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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 15 December 2017 at 05:48)
Part 6
Part 6 Functions of Children’s Guardian
37   Database functions of Children’s Guardian
The Children’s Guardian may exercise the following functions:
(a)  collecting and maintaining a database of orders by the Tribunal under this Act, and other orders and proceedings completed against a person that result in assessment requirements, including updating, correcting and removing entries on the database,
(b)  collecting and maintaining a database of notifications to the Children’s Guardian of matters that constitute or might constitute the basis of an assessment requirement, including updating, correcting and removing entries on the database,
(c)  collecting and maintaining a database of employers and other persons who verify information about working with children check clearances and applications for clearances, including updating, correcting or removing entries on the database.
38   Children’s Guardian’s public awareness and advice functions
(1)  The Children’s Guardian may promote public awareness of and provide advice on requirements for working with children check clearances and related matters concerning child-related work, including encouraging organisations to develop their capacity to be safe for children.
(2)  Without limiting subsection (1), the Children’s Guardian may make information available to employers and other persons about matters to consider in relation to employing persons to work with children.
Note.
 For the Children’s Guardian’s other child-related employment functions, see Chapter 13 of the Children and Young Persons (Care and Protection) Act 1998.
39   Children’s Guardian’s monitoring and auditing functions
(1)  The Children’s Guardian is to monitor and audit compliance with the requirements of this Act and the regulations.
(2)  The Minister may give the Children’s Guardian a written direction on the exercise of its functions under this section, and the Children’s Guardian is to comply with the direction.
40   Power to compel production of information for monitoring or auditing purposes
(1)  For the purposes of exercising its monitoring or auditing functions under this Act, the Children’s Guardian may, by notice in writing, require an officer of a government agency, an employer or a body that supervises, represents or has other functions with respect to an employer to do any one or more of the following:
(a)  to provide to the Children’s Guardian, on or before a day specified in the notice, a statement setting out such information as is so specified relating to the matters being monitored or audited,
(b)  to provide to the Children’s Guardian, on or before a day specified in the notice, such documents as are so specified relating to the matters being monitored or audited.
(2)  A person who:
(a)  fails, without reasonable excuse, to comply with a requirement of a notice under this section, or
(b)  provides the Children’s Guardian with information that the person knows is false or misleading in a material particular,
is guilty of an offence.
Maximum penalty: 100 penalty units, in the case of a corporation, and 50 penalty units in any other case.
(3)  A notice may specify the manner in which a statement or documents may be given to the Children’s Guardian.
(4)  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 exercising its monitoring or auditing functions, 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.
(5)  In any proceedings for an offence against this section, the onus of proving that a person had a reasonable excuse lies with the defendant.
40A   Power to audit declarations made by exempt workers
(1)  This section applies to a statutory declaration provided to an employer by an exempt worker that contains information relating to the offences specified in Schedule 2.
(2)  The Children’s Guardian may audit the accuracy of the statutory declaration, or may authorise a person to carry out such an audit.
(3)  The Children’s Guardian may authorise a person under this section only if the Privacy Commissioner advises the Children’s Guardian, in writing, that the Privacy Commissioner is satisfied that the person is able to adequately provide for the security of any information obtained in the exercise of functions pursuant to the authorisation.
(4)  The Commissioner of Police is authorised to disclose (or arrange for a member of the NSW Police Force to disclose) the following information for the purposes of this section:
(a)  information relating to spent convictions, despite anything to the contrary in the Criminal Records Act 1991,
(b)  information relating to offences, despite anything to the contrary in section 579 of the Crimes Act 1900.
(5)  If a person authorised under this section reasonably believes that a statutory declaration is inaccurate, the person must, as soon as practicable, inform the Children’s Guardian and provide any information relevant to that belief to the Children’s Guardian.
(6)  The Children’s Guardian may disclose information obtained under this section to the following persons:
(a)  the person who made the statutory declaration,
(b)  the employer of that person,
(c)  a police officer of the State or of the Commonwealth or another State or Territory,
(d)  the Ombudsman,
(e)  any other investigative agency that the Children’s Guardian considers appropriate,
(f)  the Department,
(g)  the Director of Public Prosecutions,
(h)  a court or tribunal,
(i)  an approved interstate screening agency,
(j)  the Minister,
(k)  the Privacy Commissioner,
(l)  any other person approved by the Privacy Commissioner and prescribed in the regulations.
(7)  The Minister may give the Children’s Guardian a written direction on the exercise of functions under this section and the Children’s Guardian is to comply with the direction.
(8)  In this section, exempt worker means a worker who is exempted by the regulations from the requirement to hold a clearance.