South Australia: Disability Inclusion Act 2018 (SA)

South Australia Disability Inclusion Act 2018 An Act to promote the full inclusion in the community of people with disability; to assist people with disability to achieve their full potential as equal citizens; to promote improved access to mainstream supports and services by people with disability; to provide for NDIS worker check clearances and exclusions for the purposes of the National Disability Insurance Scheme; to provide for the screening of persons who want to work or volunteer with people with disability and to prohibit those who pose an unacceptable risk to people with disability from working or volunteering with them; to provide for a community visitor scheme; to provide for responsibilities of the State during and following the transition to the National Disability Insurance Scheme; and for other purposes. Contents Part 1—Preliminary 1 Short title 2 Commencement 3 Interpretation 4 Interaction with other laws 5 Act to bind, and impose criminal liability on, the Crown 6 Part 2 not to create legally enforceable rights etc Part 2—Objects and principles 7 Act to support United Nations Convention on the Rights of Persons with Disabilities etc 8 Objects 9 Principles Part 3—Administration 10 Functions of Chief Executive 11 Powers of delegation 12 Guidelines Part 4—State Disability Inclusion Plan 13 State Disability Inclusion Plan 14 Annual report on operation of State Disability Inclusion Plan 15 Review of State Disability Inclusion Plan Part 5—Disability access and inclusion plans 16 Disability access and inclusion plans 17 Annual report on operation of disability access and inclusion plan 18 Review of disability access and inclusion plans Part 5A—Screening of NDIS workers Division 1—Preliminary 18A Interpretation 18B Meaning of disqualified and presumptively disqualified persons 18C Criminal intelligence 18D Protected information 18E Powers of delegation 18F Pending applications to be disregarded Division 2—NDIS worker check clearances and exclusions 18G Application for NDIS worker check clearance 18H Certain persons not permitted to apply for NDIS worker check clearance 18I Determination of application—grant of NDIS worker check clearance 18J Determination of application—issue of NDIS worker check exclusion 18K Certain persons presumed to pose risk of harm to people with disability 18L Notice of grant of NDIS worker check clearance or issue of NDIS worker check exclusion Division 3—Risk assessment 18M Nature of risk assessment 18N Requirement for risk assessment 18O Matters to be considered in risk assessment Division 4—Duration and termination of NDIS worker check clearances and exclusions 18P Duration of NDIS worker check clearance 18Q Duration of NDIS worker check exclusion 18R Suspension of NDIS worker check clearance 18S Cancellation of NDIS worker check clearance 18T Cancellation of NDIS worker check clearance at request of holder Division 5—Information gathering and sharing Subdivision 1—Information gathering 18U Court to provide notice of certain findings of guilt to central assessment unit 18V Commissioner of Police to provide information to central assessment unit on charging of certain persons 18W Power to require information from applicant or clearance holder 18X Power to require information from other persons Subdivision 2—Information sharing and use 18Y Central assessment unit may disclose etc information with other jurisdictions 18Z Access to police information 18ZA Provision of information to central assessment unit 18ZB Provision of information to NDIS employers and participants 18ZC Power to retain information etc indefinitely Subdivision 3—Miscellaneous 18ZD Notification by reporting bodies of conduct requiring risk assessment 18ZE Information sharing for national register or database 18ZF Information sharing for research, monitoring and auditing purposes 18ZG Disclosure of information about offences 18ZH Disclosure of information to prevent significant harm Division 6—Review of decisions by South Australian Civil and Administrative Tribunal 18ZI Review of decisions by South Australian Civil and Administrative Tribunal Division 7—Miscellaneous 18ZJ Fee payable where volunteer undertakes paid employment 18ZK Effect of Part on other rights and procedures 18ZL Limitation of liability 18ZM False or misleading statements 18ZN Evidentiary provision 18ZO Failure to give notice of decisions 18ZP Central assessment unit may seek external advice Part 6—Screening of persons working with people with disability 19 Interpretation 20 Working with people with disability 21 Certain persons prohibited from working with people with disability 22 Working with people with disability without current screening check prohibited 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 22D Records management system 22E Inspection of records management system 23 Regulations to set out scheme for screening checks Part 6A—Restrictive practices Division 1—Preliminary 23A Application of Part 23B Interpretation 23C Meaning of detention 23D Prohibited restrictive practices 23E Limits on kinds of restrictive practices that may be used by person 23F Interaction with other Acts and laws 23G Principles 23H Minister to publish restrictive practices guidelines Division 2—Senior Authorising Officer 23I Senior Authorising Officer 23J Functions of Senior Authorising Officer 23K Power of delegation Division 3—Authorised Program Officers 23L Authorised Program Officers in respect of prescribed NDIS providers Division 4—Use of restrictive practices other than those involving detention 23M General provisions relating to use of restrictive practices 23N Authorised Program Officer may authorise use of level 1 restrictive practices 23O Authorisation of use of level 1 or 2 restrictive practices by Senior Authorising Officer 23P Revocation of authorisation to use restrictive practices Division 5—Information gathering and sharing 23Q Senior Authorising Officer may require information from State authorities 23R Senior Authorising Officer may require information from other persons 23S Senior Authorising Officer may notify NDIA or the NDIS Quality and Safeguards Commission 23T Senior Authorising Officer may disclose etc information to other jurisdictions 23U Disclosure of information to prevent harm 23V Disclosure of information for research purposes 23W Provision of other information to Senior Authorising Officer 23X Information sharing for national register or database Division 6—Dispute resolution 23Y Internal review by Senior Authorising Officer 23Z Review of decisions by South Australian Civil and Administrative Tribunal Division 7—Miscellaneous 23ZA Limitation of liability 23ZB Offence to hinder or obstruct Senior Authorising Officer etc 23ZC False or misleading statements 23ZD Evidentiary provision 23ZE Minister to provide annual report on operation of Part to Parliament Part 7—Community Visitor Scheme 24 Community Visitor Scheme Part 8—National Disability Insurance Scheme 25 Regulations for the purpose of implementing etc the National Disability Insurance Scheme Part 9—Information gathering and sharing 26 Chief Executive may require State authority to provide report 27 Sharing of information between certain persons and bodies 28 Interaction with Public Sector (Data Sharing) Act 2016 Part 10—Miscellaneous 29 Confidentiality 30 Victimisation 31 Service 32 Review of Act 33 Regulations Schedule 1—Repeal Part 5—Repeal of Disability Services Act 1993 5 Repeal of Disability Services Act 1993 Schedule 2—Transitional provisions relating to NDIS worker check clearances 1 Interpretation 2 Certain applications for assessments of relevant history taken to be application for NDIS worker check clearance 3 Recognition of certain assessments of relevant history as NDIS worker check clearance Legislative history The Parliament of South Australia enacts as follows: Part 1—Preliminary 1—Short title This Act may be cited as the Disability Inclusion Act 2018. 2—Commencement (1) This Act will come into operation on a day to be fixed by proclamation. (2) Section 7(5) of the Acts Interpretation Act 1915 does not apply to this Act or to a provision of this Act. 3—Interpretation (1) In this Act, unless the contrary intention appears— central assessment unit means the central assessment unit established under the Child Safety (Prohibited Persons) Act 2016; Chief Executive means the Chief Executive of the administrative unit of the Public Service that is responsible for assisting a Minister in the administration of this Act; community visitor means a community visitor appointed under Part 7; disability, in relation to a person, includes long-term physical, psycho‑social, intellectual, cognitive, neurological or sensory impairment, or a combination of any of these impairments, which in interaction with various barriers may hinder the person's full and effective participation in society on an equal basis with others; disability access and inclusion plan, in relation to a State authority, means the disability access and inclusion plan, as in force from time to time, prepared by the State authority under section 16; National Disability Insurance Scheme or NDIS means the National Disability Insurance Scheme under the National Disability Insurance Scheme Act 2013 of the Commonwealth; Registrar means the Registrar of the central assessment unit within the meaning of the Child Safety (Prohibited Persons) Act 2016; State authority means— (a) an administrative unit (within the meaning of the Public Sector Act 2009); or (b) an agency or instrumentality of the Crown, or agency or instrumentality of the Crown of a class, prescribed by the regulations for the purposes of this paragraph; or (c) a local council constituted under the Local Government Act 1999; or (d) any other person or body, or person or body of a class, declared by the regulations to be included in the ambit of this paragraph for the purposes of this Act, but does not include a person or body, or person or body of a class, declared by the regulations to be excluded from the ambit of this definition for the purposes of this Act; State Disability Inclusion Plan means the State Disability Inclusion Plan prepared under section 13, as in force from time to time; Tribunal means the South Australian Civil and Administrative Tribunal under the South Australian Civil and Administrative Tribunal Act 2013. (2) For the purposes of this Act, a reference to mainstream supports and services will be taken to be a reference to supports and services (however described) that are not NDIS‑funded supports and services. 4—Interaction with other laws Except where the contrary intention appears, the provisions of this Act are in addition to, and do not derogate from, any other Act or law. 5—Act to bind, and impose criminal liability on, the Crown (1) This Act binds the Crown in right of this jurisdiction and, in so far as the legislative power of the Parliament permits, the Crown in all its other capacities. (2) The Crown is liable for an offence against this Act. (3) If the Crown is guilty of an offence against this Act, the penalty that may be imposed on the Crown is the penalty that may be imposed on a body corporate. 6—Part 2 not to create legally enforceable rights etc Part 2 of this Act, the State Disability Inclusion Plan and disability access and inclusion plans are an expression of policy and do not in themselves— (a) create legally enforceable rights or entitlements; or (b) affect existing rights or liabilities (whether of a substantive, procedural or other nature). Part 2—Objects and principles 7—Act to support United Nations Convention on the Rights of Persons with Disabilities etc It is the intention of the Parliament of South Australia that, to such an extent as may be reasonably practicable, the operation, administration and enforcement of this Act is to support and further the principles and purposes of the United Nations Convention on the Rights of Persons with Disabilities, as well as any other relevant international human rights instruments affecting people with disability, as in force from time to time. 8—Objects The objects of this Act include— (a) acknowledging that people with disability have the same human rights as other members of the community and that the State and the community have a responsibility to facilitate the exercise of those rights; and (b) promoting the independence and social and economic inclusion of people with disability; and (c) providing safeguards in relation to the delivery of all supports and services for people with disability; and (d) providing a framework to support a whole of Government approach to improving the inclusion of all South Australians with disability in all areas of life in this State; and (e) articulating and facilitating the roles of the State during and following the transition to the National Disability Insurance Scheme. 9—Principles (1) The following principles are to be observed in the operation, administration and enforcement of this Act: (a) people with disability have the same fundamental human rights and responsibilities, and the same right to autonomy, as other members of the community; (b) people with disability have an inherent right to respect for their worth and dignity as individuals; (c) people with disability have the right to participate in and contribute to social and economic life and should be supported to develop and enhance their ability to do so; (d) people with disability have the right to realise their physical, social, sexual, reproductive, emotional and intellectual capacities; (e) people with disability have the right to make decisions that affect their lives including decisions involving risk to the full extent of their capacity to do so; (f) in cases where a person with disability wants or requires assistance in making a decision, supported decision‑making is to be preferred over substituted decision‑making; (g) people with disability have the right to access information in a way that is appropriate for their disability and cultural background, to enable them to make informed choices; (h) people with disability have the right to respect for their cultural or linguistic diversity, age, gender, sexual orientation and religious beliefs; (i) people with disability have the same rights to privacy and confidentiality as other members of the community; (j) people with disability have the right to live free from neglect, abuse and exploitation; (k) people with disability have the same rights as other members of the community to pursue complaints and access justice; (l) the crucial role of families, carers and other significant persons in the lives of people with disability, and the importance of preserving relationships with families, carers and other significant persons, is to be acknowledged and respected; (m) people with disability are free to associate with families, carers and other persons as they see fit, and should be supported where necessary to engage in family, social and friendship activities; (n) the needs of children with disability as they develop, and their rights as equal members of the community, are to be acknowledged and respected; (o) the changing abilities, strengths, goals and needs of people with disability as they age are to be acknowledged and respected. (2) In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to women with disability: (a) many women with disability face multiple disadvantages and are potentially more vulnerable to risk of abuse or exploitation; (b) the provision of mainstream supports and services to women with disability should recognise and seek to address such disadvantage and vulnerability, and should be informed by working in partnership with women with disability to enhance their lives. (3) In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to children with disability: (a) children with disability have the right to a full life in conditions that ensure the child's dignity, promote self-reliance and facilitate the child's active and full participation in family, cultural and social life; (b) decisions affecting children with disability under this Act should be child‑centred; (c) without limiting paragraph (b), the responsibilities, rights and duties of a parent or other person legally responsible for a child with disability must also be considered in relation to giving appropriate direction and guidance for the child's welfare; (d) the views of a child with disability will be listened to, and they should be given developmentally appropriate opportunities to participate in decisions that affect them; (e) children with disability are more vulnerable to risk of abuse or exploitation; (f) the developmental needs of children with disability must be taken into account, with particular focus on critical periods in their childhood and adolescence; (g) the provision of mainstream supports and services to children with disability should recognise and seek to address such risks and vulnerabilities, and should be informed by working in partnership with children with disability, and in consultation with their parents and other persons responsible for them, to enhance their lives. (4) In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to Aboriginal and Torres Strait Islander people with disability: (a) Aboriginal and Torres Strait Islander people with disability have a right to respect and acknowledgment as the first peoples of Australia and for their unique history, culture and kinship relationships and connection to their traditional land and waters; (b) many Aboriginal and Torres Strait Islander people with disability face multiple disadvantages; (c) the provision of mainstream supports and services to Aboriginal and Torres Strait Islander people with disability should recognise and seek to address such disadvantage, and should be informed by working in partnership with Aboriginal and Torres Strait Islander people with disability to enhance their lives. (5) In addition to the principles set out in any other provision of this section, the following risks and principles are to be acknowledged and addressed in the operation, administration and enforcement of this Act as it relates to people with disability from culturally and linguistically diverse backgrounds: (a) cultural, language and other differences create barriers to providing supports and services to people with disability from culturally and linguistically diverse backgrounds; (b) the provision of mainstream supports and services to people with disability from culturally and linguistically diverse backgrounds should recognise and seek to address those barriers, and should be informed by working in partnership with people with disability from culturally and linguistically diverse backgrounds, and in consultation with their communities, to enhance their lives. (6) Each person or body engaged in the administration, operation or enforcement of this Act must exercise their powers and perform their functions so as to give effect to the principles set out in this section. Part 3—Administration 10—Functions of Chief Executive (1) The functions of the Chief Executive under this Act include— (a) preparing and publishing guidelines for the purposes of this Act; and (b) preparing such reports as may be required under this Act or by the Minister; and (c) monitoring the extent to which the objects and principles of this Act are being achieved; and (d) monitoring the extent to which the State Disability Inclusion Plan and the disability access and inclusion plans have been, or are being, implemented; and (e) monitoring the compliance of State authorities with the requirements under Part 5; and (f) making recommendations to the Minister in relation to the compliance of State authorities with the requirements under Part 5; and (g) advising the Minister on any matters related to the operation, administration and enforcement of this Act; and (h) such other functions as may be assigned to the Chief Executive under this or any other Act or by the Minister. (2) The Chief Executive has such powers as may be necessary or expedient for the performance of the Chief Executive's functions. 11—Powers of delegation (1) The Minister or Chief Executive may delegate a function or power (other than a prescribed function or power) under this Act to a specified person or body (including a person for the time being holding or acting in a specified office or position). (2) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the ability of the Minister or Chief Executive (as the case requires) to act in any matter; and (d) is revocable at will. (3) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. 12—Guidelines (1) The Minister may— (a) publish guidelines in relation to the preparation and contents of disability access and inclusion plans; and (b) publish such other guidelines as the Minister thinks appropriate for the purposes of this Act. (2) The Minister may vary, substitute or revoke guidelines under this section. (3) The Minister must cause guidelines under this section to be published on a website determined by the Minister. Part 4—State Disability Inclusion Plan 13—State Disability Inclusion Plan (1) There is to be a State Disability Inclusion Plan. (2) The State Disability Inclusion Plan is to be prepared by the Minister in accordance with this section. (3) The State Disability Inclusion Plan— (a) must set out whole‑of‑government policies and measures for achieving the objects of this Act throughout the State (and, in particular, measures that further the goal of achieving full inclusion in the community, and the achievement of their full potential as equal citizens, of people with disability); and (b) must provide for collaboration and coordination among State authorities and other entities in relation to the provision of mainstream supports and services to people with disability; and (c) must contain such other provisions as may be required by the regulations. (4) In preparing the State Disability Inclusion Plan, the Minister— (a) must, in accordance with any requirements set out in the regulations, consult with people with disability and persons or bodies representing the interests of people with disability (and may consult with any other persons or bodies that the Minister thinks fit); and (b) must call for submissions from members of the public in accordance with a scheme set out in the regulations (and must have regard to the submissions made in response to the call); and (c) must comply with any other requirements prescribed by the regulations. (5) The Minister may vary the State Disability Inclusion Plan at any time in accordance with any requirements set out in the regulations for the purposes of this subsection. (6) The Minister must cause the State Disability Inclusion Plan, and any variation of the plan, to be published in the Gazette. (7) The State Disability Inclusion Plan, and any variation of the plan, has effect from the day on which it is published in the Gazette. (8) The Minister must, within 6 sitting days after the State Disability Inclusion Plan or any variation is published in the Gazette, cause a copy of the State Disability Inclusion Plan, or the plan as varied, (as the case requires) to be laid before both Houses of Parliament. (9) The Minister must publish the State Disability Inclusion Plan, and any variation of the plan, on a website determined by the Minister. (10) However, a failure to comply with a provision of this section does not affect the validity of the State Disability Inclusion Plan. (11) Each prescribed person or body must, in carrying out its functions or exercising its powers, have regard to, and seek to give effect to, the State Disability Inclusion Plan (however, a prescribed person or body will be taken not to be in breach of this subsection if the State authority is acting in accordance with a requirement under this or any other Act or law). (12) In this section— prescribed person or body means— (a) each State authority; and (b) each public sector agency (within the meaning of the Public Sector Act 2009); and (c) any other person or body, or person or body of a class, prescribed by the regulations for the purposes of this paragraph. 14—Annual report on operation of State Disability Inclusion Plan (1) The Chief Executive must, on or before 31 December in each year, report to the Minister on the operation of the State Disability Inclusion Plan during the preceding financial year. (2) The Minister must, within 6 sitting days after receiving a report from the Chief Executive, have copies of the report laid before both Houses of Parliament. 15—Review of State Disability Inclusion Plan (1) The Minister must cause a review of the State Disability Inclusion Plan to be undertaken at least once in each 4 year period, and a report on the review to be prepared and submitted to the Minister. (2) The Minister must cause a copy of the report submitted under subsection (1) to be laid before both Houses of Parliament within 6 sitting days after receiving the report. Part 5—Disability access and inclusion plans 16—Disability access and inclusion plans (1) There is to be a disability access and inclusion plan for each State authority. (2) A disability access and inclusion plan is to be prepared by the relevant State authority in accordance with this section. (3) A disability access and inclusion plan— (a) must set out the measures that the State authority intends to put in place to ensure that people with disability can access the mainstream supports and services provided by or on behalf of the State authority; and (b) must explain how the State authority proposes to give effect to the objects and principles set out in Part 2; and (c) must explain how the State authority proposes to give effect to the State Disability Inclusion Plan; and (d) must include strategies to support people with disability in the following areas: (i) access to built environs, events and facilities; (ii) access to information and communications; (iii) addressing the specific needs of people with disability in its programs and services; (iv) employment; and (e) must contain such other provisions as may be required by the guidelines published under section 12(1)(a) or the regulations. (4) Subject to this section, in preparing a disability access and inclusion plan, a State authority— (a) must comply with the guidelines published under section 12(1)(a); and (b) must, in accordance with any requirements set out in the regulations, consult with people with disability and persons or bodies representing the interests of people with disability (and may consult with any other persons or bodies that the State authority thinks fit); and (c) must call for submissions from members of the public in accordance with the scheme set out in the regulations (and must have regard to the submissions made in response to the call); and (d) must comply with any other requirements prescribed by the regulations. (5) Despite a preceding subsection, a local council may, with the approval of the Minister and in accordance with any requirements set out in the regulations, prepare a single disability access and inclusion plan to be the disability access and inclusion plan for— (a) that local council; and (b) 1 or more specified local councils, (and the plan will, for the purposes of this Act, be taken to be the disability access and inclusion plan for each such council). (6) A State authority may vary its disability access and inclusion plan at any time in accordance with any requirements prescribed by the regulations. (7) A State authority must publish (in a format that is accessible to people with disability) its disability access and inclusion plan, and any variation of the plan, on a website determined by the State authority. 17—Annual report on operation of disability access and inclusion plan (1) Each State authority must, on or before 31 October in each year, report to the Chief Executive on the operation of its disability access and inclusion plan during the preceding financial year (including a summary of the extent to which the disability access and inclusion plan has been implemented by the State authority). (2) The Chief Executive must, on or before 31 December in each year, provide to the Minister a report summarising the reports received under subsection (1) in respect of the preceding financial year. (3) A report under subsection (2) may be combined with a report under section 14(1). (4) The Minister must, within 6 sitting days after receiving a report from the Chief Executive under subsection (2), have copies of the report laid before both Houses of Parliament (and, if the report is combined with a report under section 14(1), then the requirement of this subsection will be satisfied on the report being laid before both Houses of Parliament in accordance with that section). 18—Review of disability access and inclusion plans (1) A State authority must cause a review of its disability access and inclusion plan to be undertaken at least once in each 4 year period, and a report on the review to be prepared and submitted to the State authority. (2) The State authority must cause a copy of the report submitted under subsection (1) to be provided to the Minister as soon as is reasonably practicable after receiving the report. Part 5A—Screening of NDIS workers Division 1—Preliminary 18A—Interpretation (1) In this Part— authorised person means— (a) the central assessment unit; or (b) a person or body exercising functions in the operation or administration of a relevant law; or (c) the NDIS Commission; or (d) a law enforcement agency of this or any other jurisdiction (including a jurisdiction outside Australia); or (e) any other person declared by the regulations to be included in the ambit of this paragraph; authorised purpose means any purpose that is for, or in connection with, the operation or administration of, or compliance with, a relevant law, and includes (without limitation) the following purposes: (a) verification of the identity of a person who is, or who has at any time been, an applicant for, or the holder of, a clearance or other authority under a relevant law; (b) consideration and determination of a person's application for a clearance or other authority under a relevant law; (c) assessing and determining under a relevant law whether a person poses a relevant risk of harm; (d) assessing and determining whether a risk assessment of a person is required under a relevant law; (e) ongoing monitoring of a person who holds a clearance or other authority under a relevant law for the purpose of determining whether the person requires a risk assessment or poses a relevant risk of harm; (f) administrative review (including internal review) of a decision under a relevant law; corresponding law means— (a) a law of the Commonwealth, or of another State or Territory, that corresponds to this Part; or (b) any other law of the Commonwealth, or of another State or Territory, that is prescribed by the regulations as a corresponding law for the purposes of this Part; criminal intelligence means information relating to actual or suspected criminal activity (whether in this State or elsewhere) the disclosure of which could reasonably be expected to prejudice criminal investigations, to enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement or to endanger a person's life or physical safety; disqualification offence means an offence, or class of offences, declared by the regulations to be a disqualification offence; disqualified person—see section 18B(1); engage means engage in any of the following capacities: (a) as a paid or unpaid employee; (b) as a self‑employed person or as a contractor or subcontractor; (c) as a volunteer; Intergovernmental Agreement means the agreement between the States, Territories and the Commonwealth titled Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme (including its Schedules), as in force from time to time; NDIS Act means the National Disability Insurance Scheme Act 2013 of the Commonwealth and includes the rules under that Act; NDIS Commission means the NDIS Quality and Safeguards Commission established under the NDIS Act; NDIS employer means a person who engages a person to do NDIS work; NDIS purpose means an authorised purpose where the reference to a relevant law in the definition of authorised purpose is limited to this Part, a corresponding law or the NDIS Act; NDIS work means work comprising, or in connection with, the provision of supports or services to people with disability under the National Disability Insurance Scheme, being work— (a) that is the subject of requirements under the NDIS Act for a person to hold a clearance under this Act or a corresponding law in order to be allowed by a registered NDIS provider to engage in that work; or (b) that the central assessment unit is satisfied is work in respect of which it is otherwise necessary or convenient for a person to hold a clearance to facilitate the person's engagement in that work; NDIS worker check clearance or clearance means an NDIS worker check clearance granted under this Part; NDIS worker check exclusion or exclusion means an NDIS worker check exclusion issued under this Part; notifiable person in relation to an applicant for a clearance or the holder of a clearance means— (a) any NDIS employer who engages or proposes to engage the applicant or holder; or (b) any other person, or class of persons, prescribed by the regulations for the purposes of this definition; presumptive disqualification offence means an offence, or class of offences, declared by the regulations to be a presumptive disqualification offence but does not include an offence that is a disqualification offence; presumptively disqualified person—see section 18B(3); protected information means information that may, if disclosed— (a) prejudice a criminal investigation; or (b) identify, or enable the identification of, a person with disability who has been harmed, or is at risk of harm; or (c) identify, or enable the identification of, a parent, guardian or family member of a person referred to in paragraph (b); or (d) identify, or enable the identification of, a person who has made a report or notification that a person with disability has been harmed, or may be at risk of harm (whether under this Act or otherwise); or (e) endanger a person's life or physical safety or wellbeing, and includes information that is protected information under the Child Safety (Prohibited Persons) Regulations 2019; relevant information, in relation to a person, means— (a) information relevant to verification of the identity of the person; or (b) information about the person disclosed in an application for a clearance or other authority under a relevant law; or (c) information relating to the person's criminal history in the State or any other jurisdiction; or (d) information about workplace misconduct by the person in the State or any other jurisdiction, being misconduct that concerns persons to whom a relevant risk of harm relates (whether or not such information was obtained in the course of, or relates to, disciplinary proceedings relating to the person); or (e) information about any order imposed on the person by a court relating to child protection, apprehended violence or domestic or family violence in the State or any other jurisdiction; or (f) information relevant to determining whether the person requires a risk assessment under a relevant law; or (g) information about the person's clearance history; or (h) information about any current or past engagement of the person by an NDIS employer in this or any other jurisdiction; or (i) other information relevant to determining whether the person poses a relevant risk of harm; relevant law means— (a) this Act; or (b) a corresponding law; or (c) the NDIS Act; or (d) the Child Safety (Prohibited Persons) Act 2016; or (e) any other law of the Commonwealth, or another State or Territory, prescribed by the regulations for the purposes of this paragraph; relevant risk of harm means a risk of harm to persons with whose protection a relevant law is concerned; risk assessment, of a person, means a risk assessment of the person under Division 3; risk of harm—see section 18M. (2) For the purposes of the definition of relevant information, a reference in that definition to information will be taken to include a reference to information— (a) whether the information was obtained before or after the commencement of this section; (b) whether the conduct, finding of guilt or other matter to which the information relates occurred before or after the commencement of this section; (c) whether the conduct, finding of guilt or other matter to which the information relates occurred in this State or another jurisdiction; (d) regardless of the outcome of any legal or other proceedings to which the information relates. (3) For the purposes of this Part, a reference to a person's clearance history will be taken to be a reference to the history of action taken under a relevant law in respect of an application for a clearance by the person, or a clearance held by the person under the relevant law, including any exclusion, risk assessment determination, refusal of an application and the suspension or cancellation of a clearance. (4) For the purposes of this Part, a reference to a person being found guilty of an offence will be taken to include a reference to— (a) a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of an offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or (b) any finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a). (5) For the purposes of this Part, a reference to a person who has been found guilty of a presumptive disqualification offence will be taken to include a reference to a person who has been charged with a disqualification offence or presumptive disqualification offence committed as an adult, but where the charge has not yet been finally determined. (6) For the purposes of this Part— (a) a self‑employed person who does NDIS work will be taken to be an NDIS employer who engages themselves to do that work; and (b) a person may do NDIS work as a volunteer on their own account (in which case the person is to be regarded as being self‑employed as a volunteer). (7) Except where the contrary intention appears, a term or phrase used in this Part that is defined in the NDIS Act has the same meaning as in that Act. (8) In the interpretation of this Part, consideration may be given to the provisions of the Intergovernmental Agreement. 18B—Meaning of disqualified and presumptively disqualified persons (1) For the purposes of this Part, a person is a disqualified person if the person has been found guilty of a disqualification offence committed as an adult (whether the offence was committed, or the finding of guilt made, before or after the commencement of this section). (2) Despite section 18A(4), for the purposes of subsection (1) a reference to a person being found guilty of a disqualification offence will be taken not to include a reference to— (a) a finding of a court under Part 8A of the Criminal Law Consolidation Act 1935 that the objective elements of a disqualification offence are established (whether or not the person was found not guilty of the offence, or was found to be mentally unfit to stand trial, pursuant to Division 2 or 3 of that Part); or (b) a finding of a court of another jurisdiction that corresponds to a finding referred to in paragraph (a). (3) For the purposes of this Part, a person is a presumptively disqualified person if— (a) the person has been found guilty of a presumptive disqualifying offence committed as an adult (whether the offence was committed, or the finding of guilt made, before or after the commencement of this section); or (b) a finding of a kind referred to in subsection (2) has been made in relation to the person. 18C—Criminal intelligence (1) If the central assessment unit makes a decision under this Part on the basis of information that is classified by the Commissioner of Police as criminal intelligence, the central assessment unit is not required to provide any grounds or reasons for the decision other than that it would be contrary to the public interest to allow the person to work with people with disability. (2) In any proceedings under this Part, the court determining the proceedings— (a) must, on the application of the Commissioner of Police, take steps to maintain the confidentiality of information classified by the Commissioner of Police as criminal intelligence, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of, or relating to, information that is so classified by the Commissioner of Police by way of affidavit. 18D—Protected information (1) The Registrar may, in accordance with any requirements set out in the regulations, classify specified information as protected information. (2) If the central assessment unit makes a decision under this Part on the basis of information that is classified by the Registrar as protected information, the central assessment unit is not required to provide any grounds or reasons for the decision other than that it would be contrary to the public interest to allow the person to work with people with disability. (3) In any proceedings under this Act, the court determining the proceedings— (a) must, on the application of the Registrar, take steps to maintain the confidentiality of information classified by the Registrar as protected information, including steps to receive evidence and hear argument about the information in private in the absence of the parties to the proceedings and their representatives; and (b) may take evidence consisting of, or relating to, information that is so classified by the Registrar by way of affidavit. 18E—Powers of delegation (1) The central assessment unit may delegate a function or power under this Part (other than a prescribed function or power) to the Registrar or a specified body or person (including a person for the time being holding or acting in a specified office or position). (2) The Registrar may delegate a function or power under this Part (other than a prescribed function or power) to a specified body or person (including a person for the time being holding or acting in a specified office or position). (3) A delegation under this section— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the ability of the central assessment unit or the Registrar (as the case requires) to act in any matter; and (d) is revocable at will. (4) A function or power delegated under this section may, if the instrument of delegation so provides, be further delegated. 18F—Pending applications to be disregarded For the purposes of this Part— (a) a person will be taken not to have been granted an NDIS worker check clearance merely because they have made an application for a clearance that has not yet been determined; and (b) nothing in this Part authorises an applicant for an NDIS worker check clearance that has not yet been determined to undertake NDIS work. Division 2—NDIS worker check clearances and exclusions 18G—Application for NDIS worker check clearance (1) A person may apply to the central assessment unit for a clearance in accordance with this section. (2) An applicant must— (a) reside, or intend to reside, in this State; or (b) undertake NDIS work, or intend to undertake NDIS work, in this State, and the central assessment unit may refuse to accept an application if the central assessment unit is not satisfied that the applicant satisfies the requirements under this subsection. (3) An application for a clearance must— (a) be made in a manner and form approved by the central assessment unit; and (b) be accompanied by any information required by the central assessment unit; and (c) include, or be accompanied by, proof of the identity of the applicant in a form approved by the central assessment unit; and (d) be accompanied by the prescribed fee. (4) The approved form of application for a clearance must provide for the authorisation by the applicant of— (a) the making of inquiries about the applicant by the central assessment unit for an NDIS purpose; and (b) the obtaining of relevant information about the applicant by the central assessment unit from any authorised person for an NDIS purpose; and (c) the disclosure of relevant information about the applicant by the central assessment unit to an authorised person for an authorised purpose. (5) The central assessment unit may require an applicant for a clearance to provide a recent photograph of the applicant, obtained in accordance with arrangements determined by the central assessment unit. (6) An applicant may withdraw an application at any time by notice in writing to the central assessment unit in the form approved by the central assessment unit, however the withdrawal only has effect if the central assessment unit consents to the withdrawal. (7) The central assessment unit must consent to a withdrawal of an application except in the following circumstances (and must refuse consent in those circumstances): (a) a clearance currently held by the applicant under this Part or a corresponding law is under suspension; (b) the applicant's most recent clearance was cancelled under this Part or a corresponding law (other than cancellation at the request of the holder); (c) the central assessment unit has notified or is proposing to notify the applicant that it proposes to issue an NDIS worker check exclusion to the applicant but has not yet determined the application; (d) the central assessment unit is of the opinion that there is a reasonable likelihood that a risk assessment of the applicant will determine that the applicant poses a risk of harm to people with disability. (8) The central assessment unit may give written notice of the withdrawal of an application to any person that the central assessment unit reasonably believes to be a notifiable person in relation to the applicant. (9) The regulations may make further provision in relation to applications (including, to avoid doubt, provisions setting out additional circumstances in which an application may be refused or terminated by the central assessment unit). 18H—Certain persons not permitted to apply for NDIS worker check clearance (1) A person cannot apply for a clearance if the person— (a) has made an application for a clearance under this Part or a corresponding law and that application is pending; or (b) currently holds a clearance under this Part or a corresponding law, unless the application is made no more than 3 months before the expiry of the current clearance; or (c) is otherwise subject to a ban on applying for a clearance under this section. (2) A person to whom an exclusion is issued under this Part or a corresponding law (being a person who is not a disqualified person) is banned from applying for a clearance for 5 years following the issue of the exclusion except where there has been a relevant change of circumstances. (3) A person who has had a clearance cancelled under this Part or a corresponding law is banned from applying for a clearance for 5 years following the cancellation except where— (a) the cancellation was at the request of the person; or (b) the cancellation occurs under section 18S(2) or 18W(2); or (c) there has been a relevant change of circumstances. (4) For the purposes of this section, each of the following is a relevant change of circumstances in relation to the issue of an exclusion or cancellation of a clearance: (a) proceedings for an offence on which the exclusion or cancellation was based are withdrawn or dealt with without a finding of guilt in respect of the person; (b) a finding of guilt for an offence on which the exclusion or cancellation was based is quashed or set aside; (c) a finding in respect of a risk assessment on which the exclusion or cancellation was based is quashed or set aside, or otherwise ceases to have effect; (d) any other change of circumstances that the central assessment unit considers should result in the person being permitted to make an application. 18I—Determination of application—grant of NDIS worker check clearance (1) Except where an NDIS worker check exclusion is issued under section 18J, or an application is refused under subsection (2), an application for a clearance made in accordance with this Part must be granted. (2) An application for a clearance may be refused if the central assessment unit is not satisfied that the applicant is, or will be, engaged to do NDIS work. (3) To avoid doubt, a refusal to grant a clearance under subsection (2) does not constitute an NDIS worker check exclusion. 18J—Determination of application—issue of NDIS worker check exclusion (1) The central assessment unit must issue an NDIS worker check exclusion to an applicant for a clearance if— (a) the applicant is a disqualified person; or (b) a risk assessment of the applicant is required and the risk assessment determines that the applicant poses a risk of harm to people with disability. (2) Subject to this Part, before issuing an exclusion to an applicant referred to in subsection (1)(b), the central assessment unit must notify the applicant in writing of the intention to issue the exclusion and notify the applicant that the applicant may make a submission to the central assessment unit within the period specified in the notice. (3) The central assessment unit must consider any submission made by an applicant within the specified period before finally deciding the application. 18K—Certain persons presumed to pose risk of harm to people with disability (1) The following provisions 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: (a) the person will be presumed to pose a risk of harm to people with disability; (b) the central assessment unit need not consider or assess any further information in relation to the application; (c) the central assessment unit must, for the purposes of section 18J, determine that the person poses a risk of harm to people with disability unless the person satisfies the central assessment unit that— (i) the circumstances of the presumptive disqualification offence committed, or alleged to have been committed, by the person are such that the offence should be disregarded in determining whether the person poses a risk of harm to people with disability; or (ii) such exceptional circumstances exist in relation to the person that the person does not appear, or no longer appears, to pose a risk of harm to people with disability. (2) Nothing in this section limits section 18H. 18L—Notice of grant of NDIS worker check clearance or issue of NDIS worker check exclusion (1) The grant of an NDIS worker check clearance, or the issue of an NDIS worker check exclusion, must be by notice in writing and must comply with any requirements set out in the regulations for the purposes of this subsection. (2) Subject to this Act, notice of a decision to issue an exclusion must set out the reasons for the decision and any right to seek a review of the decision under this Part. (3) The central assessment unit may give written notice of the issue of an exclusion to an applicant to any person that the central assessment unit reasonably believes to be a notifiable person in relation to the applicant. Division 3—Risk assessment 18M—Nature of risk assessment (1) A risk assessment of a person for the purposes of this Part is an assessment and determination by the central assessment unit as to whether the person poses a risk of harm to people with disability. (2) For the purposes of this Part, a reference to a risk of harm to people with disability is to be interpreted in accordance with the following principles: (a) the risk of harm must be a real and appreciable risk of harm; (b) the risk of harm does not need to be likely or significant; (c) the risk of harm need not arise from recent events. (3) In this section— harm includes— (a) any detrimental effect on a person's physical, psychological, emotional or financial wellbeing (personal harm); and (b) non-consensual or inappropriate conduct of a sexual nature with or towards a person (whether or not that conduct poses a risk of personal harm). 18N—Requirement for risk assessment (1) A risk assessment of an applicant for, or the holder of, a clearance is required in the following circumstances: (a) if the applicant or holder is a presumptively disqualified person; (b) in the circumstances prescribed by the regulations for the purposes of this paragraph; (c) in such other circumstances as the central assessment unit may determine. (2) A risk assessment of an applicant for a clearance is required at the time of application if there are circumstances at the time of application that require a risk assessment. (3) A risk assessment of the holder of a clearance is required if the central assessment unit becomes aware that there are circumstances that require a risk assessment. 18O—Matters to be considered in risk assessment The central assessment unit is to consider the following for the purposes of a risk assessment: (a) the nature, gravity and circumstances of any offence, misconduct or other event that resulted in, or contributed to, the requirement for a risk assessment in relation to the person (a relevant event), and how it is relevant to NDIS work; (b) the length of time that has passed since a relevant event occurred; (c) the vulnerability of any victim of a relevant event at the time of the event and the person's relationship to the victim or position of authority over the victim at the time of the event; (d) the person's criminal history, history of misconduct and other relevant history, including whether there is a pattern of concerning behaviour; (e) the person's conduct since a relevant event; (f) all other circumstances in respect of the person's criminal offending, misconduct and other relevant history and their impact on eligibility to be engaged in NDIS work; (g) such other matters as the central assessment unit considers appropriate. Division 4—Duration and termination of NDIS worker check clearances and exclusions 18P—Duration of NDIS worker check clearance (1) A clearance remains in force (unless sooner cancelled) for a period of 5 years starting from whichever of the following start dates is applicable in the circumstances: (a) if the applicant is not the holder of a clearance under this Part or a corresponding law when the application for the clearance is granted, the start date is the date on which the application for the clearance is granted; (b) if the application is granted while the applicant is the holder of a clearance under this Part or a corresponding law, the start date is the date on which the existing clearance expires. (2) However, the central assessment unit may extend the period for which a clearance remains in force for a period of up to 6 months after the clearance would otherwise have expired if the holder of the clearance has made a valid application for a clearance under this Part or a corresponding law before the clearance expired and that application has not yet been determined. (3) If the period for which a clearance remains in force is extended under subsection (2), the clearance will be taken to have remained in force from the original expiry date until the extension takes effect. (4) Despite a provision of this or any other Act, the following arrangements apply for the purpose of facilitating alignment of the periods for which a clearance granted to a person under this Part and a working with children check conducted under the Child Safety (Prohibited Persons) Act 2016 are in force: (a) a clearance may, at the discretion of the central assessment unit and with the agreement of the applicant, be granted so as to be in force for a period of less than 5 years; (b) the period for which a clearance is in force may be shortened after the clearance is granted at the discretion of the central assessment unit and on the application of the holder of the clearance; (c) the holder of a clearance may, with the approval of the central assessment unit, apply for a new clearance earlier than 3 months before the expiry of the clearance; (d) the central assessment unit may approve a reduction in the fee payable, or a refund of part of any fee paid, to reflect any reduction in the period for which a clearance is or is to be in force. 18Q—Duration of NDIS worker check exclusion (1) An exclusion issued to a disqualified person remains in force indefinitely. (2) An exclusion issued to person other than a disqualified person remains in force (unless sooner cancelled) for a period of 5 years starting from the issue of the exclusion. 18R—Suspension of NDIS worker check clearance (1) The central assessment unit may, by written notice to the holder of a clearance, suspend the clearance if 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 people with disability. (2) The central assessment unit may give written notice of the suspension of a clearance to any person that the central assessment unit reasonably believes to be a notifiable person in relation to the holder of the clearance. (3) The suspension of a clearance ceases to have effect— (a) on notification in writing by the central assessment unit to the holder that the suspension is revoked; or (b) if the clearance is cancelled, whichever occurs first. 18S—Cancellation of NDIS worker check clearance (1) The central assessment unit must cancel the clearance of a person if the central assessment unit becomes aware that the person is a disqualified person, or a risk assessment determines that the person poses a risk of harm to people with disability. Note— See also section 18K. (2) Without limiting subsection (1) or section 18W, the central assessment unit may cancel a clearance for any of the following reasons: (a) the central assessment unit is not satisfied that the person is or will be engaged to do NDIS work; (b) the clearance was granted pursuant to an application that was not valid; (c) the clearance was granted because of a mistake and should not have been granted. (3) If the central assessment unit proposes to cancel a clearance other than because the person is a disqualified person, the central assessment unit must notify the person in writing of the proposed cancellation and that the person may make a submission to the central assessment unit within the period specified in the notice. (4) The central assessment unit must consider any submission made by the person within the specified period before finally deciding whether to cancel the clearance. (5) The central assessment unit must notify the holder of a clearance in writing of the central assessment unit's decision to cancel the clearance. (6) Subject to this Part, notice of the decision must set out the reasons for the cancellation and any right to seek a review of the decision under this Part. (7) The central assessment unit may give written notice of the cancellation of a clearance to any person that the central assessment unit reasonably believes to be a notifiable person in relation to the holder of the clearance. 18T—Cancellation of NDIS worker check clearance at request of holder (1) The holder of a clearance may at any time request cancellation of the clearance by notice in writing to the central assessment unit in the form approved by the central assessment unit. (2) The central assessment unit must, as soon as practicable after receiving the request, cancel the clearance except in the following circumstances (and must refuse to cancel the clearance in those circumstances): (a) the clearance, or a clearance held by a person under a corresponding law, is suspended; (b) the central assessment unit is undertaking or is proposing to undertake a risk assessment of the holder. (3) The central assessment unit may give written notice of the cancellation of a clearance under this section to any person that the central assessment unit reasonably believes to be a notifiable person in relation to the holder of the clearance. Division 5—Information gathering and sharing Subdivision 1—Information gathering 18U—Court to provide notice of certain findings of guilt to central assessment unit A court that finds a person guilty of a disqualification offence or presumptive disqualification offence must ensure that the prescribed information relating to the finding of guilt is provided, in accordance with the regulations, to the central assessment unit. 18V—Commissioner of Police to provide information to central assessment unit on charging of certain persons Without limiting any other Act or law that requires or authorises the Commissioner of Police to disclose information, the Commissioner of Police must ensure that, if a police officer lays a charge of a disqualification offence or presumptive disqualification offence against a person, the prescribed information relating to the charge is provided to the central assessment unit as soon as is reasonably practicable after the person is charged. 18W—Power to require information from applicant or clearance holder (1) The central assessment unit may, by notice in writing to an applicant for a clearance or the holder of a clearance, request the applicant or holder to provide relevant information about the person for an NDIS purpose. (2) The central assessment unit may terminate an application for a clearance or cancel a clearance if the applicant or holder fails, without reasonable excuse, to provide requested information within the period required for compliance with the request (unless the central assessment unit has withdrawn the request). (3) The period required for compliance with a request for information is the period of not less than 7 days specified by the central assessment unit in the request (however the central assessment unit may extend and further extend the period required for compliance with the request). (4) The central assessment unit must, as soon as practicable after terminating an application or cancelling a clearance under this section, give written notice of the termination or cancellation to the applicant or holder of the clearance. (5) The central assessment unit may give written notice of the termination of an application or cancellation of a clearance under this section to any person that the central assessment unit reasonably believes to be a notifiable person in relation to the applicant or holder. 18X—Power to require information from other persons (1) The central assessment unit may, by notice in writing, for the purposes of— (a) determining an application for a clearance or a risk assessment of an applicant or the holder of a clearance; or (b) a review of a decision in accordance with this Part, require a specified person to provide to the central assessment unit within a specified period such informatio