Childcare workers, babysitters and many other occupations require working with children checks. People who have been found guilty of child sex offences, violence or drug crimes will fail the check.
When is a check required?
Passing a working with children check (“a check”) is a legal requirement for everyone in Victoria doing paid or voluntary child-related work who doesn’t qualify for an exemption. In broad terms, the “child-related work” to which the check applies involves regular direct contact with a child. Since 1 August 2017, this has included direct contact even in circumstances where that contact is 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. Since 1 August 2017, the definition of direct contact has included oral, written or electronic communication in addition to face-to-face and physical contact.
After passing a check, a person receives an assessment notice.
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 have a maximum penalty of two years in jail and/or a fine of up to 240 penalty units (see “A note about penalty units” at the start of this book).
The checks are conducted by the Working with Children Check Unit of the Victorian Government Department of Justice and Community Safety 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. A “working with children check” card is issued once a check has been carried out.
The working with children check is free for volunteers and costs $126.50 for paid workers. Working with children check cards must be renewed every five years. It is free for volunteers to renew their cards, while paid workers must pay $93.36 to renew their cards (fees are current at 30 June 2019).
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:
• your work or volunteer role involves contact with children in connection with one of the listed child-related occupational fields (see below); and
• you volunteer/do this work on a regular basis; and
• you have direct contact with children under 18 years of age (even if directly supervised); and
• you do not qualify for an exemption from the need for a check.
The following child-related occupational fields have been established (s 9 WWC Act):
• 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;
• child-employment supervisors under the Child Employment Act 2003 (Vic);
• 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;
• fostering children;
• out-of-home care services under the Children, Youth and Families Act 2005 (Vic);
• student exchange or homestay programs under part 4.5A of the Education and Training Reform Act 2006 (Vic);
• kinship care;
• paediatric wards of public or private hospitals;
• publicly funded or commercial transport services specifically for children;
• refuges or other residential facilities used by children;
• religious organisations;
• 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, cannot work with children. Not all criminal offences are considered relevant. Broadly, relevant offences are serious sexual, violent 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 a supervision order or a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic); or
• have been charged with or at any time been found guilty of serious violent, drug or sexual offences against a child, including child pornography offences, if the conduct occurred when the person was an adult.
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 Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic).
Category B applicants are people who:
• have been charged with or at any time 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 Victorian Government Department of Justice and Community Safety (“DJCS Secretary”) is satisfied that granting the application would not pose an unjustifiable risk to the safety of children. In making this decision, the DJCS Secretary is required to consider a range of matters set out in the WWC Act (s 13).
Category C applicants are people against whom adverse findings and determinations have been made by professional conduct bodies, including the Victorian Institute of Teaching, the Suitability Panel (which deals with the registration and suitability of out-of-home carers), the Victorian Civil and Administrative Tribunal under health practitioner legislation, and the Commission for Children and Young People through the reportable conduct scheme. Category C applicants are also people who have been charged with, or at any time been found guilty of:
• certain offences, such as offences committed when they were a child;
• an offence other than a Category A or B offence.
Category C applications must be granted unless the DJCS Secretary is satisfied that it is appropriate to refuse to do so in the particular circumstances. In making this decision, the DJCS Secretary is required to consider various factors set out in section 14 of the WWC Act.
A list of relevant offences for each category of applicant is on the Working with Children Check Unit website (www.workingwithchildren.vic.gov.au).
For more information about working with children checks, visit www.workingwithchildren.vic.gov.aut.