The Child Protection (Working with Children) Amendment (Statutory Review) Bill 2018 (the Bill) was introduced into the Legislative Council on 14 March 2018. It will make a number of changes to the Working with Children Check (WWCC) system in NSW, and could pave the way for further child protection amendments.

According to the Bill’s Second Reading Speech, the Bill is designed to implement the first of the recommendations from the Statutory Review of the Child Protection (Working with Children) Act 2012 (the Act) (Statutory Review) which was conducted in 2017 by the Office of the Children’s Guardian (OCG).

The Statutory Review found strong and continuing support for the Act’s policy objectives, but that fine-tuning is necessary to ensure those objectives can be secured. The main recommendations of the Statutory Review Report relate to the scope of the WWCC scheme (whether it targets the right people) and strategies to improve compliance.

Refining the scope of the WWCC scheme

The changes introduced by the Bill can be summarised as follows:

Child-related Work and WWCC Exemptions

A worker must not engage in child-related work unless they hold a WWCC clearance of a class applicable to the work, they have applied for the relevant clearance, or an exemption applies. In most cases, the work must involve direct contact by the worker with a child or children. Direct contact currently means physical contact or face-to-face contact.

The Bill will add an additional requirement that the relevant direct contact be a usual part of and more than incidental to the work. Regulations may also be made to provide for circumstances in which direct contact is to be treated as falling within this definition.

Under the Regulation, there is currently an exemption from the requirement to have a WWCC clearance for parents and close relatives of a child volunteering at or for activities of the school, service or institution of the child, or volunteering in connection with a team, program or other activity the child participates in or is a member of.

However, this exemption will be limited by the Bill, removing the exemption for parents and close relatives who voluntarily attend overnight camps for children. This means that parent volunteers on school camps may be required to obtain a WWCC clearance in order to attend.

So overall, while NSW is relaxing the definition of 'direct contact' for the purposes of obtaining a WWCC, exemptions to the WWCC are being restricted.

Mandatory Verification Offence for Employers

It is currently an offence for an employer to employ someone in child-related work unless that person has a WWCC clearance that authorises the work, or a current application for such clearance.

However, the Bill adds an additional offence for an employer who fails to obtain and verify a worker’s relevant details (including their WWCC clearance number) and to make a record of those details. Employers will be required to:

• verify the relevant details by confirming that those details accord with the details recorded in the working with children register
• update the record to ensure that the worker’s clearance has been renewed, no later than 5 working days after the expiry date for each clearance
• retain relevant records during the period in which the worker carries out their child-related work and for at least7 years after the worker ceases child-related work for the employer.

This requirement will also extend to placement agencies and licensing authorities in certain circumstances.

Mandatory Notification Offence for Individuals

The current offence which applies to individuals under the current Act is the offence of engaging in child-related work without a relevant WWCC clearance, application for the relevant clearance, or an exemption.

However, the Bill will also create a duty for individuals to keep information up-to-date. A person who holds a WWCC clearance or has made a relevant application will be required to notify the OCG of any change to their personal details within 3 months of the change occurring.

A person will be guilty of an offence if they fail to comply with this requirement without reasonable excuse.

Power to Require Production of Information

Currently, the OCG can require a government agency or person to provide information relevant to the assessment of whether a person poses a risk to the safety of children.

The Bill proposes that the OCG's powers be expanded to require persons and government agencies to also provide information relevant to the preparation of submissions to the Civil and Administrative Tribunal.  A definition will also be inserted for the previously undefined phrase “risk to the safety of children”, to mean a real and appreciable risk to the safety of children.

Other Proposed Amendments

The Bill will make a number of other changes to the Act and related legislation, including:

• clarifying that any consideration of a person’s criminal record requires consideration of the whole of the person’s criminal history, which includes all convictions and criminal charges
• giving discretion to the OCG to permit a child who turns 18 to continue to reside with an authorised carer despite not holding a WWCC clearance
• permitting penalty notices to be issued for offences under the Act.

Beyond the Bill: Improving Compliance and Child Safety

Future amendments to the Act are likely to focus on unanswered recommendations in the OCG’s Statutory Review Report. A key recommendation which is yet to be addressed is Recommendation 29: Organisations providing services to children should incorporate the NSW Child Safe Principles developed by the OCG in their policies and principles. According to the OCG, implementing child-safe practices and strategies is “a necessary adjunct to the WWCC scheme in ensuring a child-safe environment”.

The NSW Principles for Child-Safe Organisations (the Principles) were released in September 2017 as a set of optional principles for organisations that provide services to children. Refer to our previous School Governance article. The OCG proposes to implement the Principles through a “capacity-building program”, with the following features:

• training and resources provided by the OCG to assist organisations to put the Principles into action
• identifying organisations where there may be particular risks and work with these services to help them improve child safety
• introducing a voluntary certification scheme to ensure that the materials and resources prepared by private training providers are compliant
• issuing a compliance logo to organisations who meet all obligations under the WWCC scheme.

Should Schools be Developing a Child Protection Program?

In isolation, the Bill does not present a significant compliance burden for schools by requiring them to reinforce their notification procedures and records management practices. Further, if the Principles remain voluntary, any changes to the Act with respect to child safety could be incorporated into existing child protection policies with little difficulty.

However, there are three reasons why schools should be considering whether now is the time to be developing and adopting a comprehensive and integrated child protection program which is based upon the Principles:

1.       The Bill is a direct response to the Royal Commission’s recommendations, and will not be the last

The Second Reading Speech to the Bill contains various references to the significance of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission), and the majority of the amendments specifically align with its final recommendations.

More amendments should be expected later in the year which deal with the remainder of the recommendations of the OCG, and it is likely that the Royal Commission’s recommendations will again act as a strong influence.

The conclusion to the Second Reading Speech noted that while the WWCC has a key role in promoting children’s safety and welfare, in order to be effective, organisations must adopt “careful recruitment processes, appropriate training and supervision, robust processes for investigating complaints, a culture of valuing children and young people's participation, and risk management systems that are centred around children's rights”. Taken together, such a ‘multi-faceted approach’ to child safety by schools and other organisations indicates support for a child protection program.

2.       Other child protection obligations have changed or are proposed to be changed

Only a few weeks ago, the NSW Parliament passed the Justice Legislation Amendment Bill 2018, with the relevant amendments commencing yesterday on 21 March. This closes a legal loophole that potentially enabled teachers to engage in a sexual relationship with a student, if they were not teaching the student at the time of the relationship. Refer to our previous School Governance article for more information on the implications of this change.

The Legislative Assembly is also due to reopen debate on the Civil Liability Amendment (Institutional Child Abuse) Bill 2017, which was introduced in November last year (refer to our previous School Governance article). If passed, it would introduce a non-delegable duty of care on relevant organisations, including schools, to prevent the abuse of children.

Although this is a private member’s bill, meaning that it does not have executive or full government support, the Legislative Review Committee made no comment on the bill in its February 2018 Legislation Review Digest, suggesting it had no concerns over the bill’s contents.

3.       Schools could be required to comply with the Principles as a registration requirement

Feedback provided to the OCG on whether the principles should be made mandatory indicated that mandatory requirements may duplicate existing regulations and could restrict the ability of smaller organisations to provide their services. There was also concern that a ‘one size fits all’ approach to regulation may be incompatible with the diversity of organisations delivering services to children.

One solution to this problem would be to enable regulators to enforce compliance with the Principles in a manner consistent with the culture of specific kinds of organisations.

It would not be farfetched to speculate that the NSW Education Standards Authority (NESA) could update the Registration Manuals to provide that schools must comply with the Principles in order to meet the safe and supportive environment requirements. NESA could also set its own evidence of compliance which could be monitored on an ongoing basis through its current inspection program.

Taken together, these are clear reasons why schools should be taking a proactive approach to child safety, by implementing a child protection compliance program that covers a broad scope of regulatory obligations and which is flexible enough to be tailored to reflect any future legal changes.