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Changes to legislation

Amendments to the Working with Children Act 2005 (the Act) took effect on 26 October 2014.  

The Act was amended to:

Information about the amendments is also available as a publication.

 

Child-related work

Significant changes have been made to the definition of child-related work. There is also a new definition of child-related work specifically for ministers of religion.

The new standard definition 

The new meaning of child-related work is work involved in one of the occupational fields listed in the Act, where the contact with a child is unsupervised, direct and a part of a person’s duties.

For example, a plumber attending to a burst pipe at a junior sports clubroom does not need to have contact with children to fix the burst pipe. Any contact they may have with children is incidental to their work, so the plumber does not need to get a Check.

New definition for ‘direct supervision’

Direct supervision now refers to supervision of a person’s contact with children, rather than of their work in general. Supervising another person’s contact with children must be personal and immediate but can include a brief absence, such as taking a phone call in another room.

New definition of ‘direct contact’

The definition of ‘direct contact’ previously included contact that was ‘within eyeshot’ of a child. This element has now been removed and no longer applies.

Direct contact now simply means that the person has to be able to talk face-to-face or have physical contact with a child.

Removal of ‘regular’ from the definition

To further simplify and remove ambiguities from the definition, the notion of ‘regular’ contact has been removed. ‘Regularity’ of contact is no longer an element that must be considered.

Incidental contact is not child-related work

The changes clarify that work is not child-related work if contact with children is only occasional and incidental.

For example, a plumber attending to a burst pipe at a junior sports clubroom does not need to have contact with children to fix the burst pipe. Any contact they may have is incidental to their work, so the plumber does not need to get a Check.

Occupational field changes

The changes clarify that workers in coaching and tuition services only require a Check if they are providing services specifically for children and not for coaching or tuition that is open to everyone including children.

A new occupational field has also been added. People now need a Check if they are providing accommodation services specifically for students as part of a student exchange program under Part 4.5A of the Education and Training Reform Act 2006. This includes accommodation such as home stay arrangements.

For the full list, go to Occupational fields.

 

Ministers of religion and child-related work

Previously, ministers of religious organisations were not required to hold a Check unless their contact with children was regular, direct and unsupervised.

All ministers of religion are now required to get a Check unless the contact they have with children is only occasional and incidental to their work.

Child-related work for ministers is defined more broadly than for everyone else. For ministers, child-related work is not limited to work involving direct and unsupervised contact with children. Any contact with children, unless it is only occasional and incidental, is enough to trigger the requirement to get a Check. This includes ministers who have children present in their congregation, or who attend schools or children’s camps, even when all their contact with children is supervised.

For details, go to the publication Ministers of religion - Information guide.

 

Exemptions

There are three changes to the exemptions.

1.  Interstate visitors

Interstate visitors can now do child-related work in Victoria without a Victorian Check for a period of up to 30 days in the same calendar year:

  • for several events or occasions if they have a Check from their state or territory, or
  • only for one event or occasion without a Check from their state or territory.

2.  Drivers accredited under the Transport (Compliance and Miscellaneous) Act 1983

From 26 October 2014, all accredited drivers doing child-related work are no longer exempt and must get a Check.

3.  Negative Notice holders

The Act now makes it clearer that people who fail the Check and served a Negative Notice cannot rely on any exemptions to do child-related work.  

 

The Check is not a suitability check

The Act no longer refers to the Check as a means of assessing a person’s suitability to work with children, as only organisations can do this.

The purpose of the Check is to screen a person’s criminal record history and professional conduct records going back over their lifetime, in order to help organisations protect the children in their care from sexual and physical harm.

However, the Check is just the first step organisations must take to keep children safe.

 

Expiry of a Check

Cardholders can no longer continue to do child-related work after their Check expires.

Previously, cardholders were allowed to do child-related work up to three months after their Check expired. The amendment means that they must now stop child-related work until they have renewed their Check. It is an offence to continue working in child-related work if your Check has expired.  

A Check can still be renewed during the three-month post-expiry period.  

This change to the Act does not alter the legislative requirements for people working under the following legislation to have a Check. These requirements are briefly explained at Working while my application is processed:

  • Children’s Services Act 1996
  • Education and Care Services National Law (Victoria) 
  • Child Employment Act 2003.

 

New classification system for offences

A new three-category classification system for offences and professional conduct was introduced to simplify decision making under the Act.

This change does not alter the main purpose of the Check, which is to protect children from sexual or physical harm by preventing people who pose an unjustifiable risk to children from working with, or caring for, them.

Category A (section 12 of the Act) covers:

  • offences previously known as category 1 offences: murder, and sex offences perpetrated by adults on children
  • three additional offences: attempted murder, rape and attempted rape (which were previously category 2 offences)
  • reporting obligations and orders under the various sex offender laws
  • pending charges for all offences in this new category.

Category B (section 13 of the Act) covers:

  • offences previously known as category 2 offences other than attempted murder, rape and attempted rape, which have been moved to category A
  • offences previously known as category 3 offences
  • additional offences: armed robbery, upskirting, child stealing, leaving a child unattended, failing to protect a child from harm and offences related to installing, using or maintaining optical surveillance devices
  • pending charges for all offences in this new category.

Category C (section 14 of the Act) covers:

  • professional conduct reports previously included in category 3
  • certain pending charges, convictions or findings of guilt committed by a child
  • any other offence not specified under category A or B.

 

Other changes

Paramountcy principle

The Act now clearly requires that the protection of children be the paramount consideration for any decision made under the Act.

For details, go to Application assessment.

Working while an applicant is screened and assessed  

The Act defines which applicants can and cannot work with children while their application is processed. Those who must not do child-related work are identified by the offences or reporting obligations listed in Schedule 3 of the Act.