Working with Children Amendment Act 2016

Authorised by the Chief Parliamentary Counsel Authorised Version i Working with Children Amendment Act 2016 No. 72 of 2016 TABLE OF PROVISIONS Section Page Part 1—Preliminary 1 1 Purposes 1 2 Commencement 2 3 Principal Act 2 Part 2—General amendments 3 4 Definitions 3 5 When is a charge pending? 3 6 What is child-related work? 3 7 Category A application 4 8 Category B application 4 9 Category C application 5 10 Determination of re-assessment—category A 6 11 Determination of re-assessment—category B 6 12 Determination of re-assessment—category C 7 13 Revocation powers on failure to provide information 8 14 Jurisdiction of VCAT—category A 8 15 Jurisdiction of VCAT—category B 8 16 Jurisdiction of VCAT—category C 8 17 Offence for holder of negative notice to apply for child-related work 8 18 New section 41A inserted 8 19 Secretary may notify police of certain matters 9 20 Category A offences 9 21 Obligations and orders and offences 10 Part 3—Amendments relating to kinship care 11 22 What is child-related work—kinship care 11 23 Application for working with children check 11 24 Person working with closely related child 11 25 Engaging in child-related work without an assessment notice 12 26 New sections 42B and 42C inserted 12 27 New section 54 inserted 14 Part 4—Amendments relating to non-conviction charges 15 28 Category C application 15 29 Determination of re-assessment—category C 15 -- 1 of 19 -- Section Page ii Authorised by the Chief Parliamentary Counsel Part 5—Repeal of amending Act 16 30 Repeal of amending Act 16 ═══════════════ Endnotes 17 1 General information 17 -- 2 of 19 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Working with Children Amendment Act 2016 † No. 72 of 2016 [Assented to 29 November 2016] The Parliament of Victoria enacts: Part 1—Preliminary 1 Purposes The main purposes of this Act are to amend the Working with Children Act 2005— (a) to amend the definitions of direct contact and child-related work; and Victoria -- 3 of 19 -- Part 1—Preliminary Working with Children Amendment Act 2016 No. 72 of 2016 2 Authorised by the Chief Parliamentary Counsel (b) to require family members and other persons of significance to a child providing the child with out of home care to obtain assessment notices; and (c) to require non-conviction charges to be part of the relevant criminal history of applicants for assessment notices; and (d) to enable the Secretary to the Department of Justice and Regulation to compel the production of certain information; and (e) to enable information to be exchanged between the Department of Justice and Regulation and the Department of Health and Human Services; and (f) to make technical and miscellaneous changes to that Act. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 1 August 2017, it comes into operation on that day. 3 Principal Act In this Act, the Working with Children Act 2005 is called the Principal Act. -- 4 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 3 Authorised by the Chief Parliamentary Counsel Part 2—General amendments 4 Definitions (1) In section 3(1) of the Principal Act, for paragraph (b) of the definition of direct contact substitute— "(b) face to face contact; or (c) contact by post or other written communication; or (d) contact by telephone or other oral communication; or (e) contact by email or other electronic communication;". (2) In section 3(1) of the Principal Act, in the definition of Secretary, after "Justice" insert "and Regulation". 5 When is a charge pending? In section 6(1) of the Principal Act, for "dealt with in any of the following ways" substitute "dealt with, including in any of the following ways". 6 What is child-related work? (1) In section 9(1)(b) of the Principal Act omit "and that contact is not directly supervised by another person". (2) In section 9 of the Principal Act— (a) subsection (2) is repealed; (b) the example at the foot of subsection (2) is repealed. -- 5 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 4 Authorised by the Chief Parliamentary Counsel 7 Category A application (1) For section 12(1)(d) of the Principal Act substitute— "(d) who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category A offence specified in clause 1 or 2 of Schedule 1 if the conduct constituting or alleged to constitute that offence occurred when the person was an adult; or". (2) After section 12(3) of the Principal Act insert— "(4) For the purposes of this section, if the conduct constituting or alleged to constitute an offence occurs between 2 dates, one on which the person was a child and one on which the person was an adult, that conduct occurs when the person was an adult.". 8 Category B application (1) For section 13(1)(a) of the Principal Act substitute— "(a) who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category B offence specified in clause 2, 8, 9 or 14A of Schedule 2 if the conduct constituting or alleged to constitute that offence occurred when the person was an adult; or". (2) For section 13(1)(c) of the Principal Act substitute— "(c) who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category A -- 6 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 5 Authorised by the Chief Parliamentary Counsel offence specified in clause 1 or 2 of Schedule 1 if the conduct constituting or alleged to constitute that offence occurred when the person was a child.". (3) In section 13(3)(a) of the Principal Act omit "that was not directly supervised by another person". (4) After section 13(3) of the Principal Act insert— "(4) For the purposes of this section, if the conduct constituting or alleged to constitute an offence occurs between 2 dates, one on which the person was a child and one on which the person was an adult, that conduct occurs when the person was an adult.". 9 Category C application (1) For section 14(1)(b) of the Principal Act substitute— "(b) who is charged with or has at any time (whether before, on or after the commencement of this section) been convicted or found guilty of a category B offence specified in clause 2, 8, 9 or 14A of Schedule 2 if the conduct constituting or alleged to constitute that offence occurred when the person was a child; or". (2) In section 14(2)(b)(i) of the Principal Act omit "that was not directly supervised by another person". (3) After section 14(3) of the Principal Act insert— "(4) For the purposes of this section, if the conduct constituting or alleged to constitute an offence occurs between 2 dates, one on which the person was a child and one on which the person was an adult, that conduct occurs when the person was an adult.". -- 7 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 6 Authorised by the Chief Parliamentary Counsel 10 Determination of re-assessment—category A (1) For section 21AB(1)(d) of the Principal Act substitute— "(d) the person has been charged with or convicted or found guilty of a category A offence specified in clause 1 or 2 of Schedule 1 if the conduct constituting or alleged to constitute that offence occurred when the person was an adult; or". (2) After section 21AB(2) of the Principal Act insert— "(3) For the purposes of this section, if the conduct constituting or alleged to constitute an offence occurs between 2 dates, one on which the person was a child and one on which the person was an adult, that conduct occurs when the person was an adult.". 11 Determination of re-assessment—category B (1) For section 21AC(1)(a) of the Principal Act substitute— "(a) the person has been charged with or convicted or found guilty of a category B offence specified in clause 2, 8, 9 or 14A of Schedule 2 if the conduct constituting or alleged to constitute that offence occurred when the person was an adult; or". (2) For section 21AC(1)(c) of the Principal Act substitute— "(c) the person has been charged with or convicted or found guilty of a category A offence specified in clause 1 or 2 of Schedule 1 if the conduct constituting or alleged to constitute that offence occurred when the person was a child.". -- 8 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 7 Authorised by the Chief Parliamentary Counsel (3) In section 21AC(3)(a) of the Principal Act omit "that was not directly supervised by another person". (4) After section 21AC(3) of the Principal Act insert— "(4) For the purposes of this section, if the conduct constituting or alleged to constitute an offence occurs between 2 dates, one on which the person was a child and one on which the person was an adult, that conduct occurs when the person was an adult.". 12 Determination of re-assessment—category C (1) For section 21AD(1)(b) of the Principal Act substitute— "(b) the person has been charged with or convicted or found guilty of a category B offence specified in clause 2, 8, 9 or 14A of Schedule 2 if the conduct constituting or alleged to constitute that offence occurred when the person was a child; or". (2) In section 21AD(2)(b)(i) of the Principal Act omit "that was not directly supervised by another person". (3) After section 21AD(3) of the Principal Act insert— "(4) For the purposes of this section, if the conduct constituting or alleged to constitute an offence occurs between 2 dates, one on which the person was a child and one on which the person was an adult, that conduct occurs when the person was an adult.". -- 9 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 8 Authorised by the Chief Parliamentary Counsel 13 Revocation powers on failure to provide information After section 21A(2) of the Principal Act insert— "(3) The Secretary is not required to continue to carry out or complete the re-assessment of the person whose assessment notice has been revoked under subsection (1).". 14 Jurisdiction of VCAT—category A In section 26A(4)(a) of the Principal Act omit "that was not directly supervised by another person". 15 Jurisdiction of VCAT—category B In section 26B(2)(a) of the Principal Act omit "that was not directly supervised by another person". 16 Jurisdiction of VCAT—category C In section 26C(2)(a) of the Principal Act omit "that was not directly supervised by another person". 17 Offence for holder of negative notice to apply for child-related work Section 34(3) of the Principal Act is repealed. 18 New section 41A inserted After section 41 of the Principal Act insert— "41A Secretary may require production of information (1) If the Secretary suspects that a person has committed an offence against this Act or the regulations or Part 5 of the Sex Offenders Registration Act 2004, the Secretary may, by notice in writing, require any person to provide any information that the Secretary thinks necessary to determine whether that suspicion is reasonable. -- 10 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 9 Authorised by the Chief Parliamentary Counsel (2) A person who receives a notice under subsection (1) must not, without reasonable excuse, fail to provide the information specified in the notice to the Secretary within 28 days or any longer period specified in the notice. Penalty: 60 penalty units. (3) In responding to a notice under subsection (1), a person does not contravene any duty of confidentiality imposed on the person by or under any Act (including the Judicial Proceedings Reports Act 1958) or agreement, despite anything to the contrary in that Act or agreement. (4) For the purposes of subsection (2), it is a reasonable excuse for a natural person to refuse or fail to provide information that the person is required to provide under subsection (1) if the provision of the information would tend to incriminate the person.". 19 Secretary may notify police of certain matters In section 42 of the Principal Act, for "Part 4 of this Act" substitute "this Act or the regulations". 20 Category A offences (1) In clause 1 of Schedule 1 to the Principal Act, for "8 or 9" substitute "8, 9 or 10". (2) In clause 2 of Schedule 1 to the Principal Act, after "offence" insert "or an offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted a child abuse material offence". -- 11 of 19 -- Part 2—General amendments Working with Children Amendment Act 2016 No. 72 of 2016 10 Authorised by the Chief Parliamentary Counsel (3) After clause 9 of Schedule 1 to the Principal Act insert— "10 An offence under a law of a jurisdiction other than Victoria that, if it had been committed in Victoria, would have constituted an offence specified in clause 3, 4, 5, 6, 7, 8 or 9.". 21 Obligations and orders and offences (1) For clause 2.1 of Schedule 3 to the Principal Act substitute— "2.1 An offence specified in clause 1 of Schedule 1 to the Sentencing Act 1991 (sexual offences) other than a carnal knowledge offence. 2.1A A carnal knowledge offence where the conduct constituting the offence occurs when the person committing the offence is an adult.". (2) For clause 2.7(b) of Schedule 3 to the Principal Act substitute— "(b) the conduct constituting the offence occurred when the person committing the offence is an adult.". (3) In clause 2.8 of Schedule 3 to the Principal Act, for "where the person committing the offence is an adult" substitute "where the conduct constituting the offence occurs when the person committing the offence is an adult". (4) In clause 2.9 of Schedule 3 to the Principal Act, for "where the person committing the offence is an adult" substitute "where the conduct constituting the offence occurs when the person committing the offence is an adult". -- 12 of 19 -- Part 3—Amendments relating to kinship care Working with Children Amendment Act 2016 No. 72 of 2016 11 Authorised by the Chief Parliamentary Counsel Part 3—Amendments relating to kinship care 22 What is child-related work—kinship care (1) After section 9(5) of the Principal Act insert— "(6) Despite any other provision of this section, a person is engaged in child-related work if— (a) the person is a family member or other person of significance to a child; and (b) the child is or has been placed in the out of home care of that person under the Children, Youth and Families Act 2005.". (2) After section 9(8) of the Principal Act insert— "(9) In this section— out of home care means care of a child by a person other than a parent of the child.". 23 Application for working with children check After section 10(7) of the Principal Act insert— "(8) If an application specifies that the applicant is engaged or intends to engage in child-related work described in section 9(6), that application is taken not to specify an intention to engage in child-related work for profit or gain.". 24 Person working with closely related child In section 28(1) of the Principal Act, after "child-related work" insert "(other than a person who engages in child-related work described in section 9(6))". -- 13 of 19 -- Part 3—Amendments relating to kinship care Working with Children Amendment Act 2016 No. 72 of 2016 12 Authorised by the Chief Parliamentary Counsel 25 Engaging in child-related work without an assessment notice After section 33(2A) of the Principal Act insert— "(2B) A person is not guilty of an offence against subsection (1) if— (a) at the time the offence is alleged to have been committed, the work engaged in is child-related work described in section 9(6); and (b) the person applies, within 21 days after first engaging in that work, for a working with children check to be carried out.". 26 New sections 42B and 42C inserted After section 42A of the Principal Act insert— "42B Secretary may notify Department of Health and Human Services of certain matters (1) Nothing in this Act prevents the Secretary notifying the Secretary to the Department of Health and Human Services of the following in relation to a current assessment notice, the application for which specifies that the applicant is engaged or intends to engage in child-related work described in section 9(6)— (a) if the holder surrenders the assessment notice; (b) if the Secretary revokes or suspends the assessment notice; (c) if the holder notifies the Secretary of a change in any person by whom the holder is engaged in child-related work. -- 14 of 19 -- Part 3—Amendments relating to kinship care Working with Children Amendment Act 2016 No. 72 of 2016 13 Authorised by the Chief Parliamentary Counsel (2) Nothing in this Act prevents the Secretary notifying the Secretary to the Department of Health and Human Services of the following in relation to an application for an assessment notice that specifies that the applicant is engaged or intends to engage in child-related work described in section 9(6)— (a) if the application is made, withdrawn or reinstated; (b) if the Secretary gives an assessment notice, an interim negative notice or a negative notice in relation to the application; (c) if the applicant notifies the Secretary of a change in any person by whom the applicant is engaged in child-related work. 42C Disclosure of information by the Department of Health and Human Services to the Secretary Nothing in this Act or the Children, Youth and Families Act 2005 prevents the Secretary to the Department of Health and Human Services disclosing to the Secretary information relating to a person who is engaged in child-related work described in section 9(6) if the disclosure is made for the purposes of the administration or execution of this Act or the Children, Youth and Families Act 2005.". -- 15 of 19 -- Part 3—Amendments relating to kinship care Working with Children Amendment Act 2016 No. 72 of 2016 14 Authorised by the Chief Parliamentary Counsel 27 New section 54 inserted After section 53 of the Principal Act insert— "54 Transitional provision—Working with Children Amendment Act 2016 A person is not guilty of an offence against section 33(1) if— (a) at the time the offence is alleged to have been committed, the work engaged in is child-related work described in section 9(6); and (b) the person was engaged in that work immediately before the commencement of Part 3 of the Working with Children Amendment Act 2016; and (c) the person applies, within 3 months after that commencement, for a working with children check to be carried out.". -- 16 of 19 -- Part 4—Amendments relating to non-conviction charges Working with Children Amendment Act 2016 No. 72 of 2016 15 Authorised by the Chief Parliamentary Counsel Part 4—Amendments relating to non-conviction charges 28 Category C application (1) In section 14(1)(c) of the Principal Act, for "category B offence." substitute "category B offence; or". (2) After section 14(1)(c) of the Principal Act insert— "(d) who has at any time (whether before, on or after the commencement of this section) been charged with an offence specified in clause 2 of Schedule 3 if the charge has been finally dealt with other than by way of a conviction or a finding of guilt. Note For examples of the ways a charge may be finally dealt with, see section 6(1).". 29 Determination of re-assessment—category C (1) In section 21AD(1)(c) of the Principal Act, for "category B offence." substitute "category B offence; or". (2) After section 21AD(1)(c) of the Principal Act insert— "(d) the person has been charged with an offence specified in clause 2 of Schedule 3 and the charge has been finally dealt with other than by way of a conviction or a finding of guilt. Note For examples of the ways a charge may be finally dealt with, see section 6(1).". -- 17 of 19 -- Part 5—Repeal of amending Act Working with Children Amendment Act 2016 No. 72 of 2016 16 Authorised by the Chief Parliamentary Counsel Part 5—Repeal of amending Act 30 Repeal of amending Act This Act is repealed on 1 August 2018. Note The repeal of this Act does not affect the continuing operation of the amendments made by it (see section 15(1) of the Interpretation of Legislation Act 1984). ═══════════════ -- 18 of 19 -- Endnotes Working with Children Amendment Act 2016 No. 72 of 2016 17 Authorised by the Chief Parliamentary Counsel Endnotes 1 General information See www.legislation.vic.gov.au for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information. † Minister's second reading speech— Legislative Assembly: 26 October 2016 Legislative Council: 10 November 2016 The long title for the Bill for this Act was "A Bill for an Act to amend the Working with Children Act 2005 to require family members providing out of home care to obtain assessment notices, to require non-conviction charges to be considered in the determination of category C applications and re-assessments and for other purposes." -- 19 of 19 --