Families SA
Child Safe Environments:
Standards for dealing with information obtained
about the criminal history of employees and
volunteers who work with children
Issued by the Chief Executive,
Department for Families and Communities
(Section 8A, Children’s Protection Act 1993 (SA))
Version:
November 2007
Acknowledgements
The Department for Families and Communities would like to thank the following
organisations for participating in the consultation:
•
Association of Independent Schools of South Australia (AISSA)
•
Association of Professional Engineers, Scientists and Managers, Australia
(APESMA)
•
Attorney-General’s Department
•
Australian Liquor, Hospitality and Miscellaneous Workers' Union (LHMU)
•
Australian Nursing Federation (ANF)
•
Catholic Archdiocesan
•
Catholic Education SA
•
Department of Education and Children's Services (DECS)
•
Department of Further Education Employment Science and Technology
(DFEEST)
•
Department of Health
•
Local Government Association of South Australia
•
Office for Recreation & Sport
•
Office for Volunteers
•
Public Service Association (PSA)
•
South Australia Police (SAPOL)
•
South Australian Salaried Medical Officers Association (SASMOA)
•
Teachers Registration Board of South Australia (TRB).
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Contents
Child Safe Environments: ........................................................................................... 1
Standards when dealing with information obtained about the criminal history of
employees and volunteers who work with children..................................................... 1
Acknowledgements .................................................................................................... 2
Contents ..................................................................................................................... 3
Introduction................................................................................................................. 4
Setting the standards.................................................................................................. 4
Background ................................................................................................................ 6
Legislation .................................................................................................................. 7
Children’s Protection Act 1993 ................................................................................... 7
Child Sex Offender Registration Act 2006 ................................................................ 11
Obtaining and assessing criminal history reports ..................................................... 13
Standard 1: Identifying prescribed functions and prescribed positions ..................... 14
Test to identify which prescribed positions require a criminal history report to be
obtained.................................................................................................................... 16
Standard 2: Developing understandable and accessible procedures to obtain criminal
history reports........................................................................................................... 17
Standard 3: Obtaining criminal history reports in a timely and regular manner......... 20
Standard 4: Accepting other evidence...................................................................... 23
Standard 5: Assessing criminal history reports......................................................... 26
Standard 6: Ensuring procedural fairness throughout the assessment and decisionmaking processes..................................................................................................... 32
Standard 7: Ensuring good practices when dealing with criminal history information35
Glossary of terms ..................................................................................................... 38
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Introduction
The Children’s Protection Act 1993 aims to ensure that all children are safe from
harm and are cared for in a way that allows them to reach their full potential. Recent
amendments focus on the safety of children in organisational settings and encourage
all organisations to provide child-safe environments.
The legislation mandates that all government and certain non-government
organisations 1 obtain criminal history reports for:
•
all personnel having regular contact with children or regularly in close
proximity to children,
•
managers or supervisors of such personnel, and
•
personnel having access to records relating to children.
These standards are issued pursuant to section 8A of the Children’s Protection Act
1993 by the Chief Executive of the Department for Families and Communities. The
Children’s Protection Act 1993 requires (at section 8B(3)) that the standard be
observed in dealing with information obtained about the criminal history of employees
and volunteers who work with children in government and non-government
organisations.
The Chief Executive, Department for Families and Communities, is responsible for
monitoring progress towards child safe environments in the government and nongovernment sectors and reporting regularly to the Minister. Organisations that do not
meet their legislative obligations regarding the establishment and maintenance of
child safe environments may face a fine of up to $10 000.
Setting the standards
These standards are based upon the fundamental principle that every child has the
right to be safe from harm. Obtaining criminal history reports on people who work
with children or have access to children’s records helps to protect children from harm
by:
•
deterring unsuitable people from applying for such work, and
•
preventing people who may pose a risk of harm to children from gaining
positions of trust.
1
Section 8B(6) of Children’s Protection Act 1993 (SA) and the Children’s Protection Regulations 2006
require government organisations and non-government schools to obtain criminal history reports for
each person (whether employee, volunteer, agent, contractor or sub-contractor) occupying or acting in
a prescribed position.
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The implementation of these standards will also ensure the fair and reasonable
management of criminal history information and support the privacy of individuals as
far as reasonably practicable.
The standards reflect the high-level principles of the National Framework of the
Community and Disability Services Ministers’ Conference 2 for assessing information
to determine the risk of harm a person may pose to children. Principles that govern
this risk assessment include:
•
the paramount consideration(s) are the rights, interests and wellbeing of
children and their protection from harm
•
the assessment will be conducted by persons who are appropriately trained
and properly supported
•
the assessment will be recognised as one of a range of organisational
strategies to protect children
•
the assessment will be evidence-based, where evidence exists
•
decisions will be ethical and defensible
•
assessment and decision-making processes will be efficient and timely
•
assessment and decision-making processes will follow principles of natural
justice and procedural fairness
•
procedures will be transparent, documented and consistently applied
•
assessment processes will be accompanied by provisions for review and
appeal against a decision and
•
the privacy of people will be strictly protected, and sensitive and personal
information will be protected from inappropriate disclosure.
The National Framework emphasises the need to engage with Aboriginal and
culturally and linguistically diverse communities when developing and implementing
processes at a local level to deal with criminal history information. 3
These standards aim to promote good practice in organisations and raise awareness
in managers, employees, volunteers, child clients and applicants. These standards
include indicators of compliance. Organisations can measure and audit their
practices and performance against these standards. The standards make explicit
what is expected in dealing with criminal history information, providing a basis for
accountability and challenge, if practices fall below the specified standards. 4
2
Community and Disability Services Ministers’ Conference Schedule: An Evidence-based Guide for
Risk Assessment and Decision-making when Undertaking Background Checking, 2007a.
3
Ibid.
4
Tearfund & NSPCC ‘Setting the Standard’: A common approach to Child Protection for international
NGOs. Tearfund & NSPCC, Middlesex, 2003, p. 6.
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The standards aim to be relevant and achievable while also recognising that different
organisational contexts will pose challenges at times. 5
Organisations may decide to obtain criminal history reports and undertake screening
for many purposes (e.g. working with vulnerable adults, integrity testing, suitability
assessment). While relevant, these standards have been specifically developed for
dealing with criminal history information of employees and volunteers who work with
children. Organisations may be required to develop further policies and procedures to
meet additional obligations.
Criminal history reports are part of a comprehensive screening process undertaken
as part of hiring/volunteer-placement procedures. Organisations are encouraged to
develop their own model screening procedures and interview questions as part of
their hiring/volunteer placement procedures. Organisations should consider a
screening process that incorporates criminal history reports with interviews, reference
checks and other background checks. Although it might be argued that no screening
is necessary for situations in which the prospective volunteer or employee is known
to the organisation, such an informal approach to screening is not recommended. 6
Further information regarding child safe environments and screening and monitoring
of employees and volunteers can be found in the Child Safe Environments: Principles
of Good Practice document.
Background
Child protection requires a commitment from everyone to build environments that are
safe for all children. The amendments to the Children’s Protection Act 1993 seek to
promote a partnership approach between the government, local government, nongovernment organisations and families in taking responsibility for and dealing with
child abuse and neglect.
The Department for Families and Communities is playing a lead role in developing,
advising and guiding the development of child safe environments and appropriate
standards of practice within the child protection system. Additional measures to
promote child safe environments include:
•
the development of codes of conduct and principles of good practice for
working with children
•
providing guidance on how to deal with cases of bullying or harassment of a
child
•
providing guidance on how to deal with suspected abuse or neglect of a child
5
Ibid.
Office of Juvenile Justice and Delinquency Prevention Guidelines for the Screening of Persons
working with children, the elderly and individuals with disabilities in need of support: Summary. US
Department of Justice: Washington, 1988, p. 2.
6
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•
ensuring, as far as is practicable, that procedures for reporting suspected
abuse or neglect are accessible.
Checks of criminal history reports 7 are one step that can be taken in a broader
screening process in order to ensure that the most suitable and appropriate people
are engaged to work with children.
Legislation
Children’s Protection Act 1993
Both government and non-government organisations must ensure that information
about the criminal history contained in reports obtained under the Children’s
Protection Act 1993 is dealt with in accordance with these standards.
Section 8C of the Children’s Protection Act 1993: Organisations that provide
services for children
Certain organisations that provide services wholly or partly for children must, as soon
as practicable following the formation of the organisation, or as soon as possible
following 1 January 2008 (for existing organisations), establish appropriate policies
and procedures for ensuring:
•
that appropriate reports of abuse or neglect are made by mandated notifiers.
•
that child safe environments are established and maintained within the
organisation.
A mandated notifier must notify Families SA of their suspicion as soon as practicable
after he or she forms their suspicions. The individual has the duty to report, not the
organisation. It is therefore not appropriate to transfer this obligation to another
person. Organisations have a duty to ensure that mandated notifiers within their
organisation know how to notify the Child Abuse Report Line.
To establish child safe environments, the specified organisations must develop and
implement policies and procedures that achieve all of the following:
•
take into account the guidance provided by the Chief Executive, Department
for Families and Communities, on appropriate standards of conduct for adults
in dealing with children 8
•
reflect the appropriate standards of care for ensuring the safety of children as
defined by the Chief Executive, Department for Families and Communities
7
also known as National Criminal History Record Checks, police checks or National Police
Certificates.
8
Refer to the Department for Families and Communities Child Safe Environments: Principles of Good
Practice. DFC: Adelaide, 2007.
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•
reflect the standards developed and issued by the Chief Executive to be
observed in dealing with information obtained about the criminal history of
employees and volunteers (where applicable).
This section applies to organisations that:
•
provide health, welfare, education, sporting or recreational, religious or
spiritual, child care or residential services wholly or partly for children
•
are a government department, agency or instrumentality or a local government
or non-government organisation.
This means that certain non-government organisations that choose to obtain a
criminal history report on people who work or volunteer in prescribed positions, must
adopt these standards.
Section 8B of the Children’s Protection Act 1993: Government organisations
and non-government schools
Criminal history reports must be obtained by:
•
government organisations (i.e. government departments, agencies and
instrumentalities)
•
non-government organisations as specified in the Children’s Protection
Regulations 2006.
As at 1 January 2008, for the purposes of this section, non-government organisation
applies to non-Government schools within the meaning of the Education Act 1972.
Government organisations and non-government schools must obtain a criminal
history report on people who work or volunteer in prescribed positions, and must also
develop standards to deal with the criminal history information that reflect these
standards, developed by the Chief Executive, Department for Families and
Communities.
Section 8B(1) of the Children’s Protection Act 1993: Timely and regular checks
of criminal history reports
The responsible authority 9 must ensure:
•
that, as soon as reasonably practicable a report is obtained from South
Australia Police or a prescribed source 10 on the criminal history (if any) of each
9
i.e. the Chief Executive of a government organisation or the managing authority, or its delegate as
specified in the regulations, of a non-government school
10
currently CrimTrac, a Commonwealth executive agency, is the only prescribed source in the
regulations. CrimTrac provides police services and accredited agencies with individuals’ national
criminal history record information subject to relevant Commonwealth, state and territory legislation.
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person occupying or acting in a prescribed position (whether as an employee,
volunteer, agent, contractor or subcontractor) in an organisation for which the
authority is responsible
•
that, before a person is appointed to, or engaged to act in, a prescribed
position (whether as an employee, volunteer, agent, contractor or
subcontractor) in an organisation for which the authority is responsible, a
report on the person's criminal history (if any) is obtained from South Australia
Police or some other prescribed source (i.e. CrimTrac).
It is the responsibility of the Chief Executive or managing authority to ensure
compliance with this provision.
Section 8B(8) of the Children’s Protection Act 1993: Prescribed positions and
prescribed functions
A criminal history report is only required to be obtained of individuals who currently
occupy or act in a prescribed position or who have applied to occupy or act in a
prescribed position.
A position may be either physically or notionally in an organisation to fall within these
provisions. That is:
•
In the conceptual sense, a person will occupy or act in a position in an
organisation when that person’s activities are seen as part of the ordinary
activities of the organisation, or
•
In the physical sense, the person would be in an organisation if the person
worked on or in organisation premises in one of the named capacities
regularly or for significant periods, even if their activities would not ordinarily
be seen as part of the organisation’s usual activities. 11
A prescribed position is a position in an organisation that requires or involves
prescribed functions.
Prescribed functions are those involving any of the following:
11
•
regular contact with children or working in close proximity to children on a
regular basis
•
supervision or management of persons in positions requiring or involving
regular contact with children or working in close proximity to children on a
regular basis
•
access to records relating to children
•
functions of a type prescribed by regulation.
Based on advice provided by Crown, July 2007.
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As at 1 January 2008, there were no further functions specified in the Children’s
Protection Regulations 2006.
The Children’s Protection Act 1993 does not include definitions of regular contact,
regular basis or close proximity. As a result, the terms must be given their ordinary
everyday common sense meanings. For example, generally speaking, the term
regular contact implies contact that has a constant or definite pattern, or which recurs
at short uniform intervals or on several occasions during short periods of time such
as a week. Ultimately, it will be up to the courts to decide what the terms mean in the
context of the Children’s Protection Act 1993.
Sections 8B(2) and 8B(5) of the Children’s Protection Act 1993: Discretionary
powers to obtain a criminal history report at any time
Section 8B(2) creates a discretionary power for the Chief Executive or managing
authority to obtain a criminal history report on certain persons at any time if it is
considered necessary or desirable for the purpose of establishing or maintaining a
child safe environment: This section allows rechecking from time to time of not only
people in prescribed positions in the organisations, but also those carrying out
prescribed functions as indirect service providers.
According to the definition in 8B(8), an indirect service provider is someone who
carries out the prescribed functions for another person or body which makes those
services available to the organisation bound by the provision. Indirect service
providers do not have to be in the organisation. Rather, they provide services for the
organisation.
The Chief Executive, Department for Families and Communities has a discretionary
power under section 8B(5) to obtain criminal history reports for non-government
organisations in certain circumstances. This provision implies that the Chief
Executive, Department for Families and Communities can obtain a criminal history
report notwithstanding that the subject has not consented. This is because the failure
of the employee to co-operate with the responsible authority of the other organisation
is a sufficient although not a necessary precondition to the exercise of the power.
Thus, in the absence of consent, the Chief Executive is empowered to obtain the
report. But non-cooperation by the employee is not a necessary precondition. The
legislation recognises that there may be some other good reason for the Chief
Executive to assist in this regard. 12
12
This interpretation is based on advice provided by Crown.
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Child Sex Offender Registration Act 2006
The Child Sex Offenders Registration Act 2006 (SA) was proclaimed on 18 October
2007. Under Section 65 of the Act, it is an offence for ‘registerable offenders’ to work
with, or apply to work with, children. The Maximum penalty is imprisonment for 5
years.
In addition, under Section 66:
•
A person who is engaged in child-related work must disclose a charge for a Class
1 or 2 Offence to their employer within seven days after becoming aware of the
filing of the charge or, if it is a charge pending immediately before 18 October
2007, within 7 days after that date.
•
A person who applies to work in a position that is child-related, must disclose a
charge for a Class 1 or 2 Offence to their prospective employer at either the time
of application or, if they are charged while the application remains current, within
seven days.
This section does not apply if the alleged offence occurred while the person was a
child. In all cases, the person faces a fine of up to $5,000 if they do not inform
their (prospective) employer.
Section 6 and Schedule 1 of the Child Sex Offender Registration Act 2006:
‘Registerable Offender’ and Class 1 and 2 Offences
A registrable offender is a person:
•
who has been sentenced for a class 1 or class 2 offence or
•
who is, or has been, subject to a child sex offender registration order.
Class 1 and class 2 offences are outlined in Schedule 1 of the Child Sex Offender
Registration Act 2006 and include sexual (or sexually-motivated) offences where the
victim was a child.
Section 64(1) of the Child Sex Offender Registration Act 2006: ‘Child-related
work’
Child-related work means work involving contact with a child in connection with any
of the following:
•
pre-schools or kindergartens;
•
child care centres;
•
educational institutions for children;
•
child protection services;
•
juvenile detention centres;
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•
refuges or other residential facilities used by children;
•
foster care for children;
•
hospital wards or out-patient services (whether public or private) in which children
are ordinarily patients;
•
overnight camps regardless of the type of accommodation or of how many
children are involved;
•
clubs, associations or movements (including of a cultural, recreational or sporting
nature) with significant child membership or involvement;
•
programs or events for children provided by any institution, agency or
organisation;
•
religious or spiritual organisations;
•
counselling or other support services for children;
•
commercial baby sitting or child minding services;
•
commercial tuition services for children;
•
services for the transport of children.
Section 64(1) of the Child Sex Offender Registration Act 2006: ‘Work’
Work means:
•
performance of work
o under a contract of employment or a contract for services (whether written
or unwritten); or
o as a self-employed person or as a sub-contractor; or
o as a minister of religion or as part of the duties of a religious or spiritual
vocation; or
•
undertaking practical training as part of an educational or vocational course; or
•
performance of work as a volunteer including the performance of unpaid
community work in accordance with an order of a court.
Section 64(2) of the Child Sex Offender Registration Act 2006: ‘Engaged in
child-related work’
A person is engaged in child-related work if he or she is:
•
an officer of a body corporate that is engaged in child-related work, or
•
a member of the committee of management of an unincorporated body or
association that is engaged in child-related work, or
•
a member of a partnership that is engaged in child-related work.
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Obtaining and assessing criminal history reports 13
Advise employees and applicants of application and screening process (including but
not limited to obtaining criminal history reports) [Refer S2, S3]
Seek informed written consent to access criminal history information [Refer S2, S7]
Applicants
who do
not
consent
will not be
screened
Government
employees/
volunteers who
do not consent
may need to be
relocated or
redeployed
A criminal history
record under
Section 8B(5) may
be obtained for
employees
/volunteers of
NGOs
Informed
consent
given
[Refer
S2]
Other
evidence
accepted
[Refer S4]
Obtain criminal history report via South Australia Police or CrimTrac
Check successfully
completed [Refer S7]
No criminal
history
Recorded criminal
history
Undertake assessment of criminal history report (where applicable) via qualified
assessors/screening unit [Refer S5, S6]
Relevant criminal history
indicating a risk of harm
No relevant
criminal history
Check successfully
completed [Refer S7]
Advise the employee/volunteer/applicant of the matter of concern and provide an
opportunity to respond or provide further information [Refer S5, S6, S7]
Further independent assessment of the criminal history record, including the additional
information provided by the incumbent/applicant [Refer S7]
Criminal history indicates a risk of harm,
employee/volunteer/applicant not successful
Criminal history
considered acceptable,
check completed [Refer
S7]
Other grievance procedures may apply [Refer S7]
13
Refer to the Public Sector Management Act 1995 for information about grievance procedures within
State Government organisations.
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Standard 1: Identifying prescribed functions and prescribed
positions
The organisation requires a criminal history report for persons who are
engaged in or apply for prescribed positions in the organisation.
The organisation ensures that it accurately identifies all individuals in the
organisation who undertake prescribed functions and require a criminal history
report.
A criminal history report is only required to be obtained for individuals who are:
•
at least 18 years of age
•
are employed, contracted, subcontracted, act as agents of, or volunteer for, a
government organisation or non-government organisation specified in the
Children’s Protection Regulations 2006 (as at 1 July 2007, this only included
non-government schools)
•
currently occupy or act in a prescribed position or who have applied to occupy
or act in a prescribed position.
Prescribed functions
A prescribed position is a position in an organisation that requires or involves
prescribed functions. Prescribed functions are those involving any of the following:
•
regular contact with children or working in close proximity to children on a
regular basis
•
supervision or management of persons in positions requiring or involving
regular contact with children or working in close proximity to children on a
regular basis
•
access to records relating to children
•
functions of a type prescribed by regulation. 14
The Children’s Protection Act 1993 does not include definitions of regular contact,
regular basis or close proximity. As a result, the terms must be given their ordinary
everyday common sense meanings. Ultimately will be up to the courts to decide what
the terms mean in the context of the Act. Generally speaking, the term regular
contact implies contact that has a constant or definite pattern, or which recurs at
short
14
As at 1 July 2007, the Children’s Protection Act 1993 did not specify any further functions in the
regulations.
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uniform intervals or on several occasions during short periods of time such as a
week.
The organisation will need to decide whether the contact that an individual will have
with children will be ‘regular contact’ or be undertaken in ‘close proximity on a regular
basis’. This will be a question of fact, and organisations should consider this
carefully, having regard to this guidance and, if necessary, their own legal advice.
It should also be noted that the key to deciding whether a person qualifies as
undertaking prescribed duties is the amount of contact they have with children (or
their records) in performing their duties (whatever they might be) rather than their job
title or their job description.
Identifying individuals in the organisation who require a criminal history report.
Once the prescribed functions have been identified, to determine when the
organisation must obtain a criminal history report for a specific individual, the test
over the page may be applied.
Standard 1: Indicators of Compliance
1.1. The organisation identifies the paid and unpaid positions that are prescribed
positions.
1.1.1. The organisation considers:
1.1.1.1. The nature of the duties and responsibilities attached to the
position/undertaken by the individual
1.1.1.2. How the definitions of regular contact and close proximity on a
regular basis applies to the organisation’s roles, functions and
responsibilities
1.1.1.3. The likelihood of the position requiring the incumbent to work
regularly in close proximity to children, particularly without other
adults present.
1.1.2. The organisation can show its practices reflect the requirements within
the test provided overleaf.
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Test to identify which prescribed positions require a criminal
history report to be obtained 15
NO
1. Is the person an employee?
YES
2. Is the person a contractor, subcontractor, agent or
volunteer?
NO
YES
3. Are their activities part of
the ordinary activities of the
organisation?
4. Are their activities
physically on/in the
organisation’s premises
for significant periods of
time?
NO
YES
YES
NO
5. Are they an indirect service
provider for the organisation?
NO
NO
LEGISLATIVE
REQUIREMENT
to obtain a
criminal history
report
YES
MAY
obtain a criminal
history report
MUST
obtain a criminal
history report
15
Note this test is only to be applied to people occupying or acting in a prescribed position. Based on
information provided by Crown, July 2007.
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Standard 2: Developing understandable and accessible procedures
to obtain criminal history reports
The organisation ensures that its policy and procedures regarding obtaining
and assessing criminal history reports are readily available to applicants,
employees and volunteers.
In most circumstances, informed consent is required before obtaining a
criminal history report of an employee or volunteer. Informed consent means
that the individual understands the purpose of the request and the likely
outcomes of giving consent.
Employees and volunteers of the organisation and applicants need to be aware
and understand the purpose of obtaining criminal history reports and how
criminal history information will be dealt with by the organisation.
The organisation clearly indicates that a criminal history report will be obtained:
•
for each person occupying or acting in a prescribed position (whether as an
employee, volunteer, agent, contractor or subcontractor)
•
before a person is appointed to, or engaged to act in, a prescribed position
(whether as an employee, volunteer, agent, contractor or subcontractor).
The organisation’s procedures must clearly articulate who is responsible for meeting
the cost of obtaining a criminal history report. Arrangements for obtaining the report
are a matter for negotiation between the organisation and the individual, as part of
the employment arrangements.
Informed consent should be required before obtaining a criminal history report.
Informed consent means that the individual understands the purpose of the request
and the likely outcomes of giving consent. Typically the applicant will be provided
with information that explains: 16
16
•
what a criminal history report is and how it will be obtained
•
the purposes for which the criminal history information is being collected
•
any person to whom, or agency to which, the criminal history information will
be disclosed
•
any law which requires that their personal information be collected and the
consequences of not complying.
Some or all of this information may be included in a consent form.
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•
the basis of decision-making (both in general terms and specifically as it may
apply to the individual, refer Standard 6).
Legislated exceptions to this exist under section 8B of the Children’s Protection Act
1993, which allows the responsible authority to obtain a criminal history report
without consent in some circumstances.
The organisation should ensure that the following practices are followed when
obtaining criminal history reports:
•
The organisation advises existing and prospective persons seeking
employment or retention in prescribed positions, of the requirements under the
Act for a criminal history report to be obtained for prescribed positions.
•
The organisation informs relevant persons that they will request the criminal
history report on the person’s behalf and with their written consent as a
condition of consideration for engagement or continuing
employment/volunteering.
•
The organisation will preclude from employment any person who is not willing
to consent to, or does not have a valid check of their criminal history report
[refer to Standard 3 for information about validity and Standard 4 for conditions
of acceptance of alternative information].
•
The organisation will inform relevant persons that an assessment of the
criminal history information will be undertaken to assess suitability to work in
prescribed positions.
•
Information is provided by the organisation to relevant persons on the
offences/convictions that would be considered relevant or present a potential
risk of harm to children.
•
Applicants, employees and volunteers are informed by the organisation that
evidence of a criminal history, that may be unrelated to any risk of harm to
children, will not automatically preclude a person from being or remaining
employed.
•
The organisation informs relevant persons on what will happen to any criminal
history information and who will have access to the information.
•
The organisation will allow relevant persons a chance to provide further
information about their criminal history if they choose and before determining
the appropriate outcome.
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Standard 2: Indicators of Compliance
2.1 The application process has been published (and is available both
electronically and in hard copy).
2.2 Organisations provide applicants and volunteers with a clear and accurate
description of how criminal history reports will be obtained and assessed at
the time of first contact.
2.2.1 Advertisements, job and person specifications and selection criteria
(where applicable) clearly state that the appointment of a candidate will
be subject to their criminal history report being obtained. The material
should also state that people with a criminal history report will not be
automatically barred from applying (unless a particular legal
requirement applies). 17
2.3 Using a 100-point check, the organisation establishes the true identity of
applicants prior to checks being conducted.
2.3.1 This should include one primary document such as a Birth Certificate or
International Travel Document (e.g. Current Passport) or Citizenship
Certificate and must include one secondary document such as a
Driver’s Licence, employee identification card, Centrelink card or
student identification card.
2.3.2 In some cases, when confirming the identity of a person who is
Aboriginal or from a culturally and linguistically diverse background,
alternative processes for establishing the identity of the individual may
be required. 18
2.4 Informed, written consent of the applicant, employee or volunteer is obtained
and the screening service maintains records of all applications.
2.4.1 Consent forms and guidance notes on the screening process are
readily accessible to potential applicants and current employees and
volunteers.
2.5 Mechanisms exist to respond to any queries from applicants, employees and
volunteers.
2.5.1 Organisations deal confidentially and sympathetically with the concerns
of applicants, employees and volunteers.
17
Human Rights and Equal Opportunity Commission, On the Record: Guidelines for the prevention of
discrimination in employment on the basis of criminal record. HREOC, Commonwealth of Australia:
Sydney, 2005, p. 8. Note that it will be an offence for registerable offenders to apply to work with
children under s.65(1) of the Child Sex Offenders Registration Act 2006.
18
If primary documentation is not available, please refer to the 100 Point Check website for guidance
(available in the Useful References section).
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Standard 3: Obtaining criminal history reports in a timely and
regular manner
The organisation obtains a criminal history report prior to the appointment of
new employees or volunteers or as soon as possible for existing employees,
contractors, subcontractors, agents and volunteers in prescribed positions.
The organisation obtains criminal history reports on all persons undertaking
prescribed functions at agency-defined intervals up to a maximum validity
period of three years.
The Children’s Protection Act 1993 specifies that before a person is appointed to, or
engaged to work with children and/or their records (i.e. in a prescribed position), a
criminal history report must be obtained and assessed.
In cases where it is urgent for an individual to be engaged to act in a position, they
may complete a statutory declaration in addition to their consent form and be
employed to undertake certain duties, but cannot undertake prescribed functions until
their criminal history report has been received, assessed and they have been cleared
to work in a prescribed position.
In order to prevent unnecessary intrusion, criminal history reports should only be
obtained on new applicants who have been short-listed for a prescribed position.
In urgent cases this respect for privacy will need to be balanced with administrative
practicality. To expedite clearances, it may be necessary to request a criminal history
report early in the recruitment and screening process to ensure that the successful
applicant(s) can be engaged as soon as practicable.
Regularly obtaining criminal history reports of people who work in prescribed
positions is one step in screening and monitoring employees and volunteers to
promote child safe environments. Obtaining criminal history reports on people who
work with children or their records helps to protect children from harm by:
•
deterring people from applying to work with children where they have criminal
history reports that indicate they may harm children
•
preventing people with relevant criminal history from gaining positions of trust
in certain paid and voluntary work with children.
Because a criminal history report summarises an individual’s formal criminal history
at a point in time, obtaining regular reports of criminal history is required. In South
Australia, a criminal history report must be obtained at least every three years. This is
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in line with existing requirements to obtain criminal history reports under other
legislative authorities and conventions within Australia.
The organisation may, at any time as it thinks necessary or desirable for the purpose
of establishing or maintaining child safe environments, obtain a criminal history report
of any person who either:
•
occupies or acts in a prescribed position (whether as an employee, volunteer,
agent, contractor or subcontractor)
•
carries out, or is to carry out, as an indirect service provider, prescribed
functions for the organisation.
Standard 3: Indicators of compliance
3.1 A Criminal history report is obtained for all prescribed positions in a timely
manner.
3.1.1 New employees/volunteers
3.1.1.1
The organisation’s recruitment processes requires successful
assessment of a criminal history report prior to appointment.
3.1.1.2
A criminal history report is requested of the short-listed
applicant(s) for a position (where practicable). In some cases,
e.g. group recruitment processes, consent to obtain a criminal
history report may be required to be processed earlier to
expedite clearance.
3.1.1.2.1 Each job applicant should be assessed first on their ability to
do the job and then on the relevance of their criminal history
to the job applied for (i.e. the decision should be based on
merit). 19
3.1.1.3
Applicants are advised on the conditions where previous criminal
history reports will be accepted as transferable (refer Standard
4).
3.1.2 Current employees/volunteers
19
3.1.1.1
The organisation develops a schedule to obtain criminal history
reports for current employees and volunteers in prescribed
positions.
3.1.1.2
The program/schedule has been communicated to managers.
3.1.1.3
The organisation’s records indicate when criminal history reports
have been obtained and assessed for current
employees/volunteers.
Human Rights and Equal Opportunity Commission, 2005, above n.19, p.22.
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3.1.2 Contractors, subcontractors and agents
3.1.2.1
The organisation must ensure that all individuals in an
organisation for which the authority is responsible have had a
criminal history report obtained and assessed in line with these
standards.
3.1.2.1.1 The organisation includes clauses in any contracts with
external organisations, specifying the requirement to obtain
criminal history reports in line with these standards.
3.2 The frequency in obtaining criminal history reports (‘validity period’) has been
specified and published and is no longer that three years.
3.2.1 Organisational records indicate that criminal history reports have been
obtained in accordance with the validity period.
3.2.1.1
Organisations ensure that records relating to agents, contractors
and subcontractors undertaking prescribed functions clearly
indicate that a criminal history report has been obtained and
assessed in accordance with these standards. Contracts include
the right to seek written evidence that criminal history reports
have been obtained on a timely and regular basis.
3.3 The organisation regularly reviews internal policies and procedures to ensure
that the maximum three year requirement is met, including:
3.3.1 timely re-application for criminal history reports
3.3.2 ensuring that relevant employees and volunteers turning 18 apply for a
criminal history report to be obtained.
3.4 The organisation develops procedures that encourage employees and
volunteers to notify the organisation if they have had a change in their criminal
history at any time before the renewal date for their next criminal history
report, particularly if they have a conviction recorded that would preclude them
from undertaking prescribed functions [refer Standard 5].
3.4.1 Under section 59(2) of the Public Sector Management Act 1995, State
Government public sector employees:
charged with an offence punishable by imprisonment must, as soon as
practicable, notify the Chief Executive of the administrative unit in which
he or she is employed of that fact.
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Standard 4: Accepting other evidence
In some situations, the organisation may accept the following types of
evidence, obtained within the last three years, when assessing criminal history
information:
•
letters of clearance (or other written evidence) from South Australian
CrimTrac-accredited agencies
•
National Police Certificates (under certain circumstances)
•
criminal history record checks undertaken and clearances provided in
other Australian jurisdictions i.e. the Blue Card (Qld), Working with
Children Check (Vic, WA)
•
statutory declarations from individuals who have lived in countries other
than Australia. 20
In accepting other evidence, there must be compatibility between the roles of
the organisation (based on a risk assessment) and the criminal history reports
obtained (i.e. a check to work with children).
In some cases people may work or volunteer in prescribed positions across a
number of different organisations. In order to minimise duplication, organisations may
decide to accept previously obtained criminal history reports that have been
assessed and are valid (i.e. have been undertaken within three years of the
application date).
Factors such as spent convictions schemes and the purpose for which the criminal
history report has been sought will influence the criminal history information that is
included in either report.
National Police Certificates and letters of clearance
Most people do not have a criminal history. For these individuals, it may be
appropriate and sufficient to accept previous reports indicating no recorded criminal
history, especially if these criminal history reports have been obtained in the context
of working with children.
20
Statutory declarations are in addition to, and not instead of, a criminal history record check.
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Statutory Declarations
The organisation may seek a statutory declaration for employees or volunteers who
have been citizens or permanent residents of another country other than Australia
since turning 18 years of age. The declaration may include statements indicating they
have never been convicted:
•
of murder or sexual assault
•
of possessing child pornography
•
and sentenced to imprisonment for, any other form of assault in a country
other than Australia.
Standard 4: Indicators of compliance
4.1 The organisation confirms that the report obtained about the criminal history of
the applicant and the assessment and clearance relates to working in
prescribed positions (i.e. working with children).
4.1.1 This may be achieved by:
4.1.1.1
Using checks of criminal history reports specifically undertaken
to work with children such as the Blue Card (Qld) or Working
with Children Check (Vic, WA)
4.1.1.2
Ensuring that a National Police Certificate does not have a
caveat stating that it cannot be used as clearance to work with
children.
4.1.1.3
Contacting a CrimTrac accredited agency for confirmation.
4.2 The organisation confirms the compatibility between the position for which the
individual’s criminal history has previously been assessed and the current
position (e.g. level of risk).
4.3 The organisation has specified and published the conditions of acceptance of
criminal history reports previously obtained (e.g. period of validity, type of
criminal history check undertaken).
4.4 The identity of the applicant is confirmed using the standard identification
process (refer Standard 2).
4.5 In cases where a letter of clearance is provided from a CrimTrac accredited
agency, it is recommended that the organisation seeks written confirmation by
contacting the CrimTrac accredited agency directly. 21
21
A letter of clearance provided by a CrimTrac accredited agency is potentially an easily forged
document. Direct confirmation should be sought by the organisation from the CrimTrac accredited
agency.
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4.5.1 For a report to be transferable, it must have been obtained and the
assessment completed within the validity period (no more that three
years previously).
4.6 Proof of clearance is retained by the organisation.
4.7 The previous clearance is only used as evidence that a criminal history report
has been obtained and assessed. Other screening methods are also used to
determine the risk and suitability of the individual to work with children.
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Standard 5: Assessing criminal history reports
The organisation considers and assesses an individual’s criminal history
report on a case-by-case basis. Criminal history is considered in context,
based on relevance and the potential risk of harm to children.
The onus of proof rests with either the individual or the organisation
depending on whether the criminal history information suggests a prima facie
risk or a possible risk of harm to children.
The aim of this standard is to provide guidance to organisations when assessing
criminal history information. Such guidance helps to prevent confusion or
misapplication of criminal history information. 22
It is important to note that the only people in South Australia who are automatically
precluded from working with children are those who are ‘registerable offenders’. It will
be an offence for ‘registerable offenders’ to work with, or apply to work with, children
under the Child Sex Offenders Registration Act 2006 once the Act has been
proclaimed [refer to Appendix IV for more information].
Offences that indicate a prima-facie risk of harm
In South Australia, ‘relevant criminal history’ is not defined in law. There are specific
categories of criminal convictions that present a prima-facie risk of harm to children. 23
It is unlikely that a person will be considered suitable to be employed, contracted,
hired, retained, accepted as a volunteer, or allowed to undertake prescribed functions
if he or she has been convicted of:
•
murder or sexual assault
•
violence in relation to a child
•
an offence relating to child pornography 24
•
an offence involving child prostitution
•
a child abuse offence, for example criminal neglect. 25
22
Community and Disability Services Ministers Conference, Creating Safe Environments for Children
– Organisations, Employees and Volunteers National Framework Schedule: Guidelines for Exclusion
of Persons from Employment/Volunteering in Child-Related Areas, 2007b, p. 1.
23
Ibid.
24
e.g. under Division 11A Criminal Law Consolidation Act 1935 or similar legislative provisions in
another State or Territory
25
e.g. under Division 1A Criminal Law Consolidation Act 1935 or similar legislative provisions in
another State or Territory
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Relevant offences that potentially indicate unsuitability to undertake
prescribed functions
There are other relevant offences where ‘there can be a presumption that there is a
presenting risk of harm to children but further assessment is necessary before a
decision to exclude a person can be made’. 26 In general, these types of criminal
offences include:
•
sexually-motivated offences
•
violence offences/assault including
o any form of assault which has resulted in a sentence of imprisonment
o offences relating to cruelty to animals 27
•
any other offences against a child (including drug offences). 28
In addition, other criminal offences may be relevant to specific, prescribed functions,
including: dishonesty offences, serious drug-related matters or serious traffic
offences. None of these offences will automatically preclude an individual from being
engaged to undertake prescribed functions. Further assessment of risk and suitability
is required to be undertaken, with consideration given to emerging research and
professional knowledge when assessing risk of harm to children in organisational
settings. 29
Assessment of risk of harm to children
In assessing an individual’s suitability to work with children, organisations should
consider whether the individual presents an unacceptable risk of harm to children.
The criminal history information is assessed based on the level of potential risk
posed by the criminal history with regard to the individual undertaking prescribed
functions.
Harm in the child protection context is defined as the detrimental impact on the
physical, psychological, emotional or social safety, wellbeing and development of a
child as a result of the actions or inactions of another person.
26
Ibid.
e.g. under the Prevention of Cruelty to Animals Act 1985 or other relevant legislative provisions in
South Australia or another State or Territory.
28
Community and Disability Services Ministers Conference, 2007a, above n.2, 2007b above n.24;
Department of Health and Aging Police Certificate Guidelines for Aged Care Providers. Government of
Australia: Canberra, 2006.
29
E.g. under section 32 of the Controlled Substances Act 1984 or other relevant legislative provisions
in South Australia or another State or Territory; Community and Disability Services Ministers
Conference, Creating Safe Environments for Children – Organisations, Employees and Volunteers
National Framework Schedule: Guidelines for Information Sharing Across Jurisdictions, 2007a.
27
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Risk of harm is the likelihood of inflicting harm (either directly or as a consequence of
other actions) and the severity of that harm. Risk may be the result of situational or
personal factors. For example:
•
Situational
o The circumstances in which a prescribed function is carried out, for
example the likelihood of unsupervised access to children or
transportation of children may require that close attention is paid to
specific offence types (e.g. vehicle offences) when considering the
potential risk of harm to children.
•
Personal
o An individual’s criminal history (e.g. possessing child pornography) may
be an indicator of the level of potential risk they may pose to children.
Risk assessment, in a general sense, involves making a statement of probability
regarding a future event. In the area of child protection, risk assessment ‘refers to a
process of evaluating the information received to reach a decision about the risk of
harm a person may pose to children‘. 30
A risk assessment may lead to other strategies, in addition to obtaining criminal
history reports, being implemented by the organisation in order to mitigate the risks of
harm to children. 31 For example, the inherent requirements of some prescribed
positions may involve unfettered access to children. These roles may present a
higher that usual duty of care of the organisation. Such positions may require the
organisation to take additional steps to mitigate the risk of harm to children, such as
supervised contact or random drug testing of staff depending on the specific risk
identified.
In assessing an individual’s criminal history information to determine the likely risk of
harm to children, the context within which offences have been committed must also
be considered. Additional information may be sought from the individual, the
organisation or through South Australia Police or CrimTrac relating to any or all of the
following factors:
•
Access: the degree of direct and unsupervised access to children or their
records.
o Considerations include whether the individual will work alone or as part
of a team, the level and quality of direct supervision, the location of the
work i.e. residential, community or home based settings.
•
30
31
Relevance: an organisation should only have regard to criminal history
information indicating that the person presents an unacceptable risk of harm to
children. Relevance of itself cannot be the basis of an assessment that an
Community and Disability Services Ministers Conference, 2007a, above, n.2, p.2.
Refer to Department for Families and Communities, 2007, above n.9, for more information.
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individual presents an unacceptable risk of harm to children. The type of
criminal history information must be assessed against the prescribed functions
that individual is likely to undertake.
•
Significance: of the type of conviction in relation to the duties a person is, or
may be, undertaking.
•
Proportionality: whether excluding a person from employment is an outcome
proportional to the type of conviction.
•
Timing: how long ago the conviction occurred and whether the offence was
committed as an adult or a juvenile.
•
Penalty: the severity of any penalty imposed by the court, such as whether the
court elected not to record a conviction where the person entered into and
successfully completed a conditional order such as bond or probation, and
whether the individual successfully completed the order.
•
Employment history: whether an individual has been satisfactorily employed
since the conviction.
•
Individual’s Information: the findings of any assessment reports following
attendance at treatment or intervention programs, evidence of rehabilitation,
other references, the individual’s attitude to the offending behaviour, cultural
factors that may be relevant to the offending.
•
Pattern: whether the conviction represents an isolated incident or a pattern of
criminality.
•
Likelihood: what is the possibility of an incident occurring if the person
continues with, or is employed for, particular duties?
•
What were the individual’s circumstances at the time of the offences
compared to the current circumstances?
•
Consequences: what would be the impact of a prospective incident if the
person continues, or commences, particular duties?
•
Treatment Strategies: what procedures will assist in reducing the likelihood of
an incident occurring, including, for example modification of duties or work
environment?
Burden of Proof
Nationally it has been agreed that:
In cases where the criminal history information relevant to the individual
suggests a prima facie risk of harm to children it may be appropriate that
the individual bears the onus of proving they do not pose such a risk.
Conversely, where the criminal history of an individual does not indicate a
prima facie risk but where there are other strong indicators of risk that
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cause concern, it may be appropriate for the decision‑maker to bear the
onus of proving that the individual poses a risk of harm to children. 32
This agreement is reflected in the following indicators of compliance.
Standard 5: Indicators of compliance
5.1 The organisation ensures that the process of assessment is transparent.
5.1.1 The organisation provides information and opportunities for individuals
to understand the basis upon which criminal history information is
assessed.
5.2 In assessing the risk an individual may pose to children, the organisation
assesses other information including (but not limited to):
5.2.1 Situational factors, including:
5.2.1.1
The nature of the prescribed functions
5.2.1.1.1 Sustained or short term
5.2.1.1.2 Level of supervision
5.2.1.1.3 On or off the site
5.2.1.1.4 Physical or non-physical
5.2.1.1.5 Day or overnight
5.2.1.2
The nature and vulnerability of the children who are receiving the
services of the individual/organisation
5.2.1.2.1 Age/maturity
5.2.1.2.2 Social awareness and competence
5.2.1.2.3 Physical or intellectual disability
5.2.1.2.4 Language or cultural based vulnerability
5.2.1.2.5 Social/emotional based vulnerability (such as children under
the Guardianship of the Minister)
5.2.2 Personal factors, including any criminal history information (where
applicable).
5.2.3 The organisation has transparent assessment policies and procedures
that include consideration of situational factors, the nature of
vulnerability of the children receiving the services, and personal factors
related to the applicant.
32
Community and Disability Services Ministers Conference, 2007b, above n. 24, p. 5.
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5.3 In interpreting and assessing a person’s criminal history for suitability to
undertake prescribed functions, issues relating to the context of offending (as
listed above) must be considered by decision-makers.
5.4 Before making a risk assessment of an individual (with a criminal history), the
organisation must allow the applicant/employee/volunteer the opportunity to
provide further information on criminal history information and contextual
factors.
5.4.1 Where the relevant criminal history suggests a prima facie risk of harm
to children the individual bears the onus of proving they do not pose
such a risk.
5.4.2 Where the relevant criminal history of an individual does not indicate a
prima facie risk but where there are other strong indicators of risk that
cause concern, the decision‑maker is required to prove that the
individual poses a risk of harm to children. 33
5.5 The organisation is able to provide written evidence (e.g. minutes of
assessment meetings; risk assessment procedures) that indicates
consideration of individual cases rather than automated clearances or
preclusions.
33
Ibid.
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Standard 6: Ensuring procedural fairness throughout the
assessment and decision-making processes
The organisation’s decision to employ or retain the services of a person with
any recorded convictions is rigorous, defensible and transparent. The
overriding purpose in screening employees, volunteers and applicants is to
minimise the risk of harm to children.
The organisation ensures that employees, volunteers and applicants have an
opportunity to have input into the decision-making process. In some
circumstances, an opportunity to have the decision independently reviewed is
provided.
Evidence based risk and suitability assessment and an informed process of appeal
are essential in ensuring that people are not unfairly excluded from working with
children.
While procedural fairness does not have a single recognised definition, at its core, it
requires fair, accessible, transparent and equitable decision-making processes. 34
Procedural fairness arises out of a fundamental sense of justice and good
administration, requiring the proper process to be followed rather than being a
substantive right. Good governance requires that organisations are clear about the
foundations for decision-making. Procedural fairness demands that there is a
rationale for excluding persons from child-related employment. This rationale must be
transparent, relevant, evident and objective. It cannot be harsh or a disproportionate
response to the offence or conviction.
Decisions to not employ an individual due to their criminal history must be fair and
equitable, based on the principles of natural justice. Natural justice requires that:
•
people are entitled to be informed of allegations made against them
•
all persons affected by a decision should be given the relevant information to
enable an informed submission to be made to the decision-maker or person
subsequently reviewing a decision
•
during the review of a decision, all persons affected by a decision should have
an opportunity to put their case, relevant arguments should be heard, and
relevant information should be accessible to all parties
•
decision-makers must act fairly and impartially. 35
34
Australian Law Reform Commission, ALRC 95 Principled Regulation: Federal Civil and
Administrative Penalties in Australia. ALRC, Canberra, 2002. At:
http://www.austlii.edu.au/au/other/alrc/publications/reports/95/
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The individual must be given the opportunity to confirm their identity and the
accuracy of any associated criminal history report (or alternatively the right to dispute
the contents of a criminal history report). If the criminal history report indicates
relevant criminal history, the organisation should give the job applicant, volunteer or
employee an opportunity to provide further information such as the details of the
conviction or offence and the circumstances surrounding the offence before
assessing the criminal history information. 36
The rights of Individuals both to respond and to access fair grievance processes
must be proportionate to:
•
the size, nature and resources of the organisation
•
the potential impact on the person, if their criminal history will potentially
preclude them from working in prescribed positions.
Any decisions that a South Australian organisation makes may be reviewable by the
Human Rights and Equal Opportunity Commission. 37
Standard 6: Indicators of Compliance
6.1 The organisation’s documented assessment procedures meet legislative and
contractual requirements.
6.1.1 The procedures outline how to respond to applications from
registerable offenders. 38
6.2 The rationale for excluding people has been documented and decision-making
is evidence-based (where evidence exists).
6.3 Criminal history reports that contain offences that indicate a prima-facie risk of
harm and/or relevant offences that potentially indicate unsuitability to
undertake prescribed functions are considered and assessed by a panel of
qualified assessors (i.e. two or more people).
6.3.1 Any decisions made are recorded.
6.3.2 In such cases, when assessing the criminal history of an Aboriginal
person, the panel includes an appropriate Aboriginal person (wherever
possible).
35
The Commissioner for Public Employment, Guideline for the South Australian Public Service for the
Protection of Merit and Equity, Adelaide, 2001, p. 3.
36
Human Rights and Equal Opportunity Commission, 2005, above n.19, p.8.
37
The Commission may make findings and recommendations only. Its decision is not binding.
38
It will be an offence for registerable offenders to apply to work with children under s.65(1) of the
Child Sex Offenders Registration Act 2006.
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6.4 Internal grievance processes are established and made known to and fully
understood by employees, volunteers and applicants (including information on
the rights and responsibilities of individual employees).
6.5 Written policy and procedures include statements that ensure that applicants,
employees and volunteers have a right of response.
6.6 If a criminal history report indicates potentially relevant criminal history
information, prior to assessing the criminal history information, the
organisation must provide applicants with an opportunity to:
6.6.1 verify whether they are the person to whom the information received
relates. The individual is responsible for providing details which verifies
their identity.
6.6.1.1
the individual must be made aware of their right to apply to
South Australia Police through the Freedom of Information Act
1991 (SA) to correct their records if the information is inaccurate.
6.6.2 dispute the contents of a criminal history report before any decision is
made;
6.6.3 provide information regarding his or her criminal history or other
information and references, and for this information to be considered.
6.7 Prior to a decision being made, the organisation must communicate to the
applicant a pending decision not to employ or engage them because of their
criminal history and the reasons for this decision. Employees, volunteers and
applicants must then be:
6.7.1 given the right to have a final assessment decision reviewed by an
independent body.
6.7.2 advised of any other avenues of appeal (if applicable).
6.7.3 In addition, current employees who are deemed ineligible to work in a
prescribed position, based on their criminal history have a right of
reply 39 unless statutory exemptions specify otherwise.
6.8 The organisation audits, evaluates and reviews its processes regularly.
39
And may have right to appeal depending on different legislative requirements for different
employment sectors.
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Standard 7: Ensuring good practices when dealing with criminal
history information
The organisation establishes and maintains good practices for the
management of criminal history information.
The organisation protects the privacy (to the extent possible) and ensures the
confidentiality of both criminal history information and the assessment of a
criminal history report.
Criminal history information must be managed at all times to protect the privacy of
applicants/employees/volunteers and the confidentiality of the criminal history
information.
Confidentiality and management of information
The organisation will keep the criminal history information secure and protected by
implementing safeguards to prevent loss, unauthorised access, use, modification,
disclosure or other misuse, including unauthorised reproduction by any means within
their respective agencies. Safeguards are to include:
•
storage of criminal history information separate from other information about
the applicant/employee/volunteer
•
the use of secure storage and lockable filing systems
•
restricted access to criminal history reports and criminal history information. 40
It is a legislative requirement that everyone who deals with criminal history
information treats that information with utmost confidentiality. Section 8B(4) of the
Children’s Protection Act 1993 states that:
If a person comes into possession, in the course of relevant employment,
of information about the criminal history of another, the person must not
disclose the information except as may be required by or authorised under
law.
Maximum penalty: $10 000.
Protection from inappropriate disclosure and privacy considerations
Criminal history information ‘is sensitive and rightly subject to privacy considerations
and protections’. 41 Clarity concerning how information is dealt with by the
organisation ‘is an essential component of protecting privacy and civil rights’. 42
40
Refer to the CrimTrac website for more information.
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South Australia has no privacy legislation. Public sector employees of the South
Australian Government are governed and protected by the Department of the
Premier and Cabinet Circular: PC012 – Information Privacy Principles Instruction
(including Information Privacy Principles (IPP)). 43 The Circular requires that all South
Australian government organisations implement, maintain and observe the privacy
principles for and in respect of all personal information.
In addition, government organisations are guided by the Information Sharing
Guidelines for people who protect or promote the wellbeing of children, young people
and their families 44 and Working Together to Protect Children: South Australian
Interagency Child Protection Information Book Volume 1. 45
In South Australia, the Privacy Act 1988 (Cth) applies to and protects the privacy of
personal information of Commonwealth public sector employees and some private
sector employees. 46 The private sector provisions apply to organisations (including
not-for-profit organisations) with an annual turnover of more than $3 million. The
provisions also apply to all health service providers regardless of turnover.
Businesses with an annual turnover of $3 million or less are exempt from the new
laws unless one of the following statements is true for the business:
•
it is related to another business (for example it is a holding company or a
subsidiary) that has an annual turnover of more than $3 million
•
it provides a health service and holds health records other than employee
records
•
it discloses personal information for a benefit, service or advantage
•
it provides someone else with a benefit, service or advantage to collect
personal information
•
it is a contracted service provider for a Commonwealth contract.
41
Community and Disability Services Ministers Conference, 2007b, above n.24, p. 3
Ibid, p. 3
43
Refer to the Useful Resources section for more information.
44
Currently under development by the Department for Education and Children’s Services (DECS).
45
To be released by DFC.
46
See: http://www.privacy.gov.au/publications/IS12_01.html and
http://www.privacy.gov.au/publications/is1_01.html
42
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Standard 7: Indicators of compliance
7.1 Procedures include security and confidentiality statements relating to the
management of criminal history information and other personal information.
7.2 Criminal history information can only be accessed by people authorised to do
so. All people with access to criminal history information have been screened
and have signed deeds of confidentiality.
7.3 Applications and consent forms include provisions that specify how criminal
history information will be sought and used.
7.4 Audits of the organisation’s screening service indicate compliance with
storage and destruction of criminal history information according to legislative
and/or contractual requirements. 47
7.5 The criminal history information is protected, as required by the relevant
legislation, contractual obligations and or Government Instruction.
7.6 The organisation does not maintain any records, electronic or otherwise, of
criminal history information other than those authorised and specified by
legislative and/or contractual requirements.
47
Organisations must not make criminal history information or copies a permanent part of its records
and will retain such criminal history information or copies for a period not exceeding three months at
which time the information must be destroyed (unless specific legislative exemptions dictate
otherwise).
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Glossary of terms
Abuse or neglect, in relation to a child, means:
•
sexual abuse of the child or
•
physical or emotional abuse of the child, or neglect of the child, to the extent
that either:
o the child has suffered, or is likely to suffer, physical or psychological
injury detrimental to the child's wellbeing
o the child's physical or psychological development is in jeopardy.
Applicant means an individual who is applying to work or volunteer in a prescribed
position, and for whom a criminal history report must be obtained under the
Children’s Protection Act 1993.
Background Checking in the context of working with children, ‘involves obtaining
information about potential employees and volunteers, on the basis that the
information is deemed relevant to working in a child-related area. The information
gathered may include details concerning previous employment and relevant
experience; verification of qualifications and professional registration; criminal history
information; thorough reference checks; and work history reports’. 48 Background
checking includes, but is not limited to the assessment of a criminal history report.
Checks of criminal history reports (also known as a National Police Certificate or a
National Criminal History Record Check) are checks of the records of all police
services that discloses evidence of whether a person:
•
has any recorded convictions or
•
has been convicted of an offence or
•
has been charged with, and found guilty of, an offence but discharged without
conviction or
•
is the subject of any criminal charge still pending before a Court.
Individuals seeking to obtain a criminal history report through South Australia
Police are provided with a National Police Certificate (NPC). Checks
undertaken through a CrimTrac accredited agency are referred to as a
National Criminal History Record Check (NCHRC). Checks of criminal history
reveal and record convictions across all jurisdictions in Australia (subject to
each jurisdiction’s spent convictions scheme).
Child means a person under 18 years of age
48
Community and Disability Services Ministers Conference, 2007a, above n. 2, p. 2.
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contact under the Child Sex Offenders Registration Act 2006 (SA) means any form
of contact between a person and a child and includes—
(a) any form of physical contact; and
(b) any form of oral communication, whether face to face or by telephone; and
(c) any form of written communication, including electronic communication.
A contractor or indeed subcontractor is a party to a contract for services (as
opposed to an employee who is a party to a contract of services). 49
Conviction means either a summary or indictable conviction and includes a situation
where a person has been charged with an offence and found guilty, but discharged
without conviction, and where a person has not been found guilty of an offence but a
court has taken it into account in passing sentence on the person for another
offence. 50
Criminal History Information is defined by CrimTrac to mean information relating to
disclosable court outcomes, or other information regarding the name provided by the
applicant to a police service and included within a National Criminal History Record
Check. This information will only be released subject to relevant spent
convictions/non-disclosure legislation and/or information release policies.
Criminal History Report is a report from South Australia Police or CrimTrac
containing any criminal history information about an individual.
CrimTrac is a Commonwealth executive agency that provides police services and
accredited agencies with individuals’ national criminal history record information
subject to relevant Commonwealth, state and territory legislation.
Disclosable Court Outcomes mean the records of court convictions and findings of
guilt, which may include spent convictions and findings of guilt that have not been
recorded as convictions or deemed to be convictions by the court.
Duty of Care is a common law concept that refers to the responsibility of employees
and volunteers to provide children with an adequate level of protection against harm.
It is usually expressed as a duty to take reasonable care to protect children from all
reasonably foreseeable risk of harm. The question of what constitutes reasonable
care in any given case will be determined objectively by a court and will depend on
the individual circumstances of each case. In their relationships with children,
employees and volunteers are required to ensure that the physical and emotional
49
Based on advice provided by the Crown Solicitor’s Office, July 2007.
Crimes Act 1914 (Cth), section 85ZM. The South Australian Supreme Court case Vreeker v Police
[2004] SASC 90 discusses the meaning of the word ‘conviction’ and confirms that there is no uniform
definition of this term and that it depends on the context in which it is used. For the present purpose,
the relatively wide definition of conviction taken from the Crimes Act is appropriate.
50
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welfare of students is safeguarded, and that their own behaviour with children is
always regulated by this duty of care. 51
Emotional abuse is a chronic attitude or behaviour directed at a child whereby a
child’s self esteem and social competence is undermined or eroded over time or the
creation of an emotional environment which is detrimental to or impairs the child’s
psychological and/or physical development. Behaviours may include:
•
devaluing
•
ignoring
•
rejecting
•
corrupting
•
isolating
•
terrorising
•
chronic or extreme spousal abuse in the child’s presence.
Employee means a person employed for remuneration under a contract of
employment. 52
Government instrumentality is any body, whether incorporated or unincorporated,
which serves the purposes of government. 53
Government organisation means a government department, agency or
instrumentality.
Harm means physical, sexual, emotional or psychological abuse and neglect of
children. Harm is any detrimental effect of a significant nature on a child’s physical,
psychological or emotional wellbeing.
Indirect service provider is someone who carries out the prescribed functions for
another person or body which makes those services available to the organisation
bound by the provision.
Informed consent means that the individual understands the purpose of the request
and the likely outcomes of giving consent. Typically it will involve the applicant
signing a consent form that sets out:
•
what a criminal history report is and how it will be obtained
•
the purposes for which the criminal history information is being collected
51
Department of Education and Children’s Services, Association of Independent Schools of South
Australia & Catholic Education SA, 2005.
52
Fair Work Act 1994 (SA).
53
Based on advice received from Crown, July 2007.
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•
any person to whom, or agency to which, the criminal history information will
be disclosed
•
any law which requires that their personal information be collected and the
consequences of not complying.
Merit 54 in the context of selection processes as:
•
The extent to which each of the applicants has abilities, aptitude, skills,
qualifications, knowledge, experience (including community experience) and
personal qualities relevant to the carrying out of the duties in question.
•
If relevant:
o the manner in which each of the applicants carried out any previous
employment or occupational duties or functions
o the extent to which each of the applicants has potential for
development.
Natural justice 55 can be explained using two primary rules:
•
audi alteram partem - (‘hear the other side’)
•
nemo debet esse judex in propria sua causa - (‘no one shall be judged in his
own case’)
With regard to dealing with criminal history information, natural justice
requires that:
o people are entitled to be informed of allegations made against them
o all persons affected by a decision should be given the relevant
information to enable an informed submission to be made to the
decision-maker or person subsequently reviewing a decision
o during the review of a decision, all persons affected by a decision
should have an opportunity to put their case, relevant arguments should
be heard, and relevant information should be accessible to all parties
o decision-makers act fairly and impartially.
National Criminal History Record Check (NCHRC) is a check of the criminal
history of an individual carried out by South Australia Police or CrimTrac in
accordance with the appropriate standards.
Neglect is any serious omission or commission by a person which jeopardises or
impairs a child’s psychological, intellectual or physical development. Neglect is
54
55
As per the Public Sector Management Act 1995 (SA)
The Commissioner for Public Employment, 2001, above n.37, p. 3.
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characterised by the failure to provide for the child’s basic needs. Behaviours may
include:
•
inadequate supervision of young children for long periods of time
•
failure to provide adequate nutrition, clothing or personal hygiene
•
failure to provide needed or appropriate health care/medical treatment
•
disregard for potential hazards in the home
•
forcing the child to leave home early
•
allowing children to engage in chronic truancy.
Non-government organisation (NGO) means an organisation that is not a
government organisation and includes a local government organisation.
Organisation means all groups of persons organised for some end or work. This
includes: voluntary or otherwise; an association whether incorporated or not; a nonprofit organisation; a society, club, institution or body.
Currently under the Children’s Protection Act 1993 (SA) and the Children’s
Protection Regulations 2006, the only non-government organisations that are
mandated to obtain criminal history reports are non-government schools.
Employees and volunteers of non-government organisations that are agents,
contractors and subcontractors of government organisations may also be
directed by the responsible authority for the government organisation to
undertake a criminal history check.
Physical abuse is any non-accidental act inflicted upon a child which results in
physical injury to the child. Physical abuse results from practices such as:
•
hitting, punching, kicking (indicators: marks from belt buckles, irons, fingers,
cigarettes)
•
shaking (particularly young babies)
•
burning, biting, pulling out hair
•
alcohol or other drug administration.
A prescribed position is a position in an organisation that requires or involves
prescribed functions.
Prescribed functions mean:
•
regular contact with children or working in close proximity to children on a
regular basis or
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•
supervision or management of persons in positions requiring or involving
regular contact with children or working in close proximity to children on a
regular basis or
•
access to records relating to children or
•
functions of a type prescribed within the Children’s Protection Regulations
2006 (none currently prescribed).
Procedural fairness does not have a single recognised definition. However, at its
core, it requires fair, accessible, transparent and equitable decision-making
processes. 56
Regular contact implies contact that has a constant or definite pattern, or which
recurs at short uniform intervals or on several occasions during short periods of time
such as a week. Ultimately it will be up to the courts to decide what it means in the
context of the Act.
Responsible authority means:
•
the Chief Executive for a government organisation
•
for a non-government organisation to which section 8B of the Children’s
Protection Act 1993 applies:
o the managing authority of the organisation or
o the body approved in the Children’s Protection Regulations 2006 if the
managing authority has delegated its responsibility to that body.
Risk is the likelihood of anything occurring that can cause harm or loss to a child.
Risk assessment in the context of child protection ‘refers to a process of evaluating
the information received to reach a decision about the risk of harm a person may
pose to children‘. 57
Risk management is identifying and assessing all potential sources of harm, and
taking steps to decrease the likelihood that harm will occur. The aim is to prevent
things from going wrong, limit the amount of harm possible and reduce an
organisation’s liability if harm does eventuate. 58
Risk of harm is the likelihood of inflicting harm to children (either directly or as a
consequence of other actions) and the severity of that harm.
56
Australian Law Reform Commission, 2002., above n.36.
Community and Disability Services Ministers Conference, 2007a, above n.2, p. 2.
58
Graff, 2003
57
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Screening ‘in the context of minimising the risk of harm to children in their dealings
with organisations is generally understood to refer to the combined process of
background checking, risk assessment and decision-making concerning
acceptance/exclusion of persons in areas of child related employment/volunteering’. 59
Sexual abuse is any sexual behaviour imposed on a child. The child concerned is
considered to be unable to alter and/or understand the perpetrator’s behaviour due to
his or her early stage of development and/or powerlessness in the situation. Sexual
abuse occurs when someone in a position of power to the child uses her/his power to
involve the child in sexual activity. Behaviour can include:
•
sexual suggestion
•
exhibitionism, mutual masturbation, oral sex
•
showing pornographic material e.g. DVDs, internet
•
using children in the production of pornographic material
•
penile or other penetration of the genital or anal region
•
child prostitution.
Spent convictions are convictions or findings of guilt which are not required to be
disclosed by applicants or current employees/volunteers. Once a conviction has been
‘spent’ a person is not required to disclose the conviction.
South Australia does not have a Spent Convictions Scheme relating to crimes
under state legislation. The South Australia Police have developed and
implemented a policy (the 10 Year Rule) that follows the Commonwealth
Scheme with the exception that convictions or a finding of guilt for a major
indictable offence do not normally become spent and are released as part of a
criminal history report.
A person’s conviction of an offence is spent if:
o the person has been granted a pardon for reasons other than the
person was wrongly convicted of the offence or
o the person was not sentenced to imprisonment for the offence, or the
sentence imposed (not what was actually served) was a fine, bond,
community service order or imprisonment for a period of less than 30
months, and the waiting period for the offence has ended.
59
ƒ
Waiting period means either:
ƒ
five years from the day the person was convicted of the offence
if the person was a minor at the time of the offence
ƒ
ten years from the day the person was convicted of the offence
in any other case.
Community and Disability Services Ministers Conference, 2007b, above n.24, p. 6.
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Exclusions (non-spent convictions) are:
o convictions which are less than 10 years old
o juvenile convictions which are less than five years old
o convictions over 10 years old (or five years for juvenile convictions),
where the sentence imposed was greater than 30 months
o designated offences (i.e. sexual offences or any other offences against
the person if the victim of the offence was under 18 years of age at the
time the offence was committed) may be considered by ‘a person or
body who employs or otherwise engages other person in relation to the
care, instruction or supervision of minors’.
In addition, a conviction for a further offence committed during the waiting
period will in most cases result in the person automatically losing the right to
have the earlier conviction treated as spent until the waiting period for the later
conviction has ended.
A suitability assessment ‘may refer to a wide range of factors including attitude to
physical discipline and acknowledgement of children’s developmental status and
needs. A person may be deemed “not suitable” to work with children without
automatically implying that the person poses a risk of harm to children’. 60
Volunteer means a person who carries out community work on a voluntary basis of
their own free will. 61
A person works on a voluntary basis if the person:
o receives no remuneration for the work or
o is remunerated for the work but within limits fixed by regulation under
the Volunteers Protection Act 2001.
A person who carries out community work under the order of a court or a
condition of a bond is not to be regarded as working on a voluntary basis.
60
61
Community and Disability Services Ministers Conference, 2007a, above, n.2, p. 2.
Volunteers Protection Act 2001
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