Tribunal reaches differing decisions on Working with Children Checks
In March 2018 the NSW Civil and Administrative Tribunal handed down two separate decisions dealing with applications from disqualified persons seeking Working with Children Checks. These decisions highlight the way the Office of the Children’s Guardian is likely to assess applications from persons with previous sex related criminal convictions seeking employment in workplaces requiring a valid Working with Children Check.
The first case, CZZ v Children’s Guardian involved a 44-year-old male seeking review of the decision of the Children’s Guardian not to grant him a Working with Children Check (WWCC) to continue his volunteer work:
As a helper at his son’s primary school; and
AFL umpire in a regional competition.
The Children’s Guardian had rejected his WWCC primarily on the basis of a disqualifying offence in 1993 when CZZ pleaded guilty to touching a 19-year-old woman’s breast and buttocks. He was 21 at the time.
The second case, DEO v Children’s Guardian involved a 74-year-old man seeking review of a decision to refuse him a WWCC arising from a disqualifying offence, also in 1993, involving sexual assault and aggravated indecent assault with an 18-year-old school student. He was 50 at the time.
Consideration and finding
In both cases, the Civil and Administrative Tribunal was required to make findings in accordance with Section 30(1A) of the Child Protection (Working with Children) Act 2012 ie:
1A The Tribunal may not make an order under this Part which has the effect of enabling a person (the affected person) to work with children in accordance with this Act unless the Tribunal is satisfied that:
(a) A reasonable person would allow his or her child to have direct contact with the affected person that was not directly supervised by another person while the affected person was engaged in any child-related work, and
(b)It is in the public interest to make the order.
In considering the facts in CZZ v Children’s Guardian, the Tribunal noted the:
applicant had not had any subsequent court findings concerning children
applicant had a long history of working with children over a number of years without blemish
disqualifying offence did not involve a child
disqualifying offence took place when there was a two-year age gap between the parties
On this basis, the Tribunal concluded it was satisfied CZZ did not pose a risk to the safety and wellbeing of children and should be granted his WWCC.
However, in considering the facts in DEO v Children’s Guardian, the Tribunal noted the:
applicant had a subsequent complaint made against him by a 14-year-old girl, which was investigated by FACS and the Police but no charges laid;
disqualifying offence involved a school student, albeit aged 18 years of age
disqualifying offence took place when there was a thirty-two-year age gap between the parties
On this basis, the Tribunal concluded it was not satisfied that DEO did not pose a risk to the safety and wellbeing of children and accordingly, refused the application for the applicant to be granted his WWCC.
Tips for Local Government and the Public Sector
These cases demonstrate dual aspects NSW child protection, the strict approach taken by the Office of the Children’s Guardian in issuing WWCCs as well as the willingness of NCAT to assess in an objective manner the claims of those with disqualifying offences in the context of section 30(1A) of the Child Protection (Working with Children) Act 2012.
Local government and public sector employers needing to monitor the WWCC status of employees and/or volunteers should at all times refer details of any potential disqualifying offences, especially those related to sex offences involving children, to the Children’s Guardian for their assessment.
CZZ v Children’s Guardian  NSWCATAD 56 (13 March 2018)
DEO v Children’s Guardian  NSWCATAD 54 (9 March 2018)
Graham Evans is the Managing Partner of O'Connell Workplace Relations, a Sydney-based provider of independent investigations into workplace issues. He has over 20 years' experience in working with NSW State and Local Government to deal with complex issues within their workplaces.