In NSW, a legal clearance is required for an adult to work in any child-related role in either a paid or voluntary position. This clearance, known as working with children check clearance’ (WWCC), was introduced as a measure to protect children as a vulnerable group.
What is working with children check NSW?
A Working With Children Check (WWCC) is an ongoing assessment by the Office of the Children’s Guardian (OCG) to determine if individuals who wish to fulfil child-related work are a threat to children. It is a screening process and background check undertaken by government-operated bodies, which includes criminal history and child protection records.
When an individual’s working with children permit expires (usually after a period of 2-5 years), they must undergo a re-evaluation to ensure they are still not a threat to children.
What does working with children check disclose?
A WWCC discloses all information contained within a person’s police record, including information relating to spent convictions.
The WWCC includes the candidates:
- Criminal Record/ History
- Pending and Non-Conviction charges
As well as specific details that could contribute to the candidate being a possible threat to children, including:
- Child respondent or prohibition order
- Disqualification orders
What happens after I apply for a working with children check?
After an application has been received, and processed by the OCG, the candidate will be issued with any of the following:
- A Working with Children Check Notice- grants the permission to work with children
- A Disqualification Letter- The candidate cannot work with children
- Notice of Interim bar- The individual cannot work with children until they are cleared to do so
- Notice of risk assessment- Notice that further checks must be carried out before the OCG can be satisfied whether the candidate will be a risk to children.
When will working with children clearance be refused?
Working with children check’s will be refused by the OCG if there are any grounds that may show the candidate to be of risk to the safety and wellbeing of children.
Can I get working with Children check with a criminal record?
Individuals may still be able to obtain a WWCC with a criminal record if the OCG assesses the candidate’s criminal history and determines they are not a risk to children.
Some offences, known as schedule one offences, will trigger a risk assessment by the OCG. These are set out in Schedule 1 of the Child Protection (Working with Children) Act 2012 and include:
- Homicide;
- Wounding or causing serious harm to a child;
- A sexual offence in the presence of or against a child;
- Drugging a child;
- Assaulting anyone, particularly children;
- Child abuse or neglect, including leaving a child unsupervised in a vehicle;
- Stalking;
- Aggravated cruelty to animals; or
- Specific drug offences.
Disqualifying offences
Schedule 2 of the Child Protection (Working with Children) Act 2012 outlines specific offences that disqualify a candidate from being able to obtain a Working With Children Check in NSW. These include:
- Homicide;
- Wounding or causing serious harm;
- Most sexual offences;
- Kidnapping or slavery offences;
- Child pornography offences; or
- Abandonment or exposing a child to danger
Historical offences and findings of guilty without conviction
Despite the spent convictions scheme used for national criminal history checks, spent convictions still appear in background checks for working with children. This is because the priority remains on protecting the children, and any prior patterns that may show an individual to be of danger to children are relevant to the OCG risk assessment.
Key Takeaways
- In NSW, Working With Children Checks (WWCC) are mandatory for child-related work, screening criminal history and child protection records.
- WWCCs are valid for 2-5 years, after which re-evaluation occurs.
- Criminal records don't automatically disqualify individuals; the Office of the Children’s Guardian assesses if one poses a risk to children.
- Schedule 1 offences trigger risk assessments, while Schedule 2 offences may disqualify a candidate.
- Spent convictions still appear in WWCCs due to child safety priorities.
- Unsuccessful applicants can appeal to the NSW Civil and Administrative Tribunal.
Unsuccessful WWCC Applications and Appeals
If a person’s WWCC application results in a refusal or disqualification, they may be able to apply to the NSW Civil and Administrative Tribunal for a review of the OCG decision within 28 days of the decision being made.
A WWCC does not require the OCG to establish facts beyond a reasonable doubt and instead the OCG’s unique risk assessment makes prioritising child safety key to the decision. This means even though an individual may successfully defend a matter, you are not guaranteed to pass a WWCC depending on the individual circumstances.
Written By
James Janke
James Janke is founding partner at Hamilton Janke Lawyers, and has more then decade of experience as a Criminal Defence Lawyer. Admitted to both the Supreme Court of New South Wales and High Court of Australia
