An Act to prohibit the employment in child-related employment of persons found guilty of committing certain serious sex offences; and for related purposes.

Part 1 Preliminary

1   Name of Act

This Act is the Child Protection (Prohibited Employment) Act 1998.

2   Commencement

This Act commences on a day or days to be appointed by proclamation.

3   Definitions

In this Act:

child means a person who is under 18 years of age.

child-related employment:

(a)  means any employment of the following kind that primarily involves direct contact with children where that contact is not directly supervised:

(i)  employment involving the provision of child protection services,

(ii)  employment in pre-schools, kindergartens and child care centres (including residential child care centres),

(iii)  employment in schools or other educational institutions (not being universities),

(iv)  employment in detention centres (within the meaning of the Children (Detention Centres) Act 1987),

(v)  employment in refuges used by children,

(vi)  employment in wards of public or private hospitals in which children are patients,

(vii)  employment in clubs, associations or movements (including of a cultural, recreational or sporting nature) having a significant child membership or involvement,

(viii)  employment in any religious organisation,

(ix)  employment in entertainment venues where the clientele is primarily children,

(x)  employment as a babysitter or childminder that is arranged by a commercial agency,

(xi)  employment involving fostering or other child care,

(xii)  employment involving regular provision of taxi services for the transport of children with a disability,

(xiii)  employment involving the private tuition of children,

(xiv)  employment involving the direct provision of child health services,

(xv)  employment involving the provision of counselling or other support services for children,

(xvi)  employment on school buses,

(xvii)  employment at overnight camps for children, and

(b)  includes any other employment of a kind prescribed by the regulations, but does not include any employment of a kind excluded by the regulations.

conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

employer includes:

(a)  a person who, in the course of business, arranges for the placement of a person in employment with others, or

(b)  a person who engages a person under a contract to perform work.

employment means (subject to the regulations):

(a)  performance of work under a contract of employment, or

(b)  performance of work as a self-employed person or as a subcontractor, or

(c)  performance of work as a volunteer for an organisation, or

(d)  undertaking practical training as part of an educational or vocational course, or

(e)  performance of work as a minister of religion or other member of a religious organisation.

prohibited person—see section 5.

4   Child-related employment to which Act does not apply

(1)  This Act 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)  In addition, section 7 does not apply to 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.

(3)  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)).

(4)  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.

5   Prohibited persons

(1)  For the purposes of this Act, a prohibited person means a person convicted of a serious sex offence, whether before or after the commencement of this subsection, or a person who is a registrable person within the meaning of the Child Protection (Offenders Registration) Act 2000.

(2)  For the purposes of this Act, a person is not a prohibited person in respect of an offence if an order in force under section 8A or 9 declares that this Act is not to apply to the person in respect of the offence.

(3)  In this section:

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

(b1)  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

(c)  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

(d)  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

(d1)  an offence an element of which is an intention to commit an offence referred to in paragraph (a), (b) or (d), or

(e)  an offence of attempting, or of conspiracy or incitement, to commit an offence referred to in the preceding paragraphs, or

(f)  any other offence, whether under the law of New South Wales or elsewhere, prescribed by the regulations.

(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 Act 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 Act 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 Act, section 579 of the Crimes Act 1900 does not apply to or in respect of a serious sex offence.

Part 2 Offences

6   Offences relating to prohibited persons

(1) Offence of applying for, undertaking or remaining in child-related employment
A prohibited person must not:

(a)  apply for 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) Defence
It is a defence to a prosecution for an offence against this section if the defendant establishes that he or she did not know, at the time of the commission of the offence, that the employment concerned was child-related employment.

(3) Transitional provisions relating to persons other than self-employed persons
A person who is in child-related employment at the commencement of this section (other than a self-employed person) and who is a prohibited person at that commencement does not commit an offence under this section by remaining in that employment during the period of 3 months after that commencement if:

(a)  the person discloses to his or her employer, within 1 month of that commencement, that he or she is a prohibited person, and

(b)  the person complies with any requirement of his or her employer concerning unsupervised contact with children during that 3-month period.

(4) Transitional provisions relating to self-employed persons
A self-employed person who is in child-related employment at the commencement of this section and who is a prohibited person at that commencement does not commit an offence under this section by remaining in that employment during the period of 3 months after that commencement if the person takes all reasonable steps available in the circumstances to prevent or restrict himself or herself from having unsupervised contact with children in the course of that employment during that 3-month period.

7   Employer to ascertain whether employee is prohibited person

(1) Offence of employing person in child-related employment without requiring disclosure
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) Transitional provision—offence not to require disclosures of existing employees in child-related employment
An employer who, at the commencement of this subsection, employs a person in child-related employment must, within 6 months of that commencement, require the employee to disclose whether or not the employee is a prohibited person unless the person ceases, during that 6-month period, to be engaged in that employment.

Maximum penalty: 20 penalty units, in the case of a corporation, and 10 penalty units in any other case.

(3) Transitional provision—exempting employers who have carried out official criminal record checks on employees
An employer does not commit an offence under subsection (2) if the employer carried out an official criminal record check on the employee within the period of 2 years immediately preceding the commencement of that subsection and did not discover any information that would lead the employer to believe that the employee was a prohibited person.

(4) Offence of failing to disclose
A person must disclose to the person’s employer, within 1 month of receiving notice of a requirement under subsection (2) to do so, whether or not he or she is a prohibited person.

Maximum penalty: 10 penalty units.

(5) Exemption from making disclosure where person ceases to engage in child-related employment
A person does not commit an offence under subsection (4) of failing to make a disclosure to the person’s employer if the person ceases to engage in (by resignation or otherwise) the child-related employment concerned within the 1 month period referred to in that subsection.

(6) Offence of making false disclosure
A person must not, in purported compliance with a requirement under this section, make any statement that the person knows is false.

Maximum penalty (subsection (6)): 100 penalty units, or imprisonment for 12 months, or both.

8   Employer not to employ prohibited person in child-related employment

(1) Offence of employing 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.

(2) Transitional provision relating to employment during the 3-month period after commencement of this subsection
An employer does not commit an offence under this section by continuing to employ a prohibited person in child-related employment during the period of 3 months after the commencement of this section if the employer takes all reasonable steps available in the circumstances to prevent or restrict the person from having unsupervised contact with children during that 3-month period.

Part 3 Exemptions by declaration

8A   Commission may make declarations concerning prohibited persons

(1)  On the application of a prohibited person, the Commission for Children and Young People may make an order declaring that this Act is not to apply to the person in respect of a specified offence.

(2)  An application under this section must be made in a form approved by the Commission for Children and Young People.

(3)  The Commission for Children and Young People is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

(4)  In deciding whether or not to make an order under this section in relation to a person, the Commission for Children and Young People is to take into account the matters referred to in section 9 (5) (a)–(e) and such other matters as it considers relevant.

(5)  Orders under this section may be made subject to conditions.

(6)  The Commission for Children and Young People is not to make an order under this section that is subject to conditions without the consent in writing of the applicant to the conditions.

(7)  If the Commission for Children and Young People proposes to make an order under this section 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 9 to the Industrial Relations Commission or the Administrative Decisions Tribunal for an order declaring that this Act is not to apply to the person in respect of a specified offence.

(8)  If the Commission for Children and Young People makes an order under this section, 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.

(9)  If the Commission for Children and Young People 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 9 to the Industrial Relations Commission or the Administrative Decisions Tribunal for an order declaring that this Act is not to apply to the person in respect of a specified offence.

(10)  On an application under this section, the Commission for Children and Young People may, by order, stay the operation of a prohibition under this Act pending the determination of the matter.

(11)  The Commission for Children and Young People must notify the Commissioner of Police of the terms of any order made under this section.

9   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 Act 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 Industrial Relations Commission may not make an order under this section 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.

(4)  A relevant tribunal is not to make an order under this section unless it considers that the person the subject of the proposed order does not pose a risk to the safety of children.

(5)  In deciding whether or not to make an order under this section in relation to a person, 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,

(a1)  the period of time since those offences were committed,

(b)  the age of the person at the time those offences were committed,

(c)  the age of each victim of the offences at the time they were committed,

(d)  the difference in age between the prohibited person and each such victim,

(d1)  the prohibited person’s present age,

(e)  the seriousness of the prohibited person’s total criminal record,

(f)  such other matters as the tribunal considers relevant.

(6)  On an application under this section, the relevant tribunal may, by order, stay the operation of a prohibition under this Act pending the determination of the matter.

(7)  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.

(8)  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 8A 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.

(9)  Orders under this section may be made subject to conditions.

(10)  A relevant tribunal that makes an order under this section must notify the Commissioner of Police of the terms of the order.

(11)  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.

9A   Multiple applications not permitted

A person may not make an application under section 8A or 9 if the person has another application pending under either of those sections.

Part 4 Miscellaneous

10   Prohibited person may be transferred to other employment

This Act does not prevent an employer who removes a prohibited person from child-related employment in accordance with this Act from transferring the person to employment of a different kind.

11   Act binds Crown

This Act binds the Crown in right of New South Wales and, in so far as the legislative power of Parliament permits, the Crown in all its other capacities.

12   Relationship with other Acts and laws

(1)  This Act prevails to the extent of any inconsistency between it and any other Act or law.

(2)  The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or employee contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment in accordance with this Act.

13   Proceedings for offences

Proceedings for an offence against this Act or the regulations are to be taken before a Local Court.

14   Offences by corporations

(1)  If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each person who is the director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.

(2)  A person may be proceeded against and convicted under a provision pursuant to this section whether or not the corporation has been proceeded against or been convicted under that provision.

(3)  Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation against this Act or the regulations.

15   Regulations

(1)  The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.

(2)  In particular, regulations may be made for or with respect to:

(a)  the manner and form of disclosures and requests for disclosures to be made under this Act, including the manner in which offences may be described in such disclosures or requests, or

(b)  the circumstances in which a person is taken to have requested or made a disclosure under this Act.

(3)  The regulations may create offences punishable by a penalty not exceeding 100 penalty units.

15A   Savings, transitional and other provisions

Schedule 1 has effect.

16   Review of Act

(1)  The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.

(2)  The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.

(3)  A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.

Schedule 1 Savings, transitional and other provisions

(Section 15A)

Part 1 Preliminary

1   Regulations

(1)  The regulations may contain provisions of a savings or transitional nature consequent on the enactment of the following Acts:

this Act

Child Protection Legislation Amendment Act 2002

(2)  Any such provision may, if the regulations so provide, take effect from the date of assent to the Act concerned or a later date.

(3)  To the extent to which any such provision takes effect from a date that is earlier than the date of its publication in the Gazette, the provision does not operate so as:

(a)  to affect, in a manner prejudicial to any person (other than the State or an authority of the State), the rights of that person existing before the date of its publication, or

(b)  to impose liabilities on any person (other than the State or an authority of the State) in respect of anything done or omitted to be done before the date of its publication.

Part 2 Provisions consequent on enactment of Child Protection Legislation Amendment Act 2002

2   Prohibited persons

(1)  In this clause, new prohibited person means a person who becomes a prohibited person on the commencement of an amendment made by the Child Protection Legislation Amendment Act 2002 to this Act or the Child Protection (Offenders Registration) Act 2000 because of that amendment.

(2)  Section 6 (3) and (4) apply to and in respect of a person who is a new prohibited person as if:

(a)  the references in those subsections to “the commencement of this section” and “that commencement” were references to the day on which the person became a new prohibited person, and

(b)  the words “and who is a prohibited person at that commencement” were omitted.

(3)  Section 7 (2) applies to and in respect of an employee who is a new prohibited person as if the references in that subsection to “the commencement of this subsection” and “that commencement” were references to the day on which the employee became a new prohibited person.

(4)  Section 7 (3) applies to and in respect of an employee who is a new prohibited person as if the reference in that subsection to “the commencement of that subsection” were a reference to the day on which the employee became a new prohibited person.

(5)  Section 8 (2) applies to and in respect of a prohibited person who is a new prohibited person as if the reference in that subsection to “the commencement of this section” were a reference to the day on which the person became a new prohibited person.

Historical notes

The following abbreviations are used in the Historical notes:

Table of amending instruments

Child Protection (Prohibited Employment) Act 1998 No 147. Assented to 8.12.1998. Date of commencement, 3.7.2000, sec 2 and GG No 73 of 23.6.2000, p 5109. This Act has been amended as follows:

2000	No 42	Child Protection (Offenders Registration) Act 2000. Assented to 27.6.2000. Date of commencement of Sch 1.1, 15.10.2001, sec 2 and GG No 156 of 12.10.2001, p 8499.
	No 93	Statute Law (Miscellaneous Provisions) Act (No 2) 2000. Assented to 8.12.2000. Date of commencement of Sch 2.4, assent, sec 2 (2).
2001	No 56	Statute Law (Miscellaneous Provisions) Act 2001. Assented to 17.7.2001. Date of commencement of Sch 2.3, assent, sec 2 (2).
	No 99	Crimes Amendment (Sexual Servitude) Act 2001. Assented to 11.12.2001. Date of commencement, 22.3.2002, sec 2 and GG No 59 of 15.3.2002, p 1605.
	No 121	Justices Legislation Repeal and Amendment Act 2001. Assented to 19.12.2001. Date of commencement of Sch 2, 7.7.2003, sec 2 and GG No 104 of 27.6.2003, p 5978.
2002	No 98	Child Protection Legislation Amendment Act 2002. Assented to 29.11.2002. Date of commencement of Sch 2, 10.2.2003, sec 2 and GG No 39 of 7.2.2003, p 758.
2003	No 27	Crimes Legislation Amendment Act 2003. Assented to 8.7.2003. Date of commencement of Sch 2, assent, sec 2 (1).
	No 82	Statute Law (Miscellaneous Provisions) Act (No 2) 2003. Assented to 27.11.2003. Date of commencement of Sch 1.5, assent, sec 2 (2).
2004	No 95	Crimes Amendment (Child Pornography) Act 2004. Assented to 15.12.2004. Date of commencement of Sch 2.2, 1.1.2005, sec 2 (1) and GG No 200 of 17.12.2004, p 9303.

Table of amendments

Sec 3	Am 2000 No 93, Sch 2.4.
Sec 5	Am 2000 No 42, Sch 1.1 [1]; 2001 No 99, Sch 3; 2002 No 98, Sch 2 [1] [2]; 2003 No 82, Sch 1.5; 2004 No 95, Sch 2.2.
Sec 6	Am 2003 No 27, Sch 2.
Sec 8A	Ins 2002 No 98, Sch 2 [3].
Sec 9	Am 2000 No 42, Sch 1.1 [2] [3]; 2001 No 56, Sch 2.3; 2002 No 98, Sch 2 [4] [5].
Sec 9A	Ins 2002 No 98, Sch 2 [6].
Sec 13	Am 2001 No 121, Sch 2.34.
Sec 15A	Ins 2002 No 98, Sch 2 [7].
Sch 1	Ins 2002 No 98, Sch 2 [8].