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Recent updates to child protection legislation

20 February 2007

The legislation governing the Working with Children Check (WWCC) which was introduced in July 2000, has been updated as at 2 January 2007.  This legislation, the Commission for Children and Young People Amendment Act 2005 affects the Working with Children Check process for employers who request a background check on potential employees for positions in primarily child related employment within their organisation.  

Please note: The change in the Working With Children Check forms does not require you to conduct another background check on existing staff or have existing staff sign another Prohibited Employment Declaration.  Please use the new forms to conduct any future background checks for preferred applicants.

The Working with Children Check helps to ensure, as far as possible, that people who may pose a risk to children are not employed in roles where they have unsupervised contact with children.  To understand your obligations under the Working with Children program, please refer to the Working With Children Check Employer Guidelines which are currently available on the Commission’s website at www.kids.nsw.gov.au/check or via a link from the NSW Sport and Recreation’s website www.dsr.nsw.gov.au/children.

To assist your organisation in dealing with this legislation, we have outlined some of the key changes to the guidelines as follows:

Definitions:

  • The definition of what is child-related employment has been clarified.   The form Attachment 3 - Is the Position Child-Related Employment? needs to be completed by the employer for each position within the organisation before requesting a Working With Children background check.  Once the employer is satisfied that the position is child-related employment, you should forward the Background Check Request form to NSW Sport and Recreation.  You only need to do this once for each position. Remember it is for the position NOT candidate for the position.

It is not necessary to forward the form “Is the Position Child-Related Employment?” to the ASA with the Background Check Request Form, but it could be requested if there are any doubts in the Agency’s view regarding whether the position is primarily child-related.  Note: you only need to establish once that a position within your organisation is child-related. You do not need to establish this each time you need to fill that position.

Below are some examples of the type of questions to be answered for each position:

  • Does the position primarily involve contact with children? 

Positions that have direct unsupervised contact with children should be submitted for a Working with Children Check. 

  • Does the position involve direct contact with children?

Direct contact means face-to-face contact. 

Record keeping:

  • Prohibited Employment Declarations and Working with Children background check consent forms must be kept by the employer for at least two years after the person ceases employment with you.

Change in terms:

  • The term ‘employment screening’ has been replaced by ‘background checking’, and ‘risk assessment’ replaced by ‘estimate of risk’, to reflect more accurately the intention of these processes.

Short-term employees:

  • There are now special provisions to allow employers not to recheck a short-term employee if they have employed and checked that person in a similar position within the last 12 months.

Use of standard forms:

  • Please use these forms for all future Background Check requests. You do not need to conduct another background check on existing employees or have existing staff sign another Prohibited Employment Declaration.
  • All employers must use the standard forms provided in the Guidelines without alteration to content.  Non-standard forms will not be accepted.  Should you need the forms sent to you, please call 02 9006 3774 or email workingwithchildrencheck@dsr.nsw.gov.au.
  • Requests for background checks will only be accepted from the authorised Contact Person listed for your organisation, all boxes on the request form must be ticked by the relevant contact person to certify that all processes have been followed and all fields relating to details of the individual to be checked, need to be completed before a check can be processed.
  • Background checking is only available for paid employees who are required to work in child-related positions.
  • As in the past, Prohibited Employment Declarations and Background Check Request forms are not sent to the Agency as part of the check request. However, these are auditable documents by the Commission for Children and Young People and must be kept in a secure location within your organisation.

Prohibited persons:

  • Persons who have been convicted as an adult of intentionally causing grievous bodily harm to a child will become prohibited persons.
  • Prohibited persons who have been convicted of serious crimes against children, such as murder, producing child pornography and sexual intercourse with a child, will not be able to seek a review of their prohibited status.

Risk estimation:

  • The existing risk assessment model has been replaced with A Workplace and Applicant Risk Estimation model (AWARE). AWARE is based on three components; they are the level of risk inherent in a particular organisation, the level of control an organisation has over its risks and the extent of caution needed in employing a particular individual.
  • Employers are required to provide to the Approved Screening Agency a summary of any relevant employment proceedings that have been notified to the Commission for Children and Young People when the record is identified in a background check.

Audit and compliance:

  • The Commission for Children and Young People has increased audit powers and can now ask employers to provide documentary evidence of their activities.  Employers who are not meeting their legal requirements, such as not undertaking background checking, failing to notify the Commission of a rejected applicant for child-related employment, or failing to advise of a relevant employment proceeding, can be issued with a notice to comply.  If they refuse, they can be prosecuted.
  • The Commission can now withdraw, delete or correct the wrongful notification of a relevant employment proceeding.

As indicated above, the forms required to undertake a Working With Children background check have been updated on the NSW Sport and Recreation website.  To facilitate the processing of the Working With Children Check, all organisations are required to update their proformas by 28 February 2007.   From 1 March 2007, requests for background checks will only be accepted on the updated forms.

If your organisation is required to process a background check on paid employees in positions that do not satisfy the ‘child-related criteria’ you are able to obtain a National Criminal History Record Check (NCHRC) through your local Police Station.  This check is available for NSW residents aged 16 years and above and costs $52.  This is a full criminal history check and would include details such as traffic offences, but would also include offences against children or other related offences.  The website for information on NCHRC is www.police.nsw.gov.au .

Should you require further information about these changes please don’t hesitate to contact the NSW Commission for Children and Young People on 02 9286 7219, the NSW Sport and Recreation Employment Screening Unit on 02 9006 3774 or contact us by email on workingwithchildrencheck@dsr.nsw.gov.au.