This performance audit follows-up our 2014 audit Working with Children Checks. The objective of the audit was to assess whether the Department of Communities’ (Communities) management of the Working with Children (WWC) Check has improved and contributes to the safety of children. We reviewed the implementation of our 2014 audit recommendations and assessed the effectiveness and efficiency of the management of the WWC Check functions.
There are more than 370,000 WWC cardholders in Western Australia. People who engage in paid or unpaid work with children in Western Australia must apply for a WWC Check. This is required under the Working with Children (Criminal Record Checking) Act 2004 and the Working with Children (Criminal Record Checking) Regulations 2005 (collectively referred to in this report as the Act). However, the WWC Check does not apply to everyone who works with children. Children and students under 18, working on a voluntary or unpaid basis, or parents volunteering in certain activities do not require a WWC Check. This includes, for example, parents helping in schools and with sporting teams. Appendix 1 includes a full list of child-related work categories and exemptions under the WA WWC scheme.
Furthermore, in WA, unlike some other jurisdictions, the scheme does not extend to working with other types of vulnerable people including those who, due to illness, trauma, disability or other reasons are unable to take care of themselves.
The Act provides procedures for checking the criminal record of people who carry out, or propose to carry out, child-related work. It aims to prohibit people charged or convicted of certain offences from carrying out child-related work.
Under the Act it is an offence to engage in child-related work without applying for a WWC Check. It is also an offence to employ or procure employment in child-related work for someone without a WWC Check. Penalties can apply for these offences.
The Act gives Communities 2 key regulatory responsibilities, licensing and ensuring compliance (Figure 1). Both functions are important parts of creating a safe environment for children and making the Act effective. Communities’ WWC Screening Unit (Screening Unit) manages both the licensing and compliance functions. The Western Australia Police Force (WA Police Force) also plays an important role in providing information about relevant offending to the Screening Unit.
What we found and recommended in 2014
In 2014, we concluded that there was a clear framework for screening WWC Check applications. Applications from individuals with criminal records were well assessed and existing cardholders were regularly monitored. However, we found that in complex cases there were delays in processing applications leaving children potentially exposed to risk. We also found that the then Department for Child Protection and Family Support (DCPFS), now Communities, did little proactive work to check that employers and volunteer groups were ensuring their employees and members were subject to the application process. Finally, we found DCPFS did not meet its own obligations as an employer, as 115 of the 2,577 foster carers did not have a valid WWC Card or application in process.
In 2014, we made 8 recommendations. The full list of recommendations and their implementation status are detailed in Appendix 2. These were to:
- better prioritise and oversee applications
- allow better data matching with the WA Police Force
- improve decision-making guidelines
- allow better compliance monitoring
- target audits for high risk employer groups
- ensure the Department’s foster carers had valid WWC Cards.
A number of significant events have affected the management of the WWC Check since 2014 (Figure 2). These include the August 2015 Working With Children Checks Report by the Royal Commission into Institutional Responses to Child Sexual Abuse and the formation of the Department of Communities in 2017. The Royal Commission report included 36 recommendations aimed at improving the protection afforded to children. The Royal Commission report has also created an opportunity to strengthen the WWC regime in Australia and improve the protection afforded to children.
The core principle of the Act is that the best interests of children are the paramount consideration. The Act allows applicants to engage in child-related work whilst the Screening Unit assess their application. Working with children upon submission, rather than on approval of an application, presents a risk to children if the applicant is subsequently found to be unsuitable to work with children and refused a WWC Card. There are 2 options available to Communities to reduce this risk:
- reduce the time it takes to complete assessments
- issue interim negative notices, which prevent applicants working with children until their assessment is finalised.
The Screening Unit is able to issue an interim negative notice where there is any potential risk of harm to a child. An application may go through a number of steps to result in either the issue of a WWC Card or a negative notice depending on the screening process (Figure 3).
The WWC Check is one of a range of strategies to make organisations child-safe, and can reduce the risk to children. For this to happen, the application process must be timely, assessments must be reliable, and there needs to be ongoing monitoring of cardholders. The Act places responsibilities on employers as well as individuals, and there needs to be an effective risk-based education, compliance and enforcement regime to ensure employers of people in child-related work comply with the legislation.
Communities has made some progress in implementing our 2014 recommendations. The assessment of applications and the monitoring of cardholders is more efficient and effective than it was in 2014. The average days to approve an application without a criminal record has reduced from 20 days in 2013-14 to 4 days in 2018-19. The process whereby Communities is informed of new offences by cardholders is also more effective than it was in 2014.
However, Communities needs to more effectively mitigate the inherent risk of unsuitable people working with children while their application for a WWC Check is assessed. Although the average time taken to issue negative notices, prohibiting individuals from working with children, has come down since 2013-14, some applications can still take a long time to complete. In 2018-19, Communities took an average of 211 days to issue negative notices to 105 applicants to whom it had not previously issued an interim negative notice. Fifty-three of these took over 200 days. These 53 people, who were found to be unsuitable to work with children, were allowed to work with children for a cumulative total of 14,192 days while their applications were assessed.
The criteria set by Communities for when to issue an interim negative notice resulted in only 20% of people who received a negative notice in 2018-19 being previously issued an interim negative notice. This means 80% of people who ultimately received a negative notice were able to work with children while their application was assessed. An interim negative notice temporarily prohibits an individual from child-related work while their application is assessed. They are a key control in mitigating the risk to children.
Communities is yet to implement a risk-based, proactive compliance and enforcement approach and needs to strengthen its regulatory compliance activities in order to improve the overall effectiveness of WWC Checks. It has little assurance about whether employers are ensuring that all of their staff who need a WWC Card have one. Communities has also not taken steps to ensure that self-employed people who work with children comply with the requirements of the scheme. This increases the risk that some people in child-related work may not comply with the legislation and undergo the WWC Check screening process.
Communities also still needs to improve its own compliance and internal reporting. It has not identified exactly how many of its own staff require a WWC Check and does not report compliance to senior management. There is a risk that not all staff who need a WWC Card, have one. There has been an improvement in the number of foster carers with a valid WWC Card since 2014, but we found a small number, who at the time of the audit had child placements, without a WWC Card or an application in process. Over half of these were because they had not renewed their expired WWC Card.