The Victorian Government has recently implemented amendments to the Working With Children Act 2005 (the Act) in accordance with recommendations made by the Royal Commission into institutional responses to child sexual abuse. The amendments are aimed at strengthening the protection children receive through Working with Children Checks and do so by expanding the definition of ‘direct contact’; removing references to ‘supervision’; creating a new occupational category of ‘child-related work’; ensuring that non-conviction charges are considered; and compelling the production of certain information for the purposes of compliance monitoring.

In Issue

  • The protection provided to children in Victoria through Working with Children Checks.

Background

In Australia, each state and territory has its own scheme for conducting background checks for people seeking to engage in child related work. These schemes, commonly known as Working with Children Checks (WWCCs) help ensure the right people are chosen to work or volunteer with children. The Royal Commission into Institutional Responses to Child Sexual Abuse (RCIIRCSA) decided to examine the WWCC schemes because, early in its work, it became apparent that the schemes were not as effective as they could be at contributing to children’s safety in organisations. The following amendments to the Act implement the recommendations of the RCIIRCSA.

Implementation of Reforms

The amendments change the definition of ‘child-related work’ to mean ‘Work within one or more of the occupational fields defined in the Act where contact with a child is direct and part of a person’s duties’. The term ‘direct contact’ (which previously only related to physical or face-to-face contact or communication with the child) has now been expanded to included contact by post or other written communication; telephone or other oral communication; and email or other electronic communication. Therefore, where the primary purpose of a person’s job is to provide a service to a child over the phone or electronically (such a phone counselling service) that person must hold a valid Working With Children Check (WWC Check).

Previously, persons who were directly supervised by another person when working with children were not required to hold a WWC Check. This exclusion no longer applies and all persons who work with children, whether under direct supervision or not are required to hold a WWC Check.

If a charge against a person relating to serious sexual, violent or drug offences has been finally dealt with then that may now be taken into account as part of a WWC Check - even where a person has not been convicted of that charge. This may include: charges that have been withdrawn; charges that have been dismissed because a person has completed a diversion program; convictions that have been quashed on appeal; and charges that have resulted in a person being acquitted of the charge.

The Act contains various other incidental changes, including the ability of the Secretary to the Department of Justice and Regulation to require anyone to provide information to determine whether a suspicion relating to breaches of the Act is reasonable. These breaches include: persons performing child-related work without a WWC Check; persons using a false WWC Check or another person’s Check; and engaging a person in child-related work who does not have a WWC Check.

Breaches of the Act may result in the person being charged and facing a fine of up to 60 penalty units (i.e. approximately $9,500 at present).

Implications for Employers

Given the above, Victorian employers in particular would be advised to familiarise themselves with these changes and to take steps to ensure that they are compliant with the changes to the Act.

In addition to a WWC Check it would also be prudent practice for employers whose workplaces require workers of volunteers to have contact or communication with children to also undertake their own enquiries by contacting referees and obtaining a National Police Records Check.