Working With Children Check (NSW)

A Working With Children Check clearance is generally required by those who work or volunteer with children in “child-related work” in New South Wales. The system aims to keep children safe from harm by assessing and monitoring those involved in activities such as childcare, education and sport.

Working With Children Checks are governed by the Child Protection (Working with Children) Act 2012 No 51 and administered by the Office of the Children’s Guardian. A clearance lasts for five years unless it is revoked by the Children’s Guardian.

“Child-related work”

Generally, child-related work, including voluntary work, is providing services for under-18s where the work involves being face to face with children and contact with them is more than incidental to the work.

The Act states such work is in the areas of:

• child development (mentoring and counselling);
• child protection;
• child health services;
• clubs or other bodies providing services for children (cultural, recreational or sport);
• disability services;
• early education and child care;
• education;
• entertainment for children;
• justice services (detention centres);
• religious services;
• residential services;
• transport services for children;
• youth work

Specific positions listed are:

• an approved provider, manager or authorised supervisor of an education and care service;
• an authorised carer;
• an assessment officer;
• the principal officer of a designated agency;
• the principal officer of an accredited adoption service provider.

Other people who require a Working With Children Check clearance include:

• an adult who lives or stays regularly on the property of an authorised carer;
• a family day care service provider;
• prospective adoptive parents and guardians, and adults living with them.

If a position is not listed in the Act but is likely to be child-related work, a person can apply to the Children’s Guardian for the position to be considered.

Screening

An application for a Working With Children Check clearance must list any relevant criminal history of the applicant.

Criminal history encompasses convictions, including those spent, quashed or set aside; and criminal charges, whether or not heard, proven, dismissed, withdrawn or discharged.

In making an assessment, the Children’s Guardian can consider factors such as:

• the seriousness of the offences;
• the time since the offences and the conduct of the applicant since;
• the age of the applicant at the time of offences;
• the age of each victim and their vulnerability;
• the applicant’s current age;
• the likelihood of repeat offending;
• any court or tribunal order in force for the applicant.

The over-riding principles for the Children’s Guardian in deciding an application are whether a reasonable person would allow their child to have direct contact with the applicant that was not directly supervised by another person, and whether clearance is in the public interest.

At any time after receiving an application, if the agency believes there is a risk to children, it can place an interim bar on an applicant, preventing them from engaging in child-related work or living on the same property as an authorised carer or where a family day care service is provided.

Disqualified people

Under the Act, a Working With Children Check clearance must not be granted to a person who has committed offences as an adult that include murder, manslaughter of a child, grievous bodily harm of a child, rape, or sexual offences against a child.

Exemptions

People who are exempt from a Working With Children Check clearance include:

• anyone aged under 18;
• police officers;
• anyone visiting NSW for fewer than 30 days;
• close relatives volunteering at a child’s school and extra-curricular activities, specifically:
  • providing care for a child with disability;
  • taking part in a formal mentoring program;
  • at an overnight camp for children.

Offences

If a person engages in child-related work without a clearance or without having applied for a Working With Children Check clearance, the maximum penalty is 100 penalty units ($11,000) or imprisonment for 2 years, or both. The same penalty applies if a person engages in child-related work while they are subject to an interim bar.

It is a defence to the charge if the person did not know the work was child-related work, or was exempted from holding a clearance, or did not know their clearance had been refused or cancelled or had an interim bar placed on it.

An employer must not allow an employee to engage in child-related work if the employer knows the employee does not have a Working With Children Check clearance. The maximum penalty is 100 penalty units ($11,000). It is a defence to the charge if the employee was told by the Children’s Guardian that they had a clearance or they were exempted from holding a clearance.

For advice or representation in any legal matter, please contact Armstrong Legal.