New draft regulations for the Working with Children Checks (WWCC) Scheme in South Australia have been released recently. The Child Safety (Prohibited Persons) Regulations 2018 (the Draft Regulations) supplement the WWCC Scheme already established by the Child Safety (Prohibited Persons) Act 2016. The Draft Regulations provide more information on prohibited persons, exclusions from that list, prescribed positions for the purposes of the WWCC Scheme, further detail on what is considered child related work and further employer obligations in relation to implementing checks under the WWCC Scheme.

Background to the WWCC Scheme

The Child Protection Systems Royal Commission (the Nyland Royal Commission) was established in August 2014 to investigate the adequacy of the child protection system in South Australia. Concluding its two-year investigation in August 2016, Royal Commissioner Nyland’s Report ‘The life they deserve’ made 260 recommendations on improving child protection in the State. Among the recommendations were substantial proposed amendments to the Children’s Protection Act 1993 to provide stronger protection for children.

The Government’s response was to create a new child protection framework instead of making minor fixes to a system with endemic structural problems. A key part of this framework was the introduction of a new WWCC Scheme, with the Child Safety (Prohibited Persons) Act 2016 (the Act) assented on 10 November 2016. That Act has not yet commenced.

Child Safety (Prohibited Persons) Act 2016

As we stated in our previous article, the Act implemented a number of changes to the current process for child-related employment screening, introducing a single WWCC and stronger restrictions on persons who are prohibited persons (persons unable to get a WWCC). The new WWCC Scheme will need to be integrated into all schools’ recruitment and induction processes. The Act also introduced employer obligations for the WWCC Scheme, particularly the need to verify that a potential employee is not a prohibited person under the Act before employing the person.

Child Safety (Prohibited Persons) Regulations 2018

The Draft Regulations supplement the Scheme established by the Act by:

• listing exclusions to the "prescribed offences" in the Act for the purposes of the WWCC Scheme
• providing detail on child-related work
• providing more detail on "prescribed positions" and "excluded persons"
• detailing further employer obligations to verify and apply for clearance for employees under the WWCC Scheme.

An offender who commits a prescribed offence is unable to get a WWCC under the Act and becomes a prohibited person. A prescribed offence is defined in a list in the Act and includes sexual assault, possession of child exploitation material and other offences where the victim is a child eg. murder, manslaughter or kidnapping. The exclusions, according to the Draft Regulations, are where the victim in relation to the offence consented to the conduct constituting the offence; or where, at the time the offence was committed, the victim was either 15 or 16, and the offender was 18 or 19 respectively.

The Draft Regulations also provide more detail about the types of child-related work where a WWCC is required. For example:

• accommodation and residential services for children including all services offering care to children overnight and involving sleeping arrangements
• coaching and tuition services including services provided in education, sports, recreational activities, cultural awareness or cultural activities and arts and crafts
• education services including all preschool, primary and secondary education
• services or activities provided by religious organisations including all services provided on behalf of a religious organisation where an employee would be reasonably expected to have contact with a child
• transport services for children including any charter arrangement provided by a third party where children may be passengers.

The Draft Regulations exclude certain people from needing a WWCC, namely, anyone under 14 years of age, and any parent, guardian or volunteer at the school where the children the service is being provided to includes their own child; and the service or activity does not consist of accommodation or residential services or close personal contact with a child. The Draft Regulations also make it clear that an otherwise prohibited person (a person unable to get a WWCC) will be unable to rely on an exemption to work with children. This particular provision will need careful attention in light of school volunteer policy and procedures.

Finally, the Draft Regulations highlight some important employer obligations:

• the employer must verify that
  • a check under the new WWCC Scheme has been done every 5 years; and
  • a person is not a prohibited person by checking the records of the Registrar; and
• an employer can also now make an application for and on behalf of their employees.

This will have important ramifications for school governance requirements and staffing.

Although the Act lays the groundwork for the new WWCC Scheme, the Draft Regulations provide the finer details of implementation. Although the new WWCC Scheme hasn't yet started, the Government of South Australia has confirmed the start date will be imminent, with the Act commencing as soon as these Draft Regulations are finalised. There is an important information sheet which schools can read now to be prepared.