Working with Children Amendment Act 2007 (Vic)
Working with Children Amendment Act 2007
No. 56 of 2007
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY
1Purpose
2Commencement
PART 2—AMENDMENT OF WORKING WITH CHILDREN ACT 2005
3Definitions
4What is child-related work?
5Application for working with children check
6Consideration of application
7Category 1 application
8Category 2 application
9Category 3 application
10Outcome of application
11Re-assessment
12Revocation of assessment notice and surrender of document
13Surrender of assessment notice
14Jurisdiction of VCAT
15Engaging in child-related work without an assessment notice
16Offence for holder of negative notice to apply for child-related work
17Offence to engage in child-related work a person who does not have an assessment notice
18Offence for agency to offer the services of a person who does not have an assessment notice
19Delegation
20New section 51 inserted
51Transitional provision—Working with Children Amendment Act 2007
PART 3—AMENDMENT OF OTHER ACTS
Division 1—Amendment of the Children, Youth and Families Act 2005
21Other reports to Secretary of allegations about carers
Division 2—Amendment of Sentencing Act 1991
22New section 134 inserted
134Transitional provision—Working with Children Act 2005
PART 4—REPEAL OF AMENDING ACT
23Repeal of Act
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ENDNOTES
Working with Children Amendment Act 2007
No. 56 of 2007
[Assented to 7 November 2007]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1Purpose
The purpose of this Act is to amend—
(a)the Working with Children Act 2005 to further provide for—
(i)the meaning of parent and child-related work; and
(ii)applications for working with children checks; and
(iii)the revocation and surrender of assessment notices; and
(iv)the jurisdiction of VCAT; and
(v)offences under Part 4; and
(vi)the delegation of the Secretary's powers; and
(b)the Children, Youth and Families Act 2005 to make further provision in relation to the reporting to the Secretary to the Department of Human Services of certain allegations about out of home carers; and
(c)the Sentencing Act 1991 to insert a transitional provision in relation to amendments made to that Act by the Working with Children Act 2005.
2Commencement
(1)This Act (other than sections 4 and 22) comes into operation on the day after the day on which it receives the Royal Assent.
(2)Sections 4 and 22 are deemed to have come into operation on 3 April 2006.
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PART 2—AMENDMENT OF WORKING WITH CHILDREN ACT 2005
3Definitions
(1)In section 3(1) of the Working with Children Act 2005—
(a)in the definition of parent, after "Act 2005" insert "but does not include a foster carer";
(b)in paragraph (f) of the definition of relevant offence, after "section 13(1)(f)" insert
", (fa) or (fb) or section 14(1)(ba) or (bb)".
(2)In section 3(1) of the Working with Children Act 2005 insert the following definitions—
"carnal knowledge offence means an offence specified in clause 1(d)(viii) or (ix) of Schedule 1 to the Sentencing Act 1991;
registered medical practitioner has the same meaning as it has in the Health Professions Registration Act 2005;".
4What is child-related work?
(1)For the Example at the foot of section 9(1) of the Working with Children Act 2005 substitute—
"Example
A is employed as a nurse in the Geriatric ward of a public hospital. One day, a nurse who usually works in the Paediatric ward is unwell and A works in that nurse's place for that day. A is not engaged in child-related work as A's work does not usually involve regular direct contact with children.".
(2)In section 9(1)(b) of the Working with Children Act 2005, for "within the meaning of" substitute "or agreement under".
(3)In section 9(3)(m) of the Working with Children Act 2005 omit "private".
(4)For section 9(8) of the Working with Children Act 2005 substitute—
"(8)For the purposes of this Act, a person is not engaged in child-related work merely because he or she—
(a)is participating in an activity with a child on the same basis as the child; or
Example
An adult playing in a cricket team alongside a child is not engaging in child-related work.
(b)is supervising a child undertaking practical training as part of an arrangement or agreement under Part 5.4 of the Education and Training Reform Act 2006.".
5Application for working with children check
For section 10(2)(b) of the Working with Children Act 2005 substitute—
"(b)be—
(i)signed by the applicant; or
(ii)if the applicant is not able to sign the application because of an impairment within the meaning of the Equal Opportunity Act 1995, be accompanied by a statement from a registered medical practitioner certifying—
(A)that the person suffers from such an impairment; and
(B)that the person is not able to sign the application because of that impairment; and".
6Consideration of application
In section 11(3) of the Working with Children Act 2005, after "by or under any Act" insert "(including the Judicial Proceedings Reports Act 1958)".
7Category 1 application
(1)In section 12(1)(c) of the Working with Children Act 2005, after "child pornography offence" insert "or carnal knowledge offence".
(2)After section 12(2) of the Working with Children Act 2005 insert—
"(3)Despite subsection (2), the Secretary may give an assessment notice on a category 1 application if—
(a)the application is in respect of a person who has at any time been given an assessment notice because of an order made by VCAT under section 26(3); and
(b)a relevant change in circumstances (as defined in section 20(2)) has not occurred with respect to the person; and
(c)the Secretary is satisfied that exceptional circumstances do not exist with respect to the person that justify the refusal of the notice.".
8Category 2 application
In section 13(1) of the Working with Children Act 2005—
(a)after paragraph (a) insert—
"(ab)who, as an adult, has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a carnal knowledge offence; or";
(b)in paragraph (d), after "Act 1981" insert
"or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 71AB or 71B of that Act";
(c)in paragraph (e), after "section 42(3))" insert "or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 46 or 47 of the Sex Offenders Registration Act 2004 or against Part 5 of that Act (other than section 70) or against the Serious Sex Offenders Monitoring Act 2005 (other than section 42(3))";
(d)after paragraph (f) insert—
"(fa)who, as an adult, has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence against section 21A of the Crimes Act 1958 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 21A of that Act, if the person against whom the offence is committed is a child; or
(fb)who, as an adult, has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence against section 60B of the Crimes Act 1958 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 60B of that Act; or";
(e)in paragraph (g), for "(e) or (f)" substitute "(e), (f), (fa) or (fb)".
9Category 3 application
In section 14(1) of the Working with Children Act 2005—
(a)after paragraph (b) insert—
"(ba)who has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence against section 18 of the Crimes Act 1958 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 18 of that Act; or
(bb)who has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of an offence against section 19 of the Summary Offences Act 1966 or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence against section 19 of that Act; or";
(b)in paragraph (c), after "(b)" insert
", (ba) or (bb)".
10Outcome of application
(1)In section 17(1) of the Working with Children Act 2005—
(a)for "The" substitute "Subject to sections 12(2) and (3), 13(2) and 14(2) and subsection (1A), the";
(b)omit "that is not a category 1, 2 or 3 application".
(2)The Note at the foot of section 17(1) of the Working with Children Act 2005 is repealed.
(3)After section 17(1) of the Working with Children Act 2005 insert—
"(1A)The Secretary may refuse to give an assessment notice if—
(a)the applicant has at any time (whether before, on or after the commencement of this section) been charged with, convicted or found guilty of an offence (other than a relevant offence) or has had a charge for an offence (other than a relevant offence) finally dealt with (other than by the applicant being found not guilty of the offence); and
(b)the Secretary is satisfied that—
(i)exceptional circumstances exist with respect to the applicant that justify the refusal of the notice; and
(ii)there is a significant link between the charge, conviction, finding of guilt or final dealing and a risk to the safety of children posed by the applicant.
(1B)In considering whether it is appropriate to refuse to give an assessment notice in the circumstances referred to in subsection (1A), the Secretary must have regard to—
(a)whether because of that charge, conviction, finding of guilt or final dealing, the giving of the notice would pose an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) to (i); and
(b)in the case of an applicant who has been charged with, convicted or found guilty of more than one offence of a kind to which subsection (1A) applies or has had more than one offence of that kind finally dealt with, the period of time between the commission, or alleged commission, of each of the offences.".
11Re-assessment
After section 21(2) of the Working with Children Act 2005 insert—
"(2A)The Secretary may at any time re-assess, in accordance with the provisions of this Act as amended by the Working with Children Amendment Act 2007, a person's eligibility to have an assessment notice that was in force immediately before the commencement of section 11 of that Act.".
12Revocation of assessment notice and surrender of document
(1)For section 23(1) of the Working with Children Act 2005 substitute—
"(1)The Secretary may at any time revoke an assessment notice—
(a)following a re-assessment of the holder's eligibility to have the notice; or
(b)if the Secretary—
(i)becomes aware that the holder of the assessment notice has been charged with, convicted or found guilty of an offence (other than a relevant offence) or has had a charge for an offence (other than a relevant offence) finally dealt with (other than by the holder of the notice being found not guilty of the offence); and
(ii)the Secretary is satisfied that—
(A)exceptional circumstances exist with respect to the holder of the assessment notice that justify the revocation of the notice; and
(B)there is a significant link between the charge, conviction, finding of guilt or final dealing and a risk to the safety of children posed by the applicant.
(1A)In considering whether it is appropriate to revoke an assessment notice in the circumstances referred to in subsection (1)(b), the Secretary must have regard to—
(a)whether because of that charge, conviction, finding of guilt or final dealing, the holding of the assessment notice by the person poses an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) to (i); and
(b)in the case of a holder of an assessment notice who has been charged with, convicted or found guilty of more than one offence of a kind to which subsection (1)(b) applies or has had more than one offence of that kind finally dealt with, the period of time between the commission, or alleged commission, of each of the offences.".
13Surrender of assessment notice
(1)In section 24(2) of the Working with Children Act 2005, for "surrenders a" substitute "surrenders his or her only".
(2)After section 24(2) of the Working with Children Act 2005 insert—
"(3)If the holder of a current assessment notice (the first assessment notice) applies for, and is given, another current assessment notice, the holder must not, without reasonable excuse, refuse or fail to surrender to the Secretary the current assessment notice document that was given to him or her in respect of the first assessment notice, within 7 days after being directed to do so by the Secretary.
Penalty:1 penalty unit.".
14Jurisdiction of VCAT
(1)After section 26(1) of the Working with Children Act 2005 insert—
"(1A)Pending the final determination of an application under subsection (1), VCAT may—
(a)make an order staying the operation of the Secretary's decision to refuse to give an assessment notice; and
(b)make any other order it considers appropriate having regard to the matters set out in subsection (2).".
(2)In section 26(5) of the Working with Children Act 2005—
(a)in paragraph (b), for "application—" substitute "application; or";
(b)after paragraph (b) insert—
"(c)because of a decision of the Secretary to do so under section 17(1A); or
(d)because of a decision of the Secretary under section 23(1) to revoke an assessment notice—".
15Engaging in child-related work without an assessment notice
After section 33(2) of the Working with Children Act 2005 insert—
"(2A)A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, he or she had been given a negative notice by the Secretary and had applied to VCAT—
(a)under section 26(1) for an assessment notice to be given to him or her; or
(b)under section 26(5) for review of a decision of the Secretary to give him or her a negative notice—
and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.".
16Offence for holder of negative notice to apply for child-related work
After section 34(2) of the Working with Children Act 2005 insert—
"(2A)A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, he or she had been given a negative notice by the Secretary and had applied to VCAT—
(a)under section 26(1) for an assessment notice to be given to him or her; or
(b)under section 26(5) for review of a decision of the Secretary to give him or her a negative notice—
and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.".
17Offence to engage in child-related work a person who does not have an assessment notice
After section 35(3) of the Working with Children Act 2005 insert—
"(3A)A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, the worker had been given a negative notice by the Secretary and had applied to VCAT—
(a)under section 26(1) for an assessment notice to be given to him or her; or
(b)under section 26(5) for review of a decision of the Secretary to give him or her a negative notice—
and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.".
18Offence for agency to offer the services of a person who does not have an assessment notice
After section 36(2) of the Working with Children Act 2005 insert—
"(2A)An agency is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, the worker had been given a negative notice by the Secretary and had applied to VCAT—
(a)under section 26(1) for an assessment notice to be given to him or her; or
(b)under section 26(5) for review of a decision of the Secretary to give him or her a negative notice—
and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.".
19Delegation
In section 43 of the Working with Children Act 2005, after "under this Act" insert "or regulations made under this Act".
20New section 51 inserted
After section 50 of the Working with Children Act 2005 insert—
"51 Transitional provision—Working with Children Amendment Act 2007
(1)The amendments made to this Act by the Working with Children Amendment Act 2007 apply to any application for a working with children check that was made but not finally decided or withdrawn immediately before the commencement of section 20 of that Act.
(2)The Secretary must, immediately after the commencement of section 20 of the Working with Children Amendment Act 2007, notify each person who has made an application for a working with children check that was not finally decided or withdrawn immediately before that commencement that his or her application will be assessed in accordance with this Act as amended by that Act, and must give each person a reasonable opportunity to withdraw his or her application if the person wishes to do so.
(3)The amendments made to this Act by sections 12 and 13 of the Working with Children Amendment Act 2007 apply to any assessment notice that was in force immediately before the commencement of those sections.
(4)The amendments made to this Act by section 15, 16, 17 or 18 of the Working with Children Amendment Act 2007 apply to offences committed before, on or after the commencement of that section of that Act.".
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PART 3—AMENDMENT OF OTHER ACTS
Division 1—Amendment of the Children, Youth and Families Act 2005
21Other reports to Secretary of allegations about carers
(1)In section 82(1)(b) of the Children, Youth and Families Act 2005, for "carer." substitute
"carer; or".
(2)After section 82(1)(b) of the Children, Youth and Families Act 2005 insert—
"(c)a person, while acting as a foster carer, has sexually or physically abused a child who was placed in his or her care by a community service approved under section 58(1) of the Children and Young Persons Act 1989; or
(d)a person, while employed or engaged as a carer for children by a community service approved under section 58(1) of the Children and Young Persons Act 1989, has sexually or physically abused a child placed in his or her care by the community service.".
Division 2—Amendment of Sentencing Act 1991
22New section 134 inserted
After section 133 of the Sentencing Act 1991 insert—
"134 Transitional provision—Working with Children Act 2005
(1)The amendments made to this Act by the Working with Children Act 2005 only apply to the sentencing of a person on or after the commencement of that Act in respect of an offence alleged to have been committed on or after that commencement.
(2)For the purpose of subsection (1), if an offence is alleged to have been committed between two dates, one before and one after the commencement of the Working with Children Act 2005, the offence is alleged to have been committed before that commencement.".
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PART 4—REPEAL OF AMENDING ACT
23Repeal of Act
This Act is repealed on the first anniversary of the day on which it receives the Royal Assent.
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ENDNOTES
Minister's second reading speech—
Legislative Assembly: 22 August 2007
Legislative Council: 20 September 2007
The long title for the Bill for this Act was "A Bill for an Act to amend the Working with Children Act 2005, the Children, Youth and Families Act 2005 and the Sentencing Act 1991 and for other purposes."
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