Part 5AScreening of NDIS workers

Part 5A—Screening of NDIS workers 18A—Interpretation (1) In this Part— authorised person means— (a) the central assessment unit; or (b) a person or body exercising functions in the operation or administration of a relevant law; or (c) the NDIS Commission; or (d) a law enforcement agency of this or any other jurisdiction (including a jurisdiction outside Australia); or (e) any other person declared by the regulations to be included in the ambit of this paragraph; authorised purpose means any purpose that is for, or in connection with, the operation or administration of, or compliance with, a relevant law, and includes (without limitation) the following purposes: (a) verification of the identity of a person who is, or who has at any time been, an applicant for, or the holder of, a clearance or other authority under a relevant law; (b) consideration and determination of a person's application for a clearance or other authority under a relevant law; (c) assessing and determining under a relevant law whether a person poses a relevant risk of harm; (d) assessing and determining whether a risk assessment of a person is required under a relevant law; (e) ongoing monitoring of a person who holds a clearance or other authority under a relevant law for the purpose of determining whether the person requires a risk assessment or poses a relevant risk of harm; (f) administrative review (including internal review) of a decision under a relevant law; corresponding law means— (a) a law of the Commonwealth, or of another State or Territory, that corresponds to this Part; or (b) any other law of the Commonwealth, or of another State or Territory, that is prescribed by the regulations as a corresponding law for the purposes of this Part; criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety; disqualification offence means an offence, or class of offences, declared by the regulations to be a disqualification offence; disqualified person—see section 18B(1); engage means engage in any of the following capacities: (a) as a paid or unpaid employee; (b) as a self‑employed person or as a contractor or subcontractor; (c) as a volunteer; Intergovernmental Agreement means the agreement between the States, Territories and the Commonwealth titled Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme (including its Schedules), as in force from time to time; NDIS Act means the National Disability Insurance Scheme Act 2013 of the Commonwealth and includes the rules under that Act; NDIS Commission means the NDIS Quality and Safeguards Commission established under the NDIS Act; NDIS employer means a person who engages a person to do NDIS work; NDIS purpose means an authorised purpose where the reference to a relevant law in the definition of authorised purpose is limited to this Part, a corresponding law or the NDIS Act; NDIS work means work comprising, or in connection with, the provision of supports or services to people with disability under the National Disability Insurance Scheme, being work— (a) that is the subject of requirements under the NDIS Act for a person to hold a clearance under this Act or a corresponding law in order to be allowed by a registered NDIS provider to engage in that work; or (b) that the central assessment unit is satisfied is work in respect of which it is otherwise necessary or convenient for a person to hold a clearance to facilitate the person's engagement in that work; NDIS worker check clearance or clearance means an NDIS worker check clearance granted under this Part; NDIS worker check exclusion or exclusion means an NDIS worker check exclusion issued under this Part; notifiable person in relation to an applicant for a clearance or the holder of a clearance means— (a) any NDIS employer who engages or proposes to engage the applicant or holder; or (b) any other person, or class of persons, prescribed by the regulations for the purposes of this definition; presumptive disqualification offence means an offence, or class of offences, declared by the regulations to be a presumptive disqualification offence but does not include an offence that is a disqualification offence; presumptively disqualified person—see section 18B(3); protected information means information that may, if disclosed— (a) prejudice a criminal investigation; or (b) identify, or enable the identification of, a person with disability who has been harmed, or is at risk of harm; or (c) identify, or enable the identification of, a parent, guardian or family member of a person referred to in paragraph (b); or (d) identify, or enable the identification of, a person who has made a report or notification that a person with disability has been harmed, or may be at risk of harm (whether under this Act or otherwise); or (e) endanger a person's life or physical safety or wellbeing, and includes information that is protected information under the Child Safety (Prohibited Persons) Regulations 2019; relevant information, in relation to a person, means— (a) information relevant to verification of the identity of the person; or (b) information about the person disclosed in an application for a clearance or other authority under a relevant law; or (c) information relating to the person's criminal history in the State or any other jurisdiction; or (d) information about workplace misconduct by the person in the State or any other jurisdiction, being misconduct that concerns persons to whom a relevant risk of harm relates (whether or not such information was obtained in the course of, or relates to, disciplinary proceedings relating to the person); or (e) information about any order imposed on the person by a court relating to child protection, apprehended violence or domestic or family violence in the State or any other jurisdiction; or (f) information relevant to determining whether the person requires a risk assessment under a relevant law; or (g) information about the person's clearance history; or (h) information about any current or past engagement of the person by an NDIS employer in this or any other jurisdiction; or (i) other information relevant to determining whether the person poses a relevant risk of harm; relevant law means— (a) this Act; or (b) a corresponding law; or (c) the NDIS Act; or (d) the Child Safety (Prohibited Persons) Act 2016; or (e) any other law of the Commonwealth, or another State or Territory, prescribed by the regulations for the purposes of this paragraph; relevant risk of harm means a risk of harm to persons with whose protection a relevant law is concerned; risk assessment, of a person, means a risk assessment of the person under Division 3; risk of harm—see section 18M. (2) For the purposes of the definition of relevant information, a reference in that definition to information will be taken to include a reference to information— (a) whether the information was obtained before or after the commencement of this section; (b) whether the conduct, finding of guilt or other matter to which the information relates occurred before or after the commencement of this section; (c) whether the conduct, finding of guilt or other matter to which the information relates occurred in this State or another jurisdiction; (d) regardless of the outcome of any legal or other proceedings to which the information relates. (3) For the purposes of this Part, a reference to a person's clearance history will be taken to be a reference to the history of action taken under a relevant law in respect of an application for a clearance by the person, or a clearance held by the person under the relevant law, including any exclusion, risk assessment determination, refusal of an application and the suspension or cancellation of a clearance. (4) For the purposes of this Part, a reference to a person being found guilty of an offence will be taken to include a reference to— (a) a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of an offence are established (whether or not the person was found not criminally responsible due to mental incompetence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or (b) any finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a). (5) For the purposes of this Part, a reference to a person who has been found guilty of a presumptive disqualification offence will be taken to include a reference to a person who has been charged with a disqualification offence or presumptive disqualification offence committed as an adult, but where the charge has not yet been finally determined. (6) For the purposes of this Part— (a) a self‑employed person who does NDIS work will be taken to be an NDIS employer who engages themselves to do that work; and (b) a person may do NDIS work as a volunteer on their own account (in which case the person is to be regarded as being self‑employed as a volunteer). (7) Except where the contrary intention appears, a term or phrase used in this Part that is defined in the NDIS Act has the same meaning as in that Act. (8) In the interpretation of this Part, consideration may be given to the provisions of the Intergovernmental Agreement. 18B—Meaning of disqualified and presumptively disqualified persons (1) For the purposes of this Part, a person is a disqualified person if the person has been found guilty of a disqualification offence committed as an adult (whether the offence was committed, or the finding of guilt made, before or after the commencement of this section). (2) Despite section 18A(4), for the purposes of subsection (1) a reference to a person being found guilty of a disqualification offence will be taken not to include a reference to— (a) a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of a disqualification offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or (b) a finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a). (3) For the purposes of this Part, a person is a presumptively disqualified person if— (a) the person has been found guilty of a presumptive disqualifying offence committed as an adult (whether the offence was committed, or the finding of guilt made, before or after the commencement of this section); or (b) a finding of a kind referred to in subsection (2) has been made in relation to the person. 18C—Criminal intelligence (1) If the central assessment unit makes a decision under this Part on the basis of information that is classified by the Commissioner of Police as criminal intelligence, the central assessment unit is not required to provide any grounds or reasons for the decision other than that it would be contrary to the public interest to allow the person to work with people with disability. (2) In any proceedings under this Part, the court determining the proceedings— (a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner of Police by way of affidavit. 18D—Protected information (1) The Registrar may, in accordance with any requirements set out in the regulations, classify specified information as protected information. (2) If the central assessment unit makes a decision under this Part on the basis of information that is classified by the Registrar as protected information, the central assessment unit is not required to provide any grounds or reasons for the decision other than that it would be contrary to the public interest to allow the person to work with people with disability. (3) In any proceedings under this Act, the court determining the proceedings— (a) must, on the application of the Registrar, take steps to maintain the confidentiality of information classified by the Registrar as protected information, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of, or relating to, information that is so classified by the Registrar by way of affidavit. 18E—Powers of delegation (1) The central assessment unit may delegate a function or power under this Part (other than a prescribed function or power) to the Registrar or a specified body or person (including a person for the time being holding or acting in a specified office or position). (2) The Registrar may delegate a function or power under this Part (other than a prescribed function or power) to a specified body or person (including a person for the time being holding or acting in a specified office or position). (3) A delegation under this section— (c) does not derogate from the ability of the central assessment unit or the Registrar (as the case requires) to act in any matter; and (4) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. 18F—Pending applications to be disregarded For the purposes of this Part— (a) a person will be taken not to have been granted an NDIS worker check clearance merely because they have made an application for a clearance that has not yet been determined; and (b) nothing in this Part authorises an applicant for an NDIS worker check clearance that has not yet been determined to undertake NDIS work.