Schedule 2 — Class 2 offences
Notes
Compilation table 102
Uncommenced provisions table 102
Defined terms
An Act to provide for the screening of workers in connection with the operation of the National Disability Insurance Scheme and to amend certain other Acts as a consequence of this Act.
Part 1 — Preliminary
1. Short title
This is the National Disability Insurance Scheme (Worker Screening) Act 2020.
2. Commencement
(1) This Act comes into operation as follows —
(a) Part 1 — on the day on which this Act receives the Royal Assent (assent day);
(b) the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
(2) However —
(a) if no day is fixed under subsection (1)(b) before the end of the period of 10 years beginning on assent day, this Act is repealed on the day after that period ends; or
(b) if paragraph (a) does not apply, and a provision of this Act does not come into operation before the end of the period of 10 years beginning on assent day, that provision is repealed on the day after that period ends.
3. Act binds Crown
This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
4. Paramount consideration
In performing a function under this Act, the CEO or the State Administrative Tribunal must regard the safety and wellbeing of people with disability and, in particular, their right to live free from abuse, violence, neglect and exploitation, as the paramount consideration.
5. Terms used
(1) In this Act —
Aboriginal child means a child who is a descendant of the Aboriginal people of Australia;
adult means a person who has reached 18 years of age;
another jurisdiction means a jurisdiction other than this State (including jurisdictions outside Australia);
approved means approved by the CEO;
authorised officer means an officer designated under section 53 for the purposes of this Act or for the purposes of the provision in which the term is used;
authorised person means —
(a) a person or body exercising functions in the operation or administration of a relevant law; or
(b) the NDIS Commission; or
(c) a law enforcement agency of this State or another jurisdiction; or
(d) a person or body prescribed by the regulations for the purposes of this definition;
CEO means the chief executive officer of the Department;
CEO (Justice) means the chief executive officer of the department of the Public Service principally assisting in the administration of the Sentence Administration Act 2003 Part 8;
charge means a non‑conviction charge or a pending charge;
child means a person who is under 18 years of age;
Class 1 offence — see section 6(1);
Class 2 offence — see section 6(2);
Class 3 offence means an offence (including an offence under a law of another jurisdiction) that is not a Class 1 offence or a Class 2 offence;
Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892;
contact includes any form of face‑to‑face or physical contact, and communication, whether oral, written or electronic;
conviction — see section 7;
corresponding law means a law of another State or a Territory that —
(a) contains provisions that substantially correspond with the provisions of this Act; and
(b) is prescribed by the regulations as a corresponding law for the purposes of this Act;
court means a court constituted in this State or another jurisdiction;
criminal record, in relation to a person, means —
(a) every conviction of the person for an offence in this State or another jurisdiction; and
(b) every charge made against the person for an offence in this State or another jurisdiction;
criminal record check means the procedures set out in section 33 to enable the CEO to determine whether a person has a criminal record and, if so, to obtain related information about the person;
criminal records agency means —
(a) the Commissioner of Police; or
(b) the Commissioner of the Australian Federal Police; or
(c) the Commissioner (however designated) of the police force of another jurisdiction; or
(d) a person or body that is —
(ii) prescribed by the regulations for the purposes of this definition;
Department means the department of the Public Service principally assisting the Minister in the administration of this Act;
designated person means a person who has —
(a) applied for a clearance under this Act or a corresponding law; or
(b) a clearance under this Act or a corresponding law; or
(c) applied to cancel an NDIS worker check exclusion certificate under this Act or a corresponding law; or
(d) applied for an internal review or external review under this Act or a corresponding law;
disqualified person — see section 8(1);
DPP means the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1991 section 5 or a person or body exercising functions that substantially correspond to the functions of the Director of Public Prosecutions under the law of another jurisdiction;
engage includes to engage or act in any of the following capacities —
(a) as a paid or unpaid employee;
(b) as a self‑employed person or as a contractor or subcontractor;
(c) as a volunteer;
exclusion means a decision on which an NDIS worker check exclusion certificate is issued;
family member, in relation to a child, means —
(a) a parent, grandparent, brother, sister, uncle, aunt or cousin of the child, whether the relationship is established by, or traced through, consanguinity, marriage, a de facto relationship, a written law or a natural relationship; or
(b) for an Aboriginal child — a person regarded under the customary law or tradition of the child’s community as the equivalent of a person mentioned in paragraph (a); or
(c) for a Torres Strait Islander child — a person regarded under the customary law or tradition of the Torres Strait Islands as the equivalent of a person mentioned in paragraph (a); or
(d) a person determined by the CEO to be in a relationship with the child that is similar to a relationship mentioned in paragraph (a);
government agency means —
(a) a department of the Public Service; or
(b) a government department established or constituted under a law of another jurisdiction; or
(c) a body, whether incorporated or not, that is established, constituted or continued for a public purpose under a written law of this State or another jurisdiction and that, under the authority of a written law of this State or another jurisdiction, performs a statutory function on behalf of this State or a government of another jurisdiction;
harm includes but is not limited to any detrimental effect on a person’s physical, sexual, psychological, emotional or financial wellbeing;
health professional means a person who is —
(a) a health practitioner registered under the Health Practitioner Regulation National Law (Western Australia); or
(b) in a class of persons prescribed for the purposes of this definition;
interstate screening agency means a person or body exercising functions in the operation or administration of a corresponding law that substantially correspond to the functions of the CEO under this Act;
key personnel has the meaning given in the NDIS Act section 11A;
National Disability Insurance Scheme has the meaning given in the NDIS Act section 9;
NDIS Act means the National Disability Insurance Scheme Act 2013 (Commonwealth) and includes any regulations or rules under that Act;
NDIS Commission means the NDIS Quality and Safeguards Commission established under the NDIS Act section 181A;
NDIS employer means a person who engages a person to do NDIS work;
NDIS purpose —
(a) means any purpose that is for, or connected with, the operation or administration of, or compliance with, a relevant law (insofar as may be relevant to the National Disability Insurance Scheme); and
(b) includes any of the following purposes —
(i) verifying the identity of a person who is, or who has at any time been, an applicant for, or the holder of, a clearance under this Act or a corresponding law;
(ii) considering and deciding a person’s application for a clearance under this Act or a corresponding law;
(iii) assessing and determining under this Act or a corresponding law whether a person poses a relevant risk of harm;
(iv) assessing and determining whether a risk assessment of a person is required under this Act or a corresponding law;
(v) ongoing monitoring of a person who holds a clearance under this Act or a corresponding law for the purpose of determining whether the person requires a risk assessment or poses a relevant risk of harm;
(vi) considering and deciding a person’s application for the cancellation of an NDIS worker check exclusion certificate under this Act or a corresponding law;
(vii) conducting an internal review or external review under this Act or a corresponding law;
NDIS work —
(a) means work comprising, or connected with, the provision of supports or services to people with disability under the National Disability Insurance Scheme; and
(b) includes work that —
(i) is the subject of requirements under the NDIS Act for a person to have a clearance under this Act or a corresponding law in order to be allowed by a registered NDIS provider to engage in that work; or
(ii) is undertaken in the exercise or performance by a person of a power or duty delegated to the person by the CEO under this Act; or
(iii) the CEO is satisfied is work in respect of which it is otherwise necessary or convenient for a person to have a clearance to facilitate the person’s engagement in particular work;
but
(c) does not include, if the regulations so provide, work that is carried out in circumstances, or by a person, prescribed by the regulations for the purposes of this definition;
NDIS worker check clearance or clearance means a clearance granted under section 15(1) or 28(7) or under a corresponding provision under a corresponding law (however a clearance may be described under the corresponding law);
NDIS worker check clearance certificate means a certificate issued on the granting of a clearance;
NDIS worker check exclusion certificate means a certificate issued under section 15(4) or 25(11) or (14) or under a corresponding provision under a corresponding law (however such a certificate may be described under the corresponding law);
non‑conviction charge means a charge for an offence that has been disposed of by a court otherwise than by way of a conviction, and has a meaning affected by subsection (5);
notifiable person, in relation to an applicant for a clearance or the holder of an NDIS worker check clearance certificate under this Act, means —
(a) any person who proposes to engage, or who engages, the applicant or holder in NDIS work, as has been made known to the CEO under, or for the purposes of, this Act; or
(b) any other person prescribed by the regulations for the purposes of this definition;
officer means a person employed in, or engaged by, the Department whether as a public service officer under the Public Sector Management Act 1994, under a contract for services, or otherwise;
pending charge means a charge for an offence that has not yet been disposed of by a court;
presumptively disqualified person — see section 8(2);
public authority means —
(a) a department of the Public Service; or
(b) a body, whether incorporated or not, that is established, constituted or continued for a public purpose under a written law and that, under the authority of a written law, performs a statutory function on behalf of this State; or
(c) an entity established by or under the Health Practitioner Regulation National Law (Western Australia); or
(d) any other entity prescribed by the regulations for the purposes of this definition;
relevant information, in relation to a person, means —
(a) information relevant to verifying the identity of the person; or
(b) information about the person disclosed in an application for a clearance, or for the cancellation of an NDIS worker check exclusion certificate, under this Act or a corresponding law; or
(c) information relating to the person’s criminal record, and any other information relating to the person that is connected with, or otherwise related to, a conviction or charge mentioned in a criminal record; or
(d) information about workplace misconduct by the person in this or another jurisdiction, being misconduct that concerns persons to whom a relevant risk of harm relates; or
(e) information about any order imposed on the person by a court or tribunal relating to child protection, apprehended violence or domestic or family violence in this or another jurisdiction; or
(f) information relevant to determining whether the person requires a risk assessment under this Act or a corresponding law; or
(g) information about the person’s clearance history; or
(h) information about any current or past engagement of the person by an NDIS employer in this State or another State or a Territory; or
(i) other information relevant to determining whether the person poses a relevant risk of harm; or
(j) information about —
(i) the status of any application under this Act; or
(ii) any process or step that is being taken, or has been taken, under a relevant law; or
(iii) any certificate held, suspended or cancelled under this Act or a corresponding law; or
(iv) any interim bar imposed under this Act or a corresponding law;
or
(k) any other information prescribed by the regulations for the purposes of this definition;
relevant law means —
(a) this Act; or
(b) a corresponding law; or
(c) the NDIS Act;
relevant risk of harm means risk of harm to people with whose protection a relevant law is concerned;
risk assessed role means —
(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 person with disability; or
(c) a role for which the normal duties are likely to require more than incidental contact with a person with disability;
risk assessment has the meaning given in section 17(1);
Torres Strait Islander child means a child who is a descendant of the indigenous inhabitants of the Torres Strait Islands;
unacceptable risk means the risk described in section 17;
vulnerable person means an adult who is, or may be, unable to care for themselves, or unable to protect themselves from harm or exploitation, due to age, illness or disability.
(2) For the purposes of this Act —
(a) a self‑employed person who does NDIS work will be taken to be an NDIS employer who engages themselves to do that work; and
(b) a person may do NDIS work as a volunteer in their own right and, in this case, the person is taken to be self‑employed as a volunteer.
(3) For the purposes of the definition of relevant information in subsection (1), a person’s clearance history is the history of action taken under a relevant law in respect of —
(a) an application for a clearance by the person, or a clearance granted to the person under this Act or a corresponding law, including any risk assessment, determination, imposition of an interim bar, refusal of an application, or suspension or cancellation of an NDIS worker check clearance certificate under this Act or a corresponding law; or
(b) an application for the cancellation of an NDIS worker check exclusion certificate under this Act or a corresponding law.
(4) For the purposes of the definition of risk assessed role in subsection (1), and 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 person with disability if those duties include —
(a) physically touching a person with disability; or
(b) building a rapport with a person with disability as an integral and ordinary part of the performance of those duties; or
(c) having contact with multiple people with disability —
(i) as part of the direct delivery of a specialist disability support or service; or
(ii) in a specialist disability accommodation setting.
(5) A reference in this Act to a non‑conviction charge includes a reference to an expunged conviction as defined in the Historical Homosexual Convictions Expungement Act 2018 section 3(1).
(6) Subsection (5) applies despite anything in the Historical Homosexual Convictions Expungement Act 2018.
(7) Except where the contrary intention appears, a term used in this Act that is defined in the NDIS Act has the same meaning in this Act as it has in that Act.
6. Class 1 offence and Class 2 offence
(1) A Class 1 offence is —
(a) an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule or prescribed by the regulations); or
(b) an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; or
(c) an offence under a law of this State or another jurisdiction that is prescribed by the regulations to be a Class 1 offence; or
(d) an offence that, at the time it was committed or alleged to have been committed —
(i) was a Class 1 offence for the purposes of this Act; or
(ii) in the case of an offence committed, or alleged to have been committed, before the commencement of this section — was an offence of a kind referred to in this subsection;
or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in paragraphs (a) to (d).
(2) A Class 2 offence is —
(a) an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule or prescribed by the regulations); or
(b) an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; or
(c) an offence under a law of this State or another jurisdiction that is prescribed by the regulations to be a Class 2 offence; or
(d) an offence that, at the time it was committed or alleged to have been committed —
(i) was a Class 2 offence for the purposes of this Act; or
(ii) in the case of an offence committed, or alleged to have been committed, before the commencement of this section — was an offence of a kind referred to in this subsection;
or
(e) an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in paragraphs (a) to (d).
(3) An offence ceases to be classified as a Class 1 offence or a Class 2 offence if a pardon is granted in relation to the offence.
(4) For the purposes of Schedule 1 or 2, an offence falls within the ambit of this subsection if —
(a) the victim of the offence is a child who has reached 14 years of age; and
(b) the age difference between the victim and the offender does not exceed 5 years.
7. Conviction
(1) For the purposes of this Act, a reference to a conviction, in relation to an offence committed by a person, is a reference to any of the following —
(a) a court making a formal finding of guilt in relation to the offence;
(b) a court convicting the person of the offence, if there has been no formal finding of guilt before conviction;
(c) a court accepting a plea of guilty from the person in relation to the offence;
(d) a court acquitting the person following a finding under The Criminal Code section 27 that the person is not guilty of the offence on account of mental impairment or an acquittal following an equivalent finding under a law of another jurisdiction;
(e) a finding under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c) or an equivalent finding under a law of another jurisdiction.
(2) For the purposes of this Act, a reference to a conviction includes a reference to a conviction that is a spent conviction.
(3) For the purposes of subsection (2), an offence becomes spent if, under a law of this State or another jurisdiction, the person concerned is permitted not to disclose the fact that the person was convicted or found guilty of the offence.
(4) For the purposes of this Act, a reference to a conviction does not include a reference to a conviction that is subsequently quashed or set aside by a court.
[Section 7 amended: No. 10 of 2023 s. 390 and 412.]
8. Disqualified person and presumptively disqualified person
(1) For the purposes of this Act, a person is a disqualified person if the person has a conviction for a Class 1 offence committed by the person when an adult.
(2) For the purposes of this Act, a person is a presumptively disqualified person if —
(a) there is a pending charge against the person for an offence that is a Class 1 offence or a Class 2 offence alleged to have been committed by the person when an adult; or
(b) the person has a conviction for a Class 2 offence committed by the person when an adult; or
(c) the person —
(i) has a conviction for a Class 3 offence committed by the person when an adult; and
(ii) the offence was committed against, towards, or in the presence of, a child or vulnerable person; and
(iii) the CEO reasonably believes that in the course of committing the offence the person performed an indecent act.
9. Conduct, circumstances and criminal matters before commencement of Act
(1) This Act extends to conduct and circumstances occurring before the commencement of this section.
(2) References in this Act to convictions and charges extend to —
(a) convictions and charges that relate to events that occurred when a person was a child; and
(b) convictions and charges that occurred or were laid before the commencement of this section.
Part 2 — NDIS worker check clearances and exclusions
Division 1 — Applications for clearance
10. Making an application
(1) Subject to subsection (2), a person may apply to the CEO for an NDIS worker check clearance in accordance with this section if the person is engaged, or proposed to be engaged, in NDIS work.
(2) An applicant must —
(a) reside, or intend to reside, in this State; or
(b) undertake, or intend to undertake, NDIS work in this State.
(3) The application must be —
(4) The approved form must include provision for information —
(a) for the purposes of identifying the applicant; and
(b) about the person who has engaged, or who is proposing to engage, the applicant in NDIS work.
(5) The approved form may require the provision of such other information as the CEO thinks fit.
(6) The approved form may also provide for authorisation by the applicant of, and consent by the applicant to, the following —
(a) the making of inquiries about the applicant by the CEO for an NDIS purpose;
(b) the obtaining of relevant information about the applicant by the CEO from any person or body for an NDIS purpose;
(c) the disclosure of relevant information about the applicant by the CEO to any person or body for an NDIS purpose.
(7) An authorisation or consent under this section is not limited to operating for the purposes of an application for a clearance and extends to the making of inquiries, and the obtaining and disclosure of information or documents, in connection with and for the purposes of the ongoing monitoring of the holder of a clearance.
(8) An authorisation or consent under this section does not require the applicant to be given notice of the making of inquiries or the obtaining or disclosure of information or documents pursuant to the authorisation or consent.
(9) On receiving an application, the CEO may ask the applicant, by written notice or otherwise, to provide any further information or documents, within a reasonable specified period, that the CEO reasonably needs for the proper consideration of the application.
(10) The regulations may prescribe —
(a) other requirements that apply in relation to an application or the consideration of an application; and
(b) circumstances where an application is taken to be cancelled.
11. Certain persons not entitled to apply
(1) A person must not apply for a clearance if the person —
(a) is a disqualified person who has been refused a clearance, or has had a clearance cancelled, under this Act or a corresponding law; or
(b) has made an application for a clearance under this Act or a corresponding law and that application is pending; or
(c) currently has a clearance under this Act or a corresponding law, unless the application is made no more than 3 months before the expiry of the clearance or as provided by section 23(1)(c); or
(d) is subject to a 5‑year ban on applying for a clearance following refusal or cancellation of a clearance, as provided by subsection (2).
(2) Subject to subsection (3), a person who has had a clearance refused or cancelled under this Act or a corresponding law is not entitled to apply for a clearance for 5 years following the refusal or cancellation.
(3) Subsection (2) does not apply in relation to a cancellation that was made —
(a) at the request of the person under this Act or a corresponding law; or
(b) by the CEO acting under section 25(2) or 38(2) or an interstate screening agency acting under an equivalent provision under a corresponding law.
(4) This section does not limit the operation of section 28.
12. Determination of application
(1) An application for a clearance made in accordance with this Part cannot be determined until the CEO has, in respect of the applicant —
(a) carried out a criminal record check; and
(b) considered any information provided by the NDIS Commission in relation to the applicant.
(2) Subsection (1) does not limit —
(a) any other step or inquiry that the CEO may take under this Act before determining an application for a clearance; or
(b) any other process or requirement under this Act as to the assessment of an application for a clearance.
(3) An application for a clearance must be refused by the CEO if —
(a) the applicant is a disqualified person (and in such a case a risk assessment will not be conducted under Division 2); or
(b) a risk assessment of the applicant is conducted under Division 2 and the CEO determines that there is an unacceptable risk that the applicant may cause harm to people with disability in the course of carrying out NDIS work.
(4) The CEO may suspend consideration of an application pending the outcome of any process, step or inquiry under a corresponding law.
13. Interim bar
(1) The CEO may, at any time after receiving an application for a clearance but before the application is determined, impose an interim bar on the applicant —
(a) if the CEO is of the opinion that there is a reasonable likelihood that a risk assessment of the applicant will determine that there is an unacceptable risk that the applicant may cause harm to people with disability in the course of carrying out NDIS work; or
(b) on any other ground the CEO determines to be appropriate in the circumstances.
(2) The CEO must impose an interim bar if the CEO has information which indicates —
(a) that the applicant is a disqualified person or a presumptively disqualified person; or
(b) that the applicant was issued with an NDIS worker check exclusion certificate on the last occasion when the applicant applied for a clearance under a corresponding law; or
(c) in the case of an applicant who has previously held an NDIS worker check clearance certificate under a corresponding law — that on the last occasion on which the applicant held such a certificate, the clearance was cancelled and the applicant was issued with an NDIS worker check exclusion certificate; or
(d) that the applicant is the subject of a risk assessment under a corresponding law.
(3) The CEO imposes an interim bar by giving written notice of the interim bar to the applicant.
(4) The CEO may give written notice of an interim bar to —
(5) The CEO may, if the CEO considers it appropriate to do so, by giving written notice to the applicant, revoke an interim bar.
(6) Unless sooner revoked, an interim bar ceases to have effect when the application to which the interim bar relates is granted or refused.
(7) The CEO must give any person or body that received a notice under subsection (4) written notice of —
(a) the revocation of the interim bar under subsection (5); or
(b) the interim bar ceasing to have effect under subsection (6).
14. Notice of proposed refusal of application
(1) If the CEO proposes to refuse to grant a clearance to an applicant, the CEO must give written notice to the applicant —
(a) of the proposed decision; and
(b) that the applicant may make a submission to the CEO, in writing or in an approved form, within the period (being a period of at least 28 days) specified in the notice.
(2) Before deciding the application, the CEO —
(a) must consider any submission made by the applicant within the period specified in the notice under subsection (1); and
(b) may, if the CEO thinks fit, consider any submission made after the expiration of that period.
(3) If the applicant is a disqualified person, the only submission that the applicant may make is that the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the person as an adult.
15. Notice of final decision
(1) The CEO must decide an application for a clearance under this Act —
(a) by granting a clearance to the applicant; or
(b) by refusing to grant a clearance to the applicant.
(2) The CEO must give written notice to the applicant of the CEO’s decision on the application.
(3) In the event of a decision to grant a clearance, the notice of the decision must be accompanied by an NDIS worker check clearance certificate.
(4) In the event of a decision to refuse a clearance, the notice must —
(b) state that the applicant may, within 28 days after the date of the notice, apply to the CEO under Part 4 Division 1 for an internal review of the decision; and
(c) explain how the application for review is made; and
(d) be accompanied by an NDIS worker check exclusion certificate.
(5) A certificate under this section may be in a form, or represented in any manner, determined by the CEO.
(6) The CEO may give notice of the CEO’s decision on an application to —
16. Withdrawal of application
(1) Subject to this section, an application for a clearance may be withdrawn in an approved manner.
(2) An application cannot be withdrawn under subsection (1) if —
(a) the applicant is subject to an interim bar; or
(b) the CEO has notified the applicant that the CEO proposes to refuse to grant a clearance to the applicant and has not yet determined the application; or
(c) the withdrawal would be contrary to any provision made by the regulations.
(3) In addition, an application for a clearance is taken to be withdrawn if subsection (4), (5) or (6) applies.
(4) This subsection applies if —
(a) the applicant has failed to provide to the CEO any information or documents the CEO requires for the purposes of the application under section 10; and
(5) This subsection applies if —
(a) an NDIS employer or proposed NDIS employer identified by the applicant fails, within a period determined by the CEO to be reasonable in the circumstances, to verify that they have engaged, or propose to engage, the applicant in NDIS work; and
(6) This subsection applies if —
(a) an NDIS worker check exclusion certificate is issued to the applicant under a corresponding law after the application for a clearance is made under this Act; and
(7) The CEO may give written notice of a withdrawal under subsection (1) or (3) to —
Division 2 — Risk assessment
17. Nature of risk assessment
(1) A risk assessment is an assessment and determination by the CEO as to whether there is an unacceptable risk that a person may cause harm to people with disability in the course of carrying out NDIS work.
(2) The following principles are relevant to determining whether a risk is an unacceptable risk to people with disability —
(a) the risk may arise from conduct that is intended or otherwise;
(b) the risk may arise from conduct that is attributable to a single act, omission or circumstance, or a series or combination of acts, omissions or circumstances (whether actual or alleged);
(c) the risk does not need to arise from recent events;
(d) the risk may arise whether or not harm has been shown to have resulted from any past or alleged conduct;
(e) the risk does not need to be based on an assessment as to whether any conduct is likely to reoccur;
(f) the risk does not need to be likely.
(3) The following matters are irrelevant to determining whether a risk is an unacceptable risk to people with disability —
(a) whether any alleged conduct has not been proved beyond reasonable doubt or on the balance of probabilities;
(b) the adverse impact on a person of a decision that will prevent them from holding, or continuing to hold, an NDIS worker check clearance certificate;
(c) any potential benefit that will result from a person holding, or continuing to hold, an NDIS worker check clearance certificate.
18. Circumstances in which risk assessment will occur
(1) A risk assessment of an applicant for a clearance must be conducted by the CEO if —
(a) the CEO is aware of a pending charge against the applicant in respect of a Class 1 offence or a Class 2 offence; or
(b) the CEO is aware that the applicant has a non‑conviction charge in respect of a Class 1 offence or a Class 2 offence; or
(c) the CEO is aware that the applicant has been convicted of a Class 1 offence or a Class 2 offence for which a pardon has been granted; or
(d) the CEO is aware of a Class 2 offence or a Class 3 offence for which the applicant has been convicted; or
(e) the CEO is aware of a pending charge against the applicant in respect of a Class 3 offence and the CEO has reason to believe —
(i) that an indecent act was performed by the applicant in the course of allegedly committing the offence; or
(ii) that the applicant engaged in conduct that was of a threatening or violent nature in the course of allegedly committing the offence;
or
(f) the CEO is aware of a Class 1 offence for which the applicant has been convicted, committed by the applicant when the applicant was a child; or
(g) the applicant has previously had a clearance refused or cancelled under this Act or a corresponding law; or
(h) the CEO is in possession of other information that applies under subsection (3) and the CEO considers that it is necessary or appropriate to conduct a risk assessment; or
(i) any circumstance prescribed by the regulations applies.
(2) A risk assessment of the holder of an NDIS worker check clearance certificate may be conducted by the CEO, at any time, if the CEO has received information that applies under subsection (3) and the CEO considers that it is necessary or appropriate to conduct a risk assessment.
(3) The following information applies under this subsection —
(a) information received from an applicant for an NDIS worker check clearance or from the holder of an NDIS worker check clearance certificate (as the case may be);
(b) information received from the NDIS Commission;
(c) information received from an interstate screening agency;
(d) information received from a criminal records agency;
(e) information received from a relevant official under section 35;
(f) information received from a prescribed authority under section 36;
(g) information prescribed by the regulations.
19. Risk assessment of presumptively disqualified person
If a risk assessment is conducted in relation to a presumptively disqualified person, the person must be issued with an NDIS worker check exclusion certificate unless the CEO is satisfied that, because of the exceptional circumstances of the case, an NDIS worker check clearance should be granted.
20. Matters to be considered in risk assessment
(1) The CEO must consider the following for the purposes of a risk assessment of a person —
(a) the safety and wellbeing of people with disability and, in particular, their right to live free from abuse, violence, neglect and exploitation, as the paramount consideration;
(b) the person’s criminal, disciplinary, misconduct or other relevant history;
(c) the nature, gravity and circumstances of any criminal offending, misconduct or other action, circumstance or event relating to the person that is revealed by or referred to in any information in the possession of the CEO, and how it is relevant to NDIS work;
(d) any inferences or conclusions that may be drawn from 1 or more matters being considered by the CEO;
(e) the length of time that has passed since any relevant offending, misconduct or other action, circumstance or event occurred;
(f) the vulnerability of any victim of any relevant offending, misconduct or other action, circumstance or event at the time of its occurrence and the person’s relationship to the victim or position of authority over the victim at that time;
(g) the person’s conduct since any relevant offending, misconduct or other action, circumstance or event occurred;
(h) anything else that the CEO reasonably considers relevant to the assessment.
(2) The consideration of any matter under subsection (1) does not derogate from the operation of section 17.
Division 3 — Duration and renewal of clearances
21. Duration of clearances
(1) Subject to this Act, a clearance remains in force for a period of 5 years.
(2) The CEO may specify a date from which a clearance takes effect for the purposes of this Act (and if no date is specified in the relevant NDIS worker check clearance certificate then the clearance takes effect from the date on which the NDIS worker check clearance certificate is issued by the CEO).
(3) A clearance is —
(a) suspended if the relevant NDIS worker check clearance certificate is suspended; and
(b) cancelled if the relevant NDIS worker check clearance certificate is cancelled.
22. Application for further clearance
(1) If a clearance granted under this Act is no longer in force, or will expire within a period of 3 months, the person to whom it was granted may apply for a further clearance.
(2) Divisions 1 and 2 apply to the application as if the application for a further clearance were an application for an initial clearance.
[23. has not come into operation.]
Division 4 — Suspension and cancellation of NDIS worker check clearance certificates
24. Suspension of NDIS worker check clearance certificates
(1) The CEO may, by written notice to the holder of an NDIS worker check clearance certificate, suspend the certificate —
(a) if the CEO has received information that leads the CEO to believe that it is necessary or appropriate to suspend the certificate pending a risk assessment under Division 2; or
(b) if the holder of the certificate has applied for a clearance under a corresponding law and the CEO has been advised that an interim bar has been imposed in relation to the holder of the certificate under that corresponding law; or
(c) on any other ground the CEO determines to be appropriate in the circumstances.
(2) The CEO must suspend an NDIS worker check clearance certificate if the CEO has received information which indicates that the holder of the certificate has become a disqualified person or presumptively disqualified person since the certificate was issued.
(3) If the CEO imposes an interim bar on the holder of an NDIS worker check clearance certificate, the certificate is taken to be suspended while the interim bar has effect.
(4) The CEO may give written notice of the suspension of an NDIS worker check clearance certificate to —
(a) any person that the CEO reasonably believes to be a notifiable person in relation to the holder of the certificate; and
(5) The CEO may, if the CEO considers it appropriate to do so, by giving written notice to the holder of the certificate, revoke the suspension of the certificate.
(6) Unless sooner revoked, the suspension of an NDIS worker check clearance certificate ceases to have effect when —
(a) the certificate is cancelled; or
(b) the period for which the clearance was to remain in force expires; or
(c) in the case of a suspension under subsection (3) — the interim bar ceases to have effect.
(7) The CEO must give any person or body that received a notice under subsection (4) written notice of —
(a) the revocation of the suspension under subsection (5); or
(b) the suspension ceasing to have effect under subsection (6)(b) or (c).
(8) The CEO may suspend an NDIS worker check clearance certificate even if it has not come into operation.
25. Cancellation of NDIS worker check clearance certificates
(1) Subject to this section, the CEO must cancel an NDIS worker check clearance certificate if —
(a) the CEO becomes aware that the person holding the certificate is a disqualified person; or
(b) the CEO determines on a risk assessment that there is an unacceptable risk that the person holding the certificate may cause harm to people with disability in the course of carrying out NDIS work.
(2) The CEO may cancel an NDIS worker check clearance certificate if —
(a) the CEO is not satisfied that the holder of the certificate is or will be engaged to do NDIS work; or
(b) the clearance was granted pursuant to an application that was not valid; or
(c) the holder of the certificate also holds a certificate under a corresponding law and that certificate is cancelled; or
(d) the CEO is authorised to cancel the certificate on a ground prescribed by the regulations.
(3) The CEO must not act under subsection (1) unless the CEO has in respect of the person holding the NDIS worker check clearance certificate —
(a) carried out a criminal record check; and
(b) considered any information provided by the NDIS Commission in relation to the person.
(4) Subsection (3) does not limit —
(a) any other step or inquiry that the CEO may take under this Act; or
(b) any other process or requirement under this Act as to the reassessment of the person as the holder of an NDIS worker check clearance certificate.
(5) In addition, if the CEO proposes to cancel a certificate under subsection (1), the CEO must give written notice to the person holding the certificate —
(a) of the proposed cancellation; and
(b) that the person may make a submission to the CEO, in writing or in an approved form, within the period (being a period of at least 28 days) specified in the notice.
(6) Before deciding whether to cancel the certificate, the CEO must consider any submission made by the person holding the certificate within the period specified in the notice under subsection (5) (and may, if the CEO thinks fit, consider any submission made after the expiration of that period).
(7) If the cancellation is on the ground that the person holding the certificate is a disqualified person, the only submission that person may make is that the person’s criminal record does not include a conviction for a Class 1 offence committed by the person as an adult.
(8) The CEO may suspend the certificate pending the outcome of the processes set out in subsections (3) to (6).
(9) Subsection (8) does not limit the operation of section 24.
(10) The CEO must give written notice to the person holding an NDIS worker check clearance certificate of the CEO’s decision to cancel the certificate.
(11) The notice must —
(a) set out the reasons for the cancellation; and
(b) in the case of a cancellation under subsection (1) —
(i) state that the person may, within 28 days after the date of the notice, apply to the CEO under Part 4 Division 1 for an internal review of the decision; and
(ii) explain how the application for review is made; and
(iii) be accompanied by an NDIS worker check exclusion certificate.
(12) A certificate under subsection (11)(b)(iii) may be in a form, or represented in any manner, determined by the CEO.
(13) The CEO may give written notice of the cancellation of an NDIS worker check clearance certificate under this section to —
(a) any person that the CEO reasonably believes to be a notifiable person in relation to the holder of the certificate; and
(14) If the term of a clearance expires while the cancellation of the NDIS worker check clearance certificate is being considered under this section, the CEO may, as the CEO thinks fit, determine —
(a) not to take any further steps under this section; or
(b) to complete any process that has been commenced and then, if the CEO would have been required to cancel the certificate under subsection (1) had the clearance still been in force, issue an NDIS worker check exclusion certificate.
(15) The CEO may cancel an NDIS worker check clearance certificate even if it has not come into operation.
26. Cancellation at request of holder
(1) The holder of an NDIS worker check clearance certificate may at any time request the CEO to cancel the certificate.
(2) The request must be made in an approved manner.
(3) The CEO must, on receipt of a request under subsection (1), cancel the certificate except in the following circumstances (and must refuse to cancel the clearance in those circumstances) —
(a) the certificate is suspended;
(b) the holder of the certificate has applied for a further clearance under section 22(1) and is subject to an interim bar;
(c) the CEO is undertaking or is proposing to undertake a risk assessment of the holder of the certificate.
(4) The CEO must give written notice to the holder of the certificate when the certificate is cancelled.
(5) The CEO may give written notice of the cancellation of an NDIS worker check clearance certificate under this section to any person that the CEO reasonably believes to be a notifiable person in relation to the holder of the certificate.
Division 5 — Exclusions
27. Duration of exclusion
Subject to this Act, an NDIS worker check exclusion certificate issued under this Act remains in force indefinitely.
28. Cancellation of NDIS worker check exclusion certificate
(1) A person to whom an NDIS worker check exclusion certificate has been issued under this Act (other than a disqualified person) may apply to the CEO for the certificate to be cancelled.
(2) Subject to this section, the application cannot be made sooner than 5 years after —
(a) the date on which the NDIS worker check exclusion certificate was issued; or
(b) if the person has previously applied under this section — the date on which the most recent previous application was determined.
(3) Subsection (2) does not apply if —
(a) a pending charge for an offence to which subsection (4) applies, being an offence on which the exclusion was based, or the decision on which the previous application was made, is disposed of by a court otherwise than by way of a conviction; or
(b) a conviction for an offence on which the exclusion was based, or the decision on which the previous application was made, is quashed or set aside by a court; or
(c) the exclusion was based on, or the decision on which the previous application was made relates to, a Class 1 offence or a Class 2 offence and a pardon has been granted in relation to the offence; or
(d) a finding the subject of a risk assessment on which the exclusion was based, or the decision on which the previous application was made, is quashed or set aside or otherwise expressly or impliedly ceases to have effect; or
(e) any other significant or exceptional change of circumstances or other factor that the CEO considers should result in the person being able to apply for the cancellation of the NDIS worker check exclusion certificate has occurred or applies.
(4) This subsection applies to the following offences —
(a) Class 1 offences;
(b) Class 2 offences;
(c) Class 3 offences where the CEO had reason to believe that —
(i) an indecent act was performed by the person in the course of allegedly committing the offence; or
(ii) the person engaged in conduct that was of a threatening or violent nature in the course of allegedly committing the offence.
(5) An application for the cancellation of an NDIS worker check exclusion certificate must be —
(6) The following provisions apply (with any specified modifications) in relation to an application under this section as if the application were an application for a clearance —
(a) section 10(4)(a), as if the reference to the approved form were a reference to the approved form under this section;
(b) section 10(5) and (6), as if the reference to the approved form were a reference to the approved form under this section;
(c) section 10(7), (8) and (9);
(d) section 12(1), (2) and (3)(b);
(e) section 14(1) and (2);
(f) section 15(6);
(g) section 16(3) and (4);
(h) sections 17, 18(1), 19 and 20.
(7) If the CEO grants an application under this section, the CEO must —
(a) cancel the NDIS worker check exclusion certificate; and
(b) grant a clearance and issue an NDIS worker check clearance certificate.
(8) If the CEO refuses an application under this section, the CEO must give the applicant a written notice that —
(a) states the reasons for the decision; and
(b) states that the applicant may, within 28 days after the date of the notice, apply to the CEO under Part 4 Division 1 for an internal review of the decision; and
(c) explains how the application for review is made.
(9) Despite a preceding subsection, if the CEO receives information (verified in such manner as the CEO thinks fit) that a person to whom an NDIS worker check exclusion certificate has been issued holds a clearance granted under a corresponding law, the CEO must cancel the NDIS worker check exclusion certificate.
Division 6 — Change in criminal record or other information
29. Meaning of relevant change in criminal record and requirement to give notice of that change
(1) For the purposes of this Division, there is a relevant change in a person’s criminal record, whether or not the person has a criminal record, if the person is charged with or convicted of a Class 1 offence or a Class 2 offence.
(2) A requirement imposed on a person under this Division to give notice about a relevant change in the person’s criminal record does not require the person to give any information about the change except that the change has occurred.
30. Applicant must notify CEO of relevant change in criminal record
(1) This section applies to a person if —
(a) the person has applied to the CEO —
(i) for an NDIS worker check clearance; or
(ii) for an NDIS worker check exclusion certificate to be cancelled;
and
(b) the application is pending.
(2) The person must notify the CEO in writing, in an approved form, of a relevant change in the person’s criminal record as soon as practicable after the change occurs.
31. Person holding clearance must notify CEO of relevant change in criminal record
(1) A person holding an NDIS worker check clearance certificate must notify the CEO in writing, in an approved form, of a relevant change in the person’s criminal record as soon as practicable after the change occurs.
(2) If the CEO receives a notice under subsection (1), the CEO may advise the person’s NDIS employer, and any person who is proposing to engage the person in NDIS work, of the relevant change in the person’s criminal record disclosed in the notice.
32. Change in particulars
(1) This section applies to a person if —
(a) the person has applied to the CEO for an NDIS worker check clearance and the application is pending; or
(b) the person is the holder of an NDIS worker check clearance certificate; or
(c) the person has applied to the CEO for an NDIS worker check exclusion certificate to be cancelled and the application is pending.
(2) The person must notify the CEO in writing, in an approved form, of a relevant change of particulars as soon as practicable after the change occurs.
Penalty for this subsection: a fine of $5 000.
(3) For the purposes of subsection (2), a relevant change of particulars is any of the following —
(a) a change in the person’s name, residential address or contact details;
(b) a change in the person’s NDIS employer or in the person who is proposing to engage the person in NDIS work;
(c) a change prescribed by the regulations.
Part 3 — Information gathering and sharing
Division 1 — Criminal record checks
33. CEO may carry out criminal record checks
(1) This section applies in respect of a person who —
(a) has applied for a clearance under this Act or a corresponding law; or
(b) has given notice of a relevant change in their criminal record; or
(c) has a clearance under this Act or a corresponding law; or
(d) has applied to cancel an NDIS worker check exclusion certificate under this Act or a corresponding law; or
(e) has applied for an internal review or external review under this Act.
(2) The CEO may ask a criminal records agency for information or access to the respective records of the criminal records agency —
(a) to determine whether the person has a criminal record; and
(b) if the person has a criminal record — to obtain details of the criminal record.
(3) If the person has a criminal record, the CEO may ask a criminal records agency or the DPP for any information relating to the person in its possession that is connected with, or otherwise related to, a conviction or charge mentioned in the criminal record.
(4) Subsection (3) does not limit the powers of the CEO to request or obtain information under another provision of this Act.
Division 2 — General power to obtain, provide and use information
34. General power to obtain, provide and use information
(1) The CEO may request relevant information for an NDIS purpose from —
(a) an authorised person; or
(b) a public authority; or
(c) an interstate screening agency; or
(d) a government agency established or constituted under a law of another jurisdiction; or
(e) an employer or health professional; or
(f) any other person or body that, in the opinion of the CEO, may possess relevant information.
(2) A person or body to whom or which a request may be made under subsection (1) is authorised to disclose relevant information to the CEO for an NDIS purpose.
(3) The CEO may use relevant information obtained from any source for an NDIS purpose.
(4) The CEO may disclose relevant information for a purpose that applies under subsection (5) to —
(a) a government agency; or
(b) other than in relation to subsection (5)(c), a person or body (including a person or body acting under a law of another jurisdiction) prescribed by the regulations.
(5) The following purposes apply under this subsection —
(a) an NDIS purpose;
(b) a purpose relating to the administration or enforcement of the Working with Children (Screening) Act 2004 or an equivalent law in another jurisdiction;
(c) a purpose relating to the administration or enforcement of a law (including a law of another jurisdiction) prescribed by the regulations for the purposes of this paragraph that is relevant to the screening of people who work with people with disability.
(6) However, a report obtained from the CEO (Justice) under section 39 cannot be disclosed for the purpose applying under subsection (5)(b) without the approval of the CEO (Justice).
(7) Subsections (3), (4) and (6) do not limit the ability of the CEO to disclose information for any other purpose under this Act.
[Section 34 amended: No. 47 of 2022 s. 48.]
Division 3 — Provision of specific information
35. Provision of information by police and other officials or bodies
relevant official means —
(a) the Commissioner of Police; or
(b) a person or body that is prescribed by the regulations for the purposes of this definition.
(2) This subsection applies if a relevant official —
(a) knows or reasonably believes that a person charged with or convicted of an offence —
(i) is a designated person; or
(ii) carries out NDIS work;
and
(b) reasonably believes that the charge or conviction —
(i) indicates that it is, or may be, inappropriate for the person to hold an NDIS worker check clearance certificate under this Act or a corresponding law, or to carry out NDIS work; or
(ii) is otherwise relevant to the performance of a function by the CEO under this Act.
(3) In a case where subsection (2) applies, the relevant official may give the CEO any of the following information —
(a) the person’s name and address;
(b) the person’s date of birth;
(c) the offence with which the person has been charged or of which the person has been convicted;
(d) the details of the offence;
(e) the date of the charge or conviction;
(f) such other information as the relevant official thinks fit.
(4) This section does not limit the ability of the CEO to use relevant information obtained by the CEO from any source for an NDIS purpose, including information obtained from the Commissioner (however designated) of the police force of another jurisdiction.
36. Provision of information by registration and regulatory authorities
prescribed authority means any of the following —
(a) a registration, licensing or other regulatory authority that is established or constituted under an Act and that is prescribed by the regulations for the purposes of this definition;
(b) a professional or other body that supervises the conduct of a particular group or class of persons and that is prescribed by the regulations for the purposes of this definition;
(c) without limiting paragraph (a) or (b), a person or body with the authority or power to make findings or determinations that are relevant to the conduct of any person and that is prescribed by the regulations for the purposes of this definition;
(d) any other person, authority or body that is prescribed by the regulations for the purposes of this definition.
(2) This subsection applies if a prescribed authority —
(a) knows or reasonably believes that a finding made by or on behalf of the prescribed authority, or that is otherwise connected with the performance of a function by the prescribed authority, relates to —
(i) a designated person; or
(ii) any other person who carries out NDIS work;
and
(b) reasonably believes that the finding —
(i) indicates that it is, or may be, inappropriate for the person to hold an NDIS worker check clearance certificate under this Act or a corresponding law, or to carry out NDIS work; or
(ii) is otherwise relevant to the performance of a function by the CEO under this Act.
(3) In a case where subsection (2) applies, the prescribed authority may give the CEO any of the following information —
(a) the person’s name and address;
(b) the person’s date of birth;
(c) the details of the finding;
(d) such other information as the prescribed authority thinks fit.
(4) A prescribed authority may, by written notice to the CEO, inform the CEO of any variation to, or substitution, cancellation or setting aside of, any information supplied under subsection (3).
(5) In addition, the regulations may require —
(a) the provision to the CEO by a prescribed authority of particulars of any conduct or finding of a prescribed kind, or of any other information that may be relevant to the performance of a function by the CEO under this Act or otherwise relevant to the operation of this Act; and
(b) the keeping of records by a prescribed authority of information that may be relevant to the performance of a function by the CEO under this Act or otherwise relevant to the operation of this Act.
(6) On receiving any information from a prescribed authority under subsection (3), (4) or (5), the CEO may request the prescribed authority to provide any further information or documents to the CEO that the CEO reasonably requires for the purposes of this Act.
(7) A prescribed authority may provide any information or document in its possession in response to a request under subsection (6).
(8) References in this section to a finding extend to a finding that relates to events that occurred when the person was a child.
Division 4 — Information sharing for national register or database
37. Information sharing for national register or database
The CEO may disclose information obtained or created by the CEO in the administration of this Act to an authorised person for the purpose of providing information for entry in a national register or database established under the NDIS Act.
Division 5 — Ability to require the provision of information
38. Power to require information from clearance holder
(1) The CEO may, by written notice to the holder of an NDIS worker check clearance certificate, request the holder of the certificate to provide relevant information about the person for an NDIS purpose.
(2) The CEO is authorised to cancel the NDIS worker check clearance certificate if the holder of the certificate fails, without reasonable excuse, to provide the requested information within the time required for compliance with the request (unless the CEO has withdrawn the request).
(3) The period for compliance with a request is the period (being a period of at least 28 days) specified in the notice by which the request was made.
(4) The CEO may extend and further extend the period required for compliance with the request.
39. Power to require reports from CEO (Justice)
prescribed report means any of the following —
(a) a written pre‑sentence report, or a record of an oral pre‑sentence report, made under the Sentencing Act 1995 Part 3 Division 3;
(b) a report prepared for the purposes of the Sentence Administration Act 2003 section 11A, 17 or 51;
(c) a report prepared for the purposes of the Young Offenders Act 1994 section 47, 48(1) or 159;
(d) a report —
(i) made under, or prepared for the purposes of, the Bail Act 1982, the High Risk Serious Offenders Act 2020, the Sentence Administration Act 2003, the Sentencing Act 1995, the Prisons Act 1981 or the Young Offenders Act 1994; and
(ii) of a kind prescribed by the regulations for the purposes of this definition.
(2) The CEO may, for an NDIS purpose, by written notice request the CEO (Justice) to provide to the CEO a copy of a prescribed report.
(3) A request to the CEO (Justice) under this section may only relate to obtaining a report about an offender or alleged offender.
(4) The CEO (Justice) must comply with a request under this section within a reasonable period after the request is received.
(5) The CEO (Justice) is authorised to provide the requested report to the CEO.
(6) This section does not limit the operation of section 34.
Division 6 — Related provisions
40. Access to police information
(1) The Commissioner of Police may disclose the following information about a person for an NDIS purpose —
(a) information relating to any matter that may cause the person to be a disqualified person or require a risk assessment of the person, whether under this Act or a corresponding law;
(b) information relating to the person’s criminal record;
(c) without limiting paragraph (a) or (b), information relating to the person that is connected with, or otherwise related to, a conviction or charge mentioned in a criminal record, or the investigation or circumstances of any conduct or alleged conduct.
(2) A disclosure under this section is limited to the following —
(a) the CEO;
(b) an interstate screening agency;
(c) the Commissioner of the Australian Federal Police;
(d) the Commissioner (however designated) of the police force of another jurisdiction;
(e) a person or body that is —
(ii) prescribed by the regulations for the purposes of this subsection.
(3) A person to whom information is disclosed under this section may disclose that information to the NDIS Commission or to an interstate screening agency for an NDIS purpose.
(4) This section does not limit the powers of a person or body to disclose information under another provision of this Act.
(5) This section does not limit the persons to whom, or the circumstances in which, information may be disclosed apart from under this Act.
41. Access to other information
prescribed authority means —
(a) a public authority; or
(b) any other person or body that is prescribed by the regulations for the purposes of this definition.
(2) A prescribed authority may disclose any information in its possession or control for an NDIS purpose as it thinks fit.
(3) A disclosure under this section is limited to the following —
(a) an interstate screening agency;
(b) a person or body that is —
(ii) prescribed by the regulations for the purposes of this subsection.
(4) A person to whom information is disclosed under this section may disclose that information to the NDIS Commission or to an interstate screening agency for an NDIS purpose.
(5) This section does not limit the powers of a prescribed authority to disclose information under another provision of this Act.
(6) This section does not limit the persons to whom, or the circumstances in which, information may be disclosed apart from under this Act.
42. Provision of information to NDIS employers
(1) The CEO may disclose the following information about a person to an NDIS employer, or to any person who is proposing to engage the person in NDIS work —
(a) information relevant to the verification of the identity of the person;
(b) information about the outcome of any application for a clearance by, or risk assessment of, the person under this Act or a corresponding law;
(c) any other information prescribed by the regulations for the purposes of this subsection.
(2) This section does not limit the powers of the CEO to disclose information under another provision of this Act.
43. Provision of information to certain bodies
(1) The CEO may give a notice under subsection (2) to a public authority prescribed by the regulations in relation to a particular person if the CEO considers that it is in the public interest to do so.
(2) A notice under this subsection may provide the following information about the person to whom it relates —
(a) that an application for a clearance has been made by the person in respect of which no decision has yet been made under this Act;
(b) that an NDIS worker check clearance certificate has been issued to the person;
(c) that an application for a clearance has been withdrawn by the person;
(d) that an interim bar has been imposed on the person;
(e) that an NDIS worker check exclusion certificate has been issued to the person;
(f) that an NDIS worker check clearance certificate granted to the person has been suspended or cancelled;
(g) that the person does not have a current NDIS worker check clearance certificate.
(3) The CEO must give a further notice to a public authority if —
(a) a notice under subsection (2) related to the imposition of an interim bar or to the issue of an NDIS worker check exclusion certificate and the interim bar is revoked or ceases to have effect or the certificate is cancelled (as the case may be); or
(b) an NDIS worker check clearance certificate is subsequently issued to the person after the notice under subsection (2) is given; or
(c) a notice under subsection (2) related to the suspension of an NDIS worker check clearance certificate and the suspension is revoked or ceases to have effect.
(4) A notice under this section must be in writing.
44. Disclosure of information to prevent harm
prescribed authority means —
(a) an authorised person; or
(b) a public authority; or
(c) any other person or body that is prescribed by the regulations for the purposes of this definition.
(2) The CEO may disclose to a prescribed authority any information obtained as a result of the exercise of a function under this Act if there are reasonable grounds to suspect that there is a risk to the wellbeing of a person with disability, a child or a vulnerable person, or to a class of those persons, and the disclosure is reasonably necessary to prevent or address that risk.
(3) This section does not limit or derogate from any other Act or law relating to the disclosure of information for the protection of children or other persons.
Part 4 — Review
Division 1 — Internal review
45. Terms used
In this Division —
applicant means the person who applied for the clearance to which a designated decision relates;
designated decision means a decision of the CEO —
(a) imposing an interim bar under section 13;
(b) refusing to grant an NDIS worker check clearance under section 15;
(c) suspending an NDIS worker check clearance certificate under section 24;
(d) cancelling an NDIS worker check clearance certificate under section 25(1);
(e) refusing to cancel an NDIS worker check exclusion certificate under section 28.
46. Application for internal review
(1) An applicant may apply to the CEO for an internal review of a designated decision.
(2) The application must be —
(3) The application must be made —
(a) for a decision imposing an interim bar or suspending an NDIS worker check clearance certificate — at least 6 months after the CEO gives the applicant written notice of the interim bar or suspension; and
(b) for any other designated decision — within 28 days after the CEO gives the applicant written notice of the decision.
(4) If the applicant is a disqualified person, the only ground on which the applicant may seek review of a designated decision is that the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the applicant as an adult.
47. Extension of time to apply for internal review
(1) The CEO may, on application by the applicant or on the CEO’s own initiative, extend the time for making an application for an internal review.
(2) An application for an extension of time must be —
(3) The CEO must give written notice to the applicant of the CEO’s decision to grant or refuse an application for an extension of time.
(4) In the case of a decision to refuse an application for an extension of time, the notice must —
(b) state that the applicant may apply to the State Administrative Tribunal within 28 days after the date of the notice to have the decision reviewed; and
(c) explain how an application for review is made.
48. Consideration of application for internal review
(1) In dealing with an application for review, the CEO —
(a) must give the applicant a reasonable opportunity to make a submission in relation to the application (in such manner as the CEO determines to be appropriate in the circumstances); and
(b) may consider new material, whether or not it existed at the time the designated decision was made; and
(c) may exercise any power of the CEO under this Act that was able to be exercised in relation to the matter that gave rise to the designated decision (and any relevant provisions of this Act apply accordingly); and
(d) subject to the regulations, may adopt such other procedures and processes as the CEO thinks fit (taking into account the requirement to afford procedural fairness to the applicant).
(2) If the applicant is a disqualified person, the CEO may only review the issue of whether the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the applicant as an adult.
(3) The CEO may —
(a) if the applicant is a disqualified person —
(i) confirm the designated decision; or
(ii) where the CEO finds that the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the applicant as an adult — set aside the designated decision and substitute another decision for it, or take steps for the matter to be reconsidered on the basis that the person is not a disqualified person;
or
(b) in any other case —
(i) confirm or vary the designated decision; or
(ii) set aside the designated decision and substitute another decision for it, or take steps for the matter to be reconsidered under this Act.
(4) As soon as practicable after making a decision under subsection (3), the CEO must give written notice to the applicant of the CEO’s decision.
(5) In the case of a decision that is adverse to the applicant, the notice must —
(b) state that the applicant may apply to the State Administrative Tribunal within 28 days after the date of the notice to have the decision reviewed; and
(c) explain how an application for review is made.
49. Withdrawal of application
The applicant may withdraw an application under this Division at any time.
Division 2 — External review
50. Terms used
In this Division —
applicant has the meaning given in section 45;
reviewable decision means a decision made by the CEO under Division 1, including a decision refusing an application for an extension of time.
51. Application for external review
(1) An applicant may apply to the State Administrative Tribunal for a review of a reviewable decision.
(2) The application must be made within 28 days after the date of the notice of the decision issued by the CEO under Division 1.
(3) A decision that is the subject of an application for review under subsection (1) continues to have effect pending the outcome of the review (and the State Administrative Tribunal cannot make an order, or grant an interim injunction, staying the operation of the decision).
(4) If the applicant is a disqualified person, the only ground on which the applicant may seek review of a reviewable decision is that the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the applicant as an adult.
(5) In dealing with an application for review by a disqualified person, the State Administrative Tribunal —
(a) if it is satisfied that the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the applicant as an adult — may set aside the reviewable decision and refer it back to the CEO for assessment under this Act; and
(b) if it is not satisfied that the applicant’s criminal record does not include a conviction for a Class 1 offence committed by the applicant as an adult — must confirm the reviewable decision.
(6) Despite the State Administrative Tribunal Act 2004 section 29(5), a decision by the State Administrative Tribunal to set aside or vary a reviewable decision has effect from the date that it is delivered by the State Administrative Tribunal.
(7) For the purposes of the State Administrative Tribunal Act 2004 in respect of a review of a reviewable decision, any information that might enable an applicant to be identified must not be published.
(8) Despite subsection (7), the CEO is authorised to provide information referred to in that subsection to —
(a) the NDIS Commission; and
(b) an interstate screening agency; and
(c) any other person or body engaged in the administration of this Act or a corresponding law; and
(d) the CEO under the Working with Children (Screening) Act 2004.
[Section 51 amended: No. 47 of 2022 s. 49.]
Part 5 — Authorised officers and enforcement
Division 1 — Preliminary
52. Terms used
In this Part —
entry warrant has the meaning given in section 64(1);
investigation means an investigation of a suspected offence under this Act;
magistrate means a magistrate of the Magistrates Court;
record —
(a) means a record of information, irrespective of how the information is recorded or stored or able to be recovered; and
(b) includes —
(i) any thing from which images, sounds or writings can be reproduced, with or without the aid of anything else; and
(ii) any thing on which information is recorded or stored, whether electronically, magnetically, mechanically or by some other means;
relevant record means a record or document that contains information that is or may be relevant to an offence under this Act.
Division 2 — Authorised officers
53. Designation of authorised officers
The CEO may, in writing, designate officers to be authorised officers —
(a) generally for the purposes of this Act; or
(b) for the purposes of a provision of this Act specified in the designation.
54. Identity cards
(1) The CEO must ensure that each authorised officer is issued with an identity card in an approved form.
(2) An authorised officer must display the authorised officer’s identity card whenever dealing with a person in respect of whom the officer has exercised, is exercising, or is about to exercise, a power under this Act.
(3) In any proceedings the production by an authorised officer of the authorised officer’s identity card is conclusive evidence of their designation under section 53.
Division 3 — Powers of investigation
55. Entry to places
(1) An authorised officer may, for the purpose of an investigation, enter a place if —
(a) its occupier gives informed consent to the entry; or
(b) the entry is authorised by an entry warrant.
(2) An occupier gives informed consent to entry to a place if the occupier gives consent after being informed by an authorised officer —
(a) of the powers the officer wants to exercise in respect of the place; and
(b) of the reasons why the officer wants to exercise those powers; and
(c) that the occupier can refuse to consent to the officer entering the place.
56. Powers after entering place
An authorised officer who enters a place under section 55 may, for the purpose of an investigation, do any of the following —
(a) inspect the place and any thing at the place;
(b) search the place and any thing at the place;
(c) measure, test, photograph or film any part of, or any thing at, the place;
(d) take any thing, or a sample of or from any thing, at the place for analysis or testing;
(e) operate equipment or facilities at the place or direct a person at the place to do so;
(f) make a copy of, or take an extract from, any record or document at the place;
(g) seize any thing that is or may afford evidence of an offence under this Act;
(h) direct (orally or in writing) the occupier of the place, or a person at the place, to give the officer such assistance as the officer reasonably requires.
57. Directions to provide information or documents
(1) An authorised officer may, for the purpose of an investigation, do any of the following —
(a) direct a person —
(i) to give information; or
(ii) to answer a question put by the authorised officer;
(b) direct a person to produce a record or document that is in the person’s possession or under the person’s control;
(c) make a copy of a record or document produced in response to a direction under paragraph (b).
(2) A direction under subsection (1)(a) —
(a) must specify the time at or within which the information or answer must be given; and
(b) may require that the information or answer —
(i) be given orally or in writing; and
(ii) be given at, or sent or delivered to, a place specified in the direction; and
(iii) in the case of written information or a written answer — be sent or delivered by a means specified in the direction; and
(iv) be verified by statutory declaration.
(3) A direction under subsection (1)(b) —
(a) must specify the time at or within which the record or document must be produced; and
(b) may require that the record or document be produced —
(i) at a place specified in the direction; and
(ii) by a means specified in the direction.
(4) A person is not excused from complying with a direction under this section to give information, answer a question or produce a record or document on the ground that complying with the direction might tend to incriminate the person or render the person liable to a penalty.
(5) However, any information or answer given by an individual in compliance with a direction under subsection (4) is not admissible in evidence against the individual in criminal or civil proceedings other than proceedings for perjury or for an offence under section 69.
(6) In directing a person under this section, an authorised officer must explain to the person —
(a) that it is an offence to contravene the direction; and
(b) the effect of subsections (4) and (5).
(7) A direction under this section may be given orally or in writing.
58. Additional powers for relevant records
An authorised officer may, for the purpose of an investigation, do any of the following —
(a) operate a computer or other thing on which the officer suspects on reasonable grounds a relevant record is or may be stored or direct a person who has the custody or control of the computer or thing to do so;
(b) direct (orally or in writing) a person who is, or appears to be, in control of a record or document that the officer suspects on reasonable grounds is a relevant record to give the officer a translation, code, password or other information necessary to gain access to, or interpret and understand, the record or document;
(c) make a copy of, take an extract from, download, print out, photograph or film, a record or document that the officer suspects on reasonable grounds is a relevant record;
(d) seize a record or document that the officer suspects on reasonable grounds is a relevant record and retain it for as long as is necessary for the purposes of this Act;
(e) seize a computer or other thing on which the officer suspects on reasonable grounds a relevant record is or may be stored and retain it for as long as is necessary for the purposes of this Act;
(f) take reasonable measures to secure or protect a relevant record, or computer or other thing on which a relevant record is or may be stored, against damage or unauthorised removal or interference.
59. Offence to contravene directions
A person who, without reasonable excuse, fails to comply with a direction given to the person under this Division commits an offence.
Penalty: imprisonment for 12 months and a fine of $12 000.
60. Exercise of powers may be recorded
An authorised officer may record the exercise of a power under this Division, including by making an audiovisual recording.
61. Assistance and use of force to exercise power
(1) An authorised officer exercising a power under this Division may authorise as many other people to assist in exercising the power as are reasonably necessary in the circumstances.
(2) In exercising the power, an authorised officer, and a person authorised under subsection (1) to assist the officer, may use force that is reasonably necessary in the circumstances.
62. Procedure of seizing things
(1) If an authorised officer seizes any thing under this Division, the officer must give the person who was in possession of the thing a receipt for it in the approved form.
(2) If an authorised officer seizes any thing under this Division, the officer must, if practicable, allow a person who is otherwise entitled to possession of the thing to have reasonable access to it.
(3) An authorised officer who seizes any thing under this Division may take reasonable measures to prevent the thing being concealed, lost, damaged or destroyed.
(4) If it is not practicable to move any thing that has been seized, an authorised officer may do whatever is reasonably necessary to secure the thing where it is situated and to notify people that it is under seizure.
(5) A person must not, without the approval of an authorised officer, interfere or deal with any thing that the person knows, or ought reasonably to know, has been seized by an authorised officer.
Penalty for this subsection: imprisonment for 12 months and a fine of $12 000.
63. Application of Criminal and Found Property Disposal Act 2006
(1) The Criminal and Found Property Disposal Act 2006 applies to any thing that is seized under this Division.
(2) For the purposes of the Criminal and Found Property Disposal Act 2006, the Department is a prescribed agency.
Division 4 — Entry warrants
64. Application for entry warrant
(1) An authorised officer may apply to a magistrate for a warrant (an entry warrant) authorising the entry of a place for the purpose of an investigation.
(2) Subject to this section —
(a) an application for an entry warrant must be in writing and include the information prescribed by the regulations; and
(b) the grounds of the application must be verified by affidavit; and
(c) the applicant must appear in person before the magistrate to provide information in support of the application on oath.
(3) An application for an entry warrant may be made by remote communication if a magistrate considers that such an application is reasonable in the circumstances.
(4) If an application for an entry warrant is made by remote communication and it is not practicable to send the magistrate written material —
(a) the application may be made orally; and
(b) the magistrate must make a written record of the application and information given in support of it; and
(c) if the warrant is issued — the applicant must, as soon as practicable, send the magistrate an affidavit verifying the application and information given in support of it.
65. Issue and content of entry warrant
(1) On an application for an entry warrant, a magistrate may issue the warrant if satisfied that it is necessary for an authorised officer to enter a place for the purpose of an investigation.
(2) An entry warrant must contain the following information —
(a) a reasonably particular description of the place to which the warrant relates;
(b) a reasonably particular description of the purpose for which entry to the place is required;
(c) the provision of this Act suspected of being contravened;
(d) the period, not exceeding 14 days, during which the warrant may be executed;
(e) the name of the magistrate who issued the warrant;
(f) the date and time when the warrant was issued.
(3) An entry warrant must be in the form prescribed by the regulations.
(4) If a magistrate issues an entry warrant on an application made by remote communication —
(a) if it is practicable to send a copy of the original warrant to the applicant by remote communication — the magistrate must do so; or
(b) if it is not practicable —
(i) the magistrate must provide the applicant by remote communication with the information that must be set out in the warrant; and
(ii) the applicant must complete a form of warrant with the information received and give the magistrate a copy of the form as soon as practicable after doing so; and
(iii) the magistrate must attach the copy of the form to the original warrant and any affidavit received from the applicant and make them available for collection by the applicant.
(5) The copy of the original warrant, or the form of the warrant completed, under subsection (4) has the same force and effect as the original warrant.
66. Refusal of entry warrant
If a magistrate refuses to issue an entry warrant, the magistrate must record on the application, or the written record of the application, the fact of, the date and time of, and the reasons for, the refusal.
67. Effect of entry warrant
(1) An entry warrant comes into force when it is issued by a magistrate.
(2) An entry warrant may be executed according to its terms by an authorised officer entitled to enter the place for the purpose specified in the warrant.
(3) However, if an applicant for an entry warrant contravenes section 64(4)(c) or 65(4)(b)(ii), evidence obtained under the entry warrant is not admissible in proceedings in a court or tribunal.
Part 6 — General
68. Offence to work without clearance, without having applied for clearance or if subject to an exclusion
(1) A person must not start or continue to be employed or otherwise engaged by a registered NDIS provider in NDIS work which involves (wholly or in part) a risk assessed role unless —
(a) the person is the holder of an NDIS worker check clearance certificate and the certificate is not suspended; or
(b) the person has applied for an NDIS worker check clearance, the application is pending, and the person is not subject to an interim bar.
(2) A person must not start or continue to be employed or otherwise engaged by a registered NDIS provider in NDIS work which involves (wholly or in part) a risk assessed role if the person is subject to an NDIS worker check exclusion certificate.
69. Offence to give false or misleading information
A person must not give information to the CEO for the purposes of this Act that the person knows to be false or misleading in a material particular.
Penalty: imprisonment for 2 years and a fine of $24 000.
70. Service of documents
serve includes to give, send or notify.
(2) A document that is authorised or required by this Act to be served on any person may be served by any of the following methods —
(a) by email sent to an email address specified by the person for the service of documents under this Act;
(b) by any other method to which the person agrees for the service of documents under this Act;
(c) by any other method prescribed by the regulations.
(3) A document served under subsection (2)(a) is taken to have been served at the time of transmission.
(4) A document served under subsection (2)(c) is taken to have been served at the time prescribed by the regulations.
(5) This section does not limit the operation of the Interpretation Act 1984 sections 75 and 76.
71. Offence to use or disclose information obtained
A person who is or has been engaged in the performance of functions under this Act must not, directly or indirectly, disclose or make use of information obtained in the course of performing those functions except —
(a) for the purpose of, or in connection with, performing functions under this Act; or
(b) for the purpose of the investigation of a suspected offence under this Act or the conduct of proceedings against a person for an offence under this Act; or
(c) as required or allowed under this Act or another written law; or
(d) where the disclosure is for the purpose of providing reports to the NDIS Commission, or is otherwise connected with the operation of the National Disability Insurance Scheme; or
(e) where the disclosure involves the provision of statistical or other information or data that could not reasonably be expected to identify a specific person; or
(f) for the purpose of referring a matter to a law enforcement agency, or an agency exercising functions under an Act or other written law relating to the care or protection of children or people with disability (including an agency in another jurisdiction and including an Act or other written law of another jurisdiction); or
(g) as authorised under the regulations; or
(h) with the written consent of the Minister or the person to whom the information relates.
Penalty: imprisonment for 2 years and a fine of $24 000.
72. Ability to provide information and protection from liability
law includes the common law and any rules of equity.
(2) This subsection applies to information disclosed —
(a) to the CEO for the purposes of, or in connection with, any provision of this Act; or
(b) without limiting paragraph (a), in connection with the administration or enforcement of this Act; or
(c) by the CEO —
(i) to the NDIS Commission, or to any other person or body in connection with the operation of the National Disability Insurance Scheme; or
(ii) to a law enforcement agency, or an agency exercising functions under an Act or other written law relating to the care or protection of children or people with disability (including an agency in another jurisdiction and including an Act or other written law of another jurisdiction);
or
(d) as otherwise authorised or required under any provision of this Act; or
(e) as authorised under the regulations.
(3) In a case where subsection (2) applies, information may be disclosed despite any other enactment, law or agreement that prohibits or restricts its disclosure.
(4) Subsection (3) does not derogate from the operation of —
(a) section 34(6); or
(b) the Working with Children (Screening) Act 2004 section 34E(4).
(5) Subsections (2) and (3) extend to information relating to —
(a) spent convictions; or
(b) children.
(6) If information is disclosed by a person in good faith in a case where subsection (2) applies, the person —
(a) does not incur any civil or criminal liability; and
(b) is not to be taken to have breached any duty of confidentiality or secrecy imposed by law; and
(c) is not to be taken to have breached any professional ethics or standards or any principles of conduct applicable to the person’s employment or to have engaged in unprofessional conduct.
(7) Subsection (6) does not apply to the disclosure of information by a government agency established or constituted under a law of another jurisdiction.
[Section 72 amended: No. 47 of 2022 s. 50.]
73. Protection from personal liability
(1) A person does not incur any civil liability for anything that the person has done in good faith, in the performance or purported performance of a function under this Act.
(2) The State is also relieved of any liability that it might otherwise have had for another person having done anything as described in subsection (1).
(3) The protection given by this section applies even though the thing done as described in subsection (1) may have been capable of being done whether or not this Act had been enacted.
(4) In this section, a reference to the doing of anything includes a reference to the omission to do anything.
74. Failure to give notice of decision
A failure by the CEO to give notice of a decision or act of the CEO, as required by this Act, does not of itself affect the validity or effect of the decision or act under this Act.
75. Protection of legal professional privilege
Nothing in this Act requires a person to disclose information that is the subject of legal professional privilege.
76. Effect of Act on other rights and procedures
(1) Nothing in this Act affects any statutory right that an employee may have in relation to employment or the termination of employment.
(2) However, any court or tribunal exercising jurisdiction with respect to any such right must have regard to —
(a) the results of any determination of an application for a clearance or risk assessment carried out under this Act in connection with the work concerned; and
(b) the welfare of people with disability as the paramount consideration in that determination or assessment.
(3) Despite a provision of any other Act or law, the Western Australian Industrial Relations Commission and any other court or tribunal are taken not to have jurisdiction to order the payment of damages or compensation for any removal from employment of a person in connection with the operation of this Act.
77. Evidentiary matters
(1) The CEO may issue a certificate stating that, on a specified date or during a specified period —
(a) a specified person was or was not the holder of an NDIS worker check clearance certificate; or
(b) a specified person had or had not made an application for a clearance; or
(c) an NDIS worker check clearance certificate 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 specified person was or was not subject to an NDIS worker check exclusion certificate; or
(f) an NDIS worker check clearance certificate held by a specified person was or was not cancelled.
(2) A certificate given under this section is admissible in legal proceedings as evidence of the matters stated in the certificate.
(3) In proceedings for an offence against this Act, an NDIS worker check clearance certificate, NDIS worker check exclusion certificate, interim bar notice or other notice issued under this Act may be proved by tendering a copy of it certified by the CEO to be a true copy of the original.
(4) Unless the contrary is proved, it must be presumed that a document purporting to have been signed by the CEO was signed by a person who at the time was the CEO.
(5) Unless the contrary is proved, it must be presumed that a document purporting to have been signed by a delegate of the CEO was signed by a person who at the time was a delegate of the CEO and was authorised to sign it.
(6) This section is in addition to, and does not affect the operation of, the Evidence Act 1906.
78. Delegation by CEO
public sector employee means an employee as defined in the Public Sector Management Act 1994 section 3(1).
(2) The CEO may delegate to a public sector employee or, with the approval of the Minister, another person, any power or duty of the CEO under another provision of this Act.
(3) The delegation must be in writing signed by the CEO.
(4) The delegation may expressly authorise the delegate to further delegate the power or duty.
(5) A person exercising or performing a power or duty that has been delegated to the person under this section or as authorised under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(6) Nothing in this section limits the ability of the CEO to perform a function through an officer or agent.
79. Delegation by prescribed authorities
chief executive officer, in relation to a prescribed authority, means the principal officer (however described) of that body;
prescribed authority means a public authority or other body prescribed by the regulations for the purposes of this definition.
(2) The chief executive officer of a prescribed authority may delegate to an officer or employee of the prescribed authority any power or duty of the prescribed authority under this Act.
(3) The delegation must be in writing signed by the chief executive officer.
(4) The delegation may expressly authorise the delegate to further delegate the power or duty.
(5) A person exercising or performing a power or duty that has been delegated to the person under this section or as authorised under this section is taken to do so in accordance with the terms of the delegation unless the contrary is shown.
(6) Nothing in this section limits the ability of the prescribed authority to perform a function through an officer of the prescribed authority or an agent.
80. Commencement of proceedings
(1) Proceedings under this Act for an offence or in respect of any other matter may be commenced in the name of the CEO by the CEO or by a person authorised to do so by the CEO.
(2) In any proceedings no proof is required of —
(a) the appointment of the CEO; or
(b) the authorisation of a person under subsection (1).
(3) An averment in a prosecution notice that a person is appointed or authorised under subsection (2) is taken to be proved unless the contrary is proved.
(4) Subsection (1) does not limit the ability of a person to commence or conduct the prosecution of an offence if the person has authority at law to do so.
81. Regulations
(1) The Governor may make regulations prescribing all matters that are required or permitted by this Act to be prescribed, or are necessary or convenient to be prescribed, for giving effect to the purposes of this Act.
(2) Without limiting subsection (1), the regulations may —
(a) provide for the receipt and storage of information obtained or created under this Act that relates to a person’s criminal record and the restriction of access to that information; and
(b) provide for procedures and processes associated with the review of decisions of the CEO under this Act; and
(c) create offences and provide, in respect of an offence so created, for the imposition of a penalty not exceeding a fine of $6 000.
82. Transitional regulations
publication day, for transitional regulations, means the day on which those regulations are published in the Gazette;
specified means specified or described in transitional regulations;
transitional matter —
(a) means a matter of a transitional nature that arises as a result of the enactment of this Act; and
(b) includes a saving or application matter;
transitional regulations means regulations referred to in subsection (2).
(2) If there is not sufficient provision in this Act for dealing with a transitional matter, regulations under this Act may prescribe anything required, necessary or convenient to be prescribed in relation to that matter.
(3) Transitional regulations may provide that specified provisions of this Act —
(a) do not apply to or in relation to a specified matter; or
(b) apply with specified modifications to or in relation to a specified matter.
(4) Transitional regulations may provide that a state of affairs is taken to have existed, or not to have existed, on and from a day that is —
(a) earlier than publication day; but
(b) not earlier than the day on which this section comes into operation.
(5) A provision referred to in subsection (4) does not operate so as to —
(a) affect in a manner prejudicial to any person (other than the State) the rights of that person existing before publication day; or
(b) impose liabilities on any person (other than the State) in respect of anything done or omitted to be done before publication day.
83. Review of Act
(1) The Minister must review the operation and effectiveness of this Act, and prepare a report based on the review, as soon as practicable after the 5th anniversary of the day on which this section comes into operation.
(2) The Minister must cause the report to be laid before each House of Parliament as soon as practicable after it is prepared, but not later than 12 months after the 5th anniversary.
(3) If, in the Minister’s opinion, a House of Parliament will not sit during the period of 21 days after finalisation of the report, the Minister must send the report to the Clerk of the House.
(4) When the report is sent to the Clerk of a House it is taken to have been laid before the House.
(5) The laying of the report that is taken to have occurred under subsection (4) must be recorded in the Minutes, or Votes and Proceedings, of the House on the first sitting day of the House after the Clerk receives the report.
Part 7 — Consequential amendments to other Acts
Division 1 — Spent Convictions Act 1988 amended
84. Act amended
This Division amends the Spent Convictions Act 1988.
85. Section 28 amended
In section 28(2)(a) delete “a child; and” and insert:
a child or a person with disability; and
86. Schedule 3 amended
(1) In Schedule 3 clause 2(6) the Table after item 2 insert:
| 3. A person who is disclosing information where the Working with Children (Criminal Record Checking) Act 2004 section 39A applies. |
|---|
(2) In Schedule 3 clause 2 after subclause (7) insert:
(8) The CEO as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1) is excepted from the provisions of section 28(1) in respect of all spent convictions in disclosing information under section 34 of that Act if the disclosure is to —
(a) the CEO as defined in the Working with Children (Criminal Record Checking) Act 2004 section 4; or
(b) a corresponding authority as defined in the Working with Children (Criminal Record Checking) Act 2004 section 37(1) and that agency is a person prescribed under section 28(2).
(3) After Schedule 3 clause 2 insert:
- Exceptions as to spent convictions relating to the protection of people with disability
(1) The persons specified in the Table to this subclause are excepted from the provisions of sections 27 and 28 in respect of all spent convictions.
Table
| 1. A person in respect of whom the National Disability Insurance Scheme (Worker Screening) Act 2020 section 33 applies. |
|---|
| 2 A person making, or giving effect to, a request for a criminal record check as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1). |
| 3 A person making, or giving effect to, a request for a report or information under the National Disability Insurance Scheme (Worker Screening) Act 2020 section 10, 34, 38, 39, 40 or 41. |
| 4. A person who is disclosing information under the National Disability Insurance Scheme (Worker Screening) Act 2020 section 72. |
(2) The CEO as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1) is excepted from the provisions of section 28(1) in respect of all spent convictions in disclosing information under section 34 of that Act if the disclosure is to —
(a) an interstate screening agency as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1) and that agency is a person prescribed under section 28(2); or
(b) a government agency as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1) and that agency is a person prescribed under section 28(2); or
(c) a person or body prescribed under section 34(4)(b) of the National Disability Insurance Scheme (Worker Screening) Act 2020 and that person or body is a person prescribed under section 28(2).
(3) The CEO as defined in the Working with Children (Criminal Record Checking) Act 2004 section 4 is excepted from the provisions of section 28(1) in respect of all spent convictions in disclosing information under section 37A of that Act if the disclosure is to —
(a) the CEO as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1); or
(b) an interstate screening agency as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1) and that agency is a person prescribed under section 28(2).
Division 2 — Working with Children (Criminal Record Checking) Act 2004 amended
87. Act amended
This Division amends the Working with Children (Criminal Record Checking) Act 2004.
88. Section 4 amended
In section 4 insert in alphabetical order:
CEO (Justice) means the chief executive officer of the department of the Public Service principally assisting in the administration of the Sentence Administration Act 2003 Part 8;
corresponding law means a law of another State or a Territory that —
(a) contains provisions that substantially correspond with the provisions of this Act; and
(b) is prescribed by the regulations as a corresponding law for the purposes of this Act;
89. Section 37A inserted
After section 37 insert:
37A. Exchange of information under National Disability Insurance Scheme (Worker Screening) Act 2020
prescribed report means any of the following —
(a) a written pre‑sentence report, or a record of an oral pre‑sentence report, made under the Sentencing Act 1995 Part 3 Division 3;
(b) a report prepared for the purposes of the Sentence Administration Act 2003 section 11A, 17 or 51;
(c) a report prepared for the purposes of the Young Offenders Act 1994 section 47, 48(1) or 159;
(d) a report —
(i) made under, or prepared for the purposes of, the Bail Act 1982, the High Risk Serious Offenders Act 2020, the Prisons Act 1981, the Sentence Administration Act 2003, the Sentencing Act 1995 or the Young Offenders Act 1994; and
(ii) of a kind prescribed by the regulations for the purposes of this definition.
(2) The CEO may disclose to the CEO or an interstate screening agency (as those terms are defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1)) information obtained or created under this Act that relates to a person’s criminal record or to an application made by, or a notice issued to, a person under this Act.
(3) The CEO may ask the CEO or an interstate screening agency (as those terms are defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1)) to disclose to the CEO information obtained or created by the CEO or interstate screening agency that —
(a) corresponds to the information referred to in subsection (2); and
(b) relates to a person who has made an application, or has been issued with a notice, under this Act.
(4) However, a prescribed report obtained from the CEO (Justice) cannot be disclosed under subsection (2) without the approval of the CEO (Justice).
90. Section 39A inserted
After section 39 insert:
39A. Ability to provide information and protection from liability
external government agency means —
(a) a government department established or constituted under a law of another jurisdiction; or
(b) a body, whether incorporated or not, that is established, constituted or continued for a public purpose under a written law of another jurisdiction and that, under the authority of a written law of another jurisdiction, performs a statutory function on behalf of a government or another jurisdiction;
law includes the common law and any rules of equity.
(2) This subsection applies to information disclosed —
(a) to the CEO for the purposes of, or in connection with, any provision of this Act; or
(b) without limiting paragraph (a), in connection with the administration or enforcement of this Act; or
(c) by the CEO to —
(i) the CEO as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1); or
(ii) an interstate screening agency as defined in the National Disability Insurance Scheme (Worker Screening) Act 2020 section 5(1);
or
(d) as otherwise authorised or required under any provision of this Act; or
(e) as authorised by the regulations.
(3) In a case where subsection (2) applies, information may be disclosed despite any other enactment, law or agreement that prohibits or restricts its disclosure.
(4) Subsection (3) does not derogate from the operation of —
(a) section 37A(4); or
(b) the National Disability Insurance Scheme (Worker Screening) Act 2020 section 34(6).
(5) Subsections (2) and (3) extend to information relating to —
(a) spent convictions; or
(b) children.
(6) If information is disclosed by a person in good faith in a case where subsection (2) applies, the person —
(a) does not incur any civil or criminal liability; and
(b) is not to be taken to have breached any duty of confidentiality or secrecy imposed by law; and
(c) is not to be taken to have breached any professional ethics or standards or any principles of conduct applicable to the person’s employment or to have engaged in unprofessional conduct.
(7) Subsection (6) does not apply to the disclosure of information by an external government agency.
Schedule 1 — Class 1 offences
[s. 6(1)]
| Provision | Description of offence | | Condition |
| The Criminal Code | | | |
| s. 181 | | Carnal knowledge of animal | |
| s. 186 | | Occupier or owner allowing young person to be on premises for unlawful carnal knowledge | |
| s. 187 | | Facilitating sexual offence against child outside Western Australia | |
| s. 191 | | Procuring person to be prostitute | The victim is a child or a vulnerable person |
| s. 192 | | Procuring person to have unlawful carnal knowledge by threat, fraud or administering drug | The victim is a child or a vulnerable person |
| s. 204A | | Showing offensive material to child under 16 | The offensive material is child exploitation material as defined in The Criminal Code section 217A<br>The offence does not fall within the ambit of section 6(4) |
| s. 204B | | Using electronic communication to procure, or expose to indecent matter, child under 16 | The offence does not fall within the ambit of section 6(4) |
| s. 217 | | Involving child in child exploitation | The offence does not fall within the ambit of section 6(4) |
| s. 218 | | Producing child exploitation material | The offence does not fall within the ambit of section 6(4) |
| s. 219 | | Distributing child exploitation material | The offence does not fall within the ambit of section 6(4) |
| s. 220 | | Possession of child exploitation material | The offence does not fall within the ambit of section 6(4) |
| s. 279 | | Murder | |
| s. 283 | | Attempt to unlawfully kill | |
| s. 284(3)(c) | | Culpable driving (not of a motor vehicle or vessel) causing death | The offence is committed with intent to cause death |
| s. 284(3)(d) | | Culpable driving (not of a motor vehicle or vessel) causing grievous bodily harm | The offence is committed with intent to cause grievous bodily harm to a child or a vulnerable person |
| s. 293 | | Stupefying in order to commit indictable offence | The victim is a child or a vulnerable person |
| s. 294 | | Act intended to cause grievous bodily harm or prevent arrest | The victim is a child or a vulnerable person |
| s. 305 | | Setting dangerous thing | The intended victim is a child or a vulnerable person |
| s. 306(2) | | Female genital mutilation | The victim is a child or a vulnerable person |
| s. 306(4) | | Female genital mutilation — taking or arranging for a child to be taken from the State | |
| s. 317A(b) | | Assault with intent to do grievous bodily harm | The victim is a child or a vulnerable person |
| s. 320 | | Sexual offences against child under 13 | |
| s. 321 | | Sexual offences against child of or over 13 and under 16 | The offence does not fall within the ambit of section 6(4) |
| s. 321A | | Persistent sexual conduct with child under 16 | The offence does not fall within the ambit of section 6(4) |
| s. 322 | | Sexual offences against child of or over 16 by person in authority | |
| s. 323 | | Indecent assault | The victim is a child or a vulnerable person<br>The offence does not fall within the ambit of section 6(4) |
| s. 324 | | Aggravated indecent assault | The victim is a child or a vulnerable person<br>The offence does not fall within the ambit of section 6(4) |
| s. 325 | | Sexual penetration without consent | The victim is a child or a vulnerable person<br>The offence does not fall within the ambit of section 6(4) |
| s. 326 | | Aggravated sexual penetration without consent | The victim is a child or a vulnerable person<br>The offence does not fall within the ambit of section 6(4) |
| s. 327 | | Sexual coercion | The victim is a child or a vulnerable person |
| s. 328 | | Aggravated sexual coercion | The victim is a child or a vulnerable person |
| s. 329(2) | | Sexual penetration of a child who the offender knows to be his or her lineal relative or de facto child | |
| s. 329(3) | | Procuring, inciting or encouraging a child who the offender knows is his or her lineal relative or a de facto child to engage in sexual behaviour | |
| s. 329(4) | | Indecently dealing with a child who the offender knows is his or her lineal relative or a de facto child | |
| s. 329(5) | | Procuring, inciting or encouraging a child who the offender knows is his or her lineal relative or a de facto child to do an indecent act | |
| s. 329(6) | | Indecently recording a child who the offender knows is his or her lineal relative or a de facto child | |
| s. 329(7) | | Sexually penetrating a person who the offender knows is his or her lineal relative | The victim is a vulnerable person |
| s. 330 | | Sexual offences against incapable person | |
| s. 331B | | Sexual servitude | The victim is a child or a vulnerable person |
| s. 331C | | Conducting business involving sexual servitude | The victim is a child or a vulnerable person |
| s. 331D | | Deceptive recruiting for commercial sexual service | The victim is a child or a vulnerable person |
| s. 332 | | Kidnapping | The victim is a child or a vulnerable person, other than where the victim is a child and the offender is a family member of the child |
| s. 343 | | Child stealing | The offence is committed by a person other than a family member of the child |
| s. 562 | | Accessory after the fact to an indictable offence | The principal offence is the offence of murder |
| | | | |
| Children and Community Services Act 2004 | | | |
| s. 192 | Employing a child, or permitting a child to be employed, to perform in an indecent, obscene or pornographic manner | | |
| Classification (Publications, Films and Computer Games) Enforcement Act 1996 | | | |
| s. 59(1) | Possessing or copying an indecent or obscene article with intent to sell or supply, or selling or supplying, or offering to sell or supply, an indecent or obscene article | | The article is child exploitation material as defined in The Criminal Code section 217A |
| s. 59(3) or (4) | Displaying, exhibiting or demonstrating an indecent or obscene article in specified circumstances | | The article is child exploitation material as defined in The Criminal Code section 217A |
| s. 59(5) | Possessing or copying an indecent or obscene article | | The article is child exploitation material as defined in The Criminal Code section 217A<br>The offence does not fall within the ambit of section 6(4) |
| s. 101 | Using a computer service to transmit, obtain, demonstrate, advertise or request transmission of objectionable material | | The material is child exploitation material as defined in The Criminal Code section 217A |
| Prostitution Act 2000 | | | |
| s. 16 | Causing, permitting or seeking to induce a child to act as a prostitute | | |
| s. 17 | Obtaining payment for prostitution by a child | | |
| s. 18 | Agreement for prostitution of a child | | |
| Road Traffic Act 1974 | | | |
| s. 59 | Dangerous driving causing death | | The offence is committed with intent to cause death |
| s. 59 | Dangerous driving causing grievous bodily harm | | The offence is committed with intent to cause grievous bodily harm to a child or a vulnerable person |
| Western Australian Marine Act 1982 | | | |
| s. 75B(1) | Navigation of vessel occasioning death while under influence of alcohol, a drug or alcohol and a drug | | The offence is committed with intent to cause death |
| s. 75B(2) | Dangerous navigation of vessel occasioning death | | The offence is committed with intent to cause death |
| s. 75BA(1) | Navigation of vessel occasioning grievous bodily harm while under influence of alcohol, a drug or alcohol and a drug | | The offence is committed with intent to cause grievous bodily harm to a child or a vulnerable person |
| s. 75BA(2) | Dangerous navigation of vessel occasioning grievous bodily harm | | The offence is committed with intent to cause grievous bodily harm to a child or a vulnerable person |
[Schedule 1 amended: No. 31 of 2023 s. 36(2) and (3).]
Schedule 2 — Class 2 offences
[s. 6(2)]
| Provision | Description of offence | | Condition |
| The Criminal Code | | | |
| s. 192 | | Procuring person to have unlawful carnal knowledge by threat, fraud or administering drug | The victim is a person other than a child or a vulnerable person |
| s. 204A | | Showing offensive material to child under 16 | The offensive material is child exploitation material as defined in The Criminal Code section 217A<br>The offence falls within the ambit of section 6(4) |
| s. 204B | | Using electronic communication to procure, or expose to indecent matter, child under 16 | The offence falls within the ambit of section 6(4) |
| s. 217 | | Involving child in child exploitation | The offence falls within the ambit of section 6(4) |
| s. 218 | | Producing child exploitation material | The offence falls within the ambit of section 6(4) |
| s. 219 | | Distributing child exploitation material | The offence falls within the ambit of section 6(4) |
| s. 220 | | Possession of child exploitation material | The offence falls within the ambit of section 6(4) |
| s. 221BD | | Distribution of intimate image | The image is of a child or a vulnerable person |
| s. 262 | | Failing to provide necessaries of life in breach of duty | The victim is a child or a vulnerable person, the offender is involved in the provision of care, support or services to the child or vulnerable person, and the care, support or services relate to the vulnerability of the child or the vulnerable person but are not care, support or services provided by a member of the family of the child or the vulnerable person as part of a normal familial care relationship |
| s. 263 | | Duty of head of family | |
| s. 280 | | Manslaughter | |
| s. 281 | | Unlawful assault causing death | |
| s. 284(3)(c) | | Culpable driving (not of motor vehicle or vessel) causing death | The offence causes death but without intent to cause death |
| s. 284(3)(d) | | Culpable driving (not of a motor vehicle or vessel) causing grievous bodily harm | The offence causes grievous bodily harm but without intent to cause harm to a child or a vulnerable person |
| s. 288 | | Procuring, counselling or aiding another to commit suicide | |
| s. 290 | | Preventing birth of live child | |
| s. 292 | | Disabling in order to commit indictable offence | |
| s. 293 | | Stupefying in order to commit indictable offence | The victim is a person other than a child or a vulnerable person |
| s. 294 | | Act intended to cause grievous bodily harm or prevent arrest | The victim is a person other than a child or a vulnerable person |
| s. 297 | | Grievous bodily harm | |
| s. 298 | | Suffocation and strangulation | |
| s. 300 | | Persistent family violence | One or more of the prescribed offences applying under The Criminal Code section 299 are offences listed in Schedule 1 or this Schedule and the victim is a child or a vulnerable person |
| s. 301 | | Wounding and similar acts | |
| s. 305 | | Setting dangerous thing | The intended victim is a person other than a child or a vulnerable person |
| s. 306(2) | | Female genital mutilation | The victim is a person other than a child or a vulnerable person |
| s. 317A(b) | | Assault with intent to do grievous bodily harm | The victim is a person other than a child or a vulnerable person |
| s. 321 | | Sexual offences against child of or over 13 and under 16 | The offence falls within the ambit of section 6(4) |
| s. 321A | | Persistent sexual conduct with child under 16 | The offence falls within the ambit of section 6(4) |
| s. 323 | | Indecent assault | The victim is a person other than a child or a vulnerable person<br>or<br>The offence falls within the ambit of section 6(4) |
| s. 324 | | Aggravated indecent assault | The victim is a person other than a child or a vulnerable person<br>or<br>The offence falls within the ambit of section 6(4) |
| s. 325 | | Sexual penetration without consent | The victim is a person other than a child or a vulnerable person<br>or<br>The offence falls within the ambit of section 6(4) |
| s. 326 | | Aggravated sexual penetration without consent | The victim is a person other than a child or a vulnerable person<br>or<br>The offence falls within the ambit of section 6(4) |
| s. 327 | | Sexual coercion | The victim is a person other than a child or a vulnerable person |
| s. 328 | | Aggravated sexual coercion | The victim is a person other than a child or a vulnerable person |
| s. 329(7) | | Sexually penetrating a person who the offender knows is his or her lineal relative | The victim is a person other than a vulnerable person |
| s. 329(8) | | Consenting to be penetrated by a person who the offender knows to be his or her lineal relative | |
| s. 331B | | Sexual servitude | The victim is a person other than a child or a vulnerable person |
| s. 331C | | Conducting business involving sexual servitude | The victim is a person other than a child or a vulnerable person |
| s. 331D | | Deceptive recruiting for commercial sexual service | The victim is a person other than a child or a vulnerable person |
| s. 332 | | Kidnapping | The victim is a person other than a child or a vulnerable person<br>or<br>The victim is a child and the offender is a family member of the child |
| s. 343 | | Child stealing | The offence is committed by a family member of the child |
| s. 380 | | Concealing a will | A beneficiary of the testamentary instrument is a child or a vulnerable person |
| s. 381 | | Concealing a document that is evidence of title to any land or estate in land | A person with an interest in the land is a child or a vulnerable person |
| s. 409 | | Fraud | The victim is a child or a vulnerable person |
| s. 473 | | Forgery and uttering | The victim is a child or a vulnerable person |
| s. 510 | | Personation | The victim is a child or a vulnerable person |
| s. 511 | | Personating owner of shares | The victim is a child or a vulnerable person |
| | | | |
| Animal Welfare Act 2002 | | | |
| s. 19 | Cruelty to animals | | This item does not apply if the CEO is satisfied that the offence did not involve serious cruelty to an animal |
| Children and Community Services Act 2004 | | | |
| s. 101 | Failing to protect child from harm | | |
| s. 102 | Leaving child unsupervised in vehicle | | |
| Classification (Publications, Films and Computer Games) Enforcement Act 1996 | | | |
| s. 59(5) | Possessing or copying an indecent or obscene article | | The article is child exploitation material as defined in The Criminal Code section 217A<br>The offence falls within the ambit of section 6(4) |
| Disability Services Act 1993 | | | |
| s. 53 | Offence of ill‑treatment | | The victim is a child or a vulnerable person, the offender is involved in the provision of care, support or services to the child or the vulnerable person, and the care, support or services relate to the vulnerability of the child or the vulnerable person but are not care, support or services provided by a member of the family of the child or the vulnerable person as part of a normal familial care relationship |
| Misuse of Drugs Act 1981 | | | |
| s. 6(1)(a) or (c) | Offence concerned with prohibited drugs | | The sale or supply was to, or intended to be to, a child or a vulnerable person |
| s. 6(1)(b) | Offence concerned with prohibited drugs | | The act constituting the offence endangered the life, health or safety of a child under the age of 16 years or of a vulnerable person |
| s. 7(1)(a) | Offences concerned with prohibited plants or drugs generally | | The act constituting the offence endangered the life, health or safety of a child under the age of 16 years or of a vulnerable person |
| s. 7(1)(b) | Offences concerned with prohibited plants generally | | The sale or supply was to, or intended to be to, a child or a vulnerable person |
| s. 7(2) | Offences concerned with prohibited plants generally | | The act constituting the offence endangered the life, health or safety of a child under the age of 16 years or of a vulnerable person |
| s. 7B(4) | Selling drug paraphernalia to a child | | |
| s. 8Q(1) | Manufacturing a psychoactive substance | | The act constituting the offence endangered the life, health or safety of a child under the age of 16 years or of a vulnerable person |
| s. 8Q(2) | Sale or supply of psychoactive substance | | The sale or supply was to a child or a vulnerable person |
| s. 15 | Sale or supply of category 1 item | | The sale or supply was to a child or a vulnerable person |
| s. 17 | Sale or supply of category 2 item | | The sale or supply was to a child or a vulnerable person |
| Road Traffic Act 1974 | | | |
| s. 59 | Dangerous driving causing death | | The offence causes death but without intent to do so |
| s. 59 | Dangerous driving causing grievous bodily harm | | The offence causes grievous bodily harm but without intent to cause grievous bodily harm to a child or a vulnerable person |
| Western Australian Marine Act 1982 | | | |
| s. 75B(1) | Navigation of vessel occasioning death while under influence of alcohol, a drug or alcohol and a drug | | The offence causes death but without intent to do so |
| s. 75B(2) | Dangerous navigation of vessel occasioning death | | The offence causes death but without intent to do so |
| s. 75BA(1) | Navigation of vessel occasioning grievous bodily harm while under influence of alcohol, a drug or alcohol and a drug | | The offence causes grievous bodily harm but without intent to cause grievous bodily harm to a child or a vulnerable person |
| s. 75BA(2) | Dangerous navigation of vessel occasioning grievous bodily harm | | The offence causes grievous bodily harm but without intent to cause grievous bodily harm to a child or a vulnerable person |
[Schedule 2 amended: No. 31 of 2023 s. 36(4) and (5).]
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Notes
This is a compilation of the National Disability Insurance Scheme (Worker Screening) Act 2020 and includes amendments made by other written laws. For provisions that have come into operation see the compilation table. For provisions that have not yet come into operation see the uncommenced provisions table.
Compilation table
| Short title | Number and year | Assent | Commencement |
| National Disability Insurance Scheme (Worker Screening) Act 2020 (other than s. 23) | 48 of 2020 | 9 Dec 2020 | Pt. 1: 9 Dec 2020 (see s. 2(1)(a)); Pt. 2 (other than s. 23), Pt. 3-7 and Sch. 1 and 2: 1 Feb 2021 (see s. 2(1)(b) and SL 2021/4 cl. 2) |
| Working with Children (Criminal Record Checking) Amendment Act 2022 Pt. 3 Div. 1 | 47 of 2022 | 7 Dec 2022 | 1 Jul 2023 (see s. 2(b) and SL 2023/90 cl. 2) |
| Criminal Law (Mental Impairment) Act 2023 Pt. 15 Div. 21 and s. 412 | 10 of 2023 | 13 Apr 2023 | 1 Sep 2024 (see s. 2(b) and SL 2024/175 cl. 2) |
| Western Australian Marine Amendment Act 2023 s. 36 | 31 of 2023 | 11 Dec 2023 | 21 Dec 2023 (see s. 2(c) and SL 2023/202 cl. 2(a)) |
Uncommenced provisions table
To view the text of the uncommenced provisions see Acts as passed on the WA Legislation website.
| Short title | Number and year | Assent | Commencement |
| National Disability Insurance Scheme (Worker Screening) Act 2020 (s. 23) | 48 of 2020 | 9 Dec 2020 | To be proclaimed (see s. 2(1)(b)) |
| Evidence Act 2025 s. 492(1) | 15 of 2025 | 25 Sep 2025 | To be proclaimed (see s. 2(e)) |
Defined terms
[This is a list of terms defined and the provisions where they are defined. The list is not part of the law.]
Defined term Provision(s)
Aboriginal child 5(1)
adult 5(1)
another jurisdiction 5(1)
applicant 45, 50
approved 5(1)
assent day 2(1)
authorised officer 5(1)
authorised person 5(1)
CEO 5(1)
CEO (Justice) 5(1)
charge 5(1)
chief executive officer 79(1)
child 5(1)
Class 1 offence 5(1), 6(1)
Class 2 offence 5(1), 6(2)
Class 3 offence 5(1)
clearance 5(1)
clearance history 5(3)
Commissioner of Police 5(1)
contact 5(1)
conviction 5(1), 7(1), (2) and(4)
corresponding law 5(1)
court 5(1)
criminal record 5(1)
criminal record check 5(1)
criminal records agency 5(1)
Department 5(1)
designated decision 45
designated person 5(1)
disqualified person 5(1), 8(1)
DPP 5(1)
engage 5(1)
entry warrant 52, 64(1)
exclusion 5(1)
family member 5(1)
government agency 5(1)
harm 5(1)
health professional 5(1)
interstate screening agency 5(1)
investigation 52
key personnel 5(1)
law 72(1)
magistrate 52
National Disability Insurance Scheme 5(1)
NDIS Act 5(1)
NDIS Commission 5(1)
NDIS employer 5(1)
NDIS purpose 5(1)
NDIS work 5(1)
NDIS worker check clearance 5(1)
NDIS worker check clearance certificate 5(1)
NDIS worker check exclusion certificate 5(1)
non‑conviction charge 5(1)
notifiable person 5(1)
officer 5(1)
pending charge 5(1)
prescribed authority 36(1), 41(1), 44(1), 79(1)
prescribed report 39(1)
presumptively disqualified person 5(1), 8(2)
public authority 5(1)
public sector employee 78(1)
publication day 82(1)
record 52
relevant information 5(1)
relevant law 5(1)
relevant official 35(1)
relevant record 52
relevant risk of harm 5(1)
reviewable decision 50
risk assessed role 5(1)
risk assessment 5(1), 17(1)
serve 70(1)
specified 82(1)
Torres Strait Islander child 5(1)
transitional matter 82(1)
transitional regulations 82(1)
unacceptable risk 5(1)
vulnerable person 5(1)
This work is licensed under a Creative Commons Attribution 4.0 International Licence (CC BY 4.0). To view relevant information and for a link to a copy of the licence, visit www.legislation.wa.gov.au.
Attribute work as: © State of Western Australia 2025.
By Authority: GEOFF O. LAWN, Government Printer