Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 (Qld)

The Parliament of Queensland enacts—

Part 1    Preliminary

1   Short title

This Act may be cited as the Disability Services and Other Legislation (Worker Screening) Amendment Act 2020.

2   Commencement

This Act commences on a day to be fixed by proclamation.

Part 2    Amendment of Disability Services Act 2006

3   Act amended

This part amends the Disability Services Act 2006.

Note—

See also the amendments in schedule 1.

4   Amendment of s 6 (Objects of Act)

(1)Section 6(1)(c), ‘disability services’—
omit, insert—

NDIS supports or services

(2)Section 6(2), definition national disability insurance scheme—
relocate to schedule 8.

5   Amendment of s 7 (How objects are mainly achieved)

Section 7(d)—
omit, insert—

(d)regulating particular aspects of the provision of NDIS supports or services by particular NDIS service providers under the National Disability Insurance Scheme Act 2013 (Cwlth) to ensure the quality and safety of the supports or services; and

6   Amendment of s 12 (What are disability services)

Section 12—
insert—

(2)However, disability services do not include NDIS supports or services.

7   Insertion of new s 12A

After section 12—
insert—

12A   What are NDIS supports or services

NDIS supports or services are supports or services provided to a person with disability under the national disability insurance scheme, to the extent that providing the supports or services is funded by the payment of an NDIS amount under the National Disability Insurance Scheme Act 2013 (Cwlth).

8   Amendment of s 13 (Meaning of service provider)

Section 13, before ‘services’—
insert—

supports or

9   Replacement of ss 15–16A

Sections 15 to 16A—
omit, insert—

14   Meaning of funded service provider

(1)A funded service provider is a service provider, other than the State, receiving recurrent or one-off funds from the department, or another department prescribed by regulation, to provide disability services.

(2)It does not matter whether or not the service provider also uses other funds or resources to provide the disability services.

(3)A funded service provider may be a local government.

15    Meaning of NDIS service provider

(1)A registered NDIS provider and an unregistered NDIS provider are each an NDIS service provider.

(2)A registered NDIS provider is a registered NDIS provider under the National Disability Insurance Scheme Act 2013 (Cwlth).

(3)An unregistered NDIS provider is an entity that delivers NDIS supports or services to people with disability, other than a registered NDIS provider.

16   Meaning of NDIS sole trader and State sole trader

(1)An individual is an NDIS sole trader if the individual—

(a)is an NDIS service provider; and

(b)as an NDIS service provider, personally provides NDIS supports or services to people with disability.

(2)An individual is a State sole trader if the individual—

(a)is a funded service provider; and

(b)as a funded service provider, personally provides disability services to people with disability.

10   Amendment of s 18 (Principle that people with a disability have the same human rights as others)

(1)Section 18(3), after ‘disability services’—
insert—

or NDIS supports or services,

(2)Section 18(3)(a) to (f) and (4), before ‘services’—
insert—

supports or

11   Replacement of pt 5 (Screening of particular persons engaged by department or particular service providers)

Part 5—
omit, insert—

Part 5    Disability worker screening and related requirements

Division 1 Preliminary

Subdivision 1 General

40   Main purposes of part

This part—

(a)establishes a scheme for screening persons, by obtaining and considering their criminal history and other relevant information, to assess whether the persons pose an unacceptable risk of harm to people with disability; and

(b)requires persons who carry out, or propose to carry out, particular work with people with disability to be screened under the scheme before they start carrying out the work; and

(c)prohibits persons from carrying out particular work with people with disability if the chief executive decides they pose an unacceptable risk of harm to the people with disability.

41   Paramount consideration

The paramount consideration in making a decision under this part is the right of people with disability to live lives free from abuse, violence, neglect or exploitation, including financial abuse or exploitation.

42   Part applies despite Criminal Law (Rehabilitation of Offenders) Act 1986

This part applies to a person despite the Criminal Law (Rehabilitation of Offenders) Act 1986.

43   Exemption for secondary school student on work experience

(1)This section applies if—

(a)a secondary school student on work experience carries out disability work for a service provider (the work experience provider); and

(b)another provision of this part requires a person who is engaged to carry out the disability work to hold a clearance or interstate NDIS clearance.

(2)Despite the other provision, the student is not required to hold the clearance or interstate NDIS clearance to carry out the disability work.

(3)The work experience provider does not commit an offence against the other provision in relation to the student carrying out the disability work if the student carries out the work under the direct supervision of—

(a)for NDIS disability work—a person who holds an NDIS clearance or interstate NDIS clearance; or

(b)for State disability work—a person who holds a clearance.

Subdivision 2 Interpretation

44   When a person is engaged to carry out work for entity

(1)A person is engaged to carry out work for an entity if—

(a)the person has an agreement with the entity to carry out the work as an employee or volunteer of the entity; or

(b)the person carries out the work under a contract for services between—

(i)the entity and the person; or

(ii)the entity and another person.

(2)For this section, it does not matter—

(a)whether the agreement or contract is written or unwritten; or

(b)whether the work is carried out voluntarily or for financial reward; or

(c)how long the person is engaged to carry out the work; or

(d)whether the agreement or contract provides for the person to carry out work on 1 occasion or an ongoing basis, whether regularly or irregularly.

(3)Also, for this section, the nature of the work does not matter.

Note—

See also sections 46, 48 and 49.

45   Meaning of NDIS disability work and risk-assessed NDIS work

(1)NDIS disability work is work that includes the delivery of NDIS supports or services to a person with disability.

(2)Risk-assessed NDIS work is NDIS disability work carried out in a role for which the normal duties—

(a)include the direct delivery of specified NDIS supports or services to a person with disability; or

(b)are likely to require more than incidental contact with a person with disability.

(3)For subsection (2)(b), the normal duties of a person’s role are likely to require more than incidental contact with a person with disability if the duties include—

(a)physically touching a person with disability; or

(b)building a rapport with a person with disability as an integral and ordinary part of the performance of the duties; or

(c)duties that, under the NDIS (Worker Screening) Practice Standards, are defined to be, or otherwise described as, duties that require more than incidental contact with a person with disability.

(4)In this section—

contact includes—

(a)physical contact; and

(b)face-to-face contact; and

(c)oral, written and electronic communication.

rapport means a relationship or understanding that is more than merely polite and functional.

specified NDIS supports or services means NDIS supports or services that, under the NDIS (Worker Screening) Practice Standards, are—

(a)specified supports or specified services; or

(b)identified as supports or services that, if delivered directly to a person with disability, must be delivered by a person who holds an NDIS clearance or interstate NDIS clearance.

46   Key personnel of NDIS service provider taken to be engaged in risk-assessed NDIS work

(1)A person is taken to be engaged to carry out risk-assessed NDIS work for an NDIS service provider if the person is key personnel of the service provider.

(2)In this section—

key personnel see the National Disability Insurance Scheme Act 2013 (Cwlth), section 11A.

47   Meaning of State disability work

(1)State disability work is work that includes providing disability services that is carried out for the department or a funded service provider.

(2)State disability work does not include work carried out at a place where a funded service provider provides disability services that is carried out—

(a)by a consumer of the service provider; or

(b)by a tradesperson who—

(i)performs work at the place from time to time; and

(ii)is not an employee of the service provider; or

(c)by a volunteer who—

(i)is a relative of a person who receives disability services at the place; and

(ii)is at the place only to help with the care of the person.

48   When person is engaged to carry out State disability work

(1)A person is engaged to carry out State disability work for the department if the person—

(a)is engaged to carry out the work at a place at which the department provides disability services; or

(b)is a public service employee employed at a place mentioned in paragraph (a); or

(c)is a member of a committee established under section 222(a).

(2)A person is engaged to carry out State disability work for a funded service provider if the person is engaged to carry out the work at a place at which the service provider provides disability services.

(3)A person is not engaged to carry out State disability work for the department or a funded service provider if the person is engaged to carry out the work, and carries out the work, for not more than 7 days in a calendar year.

(4)This section does not limit section 44.

49   Particular members or officers taken to be engaged in State disability work for funded service provider

A person is taken to be engaged to carry out State disability work for a funded service provider if—

(a)the person is a member of a board, management committee or other governing body of the service provider; or

(b)if the service provider is a corporation—the person is an executive officer of the service provider.

50   Meaning of clearance and types of clearances

(1)A clearance is a declaration, issued by the chief executive to a person, that—

(a)screening of the person has been conducted under this part; and

(b)the person is permitted to carry out disability work.

(2)An NDIS clearance is a clearance issued to a person who made an NDIS worker screening application.

(3)An interstate NDIS clearance is a declaration, however called, issued under a corresponding law that corresponds to an NDIS clearance.

(4)A State clearance is a clearance issued to a person who made a State disability worker screening application.

51   Meaning of exclusion and types of exclusions

(1)An exclusion is a declaration, issued by the chief executive to a person, that—

(a)screening of the person has been conducted under this part; and

(b)the person is excluded from carrying out disability work.

(2)An NDIS exclusion is an exclusion issued to a person who made an NDIS worker screening application.

(3)An interstate NDIS exclusion is a declaration, however called, issued under a corresponding law that corresponds to an NDIS exclusion.

(4)A State exclusion is an exclusion issued to a person who made a State disability worker screening application.

52   Meaning of notifiable person

(1)Each of the following is a notifiable person for a person—

(a)if the chief executive is aware that an NDIS service provider engages, or proposes to engage, the person to carry out NDIS disability work—the NDIS service provider;

(b)if the chief executive is aware that a funded service provider engages, or proposes to engage, the person to carry out State disability work—the funded service provider;

(c)another entity prescribed by regulation to be a notifiable person for the person.

(2)Subsection (3) applies for a person if—

(a)the person delivers NDIS supports or services to an NDIS participant as—

(i)an NDIS sole trader; or

(ii)a person engaged by an NDIS service provider to deliver the supports or services; and

(b)the Agency is not wholly managing the funding for supports under the NDIS participant’s plan; and

(c)the chief executive is notified, or otherwise becomes aware, that the person is delivering the NDIS supports or services to the NDIS participant.

(3)Each of the following is also a notifiable person for the person—

(a)the NDIS participant;

(b)another person recognised by the chief executive as a person with the authority or responsibility to act for the NDIS participant in relation to the participant’s plan, other than the Agency.

(4)In this section—

Agency see the National Disability Insurance Scheme Act 2013 (Cwlth), section 9.

managing the funding for supports, under an NDIS participant’s plan, see the National Disability Insurance Scheme Act 2013 (Cwlth), section 42.

NDIS participant means a person who is a participant in the national disability insurance scheme under the National Disability Insurance Scheme Act 2013 (Cwlth).

plan, for an NDIS participant, means the NDIS participant’s plan under the national disability insurance scheme.

Division 2 Requirements related to persons carrying out disability work

Subdivision 1 NDIS disability work

53   Registered NDIS provider engaging person to carry out risk-assessed NDIS work

(1)A registered NDIS provider must not engage, or continue to engage, a person to carry out risk-assessed NDIS work unless the person holds an NDIS clearance or interstate NDIS clearance.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—200 penalty units or 2 years imprisonment; or

(b)otherwise—100 penalty units.

(2)It is an aggravating circumstance for an offence against subsection (1) if the registered NDIS provider has been given notice that—

(a)the person’s NDIS clearance was cancelled on the person’s request under division 6; or

(b)the person’s interstate NDIS clearance was cancelled on the person’s request under a corresponding law.

(3)A registered NDIS provider does not commit an offence against subsection (1) if—

(a)the person (a subcontractor) is engaged to carry out the risk-assessed NDIS work under a contract for services between the provider and another person; and

(b)the provider has complied with the NDIS (Worker Screening) Practice Standards in relation to the subcontractor being engaged to carry out the risk-assessed NDIS work for the provider.

54   Carrying out risk-assessed NDIS work without NDIS clearance or interstate NDIS clearance prohibited

(1)A person must not start, or continue, an engagement to carry out risk-assessed NDIS work for a registered NDIS provider unless the person holds an NDIS clearance or interstate NDIS clearance.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—500 penalty units or 5 years imprisonment; or

(b)otherwise—100 penalty units.

(2)A person who is a registered NDIS provider must not carry out risk-assessed NDIS work as an NDIS sole trader unless the person holds an NDIS clearance or interstate NDIS clearance.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)It is an aggravating circumstance for an offence against subsection (1) if the person—

(a)held an NDIS clearance that was cancelled on the person’s request under division 6; or

(b)held an interstate NDIS clearance that was cancelled on the person’s request under a corresponding law; or

(c)is a disqualified person; or

(d)holds a negative notice under the Working with Children Act; or

(e)is subject to—

(i)offender reporting obligations; or

(ii)an offender prohibition order; or

(iii)an offender prohibition disqualification order; or

(iv)a sexual offender order; or

(f)is the respondent to an application for an offender prohibition order.

55   Engaging person with NDIS exclusion or interstate NDIS exclusion prohibited

An NDIS service provider must not engage, or continue to engage, a person to carry out NDIS disability work if—

(a)the person holds an NDIS exclusion or an interstate NDIS exclusion; and

(b)the service provider knows, or ought reasonably to know, the person holds an NDIS exclusion or interstate NDIS exclusion.

Maximum penalty—200 penalty units or 2 years imprisonment.

56   Engaging person with suspended NDIS clearance or interstate NDIS clearance, or subject to interim bar, prohibited

(1)This section applies if—

(a)a person—

(i)holds an NDIS clearance that is suspended under division 6; or

(ii)holds an interstate NDIS clearance that is suspended under a corresponding law; or

(iii)is subject to an interim bar; and

(b)an NDIS service provider knows, or ought reasonably to know, the person’s NDIS clearance or interstate NDIS clearance is suspended or the interim bar is in effect for the person.

(2)The NDIS service provider must not—

(a)if the person is engaged by the service provider under an existing arrangement to carry out NDIS disability work for the service provider—allow the person to carry out work that is NDIS disability work; or

(b)otherwise—start to engage the person to carry out NDIS disability work.

Maximum penalty—200 penalty units or 2 years imprisonment.

Note—

See sections 84(3) and 113(3) for the restrictions on terminating a person’s employment solely or mainly because the person’s clearance is suspended or an interim bar is in effect for the person.

57   Holder of NDIS exclusion or interstate NDIS exclusion prohibited from carrying out NDIS disability work

A person who holds an NDIS exclusion or an interstate NDIS exclusion must not—

(a)start, or continue, an engagement to carry out NDIS disability work for an NDIS service provider; or

(b)carry out NDIS disability work as an NDIS sole trader.

Maximum penalty—500 penalty units or 5 years imprisonment.

Subdivision 2 State disability work

58   Funded service provider must prepare annual risk management strategy

(1)Each year, a funded service provider that engages 1 or more persons to carry out State disability work must develop and implement a written strategy (a risk management strategy) that complies with this section.

Maximum penalty—20 penalty units.

(2)A risk management strategy must include practices and procedures for engaging persons who carry out State disability work for the funded service provider in ways that—

(a)promote the wellbeing of people with disability; and

(b)protect people with disability from abuse, violence, neglect or exploitation.

(3)A regulation may prescribe other matters that must be included in a risk management strategy.

59   Funded service provider engaging person to carry out State disability work

(1)A funded service provider must not engage, or continue to engage, a person to carry out State disability work unless—

(a)the person holds a clearance; and

(b)the service provider has given the chief executive a notice, under subsections (3) and (4), about engaging the person to carry out State disability work.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—200 penalty units or 2 years imprisonment; or

(b)otherwise—100 penalty units.

(2)It is an aggravating circumstance for an offence against subsection (1) if—

(a)the person holds an exclusion and the funded service provider knows, or ought reasonably to know, the person holds the exclusion; or

(b)the funded service provider is given notice that the person’s clearance was cancelled on the person’s request under division 6.

(3)Before giving a notice mentioned in subsection (1)(b), the funded service provider must take reasonable steps to verify the person’s identity.

Examples of reasonable steps—

viewing the person’s clearance or driver licence that includes the person’s photograph

(4)A notice mentioned in subsection (1)(b) must be given in the approved form and in an approved way.

60   Engaging person with suspended clearance, or subject to interim bar, prohibited

(1)This section applies if—

(a)a person—

(i)holds a clearance that is suspended; or

(ii)is subject to an interim bar; and

(b)a funded service provider knows, or ought reasonably to know, the person’s clearance is suspended or the interim bar is in effect for the person.

(2)The funded service provider must not—

(a)if the person is engaged by the service provider under an existing arrangement to carry out State disability work for the service provider—allow the person to carry out work that is State disability work; or

(b)otherwise—start to engage the person to carry out State disability work.

Maximum penalty—200 penalty units or 2 years imprisonment.

Note—

See sections 84(3) and 113(3) for the restrictions on terminating a person’s employment solely or mainly because the person’s clearance is suspended or an interim bar is in effect for the person.

61   Carrying out State disability work without clearance prohibited

(1)A person must not start, or continue, an engagement to carry out State disability work for the department or a funded service provider unless the person holds a clearance.

Maximum penalty—

(a)if an aggravating circumstance applies to the offence—500 penalty units or 5 years imprisonment; or

(b)otherwise—100 penalty units.

(2)A person must not carry out State disability work as a State sole trader unless the person holds a clearance.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)It is an aggravating circumstance for an offence against subsection (1) if the person—

(a)holds an exclusion; or

(b)held a clearance that was cancelled on the person’s request under division 6; or

(c)is a disqualified person; or

(d)holds a negative notice under the Working with Children Act; or

(e)is subject to—

(i)offender reporting obligations; or

(ii)an offender prohibition order; or

(iii)an offender prohibition disqualification order; or

(iv)a sexual offender order; or

(f)is the respondent to an application for an offender prohibition order.

Subdivision 3 General

62   No contravention of particular requirements in absence of notice

(1)This section applies in relation to—

(a)a provision of this division about a person carrying out disability work; and

(b)a person who—

(i)held a clearance that was cancelled under division 6; or

(ii)held an interstate NDIS clearance that was cancelled under a corresponding law; or

(iii)holds an exclusion issued to the person after the person’s clearance was cancelled under division 6; or

(iv)holds an interstate NDIS exclusion issued to the person after the person’s interstate NDIS clearance was cancelled under a corresponding law.

(2)A court may not find that the person contravened the provision unless the person was given notice about the cancellation of the clearance or interstate NDIS clearance held by the person or the issue of the exclusion or interstate NDIS exclusion to the person.

63   Complying with requirement to end, or not start, person’s engagement

(1)This section applies if it would be an offence against a provision of this part for an NDIS service provider or funded service provider to engage, or continue to engage, a person (the engaged person) to carry out disability work.

(2)The NDIS service provider or funded service provider must comply with the provision despite another Act or law or any industrial award or agreement.

(3)The NDIS service provider or funded service provider does not incur any liability because, in complying with the provision, the service provider does not engage, or continue to engage, the engaged person to carry out disability work.

(4)A person whose clearance is suspended under division 6, or whose interstate NDIS clearance is suspended under a corresponding law, may be engaged by the NDIS service provider or funded service provider other than to carry out disability work until the suspension ends.

Division 3 Disability worker screening applications

Subdivision 1 Prohibited disability worker screening applications

64   Application by exclusion holder prohibited

(1)A person who holds an exclusion or an interstate NDIS exclusion must not make a disability worker screening application.

Maximum penalty—500 penalty units or 5 years imprisonment.

(2)An application made in contravention of subsection (1) has no effect.

Subdivision 2 Applications generally

65   Application related to NDIS disability work

A person may apply to the chief executive for a clearance if the person—

(a)is, or proposes to be—

(i)engaged by an NDIS service provider to carry out NDIS disability work; or

(ii)an NDIS sole trader; or

(iii)engaged by an entity prescribed by regulation for this section; and

(b)complies with each other criterion prescribed by regulation for this section.

66   Application related to State disability work

A person may apply to the chief executive for a clearance if the person is, or proposes to be—

(a)engaged by the department or a funded service provider to carry out State disability work; or

(b)a State sole trader; or

(c)engaged by an entity prescribed by regulation for this section.

67    Application combined with working with children check application

(1)A person may combine an application under section 65 or 66 with a working with children check application.

(2)An application made under subsection (1) is a combined application.

(3)This part applies to a combined application to the extent it is an application under section 65 or 66.

(4)If a combined application is made to the chief executive, the chief executive must give the information in the combined application, to the extent the information relates to the person’s working with children check application, to the chief executive (working with children).

68   Form of application

(1)A disability worker screening application must be—

(a)made in the approved form and in an approved way; and

(b)signed by the applicant; and

(c)accompanied by the fee prescribed by regulation for the application.

(2)The approved form must provide for the applicant—

(a)to provide proof of the applicant’s identity; and

(b)to consent to being screened under this part; and

(c)if the applicant is engaged, or proposes to be engaged, to carry out disability work—to provide information about the entity that has engaged, or proposes to engage, the applicant to carry out the disability work.

69   Chief executive may request further information

(1)After receiving a disability worker screening application, the chief executive may give the applicant a notice asking the applicant to give the chief executive, within a reasonable stated time—

(a)stated information the chief executive reasonably needs to establish the applicant’s identity; or

(b)stated information, including by way of a submission, about a stated matter that the chief executive reasonably believes is relevant to the application.

(2)A request under subsection (1) must state that, if the applicant does not comply with the request within the stated time, the application may be withdrawn.

70    Applicant must give notice of change in information

(1)This section applies if, before the chief executive decides a disability worker screening application—

(a)the applicant’s name or contact details as stated in the application change; or

(b)if the application states information about the applicant’s engagement with an NDIS service provider or funded service provider—the stated information changes; or

(c)another matter, prescribed by regulation for this section, changes in relation to the applicant.

(2)The applicant must give the chief executive a notice about the change, in the approved form and in an approved way, within 7 days after the change happens.

Maximum penalty—10 penalty units.

71   Notice of change in police information or risk assessment matter

(1)This section applies if, before the chief executive decides a disability worker screening application, the applicant becomes aware that—

(a)the police information about the applicant changes; or

(b)a risk assessment matter relating to the applicant changes.

(2)The applicant must immediately give the chief executive a notice about the change, in the approved form and in an approved way.

Maximum penalty—100 penalty units.

(3)For subsection (1)(a), the police information about a person changes if a criminal history event happens in relation to the person.

72   Expired clearance continues in force pending decision

(1)This section applies if an applicant holds a clearance that, but for this section, would end under section 101(2).

(2)The clearance remains in force—

(a)from when the clearance would have ended under section 101(2); and

(b)until—

(i)the applicant’s disability worker screening application is decided or withdrawn; or

(ii)the applicant stops being a person who may apply for a clearance under section 65 or 66.

73   Holder of expired interstate NDIS clearance taken to hold NDIS clearance pending decision

(1)This section applies if an applicant holds an interstate NDIS clearance that ends under a corresponding law because the term of the clearance has ended.

(2)The applicant is taken to hold an NDIS clearance—

(a)from the end of the term of the interstate NDIS clearance under the corresponding law; and

(b)until—

(i)the applicant’s disability worker screening application is decided or withdrawn; or

(ii)the applicant stops being a person who may apply for a clearance under section 65; or

(iii)an interim bar is imposed on the applicant.

Subdivision 3 Withdrawal of application

74   Notice of withdrawal

(1)If the chief executive withdraws a disability worker screening application under this subdivision before it is decided, the chief executive must give the applicant a notice that states—

(a)the application is withdrawn; and

(b)the reason for the withdrawal.

(2)The chief executive must also give a notice mentioned in subsection (1) to each notifiable person for the applicant.

75   Withdrawal by applicant

(1)The applicant may ask the chief executive to withdraw the applicant’s disability worker screening application at any time before it is decided.

(2)The request may be made orally or in writing.

(3)The chief executive must withdraw the application unless the chief executive refuses to withdraw the application under section 76.

76   Refusal to withdraw by chief executive

(1)The chief executive may refuse to withdraw an applicant’s disability worker screening application if—

(a)an interim bar is in effect for the applicant; or

(b)an interstate NDIS clearance held by the applicant is suspended under a corresponding law; or

(c)the applicant was previously issued an exclusion or an interstate NDIS exclusion; or

(d)the chief executive, in relation to deciding the application—

(i)has given, or is proposing to give, the applicant a show cause notice under section 95; or

(ii)reasonably suspects a risk assessment of the applicant will demonstrate that the applicant poses an unacceptable risk of harm to people with disability.

(2)If the chief executive refuses to withdraw the application, the chief executive must give the applicant a notice that states the reasons for the refusal.

77   Request to withdraw combined application

(1)This section applies if the applicant made a combined application.

(2)The applicant may combine a request to withdraw the applicant’s disability worker screening application under section 75 with a notice withdrawing the applicant’s working with children check application.

(3)A request made under subsection (2) is a combined withdrawal request.

Note—

The request may be made orally or in writing. See—

(a)section 75(2); and

(b)the Working with Children Act, section 196(3).

(4)This subdivision applies to a combined withdrawal request to the extent it is a request under section 75.

(5)If a combined withdrawal request is made to the chief executive, the chief executive must give a notice about the combined withdrawal request to the chief executive (working with children).

78   Withdrawal because identity can not be established

The chief executive must withdraw a disability worker screening application if—

(a)the chief executive gives the applicant a notice under section 69(1)(a); and

(b)the notice includes the warning mentioned in section 69(2); and

(c)the chief executive can not establish the applicant’s identity with certainty.

79   Withdrawal because of failure to comply with particular requests

The chief executive may withdraw a disability worker screening application if—

(a)the chief executive gives the applicant—

(i)a notice under section 69(1)(b) asking the applicant to provide stated information; or

(ii)a notice under section 138U or 138X asking the applicant to give the consent, or take the other action, stated in the notice; and

(b)the notice includes a warning that, if the applicant does not comply with the notice, the application may be withdrawn; and

(c)the applicant does not comply with the notice.

80   Withdrawal of NDIS worker screening application in particular circumstances

The chief executive must withdraw an NDIS worker screening application if the chief executive is satisfied—

(a)that, before the application was made, the applicant applied for an interstate NDIS clearance under a corresponding law and that application has not been decided or withdrawn; or

(b)since the application was made, the applicant has been issued an interstate NDIS exclusion.

Subdivision 4 Interim bar for particular applicants

81   Application of subdivision

(1)This subdivision applies if any of the following happens in relation to an applicant—

(a)the applicant—

(i)is charged with a disqualifying offence that has not been dealt with; and

(ii)was an adult when the offence is alleged to have been committed;

(b)the applicant becomes the subject of a banning order made for a reason that, in the chief executive’s opinion, is relevant to whether the applicant poses a risk of harm to people with disability;

(c)the chief executive, in deciding the applicant’s application, reasonably suspects a risk assessment of the applicant will demonstrate that the applicant poses an unacceptable risk of harm to people with disability.

(2)However, this subdivision does not apply in relation to an applicant who holds a clearance that is suspended under division 6.

Note—

See sections 56, 60 and 113 in relation to the effect of the suspension of a person’s clearance.

82   Chief executive must impose interim bar on applicant

(1)The chief executive must impose an interim bar on the applicant.

(2)The chief executive imposes an interim bar by giving the applicant a notice that states—

(a)the interim bar is imposed on the applicant; and

(b)the reason for imposing the interim bar; and

(c)the effect of the interim bar.

83   Notifiable persons and potential employers notified about interim bar

(1)The chief executive must give each notifiable person for the applicant a notice that states—

(a)the applicant has made a disability worker screening application that has not been decided; and

(b)an interim bar has been imposed on the applicant; and

(c)the effect of the interim bar; and

(d)an employer of the applicant who is given notice about the interim bar under this section must not terminate the applicant’s employment solely or mainly because the interim bar is in effect for the person.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.

(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the applicant.

84   Effect of interim bar

(1)This section applies if the chief executive imposes an interim bar on an applicant under section 82.

(2)While the interim bar is in effect, the applicant must not—

(a)start an engagement to carry out disability work; or

(b)if, when the interim bar is imposed, the applicant is engaged to carry out disability work for an NDIS service provider, funded service provider or the department—carry out work for the service provider or department that is disability work; or

(c)carry out disability work as an NDIS sole trader or State sole trader.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)An employer of the applicant who is given notice about the interim bar under section 83 must not terminate the applicant’s employment solely or mainly because the interim bar is in effect for the applicant.

Notes—

1See also sections 56 and 60 in relation to NDIS service providers or funded service providers allowing the applicant to carry out disability work.

2See section 138ZZB in relation to notices under section 83 if the NDIS commission communicates the relevant information to the notifiable person.

85   When interim bar ends

(1)An interim bar imposed on an applicant ends if—

(a)the applicant’s disability worker screening application is—

(i)decided under division 4; or

(ii)withdrawn under subdivision 3; or

(b)the chief executive decides to end the interim bar under subsection (2).

(2)The chief executive may decide to end an interim bar if the chief executive reasonably suspects that a risk assessment of the applicant will demonstrate that the applicant does not pose an unacceptable risk of harm to people with disability.

(3)If an interim bar has been imposed on the applicant for at least 6 months, the applicant may apply to the chief executive to end the interim bar.

(4)The application must be made in the approved form and in an approved way.

(5)The chief executive is not required to decide the applicant’s application to end the interim bar if—

(a)a charge for an offence against the person has not been dealt with; or

(b)the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended.

(6)The chief executive may decide the applicant’s application to end the interim bar—

(a)by deciding to end the interim bar under subsection (2); or

(b)if the applicant has asked the chief executive to withdraw the applicant’s disability worker screening application under section 75—by withdrawing the application; or

(c)by refusing to end the interim bar.

(7)If the chief executive decides to refuse to end the interim bar, the chief executive must give the applicant a notice that states—

(a)the decision and the reasons for the decision; and

(b)the relevant review and appeal information.

Division 4 Dealing with and deciding application

Subdivision 1 Preliminary

86   Application of division

This division applies if a person made a disability worker screening application and the application has not been withdrawn.

87   Dealing with application

(1)The chief executive must—

(a)consider the person’s application and the information available to the chief executive about the person; and

(b)if section 89 or 90 apply to the person—decide the application under that section; and

(c)if section 91 or 92 apply to the person—conduct a risk assessment of the person before deciding the application under that section.

(2)However, the chief executive is not required to decide the person’s application if—

(a)a charge for an offence against the person has not been dealt with; or

(b)the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended.

88   Information to be considered

(1)The chief executive must consider each of the following types of information for a person of which the chief executive is aware, if any—

(a)police information;

(b)domestic violence information;

(c)disciplinary information;

(d)NDIS disciplinary or misconduct information;

(e)information about—

(i)whether the person holds, or has previously held, a clearance, interstate NDIS clearance, exclusion or interstate NDIS exclusion; or

(ii)if the person has previously held a clearance or interstate NDIS clearance—whether the clearance was suspended at any time or cancelled.

(2)The chief executive may consider other information about the person that is relevant to whether the person poses a risk of harm to people with disability.

Subdivision 2 Deciding application

89   Deciding application—no relevant information

The chief executive must issue a clearance to the person if the chief executive is not aware of any information mentioned in section 88 about the person.

90   Deciding application—disqualified person

(1)This section applies if the chief executive is aware the person is a disqualified person.

(2)The chief executive must issue an exclusion to the person.

91   Deciding application—exceptional circumstances for adult offender

(1)This section applies if the chief executive is aware—

(a)the person has a conviction for a serious offence and was an adult when the offence was committed; or

(b)the person—

(i)has been charged with a disqualifying offence or serious offence that has not been dealt with; and

(ii)was an adult when the offence is alleged to have been committed.

Note—

See section 95 for the requirement for the chief executive to give the person a show cause notice before deciding the person’s application if this section applies.

(2)The chief executive must issue the person an exclusion.

(3)However, the chief executive may issue the person a clearance if satisfied there are exceptional circumstances such that the person does not pose an unacceptable risk of harm to people with disability.

92   Deciding application—general assessment of risk posed

(1)This section applies if sections 89, 90 and 91 do not apply to the person.

(2)The chief executive must—

(a)if satisfied the person does not pose an unacceptable risk of harm to people with disability—issue a clearance to the person; or

(b)if satisfied the person poses an unacceptable risk of harm to people with disability—issue an exclusion to the person.

Subdivision 3 Assessing risk person poses to people with disability

93   How chief executive conducts risk assessment

(1)The chief executive conducts a risk assessment of a person by—

(a)considering the information about the person obtained by the chief executive under this part; and

(b)deciding whether the person poses an unacceptable risk of harm to people with disability.

(2)In conducting the risk assessment, the chief executive—

(a)must consider information as required under this division; and

(b)may decide the person poses an unacceptable risk of harm to people with disability—

(i)if satisfied there is a real and appreciable risk that the person might cause harm to people with disability; and

(ii)without needing to be satisfied it is likely the person will cause the harm.

94   Matters to consider

(1)This section applies if the chief executive is aware of conduct of the person (the person’s offending conduct) that—

(a)involved the commission of an offence; or

(b)was the subject of a complaint, allegation or investigation under a law; or

(c)is otherwise relevant to whether the person poses a risk of harm to people with disability.

(2)The chief executive must consider the following matters—

(a)the nature, gravity and circumstances of the person’s offending conduct;

(b)how the person’s offending conduct is relevant to disability work;

(c)how long ago the person’s offending conduct occurred;

(d)if the person’s offending conduct was committed against another person (the victim)—

(i)the victim’s vulnerability at the time of the conduct; and

(ii)the person’s relationship to, or position of authority over, the victim at the time of the conduct;

(e)whether the person’s offending conduct indicates a pattern of concerning behaviour;

(f)the person’s conduct since the offending conduct;

(g)any other circumstances relevant to the person’s offending conduct.

95   Action before making adverse decision

(1)This section applies if—

(a)section 91 applies to the person; or

(b)the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability.

(2)Before deciding the person’s application, the chief executive must—

(a)give the person a notice (a show cause notice) that complies with section 96; and

(b)consider any submissions the person makes in response to the show cause notice.

96   Requirements for show cause notice

A show cause notice given to a person under section 95 must—

(a)state the following information about the person of which the chief executive is aware—

(i)police information;

(ii)domestic violence information;

(iii)disciplinary information;

(iv)NDIS disciplinary or misconduct information;

(v)other information that the chief executive reasonably believes is relevant to whether the person poses a risk of harm to people with disability; and

(b)state that, because of the circumstances mentioned in section 95(1), the chief executive proposes to issue the person an exclusion unless the chief executive is satisfied that—

(i)if section 91 applies to the person—there are exceptional circumstances; and

(ii)the person does not pose an unacceptable risk of harm to people with disability; and

(c)invite the person to make submissions to the chief executive about—

(i)if section 91 applies to the person—whether there are exceptional circumstances; and

(ii)why the chief executive should not issue an exclusion to the person; and

(d)state the period in which the person may make the submissions, which must be at least 7 days after the chief executive gives the notice to the person.

Subdivision 4 Steps after application decided

97   Application of subdivision

This subdivision applies if the chief executive decides a person’s disability worker screening application.

98   Issuing clearance and clearance card

(1)If the chief executive decides to issue a clearance to the person, the chief executive must—

(a)give the person a notice that states the chief executive has decided—

(i)if the person made an NDIS worker screening application—to issue the person an NDIS clearance; or

(ii)if the person made a State disability worker screening application—to issue the person a State clearance; and

(b)issue a clearance card for the clearance to the person.

(2)A clearance card, for a clearance issued to a person, is a document, in the form of a card, that evidences that the clearance has been issued to the person.

99   Issuing exclusion

If the chief executive decides to issue an exclusion to the person, the chief executive must give the person a notice that states—

(a)the chief executive has decided—

(i)if the person made an NDIS worker screening application—to issue the person an NDIS exclusion; or

(ii)if the person made a State disability worker screening application—to issue the person a State exclusion; and

(b)the reasons for the decision; and

(c)the relevant review and appeal information; and

(d)that it is an offence against this Act for a person who holds an exclusion to—

(i)make a disability worker screening application; or

(ii)start or continue to be engaged in carrying out disability work; or

(iii)carry out NDIS disability work as an NDIS sole trader or State disability work as a State sole trader.

100   Notifiable persons and potential employers notified about decision

(1)The chief executive must give each notifiable person for the person a notice that states whether the person was issued—

(a)if the person made an NDIS worker screening application—an NDIS clearance or NDIS exclusion; or

(b)if the person made a State disability worker screening application—a State clearance or State exclusion.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.

(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the person.

101   Term of clearance

(1)The term of a clearance starts—

(a)when the clearance is issued; or

(b)if the person holds another clearance with a term that ends on a later day—immediately after the existing clearance ends.

(2)Unless it is cancelled earlier under division 6, the term of a clearance ends—

(a)for an NDIS clearance—5 years after it starts under subsection (1); or

(b)for a State clearance—3 years after it starts under subsection (1).

102   Term of exclusion

An exclusion remains in force unless it is cancelled under division 7.

Division 5 General provisions about clearances

Subdivision 1 Change in information

103   Clearance holder to notify if no longer carrying out work as volunteer or on unpaid basis

(1)This section applies if—

(a)a person holds a clearance that is not suspended; and

(b)during the term of the clearance, the person is or was—

(i)engaged to carry out disability work only as a volunteer; or

(ii)carrying out disability work as an NDIS sole trader or State sole trader only on an unpaid basis; and

(c)either of the following changes happens—

(i)the person is engaged to carry out disability work other than as a volunteer;

(ii)the person starts carrying out disability work as an NDIS sole trader or State sole trader for financial reward.

(2)The person must, within 14 days after the change happens—

(a)give the chief executive a notice, in the approved form and in an approved way, about the change; and

(b)if the person is required to pay the prescribed application fee under subsection (3)—pay the prescribed application fee to the chief executive.

Maximum penalty—10 penalty units.

Note—

See section 106 in relation to the chief executive issuing a replacement clearance card because of the change.

(3)The person must pay the prescribed application fee if the disability worker screening application in relation to which the clearance was issued was made on the basis that the person was—

(a)engaged, or to be engaged, to carry out disability work only as a volunteer; or

(b)carrying out, or proposing to carry out, disability work as an NDIS sole trader or State sole trader only on an unpaid basis.

(4)In this section—

prescribed application fee means the fee prescribed by regulation for a disability worker screening application made by a person—

(a)for a person who gives a notice under subsection (2) for a change mentioned in subsection (1)(c)(i)—engaged to carry out disability work other than as a volunteer; or

(b)for a person who gives a notice under subsection (2) for a change mentioned in subsection (1)(c)(ii)—carrying out disability work as an NDIS sole trader or State sole trader for financial reward.

unpaid basis, for carrying out disability work, means the work is carried out other than for financial reward.

104    Clearance holder to notify change in other information

(1)A person who holds a clearance must immediately give the chief executive a notice, in the approved form and in an approved way, if the person becomes aware that—

(a)the police information about the person changes; or

(b)a risk assessment matter relating to the person changes.

Maximum penalty—100 penalty units.

(2)For subsection (1), the police information about a person changes if a criminal history event happens in relation to the person.

(3)Also, a person who holds a clearance must, within 14 days after any of the following matters change, give the chief executive a notice, in the approved form and in an approved way, about the change—

(a)the person’s name;

(b)the person’s contact details;

(c)another matter about the person, other than a matter to which section 103 or subsection (1) applies, prescribed by regulation for this subsection.

Maximum penalty—10 penalty units.

Subdivision 2 Replacement of clearance card

105   Replacement of lost or stolen card

(1)If a person’s clearance card is lost or stolen (the lost or stolen card), the person must, within 14 days after the loss or theft—

(a)give the chief executive a notice about the loss or theft in the approved form and in an approved way; and

(b)either—

(i)apply for a replacement clearance card; or

(ii)ask the chief executive under section 124 to cancel the person’s clearance.

Maximum penalty—10 penalty units.

(2)An application under subsection (1)(b)(i) must be—

(a)made in the approved form and in an approved way; and

(b)accompanied by the fee prescribed by regulation for the application.

(3)The chief executive must—

(a)cancel the lost or stolen card; and

(b)if the person applied for a replacement clearance card under subsection (1)(b)(i)—issue a replacement clearance card to the person.

106   Replacement for change of name, contact details or volunteer or unpaid status

(1)This section applies if a person who holds a clearance gives the chief executive notice that—

(a)the person’s name or contact details have changed; or

(b)a change mentioned in section 103(1)(c) has happened.

(2)If the chief executive considers it is appropriate to do so because of the change, the chief executive may issue a replacement clearance card to the person.

(3)If the chief executive issues a replacement clearance card to the person, the chief executive must cancel the person’s previously held clearance card.

107    Requirement to return replaced card

(1)This section applies if the chief executive issues a clearance card (the replacement card) to a person who holds a clearance to replace a clearance card (the original card) previously issued to the person.

(2)If the replacement card is issued other than because the person’s original card expired or was lost or stolen, the person must give the original card to the chief executive within 14 days after the replacement card is issued.

Maximum penalty—10 penalty units.

(3)If the person’s original card was lost or stolen and the person regains possession of it, the person must give the original card to the chief executive within 7 days after regaining possession of it.

Maximum penalty—10 penalty units.

(4)A person does not commit an offence against subsection (2) or (3) if the person has a reasonable excuse.

Division 6 Reassessment, suspension or cancellation of clearance

Subdivision 1 Reassessment of risk of harm to people with disability

108   Reassessment of risk of harm posed by holder of clearance

(1)The chief executive may conduct a risk assessment of a person who holds a clearance if the chief executive becomes aware of information about the person that—

(a)was not known to the chief executive when the decision to issue the clearance was made; and

(b)in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability.

(2)The chief executive must conduct a risk assessment of a person, under subsection (1) or otherwise, before the chief executive makes a decision under this division about whether the person poses an unacceptable risk of harm to people with disability.

109   Application of div 4, sdiv 3 to conducting risk assessment

(1)Division 4, subdivision 3 applies with necessary changes for conducting a risk assessment of a person under section 108.

(2)Without limiting subsection (1), section 95 applies if, under this division, the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability.

Note—

Section 95 requires the chief executive to give a person a show cause notice, and invite the person to make submissions, before the chief executive decides the person poses an unacceptable risk of harm to people with disability.

Subdivision 2 Suspension of clearance

110   Application of subdivision

This subdivision applies in relation to a person who holds a clearance if—

(a)the person—

(i)is charged with a disqualifying offence that has not been dealt with; and

(ii)was an adult when the offence is alleged to have been committed; or

(b)the person becomes the subject of a banning order made for a reason that, in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability; or

(c)the chief executive—

(i)is conducting a risk assessment of the person under subdivision 1; and

(ii)reasonably suspects the assessment will demonstrate that the person poses an unacceptable risk of harm to people with disability.

111   Chief executive must suspend clearance

(1)The chief executive must suspend the person’s clearance by giving the person a notice (a suspension notice) about the suspension.

(2)The suspension notice must state—

(a)the person’s clearance is suspended; and

(b)the reason for the suspension; and

(c)how long the suspension will continue; and

(d)the effect of the suspension; and

(e)under section 128, the person must return the person’s clearance card to the chief executive immediately after the notice is given, unless the person has a reasonable excuse; and

(f)the relevant review and appeal information.

112   Notifiable persons and potential employers notified about suspension

(1)The chief executive must give each notifiable person for the person a notice that states—

(a)the person’s clearance is suspended; and

(b)how long the suspension will continue; and

(c)the effect of the suspension; and

(d)it is an offence for an NDIS service provider or funded service provider to allow the person to carry out disability work while the clearance is suspended; and

(e)an employer of the person who is given notice about the suspension of the person’s clearance under this section must not terminate the person’s employment solely or mainly because of the suspension.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.

(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the person.

113   Effect of suspension of clearance

(1)This section applies while the person’s clearance is suspended.

(2)The person must not—

(a)start an engagement to carry out disability work; or

(b)if the person is engaged to carry out disability work for an NDIS service provider, funded service provider or the department—carry out work for the service provider or department that is disability work; or

(c)carry out disability work as an NDIS sole trader or State sole trader.

Maximum penalty—500 penalty units or 5 years imprisonment.

(3)An employer of the person who is given notice about the suspension of the person’s clearance under section 112 must not terminate the person’s employment solely or mainly because of the suspension.

Notes—

1See also sections 56 and 60 in relation to NDIS service providers or funded service providers allowing the person to carry out disability work.

2See section 138ZZB in relation to notices under section 112 if the NDIS commission communicates the relevant information to the notifiable person.

(4)The person’s clearance continues in force even if it would otherwise end under section 101(2).

114   When suspension of clearance ends

The suspension of the person’s clearance ends if—

(a)the chief executive decides to cancel the clearance under section 115; or

(b)the suspension ends under section 118; or

(c)the clearance is otherwise cancelled under this division.

115   Deciding whether to cancel suspended clearance

(1)The chief executive may decide whether or not to cancel the person’s suspended clearance—

(a)on the chief executive’s own initiative; or

(b)in response to an application made by the person under section 116.

(2)The chief executive must cancel the person’s clearance if the chief executive decides the person poses an unacceptable risk of harm to people with disability.

Note—

See sections 108(2) and 109 in relation to making a decision under this section.

(3)Otherwise, the chief executive may decide to—

(a)not cancel the person’s clearance; and

(b)end the suspension of the clearance.

116    Application to chief executive to end suspension of clearance

(1)If the person’s clearance has been suspended for at least 6 months, the person may apply to the chief executive to end the suspension of the clearance.

(2)The application must be made in the approved form and in an approved way.

(3)The chief executive is not required to decide the person’s application if—

(a)a charge for an offence against the person has not been dealt with; or

(b)the chief executive is aware that an incident involving the person, or an allegation or complaint about the person’s conduct, that is relevant to whether the person poses a risk of harm to people with disability is being investigated and the investigation has not ended.

(4)The chief executive may decide the application—

(a)by deciding under section 115 whether or not to cancel the person’s clearance; or

(b)by deciding—

(i)not to make a decision under section 115; and

(ii)to continue the suspension of the person’s clearance.

(5)If the chief executive makes a decision mentioned in subsection (4)(b), the chief executive must give the person a notice that states—

(a)the decision and reasons for the decision; and

(b)the relevant review and appeal information.

117   Chief executive decides to cancel suspended clearance

(1)If the chief executive decides to cancel the person’s clearance under section 115, the chief executive must—

(a)cancel the clearance; and

(b)issue an exclusion to the person as follows—

(i)for a person who held an NDIS clearance—an NDIS exclusion;

(ii)for a person who held a State clearance—a State exclusion; and

(c)give the person a notice that states—

(i)the decision and reasons for the decision; and

(ii)that, if the person has not returned the person’s clearance card to the chief executive, under section 128, the person must return the person’s clearance card to the chief executive immediately, unless the person has a reasonable excuse; and

(iii)the relevant review and appeal information; and

(iv)the circumstances in which the person may apply under section 130 for the exclusion to be cancelled; and

(d)give each notifiable person for the person, and each potential employer of the person given notice about the suspension of the clearance under section 112(2), a notice that states—

(i)the person’s clearance has been cancelled; and

(ii)the person has been issued an exclusion; and

(iii)it is an offence for an NDIS service provider or funded service provider to engage, or to continue to engage, the person to carry out disability work.

Note—

See section 138ZZB in relation to notices under this paragraph if the NDIS commission communicates the relevant information to the notifiable person.

(2)Also, the chief executive may give a notice mentioned in subsection (1)(d) to another potential employer of the person.

118   Chief executive decides not to cancel suspended clearance

(1)This section applies if, under section 115, the chief executive decides not to cancel the person’s clearance and end the suspension of the clearance.

(2)The suspension of the person’s clearance ends.

(3)The chief executive must—

(a)give a notice that states the suspension of the person’s clearance has ended to—

(i)the person; and

(ii)each notifiable person for the person; and

(iii)each potential employer for the person who was given a notice about the suspension under section 112(2); and

(b)if the chief executive has the person’s clearance card and the term of the person’s clearance has not ended under section 101(2)—return the person’s clearance card to the person.

Subdivision 3 Cancelling clearance by chief executive

119   Cancelling clearance—disqualified person

(1)The chief executive must cancel a person’s clearance if the person becomes a disqualified person.

(2)This section applies whether or not the person’s clearance is suspended under section 111.

120   Cancelling clearance—wrong or incomplete information

(1)The chief executive must cancel a person’s clearance if the chief executive—

(a)becomes aware the decision to issue the clearance was based on information that was wrong or incomplete; and

(b)decides the person poses an unacceptable risk of harm to people with disability.

Note—

See sections 108(2) and 109 in relation to making a decision under this section.

(2)A risk assessment of the person conducted before the chief executive makes a decision mentioned in subsection (1)(b) must include consideration of the correct or complete information.

(3)This section applies whether or not the person’s clearance is suspended under section 111.

121    Cancelling clearance—new relevant information

(1)The chief executive must cancel a person’s clearance if the chief executive—

(a)becomes aware of information that—

(i)was not known to the chief executive when the decision to issue the clearance was made; and

(ii)in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability; and

(b)has not suspended the person’s clearance under section 111; and

(c)decides the person poses an unacceptable risk of harm to people with disability.

Note—

See sections 108(2) and 109 in relation to making a decision under this section.

(2)A risk assessment of the person conducted before the chief executive makes a decision mentioned in subsection (1)(c) must include consideration of the information mentioned in subsection (1)(a).

122   Action after decision

If the chief executive is required, or decides, to cancel a person’s clearance under this subdivision, the chief executive must—

(a)cancel the person’s clearance; and

(b)issue an exclusion to the person as follows—

(i)for a person who held an NDIS clearance—an NDIS exclusion;

(ii)for a person who held a State clearance—a State exclusion; and

(c)give the person a notice that states—

(i)the decision to cancel the clearance and issue the exclusion and the reasons for the decision; and

(ii)under section 128, the person must return the person’s clearance card to the chief executive immediately, unless the person has a reasonable excuse; and

(iii)the relevant review and appeal information; and

(iv)the circumstances in which the person may apply under section 130 for the exclusion to be cancelled.

123   Notifiable persons and potential employers notified about cancellation

(1)If the chief executive cancels a person’s clearance under this subdivision, the chief executive must give each notifiable person for the person a notice that states—

(a)the person’s clearance has been cancelled; and

(b)the person has been issued an exclusion; and

(c)it is an offence for an NDIS service provider or funded service provider to engage, or to continue to engage, the person to carry out disability work.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.

(2)Also, the chief executive may give a notice mentioned in subsection (1) to a potential employer of the person.

Subdivision 4 Cancelling clearance on holder’s request

124   Request to cancel clearance

(1)A person may ask the chief executive to cancel the person’s clearance.

(2)The request must be made in the approved form and in an approved way.

125   Refusal to cancel clearance

(1)The chief executive must refuse a person’s request under section 124 if—

(a)the person’s clearance is suspended; or

(b)the chief executive is conducting, or proposes to conduct, a risk assessment of the person under subdivision 1; or

(c)the chief executive is aware the person has become a disqualified person.

(2)The chief executive must give the person a notice that states—

(a)the chief executive is refusing the request to cancel the person’s clearance; and

(b)the reasons for the refusal.

126   Cancellation of clearance

(1)This section applies if a request under section 124 is not refused by the chief executive under section 125.

(2)The chief executive must—

(a)cancel the person’s clearance; and

(b)give the person a notice that states—

(i)the clearance has been cancelled; and

(ii)under section 128, the person must return the person’s clearance card to the chief executive immediately after the notice is given, unless the person has a reasonable excuse; and

(iii)it is an offence for the person to be engaged in carrying out disability work, or to carry out disability work as an NDIS sole trader or State sole trader, other than as allowed under division 2.

127   Notifiable persons and potential employers notified about cancellation

(1)If the chief executive cancels a person’s clearance under section 126, the chief executive must give a notice to each notifiable person for the person that states—

(a)the person’s clearance has been cancelled on the person’s request; and

(b)it is an offence for an NDIS service provider or funded service provider to engage, or continue to engage, the person in disability work other than as allowed under division 2.

Note—

See section 138ZZB in relation to notices under this section if the NDIS commission communicates the relevant information to the notifiable person.

(2)Also, the chief executive may give a potential employer for the person a notice mentioned in subsection (1).

Subdivision 5 Return of clearance card

128   Requirement to return suspended or cancelled card

(1)This section applies to a person if the chief executive gives the person a notice that states the person’s clearance is suspended or cancelled.

(2)The person must return the person’s clearance card for the clearance to the chief executive immediately after the notice is given, unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

Division 7 Cancellation of exclusion

129    Application of div 4, sdiv 3 to conducting risk assessment

(1)The chief executive must conduct a risk assessment of a person before the chief executive makes a decision under this division about whether the person poses an unacceptable risk of harm to people with disability.

(2)Division 4, subdivision 3 applies for conducting the risk assessment with necessary changes.

(3)Without limiting subsection (2), section 95 applies if, under this division, the chief executive is proposing to decide that the person poses an unacceptable risk of harm to people with disability.

Note—

Section 95 requires the chief executive to give a person a show cause notice, and invite the person to make submissions, before the chief executive decides the person poses an unacceptable risk of harm to people with disability.

130   Application to cancel exclusion

(1)A person who holds an exclusion, other than a disqualified person, may apply to the chief executive to cancel the exclusion if—

(a)the application is made more than 5 years after—

(i)the exclusion was issued; and

(ii)if the person has previously applied to cancel the exclusion under this section—the most recent previous application was decided; or

(b)a court decides an appeal, under section 138K, and sets aside a decision that information is investigative information about the person; or

(c)there has been a significant or exceptional change in the person’s circumstances since the exclusion was issued.

Example of a significant or exceptional change in a person’s circumstances—

a person’s conviction for an offence is quashed

(2)If the exclusion was issued because the person is a disqualified person, the person may apply to the chief executive to cancel the exclusion if the person is no longer a disqualified person.

131   Form of application

(1)The application must be—

(a)made in the approved form and in an approved way; and

(b)signed by the person; and

(c)accompanied by the fee prescribed by regulation for the application.

(2)The person may state anything in the application that the person considers is relevant to the chief executive’s decision, including, for example, a change in the person’s circumstances since the exclusion was issued.

132   Cancellation on application

(1)This section applies if a person made an application under section 130.

(2)The chief executive may cancel the person’s exclusion if the chief executive is satisfied the person does not pose an unacceptable risk of harm to people with disability.

Note—

See section 129 in relation to making a decision under this section.

133   Other cancellation of exclusion

(1)The chief executive may act under this section whether or not a person made an application under section 130.

(2)The chief executive may cancel the person’s exclusion if the chief executive is satisfied the person does not pose an unacceptable risk of harm to people with disability and any of the following apply—

(a)the exclusion was issued because the person was a disqualified person and the person is no longer a disqualified person;

(b)the chief executive is satisfied the decision to issue the exclusion was based on wrong or incomplete information;

(c)the chief executive becomes aware of information (further information) that—

(i)was not known to the chief executive when the decision to issue the exclusion was made; and

(ii)in the chief executive’s opinion, is relevant to whether the person poses a risk of harm to people with disability.

(3)A risk assessment of the person conducted before the chief executive makes a decision for a reason mentioned in subsection (2)(b) or (c) must include consideration of the correct and complete information or the further information.

Note—

See section 129 in relation to making a decision under this section.

134   Action after decision to cancel exclusion

(1)If the chief executive decides to cancel a person’s exclusion under this division, the chief executive must—

(a)cancel the exclusion; and

(b)give the person a notice about the cancellation.

(2)The chief executive may decide a disability worker screening application made by the person after the exclusion is cancelled without conducting a risk assessment of the person unless the chief executive is aware of information that—

(a)was not known to the chief executive when the decision to cancel the exclusion was made; and

(b)is relevant to whether the person poses a risk of harm to people with disability.

135   Notice of decision to refuse application

(1)This section applies if—

(a)a person made an application under section 130; and

(b)the chief executive decided to refuse the application.

(2)The chief executive must give the person a notice that states—

(a)the application has been refused and the person’s exclusion continues in force; and

(b)the reasons for the chief executive’s decision to refuse the application; and

(c)the relevant review and appeal information.

Division 8 Provisions about obtaining, giving and dealing with information

Subdivision 1 Preliminary

136   Meaning of relevant person

(1)For this division, each of the following persons is a relevant person—

(a)a person who holds a clearance;

(b)a person who has made a disability worker screening application that has not been decided or withdrawn;

(c)a person to whom all of the following apply—

(i)the person has purported to make a disability worker screening application;

(ii)the application has not been properly made, including, for example, because the application was not accompanied by the fee prescribed by regulation for the application;

(iii)the application, as made, contains sufficient information for the chief executive to establish the person’s identity with certainty;

(d)a person who has made an application under section 130 to cancel the person’s exclusion and the application has not been decided or withdrawn;

(e)a person who holds an exclusion if—

(i)there is an undecided appeal, review or application under section 138J(2), 138L(2), 138ZV or 138ZW relating to the exclusion; or

(ii)there is an undecided appeal against a decision on an appeal or review under section 138J(2) or 138ZW relating to the exclusion.

(2)Also, a person is a relevant person for this division if the chief executive is aware that—

(a)the person holds an interstate NDIS clearance; or

(b)the person has made an application under a corresponding law that corresponds to an NDIS worker screening application and an NDIS worker screening unit has asked the chief executive for information about the person in relation to deciding the application.

(3)In this section—

undecided, in relation to an appeal, review or application, means the appeal, review or application has been started or made but not decided.

137    Chief executive may disclose information about relevant persons

(1)This section applies if the chief executive may ask an entity for information about a relevant person under this division.

(2)The chief executive may include information that is reasonably necessary to identify the relevant person in the request.

(3)The chief executive may also give information about the identity of a relevant person to an entity that is authorised, under this division or another law, to give information about relevant persons to the chief executive—

(a)to advise the entity whether or not a particular person is a relevant person; or

(b)from time to time to advise the entity about the persons who are relevant persons at a particular time.

138    Information that need not be given

(1)This section applies if, under another provision of this division, an entity is required to give information to the chief executive and the entity reasonably believes that giving the information may do any of the following—

(a)prejudice the investigation of a contravention or possible contravention of the law in a particular case;

(b)enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of the law, to be ascertained;

(c)prejudice the effectiveness of a lawful method or procedure for preventing, detecting, investigating or dealing with a contravention or possible contravention of the law;

(d)prejudice a matter before a court, including, for example—

(i)a matter or an investigation before the Mental Health Court; and

(ii)a prosecution;

(e)prejudice a matter before the Mental Health Review Tribunal;

(f)endanger a person’s life or physical safety;

(g)adversely affect a person’s mental health.

(2)Despite the other provision, the entity is not required to—

(a)give the information to the chief executive; or

(b)disclose the existence of the information to the chief executive.

Subdivision 2 Obtaining police information and related information from police commissioner

138A    Provision about police commissioner’s obligation to provide information

A requirement under this subdivision for the police commissioner to give the chief executive information about a relevant person applies—

(a)only to information in the commissioner’s possession or to which the commissioner has access; and

(b)despite the Youth Justice Act 1992, part 9.

138B    Meaning of criminal history event

(1)Any of the following events that happen in relation to a person is a criminal history event—

(a)the person acquires a criminal history;

(b)the person’s criminal history changes;

(c)the police commissioner decides, under section 138I, that information about the person is investigative information;

(d)the person becomes subject to—

(i)offender reporting obligations; or

(ii)an offender prohibition order; or

(iii)an offender prohibition disqualification order;

(e)the person is named as the respondent for an application for an offender prohibition order;

(f)the person is the subject of an application for an offender prohibition disqualification order.

(2)For subsection (1)(c), it does not matter when the conduct related to the investigative information happened or is alleged to have happened.

138C    Chief executive’s request for police information about relevant person

(1)The chief executive may ask the police commissioner for police information about a relevant person.

(2)The police commissioner must comply with a request under subsection (1) by—

(a)giving the chief executive the police information that exists about the relevant person; or

(b)telling the chief executive there is no police information about the relevant person.

(3)If there is police information about the relevant person, the chief executive may ask the police commissioner for—

(a)a brief description of the circumstances of a conviction, charge or investigative information mentioned in the police information; and

(b)a section 93A transcript relating to an offence mentioned in the police information; and

(c)the information mentioned in section 138F(1) about an offender prohibition order or offender prohibition disqualification order mentioned in the police information; and

(d)the information mentioned in section 138F(2) about an application for an offender prohibition order or offender prohibition disqualification order mentioned in the police information if the order is not, or was not, made.

(4)The police commissioner must comply with a request under subsection (3).

(5)If the chief executive no longer needs the information requested—

(a)the chief executive must tell the police commissioner the information is no longer needed; and

(b)the police commissioner’s obligation to comply with the chief executive’s request ends.

138D    Chief executive’s request for domestic violence information about relevant person

(1)This section applies if the chief executive reasonably believes a domestic violence order may have been made against a relevant person.

(b)was not known to the chief executive when the chief executive took the action mentioned in subsection (1)(a) or (b).

43   Amendment of s 226 (Deciding exceptional case if conviction or charge)

(1)Section 226(2)—
insert—

(da)information about the person given to the chief executive under the Disability Services Act 2006, section 138ZG;

(2)Section 226(2)(da) and (e)—
renumber as section 226(2)(e) and (f).

44   Amendment of s 228 (Deciding exceptional case if disciplinary information exists)

(1)Section 228, heading, after ‘disciplinary information’—
insert—

or other relevant information

(2)Section 228(1)(b)—
omit, insert—

(b)is aware of—

(i)disciplinary information about the person; or

(ii)other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person.

(3)Section 228(2), ‘The’—
omit, insert—

If the chief executive is aware of disciplinary information about the person, the

(4)Section 228—
insert—

(3)If the chief executive is aware of other information about the person mentioned in subsection (1)(b)(ii), the chief executive must have regard to the following—

(a)the nature of the information, including the circumstances and gravity of the behaviour or conduct the subject of the information;

(b) the relevance of the information to employment, or carrying on a business, that involves or may involve children;

(c) the length of time that has passed since the event or conduct the subject of the information occurred;

(d) anything else relating to the information that the chief executive reasonably believes is relevant to the assessment of the person.

45   Amendment of s 229 (Chief executive to invite submissions from person about particular information)

Section 229(2)(a)—
insert—

(iii)any other information about the person that the chief executive is aware of that the chief executive reasonably believes is relevant to whether it would be in the best interests of children for the chief executive to issue a working with children clearance to the person; and

46   Replacement of s 231 (Term of clearance and negative notice)

Section 231—
omit, insert—

231   Term of clearance

(1)Unless cancelled earlier under part 5A, the term of a working with children clearance issued to a person is—

(a)if the chief executive decides the term of the clearance under subsection (2)—the term decided by the chief executive; or

(b)otherwise—3 years.

(2)The chief executive may decide that the term of a person’s working with children clearance is the same as the term of—

(a)if the person made a combined application—a disability clearance issued to the person by the chief executive (disability services) after deciding the application; or

(b)a disability clearance otherwise held by the person.

(3)The term decided by the chief executive under subsection (2) may be less than 3 years or more than 3 years.

Note—

Under the Disability Services Act 2006, section 101, the term of an NDIS clearance is 5 years and the term of a State clearance is 3 years.

231A    Term of negative notice

A negative notice remains in force until it is cancelled under part 5A.

47   Amendment of s 283 (Deciding application—police officer if further screening not required)

Section 283(a)—
omit, insert—

(a)the chief executive is not aware of—

(i)any police information about the person; or

(ii)any other information about the person that would be relevant to deciding whether it would be in the best interests of children for the chief executive to issue the exemption to the person; and

48   Amendment of s 284 (Deciding application—registered teacher if further screening not required)

Section 284(a)—
omit, insert—

(a)the chief executive is not aware of—

(i)any police information or disciplinary information about the person; or

(ii)any other information about the person that would be relevant to deciding whether it would be in the best interests of children for the chief executive to issue the exemption to the person; and

49   Replacement of s 289 (Term of exemption and negative notice)

Section 289—
omit, insert—

289   Term of exemption

(1)Unless a relevant event happens earlier, the term of a working with children exemption issued to a person is—

(a)if the chief executive decides the term of the exemption under subsection (2)—the term decided by the chief executive; or

(b)otherwise—3 years.

(2)The chief executive may decide that the term of a person’s working with children exemption is the same as the term of—

(a)if the person made a combined application—a disability clearance issued to the person by the chief executive (disability services) after deciding the application; or

(b)a disability clearance otherwise held by the person.

(3)The term decided by the chief executive under subsection (2) may be less than 3 years or more than 3 years.

Note—

Under the Disability Services Act 2006, section 101, the term of an NDIS clearance is 5 years and the term of a State clearance is 3 years.

(4)Each of the following is a relevant event for a working with children exemption—

(a)if the holder of the exemption is a police officer—the holder stops being a police officer;

(b)if the holder of the exemption is a registered teacher—the holder stops being a registered teacher;

(c)the exemption is cancelled under part 5A.

289A    Term of negative notice

A negative notice remains in force until it is cancelled under part 5A.

50   Amendment of s 304A (Cancelling authority because of subsequent information)

(1)Section 304A(1)—
insert—

(ab)other information about the person that the chief executive reasonably believes is relevant to deciding whether it would be in the best interests of children for the person to continue to hold the authority that was not known to the chief executive when the decision was made; or

(2)Section 304A(1)(ab) and (b)—
renumber as section 304A(1)(b) and (c).

51   Replacement of s 344 (Chief executive must give information about particular holders to chief executive (disability services))

Section 344—
omit, insert—

344   Giving information to chief executive (disability services)

(1)This section applies to information about a person—

(a)the chief executive was given, or given access to, under chapter 7 or this chapter; or

(b)in the chief executive’s possession in relation to an employment-screening decision about the person.

(2)The chief executive may give information about a person to the chief executive (disability services) if the chief executive reasonably believes the information is relevant to the functions of the chief executive (disability services) under the Disability Services Act 2006, part 5.

(3)Without limiting subsection (2), the information that may be given includes—

(a)information about a working with children check application made by a person; and

(b)information about a working with children authority or negative notice held by a person; and

(c)police information about a person; and

(d)disciplinary information about a person; and

(e)information about a person’s mental health.

52   Insertion of new s 344C

After section 344B—
insert—

344C    Notifying self-managed NDIS participant about particular matters

(1)This section applies if—

(a)a child is an NDIS participant; and

(b)a relevant person for the child gives the chief executive written notice that a stated person carrying on an NDIS regulated business is delivering NDIS supports or services to the child.

(2)The chief executive may give the child, a person with parental responsibility for the child or the child’s plan manager a written notice about any of the following matters—

(a)if a working with children check application made by the person is decided—that fact and whether the person was issued a working with children authority or negative notice;

(b)if a working with children authority held by the person expires or is suspended or cancelled—the expiry, suspension or cancellation;

(c)if, under section 339(3), the chief executive is required to give a notifiable person for the person a notice about a change in police information about the person—the change in the police information.

(3)A notice about a matter mentioned in subsection (2)(c) must include only the information about the change in the police information that the chief executive is required to give a notifiable person for the person under section 339(3).

(4)In this section—

NDIS participant means a participant in the national disability insurance scheme under the National Disability Insurance Scheme Act 2013 (Cwlth).

NDIS regulated business means a regulated business mentioned in schedule 1, section 16A.

parental responsibility see the National Disability Insurance Scheme Act 2013 (Cwlth), section 75.

plan manager, for a child who is an NDIS participant, means a person other than the child who is managing the funding for supports under the child’s plan within the meaning of the National Disability Insurance Scheme Act 2013 (Cwlth), section 42.

relevant person, for a child who is an NDIS participant, means—

(a)the child; or

(b)a person with parental responsibility for the child; or

(c)the child’s plan manager; or

(d)a person who carries on an NDIS regulated business that includes delivering NDIS supports or services to the child.

53   Omission of s 345 (Use of information obtained under this chapter about a person)

Section 345—
omit.

54   Amendment of s 350 (Holder must notify change and pay prescribed application fee—volunteer or business carried on other than for financial reward)

Section 350(4), from ‘issue a replacement’—
omit, insert—

issue the person—

(a)a new working with children clearance with a new term under section 231; or

(b)a replacement working with children card for the person’s clearance.

55   Amendment of s 384 (Confidentiality of police, disciplinary and mental health information)

(1)Section 384, heading, ‘police, disciplinary and mental health’—
omit, insert—

protected

(2)Section 384(1)(b)—
omit, insert—

(b)in that capacity, was given, or given access to, any of the following information (protected information) about a person—

(i)police information about the person and information related to the police information;

(ii)disciplinary information about the person;

(iii)information about the person’s mental health, including, for example, information about a proceeding in the Mental Health Court or the Mental Health Review Tribunal about the person;

(iv)other information about the person that the chief executive has considered in making an employment-screening decision about the person, including, for example, information given to the chief executive by the chief executive (disability services) under the Disability Services Act 2006, section 138ZG.

(3)Section 384(2)(a), ‘information mentioned in subsection (1)(b)’—
omit, insert—

protected information

(4)Section 384(3) and (4), before ‘information’—
insert—

protected

(5)Section 384(4)(d)—
omit, insert—

(d)is expressly permitted under chapter 8 or section 395; or

56   Replacement of s 385 (Confidentiality of other information)

Section 385—
omit, insert—

385   Confidentiality of other information

(1)This section applies to a person who—

(a)is or has been—

(i)a Minister or a member of the Minister’s staff; or

(ii)a public service employee employed in the department; and

(b)in that capacity, was given or given access to confidential information.

(2)However, this section does not apply in relation to confidential information that is protected information under section 384.

(3)The person must not use the confidential information, or disclose or give access to the confidential information to anyone else, unless the use, disclosure or giving of access is allowed under subsection (4).

Maximum penalty—100 penalty units.

(4)The person may use the confidential information, or disclose or give access to the confidential information to another person, if the use, disclosure or giving of access—

(a)is for the purpose of this Act; or

(b)is for the purpose of obtaining advice for, or giving advice to, the Minister in relation to the confidential information; or

(c)is for the purpose of performing a function under another law; or

(d)is for a proceeding in a court or tribunal; or

(e)is authorised under a regulation or another law; or

(f)happens with the consent of the person to whom the confidential information relates; or

(g)is for a purpose directly related to a child’s protection or welfare.

57   Amendment of s 395 (Reports by chief executive)

Section 395(3)(b), from ‘chapter 8’—
omit, insert—

chapter 8 or 8A, including—

(i)protected information under section 384; and

(ii)confidential information to which section 385 applies.

58   Amendment of s 401 (Regulation-making power)

(1)Section 401(2)—
omit, insert—

(2)A regulation may—

(a)provide for arrangements between the chief executive and the chief executive (disability services) in relation to receiving, withdrawing, dealing with and deciding combined applications; and

(b)prescribe fees payable under the Act and provide for the fees to be refunded or waived; and

(c)provide for a maximum penalty of 20 penalty units for a contravention of a regulation.

(2)Section 401(4) and (5)—
omit.

59   Replacement of ch 11, pt 20 (Transitional provision for Disability Services and Other Legislation (NDIS) Amendment Act 2019)

Chapter 11, part 20—
omit, insert—

Part 20    Transitional provisions for Disability Services and Other Legislation (Worker Screening) Amendment Act 2020

590   New regulated employment

(1)This section applies if, immediately before the commencement—

(a)a person was employed in employment, or was continuing in employment, mentioned in schedule 1, section 6A; and

(b)the employment was not regulated employment mentioned in schedule 1, section 6 as in force immediately before the commencement; and

(c)the person does not hold a working with children authority.

(2)Sections 175, 176A, 176C and 176E do not apply in relation to the employment until—

(a)3 months after the commencement; or

(b)if the person makes a working with children check application within the period mentioned in paragraph (a)—the application is decided or withdrawn.

591   New regulated business

(1)This section applies if, immediately before the commencement—

(a)a person was carrying on a business mentioned in schedule 1, section 16A; and

(b)the business was not a regulated business mentioned in schedule 1, section 16 as in force immediately before the commencement; and

(c)the person does not hold a working with children authority.

(2)Sections 176B and 176G do not apply in relation to the person carrying on the business until—

(a)3 months after the commencement; or

(b)if the person makes a working with children check application within the period mentioned in paragraph (a)—the application is decided or withdrawn.

592   Information that may be given under section 344

(1)For section 344, the chief executive may give information about a person to the chief executive (disability services) regardless of whether the information relates to a matter that happened before or after the commencement.

(2)Without limiting subsection (1), the information that may be given includes—

(a)information about a working with children check application made before the commencement; and

(b)information about a working with children authority or negative notice issued before the commencement; and

(c)information mentioned in section 344(3)(c) to (e) obtained by the chief executive before the commencement.

593   Continuing obligation of confidentiality

(1)This section applies if—

(a)immediately before the commencement, section 385 applied to a person in relation to particular information; and

(b)on the commencement, section 385 does not apply to the person in relation to the information.

(2)Former section 385 continues to apply to the person in relation to the information as if the Disability Services and Other Legislation (Worker Screening) Amendment Act 2020 had not been enacted.

60   Amendment of sch 1, s 6 (Health, counselling and support services)

(1)Schedule 1, section 6(2) and (4)—
omit.

(2)Schedule 1, section 6(3), ‘or (2)’—
omit.

(3)Schedule 1, section 6(3)(c)—
omit.

(4)Schedule 1, section 6(5), definition consumer—
omit.

(5)Schedule 1, section 6(3) and (5)—
renumber as schedule 1, section 6(2) and (3).

61   Insertion of new sch 1, s 6A

Schedule 1, after section 6—
insert—

6A   Disability work

(1)Employment is regulated employment if the usual functions of the employment include providing disability services to a child or children with disability.

(2)Employment is regulated employment if the usual functions of the employment—

(a)include carrying out risk-assessed NDIS work for an NDIS service provider in relation to a child or children with disability; and

(b)are to be carried out—

(i)as an employee of an NDIS service provider; or

(ii)at a place where an NDIS service provider provides NDIS supports or services to a child or children with disability.

(3)Employment mentioned in subsection (1) or (2) is not regulated employment if—

(a)the employee is a person with disability at a place who receives disability services or NDIS supports or services at the place; or

(b)the employee—

(i)is a secondary school student on work experience; and

(ii)carries out risk-assessed NDIS work or provides disability services only under the direct supervision of a person who holds a working with children authority; or

(c)the employee is a volunteer at a place who—

(i)is a relative of a person who receives disability services or NDIS supports or services at the place; and

(ii)is at the place only to help with the care of the person.

(4)In this section—

NDIS service provider see the Disability Services Act 2006, section 15(1).

risk-assessed NDIS work see the Disability Services Act 2006, section 45(2).

62   Amendment of sch 1, s 16 (Health, counselling and support services)

Schedule 1, section 16(1)(d)—
omit.

63   Insertion of new sch 1, s 16A

Schedule 1, after section 16—
insert—

16A   Disability work

A business is a regulated business if the usual activities of the business include, or are likely to include—

(a)providing disability services to a child or children with disability; or

(b)providing NDIS supports or services to a child or children with disability.

64   Amendment of sch 7 (Dictionary)

(1)Schedule 7, definitions child-related service outlet, funded non-government service provider, NDIS non-government service provider, person with a disability, working with children check (exemption) application and working with children check (general) application—
omit.

(2)Schedule 7—
insert—

combined application see section 187A(2).

disability see the Disability Services Act 2006, section 11.

disability clearance means an NDIS clearance or State clearance.

disability exclusion means an exclusion under the Disability Services Act 2006.

disability worker screening application means a disability worker screening application under the Disability Services Act 2006.

interstate NDIS clearance see the Disability Services Act 2006, section 50(3).

interstate NDIS exclusion see the Disability Services Act 2006, section 51(3).

NDIS clearance see the Disability Services Act 2006, section 50(2).

NDIS supports or services see the Disability Services Act 2006, section 12A.

State clearance see the Disability Services Act 2006, section 50(4).

working with children check (exemption) application means—

(a)an application for a working with children check for an exemption made under section 187(2); or

(b)a combined application, to the extent it is an application mentioned in paragraph (a).

working with children check (general) application means—

(a)an application for a working with children check made under section 187(1); or

(b)a combined application, to the extent it is an application mentioned in paragraph (a).

(3)Schedule 7, definition chief executive (disability services), after ‘Disability Services Act 2006’—
insert—

, part 5

(4)Schedule 7, definition disciplinary information, after paragraph (a)—
insert—

(aaa) under the Disability Services Act 2006, section 138ZG, to the extent the information is disciplinary information or NDIS disciplinary or misconduct information under that Act; or

(5)Schedule 7, definition disciplinary information, paragraphs (aaa) to (h)—
renumber as paragraphs (b) to (j).

Part 4    Amendment of other legislation

Division 1 Amendment of Evidence Act 1977

65   Act amended

This division amends the Evidence Act 1977.

66   Amendment of s 93AA (Unauthorised possession of, or dealing in, s 93A criminal statements)

(1)Section 93AA(2A)(a) and (b)—
omit, insert—

(a)preparing a section 93A transcript, or a summary of a section 93A transcript, to give to the chief executive (working with children) or chief executive (disability services) as mentioned in paragraph (b); or

(b)giving a section 93A transcript, or a summary of a section 93A transcript, to the chief executive (working with children) or chief executive (disability services) under an employment-screening Act.

(2)Section 93AA—
insert—

(2AB)The chief executive (working with children) or chief executive (disability services) has authority for subsection (1) if the chief executive has the possession or does the thing mentioned in that subsection for the purpose of, under an employment-screening Act—

(a)giving a section 93A transcript, or a summary of a section 93A transcript, that is in the chief executive’s possession to—

(i)for the chief executive (working with children)—the chief executive (disability services); or

(ii)for the chief executive (disability services)—the chief executive (working with children); or

(b)making an employment-screening decision.

(3)Section 93AA(2B)(a)—
omit, insert—

(a)was given to the chief executive (working with children) or chief executive (disability services) as mentioned in subsection (2A)(b) or (2AB); and

(4)Section 93AA(2C)(a) and (2F)(a), ‘a WWC’—
omit, insert—

an employment-screening

(5)Section 93AA(2E), ‘A WWC’—
omit, insert—

An employment-screening

(6)Section 93AA(3), definitions chief executive (employment screening), employment-screening decision, former CCYPCG commissioner and WWC applicant—
omit.

(7)Section 93AA(3)—
insert—

chief executive (disability services) means the chief executive of the department in which the Disability Services Act 2006, part 5 is administered.

chief executive (working with children) means the chief executive of the department in which the Working with Children Act is administered.

employment-screening Act means—

(a)the Working with Children Act; or

(b)the Disability Services Act 2006.

employment-screening applicant, for a section 93A transcript, means a person—

(a)who allegedly committed the alleged offence to which the transcript relates; and

(b)about whom—

(i)the chief executive (working with children) or the chief executive (disability services) has made an employment-screening decision; or

(ii)the chief executive (working with children) or the chief executive (disability services) is about to make an employment-screening decision.

employment-screening decision means—

(a)an employment-screening decision under the Working with Children Act; or

(b)a decision under the Disability Services Act 2006 about—

(i)whether a clearance or exclusion should be issued to a person; or

(ii)whether a clearance or exclusion issued to a person should be cancelled.

Division 2 Amendment of Police Powers and Responsibilities Act 2000

67   Act amended

This division amends the Police Powers and Responsibilities Act 2000.

68   Replacement of ch 23, pt 1A, hdg (Provision for Working with Children (Risk Management and Screening) Act 2000)

Chapter 23, part 1A, heading—
omit, insert—

Part 1A    Provisions for employment-screening laws

69   Insertion of new s 789B

After section 789A—
insert—

789B    Power to demand production of disability worker clearance card

(1)This section applies if a police officer knows or reasonably suspects—

(a)a person holds a disability worker clearance card; and

(b)the person—

(i)has been charged with a disqualifying offence within the meaning of the Disability Services Act 2006; or

(ii)is a disqualified person within the meaning of the Disability Services Act 2006.

(2)The police officer may require the person to immediately give the person’s disability worker clearance card to the police officer.

(3)The person must comply with the requirement under subsection (2), unless the person has a reasonable excuse.

Maximum penalty—100 penalty units.

(4)A police officer who is given a person’s disability worker clearance card must give the person a receipt for the card.

(5)A police officer must give the disability worker clearance card to the chief executive (disability services).

(6)A police officer may retain the disability worker clearance card until it is given to the chief executive (disability services).

(7)For exercising a power under subsection (2), the police officer is taken to be investigating a matter as mentioned in section 19.

(8)In this section—

chief executive (disability services) means the chief executive of the department in which the Disability Services Act 2006, part 5 is administered.

disability worker clearance card means—

(a)a clearance card under the Disability Services Act 2006; or

(b)a card or other document that corresponds to a clearance card mentioned in paragraph (a) issued under a law of another State.

Part 5    Minor and consequential amendments

70   Acts amended

Schedule 1 amends the Acts it mentions.

Schedule 1 Minor and consequential amendments

section 70

Disability Services Act 2006

1   Section 10—

omit.

2   Section 32A(1)(b), from ‘a service provider that receives’ to ‘disability services’—

omit, insert—

a funded service provider

3   Sections 142, 146(1), 156(3)(c), 173(2)(d)(iii), 183(c), 191(1)(a) and 194(3) and (4)(b), after ‘disability services’—

insert—

or NDIS supports or services

4   Section 144, heading, ‘pt 6’—

omit, insert—

part

5   Section 144, definitions community access services, respite services and restricting access, after ‘disability services’—

insert—

or NDIS supports or services

6   Section 144, definitions community access services and respite services, paragraph (b), after ‘the Commonwealth’—

insert—

, including under the National Disability Insurance Scheme Act 2013 (Cwlth)

7   Section 195(7)—

insert—

service outlet means a place at which disability services or NDIS supports or services are provided.

8   Section 217, heading, ‘div 2’—

omit, insert—

division

9   Section 217, definition adult with a skills deficit, after ‘disability services’—

insert—

or NDIS supports or services

10   Section 218(3), definition keep and implement, paragraph (b), after ‘disability services’—

insert—

or NDIS supports or services

11   Section 233(1), ‘and the NDIS Act’—

omit, insert—

, including the National Disability Insurance Scheme Act 2013 (Cwlth),

12   Section 233(7), definition eligible person, ‘NDIS Act’—

omit, insert—

National Disability Insurance Scheme Act 2013 (Cwlth)

13   Schedule 6, authorising provision, ‘section 111’—

omit, insert—

schedule 8, definition schedule 6 or 7 offence

14   Schedule 7, authorising provision, ‘section 111’—

omit, insert—

schedule 8, definition schedule 6 or 7 offence

15   Schedule 8, definitions amended Act, amending Act, authorised guardian, commencement, compliance period, new disqualified person, new disqualifying offence, new relevant disqualified person, new serious offence, prescribed police information, previous service provider, repealed Act, stage 2 commencement date, transitional period and unamended Act—

omit.

16   Amendment of references to person or people with a disability

All provisions of the Act are amended by—

(a)omitting ‘person with a disability’ and inserting ‘person with disability’; and

(b)omitting ‘Person with a disability’ and inserting ‘Person with disability’; and

(c)omitting ‘people with a disability’ and inserting ‘people with disability’; and

(d)omitting ‘People with a disability’ and inserting ‘People with disability’.

17   Amendment of various provisions

Each of the following provisions is amended by omitting ‘non-government’—

•part 6, division 4, subdivision 3, heading, note

•part 6, division 7, subdivision 2, heading, note

•section 200E

•section 200G(1)(d)

•section 200M(1)

•section 200W

•section 200X(1)

•section 215

•section 226(1)(a)(ii) and (3)(b)

•section 230

•section 231

Guardianship and Administration Act 2000

1   Section 80U, definition disability services—

omit, insert—

disability services means disability services or NDIS supports or services under the Disability Services Act 2006.

2   Section 80U, definition DSA and schedule 4, definition DSA—

omit.

3   Section 80U, ‘DSA’, all occurrences not already amended by this schedule—

omit, insert—

Disability Services Act 2006

4   Section 80V(2)(e), ‘DSA, section 144’—

omit, insert—

Disability Service Act 2006, section 149

5   Section 80ZF(4)(b), 80ZO(a), 80ZS(5), definition restricting access, 80ZT(1) and (3)(a) and (f) and 80ZU, ‘DSA’—

omit, insert—

Disability Services Act 2006

Working with Children (Risk Management and Screening) Act 2000

1   Section 290A, after ‘person, the chief’—

insert—

executive

2   Section 295(2), ‘clearance’—

omit, insert—

authority

3   Section 297(1), note, 301(1), note, 302(3), note, 304C(1), note and 304F(1), note, ‘, 343 and 344’—

omit, insert—

and 343

4   Section 298(3), ‘, 342 or 344’—

omit, insert—

or 342

5   Sections 300 and 301, heading, ‘notice’—

omit, insert—

authority

6   Sections 304I(2)(a)(i) and 304N(3)(a)(i), ‘section 289(2)’—

omit, insert—

section 289A

7   Sections 304I(2)(a)(ii) and 304N(3)(a)(ii), ‘section 231(2)’—

omit, insert—

section 231A

8   Section 347, note—

omit.

9   Schedule 6, all references to ‘person with a disability’—

omit, insert—

person with disability

10   Schedule 7, definition guardian, ‘person with a disability’—

omit, insert—

person with disability

11   Schedule 7, definition working with children card, paragraph (b)(ii), ‘person’—

omit, insert—

person’s authority

© State of Queensland 2020