Child Employment Amendment Act 2010

i Child Employment Amendment Act 2010 No. 26 of 2010 TABLE OF PROVISIONS Section Page 1 Purpose 1 2 Commencement 2 3 Principal Act 2 4 New section 1 substituted 2 1 Purposes 2 5 Definitions 4 6 New section 4 substituted 5 4 What is employment? 5 7 New section 5 substituted 8 5 What is light work? 8 8 Supervision in entertainment 9 9 New section 8 substituted 10 8 When may a child be employed? 10 10 Employment without a permit 10 11 New section 13 substituted 10 13 Application for a permit 10 12 New section 13A inserted 14 13A Multiple children or occasions of employment 14 13 Investigation of an application for a permit 15 14 Section 15 repealed 15 15 New section 16 substituted 15 16 Determining an application for a permit 15 16 New section 16A inserted 17 16A Supplementary permits 17 17 New section 18 substituted 19 18 Secretary may vary or cancel a permit 19 18 New sections 18A and 18B inserted 20 18A Variations that may be made to a permit 20 18B Record keeping by employers 21 19 New section 19 substituted 22 19 Supervision of children in employment 22 20 New Division 2A inserted in Part 2 24 Division 2A—Working with Children Act 2005 24 19A Application of Working with Children Act 2005 24 19B Exemptions from working with children check 27 21 Contravention of conditions 29 -- 1 of 45 -- Section Page ii 22 Entertainment permits 29 23 Restriction on certain activities 30 24 Restricted hours for certain activities 30 25 Functions of child employment officers 30 26 New section 38 substituted 30 38 Appointment of child employment officers 30 27 Powers on entry 31 28 New section 43A inserted 31 43A Power to give directions 31 29 New section 44 substituted 32 44 Power to require information or documents 32 30 Offences 32 31 Further protections 33 32 New sections 49A and 49B inserted 34 49A Who can prosecute under this Act? 34 49B Judicial notice of signatures 35 33 New sections 50A and 50B inserted 35 50A Offences by bodies corporate 35 50B Conduct by officers, employees or agents 36 34 Regulations 37 35 New sections 54 and 55 substituted for section 58 37 54 Existing permits and applications 37 55 Existing police checks and declarations 38 36 Amendments to the Working with Children Act 2005 41 37 Amendment to the Transport Accident Act 1986 42 38 Repeal of amending Act 42 ═══════════════ ENDNOTES 43 -- 2 of 45 -- 1 Child Employment Amendment Act 2010 † No. 26 of 2010 [Assented to 8 June 2010] The Parliament of Victoria enacts: 1 Purpose The main purpose of this Act is to amend the Child Employment Act 2003 to— (a) amend the definition of employment to ensure the focus of the Act is to protect children under the age of 15 years in employment and employment-like activities; Victoria -- 3 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 2 (b) improve the process of applying for and issuing permits; (c) apply provisions of the Working with Children Act 2005 to the supervision of children in employment under the Child Employment Act 2003; (d) make other changes to improve the operation of the Act. 2 Commencement (1) Subject to subsection (2), this Act comes into operation on a day or days to be proclaimed. (2) If a provision of this Act does not come into operation before 31 December 2010, it comes into operation on that day. 3 Principal Act In this Act, the Child Employment Act 2003 is called the Principal Act. 4 New section 1 substituted For section 1 of the Principal Act substitute— "1 Purposes The main purposes of this Act are to— (a) regulate the employment of children under the age of 15 years; (b) protect those children from performing work that could be harmful to their health or safety, their moral or material welfare or development or the attendance at school of those children s. 2 See: Act No. 81/2003. Reprint No. 1 as at 26/09/2007. LawToday: www. legislation. vic.gov.au -- 4 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 3 or their capacity to benefit from instruction; (c) provide a system of permits to allow the employment of children under the age of 15 years; (d) allow children under the age of 15 years to work in family businesses without a permit; (e) provide for the supervision of children in employment by persons with a current assessment notice under the Working with Children Act 2005; (f) set out general conditions of employment for children under the age of 15 years; (g) provide for a mandatory code of practice for the employment of children under the age of 15 years in the entertainment industry; (h) prohibit the employment of children under the age of 15 years in certain kinds of work; (i) empower the Governor in Council to declare kinds of employment prohibited for children under the age of 15 years; (j) set out offences; (k) provide for the appointment of child employment officers and the powers of those officers to ensure compliance with the Act.". s. 4 -- 5 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 4 5 Definitions (1) In section 3 of the Principal Act insert the following definitions— "assessment notice means an assessment notice given under the Working with Children Act 2005 to an applicant for a working with children check under Part 2 of that Act; guardian, in relation to a child, means a person who has been granted (whether alone or with another person or persons) guardianship of the child under the Children, Youth and Families Act 2005 or any other Act or law of a State or Territory or the Commonwealth; officer— (a) in relation to a body corporate that is a corporation within the meaning of the Corporations Act, has the same meaning as in section 9 of that Act; and (b) in relation to any other body corporate, means any person (by whatever name called) who is concerned or takes part in the management of the body corporate;". (2) In section 3 of the Principal Act, in the definition of door-to-door selling, after "purchaser" insert ", but does not include selling by the child of goods or services to raise funds for a non-profit organisation if the child is directly engaged by that organisation". (3) In section 3 of the Principal Act, in the definition of entertainment— (a) for paragraph (c) substitute— "(c) appearing in a radio, television, film or Internet program or production, or any similar program or production;"; s. 5 -- 6 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 5 (b) after paragraph (j) insert— "(k) preparatory activities to the entertainment except— (i) screen tests before the child is booked for the entertainment; and (ii) casting walk-ons; Examples Examples of preparatory activities include wardrobe fittings, rehearsals, shoots, promotional activities, sound recordings and re- shoots.". (4) In section 3 of the Principal Act, the definitions of declaration of suitability, extended family member and police check are repealed. 6 New section 4 substituted For section 4 of the Principal Act substitute— "4 What is employment? (1) For the purposes of this Act, a child is engaged in employment if the child performs work— (a) under a contract of service or a contract for services (whether written or unwritten); or (b) in a business, trade or occupation carried on for profit under any other arrangement whether or not the child receives payment or other reward for performing that work. (2) In determining whether a child is performing work under an arrangement referred to in subsection (1)(b), the factors that may be taken into account include— (a) whether the parties intend that the work would constitute employment; s. 6 -- 7 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 6 (b) whether the work would commonly attract payment; (c) whether the primary purpose of the child's work is for another person to derive a profit; (d) whether the child is subject to the direction of any person who will derive a profit from the child's work. (3) Employment does not include— (a) participating in a church or religious service or program; (b) participating in a project or entertainment the net proceeds of which are applied for the benefit of a church or other religious body or institution established for public worship; (c) participating in a project or entertainment for the benefit or as part of the activities of the school at which the child is enrolled if the child is under the direction or control of the school; (d) participating in an apprenticeship, a traineeship or practical training under the Education and Training Reform Act 2006; (e) undertaking domestic or tutoring activities on an occasional or casual basis at residential premises if no person other than the child will seek or obtain a financial benefit for that employment or engagement; s. 6 -- 8 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 7 (f) appearing in or being interviewed in a recording— (i) of a news or current affairs item if the child is the subject of the news or current affairs item and the child is not presenting the item and does not appear in the item in a scripted or rehearsed way; or (ii) if the child is in a public place and is providing a spontaneous reply or opinion in response to a question; (g) door-to-door fundraising for a non- profit organisation if the child is directly engaged by that organisation; (h) performing work in relation to a sporting activity (including coaching, refereeing or umpiring) except in relation to martial arts, horse riding, gym instruction and any other sporting activity with a high risk of injury that is prescribed by the regulations; (i) any other activity or arrangement prescribed by the regulations not to be employment. (4) For the purposes of this Act, a person is taken to employ a child and to be an employer of the child if the child is engaged in employment and— (a) the person engages the child under a contract of service or a contract for services (whether written or unwritten) or other arrangement; or s. 6 -- 9 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 8 (b) the work of the child is for the benefit of that person, whether or not it is also performed for the benefit of another person. (5) Despite the exclusion of certain sporting activities from employment by subsection (3)(h), performing work in relation to martial arts, horse riding, gym instruction and any other sporting activity with a high risk of injury to a child that is prescribed by the regulations is to be taken to be employment under this Act. (6) Despite subsection (4), a person is not to be taken to employ a child or to be an employer of a child if that person is in a class of persons prescribed by the regulations not to be an employer for the purposes of this Act.". 7 New section 5 substituted For section 5 of the Principal Act substitute— "5 What is light work? (1) For the purposes of this Act, light work means work or any other activity that— (a) is not likely to be harmful to a child's health, safety or moral or material welfare or development; and (b) is not such as to prejudice the child's attendance at school or the child's capacity to benefit from instruction. (2) For the purposes of subsection (1), the following types of work or activity are to be considered likely to be harmful to a child's health or safety unless the risk of harm arising from the work or activity is managed to minimise the risk— s. 7 -- 10 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 9 (a) repetitive bending, twisting or lifting; (b) manually lifting heavy items; (c) working with or near cooking or any other equipment that may produce high temperatures; (d) working with sharp instruments or equipment, power operated tools and any other dangerous equipment; (e) working near moving vehicles; (f) working at heights; (g) working with uncontrolled animals; (h) working in extreme weather conditions. (3) Subsection (2) does not limit the types of work or activity that may be considered light work under this section. (4) In determining whether or not any work or activity is light work or is likely to be harmful to a child's health, safety or moral or material welfare or development, consideration must be given to— (a) the child's age, sex and physical and emotional development and maturity; and (b) the nature and management of the work or activity and the nature and environment of the workplace where the work or activity is, or is to be, performed.". 8 Supervision in entertainment In section 6 of the Principal Act, omit "direct" and "or control". s. 8 -- 11 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 10 9 New section 8 substituted For section 8 of the Principal Act substitute– "8 When may a child be employed? A child may be employed— (a) in accordance with a permit and with the prior written consent of the parent or guardian of the child; or (b) in a family business, in accordance with Division 4. Note A child may also be employed in accordance with a work experience arrangement under Part 5.4 of the Education and Training Reform Act 2006—see section 5.4.11 of that Act.". 10 Employment without a permit In section 9 of the Principal Act— (a) for the penalty at the foot of subsection (1) substitute— "Penalty: 100 penalty units in the case of a body corporate; 60 penalty units in any other case."; (b) in the Note at the foot of the section for "5.4.19" substitute "5.4.11". 11 New section 13 substituted For section 13 of the Principal Act, substitute— "13 Application for a permit (1) A person who proposes to employ a child may apply to the Secretary for a permit for the child to engage in employment. s. 9 -- 12 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 11 (2) An application for a permit must— (a) be in a form approved by the Secretary; and (b) state the name, date of birth, home address and home telephone number of the child; and (c) state— (i) the name, telephone number and business address of the child's prospective employer including any business or other trading name of that employer; and (ii) the name of the child's parent or guardian and the home address and home telephone number of the child's parent or guardian, if different from the address or telephone number of the child; and (iii) the name and address of the child's school; and (iv) in the case of a permit for employment in entertainment, the name of any talent or casting agent through which the employment of the child is arranged; and (d) contain a statement by the child's prospective employer giving details of— (i) the intended workplace of the child and the business, trade or occupation carried on at the workplace; and s. 11 -- 13 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 12 (ii) the duties it is intended that the child will perform; and (iii) the intended hours of employment of the child and the intended dates of commencement and completion of that employment; and (iv) whether any of the employment will be within a school term and, if so, whether any of it will be within school hours; and (e) in the case of a permit for employment in entertainment, contain an undertaking that the prospective employer will ensure that— (i) the parent or guardian of the child has sufficient information about the following before giving consent to his or her child's employment— (A) the name and contact details of the employer referred to in paragraph (c)(i) and the employer's representative referred to in paragraph (f); and (B) details of the employment referred to in paragraph (d); and (ii) the parent or guardian of the child consents in writing to his or her child's employment before the employment commences; and (iii) if any of the employment of the child will occur during school hours, that an exemption from school attendance will be granted s. 11 -- 14 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 13 under section 11 to the child before the employment that occurs during school hours commences; and (f) if the proposed employer is not a natural person, contain the name and contact details of an officer or other representative of the body corporate; and (g) be signed— (i) if the prospective employer is a natural person, by the prospective employer; and (ii) if the prospective employer is not a natural person, by a natural person referred to in paragraph (f); and (iii) unless the application is for employment in entertainment, by the parent or guardian of the child; and (iv) unless the application is for employment in entertainment, by or on behalf of the child's school if any of the proposed employment will occur during school hours; and (h) contain any other information relating to the employment that the Secretary reasonably believes is appropriate and is published on a website maintained by the Department. s. 11 -- 15 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 14 (3) If the child is not required to attend any school, the application must contain a statement to that effect and give the reason why the child is not required to attend any school. (4) The Secretary may refuse to consider an application if it does not comply with this section.". 12 New section 13A inserted After section 13 of the Principal Act insert— "13A Multiple children or occasions of employment (1) If a prospective employer proposes to employ more than one child to work in entertainment and the employment of those children relates to the same form of entertainment or type of work, the employer may apply to the Secretary for a single permit in relation to those children for the employment specified in the application. (2) If a prospective employer proposes to employ a child on more than one occasion and the employment relates to the same type of work, the employer may apply to the Secretary for a single permit for that child for the employment specified in the application for those occasions. (3) The Secretary may issue a permit in accordance with an application referred to in this section. (4) If the Secretary receives an application referred to in subsection (1) the Secretary— (a) may exercise his or her powers in relation to the application and the issue of the permit as if each child named in s. 12 -- 16 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 15 the application were the only child referred to in the application or any permit issued; and (b) must perform his or her duties to give written notice to the employer, parent or guardian or school of a child as if each child referred to in the application were the only child referred to in the application or any permit issued.". 13 Investigation of an application for a permit (1) In section 14(1)(b) of the Principal Act, for "prospective employer (or both)" substitute "parent or guardian of the child". (2) In section 14(2) of the Principal Act, for "prospective employer" substitute "parent or guardian". 14 Section 15 repealed Section 15 of the Principal Act is repealed. 15 New section 16 substituted For section 16 of the Principal Act substitute— "16 Determining an application for a permit (1) The Secretary may grant a permit if the Secretary is satisfied that— (a) the health, safety, education and moral and material welfare of the child will not suffer from the proposed employment; and (b) the child will not be subjected to any form of exploitation in the course of the proposed employment; and s. 13 -- 17 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 16 (c) the proposed employment is not prohibited employment; and (d) the child is of or over the minimum age permitted by section 10 for the proposed employment. (2) If the Secretary is not satisfied of the matters referred to in subsection (1), the Secretary must refuse the application. (3) If the Secretary grants an application for a permit, he or she must— (a) issue a permit to the applicant; and (b) send a copy of the permit to the child's parent or guardian and the child's school. (4) The Secretary is not required to send a copy of the permit to the child's school if the child is exempted from the requirement to attend any school or the proposed employment will not occur during school hours. (5) A permit— (a) must state the employment authorised by the permit; and (b) in the case of a permit for employment that occurs during school hours, is valid for the period not exceeding 12 months specified in it unless varied or cancelled under section 18; and (c) in any other case, is valid for the period not exceeding 24 months specified in it unless varied or cancelled under section 18.". s. 15 -- 18 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 17 16 New section 16A inserted After section 16 of the Principal Act insert— "16A Supplementary permits (1) Despite section 13, this section applies if— (a) a proposed employer has applied for a permit to employ a child to work on more than one occasion in entertainment; and (b) the proposed employment relates to the same form of entertainment or the same type of work; and (c) the proposed employer has not provided information about all of the occasions of employment, or the Secretary requires additional information about those occasions of employment. (2) A permit may be granted subject to the following conditions— (a) that the applicant will provide any additional information in relation to an occasion of employment that is required by the Secretary under this section before the occasion of employment commences; and (b) the permit does not take effect with regard to an occasion of employment until the grant of a supplementary permit by the Secretary in respect of the additional information. (3) The Secretary may grant a supplementary permit on receipt of any additional information required under subsection (2) and that information may be specified in the supplementary permit. s. 16 -- 19 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 18 (4) The Secretary has all of the powers in section 14 in relation to a consideration of additional information required under this section as if the information were contained in the application for the original permit. (5) The Secretary may refuse to grant a supplementary permit if the Secretary is not provided with any additional information required under this section at least 48 hours before the commencement of the occasion of employment to which the additional information relates. (6) A supplementary permit is subject to any conditions that could have been imposed on the original permit that are determined by the Secretary and specified in the supplementary permit. (7) A supplementary permit may revoke or vary any conditions that were imposed on the original permit and that are no longer necessary or appropriate because of the grant of the supplementary permit. (8) If a permit and any supplementary permit are granted in accordance with this section, those permits are to be treated as one permit granted by the Secretary under this Act as at the date of the original permit. (9) The Secretary may grant more than one supplementary permit in relation to a permit.". s. 16 -- 20 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 19 17 New section 18 substituted For section 18 of the Principal Act substitute— "18 Secretary may vary or cancel a permit (1) In addition to the powers under subsection (2), the Secretary may vary or cancel a permit at any time. (2) The Secretary must cancel a permit if— (a) the health, safety, education or the moral or material welfare of the child is suffering or is likely to suffer from the employment; or (b) the child is being or is likely to be subjected to any form of exploitation in the course of the employment; or (c) the employment is prohibited employment. (3) In considering whether to vary or cancel a permit, the Secretary may cause to be carried out any investigation or inquiry that the Secretary considers necessary to enable the proper consideration of the variation or cancellation. (4) If the Secretary varies or cancels a permit, the Secretary must give written notice to— (a) the employer or prospective employer of the child to whom it applies; and (b) the child's parent or guardian; and (c) the child's school. (5) The Secretary is not required to send a copy of the notice to the child's school if— (a) the variation does not relate to the child's hours of work; or s. 17 -- 21 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 20 (b) the child is exempted from the requirement to attend any school; or (c) none of the proposed employment will occur during school hours. (6) A variation or cancellation of a permit takes effect on the giving of written notice of the variation or cancellation to the employer or prospective employer of the child.". 18 New sections 18A and 18B inserted After section 18 of the Principal Act insert— "18A Variations that may be made to a permit (1) A variation of a permit under section 18 may include any of the following— (a) variation of the period of the permit; (b) variation of an existing condition on the permit; (c) removal of a condition on the permit; (d) addition of a condition or any further condition on the permit; (e) variation of any particular of the employment specified in the permit. Example A change to the hour that a child is to finish work on a particular day. (2) The Secretary must not vary a permit unless the Secretary is satisfied that the health, safety, education and the moral and material welfare of the child will not suffer from the variation. s. 18 -- 22 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 21 18B Record keeping by employers (1) An employer must keep a record of the written consent of the parent or guardian of a child to the child's employment by that employer in accordance with subsection (3). (2) An employer must keep a record of an exemption from attendance at school for a child employed by that employer in accordance with subsection (3). (3) The employer must keep the written record— (a) in a form approved by the Secretary; and (b) for a period of 12 months after the expiry of the permit to which the record relates, or for any other prescribed period. (4) Subsection (1) does not apply if— (a) the permit application for the employment was signed by the parent or guardian of the child; or (b) the employer provided a copy of the written consent of the parent or guardian to the Secretary together with the employer's permit application for the employment. (5) Subsection (2) does not apply if— (a) the permit application for the employment was signed by or on behalf of the child's school; or (b) the employer provided a copy of the exemption to the Secretary together with the employer's permit application for the child's employment.". s. 18 -- 23 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 22 19 New section 19 substituted For section 19 of the Principal Act substitute— "19 Supervision of children in employment (1) An employer of a child must ensure that the child is— (a) supervised at all times by a person who has a current assessment notice or is exempt from the requirement to have a current assessment notice under section 19B; and (b) directly and adequately supervised by a person referred to in paragraph (a) at all times in the employment, having regard to the following— (i) the nature and environment of the workplace, including the number of children employed at any one time in the workplace; and (ii) the nature of the work performed by the child; and (iii) the child's age, sex and physical and emotional development and maturity. Penalty: 100 penalty units in the case of a body corporate; 60 penalty units in any other case. Note Section 19A of this Act extends the application of the Working with Children Act 2005 to the supervision of children in employment under this Act. Section 33 of the Working with Children Act 2005 as applied by this Act requires the supervisor of a child to have a current assessment notice under that Act. Section 35 of the Working with Children Act 2005 as applied by this Act makes it an offence for a person to engage s. 19 -- 24 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 23 another person to supervise a child in employment without a current assessment notice. The exemptions from the requirement to have a current assessment notice under Part 3 of the Working with Children Act 2005 do not apply to supervisors of child employees but are replaced by the exemptions set out in section 19B of this Act. (2) An employer must keep a written record of the name of any person who supervises a child in the course of the child's employment and the number of any current assessment notice for that person in accordance with subsection (3). (3) The employer must keep the written record— (a) for a period of 12 months after the expiry of the permit to which the record relates; or (b) for any other prescribed period. (4) A prospective employer or employer of a child must, on request by the parent or guardian of a child or a child employment officer, provide to the parent or guardian or the child employment officer the name of any person who supervises, or that the employer knows will supervise or has supervised, the child in the course of the child's employment and the number of the person's current assessment notice. Penalty: 100 penalty units in the case of a body corporate; 60 penalty units in any other case. s. 19 -- 25 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 24 (5) Subsection (4) does not apply to an employer who does not have a written record of the information requested because of the expiry of the period set out in subsection (3). (6) Nothing in this section applies to the employment of a child in a family business.". 20 New Division 2A inserted in Part 2 After section 19 of the Principal Act insert— 'Division 2A—Working with Children Act 2005 19A Application of Working with Children Act 2005 (1) The Working with Children Act 2005 extends and applies to the supervision of a child in employment that requires a permit under this Act as if that supervision were child-related work for the purposes of the Working with Children Act 2005. (2) The Working with Children Act 2005 applies to the supervision of a child referred to in subsection (1) with the following modifications— (a) sections 9(1)(b) and 9(8)(b) do not apply to exclude work experience arrangements referred to in section 5.4.11(4) of the Education And Training Reform Act 2006 from the operation of the Act as applied by the Child Employment Act 2003; (b) section 16(4)(c) applies with the words "or the Child Employment Act 2003" inserted after "this Act"; s. 20 -- 26 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 25 (c) section 20(1) applies with the following paragraph inserted after "listed"— "; and (d) in the case of a person supervising a child referred to in section 19A(1) of the Child Employment Act 2003, the employer of the child"; (d) section 21 applies with the following subsection substituted for section 21(6)— "(6) For the purposes of Part 4, a person supervising a child referred to in section 19A(1) of the Child Employment Act 2003 who has been given an interim negative notice under section 16 is not to be regarded as having a current assessment notice in respect of that supervision."; (e) Part 3 does not apply; (f) section 33(2)(b) applies with the words "section 19B of the Child Employment Act 2003" substituted for "Part 3" (where first occurring); (g) section 33(2)(a), (2)(c) and (2A) do not apply to a person who is supervising a child referred to in section 19A(1) of the Child Employment Act 2003; (h) section 34(2A) does not apply; (i) section 35(2)(b) applies with the words "section 19B of the Child Employment Act 2003" substituted for "Part 3"; s. 20 -- 27 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 26 (j) section 35(2)(a), (2)(c), (3) and (3A) do not apply to a person who is supervising a child referred to in section 19A(1) of the Child Employment Act 2003; (k) section 36(2)(b) applies with the words "section 19B of the Child Employment Act 2003" substituted for "Part 3"; (l) section 36(2)(a) and (2A) do not apply to a person who is supervising a child referred to in section 19A(1) of the Child Employment Act 2003; (m) section 38 applies with the words "or the employment of a child referred to in section 19A(1) of the Child Employment Act 2003" inserted after "work", where twice occurring; (n) section 40(2)(a)(i) applies with the words "or the Child Employment Act 2003" inserted after "this Act"; (o) section 40(2) applies with the following paragraph inserted after paragraph (a)— "(aa) to the Secretary of the Department of Innovation, Industry and Regional Development for considering an application under the Child Employment Act 2003 or determining compliance with that Act; or". (3) Sections 33 and 35 to 37 of the Working with Children Act 2005 apply to the supervision of a child referred to in subsection (1) in or at a service, body, place or activity as if it were child-related work s. 20 -- 28 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 27 despite the supervision occurring before the relevant date in relation to that service, body, place or activity under that Act. 19B Exemptions from working with children check (1) The following persons are exempt from the requirements of the Working with Children Act 2005 as applied and modified by this Act to have a current assessment notice under the Working with Children Act 2005 and to undergo a working with children check under Part 2 of that Act in respect of their supervision of a child referred to in section 19A(1)— (a) a person who supervises a child who is closely related to him or her; (b) a person who is a registered teacher under the Education and Training Reform Act 2006; Note Section 2.6.28 of the Education and Training Reform Act 2006 provides that a teacher whose registration is suspended is deemed not to be registered for the period of that suspension. (c) a person who is a member of the force within the meaning of the Police Regulation Act 1958 and who has taken and subscribed the oath referred to in section 13(1) of that Act (other than a member who is suspended from duty under that Act); (d) a person who is not an Australian citizen and not ordinarily resident in Australia in respect of the supervision of a child if he or she does not s. 20 -- 29 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 28 ordinarily engage in that work in Victoria. (2) For the purposes of subsection (1)(a), a person is closely related to a child if the person is the child's— (a) parent, step-parent or guardian; (b) grandparent; (c) uncle or aunt; (d) brother or sister (including half-brother, half-sister, step-brother, step-sister, brother-in-law or sister-in-law)— and includes, in the case of domestic partners, a person who would be closely related to the child if the domestic partners were married to each other. (3) A person who supervises a child in employment (other than teaching in a school) and who relies on an exemption under subsection (1)(b) in respect of that supervision must notify any person by whom he or she is employed in that supervision in writing of the suspension or cancellation of the person's registration under the Education and Training Reform Act 2006 within 7 days after receiving notice of the suspension or cancellation. Penalty: 60 penalty units. (4) A person referred to in subsection (1)(c) who supervises a child in employment (other than as a member of the force) and who relies on an exemption under subsection (1)(c) in respect of that supervision must notify any person by whom he or she is employed in that supervision in writing of the suspension or dismissal of the person as a member of the s. 20 -- 30 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 29 force under the Police Regulation Act 1958 within 7 days after receiving notice of the suspension or dismissal. Penalty: 60 penalty units.'. 21 Contravention of conditions At the end of section 23 of the Principal Act insert— "(2) A condition in section 21 or 22 does not apply to the employment of a child to the extent that the Secretary specifies in the permit for that employment or by notice in writing to the employer. (3) The Secretary must not specify that a condition does not apply unless the Secretary has regard— (a) to the effect of the proposed change on the child's health or safety or moral or material welfare or development or the child's attendance at school or capacity to benefit from instruction; and (b) the views of the parent or guardian of the child and the employer or prospective employer of the child. Note Section 5.4.11 of the Education and Training Reform Act 2006 has the effect that conditions in this Division do not apply to a child employed in certain work experience arrangements.". 22 Entertainment permits In section 27 of the Principal Act after "permit" insert "and with the prior written consent of the parent or guardian of the child". s. 21 -- 31 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 30 23 Restriction on certain activities For section 35(1) of the Principal Act substitute— "(1) A person must not cause or permit a child to engage in any activity that is not employment under section 4(3) except to the extent that the activity is light work. Penalty: 100 penalty units in the case of a body corporate; 60 penalty units in any other case.". 24 Restricted hours for certain activities In section 36 of the Principal Act after "any activity" insert "that is not employment". 25 Functions of child employment officers In section 37(1) of the Principal Act for "and the regulations" substitute ", the Mandatory Code and the regulations". 26 New section 38 substituted For section 38 of the Principal Act substitute— "38 Appointment of child employment officers (1) The Secretary may, by instrument, appoint as a child employment officer for the purposes of this Act a person employed under Part 3 of the Public Administration Act 2004. (2) A child employment officer is subject to the Secretary's directions in the performance of his or her functions or in the exercise of his or her powers under this Act and the regulations. (3) A direction under subsection (2) may be of a general nature or may relate to a specified matter or to a specified class of matter.". s. 23 -- 32 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 31 27 Powers on entry For section 43(c) of the Principal Act substitute— "(c) interview the employer or any person who purports to have authority to act on behalf of the employer or any person who is employed or working at the workplace, and to require answers to questions put in the interview;". 28 New section 43A inserted After section 43 of the Principal Act insert— "43A Power to give directions (1) A child employment officer may give a direction (either orally or in writing) to a person at premises referred to in section 42(1) if the child employment officer reasonably believes that it is necessary to do so because of an immediate and serious risk to the health or safety or the moral or material welfare of any child employed at the premises. (2) A person must not, without reasonable excuse, refuse or fail to comply with a direction given to the person under subsection (1). Penalty: 100 penalty units in the case of a body corporate; 60 penalty units in any other case.". s. 27 -- 33 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 32 29 New section 44 substituted For section 44 of the Principal Act substitute— "44 Power to require information or documents (1) For the purpose of determining whether this Act or the regulations have been complied with or of investigating an application for a permit, a child employment officer may by written notice require a person, within a reasonable period specified in the notice, to— (a) give the child employment officer any information that the child employment officer requires; or (b) produce to him or her a document in the custody or control of the person. (2) A child employment officer may inspect, and make copies of or take extracts from, a document produced to him or her under subsection (1).". 30 Offences (1) For section 47(1) of the Principal Act substitute— "(1) A person must not, without reasonable excuse— (a) fail to comply with a request to produce documents or answer questions under section 43; or (b) fail to comply with a notice to produce documents or provide information under section 44; or s. 29 -- 34 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 33 (c) otherwise obstruct or hinder a child employment officer performing functions or exercising powers under this Act. Penalty: 100 penalty units in the case of a body corporate. 60 penalty units in any other case.". (2) For the penalty at the foot of section 47(2) of the Principal Act substitute— "Penalty: 100 penalty units in the case of a body corporate; 60 penalty units in any other case.". 31 Further protections After section 48(2) of the Principal Act insert— "(3) Before requiring a person to produce a document or answer questions under section 43 a child employment officer must— (a) warn the person that a refusal or failure to comply with the requirement, without reasonable excuse, is an offence; and (b) inform the person, if a natural person, that the person may refuse or fail to produce documents (other than a document referred to in subsection (2)) or to answer questions if providing the information would tend to incriminate the person. (4) A notice under section 44 must— (a) warn the person that a refusal or failure to comply with the notice, without reasonable excuse, is an offence; and s. 31 -- 35 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 34 (b) if directed to a natural person, inform the person that the person may refuse or fail to produce documents (other than a document referred to in subsection (2)) or to provide information if producing the document or providing the information would tend to incriminate the person. (5) A person is not liable to be prosecuted for an offence against section 47 if the child employment officer concerned failed to comply with section 39 or subsection (3) or (4).". 32 New sections 49A and 49B inserted After section 49 of the Principal Act insert— "49A Who can prosecute under this Act? (1) A prosecution for an offence against this Act may only be brought by a person employed in the Department under Part 3 of the Public Administration Act 2004 who is authorised by the Minister or the Secretary to bring a prosecution. (2) An authorisation— (a) must be in writing; and (b) may be given generally, or only in relation to a particular case or cases, or a particular class of cases; and (c) may be revoked by the person who gave it at any time by notice in writing. (3) The revocation of an authorisation does not affect any proceedings started by a person before that person's authorisation was revoked unless the notice of revocation states otherwise. s. 32 -- 36 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 35 (4) In a prosecution for an offence under this Act, a Court must presume, in the absence of evidence to the contrary, that the prosecutor is authorised to bring the prosecution. (5) A prosecution may only be conducted by— (a) a person authorised by or under subsection (1) to bring the prosecution; or (b) an Australian lawyer (within the meaning of the Legal Profession Act 2004) briefed by the person authorised to bring the prosecution. 49B Judicial notice of signatures All courts must take judicial notice of— (a) the signature of a person who is, or was at the time the signature purports to have been made, the Minister, the Secretary or an employee to whom section 49A(1) applies; and (b) the fact that a person listed in paragraph (a) held the position he or she purported to hold at the time the signature purports to have been made.". 33 New sections 50A and 50B inserted After section 50 of the Principal Act insert— "50A Offences by bodies corporate (1) If a body corporate contravenes any provision of this Act, each person who is an officer of the body corporate is to be taken to have contravened the same provision if the person knew of, or knowingly authorised or permitted, the contravention. s. 33 -- 37 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 36 (2) A natural person may be proceeded against and convicted or found guilty under a provision in accordance with subsection (1) whether or not the body corporate has been proceeded against or convicted or found guilty under that provision. (3) Nothing in subsection (1) or (2) affects any liability imposed on a body corporate for an offence committed by the body corporate against this Act. 50B Conduct by officers, employees or agents (1) For the purposes of any proceedings under this Act, any conduct engaged in on behalf of a body corporate is deemed to have been engaged in also by the body corporate if the conduct was engaged in by an employee, agent or officer of the body corporate within the scope of the actual or apparent authority of the employee, agent or officer. (2) If, in any proceedings under this Act, it is necessary to establish the state of mind of a body corporate in relation to particular conduct, it is sufficient to show— (a) that the conduct was engaged in by an officer or employee of the body corporate within the scope of the officer's or employee's actual or apparent authority and the officer or employee had that state of mind; or (b) that the conduct was engaged in by an agent of the body corporate and— (i) the agent acted at the specific direction or with the specific consent or agreement of the body corporate; or (ii) the agent had that state of mind; or s. 33 -- 38 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 37 (iii) the body corporate was aware of the agent's state of mind when the conduct was engaged in. (3) A reference in this section to the state of mind of a person includes a reference to the knowledge, intention, opinion, belief or purpose of the person and the person's reasons for the intention, opinion, belief or purpose.". 34 Regulations After section 53(1)(a) of the Principal Act, insert— "(aa) prescribing an activity or arrangement not to be employment; (ab) prescribing a person or class or classes of persons not to be employers; (ac) prescribing the periods for which employers must keep records in relation to the employment of children; (ad) providing for the imposition of fees for an application for a permit or supplementary permit; (ae) prescribing a sporting activity to be a sporting activity with a high risk of injury;". 35 New sections 54 and 55 substituted for section 58 For section 58 of the Principal Act substitute— "54 Existing permits and applications (1) If a permit has been issued under section 16 before the commencement of section 15 of the Child Employment Amendment Act 2010 the permit continues in force after that commencement in accordance with its terms and subject to this Act as in force after that commencement. s. 34 -- 39 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 38 (2) If an application for a permit under section 13 was received and not determined before the commencement of section 11 of the Child Employment Amendment Act 2010, that application must be determined in accordance with section 16, as amended by the Child Employment Amendment Act 2010, as if— (a) the employer were the applicant; and (b) the parent or guardian who made the application had consented to the application and the employer had provided a copy of the written consent of the parent or guardian to the Secretary together with the application for the permit. 55 Existing police checks and declarations (1) Despite the commencement of section 20 of the Child Employment Amendment Act 2010— (a) a person who was named on a permit or a declaration of suitability in force immediately before that commencement as a person permitted to employ or supervise a child in employment is not liable to an offence under section 19(1)(a) of this Act or section 33 of the Working with Children Act 2005 in respect of the supervision of that child for 12 months after the date the police check for that permit or declaration was issued for that employment or supervision; s. 35 -- 40 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 39 (b) a person who was named on a permit or a declaration of suitability in force immediately before that commencement as a person permitted to employ or supervise a child in employment is not liable to an offence under section 19(1)(a) of this Act or section 33 of the Working with Children Act 2005 in respect of the supervision of the employment of any other child within 12 months after the date the police check for that permit or declaration was issued in respect of that employment or supervision if— (i) the police check was issued within one month before the supervision of that other child commenced; or (ii) in the case where the police check was issued more than one month before the supervision of that other child commenced, within one month before that supervision commenced the person made a statutory declaration— (A) under section 13(2)(d)(ii) as in force immediately before the commencement of section 20 of the Child Employment Amendment Act 2010; or (B) setting out the matters in subsection (2) and, in the case of an employer who supervises a child, provided the statutory declaration to the Secretary before the supervision of that other s. 35 -- 41 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 40 child commenced or, in the case of a supervisor who is employed, provided the statutory declaration to the employer before the supervision of that other child commenced. (2) A statutory declaration under subsection (1)(b)(ii)(B) must state— (a) that the person consented to a police check in connection with a permit referred to in subsection (1) within 12 months before the statutory declaration; and (b) since the date of that consent the person has not been charged with any offence; and (c) the name or business or trading name of the employer of that other child who is to be supervised. (3) An employer who receives a statutory declaration under subsection (1)(b)(ii)(B) from a supervisor must forward the statutory declaration to the Secretary before the supervision of that other child commences. (4) A person is not liable to an offence under section 35 of the Working with Children Act 2005 in respect of the engagement of a person referred to in subsection (1) to supervise the child for the period of 12 months specified in that section. (5) A person is not liable to an offence under section 36 of the Working with Children Act 2005 in respect of offering the services of a person referred to in subsection (1) to s. 35 -- 42 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 41 supervise the child for the period of 12 months specified in that section. (6) Section 46(1) does not apply to a child employment officer who, at the request of an employer referred to in this section, provides advice to the employer as to whether subsection(1)(b) applies to a person referred to in that paragraph who is, or is to be, employed by that employer to supervise a child.". 36 Amendments to the Working with Children Act 2005 (1) At the foot of section 9 of the Working with Children Act 2005 insert— "Note Section 19A of the Child Employment Act 2003 extends the application of this Act to the supervision of a child in employment that requires a permit under that Act as if the supervision were child-related work under this Act. The Child Employment Act 2003 applies to a child of or over 14 years of age and under 15 years of age undertaking a work experience arrangement referred to in section 5.4.11(4) of the Education and Training Reform Act 2006. The operation of the Child Employment Act 2003 and its application to this Act has the effect that the supervision of the employment of a child undertaking that work experience arrangement is child-related work within the meaning of this Act. Section 19A of the Child Employment Act 2003 provides that this is the case despite the general exclusions in sections 9(1)(b) and 9(8)(b) of this Act for work experience arrangements.". (2) At the foot of section 32A of the Working with Children Act 2005 insert— "Note This Part does not apply to supervisors of children under the age of 15 years in employment requiring a permit under the Child Employment Act 2003. Those supervisors are to be See: Act No. 57/2005. Reprint No. 2 as at 22 May 2008 and amending Act Nos 21/2008, 52/2008, 85/2008, 55/2009, 68/2009, 69/2009, 74/2009 and 91/2009. LawToday: www. legislation. vic.gov.au s. 36 -- 43 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 42 taken to be engaged in child-related work under this Act because of the operation of section 19A of the Child Employment Act 2003. Section 19B of that Act sets out those supervisors of employed children under 15 years who are exempt from the requirement to have a working with children check and a current assessment notice under the applied provisions of this Act.". (3) At the foot of section 40 of the Working with Children Act 2005 insert— "Note Under the Child Employment Act 2003, the supervision of children under the age of 15 years in employment requiring a permit under that Act is child-related work for the purposes of this Act with the modifications set out in that Act. Section 19A(2) and (3) of the Child Employment Act 2003 modifies the application of the defences in Part 4 of this Act in respect of supervisors of those children.". 37 Amendment to the Transport Accident Act 1986 In section 3(2) of the Transport Accident Act 1986— (a) for "74G of the Community Services Act 1970" substitute "2.1.5 of the Education and Training Reform Act 2006"; (b) for "or licence has been granted under section 13" substitute "has been granted under section 16". 38 Repeal of amending Act This Act is repealed on 31 December 2011. 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). ═══════════════ See: Act No. 111/1986. Reprint No. 11 as at 17 April 2008 and amending Act Nos 12/2008, 65/2008, 4/2009, 68/2009 and 69/2009. LawToday: www. legislation. vic.gov.au s. 37 -- 44 of 45 -- Child Employment Amendment Act 2010 No. 26 of 2010 43 ENDNOTES † Minister's second reading speech— Legislative Assembly: 10 March 2010 Legislative Council: 6 May 2010 The long title for the Bill for this Act was "A Bill for an Act to amend the Child Employment Act 2003, to apply provisions of the Working with Children Act 2005 to the supervision of children in employment, to make amendments to the Working with Children Act 2005, to make consequential amendments to the Transport Accident Act 1986 and for other purposes." Endnotes -- 45 of 45 --