BILLS DIGEST NO. 15, 2019–20              30 July 2019

National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019

Kaushik Ramesh
Law and Bills Digest Section

Date introduced: 4 July 2019
House:  The Senate
Portfolio: National Disability Insurance Scheme
Commencement: The day after Royal Assent.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at July 2019.

History of the Bill

The National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 (the first Bill), was introduced into the House of Representatives on 13 February 2019.[1] The first Bill passed the House of Representatives on 2 April 2019, but had not been introduced into the Senate prior to the dissolution of the 45th Parliament on 11 April 2019.

The National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 (the Bill), was introduced into the House of Representatives on 4 July 2019. The provisions of the Bill are in equivalent terms to those in the first Bill with the exception of the commencement date.

Purpose of the Bill

The purpose of the Bill is to amend the National Disability Insurance Scheme Act 2013 (the NDIS Act) to establish a database for nationally consistent worker screening (the Database) in relation to the National Disability Insurance Scheme (NDIS).

Background

Senate Committee report

The 2015 report by the Senate Community Affairs References Committee (Community Affairs Committee) about violence, abuse and neglect against people with disability, contains compelling evidence from people with disability, their families and advocates.[2]

The report states:

There was a great deal of evidence presented to the inquiry on the benefits of a systemic approach to the regulation of the disability service workforce. This ranged from improving pre-employment screening systems, through to possible registration schemes that would include requirements for ongoing professional development.[3]

Accordingly, the report recommended, amongst other things, that the Australian Government consider establishing a disability worker registration scheme, to include the elements of nationally consistent pre-employment screening and an excluded worker registration scheme.[4]

Intergovernmental agreement

On 2 September 2016, the majority of members of the Council of Australian Governments (COAG) Disability Reform Council agreed to a national Quality and Safeguarding Framework for the NDIS (the Framework).[5] Consistent with the recommendation of the Community Affairs Committee report, one of the components of the Framework is the screening of workers to help ensure they keep people with disability safe.[6]

The Disability Reform Council noted that screening would be a shared responsibility between the Commonwealth and the states and territories.[7] This shared responsibility was noted in the Framework:

Who will run the screening process: NDIS risk-based worker screening will be operated under a shared approach with defined roles and responsibilities. The Commonwealth through the NDIS registrar will have broad design responsibility, including determining scope, information to be considered, and a decision-making framework. States and territories will maintain operational responsibility for worker screening including managing and operating worker screening units. [Emphasis added][8]

Subsequent to the establishment of the overarching Framework, the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme (the Worker Screening IGA) set out the national policy for NDIS worker screening, and stipulated that the policy will be implemented through Commonwealth and state and territory legislation and policy guidelines.[9] All states and territories, with the exception of Western Australia, have now signed the Worker Screening IGA.

The Worker Screening IGA sets out the following objectives of nationally consistent NDIS worker screening:

a)              demonstrating that the rights of people with disability to be safe and protected are a high community priority

b)              reducing the potential for providers to employ or engage individuals who pose an unacceptable risk of harm to people with disability

c)              prohibiting individuals who have a history of harm against people with disability from having more than incidental contact with people with disability when working for a registered NDIS provider

d)              deterring individuals who pose a high risk of harm from seeking work in the NDIS sector.[10]

The importance of screening disability support workers was emphasised by the Minister for Families and Social Services, Paul Fletcher, when the first Bill was introduced into the Parliament:

Worker screening is a way to check that people who are working, or seek to work, in the NDIS do not pose an unacceptable risk of harm to people with disability

…

Importantly, nationally consistent worker screening will deter individuals who pose a high risk of harm from seeking work in this sector.

…

Participants and their families can have confidence that workers with clearances have been assessed as not posing an unacceptable risk of harm to people with disability.[11]

Transition to a national NDIS Worker Screening Check

The National Disability Insurance Scheme (Practice Standards—Worker Screening) Rules 2018 (Worker Screening Rules) provide the legislative basis for the screening requirements for registered providers and stipulates requirements for ‘risk assessed roles’. According to the Worker Screening Rules:

While the primary responsibility for recruiting appropriate staff and providing a safe environment for people with disability rests with employers, a worker screening outcome is one source of information that can support employers in fulfilling this responsibility. The national policy for NDIS worker screening will be brought into effect through relevant Commonwealth, State and Territory legislation and policy.  The NDIS Commissioner is responsible for working with all Australian Governments to develop and oversee the broad policy design for a nationally consistent approach to NDIS worker screening.[12]

Part 4 of the Worker Screening Rules also provides for specific transitional arrangements for all states and territories with the exception of Western Australia:

States and territories (except Western Australia) will commence transitioning to nationally consistent NDIS Worker Screening on 1 July 2019. The new NDIS Worker Screening Check—simply referred to as the 'Check'—will be introduced in each state and territory over the next year, with all states and territories having the Check in place by July 2020.

Until the Check becomes available in a jurisdiction, transitional arrangements provide recognition of current state-based checks, such as Working with Children or Vulnerable Persons Checks. From 1 July 2019, existing workers with a current state-based check will be able to continue to work and new workers will need to apply for a recognised screening check in their state or territory. Once the NDIS Check is operational, state-based checks for existing workers will continue to be recognised until they expire; at which time a worker will need to apply for the new Check. New workers would also need to apply for the NDIS Check once it is available. The outcomes of the NDIS Check will be stored on the national database to be established by this Bill. This approach will provide for a gradual transition to the new system.[13]

Both New South Wales and Victoria, for example, have noted that they are moving to the NDIS Quality and Safeguards Commission requirements from 2019–20.[14]

National worker screening database

In the lead-up to the 2019 Federal Election, the Coalition announced its intention, if elected, that the NDIS Quality and Safeguards Commission would host a $13.6 million national database of NDIS worker screening clearances. This would ‘provide a way to check that people who are working, or seek to work, in the NDIS do not pose an unacceptable risk of harm to people with disability’.[15]

Under the Worker Screening IGA all parties to the agreement will contribute funding for the development and maintenance of the National Clearance Database (the Database), with the Commonwealth to contribute 50 per cent.[16]

The purpose of the Database is to:

a) maintain a register of cleared and excluded applicants and workers from all jurisdictions to support national portability

b) facilitate the exchange of relevant information about individuals applying to work in the NDIS, and ensure that a decision to issue an NDIS Worker Screening Check exclusion, interim bar or suspension would be available to all jurisdictions

c) enable national ongoing monitoring of cleared applicants’ criminal history records during the validity period of their clearance to ensure worker screening units can assess and respond in a timely manner to risk posed to participants

d) enable employer verification of applicants.[17]

The Database is important in the context of the wider NDIS worker screening framework:

… NDIS worker clearances will be portable across jurisdictions and employers, including self-managed participants—reducing duplication and complexity for workers and providers moving between, or operating across, jurisdictions. Similarly, a worker who has been excluded by one state or territory will be excluded nationally. This represents a major step forward from the existing fragmented arrangements operating in each state and territory.

…

The database will provide employers with an important tool for their recruitment, selection and screening processes and help with their responsibility to ensure people chosen to work in the NDIS are safe to work with people with disability.[18]

The Bill relates only to the creation of the Database. Actual worker screening practices will remain the responsibility of states and territories.

Committee consideration

Senate Standing Committee for the Selection of Bills

Prior to the introduction of the first Bill, the Senate Standing Committee for the Selection of Bills (Selection of Bills Committee) recommended that, subject to introduction, the provisions of the Bill be referred immediately to the Community Affairs Legislation Committee for inquiry and report.[19] However, the Selection of Bills Committee subsequently recommended that the first Bill not be referred to a committee.[20]

On 4 July 2019, the Selection of Bills Committee deferred consideration of the Bill until its next meeting.[21]

Senate Standing Committee for the Scrutiny of Bills

The Senate Standing Committee for the Scrutiny of Bills had no comment on the Bill.[22]

Policy position of non-government parties

Australian Labor Party

The Australian Labor Party (Labor) has expressed support for the Bill:

We support this legislation because we recognise the importance of creating a central national database to store and disclose information as required on worker screening information, which is also, of course, about state and territory arrangements. We welcome this legislation because we know how important it is for people with disability to receive high-quality care.[23]

One Nation

Pauline Hanson’s One Nation Party (One Nation) does not support the Bill due to perceived problems with the NDIS generally and in particular with issues of privacy:

We will not be supporting this bill, because it just continues to magnify the industry that is growing like topsy and that has no accountability, leaving the taxpayers vulnerable while not supporting the needy. We want to see some real accountability come into this, not open slather on the privacy of many individuals.[24]

Position of major interest groups

The peak industry body for non-governmental disability services organisations, National Disability Services, reportedly supports the Database:

As a sector we have been pushing for this for quite some time… What has happened previously is that support workers who had done the wrong thing by people with a disability, if they've moved to another state there has been no reporting practice to follow them from job to job.[25]

Financial implications

The Bill’s Explanatory Memorandum notes that the measures in the Bill are part of a 2017–18
Mid-Year Economic and Fiscal Outlook measure and that the financial impact over the forward estimates of developing and maintaining the database is $13.6 million (with the states and territories expected to contribute $6.8 million).[26]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Statement of Compatibility with Human Rights (SOC) notes that the Bill engages the following human rights:

•       the rights of people with disability under Article 16 of the Convention on the Rights of Persons with Disabilities (CRPD)[27]

•       the right to work under Article 6 of the International Convention on Economic, Social and Cultural Rights (ICESCR)[28] and

•       the right to privacy under Article 17 of the ICESCR.

While the Bill does impinge to an extent on the right to work and the right to privacy, the Government’s view is that the Bill is compatible with human rights as:

The Bill 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. To the extent the Bill impinges on the human rights of workers, these 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.[29]

Parliamentary Joint Committee on Human Rights

Issues with the first Bill

The first Bill and its accompanying SOC was considered by the Parliamentary Joint Committee on Human Rights (PJCHR) in its report of 2 April 2019.[30] The PJCHR noted that the first Bill’s purpose of protecting people with disability from experiencing harm ‘… is likely to be a legitimate objective for the purposes of international human rights law’. It is also noted that ‘the measure is directed at promoting the rights of people with disability’.[31]

The PJHCR acknowledged that the measure in the first Bill (which limits the right to privacy and work) is connected to the purpose of that Bill:

Collecting and consolidating information relating to NDIS worker screening checks may assist employers and service providers to make more informed and accurate assessments as to a person's suitability as a disability support worker. In this respect, the measure appears to be rationally connected to the objectives of the bill.[32]

The PJHCR did however have some issues with the first Bill and the accompanying SOC.

First, with regards to the proportionality of the measures in the Bill,[33] the PJHCR noted that while limitations on the types of information that may be included on the Database as set out in the SOC ‘assists the proportionality of the measure’, the PJCHR was concerned:

…it is unclear whether the identified limitations are enshrined in legislation (and if so, the specific provisions that apply) or are matters of policy. Further information in relation to these matters would assist in assessing whether the measure is proportionate.[34]

Second, the PJHCR noted that while the SOC sets out limitations on the persons who can access information from the Database and explains that employers will only have restricted access to information, the legal basis of these limitations is unclear (even if they assist with the proportionality of the measure):

…the statement of compatibility does not identify whether these safeguards are enshrined in legislation (and if so, the specific provisions that apply) or are matters of policy. Moreover, no specific legal or administrative limits on using the information in the database (for example, procedures for de-identifying information where it is used for policy development or research) are identified in the statement of compatibility. Further information as to the specific safeguards in the bill, the NDIS Act or other legislation relating to the limitations on access to information in the database would assist in assessing the proportionality of the measure.[35] [Emphasis added]

Third, the PJHCR expressed concerns on the legislative instrument making power in the first Bill:

It is also noted that while the minister would be permitted to determine additional information to be included in the database, no information is provided in the statement of compatibility as to the matters the minister may consider before making such a determination.[36]

Fourth, the PJHCR noted the following in relation to the power to disclose protected information under the NDIS Act:

… in relation to the handling of personal information, the statement of compatibility explains that personal information on the Worker Screening Database is 'protected Commission information'…

… the offences in sections 67B, 67C and 67D of the NDIS Act are significant safeguards against the unauthorised disclosure of personal information. However, it is noted that these provisions are subject to certain exemptions for authorised disclosure, including a broad power to record, use and disclose protected Commission information 'for the purposes of the NDIS Act' and the public interest disclosure power in section 67E… While this disclosure power is constrained by the Disclosure Rules, it would have been of assistance if the statement of compatibility had addressed the committee's previous analysis of the disclosure provisions in the NDIS Act and Disclosure Rules.[37]

The PJHCR concluded its comments on the first Bill and accompanying SOC by requesting the Minister’s advice as to whether the limitations on the right to privacy and work are proportionate, in particular:

•       whether information on the Database will be appropriately circumscribed, including whether limitations on the type of information will be set out in legislation or policy

•       whether access to the Database will be appropriately circumscribed, including whether limitation on access will be set out in legislation or policy and

•       any other information relevant to the proportionality of the measure.[38]

The current Bill and Statement of Compatibility

As stated above, the first Bill is in equivalent terms to this Bill. That being the case, the PJHCR’s concerns about the human rights impacts of the first Bill have not been translated into amendments in this Bill.

However, the SOC that accompanies the Bill has some additional information that was not included in the SOC to the first Bill. The new SOC provides some additional detail and clarity around the proportionality of the measures in the Bill that restrict human rights. For example, the new SOC reinforces that the effect of the Worker Screening Rules is that only workers in roles which have been ‘risk assessed’ as roles needing a clearance will require mandatory clearances (thereby representing a ‘proportionate approach’).[39]

The new SOC appears to have addressed, in part, the PJHCR’s concerns in relation to the legislative instrument making power in the Bill. It notes that any legislative instrument made will require an accompanying Statement of Compatibility with human rights, thereby ensuring that the Minister has regard to the proportionality of any additional purpose determined that restricts human rights.[40] The new SOC also notes that such an instrument will be subject to disallowance.[41]

There is also additional detail around the restriction of information from the Database to employers (noting for example that information will only be viewable with a relevant national identification number for the employee) and concludes that the information provided to employers is proportionate as it balances the right to privacy with the obligation to protect people with disability.[42] According to the new SOC personal information from the Database that may be used for policy development and research will be de-identified in accordance with the requirements of the Office of the Australian Information Commissioner and the NDIS Quality and Safeguards Commission’s own operating procedures (which directly addresses one of the PJHCR’s concerns excerpted above).[43]

While the new SOC provides some limited additional references to legal instruments and policies, it does not appear to fundamentally address the issues of concern to the PJCHR. It still appears unclear if there is any legislative or policy authority for the limitations on accessing information on the Database and the restrictions on the types of information on the Database, which are set out as mitigating factors for the restriction of human rights in both the previous and new SOC.

Key issues and provisions

Key definitions

Item 2 of the Bill inserts the following new definitions into section 9 of Part 4 of the NDIS Act including:

•       disclose: stipulates that in relation to information on the Database, the disclosure of information includes providing electronic access to information. This definition reflects the Government’s intention that a person or body can log onto the Database to access relevant information (the disclosure of information is discussed further in the section ‘Who will have access to this information?’ below)[44]

•       NDIS worker screening check: means an assessment under an NDIS worker screening law (see proposed section 10B discussed below) of whether a person who works, or seeks to work, with people with disability poses a risk to such people. This definition is reflected in the type of information to be included in the Database (see the discussion under ‘Information in the Database’ section below) and

•       NDIS worker screening database: means the database established by proposed section 181Y, (see the discussion under ‘Establishing the worker screening database’ below).

Item 3 inserts proposed section 10B into Part 4 of the NDIS Act to create a definition for an NDIS worker screening law. The proposed subsection empowers the Minister to determine, by way of legislative instrument, that a law of a state or territory is a worker screening law if the Minister is satisfied that the law establishes a scheme for the screening of workers for the NDIS and if it is with the agreement with that state or territory. Such an instrument will not be subject to disallowance in accordance with subsection 44(1) of the Legislation Act 2003 (Cth) as it relates to an intergovernmental scheme.

Establishing the worker screening database

Item 4 of the Bill inserts proposed Chapter 6B – NDIS worker screening database into the NDIS Act.

Proposed subsection 181Y(1), within new Chapter 6B, requires the Commissioner of the NDIS Quality and Safeguards Commission (the Commissioner) to establish, operate and maintain the Database.[45] As set out above, under the Worker Screening IGA, the NDIS Quality and Safeguards Commission will have responsibility for the Database.

As this proposed subsection confers a function on the Commissioner, subsection 55A(1) and paragraph 55A(2)(f) of the NDIS Act empower the Commissioner to gather information for inclusion in the Database, with the failure to provide this information being subject to a penalty under subsection 57(1) of the NDIS Act.[46]

Proposed subsection 181Y(2) stipulates that the Database must be kept in electronic form; the Government’s intention is that the Database will be online.[47]

Purposes of the database

Proposed subsection 181Y(3) sets out the purposes of the Database being:

•       to maintain, for the purposes of the NDIS, an up-to-date record of persons who are the subject of a decision made under a NDIS worker screening law, that in working or seeking to work with people with disability, the persons have been found to pose a risk or found not to pose a risk to people with disability

•       to maintain an up-to-date record of other decisions that relate to these decisions

•       to share information in the database with persons or bodies (including employers or potential employers) for the purposes of the NDIS and

•       any other purpose determined by the Minister (or the Commissioner as delegated) in a legislative instrument (see discussion under ‘Legislative instrument making power’ section below).

Key issue—broad scope of the purposes

The policy rationale behind these first two listed purposes is set out in the Explanatory Memorandum to the Bill:

The database is intended to be a centralised repository of information about persons who have had decisions made about them, or who have applied to have decisions made about them, under NDIS worker screening law. It is intended to be current and up to date, reflecting an accurate picture of whether a person, in working or seeking to work with people with disability, does or does not pose a risk to such people.[48]

However, while many of the purposes of the database listed in the Bill are similar in effect to those in the Worker Screening IGA, some are wider in scope. For example, the Bill states a purpose of the database is to ‘share information with persons or bodies (including employers and potential employers)’ whereas the Worker Screening IGA states that the database would serve to ‘enable employer verification of applicants’..[49]

Information in the database

Proposed subsection 181Y(5) of the NDIS Act provides a detailed list of the types of information that the Database may include for the purposes of the goals outlined in proposed subsection 181Y(3). The types of information are described very broadly. According to the Explanatory Memorandum to the Bill the types of information which may be included on the Database are as follows:

•       information relating to persons who have made an application in relation to an NDIS worker screening check and information relating to those applications (the Explanatory Memorandum states that this may include but is not limited to the person’s personal information, the date of the application and the state or territory in which the application was made)[50]

•       information relating to applicants in respect of whom a screening application is no longer being considered and the reasons for this (the Explanatory Memorandum notes that this may include the person’s personal information, the date from which their application was no longer being considered and information on whether the person has withdrawn their application or if the State or Territory worker screening unit has closed it)[51]

•       information relating to an applicant in respect of whom a clearance decision is in force under an NDIS worker screening law that is, a decision that the person does not pose a risk in working or seeking to work with people with disability (the Explanatory Memorandum notes that this may include information on who made the decision, the decision date, the reasons for the decision and the time period during which the decision remains in force)[52]

•       information on interim decisions made in relation to an applicant while their application is still pending (the Explanatory Memorandum notes that this could be a decision that a person is prohibited from working with people with disability while their application is pending)[53]

•       information relating to an applicant in respect of whom an exclusion decision is in force under an NDIS worker screening law that is, a decision that the person does pose a risk in working or seeking to work with people with disability (the Explanatory Memorandum notes that this may include information similar to the clearance decision provision outlined above)[54]

•       information on any period specified in a clearance decision or exclusion decision[55]

•       information relating to a person who had had their clearance decision suspended (the Explanatory Memorandum notes that this may include who decided to suspend the clearance, the decision date, where the decision was made and the time period during which the suspensions remains or remained in force)[56]

•       information relating to a person in respect of whom a decision to revoke a clearance decision or revoke an exclusion decision has been made under an NDIS worker screening law and information relating to the revocation (the Explanatory Memorandum notes that this may include who revoked the clearance or exclusion decision, the decision date and place and the time period during which the revocation remains in force)[57]

•       information relating to employers or potential employers of persons who have made screening applications (the Explanatory Memorandum notes that this provision is intended to include self-managed participants who may hire their own workers and the information may include the person’s potential, current and former employers, contact details, period of employment, a description of the role and the period employed in that role)[58] and

•       any other information determined by the Minister (or the Commissioner as delegated) in a legislative instrument (discussed further below).

Personal and sensitive information

Proposed subsection 181Y(7) of the NDIS Act stipulates that the Database may include personal information within the meaning of the Privacy Act 1988 (Cth) (that is, the information set out in proposed subsection 181Y(5)).

Personal information is defined at section 6 of the Privacy Act as information or an opinion about an identified individual, or an individual who is reasonably identifiable:

•       whether the information is true or not and

•       whether the information or opinion is recorded in a material form or not.

Sensitive information is a subset of personal information under the Privacy Act and includes information in relation to a person’s racial or ethnic origin.[59] According to the Explanatory Memorandum, the Database may include the following types of personal information:

•       name

•       date of birth

•       age

•       place of birth

•       address

•       telephone number

•       email address and other contact details

•       employment details

•       education details

•       government issued identification numbers and expiry dates and

•       worker screening numbers.[60]

In addition, the Database may include the following types of sensitive information:

•       information relating to disability status

•       Aboriginal and Torres Strait Islander status and

•       cultural and linguistic diversity status.[61]

However, the Explanatory Memorandum also states that the Database will not contain the following information:

•       information about a person’s criminal history, including convictions and charges and information relied on to make a decision under NDIS worker screening law

•       information on a person’s sexual identity and preferences.[62]

Key issue—breadth of the information

The types of information to be included on the Database are described in very broad terms. While the Explanatory Memorandum contains useful information on the types of information that the Government intends to have on the Database, these are not necessarily reflected in the wording of the Bill. As a result, while the Government’s intention appears to be to limit the types of information contained to some extent, there do not appear to be any express legal limitations in relation to this intention.

Who will have access to this information?

Section 67E of the NDIS Act allows the Commissioner to disclose information acquired under that Act if the Commissioner is satisfied on reasonable grounds that it is in the public interest to do so. Subparagraph 67E(b)(iii) allows the Commissioner to also disclose such information to a relevant state or territory authority with responsibility relating to people with a disability.

In addition, section 67A provides that a person may make a record of protected NDIS Quality and Safeguards Commission information, disclose such information to any person and otherwise use such information if it is for the purposes of the NDIS Act, for the purposes for which the information was disclosed to a person under section 67E or with the express or implied consent of the person to whom the information relates.

These provisions effectively allow the sharing of information in the Database as appropriate with state and territory agencies and in accordance with the purposes of the NDIS Act. The penalty provisions in sections 67B to 67D of the NDIS Act also apply in relation to any disclosure of information in respect of the database.

Key issue—persons who have access

The Bill does not provide a detailed list of the types of persons with whom the information in the Database will be shared. Instead, the relevant provision merely specifies ‘employers and potential employers’. The Explanatory Memorandum however provides greater clarity on the types of the persons with whom the Government intends for the Database’s information to be shared in order ‘to ensure that the database is current and accurate’.[63]

According to the Explanatory Memorandum to the Bill information from the Database is intended to be shared with the following parties ‘at varying levels of detail’:

·         State and Territory worker screening units conducting worker screening checks;

·         registered NDIS providers and their subcontractors;

·         the National Disability Insurance Agency and its contractors;

·         persons and bodies providing services under Chapter 2 of the Act;

·         NDIS providers who are not registered, and their subcontractors;

·         self-managed participants and plan nominees;

·         the NDIS Quality and Safeguards Commission; and

·         the Department of Social Services.[64]

Despite the Government’s stated intention that information will be shared at ‘varying levels of detail’, the Bill is silent about what those levels are.

Legislative instrument making power

Proposed subsection 181Y(8) provides that the Minister may by legislative instrument:

•       determine a purpose for the purposes of proposed paragraph 181Y(3)(d) – that is determine a ‘purpose’ of the database and

•       determine information for the purposes of proposed paragraph (5)(j) – that is determine the information that may be included on the database.

The Explanatory Memorandum states that the key reason for the insertion of this power in the Bill is to allow for greater flexibility in the new system as the states and territories continue to transition to a national framework:

The determination of additional purposes and further information to be included in the database has been provided for by way of secondary legislation in order to provide for flexibility without the need to amend the Act. Flexibility is necessary as State and Territory NDIS worker screening laws have not yet been implemented. As this is a new function for the Commissioner, minor adjustments may also be required as the law continues to be tested.[65]

In relation to the purposes of the Database, the Explanatory Memorandum notes that the power to determine additional purposes by legislative instrument will:

enable the purposes of the database to be broadened to include maintenance of records and the sharing of information with regard to Continuity-of-Support, in-kind supports and other arrangements not currently contemplated by Chapters 2 and 3 of the Act.[66]

In relation to the types of information to be contained on the Database, the Explanatory Memorandum provides the example that the proposed legislative instrument making power could be used to include a new type of decision under the NDIS worker screening law that is not already covered by the list of types of information in proposed subsection 181Y(5).[67]

Delegation of power

Item 5 amends subsection 201A of the NDIS Act by inserting proposed subsection 201A(1A). Current subsection 201A relates to the Minister’s powers under the NDIS Act that can be delegated to the Commissioner with respect to making certain NDIS rules. Proposed subsection 201A(1A) allows the Minister to delegate their power to make legislative instruments under proposed subsection 181Y(8) to the Commissioner. Importantly, though, the delegation will necessarily be limited by the functions and powers provided to the Commissioner under the NDIS Act.[68]

Scrutiny of legislative instrument

While there is no certainty as to the content of any future instrument made, as a legislative instrument, Parliament will still be able to scrutinise any determination made under proposed subsection 181Y(8). Section 38 of the Legislation Act will require the tabling of these determinations in each House of Parliament, and each House of Parliament will have the opportunity to disallow these determinations under section 42 of the Legislation Act.[69]

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[1].              Parliament of Australia, ‘National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 homepage’, Australian Parliament website.

[2].              Community Affairs References Committee, Violence, abuse and neglect against people with disability in institutional and residential settings, including the gender and age related dimensions, and the particular situation of Aboriginal and Torres Strait Islander people with disability, and culturally and linguistically diverse people with disability, Senate, Canberra, November 2015.

[3].              Ibid., p. 220.

[4].              Ibid., recommendation 4, p. xvi.

[5].              Council of Australian Governments (COAG) Disability Reform Council, Communiqué, Sydney, 2 September 2016. The National Disability Insurance Scheme Amendment (Quality and Safeguards Commission and Other Measures) Act 2017 established the NDIS Quality and Safeguards Commission which has functions in relation to: registration and regulation of NDIS providers, including Practice Standards and a Code of Conduct; compliance monitoring, investigation and enforcement action; responding to complaints and reportable incidents including abuse and neglect of a person with disability; national policy setting for the screening of workers; national oversight and policy in relation to behaviour support and monitoring restrictive practices within the NDIS; and information sharing arrangements.

[6].              Disability Reform Council, NDIS Quality and Safeguarding Framework, Department of Social Services, Canberra, 9 December 2016, p. 15.

[7].              Council of Australian Governments (COAG) Disability Reform Council, Communiqué, op. cit., p. 3.

[8].              Disability Reform Council, NDIS Quality and Safeguarding Framework, op. cit., p. 62.

[9].              COAG, Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme, COAG, Barton, Australian Capital Territory, 3 May 2018, p. 3.

[10].              Ibid., p. 6.

[11].              P Fletcher (Minister for Families and Social Services), National screening system to protect NDIS participants, media release, 13 February 2019.

[12].              National Disability Insurance Scheme (Practice Standards – Worker Screening) Rules 2018, Preamble.

[13].              J Duniam, ‘Second reading speech: National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019’, Senate, Debates, 4 July 2019, pp. 38–39.

[14].              NSW Government, NDIS Worker check, Fact sheet, NSW Government, July 2019; Victorian Government, ‘NDIS quality and safeguards', Victorian Government website.

[15].              Liberal Party of Australia, Support people with disability, Coalition policy document, Election 2019, p. 5.

[16].              COAG, Intergovernmental Agreement, op. cit., p. C-1.

[17].              Ibid., p. 20.

[18].              J Duniam, ‘Second reading speech’, op. cit., p. 40.

[19].              Senate Standing Committee for Selection of Bills, Report, 15, 2018, The Senate, 6 December 2018, p. 3.

[20].              Senate Standing Committee for Selection of Bills, Report, 1, 2019, The Senate, 14 February 2019, p. 4.

[21].              Senate Standing Committee for Selection of Bills, Report, 2, 2019, The Senate, 4 July 2019, pp. 4–5.

[22].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 3, 2019, The Senate, 24 July 2019, pp. 28–29.

[23].              C Brown, ‘Second reading speech: National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019’, Senate, Debates, 22 July 2019, pp. 32–33.

[24].              M Roberts, ‘Second reading speech: National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019’, Senate, Debates, 22 July 2019, p. 33.

[25].               E Jarvie, ‘NDIS worker screening database would improve accountability says disability advocate’, The Advocate (online edition), 24 July 2019; see also reported support for the Database from National Disability Services here: Disability Support Guide, 'National database to ensure safe and quality workers for NDIS participants’, Disability Support Guide website.

[26].              Explanatory Memorandum, National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019 (NDIS Worker Screening Database Bill), pp. 1–2.

[27].              Convention on the Rights of Persons with Disabilities, done in New York on 30 March 2007, [2008] ATS 12 (entered into force for Australia on 16 August 2008).

[28].              International Covenant on Economic, Social and Cultural Rights, done in New York on 16 December 1966, [1976] ATS 5 (entered into force for Australia on 10 March 1976).

[29].              Explanatory Memorandum, NDIS Worker Screening Database Bill, p. 30.

[30].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 2, 2019, The Senate, 2 April 2019.

[31].              Ibid., p. 64.

[32].              Ibid.

[33].              ‘Proportionality’ in this context refers to the proportionality of limiting human rights in relation to achieving a legitimate object (see: PJCHR, Human right scrutiny report, op. cit., p. 4).

[34].              PJCHR, Human right scrutiny report, op. cit., p. 65.

[35].              Ibid., p. 66.

[36].              Ibid., p. 65.

[37].              Ibid., pp. 66–67.

[38].              Ibid., p. 67.

[39].              Explanatory Memorandum, NDIS Worker Screening Database Bill, p. 12.

[40].              Ibid., p. 13.

[41].              Ibid.

[42].              Ibid.

[43].              Ibid., p. 14.

[44].              Explanatory Memorandum, NDIS Worker Screening Database Bill, p. 3.

[45].              Section 9 of the National Disability Insurance Scheme Act 2013 defines Commissioner as the Commissioner of the NDIS Quality and Safeguards Commission established under section 181A of the same Act.

[46].              The penalty for a failure to give information or produce a document is 30 penalty units which is equivalent to $6,300. However, under section 4K of the Crimes Act 1914, by refusing or failing to comply with a requirement of a law of the Commonwealth, a person commits an offence in respect of each day during which the person refuses or fails to comply with the requirement.

[47].              Explanatory Memorandum, NDIS Worker Screening Database Bill, p. 4.

[48].              Ibid.

[49].              L Cook, ‘National Disability Insurance Scheme Amendment (Worker Screening Database) Bill 2019’, FlagPost, Parliamentary Library blog, 19 February 2019.

[50].              Explanatory Memorandum, NDIS Worker Screening Database Bill, p. 5.

[51].              Ibid.

[52].              Ibid.

[53].              Ibid., p. 6.

[54].              Ibid.

[55].              Ibid.

[56].              Ibid.

[57].              Ibid.

[58].              Ibid.

[59].              Privacy Act 1988 (Cth), section 6.

[60].              Explanatory Memorandum, NDIS Worker Screening Database Bill, p. 7.

[61].              Ibid.

[62].              Ibid.

[63].              Ibid., p. 4.

[64].              Ibid., pp. 4–5.

[65].              Ibid., p. 8.

[66].              Ibid., p. 5.

[67].              Ibid., p. 7.

[68].              Ibid., p. 8.

[69].              For details on the Parliamentary scrutiny of legislative instruments see: Legislation Act 2003 (Cth), Part 2.