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