Does a School Governing Body Member Need a Working With Children Check? It Depends on the Jurisdiction and Relevant Activities.

Published
20 August 2020

On 30 July 2020 we published an article about who in a school needs (or can get) a Working with Children Check (WWCC) and found that the answer to that question varies depending on which jurisdiction you are in. We outlined which jurisdictions allow schools to ask staff to obtain a WWCC, even where a WWCC is not required by law.

The WWCC legislation in each state and territory defines who must hold a WWCC, and the criteria is based largely on an assessment of whether the person is engaging in child-related work or activities and the frequency. While the position is usually uncomplicated for staff who have direct day-to-day contact with children, the position becomes complex in some jurisdictions where this is not the case, such as in relation to the activities of a member of a school’s governing body (School Board Member) which do not necessarily involve direct day-to-day contact with children.

 

Are School Board Members Required to Hold a WWCC?

It appears that School Board Members are likely to require a WWCC in some jurisdictions because they are involved in the education sector and may meet the requisite level and definition of contact with children in the course of their work. However, this is not the case in all jurisdictions, and most jurisdictions also allow exemptions to requiring a WWCC in certain circumstances, such as only engaging in the child-related work for a limited number of days per year or holding a WWCC in another jurisdiction. It is a matter for schools in these jurisdictions to consider what level of contact (including oral or written communication), if any, a School Board Member has with children and whether the criteria for a WWCC is met in the relevant jurisdiction on a case-by-case basis.

 

Where is it Likely that a School Board Member is Required to Have a WWCC?

 

Queensland

In our recent WWCC article we explained that Queensland is about to update its WWCC scheme known as the ‘Blue Card system’ when a raft of changes come into effect on 31 August and we outlined the proposed changes in a briefing paper.

Although School Board Members are not specifically listed in the Working with Children (Risk Management and Screening) Act 2000 (Qld) as a requiring a Blue Card, the Education (Accreditation of Non-State Schools) Act 2017 (Qld) requires directors of non-state schools to have a current Blue Card or Exemption Card before they can commence work as a director at a school. There are no exemptions. Therefore, all School Board Members in Queensland require either a Blue Card or an Exemption Card.

 

The Australian Capital Territory

In the Australian Capital Territory, it is likely that some, if not all, School Board Members are required to have a WWCC. Section 12 of the Working with Vulnerable People (Background Checking) Act 2011 (ACT) requires a person to obtain a WWCC where a person engages in a “regulated activity”. A person is engaged in a regulated activity, if the person has contact with a vulnerable person (including a child) as part of the activity in any capacity, whether for a reward or otherwise.

Section 10 of the Act defines "contact" between a person and a vulnerable person as contact that:

  • would reasonably be expected as a normal part of engaging in the activity; and
  • is not incidental to engaging in the activity; and
  • involves one or more of the following:
    • physical contact, including engaging in the activity at the same place as the vulnerable person (such as anywhere on a school campus)
    • oral communication, whether face-to-face or by telephone
    • written communication, including electronic communication or dealing with a record relating to the vulnerable person
    • making a decision that affects the vulnerable person.(emphasis added).

 

Section 9 of the Act includes examples of people who may be considered to be engaged in a regulated activity and includes members of a management committee of an unincorporated body or association. Although School Board Members of schools that are corporate bodies are not specifically listed, they would still likely meet the “contact” definition.

However, there are some exemptions which may apply if the School Board Member only engages in the regulated activity for a limited period under section 12 of the Act. This includes (but is not limited to) where the person:

  • does not work or volunteer with vulnerable people for more than three days in four weeks and seven days in 12 months (other than an overnight camp); or
  • is registered under a similar law in another State or Territory, as long as they do not work or volunteer with vulnerable people for more than 28 days in 12 months.

The interstate visitor exemption is discussed further below.

 

South Australia

In South Australia, the definition of child-related work is broad, making it likely that a School Board Member is required to obtain a WWCC. Under section 6 of the Child Safety (Prohibited Persons) Act 2016 (SA), education services are specifically included as child-related work, and a person will be taken to work with children if the person “carries on a business in the course of which an employee works with children (whether or not the person themself works with children)”. All School Board Members would meet this definition, and none of the relevant exemptions appear to apply to people who provide education services.

 

The Northern Territory

In the Northern Territory, subject to exemptions, any person who is engaged to perform “child-related work” is required to hold a WWCC. Under section 185 of the Care and Protection of Children Act 2007 (NT), child-related work includes any work that involves or may potentially involve contact with children in connection with an educational facility. “Contact” is defined broadly under the Act to include any form of physical contact, oral communication (including by telephone) or written communication. It does not appear to matter whether the contact is incidental to the work.

In addition, section 185(5)(b) makes clear that child-related work includes, if a body is engaged to perform child-related work:

  • an officer of a body corporate as defined in the Corporations Act 2001 (Cth)
  • anyone (however described) who takes part in the management of any other body corporate
  • a member of the management committee (however described) of an unincorporated body or association.

 

All School Board Members therefore undertake child-related work and require an Ochre Card. However, there are exemptions that may apply, including for certain interstate visitors who are volunteers, as discussed further below.

 

Where Might a School Board Member Be Required to Have a WWCC (Depending on their Level of Contact with Children)?

 

Tasmania

In Tasmania, a person who engages in a “regulated activity” under the Registration to Work with Vulnerable People Act 2013 (Tas) is required to have a WWCC. Under the regulations, a child education service (non-government school) is included as a regulated activity. Section 5 of the Act includes examples of people who may be considered to be engaged in an activity and includes members of a management committee of an unincorporated body or association.

However, section 5 also says that a person is engaged in a “regulated activity”, if the person has contact with a vulnerable person (including a child) as part of the activity in any capacity, whether for a reward or otherwise. "Contact" is defined as contact that:

  • would reasonably be expected as a normal part of engaging in the activity; and
  • is not incidental to engaging in the activity; and
  • involves one or more of the following:
    • physical contact, including engaging in the activity at the same place as the vulnerable person (such as anywhere on a school campus)
    • oral communication, whether face-to-face or by telephone
    • written communication, including electronic communication.

 

Therefore, if a School Board Member’s duties normally involve written or oral communication, or other contact, with a child, the School Board Member is likely required to have a WWCC, unless an exemption applies. Exemptions include certain interstate visitors, as discussed further below.

As mentioned in our previous article, under section 9 of the Act, there is nothing preventing a school from requiring all School Board Members to obtain a WWCC. Therefore, as a matter of policy a school may require a School Board Member to apply for a WWCC, to demonstrate that they are a “fit and proper person” to be a School Board Member.

 

Victoria

In Victoria section 9 of the Working with Children Act 2005 (Vic) defines child-related work as work in educational institutions, involving contact with a child that usually involves direct contact and is not incidental to the work. Direct contact is defined broadly as physical contact, face-to-face contact, and any written or oral communication (including telephone, email or other electronic communication).

An example given in the legislation of a person whose child-related work does not require a WWCC is “A is employed as a nurse in the Geriatric ward of a public hospital. One day, a nurse who usually works in the Paediatric ward is unwell and A works in that nurse's place for that day. A is not engaged in child-related work as A's work does not usually involve direct contact with children.” Therefore, a School Board Member would only require a WWCC if they have contact with children as a usual part of their duties, unless an exemption applies. This needs to be assessed on a case-by-case basis. The Working with Children Check Victoria website has a survey that can assist with this process. Many other jurisdictions have a similar survey on the relevant body’s website.

Exemptions include registered teachers and interstate visitors as discussed further below.

Further, as mentioned in our previous article, there is nothing in the legislation which prevents any person from applying for a WWCC in Victoria. Therefore, as a matter of policy a school may require a School Board Member to apply for a WWCC, to demonstrate that they are a “fit and proper person” to be a School Board Member.

 

Western Australia

In Western Australia, under section 6 of the Working with Children (Criminal Record Checking) Act 2004 (WA), work is defined as “child-related work” if the usual duties of the work involve, or are likely to involve, contact with a child in connection with an educational institution for children. “Contact” is defined broadly to include any form of physical contact, oral communication (including by telephone) and any form of electronic communication. As in the jurisdictions above, where a School Board Member’s usual duties involve or are likely to involve communication, or other contact, with a child, it is likely that the School Board Member is required to have a WWCC unless an exemption under the Act applies.

Exemptions include parent volunteers, as well as certain interstate visitors, as discussed further below.

As we noted in our previous article, in Western Australia, if a person is not required by law to hold a WWCC then they cannot apply for one. Therefore, the School Board Member’s activities and level of contact with children and any exemptions should be considered carefully before requiring a WWCC.

 

Where is it Unlikely that a School Board Member is Required to Have a WWCC?

 

New South Wales

In New South Wales, under section 6 of the Child Protection (Working with Children) Act 2012 (NSW), subject to exemptions, any worker who engages in child-related work that involves direct contact (which is defined to include only physical or face-to-face contact) with a child, where that contact is a usual part of and more than incidental to the work must undergo a WWCC. Education is included in the definition of child-related work.

As it is unlikely that a School Board Member has physical or face-to-face contact with a child as part of their usual duties on a School Board, a School Board Member is not be required by law to hold a WWCC in NSW. However, this needs to be considered on a case-by-case basis by the school.

Although a School Board Member is not required by law to hold a WWCC to engage in the activities of a governing body, as mentioned in our previous article, there is nothing in the legislation which prevents any person from applying for a WWCC in NSW. Therefore, as a matter of policy a school may require a School Board Member to apply for a WWCC, to demonstrate that they are a “fit and proper person” to be a School Board Member.

 

What About Group-Managed Schools that Cross Jurisdictions?

Except for Queensland, each jurisdiction has an exemption from the need to hold a WWCC for visiting workers or volunteers from another state or territory. Given these exemptions, it may be that School Board Members for cross-jurisdictional group-managed schools can hold a WWCC in one jurisdiction and rely on it to meet other jurisdictions’ WWCC requirements. However, each jurisdiction has different criteria to meet as set out in this table.

 

Australian Capital Territory WWCC is not required if the person is registered under a similar law in another State or Territory, as long as the person does not work or volunteer with vulnerable people (in the ACT) for more than 28 days in 12 months.
New South Wales WWCC is not required if working in and visiting New South Wales from outside the State for the purposes of child-related work, and the person holds an interstate working with children check in the jurisdiction in which the person ordinarily resides, or is exempt from the requirement to have such a check in that jurisdiction, and the period of the child-related work in New South Wales does not exceed a total of 30 days in any calendar year.
Northern Territory WWCC not required if the person is visiting the Northern Territory and volunteering with children for less than 30 days in a year in total (this would not apply to a paid position).
South Australia WWCC is not required if the person normally resides outside South Australia, and holds an equivalent check from their home state or territory as long as the child-related work:

  • occurs, or is to occur, in the course of an organised event; and
  • does not exceed 10 consecutive days.

Organised events include events organised and run by an association, club or other body as part of the official activities of the body.

Note, however, that it is doubtful whether this exemption applies to educators according to the Screening Unit SA.
Tasmania WWCC not required if the person holds a current interstate registration and wants to use it in Tasmania for 28 days or less per year for a similar activity (except teachers).
Victoria WWCC not required for visiting workers who do not usually live in Victoria, and do child-related work in Victoria for a period of up to 30 days and do not do any other child-related work in Victoria in the same calendar year.
Western Australia There is an exemption which applies to work carried out by visitors to Western Australia, where the person is not ordinarily a resident in Western Australia. This exemption only applies during the two week period after the person arrives in Western Australia and cannot exceed a total of two weeks in any period of 12 months. It also cannot be used in conjunction with the one-off national events and national tours exemption. A person cannot use both exemptions in the same 12 month period.

 

What Should Schools Do?

Schools should carefully check the relevant WWCC legislation (including under any subordinate legislation/regulations) in their state and territory to consider whether their School Board Members are required to obtain a WWCC. If a School Board Member is not required by law to hold a WWCC, schools should carefully consider whether it is, or should be, the school’s policy to ask that the School Board Member obtain a WWCC, and check whether this practice is permitted in their relevant state or territory if the WWCC is not required by law.

 


About the Authors

Deborah De Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

 

Karen Zeev

Karen recently completed three years working at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in employment related child protection. Karen also spent three years at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer and was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has worked as a commercial litigation lawyer both in the private and public sector and holds a bachelor’s degree in Arts/Law (Hons).

CompliSpace

CompliSpace is an Australian company that helps over 600 non-government schools across Australia with their governance, risk, compliance and policy management. What makes us different is that we monitor over 200 sources of legal and regulatory change to ensure our clients have the updated policies and tools they need to meet new requirements. We share that knowledge with the broader Education community via School Governance.