Part 6Screening of persons working with people with disability

Part 6—Screening of persons working with people with disability Editorial note— Part 6 had not come into operation at the date of the publication of this version. 19—Interpretation (1) In this Part— assessable information means information declared by the regulations to be assessable information for the purposes of this Part; excluded person means a person, or a person of a class, declared by the regulations to be an excluded person for the purposes of this definition; prescribed offence means an offence, or offence of a class, prescribed by the regulations for the purposes of this Part; prescribed position means— (a) a position in which a person works, or is likely to work, with people with disability; or (b) any other position, or a position of a class, prescribed by the regulations for the purposes of this definition; prohibition notice means a notice prohibiting a specified person from working with people with disability issued to a person in accordance with the regulations; records management system means the records management system established under section 22D; screening check—see section 23(1); unique identifier, in relation to a person, means the unique identifier issued or recognised in respect of the person under the regulations. (2) For the purposes of this Part, a reference to a person being employed will be taken to include a reference to a person who— (a) is a self‑employed person; or (b) carries out work under a contract for services; or (c) carries out work as a minister of religion or as part of the duties of a religious or spiritual vocation; or (d) undertakes practical training as part of an educational or vocational course; or (e) carries out work as a volunteer; or (f) performs unpaid community work in accordance with an order of a court, and a reference to an employer, employee or employment is to be construed accordingly. 20—Working with people with disability For the purposes of this Act, a person works with people with disability if the person— (a) in the course of their employment provides a service, or undertakes an activity, of a kind prescribed by the regulations for the purposes of this section; or (b) carries on a business in the course of which an employee provides a service, or undertakes an activity, of a kind referred to in paragraph (a) (whether or not the person themself provides such a service, or undertakes such an activity). 21—Certain persons prohibited from working with people with disability (1) The following persons (prohibited persons) are prohibited from working with people with disability: (a) a person to whom a prohibition notice has been issued; (b) a person who, under a law of the Commonwealth, or of another State or Territory, is prohibited from working with people with disability (however described); (c) a person who has been found guilty of a prescribed offence committed as an adult. (2) Subsection (1)(c) applies in relation to a prescribed offence— (a) whether the offence was committed before or after the commencement of this section; and (b) whether the finding of guilt was made before or after the commencement of this section. (3) A person who works with a person with disability in contravention of subsection (1) is guilty of an offence. Maximum penalty: $50 000 or imprisonment for 1 year. (4) An employer who employs, or continues to employ, a prohibited person in a prescribed position is guilty of an offence. Maximum penalty: (a) in the case of a natural person—$50 000 or imprisonment for 1 year; or (b) in the case of a body corporate—$120 000. 22—Working with people with disability without current screening check prohibited (1) Subject to this section, a person must not work with people with disability unless a screening check has been conducted in relation to the person within the preceding 5 years. Maximum penalty: (a) for a first or second offence—$20 000; (b) for a third or subsequent offence—$50 000 or imprisonment for 1 year. (2) Subsection (1) does not apply to an excluded person. 22A—Steps employers must take before employing person in prescribed position (1) An employer must not employ a person in a prescribed position unless the employer has— (a) obtained from the person their full name, address, date of birth and unique identifier; and (b) verified, in accordance with the regulations, that— (i) a screening check has been conducted in relation to the person within the preceding 5 years; and (ii) the person is not a prohibited person; and (c) provided to the central assessment unit— (i) the name, address, telephone number and email address of the business at which the person is to be employed; and (ii) the name and contact details of the person who verified the matters referred to in paragraph (b). (2) Subsection (1) does not apply in relation to a prospective employee who is an excluded person. 22B—Employer to ensure screening check conducted at least every 5 years (1) An employer must not continue to employ a person in a prescribed position unless a screening check has been conducted in relation to the person within the preceding 5 years. (2) An employer who employs a person in a prescribed position must, at least once in every 5 year period, verify, in accordance with the regulations, that— (a) a screening check has been conducted in relation to the person within the preceding 5 years; and (b) the person is not a prohibited person. (3) Subsections (1) and (2) do not apply in relation to an employee who is an excluded person. 22C—Employer to advise central assessment unit of certain information (1) The employer of a person employed in a prescribed position must notify the central assessment unit if— (a) the employer becomes aware of any assessable information in relation to the person; or (b) the employer becomes aware that the person is prohibited from working with people with disability under a law of the Commonwealth, or of another State or Territory. (2) A notice under subsection (1)— (a) must be given in a manner and form determined by the central assessment unit; and (b) must be given as soon as is reasonably practicable after the employer becomes aware of the relevant matter; and (c) must contain the information required by the regulations for the purposes of this paragraph. (3) An employer must not refuse or fail to comply with subsection (1). Maximum penalty: $25 000. (4) Subsection (1) does not apply in relation to an employee who is an excluded person. 22D—Records management system (1) Subject to this section, the Registrar must establish and maintain a records management system for the purposes of this Act. (2) The records management system must include the information required by the regulations, and may contain such information as the Registrar thinks appropriate. (3) The Registrar must correct an entry in the records management system that is not, or has ceased to be, correct. (4) The Registrar must ensure that the records management system is such as to enable a person to inspect the records management system in accordance with the regulations. (5) The Registrar must ensure that the records management system is such as to enable a person to obtain, in accordance with any requirements set out in the regulations, evidence of the fact that the person has inspected or interrogated the records management system. (6) The Registrar must ensure that the records management system is such as to enable a person to whom a unique identifier is issued to obtain without charge that identifier, or evidence of that identifier. (7) The records management system under this Part may be combined with the records management system under the Child Safety (Prohibited Persons) Act 2016. 22E—Inspection of records management system (1) The Registrar must ensure that the central assessment unit has direct and unrestricted access to the records management system for the purposes of its functions under this Act. (2) The records management system may be inspected (without charge) by any person. (3) A person who interrogates the records management system under this Act must be provided with evidence of that fact in accordance with the regulations. (4) The regulations may make further provision in respect of inspection of the records management system (including provisions limiting access to specified parts of the system, or to information of a specified kind). 23—Regulations to set out scheme for screening checks (1) The Governor may, by regulation, establish a scheme for the screening of persons working with, or who are to work with, people with disability (a screening check). (2) Without limiting the matters that may be the subject of regulations under this section, the regulations may make provisions— (a) requiring that screening checks be undertaken by a specified person or body; (b) exempting a specified person, or specified class of persons, from the operation of section 22(1) in specified circumstances (including, to avoid doubt, where an application for a screening check is not processed within a specified period); (c) prescribing information, or classes of information, that may or must, or must not, be assessed in the course of a screening check; (d) recognising working with children checks under the Child Safety (Prohibited Persons) Act 2016, or other assessments of a person's criminal or other history under any other Act, as a screening check for the purposes of this Part; (da) recognising NDIS worker check clearances or NDIS worker check exclusions (both within the meaning of Part 5A) as a screening check or prohibition notice for the purposes of this Part; (e) providing for, or limiting, procedural fairness to be afforded in the conduct of screening checks; (ea) imposing requirements relating to the provision of information to the central assessment unit, and the disclosure and use of such information; (f) imposing requirements in relation to the confidentiality of information; (g) imposing requirements in respect of the keeping of records; (h) providing for reviews of, or appeals against, decisions made in the course of a screening check; (i) of an evidentiary nature relating to the operation of this Part. (3) Without limiting a preceding subsection, the regulations may make such provisions as may be necessary or appropriate to make the screening check scheme under this Part consistent with the working with children check scheme under the Child Safety (Prohibited Persons) Act 2016.