Sentencing Consequences on Working With Children Checks (WWCC)

When a person has been charged with, found guilty or convicted of certain offences the Office of Children’s Guardian may take action against their Working With Children Check (‘WWCC’). This article explains the consequences related to Working With Children Checks after being charged with or sentenced for certain criminal offences in New South Wales. Working With Children Checks are governed by the Child Protection (Working With Children Act) 2012 (NSW) (“the Act”).

What is a Working With Children Checks (WWCC):

Any person who is involved in child related work or additional child related work, is a prospective adoptive parent or guardian, or is an adult person residing in an authorised care facility providing family day care services requires a Working With Children Check. 

Disqualifying Offences:

The Office of Children’s Guardian must not grant a WWCC to a “disqualified person”. A “disqualified person” is defined in Section 18(1) as:

• A person convicted of an offence specified in Schedule 2 of the Act if the offence was committed as an adult, or
• A person against whom proceedings for any such Schedule 2 offence under the Act have been commenced if the offence was committed as an adult, where the determination or finalisation of the matter is still pending. 

Schedule 2 Offences

Some of the specified disqualifying offences under Schedule 2 of the Act include:

• Murder, 
• Manslaughter of a child (other than as a result of a motor vehicle accident),
• Sexual offences against children,
• An offence involving intentional wounding of, or intentionally causing of grievous bodily harm to, a child by an adult who is more than 3 years older than the victim,
• Kidnapping where the victim is a child except where the person found guilty was a parent or carer of the child.

If a person is convicted of or charged with a Schedule 2 offence their WWCC application will be refused. 

Risk Assessments:

A person’s WWCC will be subject to a risk assessment and may be cancelled if they are charged with or convicted of certain offences. A risk assessment is used to conduct whether the holder of or applicant for a WWCC poses a risk to the safety of children. 

An assessment by the Office of Children’s Guardian will be triggered where:

• Any circumstance outlined in Clause 1 of Schedule 1 of the Act occurs. This schedule prescribes the applicable offences and circumstances i.e. whether proceedings being brought against a person for the offence, the person being found guilty of the offence or the person being convicted of the offence.
• A person has been subject to a finding of a reporting body that the person engaged in:
  • A sexual offence committed against, with or in the presence of a child, 
  • Sexual misconduct committed against, with or in the presence of a child, 
  • Any serious physical assault of a child.
• Information has been referred during the course of an investigation, and the Office of Children’s Guardian considers that there is a real and appreciable risk to the safety of children, to consider whether an interim bar should be imposed,
• Notification has been received from other jurisdictions, or a person has been given a prohibition notice under the Children (Education and Care Services) National Law (NSW).

During a risk assessment the Office of Children’s Guardian will consider the factors under Section15(4) of the Act which include:

• The seriousness of any matters that caused the assessment in relation to the person,
• The period of time since those matters occurred and the conduct of the person since they occurred,
• The age of the person at the time the matters occurred,
• The age of each victim of any relevant offence or conduct at the time it occurred and any matters relating to the vulnerability of the victim,
• The difference in age between the victim and the person and the relationship (if any) between the victim and the person,
• Whether the person knew, or could reasonably have known, that the victim was a child,
• The person’s present age,
• The seriousness of the person’s criminal history and the conduct of the person since the matters occurred,
• The likelihood of any repetition by the person of the offences or conduct or of any other matters that caused the assessment and the impact on children of any such repetition,
• Any order of a court or tribunal that is in force in relation to the person,
• Any information given in, or in relation to, the application,
• Any relevant information in relation to the person that was obtained in accordance with section 36A,
• Any other matters that the Children’s Guardian considers necessary.

In determining whether the applicant or holder does not pose a risk to the safety of children the Office of Children’s Guardian must be satisfied:

• A reasonable person would allow the person’s child to have direct contact with the applicant or holder:
  • While not directly supervised by another person, and
  • While the applicant or holder was engaged in child-related work. And
• The making of the determination is in the public interest. 

The Office of Children’s Guardian will notify the applicant or holder of the risk assessment and provide an opportunity for the applicant or holder to submit a response in support of why their WWCC should not be cancelled/refused.

Interim Bars:

The Office of Children’s Guardian may place an interim bar on a person’s WWCC while a risk assessment is being conducted or at any time after receiving an application for a WWCC in accordance with Section 17 of the Act. An interim bar will prevent the applicant or holder from engaging in child related work for the duration of the bar. 

An interim bar will cease to have effect: 

• On notification by the Office of Children’s Guardian that the interim bar is revoked,
• If the applicant for a WWCC is granted or refused a clearance, or 
• 12 months after the interim bar takes effect.

Internal Review of Working With Children Check Decisions:

An affected person may apply to the Office of Children’s Guardian for an internal review of a “reviewable decision” being:

• A refusal of a WWCC Clearance,
• A cancellation of a WWCC Clearance, 
• The imposition of an interim bar, if the interim bar has been in effect for more than 6 months. 

Internal reviews are not available for the offences and circumstances outlined in Section 27(1) of the Act. 

The Office of Children’s Guardian will review the reviewable decision internally and apply Section 15(4A) of the Act to consider whether the applicant or holder poses a risk to the safety of children and decide to either:

• Confirm the decision to cancel, refuse or impose the interim bar, or
• Set aside the decision and grant a person a WWCC clearance.

An internal review is not permitted to be conducted by the person who made the original reviewable decision and the internal review decision maker must hold an equal or higher office to the original decision maker. 

There is no longer a right of appeal to the New South Wales Civil and Administrative Tribunal against decisions made by the Office of Children’s Guardian to cancel, refuse or impose an interim bar against Working with Children Check clearances.