Working with Children Checks: Not happy with a decision?

The Office of the Children’s Guardian (OCG) decides if you get a WWCC clearance. The OCG letter will tell you:

• why you didn’t get a clearance, and
• if you can challenge it. This means ask the NSW Civil and Administrative Tribunal (NCAT) to look at the OCG’s decision.

You have 28 days after you get the OCG letter to challenge it by applying to NCAT. If you miss this time limit you may still be able to challenge it – speak to a lawyer.

A lawyer can help you decide if you should challenge a decision.

If you challenge a decision, the OCG will have a lawyer.

You can have a lawyer too. Call LawAccess NSW on 1300 888 529 or start a web chat to find out where you can speak to a lawyer.

You can challenge most decisions. You may not be able to challenge it if:

• a court says you are guilty of a very serious offence – like sexual assault or violence against children, or
• police have charged you with a very serious offence and the court hasn’t decided the case yet.

If the court decides you are not guilty then you can apply again to the OCG.

There are two ways to challenge a decision by the OCG depending on the reason they rejected your application.

1. If the OCG letter says you didn’t get a WWCC because of a risk assessment, you should apply to NCAT for a review. See Working with Children Checks: What do I need to know? to learn more about risk assessments.
2. If the OCG letter says you didn’t get a WWCC because of a disqualifying offence you should ask NCAT for an enabling order. For more information, visit the NCAT website.

See Fees at NCAT on the NCAT website or call NCAT on 1300 006 228.

Step 1

Apply for a review

Visit the Working with children clearance review page on the NCAT website.

Complete the Administrative Review Application form.

You may need to pay an application fee when lodging your application.

Apply for an enabling order

Visit the Working with children enabling order page on the NCAT website.

Complete the General Application form.

Step 2

Attach a copy of the OCG’s letter, and say why you think the decision is wrong (this only needs to be short, you will get a chance to explain later).

Step 3

Lodge the form. You can

• take the completed form and attached documents to an NCAT registry or any Service NSW centre, or
• post the completed form (original plus 2 copies) to NCAT Administrative and Equal Opportunity Division and Occupational Division, PO Box K1026, Haymarket NSW 1240 (if you do this, allow time for it to get there within the 28 day time limit).

You may need to pay an application fee when lodging your application. You can pay at any Service NSW centre or NCAT registry. For more information, see Fees at NCAT on the NCAT website.

Visit the NCAT website or call 1300 006 228 if you need help.

You can’t apply to NCAT online, by email or fax.

NCAT will send a copy of your application to the OCG and send you and the OCG a letter to say when you must attend a ‘directions hearing’. A directions hearing is to let you and the OCG know what you need to do and when you have to give each other and NCAT your evidence.

The OCG will have some evidence already. However, it may get more evidence (for example, it may ask the NSW Police for your criminal history or DCJ for any child protection concerns).

You can give your evidence to NCAT too. For example, you could give NCAT a report from a psychologist or psychiatrist about whether you are a risk to children.

This is also called a risk assessment. A risk assessment is expensive. You should ask a lawyer if a risk assessment will help your case.

After the OCG and you have given NCAT your evidence, NCAT will hold a formal hearing.

NCAT will look at things like:

• how serious your offences were
• when your last offence was
• how old you were
• how old the victim was
• what you’ve done since then (for example, did you do a course or see a psychologist to help you not to offend again), and
• how likely you are to offend again.

NCAT can look at the OCG’s decision and any other information you or the OCG give them.

NCAT will only give you a WWCC if it agrees that you are not a risk to children.

No – unless NCAT gives you a ‘stay’. A ‘stay’ is when NCAT decides that you can keep working or volunteering with children until they make a final decision.

You can ask NCAT for a stay by completing the Application for stay or interim order file form (PDF, 164 kb) from the NCAT website. You can find this form on the NCAT website.

You can only appeal a decision of NCAT if makes a legal mistake in your case.

You can’t appeal an NCAT decision just because you disagree with the decision.

You must appeal to the Supreme Court of NSW no later than 28 days after NCAT decides not to give you a WWCC clearance.

Speak to a lawyer as soon as possible. If you appeal to the Supreme Court and lose you will usually have to pay the legal costs of the OCG, which could be thousands of dollars.