Under the Working with Children Act 2005 (Vic) (“WWC Act”), it is an offence to:
•engage in child-related work or volunteering without an assessment notice (s 33);
•apply for child-related work without an assessment notice (s 34); or
•engage a person in child-related work without an assessment notice (s 35).
These offences carry a maximum of two years jail and/or a fine of up to 240 penalty units. An Assessment Notice is given to a person on completion of a valid check, and does not include details of a person’s criminal history.
In broad terms, the child-related work or volunteering to which the check applies means work or volunteering that involves regular direct contact with a child in circumstances where that contact is not directly supervised by another person. Direct contact means any contact between a person and a child that involves “physical contact, face-to-face oral communication or physically being within eyeshot”.
The checks are conducted by the working with children check unit of the Department of Justice and involve a national criminal history check and checks of findings from relevant professional bodies. The checks are subject to ongoing monitoring, so if a person commits an offence after receiving a valid check, it will be revoked and the employer notified.
The check is free for volunteers and costs $108.80 (at 1 July 2015) for paid workers. A “working with children check” card is issued once the check has been carried out.
Under the WWC Act, only people engaging in “child-related work” must apply for and pass the working with children check. Not everyone whose work brings them into contact with children needs to apply for a check.
You need to apply for and pass the working with children check if you meet all of the following criteria:
•your work or volunteer role involves contact with children in connection with one of the listed child-related occupational fields (see below);
•you volunteer or do this work on a regular basis;
•you have direct contact with children under 18 years of age and are not directly supervised; and
•you do not qualify for an exemption from the need for a check.
•overnight camps for children;
•babysitting or childminding services arranged by a commercial agency;
•childcare services including centre-based long-day care, occasional care, family day care, in-home care, outside school hours care;
•child protection services;
•children’s services including kindergartens and preschools;
•coaching or private tuition services of any kind for children;
•commercial entertainment or party services for children;
•commercial gymnasium or play facilities for children;
•commercial photography services for children;
•commercial talent or beauty competitions for children;
•community services established under the Children, Youth and Families Act 2005 (Vic);
•counselling or other support services for children;
•clubs, associations or movements (including of a cultural, recreational or sporting nature) that provide services or conduct activities for, or directed at, children, or whose membership is mainly comprised of children;
•educational institutions for children including state and non-government schools and TAFE colleges;
•other institutions providing children’s study or training programs;
•juvenile justice places or services including remand centres, youth residential centres, youth supervision units, youth training centres, probation services;
•paediatric wards of public or private hospitals;
•publicly funded or commercial transport services specifically for children;
•refuges or other residential facilities used by children;
•school crossing services.
Teachers and police officers are exempt from the checking system, as they are already subject to professional checks. Parents who volunteer in activities in which their children participate are also exempt from the checks. Despite this exemption, some schools adopt policies requiring parents to hold a working with children check to volunteer in such activities.
People who have committed a relevant criminal offence, including child sex offences, or had a relevant disciplinary finding against them, will not be able to work with children. Not all criminal offences are considered relevant. Broadly, relevant offences are serious sexual, violence or drug offences. People who apply for a check are placed into three categories.
Category A applicants are people who:
•are subject to reporting obligations under the Sex Offenders Registration Act 2004 (Vic); or
•are subject to extended supervision orders or interim extended supervision orders under the (now repealed) Serious Sex Offenders Monitoring Act 2005 (Vic)* (see note below); or
•are subject to a supervision order or a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic); or
•have, as adults, been found guilty of serious violent, drug or sexual offences against a child, including child pornography offences.
Refusal is mandatory for Category A applications.
* Note that despite the repeal of the Serious Sex Offenders Monitoring Act 2005 (Vic), any regulations under the old Act continue to apply in relation to an extended supervision order (including a suspended order) or interim extended supervision order until:
•the order is revoked; or
•a decision to make the order is quashed or set aside under section 39(1)(d) of the old Act; or
•a supervision order or detention order is made in respect of the offender under the new Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
Category B applicants are people who:
•have been found guilty of a serious violent, drug or sexual offence but where the victim was not a child, or where both the offender and victim were children; or
•have been found guilty of certain other serious offences listed in the WWC Act (s 13).
Category B applications will be refused unless the Secretary of the Department of Justice is satisfied that granting the application would not pose an unjustifiable risk to the safety of children. In making this decision, the Secretary is required to consider a range of matters set out in section 13 of the WWC Act.
Category C applicants are people who have committed offences under the WWC Act or against whom a “prescribed body” has made adverse findings.
At present, the Victorian Institute of Teaching and the Suitability Panel for Out of Home Carers are the bodies prescribed under the Working with Children Regulations 2006 (Vic).
Category C applications must be granted unless the Secretary is satisfied that it is appropriate to refuse to do so in the particular circumstances. The Secretary is required to consider various factors set out in section 14 of the WWC Act in making this decision.
For more information about working with children checks, visit www.workingwithchildren.vic.gov.au or call 1300 652 879.