Pre-employment screening: Working With Children Checks and Police Checks

CFCA Resource Sheet – May 2018

Part A: Overview

This resource is intended to provide an overview of the types of screening schemes that operate in Australia for child-related work. State/territory legislative provisions and information about risk assessments are also discussed.

Police checks carried out in each state and territory provide a nationwide screening of criminal history information. Throughout this resource, the terminology reflects the language used in each jurisdiction.

Police check and child safety screening programs

There are three types of screening programs operating in Australia. In each type of screening program, approved agencies are only able to check someone's criminal history or any reports on their professional conduct if they have the informed consent of the individual involved.

The first and most common type of screening program in operation is individual-based. It offers certification to engage in child-related work to individuals (NSW, NT, Qld, Tas., Vic. and WA). These certifications are valid for a period of time (e.g. three years in WA) and provide for ongoing monitoring of an individual's suitability for child-related work. This means that if a relevant criminal offence is committed during the validity of the check, or if the individual is subject to relevant work-related disciplinary procedures, the administering authority may inform employers of the offence and alter or withdraw an individual's entitlement to work with children. Individuals can carry their certification between positions (but not between jurisdictions – for more detail on this see Is my pre-employment screening transferable between states?) and do not have to undergo repeated screening while their WWCC is valid.

The second is the employer-driven system, operating in South Australia, which mandates employers in relevant fields carry out background checks on prospective employees or volunteers. As of 1 July 2017, these background checks are valid for three years and are subject to ongoing monitoring, in line with recommendations made in the Royal Commission Into Institutional Responses to Child Sexual Abuse (2015) Working With Children Checks (2015) report.1

The third type of screening program operates in the ACT, where three types of screening clearance are offered; the 'general certification' provides for the same conditions to engage in child-related work as found in the employer-driven and individual screening checks discussed above, including a three-year certification period, ongoing monitoring and mobility between role positions. The second type of certification is role-based, which restricts individuals to specified regulated activities with a stated employer. The role-based certification cannot be moved freely between regulated activities. The third type of registration is conditional, imposing specific conditions on an individual's registration.

Table 1 outlines the relevant legislation in each state and territory and explains the type of system in place in each.

Table 1. Relevant legislation and state and territory screening programs
Jurisdiction Act Type of program Valid for
ACT Working With Vulnerable People (Background Checking) Act 2011 (ACT) The ACT Working With Vulnerable People Background Check requires that individuals engaging in regulated activities or services, including where these are provided to children, must be registered. A statutory Screening Unit within the Office of Regulatory Services, Justice and Community Safety Directorate is responsible for applications for registration. There are three types of registration administered to individuals: general registration, which is transferable across all roles and organisations; role-based registration; and conditional registration. 3 years
NSW Child Protection (Working With Children) Amendment (Statutory Review) Act 2018 (NSW) Individuals are responsible for their own application for certification and are also legally required to update their contact details, including any name or address changes within three months. Employers must verify that their workers or volunteers who work with children have had a check or applied for one. Employers operating within a child-related industry are required to register online with the NSW Office of the Children's Guardian (OCG) and are required to subsequently conduct online verification of new paid employees' clearance. Existing paid workers and all volunteers (new and current) also need to have their clearance validated online. Parent volunteers attending overnight children's camps are required to have a WWCC. NGOs are required to provide information relevant to an assessment of whether a person poses a risk to the safety of children in response to a request from the OCG.  5 years
NT Care and Protection of Children Act 2007 (NT) Individuals are required to apply for a WWCC, known as an 'Ochre Card' or Clearance Notice in the NT. It applies to employees and volunteers in child-related employment settings. 2 years
QLD Working with Children (Risk Management and Screening) Act 2000 (Qld) Individuals are required to apply for a WWCC, known as a 'Blue Card' in Queensland. Blue Cards allow individuals to engage in child-related occupations/volunteering. Organisations providing child-related services must also have policies and procedures in place to identify and minimise the risk of harm to children. These policies and procedures are monitored by the Public Safety Business Agency. 3 years
SA Children's Protection Act 1993 (SA) The South Australian system is an employer-driven system requiring employers and responsible authorities to obtain National Police Checks and conduct wider child-related employment screening for those engaging in child-related occupations/volunteering. 3 years
Tas. Registration to Work With Vulnerable People Act 2013 (Tas.) Individuals who work or volunteer in the child care or other child-related sectors are required to apply for a Working With Vulnerable People check. Registrations are valid for three years or as determined by the Registrar. 3 years
Vic. Working With Children Act 2005 (Vic.) Individuals are required to apply for a WWCC. The check allows individuals to engage in child-related occupations/volunteering and practical training. 5 years
WA Working With Children (Criminal Record Checking) Act 2004 (WA) Individuals are required to apply for a WWCC. The check allows individuals to engage in child-related occupations/volunteering. 3 years

For a more detailed description of the state/territory requirements for obtaining a Working with Children Check, see Part B: State and Territory Requirements.

Professional registration and child safety policy development

In addition to child-related employment legislation, all states and territories have legislation that requires people who wish to register in certain occupations (e.g. teachers, doctors or child care workers) to be screened for criminal offences. This means that even if child-related employment legislation did not exist, there are still requirements for adults working in certain occupations to undergo screening (e.g. the Education and Training Reform Act 2006 (Vic.); the Medical Practitioners Registration Act 2001 (Qld); the Child Care Act 2001 (Tas.)). Where professional registration requirements require screening, certain persons are exempt from the WWCC (e.g. in Victoria, persons registered under the Education and Training Reform Act 2006).

Organisations may also have developed their own policies that require employees and volunteers to undergo National Police Checks. State and territory police provide criminal history checks to individuals and organisations wishing to obtain Police Checks for employment, voluntary work and occupation-related licensing or registration purposes.

The difference between a Police Check and a Working With Children Check

Police Checks identify and release relevant criminal history information relating to convictions, findings of guilt or pending court proceedings. However, due to spent conviction/non-disclosure legislation and information release policies, there are limitations on the information a Police Check can provide (e.g. the Spent Convictions Scheme stipulates that prior convictions are not to be disclosed where 10 years have passed from the date of the conviction).

Working With Children Checks are more extensive, but also more targeted than Police Checks, as the purpose of a WWCC is to make an assessment of the level of risk an individual poses to children's safety. For example, WWCCs draw together information from various sources but may include a primary focus on certain types of offences (e.g. sexual offences, offences related to the harm or mistreatment of a child). In general, WWCCs give consideration to:

  • convictions – whether or not they are considered spent or were committed by a juvenile
  • apprehended violence orders and other orders, prohibitions or reporting obligations
  • charges (i.e. where a conviction has not been recorded because, for example, a proceeding has not been heard or finalised by a court, or where charges have been dismissed or withdrawn)
  • relevant allegations or police investigations involving the individual
  • relevant employment proceedings and disciplinary information from professional organisations (e.g. organisations associated with teachers, child care service providers, foster carers and health practitioners).

Across the five jurisdictions that currently carry out WWCCs (NSW, NT, Qld, Vic., and WA) and the two that carry out a Working With Vulnerable People (WWVP) check (ACT, Tas.), there are differences in what information is considered and what sources of information are used. Table 2 compares the information considered in WWCCs and the WWVP check across these jurisdictions.

Table 2. Information considered in Working With Children Checks
Jurisdiction Information considered
ACT The WWVP check comprises:
  • a risk assessment conducted by the Commissioner for Fair Trading, which can include checking for charges and convictions whether committed in the ACT or elsewhere for any: sexual offence; offence against the person; offence involving violence; offence involving dishonesty or fraud; offence relating to property; offence involving possession of or trafficking in a drug of dependence or controlled drug; an offence against an animal; and driving offences
  • consideration is given to non-conviction information in relation to a relevant offence (or an alleged relevant offence) involving the following: where a person has been charged with the offence but a proceeding is not finalised; the charge has lapsed, been withdrawn or discharged, or struck out; the person has been acquitted of an alleged offence; a conviction for an alleged offence has been quashed or set aside; an infringement notice for an alleged offence has been served; or the person has a spent conviction for the offence
  • consideration may also be given to: apprehended violence orders; care and protection orders for a child for whom the person has or had parental responsibility; and professional disciplinary proceedings against the person
NSW The WWCC comprises:
  • a National Police Check for charges and convictions (including spent convictions) for: any sexual offence (including but not limited to, sexual assault, acts of indecency, child pornography, child prostitution and carnal knowledge); any assault, ill treatment, neglect of or psychological harm to a child; any registrable offence; and any offences of attempting, or of conspiracy or incitement, to commit any of the above offences
  • consideration of whether any of the above offences were: committed in NSW and were punishable by penal servitude or imprisonment for 12 months or more; or committed elsewhere and would have been an offence punishable by penal servitude or imprisonment for 12 months or more if the offence had been committed in NSW
  • consideration of relevant matters, including all matters irrespective of whether they are considered spent or were committed as a juvenile (relevant matters include charges that may not have been heard or finalised by a court; are proven but have not led to a conviction; or have been dismissed, withdrawn or discharged by a court)
  • consideration of relevant Apprehended Violence Orders
  • consideration of relevant employment proceedings, including: reportable conduct, any sexual offences or sexual misconduct committed against, with or in the presence of a child, including a child pornography offence; any child-related personal violence offence; any assault, ill treatment or neglect of a child; any behaviour that causes psychological harm to a child; or an act of violence committed by an employee in the course of employment and in the presence of a child. As part of an additional risk assessment, the Children's Guardian may give consideration to a range of different factors regarding previous matters that triggered the risk assessment. The Children's Guardian may also consider any other matters deemed necessary for an assessment to be made.

A 'reasonable person test' has been introduced in NSW. This means that a WWCC or enabling order cannot be granted unless the Children’s Guardian or NSW Civil and Administrative Tribunal respectively is satisfied that a reasonable person would allow his or her child to have direct contact with the affected person who was not directly supervised.

NT The Working with Children (Ochre Card) Clearance Screening comprises:
  • a National Police Check – offences of most significance include: sexual offences involving children; violent offences involving children; and drug-related offences involving children
  • an analysis of employment history, including an assessment of references and/or disciplinary proceedings instigated as a result of malpractice
  • other material, which may include assessing whether an individual has attempted to change behaviours or address triggers to behaviours if they have a criminal history, etc.
QLD The Working with Children (Blue Card) screening system comprises:
  • a National Police Check
  • consideration of any charge or conviction for an offence, whether or not a conviction is recorded
  • consideration of whether a person is a respondent to or subject to an application for a child protection prohibition or disqualification order; or whether a person is subject to reporting obligations under the Child Protection (Offender Reporting) Act 2004
  • disciplinary information from professional organisations associated with teachers, child care service providers, foster carers, nurses, midwives and certain health practitioners
  • information from police investigations into allegations of serious child-related offences even if no charges were laid because the child was unwilling or unable to proceed.
SA Under the Children's Protection Regulations 2010, the Department of Human Services provides a wider child-related employment screening that includes:
  • a national criminal records check
  • South Australian Police information regarding alleged offences regardless of outcome, including spent convictions, pending charges and non-conviction charges, and circumstantial information around charges and convictions
  • information from SA government databases, such as SA child protection records and Care Concern investigations
  • information from other jurisdictions
  • information sourced from professional registration bodies.
Tas. The WWVP check obtains applicants' national criminal histories from sources in Australia. This includes information about:
  • convictions for all criminal offences the person may have
  • all spent convictions (convictions that don't ordinarily need to be declared)
  • any pending charges (charges that have not yet been decided by the court)
  • all non-conviction charges (those that have been finalised by the court but didn't result in a conviction).
Vic. The WWCC comprises
  • a National Police Check – offences with most significance include: serious sexual offences; serious violent offences; serious drug related offences; offences against the Working With Children Act 2005 (Vic.) itself
  • a review of relevant findings from prescribed professional disciplinary bodies
  • information sought from other bodies such as courts, the Director of Public Prosecutions and any employee within the meaning of the Public Administration Act 2004, Corrections Victoria and employers – including where a court:
    • made a formal finding of guilt in relation to an offence
    • convicted the applicant of an offence, accepted a plea of guilt from the applicant, or acquitted the applicant of an offence because of mental impairment
  • information about any spent convictions, juvenile convictions and findings of guilt, pending charges and the circumstances surrounding any charges or convictions.

In addition, the following individuals are ineligible to apply for a WWCC:

  • registered sex offenders within the meaning of the Sex Offenders Registration Act 2004 or subject to an extended or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005
  • individuals subject to a detention order, including an interim detention order or a supervision order including an interim supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009.
WA The WWCC comprises:
  • relevant national criminal record information to see if the applicant has charges or convictions that indicate that he or she may be of harm to a child (relevant criminal records include information about: convictions for any offence whether committed as an adult or a juvenile; any spent convictions; any pending charge for a Class 1 or Class 2* offence; and any charge that has been finalised by a court for a Class 1 or Class 2 offence but which did not result in a conviction).

Information may also be obtained from authorised bodies in WA and similar authorities in other jurisdictions such as: the Police, the Director of Public Prosecutions, the Department of Corrective Services, the Department of the Attorney General and the courts.

*Class 1 and 2 offences include various sexual offences against a child as well as offences such as murder, manslaughter, grievous bodily harm, indecent assault, making/viewing child pornography and involvement in child prostitution and other offences.

Conclusion

Screening helps to prevent people with a known history of violent and abusive behaviour from gaining access to children through organisations, employment or volunteering. However, screening alone is not sufficient (e.g. it is limited to identifying known perpetrators) and needs to be coupled with interviews, thorough reference checks, policy development for child-safe environments, and robust accountability frameworks for responding to allegations.

1 Prior to 1 July 2017, background checks in South Australia only provided a 'point-in-time' screening, with no ongoing monitoring. The new screening system has been introduced to help reduce harm to children and vulnerable people.