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Abstract:
Screening the criminal history of people seeking to work or volunteer in child-related organisations commenced in Australia in 2000, and since then 'working with children check' schemes have expanded, largely without question. Every jurisdiction now has a legislated or administrative scheme, routinely checking the criminal histories of thousands of people to determine if they pose a risk to children. But in any regulatory regime, questions of effectiveness and efficiency arise. The main features of working with children check schemes operating in Australia are examined in this paper. Problems related to effectiveness, equity, and costs are identified. A better balance is needed between routine criminal history checks and other mechanisms for identifying and monitoring the risks posed to children by people who work with them.
Keywords: child abuse, crime prevention, risk management, social welfare policy, child sexual abuse
Introduction
There have been societal concerns about the maltreatment of children throughout history, but the degree of concern and whether threats are perceived to arise from within the family or externally, have varied over time. Understandings of child abuse and neglect are bounded by normative assumptions about children and childrearing, the role of the family, and the role of the state (Fox Harding 1991). Consequently, definitions of child abuse, child protection laws, and criminal justice responses to child abuse vary according to social context. They reflect community opinion and values and expert opinion from child protection professionals, as well as research. These different views on child maltreatment influence how much policy attention is directed towards controlling individuals perceived to be deviant, or improving the conditions of family life. In most western democracies, government policy has tended to swing between these two, which is characterised in child protection literature as 'child rescue' versus 'family support' approaches to protecting children from abuse and neglect (Whittaker 1991).
Child-related criminal history screening is a relatively new mechanism aimed at protecting children. In Australia, each state and territory has legislation or an administrative regime for undertaking child-related criminal history checks. The checks are asserted as a means to prevent people who pose a risk to children's safety from working or volunteering in child-related settings by making it 'as difficult as possible for unsuitable people to gain access to children who come into contact with organisations' (Irenyi et al. 2006: 16). These schemes provide guidelines for decisions about who or what constitutes a threat to children's safety, and how those threats or risks should be managed. In general, they involve requiring every person who wishes to work or volunteer in a child-related organisation to authorise a government agency to check his or her criminal history and have an approval notice issued; for example, Commission for Children and Young People and Child Guardian Act 2000 (Qld); Children's Protection Act 1993 (SA). If a person is assessed as a potential risk, approval to work or volunteer with children may be declined. In Australia, child-related criminal history checks were introduced from 2000 and since then have expanded largely without question.
There has been an increase in the formality, complexity, intensity and specialisation of regulation to improve government service delivery over the past two decades (Hood et al. 1998). Terms such as the 'regulatory state' (Hoggett 1996) and the 'audit society' (Power 1997) have been used to conceptualise this growth, which is linked to neoliberal forms of governance that have placed 'the lessening of risk, not the meeting of need' at the centre of social policy (Culpitt 1999: 35). Decreasing trust in government, business, and the professions has led to greater demands for accountability. The information-gathering, measuring, checking, and reporting processes of regulation are intended to provide assurance that government is properly managing risk. Regulation is taken to be good, regulators themselves are not exposed to systematic scrutiny, and the costs of regulation are assumed to be worthwhile (Hood et al. 1998). But it has been argued that the institutionalisation of various forms of audit is mostly about producing reassurance, and diverts resources from practices that would yield useful organisational intelligence (Power 1997). Empirical research on regulatory regimes has revealed a set of common problems: ritualistic compliance, which can occur if formal audit practices are separated from substantive organisational processes, leading to mechanistic compliance--'ticking the boxes'--that hides underlying problems of policy or administrative failure; regulatory capture, whereby regulators are unable or unwilling to take action if standards are not met; performance ambiguity, which arises when 'good' standards cannot be clearly established; and data problems, whereby there is difficulty in measuring compliance due to adequate data being unavailable, even when performance standards are clear (Ashworth et al. 2002).
Recognising that there are costs to over-regulation, but cautioning that regulation has grown because less formal systems of control have failed or weakened, it has been argued that rather than decreasing regulation, regulatory mechanisms need to be more 'responsive', co-ordinated with other quality and accountability mechanisms, and tailored to context (Ayres & Braithwaite 1992; Hood et al. 1998). Regulation should be practical, and a diversity of regulatory strategies is required. This would involve less reliance on the 'search every suitcase' strategy, instead moving to more self-regulatory models, including random checking methods to decrease bureaucratic routines but maintain the overall regulatory effect. Regulation can be expensive, involving both the direct costs of funding and staffing regulatory bodies, and the indirect or compliance costs for the entities that must comply with standards and demonstrate they have complied (Hood et al. 1998). These theoretical understandings and empirical findings on government regulation provide a framework for a critical analysis of criminal history checking for child-related organisations in Australia.
Background and scope of working with children checks
Pre-employment criminal history checks were conducted by employers for certain categories of workers, such as teachers and child protection workers, before the current working with children check systems were introduced. But concerns about the sexual abuse of children provided the impetus for broad, legislatively-sanctioned working with children checks: 'The political triggers in Australia for increased criminal record checking have primarily come from publicised cases of sex offenders working with children, and more generally the media staple of naming and shaming sex offenders' (Naylor 2011: 87). In 1996, in the context of the Wood Royal Commission into the New South Wales Police Force, which inquired extensively into paedophilia, all state and territory community services ministers agreed to implement criminal record screening of paid or volunteer workers in children's services (Budiselik et al. 2009). Perceived failings in the criminal justice system led government to seek to assure the public that safeguards would be implemented to protect children (FaHCSIA 2011). New South Wales was the first Australian jurisdiction to introduce a legislated scheme in 2000 (Commission for Children and Young People Act 1998), followed by Queensland in 2001 (CCYPCGA 2000 s.154), Western Australia in 2004 (Working with Children (Criminal Record Checking) Act 2004), Victoria in 2005 (Working with Children Act 200S), the Northern Territory in 2007 (Care and Protection of Children Act 2007 s. 184), South Australia (CPA 1993 s.8B) and the Australian Capital Territory in 201 1 (Working with Vulnerable People (Background Checking) Act 2011). In Tasmania, where the scheme operates through administrative arrangements, there is no legislation.
Each jurisdiction's regime specifies who is screened, what organisations are covered, and what criminal history is taken into account (Berlyn et al. 201 1). Requirements apply for people to obtain clearance to work or volunteer in a wide array of organisations that provide services to, or activities for, children: schools and education programs; child care; health, counselling and support services; churches, clubs and associations; sport and recreation; emergency services; and child protection and residential care services. Clearance obtained in one jurisdiction does not apply in other jurisdictions. Currently, as part of the National Framework for Protecting Australia's Children, jurisdictions are working towards a nationally consistent approach to child-related criminal history screening (Commonwealth Department of Families, Housing, Community Services and Indigenous Affairs (FaHCSIA) 2011).
Since commencement, some schemes have been reviewed, usually leading to expansion. Queensland reports that over 100,000 organisations are registered as being in scope of the system in that State (CCYPCG 2012a: 3). Changes to the NSW regime that extended the scheme's depth and breadth are being enacted through the Child Protection (Working with Children) Act 2012, which began to take effect in 2013. Announcing the changes, the NSW Minister for Citizenship and Communities (Dominello 2012) stated that 'these changes will ensure it [the working with children check] remains an internationally recognised safeguard for protecting children and young people'. Across jurisdictions, the rationale for working with children checks is generally stated as preventing those people who pose a risk to children's safety and wellbeing, in settings where they have the opportunity to develop a trust relationship with a child, from being able to work or volunteer in those settings. It is as a means of preventing people known to have been associated with, charged, or found guilty of, certain offences from being employed or volunteering in a child-focused organisation (Irenyi et al. 2006). In 2009, the NSW Children's Commissioner said that checks had become 'firmly entrenched as [an] accepted--and expected--safety measure for kids' (NSW CCYP 2009: 24).
Depending on the jurisdiction, responsibility for administering the scheme and conducting the checks is held by the children's commission, child guardian, or a government agency such as the police or child protection agency. Screening processes usually occur in two steps. The first stage is checking an individual's criminal history for certain offences to identify the level of risk the person poses to children. The second involves excluding unsuitable people from child-related employment. Many types of criminal offences are taken into account, in addition to sexual offences against children--drink driving, domestic violence, murder and manslaughter, assault including sexual assault, and drug offences may cause a negative notice to be issued. Offences considered relevant to the decision to prevent someone working with children vary between jurisdictions. Criminal convictions as a child or adult, including spent convictions and no conviction recorded charges, and pending charges may be taken into account. In Queensland, information from police investigations can be used, even if there was no charge (CCYPCGA 2000 s.305). 'Disciplinary information' is considered, for example, where it relates to concerns with the quality of care provided by a foster carer, or in the case of police and teachers, any 'disciplinary action' taken in relation to the performance of their professional duties (for example, CCYPCGA 2000 ss.283 & 284, WWVP(BC)A 2011 s.28(e)). When the check on an applicant shows relevant convictions or charges, an assessment is made by an officer of the administering agency about whether the applicant poses a risk to children. Legislation also contains disqualifying offences, which prohibit a person from applying for a check or which automatically mean the application is refused or a clearance revoked. These are generally sexual or violent offences, particularly, but not exclusively, against children (for example, CCYPCGA 2000 s.168, WWQCRQA 2004 s.12). Criminal records may be monitored over the period of the certificate, or only considered prior to employment commencing. The duration of a 'clearance' or 'positive notice' varies from two to five years before renewal applies. Where legislated, issuing a negative notice is a reviewable decision, and persons denied clearance may appeal: to the administrative appeals tribunal in Queensland (CCYPCGA 2000 s.354), New South Wales (CP(WWC)A 2012 s.27), ACT (WWVP(BC)A 2011 s.61), Victoria (WCA 2005 s.26) and Western Australia (WC(CRC)A 2004 s.26), or a local court in the Northern Territory (CPCA 2007 s. 194).
The checks apply to all persons who want to work in designated child-related employment. This means that children aged under 18 years seeking to work or volunteer with other children are subject to checks in most jurisdictions. In the Northern Territory, checks apply to persons aged 15 years and over (CPCA 2007 s.203), and in the Australian Capital Territory, to persons aged 16 years and over (WWVP(BC)A 2011 s. 12). Queensland and Western Australia distinguish between volunteering and working, such that child volunteers are not required to seek a check (CCYPCGA 2000 s.160, WC(CRC)A 2004 s.6(3)). Victoria is the only jurisdiction that does not subject children to seek clearance as to their criminal history. Foster carers, including carers who are relatives--for example, grandparents--and their adult household members require checks. In some jurisdictions, professional registration for certain categories of employees--for example, teachers, child care workers, police officers, and medical practitioners--embeds criminal history checks in the registration process (Berlyn et al. 2011: 2) and these professionals are therefore exempt from the working with children check regulatory regime. Most schemes focus specifically on protecting children, whereas the ACT scheme has a broader remit of screening to protect vulnerable persons, including children, people with disabilities, and marginalised citizens such as homeless people or asylum seekers. These more generic checks consider the same or similar conviction and non-conviction histories and disciplinary information.
In summary, child-related criminal history screening schemes across Australia are broad in scope--in respect of the types of regulated employment, the number of people and organisations required to participate, and the range of information considered in the assessment. Drawing on available public data and information about the administration of working with children check regimes, the paper now turns to a critical discussion of the issues associated with the schemes. These relate to effectiveness, equity, and cost.
Effectiveness
The gap between the number of people who are screened and the number of people found unsuitable is very large. In Queensland, over 2.3 million applications, authorisations and renewals have been processed since the scheme's inception in 2001, involving over 1.15 million applicants and over 2 million cards and renewals (CCYPCG 2012a). At June 2012 over 500,000 people held positive notices or exemptions permitting them to work with children (CCYPCG 2012b). This represents approximately 14 per cent of Queensland's eligible population. A minority of people screened have a relevant criminal record. Since the scheme's inception, over 5,800 'high risk individuals' have been prevented from working with children, including 868 individuals out of 280,524 applications (0.3 per cent) in 2011/12 (CCYPCG 2012b: 84). This low rate of refusals is consistent with other jurisdictions (for example, Victoria Department of Justice 2012b; NSW CCYP 2012). In Queensland for 2011/12, the main reason for refusing applications related to violent offences against adults (43 per cent); seven per cent involved child violence and another seven per cent involved child sex offences (CCYPCG 2012a: 5).
The nature of checking criminal history is that it relies on the person having already come to the attention of police and justice systems. However, research has consistently found that much abusive behaviour has historically gone unreported, and the majority of sexual abuse perpetrators detected do not have prior convictions for any form of child maltreatment (Smallbone & Wortley 2001; Irenyi et al. 2006). Therefore, false positive results are inevitable: some people approved to work with children will commit an offence in the future, and some approvals are issued to people who have avoided being reported, charged or convicted in the past. Criminal records checking has been described as simultaneously too broad and too narrow, because everyone is screened but checks only identify the small proportion of people whose problematic behaviour has previously been detected (Naylor et al. 2008: 197; Smallbone et al. 2008). However, it is acknowledged that to some extent the schemes are preventative, in that there are people who believe they are unlikely to be approved who do not apply, and others are prohibited from applying for an approval due to their serious offences.
Screening is not failsafe, and may give children, parents, employers and regulators a false sense of security about people who work with children. The Queensland CCYPCG reports that public confidence about the contribution to the scheme in creating 'safer service environments for children', as indicated by stakeholders surveyed in 2011/12, was at around 94 per cent, with 39 per cent rating the system as 'excellent' (CCYPCG 2012a: 3). Environments that protect children are achieved by organisations understanding and implementing sound recruitment strategies and having policies and procedures that provide ongoing supervision of employees and volunteers (Irenyi et al. 2006; Smallbone et al. 2008: 206). Government agencies administering working with children checks consistently acknowledge that screening should not be solely relied upon to protect children's safety (for example, NSW CCYP 2009). They propose that criminal history screening should operate in conjunction with ongoing monitoring of a person's criminal record as well as attention to organisational culture and functioning. Variously referred to as 'child-safe', 'child-friendly' and 'risk management' strategies, organisations whose business is working with children are encouraged, or required by law (as in Queensland), to implement policies and procedures addressing human resource management, reporting of suspected child abuse or neglect to the relevant authorities, listening to children's views, and hearing children's complaints (Irenyi et al. 2006: 17). But there is limited policy attention, oversight, or resources directed to these more proactive mechanisms. Some jurisdictions report on compliance checks and audits that occur within organisations, but the contribution that these policies and strategies make to keeping children safe is unclear. Although there were 100,000 organisations in scope in Queensland in 2011/12, there were fewer than 3000 downloads of the risk management kit (CCYPCG 2012a: 3) and only 257 organisations were subject to compliance checks (CCYPCG 2012a: 9). As well as ongoing supervision, education and training for staff would be desirable, so that when staff are concerned about colleagues, even if concerns are low-level, 'not-quite-right' activities--such as having after-hours contact with children, inviting children home, giving children gifts--they are encouraged to act and raise their concerns with management. Many people are disinclined to imply that a colleague is acting improperly when the person has been screened and approved. Organisations may believe that the checking regime keeps children safe because everyone has received clearance. The threat that is 'out there' has been prevented from getting into the organisation. However, because the checking process is separated from substantive organisational processes such as supervision and training, it can disguise risk and obviate organisations from using other measures to identify and manage risks to children.