BILLS DIGEST NO. 90, 2017–18              21 March 2018

Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Bill 2018

Jonathan Mills
Law and Bills Digest Section 

Date introduced: 15 February 2018

House:  Representatives

Portfolio: Social Services

Commencement: Sections 1 to 3 on Royal Assent; Schedule 1 on Proclamation, or the day after six months from Royal Assent, whichever is sooner.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at March 2018.

Purpose of the Bill

The purpose of the Crimes Amendment (National Disability Insurance Scheme–Worker Screening) Bill 2018 (the Bill) is to amend the Crimes Act 1914 (the Act) to provide exclusions so that criminal history information can be disclosed and considered for the purposes of worker screening relating to work with persons with a disability in the National Disability Insurance Scheme (NDIS).

Structure of the Bill

This Bill has one Schedule that amends the Act to insert a new subdivision into Division 6 of Part VIIC of the Act relating to exclusions for the disclosure of certain information for the purposes of assessing a person’s suitability to work with people with disability.

Background

The framework for NDIS was established under the National Disability Insurance Scheme Act 2013 (NDIS Act), following the Council of Australian Governments (COAG) signing an Intergovernmental Agreement for the NDIS in December 2012.[1]

While the roll out of the NDIS across the states and territories has been continuing, evidence and concerns regarding violence, abuse and neglect against people with disability have prompted inquiries in Victoria and at a Commonwealth level. In particular the Senate Community Affairs References Committee reported on violence, abuse and neglect against people with disability in 2015[2] and made several recommendations relating to safeguards.[3]

In response to this, the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, to commence on 1 July 2018,[4] amends the NDIS Act to establish the NDIS Quality and Safeguard Commission (the Commission) as an independent statutory body with a range of regulatory functions. One of the core functions of Commissioner is the development and oversight of ‘the broad policy design for a nationally consistent framework relating to the screening of workers involved in the provision of supports and services to people with disability.’[5]

The Department of Social Services has provided the following update on the establishment of the Commission:

The Commission will implement the NDIS Quality and Safeguarding Framework which was released by the Council of Australian Governments Disability Reform Council in February 2017. The Framework will come into effect as each state and territory reaches full scheme NDIS. The Framework sets out a national system to support NDIS participants, carers and providers – upholding the standards that participants deserve, and ensuring clarity on the rights and responsibilities of participants, providers and their staff.

The Commission will be established in early 2018, and is expected to commence operations in each state and territory by 1 July, 2020. In New South Wales and South Australia, that happens from July 2018. Remaining states reach full scheme in July 2019, except Western Australia which is expected to reach full scheme in July 2020.[6]

While criminal history checks are already in place in some states and territories for NDIS workers,[7] the national worker screening check will operate under the COAG approved NDIS Quality and Safeguarding Framework and has been described by the government as being a ‘step forward from the existing fragmented arrangements operating in each state and territory’ and having the advantage of being ‘portable across jurisdictions’.[8]

The Minister for Social Services, Dan Teehan, announced in the second reading speech for the Bill that a nationally consistent worker screening check is being developed in cooperation with state and territory governments:

All Australian governments are working together to deliver a new NDIS Worker Screening Check.

The new check is intended to become available in New South Wales and South Australia from July 2018, in Victoria, Queensland, Tasmania, the Australian Capital Territory and the Northern Territory from July 2019, and in Western Australia from July 2020.[9]

The Minister also stated:

… governments have agreed that it is appropriate to consider a person's full criminal history, including spent, quashed and pardoned conviction information, to assess the risk they may pose in working with a person with disability in the NDIS.[10]

In order to assist in the consideration of a person’s full criminal history, the current Bill will provide exemptions allowing the sharing of information relating to pardons, quashed and spent convictions for Commonwealth, state or territory offences for the purposes of NDIS related worker screening checks.[11] This information would otherwise not need to be disclosed by the offender and would be unable to be disclosed or taken account of by others, under Part VIIC of the Act.

The provisions to be inserted into the Act substantially replicate exclusion provisions already in place in the Act dealing with the disclosure of information for working with children checks and the safeguards relating to those disclosures.[12] The working with children exemption provisions have been in the Act since 2010[13] and, in a mandatory review of the provisions in 2013 the Attorney-General’s Department stated:

… (t)he Attorney-General’s Department is satisfied that the disclosure of expanded criminal history information for Working With Children Checks is being used appropriately to assess the risk that individuals may pose and that screening agencies are adhering to safeguards in place to ensure the privacy and protection of information and individuals rights. Furthermore, clear processes are in place in order to address complaints should they arise.[14]

Committee consideration

Senate Standing Committee for Selection of Bills

At its meeting of 15 February 2018 the Senate Standing Committee for Selection of Bills deferred consideration of the Bill to its next meeting.[15]

Senate Standing Committee for the Scrutiny of Bills

The Committee has not commented on the Bill at the time of writing.

Policy position of non-government parties/independents

In Second Reading Debates in the House of Representatives the ALP supported the Bill and took the opportunity to call for a royal commission into violence and abuse against people with disability.[16]

Position of major interest groups

At the time of writing there had been no comment from stakeholders in relation to the Bill. It may be that this is due to the nature of the Bill as it relates solely to Commonwealth laws in order to facilitate state and territory action.

Financial implications

The Explanatory Memorandum states that the Bill will have no financial impact.[17]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[18]

Parliamentary Joint Committee on Human Rights

The Parliamentary Joint Committee on Human Rights had not commented on the Bill at the time of writing.

Key issues and provisions

Part VIIC of the Act currently includes Divisions 2 and 3 which restrict the communication and use of information relating to certain convictions.

Division 2 provides that a person pardoned for being wrongly convicted, or whose conviction has been quashed, is under no duty or requirement to disclose the charge or conviction.[19] Other persons are also prohibited from disclosing or taking account of the charge or conviction.[20]

Division 3 provides a similar right of non-disclosure and restrictions on others where a person’s conviction is spent.[21]

Schedule 1 of the Bill introduces a proposed Subdivision AA into Division 6 of Part VIIC of the Act containing exemptions from the restrictions of Divisions 2 and 3 for the purposes of worker screening checks for working with a person with disability.

As discussed in the Background section, the provisions to be inserted into the Act substantially replicate those exclusion provisions already in Subdivision A, Division 6 of Part VIIC of the Act dealing with the disclosure of information for working with children checks, and the safeguards relating to those disclosures.[22] The operative provisions largely replicate the existing Subdivision A by substituting the term ‘a person with disability’ for the term ‘children’.

Proposed section 85ZZGI inserts a new exclusion section in Division 6 that states that Divisions 2 and 3 do not apply in relation to the disclosure of information to a prescribed person or body if:

(a) the person or body is required or permitted by or under a prescribed Commonwealth law, a prescribed State law or a prescribed Territory law, to deal with information about persons who work, or seek to work, with a person with disability and

(b) the disclosure is required by or under a Commonwealth law, a State law or a Territory law.

Proposed section 85ZZGJ inserts the same exclusion as proposed section 85ZZGI except in relation to a prescribed person or body taking into account information.

Proposed section 85ZZGK allows for disclosure of information by a prescribed person or body where there is a statutory obligation to disclose and the person or body is required or permitted to use information about persons who work with a person with disability.

Proposed section 85ZZGL is a safeguard provision that requires that the Minister, before prescribing a person or body for the purposes of proposed sections 85ZZGI, 85ZZGJ or 85ZZGK, must be satisfied that person or body meets certain criteria including legal authority to deal with the information, compliance with privacy, human rights and records management laws, risk assessment frameworks and staff qualified to assess risks to the safety of a person with disability.

Proposed section 85ZZGM will insert two new definitions for use in the subdivision.

‘Work’ is defined broadly, in the same words as are used in relation to the working with children exclusions in section 85ZZGC of the Act.

‘Person with disability’ is defined as

‘(a)              a person who is a participant (within the meaning of the National Disability Insurance Scheme Act 2013);

(b)              a person who is receiving supports or services of a kind mentioned in paragraph (b) of the definition of NDIS provider in section 9 of that Act;

(c)              a person who is receiving supports or services of a kind prescribed by the regulations for the purposes of this paragraph.’

Proposed section 85ZZGN requires the Minister to cause two reviews to be conducted on the operation of these new provisions. The reviews must be completed by 31 December 2019 and 2022. A written report must then be tabled in Parliament within 15 sitting days after the day on which the Minister receives each report.

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[1].              For background to the NDIS see L Buckmaster and J Tomaras, National Disability Insurance Scheme Bill 2012, Bills digest, 72, 2012–13, Parliamentary Library, Canberra, 2013.

[2].              Senate Standing Committee on Community Affairs, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability, The Senate, Canberra, 25 November 2015.

[3].              For more background on the inquiries into violence and abuse and the Government response see P Pyburne, National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Bill 2017, Bills digest, 52, 2017–18, Parliamentary Library, Canberra, 2017, pp. 4–6.

[4].              The Bill passed both houses on 4 December 2017.

[5].              National Disability Insurance Scheme Act 2013, subsection 181E(f), unincorporated at time of writing. See National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017.

[6].              Department of Social Services (DSS), ‘NDIS Quality and Safeguards Commission’, DSS website, 31 January 2018.

[7].              See for example, Queensland Government Department of Communities, Disability Services and Seniors (DCDSS), ‘National Disability Insurance Scheme (NDIS): criminal history screening’, DCDSS webpage; ACT Government, About the ACT Working with Vulnerable People Scheme, September 2015.

[8].              D Teehan, ‘Second reading speech: Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Bill 2018’, House of Representatives, Debates, 15 February 2018, p.1600.

[9].              Ibid.

[10].              Ibid.

[11].              Crimes Act 1914, proposed sections 85ZZGI-85ZZGM.

[12].              Crimes Act 1914, ss. 85ZZGA-85ZZGG.

[13].              Crimes Amendment (Working With Children—Criminal History) Act 2010 ; for background on the introduction of these provisions see M Biddington and L Buckmaster, Crimes Amendment (Working With Children—Criminal History) Bill 2009, Bills digest, 25, 2009–10, Parliamentary Library, Canberra, 2009.

[14].              Attorney-General’s Department, Review of the operation of Subdivision A of Division 6 of Part VIIC of the Crimes Act 1914, Final report, October 2013, p.24.

[15].              Senate Standing Committee for Selection of Bills, Report, 2, 2018, The Senate, Canberra, 15 February 2018.

[16].              J Macklin, ‘Second reading debate: Crimes Amendment (National Disability Insurance Scheme—Worker Screening) Bill 2018’, House of Representatives, Debates, (proof), 28 February 2018, p. 81.

[17].              The Financial Impact Statement can be found at page 2 of the Explanatory Memorandum to the Bill.

[18].              The Statement of Compatibility with Human Rights can be found at page 9 of the Explanatory Memorandum to the Bill.

[19].              Crimes Act 1914, ss. 85ZS, 85ZT, 85ZU.

[20].              Crimes Act 1914, ss. 85ZS, 85ZU.

[21].              Crimes Act 1914, ss. 85ZV, 85ZW.

[22].              Crimes Act 1914, ss. 85ZZGA-85ZZGG.