Bills Digest no. 90, 2017–18
PDF version [523KB]
Jonathan Mills
Law and Bills Digest Section
21 March 2018
Contents
Purpose of the Bill
Structure of the Bill
Background
Committee consideration
Senate Standing Committee for
Selection of Bills
Senate Standing Committee for the
Scrutiny of Bills
Policy position of non-government
parties/independents
Position of major interest groups
Financial implications
Statement of Compatibility with Human
Rights
Parliamentary Joint Committee on
Human Rights
Key issues and provisions
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.
Members, Senators and Parliamentary staff can obtain
further information from the Parliamentary Library on (02) 6277 2500.
[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.
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