Many people have held a Working With Children check at some point in their life. This may have been for the purpose of volunteer work, community engagement or to be involved with a local sporting club. It may also have been a compulsory check for the purpose of paid employment. Many people adopt the ‘set and forget’ mentality in relation to their checks and may be unaware of the ongoing reporting obligations that are imposed on them as the holder of a Working With Children check. These involve ongoing compliance checks conducted on an individual’s suitability to continue to hold a valid Working With Children check for either a volunteer or paid position.
Ongoing obligations by the holder of a Working With Children check
Under the Working with Children Act 2005, each and every holder of a Working With Children check is required to comply with various ongoing reporting obligations. Holders must report any relevant change in circumstances to the Department of Justice. Failure to report such a change in circumstances can incur criminal penalties of a fine of up to 60 penalty units in respect of each charge.
Relevant changes in circumstances include:
- Any charge, conviction or finding of guilt for a category A or category B offence, which includes:
- Sexual offence against a child;
- Sexual offence against any individual (other than a child);
- Any offence in relation to child abuse material;
- Murder or attempted murder;
- Trafficking of a drug of dependence to a child;
- Failing to comply with mandatory sex offender registration reporting obligations; and
- Several other serious criminal offences.
Furthermore, the Department of Justice must also re-assess a person’s eligibility to hold a valid working with children check, should it be advised by a prescribed body (such as Victoria Police or other government departments) of a relevant finding against the person. This may be a criminal charge that has been laid or a finding of guilt for an offence.
After the Department of Justice is notified of an event which triggers a re-assessment, the Department will undertake a re-assessment of the person’s eligibility to hold a Working With Children check, pursuant to three types of re-assessments (Category A, Category B or Category C). The Category of the person’s re-assessment will depend on the threshold that needs to be established in order to successfully retain a check.
Category A reassessment
A Category A re-assessment is usually conducted in instances where the holder has been placed on the Sex Offenders Register, or has been charged, convicted or found guilty of an offence under Schedule 1 of the Act (which encompasses serious criminal offences, as well as serious criminal offences relating to children). In this situation, the Department of Justice is required to revoke the person’s assessment notice.
In the event that a check is revoked on this basis, the applicant has the opportunity to apply for the decision to be reviewed by the Victorian Civil and Administrative Tribunal (VCAT). An appeal must be lodged with VCAT within 28 days of receiving the revocation of a check.
It is important that you seek legal advice before pursuing an appeal to VCAT, as there are lengthy exclusion periods that may apply should you be unsuccessful.
Although different categories, both a B and C reassessment follow much the same procedure. The only difference is the types of offences which give rise to the reassessment.
Category B reassessment
Category B reassessments are usually triggered by a conviction, charge or finding of guilt for a relevant offence under Schedule 2 of the Act, which mainly pertains to offences of a serious nature that may or may not involve children.
Category C reassessment
A category C reassessment is generally triggered by a conviction, charge or finding of guilt for certain less serious offences under Schedule 2 of the Act, or for any other offence that does not trigger a category A or B reassessment.
Opportunity to respond
In determining if a person is eligible to retain their check after being reassessed under category B or C, the Department of Justice will request that the holder be provided the opportunity to respond to the incident which triggered the reassessment and provide an explanation as to why they do not pose a risk and should be allowed to continue to hold a valid check.
In determining one’s eligibility to continue to hold a Working With Children check, there are several factors which the Department of Justice will consider. These include:
- The seriousness of the offence and its connection to child-related work;
- Any period of time that has elapsed since the offence;
- If the matter has finalised and a finding of guilt has been made;
- The sentence imposed;
- The age of the victim;
- The behavior of the applicant since the conduct occurred;
- The likelihood of future threat to children; and
- Any other relevant matters.
In conjunction with the above the Department of Justice will balance the above material against the following questions:
- Would a reasonable person allow their child to have direct contact with the person; and
- Would the person’s engagement with children pose an unjustifiable risk to the safety of the children.
If the Department of Justice is satisfied that there is no unjustifiable risk to children, then the person will be advised that their check has not been revoked. If the Department of Justice is not satisfied that the risk to the safety of children is justified, then the check will be revoked and the person will be required to cease any work (both paid and unpaid) that involves interacting with children and requires a valid working with children’s check. Failure to do so may amount to a serious criminal offence.
A negative notice may be appealed to VCAT. However, such an appeal must be filed within 28 days of receiving the negative notice. In this situation, it is important that you receive legal advice in relation to the merits of an appeal.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.