Issues with Background Checks - Working with Children

In most Australian States and Territories, there is a legal requirement for those working with children to undergo some form of background screening prior to employment, and in some cases for volunteering.

Offences exist in most jurisdictions, both for the employee attempting to or successfully working without the requisite check having been performed, and for the employer for engaging or continuing to engage someone without the appropriate clearance.

There is no recognition of the validity of checks conducted between any Australian jurisdictions, including where the checks are ostensibly the same.

Jurisdictions which purport to monitor those who hold approvals only monitor offences within their own jurisdiction, with interstate and Commonwealth offences only checked at the point of renewal, every 2-5 years.

This means that a person could hold a valid check, commit an offence against a child in another state, and continue to hold a valid check for up to 5 more years - a gaping hole in the process.

Where an employer is registered against an approved person in order that they may be notified if that approval is suspended or withdrawn, for various reasons, in most cases the employer cannot be certain that they remain registered and will in fact be notified that the approval is withdrawn.

Prohibition Notices can be issued by the Children’s Services Regulatory Authorities under the Education and Care Services National Law Act, but these are not reported to Working with Children Screening Authorities and are not available for screening purposes, even where the purpose for the Prohibition Notice is relevant to an approval being granted or remaining valid.

Education and Care Services National Law

The Education and Care Services National Law Act (“the Act”) grants power to the Regulatory Authority of each jurisdiction to issue a Prohibition Notice to a person it considers may cause an unacceptable risk of harm to a child at an Education and Care Service.

The reasons for the issue of a Prohibition Notice may or may not fall within the scope of the Working with Children Law of any given jurisdiction; however it is reasonable to assume that at least some Prohibition Notices will be for relevant reasons, based on the underlying purpose of these Notices.

A person subject to a Prohibition Notice must not carry out any activity relating to an Education and Care Service, and must not be engaged by an Approved Provider as a staff member.

Regulatory Authorities are authorised to disclose information related Prohibition Notices to any government department, public or local authority, to the National Authority and to other Regulatory Authorities.

Although Prohibition Notices have been issued by several Regulatory Authorities, there has been limited communication of this between the relevant Regulatory Authorities and other relevant parties.

There was, at the time of writing, no method for the communication of information related to Prohibition Notices to the bodies responsible for the administration of Working with Children Laws (“Working with Children Authorities”) in each jurisdiction.

There is no practical method for an employer to ensure they do not employ, or continue to employ, a person subject to a Prohibition Notice.

Commonwealth

There is no legal requirement to perform criminal history screening for those working with Children; however, at common law the duty of care owed to children in care may lead to the inference that some form of background checking is necessary.

In November 2008, COAG agreed to develop an inter-jurisdictional exchange of ‘expanded’ criminal history information for people working with children.

This agreement was implemented by means of a Memorandum of Understanding (MOU) between the Commonwealth, States and Territories. The MOU establishes a ‘national exchange of criminal history information’ through which jurisdictions are to share expanded criminal history information held by jurisdictions’ police services.  This scheme is referred to as the Exchange of Criminal History Information for People Working with Children (ECHIPWC).

This process facilitates a more comprehensive Working with Children National Criminal History Check in jurisdictions where this is undertaken.

Bodies approved to access this expanded information exist in Queensland, New South Wales, Victoria, the Northern Territory and Western Australia, but not in the ACT, Tasmania or South Australia.

Australia Capital Territory

New Working with Vulnerable People legislation came into effect in November 2012. This new system requires people working with vulnerable people, including children, to ‘register’ themselves with the Office of Regulatory Services (ORS), in the Department of Justice and Community Safety (ACT).

The process includes a Working with Children National Criminal History Check, and provides for ongoing monitoring of those registered. During the initial application for registration, an employer may be listed. This employer will be notified of the outcome of the application for registration.

Subsequently, no notification will be made to any employer if they are registered or deregistered as a person’s employer, and employer(s) will not be notified if a registration is suspended or withdrawn.

Ongoing monitoring of registered persons will be limited to actions within the jurisdiction, namely the ACT. Offences or other actions in NSW will have no effect on a person’s registration.

New South Wales     

Current process    

The Working with Children Check conducted by the Commission for Children and Young People (CCYP) is a point-in-time check which includes no ongoing monitoring of criminal or other behaviour and cannot be repeated during a person’s period of employment.

Subsequent checking must be by a National Criminal History Check. Where this is undertaken, it is a point-in-time check, and includes no ongoing monitoring. The efficacy of National Criminal History Check is limited. Enquiries to CrimTrac by an individual (through their jurisdiction’s Police Service or a private provider) are limited to a class of check referred to as “Vulnerable Persons”. This is a lower standard of checking than that referred to as “Working with Children”, which can only be undertaken by recognised Working with Children Unit applying the Working with Children Law of that jurisdiction.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to the CCYP. The ability for a Prohibition Notice to be taken into account as part of a Working with Children Check relies on self-disclosure by an applicant when consenting to a Working with Children Check. The consent form used for this purpose does not refer to Prohibition Notice under the Education and Care National Law Act, instead referring to Prohibition Notices under both the Child Protection (Offenders Registration) Act 2000 and the Commission for Children and Young People Act 1998. Self-disclosure of Prohibition Notices under the Education and Care Services National Law Act are neither requested nor facilitated on the consent form.

New process          

A new Working with Children Check process was anticipated to be implemented late in 2012 or as early in 2013, but this has still not started. This will include a Working with Children National Criminal History Check, and checking of reported relevant employment proceedings.

For staff already employed, implementation of the new process is expected to be phased-in by sector, starting in 2013 and moving from one sector to the next over several years. There is uncertainty as to when the process will be applicable to Outside School Hours Care employees.

Holders of the new WWCC will be subject to ongoing monitoring. This monitoring will be limited to events which occur within NSW. Offences in other jurisdictions including the Commonwealth will not be monitored, and will only be taken into account at the time of renewal, once every 5 years.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act will not be reported to the CCYP.

A registration or ID card will not be issued under the system. Instead, those applying will be given an ID number, which they will provide to employers and other interested organisations.

Employers register their interest in the WWCC holder using an online system, into which they login and enter the ID number, and be provided with confirmation that the number is valid, who is associate with it, and when it expires. A record of this check must be kept in a register by the organisation.

The act of checking the WWCC connects the employer to the WWCC holder and facilitates later notification if the WWCC is suspended or withdrawn. The WWCC holder cannot remove the interested party. This connection is broken only at renewal, after which the employer must repeat the online checking process.

This is the only process of any Australian jurisdiction, current or proposed, which ensures an employer is notified if a WWCC is withdrawn or cancelled.

Northern Territory     

The Working with Children Screening Authority issues an “Ochre Card” to applicants following a Working with Children National Criminal History Check.

Ongoing monitoring is limited to events which occur within the NT. Offences in other jurisdictions including the Commonwealth will not be monitored, and will only be taken into account at the time of renewal, once every 2 years.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to the Screening Authority.

Registered employers are notified if a clearance is suspended or cancelled, but there is no notification to the employer if or when they are registered or deregistered; the employer cannot know whether or not they are registered against a particular cleared person, to be certain they will be notified if that clearance is revoked.

Queensland     

The Commission for Children and Young People and Child Guardian issues a Blue Card to applicants subject to Working with Children National Criminal History Check.

Ongoing monitoring is limited to events which occur within Qld. Offences in other jurisdictions including the Commonwealth will not be monitored, and will only be taken into account at the time of renewal, once every 3 years.

Registered employers are notified if a clearance is suspended or cancelled, but there is no notification to the employer if or when they are registered or deregistered; without constantly checking by manually sending employee lists to the Authority, the employer cannot know whether or not they are registered against a particular cleared person, to be certain they will be notified if a clearance is revoked.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to the Screening Authority.

South Australia

A National Criminal History Check is required by legislation. This is a point-in-time check, and includes no ongoing monitoring.

The efficacy of National Criminal History Check is limited. Enquiries to CrimTrac by an individual (through their jurisdiction’s Police Service or a private provider) are limited to a class of check referred to as “Vulnerable Persons”. This is a lower standard of checking than that referred to as “Working with Children”, which can only be undertaken by recognised Working with Children Unit applying the Working with Children Law of that jurisdiction.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to CrimTrac, so they will not be visible on a National Criminal History Check.

The Department for Communities and Social Inclusion has set up a “Screening Unit” to provide “a consistent and confidential approach to the screening and independent assessment of background information”. The use of this “Screening Unit” is not mandatory.

It should be noted that this “Unit” is not a Working with Children Check Unit comparable to those in other jurisdictions. It is not able to conduct a Working with Children Criminal History Check, and is limited to providing a Vulnerable People Check equivalent to that which could be obtained by any individual.  It provides no registration or ongoing monitoring, and is not able to access expanded criminal history information under the Exchange of Criminal History Information for People Working with Children (ECHIPWC) information.

Tasmania

Ongoing monitoring is limited to events which occur within Tasmania. Offences in other jurisdictions including the Commonwealth will not be monitored, and will only be taken into account at the time of renewal, once every 3 years.

Criminal history information is used broadly, even where a offences are not clearly specifically to the safety of children but are instead related to the duties involved in position for which the check is sought. For example, driving history is taken into account if the applicant is to be the driver of a school bus. There is no requirement for re-checking or notification to the screening authority within the 3 year expiry period when a person’s position or duties change.

Registered employers are notified if a clearance is suspended or cancelled, but there is no notification to the employer if or when they are registered or deregistered; without repeatedly manually sending employee lists to the Authority, the employer cannot know whether or not they are registered against a particular cleared person, to be certain they will be notified if a clearance is revoked.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to the Screening Authority.

In Tasmania, where the Conduct and Investigations Unit of Department of Education conducts Screening, the Exchange of Criminal History Information for People Working with Children (ECHIPWC) is not available, as no Tasmanian bodies are Prescribed for this purpose.

Victoria    

The Department of Justice issues a Working with Children Check Card, which includes a photograph of the applicant, subject to a Working with Children National Criminal History Check

Ongoing monitoring is limited to events which occur within Victoria. Offences in other jurisdictions including the Commonwealth will not be monitored, and will only be taken into account at the time of renewal, once every 5 years.

Registered employers are notified if a clearance is suspended or cancelled, but there is no notification to the employer if or when they deregistered. An employer cannot know whether or not they are registered against a particular cleared person, to be certain they will be notified if a clearance is revoked.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to the Screening Authority.

Western Australia

The Department of Justice issues a Working with Children Check Card, which includes a photograph of the applicant, subject to a Working with Children National Criminal History Check. This check cannot be

Ongoing monitoring is limited to events which occur within Victoria. Offences in other jurisdictions including the Commonwealth will not be monitored, and will only be taken into account at the time of renewal, once every 3 years.

Registered employers are notified if a clearance is suspended or cancelled, but there is no notification to the employer if or when they registered or deregistered. Without repeatedly manually sending employee lists to the Department for checking, an employer cannot know whether or not they are registered against a particular cleared person, to be certain they will be notified if a clearance is revoked.

Prohibition Notices issued by the Regulatory Authority under the Education and Care Services National Law Act are not reported to the Department.

What can you do?

It is unfortunate that the ‘normal’ checking processes required in each state and territory are inadequate to protect children, but this is how things currently stand.

There are, however, methods to increase the effectiveness of employment background checking to protect the safety of children and other vulnerable groups.

Applying our Legal and Human Resource backgrounds to this problem, we have structured Recruitment and Human Resource practices  for a number of our clients which together form a tight ‘safety net’, ensuring every possible action is undertaken to maximise the accuracy and ongoing validity of background checks for their employees.  

If your organisation is responsible for children, this is something you should not be without. 

Contact Privatei.com.au for more information on these services.

 

December 2012