New Exemption to Working with Children Checks in NSW

Regulations introduced in NSW have provided a new exemption to working with children checks, permitting persons to work with children while their application is pending where certain requirements are met.

Child Safety (Prohibited Persons) (Exemption) Variation Regulations 2020 No. 36 (SA)

The Child Safety (Prohibited Persons) (Exemption) Variation Regulations 2020 No. 36 (SA) (the Variation Regulations) commenced on 2 April 2020 and have amended the Child Safety (Prohibited Persons) Regulations 2019 (SA) (the Regulations).

Exemption for persons with pending applications

The Variation Regulations insert new regulation 27 into the Regulations, which prescribes a further exemption to the requirement that a person have a working with children check (WWCC) conducted before they work with children, where certain requirements are met.

This means that persons who have made an application for a WWCC may proceed to work with children while their application is pending if:

  • the person is not a “prohibited person”;
  • the person is not presumed to pose an unacceptable risk to children; and
  • the person is, while working with children pursuant to the exemption, supervised by a person in relation to whom a working with children check has been conducted within the preceding 5 years.

The meaning of prohibited person is set out in detail in section 15 of the Child Safety (Prohibited Persons) Act 2016 (SA) (the Act) and includes persons who have been convicted of a “prescribed offence” as an adult, such as murder or manslaughter where the victim is a child and a long list of many other serious offences. For the full list of prescribed offences see section 5 in conjunction with Regulation 5 of the Regulations.

Section 26A of the Act specifies when a person will be presumed to pose an unacceptable risk to children (i.e. where the person has been found guilty of a “presumptive disqualification offence” such as criminal neglect or robbery where the victim is a child – the full list is set out under regulation 15A of the Regulations).

Essentially, a prohibited person is prohibited from working with children, while a person presumed to pose an unacceptable risk to children will be determined to be a prohibited person by the central assessment unit (the CAU) under the Act, unless the person can demonstrate to the CAU that the circumstances of the offence were such that they do not pose an unacceptable risk to children. The new exemption therefore enables persons who do not pose an obvious risk to children to commence their work while their application to the CAU is pending, given they are properly supervised.

Accordingly, employees or volunteers who work within the scope of the exemption are not in breach of section 16 of the Act (Working with children without current working with children check prohibited). Likewise, employers who engage persons within the scope of the exemption will not do so in breach of section 17 of the Act (Steps employers must take before employing person in prescribed position).

Conclusion

Subscribers should ensure that relevant staff are aware of the new exemption to the working with children laws for pending applications. Please see the SA – Working with Children topic for more information.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au

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