A Bill to change NSW’s Working with Children Checks (WWCC) scheme has passed Parliament. Once the new laws take effect, schools will have additional obligations in relation to ensuring that their employees and volunteers have the required clearances.

Background to the Bill

The Child Protection Legislation Amendment Bill 2015 (Bill) amends a number of statutes to implement reforms relating to the protection of children and young persons. This includes changes to theChild Protection (Working with Children) Act 2012 (Act) to ensure that all persons who carry out child-related work have working with children check clearances.

These changes are the first substantial changes, applicable to schools, to be made to the NSW child protection regime since 2013 when the online WWCC system was introduced.

The result of a WWCC is either a clearance to work with children for five years, or a bar against working with children. Cleared applicants are subject to ongoing monitoring, and relevant new records may lead to the clearance being cancelled.

According to the NSW Government’s statistics, in the 18 months since the system’s introduction:

• more than 720,000 applications for a WWCC have been made by volunteers and paid workers;
• nearly 600 applications have been barred from working with children in NSW; and
• approximately 100 more have the current status of interim bar pending further risk assessment investigations by the Office of the Children’s Guardian.

The changes also come in response to recommendations by the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) that the States and Territories adopt more consistent WWCC standards (see our earlier article).

The Bill tightens existing requirements for employers including schools.

What are the changes?

The key change affecting schools is the new obligation under section 9A to ensure that they verify on the online WWC register that each worker (including a volunteer or employee) who will carry out child-related work for the employer holds a clearance or has a current application for such a clearance.

This obligation is in addition to an employer’s existing obligation under section 9 of the Act which prohibits them from commencing to employ, or continuing to employ a worker if they know or have reasonable cause to believe that the worker does not have a WWCC clearance.

This new verification must be carried out before the worker commences child-related work and then again when a clearance of the worker ceases to have effect at the end of every five year period.

Modified period for re-application

Another major addition is the introduction of a new section 13A which applies an embargo on a fresh application for clearance following a refusal of a WWCC clearance, or if a person’s clearance has been cancelled as a result of the individual becoming a ‘disqualified person’ under the Act. A person becomes a disqualified person if they are convicted of a sexual or violent offence against a child, or have proceedings commenced against them for such an offence, irrespective of guilt.

If a clearance is refused or cancelled for these reasons a person may not apply for a new clearance for a period of five years.

Record keeping obligations

Schools must not only verify that each worker has a WWCC clearance, or a current application underway, but they must also ensure that the relevant details of the worker have been obtained. This includes their full name, date of birth and WWC number, or application number, if they haven’t received their clearance yet. All schools must also ensure that a record is kept of both the WWC number of the worker and the date on which the clearance of the worker ceases to have effect. These records must be retained by the school for seven years.

Transitional period

In addition to meeting their verification obligations for all new workers under the new provisions, schools must also verify the WWCC clearance status of all existing workers within three months of the law taking effect.

Other changes to law

The NSW Ombudsman is also given more power through the introduction of an amendment to the Ombudsman Act 1974. The Ombudsman will have the power to provide information about investigations into reportable allegations to the alleged victim of the conduct to which the allegation relates and to certain other people, for example carers or parents, who are concerned with the welfare of the victim.

There has also been a reduction of the time frame to provide further information to the Office of the Children’s Guardian, from six months to three months, where the Guardian makes a request for further information under section 16 of the Act. A request for further information only applies to applicants who are being risk assessed.

WWCC is only one aspect of improving child protection

In his Second Reading speech for the Bill, The Hon. Brad Hazzard made some pertinent remarks about the ‘shared responsibility’ that all members of society have to keep children and young people safe. Mr Hazzard stated that children and young people’s safety ‘requires a multi-faceted and comprehensive approach by the whole community’. He also identified that although a WWCC can be ‘an important tool in helping to protect children’, it can’t identify people who have not been caught previously or are yet to offend.

These dangerous limitations of the WWCC regime mean that schools must be proactive in ensuring that they take steps to minimise the risks of abuse occurring by workers who may have a WWCC by:

• educating staff and students on child abuse; and
• training staff on how to manage a child abuse incident, including identifying abuse and making reports.

What does this mean for schools?

Once the amendments introduced by the Bill take effect, all schools will be subject to new obligations under the Act.

To prepare for the changes schools should review their existing child protection policies and procedures and make changes as required.

Schools should also be aware that the details of investigations by the Ombudsman into alleged misconduct by staff or teachers at a school can be shared with alleged victims of the misconduct as well as their parents, carers or other interested parties. Schools therefore are given a further incentive to ensure their WWCC policies and checks are sufficient, so as to mitigate reputational risk associated with publicised investigations into allegations of staff misconduct.

Importantly, if a school fails to meet its requirements under the amended Act and employs a person without the required WWCC clearance, they will risk being detected by the Office of the Children’s Guardian if an audit is carried out.

Worse still the safety of students may ultimately be at risk.