I am looking to gain employment in a NSW school as a Teachers Aide. I hold a WWCC paid and have signed an Appendix 11 form (no convictions In last 10yrs). However if I was to be offered paid employment it seems I will need to disclose that I have a spent conviction which is unrelated to working with children. It was approximately 18 years ago and a charge of larceny. Is this something I need to disclose. I was of the understanding I have the right to not disclose due to it being spent? Or does because this is to work in a school I must disclose this? It refers to spent convictions on the form. I have obtained a criminal history check which shows no convictions myself. Wondering if this spent conviction will appear when Dept Of Education conduct one.
NSW Spent conviction for larceny 18 years ago
- Thread starter Poopin
- Start date
-
- Tags
- spent conviction
No. And larceny is not related to the WWCC. This issue can get tricky as it is not discrimination as defined of the Fair Work Act.
Spent convictions are just that and it is public policy to avoid punishing a person more than once for certain kinds of offences.
If an employer takes action against an employee, or prospective employee based on spent convictions the person may have a claim against the employer.
My opinion (not advice) is not disclose, but enter something like 'not relevant'. You do not want to be seen as dishonest by providing a false answer. I wouldn't just leave it blank as leaving out an answer may be seen as a lie by omission.
I'm not a lawyer, but here's how I understand this issue...
Section 12 of the NSW Criminal Records Act states:
A lot of people think that if you are subject to a Working With Children Clearance, then section 12 doesn't apply to a separate Police check - but that's not the case at all. You need to pay careful attention to the grammar and punctuation used here. If you break it down, you get:
The use of the word "under" means that the two listed items relate directly to the stated legislation:
To simplify, you could rewrite the above as two separate provisions:
Where people often get this wrong, is by interpreting "the risk assessment", which is exclusive, as "a risk assessment", which is non-exclusive and could include any other type of check or clearance. The use of the word "the" means that s15(1A) applies only to "applications made under" and "risk assessments conducted under" the Child Protection (Working with Children) Act, etc. It does not apply to any other function or thing, including any other type of check or clearance.
So here's what basically happens when you apply for a job and you need both a Working With Children Clearance (WWCC) and a National Police Check (NPC):
The WWCC is conducted by the Office of the Children's Guardian. They obtain an NPC from the Australian Federal Police for the purpose of assessing your suitability to work with children. The NPC will include pretty much everything, including spent convictions. This is because of the application of both s15(1A) of the Criminal Records Act and s5C of the Child Protection (Working with Children) Act (which explicitly overrides the Criminal Records Act anyway). An assessment is then made, with the result being that you are either cleared or not cleared to work with children. Employers have access to your clearance status, but not any of the information used to determine that status. Any spent convictions are therefore only disclosed to the Office of the Children's Guardian and not anyone else.
For the purpose of checking your suitability for employment in general, another NPC is requested by the employer, or they may ask you to obtain this yourself. As this NPC has nothing to do with an application or risk assessment under the Child Protection (Working with Children) Act, s15(1A) of the Criminal Records Act doesn't apply and the provisions in s12 remain in force. As such, spent convictions are not included in this NPC.
It is also worth noting that:
1. It's an offence for a public authority to disclose information about spent convictions unless they are required to do so (s13 Criminal Records Act).
2. It's an offence for a person to dishonestly obtain or attempt to obtain information about spent convictions from a public authority (s14 Criminal Records Act).
But the law is a funny beast - which brings us to the really fun question...
If they claim that you are "required" to disclose spent convictions, then one of two things is happening:
1. there is other legislation that also applies here; or
2. they are making a false assetion and are likely breaking the law by doing so.
Section 12 of the NSW Criminal Records Act states:
If a conviction of a person is spent:
(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and
(b) a question concerning the person’s criminal history is taken to refer only to any convictions of the person which are not spent, and
(c) in the application to the person of a provision of an Act or statutory instrument:
But there are exclusions to this in s15 - and the one at s15(1A) in particular, is often misinterpreted:(a) the person is not required to disclose to any other person for any purpose information concerning the spent conviction, and
(b) a question concerning the person’s criminal history is taken to refer only to any convictions of the person which are not spent, and
(c) in the application to the person of a provision of an Act or statutory instrument:
(i) a reference in the provision to a conviction is taken to be a reference only to any convictions of the person which are not spent, and
(ii) a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.
(ii) a reference in the provision to the person’s character or fitness is not to be interpreted as permitting or requiring account to be taken of spent convictions.
"Section 12 does not apply in relation to an application by a person for a clearance under, or to the risk assessment of the holder of a clearance under, the Child Protection (Working with Children) Act 2012, the National Disability Insurance Scheme (Worker Checks) Act 2018 or a law of another State or Territory that corresponds to either of those Acts."
A lot of people think that if you are subject to a Working With Children Clearance, then section 12 doesn't apply to a separate Police check - but that's not the case at all. You need to pay careful attention to the grammar and punctuation used here. If you break it down, you get:
"Section 12 does not apply in relation to" <- this relates to everything that follows, which begins with a list of two items as determined by the commas...
"an application by a person for a clearance under," <- the first item;
"or to the risk assessment of the holder of a clearance under," <- the second item.
"an application by a person for a clearance under," <- the first item;
"or to the risk assessment of the holder of a clearance under," <- the second item.
The use of the word "under" means that the two listed items relate directly to the stated legislation:
"the Child Protection (Working with Children) Act 2012, the National Disability Insurance Scheme (Worker Checks) Act 2018 or a law of another State or Territory that corresponds to either of those Acts."
To simplify, you could rewrite the above as two separate provisions:
"Section 12 does not apply in relation to an application by a person for a clearance under the Child Protection (Working with Children) Act 2012, ..."
"Section 12 does not apply in relation to the risk assessment of the holder of a clearance under the Child Protection (Working with Children) Act 2012, ..."
Where people often get this wrong, is by interpreting "the risk assessment", which is exclusive, as "a risk assessment", which is non-exclusive and could include any other type of check or clearance. The use of the word "the" means that s15(1A) applies only to "applications made under" and "risk assessments conducted under" the Child Protection (Working with Children) Act, etc. It does not apply to any other function or thing, including any other type of check or clearance.
So here's what basically happens when you apply for a job and you need both a Working With Children Clearance (WWCC) and a National Police Check (NPC):
The WWCC is conducted by the Office of the Children's Guardian. They obtain an NPC from the Australian Federal Police for the purpose of assessing your suitability to work with children. The NPC will include pretty much everything, including spent convictions. This is because of the application of both s15(1A) of the Criminal Records Act and s5C of the Child Protection (Working with Children) Act (which explicitly overrides the Criminal Records Act anyway). An assessment is then made, with the result being that you are either cleared or not cleared to work with children. Employers have access to your clearance status, but not any of the information used to determine that status. Any spent convictions are therefore only disclosed to the Office of the Children's Guardian and not anyone else.
For the purpose of checking your suitability for employment in general, another NPC is requested by the employer, or they may ask you to obtain this yourself. As this NPC has nothing to do with an application or risk assessment under the Child Protection (Working with Children) Act, s15(1A) of the Criminal Records Act doesn't apply and the provisions in s12 remain in force. As such, spent convictions are not included in this NPC.
It is also worth noting that:
1. It's an offence for a public authority to disclose information about spent convictions unless they are required to do so (s13 Criminal Records Act).
2. It's an offence for a person to dishonestly obtain or attempt to obtain information about spent convictions from a public authority (s14 Criminal Records Act).
But the law is a funny beast - which brings us to the really fun question...
Exactly what form are you referring to here?
If they claim that you are "required" to disclose spent convictions, then one of two things is happening:
1. there is other legislation that also applies here; or
2. they are making a false assetion and are likely breaking the law by doing so.
SECTION A – this section applies if you are seeking employment (i) as a teacher or (ii) as teacher’s aide, in schools and TAFE.
I declare that:
1. Ihavenocriminalconvictions,includingspentconvictions,withinthemeaningoftheCriminal Records Act 1991 and I am not subject to any unresolved charges relating to a criminal matter in Australia or overseas.
2. Inmakingthisdeclaration,Iunderstandthat“conviction”isdefinedintheCriminalRecordsAct1991 and includes a conviction, whether summary or on indictment, for an offence, and includes a finding or order that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction.
I declare that:
1. Ihavenocriminalconvictions,includingspentconvictions,withinthemeaningoftheCriminal Records Act 1991 and I am not subject to any unresolved charges relating to a criminal matter in Australia or overseas.
2. Inmakingthisdeclaration,Iunderstandthat“conviction”isdefinedintheCriminalRecordsAct1991 and includes a conviction, whether summary or on indictment, for an offence, and includes a finding or order that an offence has been proved, or that a person is guilty of an offence, without proceeding to a conviction.
Okay. If this is on the actual application for employment, then yes, you need to disclose because of s15(1):
Section 12 does not apply in relation to an application by a person for appointment or employment as a judge, magistrate, justice of the peace, police officer, member of staff of Corrective Services NSW (within the meaning of the Crimes (Administration of Sentences) Act 1999), teacher or teachers aide.
Last edited:
As far as I can tell from what you've posted, you can only declare that you don't have any convictions (by signing the form or that particular section), so basically, this doesn't look good for you. I guess the only thing you can do is call the Department to find out if you're waisting your time or not.
Also, just to clarify my lengthy post earlier, the purpose of that was to explain that there are two different NPC's obtained in this process and they will usually contain different information. The NPC obtained by the Children's Guardian will always include everything and as you already know, the NPC that you obtained yourself doesn't include spent convictions. But if the Department of Education lodges their own application for an NPC for the purpose of employment as a teacher or teacher's aide, then that NPC will include them. This is because the information that the AFP discloses for NPC's is determined by state legislation.
The following pages at the AFP website explain how the system works:
AFP - Criminal History Checks - National Police Checks
AFP - Criminal History Checks - Frequently asked questions
AFP - Criminal History Checks - Spent Convictions Scheme
Also, just to clarify my lengthy post earlier, the purpose of that was to explain that there are two different NPC's obtained in this process and they will usually contain different information. The NPC obtained by the Children's Guardian will always include everything and as you already know, the NPC that you obtained yourself doesn't include spent convictions. But if the Department of Education lodges their own application for an NPC for the purpose of employment as a teacher or teacher's aide, then that NPC will include them. This is because the information that the AFP discloses for NPC's is determined by state legislation.
The following pages at the AFP website explain how the system works:
AFP - Criminal History Checks - National Police Checks
AFP - Criminal History Checks - Frequently asked questions
AFP - Criminal History Checks - Spent Convictions Scheme
Last edited:
Thanks for your replies.
Just wonder how it plays out when I’m allowed to volunteer with these kids (filling out all relevant forms) and because of how well I do this I get offered paid work that this will potentially rule me out. Given this was something that happened over 18 years ago. Thought the idea is exactly what you have stated, not discriminating when clearly I can do the job and a charge that is unrelated to working with children (from18years ago).
Just wonder how it plays out when I’m allowed to volunteer with these kids (filling out all relevant forms) and because of how well I do this I get offered paid work that this will potentially rule me out. Given this was something that happened over 18 years ago. Thought the idea is exactly what you have stated, not discriminating when clearly I can do the job and a charge that is unrelated to working with children (from18years ago).
I have an idea of what you're going through mate, so I feel for you.
Like many people, I did stupid things when I was young - some DUI's, last one was 25 or maybe even 30+ years ago. Jump forward to the mid 2000's, I worked as a pilot driver, escorting oversize trucks all over the country. Now NSW has introduced accreditation for pilot drivers and guess what - you need a clean driving record. So same story - even though I've done the work before, I probably have buckley's chance of getting accredited so I can do that work again. It's typical of the over-regulation that you see in this country.
Anyway, for you, if you have good relations with the staff at this school, then I'd recommend talking to the principle or whoever it was that has recommended you. Maybe they can tell you if it will have an impact or not and more importantly, how to fill out the stupid form in the first place.
Like many people, I did stupid things when I was young - some DUI's, last one was 25 or maybe even 30+ years ago. Jump forward to the mid 2000's, I worked as a pilot driver, escorting oversize trucks all over the country. Now NSW has introduced accreditation for pilot drivers and guess what - you need a clean driving record. So same story - even though I've done the work before, I probably have buckley's chance of getting accredited so I can do that work again. It's typical of the over-regulation that you see in this country.
Anyway, for you, if you have good relations with the staff at this school, then I'd recommend talking to the principle or whoever it was that has recommended you. Maybe they can tell you if it will have an impact or not and more importantly, how to fill out the stupid form in the first place.
That's a positive and it should work in your favour.
Similar threads
