In all Australian States the law requires all individuals aspiring to work directly, or indirectly in child-related work (employment or on a volunteer basis) to undergo a Working with Children Check.
The legislation which mandates this requirement is the Working with Children Act 2005 (Vic). Its principal aim is the protection of children.
The purpose of the following discussion is to explain the mechanics of how a Working with Children application is made and determined, and to make some suggestions as to how to respond when written submissions are requested by the Secretary.
When will an individual be required to make an application?
An individual seeking admission into ‘child related work’, either for remuneration or as a volunteer, must submit an application to the Secretary of the Working With Children division of the Department of Justice.
The Act provides an extensive definition of what constitutes ‘child related work’. The Act also provides for exemptions for individuals who, although engaged in ‘child related work’, are not required to submit to an application. These exemptions are:
- An applicant who is under 18 years
- A student aged 18 or 19 years old who is doing volunteer work at or organised by the educational institution in which they are enrolled
- A parent volunteering in an activity that their child usually participates in
- A Victorian or Federal Police Officer
- A Teacher registered with the Victorian Institute of Teaching
- A visitor from another Australian state or territory doing child related work in Victoria (for a period of up to 30 days within one calendar year)
What must be included in the application?
Section 10(3) of the Act provides that the applicant for a working with children check must provide their personal details, but must also consent to a police record check and, if relevant, must also consent to enquiries being made about the applicant to any prescribed body in connection with the consideration of the application, and for disclosure by that body of any relevant information.
What is the process for determining an application?
Section 11 provides that the Secretary must carry out the prescribed checks (police and other prescribed body) on the applicant. The Secretary may seek further information from the applicant necessary for considering their application.
Successful applicants are notified by the Working with Children Unit that they have passed, and are issued an assessment notice and thereafter a card; whereas the Act requires the Secretary who proposes to issue a negative notice to allow the applicant an opportunity to make a submission in writing against the proposed negative notice, and the reasons why their application ought to be considered favourably.
How can a Working with Children Check be impacted?
There are two stages in which a Working with Children Check can be impacted. The first is a re-assessment due to a change in circumstances. The second, which is a follow on from the re-assessment, is the issuing of a Negative Notice on the basis that the holder of the check is no longer suitable.
Both are discussed in turn below.
A valid assessment notice may be the subject of re-assessment if there is a change in circumstances
The Act provides a mechanism for ongoing monitoring of a cardholder’s eligibility to engage in child-related work (Section 21).
The Act enables the Department of Justice and Regulation (The Dept) to undergo a reassessment of the cardholder’s eligibility if they are advised (through external agencies such as Victoria Police; professional bodies, or self-reporting by the cardholder) of events which may impugn the eligibility of a current assessment (positive clearance). The Act also mandates self-reporting from the holder of an assessment notice as to a change in circumstances.
The self-reporting obligations under the Act in summary, require the cardholder to self-report if they have been charged with, convicted, or found guilty of a sexual, violent or drug offence, or the offence has been dealt with by a Court in some way. In addition a cardholder must notify the Dept of a professional misconduct determination; or if the cardholder has become subject to reporting obligations imposed under:
- Part 3 of the Sex Offenders Registration Act 2004
- Serious Sex Offenders Monitoring Act 2005
- Serious Sex Offenders (Detention and Supervision) Act 2009
The Dept, upon receipt of information that an existing cardholder has been charged with a prescribed criminal offence, may seek further information from the cardholder and may issue that cardholder with an Interim Negative Notice. By law the cardholder is then required to notify the organisation for whom they are engaging in child-related work about the interim negative notice issued to them.
The cardholder will be notified informing them of an intention to issue a negative notice and an invitation to respond by way of a written submission as to why the cardholder is eligible to retain their eligibility. Thus the process is the same for new applicants. After receiving and considering written submissions, the Dept will decide the application and, if unfavourable, a Negative Notice will be issued.
What are the options for responding to a Negative Notice
Time is of the essence. The Act provides a regime where depending upon the category of assessment notice being considered, the relevant timeframe is either 14 (Category A) or 28 days (Categories B & C). The notice will specify the period in which to respond.
An applicant or a previous cardholder may re-apply within the 5 year ban if they can establish a change in circumstances (refer to discussion above).
In addition, the recipient of a Negative Notice may appeal to the Victorian Civil and Administrative Tribunal (VCAT) within 28 days of the date on the Negative Notice.
VCAT in determining the appeal has a various options:
- Stay the Negative Notice pending your appeal
- Affirm with the decision of the Department to issue a Negative Notice
- Request the Dept to set aside the Negative Notice and issue an assessment notice (positive)
- Request the Dept to reconsider the matter
What is the impact of a negative assessment of the application?
An applicant who is determined by the Dept of Justice and Regulation as being unsuitable, for posing an unjustifiable risk to the safety of children, will be issued a Negative Notice. A Negative Notice prevents a person from engaging in child-related work, and is issued to all the organisations nominated by the applicant in their application. The effect of a negative notice is to render the applicant without permission to engage in child-related work, and the Act creates an offence for engaging in child-related work without a positive assessment. A Negative Notice remains in force for a period of 5 years.
What if the circumstances that initially justified a Negative Notice change?
The Act provides that unless there is a relevant change in circumstances, a holder of a Negative Notice cannot re-apply for a further assessment until the expiration of the 5 year period. A relevant change in circumstances might include the following:
- A pending criminal charge that is withdrawn or struck out by the Court
- A finding of not guilty in respect to a pending charge
- A finding of guilt is set aside
- A person no longer requiring to report under:
- Sex Offenders Registration Act 2004
- Serious Sex Offenders Monitoring Act 2005
- Serious Sex Offenders (Detention and Supervision) Act 2009
What factors does VCAT consider in their determination of an appeal?
Before VCAT can request the Dept to reverse their decision to issue a Negative Notice, VCAT must be satisfied that their decision gives paramount importance to the safety of children; that the appellant would not pose an unjustifiable risk if granted a card; and that it is not contrary to the public interest for the Dept to issue a card to the applicant.
A range of factors are relevant in assessing whether an appellant poses an unjustifiable risk to the community:
- The nature and gravity of the offence and its relevance to child-related work
- The period of time since the offence was committed
- Whether a finding of guilty or conviction was recorded for the offence or a charge for the offence is still pending
- The sentence imposed for the offence
- The ages of the applicant and victim at the time the offence was committed
- Whether the conduct has been decriminalised since the applicant committed the offence
- The applicant’s behaviour since committing the offence
- The likelihood of the applicant posing as future threat to a child
- Any information the applicant provides in or about the application
- Any other matter VCAT considers relevant to the application
- Whether a reasonable person would allow their child to have direct and unsupervised contact with the applicant
Having outlined in broad terms relevant features of the Working with Children legislation, it is finally proposed to provide some practical tips for preparing written submissions to the Department.
Preparing submissions to the Dept to retain an assessment notice or in applying for one
The Department will have outlined a table of offending for which the negative notice is to be issued. It is our experience that the table does not always accurately summarise the charges and so if the charges listed are not correct, this needs to be addressed. It is also best at this early stage to summarise the offending being alleged (as per the police summary).
An explanation for the alleged offending needs to be supplied. In addressing this point, it is important for the submissions to directly address relevant to the circumstances of the offence. Were there unusual or extenuating factors that can be argued in mitigation? Are the charges being defended and what is the basis of any defence? The extent to which a child or children were involved in the offending should also be the subject of comment in written submissions.
The impact of the offending on any alleged victim, and their attitude (where possible) should be addressed.
If the offending was exceptional, and appropriate courses undertaken in rehabilitation, then the details of these constructive steps must be documented in the submissions. To this end, reports to the extent they mitigate the offending should be supplied from appropriate experts (psychologists, alcohol and drug counsellors).
Character references should be obtained. There needs to be an emphasis on quality rather than the quantity of references provided.
The provision of character references does require some careful consideration. To be most effective a referee should address both the nature of the offences and matters personal to the assessment notice holder.
A request for a reference imposes a significant responsibility on the part of the referee, and our solicitors will provide practical guidance on how the reference should be formatted to comply with the requirements of legal submissions.
Importantly, the submissions need to address the impact of not having an assessment notice to work in a child-related employment area.
Finally, the license holder or applicant in their submissions must provide (to the extent they can) compelling reasons as to why they do not pose a risk to the safety of children. This can be addressed in the context of their working and personal life. How does the license holder/applicant relate to other children in their lives (children of their own or nieces/nephews/grandchildren)?
Our firm has been successful in having negative notices revoked in a variety of scenarios:
- Where criminal charges are pending;
- Where criminal charges have been determined and a court outcome obtained (plea of guilty)
- Where charges were contested successfully (a not guilty finding by the Court of the allegations)
A negative notice can obviously have very detrimental impact upon the livelihood of an individual who is working or aspires to work in a child-related employment area. Time is of the essence, and a well-prepared submission may remove the need for any subsequent appeal. We advise all of our clients to respond to any notice received.