Relationship Between Working With Children Check Requirements and National Law

Different criteria apply to whether a person can obtain a working with children check and whether they can work in or operate an education and care service. This was demonstrated in a recent case before the Queensland Civil and Administrative Tribunal: NPJ v Director-General, Department of Justice and Attorney-General. In that case the Tribunal considered whether NPJ should  be allowed to retain their Blue Card (Queensland working with children check).  Initially, compliance action (issue of Prohibition Notice under section 182) was taken, under the National Law, by the Queensland Regulatory Authority (under the National Law) against NPJ as they were deemed an unacceptable risk to children (they had left children unsupervised on a couple of occasions). Subsequently, the Prohibition Notice was withdrawn and NPJ was allowed to care for children on the basis of an enforceable undertaking under section 180 (note the bodies issuing working with children checks and those regulating childcare are different bodies). 

However, despite the Regulatory Authority no longer deeming NPJ to be a risk to children, the Tribunal upheld the previous decision to revoke the Blue Card: 

There is a clear difference between the test which is applied when determining whether a Prohibition Notice should be cancelled under the National Law and the test to be applied under the Working with Children (Risk Management and Screening) Act 2000 when deciding whether an “exceptional case” exists.

The Tribunal has previously rejected the argument that principles brought across from the family law jurisdiction involving “an unacceptable risk of harm” should be resorted to in order to interpret what is meant by the phrase “exceptional case”

The Prohibition Notice was the catalyst for these proceedings. Without that notice, the Tribunal may never have been aware of the Applicant's actions. However, once the Tribunal was seized of the matter then it must deal with it in accordance with the provisions of the Working with Children (Risk Management and Screening) Act 2000 with particular reference to s 228 of that Act. [paras.54-6].

Recently, there was a NSW case reported on by The Sydney Morning Herald in which the report assumed that as the person was permitted to obtain a working with children approval he would obtain approval to be involved in operating a childcare service. This is not necessarily the case as, again, different criteria apply under the two sets of laws. The case heard by the Supreme Court was Children’s Guardian v CHN.