Commission for Children and Young
People Amendment Bill 2005

Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to amend the Commission for Children and Young People
Act 1998 (the Principal Act) as follows:

(a) to confer on the Commission for Children and Young People (the
Commission) the functions of encouraging organisations to develop their
capacity to be safe and friendly for children and of developing and
administering a voluntary accreditation scheme for programs for sex
offenders,

(b) to enable the Commission to compel certain information to be produced to
enable it to carry out certain functions,

(c) to incorporate into the Principal Act provisions currently contained in the
regulations that relate to special inquiries conducted by the Commission and
other matters,

(d) to incorporate into the Principal Act the provisions of the Child Protection
(Prohibited Employment) Act 1998 (relating to prohibitions on employment in
child-related employment),

(e) to include in the categories of persons who are prohibited from engaging in
child-related employment (prohibited persons) persons who are convicted of
offences committed as adults of intentionally wounding or causing grievous
bodily harm to a child where the adult was more than 3 years older than the
child,

(f) to restrict the right of a prohibited person to apply for a review of the
prohibition if the person is a person convicted of the murder of a child, certain
sexual offences involving a child or of offences involving the production of
child pornography,

(g) to change references to employment screening to references to background
checking,

(h) to extend the offences to be checked as part of background checking
procedures for employees in child-related employment,
        (i) to provide for recent previous background checks on potential short-term
employees to be used to satisfy requirements under the Act to carry out
background checks on such employees,

(j) to make other minor and consequential amendments and amendments of a
savings and transitional nature.

The Bill also repeals the Child Protection (Prohibited Employment) Act 1998 and the
Commission for Children and Young People Regulation 2000.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

Clause 2 provides for the commencement of the proposed Act on a day or days to be
appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the
Commission for Children and Young People Act 1998 set out in Schedule 1.

Clause 4 is a formal provision that gives effect to the amendments to the Acts set out
in Schedule 2.

Clause 5 repeals the Child Protection (Prohibited Employment) Act 1998 and the
Commission for Children and Young People Regulation 2000.

Schedule 1 Amendment of Commission for Children
and Young People Act 1998
Functions of Commission
Schedule 1 [1] amends the long title to the Principal Act to reflect the additional
functions being conferred on the Commission and the incorporation in that Act of the
provisions formerly contained in the Child Protection (Prohibited Employment) Act
1998.

Schedule 1 [8] amends section 11 of the Principal Act to confer on the Commission
the function of determining or intervening in applications by persons prohibited from
engaging in child-related employment for a review of that prohibition (review
applications).

Schedule 1 [11] amends section 11 of the Principal Act to confer on the Commission
the function of encouraging organisations to develop their capacity to be safe and
friendly for children and the function of developing and administering a voluntary
accreditation scheme for programs for persons who have committed sexual offences
against children.

Schedule 1 [12] substitutes section 14A of the Principal Act. The proposed section
enables the Commission, by notice in writing, to require a government agency to
provide it with information (including documents) relevant to whether a person poses
a risk to the safety of children for the purposes of preparing submissions to the
Industrial Relations Commission or the Administrative Decisions Tribunal or
considering a review application. The proposed section also enables the
Commission, by notice in writing, to require other persons to provide information
relevant to whether a person poses a risk to the safety of children for the purpose of
considering any such application.

Schedule 1 [13] amends section 15A of the Principal Act to enable information
obtained by the Commission in the exercise of its functions (other than relating to the
Child Death Review Team) to be used for the purpose of making a report to the
Director-General of the Department of Community Services under section 27
(Mandatory reporting) of the Children and Young Persons (Care and Protection) Act
1998.

Schedule 1 [14] amends section 15A of the Principal Act to make it clear that certain
protected reports under the Children and Young Persons (Care and Protection) Act
1998 may be produced to the Commission but remain subject to protections.

Schedule 1 [15] inserts proposed section 15B into the Principal Act. The proposed
section enables the Commission, by notice in writing, for the purposes of exercising
its monitoring and auditing functions relating to prohibited persons and background
checking, to require a government agency or any other person to provide the
Commission with statements or documents. It will be an offence to fail to comply
with such a notice or knowingly provide false or misleading information.

Special inquiries by Commission
Schedule 1 [17] amends section 20 of the Principal Act to incorporate a provision
currently contained in the regulations that enables the Commission to authorise
persons to appear and be heard at special inquiries conducted by the Commission if
the Commission is satisfied that they are substantially and directly interested in the
subject-matter of the inquiry.

Schedule 1 [18] inserts proposed sections 20A and 20B into the Principal Act to
incorporate provisions currently contained in the regulations. Proposed section 20A
prohibits legal representation at special inquiries conducted by the Commission
unless the Commission is satisfied that it is necessary or desirable in the public
interest or for the safety, welfare or well-being of a child. Proposed section 20B
enables the Commission, if satisfied that it is necessary or desirable in the public
interest or for the safety, welfare or well-being of a child, to direct that certain
evidence or information relating to a private hearing of a special inquiry not be
published except in the manner or to the persons specified by the Commission.

Schedule 1 [16] amends section 20 of the Principal Act to omit a power to make
regulations restricting the publication or disclosure of evidence at a special inquiry.

Prohibited employment
Schedule 1 [19] amends the heading to Part 7 of the Principal Act to reflect the fact
that the Part will relate to additional aspects of safeguards relating to child-related
employment.

Schedule 1 [20] inserts a heading for the new Division 1 of Part 7 of the Principal
Act.

Schedule 1 [21] substitutes sections 31 and 32 of the Principal Act to include in the
objects of Part 7 the protection of children by prohibiting certain persons from being
engaged in child-related employment and to make the safety and welfare of children,
and protecting them from abuse, the paramount consideration in the operation of the
Part.

Schedule 1 [22] amends section 33 of the Principal Act to insert definitions, formerly
contained in the Child Protection (Prohibited Employment) Act 1998, including
definitions of child-related employment, employer and employee. These definitions
will now apply to Part 7 in place of the previous definitions of those terms.

Schedule 1 [30] inserts proposed section 33A into the Principal Act. The proposed
section re-enacts a provision of the Child Protection (Prohibited Employment) Act
1998 and provides that the background checking provisions of the Principal Act, and
the provisions placing prohibitions on child-related employment, do not apply to
employment solely concerning children related to the relevant person or children of
an employer to whom the person is related.

Schedule 1 [31] inserts proposed Division 2 of Part 7 (Prohibitions on child-related
employment) into the Principal Act. The proposed Division re-enacts the provisions
of the Child Protection (Prohibited Employment) Act 1998, which identify persons
who are prohibited from engaging in child-related employment (proposed section
33B) and make it an offence for prohibited persons to apply for, undertake or remain
in child-related employment (proposed section 33C) and an offence to employ a
person in child-related employment without enquiring of the person whether they are
a prohibited person (proposed section 33D) and to employ in child-related
employment a person that the employer knows is a prohibited person (proposed
section 33E). The category of persons who are prohibited is extended by adding
persons who have been found guilty, as adults, of intentionally wounding or causing
grievous bodily harm to a child who is more than 3 years younger.

The proposed Division also re-enacts provisions relating to orders declaring that the
prohibition provisions do not apply to persons in respect of particular offences. The
re-enacted provisions enable the Commission, the Industrial Relations Commission
and the Administrative Decisions Tribunal (the relevant tribunals) to make such an
order on application by a prohibited person (proposed sections 33H and 33I) and set
out the requirements for making such an order (proposed section 33J). Procedural
provisions relating to stays, multiple applications, notice to the Commissioner of
Police and the limits on the jurisdiction of the Industrial Relations Commission are
re-enacted (proposed sections 33L–33O). Other provisions making it clear that a
prohibited person may be transferred to other employment (proposed section 33Q)
are also re-enacted.

In addition, persons found guilty of the murder of a child, certain child sexual assault
offences and certain child pornography offences will be prohibited from seeking a
review of their prohibited status (proposed section 33G). However, persons
convicted of an offence involving sexual intercourse with a child not more than 3
years younger may make an application for an order with the leave of the
Commission or a relevant tribunal. The provisions also make it clear that the
applicant for an order must establish that he or she does not pose a risk to the safety
of children. Proposed section 33M is a new provision that enables the Commission
to apply to a relevant tribunal for a review of an order (including an order made by
the Commission). Proposed section 33P is a new provision that enables regulations
to be made to establish a scheme that will require self-employed persons to obtain,
display and produce certificates that they are not prohibited persons. Proposed
section 33R enables the Commission to advise persons on their prohibited person
status. Proposed section 33S confers monitoring and auditing functions on the
Commission.

Schedule 1 [53] inserts proposed section 52, which re-enacts a provision of the Child
Protection (Prohibited Employment) Act 1998 that provides that a prohibition on
employment under the Principal Act prevails to the extent of inconsistency with any
other Act or law and removes the jurisdiction of the Industrial Relations Commission
or any other court or tribunal to make orders for the re-instatement or re-employment
of, or payment of compensation to, a person employed contrary to a prohibition
under the Principal Act.

Background checking of employees
Schedule 1 [2] changes all references in the Principal Act to employment screening
to references to background checking. Schedule 1 [9], [32], [39] and [49] make
consequential amendments.

Schedule 1 [3] amends section 3 of the Principal Act to replace the definition of
employment screening with a definition of background checking.

Schedule 1 [10] amends section 11 of the Principal Act as a consequence of the
background checking provisions being included as Division 3 of Part 7 of the
Principal Act, rather than comprising the whole of Part 7.

Schedule 1 [27] amends section 33 of the Principal Act to include a criminal record
relating to child-related personal violence offences or offences involving indecent
filming committed in relation to children as matters for which a check is to be made
as part of background checking of a person who is employed or has applied to be
employed in child-related employment. Schedule 1 [26] makes a consequential
amendment.

Schedule 1 [29] amends section 33 of the Principal Act to incorporate provisions
currently contained in the regulations that exclude certain apprehended violence
orders and certain offences and criminal records from matters that are to be covered
by background checking. Schedule 1 [23]–[25] and [28] make consequential
amendments.

Schedule 1 [32] and [36] change references to “Part” to “Division” as a consequence
of the background checking provisions being included as Division 3 of Part 7 of the
Principal Act, rather than comprising the whole of Part 7.

Schedule 1 [33] amends section 34 of the Principal Act to replace a requirement that
background checking include an assessment of risk to children involved in
child-related employment of a person with a requirement that it include an estimate
of the risk to children involved in such employment, having regard to all the
circumstances of the case, including any risk arising from the particular workplace.

Schedule 1 [34] and [46] make consequential amendments.

Schedule 1 [37] amends section 35 of the Principal Act to provide for the amendment
and revocation and the publication of guidelines made by the Minister under that
section. Schedule 1 [35] makes a consequential amendment.

Schedule 1 [38] amends section 36 of the Principal Act to make it clear that the
Commission may update and correct entries in its database of relevant apprehended
violence orders and child protection prohibition orders made against persons and
relevant employment proceedings completed against persons.

Schedule 1 [41] removes a reference in section 37 of the Principal Act to the Child
Protection (Prohibited Employment) Act 1998 (which is being repealed) and clarifies
the duty to carry out background checking of religious officials engaged in
child-related employment. Currently, it extends to Ministers of religion and members
of religious organisations, as amended it will extend to ministers, priests, rabbis,
muftis or other like religious leaders or spiritual officials of religions.

Schedule 1 [42] inserts proposed section 37A. The proposed section provides for
background checking carried out within the previous 12 months to be used to fulfil
the duty to carry out background checking for employees who are to be employed for
less than 6 months and who are being employed in the same kind of child-related
employment for which the checking was carried out. If the employer is not the same
employer as the employer for whom background checking was carried out, the
background check must be one carried out by an employer-related body approved by
the Minister. Schedule 1 [40] makes a consequential amendment.

Schedule 1 [43] amends section 38 of the Principal Act to enable employer-related
bodies to disclose information gained in background checking to employers other
than those for whom the checking was undertaken. This will enable disclosure for the
purposes of proposed section 37A.

Schedule 1 [44] amends section 38 of the Principal Act to enable information
relating to relevant criminal records, relevant apprehended violence orders and child
protection prohibition orders obtained in background checking to be disclosed to an
employer or employer-related body situated outside New South Wales and approved
by the Minister.

Schedule 1 [45] amends section 39 of the Principal Act to remove the duty of an
employer to notify the Commission of relevant employment proceedings against a
person where the allegations in respect of which the proceedings were brought are
found to be vexatious or misconceived. It also provides that relevant employment
proceedings are taken to be completed (and therefore reportable to the Commission)
if the employer has determined the proceedings, whether or not any right of appeal
or review has been exercised or exhausted.

Schedule 1 [47] omits sections 41 and 42 of the Principal Act (which are to be
re-enacted and extended as proposed sections 48A and 48B) and inserts proposed
section 41. Proposed section 41 enables the Commission, by notice in writing, to
require an employer to comply with background checking duties, duties to report
completed relevant employment proceedings and to notify of applicants rejected on
the grounds of estimates of risk arising from background checking. It will be an
offence to fail, without reasonable excuse, to comply with a notice.

Schedule 1 [48] inserts proposed section 43A into the Principal Act. The proposed
section enables an employer to amend or withdraw a notification of relevant
employment proceedings against a person or of the rejection of a person for
employment on the grounds of risk, if the employer determines that the notification
was incorrect or wrongly made.

Schedule 1 [50] omits section 45 of the Principal Act, which provided for the staged
implementation of employment provisions.

Schedule 1 [51] inserts proposed sections 48A and 48B which extend the protection
from liability provisions, and the offences relating to unauthorised disclosure of
information, to the exercise of functions relating to prohibited persons, in addition to
background checking functions.

Other amendments
Schedule 1 [4]–[7] update references to a repealed Act.

Schedule 1 [52] amends section 49 of the Principal Act to extend the period within
which proceedings for offences must be commenced from 6 months to 2 years.

Schedule 1 [54] amends section 53 of the Principal Act to provide for a review of the
Principal Act as soon as possible after 5 years from the date of assent to the proposed
Act.

Schedule 1 [55] amends Schedule 3 to the Principal Act to enable savings and
transitional regulations to be made as a consequence of the enactment of the proposed
Act.

Schedule 1 [56] inserts savings and transitional provisions into Schedule 3 to the
Principal Act as a consequence of the enactment of the proposed Act.

Schedule 2 Amendment of other Acts
Schedule 2 amends the following Acts to replace references to the Child Protection
(Prohibited Employment) Act 1998 with references to the provisions of that Act as
re-enacted in the Principal Act:

Administrative Decisions Tribunal Act 1997
Child Protection (Offenders Registration) Act 2000
Education Act 1990
Industrial Relations Act 1996
Institute of Teachers Act 2004

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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