The Law Handbook 2024

Chapter 3.9: Understanding criminal records 251 directed at, children, or whose membership is mainly comprised of children; • education and care services within the meaning of the Education and Care Services National Law Act 2010 (Vic); • educational institutions; • fostering children; • out-of-home care services, remand centres, youth residential centres, or youth justice centres within the meaning of the Children, Youth and Families Act 2005 (Vic) or probation services under that Act; • student exchange or homestay programs under Part 4.5A of the Education and Training Reform Act 2006 (Vic); • paediatric wards of public or private hospitals; • publicly funded or commercial transport services specifically for children; • refuges or other residential facilities used by children; • religious organisations; • school crossing services. Teachers and police officers are exempt from the checking system, as they are already subject to professional checks. Parents who volunteer in activities in which their children participate are also exempt from the checks. Despite this exemption, some schools adopt policies requiring parents to hold a working with children check to volunteer in such activities. Who will fail a check? People who have committed a relevant criminal offence, including child sex offences, or had a relevant disciplinary finding against them, cannot work with children. Not all criminal offences are considered relevant. Broadly, relevant offences are serious sexual, violent or drug offences. People who apply for a check are placed into three categories. Category A Category A applicants are people who: • are subject to reporting obligations under the Sex Offenders Registration Act 2004 (Vic); or • are subject to extended supervision orders or interim extended supervision orders under the (now repealed) Serious Sex Offenders Monitoring Act 2005 (Vic) (see the note about the repeal following); or • are subject to a supervision order or a detention order under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic); or • are subject to an emergency detention order under the Serious Offenders Act 2018 (Vic); or • have been charged with, or at any time been found guilty of, sexual offences against a child, including child abuse material offences, or the offences of murder or rape if the conduct occurred when the person was an adult. Refusal is mandatory for Category A applications with very limited exceptions. Note that despite the repeal of the Serious Sex Offenders Monitoring Act 2005 (Vic), any regulations under the old Act continue to apply in relation to an extended supervision order (including a suspended order) or interim extended supervision order until: • the order is revoked; or • a decision to make the order is quashed or set aside under section 39(1)(d) of the old Act; or • a supervision order or detention order is made in respect of the offender under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic). Category B Category B applicants are people who have been chargedwith or found guilty of certain serious offences listed in the WS Act (s 62 and schedule 4). Category B applicants are also those who have been excluded from child-related work under another working with children law for equivalent circumstances as the ones outlined in category B for applicants in the WS Act. Category B applications must be refused unless the Secretary of the Victorian Government Department of Justice and Community Safety (‘ DJCS Secretary ’) is satisfied that giving a WWC clearance would not pose an unjustifiable risk to the safety of children. In making this decision, the DJCS Secretary is required to consider a range of matters set out in the WS Act (s 63). Category C Category C applicants are people who: • have been subject to a relevant disciplinary or regulatory finding (e.g. by a professional conduct body such as the Victorian Civil and Administrative Tribunal under health practitioner legislation (before it was repealed);