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Contents (2012 - 51)
Child Protection (Working with Children) Act 2012 No 51
Current version for 1 June 2018 to date (accessed 25 June 2018 at 21:31)
Part 2 Division 3
Division 3 Additional persons who must obtain clearances
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.
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.