4 Meaning of finding of guilt s. 4 (1) For the purposes of this Act, a reference to a finding of guilt 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 accepting a plea of guilty from the person in relation to the offence; (c) a court accepting an admission made under and for the purposes of section 100 of the Sentencing Act 1991, or under equivalent provisions of the laws of a jurisdiction other than ; (d) a finding in relation to the offence under section 17(1)(b) or 17(1)(c) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 or under section 17(1)(c) of that Act in relation to an offence available as an alternative or a finding under that Act of not guilty because of mental impairment, or a finding under equivalent provisions of the laws of a jurisdiction other than Victoria. (2) A reference to a finding of guilt in this Act does not include a finding of guilt that is subsequently quashed or set aside by a court. 5 Meaning of charged with an offence For the purposes of this Act, a person is deemed to have been charged with an offence if— S. 5(a) amended by No. 68/2009 s. 97(Sch. item 136.1). (a) an indictment has been filed for the offence; or
S. 5(b) amended by No. 68/2009 s. 97(Sch. item 136.2). (b) a charge-sheet charging the offence has been filed against the person, whether or not— (i) a summons to answer to the charge; or (ii) a warrant to arrest the person— has been issued and served. 6 When is a charge pending? s. 6 (1) Subject to any regulations made under subsection (2), for the purposes of this Act a charge against a person for an offence is pending until the charge is finally dealt with in any of the following ways— (a) the charge is withdrawn or the person dies without the charge having been determined; (b) the charge is dismissed by a court; (c) the person is discharged by a court following a committal hearing; S. 6(1)(d) amended by No. 51/2010 s. 3(1). (d) the person is acquitted or found guilty of the offence by a court; S. 6(1)(e) inserted by No. 51/2010 s. 3(2). (e) the person is discharged by the Magistrates' Court after completing a diversion program under section 59 of the Criminal Procedure Act 2009. (2) The regulations may prescribe circumstances in which a charge against a person for an offence is not to be taken to be pending for the purposes of this Act. S. 6(3) amended by No. 68/2009 s. 97(Sch. item 136.3). (3) A reference in this Act to the withdrawing of a charge includes a reference to the discontinuance of a prosecution.
S. 10(2)(b)(ii) amended by No. 16/2010 s. 209(Sch. item 10.1(a)) (as amended by No. 26/2011 s. 34(Sch. item 10.4)). (ii) if the applicant is not able to sign the application because of a disability within the meaning of the Equal Opportunity Act 2010, be accompanied by a statement from a registered medical practitioner certifying— S. 10(2) (b)(ii)(A) amended by No. 16/2010 s. 209(Sch. item 10.1(b)) (as amended by No. 26/2011 s. 34(Sch. item 10.4)). s. 10 (A) that the person suffers from such a disability; and S. 10(2) (b)(ii)(B) amended by No. 16/2010 s. 209(Sch. item 10.1(c)) (as amended by No. 26/2011 s. 34(Sch. item 10.4)). (B) that the person is not able to sign the application because of that disability; and S. 10(2)(c) amended by No. 51/2010 s. 5(1). (c) include any identifying information of a kind approved by the Secretary; and (d) be accompanied by the prescribed application fee. S. 10(2A) inserted by No. 27/2006 s. 23(2). (2A) The approved form must provide for the following particulars— (a) the full name of the applicant and any other names by which the applicant is or has been known; and (b) the date and place of birth of the applicant; and
S. 17(1A)(b)(ii) amended by No. 51/2010 s. 11(b). (ii) there is a significant link between the charge, conviction or finding of guilt and a risk to the safety of children posed by the applicant. S. 17(1AB) inserted by No. 61/2012 s. 6(1). (1AB) The Secretary must determine that it is appropriate to refuse to give an assessment notice in the circumstances referred to in subsection (1A) unless the Secretary is satisfied that— (a) a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person while the applicant was engaged in any type of child-related work; and (b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. S. 17(1B) inserted by No. 56/2007 s. 10(3), amended by No. 61/2012 s. 6(2). (1B) Subject to subsection (1AB), in considering whether it is appropriate to refuse to give an assessment notice in the circumstances referred to in subsection (1A), the Secretary must have regard to— S. 17(1B)(a) amended by No. 51/2010 s. 11(c). (a) whether because of that charge, conviction or finding of guilt, the giving of the notice would pose an unjustifiable risk to the safety of children having regard to the matters set out in section 13(2)(a) to (i); and S. 17(1B)(b) amended by No. 51/2010 s. 11(d). (b) in the case of an applicant who has been charged with, convicted or found guilty of more than one offence of a kind to which subsection (1A) applies, the period of time between the commission, or alleged commission, of each of the offences. s. 17 (2) An assessment notice must—
engaged in any type of child-related work; and (b) the applicant's engagement in any type of child-related work would not pose an unjustifiable risk to the safety of children. S. 26(3) substituted by No. 61/2012 s. 12(3). (3) If, in accordance with this section, VCAT is satisfied that giving an assessment notice would not pose an unjustifiable risk to the safety of children, VCAT may by order direct the Secretary to give the assessment notice to the applicant if it is satisfied that, in all the circumstances, it is in the public interest to do so. (4) The Secretary must comply with an order made by VCAT under subsection (3). (5) Subject to subsection (6), an applicant who has been given a negative notice— s. 26 S. 26(5)(a) amended by No. 61/2012 s. 12(4). (a) on a category 1 application on the ground that he or she is a person referred to in paragraph (a), (b) or (ba) of section 12(1); or S. 26(5)(b) amended by No. 56/2007 s. 14(2)(a). (b) on a category 2 application or a category 3 application; or S. 26(5)(c) inserted by No. 56/2007 s. 14(2)(b). (c) because of a decision of the Secretary to do so under section 17(1A); or S. 26(5)(d) inserted by No. 56/2007 s. 14(2)(b). (d) because of a decision of the Secretary under section 23(1) to revoke an assessment notice— may apply to VCAT for review of the decision to give the notice. (6) A person who is given a negative notice in the circumstances described in subsection (5)(a) may only apply for review on the ground that he or she is not such a person.
Monitoring Act 2005 or a supervision order or a detention order; or s. 33 (c) unless engaging in the work as a volunteer or undertaking practical training— (i) having applied for a working with children check and been given a negative notice, had notified his or her employer of the giving of that notice; and (ii) his or her employer was in the process of— (A) transferring him or her to work that was not child-related work; or S. 33(2) (c)(ii)(B) amended by No. 74/2009 s. 20(1). (B) terminating his or her employment in accordance with the requirements of the Fair Work Act 2009 of the Commonwealth. S. 33(2A) inserted by No. 56/2007 s. 15. (2A) A person is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, he or she had been given a negative notice by the Secretary and had applied to VCAT— (a) under section 26(1) for an assessment notice to be given to him or her; or (b) under section 26(5) for review of a decision of the Secretary to give him or her a negative notice— and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision.
(b) the worker was exempt from a working with children check in respect of the work under Part 3. S. 36(2A) inserted by No. 56/2007 s. 18. (2A) An agency is not guilty of an offence against subsection (1) if, at the time the offence is alleged to have been committed, the worker had been given a negative notice by the Secretary and had applied to VCAT— (a) under section 26(1) for an assessment notice to be given to him or her; or (b) under section 26(5) for review of a decision of the Secretary to give him or her a negative notice— and the decision of the Secretary was the subject of an order by VCAT staying the operation of the decision. (3) An agency that is guilty of an offence against subsection (1) is liable, in the case of a natural person, to level 7 imprisonment (2 years maximum) or a level 7 fine (240 penalty units maximum) or both and, in the case of a body corporate, to a fine not exceeding 1200 penalty units. 37 Using volunteer assessment notice for paid work s. 37 (1) A person is guilty of an offence if— (a) he or she has a current assessment notice that was given to him or her on an application that did not specify an intention to engage in child-related work for profit or gain; and (b) he or she engages in child-related work for profit or gain; and (c) he or she knows that his or her current assessment notice was given on an application of a kind referred to in paragraph (a); and
(4) The amendments made to this Act by section 15, 16, 17 or 18 of the Working with Children Amendment Act 2007 apply to offences committed before, on or after the commencement of that section of that Act. s. 52 S. 52 repealed by No. 79/2006 s. 63, new s. 52 inserted by No. 69/2009 s. 54(Sch. Pt 1 item 68.2). 52 Transitional provision—Statute Law Amendment (Evidence Consequential Provisions) Act 2009 Section 47(3), as in force immediately before the commencement of the Statute Law Amendment (Evidence Consequential Provisions) Act 2009, continues to apply in respect of a hearing that commenced before the day that Act commences and that— (a) continued on or after that day; or (b) was adjourned until that day or a day after that day. S. 53 repealed by No. 79/2006 s. 63. * * * * * ENDNOTES General Information Endnotes Minister's second reading speech— Legislative Assembly: 21 July 2005 Legislative Council: 16 August 2005 The long title for the Bill for this Act was "to assist in protecting children from sexual or physical harm by ensuring that people who work with, or care for, them have their suitability to do so checked by a government body, to amend the Sentencing Act 1991, the Sex Offenders Registration Act 2004, the Victorian Civil and Administrative Tribunal Act 1998 and the Victorian Institute of Teaching Act 2001 and for other purposes."