Working with Children Amendment Bill 2016 – an overview

As highlighted in our previous article, states and territories have been largely dragging their heels in responding to the Royal Commission’s recommendations, regarding the need to reform the nation’s fragmented Working With Children (WWCC) framework. The gears of change, however, now appear to be in motion for Victoria, with the State Government’s recent introduction of the Working with Children Amendment Bill 2016 (the Bill). The Attorney General has stated that the Bill aims to implement the Royal Commission's recommendations by updating the Working With Children Act 2005 (Vic) (the Act).

If passed, the overall effect of the Bill will ensure a more rigorous and strict assessment framework, consistent with the standards found in other states and territories.

A Glance At The Proposed Updates

The Explanatory Memorandum for the Bill highlights amendments to the following areas:

1. expanding the definition of direct contact;
2. removing the supervision element for child related work;
3. the consideration of non-convictions in WWCC risk assessments; and
4. other technical and miscellaneous sections.

Direct Contact

The definition of direct contact stands to be expanded to include all forms of oral, written and electronic communication. Currently, the definition is limited to: physical contact or face to face oral communication.

The dawn of the information era has revolutionised the ways in which we interact with each other. Unfortunately, it has also provided predators with an online medium to groom vulnerable victims and facilitate sexual and physical abuse. The amendment will bring the law in line with technological advancements and further limit child abuse opportunities for online predators.

Supervision

Currently, part of the threshold requirement for obtaining a WWCC under section 9 of the Act is the requirement that the child-related work involving regular direct contact with a child is in circumstances where that contact is "not directly supervised by another person." Under the Bill, the need for child contact to be unsupervised in order to require a WWCC will no longer be relevant.

This means that for all people seeking to engage in child related work - it is irrelevant whether they are supervised or not.

Non-Conviction For Serious Crimes

Under the current laws, Victoria does not take into account non-conviction outcomes for the purpose of a WWCC assessment. Non-conviction outcomes cover charges that are finally dealt with other than outcomes of convictions or guilty pleas.

The amendment will seek to include the consideration of an individual’s non-conviction history as part of their WWCC risk assessment. The Attorney General has explained that this amendment is based on research conducted by the Australian Institute of Criminology, which outlines that only small numbers of cases of sexual offence against children are successfully prosecuted. This is due to reasons such as cases failing on technicalities and the impact the process has on the victim.

The grim reality is that the criminal justice system is not perfect. The hope is that this amendment will identify individuals who exhibit behaviour that would suggest an unjustifiable future risk.

Individuals who receive negative notices will still be able to appeal the decision to the VCAT.

Other Changes

Although not all of the amendments will have a profound impact on a school’s operations, it is still worth noting certain other changes in the pipeline.

Interstate Offences

Interstate offences relating to murder, rape, attempted murder or rape and child pornography will now be considered as part of an individual’s risk assessment. However, the Bill is silent as to how this section will be enforced or monitored.

Crimes Committed as a Child

A couple of sections of the Bill outline that crimes of carnal knowledge committed as a child will not be considered as part of an individual’s risk assessment. This is unless the conclusion of the offence occurs when the accused is an adult.

What’s next for schools?

As this Bill still needs to be passed by Parliament, schools do not need to take any immediate action. Should the Bill be passed, however, schools may have a busy year ahead adjusting to these changes, as well as complying with the new  reportable conduct scheme (refer to our earlier article).

The overarching message outlined by the Royal Commission Report, the Attorney General and the message in our previous article remains the same. Even with a robust WWCC framework in place, schools still need to be proactive in their approach to child protection.

WWCCs alone are not enough to ensure a child safe environment. They are only effective if they are implemented as part of an organisation’s broader child protection strategy and culture of child safety.