National Disability Insurance Scheme (Practice Standards—Worker Screening) Amendment (Miscellaneous Measures) Rules 2020

EXPLANATORY STATEMENT

Issued by the authority of the Commissioner of the NDIS Quality and Safeguards Commission

National Disability Insurance Scheme Act 2013

National Disability Insurance Scheme (Practice Standards – Worker Screening) Amendment (Miscellaneous Measures) Rules 2020

Purpose

The National Disability Insurance Scheme (Practice Standards – Worker Screening) Amendment (Miscellaneous Measures) Rules 2020 (the Instrument) are made under section 209 of the National Disability Insurance Scheme Act 2013 (the Act) for the purposes of section 73T and 73Q of the Act.

The Instrument amends the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (the Rules).

The Rules form part of the framework to support the safe delivery of services and supports to people with disability under the National Disability Insurance Scheme (NDIS).

The NDIS worker screening system is a national system given effect by the cooperative efforts of the Commonwealth, States and Territories. The arrangement between the Commonwealth and the other jurisdictions is recorded in the Intergovernmental Agreement on Nationally Consistent Worker Screening for the Disability Insurance Scheme (the Agreement). A copy of the Agreement is available at ndiscommission.gov.au.

The Instrument makes amendments for the purpose of clarifying requirements that apply to registered NDIS providers where the existing language of provisions is potentially unclear or ambiguous. This includes:

• clarifying the requirements that apply to a registered NDIS provider that is an individual as opposed to an organisation;
• clarifying the transitional arrangements that apply to registered NDIS providers in New South Wales;
• correcting some incorrect references to provisions in the transitional arrangements that apply to registered NDIS providers in South Australia;
• clarifying that the transitional arrangements for the states and territories will cease to apply where a person has applied to an NDIS worker screening unit for a clearance and is subject to an exclusion or been issued an interim bar in response to the application, or is subject to suspension or cancellation in relation to that clearance;
• updating references to state and territory legislation so that references are to the legislation as in force from time to time;
• clarifying the requirements for the registered NDIS provider to enter into an ‘appropriate contract’ in certain circumstances and when those requirements apply; and
• clarifying which requirements are NDIS Practice Standards made for the purposes of section 73T(1) of the Act and which are record keeping requirements made for the purpose of section 73Q of the Act.

The Instrument also broadens and amends some definitions contained in the Rules. The definition of ‘worker’ is broadened to include ‘key personnel’ to ensure that a registered NDIS provider’s screening obligations apply with respect to its key personnel and to more closely align the definition with the definition of ‘worker’ in the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

The definitions of ‘personnel’ and ‘personnel provider’ have been added and the concept of ‘other personnel’ has been repealed. These amendments are for the purpose of clarifying the requirements that apply to registered NDIS providers that provide supports and services to people with disability by entering into an appropriate contract with other persons or entities.

The Instrument also prescribes transitional arrangements that will apply to providers in Western Australia once it becomes a participating jurisdiction and extends the transition period for the Northern Territory.

Background

The Instrument is made under section 209 of the Act construed in accordance with section 33(3) of the Acts Interpretation Act 1901.

Section 209 of the Act provides that the Minister may, by legislative instrument, make rules (NDIS rules) that prescribe matters required or permitted by this Act to be prescribed or which are necessary or convenient to be prescribed in order to carry out or give effect to the Act.

Section 73Q of the Act provides that registered NDIS providers must keep records of the kind, for the period and in the form prescribed by the NDIS rules.

Section 73T(1) of the Act provides that the NDIS rules may set out requirements for or in relation to standards concerning the quality of supports or services to be provided by registered NDIS providers. Section 73T(2) provides that rules made for the purposes of section 73T(1) are to be known as NDIS Practice Standards.

Section 73F(1) of the Act provides that the registration of a person as a registered NDIS provider is subject to certain conditions including the conditions set out in section 73F(2). Section 73F(2) provides that these conditions include the condition that a person comply with all applicable standards and other requirements of the NDIS Practice Standards (section 73F(2)(c)) and that the person comply with all applicable requirements relating to record keeping prescribed by the NDIS rules for the purposes of section 73Q (section 73F(2)(d)).

The Instrument amends the Rules, which form part of a broader suite of requirements that apply to registered NDIS providers, and persons or entities seeking to be so registered.

Section 33(3) of the Acts Interpretation Act 1901 states:

Where an Act confers a power to make, grant or issue any instrument of a legislative or administrative character (including rules, regulations or by-laws) the power shall be construed as including a power exercisable in the like manner and subject to the like conditions (if any) to repeal, rescind, revoke, amend, or vary any such instrument.

The Instrument is a legislative instrument for the purposes of the Legislation Act 2003.

Commencement

The Instrument commences on 1 December 2020.

Consultation

Section 209 of the Act prescribes that NDIS rules fall into four categories.  Item 2 of the table that is part of section 209(8) of the Act prescribes certain categories of NDIS rules to be ‘Category B’ rules and Item 4 prescribes certain categories to be ‘Category D’ rules.

Category B rules include rules made for the purposes of section 73T(1), to the extent that the NDIS Practice Standards deal with the screening of workers involved in the provision of supports or services to people with disability under the NDIS. Category D rules include rules made for the purposes of section 73Q.

Under section 209(5), Category B rules relating to an area, law or program of a host jurisdiction cannot be made under section 209(1) unless the host jurisdiction has agreed to the making of those rules. In compliance with this requirement, prior to making the Instrument the Commissioner of the NDIS Quality and Safeguards Commission (as the Minister’s delegate) obtained agreement from New South Wales, South Australia, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory and Western Australia.

Under subsection 209(7), Category D rules cannot be made unless each host jurisdiction has been consulted in relation to the making of the rules. In compliance with this requirement, prior to making the Instrument the Commissioner (as the Minister’s delegate) consulted with senior officials from New South Wales, South Australia, Victoria, Queensland, Tasmania, the Australian Capital Territory, the Northern Territory and Western Australia.

Regulatory Impact Statement (RIS)

Implementing a national worker screening system was subject to the RIS for the enabling legislation (OBPR ID 16842), and no separate RIS is required for this instrument.  

Explanation of the provisions

Section 1 - Name

Section 1 provides that the Instrument is titled the National Disability Insurance Scheme (Practice Standards – Worker Screening) Amendment (Miscellaneous Measures) Rules 2020.

Section 2 – Commencement

Section 2 provides that the whole of the Instrument commences on 1 December 2020.

Section 3 – Authority

Section 3 provides that the Instrument is made under the National Disability Insurance Scheme Act 2013.

Section 4 – Schedules

Section 4 provides that each instrument specified in a Schedule to the Instrument is amended or repealed as set out in the Schedule concerned, and any other item in a Schedule to the Instrument has effect according to its terms.

Schedule 1 – Amendments

Part 1—General Amendments

Item 1 Subsections 4(1) and (2)

This amendment repeals the subsections of section 4 relating to the application of the Rules and substitutes provisions that clarify which of the provisions in the Rules are NDIS Practice Standards and which provisions are record keeping requirements. The amendment clarifies that:

• Parts 2 and 4 of the Rules contain the NDIS Practice Standards for worker screening and that these parts apply to a person or entity who is applying to become a registered NDIS provider and all registered NDIS providers in participating jurisdictions;
• Part 3 contains the record keeping requirements in relation to worker screening; and
• Part 4 contains the transitional and special arrangements that apply if the circumstances set out in Part 4 apply. 

Item 2 Section 5 (paragraph (a) of the note to the heading)

This amendment repeals paragraph (a) of the note to the heading, which refers to the definition of ‘host jurisdiction’ in the Act. Due to the amendments to section 4, the term ‘host jurisdiction’ no longer appears in the Rules.

Item 3 Section 5 (at the end of the note to the heading)

This amendment adds the term ‘reportable incident’ to the note under section 5 that is a list of terms that are defined in the Act. The term is used in the new sections 5A and 12 that are inserted by the Instrument.

Item 4 Section 5

This amendment creates definitions for the terms ‘acceptable NSW check’ and ‘acceptable SA check’.

Item 5  Section 5 (definition of appropriate contract)

This amendment repeals the definition of ‘appropriate contract’ and substitutes a new definition of that term, which refers to the new section 5A.

Item 6 Section 5 (definition of other personnel)

This amendment repeals the definition of ‘other personnel’ (because, as a result of the Instrument, that term will no longer be used in the Rules) and substitutes definitions of new terms, namely ‘personnel’ and ‘personnel provider’.

The definition of ‘personnel’ is intended to capture any individual who is made available to perform work at the premises of a registered NDIS provider, or as part of the provision of supports and services by the provider to any person with a disability by or on or behalf a registered NDIS provider.

The following criteria need to be met for an individual to meet the definition of ‘personnel’:

• The individual is not a worker or a registered NDIS provider, i.e. the individual is not:
  • employed or otherwise engaged (including directly contracted) by a registered NDIS provider,
  • a member of the key personnel of a registered NDIS provider,
  • a partner of a partnership that is a registered provider, or
  • an individual who is a registered NDIS provider; and
• The individual performs, or will perform, work either:
  • at the premises of a registered NDIS provider; or
  • by or on behalf of the registered NDIS provider, to any person with a disability as part of the provision of supports and services to the person.

If an individual’s services are made available to a registered NDIS provider by a ‘personnel provider’ (see below) and that individual is also a registered NDIS provider, that individual is not be ‘personnel’ for the purposes of the Rules as amended by the Instrument. This is because an individual who is a registered NDIS provider is captured by the amended definition of ‘worker’, and to fall within the definition of ‘personnel’, the individual is cannot be a worker. It is not possible for an individual to be both ‘personnel’ and fall within the definition of ‘worker’.

Example where individuals are ‘personnel’

A registered NDIS provider provides support comprising specialist disability accommodation to people with disability. The registered NDIS provider contracts to Company R the cleaning of the accommodation premises that is part of the support. The employees and contractors of Company R who clean the accommodation premises are ‘personnel’ because the cleaning services are part of the provision of supports and services to people with disability on behalf of the registered NDIS provider at the registered NDIS provider’s premises.

Examples where individuals are not ‘personnel’

Example 1: A registered NDIS provider provides gardening services to people with disability. The registered NDIS provider engages Company A to perform accounting services for the company. Company A operates remotely and is set up to provide its services without attending the premises of the registered NDIS provider. The employees or contractors of Company A are not ‘personnel’ because they are not performing work at the registered NDIS provider’s premises or as part of the provision of supports or services to people with disability, by, or on behalf of, the registered NDIS provider.

Example 2: A registered NDIS provider provides gardening services to people with disability at their homes. The registered NDIS provider engages Company G to perform some of the gardening. One of the gardeners made available by Company G is John Smith who does the gardening at a couple of homes. John Smith has his own business where he is a sole trader and is also a registered NDIS provider. Even though John Smith is engaged by Company G and is providing services on behalf of the registered NDIS provider, John Smith is not personnel, because he is also a registered NDIS provider. (As an individual who is a registered NDIS provider, John Smith is a ‘worker’ and if he were to engage in a risk assessed role in that capacity would be required to obtain a clearance under section 13(c) of the Rules, as amended by the Instrument.)

The definition of ‘personnel provider’ is intended to capture any person (whether an individual or other legal entity) that makes the services of ‘personnel’ available to a registered NDIS provider, where those personnel will perform work that is part of the services provided by or on behalf of that registered NDIS provider to NDIS participants. In the examples above:

• Company R and Company P are personnel providers;
• Company A is not a personnel provider;
• Company G is not a personnel provider in the circumstances described.

Item 7 Section 5

This amendment inserts a definition for ‘process of obtaining a clearance’ which is detailed in section 15.

Item 8 section 5 (definition of subcontractor)

This amendment repeals the definition of ‘subcontractor’ because, as a result of the Instrument, that term will no longer be used in the Rules.

Item 9 section 5 (definition of transitional arrangements)

This amendment amends the definition of ‘transitional arrangements’ to clarify that the transitional arrangements in Part 4 of the Rules are, in relation to a participating jurisdiction, the measures that apply in that participating jurisdiction in accordance with sections 14 and 14A and Part 4 of the Rules.

Item 10 Section 5 (definition of worker)

This amendment repeals the definition of ‘worker’ to substitute a broader definition which defines a ‘worker’ as:

(a)  An individual employed or otherwise engaged by a registered NDIS provider;

(b)  Each of the key personnel of a registered NDIS provider;

(c)   A partner of a partnership that is a registered NDIS provider; and

(d)  An individual who is a registered NDIS provider.

The definition has been broadened to include ‘key personnel’ to ensure that a registered NDIS provider’s screening obligations in section 13(2) of the Rules apply with respect to the provider’s key personnel, and, if the provider is a partnership, each of its partners or, if the provider is an individual, to the provider him or herself. It is unclear that key personnel, partners or individual who is a registered NDIS provider would necessarily be captured (as intended) by the definition of ‘worker’ as previously drafted.

An individual who is a registered NDIS provider is an individual that is registered as a registered NDIS provider and will include individuals that operate as sole traders.

The addition of paragraphs (c) and (d) also cause the definition in the Rules to align more closely with the definition of ‘worker’ contained in the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

Item 11 After Section 5

This creates a new section 5A which sets out the definition of an ‘appropriate contract’ for the purposes of section 13 of the Rules. The definition brings together the requirements that were previously contained in sections 5 and 13 of the Rules.

The new section 5A(2)(a)(ii) creates a requirement that ‘personnel providers’ must disclose certain information to a registered NDIS provider relating to the clearance of an individual who will be ‘personnel’. This replaces the requirement that previously existed under section 13(4)(b).

Section 13(4)(b) previously stated that the ‘appropriate contract’ must impose the following condition, among others:

the subcontractor must only allow a member of other personnel to engage in a risk assessed role with the provider, if the subcontractor may disclose information to the provider about any matter relating to whether the member of other personnel may engage in a risk assessed role, including but not limited to information about:

(i) the making of an application for an NDIS worker screening check;

(ii) an interim bar;

(iii) a suspension;

(iv) an exclusion;

(v) the closure of an application for a worker screening clearance;

(vi) the revocation of a clearance;

…

(vii) the expiry date of a clearance

The new section 5A(2)(a)(ii) replaces the previous provision because the language in it was unclear regarding the obligation that was being imposed by the condition in the appropriate contract.

Further, the new section 5A(2)(a)(ii) imposes a stronger obligation on personnel providers to give the registered NDIS provider information relevant to personnel’s clearances, or any exception under Division 4 of Part 2 of the Rules that applies with respect to the personnel, so that the registered NDIS provider has all of the information necessary to fulfil its obligations under its conditions of registration, including compliance with the NDIS Practice Standards and record keeping requirements contained in the Rules. 

The new section 5A(2)(a)(ii) is intended to ensure that registered NDIS providers have the information they need to ensure that ‘personnel’ have the required clearances, if those personnel will be performing work with the registered NDIS provider in risk assessed roles. The provision relates to information that the personnel provider has about the clearance itself and is not intended to capture information that was used by the NDIS worker screening unit to inform the outcome of the NDIS worker screening check.

The new requirement under section 5A(2)(a)(iii), is also intended to capture any change to the circumstances of personnel that relate to their clearance or exception under Division 4 of Part 2 of the Rules that applies with respect to them, to the extent that it may impact the ability of personnel to be engaged in a risk assessed role by the registered NDIS provider.

Item 12 Part 2 (heading)

This amendment creates a new heading for Part 2.

Item 13 Division 1 of Part 2

This amendment repeals the existing Division 1 of Part 2 and substitutes new provisions to clarify the purpose of Part 2. The amendment removes the current reference to section 73T(3) of the Act to clarify that Part 2 is made for the purposes of section 73T(1) of the Act.

It also clarifies that the standards in the Rules relate to the screening of all individuals who engage in risk assessed roles in the provision of supports or services by registered NDIS providers.

Item 14 Division 2 of Part 2 (heading)

This amendment repeals the existing heading and substitutes a new heading for Division 2 of Part 2.

Item 15 Section 9

This amendment clarifies that a person applying to be registered to provide any class of support must be assessed by an approved quality auditor by verification (as defined by the Rules) as meeting the standards and requirements in Part 2 of the Rules, and Part 4 of the Rules if applicable, as if any reference in those Parts to a ‘registered NDIS provider’ were a reference to an ‘applicant’.

It also clarifies that a registered NDIS provider must continue to comply with the standards in Part 2, and Part 4 if applicable, to remain registered to provide any class of support.

Item 16 Division 3 of Part 2

This amendment repeals the existing Division 3 of Part 2 and substitutes new provisions to clarify the requirements that apply to registered NDIS providers under the new Division 3 of Part 2. The new section 11 clarifies that a registered NDIS provider is required to assess all roles that will be undertaken in relation to the provision of supports and services to any person with a disability by ‘workers’, including individuals who are registered NDIS providers, and ‘personnel’, and to identify which are ‘risk assessed roles’.

The new section 12 clarifies the requirements that apply to registered NDIS providers in relation to when a risk management plan must be developed and maintained, and specifies certain information that the risk management plan must include.

Maintaining a risk management plan is an existing requirement under section 12. Previously, section 12(1) required that registered NDIS providers develop and maintain a ‘satisfactory written risk management plan’. The new section 12(1) eliminates the word ‘satisfactory’ and instead specifies under the new subsection (2) the minimum detail that must be included in a required written risk management plan. The purpose of this is to remove any ambiguity around the minimum requirements of a written risk management plan that a registered NDIS provider must develop and maintain.

A registered NDIS provider may develop and maintain the written risk management plan through a methodology and format that is appropriate in the context of its operations, but it must include, at a minimum, the detail specified in the new section 12(2).

Section 12(2)(a) requires that the risk management plan must identify and describe each risk to a person with disability for whom the registered NDIS provider provides supports or services, and section 12(2)(b) requires that the plan explain how each risk will be managed. The risks referred to are risks in connection with the provision of NDIS-funded supports and services by the registered NDIS provider to a person with disability.

Item 17 Division 4 of Part 2 (heading)

This amendment repeals the existing heading for Division 4 of Part 2 and substitutes a new heading that more accurately reflects the Division’s content.

Item 18 Sections 13 and 14

This amendment, in so far as it relates to section 13, clarifies the requirements that apply to registered NDIS providers in relation to the individuals that may be engaged in a risk assessed role by simplifying the language used in this section. This is made possible by the amendments in items 5 and 6 which amend the Rules to include the new definitions of ‘appropriate contract’, ‘personnel’, ‘personnel provider’.

The repeal of the existing section 14, and the introduction of the new sections 14(1)(b) and 14(2)(b), are for the purpose of strengthening protections to people with disability.

An existing exception under section 14 allows registered NDIS providers to allow a person to engage in a risk assessed role when that person does not have a clearance when the provider is complying with the transitional arrangements in Part 4.

The amendment clarifies that the exception will cease to apply if the person:

• has been issued with an interim bar that is in force, or
• is subject to an exclusion that is in force, or
• is subject to a suspension that is in force in relation to a clearance, or
• has had a clearance cancelled.

It also clarifies the exceptions as they apply to individuals who are also registered NDIS providers.

This amendment closes a gap that previously existed by providing that a registered NDIS provider cannot engage a person in a risk assessed role if that person has received an interim bar, exclusion, suspension or cancellation in relation to an application for an NDIS worker screening check, even if that person meets the requirements under the transitional and special arrangements in the jurisdiction where the registered NDIS provider provides supports and services to NDIS participants.

This is for the purpose of providing the protections for people with disability intended by national worker screening. The amendment ensures that individuals that have been assessed by an NDIS worker screening unit as posing an unacceptable risk to people with disability cannot be engaged by registered NDIS providers in risk assessed roles even if they meet the requirements in the transitional and special arrangements of a jurisdiction.

Section 14(2) clarifies the exceptions as they apply to individuals who are registered NDIS providers.

Item 19 Section 14A (heading)

This amendment repeals the existing heading for section 14A and creates a new heading that more accurately reflects the section’s content.

Item 20 Subsection 14A(1)

Section 14A relates to the exceptions that enable a registered NDIS provider to allow a person to engage in a risk assessed role when the person does not have a clearance. This amendment clarifies the circumstances in which the exceptions under paragraphs 14(1)(a) and 14(2)(a) do not apply.

Item 21 Paragraph 14A(2)(a)

This amendment incorporates the expression ‘acceptable NSW check’ that will now be defined in section 5 as amended by item 4.

Item 22 Paragraph 14A(2)(b)

This amendment incorporates the expression ‘acceptable SA check’ that will now be defined in section 5 as amended by item 4.

Item 23 Subsection 15(1)

This amendment inserts the word ‘subsection’ in a provision from which it is currently missing.

Item 24 Subsection 15(1)

This amendment changes the formatting of ‘process of obtaining a clearance’ to reflect the fact that the expression will now be defined in section 5 as amended by item 4.

Item 25 Subsection 15(2)

This amendment changes the formatting of ‘process of obtaining a clearance’ to reflect the fact that the expression will now be defined in section 5 as amended by item 4.

Item 26 Paragraphs 15(3)(a) and (aa)

This amendment clarifies when a person is regarded as having submitted a complete application to an NDIS worker screening unit where the person is an individual who is a registered NDIS provider.

Item 27 At the end of subsection 15(3)

This amendments moves the existing note from the end of paragraph 15(3)(a) to the end of new paragraph 15(3)(aa).

Item 28 Section 16

This amendment substitutes the existing section 16 with a new section 16 that clarifies that the requirements in Part 3 prescribe requirements in relation to records that a registered NDIS provider must keep.

Item 29 Subsection 17(1)

This amendment clarifies that the written list of risk assessed roles with a registered NDIS provider that is to be kept by the provider must, where the provider is an individual, include those in which the provider is engaged.

Item 30 Subsection 17(3)

This amendment clarifies that the written list of risk assessed roles is created or maintained for the purposes of section 17.  

Item 31 Subsections 18(1) to (3)

This amendment clarifies the requirements relating to the written list of risk assessed roles that must be kept and maintained for the purposes of section 18 including the information that must be included as part of that list.

Item 32 Paragraph 18(4)(d)

This amendment has the effect of inserting the word ‘paragraph’ in a provision from which it is currently missing.

Item 33 Paragraph 18(5)(b)

This amendment inserts the word ‘paragraph’ in a provision from which it is currently missing.

Item 34 Section 19 (heading)

This amendment repeals the existing heading for section 19 and creates a new heading.

Item 35 Section 19

This amendment repeals ‘(1)’ because it is unnecessary given that the section does not have a subsection (2).

Item 36 Paragraph 19(1)(b)

This amendment is consequential on the new definition for ‘appropriate contract’ at section 5A.

Item 37 Paragraph 19(1)(d)

This amendment omits ‘paragraph 13(3)(c)’ and substitutes ‘subparagraph 13(b)(iii)’ and is consequential on the amendments at section 13.

Item 38 Part 4 (heading)

This amendment repeals the existing heading to Part 4 and substitutes a new heading.

Item 39 Section 22

This amendment clarifies that Part 4 is made for the purposes of section 73T(1) and specifies the standards concerning the screening of workers and personnel when transitional arrangements apply in relation to a participating jurisdiction. In doing so, it makes clear that the NDIS Practice Standards in Part 4 apply to registered NDIS providers when the exceptions under section 14(1)(b) or 14(2)(b) apply.

Item 40 Paragraph 23(3)(a)

This amendment inserts ‘at that time’ after ‘acceptable NSW check’.

Item 41 Paragraph 23(3)(b)

This amendment repeals paragraph 23(3)(b) because the amendments made to subsections 23(4) to (8) mean that the concept of a ‘transition time for a person’ is no longer required.

Item 42 Subsections 23(4) to (8)

This amendment repeals the existing subsections 23(4) to (8) and substitutes new subsections which clarify the requirements with which a registered NDIS providers a must comply in order to allow a person to engage in a risk assessed role in NSW at a time when the person does not have a clearance.

The new subsection (4) is a consequence of the amendment in item 4, which adds a definition of ‘acceptable NSW check’ to section 5.

The new subsection (5) clarifies that a person will have an acceptable NSW check for the purposes of subsection (3)(a) at a time if:

 (a) at that time, the person is not engaging in child‑related work in the risk assessed role; and

 (b) a criminal record check in relation to the person was obtained:

 (i) no more than 4 years before that time; and

 (ii) on or before 30 June 2018; and

 (c) that criminal record check showed that the person had no conviction for a prescribed criminal offence; and

 (d) the person has not subsequently been subject to a criminal record check that showed that the person had a conviction for a prescribed criminal offence.

The new subsection (6) clarifies that a person will have an acceptable NSW check for the purposes of subsection (3)(a) at a time if:

 (a) at that time, the person is not engaging in child‑related work in the risk assessed role; and

 (b) a criminal record check in relation to the person was obtained:

 (i) no more than 2 years before that time; and

 (ii) during the transition period; and

 (c) that criminal record check showed that the person had no conviction for a prescribed criminal offence; and

 (d) the person has not subsequently been subject to a criminal record check that showed that the person had a conviction for a prescribed criminal offence.

The main purpose of the new subsections (5) and (6) is to clarify the length of time that a criminal record check can be relied upon by a registered NDIS provider allowing a person to engage in a risk assessed role in NSW without a clearance. 

The new subsection (7) clarifies that a person will have an acceptable NSW check for the purposes of subsection (3)(a) at a time if:

 (a) at that time, the person is engaging in child‑related work in the risk assessed role; and

 (b) at that time, a working with children check clearance (within the meaning of the Child Protection (Working With Children) Act 2012 (NSW) as in force from time to time) issued to the person is in force; and

 (c) that clearance was issued to the person on a day that is no later than the last day of the transition period.

The main purpose of the new subsection (7) is to clarify that a registered NDIS provider may allow a person who is issued a working with children check clearance prior to the end of the ‘transition period’ (as defined by subsection 23(12)), to engage in a child-related role in NSW without a clearance, so long as that working with children check clearance remains in force. Once it ceases to be in force, the person will be required to obtain a clearance from an NDIS worker screening unit.

Item 43 Subsection 23(11)

This amendment omits ‘subsection 14(b) of this instrument’ and substitutes ‘paragraph 14(1)(b) or (2)(b)’ and is principally consequential on the amendments made to section 14.

Item 44 Subsection 23(12)

This amendment adds definitions of ‘child-related work’, ‘criminal record check’ and ‘prescribed criminal offence’, which are terms used throughout section 23. The definition of ‘transition period’ is retained, unchanged.

Item 45 Subsection 24(6)

This amendment changes the formatting of ‘acceptable SA check’ to reflect the fact that the expression will now be defined in section 5.

Item 46 Paragraph 24(6)(c)

This amendments corrects a typographical error which previously left ‘to’ out of the provision.

Item 47 Subsection 24(6A)

This amendment changes the formatting of ‘acceptable SA check’ to reflect the fact that the expression will now be defined in section 5.

Item 48 Subparagraph 24(6A)(b(i)

This amendment corrects a typographical error that referred to ‘subparagraph (b)(i)’ rather than ‘subparagraph (a)(i)’.

Item 49 Subsection 24(6B)

This amendment changes the formatting of ‘acceptable SA check’ to reflect the fact that the expression will now be defined in section 5.

Item 50 Subsection 24(9)

This amendment omits ‘subsection 14(b) of this instrument’ and substitutes ‘paragraph 14(1)(b) or (2)(b)’ and is consequential on amendments to section 14.

Item 51 Subsection 24(10) (definition of acceptable SA check)

This amendments repeals the definition of ‘acceptable SA check’ and is consequential on the amendment of section 5 that creates a new definition of this expression for the purposes of the Rules.

Item 52 Subparagraph 25(5)(d)(iii)

This amendments omits ‘(within the meaning of section 15 of this instrument)’ and is consequential on the addition of a definition for ‘process of obtaining a clearance’ in section 5.

Item 53 Subsection 25(7)

This amendment omits ‘14(b) of this instrument’ and substitutes ‘14(1)(b) or (2)(b)’ and is consequential on amendments made to section 14.

Item 54 Subsection 26(7)

This amendment omits ‘14(b) of this instrument’ and substitutes ‘14(1)(b) or (2)(b)’ and is consequential on amendments made to section 14.

Item 55 Subsection 27(8)

This amendment omits ‘14(b) of this instrument’ and substitutes ‘14(1)(b) or (2)(b)’ and is consequential on amendments made to section 14.

Item 56 Subsection 28(8)

This amendment omits ‘14(b) of this instrument’ and substitutes ‘14(1)(b) or (2)(b)’ and is consequential on amendments made to section 14.

Item 57 Subsection 29(8)

This amendment omits ‘14(b) of this instrument’ and substitutes ‘14(1)(b) or (2)(b)’ and is consequential on amendments made to section 14.

Item 58 Subsection 29(9) (subparagraph (b)(i) of the definition of transition period)

This amendment replaces a reference to ’31 January 2020 with ‘30 June 2021’ to reflect the new commencement date of national worker screening in the Northern Territory.

Item 59 Section 30 (heading)

This amendment repeals the existing heading of section 30 and substitutes a new heading that indicates that the section relates to participating jurisdictions only.

Item 60 Amendments of listed provisions—participating jurisdictions

This item amends the provisions listed in the table in the item to replace the term ‘jurisdiction’ with the expression ‘participating jurisdiction’.

Item 61 Amendments of listed provisions—personnel

This item amends the provisions listed in the table to remove particular expressions as a consequence of other amendments relating to the term ‘personnel’.

Item 62 Amendments of listed provisions—references to State or Territory legislation

This item amends references in the Rules to State or Territory legislation to confirm that the references are to the legislation as in force from time to time.

Part 2—Amendments relating to Western Australia

The amendments in this Part of the Instrument insert the transitional arrangements that, pursuant to Part 4 of the Rules, will apply to a registered NDIS provider when delivering services or supports in Western Australia (WA) from 1 December 2020, when WA will become a participating jurisdiction.

Item 63 Section 5

This amendment creates a definition for ‘acceptable WA check’.

Item 64 At the end of subsection 14A(2)

This amendment includes a reference to an acceptable WA check for the purposes of section 14A(1)(c).

Item 65 After section 29

This amendment creates a new section 29A which contains the transitional arrangements for WA.

Subsection (1) provides that the section applies to a person or entity that has applied to be, or is, registered as a registered NDIS provider to delivery any class of support or service to a participant residing in Western Australia.

Subsection (2) provides that a registered NDIS provider is complying with the transitional arrangements when delivering services or supports in Western Australia if that provider complies with this section. This is included for the purposes of section 14(1)(b)(i) and 14(2)(b)(i).

Subsection (3) provides that a registered NDIS provider may allow a person to engage in a risk assessed role at a time when the person does not have a clearance if:

(a)  the person has an acceptable WA check at that time (as defined in subsections (5) and (6)); and

(b)  a notice (if any) issued to the provider by the Commissioner pursuant to subsection (7) has not yet come into effect.

Subsection (4) provides that a registered NDIS provider may allow a person to work in a risk assessed role at a time when the person is:

(a)  a secondary school student on a formal work experience placement with the registered NDIS provider; and

(b)  the person is directly supervised by a person who has an acceptable WA check at that time; and

(c)   a notice (if any) issued to the provider by the Commissioner pursuant to subsection (7) has not yet come into effect.

Subsection (5) defines what will constitute an acceptable WA check of a person if the person is engaged by the registered NDIS provider in a risk assessed role prior to 1 December 2020 and has since then continued to be engaged in a risk assessed role by that registered NDIS provider. In those circumstances, the person will have an acceptable WA check at a time (‘the relevant time’) before 1 February 2023 if:

(a)  at the relevant time, the person is engaged by the registered NDIS provider; and

(b)  the person had been engaged by the registered NDIS provider on a day (the engagement day) before 1 December 2020 and has been continuously engaged with the registered NDIS provider since the engagement day; and

(c)   a national police check in relation to the person had been obtained from a checking agency no more than 3 years before both:

(i)                 the relevant time; and

(ii)                1 February 2021;

(d)  the national police check showed that the person had no conviction for a relevant offence; and

(e)  at the relevant time, the registered NDIS provider is not aware of the person being subsequently convicted of a relevant offence; and

(f)     if the risk assessed role involves the person engaging in child-related work—on a day that is no later than the last day of the transition period:

(i)                 the person had been issued with an assessment notice, or further assessment notice, and at the relevant time that assessment notice is in effect and has not expired or been cancelled; or

(ii)                the person had made an application for an assessment notice, or a further assessment notice, and at the relevant time the person has been issued with an assessment notice in relation to that application and that assessment notice is in effect and has not expired or been cancelled; or

(iii)              the person had made an application for an assessment notice, or a further assessment notice, and at the relevant time that application has not been decided or withdrawn and the person has not been issued with an interim negative notice in relation to that application.

A person who is engaged in a risk assessed role prior to 1 December 2021, and whose national police check becomes more than three years old prior to 1 February 2021, may obtain a new national police check prior to 1 February 2021. That national police check will have effect for the purposes of an acceptable WA check until the expiry of a period of 3 years, or until 1 February 2023 – whichever is the earlier. After 1 February 2023, subsection (5) will no longer apply.

Subsection (5) will cease to apply to a person who is engaged in a risk assessed role prior to 1 December 2021 and whose national police check becomes more than three years old after 1 February 2021 and who has not obtained another national police check during the period 1 December 2020 to 1 February 2021. In those circumstances, the registered NDIS provider must require the person to obtain a clearance from an NDIS worker screening unit.

If engaging in child-related work, a person must have applied for or received an assessment notice or further assessment notice prior to 1 February 2023. An assessment notice cannot be relied upon if it has been expired or cancelled. An application for an assessment notice or further assessment notice cannot be relied upon for the purposes of section 29A(5)(f) if the application has been withdrawn, or if the person has been issued with an interim negative notice in relation to that application.

Subsection (6) defines what will constitute an acceptable WA check of a person if the person is engaged by the registered NDIS provider in a risk assessed role during the period 1 December 2020 to 1 February 2021. In those circumstances, a person will have an acceptable WA check at a time prior to 1 February 2023 if:

(a)  at the relevant time, the person is engaged by the registered NDIS provider; and

(b)  the person had begun that engagement with the registered NDIS provider on or after 1 December 2020 and before 1 February 2021; and

(c)   a national police check in relation to the person was obtained from a checking agency no more than 12 months before both:

(i)                 the relevant time; and

(ii)                the day the person began that engagement; and

(d)  the national police check showed that the person had no conviction for a relevant offence; and

(e)  at the relevant time, the registered NDIS provider is not aware of the person being subsequently convicted of a relevant offence; and

(f)     if the risk assessed role involved the person engaging in child-related work:

(i)                 the person had been issued with an assessment notice, or further assessment notice, and at the relevant time that assessment notice is in effect and has not expired or been cancelled; or

(ii)                the person had made an application for an assessment notice, or a further assessment notice, and at the relevant time the person has been issued with an assessment notice in relation to that application and that assessment notice is in effect and has not expired or been cancelled; or

(iii)              the person had made an application for an assessment notice, or a further assessment notice, and at the relevant time that application has not been decided or withdrawn and the person has not been issued with an interim negative notice in relation to that application.

A person who is engaged in a risk assessed role on or after 1 December 2020 and before 1 February 2021, and whose national police check becomes more than 12 months old prior to 1 February 2021, may obtain a new national police check prior to 1 February 2021. That national police check will have effect for the purposes of an acceptable WA check for 12 months following the date that it is issued. Once that subsequent national police check becomes more than 12 months old, which will be on a date after 1 February 2021, subsection (6) will no longer apply to the person and the registered NDIS provider will need to ensure that  the person to obtain a clearance from an NDIS worker screening unit.

Similarly to the effect of subsection (5), if engaging in child-related work, a person must have applied for or received an assessment notice or further assessment notice prior to 1 February 2023. An assessment notice cannot be relied upon if it has been expired or cancelled. An application for an assessment notice or further assessment notice cannot be relied upon for the purposes of section 29A(6)(f) if the application has been withdrawn, or if the person has been issued with an interim negative notice in relation to that application.

Subsection (7) provides that the Commissioner may give a written notice to a registered NDIS provider that paragraph 14(1)(b) or (2)(b) no longer applies to the provider from the day specified in the notice (which must be at least 14 days after the notice is given). An equivalent provision is included in the transitional and special arrangements that apply to other participating jurisdictions.

Subsection (8) creates definitions for the following terms:

• ‘assessment notice’
• ‘checking agency’
• ‘child-related work’
• ‘further assessment notice’
• ‘interim negative notice’
• ‘relevant offence’
• ‘transition period’.

The definitions are as follows:

‘assessment notice’ is defined to have the same meaning as in the Working with Children (Criminal Record Checking) Act 2004 (WA), as in force from time to time.

‘checking agency’ is defined to mean a State or Territory police service, or an agency accredited by the Australian Criminal Intelligence Commission in relation to the provision of a national police check.

‘child-related work’ is defined to have the same meaning as in the Working with Children (Criminal Record Checking) Act 2004 (WA), as in force from time to time.

‘further assessment notice’ is defined to have the same meaning as in the Working with Children (Criminal Record Checking) Act 2004 (WA), as in force from time to time.

‘interim negative notice’ is defined to have the same meaning as in the Working with Children (Criminal Record Checking) Act 2004 (WA), as in force from time to time.

‘relevant offence’ is defined to be an offence committed by a person if:

(a)  The person was at least 18 years old when the offence was committed; and

(b)  The offence involved, or related to, any of the following:

(i)     An offence under section 192 of the Children and Community Services Act 2004 (WA), as in force from time to time;

(ii)   An offence under section 181, 186, 187, 279 or 283, subsection 306(4), section 320 or 322, subsection 329(2), (3), (4), (5) or (6) or section 330 of The Criminal Code (WA), as in force from time to time;

(iii) an offence under section 16, 17 or 18 of the Prostitution Act 2000 (WA), as in force from time to time;

(iv) an offence under a law of another participating jurisdiction that is equivalent to an offence mentioned in subparagraph (i), (ii) or (iii);

(v)   a class 1 offence or a class 2 offence within the meaning given by the National Disability Insurance Scheme (Worker Screening) Act 2020 (WA), as in force from time to time.

In relation to paragraph (v), the proposed National Disability Insurance Scheme (Worker Screening) Act 2020 (WA) had not been passed as at the date of this Explanatory Statement. If and when it is passed it will have an effect on the definition of ‘relevant offence’.

‘transition period’ is defined to be the period:

(a)  starting on 1 December 2020; and

(b)  ending on the earlier of:

(i)      31 January 2023; and

(ii)   The day notice is given under section 30 that the NDIS worker screening unit is operational is Western Australia.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

NATIONAL DISABILITY INSURANCE SCHEME (PRACTICE STANDARDS – WORKER SCREENING) AMENDMENT RULES 2020

The National Disability Insurance Scheme (Practice Standards – Worker Screening) Amendment (Miscellaneous Measures) Rules 2020 (the Instrument) 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 Instrument

The Instrument amends the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (the Rules).

The Rules give effect to the NDIS Commissioner’s core function to develop and oversee the broad policy design for a nationally consistent framework to the screening of workers in the NDIS and form part of the framework to support the delivery of services and supports to people with disability under the National Disability Insurance Scheme (NDIS).

The Rules set out the requirements for registered NDIS providers in relation to the screening of workers, with the aim of minimising the risk of harm to people with disability from the people working closely with them.

The NDIS worker screening system is a national system given effect by the cooperative efforts of the Commonwealth, States and Territories. The arrangement between the Commonwealth and the jurisdictions is recorded in the Intergovernmental Agreement on Nationally Consistent Worker Screening for the Disability Insurance Scheme (the Agreement). 

The Instrument makes amendments for the purpose of clarifying requirements that apply to registered NDIS providers where the existing language of provisions is potentially unclear or ambiguous. This includes:

• clarifying the requirements that apply to a registered NDIS provider that is an individual as opposed to an organisation;
• clarifying the transitional arrangements that apply to registered NDIS providers in New South Wales;
• correcting some incorrect references to provisions in the transitional arrangements that apply to registered NDIS providers in South Australia;
• clarifying that the transitional arrangements for the states and territories will cease to apply in relation to a person where the person has applied to an NDIS worker screening unit for a clearance and is subject to an exclusion or been issued an interim bar in response to the application, or is subject to suspension or cancellation in relation to that clearance;
• updating references to state and territory legislation so that references are to the legislation as in force from time to time;
• clarifying the requirements for the registered NDIS provider to enter into an ‘appropriate contract’ in certain circumstances and when those requirements apply; and
• clarifying which requirements are NDIS Practice Standards made for the purposes of section 73T(1) of the Act and which are record keeping requirements made for the purpose of section 73Q of the Act.

The Instrument also broadens and amends some definitions contained in the Rules.

The definition of ‘worker’ is broadened to include ‘key personnel’ to ensure that a registered NDIS provider’s screening obligations apply with respect to its key personnel and to more closely align the definition with the definition of ‘worker’ in the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018.

The definitions of ‘personnel’ and ‘personnel provider’ have been added and the concept of ‘other personnel’ has been repealed. These amendments are for the purpose of clarifying the requirements that apply to registered NDIS providers that provide supports and services to people with disability by entering into an appropriate contract with other persons or entities.

The Instrument also prescribes transitional arrangements that will apply to providers in Western Australia when it becomes a participating jurisdiction on 1 December 2020 and extends the transition period for the Northern Territory.

Background

While the primary responsibility for recruiting and providing a safe environment for people with disability rests with employers (including sole traders and self-employed), a worker screening outcome is one source of information that can support employers in fulfilling this responsibility. Part of ensuring that registered NDIS providers are able to fulfil their obligations in relation to national worker screening is to ensure that registered NDIS providers understand and are aware pf those requirements.

The Commissioner is responsible for working with all Australian Governments to develop and oversee the broad policy design for a nationally consistent approach to screening of workers delivering supports and services to people with disability (paragraph 181E(f) of the Act).

Human rights implications

The Rules as amended by the Instrument engage the following rights under international human rights law:

• the rights of people with disabilities, especially Article 16 of the Convention on the Rights of Persons with Disabilities (CRPD)
• the right to equality and non-discrimination (Article 2) and the right to work (Article 6) of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
• the right to privacy in Article 17 of the International Covenant on Civil and Political Rights (ICCPR)

The Instrument amends the Rules to ensure that the promotion of these rights is ongoing during the transition period that applies to each of the States and Territories and after the commencement of national worker screening across Australia.

Rights of people with disability – Article 16 of the CRPD

The Rules as amended by the Instrument promote the rights of persons with disability consistent with Australia’s obligations by ensuring that the supports and services provided through the NDIS are delivered by a suitable workforce.

The Rules as amended by the Instrument support a nationally consistent approach to worker screening which is an important element of the design of the NDIS and the NDIS Quality and Safeguarding Framework that minimises the risk of harm to people with disability from the people who work closely with them. A nationally consistent and recognised worker screening regime promotes the rights of people with disability by:

• sending a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected
• reducing the potential for providers to employ or engage workers or personnel who pose a high risk of harm to people with disability
• prohibiting those persons, that pose a high risk or are proven to have harmed vulnerable people, from working in the sector, and
• deterring individuals who pose a high risk of harm from seeking work in the sector.

The Rules as amended by the Instrument set out NDIS Practice Standards that apply to all registered NDIS providers for screening of workers and other personnel, including the requirement to:

• assess all roles and identify risk assessed roles, regardless of whether the duties of the role are performed by a worker or a member of other personnel
• have and maintain a risk management plan for protecting people with disability while a worker or any personnel is in the process of obtaining a NDIS worker screening clearance, and the minimum standards that the risk management plan must meet
• only allow workers to engage in a risk assessed role if they hold an NDIS worker screening clearance or are subject to limited exceptions
• only allow a person who falls within the definition of personnel to engage in a risk assessed role if there is an appropriate contract in place with the person who has made the services of the personnel available to the provider, and the provider has taken certain steps to ensure that any personnel have a clearance
• keep records relating to risk assessed roles, records of workers who engage in risk assessed roles, and records relating to the engagement of personnel.

The Rules as amended by the Instrument promote the rights of persons with disability consistent with Australia’s obligations by ensuring that the paramount consideration of NDIS worker screening is the right of people with disability to live lives free from abuse, violence, neglect and exploitation.

Rights to equality and non-discrimination, and work – Articles 2 and 6 of the ICESCR

Article 2 of the ICESCR provides that rights enunciated within it will be exercised without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.

Article 6 of the 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 paramount objective of the Rules as amended by the Instrument is to protect people with disability from experiencing harm arising from unsafe supports or services under the NDIS.

Consistent with this objective, worker screening is required for roles with registered NDIS providers that have been identified as requiring particular mitigation of the risk of harm to people with disability.  Those roles are called risk assessed roles.  Worker screening obligations are not imposed in relation to other roles.  This reflects a targeted, measured approach to the risk.

Risk assessed roles fall into three categories.  Those categories are roles for which the normal duties involve direct delivery of particular, identified classes of supports or services, delivery of other NDIS supports or services that entails more than incidental contact with a person with disability; or performance of a key executive, management and operational position. A registered NDIS provider is required to ensure that its workers and other personnel have successfully undergone the necessary screening processes, before allowing them to engage in these kinds of roles.  This is a condition of registration as a registered NDIS provider.

This recognises that some NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse.

Criminal history checks and other forms of pre-employment screening are conducted as a matter of routine for a range of occupations to allow employers to make recruitment decisions which support a safe and secure workplace for workers and people with disability.

However, governments recognise that some individuals, by virtue of their history, have valuable lived experiences to share with people with disability accessing NDIS supports and services. It is recognised that people with lived experience who have committed an offence or misconduct in the past can make significant changes in their lives.

The NDIS Commission works with all governments to put in place a nationally consistent, risk-based decision-making framework for considering a person’s criminal history and patterns of behaviour over time to guard against the unreasonable exclusion of people who have committed an offence or misconduct from working in the disability sector, where this is not relevant to their potential future risk to people with disability.

Under the national policy for NDIS worker screening, States and Territories will provide certain review and appeal rights to individual workers who may be subject to an adverse decision. Individuals will be able to seek a review of an adverse decision, consistent with the principles of natural justice and procedural fairness. Where there is an intention to make an adverse decision, States and Territories will disclose the reason why the adverse decision is proposed, except where the NDIS worker screening units is required under Commonwealth, State or Territory law to refuse to disclose the information; allow the individual a reasonable opportunity to be heard; and consider the individual’s response before finalising the decision.

The Instrument supports a proportionate approach to safeguards that does not unduly prevent a person from choosing to work in the NDIS market, but ensures the risk of harm to people with disability is minimised, by excluding workers whose behavioural history indicates they pose a risk to certain services and supports.

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 his privacy, family, home or correspondence, nor to unlawful attacks on his honour and reputation, and that everyone has the right to the protection of the law against such interference or attacks.

As part of national worker screening, NDIS worker screening units will obtain information about the criminal history of a person to be used in the assessment of whether or not a person will obtain a clearance. The NDIS worker screening unit will conduct an assessment of the information that is available in order to make a decision determining the outcome of an application for an NDIS worker screening check.

NDIS worker screening units are part of government agencies or departments and are required to ensure that any disclosure of information is lawful. This helps to ensure the maintenance and the protection of the privacy of individuals from unlawful interference.

Personnel providers, employers and other persons who are provided the outcome of a clearance are given only the outcome of the NDIS worker screening check and are not, without lawful authority, given any information that was used to inform the outcome of that check.

The Instrument amends the Rules to require that a personnel provider give information about a person’s clearance to a registered NDIS provider as part of the requirements of an appropriate contract. This requirement is limited to information about the clearance, and not information that was used to inform the decision about the clearance. Even if the personnel provider had information relevant to the NDIS worker screening Check, which is unlikely, that information is not captured by the requirements of the appropriate contract.

Conclusion

The National Disability Insurance Scheme (Practice Standards – Worker Screening) Amendment Rules 2020 advance the protection of the rights of people with disability in Australia consistent with the CRPD, particularly in relation to preventing exploitation, violence and abuse in the disability sector. To the extent they impinge on the human rights of workers, the impositions are reasonable, necessary and proportionate to achieving the protection of people with disability and confidence in the safety of the NDIS market, thereby ensuring the long‑term integrity and sustainability of the NDIS.

Robert Griew, Acting Commissioner of the NDIS Quality and Safeguards Commission