Not-for-profit Law
Legal help for community organisations

Background checks

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Screening procedures for potential candidates

When your not-for-profit organisation recruits volunteers or employees you need to conduct appropriate screening procedures to manage the risks they may pose to your organisation.

What checks you conduct will depend on the nature of the work the employee or volunteer will be doing.  If someone has access to money, equipment or data, it may be appropriate to conduct a police check. If they will be working with children (this has a special meaning), it's a legal requirement to conduct a Working With Children Check. And specific requirements apply to workers providing National Disability Insurance Scheme services and supports.

Screening applicants appropriately when your organisation is recruiting is a good way to try to keep your organisation safe and to head off potential problems before they arise.

All organisations have a duty of care (a legal responsibility) to ensure a safe environment for employees, volunteers and clients, and being appropriately informed  will help.

NEW The National Disability Insurance Scheme Worker Screening Check Program

The National Disability Insurance Scheme (NDIS) Worker Screening Check will be a national clearance system for workers providing NDIS services and supports.
 
Under the national scheme:
  • a NDIS worker screen database of registered workers will be established
  • organisations will be able to access the database to check the clearance status of workers
  • NDIS providers will be responsible for identifying roles in their organisation that require a screening check and will be required to make sure all workers in these roles receive an appropriate check, and
  • workers who receive a national screening check will be eligible to work in any Australian state or territory
While the system will be national, workers who provide NDIS disability support will apply for a check through their local state or territory authority. The national program was scheduled to begin on 1 July 2020, but has been delayed due to COVID-19. The new target start date for the national scheme is February 2021.
 
Until the national scheme begins, each state and territory has interim arrangements in place. This legal framework for this transition period is set out in the National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018.
 
During this transition period, which ends for all states and territories on 31 January 2021:
  • each state and territory has its own list of acceptable checks for NDIS workers, and
  • NDIS workers must have acceptable checks for each state and territory where they work (the interim checks are not portable)
 
Once the national program is implemented, workers will need to obtain a new NDIS worker clearance on the expiry of their existing checks. Note that Victorian workers will need to begin the process of obtaining a national screening check within six months of the end of the transition period (irrespective of the expiry date of their existing check).

Police checks

While police checks are generally not necessary, there are certain industries where they are mandatory. For example, aged care facilities that are funded by the Australian Government are required to screen employees and volunteers who have (or are likely to have) direct contact with care recipients. You should check your funding and insurance contracts to see whether any background checks are required.

Those who recruit volunteers for services have a duty of care to ensure that they take reasonable steps to avoid harm to the organisation and its existing employees, volunteers and clients. Even if the law, or any funding agreement, doesn't require a police records check, your organisation may decide that a criminal record check is necessary.

If your organisation requires that applicants undergo police checks during the recruitment process, you must not refuse an applicant because they have a prior conviction for an offence that has no relevance to the position.

There are legal protections against discrimination on the basis of criminal record, and you should only 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.

For more information go to the Australian Human Rights Commission (AHRC).

Privacy laws

During the recruitment process your organisation will gain access to personal information about candidates, so privacy laws may apply to govern the ways your organisation manages that information.

Even if privacy laws don't apply to your organisation, the ways your organisation uses, stores and discloses that information might impact on your reputation, so it's worth considering how best to approach information about individuals.

Not-for-profit Law has produced a guide on privacy. To download the guide go to the Privacy page.

Background screening and Working with Children Checks

Not-for-profit Law has produced comprehensive guides on Working with Children Checks. The guides for each state and territory are below. 

Background screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

Working with children checks

In Victoria, under the Working With Children Act 2005 (WWC Act), people aged 18 years and over, including volunteers, must have a Working with Children Check (WWC Check) before they can perform ‘child-related work’.

Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who has failed to conduct the check.

Activities will be considered ‘child-related work’ for the purposes of a WWC Check if the work is in a particular occupational field listed in the WWC Act (referred to as ‘services, places, bodies or activities’), and involves contact with a child that is direct (broadly defined) and not incidental to the work. 

More information is also available on the Victorian Department of Justice and Community Safety website.

Not-for-profit Law has produced a comprehensive guide on screening checks which includes information on:

  • Working with Children Checks
  • Police Checks (sometimes called National Police Checks or Criminal Record Checks)
  • interstate and overseas screening
  • other types of screening checks, and
  • recent child safety law reforms relevant to screening

Other resources

Background screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

Working with children checks

In New South Wales, under the Child Protection (Working with Children) Act 2012  (CP Act), people over the age of 18 who will be doing 'child related work' must hold a Working with Children Check (WWC Check). Failure to comply with these requirements can result in serious penalties for both the organisation, the employee or volunteer who has failed to undertake the check.

A person is engaged in ‘child-related work’ if the work, which includes volunteering, involves direct contact with a child that is a usual part of, and more than incidental to, the work and in connection with, one of the  services or sectors listed under the CP Act.

More information is also available at the NSW Office of the Children's Guardian webpage.

Not-for-profit Law has produced a comprehensive guide on screening checks which includes information on:

  • Working with Children Checks
  • Police Checks (sometimes called National Police Checks or Criminal Record Checks)
  • interstate and overseas screening
  • other types of screening checks, and
  • recent child safety law reforms relevant to screening

Other resources

Background screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

Blue Card checks

In Queensland, under the Working with children (Risk Management & Screening) Act 2000 (WWC Act), anyone who engages in 'regulated employment' or working for a 'regulated business' must hold a Blue Card Check.

Regulated employment includes volunteering and is defined under the WWC Act. Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who has failed to conduct the check.

See the Queensland Government Blue Card services website for more information.

Note - changes to the Blue Card system came into effect on 31 August 2020. Please see the Queenland Government webpage 'Changes to the Blue Card system' for more information. 

Not-for-profit Law has published a comprehensive guide on screening checks which includes information on:

  • Blue Card Checks
  • Police Checks, and
  • other types of screening checks

Note - This is guide is in the process of being updated to reflect changes in the law since 2018, including the recent changes which came into effect on 31 August 2020.

Screening checks (including Working with children checks)

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

In South Australia, under the Child Safety (Prohibited Persons) Act 2016 (CS Act), anyone who is 14 years or older and works in a ‘prescribed position’, including volunteers, must get a Working with Children Check (WWC Check).

Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who has failed to conduct the WWC Check.

‘Prescribed positions’ include specific positions listed under Child Safety (Prohibited Persons) Regulations 2019, as well as roles where it is reasonably foreseeable they will work with children.

Note: if you have previously relied on a National Police Check for your workers (including volunteers), they must have a Working with Children Check by 1 July 2020.

In South Australia, there are other screening checks required under legislation:
  • Child-related employment check
  • Disability services employment checks
  • Aged care sector checks

Further information on screening checks can also be found on the SA Department of Human services website. More information on Working with Children Checks is also available on this website.

Background screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

Working with children clearances

In the Northern Territory, under the Care and Protection of Children Act 2007 (CPC Act), anyone 15 years and older must hold a working with children clearance (also known as an Ochre Card) before engaging in certain ‘child-related work'.

Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who failed to get the clearance.

‘Child-related work’ for the purposes of a clearance is any work, including volunteering, that involves or potentially involves contact with children (broadly defined), that falls within one of the specific activities or services listed in the CPC Act.

More information is available on the Northern Territory Government website.

Not-for-profit Law has produced a comprehensive guide on screening checks which includes information on:

  • Working with Children Clearances
  • Police Checks, and
  • other types of screening checks

 

Background screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

Working with Vulnerable People Registration

In the Australian Capital Territory, under the Working with Vulnerable People (Background Checking) Act 2011 (WWVP Act), anyone 16 years and older who is 'engaged in a regulated activity', including volunteers, must be registered under the WWVP Act.

Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who has failed to conduct the check. 

Being ‘engaged in a regulated activity’, means a person has contact with a vulnerable person, which includes a child, as part of an activity outline under the WWVP Act.

More information is available at the Access Canberra website.

Not-for-profit Law has produced a comprehensive guide on screening checks which includes information on:

  • legal obligations under the Working with Vulnerable People Registration
  • Police Checks, and
  • other types of screening checks

Background screening

It’s important that your organisation screens and inducts employees and volunteers in a thorough and systematic way. Certain background checks are required by law (under legislation or contract) and others are discretionary.

Registration to Work with Vulnerable People

In Tasmania, under the Registration to Work with Vulnerable People Act 2013 (RWVP Act), anyone 16 years and older, including volunteers, must be registered under the RWVP Act if they are ‘engaged in a regulated activity’ involving contact with a vulnerable person, which includes children.

Failure to comply with these requirements can result in serious penalties for both the organisation and the employee or volunteer who has failed to register.

Regulated activities are listed in the Registration to Work with Vulnerable People Regulations 2014.

More information is available at the Tasmanian Department of Consumer, Building and Occupational Services website.

Not-for-profit Law has produced a comprehensive guide on screening checks which includes information on:

  • legal obligations under the Registration to Work with Vulnerable People
  • Police Checks, and
  • other types of screening checks

Last Updated: 15 September 2020