Worker screening in aged care and disability 

Worker screening looks like a Commonwealth scheme and is not one. The Aged Care Act 2024 (Cth) defines an aged care worker screening law as "a law of a State or Territory prescribed by the rules", so the decision that a worker does or does not pose a risk is made under State or Territory law¹. What the Commonwealth supplies is a national database, a set of consequences that flow from a screening decision, and a bridge between the aged care and disability systems. The prior question in any screening problem is which jurisdiction's law made the decision.

Where the decision is made

Section 7 defines an aged care worker screening check as an assessment, under an aged care worker screening law, of whether a person who works or seeks to work with individuals accessing funded aged care services poses a risk to such individuals. The definition of aged care worker screening law then sends the reader to State and Territory legislation prescribed by the rules.

The consequence is that the criteria, the evidence, the appeal rights and the duration of a clearance are all matters for the jurisdiction that made the decision, and none of them can be stated as an Australian rule. A student answering on whether a particular person can be cleared, or on how a refusal is challenged, must identify the State or Territory and work from its own statute.

What the Commonwealth adds: the database

Section 379(1) requires the Commissioner to establish, operate and maintain a database for the purposes of the Act, known as the aged care worker screening database, kept in electronic form (s 379(2)).

Section 379(3) states its purposes. The first is to maintain an up-to-date record of persons who, under decisions made under aged care worker screening laws, have been found not to pose a risk, or to pose a risk, to individuals accessing funded aged care services. The second is to maintain a record of other decisions relating to those decisions.

The third purpose is information sharing, and its reach is the point. The database shares information with registered providers that are employers or potential employers; with persons or bodies, whether registered providers or not, for the purposes of the Act or to facilitate employment, engagement or training of people to work with individuals accessing funded aged care services; with the Commissioner of the NDIS Quality and Safeguards Commission for that Commissioner's functions; with the Chief Executive Officer of the National Disability Insurance Agency for the Agency's functions; and with persons or bodies, including employers and potential employers, for the purposes of the National Disability Insurance Scheme.

A screening record generated in the aged care system is therefore available to the disability system by design, and s 379(4) makes clear that these purposes do not limit any further purpose prescribed by the rules.

The cross-scheme bridge

Two short provisions do the work that would otherwise require a worker to be screened twice.

Section 380 applies where an NDIS clearance decision is in force under an NDIS worker screening law in respect of a person working or seeking to work with people with disability. Subsection (2) provides that the decision "is taken, for the purposes of this Act (other than this Division), to be an aged care clearance decision in force, under an aged care worker screening law", in respect of that person working or seeking to work with individuals accessing funded aged care services.

Section 381 does the same for an NDIS exclusion decision, which is taken to be an aged care exclusion decision.

Three features are worth noting. The recognition runs in the direction stated — an NDIS decision is taken to be an aged care decision — and the provisions as drafted do not state the converse. It carries the adverse decision as well as the favourable one, so a person excluded in the disability system is treated as excluded in aged care. And the deeming applies "for the purposes of this Act other than this Division", so the recognised decision cannot be fed back through the recognition machinery itself.

How screening reaches a provider

Screening does not stand alone. It connects to provider regulation through the registration and conditions provisions: a worker's screening status bears on whether a provider is complying with its obligations, and a person's regulatory history — including a banning order made in either scheme — is a suitability matter when an entity or a responsible person is assessed for registration.

Applying this in a problem question

1. Identify the State or Territory whose worker screening law applies, and answer questions about the decision itself from that law.
2. Do not state a clearance criterion, duration or appeal right as a national rule.
3. Where the person holds an NDIS clearance, apply s 380 to deem it an aged care clearance rather than requiring a fresh check.
4. Where the person is subject to an NDIS exclusion, apply s 381 — the bridge carries adverse decisions too.
5. Check whether the point being argued falls inside the Division that creates the deeming, in which case the deeming does not apply.
6. Connect the screening status to the provider's obligations rather than treating it as a matter between the worker and the regulator alone.

Self-check

• Have I identified the jurisdiction whose screening law made the decision?
• Have I avoided stating a screening criterion as an Australian rule?
• Have I applied ss 380 and 381 in the direction the Act actually states?
• Have I remembered that the deeming does not operate within its own Division?