Worker Screening Legislation

Will Holmes à Court
Will Holmes à Court
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Part 2—NDIS Practice Standards relating to worker screening

Division 1—Purpose of this Part
8  Purpose of this Part 
  • (1)  This Part is made for the purposes of subsection 73T(1) of the Act.
  • (2)  It specifies the standards concerning the screening of individuals who engage in risk assessed roles in the provision of supports or services by registered NDIS providers.
Note 1: Applicants must be assessed by an approved quality auditor as meeting the applicable standards and other requirements prescribed by the NDIS Practice Standards in order to be registered as a registered NDIS provider (see paragraph 73E(1)(c) of the Act).
Note 2: Non‑compliance with the NDIS Practice Standards by a registered NDIS provider constitutes a breach of a condition of registration (see paragraph 73F(2)(c) and section 73J of the Act). 
Note 3: Part 4 of this instrument contains transitional and special arrangements that apply instead of, or as well as, some of the rules in this Part in certain circumstances: see sections 14 and 14A.
Division 2—Applicable standards and assessment process
9  Applicable standards, requirements and assessment processes
  1. To be registered to provide any class of support, an applicant must be assessed by an approved quality auditor, by verification, as meeting the standards and requirements specified in this Part (and Part 4 (if applicable)) as if any reference in those Parts to “registered NDIS provider” were a reference to “applicant”.
  2. To remain registered to provide any class of support, a registered NDIS provider must continue to comply with the standards specified in this Part (and Part 4 (if applicable)).
10  Assessment by certification meets the requirement to be assessed by verification
For the purposes of this Part, if compliance with an applicable standard must be assessed using verification, the requirement is met if compliance with the standard is assessed using certification.

Division 3—Risk assessment and management
11  Identification of risk assessed roles
A registered NDIS provider must:
  • (a)  assess all roles that will be undertaken with the registered NDIS provider in relation to the provision of supports or services to any person with a disability by the following persons:
    • (i)  workers;                           
    • (ii)  personnel; and
  • (b)  identify each role assessed under paragraph (a) that is a risk assessed role.
  • Note:  A registered NDIS provider who is an individual is a worker: see the definition of worker in section 5
12  Risk management plan
  1. A registered NDIS provider must develop and maintain a written risk management plan for protecting people with disability while any workers or personnel are: 
    • (a)  engaged in a risk-assessed role with the registered NDIS provider; and 
    • (b)  in the process of obtaining a clearance. Note: A registered NDIS provider who is an individual is a worker: see the definition of worker in section 5. 
  2. The risk management plan must: 
    • (a)  identify and describe each risk to a person with a disability for whom the registered NDIS provider provides supports or services; and
    • (b)  explain how each risk will be managed.
  3. A registered NDIS provider must review the risk management plan if: 
    • (a)  the Commissioner requires the registered NDIS provider to do so; or 
    • (b)  there is a reportable incident involving a worker or any personnel. 
  4. A registered NDIS provider must implement the risk management plan unless otherwise agreed by the Commissioner.
Division 4—Worker screening clearance
13  Risk assessed roles restricted to workers or personnel with clearance
Subject to the exceptions contained in this Division, a registered NDIS provider that provides supports or services to a person with a disability in a participating jurisdiction:
  • (a)  must only allow a worker to engage in a risk-assessed role, if the worker has a clearance; and
  • (b)  must only allow an individual who is personnel to engage in a risk-assessed role, if the registered NDIS provider has:
    • (i)  identified to the relevant personnel provider each risk assessed role that the individual will engage in; and
    • (ii)  entered into an appropriate contract with the personnel provider for the individual; and
    • (iii)  taken reasonable steps to satisfy itself that the individual has a clearance; and
  • (c)  if the registered NDIS provider is an individual—must only engage in a risk-assessed role if the registered NDIS provider has a clearance.
14  Exceptions in relation to clearance
  • (1)  A registered NDIS provider may allow a person to engage in a risk-assessed role at a time when the person does not have clearance if:
    • (a)  all of the following apply:                    
      • (i)  the person is in the process of obtaining a clearance;
      • (ii)  the person is appropriately supervised by a person with a clearance;
      • (iii)  the registered NDIS provider is implementing a risk management plan developed and maintained in accordance with Division 3;
      • (iv)  the law of the participating jurisdiction in which the person provides supports or services to a person with a disability allows the person to engage in a risk-assessed role while that person is in the process of obtaining a clearance; or
    • (b)  all of the following apply:
      • (i)  the registered NDIS provider is complying with the transitional arrangements set out in Part 4 that apply in relation to the person in the participating jurisdiction in which supports or services are provided to a person with a disability;
      • (ii)  the person has not been issued with an interim bar that is in force and is not subject to an exclusion in relation to an application for an NDIS worker screening check;
      • (iii)  the person is not subject to a suspension that is in force in relation to clearance and has not had a clearance cancelled; or
    • (c)  the person is:
      • (i)  a secondary school student on a formal work experience placement with the registered NDIS provider; and
      • (ii)  directly supervised by a worker of the provider who has a clearance.
  • (2)  A registered NDIS provider who is an individual may engage in a risk-assessed role when the registered NDIS provider does not have a clearance at a time when:
    • (a)  all of the following apply:
      • (i)  the registered NDIS provider is in the process of obtaining a clearance;
      • (ii)  the registered NDIS provider is appropriately supervised by a person with a clearance;
      • (iii)  the registered NDIS provider is implementing a risk management plan developed and maintained in accordance with Division 3;
      • (iv)  the law of the participating jurisdiction in which the person provides services to a person with a disability allows the registered NDIS provider to engage in a risk-assessed role while the registered NDIS provider is in the process of obtaining a clearance; or
    • (b)  all of the following apply:
      • (i)  the registered NDIS provider is complying with the transitional arrangements set out in Part 4 that apply in relation to the person in the participating jurisdiction in which supports or services are provided to a person with a disability;
      • (ii)  the registered NDIS provider has not been issued with an interim bar that is in force and is not subject to an exclusion in relation to an application for an NDIS worker screening check;
      • (iii)  the registered NDIS provider is not subject to a suspension that is in force in relation to clearance and has not had a clearance cancelled.
14A  Circumstances in which exception does not apply in “no card, no start” participating jurisdictions
  • (1)  Paragraphs 14(1)(a) and 14(2)(a) do not apply to a person if:
    • (a)  the person has submitted an application for clearance to an NDIS worker screening unit; and
    • (b)  the law of the participating jurisdiction in which the application is submitted prohibits a person from engaging in a risk-assessed role while the person is in the process of obtaining a clearance; and
    • (c)  the person does not have an acceptable check that applies in that participating jurisdiction; and
    • (d)  a decision has not been made on the application.
  • (2)  For the purposes of paragraph (1)(c), a person has an acceptable check that applies in a participating jurisdiction if:
    • (a)  if the person is providing services to a participant in New South Wales—the person has an acceptable NSW check or an acceptable aged care provider check; or
    • (b)  if the person is providing services to a participant in South Australia—the person has an acceptable SA check or an acceptable aged care provider check; or
    • (c)  if the person is providing services to a participant in Victoria—the person is allowed to engage in a risk-assessed role because of subsection 25(3) or an acceptable aged care check; or
    • (d)  if the person is providing services to a participant in Queensland—the person is allowed to engage in a risk-assessed role because of subsection 26(3) or an acceptable aged care check; or
    • (e)  if the person is providing services to a participant in Tasmania—the person is allowed to engage in a risk-assessed role because of subsection 27(3) or an acceptable aged care check; or
    • (f)  if the person is providing services to a participant in the Australian Capital Territory—the person is allowed to engage in a risk-assessed role because of subsection 28(3) or an acceptable aged care check; or
    • (g)  if the person is providing services to a participant in the Northern Territory—the person is allowed to engage in a risk-assessed role because of subsection 29(3) or an acceptable aged care check; or
    • (h)  if the person is providing services to a participant in Western Australia—the person has an acceptable WA check or an acceptable aged care check.
15  When a person is in the process of obtaining a clearance
  • (1)  Subject to subsection (2), a person is in the process of obtaining a clearance during the period starting on the day on which the person submits a complete application for clearance to the relevant NDIS worker screening unit, and ending on the day on which a clearance or exclusion is made.
  • (2)  A person is not in the process of obtaining a clearance:
    • (a)  if the person has applied for an NDIS worker screening check on at least one prior occasion, and on the most recent prior occasion the person was subject to exclusion;
    • (b)  if the person has had a clearance on at least one prior occasion, and on the most recent prior occasion the clearance was revoked;
    • Note:          The NDIS worker screening law of a participating jurisdiction may refer to a revocation using a different term.  It may be referred to, for example, as an exclusion, because it has the effect of excluding a person from working with people with disability.
    • (c)  on any day after the application for an NDIS worker screening check is withdrawn by the person;
    • (d)  on any day after the application for an NDIS worker screening check is closed;
    • (e)  on any day when an interim bar is in force in relation to the person;
    • (f)  at any time the person is not being supervised in accordance with the requirements of section 14 of this instrument, as applicable; or
    • (g)  at any time a risk management plan required under this instrument is not being implemented.
  • (3)  For the purpose of this section, a person has submitted a complete application to the relevant NDIS worker screening unit if:
    • (a)  that unit has issued a notice in writing to the person confirming that the application has been made; and
    • (aa) a registered NDIS provider has confirmed to that unit that:
      • (i)  the person is, or intends to be, a worker; or
      • (ii)  if the registered NDIS provider is an individual—the person is the registered NDIS provider; and
    • (b)  if the person is a worker ‑ the registered NDIS provider with whom the person engages in a risk-assessed role has seen that notice; and
    • (c)  if the person is a worker ‑ the registered NDIS provider has made a record of the worker screening application number on that notice as required by section 18.
    • Note:          Section 2B of the Acts Interpretation Act 1901 provides that “writing” includes any mode of representing or reproducing words, figures, drawings or symbols in a visible form. As a result, electronic communications, such as an email or an SMS message, are capable of constituting a notice in writing.
  • (4)  For the purposes of paragraph 15(3)(aa), confirmation must be given in accordance with any applicable requirements of the NDIS worker screening law of the participating jurisdiction in which the application has been submitted.
Part 3—Record keeping requirements for worker screening
16  Purpose of this Part
  • (1)  This Part is made for the purposes of section 73Q of the Act.
  • (2)  It prescribes requirements in relation to records that a registered NDIS provider must keep in relation to the screening of individuals who engage in risk assessed roles with registered NDIS providers.
  • Note: Compliance with section 73Q and this Part is a condition of registration (see paragraph 73F(2)(d) of the Act), breach of which is a civil penalty provision (see section 73J of the Act).
17  Kinds of records which must be kept—records about risk assessed roles
  • (1)  A registered NDIS provider must keep a written list of all roles with the registered NDIS provider which are risk assessed roles that are engaged in by a person.
  • Note: Each risk assessed role with the registered NDIS provider must be included in the record, irrespective of whether the person who engages in the role is a worker, is personnel or is a registered NDIS provider who is an individual.
  • (2)  A registered NDIS provider must update the written list of roles which are risk assessed roles:
    • (a)  if a new risk assessed role is identified or an existing role is reclassified as a risk assessed role following a review;
    • (b)  within 20 business days of the new risk assessed role being identified, or the existing role being reclassified, as the case may be.
  • (3)   A list created or maintained for the purposes of this section must include:
    • (a)  the title or other organisational identifier for the role;
    • (b)  which paragraph or paragraphs of the definition of risk assessed role applies to the role;
    • (c)  a description of the role;
    • (d)  the date on which the role was assessed as being a risk assessed role;
    • (e)  the name and title of the person who assessed the role as being a risk assessed role.
18  Kinds of records which must be kept – records about workers
  • (1)  A registered NDIS provider must keep a written list of:
    • (a)  each worker who engages in a risk-assessed role; and
    • (b)  the information mentioned in subsection (3) in relation to each worker.
  • (2)  The registered NDIS provider must keep the written list up‑to‑date.
  • (3)  For the purposes of paragraph (1)(b), the written list must include the following information:
    • (a)  the worker’s full name, date of birth and address;
    • (b)  the risk assessed role or roles in which the worker engages;
    • (c)  if a registered NDIS provider may allow the worker to engage in a risk-assessed role without a clearance:
      • (i)  the exception under section 14 that applies in relation to the worker; and
      • (ii)  the start and end date of the period in which the exception under section 14 applies; and
      • (iii)  if the exception under section 14 requires the worker to be supervised—the name of the person who supervises the worker during this period;
    • (d)  if a registered NDIS provider may only allow the worker to engage in a risk-assessed role with a clearance:
      • (i)  the worker’s NDIS worker screening check application number; and
      • (ii)  the worker’s NDIS worker screening check number; and
      • (iii)  the worker’s NDIS worker screening check outcome and any expiry date for that outcome; and
      • (iv)  whether the worker’s clearance is subject to a decision to suspend or revoke a clearance, or any other decision which has the effect that the registered NDIS provider may not allow the worker to engage in a risk-assessed role; and
      • (v)  the nature of any decision mentioned in subparagraph (iv).
  • (4)  A registered NDIS provider must keep a copy of any record relating to:
    • (a)  an interim bar;
    • (b)  a suspension;
    • (c)  an exclusion; or
    • (d)  the action was taken by the provider in relation to paragraph (a), (b) or (c); in relation to any worker.
  • (5)  A registered NDIS provider must keep a copy of any record relating to:
    • (a)  allegations of any misconduct against any worker with an NDIS worker screening check clearance; and
    • (b)  action is taken, including any investigation, in response to paragraph (a).
19  Kinds of records which must be kept—personnel
A registered NDIS provider must keep a copy of:
  • (a)  any appropriate contract;
  • (b)  any record relating to the administration of the appropriate contract, including the enforcement of any obligation mentioned in subsection 5A(2);
  • (c)  any record of information provided to the NDIS provider about an individual who is personnel pursuant to the appropriate contract;
  • (d)  any record relating to its performance of subparagraph 13(b)(iii);
  • (e)  any record about an allegation of any misconduct against any individual who is personnel with an NDIS worker screening check clearance.
20  The form in which records must be kept
A registered NDIS provider must keep the list required by subsection 18(1) in a form that would allow an auditor to determine which workers were engaged in risk assessed roles with the provider on any given day in the seven years prior to the day the auditor examines the list.

21  The period for which records must be kept
A record subject to this Part must be kept for 7 years from the date the record is made.