Screening Checks (NSW) - A guide for New South Wales Community Organisations Dec 2020 - Not-for-profit Law
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Screening Checks (NSW) A guide for New South Wales Community Organisations Dec 2020
Screening Checks (NSW) | 2020 2
Contents
Introduction 4
Part 1 7
Legal obligations under Working with Children Checks ........................................................... 8
When are Working with Children Checks required by law? ............................................... 8
What is ‘child-related work’? ......................................................................................... 9
WWC Check Exemptions ................................................................................................ 10
Summary of an organisation’s Working with Children obligations ................................... 11
Part 2 13
Working with Children Check Applications .............................................................................. 14
How can employees or volunteers apply for a Working with Children Check? ................ 14
Applying for a WWC Check ........................................................................................ 14
Results of a WWC Check ........................................................................................... 15
When can a person begin child-related work once they have applied for a WWC
Check? ....................................................................................................................... 15
How much does a WWC Check cost? ........................................................................ 15
Should organisations pay the costs of WWC Checks for employees? ........................ 16
What do organisations have to do to ensure WWC Checks are in place? .................. 16
What if a new employee or volunteer already has a Working with Children Check card?16
Part 3 17
What does a Working with Children Check do?....................................................................... 18
What does a Working with Children Check do? .............................................................. 18
‘Clearance’ to work with children ................................................................................ 18
Risk assessment triggers ........................................................................................... 18
‘Bar’ against working with children.............................................................................. 19
Are there limits to what Working with Children Checks can achieve? ............................. 19
Part 4 20
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 3
Police Checks ............................................................................................................................. 21
Is the Working with Children Check different from a Police Check? ................................ 21
Part 5 24
NDIS Worker Screening Checks ................................................................................................ 25
Transition period for NDIS Worker Screening Checks ................................................ 25
Risk assessed roles.................................................................................................... 26
What does the NDIS Worker Screening Check include? ............................................ 26
NDIS provider record keeping requirements ............................................................... 27
Exceptions .................................................................................................................. 27
Interstate workers ....................................................................................................... 28
Part 6 29
Other checks ............................................................................................................................... 30
Discretionary background checks ................................................................................... 30
Screening for interstate and overseas employees and volunteers .................................. 30
WWC Checks ............................................................................................................. 30
Police Checks ............................................................................................................. 31
Child safety reforms and screening ................................................................................. 31
Becoming a ‘Child Safe Organisation’ ........................................................................ 31
The NSW Civil Liability Act ......................................................................................... 32
The NSW Children's Guardian Act ............................................................................. 33
National Framework for Protecting Australia’s Children ............................................. 34
Resources ................................................................................................................................... 35Screening Checks (NSW) | 2020 4 Introduction
Screening Checks (NSW) | 2020 5
Introduction
This part:
► introduces the reasons for conducting some level of screening for volunteers and
employees
► refers to child safety law reforms relevant to screening
It’s important that your organisation undertakes screening and induction of employees and
volunteers in a thorough and systematic way. Certain background screening checks are required by
law (under legislation or contract) and others are optional.
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.
Organisations should consider whether the volunteer or employee 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 and employees.
Example
A volunteer is sent to an elderly client’s home to assist with general household duties and
provide companionship. The volunteer seems trustworthy and the organisation decides not to
go ahead with any 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.
To avoid the risk posed to its elderly clients, the organisation should have carried out relevant
background checks, including a police check.
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 6 Note 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’s report on Working with Children Checks (WWCC Report) contains recommendations for the implementation of a nationally-consistent scheme. Visit the Royal Commission’s website for updates and reports. Tip It may be challenging for some organisations to appropriately screen spontaneous volunteers, especially where organisations are already managing significant workloads due to an emergency or other incident. Your organisation may consider having a database of registered volunteers to call on that have been appropriately screened, inducted and trained.
Screening Checks (NSW) | 2020 7 Part 1 Legal obligations under Working with Children Checks
Screening Checks (NSW) | 2020 8
Legal obligations under Working with
Children Checks
This part covers:
► when are Working with Children 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’s important to conduct appropriate screening procedures.
This guide deals with ‘Working with Children Checks’ (WWC Checks). The Child Protection (Working with
Children) Act 2012 (NSW) (WWC Act) requires a WWC Check to be undertaken by people 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.
Note
Your organisation may be required by law to ensure employees and volunteers have
undertaken a WWC Check. Your organisation 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.
When are Working with Children Checks required by law?
In New South Wales, most people 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.
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 9
What is ‘child-related work’?
A ‘child’ is defined in the WWC Act as any person under 18 years old.
A WWC Check will be required for people who provide the following work for your organisation (this
work is considered to be ‘child-related work’):
• 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
– transport services
or
• 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 to have the
position designated as ‘child-related’, for the purpose of requiring a WWC Check.
Tip
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 does not currently conduct 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, it is important to remember that checks
should only be undertaken that are relevant to the role.Screening Checks (NSW) | 2020 10
WWC Check Exemptions
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 ,
overnight camps 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 Check, 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 into 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
NSW Office of the Children’s Guardian for advice.
Caution
Just because a worker may fall into 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 before turning 18 (unless
another exemption applied).
The diagram below summarises the rules on when a WWC Check will be required for employees and
volunteers in New South Wales.Screening Checks (NSW) | 2020 11
When is a Working with Children’s Check necessary?
‘Direct contact’ with a child means:
1. Does the position involve direct contact with children in a • physical contact, or
child-related sector?
• face-to-face contact
Yes – go to question 3 No
2. Does the position involve work in a child-related role?
Yes No – WWC check not required
There are a number of exemptions
3. Does the employee or volunteer qualify for an exemption contained in the WWC Act.
under the WWC Act?
Yes - WWC check not required No
4. The employee or volunteer must apply for and pass a WWC
Check
Summary of an organisation’s Working with Children obligations
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 starting 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 don’t 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 the NSW Office of the Children’s Guardian website (sighting the number
is not enough), and
• employees or volunteers renew their WWC Check every five 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 conduct its own checks in this
regard. Your organisation must verify the new WWC Check application or clearance online within five
working days of the expiry date of the old WWC Check clearance.Screening Checks (NSW) | 2020 12
Caution
Due to COVID-19, WWC Checks that are due to expire between 26 March 2020 and 26
September 2020 are extended by 6 months. See the NSW Office of the Children’s Guardian
website for further details.
Tips
• 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, Samaritan and Better Impact).
• Organisations can use WWC Checks as 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 (NSW) | 2020 13 Part 2 Working with Children Check Applications
Screening Checks (NSW) | 2020 14
Working with Children Check
Applications
This part covers:
► how can employees or volunteers apply for a Working with Children Check?
► what happens if an applicant doesn’t 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.
How can employees or volunteers apply for a Working with Children
Check?
Applying for a WWC Check
Applications for a WWC Check are made to the NSW Office of the Children’s Guardian as follows:
• an application form must be completed online at the NSW Office of the Children’s Guardian website
• all personal details must be submitted in the online application form in the same form as they appear on
the applicant’s identity documents
• 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 Service NSW office or Government Access Centre with the application
number and their proof of identity document (e.g. driver’s licence or passport)
Tip
Make sure that all unpaid staff select that they are ‘volunteers’ on their WWC Check form as
this will exempt them from any application fee. If they move into paid work at a later date, they
do not need to apply for a new WWC Check, but can apply online to update their existing
WWC Check and pay the $80 application fee.
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 15
Results of a WWC Check
The results of a WWC Check application are sent 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 can’t be hired to work as a volunteer or paid worker with children. A ‘bar’
remains in place for five years. Your organisation will be notified if a ‘bar’ is issued in respect of any
volunteer or paid worker engaged by your organisation. Your organisation will be required to remove the
applicant from ‘child-related work’.
If a ‘clearance’ is issued, the applicant will receive a WWC Check number. A ‘clearance’ is valid for five
years (it can be renewed) and it can be used for more than one child-related role during the five-year
period.
Applicants that receive a ‘clearance’ will be subject to continuous monitoring by the NSW 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, this may trigger a risk assessment to be conducted by the NSW Office of the Children’s Guardian
in respect of the applicant and the ‘clearance’ may be revoked.
Tip
It’s essential that your organisation conduct 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 start
‘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 NSW Office of the Children’s
Guardian, in which case the applicant is not able to start ‘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’s 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 NSW 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
Tip
In most circumstances, if the WWC Check relates to employment, this expense may be
claimed as a deduction from taxable income.Screening Checks (NSW) | 2020 16 apply online to update their WWC Check and pay the $80 application fee (although they don’t need to file a new application for a WWC Check). An applicant is still considered a volunteer if they receive reimbursement for costs (as long as they are not paid for the work completed for your organisation). Should organisations pay the costs of WWC Checks for employees? There is no legal requirement for an organisation to cover the costs of an employee undertaking a WWC Check. However, some organisations choose to reimburse WWC Check applicants who will be working with the organisation. 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 the NSW Office of the Children’s Guardian website and then verify the status of the WWC Check of each volunteer or paid worker online. 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. What if a new employee or volunteer already has a Working with Children Check card? If an employee or volunteer engaged by your organisation claims to already have a WWC Check, your organisation has an obligation to verify the WWC Check status online. Your organisation can’t simply rely on a copy of any correspondence issued by the NSW Office of the Children’s Guardian in respect of an application.
Screening Checks (NSW) | 2020 17 Part 3 What does a Working with Children Check do?
Screening Checks (NSW) | 2020 18
What does a Working with Children
Check do?
This part covers:
► what does a Working with Children Check take into account?
► 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.
What does a Working with Children Check do?
A WWC Check assesses an applicant to determine whether the person poses a risk to children and should
not undertake ‘child-related work’.
When a WWC Check is submitted, the NSW 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.
These include criminal and common law offences as well as findings of sexual misconduct or serious
physical assault of a child.
Risk assessment
In conducting a risk assessment, the NSW Office of the Children’s Guardian must consider:
• factors relating to the conduct:
– seriousness (as demonstrated by details of the conduct, court outcome and penalty)
– length of time since it occurred
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 19
– 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
• factors relating to the applicant:
– conduct since the offence
– age at the time
– current age,
– any orders of a court or tribunal in force in relation to the applicant, and
– seriousness of total criminal records
• factors relating to recurrence:
– likelihood of the offences being repeated, and
– impact on children if the offences are repeated
The NSW 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.
Are there limits to what Working with Children Checks can achieve?
WWC Checks are only one way of reducing the risk of recruiting or associating with people 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.Screening Checks (NSW) | 2020 20 Part 4 Police Checks
Screening Checks (NSW) | 2020 21
Police Checks
This part covers:
► an overview of Police Checks, and
► the differences between WWC Checks and Police Checks
A WWC Check is an important check, but it’s 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.
Is the Working with Children Check different from a Police Check?
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 (those that may impact on the safety of children). Unlike
Police Checks, the WWC Check is ‘ongoing’, which means 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.
Caution
If you decide that applicants are required to undergo a police check before recruitment, you
must not refuse an applicant simply because they have a prior conviction 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.
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 22
How do Working with Children Checks and Police Checks differ?
Working with Children Checks (NSW) Police Checks
Who conducts The check is submitted to the NSW Office of The check is submitted to New South Wales
the check? the Children’s Guardian by the person. Police by the person or by an organisation on
their behalf (with consent).
What is • National criminal records (across all states National criminal records.
checked? 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 five years, with some
records triggering an automatic risk
assessment by the NSW Office of the
Children’s Guardian which may lead to the
clearance being revoked
• Depending on the records returned – the
NSW Office of the Children’s Guardian may
obtain information from any other relevant
source, including government and non-
government agencies, courts and the
Director of Public Prosecutions.
What is Convictions, findings of guilt without conviction, The Police make an assessment that takes into
revealed by charges (heard, unheard or dismissed), juvenile account the category and purpose of the check
the checks? records and intention to commit any of these and any relevant legislation and information
offences (attempting, conspiring, inciting to release policies. Police then determine the
commit). In other jurisdictions, the check only details they will release to the individual or
reveals (and an assessment made of) specific organisation requesting the check.
offences relevant to the safety of children. NSW
is arguably the strictest scheme in Australia, as The details released may include court
it also reveals other violent offences. outcomes with a finding of guilt, including those
‘without conviction’, good behaviour 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 engage There is no ‘pass’ or ‘fail’ – a list of court
outcome? in child-related work and issued a WWC Check outcomes with a finding of guilt is produced
or barred from engaging in such work and a from the national criminal record.
notification issued.
It is up to the organisation to assess whether or
The NSW Office of the Children’s Guardian will not any of the listed outcomes may impact on
undertake a risk assessment of the applicant’s the work of the volunteer.
eligibility to engage in child-related work if
relevant offences show up. Certain convictions
(or where there is a 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.Screening Checks (NSW) | 2020 23
Working with Children Checks (NSW) Police Checks
How long is it Five years. A bar also remains in place for five It is current only at the time of the check.
valid for? years.
Is it an Yes – over the five years there is a ‘rolling No – it is a ‘point in time’ check and will only list
ongoing check’ system and the organisation is notified if the offences at the time of the check.
check? the person’s status changes (ie. becomes
barred), so long as the organisation has verified
the employee or volunteer online at the Office
of the Children’s Guardian website.
Is the check Yes – to other New South Wales employment No – organisations should require a new check,
transferable? or volunteer roles. Your organisation must even if someone had a check completed
verify the WWC Check online. recently – as an organisation needs to be sure
that all relevant matters have been disclosed by
the police.Screening Checks (NSW) | 2020 24 Part 5 NDIS Worker Screening Checks
Screening Checks (NSW) | 2020 25
NDIS Worker Screening Checks
This part covers:
► Worker Screening Checks for NDIS providers
► transition period for NDIS Worker Screening Checks
► what does the NDIS Worker Screening Check include?
► record keeping requirements for NDIS providers
► exemptions from NDIS Worker Screening Checks
The NDIS Worker Screening Check is an assessment of whether a person who works, or seeks to work,
with people with a disability poses a risk to them. The assessment determines whether a person is cleared
or excluded from working in certain roles with people with a disability.
The requirements relating to Worker Screening Checks for registered NDIS providers are set out in the
National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (the Practice
Standards). Registered NDIS providers are responsible for ensuring that their workers have the necessary
clearances so that the Practice Standards are met.
On 1 February 2021, states and territories will start implementing the new nationalised NDIS Worker
Screening Checks as part of a uniform national approach to worker screening.
A NDIS Worker Screening Database will also be rolled out nationally, which will have a register of cleared
and excluded workers from all states and territories.
Currently states and territories have transitional and special arrangements in place which specify the
alternative checks and clearances that are acceptable before the national NDIS Worker Screening Check is
rolled out.
Transition period for NDIS Worker Screening Checks
As the transitional and special arrangements differ between the states and territories, if a worker has an
acceptable check in one state or territory, this is not portable to another state or territory. This means that
workers of registered NDIS providers delivering services and supports to people with disability in a number
of states or territories must have an acceptable check in each state or territory in which they work.
NSW began a transition period on 1 July 2018.
Acceptable checks – New South Wales
All registered NDIS providers delivering supports and services in New South Wales must ensure that any
person engaged in a ‘risk assessed role’ (explained below) has:
• a criminal record check done before 1 July 2018 and within the past four years showing the person
doesn’t have a conviction for a prescribed criminal offence within the meaning of the Disability Inclusion
Act 2014 (NSW)
• a criminal record check done between 1 July 2018 and before the end of the transition period, and within
the past two years showing the person does not have a conviction for a prescribed criminal offenceScreening Checks (NSW) | 2020 26
within the meaning of the Disability Inclusion Act 2014 (NSW), and the person has not subsequently had
a further criminal record check that had a different result, or
• if the person is engaged in a risk assessed role providing supports and services to children, a current
New South Wales WWC Check that was obtained before the end of the transition period
Registered NDIS providers delivering supports and services in NSW will need to register with the New
South Wales NSW Office of the Children’s Guardian in order to check and verify the status of a worker's
WWC Check or the status of their application for a WWC Check.
Risk assessed roles
Registered NDIS providers are responsible for identifying which roles are risk assessed roles, and making
sure that all workers in these roles have an NDIS Worker Screening Clearance or an acceptable check
under the transitional and special arrangements.
Under the Practice Standards, workers may only be engaged in a ‘risk assessed role’ if the worker has a
clearance, subject to the exceptions discussed below.
A risk assessed role includes:
• a ‘key personnel role of a person or an entity’ as defined in s 11A of the National Disability Insurance
Scheme Act 2013 (for example, a CEO, board member or other key personnel)
• a role for which the normal duties include the direct delivery of specified supports or services to a person
with a disability (see link for list of specified services and supports), and
• a role for which the normal duties are likely to require ‘more than incidental contact’ with people with
disability, which includes:
– physically touching a person with disability
– building rapport with a person with disability as an integral and ordinary part of the performance of
normal duties, or
– having contact with multiple people with disability as part of the direct delivery of a specialist disability
support or service, or in a specialist disability accommodation setting
Example
Lee works for a mobility equipment company that is a registered NDIS provider and delivers
mobility equipment to the homes of people with a disability. Lee provides training, support and
instructions to the customers as a standard part of his role. Lee’s registered NDIS provider will
need to ensure Lee has a Worker Screening clearance (or an acceptable check under the
transitional and special arrangements, explained below) as the nature of Lee’s contact with the
customer is likely to lead to Lee building rapport with the customer.
What does the NDIS Worker Screening Check include?
The NDIS Worker Screening Check will be conducted by NDIS worker screening units. The NDIS worker
screening unit makes the decision about whether a person is cleared, excluded or on an interim bar (in this
case further information will be required to determine whether the person will be cleared or excluded).
Registered NDIS providers will need to ensure they only engage workers who have a cleared status. The
NDIS Worker Screening Check will enable registered NDIS providers to engage a worker with a valid
clearance from any state or territory to deliver NDIS support and services in a risk assessed role.
The new NDIS Worker Screening Check will take into account:
• any police or government information (including convictions, current and pending charges)
• apprehended violence ordersScreening Checks (NSW) | 2020 27
• child protection information (included child protection orders)
• workplace misconduct (complaints or incident reporting)
• international police check (for persons who have worked overseas)
The check will then be submitted to the NDIS Worker Screening Database run by the NDIS Commission.
NDIS providers and individuals will need to apply to the NDIS Commission to access the information stored
on the database.
NDIS provider record keeping requirements
For each risk assessed role, registered NDIS providers are required to document:
• the title or other organisational identifier for the role
• the paragraph or paragraphs of the definition of risk assessed role (as contained in the Practice
Standards) that applies to the role
• a description of the role, and
• the date the role was assessed and the name and title of the person who made the assessment
When a new risk assessed role is identified, the written list of roles must be updated within 20 business
days of the identification or review of the risk assessed role.
For each risk assessed worker, NDIS providers are required to document:
• the full name, date of birth and address of the person
• the risk assessed role or roles in which the person engages
• if the worker may engage in a risk assessed role without an NDIS Worker Screening Clearance:
– the basis on which they may do so
– the start and end date of the period in which the exemption that allows them to work in a risk
engaged role applies
– the name of the person who supervises the worker during this period
• the worker’s NDIS Worker Screening Check application reference number
• the worker’s NDIS Worker Screening Check outcome expiry date
• whether the worker’s NDIS Worker Screening Clearance is subject to any decision which has the effect
that the registered NDIS provider may not allow the worker to engage in a risk assessed role, and the
nature of any such decision (for example, interim bar, suspension, exclusion)
• records relating to an interim bar, a suspension, an exclusion, or any action taken by the provider in
relation to these kinds of decisions in relation to any worker and
• allegations of misconduct against a worker with a check and the action taken by the registered NDIS
provider in response to that allegation
A record must be kept for seven years from the date the record was made.
Exceptions
A registered NDIS provider may engage a person in a risk assessed role who does not have an NDIS
Worker Screening Clearance if:
• the registered NDIS provider is subject to the transitional and special arrangements and is complying
with those arrangements
• the person is a school student on a formal work experience placement, provided the student is directly
supervised by another worker who has an NDIS Worker Screening clearance or acceptable check under
the transitional and special arrangements
• in some circumstances, the person has submitted an application for an NDIS Worker Screening Check,
provided the worker is ‘in the process of obtaining a clearance’ as defined by the Practice Standards. In
these circumstances, the registered NDIS provider must ensure that the worker is:
– appropriately supervised by a person with an NDIS worker screening clearance, and
– the NDIS provider implements a risk management plan in line with the requirements in the Practice
Standards.Screening Checks (NSW) | 2020 28
Interstate workers
Until the NDIS Worker Screening Check takes effect on 1 February 2021, a registered NDIS provider needs
to ensure that all workers who are required to work interstate have an acceptable check in each state or
territory where the worker is engaged in a risk assessed role to provide NDIS support and services.
Tip
Visit the NDIS Commission website to ensure your organisation is compliant with the Worker
screening transitional and special arrangements.Screening Checks (NSW) | 2020 29 Part 6 Other checks
Screening Checks (NSW) | 2020 30
Other checks
This part covers:
► other discretionary background checks
► managing volunteers and employees in or from other states and territories, and
► child safety law reform relating to background checks
Discretionary background checks
Even where there is no legal requirement that background checks be performed, organisations may choose
to conduct 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 people they select
as their representatives.
Caution
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, conducting 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.
Screening for interstate and overseas employees and volunteers
WWC Checks
Currently, WWC Checks are only valid for work in the state or territory in which they are 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 exemptions). If
members of your organisation are travelling to another state or territory outside 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.
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening Checks (NSW) | 2020 31
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’s likely that they will need a WWC Check for each state.
Note - 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 NSW Office of
the Children’s Guardian’s website.
Again, even if not required under legislation or a contract, if volunteers will likely have contact with children,
we strongly recommend that your organisation conduct thorough screening checks.
Note
It is important to check the applicable scheme in each state and territory and whether any
exemptions for interstate visitors apply.
Relevantly, The Royal Commission into Institutional Responses to Child Sexual Abuse‘s
2015 report on Working with Children Checks (WWCC Report) contains recommendations
around the implementation of a nationally-consistent scheme.
Police Checks
The Police Check will display all (releasable) court outcomes from all states and territories of Australia (see
part 4 of this guide for more detail).
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 Australian Government Department of Home Affairs website.
Child safety reforms and screening
Becoming a ‘Child Safe Organisation’
The NSW Office of the Children’s Guardian encourages any organisation that works 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.
The NSW Office of the Children’s Guardian 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 childScreening Checks (NSW) | 2020 32
Further reading
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 NSW Civil Liability Act
In 2018, the Civil Liability Amendment (Organisational Child Abuse Liability) Act 2018 (NSW) (Civil
Liability Amendment Act) amended the Civil Liability Act 2002 (NSW) (the Civil Liability Act) by
imposing a duty of care on organisations, which have responsibility for a child, to prevent child abuse
(physical or sexual) from occurring by a person associated with the organisation.
An organisation will have ‘responsibility for a child’ if they actually exercise care, supervision or authority
over a child, purport to do so, or are obliged by law to do so. This also includes organisations that delegate
this responsibility to another organisation (in whole or in part).
Related Not-for-profit Law resource
For more information about ‘duty of care’ and negligence law in general, see our fact sheet on
‘negligence’.
The Civil Liability Act makes clear that this obligation extends to a wide range of people that are involved in
the organisation's operations – office holders and officers (such as board members, public officers and
secretaries), employees, owners, volunteers and contractors.
If a child experiences child abuse, the organisation will have to prove they took reasonable precautions to
prevent the abuse in question from happening.
Organisations can be found ‘vicariously liable’ (that is, legally responsible) if an employee, or a person ‘akin
to an employee’ perpetrates child abuse. An organisation will be found vicariously liable if the organisation
placed the employee (or potentially a volunteer or independent contractor) in a situation or circumstance
that allowed the person to perpetrate the abuse.
A person ‘akin to an employee’
A person is ‘akin to an employee’ of an organisation if the person carries out activities as an
integral part of the activities carried on by the organisation and does so for the benefit of the
organisation.
This definition is wide enough to include volunteers and independent contractors.
This means organisations that have responsibility for children should put policies, procedures and safe
guards (such as appropriate screening processes) in place to ensure the prevention of child abuse. This is
because, in the event of an incident, it will be these policies, procedures and safe guards that will be
reviewed and scrutinized by a court to determine (taking into account the organisation’s size and resources)
whether an organisation took ‘reasonable precautions’.
If a child that your organisation has responsibility for is exposed to child abuse, and your organisation failed
to take reasonable precautions to prevent this from happening, a court could order that a remedy beScreening Checks (NSW) | 2020 33
provided to the person who has suffered damage as a result of your organisation’s actions (or failure to
act).
Related Not-for-profit Law resource
For more information about ‘duty of care’ and negligence law in general, see our fact sheet on
‘negligence’.
The NSW Children's Guardian Act
The Children’s Guardian Act 2019 (NSW) (Children’s Guardian Act) came into effect on 1 March 2020.
The Children’s Guardian Act was created to consolidate the key powers, functions and responsibilities of
the NSW Office of the Children’s Guardian and to implement recommendations from the Royal Commission
into Institutional Responses to Child Sexual Abuse.
The Children’s Guardian Act seeks to address any gaps in the protection of children in NSW and ensure
that the NSW Office of the Children’s Guardian has the power to detect, investigate and deal with potential
and actual threats to the safety and wellbeing of children.
The Children’s Guardian Act provides additional powers to the NSW Office of the Children’s Guardian and
places greater responsibility on organisations to report relevant conduct.
The primary functions of the Children’s Guardian Act are:
• it consolidates the powers, functions and responsibilities of the NSW Office of the Children’s Guardian in
a single act
• the NSW Office of the Children’s Guardian will now oversee and coordinate official community visitors in
relation to out-of home care for children (which was previously the responsibility of the NSW
Ombudsman)
• the NSW Office of the Children’s Guardian will now oversee obligations in relation to the employment of
children
• the NSW Office of the Children’s Guardian will now be responsible for the NSW Reportable Conduct
Scheme (which was previously the responsibility of the NSW Ombudsman)
The Children’s Guardian Act also made a number of amendments to how the Reportable Conduct Scheme
operates, including:
• religious bodies and agencies that engage contractors to work with children are now part of the
Reportable Conduct Scheme
• employees are obliged to report reportable allegations or reportable convictions regarding another
employee to the head of the entity and the NSW Office of the Children’s Guardian
• investigations or determinations made by a relevant entity must be prepared and provided to the NSW
Office of the Children’s Guardian within 30 days after the entity received a reportable allegation or
conviction
• certain matters are mandatory to consider for reportable allegations:
– the nature of the allegation
– any defence
– gravity of the alleged matters
– whether the conduct is in breach of professional standards, codes of conduct or ethical codes and
accepted community standards
• members of the Association of Independent Schools of NSW are now reporting bodies
• religious ministries, persons providing religion-based activities to children and registered psychologists
are now mandatory reportersYou can also read
