The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) made a range of recommendations including in relation to working with children checks (WWCC).

Background

In Australia, each state and territory has its own scheme for conducting pre-employment screening for people seeking to engage in child-related work, commonly known as Working with Children Checks (WWCC).

In 2015, the Royal Commission released its report into Working with Children Checks with 36 recommendations, including recommendations about how the Commonwealth, state and territory governments should reform their WWCC schemes to promote national consistency for WWCC. The recommendations were reiterated in the Final Report recommendations.

The Final Report also set out 10 Child Safe Standards including “Standard 5: People working with children are suitable and supported”. One of the criteria relating to Standard 5 was that “Relevant staff and volunteers have Working With Children Checks”. This principle has formed the basis of Principle 5 of the National Principles for Child Safe Organisations published by the Australian Human Rights Commission.

Following on from the Royal Commission’s recommendations, the Commonwealth, state and territory governments developed The National Standards for Working with Children Checks (National Standards) and are working together to implement the National Standards in legislative changes to their respective WWCC schemes. The National Standards set the minimum requirements for WWCC schemes across Australia, although they also acknowledge that states and territories can exceed these standards if their own framework provides more robust protection for children.

The National Standards include that a person is required to apply for a WWCC if the person is over 18 years (or under 18 in certain circumstances) and the person engages in, or proposes to engage in, child-related work in which contact with children is a usual part of, and more than incidental to, the child-related work. Child-related work is defined as involving physical contact, face-to-face contact, oral communication, written communication or electronic communication with one or more children and includes work done on a voluntary basis. The list of categories of child-related work in the National Standards includes “education services for children or work at an educational facility for children, including administration and maintenance services”.

The National Standards listed a number of exemptions from the need to undergo a WWCC, including:

• where a person is engaged in child-related work for seven days or fewer in a calendar year (except in respect of overnight excursions or stays)
• parents or guardians who volunteer for services and activities that are usually provided to their children (except for overnight excursions or stays, or providing services to children with disabilities involving close personal contact with a child other than their own child).

It also set out a broad exemption which allows states and territories to consider their own circumstances in their legislative framework where a WWCC is not required.

Inconsistency Across the Jurisdictions About Who Should Apply for a WWCC

The WWCC legislation in each state and territory defines who must hold a WWCC to engage in child-related work or activities. Despite the aim of consistency, there remain differences across some of the states and territories in relation to who must apply for a WWCC and who is exempt. Further, while some jurisdictions permit employers to require staff to obtain a WWCC even if they are not required to hold one by law, some jurisdictions prohibit those who are not in child-related work from applying for a WWCC . This article gives an overview of this aspect as it varies across different jurisdictions.

What Approach Have Most States and Territories Adopted?

In the Australian Capital Territory, New South Wales, the Northern Territory, South Australia, Tasmania and Victoria, while there are variances across each of these jurisdictions’ WWCC legislation, each largely commonly identifies those who are required to obtain checks as those who:

• work with children;
• are employed in child-related businesses; or
• conduct activities involving children.

In some jurisdictions, teachers are required by other legislation to hold a WWCC as part of their professional responsibilities, for example, in the ACT under the Teacher Quality Institute Act 2010 (ACT). In other jurisdictions, such as Victoria, teachers are exempted from needing a WWCC, but subject to similar checking and disclosure obligations under other legislation.

The WWCC legislation and regulations in these six jurisdictions also include exemptions as to those individuals who may work with children but are not required to obtain a WWCC. Often this applies to volunteers who are children, or those who do not work frequently enough with children to arguably warrant requiring a WWCC.

Importantly, across all six of these jurisdictions, those who are not required to hold a WWCC by law can still apply for, and obtain, a WWCC. This means that schools can ask staff who are not required by the legislation to hold a WWCC to nevertheless obtain one. For example, a school could require, as a matter of policy, that their receptionist or bursar holds a WWCC, or that a 17 year old assistant sports coach or a parent volunteer holds a WWCC.

Note, however, that if multiple organisations require numerous people to seek a WWCC when these people are not legally obliged to do so, this could lead to the relevant government body becoming overburdened with applications and taking longer and longer to complete WWCCs for those who are required to hold them by law. NSW in particular addresses this issue by expressly permitting organisations to require, as a matter of policy, that individuals (who are not otherwise required by law to hold a WWCC) sign a statutory declaration verifying that they do not have a relevant criminal history and provide an undertaking to advise the organisation if they are charged with a relevant offence.

Queensland

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. These changes had been scheduled to come into effect on 25 May of this year but were delayed due to the COVID-19 pandemic.

The Working with Children (Risk Management and Screening) Act 2000 (Qld), which establishes the Blue Card system, defines the circumstances in which a person is required to hold a Blue Card. The Act says that those who are employed in or work (including as a volunteer) in positions which provide services directed towards children, or conduct activities with children, must hold either a Blue Card or an Exemption Card. This includes people who run child-related businesses, such as external education providers or tutoring services.

An individual does not legally require a Blue Card or an Exemption Card if they fall within one of the following exemptions:

• if their employment does not meet the frequency test (which is, from 31 August 2020, seven or less days in a calendar year; although the frequency test does not apply to people who run child-related businesses)
• if they fall within one of the following categories:
   
  • teachers who are registered with the Queensland College of Teachers, working in their professional capacity as a teacher
  • Queensland police officers, working in their professional capacity as a police officer
  • registered health practitioners, such as registered nurses, working in their professional capacity as a health practitioner
  • volunteers aged under 18
  • volunteers who are parents of a student attending the school.

However, teachers and police officers who undertake child-related work outside of their normal professional duties, for example, supervising an out-of-school hours care service or running a tutoring business, need an Exemption Card. Health practitioners who undertake child-related work outside of their normal professional duties, for example, a registered nurse who also works as a music teacher, need a Blue Card.

Unlike in the other states and territories discussed above, a person who is not required by law to hold a Blue Card or an Exemption Card, cannot apply for one. This means that schools in Queensland cannot require people outside the above criteria to hold a Blue Card.

While the changes that come into effect on 31 August do not substantively affect who needs a Blue Card and who does not, schools should be aware that the changes include increased penalties for schools and individuals who do not comply. In addition, the changes prevent people who have been denied a Blue Card or Exemption Card, or whose Blue Card or Exemption Card has been cancelled, from engaging in child-related work by relying on one of the exemptions. For example, a parent cannot volunteer at the school if they have been given a Negative Notice or had their Blue Card cancelled. Finally, Exemption Cards now expire and must be renewed every three years. For more information, see our article here.

Western Australia

The Working with Children (Criminal Record Checking) Act 2004 (WA) and the Working with Children (Criminal Record Checking) Regulations 2005 (WA) require those who work in child-related employment or conduct child-related businesses to hold WWCCs. The exemptions to this include:

• parent volunteers
• volunteers under the age of 18
• tertiary education students aged under 18 (e.g. students doing their placements)
• short-term visitors, one-off national events and national tours
• individuals who do not engage in such work with children for more than five days within a calendar year.

More information on these exemptions can be found here on this factsheet provided by the WA Government.

Like in Queensland, in Western Australia, if a person is not required by law to hold a WWCC then they cannot apply for one. Therefore, a school cannot choose to broaden the categories of people required to hold a WWCC at their school beyond those required under the Act.

As a related aspect, the WA Auditor-General recently tabled a report in the Western Australian Parliament that gives some insight into how the WWCC scheme in WA is working in practice across the departments of Education, Health and Justice. The Auditor-General said that "The entities did not consistently manage card records across operational areas and information was often decentralised". She went on to say that "As a result, management did not have a complete understanding of whether everyone required to had a card”. The report highlighted that government bodies themselves are in some cases having difficulties in keeping on top of managing the scheme although it was stated that “the public had "every right" to expect public sector entities demonstrated the highest standards to help keep children safe”.

What Should Schools Do?

Schools should ensure that they are familiar and up-to-date with the requirements as to who must (and can, as the case may be) hold a WWCC in their state or territory.

Schools should also consider how to manage child protection risks that may be posed by those staff, volunteers and contractors who are not required by law to hold a WWCC or, in the case of Queensland and Western Australia, who cannot apply for one. One option, if your school is not located in Queensland or WA, is to make a policy decision to require persons other than those strictly required to hold a WWCC to also hold one. However, as discussed above, this could have broader ramifications on the ability of the relevant government body to process WWCC applications in a timely manner. Another option (and in the case of Queensland or WA, the only option) could be, as a matter of policy, to require individuals (who are not otherwise required by law to hold a WWCC) to sign a statutory declaration verifying that they do not have a relevant criminal history and provide an undertaking to advise the school if they are charged with a relevant offence.

Finally, schools then must have clear processes in place that are regularly monitored to ensure that the WWCC legal requirements, and any additional policy obligations, are actually being met.

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).