From 1 August 2017 changes came into effect to increase the protection for children by broadening the type of contact with children for which a working with children check is required. However, schools should carefully consider whether in all cases relying only on a WWC Check is enough.
Prior to the changes, a WWC Check was required for child-related work that involved "direct contact" between the worker and a child that involved only:
- physical contact; or
- face to face oral communication.
After 1 August 2017, the definition of "direct contact" now means any contact between the worker and a child that involves—
- physical contact; or
- face to face contact; or
- contact by post or other written communication; or
- contact by telephone or other oral communication; or
- contact by email or other electronic communication.
However, the question remains as to whether schools should always rely solely on a WWC Check, rather than seeking to supplement it with a National Police Records Check.
In its Report on WWC Checks, the Royal Commission noted:
WWCCs are one of a range of strategies needed to make organisations child-safe. They are one part of an organisation's recruitment, selection and screening practices. While an important tool, WWCCs – in the absence of broader child-safe strategies – do not make organisations safe for children. In fact, an over-reliance on WWCCs can be detrimental to children's safety.
The Department of Justice regularly rejects applications for a WWC Check on the basis of a criminal record. However, the Departments' decision can be challenged, and overturned on appeal, by VCAT. VCAT must be satisfied that giving a WWC Check to a person would not pose an unjustifiable risk to the safety of children, taking into account a number of factors. Such factors include whether a reasonable person would allow his or her child to have direct contact with the applicant that was not directly supervised by another person, and that it would be in the public interest.
In the past 12 months, for instance, VCAT has overturned a number of decisions by the Department to deny a WWC Check, including:
- An applicant who was found guilty on 5 separate occasions between 1982 and 1997 of offences of wilful and obscene exposure in public, which included driving past and back towards two girls aged 16 and exposing himself to them and making lewd suggestions.
- An applicant who was convicted of indecently assaulting a 25 year of female, by grabbing and squeezing her breast, while he was drunk and queueing up to buy alcohol at the 2015 Australian Open.
Depending on the nature of the employment being offered, and taking into account discrimination issues arising out of criminal records, a conviction for an offence might be a legitimate and relevant factor in determining whether a school considers a person suitable to be employed in a particular position. A school would not know the nature of a conviction simply by ensuring that the applicant for employment had a current WWC Check, whereas a National Police Records Check would disclose the nature of the conviction, enabling the school to make further enquiries of the applicant.