House of Representatives

Explanatory Memorandum

(Circulated by authority of the Minister for Aged Care and Sport, the Hon. Anika Wells MP)

SCHEDULE 1 - CONSEQUENTIAL AMENDMENTS

Schedule 1 amends the following Acts:

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Crimes Act

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FOI Act

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NDIS Act

Crimes Act 1914

This Part protects individuals accessing funded aged care services from harm by permitting criminal history information to be disclosed and taken into account in assessing whether a person who works, or seeks to work, with an individual accessing funded aged care services poses a risk to that individual.

Clause 1 inserts new Subdivision AB to Division 6 of Part VIIC of the Crimes Act. New clause 85ZZGO sets out the object of the subdivision which relates to exclusions to Divisions 2 and 3 for the purpose of work with individuals accessing funded aged care services from harm, as outlined above.

New clauses 85ZZGP, 85ZZGQ and 85ZZGR provide prescribed persons and bodies with exemptions to Divisions 2 and 3 of Part VIIC of the Crimes Act, which would otherwise prevent the disclosure and consideration of pardons for persons wrongly convicted, quashed convictions and spent convictions.

These provisions will allow agencies such as the Australian Criminal Intelligence Commission and the Australian Federal Police to disclose this criminal history information to a prescribed person or body that is required, or permitted by or under a prescribed Commonwealth, State or Territory law to obtain and deal with information about persons who work, or seek to work, with individual accessing funded aged care services.

Each State and Territory has established a Worker Screening Unit that is prescribed to undertake employment screening in relation to work with a person with disability. It is proposed that the same Worker Screening Unit will be prescribed to obtain and deal with information about persons who work, or seek to work, with individuals accessing funded aged care services. This will support regulatory alignment across both sectors and reduce the ability for a person who has been found to pose a risk of harm to then seek employment in the other sector.

New clause 85ZZGS provides that, before the Governor-General makes a regulation prescribing a person or body for the purposes of new clauses 85ZZGP, 85ZZGQ and 85ZZGR the Minister must be satisfied that the person or body:

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is required or permitted by or under a Commonwealth law, a State law or a Territory law to obtain and deal with information about persons who work, or seek to work, with an individual accessing funded aged care services; and

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complies with applicable Commonwealth law, State law or Territory law relating to privacy, human rights and records management; and

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complies with the principles of natural justice; and

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has risk assessment frameworks and appropriately skilled staff to assess risks to the safety of an individual accessing funded aged care services.

The Minister responsible for this purpose will be the Attorney-General.

This proposed amendment aligns with equivalent existing provisions in subdivisions A and AA of Division 6 of Part VIIC of the Crimes Act that provide similar exemptions to Divisions 2 and 3 for the purposes of assessing persons who work, or seek to work, with children and persons with disability. The proposed amendment recognises that aged care workers are in a position of trust and supports harmonisation of the approach to criminal history disclosures across the care sector.

Freedom of Information Act 1982

In response to Royal Commission recommendation 88, clause 2 omits references to the old Act and the Commission Act in Schedule 3 to the FOI Act. This ensures that the exemption in section 38 of the FOI Act, which prevents the public disclosure of documents covered by secrecy provisions, will no longer apply to the old Act and the Commission Act. Existing provisions within the FOI Act will continue to provide protection to personal information and business affairs.

National Disability Insurance Scheme Act 2013

The following clauses are to be read in conjunction with Part 9 of Schedule 2 to the Transitional Bill as they operate together to give effect to these provisions.

Clause 3

Clause 3 amends section 9 of the NDIS Act to insert definitions for aged care clearance decision, aged care exclusion decision, aged care worker screening check, aged care worker screening law, funded aged care service and registered aged care provider, which are all defined to have the same meaning as in the new Act.

Clauses 4, 5, 6

Clauses 4, 5 and 6 amend subparagraph 67A(1)(da)(i), subparagraph 67A(1)(da)(ii), and paragraph 67A(1)(da) of the NDIS Act to provide for a person to make a record of protected NDIS Quality and Safeguards Commission information, disclose such information to any person or otherwise use such information if:

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the disclosure is to a State or Territory, or to an authority of a State or Territory, for the purposes of:

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carrying out of an aged care worker screening check;

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any other purpose of an aged care worker screening law; or

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the disclosure or use of the information by the person to a person or body, for the purposes of complying with the worker screening requirements prescribed by rules made under the new Act.

Clause 7

Clause 7 amends paragraph 181Y(3)(c) of the NDIS Act to provide for additional purposes for the NDIS worker screening database to share information in the database with:

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persons or bodies (including employers and potential employers) for the purposes of the NDIS; or

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the Commissioner of the Aged Care Quality and Safety Commission for the purposes of assisting them to perform their functions or exercise their powers; or

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registered aged care providers that are employers or potential employers of persons; or

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persons or bodies for the purposes of those persons or bodies facilitating the employment, engagement or training of other persons to work with individuals accessing funded aged care services.

This provision is intended to ensure information sharing arrangements in relation to NDIS workers who may also work, or seek to work, with individuals accessing funded aged care services. This will create regulatory alignment on worker screening for the NDIS and aged care sectors. This is also particularly important for protecting NDIS participants in circumstances where an aged care worker is found to pose a risk of harm and has been issued an aged care exclusion decision. This regulatory alignment aims to minimise the risk of harm to both NDIS participants and individuals accessing funded aged care services.

Clause 8

Clause 8 inserts new subsection 181Y(6A) into the NDIS Act and provides that the NDIS worker screening database may also include:

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information relating to persons (each of whom is a screening applicant) who:

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have made applications (each of which is a screening application) for an aged care worker screening check; and

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are identified (in screening applications or otherwise) as seeking to work with people with disability and information relating to those applications

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information relating to each screening applicant in respect of whom a screening application is no longer being considered and the reasons for this;

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information relating to each screening applicant in respect of whom a decision (a clearance decision) (however described) is in force, under an aged care worker screening law, to the effect that the person, in working, or seeking to work, with individuals accessing funded aged care services does not pose a risk to such individuals and information relating to the decision;

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information relating to any decisions made under an aged care worker screening law, in relation to each screening applicant, while the screening applicant's application is pending;

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information relating to each screening applicant in respect of whom a decision (an exclusion decision) (however described) is in force, under an aged care worker screening law, to the effect that the person, in working, or seeking to work, with individuals accessing funded aged care services does pose a risk to such individuals and information relating to the decision;

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if a clearance decision or an exclusion decision specifies the period for which the decision is in force - information setting out that period;

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information relating to each person in respect of whom a decision (however described), under an aged care worker screening law, suspending a clearance decision has been made and information relating to the suspension;

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information relating to each person in respect of whom a decision (however described), under an aged care worker screening law, revoking a clearance decision or an exclusion decision has been made and information relating to the revocation;

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information relating to employees or potential employers of persons who have made screening applications.

This provision expands the functions of the NDIS worker screening database to support information sharing arrangements for providers and workers that operate in both the NDIS and aged care sectors. This supports regulatory alignment by reducing administrative requirements on worker screening for providers and workers that operate in both the NDIS and aged care sectors.

Clause 9

Clause 9 provides for the insertion of paragraphs 6A(a) to (i) after paragraph 181Y(7), to allow for the sharing of information which includes personal information.

Examples of personal information which may be contained in the database include information relating to the identity of persons who have made an application or had a decision about them made under an aged care worker screening law. This may include: name, date of birth, age, place of birth, address, telephone number and email address.

This information is intended to promote the accuracy, integrity and effectiveness of the database by ensuring that the information about decisions made under an aged care worker screening law relate to the correct person.

Clause 10

Clause 10 inserts new sections 181Z and 181ZA to provide that:

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an aged care clearance decision in respect of a person working or seeking to work with individuals accessing funded aged care services is to be taken to be an NDIS clearance decision in respect of a person in working or seeking to work with people with disability; and

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an aged care exclusion decision in respect of a person working or seeking to work with individuals accessing funded aged care services is to be taken to be an NDIS exclusion decision in respect of a person in working or seeking to work with people with disability.

This provision provides for the recognition of an aged care clearance decision or aged care exclusion decision for the purposes of an NDIS clearance decision or an NDIS exclusion decision. An aged care clearance decision which is in force, under an aged care worker screening law, in respect to a person working, or seeking to work with NDIS participants is taken to be a clearance decision in force under an NDIS worker screening law. Similarly, an aged care exclusion decision which is in force, under an aged care worker screening law, in respect to a person working, or seeking to work with NDIS participants is taken to be an exclusion decision in force under an NDIS worker screening law. This will enable aged care workers who received an aged care clearance decision following an aged care worker screening check to work in risk-assessed roles within the NDIS sector without the need to undertake additional screening.