National Disability Insurance Scheme (Worker Clearance) Act 2020 (Northern Territory)

Mechanically, the National Disability Insurance Scheme (Worker Clearance) Act 2020 creates a statutory, territory-level worker screening and clearance regime for people who do work connected with provision of supports or services to NDIS participants. The Act establishes the following concrete mechanisms: a Screening Agency (declared by the Minister, s 13); an application process with prescribed forms, identity proofs and fees (ss 17, 57, 58); mandatory applicant consents that enable criminal history and disciplinary checks and database entry (s 18); a statutory assessment process including criminal history and NDIS Commission disciplinary information (ss 22-23); risk assessments where an interim bar or suspension is imposed (ss 34-39); portable clearances valid across roles and employers within the NDIS for five years unless surrendered, suspended or cancelled (s 24(2), s 25); ongoing monitoring by the Screening Agency (s 27); information sharing powers and limits for the Screening Agency and other authorised persons (Part 4, ss 45-52); offences and penalties for unauthorised use, disclosure, misleading information and refusal to comply with information requests (Part 5, ss 53-56); internal review (CEO-appointed reviewer) and Tribunal review routes via NTCAT, with confidentiality protections for classified information (Parts 3 and ss 42-44); and administrative features such as evidentiary certificates, forms and statutory immunity for good faith exercise of powers (ss 57-60).

The Act explicitly states its objects in s 3. Those objects are claims by the legislature that the screening checks are intended to protect participants from harm, demonstrate the priority of participant safety, reduce the engagement of individuals who pose unacceptable risks, prohibit those with a history of harm from more than incidental contact with participants, and deter risky persons from seeking NDIS work. The Act also lists guiding principles that shape screening activity (s 4): human rights, provider duty of care, risk-based decision-making, proportionality, consistency, privacy, natural justice and administrative efficiency. Those objects and principles are stated aims; the Act operationalises them through the mechanisms listed above.

NORTHERN TERRITORY OF AUSTRALIA NATIONAL DISABILITY INSURANCE SCHEME (WORKER CLEARANCE) ACT 2020 As in force at 26 May 2021 Table of provisions Part 1 Preliminary matters 1 Short title ......................................................................................... 1 2 Commencement .............................................................................. 1 3 Objects of Act .................................................................................. 1 4 Principles guiding screening checks ................................................ 2 5 Act binds Crown .............................................................................. 2 6 Application of Act ............................................................................. 3 7 Interpretation ................................................................................... 3 8 Meaning of more than incidental contact ......................................... 6 9 Meaning of NDIS work ..................................................................... 7 10 Meaning of presumed disqualified person ....................................... 7 11 Meaning of risk assessed role ......................................................... 8 12 Meaning of volunteer ....................................................................... 8 13 Screening Agency ........................................................................... 8 14 Application of Criminal Code ........................................................... 9 Part 2 NDIS worker clearance Division 1 Acceptance of applications 15 Acceptance date for application for screening check....................... 9 16 Persons ineligible to apply for screening check ............................... 9 Division 2 Requirements for application 17 Application for screening check ..................................................... 10 18 Applicant to give consent ............................................................... 10 19 Disclosures .................................................................................... 11 20 Employer verification ..................................................................... 11 Division 3 Assessment of application 21 Eligibility to work while application assessed ................................. 12 22 Assessment of application ............................................................. 13 23 Determination of application .......................................................... 14 Division 4 Clearance granted 24 Clearance granted ......................................................................... 15

National Disability Insurance Scheme (Worker Clearance) Act 2020 ii 25 Duration of clearance .................................................................... 15 26 Cancellation of clearance .............................................................. 15 27 Ongoing monitoring ....................................................................... 16 Division 5 Clearance refused or cancelled 28 Application of Division ................................................................... 16 29 Excluded persons .......................................................................... 17 Division 6 Interim bar or suspension 30 Application of Division ................................................................... 18 31 Interim bar ..................................................................................... 18 32 Suspension .................................................................................... 19 33 Internal review of interim bar or suspension .................................. 20 Division 7 Risk assessment 34 Requirement for risk assessment .................................................. 20 35 Matters to be considered when determining whether there is unacceptable risk of harm to participant ........................................ 20 36 Staff to be appropriately skilled...................................................... 21 37 Determination or intention of Screening Agency after risk assessment ................................................................................... 22 38 Internal review of intention ............................................................. 22 39 Determination of Screening Agency after intention notified ........... 23 Division 8 Miscellaneous matters 40 Withdrawing application ................................................................. 23 41 Surrender of clearance .................................................................. 24 Part 3 Review of decision 42 Internal review ............................................................................... 24 43 Review by NTCAT ......................................................................... 25 44 Confidentiality of classified information .......................................... 26 Part 4 Collection, use, storage and disclosure of information 45 Authorised purpose ....................................................................... 27 46 Information only to be used for authorised purpose....................... 27 47 Sharing and disclosing information ................................................ 27 48 Screening Agency may disclose .................................................... 28 49 Authorised person may disclose .................................................... 29 50 Power to require relevant information from other persons ............. 29 51 Criminal history information to be exchanged ................................ 29 52 Information sharing – miscellaneous ............................................. 30

National Disability Insurance Scheme (Worker Clearance) Act 2020 iii Part 5 Offences 53 Unauthorised collection or use of information ................................ 30 54 Offence to disclose certain information .......................................... 31 55 Misleading information ................................................................... 31 56 Fail to comply with request for information .................................... 33 Part 6 Administrative matters 57 Approved forms ............................................................................. 33 58 Fees .............................................................................................. 33 59 Evidentiary certificates ................................................................... 33 60 Protection from liability .................................................................. 34 61 Failure to give notice of decision ................................................... 34 62 Regulations.................................................................................... 34 ENDNOTES

NORTHERN TERRITORY OF AUSTRALIA

As in force at 26 May 2021

NATIONAL DISABILITY INSURANCE SCHEME (WORKER CLEARANCE) ACT 2020 An Act to provide for clearance for people providing support and services to participants in the National Disability Insurance Scheme and for related purposes Part 1 Preliminary matters 1 Short title This Act may be cited as the National Disability Insurance Scheme (Worker Clearance) Act 2020. 2 Commencement This Act commences on the day fixed by the Administrator by Gazette notice. 3 Objects of Act The objects of this Act are to provide for screening checks intended to protect participants from harm arising from poor quality or unsafe supports or services under the NDIS by: (a) demonstrating that the rights of participants to be safe and protected are a high community priority; and (b) reducing the potential for providers of NDIS funded supports and services to engage individuals who pose an unacceptable risk of harm to participants; and (c) prohibiting individuals who have a history of harm against participants from having more than incidental contact with participants when working for a provider of NDIS funded supports and services; and (d) deterring individuals who pose an unacceptable risk of harm to participants from seeking NDIS work.

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 2 4 Principles guiding screening checks Screening checks are to be guided by the following principles: (a) human rights – the paramount consideration is the right of participants to live their lives free from abuse, violence, neglect and exploitation, consistent with the United Nations Convention on the Rights of Persons with Disabilities; (b) duty of care – providers of NDIS funded supports and services have the primary responsibility for ensuring that they do not engage unsuitable people and that their employees are not acting or behaving in any way that puts participants at risk of harm; (c) screening is risk-based – decisions are made based on the potential risk an individual poses to participants after assessing the details of a range of relevant information; (d) proportionality – only employees whose role provides a significant opportunity for harm to participants are required to undergo screening; (e) consistency – ensuring the screening check delivers the same outcome, regardless of the jurisdiction in which the assessment was conducted; (f) privacy and appropriate use of information – information about an individual, obtained in the course of conducting screening checks, is not used for an improper purpose and is protected from inappropriate disclosure; (g) natural justice – procedural fairness and transparency, ensuring screening check processes are independent and fair; (h) efficiency and effectiveness – streamlined screening processes for employees of providers of NDIS funded supports and services who operate across jurisdictions, with a single screening process for all employees. 5 Act binds Crown This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 3 6 Application of Act This Act applies to and in relation to a person who, under Part 2 of the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Cth), is required to have an NDIS worker clearance. Note for section 6 Rule 14(c) of the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Cth) provides that a person is not required to have a clearance if the person is: (a) a secondary school student on a formal work experience placement with a registered NDIS provider; and (b) directly supervised by a worker of the provider who has a clearance. 7 Interpretation (1) In this Act: adult means a person who is 18 years of age or older. affected person, see section 42(2). Agency, see section 18A of the Interpretation Act 1978. applicant means an applicant for a screening check under this Act. approved form means a form approved under section 57. authorised person means the following: (a) the Screening Agency; (b) an organisation or body performing screening checks in a State or another Territory; (c) a person performing functions or exercising powers under this Act or a corresponding law; (d) the NDIS Commission; (e) a law enforcement agency of the Territory or another jurisdiction, including outside of Australia; (f) any other person, organisation or body prescribed by regulation. authorised purpose, see section 45. CEO means the Chief Executive Officer of the Agency administering this Act.

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 4 child means a person who is under 18 years of age. clearance means an NDIS worker clearance granted by the Screening Agency for a person to engage in NDIS work for a registered NDIS provider or an NDIS provider. clearance holder means a person who holds a clearance under this Act or a corresponding law to engage in NDIS work. corresponding law is a law of a State or another Territory that corresponds with this Act and includes a law that is prescribed by regulation as a corresponding law. criminal intelligence, see section 6 of the Serious Crime Control Act 2009. decision notice, for a decision, means a written notice setting out: (a) the decision and the reasons for it; and (b) any right the person to whom the notice is to be given has, under this Act or another Act, to apply for a review of, or to appeal, the decision. Note for definition decision notice The Northern Territory Civil and Administrative Tribunal Act 2014 sets out the requirements of a decision maker after the decision maker has made an NTCAT reviewable decision under this Act. disqualified person means a person who, as an adult, committed a disqualifying offence. disqualifying offence means an offence prescribed by regulation as a disqualifying offence. engage, in relation to a person, means in any of the following capacities: (a) as a paid or unpaid employee; (b) as a self-employed person or a contractor or subcontractor; (c) as a volunteer. excluded, in relation to a person, see section 29. interim bar, see rule 5 of the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Cth). more than incidental contact, see section 8.

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 5 NDIS Act means the National Disability Insurance Scheme Act 2013 (Cth) and includes the rules under that Act. NDIS Code of Conduct means the National Disability Insurance Scheme (Code of Conduct) Rules 2018 made under the NDIS Act. NDIS Commission means the NDIS Quality and Safeguards Commission established under the NDIS Act. NDIS provider means a provider of NDIS funded supports and services under the NDIS Act. NDIS work, see section 9. non-conviction charge means proceedings that have been commenced against a person as an adult or a child in relation to a charge, but were not finally determined because the proceedings were discontinued. Examples for definition non-conviction charge Examples for a non-conviction charge include the following proceedings: (a) a proceeding that was withdrawn; (b) a proceeding that was the subject of a nolle prosequi, a no true bill or a submission of no evidence to offer; (c) a proceeding that led to a conviction that was quashed on appeal or on which a person was acquitted or disposed of by a court otherwise than by way of conviction. NTCAT reviewable decision, see section 43(1). ongoing monitoring, see section 27. participant, see section 9 of the NDIS Act. pending charge means a current charge for a criminal offence that has not yet been determined, whether the person is being dealt with as an adult or a child. presumed disqualifying offence means an offence prescribed by regulation as a presumed disqualifying offence. presumed disqualified person, see section 10. registered NDIS provider means a provider of NDIS funded supports and services registered under the NDIS Act. reviewable decision, see section 42(1). risk assessed role, see section 11.

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 6 risk assessment, see section 34. Screening Agency means the person or Agency declared by the Minister under section 13. screening check means an NDIS worker screening check undertaken by the Screening Agency to assess whether an applicant is eligible to hold a clearance. spent conviction means a conviction which, in accordance with the Criminal Records (Spent Convictions) Act 1992, no longer forms part of a person’s criminal history. Tribunal affected person, see section 43(2). volunteer, see section 12. Note for subsection (1) The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act. (2) A term defined in the NDIS Act has the same meaning in this Act unless separately defined for this Act. 8 Meaning of more than incidental contact (1) Without limiting what may constitute more than incidental contact, the normal duties of a role are likely to require more than incidental contact with a participant if those duties include: (a) physically touching a participant; or (b) building a rapport with a participant as an integral and ordinary part of the performance of those duties; or (c) having contact with multiple participants: (i) as part of the direct delivery of a specialist disability support or service; or (ii) in a specialist disability accommodation setting. Examples for subsection (1) 1 The role of an employee involves the delivery of mobility equipment to the homes of participants. As a standard part of that role, the employee provides training and instructions to the participant about how to use the equipment safely and makes adjustments to the equipment to make it suitable for the participant. This role is likely to require more than incidental contact. This is because there is "contact" with the participant. The ordinary content of that contact (testing the participant's needs and preferences with them, talking about and responding to the nature of their disability) means that there is a level of openness and trust required on the part of the participant which would

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 7 routinely involve the employee building a level of rapport with them. 2 An accountant works for a business that supplies custom prosthetics to participants, and performs only "back office" duties. The accountant has coincidental contact with participants many work days, when moving through public areas of the business, at which time the accountant nods and says hello to the customers. The accountant's role does not involve more than incidental contact with participants. This is because the duties of the role do not require the accountant to have more than polite, functional contact with participants, or get to know them in any way. (2) In this section: contact includes physical contact, face-to-face contact, oral communication, written communication and electronic communication. 9 Meaning of NDIS work (1) NDIS work means work comprising, or in connection with, the provision of supports or services by registered NDIS providers or NDIS providers to participants. (2) In this section: work means 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 or NDIS provider to engage in that work; or (b) that the Screening Agency 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. 10 Meaning of presumed disqualified person (1) A person who, as an adult, committed a presumed disqualifying offence is a presumed disqualified person. (2) A person who is the subject of pending criminal proceedings for a disqualifying offence or a presumed disqualifying offence, allegedly committed as an adult, is also a presumed disqualified person. (3) A presumed disqualified person must be refused a clearance unless there are exceptional circumstances.

Part 1 Preliminary matters National Disability Insurance Scheme (Worker Clearance) Act 2020 8 11 Meaning of risk assessed role (1) A risk assessed role is: (a) a key personnel role of a person or an entity; or (b) a role for which the normal duties include the direct delivery of specified supports or specified services to a participant; or (c) a role for which the normal duties are likely to require more than incidental contact with a participant. (2) A registered NDIS provider must: (a) assess all roles in which the provider's employees and other personnel will engage; and (b) identify each one that is a risk assessed role. (3) An NDIS provider may: (a) assess all roles in which the provider's employees and other personnel will engage; and (b) identify each one that is a risk assessed role. (4) A role is a role with a particular registered NDIS provider or NDIS provider, whether the duties of the role are performed by an employee or other personnel. 12 Meaning of volunteer (1) A person is a volunteer if the person: (a) may be engaged by another person to do NDIS work as a volunteer; or (b) may do NDIS work as a volunteer on the person's own account. (2) A person mentioned in subsection (1)(b) is taken to be a self-employed person who engages themselves as a volunteer. 13 Screening Agency The Minister may, by Gazette notice, declare a person or an Agency to be the Screening Agency.

Part 2 NDIS worker clearance Division 1 Acceptance of applications National Disability Insurance Scheme (Worker Clearance) Act 2020 9 14 Application of Criminal Code Part IIAA of the Criminal Code applies to an offence against this Act. Note for section 14 Part IIAA of the Criminal Code states the general principles of criminal responsibility, establishes general defences, and deals with burden of proof. It also defines, or elaborates on, certain concepts commonly used in the creation of offences. Part 2 NDIS worker clearance Division 1 Acceptance of applications 15 Acceptance date for application for screening check (1) An application for a screening check may be made at any time after the commencement of this section. (2) However, an application that is made before the application acceptance date (the acceptance date) is taken to have been made on the acceptance date. (3) The CEO must, by Gazette notice, give notice of the acceptance date. 16 Persons ineligible to apply for screening check (1) A person cannot apply for a screening check if: (a) the person has had a clearance refused or cancelled under this Act or a corresponding law because the person is a disqualified person; or (b) the person has made an application for a screening check under this Act or a corresponding law and that application is pending (whether or not the application is subject to an interim bar); or (c) the person currently holds a clearance under this Act or a corresponding law, unless the application is made no more than 3 months before the expiry of the current clearance; or (d) the person is subject to a prohibition for 5 years from applying for a screening check following refusal or cancellation of a clearance. Note for subsection (1)(d) Division 5 applies in relation to a prohibition.

Part 2 NDIS worker clearance Division 2 Requirements for application National Disability Insurance Scheme (Worker Clearance) Act 2020 10 (2) An application made in contravention of subsection (1) is not a valid application and must be rejected. Division 2 Requirements for application 17 Application for screening check (1) An application for a screening check must be made to the Screening Agency in the approved form. (2) The application must: (a) include the prescribed information; and (b) include the prescribed proof of identity; and (c) be accompanied by the prescribed fee. (3) The Screening Agency may, by written notice, request from an applicant further information relevant to the determination of the application. (4) If the applicant fails to provide information requested under subsection (3) within the time prescribed by regulation, the application is taken to be discontinued. 18 Applicant to give consent (1) An applicant for a screening check must consent: (a) to the Screening Agency seeking information from law enforcement agencies, the NDIS Commission and other prescribed organisations; and (b) for those bodies to provide information relevant to the determination of the application to the Screening Agency. (2) The applicant must also consent to: (a) the result of the screening check in relation to the applicant being disclosed to the applicant's current and prospective employers, the NDIS Commission and screening authorities of other States or another Territory; and (b) relevant information (including the result of the screening check in relation to the applicant) being entered in a database for clearances for the NDIS; and

Part 2 NDIS worker clearance Division 2 Requirements for application National Disability Insurance Scheme (Worker Clearance) Act 2020 11 (c) if a clearance is granted – ongoing monitoring for the duration of the clearance of the applicant's eligibility to maintain the clearance; and (d) the sharing of information relating to the applicant between law enforcement agencies and the NDIS Commission for screening processes for working with vulnerable people. (3) The applicant may consent to a secondary use of de-identified information for research purposes or compilation of statistics for use in workforce development, service improvement and quality and safety improvements. Note for subsection (3) See IPP2 in the Information Act 2002. 19 Disclosures An application for clearance must disclose each of the following that applies to or in relation to the applicant: (a) whether the applicant has been refused a clearance or has been unsuccessful in other working with vulnerable persons screening in Australia or internationally; (b) any international criminal history; (c) information about domestic violence orders or child protection orders; (d) any workplace misconduct findings; (e) any other matter the applicant considers relevant to the application. 20 Employer verification (1) A screening check is required to be performed in relation to a person who is engaged by, or to be engaged by, a registered NDIS provider. (2) However, a screening check may also be performed in relation to a person who is: (a) engaged by, or to be engaged by, an NDIS provider; or (b) a self-employed person who engages in NDIS work.

Part 2 NDIS worker clearance Division 3 Assessment of application National Disability Insurance Scheme (Worker Clearance) Act 2020 12 (3) For an application for a screening check to be processed, a registered NDIS provider or an NDIS provider must verify that the applicant is, or will be, engaged in NDIS work. (4) If an applicant's nominated registered NDIS provider or NDIS provider does not, within the timeframe required by the Screening Agency, verify that the applicant is engaged by, or to be engaged by, the registered NDIS provider or NDIS provider in NDIS work, the application is discontinued. Division 3 Assessment of application 21 Eligibility to work while application assessed (1) Subject to subsections (2) and (3), an applicant may engage in NDIS work once the applicant has submitted an application for a screening check. (2) For an applicant to begin NDIS work while the applicant's application is pending, the following conditions must have been met: (a) the application must be complete in accordance with the requirements of this Act; (b) the application must not have been discontinued or been withdrawn; (c) the applicant must not have previously been refused a clearance under a screening check or had the applicant's clearance cancelled; (d) the applicant must not be the subject of an interim bar; (e) the applicant's employer must have agreed the applicant can work while the applicant's application is being assessed; (f) the applicant's employer must have put in place risk management strategies; (g) the applicant's employer must have arranged for the applicant to be supervised by another person who has a clearance. Note for subsection (2)(d) See section 31 in relation to an interim bar. (3) An applicant must not begin NDIS work under subsection (1) if the applicant's application for a screening check was made in a jurisdiction that does not allow an applicant to engage in NDIS work while the applicant's application is being determined.

Part 2 NDIS worker clearance Division 3 Assessment of application National Disability Insurance Scheme (Worker Clearance) Act 2020 13 22 Assessment of application (1) The Screening Agency must assess an application for a screening check received under section 17. (2) In making an assessment for an application under subsection (1), the Screening Agency must: (a) conduct a criminal history information check in relation to the applicant; and (b) assess any disciplinary and misconduct information about the applicant supplied by the NDIS Commission to the Screening Agency, including: (i) any adverse and substantiated findings of a formal investigation; and (ii) any adverse actions by the NDIS Commission; and (c) assess the outcomes of previous screening checks in relation to the applicant. Example for subsection (2)(b)(i) A reportable incident notification, complaint or breach of the NDIS Code of Conduct. Example for subsection (2)(b)(ii) Banning orders. (3) In making an assessment for an application under subsection (1), the Screening Agency may take into account the following: (a) additional information held by law enforcement agencies about the circumstances of an offence or alleged offence if available; (b) any other information relevant to determining an applicant's eligibility for a clearance, including information obtained through self-disclosure. (4) Information mentioned in subsection (3)(b) includes, but is not limited to, the following: (a) international criminal history; (b) domestic violence and child protection orders relating to the applicant;

Part 2 NDIS worker clearance Division 3 Assessment of application National Disability Insurance Scheme (Worker Clearance) Act 2020 14 (c) information about any previous working with children checks, working with vulnerable persons checks or other worker screening processes the applicant has undergone; (d) information from any reportable or notifiable conduct schemes, such as from the Ombudsman or any professional complaints bodies or associations; (e) employer or other professional records or information about the applicant, including professional references; (f) courts and tribunals records. 23 Determination of application (1) Unless an application is discontinued or is withdrawn, the Screening Agency must decide: (a) to grant clearance to an applicant; or (b) to refuse clearance to an applicant; or (c) to impose an interim bar on the applicant. (2) The Screening Agency must refuse clearance to an applicant: (a) if the applicant is a disqualified person; or (b) if, after the assessment of the application under section 22, the Screening Agency determines that the applicant poses an unacceptable risk of harm to participants. (3) The Screening Agency may refuse clearance if the Screening Agency is not satisfied that the applicant is or will be engaged to do NDIS work. Note for subsections (2) and (3) Division 5 applies if an applicant's clearance is refused. (4) The Screening Agency must: (a) notify an applicant, in writing, if the Screening Agency refuses clearance to the applicant; and (b) notify the NDIS Commission if a clearance is refused to an applicant.

Part 2 NDIS worker clearance Division 4 Clearance granted National Disability Insurance Scheme (Worker Clearance) Act 2020 15 Division 4 Clearance granted 24 Clearance granted (1) The Screening Agency may grant clearance to an applicant: (a) who has not previously been refused clearance; and (b) does not have a relevant criminal history or disciplinary or misconduct record; and (c) if no issues arise through self-disclosure or any relevant and assessable records. Note for subsection (1) A clearance may also be granted after a risk assessment of the applicant under section 37(1)(a)(i). (2) A clearance, once granted, is portable across roles and employers within the NDIS. (3) The Screening Agency must: (a) notify an applicant, in writing, if the Screening Agency grants the applicant a clearance; and (b) notify the NDIS Commission if a clearance is granted to an applicant. 25 Duration of clearance A clearance remains in force for 5 years from the date of the clearance unless earlier surrendered, suspended or cancelled. 26 Cancellation of clearance (1) The Screening Agency may, without proceeding to a risk assessment, cancel a person's clearance if: (a) the clearance was granted as a result of an invalid application; or (b) the clearance was granted by mistake and should not have been granted; or (c) the Screening Agency is no longer satisfied that the person is or will be engaged to do NDIS work.

Part 2 NDIS worker clearance Division 5 Clearance refused or cancelled National Disability Insurance Scheme (Worker Clearance) Act 2020 16 (2) The Screening Agency must: (a) notify a person, in writing, if the Screening Agency cancels the person's clearance; and (b) notify the NDIS Commission if a person's clearance is cancelled. Note for section 26 Division 5 applies if a person's clearance has been cancelled. 27 Ongoing monitoring (1) A clearance holder is subject to ongoing monitoring by the Screening Agency of the following: (a) relevant criminal charges brought against the clearance holder; (b) NDIS Commission records; (c) other information the Screening Agency considers relevant. (2) The Screening Agency may, as a result of monitoring as mentioned in subsection (1): (a) suspend a person's clearance; or (b) cancel a person's clearance. (3) The Screening Agency must cancel a person's clearance if the person is a disqualified person. (4) The Screening Agency must notify the NDIS Commission if a person's clearance is suspended or cancelled. Notes for section 27 1 Division 5 applies if a person's clearance is cancelled. 2 Division 6 applies if a person's clearance is suspended. Division 5 Clearance refused or cancelled 28 Application of Division This Division applies if the Screening Agency, in relation to a person: (a) decides to refuse clearance to an applicant under section 23(1)(b); or

Part 2 NDIS worker clearance Division 5 Clearance refused or cancelled National Disability Insurance Scheme (Worker Clearance) Act 2020 17 (b) decides to cancel the person's clearance under section 26(1); or (c) decides to cancel the person's clearance under section 27(2)(b); or (d) decides to refuse clearance to an applicant after conducting a risk assessment under section 39(1)(a); or (e) decides to cancel the person's clearance after conducting a risk assessment under section 39(1)(b); or (f) is advised that the person has had clearance refused or cancelled under a corresponding law. 29 Excluded persons (1) A person mentioned in section 28 is excluded from NDIS work. (2) Excluded persons are prohibited from engaging in NDIS work and delivering non-specified supports and services entailing more than incidental contact with a participant, as a registered NDIS provider or an NDIS provider or as a person employed by a registered NDIS provider or an NDIS provider. Note for subsection (2) Excluded persons are also required under the NDIS Code of Conduct to disclose the outcome of the person's screening check to any person or provider to whom they are providing supports or services under the NDIS. (3) An excluded person (except a person mentioned in section 26(1)(c)) may not reapply for a screening check for a period of 5 years after the date of the decision. Note for subsection (3) If the reason the person's clearance was refused or cancelled is because the person is a disqualified person, the person will not be subject to the prohibition. A disqualified person is permanently disqualified from reapplying for a clearance under section 16(1)(a). (4) The effect of the prohibition is that the person is prohibited for 5 years from the date of the refusal or cancellation from reapplying for a screening check, unless: (a) there has been a relevant change of circumstances in relation to the reason for the prohibition; or (b) there are other exceptional circumstances that the Screening Agency considers would allow for reconsideration of the prohibition.

Part 2 NDIS worker clearance Division 6 Interim bar or suspension National Disability Insurance Scheme (Worker Clearance) Act 2020 18 (5) In this section: relevant change of circumstances means one or more of the following: (a) proceedings for an offence on which the refusal or cancellation was based are withdrawn or dealt with without the person being found guilty of the offence; (b) a finding of guilt for an offence on which the refusal or cancellation was based is quashed or set aside; (c) if the refusal or cancellation was based on a risk assessment – a finding that was the subject of the risk assessment is quashed or set aside or otherwise expressly or impliedly ceases to have effect; (d) any other change of circumstances that the Screening Agency considers should result in the person being permitted to make an application. Division 6 Interim bar or suspension 30 Application of Division This Division applies if the Screening Agency: (a) imposes an interim bar on an applicant under section 23(1)(c); or (b) suspends the clearance of a person under section 27(2)(a). 31 Interim bar (1) An interim bar prevents an applicant from engaging in NDIS work while the applicant's application is pending. (2) The Screening Agency must impose an interim bar in relation to an applicant: (a) if the applicant is subject to a pending charge for a disqualifying offence – until the charge is resolved or the Screening Agency determines the application; or (b) if the applicant is subject to a banning order by the NDIS Commission – until the NDIS Commission varies or revokes the banning order, or the Screening Agency determines the application; or

Part 2 NDIS worker clearance Division 6 Interim bar or suspension National Disability Insurance Scheme (Worker Clearance) Act 2020 19 (c) if the Screening Agency is satisfied there is a reasonable likelihood that a risk assessment of the applicant will determine that the applicant poses an unacceptable risk of harm to participants. (3) An interim bar remains in place until the Screening Agency determines the application relating to the applicant on whom the interim bar is imposed. (4) If the Screening Agency decides to impose an interim bar on an applicant, the Screening Agency must give the applicant a decision notice for that decision. (5) The Screening Agency must: (a) notify an applicant, in writing, when an interim bar relating to the applicant ceases to be in effect; and (b) notify the NDIS Commission if an interim bar is imposed on an applicant, and also if an interim bar ceases to be in effect. 32 Suspension (1) A suspension of a person's clearance prevents the person from engaging in NDIS work until the Screening Agency decides whether to lift the suspension or cancel the clearance. (2) The Screening Agency must suspend a clearance in relation to a person: (a) if the person is subject to a pending charge for a disqualifying offence – until the charge is resolved or the Screening Agency completes a risk assessment; or (b) if the person is subject to a banning order by the NDIS Commission – until the NDIS Commission varies or revokes the banning order, or the Screening Agency completes a risk assessment; or (c) if the Screening Agency is satisfied that there is a reasonable likelihood that a risk assessment of the person will determine that the person poses an unacceptable risk of harm to participants. (3) If the Screening Agency decides to suspend a person's clearance, the Screening Agency must give the person a decision notice for that decision.

Part 2 NDIS worker clearance Division 7 Risk assessment National Disability Insurance Scheme (Worker Clearance) Act 2020 20 (4) The Screening Agency must: (a) notify a person, in writing, when a suspension of the person's clearance is lifted; and (b) notify the NDIS Commission if a person's clearance is suspended, and also if the suspension is lifted. 33 Internal review of interim bar or suspension (1) Subject to subsection (3), the following decisions are reviewable: (a) a decision to impose an interim bar on an applicant; (b) a decision to suspend a person's clearance. (2) The applicant or the person may seek an internal review of the decision if the interim bar or suspension has been imposed or in place for 6 months or longer. (3) A person whose clearance has been suspended is not entitled to apply for a review if the person is a disqualified person, except on the grounds that the person is a disqualified person only because of mistaken identity. Note for section 33 If a person is unsuccessful on an internal review, the person may seek review of the decision by NTCAT – see section 43. Division 7 Risk assessment 34 Requirement for risk assessment The Screening Agency may conduct a risk assessment of a person if: (a) the person is an applicant on whom an interim bar has been imposed under section 23(1)(c); or (b) the person's clearance is suspended under section 27(2)(a). 35 Matters to be considered when determining whether there is unacceptable risk of harm to participant (1) In determining if a person poses an unacceptable risk of harm to a participant, the Screening Agency does not need to be satisfied that it is likely the person will cause harm to a participant in the future.

Part 2 NDIS worker clearance Division 7 Risk assessment National Disability Insurance Scheme (Worker Clearance) Act 2020 21 (2) In determining whether a person poses an unacceptable risk of harm to a participant, the Screening Agency must consider the following factors: (a) the nature, gravity and circumstances of any offence committed, or alleged to have been committed, or misconduct by the person or other relevant information and how this is relevant to disability-related work; (b) the length of time that has passed since the event occurred; (c) the vulnerability of the victim at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; (d) the person's criminal, misconduct or disciplinary or other relevant history, including whether there is a pattern of concerning behaviour; (e) the person's conduct since the event; (f) all other relevant circumstances in respect of the person's offending, misconduct and disciplinary or other relevant history and the impact on the person's eligibility to be engaged in NDIS work. (3) To determine the relevant weight given to information in a risk assessment, the Screening Agency must take into account the context and characteristics of the information, including reliability, how it was obtained and the nature, extent and outcome of investigations. (4) The rights of a person to work with a participant are not relevant in determining whether or not a person poses an unacceptable risk of harm. (5) If a person has multiple criminal offences of varying severity, the Screening Agency must consider disqualifying offences and presumed disqualifying offences before considering other offences. 36 Staff to be appropriately skilled (1) A risk assessment of a person must only be undertaken by appropriately skilled staff. (2) In this section: appropriately skilled includes having appropriate qualifications, experience or standing to make the assessment, as determined by the Screening Agency.

Part 2 NDIS worker clearance Division 7 Risk assessment National Disability Insurance Scheme (Worker Clearance) Act 2020 22 37 Determination or intention of Screening Agency after risk assessment (1) At the completion of a risk assessment the Screening Agency may: (a) for an applicant to whom an interim bar has been imposed: (i) grant the clearance; or (ii) if the risk assessment indicates that the applicant poses an unacceptable risk of harm to a participant – indicate an intention to refuse the clearance; or (b) for a person subject to a suspension: (i) lift the suspension; or (ii) if the risk assessment indicates that the person poses an unacceptable risk of harm to a participant – indicate an intention to cancel the clearance. (2) The Screening Agency must notify the person, in writing, of the Screening Agency's determination or intention under subsection (1). (3) The notice must give reasons for the intention to refuse or cancel the clearance and advise the person of the process for requesting an internal review of the proposed decision. 38 Internal review of intention (1) Subject to subsection (3), an intention to refuse clearance to an applicant or cancel a person's clearance is reviewable. (2) The applicant or the person may seek an internal review of the intention within the time specified in the notice given under section 37(2). (3) An applicant whose clearance has been refused or a person whose clearance has been suspended is not entitled to apply for a review if the applicant or the person is a disqualified person, except on the grounds that the applicant or the person is a disqualified person only because of mistaken identity. Note for section 38 If a person is unsuccessful on an internal review, the person may seek review of the decision by NTCAT – see section 43.

Part 2 NDIS worker clearance Division 8 Miscellaneous matters National Disability Insurance Scheme (Worker Clearance) Act 2020 23 39 Determination of Screening Agency after intention notified (1) If no application for internal review is received within the specified time in the notice given under section 37(2), the Screening Agency must: (a) if the Screening Agency is proceeding under section 37(1)(a)(ii) – refuse the clearance; or (b) if the Screening Agency is proceeding under section 37(1)(b)(ii) – cancel the clearance. (2) The Screening Agency must notify the person, in writing, of the Screening Agency's decision under subsection (1). (3) The Screening Agency must notify the NDIS Commission of: (a) the outcome of an application for a screening check; or (b) the cancellation of a person's clearance. Note for section 39 Division 5 applies if an applicant is refused clearance or a person's clearance has been cancelled. Division 8 Miscellaneous matters 40 Withdrawing application (1) An applicant may withdraw the applicant's application for a screening check at any time before the Screening Agency has determined the application, unless an interim bar has been imposed on the applicant. (2) An application cannot be withdrawn if: (a) the Screening Agency refused clearance as a result of the applicant's most recent previous application for a screening check; or (b) the clearance most recently held by the applicant was cancelled, other than: (i) at the request of the applicant; or (ii) because the applicant was no longer doing NDIS work. (3) A request to withdraw an application must be in the approved form. (4) The Screening Agency must consent to the withdrawal.

Part 3 Review of decision National Disability Insurance Scheme (Worker Clearance) Act 2020 24 (5) The Screening Agency must: (a) notify an applicant, in writing, if the Screening Agency consents to the withdrawal; and (b) notify the NDIS Commission if an applicant's application is withdrawn. 41 Surrender of clearance (1) A clearance holder may, at any time, request cancellation of the clearance by written notice to the Screening Agency. (2) The Screening Agency must, as soon as practicable after receiving the request, cancel the clearance. (3) However, the Screening Agency must not accede to the request for cancellation if: (a) the clearance (including a clearance held under a corresponding law) is suspended; or (b) the Screening Agency is undertaking, or proposing to undertake, a risk assessment of the clearance holder. (4) The Screening Agency must: (a) notify a person, in writing, if the Screening Agency cancels the person's clearance; and (b) notify the NDIS Commission if a person's clearance is cancelled. Part 3 Review of decision 42 Internal review (1) A reviewable decision is a decision made by the Screening Agency that is designated as reviewable by this Act. Note for subsection (1) The following decisions are designated as reviewable: (a) a decision to impose an interim bar on an applicant or suspend a person's clearance after 6 months has elapsed under section 33; (b) an intention to refuse clearance to an applicant or cancel a person's clearance under section 38.

Part 3 Review of decision National Disability Insurance Scheme (Worker Clearance) Act 2020 25 (2) An affected person, for a reviewable decision, is the applicant or the person whose clearance has been suspended or whose clearance is intended to be cancelled. (3) An affected person for a reviewable decision may apply to the CEO for an internal review of the decision. (4) The CEO may appoint a public sector employee (the internal reviewer) to conduct an internal review of a reviewable decision. (5) The CEO must be satisfied that the employee has the qualifications, experience and personal qualities necessary to review the reviewable decision. (6) In reviewing the decision, the internal reviewer must: (a) follow the procedures (if any) for review prescribed by regulation; and (b) comply with the rules of natural justice. (7) An internal reviewer who reviews a decision may: (a) affirm the decision; or (b) vary the decision; or (c) set the decision aside and substitute a new decision. (8) The decision of an internal reviewer in relation to the review of an intention to refuse a clearance under section 37(1)(a)(ii) or an intention to cancel a clearance under section 37(1)(b)(ii) takes effect as a final decision for the application or clearance. Note for subsection (8) If a person is unsuccessful on an internal review, the person may seek review of the decision by NTCAT – see section 43. 43 Review by NTCAT (1) NTCAT has jurisdiction to review the following decisions (an NTCAT reviewable decision): (a) a decision of the internal reviewer under section 42 in relation to an interim bar or suspension; (b) a decision of the internal reviewer under section 42 in relation to an intention to refuse clearance to an applicant or cancel a person's clearance.

Part 3 Review of decision National Disability Insurance Scheme (Worker Clearance) Act 2020 26 (2) A Tribunal affected person for the decision is the applicant or the person whose clearance has been suspended or cancelled. (3) A Tribunal affected person for an NTCAT reviewable decision may apply to NTCAT for a review of the decision. (4) The right to apply for review of the decision mentioned in subsection (1) arises only: (a) after the Tribunal affected person has requested an internal review of the decision; and (b) if the result of that review remained adverse to the Tribunal affected person. Note for section 43 The Northern Territory Civil and Administrative Tribunal Act 2014 sets out the procedure for applying to NTCAT for review and other relevant matters in relation to reviews. 44 Confidentiality of classified information (1) In exercising its jurisdiction to review an NTCAT reviewable decision under this Part, NTCAT must take steps to maintain the confidentiality of classified information provided to it by the Commissioner of Police. (2) If NTCAT considers the classified information is criminal intelligence, the steps taken under subsection (1) include steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings, their representatives and the public. (3) If NTCAT considers classified information is not criminal intelligence, NTCAT must allow the Commissioner of Police to withdraw the classified information from consideration. (4) This section applies to an appeal to the Supreme Court under section 141 of the Northern Territory Civil and Administrative Tribunal Act 2014 brought by a party in relation to a decision of NTCAT made in the exercise of its review jurisdiction under this Part. (5) In this section: classified information means information the Commissioner of Police classifies as criminal intelligence under the Serious Crime Control Act 2009.

Part 4 Collection, use, storage and disclosure of information National Disability Insurance Scheme (Worker Clearance) Act 2020 27 Part 4 Collection, use, storage and disclosure of information 45 Authorised purpose (1) An authorised purpose is any purpose connected with assessing a person's suitability to work with participants in accordance with this Act or any other law, including the following: (a) verifying the person's identity; (b) determining whether the person poses an unacceptable risk of harm to a participant; (c) determining whether a risk assessment is required in relation to the person; (d) ongoing monitoring of a clearance holder; (e) conducting a review of a decision made under this Act; (f) for research or statistical purposes; (g) for any other purpose prescribed by regulation. (2) In addition to the matters specified in subsection (1), the following are also authorised purposes: (a) providing the information to an organisation or body performing screening checks in a State or another Territory; (b) sharing relevant information for entry in a database for clearances for the NDIS; (c) sharing information with an authorised person on request, or when the Screening Agency considers it appropriate. 46 Information only to be used for authorised purpose Information obtained under this Act must only be used by the Screening Agency for an authorised purpose. 47 Sharing and disclosing information (1) The Screening Agency must ensure that information made available to other persons, bodies or organisations is: (a) appropriate and relevant for the purposes of conducting a screening check; and (b) made available only to authorised persons; and

Part 4 Collection, use, storage and disclosure of information National Disability Insurance Scheme (Worker Clearance) Act 2020 28 (c) collected through lawful and fair means; and (d) accurate, up-to-date, complete and not misleading; and (e) made available in a timely manner. (2) The Screening Agency must: (a) take the steps that are reasonable in the circumstances to protect personal information from misuse, interference, loss, unauthorised access, modification and disclosure; and (b) put in place formal information sharing processes and mechanisms that are reliable, robust and transparent. 48 Screening Agency may disclose (1) The Screening Agency is authorised to: (a) inform any authorised persons of the outcome of an applicant's screening check; and (b) inform any authorised persons if an interim bar has been imposed on an applicant or a person has had the person's clearance suspended or cancelled. (2) The Screening Agency is also authorised to provide to an authorised person relevant information about an applicant or a clearance holder: (a) for the purpose of: (i) verifying the identity of the applicant or clearance holder or verifying the applicant's or clearance holder's clearance status; or (ii) conducting a risk assessment in relation to the applicant or clearance holder; or (b) for any other reason prescribed by regulation. (3) The Screening Agency may also provide to an authorised person information about relevant offences that has been obtained for the purposes of assessing a person's suitability to work with a participant.

Part 4 Collection, use, storage and disclosure of information National Disability Insurance Scheme (Worker Clearance) Act 2020 29 49 Authorised person may disclose An authorised person may disclose to any other authorised person any information obtained in accordance with this Act if: (a) there are reasonable grounds to suspect that there is a risk of significant harm to a person with disability, a child or vulnerable person; and (b) the disclosure is necessary to prevent that harm. 50 Power to require relevant information from other persons (1) The Screening Agency may, by written notice, require a person to provide information that is relevant to assessing the risk of harm posed by an applicant or a clearance holder. (2) The person to whom the notice is given is authorised to provide the information. 51 Criminal history information to be exchanged (1) The Screening Agency may, on request, provide criminal history information relating to a person to the NDIS Commission or screening authority of a State or another Territory, and may request criminal history information relating to an applicant or a clearance holder from any of the following: (a) a law enforcement agency of the Territory; (b) the screening authority of a State or another Territory; (c) the NDIS Commission; (d) the Australian Criminal Intelligence Commission; (e) a law enforcement agency of the Commonwealth or a State or another Territory. (2) Criminal history information includes the following in relation to a person: (a) the person's criminal history; (b) spent convictions; (c) pending charges; (d) non-conviction charges;

Part 5 Offences National Disability Insurance Scheme (Worker Clearance) Act 2020 30 (e) if available, information held by law enforcement agencies about the circumstances of an offence or alleged offence, such as the following: (i) when the offence was committed, or alleged to have been committed; (ii) the age of the offender or alleged offender; (iii) the age of the victim; (iv) whether the offence or alleged offence involved or was intended to involve a vulnerable person, including a person with disability; (v) the relationship, if any, between the offender or alleged offender and any vulnerable person or person with disability involved in the offence; (vi) the circumstances and nature of the behaviours constituting or involved with the offence or alleged offence; (vii) other factors relevant to a decision about whether a person poses a risk of harm to people with disability. 52 Information sharing – miscellaneous Notice of any decision under this Act must not disclose the existence or content of any criminal intelligence disclosed to the Screening Agency. Part 5 Offences 53 Unauthorised collection or use of information (1) A person commits an offence if the person: (a) intentionally collects or uses information under this Act; and (b) the collection or use is not authorised by this Act or another law in force in the Territory. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) Strict liability applies to subsection (1)(b).

Part 5 Offences National Disability Insurance Scheme (Worker Clearance) Act 2020 31 54 Offence to disclose certain information (1) A person commits an offence if: (a) the person obtains information in the course of performing a function connected with the administration of this Act or exercising a power under this Act; and (b) the information is confidential and the person is reckless in relation to that circumstance; and (c) the person intentionally engages in conduct; and (d) the conduct results in the disclosure of the information and the disclosure is not: (i) for a purpose connected with the administration of this Act, including a legal proceeding arising out of the operation of this Act; or (ii) to a person who is otherwise entitled to the information; and (e) the person is reckless in relation to the result and circumstance referred to in paragraph (d). Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) Strict liability applies to subsection (1)(a). (3) If the information referred to in subsection (1) relates to a person, it is a defence to a charge for an offence against that subsection if the person has consented to the disclosure of the information. Note for subsection (3) In addition to the circumstances mentioned in this section, a person who discloses information mentioned in this section will not be criminally responsible for an offence if the disclosure is justified or excused by or under a law (see section 43BE of the Criminal Code). 55 Misleading information (1) A person commits an offence if: (a) the person intentionally gives information to another person; and (b) the other person is an authorised person; and

Part 5 Offences National Disability Insurance Scheme (Worker Clearance) Act 2020 32 (c) the information is misleading and the person has knowledge of that circumstance; and (d) the authorised person is acting in an official capacity and the person has knowledge of that circumstance. Maximum penalty: 200 penalty units or imprisonment for 2 years. (2) A person commits an offence if: (a) the person intentionally gives a document to another person; and (b) the other person is an authorised person; and (c) the document contains misleading information and the person has knowledge of that circumstance; and (d) the authorised person is acting in an official capacity and the person has knowledge of that circumstance. Maximum penalty: 200 penalty units or imprisonment for 2 years. (3) Strict liability applies to subsections (1)(b) and (2)(b). (4) It is a defence to a prosecution for an offence against subsection (2) if the person, when giving the document: (a) draws the misleading aspect of the document to the authorised person's attention; and (b) to the extent to which the person can reasonably do so – gives the authorised person the information necessary to remedy the misleading aspect of the document. (5) In this section: acting in an official capacity, in relation to an authorised person, means the person is exercising powers or performing functions under, or otherwise related to the administration of, this Act. misleading information means information that is misleading in a material particular or because of the omission of a material particular.

Part 6 Administrative matters National Disability Insurance Scheme (Worker Clearance) Act 2020 33 56 Fail to comply with request for information (1) A person who is given a notice under section 50 must comply with the notice. Maximum penalty: 50 penalty units. (2) An offence against subsection (1) is an offence of strict liability. Part 6 Administrative matters 57 Approved forms The CEO may approve forms for this Act. 58 Fees (1) The regulations may prescribe fees payable under this Act. (2) The Screening Agency may do any of the following if the Screening Agency considers it appropriate: (a) exempt payment of a fee; (b) waive (wholly or partly) a fee; (c) refund (wholly or partly) a fee. 59 Evidentiary certificates (1) The Screening Agency may issue a certificate that states that, on a specified date or during a specified period: (a) a specified person was or was not the holder of a clearance; or (b) a specified person had or had not made an application for a clearance; or (c) a clearance held by a specified person was or was not suspended; or (d) a specified person was or was not subject to an interim bar; or (e) a clearance held by a specified person was cancelled. (2) A certificate under this section is admissible in legal proceedings as evidence of the matters stated in the certificate.

Part 6 Administrative matters National Disability Insurance Scheme (Worker Clearance) Act 2020 34 60 Protection from liability (1) A person is not civilly or criminally liable for an act done or omitted to be done by the person in good faith in the exercise of a power or performance of a function under this Act. (2) Subsection (1) does not affect any liability the Territory would, apart from that subsection, have for the act or omission. (3) In this section: exercise, of a power, includes the purported exercise of the power. performance, of a function, includes the purported performance of the function. 61 Failure to give notice of decision Failure to give notice of a decision under this Act does not affect the validity of the decision. 62 Regulations The Administrator may make regulations under this Act. Note for section 62 See section 65 of the Interpretation Act 1978.

ENDNOTES National Disability Insurance Scheme (Worker Clearance) Act 2020 35 ENDNOTES 1 KEY Key to abbreviations amd = amended od = order app = appendix om = omitted bl = by-law pt = Part ch = Chapter r = regulation/rule cl = clause rem = remainder div = Division renum = renumbered exp = expires/expired rep = repealed f = forms s = section Gaz = Gazette sch = Schedule hdg = heading sdiv = Subdivision ins = inserted SL = Subordinate Legislation lt = long title sub = substituted nc = not commenced 2 LIST OF LEGISLATION National Disability Insurance Scheme (Worker Clearance) Act 2020 (Act No. 7, 2020) Assent date 9 March 2020 Commenced 1 July 2020 (Gaz G17, 29 April 2020, p 2) National Disability Insurance Scheme (Worker Clearance) Amendment Act 2021 (Act No. 16, 2021) Assent date 25 May 2021 Commenced 26 May 2021 (s 2) 3 LIST OF AMENDMENTS s 7 amd No. 16, 2021, s 4 s 13 amd No. 16, 2021, s 5 pt 7 hdg exp No. 7, 2020, s 65 ss 63 – 65 exp No. 7, 2020, s 65

1 National Disability Insurance Scheme (Worker Clearance) Act 2020

The Act defines a compact set of legal concepts that determine who must participate, what is screened, how risk is assessed, and how information is handled.

NDIS work (s 9). NDIS work is defined broadly as work comprising, or in connection with, provision of supports or services by registered NDIS providers or NDIS providers to participants. The definition is intentionally functional, and also includes work that the Screening Agency considers necessary or convenient for a person to hold a clearance in order to be engaged in that work (s 9(2)(b)). Work is described to include paid and unpaid employees, contractors and volunteers (s 7, definition engage).
Clearance and clearance holder (s 7). A clearance is an NDIS worker clearance granted by the Screening Agency; a clearance holder is a person who holds a clearance under this Act or a corresponding law. The Act makes clear that a clearance is portable across roles and employers within the NDIS (s 24(2)) and has a statutory five year duration unless earlier surrendered, suspended or cancelled (s 25).
More than incidental contact (s 8). The Act sets out a functional test for “more than incidental contact” with participants. Normal duties likely require more than incidental contact if they include physical touching, building rapport as an ordinary part of duties, or having contact with multiple participants as part of direct delivery of specialist supports or in SDA settings (s 8(1)). The Act gives two examples (equipment delivery and a back-office accountant) to illustrate borderline distinctions.
Risk assessed role (s 11). A role is “risk assessed” if it is key personnel, or requires direct delivery of specified supports/services to a participant, or normally requires more than incidental contact (s 11(1)). Registered NDIS providers must assess all roles and identify risk assessed roles (s 11(2)). Other NDIS providers may do so voluntarily (s 11(3)).
Presumed disqualified person and disqualified person (ss 7, 10). A presumed disqualified person is someone who as an adult committed a presumed disqualifying offence as prescribed by regulation, or is subject to pending criminal proceedings for such an offence (s 10). A presumed disqualified person must be refused a clearance unless there are exceptional circumstances (s 10(3)). A disqualified person is defined as a person who as an adult committed a disqualifying offence (s 7) and where a person is a disqualified person, the Screening Agency must refuse clearance and must cancel a clearance if the person becomes a disqualified person (ss 23(2)(a), 27(3)).
Interim bar and suspension (Div 6, ss 30-33). Interim bars prevent applicants from engaging in NDIS work while the application is pending (s 31(1)), and must be imposed in specified circumstances including pending charges, banning orders, or reasonable likelihood that a risk assessment will result in an unacceptable risk finding (s 31(2)). Suspensions prevent a clearance holder from engaging in NDIS work until the Agency decides whether to lift the suspension or cancel the clearance (s 32(1)-(2)).
Risk assessment (ss 34-39). The Act sets out the factors the Screening Agency must consider when determining whether a person poses an unacceptable risk, including the nature, gravity and circumstances of offences or alleged offences, time elapsed, vulnerability of the victim, relationship to the victim, the person’s subsequent conduct, pattern of behaviour, and other relevant circumstances (s 35(2)). The Agency need not be satisfied that it is likely the person will cause harm; the threshold for concluding unacceptable risk is lower than a prediction of likelihood (s 35(1)).
Information and authorised persons (Part 4). The Act establishes authorised purposes (ss 45-46), rules for use and sharing (ss 47-52), and gives the Screening Agency and other authorised persons powers to request information (s 50) and to exchange criminal history information with relevant domestic and interstate agencies (s 51).
Offences and penalties (Part 5). The Act criminalises unauthorised collection or use of information (s 53), wrongful disclosure of confidential information (s 54), giving misleading information or documents to authorised persons (s 55), and failure to comply with requests for information (s 56). Penalties range from monetary penalty units to imprisonment for up to two years on the more serious counts (ss 53-55).

Each of these concepts is interlocked: who must obtain a clearance depends on definitions of NDIS work and risk assessed role; whether a person may work while applications are pending depends on interim bars and employer obligations; and portability, monitoring and information sharing determine how status is communicated across jurisdictions and employers. Those interlocks determine compliance obligations for providers, applicants, the Screening Agency and the NDIS Commission.

The Act affects multiple categories of persons and bodies, and assigns distinct roles and obligations to them.

Applicants and prospective workers. Any person who, under the NDIS Practice Standards - Worker Screening Rules 2018 (Cth) Pt 2, is required to have a clearance is within scope (s 6). This will include employees, contractors, self-employed persons who do NDIS work, and volunteers (s 7 definitions; s 12). Applicants are required to apply in the approved form, provide prescribed information and proof of identity, pay the prescribed fee and give statutory consents (s 17; s 18). Applicants who are presumed disqualified must be refused unless exceptional circumstances are shown (s 10). Applicants cannot apply if they currently hold a clearance unless within 3 months of expiry, are subject to a 5 year prohibition following prior refusal or cancellation, or have previous refusal or cancellation because they are disqualified (s 16).
Clearance holders. Persons granted clearances have statutory status that is portable across NDIS employers and roles (s 24(2)). Clearance holders are subject to ongoing monitoring of criminal charges, NDIS Commission records and other information by the Screening Agency and may have suspensions or cancellations as a result (s 27). A clearance lasts five years by default (s 25).
Registered NDIS providers. Registered NDIS providers are given specific duties: they must assess all roles and identify risk assessed roles (s 11(2)); they must verify to the Screening Agency that an applicant is or will be engaged in NDIS work for an application to be processed (s 20(3)); and they must agree and implement supervision and risk management strategies if they allow an applicant to do NDIS work while the application is pending (s 21(2)(e)-(g)). The Act also authorises providers to seek screening checks in respect of persons engaged by them (s 20(1)).
NDIS providers who are not registered. The Act’s coverage extends to persons engaged by NDIS providers and self-employed persons who engage in NDIS work (s 20(2)). However, the statutory duty to assess roles is framed as mandatory for registered providers and permissive for other NDIS providers (s 11(2)-(3)).
Screening Agency and CEO. The Minister declares the Screening Agency by Gazette notice (s 13). The CEO sets the application acceptance date by Gazette notice (s 15) and may appoint internal reviewers to examine reviewable decisions (ss 15, 42(3)-(5)). The Screening Agency performs the administrative, assessment, monitoring and information-sharing functions throughout the Act (many sections including ss 17, 21-27, 34-39, 45-52).
NDIS Commission. The NDIS Commission is both a source of disciplinary information for the Screening Agency and a recipient of notifications about the outcomes of clearance applications, interim bars, suspensions and cancellations (see ss 22(2)(b), 23(1)(4), 24(3), 26(2), 27(4), 31(5), 32(3), 39(3)). The NDIS Commission’s prior banning orders are a trigger for mandatory interim bars and suspensions under ss 31(2)(b) and 32(2)(b).
Law enforcement, other screening authorities and agencies. The Screening Agency may request criminal history and intelligence from law enforcement and Australian criminal information bodies (s 51). The Act contemplates exchange and disclosure with screening authorities in States and Territories, the Australian Criminal Intelligence Commission, law enforcement agencies of Commonwealth and States, and other bodies prescribed by regulation (ss 7 definition authorised person, 48, 51). Requests for relevant information can be made under s 50.
Public sector and Tribunal. An affected person may seek internal review by a CEO-appointed public sector employee (s 42(3)-(6)). NTCAT has jurisdiction to review internal reviewer decisions for specified decision categories (s 43(1)). NTCAT is required to take steps to protect classified criminal intelligence in review proceedings (s 44).

Who pays. Applicants must pay prescribed fees unless exempted or waived by the Screening Agency (s 17(2)(c); s 58). Employers bear costs of verification (s 20(3)), supervision and implementation of risk management strategies if they permit a person to work pending clearance (s 21(2)(e)-(g)). The public administrative costs of operating the Screening Agency, conducting risk assessments and running internal reviews fall to the territory administering agency, with the CEO and Minister having statutory roles (ss 13, 15, 42(3)-(5)). The Act permits the Screening Agency to exempt, waive or refund fees (s 58(2)).

The Act allocates discrete duties to applicants, providers and the Screening Agency, and provides specific rights including review rights.

Duties on applicants

Complete application in approved form, include prescribed information, proof of identity and accompanying fee (s 17(1)-(2)).
Provide statutory consent for information collection and disclosure to law enforcement, the NDIS Commission, screening authorities, and database entry (s 18(1)-(2)).
Disclose specified matters when applying, including prior refusals, international criminal history, domestic violence or child protection orders and workplace misconduct findings (s 19).
Comply with requests for further information from the Screening Agency; failure to supply within prescribed regulatory timeframes causes the application to be taken as discontinued (s 17(3)-(4)).
Where an applicant begins NDIS work while application is pending, they must not be subject to prior refusal/cancellation, interim bar, and must be supervised and have employer risk management arrangements in place (s 21(2)(c)-(g).

Duties on registered NDIS providers and employers

Assess all roles and identify risk assessed roles (s 11(2)). Other providers may do so (s 11(3)).
Verify to the Screening Agency that an applicant is or will be engaged to do NDIS work, within the timeframe required; failure to verify causes discontinuance (s 20(3)-(4)).
Agree to permit applicants to work pending clearance only when conditions are met including supervision and risk management (s 21(2)(e)-(g)).
Notify participants of screening outcomes where required by the NDIS Code of Conduct (s 29(2) note).

Duties on the Screening Agency

Assess screening check applications, conducting criminal history checks and assessing NDIS Commission disciplinary information and prior screening outcomes (ss 22(1)-(2)).
Consider additional information from law enforcement and self-disclosure when appropriate (s 22(3)).
Decide to grant, refuse, or impose an interim bar, and notify applicants and the NDIS Commission of decisions (s 23(1), (4)).
Grant clearances and enter them in a database; grant portability across NDIS employers (s 24(1)-(2)).
Monitor clearance holders for relevant criminal charges and NDIS Commission records and act (s 27).
Conduct risk assessments where interim bars or suspensions trigger them (ss 34-39).
Ensure information shared is appropriate, relevant and protected; put in place formal information sharing processes (s 47).

Rights and review mechanisms

Applicants and persons whose clearances are suspended or intended to be cancelled have rights to internal review by the CEO-appointed internal reviewer for designated reviewable decisions (s 42(1)-(7)). Internal review can affirm, vary, or substitute decisions (s 42(7)).
If internal review remains adverse, the affected person may apply to the Northern Territory Civil and Administrative Tribunal (NTCAT) for review of internal reviewer decisions in specified categories (s 43).
Confidentiality protections for classified criminal intelligence in NTCAT review processes are established (s 44).
Applicants may withdraw an application before determination unless an interim bar has been imposed or certain other restrictions exist (s 40(1)-(4)).
Clearance holders may request cancellation (s 41(1)-(2)) but surrender cannot be accepted while a suspension or risk assessment is underway (s 41(3)).

Administrative notices and notifications

The Act requires written decision notices that set out decision and reasons and any review right (s 7 definition decision notice; the note references the NTCAT Act for decision maker requirements).
The Screening Agency must notify the NDIS Commission of grants, refusals, suspensions and cancellations (see ss 23(4), 24(3), 26(2), 27(4), 31(5), 32(4)-(4)(b), 39(3)).

Specific constraints and absolute bars

Presumed disqualified persons must be refused a clearance except in exceptional circumstances (s 10(3)).
A person who is a disqualified person is permanently disqualified from reapplying under s 16(1)(a) and a clearance must be cancelled if the person is a disqualified person (ss 23(2)(a), 27(3)).
Excluded persons are prohibited from engaging in NDIS work and delivering non-specified supports and services entailing more than incidental contact; reapplication is prohibited for five years subject to limited exceptions (s 29(1)-(5)).

Criminal and administrative sanctions

The Act attaches criminal penalties to unauthorised collection or use of information, certain wrongful disclosures, misleading information, and makes failure to obey information requests a strict liability offence with penalty units (Part 5, ss 53-56).

These duties and rights set the operational contours of employment, contracting and volunteer engagement in the NDIS context, and allocate responsibilities for assessment, verification and supervision between the Screening Agency and providers.

The Act establishes a mixture of criminal penalties, strict liability provisions, administrative actions and monitoring mechanisms to enforce compliance.

Criminal penalties

Unauthorised collection or use of information (s 53). It is an offence to intentionally collect or use information under the Act where such collection or use is not authorised by the Act or another law. Maximum penalty 200 penalty units or imprisonment for two years. Strict liability applies to the element in s 53(1)(b) concerning authorisation.
Offence to disclose certain information (s 54). A broad offence covers disclosure of confidential information obtained in the course of administering the Act where the discloser is reckless as to confidentiality and the disclosure is not for an authorised purpose or to a person entitled to the information. Maximum penalty 200 penalty units or imprisonment for two years. Strict liability applies to the fact of obtaining information in the course of administration under s 54(2). Consent by the subject of the information is a defence (s 54(3)). Note the Act specifies authorised purposes in Part 4.
Misleading information and documents (s 55). It is an offence to knowingly give misleading information or a misleading document to an authorised person acting in an official capacity. Maximum penalty 200 penalty units or imprisonment for two years. Strict liability attaches to whether the recipient is an authorised person (s 55(3)). There is an evidentiary defence for documents where the giver pointed out the misleading aspect and attempted to remedy it (s 55(4)).
Failure to comply with a notice requiring information (s 56). A notice under s 50 to provide relevant information is enforceable; failure to comply is an offence with maximum penalty 50 penalty units. Strict liability applies to this offence (s 56(2)).

Administrative enforcement measures

Interim bar and suspension (ss 31-32). The Screening Agency may impose an interim bar that prevents an applicant from working while the application is pending (s 31(1)). It must impose an interim bar in specific circumstances including pending charges and banning orders (s 31(2)). The Agency may suspend clearances for pending charges or banning orders, or when a reasonable likelihood exists that a risk assessment will find an unacceptable risk (s 32(2)).
Cancellation of clearances (s 26, s 39). The Agency may cancel a person’s clearance without proceeding to a risk assessment where the clearance was based on an invalid application, granted by mistake, or the Agency is no longer satisfied the person is or will be engaged to do NDIS work (s 26(1)). Cancellation also follows a concluded risk assessment where unacceptable risk is found and the person does not request internal review in the required period (s 39(1)).
Ongoing monitoring (s 27). The Agency monitors criminal charges, NDIS Commission records and other information and may suspend or cancel a clearance on the basis of ongoing monitoring (s 27(2)). The Agency must cancel if the person is a disqualified person (s 27(3)).

Review and judicial oversight

Internal review (s 42). Reviewable decisions are specified and an affected person may apply to the CEO for internal review by a designated public sector employee. The internal reviewer must comply with natural justice and may affirm, vary or substitute the decision (ss 42(4)-(7)). An internal reviewer’s decision in relation to an intention to refuse or cancel takes effect as the final decision for the application or clearance (s 42(8)).
NTCAT review (s 43). If the internal review outcome remains adverse, the affected person may apply to NTCAT to review internal reviewer decisions in the specified categories. NTCAT has obligations regarding classified criminal intelligence and may receive evidence in private where appropriate (s 44).

Notification and transparency

Decision notices. The Act requires written decision notices that set out the decision and reasons and any review rights (definition of decision notice in s 7). Failures to give notice do not affect the validity of the decision (s 61).

Evidentiary and protective features

Evidentiary certificates (s 59). The Screening Agency may issue certificates as evidence of clearance status, suspension, interim bar or application status. These certificates are admissible in legal proceedings as evidence.
Immunity for good faith (s 60). Persons are not civilly or criminally liable for acts done or omitted in good faith in exercise of powers under the Act; this does not affect other territory liabilities (s 60).

Criminal responsibility principles

Part IIAA of the Criminal Code applies to offences against the Act (s 14). That provision deals with general principles of criminal responsibility, defences and burdens of proof.

Enforcement therefore mixes criminal sanctions for misuse of information and dishonest behaviour with administrative levers targeted to prevent unsafe persons from engaging in NDIS work. The Act intentionally gives the Screening Agency both monitoring capability and coercive options such as interim bar, suspension and cancellation, while creating internal and tribunal review paths and confidentiality protections for criminal intelligence.

The Act is written to operate alongside a suite of Commonwealth, Territory and inter-jurisdictional instruments. The statute itself cites and integrates with specific laws and rules.

NDIS Act and NDIS rules

The Act applies to persons who, under Part 2 of the National Disability Insurance Scheme (Practice Standards - Worker Screening) Rules 2018 (Cth), are required to have an NDIS worker clearance (s 6). The Act therefore implements a Territory-level screening mechanism that maps to Commonwealth practice standards. The Act references the NDIS Code of Conduct and the NDIS Commission as relevant sources of information and enforcement action (s 7 definitions; ss 22(2)(b), 23(4), 24(3), 26(2), 27(4)). The Act requires the Screening Agency to notify the NDIS Commission of outcomes (e.g. ss 23(4), 24(3), 26(2), 27(4), 31(5), 32(4), 39(3)).

Criminal Code and criminal intelligence law

Part IIAA of the Criminal Code applies to offences under the Act (s 14). The Act also treats classified information and criminal intelligence in a special way in Tribunal reviews, requiring confidentiality steps and private hearings where appropriate (s 44). The Act invokes the Serious Crime Control Act 2009 definition of criminal intelligence (s 7 definitions), and cross-references that statute for classification of information.

Inter-jurisdictional screening laws and corresponding laws

The Act is designed to interact with “corresponding laws” of other States and Territories. A corresponding law is a law of a State or another Territory that corresponds with this Act and may be prescribed by regulation (s 7). The Act contemplates exchange of criminal history information and outcomes with screening authorities of States and other Territories, the Australian Criminal Intelligence Commission, and law enforcement agencies (s 51). Clearances are portable across roles and employers within the NDIS (s 24(2)), and the Screening Agency may share information and outcomes with screening authorities of other jurisdictions (ss 45(2)(a), 48).

Spent convictions and other Territory statutes

The Act adopts the existing concept of spent convictions in accordance with the Criminal Records (Spent Convictions) Act 1992 (s 7 definition spent conviction). Interpretation Act 1978 definitions and Agency definitions are incorporated by reference (s 7 notes). The CEO and Agency appointments, decision notices and other administrative processes are governed by Territory administrative law frameworks referenced in notes (s 7 decision notice note, s 15 CEO functions).

NDIS Commission banning orders and reportable incidents

The Act treats NDIS Commission banning orders and adverse outcomes as triggers for interim bars and suspensions (ss 31(2)(b), 32(2)(b)). The Screening Agency must assess NDIS Commission disciplinary records including adverse findings and adverse actions such as banning orders (s 22(2)(b)(i)-(ii)).

Information law and confidentiality

The Act imposes duties of privacy, accuracy and appropriate sharing on the Screening Agency (s 47). It allows de-identified secondary use for research subject to consent (s 18(3)). The Act gives authorised persons broad powers to disclose if necessary to prevent significant harm (s 49). It also includes the requirement that notices of decisions must not disclose the existence or content of any criminal intelligence disclosed to the Screening Agency (s 52).

Administrative law and review pathways

Internal review is provided under the CEO appointment model (s 42), and tribunal review is via NTCAT under the Northern Territory Civil and Administrative Tribunal Act 2014 (s 43). The NTCAT Act sets out review procedures as noted in the Act (s 7 note re decision notice, s 43 note). The Act’s internal review process must comply with natural justice rules (s 42(6)(b)).

Overall, the Act is framed to be an operational component of the broader worker screening architecture that includes Commonwealth NDIS Practice Standards and State/Territory screening regimes. It provides for data exchange, mutual notification and an expectation of portability within the NDIS while reserving the Screening Agency discretion to request additional information and to rely on law enforcement and NDIS Commission inputs in making risk findings.

The Act as supplied includes its endnotes recording the adoption and a key amendment.

Original enactment. National Disability Insurance Scheme (Worker Clearance) Act 2020, Act No. 7 of 2020. Assent date 9 March 2020. Commenced 1 July 2020 by Gazette notice (Endnotes, List of Legislation).
Amendment Act 2021. National Disability Insurance Scheme (Worker Clearance) Amendment Act 2021, Act No. 16 of 2021. Assent date 25 May 2021. Commenced 26 May 2021 (s 2 of that Amendment Act). The Endnotes list specified amendments: section 7 was amended by No. 16, 2021, s 4; section 13 was amended by No. 16, 2021, s 5. The endnotes also refer to certain provisions being expired under other instruments (pt 7 hdg exp No. 7, 2020, s 65; ss 63-65 exp No. 7, 2020, s 65) but the operative text supplied is as in force at 26 May 2021.
Nature of amendments. The endnotes identify targeted amendments to definitions and the Screening Agency provision: s 7 (interpretation definitions) and s 13 (Screening Agency declaration) were amended by the 2021 Act. The precise textual changes are not set out in the endnotes, but the endnotes identify those sections as amended. The Amendment Act’s commencement date is recorded as 26 May 2021 (Endnotes list).
Gazette notices. The Act requires the CEO to give notice of the acceptance date in the Gazette (s 15). The Minister is required to declare the Screening Agency by Gazette notice (s 13). These administrative commencement or implementation steps are part of its operationalisation and mean the Act’s timing depends on administrative instruments as well as formal amendment Acts.
Regulatory and rulemaking environment. The Act contemplates regulations to prescribe fees, disqualifying and presumed disqualifying offences and other matters (ss 17, 58, s 7 definitions). The Act also references Commonwealth worker screening rules under the NDIS Act. The amendment history shows the Act’s structure has already been subject to at least one targeted Territory amendment within its first year.

Users seeking to track further legislative change should consult Gazette notices for the Minister’s declaration of the Screening Agency, the CEO acceptance date, and any regulations that prescribe offences, fees or forms. The endnotes show the Act was operationalised between March and July 2020 and amended in May 2021, with s 7 and s 13 specifically altered.

The Act text supplied does not include any judicial or tribunal decisions, nor does it reference litigation under the Act. The statute establishes review pathways that would generate litigation and administrative appeals, but there is no record in the supplied instrument of any case law or tribunal determinations to date.

What the Act creates which could generate litigation

Internal review and NTCAT jurisdiction. The Act provides internal review rights to affected persons and gives NTCAT jurisdiction to review internal reviewer decisions (ss 42-43). This structure establishes an administrative law pathway by design, and potential challenges to the Screening Agency’s exercise of discretion, failure to observe natural justice, or reliance on classified criminal intelligence could arise through NTCAT appeals.
Confidentiality and classified information. Section 44 sets out specific procedures for classified information in NTCAT reviews, including private hearings and the Commissioner of Police’s role in withdrawing classified material. Those provisions may be the subject of procedural challenges regarding fairness and disclosure obligations.
Criminal offences and evidentiary certificates. Offences in Part 5 and the admissibility of Screening Agency certificates under s 59 create criminal enforcement and evidentiary contexts that could be litigated.
Interaction with Commonwealth rules. Because the Act is connected to Commonwealth NDIS Practice Standards and code-based banning orders, disputes over interpretation and compatibility could arise. However, the supplied text does not record any litigation on these points.

If case law or tribunal decisions are needed to inform argument or practice, the Act’s review processes create the avenues via internal review and NTCAT by which such jurisprudence will be generated. At present, no litigation history is recorded in the Act text supplied.

Several operational and legal traps are embedded in the Act’s language or administrative requirements. These are concrete compliance and procedural pitfalls to note.

Applicants may begin NDIS work while an application is pending, but strict conditions apply (s 21). The Act allows an applicant to engage in NDIS work once the application is filed, but only if:
- The application is complete and not discontinued or withdrawn (s 21(2)(a)-(b));
- The applicant has not been previously refused or had clearance cancelled (s 21(2)(c));
- The applicant is not subject to an interim bar (s 21(2)(d));
- The employer agrees to the applicant working and implements risk management strategies and supervision by a person with a clearance (s 21(2)(e)-(g)). Failure to meet any of these conditions may expose the employer and applicant to statutory contraventions. Also, subsection (3) disallows beginning NDIS work if the application was made in a jurisdiction that does not allow applicants to work pending determination, so multi-jurisdictional employers must check where the application was lodged.
Employer verification timeframe can discontinue applications (s 20(3)-(4)). A registered NDIS provider or NDIS provider must verify the engagement within the timeframe required by the Screening Agency; failing to verify in time leads to discontinuance of the application (s 20(4)). Employers therefore must have processes to verify promptly on request.
Withdrawal and surrender are constrained (s 40-41). An applicant cannot withdraw once an interim bar is imposed (s 40(1)). A clearance holder may request cancellation, but the Screening Agency must refuse to accede where the clearance is suspended or a risk assessment is underway (s 41(3)). Those rules prevent tactical withdrawals in many circumstances.
Presumed disqualified persons are subject to a general refusal rule (s 10(3)). If a person is a presumed disqualified person because of an adult offence or pending proceedings, a clearance must be refused unless exceptional circumstances exist. The Act does not define “exceptional circumstances” in s 10, leaving the Screening Agency discretion to determine which factual matrices will qualify.
Risk assessment threshold is lower than likelihood of future harm (s 35(1)). The Act expressly states the Agency need not be satisfied that it is likely the person will cause harm; the Agency must balance a range of factors and may take action on the basis of an unacceptable risk finding that does not rest on a prediction of future offending.
Strict liability elements and criminal penalties. Several offences have strict liability elements (s 53(2), s 55(3), s 56(2)). Unauthorised use or disclosure offences (s 53 and s 54) attract heavy penalties including imprisonment for up to two years. Employers and authorised persons must ensure that internal access and disclosure practices comply with Part 4 authorised purposes and s 47 protections.
Information sharing and confidentiality. While the Act allows broad sharing with authorised persons and interstate authorities (ss 48-51), s 52 prohibits disclosure in decision notices of the existence or content of criminal intelligence provided to the Screening Agency. Practitioners must be careful when preparing decision notices and communicating outcomes to ensure they do not inadvertently disclose protected intelligence.
Portability is across the NDIS but not necessarily outside it (s 24(2)). Clearances are portable across roles and employers within the NDIS. The Act does not create a general-purpose working-with-children or general vulnerable persons clearance beyond the NDIS context; employers outside the NDIS should not assume portability applies.
Five year reapplication prohibition and exception test (s 29(3)-(5)). Excluded persons are generally prohibited from reapplying for five years unless there is a “relevant change of circumstances” or other exceptional circumstances considered by the Agency. The Act enumerates examples of relevant changes including quashed findings and withdrawn proceedings (s 29(5)(a)-(d)) but leaves discretion to the Screening Agency to decide what constitutes an exceptional circumstance.
Internal review process and finality (s 42(8)). The decision of an internal reviewer in relation to an intention to refuse or cancel takes effect as a final decision for the application or clearance. Practitioners must note the internal review decision is the trigger point for seeking NTCAT review if still adverse (s 43(4)). Deadlines for seeking review must be observed.
Agency discretion on fees and forms (ss 17, 57, 58). The Screening Agency can exempt or waive fees and approve forms; however, absent regulatory guidance or published practice, applicants may face uncertainty about costs and required documentation.
Interaction with Commonwealth rules and banning orders (ss 22, 31-32). NDIS Commission adverse actions and banning orders trigger automatic or mandatory interim bars and suspensions; employers must monitor Commission actions. The Agency’s need to take into account interstate and international criminal history can complicate assessments and timeframes.
Evidence certificates are admissible (s 59). Screening Agency certificates stating clearance status are admissible in legal proceedings. Parties should be prepared to rely on those certificates but also to challenge their contents where appropriate.

These “gotchas” are practical points where failure to follow the Act’s procedural or timing requirements can produce unintended consequences for applicants and providers. Many of them flow from the Act’s allocation of timing-sensitive duties to providers (verification, supervision), the Agency’s information powers, and the stringent criminal provisions for mishandling sensitive data.

The Act imposes steps and processes that applicants, providers and the Screening Agency must observe. Below are practical compliance steps grounded in the Act’s provisions.

For registered NDIS providers (minimum binding obligations)

Role assessment. Assess all roles and identify risk assessed roles as required by s 11(2). Document the assessment criteria showing how roles involve key personnel duties, direct delivery of specified supports, or more than incidental contact (s 11(1)(a)-(c); s 8).
Verification processes. Establish administrative procedures to verify applicants’ engagement quickly when the Screening Agency requests verification (s 20(3)). Ensure someone is responsible for timely responses because failure to verify within the Screening Agency timeframe leads to discontinuance (s 20(4)).
Supervision and risk management for pending applicants. If permitting applicants to work while applications are pending, ensure conditions of s 21(2)(e)-(g) are met: employer agreement, documented risk management strategies, and supervision by a person with a clearance. Keep written records of supervision arrangements and risk mitigation steps.
Recordkeeping and disclosure obligations. Keep records of applicants’ screening outcomes and be prepared to receive notice from the Screening Agency about interim bars, suspensions or cancellations and to act on such notices, including ceasing to engage excluded persons (s 29(1)-(2)). Ensure staff are trained to comply with the NDIS Code of Conduct disclosure obligations referenced in s 29(2) note.
Information handling. Ensure internal practices comply with the Act’s privacy and information sharing principles in s 47. Limit access to screening information to authorised persons and ensure data protection steps are reasonable in the circumstances.

For applicants (employees, contractors, volunteers)

Application completeness. Lodge applications in the approved form and include prescribed information and proof of identity and fee (s 17(1)-(2)). Respond promptly to any Screening Agency requests for additional information to avoid discontinuance (s 17(3)-(4)).
Consents and disclosures. Provide the statutory consents required by s 18(1)-(2) to permit the Screening Agency to seek criminal history and NDIS Commission information and to enter relevant information into the national clearance database.
Self-disclosure. Disclose matters required under s 19, including prior refusals/cancellations, international criminal history, domestic violence or child protection orders and workplace misconduct findings. Omitting relevant matters may create later exposure under offences for misleading information (s 55).
Working while application pending. If seeking to work while application is pending, ensure that you are not excluded from doing so under s 21(2)(c)-(d), and that your employer has agreed and put supervision and risk management arrangements in place (s 21(2)(e)-(g)). If your application was made in a jurisdiction that does not allow working pending decision, you must not commence work (s 21(3)).

For the Screening Agency and administering body

Declaration and administration. Ensure the Minister’s Gazette notice declaring the Screening Agency is published (s 13); publish the application acceptance date via Gazette (s 15). Maintain approved forms and fee regulations (ss 15, 57-58).
Assessment procedures. Conduct criminal history checks, obtain NDIS Commission disciplinary information, consider prior screening outcomes, and, where relevant, seek additional law enforcement information (s 22). Ensure staff conducting risk assessments are appropriately skilled (s 36).
Decision notices and notifications. Issue written decision notices that specify reasons and review rights (s 7 definition decision notice). Notify the NDIS Commission of grants, refusals, suspensions and cancellations in accordance with the Act (numerous provisions including ss 23(4), 24(3), 26(2), 27(4), 31(5), 32(4), 39(3)).
Information governance. Implement formal information sharing processes and mechanisms that are reliable, robust and transparent, and take reasonable steps to protect personal information from misuse, interference, loss, unauthorised access, modification and disclosure (s 47(2)). Restrict information provided externally to what is appropriate and relevant, and only to authorised persons (s 47(1)(a)-(b)).
Ongoing monitoring. Implement systems for monitoring clearance holders for criminal charges and NDIS Commission records, and procedures to suspend or cancel clearances promptly where necessary (s 27).
Risk assessment weightings and procedural fairness. In risk assessments apply factors enumerated in s 35(2) and document reasons, reliability assessment of evidence, and processes for natural justice where an intention to refuse or cancel is expressed (ss 35, 37-38). Provide adequate time in notices to permit internal review applications (s 37(2)-(3)).
Certificates and evidentiary records. Maintain capacity to issue evidentiary certificates under s 59 for clearance status, suspension and interim bars. Ensure certificate issuance follows verified records as certificates are admissible in proceedings.

Compliance with criminal and administrative obligation

Avoid unauthorised collection and use of information. Ensure every collection, use and disclosure is authorised by the Act or another law; unauthorised collection/use is an offence (s 53).
Avoid reckless disclosure of confidential information. Train staff on what information is confidential and ensure disclosures fit within authorised purposes and recipients; otherwise s 54 may be engaged.
Avoid misleading authorised persons. Ensure all information and documents given to authorised persons are accurate and, where errors exist, disclose them contemporaneously to mitigate defences under s 55(4).
Respond to information notices. Comply with s 50 notices to provide relevant information; non-compliance is an offence of strict liability under s 56.

Practical implementation checklist for providers

Map roles and document risk-assessment methodology (s 11).
Create verification workflows linked to the Screening Agency’s timelines (s 20(3)).
Draft supervision and risk management templates for use where applicants commence pending clearance (s 21(2)(f)-(g)).
Train HR and operations staff on information handling, consent collection, decision notices and reporting contacts with the Screening Agency and the NDIS Commission (ss 17-18, 47).
Maintain a register of clearance statuses and dates to track expiries and five-year durations (s 25).
Implement a procedure for responding to notices under s 50 and for handling NDIS Commission notifications, banning orders and reportable incidents.

By following the Act’s specific procedural steps and documenting decisions that rely on the statutory factors and evidence, applicants and providers can reduce legal risk and create auditable compliance trails. The Screening Agency must similarly develop transparent decision frameworks, information governance, and skilled staffing for risk assessments as required by the Act.

National Disability Insurance Scheme (Worker Clearance) Act 2020

Plain English Summary

Deep Dive

What it does

Current sections

National Disability Insurance Scheme (Worker Clearance) Act 2020

Source text: opening excerpt

1 National Disability Insurance Scheme (Worker Clearance) Act 2020

Main concepts

Who it affects

Key duties and rights

Penalties and enforcement

How it interacts with other laws

Amendment history

Litigation history

Gotchas

How to comply