Who needs a National Police Check?

Section 43(4) of the Minister’s Rules states the provider must ensure that each of the following check is carried out for each person who is an FDC educator for an FDC service, and be able to provide a written record of each check upon any request:

“a national police check from the State or Territory police service, or an agency accredited by the Australian Criminal Intelligence Commission, no more than 6 months before the date of the application.”

In simple terms, the Minister’s Rules require the provider to sight educators’ national police checks and be able to provide a written record of having done so at any time. This requirement only applies to new educators that are registered after 2 July 2018.

Additionally when an approved provider “attaches” (i.e. employs or registers) a new family day care educator to a service, the provider must provide a declaration to the Department of Education and Training, within 7 days, that they have sighted the national police check (that is no more than 6 months old) for the educator that they attach to the provider/service and that they have undertaken all checks required by section 43 as it applies in relation to the new person, together with details of the new person’s working with children card, if applicable (item 10 of section 55 of the Minister’s Rules).

Currently in Victoria under Regulation 359 Education and Care Services National Regulations, the approved provider of a family day care service must read and consider, or ensure that a nominated supervisor or the person in day-to-day charge of the service has read and considered, a person’s criminal history record check before engaging or registering the person as a family day care educator.

Please note: Individual family day care services may have different requirements in relation to assessing fitness and propriety, therefore it is important that educators check with their service before proceeding with an FDCA National Police Check.

Section 43(2) of the Child Care Subsidy Minister’s Rules 2017 outlines additional rules for provider eligibility and states that the provider must ensure that the following check is carried out for each person who has management or control of the provider (other than a person who is responsible for the day to day operation of the service), and be able to provide a written record of each check upon any request:

“a national police check from the State or Territory police service, or an agency accredited by the Australian Criminal Intelligence Commission, no more than 6 months before the date of the application.”

Providers should have appropriate policies, procedures and governance arrangements to ensure the on-going suitability of providers, as it is a condition of continued approval that such persons are fit and proper.

Section 43(3) of the Child Care Subsidy Minister’s Rules 2017 states that the “provider must ensure that each of the following check is carried out for each person with responsibility for the day to day operation of the service, and be able to provide a written record of each check upon any request:

(a) a national police check from the State or Territory police service, or an agency accredited by the Australian Criminal Intelligence Commission, no more than 6 months before the date of the application.”

Providers should also have appropriate policies, procedures and governance arrangements to ensure the on-going suitability of providers, and persons with management control of family day care services, as it is a condition of continued approval that such persons are fit and proper.

Under regulation 163 of the Education and Care Services National Regulations, approved providers of family day care services must ensure that a person aged 18 years or over who resides at a family day care residence is a fit and proper person to be in the company of children. They must also ensure that family day care educator assistant at a family day care residence or approved family day care venue is a fit and proper person to be in the company of children.

However, the means by which approved providers ensure that the above persons are fit and proper varies between jurisdictions. For example:

• In South Australia, Western Australia, the Northern Territory and the ACT the approved provider must consider one of the following in respect of the person:
  • a criminal history record check issued not more than 6 months before it is considered;
  • a current working with children check, working with children card or working with vulnerable people check issued on the basis of a criminal history record check;
  • a current teacher registration.
• In New South Wales or Queensland, the approved provider must consider the person’s current working with children check or working with children card.
• In Victoria, the approved provider must consider the person’s current working with children check or current teacher registration.
• In Tasmania, the approved provider must consider the person’s current working with vulnerable people registration.

It should also be noted that regulation 169 requires that approved providers must ensure that the family day care service has in place policies and procedures in relation to the assessment of family day care educators, family day care educator assistants and persons residing at family day care residences, including the matters required under regulation 163.

Additionally, regulation 164(1) states that the approved provider of a family day care service must require each family day care educator to notify the provider of:

• any new person aged 18 years or over who resides, or intends to reside, at the educator’s family day care residence; and
• any circumstance relating to a person who has previously been considered under regulation 163 in relation to the family day care residence that may affect whether the person is a fit and proper person to be in the company of children.

Please note: Individual family day care services may have differing policies in relation to assessing fitness and propriety.