Contents (2012 - 51)
Child Protection (Working with Children) Act 2012 No 51
Part 7 Miscellaneous
41 Act to bind Crown
This Act binds the Crown in right of New South Wales and, in so far as the legislative power of the Parliament of New South Wales permits, the Crown in all its other capacities.
42 Effect of Act on other rights and procedures
(1) An assessment under this Act or interstate child-related work screening (as referred to in section 34) may be conducted, and information disclosed or obtained, in accordance with this Act despite any other Act or law to the contrary.(2) Nothing in this Act affects any statutory right that an employee may have in relation to employment or termination of employment.(3) However, any court or tribunal exercising jurisdiction with respect to any such right must have regard to the results of any determination of an application for a working with children check clearance or assessment carried out under this Act in connection with the work concerned and the welfare of children as the paramount consideration in that determination or assessment.(4) Nothing in this Act affects the operation of Part 2 of Chapter 9 of the Health Services Act 1997.(5) This section is subject to section 47.
42A Expert advisory panel
(1) The Children’s Guardian may appoint an expert advisory panel to provide advice to the Children’s Guardian about matters relating to offenders for the purposes of assisting the Children’s Guardian in carrying out risk assessments and exercising functions under this Act.(2) The advice provided is not to relate to particular individuals.(3) The Children’s Guardian may make advice provided by the expert advisory panel available to the Tribunal, on the initiative of the Children’s Guardian or at the request of the Tribunal.(4) The Children’s Guardian and the Tribunal may, when exercising functions under this Act, consider any advice provided by the expert advisory panel.(5) The terms of the appointment and any remuneration of members of the expert advisory panel are to be determined by the Children’s Guardian and must be approved by the Minister.
43 Protection of persons relating to child-related work
(1) Anything done or omitted to be done by a person in good faith and with reasonable care:(a) for the purpose of the determination of an application for a working with children check clearance or an assessment of the holder of a clearance, ordoes not subject the person to any action, liability, claim or demand.(b) for the purpose of exercising a function under this Act,(2) Without limiting subsection (1):(a) a person has qualified privilege in proceedings for defamation in respect of anything done or omitted to be done by the person for the purposes of the determination of an application for a clearance or an assessment or otherwise exercising a function under this Act, and(b) damages or compensation (whether for breach of contract or otherwise) are not payable in respect of a decision not to grant a clearance or to cancel a clearance, or to impose an interim bar, as a result of an assessment carried out in good faith and with reasonable care for the purposes of this Act or a review application.(3) This section does not limit or affect any other right, privilege or immunity that a person has as a defendant in any proceedings.
44 Evidentiary certificate
A certificate issued by the Children’s Guardian that states that, on a specified date or during a specified period:(a) a specified person was or was not the holder of a working with children check clearance, or(b) a specified person had or had not made an application for a clearance, or(c) a clearance was or was not in force, oris admissible in legal proceedings as evidence of the matters so stated.(d) a specified person was or was not subject to an interim bar,
45 Unauthorised disclosure or dishonest collection of information
(1) A person who discloses any information obtained by the person in connection with the exercise of functions under this Act or the regulations is guilty of an offence unless the disclosure:(a) is made in good faith for the purposes of the exercise of a function under this Act or the regulations, or(b) is made with the consent of the person to whom the information relates, or(c) is ordered by a court, or any other body or person exercising judicial functions, for the purposes of the hearing or determination by the court, body or person of any matter, or(d) is made with other lawful excuse.(2) A person who dishonestly obtains confidential information relating to the exercise of functions under this Act or the regulations is guilty of an offence.(3) For the avoidance of doubt, if a worker has consented to the disclosure to an agency prescribed by the regulations of information indicating that a criminal record check did not disclose any criminal record in relation to the worker, the Children’s Guardian may, at the time of the verification of the worker under section 9A, disclose that information to the Secretary of the agency.Maximum penalty: 50 penalty units, or imprisonment for 6 months, or both.
45A False or misleading statements
A person must not, in any application under this Act or the regulations, or in connection with an inquiry made by the Children’s Guardian in relation to any such application, make a statement or furnish information that the person knows to be false or misleading in a material particular.Maximum penalty: 5 penalty units.
46 Obtaining information on disciplinary matters under Government Information (Public Access) Act 2009
(1) A person against whom a finding referred to in clause 2 of Schedule 1 has been made is, subject to this section, entitled to apply for access under the Government Information (Public Access) Act 2009 to any information about the finding. That Act applies to the determination of any such application for access.(2) Any provision of that Act relating to fees or charges payable by applicants does not apply to such an application for access.(3) The provisions of the Government Information (Public Access) Act 2009 apply for the purposes of this section whether or not the agency is an agency to which those provisions apply.(4) The regulations under this Act may modify any provisions of that Act in its application under this section.
47 Relationship with other Acts and laws
(1) A prohibition on employment under this Act prevails to the extent of any inconsistency between it and any other Act or law.(2) The Industrial Relations Commission or any other court or tribunal does not have jurisdiction under any Act or law to order the re-instatement or re-employment of a person or worker contrary to a prohibition on employment imposed by this Act, or to order the payment of damages or compensation for any removal from employment of a person from employment prohibited under this Act.
48 Information about old offences may be given
For the purposes of this Act, section 579 of the Crimes Act 1900 does not apply to or in respect of an offence referred to in Schedule 1 or 2.
48A Reports under Children and Young Persons (Care and Protection) Act 1998
(1) Any information obtained by the Children’s Guardian in the course of exercising functions under this Act may be used for the purposes of making a report to the Secretary under section 24 (Report concerning child or young person at risk of significant harm) or 27 (Mandatory reporting) of the Children and Young Persons (Care and Protection) Act 1998.(1A) Any information about or in connection with a person (who the Children’s Guardian reasonably believes to be any one or more of the following) that has been obtained or used by the Children’s Guardian in the course of exercising functions under this Act, may be disclosed to the Secretary for the purposes of the Secretary exercising functions under Chapter 4 of the Children and Young Persons (Care and Protection) Act 1998:(a) a person who is or has been an authorised carer, a carer applicant, a prospective adoptive parent, a guardian or a prospective guardian,(b) a person who resides or has resided on the same property as another person while that other person is or was an authorised carer, a carer applicant, a prospective adoptive parent, a guardian or a prospective guardian.(2) A report referred to in section 29 of the Children and Young Persons (Care and Protection) Act 1998 may be provided to the Children’s Guardian for the purpose of the exercise of the Children’s Guardian’s functions under this Act. Any such report may not be subsequently dealt with by the Children’s Guardian in a manner that contravenes that section, except to the extent that it is necessary for the Children’s Guardian to do so in the exercise of functions under this Act.(3) In this section:guardian has the same meaning as in section 79A of the Children and Young Persons (Care and Protection) Act 1998.
49 Nature of proceedings for offences
Proceedings for an offence under this Act or the regulations may be dealt with summarily before the Local Court.
50 Offences by corporations
(1) If a corporation contravenes, whether by act or omission, any provision of this Act, each person who is a director of the corporation or who is concerned in the management of the corporation is taken to have contravened the same provision if the person knowingly authorised or permitted the contravention.(2) Subsection (1) does not apply in respect of a contravention of a provision of the regulations that is declared by the regulations to be an excluded provision for the purposes of this section.(3) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or has been convicted under the provision.(4) Nothing in this section affects any liability imposed on a corporation for an offence committed by the corporation under this Act.(5) This section applies only to offences against Part 2.
50A Penalty notices
(1) An authorised officer may issue a penalty notice to a person if it appears to the officer that the person has committed a penalty notice offence.(2) A penalty notice offence is an offence against this Act or the regulations that is prescribed by the regulations as a penalty notice offence.(3) The Fines Act 1996 applies to a penalty notice issued under this section.Note.The Fines Act 1996 provides that, if a person issued with a penalty notice does not wish to have the matter determined by a court, the person may pay the amount specified in the notice and is not liable to any further proceedings for the alleged offence.(4) The amount payable under a penalty notice issued under this section is the amount prescribed for the alleged offence by the regulations (not exceeding the maximum amount of penalty that could be imposed for the offence by a court).(5) This section does not limit the operation of any other provision of, or made under, this or any other Act relating to proceedings that may be taken in respect of offences.
50B Authorised officers
(1) The Children’s Guardian may appoint any person employed in the Office of the Children’s Guardian (or any class of persons so employed) as an authorised officer for the purposes of this Act.(2) The Children’s Guardian may revoke or amend an appointment at any time.(3) Every authorised officer is to be provided with identification as an authorised officer.(4) In the course of exercising the functions of an authorised officer under this Act, the officer must, if requested to do so by any person affected by the exercise of any such function, produce to the person the officer’s identification as an authorised officer.
51 Service of documents
(1) A document that is authorised or required by this Act or the regulations to be given to any person may be given by:(a) in the case of a natural person:(i) delivering it to the person personally, or(ii) sending it by post to the address specified by the person for the giving or service of documents or, if no such address is specified, the residential or business address of the person last known to the person giving or serving the document, or(iii) sending it by facsimile transmission to the facsimile number of the person or by email to the email address of the person, or(b) in the case of a body corporate:(i) leaving it with a person apparently of or above the age of 16 years at, or by sending it by post to, the head office, a registered office or a principal office of the body corporate or to an address specified by the body corporate for the giving or service of documents, or(ii) sending it by facsimile transmission to the facsimile number of the body corporate or by email to the email address of the body corporate.(2) Notice of a working with children number may be given to a person by sending it by SMS message to the person’s last known mobile telephone number.(3) Nothing in this section affects the operation of any provision of a law or of the rules of a court authorising a document to be served on a person in any other manner.
(1) The Governor may make regulations, not inconsistent with this Act, for or with respect to any matter that by this Act is required or permitted to be prescribed or that is necessary or convenient to be prescribed for carrying out or giving effect to this Act.(2) In particular, the regulations may make provision for or with respect to the following:(a) the information to be provided by the Children’s Guardian to applicants for or holders of working with children check clearances,(b) the exemption of persons or classes of persons from all or any requirements of this Act, unconditionally or subject to conditions.(3) The regulations may amend Schedule 1 or Schedule 2.(4) The regulations may create offences punishable by a penalty not exceeding 20 penalty units.
53 Review of Act
(1) The Minister is to review this Act to determine whether the policy objectives of the Act remain valid and whether the terms of the Act remain appropriate for securing those objectives.(2) The review is to be undertaken as soon as possible after the period of 5 years from the date of assent to this Act.(3) A report on the outcome of the review is to be tabled in each House of Parliament within 12 months after the end of the period of 5 years.