House of Representatives

Explanatory Memorandum

(Circulated by the authority of the Minister for Social Services, the Hon Dan Tehan MP)

Statement of Compatibility with Human Rights

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018

This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011.

Overview of this Bill

The Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018 (the Bill) creates an exception to the provisions that would prevent the disclosure of spent, quashed and pardoned convictions for persons who work or seek to work with people with disability in the NDIS. The Bill aims to uphold the human rights of people with disability by helping protect them from experiencing harm from the people working closely with them.

The protection of people with disability from violence, abuse and neglect is a key priority for all Australian governments. In December 2016, the Council of Australian Governments (COAG) agreed to the NDIS Quality and Safeguarding Framework (the Framework), following three years of consultation with key stakeholders, including people with disability, their families and carers and providers as well as peak bodies. Nationally consistent NDIS worker screening is a key element of the Framework that will minimise the risk of harm to people with disability from the people who work closely with them.

The Bill is an important step towards implementing the COAG commitment to nationally consistent NDIS worker screening and giving effect to the Commonwealth Government's regulatory responsibilities under the Framework.

This Bill enables the use and disclosure of spent, quashed and pardoned convictions information with State and Territory worker screening units for the purposes of NDIS worker screening. It is well-documented that reports of abuse and neglect perpetrated against people with disability may not be pursued for a variety of reasons. This includes difficulties experienced in securing a conviction where the victim is a person with disability, and the challenges faced by people with disability who are victims of crime. Including this kind of additional information can provide a better indication of risk than criminal convictions alone and will assist worker screening units make a more accurate and informed assessment of the risk that a person may pose to people with disability in the NDIS.

Similar legislation enabling the sharing of such information for the purposes of working with children checks has been in place since 2010.

Human rights implications

The Bill engages the following rights under international human rights law:

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the rights of people with disabilities, especially Article 16 of the Convention on the Rights of Persons with Disabilities (CRPD)

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the right to work in Article 6 of the International Covenant on Economic, Social and Cultural Rights (ICESCR)

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the right to a presumption of innocence in Article 14(2) of the International Covenant on Civil and Political Rights (ICCPR)

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the right to privacy in Article 17 of the ICCPR.

Rights of people with disability - Article 16 of the CRPD

The Bill promotes the rights of persons with disability consistent with Australia's obligations, by ensuring that the supports and services provided through the NDIS are delivered by a suitable workforce.

A nationally consistent approach to worker screening is an important element of the design of the NDIS and the Framework that minimises the risk of harm to people with disability from the people who work closely with them. While the primary responsibility for recruiting and providing a safe environment for people with disability rests with employers (including sole traders and self-employed), a worker screening outcome is one source of information that can support employers in fulfilling this responsibility.

A nationally consistent and recognised worker screening regime promotes the rights of people with disability by:

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sending a strong signal to the community as a whole about the priority placed on the rights of people with disability to be safe and protected

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reducing the potential for providers to employ workers who pose a high risk of harm to people with disability

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prohibiting those persons, that pose a high risk or are proven to have harmed vulnerable people, from working in the sector

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deterring individuals who pose a high risk of harm from seeking work in the sector.

Right to work - Article 6 of the ICESCR

Article 6 of the ICESCR recognises the right to work and 'includes the right of everyone to the opportunity to gain his living by work which he freely chooses or accepts'. This right also applies to workers who work with people with disability, including NDIS participants.

The paramount objective of this Bill is to protect people with disability from experiencing harm arising from unsafe supports or services under the NDIS.

Consistent with this objective, a person engaged by a registered NDIS provider to deliver NDIS supports or services that entails more than incidental contact with a person with disability, or in a key executive, management and operational position, such as a Chief Executive Officer, Chairman or Board Member, will be required to obtain an NDIS Worker Screening Check. A registered NDIS provider will be required to ensure that its workers have undergone the necessary screening processes as part of their registration requirements.

This recognises that some NDIS participants are amongst the most vulnerable people in the community and that people with disability have the right to be protected from exploitation, violence and abuse.

At the same time, governments recognise that some individuals have valuable lived experiences to share with people with disability accessing supports and services. Offenders can make significant changes in their lives, and it is critical that NDIS worker screening does not unreasonably exclude offenders from working in the disability sector.

The State and Territory-operated worker screening units will be required to have appropriately skilled staff to assess risks to people with disability, to comply with the principles of natural justice, and to comply with a nationally consistent risk assessment and decision-making framework, including considerations of the circumstances surrounding any offence. The Bill provides the means to gain the necessary information to assess such circumstances.

In this way, the Bill enables informed risk-based worker screening that balances the rights of people with disability with the right to work. It supports a proportionate approach to safeguards that does not unduly prevent a person from choosing to work in the NDIS market, but ensures the risk of harm to people with disability is minimised, by excluding workers whose behavioural history indicates they pose a risk from certain services and supports.

Presumption of innocence - Article 14(2) of the ICCPR

Article 14(2) of the ICCPR provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty. The Bill allows an NDIS worker screening unit to consider pardoned, quashed or spent convictions in determining whether an individual poses a risk to people with disability, and does not override the presumption of innocence.

Right to privacy- Article 17 of the ICCPR

Article 17 of the ICCPR provides that no one shall be subjected to arbitrary or unlawful interference with their privacy. Privacy guarantees a right to secrecy from the public of personal information. For interference with privacy not to be arbitrary, it must be in accordance with the provisions, aims and objectives of the ICCPR and should be reasonable in the particular circumstances. Reasonableness in this context incorporates notions of proportionality to the end sought and necessity in the circumstances.

The Bill provides access to a worker's detailed criminal history information to state-based worker screening units to enable a thorough risk-based worker screening assessment proportionate to determining the potential risk of harm to people with disability receiving services under the NDIS. Further, the permission to access such information will be obtained from a worker applying for a worker screening check as a part of the application process.

Such access is considered reasonable to protect people with disability and is not considered to contravene a worker's right to privacy.

Conclusion

The Crimes Amendment (National Disability Insurance Scheme - Worker Screening) Bill 2018 advances the protection of the rights of people with disability in Australia consistent with the CRPD, particularly in relation to preventing exploitation, violence and abuse in the disability sector.

The Bill also supports the right to work by ensuring information is available for worker screening units to undertake a thorough risk assessment including the circumstances surrounding any relevant aspects of a workers criminal history.

To the extent the Bill impinges on the human rights of workers, the impositions are reasonable, necessary and proportionate to achieving the protection of people with disability and confidence in the safety of the NDIS market, thereby ensuring the long-term integrity and sustainability of the NDIS.