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Contents (2012 - 51)
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Child Protection (Working with Children) Act 2012 No 51
Current version for 25 August 2017 to date (accessed 22 September 2017 at 02:06)
Part 4
Part 4 Reviews and appeals
26   Persons not entitled to apply for review or enabling order
(1)  The following persons are not entitled to make an application under this Part:
(a)  a person who has been convicted of any of the following offences, if the offence was committed as an adult and the person is a person who satisfies subsection (2):
(i)  murder,
(ii)  an offence against section 61B, 61C, 61D, 61E, 61F, 61I, 61J, 61JA, 61K, 61L, 61M, 61N, 61O, 61P, 63, 65A, 66, 66F, 76, 78A, 78B, 80A, 80D, 80E or 81 of the Crimes Act 1900, if the person against whom the offence was committed was a child,
(iii)  the common law offence of rape, if the person against whom the offence was committed was a child,
(iv)  an offence against section 66A, 66B, 66C, 66D, 66EA or 66EB of the Crimes Act 1900,
(v)  an offence against section 67, 68, 71, 72, 72A, 73, 74 or 76A of the Crimes Act 1900,
(vi)  an offence against section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q of the Crimes Act 1900,
(vii)  an offence against section 91D, 91E or 91F of the Crimes Act 1900,
(viii)  an offence against section 91G, 91H, 578B or 578C (2A) of the Crimes Act 1900,
(ix)  an offence against section 272.8, 272.10 (if it relates to an underlying offence against section 272.8) or 272.11 of the Criminal Code of the Commonwealth,
(x)  an offence against section 272.9, 272.10 (if it relates to an underlying offence against section 272.9), 272.12, 272.13, 272.14 or 272.15 of the Criminal Code of the Commonwealth,
(xi)  an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth, if it relates to a Class 1 offence within the meaning of the Child Protection (Offenders Registration) Act 2000,
(xii)  an offence against section 273.5, 273.6, 273.7, 471.16, 471.17, 471.19, 471.20, 471.22, 471.24, 471.25, 474.19, 474.20, 474.22, 474.23, 474.24A, 474.25A, 474.25B, 474.26 or 474.27 of the Criminal Code of the Commonwealth,
(xiii)  an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material,
(xiv)  an offence an element of which is an intention to commit an offence listed in subparagraphs (i)–(xiii),
(xv)  an offence of attempting, or of conspiracy or incitement, to commit an offence listed in subparagraphs (i)–(xiii),
(b)  a person who has been convicted of an offence committed as an adult under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence referred to in paragraph (a) and the person is a person who satisfies subsection (2),
(c)  a person whose application for a working with children check clearance has been refused, or whose working with children check clearance has been cancelled, wholly or partly on the grounds that proceedings have been commenced against the person for an offence specified in Schedule 2 and the proceedings have not been finally determined.
(2)  A person convicted of an offence specified in subsection (1) satisfies this subsection if:
(a)  the person received a sentence of full time custody for the offence, or
(b)  any of the following orders (including any equivalent orders made by a court of a jurisdiction other than this State (including jurisdictions outside Australia)) was imposed on the person in respect of the offence and the order is in force:
(i)  a home detention order, intensive correction order or community service order under the Crimes (Sentencing Procedure) Act 1999, a good behaviour order under section 9 of that Act or an order under section 12 of that Act,
(ii)  a conditional release order or recognizance release order under section 20 of the Crimes Act 1914 of the Commonwealth, or
(c)  a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (or a corresponding prohibition order under section 19 of that Act) is in force against the person.
(3)  This section applies to convictions for offences whether occurring before, on or after the commencement of this Act.
27   Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions
(1)  A person who has been refused a working with children check clearance by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(2)  A person whose clearance is cancelled by the Children’s Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person.
(3)  A person who is subject to an interim bar imposed by the Children’s Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months.
(4)  An applicant must fully disclose to the Tribunal any matters relevant to the application.
(5), (6)    (Repealed)
(7)  Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section.
28   Orders relating to disqualified and ineligible persons
(1)  The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor.
(2)  The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor.
(3)  A disqualified person may make an application under this section only if:
(a)  the person has been refused a working with children check clearance, or
(b)  the person’s clearance has been cancelled under section 23,
because the person is a disqualified person.
(4)  The Children’s Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order.
(5)  An applicant must fully disclose to the Tribunal any matters relevant to the application.
(6)  If the Tribunal makes an enabling order, the Tribunal may order the Children’s Guardian to revoke an interim bar or to grant the person a clearance.
(7)  In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children.
(8)  An enabling order may not be made subject to conditions.
(9)    (Repealed)
29   Further review of persons who obtain enabling orders
(1)  The Children’s Guardian may apply to the Tribunal to revoke or vary an enabling order made by the Tribunal.
(2)  The Tribunal may:
(a)  revoke an enabling order, if it is satisfied, on the basis of fresh evidence provided by the Children’s Guardian, that the person the subject of the order poses a risk to the safety of children, or
(b)  confirm an enabling order, if it is satisfied that the person is not likely to pose such a risk.
(3)  The Tribunal may consider fresh evidence provided by the Children’s Guardian.
(4)    (Repealed)
30   Determination of applications and other matters
(1)  The Tribunal must consider the following in determining an application under this Part:
(a)  the seriousness of the offences with respect to which the person is a disqualified person or any matters that caused a refusal of a clearance or imposition of an interim bar,
(b)  the period of time since those offences or matters occurred and the conduct of the person since they occurred,
(c)  the age of the person at the time the offences or matters occurred,
(d)  the age of each victim of any relevant offence or conduct at the time they 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 offences occurred,
(i)  the likelihood of any repetition by the person of the offences or conduct and the impact on children of any such repetition,
(j)  any information given by the applicant 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.
(1A)  The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
(a)  a reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and
(b)  it is in the public interest to make the order.
(2)  On an application under section 28 or 29, the Tribunal may, by order, stay the operation of a determination by the Children’s Guardian under this Act relating to the applicant pending the determination of the matter.
Note.
 Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997 enables a decision the subject of an application under section 27 of this Act for an administrative review under that Act to be stayed by the Tribunal.
(3)    (Repealed)