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
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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
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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
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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
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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
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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
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(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
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(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;
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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;
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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
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(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);
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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;
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(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
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(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
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(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 —
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(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).
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(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),
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Part 2 Assessment notices and negative notices
Division 2 Issue of assessment notices and negative notices
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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)
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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)
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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;
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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.
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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
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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
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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
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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.]
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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
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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
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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
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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).
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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.]
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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.]
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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.]
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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)
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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)
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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
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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
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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))
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