Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018

Administered by Attorney-General's Department

Legislation au C2018A00033 In force Act

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Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018

 

No. 33, 2018

 

 

 

 

 

An Act to amend the Crimes Act 1914, and for related purposes

 

 

Contents

1 Short title

2 Commencement

3 Schedules

Schedule 1—Amendments

Crimes Act 1914

 

 

 

Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018

No. 33, 2018

 

 

 

An Act to amend the Crimes Act 1914, and for related purposes

[Assented to 22 May 2018]

The Parliament of Australia enacts:

1  Short title

  This Act is the Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018.

2  Commencement

 (1) Each provision of this Act specified in column 1 of the table commences, or is taken to have commenced, in accordance with column 2 of the table. Any other statement in column 2 has effect according to its terms.

 

Commencement information

Column 1

Column 2

Column 3

Provisions

Commencement

Date/Details

1.  Sections 1 to 3 and anything in this Act not elsewhere covered by this table

The day this Act receives the Royal Assent.

22 May 2018

2.  Schedule 1

A single day to be fixed by Proclamation.

However, if the provisions do not commence within the period of 6 months beginning on the day this Act receives the Royal Assent, they commence on the day after the end of that period.

22 November 2018

Note: This table relates only to the provisions of this Act as originally enacted. It will not be amended to deal with any later amendments of this Act.

 (2) Any information in column 3 of the table is not part of this Act. Information may be inserted in this column, or information in it may be edited, in any published version of this Act.

3  Schedules

  Legislation that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.

Schedule 1—Amendments

 

Crimes Act 1914

1  Subdivision A of Division 6 of Part VIIC (heading)

Repeal the heading, substitute:

Subdivision A—Exclusions relating to work with children (Divisions 2 and 3)

2  After Subdivision A of Division 6 of Part VIIC

Insert:

Subdivision AA—Exclusions relating to work with persons with disability (Divisions 2 and 3)

85ZZGH  Object of Subdivision

  The object of this Subdivision is to protect persons with disability from harm by permitting criminal history information to be disclosed and taken into account in assessing whether a person who works, or seeks to work, with a person with disability poses a risk to such a person.

85ZZGI  Exclusion: disclosing information to a person or body

  Divisions 2 and 3 do not apply in relation to the disclosure of information to a prescribed person or body if:

 (a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to obtain and deal with information about persons who work, or seek to work, with a person with disability; and

 (b) the disclosure is for the purpose of the person or body obtaining and dealing with such information in accordance with the prescribed law.

85ZZGJ  Exclusion: person or body taking information into account

  Divisions 2 and 3 do not apply in relation to the taking into account of information by a prescribed person or body if:

 (a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with a person with disability; and

 (b) the taking into account is:

 (i) for the purpose of dealing with such information in accordance with the prescribed law; or

 (ii) required by or under a Commonwealth law, a State law or a Territory law.

85ZZGK  Exclusion: person or body disclosing information

  Divisions 2 and 3 do not apply in relation to the disclosure of information by a prescribed person or body if:

 (a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with a person with disability; and

 (b) the disclosure is required by or under a Commonwealth law, a State law or a Territory law.

85ZZGL  Prescribed persons and bodies

  Before the Governor‑General makes a regulation prescribing, for the purposes of section 85ZZGI, 85ZZGJ or 85ZZGK, a person or body:

 (a) to which information may be disclosed; or

 (b) by which information may be taken into account or disclosed;

the Minister must be satisfied that the person or body:

 (c) is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with a person with disability; and

 (d) complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and

 (e) complies with the principles of natural justice; and

 (f) has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of a person with disability.

85ZZGM  Definitions

  In this Subdivision:

person with disability means any of the following:

 (a) a person who is a participant (within the meaning of the National Disability Insurance Scheme Act 2013);

 (b) a person who is receiving supports or services of a kind mentioned in paragraph (b) of the definition of NDIS provider in section 9 of that Act;

 (c) a person who is receiving supports or services of a kind prescribed by the regulations for the purposes of this paragraph.

work includes the following:

 (a) work:

 (i) under a contract of employment, contract of apprenticeship or contract for services; or

 (ii) in a leadership role in a religious institution, as part of the duties of a religious vocation or in any other capacity for the purposes of a religious institution; or

 (iii) as an officer of a body corporate, member of the committee of management of an unincorporated body or association or member of a partnership; or

 (iv) as a volunteer, other than unpaid work engaged in for a private or domestic purpose; or

 (v) as a self‑employed person;

 (b) practical training as part of a course of education or vocational training;

 (c) acting in a prescribed capacity or engaging in a prescribed activity.

85ZZGN  Reviews of operation of this Subdivision

 (1) The Minister must cause 2 reviews of the operation of this Subdivision to be conducted.

 (2) The first review must be completed not later than 31 December 2019.

 (3) The second review must be completed not later than 31 December 2022.

 (4) The Minister must cause a written report about each review to be prepared.

 (5) The Minister must cause a copy of each report to be laid before each House of the Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

 

 

 

 

[Minister’s second reading speech made in—

House of Representatives on 15 February 2018

Senate on 19 March 2018]

 

(32/18)

 

Overview

The Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018 was enacted by the Parliament of Australia to amend the Crimes Act 1914 and address the gap in protecting people with disability from harm by those who work or seek to work with them. The primary policy objective of this Act is to permit the disclosure and consideration of criminal history information when assessing the risk posed by such individuals. This legislative amendment aims to safeguard individuals with disability by ensuring that criminal history information can be appropriately shared and evaluated in the context of employment or volunteer roles involving individuals with disability. The Act received Royal Assent on 22 May 2018, and its provisions commenced on 22 November 2018. The Act introduces a new subdivision, Subdivision AA, into the Crimes Act 1914 to facilitate the disclosure, consideration, and mandated reporting of criminal history information by certain authorised entities for the purpose of assessing risks to people with disability. The Minister is required to conduct two reviews of the operation of this Subdivision, with the first review to be completed by 31 December 2019 and the second by 31 December 2022. Reports on these reviews must be tabled in both Houses of the Parliament within 15 sitting days of receipt by the Minister.

Scope and Application

The Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018 amends the Crimes Act 1914 to address the disclosure and consideration of criminal history information in the context of individuals working with persons with disabilities. The Act applies to the disclosure and consideration of information regarding individuals who work or seek to work with people with disabilities, specifically those who are participants in the National Disability Insurance Scheme (NDIS) or are receiving supports or services under the NDIS Act. This legislation aims to ensure that the criminal history of individuals working with persons with disabilities is appropriately disclosed and taken into account to protect vulnerable individuals from potential harm. The Act's provisions are applicable nationally, as it is a Commonwealth Act, and its reach extends to all states and territories within Australia. The Act includes exclusions that permit the disclosure and consideration of such information by certain prescribed persons or bodies if they are required or permitted by prescribed Commonwealth, State, or Territory laws to obtain and deal with information about persons working with individuals with disabilities. These exclusions are subject to compliance with privacy, human rights, records management laws, and the principles of natural justice, as well as the possession of risk assessment frameworks and appropriately skilled staff. The Act also mandates two reviews of the Subdivision's operation, with reports to be laid before each House of Parliament by specific dates.

Key Provisions

The Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Act 2018 introduces amendments to the Crimes Act 1914 to allow for the disclosure and consideration of criminal history information in relation to individuals who work, or seek to work, with people with disabilities. Section 85ZZGH of the Crimes Act outlines the purpose of these amendments, which is to protect persons with disability from harm by allowing for the disclosure and consideration of criminal history information to assess the risk such individuals may pose. The Act introduces a new Subdivision AA within Division 6 of Part VIIC of the Crimes Act, which specifically addresses exclusions relating to work with persons with disability (sections 85ZZGI to 85ZZGM). These exclusions apply to the disclosure, consideration, and requirements for prescribed persons and bodies to deal with such information in accordance with specified laws (sections 85ZZGI to 85ZZGK). The Act imposes several obligations on parties or entities it governs. Firstly, it requires that prescribed persons or bodies must be authorised by or under a Commonwealth, State, or Territory law to obtain and deal with information about individuals who work, or seek to work, with people with disabilities (section 85ZZGL(a)). Additionally, the Minister must be satisfied that these entities comply with applicable privacy, human rights, and records management laws, adhere to principles of natural justice, and have risk assessment frameworks and appropriately skilled staff to assess risks to the safety of people with disabilities (section 85ZZGL(c) to (f)). Furthermore, the Minister is mandated to conduct two reviews of the operation of this Subdivision, with the first review to be completed by 31 December 2019 and the second by 31 December 2022. Reports on these reviews must be prepared and laid before each House of the Parliament within 15 sitting days of receipt by the Minister (section 85ZZGN). The Act does not explicitly outline specific offences, penalties, or civil/criminal consequences for breaches of its provisions. However, the failure to comply with the obligations and requirements stipulated in the Act, particularly those relating to the handling of information about individuals who work with people with disabilities, could potentially lead to legal consequences under the laws of the relevant Commonwealth, State, or Territory jurisdictions, as well as any applicable privacy and human rights laws. The Act’s focus is primarily on ensuring the safety and protection of persons with disabilities by providing a legal framework for the disclosure and consideration of criminal history information in the context of employment and volunteering.

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