Child Protection (Working with Children) Regulation 2013

The Regulation’s reach is deliberately wide. Primary obligors are any “worker” (defined by reference to the Act) engaged in any of the child-related roles or work described in Part 2. This includes employees, volunteers, self-employed contractors, students on placement (expressly excluded by cl 6(4)), au pairs providing child care (cl 9(3)), coaches and team managers (cl 7(2)), school cleaners (cl 16A), governing body members (cl 16B), principal officers (cl 16C), heads of child safe organisations (cl 16CA) and non-contact counsellors or mentors (cl 16D).

Employers (including government agencies, non-government organisations, clubs, schools, health services, religious bodies and commercial child-care providers) are equally affected because Act s 9 prohibits them from engaging a worker in child-related work unless the worker holds a clearance or is exempt. Designated agencies, approved providers of education and care services, and managers of those services are captured both as employers and through prescribed roles for their principal officers and governing bodies.

A distinct class comprises “adult persons who reside at the home of an authorised carer”. Clauses 22–22D and the transitional provisions in Schedule 1 (cll 1, 2, 7) impose or relieve clearance obligations on every adult household member of a foster or kinship carer, with nuanced rules depending on whether out-of-home care is provided at that address, whether the carer’s authorisation is suspended, and whether a clearance has been cancelled or refused (48-hour grace period under cl 22C).

Parents and close relatives (defined expansively in cl 3(1) to include extended Aboriginal and Torres Strait Islander kin) are affected when they volunteer at schools or in activities in which their child participates (cl 20(1)(e)–(f)), but lose the exemption if they provide intimate personal care, formal mentoring or attend overnight camps (cl 20(2)).

Interstate visitors holding equivalent clearances are relieved for up to 30 days per calendar year (cl 20(1)(n)); shorter one-off event visitors are exempt without a check (cl 20(1)(m),(o)). Health practitioners visiting from outside NSW for no more than five days in three months are exempt (cl 20(1)(l)). Police officers acting in that capacity are wholly exempt (cl 20(1)(h)).

Reporting bodies (Act s 35(4) plus the Scout Association under cl 25) must notify the Children’s Guardian of relevant findings and retain records for 30 years (cl 24). The NSW Education Standards Authority is a notifiable person for accredited teachers (cl 3A).

Finally, the Children’s Guardian itself is both regulator and decision-maker; the Regulation prescribes the precise information it may release (cl 23), the forms it must use, and the matters it must consider on disqualification reassessment (cl 30).

In short, the Regulation affects every individual or organisation that operates in the child-related sectors it enumerates, every household linked to authorised out-of-home carers, every reporting body, and the regulator itself.

Duties fall heaviest on employers and workers in child-related roles. Under the Act (as particularised by this Regulation) an employer must not engage a worker unless the worker holds a clearance or is exempt (Act s 9; exemptions mapped in cl 20). Workers must obtain a clearance before commencing child-related work unless exempt. Both must comply with the identity-verification and fee requirements in cll 17–18A.

Reporting bodies owe a strict duty under cl 24 to notify findings in the approved online form, supply underlying records on request, retain them for 30 years (or transfer them to the Children’s Guardian on cessation of existence), and notify the affected worker of any notification, amendment or withdrawal. Amendments or withdrawals must be accompanied by a statutory declaration if based on error (cl 24(6)). Breach attracts 20 penalty units (cl 24(8)).

The Children’s Guardian must issue application and clearance numbers (cl 19), may release only the narrowly prescribed register information to employers (cl 23(1)), and must consider “significant changes in any relevant circumstances” since a disqualifying offence when conducting a disqualification reassessment (cl 30). It may direct that the spent cl 22E exemption not apply to a pre-1995 finding.

Rights are largely expressed as exemptions. Workers meeting any of the 15 limbs of cl 20(1) are exempt from the clearance requirement and their employers are exempt from Act s 9 (though not from the offence of allowing an uncleared person to engage in child-related work under Act s 7). Parents and close relatives enjoy a volunteer exemption that is wider than the general public’s but is lost in high-risk settings (cl 20(2)). Authorised carers and their household members benefit from targeted household exemptions (cll 22–22D) and from the staged transitional relief in Schedule 1.

Applicants have the right to alternative identity and payment pathways when standard Service NSW attendance is impossible (cl 18A) and to online identity verification on invitation (cl 18(2)). Volunteers enjoy a nil application fee (cl 17(1)(a)). Interstate visitors holding equivalent clearances gain a 30-day annual exemption (cl 20(1)(n)).

The regulation also creates procedural rights: reporting bodies may amend or withdraw notifications on defined grounds (cl 24(5)), and the affected worker must be given written notice of any such step (cl 24(7)).

The Regulation itself creates only one direct offence: contravention by a reporting body of any requirement in cl 24 carries a maximum of 20 penalty units (cl 24(8)). All other sanctions flow from the Act. Schedule 2 nevertheless prescribes penalty-notice amounts for a suite of Act offences: $2,750 for an individual breaching Act ss 8(1), 8(2), 9(1), 9B(2), 9B(4) or 40(2); $1,100 for a corporation under s 9(1), 9B(2) or 9B(4); lower amounts for administrative breaches such as ss 9A(6), 9AA(6) and 45A.

Enforcement is therefore a hybrid of penalty notices issued under the Act s 50A and prosecution for the underlying offences. The Children’s Guardian’s power to cancel a clearance or impose an interim bar (Act ss 23–24) remains the principal administrative enforcement tool, with the Regulation supplying the definitional triggers (e.g. engagement in a newly prescribed role under cll 16A–16CA) that can activate those powers.

The 48-hour grace period in cl 22C and the short-term emergency exemption in cl 21 operate as statutory defences to otherwise applicable offences under Act s 10. The spent cl 22E provided a time-limited exemption from historical reporting obligations.

The Regulation is expressly subordinate to the Child Protection (Working with Children) Act 2012, which it defines as “the Act” (cl 3(1)). It also cross-references the Children’s Guardian Act 2019 for the meanings of “entity”, “specialised substitute residential care” and “head of a child safe organisation” (cll 3(1), 16C(2), 16CA(2)). The Interpretation Act 1987 applies to undefined terms (cl 3(1) note).

Sector-specific statutes are incorporated by reference: the Teacher Accreditation Act 2004 for notifiable-person status (cl 3A), the Health Practitioner Regulation National Law (NSW) and various health Acts for the definition of health practitioner and hospital (cl 6(5)), the Children and Young Persons (Care and Protection) Act 1998 for authorised carers and out-of-home care (cll 17(3), 22, Schedule 1 cl 1), the Adoption Act 2000 for accredited adoption service providers (cl 16B(c)), the Children (Detention Centres) Act 1987 and Crimes (Administration of Sentences) Act 1999 for justice-centre terminology (cl 12(4)), the Private Health Facilities Act 2007, Mental Health Act 2007 and Health Services Act 1997 for hospital definitions (cl 6(5)), and the Public Health (Tobacco) Act 2008 for inspector roles (cl 16AA).

Commonwealth legislation appears in cl 20(1)(k) via the Aged Care Act 1997 (Cth) Accountability Principles. The Accountability Principles 1998 (Cth) police-check requirement is adopted as an alternative compliance pathway for certain home-care workers.

Transitional provisions in Schedule 1 interact with Schedule 3 to the Act, modifying or displacing its staged-application rules (cll 2(9), 2A(3), 7(1)). The 2025 amendments (cll 28–30) engage the internal-review and disqualification-reassessment provisions in Part 4 of the Act.

Information-sharing authorisations in cl 27 supplement the Act’s privacy provisions by permitting disclosure to six named departments and authorities. Clause 24’s record-retention and transfer rules interface with any applicable records legislation governing the reporting bodies.

The Regulation has been amended more than a dozen times since 2013, each change addressing practical gaps or policy shifts.

The Child Protection (Working with Children) Amendment (Miscellaneous) Regulation 2013 inserted cl 16A (school cleaners) and expanded the definition of close relative to include indigenous kinship systems. It also adjusted household-member exemptions (cll 22–22B) to reflect operational difficulties experienced by out-of-home care agencies.

In 2014 the Amendment Regulation 2014 added governing-body and principal-officer roles (cll 16B, 16C), introduced the 48-hour grace period (cl 22C) and suspension exemption (cl 22D), and created the now-spent historic-findings exemption (cl 22E). These changes responded to recommendations that oversight roles in agencies delivering residential care should be screened and that rigid household rules were causing unnecessary carer shortages.

The 2017 amendment inserted cl 16D to capture non-contact but ongoing counselling, mentoring and distance-education roles, recognising that grooming can occur remotely. Consequential changes were made to the transitional schedule.

2022 saw four sets of amendments. Clause 3A prescribed the NSW Education Standards Authority as a notifiable person for accredited or seeking-to-be-accredited teachers. Clause 16AA added tobacco inspectors. Clause 16CA introduced “head of a child safe organisation” following the Children’s Guardian Act 2019 reforms that embedded the Child Safe Standards. Amendments to cll 16B–16C updated terminology to “specialised substitute residential care” to align with the 2019 Act. Fee and identity provisions were relaxed to permit online processes (cll 17(2A), 18(2)).

The Child Protection (Working with Children) Amendment (Fees) Regulation 2024 inserted Schedule 1A, replacing a flat fee with annual CPI indexation (base $105 in 2024–25, $107 in 2025–26 per the editorial note). This ensures the cost-recovery component keeps pace with inflation while preserving the volunteer exemption.

Most recently, the 2025 amendments inserted cll 28–30. They double the application fee for internal reviews and disqualification reassessments, allow expert-advisory-panel members to advise on reviews, and mandate consideration of significant changes in circumstances since the disqualifying offence. These changes implement recommendations for a more nuanced, evidence-based reassessment process that recognises rehabilitation and changed contexts.

Each amendment reflects a recurring policy tension: broadening the net of screened roles to close perceived loopholes while attempting to minimise regulatory burden through targeted exemptions and procedural efficiencies.

The Regulation itself does not record specific court challenges; its text is administrative and procedural. However, several of its provisions have been shaped by operational controversies that surfaced in stakeholder feedback and parliamentary reviews.

The staged transitional timetable in Schedule 1 cl 2 was controversial because it created different compliance dates for different sectors, leading to confusion among multi-service organisations. The differential treatment of hospital versus community health services and the carve-out for visiting medical practitioners whose contracts were not due for renewal until 2017 generated complaints about inequity.

The addition of school cleaners via cl 16A in 2013 was contentious. Critics argued that cleaners’ contact with children is usually incidental and supervised; the Regulation countered this by prescribing the role outright under Act s 6(3) and removing the “more than incidental” filter.

The household-member exemptions in cll 22–22D have been the subject of repeated adjustment. The 48-hour grace period in cl 22C was inserted after agencies reported that an immediate criminal sanction upon cancellation or refusal was impractical where an adult resident’s status changed unexpectedly. The overseas-resident exemption (cl 22B) and its seven-consecutive-day Australian trigger reflect practical difficulties in obtaining clearances from abroad.

The former cl 22E exemption for pre-1995 findings attracted debate about whether historical, untested allegations should still influence modern clearance decisions. The clause’s sunset on 29 October 2016 and the Children’s Guardian’s power to disapply the exemption in individual cases represented a compromise between finality and child-protection imperatives.

Controversy also surrounds the breadth of the “close relative” definition in cl 3(1), which incorporates indigenous kinship systems. While culturally appropriate, it creates evidentiary challenges for agencies verifying relationships.

No judicial decisions are cited in the Regulation, but the structure of cl 24 (mandatory 30-year record retention, statutory-declaration requirement for error corrections, and personal notice to the worker) suggests legislative awareness of natural-justice and procedural-fairness concerns that had arisen under the predecessor Commission for Children and Young People Act 1998.

Most practitioners miss that cl 6(3A) deems any direct contact by health practitioners or support staff in paediatric settings to be “a usual part of and more than incidental to the work”. This eliminates the incidental-contact defence that remains available in other sectors under cl 20(1)(a).

The volunteer exemption for parents (cl 20(1)(e)–(f)) is narrower than many assume. It evaporates the moment the parent provides intimate personal care, formal mentoring or attends an overnight camp (cl 20(2)). A parent coaching their own child’s team may therefore require a clearance if the role involves extended unsupervised contact.

School cleaners are a prescribed child-related role under Act s 6(3) via cl 16A; they are not merely “workers” to whom the incidental-contact test applies. The transitional cl 2A made this clear from 31 March 2014 for post-commencement hires.

Clause 20(1)(n) allows interstate visitors with an equivalent clearance up to 30 days per calendar year, but the days need not be consecutive and the clock resets on 1 January. Crossing the 30-day threshold even by one day for one worker can expose the employer to strict liability under Act s 9.

The definition of “close relative” in cl 3(1)(b) includes aunts, uncles, nieces and nephews but also, for Aboriginal or Torres Strait Islander persons, anyone within the extended family or kin according to indigenous kinship systems. Agencies unfamiliar with cultural protocols can inadvertently treat a kinship carer as a non-relative, triggering unnecessary clearance obligations or, conversely, granting an inappropriate exemption under cl 20(1)(d).

Clause 16D brings non-contact ongoing counselling or distance education within child-related roles. Many organisations still assume that “no direct contact” equals “no clearance needed”.

The CPI indexation in Schedule 1A contains a ratchet: if the calculated fee falls below the previous year’s fee, the previous year’s fee continues. This can produce unexpected stability or jumps when CPI is volatile.

Finally, cl 24(4) requires a defunct reporting body with no successor to lodge all historical records with the Children’s Guardian before it ceases to exist. Failure to do so leaves the body (or its directors) potentially exposed to ongoing record-keeping obligations that survive corporate dissolution.

Compliance begins with a mapping exercise. An organisation must classify every role against Part 2 and cll 16A–16E. A written register should record, for each role, whether it is child-related, whether any exemption in cl 20 or cll 21–22D applies, and the precise basis for that conclusion. The register must be revisited whenever the Regulation is amended or a role’s duties change.

For roles that are child-related and not exempt, every worker (including volunteers, contractors and governing body members) must hold a current clearance before commencing. Employers must sight the clearance number and verify its status via the Children’s Guardian’s employer portal (cl 23). Volunteers are processed free of charge (cl 17(1)(a)); paid workers trigger the indexed fee in Schedule 1A.

Identity verification follows cl 18. Standard applicants attend a Service NSW centre; authorised carers unable to attend or residing interstate may use approved alternative methods (cl 18(3)). Where standard identification documents cannot be produced, cl 18A permits direct lodgement with the Office of the Children’s Guardian.

Organisations that engage interstate visitors must maintain a rolling calendar-year tally for each visitor under cl 20(1)(n) or (m). A single visit log shared across departments prevents inadvertent breach.

Reporting bodies must embed cl 24 procedures: notifications are submitted only via the Children’s Guardian’s online portal, underlying records are kept for 30 years (or transferred on cessation), and the subject worker is given contemporaneous written notice of any notification, amendment or withdrawal. A template statutory declaration should be kept on file for error corrections.

Households of authorised carers require separate compliance streams. Every adult resident’s clearance status must be verified before the carer’s authorisation is granted or renewed, subject to the exemptions in cll 22–22D and the 48-hour grace period. Agencies should maintain a household register that flags cancellation or refusal events and triggers the 48-hour notification clock.

Organisations should subscribe to Children’s Guardian circulars and review the legislation website quarterly; the amendment history shows changes occur regularly. Internal policies should nominate a “clearance coordinator” with authority to obtain early-application notices under cl 5 or cl 5A where business need justifies accelerating transitional dates.

Finally, record-keeping must satisfy both cl 24(3)–(4) for reporting bodies and any overlapping obligations under the State Records Act 1998 or funding agreements. A single, centralised clearance and notification register, audited annually, is the minimum standard that satisfies both the letter and the protective spirit of the scheme.