Working With Vulnerable People (ACT)

In the ACT, the Working With Vulnerable People (Background Checking) Act 2011 imposes obligations on persons who are working with children and disadvantaged adults and contains offences that are committed when a person fails to comply with these obligations. It is designed to reduce the risk of harm to vulnerable people. This page deals with the law on working with vulnerable people in the ACT.

Who is a vulnerable person?

Section 7 of the Act defines a vulnerable person as a person who is:

• under the age of 18; or
• an adult who is experiencing some form of disadvantage and engages in a regulated activity or with a service designed for persons with their particular disadvantage.

Disadvantage includes mental and physical disability, social or financial disadvantage and difficulty communicating in English.

Registration to work with vulnerable people

The Working With Vulnerable People (Background Checking) Act 2011 requires people who are aged over 16 and who intend to work or volunteer with vulnerable people to undertake a risk assessment (background check) and to be registered to work with vulnerable people before undertaking a regulated activity.

Schedule 1 of the Act lists the activities that are regulated activities. These include:

• activities regulated under the Children and Young People Act 2008;
• childcare services;
• child education services;
• child accommodation services;
• mental health services;
• homeless services;
• refugee and asylum seekers services;
• services that support victims of crime;
• disability services;
• National Disability Insurance Scheme (NDIS) services;
• respite care services.

It is an offence to work with vulnerable people in a regulated activity if you are not registered.

Applying for registration

A person can apply for registration to work with vulnerable people online through Access Canberra. The processing time for applications is roughly four weeks.

When a person applies for registration, they must provide all their personal details, consent to a risk assessment being conducted and disclose any charges or conviction for relevant offences.

Relevant offences are set out in section 11A of the Act and include sexual offences, violent offences property offences, offences involving dishonesty or fraud, driving offences, drug offences and offences against an animal.

An applicant must also consent to further information being obtained.

Risk assessments

A risk assessment is an assessment of whether a person poses an unacceptable risk of harm towards a vulnerable person. Harm may be sexual, physical, emotional or financial.

A risk assessment looks at:

• the person’s criminal history, including charges and findings of guilt where no conviction was recorded;
• any previous registration to work with vulnerable people; and
• any other relevant information.

If an applicant has a criminal history, a number of factors, including the following, will be considered:

• the nature and circumstances of the offences
• the relevance of the offences
• how long ago the offences occurred
• the person’s attitude to the offending

Access Canberra may ask for information from any party that it believes has information that may help assess the application. The applicant may also be asked to provide further information.

Working with vulnerable people without registration

A person must not work or volunteer in any regulated activity in the ACT if they have received a negative notice on an application for registration. A person who is waiting on the outcome of a registration decision may work or volunteer in a regulated activity if:

• their employer agrees and they are supervised when undertaking regulated activities; or
• they are a kinship carer and have not previously been refused registration or had a previous registration cancelled.

Working in a regulated activity without registration under any other circumstances is a criminal offence, unless one of the below exceptions applies.

Who does not require registration?

A person does not require registration to work with vulnerable people if they fall into one of the following categories:

• They are under 16;
• They work or volunteer for less than three days in four weeks, or less than seven days in 12 months;
• They are registered interstate and work or volunteer for less than 28 days in 12 months;
• They are a close relative of the vulnerable person(s);
• They are a close relative of the vulnerable person(s) and there is another vulnerable person involved but a close relative of that other person also participates;
• They are a school student completing work experience or doing practical training;
• They are working or volunteering as a police officer, a police appointee, a registered health professional or practitioner, a lawyer, an approved aged care provider, a financial services licensee, or are working in a declared state of emergency.

Registration outcomes

A person who applies for a registration may receive four different outcomes.

These outcomes are:

• registration without restrictions
• registration with restrictions, meaning the person is allowed to work in some, but not all, regulated activities
• role-based registration, meaning the person is allowed to work only in a specified role;
• a negative notice, meaning the person is not allowed to work in any regulated activity.

If a person is refused registration to work with vulnerable people in the ACT, they may not submit another application for three years after receiving the negative notice. This exclusion period also applies if a person has their registration cancelled. However, a person may reapply for registration if the circumstances that led to the refusal or cancellation have changed.

Request to reconsider

If a person is advised of a proposed decision by Access Canberra and they are unhappy with the proposed decision, they can ask Access Canberra to reconsider.

Appeals

If a person receives a decision that prevents them from working with vulnerable people in the ACT, they may be eligible to formally appeal the decision. A person can appeal to ACAT to set aside the original decision and substitute a decision in favour of their registration.

Appeals at ACAT do not go over the same information that was used to determine the original decision to refuse a registration. In other words, the matter is not heard afresh. In order to succeed in an appeal, a person must convince the tribunal that an error or law was made by the original decision-maker.

An appeal must be filed within 28 days of the decision. An extension of time may be granted if the applicant can provide good reasons for the delay.

If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.