From 1 February 2021, all states and territories (except the Northern Territory, who will commence on 1 July 2021) started implementing a new national screening process for National Disability Insurance Scheme (NDIS) workers. Each state and territory will be operating the NDIS screening process under their own legislation and scheme.

In some states and territories, the legislation implementing the NDIS worker screening also amends the framework for working with children checks, or combines the two. This article outlines some of the changes to working with children checks as a result of NDIS worker screening in different jurisdictions.

Australian Capital Territory

From 1 February 2021, any person who is working or volunteering in an NDIS activity must be registered under the existing Working with Vulnerable People (WWVP scheme) pursuant to amendments to the Working with Vulnerable People (Background Checking) Act 2011 (ACT) (WWVP Act). Relevant amendments to the WWVP Act include:

• the introduction of Class A and Class B disqualifying offences (for those working or volunteering with children and in an NDIS activity). Class A offences include murder, culpable driving causing death, and sexual offences against vulnerable people, and result in an automatic exclusion from WWVP registration. Examples of Class B offences include child neglect, drug, fraud and theft offences and will result in a risk assessment of the applicant being carried out before WWVP registration.
• the conduct of all WWVP registration holders will be monitored to make sure that they remain suitable to keep a registration. Registration holders found to have engaged in certain behaviour that poses an unacceptable risk to vulnerable people may have their registration restricted or cancelled
• all new WWVP registrations will be issued for up to five years.

More information is available on the Access Canberra website.

Queensland

From 1 February 2021, a new worker screening process commenced in Queensland for workers who provide supports and services to people with disability. It replaces the existing ‘yellow card’ and ‘yellow card exemption’ screening. People working with children with disability may require a NDIS worker screening clearance/state disability worker screening clearance and a blue/exemption card. More information on which type of screening your employees who work with children with disability may require can be found on the Queensland Government website.

Other relevant amendments to the Working with Children (Risk Management and Screening) Act 2000 (Qld) include:

• it will continue to be a penalty for an employer to employ a worker in “regulated employment” if they do not hold a working with children clearance. It is now an aggravating circumstance if a person employs a worker in regulated employment when that worker holds a disability exclusion or interstate NDIS exclusion and the employer knows, or ought reasonably to know, about that exclusion
• it is still an offence for a registered teacher to start or continue in regulated employment (other than as a teacher) unless they hold a working with children authority or they have made a working with children check (exemption) application, which has not been decided or withdrawn. It is now an aggravating circumstance if the registered teacher holds a disability exclusion or interstate NDIS exclusion
• if applicable, a person who makes a combined application for a NDIS worker screening and Blue Card or an Exemption Card may be issued both for a period of up to five years (the term of a NDIS clearance) rather than three years (the usual term of a Blue Card/Exemption Card).
  
  

Tasmania

On 1 February 2021, various legislation was amended or introduced in Tasmania to accommodate NDIS worker screening, and to make changes to Registration to Work with Vulnerable People (RWVP):

This included amending legislation which affected:

• Registration to Work with Vulnerable People Act 2013 (Tas) (RWVP Act)
• Registration to Work with Vulnerable People Regulations 2014 (Tas) (the Regulations)
• Registration to Work with Vulnerable People (Risk Assessment for Child-related Activities) Order 2014 (Tas),

together with the introduction of:

• Registration to Work with Vulnerable People (NDIS Disqualifying Offences) Order 2020 (Tas)
• Registration to Work with Vulnerable People (Risk Assessment for NDIS Endorsed Activities) Order 2020 (Tas).

Changes to the RWVP relevant to schools include:

• a new section 4A of the RWVP Act that sets out five categories of RWVP. The categories that are relevant to the school context are:
  • child-related activity
  • child and vulnerable adult-related activity
  • child and vulnerable adult-related (NDIS endorsed) activity

• the term of registration is now five years (previously three years)

• the exemptions in relation to who must be registered to work with vulnerable people in section 15 of the RWVP Act and the Regulations have been amended

• a new obligation on an applicant for a RWVP under section 24A of the RWVP Act to notify the Registrar of any change relating to their name, address or employer within 10 working days after the change occurs. Failure to do so is an offence, with a penalty of a fine

• a new obligation on a school (as an employer) under section 48A of the RWVP Act to notify the Registrar within 10 working days, after an employee or volunteer commences or ceases to be engaged in a regulated activity for the school. Failure to do so is an offence with a penalty of a fine.

Victoria

On 1 February 2021, the Worker Screening Act 2020 (Vic) (WS Act) replaced the Working with Children Act 2005 (Vic). The WS Act creates a combined screening framework for both NDIS workers and people who work with children.

Some changes include:

• under the Working with Children Act, a negative outcome of a WWC (working with children) check was called a “negative notice”. Under the WS Act, a negative outcome is now called a “WWC exclusion”
• slight amendments to the circumstances in which an applicant cannot participate in child-related work while their application is being processed. For example, an applicant who is excluded from child-related work under a corresponding working with children law, in circumstances where they have been charged with, found guilty of or convicted of certain sexual, violent or drug offences, cannot participate in child-related work while their application is being processed
• amendments to the circumstances in which an applicant, who has been issued with a WWC exclusion, may reapply for a WWC check. A person can reapply for a WWC check if they:
  • are no longer subject to a supervision order, a detention order or an emergency detention order; or
  • are no longer excluded from child-related work under a corresponding working with children law; or
  • have had their NDIS exclusion deemed void or set aside, rendered inoperative or otherwise invalidated
• workers with a WWC clearance must notify Working with Children Check Victoria if they have been given an NDIS exclusion, or if they have been excluded from child-related work under a corresponding working with children law.

Transitional arrangements apply from 1 February 2021 for existing holders of a WWC Check who may require a NDIS worker screening. Further information may also become available on the Working with Children Victoria website.

New South Wales, South Australia and Western Australia

These jurisdictions do not appear to have introduced NDIS legislation that directly or significantly affects the current operation of working with children checks. Transitional arrangements may apply where a working with children check will be recognised for NDIS work until expiry.

What Should Schools Do?

Members of your school’s governing body should familiarise themselves with any changes to the working with children check scheme in your jurisdiction, and keep an eye out for any updates or further information from the relevant administrators of the scheme in their school’s jurisdiction.

Please note that the law in this area is very new and there may be changes in the coming months in some or all of the jurisdictions. Schools may also wish to seek external advice on whether NDIS or disability worker screening applies to their employees who with work with children with disability.

Authors

Deborah de Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

Karen Zeev

Karen recently completed three years working at the NSW Ombudsman and the Office of the Children’s Guardian as a Senior Investigator in employment related child protection. Karen also spent three years at the Royal Commission into Institutional Responses to Child Sexual Abuse as a Senior Legal and Policy Officer and was a key contributor to the “Redress and Civil Litigation” and “Criminal Justice” reports. Karen has worked as a commercial litigation lawyer both in the private and public sector and holds a bachelor’s degree in Arts/Law (Hons).