Working with Children Checks
Disclaimer: This article is intended to provide a summary and general overview only. It is not intended to be, nor does it constitute, legal advice. You should seek legal advice from a barrister or solicitor working in the area of working with children checks before acting or relying on any of its content.
From 15 June 2013 a new regime was phased in requiring anyone wishing to engage in paid or volunteer work involving direct contact with children to apply to the NSW Children’s Guardian for a Working with Children Check clearance.
“Child related work” is broadly defined to include:
Mentoring and counselling services for children
Child protection services
The provision of health care to children
Clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children
Education and care services (e.g. child care, school and private coaching or tuition)
Sporting, cultural or other entertainment venues used primarily by children and entertainment services for children
Juvenile detention centres
Refuges, boarding houses and other accommodation used by children (whether for short or long stays)
Transport services for children, including school bus services and taxi services.
The new rules are contained in the Child Protection (Working with Children) Act 2012 (NSW). The object of this legislation is to protect children by not permitting certain people to engage in child related work and requiring those who do to undergo a proper clearance. This is because the Act regards the safety, welfare and wellbeing of children, and in particular protecting them from child abuse, as paramount.
What is a risk assessment?
Although anyone who wants to work with children is required to apply for a clearance, the Children’s Guardian is only required to conduct a risk assessment of an applicant if they are subject to an “assessment requirement”. Schedules 1 and 2 of the Act list a number of trigger offences that will cause an assessment to occur.
Section 15 of the Act says that the Children’s Guardian may take into account the following factors when conducting a risk assessment:
(a) The seriousness of any matters that caused the assessment in relation to the person.
(b) The period of time since those matters occurred and the conduct of the person since they occurred.
(c) The age of the person at the time the matters occurred.
(d) The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim.
(e) The difference in age between the victim and the person and the relationship (if any) between the victim and the person.
The fact that a person committed a trigger offence against someone in their care (for example a teacher or health care practitioner) will factor into the Children’s Guardian assessment as to that person’s future risk to children.
(f) Whether the person knew, or could reasonably have known, that the victim was a child.
(g) The person’s present age.
The length of time between the trigger offence and the present day is a factor that the Children’s Guardian can consider.
(h) The seriousness of the person’s total criminal record and the conduct of the person since the matters occurred.
If the trigger offence(s) is the only criminal offence on the person’s record, the Children’s Guardian may view this as a factor militating in favour of granting a clearance. Conversely, a lengthy criminal record (whether or not those other offences involved children) can reflect unfavourably on an applicant.
(i) The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition.
Medical material and other evidence relating to the applicant’s past experiences with children can be put before the Children’s Guardian to show that the risk of future offending or conduct is low.
(j) Any information given in, or in relation to, the application.
The Children’s Guardian encourages applicants to provide references from people who have seen the applicant work with children in the past, and are aware of their trigger offences.
(k) Any other matters that the Children’s Guardian considers necessary.
It is important to remember that the Children’s Guardian does not need to take all 11 factors into account, and in some cases one or two factors (e.g applicant’s age) will be emphasised.
If you are required to undergo a risk assessment you will be notified by the NSW Children’s Guardian and invited to submit material showing why you should be cleared to work with children (e.g character references). In most cases an Interim Bar preventing you from working with children will be put in place during the risk assessment process. If the Children’s Guardian is proposing to refuse a person’s Working with Children Check clearance, they will send out a notice in these terms and give them a final opportunity to submit favourable material. After considering all of the evidence submitted by the applicant, the Children’s Guardian will make its decision.
Further reforms or changes to the Law
The Working with Children Check (WWCC) system in NSW was overhauled under reforms introduced by the Child Protection Legislation Amendment Act on 2 November 2015.
The most significant change relates to the granting of ‘enabling orders’. Previously, people convicted of a disqualifying offence could apply to the Office of the Children’s Guardian for an order allowing them to work or volunteer with children. The changes mean that people convicted and imprisoned for murder, the indecent or sexual assault of a child, incest with a child or a child pornography offence will be prohibited from overturning their working with children ban. Appeal rights will also be taken away from people who are subject to a ‘control order’, such as an Intensive Correction Order (ICO) or a good behaviour bond.
The government claims that community expectations, values and standards will become part of the WWCC decision-making process through the introduction of a “reasonable person” test. Going forward, the Children’s Guardian and NSW Civil and Administrative Tribunal (NCAT) – which hears appeals from decisions of the Guardian – must be satisfied that a reasonable person would allow their child to have unsupervised, direct contact with the WWCC applicant. Granting a WWCC must also be in the ‘public interest’.
Other key changes in the WWCC area include:
A requirement that employers who engage in child-related work verify that an employee has a current WWCC, or an application for one on foot.
A requirement that governing bodies ensure persons appointed to key positions hold a WWCC clearance.
The creation of an Expert Advisory Panel within the Office of the Children’s Guardian to provide general advice and guidance on risk assessment matters, for example research on the behaviour of particular types of offenders.
What can I do if the NSW Children’s Guardian has refused to clear me to work with children?
There is no appeal available for those convicted of murdering a child or who have criminal proceedings relating to a trigger offence still pending against them.
In all other cases a person has 28 days after being notified that their Working with Children Check clearance has been refused to apply to the NSW Civil and Administrative Tribunal (NCAT) for an review of the Tribunal’s decision. NCAT will invite both the applicant and Children’s Guardian to provide further evidence (if any), and then conduct a fresh hearing of the matter. The rules of evidence do not apply to proceedings before NCAT.
Working with children check legislation can have very broad implications for individuals who may have offences years, even decades before. It can also affect people who had charges that were brought against them that didn’t even end up proceeding at Court or were otherwise withdrawn and dismissed in a court of law.
Furthermore, in a way that arguably goes well beyond the legislations intention, a number of organisations are insisting on working with children clearances for work that, properly interpreted, is not even children’s work. That is to say, organisations are making people undergo working with children checks in circumstances where they are not actually working with kids. In these circumstances, consideration should be given to retaining a lawyer expert in the area.
By Sebastian De Brennan, Barrister, firstname.lastname@example.org