New NDIS Worker Screening Laws


Spent convictions may now be disclosed to and considered by certain Commonwealth, State and Territory agencies in determining a job seeker’s suitability to work with people with disability under the NDIS.

This training brochure applies to all organisations in Australia.

Crimes Amendment (National Disability Insurance Scheme – Worker Screening) Regulations 2019 (Cth)

The Crimes Amendment (National Disability Insurance Scheme- Worker Screening) Regulations 2019 (Cth) (the Amending Regulations) amended the Crimes Regulations 2019 (Cth) (the Regulations) on 1 November 2019.

Background

Organisations will be aware that under section 85ZW of the Crimes Act 1914 (Cth) (the Act), if an organisation knows that a person’s conviction of a Commonwealth, Territory, State or foreign offence is spent, they must not:

  • (without the person’s consent), disclose the fact that the person was charged with, or convicted of the offence to any other person, or to a Commonwealth authority or State authority, where it is lawful under section 85ZV of the Act for the person not to disclose it; or
  • take account of the fact that the person was charged with, or convicted of the offence.

In November 2018, new exceptions to section 85ZW were introduced to the Act in order to protect persons with a disability from harm, by allowing information regarding a job seeker’s criminal history that is quashed, spent or pardoned to be disclosed to and taken into account by Commonwealth, State and Territory agencies.  It was thought that by taking into account such information, State and Territory worker screening units would be better placed to determine whether a person was suitable to work with people with disability in the National Disability Insurance Scheme (NDIS).

The exceptions that were introduced in November last year (as contained in sections 85ZZGI, 85ZZGJ and 85ZZGK of the Act) provide that section 85ZW does not apply in certain circumstances. More specifically, these sections provide that section 85ZW does not apply in relation to the disclosure of or taking into account of information to or by a prescribed person or body, if the person or body is required or permitted by law, to obtain and deal with information about persons who work, or seek to work, with a person with disability, and the disclosure or taking into account is for the purpose of the person or body obtaining and dealing with such information in accordance with (or as required by that law).

The purpose of the Amending Regulations is to prescribe (for the purposes of sections 85ZZGI, 85ZZGJ and 85ZZGK of the Act), those State and Territory persons and bodies who are authorised to receive, use and disclose spent, pardoned and quashed convictions. These new changes are discussed in further detail below.

Exclusions relating to work with persons with disability

With a view to enabling the use and disclosure of spent, quashed and pardoned conviction information to State and Territory screening units for the purposes of NDIS worker screening, the Amending Regulations have introduced regulation 20A to the Regulations.

Organisations should be aware regulation 20A of the Regulations provides that for the purposes of sections 85ZZGI, 85ZZGJ and 85ZZGK of the Act, the persons and bodies mentioned in column 1 of an item in the table set out below, and the laws mentioned in column 2 of an item in the table, are prescribed to the extent that those laws:

  • are NDIS worker screening laws (within the meaning of the National Disability Insurance Scheme Act 2013 (Cth)); and
  • relate to persons working, or seeking to work, with people with disability (within the meaning of section 85ZZGM of the Act).

Essentially, regulation 20A provides that those persons and bodies contained in the table below are authorised to receive, use and disclose spent, pardoned and quashed convictions.

Prescribed persons, bodies and laws
ItemColumn 1 – Person or bodyColumn 2 – Law
1Screening Agency appointed under the National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW)National Disability Insurance Scheme (Worker Checks) Act 2018 (NSW)
2Central assessment unit established under the Child Safety (Prohibited Persons) Act 2016 (SA)Disability Inclusion Act 2018 (SA)
3Registrar appointed under the Registration to Work with Vulnerable People Act 2013 (Tas.)Registration to Work with Vulnerable People Act 2013 (Tas.)
4Commissioner mentioned in section 17 of the Working with Vulnerable People (Background Checking) Act 2011 (ACT)Working with Vulnerable People (Background Checking) Act 2011 (ACT)


Conclusion

Organisations should familiarise themselves with the new regulation 20A of the Regulations as discussed above, and as found in the NATIONAL – Non-Disclosure of Spent Convictions topic.

Contact

For further information please contact the Law Compliance team:

Phone: 1300 862 667

Email: info@lawcompliance.com.au