Registration to Work with Vulnerable People (Risk Assessment for NDIS Endorsed Activities) Order 2020

Registration to Work with Vulnerable People (Risk Assessment for NDIS Endorsed Activities) Order 2020

I make the following order under section 26 of the Registration to Work with Vulnerable People Act 2013 .

ELISE ARCHER

Minister for Justice

1.   Short title

This order may be cited as the Registration to Work with Vulnerable People (Risk Assessment for NDIS Endorsed Activities) Order 2020 .

2.   Commencement

This order takes effect on the day on which the last uncommenced provision of the Registration to Work with Vulnerable People Amendment Act 2019 commences.

3.   Interpretation

(1)  In this order –

applicant means a person who has applied for registration under the Act in the category of registration that is child and vulnerable adult-related (NDIS endorsed) activity;

NDIS means the National Disability Insurance Scheme, established by the National Disability Insurance Scheme Act 2013 of the Commonwealth;

NDIS-registered person means a person who is registered under the Act in the category of registration that is child and vulnerable adult-related (NDIS endorsed) activity;

NDIS-relevant offence means –

(a) a relevant offence within the meaning of the Act; and

(b) a presumed exclusion offence; and

(c) an offence specified in Part 3 of Schedule 1 or a substantially similar offence under a corresponding law;

presumed exclusion offence means an offence specified in Part 2 of Schedule 1 or a substantially similar offence under a corresponding law.

(2)  Unless the contrary intention appears, an expression that is used in this order and the National Disability Insurance Scheme (Provider Registration and Practice Standards) Rules 2018 or the National Disability Insurance Scheme (Practice Standards - Worker Screening) Rules 2018 of the Commonwealth has, in this order, the same meaning respectively as in those rules.

(3)  The Acts Interpretation Act 1931 applies to the interpretation of this order as if this order were by-laws.

4.   Application of order

This order applies in respect of –

(a) the performance of a risk assessment of an applicant; and

(b) the performance of an additional risk assessment of an NDIS-registered person.

5.   Matters to be taken into account when conducting risk assessment

(1)  When conducting a risk assessment, or additional risk assessment, of an applicant or NDIS-registered person, respectively, the Registrar may take into account the following matters:

(a) a matter specified in clause 5 of the Registration to Work with Vulnerable People (Risk Assessment for Child-related Activities) Order 2014 ;

(b) a matter specified in any risk assessment manual prepared for the purposes of worker screening under the NDIS, published by the Commonwealth, as amended from time to time;

(c) whether the applicant or NDIS-registered person has been charged with, or convicted of, an NDIS-relevant offence.

(2)  When conducting an additional risk assessment of an NDIS-registered person, the Registrar may also take into account the matters specified in section 28(1A) of the Act.

(3)  The matters referred to in subclauses (1) and (2) are to be taken into account in conducting a risk assessment, or an additional risk assessment, by considering the nature of the behaviour, or alleged behaviour, of the applicant, or NDIS-registered person, that is relevant to the matters referred to in these subclauses.

6.   Conduct of risk assessments and additional risk assessments

(1)  In this clause –

matter, in relation to a risk assessment, or an additional risk assessment, means a matter, referred to in clause 5(1) , taken into account by the Registrar in conducting the risk assessment or additional risk assessment.

(2)  If the Registrar considers it relevant to do so in relation to a matter that he or she is taking into account in conducting a risk assessment, or an additional risk assessment, the Registrar may consider –

(a) the nature, gravity and circumstances of an offence, misconduct, disciplinary proceeding or other relevant information relating to the matter, and how this is relevant to child and vulnerable adult-related (NDIS endorsed) activity; and

(b) the length of time that has passed since the matter occurred; and

(c) the vulnerability of the victim at the time of the matter occurring, including –

(i) the age of the victim; and

(ii) the age difference between the applicant, or NDIS-registered person, and the victim; and

(iii) the applicant’s, or NDIS-registered person’s, relationship to the victim or position of authority over the victim at the time of the matter occurring; and

(d) the applicant’s, or NDIS-registered person’s, criminal, misconduct, disciplinary or other relevant history, including whether there is a pattern of concerning conduct; and

(e) the applicant’s, or NDIS-registered person’s, conduct since the matter occurred; and

(f) all other relevant circumstances in respect of the offending, misconduct or other relevant history of the applicant, or NDIS-registered person, and the impact on the eligibility of the applicant, or NDIS-registered person, to be engaged in child and vulnerable adult-related (NDIS endorsed) activity.

7.   Conduct not to be taken into account

The Registrar must not take into account any conduct by the applicant that constituted an offence at the time when the conduct occurred but would not have constituted an offence at the time when the application for registration under the Act was made.

8.   Making of submissions to Registrar

(1)  At any time before the Registrar completes a risk assessment in respect of an applicant or NDIS-registered person, the applicant or NDIS-registered person may provide information to the Registrar that the applicant or NDIS-registered person believes may be relevant to the risk assessment.

(2)  The Registrar may take any information provided under subclause (1) into account when conducting a risk assessment.

9.   Issue of negative notice

(1)  If an applicant or NDIS-registered person –

(a) has been convicted, as an adult, of a presumed exclusion offence; or

(b) has charges pending for a presumed exclusion offence or a disqualifying offence –

the Registrar must issue a negative notice to the applicant or NDIS-registered person, unless the Registrar is satisfied that exceptional circumstances exist in relation to the applicant or NDIS-registered person such that the applicant or NDIS-registered person does not pose an unacceptable risk of harm to a person with disability.

(2)  For the purposes of this clause, exceptional circumstances are not limited to the circumstances of the presumed exclusion offence with which the applicant or NDIS-registered person has been charged or of which the applicant or NDIS-registered person has been convicted.

10.   Changes in circumstances of affected person

(1)  In this clause –

affected person means a person who –

(a) has been provided with a negative notice, or whose registration has been cancelled, under the Act in relation to the category of registration that is child and vulnerable adult-related (NDIS endorsed) activity; or

(b) has had registration, in a category of registration that is substantially similar to the category that is child and vulnerable adult-related (NDIS endorsed) activity, refused or cancelled under a corresponding law.

relevant date, in respect of an affected person, means the date on which –

(a) the negative notice was provided in respect of the affected person; or

(b) the registration of the affected person was cancelled.

(2)  For the purposes of section 19(3)(b) of the Act, the matters that may constitute significant and exceptional change in the circumstances of an affected person include but are not limited to the following matters:

(a) that the affected person was not found guilty in respect of proceedings, or those proceedings were withdrawn, and those proceedings –

(i) were pending at the relevant date; and

(ii) were taken into account when making the negative notice or cancelling the registration;

(b) that since the relevant date –

(i) the affected person has had a finding of guilt quashed or set aside; and

(ii) that finding of guilt had been taken into account when making the negative notice or cancelling the registration;

(c) that a finding in relation to any other matter that had been taken into account when making the negative notice, or cancellation of the registration, in respect of the affected person has been quashed or set aside or has otherwise expressly or impliedly ceased to have effect, since the relevant date.

(3)  Nothing in subclause (2) prevents the Registrar from allowing an application under section 19 of the Act that does not meet the requirements of that subclause if the Registrar is satisfied that there has been a significant and exceptional change in the person’s circumstances since the relevant date.

11.   New relevant information of NDIS-registered person

For the purposes of section 46 of the Act, any of the following information constitutes new relevant information in respect of an NDIS-registered person:

(a) the NDIS-registered person is suspected of having committed an NDIS-relevant offence;

(b) the NDIS-registered person has been charged with an NDIS-relevant offence;

(c) the NDIS-registered person has been convicted of an NDIS-relevant offence;

(d) the NDIS-registered person has been found guilty of an NDIS-relevant offence.

SCHEDULE 1 - NDIS-relevant Offences

Clause 3

PART 1 - Interpretation

1.   Interpretation

In this Schedule –

at-risk person means an adult who is, or may be, unable to take care of himself or herself, or unable to protect himself or herself from harm or exploitation, due to age, illness or disability;

parent includes a guardian, within the meaning of the Children, Young Persons and Their Families Act 1997 , a step-parent, a surrogate parent, an adoptive parent and a foster parent;

person under care means a child or at-risk person who has a relationship with the relevant person in the context of receiving support or services;

relevant person means an applicant or an NDIS-registered person.

PART 2 - Presumed exclusion offences

PART 3 - Specified Offences

Displayed and numbered in accordance with the Rules Publication Act 1953.

Notified in the Gazette on 30 December 2020

This order is administered in the Department of Justice.