New Background Check Exemptions for Disability Workers in SA


Disability Services (Assessment of Relevant History) (Exemptions) Variation Regulations 2020 No. 37 (SA)

The Disability Services (Assessment of Relevant History) (Exemptions) Variation Regulations 2020 No. 37 (SA) (the Variation Regulations) commenced on 2 April 2020 and have amended the Disability Services (Assessment of Relevant History) Regulations 2014 (SA) (the Regulations).

Background

It is an offence under section 5B of the Disability Services Act 1993 (SA) (the Act) for the “responsible authority” of a disability service provider to engage a person in a “prescribed position” before an assessment of relevant history is carried out under the Act in relation to that person. The effect of the Variation Regulations is that they insert new regulations 15 and 16 into the Regulations, which provide for exemptions to this requirement.

Exemption for persons who have had a working with children check conducted

Regulation 15 exempts the “responsible authority” from having an assessment of relevant history carried out in relation to a person who has had a working with children check conducted by the central assessment unit (the CAU) under the Child Safety (Prohibited Persons) Act 2016 (SA) in the past 5 years, before the responsible authority engages that person. The exemption is only available where the person is not a “prohibited person” within the meaning of that Act. (Essentially this is a person whose application to the CAU has been rejected and they are therefore prohibited from working with children).

The intention is to avoid overlap where the person has already undergone screening in relation to working with children.

Exemption for persons with pending applications

Regulation 16 exempts the responsible authority from the operation of section 5B in relation to persons where an application has already been made for an assessment of relevant history to the South Australian Department of Human Services Screening Unit and the application is pending. For this exemption to apply, the person must be supervised at all times by a “prescribed supervisor” while acting in the prescribed position.

Relevant terms

The prescribed functions are set out in detail in section 5B of the Act and regulations 7 and 8 of the Regulations and include regular contact with persons with a disability or supervising people in positions requiring regular contact with persons with a disability.

The meaning of prescribed position is set out in detail in section 5B of the Act and includes positions that involve the performance of 1 or more “prescribed functions”.

Prescribed supervisor means a person in relation to whom:

  • an assessment of relevant history has been undertaken within the preceding 3 years;
  • a child-related employment screening has been carried out within the preceding 3 years;
  • a working with children check (within the meaning of the Child Safety (Prohibited Persons) Act 2016 (SA)) has been conducted within the preceding 5 years.

The meaning of responsible authority is set out in detail in section 5B of the Act and includes the board, committee or other body or person in which the management of the provider is vested (and, in the case of a board, committee or body that is not incorporated, each member of the board, committee or body will be taken to be a managing authority of the provider).

Conclusion

Organisations should ensure that relevant staff are aware of the new exemptions under the disability services laws.


Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au