Working with Children (Criminal Record Checking) Amendment Bill 2022 - Working with Children (Criminal Record Checking) Act 2004
Bill No.81
17 Aug 2022
Legislative Assembly Second Reading - 17 Aug 2022

Western Australia

Working with Children (Criminal

Record Checking) Act 2004

Incorporating the amendments proposed by

the Working with Children (Criminal Record

Checking) Amendment Bill 2022 Pt. 2

(Bill No. 81-1)

page i [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Western Australia

Working with Children (Criminal Record

Checking) Act 2004

Contents

Part 1 — Preliminary

1. Short title 2 2. Commencement 2 3. Principle that best interests of children are

paramount 2 4. Terms used 2 5. Managerial officers of bodies corporate licensed

under Child Care Service Act 2007, status of for

this Act 9 6. Child-related work 9 7. Class 1 offence and Class 2 offence 12 8. Conviction in relation to offence 14 8A. Expunged convictions to be taken to be

non-conviction charges for the purposes of this Act 14 9A. Application of certain provisions to students 15 9B. Education provider not to procure employment for

certain students in child-related employment 17

Part 2 — Assessment notices and

negative notices

Division 1 — Application for assessment notice 9. Application for assessment notice (child-related

employment) 19 10. Application for assessment notice (child-related

business) 20 11. Withdrawal of application for assessment notice 20

Division 2 — Issue of assessment notices and

negative notices 12. Deciding applications for assessment notice 22 13A. Issue of assessment notices and negative notices 26 13. CEO to give notice of intention to issue negative

notice 27 13AA. Interim negative notice 28 14. Duration of assessment notices and negative

notices 30 15. Further assessment notice may be obtained 30

Working with Children (Criminal Record Checking) Act 2004

Contents

page ii [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Division 3 — CEO may require assessment

notice to be applied for 16. CEO may require certain employees to apply for

assessment notice 30 17. CEO may require certain people to apply for

assessment notice 31 17A. Provision of information by conduct review

authority 34 17B. Action based on information received in relation to

conduct review finding or outcome 35 17C. CEO may obtain further information about conduct

review finding or outcome 36 18. CEO may issue negative notice if notice issued by

CEO not obeyed 37

Division 4 — Cancellation of assessment notices

and negative notices 19. Application for cancellation of negative notice 38 20. Cancellation of assessment notice or negative

notice as result of wrong or incomplete

information 40 21A. Cancellation of assessment notices of certain

people not involved in child-related work 41 21B. Cancellation of assessment notice on person’s

request 41 21C. Cancellation of assessment notices of certain

people to whom s. 32 applies 42 21. Issue of notice cancels any previous notice 42

Division 5 — Prohibitions relating to

child-related work 22. Employers not to employ certain people in

child-related employment 42 23. People with negative notice or interim negative

notice not to carry out child-related work 44 24. People without current assessment notice not to

carry out child-related work 44 25. Defences for an offence under s. 24 44

Division 6 — Review by State Administrative

Tribunal 26. Reviewable decisions 46

Part 3 — Changes in criminal record

and criminal record checks

Division 1 — Relevant changes in criminal

record 27. Meaning of relevant change in criminal record and

requirement to give notice of that change 48 28. Pending applications, applicant to notify CEO of

relevant change in criminal history 48

Working with Children (Criminal Record Checking) Act 2004

Contents

page iii [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

29. People employed in child-related employment to

notify CEO of relevant change in criminal record 48 30. People carrying on child-related business to notify

CEO of relevant change in criminal record 49 31. Duties and employment of people with assessment

notice who have relevant change in criminal record 49 32A. Certain applicants for assessment notice to notify

proposed employer of relevant change in criminal

record 50 32. CEO to treat notice of relevant change under s. 29

and 30 as application for assessment notice 50 33. Class 1 offence: pending charge or conviction

prevents child-related work 51

Division 1A — Designated changes in criminal

record 33A. Commissioner may give information about change

in criminal record 51

Division 2 — Criminal record checks 34. CEO may carry out criminal record check 53

Part 3A — Information gathering

and sharing

34A. General power to obtain, use and disclose

information 55 34B. Disclosure of information to employer or proposed

employer 56 34C. Power to require reports from CEO (Justice) 56 34D. Exchange of information with corresponding

authorities 57 34E. Exchange of information under National Disability

Insurance Scheme (Worker Screening) Act 2020 58 34F. Disclosure of information to authorised entities 59 34G. Disclosure of information to Australian Crime

Commission 60 34H. Disclosure of information relevant to protection of

children or other persons 61 34I. Sharing of police information 62

Part 3B — Compliance and

enforcement

Division 1 — Preliminary 34J. Terms used 64

Division 2 — Authorised officers 34K. Designation of authorised officers 65 34L. Identity cards 65

Working with Children (Criminal Record Checking) Act 2004

Contents

page iv [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Division 3 — Powers of authorised officers 34M. Entry to places 65 34N. Powers after entering place 66 34O. Directions to provide information or documents 66 34P. Additional powers for relevant records 68 34Q. Offence to contravene direction 68 34R. Exercise of power may be recorded 69 34S. Assistance and use of force to exercise power 69 34T. Procedure for seizing things 69 34U. Application of Criminal and Found Property

Disposal Act 2006 70

Division 4 — Entry warrants 34V. Application for entry warrant 70 34W. Issue and content of entry warrant 71 34X. Refusal of entry warrant 72 34Y. Effect of entry warrant 72

Division 5 — Additional power to request or

provide information 34Z. Additional power to request information 72 34ZA. Provision of information to justice authorities 73

Part 4 — General

35. False or misleading information 75 35A. Obstruction of authorised officer 75 35B. Impersonation of authorised officer 75 35C. Change in particulars 75 36. Assessment notice to be returned to CEO in certain

cases 77 39. Use and disclosure of information obtained or

created in course of official functions 81 39A. Ability to provide information and protection from

liability 81 40. Protection from personal liability 83 41. Employer to comply with Act despite other laws

etc. 83 43. Liability of partners for certain offences 84 43A. Protection of legal professional privilege 85 44. Evidentiary matters 85 45. Delegation by CEO etc. 86 45A. Delegation by public authority or other body 86 45B. Commencement of proceedings 87 45C. Time for commencement of prosecution 87 45D. Service of documents 88 46. Regulations 88 47. Review of Act 89

Working with Children (Criminal Record Checking) Act 2004

Contents

page v [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 6 — Transitional provisions

Division 1 — Transitional provisions for this

Act 56. Term used: commencement day 90 57. People carrying on a child-related business, when

s. 24(b) applies to 90 58. Volunteers continuing in child-related

employment, when s. 22(6) and 24(a) apply to 91 59. Ministers of religion etc. continuing in

child-related employment, when s. 22(6) and 24(a)

apply to 91 60. Other people in child-related employment, when

s. 22(6) and 24(a) apply to 91 60A. Wilful murder charges and convictions between

1 Jan 2006 and 2 Jul 2008 taken to be relevant

changes in criminal record 92 61. Transitional regulations 93

Division 2 — Transitional provisions for

Working with Children (Criminal Record

Checking) Amendment Act 2022

Subdivision 1 — Preliminary 62. Terms used 94

Subdivision 2 — Classification of offences 63. Current assessment notices 94 64. Pre-commencement assessment applications 95 65. Pre-commencement cancellation applications 95 66. Decision to act under s. 17(3)(d) 96 67. Decision to act under s. 20 96 68. Processes associated with s. 32 97 69. Assessment notice taken to be held while

application pending 97 70. Subsequent issue of negative notice or interim

negative notice 98 71. Proceedings before State Administrative Tribunal

or court 99 72. Rights of review and appeal: related provision 100 73. Rights of review and appeal no longer apply if

application made under s. 19 or 20 101 74. Application of new classification provisions 101

Subdivision 3 — Other provisions 75. Application of amended s. 12 101 76. Processes associated with interim negative notice 102 77. Application of Part 3B 102 78. Disclosure of information by CEO 102 79. Transitional regulations 103

Working with Children (Criminal Record Checking) Act 2004

Contents

page vi [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Schedule 1 — Class 1 offences

Schedule 2 — Class 2 offences

Notes

Compilation table 120 Uncommenced provisions table 121

page 1 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Working with Children (Criminal Record

Checking) Act 2004

An Act —

to provide for procedures for checking the criminal record of

people who carry out, or propose to carry out, child-related

work;

to prohibit people who have been charged with or convicted of

certain offences from carrying out child-related work,

and to provide for related matters.

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 1

page 2 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 1 — Preliminary

1. Short title

This Act may be cited as the Working with Children (Screening)

(Criminal Record Checking) Act 2004.

[Section 1 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 4.]

2. Commencement

(1) This Act comes into operation on a day fixed by proclamation.

(2) Different days may be fixed under subsection (1) for different

provisions.

3. Principle that best interests of children are paramount

In performing a function under this Act, the CEO or the State

Administrative Tribunal is to regard the best interests of

children as the paramount consideration.

4. Terms used

In this Act, unless the contrary intention appears —

another jurisdiction means a jurisdiction other than this State

Western Australia (including jurisdictions outside Australia);

approved means approved by the CEO;

assessment notice means a written notice issued by the CEO

under section 12(1)(a);

authorised officer means an officer designated under

section 34K for the purposes of this Act or for the purposes of

the provision in which the term is used;

CEO means the chief executive officer of the Department;

CEO (Justice) means the chief executive officer of the

department of the Public Service principally assisting in the

administration of the Sentence Administration Act 2003 Part 8;

charge means a non-conviction charge or a pending charge;

child means a person who is under 18 years of age;

child care service means —

(a) an education and care service as defined in the

Education and Care Services National Law (Western

Australia) section 5(1); or

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 4

page 3 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) a child care service as defined in the Child Care Services

Act 2007 section 4;

child-related business means child-related work carried out by

an individual for gain or reward otherwise than in the course of

child-related employment;

child-related employment means —

(a) child-related work carried out by an individual under a

contract of employment or training contract (whether

written or unwritten); or

(b) child-related work carried out on a voluntary basis by an

individual under an agreement (whether written or

unwritten) with another person; or

(c) child-related work carried out by an individual as a

minister of religion or in any other capacity for the

purposes of a religious organisation; or

(d) child-related work carried out by a student with another

person that may or must be undertaken as part of the

student’s course of study;

child-related work has the meaning given to that term in

section 6;

Class 1 offence has the meaning given to that term in

section 7(1);

Class 2 offence has the meaning given to that term in

section 7(2);

Class 3 offence means an offence (including an offence under a

law of another jurisdiction) that is not a Class 1 offence or a

Class 2 offence;

Commissioner means the person holding or acting in the office

of Commissioner of Police under the Police Act 1892;

conduct review authority means a person or body, or a person

or body of a class, prescribed by the regulations for the purposes

of this definition;

conduct review finding or outcome means —

(a) a finding of a kind prescribed by the regulations; or

(b) an outcome of a kind prescribed by the regulations;

contact includes —

(a) any form of physical contact; and

(b) any form of oral communication, whether face to face,

by telephone or otherwise; and

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 4

page 4 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(c) any form of electronic communication,

but does not include contact in the normal course of duties

between an employer and an employee or between employees of

the same employer;

conviction has the meaning given to that term in section 8;

corresponding authority means a person or body in another

jurisdiction that performs functions in the operation or

administration of a corresponding law that substantially

correspond to the functions of the CEO under this Act;

corresponding law means a law of another State or a Territory

that —

(a) contains provisions that substantially correspond with

the provisions of this Act; and

(b) is prescribed by the regulations as a corresponding law

for the purposes of this Act;

criminal record, in relation to a person, means —

(a) every conviction of the person for an offence in this

State of an offence, in Western Australia or another

jurisdiction; and

(b) every charge made against the person for an offence in

this State offence, in Western Australia or another

jurisdiction;

criminal record check means the procedures set out in

section 34 to enable the CEO to determine whether a person has

a criminal record and, if so, to obtain details of that criminal

record;

criminal records agency means —

(a) the Commissioner; or

(b) the Commissioner of the Australian Federal Police; or

(c) the Commissioner (however designated) of the police

force of another jurisdiction; or

(d) a person or body that is —

(i) established under a law of another State, a

Territory or the Commonwealth; and

(ii) prescribed by the regulations for the purposes of

this definition;

Department means the department of the Public Service

principally assisting the Minister in the administration of

this Act;

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 4

page 5 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

education provider means —

(a) a university established or continued under an Act of

this State, the Commonwealth, another State or a

Territory; or

(b) the university company as defined in the Bond

University Act 1987 (Queensland) section 2; or

(c) a college or other vocational and training institution as

defined in the Vocational Education and Training

Act 1996 section 5(1); or

(d) a school specified under the Vocational Education and

Training Act 1996 section 6(1); or

(e) an authorised non-university institution, a recognised

Australian university or a recognised overseas university

as defined in the Higher Education Act 2004 section 3;

or

(f) any other provider of an educational or vocational

course prescribed by the regulations for the purposes of

this paragraph;

educational institution for children includes any school as

defined in the School Education Act 1999 but does not

include —

(a) an educational institution that is recognised or

established as a university under a written law; or

(b) an educational institution prescribed by the regulations

for the purposes of this paragraph,

even if that university or institution has a student who has not

reached 18 years of age;

external government agency means —

(a) a government department established, constituted or

continued under a law of another jurisdiction; or

(b) a body (whether incorporated or not), or the holder of an

office, post or position, that —

(i) is established, constituted or continued for a

public purpose under a law of another

jurisdiction; and

(ii) under the authority of a law of another

jurisdiction, performs a statutory function on

behalf of the government of that jurisdiction;

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 4

page 6 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

government agency means —

(a) a department of the Public Service; or

(b) a body (whether incorporated or not), or the holder of an

office, post or position, that —

(i) is established, constituted or continued for a

public purpose under a written law; and

(ii) under the authority of a written law, performs a

statutory function on behalf of this State;

or

(c) an external government agency;

interim negative notice means a written notice issued by the

CEO under section 13AA(2) or (3);section 13;

negative notice means a written notice issued by the CEO under

section 12(1)(b);

non-conviction charge means a charge of an offence that has

been disposed of by a court otherwise than by way of a

conviction, and has a meaning affected by section 8A;

officer of the Department means a person employed in, or

engaged by, the Department whether as a public service officer

under the Public Sector Management Act 1994, under a contract

for services or otherwise;

outcome includes —

(a) the suspension, cancellation or termination of a licence,

registration, authority or other form of authorisation; and

(b) the making of a determination or decision, or the issuing

of a notice, order or other instrument, that prohibits,

restricts, regulates or controls the conduct of a particular

activity, or the performance of particular work, by a

person;

parent, of a child, means a person —

(a) who is the father, mother, stepfather or stepmother of the

child; or

(b) who at law has responsibility for —

(i) the long-term care, welfare and development of

the child; or

(ii) the day to day care, welfare and development of

the child;

or

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 4

page 7 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(c) who is in a de facto relationship with a person referred

to in paragraph (a) or (b); or

(d) who is specified as the child’s prospective adoptive

parent under the Adoption Act 1994 section 20(b);

pending charge means a charge of an offence that has not yet

been disposed of by a court;

public authority means —

(a) a department of the Public Service; or

(b) a body (whether incorporated or not), or the holder of an

office, post or position, that —

(i) is established, constituted or continued for a

public purpose under a written law; and

(ii) under the authority of a written law, performs a

statutory function on behalf of this State;

or

(c) an entity established by or under the Health Practitioner

Regulation National Law (Western Australia); or

(d) any other person or body, or person or body of a class,

prescribed by the regulations for the purposes of this

definition;

relative, in relation to a child, means —

(a) the child’s —

(i) parent, grandparent or other ancestor;

(ii) sibling;

(iii) uncle or aunt;

(iv) cousin;

(v) spouse or de facto partner,

whether the relationship is established by, or traced

through, consanguinity, marriage, a de facto

relationship, a written law or a natural relationship; or

(b) in the case of a child who is a descendant of Aboriginal

people of Australia — a person regarded under the

customary law or tradition of the child’s community as

the equivalent of a person mentioned in paragraph (a); or

(c) in the case of a child who is a descendant of the

indigenous inhabitants of the Torres Strait Islands — a

person regarded under the customary law or tradition of

the Torres Strait Islands as the equivalent of a person

mentioned in paragraph (a);

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 4

page 8 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

relevant conduct, in relation to a conduct review finding or

outcome, means the conduct that gave rise to the finding or

outcome;

specified, in relation to a notice, means specified in the notice;

student means a person who —

(a) is undertaking an educational or vocational course of

study with an education provider; and

(b) may or must undertake child-related work as part of that

course;

work includes practical training undertaken as part of an

educational or vocational course;course.

WWC purpose

(a) means a purpose that is for, or connected with, the

operation or administration of, or compliance with, this

Act; and

(b) includes any of the following purposes —

(i) verifying the identity of a person who is, or who

has at any time been, an applicant for an

assessment notice under this Act;

(ii) considering and deciding an application for an

assessment notice under this Act;

(iii) making a decision under section 12 because of

the operation of section 17(3)(d) or 17B(2)(b);

(iv) considering and deciding an application for a

negative notice to be cancelled;

(v) acting under section 20;

(vi) acting after the CEO has been given a notice that

the CEO must treat under section 32(1) as an

application for an assessment notice;

(vii) ongoing monitoring of information about a

person’s criminal record while the CEO is

proceeding as described in subparagraph (ii),

(iii), (iv), (v) or (vi) in relation to the person;

(viii) ongoing monitoring of information about a

person’s criminal record after an interim negative

notice has been issued to the person;

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 5

page 9 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ix) ongoing monitoring of information about a

person’s criminal record while the person has a

current assessment notice for the purpose of

determining whether the person should continue

to hold the assessment notice;

(x) taking any action in connection with a matter that

is the subject of proceedings on an application

under section 26.

[Section 4 amended: No. 19 of 2007 s. 71; No. 7 of 2010 s. 4;

No. 11 of 2012 s. 52; No. 20 of 2018 s. 32; No. 48 of 2020 s. 88;

Working with Children (Criminal Record Checking)

Amendment Bill 2022 cl. 5.]

5. Managerial officers of bodies corporate licensed under Child

Care Service Act 2007, status of for this Act

(1) In this section —

managerial officer, means —

(a) a managerial officer, as defined in the Child Care

Services Act 2007 section 3, in relation to a body

corporate that holds a licence under that Act; or

(b) a person with management or control, as defined in the

Education and Care Services National Law (Western

Australia) section 5(1), in relation to an education and

care service under that Law.

(2) Despite any other provision of this Act, a person who is a

managerial officer —

(a) is taken for the purposes of this Act to carry on a

child-related business; and

(b) if the person does not carry out any child-related work as

a managerial officer — is taken for those purposes to

carry out child-related work in connection with a child

care service.

[Section 5 amended: No. 19 of 2007 s. 72; No. 11 of 2012

s. 53.]

6. Child-related workTerm used: child-related work

(1) Subject to this section, subsection (3), work is child-related

work if —

(a) the usual duties of the work involve, or are likely to

involve, contact with a child in connection with —

(i) a child care service; or

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 6

page 10 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ii) a community kindergarten registered under the

School Education Act 1999 Part 5; or

(iii) an educational institution for children; or

(iv) a coaching or private tuition service of any kind,

but not including an informal arrangement

entered into for private or domestic purposes; or

(v) an arrangement for the accommodation or care of

children, whether in a residential facility or

private residence, but not including an informal

arrangement made by a parent of the child

concerned or accommodation or care provided by

a relative of the child; or

(vi) a placement arrangement or secure care

arrangement under the Children and Community

Services Act 2004; or

(vii) the performance by an officer, as defined in the

Children and Community Services Act 2004

section 3, of a function given to the officer under

that Act; or

(viii) a detention centre, as defined in the Young

Offenders Act 1994 section 3; or

(ix) a community child health service; or

(x) a counselling or other support service; or

(xi) a religious organisation; or

(xii) a club, association or movement (including of a

cultural, recreational or sporting nature and

whether incorporated or not) with a significant

membership or involvement of children, but not

including an informal arrangement entered into

for private or domestic purposes; or

(xiii) a ward of a public or private hospital in which

children are ordinarily patients; or

(xiv) a baby sitting or child minding service, but not

including an informal arrangement entered into

for private or domestic purposes; or

(xv) an overnight camp, regardless of the type of

accommodation or how many children are

involved; or

(xvi) a transport service specifically for children; or

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 6

page 11 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(xvii) a school crossing service, being a service

provided to assist children to cross roads on their

way to or from school; or

(xviii) a children’s entertainment or party service; or

(xix) any other work of a kind prescribed by the

regulations;

or

(b) the work is the exercise or performance by a person of a

power or duty delegated to the person by the CEO under

section 45.

(2) For the purposes of subsection (1), contact with a child does not

include contact —

(a) between a person and a child who is employed by the

person; or

(b) between a person and a child who are both employed by

the same person,

if the contact is lawful and arises in the normal course of the

child’s employment.

(3) Subsection (1) does not apply to work that is carried out on a

voluntary basis by a child unless the work is carried out in

circumstances, or by a child of a class of children, prescribed by

the regulations.

(4) Subsection (1) does not apply to work that is carried out in

circumstances, or by a person of a class of persons, prescribed

by the regulations.

(5) Regulations made for the purposes of subsection (3) or (4) may,

without limitation, prescribe a class of children or a class of

persons (as the case requires) by reference to criminal record

checks or other forms of screening (however described) made

under another Act prescribed by the regulations.

(3) Subsection (1) does not apply to work that is carried out —

(a) on a voluntary basis by a child; or

(b) in circumstances, or by a person, prescribed by the

regulations.

(4) Without limiting subsection (3)(b), the regulations may

prescribe a person for the purposes of that provision by

reference to a criminal record check (however described) made

in respect of the person —

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 7

page 12 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(a) under another Act prescribed by the regulations; or

(b) as prescribed by the regulations.

[Section 6 amended: No. 49 of 2010 s. 23; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 6.]

7. Class 1 offence and Class 2 offence

(1) A Class 1 offence is —

(a) an offence against a provision listed in Schedule 1 (if the

offence complies with any condition specified in that

Schedule or prescribed by the regulations); or

(b) an offence under a law of this State or another

jurisdiction prescribed by the regulations to be a Class 1

offence; or

(c) an offence under a law of another jurisdiction the

elements of which, if they had occurred in this State,

would have constituted an offence of a kind referred to

in this subsection; or

(d) an offence committed, or alleged to have been

committed, before 1 January 2006 that is an offence of a

kind referred to in this subsection; or

(e) an offence of attempting, or of conspiracy or incitement,

to commit an offence of a kind referred to in

paragraphs (a) to (d).

(2) A Class 2 offence is —

(a) an offence against a provision listed in Schedule 2 (if the

offence complies with any condition specified in that

Schedule or prescribed by the regulations); or

(b) an offence under a law of this State or another

jurisdiction prescribed by the regulations to be a Class 2

offence; or

(c) an offence under a law of another jurisdiction the

elements of which, if they had occurred in this State,

would have constituted an offence of a kind referred to

in this subsection; or

(d) an offence committed, or alleged to have been

committed, before 1 January 2006 that is an offence of a

kind referred to in this subsection; or

(e) an offence of attempting, or of conspiracy or incitement,

to commit an offence of a kind referred to in

paragraphs (a) to (d).

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 7

page 13 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(3) For the purposes of Schedules 1 and 2, an offence falls within

the ambit of this subsection if —

(a) the victim of the offence is a child who has reached

14 years of age; and

(b) the age difference between the victim and the offender

does not exceed 5 years.

[Section 7 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 7.]

7. Terms used: Class 1 offence, Class 2 offence

(1) A Class 1 offence is —

(a) an offence against a provision listed in Schedule 1 (if the

offence complies with any condition specified in that

Schedule relating to the age of the victim);

(b) an offence under a law of another jurisdiction the

elements of which, if they had occurred in Western

Australia, would have constituted an offence of a kind

referred to in this subsection;

(c) an offence under a law of another jurisdiction that is

prescribed by the regulations to be a Class 1 offence;

(d) an offence that, at the time it was committed —

(i) was a Class 1 offence for the purposes of this

Act; or

(ii) in the case of an offence committed before the

commencement of this section — was an offence

of a kind referred to in this subsection.

(2) A Class 2 offence is —

(a) an offence against a provision listed in Schedule 2 (if the

offence complies with any condition specified in that

Schedule relating to the age of the victim);

(b) an offence under a law of another jurisdiction the

elements of which, if they had occurred in Western

Australia, would have constituted an offence of a kind

referred to in this subsection;

(c) an offence under a law of another jurisdiction that is

prescribed by the regulations to be a Class 2 offence;

(d) an offence of attempting, or of conspiracy or incitement,

to commit an offence of a kind referred to in this

subsection or subsection (1);

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 8

page 14 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(e) an offence that, at the time it was committed —

(i) was a Class 2 offence for the purposes of this

Act; or

(ii) in the case of an offence committed before the

commencement of this section — was an offence

of a kind referred to in this subsection.

8. Conviction in relation to offenceTerm used: conviction

(1) For the purposes of this Act, a reference to a conviction in

relation to an offence committed by a person is a reference to

any of the following —

(a) a court making a formal finding of guilt in relation to the

offence;

(b) a court convicting the person of the offence, if there has

been no formal finding of guilt before conviction;

(c) a court accepting a plea of guilty from the person in

relation to the offence;

(d) a court acquitting the person following a finding under

The Criminal Code section 27 that the person is not

guilty of the offence on account of unsoundness of mind

or an acquittal following an equivalent finding under the

laws of another jurisdiction.

(2) For the purposes of this Act, a reference to a conviction includes

a reference to a conviction that is a spent conviction.

(3) For the purposes of subsection (2), an offence becomes spent if,

under a law in any jurisdiction, the person concerned is

permitted not to disclose the fact that the person he or she was

convicted or found guilty of the offence.

(4) A reference to a conviction in this Act does not include a

reference to a conviction that is subsequently quashed or set

aside by a court.

[Section 8 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 8.]

8A. Expunged convictions to be taken to be non-conviction

charges for the purposes of this Act

(1) For the purposes of this Act, a reference to a non-conviction

charge includes a reference to an expunged conviction, as that

term is defined in the Historical Homosexual Convictions

Expungement Act 2018 section 3(1).

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 9A

page 15 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) Subsection (1) applies despite anything in the Historical

Homosexual Convictions Expungement Act 2018.

[Section 8A inserted: No. 20 of 2018 s. 33.]

9A. Application of certain provisions to studentsStudents,

application of certain provisions to

(1) This section applies in relation to a student.

(2) If this section applies —

(a) section 9(3)(b) does not apply and the approved form

may include provision for information about the

student’s education provider or the person who employs,

or proposes to employ, the student in child-related

employment; and

(aa) section 11(3A)(a) applies as if —

(i) the reference to an employer or proposed

employer included a reference to the student’s

education provider; and

(ii) the reference to employ or propose to employ the

applicant in child-related employment included a

reference to the student being employed or

proposed to be employed in child-related

employment as part of a course with an education

provider;

and

(a) section 9(3)(b) does not apply and the approved form is

to include provision for a student’s education provider or

employer to certify that the student is, or proposes to be,

employed in child-related employment; and

(b) section 11(3) applies as if the reference to the other

person were a reference to the other person or the

student’s education provider; and

(c) sections 13A(1)(b), 13AA(4) 13(3) and 20(6) apply as

if —

(i) the reference to child-related employment by

another person were a reference to employment

by another person as part of a course with an

education provider; and

(ii) the reference to the other person were a reference

to the other person or the student’s education

provider;

and

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 9A

page 16 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(d) section 16 applies as if section 16(1) were deleted and

the following subsection were inserted:

(1) If a person or a student’s education provider (the

employer) who employs a student or procures

employment for the student (the employee) in

child-related employment —

(a) reasonably suspects that the employee has been

charged with or convicted of an offence; and

(b) reasonably believes that the charge or

conviction makes it inappropriate for the

employee to continue to carry out child-related

work,

the employer may give written notice to the CEO of the

suspicion and belief and the grounds on which the

suspicion and belief are held.

and

(e) section 18(2) applies in relation to a student employed in

child-related employment as part of a course conducted

by an education provider as if —

(i) the reference to the person’s employer were a

reference to the person’s employer or education

provider; and

(ii) the reference to the employer were a reference to

the employer or the person’s education provider;

and

(f) section 29(1) applies to a student employed in

child-related employment as part of a course conducted

by an education provider so that the student is under an

obligation to give the student’s his or her education

provider written notice of a relevant change in the

student’s criminal record as soon as is practicable after

the change occurs; and

(g) section 29(2) applies in relation to a notice received by

the CEO from a student employed in child-related

employment as part of a course conducted by an

education provider so that the CEO may advise the

student’s education provider of the relevant change in

the student’s criminal record disclosed in the notice; and

(h) section 31(3) applies to a student offered child-related

employment as part of a course conducted by an

education provider so that the student is under an

Working with Children (Criminal Record Checking) Act 2004

Preliminary Part 1

s. 9B

page 17 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

obligation to give the CEO and the student’s his or her

education provider written notice of the things referred

to in paragraphs (a) and (b) of that subsection; and

subsection.

(i) section 34B(1) applies as if —

(i) a reference to an employer or proposed employer

included a reference to the student’s education

provider; and

(ii) a reference to employ or propose to employ a

person in child-related employment included a

reference to the student being employed or

proposed to be employed in child-related

employment as part of a course with an education

provider.

[Section 9A inserted: No. 7 of 2010 s. 5; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 9.]

9B. Education provider not to procure employment for certain

students in child-related employment

(1) An education provider must not, for the purpose of enabling a

student to complete the syllabus for a course conducted by the

provider, procure employment for the student in child-related

employment if —

(a) the education provider —

(i) is aware of a Class 1 offence or a Class 2 offence

of which the student has been convicted; or

(ii) is aware that the student has a pending charge in

respect of a Class 1 offence or a Class 2 offence;

and

(b) the student does not have a current assessment notice

and has not made an application for an assessment

notice that is pending.

Penalty for this subsection: Penalty: a fine of $60 000.

(2) An education provider must not, for the purpose of enabling a

student to complete the syllabus for a course conducted by the

provider, procure employment for the student in child-related

employment if the education provider is aware that a negative

notice or an interim negative notice has been issued to the

student and is current.

Penalty for this subsection: Penalty: a fine of $60 000.

Working with Children (Criminal Record Checking) Act 2004

Part 1 Preliminary

s. 9B

page 18 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(3) An education provider must not, for the purpose of enabling a

student to complete the syllabus for a course conducted by the

provider, procure child-related employment for the student in

connection with a child care service if the student does not have

a current assessment notice and has not made an application for

an assessment notice that is pending.

Penalty for this subsection: Penalty: a fine of $12 000.

(4) An education provider must not, for the purpose of enabling a

student to complete the syllabus for a course conducted by the

provider, procure child-related employment for the student if the

education provider is aware that the student has withdrawn an

application for an assessment notice.

Penalty for this subsection: Penalty: a fine of $12 000.

(5) An education provider must not, for the purpose of enabling a

student to complete the syllabus for a course conducted by the

provider, procure child-related employment for the student with

a person (an employer) if —

(a) the student has previously been employed by the

employer in child-related employment for the purpose of

enabling the student to complete the syllabus for that

course for more than 5 days in a calendar year; and

(b) the student does not have a current assessment notice

and has not made an application for an assessment

notice that is pending.

Penalty for this subsection: Penalty: a fine of $12 000.

(6) Subsection (5) does not apply in relation to the procurement of

child-related employment for a student if subsection (1), (2), (3)

or (4) applies in relation to that procurement of employment.

(7) A person charged with an offence under this section may be

convicted of another offence under this section if that offence is

established by the evidence.

[Section 9B inserted: No. 7 of 2010 s. 5; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 46.]

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Application for assessment notice Division 1

s. 9

page 19 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 2 — Assessment notices and negative notices

Division 1 — Application for assessment notice

9. Application for assessment notice (child-related

employment) Assessment notice (child-related employment),

application for

(1) A person who is, or is proposed to be, employed in child-related

employment by another person (the employer) may apply to the

CEO for an assessment notice.

(2) The application is to be —

(a) in the approved form; and

(b) signed by the applicant; and

(c) accompanied by the fee prescribed by the regulations.

(3) The approved form must include provision for —

(a) identifying information to be given about the applicant;

and

(b) information about the person who employs, or proposes

to employ, the applicant in child-related employment.

(3A) The approved form may require the provision of any other

information the CEO thinks fit.

(3) The approved form is to include provision for —

(a) identifying information to be given about the applicant;

and

(b) certification by the employer that the employer employs,

or proposes to employ, the applicant in child-related

employment.

(4) On receiving the application, the CEO may ask the applicant, by

written notice or otherwise, to provide any further information

or documents that the CEO reasonably needs to establish the

applicant’s identity or for a proper consideration of the

application.

(5) The regulations may prescribe other requirements that apply in

relation to an application or the consideration of an application.

[Section 9 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 10.]

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 1 Application for assessment notice

s. 10

page 20 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

10. Application for assessment notice (child-related business)

Assessment notice (child-related business), application for

(1) A person who carries on, or proposes to carry on, a child-related

business may apply to the CEO for an assessment notice.

(2) The application is to be —

(a) in the approved form; and

(b) signed by the applicant; and

(c) accompanied by the fee prescribed by the regulations.

(3) The approved form is to include provision for identifying

information to be given about the applicant.

(3A) The approved form may require the provision of any other

information the CEO thinks fit.

(4) On receiving the application, the CEO may ask the applicant, by

written notice or otherwise, to provide any further information

or documents that the CEO reasonably needs to establish the

applicant’s identity or for a proper consideration of the

application.

(5) The regulations may prescribe other requirements that apply in

relation to an application or the consideration of an application.

[Section 10 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 11.]

11. Withdrawal of application for assessment notice

(1) An applicant for an assessment notice may withdraw the

application at any time before the assessment notice is issued to

the applicant.

(2A) Subsection (1) does not apply if the CEO has issued an interim

negative notice to the applicant that is current.

(2) The applicant is taken to have withdrawn the application if —

(a) the CEO cannot establish with certainty the applicant’s

identity, that the applicant is, or proposes to be,

employed in child-related employment by another

person or that the applicant carries on, or proposes to

carry on, a child-related business (as the case may be);

and

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Application for assessment notice Division 1

s. 11

page 21 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) the CEO gives the applicant a written notice —

(i) that asks the applicant to provide, within a

reasonable specified time, specified information

or documents that the CEO reasonably needs to

establish any matter referred to in paragraph (a)

that is relevant to the application; and

(ii) that informs the applicant that, if the applicant

does not comply with the request, the applicant’s

application will be taken to have been

withdrawn;

and

(c) the applicant does not comply with the notice within the

specified time; and

(d) the CEO gives the applicant a written notice stating that

the applicant is taken to have withdrawn the application.

(3A) In addition, the applicant is taken to have withdrawn the

application if —

(a) an employer or proposed employer identified by the

applicant for the purposes of the application fails, within

a period determined by the CEO to be reasonable in the

circumstances, to verify that they employ or propose to

employ the applicant in child-related employment; and

(b) the CEO gives the applicant a written notice that informs

the applicant that if a verification of the kind referred to

in paragraph (a) is not provided to the CEO within a

reasonable specified period then the applicant’s

application will be taken to have been withdrawn; and

(c) the verification is not provided to the CEO within the

specified period under paragraph (b); and

(d) the CEO gives the applicant a written notice stating that

the applicant is taken to have withdrawn the application.

(3) If —

(a) the applicant is a person who is, or is proposed to be,

employed in child-related employment by another

person; and

(b) the applicant withdraws the application or the CEO

gives the applicant a notice under subsection (2)(d)

or (3A)(d), subsection (2)(d),

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 2 Issue of assessment notices and negative notices

s. 12

page 22 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

the CEO is to give the other person a written notice stating that

the applicant has withdrawn, or is taken to have withdrawn, the

application, as the case requires.

(4) This section does not apply to an application taken to be made

under section 9 or 10 in accordance with section 17(3)(d)(i)

or 17B(2)(b)(i).section 17(3)(d)(i).

[Section 11 amended: No. 7 of 2010 s. 6; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 12.]

Division 2 — Issue of assessment notices and negative notices

12. Deciding applications for assessment notice

(1) The CEO is to decide an application under section 9 or 10 in

accordance with this section —

(a) by issuing an assessment notice to the applicant; or

(b) by issuing a negative notice to the applicant.

(2) The CEO must not decide the application unless the CEO has —

(a) made a criminal record check in respect of the applicant;

and

(b) checked whether notice of a conduct review finding or

outcome has been received under section 17A(3) in

respect of the applicant.

(2) The CEO is not to decide the application unless the CEO has

made a criminal record check in respect of the applicant.

(3) If one or more conditions specified in the Table apply in relation

to an applicant, the CEO is to decide the application in

accordance with —

(a) if any one condition applies, the applicable provision

opposite that condition; or

(b) if more than one condition applies, the applicable

provision opposite the condition that has the higher or

highest item number in the Table.

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Issue of assessment notices and negative notices Division 2

s. 12

page 23 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Table

Item Condition Applicable

provision

1. The CEO is not aware of —

(a) any offence of which the applicant has

been convicted; or

(b) any charge of an offence against the

applicant; orapplicant.

(c) any conduct review finding or outcome.

s. 12(4)

2. The CEO is aware that the applicant has a

non-conviction charge in respect of a

Class 3 offence.

s. 12(4)

2A. The CEO is aware that the applicant is, or

has been, the subject of a conduct review

finding or outcome other than as a result of a

notice under section 17A(3). s. 12(4)

3. The CEO is aware of a pending charge

against the applicant in respect of a Class 3

offence, other than as a result of —

(a) a notice under section 16(1) or 17(1);

or

(b) designated information as defined in

section 17(1A). s. 12(4)

3A. The CEO is aware that the applicant is, or

has been, the subject of a conduct review

finding or outcome as a result of a notice

under section 17A(3). s. 12(5)

4. The CEO is aware of a pending charge

against the applicant in respect of a Class 3

offence as a result of —

(a) a notice under section 16(1) or 17(1);

or

(b) designated information as defined in

section 17(1A). s. 12(5)

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 2 Issue of assessment notices and negative notices

s. 12

page 24 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Item Condition Applicable

provision

3. The CEO is aware, not as a result of a notice

under section 16(1) or 17(1), of a pending

charge against the applicant in respect of a

Class 3 offence.

s. 12(4)

4. The CEO is aware, as a result of a notice

under section 16(1) or 17(1), of a pending

charge against the applicant in respect of a

Class 3 offence.

s. 12(5)

5. The CEO is aware of a Class 3 offence of

which the applicant has been convicted.

s. 12(5)

6. The CEO is aware that the applicant has a

non-conviction charge in respect of a

Class 1 offence or a Class 2 offence.

s. 12(5)

7. The CEO —

(a) is aware of a Class 3 offence of which

the applicant has been convicted; and

(b) reasonably believes that in the course of

committing the offence the applicant

performed an indecent act.

s. 12(6)

8. The CEO is aware of a pending charge

against the applicant in respect of a Class 1

offence or a Class 2 offence.

s. 12(6)

9. The CEO is aware of a Class 2 offence of

which the applicant has been convicted.

s. 12(6)

9A. The CEO is aware of a pending charge

against the applicant in respect of a Class 1

offence that was allegedly committed by the

applicant when a child. s. 12(6)

10. The CEO is aware of a Class 1 offence

(committed by the applicant when a child)

of which the applicant has been convicted.

s. 12(6)

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Issue of assessment notices and negative notices Division 2

s. 12

page 25 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Item Condition Applicable

provision

10A. The CEO is aware —

(a) of a Class 1 offence (that was not

committed by the applicant when a

child) of which the applicant has been

convicted; and

(b) that the applicant has been granted a

pardon in respect of that offence. s. 12(6)

10B. The CEO is aware of a pending charge

against the applicant in respect of a Class 1

offence that was not allegedly committed by

the applicant when a child. s. 12(7)

11. The CEO is aware of a Class 1 offence (that

was not committed by the applicant when a

child) of which the applicant has been

convicted, other than where the applicant

has been granted a pardon in respect of that

offence.convicted.

s. 12(7)

(4) If this subsection applies, the CEO is to issue an assessment

notice to the applicant.

(5) If this subsection applies, the CEO is to issue an assessment

notice to the applicant unless the CEO is satisfied that, because

of the particular circumstances of the case, a negative notice

should be issued to the applicant.

(6) If this subsection applies, the CEO is to issue a negative notice

to the applicant unless the CEO is satisfied that, because of the

exceptional circumstances of the case, an assessment notice

should be issued to the applicant.

(7) If this subsection applies, the CEO is to issue a negative notice

to the applicant.

(8) If subsection (5) or (6) applies in respect of an offence or a

conduct review finding or outcome, the CEO must decide

whether the CEO is satisfied in relation to the particular or

exceptional circumstances of the case, offence, the CEO is to

decide whether he or she is satisfied in relation to the particular

or exceptional circumstances of the case having regard to —

(a) the best interests of children; and children;

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 2 Issue of assessment notices and negative notices

s. 13A

page 26 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) when the offence was committed or is alleged to have

been committed or the relevant conduct occurred or is

alleged to have occurred; and committed;

(c) the age of the applicant when the offence was committed

or is alleged to have been committed or the relevant

conduct occurred or is alleged to have occurred; and

committed;

(d) the nature of the offence or relevant conduct and any

relevance it has to child-related work; and

(e) the effect of future conduct by the applicant in relation

to a child if that future conduct were the same or similar

to conduct the subject of —

(i) any offence committed by the applicant; or

(ii) any charge against the applicant; or applicant;

(iii) any conduct review finding or outcome in

relation to the applicant;

and

(f) any information given by the applicant in, or in relation

to, the application; and

(g) anything else that the CEO reasonably considers

relevant to the decision.

[Section 12 inserted: No. 7 of 2010 s. 7; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 13.]

13A. Issue of assessment notices and negative notices

(1) On deciding the application —

(a) the CEO is to issue the assessment notice or the negative

notice, as the case requires, to the applicant; and

(b) if the CEO is aware that the applicant that applicant is,

or is proposed to be, employed in child-related

employment by another person, the CEO must —

(i) if an assessment notice is issued — give details

contained in the assessment notice to the other

person in the manner or form the CEO thinks fit

(including by giving a copy of the assessment

notice to the other person); and

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Issue of assessment notices and negative notices Division 2

s. 13

page 27 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ii) if a negative notice is issued — give a copy of

the negative notice to the other person.

person — the CEO is to give a copy of the notice to the

other person.

(2) When a negative notice is issued to an applicant, the CEO is to

provide with it a written notice that —

(a) states the reasons for the CEO’s decision on the

application; and

(b) states that the applicant may, subject to section 26(3A),

apply to the State Administrative Tribunal, within

28 days after the date of the negative notice, to have the

decision reviewed; and

(c) explains how the application for the review is made.

[Section 13A inserted: No. 7 of 2010 s. 7; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 14.]

13. CEO to give notice of intention to issue negative notice

(1) If the CEO proposes or is required to decide an application

under section 12 by issuing a negative notice to the applicant,

the CEO must give the applicant a written notice that —

(a) informs the applicant of the proposal or requirement;

and

(b) states the information about —

(i) the applicant’s criminal record of which the CEO

is aware; and

(ii) any conduct review finding or outcome relating

to the applicant of which the CEO is aware as a

result of a notice under section 17A(3);

and

(c) invites the applicant to make a submission to the CEO,

in writing or in another form approved by the CEO,

within a specified time about the information and about

the applicant’s suitability to be issued with an

assessment notice.

(2) If the information stated in a notice under subsection (1) about

an applicant’s criminal record includes a Class 1 offence (other

than a Class 1 offence committed or allegedly committed by the

applicant when a child) of which the applicant has been

convicted, or for which the applicant has a pending charge, the

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 2 Issue of assessment notices and negative notices

s. 13AA

page 28 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

applicant may make a submission to the CEO under this section

only if the applicant reasonably believes that the applicant’s

criminal record does not include that conviction or charge.

(3) The specified time referred to in subsection (1)(c) must be

reasonable and, in any case, at least 28 days after the CEO gives

the applicant the notice.

(4) Subsection (2) does not apply if the applicant has been granted a

pardon in respect of the Class 1 offence.

(5) Before deciding the application, the CEO must consider any

submission made by the applicant within the specified time.

[Section 13 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 15.]

13AA. Interim negative notice

(1) Subsections (2) and (3) apply in relation to a person if

the CEO —

(a) has received an application for an assessment notice

made by the person and the application is pending; or

(b) has decided to act under section 17(3)(d) or 17B(2)(b) in

respect of the person; or

(c) is acting under section 20 in respect of the person if the

correct notice that would be substituted is a negative

notice; or

(d) is given a notice that the CEO must treat under

section 32(1) as an application by the person for an

assessment notice.

(2) The CEO may issue an interim negative notice to the person if

the CEO is of the opinion that there is a reasonable likelihood

that the circumstances will result in a negative notice being

issued to the person.

(3) The CEO must issue an interim negative notice to the person if

the CEO is aware that the person —

(a) has been convicted of a Class 1 offence (other than a

Class 1 offence committed by the person when a child or

in respect of which the person has been granted a

pardon); or

(b) has a pending charge in respect of a Class 1 offence

(other than a Class 1 offence allegedly committed by the

person when a child).

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Issue of assessment notices and negative notices Division 2

s. 13

page 29 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(4) If the CEO is aware that the person to whom an interim negative

notice is issued is employed, or is proposed to be employed, in

child-related employment by another person, the CEO must give

a copy of the interim negative notice to the other person.

(5) An interim negative notice ceases to have effect when an

assessment notice or negative notice is issued to the person.

[Section 13AA inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 15.]

13. Intended issue of negative notice, CEO to notify applicant of

etc.; interim negative notices, issue of

(1) If the CEO proposes or is required to decide an application

under section 12 by issuing a negative notice to the applicant —

(a) the CEO is to give the applicant a written notice that —

(i) informs the applicant of the proposal or

requirement; and

(ii) states the information about the applicant’s

criminal record of which the CEO is aware; and

(iii) invites the applicant to make a submission to the

CEO, in writing or in another form approved by

the CEO, within a specified time about the

information and about the applicant’s suitability

to be issued with an assessment notice;

and

(b) the CEO may issue an interim negative notice to the

applicant.

(2) If the CEO is aware of a Class 1 offence (other than a Class 1

offence committed by the applicant when a child) of which the

applicant has been convicted, the CEO is to issue an interim

negative notice to the applicant.

(3) If the CEO —

(a) issues an interim negative notice to the applicant; and

(b) is aware that the applicant is, or is proposed to be,

employed in child-related employment by another

person,

the CEO is to give a copy of the notice to the other person.

(4) An interim negative notice has effect until the CEO decides the

application and issues a negative notice or an assessment notice

to the applicant.

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 3 CEO may require assessment notice to be applied for

s. 14

page 30 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(5) If the information specified in a notice under subsection (1)

about an applicant’s criminal record includes a Class 1 offence

(other than a Class 1 offence committed by the applicant when a

child) of which the applicant has been convicted, the applicant

may make a submission to the CEO under this section only if

the applicant reasonably believes that the applicant’s criminal

record does not include that conviction.

(6) The specified time referred to in subsection (1)(a)(iii) is to be

reasonable and, in any case, at least 28 days after the CEO gives

the applicant the notice.

(7) Before deciding the application, the CEO is to consider any

submission made by the applicant within the specified time.

[Section 13 amended: No. 7 of 2010 s. 8.]

14. Duration of assessment notices and negative notices

(1) An assessment notice has effect for 3 years unless sooner

cancelled under this Act.

(2) A negative notice continues to have effect unless it is cancelled

under this Act.

15. Further assessment notice may be obtained

(1) If an assessment notice no longer has effect, or will expire

within a period of 3 months, the person to whom it was issued

may apply under Division 1 for a further assessment notice.

(2) Section 12 applies to the application as if a reference in that

section to issuing an assessment notice were a reference to

issuing an assessment notice or a further assessment notice.

Division 3 — CEO may require assessment notice to be

applied for

16. CEO may require certain employees to apply for assessment

notice

(1) If a person (the employer) who employs another person (the

employee) in child-related employment —

(a) reasonably suspects that the employee has been charged

with or convicted of an offence; and

(b) reasonably believes that the charge or conviction makes

it inappropriate for the employee to continue to carry out

child-related work,

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

CEO may require assessment notice to be applied for Division 3

s. 17

page 31 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

the employer may give written notice to the CEO of the

suspicion and belief and the grounds on which the suspicion and

belief are held.

(2) The CEO may ask the employer, by written notice or otherwise,

to provide further information in relation to those grounds.

(3) If the CEO is satisfied that the employer has reasonable grounds

for holding the suspicion and belief referred to in subsection (1),

the CEO may give the employee a written notice requiring the

employee to apply, within 10 days after the date of the notice,

for an assessment notice.

(4) Subsection (3) applies to a person whether or not the person has

a current assessment notice.

(5) The employee must comply with a notice given to the employee

under subsection (3) within the period referred to in that

subsection.

Penalty for this subsection: Penalty: a fine of $1 000.

(6) It is a defence to a charge of an offence under subsection (5) to

prove that, at the time the offence is alleged to have been

committed, the person was not employed in child-related

employment.

[Section 16 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 46.]

17. CEO may require certain people to apply for assessment

notice

(1A) In this section —

designated authority means —

(a) the Commissioner; or

(b) a department of the Public Service; or

(c) a body (whether incorporated or not), or the holder of an

office, post or position, that —

(i) is established, constituted or continued for a

public purpose under a written law; and

(ii) under the authority of a written law, performs a

statutory function on behalf of this State;

or

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 3 CEO may require assessment notice to be applied for

s. 17

page 32 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(d) any other person or body, or person or body of a class,

prescribed by the regulations for the purposes of this

definition;

designated information means information given to the CEO

by —

(a) the Commissioner of the Australian Federal Police; or

(b) the Commissioner (however designated) of the police

force of another jurisdiction; or

(c) any other person or body, or person or body of a class,

prescribed by the regulations for the purposes of this

definition.

(1) If a designated authority the Commissioner reasonably believes

that a person charged with or convicted of an offence —

(a) is a person in respect of whom the CEO may ask for

information under section 34; or

(b) carries out child-related work,

and the designated authority Commissioner reasonably believes

that the charge or conviction makes it inappropriate for the

person to continue to carry out child-related work or have an

assessment notice, the designated authority Commissioner may

give the CEO notice of the following — notice of —

(c) the person’s name and any former name or alias;

address; and

(d) the person’s date of birth; birth; and

(da) the person’s address and other contact details;

(e) the offence with which the person has been charged or

of which the person has been convicted; convicted; and

(f) the details of the offence; offence; and

(fa) without limiting paragraph (f), whether a victim of the

offence was a child at the time when the offence was

committed or allegedly committed and, if so, the age of

the victim at that time;

(g) the date of the charge or conviction; conviction.

(h) any other information the designated authority thinks fit.

(2) A designated authority The Commissioner may give notice

under subsection (1) despite another Act or law.

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

CEO may require assessment notice to be applied for Division 3

s. 17

page 33 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(3) If the CEO is satisfied that there are reasonable grounds for

believing that a person in respect of whom the CEO has been

given notice under subsection (1), information under

section 33A or 34 or designated information — subsection (1)

or information under section 34 —

(a) carries out child-related work or has a current

assessment notice; and

(b) has been charged with or convicted of an offence that

may make offence, being a charge or conviction of

which the CEO was not previously aware and the charge

or conviction makes it inappropriate for the person to

continue to carry out child-related work or have an

assessment notice,

the CEO may —

(c) if the person does not have a current assessment notice,

give the person a written notice requiring the person to

apply, within 10 days after the date of the notice, for an

assessment notice; or

(d) if the person has a current assessment notice, make a

decision under section 12 as if —

(i) an application had been made by the person

under section 9 or 10, as the case requires; and

(ii) a reference in section 12 to issuing an assessment

notice were a reference to issuing an assessment

notice or a further assessment notice.

(3A) However, the CEO must not act under subsection (3) in relation

to information about a charge or conviction if the CEO —

(a) was previously aware of the charge or conviction; and

(b) decided to issue an assessment notice under

section 12(5) or (6) despite the existence of the charge or

conviction.

(4) A person must comply with a notice given to the person under

subsection (3)(c) within the period referred to in that paragraph.

Penalty for this subsection: Penalty: a fine of $1 000.

(5) It is a defence to a charge of an offence under subsection (4) to

prove that, at the time the offence is alleged to have been

committed, the person was not carrying out child-related work.

[Section 17 inserted: No. 7 of 2010 s. 9; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 16 and 46.]

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 3 CEO may require assessment notice to be applied for

s. 17A

page 34 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

17A. Provision of information by conduct review authority

(1) In this section —

designated conduct review authority, for a conduct review

finding or outcome, means the conduct review authority

prescribed by the regulations as the designated conduct review

authority in relation to conduct review findings or outcomes of

that kind.

(2) This section applies if —

(a) a person is, or has been, the subject of a conduct review

finding or outcome; and

(b) the conduct review authority that is the designated

conduct review authority for that conduct review finding

or outcome knows or reasonably believes that the

finding or outcome is relevant to the performance of a

function of the CEO under this Act.

(3) The conduct review authority may give the CEO notice of the

following —

(a) the person’s name and any former name or alias;

(b) the person’s date of birth;

(c) the person’s address and other contact details;

(d) the conduct review finding or outcome;

(e) details of the relevant conduct;

(f) details of any person who employs the person in

child-related employment, or of any child-related

business carried on by the person (to the extent that

these details are known to the conduct review authority);

(g) any other information of a kind prescribed by the

regulations.

(4) If a conduct review authority gives a notice to the CEO under

subsection (3) and the conduct review finding or outcome to

which the notice relates is subsequently quashed, set aside or

withdrawn expressly or impliedly, or found to be

unsubstantiated or incorrect, the conduct review authority must

give the CEO notice of this change in circumstances.

(5) A conduct review authority may give a notice under

subsection (3) or (4) despite another Act or law.

(6) On receiving a notice from a conduct review authority under

subsection (3) or (4), the CEO may request the conduct review

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

CEO may require assessment notice to be applied for Division 3

s. 17B

page 35 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

authority to provide any further information to the CEO that the

CEO reasonably requires for the purposes of this section.

(7) A conduct review authority to which a request is made under

subsection (6) is authorised to disclose the information to the

CEO.

(8) The information given by a conduct review authority under this

section may include information about, or relating to, a finding

or outcome that was made before —

(a) the finding or outcome became a conduct review finding

or outcome under this Act; or

(b) the conduct review authority became the designated

conduct review authority for the finding or outcome

under this Act.

(9) This section does not limit the powers of the CEO to request or

obtain information under another provision of this Act.

[Section 17A inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 17.]

17B. Action based on information received in relation to conduct

review finding or outcome

(1) The CEO may, on the basis of a notice given under section 17A,

take action under subsection (2) if the CEO is satisfied that there

are reasonable grounds for believing that the person to whom

the notice relates —

(a) carries out child-related work or has a current

assessment notice; and

(b) is, or has been, the subject of a conduct review finding

or outcome that may make it inappropriate for the

person to continue to carry out child-related work or

have an assessment notice.

(2) The CEO may —

(a) if the person does not have a current assessment notice,

give the person a written notice requiring the person to

apply, within 10 days after the date of the notice, for an

assessment notice; or

(b) if the person has a current assessment notice, make a

decision under section 12 as if —

(i) an application had been made by the person

under section 9 or 10, as the case requires; and

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 3 CEO may require assessment notice to be applied for

s. 17C

page 36 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ii) a reference in section 12 to issuing an assessment

notice were a reference to issuing an assessment

notice or a further assessment notice.

(3) A person must comply with a notice given to the person under

subsection (2)(a) within the period referred to in that paragraph.

Penalty for this subsection: a fine of $1 000.

(4) It is a defence to a charge of an offence under subsection (3) to

prove that, at the time the offence is alleged to have been

committed, the person was not carrying out child-related work.

[Section 17B inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 17.]

17C. CEO may obtain further information about conduct review

finding or outcome

(1) In this section —

related authority, in relation to a conduct review finding or

outcome, means a person or body (other than a conduct review

authority) —

(a) that made a finding, determination or decision that

resulted in, led to or comprised the conduct review

finding or outcome; or

(b) that —

(i) has been involved in any step or process

connected with, or otherwise related to, the

conduct review finding or outcome; and

(ii) is a person or body, or person or body of a class,

prescribed by the regulations for the purposes of

this paragraph.

(2) This section applies in respect of a person —

(a) who has a current assessment notice; or

(b) who has applied to the CEO for an assessment notice; or

(c) who has applied to the CEO for a negative notice to be

cancelled; or

(d) in relation to whom the CEO has decided to act under

section 17(3)(d) or 17B(2)(b); or

(e) in relation to whom the CEO is acting under section 20;

or

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

CEO may require assessment notice to be applied for Division 3

s. 18

page 37 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(f) who has applied to the State Administrative Tribunal

under section 26 or who is the subject of an appeal

against a decision of the Tribunal on an application

under that section; or

(g) in relation to whom the CEO has been given a notice

that the CEO must treat under section 32(1) as an

application by the person for an assessment notice.

(3) If the person is, or has been, the subject of a notice given under

section 17A in respect of a conduct review finding or outcome,

the CEO may request the conduct review authority that gave the

notice or a related authority for any information relating to the

person in its possession that is connected with, or otherwise

related to, the conduct review finding or outcome.

(4) A conduct review authority or related authority to which a

request is made under subsection (3) is authorised to disclose

the information to the CEO.

(5) This section does not limit the powers of the CEO to request or

obtain information under another provision of this Act.

[Section 17C inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 17.]

18. CEO may issue negative notice if notice issued by CEO not

obeyed CEO may issue negative notice if notice issued under

s. 16 or 17 not obeyed

(1) If a person does not comply with a notice given to the person

under section 16(3), 17(3)(c) or 17B(2)(a) section 16(3) or

17(3)(c) within the period referred to in that provision, the CEO

may issue a negative notice to the person.

(2) If the CEO —

(a) issues a negative notice under subsection (1) to a person

who is employed in child-related employment; and

(b) is aware of the person’s employer,

the CEO is to give the employer written notice of having issued

a negative notice to the person.

[Section 18 amended: No. 7 of 2010 s. 10; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 18.]

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 4 Cancellation of assessment notices and negative notices

s. 19

page 38 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Division 4 — Cancellation of assessment notices and

negative notices

19. Application for cancellation of negative notice Negative

notice, application for cancellation of

(1) A person to whom a negative notice has been issued may apply

to the CEO for the notice to be cancelled.

(2) The application cannot be made sooner than 3 years after —

(a) the negative notice was issued; or

(b) if the person has previously applied under this section —

the date of the CEO’s notice under subsection (10); or

the most recent previous application.

(c) if the person has applied, under section 26, for a review

of a decision by the CEO and the State Administrative

Tribunal has affirmed the CEO’s decision — the date of

the Tribunal’s decision.

(3) Subsection (2) does not apply if —

(a) a Class 1 offence or a Class 2 offence with which the

person was charged when the negative notice was

issued, the previous application was made, or the CEO’s

decision was affirmed, or the previous application was

made, is later disposed of by a court otherwise than by

way of a conviction; or

(b) an any offence of which the person was convicted when

the negative notice was issued, the previous application

was made, or the CEO’s decision was affirmed, or the

previous application was made, is later quashed or set

aside on appeal; or

(ba) a Class 1 offence of which the person was convicted

when the negative notice was issued, the previous

application was made, or the CEO’s decision was

affirmed, is later the subject of a pardon granted to the

person; or

(c) the negative notice was issued under section 12(5)

because the condition in item 4 of the Table to

section 12(3) applied to the person and the pending

charge in respect of an offence referred to in that item

was later disposed of by a court otherwise than by way

of a conviction; or conviction.

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Cancellation of assessment notices and negative notices Division 4

s. 19

page 39 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(d) a conduct review finding or outcome of which notice

was given under section 17A(3) and which was taken

into account when the negative notice was issued, the

previous application was made, or the CEO’s decision

was affirmed, is later quashed, set aside or withdrawn

expressly or impliedly, or found to be unsubstantiated or

incorrect.

(4) Subsection (2)(a) does not apply if the negative notice was

issued under section 18.

(4A) Subsection (3)(d) does not apply if the conduct review finding

or outcome is replaced by another conduct review finding or

outcome.

(5) The application is to be —

(a) in the approved form; and

(b) signed by the applicant; and

(c) accompanied by the fee prescribed by the regulations.

(6) The approved form is to include provision for identifying

information to be given about the applicant.

(7) The person may, in the application, state any information or

make any submission that relates to —

(a) the person’s suitability to carry out child-related work;

or

(b) any change in the person’s circumstances,

unless the person has previously stated that information or made

that submission in or in respect of an application under this Act.

(8) Section 12(2) to (8) apply to the application as if —

(a) the application were an application for an assessment

notice; and

(b) a reference in those provisions to issuing an assessment

notice were a reference to granting the application; and

(c) a reference in those provisions to issuing a negative

notice were a reference to refusing the application.

(9) If the CEO grants the application, the CEO —

(a) is to cancel the negative notice and give written notice to

the applicant accordingly; and

(b) if the person so requests — is to issue an assessment

notice to the person.

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 4 Cancellation of assessment notices and negative notices

s. 20

page 40 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(10) If the CEO refuses the application, the CEO is to give the

person a written notice that —

(a) states the reasons for the CEO’s decision on the

application; and

(b) states that the person may apply to the State

Administrative Tribunal, within 28 days after the date of

the notice, to have the decision reviewed; and

(c) explains how the application for the review is made.

[Section 19 amended: No. 7 of 2010 s. 11; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 19.]

20. Cancellation of assessment notice or negative notice as result

of wrong or incomplete informationAssessment notice or

negative notice, CEO may cancel if issued on wrong etc.

information

(1) In this section —

correct notice means —

(a) in relation to the cancellation of an assessment notice —

a negative notice; or

(b) in relation to the cancellation of a negative notice — an

assessment notice.

(2) The CEO may cancel an assessment notice or negative notice

(the first notice) and substitute the correct notice if the CEO is

satisfied that —

(a) the decision on the application for the first notice was

based on wrong or incomplete information; and

(b) based on the correct or complete information, the CEO

should issue the correct notice.

(3) If the correct notice to be substituted is a negative notice, the

CEO is to comply with section 13 before the correct notice may

be substituted.

(4) Without limiting subsection (2), an application for the

cancellation of a negative notice may be made under this section

by the person to whom it was issued.

(5) Section 19 does not apply to the application if the CEO is

satisfied under subsection (2) that an assessment notice should

be issued to the applicant.

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Cancellation of assessment notices and negative notices Division 4

s. 21A

page 41 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(6) The CEO is to issue the correct notice to the person to whom the

first notice was issued and, if the CEO is aware that that person

is, or is proposed to be, employed in child-related employment

by another person, the CEO is to give a copy of the correct

notice to the other person.

21A. Cancellation of assessment notices of certain people not

involved in child-related work Assessment notices of certain

people not involved in child-related work, cancellation of

(1) If a person in respect of whom the CEO has received a notice

under section 17(1) or 17A(3) has a current assessment notice

and that person gives the CEO written notice that the person is

not employed in child-related employment or carrying on a

child-related business, the CEO is to cancel the assessment

notice.

(2) If a person in respect of whom the CEO is required to make a

decision in accordance with section 17(3)(d) or 17B(2)(b) gives

the CEO a notice under subsection (1), the CEO may —

(a) cancel the person’s assessment notice; and

(b) not make a decision in accordance with that paragraph.

(3) If the CEO cancels the person’s assessment notice, the CEO is

to give the person written notice of the cancellation.

[Section 21A inserted: No. 7 of 2010 s. 12; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 20.]

21B. Cancellation of assessment notice on person’s request

Assessment notice, cancellation of on person’s request

(1) If a person applies to the CEO in writing or in an approved form

for the cancellation of the person’s assessment notice and the

CEO reasonably believes that the person does not carry out

child-related work, the CEO may cancel the notice.

(2) If the CEO cancels the person’s assessment notice, the CEO is

to give the person written notice of the cancellation.

[Section 21B inserted: No. 7 of 2010 s. 12.]

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 5 Prohibitions relating to child-related work

s. 21C

page 42 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

21C. Cancellation of assessment notices of certain people to whom

s. 32 applies Assessment notices of certain people to whom

s. 32 applies, cancellation of

(1) If —

(a) a notice given to the CEO under section 29(1) or 30 is

treated under section 32(1) as an application for an

assessment notice; and

(b) the person who gave the notice to the CEO advises the

CEO that the person he or she has ceased to be

employed in child-related employment work or to carry

on a child-related business; and

(c) the person has a current assessment notice; and

(d) the person requests the CEO not to decide the

application,

the person is taken to have withdrawn the application and the

CEO is to cancel the assessment notice.

(2) If the CEO cancels the person’s assessment notice, the CEO is

to give the person written notice of the cancellation.

[Section 21C inserted: No. 7 of 2010 s. 12; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 21.]

21. Issue of notice cancels any previous notice

(1) An assessment notice issued to a person cancels any current

assessment notice, negative notice or interim negative notice

that has previously been issued to the person.

(2) A negative notice issued to a person cancels any current

assessment notice or interim negative notice that has previously

been issued to the person.

(3) An interim negative notice issued to a person cancels any

current assessment notice that has previously been issued to the

person.

Division 5 — Prohibitions relating to child-related work

22. Employers not to employ certain people in child-related

employment

(1) In this section —

employer means a person who employs, or proposes to employ,

another person in child-related employment.

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Prohibitions relating to child-related work Division 5

s. 22

page 43 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) An employer must not employ a person in child-related

employment if —

(a) the employer —

(i) is aware of a Class 1 offence or a Class 2 offence

of which the person has been convicted; or

(ii) is aware that the person has a pending charge in

respect of a Class 1 offence or a Class 2 offence;

and

(b) the person does not have a current assessment notice and

has not made an application for an assessment notice

that is pending.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

(3) An employer must not employ a person in child-related

employment if the employer is aware that a negative notice or

an interim negative notice has been issued to the person and is

current.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

(4) An employer must not employ a person in child-related

employment in connection with a child care service if the person

does not have a current assessment notice and has not made an

application for an assessment notice that is pending.

Penalty for this subsection: Penalty: a fine of $12 000 and

imprisonment for 12 months.

(5) An employer must not employ a person in child-related

employment if the employer is aware that the person has

withdrawn an application for an assessment notice.

Penalty for this subsection: Penalty: a fine of $12 000 and

imprisonment for 12 months.

(6) An employer must not employ a person in child-related

employment if —

(a) the person has been employed by the employer in that

employment for more than 5 days in a calendar year; and

(b) the person does not have a current assessment notice and

has not made an application for an assessment notice

that is pending.

Penalty for this subsection: Penalty: a fine of $12 000 and

imprisonment for 12 months.

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 5 Prohibitions relating to child-related work

s. 23

page 44 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(7) Subsection (6) does not apply in relation to the employment of a

person if subsection (2), (3), (4) or (5) applies in relation to that

employment.

(8) A person charged with an offence under this section may be

convicted of another offence under this section if that offence is

established by the evidence.

[Section 22 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 46.]

23. People with negative notice or interim negative notice not to

carry out child-related work

If a negative notice or an interim negative notice has been issued

to a person and is current, the person must not —

(a) be employed in child-related employment; or

(b) carry on a child-related business.

Penalty: a fine of $60 000 and imprisonment for 5 years.

24. People without current assessment notice not to carry out

child-related work

A person who does not have a current assessment notice must

not —

(a) be employed in child-related employment; or

(b) carry on a child-related business.

Penalty: a fine of $60 000 and imprisonment for 5 years.

25. Defences for an offence under s. 24 Defences for s. 24

(1) It is a defence to a charge of an offence under section 24 to

prove that —

(a) at the time the offence is alleged to have been

committed, the person charged had applied for an

assessment notice and the application was pending; and

(b) the application was not later withdrawn.

(2) Subsection (1) does not apply to a person who, at the time the

offence is alleged to have been committed —

(a) has been convicted of a Class 1 offence (other than a

Class 1 offence committed by the person when a child or

in respect of which the person has been granted a

pardon); or

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Prohibitions relating to child-related work Division 5

s. 25

page 45 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) has a pending charge in respect of a Class 1 offence

(other than a Class 1 offence allegedly committed by the

person when a child).

(2) Subsection (1) does not apply to a person convicted of a Class 1

offence (other than a Class 1 offence committed by the person

when a child) at the time the offence is alleged to have been

committed.

(3) It is a defence to a charge of an offence under section 24 to

prove that the person charged was employed in child-related

employment or carried on a child-related business, as the case

requires, on no more than 5 days during the calendar year in

which the offence is alleged to have occurred.

(4) Subsection (3) does not apply to a person —

(a) who —

(i) has been convicted of a Class 1 offence (other

than a Class 1 offence committed by the person

when a child); or

(ii) has a pending charge in respect of a Class 1

offence (other than a Class 1 offence allegedly

committed by the person when a child);

or

(a) convicted of a Class 1 offence (other than a Class 1

offence committed by the person when a child); or

(b) who is carrying out child-related work in connection

with a child care service; or

(c) whose assessment notice has been cancelled under

section 21A(1) or (2) or 21C(1).

(5) Subsection (3) does not apply to a person who has had an

assessment notice cancelled under section 31(5) if the person —

(a) has not been issued with a further assessment notice; or

(b) has applied for a further assessment notice and the

application was pending at the time the offence under

section 24 is alleged to have been committed.

(6) Subsection (3) does not apply to a person —

(a) who has applied for an assessment notice having been

required to do so under section 16(3), 17(3)(c)

or 17B(2)(a); or section 16(3) or 17(3)(c); or

Working with Children (Criminal Record Checking) Act 2004

Part 2 Assessment notices and negative notices

Division 6 Review by State Administrative Tribunal

s. 26

page 46 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) who has given the CEO a notice that is to be treated

under section 32(1) as an application by the person for

an assessment notice; or

(c) has been given a written notice by the CEO under

section 13 that the CEO proposes or is required to decide

an application under section 12 by issuing a negative

notice,

if the person withdraws the application for an assessment notice

before the CEO decides the application.

(7) Subsection (3) does not apply to a person referred to in

section 17(3)(d) or 17B(2)(b). section 17(3)(d).

[Section 25 amended: No. 7 of 2010 s. 13; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 22.]

Division 6 — Review by State Administrative Tribunal

26. Reviewable decisions

(1) In this section —

defined period means —

(a) in relation to a decision by the CEO to issue a negative

notice to a person — 28 days after the date of the

negative notice; or

(b) in relation to a decision by the CEO not to grant an

application for a negative notice issued to a person to be

cancelled — 28 days after the date of the notice given to

the person under section 19(10); or

(c) in relation to a decision by the CEO to refuse to cancel a

negative notice and substitute the correct notice —

28 days after the date the CEO refuses to cancel the

negative notice and substitute the correct notice.

(2) Subject to subsection (3A), a person may apply to the State

Administrative Tribunal within the defined period for a review

of a decision by the CEO —

(a) to issue a negative notice to the person; or

(b) not to grant an application for a negative notice issued to

the person to be cancelled.

Working with Children (Criminal Record Checking) Act 2004

Assessment notices and negative notices Part 2

Review by State Administrative Tribunal Division 6

s. 26

page 47 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(3A) If a person has not made a submission to the CEO under

section 13(1)(c) section 13(1)(a)(iii) after having been invited to

do so by the CEO, the person cannot make an application under

subsection (2)(a) without the leave of the Tribunal.

(3B) A person may apply to the State Administrative Tribunal within

the defined period for a review of a decision by the CEO to

refuse to cancel a negative notice and substitute the correct

notice under section 20(2) if the person —

(a) has been refused leave under subsection (3A); and

(b) has subsequently made a submission to the CEO under

section 13(1)(c) having been invited to do so by the

section 13(1)(a)(ii) having been invited to do so by

CEO.

(3) A decision that is the subject of an application under

subsection (2) or (3B) continues to have effect pending the

outcome of the review, unless the State Administrative Tribunal

orders otherwise.

(4) A decision by the State Administrative Tribunal under the State

Administrative Tribunal Act 2004 section 29 so as to provide for

the issue of an assessment notice —

(a) has effect as a decision of the CEO from the date of the

Tribunal’s decision; and

(b) does not affect the operation of any other provision of

this Act as it applies before the date of the Tribunal’s

decision.

[Section 26 amended: No. 7 of 2010 s. 14; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 23.]

Working with Children (Criminal Record Checking) Act 2004

Part 3 Changes in criminal record and criminal record checks

Division 1 Relevant changes in criminal record

s. 27

page 48 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 3 — Changes in criminal record and criminal

record checks

Division 1 — Relevant changes in criminal record

27. Meaning of relevant change in criminal record and

requirement to give notice of that change

(1) For the purposes of this Division, there is a relevant change in a

person’s criminal record, whether or not the person has a

criminal record, if the person is charged with or convicted of a

Class 1 offence or a Class 2 offence.

(2) A requirement imposed on a person under this Division to give

notice about a relevant change in a person’s criminal record

does not require the person to give any information about the

change except that the change has occurred.

28. Pending applications, applicant to notify CEO of relevant

change in criminal history

(1) This section applies to a person if —

(a) the person has applied to the CEO —

(i) for an assessment notice; or

(ii) for a negative notice issued to the person to be

cancelled;

and

(b) the application is pending.

(2) The person must give written notice to the CEO of a relevant

change in the person’s criminal record as soon as is practicable

after the change occurs.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

[Section 28 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 46.]

29. People employed in child-related employment to notify CEO

of relevant change in criminal record

(1) A person employed in child-related employment must give the

CEO and the person’s employer written notice of a relevant

change in the person’s criminal record as soon as is practicable

after the change occurs.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

Working with Children (Criminal Record Checking) Act 2004

Changes in criminal record and criminal record checks Part 3

Relevant changes in criminal record Division 1

s. 30

page 49 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) If the CEO receives a notice under subsection (1), the CEO may

advise the person’s employer of the relevant change in the

person’s criminal record disclosed in the notice.

Penalty: a fine of $24 000 and imprisonment for 2 years.

[Section 29 amended: No. 7 of 2010 s. 15; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 24 and 46.]

30. People carrying on child-related business to notify CEO of

relevant change in criminal record

A person carrying on a child-related business must give the

CEO written notice of a relevant change in the person’s criminal

record as soon as is practicable after the change occurs.

Penalty: a fine of $60 000 and imprisonment for 5 years.

31. Duties and employment of people with assessment notice

who have relevant change in criminal record People with

assessment notice who have relevant change in criminal

record, duties and employment of

(1) This section applies to a person if —

(a) the person has a current assessment notice and is not

employed in child-related employment or carrying on a

child-related business; and

(b) there has been a relevant change in the person’s criminal

record since the assessment notice was issued to the

person.

(2) A person to whom this section applies must not be employed in

child-related employment or carry on a child-related business

unless —

(a) the person has been issued with a further assessment

notice; or

(b) the person has applied for a further assessment notice

and the application is pending.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

(3) A person to whom subsection (2)(b) applies who is offered

child-related employment must give the person’s proposed

employer written notice that —

(a) there has been a relevant change in the person’s criminal

record since the person’s current assessment notice was

issued; and

Working with Children (Criminal Record Checking) Act 2004

Part 3 Changes in criminal record and criminal record checks

Division 1 Relevant changes in criminal record

s. 32A

page 50 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) the person has applied for a further assessment notice

and the application is pending.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

(4) A person to whom this section applies must give written notice

to the CEO of a relevant change in the person’s criminal record

as soon as is practicable after the change occurs.

Penalty for this subsection: Penalty: a fine of $60 000 and

imprisonment for 5 years.

(5) If the CEO receives a notice from a person under subsection (4),

the CEO is to cancel the person’s assessment notice.

(6) If the CEO cancels the person’s assessment notice, the CEO is

to give the person written notice of the cancellation.

[Section 31 amended: No. 7 of 2010 s. 16; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 46.]

32A. Certain applicants for assessment notice to notify proposed

employer of relevant change in criminal record

If — If a person who has had his or her assessment notice

cancelled (the cancelled assessment notice) under

section 31(5) —

(a) a person whose assessment notice has been cancelled

(the cancelled assessment notice) under section 31(5)

has applied for a further assessment notice and the

application is pending; and

(b) a person (the proposed employer) proposes to employ

the person him or her in child-related employment,

the person must give the proposed employer written notice of

any relevant change in the person’s criminal record since the

cancelled assessment notice was issued.

Penalty: a fine of $60 000 and imprisonment for 5 years.

[Section 32A inserted: No. 7 of 2010 s. 17; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 25.]

32. CEO to treat notice of relevant change under s. 29 and 30 as

application for assessment notice

(1) The CEO is to treat a notice given to the CEO under

section 29(1) or 30 as an application for an assessment notice by

Working with Children (Criminal Record Checking) Act 2004

Changes in criminal record and criminal record checks Part 3

Designated changes in criminal record Division 1A

s. 33

page 51 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

the person to whose criminal record there has been a relevant

change.

(2) If the person to whose criminal record there has been a relevant

change has a current assessment notice, section 12 applies to the

application as if a reference in that section to issuing an

assessment notice were a reference to issuing an assessment

notice or a further assessment notice.

[Section 32 amended: No. 7 of 2010 s. 18.]

33. Class 1 offence: pending charge or conviction prevents

child-related work

If the relevant change in a person’s criminal record is that the

person is charged with or convicted of a Class 1 offence (other

than a Class 1 offence committed or allegedly committed by the

person when a child), the person must not —

(a) be employed in child related employment; or

(b) carry on a child related business.

Penalty: imprisonment for 5 years and a fine of $60 000.

[Section 33 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 26.]

33. People convicted of Class 1 offence not to start or continue

child-related work

If the relevant change in a person’s criminal record is the

person’s conviction of a Class 1 offence (other than a Class 1

offence committed by the person when a child), the person must

not —

(a) be employed in child-related employment; or

(b) carry on a child-related business.

Penalty: a fine of $60 000 and imprisonment for 5 years.

Division 1A — Designated changes in criminal record

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 27.]

33A. Commissioner may give information about change in

criminal record

(1) This section applies in respect of a person —

(a) who has a current assessment notice; or

Working with Children (Criminal Record Checking) Act 2004

Part 3 Changes in criminal record and criminal record checks

Division 1A Designated changes in criminal record

s. 33A

page 52 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) who has applied to the CEO for an assessment notice if

the application is pending; or

(c) who has applied to the CEO for a negative notice to be

cancelled if the application is pending; or

(d) in relation to whom the CEO has decided to act under

section 17(3)(d) or 17B(2)(b); or

(e) in relation to whom the CEO is acting under section 20;

or

(f) in relation to whom the CEO has been given a notice

that the CEO must treat under section 32(1) as an

application by the person for an assessment notice if the

application is pending.

(2) For the purposes of this section, there is a designated change in

the person’s criminal record, whether or not the person has a

criminal record, if —

(a) the person is charged with or convicted of an offence; or

(b) the person becomes subject to a non-conviction charge;

or

(c) there is a change in any other information mentioned in

the person’s criminal record.

(3) The Commissioner may give the CEO the following information

in connection with a designated change in the person’s criminal

record —

(a) details of the change in the person’s criminal record;

(b) information that is connected with, or otherwise related

to, the change in the person’s criminal record;

(c) any other information the Commissioner thinks fit.

(4) The CEO may give the Commissioner any information that is

reasonably required in connection with the exercise of the

Commissioner’s powers under this section.

(5) This section does not limit the powers of the Commissioner to

disclose information under another provision of this or any other

Act.

[Section 33A inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 27.]

Working with Children (Criminal Record Checking) Act 2004

Changes in criminal record and criminal record checks Part 3

Criminal record checks Division 2

s. 34

page 53 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Division 2 — Criminal record checks

34. CEO may carry out criminal record check

(1) In this section —

DPP means —

(a) the Director of Public Prosecutions appointed under the

Director of Public Prosecutions Act 1991 section 5; or

(b) a person or body exercising functions that substantially

correspond to the functions of the Director of Public

Prosecutions under a law of another jurisdiction.

(1) In this section —

authorised person means —

(a) the chief executive officer of the department of the

Public Service principally assisting the Minister in the

administration of the Sentencing Act 1995; or

(b) the Commissioner; or

(c) the Director of Public Prosecutions under the Director of

Public Prosecutions Act 1991;

criminal records agency means —

(a) the Commissioner of the Australian Federal Police; or

(b) the Commissioner (however designated) of the police

force of another State or a Territory or another country;

or

(c) a person or body that is —

(i) established under the law of another State, a

Territory or the Commonwealth; and

(ii) prescribed by the regulations for the purposes of

this definition.

(2) This section applies in respect of a person —

(a) who has a current assessment notice; or

(b) who has applied to the CEO for an assessment notice; or

(c) who has applied to the CEO for a negative notice to be

cancelled; or

(d) in relation to whom the CEO has decided to act under

section 17(3)(d) or 17B(2)(b); or

(e) in relation to whom the CEO is acting under section 20;

or

Working with Children (Criminal Record Checking) Act 2004

Part 3 Changes in criminal record and criminal record checks

Division 2 Criminal record checks

s. 34

page 54 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(f) who has applied to the State Administrative Tribunal

under section 26 or who is the subject of an appeal

against a decision of the Tribunal on an application

under that section; or

(g) in relation to whom the CEO has been given a notice

that the CEO must treat under section 32(1) as an

application by the person for an assessment notice.

(d) if the CEO is given a notice that is to be treated under

section 32(1) as an application by the person for an

assessment notice.

(3) The CEO may ask a criminal records agency for information or

access to the records of the Commissioner or a criminal records

agency for information or access to the respective records of the

Commissioner or the criminal records agency —

(a) to determine whether the person has a criminal record;

and

(b) if the person has a criminal record, to obtain details of

the criminal record.

(4) If the person has a criminal record, the CEO may ask a criminal

records agency or the DPP for any information relating to the

person in its possession that is connected with, or otherwise

related to, an authorised person or a criminal records agency for

information about the circumstances of a conviction or charge

mentioned in the criminal record.

(5) A person or body in this State to which a request is made by the

CEO under this section is authorised to disclose the requested

information to the CEO.

(6) This section does not limit the powers of the CEO to request or

obtain information under another provision of this Act.

(5) An authorised person may comply with a request made by the

CEO under this section despite another Act or law.

[Section 34 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 28.]

Working with Children (Criminal Record Checking) Act 2004

Information gathering and sharing Part 3A

s. 34A

page 55 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 3A — Information gathering and sharing

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34A. General power to obtain, use and disclose information

(1) In this section —

CEO (Education) means the chief executive officer of the

department of the Public Service principally assisting in the

administration of the School Education Act 1999;

CEO (Health) means the chief executive officer of the

department of the Public Service principally assisting in the

administration of the Health Services Act 2016;

relevant information means —

(a) information that the CEO considers to be relevant to —

(i) a person to whom Part 2 applies (including a

person who is subject to the application of

section 32); or

(ii) a person who has applied to the State

Administrative Tribunal under section 26;

or

(b) information that the CEO considers to be relevant to

whether —

(i) a person should be issued an assessment notice, a

further assessment notice, a negative notice or an

interim negative notice; or

(ii) an assessment notice or a negative notice should

be cancelled;

or

(c) any other information prescribed by the regulations for

the purposes of this definition.

(2) The CEO may request relevant information for a WWC purpose

from any person or body that, in the opinion of the CEO, may

possess relevant information.

(3) A person or body in this State to which a request is made under

subsection (2) is authorised to disclose relevant information to

the CEO.

(4) The following persons and bodies must comply with a request

under subsection (2) —

(a) the CEO (Education);

Working with Children (Criminal Record Checking) Act 2004

Part 3A Information gathering and sharing

s. 34B

page 56 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) the CEO (Health);

(c) a health service provider as defined in the Health

Services Act 2016 section 6.

(5) The CEO may use relevant information obtained by the CEO

from any source for a WWC purpose.

(6) The CEO may disclose relevant information for a WWC

purpose to —

(a) a government agency; or

(b) a criminal records agency.

(7) This section does not limit the powers of the CEO to request,

obtain or disclose information under another provision of this

Act.

[Section 34A inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34B. Disclosure of information to employer or proposed employer

(1) The CEO may disclose the following information to an

employer or proposed employer who employs or proposes to

employ in child-related employment a person who is applying

for an assessment notice or who holds a current assessment

notice —

(a) information relevant to the identity of the person;

(b) information relevant to the employer or proposed

employer verifying that they employ or propose to

employ the person in child-related employment;

(c) any other information prescribed by the regulations for

the purposes of this subsection.

(2) This section does not limit the powers of the CEO to disclose

information under another provision of this Act.

[Section 34B inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34C. Power to require reports from CEO (Justice)

(1) In this section —

prescribed report means any of the following —

(a) a written pre-sentence report, or a record of an oral

pre-sentence report, made under the Sentencing Act 1995

Part 3 Division 3;

Working with Children (Criminal Record Checking) Act 2004

Information gathering and sharing Part 3A

s. 34D

page 57 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) a report prepared for the purposes of the Sentence

Administration Act 2003 section 11A, 17 or 51;

(c) a report prepared for the purposes of the Young

Offenders Act 1994 section 47, 48(1) or 159;

(d) a report —

(i) made under, or prepared for the purposes of, the

Bail Act 1982, the Dangerous Sexual Offenders

Act 2006 (repealed), the High Risk Serious

Offenders Act 2020, the Prisons Act 1981, the

Sentence Administration Act 2003, the

Sentencing Act 1995 or the Young Offenders

Act 1994; and

(ii) of a kind prescribed by the regulations for the

purposes of this definition.

(2) The CEO may, for a WWC purpose, by written notice request

the CEO (Justice) to give the CEO a copy of a prescribed report.

(3) A request to the CEO (Justice) under this section may only

relate to obtaining a report about an offender or alleged

offender.

(4) The CEO (Justice) must comply with a request under this

section within a reasonable period after the request is received.

(5) The CEO (Justice) is authorised to provide the requested report

to the CEO.

(6) This section does not limit the operation of section 34A.

[Section 34C inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34D. Exchange of information with corresponding authorities

(1) The CEO may disclose to a corresponding authority information

obtained or created under this Act that —

(a) relates to —

(i) a person’s criminal record; or

(ii) a conduct review finding or outcome; or

(iii) an application made by a person under this Act;

or

(iv) a decision to issue an assessment notice, a further

assessment notice, a negative notice or an interim

negative notice;

or

Working with Children (Criminal Record Checking) Act 2004

Part 3A Information gathering and sharing

s. 34E

page 58 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) may otherwise be relevant to the performance of a

function of the corresponding authority that substantially

corresponds to a function of the CEO under this Act.

(2) The CEO may request a corresponding authority to disclose to

the CEO information obtained or created by the corresponding

authority that —

(a) corresponds to the information referred to in

subsection (1)(a) and relates to a person who has made

an application, or has been issued with a notice, under

this Act; or

(b) may otherwise be relevant to the performance of a

function of the CEO under this Act.

[Section 34D inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34E. Exchange of information under National Disability

Insurance Scheme (Worker Screening) Act 2020

(1) In this section —

CEO (NDIS) means the chief executive officer of the

department of the Public Service principally assisting in the

administration of the National Disability Insurance Scheme

(Worker Screening) Act 2020;

interstate screening agency means an interstate screening

agency as defined in the National Disability Insurance Scheme

(Worker Screening) Act 2020 section 5(1).

(2) The CEO may disclose to the CEO (NDIS) or an interstate

screening agency information obtained or created under this Act

that —

(a) relates to —

(i) a person’s criminal record; or

(ii) a conduct review finding or outcome; or

(iii) an application made by a person under this Act;

or

(iv) a decision to issue an assessment notice, a further

assessment notice, a negative notice or an interim

negative notice;

or

(b) may otherwise be relevant to the performance of a

function of —

(i) the CEO (NDIS) under a law of this State; or

Working with Children (Criminal Record Checking) Act 2004

Information gathering and sharing Part 3A

s. 34F

page 59 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ii) the interstate screening agency under a law of

another jurisdiction.

(3) The CEO may request the CEO (NDIS) or an interstate

screening agency to disclose to the CEO information obtained

or created by the CEO (NDIS) or the interstate screening agency

that —

(a) corresponds to the information referred to in

subsection (2)(a) and relates to a person who has made

an application, or has been issued with a notice, under

this Act; or

(b) may otherwise be relevant to the performance of a

function of the CEO under this Act.

(4) However, a prescribed report obtained from the CEO (Justice)

under section 34C cannot be disclosed under subsection (2)

without the approval of the CEO (Justice).

[Section 34E inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34F. Disclosure of information to authorised entities

(1) In this section —

authorised entity means —

(a) a public authority prescribed by the regulations for the

purposes of this definition; or

(b) a criminal records agency.

(2) If the CEO considers it to be in the public interest to do so, the

CEO may, by written notice, disclose the following information

to an authorised entity —

(a) that an application for an assessment notice has been

made by a person in respect of which no decision has yet

been made under section 12;

(b) that an assessment notice has been issued to a person;

(c) that an application for an assessment notice has been

withdrawn by a person;

(d) that a negative notice has been issued to a person;

(e) that an interim negative notice has been issued to a

person;

(f) that an assessment notice issued to a person has been

cancelled under section 21A or 21C;

(g) that a person does not have a current assessment notice.

Working with Children (Criminal Record Checking) Act 2004

Part 3A Information gathering and sharing

s. 34G

page 60 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(3) If the CEO gives a notice to an authorised entity under

subsection (2) that discloses information about a person and an

assessment notice is subsequently issued to the person, the CEO

must give notice of the issuing of the assessment notice to the

authorised entity.

(4) If the CEO gives a notice to an authorised entity under

subsection (2) that discloses the information referred to in

subsection (2)(d) and the negative notice is subsequently

cancelled without an assessment notice being issued, the CEO

must give notice of the cancellation of the negative notice to the

authorised entity.

(5) This section does not limit the powers of the CEO to disclose

information under another provision of this Act.

[Section 34F inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34G. Disclosure of information to Australian Crime Commission

(1) In this section —

ACC means the Australian Crime Commission established

under the Australian Crime Commission Act 2002

(Commonwealth) section 7.

(2) The CEO may disclose the following information to the ACC

for inclusion in a national register or database established under

the Australian Crime Commission Act 2002

(Commonwealth) —

(a) that a negative notice or an interim negative notice has

been issued to a person;

(b) any other information relating to a negative notice or an

interim negative notice prescribed by the regulations for

the purposes of this subsection;

(c) in connection with the disclosure of information under

paragraph (a) or (b) —

(i) the name, address and date of birth of the person

to whom the information relates; and

(ii) any other identifying information the CEO

considers to be relevant in the circumstances.

(3) If the CEO discloses information to the ACC under

subsection (2)(a) and the negative notice or interim negative

notice is subsequently cancelled, the CEO must provide

information about the cancellation to the ACC.

Working with Children (Criminal Record Checking) Act 2004

Information gathering and sharing Part 3A

s. 34H

page 61 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(4) If the CEO discloses information to the ACC under

subsection (2)(b) or (c) and the information is no longer up to

date or found to be incorrect or inaccurate in some other respect,

the CEO may disclose new or revised information to the ACC.

(5) This section does not limit the powers of the CEO to disclose

information under another provision of this Act.

[Section 34G inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34H. Disclosure of information relevant to protection of children

or other persons

(1) In this section —

CEO (Children and Community Services) means the CEO as

defined in the Children and Community Services Act 2004

section 3;

prescribed authority means —

(a) a public authority; or

(b) the CEO (Children and Community Services); or

(c) a person or body in another jurisdiction with functions

that substantially correspond to the functions of the CEO

(Children and Community Services); or

(d) the Commissioner; or

(e) the Commissioner of the Australian Federal Police; or

(f) the Commissioner (however designated) of the police

force of another jurisdiction; or

(g) an external government agency prescribed by the

regulations for the purposes of this definition; or

(h) any other person or body, or person or body of a class,

prescribed by the regulations for the purposes of this

definition.

(2) The CEO may disclose to a prescribed authority any

information obtained or created as a result of the performance of

a function or the exercise of a power under this Act —

(a) that, in the opinion of the CEO, is, or is likely to be,

relevant to the wellbeing of a child or a class or group of

children; or

Working with Children (Criminal Record Checking) Act 2004

Part 3A Information gathering and sharing

s. 34I

page 62 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) without limiting paragraph (a), in the case of disclosure

to the CEO (Children and Community Services) — that,

in the opinion of the CEO, is, or is likely to be, relevant

to —

(i) the wellbeing of a person who under the

Children and Community Services Act 2004

section 96 qualifies for assistance for the

purposes of Part 4 Division 6 of that Act; or

(ii) the safety of a person who has been subjected to,

or exposed to, family violence; or

(iii) the administration of the Children and

Community Services Act 2004;

or

(c) that is information of a kind prescribed by the

regulations for the purposes of this subsection.

(3) However, a prescribed report obtained from the CEO (Justice)

under section 34C cannot be disclosed under subsection (2)

without the approval of the CEO (Justice).

(4) This section does not limit or derogate from any other Act or

law relating to the disclosure of information for the protection of

children or other persons.

[Section 34H inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34I. Sharing of police information

(1) In this section —

relevant purpose means —

(a) a WWC purpose; or

(b) a purpose that is for, or connected with, the operation or

administration of, or compliance with, a corresponding

law.

(2) The Commissioner may disclose the following information

about a person for a relevant purpose —

(a) information relating to the person’s criminal record;

(b) without limiting paragraph (a), information relating

to —

(i) a person that is connected with, or otherwise

related to, a conviction or charge mentioned in a

criminal record; or

Working with Children (Criminal Record Checking) Act 2004

Information gathering and sharing Part 3A

s. 34I

page 63 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ii) the investigation or circumstances of any conduct

or alleged conduct.

(3) A disclosure under this section is limited to the following —

(a) the CEO;

(b) a corresponding authority;

(c) the Commissioner of the Australian Federal Police;

(d) the Commissioner (however designated) of the police

force of another jurisdiction;

(e) a person or body that is —

(i) established or constituted under the law of

another jurisdiction; and

(ii) prescribed by the regulations for the purposes of

this subsection.

(4) A person to whom information is disclosed under this section

may disclose that information to a corresponding authority.

(5) This section does not limit the powers of a person or body to

disclose information under another provision of this Act.

(6) This section does not limit the persons to whom, or the

circumstances in which, information may be disclosed apart

from under this Act.

[Section 34I inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

Working with Children (Criminal Record Checking) Act 2004

Part 3B Compliance and enforcement

Division 1 Preliminary

s. 34J

page 64 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 3B — Compliance and enforcement

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

Division 1 — Preliminary

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34J. Terms used

In this Part —

authorised purpose means —

(a) determining whether a person has complied with this

Act; or

(b) without limiting paragraph (a), investigating a suspected

offence under this Act;

entry warrant has the meaning given in section 34V(1);

investigation means an investigation of a suspected offence

under this Act;

record

(a) means a record of information, irrespective of how the

information is recorded or stored or able to be

recovered; and

(b) includes —

(i) any thing from which images, sounds or writings

can be reproduced, with or without the aid of

anything else; and

(ii) any thing on which information is recorded or

stored, whether electronically, magnetically,

mechanically or by some other means;

relevant record means a record or document that contains

information that is or may be relevant to —

(a) determining whether a person has complied with this

Act; or

(b) without limiting paragraph (a), an offence under this

Act.

[Section 34J inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

Working with Children (Criminal Record Checking) Act 2004

Compliance and enforcement Part 3B

Authorised officers Division 2

s. 34K

page 65 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Division 2 — Authorised officers

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34K. Designation of authorised officers

The CEO may, in writing, designate officers of the Department

to be authorised officers —

(a) generally for the purposes of this Act; or

(b) for the purposes of a provision of this Act specified in

the designation.

[Section 34K inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34L. Identity cards

(1) The CEO must ensure that each authorised officer is issued with

an identity card in an approved form.

(2) An authorised officer must display the authorised officer’s

identity card whenever dealing with a person in respect of

whom the officer has exercised, is exercising, or is about to

exercise, a power under this Act.

(3) In any proceedings the production by an authorised officer of

the authorised officer’s identity card is conclusive evidence of

their designation under section 34K.

[Section 34L inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

Division 3 — Powers of authorised officers

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34M. Entry to places

(1) An authorised officer may, for an authorised purpose, enter a

place if —

(a) its occupier gives informed consent to the entry; or

(b) the entry is authorised by an entry warrant.

Working with Children (Criminal Record Checking) Act 2004

Part 3B Compliance and enforcement

Division 3 Powers of authorised officers

s. 34N

page 66 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) An occupier gives informed consent to entry to a place if the

occupier gives consent after being informed by an authorised

officer —

(a) of the powers the officer wants to exercise in respect of

the place; and

(b) of the reasons why the officer wants to exercise those

powers; and

(c) that the occupier can refuse to consent to the officer

entering the place.

[Section 34M inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34N. Powers after entering place

An authorised officer who enters a place under section 34M(1)

may, for an authorised purpose, do any of the following —

(a) inspect the place and any thing at the place;

(b) search the place and any thing at the place;

(c) measure, test, photograph or film any part of, or any

thing at, the place;

(d) take any thing, or a sample of or from any thing, at the

place for analysis or testing;

(e) operate equipment or facilities at the place or direct a

person at the place to do so;

(f) make a copy of, or take an extract from, any record or

document at the place;

(g) seize any thing at the place that is or may afford

evidence of an offence under this Act;

(h) direct (orally or in writing) the occupier of the place, or

a person at the place, to give the officer any assistance

the officer reasonably requires.

[Section 34N inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34O. Directions to provide information or documents

(1) An authorised officer may, for an authorised purpose, do any of

the following —

(a) direct a person —

(i) to give information; or

(ii) to answer a question put by the officer;

Working with Children (Criminal Record Checking) Act 2004

Compliance and enforcement Part 3B

Powers of authorised officers Division 3

s. 34O

page 67 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) direct a person to produce a record or document that is

in the person’s possession or under the person’s control;

(c) make a copy of a record or document produced in

response to a direction under paragraph (b).

(2) A direction under subsection (1)(a) —

(a) must specify the time at or within which the information

or answer must be given; and

(b) may require that the information or answer —

(i) be given orally or in writing; and

(ii) be given at, or sent or delivered to, a place

specified in the direction; and

(iii) in the case of written information or a written

answer — be sent or delivered by a means

specified in the direction; and

(iv) be verified by statutory declaration.

(3) A direction under subsection (1)(b) —

(a) must specify the time at or within which the record or

document must be produced; and

(b) may require that the record or document be produced —

(i) at a place specified in the direction; and

(ii) by a means specified in the direction.

(4) A person is not excused from complying with a direction under

this section to give information, answer a question or produce a

record or document on the ground that complying with the

direction might tend to incriminate the person or render the

person liable to a penalty.

(5) However, any information or answer given by an individual in

compliance with a direction under this section is not admissible

in evidence against the individual in criminal or civil

proceedings other than proceedings for perjury or for an offence

under section 35.

(6) In directing a person under this section, an authorised officer

must explain to the person —

(a) that it is an offence to contravene the direction; and

(b) the effect of subsections (4) and (5).

Working with Children (Criminal Record Checking) Act 2004

Part 3B Compliance and enforcement

Division 3 Powers of authorised officers

s. 34P

page 68 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(7) A direction under this section may be given orally or in writing.

[Section 34O inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34P. Additional powers for relevant records

An authorised officer may, for an authorised purpose, do any of

the following —

(a) operate a computer or other thing on which the officer

suspects on reasonable grounds a relevant record is or

may be stored or direct a person who has the custody or

control of the computer or thing to do so;

(b) direct (orally or in writing) a person who is, or appears

to be, in control of a record or document that the officer

suspects on reasonable grounds is a relevant record to

give the officer a translation, code, password or other

information necessary to gain access to, or interpret and

understand, the record or document;

(c) make a copy of, take an extract from, download, print,

photograph or film a record or document that the officer

suspects on reasonable grounds is a relevant record;

(d) seize a record or document that the officer suspects on

reasonable grounds is a relevant record and retain it for

as long as is necessary for the purposes of this Act;

(e) seize a computer or other thing on which the officer

suspects on reasonable grounds a relevant record is or

may be stored and retain it for as long as is necessary for

the purposes of this Act;

(f) take reasonable measures to secure or protect a relevant

record, or computer or other thing on which a relevant

record is or may be stored, against damage or

unauthorised removal or interference.

[Section 34P inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34Q. Offence to contravene direction

A person who, without reasonable excuse, fails to comply with a

direction given to the person under this Division commits an

offence.

Penalty: imprisonment for 12 months and a fine of $12 000.

[Section 34Q inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

Working with Children (Criminal Record Checking) Act 2004

Compliance and enforcement Part 3B

Powers of authorised officers Division 3

s. 34R

page 69 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

34R. Exercise of power may be recorded

An authorised officer may record the exercise of a power under

this Division, including by making an audiovisual recording.

[Section 34R inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34S. Assistance and use of force to exercise power

(1) An authorised officer exercising a power under this Division

may authorise as many other people to assist in exercising the

power as are reasonably necessary in the circumstances.

(2) In exercising the power, an authorised officer, and a person

authorised under subsection (1) to assist the officer, may use

force that is reasonably necessary in the circumstances.

[Section 34S inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34T. Procedure for seizing things

(1) If an authorised officer seizes any thing under this Division, the

officer must give the person who was in possession of the thing

a receipt for it in the approved form.

(2) If an authorised officer seizes any thing under this Division, the

officer must, if practicable, allow a person who is otherwise

entitled to possession of the thing to have reasonable access to

it.

(3) An authorised officer who seizes any thing under this Division

may take reasonable measures to prevent the thing being

concealed, lost, damaged or destroyed.

(4) If it is not practicable to move a thing that has been seized under

this Division, an authorised officer may do whatever is

reasonably necessary to secure the thing where it is situated and

to notify people that it is under seizure.

(5) A person must not, without the approval of an authorised

officer, interfere or deal with any thing that the person knows, or

ought reasonably to know, has been seized under this Division

by an authorised officer.

Penalty for this subsection: imprisonment for 12 months and a

fine of $12 000.

[Section 34T inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

Working with Children (Criminal Record Checking) Act 2004

Part 3B Compliance and enforcement

Division 4 Entry warrants

s. 34U

page 70 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

34U. Application of Criminal and Found Property Disposal

Act 2006

(1) The Criminal and Found Property Disposal Act 2006 applies to

any thing that is seized under this Division.

(2) For the purposes of the Criminal and Found Property Disposal

Act 2006, the Department is a prescribed agency.

[Section 34U inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

Division 4 — Entry warrants

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34V. Application for entry warrant

(1) An authorised officer may apply to a magistrate for a warrant

(an entry warrant) authorising the entry of a place for an

authorised purpose.

(2) Subject to this section —

(a) an application for an entry warrant must be in writing

and include the information prescribed by the

regulations; and

(b) the grounds of the application must be verified by

affidavit; and

(c) the applicant must appear in person before the

magistrate to provide information in support of the

application on oath.

(3) An application for a warrant may be made by remote

communication if a magistrate considers that such an

application is reasonable in the circumstances.

(4) If an application for an entry warrant is made by remote

communication and it is not practicable to send the magistrate

written material —

(a) the application may be made orally; and

(b) the magistrate must make a written record of the

application and any information given in support of it;

and

Working with Children (Criminal Record Checking) Act 2004

Compliance and enforcement Part 3B

Entry warrants Division 4

s. 34W

page 71 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(c) if the warrant is issued — the applicant must, as soon as

practicable, send the magistrate an affidavit verifying the

application and any information given in support of it.

[Section 34V inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34W. Issue and content of entry warrant

(1) On an application for an entry warrant, a magistrate may issue

the warrant if satisfied that it is necessary for an authorised

officer to enter a place for an authorised purpose.

(2) An entry warrant must contain the following information —

(a) a reasonably particular description of the place to which

the warrant relates;

(b) a reasonably particular description of the authorised

purpose for which entry to the place is required;

(c) if the authorised purpose is the investigation of a

suspected offence under this Act – the provision of the

Act suspected of being contravened;

(d) the period, not exceeding 14 days, during which the

warrant may be executed;

(e) the name of the magistrate who issued the warrant;

(f) the date and time when the warrant was issued.

(3) An entry warrant must be in the form prescribed by the

regulations.

(4) If a magistrate issues an entry warrant on an application made

by remote communication —

(a) if it is practicable to send a copy of the original warrant

to the applicant by remote communication — the

magistrate must do so; or

(b) if it is not practicable —

(i) the magistrate must provide the applicant, by

remote communication, with the information that

must be set out in the warrant; and

(ii) the applicant must complete a form of warrant

with the information received and give the

magistrate a copy of the form as soon as

practicable after doing so; and

Working with Children (Criminal Record Checking) Act 2004

Part 3B Compliance and enforcement

Division 5 Additional power to request or provide information

s. 34X

page 72 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(iii) the magistrate must attach the copy of the form

to the original warrant and any affidavit received

from the applicant, and make them available for

collection by the applicant.

(5) The copy of the original warrant sent, or the form of the warrant

completed, under subsection (4) has the same force and effect as

the original warrant.

[Section 34W inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

34X. Refusal of entry warrant

If a magistrate refuses to issue an entry warrant, the magistrate

must record on the application, or the written record of the

application, the fact of, the date and time of, and the reasons for,

the refusal.

[Section 34X inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34Y. Effect of entry warrant

(1) An entry warrant comes into force when it is issued by a

magistrate.

(2) An entry warrant may be executed according to its terms by an

authorised officer entitled to enter the place for the authorised

purpose specified in the warrant.

(3) However, if an applicant for an entry warrant contravenes

section 34V(4)(c) or 34W(4)(b)(ii), evidence obtained under the

entry warrant is not admissible in proceedings in a court or

tribunal.

[Section 34Y inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

Division 5 — Additional power to request or provide

information

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34Z. Additional power to request information

(1) In this section —

prescribed entity means —

(a) a public authority; or

Working with Children (Criminal Record Checking) Act 2004

Compliance and enforcement Part 3B

Additional power to request or provide information Division 5

s. 34ZA

page 73 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) a criminal records agency; or

(c) a corresponding authority; or

(d) a Commonwealth agency or instrumentality; or

(e) a person or body, or person or body of a class,

prescribed by the regulations for the purposes of this

definition.

(2) The CEO may request the following information from a

prescribed entity —

(a) information that is relevant to determining whether a

person has complied with this Act, including in relation

to the investigation or prosecution of a suspected or

alleged offence under this Act;

(b) information that is relevant to the safety of an officer of

the Department performing a function or exercising a

power under this Act.

(3) A person or body in this State to which a request is made by the

CEO under subsection (2) is authorised to disclose the requested

information to the CEO.

(4) This section does not limit the powers of the CEO to request,

obtain or disclose information under another provision of this

Act.

[Section 34Z inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 29.]

34ZA. Provision of information to justice authorities

(1) In this section —

justice authority means —

(a) a public authority; or

(b) a government agency; or

(c) a criminal records agency; or

(d) a corresponding authority; or

(e) any other person or body that performs a function

connected with the administration or operation of a law

of this State or another jurisdiction that imposes a

penalty or sanction; or

(f) a person or body, or person or body of a class,

prescribed by the regulations for the purposes of this

definition.

Working with Children (Criminal Record Checking) Act 2004

Part 3B Compliance and enforcement

Division 5 Additional power to request or provide information

s. 34ZA

page 74 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) The CEO may give a notice as described in subsection (3) to a

justice authority in relation to a particular person if the CEO

considers that the information to be contained in the notice is

relevant to —

(a) determining or ensuring compliance with any law,

including a law of another jurisdiction; or

(b) the investigation of a contravention (or alleged

contravention) of any law, including a law of another

jurisdiction; or

(c) any other matter prescribed by the regulations.

(3) A notice under this section may include the following

information —

(a) contact details, employment details and identifying

information about a person who has made an application

under this Act;

(b) other information about the activities of a person who is

employed, or proposed to be employed, in child-related

employment or who is carrying on, or proposing to carry

on, a child-related business;

(c) any other information prescribed by the regulations for

the purposes of this subsection.

(4) A notice under this section must be in writing.

(5) This section does not limit the powers of the CEO to disclose

information under another provision of this Act.

[Section 34ZA inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 29.]

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 35

page 75 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 4 — General

35. False or misleading information False or misleading

information, offence

A person must not give information for the purposes of this Act

that the person knows to be false or misleading in a material

particular to —

(a) a person who employs, or proposes to employ, the

person in child-related employment; or

(b) the CEO; or

(ba) an authorised officer; or

(c) if the person is a student, the person’s education

provider.

Penalty: a fine of $24 000 and imprisonment for 2 years.

[Section 35 amended: No. 7 of 2010 s. 19; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 30.]

35A. Obstruction of authorised officer

A person must not obstruct or hinder an authorised officer who

is performing or attempting to perform a function under this

Act.

Penalty: imprisonment for 12 months and a fine of $12 000.

[Section 35A inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 31.]

35B. Impersonation of authorised officer

A person must not falsely represent, by words or conduct, that

the person or another person is an authorised officer.

Penalty: imprisonment for 12 months and a fine of $12 000.

[Section 35B inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 31.]

35C. Change in particulars

(1) This section applies to a person —

(a) who has a current assessment notice; or

(b) who has applied to the CEO for an assessment notice

and the application is pending; or

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 35C

page 76 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(c) who has applied to the CEO for a negative notice to be

cancelled and the application is pending; or

(d) who is aware that the CEO is in the process of making a

decision under section 12 in relation to the person

because of the operation of section 17(3)(d) or

17B(2)(b); or

(e) who is aware that the CEO is acting under section 20 in

relation to the person; or

(f) who has given a notice to the CEO that the CEO must

treat under section 32(1) as an application for an

assessment notice and the application is pending; or

(g) in any other circumstances prescribed by the regulations.

(2) The person must notify the CEO of a relevant change of

particulars in accordance with this section as soon as practicable

after the change occurs.

Penalty for this subsection: a fine of $5 000.

(3) For the purposes of subsection (2), a relevant change of

particulars is any of the following —

(a) a change in the person’s name, residential address or

contact details;

(b) the person starting child-related employment with a

particular employer;

(c) the person not starting child-related employment with a

particular proposed employer;

(d) the person ceasing child-related employment with a

particular employer;

(e) the person starting to carry on a child-related business;

(f) the person deciding not to start to carry on a proposed

child-related business;

(g) the person ceasing to carry on a child-related business;

(h) if the person is a student —

(i) the person completing or otherwise ceasing a

course of study under which the person may or

must undertake child-related work as part of that

course; or

(ii) a change in the person’s education provider with

whom the person is completing a course of study

under which the person may or must undertake

child-related work as part of that course;

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 36

page 77 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(i) a change prescribed by the regulations.

(4) A notification under subsection (2) must be in the approved

form.

(5) The approved form may require the provision of any

information the CEO thinks fit in connection with a relevant

change of particulars.

[Section 35C inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 31.]

36. Assessment notice to be returned to CEO in certain cases

A person must return to the CEO an assessment notice issued to

the person as soon as is practicable after —

(a) the person is charged with or convicted of a Class 1

offence (other than a Class 1 offence committed or

allegedly committed by the person when a child); or

(b) the CEO issues a negative notice or an interim negative

notice to the person; or

(c) the CEO gives the person a notice of cancellation of the

assessment notice under section 21A(3), 21B(2), 21C(2)

or 31(6).

Penalty: a fine of $12 000 and imprisonment for 12 months.

[Section 36 amended: No. 7 of 2010 s. 20; Working with

Children (Criminal Record Checking) Amendment Bill 2022

cl. 32.]

37. Exchange of information with corresponding authorities

(1) In this section —

corresponding authority means a person or body in another

jurisdiction with functions that correspond to the functions of

the CEO under this Act.

(2) The CEO may disclose to a corresponding authority information

obtained under this Act that relates to a person’s criminal record

or to an application made by, or a notice issued to, a person

under this Act.

(3) The CEO may ask a corresponding authority to disclose to the

CEO information obtained by the corresponding authority

that —

(a) corresponds to the information referred to in

subsection (2); and

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 37A

page 78 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) relates to a person who has made an application, or been

issued with a notice, under this Act.

37A. Exchange of information under National Disability

Insurance Scheme (Worker Screening) Act 2020

(1) In this section —

prescribed report means any of the following —

(a) a written pre-sentence report, or a record of an oral

pre-sentence report, made under the Sentencing Act 1995

Part 3 Division 3;

(b) a report prepared for the purposes of the Sentence

Administration Act 2003 section 11A, 17 or 51;

(c) a report prepared for the purposes of the Young

Offenders Act 1994 section 47, 48(1) or 159;

(d) a report —

(i) made under, or prepared for the purposes of, the

Bail Act 1982, the High Risk Serious Offenders

Act 2020, the Prisons Act 1981, the Sentence

Administration Act 2003, the Sentencing

Act 1995 or the Young Offenders Act 1994; and

(ii) of a kind prescribed by the regulations for the

purposes of this definition.

(2) The CEO may disclose to the CEO or an interstate screening

agency (as those terms are defined in the National Disability

Insurance Scheme (Worker Screening) Act 2020 section 5(1))

information obtained or created under this Act that relates to a

person’s criminal record or to an application made by, or a

notice issued to, a person under this Act.

(3) The CEO may ask the CEO or an interstate screening agency (as

those terms are defined in the National Disability Insurance

Scheme (Worker Screening) Act 2020 section 5(1)) to disclose

to the CEO information obtained or created by the CEO or

interstate screening agency that —

(a) corresponds to the information referred to in

subsection (2); and

(b) relates to a person who has made an application, or has

been issued with a notice, under this Act.

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 38

page 79 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(4) However, a prescribed report obtained from the CEO (Justice)

cannot be disclosed under subsection (2) without the approval of

the CEO (Justice).

[Section 37A inserted: No. 48 of 2020 s. 89.]

38. Disclosure of information by CEO to certain bodies

(1) In this section —

Department means the department of the Public Service

principally assisting the Minister in the administration of the

Child Care Services Act 2007;

public authority means —

(a) a department of the Public Service; or

(b) a body, whether incorporated or not, that is established

or continued for a public purpose under a written law

and that, under the authority of a written law, performs a

statutory function on behalf of the State.

(2) If the CEO considers that it is in the public interest to do so, the

CEO may give written notice to a public authority prescribed by

the regulations that —

(a) an application for an assessment notice has been made

by a person in respect of which no decision has yet been

made under section 12; or

(b) an assessment notice has been issued to a person; or

(c) an application for an assessment notice has been

withdrawn by a person; or

(d) a negative notice or an interim negative notice has been

issued to a person; or

(e) a person does not have a current assessment notice.

(3) If the CEO reasonably believes that a person —

(a) holds a licence under the Child Care Services Act 2007,

or is an approved provider as defined in the Education

and Care Services National Law (Western Australia)

section 5(1); or

(b) is —

(i) a supervising officer or a managerial officer, as

defined in the Child Care Services Act 2007

section 3; or

(ii) a nominated supervisor or a person with

management or control in relation to an

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 38

page 80 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

education and care service under the Education

and Care Services National Law (Western

Australia),

the CEO may give written notice to the chief executive officer

of the Department that —

(c) an application for an assessment notice has been made

by the person in respect of which no decision has yet

been made under section 12; or

(d) an assessment notice has been issued to the person; or

(e) an application for an assessment notice has been

withdrawn by the person; or

(f) a negative notice or an interim negative notice has been

issued to the person; or

(g) the person does not have a current assessment notice.

(4) If —

(a) the CEO has given notice in relation to a person under

subsection (2) or (3); and

(b) subsequently —

(i) if that notice related to the issue of a negative

notice to the person — the negative notice is

cancelled; or

(ii) an assessment notice is issued to the person,

the CEO is to give written notice of that fact to the public

authority or the chief executive officer of the Department, as the

case requires.

(5) If the CEO gives a notice in relation to a person under

subsection (2) to the Department of the Public Service

principally assisting in the administration of the Police

Act 1892, the CEO may also give that Department notice of the

person’s employment details.

[Section 38 amended: No. 19 of 2007 s. 73; No. 7 of 2010 s. 21;

No. 38 of 2011 s. 41; No. 11 of 2012 s. 54; No. 18 of 2018

s. 94.]

[37-38. Deleted: Working with Children (Criminal Record Checking)

Amendment Bill 2022 cl. 33.]

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 39

page 81 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

39. Use and disclosure of information obtained or created in

course of official functions Information obtained officially,

use and disclosure of

A person who is or has been engaged in the performance of

functions under this Act must not, directly or indirectly, disclose

or make use of information obtained or created in the course of

performing those functions except —

(a) for the purpose of, or in connection with, performing

functions under this Act; or

(b) for the purpose of the investigation of a suspected

offence under this Act or the conduct of proceedings

against a person for an offence under this Act; or

(c) as required or allowed under this Act or another written

law; or

(ca) if the information relates to proceedings before a court

or tribunal and the proceedings are or were open to the

public; or

(cb) if the disclosure or use involves the provision of

statistical information that could not reasonably be

expected to identify a specific person; or

(d) with the written consent of the Minister or the person to

whom the information relates.

Penalty: a fine of $24 000 and imprisonment for 2 years.

[Section 39 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 34.]

39A. Ability to provide information and protection from liability

(1) In this section —

external government agency means —

(a) a government department established or constituted

under a law of another jurisdiction; or

(b) a body, whether incorporated or not, that is established,

constituted or continued for a public purpose under a

written law of another jurisdiction and that, under the

authority of a written law of another jurisdiction,

performs a statutory function on behalf of a government

or another jurisdiction;

law includes the common law and any rules of equity.

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 39A

page 82 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) This subsection applies to information disclosed —

(a) to the CEO for the purposes of, or in connection with,

any provision of this Act; or

(b) without limiting paragraph (a), in connection with the

administration or enforcement of this Act; or

(c) by the CEO to —

(i) the CEO as defined in the National Disability

Insurance Scheme (Worker Screening) Act 2020

section 5(1); or

(ii) an interstate screening agency as defined in the

National Disability Insurance Scheme (Worker

Screening) Act 2020 section 5(1);

or

(d) as otherwise authorised or required under any provision

of this Act; or

(e) as authorised by the regulations.

(3) In a case where subsection (2) applies, information may be

disclosed despite any other enactment, law or agreement that

prohibits or restricts its disclosure.

(4) Subsection (3) does not derogate from the operation of —

(a) section 34E(4) or 34H(3); or

(a) section 37A(4); or

(b) the National Disability Insurance Scheme (Worker

Screening) Act 2020 section 34(6).

(5) Subsections (2) and (3) extend to information relating to —

(a) spent convictions; or

(b) children.

(6) If information is disclosed by a person in good faith in a case

where subsection (2) applies, the person —

(a) does not incur any civil or criminal liability; and

(b) is not to be taken to have breached any duty of

confidentiality or secrecy imposed by law; and

(c) is not to be taken to have breached any professional

ethics or standards or any principles of conduct

applicable to the person’s employment or to have

engaged in unprofessional conduct.

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 40

page 83 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(7) Subsection (6) does not apply to the disclosure of information

by an external government agency.

[Section 39A inserted: No. 48 of 2020 s. 90; amended: Working

with Children (Criminal Record Checking) Amendment

Bill 2022 cl. 35.]

40. Protection from personal liability

(1) A person does not incur civil liability for anything that the

person has done in good faith in the performance or purported

performance of a function under this Act.

(2) The protection given by subsection (1) applies even though the

thing done as described in that subsection may have been

capable of being done whether or not this Act had been enacted.

(3) The State is also relieved of any liability that it might otherwise

have had for another person having done anything as described

in subsection (1).

(4) In this section, a reference to the doing of anything includes a

reference to the omission to do anything.

41. Employer to comply with Act despite other laws etc.

(1) If it would be a contravention of a provision of this Act for a

person (the employer) to employ another person in child-related

employment, the employer is to comply with the provision

despite another Act or law or any industrial award, order or

agreement.

(2) The employer does not commit an offence or incur any liability

because, in complying with the provision, the employer does not

start or continue to employ the person in child-related

employment.

(3) Nothing in this section operates to affect a person’s right to seek

or obtain a remedy under the Industrial Relations Act 1979

unless —

(a) the remedy is for the dismissal of the person by the

employer; and

(b) the reason the employer dismissed the person was to

comply with this Act; and

(c) the grounds on which the person seeks the remedy relate

to the fact that the person was dismissed for that reason.

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 42

page 84 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

42. CEO may require information to confirm compliance

with Act

(1) In this section —

regulated person means a person —

(a) who employs another person in child-related

employment; or

(b) who carries on a child-related business; or

(c) who is an education provider.

(2) The CEO may require a regulated person, by written notice or

otherwise, to provide, within a reasonable specified time,

specified information or documents that the CEO reasonably

needs to establish that the regulated person has complied with

this Act.

(3) A regulated person who does not provide the specified

information or documents within the specified time commits an

offence.

Penalty: a fine of $12 000 and imprisonment for 12 months.

[Section 42 amended: No. 7 of 2010 s. 22.]

[42. Deleted: Working with Children (Criminal Record Checking)

Amendment Bill 2022 cl. 36.]

43. Liability of partners for certain offences

(1) If —

(a) a breach of a provision of this Act by a person (the

employer) who employs, or proposes to employ, another

person in child-related employment is an offence; and

(b) the employer that breaches the provision is a

partnership,

the offence is taken to have been committed by each of the

partners in the partnership.

(2) Subsection (1) does not apply to a partner who proves that —

(a) the offence was committed without the partner’s consent

or connivance; and

(b) the partner exercised all due diligence to prevent the

commission of the offence that ought to have been

exercised having regard to the nature of the partner’s

functions and to all the circumstances.

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 43A

page 85 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

43A. Protection of legal professional privilege

Nothing in this Act requires a person to disclose information

that is the subject of legal professional privilege.

[Section 43A inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 37.]

44. Evidentiary matters

(1) In proceedings for an offence against this Act, an allegation in

the prosecution notice of any of the following matters is, in the

absence of evidence to the contrary, taken to be proved —

(a) that at a specified time a specified person did not have a

current assessment notice;

(b) that at a specified time a negative notice or an interim

negative notice had been issued to a specified person

and was current.

(2) In proceedings for an offence against subsection (2), (3) or (5)

of section 22, an allegation in the prosecution notice that an

employer was aware of a specified matter referred to in that

subsection is, in the absence of evidence to the contrary, taken

to be proved.

(3A) In proceedings for an offence against section 9B(1), (2) or (4),

an allegation in the prosecution notice that an education

provider was aware at a specified time of a specified matter

referred to in that subsection is, in the absence of evidence to the

contrary, taken to be proved.

(3B) In proceedings for an offence against section 9B(1), (2), (3), (4)

or (5), an allegation in the prosecution notice that the

procurement by an education provider of employment for a

student in child-related employment was for the purpose of

enabling the student to complete the syllabus for a course

conducted by the provider is, in the absence of evidence to the

contrary, taken to be proved.

(3) In proceedings for an offence against this Act, an assessment

notice, negative notice, interim negative notice or other notice

issued under this Act may be proved by tendering a copy of it

certified by the CEO to be a true copy of the original.

(4) Unless the contrary is proved, it is to be presumed that a

document purporting to have been signed by the CEO was

signed by a person who at the time was the CEO.

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 45

page 86 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(5) Unless the contrary is proved, it is to be presumed that a

document purporting to have been signed by a delegate of the

CEO was signed by a person who at the time was a delegate of

the CEO and was authorised to sign it.

(6) This section is in addition to, and does not affect the operation

of, the Evidence Act 1906.

[Section 44 amended: No. 7 of 2010 s. 23.]

45. Delegation by CEO etc.

(1) The CEO may delegate to a public sector employee or, with the

approval of the Minister, another person any power or duty of

the CEO under another provision of this Act.

(2) In subsection (1) —

public sector employee means an employee as defined in the

Public Sector Management Act 1994 section 3(1).

(3) The delegation is to be in writing signed by the CEO.

(4) A person to whom a power or duty is delegated under this

section cannot subdelegate that power or duty unless the person

is expressly authorised by the CEO to do so.

(5) A person exercising or performing a power or duty that has been

delegated to the person under this section is taken to do so in

accordance with the terms of the delegation unless the contrary

is shown.

(6) Nothing in this section limits the ability of the CEO to perform a

function through an officer of the Department or an agent.

45A. Delegation by public authority or other body

(1) In this section —

chief executive officer, in relation to a relevant authority, means

the principal officer (however described) of that body;

relevant authority means —

(a) a public authority; or

(b) any other body prescribed by the regulations for the

purposes of this definition.

(2) The chief executive officer of a relevant authority may delegate

to an officer or employee of the relevant authority any power or

duty of the relevant authority under this Act.

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 45B

page 87 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(3) The delegation must be in writing signed by the chief executive

officer.

(4) A delegation may expressly authorise the delegate to further

delegate the power or duty.

(5) A person exercising or performing a power or duty that has been

delegated to the person under this section or as authorised under

this section is taken to do so in accordance with the terms of the

delegation unless the contrary is shown.

(6) Nothing in this section limits the ability of the relevant authority

to perform a function through an officer of the relevant authority

or an agent.

[Section 45A inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 38.]

45B. Commencement of proceedings

(1) Proceedings under this Act for an offence or in respect of any

other matter may be commenced in the name of the CEO by —

(a) the CEO; or

(b) a person authorised to do so by the CEO.

(2) In any proceedings no proof is required of —

(a) the appointment of the CEO; or

(b) the authorisation of a person under subsection (1)(b).

(3) An averment in a prosecution notice that a person is authorised

under subsection (1)(b) is taken to be proved unless the contrary

is proved.

(4) Subsection (1) does not limit the ability of a person to

commence or conduct the prosecution of an offence if the

person has authority at law to do so.

[Section 45B inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 38.]

45C. Time for commencement of prosecution

Proceedings under this Act for an offence must be

commenced —

(a) if the penalty for the offence specified by this Act

includes a term of imprisonment for 5 years — within

5 years after the day on which the offence is alleged to

have been committed; or

Working with Children (Criminal Record Checking) Act 2004

Part 4 General

s. 45D

page 88 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) if the proceedings are for an alleged offence against

section 9B(1) or (2) — within 5 years after the day on

which the offence is alleged to have been committed; or

(c) in any other case — within 2 years after the day on

which the offence is alleged to have been committed.

[Section 45C inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 38.]

45D. Service of documents

(1) In this section —

document includes any written notice or decision;

give includes serve, send, issue and notify.

(2) A document that is authorised or required by this Act to be

given to a person may be given by any of the following

methods —

(a) delivering the document to the person personally;

(b) leaving the document for the person at the person’s last

known principal place of residence or ordinary place of

business;

(c) sending the document by post to the person’s last known

principal place of residence or ordinary place of

business;

(d) sending the document by email to an email address

specified by the person for giving documents under this

Act;

(e) any other method to which the person agrees for giving

documents under this Act;

(f) any other method (including electronic means)

prescribed by the regulations.

(3) The regulations may make provision for or in relation to the

time at which a document that is given by a particular method is

taken to have been given.

[Section 45D inserted: Working with Children (Criminal

Record Checking) Amendment Bill 2022 cl. 38.]

46. Regulations

(1) The Governor may make regulations prescribing all matters that

are required or permitted by this Act to be prescribed, or are

necessary or convenient to be prescribed for giving effect to the

purposes of this Act.

Working with Children (Criminal Record Checking) Act 2004

General Part 4

s. 47

page 89 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) Without limiting subsection (1), the regulations may —

(a) provide for the receipt and storage of information

obtained or created under this Act that relates to a

person’s criminal record and the restriction of access to

that information; and

(b) create offences and provide, in respect of an offence so

created, for the imposition of a penalty not exceeding

$6 000.

[Section 46 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 39.]

47. Review of Act

(1) The Minister must review the operation and effectiveness of this

Act, and prepare a report based on the review —

(a) as soon as practicable after the 5th anniversary of the day

on which the Working with Children (Criminal Record

Checking) Amendment Act 2022 section 40 comes into

operation; and

(b) after that, at intervals of not more than 5 years.

(2) The Minister must cause the report to be laid before each House

of Parliament as soon as practicable after it is prepared, but not

later than 12 months after the 5th anniversary or the expiry of the

period of 5 years, as the case may be.

[Section 47 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 40.]

47. Review of Act

(1) The Minister is to carry out a review of the operation and

effectiveness of this Act as soon as is practicable after the fifth

anniversary of the commencement of this section.

(2) The Minister is to prepare a report based on the review and, as

soon as is practicable after the report is prepared, is to cause it to

be laid before each House of Parliament.

[Part 5 (s. 48-55) omitted under the Reprints Act 1984 s. 7(4)(e).]

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 1 Transitional provisions for this Act

s. 56

page 90 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Part 6 — Transitional provisions

Division 1 — Transitional provisions for this Act

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 41.]

56. Term used: commencement day

In this Division — Part —

commencement day means the day on which section 24 comes

into operation.

[Section 56 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 42.]

57. People carrying on a child-related business, when s. 24(b)

applies to

(1) Until the day prescribed by the regulations for the purposes of

this section, section 24(b) does not apply to a person who carries

on a child-related business.

(2) Different days may be prescribed by the regulations for the

purposes of subsection (1) by reference to the following —

(a) the kind of child-related work carried out by the person;

(b) the kind of person who carries out child-related work;

(c) the kind of place where child-related work is carried out

by the person;

(d) whether the person is a continuing operator or a new

operator.

(3) In subsection (2) —

continuing operator means a person —

(a) who carried on a child-related business immediately

before the commencement day; and

(b) who continues to carry on that same business;

new operator means a person who starts to carry on a

child-related business on or after the commencement day

(whether or not the person has ever carried on a child-related

business before that day).

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for this Act Division 1

s. 58

page 91 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

58. Volunteers continuing in child-related employment, when

s. 22(6) and 24(a) apply to

(1) In this section —

continuing volunteer means a person —

(a) who was employed on a voluntary basis in child-related

employment by another person immediately before the

commencement day; and

(b) who continues to be employed on that basis in that

employment by that person.

(2) Until the day prescribed by the regulations for the purposes of

this subsection, sections 22(6) and 24(a) do not apply in relation

to a person being employed in child-related employment as a

continuing volunteer.

(3) Different days may be prescribed by the regulations for the

purposes of subsection (2) by reference to the ages of the

children in respect of whom child-related work is carried out by

a continuing volunteer.

59. Ministers of religion etc. continuing in child-related

employment, when s. 22(6) and 24(a) apply to

(1) In this section —

continuing minister of religion means a person —

(a) who was employed in child-related employment by

another person immediately before the commencement

day as a minister of religion or in any other capacity for

the purposes of a religious organisation; and

(b) who continues to be employed in that employment by

that person in that capacity.

(2) Until the day prescribed by the regulations for the purposes of

this subsection, sections 22(6) and 24(a) do not apply in relation

to a person being employed in child-related employment as a

continuing minister of religion.

60. Other people in child-related employment, when s. 22(6)

and 24(a) apply to

(1) This section does not apply to a person to whom section 58

or 59 applies.

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 1 Transitional provisions for this Act

s. 60A

page 92 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) Until the day prescribed by the regulations for the purposes of

this subsection, sections 22(6) and 24(a) do not apply in relation

to a person being employed in child-related employment.

(3) Different days may be prescribed by the regulations for the

purposes of subsection (2) by reference to the following —

(a) the kind of child-related work carried out by the person;

(b) the kind of person who carries out child-related work;

(c) the kind of place where child-related work is carried out

by the person;

(d) whether the person is a continuing employee or a new

employee;

(e) whether a criminal record check (however described)

has been made in respect of the person —

(i) under another Act; or

(ii) as prescribed by the regulations.

(4) In subsection (3) —

continuing employee means a person —

(a) who was employed in child-related employment by

another person immediately before the commencement

day; and

(b) who continues to be employed in that employment by

that person;

new employee means a person who starts to be employed in

child-related employment on or after the commencement day

(whether or not the person has ever been employed in

child-related employment before that day).

60A. Wilful murder charges and convictions between 1 Jan 2006

and 2 Jul 2008 taken to be relevant changes in criminal

record

Without limiting Part 3 Division 1, if a person was charged with

or convicted of an offence against The Criminal Code

section 278 (as read with section 282) on or after the

commencement day and before the day on which the

Community Protection (Offender Reporting) Amendment

Act 2008 section 13 came into operation (the relevant day) —

(a) there is a relevant change in the person’s criminal record

for the purposes of that Division; and

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for this Act Division 1

s. 61

page 93 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(b) the relevant change is to be taken to have occurred on

the relevant day.

[Section 60A inserted: No. 27 of 2008 s. 13(2).]

61. Transitional regulations

(1) If this Division Part does not provide sufficiently for a matter or

issue of a transitional nature that arises as a result of the coming

into operation of this Act, the Governor may make regulations

prescribing all matters that are required, necessary or convenient

to be prescribed for providing for the matter or issue.

(2) Regulations made under subsection (1) may provide that

specified provisions of this Act —

(a) do not apply; or

(b) apply with specified modifications,

to or in relation to any specified person, matter or issue.

(3) If regulations made under subsection (1) provide that a specified

state of affairs is taken to have existed, or not to have existed,

on and from a day that is earlier than the day on which the

regulations are published in the Gazette but not earlier than the

commencement day, the regulations have effect according to

their terms.

(4) In subsections (2) and (3) —

specified means specified or described in the regulations.

(5) If regulations contain a provision referred to in subsection (3),

the provision does not operate so as —

(a) to affect in a manner prejudicial to any person (other

than the State or an authority of the State) the rights of

that person existing before the day of publication; or

(b) to impose liabilities on any person (other than the State

or an authority of the State) in respect of anything done

or omitted to be done before the day of publication.

[Section 61 amended: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 43.]

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 2 Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

s. 62

page 94 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Division 2 — Transitional provisions for Working with

Children (Criminal Record Checking) Amendment Act 2022

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Subdivision 1 — Preliminary

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

62. Terms used

In this Division —

2022 Amendment Act means the Working with Children

(Criminal Record Checking) Amendment Act 2022;

commencement day means the day on which section 44 of the

2022 Amendment Act comes into operation;

former classification provisions means section 7, and

Schedules 1 and 2, as in force immediately before

commencement day;

new classification provisions means section 7, and Schedules 1

and 2, as in force on and after commencement day;

pre-commencement assessment application means an

application for an assessment notice that is pending immediately

before commencement day;

pre-commencement cancellation application means an

application for the cancellation of a negative notice under

section 19 that is pending immediately before commencement

day.

[Section 62 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Subdivision 2 — Classification of offences

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

63. Current assessment notices

Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to a person who has a

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

Division 2

s. 64

page 95 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

current assessment notice immediately before commencement

day until the person ceases to have a current assessment notice.

[Section 63 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

64. Pre-commencement assessment applications

(1) This section applies to a person who has a pre-commencement

assessment application.

(2) Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to the person until the CEO

makes a decision under section 12 in relation to the application

and then —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; or

(b) if a negative notice is issued —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 64 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

65. Pre-commencement cancellation applications

(1) This section applies to a person who has a pre-commencement

cancellation application.

(2) Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to the person until the CEO

makes a decision on the application and then —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; or

(b) if the application is unsuccessful —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 65 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 2 Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

s. 66

page 96 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

66. Decision to act under s. 17(3)(d)

(1) This section applies to a person if —

(a) the person is subject to a decision of the CEO to act

under section 17(3)(d) made before commencement day;

and

(b) the CEO has not made a decision under section 12 in

respect of the person before commencement day.

(2) Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to the person until the CEO

makes a decision under section 12 and then —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; or

(b) if a negative notice is issued —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 66 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

67. Decision to act under s. 20

(1) This section applies to a person if —

(a) the person is subject to a decision of the CEO to act

under section 20 made before commencement day; and

(b) the processes provided for, or referred to, in section 20

(the relevant processes) have not been completed in

respect of the person immediately before

commencement day.

(2) Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to the person until the

relevant processes are completed and then —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; or

(b) if a negative notice is issued or is not cancelled —

(i) until all rights of review and appeal have been

exhausted; and

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

Division 2

s. 68

page 97 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 67 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

68. Processes associated with s. 32

(1) This section applies to a person if —

(a) the person is the subject of a notice given to the CEO

before commencement day that the CEO must treat

under section 32(1) as an application for an assessment

notice; and

(b) the CEO has not made a decision under section 12 in

respect of the person before commencement day.

(2) Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to the person until the CEO

makes a decision under section 12 and then —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; or

(b) if a negative notice is issued —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 68 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

69. Assessment notice taken to be held while application

pending

(1) Subject to this Subdivision, a person is not taken to cease to

have a current assessment notice if —

(a) the person has a current assessment notice at any time on

or after commencement day (including an assessment

notice issued after commencement day); and

(b) the person applies for a further assessment notice under

Part 2 Division 1 within the period of 3 months before

the assessment notice will expire as provided by

section 15; and

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 2 Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

s. 70

page 98 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(c) the former classification provisions apply to and in

relation to the person under another provision of this

Subdivision at the time of the application; and

(d) the assessment notice expires while the application is

pending.

(2) Subject to this Subdivision, the former classification provisions

continue to apply to and in relation to the person until the CEO

makes a decision under section 12 in relation to the application

and then —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; or

(b) if a negative notice is issued —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 69 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

70. Subsequent issue of negative notice or interim negative

notice

(1) This section applies to a person to whom —

(a) any of sections 63 to 69 apply; or

(b) section 71(4) applies.

(2) Subject to this Subdivision, if the person ceases to have a

current assessment notice (the first assessment notice) because

the person is issued with a negative notice on or after

commencement day, the former classification provisions

continue to apply to and in relation to the person —

(a) until all rights of review and appeal have been

exhausted; and

(b) if an assessment notice is issued as a result of a review

or appeal — until the person ceases to have a current

assessment notice.

(3) Subject to this Subdivision, if the person ceases to have a

current assessment notice (the first assessment notice) because

the person is issued with an interim negative notice on or after

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

Division 2

s. 71

page 99 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

commencement day, the former classification provisions

continue to apply to and in relation to the person —

(a) if an assessment notice is issued — until the person

ceases to have a current assessment notice; and

(b) if a negative notice is issued —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

(4) Subsections (2) and (3) apply in the same way in relation to a

subsequent current assessment notice held by the person if that

current assessment notice can be traced back to the first

assessment notice.

[Section 70 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

71. Proceedings before State Administrative Tribunal or court

(1) Subject to this Subdivision, the former classification provisions

continue to apply (to the extent relevant) to and in relation to a

person who is the subject of proceedings before the State

Administrative Tribunal or a court under or in respect of this

Act that were commenced —

(a) before commencement day; or

(b) on or after commencement day if the proceedings relate

to —

(i) any proceedings commenced before

commencement day; or

(ii) any matter where the right to commence those

proceedings arose before commencement day

and the period for commencing those

proceedings had not expired before

commencement day; or

(iii) any matter where the right to commence those

proceedings expired before commencement day

but the State Administrative Tribunal or a court

grants an extension of time to institute those

proceedings; or

(iv) any matter that is within the ambit of sections 63

to 70 or subsection (4).

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 2 Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

s. 72

page 100 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

(2) Subsection (1)(b)(i) and (ii) extend to a case where the period

for commencing proceedings expires and the State

Administrative Tribunal or a court grants an extension of time to

institute the proceedings.

(3) The former classification provisions apply under subsection (1)

pending the outcome of the proceedings (and subject to

subsection (4) and the other provisions of this Subdivision).

(4) Subject to this Subdivision —

(a) if, as a result of proceedings referred to in subsection (1)

an assessment notice is issued to the person who is the

subject of the proceedings, the former classification

provisions continue to apply to and in relation to the

person — until the person ceases to have a current

assessment notice; and

(b) if, as a result of proceedings referred to in subsection (1)

a negative notice still applies in relation to the person,

the former classification provisions continue to apply to

and in relation to the person —

(i) until all rights of review and appeal have been

exhausted; and

(ii) if an assessment notice is issued as a result of a

review or appeal — until the person ceases to

have a current assessment notice.

[Section 71 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

72. Rights of review and appeal: related provision

(1) This section applies if a provision of this Subdivision provides

that the former classification provisions continue to apply to and

in relation to a person until all rights of review and appeal have

been exhausted.

(2) Subject to this Subdivision, if the State Administrative Tribunal

or a court grants an extension of time to institute review or

appeal proceedings, the former classification provisions

continue to apply to and in relation to the person pending the

outcome of those proceedings.

[Section 72 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

Division 2

s. 73

page 101 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

73. Rights of review and appeal no longer apply if application

made under s. 19 or 20

If a person to whom a negative notice has been issued applies to

the CEO on or after commencement day for the notice to be

cancelled under section 19 or 20 —

(a) all rights of review and appeal in relation to the negative

notice are taken to have been exhausted for the purposes

of this Subdivision; and

(b) the former classification provisions cease to apply to and

in relation to the person.

[Section 73 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

74. Application of new classification provisions

(1) Despite any other section in this Subdivision, the new

classification provisions apply to and in relation to a person if

the person is charged with, or convicted of, an offence on or

after commencement day that is classified as a Class 1 offence

or a Class 2 offence under those provisions.

(2) If the new classification provisions apply to a person by

operation of subsection (1), a classification of an offence by

virtue of those provisions applies to and in relation to the person

even if the offence was not a Class 1 offence or a Class 2

offence (as the case may be) at the time when the offence was

committed or allegedly committed.

[Section 74 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Subdivision 3 — Other provisions

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

75. Application of amended s. 12

Section 12, as in force on and after commencement day, applies

to and in relation to a person who is subject to Subdivision 2.

[Section 75 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Working with Children (Criminal Record Checking) Act 2004

Part 6 Transitional provisions

Division 2 Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

s. 76

page 102 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

76. Processes associated with interim negative notice

(1) Section 13, as in force immediately before commencement day,

continues to apply in relation to an interim negative notice

issued before commencement day.

(2) Unless subsection (1) applies, section 13AA applies to and in

relation to the following —

(a) a pre-commencement assessment application;

(b) a decision of the CEO to act under section 17(3)(d) if the

CEO has not made a decision under section 12 before

commencement day;

(c) a decision by the CEO to act under section 20 before

commencement day if the correct notice to be

substituted would be a negative notice and the CEO has

not made a decision under that section before

commencement day;

(d) a notice that the CEO must treat under section 32(1) as

an application for an assessment notice if the CEO has

not made a decision under section 12 before

commencement day.

[Section 76 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

77. Application of Part 3B

The powers conferred by Part 3B may be exercised in relation to

a suspected offence under this Act, or other conduct, whether

occurring before, on or after commencement day.

[Section 77 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

78. Disclosure of information by CEO

(1) This section applies if the CEO has given a notice to a person

under section 38(2) or (3) before commencement day.

(2) Despite the repeal of section 38 by the 2022 Amendment Act,

the CEO must comply with subsection (4) of that section if

circumstances referred to in that subsection occur on or after

commencement day.

[Section 78 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Working with Children (Criminal Record Checking) Act 2004

Transitional provisions Part 6

Transitional provisions for Working with Children (Criminal Record Checking) Amendment Act 2022

Division 2

s. 79

page 103 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

79. Transitional regulations

(1) In this section —

specified means specified or described in the regulations;

transitional matter

(a) means a matter or issue of a transitional nature that

arises as a result of any of the amendments to this Act

made by the 2022 Amendment Act; and

(b) includes a saving or application matter.

(2) If there is not sufficient provision in this Division for dealing

with a transitional matter, the regulations may prescribe all

matters that are required, necessary or convenient to be

prescribed for dealing with the matter.

(3) If regulations made under subsection (2) provide that a specified

state of affairs is taken to have existed, or not to have existed,

on and from a day that is earlier than the day on which the

regulations are published in the Gazette but not earlier than

commencement day, the regulations have effect according to

their terms.

(4) If regulations made under subsection (2) contain a provision of a

kind described in subsection (3), the provision does not operate

so as —

(a) to affect in a manner prejudicial to any person (other

than the State or an authority of the State) the rights of

that person existing before the day of publication of

those regulations; or

(b) to impose liabilities on any person (other than the State

or an authority of the State) in respect of anything done

or omitted to be done before the day of publication of

those regulations.

[Section 79 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 44.]

Working with Children (Criminal Record Checking) Act 2004

Schedule 1 Class 1 offences

page 104 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Schedule 1 — Class 1 offences

[s. 7(1)]

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 45.]

Enactment Description of offence Conditions

The Criminal Code

s. 181 Carnal knowledge of animal

s. 186(1) Occupier or owner allowing

child to be on premises for

unlawful carnal knowledge

s. 187(2) Facilitating sexual offence

against child outside Western

Australia

s. 191 Procuring person to be

prostitute

The victim is a child

s. 192 Procuring person to have

unlawful carnal knowledge by

threat, fraud or administering

drug

The victim is a child

s. 204A(2) Showing offensive material to

child under 16

The offensive material is child

exploitation material as

defined in The Criminal Code

section 217A

The offence does not fall

within the ambit of

section 7(3)

s. 204B Using electronic

communication to procure, or

expose to indecent matter,

child under 16

The offence does not fall

within the ambit of

section 7(3)

s. 217 Involving child in child

exploitation

The offence does not fall

within the ambit of

section 7(3)

s. 218 Producing child exploitation

material

The offence does not fall

within the ambit of

section 7(3)

s. 219 Distributing child exploitation

material

The offence does not fall

within the ambit of

section 7(3)

Working with Children (Criminal Record Checking) Act 2004

Class 1 offences Schedule 1

page 105 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

s. 220 Possession of child

exploitation material

The offence does not fall

within the ambit of

section 7(3)

s. 279 Murder The victim is a child

s. 294 Act intended to cause

grievous bodily harm or

prevent arrest

The victim is a child

s. 305 Setting dangerous thing The intended victim is a child

s. 306(2) Female genital mutilation The victim is a child

s. 306(4) Female genital mutilation –

taking or arranging for child

to be taken from the State

s. 317A(b) Assault with intent to do

grievous bodily harm

The victim is a child

s. 320 Sexual offences against child

under 13

s. 321 Sexual offences against child

of or over 13 and under 16

The offence does not fall

within the ambit of

section 7(3)

s. 321A(4)

Persistent sexual conduct with

child under 16

The offence does not fall

within the ambit of

section 7(3)

s. 322 Sexual offences against child

of or over 16 by person in

authority etc.

s. 323 Indecent assault The victim is a child

The offence does not fall

within the ambit of

section 7(3)

s. 324 Aggravated indecent assault The victim is a child

The offence does not fall

within the ambit of

section 7(3)

s. 325 Sexual penetration without

consent

The victim is a child

The offence does not fall

within the ambit of

section 7(3)

Working with Children (Criminal Record Checking) Act 2004

Schedule 1 Class 1 offences

page 106 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

s. 326 Aggravated sexual

penetration without consent

The victim is a child

The offence does not fall

within the ambit of

section 7(3)

s. 327 Sexual coercion The victim is a child

s. 328 Aggravated sexual coercion The victim is a child

s. 329(2) Sexually penetrating child

known to be lineal relative or

de facto child

s. 329(3) Procuring, inciting or

encouraging child known to

be lineal relative or de facto

child to engage in sexual

behaviour

s. 329(4) Indecently dealing with child

known to be lineal relative or

de facto child

s. 329(5) Procuring, inciting or

encouraging child known to

be lineal relative or de facto

child to do indecent act

s. 329(6) Indecently recording child

known to be lineal relative or

de facto child

s. 330 Sexual offences against

incapable person

s. 331B Sexual servitude The victim is a child or an

incapable person

s. 331C(2) Conducting business

involving sexual servitude

The victim is a child or an

incapable person

s. 331D Deceptive recruiting for

commercial sexual services

The victim is a child or an

incapable person

s. 332 Kidnapping The victim is a child and the

offence is committed by a

person other than a relative of

the child

s. 343 Child stealing The offence is committed by a

person other than a relative of

the child

Working with Children (Criminal Record Checking) Act 2004

Class 1 offences Schedule 1

page 107 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

repealed

s. 278 (as

read with

repealed

s. 282)

Wilful murder The victim is a child

repealed

s. 281A (as

read with

repealed

s. 287A)

Infanticide

Children and Community Services Act 2004

s. 192 Employing child, or

permitting child to be

employed, to perform in

indecent, obscene or

pornographic manner

Classification (Publications, Films and Computer Games) Enforcement

Act 1996

s. 59(1) Possessing or copying

indecent or obscene article

with intent to sell or supply,

or selling or supplying, or

offering to sell or supply,

indecent or obscene article

The article is child

exploitation material as

defined in The Criminal Code

section 217A

s. 59(3) or (4) Displaying, exhibiting or

demonstrating indecent or

obscene article in specified

circumstances

The article is child

exploitation material as

defined in The Criminal Code

section 217A

s. 59(5) Possessing or copying

indecent or obscene article

The article is child

exploitation material as

defined in The Criminal Code

section 217A

The offence does not fall

within the ambit of

section 7(3)

s. 101(1) Using computer service to

transmit, obtain, demonstrate,

advertise or request

objectionable material

The material is child

exploitation material as

defined in The Criminal Code

section 217A

repealed s. 60 Child pornography The offence does not fall

within the ambit of

section 7(3)

Working with Children (Criminal Record Checking) Act 2004

Schedule 1 Class 1 offences

page 108 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

Prostitution Act 2000

s. 16 Causing, permitting or

seeking to induce child to act

as prostitute

s. 17(1) Obtaining payment for

prostitution by child

s. 18(1) Agreement for prostitution of

child

[Schedule 1 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 45.]

Working with Children (Criminal Record Checking) Act 2004

Class 2 offences Schedule 2

page 109 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Schedule 2 — Class 2 offences

[s. 7(2)]

[Heading inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 45.]

Enactment Description of offence Conditions

The Criminal Code

s. 192 Procuring person to have

unlawful carnal knowledge by

threat, fraud or administering

drug

The victim is a person other

than a child

s. 204A(2) Showing offensive material to

child under 16

The offensive material is child

exploitation material as

defined in The Criminal Code

section 217A

The offence falls within the

ambit of section 7(3)

s. 204B Using electronic

communication to procure, or

expose to indecent matter,

child under 16

The offence falls within the

ambit of section 7(3)

s. 217 Involving child in child

exploitation

The offence falls within the

ambit of section 7(3)

s. 218 Producing child exploitation

material

The offence falls within the

ambit of section 7(3)

s. 219 Distributing child

exploitation material

The offence falls within the

ambit of section 7(3)

s. 220 Possession of child

exploitation material

The offence falls within the

ambit of section 7(3)

s. 221BD(2) Distribution of intimate

image

The image is of a child

s. 279 Murder The victim is a person other

than a child

s. 280 Manslaughter

s. 281 Unlawful assault causing

death

s. 284(3)(c) Culpable driving (not of

motor vehicle) causing death

Working with Children (Criminal Record Checking) Act 2004

Schedule 2 Class 2 offences

page 110 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

s. 284(3)(d) Culpable driving (not of

motor vehicle) causing

grievous bodily harm

s. 288 Procuring, counselling or

aiding another to commit

suicide

s. 290 Preventing birth of live child

s. 292 Disabling in order to commit

indictable offence

s. 293 Stupefying in order to commit

indictable offence

s. 294 Act intended to cause

grievous bodily harm or

prevent arrest

The victim is a person other

than a child

s. 297 Grievous bodily harm

s. 298 Suffocation and strangulation

s. 300 Persistent family violence One or more of the prescribed

offences under The Criminal

Code section 299 are offences

listed in Schedule 1 or this

Schedule

s. 301 Wounding and similar acts

s. 305 Setting dangerous thing The intended victim is a

person other than a child

s. 306(2) Female genital mutilation The victim is a person other

than a child

s. 317A(b) Assault with intent to do

grievous bodily harm

The victim is a person other

than a child

s. 321 Sexual offences against child

of or over 13 and under 16

The offence falls within the

ambit of section 7(3)

s. 321A(4) Persistent sexual conduct with

child under 16

The offence falls within the

ambit of section 7(3)

s. 323 Indecent assault The victim is a person other

than a child

or

The offence falls within the

ambit of section 7(3)

Working with Children (Criminal Record Checking) Act 2004

Class 2 offences Schedule 2

page 111 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

s. 324 Aggravated indecent assault The victim is a person other

than a child

or

The offence falls within the

ambit of section 7(3)

s. 325 Sexual penetration without

consent

The victim is a person other

than a child

or

The offence falls within the

ambit of section 7(3)

s. 326 Aggravated sexual penetration

without consent

The victim is a person other

than a child

or

The offence falls within the

ambit of section 7(3)

s. 327 Sexual coercion The victim is a person other

than a child

s. 328 Aggravated sexual coercion The victim is a person other

than a child

s. 329(7) Sexually penetrating person

of or over 18 known to be

lineal relative

s. 329(8) Consenting to being sexually

penetrated by person known

to be lineal relative

s. 331B Sexual servitude The victim is a person other

than a child or an incapable

person

s. 331C(2) Conducting business

involving sexual servitude

The victim is a person other

than a child or an incapable

person

s. 331D Deceptive recruiting for

commercial sexual services

The victim is a person other

than a child or an incapable

person

Working with Children (Criminal Record Checking) Act 2004

Schedule 2 Class 2 offences

page 112 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

s. 332 Kidnapping The victim is a person other

than a child

or

The victim is a child and the

offence is committed by a

relative of the child

s. 343 Child stealing The offence is committed by a

relative of the child

repealed

s. 278 (as read

with repealed

s. 282)

Wilful murder The victim is a person other

than a child

Animal Welfare Act 2002

s. 19 Cruelty to animals This item does not apply if the

CEO is satisfied that the

offence did not involve

serious cruelty to an animal

Children and Community Services Act 2004

s. 101(1) Failing to protect child from

significant harm

s. 102 Leaving child unsupervised in

vehicle

Classification (Publications, Films and Computer Games) Enforcement

Act 1996

s. 59(5) Possessing or copying

indecent or obscene article

The article is child

exploitation material as

defined in The Criminal Code

section 217A

The offence falls within the

ambit of section 7(3)

repealed s. 60 Child pornography The offence falls within the

ambit of section 7(3)

Disability Services Act 1993

s. 53 Offence of ill-treatment

Working with Children (Criminal Record Checking) Act 2004

Class 2 offences Schedule 2

page 113 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence Conditions

Misuse of Drugs Act 1981

s. 7B(4) Selling drug paraphernalia to

child

repealed

s. 19A(2)

Selling, or offering to sell,

cannabis smoking

paraphernalia to child

repealed

s. 19B(2)

Selling, or offering to sell, ice

pipe to child

Road Traffic Act 1974

s. 59 Dangerous driving causing

death

s. 59 Dangerous driving causing

grievous bodily harm

[Schedule 2 inserted: Working with Children (Criminal Record

Checking) Amendment Bill 2022 cl. 45.]

Working with Children (Criminal Record Checking) Act 2004

Schedule 1 Class 1 offences

page 114 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Schedule 1 — Class 1 offences

[s. 7(1)]

Enactment Description of offence

The Criminal Code

s. 186(1) Occupier or owner allowing a child to be on

premises for unlawful carnal knowledge (if the

child in relation to whom the offence is

committed is under 13)

s. 320(2) Sexually penetrating child under 13

s. 320(3) Procuring, inciting or encouraging child

under 13 to engage in sexual behaviour

s. 321A Persistent sexual conduct with child under 16

(if the offence includes a sexual act on at least

one occasion when the child against whom the

offence is committed is under 13)

s. 325 Sexual penetration without consent (if the

person against whom the offence is committed

is a child under 13)

s. 326 Aggravated sexual penetration without

consent (if the person against whom the

offence is committed is a child under 13)

s. 327 Sexual coercion (if the person against whom

the offence is committed is a child under 13)

s. 328 Aggravated sexual coercion (if the person

against whom the offence is committed is a

child under 13)

s. 329(2) Sexually penetrating child known to be lineal

relative or de facto child (if the child against

whom the offence is committed is under 13)

s. 329(3) Procuring, inciting or encouraging child

known to be lineal relative or de facto child to

engage in sexual behaviour (if the child

against whom the offence is committed is

under 13)

Crimes Act 1914 of the

Commonwealth

s. 50BA Sexual intercourse with child under 16 (if the

child against whom the offence is committed

is under 13)

Working with Children (Criminal Record Checking) Act 2004

Class 1 offences Schedule 1

page 115 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence

s. 50BB Inducing child under 16 to engage in sexual

intercourse (if the child against whom the

offence is committed is under 13)

[Schedule 1 amended: No. 2 of 2008 s. 74; No. 8 of 2009 s. 140(2);

No. 7 of 2010 s. 24.]

Working with Children (Criminal Record Checking) Act 2004

Schedule 2 Class 2 offences

page 116 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Schedule 2 — Class 2 offences

[s. 7(2)]

Enactment Description of offence

The Criminal Code

s. 181 Carnal knowledge of animal

s. 186(1) Occupier or owner allowing a child to be on

premises for unlawful carnal knowledge (if the

child in relation to whom the offence is

committed is 13 or over)

s. 187 Facilitating sexual offences against children

outside Western Australia

s. 204B Using electronic communication to procure, or

expose to indecent matter, children under 16

s. 217 Involving child in child exploitation

s. 218 Production of child exploitation material

s. 219 Distribution of child exploitation material

s. 220 Possession of child exploitation material

s. 221BD Distribution of intimate image where image is

of a child

s. 279 Murder

s. 280 Manslaughter

s. 281 Unlawful assault causing death

s. 290 Killing unborn child

s. 297 Grievous bodily harm

s. 320(4) Indecent dealing with child under 13

s. 320(5) Procuring, inciting or encouraging child

under 13 to do indecent act

s. 320(6) Indecently recording child under 13

s. 321 Sexual offences against child of or

over 13 and under 16

s. 321A Persistent sexual conduct with child under 16

(if the offence does not include a sexual act on

any occasion when the child against whom the

offence is committed is under 13)

s. 322 Sexual offences against child of or over 16 by

person in authority etc.

s. 323 Indecent assault

Working with Children (Criminal Record Checking) Act 2004

Class 2 offences Schedule 2

page 117 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence

s. 324 Aggravated indecent assault

s. 325 Sexual penetration without consent

s. 326 Aggravated sexual penetration without

consent

s. 327 Sexual coercion

s. 328 Aggravated sexual coercion

s. 329(2) Sexually penetrating child known to be lineal

relative or de facto child (if the child against

whom the offence is committed is 13 or over)

s. 329(3) Procuring, inciting or encouraging child

known to be lineal relative or de facto child to

engage in sexual behaviour (if the child

against whom the offence is committed is

13 or over)

s. 329(4) Indecent dealing with child known to be lineal

relative or de facto child

s. 329(5) Procuring, inciting or encouraging child

known to be lineal relative or de facto child to

do indecent act

s. 329(6) Indecently recording child known to be lineal

relative or de facto child

s. 330 Sexual offences against incapable person

s. 331B Sexual servitude

s. 331C Conducting business involving sexual

servitude

s. 331D Deceptive recruiting for commercial sexual

services

s. 332 Kidnapping

s. 343 Child stealing

Classification (Publications,

Films and Computer

Games) Enforcement

Act 1996

the deleted s. 60 Child pornography

s. 101 Objectionable material offences (if the

objectionable material is child pornography)

Misuse of Drugs Act 1981

s. 7B(4) Selling drug paraphernalia to a child

Working with Children (Criminal Record Checking) Act 2004

Schedule 2 Class 2 offences

page 118 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence

s. 19B(2) Selling, or offering to sell, ice pipe to child

Prostitution Act 2000

s. 16 Causing, permitting or seeking to induce child

to act as prostitute

s. 17 Obtaining payment for prostitution by child

s. 18 Agreement for prostitution by child

Children and Community

Services Act 2004

s. 101 Failing to protect child from significant harm

s. 102 Leaving child unsupervised in vehicle

s. 192 Employing child, or permitting child to be

employed, to perform in indecent, obscene or

pornographic manner

Misuse of Drugs Act 1981

s. 19A(2) Selling, or offering to sell, cannabis smoking

paraphernalia to a child

Crimes Act 1914 of the

Commonwealth

s. 50BA Sexual intercourse with child under 16 (if the

child against whom the offence is committed

is 13 or over)

s. 50BB Inducing child under 16 to engage in sexual

intercourse (if the child against whom the

offence is committed is 13 or over)

s. 50BC Sexual conduct involving a child under 16

s. 50BD Inducing child under 16 to be involved in

sexual conduct

s. 50DA Benefiting from offence against Part IIIA

s. 50DB Encouraging offence against Part IIIA

Criminal Code Act 1995 of

the Commonwealth

s. 474.19 Using a carriage service for child pornography

material

s. 474.20 Possessing, controlling, producing, supplying

or obtaining child pornography material for

use through a carriage service

Working with Children (Criminal Record Checking) Act 2004

Class 2 offences Schedule 2

page 119 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Enactment Description of offence

s. 474.22 Using a carriage service for child abuse

material

s. 474.23 Possessing, controlling, producing, supplying

or obtaining child abuse material for use

through a carriage service

s. 474.26 Using a carriage service to procure persons

under 16

s. 474.27 Using a carriage service to “groom” persons

under 16

Customs Act 1901 of the

Commonwealth

s. 233BAB Special offences relating to tier 2 goods (if the

offence involves items of child pornography

or of child abuse material)

[Schedule 2 amended: No. 3 of 2006 s. 7; No. 27 of 2008 s. 13(3) and

(4); No. 29 of 2008 s. 40; No. 8 of 2009 s. 140(3); No. 7 of 2010 s. 25;

No. 21 of 2010 s. 15; No. 45 of 2010 s. 15; No. 50 of 2010 s. 6; No. 56

of 2011 s. 15; No. 4 of 2019 s. 14.]

Working with Children (Criminal Record Checking) Act 2004

Notes Compilation table

page 120 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Notes This is a compilation of the Working with Children (Criminal Record Checking)

Act 2004 and includes amendments made by other written laws. For provisions that

have come into operation, and for information about any reprints, see the compilation

table. For provisions that have not yet come into operation see the uncommenced

provisions table.

Compilation table

Short title Number

and year

Assent Commencement

Working with Children

(Criminal Record

Checking) Act 2004

65 of 2004 8 Dec 2004 s. 1 and 2: 8 Dec 2004;

Act other than s. 1, 2 and

50-52: 1 Jan 2006 (see s. 2 and

Gazette 30 Dec 2005 p. 6875);

s. 50-52: 1 Jan 2007 (see s. 2

and Gazette 29 Dec 2006

p. 5867)

Criminal Code Amendment

(Cyber Predators) Act 2006

s. 7

3 of 2006 30 Mar 2006 30 Mar 2006 (see s. 2(1))

Child Care Services

Act 2007 Pt. 7 Div. 4

19 of 2007 3 Jul 2007 10 Aug 2007 (see s. 2(b) and

Gazette 9 Aug 2007 p. 4071)

Criminal Law and Evidence

Amendment Act 2008 s. 74

2 of 2008 12 Mar 2008 27 Apr 2008 (see s. 2 and

Gazette 24 Apr 2008 p. 1559)

Criminal Law Amendment

(Homicide) Act 2008 s. 40

29 of 2008 27 Jun 2008 1 Aug 2008 (see s. 2(c) and (d)

and Gazette 22 Jul 2008

p. 3353)

Community Protection

(Offender Reporting)

Amendment Act 2008 s. 13

27 of 2008 1 Jul 2008 2 Jul 2008 (see s. 2(b))

Reprint 1: The Working with Children (Criminal Record Checking) Act 2004 as at

14 Nov 2008 (includes amendments listed above)

Statutes (Repeals and

Miscellaneous

Amendments) Act 2009

s. 140

8 of 2009 21 May 2009 22 May 2009 (see s. 2(b))

Working with Children

(Criminal Record

Checking) Amendment

Act 2010 Pt. 2

7 of 2010 27 May 2010 6 Oct 2010 (see s. 2(b) and

Gazette 5 Oct 2010 p. 5113)

Child Pornography and

Exploitation Material and

Classification Legislation

Amendment Act 2010 s. 15

21 of 2010 7 Jul 2010 28 Aug 2010 (see s. 2(b) and

Gazette 27 Aug 2010 p. 4105)

Cannabis Law Reform

Act 2010 Pt. 6

45 of 2010 28 Oct 2010 1 Aug 2011 (see s. 2(b) and

Gazette 29 Jul 2011 p. 3127)

Children and Community

Services Amendment

Act 2010 Pt. 2 Div. 2

49 of 2010 24 Nov 2010 31 Jan 2011 (see s. 2(b) and

Gazette 28 Jan 2011 p. 241)

Working with Children (Criminal Record Checking) Act 2004

Uncommenced provisions table Notes

page 121 [This compilation shows amendments proposed by Bill No. 81-1 (Pt. 2).]

Short title Number

and year

Assent Commencement

Misuse of Drugs

Amendment Act

(No. 2) 2010 Pt. 3

50 of 2010 24 Nov 2010 25 Nov 2010 (see s. 2(b))

Reprint 2: The Working with Children (Criminal Record Checking) Act 2004 as at

7 Jan 2011 (includes amendments listed above except those in the Cannabis Law Reform

Act 2010 and Children and Community Services Amendment Act 2010)

Child Care Services

Amendment Act 2011 Pt. 3

38 of 2011 4 Oct 2011 7 Jan 2012 (see s. 2(b) and

Gazette 6 Jan 2012 p. 3)

Misuse of Drugs

Amendment Act 2011 Pt. 5

56 of 2011 21 Nov 2011 30 Jan 2013 (see s. 2(b) and

Gazette 29 Jan 2013 p. 324-5)

Reprint 3: The Working with Children (Criminal Record Checking) Act 2004 as at

17 Feb 2012 (includes amendments listed above except those in the Misuse of Drugs

Amendment Act 2011)

Education and Care

Services National Law

(WA) Act 2012 Pt. 4 Div. 9

11 of 2012 20 Jun 2012 1 Aug 2012 (see s. 2(c) and

Gazette 25 Jul 2012 p. 3411)

Education and Care

Services National Law

(WA) Amendment Act 2018

Pt. 4

18 of 2018 7 Sep 2018 1 Oct 2018 (see s. 2(b)(i))

Historical Homosexual

Convictions Expungement

Act 2018 Pt. 5

20 of 2018 18 Sep 2018 15 Oct 2018 (see s. 2(b) and

Gazette 12 Oct 2018 p. 4059)

Criminal Law Amendment

(Intimate Images) Act 2019

Pt. 4

4 of 2019 26 Feb 2019 15 Apr 2019 (see s. 2(b) and

Gazette 9 Apr 2019 p. 1041)

National Disability

Insurance Scheme (Worker

Screening) Act 2020 Pt. 7

Div. 2

48 of 2020 9 Dec 2020 1 Feb 2021 (see s. 2(1)(b) and

SL 2021/4 cl. 2)

Working with Children

(Criminal Record

Checking) Amendment

Bill 2022 Pt. 2

Current Bill

No. 81-1

Uncommenced provisions table

To view the text of the uncommenced provisions see Acts as passed on the WA

Legislation website.

Short title Number

and year

Assent Commencement

Commissioner for

Children and Young

People Act 2006

s. 65 (Sch. 1 cl. 3)

48 of 2006 4 Oct 2006 To be proclaimed (see s. 2)

Prostitution Amendment

Act 2008 s. 35

13 of 2008 14 Apr 2008 To be proclaimed (see s. 2(b))