Screening checks (SA) - A guide for South Australian community organisations Dec 2020 - Not-for-profit Law
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Screening checks (SA) A guide for South Australian community organisations Dec 2020
Screening checks (SA) | 2020 2
Contents
Introduction 4
Part 1 7
Legal obligations for Working with Children Checks ................................................................ 8
Is a child-related employment screening still valid? .......................................................... 8
When are WWC Checks required by law? ........................................................................ 8
What is a prescribed position? ..................................................................................... 9
What is child-related work? .......................................................................................... 9
Who must undergo a WWC Check? ............................................................................. 9
WWC Check screening exemptions ................................................................................ 10
Current legislation ...................................................................................................... 10
Summary of organisation's current WWC Check obligations .......................................... 11
Part 2 12
WWC Check applications ........................................................................................................... 13
How can employees or volunteers apply for a WWC Check? ......................................... 13
Can a person begin child-related work once their application for a WWC Check has
been submitted? ......................................................................................................... 13
How much does a child-related employment screening application cost? .................. 14
Should organisations pay the costs of WWC Checks for employees or volunteers? .. 14
What if a new employee or volunteer already has a WWC Check? ................................ 14
What happens once a WWC Check application has been lodged? ................................ 14
What happens if an applicant does not pass the screening? .......................................... 14
Part 3 16
What does a WWC Check do? ................................................................................................... 17
What is assessed in a WWC Check? .............................................................................. 17
Continuous monitoring of WWC Checks ......................................................................... 18
Are there limits to what WWC Checks can achieve? ...................................................... 18
Part 4 19
Police Checks ............................................................................................................................. 20
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening checks (SA) | 2020 3
Does a WWC Check differ from Police checks? ............................................................. 20
Part 5 22
NDIS Worker Screening Checks ................................................................................................ 23
Transition period for NDIS Worker Screening Checks ................................................ 23
Risk assessed roles.................................................................................................... 24
What does the NDIS Worker Screening Check include? ............................................ 24
NDIS provider record keeping requirements ............................................................... 25
Exceptions .................................................................................................................. 25
Interstate workers ....................................................................................................... 26
Part 6 27
Other checks ............................................................................................................................... 28
Other types of checks in South Australia ........................................................................ 28
Aged care sector employment checks ........................................................................ 28
Disability services sector employment checks ............................................................ 28
Vulnerable person-related employment checks .......................................................... 29
General employment probity checks .......................................................................... 29
Discretionary background checks ................................................................................... 29
Screening for interstate employees and volunteers ........................................................ 30
WWC Checks ............................................................................................................. 30
Police Checks ............................................................................................................. 30
National child safety reforms and screening ................................................................... 30
Resources ................................................................................................................................... 32Screening checks (SA) | 2020 4 Introduction
Screening checks (SA) | 2020 5
Introduction
This part:
► introduces the reasons for conducting some level of screening for volunteers and
employees
► refers to child safety law reforms relevant to screening
Note
Significant changes to the South Australian law on checks for people who work with children
were introduced from 1 July 2019 through the Child Safety (Prohibited Persons) Act 2016 (the
Child Safety Act).
The aim of the changes was to minimise the risk to children posed by people who work with
them by providing a framework which prohibits people who pose an unacceptable risk to
children from working with them.
These changes were in response to a final report of the South Australia Child Protection
Systems Royal Commission (also called the Nyland Commission), published in August 2016.
As well as changes through the Child Safety Act, parliament also passed the Children and
Young People (Safety) Act 2017, which covers children and young people in care and related
matters (commenced on 22 October 2018).
It’s important that your organisation screens and inducts volunteers in a thorough and systematic
way. Certain background screening checks are required by law (under legislation or contract) and
others are discretionary.
Even where there is no legislative or contractual requirement that checks be performed, organisations
ought to conduct some level of screening for volunteers and employees. This is because all organisations
have a responsibility to ensure they maintain a safe environment for their employees, volunteers and
clients. Due to this overarching duty of care, organisations should always try to be informed about the
individuals they select as their representatives.
Consider whether the volunteer or employee will have unsupervised access to money or property, contact
with vulnerable clients or children, access to sensitive information or whether they will be driving. This may
influence the types of checks your organisation requires in order to minimise risks associated with your
volunteers and employees.
© 2020 Justice Connect. This information was last updated in December 2020 and is not legal advice; full disclaimer and copyright notice at www.nfplaw.org.au/disclaimer.Screening checks (SA) | 2020 6 Example A volunteer is sent to an elderly client’s home to assist with general household duties and provide companionship. As the volunteer is not engaged in 'child-related' work you don’t ask them to obtain a child-related employment screening clearance. The volunteer seems trustworthy and the organisation decides not to go ahead with any other screening checks, including a Police Check. The volunteer steals from the client and it turns out that they have a string of theft and burglary offences. You send another volunteer to your client’s home as soon as you find out. The client has a health incident and needs urgent medical attention. The volunteer freezes as they have not been trained in what to do in this situation. The volunteer is traumatised by this incident. Your organisation could be in breach of its duties to both the volunteer and client. Tip It may be challenging for some organisations to appropriately screen spontaneous volunteers, especially where organisations are already managing significant workloads due to an emergency or other incident. Your organisation may consider having a database of registered volunteers to call upon that have undertaken appropriate screening, induction and training, and utilising external resources, for example, Volunteering SA&NT’s online tools or the South Australian Government’s Office for Volunteers website. Note Currently, WWC Checks operate at a state or territory level. This means that a WWC Check is only valid for work in the state or territory in which it is issued. There are certain allowances for interstate volunteers (in some states and territories). The Royal Commission into Institutional Responses to Child Sexual Abuse’s 2015 report on Working with Children Checks (WWCC Report) contains recommendations for the implementation of a nationally-consistent scheme.
Part 1 Legal obligations for Working with Children Checks
Screening checks (SA) | 2020 8 Legal obligations for Working with Children Checks This part covers: ► is a child related employment screening still valid? ► when is a WWC Check screening required by law? ► exemptions from the requirement to be screened ► summary of an organisation's Working with Children obligations Whenever your not-for-profit organisation is recruiting employees or volunteers or assigning new responsibilities, it’s important to conduct appropriate screening procedures. This current WWC Checks legislation in South Australia is the Children and Young People (Safety) Act 2017 (SA) (Children and Young People Act) and the Child Safety (Prohibited Persons) Act 2016 (the Child Safety Act). Under previous legislation in South Australia, screening checks were called ‘child- related employment screenings’. The Children and Young People Act imposes an obligation on certain organisations to be safe (which in turn means undertaking checks). The Child Safety Act and associated regulations govern the undertaking of checks. The purpose of the Child Safety Act is to ensure that a person who is assessed as being of risk to the safety of children will be prohibited from working or volunteering with them. It’s an offence for an organisation to engage a person in a work or volunteer role where this is the case. In most circumstances, WWC Checks must be undertaken according to law. Even when not required by law, there may be circumstances where an organisation decides that a WWC Check is required to work or volunteer in particular roles. Is a child-related employment screening still valid? Before 1 July 2019, a child-related employment screening was required by law to assess whether a potential employee or volunteer could pose a risk to the safety of children. These checks are valid for three years. A child-related employment screening check issued by the Department of Human Services (DHS) Screening Unit will be recognised as a WWC Check until it expires. Once it expires, a WWC Check must be obtained instead. You can no longer apply for a child-related employment screening. When are WWC Checks required by law? In South Australia, most people who work with children are required to undergo a WWC check, which is conducted by South Australia's DHS Screening Unit. If your organisation undertakes child-related work then you should carefully consider whether volunteers must apply for WWC Check (unless they have already been screened) before starting to work with your organisation. An employee or volunteer who works in a ‘prescribed position’ may require a WWC Check.
Screening checks (SA) | 2020 9
What is a prescribed position?
A ‘prescribed position’ means a position in which a person works, or is likely to work, with children, or any
other position prescribed by the Child Safety (Prohibited Persons) Regulations 2019 (the Child Safety
Regulations). This includes a person who provides a service or undertakes an activity that is ‘child-related
work’ in the course of their employment (employment includes work as a volunteer).
A 'child' is defined in section 16 of the Children and Young People Act as any person under 18 years old.
What is child-related work?
The following services or activities are child-related work:
• 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 services prescribed by the regulations (there are no other services prescribed as at the date of
writing)
Child-related work doesn’t include personal or domestic arrangements, or any other service or activity in
which contact with children occurs incidentally or would not reasonably be expected to occur.
The Children and Young People Act requires organisations providing the above services or activities
(Prescribed Organisations), to ensure the environment is safe for children. The Children and Young
People Act and the Children and Young People (Safety) Regulations 2017 (the Children and Young
People Regulations) place an obligation on a Prescribed Organisation to prepare or adopt policies and
procedures that:
• ensure that the requirements under Chapter 5 Part 1 (which deal with reporting and responding to a
child or young person who may be at risk) are satisfied (ie. that reasonable suspicions that a child or
young person is, or may be at risk are reported to, amongst others, the Child Abuse Report Line on 13
14 78, as soon as practicable after forming the suspicion)
• are designed to ensure that safe environments for children and young people are established and
maintained in respect of the services or activities provided or undertaken by the Prescribed Organisation
• ensure the Prescribed Organisation complies with any code of conduct or principles of good practice for
caring for, or working with, children and young people developed by the Chief Executive administering
the Act, and
• ensure the Prescribed Organisation meets standards of care for ensuring the safety of children and
young people as defined by the Chief Executive administering the Act
Who must undergo a WWC Check?
A person can’t work with children (ie. in a prescribed position) unless they have had a WWC Check within
the last five years.
An employer must not employ a person in a prescribed position unless they have verified, in accordance
with the Child Safety Regulations, that a WWC Check has been conducted in the preceding five years, and
that the person is not prohibited from working with children.
It’s an offence for a person to not get a WWC Check that is suitable for their volunteer or paid employment.Screening checks (SA) | 2020 10
Related resource
For more information on the child protection framework in South Australia go to the Child
Protection website. The website also has information on establishing child safe environment
policies and procedures.
WWC Check screening exemptions
Not everyone who encounters children as part of their work or volunteering activities needs to be screened.
Current legislation
Under the Child Safety Act, the following people will not, unless they are a prohibited person or provide
certain education or early childhood education services, need a WWC Check carried out:
• a person under 14 years of age
• a person who undertakes work in the same capacity as a child (unless the work is child-related work)
(for example, if an adult works alongside a child at a fast food outlet, they do not need a WWC Check
because working at a fast food outlet is not child-related work)
• a person who employs a child in a workplace, or who supervises an employed child, where the work
undertaken by the child is not child-related work
• a member of South Australia Police or the Australian Federal Police
• a person who believes on reasonable grounds that they will not work with children for more than seven
days (whether consecutive or not) in a calendar year (unless the work includes an overnight excursion or
stay or close personal contact with children with disability)
• a person who, at the time of engaging in particular child-related work on a particular day in a calendar
year, had worked with children for less than seven days (whether consecutive or not) in that year (unless
the work includes an overnight excursion or stay or close personal contact with children with disability)
• a person who normally lives outside of South Australia and holds a valid equivalent check from their
home state or territory, as long as the child-related work occurs in the course of an organised event and
does not exceed 10 consecutive days
• a person who is a parent or guardian of a child and is volunteering in child-related work that involves
their own child (unless the work includes accommodation and residential services or other children or
close personal contact with other children)
These exclusions only apply if the person:
• is not prohibited from working with children, and
• has never been prohibited from working with children
Tip
Child-related work doesn’t include a service or activity that is provided under an arrangement
for a personal or domestic purpose. Therefore, a grandparent who is caring for a grandchild
under a domestic arrange is not required to get a WWC Check even though they may not be
an ‘excluded person’.Screening checks (SA) | 2020 11
Summary of organisation's current WWC Check obligations
An organisation that undertakes or supervises 'child-related work' must comply with the Child Safety Act.
This includes ensuring that:
• employees (including contractors or subcontractors) and volunteers who are in prescribed positions
have had a WWC Check in the past five years before starting child-related work
• employees or volunteers renew their WWC Check every five years
• employees and volunteers don’t continue to work in child-related work if their WWC Check has expired,
and
• even when screening is not mandated by law, deciding what form of screening should be undertaken
based on the inherent duties of the role
Tip
If your organisation currently doesn’t undertake child-related work as outlined above, but
wants to do this work in the future, you can consider requiring volunteers and employees to
undertake WWC Checks when they join your organisation. However, checks should only be
undertaken that are relevant to the role. Decisions made on the results of checks not relevant
to a role could be challenged by an applicant.Part 2 Working with Children Check applications
Screening checks (SA) | 2020 13
Working with Children Check
applications
This part covers:
► applying for a WWC Check
► what if a new employee or volunteer has already undergone a WWC Check?
► what happens once an application has been lodged?
► what happens if an applicant does not pass a screening?
Applying for and maintaining a WWC Check takes a few steps by both the applicant and the
organisation.
How can employees or volunteers apply for a WWC Check?
In South Australia the application process is generally begun by the employer organisation (or volunteering
organisation). The standard process is for the organisation to register online with the DHS Screening Unit.
Once the organisation is registered, it initiates each screening application on behalf of individual applicants.
The applicant will then receive an email from the DHS screening unit (with a login and password details)
and then completes their own application online.
As part of completing the application process (begun by the employer or volunteer organisation) the
prospective employee or volunteer (the applicant) will provide the necessary proof of identity and consent to
the screening procedure.
Note that applications can only be made in hard copy form in exceptional circumstances, for example if the
applicant has no internet access.
Related resource
The DHS Screening Unit’s website has useful information about applying for a WWC Check as
both an organisation and individual.
Can a person begin child-related work once their application for a WWC
Check has been submitted?
Since 30 September 2020, a person whose application for a WWC Check is pending can’t work with
children in any circumstance. This is different to some other Australian states and is strictly applied.Screening checks (SA) | 2020 14
How much does a child-related employment screening application
cost?
The cost of a WWC Check is free for volunteers and $115.50 (GST inclusive) for child-related employment
(as at October 2020).
Should organisations pay the costs of WWC Checks for employees or
volunteers?
There is no legal requirement for an organisation to cover the costs of an employee or volunteer
undertaking a WWC Check. However, some organisations choose to reimburse applicants who will be
working or volunteering with the organisation. The online process caters for both options – either the
organisation or individual applicant pays.
What if a new employee or volunteer already has a WWC Check?
Employees or volunteers in South Australia with an existing WWC Check from previous work or
volunteering can rely on this clearance while it remains valid (for a period of five years). If the person still
has a valid child-related employment screening (valid for a period of three years), this can also be relied
upon until expiry, at which point they must obtain a WWC Check.
In summary, a check is 'portable' between jobs (paid and unpaid). However, organisations must still satisfy
themselves of the applicant's identity which will usually involve carrying out other screening processes,
including reference checks, before offering an applicant a role working with children.
What happens once a WWC Check application has been lodged?
The DHS Screening Unit normally takes approximately three weeks to complete a WWC Check application.
If a relevant criminal record (or other relevant data) requires further assessment, the completion time can
be more than three weeks (this will depend on the relevance, complexity and amount of information to be
assessed).
Once the assessment is complete, the individual and the requesting organisation will be notified of the
outcome by email. The Screening Unit no longer issues certificates, but a person can inspect their record at
any time.
What happens if an applicant does not pass the screening?
If the DHS Screening Unit determines that a person is to be prohibited from working with children, it will
issue a prohibition notice by serving it personally on the person.
A person who is issued with prohibition notice is prohibited from working with children.
It’s an offence for:
• such a person to work with children (the maximum penalty being $50,000 or imprisonment for one year),
and
• an employer to employ or continue to employ a prohibited person in a prescribed position (maximum
penalty being $50,000 or imprisonment for one year for a natural person, or $120,000 for a body
corporate)
An applicant has the legal right to challenge the DHS Screening Unit's decision to issue a prohibition notice.
An applicant who has been issued a prohibition notice may also apply to the Screening Unit to have the
prohibition notice revoked. The Screening Unit will look at information collected for the initial assessment,
and any new or additional information provided with the application for review. The person can also apply
directly to the South Australian Civil and Administrative Tribunal (SACAT) to review the decision within 14
days after the applicant receives notice of the decision.
The Screening Unit will not accept applications for review without the applicant providing a substantive
reason for doing so.
Substantive reasons for a request for a review may include, but are not limited to:
• the applicant can provide new or additional relevant information to the Screening Unit that might affect
the outcome of the assessmentScreening checks (SA) | 2020 15
• the applicant believes that information they provided as part of their initial assessment was not fully or
properly taken into account
• the applicant demonstrates that information was considered as part of their initial assessment which the
Screening Unit was not permitted to access or incorporate in the assessment, or
• the applicant believes that irrelevant information was considered by the Screening Unit as part of the
initial assessmentPart 3 What does a Working with Children Check do?
Screening checks (SA) | 2020 17
What does a Working with Children
Check do?
This part covers:
► what does a WWC Check take into account?
► ongoing monitoring
► are there limits to what a WWC Check can achieve?
The WWC Check is a unique type of check, distinguished from Police Checks by the different
registers it checks.
Understanding how it works will help your organisation know what role they should play in complying with
the Child Safety Act (if required) and your organisation's risk management strategy.
What is assessed in a WWC Check?
Once a WWC Check application has been submitted the Screening Unit makes a balanced assessment of:
• national criminal history record
• information from South Australian government databases, such as SA child protection records from
Families SA (Department of Education and Child Development) and Care Concern investigations (by
DHS or DECD) into the welfare of children in foster or state care
• publicly available information from professional registration bodies relating to persons disciplined or
precluded from working with children or vulnerable people
• information from South Australian police, courts, and prosecuting authorities including information about
charges for offences alleged to have been committed (regardless of the outcome of those charges)
• expanded criminal history information from other Australian police jurisdictions, and
• any declarations made by the applicant in response to questions in the 'declaration' section of their
screening application form
Based on the above information, DHS also considers other factors, including:
• the nature of and circumstances surrounding the offence
• the presence of a pattern of offending (if any)
• time elapsed since the offence was committed
• severity of a court-imposed penalty
• the age and vulnerability of the victim
• the relationship to the victim and age difference
• applicant's own age at the time of the offence
• whether a child played a part in committing the offence (either directly or indirectly)
• relevance of the offence to the role of the applicant, and
• the applicant's conduct since the time of the offenceScreening checks (SA) | 2020 18
The DHS Screening Unit has published Working with Children Check Guidelines which provide detail about
the risk assessment process and what information is taken into account in assessing an application and
what prescribed offences will lead to the issuing of a prohibition notice.
Continuous monitoring of WWC Checks
A WWC Check in South Australia is valid for five years but is subject to continuous monitoring by the
Screening Unit.
This involves the Screening Unit receiving information from a range of databases, including SA Police and
the Department for Child Protection, which is automatically searched for any new information relevant to a
person’s check status. If the new information results in a person’s check status being changed or revoked,
the person and organisation will be notified in writing.
Organisations can also use their standard employment terms and conditions to require that staff notify the
employer if they are charged with certain offences or face any disciplinary action arising from their previous
employment or community service.
Taking the following steps may help your organisation keep up to date with team members and their WWC
Check status:
• keep copies of records relating to WWC Checks, including emails and other correspondence received
from the DHS Screening Unit about WWC Check applications and outcomes
• keep a record of each employee and volunteer WWC Check status, including their Screening reference
number and the expiry date of their check
• ensure information is filed in a safe, secure place in accordance with the following principles:
– ensure stored information is accurate, complete and up to date
– protect the information from misuse, loss, unauthorised access, modification or disclosure (including
by allocating files identification systems to prevent files being misplaced)
– have a clearly expressed policy available upon request detailing the management of personal
information by your organisation, and
– allow people to access their own information and to correct inaccuracies
• assign responsibility for monitoring your WWC Check register to ensure that it is up-to-date, and
• set up systems to ensure your organisation keeps track of when current WWC Checks will expire
Your organisation is also able to check the status of a person’s WWC Check using the ‘Verify a WWCC
Check’ function on the Screening Unit’s website.
Are there limits to what WWC Checks can achieve?
Remember that screening checks are only one way of reducing the risk of recruiting or associating with
individuals who may be unsuitable for child-related work. No background check by itself can guarantee a
person's suitability, and organisations should have internal policies and procedures to ensure the safety of
all those who interact with the organisation, particularly those in a position of vulnerability, such as children.Part 4 Police Checks
Screening checks (SA) | 2020 20
Police Checks
This part covers:
► an overview of Police Checks
► the differences between WWC Checks and Police Checks
The WWC Check is an important check, but it is not the only check your organisation can
undertake.
Even if you must undertake the WWC Check, you should consider whether any of the following checks
would be appropriate to help you comply with the Children and Young People Act or your organisation's risk
management strategy.
Does a WWC Check differ from Police checks?
Yes. If a volunteer or employee is required to undertake a WWC Check, it will not matter whether they have
recently had a Police Check (sometimes called a National Police check or Criminal Record Check) as these
two screening procedures are established for different purposes.
WWC Checks focus on specific offences (ie. those that may impact on the safety of children) and includes
information held on South Australian government databases, information from South Australian police,
courts and prosecuting authorities, and publicly available information from professional registration bodies.
Your organisation may wish to conduct both WWC Checks and Police Checks depending on the nature of
the work being conducted by your staff or volunteers. For example, not all criminal offences will be relevant
for WWC Checks, only those that the DHS considers to pose a risk to children. Previous convictions such
as traffic offences or thefts may not be considered in a WWC Check, but may still be relevant to your
organisation. A Police Check allows an organisation to be aware of all (releasable) previous convictions –
child related or not – and this may be appropriate if you are seeking an employee or volunteer who, for
example, may be handling money or driving clients between locations.
Caution
If you decide that applicants are required to undergo a Police Check before recruitment, you
must not refuse an applicant simply because he or she has a prior conviction revealed for an
offence that has no relevance to the available position. There are legal protections against
discrimination on the basis of criminal record. However, your organisation has obligations to
create a safe and effective environment, and you can refuse an applicant on the basis of a
criminal past when you believe that the prior offence prevents the applicant from performing
the ‘inherent requirements’ of the position. See the Australian Human Rights Commission
website for more information.Screening checks (SA) | 2020 21
How do WWC Checks and Police Checks differ?
WWC Check (SA) Police Checks
Who conducts The application is submitted to the DHS The check is submitted to the SA Police by the
the check? Screening Unit by the individual after the individual or by an organisation on their behalf
process is commenced by the employer (with consent).
organisation.
Organisations may also engage a third party
agency to manage the process.
What is National criminal records (across all states and National criminal records.
checked? territories), professional conduct reports and a
range of other relevant information far broader
in scope than a Police Check.
What is Serious criminal charges, offences, findings of Police make an assessment that takes into
revealed by the guilt and professional conduct reports that may account the category and purpose of the check
checks? be relevant to the safety of children, such as and any relevant legislation and information
serious sexual, violent or drug crimes (it may release policies. Police then determine the
not reveal offences such as theft or property details they will release to the individual or
fraud). organisation requesting the check.
Spent convictions can be included in WWC The details released may include court
Checks. outcomes with a finding of guilt (including
those 'without conviction'), good behaviour
bonds or other court orders, outstanding
charges and matters awaiting hearing, and
certain (criminal) traffic offences, whether
child-related or not.
Spent convictions do not show on a Police
Check.
What is the The applicant and organisation will be notified There is no pass or fail – a list of court
outcome? by email of the outcome of the WWC Check. If outcomes with a finding of guilt is produced
the Screening Unit determines that a person is from the national criminal record.
to be prohibited from working with children, it
will issue a prohibition notice to the person. It is up to the organisation to assess whether
That person is then prohibited from working or not any of the listed outcomes may impact
with children, regardless of the organisation’s on the work of the volunteer.
views.
How long is it Five years. It is current only at the time of the check.
valid for?
Is it an Yes – over the five years there is a 'rolling No – it is a 'point in time' check and will only list
ongoing check' system. The individual must notify the the offences at the time of the check.
check? assessment unit of certain information and the
assessment unit must also take reasonable
steps to notify organisations of certain
changes.
Is the check Yes – during the five year period of the check's No – organisations should require a new
transferable? validity. check, even if someone had a check
completed recently – as an organisation needs
to be sure that all relevant matters have been
disclosed by the police.Screening checks (SA) | 2020 22 Part 5 NDIS Worker Screening Checks
Screening checks (SA) | 2020 23
NDIS Worker Screening Checks
This part covers:
► Worker Screening Checks for NDIS providers
► transition period for NDIS Worker Screening Checks
► what does the NDIS Worker Screening Check include?
► record keeping requirements for NDIS providers
► exemptions from NDIS Worker Screening Checks
The NDIS Worker Screening Check is an assessment of whether a person who works, or seeks to work,
with people with a disability poses a risk to them. The assessment determines whether a person is cleared
or excluded from working in certain roles with people with a disability.
The requirements relating to Worker Screening Checks for registered NDIS providers are set out in the
National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (the Practice
Standards). Registered NDIS providers are responsible for ensuring that their workers have the necessary
clearances so that the Practice Standards are met.
On 1 February 2021, states and territories will start implementing the new nationalised NDIS Worker
Screening Checks as part of a uniform national approach to worker screening.
A NDIS Worker Screening Database will also be rolled out nationally, which will have a register of cleared
and excluded workers from all states and territories.
Currently states and territories have transitional and special arrangements in place which specify the
alternative checks and clearances that are acceptable before the national NDIS Worker Screening Check is
rolled out.
Transition period for NDIS Worker Screening Checks
As the transitional and special arrangements differ between the states and territories, if a worker has an
acceptable check in one state or territory, this is not portable to another state or territory. This means that
workers of registered NDIS providers delivering services and supports to people with disability in a number
of states or territories must have an acceptable check in each state or territory in which they work.
South Australia began a transition period on 1 July 2019.
Acceptable checks – South Australia
Currently, workers engaged in a risk assessed role in South Australia must meet the following requirements
for an acceptable check:
• the role does not involve child-related work and the person holds a valid DHS disability services
employment check,
• the person has a valid DHS child-related employment screening (and there has been no finding that the
person is not cleared for child-related employment or disability services employment), or
• the person has had a WWC Check and is not prohibited from working with children (and there has been
no finding that the person is not cleared for disability services employment)Screening checks (SA) | 2020 24
During the transition period (due to expire on 31 January 2021), all registered NDIS providers delivering
supports and services in South Australia can rely on the above requirements as an acceptable check to
work in a risk assessed role for a registered NDIS provider.
From 1 February 2021, workers delivering NDIS support and services without a valid check will be required
to have a clearance issued under the new NDIS Worker Screening Check arrangements.
Risk assessed roles
Registered NDIS providers are responsible for identifying which roles are risk assessed roles, and making
sure that all workers in these roles have an NDIS Worker Screening Clearance or an acceptable check
under the transitional and special arrangements.
Under the Practice Standards, workers may only be engaged in a ‘risk assessed role’ if the worker has a
clearance, subject to the exceptions discussed below.
A risk assessed role includes:
• a ‘key personnel role of a person or an entity’ as defined in s 11A of the National Disability Insurance
Scheme Act 2013 (for example, a CEO, board member or other key personnel)
• a role for which the normal duties include the direct delivery of specified supports or services to a person
with a disability (see link for list of specified services and supports), and
• a role for which the normal duties are likely to require ‘more than incidental contact’ with people with
disability, which includes:
– physically touching a person with disability
– building rapport with a person with disability as an integral and ordinary part of the performance of
normal 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
Example
Lee works for a mobility equipment company that is a registered NDIS provider and delivers
mobility equipment to the homes of people with a disability. Lee provides training, support and
instructions to the customers as a standard part of his role. Lee’s registered NDIS provider will
need to ensure Lee has a Worker Screening clearance (or an acceptable check under the
transitional and special arrangements, explained below) as the nature of Lee’s contact with the
customer is likely to lead to Lee building rapport with the customer.
What does the NDIS Worker Screening Check include?
The NDIS Worker Screening Check will be conducted by NDIS worker screening units. The NDIS worker
screening unit makes the decision about whether a person is cleared, excluded or on an interim bar (in this
case further information will be required to determine whether the person will be cleared or excluded).
Registered NDIS providers will need to ensure they only engage workers who have a cleared status. The
NDIS Worker Screening Check will enable registered NDIS providers to engage a worker with a valid
clearance from any state or territory to deliver NDIS support and services in a risk assessed role.
The new NDIS Worker Screening Check will take into account:
• any police or government information (including convictions, current and pending charges)
• apprehended violence orders
• child protection information (included child protection orders)
• workplace misconduct (complaints or incident reporting)
• international police check (for persons who have worked overseas)Screening checks (SA) | 2020 25
The check will then be submitted to the NDIS Worker Screening Database run by the NDIS Commission.
NDIS providers and individuals will need to apply to the NDIS Commission to access the information stored
on the database.
NDIS provider record keeping requirements
For each risk assessed role, registered NDIS providers are required to document:
• the title or other organisational identifier for the role
• the paragraph or paragraphs of the definition of risk assessed role (as contained in the Practice
Standards) that applies to the role
• a description of the role, and
• the date the role was assessed and the name and title of the person who made the assessment
When a new risk assessed role is identified, the written list of roles must be updated within 20 business
days of the identification or review of the risk assessed role.
For each risk assessed worker, NDIS providers are required to document:
• the full name, date of birth and address of the person
• the risk assessed role or roles in which the person engages
• if the worker may engage in a risk assessed role without an NDIS Worker Screening Clearance:
– the basis on which they may do so
– the start and end date of the period in which the exemption that allows them to work in a risk
engaged role applies
– the name of the person who supervises the worker during this period
• the worker’s NDIS Worker Screening Check application reference number
• the worker’s NDIS Worker Screening Check outcome expiry date
• whether the worker’s NDIS Worker Screening Clearance is subject to any decision which has the effect
that the registered NDIS provider may not allow the worker to engage in a risk assessed role, and the
nature of any such decision (for example, interim bar, suspension, exclusion)
• records relating to an interim bar, a suspension, an exclusion, or any action taken by the provider in
relation to these kinds of decisions in relation to any worker and
• allegations of misconduct against a worker with a check and the action taken by the registered NDIS
provider in response to that allegation
A record must be kept for seven years from the date the record was made.
Exceptions
A registered NDIS provider may engage a person in a risk assessed role who does not have an NDIS
Worker Screening Clearance if:
• the registered NDIS provider is subject to the transitional and special arrangements and is complying
with those arrangements
• the person is a school student on a formal work experience placement, provided the student is directly
supervised by another worker who has an NDIS Worker Screening clearance or acceptable check under
the transitional and special arrangements
• in some circumstances, the person has submitted an application for an NDIS Worker Screening Check,
provided the worker is ‘in the process of obtaining a clearance’ as defined by the Practice Standards. In
these circumstances, the registered NDIS provider must ensure that the worker is:
– appropriately supervised by a person with an NDIS worker screening clearance, and
– the NDIS provider implements a risk management plan in line with the requirements in the Practice
Standards.
In South Australia, if you are a worker for a registered NDIS provider in a risk assessed role and hold an
acceptable check before 31 January 2021, the check will be recognised until the check expires.Screening checks (SA) | 2020 26
Interstate workers
Until the NDIS Worker Screening Check takes effect on 1 February 2021, a registered NDIS provider needs
to ensure that all workers who are required to work interstate have an acceptable check in each state or
territory where the worker is engaged in a risk assessed role to provide NDIS support and services.
Tip
Visit the NDIS Commission website to ensure your organisation is compliant with the
Worker screening transitional and special arrangements.Part 6 Other checks
Screening checks (SA) | 2020 28 Other checks This part covers: ► other types of checks in South Australia ► other discretionary background checks ► managing volunteers and employees in or from other states and territories ► child safety law reform relating to background checks Other types of checks in South Australia Apart from WWC Checks, there are four other types of checks on behalf of employer organisations and those engaging volunteers: • aged care sector • disability services sector • vulnerable person employment, and • general employment probity For more information on the other types of screening, visit the DHS website. Aged care sector employment checks This check involves an assessment of a person's criminal conviction history to decide if they pose a risk of harm if engaged for employment or volunteering activities, specifically with Commonwealth-funded aged care services. This type of screening by the DHS Screening Unit involves a risk assessment of a person's criminal conviction history, with a specific focus on the person's risk of harm to people who are receiving aged care sector services in a workplace or volunteer environment. However, organisations providing aged care services don’t need to use the services of the DHS Screening Unit, and may conduct their own screening. More information is available on the DHS website. Disability services sector employment checks This check is relevant to South Australia government-funded disability providers – it’s a separate check to the NDIS Worker Screening Check. The check involves an assessment of a person's 'relevant history' to determine whether they pose a risk of harm to the safety or wellbeing of people with disability. ‘Relevant history’ includes findings of guilt by a court, charges for an offence, information held by government and non-government agencies, information about care concern investigations and child protection information. The outcome of this screening will involve a decision as to whether the applicant is suitable or unsuitable to work or volunteer with people with disability. The DHS Screening Unit is the only screening unit with authorisation to undertake disability services employment screening assessments. More information is available on the DHS website.
Screening checks (SA) | 2020 29
Vulnerable person-related employment checks
This check involves an assessment of a person's criminal conviction history to assess any potential risk of
harm an applicant might pose to the safety or wellbeing of vulnerable people, while working or volunteering
with vulnerable people.
The Screening Unit provides a point-in-time assessment of risk, based on the information disclosed to it at
the time of screening There are no legislative or regulatory requirements in relation to this type of
screening, however, examples from DHS include people who volunteer in community services (and who
don’t fall under legislation which requires screening checks) – for example: mental health, homelessness,
migrant services, women’s services or youth support services, or information technology workers who may
have access to files regarding vulnerable people.
More information is available on the DHS website.
General employment probity checks
This check is a point-in-time assessment of a person's criminal conviction history in relation to a specific
role within an organisation. There are no legislative or regulatory requirements in relation to this type of
screening.
The aim is to assist an employer to decide a person's suitability for employment or a volunteer position with
the organisation. A copy of the person’s criminal conviction history is not provided to the employer as part
of the check. This screening can be conducted by the Screening Unit. More information is available on the
DHS website.
Related resource
More information, including an overview of the different types of screening by the DHS
Screening unit is available on the DHS website.
Discretionary background checks
Even where there is no legislative requirement that National Police Checks and other discretionary
background checks be performed, organisations ought to undertake some level of screening for volunteers
and employees. This is because all organisations have a responsibility to ensure they maintain a safe
environment for their employees, volunteers and clients. Due to this overarching duty of care, organis ations
should always try to be informed about the people they select as their representatives.
Caution
While finding the right person to fill a vacant role is important, an organisation has an
overarching duty to provide a safe environment for staff, volunteers and clients. Good
screening procedures when recruiting is a key way for organisations to try and address
problems before they arise.
From a practical perspective, undertaking informal background checks, such as asking for referee details
and performing licence and qualification checks (and possibly asking for details of any potential conflicts of
interest) is certainly a good way for an organisation to assure itself that it is making the right choice when
recruiting a new employee or volunteer.Screening checks (SA) | 2020 30
Screening for interstate employees and volunteers
WWC Checks
Currently, WWC Checks operate at a state or territory level. This means that a Check is only valid for work
in the state or territory in which it is issued.
If an employee or volunteer has a WWC Check from another state or territory and wants to work in South
Australia (in child-related work), they will need to obtain a South Australian WWC Check.
If workers of your organisation are travelling to another state or territory outside of South Australia and will
engage in child-related work, you need to ensure that you comply with the laws of the particular state you
visit – which may mean having a valid WWC Check for that state or territory.
Generally, most states will recognise the WWC Check of a worker from another state, if they are visiting
and working on a short-term basis.
However, if your organisation's employees or volunteers work in multiple jurisdictions on a regular basis, it
is likely that they will need a WWC check for each state and territory. It is also worth pointing out that the
offences considered relevant for the purposes of a WWC Check differ across states and territories.
Note
It is important to check the applicable scheme in each state and territory.
The Royal Commission into Institutional Responses to Child Sexual Abuse’s 2015 report on
Working with Children Checks (WWCC Report) contains recommendations around the
implementation of a nationally consistent scheme.
Police Checks
The Police Check will display all (releasable) court outcomes from all states and territories of Australia.
If your organisation engages an employee or volunteer that has been living overseas, your organisation
may decide to ask for an international police check, which can be obtained from the law enforcement body
for each relevant country. Information on obtaining a police check from an overseas government or law
enforcement authority can be found on the Australian Government Department of Home Affairs website.
National child safety reforms and screening
The Council of Australian Governments (COAG) has been working towards law reform to harmonise the
laws between states and territories and published a ‘National Framework for Protecting Australia’s Children
2009-2020.’ This is a broad, long-term initiative aimed at reforming the child protection system and creating
uniform laws across states and territories. COAG aims to develop a nationally consistent approach to
working with children checks and child safe organisations across jurisdictions. This is likely to include
unifying the WWC Check system across our states and territories. Further reform and consolidation of
legislation will help to establish an inter-jurisdictional exchange of information regarding people working with
children.
If new legislation comes into force, your organisation may need to comply with different rules regarding its
employees and volunteers. It is important to be aware of the changes as they take place, and to ensure that
your organisation continues to meet the legislative requirements.Screening checks (SA) | 2020 31 Further reading For more information about creating a child-safe organisation see the ‘National Framework for Protecting Australia’s Children 2009-2020’, and the Department of Social Services’ website for resources on building the capacity of child-safe organisations as well as guidelines on building this capacity. Related resource Moores, together with Our Community, have also created a Child Safety Toolkit for not-for- profit organisations, to help them comply with these standards and other legislative requirements. The Toolkit discusses child safe recruitment processes, creating a child safe culture and various reporting obligations. It also includes a sample Child Protection Policy and Child Safety Code of Conduct (that can be tailored to your organisation).
Screening checks (SA) | 2020 32
Resources
Not-for-profit Law resources
The Not-for-profit Law website has further resources on the following related topics:
► The People Involved
This webpage contains legal information relating to everyone involved in a community group.
► Insurance and Risk
This webpage contains legal information relating to managing risk in your organisation.
Legislation
► Child Safety (Prohibited Persons) Act 2016 (SA)
► Child Safety (Prohibited Persons) Regulations 2019 (SA)
► Children and Young People (Safety) Act 2017 (SA)
► Children and Young People (Safety) Regulations 2017 (SA)
► National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules
2018 (Cth)
Other related resources
► SA Department for Child Protection
► CrimCheck
CrimCheck is a not-for-profit organisation that assists other not-for-profit organisations with the
processing and management of police checks for their employees and volunteers along with general
support and education around the process.
► Australian Criminal Intelligence Commission
The Australian Criminal Intelligence Commission (formerly CrimTrac) is the national information-sharing
service provider for Australia's police, wider law enforcement and national security agencies. It offers a
National Police Checking Service and has further information about the National Police Check process.
► Department of Social Services, National Framework for Protecting Australia’s Children
2009–2020
► NDIS Commission
The NDIS Commission website provides up to date information and has a variety of useful resources for
NDIS registered providers, workers and participants to access at any time.You can also read
