Screening Checks (ACT)

A guide for ACT Community

Organisations

Dec 2020

Screening Checks (ACT) | 2020 2

Introduction 4

Part 1 7

Legal obligations under Working with Vulnerable People registration.................................... 8

When is WWVP registration required by law? ................................................................... 8

What 'regulated activities' require WWVP registration? ................................................ 8

WWVP registration exemptions ...................................................................................... 10

Summary of an organisation’s WWVP obligations .......................................................... 10

Part 2 12

Working with Vulnerable People applications ......................................................................... 13

How can employees or volunteers apply for a WWVP registration card?........................ 13

Can a person begin work once they have applied for WWVP registration? ................ 13

How much does a WWVP application cost? ............................................................... 14

Should organisations pay the costs of WWVP application for employees? ................ 14

What if a new employee or volunteer already has a WWVP card? ................................. 14

What happens once a WWVP application has been lodged? ......................................... 14

Applying for role-based or conditional registration ...................................................... 15

What happens if an applicant is not given general WWVP registration? ......................... 16

Part 3 17

What does a Working with Vulnerable People risk assessment do? ..................................... 18

What does a WWVP risk assessment do? ...................................................................... 18

Ongoing monitoring of WWVP registrations .................................................................... 19

Are there limits to what WWVP registration can achieve? .............................................. 21

Part 4 22

Police Checks ............................................................................................................................. 23

This part covers: ............................................................................................................. 23

Does the WWVP scheme differ from a Police Check? .................................................... 23

Part 5 25

NDIS Worker Screening Checks ................................................................................................ 26

© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.

Contents

Screening Checks (ACT) | 2020 3

Transition period for NDIS Worker Screening Checks ................................................ 26

Risk assessed roles .................................................................................................... 27

What does the NDIS Worker Screening Check include? ............................................ 27

NDIS provider record keeping requirements ............................................................... 28

Exceptions .................................................................................................................. 28

Interstate workers ....................................................................................................... 28

Part 6 30

Other checks ............................................................................................................................... 31

Discretionary background checks ................................................................................... 31

Screening for interstate employees and volunteers ........................................................ 31

WWC Checks ............................................................................................................. 31

Police Checks ............................................................................................................. 32

Child safety reforms and screening ................................................................................. 32

Resources ................................................................................................................................... 34

Screening Checks (ACT) | 2020 4

Introduction

Screening Checks (ACT) | 2020 5

Introduction

This part:

► introduces the reasons for conducting some level of screening for volunteers and employees

► refers to child safety law reforms relevant to screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background screening checks are required by law (under legislation or contract) and others are discretionary.

Even where there is no legislative or contractual requirement that checks be performed, organisations ought to undertake some level of screening for volunteers and employees. This is because all organisations have a responsibility to ensure they maintain a safe environment for their employees, volunteers and clients. Due to this overarching duty of care, organisations should always try to be informed about the individuals they select as their representatives.

Organisations should consider whether the volunteer or employee will have unsupervised access to money or property, contact with vulnerable clients or children, access to sensitive information or whether they will be driving. This may influence the types of checks your organisation requires in order to minimise risks associated with your volunteers and employees.

Example

A volunteer is sent to an elderly client’s home to assist with general household duties and provide companionship. The volunteer seems trustworthy and the organisation decides not to go ahead with any screening checks, including a Police Check. The volunteer steals from the client and it turns out that they have a string of theft and burglary offences.

To avoid the risk posed to its elderly clients, the organisation should have carried out relevant background checks, including a police check.

Tip

It may be challenging for some organisations to appropriately screen spontaneous volunteers, especially where organisations are already managing significant workloads due to an emergency or other incident. Your organisation may consider having a database of registered volunteers to call upon that have undertaken appropriate screening, induction and training.

Screening Checks (ACT) | 2020 6

Note

Currently, WWC Checks operate at a state or territory level. This means that a WWC Check is only valid for work in the state or territory in which it is issued. There are certain allowances for interstate volunteers. The Royal Commission into Institutional Responses to Child Sexual Abuse’s report on Working with Children Checks (WWCC Report) contains

recommendations for the implementation of a nationally-consistent scheme.

Visit the Royal Commission’s website for updates and reports.

Screening Checks (ACT) | 2020 7

Part 1

Legal obligations under Working with

Vulnerable People registration

Screening Checks (ACT) | 2020 8

This part covers:

► when is Working with Vulnerable People registration required by law?

► exemptions from the requirement to obtain registration

► summary of an organisation’s Working with Vulnerable People obligations

Whenever your not-for-profit organisation is recruiting employees or volunteers or assigning new responsibilities, it’s important to conduct appropriate screening procedures.

The ACT Working with Vulnerable People (Background Checking) Act 2011 (ACT) (WWVP Act) requires that ‘Working with Vulnerable People' (WWVP) registration be undertaken by a person before certain ‘regulated activities and services’ can be performed. Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who has failed to undertake the check.

In some circumstances, WWVP registration must be undertaken according to law. Even when not required by law, there may be circumstances where an organisation decides that WWVP registration is required to work or volunteer in particular roles. However, if a worker will never have contact with children or other vulnerable people, there is no need for them to obtain WWVP registration.

When is WWVP registration required by law?

In the ACT, the WWVP Act requires people who perform ‘regulated activities’ to have a background check and to be registered. If your organisation offers roles where ‘regulated activities’ are performed then you should carefully consider if your employees and volunteers need to obtain WWVP registration.

What 'regulated activities' require WWVP registration?

Regulated activities are defined under Schedule 1 of the WWVP Act – we’ve listed them below.

The regulated activities began in different years depending on the type of activity or service. The latest roll out period ended in November 2018, so as of that date all workers and volunteers undertaking regulated activities are required to be registered.

Legal obligations under Working with Vulnerable People registration

Note

Your organisation may be required by law to ensure that an employee or volunteer has obtained WWVP registration. Your organisation may also consider conducting other checks such as police checks and reference checks. You should ensure that only tests or checks relevant to the position on offer are required. Decisions made on the results of checks not relevant to a role could be challenged by an applicant.

Screening Checks (ACT) | 2020 9

Regulated activities

• Activities or services for children including:

– child protection services

– justice facilities for children

– childcare services

– child education services

– child accommodation services

– counselling and support services for children, and

– commercial services for children

• services for homeless people

• services for victims of crime

• community services

• disability services

• respite care services

• religious organisations

• coaching and tuition

• vocational and educational training

• clubs, associations and movements

• services for migrants, refugees and asylum seekers

• housing and accommodation

• prevention of crime

• emergency services personnel

• transport

• mental health

• justice facilities

• services for addictions

Registration is required for anyone ‘engaged in’ a regulated activity, which means that they have contact with a vulnerable person as part of engaging in the activity in any capacity (for example, as a paid employee or an unpaid volunteer).

‘Contact’ is defined as contact that would reasonably be expected as a normal part of the activity and is not incidental to taking part in the activity. It may be physical contact (including being in the same place as the other person), oral or written communication or making a decision that affects the vulnerable person.

A ‘vulnerable person’ is a child (under 18), or an adult who is experiencing disadvantage and accesses a

regulated activity or service related to the disadvantage.

If your organisation’s employees or volunteers will have contact with a vulnerable person you need to consider whether the person’s role falls within one of the classes of activities or services specified in Schedule 1 of the WWVP Act.

Tip

If you are uncertain as to whether your employee or volunteer will be working or volunteering in a regulated activity and whether they are required to be registered you can use the online tool developed by Access Canberra.

Screening Checks (ACT) | 2020 10

WWVP registration exemptions

Not everyone who encounters vulnerable people as part of their work or volunteering activities needs to be registered. The WWVP Act outlines the circumstances under which a person does not need to be registered. This includes where the person:

• is under 16 years old

• doesn’t work or volunteer with vulnerable people for more than three days in any four week period and seven days in any 12 month period (other than an overnight camp for children)

• is registered under a corresponding law in another State or Territory and the activity is substantially similar to the regulated activity permitted by the corresponding law, as long as they do not work or volunteer with vulnerable people for more than 28 days in any 12 month period

• is a close relative of the vulnerable people they work or volunteer with

• is a close relative of a vulnerable person they are volunteering with, as long as a close relative of each vulnerable person involved also participates. For example, an event or class for children where a parent of each child is participating

• is engaged in the activity in the same capacity as the vulnerable person (for example, a work colleague or team-mate)

• is a school student on a work experience placement or doing practical training

• is an employer or supervisor of a vulnerable person, unless the vulnerable person is engaged in a regulated activity (so a person supervising a school student on a work experience placement at a childcare centre is required to be registered)

• is working or volunteering as a police officer, an Australian Federal Police appointee, a registered health professional or health practitioner, a lawyer, a staff member of an approved aged care provider or a financial services licensee

• works for a government agency and will only have contact with the vulnerable person by providing a service at a public counter or shopfront or by telephone

• will only be providing information to, or receiving information from, the vulnerable person by telephone, or will only work with a record of the vulnerable person

• is working or volunteering in a declared state of emergency

• is working or volunteering for an ACT or national event and the Commissioner for Fair Trading of the Australian Capital Territory (the Commissioner) declares that the person is not required to be

registered for the activity. for example the Paralympics and World Youth Day, or

• is a person otherwise described in a relevant regulation

Summary of an organisation’s WWVP obligations

An organisation that undertakes or supervises a regulated activity or service with or for vulnerable people must ensure its workers comply with the WWVP Act. This includes ensuring:

• employees and volunteers are registered if they are going to work or volunteer with vulnerable people in a regulated activity or service

• an employee or volunteer is supervised if this is necessary (for example, if it is a condition of their registration or while they are waiting on a decision about their registration – see part 2 of this guide for more detail)

• the Commissioner is given written notice if an organisation has engaged a role-based registered person (discussed further in part 2 of this guide), and there is a change in a program or regulated activity in

Caution

A worker may fall into one of the WWVP registration exemptions when starting out in a role, but when circumstances change, they may not be able to continue to rely on the exemption.

Screening Checks (ACT) | 2020 11

which the role-based registered person is engaged that is likely to affect the conditions of the person’s registration

• employees and volunteers issued with a negative notice do not work or volunteer in a regulated activity (supervised or unsupervised)

• employees or volunteers renew their WWVP registration prior to the expiry of the three year registration validity period (see part 3 of this guide), and

• employees and volunteers do not continue to work in regulated activities if their registration has expired

Caution

Due to COVID-19, registrations held by workers or volunteers expiring on or after 15 March 2020 will automatically be extended. Renewal notices will be sent out after the end of the declared health emergency. See the WWVP page of Access Canberra’s website.

Tip

Organisations can use WWVP registration as one of several screening and monitoring tools.

Reference checks, police checks and organisational supervision and training are all ways to ensure the safety of staff and clients, as well as assisting in finding the most suitable applicant when recruiting. Your organisation will need to wait until the check is complete before the worker starts working or volunteering unless an exemptions applies or the person engaging in a regulated activity is awaiting the outcome of their registration application and is supervised at all times while undertaking that activity (see part 2 of this guide for more detail).

Screening Checks (ACT) | 2020 12

Part 2

Working with Vulnerable People

registration applications

Screening Checks (ACT) | 2020 13

This part covers:

► how can employees or volunteers apply for a WWVP registration card?

► what if a new employee or volunteer already has a WWVP registration card?

► what happens once a WWVP application has been lodged?

► what happens if an applicant does not pass a WWVP risk assessment?

Applying for and maintaining a WWVP registration requires a few steps.

How can employees or volunteers apply for a WWVP registration card?

The employee or volunteer applies online at the Access Canberra website for a WWVP registration check.

The application will require them to outline the purpose of their registration as a volunteer or employee and to state whether they are applying for:

• general registration to work with both children and disadvantaged adults

• conditional registration to work with children only, or

• conditional registration to work with disadvantaged adults only

After completing the online application form, a consent form will be emailed to the applicant. The applicant then takes the signed consent form to Access Canberra’s Service Centre along with proof of identity documentation. The applicant will need to pay the prescribed fee if they are not a volunteer and if they have not paid online, and they will have their photo taken.

Note – the applicant can print off the online form and lodge the application by post or can call Access

Canberra and request a paper form be sent to them.

For successful applications, a WWVP registration card is sent by post to the applicant. The applicant can contact Access Canberra to enquire about the status of their application through the Access Canberra website.

Can a person begin work once they have applied for WWVP registration?

If a person has applied for registration and hasn’t been informed of a decision on the application, they can work with a vulnerable person if:

• the employer (or volunteer organisation) agrees

• the organisation was named as the employer on the application

• the person has not previously been refused registration or had a conditional, suspended or cancelled registration, and

• the person is supervised at all times by a registered person while undertaking the activity

Working with Vulnerable People applications

Screening Checks (ACT) | 2020 14

The onus is on the employer (or volunteer organisation) to ensure that the worker is properly supervised during this interim period.

However, some organisations choose to require an employee or volunteer to have received their card before starting regulated services.

As a matter of best practice, we suggest that your organisation takes this approach, especially as it can take up to 20 business days or longer to process a WWVP registration.

Note, there may be delays in processing WWVP registrations associated with the impact of COVID-19.

How much does a WWVP application cost?

For paid staff, the application fee is $135.00 as at November 2020. Registration is free for volunteers. For updated information on fees see the Access Canberra website.

Should organisations pay the costs of WWVP application for employees?

There is no legal requirement for an organisation to cover the costs of an employee undertaking a WWVP application. However, some organisations choose to reimburse WWVP applicants who will be working with the organisation.

What if a new employee or volunteer already has a WWVP card?

The WWVP card is designed to be portable within the ACT. The new employee or volunteer must present their WWVP card to your organisation. To verify the validity of the card, you can call Access Canberra (13 22 81) and quote the WWVP card number of the employee or volunteer.

What happens once a WWVP application has been lodged?

Once a WWVP application has been lodged, processing can take up to 20 business days or longer due to delays associated with the impact of COVID-19. The Commissioner carries out a risk assessment on the applicant, which includes checks of their criminal history and past conduct (see part 3 of this guide for more detail).

Applicants who pass the WWVP risk assessment will receive a WWVP registration card in the mail. The card is valid for three years. However, see below under ‘ongoing monitoring of WWVP card holders’ (part 3 of this guide), as there are circumstances in which an applicant’s continued eligibility to the card will be subject to review.

In the ACT, there are different possible outcomes to an application for registration:

• General registration

This is the most common form of registration and allows the holder to move between regulated activities and employers for up to three years. The WWVP card has a distinctive purple trim

• Role-based registration

This form of registration restricts the holder to work only in specified regulated activities with a stated employer. The WWVP card has a distinctive aqua trim.

• Conditional registration

This form of registration imposes specific conditions on the holder. The conditions are listed on the back of the registration card.

Tip

In most circumstances, if the WWVP registration relates to employment, this expense may be claimed as a deduction from taxable income.

Screening Checks (ACT) | 2020 15

Both the employee (or volunteer) and the employer (or volunteer organisation) commit an offence if any of the conditions are breached. (See below for further information.) The WWVP card has a distinctive blue trim

• No registration (a negative risk assessment)

This is where Access Canberra assesses a person and is satisfied that the person poses an unacceptable risk of harm to a vulnerable person. The person will not be registered to work or volunteer with vulnerable people attending or accessing a regulated activity (see below for further information, including the issue of a proposed negative notice and how to respond to the notice).

A person who is given a negative notice or whose registration is cancelled must not reapply for registration for three years, unless relevant information about the person has changed.

Further details on 'Role based' and 'Conditional' registration

Role-based registration and conditional registration are features of the ACT's WWVP scheme.

• Role-based registration

Role-based registration may be considered where an applicant has a criminal record but, based on the overall risk assessment, is deemed to be suitable to work with vulnerable people on the condition they engage only in stated regulated activities for a stated employer.

Employers have a role to play regarding role-based registration in respect of both the application process and ongoing supervision (if role-based registration is granted).

In the application process, an employee or volunteer who has a relevant criminal history can enlist the support of the employer to make a specific application for role-based registration. For example, if a person has a past conviction for violence (where the violent act may have had no direct nexus to the care of children or the well-being of family members) the applicant and the employer are able to submit relevant information as part of the application process. In fact, as part of the application of role-based registration, the employer must submit a statement regarding the proposed role and a risk management strategy (see below).

The underlying purpose of this provision is to strike a balance between the protection of vulnerable people and the right of people to obtain gainful employment, particularly where they have already served time or paid a penalty in accordance with the criminal justice process.

• Conditional registration

Conditional registration will apply if a person is deemed unsuitable for a particular task due to their criminal record or other relevant information obtained as part of the WWVP risk assessment.

Registration is granted, subject to particular conditions. For example, a condition might be that the person can’t drive a vehicle if a vulnerable person is a passenger.

Applying for role-based or conditional registration

As part of the application for conditional or role-based registration, the employer must submit a statement regarding the proposed role and a ‘Risk Management Strategy’. These requirements are set out in the Working with Vulnerable People (Background Checking) Regulation 2012 (the Regulations).

In accordance with the Regulations, Access Canberra has published a 'Guide to the Employer Risk Management Strategy' to assist with the discharge of employers’ responsibilities arising from the WWVP Act.

The Risk Management Strategy is an eight-part document that should demonstrate to the Commissioner what policies, procedures, governance and training are implemented by the proposed employer of a

Example

The WWVP Act gives an example of role-based registration – an applicant with a criminal history is given permission to work as a counsellor in a correctional centre.

Screening Checks (ACT) | 2020 16

conditional or role-based applicant to satisfactorily manage the applicant’s risks. This includes added responsibilities to notify Access Canberra of any changes to the employment arrangements.

What happens if an applicant is not given general WWVP registration?

Where an application for WWVP registration doesn’t result in general registration and the Commissioner instead proposes to issue:

• a role-based registration

• a conditional registration, or

• a negative notice (ie. no registration),

the applicant will be informed in writing (with the reasons provided) and given an opportunity to submit relevant material to be reviewed by the decision-maker. This triggers a revised risk assessment.

If, after the revised risk assessment, the applicant is still not satisfied with the decision, the option exists to appeal to the ACT Civil and Administrative Tribunal (ACAT) within 28 days of Access Canberra's notification of its revised risk assessment.

Note – in the ACT, the WWVP Act sets out requirements in relation to the conduct of risk assessments. This includes that the Commissioner must have a panel of at least seven people to act as independent advisors.

In making a risk assessment, the Commissioner may ask at least three of these independent advisors for advice as to whether to give a person a role-based registration or on any other aspect of a risk assessment for a person (section 34 of the WWVP Act).

The request for advice must be made, and the advice itself must be given, in accordance with risk assessment guidelines. The WWVP Act sets out particular requirements that must be included in the guidelines.

Access Canberra must not inform the employer of a conditional or role-based registration or a negative notice while it’s still in proposed form. Access Canberra will only inform the employer once the decision is final and the conditional or role-based registration or negative risk assessment notice is issued (ie. after the applicant has had the chance to respond).

Note also – Access Canberra can’t inform the employer of the rationale supporting the issuing of a negative

risk assessment notice.

Related resources

The basis of these types of registration and examples of how they may apply can be found under section 42 of the WWVP Act.

Screening Checks (ACT) | 2020 17

Part 3

What does a Working with Vulnerable

People risk assessment do?

Screening Checks (ACT) | 2020 18

This part covers:

► what does a WWVP risk assessment take into account?

► ongoing monitoring of WWVP card holders

► are there limits to what WWVP registration scheme can achieve?

WWVP risk assessment is a unique process, distinguished from Police Checks by the different registers it checks, and its ongoing nature.

Understanding how WWVP risk assessment works will help your organisation determine what role it should play in your risk management strategy.

What does a WWVP risk assessment do?

When a WWVP registration application is submitted, the risk assessment considers the following:

• criminal history information deemed to be relevant to working with vulnerable people (for example, convictions for sexual offences, violent offences, drug offences, dishonesty or fraud, animal cruelty and driving offences)

• past WWVP registration history

• non-conviction information

• consideration of disciplinary issues

• relevant information in any supporting information supplied with an application, such as supporting information from an applicant’s employer, counsellor, psychotherapist or other health practitioners

• information that Access Canberra may request from any person believed to have information relevant to decide the application, such as people mentioned above, as well as other regulatory or authorising authorities, independent advisors and law enforcement agencies, and

• the applicant must also disclose, as part of the application process, whether they have been convicted or found guilty of a relevant offence in Australia or overseas

What does a Working with Vulnerable People risk assessment do?

Note

In August 2018, the Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1) (the Guidelines) came into force. The Guidelines provide a framework for determining whether an applicant poses an unacceptable risk of harm to a vulnerable person when engaging in a regulated activity.

Included in the Guidelines are factors to be considered by the commissioner when conducting a risk assessment for the purposes of the WWVP Act, including how to identify, analyse and evaluate risks.

Screening Checks (ACT) | 2020 19

Ongoing monitoring of WWVP registrations

A WWVP registration card is valid for a period of three years unless revoked earlier.

For holders of a WWVP registration

During the three-year validity period, WWVP card holders must advise the Commissioner within 10 days about any relevant change in circumstances, including:

• being charged with or convicted of a relevant offence

• change of name, or

• change of address

See Access Canberra’s website for contact details.

For organisations

During the period of registration, the Commissioner has the power to request information or advice from an entity the Commissioner considers may be able to give information or advice as to whether the registered person continues to pose no risk, or an acceptable risk of harm to a vulnerable person (for example, an updated criminal history from the Police).

In addition, where the Commissioner believes that there is new relevant information about a registered person, then a risk assessment must be undertaken and the person advised that an additional risk assessment is being undertaken.

The Commissioner may leave the person’s registration unchanged, or amend (add or remove) a condition from the person’s registration.

If changes are made, the person’s employer (or volunteer organisation) will be notified of the change but not the grounds for the change.

It’s important to ensure your organisation is nominated as a place of work for employees and volunteers with an existing WWVP card.

Organisations must ensure that WWVP cards are renewed by their workers every three years.

Caution

The holder of the card commits an offence if they don’t advise the Commissioner in writing that they have been charged with a relevant offence within 10 working days after the day they were charged (50 penalty units).

The holder of the card also commits an offence if they don’t advise the Commissioner in writing that they have changed their name or address within 10 working days after the day the change is laid (10 penalty units). As at November 2020, each penalty unit corresponds to $160 for individuals.

Screening Checks (ACT) | 2020 20

Taking the following steps may help your organisation keeps up to date on team members and their WWVP status:

• physically sight and record their WWVP card (or their application receipt) when they join your organisation and record associated information such as expiry date

• keep a photocopy of both sides of the WWVP card, information and notices on file and keep a record of the employee and volunteer WWVP status, including whether the person's registration is:

– general

– role based, or

– conditional

• ensure information is filed in a safe, secure place and in accordance with the following principles:

– ensure stored information is accurate, complete and up to date

– protect the information from misuse, loss, unauthorised access, modification or disclosure (including by allocating file identification systems to prevent files being misplaced)

– have a clearly expressed policy available upon request detailing the management of personal information by your organisation, and

– allow people to access their own information and to correct inaccuracies

• assign responsibility for monitoring your WWVP register to ensure that it is up-to-date, and

• set up systems to ensure you organisation keeps track of when current WWVP cards will expire

Note

Access Canberra undertakes proactive compliance activities to ensure that stakeholders in the ACT who have contact with children or vulnerable people while working in a regulated activity or service comply with their obligations under the Act. You can read more about Access Canberra’s compliance program on its website.

Caution

An employer commits an offence if it employs a person in a regulated activity who is not registered to do so (this brings with it a penalty of 50 penalty units).

If it’s proven the employer knows, or is reckless about whether they are engaging the person in a regulated activity and the person is required to be registered to engage in the activity, the penalty increases to 200 penalty units or imprisonment for two years or both.

As at November 2020, each penalty unit corresponds to $810 for an organisation.

Screening Checks (ACT) | 2020 21

Are there limits to what WWVP registration can achieve?

Remember that the WWVP scheme is only one way of reducing the risk of recruiting or associating with people who may be unsuitable to work with vulnerable people. No background check by itself can guarantee a person’s suitability, and organisations should make sure they have internal policies and procedures to ensure the safety of all who interact with the group – particularly those in a position of vulnerability such as children.

Tip

There are a number of volunteer management software systems that may assist your organisation with this process and ensuring thorough and systematic screening takes place (see Volgistics, eCoordinator and Volunteer Impact).

Screening Checks (ACT) | 2020 22

Part 4

Police Checks

Screening Checks (ACT) | 2020 23

This part covers:

► an overview of Police Checks

► the differences between WWVP registration and Police Checks

WWVP registration is an important check, but it’s not the only check your organisation can undertake.

As part of your risk management strategy, even if you must undertake a WWVP risk assessment, consider whether any other checks would also be appropriate.

Does the WWVP scheme differ from a Police Check?

Yes. If a volunteer or employee is required to undertake a WWVP risk assessment, it will not matter whether they have recently had a Police Check (sometimes called a National Police Check or Criminal Record Check) as these two screening procedures are established for different purposes.

The WWVP risk assessment focuses on specific offences (those that may impact on the safety of vulnerable people), and unlike Police Checks, the WWVP registration is ‘ongoing’. This means the applicant’s criminal record is monitored throughout the life of the WWVP card. The WWVP risk assessment includes checking with certain information sources, including employers (both past and present) and law enforcement agencies.

Your organisation may wish to conduct both WWVP assessment and Police Checks depending on the nature of the work being conducted by your staff or volunteers.

A Police Check allows an organisation to be aware of all (releasable) previous convictions – child-related or not. This may be appropriate if you are seeking an employee or volunteer who, for example, may be handling money or driving clients between locations.

Police Checks

Caution

If you decide that applicants are required to undergo a Police Check before recruitment, you can’t refuse an applicant because they have a prior conviction, if the offence has no relevance to the available position. There are legal protections against discrimination on the basis of criminal record.

However, your organisation has obligations to create a safe and effective environment, and you can refuse an applicant on the basis of a criminal past when you believe that the prior offence prevents the applicant from performing the ‘inherent requirements’ of the position. See the Australian Human Rights Commission website for more information.

Screening Checks (ACT) | 2020 24

How does the WWVP scheme and Police Checks differ?

WWVP scheme (ACT) Police Checks

Who conducts the check?

The check is submitted to Access Canberra by the person.

The check is submitted to the Police by the person or by an organisation on their behalf (with consent).

Organisations may also engage a third party agency to manage the process.

What is checked?

National criminal records (across all states and territories), professional conduct reports and other relevant information.

National criminal records.

What is revealed by the checks?

Serious criminal charges, offences, findings of guilt and professional conduct reports that may be relevant to the safety of children and other vulnerable people, such as serious sexual, violent or drug crimes.

Police make an assessment that takes into account the category and purpose of the check and any relevant legislation and information release policies. Police then determine the details they will release to the individual or organisation requesting the check.

The details released may include court outcomes with a finding of guilt (including those ‘without conviction’), good behaviour bonds or other court orders, outstanding charges and matters awaiting hearing certain (criminal) traffic offences, whether child-related or not.

What is the outcome?

There are four possible results in the ACT:

• general registration

• role-based registration

• conditional registration, and

• negative notice

There is no pass or fail – a list of court outcomes with a finding of guilt is produced from the national criminal record.

It is up to the organisation to assess whether or not any of the listed outcomes may impact on the work of the volunteer.

How long is it valid for?

Three years. It’s current only at the time of the check.

Is it an ongoing check?

Yes – over the three years there is a ‘rolling check’ system and the organisation is notified if the check reveals anything related to the person’s suitability to work with vulnerable people.

No – it’s a ‘point in time’ check and will only list the offences at the time of the check.

Is the check transferable?

Yes – a WWVP card is 'portable' between different roles during the three year life of the card.

No – organisations should require a new check, even if someone had a check completed recently – as an organisation needs to be sure that all relevant matters have been disclosed by the police.

Screening Checks (ACT) | 2020 25

Part 5

NDIS Worker Screening Checks

Screening Checks (ACT) | 2020 26

This part covers:

► Worker Screening Checks for NDIS providers

► transition period for NDIS Worker Screening Checks

► what does the NDIS Worker Screening Check include?

► record keeping requirements for NDIS providers

► exemptions from NDIS Worker Screening Checks

The NDIS Worker Screening Check is an assessment of whether a person who works, or seeks to work, with people with a disability poses a risk to them. The assessment determines whether a person is cleared or excluded from working in certain roles with people with a disability.

The requirements relating to Worker Screening Checks for registered NDIS providers are set out in the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (the Practice Standards). Registered NDIS providers are responsible for ensuring that their workers have the necessary

clearances so that the Practice Standards are met.

On 1 February 2021, states and territories will start implementing the new nationalised NDIS Worker Screening Checks as part of a uniform national approach to worker screening.

A NDIS Worker Screening Database will also be rolled out nationally, which will have a register of cleared and excluded workers from all states and territories.

Currently states and territories have transitional and special arrangements in place which specify the alternative checks and clearances that are acceptable before the national NDIS Worker Screening Check is rolled out.

Transition period for NDIS Worker Screening Checks

As the transitional and special arrangements differ between the states and territories, if a worker has an acceptable check in one state or territory, this is not portable to another state or territory. This means that workers of registered NDIS providers delivering services and supports to people with disability in a number of states or territories must have an acceptable check in each state or territory in which they work.

The ACT began a transition period on 1 July 2019.

Acceptable checks – Australian Capital Territory

All registered NDIS providers delivering supports and services in the ACT must ensure that any person engaged in a ‘risk assessed role’ (explained below) meets the following requirements:

• the person is registered to engage in a regulated activity under the WWVP Act, and

• the registration allows the person to engage in the role concerned

After the end of the transition period, a person engaged in a risk assessed role that met these requirements during the transition period may continue to work in the role for three years or until the registration expires – whichever is earlier.

NDIS Worker Screening Checks

Screening Checks (ACT) | 2020 27

From 1 February 2021 workers delivering NDIS support and services without a valid check will be required to have a clearance issued under the new NDIS Worker Screening Check arrangements.

Risk assessed roles

Registered NDIS providers are responsible for identifying which roles are risk assessed roles, and making sure that all workers in these roles have an NDIS Worker Screening Clearance or an acceptable check under the transitional and special arrangements.

Under the Practice Standards, workers may only be engaged in a ‘risk assessed role’ if the worker has a clearance, subject to the exceptions discussed below.

A risk assessed role includes:

• a ‘key personnel role of a person or an entity’ as defined in s 11A of the National Disability Insurance Scheme Act 2013 (for example, a CEO, board member or other key personnel)

• a role for which the normal duties include the direct delivery of specified supports or services to a person with a disability (see link for list of specified services and supports), and

• a role for which the normal duties are likely to require ‘more than incidental contact’ with people with disability, which includes:

– physically touching a person with disability

– building rapport with a person with disability as an integral and ordinary part of the performance of normal duties, or

– having contact with multiple people with disability as part of the direct delivery of a specialist disability support or service, or in a specialist disability accommodation setting

What does the NDIS Worker Screening Check include?

The NDIS Worker Screening Check will be conducted by NDIS worker screening units. The NDIS worker screening unit makes the decision about whether a person is cleared, excluded or on an interim bar (in this case further information will be required to determine whether the person will be cleared or excluded).

Registered NDIS providers will need to ensure they only engage workers who have a cleared status. The NDIS Worker Screening Check will enable registered NDIS providers to engage a worker with a valid clearance from any state or territory to deliver NDIS support and services in a risk assessed role.

The new NDIS Worker Screening Check will take into account:

• any police or government information (including convictions, current and pending charges)

• apprehended violence orders

• child protection information (included child protection orders)

• workplace misconduct (complaints or incident reporting)

• international police check (for persons who have worked overseas)

The check will then be submitted to the NDIS Worker Screening Database run by the NDIS Commission. NDIS providers and individuals will need to apply to the NDIS Commission to access the information stored on the database.

Example

Lee works for a mobility equipment company that is a registered NDIS provider and delivers mobility equipment to the homes of people with a disability. Lee provides training, support and instructions to the customers as a standard part of his role. Lee’s registered NDIS provider will need to ensure Lee has a Worker Screening clearance (or an acceptable check under the transitional and special arrangements, explained below) as the nature of Lee’s contact with the customer is likely to lead to Lee building rapport with the customer.

Screening Checks (ACT) | 2020 28

NDIS provider record keeping requirements

For each risk assessed role, registered NDIS providers are required to document:

• the title or other organisational identifier for the role

• the paragraph or paragraphs of the definition of risk assessed role (as contained in the Practice Standards) that applies to the role

• a description of the role, and

• the date the role was assessed and the name and title of the person who made the assessment

When a new risk assessed role is identified, the written list of roles must be updated within 20 business days of the identification or review of the risk assessed role.

For each risk assessed worker, NDIS providers are required to document:

• the full name, date of birth and address of the person

• the risk assessed role or roles in which the person engages

• if the worker may engage in a risk assessed role without an NDIS Worker Screening Clearance:

– the basis on which they may do so

– the start and end date of the period in which the exemption that allows them to work in a risk engaged role applies

– the name of the person who supervises the worker during this period

• the worker’s NDIS Worker Screening Check application reference number

• the worker’s NDIS Worker Screening Check outcome expiry date

• whether the worker’s NDIS Worker Screening Clearance is subject to any decision which has the effect that the registered NDIS provider may not allow the worker to engage in a risk assessed role, and the nature of any such decision (for example, interim bar, suspension, exclusion)

• records relating to an interim bar, a suspension, an exclusion, or any action taken by the provider in relation to these kinds of decisions in relation to any worker and

• allegations of misconduct against a worker with a check and the action taken by the registered NDIS provider in response to that allegation

A record must be kept for seven years from the date the record was made.

Exceptions

A registered NDIS provider may engage a person in a risk assessed role who does not have an NDIS Worker Screening Clearance if:

• the registered NDIS provider is subject to the transitional and special arrangements and is complying with those arrangements

• the person is a school student on a formal work experience placement, provided the student is directly supervised by another worker who has an NDIS Worker Screening clearance or acceptable check under the transitional and special arrangements

• in some circumstances, the person has submitted an application for an NDIS Worker Screening Check, provided the worker is ‘in the process of obtaining a clearance’ as def ined by the Practice Standards. In these circumstances, the registered NDIS provider must ensure that the worker is:

– appropriately supervised by a person with an NDIS worker screening clearance, and

– the NDIS provider implements a risk management plan in line with the requirements in the Practice Standards

Interstate workers

Until the NDIS Worker Screening Check takes effect on 1 February 2021, a registered NDIS provider needs to ensure that all workers who are required to work interstate have an acceptable check in each state or territory where the worker is engaged in a risk assessed role to provide NDIS support and services.

Screening Checks (ACT) | 2020 29

Tip

Visit the NDIS Commission website to ensure your organisation is compliant with the Worker screening transitional and special arrangements.

Screening Checks (ACT) | 2020 30

Part 6

Other checks

Screening Checks (ACT) | 2020 31

This part covers:

► other discretionary background checks

► managing volunteers and employees in or from other states and territories

► child safety law reform relating to background checks

Discretionary background checks

Even where there is no legislative requirement that Police Checks and other discretionary background checks be performed, organisations ought to undertake some level of screening for volunteers and employees. This is because all organisations have a responsibility to ensure they maintain a safe environment for their employees, volunteers and clients. Due to this overarching duty of care, organisations should always try to be informed about the people they select as their representatives.

From a practical perspective, undertaking informal background checks, such as asking for referee details and performing licence and qualification checks (and possibly asking for details of any potential conflicts of interest) is certainly a good way for an organisation to assure itself that it is making the right choice when recruiting a new employee or volunteer.

Screening for interstate employees and volunteers

WWC Checks

Interstate WWC Checks are only valid for work in the state in which they are issued.

If an employee or volunteer has a Check or Card from another state or territory and wants to work in the ACT, they will likely also need to obtain a WWVP card, depending on the circumstances.

If workers of your organisation are travelling to another state or territory outside of the ACT and will engage in child-related work, you need to ensure that you comply with the laws of the particular state you visit – which may mean having a valid WWC Check for that state.

Generally, most states will recognise the WWC Check of a worker from another state, if they are visiting and working on a short-term basis.

Other checks

Caution

While finding the right person to fill a vacant role is important, an organisation has an overarching duty to provide a safe environment for staff, volunteers and clients. Good screening procedures when recruiting is a key way for organisations to try and address problems before they arise.

Screening Checks (ACT) | 2020 32

However, if your organisation’s employees or volunteers work in multiple jurisdictions on a regular basis, it’s likely that they will need a WWC check for each state. It’s also worth pointing out that the offences considered relevant for the purposes of a WWC Check differ across States and Territories.

Police Checks

The Police Check will display all (releasable) court outcomes from all states and territories of Australia (see part 4 of this guide for more detail).

If your organisation engages an employee or volunteer that has been living overseas, your organisation may decide to ask for an international police check, which can be obtained from the law enforcement body for each relevant country.

Information on obtaining a police check from an overseas government or law enforcement authority can be found on the Australian Department of Home Affairs website.

Child safety reforms and screening

The Council of Australian Governments (COAG) has been working towards law reform to harmonise the laws between states and territories and published a ‘National Framework for Protecting Australia’s Children 2009-2020.’

This is a broad, long-term initiative aimed at reforming the child protection system and creating uniform laws across states and territories. COAG aims to develop a nationally consistent approach to WWC Checks and child safe organisations across jurisdictions.

This is likely to include unifying the WWC Check system across our states and territories. Further reform and consolidation of legislation will help to establish an inter-jurisdictional exchange of information regarding people working with children.

If new legislation comes into force, your organisation may need to comply with different rules regarding its employees and volunteers. It is important to be aware of the changes as they take place, and to ensure that your organisation continues to meet the legislative requirements.

Note

It is important to check the applicable scheme in each state and territory and whether any exemptions for interstate visitors apply.

Relevantly, The Royal Commission into Institutional Responses to Child Sexual Abuse‘s 2015 report on Working with Children Checks (WWCC Report) contains recommendations around the implementation of a nationally-consistent scheme.

Further reading

For more information about creating a child-safe organisation see the ‘National Framework for Protecting Australia’s Children 2009-2020’, and the Department of Social Services’ website for resources on building the capacity of child-safe organisations as well as guidelines on building this capacity.

Screening Checks (ACT) | 2020 33

Further reading

The ACT's Children and Young Person's Commissioner has released a resource sheet to help build child safe organisations.

Further reading

Moores, together with Our Community, have also created a Child Protection Toolkit for not-for-profit organisations, to help them comply with these standards and other legislative requirements. The Toolkit discusses child safe recruitment processes, creating a child safe culture and various reporting obligations.

It also includes a sample Child Protection Policy and Child Safety Code of Conduct (that can be tailored to your organisation).

Screening Checks (ACT) | 2020 34

Related Not-for-profit Law resources

The Not-for-profit Law website has resources on the following related topics:

► The People Involved

This webpage covers the special obligations and rights that apply to relationships between an organisation and their employees, volunteers, clients and members, including privacy issues.

► Risk and Insurance

You can download Not-for-profit Law’s Risk Management and Insurance Guide from this section of our website.

Legislation

► Working with Vulnerable People (Background Checking) Act 2011 (ACT)

► Working with Vulnerable People (Background Checking) Regulation 2012 (ACT)

► Working with Vulnerable People (Background Checking) Risk Assessment Guidelines 2018 (No 1) (ACT)

► National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Cth)

Other related resources

► Access Canberra

This website provides information on Working with Vulnerable People including relevant online forms and updating details on-line.

► Access Canberra – general resources

This page provides a list of resources to help people understand the Blue Card system, including information for specific industries, such as disability services.

► CrimCheck

CrimCheck is a not-for-profit organisation that assists other not-for-profit organisations with the processing and management of police checks for their employees and volunteers along with general support and education around the process.

► Australian Criminal Intelligence Commission

The Australian Criminal Intelligence Commission (formerly CrimTrac) is the national information-sharing service provider for Australia's police, wider law enforcement and national security agencies. It offers a National Police Checking Service and has further information about the National Police Check process.

► Department of Social Services, National Framework for Protecting Australia’s Children 2009–2020

Resources

Screening Checks (ACT) | 2020 35

► NDIS Commission

The NDIS Commission website provides up to date information and has a variety of useful resources for NDIS registered providers, workers and participants to access at any time.

Screening Checks (ACT) | 2020 36