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The six Commissioners of the Royal Commission into Institutional Responses to Child Sexual Abuse

Working With Children Checks

The Royal Commission released the Working With Children Checks report in August 2015.

This report addresses paragraph (a) of the Letters Patent.

(a) what institutions and governments should do to better protect children against child sexual abuse and related matters in institutional contexts in the future.

Recommendations

The final recommendations in this report aim to strengthen the protection children receive through Working With Children Checks.

  1. State and territory governments should:
    1. within 12 months of the publication of this report, amend their WWCC laws to implement the standards identified in this report
    2. once the standards are implemented, obtain agreement from the Council of Australian Governments (COAG), or a relevant ministerial council, before deviating from or altering the standards in this report, adopting changes across all jurisdictions
    3. within 18 months from the publication of this report, amend their WWCC laws to enable clearances from other jurisdictions to be recognised and accepted.
  2. The South Australian Government should, within 12 months of the publication of this report, replace its criminal history assessments with a WWCC scheme that incorporates the standards set out in this report.
  3. The Commonwealth Government should, within 12 months of the publication of this report:
    1. facilitate a national model for WWCCs by:
      1. establishing a centralised database, operated by CrimTrac, that is readily accessible to all jurisdictions to record WWCC decisions
      2. together with state and territory governments, identifying consistent terminology to capture key WWCC decisions (for example, refusal, cancellation, suspension and grant) for recording into the centralised database
      3. enhancing CrimTrac’s capacity to continuously monitor WWCC cardholders’ national criminal history records
    2. explore avenues to make international records more accessible for the purposes of WWCCs
    3. identify and require all Commonwealth Government personnel, including contractors, undertaking child-related work, as defined by the child-related work standards set out in this report, to obtain WWCCs.
  4. The Commonwealth, state and territory governments should, within 12 months of the publication of this report:
    1. agree on a set of standards or guidelines to enhance the accurate and timely recording of information by state and territory police into CrimTrac’s system
    2. review the information they have agreed to exchange under the National Exchange of Criminal History Information for People Working with Children (ECHIPWC), and establish a set of definitions for the key terms used to describe the different types of criminal history records so they are consistent across the jurisdictions (these key terms include pending charges, non-conviction charges and information about the circumstances of an offence)
    3. take immediate action to record into CrimTrac’s system historical criminal records that are in paper form or on microfilm and which are not currently identified by CrimTrac’s initial database search
    4. once these historical criminal history records are entered into CrimTrac’s system by all jurisdictions, check all WWCC cardholders against them through the expanded continuous monitoring process.
Child-related work
  1. State and territory governments should amend their WWCC laws to incorporate a consistent and simplified definition of child-related work, in line with the recommendations below.
  2. State and territory governments should amend their WWCC laws to provide that work must involve contact between an adult and one or more children to qualify as child-related work.
  3. State and territory governments should:
    1. amend their WWCC laws to provide that the phrase ‘contact with children’ refers to physical contact, face-to-face contact, oral communication, written communication or electronic communication
    2. through COAG, or a relevant ministerial council, agree on standard definitions for each kind of contact and amend their WWCC laws to incorporate those definitions.
  4. State and territory governments should:
    1. amend their WWCC laws to provide that contact with children must be a usual part of, and more than incidental to, the child-related work
    2. through COAG, or a relevant ministerial council, agree on standard definitions for the phrases ‘usual part of work’ and ‘more than incidental to the work’, and amend their WWCC laws to incorporate those definitions.
  5. State and territory governments should amend their WWCC laws to specify that it is irrelevant whether the contact with children is supervised or unsupervised.
  6. State and territory governments should amend their WWCC laws to provide that a person is engaged in child-related work if they are engaged in the work in any capacity and whether or not for reward.
  7. State and territory governments should amend their WWCC laws to provide that work that is undertaken under an arrangement for a personal or domestic purpose is not child-related, even if it would otherwise be so considered.
  8. State and territory governments should amend their WWCC laws to:
    1. define the following as child-related work:
      1. accommodation and residential services for children, including overnight excursions or stays
      2. activities or services provided by religious leaders, officers or personnel of religious organisations
      3. childcare or minding services
      4. child protection services, including out-of-home care (OOHC)
      5. clubs and associations with a significant membership of, or involvement by, children
      6. coaching or tuition services for children
      7. commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions
      8. disability services for children
      9. education services for children
      10. health services for children
      11. justice and detention services for children, including immigration detention facilities where children are regularly detained
      12. transport services for children, including school crossing services
      13. other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles.
    2. require WWCCs for adults residing in the homes of authorised carers of children
    3. remove all other remaining categories of work or roles.
  9. State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each category of child-related work and amend their WWCC laws to incorporate those definitions.
Exemptions
  1. State and territory governments should amend their WWCC laws to:
    1. exempt:
      1. children under 18 years of age, regardless of their employment status
      2. employers and supervisors of children in a workplace, unless the work is child-related
      3. people who engage in child-related work for seven days or fewer in a calendar year, except in respect of overnight excursions or stays
      4. people who engage in child-related work in the same capacity as the child
      5. police officers, including members of the Australian Federal Police
      6. parents or guardians who volunteer for services or activities that are usually provided to their children, in respect of that activity, except in respect of:
        1. overnight excursions or stays
        2. providing services to children with disabilities, where the services involve close, personal contact with those children
    2. remove all other exemptions and exclusions
    3. prohibit people who have been denied a WWCC, and subsequently not granted one, from relying on any exemption.
  2. State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each exemption category and amend their WWCC laws to incorporate those definitions.
Offences
  1. State and territory governments should amend their WWCC laws to incorporate a consistent and simplified list of offences, including:
    1. engaging in child-related work without holding, or having applied for, a WWCC
    2. engaging a person in child-related work without them holding, or having applied for, a WWCC
    3. providing false or misleading information in connection with a WWCC application
    4. applicants and/or WWCC cardholders failing to notify screening agencies of relevant changes in circumstances
    5. unauthorised disclosure of information gathered during the course of a WWCC.
Criminal history information
  1. State and territory governments should amend their WWCC laws to include a standard definition of criminal history, for WWCC purposes, comprised of:
    1. convictions, whether or not spent
    2. findings of guilt that did not result in a conviction being recorded
    3. charges, regardless of status or outcome, including:
      1. pending charges – that is, charges laid but not finalised
      2. charges disposed of by a court, or otherwise, other than by way of conviction (for example, withdrawn, set aside or dismissed)
      3. charges that led to acquittals or convictions that were quashed or otherwise over-turned on appeal

      for all offences, irrespective of whether or not they concern the person’s history as an adult or a child and/or relate to offences outside Australia.

  1. State and territory governments should amend their WWCC laws to require police services to provide screening agencies with records that meet the definition of criminal history records for WWCC purposes and any other available information relating to the circumstances of such offences.
Disciplinary or misconduct information
  1. State and territory governments should amend their WWCC laws to:
    1. require that relevant disciplinary and/or misconduct information is checked for all WWCC applicants
    2. include a standard definition of disciplinary and/or misconduct information that encompasses disciplinary action and/or findings of misconduct where the conduct was against, or involved, a child, irrespective of whether this information arises from reportable conduct schemes or other systems or bodies responsible for disciplinary or misconduct proceedings
    3. require the bodies responsible for the relevant disciplinary and/or misconduct information to notify their respective screening agencies of relevant disciplinary and/or misconduct information that meets the definition.
Response to records returned
  1. State and territory governments should amend their WWCC laws to respond to records in the same way, specifically that:
    1. the absence of any relevant criminal history, disciplinary or misconduct information in an applicant’s history leads to an automatic grant of a WWCC
    2. any conviction and/or pending charge in an applicant’s criminal history for the following categories of offence leads to an automatic WWCC refusal, provided the applicant was at least 18 years old at the time of the offence:
      1. murder of a child
      2. manslaughter of a child
      3. indecent or sexual assault of a child
      4. child pornography–related offences
      5. incest where the victim was a child
      6. abduction or kidnapping of a child
      7. animal-related sexual offences.
    3. all other relevant criminal, disciplinary or misconduct information should trigger an assessment of the person’s suitability for a WWCC (consistent with the risk assessment factors set out below).
  2. State and territory governments should amend their WWCC laws to specify that relevant criminal records for the purposes of recommendation 20(c) include but are not limited to the following:
    1. juvenile records and/or non-conviction charges for the offence categories specified in recommendation 20(b)
    2. sexual offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b)
    3. violent offences, including assaults, arson and other fire-related offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b)
    4. child welfare offences
    5. offences involving cruelty to animals
    6. drug offences.
  3. The Commonwealth Government, through COAG, or a relevant ministerial council, should take a lead role in identifying the specific criminal offences that fall within the categories specified in recommendations 20(b) and 21.
Assessing risk
  1. State and territory governments should amend their WWCC laws to specify that the criteria for assessing risks to children include:
    1. the nature, gravity and circumstances of the offence and/or misconduct, and how this is relevant to children or child-related work
    2. the length of time that has passed since the offence and/or misconduct occurred
    3. the age of the child
    4. the age difference between the person and the child
    5. the person’s criminal and/or disciplinary history, including whether there is a pattern of concerning conduct
    6. all other relevant circumstances in respect of their history and the impact on their suitability to be engaged in child-related work.
  2. State and territory governments should amend their WWCC laws to expressly provide that, in weighing up the risk assessment criteria, the paramount consideration must always be the best interests of children, having regard to their safety and protection.
Eligibility to work while an application is assessed
  1. State and territory governments should amend their WWCC laws to permit WWCC applicants to begin child-related work before the outcome of their application is determined, provided the safeguards listed below are introduced.

Applicants

  1. applicants must submit a WWCC application to the appropriate screening agency before beginning child-related work and not withdraw the application while engaging in child-related work
  2. applicants must provide a WWCC application receipt to their employers before beginning child-related work

Other safeguards

  1. employers must cite application receipts, record application numbers and verify applications with the relevant screening agency
  2. there must be capacity to impose interim bars on applicants where records are identified that may indicate a risk and require further assessment
  1. State and territory governments that do not have an online WWCC processing system should establish one.
  2. State and territory governments should process WWCC applications within five working days, and no longer than 21 working days for more complex cases.
Clearance types
  1. All state and territory governments should amend their WWCC laws to specify that:
    1. WWCC decisions are based on the circumstances of the individual and are detached from the employer the person is seeking to work for, or the role or organisation the person is seeking to work in
    2. the outcome of a WWCC is either that a clearance is issued or it is not; there should be no conditional or different types of clearances
    3. volunteers and employees are issued with the same type of clearance.
Appeals
  1. All state and territory governments should ensure that any person the subject of an adverse WWCC decision can appeal to a body independent of the WWCC screening agency, but within the same jurisdiction, for a review of the decision, except persons who have been convicted of one of the following categories of offences:
    • murder of a child
    • indecent or sexual assault of a child
    • child pornography-related offences
    • incest where the victim was a child

    and

    1. received a sentence of full time custody for the conviction, such persons being permanently excluded from an appeal

    or

    1. by virtue of that conviction, the person is subject to an order that imposes any control on the person’s conduct or movement, or excludes the person from working with children, such persons being excluded from an appeal for the duration of that order.

    Notwithstanding the above any person may bring an appeal in which they allege that offences have been mistakenly recorded as applying to that person.

Portability
  1. Subject to the implementation of the standards set out in this report, all state and territory governments should amend their WWCC laws to enable WWCCs from other jurisdictions to be recognised and accepted.
Duration and continuous monitoring
  1. Subject to the commencement of continuous monitoring of national criminal history records, state and territory governments should amend their WWCC laws to specify that:
    1. WWCCs are valid for five years
    2. employers and WWCC cardholders engaged in child-related work must inform the screening agency when a person commences or ceases being engaged in specific child-related work
    3. screening agencies are required to notify a person’s employer of any change in the person’s WWCC status.
Monitoring compliance
  1. All state and territory governments should grant screening agencies, or another suitable regulatory body, the statutory power to monitor compliance with WWCC laws.
  2. All state and territory governments should ensure their WWCC laws include powers to compel the production of relevant information for the purposes of compliance monitoring.
  1. The Commonwealth, state and territory governments should:
    1. through COAG, or a relevant ministerial council, adopt the standards and set a timeframe within which all jurisdictions must report back to COAG, or a relevant ministerial council, on implementation
    2. establish a process whereby changes to the standards or to state and territory schemes need to be agreed to by COAG, or a relevant ministerial council, and must be adopted across all jurisdictions.
  2. The Commonwealth, state and territory governments should provide an annual report to COAG, or a relevant ministerial council, for three years following the publication of this report, to be tabled in the parliaments of all nine jurisdictions, detailing their progress in implementing the recommendations in this report and achieving a nationally consistent approach to WWCCs.
  3. COAG, or a relevant ministerial council, should ensure a review is made after three years of the publication of this report, of the state and territory governments’ progress in achieving consistency across the WWCC schemes, with a view to assessing whether they have implemented the Royal Commission’s recommendations.

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