Explainer – why we do Working with Children Check work

Explainer – why we do Working with Children Check work

Tuesday, 10 October 2017

Why do we do Working with Children Check work?

  • A person’s mistakes should not keep them trapped in a cycle of disadvantage. We think that supporting ways of enabling people to turn their lives around is important.
  • People can be rehabilitated.
  • Reducing employment options where a person does not pose an unjustifiable risk to children is not in the best interests of children or the community.
  • Unemployment is a key driver of a person offending again.
  • The government can make mistakes and abuse its powers. This scheme reaches far and wide into the community so it is important to ensure that the government is using its powers in fair and appropriate ways.

What is a Working with Children Check?

The Working with Children Check (WWCC) scheme helps keep children safe from harm by screening people who work with or care for them.

All people who work directly with children under 18 years of age must have a WWCC unless an exemption applies.

WWCCs are carried out by the Department of Justice and Regulation. The Victorian Civil and Administrative Tribunal (VCAT) has the power to review certain decisions made by the department.

The scheme was originally intended to protect children from child sex offenders. It now captures far more offences.

How does a refusal affect an applicant?

A WWWC refusal can have a significant impact on the applicant. A refusal keeps them out of child-related work.

Refusals also affect the applicant’s ability to qualify for some occupations because they cannot do compulsory work placements.

For applicants who are parents, it also means that parent is unable to volunteer at their child’s school or help with their child’s sporting team if they are refused a WWCC.

The five-year ban on re-applying for a WWCC is an especially difficult hurdle for people who are unable to work or volunteer because of a WWCC refusal.

How does a refusal impact the community?

Keeping people who are not an unjustifiable risk to children out of work impacts the community more broadly.

We know that unemployment is a key driver of a person offending again. People who have been refused a WWCC may become or remain reliant on social security payments.

With this possibility, reducing employment options where a person does not pose an unjustifiable risk to children is not in the best interests of children or the community.

The community also loses out if someone is prevented from volunteering because they were refused a WWCC.

Mistakes can be made

The Department of Justice and Regulation and VCAT must make decisions about WWCC applications fairly and objectively.

Decisions must be based on whether giving an applicant a WWCC would pose an unjustifiable risk to the safety of children. This can be a fraught process because there are no guarantees that by looking at someone’s past conduct you can determine what they might do into the future.

Mistakes can be made when a decision relies too much on subjective considerations, rather than on expert risk assessments. Whether someone shows ‘insight’ into their offending or if they offended long ago while young, even if serious, might not be a reliable indicator of risk. The Department might also not have access to all relevant material when it makes a decision.

The WWCC scheme can also be overused by employers and organisations that say they require checks when the positions with them do not involve child-related work.

Criminal histories raised by the checks for unrelated matters can block future employment.

The law must be followed

The law established by Parliament in the Working with Children Act 2005 (Vic) quite properly makes the safety of children paramount.

The important aim of keeping children safe exists alongside other related aims of ensuring access to employment, both paid and voluntary, for people with criminal histories when they re-enter society.

Our work helps to ensure that Parliament’s intention is followed. It requires decisions to be made fairly and objectively – not arbitrarily or without properly assessing risk.

The scheme should operate in a way that keeps children safe and does not unnecessarily prevent people from working or participating in the community.

We look at whether decisions have been properly based on sound and comprehensive evidence. This can be detailed and complex.

An applicant who wants VCAT to review an adverse decision needs proper assistance to present a case and test the evidence, and to make sure that the tribunal has all the information it needs to make a fair and evidence-based decision.

At VCAT an applicant can test an adverse decision with a broader range of evidence and can question witnesses.

Some basic facts and figures

Some basic facts and figures about the scheme and our work in this area include:

  • The WWCC scheme was originally intended to protect children from child sex offenders. It now captures far more offences.
  • More than 20 per cent of Victorian adults hold a WWCC notice, and more than 200,000 applications are considered each year.
  • In the 11 years since the scheme was introduced, very few decisions have been challenged. Each year, there are less than 50 applications to VCAT to review an adverse decision.
  • There are even fewer appeals to the Supreme Court – only eight in the 11 years since the scheme was introduced. We have been involved in three of these appeals at rate of about one every four years.
  • We have taken on 10 WWCC cases at VCAT since the start of 2015. Negative assessments were overturned in six of those.

Note: Figures current at time of publication, 11 October 2017.

Read about the experiences of our clients

Read about how we helped some of our clients who had been refused a WWCC:

More information

Find out more about Working with Children Check. Also: