Understanding criminal records

Passing a working with children check (‘a check’) is a legal requirement for everyone in Victoria doing paid or voluntary child-related work who doesn’t qualify for an exemption. In broad terms, the ‘child-related work’ to which the check applies is work of a specified kind that usually involves direct contact with a child.

‘Direct contact’ means any contact between a person and a child that involves physical contact, face-to-face contact, contact by post or other written communication, contact by telephone or other oral communication, or contact by email or other electronic communication.

After passing a check, a person receives a working with children (WWC) clearance.

The Working with Children Act 2005 (Vic) was replaced with the Worker Screening Act 2020 (Vic) (‘WS Act’) on 1 February 2021. Under the WS Act, it is an offence to:

• engage in child-related work or volunteering without a current WWC clearance (s 121);
• apply for child-related work if a person has been given a WWC exclusion (s 122); or
• engage a person in child-related work without a WWC clearance (s 123).

These offences have a maximum penalty of two years in jail and/or a fine of up to 240 penalty units (see ‘A note about penalty units’ at the start of this book).

The checks are conducted by the Working with Children Check Unit of the Victorian Government Department of Justice and Community Safety and involve a national criminal history check and checks of findings from relevant professional bodies.

The checks are subject to ongoing monitoring, so if a person commits an offence after receiving a valid check, it will be revoked and the employer notified. A ‘working with children check’ card is issued once a check has been carried out.

The working with children check is free for volunteers and costs $121.10 for paid workers. Working with children check cards must be renewed every five years. It is free for volunteers to renew their cards, while paid workers must pay $91.70 to renew their cards (fees are current at 1 July 2021).

Under the WS Act, only people engaging in ‘child-related work’ must apply for and pass the working with children check. Not everyone whose work brings them into contact with children needs to apply for a check.

You need to apply for and pass the working with children check if:

• your work or volunteer role involves contact with children in connection with one of the listed child-related occupational fields (see below); and
• you volunteer/do this work on a regular basis; and
• you have direct contact with children under 18 years of age (even if directly supervised); and
• you do not qualify for an exemption from the need for a check.

The following child-related occupational fields have been established (s 7 WS Act):

• overnight camps for children;
• babysitting or childminding services arranged by a commercial agency;
• childcare services including centre-based long-day care, occasional care, family day care, in-home care, outside school hours care;
• child protection services;
• children’s services with the meaning of the Children’s Services Act 1996 (Vic);
• coaching or tuition services of any kind for children;
• commercial entertainment or party services for children;
• commercial gymnasium or play facilities for children;
• commercial photography services for children;
• commercial talent or beauty competitions for children;
• counselling or other support services for children;
• clubs, associations or movements (including of a cultural, recreational or sporting nature) that provide services or conduct activities for, or 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.

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 note below); 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 charged with, 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); 
• have been charged with, or at any time been found guilty of, certain offences listed in the WS Act (s 64 and schedule 4) or any other offence not listed.

Category C applications must be granted unless the DJCS Secretary is satisfied that:

• giving the WWC clearance would pose an unjustifiable risk to the safety of children; or
• a reasonable person would not allow their child to have direct contact with the person while they were engaged in any type of child-related work; or
• the person’s engagement in any type of child-related work would pose an unjustifiable risk to the safety of children.

In making this decision, the DJCS Secretary is required to consider various factors set out in section 65 of the WS Act.

A list of relevant offences for each category of applicant is on the Working with Children Check Unit website (www.workingwithchildren.vic.gov.au).

For more information about working with children checks, visit www.workingwithchildren.vic.gov.au.