EXPLANATORY STATEMENT
Issued by the authority of the Minister for the National Disability Insurance Scheme
National Disability Insurance Scheme Act 2013
National Disability Insurance Scheme (NDIS Worker Screening Law Amendment No. 1 Determination) 2020
Purpose
The National Disability Insurance Scheme (NDIS Worker Screening Law Amendment No. 1 Determination) 2020 (Amendment Determination) specifies further State and Territory laws that are NDIS worker screening laws for the purposes of section 10B of the National Disability Insurance Scheme Act 2013 (the Act).
The purpose of the Amendment Determination is to amend the National Disability Insurance Scheme (NDIS Worker Screening Law) Determination 2020 to specify the Northern Territory National Disability Insurance Scheme (Worker Clearance) Act 2020, Queensland Disability Services and Other Legislation (Worker Screening) Amendment Act 2020, the Victorian Worker Screening Act 2020 and the Western Australian National Disability Insurance Scheme (Worker Screening) Act 2020 and the under section 10B(1) of the Act for the purposes of the definition of ‘NDIS worker screening law’ in section 9 of the Act.
Background
The National Disability Insurance Scheme (NDIS Worker Screening Law) Determination 2020 was made on 11 February 2020. That Determination specified four State and Territory laws to be ‘NDIS worker screening laws’ for the purpose of the Act, consistently with the national worker screening approach agreed with States and Territories in the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS (Intergovernmental Agreement).
Under the Intergovernmental Agreement, States and Territories remain responsible for conducting NDIS worker screening checks, including the application process and risk assessment. A centralised database, hosted and administered by the NDIS Quality and Safeguards Commissioner, will provide and maintain current and accurate information relating to these checks. The database will be accessible to persons or bodies for the purposes of NDIS worker screening checks from 1 February 2021.
Section 10B of the Act provides that the Minister may, by legislative instrument, determine a law of a State or Territory to be an ‘NDIS worker screening law’ for the purposes of the Act, with the agreement of that State or Territory. Before making a determination, under section 10B(2) of the Act, the Minister must be satisfied that the State or Territory law establishes a scheme for the screening of workers for purposes including the NDIS.
In the case of the Northern Territory National Disability Insurance Scheme (Worker Clearance) Act 2020, Queensland Disability Services and Other Legislation (Worker Screening) Amendment Act 2020, the Victorian Worker Screening Act 2020 and the Western Australian National Disability Insurance Scheme (Worker Screening) Act 2020, the Ministers are satisfied that their applicable law establishes a scheme for the screening of workers for purposes including the NDIS.
The Northern Territory Minister for Disabilities, Queensland Minister for Seniors and Disability Services and Minister for Aboriginal and Torres Strait Islander Partnerships, Victoria Minister for Child Protection and Minister for Disability, Ageing and Carers and Western Australia references have agreed that the Amendment Determination can be made.
The Amendment Determination is a legislative instrument for the purposes of the Legislation Act 2003, but is not subject to disallowance, as a result of subsection 44(1) of that Act. This is because the enabling legislation facilitates the establishment and operation of an intergovernmental worker screening scheme involving the Commonwealth and the States and Territories.
The Minister may exercise the power under section 10B(1) of the Act from time to time to amend the National Disability Insurance Scheme (NDIS Worker Screening Law) Determination 2020, pursuant to section 33(3) of the Acts Interpretation Act 1901.
Commencement
The Amendment Determination commences on the day after it is registered.
Consultation
The Commonwealth Minister has obtained written agreement from his State and Territory counterparts in the Northern Territory, Queensland, Victoria and Western Australia that the worker screening laws in their respective jurisdictions will be designated worker screening laws under section 10B of the Act.
Regulatory Impact Analysis (RIS)
A RIS is not required for this Determination (OBPR ID 16842).
Explanation of the provisions
Section 1 – Name
Section 1 provides that the name of the Determination is the National Disability Insurance Scheme (NDIS Worker Screening Law Amendment No. 1 Determination) 2020.
Section 2 – Commencement
Section 2 provides a table setting out the commencement date for the Determination. The Determination commences on the day after registration.
Section 3 – Authority
Section 3 provides that the Determination is made under the Act. Section 10B of the Act provides that the Minister may, by legislative instrument, determine a law of a State or Territory to be a ‘NDIS worker screening law’ with the agreement of that State or Territory.
Section 4 – NDIS worker screening laws
Section 4 provides that each instrument that is specified in Schedule 1 to the Determination is amended as set out in that Schedule.
Schedule 1 – Amendments to National Disability Insurance Scheme (NDIS Worker Screening Law) Determination 2020
Item 1
Item 1 inserts new subsections 5(5) to 5(8), immediately after subsection 5(4).
Subsection 5(5) specifies the Northern Territory National Disability Insurance Scheme (Worker Clearance) Act 2020, as in force from time to time, is an NDIS worker screening law for the purposes of the Act.
Subsection 5(6) specifies the Queensland Disability Services and Other Legislation (Worker Screening) Amendment Act 2020, as in force from time to time, is an NDIS worker screening law for the purposes of the Act.
Subsection 5(7) specifies the Victoria Worker Screening Act 2020, as in force from time to time, is an NDIS worker screening law for the purposes of the Act.
Subsection 5(8) specifies the Western Australia National Disability Insurance Scheme (Worker Screening) Act 2020, as in force from time to time, is an NDIS worker screening law for the purposes of the Act.
Item 1 makes it clear that the Northern Territory, Queensland, Victoria and Western Australia worker screening laws will remain worker screening laws, even if a relevant law in that jurisdiction is amended after the Amendment Determination is made.
The Amendment Determination does not incorporate the Northern Territory, Queensland, Victoria and Western Australia worker screening laws in the Amendment Determination. Rather, the effect of the Amendment Determination is merely to include the Northern Territory, Queensland, Victoria and Western Australia worker screening laws within the definition of ‘NDIS worker screening law’ in section 9 of the Act. Therefore, section 14(2) of the Legislation Act 2003 does not apply.
Amendments to the prescribed State and Territory laws will be closely monitored, and the Minister will continue to review the appropriateness of the determination of each determined of the State and Territory laws from time to time, to ensure the requirements of section 10B of the Act continue to be met.
Statement of Compatibility with Human Rights
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
National Disability Insurance Scheme (NDIS Worker Screening Law Amendment No. 1 Determination) 2020
The National Disability Insurance Scheme (NDIS Worker Screening Law Amendment No. 1 Determination) 2020 is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Determination
The National Disability Insurance Scheme (NDIS Worker Screening Law Amendment No. 1 Determination) 2020 (the Determination) specifies the Northern Territory, Queensland, Victoria and Western Australia that is to be a NDIS worker screening law for the purposes of the National Disability Insurance Scheme Act 2013 (the Act).
In February 2017, the Council of Australian Governments’ Disability Reform Council released the National Disability Insurance Scheme (NDIS) Quality and Safeguarding Framework (Framework), setting out a new national approach to regulation for the NDIS. A nationally recognised approach to worker screening is a core element of the Framework, intended to minimise the risk of harm to persons with disability from the persons who work closely with them.
An approach for nationally consistent worker screening was agreed with States and Territories in the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS (Intergovernmental Agreement). Under the Intergovernmental Agreement, States and Territories remain responsible for conducting NDIS worker screening checks, including the application process and risk assessment. A centralised database is to be hosted and administered by the NDIS Quality and Safeguards Commissioner to provide and maintain current and accurate information relating to these checks. The database will be accessible to persons or bodies for the purposes of the NDIS.
Section 10B of the Act, as inserted by the National Disability Insurance Scheme Amendment (Worker Screening Database) Act 2019, provides that the Minister may, by legislative instrument, determine a law of a State or Territory to be an ‘NDIS worker screening law’ for the purposes of the Act with the agreement of that State or Territory. Before determining a law of a State or Territory, the Minister must be satisfied that the law establishes a scheme for the screening of workers for purposes including the NDIS.
It is intended that laws establishing a scheme for the screening of workers in connection with the NDIS be specified as NDIS worker screening laws as they are made or amended by each State and Territory. NDIS Worker Screening Checks (the Checks) performed under those laws support employers to determine if a person is suitable to deliver supports and services to NDIS participants, thereby minimising the risk people with disability will be subject to violence, abuse, neglect and exploitation. As such, the Determination will play a role in upholding the human rights of persons with a disability by helping to protect them from experiencing harm from persons working closely with them.
Human rights implications
The Determination engages the following rights under international human rights law:
- Rights of persons with disabilities to live free from exploitation, violence and abuse – Article 16 of the Convention of the Rights of Persons with Disabilities (CRPD)
- Right to work – Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR); and
- Right to privacy – Article 17 of the International Covenant on Civil and Political Rights (ICCPR).
Rights of persons with disability – Article 16 of the CRPD
Article 16 states that all parties to the CRPD shall take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities from all forms of exploitation, violence and abuse. The purpose of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity.
The Determination will support the implementation of the Check. A nationally consistent approach to worker screening seeks to minimise the risk of harm to persons with disability by people who work closely with them. A nationally consistent and recognised worker screening regime promotes the rights of persons with disability by:
- sending a strong signal to the community about the priority placed on the rights of persons with disabilities to be safe and protected;
- reducing the potential for providers to employ workers who pose a high risk of harm to persons with disabilities; and
- prohibiting persons who pose a high risk, or who are proven to have harmed vulnerable people, from working in particular roles in the NDIS sector.
Persons with disability have the right to be protected from exploitation, violence and abuse from those who work closely with them. The rights of people with disability are of paramount consideration in the conduct of Checks. The Determination will ensure that appropriate worker screening checks are in place to protect and promote the rights of NDIS participants, some of whom are the most vulnerable persons in the community.
Right to work – Article 6 of ICESCR
Article 6 of ICESCR recognises the right to work and ‘includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts’. This right also applies to workers who work with people with disability, including NDIS participants.
The Determination engages the right to work by recognising existing or newly established state and territory worker screening laws as national worker screening checks for the NDIS. The effect of this is that a worker screening decision made under a designated worker screening law will be applicable nationally as a Check.
The National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 require workers in ‘risk assessed roles’ within registered NDIS providers to hold a current Check clearance. Persons may be excluded from holding a Check clearance if a risk assessment conducted by a state or territory worker screening unit determines they pose an unacceptable risk of harm to persons with disability. Risk assessed roles are those involving more than incidental contact with a person with disability, key personnel, or roles involving the delivery of supports or services specified by the NDIS Quality and Safeguards Commissioner.
This requirement reflects a proportionate approach whereby only workers whose role involves an opportunity to cause significant harm to persons with disability must undertake screening. This requirement does not prevent persons from working with unregistered providers in the NDIS, nor does it prevent persons from working in roles involving only incidental contact with persons with disability.
To the extent that the Determination engages the right to work, any restriction is proportionate and necessary in achieving the protection of persons with disability and confidence in the safety of the NDIS market.
Right to privacy – Article 17 of the ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. The Determination engages the right to privacy by recognising State and Territory laws, including provisions for the collection, use and disclosure of personal information contained in those laws, for the purposes of the NDIS Check.
The Northern Territory, Queensland, Victoria and Western Australia laws being prescribed by the Determination contain measures to protect individuals’ privacy. Further, applicants for a NDIS Check will be asked for their informed consent, which provides permission to the prescribed worker screening units to collect, use and disclose applicant’s personal information for the purposes of the NDIS Check.
The Determination is compatible with human rights because, to the extent that it may limit a person’s right to privacy, the limitations are reasonable and necessary to achieving the protection of persons with disability and confidence in the safety of the NDIS market. Further, each State and Territory must ensure that they have appropriate processes in place to protect the privacy of a person who is applying for the NDIS Check.
Conclusion
The Determination advances the protection of the rights of persons with disability in Australia consistent with the CRPD, particularly in relation to preventing exploitation, violence and abuse in the NDIS sector. The Determination is compatible with human rights because, to the extent that it may limit the right to work and right to privacy, the limitation is reasonable, necessary and proportionate to achieving the protection of persons with disability and confidence in the safety of the NDIS market.
[Circulated by the authority of the Minister for the National Disability Insurance Scheme, the Hon Stuart Robert MP]