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2016-2017-2018-2019
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(WORKER SCREENING DATABASE) BILL 2019
EXPLANATORY MEMORANDUM
(Circulated by the authority of the
Minister for Families and Social Services, the Hon Paul Fletcher MP)
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(WORKER SCREENING DATABASE) BILL 2019
OUTLINE
The National Disability Insurance Scheme Amendment (Worker Screening
Database) Bill 2019 (Bill) amends the National Disability Insurance Scheme Act
2013 (Act) to establish a database for nationally consistent worker screening, for the
purpose of minimising the risk of harm to people with disability from those who work
closely with them.
Schedule 1 - Amendments
In February 2017, the Council of Australian Governments' (COAG)
Disability Reform Council released the National Disability Insurance Scheme (NDIS)
Quality and Safeguarding Framework (Framework), setting out a new national
approach to regulation for the NDIS. A nationally recognised approach to worker
screening is a core element of the Framework.
An approach for nationally consistent worker screening was agreed with States and
Territories in the Intergovernmental Agreement on Nationally Consistent Worker
Screening for the NDIS (Intergovernmental Agreement). Under the
Intergovernmental Agreement, States and Territories remain responsible for
conducting NDIS worker screening checks, including the application process and risk
assessment. A centralised database is to be hosted and administered by the
NDIS Quality and Safeguards Commissioner (Commissioner), assisted by the
NDIS Quality and Safeguards Commission (Commission), to provide and maintain
current and accurate information relating to these checks. The database will be
accessible to persons or bodies for the purposes of the NDIS.
The Act currently provides for the screening of workers through the registration
requirements for registered NDIS providers and the National Disability Insurance
Scheme (Practice Standards - Worker Screening) Rules 2018 (Worker Screening
Rules).
Schedule 1 amends the Act to provide for the creation and ongoing management of
the database by the Commissioner. The collection, use and disclosure of
information for the purposes of the database will be managed through pre-existing
information provisions at Chapter 4 of the Act.
Financial impact statement
MEASURE FINANCIAL IMPACT OVER THE FORWARD
ESTIMATES
Worker Screening Database $13.6 million
The measures in this Bill are part of a 2017-18 Mid-Year Economic and Fiscal
Outlook (MYEFO) measure. The total costs of developing and maintaining the
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database is $13.6 million over the forward estimates, of which the States and
Territories are expected to contribute $6.8 million.
REGULATION IMPACT STATEMENT
Nationally consistent NDIS worker screening was considered as part of the NDIS
Quality and Safeguarding Regulation Impact Statement (OBPR ID 16842) which was
published on 6 March 2017.
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
The statement of compatibility with human rights appears at the end of this
explanatory memorandum.
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NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT
(WORKER SREENING DATABASE) BILL 2019
NOTES ON CLAUSES
Abbreviations and Acronyms used in this explanatory memorandum
Act means the National Disability Insurance Scheme Act 2013;
Commission means the NDIS Quality and Safeguards Commission, as
defined in section 9 of the Act;
Commissioner means the Commissioner of the NDIS Quality and
Safeguards Commission, as defined in section 9 of the Act;
database means the NDIS worker screening database;
NDIS means the National Disability Insurance Scheme, as defined in
section 9 of the Act.
Clause 1 sets out how the new Act is to be cited - that is, as the National Disability
Insurance Scheme Amendment (Worker Screening Database) Act 2019.
Clause 2 provides a table setting out the commencement dates of the various
sections in, and Schedules to, the new Act.
Clause 3 provides that each Act that is specified in a Schedule is amended or
repealed as set out in that Schedule, and any other item in a Schedule to the Bill has
effect according to its terms.
1
Schedule 1 - Amendments
Summary
Schedule 1 amends the National Disability Insurance Scheme Act 2013 (Act) to
establish a database for nationally consistent worker screening, for the purpose of
minimising the risk of harm to people with disability from those who work closely with
them.
Background
In February 2017, the Council of Australian Governments' (COAG)
Disability Reform Council released the National Disability Insurance Scheme (NDIS)
Quality and Safeguarding Framework (Framework), setting out a new national
approach to regulation for the NDIS. A nationally recognised approach to worker
screening is a core element of the Framework.
An approach for nationally consistent worker screening was agreed with States and
Territories in the Intergovernmental Agreement on Nationally Consistent Worker
Screening for the NDIS (Intergovernmental Agreement). Under the
Intergovernmental Agreement, States and Territories remain responsible for
conducting NDIS worker screening checks, including the application process and risk
assessment. A centralised database is to be hosted and administered by the
Commissioner of the NDIS Quality and Safeguards Commission (Commissioner),
assisted by the NDIS Quality and Safeguards Commission (Commission), to
provide and maintain current and accurate information relating to these checks. The
database will be accessible to persons or bodies for the purposes of the NDIS.
The Act currently provides for the screening of workers of registered NDIS providers,
through the registration requirements in sections 73B, 73E, 73F, 73J and 73T. The
National Disability Insurance Scheme (Practice Standards - Worker Screening)
Rules 2018 (Worker Screening Rules) provide for worker screening requirements
that form part of the NDIS Practice Standards. Compliance with the NDIS Practice
Standards (defined at section 73T of the Act) is a condition of registration under
section 73F. The Worker Screening Rules require that workers engaged in certain
work must have a clearance under the NDIS worker screening legislation of a State
or Territory.
Schedule 1 amends the Act to provide for the creation and ongoing management of
the database by the Commissioner. The collection, use and disclosure of
information for the purposes of the database will be managed through pre-existing
information provisions at Chapter 4 of the Act.
The amendments made by this Schedule commence on 1 July 2019.
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Explanation of the changes
Item 1 amends the simplified outline of the Act at section 8 to provide for an
additional function of the Commissioner in establishing, operating and maintaining
the database outlined in new Chapter 6B. The Commissioner is required to perform
this function.
Item 2 inserts a definition at section 9 for the following terms:
disclose includes provide electronic access to the information. This definition
extends the ordinary meaning of the term disclose, only in relation to
disclosure of information in the database. This definition reflects the process
of disclosure contemplated, in which a person or body will log on to the
database to access certain information;
NDIS worker screening check, means the assessment under State or
Territory NDIS worker screening law of whether a person, in working or
seeking to work with people with disability, poses a risk to such people;
NDIS worker screening database means the database established under
new section 181Y; and
NDIS worker screening law means a law of a State or Territory determined
under new subsection 10B(1) in a legislative instrument made by the Minister.
Item 3 inserts new section 10B. This provides for the Minister to make a
determination, via legislative instrument, that a law of a State or Territory is a 'NDIS
worker screening law' for the purposes of the definition of that term in section 9. It is
intended, that via new section 10B, laws establishing a scheme for the screening of
workers in connection with the NDIS can be specified as NDIS worker screening
laws as they are made or amended by each State and Territory. A law will only be
an NDIS worker screening law once it has been specified in a determination by the
Minister under section 10B.
In order to make a determination under new section 10B, the Minister must have the
agreement of the State or Territory which has passed the law being specified. The
Minister is also limited in this determination, to only specifying laws that, to the
Minister's satisfaction, establish a scheme for the screening of workers for purposes
including the NDIS.
A legislative note at subsection 10B(1) provides that a legislative instrument made
under new section 10B is not subject to disallowance by way of subsection 44(1) of
the Legislation Act 2003. This recognises that it is undesirable for Parliament to
disallow instruments that have been made for the purposes of a multi-jurisdictional
body or scheme, as disallowance would affect jurisdictions other than the
Commonwealth. If a determination under new section 10B is disallowed, the
Commission would be stifled in its ability to perform this function, or be unable to
perform it at all.
The power of the Minister to make a determination under new section 10B cannot be
delegated.
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Item 4 inserts new Chapter 6B requiring the Commissioner to establish, operate and
maintain the NDIS worker screening database, and outlining its purpose and
expected content.
New section 181X contains a simplified outline of new Chapter 6B.
New section 181Y establishes the worker screening database, outlines its purposes
and the information it may contain.
New subsection 181Y(1) establishes a new function of the Commissioner, to
establish, operate and maintain the NDIS worker screening database. The
Commissioner must perform this function.
As this confers a function on the Commissioner, section 55A of the Act allows the
Commissioner to collect information for inclusion in the database. Accordingly, a
failure to provide such information may be subject to a penalty under
subsection 57(1) of the Act. In practice, it is expected that the majority of information
to be included in the database will be volunteered to the Commissioner, within
applicable limitations in State and Territory legislation, without requiring the issuing
of a notice under section 55A. However, it remains open to the Commissioner to
invoke section 55A when appropriate.
It is also intended that, by conferring a new function on the Commissioner,
sections 67A and 67E, as appropriate, may be used to record, disclose or use
information contained on the database as permitted by those sections, including
disclosure to various persons and bodies as permitted by those provisions.
New subsection 181Y(2) specifies that the database must be kept in electronic form.
It is intended that the database will be held online.
Purposes of the database
New subsection 181Y(3) outlines the purposes of the database. The database is
intended to be a centralised repository of information about persons who have had
decisions made about them, or who have applied to have decisions made about
them, under NDIS worker screening law. It is intended to be current and up to date,
reflecting an accurate picture of whether a person, in working or seeking to work with
people with disability, does or does not pose a risk to such people.
As a necessary precursor to these purposes, another purpose of the database is to
share information for the purposes of the NDIS to ensure that the database is current
and accurate. It is intended that information in the database may be shared with the
following parties at varying levels of detail:
State and Territory worker screening units conducting worker screening
checks;
registered NDIS providers and their subcontractors;
the National Disability Insurance Agency and its contractors;
persons and bodies providing services under Chapter 2 of the Act;
NDIS providers who are not registered, and their subcontractors;
self-managed participants and plan nominees;
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the NDIS Quality and Safeguards Commission; and
the Department of Social Services.
Paragraph 181Y(3)(d) provides that additional purposes of the database may be
determined in an instrument under subsection 181Y(8).
Paragraphs 181Y(3)(a) to (c) describe purposes of the database as inherently linked
and limited to the purposes of the NDIS. Allowing for a determination to be made for
the purposes of paragraph 181Y(3)(d) will enable the purposes of the database to be
broadened to include maintenance of records and the sharing of information with
regard to Continuity-of-Support, in-kind supports and other arrangements not
currently contemplated by Chapters 2 and 3 of the Act. Flexibility in determining
additional purposes is necessary as the State and Territory legislation supporting the
worker screening arrangements has not yet been implemented. As this Bill is
implementing new government policy, flexibility here may also allow for adjustments
to be made as the legislation begins to be used. An instrument made under
subsection 181Y(8) is subject to disallowance. Any additional purposes will
necessarily be limited by the Commissioner's information collection, use and
disclosure powers under sections 55A, 67A and 67E of the Act.
New subsection 181Y(4) ensures that the purposes of the database as described in
paragraphs 181Y(3)(a) to (c) do not unnecessarily limit those subjects on which a
determination may be made under paragraph 181Y(3)(d) to being for NDIS
purposes.
Information in the database
New subsection 181Y(5) outlines the information which may be included on the
database, for the purposes outlined under subsection 181Y(3).
paragraph 181Y(5)(a) provides that the database may contain information
about a person who has applied for a worker screening check, and
information relating to that application. This may include but is not limited to:
personal information about the person, the date their application was made
and the State or Territory in which their application was made.
paragraph 181Y(5)(b) provides that the database may contain information
about a person who has applied for a worker screening check whose
application is no longer being considered, and the reasons for this. This may
include but is not limited to: personal information about the person, the date
from which their application is no longer being considered, and information to
the effect that the applicant has withdrawn the application or the State or
Territory worker screening unit has closed the application.
paragraph 181Y(5)(c) provides that the database may contain information
about a person who has been cleared to work with people with disability, and
information relating to a decision to that effect (a clearance decision,
however described). It is intended that this paragraph cover all decisions to
the effect that a person has been cleared to work with people with disability,
however this may be described, under an NDIS worker screening law at any
point in time. One such way this may be described, is that the person does
not pose a risk in working or seeking to work with people with disability. This
may include but is not limited to personal information about the person.
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Information relating to the decision may include but is not limited to: who
made the decision, the date it was made, the place it was made, the reasons
for that decision, and the time period during which the decision remains in
force.
paragraph 181Y(5)(d) provides that the database may contain information
about any interim decision made under NDIS worker screening law whilst a
person's application is still being considered. This may, for example, be a
decision that a person is prevented from working with people with disability
while their application is pending. It is anticipated that a new decision
(including another interim decision) may replace the initial interim decision
once the application is determined.
paragraph 181Y(5)(e) provides that the database may contain information
about a person who is prevented from working with people with disability, and
information relating to a decision to that effect (an exclusion decision,
however described). It is intended that this paragraph cover all decisions to
the effect that a person has not been cleared to work with people with
disability, however this may be described, within NDIS worker screening law
at any point in time. One such way this may be described, is that the person
does pose a risk in working or seeking to work with people with disability. This
may include but is not limited to personal information about the person.
Information relating to the decision may include but is not limited to: who
made the decision, the date it was made, the place it was made, the reasons
for that decision and the time period during which the decision remains in
force.
paragraph 181Y(5)(f) provides that the database may contain information
about how long a clearance decision or an exclusion decision, however
described, is in force.
paragraph 181Y(5)(g) provides that the database may contain information
about a person who, although previously cleared to work with people with
disability (via a decision described in paragraph 181Y(5)(c)), has now had that
decision suspended. The database may also include information about a
suspension decision. This may include but is not limited to: who decided to
suspend the clearance, the date that decision was made, the place it was
made, and the time period during which the suspension remains or remained
in force.
paragraph 181Y(5)(h) provides that the database may contain information
about a person who, although previously cleared to work with people with
disability (via a decision described in paragraph 181Y(5)(c)), has now had that
decision revoked. It also provides that the database may contain information
about a person who, although previously prevented from working with people
with disability (via a decision described in paragraph 181Y(5)(e)), has now
had that decision revoked. The database may also include information about
a revocation decision. This may include but is not limited to: who decided to
revoke the clearance decision or exclusion decision, the date that decision
was made, the place it was made, and the time period during which the
revocation remains in force.
paragraph 181Y(5)(i) provides that the database may contain information
about employers or potential employers who may hire persons who have
made screening applications. The term 'employers' used in this paragraph is
intended to include self-managed participants who may hire their own
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workers. This may include information about the person's potential, current
and previous employers, including contact details, period of employment, a
description of the role the person was employed in and the period of time they
were in that role.
paragraph 181Y(5)(j) enables the Minister to determine additional information
to be contained within the database by way of legislative instrument under
subsection 181Y(8). An example of additional determined content of the
database may be a new type of decision contemplated by NDIS worker
screening law not already covered by subsection 181Y(5). Flexibility in this
area will benefit the overall database as States and Territories are yet to
implement their NDIS worker screening laws. Additional content to be
determined is necessarily limited by the Commissioner's functions and the
provisions relating to the collection, use and disclosure of information under
the Act.
The database is expected to include information about pending, current and previous
decisions made under State and or Territory NDIS worker screening law.
Subsection 181Y(6) indicates that the range of information that may be contained on
the database is intended to be broad and is not limited by the types of information
and examples already discussed. The range of information that may be contained
on the database is however limited to information necessary for the performance of
the Commissioner's function in establishing and maintaining the database, and the
purposes of the database as outlined in subsection 181Y(3). It will also be limited by
the Commissioner's information collection, use and disclosure powers under the Act.
Database may include personal information
Subsection 181Y(7) further informs subsection 181Y(5) by indicating that the
information described in that subsection may also include personal information. By
implication, the database may also contain sensitive information, which is a subset of
personal information within the meaning of those expressions in the
Privacy Act 1988.
Examples of personal information which may be contained in the database include
information relating to the identity of persons who have made an application or had a
decision about them made under an NDIS worker screening law. This may include:
name, date of birth, age, place of birth, address, telephone number, email address
and other contact details, employment details, education, Government issued
identification numbers and expiry dates as well as a worker screening number
allocated to that person. Examples of sensitive information which may be contained
in the database include information relating to disability status, Aboriginal and Torres
Strait Islander status and cultural and linguistic diversity status. This sensitive
information is to be used for policy development, evaluation and research purposes.
It is intended that decision information, as obtained from a State or Territory worker
screening unit, will only relate to the outcome or result of the decision. The database
will not contain information about a person's criminal history, including convictions
and charges and any other information relied on to support a decision that is made
under NDIS worker screening law. It will also not contain information about a
person's sexual identity or preferences.
7
This information is intended to promote the accuracy, integrity and effectiveness of
the database by ensuring that the information about decisions made under NDIS
worker screening law relate to the correct person. It will also assist employers in
verifying the employment of a person who has made an application and considering
a person's suitability for employment.
Legislative instrument
Subsection 181Y(8) provides for the Minister to specify additional purposes of the
database, and additional information to be contained within the database, by
disallowable legislative instrument. The determination of additional purposes and
further information to be included in the database has been provided for by way of
secondary legislation in order to provide for flexibility without the need to amend the
Act. Flexibility is necessary as State and Territory NDIS worker screening laws have
not yet been implemented. As this is a new function for the Commissioner, minor
adjustments may also be required as the law continues to be tested.
Database not a legislative instrument
Subsection 181Y(9) outlines that the NDIS worker screening database is not a
legislative instrument within the meaning of that expression at subsection 8(1) of the
Legislation Act 2003. This provision is included to assist readers.
Item 5 inserts new subsection 201A(1A) that allows the Minister to delegate, in
writing, the power under proposed new subsection 181Y(8) to the Commissioner.
The powers set out by proposed subsection 181Y(8) allow the Minister to make an
instrument that determines a purpose for the database, and determines additional
information that the database may include. This delegation is limited in scope by the
functions and powers of the Commissioner in the Act. It is appropriate for the
Commissioner to have the powers set out in subsection 181Y(8) as hosting,
administering and maintaining the database is a function of the Commission.
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Statement of compatibility with human rights
STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011
NATIONAL DISABILITY INSURANCE SCHEME AMENDMENT (WORKER
SCREENING DATABASE) BILL 2019
This Bill is compatible with the human rights and freedoms recognised or declared in
the international instruments listed in section 3 of the
Human Rights (Parliamentary Scrutiny) Act 2011.
Overview of the Bill
The National Disability Insurance Scheme Amendment (Worker Screening
Database) Bill 2019 (Bill) amends the National Disability Insurance Scheme Act
2013 (Act) to establish a database for nationally consistent worker screening, for the
purpose of minimising the risk of harm to people with disability from those who work
closely with them.
In February 2017, the Council of Australian Governments' (COAG)
Disability Reform Council released the National Disability Insurance Scheme (NDIS)
Quality and Safeguarding Framework (Framework), setting out a new national
approach to regulation for the NDIS. A nationally recognised approach to worker
screening is a core element of the Framework.
An approach for nationally consistent worker screening was agreed with States and
Territories in the Intergovernmental Agreement on Nationally Consistent Worker
Screening for the NDIS (Intergovernmental Agreement). Under the
Intergovernmental Agreement, States and Territories remain responsible for
conducting NDIS worker screening checks, including the application process and risk
assessment. A centralised database is to be hosted and administered by the
NDIS Quality and Safeguards Commissioner (Commissioner), assisted by the
NDIS Quality and Safeguards Commission (Commission), to provide and maintain
current and accurate information relating to these checks. The database will be
accessible to persons or bodies for the purposes of the NDIS.
The Act currently provides for the screening of workers through the registration
requirements for registered NDIS providers and the National Disability Insurance
Scheme (Practice Standards - Worker Screening) Rules 2018 (Worker Screening
Rules).
Schedule 1 amends the Act to provide for the creation and ongoing management of
the database by the Commissioner. The collection, use and disclosure of
information for the purposes of the database will be managed through pre-existing
information provisions at Chapter 4 of the Act.
Human rights implications
9
Statement of compatibility with human rights
The Bill engages the following rights under international human rights law:
the rights of people with disabilities, especially Article 16 of the Convention on the
Rights of Persons with Disabilities (CRPD);
the right to work (Article 6) of the International Covenant on Economic, Social and
Cultural Rights (ICESCR); and
the right to privacy in Article 17 of the International Covenant on Civil and Political
Rights (ICCPR).
Rights of people with disability - Article 16 of the CRPD
Article 16 of the CRPD requires that States Parties take measures to protect persons
with disabilities from all forms of exploitation, violence and abuse. The Bill promotes
the rights of persons with disability to be free from exploitation, violence and abuse,
consistent with Australia's obligations by ensuring that the supports and services
provided through the NDIS are delivered by a suitable workforce.
The Bill supports a nationally consistent approach to worker screening, with the aim
of minimising the risk of harm to people with disability from the people who work
closely with them. A nationally consistent and recognised worker screening regime
promotes the rights of people with disability by:
sending a strong signal to the community as a whole about the priority placed on
the rights of people with disability to be safe and protected;
reducing the potential for providers to employ workers who pose an unacceptable
risk of harm to people with disability;
prohibiting those persons who have a history of harm against people with
disability from having more than incidental contact with people with disability
when working for a registered NDIS provider; and
deterring individuals who pose an unacceptable risk of harm from seeking work in
the sector.
This recognises that some NDIS participants are amongst the most vulnerable
people in the community and that people with disability have the right to be protected
from exploitation, violence and abuse.
The objective of the Bill is to ensure that there is a national repository of decisions
made under State and Territory worker screening laws on whether persons who
work, or seek to work, with people with disability pose a risk to such people, and to
enable this information to be accessible to all States and Territories, and to
employers (including self-managed participants) engaging workers in the NDIS.
It will ensure that there is visibility of workers' screening outcomes across all States
and Territories, and that a worker who has been excluded by one State or Territory is
excluded nationally. A national worker screening database eliminates the
10
Statement of compatibility with human rights
opportunity for people to make multiple attempts in different jurisdictions at gaining a
worker screening clearance.
The Act currently provides for the screening of employees of registered NDIS
providers through the registration requirements in sections 73B, 73E, 73F, 73J and
73T of the Act. The National Disability Insurance Scheme (Practice Standards -
Worker Screening) Rules 2018 set out the Practice Standards that apply to all
registered NDIS providers in relation to the screening of their workers and other
personnel, including the requirement to only allow workers to engage in certain roles
if they hold a clearance. The worker screening database will also support NDIS
providers in their responsibility to provide a safe environment for people with
disability by providing access to accurate and current information about the worker
screening outcome of people they have engaged or intend to engage in the NDIS.
The Bill promotes the rights of persons with disability consistent with Australia's
obligations by ensuring that the paramount consideration of NDIS worker screening
is the right of people with disability to live free from abuse, violence, neglect and
exploitation.
Right to work - Article 6 of the ICESCR
Article 6 of the ICESCR recognises the right to work and 'includes the right of
everyone to the opportunity to gain his living by work which he freely chooses or
accepts'. This right applies to workers who work with people with disability,
including NDIS participants.
The paramount objective of this Bill is to protect people with disability from
experiencing harm arising as a result of unsafe supports or services provided under
the NDIS.
Consistent with this objective, worker screening has been introduced for roles with
registered NDIS providers that have been identified as requiring particular mitigation
of the risk of harm to people with disability. Worker screening obligations are not
imposed in relation to other roles; however, it will remain open to employers,
including self-managed participants, to require worker screening for any worker that
they engage in the delivery of NDIS supports and services. This reflects a targeted,
measured approach to the risk.
Criminal history checks and other forms of pre-employment screening are conducted
as a matter of routine for a range of occupations to allow employers to make
recruitment decisions which support a safe and secure workplace for workers and
people with disability.
However, governments recognise that some individuals, by virtue of their history,
have valuable lived experiences to share with people with disability accessing NDIS
supports and services. It is recognised that people with lived experience who have
committed an offence or misconduct in the past can make significant changes in
their lives.
The Commission will work with State and Territory governments to put in place a
nationally consistent, risk-based decision-making framework for considering a
11
Statement of compatibility with human rights
person's criminal history and patterns of behaviour over time to guard against the
unreasonable exclusion of people who have committed an offence or misconduct
from working in the disability sector, where this is not relevant to their potential future
risk to people with disability.
Under the national policy for NDIS worker screening, States and Territories will
provide certain review and appeal rights to individual workers who may be subject to
an adverse decision. Individuals can seek a review of an adverse decision,
consistent with the principles of natural justice and procedural fairness. Where there
is an intention to make an adverse decision, States and Territories will disclose
reasons for this (except where NDIS worker screening units are required under
Commonwealth, State or Territory law to refuse to disclose the information), allow
the individual a reasonable opportunity to be heard, and consider the individual's
response before finalising the decision.
The Bill supports a proportionate approach to safeguards that does not unduly
prevent a person from choosing to work in the NDIS market, but ensures the risk of
harm to people with disability is minimised, by excluding workers whose behavioural
history indicates they pose a risk in the provision of certain services and supports.
Right to privacy - Article 17 of the ICCPR
Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or
unlawful interference with their privacy. The right to privacy includes respect for
informational privacy, including in respect of storing, using and sharing private
information and the right to control the dissemination of private information. For
interference with privacy not to be arbitrary, it must be in accordance with the
provisions, aims and objectives of the ICCPR and should be reasonable in the
particular circumstances. Reasonableness in this context incorporates notions of
proportionality to the end sought and necessity in the circumstances.
The NDIS worker screening database is expected to hold information about the
identity of persons who have made an application for an NDIS worker screening
check, and any pending, current and previous decisions made by the State and or
Territory NDIS worker screening unit in relation to that application. This is consistent
with the objective to ensure that information about whether a person who works, or
seeks to work, with people with disability poses a risk to such people, is current,
accurate, and available to all States and Territories, and to employers engaging
workers in the NDIS.
The range of information that may be contained on the database is limited to
information necessary for the performance of the Commissioner's functions and for
the purposes of the database set out in the Bill. The database will not contain
information about a person's criminal history, including convictions and charges and
any other information relied on to support a decision that is made under NDIS worker
screening law, or information about a person's sexual identity or preferences.
The range of information that will be shared with persons or bodies will be
proportionate and necessary for the objective of minimising the risk of harm to
people with disability from the people that work with them.
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Statement of compatibility with human rights
States and Territories will have full access to the database as required to effectively
implement the national policy, including the ongoing monitoring of people who hold
clearances, and the identification of fraudulent or duplicate applications, such as
where a person has made multiple attempts to gain a worker screening clearance in
a different jurisdiction or under a different name.
By comparison, employers will have access to a limited subset of information on the
database. This is expected to include information about a worker's identity, so that
an employer can verify that the person who holds the clearance is the same person
that they have engaged or intend to engage. Employers will also have access to
information related to whether or not a person they have engaged is cleared to work
in certain roles. Employers will not have access to the details of a worker's other
employers, or sensitive information relating to a worker's disability status, Aboriginal
and Torres Strait Islander status or cultural and linguistic diversity status.
Any personal information stored on the database is 'protected Commission
information' under the Act, and will be handled in accordance with the limitations
placed on the use and disclosure of protected Commission information under the
Act, the Privacy Act 1988, and any other applicable Commonwealth, State or
Territory legislation. Information will be only dealt with where reasonably necessary
for the fulfilment of the Commissioner's lawful and legitimate functions, or as
otherwise permitted under section 67A of the Act. The penalty provisions in sections
67B to 67D of the Act will also apply to any unauthorised disclosure of information in
respect of the database. Further, consent to use, store and disclose personal
information will be obtained from any person applying for a worker screening check
as a part of the application process.
Conclusion
The Bill advances the protection of the rights of people with disability in Australia
consistent with the CRPD, particularly in relation to preventing exploitation, violence
and abuse in the disability sector. To the extent the Bill impinges on the human
rights of workers, these impositions are reasonable, necessary and proportionate to
achieving the protection of people with disability and confidence in the safety of the
NDIS market, thereby ensuring the long-term integrity and sustainability of the NDIS.
[Circulated by the authority of the Minister for Families and Social Services,
the Hon Paul Fletcher MP]
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