Many in the community require a valid Working With Children Card as condition of their employment. Consequently, an proposal by the Department to provide a negative assessment but be treated seriously, and any written applications in response prepared properly.
In Victoria, the legislation predicates this requirements is the Working with Children Act 2005 (Vic).
The starting point is that a person who needs a clear Working with Children Check/Card applies will make an application to the Secretary (Secretary to the Department of Justice and Community Safety). Consequently, an assessment will be undertaken by the Secretary as to eligibility. In the legislation this is referred to as an assessment. A valid assessment notice is a precondition to receiving a positive working with children check, and the related identification card.
The criteria for assessing applications
Under the Act, the Secretary must refuse applications where the applicant has been convicted of very serious offences (involving children) and may refuse applications unless satisfied that a child or children do not pose an unjustifiable risk of harm (Category B offences). A list of Category A and Category B offences is contained under Schedules 1 and 2 of the Act.
It is also important to note that a person’s working with children check may be reassessed where they face pending charges or have been convicted of a Cat A or Cat B offence, after they received a valid assessment notice. The police have a statutory duty to notify the Secretary of a person being charged with an offence that is relevant to the safety of a child/children (Section 41).
Where the Secretary receives a relevant notification, a written letter will be sent to the person and their eligibility to hold an assessment notice will be formally reviewed.
The Secretary must allow the person holding the assessment notice to make a submission as to why they should be permitted to continue to hold their assessment notice (Section 41AE). The period for which the person must provide their response to the Secretary is 28 days, unless the reassessment relates to a Category A offence, in which case the period is 14 days. Failure to respond to the Secretary within either of these periods (depending upon whether Cat A or Cat B) will cause the assessment notice to be immediately revoked.
A person who receives a negative notice has a right to have the matter reviewed by VCAT, however the extent to which a Category A assessment can be reviewed is limited (Sections 26 – 26C).
What to include in a written submission to retain a valid assessment notice
To avoid a negative assessment, the following provides a general guide as to the content of written submissions.
It is important to address each and every ground upon which the Secretary relies in giving their written notice of a proposed negative assessment.
Where the Secretary has received a notification of a relevant event (person found guilty or charged with a relevant offence) the details of the event will be disclosed in their written notice.
Often the summary of the allegations will not necessarily encompass all relevant matters pertaining to the offence, and it will be important to ensure that all relevant facts, including those that might operate in mitigation are included in the response.
It will also be important to consider the extent to which a child/child were in fact connected to the offence. Where children were exposed or involved in an offence it will be appropriate to give an account of that.
It will also be important to address any factor which may have contributed to the offending, for example drugs or alcohol, and what rehabilitative steps have been undertaken (for example attending upon a psychologist or drug & alcohol counsellor for treatment).
Where the letter concerns an allegation, which has not yet been formally determined, then it will be important to highlight the facts which are in dispute, and the defences that may be available.
When making a written submission, be sure to include a character reference(s). The person providing the reference must be provided with full details of the allegation, or offence. The referee must acknowledge their awareness of the allegation or offence in their letter. The referee can comment on matters that bear upon character, and how the person usually conducts themselves children.
In some cases, particularly where an offence did occur, or is alleged to have occurred with the person’s own children, it will be important to consider what steps can be taken to mitigate the risk of a further occurrence. And to that end, parenting courses, anger management can be very constructive rehabilitative programs.
Central to all the submissions, and supporting material (references, counselling reports, etc) will be why the person does not pose a risk to the safety of children. That concept is central to the submissions and must be addressed squarely.
Obviously, a negative assessment can have adverse consequences for both employment and voluntary community work. If your Working With Children Check is at risk, call our office on 03 9668 7600 for an obligation free consultation.