Amendments to the Working with Children Act 2005 (the Act) came into effect on 1 August 2017
The Royal Commission into Institutional Responses to Child Sexual Abuse made several recommendations aimed at strengthening the protection children receive through Working with Children Checks. The following amendments to the Act implement these recommendations:
- Expand the definition of ‘direct contact’ in the Act. The definition of direct contact now includes oral, written or electronic communication as well as face-to-face and physical contact.
- Remove references to ‘supervision’ from the Act. This means that even if a person’s contact with children as part of their child-related work is supervised by another person, they will still need to apply for a Working with Children Check (Check).
- Create a new occupational category of ‘child-related work’, known as ‘kinship care’. Family members or other persons of significance caring for a child placed by Child Protection under the Children, Youth and Families Act 2005 are required to obtain a Check.
- Ensure that non-conviction charges (charges that have been finally dealt with other than by a conviction or finding of guilt) for serious sexual, violent or drug offences are considered as part of Check assessments and re-assessments.
- Enable the Secretary to the Department of Justice and Regulation to compel the production of certain information for the purposes of compliance monitoring.
In addition, various other miscellaneous and technical amendments have been made to improve the Act’s operation and administration.
Detailed information on the changes is provided below. This information is also available as a publication.
Significant changes have been made to the definition of child-related work.
Removal of ‘supervision’ from the definition
The reference to ‘supervision’ has been removed from the definition of child-related work and no longer applies.
Previously, the element of supervision was used to determine whether a person required a Check. If a person’s contact with children was directly supervised by another person, then they were not required to hold a Check.
Now, a Check is required whether contact with children is supervised or not. This amendment responds to the Royal Commission’s findings that perpetrators can often groom children in the presence of other people.
For example: Chris has taken up a position as an assistant coach of a junior football team. Even though he is directly supervised by the head coach, Chris is still required to hold a Check.
New meaning of ‘direct contact’
Previously, the term ‘direct contact’ only referred to physical contact or face-to-face oral communication with a child. In order to reflect the growing use of technology, which is presenting more opportunities for grooming children, the new definition of ‘direct contact’ has been expanded to include the following types of contact:
- face-to-face contact
- contact by post or other written communication
- contact by telephone or other oral communication
- contact by email or other electronic communication.
For example: John is employed as a counsellor with a phone counselling service specifically for young people aged between 5 and 18. Because John’s role involves direct contact with children by telephone, he is required to hold a Check.
New occupational field
Kinship care is now considered to be a type of child-related work and has been added as a specific occupational field. Kinship carers are required to pass the Check.
Kinship carers are required to obtain a volunteer Check, which is free of charge.
For the purposes of the Check, a person is engaged in kinship care if:
- the person is a family member or other person of significance to a child
- the child is or has been placed in the out of home care of that person under the Children, Youth and Families Act 2005. Out of home care means care of a child by a person other than a parent of the child.
Kinship carers obtaining a Check
There are two dates that apply to kinship carers.
From 1 May 2017, all new kinship carers are required to apply for a Check within 21 days of being approved as a carer. This acknowledges the challenging situations often surrounding kinship care placements, such as emergency placements.
Existing carers are required to apply for a Check within 21 days of 1 August 2017.
There is one change to the exemptions. Ordinarily, a person working with a child who is closely related to them is exempt from the Check. This exemption does not apply if the person is a kinship carer. A person who engages in kinship care work must hold a Check.
The Act now allows for non-conviction charges against a person for serious sexual, violent or drug offences to be considered as part of Check assessments and re-assessments. A non-conviction charge is a charge that has been finally dealt with other than by way of conviction or finding of guilt. For example:
- a charge that has been withdrawn
- a charge that has been discontinued
- a conviction that has been quashed on appeal
- a charge that has led to an acquittal.
This change brings Victoria into line with all other state and territory WWC Check regulators.
If the Secretary to the Department of Justice and Regulation (the Secretary) suspects that a person has committed an offence against the Act, the Working with Children Check Regulations 2016 or Part 5 of the Sex Offenders Registration Act 2004, then the Secretary has the power to require anyone to provide information to help determine if the suspicion is reasonable. The Secretary can also notify the Chief Commissioner of Police about these suspicions. These offences include:
- a person engaging in child-related work without a Check
- a person who has been given a negative notice applying for a Check or engaging in child-related work
- a person using a volunteer Check for paid work
- a person using a false or other person’s Check
- a person engaging a person in child-related work who does not have a Check
- an agency offering the services of a person who does not have a Check
- a registered sex offender engaging in child-related work.
If a person receives a request for information from the Secretary and fails to provide that information without a reasonable excuse, they may be charged and face a fine of 60 penalty units (maximum penalty).
It is a reasonable excuse for an individual to fail to provide the information requested, if providing that information would incriminate them.
Removal of the term ‘supervision’ from the Act
The term ‘supervision’ is now removed from the Act, not only in relation to the definition of ‘child-related work’ but also from the criteria used to assess a person’s application for a Check, and defences to offence provisions under the Act. Therefore, whether a person’s work is supervised or not, is no longer a relevant consideration under the Act.
Considering an applicant’s age
In some circumstances, the age of the applicant at the time of their offending/alleged offending determines which category they will fall into. The Act now clarifies that the categorisation of assessments and re-assessments is determined by the age of the applicant at the time the offence or alleged offence was committed.
If the offending occurred over a period of time and the applicant was at any time an adult during that time, the person is taken to be an adult for the purpose of the assessment/re-assessment.
The Act now states that for the purpose of the equivalent interstate offences of murder, attempted murder, rape and attempted rape, the age of the victim is irrelevant and these offences are considered as category A offences for the purposes of assessments and re-assessments. An interstate child abuse material offence is also a category A offence.
Carnal knowledge committed as a child
If, as an adult, a person has been charged with, convicted or found guilty of the offence of carnal knowledge then they must not engage in child-related work while their application is being assessed.
People who have committed the offence as a child are not restricted from working with children whilst their application is being assessed.