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Legal help for community organisations

New Working with Children Checks laws in Victoria – what do the changes mean for us?

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Who does this change affect?

If your community organisation works with or cares for children, you should familiarise yourself with these changes and consider the need to update your organisation’s policies and procedures.

Why the change?

Better recruitment, selection and screening practices for people working with children was identified by the Royal Commission into Institutional Responses to Child Sexual Abuse as a key measure to improve protection for children against harm. One of the outcomes of the Royal Commission was a Working with Children Checks Report, which made several recommendations to strengthen Working with Children Checks (WWCC) practices across Australia. In November 2016, the Victorian Parliament adopted some of these in an amendment to the Working with Children Act 2005 (Vic).

When will the changes come into effect?

The new laws will apply from 1 August 2017. The amending legislation can be found here.

What does the new law say?

Under the current Working with Children Check Act 2005 (Vic), a person engaged in ‘child-related work’ must obtain a WWCC. Currently, child-related work involves contact with a child that is unsupervised, direct and a part of the person’s duties in a particular occupational category (listed in the legislation).

There are four key changes your organisation should be aware of.

  1. ‘Direct contact’ definition expanded

Previously, ‘direct contact’ with a child involved face to face contact. The definition of ‘direct contact’ has now been widened to include written, oral and electronic communication. This means that letters, phone calls, email, SMS, MMS and other forms of remote communication will be considered ‘direct contact’, removing the requirement for physical proximity to the child. This change recognises the risks posed to children by online predators and the increasing opportunities to ‘groom’ children through technology.

  1. Supervision irrelevant

Under the new laws it will be necessary to obtain a WWCC regardless of whether contact with a child is supervised. Previously, a WWCC was not required if a person’s contact with a child was ‘directly supervised’. Because direct supervision did not require constant physical presence, in practice it was sometimes difficult to determine whether a WWCC was needed. This change eliminates any confusion by removing supervision as a consideration both for obtaining a WWCC and for assessing whether a person with a relevant criminal history might pose a risk to a child.

  1. ‘Kinship care’ included in ‘child-related work’

The definition of ‘child-related work’ has been expanded to include out of home care or ‘kinship care’. Generally, a person will need a WWCC if they are engaged in child-related work – being direct contact with a child – unless an exemption applies. Being ‘closely related’ to the child is one of the exemptions. The new law makes it clear that a family member or ‘other person of significance’ providing care out of home care to a child will be required to obtain a WWCC, despite that general exemption for closely related people.

  1. Non-conviction charges relevant to an assessment

Non-conviction charges are criminal charges against a person which did not result in a conviction or finding of guilt. Those charges will now form part of a relevant criminal history for a WWCC, where previously they were not. A person with a non-conviction charge will be assessed by the Department and will have their WWCC cleared unless they are considered to pose an unjustifiable risk to the safety of children or a reasonable person would not allow that person to have direct contact with a child.

Is there anything else we should know?

The new laws also provide the Department of Justice and Regulation with new powers to require the production of certain information. This may happen where there is a suspicion that a person is committing an offence against the Working with Children Act 2005 (Vic), or that a registered sex offender is engaging in child-related work. 

What does our community organisation need to do?

To make sure you are ready to comply with the new laws by 1 August 2017, you should take the following steps:

  1. Make sure you understand the new laws and how they apply to your organisation
  2. Undertake a review of the roles in your organisation and whether any of those previously not requiring WWCCs now fall into the new expanded definitions
  3. Update your recruitment, selection and screening practices to be consistent with the new requirements, and
  4. Seek legal advice if you are unsure about your legal obligations.