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This is a Bill, not an Act. For current law, see the Acts databases.
South Australia
Statutes Amendment (Screening)
Bill 2019
A BILL FOR
An Act to amend the
Child
Safety (Prohibited Persons) Act 2016
, the
Children's
Protection Law Reform (Transitional Arrangements and Related Amendments)
Act 2017
and the
Disability
Inclusion Act 2018
.
Contents
Part 2—Amendment of Child Safety
(Prohibited Persons) Act 2016
4Amendment of section 6—Meaning of
child-related work and work with children
5Amendment of section 9—Meaning of excluded
person
6Amendment of section 12—Interaction with
other Acts and laws
7Amendment of section
21—Functions
26ACertain persons
presumed to pose unacceptable risk to children
33AFee payable
where volunteer undertakes paid employment
10Amendment of section 34—Records
management system
39AReporting bodies
to notify central assessment unit etc
15Insertion of Part 5 Division 5
Division 5—Information
sharing
42ACentral
assessment unit may disclose etc information with other
jurisdictions
42BAccess to police
information
42CDisclosure of
information about offences
42DDisclose of
information to prevent harm
42EDisclosure of
information for research etc purposes
42FProvision of
other information to central assessment unit
42GInformation
sharing for national register or database
16Insertion of sections 8A and 8B
8BTransitional
provisions—certain emergency service workers
17Amendment of section 43—Amendment of
section 5—Interpretation
Part 4—Amendment
of Disability Inclusion Act 2018
19Amendment of section
3—Interpretation
Part 5A—Screening of NDIS
workers
18BMeaning of disqualified and
presumptively disqualified persons
18FPending
applications to be disregarded
Division 2—NDIS
worker check clearances and exclusions
18GApplication for
NDIS worker check clearance
18HCertain persons not permitted to
apply for NDIS worker check clearance
18IDetermination of
application—grant of NDIS worker check clearance
18JDetermination of
application—issue of NDIS worker check exclusion
18KCertain persons presumed to pose
risk of harm to people with disability
18LNotice of grant
of NDIS worker check clearance or issue of NDIS worker check
exclusion
18NRequirement for
risk assessment
18OMatters to be
considered in risk assessment
Division 4—Duration and termination
of NDIS worker check clearances and exclusions
18PDuration of NDIS
worker check clearance
18QDuration of NDIS
worker check exclusion
18RRequirement to
notify change of particulars
18SSuspension of
NDIS worker check clearance
18TCancellation of NDIS worker
check clearance
18UCancellation of
NDIS worker check clearance at request of holder
Division 5—Information gathering
and sharing
Subdivision 1—Information
gathering
18VCourt to provide
notice of certain findings of guilt to central assessment unit
18XPower to require information
from applicant or clearance holder
18YPower to require
information from other persons
Subdivision 2—Information sharing
and use
18ZCentral
assessment unit may disclose etc information with other
jurisdictions
18ZAAccess to
police information
18ZBProvision of
information to central assessment unit
18ZCProvision of
information to NDIS employers and participants
18ZDPower to retain
information etc indefinitely
18ZENotification by
reporting bodies of conduct requiring risk assessment
18ZFInformation
sharing for national register or database
18ZGInformation
sharing for research, monitoring and auditing purposes
18ZHDisclosure of
information about offences
18ZIDisclosure of
information to prevent significant harm
Division 6—Review of decisions by
South Australian Civil and Administrative Tribunal
18ZJReview of
decisions by South Australian Civil and Administrative Tribunal
18ZKFee payable
where volunteer undertakes paid employment
18ZLEffect of Part
on other rights and procedures
18ZNFalse or
misleading statements
18ZPFailure to
give notice of decisions
18ZQCentral
assessment unit may seek external advice
21Amendment of section
19—Interpretation
22Insertion of sections 22A to
22E
22ASteps employers must take
before employing person in prescribed position
22BEmployer to
ensure screening check conducted at least every 5 years
22CEmployer to
advise central assessment unit of certain information
22EInspection of records
management system
23Amendment of section 23—Regulations to
set out scheme for screening checks
24Amendment of section
33—Regulations
Schedule 2—Transitional provisions
relating to NDIS worker check clearances
3Recognition of
certain assessments of relevant history as NDIS worker check
clearance
The Parliament of South Australia enacts as
follows:
This Act may be cited as the Statutes Amendment (Screening)
Act 2019.
This Act will come into operation on a day to be fixed by
proclamation.
In this Act, a provision under a heading referring to the amendment of a
specified Act amends the Act so specified.
Part 2—Amendment
of Child Safety (Prohibited Persons)
Act 2016
4—Amendment
of section 6—Meaning of child-related
work and work with children
Section 6—after subsection (1) insert:
(1a) For the purposes of this Act, a service or activity will not be taken
to be child-related work merely because—
(a) a person employs a child in the course of the service or activity;
or
(b) a person undertakes the service or activity in the same capacity as a
child to whom the service or activity relates.
5—Amendment
of section 9—Meaning of excluded
person
(1) Section 9(1)(a)—delete paragraph (a)
(2) Section 9(1)(b)—delete paragraph (b)
6—Amendment
of section 12—Interaction with other Acts and laws
Section 12(2)(a)—after "prescribed offence" insert:
or presumptive disqualification offence (within the meaning of section
26A)
7—Amendment
of section 21—Functions
Section 21(1)—after paragraph (d) insert:
(da) to conduct screenings for the purposes of the
Disability
Inclusion Act 2018
and to perform such other functions as may assigned to the central
assessment unit under that Act;
After section 26 insert:
26A—Certain persons presumed to pose unacceptable
risk to children
(1) Subject to this
section, the following provisions apply in relation to the conduct of a working
with children check in respect of a person who has been found guilty of a
presumptive disqualification offence (whether the offence was committed, or the
finding of guilt made, before or after the commencement of this
section):
(a) the person will be presumed to pose an unacceptable risk to
children;
(b) the central assessment unit need not consider or assess any further
information in relation to an application for a working with children check made
by the person;
(c) the central
assessment unit must, for the purposes of section 26(5), determine that the
person is to be prohibited from working with children unless the person
satisfies the central assessment unit that—
(i) the circumstances of the presumptive disqualification offence are such
that the offence should be disregarded in determining whether the person poses
an unacceptable risk to children; or
(ii) such exceptional circumstances exist in relation to the person that
the person does not appear, or no longer appears, to pose an unacceptable risk
to children.
(2) Nothing in this section limits section 27(3).
(3) For the purposes of this section, a reference to a person who
has been found guilty of a presumptive disqualification offence will be
taken to include a reference to—
(a) a person in relation to whom, on a charge of a presumptive
disqualification offence—
(i) there is a
finding of a court under Part 8A of the
Criminal
Law Consolidation Act 1935
that the objective elements of a presumptive disqualification offence are
established (whether or not the person was found not guilty of the offence, or
was found to be mentally unfit to stand trial, pursuant to Division 2
or 3 of that Part); or
(ii) there is a finding of a court of another jurisdiction that
corresponds to a finding referred to in
subparagraph (i)
; and
(b) a person who has been charged with a prescribed offence or presumptive
disqualification offence, but where the charge has not yet been finally
determined.
(4) In this section—
presumptive disqualification offence means an offence, or
class of offences, declared by the regulations to be a presumptive
disqualification offence (but does not include an offence that is a prescribed
offence).
After section 33 insert:
33A—Fee payable where volunteer undertakes paid
employment
(a) a working with children check is conducted under this Act in respect
of a person; and
(b) the person satisfies the central assessment unit that the person is a
volunteer and so pays no fee in relation to the working with children check;
and
(c) the person uses that working with children check to work with children
other than as a volunteer,
the person must, unless the fee is waived by the central assessment unit,
pay to the central assessment unit the prescribed fee.
(2) A payment under
subsection (1)
must be made as soon as is reasonably practicable (and in any case within
28 days) after the person commences work with children other than as a
volunteer.
(3) A person who fails to comply with
subsection (1)
is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) However, a failure to comply with
subsection (1)
does not affect the validity of a working with children check.
10—Amendment
of section 34—Records management system
Section 34(2)(a)—before "a part" insert:
to the extent that the central assessment unit is in possession of the
relevant information,
11—Amendment
of section 38—Court to provide notice of certain findings of guilt to
central assessment unit
Section 38—after "prescribed offence" insert:
or presumptive disqualification offence (within the meaning of section
26A)
Section 39—delete the section and substitute:
39—Commissioner of Police to provide information to
central assessment unit on charging of certain persons
Without limiting any other Act or law that requires or authorises the
Commissioner of Police to disclose information, the Commissioner of Police must
ensure that, if a police officer lays a charge of a prescribed offence or a
presumptive disqualification offence (within the meaning of section 26A) against
a person, the prescribed information relating to the charge is provided to the
central assessment unit as soon as is reasonably practicable after the person is
charged.
After section 39 insert:
39A—Reporting bodies to notify central assessment
unit etc
(1) Without limiting
any other Act or law that requires or authorises a reporting body to disclose
information, a reporting body—
(a) must, if in the
course of performing its functions in relation to a person the reporting body
suspects that the person poses, or may pose, an unacceptable risk to
children—
(i) notify the central assessment unit of that suspicion; and
(ii) provide to the central assessment unit such information as may be in
the possession of the reporting body as may be relevant to the notification;
and
(b) may disclose to the central assessment unit any information on any
matter relevant to the operation of this Act.
(2) A notification under
subsection (1)(a)
must be made in a manner and form determined by the central assessment
unit.
(3) The regulations may make further provision in relation to a
notification under this section.
(4) In this section—
reporting body means a person or body prescribed by the
regulations for the purposes of this section.
14—Amendment
of section 40—Certain persons to advise central assessment unit of changes
in information
(1) Section 40(1)(e)—delete paragraph (e) and substitute:
(e) there is a relevant change of particulars in relation to the
person.
(2) Section 40—after subsection (3) insert:
(4) In this section—
relevant change of particulars, in relation to a person,
means—
(a) a change in the person's name, residential address or contact details;
or
(b) the use of another name or names by the person; or
(c) a change of employer by the person; or
(d) any other change declared by the regulations to be included in the
ambit of this definition.
15—Insertion
of Part 5 Division 5
After section 42 insert:
Division 5—Information sharing
42A—Central assessment unit may disclose etc
information with other jurisdictions
(1) Despite a provision of this or any other Act or law, the central
assessment unit is authorised to receive and make use of information relevant to
the functions of the central assessment unit under this Act from any person or
body in this or any other jurisdiction.
(2) Despite a provision of this or any other Act or law, the central
assessment unit is authorised to disclose information (not being information
classified by the Commissioner of Police as criminal intelligence) in the
possession of the central assessment unit to a prescribed person or body in
another State or Territory for purposes related to the screening of persons who
work with children.
(3) In this section—
prescribed person or body means—
(a) a person or body whose official function consists of or includes the
screening of persons who work with children (however described); or
(b) any other person or body prescribed by the regulations for the
purposes of this paragraph.
42B—Access to police
information
(1) The Commissioner of Police is authorised to disclose the following
information for the purpose of the use of the information in assessing and
determining whether a person who engages or proposes to engage in child-related
work poses an unacceptable risk to children:
(a) information relating to any matter that may cause a person to be
prohibited from working with children, or require a risk assessment of a person
under this Act or a corresponding law;
(b) information relating to the criminal history of a person;
(c) without limiting a preceding paragraph, information relating to the
circumstances of an offence or other matter disclosed under this
section.
(2) The disclosure of information under this section is limited to
disclosure to any of the following:
(a) the central assessment unit;
(b) an interstate screening agency;
(c) the Australian Criminal Intelligence Commission;
(d) a law enforcement agency of the Commonwealth or another State or
Territory.
(3) A person to whom information is disclosed under this section may
disclose that information to an interstate screening agency for the purposes of
the use of the information in assessing and determining whether a person poses
an unacceptable risk to children.
(4) Information relating to a person's criminal history may be disclosed
under this section whether or not the information relates to a prescribed
offence or presumptive disqualification offence (within the meaning of section
26A).
(5) This section does not limit the persons to whom, or the circumstances
in which, information relating to the criminal history, including the criminal
record, of persons may be disclosed apart from this Act.
(6) This section does not limit the powers of the Commissioner of Police
to disclose relevant information as an authorised person under this
Act.
(7) In this section—
interstate screening agency means a person or body exercising
functions in the execution or administration of a corresponding law.
42C—Disclosure of information about
offences
(1) The central assessment unit may disclose to a law enforcement agency
of the State or any other jurisdiction (including a jurisdiction outside
Australia) any information obtained as a result of the exercise of a function
under this Act that indicates that a relevant offence may have been committed or
that constitutes evidence of a relevant offence.
(2) In this section—
relevant offence means a prescribed offence, or any other
offence declared by the regulations to be included in the ambit of this
definition.
42D—Disclose of information to prevent
harm
Despite a provision of this or any other Act or law, the central assessment
unit may disclose information obtained in the course of the administration or
operation of this Act to an appropriate person or body if the central assessment
unit is of the opinion that to do so is reasonably necessary to prevent harm
being caused to a child.
42E—Disclosure of information for research etc
purposes
Despite a provision of this or any other Act or law, the central assessment
unit may disclose information obtained in the course of the administration or
operation of this Act to an appropriate person or body for the purposes of
research into the operation of this Act or a law of another State or Territory
related to the screening of persons who work with children, or auditing of
compliance with such laws.
42F—Provision of other information to central
assessment unit
(1) Despite a provision of this or any other Act or law, a person or body
(including, to avoid doubt, an administrative unit or public sector employee
within the meaning of the
Public
Sector Act 2009
) may provide to the central assessment unit any information that the
person or body reasonably believes is relevant to the functions of the central
assessment unit under this Act.
(2) A person or body incurs no civil or criminal liability in respect of
the provision of information to the central assessment unit in good faith and
without negligence under this section.
42G—Information sharing for national register or
database
Despite a provision of this or any other Act or law, the central assessment
unit may disclose information obtained in the operation or administration of
this Act for the purpose of providing relevant information for entry in a
national register or database relating to the screening of persons who work with
children.
Part 3—Amendment
of Children's Protection Law Reform
(Transitional Arrangements and Related Amendments)
Act 2017
16—Insertion
of sections 8A and 8B
After section 8 insert:
8A—Transitional provisions—persons the
subject of assessment of relevant history conducted by responsible
authority
(1) This section
applies to a person in respect of whom the responsible authority for an
organisation had conducted an assessment of relevant history in accordance with
regulation 6(1)(a) of the
Children's
Protection Regulations 2010
within the 3 years preceding the commencement of this section.
(2) The following provisions of the
Child
Safety (Prohibited Persons) Act 2016
do not apply to, or in relation to, a person to whom this section
applies:
(a) section 16;
(b) section 17;
(c) section 18.
(3) However, this section ceases to apply to a person referred to in
subsection (1)
—
(a) if either of the following occurs:
(i) the person becomes a prohibited person;
(ii) a working with children check is conducted in relation to the person;
or
(b) 12 months after the commencement of this section,
whichever occurs first.
(4) The central assessment unit may issue a unique identifier under
section 29 of the
Child
Safety (Prohibited Persons) Act 2016
to each person to whom this section applies (being a person to whom a
unique identifier has not previously been issued under that Act).
(5) In this section—
responsible authority for an organisation has the same
meaning as in section 8B of the
Children's
Protection Act 1993
, as in force immediately before that section is repealed.
8B—Transitional provisions—certain emergency
service workers
(1) This section
applies to a person who, immediately before the commencement of this section,
was an emergency service worker.
(2) However, this section ceases to apply to a person referred to in
subsection (1)
if any of the following occurs:
(a) the person becomes a prohibited person;
(b) a working with children check is conducted in relation to the
person;
(c) the person ceases to be an emergency service worker.
(3) The following provisions of the
Child
Safety (Prohibited Persons) Act 2016
do not apply to, or in relation to, a person to whom this section
applies:
(a) section 16;
(b) section 17;
(c) section 18.
(4) The central assessment unit may issue a unique identifier under
section 29 of the
Child
Safety (Prohibited Persons) Act 2016
to each person to whom this section applies (being a person to whom a
unique identifier has not previously been issued under that Act).
(5) In this section—
emergency service worker means—
(a) a member of—
(i) SAMFS; or
(ii) SACFS; or
(iii) SASES; or
(b) a member of the SA Ambulance Service; or
(c) a person providing ambulance services pursuant to a restricted
ambulance service licence under section 58 of the
Health
Care Act 2008
.
17—Amendment
of section 43—Amendment of section
5—Interpretation
Section 43(1)—delete subsection (1)
Part 4—Amendment
of Disability Inclusion
Act 2018
Long title—after "mainstream supports and services by people with
disability;" insert:
to provide for NDIS worker check clearances and exclusions for the purposes
of the National Disability Insurance Scheme;
19—Amendment
of section 3—Interpretation
(1) Section 3(1)—before the definition of Chief
Executive insert:
central assessment unit means the central assessment unit
established under the
Child
Safety (Prohibited Persons) Act 2016
;
(2) Section 3(1)—after the definition of National Disability
Insurance Scheme insert:
Registrar means the Registrar of the central assessment unit
within the meaning of the
Child
Safety (Prohibited Persons) Act 2016
;
After Part 5 insert:
Part 5A—Screening of NDIS
workers
Division 1—Preliminary
18A—Interpretation
(1) In this Part—
authorised person means—
(a) the central assessment unit; or
(b) a person or body exercising functions in the operation or
administration of a relevant law; or
(c) the NDIS Commission; or
(d) a law enforcement agency of this or any other jurisdiction (including
a jurisdiction outside Australia); or
(e) any other person declared by the regulations to be included in the
ambit of this paragraph;
authorised purpose means any purpose that is for, or in
connection with, the operation or administration of, or compliance with, a
relevant law, and includes (without limitation) the following
purposes:
(a) verification of the identity of a person who is, or who has at any
time been, an applicant for, or the holder of, a clearance or other authority
under a relevant law;
(b) consideration and determination of a person's application for a
clearance or other authority under a relevant law;
(c) assessing and determining under a relevant law whether a person poses
a relevant risk of harm;
(d) assessing and determining whether a risk assessment of a person is
required under a relevant law;
(e) ongoing monitoring of a person who holds a clearance or other
authority under a relevant law for the purpose of determining whether the person
requires a risk assessment or poses a relevant risk of harm;
(f) administrative review (including internal review) of a decision under
a relevant law;
criminal intelligence means information relating to actual or
suspected criminal activity (whether in this State or elsewhere) the disclosure
of which could reasonably be expected to prejudice criminal investigations, to
enable the discovery of the existence or identity of a confidential source of
information relevant to law enforcement or to endanger a person's life or
physical safety;
corresponding law means—
(a) a law of the Commonwealth, or of another State or Territory, that
corresponds to this Part; or
(b) any other law of the Commonwealth, or of another State or Territory,
that is prescribed by the regulations as a corresponding law for the purposes of
this Part;
disqualification offence means an offence, or class of
offences, declared by the regulations to be a disqualification
offence;
disqualified person—see
section 18B(1)
;
engage means engage 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;
Intergovernmental Agreement means the agreement between the
States, Territories and the Commonwealth titled Intergovernmental Agreement on
Nationally Consistent Worker Screening for the National Disability Insurance
Scheme (including its Schedules), as in force from time to time;
NDIS Act means the National Disability Insurance Scheme
Act 2013 of the Commonwealth and includes the rules under that
Act;
NDIS Commission means the NDIS Quality and Safeguards
Commission established under the NDIS Act;
NDIS employer means a person who engages a person to do NDIS
work;
NDIS purpose means an authorised purpose where the reference
to a relevant law in the definition of authorised purpose is
limited to this Part, a corresponding law or the NDIS Act;
NDIS work means work comprising, or in connection with, the
provision of supports or services to people with disability under the National
Disability Insurance Scheme, being work—
(a) that is the subject of requirements under the NDIS Act for a person to
hold 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
(b) that the central assessment unit is satisfied is work in respect of
which it is otherwise necessary or convenient for a person to hold a clearance
to facilitate the person's engagement in that work;
NDIS worker check clearance or clearance means
an NDIS worker check clearance granted under this Part;
NDIS worker check exclusion or exclusion means
an NDIS worker check exclusion issued under this Part;
notifiable person in relation to an applicant for a clearance
or the holder of a clearance means—
(a) any NDIS employer who engages or proposes to engage the applicant or
holder; or
(b) any other person, or class of persons, prescribed by the regulations
for the purposes of this definition;
presumptive disqualification offence means an offence, or
class of offences, declared by the regulations to be a presumptive
disqualification offence but does not include an offence that is a
disqualification offence;
presumptively disqualified person—see
section 18B(3)
;
protected information means information that may, if
disclosed—
(a) prejudice a criminal investigation; or
(b) identify, or
enable the identification of, a person with disability who has been harmed, or
is at risk of harm; or
(c) identify, or enable the identification of, a parent, guardian or
family member of a person referred to in
paragraph (b)
; or
(d) identify, or enable the identification of, a person who has made a
report or notification that a person with disability has been harmed, or may be
at risk of harm (whether under this Act or otherwise); or
(e) endanger a person's life or physical safety or wellbeing,
and includes information that is protected information under the
Child
Safety (Prohibited Persons) Regulations 2019
;
relevant information, in relation to a person,
means—
(a) information relevant to verification of the identity of the person;
or
(b) information about the person disclosed in an application for a
clearance or other authority under a relevant law; or
(c) information relating to the person's criminal history in the State or
any other jurisdiction; or
(d) information about workplace misconduct by the person in the State or
any other jurisdiction, being misconduct that concerns persons to whom a
relevant risk of harm relates (whether or not such information was obtained in
the course of, or relates to, disciplinary proceedings relating to the person);
or
(e) information about any order imposed on the person by a court relating
to child protection, apprehended violence or domestic or family violence in the
State or any other jurisdiction; or
(f) information relevant to determining whether the person requires a risk
assessment under a relevant 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 or any other jurisdiction; or
(i) other information relevant to determining whether the person poses a
relevant risk of harm;
relevant law means—
(a) this Act; or
(b) a corresponding law; or
(c) the NDIS Act; or
(d) the
Child
Safety (Prohibited Persons) Act 2016
; or
(e) any other law of the Commonwealth, or another State or Territory,
prescribed by the regulations for the purposes of this paragraph;
relevant risk of harm means a risk of harm to persons with
whose protection a relevant law is concerned;
risk assessment, of a person, means a risk assessment of the
person under
Division 3
;
risk of harm—see
section 18M
.
(2) For the purposes of the definition of relevant
information, a reference in that definition to information
will be taken to include a reference to information—
(a) whether the information was obtained before or after the commencement
of this section;
(b) whether the conduct, finding of guilt or other matter to which the
information relates occurred before or after the commencement of this
section;
(c) whether the conduct, finding of guilt or other matter to which the
information relates occurred in this State or another jurisdiction;
(d) regardless of the outcome of any legal or other proceedings to which
the information relates.
(3) For the purposes of this Part, a reference to a person's
clearance history will be taken to be a reference to the history
of action taken under a relevant law in respect of an application for a
clearance by the person, or a clearance held by the person under the relevant
law, including any exclusion, risk assessment determination, refusal of an
application and the suspension or cancellation of a clearance.
(4) For the purposes of
this Part, a reference to a person being found guilty of an
offence will be taken to include a reference to—
(a) a finding of a
court under Part 8A of the
Criminal
Law Consolidation Act 1935
that the objective elements of an offence are established (whether or not
the person was found not guilty of the offence, or was found to be mentally
unfit to stand trial, pursuant to Division 2 or 3 of that Part);
or
(b) any finding of a court of another jurisdiction that corresponds to a
finding referred to in
paragraph (a)
.
(5) For the purposes of this Part, a reference to a person who has been
found guilty of a presumptive disqualification offence will be
taken to include a reference to a person who has been charged with a
disqualification offence or presumptive disqualification offence committed as an
adult, but where the charge has not yet been finally determined.
(6) For the purposes of this Part—
(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 on their own account (in
which case the person is to be regarded as being self-employed as a
volunteer).
(7) Except where the contrary intention appears, a term or phrase used in
this Part that is defined in the NDIS Act has the same meaning as in that
Act.
(8) In the interpretation of this Part, consideration may be given to the
provisions of the Intergovernmental Agreement.
18B—Meaning of disqualified and
presumptively disqualified persons
(1) For the
purposes of this Part, a person is a disqualified person if the
person has been found guilty of a disqualification offence committed as an adult
(whether the offence was committed, or the finding of guilt made, before or
after the commencement of this section).
(2) Despite section
section 18A(4)
, for the purposes of
subsection (1)
a reference to a person being found guilty of a
disqualification offence will be taken not to include a reference
to—
(a) a finding of a
court under Part 8A of the
Criminal
Law Consolidation Act 1935
that the objective elements of a disqualification offence are established
(whether or not the person was found not guilty of the offence, or was found to
be mentally unfit to stand trial, pursuant to Division 2 or 3 of that
Part); or
(b) a finding of a court of another jurisdiction that corresponds to a
finding referred to in
paragraph (a)
.
(3) For the
purposes of this Part, a person is a presumptively disqualified
person if—
(a) the person has been found guilty of a presumptive disqualifying
offence committed as an adult (whether the offence was committed, or the finding
of guilt made, before or after the commencement of this section); or
(b) a finding of a kind referred to in
subsection (2)
has been made in relation to the person.
18C—Criminal intelligence
(1) If the central assessment unit makes a decision under this Part on the
basis of information that is classified by the Commissioner of Police as
criminal intelligence, the central assessment unit is not required to provide
any grounds or reasons for the decision other than that it would be contrary to
the public interest to allow the person to work with people with
disability.
(2) In any proceedings under this Part, the court determining the
proceedings—
(a) must, on the application of the Commissioner of Police, take steps to
maintain the confidentiality of information classified by the Commissioner of
Police as criminal intelligence, including steps to receive evidence and hear
argument about the information in private in the absence of the parties to the
proceedings and their representatives; and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Commissioner of Police by way of affidavit.
18D—Protected information
(1) The Registrar may, in accordance with any requirements set out in the
regulations, classify specified information as protected information.
(2) If the central assessment unit makes a decision under this Part on the
basis of information that is classified by the Registrar as protected
information, the central assessment unit is not required to provide any grounds
or reasons for the decision other than that it would be contrary to the public
interest to allow the person to work with people with disability.
(3) In any proceedings under this Act, the court determining the
proceedings—
(a) must, on the application of the Registrar, take steps to maintain the
confidentiality of information classified by the Registrar as protected
information, including steps to receive evidence and hear argument about the
information in private in the absence of the parties to the proceedings and
their representatives; and
(b) may take evidence consisting of, or relating to, information that is
so classified by the Registrar by way of affidavit.
18E—Powers of delegation
(1) The central
assessment unit may delegate a function or power under this Part (other than a
prescribed function or power) to the Registrar or a specified body or person
(including a person for the time being holding or acting in a specified office
or position).
(2) The Registrar
may delegate a function or power under this Part (other than a prescribed
function or power) to a specified body or person (including a person for the
time being holding or acting in a specified office or position).
(3) A delegation under this section—
(a) must be by instrument in writing; and
(b) may be absolute or conditional; and
(c) does not derogate from the ability of the central assessment unit or
the Registrar (as the case requires) to act in any matter; and
(d) is revocable at will.
(4) A function or power delegated under this section may, if the
instrument of delegation so provides, be further delegated.
18F—Pending applications to be
disregarded
For the purposes of this Part—
(a) a person will be taken not to have been granted an NDIS worker check
clearance merely because they have made an application for a clearance that has
not yet been determined; and
(b) nothing in this Part authorises an applicant for an NDIS worker check
clearance that has not yet been determined to undertake NDIS work.
Division 2—NDIS worker check clearances and
exclusions
18G—Application for NDIS worker check
clearance
(1) A person may apply to the central assessment unit for a clearance in
accordance with this section.
(2) An applicant must—
(a) reside, or intend to reside, in this State; or
(b) undertake NDIS work, or intend to undertake NDIS work, in this
State,
and the central assessment unit may refuse to accept an application if the
central assessment is not satisfied that the applicant satisfies the
requirements under this subsection.
(3) An application for a clearance must—
(a) be made in a manner and form approved by the central assessment unit;
and
(b) be accompanied by any information required by the central assessment
unit; and
(c) include, or be accompanied by, proof of the identity of the applicant
in a form approved by the central assessment unit; and
(d) be accompanied by the prescribed fee.
(4) The approved form of application for a clearance must provide for the
authorisation by the applicant of—
(a) the making of inquiries about the applicant by the central assessment
unit for an NDIS purpose; and
(b) the obtaining of relevant information about the applicant by the
central assessment unit from any authorised person for an NDIS purpose;
and
(c) the disclosure of relevant information about the applicant by the
central assessment unit to an authorised person for an authorised
purpose.
(5) The central assessment unit may require an applicant for a clearance
to provide a recent photograph of the applicant, obtained in accordance with
arrangements determined by the central assessment unit.
(6) An applicant may withdraw an application at any time by notice in
writing to the central assessment unit in the form approved by the central
assessment unit, however the withdrawal only has effect if the central
assessment unit consents to the withdrawal.
(7) The central assessment unit must consent to a withdrawal of an
application except in the following circumstances (and must refuse consent in
those circumstances):
(a) a clearance currently held by the applicant under this Part or a
corresponding law is under suspension;
(b) the applicant's most recent clearance was cancelled under this Part or
a corresponding law (other than cancellation at the request of the
holder);
(c) the central assessment unit has notified or is proposing to notify the
applicant that it proposes to issue an NDIS worker check exclusion to the
applicant but has not yet determined the application;
(d) the central assessment unit is of the opinion that there is a
reasonable likelihood that a risk assessment of the applicant will determine
that the applicant poses a risk of harm to people with disability.
(8) The central assessment unit may give written notice of the withdrawal
of an application to any person that the central assessment unit reasonably
believes to be a notifiable person in relation to the applicant.
(9) The regulations may make further provision in relation to applications
(including, to avoid doubt, provisions setting out additional circumstances in
which an application may be refused or terminated by the central assessment
unit).
18H—Certain persons not permitted to apply for NDIS
worker check clearance
(1) A person cannot apply for a clearance if the person—
(a) has made an application for a clearance under this Part or a
corresponding law and that application is pending; or
(b) currently holds a clearance under this Part or a corresponding law,
unless the application is made no more than 3 months before the expiry of the
current clearance; or
(c) is otherwise subject to a ban on applying for a clearance under this
section.
(2) A person to whom an exclusion is issued under this Part or a
corresponding law (being a person who is not a disqualified person) is banned
from applying for a clearance for 5 years following the issue of the
exclusion except where there has been a relevant change of
circumstances.
(3) A person who has had a clearance cancelled under this Part or a
corresponding law is banned from applying for a clearance for 5 years
following the cancellation except where—
(a) the cancellation was at the request of the person; or
(b) the cancellation occurs under
section 18T(2)
or
18X(2)
; or
(c) there has been a relevant change of circumstances.
(4) For the purposes of
this section, each of the following is a relevant change of
circumstances in relation to the issue of an exclusion or cancellation
of a clearance:
(a) proceedings for an offence on which the exclusion or cancellation was
based are withdrawn or dealt with without a finding of guilt in respect of the
person;
(b) a finding of guilt for an offence on which the exclusion or
cancellation was based is quashed or set aside;
(c) a finding in respect of a risk assessment on which the exclusion or
cancellation was based is quashed or set aside, or otherwise ceases to have
effect;
(d) any other change of circumstances that the central assessment unit
considers should result in the person being permitted to make an
application.
18I—Determination of application—grant of
NDIS worker check clearance
(1) Except where an NDIS worker check exclusion is issued under
section 18J
, or an application is refused under
subsection (2)
, an application for a clearance made in accordance with this Part must be
granted.
(2) An application for
a clearance may be refused if the central assessment unit is not satisfied that
the applicant is, or will be, engaged to do NDIS work.
(3) To avoid doubt, a refusal to grant a clearance under
subsection (2)
does not constitute an NDIS worker check exclusion.
18J—Determination of application—issue of
NDIS worker check exclusion
(1) The central
assessment unit must issue an NDIS worker check exclusion to an applicant for a
clearance if—
(a) the applicant is a disqualified person; or
(b) a risk assessment
of the applicant is required and the risk assessment determines that the
applicant poses a risk of harm to people with disability.
(2) Subject to this Part, before issuing an exclusion to an applicant
referred to in
subsection (1)(b)
, the central assessment unit must notify the applicant in writing of the
intention to issue the exclusion and notify the applicant that the applicant may
make a submission to the central assessment unit within the period specified in
the notice.
(3) The central assessment unit must consider any submission made by an
applicant within the specified period before finally deciding the
application.
18K—Certain persons presumed to pose risk of harm
to people with disability
(1) The following
provisions apply in relation to determination of an application for a clearance
in respect of a person who has been found guilty of a presumptive
disqualification offence:
(a) the person will be presumed to pose a risk of harm to people with
disability;
(b) the central assessment unit need not consider or assess any further
information in relation to the application;
(c) the central
assessment unit must, for the purposes of
section 18J
, determine that the person poses a risk of harm to people with disability
unless the person satisfies the central assessment unit that—
(i) the circumstances of the presumptive disqualification offence
committed, or alleged to have been committed, by the person are such that the
offence should be disregarded in determining whether the person poses a risk of
harm to people with disability; or
(ii) such exceptional circumstances exist in relation to the person that
the person does not appear, or no longer appears, to pose a risk of harm to
people with disability.
(2) Nothing in this section limits
section 18H
.
18L—Notice of grant of NDIS worker check clearance
or issue of NDIS worker check exclusion
(1) The grant of an NDIS worker check clearance, or the issue an NDIS
worker check exclusion, must be by notice in writing and must comply with any
requirements set out in the regulations for the purposes of this
subsection.
(2) Subject to this Act, notice of a decision to issue an exclusion must
set out the reasons for the decision and any right to seek a review of the
decision under this Part.
(3) The central assessment unit may give written notice of the issue of an
exclusion to an applicant to any person that the central assessment unit
reasonably believes to be a notifiable person in relation to the
applicant.
Division 3—Risk
assessment
18M—Nature of risk assessment
(1) A risk assessment of a person for the purposes of this Part is an
assessment and determination by the central assessment unit as to whether the
person poses a risk of harm to people with disability.
(2) For the purposes of this Part, a reference to a risk of harm to
people with disability is to be interpreted in accordance with the
following principles:
(a) the risk of harm must be a real and appreciable risk of
harm;
(b) the risk of harm does not need to be likely or significant;
(c) the risk of harm need not arise from recent events.
(3) In this section—
harm includes—
(a) any detrimental effect on a person's physical, psychological,
emotional or financial wellbeing (personal harm); and
(b) non-consensual or inappropriate conduct of a sexual nature with or
towards a person (whether or not that conduct poses a risk of personal
harm).
18N—Requirement for risk
assessment
(1) A risk assessment of an applicant for, or the holder of, a clearance
is required in the following circumstances:
(a) if the applicant or holder is a presumptively disqualified
person;
(b) in the circumstances prescribed by the regulations for the purposes of
this paragraph;
(c) in such other circumstances as the central assessment unit may
determine.
(2) A risk assessment of an applicant for a clearance is required at the
time of application if there are circumstances at the time of application that
require a risk assessment.
(3) A risk assessment of the holder of a clearance is required if the
central assessment unit becomes aware that there are circumstances that require
a risk assessment.
18O—Matters to be considered in risk
assessment
The central assessment unit is to consider the following for the purposes
of a risk assessment:
(a) the nature, gravity and circumstances of any offence, misconduct or
other event that resulted in, or contributed to, the requirement for a risk
assessment in relation to the person (a relevant event), and how
it is relevant to NDIS work;
(b) the length of time that has passed since a relevant event
occurred;
(c) the vulnerability of any victim of a relevant event at the time of the
event and the person's relationship to the victim or position of authority over
the victim at the time of the event;
(d) the person's criminal history, history of misconduct and other
relevant history, including whether there is a pattern of concerning
behaviour;
(e) the person's conduct since a relevant event;
(f) all other circumstances in respect of the person's criminal offending,
misconduct and other relevant history and their impact on eligibility to be
engaged in NDIS work;
(g) such other matters as the central assessment unit considers
appropriate.
Division 4—Duration and termination of NDIS
worker check clearances and exclusions
18P—Duration of NDIS worker check
clearance
(1) A clearance remains in force (unless sooner cancelled) for a period of
5 years starting from whichever of the following start dates is applicable in
the circumstances:
(a) if the applicant is not the holder of a clearance under this Part or a
corresponding law when the application for the clearance is granted, the start
date is the date on which the application for the clearance is
granted;
(b) if the application is granted while the applicant is the holder of a
clearance under this Part or a corresponding law, the start date is the date on
which the existing clearance expires.
(2) However, the
central assessment unit may extend the period for which a clearance remains in
force for a period of up to 6 months after the clearance would otherwise have
expired if the holder of the clearance has made a valid application for a
clearance under this Part or a corresponding law before the clearance expired
and that application has not yet been determined.
(3) If the period for which a clearance remains in force is extended under
subsection (2)
, the clearance will be taken to have remained in force from the original
expiry date until the extension takes effect.
(4) Despite a provision of this or any other Act, the following
arrangements apply for the purpose of facilitating alignment of the periods for
which a clearance granted to a person under this Part and a working with
children check conducted under the
Child
Safety (Prohibited Persons) Act 2016
are in force:
(a) a clearance may, at the discretion of the central assessment unit and
with the agreement of the applicant, be granted so as to be in force for a
period of less than 5 years;
(b) the period for which a clearance is in force may be shortened after
the clearance is granted at the discretion of the central assessment unit and on
the application of the holder of the clearance;
(c) the holder of a clearance may, with the approval of the central
assessment unit, apply for a new clearance earlier than 3 months before the
expiry of the clearance;
(d) the central assessment unit may approve a reduction in the fee
payable, or a refund of part of any fee paid, to reflect any reduction in the
period for which a clearance is or is to be in force.
18Q—Duration of NDIS worker check
exclusion
(1) An exclusion issued to a disqualified person remains in force
indefinitely.
(2) An exclusion issued to person other than a disqualified person remains
in force (unless sooner cancelled) for a period of 5 years starting from the
issue of the exclusion.
18R—Requirement to notify change of
particulars
(1) The holder of a clearance must notify the central assessment unit in
writing in a form approved by the central assessment unit of any relevant change
of particulars within 3 months after the change occurs.
Maximum penalty: $50 000.
(2) In this section—
relevant change of particulars, in relation to a person,
means—
(a) a change in the person's name, residential address or contact details;
or
(b) the use of another name or names by the person; or
(c) a change of employer by the person; or
(d) any other change declared by the regulations to be included in the
ambit of this definition.
18S—Suspension of NDIS worker check
clearance
(1) The central assessment unit may, by written notice to the holder of a
clearance, suspend the clearance if of the opinion that there is a reasonable
likelihood that a risk assessment of the holder will determine that the holder
poses a risk of harm to people with disability.
(2) The central assessment unit may give written notice of the suspension
of a clearance to any person that the central assessment unit reasonably
believes to be a notifiable person in relation to the holder of the
clearance.
(3) The suspension of a clearance ceases to have effect—
(a) on notification in writing by the central assessment unit to the
holder that the suspension is revoked; or
(b) if the clearance is cancelled,
whichever occurs first.
18T—Cancellation of NDIS worker check
clearance
(1) The central
assessment unit must cancel the clearance of a person if the central assessment
unit becomes aware that the person is a disqualified person, or a risk
assessment determines that the person poses a risk of harm to people with
disability.
Note—
See also
section 18K
.
(2) Without limiting
subsection (1)
or
section 18X
, the central assessment unit may cancel a clearance for any of the
following reasons:
(a) the central assessment unit is not satisfied that the person is or
will be engaged to do NDIS work;
(b) the clearance was granted pursuant to an application that was not
valid;
(c) the clearance was granted because of a mistake and should not have
been granted.
(3) If the central assessment unit proposes to cancel a clearance other
than because the person is a disqualified person, the central assessment unit
must notify the person in writing of the proposed cancellation and that the
person may make a submission to the central assessment unit within the period
specified in the notice.
(4) The central assessment unit must consider any submission made by the
person within the specified period before finally deciding whether to cancel the
clearance.
(5) The central assessment unit must notify the holder of a clearance in
writing of the central assessment unit's decision to cancel the
clearance.
(6) Subject to this Part, notice of the decision must set out the reasons
for the cancellation and any right to seek a review of the decision under this
Part.
(7) The central assessment unit may give written notice of the
cancellation of a clearance to any person that the central assessment unit
reasonably believes to be a notifiable person in relation to the holder of the
clearance.
18U—Cancellation of NDIS worker check clearance at
request of holder
(1) The holder of a clearance may at any time request cancellation of the
clearance by notice in writing to the central assessment unit in the form
approved by the central assessment unit.
(2) The central assessment unit must, as soon as practicable after
receiving the request, cancel the clearance except in the following
circumstances (and must refuse to cancel the clearance in those
circumstances):
(a) the clearance, or a clearance held by a person under a corresponding
law, is suspended;
(b) the central assessment unit is undertaking or is proposing to
undertake a risk assessment of the holder.
(3) The central assessment unit may give written notice of the
cancellation of a clearance under this section to any person that the central
assessment unit reasonably believes to be a notifiable person in relation to the
holder of the clearance.
Division 5—Information gathering and
sharing
Subdivision 1—Information
gathering
18V—Court to provide notice of certain findings of
guilt to central assessment unit
A court that finds a person guilty of a disqualification offence or
presumptive disqualification offence must ensure that the prescribed information
relating to the finding of guilt is provided, in accordance with the
regulations, to the central assessment unit.
18W—Commissioner of Police to provide information
to central assessment unit on charging of certain persons
Without limiting any other Act or law that requires or authorises the
Commissioner of Police to disclose information, the Commissioner of Police must
ensure that, if a police officer lays a charge of a disqualification offence or
presumptive disqualification offence against a person, the prescribed
information relating to the charge is provided to the central assessment unit as
soon as is reasonably practicable after the person is charged.
18X—Power to require information from applicant or
clearance holder
(1) The central assessment unit may, by notice in writing to an applicant
for a clearance or the holder of a clearance, request the applicant or holder to
provide relevant information about the person for an NDIS purpose.
(2) The central
assessment unit may terminate an application for a clearance or cancel a
clearance if the applicant or holder fails, without reasonable excuse, to
provide requested information within the period required for compliance with the
request (unless the central assessment unit has withdrawn the
request).
(3) The period required for compliance with a request for information is
the period of not less than 7 days specified by the central assessment unit in
the request (however the central assessment unit may extend and further extend
the period required for compliance with the request).
(4) The central assessment unit must, as soon as practicable after
terminating an application or cancelling a clearance under this section, give
written notice of the termination or cancellation to the applicant or holder of
the clearance.
(5) The central assessment unit may give written notice of the termination
of an application or cancellation of a clearance under this section to any
person that the central assessment unit reasonably believes to be a notifiable
person in relation to the applicant or holder.
18Y—Power to require information from other
persons
(1) The central
assessment unit may, by notice in writing, for the purposes of—
(a) determining an application for a clearance or a risk assessment of an
applicant or the holder of a clearance; or
(b) a review of a decision in accordance with this Part,
require a specified person to provide to the central assessment unit within
a specified period such information or documents in their possession as may be
relevant to an assessment of whether a specified person poses a risk of harm to
people with disability.
(2) If a person fails to comply with a requirement under
subsection (1)
, the central assessment unit may, by further notice in writing served on
the person (an enforcement notice), direct the person to comply
with a notice under
subsection (1)
within the period (being not less than 28 days) specified in the
notice.
(3) The central assessment unit may revoke an enforcement notice at any
time.
(4) A person who fails, without reasonable excuse, to comply with an
enforcement notice is guilty of an offence.
Maximum penalty: $50 000.
(5) If documents are given to the central assessment unit under this
section, the central assessment unit—
(a) may take possession of, and make copies of or take extracts from, the
documents; and
(b) may keep possession of the documents for such period as is reasonably
necessary; and
(c) during that period must permit them to be inspected at all reasonable
times by the persons who would be entitled to inspect them if they were not in
the possession of the central assessment unit.
Subdivision 2—Information sharing and
use
18Z—Central assessment unit may disclose etc
information with other jurisdictions
(1) Despite a provision of this or any other Act or law, the central
assessment unit is authorised to receive and make use of information relevant to
the functions of the central assessment unit under this Part from any person or
body in this or any other jurisdiction.
(2) Despite a provision of this or any other Act or law, the central
assessment unit is authorised to disclose information (not being information
classified by the Commissioner of Police as criminal intelligence) in the
possession of the central assessment unit to a prescribed person or body in
another State or Territory for an NDIS purpose.
(3) In this section—
prescribed person or body means—
(a) a person or body whose official function consists of or includes the
screening of persons who work with people with disability (however described);
or
(b) any other person or body prescribed by the regulations for the
purposes of this paragraph.
18ZA—Access to police
information
(1) The Commissioner of Police is authorised to disclose the following
information for the purpose of the use of the information in assessing and
determining whether a person who engages or proposes to engage in NDIS work
poses a risk of harm to persons with disability:
(a) information relating to any matter that may cause a person to be a
disqualified person or require a risk assessment of a person under this Part or
a corresponding law;
(b) information relating to the criminal history of a person;
(c) without limiting a preceding paragraph, information relating to the
circumstances of an offence or other matter disclosed under this
section.
(2) The disclosure of information under this section is limited to
disclosure to any of the following:
(a) the central assessment unit;
(b) an interstate screening agency;
(c) the Australian Criminal Intelligence Commission;
(d) a law enforcement agency of the Commonwealth or another State or
Territory.
(3) A person to whom information is disclosed under this section may
disclose that information to an interstate screening agency for the purposes of
the use of the information in assessing and determining whether a person who
engages or proposes to engage in NDIS work poses a risk of harm to persons with
disability.
(4) Information relating to a person's criminal history may be disclosed
under this section whether or not the information relates to offences that cause
or may cause the person to be a disqualified person or require a risk assessment
of the person under this Part or a corresponding law.
(5) This section does not limit the persons to whom, or the circumstances
in which, information relating to the criminal history, including the criminal
record, of persons may be disclosed apart from this Part.
(6) This section does not limit the powers of the Commissioner of Police
to disclose relevant information as an authorised person under this
Part.
(7) In this section—
interstate screening agency means a person or body exercising
functions in the execution or administration of a corresponding law.
18ZB—Provision of information to central assessment
unit
(1) Despite a provision of this or any other Act or law, a person or body
(including, to avoid doubt, a State authority or public sector employee within
the meaning of the
Public
Sector Act 2009
) may provide to the central assessment unit any information that the
person or body reasonably believes is relevant to the functions of the central
assessment unit under this Part.
(2) A person or body incurs no civil or criminal liability in respect of
the provision of information to the central assessment unit in good faith and
without negligence under this section.
18ZC—Provision of information to NDIS employers and
participants
Without limiting any other provision of this Part, the central assessment
unit may provide the following information about a person to an NDIS employer or
participant who engages or proposes to engage the person to do NDIS
work:
(a) information relevant to 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 Part or a corresponding law;
(c) such other information as may be prescribed by the regulations for the
purposes of this paragraph.
18ZD—Power to retain information etc
indefinitely
(1) The central assessment unit may keep information, documents or other
records received by the central assessment unit under this Part indefinitely
(however, nothing in this subsection requires the central assessment unit to do
so).
(2) The central assessment unit may, in accordance with any requirements
set out in the regulations, dispose of information, documents or other records
received by the central assessment unit under this Part.
Subdivision 3—Miscellaneous
18ZE—Notification by reporting bodies of conduct
requiring risk assessment
(1) A reporting body
must notify the central assessment unit of the name and other identifying
particulars of any person against whom the reporting body has made a finding
that the person has engaged in conduct that constitutes circumstances prescribed
by the regulations as requiring a risk assessment of the person.
(2)
Subsection (1)
does not apply in relation to findings made before the commencement of
this section (however, a reporting body may, but need not, notify the central
assessment unit of any such finding made before the commencement of this
section).
(3) A notification under
subsection (1)
must be made in a manner and form determined by the central assessment
unit.
(4) A reporting body may amend or withdraw a notification under this
section at any time by notice in writing to the central assessment
unit.
(5) The regulations may make provision—
(a) requiring the provision by reporting bodies of further particulars of
any conduct in respect of which a finding is notified under this section;
or
(b) requiring the keeping of records by reporting bodies of information
about findings required to be notified under this section.
(6) In this section—
reporting body means—
(a) a State authority that is prescribed by the regulations for the
purposes of this section; or
(b) a registration or other licensing authority that is constituted under
an Act and that is prescribed by the regulations for the purposes of this
section; or
(c) any other employer or professional or other body that supervises the
conduct of an employee and that is prescribed by the regulations for the
purposes of this section.
18ZF—Information sharing for national register or
database
Despite a provision of this or any other Act or law, the central assessment
unit may disclose information obtained in the operation or administration of
this Part to an authorised person for the purpose of providing relevant
information for entry in a national register or database established under the
NDIS Act.
18ZG—Information sharing for research, monitoring
and auditing purposes
Despite a provision of this or any other Act or law, the central assessment
unit may disclose information obtained in the operation or administration of
this Part to an authorised person for the purpose of providing relevant
information for use for the purposes of research into the operation of a
relevant law, or auditing of compliance with such laws.
18ZH—Disclosure of information about
offences
(1) An authorised person may disclose to a law enforcement agency of the
State or any other jurisdiction (including a jurisdiction outside Australia) any
information obtained as a result of the exercise of a function under this Part
that indicates that a relevant offence may have been committed or that
constitutes evidence of a relevant offence.
(2) In this section—
relevant offence means a disqualification offence or
presumptive disqualification offence, or any other offence prescribed by the
regulations for the purposes of this definition.
18ZI—Disclosure of information to prevent
significant harm
Despite a provision of this or any other Act or law, an authorised person
may disclose to an appropriate person or body any information obtained in the
operation or administration of this Part if there are reasonable grounds to
suspect that there is a risk of significant harm to a person with disability, or
to a child or other vulnerable person, or to a class of such persons, and the
disclosure is reasonably necessary to prevent that harm.
Division 6—Review of decisions by South
Australian Civil and Administrative Tribunal
18ZJ—Review of decisions by South Australian Civil
and Administrative Tribunal
(1) The South Australian Civil and Administrative Tribunal is, by force of
this section, conferred with jurisdiction to deal with matters consisting of the
review of a reviewable decision.
(2) Subject to this
section, an application for review of a reviewable decision may be made to the
South Australian Civil and Administrative Tribunal within 14 days after the
applicant receives notice of the relevant decision (or such longer period as the
Tribunal may allow).
(3) An application for
review of a decision to suspend a clearance cannot be made until the suspension
has been in force for at least 6 months.
(4) The South Australian Civil and Administrative Tribunal may only allow
an extension of time under
subsection (2)
if satisfied that—
(a) special circumstances exist; and
(b) another party will not be unreasonably disadvantaged because of the
delay in commencing the proceedings.
(5) In this section—
non-reviewable decision—the following decisions are
non-reviewable decisions:
(a) a decision to issue an exclusion, or to cancel a clearance, where the
applicant or holder is a disqualified person;
(b) a decision to issue an exclusion, or to cancel a clearance, where the
applicant or holder is a presumptively disqualified person as a result of there
being pending criminal charges against the person;
(c) any other decision under this Part of a kind declared by the
regulations to be included in the ambit of this definition;
reviewable decision—the following decisions (other than
a decision that is a non-reviewable decision) are reviewable
decisions:
(a) a decision to issue an exclusion;
(b) a decision to terminate an application for a clearance;
(c) a decision to suspend a clearance;
(d) a decision to cancel a clearance (other than a cancellation at the
request of the holder of the clearance);
(e) any other decision under this Part of a kind declared by the
regulations to be included in the ambit of this definition.
Division 7—Miscellaneous
18ZK—Fee payable where volunteer undertakes paid
employment
(a) a clearance is granted in respect of a person; and
(b) the person satisfies the central assessment unit that the person is a
volunteer and so pays no fee in relation to the clearance; and
(c) the person uses that clearance to perform NDIS work other than as a
volunteer,
the person must, unless the fee is waived by the central assessment unit,
pay to the central assessment unit the prescribed fee.
(2) A payment under
subsection (1)
must be made as soon as is reasonably practicable (and in any case within
28 days) after the person commences NDIS work other than as a
volunteer.
(3) A person who fails to comply with
subsection (1)
is guilty of an offence.
Maximum penalty: $5 000.
Expiation fee: $315.
(4) However, a failure to comply with
subsection (1)
does not affect the validity of a clearance.
18ZL—Effect of Part on other rights and
procedures
(1) Subject to this section, nothing in this Part affects any statutory
right that an employee may have in relation to employment or termination of
employment.
(2) However, any court or tribunal exercising jurisdiction with respect to
any such right must have regard to the results of any determination of an
application for a clearance or risk assessment carried out under this Part in
connection with the work concerned and 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 South Australian
Employment Tribunal and any other court or tribunal will be 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
Part.
18ZM—Limitation of liability
Except as is specifically provided in this Part, no civil or criminal
liability attaches to—
(a) the central assessment unit or any other person exercising powers and
functions under this Part; or
(b) the Crown,
in respect of an act or omission in good faith in the performance or
exercise, or purported performance or exercise, of a function or power under
this Part.
18ZN—False or misleading
statements
A person must not make a statement knowing that it is false or misleading
in a material particular (whether by reason of the inclusion or omission of a
particular) in information provided under this Part.
Maximum penalty: $20 000.
18ZO—Evidentiary provision
In any legal proceedings, a certificate issued by the central assessment
unit and certifying that, on a specified day or within a specified
period—
(a) a specified person was, or was not, the holder of an NDIS worker check
clearance; or
(b) a specified person was, or was not, the subject of an NDIS worker
check exclusion; or
(c) a specified person had, or had not, made an application for an NDIS
worker check clearance; or
(d) an NDIS worker check clearance held by a specified person was, or was
not, suspended; or
(e) an NDIS worker check clearance held by a specified person was, or was
not, cancelled,
must be accepted as proved in the absence of evidence to the
contrary.
18ZP—Failure to give notice of
decisions
A failure to give notice of a decision as required by this Part does not,
of itself, affect the validity or effect of the decision.
18ZQ—Central assessment unit may seek external
advice
(1) Despite a
provision of this or any other Act or law, the central assessment unit may, in
relation to any decision or determination under this Part, seek such medical,
legal or other professional advice as it thinks necessary or appropriate to make
the decision or determination.
(2) Without limiting
subsection (1)
, the regulations may provide for the establishment of an advisory panel to
advise or assist the central assessment unit in the performance of its functions
under this Part.
21—Amendment
of section 19—Interpretation
(1) Section 19(1)—before the definition of excluded
person insert:
assessable information means information declared by the
regulations to be assessable information for the purposes of this
Part;
(2) Section 19(1)—after the definition of prohibition
notice insert:
records management system means the records management system
established under section 22D;
(3) Section 19(1)—after the definition of screening
check insert:
unique identifier, in relation to a person, means the unique
identifier issued or recognised in respect of the person under the
regulations.
22—Insertion
of sections 22A to 22E
After section 22 insert:
22A—Steps employers must take before employing
person in prescribed position
(1) An employer
must not employ a person in a prescribed position unless the employer
has—
(a) obtained from the person their full name, address, date of birth and
unique identifier; and
(b) verified, in
accordance with the regulations, that—
(i) a screening check has been conducted in relation to the person within
the preceding 5 years; and
(ii) the person is not a prohibited person; and
(c) provided to the central assessment unit—
(i) the name, address, telephone number and email address of the business
at which the person is to be employed; and
(ii) the name and contact details of the person who verified the matters
referred to in
paragraph (b)
.
Maximum penalty: $50 000.
(2)
Subsection (1)
does not apply in relation to a prospective employee who is an excluded
person.
22B—Employer to ensure screening check conducted at
least every 5 years
(1) An employer
must not continue to employ a person in a prescribed position unless a screening
check has been conducted in relation to the person within the preceding
5 years.
Maximum penalty: $50 000.
(2) An employer who
employs a person in a prescribed position must, at least once in every
5 year period, verify, in accordance with the regulations,
that—
(a) a screening check has been conducted in relation to the person within
the preceding 5 years; and
(b) the person is not a prohibited person.
Maximum penalty: $50 000.
(3)
Subsections (1)
and
(2)
do not apply in relation to an employee who is an excluded
person.
22C—Employer to advise central assessment unit of
certain information
(1) The employer of
a person employed in a prescribed position must notify the central assessment
unit if—
(a) the employer becomes aware of any assessable information in relation
to the person; or
(b) the employer becomes aware that the person is prohibited from working
with people with disability under a law of the Commonwealth, or of another State
or Territory.
(2) A notice under
subsection (1)
—
(a) must be given in a manner and form determined by the central
assessment unit; and
(b) must be given as soon as is reasonably practicable after the employer
becomes aware of the relevant matter; and
(c) must contain the information required by the regulations for the
purposes of this paragraph.
(3) An employer must not refuse or fail to comply with
subsection (1)
.
Maximum penalty: $25 000.
(4)
Subsection (1)
does not apply in relation to an employee who is an excluded
person.
22D—Records management system
(1) Subject to this section, the Registrar must establish and maintain a
records management system for the purposes of this Act.
(2) The records management system must include the information required by
the regulations, and may contain such information as the Registrar thinks
appropriate.
(3) The Registrar must correct an entry in the records management system
that is not, or has ceased to be, correct.
(4) The Registrar must ensure that the records management system is such
as to enable a person to inspect the records management system in accordance
with the regulations.
(5) The Registrar must ensure that the records management system is such
as to enable a person to obtain, in accordance with any requirements set out in
the regulations, evidence of the fact that the person has inspected or
interrogated the records management system.
(6) The Registrar must ensure that the records management system is such
as to enable a person to whom a unique identifier is issued to obtain without
charge that identifier, or evidence of that identifier.
(7) The records management system under this Part may be combined with the
records management system under the
Child
Safety (Prohibited Persons) Act 2016
.
22E—Inspection of records management
system
(1) The Registrar must ensure that the central assessment unit has direct
and unrestricted access to the records management system for the purposes of its
functions under this Act.
(2) The records management system may be inspected (without charge) by any
person.
(3) A person who interrogates the records management system under this Act
must be provided with evidence of that fact in accordance with the
regulations.
(4) The regulations may make further provision in respect of inspection of
the records management system (including provisions limiting access to specified
parts of the system, or to information of a specified kind).
23—Amendment
of section 23—Regulations to set out scheme for screening
checks
(1) Section 23(2)—after paragraph (d) insert:
(da) recognising NDIS worker check clearances or NDIS worker check
exclusions (both within the meaning of Part 5A) as a screening check or
prohibition notice for the purposes of this Part;
(2) Section 23(2)—after paragraph (e) insert:
(ea) imposing requirements relating to the provision of information to the
central assessment unit, and the disclosure and use of such
information;
24—Amendment
of section 33—Regulations
(1) Section 33(2)(c)—delete "$10 000" and substitute:
$50 000
(2) Section 33(3)(c)—after "enactment" insert:
or amendment
After Schedule 1 insert:
Schedule 2—Transitional provisions relating to NDIS
worker check clearances
1—Interpretation
(1) In this Schedule, unless the contrary intention
appears—
assessment of relevant history means an assessment of
relevant history conducted under the
Disability
Services Act 1993
(as in force immediately before the commencement of this section) by an
authorised screening unit;
authorised screening unit means a person or body who was, at
the relevant time, an authorised screening unit within the meaning of the
Disability
Services (Assessment of Relevant History) Regulations 2014
;
(2) Unless the contrary intention appears, a term or phrase used in this
Schedule that is defined in Part 5A of the Act has the same meaning as in that
Part.
2—Certain applications for assessments of relevant
history taken to be application for NDIS worker check
clearance
(1) This section applies to an application for an assessment of relevant
history made to an authorised screening unit before the commencement of this
clause but not determined before such commencement.
(2) An application to which this section applies will, for the purposes of
the Part 5A of the Act, be taken to be an application to the central assessment
unit for an NDIS worker check clearance under that Part.
3—Recognition of certain assessments of relevant
history as NDIS worker check clearance
(1) An assessment
of relevant history clearing a specified person to work with people with
disability (however described) conducted within the 3 years preceding the
commencement of this clause will be taken to be an NDIS worker check clearance
in respect of the person granted under Part 5A of the Act.
(2) However, this section ceases to apply to an NDIS worker check
clearance referred to in
subclause (1)
in respect of a person if any of the following occurs:
(a) the person becomes a prohibited person (within the meaning of Part 6)
or a disqualified or presumptively disqualified person; or
(b) an NDIS worker check clearance is conducted in relation to the person
under Part 5A of the Act, or under a law of the Commonwealth or another State or
Territory; or
(c) 3 years elapses after the date on which the assessment of relevant
history to which the NDIS worker check clearance relates was
undertaken,
and the NDIS worker check clearance will, by force of this clause, be
cancelled.