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House of Representatives

Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)

Outline

This Bill contains amendments to Part VIIC of the Crimes Act 1914 (Crimes Act). Part VIIC of the Crimes Act governs the disclosure and non-disclosure of pardons, quashed and 'spent' convictions and provides that certain types of offences become spent after a waiting period has elapsed in which no further convictions are recorded against the offender. Subject to a number of exclusions listed in section 85ZZH of the Crimes Act, Part VIIC provides that where a conviction for an offence is spent, pardoned or quashed, the offender does not have to disclose the fact of the conviction, and prohibits others from disclosing the conviction without the person's consent and from taking the conviction into account.

The amendments in this Bill would create an exception for convictions of persons who work, or seek to work, with people with disability in the National Disability Insurance Scheme (NDIS) so that those convictions can be disclosed to, and taken into account by, Commonwealth, State and Territory agencies, to enable State and Territory worker screening units to determine whether the person is suitable to work with people with disability in the NDIS.

Financial impact statement

This Bill will be implemented within existing resources.

STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

The statements of compatibility with human rights appears at the end of this explanatory memorandum.

Notes on Clauses

Clause 1 sets out how the new Act is to be cited - that is, as the Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Act 2018.

Clause 2 provides a Schedule for commencement. Sections 1 to 3 (inclusive) will commence on Royal Assent of the Act. Items included under Schedule 1 will commence on the date to be fixed by Proclamation. If, within six months of the date the Act receives Royal Assent the provisions under Schedule 1 have not commenced, the provisions will commence on the day after the six month period following Royal Assent ends.

Clause 3 provides that each Act that is specified in a Schedule to this Bill is amended or repealed as set out in that Schedule, and any other item in a Schedule to the Bill has effect according to its terms.

Schedule 1 - Amendments to Crimes Act 1914

Background

In 2010, amendments were made to Part VIIC of the Crimes Act to facilitate the inter-jurisdictional exchange of criminal history information for people working with children. The Crimes Amendment (Working With Children-Criminal History) Act 2010 created exceptions to the provisions that prevent the disclosure of pardoned, quashed and spent convictions for the purpose of child-related employment screening, more commonly known as the Working With Children Checks regime.

This Bill has been informed by the working with children checks regime and the administrative arrangements which underpin it. The Bill forms an important part of the broader NDIS Quality and Safeguarding Framework (the Framework) which is designed to support the rights of people with disability by ensuring they have access to quality and safe services under the NDIS.

A series of recent Commonwealth and State inquiries and reports, including the Royal Commission into Institutional Responses to Child Sexual Abuse, have documented the weaknesses of the current safeguarding arrangements for disability services, many of which result from a disconnection between quality assurance and oversight regulatory functions. The inquiries found failures to uncover, report and respond to abuse, and inadequate national screening of workers. They called for improvements in these areas including to provide for nationally consistent provider accreditation.

The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017 (Quality and Safeguards Commission Act) established (from 1 July 2018), an independent national Commission, the NDIS Quality and Safeguards Commission (the Commission), to protect and prevent people with disability from experiencing harm arising from poor quality or unsafe supports or services under the NDIS. The Quality and Safeguards Commission Act also establishes the office of the NDIS Quality and Safeguards Commissioner (the Commissioner). The Commissioner has a statutory duty to develop and oversee the broad policy design for a nationally consistent approach to the screening of workers involved in the provision of supports and services to people with disability under the NDIS.

In consultation with the States and Territories, the Commonwealth has developed the NDIS Worker Screening Policy which takes into account the recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse, Working with Children Checks Report. In recognising that NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse, the implementation of the NDIS Worker Screening Policy will:

send a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected;
reduce the potential for providers to employ workers who pose a high risk of harm to people with disability;
prohibit those persons, that pose a high risk or are proven to have harmed vulnerable people, from working in the sector; and
deter individuals who pose a high risk of harm from seeking work in the sector.

The purpose of this Bill is to facilitate the inter-jurisdictional exchange of criminal history information for people who work, or seek to work, with people with disability. While the Commission will have oversight and broad policy responsibility for worker screening for people who provide supports or services to NDIS participants, the function of screening workers will remain with States and Territories which will remain responsible for the operational aspects of worker screening including worker screening units.

The Bill is an important step towards fulfilling the Council of Australian Governments' decision of 9 December 2016 to implement the new Framework to protect NDIS participants with disability. This Bill forms a key part of the Framework and gives effect to the Commonwealth's commitment to work with the States and Territories to deliver nationally consistent NDIS worker screening.

Explanation of the changes

Schedule 1 - Amendments to the Crimes Act 1914

Item 1: Amend Subdivision A

This item repeals the existing heading in Subdivision A of Division 6 of Part VIIC (heading) and replaces it with 'Subdivision A - Exclusions relating to work with children (Divisions 2 and 3)'. This is a technical amendment to clarify that this Subdivision only relates to exclusions to Divisions 2 and 3 of Part VIIC for the purpose of a working with children check.

Item 2: Insert a new Subdivision AA and inserts new sections 85ZZGH through to and including 85ZZGM

New Subdivision AA

This item inserts new Subdivision AA of Division 6 of Part VIIC and confirms that this new Subdivision relates to exclusions to Divisions 2 and 3 of Part VIIC for the purpose of work with persons with disability.

New section 85ZZGH

This item also inserts new section 85ZZGH which explicitly states that the object of Subdivision AA is to protect people with disability from harm, by permitting criminal history information to be disclosed and taken into account in assessing whether a person who works, or seeks to work, with a person with disability poses a risk to such a person.

The types of harm are not specified within the provision to ensure the NDIS Worker Screening Regime is afforded broad scope in its application. The types of harm that the NDIS Worker Screening Regime will seek to protect against include, but are not limited to, sexual, physical, emotional, financial and legal harm.

New section 85ZZGI

This item also provides an exclusion to the application of Divisions 2 and 3 of Part VIIC of the Crimes Act, which states that a person is not required to disclose criminal history information about:

pardoned convictions, where a pardon was granted because he or she was wrongly convicted of the offence,
quashed convictions, or
spent convictions.

This item will allow agencies such as the Australian Criminal Intelligence Commission and the Australian Federal Police to disclose this criminal history information to a prescribed person or body that is required, or permitted by or under a prescribed Commonwealth, State or Territory law to obtain and deal with information about persons who work, or seek to work, with people with disability.

Worker Screening Units will be established in each State and Territory and will be prescribed to undertake employment screening in relation to work with a person with disability. Various State and Territory bodies currently exist which are prescribed to obtain and deal with criminal history information for the purpose of child-related employment screening. These include the Office of the Children's Guardian (NSW), Secretary to the Department of Justice (Vic), and the Department for Communities and Social Inclusion Screening Unit (SA). This item provides the capacity to prescribe bodies by regulation to carry out employment screening for work with a person with disability which will ensure that appropriately authorised screening bodies will be able to access criminal history information for this purpose.

The use and disclosure of criminal history information is limited for the specific purpose of assessing the risk that a person may pose in working with a person with disability. The information may not be used for the purpose of a general probity or employment suitability check.

New section 85ZZGJ

This item also provides the same exclusion to the application of Divisions 2 and 3 of Part VIIC of the Crimes Act as section 85ZZGI, but in relation to the taking into account of criminal history information by a prescribed person or body.

This item allows a prescribed person or body to take into account the criminal history information received through the information exchange as required or permitted by law. Prescribed persons or bodies must be able to take into account the information received in order to assess the risk that a person may pose to a person with disability if permitted to engage in work with a person with disability. This item also clarifies that the information can only be taken into account for the purpose of dealing with the information in accordance with the prescribed law or where it is required by or under a Commonwealth law or a State or Territory law.

New section 85ZZGK

This item also provides the same exclusion to the application of Divisions 2 and 3 of Part VIIC of the Crimes Act as section 85ZZGI, but in relation to the disclosure of information by a prescribed person or body rather than to a prescribed person or body.

This item recognises, and allows for, a prescribed person or body to disclose information received under the exchange where there is a statutory obligation to use or disclose information for the protection of a particular person with disability.

New section 85ZZGL

This item inserts a new section that requires the Minister to be satisfied that certain criteria are met before a person or body can be prescribed to deal with Commonwealth criminal history information about persons who work, or seek to work, with a person with disability. The Minister responsible for prescribing persons or bodies for this purpose will be the Attorney-General.

A person or body will not be able to be prescribed unless the Minister is satisfied that the screening unit has a legislative basis for doing so and complies with applicable privacy, human rights and records management legislation.

Furthermore, the Minister must be satisfied that the person or body complies with the principles of natural justice, and has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of a person with disability.

This item acts as an important safeguard ensuring against the misuse of criminal history information.

New section 85ZZGM

This item also inserts two definitions relevant to Subdivision AA.

The term 'person with disability' is defined to mean a person who meets any of the following criteria:

(a)
a person who is a participant within the meaning of the National Disability Insurance Scheme Act 2013;
(b)
a person who is receiving supports or services of a kind mentioned in paragraph (b) of the definition of NDIS provider in section 9 of that Act;
(c)
a person who is receiving supports or services of a kind prescribed by the regulations for the purposes of this paragraph.

This definition recognises that for the purpose of screening workers to assess their suitability to work with people with disability, in addition to NDIS participants there are also people with disability outside the NDIS who could be covered by the disability-related worker screening regime. While the primary focus of the Commission will be overseeing the regulatory arrangements for NDIS providers, there are a range of other prescribed providers who are providing similar services to people with disability or supporting people with disability in connection with NDIS supports and services. This may include individuals who are receiving supports or services of a kind mentioned in paragraph 9(b) of the National Disability Insurance Scheme Act 2013 as amended by the National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017. It may also include individuals who are receiving supports or services not otherwise covered by paragraphs (a) or (b) of new section 85ZZGM. In such cases those other supports or services will be prescribed by regulation.

The term 'work' is given a broad definition in the Bill. It includes individuals who are engaged to work under a contract of employment or contract for services. It also includes those persons in leadership roles of religious institutions and extends to persons holding positions as officers of a body corporate, a committee, association or partnership. The definition includes persons in paid and voluntary work and extends to persons who are self-employed or in practical training as part of an educational or vocational course.

Defining 'work' broadly will assist in comprehensive employment screening for work with a person with disability and ensure that all forms of work that involve a person with disability are captured by the definition.

This item also provides the capacity to prescribe additional roles and activities to ensure that emerging forms of work involving a person with disability can be included.

New section 85ZZGN

This item also inserts a new section that requires the Minister to undertake two reviews of the operation of new Subdivision AA.

This item requires the Minister to commence a review of Subdivision AA of the Bill to be completed not later than 31 December 2019, and then cause a further review of Subdivision AA to be completed not later than 31 December 2022.

This item acts as an important safeguard and will ensure there is a comprehensive assessment of the Bill's operation. This is important given the sensitive nature of the information that will be available under the NDIS worker screening regime. The first review will commence fifteen months after the commencement of the NDIS worker screening regime and will enable the effectiveness of the regime to be assessed, and to ensure that information is being dealt with appropriately. The second review will commence after four years of operation of the NDIS worker screening regime and similarly, will provide a further opportunity to review how the regime is working. The report on the review must be prepared and tabled in each House of Parliament within 15 sitting days of that House after the day on which the Minister receives the report.

This safeguard is in addition to separate reviews which are anticipated will be undertaken by Commonwealth and State and Territory agencies in mid-2019 and mid-2022. These reviews will also consider the operation of the NDIS worker screening regime as part of its role more broadly within the Framework to ensure the regime is working effectively. Given these reviews are reporting in mid-2019 and mid-2022 it is considered appropriate that the Minister provide a report to Parliament that focuses specifically on the operation of the NDIS worker screening regime by the end of 2019 and 2022 respectively.

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of this Bill

The Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018 (the Bill) creates an exception to the provisions that would prevent the disclosure of spent, quashed and pardoned convictions for persons who work or seek to work with people with disability in the NDIS. The Bill aims to uphold the human rights of people with disability by helping protect them from experiencing harm from the people working closely with them.

The protection of people with disability from violence, abuse and neglect is a key priority for all Australian governments. In December 2016, the Council of Australian Governments (COAG) agreed to the NDIS Quality and Safeguarding Framework (the Framework), following three years of consultation with key stakeholders, including people with disability, their families and carers and providers as well as peak bodies. Nationally consistent NDIS worker screening is a key element of the Framework that will minimise the risk of harm to people with disability from the people who work closely with them.

The Bill is an important step towards implementing the COAG commitment to nationally consistent NDIS worker screening and giving effect to the Commonwealth Government's regulatory responsibilities under the Framework.

This Bill enables the use and disclosure of spent, quashed and pardoned convictions information with State and Territory worker screening units for the purposes of NDIS worker screening. It is well-documented that reports of abuse and neglect perpetrated against people with disability may not be pursued for a variety of reasons. This includes difficulties experienced in securing a conviction where the victim is a person with disability, and the challenges faced by people with disability who are victims of crime. Including this kind of additional information can provide a better indication of risk than criminal convictions alone and will assist worker screening units make a more accurate and informed assessment of the risk that a person may pose to people with disability in the NDIS.

Similar legislation enabling the sharing of such information for the purposes of working with children checks has been in place since 2010.

Human rights implications

The Bill engages the following rights under international human rights law:

the rights of people with disabilities, especially Article 16 of the Convention on the Rights of Persons with Disabilities (CRPD)
the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)
the right to a presumption of innocence in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR)
the right to privacy in Article 17 of the ICCPR.

Rights of people with disability - Article 16 of the CRPD

The Bill promotes the rights of persons with disability consistent with Australia's obligations, by ensuring that the supports and services provided through the NDIS are delivered by a suitable workforce.

A nationally consistent approach to worker screening is an important element of the design of the NDIS and the Framework that minimises the risk of harm to people with disability from the people who work closely with them. While the primary responsibility for recruiting and providing a safe environment for people with disability rests with employers (including sole traders and self-employed), a worker screening outcome is one source of information that can support employers in fulfilling this responsibility.

A nationally consistent and recognised worker screening regime promotes the rights of people with disability by:

sending a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected
reducing the potential for providers to employ workers who pose a high risk of harm to people with disability
prohibiting those persons, that pose a high risk or are proven to have harmed vulnerable people, from working in the sector
deterring individuals who pose a high risk of harm from seeking work in the sector.

Right to work - Article 6 of the ICESCR

Article 6 of the ICESCR recognises the right to work and 'includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts'. This right also applies to workers who work with people with disability, including NDIS participants.

The paramount objective of this Bill is to protect people with disability from experiencing harm arising from unsafe supports or services under the NDIS.

Consistent with this objective, a person engaged by a registered NDIS provider to deliver NDIS supports or services that entails more than incidental contact with a person with disability, or in a key executive, management and operational position, such as a Chief Executive Officer, Chairman or Board Member, will be required to obtain an NDIS Worker Screening Check. A registered NDIS provider will be required to ensure that its workers have undergone the necessary screening processes as part of their registration requirements.

This recognises that some NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse.

At the same time, governments recognise that some individuals have valuable lived experiences to share with people with disability accessing supports and services. Offenders can make significant changes in their lives, and it is critical that NDIS worker screening does not unreasonably exclude offenders from working in the disability sector.

The State and Territory-operated worker screening units will be required to have appropriately skilled staff to assess risks to people with disability, to comply with the principles of natural justice, and to comply with a nationally consistent risk assessment and decision-making framework, including considerations of the circumstances surrounding any offence. The Bill provides the means to gain the necessary information to assess such circumstances.

In this way, the Bill enables informed risk-based worker screening that balances the rights of people with disability with the right to work. It supports a proportionate approach to safeguards that does not unduly prevent a person from choosing to work in the NDIS market, but ensures the risk of harm to people with disability is minimised, by excluding workers whose behavioural history indicates they pose a risk from certain services and supports.

Presumption of innocence - Article 14(2) of the ICCPR

Article 14(2) of the ICCPR provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty. The Bill allows an NDIS worker screening unit to consider pardoned, quashed or spent convictions in determining whether an individual poses a risk to people with disability, and does not override the presumption of innocence.

Right to privacy- Article 17 of the ICCPR

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Privacy guarantees a right to secrecy from the public of personal information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.

The Bill provides access to a worker's detailed criminal history information to state-based worker screening units to enable a thorough risk-based worker screening assessment proportionate to determining the potential risk of harm to people with disability receiving services under the NDIS. Further, the permission to access such information will be obtained from a worker applying for a worker screening check as a part of the application process.

Such access is considered reasonable to protect people with disability and is not considered to contravene a worker's right to privacy.

Conclusion

The Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018 advances the protection of the rights of people with disability in Australia consistent with the CRPD, particularly in relation to preventing exploitation, violence and abuse in the disability sector.

The Bill also supports the right to work by ensuring information is available for worker screening units to undertake a thorough risk assessment including the circumstances surrounding any relevant aspects of a workers criminal history.

To the extent the Bill impinges on the human rights of workers, the impositions are reasonable, necessary and proportionate to achieving the protection of people with disability and confidence in the safety of the NDIS market, thereby ensuring the long-term integrity and sustainability of the NDIS.


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