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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.

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?), and 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.

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, 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.

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, at least temporarily, 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 [s 33A]. The maximum penalty for this offence is a fine of $5,000. However, the offence may be expiated for $315.

See Child Safety (Prohibited Persons) (Fees) Regulation 2019 (SA) for list of prescribed fees, or 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 personally on them [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?

Positions which are prescribed include [reg 6]:

  • every position in the public service administering the Child Safety (Prohibited Person) Act 2016 (SA) or the Children and Young People (Safety) Act 2017 (SA)
  • where 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 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].

Can I work whilst my application for working with children check is pending?

The Child Safety (Prohibited Persons) Regulations 2019 allow an exemption in specific circumstances for a person to work when their application for working with children check is pending [see reg 27].

This exemption will cease operation on 30 September 2020.

The criteria that must be met in order for the exemption to apply are:

  • the application for a working with children check has been made in accordance with the Act, but that working with children check has not yet been conducted; AND
  • the person applying for the check is a not a prohibited person under the Act; AND
  • the person is not presumed to pose an unacceptable risk to children under section 26 of the Act; AND
  • that the person is, while working with children pursuant to the exemption, supervised by a prescribed supervisor; AND
  • Pursuant to section 53(2)(a) of the Act, the employer of the person is exempt from the operation of sections 17 and 18 of the Act in respect of the person

For the purpose of the regulations, a prescribed supervisor is a person in relation to whom a working with children check (within the meaning of the Child Safety (Prohibited Persons) Act 2016) has been conducted within the preceding 5 years.

    Criminal Records and Clearance Checks  :  Last Revised: Mon Feb 10th 2020
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