What is a Working With Children Check in New South Wales?

by Sydney Criminal Lawyers
Daycare Classroom

A legal clearance is required for an adult to work with children in either a paid position or a voluntary role in New South Wales.

This is known as a Working With Children Check clearance’ (WWCC), and is made through the Office of the Children’s Guardian (OCG).

The clearance is required for a wide range of vocations including teaching, undertaking health care work and driving public transport as well as coaching sporting teams, providing foster care and instructing in religion, where this involves children.

When will a working with children clearance be refused?

A clearance may be refused for a wide range of reasons, including having a current matter before the courts, a decades-old offence or even a charge that was ultimately withdrawn.

Circumstances that will trigger a refusal or assessment

Situations that will cause a refusal or trigger an assessment are listed in the Child Protection (Working With Children) Act 2012 (NSW) (the Child Protection Act).

Disqualifying offences

The offences that will cause the refusal of a clearance are contained in Schedule 2, clause 1 of the Child Protection Act, and are:

(a)  murder,

(b)  manslaughter of a child (other than as a result of a motor vehicle accident),

(c)  an offence involving intentional wounding of, or intentional causing of grievous bodily harm to, a child by an adult who is more than 3 years older than the victim,

(d)  an offence under section 61B, 61C, 61D, 61E or 61F of the Crimes Act 1900,

(e)  an offence under section 61I, 61J, 61JA, 61K, 61KC, 61KD, 61KE, 61KF, 61L, 61M, 61N, 61O or 61P of the Crimes Act 1900,

(f)  the common law offence of rape or attempted rape,

(g)  an offence under section 65A of the Crimes Act 1900,

(g1)  an offence under section 66, 71, 72, 73 (before its substitution by the Crimes Amendment (Sexual Offences) Act 2003) or 74 of the Crimes Act 1900, where the person against whom the offence is committed is a child under the age of 13 years or where the person found guilty of the offence received a sentence of full time custody for the offence,

(h)  an offence under section 66A, 66B, 66C, 66D, 66DA, 66DB, 66DC, 66DD, 66DE, 66DF, 66EA, 66EB, 66EC, 66F, 73 or 73A of the Crimes Act 1900,

(i)  an offence under section 67, 68, 76 or 76A of the Crimes Act 1900,

(j)  an offence under section 78A, 78B or 79 of the Crimes Act 1900,

(k)  an offence under section 78H, 78I, 78K, 78L, 78N, 78O, 78Q or 81 of the Crimes Act 1900,

(l)  an offence under section 80A, 80D or 80E of the Crimes Act 1900,

(m)  an offence under section 86 of the Crimes Act 1900 where the person against whom the offence is committed is a child, except where the person found guilty of the offence was, when the offence was committed or at some earlier time, a parent or carer of the child,

(n)  an offence under section 91D, 91E, 91F, 91G or 91H of the Crimes Act 1900 (other than an offence committed by a child prostitute),

(o)  an offence under section 42 or 43 of the Crimes Act 1900,

(o1)  an offence under section 45 or 45A of the Crimes Act 1900 where the person against whom the offence is committed is a child,

(p)  an offence under section 91J, 91K or 91L of the Crimes Act 1900,

(q)  an offence under section 21G of the Summary Offences Act 1988 or section 91M of the Crimes Act 1900 where the person intended to be observed or filmed was a child,

(r)  an offence against section 272.8, 272.10 (if it relates to an underlying offence against section 272.8) or 272.11 of the Criminal Code of the Commonwealth,

(s)  an offence against section 272.9, 272.10 (if it relates to an underlying offence against section 272.9), 272.14 or 272.15 of the Criminal Code of the Commonwealth,

(t)  an offence against section 272.18, 272.19 or 272.20 of the Criminal Code of the Commonwealth if it relates to another offence listed in this Schedule,

(u)  an offence against section 270.6A or 270.7 of the Criminal Code of the Commonwealth where the person against whom the offence is committed is a child,

(v)  an offence against section 233BAB of the Customs Act 1901 of the Commonwealth involving items of child pornography or of child abuse material,

(w)  an offence against section 471.16, 471.17, 471.19, 471.20 or 471.22 of the Criminal Code of the Commonwealth,

(x)  an offence against section 471.24, 471.25 or 471.26 of the Criminal Code of the Commonwealth,

(y)  an offence under section 578B or 578C(2A) of the Crimes Act 1900,

(z)  an offence under a law of another State or a Territory, the Commonwealth or a foreign jurisdiction that, if committed in New South Wales, would constitute an offence listed in this clause,

(aa)  an offence an element of which is an intention to commit an offence of a kind listed in this clause,

(ab)  an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind listed in this clause,

(ac)  any other offence that is a registrable offence within the meaning of the Child Protection (Offenders Registration) Act 2000, if the offence was committed as an adult.

Assessment triggers

The situations that will cause an assessment to be triggered are contained in Schedule 1 of the Child Protection Act, and are:

  1. Offences

(1) Where proceedings have been commenced against a person:

(a)  for an offence specified in clause 1 of Schedule 2 (which are the offences listed above), if the offence was committed as a child (whatever the outcome of the proceedings), or

(b)  for an offence specified in clause 1 of Schedule 2, if the offence was committed as an adult, and the person is not because of those proceedings a disqualified person.

(2)  Proceedings have been commenced against a person for any of the following offences (whatever the outcome of those proceedings)—

(a)  an offence involving intentional wounding of, or causing bodily harm to, a child by an adult (other than an offence specified in clause 1 of Schedule 2),

(b)  any sexual offence committed against, with or in the presence of a child, other than an offence specified in clause 1 of Schedule 2,

(c)  an offence under section 38 or 38A of the Crimes Act 1900 committed against a child,

(d)    (Repealed)

(e)  an offence under section 43B, 60E or 316A of the Crimes Act 1900,

(e1)  an offence under section 66, 71, 72, 73 (before its substitution by the Crimes Amendment (Sexual Offences) Act 2003) or 74 of the Crimes Act 1900 (other than an offence specified in clause 1(1)(g1) of Schedule 2),

(f)  an offence under section 13 of the Crimes (Domestic and Personal Violence) Act 2007 committed against a child,

(g)  an offence under section 6 of the Prevention of Cruelty to Animals Act 1979.

(3)  Proceedings have been commenced against a person for any of the following offences (other than where a person has been found not guilty of the offence concerned)—

(a)  an offence under section 43A of the Crimes Act 1900,

(b)  an offence under section 44 of the Crimes Act 1900 committed against a child,

(c)  an offence under section 227, 228 or 231 of the Children and Young Persons (Care and Protection) Act 1998,

(d)  an offence under section 530 of the Crimes Act 1900,

(e)  an offence under section 23A, 24(1A) or (2A) or 25(1A) of the Drug Misuse and Trafficking Act 1985,

(f)  any other offence, whether under the law of New South Wales or elsewhere, prescribed by the regulations for the purposes of this subclause.

(4)  A person has been convicted of any of the following offences—

(a)  an offence involving intentional wounding, or causing bodily harm, being an offence committed against a child while the person was a child,

(b)  an offence under section 39 or 41 of the Crimes Act 1900, being an offence committed against a child while the person was an adult,

(c)  an offence under section 61 of the Crimes Act 1900, being an offence committed against a child,

(d)  an offence under section 91P, 91Q or 91R(1) or (2) of the Crimes Act 1900, being an offence committed against a child while the person was an adult,

(e)  an offence under section 195(1)(b), 195(1A)(b), 195(2)(b), 196(1)(b), 196(2)(b), 197(1)(b), 197(2)(b) or 203E of the Crimes Act 1900.

(4A)    (Repealed)

(5)  Subclauses (1), (2), (3) and (4) apply to—

(a)  an offence an element of which is an intention to commit an offence of a kind listed in those subclauses, and

(b)  an offence under a law other than a law of New South Wales that is an offence similar to an offence listed in those subclauses, and

(c)  an offence of attempting, or of conspiracy or incitement, to commit an offence listed in those subclauses,

in the same way that they apply to the offences listed in those subclauses.

(6)  A person has been convicted of, or proceedings have been commenced against a person for, offences involving violence or sexual misconduct (whether or not listed in this Schedule or Schedule 2) sufficient to indicate a pattern of behaviour that warrants investigation as to whether it may cause a risk to the safety of children.

(7)  An offence is not specified for the purposes of this clause if it was an offence specified in this clause at the time of its commission and the conduct has ceased to be an offence in New South Wales.

  1. Findings of misconduct involving children

A person has been the subject of a finding by a reporting body, or by a relevant entity within the meaning of Part 4 of the Children’s Guardian Act 2019, that the person engaged in the following conduct—

(aa)  a sexual offence committed against, with or in the presence of a child,

(a)  sexual misconduct committed against, with or in the presence of a child, including grooming of a child,

(b)  any serious physical assault of a child.

What about historical offences and findings of guilty without a conviction?

The Criminal Records Act 1991 (NSW) provides that offences that are more 10 years old are considered to be ‘spent’ and do not therefore come up on a national police check.

These otherwise spent conviction are, however, relevant for the purposes of a working with children check.

The Child Protection Act also makes clear that the prohibitions apply to “convictions or proceedings for offences whether occurring before, on or after… [its] commencement”.

It is also important to bear in mind that for the purposes of the Act, a ‘conviction’ includes “a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.”

The definition therefore covers section 10(1)(a) dismissals, section 10(1)(b) and 10(1)(c) good behaviour bonds and conditional release orders without conviction.

Can the decision to refuse be reviewed?

Under the legislation, there is no discretion for the Office of the Children’s Guardian to review a refusal or disqualification.

However, a person may be able to apply to the NSW Civil and Administrative Tribunal (NCAT) for a review of the original decision.

What will NCAT consider during a review?

The overriding objective in conducting a review is contained in section 4 of the Act, which makes clear that “(t)he safety, welfare and well-being of children … is the paramount consideration in the operation of this Act”.

The primary purpose of a review is, therefore, to determine whether a person poses a risk to children.

Case law

Several cases have informed the NCAT on the determination of matters relevant to a WWCC.

One of these is M v M (1988) 166 CLR 69, which prescribed a 3-step process for addressing any allegations that have caused a refusal of a clearance.

These steps were as follows:

(i) is the decision-maker satisfied that the allegation is true? (if so, it should be given the

weight that the decision-maker considers appropriate);

(ii) if not, is the decision maker satisfied that the allegation is groundless? (if so, the allegation bears no weight at all);

(iii) if no positive conclusion can be reached as to the truth or falsity of

the allegation, then any “lingering suspicion” must be taken into account.

In a recent case, the NCAT directed the Children’s Guardian to grant ‘CXZ’ a WWCC.

The Children’s Guardian appealed this decision to the NSW Supreme Court on the basis that the NCAT had failed to apply the 3-step process outlined in M v M.

The Supreme Court upheld the Children’s Guardian’s appeal.

However, CXZ then appealed the Supreme Court decision to the NSW Court of Appeal – asking that NCAT’s decision to clear CXZ be reinstated.

In its judgment on 17 December 2020, the Court of Appeal found that the NCAT’s failure to apply the 3-step process outlined in M v M did not amount to an error of law.

Instead, the appeal court held that there is a ‘single process’ – rather than a prescribed 3 step process – of assessment, and the overriding “task of the tribunal is to determine…[if] the applicant poses a risk to the safety of children”.

So, the NCAT decision was ultimately re-instated and CXZ was granted a clearance.

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