1Short title
This Act may be cited as the National Disability Insurance Scheme (Worker Clearance) Act 2020.
Bills and explanatory statements from legislation.nt.gov.au; second reading speeches from the NT Parliamentary Record (Territory Stories). Links open the official source in a new tab.
Bill homepage (legislation.nt.gov.au)This Act may be cited as the National Disability Insurance Scheme (Worker Clearance) Act 2020.
This Act commences on the day fixed by the Administrator by Gazette notice.
The objects of this Act are to provide for screening checks intended to protect participants from harm arising from poor quality or unsafe supports or services under the NDIS by:
demonstrating that the rights of participants to be safe and protected are a high community priority; and
reducing the potential for providers of NDIS funded supports and services to engage individuals who pose an unacceptable risk of harm to participants; and
prohibiting individuals who have a history of harm against participants from having more than incidental contact with participants when working for a provider of NDIS funded supports and services; and
deterring individuals who pose an unacceptable risk of harm to participants from seeking NDIS work.
Screening checks are to be guided by the following principles:
human rights – the paramount consideration is the right of participants to live their lives free from abuse, violence, neglect and exploitation, consistent with the United Nations
Convention on the Rights of Persons with Disabilities;
duty of care – providers of NDIS funded supports and services have the primary responsibility for ensuring that they do not engage unsuitable people and that their employees are not acting or behaving in any way that puts participants at risk of harm;
screening is risk-based – decisions are made based on the potential risk an individual poses to participants after assessing the details of a range of relevant information;
proportionality – only employees whose role provides a significant opportunity for harm to participants are required to undergo screening;
consistency – ensuring the screening check delivers the same outcome, regardless of the jurisdiction in which the assessment was conducted;
privacy and appropriate use of information – information about an individual, obtained in the course of conducting screening checks, is not used for an improper purpose and is protected from inappropriate disclosure;
natural justice – procedural fairness and transparency, ensuring screening check processes are independent and fair;
efficiency and effectiveness – streamlined screening processes for employees of providers of NDIS funded supports and services who operate across jurisdictions, with a single screening process for all employees.
This Act binds the Crown in right of the Territory and, to the extent the legislative power of the Legislative Assembly permits, the Crown in all its other capacities.
This Act applies to and in relation to a person who, under Part 2 of the National Disability Insurance Scheme (Practice Standards –
Worker Screening) Rules 2018 (Cth), is required to have an NDIS worker clearance.
Note for section 6
Rule
14(c) of the National Disability Insurance Scheme (Practice Standards
– Worker Screening) Rules 2018 (Cth) provides that a person is not required to have a clearance if the person is:
(a) a secondary school student on a formal work experience placement with a registered NDIS provider; and
(b) directly supervised by a worker of the provider who has a clearance.
In this Act:
adult means a person who is 18 years of age or older.
affected person, see section 42(2).
Agency, see section 18A of the Interpretation Act 1978.
applicant means an applicant for a screening check under this Act.
approved form means a form approved under section 57.
authorised person means the following:
the Screening Agency;
(b) an organisation or body performing screening checks in a State or another Territory;
(c) a person performing functions or exercising powers under this Act or a corresponding law;
the NDIS Commission;
(e) a law enforcement agency of the Territory or another jurisdiction, including outside of Australia;
any other person, organisation or body prescribed by regulation.
authorised purpose, see section 45.
CEO means the Chief Executive Officer of the Agency administering this Act.
child means a person who is under 18 years of age.
clearance means an NDIS worker clearance granted by the Screening Agency for a person to engage in NDIS work for a registered NDIS provider or an NDIS provider.
clearance holder means a person who holds a clearance under this Act or a corresponding law to engage in NDIS work.
corresponding law is a law of a State or another Territory that corresponds with this Act and includes a law that is prescribed by regulation as a corresponding law.
criminal intelligence, see section 6 of the Serious Crime Control Act 2009.
decision notice, for a decision, means a written notice setting out:
the decision and the reasons for it; and
(b) any right the person to whom the notice is to be given has, under this Act or another Act, to apply for a review of, or to appeal, the decision.
Note for definition decision notice
The Northern Territory Civil and Administrative Tribunal Act 2014 sets out the requirements of a decision maker after the decision maker has made an NTCAT reviewable decision under this Act.
disqualified person means a person who, as an adult, committed a disqualifying offence.
disqualifying offence means an offence prescribed by regulation as a disqualifying offence.
engage, in relation to a person, means in any of the following capacities:
as a paid or unpaid employee;
as a self-employed person or a contractor or subcontractor;
as a volunteer.
excluded, in relation to a person, see section 29.
interim bar, see rule 5 of the National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018 (Cth).
more than incidental contact, see section 8.
NDIS Act means the National Disability Insurance Scheme Act 2013 (Cth) and includes the rules under that Act.
NDIS Code of Conduct means the National Disability Insurance Scheme (Code of Conduct) Rules 2018 made under the NDIS Act.
NDIS Commission means the NDIS Quality and Safeguards Commission established under the NDIS Act.
NDIS provider means a provider of NDIS funded supports and services under the NDIS Act.
NDIS work, see section 9.
non-conviction charge means proceedings that have been commenced against a person as an adult or a child in relation to a charge, but were not finally determined because the proceedings were discontinued.
Examples for definition non-conviction charge
Examples for a non-conviction charge include the following proceedings:
(a) a proceeding that was withdrawn;
(b) a proceeding that was the subject of a nolle prosequi, a no true bill or a submission of no evidence to offer;
(c) a proceeding that led to a conviction that was quashed on appeal or on which a person was acquitted or disposed of by a court otherwise than by way of conviction.
NTCAT reviewable decision, see section 43(1).
ongoing monitoring, see section 27.
participant, see section 9 of the NDIS Act.
pending charge means a current charge for a criminal offence that has not yet been determined, whether the person is being dealt with as an adult or a child.
presumed disqualifying offence means an offence prescribed by regulation as a presumed disqualifying offence.
presumed disqualified person, see section 10.
registered NDIS provider means a provider of NDIS funded supports and services registered under the NDIS Act.
reviewable decision, see section 42(1).
risk assessed role, see section 11.
risk assessment, see section 34.
Screening Agency means the person or Agency declared by the Minister under section 13.
screening check means an NDIS worker screening check undertaken by the Screening Agency to assess whether an applicant is eligible to hold a clearance.
spent conviction means a conviction which, in accordance with the Criminal Records (Spent Convictions) Act 1992, no longer forms part of a person’s criminal history.
Tribunal affected person, see section 43(2).
volunteer, see section 12.
Note for subsection (1)
The Interpretation Act 1978 contains definitions and other provisions that may be relevant to this Act.
(2) A term defined in the NDIS Act has the same meaning in this Act unless separately defined for this Act.
(1) Without limiting what may constitute more than incidental contact, the normal duties of a role are likely to require more than incidental contact with a participant if those duties include:
physically touching a participant; or
(b) building a rapport with a participant as an integral and ordinary part of the performance of those duties; or
having contact with multiple participants:
(i) as part of the direct delivery of a specialist disability support or service; or
in a specialist disability accommodation setting.
Examples for subsection (1)
1 The role of an employee involves the delivery of mobility equipment to the homes of participants. As a standard part of that role, the employee provides training and instructions to the participant about how to use the equipment safely and makes adjustments to the equipment to make it suitable for the participant. This role is likely to require more than incidental contact. This is because there is "contact" with the participant. The ordinary content of that contact (testing the participant's needs and preferences with them, talking about and responding to the nature of their disability) means that there is a level of openness and trust required on the part of the participant which would routinely involve the employee building a level of rapport with them.
2 An accountant works for a business that supplies custom prosthetics to participants, and performs only "back office" duties. The accountant has coincidental contact with participants many work days, when moving through public areas of the business, at which time the accountant nods and says hello to the customers. The accountant's role does not involve more than incidental contact with participants. This is because the duties of the role do not require the accountant to have more than polite, functional contact with participants, or get to know them in any way.
In this section:
contact includes physical contact, face‑to‑face contact, oral communication, written communication and electronic communication.
(1) NDIS work means work comprising, or in connection with, the provision of supports or services by registered NDIS providers or NDIS providers to participants.
In this section:
work means 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 or NDIS provider to engage in that work; or
(b) that the Screening Agency 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.
A person who, as an adult, committed a presumed disqualifying offence is a presumed disqualified person.
A person who is the subject of pending criminal proceedings for a disqualifying offence or a presumed disqualifying offence, allegedly committed as an adult, is also a presumed disqualified person.
A presumed disqualified person must be refused a clearance unless there are exceptional circumstances.
A risk assessed role is:
a key personnel role of a person or an entity; or
(b) a role for which the normal duties include the direct delivery of specified supports or specified services to a participant; or
(c) a role for which the normal duties are likely to require more than incidental contact with a participant.
A registered NDIS provider must:
(a) assess all roles in which the provider's employees and other personnel will engage; and
identify each one that is a risk assessed role.
An NDIS provider may:
(a) assess all roles in which the provider's employees and other personnel will engage; and
identify each one that is a risk assessed role.
(4) A role is a role with a particular registered NDIS provider or NDIS provider, whether the duties of the role are performed by an employee or other personnel.
A person is a volunteer if the person:
(a) may be engaged by another person to do NDIS work as a volunteer; or
may do NDIS work as a volunteer on the person's own account.
(2) A person mentioned in subsection (1)(b) is taken to be a self‑employed person who engages themselves as a volunteer.
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