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Criminal Law News ACT

Serious sex offences - Who are prohibited persons?

A convicted sex offender cannot be employed in any industry invloves children

The Child Protection (Prohibited Employment Act) 1998 punishes any person convicted of a serious sex offence (prohibited person) from applying, undertaking, or remaining in, child-related employment.

This means that any prohibited person, as defined by the law, cannot be employed in any industry that involves children.

A serious sexual offence is an offence that constitutes any of the following:

a.) Involves sexual activity or acts of indecency that was committed in New South Wales and that was punishable by penal servitude or imprisonment for 12 months or more; or
b.) Involves sexual activity or acts of indecency that was committed outside of New South Wales and would have been an offence punishable under the first instance; or
c.) Punishable under Sections 91D-91G of the Crimes Act 1900 (other than by a child prostitute) or a similar offence punishable outside of New South Wales; or
d.) Punishable under Section 578B or 578C (2A) of the Crimes Act 1900 or a similar offence punishable outside of New South Wales; or
e.) An attempt, conspiracy, or incitement, to commit any of the offences referred to in the preceding paragraphs; or
f.) Any other offence punishable within and without New South Wales prescribed by the regulations.

An offence involving sexual activity or an act of indecency is not a serious sexual offence if it was committed
1.) in a public place; and
2.) would not have constituted an offence in New South Wales if the place were not a public place.

In relation to this, anyone convicted of a serious sexual offence is considered to be a “prohibited person” under the Child Protection (Prohibited Employment) Act. As an exception, a person may not be considered a “prohibited person” if an order in force under Section 9 of the Act provides otherwise.

It should be remembered that the term “convicted” is not only limited to an actual conviction. It also includes a finding that the offence charged is proven although the court does not actually give out a conviction. Also, the Child Protection Act which defines a “prohibited person” applies only to convictions for serious sexual offences in connection with child-related employment.

Hungerford, J. (Aug. 28, 2001). “A” v Commission for Children and Young People & Anor [2001]

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