The Act reflects the February 2017 Council of Australian Governments' Disability Reform Council National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework that features a "nationally recognised approach to worker screening" and the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS, with States and Territories remaining responsible for conducting NDIS worker screening checks, including the application process and risk assessment. Under the Act a centralised database is to be hosted and administered by the NDIS Quality and Safeguards Commissioner, assisted by the NDIS Quality and Safeguards Commission (Commission), to provide and maintain current and accurate information relating to these checks. The database will be accessible to persons or bodies for the purposes of the NDIS. The collection, use and disclosure of information for the purposes of the database will be managed through pre-existing information provisions at Chapter 4 of the 2013 Act.
The total costs of developing and maintaining the database is $13.6 million over the forward estimates, of which the States and Territories are expected to contribute $6.8 million.
The 2013 Act currently provides for the screening of workers of registered NDIS providers, through the registration requirements in sections 73B, 73E, 73F, 73J and 73T. The National Disability Insurance Scheme (Practice Standards - Worker Screening) Rules 2018 (Worker Screening Rules) provide for worker screening requirements that form part of the NDIS Practice Standards. Compliance with the NDIS Practice Standards (defined at section 73T of the Act) is a condition of registration under section 73F. The Worker Screening Rules require that workers engaged in certain work must have a clearance under the NDIS worker screening legislation of a State or Territory.
The 2019 amendment provides for the Commonwealth Minister to make a determination, via legislative instrument, that a law of a State or Territory is a 'NDIS worker screening law' for the purposes of the definition of that term in section 9. It is intended, that via new section 10B, laws establishing a scheme for the screening of workers in connection with the NDIS can be specified as NDIS worker screening laws as they are made or amended by each State and Territory. A law will only be an NDIS worker screening law once it has been specified in a determination by the Minister under section 10B.
In order to make a determination under new section 10B, the Minister must have the agreement of the State or Territory which has passed the law being specified. The Minister is also limited in this determination, to only specifying laws that, to the Minister's satisfaction, establish a scheme for the screening of workers for purposes including the NDIS.
A legislative note at subsection 10B(1) provides that a legislative instrument made under new section 10B is not subject to disallowance by way of subsection 44(1) of the Legislation Act 2003. This recognises that it is undesirable for Parliament to disallow instruments that have been made for the purposes of a multi-jurisdictional body or scheme, as disallowance would affect jurisdictions other than the Commonwealth. If a determination under new section 10B is disallowed, the Commission would be stifled in its ability to perform this function, or be unable to perform it at all.
The power of the Minister to make a determination under new section 10B cannot be delegated.
The Explanatory Memo states the database
is intended to be a centralised repository of information about persons who have had decisions made about them, or who have applied to have decisions made about them, under NDIS worker screening law. It is intended to be current and up to date, reflecting an accurate picture of whether a person, in working or seeking to work with people with disability, does or does not pose a risk to such people.
As a necessary precursor to these purposes, another purpose of the database is to share information for the purposes of the NDIS to ensure that the database is current and accurate. It is intended that information in the database may be shared with the following parties at varying levels of detail:
- State and Territory worker screening units conducting worker screening checks;
- registered NDIS providers and their subcontractors;
- the National Disability Insurance Agency and its contractors;
- persons and bodies providing services under Chapter 2 of the Act;
- NDIS providers who are not registered, and their subcontractors;
- self-managed participants and plan nominees;
- the NDIS Quality and Safeguards Commission; and
- the Department of Social Services.
Paragraph 181Y(3)(d) provides that additional purposes of the database may be determined in an instrument under subsection 181Y(8).Information that may be included on the database includes
- paragraph 181Y(5)(a) provides that the database may contain information about a person who has applied for a worker screening check, and information relating to that application. This may include but is not limited to: personal information about the person, the date their application was made and the State or Territory in which their application was made.
- paragraph 181Y(5)(b) provides that the database may contain information about a person who has applied for a worker screening check whose application is no longer being considered, and the reasons for this. This may include but is not limited to: personal information about the person, the date from which their application is no longer being considered, and information to the effect that the applicant has withdrawn the application or the State or Territory worker screening unit has closed the application.
- paragraph 181Y(5)(c) provides that the database may contain information about a person who has been cleared to work with people with disability, and information relating to a decision to that effect (a clearance decision, however described). It is intended that this paragraph cover all decisions to the effect that a person has been cleared to work with people with disability, however this may be described, under an NDIS worker screening law at any point in time. One such way this may be described, is that the person does not pose a risk in working or seeking to work with people with disability. This may include but is not limited to personal information about the person. Information relating to the decision may include but is not limited to: who made the decision, the date it was made, the place it was made, the reasons for that decision, and the time period during which the decision remains in force.
- paragraph 181Y(5)(d) provides that the database may contain information about any interim decision made under NDIS worker screening law whilst a person's application is still being considered. This may, for example, be a decision that a person is prevented from working with people with disability while their application is pending. It is anticipated that a new decision (including another interim decision) may replace the initial interim decision once the application is determined.
- paragraph 181Y(5)(e) provides that the database may contain information about a person who is prevented from working with people with disability, and information relating to a decision to that effect (an exclusion decision, however described). It is intended that this paragraph cover all decisions to the effect that a person has not been cleared to work with people with disability, however this may be described, within NDIS worker screening law at any point in time. One such way this may be described, is that the person does pose a risk in working or seeking to work with people with disability. This may include but is not limited to personal information about the person. Information relating to the decision may include but is not limited to: who made the decision, the date it was made, the place it was made, the reasons for that decision and the time period during which the decision remains in force.
- paragraph 181Y(5)(f) provides that the database may contain information about how long a clearance decision or an exclusion decision, however described, is in force.
- paragraph 181Y(5)(g) provides that the database may contain information about a person who, although previously cleared to work with people with disability (via a decision described in paragraph 181Y(5)(c)), has now had that decision suspended. The database may also include information about a suspension decision. This may include but is not limited to: who decided to suspend the clearance, the date that decision was made, the place it was made, and the time period during which the suspension remains or remained in force.
- paragraph 181Y(5)(h) provides that the database may contain information about a person who, although previously cleared to work with people with disability (via a decision described in paragraph 181Y(5)(c)), has now had that decision revoked. It also provides that the database may contain information about a person who, although previously prevented from working with people with disability (via a decision described in paragraph 181Y(5)(e)), has now had that decision revoked. The database may also include information about a revocation decision. This may include but is not limited to: who decided to revoke the clearance decision or exclusion decision, the date that decision was made, the place it was made, and the time period during which the revocation remains in force.
- paragraph 181Y(5)(i) provides that the database may contain information about employers or potential employers who may hire persons who have made screening applications. The term 'employers' used in this paragraph is intended to include self-managed participants who may hire their own workers. This may include information about the person's potential, current and previous employers, including contact details, period of employment, a description of the role the person was employed in and the period of time they were in that role.
- paragraph 181Y(5)(j) enables the Minister to determine additional information to be contained within the database by way of legislative instrument under subsection 181Y(8). An example of additional determined content of the database may be a new type of decision contemplated by NDIS worker screening law not already covered by subsection 181Y(5). Flexibility in this area will benefit the overall database as States and Territories are yet to implement their NDIS worker screening laws. Additional content to be determined is necessarily limited by the Commissioner's functions and the provisions relating to the collection, use and disclosure of information under the Act.
The database is expected to include information about pending, current and previous decisions made under State and or Territory NDIS worker screening law.
Subsection 181Y(6) indicates that the range of information that may be contained on the database is intended to be broad and is not limited by the types of information and examples already discussed. The range of information that may be contained on the database is however limited to information necessary for the performance of the Commissioner's function in establishing and maintaining the database, and the purposes of the database as outlined in subsection 181Y(3). It will also be limited by the Commissioner's information collection, use and disclosure powers under the Act.
Examples of personal information which may be contained in the database include information relating to the identity of persons who have made an application or had a decision about them made under an NDIS worker screening law. This may include: name, date of birth, age, place of birth, address, telephone number, email address and other contact details, employment details, education, Government issued identification numbers and expiry dates as well as a worker screening number allocated to that person. Examples of sensitive information which may be contained in the database include information relating to disability status, Aboriginal and Torres Strait Islander status and cultural and linguistic diversity status. This sensitive information is to be used for policy development, evaluation and research purposes. It is intended that decision information, as obtained from a State or Territory worker screening unit, will only relate to the outcome or result of the decision. The database will not contain information about a person's criminal history, including convictions and charges and any other information relied on to support a decision that is made under NDIS worker screening law. It will also not contain information about a person's sexual identity or preferences.
This information is intended to promote the accuracy, integrity and effectiveness of the database by ensuring that the information about decisions made under NDIS worker screening law relate to the correct person. It will also assist employers in verifying the employment of a person who has made an application and considering a person's suitability for employment.In reference to human rights compatibility the Explanatory Memo states that the amendments promote the rights of persons with disability to be free from exploitation, violence and abuse, consistent with Australia's obligations by ensuring that the supports and services provided through the NDIS are delivered by a suitable workforce.
The Bill supports a nationally consistent approach to worker screening, with the aim of minimising the risk of harm to people with disability from the people who work closely with them. A nationally consistent and recognised worker screening regime promotes the rights of people with disability by:
- sending a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected;
- reducing the potential for providers to employ workers who pose an unacceptable risk of harm to people with disability;
- prohibiting those persons who have a history of harm against people with disability from having more than incidental contact with people with disability when working for a registered NDIS provider; and
- deterring individuals who pose an unacceptable risk of harm from seeking work in the sector.
This recognises that some NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse.
The objective of the Bill is to ensure that there is a national repository of decisions made under State and Territory worker screening laws on whether persons who work, or seek to work, with people with disability pose a risk to such people, and to enable this information to be accessible to all States and Territories, and to employers (including self-managed participants) engaging workers in the NDIS.
It will ensure that there is visibility of workers' screening outcomes across all States and Territories, and that a worker who has been excluded by one State or Territory is excluded nationally. A national worker screening database eliminates the opportunity for people to make multiple attempts in different jurisdictions at gaining a worker screening clearance.
The paramount objective of this Bill is to protect people with disability from experiencing harm arising as a result of unsafe supports or services provided under the NDIS.
Consistent with this objective, worker screening has been introduced for roles with registered NDIS providers that have been identified as requiring particular mitigation of the risk of harm to people with disability. Worker screening obligations are not imposed in relation to other roles; however, it will remain open to employers, including self-managed participants, to require worker screening for any worker that they engage in the delivery of NDIS supports and services. This reflects a targeted, measured approach to the risk.
Criminal history checks and other forms of pre-employment screening are conducted as a matter of routine for a range of occupations to allow employers to make recruitment decisions which support a safe and secure workplace for workers and people with disability.
However, governments recognise that some individuals, by virtue of their history, have valuable lived experiences to share with people with disability accessing NDIS supports and services. It is recognised that people with lived experience who have committed an offence or misconduct in the past can make significant changes in their lives.
The Commission will work with State and Territory governments to put in place a nationally consistent, risk-based decision-making framework for considering a person's criminal history and patterns of behaviour over time to guard against the unreasonable exclusion of people who have committed an offence or misconduct from working in the disability sector, where this is not relevant to their potential future risk to people with disability.
Under the national policy for NDIS worker screening, States and Territories will provide certain review and appeal rights to individual workers who may be subject to an adverse decision. Individuals can seek a review of an adverse decision, consistent with the principles of natural justice and procedural fairness. Where there is an intention to make an adverse decision, States and Territories will disclose reasons for this (except where NDIS worker screening units are required under Commonwealth, State or Territory law to refuse to disclose the information), allow the individual a reasonable opportunity to be heard, and consider the individual's response before finalising the decision. The Bill supports a proportionate approach to safeguards that does not unduly prevent a person from choosing to work in the NDIS market, but ensures the risk of harm to people with disability is minimised, by excluding workers whose behavioural history indicates they pose a risk in the provision of certain services and supports.
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The right to privacy includes respect for informational privacy, including in respect of storing, using and sharing private information and the right to control the dissemination of private information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.
The NDIS worker screening database is expected to hold information about the identity of persons who have made an application for an NDIS worker screening check, and any pending, current and previous decisions made by the State and or Territory NDIS worker screening unit in relation to that application. This is consistent with the objective to ensure that information about whether a person who works, or seeks to work, with people with disability poses a risk to such people, is current, accurate, and available to all States and Territories, and to employers engaging workers in the NDIS.
The range of information that may be contained on the database is limited to information necessary for the performance of the Commissioner's functions and for the purposes of the database set out in the Bill. The database will not contain information about a person's criminal history, including convictions and charges and any other information relied on to support a decision that is made under NDIS worker screening law, or information about a person's sexual identity or preferences.
The range of information that will be shared with persons or bodies will be proportionate and necessary for the objective of minimising the risk of harm to people with disability from the people that work with them.
States and Territories will have full access to the database as required to effectively implement the national policy, including the ongoing monitoring of people who hold clearances, and the identification of fraudulent or duplicate applications, such as where a person has made multiple attempts to gain a worker screening clearance in a different jurisdiction or under a different name.
By comparison, employers will have access to a limited subset of information on the database. This is expected to include information about a worker's identity, so that an employer can verify that the person who holds the clearance is the same person that they have engaged or intend to engage. Employers will also have access to information related to whether or not a person they have engaged is cleared to work in certain roles. Employers will not have access to the details of a worker's other employers, or sensitive information relating to a worker's disability status, Aboriginal and Torres Strait Islander status or cultural and linguistic diversity status.
