1Short title
This is the National Disability Insurance Scheme (Worker Screening) Act 2020.
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Bill homepageThis is the National Disability Insurance Scheme (Worker Screening) Act 2020.
This Act comes into operation as follows —
Part 1 — on the day on which this Act receives the Royal Assent (assent day);
the rest of the Act — on a day fixed by proclamation, and different days may be fixed for different provisions.
However —
if no day is fixed under subsection (1)(b) before the end of the period of 10 years beginning on assent day, this Act is repealed on the day after that period ends; or
if paragraph (a) does not apply, and a provision of this Act does not come into operation before the end of the period of 10 years beginning on assent day, that provision is repealed on the day after that period ends.
This Act binds the Crown in right of Western Australia and, so far as the legislative power of the Parliament permits, the Crown in all its other capacities.
In performing a function under this Act, the CEO or the State Administrative Tribunal must regard the safety and wellbeing of people with disability and, in particular, their right to live free from abuse, violence, neglect and exploitation, as the paramount consideration.
In this Act —
Aboriginal child means a child who is a descendant of the Aboriginal people of Australia;
adult means a person who has reached 18 years of age;
another jurisdiction means a jurisdiction other than this State (including jurisdictions outside Australia);
approved means approved by the CEO;
authorised officer means an officer designated under section 53 for the purposes of this Act or for the purposes of the provision in which the term is used;
authorised person means —
a person or body exercising functions in the operation or administration of a relevant law; or
the NDIS Commission; or
a law enforcement agency of this State or another jurisdiction; or
a person or body prescribed by the regulations for the purposes of this definition;
CEO means the chief executive officer of the Department;
CEO (Justice) means the chief executive officer of the department of the Public Service principally assisting in the administration of the Sentence Administration Act 2003 Part 8;
charge means a non‑conviction charge or a pending charge;
child means a person who is under 18 years of age;
Class 1 offence — see section 6(1);
Class 2 offence — see section 6(2);
Class 3 offence means an offence (including an offence under a law of another jurisdiction) that is not a Class 1 offence or a Class 2 offence;
Commissioner of Police means the person holding or acting in the office of Commissioner of Police under the Police Act 1892;
contact includes any form of face‑to‑face or physical contact, and communication, whether oral, written or electronic;
conviction — see section 7;
corresponding law means a law of another State or a Territory that —
contains provisions that substantially correspond with the provisions of this Act; and
is prescribed by the regulations as a corresponding law for the purposes of this Act;
court means a court constituted in this State or another jurisdiction;
criminal record, in relation to a person, means —
every conviction of the person for an offence in this State or another jurisdiction; and
every charge made against the person for an offence in this State or another jurisdiction;
criminal record check means the procedures set out in section 33 to enable the CEO to determine whether a person has a criminal record and, if so, to obtain related information about the person;
criminal records agency means —
the Commissioner of Police; or
the Commissioner of the Australian Federal Police; or
the Commissioner (however designated) of the police force of another jurisdiction; or
a person or body that is —
established or constituted under the law of another jurisdiction; and
prescribed by the regulations for the purposes of this definition;
Department means the department of the Public Service principally assisting the Minister in the administration of this Act;
designated person means a person who has —
applied for a clearance under this Act or a corresponding law; or
a clearance under this Act or a corresponding law; or
applied to cancel an NDIS worker check exclusion certificate under this Act or a corresponding law; or
applied for an internal review or external review under this Act or a corresponding law;
disqualified person — see section 8(1);
DPP means the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1991 section 5 or a person or body exercising functions that substantially correspond to the functions of the Director of Public Prosecutions under the law of another jurisdiction;
engage includes to engage or act in any of the following capacities —
as a paid or unpaid employee;
as a self‑employed person or as a contractor or subcontractor;
as a volunteer;
exclusion means a decision on which an NDIS worker check exclusion certificate is issued;
family member, in relation to a child, means —
a parent, grandparent, brother, sister, uncle, aunt or cousin of the child, whether the relationship is established by, or traced through, consanguinity, marriage, a de facto relationship, a written law or a natural relationship; or
for an Aboriginal child — a person regarded under the customary law or tradition of the child’s community as the equivalent of a person mentioned in paragraph (a); or
for a Torres Strait Islander child — a person regarded under the customary law or tradition of the Torres Strait Islands as the equivalent of a person mentioned in paragraph (a); or
a person determined by the CEO to be in a relationship with the child that is similar to a relationship mentioned in paragraph (a);
government agency means —
a department of the Public Service; or
a government department established or constituted under a law of another jurisdiction; or
a body, whether incorporated or not, that is established, constituted or continued for a public purpose under a written law of this State or another jurisdiction and that, under the authority of a written law of this State or another jurisdiction, performs a statutory function on behalf of this State or a government of another jurisdiction;
harm includes but is not limited to any detrimental effect on a person’s physical, sexual, psychological, emotional or financial wellbeing;
health professional means a person who is —
a health practitioner registered under the Health Practitioner Regulation National Law (Western Australia); or
in a class of persons prescribed for the purposes of this definition;
interstate screening agency means a person or body exercising functions in the operation or administration of a corresponding law that substantially correspond to the functions of the CEO under this Act;
key personnel has the meaning given in the NDIS Act section 11A;
National Disability Insurance Scheme has the meaning given in the NDIS Act section 9;
NDIS Act means the National Disability Insurance Scheme Act 2013 (Commonwealth) and includes any regulations or rules under that Act;
NDIS Commission means the NDIS Quality and Safeguards Commission established under the NDIS Act section 181A;
NDIS employer means a person who engages a person to do NDIS work;
NDIS purpose —
means any purpose that is for, or connected with, the operation or administration of, or compliance with, a relevant law (insofar as may be relevant to the National Disability Insurance Scheme); and
includes any of the following purposes —
verifying the identity of a person who is, or who has at any time been, an applicant for, or the holder of, a clearance under this Act or a corresponding law;
considering and deciding a person’s application for a clearance under this Act or a corresponding law;
assessing and determining under this Act or a corresponding law whether a person poses a relevant risk of harm;
assessing and determining whether a risk assessment of a person is required under this Act or a corresponding law;
ongoing monitoring of a person who holds a clearance under this Act or a corresponding law for the purpose of determining whether the person requires a risk assessment or poses a relevant risk of harm;
considering and deciding a person’s application for the cancellation of an NDIS worker check exclusion certificate under this Act or a corresponding law;
conducting an internal review or external review under this Act or a corresponding law;
NDIS work —
means work comprising, or connected with, the provision of supports or services to people with disability under the National Disability Insurance Scheme; and
includes work that —
is the subject of requirements under the NDIS Act for a person to have 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
is undertaken in the exercise or performance by a person of a power or duty delegated to the person by the CEO under this Act; or
the CEO is satisfied is work in respect of which it is otherwise necessary or convenient for a person to have a clearance to facilitate the person’s engagement in particular work;
but
does not include, if the regulations so provide, work that is carried out in circumstances, or by a person, prescribed by the regulations for the purposes of this definition;
NDIS worker check clearance or clearance means a clearance granted under section 15(1) or 28(7) or under a corresponding provision under a corresponding law (however a clearance may be described under the corresponding law);
NDIS worker check clearance certificate means a certificate issued on the granting of a clearance;
NDIS worker check exclusion certificate means a certificate issued under section 15(4) or 25(11) or (14) or under a corresponding provision under a corresponding law (however such a certificate may be described under the corresponding law);
non‑conviction charge means a charge for an offence that has been disposed of by a court otherwise than by way of a conviction, and has a meaning affected by subsection (5);
notifiable person, in relation to an applicant for a clearance or the holder of an NDIS worker check clearance certificate under this Act, means —
any person who proposes to engage, or who engages, the applicant or holder in NDIS work, as has been made known to the CEO under, or for the purposes of, this Act; or
any other person prescribed by the regulations for the purposes of this definition;
officer means a person employed in, or engaged by, the Department whether as a public service officer under the Public Sector Management Act 1994, under a contract for services, or otherwise;
pending charge means a charge for an offence that has not yet been disposed of by a court;
presumptively disqualified person — see section 8(2);
public authority means —
a department of the Public Service; or
a body, whether incorporated or not, that is established, constituted or continued for a public purpose under a written law and that, under the authority of a written law, performs a statutory function on behalf of this State; or
an entity established by or under the Health Practitioner Regulation National Law (Western Australia); or
any other entity prescribed by the regulations for the purposes of this definition;
relevant information, in relation to a person, means —
information relevant to verifying the identity of the person; or
information about the person disclosed in an application for a clearance, or for the cancellation of an NDIS worker check exclusion certificate, under this Act or a corresponding law; or
information relating to the person’s criminal record, and any other information relating to the person that is connected with, or otherwise related to, a conviction or charge mentioned in a criminal record; or
information about workplace misconduct by the person in this or another jurisdiction, being misconduct that concerns persons to whom a relevant risk of harm relates; or
information about any order imposed on the person by a court or tribunal relating to child protection, apprehended violence or domestic or family violence in this or another jurisdiction; or
information relevant to determining whether the person requires a risk assessment under this Act or a corresponding law; or
information about the person’s clearance history; or
information about any current or past engagement of the person by an NDIS employer in this State or another State or a Territory; or
other information relevant to determining whether the person poses a relevant risk of harm; or
information about —
the status of any application under this Act; or
any process or step that is being taken, or has been taken, under a relevant law; or
any certificate held, suspended or cancelled under this Act or a corresponding law; or
any interim bar imposed under this Act or a corresponding law;
or
any other information prescribed by the regulations for the purposes of this definition;
relevant law means —
this Act; or
a corresponding law; or
the NDIS Act;
relevant risk of harm means risk of harm to people with whose protection a relevant law is concerned;
risk assessed role means —
a key personnel role of a person or an entity; or
a role for which the normal duties include the direct delivery of specified supports or specified services to a person with disability; or
a role for which the normal duties are likely to require more than incidental contact with a person with disability;
risk assessment has the meaning given in section 17(1);
Torres Strait Islander child means a child who is a descendant of the indigenous inhabitants of the Torres Strait Islands;
unacceptable risk means the risk described in section 17;
vulnerable person means an adult who is, or may be, unable to care for themselves, or unable to protect themselves from harm or exploitation, due to age, illness or disability.
For the purposes of this Act —
a self‑employed person who does NDIS work will be taken to be an NDIS employer who engages themselves to do that work; and
a person may do NDIS work as a volunteer in their own right and, in this case, the person is taken to be self‑employed as a volunteer.
For the purposes of the definition of relevant information in subsection (1), a person’s clearance history is the history of action taken under a relevant law in respect of —
an application for a clearance by the person, or a clearance granted to the person under this Act or a corresponding law, including any risk assessment, determination, imposition of an interim bar, refusal of an application, or suspension or cancellation of an NDIS worker check clearance certificate under this Act or a corresponding law; or
an application for the cancellation of an NDIS worker check exclusion certificate under this Act or a corresponding law.
For the purposes of the definition of risk assessed role in subsection (1), and 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 person with disability if those duties include —
physically touching a person with disability; or
building a rapport with a person with disability as an integral and ordinary part of the performance of those duties; or
having contact with multiple people with disability —
as part of the direct delivery of a specialist disability support or service; or
in a specialist disability accommodation setting.
A reference in this Act to a non‑conviction charge includes a reference to an expunged conviction as defined in the Historical Homosexual Convictions Expungement Act 2018 section 3(1).
Subsection (5) applies despite anything in the Historical Homosexual Convictions Expungement Act 2018.
Except where the contrary intention appears, a term used in this Act that is defined in the NDIS Act has the same meaning in this Act as it has in that Act.
A Class 1 offence is —
an offence against a provision listed in Schedule 1 (if the offence complies with any condition specified in that Schedule or prescribed by the regulations); or
an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; or
an offence under a law of this State or another jurisdiction that is prescribed by the regulations to be a Class 1 offence; or
an offence that, at the time it was committed or alleged to have been committed —
was a Class 1 offence for the purposes of this Act; or
in the case of an offence committed, or alleged to have been committed, before the commencement of this section — was an offence of a kind referred to in this subsection;
or
an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in paragraphs (a) to (d).
A Class 2 offence is —
an offence against a provision listed in Schedule 2 (if the offence complies with any condition specified in that Schedule or prescribed by the regulations); or
an offence under a law of another jurisdiction the elements of which, if they had occurred in this State, would have constituted an offence of a kind referred to in this subsection; or
an offence under a law of this State or another jurisdiction that is prescribed by the regulations to be a Class 2 offence; or
an offence that, at the time it was committed or alleged to have been committed —
was a Class 2 offence for the purposes of this Act; or
in the case of an offence committed, or alleged to have been committed, before the commencement of this section — was an offence of a kind referred to in this subsection;
or
an offence of attempting, or of conspiracy or incitement, to commit an offence of a kind referred to in paragraphs (a) to (d).
An offence ceases to be classified as a Class 1 offence or a Class 2 offence if a pardon is granted in relation to the offence.
For the purposes of Schedule 1 or 2, an offence falls within the ambit of this subsection if —
the victim of the offence is a child who has reached 14 years of age; and
the age difference between the victim and the offender does not exceed 5 years.
For the purposes of this Act, a reference to a conviction, in relation to an offence committed by a person, is a reference to any of the following —
a court making a formal finding of guilt in relation to the offence;
a court convicting the person of the offence, if there has been no formal finding of guilt before conviction;
a court accepting a plea of guilty from the person in relation to the offence;
a court acquitting the person following a finding under The Criminal Code section 27 that the person is not guilty of the offence on account of mental impairment or an acquittal following an equivalent finding under a law of another jurisdiction;
a finding under the Criminal Law (Mental Impairment) Act 2023 section 41(2)(c) or an equivalent finding under a law of another jurisdiction.
For the purposes of this Act, a reference to a conviction includes a reference to a conviction that is a spent conviction.
For the purposes of subsection (2), an offence becomes spent if, under a law of this State or another jurisdiction, the person concerned is permitted not to disclose the fact that the person was convicted or found guilty of the offence.
For the purposes of this Act, a reference to a conviction does not include a reference to a conviction that is subsequently quashed or set aside by a court.
[Section 7 amended: No. 10 of 2023 s. 390 and 412.]
For the purposes of this Act, a person is a disqualified person if the person has a conviction for a Class 1 offence committed by the person when an adult.
For the purposes of this Act, a person is a presumptively disqualified person if —
there is a pending charge against the person for an offence that is a Class 1 offence or a Class 2 offence alleged to have been committed by the person when an adult; or
the person has a conviction for a Class 2 offence committed by the person when an adult; or
the person —
has a conviction for a Class 3 offence committed by the person when an adult; and
the offence was committed against, towards, or in the presence of, a child or vulnerable person; and
the CEO reasonably believes that in the course of committing the offence the person performed an indecent act.
This Act extends to conduct and circumstances occurring before the commencement of this section.
References in this Act to convictions and charges extend to —
convictions and charges that relate to events that occurred when a person was a child; and
convictions and charges that occurred or were laid before the commencement of this section.
Subject to subsection (2), a person may apply to the CEO for an NDIS worker check clearance in accordance with this section if the person is engaged, or proposed to be engaged, in NDIS work.
An applicant must —
reside, or intend to reside, in this State; or
undertake, or intend to undertake, NDIS work in this State.
The application must be —
in the approved form; and
accompanied by the fee prescribed by the regulations.
The approved form must include provision for information —
for the purposes of identifying the applicant; and
about the person who has engaged, or who is proposing to engage, the applicant in NDIS work.
The approved form may require the provision of such other information as the CEO thinks fit.
The approved form may also provide for authorisation by the applicant of, and consent by the applicant to, the following —
the making of inquiries about the applicant by the CEO for an NDIS purpose;
the obtaining of relevant information about the applicant by the CEO from any person or body for an NDIS purpose;
the disclosure of relevant information about the applicant by the CEO to any person or body for an NDIS purpose.
An authorisation or consent under this section is not limited to operating for the purposes of an application for a clearance and extends to the making of inquiries, and the obtaining and disclosure of information or documents, in connection with and for the purposes of the ongoing monitoring of the holder of a clearance.
An authorisation or consent under this section does not require the applicant to be given notice of the making of inquiries or the obtaining or disclosure of information or documents pursuant to the authorisation or consent.
On receiving an application, the CEO may ask the applicant, by written notice or otherwise, to provide any further information or documents, within a reasonable specified period, that the CEO reasonably needs for the proper consideration of the application.
The regulations may prescribe —
other requirements that apply in relation to an application or the consideration of an application; and
circumstances where an application is taken to be cancelled.
A person must not apply for a clearance if the person —
is a disqualified person who has been refused a clearance, or has had a clearance cancelled, under this Act or a corresponding law; or
has made an application for a clearance under this Act or a corresponding law and that application is pending; or
currently has a clearance under this Act or a corresponding law, unless the application is made no more than 3 months before the expiry of the clearance or as provided by section 23(1)(c); or
is subject to a 5‑year ban on applying for a clearance following refusal or cancellation of a clearance, as provided by subsection (2).
Subject to subsection (3), a person who has had a clearance refused or cancelled under this Act or a corresponding law is not entitled to apply for a clearance for 5 years following the refusal or cancellation.
Subsection (2) does not apply in relation to a cancellation that was made —
at the request of the person under this Act or a corresponding law; or
by the CEO acting under section 25(2) or 38(2) or an interstate screening agency acting under an equivalent provision under a corresponding law.
This section does not limit the operation of section 28.
An application for a clearance made in accordance with this Part cannot be determined until the CEO has, in respect of the applicant —
carried out a criminal record check; and
considered any information provided by the NDIS Commission in relation to the applicant.
Subsection (1) does not limit —
any other step or inquiry that the CEO may take under this Act before determining an application for a clearance; or
any other process or requirement under this Act as to the assessment of an application for a clearance.
An application for a clearance must be refused by the CEO if —
the applicant is a disqualified person (and in such a case a risk assessment will not be conducted under Division 2); or
a risk assessment of the applicant is conducted under Division 2 and the CEO determines that there is an unacceptable risk that the applicant may cause harm to people with disability in the course of carrying out NDIS work.
The CEO may suspend consideration of an application pending the outcome of any process, step or inquiry under a corresponding law.
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