CHILD PROTECTION (WORKING WITH CHILDREN) AMENDMENT (STATUTORY REVIEW) BILL 2018

2nd Reading Speech

10 April 2018


The Hon. ADAM SEARLE ( 15:13 ): I lead for the Opposition on the Child Protection (Working with Children) Amendment (Statutory Review) Bill 2018. The Opposition will not oppose the bill. The working with children check [WWCC] was first established in 1998 by the Carr Labor Government. Two Acts introduced the New South Wales Working with Children Check Scheme: the Child Protection (Prohibited Employment) Act 1998; and the Commission for Children and Young People Act 1998. In 2012, the Government introduced the Child Protection (Working with Children) Act 2012 in response to a review of the Commission for Children and Young People Act 1998, and an Auditor-General’s report on the working with children check. This bill overhauled the WWCC scheme and introduced a statutory review in section 53, to be conducted by the Minister five years after the date of assent. The department has now undertaken this statutory review, in line with the Act, and has made a number of recommendations which have given rise to the legislation now before the House.

In 2015 the Royal Commission into Institutional Responses to Child Sexual Abuse examined the WWCCs nationwide and made 36 recommendations for all of the Commonwealth and State and Territory jurisdictions to adopt, which aimed to create a national framework an d consistency of standards across those jurisdictions. In the 2015-16 State budget, the New South Wales Government removed 82  staff from Family and Community Services [F ACS ] as it then was , which included a cut of 11  jobs from the Office of the Children’s Guardian—saving around $2  million  which administers the WWCC scheme. After pressure from the Opposition, the then Baird Government reversed these cuts to the Office of the Children’s Guardian.

In June 2015, and in response to royal commission recommendations for out-of -home care [OOHC], the New South Wales Government introduced the Child Protection Legislation Amendment Bill 2015. This included a number of changes to Working with Children’s Chec ks such as requiring an employer to verify an employee’s WWCC status on the register, requiring verifications to occur both before the worker commences child  rel ated work and then again after five years , and also reducing the time frame for WWCC applicants to provide further information to the Office o f the Children’s Guardian from six months to three months.’

During the debate on this 2015 bill, the Government incorporated Opposition amendments expanding the list of disqualifying offences, which would prohibit an applicant from receiving a WWCC clearance within New South Wales and prohibit the right of review to the Office of the Children’s Guardian or to the New South Wales Civil and Administrative Tribunal [NCAT] where an applicant had been previously convicted of a serious criminal offence . The latter issue is again being revisited in this legislation. In 2016 the Government further introduced the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Bill 2016 which contained a package of further amendments to legislation relating to child protection, employment, and education proposed by New South Wales Children’s Guardian.

This year the purpose of the legislation now before the House is to amend the Child Protection (Working with Children) Act 2012 and other legislation to strengthen and streamline laws in relation to working with children. The bill implements the first tranche of recommendations that come from the 2017 statutory review into the 2012 Act. The bill also intends to implement further royal commission recommendations and is a continuation of the reform process in this area aimed at achieving national consistency of standards across different jurisdictions.

The bill before the House amends the Child Protection (Working with Children) Act 2012 as well as the Child Protection (Working with Children) Regulation 2013 and the Child and Young Persons (Care and Protection) Regulation 2012 in the following ways. Proposed section 6 amends the definition of ch ild-related work in the 2012 Act so that direct contact with children must be a usual part of the r ole , rather than more incidental to the work being performed. This i s proposed to ensure that the scope of the WWCC scheme is properly focused on those persons whose role or occupation most need to be brought within the focus of the scheme. Proposed section 5C inserts a definition of “criminal history” into the 2012 Act which expands on the current definition of “criminal record” to include whether convictions are spent or not , findings of guilt that did not result in a conviction being recorded, and charges regardless of the status or outcome, and irrespective of whether or not it relates to a person’s history as an adult or a child .

This information is already considered in the working with children check assessment process in New South Wales but it is not specifically defined in the legislation. The proposed change is in line with recommendations from the royal commission. The bill also changes all references to “criminal record” to “criminal history” throughout the legislation. Relating to criminal history information the royal commission report provided:

17.State and territory governments should amend their WWCC laws to include a standard definition of criminal history for WWCC purposes, comprised of:

a.convictions, whether or not spent

b.findings of guilt that did not result in a conviction being recorded

c.charges, regardless of status or outcome, including:

i.pending charges . That is, charges laid but not finalised

ii. charges disposed of by a court, or otherwise, other than by way of conviction

(for example, withdrawn, set aside or dismissed)

iii. charges that led to acquittals or convictions that were quashed or otherwise over-turned on appeal

for all offences, irrespective of whether or not they concern the person’s history as

an adult or a child and/or relate to offences outside Australia.

The expansion in new section 5C is referable to the recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse. New sections 9 and 9A amend the 2012 Act to make it an offence for an employer, or respective placement agencies on behalf of an employer, to fail to obtain and verify the details of a worker employed to work with children or to keep a record of the details that were obtained. This is proposed to facilitate greater compliance with the scheme. New section 9AA is inserted into the legislation to require licensing, registration and accreditation authorities to obtain and verify the details of a person to whom a licence, registration or accreditation is provided, and to keep a record of the details that were obtained. This is being proposed to address a gap that has been identified in the statutory review whereby licensing authorities and placement agencies did not have verification obligations.

New section 10 (5) (c) is to be inserted into the Act to provide discretion to the Children’s Guardian to permit a child who turns 18 to continue to reside with an authorised carer despite not holding a Working with children check clearance. The amendment is being introduced to mitigate the unintended consequence of the previous regulations that forced a few vulnerable young people out of placements with an authorised carer because the continuing placement involved care with other children under 18, usually their siblings. Because the young person turning 18 did not hold a clearance they were forced out of their care placement, which was an unintended consequence with many negative repercussions for those concerned. The Office of the Children’s Guardian will now be allowed to authorise “continuing residence approval”, provided that there is evidence of sufficient risk mitigation strategies within the placement.

Sections 27 and 28 will be amended within the 2012 legislation to change the powers of the NSW Civil and Administrative Tribunal [NCAT] when carrying out reviews under the Act. The legislation will propose a new requirement to consider any existing court or tribunal orders that are in place when carrying out a review. There will also be the requirement for NCAT not to stay a decision to refuse or cancel—or to impose an interim bar—on a Working with children check clearance unless the tribunal is satisfied that appropriate arrangements are in place for the supervision and enforcement of its conditions.

The amendment is being proposed to mitigate risks associated with individuals who have committed serious offences being able to appeal the decisions of the Office of the Children’s Guardian to continue working with children. It is noted that in 2015 the Opposition proposed amendments to the Child Protection Legislation Amendment Bill 2015 that addressed concerns about the number of appeals of decisions of the Office of the Children’s Guardian by individuals who had previously committed serious offences. The Government at the time incorporated those amendments into the legislation.

New section 31 amends the powers of the Office of the Children’s Guardian to allow it to require persons as well as government agencies to provide information relevant to the preparation of submissions to NCAT or related to the assessment of risk posed by a person as directed by the Children’s Guardian. This is being proposed so that the Office of the Children’s Guardian and NCAT will have better information available to assess the risk posed by applicants who have applied for a Working with children check clearance. New section 36B is inserted into the legislation to require applicants for a Working with children check clearance to notify of any changes in their personal details. The proposed change puts a positive obligation on individuals to ensure their details are up to date with the Office of the Children’s Guardian and assists the office to have more up-to-date information on Working with children check applicants and clearance holders. New sections 50A and 50B will permit penalty notices to be issued for offences and non-compliance with the Act.

At schedule 2 the Child Protection (Working with Children) Regulation 2013 is amended to require parent volunteers on overnight camps to have a Working with children check clearance. This involves removing an exemption that currently exists for parents who volunteer on overnight camps with their children. This is being proposed to respond to the inherent risks that exist in the context of unsupervised overnight camps. The royal commission noted that most child sex offenders are known to their victims and that they are usually trusted adults to them. It is in that context that unsupervised overnight camps could represent a risk to other children, even when the offender has their own children at the camp. The proposed change does not remove the general exemption that exists around volunteering; however, it is amended to require a Working with children check clearance where the volunteering involves attending an overnight camp. As with other volunteers, the Government is proposing to not charge parents who need a Working with children check in order to attend an overnight camp. In our view, that is an entirely appropriate response. With those observations, the Opposition will not be opposing this legislation.