Working with Children Checks in South Australia – what you need to know

In August 2016, the Honourable Margaret Nyland AM delivered the Child Protection Systems Royal Commission Report.  As a legislative response to several recommendations outlined in that report, South Australia introduced amended legislation regarding the screening process for those who wish to work, or volunteer, with children.

These laws require these people to undertake an assessment known as a Working with Children Check (WWCC).  For example, paediatricians, teachers, childcare workers, child support workers, school psychologists and school sporting coaches are required to undertake a WWCC assessment for the purposes of their employment, and must do so at least every five years.

What is a WWCC?

Upon application by a person to the Central Assessment Unit (Unit), the Unit will undertake a WWCC assessment to determine whether that person poses an unacceptable risk to children.  As a part of the assessment, the Unit is empowered under the Child Safety (Prohibited Persons) Act (Act) to consider certain information (referred to as “assessable information”) in order to determine whether a person poses an unacceptable risk to children.

On completing a WWCC in respect of a person, the Unit must determine whether the person is, or is not, to be prohibited from working with children.

The primary object of the screening process is to minimise the risk to children by persons who work with them.  The task to be undertaken is entirely protective.  Importantly, the process is not concerned with the impact of a prohibited outcome on the WWCC applicant, regardless of how devastating to their personal and/or professional life.

What is “assessable information”?

The Act provides the Unit with broad powers to gather assessable information to assist with its determination of whether a WWCC applicant poses an unacceptable risk to children.  The Registrar of the Unit is able to compel public sector agencies and specified persons to produce information to the extent it is reasonably required to conduct a WWCC assessment.

For the purposes of the Act, assessable information in relation to an applicant includes information relating to criminal offences of which the person has been found guilty.  The definition of assessable information also includes information that relates to offences with which the person has been charged, or offences with which the person has previously been charged.

Many WWCC applicants are surprised to learn that the Unit may have regard to such information, regardless of the outcome of the charges and regardless of the outcome of any proceedings.  In other words, the Unit may consider and place significant weight on information relating to criminal offences of which the person has been found not guilty following a trial.  Likewise, the Unit may consider information relating to charges laid and subsequently discontinued by a prosecuting authority or dismissed by a Court.

Assessable information also includes information relating to disciplinary proceedings (regardless of the outcome of any such proceedings), child protection information (including, for example, investigations undertaken by the Department for Child Protection) and information obtained from other public sector agencies.

Upon receiving assessable information in relation to an applicant, the Unit must inform the applicant of that information and provide the applicant with an opportunity to make submissions in relation to it.  The Unit must then have regard to those submissions when assessing whether the person is, or is not, to be prohibited from working with children.  It is not always easy to respond to assessable information.  Of course, every case falls on its own facts.  If in doubt, it is prudent for an applicant to seek legal advice in relation to their own unique set of circumstances.

What is a presumptive disqualification offence?

The Act also provides a list of criminal offences defined as presumptive disqualification offences.  If a person is charged with, or found guilty of, one or more presumptive disqualification offences, the Unit presumes that the person poses an unacceptable risk to children.  A person presumed to pose an unacceptable risk to children must be prohibited from working with children unless they can satisfy the Unit that exceptional circumstances exist such that the person does not appear, or no longer appears, to pose an unacceptable risk to children.

Interestingly, presumptive disqualification offences do not always require a child-related element.  For example, trafficking in a controlled drug is declared by the Act to be a presumptive disqualification offence.  In other words, the Unit will presume that a person charged with a drug trafficking offence poses an unacceptable risk to children.

Exceptional circumstances are unique to each individual and there is no objective test to be applied.  Accordingly, it is very important for a WWCC applicant charged with, or found guilty of, one or more presumptive disqualification offences to obtain legal advice to ascertain whether an exceptional circumstances submission is warranted.

What is the effect of a WWCC prohibition notice?

If the Unit determines that a WWCC applicant poses an unacceptable risk to children, it will issue the applicant with a WWCC prohibition notice, with the effect that the person is prohibited from working with children.

A WWCC prohibition notice will remain in force until it is revoked in accordance with the Act.  Revocation of a WWCC prohibition notice may occur on the Unit’s own motion.  It may also occur by application of the prohibited person, provided that the Unit is satisfied that there is fresh and compelling assessable information that, if assessed in the course of the original WWCC assessment, would have affected the determination to prohibit the person from working with children.  The Unit may refuse to consider a revocation application if it has previously considered a revocation application within the preceding five years.

As such, some WWCC prohibition notices may remain in force for a lengthy period of time.  Some WWCC prohibition notices may remain in force indefinitely.

The important lesson

The impact of a prohibition notice on the life of a person engaged in child-related work can be crushing.  It is therefore very important that WWCC applicants who are provided with an opportunity to respond to assessable information, or invited to establish exceptional circumstances, are assisted to do so in a compelling and persuasive way, in line with the objects of the Act.

If you need any assistance or advice about what to do next because you have been contacted about assessable information contact TGB Associate, Hanna Rogers at 8212 1077 or hrogers@tgb.com.au.