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Contents (2012 - 51)
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Child Protection (Working with Children) Act 2012 No 51
Current version for 27 May 2019 to date (accessed 23 July 2019 at 19:28)
Part 2
Part 2 Restrictions on child-related work
Division 1 Child-related work
6   Child-related work
(1)  A worker is engaged in child-related work for the purposes of this Act if:
(a)  the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work, or
(b)  the worker is engaged in work in a child-related role referred to in subsection (3).
(2)  The work referred to is work for, or in connection with, any of the following that is declared by the regulations to be child-related work:
(a)  child developmentmentoring and counselling services for children,
(b)  child protectionchild protection services,
(c)  children’s health servicesthe provision of health care in wards of hospitals where children are treated and the direct provision of other child health services,
(d)  clubs or other bodies providing services for childrenclubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children,
(e)  disability servicesrespite care or other support services for children with a disability,
(f)  early education and child careeducation and care services, child care centres, nanny services and other child care,
(g)  educationschools or other educational institutions (other than universities) and private coaching or tuition of children,
(h)  entertainment for childrensporting, cultural or other entertainment venues used primarily by children and entertainment services for children,
(i)  justice servicesdetention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999),
(j)  religious servicesany religious organisation,
(k)  residential servicesrefuges used by children, long term home stays for children, boarding houses or other residential services for children and overnight camps for children,
(l)  transport services for childrentransport services especially for children, including school bus services and taxi services for children with a disability and supervision of school road crossings,
(m)  otherany other service for children prescribed by the regulations.
(3)  The following roles are referred to:
(a)  an approved provider or manager of an education and care service,
(b)  a nominated supervisor (within the meaning of the Children (Education and Care Services) National Law (NSW) of an education and care service,
(c)  an authorised carer,
(d)  an assessment officer (within the meaning of section 27A of the Children and Young Persons (Care and Protection) Act 1998),
(e)  the principal officer of a designated agency,
(f)  the principal officer of an accredited adoption service provider,
(g)  any other role with respect to children prescribed by the regulations.
(3A)  The regulations may provide for circumstances in which direct contact by a worker with a child or children is taken to be a usual part of and more than incidental to a worker’s work.
(4)  In this section:
direct contact with children means:
(a)  physical contact, or
(b)  face to face contact.
7   Additional child-related work
(1)  A worker is taken to be engaged in child-related work if the worker is engaged, or proposes to engage, in work (other than as a volunteer) that is the subject of a requirement under this section.
(2)  The employer or proposed employer of a worker engaged in work for which a working with children check clearance is not required that involves access to confidential records or information about children may, by notice in writing to the worker, require the worker to obtain a clearance for the purposes of engaging in the work concerned.
(3)  The employer, or proposed employer, may at any time, by notice in writing given to the worker, revoke a requirement made under this section.
(4)  An employer may make or revoke a requirement under this section only with the approval of the Children’s Guardian.
Division 2 Mandatory requirements for child-related work
8   Restrictions on engaging in child-related work
(1)  A worker must not engage in child-related work unless:
(a)  the worker holds a working with children check clearance of a class applicable to the work, or
(b)  there is a current application by the worker to the Children’s Guardian for a clearance of a class applicable to that work.
Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.
(2)  A worker must not engage in child-related work at any time that the worker is subject to an interim bar.
Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.
(3)  It is a defence to proceedings for an offence against this section if the accused person establishes that:
(a)  the accused person did not know, at the time the offence was committed, that the work concerned was child-related work, or
(b)  the accused person was exempted by the regulations from the requirement to hold a clearance, or
(c)  the offence was consequential on the relevant accused person being subject to an interim bar, having an application for a clearance refused or terminated or having a clearance cancelled and, at the time that the offence was committed, the accused person did not know about the interim bar, refusal, termination or cancellation.
Note.
 Division 3 also requires adult persons residing with authorised carers or approved providers of education and care services and potential adoptive parents to hold clearances or to have a current application for a clearance.
9   Employers must require clearance or current application
(1)  An employer must not commence employing, or continue to employ, a worker in child-related work if the employer knows or has reasonable cause to believe that:
(a)  the worker is not the holder of a working with children check clearance that authorises that work and that there is no current application by the worker to the Children’s Guardian for a clearance of a class applicable to that work, or
(b)  the worker is subject to an interim bar.
Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(2)  It is a defence to proceedings for an offence against this section if the accused person establishes that, at the time the offence was committed:
(a)  the accused person had been advised by the Children’s Guardian that the worker was the holder of a clearance or that there was a current application by the worker for a clearance, or
(b)  the worker was exempted by the regulations from the requirement to hold a clearance.
(3)  This section extends to an employer who, in the course of business, arranges for the placement of a worker in employment with others (a placement agency) if:
(a)  the employment is child-related work, and
(b)  the placement agency is a person or a person of a class declared by the regulations to be subject to this section.
(4)  For the purposes of applying this section to a placement agency referred to in subsection (3), the placement agency is taken to employ the worker during any period in which the placement agency arranges for the employment of the worker in child-related work.
9A   Employer must verify and record clearance details
(1)  An employer must not commence employing, or continue to employ, a worker in child-related work unless the employer has obtained and verified the worker’s relevant details and made a record of those relevant details.
(2)  The worker’s relevant details are the following:
(a)  the worker’s full name and date of birth,
(b)  the working with children number of the worker’s clearance or the application number of the worker’s current application,
(c)  the expiry date for each clearance of the worker, being the date on which the clearance ceases to have effect.
(3)  The worker’s relevant details are taken to have been verified only if the relevant details accord with the information relating to the worker recorded in the working with children register as at the date the record is made by the employer.
(4)  An employer who employs a worker in child-related work must ensure that the record kept under subsection (1) in relation to a worker is updated no later than 5 working days after the expiry date for each clearance of the worker.
(5)  An employer must retain a record made under this section:
(a)  during the period in which the worker carries out child-related work for the employer, and
(b)  for a period of at least 7 years after the worker ceases to carry out child-related work for the employer.
(6)  An employer who, without reasonable excuse, fails to comply with subsection (1), (4) or (5) is guilty of an offence.
Maximum penalty: 100 penalty units (in the case of a corporation) or 50 penalty units (in any other case).
(7)  This section extends to an employer who, in the course of business, arranges for the placement of a worker in employment with others (a placement agency) if:
(a)  the employment is child-related work, and
(b)  the placement agency is a person or a person of a class declared by the regulations to be subject to this section.
(8)  For the purposes of applying this section to a placement agency referred to in subsection (7), the placement agency is taken to employ the worker during any period in which the placement agency arranges for the employment of the worker in child-related work.
(9)  This section does not apply:
(a)  in respect of an employer if the employer is an individual who is the parent of, or has the care of, a child or young person and the child-related work relates to that child or young person, or
(b)  in respect of a worker who is exempted by the regulations from the requirement to hold a clearance, or
(c)  in respect of an employer who is exempted by the regulations from this section.
9AA   Licensing authorities must verify and record clearance details
(1)  A licensing authority must not issue a relevant licence to a person unless the licensing authority has obtained and verified the person’s relevant details and made a record of those relevant details.
(2)  The person’s relevant details are the following:
(a)  the person’s full name and date of birth,
(b)  the working with children number of the person’s clearance or the application number of the person’s current application,
(c)  the expiry date for each clearance of the person, being the date on which the clearance ceases to have effect.
(3)  The person’s relevant details are taken to have been verified only if the relevant details accord with the information relating to the person recorded in the working with children register as at the date the record is made by the licensing authority.
(4)  A licensing authority must ensure that the record kept under subsection (1) in relation to a person who is the holder of a relevant licence issued by the licensing authority is updated no later than 5 working days after the expiry date for each clearance of the person.
(5)  A licensing authority must retain a record made under this section:
(a)  during the period in which the person holds a relevant licence issued by the licensing authority, and
(b)  for a period of at least 7 years after the person ceases to hold a relevant licence issued by the licensing authority.
(6)  A licensing authority that, without reasonable excuse, fails to comply with subsection (1), (4) or (5) is guilty of an offence.
Maximum penalty: 100 penalty units (in the case of a corporation) or 50 penalty units (in any other case).
(7)  This section does not apply:
(a)  in respect of a licensing authority that is exempted by the regulations from this section, or
(b)  in respect of the issue of a licence to a person who is exempted by the regulations from the requirement to hold a clearance.
(8)  In this section:
issue includes grant or renew.
licence means a licence, registration, accreditation, certificate, permit or any other authority.
licensing authority means a person or body responsible for issuing a licence.
relevant licence means a licence, or a licence of a class, declared by the regulations to be a relevant licence.
9B   Governing body to ensure persons appointed to key positions hold clearance
(1)    (Repealed)
(2)  The governing body of an organisation must ensure that a person is not appointed on a permanent basis to a key position in the organisation that involves child-related work unless the person is the holder of a working with children check clearance of a class applicable to that work.
Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(3)  It is a defence to proceedings for an offence against subsection (2) if the governing body establishes that, at the time the offence was committed:
(a)  the governing body had been advised by the Children’s Guardian that the person was the holder of a clearance, or
(b)  the working with children register showed that the person was the holder of a clearance, or
(c)  the governing body was exempted by the regulations from the requirements of this section or the person was exempted from the requirement to hold a clearance.
(4)  The governing body of an organisation must ensure that whenever a person is appointed on a permanent basis to a key position in the organisation that involves child-related work:
(a)  a record is kept of how the governing body determined that the person held a working with children check clearance of a class applicable to that work, and
(b)  that record is retained by the organisation for at least 7 years.
Maximum penalty: 50 penalty units.
(5)  Nothing in this section prevents a person being appointed to a key position on a conditional basis, if there is a current application for a clearance of an appropriate class and appointment is conditional on the person obtaining the appropriate clearance as soon as is reasonably practicable and having that clearance considered by the governing body.
Division 3 Clearances for other persons
10   Adult persons residing with authorised carers or persons providing certain services
(1)  An adult person (other than an exempt person) who resides on the same property as an authorised carer or on a property where a home based education and care service or family day care service is provided must hold a working with children check clearance (of any class) or have made a current application to the Children’s Guardian for a clearance.
Maximum penalty: 100 penalty units, or imprisonment for 2 years, or both.
(2)  The designated agency (that authorised the authorised carer) or the approved provider (of the home based education and care service or family day care service) referred to in subsection (1), must ensure that the adult person complies with that subsection.
Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(3)  For the purposes of this section, a person no longer has a clearance or a current application for a clearance if an interim bar is in effect against the person.
(4)  It is a defence to proceedings for an offence against subsection (1) if the accused person establishes that the accused person did not know, at the time the offence was committed, that the care or service referred to in that subsection was provided on that property.
(5)  It is a defence to proceedings for an offence under subsection (1) or (2) if the accused person establishes that:
(a)  the adult person had been residing on the property for less than 3 weeks, or
(b)  the offence was consequential on the adult person being subject to an interim bar, withdrawing an application, having an application for a clearance terminated or refused or having a clearance cancelled and the accused person:
(i)  did not know about the interim bar, withdrawal, termination, refusal or cancellation, or
(ii)  in the case of an adult person who resides on the same property as an authorised carer, had not known about the interim bar, withdrawal, termination, refusal or cancellation for more than 48 hours, or
(c)  the adult person is the holder of a continuing residence approval granted by the Children’s Guardian.
(6)  For the purposes of the application of this Act (other than sections 9 and 9A) to an adult person required by this section to hold a clearance, the designated agency or approved provider referred to in subsection (2) is to be treated as the employer of the adult person.
(7)  In this section:
exempt person means a person who is required under another provision of this Act to, or is exempt from the requirement to, hold a working with children check clearance.
11   Prospective adoptive parents and adults residing with them
(1)  This section applies to:
(a)  a prospective adoptive parent, and
(b)  a person (an adult resident) who resides on the same property as another person while that other person is a prospective adoptive parent.
(2)  A person to whom this section applies must apply to the Children’s Guardian for a working with children check clearance of the volunteer class unless:
(a)  the person holds a clearance of any class that is in force, or
(b)  a current application for a clearance has been made by the person, or
(c)  the person is exempted by the regulations from the requirement to hold a clearance.
(3)  For the purposes of the application of this Act (other than section 9) to a prospective adoptive parent or adult resident, the relevant decision-maker in relation to the prospective adoptive parent is to be treated as the employer of the prospective adoptive parent and adult resident.
(4)  In this section:
relevant decision-maker in relation to a prospective adoptive parent means:
(a)  if the prospective adoptive parent has made an application to adopt a child to the Secretary—the Secretary, or
(b)  if the prospective adoptive parent has made an application to adopt a child to an accredited adoption service provider—the principal officer of the service provider.
11A   Prospective guardians and adults residing with them
(1)  This section applies to:
(a)  a prospective guardian, and
(b)  a person (an adult resident) who resides on the same property as the prospective guardian during the period beginning when the application for a guardianship order relating to that prospective guardian is made under section 79A of the Children and Young Persons (Care and Protection) Act 1998 and ending when it is finally dealt with.
(2)  A person to whom this section applies must apply to the Children’s Guardian for a working with children check clearance of the volunteer class unless:
(a)  the person holds a clearance of any class that is in force, or
(b)  a current application for a clearance has been made by the person, or
(c)  the person is exempted by the regulations from the requirement to hold a clearance.
(3)  For the purposes of the application of this Act (other than sections 9 and 9A) to a prospective guardian or adult resident, the relevant decision-maker in relation to the prospective guardian is to be treated as the employer of the prospective guardian and adult resident.
(4)  In this section:
relevant decision-maker in relation to a prospective guardian means:
(a)  if the application for the guardianship order was made by the Secretary—the Secretary, or
(b)  in the case of such an application made by any other person or body—the principal officer of the designated agency responsible for assessing the prospective guardian to be a suitable person to be allocated all aspects of parental responsibility for a child or young person.
11B   Responsible agency must verify person has clearance or current application
(1)  For the purposes of this section, the responsible agency is:
(a)  for any adult person who resides on the same property as an authorised carer who is authorised by a designated agency—the designated agency, or
(b)  for any adult person who resides on the same property as a carer applicant whose application was made to a designated agency—the designated agency, or
(c)  for any adult person who resides on a property where a home based education and care service or a family day care service is provided—the approved provider of the service, or
(d)  for any adult person in respect of whom a relevant decision-maker (within the meaning of section 11 or 11A) is to be treated as an employer under either of those sections—the relevant decision-maker.
(2)  A responsible agency must verify, in accordance with this section, that each adult person for whom the agency is the responsible agency:
(a)  is the holder of a working with children check clearance, or
(b)  has made a current application to the Children’s Guardian for a clearance.
(3)  For the purposes of any such verification, the responsible agency must ensure that:
(a)  the relevant details of the person are obtained by the agency, being:
(i)  the person’s full name and date of birth, and
(ii)  the working with children number of the person’s clearance or the application number of the person’s current application, and
(b)  the agency has access to the working with children register, and
Note.
 Responsible agencies can gain access to the register by registering online with the Children’s Guardian.
(c)  such of the relevant details of the person as may be required by the Children’s Guardian are entered onto the working with children register, and
(d)  a record is kept of any of the following obtained from the working with children register and that record is retained by the agency for 7 years:
(i)  the working with children number of the person,
(ii)  the expiry date of any clearance of the person.
(4)  Verification in respect of an adult person under this section must occur as soon as practicable after the responsible agency becomes aware that it is the responsible agency for the person and then again within 5 working days after each clearance of the person ceases to have effect under section 22 (1).
(5)  This section does not apply:
(a)  in respect of a person who is exempted by the regulations from the requirement to hold a clearance, or
(b)  in respect of a responsible agency that is exempted by the regulations from this section.
(6)  In relation to the residency of an adult person on the same property as an authorised carer, a requirement to verify that the person is the holder of a working with children check clearance is satisfied if the responsible agency verifies that the adult person is the holder of a continuing residence approval.
(7)  For the purposes of subsection (6):
(a)  a reference to the working with children number of the person includes a reference to the particulars of the continuing residence approval, and
(b)  a reference to the expiry date of a clearance, or the date on which it ceases to have effect, includes a reference to the date on which a continuing residence approval ceases to have effect.
11C   Candidates for State Parliamentary elections
A person who is or intends to be a candidate at an election (within the meaning of the Electoral Act 2017) may apply to the Children’s Guardian for a working with children check clearance of the non-volunteer class, unless:
(a)  the person holds a clearance of any class that is in force, or
(b)  a current application for a clearance has been made by the person.
11D   Continuing residence approval
(1)  The Children’s Guardian may, by notice in writing given to a person, grant an approval (a continuing residence approval) to the person to reside on the same property as an authorised carer, even though the person does not hold a working with children check clearance, if:
(a)  the person is or was, immediately before turning 18 years of age, in the out-of-home care of the authorised carer, and
(b)  the Children’s Guardian is satisfied that any risks to the safety of children associated with the person residing at the property have been sufficiently mitigated.
Note.
 A continuing residence approval is sufficient authority for a person who is or was in the out-of-home care of an authorised carer before turning 18 years of age to continue to reside at the residence of the authorised carer, even though the person does not hold a working with children check clearance.
(2)  A continuing residence approval has effect for 5 years after the date it is granted or, if a shorter period is specified by the Children’s Guardian, that period.
(3)  A continuing residence approval may be renewed by the Children’s Guardian.
(4)  The Children’s Guardian may, by notice in writing served on a person, cancel a continuing residence approval granted to the person if:
(a)  the Children’s Guardian is no longer satisfied that any risks to the safety of children associated with the person residing at the property have been sufficiently mitigated, or
(b)  a change of circumstances occurs that, in the opinion of the Children’s Guardian, makes it no longer appropriate to continue the approval.
(5)  A continuing residence approval ceases to have effect if it is cancelled by the Children’s Guardian.
(6)  The Children’s Guardian must advise the designated agency that authorised the authorised carer of a decision to grant, refuse, renew or cancel a continuing residence approval as soon as practicable after the decision is made.
(7)  In this section:
out-of-home care has the same meaning as it has in the Children and Young Persons (Care and Protection) Act 1998.