David TaylorEmployment & Industrial law

Working with Children Check clearances

In order to be permitted to perform  paid and volunteer work with child are required to hold a Working with Children Check clearance (a WWCC clearance).

The scope of work defined as child related work for which a clearance is required is surprisingly large and includes any work where a person had face to face or physical contact with persons under the age of 18.  The system is established by the Child Protection (Working With Children) Act 2012 .

It is an offence to perform child related work without a WWCC clearance.

The system is constructed to be protective of children, rather than punitive of applicants.  As its central purpose is to minimize the possibility of children being place at risk of harm, it can have  draconian effects on applicants.  Allegations (or even rumors) of misconduct, charges where there has been a finding of not guilty and conduct that occurred many years ago may all be considered in the process.

Applications for a WWCC clearance are made to the Office of the Children’s Guardian (the OCG).  The OCG will then make one of three determinations:

  • That the applicant is a Disqualified Person and not entitled to a clearance
  • That the applicant should be the subject of a risk assessment
  • That a clearance should be issued.

Disqualified Persons

If an applicant has been ‘convicted’ of one a prescribed set of offences they are deemed a “Disqualified Person” and their application is automatically refused.  The prescribed offences include violent offences (murder, etc), sexual offences (rape, indecent assault, etc) and offences against children.

Under the Child Protection (Working With Children) Act 2012  a conviction means any finding of guilt, even if the Court found that no conviction was recorded.

However, some disqualified persons are permitted to make an application for an enabling order.  An Enabling Order permits the person to be treated as if they were not a disqualified person.  In order to be eligible to seek an Enabling Order the persons must have been under 18 at the time of the offence, or alternatively received only specified classes of punishment.

The process and considerations around Enabling Orders are discussed further below.

Risk Assessment

If the Office of the Children’s Guardian identifies that:

  • a person has been charged a class of offences listed in the Act (even if they have been found not guilty),
  • a person has been convicted of a class of offences in the Act (which are lesser offences than those that lead to disqualification),
  • there has been a finding by a reporting body (reporting bodies are organisations like schools, churches, etc) of sexual misconduct with, or in the presence of a child, or any serious physical assault of a child,
  • the ombudsman has made a finding that a person poses a risk to the safety of children.  The ombudsman has a role in reviewing allegations made against persons and may make a finding even where a reporting body has not found reportable conduct, or
  • there is a pattern of behavior that gives rise to a concern around child safety,

the OCG will undertake a risk assessment.

The purpose of a risk assessment is to determine whether an applicant for a WWCC clearance poses a real and appreciable risk to the safety of children.

A risk assessment can be undertaken at the time a person makes an application for a WWCC clearance, or at any time the OCG becomes aware of information relating to a current WWCC clearance holder.

The risk assessment process involves the OCG undertaking an investigation of the applicant.  The investigation will include requiring the applicant to provide a statutory declaration setting out all factors relevant to the risk assessment (such as, for example,  details of the offence they were charged or found guilty of, or the specifics of misconduct findings).  The OCG will also seek information from current and former employers, although this process does not generally involve disclosing the nature of the investigation.

In making an assessment as to whether an applicant for a WWCC clearance should be granted a clearance, the Office of the Children’s Guardian will consider:

  • the seriousness of the conduct or incident that gave rise to the risk assessment (as demonstrated by details of the conduct, court outcome and penalty);
  • the length of time since the conduct or incident occurred;
  • The age and vulnerability of the victim of the the conduct or incident;
  • The nature of the relationship between applicant and victim;
  • The age difference between applicant and victim;
  • Whether the applicant knew or could have known the victim was under 18;
  • The applicant’s conduct since the conduct or incident;
  • The applicant’s age at the time of the conduct or incident, and their age now;
  • The applicant’s criminal record, if they have one;
  • The likelihood of the conduct or incidents being repeated;
  • The impact on children if the conduct or incidents are repeated.

As a result of the assessment the the Office of the Children’s Guardian will either issue a clearance, or refuse to issue a clearance.

Appealing a decision to cancel or refuse to issue a clearance, or seeking an Enabling Order

Many decisions of the Office of the Children’s Guardian can be appealed to the New South Wales Civil and Administrative Tribunal (NCAT).

In the event of a decision to cancel or refuse a WWCC clearance occurs following a risk assessment, a person can seek a review of that decision in NCAT.  Applications for review must be commenced within 28 days of the decision, so it is important that applicants act quickly.  Similarly, in the event the Office of the Children’s Guardian identifies that a person is a disqualified person, that person may be able to make application to NCAT for an Enabling Order if they meet certain conditions.

Applications for review of a decision to cancel or refuse a WWCC clearance, and applications for an Enabling Order are quite similar.  Both involve NCAT proceedings where all relvant evidence is considered in order for the decision makers to  reach a conclusion as to whether the applicant  poses a real and appreciable risk to the safety of children.

The NCAT proceedings are similar to Court proceedings.  The involve written evidence being tendered, and witnesses (including the applicant) being cross examined.  Often expert evidence from psychologists will be presented and considered.  The central issue in the proceedings is not whether certain events have occurred in the pasty, but rather whether the applicant poses a risk to children in the future.

In the event NCAT concludes that the person does not pose a risk to children, the matter will be referred back to the Office of the Children’s Guardian who will issue a WWCC clearance.

Expert legal advice is important in risk assessments, applications for review of decisions and applications for enabling orders.  The loss of a WWCC clearance can have a devastating effect on a persons capacity to work.  Segelov Taylor is able to provide assistance and advice on these matters.

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