Resumed from 9 September.
Comments and speeches by various members
HON ALISON XAMON (North Metropolitan) [12.12 pm]: I rise on behalf of the Greens as the lead speaker on the National Disability Insurance Scheme (Worker Screening) Bill 2020 and I indicate that the Greens will support this legislation. It is an important bill. The aim of the bill is to ensure the safety and wellbeing of people with disability and their right to live free from abuse, violence, neglect and exploitation. That is clearly something that the Greens fully support because it is important, and this is a much-needed reform. Abuse of people with disability has been described as endemic and accounts of rape, neglect and violence are all too common. The Royal Commission into Violence, Abuse, Neglect and Exploitation of People with Disability was established in April 2019 in response to community concern about widespread reports of violence against and the neglect, abuse and exploitation of people with disability. That royal commission uncovered shocking examples of abuse of people with disability. The cases that became public are only the tip of the iceberg. I remind members of the mistreatment of Ann Marie Smith, who lived the final 12 months of her life alone on a wicker chair until she died of septic shock and multiple organ failure from severe pressure sores and irreversible malnutrition. She was only 54 years old.
The safeguards in WA have been lacking. We have had no process for screening people who work in this area. Although police checks might be required by many service providers, we know that they are simply not enough; they are not thorough enough. This bill seeks to implement WA’s obligations under the Intergovernmental Agreement on Nationally Consistent Worker Screening. It will provide for screening and ongoing monitoring of disability workers in WA delivering some NDIS services. It is due to commence on 1 February next year, which is why this bill has rightly been prioritised as needing to be passed this year.
This legislation is required in order to ensure nationally consistent NDIS worker screening. The result will mean that we will have portability across Australia. It aims to prevent people with disability from experiencing harm from poor quality or unsafe supports or services delivered under the NDIS. It is therefore intended to deter unsuitable people from working in the sector, exclude some people from working for registered NDIS providers in certain roles, and also reduce the potential for NDIS providers to employ workers who pose an unacceptable risk of harm to people with disability. The commonwealth’s responsibilities include establishing and administering a national clearance database to record outcomes of those worker screening checks, to enable employers to verify workers and also to check their clearance status. The NDIS Quality and Safeguards Commission was established for this purpose. I note that it is not mirror legislation; it aims for national consistency rather than seeking to ensure exact uniformity. The state still has discretion to impose penalties and issue physical cards to enable workers to commence work in advance of an application being determined. I will ask some questions about that in a moment. It is also drafted in WA to aim for consistency with the Working with Children (Criminal Record Checking) Act 2004.
Workers in WA will pay a single application fee that will entitle them to work throughout Australia. Screened workers from other jurisdictions will also be able to work here. I am interested to know whether the fee will be the same as the fee payable when applying for a working with children check. It is important that it is affordable given that so many of the workers in this area tend to be low paid.
Having a national scheme is a welcome move, and it will help prevent gaps. We know that the scheme will employ persons employed or otherwise engaged by registered NDIS providers, including contractors and subcontractors who are in risk-assessed roles, and that the people who will require clearance are key personnel such as those holding executive and senior management positions, roles under which the normal duties include the direct delivery of specified supports or services or are likely to require more than incidental contact with a person with disability, and self-employed people and volunteers used by registered NDIS providers and their subcontractors in risk-assessed roles. There are also people who do not require clearance—that is, workers of unregistered providers and people in non-risk assessed roles. The scheme seeks a balance between flexibility, choice, individual control—I understand that that is an important underlying tenet of the NDIS—quality and safeguarding. The workers of unregistered providers can apply for an NDIS clearance if they are delivering or planning to deliver NDIS supports and services and the application is endorsed by their employer but there is no requirement for them to apply.
I want to briefly make a comment about those gaps and the fact that worker screening will not be comprehensive. Workers of unregistered providers will not require a clearance. I also assume that workers providing care for people with disability who are ineligible for the NDIS, for example, because of their visa status, but who receive state disability services and support, will similarly not require a clearance. I would like to know whether that will also be the case for people who acquired their disability when they were aged over 65 and who are, by definition, ineligible for NDIS services. The question I have is: if they receive aged-care services and supports instead, does that mean that this class of people will miss out on worker screening protections? I am concerned that we may be creating a two-tiered system and, if that is the case, does the government have plans to address these potential gaps?
I acknowledge the right of people with disability to individual choice and control. There is a spectrum of opinions about what that looks like; however, we want to strike a reasonable balance. This legislation is about protection and it is important to ensure that if workers of unregistered providers are not being screened, that will not place national disability insurance scheme recipients at increased risk. Similarly, if workers who provide services to recipients of non-NDIS services are not being screened, will this place vulnerable people at greater risk? I hope that this area will be closely monitored by the state government and that it will swiftly respond to any concerns as they arise.
To return to the provisions of the bill, the chief executive officer of the Department of Communities has the ultimate responsibility for undertaking NDIS worker screening. Screening will involve a criminal record check, which will also contain convictions, including spent convictions, non-conviction charges and current pending charges, including offences committed or allegedly committed as a child. Clearances will remain in force for up to five years and they will be subject to ongoing monitoring. I also note the Auditor General’s findings about working with children clearance screening processes and the use of interim negative notices. It is obviously vital to ensure that people are protected while the screening is undertaken. I ask the minister: how long does the government estimate the screening process will take and can people still work while that screening is underway?
Class 1 and class 2 offences against WA legislation are listed in schedules 1 and 2, and these offences were agreed nationally. Additional offences and conditions for offences listed in the schedules may be prescribed in the regulations. I note that the Standing Committee on Legislation found that these provisions, which enable the addition of class 1 and class 2 offences through regulation, to be of concern because they are Henry VIII clauses but are justifiable by reason of the need to ensure that there is national consistency in worker screening. Of course, the Greens prefer that Henry VIII clauses not be used, but we accept this finding.
Conviction for a class 1 offence that is committed as an adult will result in automatic exclusion from NDIS work and the individual will not be entitled to reapply because they will be permanently excluded from this work. The question I have is: what happens if that same individual then seeks to work for an unregistered provider? Are there any protections in that instance? Exclusions must also be issued if the CEO conducts a risk assessment of the applicant or clearance holder and determines that there is an unacceptable risk that the person may cause harm to people with disability in the course of carrying out NDIS work. The CEO must impose an interim bar on applicants and a suspension on the clearance holders who either are or become disqualified, or presumptively disqualified, when a risk assessment is undertaken. The CEO may impose an interim bar of suspension on any other ground that they determine appropriate. Will a particular type of risk assessment tool be used? Does the minister have any information on its validity? I acknowledge that although these tools can be very useful, they are, of course, not immune from systemic bias.
Information gathering is not confined to simple criminal record checking. Other information relevant to risk might be considered. The CEO may request and consider information from any person or body when conducting a risk assessment. I note that the second reading speech states —
An unacceptable risk may arise from events that are not recent and need not be based on any assessment as to whether any conduct is likely to recur.
Therefore, I was hoping that the minister could provide an example of past behaviour that may be unlikely to recur but would result in an exclusion being issued.
I acknowledge that the bill takes a strong precautionary approach and that doubts about risk need to be resolved in favour of protecting people with disability from harm. I quote again from the second reading speech —
When the information considered in the risk assessment gives rise to significant concern that cannot be resolved one way or the other—for example, where allegations of offending or misconduct are unable to be proven to any given standard—the unacceptable risk test to be applied to decision-making under this bill will embody that precautionary approach.
That is outlined and it is made quite clear that that is the intent of this bill. The bill also contains important information-sharing provisions and powers of investigation and enforcement. I note that the bill also provides for the CEO to take submissions from applicants and clearance holders in advance of decisions to refuse or cancel a clearance. The transition arrangements will be in the regulations. I am pleased to see that the bill has the standard five-year review clause, which is always welcomed by the Greens.
A final question that I have is about the issue of exemption for work experience students. I understand that Queensland introduced such a measure and I want to know whether something such as that had been contemplated here in Western Australia.
It is really clear from our existing frameworks that they are simply inadequate to ensure that we have appropriate levels of protection for people with disability. The evidence to the royal commission really highlighted how big those current gaps are, and I think the bill before us, therefore, is going to be a very welcome and important mechanism that will address some of those gaps. But it is important to note that the bill will not address all the gaps. I think it is important to recognise that the passage of this bill will not negate the need for robust training and supervision. It really is only one part, albeit an important part, of the solution to preventing abuse and neglect of people with disability.
Members, we all have a role to play in supporting people with disability and in calling out and reporting harmful behaviour and treatment if we witness it. I welcome the bill. I note that it is important that we continue to work to strike the right balance in supporting and facilitating the right to self-determination for people with disability— in other words, not over-regulating the area—whilst also ensuring that there are appropriate safeguards that seek to realise the right of people with disability to live in a healthy environment, free from neglect, abuse, violence, intimidation and exploitation. This bill is part of that spectrum of supports.
Comments and speeches by various members
Question put and passed.
Bill read a second time.
The Deputy Chair of Committees (Hon Robin Chapple) in the chair; Hon Stephen Dawson (Minister for Disability Services) in charge of the bill.
Comments and speeches by various members
Title put and passed.
Bill reported, with amendments, and, by leave, the report adopted.
As to Third Reading — Standing Orders Suspension — Motion
On motion without notice by Hon Stephen Dawson (Minister for Disability Services), resolved with an absolute majority —
That so much of standing orders be suspended so as to enable the bill to be read a third time forthwith.
Bill read a third time, on motion by Hon Stephen Dawson (Minister for Disability Services), and returned to the Assembly with amendments.