Division 3Division 3 Background checking
34 Nature of background checking
For the purposes of this Division, background checking is any or all of the following procedures with respect to a person who is employed or who has applied to be employed in child-related employment:(a) a check for any relevant criminal record of the person, for any relevant apprehended violence orders made against the person, for any child protection prohibition orders made against the person or for any relevant employment proceedings completed against the person,(b) any other relevant probity check relating to the previous employment or other activities of the person,(c) an estimate of the risk to children involved in that child-related employment arising from anything disclosed by such a check, having regard to all the circumstances of the case, including any risk arising from the particular workplace,(d) the disclosure of the results of any such check or estimate of risk to any person who determines whether the person is to be employed or continue to be employed in that child-related employment (or to a person who advises or makes recommendations on the matter).
35 Guidelines relating to procedures and standards for background checking
(1) The Minister must publish guidelines from time to time relating to the procedures and standards for background checking.(2) Without limiting subsection (1), the guidelines must contain procedures and standards relating to:(a) the confidentiality of information obtained for or as a result of background checking,(b) the information to be provided to persons subject to background checking (including procedures enabling those persons to correct any such information),(c) the information to be provided to (or withheld from) employers by agencies carrying out background checking on their behalf.(3) The guidelines must contain provision for notifying applicants for child-related employment of information obtained about them during background checking that may adversely affect their application. The guidelines must also deal with access by employees or prospective employees to information that is or may be used in background checking.(4), (5) (Repealed)(6) The Minister may, from time to time, amend or revoke guidelines published under this section.(7) Guidelines made under this section, or amendments to guidelines, are to be published in the Gazette and take effect from the date of publication or such later date as is specified in the guidelines or amendments.
36 Functions of Commission in respect of background checking
(1) The Commission may exercise the following functions with respect to background checking:(a) collecting and maintaining (including updating and correcting) a database of relevant apprehended violence orders against any person, child protection prohibition orders made against any person and relevant employment proceedings that have been completed against any person,(b) giving access to information on that database for the purposes of background checking by employers (or employer-related bodies) who have entered into a memorandum of understanding with the Commission on such access and the use of the information obtained,(c) conducting background checking on behalf of employers for whom the Commission has agreed to conduct any such checking,(d) making recommendations to the Minister on appropriate procedures and standards for background checking,(e) promoting public awareness and providing training and advice on appropriate procedures and standards for background checking,(f) monitoring and auditing compliance with the procedures and standards for background checking.(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 the direction. The Commission is to include any such direction in the Commission’s annual report.
37 Background checking mandatory for preferred applicants for certain child-related employment
(1) This section applies to any decision by an employer to employ a person in primary child-related employment, being a person not already employed by the employer in child-related employment of that kind.(2) It is the duty of an employer to carry out all the relevant procedures of background checking of the preferred applicant before employing the preferred applicant in that child-related employment.(3) Some or all of the procedures of background checking may be deferred in a particular case if the employer can establish that it was not reasonably practicable to carry out those procedures in the circumstances. In that case, those procedures are to be carried out as soon as reasonably practicable after the person is employed.(4) An employer may engage:(a) the Commission, or(b) an employer (or employer-related body) approved by the Minister,to carry out all or any of the relevant procedures of background checking on its behalf.(4A) An employer is taken to have fulfilled the employer’s obligations in relation to carrying out a procedure referred to in section 34 (a) and section 34 (c) (to the extent that it relates to a procedure referred to in section 34 (a)) if:(a) the employer engages an approved screening agency to carry out those procedures, and(b) the employer receives the results of carrying out those procedures from that agency.(4B) For the purposes of this section, an employer or an approved screening agency need only carry out such of the procedures referred to in section 34 (a) and section 34 (c) (to the extent that it relates to a procedure referred to in section 34 (a)) in relation to an applicant for employment as are required by this Division, and as are able, to be carried out:(a) at the time the person is being considered for employment, or(b) if the carrying out of the procedures has been deferred as referred to in subsection (3), at the time those procedures are required to be carried out in accordance with that subsection.(5) Nothing in this section gives rise to, or can be taken into account in, any civil cause of action, other than an action to require future compliance of the employer with the duty under this section.(6) In this section and section 37A:primary child-related employment means:
(a) paid child-related employment, or(b) child-related employment of a minister, priest, rabbi, mufti or other like religious leader or spiritual official of a religion, or(c) child-related employment involving the fostering of children, or(c1) child-related employment of a student that involves working in the Department of Human Services, or(c2) child-related employment of a volunteer that involves the mentoring of disadvantaged children, or(c3) child-related employment of a volunteer that involves the provision of personal care services to children with disabilities, but only if the work involves an intimate level of contact with those children (such as assistance with bathing, dressing or toileting), or(d) if the regulations so require—child-related employment of the kind prescribed by the regulations.
37A Background checking for certain short-term employees
(1) This section applies to any decision by an employer to employ a person in primary child-related employment for a period of less than 6 months or such other period as may be prescribed by the regulations.(2) The employer is taken to have complied with section 37 if:(a) background checking procedures have been carried out in accordance with that section in relation to the person within the period of 12 months immediately preceding the employment of the person by the employer, and(b) the background checking procedures were carried out in respect of a decision by the same employer to employ the person in the same kind of primary child-related employment.(3) The employer is taken to have complied with section 37 if:(a) background checking procedures have been carried out in accordance with that section in relation to the person by an employer-related body approved by the Minister within the period of 12 months immediately preceding the employment of the person by the employer, and(b) the background checking procedures were carried out in respect of a decision by the same or another employer to employ the person in the same kind of primary child-related employment.
38 Notification of information relating to relevant criminal records or other orders
(1) The Commissioner of Police may, in accordance with this Division and the regulations, disclose (or arrange for a member of the NSW Police Force to disclose) to the Commission, and to any employer (or employer-related body) approved by the Minister, information relating to any relevant criminal record of persons, or any relevant apprehended violence orders in respect of persons, or any child protection prohibition orders in respect of persons, for the purposes of background checking.(2) The Commission and any such approved employer (or employer-related body) may, in accordance with this Division and the regulations, disclose that information to other employers for the purposes of background checking undertaken by the Commission or approved employer (or employer-related body).(3) Information that may be disclosed under this section includes:(a) information relating to spent convictions, despite anything to the contrary in the Criminal Records Act 1991, and(b) information relating to criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and(c) information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900.(4) This section does not limit the persons to whom, or the circumstances in which, the criminal record of persons, or information relating to relevant apprehended violence orders in respect of persons, may be disclosed apart from this Act.(5) (Repealed)
38A Notification of information relating to criminal history for interstate child-related employment screening
(1) The Commissioner of Police may disclose (or arrange for a member of the NSW Police Force to disclose) information relating to any criminal history of persons to the following persons for the purposes of interstate child-related employment screening:(a) CrimTrac,(b) a police force or service of the Commonwealth or another State or Territory,(c) an approved interstate screening agency.(2) A person to whom information is disclosed under subsection (1) may disclose that information to an approved interstate screening agency for the purposes of interstate child-related employment screening undertaken by the agency.(3) The Commissioner of Police may disclose (or arrange for a member of the NSW Police Force to disclose) to an approved interstate screening agency, at the request of the agency, information relating to the circumstances of an offence or alleged offence disclosed under this section for the purposes of interstate child-related employment screening.(4) Subsection (3) applies:(a) for the period of 12 months after the commencement of this section, or(b) for such further period or periods as may be prescribed by the regulations.(5) Information that may be disclosed under this section includes:(a) information relating to convictions, including spent convictions, quashed convictions and offences for which a pardon has been given, despite anything to the contrary in the Criminal Records Act 1991,(b) information relating to criminal charges, whether heard or not heard, proven, dismissed, withdrawn or discharged,(c) information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900.(6) This section does not limit the persons to whom, or the circumstances in which, information relating to the criminal history, including the criminal record of persons, may be disclosed apart from this Act.(7) In this section:approved interstate screening agency means:
(a) a person or body prescribed by the regulations, or(b) a body that is authorised under a law of the Commonwealth, another State or a Territory to conduct interstate child-related employment screening and is approved by the Minister for the purposes of this section.interstate child-related employment screening means using information about persons who work, or seek to work with children, in a way that is authorised or required under a law of the Commonwealth, another State or a Territory, for the purpose of estimating the risk to the safety of children posed by any such person if working with children.
39 Duties of employers with respect to relevant employment proceedings
(1) It is the duty of an employer to notify the Commission of the name and other identifying particulars of any employee against whom relevant employment proceedings have been completed by the employer, other than proceedings:(a) in which a finding is made that the alleged reportable conduct, or the alleged commission of an act of violence, did not occur, or(b) in which a finding is made that the allegations in respect of which the proceedings were brought were vexatious or misconceived.(1A) For the purposes of this Part, relevant employment proceedings are taken to have been completed when a finding has been made by the employer as to whether the alleged reportable conduct, or the alleged commission of an act of violence, occurred or may have occurred, and a decision has been made by the employer as to what action (if any) is to be taken against the employee in respect of the finding.(2) The employer who notifies the Commission of information under subsection (1) must also notify sufficient details of the proceedings concerned to the Commission and each approved screening agency that requests the information:(a) for the purposes of background checking by the Commission or that approved screening agency, or(b) for the purposes of the Commission exercising its function under section 36 (1) (a) of maintaining a database of completed relevant employment proceedings.(3) Notification under this section extends to proceedings completed within the period of 5 years immediately before the commencement of this section.(4) Notification under this section is to be in such form as the regulations provide or, subject to the regulations, as the Commission directs and consistent with the guidelines published under this Division.(5) It is the duty of an employer to retain records of information that the employer is required to notify under this section. That duty applies despite any requirement for disposal of the record (for example, any regulation applying to records of information of disciplinary proceedings with respect to public sector employees).
40 Duties of employers to notify Commission of rejected applicant in connection with background checking
(1) It is the duty of an employer to notify the Commission of the name and other identifying particulars of any person whose application for child-related employment with the employer has been rejected primarily because of an estimate of risk in background checking.(2) Notification under this section is to be in such form as the Commission directs.(3) The Commission is not to use, or give access to, any information notified to the Commission under this section, other than for the purpose of its monitoring or auditing compliance functions under this Division.(4) The guidelines under section 35 may provide for follow-up action to be taken by approved screening agencies, after carrying out background checking, for the purpose of ensuring that employers comply with this section.(5) Follow-up action means:(a) contacting the employer after carrying out background checking to inform the employer of the employer’s obligations under this section, and(b) requesting the employer to provide to the approved screening agency the information the employer is required to notify to the Commission under this section, and(c) providing the information to the Commission.(6) An employer who provides to an approved screening agency the information that it is required to notify to the Commission under this section is taken to have complied with this section in relation to that information.(7) An approved screening agency is not to use, or give access to, any information obtained from an employer as a result of follow-up action, other than for the purposes of providing the information to the Commission.(8) In this section, approved screening agency does not include the Commission.
(1) The Commission may, by notice in writing served on an employer, require the employer to comply with obligations of the employer under section 37, 39 or 40 within the period specified in the notice.(2) The Commission may serve a notice on an employer under this section if it is of the opinion that the employer has failed to comply with any provision of section 37, 39 or 40.(3) The notice must set out the reasons for the notice being given.(4) The period specified in a notice is to be not less than 28 days.(5) The Commission may revoke a notice at any time.(6) A person who fails, without reasonable excuse, to comply with a notice in force under this section is guilty of an offence.Maximum penalty: 50 penalty units, or imprisonment for 6 months, or both.
(7) In any proceedings for an offence against this section, the onus of proving that a person had a reasonable excuse lies with the defendant.(8) Nothing in this section prevents the Commission from contacting employers for the purpose of informing them of their obligations under this Act or requesting any information that employers are required to provide to the Commission under this Act.
43 Obtaining and correcting information on relevant employment proceedings under Government Information (Public Access) Act 2009
(1) A person against whom any relevant employment proceedings have been taken is, subject to this section, entitled to apply for access under the Government Information (Public Access) Act 2009 to any information about those proceedings. That Act applies to the determination of any such application for access.(2) Any provision of that Act relating to fees or charges payable by applicants does not apply to such an application for access.(3) Section 15 of the Privacy and Personal Information Protection Act 1998 applies to the amendment of an agency’s records relating to information about relevant employment proceedings.(4) The provisions of the Government Information (Public Access) Act 2009 and Part 6A of the Privacy and Personal Information Protection Act 1998 apply for the purposes of this section whether or not the agency is an agency to which those provisions apply.(5) The regulations under this Act may modify any provisions of those Acts in their application under this section.
43A Rectification or withdrawals of notifications
(1) An employer may amend or withdraw a notification to the Commission under section 39 or 40 if the employer determines that the notification was incorrect or wrongly made.(2) An amendment or withdrawal of a notification is to be in the form directed by the Commission.
44 Effect of Division on other rights and procedures
(1) Background checking or interstate child-related employment screening (as referred to in section 38A) may be conducted, and information disclosed or obtained, in accordance with this Division despite any other Act or law to the contrary.(2) Nothing in this Division affects any statutory right that an employee may have in relation to employment or termination of employment. However, any court or tribunal exercising jurisdiction with respect to any such right must have regard to the results of any background checking carried out under this Division in connection with the employment concerned and the welfare of children as the paramount consideration in that background checking.(3) Nothing in this Division affects the operation of the Criminal Records Act 1991 in relation to spent convictions within the meaning of that Act.(4) Nothing in this Division affects the operation of Part 2 of Chapter 9 of the Health Services Act 1997.
45 Application of background checking provisions to adult persons residing with authorised carers or children’s service providers
(1) In this section:applied provisions means the background checking provisions that are, because of subsection (2), taken to apply to and in respect of a relevant person who resides at the home of an authorised carer or children’s service provider.
approved provider of a children’s service means the approved provider of the service under the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011, as the case requires.
authorised carer and designated agency have the same meanings as in the Children and Young Persons (Care and Protection) Act 1998.
background checking provisions means the provisions of this Division (including the provisions of section 33 in their application to this Division) that relate to background checking for child-related employment.
children’s service means a family day care service within the meaning of the Children (Education and Care Services) National Law (NSW) or a home based education and care service within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011.
children’s service provider means:
(a) in the case of a family day care service approved under the Children (Education and Care Services) National Law (NSW)—the person who is the family day care educator under that Law for that service, or(b) in the case of a home based education and care service approved under the Children (Education and Care Services) Supplementary Provisions Act 2011—the person who is the approved provider under that Act for that service.relevant person means a person (other than an authorised carer or children’s service provider) who is of or above the age of 18 years.
(2) The background checking provisions apply to and in respect of a relevant person who resides at the home of an authorised carer or children’s service provider in the same way as those provisions apply to and in respect of background checking for child-related employment, with:(a) subject to paragraph (b), such adaptations as may be necessary, and(b) such exclusions and modifications as may be prescribed by the regulations.(3) For the purposes of this section, a relevant person is taken to reside at the home of an authorised carer or children’s service provider if:(a) that home is the place at which the authorised carer or licensed service provider provides the foster care or the children’s service concerned, and(b) the person has been living at that home on a regular basis for a period of not less than 3 months.(4) Without limiting subsection (2), the following provisions have effect in relation to the operation of the applied provisions:(a) a reference to an employer is taken to be a reference to:(i) in the case of a relevant person who resides at the home of an authorised carer—the designated agency that authorises the carer, or(ii) in the case of a relevant person who resides at the home of a children’s service provider—the approved provider of the children’s service concerned,(b) a reference to a person who is employed or who is an applicant for employment is taken to be a reference to the relevant person who resides at the home of the authorised carer or children’s service provider (as the case requires),(c) it is the duty under section 37 of the designated agency or the approved provider of the children’s service (as the relevant employer) to carry out all the relevant procedures of background checking of the relevant person to determine whether it is appropriate for that person to reside at the home of the authorised carer or children’s service provider concerned.