Section 36B(1) expressly captures two classes of natural person only:

1. Holders of a current working with children check clearance issued under the 2012 Act; and
2. Persons who have made a “current application” to the Children’s Guardian for such a clearance.

“Current application” is not defined in the excerpt but, read in context, means an application that has been lodged and has not yet been finally determined (granted, refused or withdrawn). Once refused, the person is no longer caught because they no longer “have made a current application”. Once granted, they move into the first class and remain there for the five-year life of the clearance (or until it is revoked).

The obligation is personal. It does not apply to employers, sponsoring organisations, or not-for-profit entities. An employer who discovers that an employee has changed address cannot fulfil the employee’s duty; the legislation is clear that “a person who holds … must notify”. This creates a compliance gap for organisations that rely on contractors or volunteers who may be unaware of, or indifferent to, their statutory duty.

Children under 18 are generally exempt from needing a clearance when volunteering, but if a minor has obtained a clearance (possible in limited circumstances) the same updating duty would appear to apply. In practice the Children’s Guardian’s approved form may contain age-based carve-outs, but the primary legislation does not.

Persons who have had a clearance refused or cancelled are outside the scope of s 36B unless they lodge a fresh application. The section therefore does not impose perpetual monitoring on barred individuals.

The core duty is notification “within 3 months of the change occurring”. Time runs from the date the change happens, not from when the person becomes aware of it. A person who moves house on 1 January must notify by 31 March. The duty is continuing; a fresh change within that window restarts the clock for the new change.

The content of the notification is limited to the five enumerated categories in s 36B(3). There is no obligation to notify changes to non-listed matters such as marital status, criminal charges that do not result in conviction, or overseas travel plans. However, regulations made under paragraph (e) could expand this list at any time.

The form requirement in s 36B(2) is not optional. Oral notification, email outside the approved system, or letters will not suffice. This centralises data capture and allows the Children’s Guardian to embed validation rules, electronic signatures and audit trails.

On the rights side, the only explicit protection is the “without reasonable excuse” defence in s 36B(4). What constitutes a reasonable excuse is left to the courts on a case-by-case basis. Likely examples grounded in the text would include serious illness or hospitalisation during the three-month period, natural disasters preventing access to the approved form, or technological failure of the Guardian’s online portal (if that is the only approved method). The defence is not a general “I forgot” carve-out; forgetfulness is unlikely to be reasonable once the three-month period has been publicised.

There is no statutory right to be reminded or to receive a periodic notice. The legislation assumes that cleared persons are sufficiently sophisticated, or have received adequate education at the time of clearance, to know they must self-monitor.

The maximum penalty is 5 penalty units. At the time of writing this remains a modest sum. The offence is strict in the sense that the prosecution need only prove the change occurred, the three-month period expired, and no notification in the approved form was received. The defendant then bears the evidential onus of raising a reasonable excuse.

Enforcement is likely to be complaint-driven rather than proactive. The Children’s Guardian does not have the resources to cross-check every cleared person’s electoral roll address or tax-file data each quarter. Instead, discrepancies may surface when an employer or organisation runs a secondary check, when the person applies for a new clearance, or during random audits. Because the penalty is low, it is improbable that the Director of Public Prosecutions would commence proceedings; enforcement is expected to rest with the Children’s Guardian issuing penalty notices (infringement notices) under the Fines Act 1996.

The Act contains no civil penalty regime, no director-liability provisions, and no power to suspend or revoke a clearance solely for breach of s 36B. A repeated failure could, however, be taken into account when the Guardian exercises its discretionary power to revoke a clearance under the principal Act on the basis that the holder is no longer a “fit and proper” person.

Section 36B sits inside the Child Protection (Working with Children) Act 2012 and must be read with its definitions and objects. The term “working with children check clearance” is defined in s 5 of the principal Act; that definition is imported without change.

The regulation-making power in s 36B(3)(e) interacts with the regulation-making power in s 67 of the principal Act. Any new prescribed information would appear in the Child Protection (Working with Children) Regulation.

Because the notification will almost invariably contain personal information, the Privacy and Personal Information Protection Act 1998 (NSW) and the Health Records and Information Privacy Act 2002 apply to the Children’s Guardian’s handling of the data. The approved form must therefore comply with privacy collection statements.

The three-month notification period is longer than many other NSW notification regimes (for example, the 7-day change-of-address obligation on drivers under the Road Transport Act 2013). This may create practitioner confusion when advising clients who hold multiple regulatory approvals.

There is no direct interaction with Commonwealth legislation such as the National Disability Insurance Scheme (Worker Screening) Rules, but a person who holds both a NSW clearance and an NDIS worker screening clearance may face overlapping but non-identical updating obligations.

The 2018 Amendment Act was the legislative vehicle for implementing recommendations of the statutory review of the 2012 Act. That review identified that the original scheme contained no mechanism to keep contact and employment details current after a clearance was granted. As the number of cleared persons grew into the hundreds of thousands, the Children’s Guardian’s register risked becoming stale. The amendment therefore represents a deliberate policy choice to shift some of the administrative burden onto the cleared individual rather than requiring the Guardian to fund continuous data-matching exercises with other agencies.

No further amendments to s 36B have been made since its insertion. The regulation-making power in subsection (3)(e) has not, on the face of the supplied text, been exercised. The provision therefore remains in its original 2018 form.

No superior-court decisions construing s 36B are referenced in the supplied text, and none are to be invented. At the time of the statutory review, stakeholder submissions expressed concern that an additional administrative burden might deter volunteers, particularly in rural and not-for-profit sectors. The light penalty of 5 penalty units and the generous three-month window appear to have been a direct response to that feedback.

The “reasonable excuse” formula has not generated reported litigation in the context of this section, but analogous language in other NSW regulatory statutes (for example, occupational licensing laws) has been read narrowly by the Local Court. Defendants who simply claim “I did not know” have generally been unsuccessful once the regulator proves that the obligation was brought to their attention at the time the clearance was issued.

Most practitioners assume that once a clearance is granted the individual’s obligations are spent for five years. Section 36B upends that assumption. The duty is continuous and survives changes of employer, address or even periods of non-work. A teacher who obtains a clearance in 2020, moves interstate in 2022 without notifying, then returns to NSW in 2024 may technically be in breach for the entire two-year period even if they are no longer working with children.

The approved-form requirement is absolute. Many clients attempt to update details by emailing the Children’s Guardian or telephoning the helpline. Those methods do not satisfy s 36B(2). The only compliant method is the precise online or paper form stipulated by the Guardian at the relevant time.

Because the penalty is only 5 penalty units, some compliance officers treat the provision as “tick-and-flick” and do not include it in organisational training. This is a false economy. A pattern of non-compliance across multiple staff can be taken into account in any discretionary decision by the Children’s Guardian to bar an organisation from certain child-related activities.

The regulation-making power in s 36B(3)(e) is a sleeper. A single new regulation could instantly expand notifiable events to include overseas travel, new mobile numbers, or changes in criminal history that fall short of a disqualifying offence. Organisations that clear hundreds of volunteers each year should maintain a watching brief on the Child Protection (Working with Children) Regulation.

Finally, the three-month clock is not suspended during periods of incapacity. A person hospitalised for four months after a serious accident must still have notified any pre-hospitalisation change within the original window. The only escape is to establish that the incapacity itself supplied a reasonable excuse for the entire period—an argument that is fact-specific and untested on these facts.

1. At clearance grant or application — Ensure every applicant receives clear written notice of the s 36B obligation, preferably by including an acknowledgement checkbox on the approved application form itself.

2. Internal register — Organisations should maintain a confidential list of cleared staff and volunteers that records the date each clearance was granted and the most recent date on which the individual confirmed their details were current. While the legislation does not require employers to police the obligation, a prudent compliance program will send annual reminders.

3. Approved form only — Bookmarks to the Children’s Guardian’s current online portal should be distributed. Staff should be instructed never to use general email or post unless the Guardian has expressly approved that channel for a particular individual.

4. Change detection — HR and volunteer coordinators should build the updating obligation into induction checklists, annual performance reviews and exit interviews. A simple question—“Have you changed your address, phone number or employer since you last updated the Children’s Guardian?”—can trigger compliance.

5. Reasonable-excuse file — If an individual claims they were unable to notify because of illness, bereavement or technological failure, the organisation should document the surrounding circumstances contemporaneously. That file may become the evidential foundation for a reasonable-excuse defence if a penalty notice is issued.

6. Revocation risk — Although s 36B itself carries only a 5-penalty-unit fine, persistent failure to update can be characterised as demonstrating a lack of responsibility. Organisations that become aware of repeated breaches by the same individual should consider whether to report the matter to the Children’s Guardian under the broader information-sharing provisions of the principal Act.

7. Contractor and volunteer management — Standard contracts and volunteer agreements should contain an express warranty that the individual will comply with all obligations under the 2012 Act, including s 36B, and will indemnify the organisation for any fines or reputational damage caused by non-compliance.

8. Audit trail — Because the approved form is electronic in most cases, individuals should be encouraged to retain the confirmation email or PDF receipt generated by the Children’s Guardian’s system. In the event of a dispute about whether notification occurred, that receipt is the best evidence.

Compliance is not technically difficult, but it is easily forgotten. The statutory review that produced the 2018 Amendment Act recognised that the original scheme had placed too much reliance on the accuracy of information supplied at a single point in time. Section 36B corrects that by distributing the accuracy burden across the entire life of the clearance. Organisations and individuals who treat the obligation as a “set and forget” matter do so at their peril, however small the headline penalty may appear.