Most workplaces now require a valid and current police check as well as a Working With Children Check (WWCC). These checks are not only requested by potential employers, but are also required for subcontractors, especially when working within government infrastructure (including buildings) or any activities that involve contact with children.

While police conviction checks are normally "spent" after 10 years and generally do not show any non-convictions once a bond is over (with some exceptions, such as with the Department of Education or Department of Defence), WWCCs are much more thorough and do not have similar timelines or boundaries.

For a WWCC, incidents from any time on your criminal record may be examined. Further, the check will include any uncharged acts, police events, and otherwise-confidential police intelligence reports.

The Office of the Children's Guardian (OCG) is responsible for overseeing WWCCs. A WWCC follows a five-step process:

  1. An application is made;
  2. Records are checked;
  3. Assessment of application and information is made;
  4. The applicant may respond to any request for further information; and
  5. A final decision is made.

Most applicants encounter problems at Step 3, being the "assessment" phase, as they have a police or workplace record relevant to the safety of children. Where these records exist, the OCG needs to conduct an assessment before determining the outcome of an application.

The basis for this assessment arises from Schedule 1 and Section 15 of the Child Protection (Working with Children) Act 2012 ("the Act"). To summarise, if someone has a relevant police or workplace record, the OCG must conduct a risk assessment to determine if an applicant poses a risk to the safety of children.

The assessment includes examining all available records that "flag" a concern. The OCG may seek information from government and non-government agencies, and will also seek submissions from the applicant in question.

When making the assessment, the OCG considers factors such as:

  1. The seriousness of the offence;
  2. The time since the offence occurred;
  3. The impact of the offending on children; and
  4. Your current life and living situation

The list of relevant considerations can be found in Section 15(4) of the Act.

Any assessment may have only one of two outcomes: either a clearance is issued, or the applicant is barred from working with children for a period of five years.

It is important your present your best possible case to the OCG at an assessment stage as, even after a "barred" period of five years, there is no guarantee any following application will be successful.

If a WWCC clearance is not granted after an assessment, there is a right to appeal to the NSW Civil and Administrative Tribunal (NCAT). An appeal to NCAT generally involves both the OCG and applicant filing evidence, which is then presented at a hearing before a tribunal member. While this may be somewhat costly process, it is seen as a necessity in today's society, with the WWCC playing such an important role in employment and the interactions that person may have.

If you receive a refusal to grant a WWCC, there are strict timelines if considering an appeal. Importantly, if the matter can be dealt with successfully at the assessment stage, the benefits are significant.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.