Wednesday, 12 November 2025

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:09): I move:

That I introduce a bill for an act to amend the Child Wellbeing and Safety Act 2005, the Worker Screening Act 2020, the Social Services Regulation Act 2021, the Disability Service Safeguards Act 2018, the Disability Act 2006, the Residential Tenancies Act 1997 and other acts and for other purposes’.

Motion agreed to.

 Jess WILSON (Kew) (12:09): I ask the minister for a brief explanation of the bill.

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:09): Thank you to the member for Kew. The Social Services Regulation Amendment (Child Safety, Complaints and Worker Regulation) Bill 2025 will essentially do three things. First and foremost, it will implement the reforms to transfer the child safeguarding schemes, the working with children check, the reportable conduct scheme and the child safety standards into the Social Services Regulator. This is in line with the recommendations from the rapid child safety review. Secondly, the bill will enhance the working with children check and the reportable conduct scheme, merge the disability entities into the social services regulator and establish a complaints function across the disability and social services sector. Thirdly, the reforms will enhance the Social Services Regulator to bring together and analyse a broad range of information from across the regulatory bodies to inform its assessment of individuals’ suitability to work with children.

Read first time.

Ben CARROLL: I move:

That this bill be read a second time immediately.

Under standing order 61(3)(b), I advise the house that the representatives of the other parties and independents have been provided with a copy of the bill and a briefing in accordance with the standing orders.

James Newbury: On a point of order on the matter, Speaker, the coalition will of course not be dividing on the immediate moving of this matter. In fact the coalition has been calling for action. We have been calling for speed, and we do note that this legislation has been rushed in terms of –

Members interjecting.

James Newbury: As the member for Bulleen has just said, unlike the adult time supposed bill, which has not been drafted, at least we have a bill that has been put before the house. But it does make the point that it is important that the chamber and Victorians more broadly have the opportunity on what looks like – I look across the other side of the table and I see probably a 1000-page –

The SPEAKER: Order! Member for Brighton, are you making a point of order?

James Newbury: I am.

The SPEAKER: About?

James Newbury: On the matter – on what appears to be a 1000-page bill. We will not be dividing, but we do think it is important to note that the government does need to be scrutinised in relation to the bill and that the bill has been rushed through this place.

The SPEAKER: There is no point of order.

Motion agreed to.

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:15): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Social Services Regulation Amendment (Child Safety, Complaints and Worker Regulation) Bill 2025:

In accordance with s 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Social Services Regulation Amendment (Child Safety, Complaints and Worker Regulation) Bill 2025 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights protected by the Charter. I have this opinion for the reasons outlined in this statement.

Overview of the Bill

The purposes of the Bill, relevant to human rights, are:

• to amend the Child Wellbeing and Safety Act 2005 (CWS Act) to:

•   to transfer the education and guidance functions, and regulatory remit, of the Commission for Children and Young People under the Child Safe Standards to the Social Services Regulator;

•   to transfer the functions of the Commission for Children and Young People in relation to the reportable conduct scheme to the Social Services Regulator including the administration, oversight and monitoring of the reportable conduct scheme;

•   to expand the ability to share information about reportable conduct allegations for the purposes of the WWC check scheme; and

•   to enable recognition of investigations by corresponding reportable conduct schemes in other jurisdictions;

• to amend the Worker Screening Act 2020 (Worker Screening Act):

•   to transfer the functions of the Secretary to the Department of Justice and Community Safety under that Act to the Social Services Regulator;

•   to enable the Social Services Regulator to assess or re-assess a person’s eligibility to hold a Working With Children (WWC) clearance on the basis of child safety risk information;

•   to enable a finding of reportable conduct in another jurisdiction to trigger a reassessment of a WWC check in Victoria;

•   to require every applicant for a WWC check to undergo training and testing;

•   to enable a broader range of information to be considered to assess, refuse, suspend or revoke a WWC check or a WWC clearance;

•    to require persons and agencies to verify that any persons they engage or offer for child-related work have applied for or hold a WWC check;

•   to enable an interim bar or suspension to be applied to an applicant or clearance holder to prevent the applicant or clearance holder from working with children while a review, check, application or re-assessment is undertaken; and

•   to provide for internal review of WWC check decisions by the Social Services Regulator in place of VCAT; and

• to amend the Social Services Regulation Act 2021 (SSR Act) to:

•   to enable the Social Services Regulator to respond to complaints about social services, disability services and providers of those services as regulated under that Act, the Disability Act 2006 and the Disability Service Safeguards Act 2018; and

•   to provide for the appointment of Associate Social Services Regulators to transfer the functions of the Disability Services Commissioner, the Victorian Disability Worker Commission and the Disability Worker Registration Board of Victoria to the Social Services Regulator; and

•   to make child safety related amendments and other miscellaneous and consequential amendments to that Act; and

• to amend the Disability Service Safeguards Act 2018 (Disability Service Safeguards Act)

•   to change the title for that Act; and

•   to abolish the Victorian Disability Worker Commission and the office of the Victorian Disability Worker Commissioner; and

•   to abolish the Disability Worker Registration Board of Victoria; and

•   to provide for the regulation of certain social service and disability providers, workers and carers; and

•   to provide for the registration and regulation of disability workers and students; and

•   to provide for the registration of out of home carers; and

•   to confer functions on the Social Services Regulator; and

• to amend the Disability Act 2006 –

•   to abolish the Disability Services Commissioner; and

•   to make consequential amendments to that Act; and

• to amend the Residential Tenancies Act 1997 in relation to specialist disability accommodation including to validate certain SDA residency agreements; and

• to make consequential and miscellaneous amendments to these and other Acts.

The importance of the Bill

The amendments in this Bill serve two significant purposes:

• bolstering protections, safety and welfare in both disability, social service and child-related work settings, and;

• bringing the functions of Victoria’s child safeguarding and disability safeguarding regulatory bodies into the Social Services Regulator, creating one point of entry for risks to be raised across both sectors and complaints to be brought by service users, improving service users’ ability to have their voices heard and enforce their rights and improving timely access to information by the Regulator.

To frame the discussion that follows and avoid repetition, I will outline these now.

Improving child safety

The primary purpose of the Bill is to significantly overhaul the existing systems that safeguard child safety in Victoria so that the systems are as robust and effective as possible, in order to ensure that children are protected.

In response to the recent allegations of child sexual abuse in early childhood education and care centres across Melbourne, the Government commissioned a Rapid Review into child safety to identify immediate actions to improve the Working With Children Check (WWCC) Scheme and the safety of children in early childhood education and care settings. The Rapid Child Safety Review (Rapid Review) identified immediate actions the Victorian Government should take to close existing gaps in the WWCC Scheme (provided for in the Worker Screening Act 2020) and the Reportable Conduct Scheme (provided for in the Child Wellbeing and Safety Act 2005) to ensure predators are quickly detected and excluded from working with children in the national early childhood education and care system or elsewhere. In short, the Rapid Review found Victoria’s laws were no longer fit for purpose and among the least flexible in the country – and needed a fundamental reset.

In response to the Rapid Review’s finding that Victoria’s current child safeguarding regulatory framework is fragmented, with functions sitting across multiple regulatory bodies, this Bill transfers the WWCC scheme (currently administered by the Department of Government Services) and the Reportable Conduct Scheme and Child Safe Standards (currently administered by the Commission for Children and Young People (CCYP)) to the Social Services Regulator. In doing so, all child safety risk information and risk-assessment capability is consolidated with the Social Services Regulator.

In making the Social Services Regulator responsible for administering the WWCC and the Reportable Conduct Schemes, the Regulator will be responsible for rebalancing the schemes in favour of child safety. This will be achieved by amending the Reportable Conduct Scheme so that information relevant to child-safety risk, whether substantiated or not, can be taken into account by the Social Services Regulator. The Bill also removes the discretion not to share findings and provides for the recognition of interstate investigations and findings. These changes to the legislation ensure that the Regulator is able to better assess a person’s suitability to work or volunteer with children and to better identify and address risks to children across the more than 12,000 organisations in Victoria that exercise supervision, care or authority over children.

Further, child safety is enhanced by allowing the Social Services Regulator to have regard to unsubstantiated allegations and intelligence when assessing, refusing, temporarily suspending or revoking a WWCC. By lowering the threshold of risk relevant information that may be considered when making decisions whether to grant or revoke clearances to work with children, the Bill moves away from the existing over-reliance on ‘formal’ charge, conviction or finding of guilt or substantiated disciplinary or regulatory finding to trigger action. In doing so, it ensures that ‘breadcrumbs’ or ‘red flags’ can be joined up to provide a more complete picture of risk. This is critical because it is often in the pattern of behaviour or repetition of incidents (which on their own may not be considered sufficiently serious or evidence for substantiation) that risks to children become evident.

In order to ensure that persons working with children have a base level of child safety literacy to equip them to recognise, identify and adequately act to protect children from abuse, the Bill also requires all persons applying for a WWCC to complete mandatory online child safety training and testing before being granted a WWCC. The Bill further implements a requirement for all organisations that engage people in child-related work to verify the status of that person’s WWCC clearance and to notify the Social Services Regulator of all engagements of WWCC clearance holders so the Social Services Regulator will be aware of the movement of workers and volunteers across organisations. To support compliance with this requirement, a failure to comply with this obligation is an offence under the Bill.

To protect child safety and promote decision-making through a child safety lens, the Bill replaces the external VCAT review pathway with an internal review process wherein the Social Services Regulator is required to establish an expert panel that can provide independent specialist advice as needed in relation to individual cases where review has been sought. To ensure procedural fairness is safeguarded, the Bill imposes a requirement for the provision of reasons for an adverse internal review decision.

In doing the above, the Bill pursues the important and pressing objective of protecting child safety. In doing so, it promotes the protection of a child’s best interests in accordance with s 17(2) of the Charter, which seeks to protect important values such as the bodily integrity, mental health, dignity and self-worth of a child. The right recognises the special vulnerability of children and the need for measures to protect them and foster their development and education.

At the same time, the balance of these reforms will necessarily interfere with the right to privacy, which has been interpreted to extend to matters relating to the right to seek employment, and may be interfered with where employment restrictions impact sufficiently upon the personal relationships of the individual and otherwise upon the person’s capacity to experience a private life (ZZ v Secretary, Department of Justice [2013] VSC 267). While it is recognised that the balance of these amendments will collectively impose more restrictions on a person’s ability to engage in child-related work, including extending to preventing a person from continuing to work in the sector to which they may be primarily qualified for, they are necessary to ensure that the protection of children and their best interests are paramount. The changes to the WWCC laws are principally directed at stopping predators from commencing or continuing to engage in child-related work.

Enhancing the rights of service users and children

The Bill consolidates a number of disability oversight bodies – namely, the Victorian Disability Worker Commissioner, the Disability Worker Registration Board and the Disability Services Commissioner – into the Social Services Regulator. By transferring the functions and powers of these entities to the Social Services Regulator, the Bill streamlines and simplifies what is currently a complex safeguarding system, particularly given the number of separate disability oversight bodies. The Bill also establishes a complaints function in the Social Services Regulator, which will be available across all social services in its remit.

In doing the above, the Bill seeks to promote the rights and protection of service users, including their rights to equality, life, privacy, freedom of movement and protection from inhumane and degrading treatment.

Transferring the functions of the Victorian Disability Worker Commissioner and Disability Worker Registration Board to the Social Services Regulator will bring together the worker regulation schemes currently administered by these bodies with the existing worker regulation scheme for the out of home care sector administered by the Social Services Regulator. This, together with the consolidation of disability, child safety and social services provider regulation under the Social Services Regulator, will facilitate expanded access to regulatory intelligence across multiple service sectors, increasing the quality and safety of social services in the Regulator’s remit.

The Bill, by consolidating the two worker regulation schemes and broadening the Social Services Regulator’s complaints function, creates one clear point of entry for disability service users, children and young people in out of home care and their families and advocates to make a complaint. It simplifies the current fragmented schemes, creating a more accessible pathway for complaints and will enhance protections by, among other things, allowing the Regulator to decide that a worker who is prohibited from working in the disability sector, also be prohibited from working in the out of home care sector.

Human rights

In light of the large scope of this Bill, this Statement of Compatibility continues with an outline of the rights generally engaged by the Bill and then discusses the compatibility of relevant Parts of the Bill with those rights.

The human rights protected by the Charter that are relevant to this Bill are as follows:

Right to protection from discrimination (section 8)

Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 on the basis of an attribute in s 6 of that Act. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Right to privacy and reputation (section 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy is broad in scope and encompasses rights to physical and psychological integrity, individual identity, informational privacy and the right to establish and develop meaningful social relations.

Section 13(b) of the Charter relevantly provides that a person has the right not to have their reputation unlawfully attacked. An ‘attack’ on reputation will be lawful if it is permitted by a precise and appropriately circumscribed law.

Right to freedom of expression (section 15(2))

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. This right has been interpreted as encompassing a right to access information in the possession of government bodies, at least where an individual seeks information on a subject engaging the public interest or in which the individual has a legitimate interest.

However, s 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Right to property (section 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right requires that powers which authorise the deprivation of property are conferred by legislation or the common law, are confined and structured rather than unclear, are accessible to the public, are formulated precisely and do not operate arbitrarily.

Right to a fair hearing (section 24(1))

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests. While recognising the broad scope of s 24(1), the term ‘proceeding’ and ‘party’ suggest that s 24(1) was intended to apply only to decision-makers who conduct proceedings with parties. As many of the regulatory decisions at issue here do not involve the conduct of proceedings with parties, there is a question as to whether the right to a fair hearing is engaged. In any event, I will proceed to discuss the impact on fair hearing in the event a broad reading of s 24(1) is adopted.

The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Right to protection against self-incrimination (section 25(2)(k))

Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. This right is at least as broad as the common law privilege against self-incrimination. It applies to protect a charged person against the admission in subsequent criminal proceedings of incriminatory material obtained under compulsion, regardless of whether the information was obtained prior to or subsequent to the charge being laid.

Human rights issues

Chapter 2 – Social Services Regulator and reportable conduct functions

Part 2.1 – Amendment of Child Wellbeing and Safety Act 2005.

Clause 7 deals with the sharing of ‘corresponding reportable conduct’ information between Victoria and other States and Territories. Clause 7 inserts new s 16ZC(2)(da) in the CWS Act which provides that the Commission, the head of an entity and a regulator may disclose specified information to ‘any person or body, including a corresponding reportable conduct regulator, if the information relates to the performance of a function or exercise of a power conferred on that person or body by or under a corresponding reportable conduct law’.

Clause 8 enables the Commission, until the function transfers to the Social Services Regulator, to disclose information relevant but additional to a finding of reportable conduct, for the purposes of a WWCC. This includes any other reportable allegation, any other concern that reportable conduct has been committed, and investigations and findings in relation to either of those things.

While these provisions engage the right to privacy, this interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in s 13 of the Charter. The sharing of reportable conduct information with corresponding interstate bodies will assist in ensuring that all information relevant to assessing someone’s suitability to work or volunteer with children is provided to, and in the possession of, those regulating child safety interstate. Additionally, the new provisions clearly set out the parameters regarding the sharing of information, and persons working in this highly regulated environment must necessarily have a lesser expectation of privacy in relation to their personal information so far as it is relevant to their employment in this context. It is my view that these provisions do not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill, such that it is reasonable and proportionate to the Bill’s important objectives.

Part 2.4 – Amendment of Worker Screening Act 2020

Part 2.4 of the Bill makes amendments to the Worker Screening Act relating to interstate reportable conduct findings.

Clause 26(b) will amend the definition of relevant disciplinary or regulatory finding under the Worker Screening Act to include a finding of reportable conduct made under a corresponding reportable conduct law by a corresponding reportable conduct regulator or another entity responsible for investigating reportable allegations under that law. Clause 26(a) will insert definitions of corresponding reportable conduct law and corresponding reportable conduct regulator into the Worker Screening Act.

These amendments, when read together with sections 38, 78, 27 and 64 of that Act will have the substantive effect of enabling a finding of reportable conduct in another jurisdiction to trigger a reassessment of a person’s eligibility to hold a NDIS clearance or WWC clearance in Victoria.

Fair Hearing right (section 24)

As outlined above, if a broad reading of fair hearing is adopted and the right is taken to encompass the decision-making procedures of a WWC check (which are determinative of legal rights and interests), the changes made under Part 2.4 to the WS Act to enable an interstate reportable conduct finding to trigger a reassessment of an NDIS clearance or WWC clearance in Victoria are likely to engage this right. The fair hearing right is principally concerned with the procedural fairness of a decision, which in the context of these types of administrative decisions, generally requires prior notice of a decision, informing interested parties of the matters that may be relevant to a decision, and giving them a ‘reasonable opportunity’ to present their case and respond to adverse information. Any reductions in procedural fairness at first instance can be cured on review.

The concept of a ‘civil proceeding’ in s 24(1) is not limited to judicial decision makers, but may also, adopting a broad reading of s 24(1), encompass the decision-making procedures of other administrative decision-makers. If a broad interpretation is adopted and it is understood that the fair hearing right is engaged by an interstate finding triggering an assessment or reassessment of a NDIS clearance or WWC clearance, I am satisfied that this right would not be limited because of the various procedural fairness safeguards provided in the Bill.

If the Regulator, for example, proposes to refuse to give a WWC clearance under s 65 of the WS Act, the Regulator must, in accordance with s 66, before finally deciding the application, give written notice to the applicant, state the information of which the Regulator is aware, and invite the applicant to make submissions on the matter specified in the notice. New Division 8 also provides for internal review of a decision by the Regulator.

Privacy

Although the right to privacy may be limited by way of information being shared from interstate bodies to the Regulator, I do not consider that this will ultimately limit a person’s right to privacy. This is because the terms of the provisions seek to achieve the objectives of promoting child safety and making disclosures where necessary. I consider that the privacy right is not in fact limited, given any interference in privacy would be pursuant to law and is not arbitrary.

Chapter 3 – Transfer of child safety functions to Social Services Regulator

Part 3.1 –Amendment of Child Wellbeing and Safety Act 2005

Division 1 – Child Safe Standards

Information sharing

The Bill amends a number of information-sharing provisions in the CWS Act to transfer the existing powers of the Commission to the Regulator:

• Clause 36 amends s 25D(1) of the Act to omit reference to the Commission and empowers the Regulator to receive information and data from sector regulators in relation to their functions in compliance with the Child Safe Standards;

• Clause 43 amends s 41B(1) of the Act to substitute reference to the Commission with the Regulator, and allows a relevant person to disclose protected information (other than exempt or privileged information) to any person where reasonably necessary, if the relevant person is the Regulator and the disclosure is in the exercise of a function or power under the SSR Act;

• Clause 44 substitutes reference to the Commission with the Regulator in s 41D of the Act, and allows a relevant person to disclose protected information to any of the specified persons in the provision to report concerns about the failure of a relevant entity to promote the safety of children, to prevent child abuse or to properly respond to allegations of child abuse; and

• Clause 45 amends s 41H(2) to substitute reference to the Commission with the Regulator and allows a relevant person to disclose protected information to a person under s 41H(1) if the information is relevant to the functions of the Regulator.

As discussed above, although the right to privacy may be limited by way of protected information being shared to a new body (being the Regulator), I do not consider that this will ultimately limit a person’s right to privacy. This is because the terms of the provisions seek to achieve the objectives of promoting child safety and making disclosures where necessary.

Immunity

Clause 38 amends s 32B(1) to provide that the Regulator, including Associate Regulators and those acting in these positions, will not be personally liable for anything done or omitted to be done in good faith for the purposes of Part 6, which may impact property rights where ‘property’ includes a cause of action.

However, s 32B(2) provides that where any liability would ordinarily attach to the Regulator, it attaches to the Crown. Therefore, the transfer of the property or liability will not limit the property rights of persons holding the interest, as they are not being deprived of their interest in the property or liability, but rather, the property or liability is transferred without altering the substantive content of that property right or liability.

For the same reasons I have discussed above in relation to these types of standard immunity provisions provided to Regulators, I do not consider this clause to limit the right to property, as any deprivation of a claim for personal liability is in accordance with law and not arbitrary for purpose of facilitating the Regulator to maintain the effectiveness of its protective functions without fear of tort liability.

Division 2 – Transitional provisions

Clause 56 inserts, among other things, transitional provision section 63 that sets out that the CCYP must, as soon as practicable after the Amendment Act comes into effect, disclose to the Social Services Regulator any information held by the CCYP that relates to the Child Safe Standards including, but not limited to, information provided to the CCYP by other sector regulators and by integrated sector regulators, and any information held by the CCYP that relates to the oversight of the reportable conduct scheme. The provisions provide that s 55 of the Commission for Children and Young People Act 2012 (CCYP Act) does not apply to a relevant person (within the meaning of s 54 of the CCYP Act) who discloses information for the purposes of that section. New s 64 provides for the continued protection of information following the transfer of functions from the Commission to the Regulator. New section 64(1) provides for section 41HA to continue to apply to a former relevant person. New section 64(2) provides that s 41HA of the CWS Act will not apply to a former relevant person (as defined in new section 64(3)) who disclosures information for the purposes of section 63. This is to protect the Commission from prosecution for disclosure of protected information during the transfer of information to the Social Services Regulator.

The purpose for this transfer of information is to enable the Regulator to exercise their new functions as it relates to Child Safe Standards and the reportable conduct scheme under the Amendment Act.

Privacy right

While these amendments have the potential to interfere with the right to privacy, the interference will be neither unlawful nor arbitrary. This is because the transfer of information is confined to the statutory purpose of enabling the Regulator to exercise their new functions pertaining to Child Safe Standards and reportable conduct scheme, which are currently exercised by the CCYP. The consolidation of information necessary to safeguard child safety with the Regulator remedies the problem of fragmentation identified by the Rapid Review, which give rise to quality and safety risks arising from unused risk information. I consider any interference with informational privacy to be reasonable and proportionate to the Bill’s important objectives.

Part 3.2 – Amendment of Worker Screening Act 2020

Division 1 – Own motion assessments and reassessments and consideration of additional information

The Bill transfers and amends functions and powers relating to WWC clearance from the Secretary to the Regulator.

Clause 77 amends s 54 of the Worker Screening Act to insert additional requirements for each WWC application. In addition to the requirement to authorise the conduct of a police record check and consent to enquiries being made of disciplinary bodies, a WWC applicant will be required to consent to enquiries being made of any person for the purposes of obtaining child safety risk information and authorise the disclosure of any relevant information by any person for that purpose when assessing the WWC application and while the clearance is in force (new ss 54(2)(d) and (e)).

If the Regulator is required or proposes to refuse to give a WWC clearance under s 61, 63 or 65 of the WS Act, the Regulator must, in accordance with s 66, before finally deciding the application, give written notice to the applicant, state the information of which the Regulator is aware, and invite the applicant to make submissions on the matter specified in the notice. Clause 80 amends s 66 by removing the requirement for the Regulator to, in accordance with 66(1)(a)(ii), give written notice to an applicant in respect of a Category C determination that states the information about the applicant of which the Regulator is aware if:

• the Regulator proposes to refuse to give a WWC clearance under s 65, and

• the information of which the Regulator is aware is ‘child safety risk information’, and

• the Chief Commissioner of Police or the Regulator is satisfied that disclosing that information in the notice would prejudice an investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or pose a serious risk to the safety of any person.

Section 69 of the WS Act provides that the Regulator must notify an applicant for a WWC check in writing as to whether the applicant has been given a WWC clearance or a WWC exclusion. Clause 81 amends s 69 by removing the requirement for the Regulator to, in accordance with 69(2)(a), state the reasons for the decision to give the exclusion if the applicant has been refused a WWC clearance under s 65 and the reason for the decision to give the WWC exclusion is ‘child safety risk information’, and the Chief Commissioner of Police or the Regulator is satisfied that disclosing the ‘child safety risk information’ would: prejudice an investigation; enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement; or pose a serious risk to the safety of any person.

Section 88 of the WS Act provides that if the Regulator proposes or is required under sections 83, 85 or 87 to revoke a person’s WWC clearance, the Regulator must, before finally deciding the re-assessment, give a written notice to the WWC clearance holder that informs the person of the proposal or requirement, states the information about the person of which the Regulator is aware, and invites the person to make submissions. Clause 87 amends s 88 by removing the requirement for the Regulator to, in accordance with 88(1)(a)(ii), state the information about the person of which the Regulator is aware – if the Regulator proposes to revoke the WWC clearance under s 87 and the information of which the Regulator is aware is ‘child safety risk information’, and the Chief Commissioner of Police or the Regulator is satisfied that disclosing that information would prejudice an investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or pose a serious risk to the safety of any person.

Section 91 of the WS Act provides that if the Regulator revokes a person’s WWC clearance under s 83, 85 or 87, the Regulator must give the person a WWC exclusion and further, must give a written notice to the WWC clearance holder that states the reasons for revoking the person’s WWC clearance and informs the person of their right of review of the decision. Clause 88 amends s 91 by removing the requirement for the Regulator to, in accordance with 91(2)(a), state the reasons for revoking the person’s WWC clearance and giving the person a WWC exclusion if the WWC clearance has been revoked under s 87 and the reasons for the decision to revoke the WWC clearance and give the WWC exclusion is ‘child safety risk information’, and the Chief Commissioner of Police or the Regulator is satisfied that disclosing that information would prejudice an investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or pose a serious risk to the safety of any person.

The amendments to sections 66, 69, 88 and 91, have the effect of removing the Regulator’s obligation, in specific circumstances, to provide WWC applicants or WWC clearance holders information that is categorised as ‘child safety risk information’ on which the Regulator relies when making a decision to refuse an application, revoke a WWC clearance and impose an WWC exclusion. These amendments engage the fair hearing right.

Clause 12 in Part 2.2 inserts new s 19(1)(ab) in the SSR Act, requiring the Regulator, as part of their annual reporting requirements, to report on the number of adverse decisions made on the basis of child safety risk information not disclosed to the applicant or clearance holder in accordance with the above amendments to the WS Act. This will serve the important purpose of providing greater transparency for the public about the number of such decisions being made.

Privacy right

The amendments to s 54 engage the right to privacy and reputation in s 13 of the Charter as it permits the Regulator to obtain broader information about a WWC applicant, not only for the assessment of the initial application but throughout the time the WWC clearance is in force. The provision makes clear that the Regulator will make broad enquiries of other agencies as to regulatory or disciplinary enquiries and investigations. The applicant is given an opportunity to consider whether they will proceed with the WWC check application or not and allowed the chance to provide their informed and free consent. The provision seeks to achieve the objectives of promoting child safety by enabling the Regulator access to relevant and appropriate information that is clearly related to the decision as to whether it is appropriate for a person to work with children. I consider that the privacy right is not in fact limited, given any interference in privacy would be pursuant to law and is not arbitrary.

Fair Hearing right

Adopting the broad reading of fair hearing, the powers under Chapter 3 of the WS Act to revoke or suspend an existing WWC clearance are likely to engage this right.

The amendments to sections 66, 69, 88 and 91 provide the Regulator with the discretion, in specified circumstances, to not provide the applicant or clearance holder with the ‘child safety risk information’ held by the Regulator when making a decision, or when a decision has been made, the reasons for that decision. While internal review of an adverse decision is an available option for the applicant (as is the ability to apply for judicial review in the Supreme Court), without awareness of the reasons for the adverse decision, their ability to argue against the Regulator’s decision will be impacted.

I accept that not disclosing information to an applicant in these circumstances is a significant limit on the right to fair hearing. However, the limit serves an important purpose. The Rapid Review made clear the need for a shared intelligence and risk assessment capability to uphold child safety. The criteria relating to excludable information is limited to information carrying a risk of adverse public interest outcomes if disclosed, such as prejudicing an investigation, confidential source or enlivening serious safety risks. It is essential that the Regulator be able to have regard to all relevant risk information it holds, including intelligence from confidential sources. It is also essential that those entities sharing confidential information with the Regulator (such as Victoria Police or Child Protection) can be assured that such information will remain confidential in limited necessary circumstances. Without this circle of trust, the ability of the Regulator to take swift decisive action in favour of child safety would be compromised.

In my view, the paramount consideration should be the protection of children and these limits are necessary to fix quality and safety issues identified by the Rapid Review and give effect to one of its key findings that the WWC screening needs to be re-calibrated to better protect child safety. Less restrictive alternatives have not worked. I accordingly consider these changes compatible with the Charter.

Divisions 1 and 2 – Suspension of WWC clearance and Interim bar to engaging in child-related work

Division 1 of Part 3.2 of the Bill, specifically clause 84, empowers the Regulator to suspend a person’s WWC clearance whilst a re-assessment of their eligibility to hold the WWC clearance is pending. This can occur if the Regulator receives or becomes aware of child safety risk information and is satisfied that it is in the interests of child safety to suspend the WWC clearance. A suspension will continue in force until the Regulator determines whether or not to revoke the WWC clearance, gives an interim WWC exclusion, withdraws the suspension, or after 24 months (new s 79(7)). The Regulator must review the decision to suspend a person’s WWC clearance 6 months after it comes into force and then at least every 3 months after the first review, while the suspension is in force. It is open to the Regulator to withdraw the suspension of a person’s WWC clearance at any time by providing them with written notice (new s 79(9)).

In addition to the suspension powers relating to existing WWC clearance holders, Division 2 of Part 3.2 of the Bill inserts new Part 3.1A into the Worker Screening Act 2020. New s 71A empowers the Regulator to place an interim bar on an applicant for a WWCC if, at any time before deciding the application, they receive or become aware of child safety risk information relating to the applicant and are satisfied that an interim bar is in the interests of child safety. An interim bar will continue in force until the Regulator grants a WWC clearance, exclusion or an interim WWC exclusion, or the application for a WWCC is withdrawn, or the Regulator withdraws the interim bar under new s 71D, or after 24 months (new s 71B).

The Regulator must review the interim bar 6 months after it comes into force and then at least once every 3 months after that first review (new s 71C) up to a total permissible time period of 24 months (new s 71B(d)). The Regulator must give an applicant for a WWC check written notice of the interim bar stating that they must not engage in child-related work while the bar is in force, and disclose the child safety risk information on which the interim bar is based (new s 71A(2)(c) unless doing so would prejudice an investigation, enable the discovery of the existence or identity of a confidential source of information relevant to law enforcement, or poses a serious risk to the safety of any person (new s 71A(3)).

Privacy right

Given the suspension and interim bar can prevent a person from engaging in child-related work for up to 24 months, this risks interfering with the right to privacy as outlined above, in circumstances where a restriction on employment sufficiently affects an individual’s personal relationships at work and capacity to experience a private life. Given the suspension powers and interim bar would prevent a person from pursuing employment for which they are qualified, it may negatively affect their capacity to develop personal relationships and have a private life.

However, I consider that the privacy right is not in fact limited, given any interference in privacy would be pursuant to law and is not arbitrary. In my view, the suspension and interim bar are proportionate, temporary measures to achieve the important purpose of protecting children by closing a gap in the legislation where there is currently no ability to immediately prohibit a person from working with children while the Regulator undertakes an assessment or re-assessment of a person’s WWC clearance and where there is information to indicate the person may be a safety risk to children. The suite of interim decisions to be made available to the Regulator, including suspensions and interim bar, will act to ensure the Regulator can act on information that comes to light if it presents a sufficiently serious risk to child safety. The inclusion of a mandatory review period for a suspension and interim bar of 6 months then every 3 months is a further safeguard to ensure that the suspension or interim bar remain appropriate and proportionate. The duration of these interim decisions is to enable law enforcement investigations and ensuing court matters to be fully resolved. The three-monthly reviews included are to ensure that the Regulator regularly liaises with outside bodies as to the progress of investigations and hearings.

Fair hearing

The decision by the Regulator to impose an interim bar or a suspension on a person may engage the right to fair hearing under s 24 of the Charter, given the right extends to civil proceedings, which may include proceedings of an administrative character, and could extend to the decisions of entities such as the Regulator that affect a person’s legal rights and interests.

If a broad reading of the Charter’s fair hearing right is adopted, I accept an interim bar or suspension is likely to limit the right in that a person is not provided with an opportunity to make submissions to the Regulator before an interim bar or suspension is imposed, and in some cases will not know the exact content of any allegations against them. However, I consider that the limit is reasonably justified under s 7(2) of the Charter, given the power to issue an interim bar or suspension is a crucial protective measure that ensures that persons who may pose a risk to children are prohibited from working with children until their suitability for a WWC clearance is properly investigated. I do note that a person is provided with notice of the decision, and a copy of the information upon which it was based (subject to exceptions relating to investigative integrity, safety of children and confidential sources), and that both the interim bar and suspension must be reviewed by the Regulator 6 months after the day the bar or suspension comes into force, and then on a regular basis every 3 months after that up to a maximum total time period of 24 months. A person is not precluded from being able to provide information to the Regulator in relation to those reviews.

The interim bar and suspension powers improve the WWCC process in Victoria, which was recommended for reform by the Rapid Review to improve its flexibility, make it fit for purpose and to better prioritise the safety of children. It adopts the approach taken in other jurisdictions to ensure immediate action can be taken where there is a real and appreciable risk of harm to children pending a risk assessment or completion of an investigation. It is critical to the protective objectives of the Bill that the Regulator is provided with the ability to access broad child safety risk information, including unsubstantiated information, and act to protect children’s safety. The suite of above measures function together to ensure that final decisions on unsubstantiated information would be rare.

I am therefore of the view that Divisions 1 and 2 of Part 3.2 of the Bill are compatible with the right to a fair hearing under s 24 of the Charter.

Division 4 – Child safety training amendments

Clauses 96 and 98 of Division 4 amend the WS Act to require an applicant for a WWCC to provide proof of completion of child safety training, defined to mean training approved by the Minister, with their application. New s 54(6A) makes clear that this training must be completed anew each time an application for a WWCC is made.

This may engage the right to protection from discrimination but does not limit it due to two further amendments made by clause 98. New s 54(4A) enables the Regulator to consider an application that does not include evidence of completion of the training if the Regulator considers that the applicant has made arrangements to complete the training. This will enable a WWCC to be granted swiftly when required, such as when kinship care arrangements are made for a child. New s 54(3A) of the WS Act requires the Regulator to enable reasonable modifications to be made to the training requirement if the applicant has a disability that prevents them from completing the training.

I am therefore of the view that Division 4 of Part 3.2 of the Bill is compatible with the right to protection from discrimination under s 8 of the Charter.

Division 5 – Power to require production of information

Clause 99 inserts an offence into s 128 of the Worker Screening Act, providing that a person must not give information that is false or misleading to the Regulator in relation to an application for, or re-assessment of, a WWC check or in connection with an internal review under Part 3.4A.

Clause 101 inserts new ss 142A and 142B. Section 142A empowers the Regulator to request information and documents for the purpose of carrying out an NDIS check or WWC check, re-assessment of eligibility to hold such checks, and carrying out internal review under Parts 4.1 or 3.4A of the Worker Screening Act 2020. Under s 142A(7), a person who fails to comply with a notice for production without reasonable excuse can be penalised. Section 142A(8) provides protection against self-incrimination for a natural person by allowing that person to refuse or fail to provide information they are required to provide if doing so would incriminate them.

Section 142B provides that nothing in this Act entitles or requires a person to disclose information that is subject to legal professional privilege or client legal privilege and does not affect the law or practice relating to these privileges.

Section 143 (as inserted by Clause 102) protects a person who produces information that is authorised or required under s 142A from liability.

Freedom of expression

These provisions may engage the right to freedom of expression by limiting the kind of information that a person may impart, including through providing documents. However, to the extent that the right is engaged, any limitation imposed would fall within the internal limitations to the right in s 15(3), as reasonably necessary to respect the rights and reputation of other persons, or for the protection of public order. The prohibitions are necessary to ensure the accuracy of the information provided to the Regulator. Further, the restrictions are critical to ensuring the worker screening schemes can effectively assist in protecting children and persons with disability from harm. By reducing the risk that the Regulator’s decisions regarding a clearance will be based on false or misleading information, or that a person will provide a misleading clearance document in a work situation, the provision reduces the risk that an inappropriate person will be able to work with children or persons with a disability. Accordingly, I consider these provisions to be compatible with the right to freedom of expression under the Charter.

Division 8 – Internal review and further WWC category A applications

Division 8 of Part 3.2 of the Bill inserts new Part 3.4A into the Worker Screening Act to enable persons who are subject to various WWC exclusion and clearance decisions to apply for an internal review by the Regulator (new s 92A). In the case of a WWC category A exclusion or re-assessment, a person may make a further application to the Regulator (new s 92B). The internal review of a decision or further application must then be conducted by a person at the Regulator who did not make the original decision or to the extent practical was not substantially involved in the original decision, is in a position that is equal or more senior than the original decision maker and is suitably qualified or experienced to deal with the issues raised by the internal review or further application (new s 92D). In conducting an internal review, the Regulator may request advice from an independent expert advisory panel established by new Division 3A of Part 10 of the SSR Act. For the purposes of a further application made under new s 92B, that is by a person after receiving an WWC category A exclusion or re-assessment, the Regulator must request advice from an independent expert advisory panel (new s 92E).

For internal reviews the original decision must be confirmed unless the Regulator is satisfied that the applicant holding the WWC clearance would not pose an unjustifiable risk to the safety of children having regard to various matters, including that they are satisfied that a reasonable person would allow their child to have direct unsupervised contact with the applicant while the applicant was engaged in any type of child-related work. Ultimately, the internal reviewer within the Regulator may decide to confirm the decision to impose a WWC exclusion, revoke a WWC clearance, or withdraw the decision to give a WWC exclusion or revoke a WWC clearance. Notice of the decision must be given to the applicant, and where the outcome is adverse to them, the notice must include a statement of reasons.

Division 9 of Part 3.2 of the Bill contains consequential amendments to the Worker Screening Act. Clause 120 repeals Part 4.3 of the Worker Screening Act which provided a right of review to VCAT for various WWC clearance decisions, including the decision to give a WWC exclusion and the decision to revoke a WWC clearance. Accordingly, the only review pathway for these decisions will now be via the internal review process discussed above, rather than to VCAT.

Fair hearing

The removal of the right to apply to VCAT for review of WWC clearance decisions interferes with the right to fair hearing under s 24(1) of the Charter, which is concerned with the ability of a person affected by a decision to know the matters relevant to the decision and to have a reasonable opportunity to present their case and respond to adverse information.

While the opportunity to be heard by an independent tribunal has now been removed, the internal review and further application mechanisms do allow an applicant to provide further information they consider relevant (new s 92A(5)(c) and 92B(4)(d)), and the person conducting the internal review may also seek advice from an independent expert advisory panel in considering whether to confirm or withdraw the decision (new s 92E). For further applications made in relation to WWC category A exclusions, advice from an independent expert advisory panel must be sought. Further, where an internal review results in an outcome adverse to the applicant, a statement of reasons must be provided. This mitigates the impact on fair hearing rights to a material degree.

To the extent, however that fair hearing rights are limited, in that an applicant is not afforded a right to review before an independent tribunal, I am satisfied that the limits are reasonable and justified in the circumstances in accordance with s 7(2) of the Charter, in that the replacement of the VCAT review rights with the internal review pathway will ensure more consistent decision making that applies a child safety lens, consistent with the Rapid Review’s recommendations that reviews be conducted by persons with specialist expertise in child safety. It is also anticipated that this pathway will be more straightforward and accessible for applicants.

To the extent that fair hearing rights are limited, the limitation is demonstrably justified given the over-arching purpose is protection of children from harm and is also reasonably balanced by the range of safeguards ‘built in’ to the internal review model – namely:

• Members of the independent expert advisory panel will be appointed by the Minister based on their qualifications or experience. This ensures independence from the Regulator, as does the requirement for the Minister to appoint an independent Convenor of the expert panel.

• The protection of children hinges substantially on worker decisions being informed by specialist knowledge acquired through dedicated training, study or experience (e.g. in fields like child health and wellbeing and criminology). The Bill specifically requires that internal review decision-makers be suitably qualified or experienced to deal with the issues raised by the WWCC determination. In addition, the requirement to establish an independent expert advisory panel that can advise the Regulator on internal review matters will also promote the protective purpose of the child safety reforms, ensuring that decision-making is consistent and grounded on a sound, rational basis.

• The Bill’s requirements that there be structural separation between first-instance and review decisions, equivalence (at minimum) in seniority for review decisions, and more robust written notice requirements are also important procedural fairness safeguards.

Importantly, judicial review in the Supreme Court will remain an option for individuals affected by adverse WWCC decisions.

I therefore consider that new Divisions 8 and 9 of Part 3.2 of the Bill are compatible with the right to fair hearing under s 24 of the Charter.

Chapter 4 – Disability legislation amendments

Part 4.1 – Amendment of Disability Service Safeguards Act 2018

New regulatory scheme for unregistered disability workers and regulated social service workers or carers

Part 4.1 of the Bill includes key amendments that streamline and simplify the regulation of workers in the disability and social services sectors. Clause 150 renames the Disability Service Safeguards Act 2018 to the Disability and Social Services Worker Act 2018. In particular, clause 157 inserts a new Part 6 into the Disability Service Safeguards Act which covers matters previously covered by both Part 9 of the Disability Service Safeguards Act and Part 5 of the SSR Act, which is repealed by Part 4.3 of the Bill (noting that matters previously covered by Part 6 of the Disability Service Safeguards Act are moved to the SSR Act by clause 391). This is to ensure that unregistered disability workers and regulated social service workers and carers are regulated in a largely consistent manner by the Regulator.

Many of the provisions in clause 157 already existing, under Part 9 of the Disability Service Safeguards Act and Part 5 of the SSR Act, so their human rights impacts have been discussed in previous Statements of Compatibility. However, as the scope of the worker regulation scheme could be expanded via regulations to apply to a larger class of workers than is currently the case under the SSR Act, the impact on rights is restated or considered afresh as required below.

Preliminary assessments

New s 19 of the Disability Service Safeguards Act enables the Regulator to conduct a preliminary assessment to determine whether to investigate if a regulated social service worker or carer is engaging in or has engaged in various prescribed conduct, or conduct that causes serious harm or is reasonably likely to cause serious harm or persistent or repeated conduct that results in harm, to a regulated social service user or a person with the characteristics of a regulated social service user.

Investigations

Following the preliminary assessment, new s 20 of the Disability Service Safeguards Act provides that the Regulator may decide to investigate the matter, refer the matter to a regulatory entity, provide information or guidance to the worker or carer, issue a condition notice, make an interim prohibition order and investigate the matter, determine the worker or carer is a registered NDIS provider or person employed or engaged by a registered NDIS provider, or determine that the matter does not require further investigation or action.

New Division 4 of Part 6 of the Disability Service Safeguards Act provides for the investigation the Regulator may conduct following a preliminary assessment into the conduct of unregistered disability workers or a regulated social service worker or carer. Under new s 31, the Regulator is not bound by the rules of evidence in conducting an investigation but is bound by the rules of natural justice. Under new s 13 of the Disability Service Safeguards Act (inserted by clause 156 of the Bill) the Regulator may obtain and use a report from an expert (which may include a registered disability worker) to assist them in conducting an investigation and considering what further action to take.

At the completion of an investigation, an investigation report is completed (new s 39) and the Regulator may confirm recommend actions that the worker or carer must take to address the findings, refer the matter to a regulatory entity, provide information or guidance to the worker or carer, issue a condition notice, make a prohibition order in respect of that worker or carer, or determine not to take any further action (new s 40). The Regulator must give notice to the worker or carer of the outcome of an investigation and a copy of the Regulator’s report, or those parts that relate to the worker or carer (new s 41). The Regulator may also disclose the report to other entities such as the Australian Health Practitioner Regulation Agency in certain circumstances (new s 44).

Information gathering powers

The Bill includes several information gathering powers in a range of circumstances.

New s 16 of the Disability Service Safeguards Act provides that a regulated social service provider and its employees must provide the Regulator, an authorised officer or independent investigator with reasonable assistance and access to records and employees, as required.

New s 19(3)(b) of the Disability Service Safeguards Act gives the Regulator the power to request information from any person or body about the conduct of the unregistered disability worker or regulated social service worker or carer.

Information sharing

Under new s 17, the Regulator must report to the Chief Commissioner of Police if they become aware that an unregistered disability worker or a regulated social service worker or carer may be, or have been, involved in criminal conduct. New s 18 provides that the Regulator may obtain information from the Chief Commissioner of Police as to whether Victoria Police is investigating an unregistered disability worker or regulated social service worker or carer, and the result of that investigation, if the Regulator reasonably believes that the worker or carer is engaging or has engaged in conduct that may be the subject of a preliminary assessment or investigation.

New s 291E of the SSR Act also provides that the independent expert advisory panel can consider any document or information provided to the panel by the Regulator for the purpose of any requests for advice.

Referral of matters

New s 20(1)(a)(ii) of the Disability Services Safeguards Act provides that at the completion of a preliminary assessment, the Regulator may refer the matter to another regulatory entity, with s 25 setting this power out in full. New s 24 also provides that the Regulator must refer the matter to the NDIS Quality and Safeguards Commission if the carer or worker is a registered NDIS provider or is employed or engaged by a registered NDIS provider.

Notification to employer

New s 22 of the Disability Service Safeguards Act provides that a worker or carer’s employer is to be notified of a determination by the Regulator to conduct an investigation following a preliminary assessment, and new s 23 provides that the Regulator must notify a worker or carer’s employer of a determination after a preliminary assessment to provide information or guidance to the worker or carer.

A carer or worker’s employer may be notified of the final outcome of an investigation under new s 42(1). Any other person that had been notified that an investigation was to be carried out must be notified of the outcome (new s 42(2)). The Regulator may also provide a worker or carer’s employer with a copy of the investigation report under new s 42(4) in certain circumstances.

Privacy right

The scope of the right in s 13(a) of the Charter not to have a person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with is broad and protects persons from unjustified interference with their personal and social sphere.

The information gathering, information sharing and referral powers discussed above allow or require potentially sensitive and personal information to be shared with the Regulator, persons from whom expert assistance is sought or independent expert advisory panellists (where advice is sought), and with agencies such as Victoria Police. Notice of a preliminary assessment, investigation and provision of a copy of the investigation report must be provided to a worker or carer’s employer. These actions may constitute an interference with privacy rights under the Charter.

However, I consider that any such interference is lawful and not arbitrary. This is because the provision of, or sharing of, information would be pursuant to properly circumscribed legislation which is appropriately confined to facilitate the legitimate purpose of the Bill, being promoting the quality, safety and sustainability of the disability and regulated social services workforce and ultimately to protect the vulnerable users of these services. It is important that employers of these workers and carers are informed of the actions taken by the Regulator in respect of their employees, so that they can implement measures to ensure the safety of service users. As I discussed above, persons working in this highly regulated environment must necessarily have a lesser expectation of privacy in relation to their personal information so far as it is relevant to their employment in this context.

Further, safeguards have been included in the Bill, including new s 26 which makes it an offence to publish information relating to a preliminary assessment that would enable the identification of a disability service user or a regulated social service user who is affected by the conduct of the carer or worker, or a notifier or complainant in relation to the preliminary assessment. There are also carve outs that provide that disclosure of a report must not be made in circumstances where this would identify a child, young person or disability service user, regulated social service user or primary family carer to whom the services were provided, or their family member.

I therefore consider that the powers conferred on the Regulator in respect of preliminary assessments, investigations and the gathering and sharing of information and referral of matters in clause 157 of the Bill do not limit the right to privacy.

Freedom of Expression

The information-gathering powers of the Regulator to compel persons to provide information or assistance may also interfere with the right to freedom of expression, to the extent that the right extends to a right not to express or impart information. However, these powers are required to ensure the effective regulation and investigation of persons providing services to vulnerable people in the disability and regulated social services sectors. Accordingly, I am of the view that to the extent the right is limited, that limit is reasonably justified in the circumstances pursuant to s 7(2) of the Charter, in that such powers are necessary to facilitate the regulation of these sectors and the protection of vulnerable people. I am therefore satisfied that the information gathering provisions in clause 157 of the Bill are compatible with the right to freedom of expression.

Condition notices

New Division 5 of the Disability Service Safeguards Act provides for the Regulator to issue condition notices to an unregistered disability worker or a regulated social service worker or carer after conducting a preliminary investigation or at the completion of an investigation. New s 45(5) provides that the Regulator may consult the provider on the proposed conditions, where the worker or carer is employed or engaged by a registered disability service provider or regulated social service provider. New s 45A sets out the conditions that can be imposed on a worker or carer, which include undertaking a period of supervised practice, further training, refraining from or doing something in relation to their practice, or to practice in a certain way or any other appropriate condition.

New s 45C provides that the condition notice is to be served on the carer or worker. A copy of the condition notice must also be given to their employer (new s 45D). New s 45F provides that details of the condition notice for an unregistered disability worker are to be published in the Government Gazette including the worker’s name and the conditions imposed upon them, while new s 45G provides that the Register of Prohibition Orders must be updated to include details of the condition notice. Condition notices may be varied upon application by the person under the notice under new s 45H, and any variations must also be published and recorded in the Register of Prohibition Orders.

Condition notices can be revoked following an application under new s 45J and, if granted, the revocation will be published (if it relates to a disability worker), the notice provided to both the carer or worker and their employer, and the relevant Register of Prohibition Orders updated under new s 45K. Condition notices will also be subject to the new internal review pathway set out in new Division 8 of the Disability Services Safeguards Act.

Privacy and reputation

The publication of condition notices and their variation and revocation in the Government Gazette and in the Prohibition Order Register, and their provision to employers and other entities, engages the right to privacy and reputation, given it would reveal the names of workers and carers who have been subject to preliminary assessment or investigation by the Regulator, and details of the conditions imposed upon them.

However, I consider that the right to privacy and reputation is not limited, because the interferences would be pursuant to law, and are proportionate to the legitimate purpose of ensuring proper regulation of unregistered disability workers and regulated social services carers and workers in order to protect the vulnerable users of these services. Conditions are only imposed on workers or carers when they are considered necessary to prevent a risk to disability service users or regulated social services users, or to address a failure to comply with an approved code of conduct (new s 45(3)(a) and (b)), and it is necessary that employers of carers and workers are advised of the imposition of condition notices to ensure they can be properly implemented and enforced and that service users are protected.

I am therefore satisfied that the right to privacy and reputation is not limited by new Division 5 of the Disability Service Safeguards Act.

Right to freedom from forced work

The compulsion to undertake an activity or to ‘do’ something as required by a condition notice may interfere with the right to freedom from forced work, specifically the prohibition on compulsory labour in s 11(2) of the Charter. I am of the view, however, that the right is not engaged as any work required by a condition would fall within the scope of the exception to the prohibition in s 11(3) of the Charter, namely work or service that ‘forms part of normal civil obligations,’ as the conditions are imposed on workers or carers who are engaged in the regulated disability and social services sectors and have voluntarily assumed associated responsibilities and obligations. Additionally, the condition notices serve an important preventative purpose, being to prevent a risk to disability service and regulated social service users.

Fair hearing

The concept of a ‘civil proceeding’ in s 24(1) is not limited to judicial decision makers, but may also, adopting a broad reading of s 24(1), encompass the decision-making procedures of other administrative decision-makers. If a broad interpretation is adopted and it is understood that the fair hearing right is engaged by the decision of the Regulator to issue a condition notice to a worker or carer, I am satisfied that this right would not be limited because there are various procedural fairness safeguards provided in the Bill, including notice requirements to the carer or worker, the right to apply for a variation or revocation of the condition notice, and the right to apply for an internal review by the Regulator (new Division 8).

Interim prohibition orders and prohibition orders

New Division 6 of the Disability Service Safeguards Act empowers the Regulator to impose an interim prohibition order on an unregistered disability worker or regulated social services carer or worker following a preliminary assessment or during an investigation, which prohibits the worker or carer from providing relevant disability services or regulated social services. New Division 7 then empowers the Regulator to impose a prohibition order upon completion of an investigation. These divisions replace parts of Part 9 of the Disability Service Safeguards Act and Part 5 of the SSR Act.

There are similar notice and publication requirements for both interim prohibition orders and prohibition orders as with condition notices, with publication in the Government Gazette where the order applies to a disability worker, and in the Prohibition Order Register, and a copy of the order must be provided to the worker or carer’s employers and may be given to past employers and other entities such as the Health Complaints Commissioner where relevant.

An interim prohibition or prohibition order may be varied or revoked upon an application by the carer or worker that is subject to it.

Prohibition orders will be issued after a show cause process, whereby the carer or worker will be given notice of the proposed order and invited to provide a written or oral submission to the Regulator (new s 47 of the Disability Service Safeguards Act). The Regulator must not make a prohibition order against a worker or carer unless they reasonably believe the worker or carer poses an unjustifiable risk to a disability or regulated social service user and various factors are outlined in the Bill that will guide them in considering whether the worker or carer poses such a risk (new s 47A). These include whether a reasonable person would allow a disability or regulated social service user to have direct unsupervised contact with the worker or carer, and whether it is in the public interest that the worker or carer continues to be able to provide disability or regulated social services.

Fair hearing

Clauses 277 and 387 of the Bill repeal parts of the Disability Services Safeguards Act and SSR Act that provided that certain decisions relating to prohibition orders or interim prohibition orders were reviewable by VCAT. New Division 6 contains regular periodic review requirements for interim prohibition orders by the Regulator (new s 46H) which also allows the carer or worker to make written submissions to the Regulator and receive reasons for the decision if the interim prohibition order is confirmed. Further, new Division 8 provides a right of internal review to the Regulator for both an interim prohibition order and a prohibition order (see new s 48) during which process the Regulator may obtain advice from an independent expert advisory panel (see new s 48D). New s 48G provides that the Regulator must provide notice of the outcome of the internal review to the applicant and provide a statement of reasons in the event of an outcome adverse to the applicant. Finally, the worker or carer would also have a right of judicial review of a decision to issue an interim prohibition order or prohibition order.

As discussed above in respect of condition notices, if a broad interpretation of s 24 of the Charter is adopted and it is considered that the fair hearing right is engaged by the decision of the Regulator to issue an interim prohibition order or prohibition order, this right would, in my view, not be limited because there are various procedural fairness safeguards provided in the Bill, including: notice requirements to the carer or worker; the right to apply for a variation or revocation of the order; the show cause process for prohibition orders outlined in new s 47 which provides the carer or worker with the opportunity to make submissions; the right to make submissions to the Regulator at any time in relation to an interim prohibition order, which new s 46H requires must be considered at the next review, and; the right of internal review under new Division 8 (which may involve advice from an independent expert advisory panel).

As such, I am of the view that the right to a fair hearing is not limited by new Divisions 6 and 7 inserted into the Disability Service Safeguards Act by clause 157 of the Bill. In the event that it is considered that this constitutes a limit on the right, for instance by not providing for VCAT review of a decision to make an interim prohibition order or prohibition order, I am satisfied that any such limit is reasonable and justified in the circumstances where internal review is available. The threshold for imposition of an interim prohibition order or prohibition order is quite high – an unjustifiable risk to disability or social service users – and is necessary for the regulation of the disability and social services sectors, and the protection of people that use them. I draw on my above reasoning that effective protection of disability service users hinges on decisions being informed by specialist knowledge acquired through dedicated training, study or experience.

Privacy right

I am also satisfied that the publication and notice provisions pertaining to interim prohibition orders and prohibition orders do not limit the right to privacy for similar reasons as above – they are lawful and not arbitrary in that they are necessary to ensure the orders are complied with and vulnerable disability and regulated social services users are protected. Insofar as the orders interfere with the right to privacy in that they prevent a person from working in their chosen field, I also consider there to be no limit on the right for the same reasons.

Double punishment

I am also of the view that interim prohibition orders or prohibition orders do not limit the right not to be tried or punished more than once. While these orders may be applied to persons who have previously been found guilty of prescribed criminal offences, disciplinary or regulatory action such as this does not fall within the scope of the right, given they are not criminal sanctions. Interim prohibition orders and prohibition orders, rather than being sanctions designed to punish, are effectively protective tools which are aimed at preventing harm to disability and regulated social service users by preventing workers or carers who have engaged in harmful or even criminal conduct in the past, from providing these services. They are made on a criteria directed at avoiding risk to disability and regulated social service users. Accordingly, I do not consider that these orders constitute punishment within the meaning of this right.

‘Reasonable excuse’ offence provisions

Presumption of innocence (section 25(1))

Clause 157 of this Bill introduces two offence provisions that contain ‘reverse onus’ elements (new ss 26 and 43 of the Disability Service Safeguards Act). The right to presumption of innocence in s 25(1) of the Charter is relevant to provisions which shift the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that he or she is not guilty of an offence. The identified offences all require the proof of a ‘reasonable excuse’.

As these offences are summary offences, s 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on the ‘lawful authority or excuse’ defence to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse. In other words, the provision imposes an evidential onus on an accused when seeking to rely on the defence. Case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidential onus falls short of imposing any burden of persuasion on an accused. Once the accused has pointed to evidence of a reasonable excuse, the burden shifts back to the prosecution who must prove the elements of the offence. Accordingly, I do not consider that the ‘reasonable excuse’ offence provisions in clause 157 limit the right to be presumed innocent in s 25(1) of the Charter.

Registers of Prohibition Orders

Clause 291 of the Bill substitutes Division 4 of Part 15 of the Disability Service Safeguards Act with a new Division 4 (Registers of Prohibition Orders). Subdivision 1 relates to disability services, subdivision 2 relates to regulated social services and subdivision 3 concerns the update of personal information.

Under subdivision 1 of new Division 4, the amendments remake existing s 251 and provide that the Regulator, rather than the Commission, has responsibility for maintaining the Register of Prohibition Orders – Disability Services. New s 251 provides that the Regulator must keep a public register of persons (other than registered disability workers) who are issued with a prohibition order, an interim prohibition order or a condition notice in relation to the provision of disability services. The section outlines the information that must be included in the Register of Prohibition Orders – Disability Services and includes the name of the person, the type of order or notice, details of the disability services that the worker is prohibited from providing or which are subject to conditions, the period for which the order or notice is in force and the reasons for the decision to make the order or issue the notice.

New s 251A provides that the Regulator must ensure that the Register of Prohibition Orders – Disability Services is accessible on the Regulator’s website, may be inspected at the office of the Regulator and that a person may obtain a copy of an extract from this Register without charge. Consequently, this Register will continue to be publicly available.

Subdivision 2 creates the Register of Prohibition Orders – Regulated Social Services. This replaces the worker and carer exclusion scheme (WCES) database established under s 83 of the Social Services Regulation Act 2021. Under new s 251B the Regulator must keep a register of all persons issued with a prohibition order, interim prohibition order or a condition notice in relation to the provision of a regulated social service. This register must include certain details against the name of the person issued with the order or notice, namely, the type of order or notice issued, details of the regulated social services that the person is prohibited or excluded from providing or which are subject to conditions, the period and the reasons for the decision to make the order or issue the notice. The Register of Prohibition Orders – Regulated Social Services will not be publicly available.

New s 251C requires that, before employing or engaging a person as a regulated social service worker or carer, a regulated social service provider must request the Regulator disclose certain information about the person. The Regulator may provide any information recorded on the Register of Prohibition Orders – Regulated Social Services to a regulated social service provider for the purpose of responding to the request.

New s 251D in subdivision 3 inserts a requirement that a person who is subject to a prohibition order, an interim prohibition order or a condition notice, must notify the Regulator, as soon as practicable, of any change to their name or place of residence.

Privacy and reputation

The right to privacy and reputation is relevant to these provisions. Inclusion of a person’s personal information on these Registers may interfere with a person’s privacy and reputation, to the extent that it provides they have been subject to an order or notice in relation to the provision of disability services or the provision of a regulated social service and the details of excludable conduct.

In respect of the Register of Prohibition Orders – Disability Services, this Register is already publicly available. It records a range of personal information and will engage the right to privacy and reputation under the Charter. The purpose of this Register is to make relevant information about disability workers available to the public, particularly disability service users who may directly engage a disability worker, which serves an important purpose of promoting transparency and assisting users of disability services to make informed decisions. To the extent that the right to privacy and reputation is relevant to the information required to be listed on this Register, I believe that any interference with that right is lawful and not arbitrary. The particulars which are to be listed on this Register are clearly set out, and their listing is a known condition of any person seeking to work as a disability worker. The collection and publication of information on this Register is necessary for and tailored to ensuring compliance with the regulatory scheme and promoting transparency and public safety, and accordingly does not constitute an arbitrary interference with privacy or an unlawful attack on a person’s reputation.

In respect of the Register of Prohibition Orders – Regulated Social Services, in addition to the observations above, any interference will be authorised under legislation and is subject to appropriate safeguards, including that the Register be kept private and information on it only shared with regulated social service providers upon their request in relation to a particular person.

Further, the Registers must be kept in a way that ensures they are up to date and accurate. I therefore consider that these clauses are compatible with the right to privacy and reputation.

Information sharing

Clause 297 amends s 257 of the Disability Service Safeguards Act to expand the scope of the provision to capture ‘regulated social services workers or carers’ in addition to unregistered disability workers. This section provides that the Regulator may request information from a worker screening unit for the purposes of determining whether to make an interim prohibition order or a prohibition order and may give the worker screening unit any information concerning the worker that is necessary to conduct a worker screening check on the worker. I consider this amendment compatible with the right to privacy for the reasons above, relating to the necessity of the Regulator being able to access, and make decisions in regard to, all relevant risk information.

Amendments to certain offences in Division 1 of Part 16 of the Disability Service Safeguards Act

Clauses 299 to 306 of the Bill amend various offence provisions in Division 1 of Part 16 of the Disability Service Safeguards Act. The amendments add a ‘without reasonable excuse’ exception to a number of offences in that Division.

Right to be presumed innocent

As discussed above, s 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right in s 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

The amendments in clauses 299 to 306 of the Bill either amend existing offence provisions or add new offence provisions. These amendments add or include a ‘without reasonable excuse’ exception in a number of offences.

For the same reasons as discussed above, I do not consider that an evidential onus such as these provisions limits the right to be presumed innocent, in accordance with the case law on this question.

New sections 266A to 266G

Clause 304 of the Bill introduces new ss 266A to 266G into the Disability Service Safeguards Act. These sections include an offence for where a person applies for employment or engagement providing a disability service or a regulated social service if prohibited (new s 266A), an offence for where a person applies for employment if they are under investigation (new s 266B), and an offence to apply for employment or engagement without disclosing details of a condition notice, without reasonable excuse (new s 266C). New s 266D adds an offence for a disability worker or regulated social service worker or carer who is given an interim prohibition order, condition notice or notice of investigation under the Disability Service Safeguards Act for failing to disclose certain details to the Regulator within a specified time, without reasonable excuse. Clause 304 of the Bill also adds offences of failing to notify an employer of an investigation (new s 266E) or a condition notice (new s 266F) for unregistered disability workers or a regulated social service worker or carer, without reasonable excuse. New s 266G adds an offence for failing to notify an employer of a prohibition or exclusion.

These offence provisions can be construed as prohibiting conduct that is protected by the Charter, namely freedom of expression and freedom not to impart information (s 15) and the right to privacy (s 13). As stated above, the right to privacy has been interpreted to extend to matters relating to the right to seek employment, and may be interfered with where employment restrictions impart sufficiently upon the personal relationships of the individual and otherwise upon the person’s capacity to experience a private life. The requirement to notify an employer of an investigation may also have follow-on implications if the person is treated adversely on the basis of this information. Nevertheless, I consider that these prohibitions are necessary to ensure the implementation of the reforms and increased protection for disability service and regulated social service users. They give necessary effect to the prohibition and exclusion schemes and criminalise behaviour that is intended to undermine the efficacy of these protective schemes and associated investigations.

Criminal liability of officers of a body corporate

Clause 306 of the Bill substitutes ss 268 to 272 of the Disability Service Safeguards Act. New s 272 provides that if a body corporate commits certain specified offences, then an officer of the body corporate also commits an offence against the provision if the officer authorised or permitted the commission of the offence by the body corporate or was knowingly concerned in any way in the commission of the offence by the body corporate. The offences covered by this provision are listed in new s 272(2) and include:

• New s 26(1) (Offence to publish identifying information);

• Section 258(3) and (4) (Restrictions on use or protected titles);

• Section 259(4) and (5) (Claims about type of registration or endorsement or qualification to hold type of registration or endorsement);

• Section 260(3) (Claims about division of the Register);

• Section 261 (Restriction to provide prescribed disability service);

• Section 262 (Directing or inciting unprofessional conduct or professional misconduct);

• Section 267(2) (Advertising offences);

• New s 268 (Regulated social service provider employing or engaging a person without a Register check);

• New s 269(1),(2), (3) and (4) (Regulated social service provider employing or engaging a prohibited person);

• New s 270 (Registered disability provider employing or engaging a prohibited person).

Right to be presumed innocent

New s 272 is relevant to the presumption of innocence as it may operate to deem as ‘fact’ that an individual has committed an offence based on the actions of the body corporate. New s 272(3) provides that an officer may rely on a defence available to the body corporate but bears the same onus of proof to establish the defence as the body corporate.

Further, new s 272(3) provides that the officer, in relying on the same defence as that is available to the body corporate, bears the same burden of proof that the body corporate would bear in order to establish a relevant defence.

I consider that new s 272 of the Disability Service Safeguards Act does not limit the right to the presumption of innocence. Firstly, new s 272 requires the prosecution to prove the accessorial elements of the offence – that is that the officer authorised or permitted the offence or was knowingly concerned in the commission of the offence by the body corporate. Further, the provision only places an evidential burden on an accused to establish a defence, and the prosecution is still required to prove the main elements of the offence. Finally, the evidence required to establish a relevant defence will likely be peculiarly within the personal knowledge of the officer and would be difficult for the prosecution to establish.

In my view, it is appropriate to extend the criminal liability of bodies corporate, and to make officers liable for the conduct of the body corporate and its employees and agents, in order to ensure proper compliance with the regulatory regime. A person who elects to undertake a position as an officer of a body corporate accepts that they will be subject to certain requirements and duties, including a duty to ensure that the body corporate complies with its legal obligations, and does not commit offences. Affected persons should be well aware of the regulatory requirements and, as such, should have the necessary processes and systems in place to effectively meet these requirements and not incur accessorial liability. Finally, the offences are not punishable by a term of imprisonment.

Should the right to the presumption of innocence in fact be limited by these provisions, I am of the view that any limitation is reasonable and demonstrably justified, in that it is a proportionate measure to the legitimate purpose of the offences, which are to ensure the compliance of bodies corporate with the regulatory regime and to protect people accessing disability services and regulated social services. Courts in other jurisdictions have held that the presumption of innocence may be subject to reasonable limits in the context of regulatory compliance, particularly where regulatory offences may cause harm to the public.

Compensation for acts done in exercise of powers under the Disability Service Safeguards Act

Clause 316 of the Bill proposes to repeal s 283 of the Disability Service Safeguards Act, which allows compensation to be claimed from the Commission if loss or expense is incurred because of a power exercised or purported to be exercised under the Disability Service Safeguards Act by an authorised officer. The provision also allowed compensation in other circumstances, such as a result of a person complying with the requirements of the Act, where compensation is ordered to be paid in a proceeding in a court with jurisdiction for the recovery of the amount of compensation claimed, and where the court orders compensation to be paid if it is satisfied that it is fair to do so in the circumstances in a particular case. This is relevant to property rights, as it may affect a person’s right to be compensated by the Commission in circumstances prescribed by the Act.

New Part 19 contains a proposed provision that allows persons who were entitled to compensation from the Commission to claim that compensation from the Regulator (new s 298 of Part 19 in clause 319). This preserves the rights of any person with a claim under s 283 despite its repeal.

As s 283 is repealed, compensation will no longer be provided for under the Disability Service Safeguards Act. This may engage the right to property, insofar as a cause of action may be considered ‘property’. A deprivation in this context is unlikely, as a person will retain their right to seek a remedy for any loss or damage at common law.

Liability for acts done in exercise of powers under the Disability Service Safeguards Act

Similarly, clause 317 proposes to amend s 285 to transfer protection of a ‘protected person’ from personal liability for acts done under the Disability Service Safeguards Act from the Commissioner to the Regulator. It also grants similar protection from liability to a person appointed as the acting Regulator under the Social Services Regulation Act, an Associate Regulator or a person appointed as an acting Associate Regulator under the Social Services Regulation Act, and a member of a panel. Under this section, a person is not personally liable for anything done or omitted to be done in good faith in the exercise of a power or the performance of a function under the Disability Service Safeguards Act or in the reasonable belief that the act or omission was pursuant to a power or a function under the Disability Service Safeguards Act.

This may engage the right to property, insofar as a cause of action may be considered ‘property’. The Bill transfers protection from one statutory body to another, but in doing so it removes the immunity for staff, authorised officers and investigative officers. Any liability resulting from an act or omission of a protected person – now meaning the Regulator, an Associate Regulator or a person appointed as an acting Associate Regulator under the Social Services Regulations Act, and a member of a panel – attaches instead to the State, meaning that a plaintiff is not deprived of access to the court to seek a remedy for any loss or damage.

As for the substantive effect of the immunity, any deprivation of a claim for personal liability is in accordance with law and not arbitrary, as it is reasonably necessary to achieve the important objective of ensuring that the Regulator can exercise their statutory functions and powers in good faith without exposure to the prospect of personal liability. These immunity provisions are commonly afforded to Regulators in order to maintain the effectiveness of its protective functions without fear of tort liability. Without at least some degree of protection from litigation, a Regulator may be reluctant to exercise powers or conduct duties essential to upholding the protective aim of the scheme, notwithstanding their statutory authorisation to do so. The immunities will ultimately facilitate the proper exercise of powers which are directed at safeguarding the rights of disability and regulated social service users.

The removal of staff, authorised officers and investigative officers is in accordance with government policy, noting that for many years Victorian Public Service (VPS) agreements have provided for VPS employees to be indemnified for legal costs in these circumstances. The current VPS agreement (2024) provides that where legal proceedings are initiated against an Employee as a direct consequence of the Employee legitimately and properly performing their duties, the Employer will not unreasonably withhold agreement to meet the Employee’s reasonable legal costs relating to the defence of such proceedings. Although the amendment removes the immunity, it therefore does not deprive a plaintiff access to the court to seek a remedy for any loss or damage alleged to have been caused by staff, authorised officers and investigative officers employed by the Regulator.

New Part 19 (Transitional and savings provisions)

Clause 319 inserts a proposed Part 19, which contains new transitional and savings provisions into the Disability Service Safeguards Act to transfer the powers of the Board, Commissioner and Commission to the Regulator.

Removal of the roles of the Disability Registration Board, Victorian Disability Worker Commission and Victorian Disability Worker Commissioner

Part 19 includes proposed ss 293, 294 and 296, which remove the Disability Registration Board, Victorian Disability Worker Commission and Victorian Disability Worker Commissioner, respectively. These roles will be dissolved, and their functions will be absorbed by the Regulator to provide a flexible scheme that is responsive to risk and prioritises service user safety.

As I discussed above, the removal of these offices may engage the right to equality under s 8(3) of the Charter for people with disability, to the degree that it could affect the protection against discrimination afforded to people.

I consider that the removal of these bodies will not limit the right to equality under s 8(3) of the Charter, as the Regulator will absorb functions to conduct investigations and receive complaints provided under the Disability Service Safeguards Act.

As such, there will be no reduction in safeguards for people with disability who continue to use disability workers. Various new sections inserted by the Bill will empower the Regulator to receive complaints and conduct investigations about registered and unregistered disability workers.

Disclosure of information held by the former bodies transferred to the Regulator

Sections 293(2), 294(2), and 296(2) of new Part 19 propose to transfer all information and records from the Board, the Commission, and the Commissioner, respectively, to the Regulator. Further, Part 19 includes a number of provisions which empower the Regulator to continue the functions of the former bodies before the commencement of the Bill:

• New s 305 allows the Regulator to be able to deal with notifications in the case of an unregistered disability worker or registered disability worker;

• New s 306 allows the Regulator to have all the functions of the Board, Commission and Commissioner in relation to a complaint made but not finally determined under Parts 3, 4, 5 or 6 of the old Act;

• New s 307 will allow the Regulator to continue and complete any investigation under Part 9 that was commenced but not completed by the Disability Worker Commission by the repeal day, and s 307(3)(b) will further allow the Regulator to have regard to any evidence, submission or report obtained by the Commission in relation to an investigation under the old Act;

• New sections 308, 309 and 310 will allow the Regulator to complete the processes in relation to the making, variation or revocation of any interim prohibition order or prohibition order that was commenced but not been determined by the Victorian Disability Worker Commissioner before the repeal of Part 9.

New sections 318 and 319 will also allow the Regulator to continue and complete under the Disability Service Safeguards Act any assessment or investigation that was commenced under the old Social Services Regulation Act and before the commencement of the Bill.

While these provisions may interfere with the right to privacy to the extent that they allow information, evidence or reports to be shared for the purpose of carrying out pending investigations and complaints, the interference will be neither unlawful nor arbitrary. This is because these amendments are carefully confined to their statutory purpose, to enable the transfer of information to the Regulator to carry out certain functions currently administered by the Board, Commission, and Commissioner. Therefore, the proposed disclosure of information does not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill, such that it is reasonable and proportionate to the Bill’s important objectives. Further, existing privacy protections will apply in the Disability Service Safeguards Act concerning further use or disclosure of this information.

Internal review

Clause 319 inserts a new transitional provision – s 320(5)(e) – which provides that when the Panel issues a WCES interim exclusion after the commencement day of the Bill, due to a matter having been referred to the Panel before the commencement day, the Panel is required to state in its notice that a person may apply to the Regulator for an internal review of the decision to issue the interim exclusion as if it were an interim prohibition order under the Disability Service Safeguards Act (substituting applications for review by VCAT). As discussed above in relation to Divisions 8 and 10 of Part 3.2 of the Bill, I consider that a transitional provision allowing for internal review of interim exclusions is compatible with the right to fair hearing under s 24 of the Charter, as I am of the view that, in order to achieve the important safety objectives of this Bill, proceedings that are on foot at the commencement of this Bill should not be treated differently.

Transfer of assets, liabilities, debts, etc. held by the former bodies transferred to the Regulator

New sections 293, 294, and 296 will also transfer all rights, property, assets, debts, liabilities and obligations of the Board, Commission, and Commissioner to the Regulator. Similarly, the sections will also substitute the Regulator as a party to any proceedings, arrangements, memoranda of understanding or contracts in which the former bodies were parties to. These amendments may be relevant to the property rights of a natural person who holds an interest in the property, liability, debt or obligations of the former bodies being transferred to a new body.

I consider that the right to property is not limited by this amendment as the person is not being deprived of their property interest. Rather, the property, rights, assets, debts, liabilities and obligations are being transferred from one statutory office to another without altering the substantive content of that property right. Accordingly, the provisions to transfer the assets, debts, liabilities and obligations of the Commissioner to the Regulator do not limit this Charter right.

Right to a fair hearing

For the purposes of conducting a review under s 308(2), new s 308(3) in clause 319 requires the Regulator to invite the person who is subject to the interim prohibition order to make submissions about the order to the Regulator.

In my view, this requirement promotes the right to a fair hearing, as the opportunity to provide submissions affords procedural fairness to a person who is subject to a potential interim prohibition order, and can allow them to refute any allegations made against them.

Part 4.2 – Carers Register

Clause 324 adds Division 3A of Part 15 of the Disability Services Safeguards Act which provides for the Carers Register. New s 250A provides that the Regulator must keep the Carers Register that includes the names of specified out of home carers who are employed or engaged by an out of home care service or a secure welfare service. New s 250A(2) provides that this register is not open for inspection by the public.

New s 250B outlines the other information that must be included in the Carers Register, including the person’s address, date of birth, the name of each out of home care service and secure welfare service provider employing or engaging the person the date of that employment or engagement and details of any investigation, regulatory action or orders imposed by the Regulator in relation to the person. New s 250C enables the Regulator to disclose information in the Carers Register to a regulatory entity, an out of home care service, a secure welfare service and any other prescribed person or entity. Such disclosure can be made if the Regulator considers it necessary to do so to promote the safe delivery of services or reduce regulatory burden.

New s 250D will require an out of home care service and a secure welfare service to provide information to the Regulator about the out of home carer employed or engaged by that service as well as prescribed information. Failure to comply with this requirement to provide the Regulator with information without a reasonable excuse carries a penalty.

Privacy right

The right to privacy and reputation is relevant to these provisions. Inclusion of a person’s personal information on the Carers Register may interfere with a person’s privacy.

In addition to the observations above in respect of the other registers, any interference in this case will be authorised under legislation and is subject to appropriate safeguards, including that the Register be kept private and information on it only disclosed to certain other entities or persons where it is necessary to promote the safe delivery of services and reduce regulatory burden. Further, the Registers must be kept in a way that ensures they are up to date and accurate.

Part 4.3 – Amendment of the SSR Act

Part 4.3 of the Bill amends the SSR Act to:

•   provide for the investigation and resolution of complaints relating to social services, regulated disability services, disability workers and disability students (clause 329);

•   expand the objects of the Social Services Regulator (Regulator) to include (clause 331):

• make registered social service providers accountable to persons accessing those social services;

• promote the quality, safety and sustainability of the disability workforce by strengthening the safeguards for those persons with a disability who access disability services provided by disability workers; and

• provide a process for complaints for persons with a disability in relation to disability services provided by disability workers; and

•   provide for further functions for the Regulator for the purposes of dealing with complaints and accountability investigations (clause 334).

Part 4.3, Division 1 – Complaints about social and disability services

Application of investigation and monitoring powers, and information disclosure powers, to accountability investigations

Clauses 345, 346 and 350 to 355 expand the application of the existing investigation and monitoring powers of the Regulator, authorised officers and independent investigators, provided for in Part 6 of the SSR Act, to the conduct of accountability investigations, investigations under the Disability Services Safeguards Act and regulating and monitoring compliance with that Act. Accountability investigations include those undertaken by the Regulator into complaints, those initiated by the Regulator in relation to regulated disability services, those into matters referred to the Regulator by the Minister, and follow up investigations. These expanded powers are designed to facilitate the operation of the expanded complaints and investigation functions of the Regulator.

Clause 347 of the Bill inserts new ss 109A and 109B, which provide for, respectively, powers in relation to documents produced in accordance with a notice issued under s 109 of the SSR Act and the Regulator to require a person to give evidence or answer questions on oath or affirmation.

Clauses 371 and 377 expand the scope of existing information disclosure powers, provided for in Part 8 of the SSR Act, to include complaints made under new Part 9A, including accountability investigations and matters that could form the basis of issuing a condition notice or prohibition order to a disability worker or disability student.

Right to privacy and freedom of expression

Each of the clauses listed in the above paragraphs engage the right to privacy in s 13(a) of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy, family, home or correspondence. While the powers, as expanded by the clauses listed above, may involve some interference with a person’s privacy and home, these powers are necessary to ensure the Regulator is able to conduct an effective investigation into complaints, systemic or individual issues of abuse or neglect of people with disability, investigations referred by the Minister, or follow-up investigations. The powers are also subject to various safeguards such as requiring consent (e.g., s 113 of the SSR Act, amended by clause 351), and not abrogating legal professional privilege, client legal privilege or the protection against self-incrimination (sections 123 and 124 of the SSR Act, amended by clauses 358 and 359). Further, the personal information of service users will continue to be subject to the protections afforded under the Privacy and Data Protection Act 2014 (PDP Act) and the Health Records Act 2001. Accordingly, I consider that any interference with privacy is neither unlawful nor arbitrary. Finally, the Regulator (as a public authority) would be required to act compatibly with the right to privacy in s 13 of the Charter.

Although the entry powers, as expanded by clauses 350, 351 and 352, involve some interference with the privacy of the residents and occupiers of premises, I consider that the interference is compatible with the right to privacy in s 13(a) of the Charter because it is in accordance with law (as detailed in the below descriptions of the relevant clauses) and proportionate to the legitimate aim of ensuring that the Regulator is able to effectively fulfil its complaints and investigation functions:

• clause 350 expands the power under s 112 of the SSR Act to provide that an authorised officer may enter premises without a warrant:

• to investigate a contravention of this Act or the Disability Service Safeguards Act;

• for the purposes of conducting an accountability investigation, however, residential premises are excluded; and

• clause 351 expands the power under s 113 of the SSR Act to provide that an authorised officer or independent investigator may enter residential premises without a warrant for the purposes of:

• monitoring compliance with this Act or the Disability Service Safeguards Act or investigating a possible contravention of either Act; or

• conducting an accountability investigation however, the occupier’s consent is required.

By compelling a person to impart information, clauses 345, 346, 355, 371 and 377 also engage the right to freedom of expression in s 15(2) of the Charter. However, I consider any interference on the right to freedom of expression to come within the internal limitation at 15(3), in that it is reasonably necessary to ensure the Regulator, authorised officers and independent investigators can conduct effective accountability investigations, to protect the rights of others.

Property rights

The expanded seizure powers under a search warrant, provided for in clause 354 which authorises the seizure of any document or thing not named or described in the warrant if relevant to an accountability investigation, may engage property rights under s 20 of the Charter. Similarly, the expanded power of authorised officers to seize any document or thing if they believe on reasonable grounds that the seized document or thing is relevant to an accountability investigation, provided for in clause 355 may also engage s 20.

However, the provisions empowering the removal of documents or things do not limit property rights, as any interference with property through such removal would be undertaken in accordance with the provisions of the Bill, which are accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct. In addition, any deprivation of property is reasonably necessary to achieve the important objective of protecting the rights of disability and social service users.

For the same reasons, the expanded scope of the Regulator’s, authorised officer’s or independent investigator’s power to obtain information, documents and evidence for the purposes of regulation of disability workers and regulated social service workers and carers under the Disability Service Safeguards Act, conducting an accountability investigation or monitoring compliance with a provision under the Disability Service Safeguards Act, provided for in clause 346 , and the expanded powers to retain documents under new s 109A, inserted by clause 347 do not limit s 20 of the Charter.

Complaints and accountability investigations: new Part 9A of the SSR Act

Clause 391 inserts into the SSR Act new Part 9A, which provides for:

• an independent and accessible process for dealing with complaints about the provision of services by registered and regulated disability service providers and specified social service providers, and the conduct of disability workers and disability students – Division 1 of new Part 9A;

• initiated investigations – Division 2;

• referral investigations – Division 3;

• following up on investigations – Division 4;

• conduct of accountability investigations – Division 5;

• protections relating to complaints and investigations – Division 6; and

• reporting requirements – Division 7.

Rights to privacy and freedom of expression

The following provisions of new Part 9A engage the rights to privacy and freedom of expression:

• new s 283E(5) requires a person who complains to the Regulator to give their name and any other information relating to their identity that the Regulator may require, however, the Regulator may keep the information confidential (subject to new s 283E(6)) and the Regulator may still deal with a complaint made by a person who has not provided the required information, if the Regulator is satisfied that the complaint requires investigation (new s 283E(7));

• in respect of referral investigations, although the Regulator must publish details of any referral investigation on the Regulator’s Internet site, the Minister may require the Regulator not to publish identifying details of any person (new s 283ZH);

• in respect of follow-up investigations, under new s 283ZP, the Regulator may give notice in writing to the service provider, requiring the service provider to report in writing about any action taken to comply with a notice to take action; and

• in respect of accountability investigations:

• if the Regulator decides not to conduct a hearing in an accountability investigation, under new s 283ZX, the Regulator may take oral or written submissions, keep a record of all submissions and decisions made, and send for persons, documents or other things;

• if the Regulator decides to conduct a hearing in an accountability investigation, the Regulator may require a person by written notice to produce a specified document or thing, or to attend the hearing (new s 283ZZ); and

• new s 283ZV provides for principles applying to all accountability investigations, including that the Regulator is bound by the rules of natural justice; and that, before making a decision affecting a person, the Regulator must give the person an opportunity to make submissions to the Regulator about the decision.

While the above provisions engage the right to privacy, any interference is neither unlawful nor arbitrary and the provisions are therefore compatible with the right to privacy in s 13(a) of the Charter. In addition to the protections listed above, privacy and self-incrimination are also protected through the following provisions, which are necessary to protect the privacy of individuals and to ensure the Regulator can conduct effective investigations, by enabling persons to provide information to the Regulator in the knowledge that it will be kept confidential:

• in respect of reporting, new s 283ZZG(2) precludes the Regulator from giving a report of a systemic initiated investigation to the clerk of each House of the Parliament if the report identifies or names an individual, or contains information which enables an individual to be identified; and

• finally, in respect of conciliations:

• new sections 283O(1) and (2) provide for the confidentiality of the conciliation process and, by providing that evidence of anything said or admitted in a conciliation is not admissible in a hearing or court or tribunal proceeding (new s 283O(3)); and

• new s 283P prohibits the disclosure of information obtained during a conciliation except in specified circumstances.

Property and fair hearing rights

New s 283G provides that a person who makes a complaint in good faith, or who produces a document or gives any information or evidence to the Regulator in making a complaint, is not subject to any personal liability because of, respectively, the making of the complaint, or the production of the document or the giving of the information or evidence. While the Victorian courts have not determined whether the right to bring a claim constitutes ‘property’ for the purposes of s 20 of the Charter, the Supreme Court has indicated that the term should be ‘interpreted liberally and beneficially to encompass economic interests’.

This could include accrued causes of action. However, if new s 283G could be considered to deprive a person of property, by altering or extinguishing an accrued cause of action, any such deprivation will be ‘in accordance with law’ and will therefore not limit s 20 of the Charter. In particular, the provision is drafted in clear and precise terms. In addition, any deprivation of property would be reasonably necessary to achieve the important objective of ensuring that the Regulator can conduct effective investigations, by enabling persons to provide information to the Regulator without exposure to the prospect of personal liability.

By altering or extinguishing an accrued cause of action, new s 283G may also engage the right to a fair hearing in s 24(1) of the Charter, which protects the common law right to unimpeded access to the courts. For the reasons explained in the paragraph above, I consider that any limit on access to a court would be reasonably justified.

New s 283ZZB provides for powers in relation to documents and things produced at an accountability investigation hearing, or at the request of the Regulator, including retaining the document or thing for any period reasonably necessary for the purposes of the hearing. Any deprivation pursuant to s 283ZZB will be ‘in accordance with law’ and will therefore not limit s 20 of the Charter. Further, the retention of documents and things can only occur if reasonably necessary for the purposes of an accountability investigation, and new s 283ZZB(2) requires that they be delivered to the person, who appears to be entitled to them, when they cease to be reasonably necessary and at the person’s request.

Publishing certain matters, including adverse comments or opinions

Clause 391 of the Bill includes provisions to ensure that those persons with a legitimate interest can access information about an investigation or decision of the Regulator. In particular, the Bill provides that:

• The Regulator is required to give written notice of the decision on a systemic initiated investigation to any person with disability (or their guardian or next of kin as relevant) who was the subject of the investigation and, if the notice makes adverse comment on or gives an adverse opinion of an individual, the Regulator must give the individual a reasonable opportunity to comment on the proposal to give the notice (see new s 283ZD).

• Similarly, if a report to the Minister or Secretary of a systemic initiated investigation, an individual initiated investigation, or a referral investigation makes an adverse comment on or gives an adverse opinion of an individual, at least 14 days before giving the report, the Regulator must give to the individual a copy of the relevant part of the report and give the individual a reasonable opportunity to comment on the adverse comment or opinion (see new s 283ZZF).

Rights to privacy and freedom of expression

These powers engage:

• the right to privacy in s 13(a) of the Charter, and the right not to have a person’s reputation unlawfully attacked in s 13(b), by publishing an adverse comment on or an adverse opinion of an individual; and

• the right to freedom of expression in s 15(2) of the Charter, by compelling the Regulator to impart information.

To the extent that the rights in sections 13 and 15(2) are limited, I consider any limitations to be justified. The reporting requirements in Division 7 of new Part 9A of the SSR Act serve the important purpose of seeking to promote accountability in the disability and social services sector and to protect the rights of people with disability. Accordingly, as any interference with privacy and reputation will be authorised under legislation and is subject to the safeguards of allowing individuals a reasonable opportunity to comment on the proposal to give the notice, or the adverse comment or opinion, I consider the Bill does not amount to an arbitrary interference with these rights.

Complaints and promotion of rights

Clause 391 of the Bill includes protections in relation to complaints and investigations that promote a person’s right to equality before the law (s 8(3) of the Charter) and right to life (s 9).

In respect of the right to equality before the law, the following provisions inserted by clause 391 seek to ensure that complainants and persons with disability have the equal protection of the law without discrimination:

• new s 283F requires the Regulator to give appropriate assistance to a person who wishes to make a complaint if the person requires assistance to formulate their complaint; and

• new s 283ZZ(2) provides that the Regulator may agree to a person giving evidence by different means (e.g., video link) if they are unable to attend the hearing, because of their disability or health.

The following provisions inserted by clause 391 seek to promote complaints’ right to life:

• new s 283H(3)(a) provides that the Regulator may continue to deal with a complaint that has been withdrawn if the Regulator considers that the subject matter of the complaint should be dealt with as it could pose a serious risk to the life, health, safety or welfare of a person;

• new s 283I(3)(b)(i) provides that the Regulator may conciliate or investigate a complaint if it considers that, unless it does so, the subject matter of the complaint could pose a serious risk to the life, health, safety or welfare of a person; and

• new s 283P(2)(a)(i) provides for disclosure of information in circumstances where the person believes on reasonable grounds that the disclosure is necessary to avoid a serious risk to the life, health, safety or welfare of a person.

Division 2 – Transitional and repeal provisions

Removal of the office of the Disability Services Commissioner and the appointment of Associate Social Services Regulators

Clause 397 of the Bill inserts new Part 11B, which provides that the office of the Disability Services Commissioner (Commissioner) is removed, and the Commissioner goes out of office (new s 348D). The Office of the Commissioner is being dissolved because, given the shift in services from the State to the National Disability Insurance Scheme (NDIS), its remit is now small (covering forensic disability services, services to Victorians ineligible for the NDIS and some Transport Accident Commission services) and it is no longer viable as a standalone entity. Accordingly, the Commissioner’s complaint and investigation function for people accessing Victorian Government funded disability services will be absorbed by the Regulator.

Right to equality

The removal of the Office of the Commissioner could engage the right to equality under s 8(3) of the Charter for people with disability. This is because every person has the right to effective and equal protection from discrimination, including on the basis of disability. The removal of the entity that was designed to support the oversight of the Victorian disability services sector, including relevant complaints and investigation processes, is relevant to an assessment of the efficacy of legislated protections against disability-based discrimination.

However, I consider that the removal of the Commissioner would not in fact affect any erosion in protections so as to constitute a limit the right to equality under s 8(3) of the Charter, as the Bill’s amendments to the SSR Act provide that the Regulator absorb the complaint handling and investigation functions of the Commissioner. Further, the creation of the new offices of Associate Social Services Regulator (in new Division 2A of Part 2 of the SSR Act, inserted by clause 11 of the Bill) provides for dedicated Governor-in-Council appointed roles to assist in performing functions of the Regulator, in accordance with the Bill.

As such, there will be no reduction in safeguards for people with disability who continue to receive State-funded disability services. New Part 9A, inserted by clause 391 of the Bill, empowers the Regulator to resolve complaints, to conduct and follow up on initiated investigations, referral investigations and accountability investigations into the provision of disability and social services, and protect the rights of people with disability. Clause 10 of the Bill amends s 15 of the SSR Act to enable the Regulator to delegate functions to an Associate Regulator as needed, including the functions relating to complaints and investigations into the provision of disability and social services (the exercise of which can be informed by expert assistance (see clause 156) and advice from an independent expert advisory panel (see clause 157)).

Therefore, the amendments do not propose to treat people with disability unfavourably and are not likely to have the effect of unreasonably disadvantaging those people, so as to constitute direct or indirect discrimination.

Right to take part in public life, property rights and fair hearing

First, clause 397 of the Bill inserts new s 348D(1)(a) of Division 1 of new Part 11B, which provides that, on commencement day, the Disability Services Commissioner goes out of office. Under s 14 of the Disability Act 2006, the Disability Services Commissioner holds office for a term (not exceeding five years) that is specified in the instrument of appointment and is entitled to receive any remuneration or allowances from time to time fixed by the Governor in Council. On ceasing to hold office – as a result of the provisions introduced by clause 397 – the current Disability Services Commissioner would not be paid any remuneration or allowances.

Although not defined in the Charter, ‘property’ in s 20 would encompass remuneration and allowances. For deprivation of a person’s property to be in accordance with law, as required by s 20 of the Charter, the legal authorisation for the deprivation must be publicly accessible, clear and certain, and it must not operate arbitrarily. The deprivation of the remuneration or allowances of the current Disability Services Commissioner is a statutory consequence of the individual ceasing to hold office by the operation of new s 348D(1)(a). This provision is public, clear, certain and would not operate arbitrarily. Accordingly, I consider that it would not limit s 20 of the Charter.

Further, the Disability Services Commissioner may hold public office for the purposes of s 18(2)(b) of the Charter. However, I do not consider that the right to take part in public life in s 18(2)(b) would be limited by clause 397 of the Bill. This is because the operation of new s 348D(1)(a) in relation to the Disability Services Commissioner going out of office would not, in my view, constitute discrimination within the meaning of the Charter and the Equal Opportunity Act 2010.

For completeness, because the Disability Services Commissioner ceasing to hold office is a statutory consequence, I do not consider that this involves a civil proceeding or a decision-making exercise that would engage the fair hearing right in s 24(1) of the Charter.

Second, clause 397 of the Bill inserts new s 348D(1)(b) to (e) of Division 1 of new Part 11B, which provides for the Regulator to take on certain rights and obligations of the Disability Services Commissioner, including in relation to legal proceedings. Part of the right to a fair hearing, protected in s 24(1) of the Charter, is the common law right to unimpeded access to the courts. Further, while the Victorian courts have not determined whether the right to bring a claim against the State constitutes ‘property’ for the purposes of s 20 of the Charter, the Supreme Court has indicated that the term should be ‘interpreted liberally and beneficially to encompass economic interests’. This could include accrued causes of action and contractual rights.

Clause 397 of the Bill provides that:

• all rights, property and assets, and all debts, liabilities and obligations, of the office of the Disability Services Commissioner, vest in the Regulator (new ss 348D(1)(b) and (c));

• the Regulator is substituted as a party to any pending court or tribunal proceeding to which the Disability Services Commissioner was a party (new s 348D(1)(d)); and

• the Regulator is substituted as a party to any arrangement, memorandum of understanding or contract entered into by or on behalf of the Disability Services Commissioner (new s 348D(1)(e)).

I do not consider that there would be any deprivation of a person’s accrued cause of action against the Disability Services Commissioner by the operation of clause 397 of the Bill, given:

• the Regulator would be substituted as a party to any pending court or tribunal proceeding; and

• the transfer of the Disability Services Commissioner’s property and assets, and liabilities and obligations, to the Regulator would not affect the Regulator’s ability to compensate a person in a legal proceeding.

Further, there would not be any deprivation of a person’s contractual rights against the Disability Services Commissioner by the operation of clause 397 of the Bill, given the Regulator would be substituted as a party to any arrangement, memorandum of understanding or contract. In any case, any deprivation would occur in accordance with law, as required by s 20 of the Charter.

For the reasons outlined above, I also do not consider that clause 397 of the Bill would limit the fair hearing right in s 24(1) of the Charter, because the clause would not operate to preclude people from bringing a legal action against the Regulator in place of the Disability Services Commissioner.

Part 4.3 – Amendment of Social Services Regulation Act 2021

Division 1 – Complaints about social and disability services and other matters

Division 1 of Part 4.3 provides for amendments to the SSR Act that are consequential to the proposed amendments to the Disability Service Safeguards Act and includes provision for the repeal of Part 5 of the SSR Act.

Power to enter public place without consent

Clause 353 of the Bill adds new s 114A to the SSR Act which provides that an authorised officer or independent investigator may enter public premises without the consent of the owner or occupier if:

• the entry is for the purposes of monitoring compliance with or investigating a possible contravention of the SSR Act or the Disability Service Safeguards Act, including for the purpose of conducting an accountability investigation; and

• it is a public place, and entry is made when the place is open to the public.

Right to privacy

Although this new entry power may involve some interference with the privacy of the owner or occupier of the premises, I consider that the interference is neither unlawful nor arbitrary. While the power does not require consent of the owner or occupier for entry, the exercise of the power is limited to circumstances where entry is for a specified purpose linked to an investigation or monitoring compliance with the regulatory regime, and at a time when the place is open to the public. Given this entry power is limited to circumstances where the premises is a public place and connected to the monitoring compliance with or investigating a possible contravention of the regulatory regime (and all other criteria are satisfied), I consider the power to be compatible with the right to privacy.

Powers after entry under warrant

Clause 357 of the Bill adds new s 122A to the SSR Act which outlines the powers of an authorised officer or independent investigator who enters a premises subject to a warrant under s 115 of that Act. These powers include directing a person to produce a document or part of a document located at the premises, providing reasonable assistance, operating equipment or providing access to equipment or complying with any lawful direction. In such circumstances, the authorised officer or independent investigator must inform the person that it is an offence to fail to comply without reasonable excuse, that under s 124 it is a reasonable excuse to refuse or fail to comply if complying would tend to incriminate the individual, and state the maximum penalty for failing or refusing to comply.

Clause 357 also adds new s 122B which provides that it is an offence for a person to fail to comply with a requirement made by an authorised officer or independent investigator under s 122A. This does not apply if the authorised officer or independent investigator failed to inform the person that it is a reasonable excuse under s 124 to fail to comply if complying would tend to incriminate the individual.

Right to privacy and freedom of expression

These powers engage the right to privacy in s 13(a) of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy, family, home or correspondence. S 15 of the Charter also protects a person’s right to freedom of expression, which has been interpreted to include a right not to impart information. This right may be subject to lawful restrictions reasonably necessary for the protection of public order (s 15(3) of the Charter).

While these powers may involve some interference with a person’s right to privacy and expression, they are necessary to ensure that the authorised officers or independent investigators entering a premises under a search warrant can undertake certain actions for the purpose of executing the warrant relevant to an investigation. The powers are limited to being used for the purposes of executing the warrant. Accordingly, I consider that the interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in s 13 of the Charter. I also consider it compatible with the right to freedom of expression because the limitation of this right is lawful and reasonably necessary for the effective execution of warrants under the regulatory regime. Finally, I observe that these powers are only excisable following judicial authorisation in the form of the warrant, protecting against any arbitrary exercise.

Confidentiality notice

Clause 380 amends s 201(1) of the SSR Act to update the bases upon which a confidentiality notice may be issued. This clause provides that the Regulator may issue a confidentiality notice to a person (other than an authorised officer, an independent investigator or a relevant agency) specifying a restricted matter (which is defined in s 200 of the SSR Act). A confidentiality notice may be issued if the Regulator considers on reasonable grounds that the disclosure of that restricted matter would be likely to prejudice: the investigation of a contravention of the SSR Act or the Disability Service Safeguards Act; the investigation of a contravention of the Child Safe Standards; the investigation of conduct of a disability worker, disability student or a regulated social service worker or carer under the Disability Service Safeguards Act; the safety or reputation of a person; or the fair trial of a person who has been or may be charged with an offence.

Right to freedom of expression

The confidentiality notice regime restricts the right to freedom of expression. However, in my view, any restriction is reasonably necessary for the protection of the rights and reputations of others, and for public order. The amendments ensure that the existing regime aligns with the updated monitoring and enforcement functions of the Regulator and the rights of other persons to personal safety, reputation, or a fair trial, are not compromised by inappropriate disclosures concerning the exercise of powers under the Bill. The range of circumstances where a notice may be issued remain limited and appropriately tailored with a number of exceptions, which ensures that the limit on expression goes no further than reasonably necessary. I therefore consider that amended s 201(1) is compatible with the right to freedom of expression.

Part 4.4 – Disability legislation consequential amendment of other Acts

Subdivision 2 – Disability Act 2006

Following the removal of the Board, Commission, and Commissioner, clause 401 of the Bill amends s 202AB(4) of the Disability Act to remove the Board, Commission, and Commissioner as bodies that may receive the disclosure, use or transfer of protected information. Similarly, clause 402 amends s 202AD(1) to also remove the Board, Commission, and Commissioner as bodies which can receive information about worker screening from the Secretary.

As the Board, Commission, and Commissioner has statutory responsibilities under the Disability Act to receive and use information gathered in the course of provision of disability services, the reduction of the scope of the bodies’ functions and powers could engage the right to equality under s 8(3) of the Charter for people with disability.

However, I consider that the above right is not limited by the repeal of the bodies’ functions to receive and use relevant information as these functions will be assumed by the Regulator (which is already a prescribed body for the purpose of these sections), ensuring that there will be no reduction in the ways information related to the provision of disability services and worker screening can be received. On the contrary, the approach will clarify the Regulator’s role to receive relevant information, enhancing the exercise of its functions.

Subdivision 7 – Spent Convictions Act 2021

Clause 415 amends s 22 of the Spent Convictions Act to remove the Board and the Commission as prescribed bodies or persons in which a law enforcement agency may disclose a spent conviction to, and transfers powers to the Regulator as a prescribed body. The amendment will specify that the Regulator, in accordance with its functions under the Disability Service Safeguards Act, can receive disclosures in relation to the registration and regulation of registered disability workers and disability students, and the regulation of unregistered disability workers.

Privacy right

The transfer of powers to receive disclosures to the Regulator may engage the right to privacy insofar that it will allow information to be shared. However, I consider that privacy is protected through this clause, which prohibits the disclosure of information to entities other than as authorised in s 22 of the Spent Convictions Act.

Right to equality

‘Discrimination’ under the Charter is defined by reference to the definition in the EO Act on the basis of an attribute in s 6 of that Act. Relevantly, ‘spent convictions’ is a protected attribute under ss 6(pb) of the EO Act. As such, the Regulator’s power to receive disclosures of spent convictions from a law enforcement agency in relation to the registration and regulation of registered and unregistered disability workers, and disability students, may constitute direct or indirect discrimination. This is on the basis that information about a person’s protected attribute is being shared between two bodies, which may affect, and discriminate against, a person’s employment as a disability worker or disability student.

However, I consider that if such a limitation arises, it is justified in these circumstances. The Bill seeks to strengthen the regulatory systems that apply to disability workers, such that a more effective safeguarding framework can ensure that people with disability can access safe services without fear of abuse, harm or neglect from workers. There is a strong public interest in achieving this purpose and, accordingly, any limitations on the rights to equality are necessary to prevent potential risks of harm from disability workers and disability students towards people with disability, which may not be achieved by less rights-limiting means.

Subdivision 8 – Worker Screening Act 2020 and Schedule 2 – Further consequential amendments relating to the Worker Screening Act 2020

The Bill makes a number of amendments to remove references to the Board, the Commission, and Commissioner in information sharing provisions in the Worker Screening Act and transfers the existing powers to the Regulator as the case requires through consequential amendments in Schedule 2 to the Act to update references to the Secretary to the Regulator. These changes are implemented by the following provisions:

• Clause 417 amends s 18(2) of the Act in relation to consideration of an application for an NDIS check and Items 1.21 and 1.22 of Schedule 2 update references in s 18 from Secretary to Regulator;

• Clause 419 amends s 40(1) of the Act in relation to re-assessment of a person’s eligibility to hold an NDIS clearance and Items 1.53 and 1.54 of Schedule 2 update references in s 40 from Secretary to Regulator;

• Clause 420 amends s 97(2) of the Act in relation to an applicant for internal review of a decision related to an NDIS clearance providing further information and Items 1.155 and 1.156 of Schedule ‍2 update references in s 97 from Secretary to Regulator;

• Clause 421 amends s 104(c),(d), (e) and (f), which removes the Board, Commission, and the Commissioner as bodies in which enquiries can be made and from which information can be sought from for the purposes of assisting VCAT in relation to the determination of an application in relation to NDIS clearances and Items 1.164 and 1.165 update references in s 104 from Secretary to Regulator; and

• Clause 422 repeals s 141, which currently empowers the Secretary to the Department of Justice and Community Safety to notify entities of certain matters relating to disability-related work, and to notify relevant entities (being the Board, Commission, and Commissioner) of matters relating to screening checks and clearances.

While these provisions may interfere with the right to privacy as they allow information to be shared between the Regulator and other bodies, the interference will be neither unlawful nor arbitrary. As discussed above, this is because these amendments are confined to their statutory purpose to enable the transfer to the Regulator of functions currently administered by the Board, Commission, and Commissioner under the Worker Screening Act. Disclosure of information in these circumstances does not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill and is reasonable and proportionate to the Bill’s important objectives. Further, existing privacy protections will apply in the Worker Screening Act concerning further use or disclosure of this information.

Chapter 5 – Amendment of Residential Tenancies Act 1997

Part 5.1 – Specialist disability accommodation amendments

Application to the Tribunal to enter or establish agreement with SDA resident in occupation

Clause 456 of the Bill adds ss 498LAA, 498LAAB and 498LAAC to Part 12A of the Residential Tenancies Act 1997. These amendments provide the ability for a specialist disability accommodation (SDA) resident and SDA provider to apply to VCAT for an exceptional agreement order permitting an SDA residency agreement to be formed notwithstanding that the SDA resident is already in occupation of the SDA dwelling. New s 498LAAB permits VCAT to make such an order if it is satisfied that it is appropriate in the circumstances and having regard to the conduct of the parties. Further, new s 498LAAC requires that an SDA provider gives an SDA resident in respect of whom an exceptional agreement order is made, an information statement within 7 days after the order is made.

These provisions promote the rights of people with a disability in specialist disability accommodation and the right not to have their home arbitrarily interfered with by giving them the opportunity to have a valid SDA residency agreement in circumstances where they may not have been able to form an SDA residency agreement before occupying the SDA dwelling. It ensures that people with a disability can remain living in their home and have the same protections and rights as those who formed an SDA residency agreement before moving into their SDA dwelling.

Part 5.2 -Validation of certain SDA residency agreements

Clause 464 of the Bill adds Schedule 4 into the Residential Tenancies Act 1997. These amendments resolve potential validity issues with specialist disability accommodation agreements made with residents who transitioned from the group home protections under the Disability Act 2006 to the Residential Tenancies Act 1997 between 1 January 2020 and commencement of the protections. These amendments will provide certainty for affected residents and providers by deeming the agreements to have been validly formed in accordance with Part 12A of the Residential Tenancies Act 1997.

These provisions promote and ensure the rights of people with a disability in specialist disability accommodation are upheld, namely the right to equality and the right not to have their privacy or home arbitrarily interfered with. The amendments do this by ensuring that affected residents are not disadvantaged and are offered the choice to continue with their validated agreement or form a new agreement.

Conclusion

I am therefore of the view that the Bill is compatible with the Charter.

The Hon. Ben Carroll MP

Deputy Premier

Minister for Education

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:16): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

Overhaul of Child Safety

Nothing is more important than the safety, welfare and wellbeing of children. The distressing allegations of child abuse in early childhood settings earlier this year demonstrate the need to ensure that we have the most robust and effective systems in place to protect all children in Victoria.

On 2 July 2025, the Victorian Government commissioned the Rapid Review of Child Safety (Rapid Review), led by Jay Weatherill AO and Pam White PSM. The Review made 22 recommendations to drive improvements in child safety. The Victorian Government accepted, and has committed to implementing, all 22 recommendations.

On 27 August 2025, the first tranche of urgent reforms that the government introduced to strengthen Victoria’s Working with Children Clearance laws was enacted. Key changes included ensuring that anyone banned from child-related work interstate will be banned in Victoria, and requiring a Working with Children clearance to be immediately suspended while it is under re-assessment for intended revocation, with no exceptions.

The Social Services Regulation Amendment (Child Safety, Complaints and Worker Regulation) Bill 2025 (the Bill) is the next step in the government’s child safety overhaul. The reforms in this Bill will bring together several child safeguarding schemes under the single roof of the Social Services Regulator and enhance the Working with Children Clearance, as recommended by the Rapid Review, to create a flexible scheme that is responsive to risk and prioritises child safety.

More effective protections for children across all settings

These reforms, in combination with the government’s reforms to the oversight of Early Childhood services, will better protect children across the different settings where they play, learn and receive support and care.

In addition to consolidating the Working With Children Clearance scheme and other child safety schemes within the Social Services Regulator, the Bill also brings the regulation of disability workers into the Social Services Regulator, where it will be aligned with the existing regulation of out of home carer workers and carers. Safeguards will be significantly enhanced across these schemes.

Children use social services, and some of the social services registered by the Regulator are specifically aimed at supporting children – including child protection, statutory care and community-based child and family services. Children with a disability are a particularly vulnerable cohort – both in registered social services and in schools and early education.

While the totality of these initiatives will benefit service users in all settings, the combination of child safeguarding reforms and enhanced protections for service users with disability will particularly benefit children and young people with a disability – whatever service they are accessing.

While regulation of early childhood, teachers and schools will remain with the dedicated schemes in the new Victorian Early Childhood Regulation Authority and the Victorian Institute of Teaching, the strengthened information sharing arrangements between the Social Services Regulator and other regulators will allow information to flow between regulators so that problems are identified and addressed by the appropriate regulator.

The Working with Children clearance, which is used in so many areas of child-related work, provides a strong basis to keep children safe across all the services, activities and settings that children engage in. The Social Services Regulator will make the decisions about who should hold a Working with Children clearance, and who should have their clearance suspended or cancelled. The information that will flow into the Regulator from its own activities and from other sources including the education regulators, will be used to inform those decisions and to help keep children safe from predators in a broad range of settings.

I will now discuss each of the key reforms in this Bill in turn.

The foundation of the child safety overhaul is consolidation of regulatory responsibilities

The Rapid Review found that Victoria’s child safeguarding regulatory framework is fragmented, with functions sitting across multiple regulatory bodies. This approach has meant that ‘breadcrumbs’ of information would often be viewed in isolation, only providing a partial picture of risk. Bringing safeguarding functions together into a single entity – with expanded powers and a broader remit – allows relevant information to be joined up across services, giving a more accurate picture of risk that goes directly to assessing whether someone is suitable to work with children.

The Rapid Review recommended that the Working with Children Clearance, the Reportable Conduct Scheme and the Child Safe Standards be consolidated in one place and that the Social Services Regulator is the appropriate entity to administer all these schemes. This was in recognition of the need to bring ‘breadcrumbs’ of information (including across disability and social services) into the one entity to ensure consistent safeguards for all Victorian children.

The Regulator is an independent statutory authority established under the Social Services Regulation Act 2021 to safeguard social services users from harm, abuse and neglect. As an independent regulator with existing responsibilities relating to children in out of home care, and with an existing role under the Child Safe Standards as an integrated sector regulator, the Regulator is ideally placed to take on this new responsibility.

The Reportable Conduct Scheme, which exists to improve how organisations respond to allegations of child abuse and misconduct by their employees, is currently administered by the Commission for Children and Young People (CCYP). The CCYP oversees some providers’ compliance with the Child Safe Standards and has a State-wide education and guidance function for the Standards. These functions will move from the CCYP to the Regulator.

The changes will focus the CCYP’s critical functions on children and young people in child protection, out of home care and youth justice. The CCYP will continue to promote the rights, safety and wellbeing of children and young people, and provide independent scrutiny of services provided to children and young people, particularly those in the child protection system and in youth justice.

The Bill brings the Reportable Conduct Scheme and the CCYP’s remit for the Child Safe Standards scheme under the roof of the Regulator, locating multiple sources of information about child safety together in one place. Additionally, the Working with Children Clearance, which is administered by the Department of Government Services, will move to the Regulator, who will become the decision maker under the scheme. The Minister for Government Services remains jointly responsible for the Worker Screening Act and the Department of Government Services will continue to run the substantial databases that support both the Clearance and the NDIS worker screening check. The public interface with the scheme will continue to be through Services Victoria, so Victorians will continue to use the same system to apply for a Clearance or to check the status of people they engage to work with children.

Enhancements to the Working with Children Clearance framework

The Rapid Review found that Victoria’s Working with Children Clearance framework under the Worker Screening Act 2020 was not fit for purpose and needed to be rebalanced in favour of child safety. This Bill enacts all of the Rapid Review’s Working with Children Clearance recommendations and ensures that Victoria’s Working with Children Clearance leads the way nationally in better protecting the safety, welfare and wellbeing of children.

The Bill introduces a series of reforms to Victoria’s Working with Children Clearance laws that will improve the Regulator’s ability to act swiftly and decisively to prevent harm to children.

Unsubstantiated information may trigger and inform Working with Children assessments

Currently, only criminal charges or substantiated disciplinary findings can be used as a basis to assess, refuse, temporarily suspend or revoke a Working with Children clearance. Information that falls below this, for example, unsubstantiated allegations or intelligence from police or received through the Reportable Conduct Scheme, can be highly pertinent to forming a holistic picture of risk.

The Rapid Review found that limitations on the use of such information are problematic as they can lead to an incomplete view of the child safety risks posed by a Working with Children clearance holder or applicant. In response to the Rapid Review recommendations, this Bill ensures that the Regulator will have the power to act swiftly and decisively when it receives any information that puts children’s safety in doubt, rather than having to wait until a matter is finalised.

A new Intelligence and Risk Assessment Unit

To support the appropriate use of information that is yet to be substantiated for the purposes of determining someone’s suitability to work with children, a new Intelligence and Risk Assessment unit is being established within the Regulator, consistent with the recommendations of the Rapid Review.

Evidence-based risk assessment tools will be developed with input from child safety experts, ensuring staff are well trained and equipped to exercise consistent and sound professional judgement when weighing up risk information.

A new ‘interim bar’ power to immediately prohibit or suspend someone from Working with Children

The expanded ability to assess risks to children’s safety based on information that is yet to be substantiated will be supported by the introduction of a new ‘interim bar’ power.

Currently, the Regulator must immediately suspend someone’s Working with Children clearance when a person is found guilty of serious offending.

The new standalone ‘interim bar’ power in the Bill will allow the Regulator to act on the basis of serious intelligence or information that is yet to be substantiated, but that suggests a risk to children is present, and immediately prohibit or suspend someone from working with children while the Regulator undertakes a risk assessment.

The ‘interim bar’ can be imposed for six months initially, with an ability for the Regulator to extend this up to a total maximum duration of 24 months. The 24-month upper time limit will ensure the Regulator has time to complete an assessment or re-assessment, and importantly will allow completion of investigative processes – for example, by police or child protection. While it is a substantial period for an interim decision to stand, it means a person will not be subject to a Working with Children exclusion, which prevents a person from reapplying for five years without a change in circumstances.

Because ‘interim bar’ decisions are not a final determination, they are not subject to the internal review process. However, for any ‘interim bar’ that extends beyond six months, the Bill imposes a requirement on the Regulator to re-assess its continued necessity every three months.

An internal review process for Working with Children decisions

The Rapid Review recommended that Victorian Civil and Administrative Tribunal (VCAT) review of a Working with Children decision be removed and replaced with an internal review process. The Review identified the need for review decision makers to possess specialist skills and knowledge relevant to the assessment of risks to child safety.

The Bill enacts this recommendation by preserving review rights but replacing the review pathway to VCAT with an internal review process. This and the following changes importantly ensure natural justice for people who have been refused a Working with Children clearance or have had their Working with Children clearance revoked.

The Bill requires that an application for internal review be dealt with by a person who did not make the reviewable decision and who is in a position equal to or more senior than the original decision maker. This will support a structural separation of first instance and review decision making within the Regulator. It will safeguard against conflicts in the internal review process and ensure the original decision is properly considered afresh.

To ensure that these decisions draw on specialist expertise in child safety, as recommended by the Rapid Review, the Bill will require the Regulator to establish an expert panel that can provide independent specialist advice as needed in relation to individual reviews. The expert panel will be established as a list of appropriately qualified members, a convener, and (at the Minister’s discretion) one or more deputy conveners. The office of convener ensures independence by allowing the expert panel to manage its own processes in response to the Regulator’s requests for advice on individual cases.

Judicial review in the Supreme Court is of course not affected. The Bill’s requirements for the Regulator to provide reasons for an adverse review decision will support applicants to make an informed decision about whether to make such an application.

Mandatory online safety training for all Working with Children applicants

The Rapid Review found that the broader community lacks the required knowledge to act to protect children from abuse and neglect. The Bill requires mandatory child safety training and testing for people applying for a Working with Children Clearance to support applicants to have a base level of child safety literacy. This will equip them to recognise, identify and adequately act to protect children from abuse.

This requirement will apply to all new and renewal applications but will not start until government has ensured the training materials are fit for purpose and integrated with the on-line application system. There will be flexibility to accommodate applicants who require reasonable modifications to be made to the process, as well as flexibility for the Regulator to make alternative arrangements for proof of completion of training to be provided at a later date.

Organisations to verify that employees and volunteers have Working with Children Clearance

The Rapid Review found that there is currently no effective method of ensuring a link between a person with a Working with Children Clearance and every organisation where they work or volunteer. Organisations are not required to verify that persons they engage in child-related work have a Working with Children Clearance. Although the person engaged is required to notify the screening authority that they are working or volunteering with an organisation, and this will create a link on the system between a clearance holder and an organisation, there is a risk a person may fail to link every organisation with which they have worked.

The Bill addresses this risk by requiring anyone engaging a person in child-related work to verify that the person has a Working with Children clearance. Employers and volunteer organisations must also notify the Regulator when they engage or cease to engage a person in child-related work and provide details of the person’s name, address and phone number, and update the Regulator with any changes. This will apply to new and existing workers but will not commence until government has ensured that the requirement can be integrated in the current Working with Children Clearance user interface, and that the burden on organisations will be manageable.

The Bill introduces new offences for failing to update this information, to help ensure compliance. The Bill also ensures that the new requirements are appropriately targeted by providing an exception for parents entering a private arrangement for their own children. These parents will however be able, if they choose, to notify the screening authority that they have engaged a Working with Children clearance holder in child-related work.

These changes will allow the Regulator to properly track the movement of workers and volunteers across organisations, further expanding and strengthening the safety net around children.

National harmonisation

The Victorian Government is also working with the Commonwealth Government and other States and Territories to develop a national approach to the Working with Children Clearance laws and advocate for an improved national database to support real-time monitoring of who holds a Working with Children clearance.

Bringing together information from different parts of the child safeguarding system

The new Victorian Early Childhood Regulatory Authority, VECRA, will be the primary place parents concerned about the quality or safety of care can go for assistance and advice. Any concern about an immediate risk to child safety outside the home, or that a crime may have been committed, should be reported to police. However, government recognises that not all risk to children will end in a criminal prosecution, and child safety cannot wait where unacceptable risks are seen.

These reforms recognise that information about risk to children can come from many different places, and from different stages of an investigation. The Regulator will receive information from investigatory authorities as soon as is appropriate and will be able to act on it quickly to stop someone from working with children if needed.

The Social Services Regulator will also be able to collect up information from other places that consider risks to child safety, including the Victorian Institute of Teaching and VECRA. No matter which agency gets a complaint and investigates it, information from those investigations can flow into the Regulator.

The new shared intelligence and risk assessment function will allow the Regulator to piece this information together, so it gets a holistic picture of whether someone is a risk to children and so that it can make quicker and robust decisions about whether people are safe to work with children.

These reforms are building a system that enables different agencies to work together, to get a complaint or concern to the right place to be investigated and then get the information from that investigation into the right place for it to be acted on. In the words of the Rapid Review, over time there should be ‘no wrong door’.

Working with the new Early Childhood Regulator

The expanded Social Services Regulator will work closely with the proposed new independent Victorian Early Childhood Regulatory Authority, introduced in the Victorian Early Childhood Regulatory Authority Bill 2025, to strengthen regulation and child safety.

Early childhood workers (who are not also qualified teachers) need a Working with Children Clearance to work in early childhood. The Social Service Regulator will tell VECRA when it suspends or cancels an early childhood worker’s Working with Children Clearance, so that VECRA is aware that a person can no longer work in early childhood.

The Regulator will also tell any organisation that it is aware of that employs that person. While an individual is required to stop performing child related work, ensuring that employers know when a clearance is suspended or cancelled protects against workers failing to remove themselves from the workplace.

In addition to sharing these outcomes, the Regulator is also empowered to share information with other regulators. Where the Regulator receives a complaint or intelligence that would fall within VECRA’s remit, the Regulator will be able to refer the complaint or intelligence to VECRA and vice versa, ensuring a ‘no wrong door’ approach to child safety matters.

The Social Services Regulation Act 2021 includes broad information sharing powers, that will allow the Regulator to share relevant information with VECRA. Similarly, the VECRA will be empowered to share information that is required under any other law – providing information to the Social Services Regulator that will be able to be added to the other pieces of information gathered through the new intelligence and risk assessment function.

Where that information raises a question of whether a person is suitable to work with children, the Regulator’s expanded powers under the Working with Children Clearance will allow it to combine this information with other ‘breadcrumbs’ from sources including social services regulation, Reportable Conduct Scheme and its Child Safe Standards work, and reassess or suspend an individual’s Working with Children clearance where necessary. As I noted earlier, the Regulator will notify VECRA of these outcomes. As these reforms commence, the regulatory authorities will build the protocols and pathways to ensure this information is shared quickly to enable each regulator to play their part.

Both the Social Services Regulator and the Victorian Early Childhood Regulatory Authority will be prescribed under the Child Information Sharing Scheme, further enhancing the information that can be shared between them. The scheme allows prescribed organisations to share confidential information about children when doing so will promote a child’s wellbeing or safety – including to assess or manage risk, plan services, or support investigations.

This will enable the Social Services Regulator and the Victorian Early Childhood Regulatory Authority to receive and share relevant information to:

• identify and respond to risks to children

• inform workforce screening and exclusion decisions

• coordinate regulatory responses with other oversight bodies.

In practice, if a worried parent contacted the Social Services Regulator with concerns about the behaviour of an early childhood educator, that information will reach the right place for any investigation or other follow action required.

If the complaint raises concerns about criminal conduct, the Regulator would contact Victoria Police to enable the allegation to be investigated. The proposed new Victorian Early Childhood Regulatory Authority (VECRA) will be the central regulator for early childhood, so the Regulator would also provide any information about risk to a child to VECRA.

Criminal investigation by Victoria Police will always take precedence. Depending on the circumstances, this information could also be responded to by a combination of regulatory measures. These include information gathering across multiple sources, risk assessment, and the use of new Working with Children Clearance suspension powers designed to protect children from harm across all settings involving child-related work.

The Regulator could gather information as part of its own investigation of the worker’s suitability to continue to hold a Working with Children clearance. This could involve gathering information from police and VECRA, as well as other sources such as allegations or investigations under the reportable conduct scheme and the worker and carer exclusion scheme for out of home care workers. Importantly, the Regulator is no longer required to wait, for example, for police to charge the worker before taking protective action. The Regulator may suspend the worker’s Working with Children clearance if it considers that it is in the interests of child safety to do so. The Regulator must then notify the worker of the suspension in writing, stating that they must not engage in child-related work while the suspension is in force. The Regulator would also be required to notify the centre and/or agency who employs the worker. The suspension would affect the worker’s right to work with children in other settings, including early childhood education and teaching, and would also prohibit the worker from engaging in any volunteer activity involving child-related work such as sports coaching.

Consolidating disability oversight functions in the Social Service Regulator.

Similar to the early childhood sector, the location of different responsibilities and different sources of information in the disability oversight area leads to the risk that no one agency has a holistic focus on consistent protections and safeguards for children and adults in higher-risk settings. Disability oversight in Victoria is currently fragmented and confusing for people with disability to navigate. The Victorian Disability Worker Commission regulates disability workers, while the Disability Services Commission receives complaints about State-funded disability services. The Social Service Regulator regulates state-funded disability services and ensures that providers meet the social service standards.

This Bill will bring all the current Victorian disability oversight functions under the roof of the Social Services Regulator, creating a more efficient and effective system that is easier for people with a disability to navigate. It will also better enable breadcrumbs of information and risk to be shared, to inform collective action across different sectors, including higher-risk settings, to protect children.

The rights of children and adults with disability are a key priority for the Victorian Government. The reforms will ensure that people with disability continue to be protected from harm, abuse and neglect, and receive safe and high-quality services. Many reforms in this Bill, which I will outline below, enhance protections and safeguards for disability service users.

The changes in the Bill will enable better information sharing and a stronger independent regulator that has the powers it needs to keep our communities safe. It will deliver a strengthened and more efficient safeguarding framework to ensure that children and adults with disability – and people accessing social services more broadly – can access safe, high-quality services, and can do so without fear of abuse, harm, or neglect from providers or workers.

More effective safeguarding of children and adults accessing disability services

The Rapid Review acknowledged that predators exploit system loopholes and administrative gaps to target vulnerable people. The reforms in this Bill will strengthen Victoria’s regulatory systems recognising that children with disability may be at higher risk of abuse. As the Rapid Review noted, for too long too many separate pieces of relevant information about an individual have not been pieced together to create the full picture of risk. We need a better understanding of child safety to protect all children – including those at risk due to disability, neglect, family violence and other forms of abuse. This Bill also reflects the need to protect children and adults accessing disability services in Victoria, particularly to ensure that predators are prevented by the Social Services Regulator from moving between sectors.

Safeguarding all children including those with disability cannot wait and we must act. An effective and efficient safeguarding framework is vital to ensure that all Victorian children and adults living with disability can access high-quality services, and can do so without fear of abuse, harm and neglect from providers.

This Bill addresses regulatory fragmentation raised by the Rapid Review by bringing together a range of related regulatory and oversight functions within the one agency to create a system that is easier for everyone to navigate. Amongst other things, this provides that breadcrumbs of information across any of the Social Services Regulator’s functions can be used to prevent high-risk individuals from working with children with disability and builds on improvements already made to the Working with Children Clearance to include prohibitions of disability workers by regulatory bodies as a trigger for an NDIS worker screen or Working with Children re-assessment.

An expanded complaints scheme

The number of different entities involved in regulation and complaints for social services can be confusing for service users. For example, of the 62 complaints made to the Disability Services Commissioner in 2024-25, 58 were outside of its legislated scope. Where those complaints never reach the right place, this can lead to essential safeguarding information being missed or trends of poor conduct by workers going unchecked, reducing the safeguards for children and adults in high-risk settings.

The Review of the National Disability Insurance Scheme noted that people with disability frequently struggle to identify which service they should approach to have their concerns addressed.

The Disability Royal Commission also noted in its final report that accessing the existing complaints landscape is difficult without appropriate assistance and support. The report highlighted stakeholder feedback calling to remove the burden on individuals to navigate where to complain whilst respecting and empowering them to participate.

Disability Services Commissioner

The Disability Services Commissioner currently receives and resolves complaints about disability service providers (not individual workers) and promotes the rights of people with a disability to be free from abuse and neglect. However, with the shift in services from the State to the National Disability Insurance Scheme, the remit of the Victorian Office of the Disability Services Commissioner is now very small, covering forensic disability services, services to Victorians ineligible for the NDIS and some Transport Accident Commission services.

But, while the scope of the Office has reduced in size, its function of regulating State funded and delivered disability service providers continues to be an important safeguard. The function will be moved into the Social Services Regulator, where complaints about a disability service that is funded by Victoria will continue to be able to be dealt with, and where the information that a complaint provides can also inform the Regulator’s broader regulatory activity.

A new complaints pathway for all social service users, covering all social service providers

It is not only users of a disability service who, from time to time, will wish to complain about the service they are receiving. However, currently users of disability services are the only social service users that have a dedicated pathway for their complaint to be heard.

The Bill introduces a new, dedicated and accessible pathway for service users and their advocates to raise concerns about social services with the Social Services Regulator. This not only provides critical new safeguards for service users that do not currently have access to a dedicated complaints function but also supports the Regulator to gain information across sectors and address risks in a timely way.

The complaints scheme will be rolled out progressively – starting with disability services and disability workers and eventually covering all social services within the scope of the Regulator. This will allow for complaints in a social service, to be made to the one Regulator. This will allow action to be taken to safeguard children and adults in disability services, out of home care or the broader social services and to provide the same level of consistent safeguards and protection across all the social services.

The Regulator will be able to resolve complaints through agreement with the relevant parties, or through investigation. It will have access to its full range of existing powers to conduct investigations about complaints it receives.

As in the child safety space, it is important to be able to bring together disparate pieces of information from different sources in order to fully identify risk to users of social services. A complaints function will allow the Regulator to receive a broad picture of risk, from multiple sources, and to consider this information holistically, and determine the most appropriate response.

Where the Regulator receives information through its complaints function (including about disability services and/or workers) which raises a question about whether a person is suitable to work with children, the Regulator’s expanded powers under the Working with Children Clearance will allow it to combine this information with other ‘breadcrumbs’ from sources including the Reportable Conduct Scheme and re-assess or suspend an individual’s Working with Children clearance. This builds on recent changes to Victoria’s Worker Screening laws which ensure a decision by other regulators to prohibit a disability worker, triggers a re-assessment of the worker’s NDIS worker screen or WWC clearance. This will better protect Victorian children, as a potential predator located in one service type will be more easily stopped from working across any other settings where children play, learn or receive support and care.

Worker regulation

Currently, the Victorian Disability Worker Commission and Disability Worker Registration Board are jointly responsible for regulating disability workers in Victoria. The Commission can investigate complaints and notifications about disability workers and the Commissioner can prohibit disability workers from providing disability services in certain circumstances. The Disability Worker Registration Board sets standards for and administers the voluntary registration system for disability workers.

The Bill will mean the Regulator takes on these functions, in addition to its current role of regulating out of home care workers and carers under the Worker and Carer Exclusion Scheme. The Disability Worker Registration Board will dissolve once these functions transition to the Regulator.

The worker regulation and prohibition scheme will continue under the Regulator, with the Bill aligning, where practical, existing regulation of out of home care workers and carers with regulation of disability workers so that they are regulated consistently.

Importantly, the changes will also increase protections for people with a disability and children in out of home care. The Bill will introduce additional regulatory tools for the out of home care sector, to align with those currently available in the disability sector. The current Worker and Carer Exclusion Scheme can only result in a decision to prohibit or not prohibit a worker or carer, while the disability worker regulation scheme allows for a range of interventions that are appropriate when a worker’s conduct needs to be addressed, but does not warrant prohibition.

These include providing information and guidance to a worker, or placing conditions on a worker such as requiring them to undertake specified training. These interventions will be available for lower-level conduct, aiming to address concerning worker conduct before it risks harm to service users and warrants the worker being prohibited.

Currently a disability or out of home care worker who is prohibited under one scheme is still able to work in the other. Bringing the schemes together under one roof will enable the Regulator to prohibit a worker or carer from being employed or engaged in one sector, if they have a prohibition order against them in the other. This will enable the Regulator to limit mobility of excluded workers between the disability and out of home care sectors, further protecting Victorian children and Victorians with disability.

There will be increased penalties for offences that apply in the disability sector, ensuring greater uniformity of penalties across the two regulated workforces. Offences that exist in the Worker and Carer Exclusion Scheme will be expanded to also apply in the disability sector, including offences for applying for employment if prohibited and for failing to notify an employer if placed under investigation, or subject to a condition or a prohibition order. There will also be a new offence that will apply to any registered disability provider that engages a disability worker, while that worker is listed on the public register as being prohibited. The new offences and changes to penalties ensure consistency across the two workforces and will strengthen protections for service users.

Consistent with the new internal review process for the Working with Children Clearance scheme noted earlier, the Bill creates an internal decision making and review pathway for both out of home care and disability worker regulation. This replaces first instance prohibition decisions about out of home care workers and carers that are currently made by the Worker and Carer Exclusion Scheme Panel. It also replaces review of worker prohibition decisions for disability and out of home care workers which are currently reviewable by VCAT. These internal review processes will be supported by the same expert advisory panel arrangements being established in connection with the Working with Children Clearance scheme, ensuring that independent specialist advice can be provided to the Regulator for particular internal review decisions. The expert panel will include specialist disability expertise as well as child safety expertise to ensure decisions by the Regulator are appropriately informed.

Worker and Carer Register

Currently, the Regulator is required to record information on workers and carers who are prohibited from working in the out of home care sector, and this information is used to ensure that out of home care services do not engage prohibited workers. The information is not publicly available.

The reforms will establish a requirement for the Regulator to maintain a register of workers and carers in the out of home care sector, including details of their employment or engagement, covering the same scope of workers and carers as the previous Victorian Carer Register.

Providers will be required to provide the Regulator with the required information on the people they employ or engage, and it will be an offence not to provide this information. Providers will have adequate time to provide this information as the register is being established.

If a worker or carer is under investigation, or is excluded from the out of home care sector, this register will enable the Regulator to identify where the individual is employed or engaged, or may have previously worked or been engaged, and to swiftly notify relevant providers. This will prevent prohibited workers or carers from working with Victorians with vulnerabilities, providing critical additional protection for service users.

I am conscious that we do not yet have a similar database of disability workers in Victoria, who may be working across State and or NDIS funded roles. I know that the Commonwealth raised concerns about the risks the number of unregistered NDIS service providers pose, and the NDIS Provider and Worker Registration Taskforce recommended registration of disability workers. As Disability Minister, I will continue to advocate for a strong regulatory system to protect the rights of people with disability to receive safe and high-quality services they deserve, including a register of disability workers.

Maintaining disability specialisation

We have heard that there needs to be a continued focus on disability sector specialisation throughout these reforms. In response, the Bill includes reforms to ensure that the Regulator retains disability focus and expertise, including:

• establishing Associate Regulator roles. These key leadership roles will be Governor in Council appointments. There is flexibility in how these roles can be used, but it is intended that at least one Associate Regulator will have an understanding of, and expertise in, disability, and another will have child safety expertise.

• staff from impacted entities such as the Victorian Disability Worker Commission will transfer to the Regulator.

• enabling the Regulator to establish expert committees or expand existing committees to provide advice on the registration and regulation of Victoria’s registered and unregistered disability workers.

• as noted above, the ability to include specialist disability expertise on the Expert Advisory Panel, ensuring that the Regulator is informed by expertise in this area when reviewing prohibition decisions.

Procedural fairness safeguards

The common objectives that cut across all these reforms are the paramountcy of the safety of vulnerable cohorts and the prevention of individuals posing an unjustifiable risk from gaining access to sector specific employment or volunteering opportunities.

Consequently, the Bill empowers the Regulator to make decisions that have significant consequences for the rights of individuals, including prohibiting individuals from working in the out of home care and disability sectors and in child-related work, where appropriate and necessary.

However, the Bill includes safeguards to ensure any decision to prohibit an individual from working in a relevant sector is proportionate and justified in the interests of safeguarding vulnerable individuals.

In relation to disability and out of home care worker and carer regulation and Working with Children Clearance functions, the following procedural safeguards will apply or continue to apply:

• a requirement for the Regulator to provide reasons for decisions (subject to exceptions where disclosure would prejudice an investigation, identify a confidential law enforcement source of information or pose a serious safety risk).

• the ability to respond to evidence relied upon by the Regulator in making a final Working with Children Clearance decision.

• structural separation of first-instance and review decision making in the new internal review process, and the requirement for the Regulator to establish an independent expert panel from which the Regulator can seek specialist advice on complex review applications. There will also be requirements to provide written reasons for an adverse internal review decision.

• judicial review to the Supreme Court is retained, noting that the requirements for the provision of reasons in the Bill will support applicants to make an informed decision about whether to make such an application to the Supreme Court.

• a requirement for regular re-assessment of interim bar decisions, and interim out of home care and disability worker prohibitions.

In relation to allowing unsubstantiated intelligence or information to inform Working with Children Clearance assessments, in addition to the above procedural safeguards:

• the implementation of more sophisticated risk assessment capabilities through an enhanced risk assessment tool will enable greater use and interrogation of information. It will also ensure the Regulator has evidence-based tools to fully assess the risk posed to children by the new types of information.

• an offence of providing false or misleading information will mitigate against the risk of vexatious or malicious action in relation to allegations.

• the Regulator will be required to report annually on the number of adverse decisions made that involve consideration of information that is not able to be shared with the individual who is the subject of that decision.

Review

This is a significant package of reforms, which will affect many Victorians. Over 2 million Victorians hold a Working with Children Clearance, and up to half a million applications and renewals are processed every year. We are striking a balance between the paramount consideration of ensuring Victorian children are safe and the need to preserve a fair and efficient system that enables many Victorians to work and volunteer in their communities.

To ensure that we have struck the right balance, we are committing to review the reforms made in this Bill in response to the Rapid Review, five years after the commencement of those reforms. That review will be tabled in Parliament.

Implementation

The reforms in this Bill are significant and urgently required. In particular, the Government is seeking to make changes in response to the child safety review as a matter of urgent priority.

Given the scale and complexity of the reforms, they will be phased in progressively, commencing with numerous reforms to the Reportable Conduct Scheme, most of which will start on Royal Assent.

Given the urgent nature of this reform package, I intend that the other reforms will commence as soon as the required arrangements can be put in place.

Specialist disability accommodation and other minor amendments

The Bill makes targeted amendments to Part 12A of the Residential Tenancies Act 1997 to ensure that the rights of people with disability in specialist disability accommodation are upheld, and that the law operates as intended.

The amendments will resolve potential validity issues with specialist disability accommodation agreements made with residents who transitioned from the group home protections under the Disability Act 2006 to the Residential Tenancies Act 1997 between 1 January 2020 and commencement of the protections. In some cases, these agreements could be found to be invalid due to technical defects in how they were formed.

The amendments will provide certainty for affected residents and providers by deeming the agreements to have been validly formed in accordance with Part 12A. To ensure residents are not disadvantaged, providers will be required to offer residents the choice to continue with their validated agreement or to form a new agreement.

The Bill will further improve and enhance Part 12A by:

• empowering the Victorian Civil and Administrative Tribunal to waive the requirement that an agreement be made before the resident moves into the accommodation

• aligning rent collection provisions for specialist disability accommodation with the rest of the Residential Tenancies Act 1997, reducing confusion for residents and providers

• streamlining residential notice requirements to reduce duplication, while preserving the Public Advocate’s safeguarding role in respect of notices issued under Part 12A.

The Bill also makes minor and clarifying amendments to the Residential Tenancies Act 1997, Social Services Regulation Act 2021 and other Acts. The changes are needed to ensure alignment of those Acts with amendments made by the Disability and Social Services Regulation Amendment Act 2023.

Conclusion

The Government has acknowledged the need for an overhaul of the child safety system to keep Victorian children safe and rebuild confidence in the early childhood education and care sector. The reforms in this Bill are a crucial step in the Government’s response to distressing allegations of abuse in childcare centres.

Likewise, the Government is committed to ensuring that the safeguarding framework for people accessing social services is effective, efficient, and fit for purpose. The Bill will make the safeguarding system simpler for people to navigate and provide additional avenues for people accessing social services to have their voices heard.

The Bill reflects the Government’s commitments to streamline, strengthen, and enhance regulation of social service providers, disability and out of home care workers and carers, and workers and volunteers working with children and young people.

This Bill will ensure that Victoria’s regulatory frameworks for child safety and social services are as strong as possible to promote and protect the safety and wellbeing of our most vulnerable Victorians.

I commend the Bill to the house.

 James NEWBURY (Brighton) (12:16): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned until later this day.