Convicts getting permits, court cases not examined: Inside the flawed working with children system

Sydney Morning Herald

4 hours ago

In late June, Melbourne woman Jane* was alerted that the man she had accused of sexually assaulting her as a child had been cleared by the Victorian government to work with children.
'He confessed to police to abusing me as a three-year-old and after he was charged, I was told he would never get his working with children check back,' recalls Jane. 'I couldn't understand how this could be possible, especially after the [scandal linked to alleged childcare paedophile Joshua Brown].'
Jane says immediate shock was soon replaced with a question. If her accused could be given the green light to work with children, did it indicate the WWCC regime – the state's system of background checking those who work with children to weed out potential predators – was deeply flawed?
In September 2022, Jane's alleged perpetrator was found not guilty in the County Court of 11 counts of indecent assault over allegations he had repeatedly abused her in the 1970s and 1980s, while she was a child.
The court judgment wasn't a declaration of innocence but rather a finding that prosecutors had not proved the case to the criminal standard of beyond reasonable doubt.
For Jane's accused to be charged and tried in the first place, the Victorian Director of Public Prosecutions had concluded that evidence gathered by sex crimes detectives was strong enough to provide a reasonable prospect of conviction. After that, but also before the trial, the evidence against the accused man had also been weighed in a committal hearing by a magistrate, who had reached the same determination as the DPP.
Jane says this is because the evidence gathered, including a partial confession, was compelling, even if some of the information uncovered by detectives was not ultimately presented to the jury that delivered the not-guilty verdicts.
But if the evidence was enough to convince police, a magistrate and the DPP that her accuser should stand trial, it wasn't sufficient to ban him from working with children.
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After Jane sought explanations from Victorian authorities in July about how her accused perpetrator had been granted a WWCC, she was told that the prosecution failure may have contributed to the decision to reassess him as 'safe', despite the initial stripping of the man's WWCC when he was first charged.
'It doesn't make sense to me,' says Jane. 'The statistics tell us that so many sex assault prosecutions fail. But this doesn't mean the accused should then be allowed to work with children.'
Jane is not the only one worried. Experts, advocates and, previously, the public sector watchdog, have all criticised Victoria's WWCC system, which involves the government screening those who work with children for their criminal and regulatory histories.
Concern has grown after the arrest of Joshua Brown threw gaps in the state's system of protecting children into the spotlight.
Victoria launched a review of the childcare system following Brown's arrest. The state government agrees the WWCC scheme needs to be toughened and is promising reform.
The scheme requires those working with children to submit an application that details their criminal and working history to the state government, which in turn cross-references these self-disclosures with police and, under reforms introduced this year, a range of other bodies. Denial of a WWCC means the applicant can't work with young people, but they can launch a judicial appeal of their ban.
Critics claim the WWCC regime is too weak because the legal framework underpinning it prevents authorities from canvassing and acting on all the information that may exist about an applicant. For instance, a confession from an accused to police that is not presented as evidence in a trial, as in the case of Jane, can't be accessed by WWCC authorities. Advocates and officials say bans are also too easily overturned on appeal.
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An analysis by The Age of 18 cases before the Victorian Civil and Administrative Tribunal has revealed a series of remarkably inconsistent outcomes, including convicted child sex offenders and criminals retaining their WWCC on appeal despite moves by the government to have them barred.
This appeal process mirrors NSW's, which Premier Chris Minns promised to overhaul this month, describing it as a 'loophole' which 'makes a mockery of the working with children check'.
Appeals upheld by the Victorian tribunal include convicted criminals: a naturopath who was found to have repeatedly threatened his ex-partner and allegedly punched his 14-year-old step-daughter in the face (although that allegation did not lead to a charge); a man accused of raping his 14-year-old stepsister but who was later convicted on a lesser charge of committing an indecent act with a child under 16; and a man jailed for sexually assaulting a 13-year-old girl and later convicted of recklessly injuring his seven-year-old son.
In each case, the tribunal was satisfied that despite the convictions, the appellants posed no risk to children.
The state government is yet to detail how it will reform the scheme or indicate if information such as police intelligence might be added to the vetting system so a person who has never been charged, or who has beaten charges, can still be banned in certain circumstances.
Among the VCAT cases reviewed by this masthead was that of a teacher acquitted of grooming a 12-year-old boy. The teacher was separately accused of inappropriately touching three children in his classroom three years earlier.
Although he was found not guilty over the 12-year-old boy in a 2017 trial, the government revoked his working with children check in 2022, citing the earlier allegations against him.
The government fought for the ban to be upheld, arguing the teacher posed an unjustifiable risk to children. It urged the tribunal to believe allegations made by a former student in a recorded interview. The ex-student said that in 2011 the teacher would often call him over to his desk during class and touch the young boy's genitals with his hand.
Police investigated the allegation at the time, but no charges were laid as the parents did not want to put their son through the court process.
The tribunal sided with evidence from the teacher. The 37-year-old man now lives in Tasmania, where he has applied to return to teaching. One government source with detailed knowledge of him, who spoke on the condition of anonymity, described the VCAT decision as deeply concerning.
In 2018, a man convicted of indecent assault of a 14-year-old girl and who also raped his ex-partner while his victim's child was nearby, was granted clearance after appealing the decision. In granting the appeal, the tribunal considered his remorse, low IQ and low chance of re-offending.
In another case two years earlier, a student exercise physiologist convicted of drug charges had his appeal rejected. The tribunal found the man had turned his life around, was a model prisoner and was caring towards children. However, the appeal was rejected on the chance he relapsed.
The person who advised Jane that her alleged abuser had been cleared to work with children is Fiona Boyle, who runs one of the nation's leading child safety and worker screening organisations, Kooyoora. Boyle discovered the man had been cleared to work with children as part of Kooyoora's weekly review of the WWCC registry.
It is a cumbersome routine but Kooyoora performs the review partly because of gaps in Victoria's system, including one which Boyle says enables a 'motivated' offender to potentially keep working with children even if they have their WWCC suspended.
This loophole arises because a WWCC holder can update their system details so it appears they are no longer working with a certain employer – who would ordinarily be notified if their WWCC is suspended or withdrawn - even though they are still engaged as an employee or volunteer.
Boyle is also gravely concerned that people posing a danger to children can too easily appeal a WWCC removal before the state's administrative tribunal and win.
'People who challenge their WWCC stripping always seem to get it [the WWCC approval] back,' says Boyle. 'The system has big gaps and there is heaps of room for improvement,' she says, noting that inconsistent WWCC regimes around the country also pose challenges for those trying to keep children safe.
Boyle also believes WWCC applicants should undergo a character reference check and there should be a major funding boost to educate parents, employers and organisations about how they too can better spot risks.
Phillip Doorgachurn, director of safeguarding at the Australian Childhood Foundation, agrees the system is in desperate need of repair.
'We should be having a central agency which manages all child safety issues rather than several … What that means is that you have really skilled professionals rather than people who maybe have no experience of child safeguarding.'
Doorgachurn is also worried that the existing system permits credible complaints by suspected child victims to go ignored by those reviewing WWCC applications.
'Those children aren't believed or not listened to,' he says.
But senior barrister and leading human right advocate Greg Barns, SC, who is the criminal justice spokesman for the Australian Lawyers Alliance, urges caution when it comes to reform, saying a review of the WWCC is needed but warning that any changes must not trample on a fundamental human right: the right to work.
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Barns has been involved in cases in which he says relatively minor or historical offending, or cases involving ultimately unproven charges that should never have been prosecuted, have been overzealously used to ban a person from working.
Reform of the system, he says, must 'balance the right to work with the … need to keep children safe'.
Victorian Greens spokesperson for early childhood Anasina Gray-Barberio says the danger lies in not doing enough and that the WWCC system is 'completely broken'.
'Without proper scrutiny, the system has failed to detect and close dangerous loopholes, and predators have been able to exploit it with ease,' she says.
Victoria's working with children check system was slammed by the state's ombudsman in 2022 as being among the weakest in the nation. The then ombudsman, Deborah Glass, urged the government to immediately reform the state's laws.
The damning report found the unit tasked with screening workers was unable to consider highly concerning police and child protection intelligence.
'We get information that's quite concerning sometimes, but we can't do anything with it. There has to be a trigger,' a director in the unit told the public sector watchdog.
Despite the ombudsman's 2022 warnings, no action to reform the WWCC regime was taken until April this year.
The changes increase the information sources available to deny a WWCC (now assessors can examine the findings of various sector regulators and VCAT tribunal members) but still deny access to potentially credible sources of information about a person's history such as police statements or court evidence.
The confession to police from Jane's alleged perpetrator, for example, could remain out of reach for the WWCC unit under the new laws because the case led to no conviction.
Jane also told this masthead the WWCC unit staff she spoke to were dismissive and indifferent to her concerns.
Premier Jacinta Allan has promised to adopt every recommendation made as a result of the ongoing reviews triggered by the Joshua Brown case. But any crackdown on WWCC laws may have little to no impact on how VCAT reviews appeals because the tribunal is governed by its own set of laws.
Attorney-General Sonya Kilkenny did not respond when asked if the government would consider introducing similar legislation introduced by the NSW government last week, which made its independent child safety regulator the sole reviewer and decision maker on WWCC applications.
The NSW government said the new powers would '[ensure] that child safety remains in the hands of the specialist regulator best equipped to assess risk.'
Professor Ben Mathews, a leading expert on child abuse prevention, was instrumental in overhauling time limitation laws for child abuse survivors. The professor said the working with children checks were a 'very blunt tool' and governments should consider a tiered system in which those without convictions but still considered a risk are granted conditional work rights that require additional oversight and regulation.
'Working with children checks are a very, very blunt tool for a number of reasons. The most important reason is that the vast majority of people who have sexually offended against kids have never even been charged, let alone convicted, let alone imprisoned.
'It's one tool in a suite of tools – and it's arguably the least effective and the least important tool. I'm not saying it shouldn't be there, but to the extent that it's there, it should be there in a strengthened form.'
He is adamant on one point: 'If someone does have a criminal conviction for a child abuse-related offence, they should never be able to work with kids again.'