8 minute read
Workplace Relations
by Boylen
Working with children in the hospitality sector – amendments to the Child Sex Offenders Registration Act 2006 (SA)
BY OWEN WEBB & SARAH LEGOE
As of 1 July 2025, persons who are registered on the child sex offenders list are no longer able to work with children regardless of the industry in which the person works or seeks to work. This is as a result of amendments to the Child Sex Offenders Registration Act 2006 (SA) (Act).
The changes were brought about by a concern that persons on the child sex offenders register may be working with minors in industries including retail and hospitality as the Act previously only covered child related work in areas where an employee would have significant contact with a child such as childcare, foster care, education, healthcare and juvenile detention amongst other matters.
This article will outline what child related work is and what the obligations of the both the employee (being an employee who is on the child sex offenders register) and the employer are in respect of complying with the Act.
WHO IS COVERED BY THE CHANGES
Persons covered by the Act include persons who have been sentenced, convicted or arrested in respect of certain offences and persons who are on bail for certain offences.
Sentenced or convicted
A person who has been sentenced or convicted of a class 1 or 2 offence (as set out in the Act) are a registrable offender for the purposes of the Act and are prohibited from working with children (see section 6(1)).
Arrested
Whilst not falling within the definition of a registrable offender, it is important to note that a person arrested or reported for a class 1 or 2 offence also have obligations under the Act to notify the employer if they are engaged in child related work.
Charged and bailed
A person who has been charged with an offence that would fall within a class 1 or class 2 offence, and who has been released on bail, would also be prevented from engaging in child related work as a condition of their bail arrangements, unless the bail authority was satisfied the person’s work posed no risk to children. A person would still need to notify the employer in any event. This is because the definition of child related work in the Bail Act mirrors the Act (section 11(13) of the Bail Act 1985).
WHAT IS CHILD RELATED WORK
A child for the purposes of the Act is a person under the age of 18 years (see definition in section 4 of the Act).
Child related work is defined in section 64 of the Act and is work involving contact with a child in, amongst other matters:
64(ka) businesses or undertakings in which children are employed.
What is deemed child-related work now extends to cover any work involving contact with a child in connection with any business or undertaking at which children are employed including hotels, restaurants,
accommodation venues and convention centres/ sporting arenas. Child related work is no longer limited to the type of work that involves direct or significant contact with a child (for example, child care).
Work includes work not only under a contract of employment but also includes work performed under a contract for services meaning independent contractors are also captured by the amendments.
In order for the requisite child related work to be captured by the Act, it requires the work to involve contact with a child. Contact is defined in section 64(1) of the Act to be:
“any form of contact between a person and a child and includes:
(a) any form of physical contact; and
(b) any form of oral communication, whether face to face or by telephone; and
(c) any form of written communication, including electronic communications. “
It is not apparently evident from these provisions, whether:
1. there needs to be actual or potential contact with a child (physical or otherwise), or
2. if working at a workplace where there are children is sufficient to fall within the prohibition regardless of whether the person has contact with that offender or not; or
3. a registrable offender would be permitted to work at times when children would not be present at the workplace, for a person to be covered by the prohibition in the Act.
Comments made during Parliamentary debates suggest registerable offenders working anywhere that has underage employees will be prevented from working in such workplaces, unless it could be shown that the work involved no contact with the child, for example, if they worked at different times of the day.1
To deal with the fact that a wide range of businesses employ minors and due to staff shortages, there is the ability for a registrable offender to seek an exemption under section 66B of the Act so as to allow the person to work with children. An example of when an exemption may be required may be where a regional hotel employs one minor and a trade qualified chef so as to allow the minor and the chef to work at the same time. It is up to the registrable offender, and not the employer, to make the requisite application (and pay any fees).
OBLIGATIONS OF THE EMPLOYEE
The onus is on the registrable offender to ensure they do not undertake or apply for child-related work (section 65 of the Act). The registrable offender may commit an offence and face potential imprisonment if they do so.
A person engaged in child related work and who is arrested for an offence covered by the Act, must notify their employer within 7 days of the arrest occurring. Likewise, a person who applies for child related work must notify the potential employer that they have been arrested.
The prohibition in section 65 of the Act continues regardless of whether the conviction becomes spent (section 71 of the Act).
TRANSITIONAL ARRANGEMENTS
Transitional provisions have been put in place to deal with persons who become a person engaged in child related work as a result of the amendments.
Such person was to notify the employer and the Commissioner of Police by 30 July 2025 that they propose to seek a declaration from the Commissioner under section 66B of the Act. If they do, that person will be exempt from the operation of section 65 of the Act until 31 December 2025. If they do not, the person should cease to be engaged in child related work and should notify the employer of their need to resign from their employment.
EMPLOYER OBLIGATIONS AND RECOMMENDATIONS
As set out above, the onus is on the registrable offender or person charged, arrested or arrested and bailed for a class 1 or 2 offence, to notify the employer of their inability to work with children.
Notwithstanding the above, employers have an obligation under work health and safety laws to provide a safe workplace for employees including minors.
To mitigate against the risk of a registrable offender unknowingly being engaged by a member and subsequently posing an unacceptable risk to the safety of minors who may work at the premises, members may want to consider what steps can be taken prior to engaging a person to prevent (or help prevent) this occurring. This may include the following:
1. Adding a question to an application form asking for
confirmation that the person is not prohibited from working with children either in full or part.
2. During an interview, asking whether the person is aware of any restrictions on their ability to work at a workplace where persons under the age of 18 are employed.
Steps that may be taken during employment include:
1. From time to time advising employees during staff meetings, tool box meetings or other such forums of these prohibitions.
2. Ensuring minors and other employees know how to report any potential inappropriate behaviour to management (for example, ensuring they are aware of any grievance policy, complaints policy etc).
There is no requirement for applicants or existing employees to provide the employer with a working with children check. This is because there was no corresponding amendment to the Child Safety (Prohibited Persons) Act 2016.
If an employer sought to go down the path of requiring all employees or prospective employees to provide a working with children check, the employer would need:
to give consideration to the fact it can take some time for a working with children check to be returned and what they propose to do in the meantime; and
ensure they do not otherwise discriminate against and use the information in the report for a purpose other than ensuring the person is not prohibited from working with children under the Act.
Whatever steps are taken, employers should make sure that the information they are seeking from the person is not used for a purpose other than that which it is obtained so as to mitigate against the risk of any potential discriminatory behaviour.
Employers should also seek advice from the Workplace Relations Team as to what steps to take should an employee notify the employer that they are no longer able to work with children as a result of the prohibition under the Act.
FURTHER INFORMATION
Members should contact Owen Webb or Sarah Legoe if they need any further information.
This article contains information that is of a general nature and is for informational purposes only. This article, and its contents, does not constitute legal advice.
