On 13 February 2019, the Australian Government introduced the National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 (the Bill) into the House of Representatives. The Bill seeks to amend the National Disability Insurance Scheme Act 2013 (NDIS Act) to establish a database for nationally consistent worker screening for the purposes of the National Disability Insurance Scheme (NDIS). The Australian Government estimates that the total cost of developing and maintaining the database is $13.6 million over the forward estimates, of which the state and territory governments are expected to contribute $6.8 million.
At the time of publication, we have not been able to identify any commentary from stakeholders on the Bill.
On 9 December 2016, the Council of Australian Governments (COAG) stated that all jurisdictions had agreed to a new national quality and safeguards framework to protect NDIS participants with disability.
A core element of NDIS Quality and Safeguarding Framework was the development of a nationally consistent approach to screening for workers engaged by NDIS providers or the National Disability Insurance Agency (NDIA) that have significant contact with people with disability as part of their work or role. As outlined by the Minister for Families and Social Services:
Current worker screening arrangements for disability workers are state based and of variable quality. Clearances are not recognised across jurisdictions. A national NDIS Worker Screening Check is a major step forward from the variable arrangements currently operating in each state and territory.
Nationally consistent NDIS worker screening will help create a safe and trusted workforce in the NDIS, and minimise the risk of harm to people with disability.
While the Australian Government is to have broad policy design and oversight of the new system, states and territories are to maintain operational responsibility for the worker screening process.
The national policy for the NDIS worker screening is set out in the Intergovernmental Agreement on Nationally Consistent Worker Screening (the Intergovernmental Agreement). Currently, all states and territories (with the exception of Western Australia) have signed onto the Intergovernmental Agreement.
Under the Intergovernmental Agreement, the parties agreed to the establishment and maintenance of a National Clearance Database, with funding to be shared between the Australian, state and territory governments. The NDIS Quality and Safeguards Commissioner (the Commissioner) is responsible for the administration of the database, which would serve to:
- maintain a register of cleared and excluded applicants and workers from all jurisdictions to support national portability
- facilitate the exchange of relevant information about individuals applying to work in the NDIS, and ensure that a decision to issue an NDIS Worker Screening Check exclusion, interim bar or suspension would be available to all jurisdictions
- enable national ongoing monitoring of cleared applicants’ criminal history records during the validity period of their clearance to ensure worker screening units can assess and respond in a timely manner to risk posed to participants and
- enable employer verification of applicants (clause 94 of the Intergovernmental Agreement).
Provisions of the Bill
The Bill will commence on 1 July 2019.
Definition of NDIS worker screening law
Item 3 of Schedule 1 to the Bill inserts new section 10B into the NDIS Act. Proposed section 10B states that the Minister may, by legislative instrument and with the agreement of the state or territory, define any state or territory law as a NDIS worker screening law.
While this legislative instrument will not be subject to disallowance under section 42 of the Legislation Act 2003 (due to it facilitating an intergovernmental scheme involving the Commonwealth and the states and territories), subsection 10B(2) requires the Minister to be satisfied that the law establishes a scheme for the screening of workers for purposes including the NDIS before a determination is made.
Establishment of NDIS worker screening database
Item 4 of Schedule 1 to the Bill inserts new section 181Y into the NDIS Act for the purposes of establishing the NDIS worker screening database. The worker screening database is not a legislative instrument, and would not be subject to disallowance.
Proposed subsection 181Y(1) of the NDIS Act states that the Commissioner must establish, operate and maintain the NDIS worker screening database. Under proposed subsection 181Y(2), the database must be kept in electronic form.
Proposed subsection 181Y(3) states that the purposes of the database are:
- to maintain, for the purposes of the NDIS, an up-to-date record of persons who have been found under NDIS worker screening laws to pose a risk (or not pose a risk) in working or seeking to work with people with disability
- to maintain an up-to-date record of other decisions made under NDIS worker screening laws
- to share information with persons or bodies (including employers and potential employers) for the purposes of the NDIS and
- any other purpose the Minister (or Commissioner, as delegated) determines.
The Explanatory Memorandum to the Bill states that the flexibility to allow the Minister to determine, by disallowable legislative instrument, any purpose of the database 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’. However, it does not appear that this power was outlined in the Intergovernmental Agreement (mentioned above).
While many of the purposes of the database listed in the Bill are similar in effect to those in the Intergovernmental Agreement, some of the purposes in the Bill are wider in scope. For example, the Bill states a purpose of the database is to ‘share information with persons or bodies (including employers and potential employers)’ whereas the Intergovernmental Agreement states that the database would serve to ‘enable employer verification of applicants’.
Proposed subsection 181Y(5) states that the database will keep a record of all decisions made in relation to persons who have made an application for an assessment of whether they, in working or seeking to work with people with disability, pose a risk to such people. The Minister (or Commissioner, as delegated) may also determine by legislative instrument any other information to be included in the database. Any determinations made under subsection 181Y(5) will be subject to disallowance.
Proposed subsection 181Y(7) provides that information included in the NDIS worker screening database may include personal information, as defined in the Privacy Act 1988. As outlined in the Explanatory Memorandum, this may include the following information for the purposes of identifying the correct person:
- personal information – 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
- sensitive information – disability status, Aboriginal and Torres Strait Islander status, and cultural and linguistic diversity status. The sensitive information is to be used for policy development, evaluation and research purposes.
The database will not contain information about a person’s criminal history that may have been relied on to support a decision that is made under a NDIS worker screening law. It is intended that decision information will only relate to the outcome or result of the decision, not information used in making that decision.
The database will also not contain information about a person’s sexual identity or preferences.
The collection, use and disclosure of information in the database will be subject to pre-existing privacy provisions in Chapter 4 of the NDIS Act as well as provisions under the Privacy Act 1988.