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.
Since 2013, under the Child Protection (Working with Children) Act 2012 (NSW) (‘the Act’), those wishing to engage in paid or volunteer work involving direct contact with children need to apply to the NSW Children’s Guardian for a working with children check clearance. Working with children checks are now ubiquitous. Contrary to popular belief, these checks do not only take into account convictions for sexual offences or offences relating to children in determining whether someone constitutes a risk to young people, but can also consider mere allegations, findings of not-guilty, dismissals and even workplace complaints.
Child related work
Whether it be for a dad wishing to coach a local soccer team, an IT expert seeking a job with a government department or someone volunteering for a charitable organisation, it may be necessary undergo a working with children check. Indeed, the Act can have far-reaching implications. That is because ‘Child related work’ for the purposes of the Act is broadly defined to include:
(a) mentoring and counselling services for children,
(b) child protection services,
(c) the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services,
(d) clubs, associations, movements, societies or other bodies (including bodies of a cultural, recreational or sporting nature) providing programs or services for children,
(e) respite care or other support services for children with a disability,
(f) education and care services, child care centres, nanny services and other child care,
(g) schools or other educational institutions (other than universities) and private coaching or tuition of children,
(h) sporting, cultural or other entertainment venues used primarily by children and entertainment services for children,
(i) those working in detention centres relating to children and/or juveniles
(j) any religious organisation,
(k) refuges used by children, long term home stays for children, boarding houses or other residential services for children and overnight camps for children,
(l) transport services especially for children, including school bus services, Ubers and taxi services for children with a disability and supervision of school road crossings,
Under the legislation not every person working in the above areas is required to undergo a working with children check. The legislation is intended to apply only to those that have “direct contact” with a child or children, with that contact being a usual part of, or at least more than incidental, to the work. Direct contact is defined as physical contact, or face-to-face contact.
Organisations getting it wrong
In practice however, it is not atypical for organisations to misapply the legislation. I am reminded of a recent matter where a university lecturer (and staunch civil libertarian) was asked to undergo a working with children check in connection with an academic posting. The lecturer was adamant that he had no criminal record but objected in principle to “yet another government institution prying into my personal life without proper authority to do so”. While perhaps a drastic stance for the lecturer to take, the approach was correct as a matter of law; insofar as he was teaching adults at university his role was not child related. In those circumstances, the requirement for him to undergo a working with children check was misplaced.
Another client reported a situation where he was applying for an IT role within a large government agency and was asked to complete a working with children check. Although the organisation in question was clearly involved in the delivery of services to children, the proposed role was located ‘off site’ in a building staffed entirely by adults.
Convictions are not determinative
Another pitfall for applicants applying for working with children checks is that some believe that if they were not convicted of an offence (often referred to a receiving a Section 10), or if a criminal charge they were facing was withdrawn or dismissed, it will not be of relevance to the Children’s Guardian.
That is not the case. The Act regards the safety, welfare and wellbeing of children – together with the need to prevent child abuse wherever and whenever it might occur – as paramount. As such, the Children’s Guardian can consider criminal charges that occurred years and even decades before.
That does not mean that those with convictions for criminal offences are automatically precluded from working with children. You may be able to get a working with children clearance even if you have a criminal record. The Office of the Children’s Guardian will look at your criminal history and – provided they are of the view that you are not a risk to children – you may still be eligible for a working with children clearance.
As discussed, the Office of the Children’s Guardian will investigate if you have ever been charged with, or convicted of, a criminal offence – even if a court dismissed the charges or found you not guilty.
Convictions for certain serious offences automatically disqualify certain applicants from working with children. These include:
The Office of the Children’s Guardian can also carry out a ‘risk assessment’ and decide if you are a risk to children.
Under the legislation the Office of the Children’s Guardian had comprehensive powers to look at your criminal history and even your employment records to determine if you constitute a real and appreciable risk to children.
Typically, the Office of the Children’s Guardian will consider:
1. Your adult and juvenile criminal history (including convictions as well as criminal matters for which you have been charged, but that have not proceeded to conviction).
2. Workplace allegations of serious misconduct, for example, allegations of sexual harassment even (on occasion) where the workplace allegation was dismissed, or no action was taken by the employer.
3. Any Apprehended Violence Orders (AVOs).
4. Department of Family and Community Service (FACS) records.
5. File notes and recordings made by personnel of the Office of the Children’s Guardian when speaking with you in relation to any application for a working with children check.
The last point is worth emphasising. I recall one matter where a case worker at the Office of the Children’s Guardian described an applicant as ‘hostile and lacking insight as to the importance of child protection’ in relation to his dealings with their Office. These and other adverse remarks made by the case officer – despite being disputed by the applicant – featured prominently in the decision to decline his working with children clearance. In my view, in addition to seeking legal advice where a working with children check has been declined, applicants are encouraged to be courteous and cooperative with the process and in many cases, it may be preferable to the lawyer to liaise with the Office of the Children’s Guardian on their behalf.
What factors does the Children’s Guardian take into account?
In making an assessment, the Children's Guardian may consider the following:
(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,
(f) whether the person knew, or could reasonably have known, that the victim was a child,
(g) the person's present age,
(h) the seriousness of the person's criminal history and the conduct of the person since the matters occurred,
(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,
(i1) any order of a court or tribunal that is in force in relation to the person,
(j) any information given in, or in relation to, the application,
(j1) any relevant information in relation to the person that was obtained in accordance with section 36A of the Act
(k) any other matters that the Children's Guardian considers necessary.
On occasion the Office of the Children’s Guardian can impose an ‘interim bar’ on an you, while they are investigating your matter and determining whether to give you a working with children clearance.
Depending on your circumstances, there is scope to seek a ‘stay’ or freezing of this interim bar.
How long does a working with children clearance last?
It lasts for 5 years and, should you wish to continue working with children, you need to re-apply every 5 years.
What do I do if the Office of the Children’s Guardian refuses or declines my working with children clearance?
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 a review of the Children’s Guardian’s decision.
Because of this short time frame to lodge a review with NCAT, it is imperative that you seek legal advice as soon as possible.
Not every decision by the Children’s Guardian can be challenged at NCAT. You may not be able to challenge it if:
There are two review options available should you receive a letter from the Office of the Children’s Guardian advising you that your working with children clearance has been declined.
In the letter you will be told either that you did not obtain a working with children clearance because of a ‘risk assessment’. If this is the case, you need to seek a review.
Alternatively, the letter will advise that you are ineligible for a clearance because of a ‘disqualifying offence’. In these circumstances, you can seek an ‘enabling order’ to allow the clearance to be granted.
The relevant forms can be found at: www.ncat.nsw.gov.au, under the Administrative & Equal Opportunity section of the website.
Following the proper lodgement of the above forms, NCAT will set the matter down for a Directions Hearing. 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 on a date to be determined.
The rules of evidence do not apply to proceedings before NCAT. Nonetheless, the process can be a complex one with the Office of the Children’s Guardian often represented by experienced solicitors and barristers.
Owing to the congestion of NCAT it can be a number of months before your matter is listed for a Directions Hearing and the fresh hearing, particularly if more than one directions hearing is required. If the refusal of your working with children clearance is causing you significant financial hardship there may be scope to seek a ‘stay’. A stay allows you to continue, in your paid child related work, until a final decision by NCAT is made.
What if you are unhappy with NCAT’s decision?
You cannot appeal to the NCAT Appeal Panel from a decision of NCAT. You may have the right to appeal to the Supreme Court of NSW on a question of law (if a legal error has been made by the Member or Members who heard your matter). If you are not sure of your appeal rights you should speak with a lawyer. This is especially the case as, if you are unsuccessful at the Supreme Court level, you will likely be liable for the Office of the Children’s Guardian’s costs which can often extend to thousands of dollars.
Few lawyers would take issue with the idea that those who have committed serious offences against children ought, as a general proposition, not to be working with them. However, the Act is extremely far-reaching and the Children’s Guardian can take into account conduct that goes well beyond child related or sexual offending. Receiving a refusal letter from the Officer of the Children’s Guardian, in relation to a working with children clearance, can be a very stressful experience for an applicant, particularly if the reason for the refusal relate to conduct that occurred many years or even decades earlier and significant strides have been made by the applicant to rehabilitate and reintegrate into society.
By Sebastian De Brennan, Barrister, email@example.com