Working With Children Check Assessments (Vic)
A Working With Children Check permits a person to work with or care for children in Victoria. When a person applies for a Working With Children Check Assessment, they may receive a negative notice if they have criminal convictions or pending charges that render them unsuitable for working with children. A person can apply to the Victorian Civil and Administrative Tribunal (VCAT) for a review of a negative notice.
Interim negative working with children check notices
When a person applies for a Working with Children Check, their application will be assessed under the Worker Screening Act 2020. During the assessment period, a preliminary decision is likely to be made by the Secretary to the Department of Justice and Community Safety in relation to issuing an applicant with an Interim Negative Notice.
An Interim Negative Notice may be issued in circumstances where the applicant has been charged and found guilty of a criminal offence and further submissions are required, and/or the applicant has been charged with a criminal offence, and this charge is currently pending before the court. If this is the case, the applicant will generally be invited to make submissions in response to the Interim Negative Notice.
Once the assessment has been finalised, a decision will be made to either issue an Assessment Notice or issue a Negative Notice (thereby refusing the application).
Issuing the Applicant with an Assessment Notice
In the event that a decision is made to issue an applicant with a Working With Children Check Assessment Notice, the applicant will be notified of this decision and will be permitted to work or volunteer with children, care for children or undertake child-related work.
However, should there be particular changes to a person’s circumstances, such as new criminal charges or the person being subject to civil disciplinary proceedings, the Act requires the Assessment Notice to be reassessed.
Issuing a Negative Working With Children Check Notice
Should an applicant choose not to make a submission after an interim negative notice, this could result in the application being withdrawn, and/or a Negative Notice being issued. If this occurs, the applicant must cease child-related work as soon as practicable thereafter. Failing to do so could result in criminal charges.
Reviewing a negative Working With Children Check notice
In the event that a decision is made to issue the applicant with a Negative Notice, the applicant can apply to VCAT for a review of that decision.
The applicant must apply to VCAT for a review of the decision by not later than 28 days after receiving the Negative Notice. If the applicant applies after this date, they will be required to make submissions as to compelling circumstances.
Pending the final determination of an application for review, the applicant can apply for a stay order, staying the operation of the Negative Notice. The applicant will need to state why the decision to issue a Negative Notice should be stayed.
What if no review is sought?
In the event that a person chooses not to apply for a review of a negative decision, the Negative Notice will stay in place for a period of five years.
The applicant is not entitled to apply for an Assessment Notice within this period unless they can show that there has been a relevant change in circumstances. A relevant change in circumstances is defined in section 77(2) of the Act as where:
(a) a charge that was pending at the date of the Negative Notice being finally dealt with without the applicant being found guilty of the offence; or
(b) a finding of guilt being quashed or set aside by a court after the date of the Negative Notice; or
(c) the applicant no longer being excluded from child-related work under a corresponding working with children law; or
(d) the applicant ceasing to be subject to reporting obligations imposed on him or her by Part 3 of the Sex Offenders Registration Act 2004 (VIC); or
(e) the applicant ceasing to be subject to an extended supervision order or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005 (VIC); or
(f) a relevant finding being quashed or set aside expressly or impliedly after the date of the Negative Notice.
If an application was refused because the applicant had been found guilty of a criminal offence, and this finding of guilt was not quashed or set aside after the issue date of the Negative Notice, then the applicant is not entitled to apply again until the five year period has elapsed.
Registered sex offenders not to apply for Working With Children Check
If the applicant is a registered sex offender under the Sex Offenders Registration Act 2004 or is subject to an extended supervision order or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005, it is a criminal offence for them to apply for an Assessment Notice at any stage.
Even the preliminary stages of an assessment can be complex. It is suggested that if your application is subject to an assessment and you have been placed on notice of an intention to issue you with an Interim Negative Notice and/or a Negative Notice, you should seek independent legal advice prior to responding and/or making submissions.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.