All Australian states and territories (except Tasmania) have, or will soon have, legislation mandating the pre-employment screening of people who work or volunteer in child-related organisations. Employers’ obligations differ from state to state, but at a minimum, employers in child-related areas are prohibited from employing people who have not passed the relevant screening test.

The obligations in some states are more onerous.

Implications for employers

  • Employers in child-related areas should advise job and volunteer applicants that the outcome of their application will depend on successful completion of the screening process.
  • Employers should be able to demonstrate that they have a system for ensuring compliance with the requirements in their relevant jurisdiction. Depending on the requirements in the particular jurisdiction, this might include:
    • identifying all positions in the organisation that involve working with children;
    • keeping a register of information regarding employees/volunteers who work with children, including names; ages; card/certificate numbers and expiry dates; and whether the card/certificate’s validity has been checked and, if so, when; and
    • ensuring there is a system or process for checking card/certificate validity and card/certificate renewal (depending on the jurisdictional requirements).
  • As legislative requirements vary and jurisdictions do not recognise each other’s working with children checks, employers who operate in more than one jurisdiction need to be familiar with the requirements in each jurisdiction and implement procedures to comply with them. This can place considerable administrative and record keeping obligations on employers.

Background

The last ten years have seen legislation introduced in every Australian jurisdiction, except Tasmania, restricting persons who are deemed to be at risk of harming children from working in child-related areas. The legislation specifies categories of child-related work and obliges employers, employees and volunteers to undergo screening to assess individuals’ suitability to work in that area. There is significant variation between states and territories and there is no national recognition of working with children checks. However, in 2009 the Council of Australian Governments agreed to the “National Framework for Protecting Australia’s Children 2009-2020”. One goal is implementation of a national framework for inter-jurisdictional exchange of criminal histories for people working with children.

Who is responsible for initiating the screening process?

There are differences between the jurisdictions as to whether the employer or individual must initiate the checking process, what records are checked and who is required to undergo screening.

  • In New South Wales and Queensland, employers in child-related areas must register with an agency which conducts checks of the employer’s employees and volunteers.
  • In South Australia, employers may either register with an agency or complete the screening process themselves.
  • In the ACT, Northern Territory, Victoria and Western Australia individual employees and volunteers are responsible for applying for a card or notice declaring they are suitable to work with children. Employers in these jurisdictions are responsible for ensuring they do not engage persons without the relevant card or notice.

Who must be screened?

The obligation to undergo screening applies to people in child related industries who have direct contact with children. The definition of child related industries varies across the jurisdictions, but examples from the different legislation include:

  • child education services, including kindergartens, pre-schools and schools and private commercial tuition of children;
  • child protection services, including fostering services;
  • childcare services, including before and after school facilities and residential care centres;
  • child detention centres;
  • clubs and associations, including religious, cultural and sporting associations, that have a significant child membership;
  • commercial babysitting or child minding organisations;
  • counselling or other support services for children;
  • child transport services including school bus drivers;
  • sports coaching or tuition for children;
  • children’s health services;
  • overnight camps for children; and
  • children’s entertainment or party services.

All jurisdictions require adult employees to undergo checks. Other than New South Wales, all jurisdictions also require some (usually those over a certain age) or all volunteers to undergo checks.

The jurisdictions also vary in terms of whom they exempt from the checking requirement. Examples of exempt persons include people in professions with existing criminal history screening requirements, for example, teaching and medicine; volunteers who are parents of the children concerned; and trainee students.

What is checked?

The screening process involves checking, at a minimum, the individual’s criminal record. In some jurisdictions, convictions for certain offences (for example, sexual offences against children) will automatically prevent a person from passing the screening process. In other jurisdictions, a conviction is not technically an automatic bar as the approval process is expressed as being discretionary - although it is fair to say that a conviction of a serious sexual, violent or drug offence involving a child would almost certainly result in the individual failing the screening process.

In some jurisdictions, an individual being charged but not convicted of certain criminal offences may be denied permission to work with children. For example, in the case of Chief Executive Officer, Department for Child Protection v Grindrod (no 2) (1998) 36 WAR 39, a man who was a volunteer T-ball coach was issued with a ‘negative notice’ by the Department for Child Protection as a result of his having been charged with sexual offences against a 6 year old child. He was initially convicted of the offences at trial, but had the convictions overturned on appeal, after which the prosecution elected not to proceed any further with the case. In considering the matter, the Court of Appeal commented that the purpose of the screening process was not to ascertain whether an individual is guilty of offences with which he or she has been charged or convicted, but to assess whether there is an “unacceptable risk” that an individual might, in future, cause sexual or physical harm to children.

In some jurisdictions, material beyond the individual’s criminal record may be considered, for example, the records of professional disciplinary bodies, information obtained from various government bodies including police, prosecuting agencies and courts, and character references.

The approval process

The approval process generally involves the individual or employer submitting an individual’s details to the relevant screening authority. The screening authority analyses the relevant information (for example, the individual’s criminal record, employment record and any other information such as character references).

If the screening authority is considering refusing to grant the card/certificate, notice of this fact is generally given to the individual and the individual then has an opportunity to make submissions about why the card/certificate should be granted.

If the screening authority makes a final decision refusing to grant a card/certificate, its decision is subject to an appeal (for example, in Western Australia, a decision by the Department of Child Protection to issue a “negative notice” is reviewable by the State Administrative Tribunal on the application of the individual concerned, and a decision by the State Administrative Tribunal to uphold a decision of the Department of Child Protection is appealable to the Court of Appeal).

Additional obligations for employers

Some jurisdictions also oblige employers to create, implement and provide to the authorities (sometimes automatically, sometimes upon request) policies and procedures for managing risks to children with whom they have contact. For example, in South Australia, employers who work in child-related areas must provide a “Child Safe Environment Compliance Statement” to the Department for Families and Communities. In the ACT, the Office of Regulatory Services may ask employers to provide information which demonstrates their child risk management strategies.