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• Employer guidelines
  • Introduction
  • 1. Do you provide child-related employment?
  • 2. Your obligations as an employer
  • 3. Step-by-step guide
  • 4. Relevant employment proceedings
  • 5. Background information
  • 6. Forms
  • Glossary
• Prohibited employment
• Background checks
• FAQs
• Employer-related bodies
• Child-safe child-friendly
• Offender Counsellors
• Commitment to service

5.1   What are other employment screening options?

You can find out more about a preferred applicant by conducting thorough reference checks with people who have worked with them before, or who know them well. Further information on conducting reference checks is available in the Commission for Children and Young People's Child-safe Child-friendly resources.

People who are not in child-related employment can apply for a National Criminal History Record Check through NSW Police on a fee-for-service basis. Employers should advise the person to go to their local Police Station if they wish to make an application.

People who are in child-related employment, but are not eligible for the Working With Children background check can apply to NSW Police for access to their personal information, including NSW criminal records, under the Freedom of Information Act 1989.. Further information is available from the NSW Police website at www.police.nsw.gov.au.

5.2   Maintaining confidentiality

You must keep all information regarding the Working With Children Check confidential.

Any information you obtain should only be provided to people who are authorised to see such information, and only if they need to see it.

It is an offence to disclose information obtained as part of the Working With Children Check, except in specified circumstances. For more information on the offences and penalties, go to What are the offences and penalties?

In addition, all NSW public sector agencies, including local government organisations, are required to treat personal information in accordance with the information protection principles in Privacy and Personal Information Protection Act 1998 subject to applicable exemptions.

If you are a non-government organisation, any personal information relating to prohibited persons and Working With Children background checks that you collect and hold should follow the Information Protection Principles in the Privacy and Personal Information Protection Act 1998 .

These principles relate to:

• the manner and purpose of collecting personal information;
• asking or persuading individuals to provide personal information;
• the storage and security of personal information;
• information relating to records kept by the record keeper;
• accessing records containing personal information;
• altering records containing personal information;
• checking the accuracy, etc of personal information before use;
• limits on use of personal information; and
• limits on disclosure of personal information.

You will find more information about these principles from Privacy NSW (Office of the Privacy Commissioner) at www.lawlink.nsw.gov.au/pc.

If a person feels that their privacy has been breached they should complain to the employer first. If they are not satisfied with the employer's response they can make a complaint to Privacy NSW or the Office of the Federal Privacy Commissioner, depending on the type of employer they are making the complaint about. More information on how to make a complaint regarding breach of privacy is available from Privacy NSW.

5.3   What are the offences and penalties?

Proceedings can be bought against a person at any time for up to two years after any of the following offences are committed under the Commission for Children and Young People Act 1998:

• a prohibited person applying for, undertaking or remaining in child-related employment;
• engaging anyone in child-related employment without requiring them to disclose whether they are a prohibited person;
• not undertaking the Working With Children background check as required under the Commission for Children and Young People Act 1998:
• failing to notify the Commission for Children and Young People of a rejected applicant for child-related employment;
• failing to notify the Commission for Children and Young People of a relevant employment proceeding;
• breaching confidentiality; and
• failing to produce information when requested by the Commission for Children and Young People.

5.3.1        Prohibited persons

It is an offence for a prohibited person to apply for or otherwise attempt to obtain, undertake or remain in child-related employment. A person found guilty of any of these offences may be imprisoned for two years and/or fined.

It is an offence to engage anyone in child-related employment without requiring them to disclose whether they are a prohibited person. It is also an offence to employ, or continue to employ a person you know is a prohibited person, in child-related employment. A person or corporation found guilty of any of these offences may be fined.

However, it is not an offence for a person employed in child-related employment before 2 January 2007 who had previously been convicted of a child-related personal violence offence to remain in that employment. It is also not an offence for you to continue to employ such a person.

It is an offence to knowingly make a false statement in response to a request relating to a person's status as a prohibited person. A person found guilty of this offence may be imprisoned for 12 months and/or fined.

For further information on prohibited persons go to Prohibited persons.

5.3.2        Not undertaking the Working With Children background check

If you do not undertake the Working With Children background check as required under the Commission for Children and Young People Act 1998, the Commission for Children and Young People may serve you with an enforcement notice.

It is an offence not to comply with the requirements of an enforcement notice without a reasonable excuse. The maximum penalty for not complying is imprisonment for six months and/or a fine.

For further information go to Do you need to do Working With Children background checks?

5.3.3        Failing to notify the Commission for Children and Young People of a rejected applicant for child-related employment

If you fail to notify the Commission for Children and Young People of the details of a person whose application for child-related employment has been rejected due to an estimate of risk, the Commission may serve you with an enforcement notice.

It is an offence not to comply with the requirements of an enforcement notice without a reasonable excuse. The maximum penalty for not complying is imprisonment for six months and/or a fine.

For further information go to When to notify the Commission for Chidren and Young People about your employment decision.

5.3.4        Failing to notify the Commission for Children and Young People of a relevant employment proceeding

If you do not notify the Commission for Children and Young People of the name and other relevant identifying particulars of any employee (either paid or unpaid) against whom relevant employment proceedings have been completed since 3 July 1995, you may be served with an enforcement notice.

It is an offence not to comply with the requirements of an enforcement notice without a reasonable excuse. The maximum penalty for not complying is imprisonment for six months and/or a fine.

For further information on your obligations to notify relevant employment proceedings, including matters which do not need to be notified, go to Relevant employment proceedings.

5.3.5        Breaching confidentiality

It is an offence to disclose any information obtained as part of the Working With Children Check, unless the disclosure is:

• made in good faith for the purposes of the Working With Children Check; or
• made with the consent of the person to whom the information relates; or
• ordered by a court or other judicial body; or
• made with other lawful excuse, for example, you are compelled to provide information to police for law enforcement purposes.

It is also an offence to dishonestly obtain confidential information relating to the Working With Children Check.

A person found guilty of any of these offences may be imprisoned for six months and/or fined.

For further information go to Maintaining confidentiality

5.3.6        Failing to produce information when requested by the Commission for Children and Young People

The Commission for Children and Young People may issue you with a notice requiring you to provide the Commission with information or documents relating to the Working With Children Check. This information is collected only for the purposes of undertaking an estimate of risk or monitoring and auditing.

It is an offence not to comply with this notice without a reasonable excuse. It is also an offence to knowingly provide the Commission for Children and Young People with information that is false or misleading. A person found guilty of either of these offences may be fined.

5.4   What records are checked in the Working With Children background check?

There are three types of records considered in the Working With Children background check: relevant criminal records, relevant apprehended violence orders (AVOs) and relevant employment proceedings.

5.4.1        Relevant criminal records

A relevant criminal record is a criminal record of a person with respect to a charge or conviction for:

• any sexual offence (including but not limited to, sexual assault, acts of indecency, child pornography, child prostitution and carnal knowledge);
• any assault, ill treatment, neglect of, or psychological harm to, a child;
• any registrable offence;          
• offences of attempting, or of conspiracy or incitement, to commit any of the above offences;
• and if any offence above was:
• committed in New South Wales and was punishable by penal servitude or imprisonment for 12 months or more; or
• committed elsewhere and would have been an offence punishable by penal servitude or imprisonment for 12 months or more if it had been committed in New South Wales.

A relevant criminal record includes all matters irrespective of whether they are otherwise considered spent and all relevant offences committed as a juvenile.

Relevant criminal records include charges which:

• may have not been heard or finalised by a court; or
• are proven but have not led to a conviction; or
• have been dismissed, withdrawn or discharged by a court.

A relevant criminal record does not include an offence:

• that was a serious sex offence when committed if the conduct constituting the offence has ceased to be an offence in NSW; or
• involving sexual activity or an act of indecency if the conduct occurred in a public place and it would not have been an offence in NSW if it did not occur in a public place.

5.4.2        Relevant Apprehended Violence Orders

An Apprehended Violence Order (other than an interim order):

• made by a court under Part 15A of the Crimes Act 1900; or
• an external protection order (within the meaning of Part 15A of the Crimes Act 1900) which is registered in NSW;

made on the application of a police officer or other public official for the protection of a child (or a child and others).

It does not include orders made before 3 July 1995.

5.4.3        Relevant employment proceedings

Relevant employment proceeding records are findings by an employer that the following conduct occurred or may have occurred:

• reportable conduct - any sexual offence or sexual misconduct, committed against, with or in the presence of a child, including a child pornography offence;
• any child-related personal violence offence:
• any assault, ill treatment or neglect of a child;
• any behaviour that causes psychological harm to a child; or
• an act of violence committed by an employee in the course of employment and in the presence of a child.

5.5   What is reportable conduct and an act of violence for the purposes of relevant employment proceedings?

Reportable conduct includes the following:

5.5.1        Sexual offences

Sexual offences include sexual assault, the involvement of children in sexual acts or acts of indecency and any sexual threat imposed on a child. Sexual assault refers to sexual intercourse by a person with a child.

5.5.2        Sexual misconduct

Sexual misconduct describes a range of behaviours or a pattern of behaviour aimed at the involvement of children in sexual acts. Some of these behaviours may include:

• any sexual relationship with a child;
• inappropriate conversations of a sexual nature;
• comments that express a desire to act in a sexual manner with individual children or young people;
• unwarranted and inappropriate touching of a child, or in the presence of a child;
• sexual exhibitionism in the presence of a child;
• personal correspondence (including electronic communication) with a child or young person in respect of the adult's sexual feelings for a child or young person;
• deliberate exposure of children and young people to sexual behaviour of others including display of pornography;
• possession of child pornography; and
• patterns of behaviour aimed at engaging or 'grooming' a child as a precursor to sexual abuse.
• Sexual misconduct includes 'grooming behaviour', or patterns of behaviour aimed at engaging or 'grooming' a child as a precursor to sexual abuse. However, such abuse need not have happened for grooming to have occurred. The grooming process can include:
• persuading a child that a 'special' relationship exists – spending inappropriate special time with the child, inappropriately giving gifts, showing special favours to them but not other children, allowing the child to overstep rules, etc.;
• testing of boundaries – undressing in front of the child, allowing the child to sit on the lap, talking about sex, 'accidental' touching of genitals, etc.;
• establishing relationships outside the employment relationship – grooming should not be assumed where such relationships are the result of a relationship established before employment; and/or
• inappropriate personal correspondence, including electronic communication, with a child.

These behaviours may not indicate risk if they occur in isolation, but if there is a pattern of behaviour occurring, it may indicate grooming.

5.5.3        Physical assault

Physical assault must include all three of the following elements:

• it is an act committed on or towards a child; and
• it involves either the application of force to a child or an act that causes a child to think that immediate force will be used on them; and
• it is either hostile or reckless (a reckless act is one where a person would reasonably foresee the likelihood of inflicting injury or fear and ignores the risk).

A child does not have to be physically injured in order for an assault to have taken place. However, a child must be put in fear that they will be harmed as a result of the act.

Assault is a serious matter against a person in child-related employment. Physical contact which is part of a daily work relationship should not automatically be considered to be assault even if there is anger or emotion involved. Shouting at a child would not be considered as assault.

Physical contact which is an inevitable part of everyday life does not amount to assault. Physical assault does not include behaviour that is reasonable for the purposes of discipline, management or care of children, or the use of physical force that is trivial or negligible, but only if the employer is an agency to which Part 3A of the Ombudsman Act 1974 applies and the matter is to be investigated and the result of the investigation recorded under workplace employment procedures.

5.5.4        Ill-treatment

Ill-treatment of a child occurs where a child is corrected or disciplined in excess of what is reasonable or appropriate for the situation.

Discipline may be considered excessive if it is a disproportionate response to a child's behaviour. Discipline can be considered inappropriate if it is unsuitable for the child for a specific reason such as the child's age, physical ability, developmental level or if the discipline violates community standards. You should consider whether the treatment may affect the long-term well-being of the child.

For example, locking a child in a cupboard as punishment for talking, or tying a child to a chair because they wandered, are excessive and inappropriate forms of discipline that would be regarded as ill-treatment.

5.5.5        Neglect

Neglect occurs when a child is harmed by the failure to provide basic physical and emotional necessities of life. For example, failure to provide or arrange for adequate and proper food, supervision, nursing, clothing, medical attention or lodging for a child. Generally neglect offences are linked to a person with care responsibilities for a child, such as a foster carer.

Neglect can be ongoing or a single significant incident. However, neglect typically develops as a pattern of behaviour that results in harm to a child over a period of time. For example, accidentally leaving a child locked in a room alone for a short period, and after all standard workplace procedures have been followed, is not considered to be neglect, though it may be inappropriate professional conduct.

When considering whether a child is being, or has been, neglected, it may be useful to focus on the effect on the child. Incidents that do not suggest any impact on the long-term physical, emotional or intellectual well-being of the child are unlikely to constitute neglect.

5.5.6        Behaviour that causes psychological harm

There are three elements in a finding of behaviour that causes psychological harm. There must be:

• significant emotional harm or trauma to a child;
• inappropriate behaviour by the offender; and
• a causal link between the behaviour and the harm.

The consequences of psychological harm are long-term and include feelings of guilt, distress, low self-esteem, depression, self-destructive behaviour and can result in delays to normal development, interpersonal relationships and learning development. Psychological harm is typically characterised by a consistent or repetitive pattern of behaviour by the employee. Isolated or minor incidents generally do not result in significant psychological harm or trauma.

Examples of behaviour that causes psychological harm may include repeated acts that degrade or belittle a child and isolating a child by continually denying them the opportunity to participate or restricting their freedom of movement.

The NSW Ombudsman document Child Protection in the Workplace: Responding to Allegations Against Employees (June 2004, 3rd edition) provides further assistance on what constitutes reportable conduct. It is available from the NSW Ombudsman's website at www.ombo.nsw.gov.au.

5.5.7        What is an 'act of violence'?

For an act of violence to be reportable, it must be an act or series of related acts that:

• involve violent conduct;
• are committed in the course of employment;
• are committed in the presence of a child; and
• result in injury, either physical or emotional, to the child.

An act of violence is not necessarily committed on, or directed at, a child. It also includes violent conduct towards property as well as violent conduct towards persons. For example, where an employee acts with violence towards another adult in the workplace in the presence of a child, this can result in a relevant employment proceeding. However, small and insignificant actions such as throwing a book on the ground or slamming doors do not constitute acts of violence and should not be reported.

A reportable act of violence does not include acts which are trivial or negligible. Some behaviour, such as a one-off incident of an employee hitting a desk in front of a child in anger, may be undesirable in the workplace. However, it does not constitute an act of violence.

In all instances the act of violence must result in injury, either physical or psychological, to the child.

5.6   What does an estimate of risk take into account?

Before proceeding with an estimate of risk the Approved Screening Agency will confirm that the position is child-related employment, the records are relevant, the records belong to the applicant and the applicant is not a prohibited person.

The estimate of risk is based on three components:

• the level of risk inherent in a particular position;
• the level of control an organisation has over its risks; and
• the extent of caution needed in employing a particular individual.

As part of conducting an estimate of risk, a risk assessor will:

• contact the preferred applicant to verify their personal details and confirm that the records relate to them;
• undertake an assessment of the vulnerability of the child(ren), the level of dependency of children on the position holder and the level of supervision provided;
• undertake an assessment of the adequacy of the plan in place to address the risk to children posed by staff; and
• undertake an assessment of a preferred applicant's previous history of relevant offending and/or proceedings.

The estimate of risk is undertaken according to an established framework developed by the Commission for Children and Young People.

5.7   How to make your workplace child-safe and child-friendly

Research shows that in preventing child abuse within workplaces, organisational practices are as important as who is employed.

In recognition of this, the Commission for Children and Young People has created a set of web-based resources to assist employers keep children and young people safe and reduce the risk of abuse.

These resources include templates and checklists on developing policies, codes of conduct, recruitment and selection, induction, supporting staff and managing complaints.

The Child-safe Child-friendly resources are available from the Commission for Children and Young People's website at www.kids.nsw.gov.au/safefriendly.

Through their participation, children and young people can make an important contribution to helping organisations become more child-safe and child-friendly. For more information on getting children and young people involved in your organisation, follow the link to the Commission for Children and Young People's TAKING PARTicipation seriously kit.

5.8   What you should expect from your Approved Screening Agency

Your Approved Screening Agency will:

• conduct the Working With Children background check;
• undertake an estimate of risk of any preferred applicant whose check has identified a relevant record;
• notify you of the outcome of any estimate of risk conducted;
• provide you with assistance and advice about the Working With Children Check;
• protect the security and confidentiality of all information obtained during the Working With Children Check; and
• carry out internal audits to make sure the Working With Children Check retains its integrity.
• Your Approved Screening Agency should carry out the Working With Children background check and estimates of risk in a manner that is:
• timely;
• responsive to your needs; and
• consistent with strict standards of fairness towards the preferred applicant.

5.9   What you should expect from the Commission for Children and Young People

The Commission for Children and Young People will:

• develop Guidelines for the implementation of the Working With Children Check;
• develop consistent standards for the practices of Approved Screening Agencies for Working With Children background checking;
• develop policies and procedures that support a timely and responsive service;
• coordinate an approach to the Working With Children background check which promotes integrity, consistency and probity;
• monitor and audit the Working With Children Check processes;
• review the Working With Children Check on a regular basis and recommend legislative changes to improve the processes as required;
• respond to issues you may raise in relation to your Approved Screening Agency; and
• maintain relevant employment proceeding and Apprehended Violence Order (AVO) records for the purposes of the Working With Children Check.

5.10     What to do if you have a complaint about service

If you have a complaint about the service provided by your Approved Screening Agency you should first contact the Agency.

If the matter cannot be resolved by the Approved Screening Agency you should contact the Commission for Children and Young People who may be able to assist you. The Commission for Children and Young People has the power to audit and monitor compliance with the Working With Children Check.

If your Approved Screening Agency is the Commission for Children and Young People, you can find out more information about making a complaint to the Commission for Children and Young People at http://www.kids.nsw.gov.au/about 

All of the Approved Screening Agencies, apart from the Catholic Commission for Employment Relations, are within the jurisdiction of the NSW Ombudsman. The NSW Ombudsman will be able to provide you with further information if you wish to make a complaint. Information on the NSW Ombudsman is available at www.ombo.nsw.gov.au.

5.11     What is the relevant legislation?

5.11.1   Commission for Children and Young People Act 1998

This Act establishes the Commission for Children and Young People as an independent organisation with the aim of making NSW a better place for children and young people.

In relation to the Working With Children program, the Commission for Children and Young People's functions include encouraging employers to develop their capacity to be safe and friendly for children, facilitating Working With Children background checking for child-related employment and reviewing the status of Prohibited persons.

5.11.2   Part 3A of the Ombudsman Act 1974

Under this part the NSW Ombudsman is to keep under scrutiny the systems for:

• preventing reportable conduct by employees of designated NSW Government agencies, non-government agencies and other public authorities; and
• handling and responding to reportable allegations or convictions involving those employees.

5.11.3   Child Protection (Offenders Registration) Act 2000

Under the Child Protection (Offenders Registration) Act 2000, a person who has been found guilty of a registrable offence against children, as defined by the Act, is known as a "Registrable person". A number of strict reporting obligations and limits are placed on such persons. A Registrable person automatically becomes a Prohibited person under the Commission for Children and Young People Act 1998.

5.11.4   Freedom of Information Act 1989

This Act gives people the legal right to:

• obtain access to information held as records by NSW Government agencies, Government Ministers, local government and other public bodies;
• request amendments to personal records that are inaccurate; and
• appeal against a decision not to grant access to information or to amend personal records.

The Commission for Children and Young People Act 1998 expands the coverage of the Freedom of Information Act 1989 to any employer who has information on relevant employment proceedings.