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Prior offences and failing the check

Information about what kinds of offences might mean someone will not be able to get a certificate to work with children.

What kinds of offences will affect the check?

When the department is doing the check, they will look at an applicant's criminal history, any adverse disciplinary findings from professional associations and other sources, such as former employers, the Department of Health and Human Services or health professionals.

For a more detailed list see Working with children check—What happens next(opens in a new window).

Is there an unjustifiable risk?

Protection of children is the paramount consideration under the Worker Screening Act 2020. This means that child protection is to be prioritised by any decision-maker over an individual's right to work.

Decisions are based on whether the decision maker believes that there is an unjustifiable risk. They have to be satisfied that the reasonable person would allow their child to have direct contact with the applicant.

See ss. 11, 63, 65—Worker Screening Act 2020 (Vic)(opens in a new window).

Failing the check

Not all prior offences, charges or allegations will result in a WWC exclusion (formerly negative notice). Offences are categorised according to how serious the potential risk is believed to be.

See ss. 61, 63, 65—Worker Screening Act 2020 (Vic)(opens in a new window).

A person who fails the check will be issued with a WWC exclusion according to the seriousness of the offences. The offences are divided into 3 different categories with Category A being the most serious. Examples of the offences in each category are listed below.

Category A—not eligible for a certificate include:

  • a person who as an adult was convicted or found guilty of sexual offences involving children
  • murder or attempted murder
  • rape or attempted rape
  • any pending charges for category A offences
  • anyone who is subject to reporting obligations or who has orders for detention or supervision under the various Acts that order supervision or detention of sex offenders and serious violence offenders (see Extended supervision

The Department of Justice and Community Safety must refuse these applications.

See ss. 60, 61—Worker Screening Act 2020 (Vic)(opens in a new window).

Category B—certificate must be refused unless satisfied the person does not pose an unjustifiable risk, include people who have previously been found guilty or convicted of:

  • sex offences but were under 18 at the time of the offence
  • sex offences against adults
  • drug trafficking, or drug cultivation
  • offences involving violence offences including manslaughter, recklessly causing serious injury
  • loitering near schools or stalking children
  • upskirting
  • leaving a child unattended
  • obscene exposure
  • failing to protect a child from harm
  • recklessly or intentionally causing injury
  • failure to disclose a sexual offence against a child
  • failure to protect a child from a sexual offence
  • distribution (or threat to distribute) an intimate image (for adult offenders)
  • anyone who has any pending charges for category B offences.

See ss. 62, 63—Worker Screening Act 2020 (Vic)(opens in a new window)

Category C—may still get a certificate (unless department considers this to be inappropriate), include adults who have previously been found guilty or convicted of:

  • anyone who was charged with or has at any time been convicted or found guilty of one of the following offences and the offence happened when they were a child:
    • stalking
    • loitering near schools
    • distributing (or threatening to distribute) an intimate image, or
  • anyone who has had a finding made by:
    • teaching body (such as Victorian Institute of Teaching) that imposes conditions, limitations or restrictions on the registration of, or cancels the registration of a teacher
    • the Suitability Panel (DHS) that a person registered to provide out of home care should be disqualified from registration as a carer of young people
  • offences connected with child-related work under Worker Screening Act 2020 (such as failing to apply for a WWC clearance certificate when undertaking child related work).

See ss. 64, 65, 121—Worker Screening Act 2020 (Vic)(opens in a new window).

Note: The department must give a WWC clearance to a person in this category unless the clearance would pose an unjustifiable risk to the safety of children, or if the secretary is satisfied that a reasonable person would not allow their child to have direct and unsupervised while engaged in any kind of child related work.

When considering whether there is an unjustifiable risk the department decision-maker must have regard to:

  • the nature and gravity of the conduct and its relevance to child related work
  • how long since the applicant allegedly engaged in the conduct
  • whether a finding of guilt was recorded or whether the charge is still pending
  • what sentence, if any, was imposed
  • the age of the applicant and any victim at the time of the alleged conduct
  • whether the conduct has since been decriminalised or ceased to be subject to disciplinary charges
  • the applicant's behaviour since engaging in the alleged conduct
  • the likelihood of future threat to a child caused by the applicant
  • any information given by the applicant that relates to their application
  • anything else that the department believes is relevant.

For a list of the offences in each category see Working With Children Check—List of offences(opens in a new window).

WWC exclusions may be appealed

A person who gets a WWC exclusion may appeal this decision at VCAT, although this is not possible for offenders who have been charged with, found guilty or convicted for a category A offence if they were an adult at the time of the offending.

See:

More information

Legislation

Worker Screening Act 2020 (Vic)

  • s. 7—defines child related work
  • s. 11—children are paramount consideration in decision-making
  • s. 54—how to apply for a working with children check
  • s. 58—consideration of application
  • s. 60—category A application
  • s. 61—determination of a category A application
  • s. 62—category B application
  • s. 63—determination of a category B application
  • s. 65—determination of a category C application
  • s. 71—duration of a working with children clearance
  • s. 105—VCAT review of decisions relating to WWC clearances, reviewable decisions
  • s. 106—jurisdiction of VCAT (no VCAT application for adults if category A offending)
  • s. 121—offence of engaging in child-related work without a WWC clearance

Part 5.1—Exemptions from a WWC check

Part 6.2—offences relating to child-related work

See Worker Screening Act 2020 (Vic)(opens in a new window).

Sex Offenders Registration Act 2004 (Vic)

  • Pt. 3—reporting obligations

See Sex Offenders Registration Act 2004 (Vic)(opens in a new window).

Related pages

Woking with children

The Department of Justice and Community Safety has a website about working with children checks.

See:

Or see homepage Working with Children Check(opens in a new window).

Updated