Working with Children Amendment Act 2012

Authorised by the Chief Parliamentary Counsel Authorised Version i Working with Children Amendment Act 2012 No. 61 of 2012 TABLE OF PROVISIONS Section Page PART 1—PRELIMINARY 1 1 Purposes 1 2 Commencement 3 PART 2—WORKING WITH CHILDREN ACT 2005 4 3 Category 1 application 4 4 Category 2 application 4 5 Category 3 application 5 6 Outcome of application 7 7 New section 19B inserted 8 19B Further application by holder of current volunteer assessment notice 8 8 Re-assessment 9 9 Suspension powers on reassessment 9 10 New section 21B inserted 10 21B Suspension powers on re-assessment—charge or conviction of relevant offence 10 11 Revocation of assessment notice and surrender of document 12 12 Jurisdiction of VCAT 12 13 Accredited drivers—initial arrangements 13 14 Engaging in child-related work without an assessment notice 14 15 Offence to engage in child-related work a person who does not have an assessment notice 14 16 Offence for agency to offer the services of a person who does not have an assessment notice 14 PART 3—VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 15 17 Review of category 2 application 15 102 Review of category 2 application 15 18 Review of category 3 application 16 103 Review of category 3 application 16 -- 1 of 22 -- Section Page ii Authorised by the Chief Parliamentary Counsel PART 4—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS 18 19 Working with children check exemption notice 18 20 When licensing authority must notify that working with children check exemption notice has ceased to have effect 18 PART 5—REPEAL OF AMENDING ACT 19 21 Repeal of amending Act 19 ═══════════════ ENDNOTES 20 -- 2 of 22 -- Authorised by the Chief Parliamentary Counsel Authorised Version 1 Working with Children Amendment Act 2012 † No. 61 of 2012 [Assented to 23 October 2012] 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 to— (i) strengthen the tests that must be satisfied before an assessment notice may be given; (ii) make murder a category 1 offence; Victoria -- 3 of 22 -- Part 1—Preliminary Working with Children Amendment Act 2012 No. 61 of 2012 2 Authorised by the Chief Parliamentary Counsel (iii) increase the range of offences to be considered when assessing a person's eligibility for an assessment notice; (iv) ensure that, in relation to a re-assessment of a person's eligibility, the categorisation of the matter is not determined by the offence considered in the earlier determination of eligibility; (v) increase the range of circumstances in which the Secretary may suspend an assessment notice or revoke a suspended assessment notice; (vi) clarify provisions relating to applications to VCAT by persons subject to supervision or detention orders under the Serious Sex Offenders (Detention and Supervision) Act 2009; (vii) prevent a person working with children while his or her application for an assessment notice is being determined if the application is a category 1 or 2 application; (b) to amend the Victorian Civil and Administrative Tribunal Act 1998 to strengthen the tests that must be satisfied before an assessment notice may be given under the Working with Children Act 2005; (c) to make consequential amendments to the Transport (Compliance and Miscellaneous) Act 1983. s. 1 -- 4 of 22 -- Part 1—Preliminary Working with Children Amendment Act 2012 No. 61 of 2012 3 Authorised by the Chief Parliamentary Counsel 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 31 December 2012, it comes into operation on that day. __________________ s. 2 -- 5 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 4 Authorised by the Chief Parliamentary Counsel PART 2—WORKING WITH CHILDREN ACT 2005 3 Category 1 application (1) In section 12(1)(d) of the Working with Children Act 2005, for "offence." substitute "offence; or". (2) After section 12(1)(d) of the Working with Children Act 2005, insert— "(e) who has at any time (whether before, on or after the commencement of the Working with Children Amendment Act 2012) been convicted or found guilty of an offence specified in clause 2(a) of Schedule 1 to the Sentencing Act 1991 (murder).". 4 Category 2 application (1) In section 13(1)(b) of the Working with Children Act 2005, after "(violent offences" insert "other than murder". (2) In section 13(1)(g) of the Working with Children Act 2005, for "clause 1" substitute "clause 1 or 2(a)". (3) After section 13(2) of the Working with Children Act 2005, insert— "(3) In satisfying himself or herself that giving 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 applicant that was not directly supervised by another person while the applicant was engaged in any type of child-related work; and s. 3 See: Act No. 57/2005. Reprint No. 3 as at 1 August 2011 and amending Act Nos 51/2010, 34/2011, 65/2011 and 80/2011. LawToday: www. legislation. vic.gov.au -- 6 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 5 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.". 5 Category 3 application (1) For section 14(1)(ba) of the Working with Children Act 2005, substitute— "(ba) who has at any time (whether before, on or after the commencement of the Working with Children Amendment Act 2012) been convicted or found guilty of— (i) an offence against section 18 of the Crimes Act 1958; or (ii) an offence 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 (iii) 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 (iv) an offence 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; or". s. 5 -- 7 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 6 Authorised by the Chief Parliamentary Counsel (2) For section 14(1)(bb) of the Working with Children Act 2005, substitute— "(bb) who has at any time (whether before, on or after the commencement of the Working with Children Amendment Act 2012) been convicted or found guilty of— (i) an offence against section 19 of the Summary Offences Act 1966; or (ii) an offence 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 (iii) an offence 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 (iv) an offence 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 (v) an offence 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 s. 5 -- 8 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 7 Authorised by the Chief Parliamentary Counsel (vi) an offence 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; or". (3) After section 14(2) of the Working with Children Act 2005, insert— "(2A) The Secretary must determine that it is appropriate to refuse to give an assessment notice on a category 3 application unless the Secretary 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; and (b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.". (4) In section 14(3) of the Working with Children Act 2005, for "In considering whether" substitute "Subject to subsection (2A), in considering whether". 6 Outcome of application (1) After section 17(1A) of the Working with Children Act 2005, insert— "(1AB) The Secretary must determine that it is appropriate to refuse to give an assessment notice in the circumstances referred to in s. 6 -- 9 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 8 Authorised by the Chief Parliamentary Counsel subsection (1A) unless the Secretary 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; and (b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children.". (2) In section 17(1B) of the Working with Children Act 2005, for "In considering whether" substitute "Subject to subsection (1AB), in considering whether". 7 New section 19B inserted After section 19A of the Working with Children Act 2005, insert— "19B Further application by holder of current volunteer assessment notice (1) If— (a) a person who has a current volunteer assessment notice applies for the carrying out of a working with children check; and (b) the application specifies that the child- related work that the person engages in or intends to engage in is for profit or gain; and s. 7 -- 10 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 9 Authorised by the Chief Parliamentary Counsel (c) the Secretary has not been notified of any relevant change in circumstances under section 20(2)— the Secretary may consider the application without having regard to any offence or conduct that was considered by the Secretary in relation to the giving of the current volunteer assessment notice. (2) In this section, volunteer assessment notice means an assessment notice, the application for which does not specify that the child- related work that the applicant engages in or intends to engage in is for profit or gain.". 8 Re-assessment After section 21(3) of the Working with Children Act 2005, insert— "(3A) Sections 12 to 14 apply to a re-assessment as if the circumstances described in subsection (1) that give rise to the re-assessment are the circumstances that determine whether an application is to be treated as a category 1, category 2 or category 3 application. (3B) The Secretary may re-assess a person's eligibility to have an assessment notice under this section having regard to any offence or conduct that was considered by the Secretary in relation to the giving of the current assessment notice.". 9 Suspension powers on reassessment (1) For the heading to section 21A of the Working with Children Act 2005, substitute— "Suspension and revocation powers on failure to provide information". s. 8 -- 11 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 10 Authorised by the Chief Parliamentary Counsel (2) After section 21A(6) of the Working with Children Act 2005, insert— "(7) If, on the expiry of the period of the suspension of the assessment notice, the Secretary has not received the information required, the Secretary may revoke the assessment notice. (8) The Secretary must notify the person whose assessment notice has been revoked under subsection (7) as soon as possible after the revocation of the notice. (9) If the Secretary is aware that the person whose assessment notice has been revoked under subsection (7) is a person who— (a) is, or is proposed to be, engaged in child-related work by another person; or (b) 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 the person or agency in writing of the revocation of the person's assessment notice. (10) Nothing in this section prevents the former holder of an assessment notice applying for another assessment notice under this Act.". 10 New section 21B inserted After section 21A of the Working with Children Act 2005, insert— "21B Suspension powers on re-assessment— charge or conviction of relevant offence (1) Despite section 21(6), if the Secretary becomes aware that a person who has an assessment notice has been charged with or s. 10 -- 12 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 11 Authorised by the Chief Parliamentary Counsel been convicted or found guilty of a category 1 or category 2 offence, the Secretary must suspend the person's assessment notice in accordance with this section pending the carrying out and completion of a re-assessment under section 21. (2) If the person is being re-assessed because the Secretary was notified that the person has been charged with a relevant offence, the Secretary may reinstate that person's assessment notice if, after the suspension of the notice— (a) the charge against the person is withdrawn; or (b) the charge is dismissed by a court; or (c) the person is acquitted of the offence by a court. (3) A person whose assessment notice has been suspended is to be treated for the purposes of this Act as not having a current assessment notice for the period of the suspension of his or her notice. (4) The Secretary must notify the person whose assessment notice has been suspended under this section as soon as possible after the suspension of the notice. (5) If the Secretary is aware that the person whose assessment notice has been suspended is a person who— (a) is, or is proposed to be, engaged in child-related work by another person; or s. 10 -- 13 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 12 Authorised by the Chief Parliamentary Counsel (b) 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 the person or agency in writing of the suspension of the person's notice.". 11 Revocation of assessment notice and surrender of document (1) After section 23(1) of the Working with Children Act 2005, insert— "(1AA) The Secretary must determine that it is appropriate to revoke an assessment notice in the circumstances referred to in subsection (1)(b) unless the Secretary is 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.". (2) In section 23(1A) of the Working with Children Act 2005, for "In considering whether" substitute "Subject to subsection (1AA), in considering whether". (3) In section 23(2) of the Working with Children Act 2005, after "an assessment notice" insert "under this section". 12 Jurisdiction of VCAT (1) In section 26(1) of the Working with Children Act 2005, for "(a) or (b)" substitute "(a), (b) or (ba)". s. 11 -- 14 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 13 Authorised by the Chief Parliamentary Counsel (2) After section 26(2) of the Working with Children Act 2005, insert— "(2A) 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.". (3) For section 26(3) of the Working with Children Act 2005, substitute— "(3) 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.". (4) In section 26(5)(a) of the Working with Children Act 2005, for "(a) or (b)" substitute "(a), (b) or (ba)". 13 Accredited drivers—initial arrangements After section 32A(1)(b) of the Working with Children Act 2005, insert— "(ba) the person is the holder of an assessment notice that has been suspended under this Act; or". s. 13 -- 15 of 22 -- Part 2—Working with Children Act 2005 Working with Children Amendment Act 2012 No. 61 of 2012 14 Authorised by the Chief Parliamentary Counsel 14 Engaging in child-related work without an assessment notice After section 33(2)(a)(i) of the Working with Children Act 2005, insert— "(ia) if the application was a category 1 or category 2 application, did not know that the application was a category 1 or category 2 application and it was not reasonable for him or her to have known that the application was a category 1 or category 2 application; and". 15 Offence to engage in child-related work a person who does not have an assessment notice In section 35(2)(a) of the Working with Children Act 2005, after "decided or withdrawn" insert ", unless the accused knew or ought reasonably to have known that the application was a category 1 or category 2 application". 16 Offence for agency to offer the services of a person who does not have an assessment notice In section 36(2)(a) of the Working with Children Act 2005, after "decided or withdrawn" insert ", unless the accused knew or ought reasonably to have known that the application was a category 1 or category 2 application". __________________ s. 14 -- 16 of 22 -- Part 3—Victorian Civil and Administrative Tribunal Act 1998 Working with Children Amendment Act 2012 No. 61 of 2012 15 Authorised by the Chief Parliamentary Counsel PART 3—VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL ACT 1998 17 Review of category 2 application For clause 102 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, substitute— "102 Review of category 2 application (1) If the proceeding relates to the giving of a negative notice on a category 2 application within the meaning of the Working with Children Act 2005, the Tribunal 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) of that Act. (2) In satisfying itself that giving an assessment notice would not pose an unjustifiable risk to the safety of children, the Tribunal 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. (3) Even if the Tribunal is satisfied under subclauses (1) and (2) that giving an assessment notice would not pose an unjustifiable risk to the safety of children, s. 17 See: Act No. 53/1998. Reprint No. 7 as at 1 January 2011 and amending Act Nos 11/2010, 16/2010, 74/2010 and 6/2012. LawToday: www. legislation. vic.gov.au -- 17 of 22 -- Part 3—Victorian Civil and Administrative Tribunal Act 1998 Working with Children Amendment Act 2012 No. 61 of 2012 16 Authorised by the Chief Parliamentary Counsel the Tribunal 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.". 18 Review of category 3 application For clause 103 of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, substitute— "103 Review of category 3 application (1) If the proceeding relates to the giving of a negative notice on a category 3 application within the meaning of the Working with Children Act 2005, the Tribunal 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) of that Act. (2) The Tribunal must determine that it is appropriate to refuse to give an assessment notice unless the Tribunal 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; and (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 the Tribunal does not determine under subclause (1) or (2) that it would be appropriate to refuse to give an assessment s. 18 -- 18 of 22 -- Part 3—Victorian Civil and Administrative Tribunal Act 1998 Working with Children Amendment Act 2012 No. 61 of 2012 17 Authorised by the Chief Parliamentary Counsel notice, the Tribunal 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.". __________________ s. 18 -- 19 of 22 -- Part 4—Miscellaneous and Consequential Amendments Working with Children Amendment Act 2012 No. 61 of 2012 18 Authorised by the Chief Parliamentary Counsel PART 4—MISCELLANEOUS AND CONSEQUENTIAL AMENDMENTS 19 Working with children check exemption notice After section 169DA(3)(b) of the Transport (Compliance and Miscellaneous) Act 1983, insert— "(ba) the person is the holder of an assessment notice under the Working with Children Act 2005 that has been suspended; or". 20 When licensing authority must notify that working with children check exemption notice has ceased to have effect (1) In section 169DB(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983, for "2005." substitute "2005; or". (2) After section 169DB(1)(b) of the Transport (Compliance and Miscellaneous) Act 1983, insert— "(c) the holder's assessment notice under the Working with Children Act 2005 is suspended.". __________________ s. 19 See: Act No. 9921. Reprint No. 16 as at 7 September 2011 and amending Act Nos 65/2010, 79/2010, 34/2011, 43/2011, 49/2011, 61/2011 and 65/2011. LawToday: www. legislation. vic.gov.au -- 20 of 22 -- Part 5—Repeal of Amending Act Working with Children Amendment Act 2012 No. 61 of 2012 19 Authorised by the Chief Parliamentary Counsel PART 5—REPEAL OF AMENDING ACT 21 Repeal of amending Act This Act is repealed on the first anniversary of its commencement. 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. 21 -- 21 of 22 -- Working with Children Amendment Act 2012 No. 61 of 2012 20 Authorised by the Chief Parliamentary Counsel ENDNOTES † Minister's second reading speech— Legislative Assembly: 24 May 2012 Legislative Council: 21 June 2012 The long title for the Bill for this Act was "A Bill for an Act to amend the Working with Children Act 2005 in relation to the giving, suspension, re-assessment and review of assessment notices, to amend the Victorian Civil and Administrative Tribunal Act 1998 and the Transport (Compliance and Miscellaneous) Act 1983 and for other purposes." Endnotes -- 22 of 22 --