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.
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.
Under section 16 of the Child Safety (Prohibited Persons) Act 2016 (SA), 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. 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 1 year.
The current working with children check scheme commenced on 1 July 2019. A person cannot legally work with children while waiting for a working with children check to be processed. However, a person may be permitted to continue working with children after the expiry of their existing working with children check. To continue working, the person must have reapplied for a working with children check before their check expired and must have obtained a working with children check in the previous 5 years [Child Safety (Prohibited Persons) Regulations 2019 (SA) reg 27(1)(a)]. If a person has not reapplied for a working with children check before theirs has expired, they may seek an exemption from the Registrar [reg 27(1)(b)]. People seeking to continue working on reapplication should check with their employer to confirm eligibility.
For more information about working with children checks, see the Working with Children Check Guidelines (July 2024) (PDF, 461KB), visit the Department of Human Services Screening Unit website or seek legal advice.
Under s 6(3) of the Child Safety (Prohibited Persons) Act 2016 (SA), a person will be taken to be working with children if they
A person is employed for the purposes of determining whether they are working with children even if they are [Child Safety (Prohibited Persons) Act 2016 (SA) s 7]
*Child-related work includes the following services and activities [s 6(1) and Child Safety (Prohibited Persons) Regulations 2019 (SA) reg 7]:
Child-related work does not include personal or domestic arrangements or services or activities where contact with children occurs incidentally [s 6(1)].
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 [Child Safety (Prohibited Persons) Regulations 2019 (SA) reg 7(6)].
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)].
Some people who work with children are not required to have a working with children check. They include:
In relation to the exclusion for parents and guardians, it is important to note that accommodation includes 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 is on the person claiming to be an excluded person to prove that they are an excluded person [s 9(6)].
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 even without applying for a working with children 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 1 year [s 15(3)].
What is a prescribed offence?
Section 5 defines prescribed offence for the purposes of the Child Safety (Prohibited Persons) Act 2016 (SA). It includes a range of criminal offences where the victim was a child, such as murder, manslaughter, kidnapping and unlawful child removal, rape and other sexual offences, incest, and child exploitation offences. It also includes a conspiracy or attempt to commit such offences, aiding or abetting such offences, and assault with the intent to commit such offences. For a complete list of prescribed offences, see Appendix 1 of the Working with Children Check Guidelines (July 2024) (PDF, 461KB).
Some offences are excluded from the definition of prescribed offence by regulation 5 of the Child Safety (Prohibited Persons) Regulations 2019 (SA). Certain sexual offences will not be prescribed offences if the victim consented to the conduct constituting the offence and either the victim was not less than:
Spent convictions are also excluded from the definition of 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)].
Working with children checks are conducted by the SA Department of Human Services Screening Unit. Once the Screening Unit receives an application, it will look at the assessable information relating to the applicant against the prescribed risk assessment criteria to determine whether or not the applicant poses an unacceptable risk to children [Child Safety (Prohibited Persons) Act 2016 (SA) s 26(1)].
A working with children check does not just involve a police check [s 25(2)]. The Screening Unit must determine whether or not the applicant 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)]. The current Working with Children Check Guidelines (July 2024) can be downloaded from the Department's website or by clicking here (PDF, 461KB). The Guidelines include a consideration of how the Screening Unit determines whether someone poses an unacceptable risk to children (see pages 16 - 18).
A working with children check may be used in relation to any child-related work even if it was applied for in relation to a particular position, service, activity or employer [s 26(6)].
An application for a working with children check 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 a person applies for a working with children check but, before the application is processed, becomes a prohibited person under the law of the Commonwealth or another State or Territory or is found guilty of a prescribed offence, the Unit need not conduct the working with children check [reg 16(3)].
The Screening Unit may refuse to consider an application if it has already conducted a working with children check 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 working with children check and a unique identifier (if they do not already have one) [s 27(4)].
The Unit must conduct a working with children check even if an application is withdrawn [s 28]. The Unit may also conduct a working with children check in relation to a person at any time on its own motion [s 30].
There is usually a fee payable on application for a working with children check.
Working with children checks are free for volunteers and foster carers. However, if the person uses the working with children check to work with children other than as a volunteer on 7 or more days of a calendar year, they must pay the prescribed fee within 28 days of commencing work [Child Safety (Prohibited Persons) Act 2016 (SA) s 33A]. It is an offence to breach this requirement, with a maximum fine of $5,000 (expiation fee $315).
For a list of the current fees, visit the Department of Human Services Fees website.
Assessable information is defined in section 8 of the Child Safety (Prohibited Persons) Act 2016 (SA) and may include information about:
It also includes 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].
A person applying for a working with children check will be asked to consent to the Screening Unit obtaining assessable information from government agencies, courts and other organisations, and the check will not proceed until consent is given (Working with Children Check Guidelines (July 2024) (PDF, 461KB) pages 5 - 6).
The Screening Unit is not required to assess all assessable information relating to a person [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].
Presumptive disqualification offences are declared under the Child Safety (Prohibited Persons) Regulations 2019 (SA). Under regulation 15A, they include a range of violent offences where the victim is an adult, such as murder, manslaughter, kidnapping, and sexual assault, and a number of other offences including where the victim is a child. They include a conspiracy or attempt to commit such offences, and aiding or abetting such offences. For a complete list of presumptive disqualification offences, see Appendix 2 of the Working with Children Check Guidelines (July 2024) (PDF, 461KB).
Importantly, a person who has been found guilty of a presumptive disqualification offence includes a person who has been charged with a prescribed offence (see Who is prohibited from working with children? for more information about prescribed offences) or a presumptive disqualification offence, where the charge has not yet been finally determined [s 26A(3)(b)].
A person who has been found guilty of a presumptive disqualification offence (within the meaning of s 26A(3)) is presumed to pose an unacceptable risk to children [s 26A(1)(a)]. The Screening Unit need not consider or assess any further information in relation to the application [s 26A(1)(b)].
The Screening Unit must determine that such a person is prohibited from working with children unless the person can satisfy the Unit under s 26A(1)(c) that
A person who the Screening Unit identifies as having been found guilty of a presumptive disqualification offence will be invited to make a submission to the Unit that addresses one or both of these matters.
A person seeking to argue that the circumstances of the presumptive disqualification offence are such that it should be disregarded [s 26A(1)(c)(i)] should consider addressing the following in their submission:
A person seeking to argue that exceptional circumstances exist such that they do not appear to, or no longer appear to, pose an unacceptable risk to children [s 26A(1)(c)(ii)] should consider addressing the following in their submission:
The Working with Children Check Guidelines (July 2024) (PDF, 461KB) provide further guidance to applicants who have been found guilty of a presumptive disqualification offence (see pages 10 to 14).
Under regulation 10(1)(a) and (b) of the Child Safety (Prohibited Persons) Regulations 2019 (SA), the Screening Unit must:
This does not apply where [reg 10(2)]:
If the Unit prohibits a person from working with children, the Unit must provide reasons in accordance with the Working with Children Check Guidelines (July 2024) (PDF, 461KB) [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.
Issuing a notice
If the Department of Human Services Screening Unit determines, under s 26(5), 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 s 51 of the Child Safety (Prohibited Persons) Act 2016 (SA) [see s 32(1) and reg 18(1)(b)].
In issuing a prohibition notice, the Unit must comply with the guidelines published in the Gazette [see reg 18(1)(c), s 4 and the Working with Children Check Guidelines (July 2024) (PDF, 461KB)]. The notice must include [s 32(2)(b), (c) and reg 18(2)]:
If the Unit's decision to issue a prohibition notice is based on information classified by the Commissioner of Police as criminal intelligence, the Unit does not need to 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)].
A prohibition notice will remain in force indefinitely, unless it is revoked [s 32(3)].
Revoking a notice
A prohibited person may apply to the Screening Unit to have their prohibition notice revoked [s 33]. They will only succeed if they can satisfy the Unit, under s 33(1)(b), that:
The Working with Children Check Guidelines (July 2024) (PDF, 461KB) explain what might constitute "fresh" and "compelling" assessable information and provide examples (see pages 33 and 34).
The Unit may also revoke a prohibition notice on its own motion.
The Screening Unit may only revoke a prohibition notice if their decision is the only reason the person is a prohibited person [s 33(1)(a)]. If a person is prohibited under a law of the Commonwealth or another State or Territory, or because they have been found guilty of a prescribed offence, the Unit cannot revoke their prohibition notice.
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)].
The Screening Unit may refuse to consider an application to revoke a prohibition notice if an application to revoke has been considered within the previous 5 years [s 33(3)].
Reviews by the South Australian Civil and Administrative Tribunal
A prohibited person may apply to SACAT for a review of the decision to issue or revoke a prohibition notice [s 43]. An application for review must be made within 14 days of receiving notice of the Unit’s decision [s 43(2)]. SACAT will only allow this time to be extended if satisfied that special circumstances exist and another party will not be unreasonably disadvantaged by the delay [s 43(3)].
A fee is usually payable - see SACAT Fees.
For more information about applying to SACAT for a review of a decision to issue or revoke a prohibition notice, read the SACAT Fact Sheet - Working with Children Checks: Applying to SACAT to review a decision of the Central Assessment Unit (PDF, 270KB). The Legal Services Commission can also provide free legal advice. Call the legal helpline on 1300 366 424.
A person with a unique identifier must notify the Screening Unit if [s 40(1)]:
It is an offence to 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)].
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 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 is a prescribed position?
According to s 5 of the Child Safety (Prohibited Persons) Act 2016 (SA) and regulation 6 of the Child Safety (Prohibited Persons) Regulations 2019 (SA), prescribed positions include:
An employer must ensure that every person they employ in a prescribed position has a working with children check every 5 years [s 18].
The Working with Children Check Guidelines (July 2024) (PDF, 461KB) emphasise that employers have broader obligations to ensure their workplace is safe for children. Ensuring an employee working in a prescribed position has a current working with children check does not by itself discharge an employer's duty to determine that employee's suitability to work with children. Employers should conduct a range of checks and establish and maintain strategies to ensure child safe environments.
An employer of a person in a prescribed position must notify the Screening Unit if they become aware:
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 a fine of $25,000 [s 19(3)].
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) [Child Safety (Prohibited Persons) Act 2016 (SA) s 44(1)]. .
It is an offence, with a maximum penalty of $10,000, for the person performing the child-related work to refuse or fail to comply with the request [s 44(2)]. A person can comply with a request in accordance with a scheme set out in the regulations.
Anyone may inspect the Screening Unit's records to check whether someone is prohibited from working with children and 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)].
A parent may choose to simply ask a person who is working with their child whether they have a current working with children check. It is an offence for a person to falsely represent that they have had a working with children check in the last 5 years or that they are not a prohibited person. The maximum penalty is a fine of $50,000 or imprisonment for 1 year [s 45].
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.
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:
[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:
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)].
Under the Disability Inclusion Act 2018, a person is prohibited from working with people with disability if:
[s 21]
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:
[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:
[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:
The screening unit may issue an NDIS worker check exclusion notice if:
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:
[s 18K(1)]
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:
A full list of disqualification offences is listed in Schedule 1 of the Disability Inclusion (NDIS Worker Check) Regulations 2020 (opens new window).
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:
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).
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:
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]:
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:
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)].
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:
[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].
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).
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.
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