As part of the extensive reforms to South Australia’s child protection system, the South Australian Government has enacted the Child Safety (Prohibited Persons) Act 2016 (SA) (Prohibited Persons Act) and the Child Safety (Prohibited Persons) Regulations 2019 (SA) (Prohibited Persons Regulations). This legislation came into operation on 1 July 2019.

These two pieces of legislation have introduced a new Working with Children Check (WWCC) system. The new WWCC scheme replaces the former screening system run by the Department of Human Services (DHS) Screening Unit under the Children’s Protection Act (SA) (which is in the process of being repealed). The new WWCC scheme is intended to be more comprehensive and consistent with national standards.

The Prohibited Persons Act and Prohibited Persons Regulations determine who is eligible, who is required to have, and who is excluded from the need to have, a WWCC, as explained over the course of this article. Notably, this legislation places obligations on both the individuals who work and volunteer with children, as well as the organisations that employ these individuals in child-related work, such as schools.

Applying for a WWCC

When an application for a WWCC is made, the DHS Screening Unit assesses relevant information about a person to determine whether they are not prohibited from working with children, or whether they are a prohibited person. If they are determined to be a prohibited person, a prohibition notice is issued to the person, which will remain in force until revoked. It is an offence for a prohibited person to work with children, even if they would be otherwise excluded from the WWCC obligations.

Who is Required to Obtain a WWCC in a School?

Under the Prohibited Persons Act and Prohibited Persons Regulations, individuals who are to be appointed to, engage in, or act in a “prescribed position”, are required to undergo a WWCC. Once engaged in the position, a WWCC must be conducted for the individual every five years.

As defined in the Prohibited Persons Act and Prohibited Persons Regulations, a “prescribed position” is:

• a position in which the person is working or likely to work with children; or
• a position in which a person is employed to provide preschool, primary or secondary education to a child (regardless of whether or not they are a registered teacher).

Section 6(1) of the Prohibited Persons Act provides a list of services and activities that are considered to fall within the ambit of working with children, or child-related work. This list, which is then further clarified by the Prohibited Persons Regulations, includes educational services (preschool, primary, secondary), coaching and tuition services, residential and accommodation services, transport and health services and services or activities provided by religious organisations for children. Generally, working with children is defined as the offering of services in child-related work:

• in the course of the person’s employment;
• in the carrying on of a business in the course of which an employee works with children (whether or not the person themselves works with children); or
• in providing another relevant service or activity.

Some individuals at a school fall clearly within the range of these definitions, such as teachers. Similarly, volunteers and contractors who have direct contact with children also meet the definition of “working with children” and must have a WWCC (unless they are “excluded persons” – see below). However, there is some ambiguity as to how these provisions apply to support staff in schools, such as individuals who work solely in maintenance and administration. In these areas, contact with children may be only incidental and reasonably not expected to occur. The definition of child-related work explicitly excludes services in which contact with children is only incidental or not reasonably expected to occur. Unfortunately, the language of section 6(1)(o) is not clear as to whether this exclusion applies if the individual is working in an organisation that provides child-related services and activities. That section could be construed to mean that all school staff, regardless of their individual level of contact with children, must obtain WWCCs as they work in an organisation that provides educational services to children. In light of this uncertainty, CompliSpace recommends that all administrative staff within a school should hold a WWCC, until any clarification is made by the South Australian Government or the DHS Screening Unit.

Who is Excluded from the Need to Have a WWCC?

Section 9(1) of the Prohibited Persons Act and Regulation 8 of the Prohibited Persons Regulations set out who is excluded from the need to have a WWCC in order to work with children. These people are called “excluded persons”. For schools, the most relevant excluded persons are:

• children who are under the age of 14
• persons working with children for seven or less days in a calendar year (unless the activity involves overnight excursions or stays, or close personal contact with a child with a disability) (the seven day rule)
• parents who are volunteering in an activity in which their child is involved (unless the activity involves accommodation or residential services for a child other than their own, or close personal contact with a child other than their own) (parent volunteers).

However, under section 9(2) of the Prohibited Persons Act an individual cannot be an “excluded person” if they:

• are or ever have been a prohibited person
• are providing education or early childhood services under the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA) or the Education and Care Services National Law (South Australia).

This means that the individual, who would otherwise not need to have a WWCC, would in fact need to apply for one in order to work with children.

Again, there is some ambiguity as to whether individuals who work or volunteer in schools can ever be excluded persons such that they would not need to hold a WWCC. This is because schools provide “education services” as defined under the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA).

On a first reading of section 9(2)(b) it seems that every person who works at a school is “providing education or early childhood services...or otherwise providing preschool, primary or secondary education to children...” and therefore won’t be an excluded person. In other words, the effect of section 9(2) on section 9(1) of the Prohibited Persons Act could be that every person in the education sector must have a WWCC, regardless of their role, of how often they work/volunteer or whether they are a child or a parent volunteer. If this is correct, then children, parent volunteers, direct contact volunteers and contractors who met the seven day rule and indirect contact volunteers or contractors (such as emergency maintenance workers) would all still need a WWCC to work or volunteer at a school.

However, this interpretation would seem excessively strict, especially given:

• that certain people, such as children under 14 and parent volunteers are expressly recognised in section 9 of the Prohibited Persons Regulations as being excluded from the operation of the WWCC
• the intent in section 6(1) of the Prohibited Persons Act, which appears to be that people who have only incidental or unexpected contact with children should not be considered to be in child-related work
• that schools are the most obvious and prominent providers of children’s education, and it would be unusual that these exemptions would not apply to the vast number of individuals working or volunteering in these institutions.

Under section 3 of the Education and Early Childhood Services (Registration and Standards) Act 2011 (SA), education services are defined as “courses of instruction in primary or secondary education”. The Education and Early Childhood Services (Registration and Standards) Regulation 2011 (SA) specifically excludes the following from the definition of education services: private tutoring and lessons and/or coaching in linguistic, cultural, recreational, religious or sporting activity.

CompliSpace is of the view that these provisions, taken together with the intent of the Prohibited Persons Act and Prohibited Persons Regulations to permit casual, child and parent volunteers, enable a broader reading of section 9(2) of the Prohibited Persons Act with respect to its application in schools. Using these definitions of “education services”, section 9(2)(b) likely refers to the actual provision of the school’s courses of instruction. This would mean that only those people who are involved in the actual teaching of a school’s curriculum cannot be excluded persons.

If this is the correct interpretation of the Prohibited Persons Act, then volunteers and contractors who are not involved in the actual teaching of a school’s curriculum (for example, parent volunteers who coach their child’s school sports team, children who tutor or mentor younger children at the school, and contractors who work less than seven days a year), are able to be excluded persons. This means that they may not need to have a WWCC to work or volunteer at a school, subject to meeting the criteria for excluded persons and provided that they are not nor ever have been a prohibited person. However, this interpretation is subject to possible future clarification from the South Australian Government or the DHS Screening Unit.

What Does this Mean for Schools?

Schools need to comply with the WWCC scheme from 1 July 2019. The legislative framework imposes penalties on schools that fail to meet their obligations as an employer of persons who work with children. Before employing or engaging an individual in a prescribed position, a school must verify, in accordance with the Prohibited Persons Act and Prohibited Persons Regulations, the individual’s details and that a WWCC has been conducted in the preceding five years. The school must also check once every five years that the individual’s WWCC is valid and that they are not a prohibited person. The school must also update the DHS with any relevant new details as they arise about the individual. Failure to comply with any of these requirements is an offence that can result in significant financial penalties.

There are however transitional arrangements in place, particularly with respect to WWCCs for registered teachers, registered health practitioners (such as nurses and psychologists) and volunteers who used a National Police Certificate to volunteer with children under the former screening system

For further information on the new WWCC scheme in South Australia, please see our briefing paper which can be found here.

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.

Soo Choi

Soo Choi is a Legal Research Assistant at CompliSpace. She is currently studying a Bachelor of Arts and Bachelor of Laws at the University of Sydney