriminate the person.

29IPowers after entry without consent or warrant

(1)This section applies if an authorised officer enters any premises or place in accordance with section 29A(2)(c).

(2)The authorised officer may do any of the following—

(a)search any part of the premises or place;

(b)inspect and examine any document or thing at the premises or place;

(c)make enquiries with any person at the premises or place;

(d)observe any activity being conducted at the premises or place;

(e)take photographs, or make any type of recording or sketches, of any document, thing or activity at the premises or place;

(f)copy or take an extract from any document at the premises or place;

(g)take into or onto the premises or place any person, equipment and materials;

(h)use and operate any equipment and materials, including but not limited to any disk, tape or storage device, at the premises or place;

(i)  secure any electronic equipment that the authorised officer reasonably believes stores or contains information that may be lost, destroyed or tampered with if the equipment is not secured;

(j)with the consent of the owner of the document or thing, seize any document or any other thing at the premises or place that the authorised officer reasonably believes is evidence—

(i)relevant to whether a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part; or

(ii)that a person or body is an entity that is required to comply with the Child Safe Standards.

(3)The authorised officer may require a person at the premises or place to do any of the following—

(a)produce a document or part of a document located at the premises or place that the authorised officer reasonably believes the person has that relates to whether a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part;

(b)disclose any information that the authorised officer reasonably believes the person has that relates to whether a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part;

(c)operate any equipment at the premises or place to enable the authorised officer to access information stored on the equipment.

(4)If an authorised officer requires a person to do any thing under subsection (3), the authorised officer must—

(a)inform the person that it is an offence to fail or refuse to comply with the requirement without reasonable excuse; and

(b)inform the person that it is a reasonable excuse for the person to refuse or fail to comply with the requirement if complying with the requirement would tend to incriminate the person; and

(c)state the maximum penalty for failing or refusing to comply with the requirement.

(5)The authorised officer may request a person at the premises or place to do any of the following—

(a)provide the authorised officer with any reasonable assistance;

(b)comply with any lawful direction, whether written or oral, of the authorised officer.

(6)An authorised officer may exercise a power under subsection (2), (3) or (5) only if the authorised officer reasonably believes it is reasonably necessary to do so to investigate whether—

(a)a relevant entity is not complying, or has not complied, with the Child Safe Standards or this Part; or

(b)a person or body is an entity that is required to comply with the Child Safe Standards.

(7)If the authorised officer secures any electronic equipment under subsection (2)(i), that equipment may be secured—

(a)subject to subsection (8), until the earlier of the following—

(i)the end of the 24-hour period beginning with the seizure of the equipment;

(ii)the time at which the authorised officer, or a person providing technical assistance to the authorised officer, operates the equipment for the purpose of obtaining information described in subsection (2)(i); or

(b)for any longer period with the consent of the occupier of the premises or place.

(8)The authorised officer may apply to a magistrate for an extension of the period during which electronic equipment may be secured if the authorised officer reasonably believes that the extension is necessary to obtain information described in subsection (2)(i).

29JAcknowledgment of seizure during entry without consent

(1)The authorised officer must not seize any document or thing under section 29I(2)(j) unless the authorised officer—

(a)informs the owner that the owner may refuse to consent to the seizure; and

(b)asks the owner to sign an acknowledgement setting out—

(i)that the owner consents to the seizure of the document or thing; and

(ii)the time and date the owner provided consent.

(2)An owner who signs an acknowledgement under subsection (1) must be given a copy of the signed acknowledgement before the authorised officer leaves the premises.

(3)A signed acknowledgement under subsection (1) is evidence that the owner consented to the seizure of a document or thing.

(4)If, in any proceeding, a signed acknowledgement under subsection (1) is not produced to the court or tribunal, it must be presumed until the contrary is proved that the owner did not consent to the seizure of a document or thing.

29KFailure to provide assistance

(1)A person must not, without reasonable excuse, fail to comply with a requirement made by an authorised officer under section 29I(3).

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 30 penalty units.

(2)Subsection (1) does not apply to a person if the authorised officer did not inform the person, in accordance with section 29I(4)(b), that it is a reasonable excuse to refuse or fail to comply with the requirement if complying with the requirement would tend to incriminate the person.

29LAuthorised officer may interview child

(1)While exercising a power under section 29C(2), 29G(2) or 29I(2), an authorised officer may interview a child present at the premises or place.

(2)Before interviewing a child, the authorised officer must consider, and take all reasonable steps to mitigate, any negative effect that the interview may have on the child.

(3)Without limiting subsection (2), the authorised officer must consider whether the child's primary family carer (within the meaning of the Commission for Children and Young People Act 2012) should be present during the interview.

29MAffidavits

An authorised officer who is an authorised affidavit taker within the meaning of the Oaths and Affirmations Act 2018 may take an affidavit after entry to any premises or place in accordance with section 29A(2).

29NSeizure of documents and things

(1)If an authorised officer seizes a document or thing during entry to a premises or place under section 29C or 29I or under a warrant issued under section 29E, the authorised officer must—

(a)give the owner of the document or thing a written receipt of the seizure; and

(b)within 21 days of the seizure, give the owner a copy of that document certified by the authorised officer.

(2)A receipt under subsection (1)(a) must—

(a)identify the document or thing seized; and

(b)set out the name of the authorised officer and a method of contacting the authorised officer; and

(c)set out the reason for the seizure; and

(d)contain any prescribed information.

(3)The authorised officer must return any seized document or thing to the owner—

(a)if the reason for the seizure no longer applies; or

(b)if the document or thing was seized under section 29C(2) or 29I(2), the owner of the document or thing withdraws consent for the seizure.

(4)If a seized document or thing is not returned to the owner within 3 months of the seizure, the authorised officer must take reasonable steps to return the document or thing to the owner unless—

(a)the proceedings or investigation for which the document or thing was seized has commenced but is not resolved or finally determined; or

(b)the Magistrates' Court by order extends the period during which the seized document or thing may be held; or

(c)the owner consents to the document or thing being held for a longer period; or

(d)the authorised officer is authorised by any law to destroy, continue to hold or dispose of the document or thing.

(5)The authorised officer may apply to a magistrate for an extension of not more than 3 months of the period during which a seized document or thing may be held.

(6)The magistrate must not grant the extension sought unless the magistrate is satisfied that the extension is necessary for the purposes of an investigation into whether a relevant entity is complying, or has complied, with the Child Safe Standards or this Part.

(7)If the authorised officer makes an application for an extension under subsection (5), the authorised officer must give the owner at least 7 days' notice of the hearing of the application.

(8)The total period of all extensions granted under subsection (6) in relation to a particular document or thing must not exceed 12 months.

29ODestruction of seized document or thing

(1)If, after taking reasonable steps to do so, an authorised officer is not able to return a document or thing seized under section 29C or 29I, or under a warrant issued under section 29E, to the owner, a sector regulator may apply to a magistrate for permission to destroy the document or thing.

(2)If a sector regulator applies under subsection (1) for permission to destroy a document or thing, the sector regulator must serve a copy of the application on the owner.

(3)The magistrate may—

(a)grant the permission sought if the magistrate considers it appropriate to do so; and

(b)make any other order the magistrate considers appropriate, including but not limited to an order for the payment of costs for the destruction of the document or thing.

29POffence to obstruct authorised officer

A person must not hinder or obstruct—

(a)an authorised officer exercising a power under this Part; or

(b)a person who is assisting an authorised officer exercising a power under this Part.

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 30 penalty units.

29QOffence to impersonate authorised officer

A person who is not an authorised officer must not, in any way, hold themselves out to be an authorised officer.

Penalty:30 penalty units.

29RComplaints

(1)Any person may complain about the exercise of a power by an authorised officer under this Part or a warrant issued under section 29E to the sector regulator that appointed the authorised officer.

(2)A complaint to a sector regulator under subsection (1) may be made in writing or in any other form approved by the sector regulator.

(3)On receiving a complaint under subsection (1), the sector regulator must—

(a)investigate the complaint; and

(b)provide a written report to the complainant and the authorised officer on the results of the investigation.

(4)Before finalising a report under subsection (3), the sector regulator must—

(a)give the authorised officer an opportunity to comment on the proposed report within a period ending not less than 14 days after the authorised officer receives the report; and

(b)consider any comments that the authorised officer provides to the sector regulator within that period.

29SPower to bring proceedings

A sector regulator may bring proceedings for an offence against this Part or the regulations.".

25Notice to produce

(1)For section 30(1) of the Principal Act substitute—

"(1)This section applies if a sector regulator reasonably believes that any document or information is necessary to determine whether—

(a)a relevant entity for which it is a sector regulator is complying with the Child Safe Standards; or

(b)a person or body is an entity that is required to comply with the Child Safe Standards.

(1A)The sector regulator may issue a written notice requiring the following to produce the document or information—

(a)any relevant entity for which it is a sector regulator; or

(b)any person or body that the sector regulator reasonably believes possesses the document or information.".

(2)In section 30(2) of the Principal Act—

(a)for "subsection (1)" substitute "subsection (1A)";

(b)for paragraph (b) substitute—

"(b)must specify the following—

(i)the relevant entity, person or body to which the notice is issued;

(ii)the document or information, or category of document or information, that must be produced;

(iii)in the case of a notice for the purposes of subsection (1)(a), the Child Safe Standards to which the document or information relates;

(iv)the date by which the document or information must be produced, being not less than 14 days after the day on which the notice is given to the relevant entity or person;

(v)any enforcement action that may be taken against the relevant entity or person for failing to comply with the notice;

(vi)the maximum criminal and civil penalty for failing to comply with the notice;

(vii)the process for seeking an internal review of the decision to issue the notice;

(viii)any prescribed matters.".

(3)In section 30(3) of the Principal Act—

(a)for "relevant entity given a notice under subsection (1)" substitute "relevant entity, person or body given a notice under subsection (1A)";

(b)for "Commission" substitute "sector regulator".

(4)In section 30(4) of the Principal Act, for "Commission" substitute "sector regulator".

26Notice to comply

(1)In section 31(1) of the Principal Act—

(a)for "The Commission" substitute "A sector regulator";

(b)for "the Commission" substitute "the sector regulator";

(c)after "a relevant entity" insert "for which it is a sector regulator".

(2)In section 31(2)(b) of the Principal Act—

(a)in subparagraph (ii), for "Commission" substitute "sector regulator";

(b)for subparagraph (v) substitute—

"(v)any enforcement action that may be taken against the relevant entity for failing to comply with the notice;

(va)the maximum criminal and civil penalty for failing to comply with the notice;".

(3)In section 31(4) of the Principal Act, for "Commission" substitute "sector regulator".

(4)In section 31(5) of the Principal Act, for "Commission" substitute "sector regulator".

27Section 32 substituted

For section 32 of the Principal Act substitute—

"32   False or misleading information

(1)A person must not in purported compliance with this Part—

(a)give information or make a statement that the person knows to be false or misleading in a material particular; or

(b)produce a document that the person knows to be false or misleading in a material particular without indicating the respect in which it is false or misleading and, if practicable, providing correct information.

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 30 penalty units.

(2)It is a defence to a charge under subsection (1) if the person reasonably does not know that the information, statement or document is false or misleading.  

32A Criminal liability of officers of relevant entities—failure to exercise due diligence

(1)If a relevant entity that is a body corporate commits an offence against section 34D, an officer of that relevant entity also commits an offence against the provision if the officer failed to exercise due diligence to prevent the commission of the offence by the relevant entity.

(2)In determining whether an officer of a relevant entity exercised due diligence, a court may have regard to—

(a)what the officer knew, or ought reasonably to have known, about the commission of the offence by the relevant entity; and

(b)whether or not the officer was in a position to influence the relevant entity in relation to the commission of the offence by the relevant entity; and

(c)what steps the officer took, or could reasonably have taken, to prevent the commission of the offence by the relevant entity; and

(d)any other relevant matter.

(3)Without limiting any other defence available to the officer, an officer of a relevant entity may rely on a defence that would be available to the relevant entity if it were charged with the offence with which the officer is charged and, in doing so, the officer bears the same burden of proof that the relevant entity would bear.

(4)An officer of a body corporate may commit an offence against section 34D whether or not the relevant entity has been prosecuted for, or found guilty of, an offence against that section.

(5)In this section—

body corporate has the same meaning as corporation has in section 57A of the Corporations Act;

officer, in relation to a relevant entity, means—

(a)a person who is an officer (as defined by section 9 of the Corporations Act) of the relevant entity; or

(b)a person (other than a person referred to in paragraph (a)), by whatever name called, who is concerned in, or takes part in, the management of the relevant entity.

32BImmunity

(1)The Commission, a sector regulator or an integrated sector regulator, or a person employed or engaged by the Commission, a sector regulator or an integrated sector regulator, is not personally liable for any thing done or omitted to be done in good faith—

(a)in the exercise of a power or the discharge of a duty under this Part or the regulations other than a power or duty under this Division; or

(b)in the reasonable belief that the act or omission was in the exercise of a power or the discharge of a duty under this Part or the regulations other than this Division.

(2)Any liability resulting from an act or omission that would but for subsection (1) attach to the Commission, a sector regulator or an integrated sector regulator, or a person employed or engaged by the Commission, a sector regulator or an integrated sector regulator, attaches to the Crown.

32CNomination of proper defendant

(1)This section applies if a relevant entity is not capable of being sued in relation to any claim founded on or arising from a contravention of this Part.

(2)The relevant entity, with the consent of the nominee, may nominate an entity that is capable of being sued—

(a)to act as a proper defendant to the claim on behalf of the relevant entity; and

(b)to incur any liability arising from the claim on behalf of the relevant entity.

(3)If a relevant entity nominates a proper defendant under subsection (2), the nominee—

(a)is taken to be the defendant (however described) in the claim on behalf of the relevant entity for all purposes; and

(b)incurs any liability arising from that claim on behalf of the relevant entity as if the relevant entity had been incorporated and capable of being sued and found liable for the contravention; and

(c)must comply with any order or direction of the court arising from the claim on behalf of the relevant entity as if the relevant entity had been incorporated and capable of being sued and found liable for the contravention.

(4)The relevant entity must nominate a proper defendant within 120 days after the commencement of the proceeding for the claim against the relevant entity, unless the court orders otherwise.

(5)If the relevant entity does not nominate a proper defendant within 120 days after the commencement of the proceeding for the claim (or any other period ordered by the court), the sector regulator bringing the proceeding for the claim may apply to the court for an order that the claim is to proceed against another entity that is capable of being sued on behalf of the relevant entity.

(6)A court may substantively determine a claim in a proceeding founded on or arising from a contravention of this Part for which there is a proper defendant under this section as if the relevant entity itself were incorporated and capable of being sued and found liable for the contravention of this Part in respect of the claim.

(7)The nomination of, or failure to nominate, a proper defendant under this section does not relieve a relevant entity from any obligations it may have in relation to the conduct of the proceeding, including any interlocutory matters, and for that purpose, the relevant entity is taken to be incorporated and capable of being sued and found liable for the contravention of this Part in respect of the claim.".

28Application to court

(1)For section 33(1) of the Principal Act substitute—

"(1)If a person, body or relevant entity, without reasonable excuse, fails to comply with a notice to produce, the sector regulator that gave the notice may apply to a court for any or all of the following—

(a)a declaration that the person, body or relevant entity has failed to comply with the notice to produce;

(b)an order requiring the person, body or relevant entity to pay a pecuniary penalty;

(c)an injunction under section 34A.

(1A)If a relevant entity, without reasonable excuse, fails to comply with a notice to comply, the sector regulator that gave the notice may apply to a court for any or all of the following—

(a)a declaration that the relevant entity has failed to comply with the notice to comply;

(b)an order requiring the relevant entity to pay a pecuniary penalty;

(c)an injunction under section 34A.".

(2)In section 33(2) of the Principal Act—

(a)after "declaration sought" insert "under subsection (1) or (1A)";

(b)paragraph (a) is repealed;

(c)in paragraph (b), for "the relevant entity" substitute "the person, body or relevant entity".

(3)After section 33(2) of the Principal Act insert—

"(3)The court may grant an injunction in response to an application under subsection (1)(c) or (1A)(c) requiring a person, body or relevant entity to do a thing—

(a)if the court makes a declaration under subsection (2) that the person, body or relevant entity has failed to comply with a notice to produce or a notice to comply; and

(b)whether or not the court orders the person, body or relevant entity to pay a pecuniary penalty.".

29Civil penalty

(1)In section 34(1) of the Principal Act—

(a)for "relevant entity" (where twice occurring) substitute "person, body or relevant entity";

(b)for "Commission" substitute "sector regulator that gave the notice";

(c)for "60 penalty units" substitute "120 penalty units in the case of a body corporate or 60 penalty units in any other case".

(2)In section 34(2) of the Principal Act, for "relevant entity" (wherever occurring) substitute "person, body or relevant entity".

(3)In section 34(4) of the Principal Act—

(a)for "the Commission" (where first occurring) substitute "a sector regulator";

(b)for "the Commission" (where second occurring) substitute "the sector regulator".

30New sections 34A to 34E inserted

After section 34 of the Principal Act insert—

"34A   Injunctions

(1)On an application by a sector regulator, a court may grant an injunction, in the terms the court considers appropriate, if the court is satisfied that a person, body or relevant entity—

(a)has failed to comply with a notice to produce or a notice to comply; or

(b)is required to comply with the Child Safe Standards and has failed, or is likely to fail, to do so.

(2)Without limiting subsection (1), the court may grant an injunction under that subsection—

(a)to restrain a person, body or relevant entity from engaging in specified conduct that the Court reasonably considers is likely to harm a child; or

(b)to restrain a person, body or relevant entity from providing specified services or facilities to children before the failure to comply is rectified; or

(c)to restrain a person, body or relevant entity from employing or engaging children before the failure to comply is rectified; or

(d)to require a person, body or relevant entity to do a specified act or thing that the court considers reasonably necessary to prevent, minimise or remedy the failure to comply; or

(e)to require a person, body or relevant entity to institute training programmes for persons employed or engaged by the person, body or relevant entity.

(3)The power of the court to grant an injunction under subsection (1) may be exercised whether or not the person, body or relevant entity—

(a)is likely to fail to comply with the Child Safe Standards or notice (as appropriate) in the future; or

(b)has previously failed to comply with the Child Safe Standards, a notice to produce or a notice to comply.

(4)The court may, if it considers that it is appropriate to do so, grant an injunction under subsection (1) by consent of all the parties to the proceeding, whether or not the court is satisfied as required by subsection (1).

34BInterim injunctions

(1)On the application of a sector regulator, a court may grant an interim injunction, in the terms the court considers appropriate, pending the determination of an application by the sector regulator for an injunction under section 34A.

(2)An application for an interim injunction under subsection (1) may be made ex parte.

34CAdverse publicity orders

(1)On the application of a sector regulator, a court may order a relevant entity to do one or more of the actions set out in subsection (2) if—

(a)the relevant entity is convicted or found guilty in criminal proceedings for an offence under this Part that is constituted by the failure of the relevant entity to comply with a notice to produce or a notice to comply; or

(b)a declaration is made under section 33(1)(a) or (1A)(a) that the relevant entity has failed to comply with a notice to produce or a notice to comply.

(2)The court may order that the relevant entity take any specified action that the court considers reasonably necessary to publicise or notify any specified person or class of person of—

(a)the relevant entity's offence or failure to comply with the notice to produce or notice to comply; or

(b)the relevant entity's failure to comply with the Child Safe Standards that caused the giving of the notice or the making of the declaration (as appropriate); or

(c)any harm, or risk of harm, caused by the relevant entity's failure to comply with the notice; or

(d)any penalties imposed, or other orders made, as a result of the commission of the offence or failure to comply; or

(e)any other information the court considers appropriate.

(3)An application for an order under this section must be made within 6 months after the conviction, finding of guilt or declaration referred to in subsection (1) (as appropriate).

34DOffence to fail to comply with notice to produce or notice to comply

A person must not, without reasonable excuse, fail to comply with a notice to produce or a notice to comply.

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 60 penalty units.

34EPending criminal or civil proceedings

(1)If a sector regulator applies under section 33(1) or (1A) for a declaration, an order or an injunction against a person, body or relevant entity for failing to comply with a notice to produce or notice to comply, the sector regulator must not commence criminal proceedings for a charge against section 34D that is constituted by the failure or alleged failure of that person, body or relevant entity to comply with that notice.

(2)Subsection (1) applies whether or not the court makes a declaration or order or grants an injunction in response to an application under section 33(1) or (1A).

(3)If a person, body or relevant entity has been convicted or found guilty of an offence against section 34D, or a charge against the person, body or relevant entity for an offence against section 34D is pending, that is constituted by the failure or alleged failure of that person, body or relevant entity to comply with a notice to produce or notice comply—

(a)a sector regulator may not apply under section 33(1)(b) or (1A)(b) for an order for the person, body or relevant entity to pay a pecuniary penalty for failure to comply with that notice; and

(b)the court may not order the person, body or relevant entity to pay a pecuniary penalty for failure to comply with that notice.".

31Protection against self-incrimination

(1)For the heading to section 35 of the Principal Act substitute—

"Reasonable excuse".

(2)In section 35 of the Principal Act—

(a)omit "requested to do under section 26 or 29 or";

(2)An application for an interim injunction under subsection (1) may be made ex parte.

5.8.15Offence to fail to comply with notice to produce

(1)A person or body must not, without reasonable excuse, fail to comply with a notice to produce issued under section 5.8.10.

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 60 penalty units.

(2)It is a reasonable excuse for a person or body to refuse or fail to comply with a notice to produce issued under section 5.8.10 if the person or body—

(a)took all actions that were reasonable for the person or body to take in the circumstances; and

(b)believed on reasonable grounds that the person or body was not able to produce the document or information specified in the notice.

(3)It is a reasonable excuse for a natural person to refuse or fail to comply with a notice to produce issued under section 5.8.10 if producing the document or information specified in the notice would tend to incriminate the person.

5.8.16Infringement notices

(1)An authorised officer appointed under section 5.8.1 may issue to or serve an infringement notice on any person or body that the authorised officer reasonably believes has committed a prescribed offence against this Division.

(2)An offence referred to in subsection (1) for which an infringement notice may be served is an infringement offence within the meaning of the Infringements Act 2006.

(3)The infringement penalty for an offence referred to in subsection (1) is the prescribed penalty.

(4)For the purposes of subsection (1), an infringement notice—

(a)must be in the form required by the Infringements Act 2006; and

(b)may contain any additional information approved by the Authority.

Division 6—Notices to comply

5.8.17Application of Division

This Division applies to a relevant entity for which the Authority is an integrated sector regulator that—

(a)is registered under Division 3 of Part 4.3; or

(b)is approved under Part 4.5; or

(c)is approved under Part 4.5A.

5.8.18Notice to comply

(1)The Authority may give a relevant entity to which this Division applies a notice to comply if the Authority believes on reasonable grounds that the relevant entity is not complying with a requirement that relates to—

(a)the registration of the relevant entity under Division 3 of Part 4.3; or

(b)the approval of the relevant entity under Part 4.5 or 4.5A.

(2)A notice to comply—

(a)must be in the prescribed form (if any); and

(b)must specify the following—

(i)the reason for the issue of the notice to comply;

(ii)the Child Safe Standards or requirement that the Authority believes the relevant entity is not complying with and the grounds for that belief;

(iii)the action that the relevant entity is required to take to address any issues that have been identified in the notice to comply;

(iv)that the relevant entity must take the action specified in the notice to comply—

(A)within 14 days after the day on which the notice is given; or

(B)before any earlier day specified in the notice;

(v)any enforcement action that may be taken against the relevant entity for failing to comply with the notice;

(vi)the maximum criminal and civil penalty for failing to comply with the notice;

(vii)the process for seeking a review of the decision to issue the notice;

(viii)the prescribed matters (if any); and

(c)must be accompanied by any recommendations or advice available to assist the relevant entity to address the issues identified in the notice.

(3)The Authority may specify a day for the purposes of subsection (2)(b)(iv)(B) only in exceptional circumstances.

(4)The Authority may vary or revoke a notice to comply by written notice to the relevant entity.

(5)In this section—

exceptional circumstances include circumstances in which urgent action is required—

(a)because of significant non-compliance by the relevant entity with the Child Safe Standards or a requirement that relates to the registration or approval of the relevant entity under this Act; or

(b)to safeguard a child from harm.

5.8.19Application to court

(1)If a relevant entity fails to comply with a notice to comply, the Authority may apply to the County Court or the Magistrates' Court for—

(a)a declaration that the relevant entity has failed to comply with the notice; and

(b)an order requiring the relevant entity to pay a pecuniary penalty; and

(c)an injunction under section 5.8.21.

(2)The Court may make the declaration sought if the Court is satisfied that—

(a)the relevant entity is an entity that is required to comply with the Child Safe Standards or a registration requirement under this Act; and

(b)the relevant entity has failed to comply with the notice; and

(c)the failure to comply was unreasonable.

5.8.20Civil penalty

(1)If a Court makes a declaration under section 5.8.19(2) that a relevant entity has failed to comply with a notice to comply, the Court may order the relevant entity to pay to the Authority a pecuniary penalty not exceeding 120 penalty units, in the case of a body corporate, or 60 penalty units in any other case.

(2)In determining the amount of the pecuniary penalty under subsection (1), the Court must take into account the following considerations—

(a)in the case of a relevant entity that is not an individual, the size of the relevant entity;

(b)the impact of the amount of the penalty on the relevant entity;

(c)whether the non-compliance by the relevant entity with the notice to comply was wilful or serious.

(3)An order made under this section is taken, for the purposes of enforcement, to be an order made by the Court in a civil proceeding.

(4)A pecuniary penalty paid to the Authority in accordance with an order made under this section must be paid by the Authority into the Consolidated Fund.

5.8.21Injunctions

(1)On an application by the Authority, a Court may grant an injunction, in the terms the Court considers appropriate, if the Court is satisfied that a relevant entity for which the Authority is an integrated sector regulator—

(a)has failed to comply with a notice to comply issued under section 5.8.18; or

(b)is required to comply with the Child Safe Standards, or a requirement that relates to the registration or approval of the relevant entity under this Act, and has failed, or is likely to fail, to do so.

(2)Without limiting subsection (1), the Court may grant an injunction under that subsection—

(a)to restrain a person, body or relevant entity from engaging in specified conduct that the Court reasonably considers is likely to harm a child; or

(b)to restrain a person, body or relevant entity from providing specified services to children before the failure to comply is rectified; or

(c)to restrain a person, body or relevant entity from employing or engaging children before the failure to comply is rectified; or

(d)to require a person, body or relevant entity to do a specified act or thing that the Court considers reasonably necessary to prevent, minimise or remedy the failure to comply; or

(e)to require a person, body or relevant entity to institute training programmes for persons employed or engaged by the person, body or relevant entity.

(3)The power of the Court to grant an injunction under subsection (1) may be exercised whether or not —

(a)the relevant entity is likely to fail to comply with the Child Safe Standards, requirement or notice (as appropriate) in the future; or

(b)if the Authority has applied for an order or declaration under section 5.8.19, the Court has made an order or declaration under that section.

5.8.22Offence to fail to comply with notice to comply

(1)A relevant entity must not, without reasonable excuse, fail to comply with a notice to comply issued under section 5.8.18.

Penalty:In the case of a body corporate, 120 penalty units;

In any other case, 60 penalty units.

(2)It is a reasonable excuse for a relevant entity to refuse or fail to comply with a notice to comply issued under 5.8.18 if the relevant entity—

(a)took all actions that were reasonable for the relevant entity to take in the circumstances; and

(b)believed on reasonable grounds that the relevant entity was unable to comply with the notice.

(3)It is a reasonable excuse for a natural person to refuse or fail to comply with a notice to comply issued under section 5.8.18 if taking the action specified in the notice would tend to incriminate the person.

Division 7—Pending criminal or civil proceedings

5.8.23Pending criminal or civil proceedings

(1)If the Authority applies for a declaration, order or injunction under section 5.8.11 or 5.8.19 against a person or body for failing to comply with a notice to produce or notice to comply, the Authority must not commence criminal proceedings for a charge against section 5.8.15 or 5.8.22 that is constituted by the failure or alleged failure of that person or body to comply with that notice.

(2)Subsection (1) applies whether or not the Court makes a declaration or order or grants an injunction in response to an application under section 5.8.11 or 5.8.19.

(3)If a relevant entity has been convicted or found guilty of an offence against section 5.8.15 or 5.8.22, or a charge against the relevant entity for an offence against section 5.8.15 or 5.8.22 is pending, that is constituted by the failure or alleged failure of that relevant entity to comply with a notice to produce or notice to comply—

(a)the Authority may not apply under section 5.8.11(1)(b) or 5.8.19(1)(b) for an order for the relevant entity to pay a pecuniary penalty for failure to comply with that notice; and

(b)the Court may not order the relevant entity to pay a pecuniary penalty for failure to comply with that notice.

Division 8—Official warnings

5.8.24Official warnings

(1)The Authority may issue an official warning to—

(a)a relevant entity for which it is an integrated sector regulator; or

(b)any other person or body to which it has issued a notice to produce or notice to comply.

(2)An official warning must state—

(a)that the Authority suspects one or more of the following—

(i)the person, body or relevant entity is failing, or has failed, to comply with a notice to produce issued under section 5.8.10 or a notice to comply issued under section 5.8.18;

(ii)the person, body or relevant entity is failing, or has failed, to comply with the Child Safe Standards;

(iii)the person, body or relevant entity is failing, or has failed, to comply with a requirement that relates to the registration or approval of the person or body under this Act;

(iv)the person, body or relevant entity is committing, or has committed, an offence against section 5.8.15 or 5.8.22; and

(b)the details of the suspected failure or offence specified under paragraph (a); and

(c)the grounds for the Authority's suspicion; and

(d)that non-compliance or offending may be the subject of enforcement action by the Authority under this Act; and

(e)any other matter the Authority considers appropriate.

Division 9—Enforceable undertakings

5.8.25Application of Division

This Division applies to—

(a)a person, body or school registered under Division 3 of Part 4.3; or

(b)a school, University or institution approved under Part 4.5; or

(c)a person, organisation or school approved under Part 4.5A.

Note

For undertakings given by registered schools, see section 4.3.3A. For undertakings given by providers of school boarding services, see section 4.3.8J. For undertakings given by RTOs, see section 5.8.3V.

5.8.26Enforceable undertakings

(1)The Authority may accept a written undertaking from a relevant entity for which it is an integrated sector regulator in connection with—

(a)a failure to comply with a notice to comply issued under section 5.8.18; or

(b)a failure to comply with a requirement that relates to the registration of the relevant entity under Division 3 of Part 4.3; or

(c)a failure to comply with a requirement that relates to the approval of the relevant entity under Part 4.5 or 4.5A; or

(d)a reasonable suspicion of the Authority that there is, or has been, a failure to comply with a notice to comply issued under section 5.8.18; or

(e)a reasonable suspicion of the Authority that there is, or has been, a failure to comply with a requirement that relates to the registration of the relevant entity under Division 3 of Part 4.3; or

(f)a reasonable suspicion of the Authority that there is, or has been, a failure to comply with a requirement that relates to the approval of the relevant entity under Part 4.5 or 4.5A.

(2)For the avoidance of doubt, a relevant entity may give an undertaking under this section to establish a trust fund into which students' fees (within the meaning of section 4.3.1A(4)) are paid and the circumstances in which funds may be withdrawn from that trust fund.

(3)For the avoidance of doubt, an undertaking given under this Division may not be inconsistent with this Act or the regulations.

(4)A relevant entity may withdraw or vary an undertaking at any time, if the relevant entity has first obtained the consent of the Authority.

5.8.27Copy of undertaking

The Authority must give a copy of an undertaking given under section 5.8.26 to the relevant entity that gave the undertaking.

5.8.28Register of undertakings

The Authority must—

(a)maintain a register of undertakings it accepts under section 5.8.26; and

(b)register each undertaking given under section 5.8.26 in the register of undertakings.

5.8.29Authority may apply for Court order if undertaking breached

(1)If the Authority considers that a relevant entity has breached any of the terms of an undertaking accepted by the Authority under section 5.8.26, the Authority may apply to the Magistrates' Court for an order under subsection (2).

(2)If the Magistrates' Court is satisfied that the relevant entity has breached a condition of the undertaking, the Magistrates' Court may make all or any of the following orders—

(a)an order directing the relevant entity to comply with the condition of the undertaking;

(b)an order directing the relevant entity to pay to the State an amount up to the amount of any financial benefit that the relevant entity has obtained directly or indirectly and that is reasonably attributable to the breach;

(c)any order that the Magistrates' Court considers appropriate directing the relevant entity to compensate any other person who has suffered loss, injury or damage as a result of the breach;

(d)any other order that the Magistrates' Court considers appropriate.

(3)If a body corporate is found to have breached an undertaking accepted by the Authority under section 5.8.26—

(a)each officer of the body corporate is deemed to have so breached the undertaking if the officer knowingly authorised or permitted the breach; and

(b)the Magistrates' Court may, against the officer, make all or any of the orders set out in subsection (2) that the Magistrates' Court thinks appropriate.

Division 10—Adverse publicity orders

5.8.30Court may make adverse publicity order

(1)This section applies if—

(a)a relevant entity for which the Authority is an integrated sector regulator is convicted or found guilty of an offence against section 5.8.15 or 5.8.22; or

(b)a Court has made a declaration under section 5.8.11 or 5.8.19 that the relevant entity has failed to comply with a notice to produce or a notice to comply.

(2)The Court may order the relevant entity to take all or any of the following actions—  

(a)to publicise, in the way specified in the order—

(i)details of the basis for the conviction or the making of the finding of guilt or the declaration (as appropriate); or

(ii)any penalty imposed or other order made on the conviction or the making of the finding of guilt or declaration; or

(iii)any other information the Court considers appropriate;

(b)to notify, in the way specified in the order, any person or class of persons of the information set out in paragraph (a).

(3)The Court may make an order under subsection (2) in addition to or instead of—

(a)imposing a penalty on the relevant entity; or

(b)making any other order that the Court may make in relation to the offence or declaration.

(4)The Court may make an order under subsection (2) on its own initiative or on the application of the Authority.

Division 11—Publication of non-compliance

5.8.31Authority may publish details of non-compliance

(1)Subject to any order of the County Court or the Magistrates' Court, the Authority may, if the Authority considers it in the public interest, publish information specified in subsection (2) on a website maintained by the Authority if—

(a)a relevant entity for which the Authority is an integrated sector regulator is convicted or found guilty of an offence against section 5.8.15 or 5.8.22; or

(b)a Court has made a declaration under section 5.8.11 or 5.8.19 that the relevant entity has failed to comply with a notice to produce or notice to comply.

(2)For the purposes of subsection (1), the following information is specified—

(a)the name of the relevant entity, including any business or trading name of the relevant entity or any other name by which the relevant entity is commonly known;

(b)the date of the conviction, finding of guilt or declaration;

(c)in the case of a conviction or finding of guilt, the offence to which the conviction or finding of guilt relates;

(d)in the case of a declaration, details of the notice to produce or notice to comply that is the subject of the declaration;

(e)whether the court imposed any other penalty in respect of the conduct that was the subject of the conviction, finding of guilt or declaration;

(f)the date on which the Authority most recently updated the information on the website published under this section;

(g)any other prescribed matter.

Division 12—Review by VCAT

5.8.32Review by VCAT

(1)A person whose interests are affected by any of the following decisions of the Authority may apply to VCAT for review of the decision—

(a)to issue a notice to comply under section 5.8.18;

(b)to publish information under section 5.8.31.

(2)An application for review must be made within 28 days after the later of—

(a)the day on which the decision is made; or

(b)if, under the Victorian Civil and Administrative Tribunal Act 1998, the person requests a statement of reasons for the decision, the day on which the statement of reasons is given to the person or the person is informed under section 46(5) of that Act that a statement of reasons will not be given.".

Part 8—Child Wellbeing and Safety Act 2005—miscellaneous

77New section 46ZD inserted

After section 46ZC of the Principal Act insert—

"46ZD   Child Safe Standards regulation making power

(1)The Governor in Council may make regulations for or with respect to any matter or thing required or permitted by this Act to be prescribed or necessary to be prescribed to give effect to Part 6.

(2)Without limiting subsection (1), the Governor in Council may make regulations for or with respect to the following—

(a)prescribing a person or body to be a sector regulator in relation to a relevant entity or a class of relevant entities for the purposes of section 25B;

(b)prescribing a person or body to be an integrated sector regulator in relation to a relevant entity or a class of relevant entities;

(c)prescribing functions of the Commission for the purposes of Part 6;

(d)prescribing a person or body to whom a relevant person may disclose protected information;

(e)prescribing matters on which the Commission may report;  

(f)any savings or transitional provisions required as a consequence of the amendments made by the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021.

(3)The regulations—

(a)may be of general or limited application; and

(b)may differ according to differences in time, place or circumstances; and

(c)may confer a discretionary authority or impose a duty on a specified person or body or a specified class of persons or bodies; and

(d)may leave any matter or thing to be from time to time determined, applied, dispensed with or regulated by a specified person.".

Part 9—Transitional provisions

Division 1—Child Wellbeing and Safety Act 2005

78Heading for new Division 1 of Part 9 inserted

Before section 48 of the Principal Act insert—

"Division 1—Children Legislation Amendment (Reportable Conduct) Act 2017".

79Heading for new Division 2 of Part 9 inserted

Before section 49 of the Principal Act insert—

"Division 2—Children Legislation Amendment (Information Sharing) Act 2018".

80New Division 3 of Part 9 inserted

After section 49 of the Principal Act insert—

"Division 3—Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021

50Definitions

In this Division—

amending Act means the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021;

commencement day means the day on which Part 3 of the amending Act comes into operation;

relevant authority has the same meaning as in section 3(1) immediately before the commencement of Part 2 of the amending Act.

51Pending investigations

(1)This section applies if—

(a)before the commencement day the Commission or a relevant authority, for the purposes of determining whether a relevant entity was complying with the Child Safe Standards—

(i)made a request under section 26, 27 or 28; or

(ii)inspected premises under section 29; or

(iii)issued a notice to comply or a notice to produce; and

(b)immediately before the commencement day the Commission or relevant authority had not finally determined whether the relevant entity was complying with the Child Safe Standards.

(2)The Commission or relevant authority may complete and enforce the determination in accordance with this Act as in force immediately before the commencement day.

(3)Without limiting subsection (2), the Commission or relevant authority, for the purposes of completing or enforcing the determination, may do any or all of the following—

(a)request information or documents, inspect premises or issue a notice to produce or notice to comply under Division 3 of Part 6 as in force before the commencement day;

(b)provide information under section 32 as in force before the commencement day;

(c)apply to a court under section 33 as in force before the commencement day.

52Investigation of conduct before commencement day

(1)This section applies if—

(a)after the commencement day the Commission, a sector regulator or an integrated sector regulator proposes to determine whether a relevant entity has not complied with the Child Safe Standards; and

(b)the conduct alleged to constitute the failure to comply with the Child Safe Standards allegedly occurred before the commencement day; and

(c)immediately before the commencement day the Commission, sector regulator or integrated sector regulator had not done any of the following for the purposes of determining whether the alleged conduct constitutes a failure to comply with the Child Safe Standards—

(i)made a request under section 26, 27 or 28; or

(ii)inspected premises under section 29; or

(iii)issued a notice to comply or a notice to produce.

(2)Subject to subsection (3), the Commission, sector regulator or integrated sector regulator may exercise any power under Part 6 (as in force at the time the power is exercised) for the purposes of determining whether the alleged conduct constitutes a failure to comply with the Child Safe Standards.

(3)The Commission or sector regulator may not do any of the following in relation to the alleged failure to comply (whether or not the relevant entity is finally determined to have failed to comply with the Child Safe Standards)—

(a)issue an official warning to the relevant entity under section 36A;

(b)apply for an interim injunction under section 34B;

(c)accept an enforceable undertaking from the relevant entity under section 36C.".

Division 2—Education and Training Reform Act 2006

81New section 5.10.2A inserted

After section 5.10.2 of the Education and Training Reform Act 2006 insert—

"5.10.2A   Transitional regulations

(1)The Governor in Council may make regulations containing any savings or transitional provisions required as a consequence of the amendments made by the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021.

(2)A regulation mentioned in subsection (1) may be retrospective in operation to the commencement of the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021.".

Part 10—Repeal of this Act

82Repeal of this Act

This Act is repealed on 1 January 2024.

Note

The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984).

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Endnotes

1   General information

See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.

Minister's second reading speech—

Legislative Assembly: 5 May 2021

Legislative Council: 10 June 2021

The long title for the Bill for this Act was "A Bill for an Act to amend the Child Wellbeing and Safety Act 2005 and the Education and Training Reform Act 2006 to provide for compliance with the Child Safe Standards and for other purposes."