The purpose of the Victorian Working with Children Amendment Act 2010 is to:
• streamline the existing working-with-children check application and assessment processes by introducing additional flexibilities and clarifications to the act;
• improve the operation of the working-with-children check and reduce the regulatory burden;
• improve the flow and exchange of information to further enhance the working-with-children check; and
• create additional offences to ensure persons not considered suitable to work with children do not receive an assessment notice.
Most of the Act came into effect on 25 August. The Act provides further protection to children by inserting three additional offences. These offence provisions further strengthen the enforcement powers of the act.
Importantly, the Act amends the act to make it an offence for sex offenders registered under the Sex Offenders Registration Act 2004 and persons subject to extended supervision, supervision or detention orders to apply for an assessment notice under the Working with Children Act. This is in keeping with the government’s rigorous regulating of sex offenders.
Currently, sex offenders are prohibited from obtaining a working-with-children check. This amendment extends that prohibition and makes it an offence for them to even apply. A category 1 application is one where the applicant, as an adult, has committed a serious offence of a sexual nature against a child. This category also includes child pornography offences. Under the act, the secretary has no discretion to issue a category 1 applicant with an assessment notice. The Act reduces the time a category 1 applicant has to make a submission on a proposed negative notice from 28 days to 14 days. This will have the effect of allowing a negative notice to be issued sooner.
A key function of the Act is to introduce a streamlined renewal process. Currently, an assessment notice lasts for five years so, in 2011, the first renewals will be received by the Department of Justice. This amendment introduces a simplified renewal process that reduces the burden on the Victorian community whilst maintaining all appropriate safeguards.
The Act will allow the working-with-children-check card to be used as proof of identity by people who are renewing their assessment notice, given that the proof of identity documentation was previously provided when they first applied for an assessment notice. To facilitate this, the department will issue a renewal notice.
An important aspect of the working-with-children check is ongoing monitoring. The Act enables the secretary to issue a new assessment notice without again considering offences that have already been considered as part of the current assessment notice where there has been no change is that person’s criminal history.
At 10 years, a new application will be required with all the proof of identity documentation.
Following from discussions with the child safety commissioner, and recommendations from employers and members of the community, employers are intended to benefit from the provisions in the Act that require assessment notice holders to notify the secretary of a change in their employer or volunteer organisation details within 21 days.
A further issue raised by the child safety commissioner was that people could surrender their assessment notice without notifying their employer or voluntary organisation. The Act addresses this by amending the act to require the secretary to notify employers and volunteer organisations when a person surrenders their assessment notice. Upon reassessment of an assessment notice, the Act creates an additional power for the secretary to suspend an assessment notice if the person undergoing reassessment fails to provide requested information.
The Act will also require the secretary to notify that person’s employer, agency or volunteer organisation in writing of the suspension. A person who engages in child-related work while the assessment notice is suspended will be treated as if they do not have an assessment notice.
The Act also allows for the reinstatement of the assessment notice upon the provision of the requested information so that an applicant does not have to reapply and incur an additional fee. As identified by the Scrutiny of Acts and Regulations Committee, the interaction between the exceptional circumstances provisions of the act and when a charge is pending could possibly allow the secretary to issue a negative notice based on charges that had been withdrawn or dismissed.
The Act now amends the act to clarify that charges that have been finally dealt with, such as by way of being withdrawn or dismissed, cannot be considered by the secretary in assessing an application or in deciding whether to revoke an assessment notice. Further to this, the Act clarifies the act to recognise that a charge is no longer pending once a diversion order is completed under the Criminal Procedure Act 2009 and thus does not form part of the secretary’s consideration in respect of some applications.
The Act allows the secretary to share information about negative notice holders to assist other jurisdictions in their assessment of the suitability of those people to work with children. The Act also amends the main act through expanding the obligation on the Chief Commissioner of Police to notify the secretary of a broader category of offences that present a significant risk to the safety of children. This information will assist the secretary in determining whether or not to revoke an assessment notice.
The Act adds members of the Australian Federal Police to the category of exempt persons and carries with it an offence provision should a member be suspended or terminated from employment and fail to notify that person or agency with whom they are engaged in child related work. This is consistent with the exemption of Victoria Police.
Amendments to the Child Employment Act 2003
The Act makes consequential amendments to the Child Employment Act. These consequential amendments ensure that the child employment and working-with-children check schemes continue to be aligned. In particular, the Bill amends the Child Employment Act to exempt sworn Australian Federal Police officers and makes provision for the suspension of assessment notices.