Statutes Amendment (Screening) Bill

Second Reading

Today, I introduce a bill for an act to amend the Child Safety (Prohibited Persons) Act 2016, the Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017 and the Disability Inclusion Act 2018. The Child Safety (Prohibited Persons) Act 2016 and the Disability Inclusion Act 2018 as previously passed by this parliament are important pieces of legislation to protect, support and include people with disability and children.

This bill introduces a number of amendments that are necessary to implement policy directions, including national agreements that have arisen since the introduction of both acts. The Child Safety (Prohibited Persons) Act 2016, hereinafter referred to as the prohibited persons act, will commence on 1 July 2019. This act aims to minimise the risk to children, posed by people who work or volunteer with them, by providing a framework for the prohibition of persons who pose an unacceptable risk to children by working or volunteering with them.

Through the prohibited persons act, South Australia is releasing a new child-related worker screening scheme, which implements recommendations of both the South Australian Child Protection Systems Royal Commission, otherwise known as the Nyland royal commission, and the Royal Commission into Institutional Responses to Child Sexual Abuse, that is, the commonwealth royal commission. The Disability Inclusion Act 2018, hereinafter referred to as the DI Act, aims to promote human rights and improve inclusion in the community for South Australians with disability.

The act sets the state government's future direction and role in supporting people with disability, focused on rights and inclusion, in line with the United Nations Convention on the Rights of Persons with Disabilities and the National Disability Strategy. In addition to the rights and inclusion focus, part 6 of this act provides the ability to establish a disability worker screening scheme through regulations.

In preparation for the commencement of the new scheme, the Statutes Amendment (Screening) Bill 2019 amends the prohibited persons act, the Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017, and the DI Act to implement the election commitment to abolish fees payable for persons who work with children or vulnerable people in the new screening laws, to meet nationally agreed obligations regarding working with children screening, to establish a scheme for NDIS worker screening, and to standardise and simplify screening.

Let me first address the government's commitment to supporting volunteers by implementing free screening checks. From 1 November 2018, volunteers no longer need to pay a fee for screening checks conducted by the screening unit of the Department of Human Services. This initiative has been welcomed by volunteering organisations and volunteers.

To strengthen this initiative under the new screening legislative regime, the amendment bill amends the prohibited persons act and the DI Act to differentiate between free screening for volunteers and paid screening for paid work with children or persons with a disability. This will mean that a person and organisation can only use a free volunteer screening for a volunteering role and not for paid employment. This will ensure the measure directly benefits the volunteering sector. It will also stop any potential misuse, that is, if someone signs up to be a volunteer just to get a free screening check.

This reform will ensure that the free volunteering checks directly benefit volunteers and the volunteer sector. The Minister for Human Services, the Hon. Michelle Lensink in the other place, amended the original bill in light of discussions she had with members of parliament and industry representative bodies. As a result of these discussions, the bill now applies a volunteer to use their free volunteer screening for paid work with children or persons with a disability for up to seven days.

Regarding the national standards and national reference system for working with children checks, the bill adopts the national standards for working with children checks and will lead to consistency of WWCC processes and assessments across Australia. This is an important national commitment recommended in the commonwealth royal commission into institutional abuse. It also adopts nationally agreed consistent principles and processes for working with people with disability under the National Disability Insurance Scheme. All states and territories have worked together to achieve national consistency for both WWCC and NDIS worker checks.

The bill also enables the South Australian screening authority to share, exchange and access information provided through the national reference system, as also recommended by the royal commission into institutional abuse. The commonwealth, states and territories are also working together to implement the NRS, which will improve sharing of information—for example, if someone is not assessed as suitable for a WWCC in one jurisdiction but applies in another.

In respect of transitional provisions for the prohibited persons act, it is important that these are in place to support the commencement of the prohibited persons act on 1 July 2019. Many thousands of South Australians and many businesses and organisations will be affected by these important reforms. Many people who previously did not require a screening will now require one. Importantly, there will be new obligations on both individuals and organisations as there will be penalties for employing someone in worker or volunteer roles without an appropriate screening check, or for individuals who work with children without the clearance.

It is important that the community is fully informed about these changes and that there is also a transition to the new regime that gives people in organisations time to ensure that the right checks are in place. The bill supports the transition to the new WWCC under the prohibited persons act by recognising an assessment of relevant history: a national police check conducted by individual organisations as a WWCC and assessments of national police checks conducted for emergency services for a period of 12 months. This means that people with a current, valid national police check will have 12 months or until the check expires to get a new screening assessment. This prevents thousands of South Australians from being unwittingly in breach of the law from 1 July 2019 and allows for an orderly transition.

Regarding the NDIS worker screening scheme, the DI Act currently mirrors provisions of the prohibited persons act. It creates three categories of prohibited persons: those issued with a prohibition notice by the central assessment unit, those prohibited from working with children by another jurisdiction and those found guilty of a prescribed offence. Operational details are to be provided in the accompanying regulations. The commonwealth states and territories have also been working together to a ensure nationally consistent and portable NDIS disability screening check for those who work or volunteer with people with disability.

The bill implements this new approach. In June 2018, South Australia signed the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme (NDIS IGA). The amendment bill inserts into the DI Act a new part 5A—Screening of NDIS workers. Part 5A provides for the screening of persons providing supports or services under the NDIS. The NDIS worker check is Australia's first national worker screening scheme. Commonwealth, state and territory governments have worked collaboratively to agree on the key design policy and operational framework.

The provision of NDIS supports and services is regulated by the commonwealth National Disability Insurance Scheme Act 2013 and associated rules. The commonwealth determines the types of NDIS work that require a worker to hold a clearance. NDIS employers are responsible for identifying which roles within their organisations require a worker to hold a clearance. Compliance with these requirements is a commonwealth responsibility via the NDIS Quality and Safeguards Commission.

Under the IGA, all states and territories must establish an appropriate legislative scheme. The bill therefore aims to prevent persons who pose a risk of harm from working with vulnerable people and ensure employers do not engage persons who pose a risk of harm to vulnerable people. It ensures that all people who provide NDIS supports and services through a registered NDIS provider and have more than incidental contact with a participant or a key personnel with a registered NDIS provider are required to have an NDIS worker check. It establishes that the central assessment unit, as established under the Child Safety (Prohibited Persons) Act, will be responsible for conducting NDIS worker checks in South Australia.

Only NDIS workers can apply for an NDIS worker check. Applications must be endorsed by an NDIS employer. In addition, to avoid any legal barriers that may exist in screening persons from another jurisdiction, a person must currently reside or work or intend to reside or work in South Australia to be eligible to apply for an NDIS worker check in South Australia. Once obtained, a check will be portable between states and roles. The NDIS worker check includes a national criminal history check and workplace misconduct information from the NDIS Quality and Safeguards Commission. Child protection information will also continue to be checked for all applicants.

The NDIS IGA recognises that there are certain offences that indicate a prima facie risk to people with disability, referred to as 'disqualification offences'. Applicants who have been found guilty of such offences committed as an adult are automatically disqualified from working with people with a disability. These offences include murder, serious assault and sexual assault of a child or a vulnerable person.

A second category of offences, presumptively disqualifying offences, will also result in persons who have been found guilty or who have pending charges for such offences being automatically disqualified from working with people with disability unless there are exceptional circumstances that show they are not a risk to people with disability. These offences include manslaughter, neglect or ill treatment of a person under care, and fraud and deception offences. Persons granted a clearance are permitted to provide NDIS supports.

The South Australian Civil and Administrative Tribunal will have the jurisdiction to review certain decisions related to NDIS worker checks. An NDIS worker check clearance will be valid for five years and portable across jurisdictions. Where a person applies for and is issued with a clearance while their current clearance is still active, the five-year validity period of the new clearance commences from the date that the previous clearance expires. This ensures that there is no penalty if a worker renews their clearance before their last clearance expires.

The central assessment unit will be empowered to suspend a person's clearance whilst a reassessment is undertaken. A suspension may be imposed if there is evidence—for example, obtained through monitoring—that a person is likely to present a risk of harm. When fully implemented, the NDIS worker check will feature national ongoing monitoring of criminal records and workplace records, not just state monitoring. All states and territories will upload the outcome of the screening decisions to a national database administered by the commonwealth. The national database will ensure workers who are excluded by one state or territory do not apply elsewhere. It will also allow employers to verify the clearance status of their workers and will support national continuous monitoring of workers for any new criminal or workplace records.

Transitional provisions will be agreed with the commonwealth, and it is proposed that current disability clearances will be recognised as an NDIS check in lieu of an NDIS worker check clearance for the transitional period. The administrative amendments of the bill aim to standardise the mechanisms of screening processes, risk assessment and decision-making. This includes:

  • identifying specific categories of offences for which an applicant will be presumed to be excluded, unless they can prove exceptional circumstances;
  • consequential amendments to the prohibited persons act and the DI Act to reflect the changes made by the these provisions and standardise provisions between the screening types;
  • enabling the screening authority to establish a scheme for worker screening through regulations for screenings other than WWCCs and NDIS worker checks; and
  • facilitating information sharing between South Australia, the commonwealth and other jurisdictions when a person has been prohibited.

The powers include the sharing of disciplinary misconduct child protection information or any other information that is relevant to the screening process or risk assessment. It also inserts provisions that facilitate the sharing and receipt of information with the commonwealth and other jurisdictions when a person has been prohibited.

Members, I commend the bill to you for your consideration after its lengthy assessment in another place, and I seek leave to have the explanation of clauses inserted in Hansard without my reading it.

Leave granted.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Child Safety (Prohibited Persons) Act 2016

4—Amendment of section 6—Meaning of child-related work and work with children

This clause inserts new subsection (1a) into section 6 of the principal Act, clarifying that the circumstances specified do not amount to child-related work.

5—Amendment of section 9—Meaning of excluded person

This clause deletes paragraphs (a) and (b) from section 9(1) of the principal Act, instead addressing those matters in clause 5 by excluding them from the definition of child-related work. It also inserts new subsection (1a) disapplying subsection (1) of section 9 in relation to a person who undertakes paid work with children on less than 7 days in any 12 month period.

6—Amendment of section 12—Interaction with other Acts and laws

This clause makes a consequential amendment to section 12 of the principal Act to reflect the changes made by new section 26A of the Act.

7—Amendment of section 21—Functions

This clause amends section 21 of the principal Act to add screening and other functions under the Disability Inclusion Act 2018 to the functions of the central assessment unit.

8—Insertion of section 26A

This clause inserts new section 26A into the principal Act. The new section sets out provisions that will apply to the conduct of a working with children check in respect of a person who has been found guilty of a presumptive disqualification offence.

The effect of the provision is that certain persons will be presumed to pose an unacceptable risk to children, and will be prohibited from working with children unless they satisfy the central assessment unit that the offending should be disregarded, or that exceptional circumstances exist in relation to the person such that the person does not appear, or no longer appears, to pose an unacceptable risk to children.

The clause also defines 'presumptive disqualification offence'.

9—Insertion of section 33A

This clause inserts new section 33A into the principal Act, requiring persons who did not pay a fee for the conduct of their working with children check on the basis that they are a volunteer to pay a fee should they commence working with children other than as a volunteer. It is an offence to fail to comply with the requirement.

10—Amendment of section 34—Records management system

This clause amends section 34 of the principal Act to clarify that the central assessment unit need only include information on the records management system if they are in possession of the information.

11—Amendment of section 38—Court to provide notice of certain findings of guilt to central assessment unit

This clause makes a consequential amendment to section 38 of the principal Act to reflect the changes made by new section 26A of the Act.

12—Substitution of section 39

This clause inserts a new section 39 of the principal Act to reflect the changes made by new section 26A of the Act.

13—Insertion of section 39A

This clause inserts new section 39A into the principal Act to require reporting bodies, as defined by the new section, to notify the central assessment unit if they suspect a person with whom the body is dealing to pose an unacceptable risk to children.

The new section also allows such bodies to provide information to the central assessment unit any information on any matter relevant to the operation of this Act.

14—Insertion of Part 5 Division 5

This clause inserts new Division 5 into Part 5 of the principal Act, with new sections 42A to 42G providing for the provision of relevant information to and from the central assessment unit respectively.

15—Amendment of section 53—Regulations

This clause amends section 53(2) of the principal Act to insert an express power to make regulations relating to the provision of information or documents.

Part 3—Amendment of Children's Protection Law Reform (Transitional Arrangements and Related Amendments) Act 2017

16—Insertion of sections 8A and 8B

This clause inserts new sections 8A and 8B into the principal Act as follows:

8A—Recognition of certain assessments of relevant history as working with children checks

This section recognises certain assessments of relevant history conducted in accordance with regulation 6(1)(a) of the Children's Protection Regulations 2010 within the 3 years preceding the commencement of this section as working with children checks in respect of the person conducted under the Child Safety (Prohibited Persons) Act 2016, subject to the conditions set out in the new section.

8B—Transitional provisions—certain emergency service workers

This section conditionally disapplies certain sections of the Child Safety (Prohibited Persons) Act 2016 in respect of emergency workers during the transitional period (as defined by the principal Act).

17—Amendment of section 43—Amendment of section 5—Interpretation

This clause deletes section 43(1) of the principal Act.

Part 4—Amendment of Disability Inclusion Act 2018

18—Amendment of long title

This clause makes a consequential amendment to the long title of the principal Act.

19—Amendment of section 3—Interpretation

This clause amends section 3 of the principal Act to insert definitions of central assessment unit and Registrar.

20—Insertion of Part 5A

This clause inserts new Part 5A into the principal Act as follows, with the new Part (predicated on National Disability Insurance Scheme (Worker Checks) Act 2018 of NSW) forming part of a nationally consistent scheme for screening of certain workers for the purposes of the NDIS scheme:

Part 5A—Screening of NDIS workers

Division 1—Preliminary

18A—Interpretation

This section defines key terms used in the proposed Part.

18B—Meaning of disqualified and presumptively disqualified persons

This section defines persons who are disqualified persons, and presumptively disqualified persons, for the purposes of the proposed Part.

18C—Criminal intelligence

This section is a standard provision relating to the classification and protection of information that is criminal intelligence.

18D—Protected information

This section provides that the Registrar may, in accordance with any requirements set out in the guidelines, classify specified information as protected information (a term defined in new section 18A but generally protecting the identify of people with disability, and also including specified child protection information). Information so classified is treated and protection in the same way as criminal intelligence.

18E—Powers of delegation

This section is a standard power of delegation in respect of functions and powers of the central assessment unit and the Registrar of that unit under the proposed Part.

18F—Pending applications to be disregarded

This section clarifies the position in this State that a person must actually have a clearance before undertaking NDIS work, that is to say that merely having applied for a clearance is not enough.

Division 2—Obtaining an NDIS worker check clearance

18G—Application for NDIS worker check clearance

This section sets out how a person can apply for an NDIS worker clearance.

18H—Certain persons not permitted to apply for NDIS worker check clearance

This section sets out persons who are not permitted to apply, or are banned from applying, for a clearance under the proposed Part, and makes related procedural provisions.

18I—Determination of application—grant of NDIS worker check clearance

This section provides that an application for a clearance under the proposed Part must be granted except as is set out in the section.

18J—Determination of application—issue of NDIS worker check exclusion

This section provides when the central assessment unit must issue an NDIS worker check exclusion in relation to an applicant for an NDIS worker check clearance.

18K—Certain persons presumed to pose risk of harm to people with disability

This section sets out provisions that apply in relation to determination of an application for a clearance in respect of a person who has been found guilty of a presumptive disqualification offence, in particular that the person will be presumed to pose a risk of harm to people with disability and be excluded unless the person satisfies the central assessment unit of the matters referred to in subsection (1)(c)(i) and (ii).

18L—Notice of grant of NDIS worker check clearance or issue of NDIS worker check exclusion

This section sets out how the central assessment unit is to give notice of the grant of a clearance, or issue of an exclusion, and allows the unit to notify notifiable persons in relation to the applicant.

Division 3—Risk assessment

18M—Nature of risk assessment

This section sets out the nature of a risk assessment of a person under the proposed Part, namely that the central assessment unit is to assess and determine whether the person poses a risk of harm to persons with disability.

18N—Requirement for risk assessment

This section sets out when a risk assessment of a person is required under the proposed Part.

18O—Matters to be considered in risk assessment

This section sets out the matters that the central assessment unit is to consider when undertaking a risk assessment under the proposed Part.

Division 4—Duration and termination of NDIS worker check clearances and exclusions

18P—Duration of NDIS worker check clearance

This section sets out that an NDIS worker clearance remains in force for 5 years, unless it is cancelled sooner under the Part. The section also allows for the extension of the duration of a clearance for up to 6 months after it would otherwise have expired.

18Q—Duration of NDIS worker check exclusion

This section sets out that an NDIS worker exclusion issued to a disqualified person remains in force indefinitely. Any other NDIS worker exclusion remains in force for 5 years, unless it is cancelled sooner under the Part.

18R—Suspension of NDIS worker check clearance

This section enables the central assessment unit to suspend an NDIS worker clearance if the unit is of the opinion that there is a reasonable likelihood that a risk assessment of the holder will determine that the holder poses a risk of harm to persons with disability.

18S—Cancellation of NDIS worker check clearance

This section sets out when the central assessment unit must, and may, cancel the clearance of a person, and makes procedural provision in respect of such cancellations.

18T—Cancellation of NDIS worker check clearance at request of holder

This section provides that a person may, by written notice to the central assessment unit, surrender their clearance, and that the unit must then cancel the clearance. The section also sets out circumstances in which the unit must refuse to cancel a clearance under the section.

Division 5—Information gathering and sharing

Subdivision 1—Information gathering

18U—Court to provide notice of certain findings of guilt to central assessment unit

This section requires a court that finds a person guilty of a disqualification offence or presumptive disqualification offence to provide specified information to the central assessment unit.

18V—Commissioner of Police to provide information to central assessment unit

This section requires the Commissioner of Police to provide specified information to the central assessment unit where a person is charged with a disqualification offence or presumptive disqualification offence. The Commissioner of Police may also disclose to the central assessment unit any information on any matter relevant to the operation of the principal Act.

18W—Power to require information from applicant or clearance holder

This section empowers the central assessment unit to require information from an applicant for, or holder of, a clearance, and allows the unit to terminate an application or cancel a clearance for non-compliance with the requirement in accordance with the section.

18X—Power to require information from other persons

This section empowers the central assessment unit to require any person to provide information relevant to whether a person poses a risk of harm to persons with disability for the specified purposes. The section also sets out how compliance with the requirement can be enforced, including an offence where a person fails to comply with an enforcement notice.

Subdivision 2—Information sharing and use

18Y—Central assessment unit may disclose etc information with other jurisdictions

This section allows the central assessment unit to receive and make use of information relevant to the functions of the central assessment unit under this Part from any person or body in this or any other jurisdiction.

The section also allows the central assessment unit to disclose information (not being information classified by the Commissioner of Police as criminal intelligence) in the possession of the unit to a prescribed person or body in another State or Territory for an NDIS purpose.

18Z—Access to police information

This section authorises the limited disclosure by the Commissioner of Police of certain information relevant to determining whether a person who engages or proposes to engage in NDIS work poses a risk of harm to persons with disability.

18ZA—Provision of information to central assessment unit

This section provides that any person or body can provide to the central assessment unit any information that the person or body reasonably believes is relevant to the functions of the central assessment unit under this Part, and will incur no liability for doing so.

18ZB—Provision of information to NDIS employers and participants

This section provides that the central assessment unit may provide certain information to NDIS employers and participants.

18ZC—Power to retain information etc indefinitely

This section provides that the central assessment unit may retain certain information and documents indefinitely.

Subdivision 3—Miscellaneous

18ZD—Notification by reporting bodies of conduct requiring risk assessment

This section requires reporting bodies, as defined, to notify the central assessment unit of the name and other identifying particulars of any person against whom the reporting body has made a finding that the person has engaged in conduct that constitutes circumstances prescribed by the regulations as requiring a risk assessment of the person.

18ZE—Information sharing for national register or database

This section allows the central assessment unit to disclose information obtained in the operation or administration of the proposed Part to an authorised person for the purpose of providing relevant information for entry in a national register or database established under the NDIS Act.

18ZF—Information sharing for research, monitoring and auditing purposes

This section allows the central assessment unit to disclose information obtained in the operation or administration of the proposed Part to an authorised person for the purpose of providing relevant information for use for the purposes of research into the operation of a relevant law, or auditing of compliance with such laws.

18ZG—Disclosure of information about offences

This section allows an authorised person to disclose to a law enforcement agency of the State or any other jurisdiction information obtained as a result of the exercise of a function under this Part that indicates that a relevant offence may have been committed, or that constitutes evidence of a relevant offence.

18ZH—Disclosure of information to prevent significant harm

This section allows an authorised person under the proposed Part to disclose to an appropriate person or body information obtained in the operation or administration of the proposed Part if there are reasonable grounds to suspect that there is a risk of significant harm to a person with disability, or to a child or other vulnerable person, or to a class of such persons, and the disclosure is reasonably necessary to prevent that harm.

Division 6—Review of decisions by South Australian Civil and Administrative Tribunal

18ZI—Review of decisions by South Australian Civil and Administrative Tribunal

This section confers jurisdiction on the SACAT to review certain decisions under the proposed Part.

Division 7—Miscellaneous

18ZJ—Fee payable where volunteer undertakes paid employment

This section requires the holder of a clearance obtained without cost as a volunteer to pay a prescribed fee if they commence paid work utilising the clearance. However, the requirement does not apply to a person who performs less than 7 days paid work in any 12 month period.

18ZK—Effect of Part on other rights and procedures

This section clarifies the operation of the proposed Part in respect of the rights of employees and their employment.

18ZL—Limitation of liability

This section confers immunity on the Crown, the central assessment unit and other persons acting in good faith under the proposed Part.

18ZM—False or misleading statements

This section creates an offence for a person to knowingly make a false or misleading statement in information provided under the proposed Part.

18ZN—Evidentiary provision

This section allows certain matters in legal proceedings to be proved by means of certificate.

18ZO—Failure to give notice of decisions

This section provides that a failure to give notice of a decision as required by this Part does not, of itself, affect the validity or effect of the decision.

18ZP—Central assessment unit may seek external advice

This section provides the central assessment unit with the ability to seek expert or professional advice in relation to a decision or determination.

21—Amendment of section 19—Interpretation

This clause amends section 19 of the principal Act to insert or remove the definition of key terms.

22—Insertion of sections 22A to 22E

This clause inserts sections 22A to 22E into the principal Act as follows:

22A—Steps employers must take before employing person in prescribed position

22B—Employer to ensure screening check conducted at least every 5 years

22C—Employer to advise central assessment unit of certain information

These three sections are the equivalent of sections 17, 18 and 19 of the Child Safety (Prohibited Persons) Act 2016, and are included to ensure consistency with that Act. Collectively, the sections impose requirements on employers to ensure employees are the subject of current screening checks and are not prohibited persons.

22D—Records management system

This section requires the central assessment unit to establish a records management system for the purposes of the proposed Part, although the system may be combined with the records management system under the Child Safety (Prohibited Persons) Act 2016.

22E—Inspection of records management system

This section provides for the inspection of the records management system required under proposed section 22D

23—Amendment of section 23—Regulations to set out scheme for screening checks

This clause amends section 23(2) of the principal Act to reflect the amendments made by this measure.

24—Amendment of section 33—Regulations

This clause amends section 33 of the principal Act to increase the maximum fine that may be set under the regulations to $50,000, to allow transitional regulations to be made following the amendment of the principal Act by this measure and to provide an express power to make regulations in relation to the provision of information or documents to the central assessment unit.

25—Insertion of Schedule 2

This Schedule makes transitional provision in respect of applications for assessments of relevant history under the Disability Services Act 1993 on foot but not determined on commencement of this measure. The Schedule also recognises certain assessments of relevant history granted under that Act within the preceding 3 years as NDIS worker clearances.