It has now been twelve months since the Royal Commission into Institutional Responses to Child Sexual Abuse handed down 36 recommendations (Recommendations) concerning its review of Australian Working with Children Check (WWCC) laws, in an attempt to move towards a harmonised child protection framework in this area. The Recommendations were included in a Royal Commission report: Working with Children Checks Report (Report).

But with so few State and Territory Governments responding to the Recommendations, the future of a national approach to WWCC laws seems uncertain.  Their reaction to the Recommendations also raises questions about how effective their response will be to the Royal Commission's final report recommendations, due in 2017.

To 'celebrate' the anniversary of the Report's release, this article will discuss the current state of the WWCC regime in Australia and examine which States or Territories have responded to the Report, and those that haven’t. It will then revisit our question about the potential for a harmonised national model, including its costs and benefits and consider how best to develop child protection policies in schools despite the legal uncertainty.

What is the history of the Report?

The Royal Commission was established on 11^th January 2013, to examine deficiencies in domestic institutions and systems with respect to the protection of children. In its very first issue paper in June 2013, the Commission called for public submissions on the issue of WWCCs across Australia, including the potential for a national scheme. Since then, WWCCs have remained a priority for the Royal Commission, which identified WWCCs as a key tool for achieving a ‘child safe’ institution by facilitating ‘adequate staff recruitment, selection and screening practices’.

The Royal Commission released its Report on 17^th August 2015 and the key focus of the Report was the Royal Commission's aim to achieve uniformity among the States and Territories.

What did the Royal Commission Recommend?

Within its 160 page Report, the Royal Commission summarised the state of WWCC laws across Australia and in doing so, revealed the clear inconsistencies between individual background checking systems across jurisdictions. The Recommendations it proposed were intended to overcome the impediments these inconsistencies posed to the development of a uniform approach to child protection. A breakdown of the Recommendations was given in a previous article here.

As part of Recommendation 1(a) of the Report, States and Territory governments were instructed to “amend their WWCC laws to implement the standards identified” within 12 months. The only exception was a Recommendation to amend laws to recognise WWCC clearances in other States and Territories, which was given an 18 month time-frame for completion.

The expectation was clearly that the majority of the Recommendations would be implemented within the strict deadline imposed by the Royal Commission in order to enable a national framework to be developed.

The Underwhelming Response

One year on, the overwhelming approach by State and Territory Governments has been to ignore the Recommendations. The majority of the States and Territories – with one notable exception – have either failed to make any change to their current WWCC laws, or have failed to address the Recommendations in any capacity in subsequent legislative amendments.

Four jurisdictions have not implemented any changes to WWCC legislation in the 12 months following the release of the Report. These are Victoria, Queensland, Western Australia and the Northern Territory.

Western Australia has made particularly limited changes to its WWCC laws; its legislation has not changed since 2013, with only its Regulations receiving recent amendment through the Working with Children (Criminal Record Checking) Amendment Regulations 2015.

While legislative change has occurred in South Australia and the ACT, none of these amendments have reflected the detail of the Recommendations. This is despite South Australia being specifically targeted as requiring a replacement of “its criminal history assessment with a WWCC scheme that incorporates the standards” within the 12 month period.

This is not the only Report that has required South Australia to overhaul its screening system for child related work. Earlier this month, the Child Protection Systems Royal Commission Report was handed down, with Recommendation 238 advising that South Australia enact a stand-alone legislative instrument to regulate the screening of individuals engaged in child related work. The recent South Australian Royal Commission Recommendations echo the advice of the national Royal Commission Report and in response to this, South Australian Premier Jay Weatherill has committed an initial $200 million to begin the implementation of the reforms and will consider the need for further funding if necessary. We have previously written an article about the recent South Australian Royal Commission Report here.

In an earlier article, we also detailed the extensive and stringent changes that were introduced by the NSW Government, which appeared to come in response to the Recommendations. In her Second Reading Speech, The Hon Sarah Mitchell identified that the key purpose for the amendment was responding to Recommendation 29 to limit review rights for persons with serious criminal convictions.

However, while the NSW amendment tightened existing obligations for employers and made general attempts to improve record keeping and the transfer of information, it didn't deal with the Recommendations beyond review rights.  In particular, there was no change to the definitions and content of ‘child-related work’ or ‘contact with children’, which are central to children receiving “equal legal protection against the risk of sexual abuse in institutional contexts” according to the Report.

The Tasmanian Exception

Readers will note that Tasmania is the only State or Territory absent from the preceding discussion.

Tasmania’s response to the Report is notable in that it makes legislative changes that appear to directly target many of the Recommendations. In his Second Reading Speech, the Hon. Jeremy Rockliff MP specifically referenced the Recommendations, identifying that some were already covered by Tasmanian policy and some were to be addressed by the amendments.

A key example of a responsive amendment was the introduction into section 28 of the Registration to Work with Vulnerable People Act 2013  of a list of factors that a Registrar may take into account in conducting a risk assessment of a person, including their criminal history and past reportable behaviour. These factors directly answer Recommendation 23’s suggested amendments to specify “the criteria for assessing risks”. This Tasmanian reaction is in direct contrast to many other jurisdictions which often do not make reference to risk assessments.

However, despite the attempts of the Tasmanian Government to respond to the Recommendations, many remain unresolved. For instance, Recommendation 9 was that WWCC laws be amended to identify that it is “irrelevant” whether a person has supervised or unsupervised contact with children for the purposes of obtaining a WWCC check for child-related work. This seems to directly conflict with the Tasmanian legislation, which states that an unregistered person can still engage in such work “in certain supervised employment circumstances”.

Mr Rockliff identified that many of the Recommendations would “require further detail or national agreement before they can be implemented”, which may explain the failure of the States and Territories – including Tasmania – to more significantly align themselves with a national framework.

Moving Toward Uniformity: The Value of a National System

State Based System – Fragmented, Overlapping and Unclear

According to the Australian Institute of Family Studies, there are currently more that 50 pieces of State and Territory legislation dealing with child protection in Australia.  In the world of child protection, governments have traditionally favoured maintaining their own systems over jointly achieving streamlined, national approaches. The result is we currently have a child protection screening system that is fragmented, overlapping and ultimately unclear. Consequently, schools and other child-related organisations are left to navigate their way through the challenging maze of constantly changing compliance obligations (see our paper here).

While the State/Territory based system makes child protection legislation specific to the needs of each region, the inconsistent standards also mean that co-ordination between governmental agencies is limited - leading to “duplications, omissions and the shifting of responsibilities between government agencies”, according to the Australian Law Reform Commission’s ‘Seen and Heard: Priority For Children In The Legal Process Report’.

What does this mean for teachers and students?

Under our current system, teachers must apply for a WWCC in each State and Territory in which they intend to work. This is both costly, and also time-consuming, with teachers required to understand and comply with the various laws applicable to them at any given time.

Moreover, the danger of having many systems is that teachers, or workers and volunteers generally, who have unfavourable records in one State/Territory may travel to another jurisdiction in order to obtain clearance. This is often because screening agencies are unable to access the WWCC decisions or see the status of WWCC cardholders from other States/Territories, creating loopholes in the system.

This then has detrimental effects on children. According to the Report, the inconsistent protection children receive against sexual abuse in institutional contexts is, in part, the result of different requirements between State and Territory WWCC schemes.

Why have past initiatives failed?

Governments have been concerned about the lack of a single approach to WWCCs since 2005. Over the years, three major schemes have been implemented in an attempt to achieve greater consistency. Each of the schemes has been hindered by their own inefficiencies. These include:

• Criminal history information exchange: In 2009 the National Exchange of Criminal History Information for People Working with Children (ECHIPWC) was established to allow screening agencies to access other State and Territories’ criminal history information. Limitations: Access to this additional information has been limited by the different recording systems and police databases of every State and Territory.
• Exemptions for visitors: In 2012, State and Territory governments agreed to provide an exemption to interstate visitors. This allowed people to cross state borders for child-related work for up to 30 days in any 12-month period without needing to obtain a new WWCC. Limitations: This exemption has not been implemented fully or consistently. There is no exemption for interstate visitors in South Australia and Queensland, in the Northern Territory and Western Australia it applies for up to 14 days (and only applies to volunteers in NT), and for up to 28 days in Tasmania and the Australian Capital Territory.
• Creation of a national forum: The National Operator’s Forum, made up of representatives from each screening agency convened in order to work toward a national system. Limitations: There has been much difficulty reaching consensus between forum members as governments express reluctance to move away from existing arrangements.

The Report deems these federal initiatives are “slow and inadequate”.

Where do we go from here?

The reaction of the State and Territory Governments to the Report has been lacklustre. The Report provided Governments with a guide to inform best practice, to move toward greater consistency and therefore compliance. Nonetheless, there is no obvious effort on the part of the States or Territories to address the gaps within the system – meaning that the problems of the current approach will remain indefinitely.  In the meantime, schools should develop WWCC policies and procedures that comply with the law of their jurisdiction.

We await the release of the 2017 Royal Commission Final Report to see the State/Territory response to the systemic issues plaguing the child protection system. Needless to say, greater uniformity, understanding and simplification are core focus areas.

Let's check back in a year.