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Criminal Records and Clearance Checks

Many employers will not employ a person with a criminal record, particularly where an offence involves an element of dishonesty. It is, however, unlawful to impair equality of opportunity or treatment in the workplace because of an irrelevent criminal record, see Irrelevant criminal record.

In addition, the dismissal of an existing employee because of a conviction may give rise to an application for unfair dismissal if the conviction is not relevant to the employee's work, see employment: unfair dismissal.

See COURT - CRIMINAL MATTERS, Effect of criminal convictions, Duty to disclose charges proved, Criminal records, Spent convictions.

Some convictions may affect license holders and registered professionals, and both charges and convictions may be assessed for the purpose of working with children checks and Working with people with disability NDIS checks.

License holders and registered professionals

Licensees (e.g. liquor licence holders, second hand dealers, security guards)

For some licences, convictions for fraud or dishonesty offences may lead to revocation of a licence. Applicants for certain licences must be 'fit and proper' to hold a licence or be of good name or character, depending upon the wording of the relevant Act.

Some licences may be revoked if the holder commits certain types of offences. For example, a licensee of premises where liquor can be sold or consumed can be subject to disciplinary action where that person has been convicted of an indictable offence or an offence against the Liquor Licensing Act 1997 (SA). Disciplinary action can include the revocation of that person’s licence by the Licensing Court.

Second-hand dealers do not have to be licensed but may be disqualified from carrying on business as a second-hand dealer if convicted of an offence of dishonesty or an offence against the Second-hand Dealers and Pawnbrokers Act 1996 (SA) [s 6].

A criminal conviction may also affect security and investigation agents such as security guards, alarm installers, crowd controllers, investigators, etc.

Under the Security and Investigation Industry Act 1995 (SA) a person is excluded from having a licence if they are found guilty or convicted of a prescribed offence. A list of prescribed offences appears under regulation 6 of the Security and Investigation Industry Regulations 2011 (SA). More information about the relevant offences is available at SA.GOV.AU.

This means that the Commissioner for Consumer Affairs is prohibited by legislation from granting a Security Agents licence to an applicant if they have a conviction for a prescribed offence, such as assault. It is possible to make an application to the Minister to be exempt from a specific provision of the Security and Investigation Industry Act 1995 (SA).The Minister has specific power to grant an exemption under section 33 of the Security and Investigation Industry Act 1995 (SA).

The Labour Hire Licensing Act 2017 (SA) and Labour Hire Licensing Regulations 2018 (SA) govern the mandatory licensing process for specified labour hire service providers in South Australia, and any responsible person/s to whom the license relates. Further information about specific labour hire licensing is available through the Consumer and Business ServicesLabour Hire Licensing website [link opens in a new window].

Certain professionals, such as medical practitioners, legal practitioners, nurses and teachers must be registered or admitted to practise. Such professionals may be 'struck off' or be refused entry to the profession if convicted of certain offences on the basis that such a conviction means that person is not of good character.

Working with children checks

The Child Safety (Prohibited Persons) Act 2016 (SA) and Child Safety (Prohibited Persons) Regulations 2019 (SA) came into force on 1 July 2019. Under this legislation, it is an offence for a person to work with children in South Australia without having obtained a working with children check in the last 5 years [see Child Safety (Prohibited Persons) Act 2016 (SA) s 16]. The maximum penalty for a first or second offence is a fine of $20,000 and for a third or subsequent offence, a fine of $50,000 or imprisonment for one year.

Those who work with children and as of 1 July have not yet had a national police check screening conducted by their organisation, or a working with children check conducted by the screening unit in the last 3 years (see What if a person has already had a screening check?), and are not excluded from the requirement to have a check (see Who is excluded from the requirement to have a check?), should apply for a working with children check without delay. A person cannot legally work with children while waiting for a working with children check to be processed*, which may take up to six weeks.

If a person is in doubt about whether they require a working with children check or whether they are otherwise prohibited from working with children (See Who is prohibited from working with children?), they should have a look at the website of the Department of Human Services Screening Unit (opens new window) or seek legal advice.

The information in this section applies from 1 July 2019.

What if a person has already had a screening check?

There are transitional periods for those who have already had a screening check.

Unless stated otherwise, the transitional period for provisions relating to the Child Safety (Prohibited Persons) Act 2016 (SA) and the Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA) end on 30 June 2022.

Transitional period to 1 July 2020

If the responsible authority of an organisation conducted a screening check in relation to a person by assessing a police check or other evidence under regulation 6(1)(a) of the Children’s Protection Regulations 2010 (SA), then the prohibitions on working with children without having obtained a screening check will not apply for 12 months (i.e. until 1 July 2020) [see section 8A of the Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA)].

This will no longer apply if the person becomes a prohibited person or once a new working with children check is conducted [s 8A(3)]. See Who is prohibited from working with children?

The screening unit may issue those to whom this applies with a unique identifier (if they don’t already have one) [Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) s 8A(4)].

Transitional period until current check expires

If a person has obtained a clearance for child-related employment from the DCSI/DHS Screening Unit within the last 3 years (as at 1 July 2019) , it will be taken to be a working with children check for the person until it expires [see Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) s 8(1)]. These expire at 3 years, and the person will then be required to apply for a working with children check.

This will no longer apply if the person becomes a prohibited person, nor once a new working with children check is conducted [s 8(2)] See Who is prohibited from working with children?

The screening unit may issue those who obtained a working with children check before 1 July 2019 with a unique identifier (if they don’t already have one) [Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) s 8(4)].

How is "work with children" defined?

A person will be taken to be working with children if they run a business that provides, or they themselves provide, a service or undertake an activity that is child-related work* in the course of their employment (including those who are self-employed, contractors, ministers of religion or those engaged in the duties of a religious or spiritual vocation, students who undertake practical training, volunteers or those performing unpaid community work pursuant to an order of the court) [see Child Safety (Prohibited Persons) Act 2016 (SA) s 6(3) and 7]. Child-related work includes a range of services provided to children, but does not include personal or domestic arrangements [s 6(1)(n)].

Child-related work is defined to include the following services and activities [s 6(1)]:

  • accommodation and residential services for children
  • services or activities provided by religious organisations
  • childcare or child-minding services
  • child protection services
  • services or activities provided in the course of the operation of clubs and associations with a significant membership of, or involvement by, children
  • coaching or tuition services for children
  • commercial services provided directly to children
  • disability services for children
  • education services for children
  • health services for children
  • justice and detention services for children
  • transport services for children, and
  • any other service or activity declared by the regulations to be child-related work.

Other services or activities in the course of which contact with children occurs only incidentally or would not reasonably be expected to occur will not be taken to be child-related work [s 6(1) (o)]. A person will be taken to have contact with a child if they have physical contact with the child, are in close proximity to the child or communicate with the child (whether orally or in writing, electronically or otherwise) [Child Safety (Prohibited Persons) Regulations 2019 (SA) reg 7(6)].

In addition, a service or activity will not be taken to be child-related work merely because a person employs a child in the course of the service or activity or undertakes the service or activity in the same capacity as the child to whom the service or activity relates [s 6(1a)].

The regulations may provide for any other service or activity to be included or excluded from the definition of child-related work [s 6(1)(m) and (p)].

Who is excluded from the requirement to have a check?

Some people will be excluded from the requirement to have a working with children check. For example, a person who has not, or believes on reasonable grounds that they will not, work with children on more than 7 days in a calendar year (consecutive or not and not including any overnight excursion or stay with any child or close personal contact with children with disability) will be excluded [s 9(3) and (4)]. As soon as a person works with children on more than 7 days (whether consecutive or not) in a calendar year, they cease to be an excluded person [s 9(3)].

Members of South Australia Police and the Australian Federal Police are also excluded [s 9((1)(c)]. As are emergency services workers (until 30 June 2022) by section 8B of the Children’s Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 (SA) unless and until they become a prohibited person; they obtain a check or cease to be such a worker.

The regulations further provide that the following people are excluded [reg 9]:

  • anyone under the age of 14 years
  • parents or guardians who are providing a service or activity that is child-related work on a voluntary basis where the children to whom it is provided include the person’s own child and it does not consist of or include accommodation or residential services or close personal contact with a child other than the person’s own child
  • those who have a valid WWCC from the Commonwealth or another State or Territory, and are providing a service or activity in South Australia that is child-related work in the course of an organised event not exceeding 10 days.

In relation to the exclusion for parents and guardians, it is important to note that accommodation and residential services would include care provided to a child overnight and involving sleeping arrangements (whether on a short term or ongoing basis) and services provided in the course of an excursion or camp [reg 7]. Parents and guardians are not excluded from the requirement to have a check for the purposes of these services.

Close personal contact includes an act involving intimate bodily function such as using a toilet or an activity involving nudity, or exposure or partial exposure of the genitals, buttocks or breasts [reg 9(3)]. In any legal proceedings, the onus would be on the person claiming to be an excluded person, to prove that they are an excluded person [s 9(6)].

Who is prohibited from working with children?

A person is a prohibited from working with children under the Child Safety (Prohibited Persons) Act 2016 (SA) if they [s 15(1)]:

This means that a person may be prohibited from working with children independently of a check.

It is an offence for a prohibited person to work with children. The maximum penalty for this offence is a fine of $50,000 or imprisonment for one year [s 15(3)].

What are prescribed offences?

Section 5 of the Act defines prescribed offences. They include a range of offences where the victim was a child, including a conspiracy or attempt to commit any of the following, or aiding or abetting the commission of any of the following:

  • assault with intent to commit an offence of:
    • murder, manslaughter, kidnapping and unlawful child removal, rape and other sexual offences, incest, child exploitation offences,
  • these offences themselves or similar previous offences or like offences against a law of the Commonwealth or another State or Territory or foreign jurisdiction.

There are some offences that are excluded from the definition by regulation 5(a) where the victim consented to the conduct constituting the offence and either the victim was not less than:

  • 15 years of age and the offender was 18 years of age, or
  • 16 years of age and the offender was 19 years of age.

Spent convictions are also excluded from the definition of a prescribed offence, but may still form part of the assessable information for the purposes of a working with children check [Child Safety (Prohibited Persons) Regulations 2019 (SA) reg 5(b)].

How is a working with children check conducted?

A working with children check involves the Department of Human Services Screening Unit looking at the assessable information relating to a person against the prescribed risk assessment criteria and determining whether or not the person poses an unacceptable risk to children [see Child Safety (Prohibited Persons) Act 2016 (SA) s 26(1)]. It does not just involve a police check [ s 25(2)]. The unit must determine whether or not the person is prohibited from working with children [s 26(5)]. The unit is not bound by the rules of evidence and may inform itself as it thinks fit [s 26(3)]. It must, however, conduct working with children checks in accordance with guidelines published in the Gazette [ss 4 and 26(4)].

A working with children check may be used in relation to any child-related work even if it was conducted in relation to a particular position, service, activity or employer [s 26(6)].

How are applications made?

An application for working with children check (WWCC) must be made to the Department of Human Services Screening Unit accompanied by information reasonably required by the unit, as well as the prescribed fee [s 27]. An application may be made by the person themselves or by their employer [s 27(2) and reg 16(1)]. The person’s employer must notify them of the application [reg 16(2)].

If an application for a WWCC is made, but before it is conducted the person to whom the application relates becomes a prohibited person under the law of the Commonwealth or another State or Territory or by reason of having been found guilty of a prescribed offence, the unit need not conduct or continue the WWCC in relation to the application [reg 16(3)].

Similarly the unit may refuse to consider an application if it has already conducted a WWCC in the last 5 years and issued a prohibition notice to the person that has not been revoked [s 27(3)].

The unit must issue a receipt to each applicant for a WWCC and a unique identifier (if they don’t already have one) [s 27(4)].

The unit must conduct or continue a WWCC even if an application is withdrawn [s 28]. The unit may also conduct a WWCC in relation to a person at any time on its own motion [s 30].

Is a fee payable?

If a person satisfies the screening unit that they are a volunteer, they may obtain a working with children check without any fee being payable. However, if the person uses the working with children check to work with children other than as a volunteer on seven or more days of a calendar year, they must then pay the prescribed fee within 28 days [Child Safety (Prohibited Persons) Act 2016 (SA) s 33A]. The maximum penalty for this offence is a fine of $5,000. However, the offence may be expiated for $315.

For a list of prescribed fees, visit the Department of Human Services -Screening Unit Fees website.

What is "assessable information"?

Assessable information may include information about any of the following [see Child Safety (Prohibited Persons) Act 2016 (SA) s 8]:

  • Offences the person has been charged with
  • Offences the person has been found guilty of
  • Disciplinary action taken against the person
  • Findings of misconduct made against the person
  • Cancellation of approval as foster parent under the Family and Community Services Act 1972 (SA) or as approved carer under the Children and Young People (Safety ) Act 2017 (SA)
  • Notifications made pursuant to the Children’s Protection Act 1993 (SA) or the Children and Young People (Safety) Act 2017 (SA)
  • Harm caused or risk of harm to a child held by the Department for Child Protection

It may also include any information provided by the person for the purposes of the working with children check or any information declared to be assessable by the regulations.

Information may be assessable regardless of the outcome of any proceedings, action or appeal to which the information relates [s 8(2)(f)].

The regulations provide that assessable information may include information provided to the unit pursuant to the Act, such as information from a public sector agency, as well as information relating to charges of prescribed or presumptive disqualification offences, restraining orders or intervention orders, and any other information determined by the Registrar to be assessable in accordance with the guidelines published in the Gazette [reg 8; see also s 4].

When won't the screening unit assess all the information?

The screening unit is not required to assess all assessable information relating to a person [see Child Safety (Prohibited Persons) Act 2016 (SA) s 26(2)]. This may occur for any reason, but will most definitely occur where the person has been found guilty of a ‘presumptive disqualification offence’ [s 26A]. In these cases, the person will be presumed to pose an unacceptable risk to children and the screening unit, need not consider or assess any further information in relation to the application. The screening unit must determine that the person is prohibited from working with children unless the person satisfies the unit that [s 26A(1)(c)]:

  • The circumstances of the presumptive disqualification offence are such that the offence should be disregarded in the determination, or
  • Exceptional circumstances exist in relation to the person that the person does not appear to, or no longer appears to pose an unacceptable risk to children.

Presumptive disqualification offences will be declared by the regulations, and will include both presumptive disqualification offences and prescribed offences where the charge has not yet been finally determined [s 26A(3)(b)].

What measures provide procedural fairness in the assessment?

The Child Safety (Prohibited Persons) Regulations 2019 (SA) require the screening unit to [reg 10(1)(a) and (b)]:

  • take reasonable steps to notify the person to whom the WWCC relates of the application (if they are not the applicant) and any assessable information known to the unit,
  • specify a period within which the person may make submissions to the unit in relation to the assessable information, and
  • have regard to any submissions made by them within the specified period

This does not apply where [reg 10(2)]:

  • the Registrar is of the opinion, based on the information available to the Registrar, that the person poses an immediate and serious risk to child safety
  • the assessable information consists of or includes information relating to a prescribed offence with which the person has been charged, but has not yet been determined
  • the person is already a prohibited person
  • any other instances determined by the Registrar

If the unit prohibits a person from working with children, the unit must provide reasons for the prohibition in accordance with the guidelines published in the Gazette [reg 10(1)(c) and s 4]. Section 10 of the Child Safety (Prohibited Persons) Act 2016 (SA) does, however, provide an exception to the requirement to provide reasons relating to criminal intelligence, see How is a prohibition notice issued or revoked?

How is a prohibition notice issued or revoked?

Revoking a notice

If the Department of Human Services Screening Unit determines that a person is to be prohibited from working with children, the unit must issue a prohibition notice to the person by serving it in accordance with section 51 of the Act [s 32(1) and reg 18(1)(b)]. In issuing a prohibition notice the unit must comply with the guidelines published in the Gazette [reg 18(1)((c) and s 4]. The notice must set out the person’s full name and date of birth, the person’s unique identifier, the date of issue, the reasons why the unit issued the notice, and information setting out how the person can seek a review of the unit’s decision to issue the notice by the South Australian Civil and Administrative Tribunal [s 30(2)(c) and reg 18(2)].

If the unit has made a decision to prohibit a person from working with children based on information classified by the Commissioner of Police as "criminal intelligence", the unit need not provide reasons for the prohibition other than that it would be contrary to the public interest to allow the person to work with children [s 10(1)]. Criminal intelligence includes information relating to actual or suspected criminal activity the disclosure of which could prejudice a criminal investigation, identify a confidential source or endanger a person's life or physical safety [s 5]. Any argument in relation to this, must on the application of the Commissioner of Police, be held in private in the absence of the parties, and may be by way of affidavit [s 10(2)].

Issuing a notice

The unit may, on the application of a prohibited person to whom a notice relates or on its own motion, revoke a prohibition notice [s 33]. This may only occur where the only grounds on which the person is a prohibited person is the prohibition notice [s 33(1)(a)]. In other words, the person is not otherwise a prohibited person under a law of the Commonwealth or a State or Territory or by reason of having been found guilty of having committed a prescribed offence. The prohibited person would need to satisfy the unit that the prohibition notice was issued in error or there is fresh and compelling assessable information that, if assessed in the course of the original working with children check, would have materially affected the outcome [s 33(1)(b)]. Revocation of the prohibition notice involves the unit conducting a further working with children check and determining that the person is not prohibited [s 33(1)(c)].

Reviews by the South Australian Civil and Administrative Tribunal SACAT

A person may apply to SACAT for review of the screening unit’s decision to issue or revoke a prohibition notice [s 43]. The application for review must be made within 14 days of receiving notice of the unit’s decision [s 43(2)]. SACAT may only allow an extension of time if satisfied that special circumstances exist and another party will not be unreasonably disadvantaged by the delay [s 43(3)]. For more information, see State administrative appeals.

Do those who obtain a check have any ongoing obligations?

Yes, person to whom a unique identifier has been issued must notify the screening unit if [s 40(1)]:

  • they change their name or they use another name
  • there is a change to the assessable information contemplated by section 8 of the Act arising from something occurring after the person’s most recent working with children check
  • they are prohibited from working with children under a law of the Commonwealth or another State or Territory
  • they become a registrable offender or make a disclosure to their employer under the Child Sex Offenders Registration Act 2006 (SA)

It is an offence for a person to refuse or fail to notify the screening unit of these matters as soon as is reasonably practicable as required by section 40(2) and regulation 24. The maximum penalty for this offence is $50,000 [s 40(3)].

Must employers check that employees have obtained a check?

It is an offence for an employer to employ a person in a prescribed position without first checking that the person has had a working with children check in the last 5 years and that the person is not a prohibited person [Child Safety (Prohibited Persons) Act 2016 (SA) s 17].

It is also an offence for an employer to employ, or continue to employ, a prohibited person in a prescribed position [s 15(4)].

What are prescribed positions?

According to s 5 of the Child Safety (Prohibited Persons) Act 2016 (SA) and reg 6 of the Child Safety (Prohibited Persons) Regulations 2019 (SA), positions which are prescribed include:

  • a position in which a person works, or is likely to work, with children
  • every position in the public service administering the Child Safety (Prohibited Persons) Act 2016 (SA) or the Children and Young People (Safety) Act 2017 (SA)
  • a position in which a person is employed to provide preschool, primary or secondary education to a child (whether or not the person is a registered teacher)
  • Registrar of the Teachers Registration Board
  • Registrar of the Education and Early Childhood Services Registration and Standards Board of South Australia
  • a person employed in the Office of the Director of Public Prosecutions as a witness assistance officer.

A working with children check must be conducted in relation to the person every 5 years [s 18].

Employers may wish to ensure their employees have obtained a check even if an employee is not being employed in a prescribed position.

Do employers have any ongoing obligations?

Those employing a person in a prescribed position* must notify the screening unit if they become aware of any of the following:

  • any assessable information in relation to the person
  • the person is prohibited from working with children under a law of the Commonwealth or another State or Territory
  • the person becomes a registrable offender or make a disclosure to their employer under the Child Sex Offenders Registration Act 2006 (SA)

It is an offence for an employer to refuse or fail to notify the screening unit of these matters as soon as reasonably practicable as required by section 19(2) and regulation 12.

The maximum penalty for this offence is $25,000 [s 19(3)].

For prescribed positions, see Must employers check that employees have obtained a check?

Can parents check whether a person working with their child has a check?

Yes, a person who is responsible for a child in respect of whom child-related work is being, or is about to be performed, may request the person who is performing the work to provide their full name and unique identifier (if any).

It will be an offence for the person performing the child-related work to refuse or fail to comply with the request. A person can comply with a request in accordance with a scheme set out in the regulations. The maximum penalty for this offence is $10,000 [s 44].

Anyone may inspect the records held by the screening unit to check whether someone is or was ever prohibited from working with children and/or when their working with children check was conducted [ss 34 and 35]. A person who inspects the records should be given some evidence of the fact that they inspected the records [s 35(3)].

It may be that a parent just asks whether the person who is working with their child has a current working with children check. In such cases, it would be an offence for a person to falsely represent that they themselves or someone else has had a working with children check in the last 5 years or that they are not a prohibited person. The maximum penalty for this offence is a fine of $50,000 or imprisonment for one year [s 45].

Working with people with disability checks (NDIS)

On 1 February 2021, the Disability Inclusion Act 2018 (SA) was amended by the Statutes Amendment (Screening) Act 2019.

From this date onwards, only workers who undertake National Disability Insurance Scheme NDIS work and support require a clearance check. The NDIS Worker Check Clearance is mandatory for workers who work for Registered NDIS Providers. Unregistered NDIS Providers can ask their workers to have an NDIS Worker Check clearance, but it is not a requirement. Information about screening requirements of Unregistered NDIS Providers is on the NDIS Quality and Safeguards Commission website (opens new window).

The new parts of the legislation relate to the requirement for screening of those working with people with disability, and set out how screening of NDIS workers is to be conducted. The NDIS Worker Screening checks will begin nationally from 1 February 2021. In South Australia, the Department of Human Services (SA) Screening Unit will conduct these screenings.

Currently (as at 1 February 2021), acceptable checks for workers providing NDIS support and services are:

  • Department of Human Services Disability Services Employment Screening Clearance

  • Department of Human Services Child-related Employment Screening Clearance

  • Department of Human Services Working with Children Check (issued before 1 February 2021)

These checks are considered acceptable for NDIS work until they expire or are revoked. Any new NDIS worker who requires a check, or whose existing check expires, must apply for an NDIS Worker Clearance check.

The Act sets out that the Disability Inclusion (NDIS Worker Check) Regulations 2020 may allow working with children checks to be recognised as a check for the purpose of working with people with disability [s 23(2)(d)]. However, in South Australia if a person is undertaking work with children with disability, they are required to have both a Working with Children Check and an NDIS worker screening check.

When is a clearance check required?

From 1 February 2021, a person who works with people with disability must have a screening check that is no more than 5 years old [s 22(1) Disability Inclusion Act 2018 (SA)]. This requirement does not apply to Unregistered NDIS Providers. It also does not apply to an excluded person [s 22(2)]. See Who is an excluded person? in 'NDIS Worker Check - Exclusion Notice'.

The purpose of the screening check is to assess whether a person who works, or seeks to work, with people with disability poses a risk of harm to them.

It is an offence for a person who does not have a current screening check to work with people with a disability. The maximum penalty for a first or second offence is $20,000 and for a third or subsequent offence $50,000 or imprisonment for 1 year.

If a person in South Australia is providing NDIS services and support to children with disability, they are required to have both a Working with Children Check and an NDIS worker screening check.

Further information about types of current screening checks is available on the Department of Human Services - Screening Unit website (opens new window).

How is "working with people with disability" defined?

Under the Act a person works with people with disability, if the person:

  • provides a service or undertakes an activity in the course of their employment of a kind that is prescribed in the regulations; or
  • operates a business that provides a service or undertakes an activity of the kind referred to in the regulations, whether or not the person provides the service or activity themselves.

[s 20(a) and (b) Disability Inclusion Act 2018 (SA)]

Examples of the type of work for which it is necessary to have an NDIS Worker Check include:

  • work that involves the NDIS worker directly delivering support or services to a person with disability
  • working in a key personnel role (i.e. a Manager or Board Member) of a service that provides support to people with disability
  • Working in a role which requires the NDIS worker to have ‘more than incidental contact’ with people with disability, such as:
    • having physical contact with a person with disability; or
    • building a rapport with a person with disability as an integral and ordinary part of the performance of normal work duties; or
    • having contact with multiple people with disability as part of the direct delivery of a specialist disability support or service, or in a specialist disability accommodation setting.

Employment includes those who are self-employed, contractors, ministers of religion or those engaged in the duties of a religious or spiritual vocation, students undertaking practical training, volunteers, or those performing unpaid community work pursuant to an order of the court [s 19(2)].

Who is prohibited from working with people with disability?

Under the Disability Inclusion Act 2018, a person is prohibited from working with people with disability if:

  • they have been issued with a prohibition notice under the Act;
  • they are prohibited from working with people with disability under another Commonwealth State or Territory law;
  • they have been found guilty of a prescribed offence committed as an adult.

[s 21]

Application for NDIS Worker Check Clearance

Part 5A of the Disability Inclusion Act 2018 (SA) sets out the process for screening of NDIS workers who engage in NDIS work.

NDIS work means work that is undertaken as part of, or in connection to providing support and services to people with disability under the National Disability Insurance Scheme [s 18A]. People who engage in NDIS work as a volunteer on their own will be regarded as being self-employed as a volunteer under the Act [s 18A(6)(b)].

Who may apply for NDIS Worker Check Clearance?

A person may apply to the central assessment unit for a clearance check to be an NDIS worker. The person applying must:

  • reside in, or intend to reside in South Australia;
  • undertake, or intend to undertake NDIS work in South Australia.

[s 18G(2)]

If the applicant is unable to meet the requirements under s 18G(2) than the application may not be accepted for assessment.

An application for an NDIS Worker Check clearance must be made in the manner and form approved by the central assessment unit, include any information required by the central assessment unit, be accompanied by proof of identity, and include payment of the prescribed fee(if applicable) [s 18G (3)].

The NDIS Worker Check Clearance is mandatory for NDIS workers who work for Registered NDIS Providers. Unregistered NDIS Providers can ask their workers to have an NDIS Worker Check clearance, but it is not a requirement.

Information about the specific manner and form that applications for NDIS Worker check clearance must adhere to is available on the Department of Human Services – Screening Unit website (opens new window).

Can an applicant withdraw an application for an NDIS Worker Clearance check?

A person can withdraw their application for an NDIS Worker clearance at any time by notifying the screening unit in writing. The screening unit must consent to the withdrawal of the application unless:

  • the applicant holds a current clearance that is under suspension;
  • the applicant’s most recent clearance was cancelled under Part 5A of the Act (or a corresponding law);
  • the screening unit has (or is proposing to) notify the applicant that it proposes to issue an NDIS Worker Check exclusion to applicant, but that the decision has not yet been made;
  • the screening unit is of the opinion that there is a reasonable likelihood that a risk assessment of the applicant will determine that the applicant poses a risk of harm to people with disability.

[s 18G(7)].

Is a fee payable?

If a clearance is granted to a person and that person satisfies the central assessment unit that they are a volunteer, no fee for the clearance is payable.

However, a fee is payable for an NDIS worker clearance check where the person is not, or is no longer a volunteer. A person ceases to be a volunteer if they undertake paid work other than as a volunteer for 7 days or more in a calendar year [s 18ZJ].

People not permitted to apply for NDIS Worker Check Clearance

A person cannot apply for NDIS worker clearance if the person:

  • already has an application for a clearance check that is pending;
  • holds a current clearance under the Act (or a corresponding law), unless the application is made no more than 3 months before the current clearance is due to expire;
  • is subject to a ban from applying for an NDIS worker clearance under the Act. See ‘NDIS Worker Check - Exclusion Notice’ and ‘Who is a disqualified person?’;
  • has had a clearance cancelled under the provisions of the Act and is banned from applying for a clearance for 5 years following the cancellation, except where:
    • the cancellation was at the request of the person;
    • the cancellation was based on an assessment that the person would not be engaging in NDIS work [s 18S(2)]; or
    • the cancellation was due to the applicant’s failure to provide requested information in time [s 18W(2)];
    • there has been a relevant change in circumstances [s 18H(3)(c)]. A relevant change in circumstances includes that the proceedings for an offence are withdrawn or no finding of guilt was made, a finding of guilt for an offence was later quashed or set aside, or a determination in relation to risk assessment was later set aside, and any other circumstances that the screening authority considers relevant [s 18H(4)].

NDIS Worker Check - Exclusion Notice

The screening unit may issue an NDIS worker check exclusion notice if:

  • the applicant is a disqualified person, see ‘Who is a disqualified person?’; or
  • a risk assessment is conducted that determines the applicant poses a risk of harm to people with disability.

Before issuing an exclusion notice, the screening unit must notify the applicant of its intention to issue an exclusion notice based on a risk assessment. The screening unit must also notify the applicant that they can make submissions to the screening unit before the exclusion notice is issued.

[ss 18J(1)and (2)].

Who is an excluded person?

A person who has been excluded from applying under Part 5A of the Act is an ‘excluded person’ under the Act. They are excluded from applying for an NDIS worker clearance for 5 years, except where there has been a relevant change in their circumstances [s 18H(3)].

Persons presumed to pose a risk of harm

In addition to the exclusion notices issued under s 18H of the Act, certain people are not permitted to apply for NDIS Worker check clearance.

A person who has been guilty of a presumptive disqualification offence will be presumed to pose a risk of harm to people with disability [s 18K (1)(a)]. See ‘Who is a presumptively disqualified person?

In assessing an application for NDIS Worker check clearance from a person who has been found guilty of a presumptive disqualification office, the screening unit must determine that the person poses a risk of harm to people with disability [under s 18J] unless the applicant:

  • satisfies the screening unit that the circumstances of the offence are such that it should be disregarded in assessing whether the applicant poses a risk to people with disability; or
  • satisfies the screening unit that such exceptional circumstances exist in relation to the applicant that they do not (or no longer) appear to pose a risk to people with disability.

[s 18K(1)]

Who is a disqualified person?

A person is a ‘disqualified person’ under the Act if they have been found guilty of a disqualification offence committed when they were an adult [s 18B(1)].

This does not include a finding that only the objective elements of the offence were established. However, these findings may ‘presumptively disqualify’ the person [s 18B (2) and (3)]. See 'Who is a presumptively disqualified person?'

If an applicant for an NDIS Worker check is a disqualified person, the screening unit must issue an NDIS Worker check exclusion notice [s 18J(1)(a)]. See ‘NDIS Worker Check - Exclusion Notice

An exclusion notice issued to a disqualified person remains in force indefinitely [s 18Q].

Disqualifying offences

Some examples of disqualifying offences include:

  • Murder
  • Conspiring or soliciting to commit murder
  • Causing death or harm by use of a vehicle where the offender intended to cause death
  • Unlawful removal of child from South Australia (where the child is not a relative)
  • Kidnapping (where the offence involved a child or vulnerable person who were not related to the offender)
  • Rape (where the offence involved a child or vulnerable person)
  • Unlawful sexual intercourse in a position of authority
  • Persistent sexual abuse of child
  • Sexual exploitation of a person with a cognitive impairment
  • Abduction of a child under 16 years (where the child is not a relative)
  • Dishonest communication with children
  • Assault with intent (where the offence involves a child or vulnerable person)

A full list of disqualification offences is listed in Schedule 1 of the Disability Inclusion (NDIS Worker Check) Regulations 2020 (opens new window).

Who is a presumptively disqualified person?

A person who has been found guilty of a presumptive disqualification offence committed when they were an adult is a ‘presumptively disqualified person’ [s 18B(3)].

This includes offences where a finding is made that only the objective elements of the offence were established [s 18B(2) and (3)].

A person who has been found guilty of a presumptive disqualification offence will be presumed to pose a risk of harm to people with disability [s 18K(1)(a)]. See Persons presumed to pose risk of harm in 'NDIS Worker Check - Exclusion Notice'.

Presumptive disqualification offences

Some examples of presumptive disqualifying offences include:

  • Manslaughter
  • Criminal neglect (where the victim was a child or vulnerable person receiving care supports or services from the offender)
  • Failing to provide food etc (where the victim was a child or vulnerable person receiving care supports or services from the offender)
  • Aggravated assault (where the offence involved a child or vulnerable person)
  • Dishonest exploitation of position of advantage (where the offence involved a child or vulnerable person)
  • Misuse of personal identification information (where the offence involves a vulnerable person or child)
  • Cultivation of controlled plants for sale (commercial or large commercial quantity)
  • Sale of controlled plants (commercial or large quantity)
  • Ill treatment of animals (Animal Welfare Act 1985)
  • Distribution of invasive images (where the offence involved a child or vulnerable person)
  • Indecent filming (where the offence involved a child or vulnerable person)
  • Neglect or Ill treatment offence under the Mental Health Act 2009
  • Obtaining property or a financial advantage by deception (where the offence involved a child or vulnerable person)
  • False or misleading information in documents
  • Failing to protect child at risk of child sexual abuse offence
  • Drug offences involving children

A full list of presumptive disqualification offences can be found in Schedule 2 of the Disability Inclusion (NDIS Worker Check) Regulations 2020 (SA) (opens new window).

Can an NDIS Worker Clearance be suspended or cancelled?

The DHS screening unit may suspend a clearance at any time by notice in writing if it is of the opinion that a further risk assessment of the person would determine a risk of harm to people with disability [s 18R].

A clearance may similarly be cancelled if:

  • the person becomes a disqualified person ; or
  • a risk assessment determines that the person poses a risk of harm to people with disability [s 18S].
  • the screening unit is not satisfied that the person is engaged in NDIS work [s 18S(2)(a)] or
  • the clearance was granted under an invalid application [s 18S(2)(b)]; or
  • the clearance was granted due to a mistake [s 18S(2)(c)].

There are obligations on employers of persons working with people with disability to advise the DHS Screening Unit if the employer becomes aware [s 22C]:

  • of assessable information in relation to the employee; or
  • that the employee is prohibited from working with people with a disability under a law of the Commonwealth or another State or Territory.

Fines can apply to employers.

What happens if a clearance is cancelled?

A person who has had a clearance cancelled under this part (or a corresponding law) is banned from applying for a clearance for 5 years following the cancellation. There are some exceptions where a person may apply for a clearance within the 5 year period, where:

  • The cancellation was at the request of the person [s 18H(3)(a)]; or
  • The cancellation was due to the fact that the applicant did not satisfy the central assessment authority that they would engage in NDIS work [s 18S(2)(a) and s 18H(3)(b)]; or
  • The clearance was granted (and subsequently cancelled) based on an invalid application [s 18S(2)(b)] or
  • The clearance was granted because of a mistake and should not have been granted [s 18S(2)(c)]; or
  • The application was cancelled because the applicant failed to provide the requested information within a set time period without reasonable excuse [s 18W (2)].

Can a person make submissions or seek a review?

The screening unit will usually notify an applicant of the intention to issue an exclusion notice, and allow the applicant an opportunity to make a submission to the unit within a set timeframe [s 18J(2)]. The unit must then consider any such submissions before finally determining the application [s 18J(3)].

What type of decision can SACAT review?

Decisions of the screening unit to issue an exclusion notice, terminate an application [see s 18G(9) and reg 10 of the Disability Inclusion (NDIS Worker Check) Regulations 2020] or to suspend or cancel a clearance (except where the person is disqualified or presumptively disqualified because of pending criminal charges) are reviewable by the South Australian Civil and Administrative Tribunal SACAT [s 18ZI(4)-(5)].

A review must be sought within 14 days of notice of the reviewable decision being received by the applicant [s 18ZI(2)]. However an application for review of a decision to suspend a clearance cannot be made until the suspension has been in place for at least 6 months [s 18ZI(3)]. An extension of time to apply to SACAT to review a decision may only be granted where the tribunal is satisfied that special circumstances exist and another party will not be unreasonably disadvantaged by the delay [s 18ZI(4)].

When is an NDIS worker exclusion issued?

The screening unit must issue a NDIS worker check exclusion if the applicant for the check is a disqualified person or a risk assessment determines that an applicant poses a risk of harm to people with disability [s 18J]. An NDIS worker check exclusion must be by notice in writing, setting out the reason for an exclusion and any right to seek review of the decision [s 18L].

If the unit makes a decision on the basis of information that is classified as “protected information” by the Registrar or “criminal intelligence” by the Commissioner of Police, the unit is not required to provide reasons for the decision (other than it would be contrary to the public interest to allow the person to work with people with disability) [ss 18C(1) and 18D(2)].

"Protected information" is information which, if disclosed, may:

  • prejudice a criminal investigation; or
  • identify a person with a disability who has been harmed; or
  • identify a person who has made a report of harm to a person with disability; or
  • endanger a person’s life or physical safety and wellbeing.

[s 18A].

Criminal intelligence may include information which could disclose a confidential source of information [s 18A]. Any argument heard by the Court in relation to criminal intelligence information must be on the application of the Commissioner of Police or Registrar, be held in private, and may be by way of affidavit [s 18D(3)].

How long does an NDIS Worker Clearance last for?

An NDIS worker check clearance generally last for 5 years [s 18P].

How long does an NDIS exclusion notice last?

An exclusion notice lasts for 5 years unless it has been issued to a disqualified person, in which case it is indefinite [s 18Q].

Can a person check whether a disability worker holds an NDIS worker clearance?

Both an NDIS employer, or a participant who engages or proposes to engage a person to do NDIS work, may request information about whether the person has an NDIS Worker Check clearance [s 18ZB].

The NDIS Worker Screening Database will hold a register of workers who have applied for an NDIS Worker Screening Check. Unregistered NDIS providers and self-managed NDIS participants must request access to the NDIS Worker Screening Database if they wish to check whether an NDIS worker has a clearance.

For further information about requesting access to the NDIS Worker Screening Database, visit the NDIS Quality and Safeguards Commission website (opens new window).

What if a person already has a disability services employment clearance?

If a person has already had a screening check conducted by the Department of Human Services Screening Unit in the last 3 years and they have been cleared to work with people with disability, then the clearance check will be taken to be an NDIS Worker clearance granted under Part 5A of the Disability Inclusion Act 2018 (SA). The recognition of a previous screening check allows for a period of transition between the previous and new process for screening for NDIS Worker Clearance checks.

    Criminal Records and Clearance Checks  :  Last Revised: Mon Feb 10th 2020
    The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.