WA National Disability Insurance Scheme (Worker Screening) Act 2020

Thursday 10 December 2020 @ 1.39 p.m. | Industrial Law | Legal Research

The National Disability Insurance Scheme (Worker Screening) Bill 2020 (WA) (the “Bill”) was introduced into the WA Legislative Assembly (“Assembly”) on 12 August 2020, by Mr Whitby, the Parliamentary Secretary. The Bill was assented to 9 December 2020 as Act 48 of 2020, the National Disability Insurance Scheme (Worker Screening) Act 2020 (WA).

As a result of the main objective to screen workers in connection with the operation of the National Disability Insurance Scheme, certain other Acts require consequential amendments. The Act will consequentially amend the:

Spent Convictions Act 1988; and
Working with Children (Criminal Record Checking) Act 2004.

Outline of the Act

As outlined in the Bill’s Explanatory Memorandum (“EM”), the object of the Act is “to provide for the screening of workers in connection with the operation of the National Disability Insurance Scheme (NDIS)”.

The intention of the Act is to “introduce a high standard of screening for persons who engage in NDIS work. Ensuring, as far as is possible, that those working with people with disability are safe to do so requires a range of strategies. Worker screening is an important component of these strategies”.

The Consequential Amendments

The consequential amendments are as follows:

Spent Convictions Act 1988 – is amended by amending s 28 and Schedule 3; and
Working with Children (Criminal Record 19 Checking) Act 2004 - is amended by amending s 4 and inserting new sections 37A and 39A to the Act.

The Hon Stephen Dawson (Minister for Environment; Disability Services; Electoral Affairs) said of the Bill:

“The bill implements Western Australia’s obligations under the Intergovernmental Agreement on Nationally Consistent Worker Screening for the National Disability Insurance Scheme, which sets out the national policy for NDIS worker screening”.

The Committee Report

In October 2020, the Standing Committee on Uniform Legislation and Statutes Review handed down a Report on the Bill. The Executive Summary noted the Report made 13 findings and three recommendations.

Some of the findings included:

Clauses 6(1)(a) and 6(2)(a) of the National Disability Insurance Scheme (Worker Screening) Bill 2020 erode the Western Australian Parliament’s sovereignty and law-making powers (Finding 3);
Clause 82(3) of the National Disability Insurance Scheme (Worker Screening) Bill 2020 is justified in order to effect a smooth transition to the new regulatory scheme and acceptable by reason of its focused operation (Finding 13).

What is an NDIS Check?

According to the WA Government, an NDIS Check is a “national tool that can help NDIS providers determine that individuals seeking to work (or already working) in certain NDIS roles do not present an unacceptable risk of harm to people with disability”. The check is one of the ways to help protect and prevent people with disability from experiencing the possible harm that could arise from them receiving poor quality or unsafe supports or services under the NDIS.

The NDIS Check and clearance will be mandatory if a person is to be engaged in a “risk assessed role” for a registered NDIS provider. A risk assessed role may include:

key personnel (such as management and operational positions);
a role for which the normal duties include the direct delivery of specified supports or specified services to a person with disability;
a role for which the normal duties are likely to require “more than incidental contact” with people with disability.

Comment on the Bill

In his speech, Minister Dawson commented:

“The National Disability Insurance Scheme (Worker Screening) Bill 2020 provides for the screening and ongoing monitoring, by reference to national criminal records and other relevant information, of certain disability workers in Western Australia. The objective of nationally consistent NDIS worker screening and this bill is to protect and prevent people with disability from experiencing harm from poor quality or unsafe supports or services delivered under the NDIS, by deterring certain individuals from seeking work in the sector, excluding certain people from working for registered NDIS providers in certain roles, and reducing the potential for NDIS providers to employ certain workers, if those workers pose an unacceptable risk of harm to people with disability.”

In a Media Statement, the Minister said further:

“The screening process will assess whether a person who works or seeks to work with people with disability poses a risk to them, and will determine whether they are cleared or excluded from working in certain roles. Once the NDIS worker screening commences, all new workers will be required to take the check and existing workers will phase-in over time. Transitional arrangements will be in place between December 1, 2020 to February 1, 2021 to ensure workers have an acceptable check in place until the NDIS worker screening check commences.”

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