| Status |
Use of the model clause is Optional but complying with the Commonwealth Child Safe Framework is mandatory for Non-Corporate Commonwealth Entities |
|---|---|
| Source |
Attorney-General’s Department |
| Legislation / Policy |
Commonwealth Child Safe Framework available at: https://www.childsafety.gov.au/our-work/lead-commonwealth-child-safe-framework |
| Legislation / Policy contact | |
| Additional information |
National Principles for Child Safe Organisations available at: https://childsafe.humanrights.gov.au/national-principles |
This clause should be considered where child safety is relevant to the contract’s activities. It is recommended that a child safety clause should be used in all contracts where the contract is to provide Services directly to children, or for activities that will or may involve contact with children that is a usual part of, and more than incidental to, the Services. You should otherwise consider using a child safety clause if the Services involves children more broadly, even if it does not meet the description above. This though will be entirely dependent upon the nature of the Services and the risk of harm to children.
The obligations in the clause are aimed at ensuring that all personnel who may be working with children are appropriately screened for that purpose. This clause also ensures that the Supplier’s obligations under the contract relating to child safety are replicated in subcontracts and secondary subcontracts.
This clause should only be used in contracts where you are not sure whether Supplier personnel will or may interact with children during any part of the Contract term (eg where the Service may involve incidental contact with children). Examples include a service that may:
- be provided on a school’s premises where interacting with children is not part of the contracted work – this may provide Supplier personnel with an incidental opportunity to interact with children; or
- include Supplier personnel attending community events such as Agricultural Show Days as a usual part of their employment – this may provide an incidental opportunity to interact with children who also attend these events.
Option 1 requires the Supplier to:
- comply with relevant legislation relating to working or volunteering with children when performing the Services;
- provide an annual statement of compliance with the child safety clause; and
- impose the same child safety obligations on subcontractors.
This clause should be used in contracts where Services will be provided directly to children or where some direct contact with children will be likely. For example:
- providing early childhood learning services to children;
- providing telephone counselling services to school aged children; or
- teaching children to abseil at an outdoor mentoring program.
The Option 2 clause should also be used in contracts for Services that involve contact with children that is a usual part of, and more than incidental to, the Services. For example, a service to train parents may involve or enable significant contact with a child or children even if the service is directed at the parent.
Option 2 requires the Supplier to:
- comply with relevant legislation relating to working or volunteering with children when performing the Services;
- ensure working with children checks are obtained where required and remain current for the duration of the Services;
- implement the National Principles for Child Safe Organisations;
- identify and manage the risk of harm or abuse to children in undertaking the Services;
- provide training and implement a compliance regime for persons undertaking child-related work;
- provide an annual statement of compliance with the child safety clause;
- notify the Commonwealth of any failure to comply with the child safety clause; and
- impose the same child safety obligations on subcontractors.
Child Safety
X.1. If any part of the Services involves the Supplier employing or engaging a person (whether as an officer, employee, contractor, or volunteer) that is required by State or Territory law to have a working with children check to undertake the Services or any part of the Services, the Supplier agrees:
- to comply with all State, Territory or Commonwealth law relating to the employment or engagement of people who work or volunteer with children in relation to the Services, including mandatory reporting and working with children checks however described; and
- if requested, provide the Commonwealth at the Supplier’s cost, an annual statement of compliance with this clause, in such form as may be specified by the Commonwealth.
X.2. When Child Safety obligations may be relevant to a Subcontract, the Supplier must ensure that any subcontract entered into by the Supplier for the purposes of fulfilling the Supplier’s obligations under the contract imposes on the Subcontractor the same obligations regarding Child Safety that the Supplier has under the Contract. Each subcontract must also require the same obligations (where relevant) to be included by the Subcontractor in any secondary subcontracts.
Child Safety
Definitions
X.1. In this Agreement:
Child means an individual(s) under the age of 18 years and Children has a similar meaning;
Child-Related Personnel means officers, employees, contractors, agents and volunteers of the Supplier involved with the Services who as part of that involvement may interact with Children;
Legislation means a provision of a statute or subordinate legislation of the Commonwealth, or of a State, Territory or local authority;
National Principles for Child Safe Organisations means the National Principles for Child Safe Organisations, endorsed by the Council of Australian Governments as published by the Commonwealth Government (available at: https://www.humanrights.gov.au/about/news/coag-endorses-national-principles-child-safe-organisations);
Relevant Legislation means Legislation in force in any jurisdiction where any part of the Services may be carried out;
Working With Children Check or WWCC means the process in place pursuant to Relevant Legislation to screen an individual for fitness to work with Children.
Relevant checks and authority
X.2. The Supplier must:
- comply with all Relevant Legislation relating to the employment or engagement of Child-Related Personnel in relation to the Services, including all necessary Working With Children Checks however described; and
- ensure that Working With Children Checks obtained in accordance with this clause X2 remain current and that all Child-Related Personnel continue to comply with all Relevant Legislation for the duration of their involvement in the Services.
National Principles for Child Safe Organisations and other action for the safety of Children
X.3. The Supplier agrees in relation to the Services to:
- implement the National Principles for Child Safe Organisations;
- ensure that all Child-Related Personnel implement the National Principles for Child Safe Organisations;
- complete and update, at least annually, a risk assessment to identify the level of responsibility for Children and the level of risk of harm or abuse to Children;
- put into place and update, at least annually, an appropriate risk management strategy to manage risks identified through the risk assessment required by this clause X3;
- provide training and establish a compliance regime to ensure that all Child-Related Personnel are aware of, and comply with:
i. the National Principles for Child Safe Organisations;
ii. the Supplier’s risk management strategy required by this clause X3;
iii. Relevant Legislation relating to requirements for working with Children, including Working With Children Checks; and
iv. Relevant Legislation relating to mandatory reporting of suspected child abuse or neglect, however described.
f. provide the Commonwealth with an annual statement of compliance with clauses X2 and X3, in such form as may be specified by the Commonwealth.
X.4. With reasonable notice to the Supplier, the Commonwealth may conduct a review of the Supplier’s compliance with this clause.
X.5. The Supplier agrees to:
- notify the Commonwealth of any failure to comply with this clause X;
- co-operate with the Commonwealth in any review conducted by the Commonwealth of the Supplier’s implementation of the National Principles for Child Safe Organisations or compliance with this clause X; and
- promptly, and at the Supplier’s cost, take such action as is necessary to rectify, to the Commonwealth’s satisfaction, any failure to implement the National Principles for Child Safe Organisations or any other failure to comply with this clause X.
X.6. When Child Safety obligations may be relevant to a Subcontract, the Supplier must ensure that any subcontract entered into by the Supplier for the purposes of fulfilling the Supplier’s obligations under the contract imposes on the Subcontractor the same obligations regarding Child Safety that the Supplier has under the Contract. Each subcontract must also require the same obligations (where relevant) to be included by the Subcontractor in any secondary subcontracts.
Where the clause is included in the contract you may want to consider ensuring that a failure to comply with the clause will give the Customer the appropriate remedies such as exercising step in rights or withhold payment of the contract fees until the Supplier complies with their contractual obligations or termination of contract for fault/breach.
Given the importance of the child safety obligations and the potential risks to children of non-compliance, if the Supplier does not comply with this clause, you should take immediate action to address the non-compliance. Depending on the nature of the non‑compliance, you may need to report it to authorities. If the Supplier has reported non‑compliance with their legislative obligations for working with children checks or mandatory reporting specified in legislation. It may be an offence in the relevant state or territory to fail to comply with the legislative requirements. If this occurs, you are encouraged to seek advice from your legal advisors on your obligations.
Otherwise, the relationship between the Customer and the Supplier is governed by the terms and conditions of the contract. In the first instance, it may be appropriate to request the Supplier to urgently provide:
- further information about the non-compliance;
- details about how and when the Supplier will rectify their non-compliance (please make sure that this is done within an appropriate timeframe); and
- notice of when the Supplier has achieved compliance with the child safety clause.
If you do not receive an adequate response from the Supplier regarding compliance with the clause, you may wish to consider seeking legal advice about the remedies that may be available under the contract, including exercising step in rights or withholding payment of the fees until the Supplier complies with their contractual obligations or termination of the contract.
