Certain penalties apply to individuals and organisations who commit an offence against the Working with Children Act 2005 (the Act) and the Working with Children Regulations 2016 (the Regulations).

The tables below outline examples of offences and the penalties that might apply should the Act be breached.

We've also created a guide to offences so you are aware of what we regularly look for when assessing applications for a Check, or what we are notified about for current cardholders.

Please note: The information below is intended as a guide only. It is not legal advice and should not be taken as such. It is recommended that you seek independent legal advice relevant to your particular circumstances.

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Individuals

The table below outlines the offences and penalties that can apply to individuals when it comes to the Check.

 

Offences for individuals

Offences Defence/exception Max penalty* Section reference in the Act or Regulations
Engaging in child-related work if you do not have a Check, knowing that the work is child-related work, and that you do not have a Check.

You may work while your application is being assessed, only if you have not been given a Negative Notice, and:

  • you are not subject to reporting obligations or orders under the Sex Offenders Registration Act 2004, the Serious Sex Offenders Monitoring Act 2005, or a supervision or detention order, and

If an exemption applies to you, you may work in your chosen occupational field only if:

  • you have not been given a negative notice; and
  • you are not subject to reporting obligations or orders under the Sex Offenders Registration Act 2004, the Serious Sex Offenders Monitoring Act 2005, or subject to a supervision or detention order

If you are engaging in work as a volunteer, or undertaking practical training, it is a defence to the charge if your employer has been notified of your negative notice and is in the process of transferring you to non-child-related work, or in the process of lawfully terminating your employment.

You have been given a Negative Notice but have applied to VCAT and been granted a stay whilst your appeal is pending.

If you are engaging in child-related work that is out of home care (kinship care), and you have applied for a Check within 21 days of becoming a kinship carer.

 Two years imprisonment, or a fine of 240 penalty units* or both. 33(1)
Knowingly using a false card or another person’s card when you are applying for or doing child-related work. n/a Two years imprisonment, or a fine of 240 penalty units* or both. 38
Using a Volunteer Check to do paid work knowing you have a Volunteer Check and the work is for profit or gain.
  • You did not know that your Check was only a Volunteer Check, or
  • You did not know that the work you were engaging in was for profit or gain.
 A fine of five penalty units*. 37 (1)
Providing false or misleading information to the Department of Justice and Community Safety in your application for a Check or when the department is reassessing your eligibility to hold a Check.

You believed on reasonable grounds that:

  • the information provided was true; or
  • the information provided was not misleading.
 Two years imprisonment, or a fine of 240 penalty units* or both. 39 (1)

Applying for a Check when you are:

  • a registrable offender under the Sex Offenders Registration Act 2004
  • subject to an extended supervision order or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005
  • subject to a detention order or a supervision order.
 n/a Two years imprisonment or a fine of 240 penalty units*. 39A

Failing to notify your organisation/s and the department, in writing within seven days of a relevant change in circumstances.

A relevant change in circumstances is if:

  • you are charged with an offence listed in Schedule 1 or 2 of the Act
  • you are convicted or found guilty of an offence listed in Schedule 1 or 2 of the Act, or the charge has been finally dealt with
  • you become subject to:
    • reporting obligations under the Sex Offenders Registrations Act 2004
    • an extended supervision order or interim extended supervision order under the Serious Sex Offenders Monitoring Act 2005
    • a supervision order or a detention order, or an emergency detention order
  • A relevant professional conduct determination or finding is made against you by one of the bodies listed under regulation 8 of the Regulations.

It is a defence to a charge of failing to notify the department of how your charge has been finally dealt with if you can prove that:

  • you notified the department of the filing of the charge sheet; and
  • the department re-assessed your eligibility to have a Check, and
  • your Check was not revoked following the re-assessment, and
  • the charge was finally dealt with other than by a finding of guilty.
 A fine of 60 penalty units*. 20

Failing to notify the department of a change in your organisation/employer’s details within 21 days of becoming aware of the change.

This includes changes in the following details:

  • name of organisation/employer
  • address, and 
  • telephone number.
 n/a A fine of one penalty unit*. 20A

Failing to notify the department within 21 days of any changes to your:

  • full name, and any other names you are currently or have been known by
  • date of birth
  • residential address
  • phone numbers

if you either hold a Check or have applied for a Check.

 n/a A fine of one penalty unit*. Regulation 11 of the Regulations.
If you have been given a Negative Notice it is an offence to apply for or engage in child-related work.

You did not know the work you were applying for was child-related work

OR

You have applied to VCAT for an assessment notice and been granted a stay.

 Two years imprisonment, a fine of 240 penalty units* or both. 34 (1)
Failing to notify your organisation/employer in writing, of an Interim Negative Notice, or Negative Notice issued to you by the department, within 7 days of being given the notice. n/a A fine of 60 penalty units*. 22
Failing to surrender your card or other Check documents, if requested to do so by the department upon the revocation of your card. You have a reasonable excuse why you did not surrender the requested documents. A fine of 60 penalty units*. 21C (5)
Failing to surrender your first card within in 7 days, in circumstances where you have applied for and been given another card, and you have been directed to surrender your first card. You have a reasonable excuse why you did not surrender the first card. A fine of one penalty unit*. 24 (3)

If the Teacher exemption applies to you

Failing to notify in writing any organisation that engages you in child-related work, of any suspension or cancellation of your registration with the Victorian Institute of Teaching within seven days of receiving notice of the suspension or cancellation.

 n/a A fine of 60 penalty units*. 30 (2)

If the Teacher exemption applies to you

Failing to notify in writing the department of any person with whom you are engaged to perform child-related work that is not teaching in a school or an early childhood service, within 21 days after the engagement.

 n/a A fine of 10 penalty units*. 30(1A)

If the Police officer exemption applies to you

Failing to notify in writing any organisation that engages you in child-related work, of any suspension, dismissal or termination of your job as a police officer under the Victoria Police Act 2013, or Australian Federal Police Act 1979, within 7 days of receiving notice of the suspension, dismissal, or termination.

 n/a A fine of 60 penalty units*. 31 (2) and 31A (2)

Failing to provide information requested by the department pursuant to s 41A of the Act within 28 days, or any longer period specified in the notice.

 You have a reasonable excuse why you did not comply with the request, including if the information would incriminate you A fine of 60 penalty units*. 41A (2)

** Under the Child Employment Act 2003, the defences that may apply to offences committed by individuals are modified by section 19A(2) and (3) of that Act in respect of supervisors of children

Organisations

Every organisation that engages people in child-related work is also subject to penalties if an offence is committed against the Act. The table below outlines some of the offences and penalties that may apply.

 

Offences for organisations

Offences Exceptions / defences Maximum penalty for individuals* Maximum penalty for organisations* Section reference in the Act

Knowingly engaging or continuing to engage a person in child-related work who does not hold a valid Working with Children Check.
  • If the worker doesn’t need a Check because they’re exempt under the Act.
  • If the worker has applied for a Check and their application is being processed and has not been withdrawn or finally decided. (Tip: check the status of their application, and their work rights, on the website, to make sure they’re not prohibited from working while being assessed).
  • If you were in the process of transferring the worker to non-child-related work, or you were in the process of lawfully terminating them.
  • If you directly engaged the worker to undertake child-related work with your child, whether or not it involved direct contact with other children.
     
  • The worker has been given a Negative Notice but had applied to VCAT and been granted a stay.
  • If you did not know, but took all reasonable steps to know, that the worker did not have a Check.
 Two years imprisonment, or a fine of 240 penalty units* or both. A fine of 1200 penalty units*. 35
Offering the services of any person without a Check to another person or organisation for child-related work.
  • If the worker doesn’t need a Check because they’re exempt under the Act.
  • If the worker has applied for a Check and their application is being processed, and has not been withdrawn or finally decided. (Tip: check the status of their application, and their work rights, on the website, to make sure they’re not prohibited from working while being assessed).
  • If VCAT had issued a Negative Notice and the worker was pending appeal.
  • If you didn’t know the work was child-related work, and you didn’t know the worker didn’t have a Check, but you had taken all reasonable steps to know.
 Two years imprisonment, or a fine of 240 penalty units* or both. A fine of 1200 penalty units*. 36
Giving any person, directly or indirectly, any information acquired from a Check, including information obtained from the worker or from the Department of Justice and Community Safety. This applies to both individuals and organisations.
  • The information was given in good faith for the purpose of the Act, or for a reference check, or for making employment related decisions.
  • The information was given in good faith to the Commission for Children and Young People for the purposes of an investigation of a reportable allegation under Part 5A of the Child Wellbeing and Safety Act 2005.
  • The worker, or someone authorised to act on their behalf, gave written authority to release information.
  • It was given in the course of legal proceedings, or pursuant to a court or tribunal order.
  • It was given to enable the investigation or the enforcement of laws in Australia.
  • It was given to any person or body that has the same powers or functions as the Secretary to the Department of Justice and Community Safety or the Chief Commissioner of Police under the Act.
  • It was given to a lawyer for the purpose of obtaining legal advice or representation.
  • It was given as required or authorised by another Act.
 A fine of 60 penalty units*. n/a 40**
Engaging or continuing to engage a person in child-related work – knowing that the work is child-related work – for profit or gain if that person has a Volunteer Check.
  • You didn’t know the worker’s Check was only a Volunteer Check.
  • You didn’t know, but had taken all reasonable steps to know, that the worker was engaging in work for profit or gain.
 A fine of five penalty units*. n/a 37 (2)
Failing to provide information to the Department of Justice and Community Safety pursuant to s41A of the Act within 28 days or any longer period specified in the notice. 

You have a reasonable excuse why you didn’t provide the information.

 A fine of 60 penalty units*. A fine of 60 penalty units*. 41A (2)**

** Under the Child Employment Act 2003, the defences that may apply to offences committed by individuals are modified by section 19A(2) and (3) of that Act in respect of supervisors of children

*Penalty amounts

Offences against The Act carry penalties ranging from fines to imprisonment. The value of penalty units listed in the Act are determined each financial year by the Victorian Government under section 5(3) of the Monetary Units Act 2004.

Penalty unit 2019-20 financial year
1 $165.22
5 $826.10
60 $9,913.20
240 $39,652.80
1200 $198,264.00

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