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Significant reforms to Victoria’s Working with Children Check regime leave schools in the dark

1/03/17
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In a previous article, we flagged possible changes to Victoria’s Working with Children Act 2005 (Vic) (the Act). The Working with Children Amendment Bill 2016 (Vic) (the Bill) has since passed the rigours of Parliament and the new laws will take effect on 1 August 2017.

This leaves schools with a considerably small window of time to get their heads around the significant changes. The changes are significant due to the reform of the definitions of "Direct Contact" and "Child Related Work".

The changes are also significant because although they were made in light of the Royal Commission into Institutional Responses to Child Sexual Abuse's recommendations, there is mounting concern over the lack of guidance about their practical application.

Without any practical guidance from The Commissioner for Child and Young People (Vic) (the Commissioner) and The Department of Justice and Regulation - Working With Children Checks Unit (the Department) and a looming August deadline, schools may understandably face confusion when trying to determine which "workers require a Working with Children Check (WWCC).

Changes to the definitions Direct Contact and Child Related Work

Direct Contact

The definition of "Direct Contact"  in section 3 of the Act has expanded from being only physical contact or face-to-face communication to also include contact by:

  • post or other written communication;
  • telephone or other oral communication; or
  • email or other electronic communication.

This definition has clearly been broadened to capture all forms of communication which could give rise to potential predatory activity. For example, the online grooming of a child through social media platforms such as Facebook, Twitter and so on. However this definition goes beyond what was recommended by the Royal Commission. The Royal Commission in its report (Recommendation 7) recommended that all states and territories should:

  • amend their WWCC laws to provide that the phrase ‘contact with children’ refers to physical contact, face-to-face contact, oral communication, written communication or electronic communication; and
  • through COAG, or a relevant ministerial council, agree on standard definitions for each kind of contact and amend their WWCC laws to incorporate those definitions.

The Victorian Government has expanded on the definitions recommended by the Royal Commission and has introduced these changes without waiting for COAG (the Council of Australian Governments) or other jurisdictions to come to a collective agreement on how those terms of contact should be defined.  The consequences of these decisions are now being felt by organisations soon to be effected by the reforms.

Child Related Work

The supervision element has been removed from the definition of "Child Related Work" in section 9 of the Act. This means that workers, supervised or not, will need a WWCC if they engage in activities which usually involve direct contact with children.

The Attorney General and the Working with Children Check website outline that such changes have been made to remove any confusion, regarding situations where it was unclear if contact with a child was supervised or not.

Arguably, however, the expanded "Direct Contact" definition has injected a new type of confusion to this regime.

Key Issues with these reforms

The Hansard record of the Victorian Parliament's final debate of the Bill shows that although the amendments enjoyed cross party support when they were debated in November 2016, there were a number of concerns raised by various Members regarding their practical application.

Ms Springle argued to the effect that the definition of "Direct Contact" in its new form could cause widespread confusion, because there is no definition for each form of communication. Ms Springle drew upon the concerns raised by the Scrutiny of Acts and Regulations Committee (SARC), which warned that the lack of definitions could lead to unintended expansive interpretations.  She noted that the current concepts "could potentially include mass public communications, such as newsletters, social media and YouTube videos, whose recipients include people under 18, but that is not clear."

Similar concerns have been raised over the new definition of "Child Related Work". Liberty Victoria, a prominent advocacy group for civil rights,  submitted that the amendment could mean that any conversation or communication whatsoever with child in a work environment would constitute child related work and would require a (WWCC).

Interestingly, various Members (many who are former teachers) discussed how the changes would work in the school environment. The following scenarios were raised:

  • Would a school photographer need a WWCC?
  • What about a parent in the canteen of a soccer club?
  • What about people who run a website for general application but which would be seen by children?
  • What about providers of online educational or counselling content for children?

Only Ms Tiernay could only offer some guidance on the issue of online content:  "The advice I have received is that if the educational material is targeted at children, the producers of that material will require one (a WWCC)."

No advice was given for the other situations.

Ms Springle also raised concerns about the impact the changes would have on volunteers.

Ultimately, a situation could arise where schools, erring on the side caution, may interpret these changes as requiring a WWCC for any person who sets foot on a school's premises to perform "Child Related Work", as that term is now defined. Even if those activities are not considered child related work.

In a speech to Parliament on 9 November 2016, Mr Richard Riordan MP offered a hypothetical set of facts to test the application of the amended laws.

The facts were:

  • Year 12 students contributing to a School's Facebook page.
  • They send a mass electronic communication (i.e. a public post to promote an upcoming school event) to an audience, which may include children under the age of 18.

Would these year 12 students need a WWCC?

Interestingly, no-one in Parliament addressed the Member's concerns.

The Government’s response so far…

There is a sense of urgency surrounding this amendment, which might explain why to date, there has been a lack of comprehensive guidance on its practical application. As stated by Mr Eideh, "the Andrews Labor government is not prepared to wait". Mr Eidah's statement was made in the context of the Federal Government not acting on the issue of national child protection reform.  However, this Victorian urgency ignores the Royal Commission's recommendation to wait for a national position on key elements of WWCC changes, in particular, how to best define ''contact''.

In addition, Ms Tierney, Minister for Training and Skills, has tried to keep the waves of concern at bay by reassuring Parliament that the amendments will not lead to mass confusion. Ms Tierney highlighted that the other elements of the definition of child-related work in the Act will work to ensure a WWCC in situations where contact with children is merely incidental.

The Commissioner told School Governance that it does not provide guidance for the practical application of the WWCC. Instead they will direct those with queries to the the Department. Unfortunately, a Department representative explained that the Department does not provide advice on the application of the new WWCC requirements. Instead, such advice should be sought from a legal professional. In addition, the representative also said that the Department can only explain what the legislation says and that it was for the Police and Courts to administer the Act. The representative did flag, however, that some sort of publication would soon be released through the WWCC E-news service.

It is somewhat concerning to think that there is confusion amongst the Members of Parliament who passed the reforms about how they will work in practice and an attitude amongst the authorities tasked with administering the changes that it is only when someone breaches the new WWCC requirements that their practical application will be tested by the Police and the Courts.

Final thoughts

Everyone agrees on the importance of having a robust WWCC regime as part of broader suite of effective child protection laws. As highlighted by Liberty Victoria, with advancements in technology it is appropriate that Parliament acts to ensure that the WWCC regime applies to online activities. And the Victorian Government should be commended for its dedication to implementing significant child protection reforms in that State.

But the Government’s efforts, however admirable, have left a lot to be desired with regards to its practical execution. To echo the views of Mr Pesutto and Ms Kealy, the Department and the Government need to educate and support organisations, such as schools, to ensure that there is no confusion about questions relating to when a WWCC is needed. And it is particularly concerning that at this point in time, neither the Commissioner nor the Department could offer any valuable insight into the new laws.

Again the Government should be applauded for its effort for implementing the recommendations made in the Royal Commission’s report, but what good is robust policy without proper execution?

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