New Legislative Changes to the Child Wellbeing and Safety Act 2005 (Vic) Commencing from 1 July 2024

New Legislative Changes to the Child Wellbeing and Safety Act 2005 (Vic) Commencing from 1 July 2024

What are the changes? 

From 1 July 2024, amendments to the Child Wellbeing and Safety Act 2005 (Vic) (Act) will come into force, expanding the definition of an ‘employee’ under the Reportable Conduct Scheme (Scheme).  This legislative change is intended to align with and be consistent with the intended scope of the Scheme.

In addition, from 1 July 2024, significant amendments to the Act will come into force, expanding the enforcement and compliance powers of the Commission for Children and Young People (CCYP) and police. The new powers will allow both the CCYP and police to commence proceedings for an offence under the Scheme and introduce additional monitoring and compliance powers for the CCYP to ensure heads of entities comply with their legal obligations under the Scheme.

The Expanded Definitions of ‘Employees’ and ‘Workers

From 1 July 2024, the definition of ‘employees’ under the Act will be expanded to include any person over the age of 18 who is indirectly engaged with an organisation via a third party by working or volunteering as a labour hire worker, a secondee, a director of a company or an individual business owner, regardless of whether their work relates to children. ‘Employees’ under the legislative amendments are defined as: 

·         Labour hire worker: an employee or volunteer who an external provider employs to perform work for an organisation under the supervision, direction, or control of the organisation.  Examples of a labour hire workers can include relief teachers, support workers, agency workers including gardeners and maintenance staff, and higher education students completing a workplace student placement.

·         Secondees: similar to labour hire workers, secondees are employed by an external provider to work at an organisation as part of a temporary secondment, under the supervision, direction or control of the organisation.

·         Directors of a company: any individual who, by virtue of their role, performs work for an organisation which falls under the Scheme, regardless of whether that organisation or individual provides direct services to children.

·         Individual business owners: any individual or sole trader who owns an organisation falling under the Scheme with the care, supervision, or authority over children, where the individual or sole trader employs or contracts workers and volunteers.

In addition, the Act has expanded the definition of ‘worker’, which is now defined as any individual who has an arrangement with an organisation to perform work and the individual is being paid by the organisation, directly or indirectly, for their performance of that work.  A worker arrangement can also include circumstances where a contract has been entered into between an individual and an organisation or where an individual is under a training contract with an organisation.  The definition of a worker continues to include volunteers where an individual has an agreement with an organisation to engage in voluntary work for the organisation.

New Enforcement and Compliance Powers

From 1 July 2024, the Act will also be amended to introduce additional enforcement and compliance powers which gives power to the CCYP and police to bring a proceeding for an offence under Part 5A of the Act.  Part 5A of the Act is in relation to reporting and investigating reportable allegations under the Scheme. 

The Act will provide the CCYP with additional powers and functions to monitor and enforce compliance and ensure that heads of entities are compliant with their legal obligations to notify the CCYP of reportable allegations.  Under this newly created Part 5B of the Act, the CCYP will be able to appoint any person to be a Reportable Conduct Authorised Officer (Officer).  The Officer and the CCYP will have several powers and functions including:

·         Entering and inspecting any premises, by notice or with a warrant, where they reasonably believe that the premises exercises care, supervision, or authority over children for the purpose of monitoring compliance with the Scheme. 

·         Interviewing a child.

·         Searching the premises, inspecting and examining documents, making inquiries, observing activities, taking photos and copying documents, operating and securing equipment, requesting information, assistance or compliance and, seizing documents and equipment.

·         Issuing a written notice for a head of entity to produce documents or information if they reasonably believe the head of entity is not complying with their obligations.

·         Issuing a notice to comply with section 16M of the Act on a head of entity.

·         Seeking civil penalties, infringement notices, or commencing criminal proceedings.

Organisations should be aware that should an Officer attend an organisation for the purpose of monitoring or enforcing compliance, all employees and volunteers must comply with the requirements set out by the Officer unless there is a reasonable excuse to not comply with the requirements.

Under the new amendments, the statute of limitations to commence proceedings against a head of entity who has failed to comply with their legal obligations to make a notification about a reportable allegation is also being extended from 12 months to three years.

Organisational Obligations

Organisations need to be aware that despite the expansion of the definition of employees and workers under the Act, their responsibilities under the Scheme do not change.  However, a head of entity needs to be mindful that from 1 July 2024, their responsibilities will be extended to include not only individuals employed or volunteering for an organisation, but also to those employed or volunteering through an external provider to perform work for an organisation, as well as directors and sole traders.

The changes also do not create additional responsibilities for employees and volunteers, but employees and volunteers must be mindful that if they fall under the expanded category of an employee or worker when they previously were excluded from the legislative definitions, that their conduct will now be subject to the Scheme and reportable allegations can be made against them.

In relation to the additional monitoring and compliance powers being introduced, a head of entity must ensure they continue to comply with their legal obligations and notify the CCYP when a reportable allegation has been made.

How Should Organisations Prepare for These Changes?

Organisations can start preparing for these changes by reviewing their existing policies, procedures, and practices to ensure that they are compliant and consistent with their legislative obligations.  The head of entity should review contractual arrangements with external providers to ensure these arrangements allow them to continue to identify and report allegations of child abuse as per their legal obligations under the Scheme.  Organisations will also need to consider how they will conduct investigations in collaboration with external providers, where the subject of an allegation is employed by an external provider.

Organisations should also provide updated training and advice to employees and volunteers so that they are aware of their legal and moral obligations under the Scheme.  Organisations should ensure that any updated policies, procedures, and practices are made readily available to employees and volunteers, as well as services users so that they are aware of how the changes may impact them.

How can Safe Space Legal Help?

The team at Safe Space Legal have extensive child safety and safeguarding experience.  We have worked with many organisations across Australia to ensure they are meeting their legal obligations when working with children and frequently conduct independent child safety investigations.  Safe Space Legal provides the following services to ensure organisations meet their legal obligations:

·         Drafting legally sound child safety policies, procedures, and codes of conduct.

·         Supporting organisations to recognise gaps in policy and/or practice which put it at risk of non-compliance with legal obligations through thorough root cause and gap analyses.

·         Delivering child safety training to ensure organisations are aware of their legal obligations and duty of care obligations.

·         Conducting child safety and safeguarding investigations which are compliant with relevant state and territory Reportable Conduct Schemes.

·         Ensuring that complaints handling and reporting processes are compliant with legal obligations and relevant Reportable Conduct Schemes.

·         Assistance and support to respond to allegations of child abuse including notifications under Reportable Conduct Schemes.

·         Provide sound legal advice on risk mitigation.

Contact [email protected] or call 1300 894 460 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.

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