Child Protection (Working with Children) Act 2012 No 51
Part 1 Preliminary
1 Name of Act
This Act is the Child Protection (Working with Children) Act 2012.
This Act commences on a day or days to be appointed by proclamation.
3 Object of Act
The object of this Act is to protect children:(a) by not permitting certain persons to engage in child-related work, and(b) by requiring persons engaged in child-related work to have working with children check clearances.Note.For other legislation relating to the safety, welfare and well-being of children, and the related functions of the Children’s Guardian, see the Children and Young Persons (Care and Protection) Act 1998. In particular, see section 181 and Chapter 13 of that Act.
4 Safety, welfare and well-being of children to be paramount consideration
The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act.
(1) In this Act:accredited adoption service provider has the same meaning as in the Adoption Act 2000.adult means a person who is 18 years of age or older.application number means the unique number given to an applicant for a working with children check clearance under this Act.approved provider means an approved provider under the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011.assessment requirement—see section 14.means a person appointed as an authorised officer by the Children’s Guardian under section 50B of this Act.carer applicant has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.—see sections 6 and 7.children means persons under the age of 18 years.Children’s Guardian means the Children’s Guardian appointed under section 178 of the Children and Young Persons (Care and Protection) Act 1998.continuing residence approval means an approval granted by the Children’s Guardian under section 11D that is in force.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.criminal history—see section 5C.current application for a working with children check clearance means an application that has not been finally determined or withdrawn or terminated.Department means the Department of Family and Community Services.designated agency has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.disqualified person—see section 18 (1).education and care service means an education and care service within the meaning of the Children (Education and Care Services) National Law (NSW) or a State regulated education and care service within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011.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, or(c) a person who engages a worker to perform work as a volunteer for the person under an agreement (whether written or unwritten).enabling order—see section 28.exercise a function includes perform a duty.family day care service has the same meaning as it has in the Children (Education and Care Services) National Law (NSW).function includes a power, authority or duty.government agency includes any public or local authority.home based education and care service has the same meaning as it has in the Children (Education and Care Services) Supplementary Provisions Act 2011.interim bar means an interim bar imposed under section 17.key position, in an organisation, means each of the following:(a) the chief executive of the organisation,(b) the principal officer—if the organisation is a designated agency, a registered agency or an accredited adoption service provider,(c) any other position in the organisation that is of a kind prescribed by the regulations.notifiable person in relation to an applicant for a clearance or the holder of a clearance means each of the following:(a) any employer or proposed employer of the applicant or holder in respect of child-related work,(b) if the applicant or holder resides on the same property as an authorised carer or carer applicant—the designated agency that authorised the carer or to whom the carer applicant made the application,(c) if the applicant or holder resides on a property where a home based education and care service or family day care service is provided—the approved provider of the service,(d) if the applicant or holder is a prospective adoptive parent or an adult resident within the meaning of section 11—the relevant decision-maker (within the meaning of that section) in relation to the prospective adoptive parent,(e) if the applicant or holder is a prospective guardian or an adult resident within the meaning of section 11A—the relevant decision-maker (within the meaning of that section) in relation to the prospective guardian,(f) any other person prescribed by the regulations.principal officer of:(a) an accredited adoption service provider has the same meaning as in the Adoption Act 2000, or(b) a designated agency or a registered agency has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.prospective adoptive parent means a person who has submitted an application under the Adoption Act 2000 to adopt a child and whose application has not been withdrawn or finally dealt with by the making of or refusal to make an adoption order.prospective guardian has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.registered agency has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998.reporting body—see section 35 (4).reside on a property has the meaning given by section 5A.Secretary means the Secretary of the Department.Tribunal means the Civil and Administrative Tribunal.worker means any person who is engaged in work in any of the following capacities:(a) as an employee,(b) as a self-employed person or as a contractor or subcontractor,(c) as a volunteer,(d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience),(e) as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer of a religion or other member of a religious organisation.working day means any day that is not a Saturday, Sunday or public holiday.working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work.working with children number means the number given for a working with children check clearance under this Act.working with children register means the register established under section 25.Note.The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act.(2) Notes included in this Act do not form part of this Act.
5A Meaning of “reside on a property”
(1) Subject to subsection (2), a person resides on a property if the person resides (which includes sleep on a regular or frequent basis) anywhere on the property (whether or not in a building, caravan, structure, vehicle or other thing).(2) The regulations may prescribe circumstances in which a person is, or is not, taken to reside on a property (including by prescribing circumstances in which 2 persons are, or are not, taken to be residing on the same property).
5B Meaning of “risk to the safety of children”
A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children.
5C Meaning of “criminal history”
(1) A person’s criminal history includes:(a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and(b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and(c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section).(2) In this section:conviction has the same meaning as it has in the Criminal Records Act 1991.