Working with Children Amendment (Ministers of Religion and Other Matters) Act 2014
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Working with Children Amendment (Ministers of
Religion and Other Matters) Act 2014
No. 66 of 2014
TABLE OF PROVISIONS
Section Page
PART 1—PRELIMINARY 1
1 Purposes 1
2 Commencement 2
3 Principal Act 3
PART 2—WORKING WITH CHILDREN ACT 2005 AMENDED 4
4 Purpose 4
5 New section 1A inserted 4
1A Protection of children to be paramount 4
6 Definitions 4
7 Heading to Division 1 of Part 2 inserted 6
8 Purpose of Part 7
9 What is child-related work? 7
10 Heading to Division 2 of Part 2 inserted 9
11 Category 1 application 9
12 Category 2 application 10
13 Category 3 application 11
14 Submission sought from applicant before giving negative notice 14
15 Heading to Division 3 of Part 2 inserted 14
16 Outcome of application 14
17 Duration of assessment notice 14
18 Heading to Division 4 of Part 2 inserted 14
19 Holder of assessment notice to notify of relevant change in
circumstances 15
20 Notification of change of employer etc. 15
21 Heading to Division 5 of Part 2 inserted 15
22 Re-assessment 15
23 New sections 21AA to 21AF inserted 16
21AA Consideration of re-assessment 16
21AB Determination of re-assessment—category A 17
21AC Determination of re-assessment—category B 18
21AD Determination of re-assessment—category C 20
-- 1 of 58 --
Section Page
ii
Authorised by the Chief Parliamentary Counsel
21AE Submission sought from holder before determining to
revoke assessment notice 23
21AF Copy of notice to be given to employer or agency 25
24 Heading to Division 6 of Part 2 inserted 25
25 Suspension and revocation powers on failure to provide
information 26
26 Suspension powers on re-assessment—charge or conviction of
relevant offence 26
27 New section 21C inserted 28
21C Revocation of assessment notice and surrender of
document 28
28 Revocation of assessment notice and surrender of document 29
29 Section 26 substituted and sections 26A to 26C inserted 30
26 Jurisdiction of VCAT—general 30
26A Jurisdiction of VCAT—category A 31
26B Jurisdiction of VCAT—category B 34
26C Jurisdiction of VCAT—category C 35
30 Section 32 substituted 36
32 Visiting workers 36
31 Section 32A substituted 37
32A Exemptions subject to negative notice 37
32 Section 32B repealed 37
33 Engaging in child-related work without an assessment notice 37
34 Offence for holder of negative notice to apply for child-related
work 38
35 Offence to engage in child-related work a person who does not
have an assessment notice 39
36 Offence for agency to offer the services of a person who does
not have an assessment notice 40
37 Using volunteer assessment notice for paid work 41
38 False or misleading information 41
39 Confidentiality of information 41
40 Duty on police to notify Secretary of certain matters 41
41 New section 42A inserted 42
42A Secretary may request information during review 42
42 New section 53 inserted 42
53 Transitional provision—Working with Children
Amendment (Ministers of Religion and Other
Matters) Act 2014 42
43 New Schedules 1 to 3 inserted 43
SCHEDULES 43
SCHEDULE 1—Category A Offences 43
SCHEDULE 2—Category B Offences 45
-- 2 of 58 --
Section Page
iii
Authorised by the Chief Parliamentary Counsel
SCHEDULE 3—Obligations and Orders and Offences 50
1 Obligations and orders 50
2 Offences 50
PART 3—VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL ACT 1998 AMENDED 53
44 Review of category 2 application 53
45 Review of category 3 application 53
PART 4—REPEAL OF AMENDING ACT 54
46 Repeal of amending Act 54
═══════════════
ENDNOTES 55
-- 3 of 58 --
Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Working with Children Amendment
(Ministers of Religion and Other
Matters) Act 2014 †
No. 66 of 2014
[Assented to 9 September 2014]
The Parliament of Victoria enacts:
PART 1—PRELIMINARY
1 Purposes
The main purposes of this Act are—
(a) to amend the Working with Children Act
2005—
Victoria
-- 4 of 58 --
Part 1—Preliminary
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
2
Authorised by the Chief Parliamentary Counsel
(i) to provide that the protection of
children is to be the paramount
consideration when administering that
Act; and
(ii) to clarify the definition of child-related
work; and
(iii) to improve the operation of the
assessment notice process; and
(iv) to generally improve the operation of
that Act; and
(b) to amend the provisions of the Victorian
Civil and Administrative Tribunal
Act 1998 relating to the Working with
Children Act 2005.
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 June 2015, it comes into
operation on that day.
s. 2
-- 5 of 58 --
Part 1—Preliminary
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
3
Authorised by the Chief Parliamentary Counsel
3 Principal Act
In this Act, the Working with Children Act 2005
is called the Principal Act.
__________________
See:
Act No.
57/2005.
Reprint No. 3
as at
1 August 2011
and
amending
Act Nos
51/2010,
34/2011,
65/2011,
80/2011,
27/2012,
61/2012,
76/2013,
17/2014,
19/2014,
36/2014 and
37/2014.
LawToday:
www.
legislation.
vic.gov.au
s. 3
-- 6 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
4
Authorised by the Chief Parliamentary Counsel
PART 2—WORKING WITH CHILDREN ACT 2005
AMENDED
4 Purpose
In section 1(1) of the Principal Act, for "have their
suitability to do so checked by a government body"
substitute "are subject to a screening process".
5 New section 1A inserted
After section 1 of the Principal Act insert—
"1A Protection of children to be paramount
When the Secretary or VCAT makes a
decision or takes an action under this Act,
the protection of children from sexual and
physical harm must be the paramount
consideration.".
6 Definitions
(1) In section 3(1) of the Principal Act, in the
definition of direct contact—
(a) in paragraph (b), for "communication; or"
substitute "communication."; and
(b) paragraph (c) is repealed.
(2) In section 3(1) of the Principal Act, in the
definition of interim negative notice, for
", including one given under that section as
applied to a re-assessment by section 21(5)"
substitute "or 21AE(1)(b)".
(3) In section 3(1) of the Principal Act, in the
definition of negative notice, for "section 23"
substitute "section 21C".
(4) In section 3(1) of the Principal Act, insert the
following definitions—
"category A offence means an offence specified in
Schedule 1;
s. 4
-- 7 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
5
Authorised by the Chief Parliamentary Counsel
category B offence means an offence specified in
Schedule 2;
community or treatment order means—
(a) an old community-based order within
the meaning of clause 1 of Schedule 3
to the Sentencing Act 1991; or
(b) an old intensive correction order within
the meaning of clause 1 of Schedule 3
to the Sentencing Act 1991; or
(c) a drug treatment order within the
meaning of the Sentencing Act 1991;
or
(d) a community correction order within
the meaning of the Sentencing Act
1991; or
(e) a fine conversion order within the
meaning of the Sentencing Act 1991;
(f) a fine default unpaid community work
order within the meaning of the
Sentencing Act 1991;
minister of religion means—
(a) a person ordained or appointed as a
recognised religious leader in an
organised religious institution; or
(b) the appointed leader of a local religious
congregation in an organised religious
institution who has general authority
over the operations of that congregation
within the institution;
s. 6
-- 8 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
6
Authorised by the Chief Parliamentary Counsel
work means—
(a) work engaged in—
(i) under a contract of employment or
a contract for services (whether
written or unwritten); or
(ii) as a minister of religion or as part
of the duties of a religious
vocation; or
(iii) as an officer of a body corporate,
member of the committee of
management of an unincorporated
body or association or member of
a partnership; or
(b) practical training undertaken as part of
an educational or vocational course
other than under an arrangement or
agreement under Part 5.4 of the
Education and Training Reform Act
2006; or
(c) work engaged in as a volunteer,
including engaging in unpaid
community work under a community or
treatment order—
but does not include unpaid work engaged in for a
private or domestic purpose;".
(5) In section 3(1) of the Principal Act, the definition
of relevant offence is repealed.
7 Heading to Division 1 of Part 2 inserted
Before section 8 of the Principal Act insert—
"Division 1—Preliminary".
s. 7
-- 9 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
7
Authorised by the Chief Parliamentary Counsel
8 Purpose of Part
(1) In section 8(1) of the Principal Act, for
" for assisting in determining whether a person is
suitable to work" substitute "to screen persons
engaging or intending to engage".
(2) In the note at the foot of section 8 of the Principal
Act, for "(see section 9)" substitute "(see the
definition of work in section 3(1))".
9 What is child-related work?
(1) For section 9(1) of the Principal Act substitute—
"(1) For the purposes of this Act, child-related
work is work—
(a) at or for a service, body or place, or that
involves an activity, specified in
subsection (3); and
(b) that usually involves direct contact with
a child and that contact is not directly
supervised by another person.".
(2) In the example at the foot of section 9(1) of the
Principal Act, for "regular direct contact"
substitute "direct contact".
(3) For the notes at the foot of section 9(1) of the
Principal Act substitute—
"Note
Direct contact is defined in section 3(1).".
(4) After section 9(1) of the Principal Act insert—
"(1A) For the purposes of this Act, work is not
child-related work by reason only of
occasional direct contact with children that is
incidental to the work.".
(5) In section 9(2) of the Principal Act, for "direct
supervision of a person" substitute "direct
supervision of a person's contact with a child".
s. 8
-- 10 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
8
Authorised by the Chief Parliamentary Counsel
(6) For the example at the foot of section 9(2) of the
Principal Act substitute—
"Example
A person who is directly supervising a worker's contact with
a child (whether the worker is paid or a volunteer) leaves the
room in which the worker has contact with the child to make
a phone call. The fact that the person supervising the contact
has left the room for a short period does not mean that the
worker's contact with the child is no longer under direct
supervision.".
(7) The note at the foot of section 9(2) of the
Principal Act is repealed.
(8) In section 9(3) of the Principal Act, for "in
connection with which regular direct contact with a
child may result in work, or practical training, of a
kind referred to in subsection (1) being child-related
work" substitute "referred to in subsection (1)(a)".
(9) After section 9(3)(f) of the Principal Act insert—
"(fa) accommodation services specifically
provided for students in connection with the
operation of a student exchange program
under Part 4.5A of the Education and
Training Reform Act 2006, including the
provision by a person of accommodation in
the person's home;".
(10) In section 9(3)(m) of the Principal Act, after
"of any kind" insert "specifically".
(11) Section 9(3A) of the Principal Act is repealed.
(12) For section 9(4) of the Principal Act substitute—
"(4) Subject to subsection (5) but despite any
other provision of this section, for the
purposes of this Act, work engaged in as a
minister of religion is child-related work
unless any direct contact with children
during the work engaged in as a minister of
s. 9
-- 11 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
9
Authorised by the Chief Parliamentary Counsel
religion is only occasional direct contact that
is incidental to that work.".
(13) For section 9(5) of the Principal Act substitute—
"(5) Despite any other provision of this section,
if a minister of religion is the appointed
leader of a local religious congregation in an
organised religious institution and the
congregation contains any children, work
engaged in as a minister of religion is child-
related work.".
(14) Section 9(6) of the Principal Act is repealed.
10 Heading to Division 2 of Part 2 inserted
Before section 10 of the Principal Act insert—
"Division 2—Applications for working with
children check".
11 Category 1 application
(1) For the heading to section 12 of the Principal Act
substitute—
"Category A application".
(2) For section 12(1) of the Principal Act
substitute—
"(1) An application is a category A application
for the purposes of this Act if it is in respect
of a person—
(a) who is subject to reporting obligations
imposed on him or her by Part 3 of the
Sex Offenders Registration Act 2004;
or
(b) who is subject to an extended
supervision order or interim extended
supervision order under the Serious
Sex Offenders Monitoring Act 2005;
or
s. 10
-- 12 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
10
Authorised by the Chief Parliamentary Counsel
(c) who is subject to a supervision order or
a detention order; or
(d) who, as an adult, 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; or
(e) 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 other than an
offence specified in clause 1 or 2 of
Schedule 1.".
(3) In section 12(2) of the Principal Act, for
"category 1" substitute "category A".
(4) In section 12(3) of the Principal Act—
(a) for "category 1" substitute "category A";
and
(b) in paragraph (a), for "section 26(3)"
substitute "section 26A(5)".
12 Category 2 application
(1) For the heading to section 13 of the Principal Act
substitute—
"Category B application".
(2) For section 13(1) of the Principal Act
substitute—
"(1) An application is a category B application
for the purposes of this Act if it is in respect
of a person—
(a) who, as an adult, is charged with or has
at any time (whether before, on or after
the commencement of this section)
s. 12
-- 13 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
11
Authorised by the Chief Parliamentary Counsel
been convicted or found guilty of a
category B offence specified in
clause 2, 8 or 9 of Schedule 2; or
(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 other than an
offence specified in clause 2, 8 or 9 of
Schedule 2; or
(c) who, as a child, 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.".
(3) In section 13(2) of the Principal Act, for
"category 2" substitute "category B".
13 Category 3 application
(1) For the heading to section 14 of the Principal Act
substitute—
"Category C application".
(2) In section 14(1) of the Principal Act, for
"category 3" substitute "category C".
(3) For section 14(1)(b) of the Principal Act
substitute—
"(b) who, as a child, 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 or 9 of
Schedule 2; or".
(4) Section 14(1)(ba) and (bb) of the Principal Act are
repealed.
s. 13
-- 14 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
12
Authorised by the Chief Parliamentary Counsel
(5) For section 14(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 an offence other
than a category A offence or category B
offence.".
(6) For section 14(2) of the Principal Act
substitute—
"(2) The Secretary must give an assessment
notice on a category C application unless—
(a) the Secretary is satisfied that giving the
notice would pose an unjustifiable risk
to the safety of children having regard
to the factors set out in subsection (3);
or
(b) the Secretary is satisfied that—
(i) a reasonable person would not
allow his or her child to have
direct contact with the applicant
that was not directly supervised by
another person while the applicant
was engaged in any type of child-
related work; or
(ii) the applicant's engagement in any
type of child-related work would
pose an unjustifiable risk to the
safety of children.".
(7) Section 14(2A) of the Principal Act is repealed.
s. 13
-- 15 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
13
Authorised by the Chief Parliamentary Counsel
(8) For section 14(3) of the Principal Act
substitute—
"(3) For the purposes of subsection (2)(a), the
Secretary must have regard to—
(a) the nature and gravity of the conduct
and its relevance to child-related work;
and
(b) the period of time since the applicant
engaged, or allegedly engaged, in the
conduct; and
(c) in the case of an offence, whether a
finding of guilt or a conviction was
recorded for it or a charge for it is still
pending; and
(d) in the case of an offence, the sentence
imposed for it; and
(e) the ages of the applicant and of any
victim at the time the applicant
engaged, or allegedly engaged, in the
conduct; and
(f) whether or not the conduct has been
decriminalised or has ceased to be
subject to disciplinary charges since the
applicant engaged, or allegedly
engaged, in it; and
(g) the applicant's behaviour since he or
she engaged, or allegedly engaged, in
the conduct; and
(h) the likelihood of future threat to a child
caused by the applicant; and
(i) any information given by the applicant
in, or in relation to, the application; and
(j) any other matter that the Secretary
considers relevant to the application.".
s. 13
-- 16 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
14
Authorised by the Chief Parliamentary Counsel
14 Submission sought from applicant before giving
negative notice
(1) In section 16(1A)(a) of the Principal Act, for
"category 1" substitute "category A".
(2) In section 16(4) of the Principal Act omit
"(including that subsection as applied to a
re-assessment by section 21(5))".
15 Heading to Division 3 of Part 2 inserted
Before section 17 of the Principal Act insert—
"Division 3—Outcome of application for
working with children check".
16 Outcome of application
(1) In section 17(1) of the Principal Act, omit "and
subsection (1A)".
(2) Section 17(1A), (1AB) and (1B) of the Principal
Act are repealed.
(3) In section 17(3) and (4) of the Principal Act, for
"category 1" (wherever occurring) substitute
"category A".
17 Duration of assessment notice
(1) In section 19(1) of the Principal Act, for
"section 23" substitute "section 21C".
(2) Section 19(3) of the Principal Act is repealed.
18 Heading to Division 4 of Part 2 inserted
Before section 19A of the Principal Act insert—
"Division 4—Further applications for working
with children check".
s. 14
-- 17 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
15
Authorised by the Chief Parliamentary Counsel
19 Holder of assessment notice to notify of relevant
change in circumstances
(1) In section 20(2) of the Principal Act, for "a
relevant offence" (wherever occurring) substitute
"a category A offence or a category B offence".
(2) In section 20(3)(b) of the Principal Act, for
"section 21" substitute "Division 5".
20 Notification of change of employer etc.
(1) In section 20A(2) of the Principal Act—
(a) for "person referred to in subsection (1)(a)"
substitute "holder of or applicant for the
assessment notice"; and
(b) for "whom the person" substitute "whom the
holder or applicant".
(2) After section 20A(2) of the Principal Act insert—
"(3) If a holder of, or applicant for, an assessment
notice notifies the Secretary that he or she is
not, or is no longer, engaged in child-related
work with a person or listed with an agency,
the Secretary may notify that person or
agency in writing of the information in the
notification.".
21 Heading to Division 5 of Part 2 inserted
Before section 21 of the Principal Act insert—
"Division 5—Re-assessment".
22 Re-assessment
(1) For section 21(2) of the Principal Act
substitute—
"(2) The Secretary is not required to re-assess a
person's eligibility to have an assessment
notice on being notified of a charge for an
offence being finally dealt with if—
s. 19
-- 18 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
16
Authorised by the Chief Parliamentary Counsel
(a) a re-assessment was carried out on the
Secretary being notified of the filing of
the charge-sheet containing the charge;
and
(b) the assessment notice was not revoked
following that re-assessment.".
(2) Section 21(3), (3A), (3B) and (5) of the Principal
Act are repealed.
(3) In section 21(6)(a) of the Principal Act, for
"section 16(1)(b) as applied to a re-assessment by
subsection (5) of this section" substitute "section
21AE(1)(b)".
(4) For section 21(6)(b) of the Principal Act
substitute—
"(b) his or her assessment notice—
(i) has not been revoked under section 21C
following the re-assessment; or
(ii) has not been surrendered under
section 24; or
(iii) has not expired.".
23 New sections 21AA to 21AF inserted
After section 21 of the Principal Act insert—
"21AA Consideration of re-assessment
(1) On a re-assessment of a person's eligibility to
hold an assessment notice, the Secretary—
(a) may have regard to any notice given to
the Secretary by, and make enquiries to,
any relevant prescribed body; and
(b) may make any other enquiries to, or
seek information on the re-assessment
from, any person or source that the
Secretary thinks fit, including the
Director of Public Prosecutions and any
s. 23
-- 19 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
17
Authorised by the Chief Parliamentary Counsel
employee within the meaning of the
Public Administration Act 2004; and
(c) may require the holder of the
assessment notice to provide any
further information that the Secretary
thinks fit in the manner required by the
Secretary within 28 days or any longer
period that the Secretary determines.
(2) On a re-assessment of a person's eligibility to
hold an assessment notice, the Secretary—
(a) is not required to consider any matter
other than the matter that has given rise
to the re-assessment; and
(b) may have regard to any offence or
conduct that was considered by the
Secretary in relation to the giving of the
current assessment notice.
(3) A person in responding to an enquiry or a
request for advice or information from the
Secretary under subsection (1) 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.
21AB Determination of re-assessment—
category A
(1) A re-assessment is a category A
re-assessment if the Secretary re-assesses a
person's eligibility to have an assessment
notice because the Secretary is notified
that—
s. 23
-- 20 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
18
Authorised by the Chief Parliamentary Counsel
(a) the person has become subject to
reporting obligations imposed on him
or her by Part 3 of the Sex Offenders
Registration Act 2004; or
(b) the person has become subject to an
extended supervision order or interim
extended supervision order under the
Serious Sex Offenders Monitoring
Act 2005; or
(c) the person has become subject to a
supervision order or a detention order;
or
(d) the person has been, as an adult,
charged with or convicted or found
guilty of a category A offence specified
in clause 1 or 2 of Schedule 1; or
(e) the person has been charged with or
convicted or found guilty of a
category A offence other than an
offence specified in clause 1 or 2 of
Schedule 1.
(2) The Secretary must determine to revoke
an assessment notice on a category A
re-assessment.
21AC Determination of re-assessment—
category B
(1) A re-assessment is a category B
re-assessment if the Secretary re-assesses a
person's eligibility to have an assessment
notice because the Secretary is notified
that—
(a) the person has been, as an adult,
charged with or convicted or found
guilty of a category B offence specified
in clause 2, 8 or 9 of Schedule 2; or
s. 23
-- 21 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
19
Authorised by the Chief Parliamentary Counsel
(b) the person has been charged with or
convicted or found guilty of a
category B offence other than an
offence specified in clause 2, 8 or 9 of
Schedule 2; or
(c) the person has been, as a child, charged
with or convicted or found guilty of a
category A offence specified in clause 1
or 2 of Schedule 1.
(2) The Secretary must determine to revoke an
assessment notice on a category B
re-assessment unless the Secretary is
satisfied that the person having the notice
would not pose an unjustifiable risk to the
safety of children, having regard to—
(a) the nature and gravity of the offence or
alleged offence and its relevance to
child-related work; and
(b) the period of time since the holder of
the assessment notice committed, or
allegedly committed, the offence; and
(c) whether a finding of guilt or a
conviction was recorded for the offence
or a charge for the offence is still
pending; and
(d) the sentence imposed for the offence;
and
(e) the ages of the holder and of any victim
at the time the holder committed, or
allegedly committed, the offence; and
(f) whether or not the conduct that
constituted the offence or to which the
charge relates has been decriminalised
since the holder committed, or
allegedly committed, the offence; and
s. 23
-- 22 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
20
Authorised by the Chief Parliamentary Counsel
(g) the holder's behaviour since he or she
committed, or allegedly committed, the
offence; and
(h) the likelihood of future threat to a child
caused by the holder; and
(i) any information given by the holder in,
or in relation to, the re-assessment; and
(j) any other matter that the Secretary
considers relevant to the re-assessment.
(3) In satisfying himself or herself that a person
having an assessment notice would not pose
an unjustifiable risk to the safety of children,
the Secretary must be satisfied that—
(a) a reasonable person would allow his or
her child to have direct contact with the
holder of the assessment notice that was
not directly supervised by another
person while the holder was engaged in
any type of child-related work; and
(b) the holder's engagement in any type of
child-related work would not pose an
unjustifiable risk to the safety of
children.
21AD Determination of re-assessment—
category C
(1) A re-assessment is a category C
re-assessment if the Secretary re-assesses a
person's eligibility to have an assessment
notice because the Secretary is notified
that—
(a) the person has become subject to—
(i) a finding of a prescribed kind
made by, or on behalf of, a
prescribed body; or
s. 23
-- 23 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
21
Authorised by the Chief Parliamentary Counsel
(ii) a determination by VCAT under
section 77(4)(g) or (h) or 77(5)(e)
or (f) of the Health Professions
Registration Act 2005 as in force
immediately before its repeal; or
(iii) a determination under section
196(2)(d) or (e) or 197(2)(b) of
the Health Practitioner Regulation
National Law by VCAT or by
another responsible tribunal
within the meaning of that Law; or
(b) the person has been, as a child, charged
with or convicted or found guilty of a
category B offence specified in
clause 2, 8 or 9 of Schedule 2; or
(c) the person has been charged with,
convicted or found guilty of an offence
other than a category A offence or
category B offence.
(2) The Secretary must determine not to revoke
the assessment notice on a category C
re-assessment unless—
(a) the Secretary is satisfied that the person
having the assessment notice would
pose an unjustifiable risk to the safety
of children having regard to the factors
set out in subsection (3); or
(b) the Secretary is satisfied that—
(i) a reasonable person would not
allow his or her child to have
direct contact with the holder of
the assessment notice that was not
directly supervised by another
person while the holder was
engaged in any type of child-
related work; or
s. 23
-- 24 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
22
Authorised by the Chief Parliamentary Counsel
(ii) the holder's engagement in any
type of child-related work would
pose an unjustifiable risk to the
safety of children.
(3) For the purposes of subsection (2)(a), the
Secretary must have regard to—
(a) the nature and gravity of the conduct
and its relevance to child-related work;
and
(b) the period of time since the holder of
the assessment notice engaged, or
allegedly engaged, in the conduct; and
(c) in the case of an offence, whether a
finding of guilt or a conviction was
recorded for it or a charge for it is still
pending; and
(d) in the case of an offence, the sentence
imposed for it; and
(e) the ages of the holder and of any victim
at the time the holder engaged, or
allegedly engaged, in the conduct; and
(f) whether or not the conduct has been
decriminalised or has ceased to be
subject to disciplinary charges since the
holder engaged, or allegedly engaged,
in it; and
(g) the holder's behaviour since he or she
engaged, or allegedly engaged, in the
conduct; and
(h) the likelihood of future threat to a child
caused by the holder; and
(i) any information given by the holder in,
or in relation to, the re-assessment; and
s. 23
-- 25 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
23
Authorised by the Chief Parliamentary Counsel
(j) any other matter that the Secretary
considers relevant to the re-assessment.
21AE Submission sought from holder before
determining to revoke assessment notice
(1) If the Secretary proposes or is required under
this Division to determine to revoke an
assessment notice, the Secretary must, before
finally deciding the re-assessment—
(a) give a written notice to the holder of the
assessment notice that—
(i) informs the holder of the proposal
or requirement; and
(ii) states the information about the
holder of which the Secretary is
aware; and
(iii) invites the holder to make a
submission to the Secretary, in
writing or in another form
approved by the Secretary, within
the period specified in the notice
about his or her eligibility to hold
an assessment notice; and
(b) give an interim negative notice to the
holder of the assessment notice.
(2) The period specified under subsection
(1)(a)(iii) must be not less than—
(a) 14 days in the case of a category A
re-assessment unless the holder of the
assessment notice satisfies the
Secretary that it is appropriate to allow
the holder further time to make a
submission; and
(b) 28 days in the case of any other
re-assessment.
s. 23
-- 26 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
24
Authorised by the Chief Parliamentary Counsel
(3) Before finally determining whether to revoke
an assessment notice the Secretary must
consider any submission made by the holder
in response to a notice under subsection
(1)(a) and within the period specified under
subsection (2) unless the holder notifies the
Secretary that he or she does not want to
make a submission.
(4) The Secretary must determine to revoke an
assessment notice if the holder of that notice
does not make a submission in response to
an interim negative notice under subsection
(1) within the period specified under
subsection (2) unless the holder notifies the
Secretary that he or she does not want to
make a submission.
(5) Any information given by a person under
subsection (1)(a)(iii) is not admissible in
evidence against the person in—
(a) a criminal proceeding; or
(b) a proceeding for the imposition of a
penalty—
other than—
(c) proceedings in respect of an offence
against this Act; or
(d) a proceeding in respect of the falsity or
misleading nature of the information.
(6) If the Secretary—
(a) gives the holder of an assessment notice
an interim negative notice under
subsection (1)(b); and
s. 23
-- 27 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
25
Authorised by the Chief Parliamentary Counsel
(b) finally determines not to revoke that
notice—
the Secretary must give notice in writing to
the holder of the determination not to revoke
the assessment notice.
21AF Copy of notice to be given to employer or
agency
If the Secretary—
(a) gives the holder of an assessment notice
a negative notice under section 21C or
an interim negative notice under
section 21AE; and
(b) is aware that the holder of the notice is
a person who—
(i) is, or is proposed to be, engaged in
child-related work by another
person; or
(ii) is listed with an agency—
the Secretary, if he or she is aware of the
identity of that other person or that agency,
must also give a copy of that notice to that
other person or that agency.
Note
Listed with an agency is defined in section 3(2).".
24 Heading to Division 6 of Part 2 inserted
Before section 21A of the Principal Act insert—
"Division 6—Revocation and suspension of
assessment notices".
s. 24
-- 28 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
26
Authorised by the Chief Parliamentary Counsel
25 Suspension and revocation powers on failure to
provide information
(1) In the heading to section 21A of the Principal Act,
for "Suspension and revocation" substitute
"Revocation".
(2) In section 21A(1) of the Principal Act, for
"section 11(1)(d) (as applied by section 21) the
Secretary may suspend" substitute "section
21AA(1)(c), the Secretary may revoke".
(3) In section 21A(2) of the Principal Act—
(a) for "intention to suspend" substitute
"intention to revoke"; and
(b) for "suspends" substitute "revokes".
(4) Section 21A(3), (4), (5), (6) and (7) of the
Principal Act are repealed.
(5) In section 21A(8) and (9) of the Principal Act, for
"subsection (7)" (wherever occurring) substitute
"subsection (1)".
26 Suspension powers on re-assessment—charge or
conviction of relevant offence
(1) In the heading to section 21B of the Principal Act,
omit "—charge or conviction of relevant
offence".
(2) In section 21B(1) of the Principal Act—
(a) after "Despite section 21(6)" insert
"and subject to subsection (1A)"; and
(b) after "has an assessment notice" insert
"has become subject to an obligation or order
specified in clause 1 of Schedule 3 or"; and
(c) for "a category 1 or category 2 offence"
substitute "an offence specified in clause 2
of Schedule 3"; and
s. 25
-- 29 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
27
Authorised by the Chief Parliamentary Counsel
(d) for "under section 21" substitute "under
Division 5".
(3) After section 21B(1) of the Principal Act insert—
"(1A) T he Secretary is not required to suspend a
person's assessment notice pending the
carrying out and completion of a re-assessment
of that person's eligibility to have an
assessment notice if—
(a) the person is being re-assessed because
the Secretary was notified of a charge
for an offence being finally dealt with;
and
(b) a re-assessment was carried out on the
Secretary being notified of the filing of
the charge-sheet containing the
charge.".
(4) In section 21B(2) of the Principal Act, for
"a relevant offence" substitute "an offence
specified in clause 2 of Schedule 3".
(5) After section 21B(5) of the Principal Act insert—
"(6) If the Secretary—
(a) has notified a person or agency under
subsection (5) that a person's
assessment notice has been suspended;
and
(b) finally determines not to revoke that
assessment notice—
the Secretary must give notice in writing to
that person or that agency of the
determination not to revoke the assessment
notice.".
s. 26
-- 30 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
28
Authorised by the Chief Parliamentary Counsel
27 New section 21C inserted
After section 21B of the Principal Act insert—
"21C Revocation of assessment notice and
surrender of document
(1) The Secretary may revoke an assessment
notice following a re-assessment under
Division 5 of the holder's eligibility to have
the notice.
(2) If the Secretary revokes an assessment notice
under this section, the Secretary must give a
negative notice to the former holder of the
assessment notice.
(3) If the Secretary gives a negative notice under
subsection (2), the Secretary must give to the
holder with that notice a written notice
that—
(a) states the reasons for the decision to
revoke the holder's assessment notice;
and
(b) informs the holder that he or she may
apply to VCAT to have the decision
reviewed or, in the case of a category A
re-assessment, to have VCAT consider
whether an assessment notice is to be
given; and
(c) explains how an application may be
made to VCAT.
(4) The Secretary may give a notice to a person
whose assessment notice is revoked or has
expired requiring him or her to surrender to
the Secretary in the manner specified in the
notice and within the period for doing so
specified in the notice—
(a) the assessment notice document; or
s. 27
-- 31 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
29
Authorised by the Chief Parliamentary Counsel
(b) a document in the prescribed form
evidencing the giving of the assessment
notice.
(5) A person must not, without reasonable
excuse, refuse or fail to surrender a
document as required by a notice given by
the Secretary under subsection (4).
Penalty: Level 9 fine (60 penalty units
maximum).
(6) If the Secretary—
(a) gives a notice under subsection (4)
consequent on the expiry of an
assessment notice; and
(b) is aware that the former holder of the
notice is a person who—
(i) is, or is proposed to be, engaged in
child-related work by another
person; or
(ii) is listed with an agency—
the Secretary, if he or she is aware of the
identity of that other person or that agency,
must notify that other person or that agency
in writing of the expiry.
Note
Listed with an agency is defined in section 3(2).
Division 7—General".
28 Revocation of assessment notice and surrender of
document
Section 23 of the Principal Act is repealed.
s. 28
-- 32 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
30
Authorised by the Chief Parliamentary Counsel
29 Section 26 substituted and sections 26A to 26C
inserted
For section 26 of the Principal Act substitute—
"26 Jurisdiction of VCAT—general
(1) Subject to subsections (2) and (3), a person
who has been given a negative notice—
(a) on a category A application on the
ground that he or she is a person
referred to in paragraph (a), (b) or (c) of
section 12(1); or
(b) on a category B application or a
category C application; or
(c) because of a decision of the Secretary
under section 21C(1) to revoke an
assessment notice following a
category A re-assessment required
because of circumstances referred to in
paragraph (a), (b) or (c) of section
21AB(1); or
(d) because of a decision of the Secretary
under section 21C(1) to revoke an
assessment notice following a
category B re-assessment or a
category C re-assessment—
may apply to VCAT for review of the
decision to give the negative notice.
(2) A person who is given a negative notice in
the circumstances described in subsection
(1)(a) may only apply for review on the
ground that he or she is not such a person.
(3) A person who is given a negative notice in
the circumstances described in subsection
(1)(c) may only apply for review on the
ground that that the circumstances referred to
s. 29
-- 33 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
31
Authorised by the Chief Parliamentary Counsel
in paragraph (a), (b) or (c) of section
21AB(1) did not occur.
(4) An application for review under subsection
(1) must be made within 28 days after the
later of—
(a) the day on which the decision of the
Secretary to give the negative notice is
made; and
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998,
the person requests a statement of
reasons for the decision, the day on
which the statement of reasons is given
to the person or the person is informed
under section 46(5) of that Act that a
statement of reasons will not be given.
Note
VCAT may, on an application under subsection (1), affirm
the decision to give a negative notice or set that decision
aside and either give an assessment notice or send the matter
back to the Secretary for re-consideration (see section 51 of
the Victorian Civil and Administrative Tribunal Act
1998).
26A Jurisdiction of VCAT—category A
(1) A person who has been given a negative
notice—
(a) on a category A application (other than
a person referred to in paragraph (a),
(b) or (c) of section 12(1)); or
(b) because of a decision of the Secretary
under section 21C(1) to revoke an
assessment notice following a
category A re-assessment (other than
on the ground that the circumstances
that required the re-assessment are
s. 29
-- 34 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
32
Authorised by the Chief Parliamentary Counsel
those referred to in paragraph (a), (b)
or (c) of section 21AB(1))—
may apply to VCAT for an assessment notice
to be given to him or her.
(2) Pending the final determination of an
application under subsection (1), VCAT
may—
(a) make an order staying the operation of
the Secretary's decision; and
(b) make any other order it considers
appropriate having regard to the matters
set out in subsection (3).
(3) VCAT must not make an order for the giving
of an assessment notice on an application
under subsection (1) unless it is satisfied that
giving the notice would not pose an
unjustifiable risk to the safety of children,
having regard to—
(a) the nature and gravity of the offence
and its relevance to child-related work;
and
(b) the period of time since the applicant
committed the offence; and
(c) whether a finding of guilt or a
conviction was recorded for the offence
or a charge for the offence is still
pending; and
(d) the sentence imposed for the offence;
and
(e) the ages of the applicant and of any
victim at the time the applicant
committed the offence; and
s. 29
-- 35 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
33
Authorised by the Chief Parliamentary Counsel
(f) whether or not the conduct that
constituted the offence has been
decriminalised since the applicant
engaged in it; and
(g) the applicant's behaviour since he or
she committed the offence; and
(h) the likelihood of future threat to a child
caused by the applicant; and
(i) any information given by the applicant
in, or in relation to, the application; and
(j) any other matter that VCAT considers
relevant to the application.
(4) For the purposes of subsection (3), in
satisfying itself that giving an assessment
notice would not pose an unjustifiable risk to
the safety of children, VCAT must be
satisfied that—
(a) a reasonable person would allow his or
her child to have direct contact with the
applicant that was not directly
supervised by another person while the
applicant was engaged in any type of
child-related work; and
(b) the applicant's engagement in any type
of child-related work would not pose an
unjustifiable risk to the safety of
children.
(5) If, in accordance with this section, VCAT is
satisfied that giving an assessment notice
would not pose an unjustifiable risk to the
safety of children, VCAT may by order
direct the Secretary to give the assessment
notice to the applicant if it is satisfied that, in
all the circumstances, it is in the public
interest to do so.
s. 29
-- 36 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
34
Authorised by the Chief Parliamentary Counsel
(6) The Secretary must comply with an order
made by VCAT under subsection (5).
(7) An application under subsection (1) must be
made within 28 days after the later of—
(a) the day on which the decision of the
Secretary to give the negative notice is
made; and
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998,
the person requests a statement of
reasons for the decision, the day on
which the statement of reasons is given
to the person or the person is informed
under section 46(5) of that Act that a
statement of reasons will not be given.
26B Jurisdiction of VCAT—category B
(1) In a review of a decision to give a negative
notice on a category B application or in
relation to a category B re-assessment,
VCAT must determine that it is appropriate
to refuse to give an assessment notice unless
satisfied that giving the assessment notice
would not pose an unjustifiable risk to the
safety of children, having regard to any
matters to which the Secretary must have
regard under section 13(2).
(2) In satisfying itself that giving an assessment
notice would not pose an unjustifiable risk to
the safety of children, VCAT must be
satisfied that—
(a) a reasonable person would allow his or
her child to have direct contact with the
applicant that was not directly
supervised by another person while the
applicant was engaged in any type of
child-related work; and
s. 29
-- 37 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
35
Authorised by the Chief Parliamentary Counsel
(b) the applicant's engagement in any type
of child-related work would not pose an
unjustifiable risk to the safety of
children.
(3) Even if VCAT is satisfied under subsections
(1) and (2) that giving an assessment notice
would not pose an unjustifiable risk to the
safety of children, VCAT must determine
that it is appropriate to refuse to give the
assessment notice unless it is satisfied that it
is in the public interest to give the
assessment notice.
26C Jurisdiction of VCAT—category C
(1) In a review of a decision to give a negative
notice on a category C application or in
relation to a category C re-assessment,
VCAT must determine whether in the
particular circumstances it would be
appropriate to refuse to give an assessment
notice, having regard to any matters to which
the Secretary must have regard under
section 14(3).
(2) VCAT must determine that it is appropriate
to refuse to give an assessment notice unless
VCAT is satisfied that—
(a) a reasonable person would allow his or
her child to have direct contact with the
applicant that was not directly
supervised by another person while the
applicant was engaged in any type of
child-related work; or
(b) the applicant's engagement in any type
of child-related work would not pose an
unjustifiable risk to the safety of
children.
s. 29
-- 38 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
36
Authorised by the Chief Parliamentary Counsel
(3) Even if VCAT does not determine under
subsection (1) or (2) that it would be
appropriate to refuse to give an assessment
notice, VCAT must determine that it is
appropriate to refuse to give the assessment
notice unless it is satisfied that it is in the
public interest to give the assessment
notice.".
30 Section 32 substituted
For section 32 of the Principal Act substitute—
"32 Visiting workers
(1) A person who is not ordinarily resident in
Victoria is exempt from a working with
children check in respect of child-related
work in which he or she engages in Victoria
if—
(a) the period during which the person
engages in that work is not more than
30 days; and
(b) the person does not engage in any other
child-related work in Victoria within
the same calendar year.
(2) A person who is not ordinarily resident in
Victoria is exempt from a working with
children check in respect of child-related
work in which he or she engages in Victoria
if—
(a) the person holds the equivalent of an
assessment notice given under the
provisions of the laws of the Australian
jurisdiction in which the person is
ordinarily resident; and
s. 30
-- 39 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
37
Authorised by the Chief Parliamentary Counsel
(b) the person engages in not more than
30 days of child-related work in
Victoria within the same calendar
year.".
31 Section 32A substituted
(1) For section 32A of the Principal Act substitute—
"32A Exemptions subject to negative notice
A person is not exempt under this Part from
a working with children check if the person
has been given a negative notice and has not
subsequently been given an assessment
notice.".
(2) The note at the foot of section 32A of the
Principal Act is repealed.
32 Section 32B repealed
Section 32B of the Principal Act is repealed.
33 Engaging in child-related work without an
assessment notice
(1) For the note at the foot of section 33(1) of the
Principal Act substitute—
"Note
See section 9(1) for the meaning of child-related work.".
(2) Section 33(2)(a)(ia) of the Principal Act is
repealed.
(3) For section 33(2)(a)(ii) of the Principal Act
substitute—
"(ii) was not subject to an obligation or order
specified in clause 1 of Schedule 3; and
(iii) was not charged with or had not been
convicted or found guilty of an offence
specified in clause 2 of Schedule 3; or".
s. 31
-- 40 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
38
Authorised by the Chief Parliamentary Counsel
(4) For section 33(2)(b)(ii) of the Principal Act
substitute—
"(ii) was not subject to an obligation or order
specified in clause 1 of Schedule 3; or".
(5) In section 33(2A)(a) of the Principal Act, for
"section 26(1)" substitute "section 26A(1)".
(6) For section 33(2A)(b) of the Principal Act
substitute—
"(b) under section 26(1) for review of a decision
of the Secretary to give him or her a negative
notice—".
34 Offence for holder of negative notice to apply for
child-related work
(1) In section 34(2A)(a) of the Principal Act, for
"section 26(1)" substitute "section 26A(1)".
(2) For section 34(2A)(b) of the Principal Act
substitute—
"(b) under section 26(1) for review of a decision
of the Secretary to give him or her a negative
notice—".
(3) For section 34(3) of the Principal Act
substitute—
'(3) For the purposes of this section, the
definition of child-related work in section 9
applies as if the words "and that contact is
not directly supervised by another person"
did not appear in subsection (1) of that
section.'.
s. 34
-- 41 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
39
Authorised by the Chief Parliamentary Counsel
35 Offence to engage in child-related work a person
who does not have an assessment notice
(1) For the note at the foot of section 35(1) of the
Principal Act substitute—
"Note
See section 9(1) for the meaning of child-related work.".
(2) For section 35(2)(a) of the Principal Act
substitute—
"(a) the worker had applied for a working with
children check and the application had not
been finally decided or withdrawn; or".
(3) After section 35(2) of the Principal Act insert—
"(2A) The accused may not rely on the defence set
out in subsection (2)(a) if, at the time the
offence is alleged to have been committed,
the accused—
(a) knew or ought reasonably to have
known that the worker was subject to
an obligation or order specified in
clause 1 of Schedule 3; or
(b) knew or ought reasonably to have
known that the worker had been
charged with or convicted or found
guilty of an offence specified in
clause 2 of Schedule 3.".
(4) In section 35(3A)(a) of the Principal Act, for
"section 26(1)" substitute "section 26A(1)".
(5) For section 35(3A)(b) of the Principal Act
substitute—
"(b) under section 26(1) for review of a decision of
the Secretary to give him or her a negative
notice—".
s. 35
-- 42 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
40
Authorised by the Chief Parliamentary Counsel
36 Offence for agency to offer the services of a person
who does not have an assessment notice
(1) For the note at the foot of section 36(1) of the
Principal Act substitute—
"Note
See section 9(1) for the meaning of child-related work.".
(2) For section 36(2)(a) of the Principal Act
substitute—
"(a) the worker had applied for a working with
children check and the application had not
been finally decided or withdrawn; or".
(3) After section 36(2) of the Principal Act insert—
"(2AA) The accused may not rely on the defence set
out in subsection (2)(a) if, at the time the
offence is alleged to have been committed,
the accused—
(a) knew or ought reasonably to have
known that the worker was subject to
an obligation or order specified in
clause 1 of Schedule 3; or
(b) knew or ought reasonably to have
known that the worker had been
charged with or convicted or found
guilty of an offence specified in
clause 2 of Schedule 3.".
(4) In section 36(2A)(a) of the Principal Act, for
"section 26(1)" substitute "section 26A(1)".
(5) For section 36(2A)(b) of the Principal Act
substitute—
"(b) under section 26(1) for review of a decision
of the Secretary to give him or her a negative
notice—".
s. 36
-- 43 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
41
Authorised by the Chief Parliamentary Counsel
37 Using volunteer assessment notice for paid work
For the note at the foot of section 37(1) of the
Principal Act substitute—
"Note
See section 9(1) for the meaning of child-related work.".
38 False or misleading information
In section 39(1) of the Principal Act, for
"section 21" substitute "Division 5 of Part 2".
39 Confidentiality of information
In section 40(1)(b) of the Principal Act,
for "23(5)" substitute "21C(6)".
40 Duty on police to notify Secretary of certain matters
(1) For section 41(1) of the Principal Act
substitute—
"(1) The Chief Commissioner of Police must take
all reasonable steps to ensure that the
Secretary is notified as soon as practicable
after the Chief Commissioner becomes
aware that a person to whom an assessment
notice has been given or who has applied for
a working with children check has been
charged with a category A offence or a
category B offence or any other offence of a
type of which the Secretary has requested to
be notified by the Chief Commissioner.".
(2) For section 41(2) of the Principal Act
substitute—
"(2) The Chief Commissioner of Police must take
all reasonable steps to ensure that the Secretary
is notified as soon as practicable of how a
charge for a category A offence, a category B
offence or an offence of a type of which the
Secretary has requested to be notified against
a person who has a current assessment notice
s. 37
-- 44 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
42
Authorised by the Chief Parliamentary Counsel
or who has applied for a working with
children check has been finally dealt with.".
41 New section 42A inserted
After section 42 of the Principal Act insert—
"42A Secretary may request information during
review
If a person who has been refused an
assessment notice or been given a negative
notice makes an application under
section 26(1) or 26A(1), the Secretary,
pending the final determination of that
application and for the purposes of assisting
VCAT in relation to the application, may
make enquires to, or seek information from,
any person or source that the Secretary
thinks fit, including the Director of Public
Prosecutions and any employee within the
meaning of the Public Administration Act
2004.".
42 New section 53 inserted
After section 52 of the Principal Act insert—
"53 Transitional provision—Working with
Children Amendment (Ministers of
Religion and Other Matters) Act 2014
Despite the amendments made by the
Working with Children Amendment
(Ministers of Religion and Other Matters)
Act 2014, this Act and the Victorian Civil
and Administrative Tribunal Act 1998 as
in force immediately before the
commencement of Parts 2 and 3 of that 2014
Act continue to apply to—
(a) any application under section 10
or 19(2) for an assessment notice
made before that commencement that
s. 41
-- 45 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
43
Authorised by the Chief Parliamentary Counsel
is not finally determined before that
commencement; and
(b) any re-assessment of a person's
eligibility to have an assessment notice
if the Secretary receives the notification
referred to in section 21(1) requiring
the re-assessment before that
commencement; and
(c) applications to VCAT if the application
was made before that commencement;
and
(d) proceedings in VCAT if the application
to VCAT for those proceedings was
made before the commencement of that
Part.".
43 New Schedules 1 to 3 inserted
After Part 6 of the Principal Act insert—
"__________________
SCHEDULES
SCHEDULE 1
Section 3(1)
CATEGORY A OFFENCES
1 An offence (other than a child pornography
offence, a carnal knowledge offence or an offence
specified in clause 4, 5, 6, 7, 8 or 9) specified in
clause 1 of Schedule 1 to the Sentencing Act
1991 (sexual offences) in circumstances where the
person against whom the offence is committed is a
child.
2 A child pornography offence.
s. 43
-- 46 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
44
Authorised by the Chief Parliamentary Counsel
3 An offence specified in clause 2(a) of Schedule 1
to the Sentencing Act 1991 (murder).
4 The common law offence of rape.
5 An offence against section 38 of the Crimes Act
1958 (rape).
6 An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of
the following provisions (as amended) inserted in
the Crimes Act 1958 on 5 August 1991 by
section 3 of the Crimes (Sexual Offences) Act
1991 and repealed on 1 January 1992 by section 3
of the Crimes (Rape) Act 1991—
(a) section 40 (rape);
(b) section 41 (rape with aggravating
circumstances).
7 An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of
the following provisions (as amended) inserted in
the Crimes Act 1958 on 1 March 1981 by
section 5 of the Crimes (Sexual Offences) Act
1980 and repealed on 5 August 1991 by section 3
of the Crimes (Sexual Offences) Act 1991—
(a) section 45(1) (rape);
(b) section 45(3) (rape with aggravating
circumstances).
8 An offence against, or for which the penalty or the
maximum or minimum penalty is fixed by, any of
the following provisions (as amended) of the
Crimes Act 1958 repealed on 1 March 1981 by
section 5 of the Crimes (Sexual Offences) Act
1980—
(a) section 44(1) (rape);
(b) section 44(2) (rape with mitigating
circumstances).
s. 43
-- 47 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
45
Authorised by the Chief Parliamentary Counsel
9 An offence of attempting to commit an offence
specified in clause 3, 4, 5, 6, 7 or 8.
__________________
SCHEDULE 2
Section 3(1)
CATEGORY B OFFENCES
1 An offence (other than a child pornography
offence, a carnal knowledge offence or an offence
specified in clause 4, 5, 6, 7, 8 or 9 of Schedule 1)
specified in clause 1 of Schedule 1 to the
Sentencing Act 1991 (sexual offences) in
circumstances where the person against whom the
offence is committed is not a child.
2 A carnal knowledge offence.
3 An offence specified in clause 2 of Schedule 1 to
the Sentencing Act 1991 (violent offences) other
than murder or attempted murder.
4 An offence specified in clause 4 of Schedule 1 to
the Sentencing Act 1991 (drug offences).
5 An offence against section 71AB (trafficking in a
drug of dependence to a child) or 71B (supply of a
drug of dependence to a child) of the Drugs,
Poisons and Controlled Substances Act 1981 or
an offence under a law of a jurisdiction other than
Victoria that, if it had been committed in Victoria,
would have constituted an offence against
section 71AB or 71B of that Act.
6 An offence—
(a) against section 46 or 47 of the Sex
Offenders Registration Act 2004 or against
Part 5 of that Act (other than section 70); or
s. 43
-- 48 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
46
Authorised by the Chief Parliamentary Counsel
(b) against the Serious Sex Offenders
Monitoring Act 2005 (other than
section 42(3)); or
(c) against the Serious Sex Offenders
(Detention and Supervision) Act 2009
(other than section 182 or 186); or
(d) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria, would have constituted an offence
against section 46 or 47 of the Sex
Offenders Registration Act 2004 or against
Part 5 of that Act (other than section 70) or
against the Serious Sex Offenders
Monitoring Act 2005 (other than
section 42(3)) or against the Serious Sex
Offenders (Detention and Supervision)
Act 2009 (other than section 182 or 186).
7 An offence against section 271.4 (trafficking in
children) or 271.7 (domestic trafficking in
children) of the Criminal Code of the
Commonwealth other than in circumstances where
the purpose of the exploitation is to provide sexual
services within the meaning of that section.
8 An offence against section 21A of the Crimes Act
1958 or an offence under a law of a jurisdiction
other than Victoria that, if it had been committed
in Victoria, would have constituted an offence
against section 21A of that Act, in circumstances
where the person against whom the offence is
committed is a child.
9 An offence against section 60B of the Crimes Act
1958 or an offence under a law of a jurisdiction
other than Victoria that, if it had been committed
in Victoria, would have constituted an offence
against section 60B of that Act.
s. 43
-- 49 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
47
Authorised by the Chief Parliamentary Counsel
10 An offence against Part 4 of this Act (other than
section 37 or 40).
11 An offence—
(a) against section 18 of the Crimes Act 1958;
or
(b) against section 19 or 37 of the Crimes Act
1958 if the offence was committed before the
commencement of the Crimes
(Amendment) Act 1985; or
(c) an offence under a law of a jurisdiction other
than Victoria that, if it had been committed
in Victoria, would have constituted an
offence against section 18 of the Crimes Act
1958; or
(d) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria before the commencement of the
Crimes (Amendment) Act 1985, would
have constituted an offence against
section 19 or 37 of the Crimes Act 1958.
12 An offence—
(a) against section 19 of the Summary Offences
Act 1966; or
(b) against section 17(1) of the Summary
Offences Act 1966 constituted by indecent
behaviour if the offence was committed
before the commencement of the Vagrancy
(Repeal) and Summary Offences
(Amendment) Act 2005; or
(c) against section 7(1)(c) of the Vagrancy Act
1966 if the offence was committed before the
commencement of the Vagrancy (Repeal)
and Summary Offences (Amendment) Act
2005; or
s. 43
-- 50 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
48
Authorised by the Chief Parliamentary Counsel
(d) under a law of a jurisdiction other than
Victoria that, if committed in Victoria,
would constitute an offence against
section 19 of the Summary Offences Act
1966; or
(e) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria before the commencement of the
Vagrancy (Repeal) and Summary
Offences (Amendment) Act 2005, would
have constituted an offence against
section 17(1) of the Summary Offences Act
1966 constituted by indecent behaviour; or
(f) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria before the commencement of the
Vagrancy (Repeal) and Summary
Offences (Amendment) Act 2005, would
have constituted an offence against
section 7(1)(c) of the Vagrancy Act 1966.
13 An offence—
(a) against any of the following sections of the
Crimes Act 1958—
(i) section 63 (child stealing);
(ii) section 75A (armed robbery); or
(b) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria, would have constituted an offence
against a section of the Crimes Act 1958
specified in paragraph (a).
14 An offence against Division 4A of Part I of the
Summary Offences Act 1966 (upskirting
offences) or an offence under a law of a
jurisdiction other than Victoria that, if it had been
committed in Victoria, would have constituted an
offence against that Division.
s. 43
-- 51 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
49
Authorised by the Chief Parliamentary Counsel
15 An offence—
(a) against any of the following sections of the
Children, Youth and Families Act 2005—
(i) section 493 (failing to protect a child
from harm);
(ii) section 494 (leaving a child
unattended); or
(b) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria, would have constituted an offence
against a section of the Children, Youth
and Families Act 2005 specified in
paragraph (a).
16 An offence—
(a) against the following sections of the
Surveillance Devices Act 1999—
(i) section 7 (installing, using or
maintaining a device to record or
observe a private activity);
(ii) section 9B (employer installing, using
or maintaining a device to record or
observe a private activity of a worker);
or
(b) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria, would have constituted an offence
against a section of the Surveillance Devices
Act 1999 specified in paragraph (a).
__________________
s. 43
-- 52 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
50
Authorised by the Chief Parliamentary Counsel
SCHEDULE 3
Sections 21B, 33, 35 and 36
OBLIGATIONS AND ORDERS AND OFFENCES
1 Obligations and orders
1.1 Reporting obligations imposed on a person by
Part 3 of the Sex Offenders Registration Act
2004.
1.2 An extended supervision order or interim
extended supervision order under the Serious Sex
Offenders Monitoring Act 2005.
1.3 A supervision order or a detention order.
2 Offences
2.1 An offence specified in clause 1 of Schedule 1 to
the Sentencing Act 1991 (sexual offences).
2.2 An offence specified in clause 2 of Schedule 1 to
the Sentencing Act 1991 (violent offences).
2.3 An offence specified in clause 4 of Schedule 1 to
the Sentencing Act 1991 (drug offences).
2.4 An offence—
(a) against section 71AB (trafficking in a drug
of dependence to a child) or 71B (supply of a
drug of dependence to a child) of the Drugs,
Poisons and Controlled Substances Act
1981; or
(b) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria, would have constituted an offence
against section 71AB or 71B of the Drugs,
Poisons and Controlled Substances Act
1981.
s. 43
-- 53 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
51
Authorised by the Chief Parliamentary Counsel
2.5 An offence—
(a) against section 46 or 47 of the Sex
Offenders Registration Act 2004 or against
Part 5 of that Act (other than section 70); or
(b) against the Serious Sex Offenders
Monitoring Act 2005 (other than
section 42(3)); or
(c) against the Serious Sex Offenders
(Detention and Supervision) Act 2009
(other than section 182 or 186); or
(d) under a law of a jurisdiction other than
Victoria that, if it had been committed in
Victoria, would have constituted an offence
against section 46 or 47 of the Sex
Offenders Registration Act 2004 or against
Part 5 of that Act (other than section 70) or
against the Serious Sex Offenders
Monitoring Act 2005 (other than
section 42(3)) or against the Serious Sex
Offenders (Detention and Supervision)
Act 2009 (other than section 182 or 186).
2.6 An offence against section 271.4 (trafficking in
children) or 271.7 (domestic trafficking in children)
of the Criminal Code of the Commonwealth other
than in circumstances where the purpose of the
exploitation is to provide sexual services within the
meaning of that section.
2.7 An offence against section 21A of the Crimes Act
1958 or an offence under a law of a jurisdiction
other than Victoria that, if it had been committed
in Victoria, would have constituted an offence
against section 21A of that Act, in circumstances
where—
(a) the person against whom the offence is
committed is a child; and
s. 43
-- 54 of 58 --
Part 2—Working with Children Act 2005 Amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
52
Authorised by the Chief Parliamentary Counsel
(b) the person committing the offence is an
adult.
2.8 An offence against section 60B of the Crimes Act
1958 or an offence under a law of a jurisdiction
other than Victoria that, if it had been committed
in Victoria, would have constituted an offence
against section 60B of that Act, in circumstances
where the person committing the offence is an
adult.".
__________________
s. 43
-- 55 of 58 --
Part 3—Victorian Civil and Administrative Tribunal Act 1998 amended
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
53
Authorised by the Chief Parliamentary Counsel
PART 3—VICTORIAN CIVIL AND ADMINISTRATIVE
TRIBUNAL ACT 1998 AMENDED
44 Review of category 2 application
Clause 102 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998 is
repealed.
45 Review of category 3 application
Clause 103 of Schedule 1 to the Victorian Civil
and Administrative Tribunal Act 1998 is
repealed.
__________________
s. 44
See:
Act No.
53/1998.
Reprint No. 9
as at
1 January
2014
and
amending
Act Nos
11/2010,
67/2013,
1/2014,
17/2014,
23/2014,
37/2014 and
42/2014.
LawToday:
www.
legislation.
vic.gov.au
-- 56 of 58 --
Part 4—Repeal of Amending Act
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
54
Authorised by the Chief Parliamentary Counsel
PART 4—REPEAL OF AMENDING ACT
46 Repeal of amending Act
This Act is repealed on 1 June 2016.
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).
═══════════════
s. 46
-- 57 of 58 --
Working with Children Amendment (Ministers of Religion and Other
Matters) Act 2014
No. 66 of 2014
55
Authorised by the Chief Parliamentary Counsel
ENDNOTES
† Minister's second reading speech—
Legislative Council: 26 June 2014
Legislative Assembly: 7 August 2014
The long title for the Bill for this Act was "A Bill for an Act to amend the
Working with Children Act 2005 and the Victorian Civil and
Administrative Tribunal Act 1998 and for other purposes."
Endnotes
-- 58 of 58 --