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Working with Children Checks: Royal Commission Review

24/02/22
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NSW

December 2022 will mark five years since the close of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and the release of its final report. The end of 2022 is also the timeframe by which the Commonwealth, each state and territory and certain institutions must provide their final progress report on their implementation of the Royal Commission’s recommendations.

To observe the significant impact that the Royal Commission has had on schools and the forthcoming five-year anniversary of its closure, we are writing a series of articles over the course of 2022, exploring the Royal Commission’s recommendations and their implementation throughout the country.

This is the first article in the series and it will explore the impact of the Royal Commission’s recommendations in relation to Working with Children Checks.

 

National Standards for Working with Children Checks

Across the country each state and territory has their own scheme for conducting background checks for people seeking to engage in child-related work. These schemes are commonly known as the Working with Children Check (WWCC). WWCCs are one tool in a broader suite of practices that help to protect children from exploitation and abuse.

Although WWCCs are state and territory-based, the state, territory and Commonwealth governments together developed National Standards for Working with Children Checks (National WWCC Standards), following recommendations by the Royal Commission. The purpose of the National WWCC Standards is to provide a consistent approach to WWCCs in all jurisdictions. The National WWCC Standards also help jurisdictions to meet the National Principles for Child Safe Organisations, specifically Principle 5 which is “People working with children and young people are suitable and supported to reflect child safety and wellbeing values in practice”.

The National WWCC Standards consist of 36 minimum criteria for the screening of persons who propose to engage in child-related work.

 

WWCC Report Recommendations

The Royal Commission published a report about WWCCs (WWCC Report) in 2015, well before the Royal Commission concluded. The WWCC Report targeted one of the Royal Commissions aims: to examine what institutions and governments should do to protect children more effectively against sexual abuse in an organisational context. A key element to the establishment a child-safe organisation is having adequate recruitment, selection, and screening practices. The Royal Commission’s recommendations in the WWCC Report aimed to strengthen the protection that children receive through WWCCs.

Several Royal Commission recommendations, both in the WWCC Report and in the Royal Commission’s final report, addressed a need for a national approach to child safety, with an emphasis on state and territory collaboration and a comprehensive national framework. The recommendations relating to WWCCs aligned with this push for a national approach and resulted in:

  • the development of the National WWCC Standards based on standards set out by the Royal Commission in its WWCC Report
  • a national model for WWCCs including a centralised, national database and consistent terminology for recording WWCC decisions in the national database.

However, each state and territory has adopted and implemented the National WWCC Standards differently, with some states picking and choosing which Standards that they wished to include.

Further, while the national database has been established, cooperation with it is still a work in progress. The Commonwealth Department of Human Services and the Australian Criminal Intelligence Commission (ACIC) delivered a project in July 2019 that implemented a National Reference System for WWCC decisions. The aim of the National Reference System is to receive, maintain and make available key decisions provided by jurisdictions as a result of WWCCs to assist other jurisdictions in the continuous monitoring of WWCC applicants and cardholders. All jurisdictions are now required to undertake the development work required to integrate their respective WWCC systems with the National Reference System, including both internal operation processes and legislative change to enable the sharing of information inter-jurisdictionally.

 

State and Territory Approach to WWCCs: Addressing the Recommendations

As we have mentioned, each state and territory has a different approach to WWCCs and has developed distinct responses to the Royal Commission’s recommendations, including those relating to WWCCs. Below is an overview of the WWCC schemes in each state and an update on their approach to the Royal Commission’s recommendations.

Queensland

Current Requirements

Workers and volunteers in regulated child-related employment or who operate a regulated child-related business in Queensland must have a Blue Card (or exemption card). A Blue Card is the Queensland equivalent of a WWCC. The Working with Children (Risk Management and Screening) Act 2000 (Qld) (WWC Act) outlines the 16 categories of employment that require a person to have a Blue Card.

In Queensland people who are not legally required to hold a Blue Card cannot apply for one. The following people are not required to have a Blue Card:

  • registered teachers with the Queensland College of Teachers (QCT) (registered teachers may need to apply for an Exemption Card if they provide other child-related services outside of their “teaching responsibilities”)
  • registered health practitioners including registered nurses
  • child volunteers (aged under 18).

 

Addressing the Royal Commission’s Recommendations

The Queensland Government has addressed the Royal Commission’s recommendations relating to WWCCs in its annual progress reports following the Royal Commission.

The WWC Act has been amended to introduce a no card, no start rule (going further than the National WWCC Standards minimum requirements, which permit applicants to begin child-related work before the outcome of their WWCC application provided that certain requirements are met). The no card, no start rule provides that an employee cannot start work until they have an approved Blue Card. Although going beyond the National WWCC Standards, this amendment seeks to promote the values enshrined in the Royal Commission’s recommendations and to implement the National WWCC Standards’ requirement that, when assessing risk, the best interest of the child is the paramount consideration, having regard to their safety and protection (Standard 23).

Furthermore, Queensland has implemented National WWCC Standard 24 by implementing an online Blue Card system in which an applicant can apply and pay for their Blue Card Online. An online portal has also been developed to enable organisations to manage their Blue Card obligations more effectively.

Like all other states, the Queensland Government continues to participate in a national working group, chaired by the Commonwealth Department of Home Affairs, to discuss and progress recommendations from the WWCC Report.

No information is available about Queensland’s progress on participating in the National Reference System.

 

NSW

Current Requirements

In New South Wales, the WWCC scheme aims to protect children and young people from harm by providing a high standard of compulsory background checks by the Office of the Children’s Guardian that includes a national police check and a review of reportable workplace misconduct. WWCC requirements are regulated by the Child Protection (Working with Children) Act 2012 (NSW) and the accompanying Child Protection (Working with Children) Regulations 2013 (NSW). People wishing to participate in paid, unpaid or volunteer child-related work in NSW are required to have a WWCC.

 

Addressing the Royal Commission’s Recommendations

In addition to endorsing the National WWCC Standards, NSW’s WWCC legislation includes that it is an offence to work with children without a valid WWCC. Breaches of this offence result in a criminal conviction, with a fine up to $11,000 or a two year gaol sentence.

No information is available about New South Wales’ progress on participating in the National Reference System.

More information about the NSW approach to addressing the Royal Commission’s recommendations can be found in their annual progress reports here.

 

ACT

Current Requirements

Workers and volunteers (including registered teachers) in the Australian Capital Territory who work with vulnerable people are required to have a complete background check and be registered with Access Canberra in accordance with the Working with Vulnerable People (Background Checking) Act 2011 (ACT) (WWVP Act) and the Working with Vulnerable People (Background Checking) Regulation 2012 (ACT). These background checks are referred to as Working with Vulnerable People (WWVP) checks. When an application is successful, the person has what is referred to as a WWVP Registration.

In the ACT, certain information must be provided to the Commissioner of Fair Trading (via Access Canberra) for the WWVP check, and it is a criminal offence for an applicant for WWVP Registration to not inform the Commissioner of Fair Trading in writing about:

  • being convicted or charged of an offence within 10 days of the conviction or charge
  • if applicable, a change in information about an allegation or investigation against the person, within 10 working days of the information changing.

It is also a criminal offence:

  • to fail to provide information requested by the Commissioner for Fair Trading that is relevant to whether a registered person continues to pose no risk or an acceptable risk of harm to a vulnerable person
  • to engage in a regulated activity (with vulnerable people) without WWVP Registration, unless they are exempt
  • for an organisation to engage a person without a WWVP registration in a regulated activity.

 

Addressing the Royal Commission’s Recommendations

In 2019 the ACT Government endorsed the National WWCC Standards. It also amended the WWVP Act to enable inter-jurisdictional information sharing. Further amendments to the WWVP Act have also been made to include NDIS workers in the WWVP Registration process.

In 2020 the ACT Government also amended the Education Act 2004 (ACT) to strengthen the regulation of boarding schools. As part of this amendment, boarding school facilities must adhere to minimum boarding standards to obtain and maintain registration, and one of these minimum standards requires WWVP Registration for all staff.

In addition the ACT Government, in its Third Annual Progress report, indicated that it is working towards the development and implementation of the National Reference System to support continuous monitoring and information sharing in their legislation.

 

Victoria

Current Requirements

Workers, including those undertaking practical training and volunteers engaged in child-related work, are required to have a WWC Check pursuant to the Worker Screening Act 2020 (Vic) and Ministerial Order 870/Ministerial Order 1359. Teachers who are registered with the Victorian Institute of Teaching (VT) are not required to obtain an additional WWC Check as their registration includes equivalent screening and checks.

It is against the law for the following people to even apply for a WWC Check:

  • a registerable offender under the Sex Offenders Registration Act 2004 (Vic)
  • a person who is subject to a supervision order, a detention order or an emerging detention order.

It is an offence to work with children without having applied for a WWC Check or holding a valid WWC Check Card.

It is an offence for anyone to apply for or engage in child-related work if they have been issued with a WWC exclusion.

 

Addressing the Royal Commission’s Recommendations

The Victorian Government officially endorsed the National WWCC Standards in June 2019, saying that the majority of the standards aligned with the Victorian Working with Children Act 2005 (Vic).

However, Victoria does not have a minimum frequency for working with children, under which a person does not need a WWCC (the minimum frequency in the National WWCC Standards is seven days or less, except if the child-related work involves an overnight stay).

In October 2020, the Victorian Government passed reforms in parliament that took further steps to implement centralised, national database recommendations. These reforms enable the sharing of information relating to individuals who have been refused a WWCC with the National Reference System.

Additional information regarding the Victorian approach to the Royal Commission’s recommendations can be found in its Annual Progress Reports.

 

South Australia

Current Requirements

In South Australia, the Child Safety (Prohibited Persons) Act 2016 (SA) and the Child Safety (Prohibited Persons) Regulations 2019 (SA) aim to ensure that people who work or volunteer with, or care for, children have their suitability to do so assessed by the Department of Human Services (DHS) Screening Unit.

In SA, people who are assessed as posing an unacceptable risk to the safety of children will receive a “prohibition notice” under the Act and will be prohibited from working or volunteering with children.

It is an offence to:

  • work with children without a WWCC. This includes paid, unpaid and volunteer work unless you qualify for an exemption under the Act
  • work with children if you are a prohibited person
  • employ or continue to employ a person in a prescribed position who has not had a WWCC conducted in the preceding five years.

There are serious penalties that apply for non-compliance with the WWCC Scheme obligations including significant fines and gaol terms for individuals.

 

Addressing the Royal Commission’s Recommendations

In 2019 the South Australian Government amended legislation to introduce a new WWCC Scheme (the scheme as described above) as a means of responding to recommendations of the Royal Commission directed specifically to that state. These changes made it a criminal offence to work with a child without obtaining a WWCC in the last five years and increased the expiry period of WWCCs from three years to five years to align with the WWCC requirements of other states.

No information is available about South Australia’s progress on participating in the National Reference System.

 

Tasmania

Current Requirements

In Tasmania people who work, volunteer or care for vulnerable people including children, have their suitability checked by and registered with a government body in accordance with the Registration to Work with Vulnerable People Act 2013 (Tas) and the Registration to Work with Vulnerable People Regulations 2014 (Tas). This is referred to as a Registration to Work with Vulnerable People (RWVP). There are three categories of RWVP:

  • RWVP (Children) enables people to work in child related activities
  • RWVP (Children and Adults) enables a person to work in child related regulated activities as well as other regulated activities that relate to vulnerable people
  • RWVP (NDIS) which enables a person to work in child-related regulated activities as well as activities that involve NDIS participants.

Unsuccessful applications for a RWVP are known as a Negative Notice, meaning that the person is not registered to work with children and cannot reapply for a period of five years.

It is a criminal offence for:

  • a person to work in a child-related regulated activity without a RWVP (Children), RWVP (Children and Adults) or RWVP (NDIS)
  • a person to work in a regulated activity in a category for which they do not have the required RWVP
  • an organisation to engage a person in a child-related regulated activity whose application for RWVP has been refused, or whose RWVP has been suspended or cancelled.

Additional information regarding RWVP can be found here.

 

Addressing the Royal Commission’s Recommendations

Tasmania has now endorsed all of the National WWCC Standards. In addition, in 2019 the Tasmanian Government was one of the first to integrate their local database for WWCCs with the National Reference System.

Further details regarding Tasmania’s approach to implementing the Royal Commission’s recommendations can be found in their Annual Progress Reports.

 

Western Australia

Current Requirements

Any person in child-related employment or who conducts child-related business must hold a current WWC Check in accordance with the Working with Children (Criminal Record Checking) Act 2004 (WA) and the Working with Children (Criminal Record Checking) Regulations 2005 (WA). Western Australia has a five-day threshold rule that allows a person to engage in child related work if they do not possess a WWC Check as long as they only work for a maximum of five calendar days a year. The five day threshold is conditional and does not apply to certain persons, including people who have been issued with a negative notice or have been charged with or convicted of an offence.

Like Queensland, in WA people who are not legally required to hold a WWC Check cannot apply for one.

Where the WWC screening Unit identifies that an applicant possess a risk of harm to children, the person is issued with a Negative Notice, prohibiting them from engaging in any child related work.

In WA, it is an offence for an individual to engage in child-related work without having either a valid WWC Check or an Application receipt number (meaning that an application has been made for a WWC Check). The maximum penalties are a significant fine and five years’ imprisonment.

 

Addressing the Royal Commission’s Recommendations

Since endorsing the National WWCC Standards the WA Government has supported the implementation of the Royal Commission’s recommendations by focusing on developing resources and learning tools for individuals and businesses relating to WWCC obligations. Note, however, that WA’s minimum frequency, under which a person does not need a WWCC, is five days, while the minimum frequency in the National WWCC Standards, and in all other jurisdictions, is seven days or less.

Like Tasmania and Victoria, WA has embraced the National Reference System and integrated its local WWCC database with the National Reference System.

In addition, WA has introduced a new proactive compliance program for community outreach with its Working with Children Check Unit. This program addresses Recommendation 32 of the WWCC Report and involves compliance officers reviewing social media sites such as Gumtree, Facebook Market Place and Tutor Finder to identify individuals who are participating in child-related work and thus need to have a WWCC .

 

Northern Territory

Current Requirements

In the NT the Care and Protection of Children Act 2007 (NT) mandates a screening process for child-related employment, including volunteers to prevent risk of harm or exploitation to children. In the NT the WWCC clearance is more commonly known as the Ochre Card and the review process is conducted by SAFE NT.

It is an offence to engage in child-related employment without a valid Ochre Card. It is also an offence to engage a barred worker for child-related employment.

 

Addressing the Royal Commission’s Recommendations

Like Victoria, the Northern Territory endorsed all 36 of the National WWCC Standards in 2019. However, many of the changes needed to implement the National WWCC Standards remain subject to legislative change and are being considered as part of the development of a single act for children in the Northern Territory.

No information is available about the Northern Territory’s progress on participating in the National Reference System.

 

Differences Between the State and Territory Approach to WWCCs

As we can see there are some commonalities in the approach of the states and territories to the implementation of the Royal Commission’s WWCC recommendations:

  • All jurisdictions have endorsed the National WWCC Standards and, in doing so, each state and territory has ensured that it is an offence to undertake child-related work without a WWCC.
  • All states and territories have recognised the importance of national collaboration in working to create child safe organisations. As such, several states have integrated their local WWCC database with the National Reference System.
  • There is a general consensus as to who requires WWCCs, what child-related work is and that certain people should not be permitted to work with children even if they are exempt from the WWCC.

Despite these similarities, significant differences remain between the jurisdictions’ approach to WWCC schemes overall. As we can see, the states and territories have different ideas about whether a person who is not required to have a WWCC by law can still apply for one and whether a person who has applied for a WWCC but has not been approved is able to work with children while their application is pending. Additionally, the list of people exempt from needing a WWCC differs between the states and territories. Further, not all jurisdictions’ WWCC databases are yet integrated into the National Reference System.

These functional differences between the state and territory WWCC schemes create barriers in the push to develop a unified and nationalised approach to WWCCs. The varied pace in which each state and territory is willing to progress changes to their WWCC schemes is also of concern. It has taken time for each state and territory to implement the Royal Commission’s WWCC recommendations, which creates gaps in the national approach to safety of children.

With increased collaboration and the introduction of national tools, we may see a shift in the individualised state and territory schemes to a comprehensive national model.

 

What Schools Need to Remember

Schools should remember to review the WWCC obligations in their jurisdiction. They should also be sure to have an up-to-date WWCC register and ensure that they are aware of any staff, relevant volunteers and contractors whose WWCC is soon to expire.

Schools should also keep abreast of the development of a National Register for WWCCs and their jurisdiction’s involvement in the National Reference System. They should also look out for any developments towards a nationally- unified approach to WWCCs that will contribute to the development of safe environments for children.

You can also look forward to other articles in this series that will further reflect on the recommendations from the Royal Commission almost five years on.

 

 

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.

 

Maddison Horne

Maddison Horne is a Legal Content Associate at CompliSpace. She recently completed a combined degree of Law and Communications (Political and Social Science) at the University of Technology Sydney.

 

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CompliSpace delivers industry leading SaaS solutions for High Impact Organisations in Highly Regulated Industries to ensure they meet their GRC obligations.

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