New South Wales: Child Protection (Working with Children) Act 2012 (NSW)

Child Protection (Working with Children) Act 2012 No 51 An Act with respect to checks and clearances for the purposes of working with children; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Child Protection (Working with Children) Act 2012. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Object of Act The object of this Act is to protect children— (a) by not permitting certain persons to engage in child-related work, and (b) by requiring persons engaged in child-related work to have working with children check clearances. Note. For other legislation relating to the safety, welfare and well-being of children, and the related functions of the Children's Guardian, see the Children's Guardian Act 2019. In particular, see section 128 and Part 6 of that Act. 4 Safety, welfare and well-being of children to be paramount consideration The safety, welfare and well-being of children and, in particular, protecting them from child abuse, is the paramount consideration in the operation of this Act. 5 Definitions (1) In this Act— accredited adoption service provider has the same meaning as in the Adoption Act 2000. adult means a person who is 18 years of age or older. application number means the unique number given to an applicant for a working with children check clearance under this Act. approved provider means an approved provider under the Children (Education and Care Services) National Law (NSW) or the Children (Education and Care Services) Supplementary Provisions Act 2011. assessment requirement—see section 14. authorised carer has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. authorised officer means a person appointed as an authorised officer by the Children's Guardian under section 50B of this Act. carer applicant has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. child-related work—see sections 6 and 7. children means persons under the age of 18 years. Children's Guardian means the Children's Guardian appointed under section 115 of the Children's Guardian Act 2019. continuing residence approval means an approval granted by the Children's Guardian under section 11D that is in force. conviction includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction. criminal history—see section 5C. current application for a working with children check clearance means an application that has not been finally determined or withdrawn or terminated. Department means the Department of Communities and Justice. designated agency has the same meaning as in the Children's Guardian Act 2019. disqualified person—see section 18(1). education and care service means an education and care service within the meaning of the Children (Education and Care Services) National Law (NSW) or a State regulated education and care service within the meaning of the Children (Education and Care Services) Supplementary Provisions Act 2011. employer includes— (a) a person who, in the course of business, arranges for the placement of a person in employment with others, or (b) a person who engages a person under a contract to perform work, or (c) a person who engages a worker to perform work as a volunteer for the person under an agreement (whether written or unwritten). enabling order—see section 28. exercise a function includes perform a duty. family day care service has the same meaning as it has in the Children (Education and Care Services) National Law (NSW). function includes a power, authority or duty. government agency includes any public or local authority. interim bar means an interim bar imposed under section 17. key position, in an organisation, means each of the following— (a) the chief executive of the organisation, (b) the principal officer—if the organisation is a designated agency, a registered agency or an accredited adoption service provider, (c) any other position in the organisation that is of a kind prescribed by the regulations. notifiable person in relation to an applicant for a clearance or the holder of a clearance means each of the following— (a) any employer or proposed employer of the applicant or holder in respect of child-related work, (b) if the applicant or holder resides on the same property as an authorised carer or carer applicant—the designated agency that authorised the carer or to whom the carer applicant made the application, (c) if the applicant or holder resides on a property where a family day care service is provided—the approved provider of the service, (d) if the applicant or holder is a prospective adoptive parent or an adult resident within the meaning of section 11—the relevant decision-maker (within the meaning of that section) in relation to the prospective adoptive parent, (e) if the applicant or holder is a prospective guardian or an adult resident within the meaning of section 11A—the relevant decision-maker (within the meaning of that section) in relation to the prospective guardian, (f) any other person prescribed by the regulations. principal officer of— (a) an accredited adoption service provider—has the same meaning as in the Children's Guardian Act 2019, or (b) a designated agency or a registered agency—has the same meaning as in the Children's Guardian Act 2019. prospective adoptive parent means a person who has submitted an application under the Adoption Act 2000 to adopt a child and whose application has not been withdrawn or finally dealt with by the making of or refusal to make an adoption order. prospective guardian has the same meaning as in the Children and Young Persons (Care and Protection) Act 1998. registered agency has the same meaning as in the Children's Guardian Act 2019. reporting body—see section 35(4). reside on a property has the meaning given by section 5A. Secretary means the Secretary of the Department. Tribunal means the Civil and Administrative Tribunal. worker means any person who is engaged in work in any of the following capacities— (a) as an employee, (b) as a self-employed person or as a contractor or subcontractor, (c) as a volunteer, (d) as a person undertaking practical training as part of an educational or vocational course (other than as a school student undertaking work experience), (e) as a minister, priest, rabbi, mufti or other like religious leader or spiritual officer of a religion or other member of a religious organisation. working day means any day that is not a Saturday, Sunday or public holiday. working with children check clearance or clearance means an authorisation that is in force under this Act to engage in child-related work. working with children number means the number given for a working with children check clearance under this Act. working with children register means the register established under section 25. Note. The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Notes included in this Act do not form part of this Act. 5A Meaning of "reside on a property" (1) Subject to subsection (2), a person resides on a property if the person resides (which includes sleep on a regular or frequent basis) anywhere on the property (whether or not in a building, caravan, structure, vehicle or other thing). (2) The regulations may prescribe circumstances in which a person is, or is not, taken to reside on a property (including by prescribing circumstances in which 2 persons are, or are not, taken to be residing on the same property). 5B Meaning of "risk to the safety of children" A reference in this Act to a risk to the safety of children is a reference to a real and appreciable risk to the safety of children. 5C Meaning of "criminal history" (1) A person's criminal history includes— (a) convictions (including convictions that have been spent, quashed or set aside or for which a pardon has been granted), despite anything to the contrary in the Criminal Records Act 1991, and (b) criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged, and (c) convictions or findings to which section 579 of the Crimes Act 1900 applies (despite the provisions of that section). (2) In this section— conviction has the same meaning as it has in the Criminal Records Act 1991. Part 2 Restrictions on child-related work Division 1 Child-related work 6 Child-related work (1) A worker is engaged in child-related work for the purposes of this Act if— (a) the worker is engaged in work referred to in subsection (2) that involves direct contact by the worker with a child or children and that contact is a usual part of and more than incidental to the work, or (b) the worker is engaged in work in a child-related role referred to in subsection (3). (2) The work referred to is work for, or in connection with, any of the following that is declared by the regulations to be child-related work— (a) child development mentoring and counselling services for children, (b) child protection child protection services, (c) children's health services the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services, (d) clubs or other bodies providing services for children clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children, (e) disability services respite care or other support services for children with a disability, (f) early education and child care education and care services, child care centres, nanny services and other child care, (g) education schools or other educational institutions (other than universities) and private coaching or tuition of children, (h) entertainment for children sporting, cultural or other entertainment venues used primarily by children and entertainment services for children, (i) justice services detention centres (within the meaning of the Children (Detention Centres) Act 1987) and juvenile correctional centres (within the meaning of the Crimes (Administration of Sentences) Act 1999), (j) religious services any religious organisation, (k) residential services refuges used by children, long term home stays for children, boarding houses or other residential services for children and overnight camps for children, (l) transport services for children transport services especially for children, including school bus services and taxi services for children with a disability and supervision of school road crossings, (m) other any other service for children prescribed by the regulations. (3) The following roles are referred to— (a) an approved provider or manager of an education and care service, (b) a nominated supervisor (within the meaning of the Children (Education and Care Services) National Law (NSW) of an education and care service, (c) an authorised carer, (d) an assessment officer (within the meaning of section 27A of the Children and Young Persons (Care and Protection) Act 1998), (e) the principal officer of a designated agency, (f) the principal officer of an accredited adoption service provider, (g) any other role with respect to children prescribed by the regulations. (3A) The regulations may provide for circumstances in which direct contact by a worker with a child or children is taken to be a usual part of and more than incidental to a worker's work. (4) In this section— direct contact with children means— (a) physical contact, or (b) face to face contact. 7 Additional child-related work (1) A worker is taken to be engaged in child-related work if the worker is engaged, or proposes to engage, in work (other than as a volunteer) that is the subject of a requirement under this section. (2) The employer or proposed employer of a worker engaged in work for which a working with children check clearance is not required that involves access to confidential records or information about children may, by notice in writing to the worker, require the worker to obtain a clearance for the purposes of engaging in the work concerned. (3) The employer, or proposed employer, may at any time, by notice in writing given to the worker, revoke a requirement made under this section. (4) An employer may make or revoke a requirement under this section only with the approval of the Children's Guardian. Division 2 Mandatory requirements for child-related work 8 Restrictions on engaging in child-related work (1) A worker must not engage in child-related work unless— (a) the worker holds a working with children check clearance of a class applicable to the work, or (b) there is a current application by the worker to the Children's Guardian for a clearance of a class applicable to that work. Maximum penalty—100 penalty units, or imprisonment for 2 years, or both. (2) A worker must not engage in child-related work at any time that the worker is subject to an interim bar. Maximum penalty—100 penalty units, or imprisonment for 2 years, or both. (3) It is a defence to proceedings for an offence against this section if the accused person establishes that— (a) the accused person did not know, at the time the offence was committed, that the work concerned was child-related work, or (b) the accused person was exempted by the regulations from the requirement to hold a clearance, or (c) the offence was consequential on the relevant accused person being subject to an interim bar, having an application for a clearance refused or terminated or having a clearance cancelled and, at the time that the offence was committed, the accused person did not know about the interim bar, refusal, termination or cancellation. Note. Division 3 also requires adult persons residing with authorised carers or approved providers of education and care services and potential adoptive parents to hold clearances or to have a current application for a clearance. 9 Employers must require clearance or current application (1) An employer must not commence employing, or continue to employ, a worker in child-related work if the employer knows or has reasonable cause to believe that— (a) the worker is not the holder of a working with children check clearance that authorises that work and that there is no current application by the worker to the Children's Guardian for a clearance of a class applicable to that work, or (b) the worker is subject to an interim bar. Maximum penalty—100 penalty units, in the case of a corporation, and 50 penalty units in any other case. (2) It is a defence to proceedings for an offence against this section if the accused person establishes that, at the time the offence was committed— (a) the accused person had been advised by the Children's Guardian that the worker was the holder of a clearance or that there was a current application by the worker for a clearance, or (b) the worker was exempted by the regulations from the requirement to hold a clearance. (3) This section extends to an employer who, in the course of business, arranges for the placement of a worker in employment with others (a placement agency) if— (a) the employment is child-related work, and (b) the placement agency is a person or a person of a class declared by the regulations to be subject to this section. (4) For the purposes of applying this section to a placement agency referred to in subsection (3), the placement agency is taken to employ the worker during any period in which the placement agency arranges for the employment of the worker in child-related work. 9A Employer must verify and record clearance details (1) An employer must not commence employing, or continue to employ, a worker in child-related work unless the employer has obtained and verified the worker's relevant details and made a record of those relevant details. (2) The worker's relevant details are the following— (a) the worker's full name and date of birth, (b) the working with children number of the worker's clearance or the application number of the worker's current application, (c) the expiry date for each clearance of the worker, being the date on which the clearance ceases to have effect. (3) The worker's relevant details are taken to have been verified only if the relevant details accord with the information relating to the worker recorded in the working with children register as at the date the record is made by the employer. (4) An employer who employs a worker in child-related work must ensure that the record kept under subsection (1) in relation to a worker is updated no later than 5 working days after the expiry date for each clearance of the worker. (5) An employer must retain a record made under this section— (a) during the period in which the worker carries out child-related work for the employer, and (b) for a period of at least 7 years after the worker ceases to carry out child-related work for the employer. (6) An employer who, without reasonable excuse, fails to comply with subsection (1), (4) or (5) is guilty of an offence. Maximum penalty—100 penalty units (in the case of a corporation) or 50 penalty units (in any other case). (7) This section extends to an employer who, in the course of business, arranges for the placement of a worker in employment with others (a placement agency) if— (a) the employment is child-related work, and (b) the placement agency is a person or a person of a class declared by the regulations to be subject to this section. (8) For the purposes of applying this section to a placement agency referred to in subsection (7), the placement agency is taken to employ the worker during any period in which the placement agency arranges for the employment of the worker in child-related work. (9) This section does not apply— (a) in respect of an employer if the employer is an individual who is the parent of, or has the care of, a child or young person and the child-related work relates to that child or young person, or (b) in respect of a worker who is exempted by the regulations from the requirement to hold a clearance, or (c) in respect of an employer who is exempted by the regulations from this section. 9AA Licensing authorities must verify and record clearance details (1) A licensing authority must not issue a relevant licence to a person unless the licensing authority has obtained and verified the person's relevant details and made a record of those relevant details. (2) The person's relevant details are the following— (a) the person's full name and date of birth, (b) the working with children number of the person's clearance or the application number of the person's current application, (c) the expiry date for each clearance of the person, being the date on which the clearance ceases to have effect. (3) The person's relevant details are taken to have been verified only if the relevant details accord with the information relating to the person recorded in the working with children register as at the date the record is made by the licensing authority. (4) A licensing authority must ensure that the record kept under subsection (1) in relation to a person who is the holder of a relevant licence issued by the licensing authority is updated no later than 5 working days after the expiry date for each clearance of the person. (5) A licensing authority must retain a record made under this section— (a) during the period in which the person holds a relevant licence issued by the licensing authority, and (b) for a period of at least 7 years after the person ceases to hold a relevant licence issued by the licensing authority. (6) A licensing authority that, without reasonable excuse, fails to comply with subsection (1), (4) or (5) is guilty of an offence. Maximum penalty—100 penalty units (in the case of a corporation) or 50 penalty units (in any other case). (7) This section does not apply— (a) in respect of a licensing authority that is exempted by the regulations from this section, or (b) in respect of the issue of a licence to a person who is exempted by the regulations from the requirement to hold a clearance. (8) In this section— issue includes grant or renew. licence means a licence, registration, accreditation, certificate, permit or any other authority. licensing authority means a person or body responsible for issuing a licence. relevant licence means a licence, or a licence of a class, declared by the regulations to be a relevant licence. 9B Governing body to ensure persons appointed to key positions hold clearance (1) (Repealed) (2) The governing body of an organisation must ensure that a person is not appointed on a permanent basis to a key position in the organisation that involves child-related work unless the person is the holder of a working with children check clearance of a class applicable to that work. Maximum penalty—100 penalty units, in the case of a corporation, and 50 penalty units in any other case. (3) It is a defence to proceedings for an offence against subsection (2) if the governing body establishes that, at the time the offence was committed— (a) the governing body had been advised by the Children's Guardian that the person was the holder of a clearance, or (b) the working with children register showed that the person was the holder of a clearance, or (c) the governing body was exempted by the regulations from the requirements of this section or the person was exempted from the requirement to hold a clearance. (4) The governing body of an organisation must ensure that whenever a person is appointed on a permanent basis to a key position in the organisation that involves child-related work— (a) a record is kept of how the governing body determined that the person held a working with children check clearance of a class applicable to that work, and (b) that record is retained by the organisation for at least 7 years. Maximum penalty—50 penalty units. (5) Nothing in this section prevents a person being appointed to a key position on a conditional basis, if there is a current application for a clearance of an appropriate class and appointment is conditional on the person obtaining the appropriate clearance as soon as is reasonably practicable and having that clearance considered by the governing body. Division 3 Clearances for other persons 10 Adult persons residing with authorised carers or persons providing family day care services (1) An adult person (other than an exempt person) who resides on the same property as an authorised carer or on a property where a family day care service is provided must hold a working with children check clearance (of any class) or have made a current application to the Children's Guardian for a clearance. Maximum penalty—100 penalty units, or imprisonment for 2 years, or both. (2) The designated agency (that authorised the authorised carer) or the approved provider (of the family day care service) referred to in subsection (1), must ensure that the adult person complies with that subsection. Maximum penalty—100 penalty units, in the case of a corporation, and 50 penalty units in any other case. (3) For the purposes of this section, a person no longer has a clearance or a current application for a clearance if an interim bar is in effect against the person. (4) It is a defence to proceedings for an offence against subsection (1) if the accused person establishes that the accused person did not know, at the time the offence was committed, that the care or service referred to in that subsection was provided on that property. (5) It is a defence to proceedings for an offence under subsection (1) or (2) if the accused person establishes that— (a) the adult person had been residing on the property for less than 3 weeks, or (b) the offence was consequential on the adult person being subject to an interim bar, withdrawing an application, having an application for a clearance terminated or refused or having a clearance cancelled and the accused person— (i) did not know about the interim bar, withdrawal, termination, refusal or cancellation, or (ii) in the case of an adult person who resides on the same property as an authorised carer, had not known about the interim bar, withdrawal, termination, refusal or cancellation for more than 48 hours, or (c) the adult person is the holder of a continuing residence approval granted by the Children's Guardian. (6) For the purposes of the application of this Act (other than sections 9 and 9A) to an adult person required by this section to hold a clearance, the designated agency or approved provider referred to in subsection (2) is to be treated as the employer of the adult person. (7) In this section— exempt person means a person who is required under another provision of this Act to, or is exempt from the requirement to, hold a working with children check clearance. 11 Prospective adoptive parents and adults residing with them (1) This section applies to— (a) a prospective adoptive parent, and (b) a person (an adult resident) who resides on the same property as another person while that other person is a prospective adoptive parent. (2) A person to whom this section applies must apply to the Children's Guardian for a working with children check clearance of the volunteer class unless— (a) the person holds a clearance of any class that is in force, or (b) a current application for a clearance has been made by the person, or (c) the person is exempted by the regulations from the requirement to hold a clearance. (3) For the purposes of the application of this Act (other than section 9) to a prospective adoptive parent or adult resident, the relevant decision-maker in relation to the prospective adoptive parent is to be treated as the employer of the prospective adoptive parent and adult resident. (4) In this section— relevant decision-maker in relation to a prospective adoptive parent means— (a) if the prospective adoptive parent has made an application to adopt a child to the Secretary—the Secretary, or (b) if the prospective adoptive parent has made an application to adopt a child to an accredited adoption service provider—the principal officer of the service provider. 11A Prospective guardians and adults residing with them (1) This section applies to— (a) a prospective guardian, and (b) a person (an adult resident) who resides on the same property as the prospective guardian during the period beginning when the application for a guardianship order relating to that prospective guardian is made under section 79A of the Children and Young Persons (Care and Protection) Act 1998 and ending when it is finally dealt with. (2) A person to whom this section applies must apply to the Children's Guardian for a working with children check clearance of the volunteer class unless— (a) the person holds a clearance of any class that is in force, or (b) a current application for a clearance has been made by the person, or (c) the person is exempted by the regulations from the requirement to hold a clearance. (3) For the purposes of the application of this Act (other than sections 9 and 9A) to a prospective guardian or adult resident, the relevant decision-maker in relation to the prospective guardian is to be treated as the employer of the prospective guardian and adult resident. (4) In this section— relevant decision-maker in relation to a prospective guardian means— (a) if the application for the guardianship order was made by the Secretary—the Secretary, or (b) in the case of such an application made by any other person or body—the principal officer of the designated agency responsible for assessing the prospective guardian to be a suitable person to be allocated all aspects of parental responsibility for a child or young person. 11B Responsible agency must verify person has clearance or current application (1) For the purposes of this section, the responsible agency is— (a) for any adult person who resides on the same property as an authorised carer who is authorised by a designated agency—the designated agency, or (b) for any adult person who resides on the same property as a carer applicant whose application was made to a designated agency—the designated agency, or (c) for any adult person who resides on a property where a family day care service is provided—the approved provider of the service, or (d) for any adult person in respect of whom a relevant decision-maker (within the meaning of section 11 or 11A) is to be treated as an employer under either of those sections—the relevant decision-maker. (2) A responsible agency must verify, in accordance with this section, that each adult person for whom the agency is the responsible agency— (a) is the holder of a working with children check clearance, or (b) has made a current application to the Children's Guardian for a clearance. (3) For the purposes of any such verification, the responsible agency must ensure that— (a) the relevant details of the person are obtained by the agency, being— (i) the person's full name and date of birth, and (ii) the working with children number of the person's clearance or the application number of the person's current application, and (b) the agency has access to the working with children register, and Note. Responsible agencies can gain access to the register by registering online with the Children's Guardian. (c) such of the relevant details of the person as may be required by the Children's Guardian are entered onto the working with children register, and (d) a record is kept of any of the following obtained from the working with children register and that record is retained by the agency for 7 years— (i) the working with children number of the person, (ii) the expiry date of any clearance of the person. (4) Verification in respect of an adult person under this section must occur as soon as practicable after the responsible agency becomes aware that it is the responsible agency for the person and then again within 5 working days after each clearance of the person ceases to have effect under section 22(1). (5) This section does not apply— (a) in respect of a person who is exempted by the regulations from the requirement to hold a clearance, or (b) in respect of a responsible agency that is exempted by the regulations from this section. (6) In relation to the residency of an adult person on the same property as an authorised carer, a requirement to verify that the person is the holder of a working with children check clearance is satisfied if the responsible agency verifies that the adult person is the holder of a continuing residence approval. (7) For the purposes of subsection (6)— (a) a reference to the working with children number of the person includes a reference to the particulars of the continuing residence approval, and (b) a reference to the expiry date of a clearance, or the date on which it ceases to have effect, includes a reference to the date on which a continuing residence approval ceases to have effect. 11C Candidates for State Parliamentary elections A person who is or intends to be a candidate at an election (within the meaning of the Electoral Act 2017) may apply to the Children's Guardian for a working with children check clearance of the non-volunteer class, unless— (a) the person holds a clearance of any class that is in force, or (b) a current application for a clearance has been made by the person. 11D Continuing residence approval (1) The Children's Guardian may, by notice in writing given to a person, grant an approval (a continuing residence approval) to the person to reside on the same property as an authorised carer, even though the person does not hold a working with children check clearance, if— (a) the person is or was, immediately before turning 18 years of age, in the out-of-home care of the authorised carer, and (b) the Children's Guardian is satisfied that any risks to the safety of children associated with the person residing at the property have been sufficiently mitigated. Note. A continuing residence approval is sufficient authority for a person who is or was in the out-of-home care of an authorised carer before turning 18 years of age to continue to reside at the residence of the authorised carer, even though the person does not hold a working with children check clearance. (2) A continuing residence approval has effect for 5 years after the date it is granted or, if a shorter period is specified by the Children's Guardian, that period. (3) A continuing residence approval may be renewed by the Children's Guardian. (4) The Children's Guardian may, by notice in writing served on a person, cancel a continuing residence approval granted to the person if— (a) the Children's Guardian is no longer satisfied that any risks to the safety of children associated with the person residing at the property have been sufficiently mitigated, or (b) a change of circumstances occurs that, in the opinion of the Children's Guardian, makes it no longer appropriate to continue the approval. (5) A continuing residence approval ceases to have effect if it is cancelled by the Children's Guardian. (6) The Children's Guardian must advise the designated agency that authorised the authorised carer of a decision to grant, refuse, renew or cancel a continuing residence approval as soon as practicable after the decision is made. (7) In this section— out-of-home care has the same meaning as it has in the Children and Young Persons (Care and Protection) Act 1998. Part 3 Working with children check clearances Division 1 Classes of clearances 12 Classes of clearances (1) There are to be the following classes of working with children check clearances— (a) volunteer—authorising workers to engage in unpaid child-related work, (b) non-volunteer—authorising workers to engage in paid and unpaid child-related work. (2) Despite section 8, the holder of a volunteer clearance may engage in paid child-related work if the person has been engaged in that work for a period of 30 consecutive days or less. Division 2 Applications for clearances 13 Applications for clearances (1) A person may apply to the Children's Guardian for a working with children check clearance. (2) An application must— (a) be in the form approved by the Children's Guardian, and (b) be accompanied by any other information required by the Children's Guardian, and (c) specify the class of clearance applied for. (3) The approved form must provide for the authorisation by the applicant of, and the consent by the applicant to, the following in connection with the application or any application under Part 4 and at any time while a clearance is in force— (a) the conduct of a criminal record check in respect of the applicant, (b) the disclosure of the applicant's criminal history, (c) other inquiries about the applicant relevant to the application or clearance, (d) without limiting paragraphs (b) and (c), disclosure of information about the applicant relevant to whether the applicant may be subject to an assessment requirement. (4) The regulations may— (a) prescribe the fee payable for an application and the manner in which it is to be paid, and (b) require proof of identity to be provided by an applicant for a clearance in the manner prescribed by the regulations or approved by the Children's Guardian. (5) The Children's Guardian must ensure that each applicant is given an application number and that the applicant is notified of that number. (6)–(8) (Repealed) 13AA Withdrawal of applications for clearances (1) An applicant may, with the consent of the Children's Guardian, withdraw an application for a working with children check clearance at any time. (2) The Children's Guardian must not consent to the withdrawal of an application for a clearance if the Children's Guardian considers there is a likely risk to the safety of children if the applicant engages in child-related work. (3) The Children's Guardian must, as soon as practicable after an application for a clearance is withdrawn by an applicant, give written notice of the withdrawal to each person the Children's Guardian reasonably believes to be a notifiable person in relation to the applicant. 13AB Termination of applications for clearances (1) The Children's Guardian may terminate an application for a working with children check clearance if— (a) the applicant fails to provide, or incorrectly provides, the applicant's— (i) full name, or (ii) former name, or (iii) known aliases, or (b) the application is a duplicate application. (2) The Children's Guardian must terminate an application for a working with children check clearance if notified of the death of the applicant. (3) The grounds for terminating an application for a clearance under this section are in addition to other grounds on which the Children's Guardian may terminate an application under this Act. (4) The Children's Guardian must, as soon as practicable after terminating an application, give written notice of the termination to— (a) for an application terminated under subsection (1)—the applicant, and (b) for an application terminated under subsection (1)(a) or (2)—each person the Children's Guardian reasonably believes to be a notifiable person in relation to the applicant. (5) In this section— duplicate application means an application made by an applicant for a class of clearance for which the applicant has made a previous application not yet determined. 13A Embargo after refusal of application or cancellation of clearance (1) A person who is refused a working with children check clearance, or whose clearance is cancelled under section 23, is not entitled to make a further application for a clearance— (a) until 5 years after the date notice of the refusal or cancellation was given to the person, or (b) unless a further early application is permitted under this section. (2) A further early application is permitted if, after the date of the refusal or cancellation— (a) relevant proceedings pending at the date of the refusal or cancellation are withdrawn or dealt with without the person being found guilty of the offence, or (b) a relevant finding of guilt is quashed or set aside, or (c) a relevant finding the subject of an assessment requirement— (i) is quashed or set aside, or (ii) otherwise expressly or impliedly ceases to have effect. (3) In this section— relevant, in relation to proceedings or a finding, means relevant to the refusal or cancellation. Division 3 Risk assessment of applicants and holders 14 Assessment requirements A person is subject to an assessment requirement under this Act if any of the matters specified in Schedule 1 apply to the person. 15 Assessment of applicants and holders (1) The Children's Guardian must conduct a risk assessment of an applicant for a working with children check clearance, or the holder of a clearance, to determine whether the applicant or holder poses a risk to the safety of children if the Children's Guardian becomes aware that the applicant or holder is subject to an assessment requirement. (2) The Children's Guardian may conduct a risk assessment of the holder of a clearance if the Children's Guardian becomes aware that the decision to grant the clearance was based on wrong or incomplete information. (3) Subsections (1) and (2) do not limit the circumstances in which the Children's Guardian may conduct a risk assessment of an applicant or holder. (4) In making an assessment, the Children's Guardian may consider the following— (a) the seriousness of any matters that caused the assessment in relation to the person, (b) the period of time since those matters occurred and the conduct of the person since they occurred, (c) the age of the person at the time the matters occurred, (d) the age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim, (e) the difference in age between the victim and the person and the relationship (if any) between the victim and the person, (f) whether the person knew, or could reasonably have known, that the victim was a child, (g) the person's present age, (h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred, (i) the likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition, (i1) any order of a court or tribunal that is in force in relation to the person, (j) any information given in, or in relation to, the application, (j1) any relevant information in relation to the person that was obtained in accordance with section 36A, (k) any other matters that the Children's Guardian considers necessary. (4A) The Children's Guardian may determine an applicant or holder does not pose a risk to the safety of children only if the Children's Guardian is satisfied— (a) a reasonable person would allow the person's child to have direct contact with the applicant or holder— (i) while not directly supervised by another person, and (ii) while the applicant or holder was engaged in child-related work, and (b) the making of the determination is in the public interest. (5) The Children's Guardian may, but is not required to, notify the holder of a clearance in writing if the Children's Guardian decides to conduct a risk assessment of the holder. 16 Request for further information (1) The Children's Guardian may, by notice in writing to an applicant for a working with children check clearance or the holder of a clearance, request the applicant or holder to provide further information about an offence or other matter related to the application or clearance. (2) The Children's Guardian may terminate an application for a clearance or cancel a clearance if the applicant or holder fails, without reasonable excuse, to provide further information within 3 months of the request being made and the Children's Guardian has not withdrawn the request. (3) The Children's Guardian must— (a) as soon as practicable after terminating an application, give written notice of that termination to the applicant and to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the applicant, or (b) as soon as practicable after cancelling a clearance, give written notice of that cancellation to the holder of the clearance and to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance. 17 Interim bars (1) The Children's Guardian may, at any time after receiving an application for a working with children check clearance or commencing an assessment of an applicant for or holder of a clearance, determine that the applicant or holder is subject to an interim bar, being a bar on the applicant or holder doing any of the following— (a) engaging in child-related work, (b) residing on the same property as an authorised carer, (c) residing on a property where a family day care service is provided. (2) The Children's Guardian may make a determination under this section if it is of the opinion that it is likely that there is a risk to the safety of children if the applicant or holder engages in child-related work or resides on a property referred to in subsection (1)(b) or (c) pending the determination of the application or assessment. (3) The Children's Guardian must as soon as practicable after determining that an applicant or holder is subject to an interim bar, give written notice of that determination to the applicant or holder and to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the applicant or holder. (4) An interim bar ceases to have effect— (a) on notification in writing by the Children's Guardian to the applicant or holder that the interim bar is revoked, or (b) in the case of an applicant for a clearance, if the applicant is granted or refused a clearance, or (c) 12 months after the interim bar takes effect, whichever occurs first. Division 4 Determination of applications for clearances 18 Determination of applications for clearances (1) The Children's Guardian must not grant a working with children check clearance to the following persons (disqualified persons)— (a) a person convicted before, on or after the commencement of this section of an offence specified in Schedule 2, if the offence was committed as an adult, (b) a person against whom proceedings for any such offence have been commenced, if the offence was committed as an adult, pending determination of the proceedings for the offence. (2) The Children's Guardian must grant a clearance to a person who is subject to a risk assessment under Division 3 unless the Children's Guardian is satisfied that the person poses a risk to the safety of children. (3) The Children's Guardian must grant a clearance to a person if it is satisfied that the person is not a disqualified person and the person is not subject to a risk assessment under Division 3. 19 Notice of proposed refusal of application (1) If the Children's Guardian proposes not to grant a working with children check clearance to a person, the Children's Guardian must notify the person in writing of the proposed decision and that the person may make a submission to the Children's Guardian within the period specified in the notice. (2) The Children's Guardian must consider any submission made by an applicant within that period before finally deciding the application. (3) This section does not apply to an application for a clearance that is made by a disqualified person. 20 Notice of final decision granting or refusing clearance (1) The Children's Guardian must notify the applicant in writing of the Children's Guardian's decision to grant or refuse to grant a working with children check clearance. (2) Notice of a decision to grant a clearance must include the working with children number. (3) Notice of a decision not to grant a clearance must set out the reasons for the refusal and the right to seek a review under Part 4. (4) The Children's Guardian must as soon as practicable after refusing an application, give written notice of that refusal to the applicant and to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the applicant. 21 (Repealed) Division 5 Duration and termination of clearances 22 Duration of clearances (1) A working with children check clearance ceases to have effect 5 years after the date it is granted, unless it is sooner cancelled or surrendered. (2) The holder of a clearance may apply for a new clearance at any time within the period beginning 3 months before the expiry of the clearance. (3) The following arrangements apply for the purpose of facilitating alignment of the periods for which a clearance granted to a person under this Act and a clearance granted to the person under the National Disability Insurance Scheme (Worker Checks) Act 2018 are in force— (a) a working with children check clearance may, at the discretion of the Children's Guardian and with the agreement of the applicant, be granted so as to be in force for a period of less than 5 years, (b) the period for which a working with children check clearance is in force may be shortened after the clearance is granted at the discretion of the Children's Guardian and on the application of the holder of the clearance, (c) the holder of a working with children check clearance may, with the approval of the Children's Guardian, apply for a new working with children check clearance earlier than 3 months before the expiry of the clearance, (d) the Children's Guardian may approve a reduction in the fee payable, or a refund of part of any fee paid, to reflect any reduction in the period for which a working with children check clearance is or is to be in force. 23 Cancellation of clearances (1) The Children's Guardian must cancel the working with children check clearance of a person if the Children's Guardian becomes aware that the person is a disqualified person or the Children's Guardian is satisfied that the person poses a risk to the safety of children. (2) The Children's Guardian must notify the holder of the clearance in writing of the Children's Guardian's decision to cancel the clearance. (3) Notice of a decision to cancel a clearance must set out the reasons for the cancellation and the right to seek a review under Part 4. (4) The Children's Guardian must as soon as practicable after cancelling a clearance, give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance. Note. The holder of a clearance may also be made subject to an interim bar (see section 17). 24 Surrender of clearances or death of holder (1) The holder of a working with children check clearance may, with the consent of the Children's Guardian, surrender the clearance at any time. (2) The Children's Guardian must not consent to the surrender of a clearance if the Children's Guardian is of the opinion that it is likely that there is a risk to the safety of children if the holder were to engage in child-related work. (3) The Children's Guardian must, as soon as practicable after consenting to the surrender of a clearance, cancel the clearance and give written notice of that cancellation to each person that the Children's Guardian reasonably believes to be a notifiable person in relation to the holder of the clearance. (4) The Children's Guardian must terminate the working with children check clearance of a holder if notified of the holder's death. Division 6 Working with children register 25 Working with children register (1) The Children's Guardian must establish a working with children register. (2) The register must contain the following— (a) particulars of applications for working with children check clearances, including the applicant's name and date of birth, the application number, the status of the application (including whether the applicant is subject to an interim bar) and any determination to refuse the application, (b) particulars of clearances, including the clearance holder's name and date of birth, the working with children number, the class and expiry date of the clearance and whether the clearance holder is subject to an interim bar or has had a clearance cancelled. (3) The register is to be maintained in the manner and form approved by the Children's Guardian. (4) The Children's Guardian must ensure that information kept on the register is accurate and up-to-date. (5) The Children's Guardian must make information on the register available to an employer, licensing authority or responsible agency carrying out a verification in respect of a person under section 9A, 9AA or 11B to the extent that the Children's Guardian considers the information to be relevant for the purposes of the verification or for informing the employer, licensing authority or responsible agency of any interim bar, refusal of an application or cancellation of a clearance. (6) The regulations may make provision for or with respect to the following— (a) any additional information that may be contained on the register, (b) the entry of information on the register by employers or other persons, (c) making information on the register publicly available or available to particular classes of persons. Part 4 Reviews and appeals 26 Persons not entitled to apply for review or enabling order (1) The following persons are not entitled to make an application under this Part— (a) a person who has been convicted of any of the following offences, if the offence was committed as an adult and the person is a person who satisfies subsection (2)— (i) murder, (ii) an offence against section 61B, 61C, 61D, 61E, 61F, 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O, 61P, 63, 65A, 66, 66F, 76, 78A, 78B, 80A, 80D, 80E or 81 of the Crimes Act 1900, if the person against whom the offence was committed was a child, (iii) the common law offence of rape, if the person against whom the offence was committed was a child, (iv) an offence against section 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB or 66EC of the Crimes Act 1900, (v) an offence against section 67, 68, 71, 72, 72A, 73, 73A, 74 or 76A of the Crimes Act 1900, (vi) an offence against section 78H, 78I, 78K, 78L, 78M, 78N, 78O or 78Q of the Crimes Act 1900, (vii) an offence against section 91D, 91E or 91F of the Crimes Act 1900, (viii) an offence against section 91G, 91H, 578B or 578C(2A) of the Crimes Act 1900, (viiia) an offence against the Crimes Act 1900, section 79 or 530, (ix) an offence against section 272.8, 272.10 (if it relates to an underlying offence against section 272.8) or 272.11 of the Criminal Code of the Commonwealth, (x) an offence against section 272.9, 272.10 (if it relates to an underlying offence against section 272.9), 272.12, 272.13, 272.14 or 272.15 of the Criminal Code of the Commonwealth, (xi) an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth, if it relates to a Class 1 offence within the meaning of the Child Protection (Offenders Registration) Act 2000, (xii) an offence against section 273.5, 273.6, 273.7, 471.16, 471.17, 471.19, 471.20, 471.22, 471.24, 471.25, 474.19, 474.20, 474.22, 474.23, 474.24A, 474.25A, 474.25B, 474.26 or 474.27 of the Criminal Code of the Commonwealth, (xiii) an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material, (xiv) an offence an element of which is an intention to commit an offence listed in subparagraphs (i)–(xiii), (xv) an offence of attempting, or of conspiracy or incitement, to commit an offence listed in subparagraphs (i)–(xiii), (b) a person who has been convicted of an offence committed as an adult under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence referred to in paragraph (a) and the person is a person who satisfies subsection (2), (c) a person whose application for a working with children check clearance has been refused, or whose working with children check clearance has been cancelled, wholly or partly on the grounds that proceedings have been commenced against the person for an offence specified in Schedule 2 and the proceedings have not been finally determined. (2) A person convicted of an offence specified in subsection (1) satisfies this subsection if— (a) the person received a sentence of full time custody for the offence, or (b) any of the following orders (including any equivalent orders made by a court of a jurisdiction other than this State (including jurisdictions outside Australia)) was imposed on the person in respect of the offence and the order is in force— (i) a home detention order, intensive correction order or community service order under the Crimes (Sentencing Procedure) Act 1999, a good behaviour order under section 9 of that Act or an order under section 12 of that Act, (ia) a community correction order or conditional release order under that Act, (ii) a conditional release order or recognizance release order under section 20 of the Crimes Act 1914 of the Commonwealth, or (c) a prohibition order under the Child Protection (Offenders Prohibition Orders) Act 2004 (or a corresponding prohibition order under section 19 of that Act) is in force against the person. (3) This section applies to convictions for offences whether occurring before, on or after the commencement of this Act. 27 Applications to Civil and Administrative Tribunal for administrative reviews of clearance decisions (1) A person who has been refused a working with children check clearance by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (2) A person whose clearance is cancelled by the Children's Guardian under section 23 may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision within 28 days after notice of the decision was given to the person. (3) A person who is subject to an interim bar imposed by the Children's Guardian may apply to the Tribunal for an administrative review under the Administrative Decisions Review Act 1997 of the decision, but only if the interim bar has been in force for more than 6 months. (4) An applicant must fully disclose to the Tribunal any matters relevant to the application. (5), (6) (Repealed) (7) Section 53 of the Administrative Decisions Review Act 1997 does not apply to a decision that may be reviewed by the Tribunal under this section. (8) The Tribunal must not, on a review of a decision under this section, make a stay order in respect of the decision unless the Tribunal is satisfied that there are appropriate arrangements in place for the supervision and enforcement of the conditions (if any) of the stay order by the person's employer. (9) A stay order is an order under section 60 of the Administrative Decisions Review Act 1997 that stays or otherwise affects the operation of a decision that is subject to review by the Tribunal under this section. (10) This section does not otherwise affect the operation of Division 2 of Part 3 of Chapter 3 of the Administrative Decisions Review Act 1997. 28 Orders relating to disqualified and ineligible persons (1) The Tribunal may, on the application of a disqualified person, make an order declaring that the person is not to be treated as a disqualified person for the purposes of this Act in respect of an offence specified in the order (an enabling order). Any such order has effect according to its tenor. (2) The Tribunal may, on the application of a person who is not eligible to apply for a clearance because the person has been previously refused a clearance, make an order declaring that the person is to be treated as a person who is eligible to apply for a clearance (an enabling order). Any such order has effect according to its tenor. (3) A disqualified person may make an application under this section only if— (a) the person has been refused a working with children check clearance, or (b) the person's clearance has been cancelled under section 23, because the person is a disqualified person. (4) The Children's Guardian is to be a party to any proceedings for an order under this section and may make submissions in opposition to or support of the making of the order. (5) An applicant must fully disclose to the Tribunal any matters relevant to the application. (6) If the Tribunal makes an enabling order, the Tribunal may order the Children's Guardian to revoke an interim bar or to grant the person a clearance. (6A) To avoid doubt, Division 5 of Part 3 applies to any clearance granted by the Children's Guardian in accordance with the Tribunal's order. (7) In any proceedings where an enabling order is sought, it is to be presumed, unless the applicant proves to the contrary, that the applicant poses a risk to the safety of children. (8) An enabling order may not be made subject to conditions. (9) (Repealed) 29 Further review of persons who obtain enabling orders (1) The Children's Guardian may apply to the Tribunal to revoke or vary an enabling order made by the Tribunal. (2) The Tribunal may— (a) revoke an enabling order, if it is satisfied, on the basis of fresh evidence provided by the Children's Guardian, that the person the subject of the order poses a risk to the safety of children, or (b) confirm an enabling order, if it is satisfied that the person is not likely to pose such a risk. (3) The Tribunal may consider fresh evidence provided by the Children's Guardian. (4) (Repealed) 30 Determination of applications and other matters (1) The Tribunal must consider the following in determining an application under th