FAQs - NSW Commission for Children and Young People

CANDIDATES

1. Who can access my criminal records?

When you sign the consent for the Working With Children background check you are consenting to your records being disclosed to your Approved Screening Agency. Your Approved Screening Agency may not release details of your records to your current or prospective employer.

If your Approved Screening Agency is part of your employer agency, your records will kept within the Approved Screening Agency section and not released to other parts of your employer. agency.

The Commission for Children and Young People may release information about you to a police service for law enforcement purposes.

2. What can I do to get dismissed charges off the system?

All charges for relevant offences, including dismissed ones, are relevant records for the Working With Children Check. Dismissed charges for relevant offences remain on Police records. Your record will show that the charges were dismissed.

3. What can I do to get expunged records off the system?

NSW Police guidelines state that NSW Police are under no obligation to destroy criminal records at any time.

To find out more about expunged records contact the Criminal Records Branch of your local Police service.

4. How do I know if I’m a prohibited person?

A prohibited person is a person who is convicted of the following (whether in NSW or elsewhere):

serious sex offence
child-related personal violence offence
murder of a child
indecency offences punishable by imprisonment of 12 months or more
kidnapping (unless the offender is or has been the child’s parent or carer)
offences connected with child prostitution
possession, distribution or publication of child pornography; or
attempt, conspiracy or incitement to commit the above offences. A prohibited person includes a Registrable person under the Child Protection (Offenders Registration) Act 2000.

A person is convicted if a charge against them is proven in court and recorded as such. It includes a finding that the charge for an offence is proven, or that a person is guilty of an offence, even though the court does not proceed to a conviction.

A person employed in child-related employment before 2 January 2007 who has previously been convicted of a child-related personal violence offence is not a prohibited person in relation to their current position, but will be prohibited from other child-related employment positions.

It is an offence for a prohibited person, including those who are self-employed, to:

apply for, or otherwise attempt to obtain work in, or offer services in child-related employment; or
undertake child-related employment; or
remain in child-related employment.

Some prohibited persons can seek a review of their status. Contact the NSW Commission for Children and Young People on (02) 9286 7229 or email to check@kids.nsw.gov.au for more information.

5. Can I get a copy of my own check results?

The Working With Children background check is to help employers select suitable employees. The check is not transferable from one employer or job to another. This is why Approved Screening Agencies provide the check results only to employers. Your employer may share the check result with you.

6. How do you assess risk?

When we find a relevant record in your name we estimate the following risks:

those reflecting your personal record
those reflecting the position you have sought; and
those reflecting your employer’s level of organisational risk management.

The formal Estimate of Risk uses information from your record and from your employer to determine the level of risk in each of these areas. We use a standard tool to guide our decision making in each of these areas.

7. Can I appeal an estimate of risk outcome?

The risk estimate process has a built-in step that allows the Approved Screening Agency to consider your comments and information you provide. There is no process for appealing the final risk estimate outcome we provide to your prospective employer. If a risk estimate is conducted we’d encourage you to discuss it with your prospective employer.

8. Can I get a copy of my estimate of risk?

The Working With Children background check is to help employers select suitable employees. The check is not transferable from one employer or job to another. This is why Approved Screening Agencies provide the estimate of risk results only to employers. Where a risk estimate is conducted we’d encourage you to discuss it with your prospective employer.

EMPLOYERS

9. Can volunteers have a Working With Children background check?

Working With Children background checks are not currently available for volunteers.

Volunteers entering child-related employment are required to provide a completed Prohibited Employment Declaration form. It is an offence to engage anyone in paid or unpaid child-related employment without requiring them to do this.

Research shows that the most effective way on protecting children is by supporting organisations to be more child-safe and child friendly. This includes implementing good policies and practices around risk and the importance of supervision. Information to help organisations to do this is available at http://www.kids.nsw.gov.au/director/check/safefriendly.cfm.

Employers are ultimately responsible for the risk in their organisations, and are accountable for the ongoing management of risks to children.

10. How do I get a blue card?

New South Wales and other states and territories have different statutory systems for checking people before they work with children.

The NSW Working With Children Check requires all employers to submit a request for background checking every time they recruit a person into primary child-related employment.

Where there is a relevant record the Working With Children Check considers not only the risk associated with the applicant’s record, but also the risks associated with the proposed role and workplace. In estimating risk NSW follows expert advice and research that shows that risk management in an organisation has as much impact on children’s safety as an individual’s record. We can only implement these important findings when risk is assessed in relation to a specific position within a particular organisation.

This is why Blue cards, that allow a person to work in any child related position, are not available in NSW.

11. Can I get a copy of check outcomes already sent to me as an employer?

Yes. The employer’s authorised contact person can request this information by sending an email to check@kids.nsw.gov.au . Your Approved Screening Agency will require name and date of birth details for employees to make sure they are releasing the correct information.

12. Can I get employees re-checked every year?

No. The Working With Children background check is to help employers select suitable employees. It can be used only for preferred applicants for child- related employment.

If you recruit an existing employee into a new child related employment role, you should submit a new background check request. People returning from leave into the same child-related employment do not need to be rechecked.

If you are re-employing casual or temporary staff in a similar role, and you have done a background check for them in the last 12 months, you can re-employ them without a new check.

13. How long is the Working With Children background check valid?

The Working With Children background check is a one-off check which is conducted before an applicant starts work in a child-related position. The Check is valid while the person remains in the same position in child-related employment. Once an applicant is employed by an organisation, they cannot be re-checked, unless they are appointed to a new and different child-related position.

14. Can I get a check for my nanny / babysitter?

Only a commercial agency may request a Working With Children background check for nannies and babysitters working in private homes.

15. Can I choose a different ASA from the one I’m assigned?

You must register with the Approved Screening Agency that covers your area of work. If you work in areas covered by different ASAs you should register with the one that covers the majority of your work.

If you are experiencing any difficulties with your ASA, first of all contact the ASA manager to see if you can resolve them. The Commission for Children and Young People can help ASAs and clients to resolve problems. Contact the Commission’s help line on 9286 8219.

16. How do I choose an ASA if I work in several areas?

If you work across a number of industries, or are funded by a number of Approved Screening agencies, you should register with the Approved Screening Agency that best represents and understands the industry in which the majority of your work is undertaken.

You can contact the Commission for children and young people on 9286 7219 or email check@kids.nsw.gov.au for advice if you are not sure which Approved Screening Agency to register with.

17. Can I re-use a check outcome?

The Working With Children background check is to help employers select suitable employees. It must be used for preferred applicants for child related employment. The check is for a particular job in your specific organisation.

The only situation where a check can be reused is where you are re-employing casual temporary staff. If you are re-employing casual or temporary staff in a similar role, and you have done a background check for them in the last 12 months, you can re-employ them without a new check.

If an employee is recruited into a different child-related employment role with the same employer, you should submit a new background check request. People returning from leave into the same child-related employment do not need to be rechecked.

18. How do I decide when physical contact is reportable?

Physical contact with adults is important to and valued by children. It is an essential part of many child-related roles.

The Working With Children Check is only concerned with inappropriate or harmful physical contact. The Working With Children Check Employer Guidelines provide detailed information about reportable conduct including physical contact.

You should not report trivial or negligible use of physical force. This is force not significant enough to cause concern for, or harm to, a child. It may be ordinary, although intentional, use of force, such as forcing a child to move when they refuse. Force that may be trivial for a ten year old child may not be trivial for a two year old. Matters must be considered on their individual merits.

It will not be reportable conduct if you have determined that the contact was:

reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant professional standards; or
exempted from notification by a class or kind agreement under the Guidelines; or
physical force that, in all the circumstances, is trivial or negligible, but only if the you are 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.

The Working With Children Employer Guidelines give examples of behaviours that are not reportable conduct.

19. How do I decide when unauthorised contact is grooming?

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.

EMPLOYEES

20. Can I use my check interstate?

No. The NSW Working With Children background check is valid only in NSW.
Websites where you can find information about Working With Children Checks in other States are:

Queensland: http://www.childcomm.qld.gov.au/employment/bluecard
Victoria: http://www.justice.vic.gov
Western Australia: http://www.checkwwc.wa.gov.au

21. Can I use an interstate check here?

No. Checks from other states are not transferable to NSW and the NSW Working With Children Check is not transferable to other states.

22. Can I get a check for myself?

No. The Working With Children background check is to help employers select suitable employees. Only employers can request one.

If you need a copy of your Australian criminal history for work overseas, you can apply to the Australian Federal Police. Application forms are available on the Australian Federal Police website at www.afp.gov.au. You can also contact the Australian Federal Police on +61 2 6256 7777.

23. What happens to me if a Relevant Employment Proceeding is notified to the Commission?

Being notified to the Commission does not mean you cannot work with children. If you have a “Category Two” matter notified, there is no impact at all on your future employment prospects unless you already have other relevant records. This is because “Category Two” matters are only considered if there are other relevant records as well.

If you have a “Category One” matter notified, you will be subject to an estimate of risk when you next seek child-related employment. Your Approved Screening Agency will obtain details of the incident and the employer’s investigation from the employer who notified the matter. You will have an opportunity to provide your own information when the ASA conducts its risk estimate.

Your prospective employer will receive a risk estimate outcome that covers the level of risk suggested by your personal record, as well as the risk associated with the proposed role and workplace. The employer will use the estimate of risk to help make a decision about whether to appoint you. If a risk estimate is conducted we’d encourage you to discuss it with your prospective employer.

24. Who can get information about my employment proceeding?

Personal information like this is treated as sensitive and confidential and is not released to any third party. Only Approved Screening Agencies can access this information, and only when they are conducting an Estimate of Risk. Your prospective employer will receive only the outcome of the risk estimate. They will not receive information about what records you have or the details of those records.

Section 43 of the Commission for Children and Young People Act 1998 gives you a right to access Relevant Employment Proceedings information from the employer who notified the matter.

25. Can I appeal the notification of my Relevant Employment Proceeding to the Commission?

You may ask your employer to review the notification. If the employer asks the Commission to remove or move your notification to Category 2, we will do this. You may also ask the Ombudsman to review the employer’s decision or investigation if your employer is oversighted by the Ombudsman.

Approved Screening Agencies also carefully review Relevant Employment Proceedings when they undertake a risk estimate. At that time the Approved Screening Agency can recommend that the Commission review the notification.

26. Can I use the check results from my paid job for a volunteer role?

The Working With Children background check is to help employers select suitable employees.

Where there is a relevant record the Working With Children Check considers not only the risk associated with the applicant’s record, but also the risks associated with the proposed role and workplace. In estimating risk NSW follows expert advice and research that shows that risk management in an organisation has as much impact on children’s safety as an individual’s record. We can only implement these important findings when risk is assessed in relation to a specific position within a particular organisation.

This is why the check results cannot be transferred from one position to another.