The Working with Children Check is established by the Working with Children Act 2005, also known as ‘the Act’.

The Act is one of the key pieces of legislation governing how we protect and promote the safety and wellbeing of children and young people in Victoria.

Over time, changes to the Working with Children Act 2005 and Working with Children Regulations 2016 are made to keep up with community expectations and to further strengthen the Working with Children Check. We’ve created a summary of the changes to legislation to help you stay up-to-date with the Act and understand how it might affect you.

There are a number of separate but related pieces of legislation relevant to the Check or people doing child-related work in Victoria, categorised below.

You can find the Victorian legislation referred below on the Victorian Legislation and Parliamentary Documents (External link)  website. You can find Commonwealth legislation on the Federal Register of Legislation (External link) website.

Criminal legislation relevant to the Act

Working with Children Check Act – Relevant offences
Classification (Publications, Films and Computer Games) (Enforcement) Act 1995
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Crimes Act 1958
Criminal Code Act 1995 (Commonwealth)
Criminal Procedure Act 2009
Sentencing Act 1991
Serious Sex Offenders (Detention and Supervision) Act 2009
Summary Offences Act 1966
Surveillance Device Act 1999

Privacy legislation relevant to the Act

Freedom of Information Act 1982
Health Records Act 2001
Privacy and Data Protection Act 2014

 

Administrative legislation relevant to the Act

Child Wellbeing and Safety Act 2005
Victorian Civil and Administrative Tribunal Act 1998

 

Occupational fields, definitions & exemptions

Child Employment Act 2003
Children's Services Act 1996
Children’s Services Regulations 2009
Children, Youth and Families Act 2005

 

Recent changes to legislation

Significant amendments to the Working with Children Act 2005 (the Act) came into effect on 1 August 2017. You can access the Act online.

Why did the Act change?

The Royal Commission into Institutional Responses to Child Sexual Abuse considered different Working with Children Check schemes around Australia and made a number of recommendations to support national consistency. The new laws that commenced in August 2017 strengthened the Victorian Working with Children Check and implemented a number of the Royal Commission’s recommendations.

Quick summary of the changes:

  • The definition of ‘direct contact’ in the Act has been expanded to include oral, written and electronic communication.
  • References to ‘supervision’ from the Act have been removed. 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 Check.
  • Out of home care, or ‘Kinship care’, has been added as a new occupational category of ‘child-related work’. Family members or other persons of significance to a child where that child has been placed in their care by Child Protection,  under the Children, Youth and Families Act (2005) are required to get a Check. 
  • Non-conviction charges for serious sexual, violent or drug offences will now be considered part of the Check assessment and re-assessment.  
  • The Secretary to the Department of Justice and Community Safety is enabled to compel the production of certain information for the purposes of compliance monitoring.
  • Plus 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, or you can download the Legislative amendments guide.

 

 

Child related work

Removal of 'supervision' from child-related work

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 another person directly supervised a person’s contact with children, they didn’t require 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 the head coach directly supervises him, Chris is still required to hold a Check.

New definition of 'direct contact'

Previously, the term ‘direct contact’ only referred to physical contact or face-to-face communication with a child. To reflect the growing use of technology, which is presenting more opportunities for grooming children, the new definition of ‘direct contact’ now includes the following types of contact:

  • physical contact
  • face-to-face 
  • post or other written communication
  • phone or other oral communication
  • email or other electronic communication.

For example: John is employed as a counsellor with a phone counselling service for young people aged between 5 and 18. Because John’s role involves direct contact with children by phone, he’s required to hold a Check.
 

 

 

Non-conviction charges

Addition to Check assessments

The Act now allows for non-conviction charges against a person for certain sexual, violent or drug offences to be considered as part of Check assessments. A non-conviction charge is a charge finalised without a conviction or guilty verdict, for example:

  • a charge that has been withdrawn
  • a charge that has been discontinued
  • a conviction that has been set aside on appeal
  • a charge that has led to an acquittal.

This change brings Victoria into line with all other state and territory Working with Children Check regulators.

 

Power to demand information

The Secretary

The Secretary to the Department of Justice and Regulation can demand that information is provided that might help them determine whether a suspicion is reasonable.

The suspicion must be 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. These offences include:

  • 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
  • the use of a volunteer Check for paid child-related work
  • using a false Check or using another person’s Check
  • the engagement of 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 fined.

It is a reasonable excuse for an individual to fail to provide the information requested, if providing that information would incriminate them.

 

Other changes

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.

Interstate offences

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. An interstate child abuse material offence is also a category A offence.

Carnal knowledge committed as an adult

If a person has been charged with, convicted or found guilty of the offence of carnal knowledge as an adult, 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 while their application is being assessed.

    Full versions of the WWC Act and Regulations are available online as PDF documents.

     Access the Act (External link)

    Related pages