Proposed Reforms to Working with Children Check Legislation in NSW

Proposed Reforms to Working with Children Check Legislation in NSW

The Working with Children Check (WWCC) is designed to protect children and young people from harm by ensuring all people who work with children and young people have been screened and are suitable. Anyone who poses an unacceptable risk of harm to children and young people should not be granted a WWCC.

Currently, the WWCC is legislated and regulated by each state and territory in Australia. There is no nationally coordinated check or system in place. The laws across Australia are similar, but do differ in some respects, so organisations and employees should be aware of their legislative obligations.

In response to recent events of abuse in childcare centres, the NSW Government is currently tabling legislation to reform the WWCC process, and to strengthen the protection of children and young people by ensuring WWCC decisions and reviews are conducted by one independent expert body.

What is a WWCC?

The purpose of the WWCC is to assist in protecting children and young people from physical and sexual harm, by screening people who work or care for children and young people. A WWCC should not be used as the only measure of a person’s suitability to work with children, and a robust recruitment process should be in place.

Noting that there are differences across each state and territory, in general if a person is going to engage in any child-related work, they must apply for a WWCC, unless exempt. This includes both employees and volunteers. Once an applicant has passed the screening process, they are issued a WWCC clearance, which is valid for a set period of time, unless it is suspended, cancelled or surrendered,

Depending on the state or territory where the application is made, the screening process looks at the following elements to determine if the applicant is permitted to do child-related work:

• Criminal record across all Australian states and territories across the applicant’s lifetime. This includes any serial sexual, drug or violence offence charges, regardless of the outcome of the charges
• Professional conduct including records from relevant state and territory-based teaching authorities and independent child safety regulators
• Current and historical reporting obligations or orders under relevant Sex Offender legislation

Who Is Required to Have a WWCC?

Generally, the following people are required to hold a WWCC:

1. An adult volunteer or employee caring for children and young people under 18 years of age
2. The work being undertaken usually involves direct contact with children
3. Contact with children is part of the employment duties
4. The volunteer or employee is not otherwise exempt under the relevant legislation

In some states and territories, organisations may still require their employees and volunteers to hold a WWCC even if they do not meet all of the above criteria.

Do All States and Territories in Australia Have WWCCs?

• Victoria: Under the Worker Screening Act 2020 (Vic), any person who engages in ‘child-related work’ is required to hold a valid WWCC. Child-related work is defined as any work which involves direct contact with children.
• New South Wales: Under the Child Protection (Working with Children) Act 2012 (NSW) any person in ‘child-related work’, where the person has direct contact with a child or is engaged in a child-related role, is required to hold a valid WWCC.
• Queensland: Under the Working with Children (Risk Management and Screening) Act 2000 (Qld), any person in ‘regulated employment’ or a ‘regulated business’ is required to hold a valid WWCC.
• Tasmania: Under the Registration to Work with Vulnerable People Act 2013 (Tas), all employees working with vulnerable people to hold a Working with Vulnerable People (WWVP) check. A vulnerable person is defined as a child or an adult for whom regulated activity is provided.
• South Australia: Under the Child Safety (Prohibited Person) Act 2016 (SA) any person who engages in ‘child-related work’ is required to hold a valid WWCC. This does not include work if contact with children is incidental or not reasonably expected to occur as part of their role.
• Western Australia: Under the Working with Children (Screening) Act 2004 (WA), any person who engages in ‘child-related work’ is required to hold a valid WWCC. Child-related work is defined as any work where the usual duties of the work involve or are likely to involve contact with a child.
• Northern Territory: Under the Care and Protection of Children Act 2007 (NT), any person who engages in ‘child-related employment’ is required to hold a valid Ochre Card. Child-related employment is defined as any work that involves or may potentially involve contact with children.
• Australian Capital Territory: Under the Working with Vulnerable People (Background Checking) Act 2011 (ACT) any person who engages in ‘regulated activity’ is required to hold a valid WWVP check. Regulated activities are defined as any work where a person has contact with a vulnerable person as part of their role.

What is the New Legislation Being Tabled in NSW?

The NSW Government will introduce new legislation to Parliament this week to strengthen the WWCC system in NSW. The reforms will ensure that decisions in relation to WWCC are solely made by the independent child safety regulator, the Office of the Children’s Guardian (OCG).

External appeal pathways through the NSW Civil and Administrative Tribunal (NCAT) will be removed and the OCG will be solely responsible for deciding and reviewing WWCC applications.

The current process allows even people with serious convictions, including for sexual assault, to appeal WWCC refusals to NCAT. This has resulted in the granting of ‘enabling orders’ in some cases, which allow individuals to work with children who were previously deemed ineligible or disqualified.

Under the new changes, NDIS Worker Checks will also move to the OCG. The NSW Government will also lead calls at National Cabinet for a searchable national register of WWCC holders. Integrating WWCC systems will close information gaps and strengthen protections nationally.

These reforms reinforce the priority of keeping children safe and ensure that child safety decisions are made by the specialist regulator best equipped to assess and mitigate risk, and relevant information is shared across states and territories.

Given that other inquiries and investigations in relation to child safety are currently underway in other states and territories, we expect that other states may follow NSW lead in changing the WWCC process.

How Can Safe Space Legal Help?

Safe Space Legal has extensive experience working with organisations who work with children and young people to ensure they are meeting their child safety obligations.

Safe Space Legal provides tailored child safety advice and training for organisations on legal obligations, duty of care and child safety. This includes child safe recruitment and screening processes and the importance of WWCCs.

Safe Space Legal provides the following services to ensure organisations meet their legal obligations:

• Supporting organisations to have robust recruitment strategies to keep children and young people safe;
• Providing organisations advice on their legal obligations and compliance;
• Drafting best practice child safety policies, procedures and codes of conduct;
• Conducting gap analysis audits of critical incidents;
• Providing training on legal obligations, duty of care and child safety;
• Conducting child safety investigations which are compliant with relevant state and territory schemes; and
• Provide sound legal advice on risk mitigation.

Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s safeguarding needs.