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Contents (2012 - 51)
Child Protection (Working with Children) Act 2012 No 51
Current version for 25 August 2017 to date (accessed 23 November 2017 at 20:18)
Part 3
Part 3 Working with children check clearances
Division 1 Classes of clearances
12   Classes of clearances
(1)  There are to be the following classes of working with children check clearances:
(a)  volunteer—authorising workers to engage in unpaid child-related work,
(b)  non-volunteer—authorising workers to engage in paid and unpaid child-related work.
(2)  Despite section 8, the holder of a volunteer clearance may engage in paid child-related work if the person has been engaged in that work for a period of 30 consecutive days or less.
Division 2 Applications for clearances
13   Applications for clearances
(1)  A person may apply to the Children’s Guardian for a working with children check clearance.
(2)  An application must:
(a)  be in the form approved by the Children’s Guardian, and
(b)  be accompanied by any other information required by the Children’s Guardian, and
(c)  specify the class of clearance applied for.
(3)  The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force:
(a)  the conduct of a criminal record check in respect of the applicant,
(b)  the disclosure of the applicant’s criminal history,
(c)  other inquiries about the applicant relevant to the application or clearance,
(d)  without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement.
(4)  The regulations may:
(a)  prescribe the fee payable for an application and the manner in which it is to be paid, and
(b)  require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children’s Guardian.
(5)  The Children’s Guardian must ensure that each applicant is given an application number and that the applicant is notified of that number.
(6)  An applicant may, with the consent of the Children’s Guardian, withdraw an application at any time.
(7)  The Children’s Guardian must not consent to the withdrawal of an application if the Children’s Guardian is of the opinion that it is likely that there is a risk to the safety of children if the applicant were to engage in child-related work.
(8)  The Children’s Guardian must, as soon as practicable after an application is withdrawn by an applicant, give written notice of that withdrawal to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant.
13A   Embargo after refusal of application or cancellation of clearance
(1)  A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance:
(a)  until 5 years after the date notice of the refusal or cancellation was given to the person, or
(b)  unless there has been a change of circumstances under which a further early application is permitted under this section.
(2)  A further early application is permitted if any of the following occurs after the date of the refusal or cancellation:
(a)  proceedings that were pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence,
(b)  a finding of guilt is quashed or set aside,
(c)  a finding the subject of an assessment requirement is quashed or set aside or otherwise expressly or impliedly ceases to have effect,
(d)  the Children’s Guardian permits a person to make such an application.
Division 3 Risk assessment of applicants and holders
14   Assessment requirements
A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person.
15   Assessment of applicants and holders
(1)  The Children’s Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children’s Guardian becomes aware that the applicant or holder is subject to an assessment requirement.
(2)  The Children’s Guardian may conduct a risk assessment of the holder of a clearance if the Children’s Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information.
(3)  Subsections (1) and (2) do not limit the circumstances in which the Children’s Guardian may conduct a risk assessment of an applicant or holder.
(4)  In making an assessment, the Children’s Guardian may consider the following:
(a)  the seriousness of any matters that caused the assessment in relation to the person,
(b)  the period of time since those matters occurred and the conduct of the person since they occurred,
(c)  the age of the person at the time the matters occurred,
(d)  the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,
(e)  the difference in age between the victim and the person and the relationship (if any) between the victim and the person,
(f)  whether the person knew, or could reasonably have known, that the victim was a child,
(g)  the person’s present age,
(h)  the seriousness of the person’s total criminal record and the conduct of the person since the matters occurred,
(i)  the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,
(j)  any information given in, or in relation to, the application,
(j1)  any relevant information in relation to the person that was obtained in accordance with section 36A,
(k)  any other matters that the Children’s Guardian considers necessary.
(4A)  The Children’s Guardian must not determine that an applicant does not pose a risk to the safety of children unless the Children’s Guardian is satisfied that:
(a)  a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any child-related work, and
(b)  it is in the public interest to make the determination.
(5)  The Children’s Guardian may, but is not required to, notify the holder of a clearance in writing if the Children’s Guardian decides to conduct a risk assessment of the holder.
16   Request for further information
(1)  The Children’s Guardian may, by notice in writing to an applicant for a working with children check clearance or the holder of a clearance, request the applicant or holder to provide further information about an offence or other matter related to the application or clearance.
(2)  The Children’s Guardian may terminate an application for a clearance or cancel a clearance if the applicant or holder fails, without reasonable excuse, to provide further information within 3 months of the request being made and the Children’s Guardian has not withdrawn the request.
(3)  The Children’s Guardian must:
(a)  as soon as practicable after terminating an application, give written notice of that termination to the applicant and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant, or
(b)  as soon as practicable after cancelling a clearance, give written notice of that cancellation to the holder of the clearance and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.
17   Interim bars
(1)  The Children’s Guardian may, at any time after receiving an application for a working with children check clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following:
(a)  engaging in child-related work,
(b)  residing on the same property as an authorised carer,
(c)  residing on a property where a home based education and care service or family day care service is provided.
(2)  The Children’s Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1) (b) or (c) pending the determination of the application or assessment.
(3)  The Children’s Guardian must as soon as practicable after determining that an applicant or holder is subject to an interim bar, give written notice of that determination to the applicant or holder and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant or holder.
(4)  An interim bar ceases to have effect:
(a)  on notification in writing by the Children’s Guardian to the applicant or holder that the interim bar is revoked, or
(b)  in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or
(c)  12 months after the interim bar takes effect,
whichever occurs first.
Division 4 Determination of applications for clearances
18   Determination of applications for clearances
(1)  The Children’s Guardian must not grant a working with children check clearance to the following persons (disqualified persons):
(a)  a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult,
(b)  a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence.
(2)  The Children’s Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
(3)  The Children’s Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3.
19   Notice of proposed refusal of application
(1)  If the Children’s Guardian proposes not to grant a working with children check clearance to a person, the Children’s Guardian must notify the person in writing of the proposed decision and that the person may make a submission to the Children’s Guardian within the period specified in the notice.
(2)  The Children’s Guardian must consider any submission made by an applicant within that period before finally deciding the application.
(3)  This section does not apply to an application for a clearance that is made by a disqualified person.
20   Notice of final decision granting or refusing clearance
(1)  The Children’s Guardian must notify the applicant in writing of the Children’s Guardian’s decision to grant or refuse to grant a working with children check clearance.
(2)  Notice of a decision to grant a clearance must include the working with children number.
(3)  Notice of a decision not to grant a clearance must set out the reasons for the refusal and the right to seek a review under Part 4.
(4)  The Children’s Guardian must as soon as practicable after refusing an application, give written notice of that refusal to the applicant and to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the applicant.
21   (Repealed)
Division 5 Duration and termination of clearances
22   Duration of clearances
(1)  A working with children check clearance ceases to have effect 5 years after the date it is granted, unless it is sooner cancelled or surrendered.
(2)  The holder of a clearance may apply for a new clearance at any time within the period beginning 3 months before the expiry of the clearance.
23   Cancellation of clearances
(1)  The Children’s Guardian must cancel the working with children check clearance of a person if the Children’s Guardian becomes aware that the person is a disqualified person or the Children’s Guardian is satisfied that the person poses a risk to the safety of children.
(2)  The Children’s Guardian must notify the holder of the clearance in writing of the Children’s Guardian’s decision to cancel the clearance.
(3)  Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4.
(4)  The Children’s Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.
Note.
 The holder of a clearance may also be made subject to an interim bar (see section 17).
24   Surrender of clearances
(1)  The holder of a working with children check clearance may, with the consent of the Children’s Guardian, surrender the clearance at any time.
(2)  The Children’s Guardian must not consent to the surrender of a clearance if the Children’s Guardian is of the opinion that it is likely that there is a risk to the safety of children if the holder were to engage in child-related work.
(3)  The Children’s Guardian must, as soon as practicable after consenting to the surrender of a clearance, cancel the clearance and give written notice of that cancellation to each person that the Children’s Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance.
Division 6 Working with children register
25   Working with children register
(1)  The Children’s Guardian must establish a working with children register.
(2)  The register must contain the following:
(a)  particulars of applications for working with children check clearances, including the applicant’s name and date of birth, the application number, the status of the application (including whether the applicant is subject to an interim bar) and any determination to refuse the application,
(b)  particulars of clearances, including the clearance holder’s name and date of birth, the working with children number, the class and expiry date of the clearance and whether the clearance holder is subject to an interim bar or has had a clearance cancelled.
(3)  The register is to be maintained in the manner and form approved by the Children’s Guardian.
(4)  The Children’s Guardian must ensure that information kept on the register is accurate and up-to-date.
(5)  The Children’s Guardian must make information on the register available to an employer or responsible agency carrying out a verification in respect of a person under section 9A or 11B to the extent that the Children’s Guardian considers the information to be relevant for the purposes of the verification or for informing the employer or responsible agency of any interim bar, refusal of an application or cancellation of a clearance.
(6)  The regulations may make provision for or with respect to the following:
(a)  any additional information that may be contained on the register,
(b)  the entry of information on the register by employers or other persons,
(c)  making information on the register publicly available or available to particular classes of persons.