Changes to the Working with Children Act - impact for sports organisations

Sports Law eBulletin - 24 October 2014

Summary

On 26 October 2014, amendments to the Working with Children Act 2005 (Vic) will commence.

The amendments are in response to the Victorian's Parliament's Inquiry into the handling of child abuse by religious and other non-government organisations and the Betrayal of Trust report which was published last November.

In this eBulletin, we outline the amendments and look at how they will impact sports organisations. While many of the amendments will not directly affect sporting organisations, those outlined in our eBulletin may require sports organisations to make some changes to their practices and procedures.

 

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Working with Children Check

The changes highlight that a Working with Children Check cannot assess a person's suitability to work with children. The check should only be used by your organisation as a starting point to assess a person's prior history, as the ultimate decision of a candidate's suitability lies with the organisation.

The changes also remove the three month 'grace' period for expired Working with Children Cards. Upon expiration of a card, an individual must now immediately cease all child-related work.

Coaches and tutors

The current legislation provides that coaches or providers of tuition services who perform services of any kind for children must hold a working with children card. The amendments will change this wording to coaches or tuition services specifically for children.

The Victorian Department of Justice states that these changes "clarify that workers in coaching and tuition services only require a Working with Children Check if they are providing services specifically for children, and not for coaching or tuition that is open to everyone including children". Where your organisation provides or co-ordinates coaching services that are specifically for children, you should ensure that coaches have obtained a Working with Children Check.

New definition of child-related work

The amendments to the Working with Children Act 2005 (Vic) incorporate a new definition of "child-related work" The new definition describes "child-related work" as being where contact with children is direct, unsupervised and part of a person's duties.

Under the new definition:

  • direct supervision relates to the supervision of contact with a child, rather than the general supervision of a person's work. Supervision is expected to be immediate and personal;
  • direct contact no longer requires a person to be "within eyeshot" of a child, but instead requires the person to talk face-to-face or be physically close enough to interact with a child; and
  • contact with a child must be part of a worker's duties and not simply incidental to the work they are completing.

Changes to the exemptions

There have been three changes made to the exemptions under the Act. These are for interstate visitors, accredited drivers and negative notice holders.

Interstate visitors who hold a non-Victorian Working with Children Check from within Australia may do child related work for 30 days a year over several events or occasions. Interstate visitors who do not hold a Working with Children Check from within Australia may also do child related work for 30 days within a year but only for one event or occasion.

People who have been given a negative notice (due to failing a Working with Children Check) are not permitted to rely on any exemptions in order to work with children.

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Paramountcy principle

The Act will include a new paramountcy principle where the protection of children will be the "paramount consideration" when determining whether or not to issue someone with a Working with Children Card.

Screening and assessment process

The new changes will mean that applicants who are being assessed for their Working with Children Check must not work with children during their screening period, if their criminal record contains any of the offences listed in Schedule 3 of the Act (which includes sex offences, drug offences and other similar offences).

New classification system for offences

A new three tier classification system for offences and professional conduct will be introduced. The new system expands on the current system and introduces new offences in different categories.

What does this mean for sports organisations?

It is important to review your current practices in relation to the protection of children.

Understanding your obligations under the Working with Children Act should be one part of your overall strategy, which should also include a Child Welfare Policy, Member Protection Policy and appropriate education and dissemination of information.

Authors
Chloe Parker, Graduate
Amelia Lynch, Senior Associate

Further information

All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.