Increased scope of child-related work
In November 2015, the NSW Government introduced reforms to strengthen the protection of children, particularly in situations where they are not in the care of their parents or families.
Summary of changes
In November 2015, the NSW Government introduced reforms to strengthen the protection of children, particularly in situations where they are not in the care of their parents or families. These changes have been made under the Child Protection Legislation Amendment Act 2015 to the following Acts:
- Adoption Act 2000
- Children and Young Persons (Care and Protection) Act 1998
- Child Protection (Working with Children) Act 2012
- Ombudsman Act 1974
- Community Services (Complaints, Reviews and Monitoring) Act 1993.
The changes aim to make sure that anyone in NSW who: carries out child-related work; resides on a property of an authorised carer or on a property where home-based education and care service or family daycare services is provided; or holds a key position in an agency providing out-of-home care and adoption services has a Working With Children Check (WWCC) clearance that has been properly verified online.
These amendments come into effect on 2 November 2015. They affect all employers and organisations providing child-related services with roles that require a Working With Children Check clearance.
Key changes by area
Open all- Child-related employers
Employers and organisations must register and verify child-related workers online
Employers must verify a person’s WWCC application or clearance online before engaging that person to work in child-related employment. Sighting the WWC number is not sufficient verification.
Employers must verify online the WWC clearance status of all existing child-related workers within three months of the law taking effect on November 2, 2015. Verification must be done through the Working with Children Check Employer Register.
Expiring WWC clearances
A worker with an existing WWC clearance that is due to expire must reapply for a new WWCC and provide the new number to their employer. The employer must verify the new WWC application or clearance online within five working days of the expiry date of the old WWC clearance number.
- Designated agencies
People who reside on the property of an authorised carer must hold a Working With Children Check clearance
All people residing for longer than three weeks on the property of an authorised carer or on a property where home-based education and care service of family day care service is provided must hold a WWC clearance. This includes people sleeping on a regular or frequent basis anywhere on the property, including a building, caravan, structure, vehicle or other thing.
Key positions in governing bodies to have WWCC
A governing body must ensure that a person appointed to a key position, for example a chief executive officer or principal officer, holds a clearance. A record must be kept for 7 years detailing how the governing body determined that the person held a clearance.
Provision of information for selection purposes
Any person can provide information to a Principal Officer or the Secretary of Family and Community Services (FACS) about another person reasonably believed to be a prospective adoptive parent, authorised carer/carer applicant, guardian/prospective guardian.
Information can also be provided about a person residing on the same property of any of the above.
This information can be used to determine a person’s suitability for the relevant role.
Details of changes relevant to designated agencies in the table at the bottom of this page.
- Working With Children Check clearances
Decisions that are not reviewable by the NSW Civil and Administrative Tribunal
People convicted and imprisoned for murder, the indecent or sexual assault of a child, child pornography or incest with a child victim will never be able to appeal to the NSW Civil and Administrative Tribunal (NCAT) to overturn a ban on them working with children.
Persons subject to a control order, for example good behaviour bond or home detention, cannot appeal to NCAT against a refusal decision for the duration of the order.
Time frame to provide further information reduced
When the Children’s Guardian makes a request to a WWCC applicant for further information, the time frame to provide that information has been reduced from six to three months.
Withdrawal of WWCC application by consent only
Withdrawal from a WWCC application is only possible with the consent of the Children’s Guardian.
Application of a reasonable person test
A ‘reasonable person test’ has been introduced. This means that a WWC clearance or enabling order cannot be granted unless the Guardian or Tribunal respectively is satisfied that a reasonable person would allow his or her child to have direct contact with the affected person who was not directly supervised.
- Exchange of information
The Ombudsman and the exchange of information
The NSW Ombudsman can provide information about investigations into reportable allegations to the child or person with a disability who is the alleged victim of the conduct to which the allegation relates.
The Ombudsman also has the power to provide that information to certain other people, for example carers or parents, who are concerned with the welfare of the victim.
The Ombudsman’s reportable conduct framework also applies to individuals who reside on the same property with an authorised carer for more than three weeks – in the same way it is applied to the authorised carer (who is considered to be an employee of the designated agency).
Disclosure of information to bodies in other jurisdictions
Information can be exchanged between state child protection bodies and bodies that arrange or provide child protection, out-of-home care, guardianship or adoption services in other jurisdictions.
The type of information that may be exchanged needs to be relevant for assessing the suitability of a person to be an adoptive parent, authorised carer or guardian or equivalent in other jurisdictions.
Provision of information to the Children’s Guardian
In addition, persons acting in the role of Official Community Visitors can provide the Children’s Guardian with any information that the Children’s Guardian determines is relevant to the accreditation or registration of a designated/registered agency.
Details of changes for designated agencies
Amendments to the Adoption Act 2000
| Amendments | Reference |
|---|---|
| Anything done by or with the approval of the Principal Officer will be taken to be done by the accredited adoption service provider – that is the actions of the Principal Officer are equivalent to the actions of agency | s. 14 |
| Applicant” means a person whose application to adopt that is still current. “Reside on a property” includes sleep on a regular or frequent basis anywhere on the property (including in a building, caravan, structure, vehicle or other thing). (This is the same meaning as in the Child Protection (Working with Children) Act 2012). | s. 41A and s. 45CA |
| In the selection of prospective adoptive parents other than authorised carers and the selection of authorised carers as adoptive parents, any person can provide information about another person to the Principal Officer/ Secretary of Family and Community Services if they have been notified or reasonably believe that that person is an applicant/person who resides on the same property as the applicant. The information provided can be used to decide on a person’s suitability to adopt. | s. 45AA and s. 45GA |
| An adoption applicant must notify the Secretary of Family and Community Services/Principal Officer if any person resides on the property for more than three weeks or if a person residing on the same property turns 18. | s. 45AB and s. 45GB |
| A Principal Officer can invite an authorised carer of a child in out-of-home care to apply to adopt the child in accordance with Clause 17 of the Adoption Regulation. | s. 45D |
Child Protection (Working With Children) Act 2012
| Amendments | Reference |
|---|---|
| A new definition of “notifiable person” has been introduced to clarify who should be notified if a person is barred or interim barred. | s. 5 |
| “Resides on property” includes sleep on a regular or frequent basis anywhere on the property (including in a building, caravan, structure, vehicle or other thing). | s 5A |
| Government and designated agencies are required to register and verify online a Working With Children Check clearance before employing a person or within five days of a clearance expiring. | s.9A |
| Governing bodies must make sure persons appointed to key positions hold a WWCC clearance and must keep a record for seven years on how the governing body determined that the person held a clearance. | s. 9B |
| Interim bars are enforceable against adults residing on the same property as an authorised carer or person providing home care services. These adults can, however, rely on a defence that they did not know about an interim bar, withdrawal, termination, refusal or cancellation for more than 48 hours. | s. 10 |
| Designated agencies will be responsible for verifying prospective adoptive parents, prospective guardians and adults residing on the same property with them and adults residing on the same property as an authorised carer or carer applicant. | s. 11B |
| Clarification that an interim bar means a person is barred from residing on the same property as the authorised carer/home based education/family day care service provider. | s. 17 |
| Designated agencies must notify the Children’s Guardian if they find misconduct against an adult person who has resided for more than three weeks on the property of an authorised carer. | s.35 |
| The Children’s Guardian is permitted to disclose information about an authorised carer, carer applicant, prospective adoptive parent, guardian or prospective guardian, persons who resides with any of the above to the Secretary of Family and Community Services for the purpose of his/her functions under Part 4 of the Care Act ie about a child and young person in need of care/protection. | s.48A |
Children and Young Persons (Care and Protection) Act 1998
| Amendments | Reference |
|---|---|
| Clarification of meaning of Principal Officer: The Principal Officer is the person with the overall supervision of the agency’s arrangements for providing the relevant type of care Anything done by the Principal Officer or with the approval of the Principal Officer is taken to be done by the relevant agency (ie designated agency/registered agency) This provision applies to things done by or with the approval of a Principal Officer before and after the commencement of this amendment. | s 5A |
| The Children’s Court is not to make an order allocating any aspect of parental responsibility to an organisation or Principal Officer (but can make it to the Secretary of Family and Community Services ). | s 79 |
| The Secretary must not make an application for a guardianship order or consent to a designated agency or other person making such an application unless satisfied that the person has satisfied suitability assessments under the Child and Young Persons (Care and Protection) Regulation 2012. | s 79B |
| A care plan by an applicant for guardianship must include information about contact arrangements between child and persons connected with the child. | s 79B(9) |
| A prospective guardian (other than an authorised carer) must notify the Secretary of Family and Community Services if a person resides on the same property as the prospective guardian for three weeks or more if a person residing on the same property turns 18 This extends to any person residing on the same property who has not been notified even if the person commenced residing or turned 18 before the commencement of the provision. | s 79D |
| An authorised carer must notify a designated agency if a person resides on their property for more than three weeks, or if a person residing on their property turns 18 years old. This extends to any person residing on the carer’s property who they have not notified the designated agency about, even if the person commenced residing or turned 18 before the commencement of the provision. | s 137 |
| It is an offence with maximum penalty of $22,000 if the Principal Officer of a designated agency resides on the same property as a child/young person who is in out-of-home care supervised by the designated agency. It is not an offence if the Principal Officer resides with a child at a facility of a designated agency at which out-of-home care is provided. | s 171A |
| Decisions not to authorise a person as an authorised carer, decisions to cancel an authorisation granted on a provisional basis and decisions to cancel authorisation on the occurrence of an event prescribed by the regulation that raises a presumption of cancellation will NOT be reviewable by the NSW Civil and Administrative Tribunal. The limitation of review rights do not apply to decisions made before the commencement of the amendment. | s 245 |
| Permits a person to be prescribed as a prescribed body for the purposes of information sharing under Chapter 16A. | s 245B |
| Any person can provide information about specified categories of individuals to a designated agency. The designated agency can use that information to assess the individual’s suitability as an authorised carer or guardian. The specified categories of individuals are authorised carers, carer applicants, guardians, prospective guardians or persons who reside on the properties of such persons. A person who provides such information in good faith to a designated agency is protected from liability by Chapter 16A. | s 245CA |
| Makes provision for exchange of information between state child protection bodies and bodies that arrange or provide child protection, out-of-home care , guardianship or adoption services in other jurisdictions The type of information that may be exchanged is assessment information relevant to assessing the suitability of a person to be an adoptive parent, authorised carer or guardian or equivalent in other jurisdictions | s 248B |
| Regulations can make provision for appointment of Principal Officers and other officers by designated agencies and registered agencies and with regard to the Carers Register. | s 264 |
Community Services (Complaints Reviews and Monitoring) Act 1993
| Amendments | Reference |
|---|---|
| An Official Community Visitor is to provide the Children’s Guardian with any information that the Children’s Guardian determines is relevant to the accreditation or registration of a designated agency or a registered agency This extends to information obtained by an official Community Visitor before the commencement of this provision. | s 8A |
| A person can make a complaint to the Ombudsman about the conduct of a designated agency re authorisation of a person as an authorised carer. | s 22 |
Ombudsman Act 1974
| Amendments | Reference |
|---|---|
| Part 3A will apply to individuals who reside on the same property with an authorised carer (other than a child)for more than three weeks in the same way that it applies to an employee and such an adult is taken to be the employee of the designated agency that authorised the carer. | s 25AAA |
| Certain information about an investigation into a reportable allegation may be disclosed to the child who is allegedly the subject of the misconduct that is the basis of the allegation, the parent or the authorised carer of the child. This extends to information about an investigation that began before the commencement of this amendment. | s 25GA |
| Certain information about an investigation into a reportable allegation may be disclosed to the person with a disability who is allegedly the subject of the misconduct that is the basis of the allegation, the nominee or specified persons concerned about the person’s welfare. This extends to information about an investigation that began before the commencement of this amendment. | s 25WA |
