Division 2Division 2 Prohibitions on child-related employment
Subdivision 1 Persons prohibited from being employed in child-related employment
(1) For the purposes of this Division, a prohibited person means:(a) a person convicted of a serious sex offence, the murder of a child or a child-related personal violence offence, whether before or after the commencement of this subsection, or(b) a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.(2) For the purposes of this Division, a person is not a prohibited person in respect of an offence if an order in force under Subdivision 2 declares that this Division is not to apply to the person in respect of the offence.(3) In this Division:child-related personal violence offence means:
(a) an offence committed by an adult involving intentionally wounding or causing grievous bodily harm to a child, or(b) an offence committed by an adult of attempting, or of conspiracy or incitement, to commit an offence referred to in paragraph (a),but does not include an offence committed by an adult who is not more than 3 years older than the child concerned.serious sex offence means (subject to subsections (4) and (5)):
(a) an offence involving sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more, or(b) an offence, involving sexual activity or acts of indecency, that was committed elsewhere and that would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales, or(c) an offence under section 80D or 80E of the Crimes Act 1900, where the person against whom the offence is committed is a child, or(d) an offence under sections 91D–91G of the Crimes Act 1900 (other than if committed by a child prostitute) or a similar offence under a law other than a law of New South Wales, or(e) an offence under section 91H, 578B or 578C (2A) of the Crimes Act 1900 or a similar offence under a law other than a law of New South Wales, or(f) an offence an element of which is an intention to commit an offence referred to in paragraph (a) or (b), or(g) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or(h) any other offence, whether under the law of New South Wales or elsewhere, prescribed by the regulations.Note. A conviction for an offence includes a finding that an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.(4) An offence that was a serious sex offence at the time of its commission is not a serious sex offence for the purposes of this Division if the conduct constituting the offence has ceased to be an offence in New South Wales.(5) An offence involving sexual activity or an act of indecency is not a serious sex offence for the purposes of this Division if the conduct constituting the offence:(a) occurred in a public place, and(b) would not have constituted an offence in New South Wales if the place were not a public place.(6) For the purposes of this Division, section 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence or a child-related personal violence offence.
33C Offences relating to prohibited persons
(1) A prohibited person must not:(a) apply for, or otherwise attempt to obtain, child-related employment, or(b) undertake child-related employment, or(c) remain in child-related employment.Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.
(2) A person is not criminally responsible for an offence against this section if the person did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.
33D Employer to ascertain whether employee is prohibited person
(1) An employer must not commence employing any other person in child-related employment without first requiring that other person to disclose whether or not that other person is a prohibited person.Maximum penalty: 20 penalty units, in the case of a corporation, and 10 penalty units in any other case.
(2) A person must not, in purported compliance with a requirement under this section, make any statement that the person knows is false.Maximum penalty: 100 penalty units, or imprisonment for 12 months, or both.
(3) This section does not apply to the employment of a person in child-related employment if all the children with whom the person is required to have contact in that employment are related to the employer (whether or not the person is related to the employer).Note. Under section 37, an employer also has a duty to carry out background checking procedures in relation to a preferred applicant for primary child-related employment before employing the applicant. An employer who fails to do so may be required, by notice, to comply with his or her duty.
33E Employer not to employ prohibited person in child-related employment
An employer must not commence employing, or continue to employ, in child-related employment a person that the employer knows is a prohibited person.Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
Subdivision 2 Review of prohibition of employment of prohibited persons
In this Subdivision:relevant tribunal—see section 33I.
review application means an application under section 33H or 33I.
33G Persons not entitled to make review applications
(1) A prohibited person who has been convicted of any of the following offences, committed by the person as an adult, is not entitled to make an application under section 33H or 33I:(a) murder of a child,(b) an offence under section 66A, 66B, 66C, 66D or 73 of the Crimes Act 1900 or a similar offence under that Act or any other law involving sexual intercourse with a child (including a law other than a law of New South Wales),(c) an offence under section 91H (2) of the Crimes Act 1900, involving the production of child abuse material, or a similar offence under that Act or a law other than a law of New South Wales,(d) an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs.(2) The Commission or a relevant tribunal may grant leave to a prohibited person to make a review application, despite a conviction for an offence referred to in subsection (1), if the Commission or tribunal is satisfied that:(a) the offence is an offence referred to in subsection (1) (b), or an offence of attempting, or of conspiracy or incitement to commit such an offence, and(b) the prohibited person was not more than 3 years older than the child against whom the offence was committed, and(c) the offence did not involve circumstances of aggravation within the meaning of section 66C of the Crimes Act 1900.
33H Commission may make declarations concerning prohibited persons
(1) On the application of a prohibited person, the Commission may make an order declaring that this Division is not to apply to the person in respect of a specified offence.(2) An application must be made in a form approved by the Commission. An applicant must fully disclose to the Commission any matters relevant to the application.(3) Orders under this section may be made subject to conditions.(4) The Commission is not to make an order that is subject to conditions without the consent in writing of the applicant to the conditions.(5) If the Commission proposes to make an order that is subject to conditions, it is to notify the applicant in writing that:(a) it proposes to make the order subject to the conditions specified in the notification, and(b) the applicant may consent in writing to the making of the order subject to those specified conditions or request the Commission to take no further action, and(c) the Commission will take no further action in relation to the application unless the applicant has consented in writing to the making of the proposed order subject to the specified conditions, and(d) if the applicant does not consent to the making of the order subject to the specified conditions, the applicant may apply under section 33I to the Industrial Relations Commission or the Administrative Decisions Tribunal for an order declaring that this Division is not to apply to the person in respect of a specified offence.(6) If the Commission makes an order, it is to notify the applicant in writing that the Commission has made the order and (if applicable) that the order is subject to the conditions specified in the notification.(7) If the Commission considers that an applicant under this section poses a risk to the safety of children or, for whatever reason, cannot make a decision as to whether the applicant poses such a risk, the Commission is to notify the applicant in writing that:(a) the Commission cannot make an order under this section, and(b) the Commission will take no further action in relation to the application, and(c) the applicant may apply under section 33I to the Industrial Relations Commission or the Administrative Decisions Tribunal for an order declaring that this Division is not to apply to the person in respect of a specified offence.
33I IRC and ADT may make declarations concerning prohibited persons
(1) On the application of a prohibited person, a relevant tribunal may make an order declaring that this Division is not to apply to the person in respect of a specified offence.(2) A relevant tribunal is:(a) the Industrial Relations Commission, or(b) the Administrative Decisions Tribunal.(3) The Commission for Children and Young People is to be a party to any proceedings for an order under this section. The Commission may make submissions in opposition to or support of the making of the order.(4) An applicant must fully disclose to the relevant tribunal any matters relevant to the application.(5) If a relevant tribunal refuses to make an order under this section, the prohibited person is not entitled to make an application for an order under this section or section 33H in respect of that offence until after the period of 5 years from the date of the tribunal’s refusal, unless the tribunal otherwise orders at the time of refusal.(6) Orders under this section may be made subject to conditions.(7) The following applies to proceedings before the Administrative Decisions Tribunal under this section:(a) the Tribunal may not award costs,(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.
33J Matters to be considered in determining review applications
(1) The Commission or a relevant tribunal is not to make an order on a review application unless it is satisfied that the person the subject of the application does not pose a risk to the safety of children.(2) In any proceedings for a review application, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.(3) In deciding whether or not to make an order in relation to a person, the Commission or a relevant tribunal is to take into account the following:(a) the seriousness of the offences with respect to which the person is a prohibited person,(b) the period of time since those offences were committed,(c) the age of the person at the time those offences were committed,(d) the age of each victim of the offences at the time they were committed,(e) the difference in age between the prohibited person and each such victim,(f) whether the person knew, or could reasonably have known, that the victim was a child,(g) the prohibited person’s present age,(h) the seriousness of the prohibited person’s total criminal record,(i) such other matters as the Commission or tribunal considers relevant.
33K Stay pending determination of review application
On a review application, the Commission or a relevant tribunal may, by order, stay the operation of a prohibition under this Division pending the determination of the matter.
33L Multiple applications not permitted
A person may not make a review application under section 33H or 33I if the person has another application pending under either of those sections.
33M Further review of persons who obtain orders
(1) The Commission may apply to a relevant tribunal to revoke or vary an order made under this Subdivision by the Commission or the tribunal.(2) The relevant tribunal may:(a) revoke an order, if it is satisfied, on the basis of fresh evidence provided by the Commission, that the person the subject of the proposed order poses a risk to the safety of children, or(b) vary an order, if it is satisfied, on the basis of fresh evidence provided by the Commission, that the person is likely to pose such a risk if the order is not varied.(3) A relevant tribunal may consider fresh evidence provided by the Commission.(4) Orders under this section may be made subject to conditions.(5) The following applies to proceedings before the Administrative Decisions Tribunal under this section:(a) the Tribunal may not award costs,(b) an appeal lies on a question of law to the Supreme Court by any party to the proceedings.
33N Commissioner of Police to be notified
The Commission or a relevant tribunal must notify the Commissioner of Police of the terms of any order made under this Subdivision by the Commission or tribunal.
33O Jurisdiction of Industrial Relations Commission
The Industrial Relations Commission may not make an order under this Subdivision unless:(a) the person is an employee within the meaning of the Industrial Relations Act 1996 who is liable to be dismissed from that employment under this Act, or(b) the person was such an employee who was dismissed from that employment under this Act.
(1) This section applies to self-employed persons engaged in child-related employment.(2) The regulations may make provision for or with respect to the following matters:(a) additional persons who are not self-employed who may be treated as self-employed persons for the purposes of this section and any regulations made under this section,(b) requirements for obtaining, displaying and producing certificates that a person is not a prohibited person,(c) the issue of such certificates,(c1) the charging of fees for the issue of such certificates, being fees prescribed by the regulations,(d) regulating or prohibiting the engagement of self-employed persons in child-related employment if certificate requirements are not complied with,(e) prohibiting the use of certificates by persons other than self-employed persons,(f) matters ancillary to matters referred to in paragraphs (a)–(e).
33PA Child-related employment to which Division does not apply
(1) This Division does not apply to the employment of a person in child-related employment if:(a) all the children with whom the person is required to have contact in that employment are related to the person, or(b) all the children with whom the person is required to have contact in that employment are related to the employer and the person is related to the employer.(2) For the purposes of this section, a person is related to another person if:(a) the person is a relative of the other person, or(b) the person is the guardian of the other person or a person having the custody of or parental responsibility for the other person (otherwise than as the holder of a public office), or(c) the spouse of the person is related to the other person (as referred to in paragraph (a) or (b)).(3) In this section:relative of a person means the spouse, parent, child, grandparent, grandchild, uncle, aunt, brother, sister, niece or nephew of the person, whether the relationship is of the whole or the half-blood and whether the relationship is natural or depends on the adoption of a person.
spouse of a person includes any person who is living with that other person as that other person’s partner on a bona fide domestic basis.
33Q Prohibited person may be transferred to other employment
This Division does not prevent an employer who removes a prohibited person from child-related employment in accordance with this Division from transferring the person to employment of a different kind.
33R Commission may advise on status
The Commission may, on the application of a person, advise the person as to whether the person is a prohibited person or is eligible to make a review application.
33S Monitoring and auditing functions
(1) The Commission may monitor and audit compliance with requirements and procedures relating to prohibited persons.(2) The Minister may give the Commission a written direction on the exercise of its functions under this section, and the Commission is to comply with any such direction. The Commission is to include any such direction in the Commission’s annual report.