Changes to regulatory powers of the Office of the Children’s Guardian

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In October 2016, the NSW Government introduced reforms to strengthen the regulatory powers of the Office of the Children’s Guardian.

Summary of changes

New amendments tightened provisions for appealing against decisions to bar unsuitable Working With Children Check applicants from working with children. Also, under the Working With Children Check, it is now an offence to make a false or misleading statement, punishable by a maximum penalty of $550.

These changes are included in the Child Protection (Working with Children) and Other Child Protection Legislation Amendment Act 2016, making amendments to the following Acts:

Child Protection (Working with Children) Act 2012
Children and Young Persons (Care and Protection) Act 1998
Teaching Service Act 1980
Education (School Administrative and Support Staff) Act 1987

Amendments to the Teaching and Education Staff Acts provide for suspension from duty (instead of dismissal) for a person whose Working with Children Check is cancelled because of a pending charge for a serious offence under the Working with Children legislation.

In children’s employment, the amendments give the Office of the Children’s Guardian new powers to enter and inspect premises where they reasonably suspect a person is illegally employing a child, as well as the ability to serve on-the-spot penalty notices for breaches of children’s employment legislation.

Details of changes

Child Protection (Working with Children) Act 2012

Amendments	Reference
A clearance can be cancelled if a WWCC holder does not respond to a request for information from the Office of the Children’s Guardian within 3 months. Previously, only applications for a WWCC could be terminated if the applicant did not respond to a request for information within 3 months. Therefore, WWCC applicants and holders will be treated consistently in relation to responses to requests for information.	Amended s 16(2) and (3) regarding termination and cancellation
A clearance can only be surrendered with the Children’s Guardian’s consent. Previously, clearances could be surrendered at any time, whereas WWCC applicants could only withdraw their applications with the Children’s Guardian’s consent. Therefore, WWCC applicants and holders will be treated consistently in relation to surrenders and withdrawals.	Amended s 24 regarding surrender of clearances
A person whose clearance has been cancelled due to pending charges cannot appeal at NCAT. Previously, only applicants who have had clearances refused due to pending charges were prevented from appealing at NCAT. WWCC applicants and holders will now be treated consistently in relation to appeals after pending charges.	Amended s 26(1)(c) regarding persons unable to appeal at NCAT
Clarifies that a person cannot appeal at NCAT if convicted of certain offences and subject to an interstate or overseas order equivalent to a specified order under NSW legislation. Previously, a person was prevented from appealing to NCAT if convicted of certain offences, including interstate or overseas offences, and subject to a specified NSW order. This amendment ensures that orders imposed interstate or overseas in respect of those offences will be captured for the purpose of preventing the person from appealing at NCAT.	Amended s 26(2)(b) and (c) regarding interstate and overseas orders
Clarifies that ability to appeal relies on cancellation of clearance under s 23 (as opposed to, for example, cancellation for not responding to a s 16 notice). This amendment aims to ensure that NCAT is not left to deal with applications where WWCC applicants and holders have had their applications refused or clearances cancelled because they have not responded to a request for information. The more appropriate course for such individuals is to reapply for a WWCC clearance if one is required.	Amended s 27(2) and 28(3)(b) regarding appeal to NCAT where clearance cancelled
The Act has been amended to make reporting of pre 3/7/1995 misconduct findings optional unless required by the Children’s Guardian or a key position holder in the organisation has knowledge of it (having knowledge will not require seeking out pre-1995 records).	Amended s 35 regarding reports of misconduct
Information relevant to whether to grant or cancel a WWCC can be exchanged between Office of the Children’s Guardian and interstate bodies that administer WWCC, in accordance with a protocol to be made by the Minister. Information received can be used in risk assessment and by NCAT.	New s 36A regarding interstate exchange of information
Where an applicant has consented and does not have any criminal record, this information can be disclosed to the Secretary of the agency on verification. This extends and formalises probity flag disclosure to prescribed government agencies, as currently done for Health and Education.	New s 45(3) regarding disclosure of absence of criminal record to Secretary of prescribed agency
New offence of making a false or misleading statement punishable by a maximum penalty of $550 which applies to statements made or information furnished after 25/10/2016.	New s 45A regarding false or misleading statements
Clarifies that reasonable person and public interest tests only apply to the NCAT and the Office of the Children’s Guardian where the application for a clearance was made on or after 2/11/2015. This ensures that the Office of the Children’s Guardian and NCAT are required to apply the same test in assessing a particular individual’s suitability to work with children.	Amended Sch 3[16] regarding application of reasonable person and public interest tests

Children and Young Persons (Care and Protection) Act 1998

Amendments	Reference
New ability to accept a written undertaking and apply for a Supreme Court order if the Children’s Guardian considers the undertaking has been breached. This provides employers the opportunity to agree to comply with the Regulation and specifically address their conduct which puts children at risk. This is in line with powers commonly available to other NSW regulators.	New s 226A regarding Enforceable written undertakings
This provides the Children’s Guardian with additional power to compel the production of information (including documents) and provides protection to the person requested to provide the information by authorising the provision without breaching privacy or confidentiality when producing the information. This is in line with powers commonly available to other NSW regulators.	New s 226B regarding Power to compel production of information
New power to enter and inspect premises, other than a dwelling, reasonably suspected to be a place where a person is employing a child in breach of Ch 13 of the Care Act. Previously, Office of the Children’s Guardian employees only had the power to enter and inspect premises where an employer already holds an employer’s authority. This new power will allow Office of the Children’s Guardian employees to enter premises where an employer should hold an authority, but does not.	New s 236A regarding entry into premises
A penalty notice can be served by an Office of the Children’s Guardian employee authorised in writing by the Children’s Guardian. Given Office of the Children’s Guardian employees most commonly detect breaches on site visits, giving them the power to take enforcement action ensures the most efficient and timely use of limited resources.	Amended s 259A regarding penalty notices

Teaching Service Act 1980

Amendments	Reference
Clarifies that a person whose clearance is cancelled due to a pending Sch 2 offence can be suspended from duty.	Amended s 93L regarding suspension of person charged with Sch 2 offence
Clarifies that a person who is dismissed after their clearance is cancelled or is refused a clearance is only entitled to be reinstated or re-employed on obtaining a clearance if they obtain that clearance within 12 months of being dismissed.	Amended s 93W regarding entitlement to reinstatement or re-employment

Education (School Administrative and Support Staff) Act 1987

Amendments	Reference
Clarifies that a person whose clearance is cancelled due to a pending Sch 2 offence can be suspended from duty.	Amended s 32D regarding suspension of person charged with Sch 2 offence
Clarifies that a person who is dismissed after their clearance is cancelled or is refused a clearance is only entitled to be reinstated or re-employed on obtaining a clearance if they obtain that clearance within 12 months of being dismissed.	Amended s 32N regarding entitlement to reinstatement or re-employment

Date of change: 1 Oct 2016