Child Protection (Working with Children) Act 2012

The Act casts a wide net. “Worker” is defined in s 5(1) to include employees, self-employed persons, contractors, subcontractors, volunteers, students on placement (other than school work experience), and religious leaders or officers. “Employer” is equally broad and includes labour-hire agencies and persons who engage volunteers (s 5(1)).

Primary duty-bearers are therefore any person who engages in, or seeks to engage in, child-related work. This covers teachers, childcare workers, sports coaches, youth group leaders, religious instructors, hospital staff on children’s wards, disability support workers, foster carers, and transport drivers for children. Because s 6(2) allows regulations to declare additional fields, the net can be widened by subordinate legislation without further parliamentary intervention.

Employers (including not-for-profit organisations and placement agencies) are directly regulated by ss 9, 9A, 9B and 9AA. Governing bodies of organisations must ensure that persons appointed permanently to “key positions” (chief executive, principal officer of a designated agency or accredited adoption service provider, or any prescribed position) hold an appropriate clearance (s 9B(2)).

A distinct class of “notifiable persons” (s 5(1)) must be informed of decisions: current or proposed employers, designated agencies for authorised carers, approved providers of family day care services, relevant decision-makers for adoptions or guardianships, and any other prescribed person. These notifiable persons receive notice of refusals, cancellations, interim bars, withdrawals and terminations.

Adults who reside on the same property as an authorised carer or where a family day care service is provided are caught by s 10 unless they are already exempt. Prospective adoptive parents and adult residents on the same property must obtain a volunteer clearance (s 11). Parallel obligations apply to prospective guardians (s 11A). Former out-of-home care residents who turn 18 may be granted a continuing residence approval instead of a clearance (s 11D).

The Children’s Guardian is both regulator and decision-maker. Police, reporting bodies (licensing authorities, professional bodies, prescribed employers), animal welfare organisations, and interstate screening agencies all have notification or information-sharing obligations. The NDIS Screening Agency shares information for dual clearance holders (s 36AA).

Candidates for State parliamentary elections may apply for a non-volunteer clearance even if not yet engaged in child-related work (s 11C). Licensing authorities that issue licences declared by regulation to be “relevant licences” must verify clearances before issuing or renewing them (s 9AA).

Exemptions may be granted by regulation (ss 8(3)(b), 9(2)(b), 10(7), 11(2)(c)). Parents caring for their own child are exempt from the employer verification obligation (s 9A(9)(a)). The regulations have created numerous class-based exemptions, but the Act itself contains no blanket carve-outs for particular professions.

Finally, the 2025 amendments introduced the concept of a “relevant person” subject to a mutual recognition negative notice from another jurisdiction (s 25A). Such persons are automatically barred from obtaining or holding a NSW clearance and must notify the Guardian.

Duties

• Workers: must not engage in child-related work without a clearance or current application (s 8(1)); must not work while subject to an interim bar (s 8(2)); must notify changes of personal details within three months (s 36B); must disclose overseas prescribed convictions within 10 business days (s 36C); must provide further information when requested (s 16).
• Employers and governing bodies: must not employ or appoint without verifying a clearance or current application (ss 9, 9A, 9B); must keep records for seven years (ss 9A(5), 9B(4)); licensing authorities have parallel duties (s 9AA).
• Responsible agencies for carers, family day care and adoptions: must verify adult residents (s 11B) and treat the resident as their “employee” for most purposes (s 10(6)).
• Reporting bodies: must notify the Guardian of findings of sexual misconduct or serious physical assault against children (s 35(1)).
• Applicants and holders: must authorise criminal record checks and other inquiries (s 13(3)); must notify the Guardian of mutual recognition negative notices “as soon as practicable” (s 25A(2)).
• Children’s Guardian: must conduct risk assessments when Schedule 1 matters arise (s 15(1)), apply the reasonable-person and public-interest tests, maintain the register (s 25), give detailed reasons for reviewable decisions (ss 30A, 30E), and may issue assessment and enforcement notices (ss 31, 36).

Rights

• Applicants: right to be given an application number (s 13(5)), to make submissions before a proposed refusal (s 19), to internal review of refusals, cancellations and long-term interim bars (s 28), to disqualification reassessment if disqualified under s 18(1) (s 30B), and to be notified of notifiable persons when decisions are made.
• Holders: right to surrender a clearance with consent (s 24), to apply for a new clearance up to three months before expiry (s 22(2)), and to have the Guardian consider expert advisory panel advice (s 42A).
• All persons: protection from civil liability for good-faith actions (s 43), evidentiary certificates (s 44), and the ability to rely on defences of honest ignorance or regulatory exemption (ss 8(3), 9(2), 10(4)–(5)).
• Affected children and the public: the paramountcy principle in s 4 gives them an indirect right to have safety prioritised over adult interests in every discretionary decision.

The Act deliberately limits merits review. Internal review is the only merits pathway; there is no further external merits review once the internal reviewer has decided. The presumption against disqualified persons in a reassessment (s 30D(5)) significantly tilts the balance.

The Act creates both criminal offences and administrative sanctions.

Criminal penalties are graduated. A worker who engages in child-related work without a clearance or while barred faces 100 penalty units or two years’ imprisonment or both (s 8(1) and (2)). Employers and corporations face 100 penalty units (or 50 for individuals) for failing to verify or record clearances (ss 9(1), 9A(6), 9AA(6), 9B(2)). Failure to comply with an enforcement notice issued by the Guardian attracts only 5 penalty units (s 31(8)). Unauthorised disclosure or dishonest collection of information carries 50 penalty units or six months’ imprisonment (s 45). Making false or misleading statements in an application attracts 5 penalty units (s 45A). Corporations can be vicariously liable for directors and managers who knowingly authorise contraventions (s 50), but only for Part 2 offences.

Administrative tools are more significant in practice. The Guardian may:

• impose an interim bar at any time (s 17);
• terminate an application for incomplete or duplicate information (s 13AB) or failure to provide further information (s 16(2));
• refuse, cancel or refuse to extend a clearance (ss 18, 23);
• refuse to consent to withdrawal or surrender if risk exists (ss 13AA(2), 24(2));
• issue assessment notices and enforcement notices with escalating consequences (s 31);
• cancel a continuing residence approval (s 11D(4)).

The working with children register itself acts as an enforcement mechanism: employers who rely on inaccurate register data may still commit an offence unless they have verified in accordance with s 9A(3). Penalty notices under the Fines Act 1996 are available for prescribed offences (s 50A).

Enforcement is supported by wide information-gathering powers. The Guardian can compel statements and documents from any person, including government agencies (s 31), and can audit statutory declarations made by exempt workers (s 40A). Police, reporting bodies and animal welfare bodies have express authority to disclose otherwise protected information (ss 33, 33A, 34).

Breach of a prohibition on employment does not automatically invalidate the contract of employment, but s 47(3) prevents any court or tribunal from ordering reinstatement or damages where the prohibition is engaged. The Act therefore operates as a hard regulatory barrier rather than a mere licensing inconvenience.

The Act is designed to sit atop a web of child-protection and employment legislation. Section 3 note expressly refers to the Children’s Guardian Act 2019, whose s 128 and Part 6 confer additional functions on the Guardian in relation to child safety. The Children and Young Persons (Care and Protection) Act 1998 supplies definitions of “authorised carer”, “carer applicant”, “prospective guardian” and “out-of-home care” and is the source of the reportable conduct regime that feeds into Schedule 1 triggers via s 35 and the Children’s Guardian Act 2019 Part 4.

Criminal history is drawn from the Crimes Act 1900, Criminal Records Act 1991 and Commonwealth Criminal Code. Section 5C expressly overrides the spent-convictions regime in the Criminal Records Act 1991 and s 579 of the Crimes Act 1900. Schedule 1 and 2 lists cross-reference specific sections of the Crimes Act 1900, Prevention of Cruelty to Animals Act 1979, Drug Misuse and Trafficking Act 1985, Crimes (Domestic and Personal Violence) Act 2007 and Commonwealth legislation. The Child Protection (Offenders Registration) Act 2000 is used as a catch-all in Schedule 2(1)(ac).

Employment law is affected by s 47: the Industrial Relations Commission and other tribunals must treat a prohibition under this Act as prevailing and may not order reinstatement or damages that would breach it. The Government Information (Public Access) Act 2009 is modified to give persons subject to Schedule 1 findings a right of access without fees (s 46).

The National Disability Insurance Scheme (Worker Checks) Act 2018 is aligned with this Act through s 22(3) (flexible expiry to synchronise clearances) and s 36AA (information sharing for dual-purpose clearances). The Adoption Act 2000 and Children (Education and Care Services) National Law (NSW) supply further definitions and trigger additional clearance obligations (ss 5(1), 6(3), 11).

From 2025 the Act incorporates mutual recognition principles. A negative notice in another jurisdiction automatically terminates or prevents a NSW clearance (s 25A), mirroring schemes in other States. Information sharing with interstate screening agencies (s 36A) and the NDIS Screening Agency implements a national approach while preserving NSW’s stricter risk test.

Privacy and confidentiality are overridden where necessary. Sections 31–36AA authorise disclosure that would otherwise breach the Privacy and Personal Information Protection Act 1998 or health privacy legislation. Section 32 specifically authorises the Director of Public Prosecutions to disclose material beyond what is strictly required by an assessment notice. Conversely, unauthorised disclosure remains an offence (s 45).

The Interpretation Act 1987 applies to undefined terms (s 5(1) note). The paramountcy principle in s 4 must be read consistently with identical provisions in the Children and Young Persons (Care and Protection) Act 1998 and Children’s Guardian Act 2019.

The most significant recent overhaul occurred via the Child Protection (Working with Children) and Other Legislation Amendment Act 2025. That Act replaced the former Administrative Decisions Tribunal review pathway with a two-stage internal review and disqualification reassessment model (new Part 4). The changes were driven by a desire to reduce tribunal backlog, to place the onus more clearly on disqualified persons (s 30D(5)), and to introduce a statutory “reasonable person” and public-interest test at every stage (ss 15(4A), 30(4), 30D(6)). The 2025 Act also inserted s 25A to give automatic effect to interstate negative notices, reflecting a national push toward mutual recognition while preserving NSW’s ability to impose its own risk standard. A new review clause (s 53) requires the Minister to table a report on the 2025 amendments within 30 months.

Earlier amendments expanded scope. The Child Protection Legislation Amendment Act 2015 introduced employer verification obligations (s 9A), governing-body duties (s 9B), the “real and appreciable risk” definition (s 5B), the continuing residence approval regime (s 11D via later amendment), and the expert advisory panel (s 42A). The Child Protection (Working with Children) Amendment Act 2018 strengthened information sharing, aligned NDIS worker screening, and inserted the animal-cruelty notification power (s 33A, later expanded). The Stronger Communities Legislation Amendment (Child Protection) Act 2022 added duties to disclose overseas offences (s 36C) and created the National Reference System database (s 36D).

These changes reflect recurring themes: (1) closing loopholes that allowed high-risk persons to remain in or enter child-related roles; (2) responding to royal commissions and inquiries that criticised fragmented screening; (3) aligning with national schemes while retaining NSW’s stricter risk threshold; and (4) shifting from purely administrative decision-making to a more transparent, reasons-based internal review model that still limits external merits review.

Because the Act channels most disputes through internal review rather than the former ADT/NCAT merits review, reported case law is relatively sparse. Nevertheless, several themes emerge from judicial decisions that have considered the legislation.

The paramountcy principle in s 4 has been held to trump private interests even where an applicant’s livelihood is at stake. Courts have repeatedly emphasised that the Act is protective, not punitive, and that the Guardian is not required to prove misconduct on the balance of probabilities; a “real and appreciable risk” can arise from patterns, context or untested allegations (see the reasoning in cases interpreting the predecessor Commission for Children and Young People Act 1998 provisions that were carried forward).

The “reasonable person” test introduced in 2015 has generated controversy. Critics argue it is circular: the Guardian must ask whether a reasonable parent would allow unsupervised contact, yet the very existence of a Schedule 1 trigger suggests many reasonable parents would hesitate. The Guardian’s practice of treating any non-trivial Schedule 1 matter as presumptively disqualifying unless rebutted has been challenged, but the internal-review presumption in s 30D(5) now makes successful rebuttal statistically rare.

Interim bars have been challenged on procedural fairness grounds. Because an interim bar can last up to 12 months (s 17(4)(c)) and prevents both work and, in some cases, residence with one’s own children in out-of-home care placements, applicants have argued that the Guardian must disclose the substance of allegations before imposing the bar. The Act itself requires only post-decision notice to the person and notifiable persons (s 17(3)), and courts have generally held that the protective purpose justifies departure from full pre-decision hearing rights.

The interaction with spent convictions legislation continues to provoke debate. Section 5C and s 48 expressly override the Criminal Records Act 1991. In practice this means a 30-year-old spent conviction for an offence that would now be classified as historic child sexual abuse can still trigger disqualification. Challenges based on proportionality or human rights have been unsuccessful because the Act contains no general proportionality test once a Schedule 2 offence is engaged.

The 2025 shift from NCAT merits review to internal review only has been criticised by advocacy groups as reducing accountability. The Government responded that the detailed reasons requirement (ss 30A, 30E) and the senior-officer rule (s 30(5)) provide sufficient internal safeguards, and that the previous system produced lengthy delays that themselves placed children at risk.

Controversies have also arisen around Schedule 1 clause 2 findings of misconduct. Reporting bodies sometimes notify the Guardian of historical allegations that were never tested in court. The Guardian’s risk assessment must then weigh untested evidence. The Act gives the Guardian power to request further information (s 16) and to obtain documents from any person (s 31), but does not compel the original complainant to participate.

Finally, the breadth of “reside on a property” (s 5A) has caused practical difficulties for large households or caravan parks where family day care occurs. Regulations have been used to carve out transient residents, but the default position remains that any adult who sleeps there regularly must be cleared or the carer’s approval is at risk.

Most practitioners miss three critical features.

First, the criminal history definition in s 5C is extraordinarily wide. It captures charges that were dismissed, withdrawn or resulted in a non-conviction finding, spent convictions, quashed convictions, and even findings under the now-repealed s 579 of the Crimes Act 1900. A person who received a section 10 dismissal for a minor assault on a child 25 years ago remains subject to an assessment requirement for life. Many applicants discover only at the risk-assessment stage that long-forgotten youth matters have been retained.

Second, the “reasonable person” test in s 15(4A) is not a mechanical checklist. The Guardian routinely asks: “Would a reasonable parent allow their child to have unsupervised contact with this person while the person is working with children?” The test therefore incorporates the very employment context that triggered the assessment. An applicant who argues “it was a one-off, 20 years ago, I have reformed” must still persuade the Guardian that a reasonable parent would be comfortable with unsupervised contact in the workplace. The public-interest limb adds a second, independent hurdle that can bar even low-risk applicants if, for example, the nature of the work involves particularly vulnerable children.

Third, the notifiable-person regime creates hidden reputational risk. When the Guardian refuses an application or cancels a clearance, every notifiable person (current employer, proposed employer, designated agency, approved provider, adoption decision-maker) is automatically informed. Even if the person ultimately succeeds on internal review, the initial notification cannot be undone. In small industries (e.g. out-of-home care or private tutoring) this can end a career before the review is completed. There is no statutory mechanism to require notifiable persons to treat the information confidentially.

Another trap is the interaction between s 8(1A) and employer policies. An employer or professional body may lawfully require a clearance before any work begins, even though the Act itself permits a current application to suffice. Many organisations have zero-tolerance policies that exceed the statutory minimum, exposing workers to contractual termination even if they would ultimately obtain a clearance.

The continuing residence approval (s 11D) is often overlooked. Young people who age out of foster care can obtain a five-year approval instead of a clearance, but only if the Guardian is satisfied risks have been “sufficiently mitigated”. The approval can be cancelled unilaterally if circumstances change. Carers therefore face ongoing uncertainty about whether their 19-year-old former foster child can remain in the household.

Finally, the 2025 mutual recognition rule in s 25A operates automatically and retrospectively for the purpose of termination. A person who obtained a NSW clearance years after an interstate bar may suddenly find that clearance cancelled without any fresh NSW risk assessment. The only remedy is to wait until the interstate negative notice expires or to rely on prescribed regulatory exceptions that have not yet been made.

Compliance begins with a robust mapping exercise. Organisations should categorise every role against s 6 and the regulations to determine which positions are child-related. For roles that fall inside the definition, a written policy requiring sight of the working with children number, verification against the register on the date of engagement, and re-verification at least every five years (or earlier if the clearance expires) is mandatory.

Employers must build the verification step into recruitment. The preferred method is to require the applicant to provide their working with children number and date of birth, then log into the Guardian’s online verification portal. The portal returns real-time data on status, expiry, and any interim bar. A screenshot or system-generated report should be retained for seven years (s 9A(5)). Automatic calendar reminders keyed to the expiry date satisfy the five-working-day update obligation in s 9A(4).

For organisations that engage volunteers or contractors, written agreements should contain warranties that the individual holds a current clearance and will notify any change within three business days. The organisation should still perform its own verification; reliance on the warranty alone is insufficient.

Designated agencies, approved providers and adoption decision-makers must integrate s 10–11B checks into their carer and guardianship approval processes. This includes obtaining consent from all adult residents, entering their details on the register, and re-verifying within five working days of each clearance expiry. The continuing residence approval pathway should be explained to young people turning 18 in care so they can apply before their birthday.

Risk management for individuals is equally important. Anyone with a criminal history should obtain an early “check” of their own status by making a volunteer application even if not currently seeking work. This flushes out any Schedule 1 or 2 issues and allows time to gather character references, psychological reports and evidence of rehabilitation before an employer deadline arises. Because the disqualification reassessment pathway now contains an explicit presumption against the applicant (s 30D(5)), early legal advice is essential for anyone with a Schedule 2 conviction.

Organisations should maintain a central register of clearances that records the verification date, working with children number, expiry date and the name of the verifying officer. This register can be audited by the Guardian under s 39. Regular internal audits (at least annually) against the Guardian’s published compliance guidelines reduce the risk of corporate penalty.

Training is another compliance pillar. All managers with recruitment responsibility must understand the difference between a “current application” (which satisfies the Act but may not satisfy organisational policy) and a granted clearance. Staff who supervise child-related workers should be trained to recognise and report conduct that could trigger a Schedule 1 notification.

For not-for-profits and religious bodies, the governing body must personally satisfy itself that key office holders are cleared (s 9B). Minutes of governing body meetings should record the verification steps taken. Failure to keep the seven-year record required by s 9B(4) is itself an offence.

Finally, organisations should have a rapid-response protocol for interim bars and cancellations. Because notifiable persons are informed automatically, an employer who receives notice that an employee’s clearance has been cancelled must immediately remove the employee from child-related duties. Continuing to employ the person after notice is knowledge for the purposes of s 9(1) and exposes the employer to strict liability.

By treating the Act as a living risk-management system rather than a one-off paperwork exercise, organisations both meet their legal obligations and demonstrably put the safety of children first—the paramount consideration that animates every section.