If the Department of Justice and Community Safety determines that you pose an unjustifiable risk to the safety of children, you will fail the Check and be issued with a Negative Notice.
A Negative Notice prohibits you from doing child-related work, even if you qualify for an exemption. The Negative Notice is effective from the date on the notice.
A copy of your Negative Notice is sent to all organisations you have listed with the department, but they are not told of the reason for the Negative Notice. By law, you must inform all organisations that engage you in child-related work that the department has issued you with a Negative Notice within seven days of the date on the notice.
If you remove an organisation from your records, the department can inform them of their removal.
If the department issues you with a Negative Notice, you cannot apply for a Check again for five years, unless your circumstances change. If you apply after this time, by law you must not do any child-related work until you pass the Check. If the department issues you with a second Negative Notice, you cannot apply again for another five years.
If you are a Negative Notice holder, you can only re-apply for a Check within five years if there is a relevant change in circumstances such as:
- a pending charge against you is withdrawn or struck out by the court
- you are found not guilty of a pending charge
- a finding of guilt is set aside or quashed
- you are no longer subject to or required to report under the:
- Sex Offenders Registration Act 2004
- Serious Sex Offenders Monitoring Act 2005
- Serious Sex Offenders (Detention and Supervision) Act 2009.
You can appeal the department’s decision by applying to the Victorian Civil and Administrative Tribunal (VCAT) within 28 days of the date on the Negative Notice.
- stay the Negative Notice pending your appeal
- agree with the department’s decision to give you a Negative Notice
- set the Negative Notice aside and order the department to give you a Check
- ask the department to reconsider the matter.
Before directing the department to issue an applicant with a card, VCAT must:
- give paramount consideration to the safety of children
- determine if you would pose an unjustifiable risk to the safety of children if granted a Check
- determine that it is in the public interest to issue you a Check.
When determining if you would pose an unjustifiable risk to the safety of children, VCAT considers the following factors:
- the nature and gravity of the offence and its relevance to child-related work
- the period of time since the offence was committed
- whether a finding of guilt or conviction was recorded for the offence or a charge for the offence is still pending
- the sentence imposed for the offence
- the ages of the applicant and victim at the time the offence was committed
- whether the conduct has been decriminalised since the applicant committed the offence
- the applicant’s behaviour since committing the offence
- the likelihood of the applicant posing a future threat to a child
- any information the applicant provides in or about the application
- any other matter VCAT considers relevant to the application
- whether a reasonable person would allow their child to have direct and unsupervised contact with the applicant
- whether the applicant is suitable to do any type of child-related work without posing an unjustifiable risk to the safety of children.
For the full list of the factors VCAT considers, go to VCAT applications: Factors for consideration.