Working With Children Check (WA)

A Working With Children Check is generally required of those who work or volunteer with children in “child-related work” in Western Australia and the Christmas and Cocos islands. 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 Working with Children (Criminal Record Checking) Act 2004 and administered by the Department of Communities. An assessment notice lasts for 3 years unless it is revoked by the department.

“Child-related work”

The Act defines “child-related work” as work where the usual duties involve, or are likely to involve, contact with a child, in connection with:

• child care;
• community kindergartens;
• educational institutions;
• coaching or tuition;
• accommodation;
• detention centres;
• social services;
• child health services;
• counselling;
• religious groups;
• clubs, associations or other bodies providing services for children (cultural, recreational or sport);
• paediatric wards of hospitals;
• transport services;
• overnight camps;
• school crossing services;
• entertainment or party services.

Working With Children Check applications and screening

An applicant will receive either a Working With Children Check assessment notice (approval), or a negative notice after the Department of Communities has conducted a police record check on the applicant. Offences are divided into Class 1, 2 and 3 offences.

Class 1 offences include sexual offences against a child, such as rape and incest. Class 2 offences include bestiality, production of child exploitation material, grievous bodily harm, and child stealing. Class 3 offences include all offences that are not Class 1 or Class 2 offences.

If an applicant has no convictions or charges, has a non-conviction charge for a Class 3 offence, or has a pending charge for a Class 3 offence, an assessment notice is granted.

If an applicant is suspected of a pending charge for a Class 3 offence, has a conviction for a Class 3 offence, or has a non-conviction charge for a Class 1 or Class 2 offence, an assessment notice is granted unless there are particular circumstances of the case that show a notice should not be granted.

If an applicant has a conviction for a Class 3 offence that involved an indecent act, has a pending charge for a Class 1 or Class 2 offence, has a conviction for a Class 2 offence, or has a conviction for a Class 1 offence that was committed as a child, a negative notice must be issued unless there are exceptional circumstances which warrant the granting of an assessment notice.

A person convicted of a Class 1 offence is given a negative notice unless there are exceptional circumstances which warrant the granting of an assessment notice. If the department is aware the applicant is convicted of a Class 1 offence, an interim negative notice must be issued until the application is decided.

In assessing exceptional circumstances, the department must consider factors such as:

• the best interests of children;
• when the offence was committed;
• the age of the applicant at the time of offence;
• the nature of the offence and any relevance to child-related work;
• the likelihood of repeat offending and its potential impact on children.

If an employer suspects an employee has been charged or convicted of an offence that makes in inappropriate for the employee to continue in child-related work, the employer can report this to the department. If the department is satisfied the employer has reasonable grounds for their belief, it can require the employee to apply for an assessment notice within 10 days. If the employee refuses, they are liable to a $1000 fine and can be issued a negative notice.

A person granted an assessment notice receives a card that displays the person’s registration number, name, and assessment expiry date.

Exemptions from Working With Children Checks

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

• child volunteers;
• unpaid students aged under 18 working as part of their studies;
• anyone visiting Western Australia for fewer than 2 weeks in a calendar year;
• a parent volunteering at a child’s activity;
• a police officer;
• participants in one-off national events and tours.

Offences

A person who has a Working With Children Check negative notice, or who does not have an assessment notice, must not carry out child-related work  The penalty is a fine of $60,000 or imprisonment for 5 years. It is a defence to the charge if the person had applied for an assessment and it was pending, or the person had been engaged in child-related work for fewer than 5 days in a calendar year.

Employers

An employer must not employ a person in child-related work of the employer knows the person has a current Working With Children Check negative notice. The penalty is a fine of $60,000 or imprisonment for 5 years.

An employer must not employ a person in child-related work if the employer knows the person has a conviction or pending charge for a Class 1 or Class 2 offence, and that the person does not have an assessment notice. The penalty is a fine of $60,000 or imprisonment for 5 years.

An employer must not employ a person in child-related work in connection with a child-care service if the person not have a current assessment notice. The penalty is a fine of $12,000 or imprisonment for 12 months. The same penalty applies if an employer employs a person in child-related employment for more than 5 days in a calendar year and the person does not have a current assessment notice.

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