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

CFCA Resource Sheet – May 2016

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 check and child safety screening programs

There are three types of screening programs operating in Australia.

The first, in South Australia, has an employer-driven system that makes it mandatory for employers in relevant fields to carry out background checks on prospective employees or volunteers.1 This system provides a "point-in-time" background check and individuals must undergo screening each time they enter into a child-related position.

The second and most common type of screening program in operation is individual based. It offers certification to engage in child-related work to individuals (Qld, NSW, Vic., WA and the NT). These certifications are valid for a period of time (e.g., 3 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 also carry their certification between positions and do not have to undergo repeated screening while their Working With Children Check is valid.

The third type of screening program is the Working with Vulnerable People Background Check operating in the ACT which is a mix of the two. It provides three types of certification based on the eligibility of individual applicants. The "general certification" provides for the same conditions to engage in child-related work as found in individual screening checks discussed above, including a 3-year certification period, ongoing monitoring, and mobility between role positions. The second type of certification is role-based. Similar to the point-in-time background check, this certification restricts individuals to engaging in 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
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. The registration is valid for 3 years and is subject to ongoing monitoring. There are three types of registration administered to individuals under the Working with Vulnerable People Background Check: general registration, which is transferable across all roles and organisations; role-based registration; and conditional registration.
NSW Child Protection (Working with Children) Act 2012 (NSW) The NSW Working With Children Check that came into effect 15 June 2013 has resulted in a move from an employer driven "point-in-time" system to a system where individuals, including volunteers, are responsible for their own application for certification. Employers operating within a child-related industry are required to register online with the NSW Office of the Children's Guardian and to subsequently conduct online verification of new paid employees clearance. Existing paid workers and all volunteers (new and current) also need to have clearance validated online as they are phased in to the new check system. The check is valid for 5 years and subject to ongoing monitoring.
NT Care and Protection of Children Act 2007 (NT) Individuals are required to apply for a Working With Children Check, known as an "Ochre Card" in the NT. The Ochre Card, which is also known as a Clearance Notice is valid for 2 years, and applies to employers and volunteers in child-related employment settings.
QLD Working with Children (Risk Management and Screening) Act 2000 (Qld) Individuals are required to apply for a Working With Children Check, known as a "Blue Card" in Queensland. Valid for 3 years, Blue Cards entitle 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 risk of harm to children, which are monitored by the Public Safety Business Agency.
SA Children's Protection Act 1993 (SA) The South Australian system is an employer driven point-in-time system requiring employers and responsible authorities to obtain National Police Checks and conduct wider screening assessment for those engaging in child-related occupations/volunteering.
TAS Registration to Work with Vulnerable People Act 2013 (Tas.)

The Registration to Work with Vulnerable People Act 2013 came into effect on 1 July 2014. The Act will be phased in over 3 years beginning July 2014, replacing the Good Character Check screening program. Child services will be the first sector required to make the transition to the new regulations.

Individuals who work or volunteer in the child care or other child-related sectors are required to apply for a Working with Children Check. Registrations are valid for 3 years or as determined by the Registrar.

VIC Working With Children Act 2005 (Vic.) Individuals are required to apply for a Working With Children Check. Valid for 5 years, the check entitles individuals to engage in child-related occupations/volunteering and practical training.
WA Working with Children (Criminal Record Checking) Act 2004 (WA) Individuals are required to apply for a Working With Children Check. Valid for 3 years, the check entitles individuals to engage in child-related occupations/volunteering.

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 childcare 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 registration requirements require screening, certain persons are exempt from Working With Children Check requirements (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 criminal record 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).

As the object of a Working With Children Check is to make an assessment of the level of risk an individual poses to children's safety, Working With Children Checks are more extensive, but also more targeted than Police Checks. For example, Working With Children Checks 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, Working With Children Checks 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);
  • any relevant allegations or police investigations involving the individual; and
  • relevant employment proceedings and disciplinary information from professional organisations (e.g., organisations associated with teachers, childcare service providers, foster carers, and health practitioners).

Across the five jurisdictions that currently carry out Working With Children Checks (NSW, NT, Qld, Vic., and WA) and the ACT and Tas., which carry out a Working with Vulnerable People Background Check, there are differences in what information is considered and what sources of information are drawn upon. Table 2 provides a comparison of the information considered in Working With Children Checks and the Working with Vulnerable People Background Check across these jurisdictions.

Table 2. Information considered in Working With Children Checks
Jurisdiction Information considered
ACT The Vulnerable People Background Check is comprised of:
  • A risk assessment conducted by the Commissioner for Fair Trade 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 a driving offence.
  • 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 Working With Children Check is comprised of:
  • 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; 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 New South Wales and were punishable by penal servitude or imprisonment for 12 months or more; or whether any of the above offences were 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 New South Wales.
  • 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, 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 recently been introduced. This means that a Working With Children clearance or enabling order cannot be granted unless the Guardian or 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 is comprised of:
  • A National Police Check - offences of most significance included 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 Blue Card screening system is comprised of:
  • 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, childcare service providers, foster carers, nurses, midwives and certain health practitioners.
  • Information from police investigations into allegations of serious child-related offences will be taken into account 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 Communities and Social Inclusion provides a wider screening assessment which 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 other jurisdictions.
  • Information sourced from professional registration bodies.
TAS The Working with Children 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 Working With Children Check is comprised of:
  • 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 Working with Children Check:

  • 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 a interim detention order, or a supervision order including an interim supervision order under the Serious Sex Offenders (Detention and Supervision) Act 2009.
WA The Working With Children Check considers:
  • 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 states and territories such as: the Police, the Director of Public Prosecutions, the Department of Corrective Services, the Department of the Attorney General, and 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 gaining access to children through organisations. 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 SA's screening relates only to Police Checks, rather than a Working with Children Check