NDIS Worker Clearances in South Australia – what you need to know
What is an NDIS workers clearance?
The Disability Inclusion Act 2018 (DI Act) provides the framework to support equal access and inclusion for people living with disability in community activities and support services in South Australia.
A person who resides in South Australia and undertakes, or intends to undertake, NDIS work in the state may apply to the Central Assessment Unit (Unit) – a specialised screening unit within the South Australian Department for Human Services – for a NDIS worker clearance.
An up-to-date clearance is often a prerequisite for employment with NDIS providers.
As part of the assessment process, the Unit will obtain and assess certain information relating to an applicant, including data from South Australia Police, the NDIS Commission and the Department for Child Protection.
In certain circumstances, the Unit may carry out a risk assessment in relation to a person. These circumstances include:
- If the person has been found guilty of a presumptive disqualifying offence (as defined by the DI Act).
- If criminal, disciplinary, misconduct or other relevant information exists in relation to the person.
The purpose of a risk assessment is to determine whether the person poses a real and appreciable risk of harm to people with disability.
If during a risk assessment the Unit forms the view that it should issue a person with an NDIS worker exclusion, it must notify that person of the intention to issue the exclusion and invite them to make submissions. In other words, the applicant will be given an opportunity to “show cause” as to why they should not be excluded. The Unit must consider those submissions before making a final decision.
It is not always easy to respond to an invitation to show cause. In particular, it can be challenging to identify exactly what the Unit is or is not entitled to consider during a risk assessment.
This is why seeking legal advice at this stage is strongly recommended.
What happens if I am issued with an NDIS worker exclusion?
If you are issued with an NDIS worker exclusion and wish to challenge the decision, you will need to act quickly – the DI Act allows only 14 days from the date of receiving the decision to apply to the South Australian Civil and Administrative Tribunal (SACAT) for a review.
The SACAT conducts an independent review of the Unit’s decision. It will examine the evidence or material before the Unit, as well as any additional evidence or material it considers appropriate to admit during the rehearing.
At a rehearing, the SACAT must reach the correct or preferable decision having regard to the DI Act. In doing so, it must have regard to, and give appropriate weight to, the original decision.
This means SACAT might:
- give significant weight to the original decision if satisfied that it is correct in law, correct as to factual findings, and correct in the exercise of any discretion or any evaluative judgment in the context of the objects and principles of the DI Act, or
- give little or no weight to the decision of the original decision-maker if, for example, it is not satisfied that the original decision-maker has approached its task correctly.
Following the review, the SACAT can affirm the decision, set it aside and substitute the decision or send the matter back to the original decision-maker for reconsideration.
There is a great deal to consider during any review proceedings in the SACAT – both in a legal sense and in a practical sense. An unsuccessful review outcome of this kind may result in a continuing exclusion, which can have serious and long-term implications on a person’s employment in the disability services sector.
If your ability to work is on the line, it is important to seek legal advice.
Get in touch
If you’ve received a show cause notice or an NDIS worker exclusion, and would like advice on your rights or options for review, we’re here to help.
You may also be interested in our blog on Working With Children Checks.
Contact Hanna Rogers from our Criminal Law team for clear, practical guidance tailored to your situation.
Email: hrogers@tgb.com.au
Phone: (08) 8205 1259