Under the Working with Children legislation for each jurisdiction, people are prohibited from engaging in child-related work unless they have a relevant clearance to work with children; it is a criminal offence for an individual to engage in child-related work without the clearance. Local child protection authorities will consult the criminal history of applicants to determine whether clearance should be granted or refused.

Recent decisions by the NSW Civil and Administrative Tribunal (Tribunal) provide a useful case analysis of the circumstances in which a Working with Children Check (WWCC) may be refused in the context of a history of criminal offences.

NSW Case 1: DGQ v Childrens Guardian [2018] NSWCATAD 166

In a case heard on 2 August 2018, the Tribunal upheld the Office of the Children’s Guardian’s (OCG) refusal to grant a WWCC to DCQ.

DCQ applied for a WWCC on 4 January 2017, primarily so that he could engage in activities at his local church that require participants to hold a WWCC. DCQ also gave evidence that if he was granted a WWCC he may wish to coach a rugby league team and drive a bus. The WWCC had been refused on the basis that DCQ was a ‘disqualified person’ under section 18 of the Child Protection (Working with Children) Act 2012 (NSW) (WWC Act).

DCQ had previously been found guilty of two counts of assault with act of indecency under section 61L of the Crimes Act 1900 (NSW). The offences occurred in 1994 on the same day, when DCQ touched two women inappropriately in a hotel bar while heavily intoxicated. The offences were found to be proven and no conviction recorded. However, the term ‘conviction’ for the purposes of being a ‘disqualified person’ includes a finding that a charge has been proven or that a person is guilty of an offence, even if it does not proceed to conviction.

On 5 December 2017, DCQ applied for an enabling order from the Tribunal that he not be treated as a ‘disqualified person’. If the order was granted, it would enable DCQ to work in any child-related work or role. He had sought a similar order in 2018 under the predecessor to the WWC Act to work as a bus driver, but this was dismissed.

The Tribunal reasoned that its jurisdiction is protective and not punitive, on the basis that the object of the WWC Act is to protect children by not permitting certain persons to engage in child-related work and requiring persons engaged in child-related work to have WWCCs.

In any proceedings where an enabling order is sought, it is presumed, unless the applicant proves to the contrary (on the balance of probabilities) that the applicant poses a risk to the safety of children. The Tribunal applied a definition of ‘risk’ in this context as referring to ‘a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child’. Risk specifically excludes minimal risk and fanciful or theoretical risk but must be considered in relation to the safety of children.

When dealing with an application for an enabling order, the Tribunal must consider a number of factors, including the seriousness of the relevant offences, the time which has passed since the offences were committed, and the person’s age at the time.

On the balance of the evidence, the Tribunal found that DCQ had not discharged the onus of rebutting the presumption of risk. DCQ did not present any relevant/current evidence from medical/health professionals that rebutted the presumption. The previous medical opinion provided in 2008, which was not challenged, was that DCQ posed a ‘moderate risk of reoffence’ and a ‘likely low to moderately low’ risk of committing a sexual offence, and this was considered an unacceptable level of risk. Other factors taken into consideration include that DCQ had not seen a psychologist for more than 10 years and failed to produce evidence supporting his claim that he was not taking illicit drugs.

NSW Case 2: BVT v Children's Guardian (No. 4) [2018] NSWCATAD 153

In another case heard on 19 July 2018, the opposite decision was made, with an enabling order granted, such that the applicant, BVT, was to not be treated as a ‘disqualified person’ and requiring the OCG to grant him a WWCC.

BVT applied for a WWCC on 5 September 2013, so that he could have unsupervised access with the granddaughter of his partner and have overnight stays with them. The WWCC was refused, on the basis that BVT was a ‘disqualified person’. BVT had been convicted in 1973 of the offence of assault with intent to rape. BVT pleaded guilty and was sentenced to five years’ imprisonment, was released after 18 months but breached his parole and returned to prison to serve the remainder of the sentence.

This was the third time that the Tribunal had heard BVT’s application. BVT had previously sought an enabling order, but the application was refused on 13 January 2016. That decision was appealed to the NSW Supreme Court, which allowed the appeal and set aside the Tribunal’s decision, remitting the application for re-determination. The application was again refused in April 2017, successfully appealed, and the matter remitted to the Tribunal.

In the current matter, the OCG supported BVT’s application to be granted a WWCC.

On the balance of the evidence and employing the same reasoning process as in the DCQ case above, the Tribunal found that BVT had discharged the onus of rebutting the presumption that he is a risk to children. Particular weight was placed on an updated psychological report given in March 2018 which found that BVT presented a risk to child safety commensurate with the risk of any adult member of the community (i.e. a non-offender), with a low risk of engaging in future sexual offending. The Tribunal placed weight on several other factors, including:

• almost 45 years had passed since the offence took place and there was an extended period of non-offending
• BVT had been a young adult at the time of the disqualifying offence
• stability had been brought to BVT’s life through his 30-year relationship with his partner and his sobriety of more than 10 years.

The cumulative effect of these factors led to “an inference of successful rehabilitation”.

Decisions in Other Jurisdictions

The approach taken in Tribunals in other jurisdictions to these kinds of applications varies in accordance with the relevant WWCC legislation, including the extent to which a risk to child safety is considered unjustifiable/unacceptable. However, each Tribunal undertakes a process of balancing the evidence to determine whether it is in the best interests of child wellbeing for the application to be granted.

Queensland: Brown v Director-General, Department of Justice and Attorney-General [2018] QCAT 223

The Tribunal confirmed an original decision to issue a Negative Notice (a notice that prohibits the person from working with children). Brown had been convicted of burglary and other serious assault charges in March 2018. The case was not considered to be an exceptional one (that it would not harm the best interests of children for a Positive Notice to be issued), even though Brown was considered unlikely to pose any risk to children.

Victoria: McIntyre v Secretary to the Department of Justice and Regulation (Review and Regulation) [2018] VCAT 1041

The Tribunal directed that a WWCC be granted. McIntyre’s offence occurred 28 years ago for sexual penetration of a 13-year-old, who had been his girlfriend at the time, and he pleaded guilty and was placed on a good behaviour bond without conviction. Further unrelated offences occurred 14 years ago. While there was no psychological assessment, the Tribunal found there wasn't an 'unjustifiable risk' to the safety of children and it was in the public interest for McIntyre “to engage in meaningful work which he enjoys and to contribute to the community”.

Australian Capital Territory: Applicant 032018 v Commissioner for Fair Trading (Occupational Discipline) [2018] ACAT 77

The Tribunal confirmed the decision to issue a Negative Notice. The applicant had been casually employed as a tutor at the Australian National University, and had convictions recorded from 1965-1992, including several offences of sexual assault and indecent dealings with ten female students while he was employed as a Western Australian primary school teacher. A psychological report found the applicant to present a low-level risk of reoffending but that he shouldn’t be permitted to work with children “for the sake of abundant caution”. The Tribunal found the applicant posed an unacceptable risk of harm to a vulnerable person.

Significance for Schools

These decisions highlight the various factors that Tribunals may take into account when considering whether to grant applications for WWCCs from individuals that have been refused clearance by a child protection authority due to their previous criminal history.

Schools should expect greater uniformity in the WWCC system as state/territory governments implement responses to the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission). In its response to the Royal Commission’s Final Recommendations, the Australian Government expressed support for greater national consistency of WWCC schemes and said that it will act in a leadership role to progress nationally consistent standards.

In every jurisdiction, it is an offence for an employer to engage, or continue to employ, a person if they know or reasonably believe that the person does not have a WWCC. This means that it is paramount for schools to have recruitment processes in place which provide for effective background screening for all individuals engaging in child-related work.

Regardless of the local school community factors or circumstances of the particular employee/volunteer, the decision as to whether an individual is appropriate to work with children, and whether an individual who has previously offended has been successfully rehabilitated, is for determination by child protection authorities and Tribunals.