17 / 3 / 2023

Working with Children Check

The Working with Children Check (WWCC) regime in New South Wales aims to support child safety by only allowing approved individuals to work in child-related work. The Child Protection (Working with Children) Act 2012 (NSW) (the Act) regulates the approval of these clearances.

Child related work is defined by section 6 of the Act as involving direct contact by the worker with a child or children and that contact is part of or more than incidental to the work. This includes but is not limited to work related to:

  1. Child development – mentoring or counselling services for children
  2. Child protection
  3. Children’s health serves
  4. Education
  5. Disability services – support services including respite care for children with a disability.
  6. Juvenile justice services
  7. Religious services

If a worker engages in child related work without a valid WWCC, they are liable to $11,000.00 and or up to 2 years imprisonment. Employers are responsible for ensuring their employees hold WWCCs or that there is a current application lodged. Unless cancelled, WWCCs are valid for five years.

Applying for a working with children check

The Office of the Children’s Guardian is the responsible authority that regulates WWCCs. Once the applicant has logged an application for a WWCC, an application triggers a ‘risk assessment’ if:

  1. The applicant has committed an offence (see schedule 1 of the Act for further information)
  2. The applicant has been the subject of a finding of misconduct involving children
  3. There has been a notification regarding reportable conduct of the applicant.

When conducting a risk assessment the Office of the Children’s Guardian considers:

  1. Whether the applicant has committed an offence specified in schedule 2 of the Act
  2. The nature and circumstances of that offence
  3. The subjective features of the applicant

While having a criminal history does not necessarily make an applicant ineligible for a working with children check, it may trigger a risk assessment.

If the OCG determines that the applicant poses a ‘risk to the safety of children’ they must not grant a working with children check.

What if an application for a clearance is refused?

The OCG must notify the applicant in writing if they decide to refuse the working with children check. If the applicant is not a disqualified person, they may then make a submission to the OCG prior to a final determination being made.

A disqualified person is an individual who has been previously convicted of an offence in Schedule 2 of the Act, if the offence was committed as an adult, or if proceedings against the individual for an offence specified in Schedule 2 of the Act are commenced.

The refusal notice will outline the reasons the applicant was refused and the process for review. The OCG will also notify anyone who is considered a ‘notifiable person’ this includes:

  1. The applicant’s employer or proposed employer for child related work
  2. The relevant decision maker if the applicant is a prospective guardian or adoptive parent.
  3. If the applicant resides on the same property as an authorised carer or where a family day care service is provided.

How can a WWCC be cancelled?

According to section 23 of the Act, the OCG is obligated to immediately cancel a WWCC if they become aware that the holder has become a disqualified person. The OCG must inform the holder, and any notifiable people, in writing of the cancellation.

The OCG may place a WWCC holder on an interim bar at any time if they determine that there is a likely risk to children posed by the holder or applicant while the OCG makes a decision on an application or risk assessment. An interim bar restricts the holder or applicant from engaging in child related work, living with an authorised carer, and living where a family day care service is provided.

Interim bars only cease to have effect when the OCG writes to the applicant or holder to indicate so, if the OCG comes to a determination on the associated application, or 12 months after the interim bar took effect.

Is there a right to appeal?

An applicant does not have the right to review if the individual has been convicted of an offence outlined in section 26(1)(a). These offences include but are not limited to: 

  1. Murder
  2. Offences against children
  3. Intention to commit offences against children
  4. Serious animal cruelty

Other applicants who have been refused may apply to the Civil and Administrative Tribunal for a review of the decision made by the OCG. The applicant must apply within 28 days after notice was given.

Chloe Woodward

1 Child Protection (Working with Children) Act 2012, s 3. 

2 Child Protection (Working with Children) Act 2012, s 8. 

3 Child Protection (Working with Children) Act 2012, s 17.