This article applies to NDIS Providers and other organisations who provide children related services.
Worker Screening Bill 2020 (Vic)
Please be advised that the Worker Screening Bill 2020 (Vic) (the Bill) passed its third reading in the Victorian Parliament on 29 October 2020 and received Royal Assent on 4 November 2020.
The Bill aims to repeal the Working with Children Act 2005 (Vic) and to provide a scheme for the screening of persons working with or caring for children or providing supports or services to persons with a disability.
Specifically, under the Bill’s new scheme, there will be two checks:
- A ‘Working with Children’ check; and
- A ‘National Disability Insurance Scheme (NDIS)’ check.
By placing the two check under the one framework, the Bill acknowledges that both face similar risk assessment considerations and allows for shared legal and operational processes. Relevant organisations should be aware that both checks are proposed to be administered by the Victorian Department of Justice and Community Safety. The Victorian Department of Justice and Community Safety currently administers the working with Children check under the Working with Children Act 2005 (Vic).
Finally, the Bill introduces a new key offence of which relevant organisation should be made aware.
Repeal of the Working with Children Act 2005 (Vic)
As mentioned, the Bill will repeal the Working with Children Act 2005 (Vic) via section 151. The Working with Children Act 2005 (Vic) was previously the main legislation under which the Working with Children check operated.
Working with Children Check
Although the Bill replaces Working with Children Act 2005 (Vic), under Chapter 3 of the Bill, it still provides for the current operation of the Working with Children check as it is known. Furthermore, any person who holds a Working with Children check will not be affected in any way and will simply renew their existing check as required and as normally. New applicants for the Working with Children check will also apply in the same way as current applicants.
Indeed, one could argue that the Bill is a benefit to those with current Working With Children checks, as under the Bill they will be entitled to work in a risk-assessed role with a registered NDIS provider until their Working with Children check expires. Per section 3 of the Bill, ‘risk-assessed role’ is defined under the NDIS Worker Screening Rules as:
- a key personnel role of a person or an entity as defined in s 11A of the National Disability Insurance Scheme Act 2013(Cth) (for example, a CEO or a Board Member);
- a role for which the normal duties include the direct delivery of specified supports or specified servicesto a person with disability
- a role for which the normal duties are likely to require ‘more than incidental contact’ with people with disability, which includes:
- 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 normal 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.
In relation to specifically the new NDIS scheme created under Chapter 2 of the Bill, it is based on the Disability Reform Council’s NDIS Quality and Safeguarding Framework (the Framework) published in December 2016. The Framework aims to ensure that participants receive the best support with appropriate safeguards in place. To achieve this goal, the Framework outlined a national check. In support of the Framework, the Commonwealth and the States and Territories agreed to the Intergovernmental Agreement on Nationally Consistent Worker Screening for the NDIS (the Intergovernmental Agreement). The Bill implements Victoria’s promise under the Intergovernmental Agreement. Implementing a nationally consistent checking scheme ensures that clearances and exclusions will be accepted all across Australia. The creation of this national system provides the safeguards to make it possible for a person who holds a clearance to work for any registered NDIS provider, anywhere in Australia.
Under the Bill, a relevant application will be subjected to an ‘NDIS check’ which will review their criminal and disciplinary history. If successful, the applicant will then be granted a clearance. Under the Bill, no Victorian NDIS worker will be permitted to work until they receive clearance under the check.
Overall, the new NDIS check under the Bill reflects the move towards implementing a nationally consistent NDIS worker check and will help to ensure that participants remain safe.
Finally, relevant organisations should be made aware of section 118 of the Bill, which establishes the offence of engaging in a risk assessed role without an NDIS clearance. Under section 118, a person who does not hold an NDIS clearance or an interstate NDIS clearance is prohibited from engaging in work in a risk assessed role, except in circumstances listed in sections 119 (exception—engaging in risk assessed role on application or re‑application) or 120 (exception—engaging in risk assessed role on work experience). This offence also gives effect to the ‘no clearance, no start’ policy in Victoria, which requires a person to hold an NDIS clearance before engaging in a risk assessed role. There is a significant penalty for a breach of section 118 – potentially a fine of 240 penalty units, 2 years imprisonment or both.
By repealing the Working with Children Act 2005 (Vic), this Bill aims to nationalise the approach taken regarding Working with Children and NDIS checks and provide safeguards for participants through new offences such as section 118.
Please click here to access the full Bill.
For further information please contact the Law Compliance team:
Phone: 1300 862 667