A Guide for New South Wales Community Organisations - August 2018 - Not-for-profit Law

 
A Guide for New South Wales Community Organisations - August 2018 - Not-for-profit Law
A Guide for New South Wales Community
                         Organisations

                          August 2018
An introduction to screening checks                                                            3
             Part 1 - Legal obligations under Working with Children Checks                                  5
                    When are Working with Children Checks required by law?                                  6
             What is ‘child-related work’?                                                                  6
                    WWC Check Exemptions                                                                    8
                    Summary of organisation’s Working with Children obligations                            11
             Part 2 - Working with Children Check Applications                                             12
                    How can employees or volunteers apply for a Working with Children Check?               13
                      Applying for a WWC Check                                                             13
                      Results of a WWC Check                                                               13
                      When can a person begin child-related work once they have applied for a WWC Check?   14
                      How much does a WWC Check Cost?                                                      14
                      Should organisations pay the costs of WWC Checks for employees?                      14
                      What do organisations have to do to ensure WWC Checks are in place?                  15
                    What if a new employee or volunteer already has a Working with Children Check card?    15
             Part 3 – What does a Working with Children Check do?                                          16
                    What does a Working with Children Check do?                                            17
                    Are there limits to what Working with Children Checks can achieve?                     18
             Part 4 – Police Checks                                                                        19
                    Does the Working with Children Check differ from a Police Check?                       20
             Part 5 – Other Checks                                                                         23
             1.     Discretionary background checks                                                        24
                    Screening for interstate and overseas employees and volunteers                         24
                      WWC Checks                                                                           24
                      International Police Checks                                                          25
                    Child safety reforms & screening                                                       25
             Resources                                                                                     27

Screening Checks                                                                                                2
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Screening Checks                                                                                 3
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It is important that your organisation undertakes screening and induction of volunteers in
             a thorough and systematic way. Certain background screening checks are required by law
             (under legislation or contract) and others are optional.
             This guide covers:
              Working with Children Checks (WWC Checks)
              Police Checks (sometimes called National Police Checks or Criminal Record Checks)
              interstate and overseas screening
              other types of screening checks, and
              recent child safety law reforms relevant to screening.
             Even where there is no legislative or contractual requirement that checks be performed, organisations
             ought to undertake some level of screening for volunteers and employees. This is because all
             organisations have a responsibility to ensure they maintain a safe environment for their employees,
             volunteers and clients. Due to this overarching duty of care, organisations should always try to be
             informed about the individuals they select as their representatives.
             Consider whether the volunteer will have unsupervised access to money or property, contact with
             vulnerable clients or children, access to sensitive information or whether they will be driving. This may
             influence the types of checks your organisation requires in order to minimise risks associated with
             your volunteers.

                  A volunteer is sent to an elderly client’s home to assist with general household duties and provide
                  companionship. As the volunteer is not engaged in ‘child-related’ work you do not ask them to
                  obtain a Working with Children Check. The volunteer seems trustworthy and so the organisation
                  decides not to go ahead with any other screening checks, including a Police Check. The volunteer steals
                  from the client and it turns out that she has a string of theft and burglary offences.
                  You send another volunteer to your client’s home as soon as you find out. The client has a health incident
                  and needs urgent medical attention. The volunteer freezes as he has not been trained in what to do in this
                  situation. He is traumatised by this incident. Your organisation could be in breach of its duties to both the
                  volunteer and client.

                  Currently, WWC Checks operate at a state or territory level. This means that a WWC Check is only
                  valid for work in the state or territory in which it is issued. There are certain allowances for interstate
                  volunteers. The Royal Commission into Institutional Responses to Child Sexual Abuse released its report on
                  WWC Checks (WWCC Report) on 17 August 2015, which contains recommendations for the implementation
                  of a nationally consistent scheme.

Screening Checks (NSW)                                                                                                            4
© 2018 Justice Connect. This information was last updated August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
Screening Checks (NSW)                                                                           5
© 2018 Justice Connect. This information was last updated August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
This section covers:

                        when are WWC Checks required by law?
                        exemptions from the requirement to get a Working with Children Check, and
                        summary of an organisation’s Working with Children obligations.

             Whenever your not-for-profit organisation is recruiting new team members or assigning
             new responsibilities, it is important to conduct appropriate screening procedures.
             This guide deals with ‘Working with Children Checks’ or WWC Check (as referred to in this guide). The
             Child Protection (Working with Children) Act 2012 (NSW) (WWC Act) requires a WWC Check to be
             undertaken by individuals who will be doing ‘child-related work’. Failure to comply with these
             requirements can result in serious penalties for both the organisation and the employee or volunteer
             who has failed to undertake the check.

                  Your organisation may be required by law to ensure employees and volunteers have undertaken
                  a WWC Check. It may also consider undertaking other checks such as police checks and reference
                  checks. You should ensure that only tests or checks relevant to the position on offer are required.
                  Decisions made on the results of checks not relevant to a role could be challenged by an applicant.

             In New South Wales, most individuals who perform ‘child-related’ work are required to undergo a WWC
             Check. If your organisation undertakes ‘child-related work’ then you should carefully consider whether
             employees and volunteers must complete a WWC Check.
             The NSW Office of the Children’s Guardian administers the WWC Check.
             The new WWC Check process, which phased in various industry sectors over five years, was completed
             on 31 March 2018. This means that all child-related industry sectors should now be registered under
             the new system. To learn more about your industry sector, see the Office of the Children’s Guardian
             fact sheet.

             What is ‘child-related work’?
             A ‘child’ is defined in the WWC Act as any person under 18 years old.

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A WWC Check will be required for persons who provide the following work for your organisation which
             is considered to be ‘child-related work’:

             1. A role which involves direct contact with children in one of these child-related industry sectors:
                      Mentoring and counselling services
                      Child protection services
                      Children’s health services
                      Clubs or other bodies providing services for children
                      Disability services
                      Early education and child care
                      Schools or other educational institutions
                      Sporting, cultural or other entertainment venues
                      Detention centres and juvenile correctional centres
                      Religious services
                      Residential services, and
                      Transport services.
                  OR

             2. One of the following child-related roles (defined further under the WWC Act):
                      An approved provider or manager of an education and care service
                      A certified supervisor of an education and care service
                      An authorised carer
                      An assessment officer
                      The principal officer of a designated agency
                      The principal officer of an accredited adoption service provider
                      An adult who resides in the home of an authorised carer

             If a worker is not involved in child-related work, but has access to confidential records or information
             about children, an employer may seek the approval of the NSW Office of the Children’s Guardian
             (Children’s Guardian) to have the position designated as ‘child-related’, for the purpose of requiring a
             WWC Check.

                  The Child Protection (Working with Children) Regulation 2013 (NSW) sets out specific types of work
                  that is and is not considered ‘child-related’ requiring a WWC Check.
                  Even if your organisation currently does not undertake child-related work, if you want to do this work in
                  future, you can consider requiring volunteers and employees to undertake a WWC Check when they join
                  your organisation. However, checks should only be undertaken that are relevant to the role.

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Where a volunteer or employee of a not-for-profit organisation falls into one of the exempt categories,
             they will not be required to undergo a WWC Check. This will be the case even where they are
             performing ‘child-related work’.
             Exemptions apply to workers or volunteers who:
              are children (under the age of 18)
              are a parent or close relative of a child (except where the work is part of a formal mentoring
               program or involves intimate, personal care of children with a disability) volunteering with a team,
               program or other activity in which the child usually participates or is a team member
              perform administrative, clerical, maintenance or ancillary work not ordinarily involving contact with
               children for extended periods
              perform very short-term work (for up to five days in a year) with minimal direct or unsupervised
               contact with children
              perform very short-term work as a visiting speaker, adjudicator, performer, assessor or other
               similar visitor for a one off occasion, in the presence of one or more other adults
              perform informal domestic work (not on a professional/commercial basis)
              work only with close relatives (except as an authorised carer)
              are co-workers and supervisors where a child works
              are interstate visitors working or volunteering for a period of up to 30 days in the same calendar
               year and either:
                     working or volunteering at one-off event such as, a sporting or religious event, or
                     working or volunteering - if the person holds an interstate WWC, or is exempt from the
                      requirement to have such a check in his or her home jurisdiction.
              are health practitioners working in NSW from interstate for less than five days in any three-month
               period
              are home carers with a current police certificate for aged care where the clients are not primarily
               children
              are NSW Police or Australian Federal Police officers in the role of police officer, or
              are private practice health practitioners who do not ordinarily treat children without other adults
               present.

             If an employee or volunteer falls within one of the exemptions, they are still eligible to apply for and
             receive a WWC Check. If you are in doubt about whether an exemption applies, we suggest that you
             contact the Office of the Children’s Guardian for advice.

Screening Checks (NSW)                                                                                                  8
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Just because a worker may fall within one of the WWC Check exemptions when starting out in a
                  role, when circumstances change, they may not be able to continue to rely on the exemption.
                  For example, a 17-year-old may be exempt when they begin work at a children’s day care facility, however
                  would be required to undergo a WWC Check prior to turning eighteen (unless another exemption applied).

             The following diagram summarises the rules on when a WWC Check will be required, by law, for
             employees and volunteers in New South Wales.

Screening Checks (NSW)                                                                                                       9
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1.    Does the position involve direct contact with                                ‘Direct contact’ with a child means:
                    children in a child-related sector?                                           Physical contact, or
                                                                                                    Face-to-face contact.

           Yes – go to Question 3                                   No

              2.    Does the position involve work in a child-related                            Relevant child-related roles can be
                    role?                                                                        found on page 7 of this guide.

                Yes                         No – WWC Check not required

              3.    Does the employee/volunteer qualify for an                                   There are a number of exemptions
                    exemption under the WWC Act?                                                 contained in the WWC Act. See
                                                                                                 page 8 of this guide for further
                                                                                                 details.

         Yes – WWC Check not required                                   No

              4.    The employee or volunteer must apply for a WWC
                    Check and receive a clearance to work with
                    children.

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An organisation that undertakes or supervises ‘child-related work’ must ensure that employees and
             volunteers comply with the WWC Act. This includes ensuring that:
              employees and volunteers who are required to undertake a WWC Check apply for the WWC Check
               before commencing work for which a WWC Check is required. In NSW, generally workers can start
                  child-related work once they have applied for a check – they do not need to wait for clearance
                  (however, see below)

              any applicant that receives an interim ‘bar’ does not, under any circumstances, engage in ‘child-
               related work’ until their application is assessed
              any applicant that receives a disqualification letter to undertaking ‘child-related work’ does not,
               under any circumstances, engage in ‘child-related work’
              employees or volunteers have applied for the correct type of WWC Check (ie volunteer vs
               employee)
              any WWC Check application number or WWC Check number (issued once the WWC Check has
               been completed) provided by an employee or volunteer to your organisation is verified by your
               organisation checking the number online at www.check.kids.nsw.gov.au (sighting the number is not
               enough). This links your organisation to the WWC Check so that you receive updates about its
               status), and
              employees or volunteers renew their WWC Check every 5 years – your organisation will not receive
               notification that a WWC Check is due for renewal as this is the responsibility of the employee or
               volunteer. Therefore your organisation must keep its own records and undertake its own checks in
               this regard. Your organisation must verify the new WWC Check application or clearance online
               within 5 working days of the expiry date of the old WWC Check clearance.

                      Your organisation may choose to wait until the check is complete before the worker starts
                      working with children.

                      There are a number of volunteer management software systems that may assist your organisation with
                      this process, ensuring thorough and systematic screening takes place (see Volgistics, eCoordinator and
                      Volunteer Impact).

                      Organisations can use WWC Checks as only one of several screening and monitoring tools. Reference
                      checks, national police checks and organisational supervision and training are all ways to ensure the
                      safety of staff and clients, as well as assisting in finding the most suitable applicant when recruiting.

Screening Checks                                                                                                                  11
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This section covers:

                        how can employees or volunteers apply for a Working with Children Check?,
                         and
                        what happens if an applicant does not pass a Working with Children Check?

             Applying for and maintaining WWC Checks takes a few steps by both the applicant and
             the organisation. This section provides an outline of the steps.

             Applying for a WWC Check
             Applications for a WWC Check are made to the Office of the                          Make sure that all unpaid staff
             Children’s Guardian as follows:                                                     select that they are ‘volunteers’
                                                                                                 on their WWC Check form as this
              an application form must be completed online at                                   will exempt them from any
               www.check.kids.nsw.gov.au                                                         application fee. If they move into
                                                                                                 paid work at a later date, they do
              all personal details must be submitted in the online application                  not need to apply for a new WWC
               form in the same form as they appear on the applicant’s                           Check, but can apply online to
               identity documents                                                                update their existing WWC Check
                                                                                                 and pay the $80 application fee.
              the application must indicate whether the WWC Check
               application is being made for a role as a volunteer or a paid worker (with an $80 application fee
               being payable in the case of a paid worker)
              after the application form has been submitted online the applicant will be issued with an
               application number, and
              the applicant must attend at a NSW Motor Registry, Government Access Centre or Service NSW
               office with the application number and their proof of identity document (eg. driver’s licence or
               passport).

             Results of a WWC Check
             The results of a WWC Check application are provided to the applicant by email. Applicants receive the
             result of either a ‘bar’ against working with children or a ‘clearance’ to work with children.
             A ‘bar’ means that the applicant cannot be hired to work as a volunteer or paid worker with children. A
             ‘bar’ remains in place for 5 years. Your organisation will be notified if a ‘bar’ is issued in respect of any

Screening Checks (NSW)                                                                                                                13
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volunteer or paid worker engaged by your organisation. Your organisation will be required to remove
             them from ‘child-related work’.
             If a ‘clearance’ is issued the applicant will receive a WWC Check number. A ‘clearance’ is valid for 5
             years (and can be renewed) and can be used for more than one child-related role during the 5-year
             period. Applicants that receive a ‘clearance’ will be subject to continuous monitoring by the Office of
             the Children’s Guardian to check if any new relevant criminal or workplace records are made against
             the applicant which might affect their ‘clearance’ status. If new relevant records are recorded against
             the applicant it may trigger a risk assessment to be undertaken by the Office of the Children’s
             Guardian in respect of the applicant and the ‘clearance’ may be revoked.
             It is essential that your organisation undertake an online verification so that it is notified of
             subsequent bars.

             When can a person begin child-related work once they have applied for a WWC
             Check?
             If your organisation carries out ‘child-related work’, your team members (paid and unpaid) are able to
             commence ‘child-related work’ once their application has been submitted and before the assessment
             has been completed and results have been issued.
             In some cases, ‘interim bars’ may be issued to high-risk applicants by the Office of the Children’s
             Guardian, in which case the applicant is not able to commence ‘child-related work’ while a risk
             assessment of their application is undertaken. An applicant can still be granted clearance after being
             subject to an interim bar.
             Your organisation should ask team members to provide the application number for the WWC Check
             once it has been lodged so that it can independently verify the status of the application to ensure it is
             in progress and that an interim or final ‘bar’ has not been issued. Once your organisation has
             conducted an online verification in respect of an application that is in progress or an applicant who
             has been ‘cleared’ for child-related work, the Office of the Children’s Guardian will notify you if the
             applicant is subsequently issued with a ‘bar’.

             How much does a WWC Check Cost?
             Applicants who undertake ‘child-related work’ as part of their employment need to pay $80 for their
             WWC Check application (the WWC Check is free for volunteers).
             There is no fee for volunteer applicants. Volunteers should ensure they select the ‘volunteer’ option of
             the WWC Check form. As soon as a volunteer becomes a paid employee or contractor, they are
             required to apply online to update their WWC Check and pay the $80 application fee (although they do
             not need to file a new application for a WWC Check). An applicant is still considered a volunteer if they
             receive reimbursement for costs, so long as they are not paid for the work completed for your
             organisation.

             Should organisations pay the costs of WWC Checks
             for employees?
                                                                                                 In most circumstances, if the
             There is no legal requirement for an organisation to cover the                      WWC Check relates to
             costs of an employee undertaking a WWC Check. However, some                         employment, this expense may
                                                                                                 be claimed as a deduction from
             organisations choose to reimburse WWC Check applicants who
                                                                                                 taxable income.
             will be working with the organisation.

Screening Checks (NSW)                                                                                                            14
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What do organisations have to do to ensure WWC Checks are in place?
             If your organisation engages volunteers or paid workers to conduct ‘child-related work’ it must register
             as an employer at www.check.kids.nsw.gov.au and then verify online the status of the WWC Check of
             each volunteer or paid worker.
             As your organisation is required by the WWC Check to ensure that required team members have a
             WWC Check it should keep proper records of the WWC Check number of each team member and the
             date on which that number was verified.
             Your organisation should set up a system to regularly verify online the WWC Check status of your team
             members to ensure that WWC Check ‘clearances’ have been renewed as required and have not been
             revoked. It is an offence for your organisation to engage a ‘barred’ worker for either paid or unpaid
             work.

             If an employee or volunteer engaged by your organisation claims to already have a WWC Check under
             the new system your organisation has an obligation to verify the WWC Check status online and not
             simply rely on a copy of any correspondence issued by the Office of the Children’s Guardian in respect
             of an application.
             An employee or volunteer is able to use a WWC Check secured under the new system for more than
             one employer.
             If the new WWC Check process has not yet been phased in for the industry in which your organisation
             operates then any of your existing employees or volunteers who hold a WWC Check under the old
             system do not need to apply for a WWC Check under the new system. However any new employees or
             volunteers do need to apply for a new WWC Check in which case your organisation will need to verify
             the WWC Check status online and ensure that a ‘clearance’ has been issued or a WWC Check
             application is ‘in progress’.
             Once the industry in which your organisation operates has been phased into the new WWC Check
             system any of your existing employees or volunteers who hold a WCC Check under the old system will
             need to apply online for a new WWC Check and your organisation will need to verify the WWC Check
             status online and ensure that a ‘clearance’ has been issued or a WWC Check application is ‘in
             progress’.

             .

Screening Checks (NSW)                                                                                                  15
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This section covers

                        what does a Working with Children Check take into account?, and
                        are there limits to what Working with Children Checks can achieve?

             The WWC Check is a unique type of check, distinguished from Police Checks by the
             different registers it checks, and its ongoing nature.
             Understanding how a WWC Check works will help your organisation determine what role they should
             play in your risk management strategy.

             A WWC Check assesses an applicant to determine whether the person poses a risk to children and
             should not be able to undertake ‘child-related work’.
             When a WWC Check is submitted, the Office of the Children’s Guardian undertakes a full review of:
              a person’s national criminal history (including convictions, charges and juvenile records) from
               CrimTrac
              any findings of misconduct by a reporting body, and
              any notifications made by the NSW Ombudsman.
             Both volunteer and paid workers are subject to the same level of checking as part of the WWC Check
             application process.
             ‘Clearance’ to work with children
             A ‘clearance’ to work with children will be issued where an applicant has no relevant records.
             Risk assessment triggers
             The WWC Act sets out several matters which, if they apply to the applicant, will require a risk
             assessment to be undertaken. These include criminal and common law offences as well as findings of
             sexual misconduct or serious physical assault of a child.
             Risk assessment
             In undertaking a risk assessment, the Office of the Children’s Guardian must consider the following
             factors:

             1. Factors relating to the conduct:
              seriousness (as demonstrated by details of the conduct, court outcome and penalty)

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 length of time since it occurred
              age and vulnerability of the victim
              relationship between offender and victim(s)
              age difference between offender and victim, and
              whether the offender knew or could have known the victim was under 18.

             2. Factors relating to the applicant
              conduct since the offence
              age at the time
              current age, and
              seriousness of total criminal records.

             3. Factors relating to recurrence
              likelihood of the offences being repeated, and
              impact on children of the offences being repeated.
             The Office of the Children’s Guardian must also take into account any information given in relation to
             the application and may also request further information from the applicant.
             ‘Bar’ against working with children
             The WWC Act also lists a number of criminal and common law offences which will automatically result
             in a ‘bar’ being issued to an applicant working with children without a risk assessment being
             undertaken.

             Remember that WWC Checks are only one way of reducing the risk of recruiting or associating with
             individuals who may be unsuitable for ‘child-related work’. No background check by itself can
             guarantee an individual’s suitability, and organisations should ensure that they have internal policies
             and procedures to ensure the safety of all those who interact with the group – particularly those in a
             position of vulnerability such as children.

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This section covers

                        an overview of Police Checks, and
                        the differences between WWC Checks and Police Checks.

             A WWC Check is an important check, but it is not the only check your organisation can
             undertake.
             As part of your risk management strategy, even if you must undertake WWC Checks, consider whether
             any further checks would also be appropriate.

             Yes. If a volunteer or employee is required to undertake a WWC Check, it will not matter whether they
             have recently had a police check as these two screening procedures are established for different
             purposes.
             The WWC Check focuses on specific offences (ie, those that may impact on the safety of children) and
             unlike police checks, the WWC Check is ‘ongoing’ meaning that the applicant’s criminal record is
             monitored throughout the life of the WWC Check.
             Your organisation may wish to conduct both WWC Checks and police checks depending on the nature
             of the work being conducted by your staff or volunteers. For example, not all criminal offences will be
             relevant for the WWC Check, and therefore a WWC Check will not show all offences.
             A police check allows an organisation to be aware of all previous convictions – child-related or not –
             and this may be appropriate if you are seeking an employee or volunteer who, for example, may be
             handling money or driving clients between locations.

                  If you decide that applicants are required to undergo a police check prior to recruitment, you must
                  not refuse an applicant simply because he or she has a prior conviction revealed for an offence that
                  has no relevance to the available position. There are legal protections against discrimination on the
                  basis of a criminal record. However, your organisation has obligations to create a safe and effective
                  environment, and you can refuse an applicant on the basis of a criminal past when you believe that the
                  prior offence prevents the applicant from performing the ‘inherent requirements’ of the position. See the
                  Australian Human Rights Commission website for more information.

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How do Working with Children Checks and Police Checks differ?

             WWC Checks and Police Checks satisfy different purposes and some of the key differences include:

                                            Working with Children Checks                         Police Checks
                                            (NSW)
                 Who conducts the           The check is submitted to the Office of the          The check is submitted to New South Wales
                 check?                     Children’s Guardian (OCG) by the                     Police by the individual or by an organisation
                                            individual.                                          on their behalf (with consent).
                                                                                                 Organisations may also engage a third party
                                                                                                 agency to manage the process.

                 What is checked?               National criminal records (across all           National criminal records.
                                                 states and territories) including:
                                                 convictions (spent or unspent)

                                                    charges (whether heard, unheard or
                                                     dismissed), and
                                                    juvenile records.
                                               Findings of misconduct by a reporting
                                                body and notifications made by the
                                                NSW Ombudsman
                                               Ongoing monitoring of the relevant
                                                individual for the next 5 years, with
                                                some records triggering an automatic
                                                risk assessment by the OCG which may
                                                lead to the clearance being revoked
                                               Depending on the records returned –
                                                the OCG may obtain information from
                                                any other relevant source, including
                                                government and non-government
                                                agencies, courts and the Director of
                                                Public Prosecutions.
                 What is revealed           Convictions, findings of guilt without               The Police make an assessment that takes
                 by the checks?             conviction, charges (heard, unheard or               into account the category and purpose of the
                                            dismissed), juvenile records and intention           check and any relevant legislation and
                                            to commit any of these offences                      information release policies. Police then
                                            (attempting, conspiring, inciting to commit).        determine the details they will release to the
                                            In other jurisdictions, the check only               individual or organisation requesting the
                                            reveals (and an assessment made of)                  check.
                                            specific offences relevant to the safety of          The details released may include court
                                            children. NSW is arguably the strictest              outcomes with a finding of guilt, including
                                            scheme in Australia, as it also reveals              those ‘without conviction’, good behaviour
                                            other violent offences.                              bonds and other court orders, outstanding
                                                                                                 charges, matters awaiting hearing and
                                                                                                 certain criminal traffic matters, whether
                                                                                                 child-related or not.
                 What is the                The applicant will either be cleared to              There is no ‘pass’ or ‘fail’ – a list of court
                 outcome?                   engage in child-related work and issued a            outcomes with a finding of guilt is produced
                                            WWC Check or barred from engaging in                 from the national criminal record.
                                            such work and a notification issued.                 It is up to the organisation to assess whether
                                            The OCG will undertake a risk assessment             or not any of the listed outcomes may impact
                                            of the applicant’s eligibility to engage in          on the work of the volunteer.
                                            child-related work if relevant offences show
                                            up. Certain convictions (or where there is a
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© 2018 Justice Connect. This information was last updated on August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
trial pending for these), will result in an
                                            automatic bar from engaging in child-
                                            related work. The applicant is provided
                                            with an opportunity to submit information
                                            affecting the final decision if a bar is being
                                            contemplated.
                 How long is it             5 years. A bar also remains in place for 5           It is current only at the time of the check.
                 valid for?                 years.
                 Is it an ongoing           Yes – over the 5 years there is a ‘rolling           No – it is a ‘point in time’ check and will only
                 check?                     check’ system and the organisation is                list the offences at the time of the check.
                                            notified if the person’s status changes (ie.
                                            becomes barred), so long as the
                                            organisation has verified the volunteer
                                            online at
                                            www.kidsguardian.nsw.gov.au/check
                 Is the check               Yes – to other New South Wales volunteer             No – organisations should require a new
                 transferable?              roles . Your organisation must verify the            check, even if someone had a check
                                            WWC Check online.                                    completed recently – as an organisation
                                                                                                 needs to be sure that all relevant matters
                                                                                                 have been disclosed by the police.

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© 2018 Justice Connect. This information was last updated on August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
This section covers

                        other discretionary background checks
                        managing volunteers and employees in or from other states and territories,
                         and
                        recent law reform relating to background checks.

             Even where there is no legal requirement that background checks be performed, organisations may
             choose to undertake some level of screening for volunteers and employees. This is because all
             organisations have a responsibility to ensure they maintain a safe environment for its employees,
             volunteers and clients. Due to this overarching duty of care, organisations should always try to be
             informed about the individuals they select as their representatives.

                    While finding the right person to fill a vacant role is important, an organisation has an
                    overarching duty to provide a safe environment for staff, volunteers and clients. Good screening
                    procedures when recruiting are a key way for organisations to try and address problems before they
                    arise.

             From a practical perspective, undertaking informal background checks, such as asking for referee
             details, is certainly a good way for an organisation to assure itself that it is making the right choice
             when recruiting a new employee or volunteer.

             WWC Checks
             Currently, WWC Checks operate at a state or territory level. This means that a WWC Check is only valid
             for work in the state or territory in which it is issued.
             Interstate visitors can engage in child-related work in New South Wales, without a New South Wales
             WWC Check, for a period of up to 30 days in the same calendar year as outlined above (under

Screening Checks (NSW)                                                                                                   24
© 2018 Justice Connect. This information was last updated on August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
exemptions). If members of your organisation are travelling to another state or territory outside of New
             South Wales and will engage in child-related work, you need to ensure that you comply with the laws of
             the particular state they visit – which may mean them applying for a valid WWC Check for that state.
             Generally, most states will recognise the WWC Check of a worker from another state, if they are
             visiting and working on a short-term basis. However, if your organisation’s employees or volunteers
             work in multiple jurisdictions on a regular basis, it is likely that they will need a WWC Check for each
             state. It is also worth pointing out that the offences considered relevant for the purposes of a WWC
             Check differ across states and territories. For more information about the schemes in other states and
             territories, see the Children’s Guardian website. See Resources, below.
             Again, even if not required under legislation or a contract, if volunteers will likely have contact with
             children, we strongly recommend that your organisation undertake thorough screening checks.

                  In 2012, all states and territories agreed on the above exemption for WWC Checks for interstate
                  Visitors. However, this has not been fully or consistently implemented. Therefore, it is important to check
                  the applicable scheme in each state and territory (see the information on ‘Interstate Visitors’ on the
                  Children’s Guardian website). Relevantly, The Royal Commission into Institutional Responses to Child
                  Sexual Abuse released its report on WWC Checks on 17 August 2015, which contains recommendations
                  around the implementation of a nationally consistent scheme.

             International Police Checks
             The Police Check will display all (releasable) court outcomes from all states and territories of Australia.
             If your organisation engages an employee or volunteer that has been living overseas, your organisation
             may decide to ask for an international police check, which can be obtained from the law enforcement
             body for each relevant country. Information on obtaining a police check from an overseas government
             or law enforcement authority can be found on the Home Affairs website at
             https://www.homeaffairs.gov.au/trav/visa/char.

             The NSW Office of the Children’s Guardian encourages organisations that work with children and
             young people to become a ‘Child Safe Organisation’ and it has published a number of resources in
             relation to implementing effective child safe policies and practices. It also runs a number of free
             information sessions and training in the community for this purpose providing information on:
              how organisations can become safer for children
              strategies for managing the risks associated with working with children such as introducing Codes
               of Conduct and a Child Safe Policy
              suggestions for organisations regarding recruiting and managing staff who work with children, and
              understanding the mandatory reporting obligations under the Children and Young Persons (Care
               and Protection) Act 1998 (NSW) with regard to suspected or actual neglect or abuse of a child.

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© 2018 Justice Connect. This information was last updated on August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
Moores, together with Our Community, have also created a Child Protection Toolkit for not-for-profit
                  organisations, to help them comply with these standards and other legislative requirements. The
                  Toolkit discusses child safe recruitment processes, creating a child safe culture and various reporting
                  obligations. It also includes a sample Child Protection Policy and Child Safety Code of Conduct (that can be
                  tailored to your organisation).

             The Council of Australian Governments (COAG) is also currently working towards law reform to
             harmonise the laws between states and territories.
             COAG has been working on a ‘National Framework for Protecting Australia’s Children 2009-2020.’ This
             is a broad, long-term initiative aimed at reforming the child protection system and creating uniform
             laws across states and territories. COAG aims to develop a nationally consistent approach to working
             with children checks and child safe organisations across jurisdictions. This is likely to include unifying
             the WWC Check system across our states and territories. Further reform and consolidation of
             legislation will help to establish an inter-jurisdictional exchange of information regarding people
             working with children.
             If new legislation comes into force, your organisation may need to comply with different rules
             regarding its employees and volunteers. It is important to be aware of the changes as they take place,
             and to ensure that your organisation continues to meet the legislative requirements.
             For more information, refer to Office of the Children’s Guardian website (see ‘Resources’, below).

Screening Checks (NSW)                                                                                                           26
© 2018 Justice Connect. This information was last updated on August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
Related Not-for-profit Law Resources
             The Not-for-profit Law Information Hub (www.nfplaw.org.au) has further resources on the following
             related topics:
                  The People Involved contains legal information relating to everyone involved in a community group.
                  Insurance and Risk contains legal information relating to managing risk in your organisation.

             Legislation
                  Child Protection (Working with Children) Act 2012 (NSW)
                  Child Protection (Working with Children) Regulation 2013 (NSW)

             Other Related Resources
                  NSW Commission for Children & Young People, NSW Office of the Children’s Guardian – Working
                  with Children Checks, see www.kidsguardian.nsw.gov.au/check
             The Office of the Children’s Guardian has published a number of fact sheets and other resources
             about the NSW WWC Check scheme, including a Sector Guide: Information for employers.
                  Volunteering Australia - Background Checks and Volunteers, see www.volunteeringaustralia.org
             Volunteering Australia has a resource which provides an overview of background check requirements
             and the associated costs across the various states and territories.
                  The Centre for Volunteering www.volunteering.com.au

             The NSW state peak body for volunteering provides information on volunteering and volunteer
             management.
                  New South Wales Police www.police.nsw.gov.au
             NSW Police has published a step-by-step guide on how to apply for a Police Check and an Information
             Sheet addressing Frequently Asked Questions in relation to the Police Check process here.
                  CrimCheck, www.crimcheck.org.au
             CrimCheck is a not-for-profit organisation that assists other not-for-profit organisations with the
             processing and management of police checks for their employees and volunteers along with general
             support and education around the process.
                  Australian Criminal Intelligence Commission, www.acic.gov.au
             The Australian Criminal Intelligence Commission (formerly CrimTrac) is the national information-
             sharing service provider for Australia's police, wider law enforcement and national security agencies, It
             offers a National Police Checking Service and has further information about the National Police Check
             process.
                  Department of Families, Housing, Community Services and Indigenous Affairs www.dss.gov.au
             Visit this website for the National Framework for Protecting Australia’s Children 2009–2020.

Screening Checks (NSW)                                                                                                   27
© 2018 Justice Connect. This information was last updated on August 2018 and does not
constitute legal advice, full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.
Contact us:
nfplaw@justiceconnect.org.au
NFP Law home:
justiceconnect.org.au/nfplaw
NFP Law legal information:
nfplaw.org.au

PO Box 16013
Melbourne VIC 8007
DX 128 Melbourne
Tel +61 3 8636 4400
Fax +61 3 8636 4455

GPO Box 863
Sydney NSW 2001
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Tel +61 2 9114 1793
Fax +61 2 9114 1792

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© 2018 Justice Connect. This information was last updated August 2018
and does not constitute legal advice, full disclaimer and copyright notice
at www.nfplaw.org.au/disclaimer.
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