Working with Children Checks: What You Need to Know

What is a working with children check?

The Child Safety (Prohibited Persons) Act 2016 (CSPP Act) provides the framework for screening people who want to work or volunteer with children in South Australia.

An up-to-date working with children check is often a pre-requisite to obtaining employment – sometimes even in sectors that are not primarily child-related.

The consequences of being prohibited from working with children can be significant; affecting a person’s professional reputation, and their ability to earn.

The power to conduct working with children checks lies with the Central Assessment Unit (Unit) – a specialised screening unit within the South Australian Department for Human Services.

As part of its assessment, the Unit will consider “assessable information” relating to a person, to determine whether they pose an unacceptable risk to children.  If such a risk is identified, that person will be prohibited from working or volunteering with children.

The Unit must take reasonable steps to notify the person of any assessable information, and invite them to make submissions in response.  In other words, the applicant is given the opportunity to “show cause” as to why they should not be prohibited from working with children.  The Unit is then required to consider those submissions when making its decision.

The CSPP Act also outlines circumstances where a person is presumed to pose an unacceptable risk to children, and therefore must be prohibited from working with children, unless that person is able to meet one or more particular requirements under the CSPP Act.

It is not always easy to respond to assessable information, particularly if it relates to alleged or proven criminal conduct.

Likewise, challenging a presumption of unacceptable risk can be a complex task.

That is why it is wise to seek legal advice before responding to any invitation by the Unit to “show cause”.

What happens if I am prohibited from working with children?

If you are issued with a prohibition from working with children and would like to challenge the Unit’s decision, you will need to act quickly – the CSPP Act allows only 14 days from the date you receive notice to apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review of the decision.

The SACAT conducts an independent review of the Unit’s decision.  The SACAT will examine the evidence or material before the Unit and may consider any further evidence or material that it decides is appropriate in the circumstances.

SACAT’s role is to reach the correct or preferable decision. In doing so, it must have regard, and give appropriate weight, to the decision of the original decision-maker. This means that the SACAT might:

• give significant weight to the original decision if satisfied that it is correct in law, correct as to factual findings, and correct in the exercise of any discretion or any evaluative judgment in the context of the objects and principles of the CSPP Act, or
• give little or no weight to the decision of the original decision-maker if, for example, it is not satisfied that the original decision-maker has approached its task correctly.

After undertaking a review, the SACAT may affirm the decision, set aside and substitute the decision or send the matter back to the original decision-maker for reconsideration.

There is a great deal to consider during any review proceedings in the SACAT – both in a legal sense and in a practical sense.

An unsuccessful review proceedings outcome of this kind may result in a continuing prohibition, with long-term implications for a person’s employment and their life.

If your future is at stake, it is important to seek legal advice.

Get in touch

If you’ve received a show cause notice or have been prohibited from working with children, and need advice on your rights or options for review, we’re here to help.

You may also be interested in our blog on NDIS worker clearances.

Contact Hanna Rogers from our Criminal Law team for clear, practical guidance tailored to your situation.

Email: hrogers@tgb.com.au
Phone: (08) 8205 1259