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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 23 September 2017 at 17:20)
Part 5
Part 5 Provision of information
31   Powers of Children’s Guardian to compel production of information
(1)  The Children’s Guardian may, by notice in writing, require any government agency to provide the Children’s Guardian with information (including documents) relevant to an assessment of whether a person poses a risk to the safety of children.
(2)  A notice under subsection (1) may be given for the purposes of:
(a)  preparing submissions to the Tribunal under this Act or section 16 of the Child Protection (Offenders Registration) Act 2000, or
(b)  determining an application for a working with children check clearance or an assessment of an applicant or the holder of a clearance.
(3)  A government agency to which any such notice is given is by this section authorised and required to provide the Children’s Guardian with the information sought by the notice.
(4)  The Children’s Guardian may, by notice in writing, request a person other than a government agency to provide the Children’s Guardian with a statement setting out information specified by the notice relevant to an assessment of whether a person poses a risk to the safety of children for the purposes of this Act.
(5)  A person other than a government agency to whom any such request is given is by this section authorised to provide the Children’s Guardian with the information requested.
(6)  A notice under this section may specify a day on or before which the notice is to be complied with.
(7)  If documents are given to the Children’s Guardian under this section, the Children’s Guardian:
(a)  may take possession of, and make copies of or take extracts from, the documents, and
(b)  may keep possession of the documents for such period as is necessary for the purposes of preparing the submission or considering an application, and
(c)  during that period must permit them to be inspected at all reasonable times by the persons who would be entitled to inspect them if they were not in the possession of the Children’s Guardian.
32   Incidental disclosure of information by DPP authorised
(1)  The Director of Public Prosecutions is, on receipt of a notice under section 31, authorised to disclose to the Children’s Guardian information or other documents that may contain information in addition to the information required by the notice, whether or not that information or those documents are subject to legal professional privilege or other restrictions on disclosure.
(2)  This section has effect despite any other Act or law.
33   Notification of offences and other information
(1)  The Commissioner of Police is authorised at any time, in accordance with this Part and the regulations, to disclose (or arrange for a member of the NSW Police Force to disclose) to the Children’s Guardian the following information:
(a)  information relating to any matter that may cause a person to be a disqualified person or result in an assessment requirement affecting a person,
(b)  information relating to the criminal history of a person, including (but not limited to) information about offences that cause or may cause the person to be a disqualified person or result in an assessment requirement affecting the person,
(c)  without limiting paragraph (a) or (b), information relating to the circumstances of an offence or other matter disclosed under this section.
(2)  Information that may be disclosed under this section includes:
(a)  information relating to spent convictions, despite anything to the contrary in the Criminal Records Act 1991, and
(b)  information relating to criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and
(c)  information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900.
(3)  This section does not limit the persons to whom, or the circumstances in which, information relating to the criminal history, including the criminal record, of persons may be disclosed apart from this Act.
(4)  Information about a person’s criminal history may be disclosed under this Act whether or not the information relates to events that occurred when the person was under the age of 18 years.
34   Notification of information relating to criminal history for interstate child-related work screening
(1)  The Commissioner of Police may disclose (or arrange for a member of the NSW Police Force to disclose) information relating to any criminal history of persons to the following persons for the purposes of interstate child-related work screening:
(a)  the Australian Crime Commission,
(b)  a police force or service of the Commonwealth or another State or Territory,
(c)  an approved interstate screening agency.
(2)  A person to whom information is disclosed may disclose that information to an approved interstate screening agency for the purposes of interstate child-related work screening undertaken by the agency.
(3)  The Commissioner of Police may disclose (or arrange for a member of the NSW Police Force to disclose) to an approved interstate screening agency, at the request of the agency, information relating to the circumstances of an offence or alleged offence disclosed under this section for the purposes of interstate child-related work screening.
(4)  Information that may be disclosed under this section includes:
(a)  information relating to convictions, including spent convictions, quashed convictions and offences for which a pardon has been given, despite anything to the contrary in the Criminal Records Act 1991,
(b)  information relating to criminal charges, whether heard or not heard, proven, dismissed, withdrawn or discharged,
(c)  information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900.
(5)  This section does not limit the persons to whom, or the circumstances in which, information relating to the criminal history, including the criminal record of, persons may be disclosed apart from this Act.
(6)  In this section:
approved interstate screening agency means:
(a)  a person or body prescribed by the regulations, or
(b)  a body that is authorised under a law of the Commonwealth, another State or a Territory to conduct interstate child-related work screening and is approved by the Minister for the purposes of this section.
interstate child-related work screening means using information about persons who work, or seek to work, with children in a way that is authorised or required under a law of the Commonwealth, another State or a Territory, for the purpose of estimating the risk to the safety of children posed by any such person if working with children.
35   Notification by reporting bodies of conduct constituting assessment requirement trigger
(1)  It is the duty of a reporting body to notify the Children’s Guardian of the name and other identifying particulars of any child-related worker against whom the reporting body has made a finding that the worker has engaged in conduct specified in clause 2 of Schedule 1.
(1A)  It is the duty of a reporting body that is a designated agency that has authorised a person as an authorised carer, to notify the Children’s Guardian of the name and other identifying particulars of each adult person:
(a)  who resides for 3 weeks or more on the same property as the authorised carer, and
(b)  against whom the reporting body has made a finding that the adult person has engaged in conduct specified in clause 2 of Schedule 1.
(2)  Notification under this section does not extend to findings made by the reporting body before 3 July 1995 unless:
(a)  the reporting body is otherwise directed in writing by the Children’s Guardian in respect of a finding made by the reporting body, or
(b)  a person holding a key position in the organisation has knowledge of a finding made by the reporting body.
(2A)  A direction of the Children’s Guardian may specify a particular finding or may specify findings of a particular class (such as findings against a specified person or findings during a specified period).
(2B)  Nothing in this section:
(a)  prevents a reporting body from notifying the Children’s Guardian about a finding made before 3 July 1995, or
(b)  requires a reporting body or a person holding a key position to review or to seek out records created before 3 July 1995, otherwise than in accordance with a direction given under this section.
(3)  The regulations may make provision for or with respect to the following:
(a)  the form of any such notification,
(b)  the provision by reporting bodies of further particulars of any such matter, or any potential such matter, if requested by the Children’s Guardian,
(c)  the keeping of records by reporting bodies of information about such matters or potential such matters supplied to the Children’s Guardian,
(d)  the amendment or withdrawal of a notification by a reporting body.
(4)  In this section:
reporting body means the following:
(a)  a NSW Government agency,
(b)  a government sector agency within the meaning of the Government Sector Employment Act 2013,
(c)  a registration or other licensing authority constituted under an Act,
(c1)  a designated agency,
(d)  a designated government agency or designated non-government agency within the meaning of Part 3A of the Ombudsman Act 1974 that has been granted an exemption under section 25CA of that Act,
(e)  any other employer or professional or other body that supervises the conduct of an employee prescribed by the regulations for the purposes of this section.
36   Enforcement notices
(1)  The Children’s Guardian may, by notice in writing served on a reporting body or an officer of a reporting body, require the reporting body to comply with obligations of the reporting body under section 35 within the period specified in the notice.
(2)  The Children’s Guardian may serve a notice under this section if it is of the opinion that the reporting body has failed to comply with any provision of section 35.
(3)  The notice must set out the reasons for the notice being given.
(4)  The period specified in a notice is to be not less than 28 days.
(5)  The Children’s Guardian may revoke a notice at any time.
(6)  A person who fails, without reasonable excuse, to comply with a notice in force under this section 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)  In any proceedings for an offence against this section, the onus of proving that a person had a reasonable excuse lies with the defendant.
(8)  Nothing in this section prevents the Children’s Guardian from contacting reporting bodies for the purpose of informing them of their obligations under this Act or requesting any information that reporting bodies are required to provide to the Children’s Guardian under this Act.
36A   Exchange of information to bodies in other jurisdictions
(1)  In this section:
working with children check information means information relevant to determining whether to grant or cancel a working with children check clearance (or its equivalent in another jurisdiction) to a person and may include any information about the person.
(2)  The object of this section is to provide for the exchange of working with children check information between the Children’s Guardian and bodies that administer working with children check clearances in other jurisdictions.
(3)  The Minister may, by order published in the Gazette, make protocols setting out the circumstances under which working with children check information may be exchanged under this section.
(4)  The protocols may contain recommended privacy standards for bodies in other jurisdictions and may prohibit the disclosure of information under this section that do not adopt those standards.
(5)  The Minister is to consult with the Privacy Commissioner in the preparation of the protocols.
(6)  The Children’s Guardian may exchange working with children check information with bodies that administer working with children check clearances in other jurisdictions, but only if the exchange is in accordance with the protocols.
(7)  If a person, acting in good faith, exchanges working with children check information in accordance with this section, that person is not liable to any civil or criminal action, or any disciplinary action, for exchanging the information.
(8)  Nothing in this section limits an exchange of working with children check information that is otherwise permitted under any Act or law.