Wednesday, 12 November 2025

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

That I introduce a bill for an act to amend the Education and Care Services National Law set out in the schedule to the Education and Care Services National Law Act 2010, and to make Victorian specific modifications to that law as it applies as a law of Victoria, to improve child safety in education and care services and for other purposes’.

Motion agreed to.

 Jess WILSON (Kew) (12:17): I ask the minister for a brief explanation.

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:17): The Early Childhood Legislation Amendment (Child Safety) Bill 2025 implements agreed reforms by states and territories to the national law governing early childhood safety and quality following decisions at recent education meetings. Further, this bill will also legislate reforms to Victoria’s regulation of early childhood education and care, going further than the national consensus to provide additional regulatory tools to the new Victorian early childhood regulator to keep children safe.

Read first time.

Ben CARROLL: I move:

That this bill be read a second time immediately.

Under standing order 61(3)(b), I can advise the chamber that representatives of all other parties and independent members have received a copy of the bill and a briefing in accordance with the standing orders.

Motion agreed to.

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:21): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Early Childhood Legislation Amendment (Child Safety) Bill 2025:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Early Childhood Legislation Amendment (Child Safety) 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 Bill amends the Education and Care Services National Law (National Law) set out in the Schedule to the Education and Care Services National Law Act 2010, to implement the recommendations of the Rapid Child Safety Review (Rapid Review) to improve child safety in education and care services and the early childhood child safety and quality reforms arising from the national Review of Child Safety Arrangements under the National Quality Framework (Child Safety Review) and other priority national child safety and quality reforms agreed by the Ministerial Council.

The objects of the Bill are to:

Strengthen Legal and Enforcement Measures

•   extend timeframes for prosecuting offences, triple maximum penalties, and add new infringement offences to strengthen enforcement;

Conduct, Supervision and Training

•   add new offences for inappropriate behaviour, and allow authorities to suspend or supervise staff and volunteers, or require them to undergo training;

Emphasise Child Safety and Wellbeing

•   reinforce that children’s safety and wellbeing must be the top priority, with mandatory child protection and safety training for those working in education and care;

Increase Regulation of Technology and Environment

•   introduce rules to manage the use of digital devices in care settings, and provide new powers to authorised officers to inspect family day care services;

Increase Oversight and Transparency

•   establish a register for key personnel (National Early Childhood Worker Register), require approved providers to report changes in ownership or voting rights, and expand information-sharing with providers and agencies; and

Administrative Updates

•   make minor and consequential amendments to improve clarity and consistency.

Human rights issues

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

•   the right to protection from forced work (section 12);

•   the right to privacy and reputation (section 13);

•   the right to freedom of expression (section 15);

•   the right to freedom of association (section 16)

•   the right to protection of children (section 17(2));

•   property rights (section 20);

•   the fair hearing right (section 24(1));

•   the right to presumption of innocence and other criminal process rights (s 25); and

•   the protection against retrospective criminal laws (s 27).

Importance of Bill - protecting the safety, rights and best interests of children

As the amendments in this Bill all serve a common purpose of bolstering protections, safety and welfare in child-related education settings, I consider it helpful to preface my statement with an outline of the importance of this Bill and the pressing objectives it serves.

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

The safety, health, wellbeing and protection of children is one of the highest priorities for all Australian governments. In 2023, the Australian Government Minister for Education and Minister for Early Childhood Education, supported by all state and territory Education Ministers, requested that the Child Safety Review be undertaken by the Australian Children’s Education and Care Quality Authority (ACECQA). The Final Report of the Child Safety Review was published by ACECQA in December 2023.

The Child Safety Review examined new or refined systemic safeguards to better support services to protect children who attend an ECEC service. The Child Safety Review made 16 recommendations to address emerging issues, close loopholes, strengthen policies and practices, child safe cultures, recruitment processes and information handling, support staff capabilities, and improve protections around the use of new, online technologies.

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. The Rapid Review identified immediate actions the Victorian Government should take 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 Child Safety Review and Rapid Review’s findings, this Bill introduces new offences for inappropriate conduct and give regulatory authorities stronger powers to suspend or supervise staff and volunteers, as well as require training.

The amendments place greater emphasis on child safety, emphasising it as the central consideration in service delivery and mandating child protection training. Transparency is improved through a new register of personnel and stricter reporting requirements for corporate providers. Legal enforcement is strengthened by extending prosecution timeframes, increasing penalties, and adding new infringement offences. The use of digital devices in care settings is now regulated, and authorised officers have expanded powers to inspect family day care services. Finally, minor technical updates have been made to improve clarity and consistency across the legislation.

In doing the above, the Bill pursues the important and pressing objective of protecting child safety in the early childhood education and care settings. 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 education and care services laws are principally directed at stopping predators from commencing or continuing to engage in child-related work.

New paramount consideration of child safety

To codify the importance of protecting children, clause 61 of the Bill inserts new s 2A into the National Law which provides that the safety, rights and best interests of children is the paramount consideration in the operation of an education and care service and in the delivery of education and care services to children. New subsection 2A(2) provides that various persons involved in the provision of an education and care service must have regard to and apply the paramount consideration in making any decision or taking any action under the National Law. The introduction of this paramount consideration promotes the protection of children under s 17(2) of the Charter by effectively imposing a positive duty on education and care providers to have regard to the safety, rights and best interests of children, embedding a culture of child safety into their decision-making processes and day to day operation.

Amendments to the National Law relating to offences, recruitment agencies and powers of the Regulatory Authority

The Bill amends the National Law to introduce penalties for providing false and misleading information to recruitment agencies regarding prohibition orders, and to allow the Regulatory Authority to share information with, and require information from, recruitment agencies. These amendments engage the rights to privacy and freedom of expression.

Rights to privacy and freedom of expression

Section 13(a) of the Charter prohibits unlawful or arbitrary interferences with a person’s privacy. The right to privacy has been interpreted broadly by the courts to include protection of a person’s physical and psychological integrity, their individual and social identity and their autonomy and inherent dignity. Arbitrary interferences are those that are capricious, unpredictable or unjust, as well as unreasonable because they are not proportionate to a legitimate aim sought. An interference with privacy can still be arbitrary even though it is lawful.

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.

Clause 5 inserts new section 188B, which mirrors the existing offence in section 188A of the National Law in relation to false or misleading information about a prohibition notice, but expands its application to an individual who has entered into an agreement with a recruitment agency for education and care related work (agency educator) and who is subject to a prohibition notice.

By prohibiting such an individual from making a false or misleading statement to a recruitment agency about the prohibition notice, clause 5 engages the right to freedom of expression in section 15 of the Charter. This is consistent with the lawful restriction on the right to freedom of expression in section 15(3) of the Charter, being that the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other people, including children. The right to freedom of expression is heavily qualified - and generally understood to not extend to protecting false or misleading expression in the context of a person’s participation in a regulatory scheme. Deterring a person from providing false or misleading information about prohibition orders to which they are subject is directly connected to reducing the risk of harm to children and operationalising the effectiveness of these compliance measures.

Clauses 7 and 8 introduce powers to require recruitment agencies to provide information. Clause 7 inserts new section 206A, which mirrors the existing power in section 206 of the National Law of authorised officers to obtain information, documents and evidence, but expands its application to recruitment agencies. Similarly, clause 8 expands the existing power in section 215 of the National Law of the Regulatory Authority to obtain information, documents and evidence by notice, but expands its application to recruitment agencies. The definition of recruitment agency in clause 3 encompasses individuals. Under the National Law and regulations, approved providers are required to keep prescribed documents relating to any staff member employed or engaged by the service, including staff records comprising contact information, and evidence of relevant qualifications and training.

By requiring a recruitment agency to provide personal information about agency educators, clauses 7 and 8 engage the right to privacy and the right to freedom of expression in section 13(a) and section 15 of the Charter respectively. In respect of section 13(a), I consider that any interference with an agency educator’s privacy would be in accordance with law and proportionate to the legitimate aim of ensuring that, when an allegation is made against an agency educator and a host provider has an incomplete staff record, authorised officers and the Regulatory Authority are empowered to obtain additional information about agency educators from recruitment agencies in order to take urgent action to mitigate risks to children. While this information may be personal, it will relate to information to which a person undertaking such roles would possess a lower expectation of privacy in relation to. For the same reasons as above, compelling recruitment agencies to provide information would not limit section 15(2) of the Charter, as it would be reasonably necessary to protect the rights of others, and public order.

Clauses 9 and 10 permit the National Authority or the Regulatory Authority to share information about an agency educator with their recruitment agency, including information about the educator’s prohibition orders and enforceable undertakings. Clause 9 permits the National Authority or the Regulatory Authority to disclose to an approved provider, without that provider’s prior request, information about whether an individual employed (or appointed or engaged) by the approved provider has given an enforceable undertaking or is subject to a prohibition notice, or whether a family day care educator employed (or appointed or engaged) by the approved provider has been suspended, if the National Authority or Regulatory Authority considers on reasonable grounds that the information may assist the provider to comply with the National Law. The effect of this amendment is to enable the National Authority and Regulatory Authority to proactively disclose certain information to an approved provider and to expand the types of information that may be disclosed to include enforceable undertakings. Further, the threshold for allowing disclosure of information is lowered from ‘requires’, to ‘may assist’ the provider to comply with the National Law in clause 9. Clause 10 inserts new section 272A, which permits the National Authority or the Regulatory Authority to disclose information to a recruitment agency for the purposes of promoting the objectives of the National Quality Framework about whether an individual has given an enforceable undertaking, is subject to a prohibition notice or has been suspended.

Although these clauses may engage the right to privacy in section 13(a) of the Charter, by allowing the disclosure of personal information pertaining to educators, the disclosure would be in accordance with law, including as already provided for under section 272 of the National Law, and necessary to ensure that prohibited or suspended agency educators do not work with children across multiple services undetected. In my view, a person would not hold a reasonable expectation of privacy in relation to records about their compliance with a regulated scheme or the existence of compliance orders being made against them, and the sharing of that information between the Regulator and employers is necessary for the purpose of upholding compliance with the National Law.

Additionally, allowing proactive information sharing (ie, without an approved provider’s prior request) and information gathering by regulators is necessary to support early intervention and mitigation of harm to children, which promotes section 17(2) of the Charter

Extending the time within which proceedings for offence may be brought

Clause 11 of the Bill amends section 284 of the National Law to provide that proceedings for an offence under that Law must be commenced within 2 years after the date on which the person bringing proceedings – being the Regulatory Authority, a person authorised by the Regulatory Authority or a police officer – becomes aware of the alleged offence. This extends the existing limitation period previously set as requiring commencement of proceedings within 2 years of the date of the alleged offence.

Clause 11 further amends section 284 to provide that if the Regulatory Authority becomes aware of an alleged offence but is required to suspend taking action in relation to the alleged offence because of a concurrent investigation or proceeding in relation to the same conduct under another Act, proceedings for the offence against the National Law must be commenced within 2 years after any investigation or proceeding (as the case requires) in relation to the conduct under the other Act have been finalised. Section 284 applies to all offence provisions under the National Law. The offence provisions carry monetary penalties and are subject to criminal prosecution.

These amendments are relevant to retrospective criminal laws (s 27) and fair hearing (s 24).

Retrospective criminal laws

Section 27(1) of the Charter provides that a person must not be found guilty of a criminal offence because of conduct that was not a criminal offence when it was engaged in.

The amendments to the National Law introduced by clause 11 apply retrospectively, meaning that Regulatory Authorities could bring proceedings for alleged offences that they become aware of in the 2 years prior to this amendment coming into force that they would not otherwise have been able to bring proceedings for (because the current limitation period in section 284 starts on the date that the alleged offence occurs).

As the amendments introduced by clause 11 do not retrospectively criminalise conduct or impose increased penalties for existing offences, they do not engage section 27(1) of the Charter. Regulatory Authorities will not be able to prosecute a person for an offence which did not exist at the time the alleged conduct which would constitute the relevant offence occurred or seek a penalty amount greater than the amount which applied at that time.

Fair hearing and criminal process rights

Section 24(1) of the Charter provides that a person charged with a criminal offence 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. A person can be subject to procedural disadvantage and still have a fair hearing. Section 25(2)(a) of the Charter provides that a person charged with a criminal offence is entitled without discrimination to be informed promptly and in detail of the nature and reason for the charge. Section 25(2)(c) provides that a person has the right to be tried without unreasonable delay.

Amendments to extend the limitation period for bringing proceedings are relevant to sections 24(1) and 25(2) of the Charter. In respect of section 24(1), the new limitations period based on when the Regulatory Authority becomes aware of the alleged offending does introduce a potentially indeterminate period for bringing proceedings in relation to when an alleged offence was committed, which could, if a long period has elapsed between the alleged offence being committed and the Regulatory Authority becoming aware of it, prejudice an accused’s ability to prepare their defence. Longer periods for commencing proceedings are relevant to an accused’s capacity to access or lead admissible exculpatory evidence, the availability of relevant witnesses and their capacity for recollection, and the availability of documentary evidence (noting that longer periods for commencing proceedings may also adversely affect the Regulatory Authority’s ability to prove the offence). Similarly, in respect of section 25(2), the delay may limit the minimum guarantees of being promptly informed of the nature of the reasons for a charge and of being tried without unreasonable delay, which ultimately protect against a person being subject to an indefinite prospect of prosecution.

However, clause 11 also involves balancing conflicting rights. Commencing prosecutions for breach of the National Law is essential to safeguarding child safety, ensuring administration of justice for victims and accountability for perpetrators. It promotes the right to protection of children as in their best interests, and in certain circumstances would be relevant to ensuring security of person and the right to life (to the degree that those rights impose positive obligations on the State to have a criminal justice system that is able to bring perpetrators to account without obstacles, and deliver justice for victims). I consider that any limitation on the rights of defendants under sections 24(1) and 25(2) is justified for the following reasons, having regard to section 7(2) of the Charter.

The amendments to section 284 are necessary because the current limitation period provided for does not account for circumstances in which there is a delay in reporting and investigation of alleged offences such as child abuse or failing to protect children from harm and hazards. For example, the Royal Commission into Institutional Responses to Child Sexual Abuse found that it takes an average of 24 years for survivors to disclose childhood abuse. Consequently, statutory time limits are increasingly being removed for certain historical sexual offences against children (e.g. Crimes Amendment (Sexual Offences and Other Matters) Act 2014 (Vic), which amended the Criminal Procedure Act 2009 (Vic)).

Delays in reporting of complaints by alleged victims and their parents is further compounded if there are delays in reporting by approved providers to the Regulatory Authority, and delays arising from alleged offences being reported to law enforcement in the first instance, such that the Regulatory Authority is only notified of the alleged conduct at a later date.

Additionally, criminal proceedings take precedence over regulatory proceedings and often continue for years, particularly where there are multiple allegations. Therefore, if the 2 year limitation period commences from the date of the alleged offence or from when the Authority became aware of the alleged offence, the Regulatory Authority may be time-barred from commencing proceedings where it was required to suspend taking action in relation to the alleged offence because of a concurrent investigation or proceedings in relation to the same conduct under another Act. Therefore, the ‘stop the clock’ amendment of s 284 ensures that the Regulatory Authority is not unfairly prevented from prosecuting serious breaches simply because another investigation or proceeding is underway.

Additionally, under the National Quality Framework, the Regulatory Authority has experienced an increased volume of complaints, particularly sexual abuse or assault allegations. Further, there are complexities involved with investigating and preparing legal action for offences under the National Law, as compared with other summary offences.

Accordingly, these amendments will provide Regulatory Authorities with more time in which to investigate the complex and numerous complaints they receive, thereby facilitating a safer environment for children receiving education and care services.

The offences in the National Law are important to child safety so as to justify the extension of the limitation period and introduction of the ‘stop the clock’ mechanism. Further, I consider the nature and extent of the impact on rights to be limited by the following factors:

•   the majority of prosecutions brought under these provisions are brought against entities who are not natural persons and do not have human rights;

•   the ceiling of the proposed limitation period is limited to offending committed on and after 1 January 2012, when the National Law commenced operation;

•   the severity of penalties is limited to pecuniary penalties and does not extend to imprisonment;

•   prospective defendants are persons who have assumed special roles with corresponding obligations to be able to demonstrate their compliance with the National Law; and

•   to the extent that the conditions of a particular case are such that an accused is unable to enjoy a fair hearing or their criminal process rights, the courts retain their discretion to stay an unfair prosecution (such as due to an unreasonable delay in commencement, the unavailability of key witnesses or the deterioration of exculpatory evidence).

Accordingly, I consider this provision strikes the appropriate balance between competing rights, and that any limits on fair hearing or criminal process rights are reasonably justified under s 7(2).

Related provider determinations

Clause 64 of the Bill inserts new sections 5B to 5D inclusive into the National Law which introduce the concept of ‘related providers’. These provisions establish a framework for identifying providers who are interrelated by way of ownership, shareholding or shared management, or control or influence arrangements and empower the Regulatory Authority to make a related provider determination where such relationships exist.

Clause 65 then inserts new s 13(2A) into the National Law that provides that in determining whether a person is a fit and proper person to provide education and care services, the Regulatory Authority may have regard to a related provider’s history of compliance with the National Law and relevant current and former laws of participating jurisdictions, and various other matters including their criminal history and financial status. The Regulatory Authority may have regard to these matters if it is satisfied that there is a systemic risk to the safety, health or wellbeing of a child or children being educated and cared for by an education and care service proposed to be operated by the applicant or that is already operated by a related provider, or that there is a systemic risk of the applicant or a related provider contravening the National Law or the national regulations. New s 5D provides that in determining whether a risk is a ‘systemic risk’, the Regulatory Authority may have regard to various factors, including the nature of the risk and whether the risk is shared between an approved provider and any related provider.

Further clauses similarly amend the National Law so that the Regulatory Authority may take into account the conduct of a related provider in making decisions that concern an applicant for provider or services approval, or an approved provider. These actions may be taken if relevant grounds and the systemic risk threshold are met in respect of the related provider, and the action is reasonably necessary to address the systemic risk.

Clause 66 inserts new s 23(2A) into the National Law which provides that the Regulatory Authority may amend an approved provider’s approval, or vary or impose a condition on their provider approval if it is satisfied that the systemic risk threshold has been reached either in respect of the approved provider or by a related provider of the approved provider, and the amendment of, variation or imposition of a new condition on the approval is reasonably necessary to address the systemic risk.

Clause 67 inserts new s 25(2) into the National Law which provides that the Regulatory Authority may suspend the provider approval of an approved provider if various grounds apply to a related provider of the approved provider and the systemic risk threshold is reached in respect of the approved provider or their related entity, and the suspension is reasonably necessary to address the systemic risk. Clause 69 of the Bill then inserts new s 31(2) into the National Law which operates similarly to clause 67 to allow the Regulatory Authority to cancel an approved provider’s provider approval if various grounds apply to the related provider and the systemic risk threshold is met in respect of that approved provider or a related provider.

Clause 71 then inserts new s 47(2A) into the National Law which provides that the Regulatory Authority may have regard to the history of compliance of a related provider of an applicant for service approval in making a determination regarding the application if the systemic risk threshold applies to the applicant or a related provider. Clause 72 then provides that the Regulatory Authority may refuse to grant a service approval because of one of the systemic risk grounds found in new s 47(2A). Clause 73 also allows the Regulatory Authority to amend, vary a condition or impose a new condition on a service approval held by an approved provider if the systemic risk threshold is met by the approved provider or their related entity.

Clause 74 of the Bill inserts new s 70(2) into the National Law which provides that the Regulatory Authority may suspend an approved provider’s service approval if various grounds apply to a related provider of the approved provider and the systemic risk threshold is reached in relation to the approved provider or their related entity. Clause 76 then inserts new s 77(2) to allow the Regulatory Authority to cancel a service approval of an approved provider if various grounds apply to a related provider and the systemic risk threshold is reached in relation to the approved provider or their related entity.

Finally, clause 77 inserts new s 90(ab) that provides that the Regulatory Authority must consider the history of compliance with the National Law of a related provider of an applicant for a service waiver, in deciding whether the grant of a service waiver is appropriate.

These amendments, in providing for the making of a related provider determination, and allowing the Regulatory Authority to make decisions that affect the rights of approved providers or applicants for provider or service approval or a service waiver, based in part on the conduct of another entity, may engage the rights to freedom of association (s 16) and fair hearing (s 24).

Freedom of association

Section 16(2) of the Charter relevantly provides that every person has the right to freedom of association with others, including protection from adverse treatment on the basis of a person’s associations.

In allowing the Regulatory Authority to make decisions regarding whether a person is a fit and proper person to provide education and care services (clause 65), or to make decisions regarding provider or service approvals or the grant of a service waiver, in part on the basis of the conduct of a related provider, the provisions may engage the right to freedom of association under s 16 of the Charter. While in many cases, the ‘provider’ captured by these provisions will not be a natural person with human rights, there may be instances where an approved provider or applicant is a natural person. As the Bill mandates a factor in the Regulatory Authority’s decision-making process to be the association or relationship of that person with a related provider (who may be a corporate entity or another individual) and the conduct of that related provider - this could interfere with that person’s freedom of association, to the extent to which they are subject to adverse treatment under the scheme by way of their association.

The right to freedom of association has been interpreted to protect both private and public associations, including the right to associate with other individuals. In my view, the associations of related providers, being a relationship based on corporate ownership or some other company structure, is not likely to be something that comes within the type of protected associations to which this right is concerned.

However, if a broad view is taken and the right is considered to be interfered with or limited by these provisions, I consider any limit to be reasonably justified. The intention behind the provisions is to ensure that the Regulatory Authority can maintain proper oversight and intervene appropriately where systemic risks arise across groups of interrelated providers. This includes situations where a current or past education or care provider, with a history of breaching the National Law, acquires, manages or otherwise exerts control or influence over another provider and in so doing, potentially poses a risk to the safety, health or wellbeing of children attending services operated by that other provider. It is necessary to ensure that relevant considerations of risk are properly taken into account and that evidence of prior compliance breaches or bad character that can be attributed to a provider, or may influence a related provider, are not obscured by corporate structures. Finally, I note that a fit and proper person scheme that takes into account the conduct and compliance history of associated entities is commonly provided for in regulatory schemes that safeguard against serious risks to public safety and wellbeing.

In this context, I consider that these provisions are compatible with the right to freedom of association.

Fair hearing

Section 24(1) of the Charter relevantly provides that 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.

If a broad reading of the fair hearing right is adopted and the right is taken to encompass the administrative decision-making of the Regulatory Authority in respect of related provider determinations and other decisions such as to suspend or cancel a provider approval, insofar as these decisions affect an approved provider that is a natural person, the right may be interfered with. Generally, the fair hearing right is concerned with the procedural fairness of a decision, which in the context of these types of administrative decisions, requires prior notice of a decision, information to interested parties that may be relevant to a decision, and giving them a ‘reasonable opportunity’ to present their case and respond to adverse information. The right of review of such a decision may also cure any adverse impacts on procedural fairness in the first instance decision.

The related provider determinations in new s 5C of the National Law do not in themselves affect rights, but once a determination is made, information concerning a related provider may then be used in decisions that affect the rights of approved providers or applicants for approvals. However, clause 64 includes the requirement to provide notice of the determination to the affected approved provider or applicant, in addition to reasons for the determination. While the decision to make a determination is not subject to the internal or external review processes in Part 8 of the National Law, an affected person would have the right of judicial review.

Further, the review pathways remain unchanged for the substantive decisions of the Regulatory Authority that will now have regard to systemic risk information of relevant providers, including refusals to grant a provider approval, decisions relating to approval conditions, and decisions to suspend or cancel a provider’s approval. These decisions also remain subject to the current notice provisions in the National Law, and the decisions to suspend or cancel provider and service approvals may only be made following a ‘show cause process’ which allows affected approved providers the opportunity to make submissions in relation to any aspect of the Regulatory Authority’s decision, including in relation to related provider status or the existence of a systemic risk. A person who is the subject of a decision may then apply to the Regulatory Authority for an internal review of the decision under current Part 8 of the National Law, and subsequently to review by VCAT under Part 8 of the National Law.

In light of the procedural fairness safeguards that are already in place in the National Law, and the notice and reasons provisions for related provider determinations in clause 64, I am satisfied that the right to fair hearing under s 24 of the Charter is not limited by clauses 64 to 77 of the Bill.

Child protection and child safety training

Clause 78 substitutes s 162A and inserts new s 162B into the National Law, which relate to the requirement that an approved provider of an education and care service must ensure various employees undertake child protection and child safety training respectively. New s 162A now includes an offence provision for non-compliance with the requirement to implement child protection training, which includes a pecuniary penalty, and new s 162B introduces a new requirement that providers roll out child safety training, with an offence provision and pecuniary penalty for non-compliance.

The strengthening of the child protection and child safety training requirements promotes the protection of children under s 17(2) of the Charter, by in effect, imposing a positive duty on providers to ensure relevant staff have adequate training to enable them to keep children in their care safe.

New offence of ‘inappropriate conduct’

Clause 79 of the Bill inserts new section 166A, which introduces offences relating to inappropriate conduct. These offences include that an approved provider must ensure that no child is subjected to conduct that a reasonable person would consider to be inappropriate in an education and care service, and that a nominated supervisor of an education and care service must ensure that no staff member or volunteer subjects a child to inappropriate conduct. New section 166A, and especially subsection (8)(a)(ii), (iii) and (iv), promote section 17(2) of the Charter by providing that the circumstances relevant to whether a reasonable person would consider conduct to be inappropriate in an education and care service include whether the conduct is likely to cause or result in harm (including emotional, psychological or physical harm) or injury to a child, the child’s age and stage of development and whether the conduct is sexual, aggressive or violent.

Regulating use of devices in education and care services

Clause 81 of the Bill inserts new Part 6A, which regulates the use of devices in education and care services. New sections 175B and 175C respectively permit approved providers to supply a device for use in an education and care service and authorise a device for use in family day care services exclusively for the purposes of providing education and care to children as part of that service. New Part 6A introduces the following further sections and provides for safeguards aimed at enhancing child safety, including:

•   that, in authorising a device under new section 175C(1), an approved provider must ensure that the device is configured to operate in accordance with any policies or procedures of the family day care service that relate to child safety or the security of devices (new section 175C(2));

•   requiring approved providers and nominated supervisors of an education and care service to take every reasonable precaution to ensure that only service-supplied devices to capture or transmit an image of a child being educated or cared for by the service (new section 175D);

•   requiring approved providers and nominated supervisors of a family day care service to take every reasonable precaution to ensure that only service-authorised or service-supplied devices are used to capture, store or transmit an image of a child being educated or cared for by the service (new section 175E);

•   providing for offences relating to capturing, storing or transmitting images of children not using a service-authorised or service-supplied device (new section 175F);

•   requiring approved providers and nominated supervisors of an education and care service to take every reasonable precaution to ensure that while each nominated supervisor, staff member or volunteer is working directly with children as part of the service, the person does not have a personal device in their possession or control (new section 175H); and

•   prohibiting nominated supervisors, staff members of, and volunteers at, an education and care service from having a personal device in their possession or control (new section 175I).

These provisions are relevant to the rights to privacy, expression and property.

Right to privacy

The regulation in education and care services of devices which can capture, store or transmit images will be relevant to:

• a child’s right to privacy in section 13(a) of the Charter, to the degree that the right includes entitlement to control over a person’s image and informational privacy; and

• the right to privacy in section 13(a) of a person working in an education and care service, to the degree that the right includes their individual and social identity, autonomy, personal relationships and capacity to experience a private life.

The right to privacy has been interpreted broadly by the courts to include protection of a person’s physical and psychological integrity, their individual and social identity and their autonomy and inherent dignity. However, I consider that any interferences with the right to privacy are not unlawful or arbitrary.

In respect of a child’s right to privacy, the National Regulations already require documentation of children’s learning and participation in an educational program (which is typically achieved by digital images and videos). The amendments inserted by clause 81, including requirements to use service-supplied and service-authorised devices to capture, store or transmit an image of a child, and the prohibition on the control and possession of personal devices, promotes and protects a child’s right to control over their information privacy.

In respect of the right to privacy of a person working in an education and care service, prohibiting a person’s possession or control of their personal device while working directly with children may interfere with a person’s individual and social identity, including their personal relationships and capacity to experience a private life. In my view, any interference is proportionate to the legitimate aim of protecting the safety of children. In particular, any limitations on the use of personal devices are confined to circumstances when a person is working directly with children as part of an education and care service, which excludes when a person is on a short break from providing that education or care. Further, clause 81 provides for exceptions, including when possession or control of the personal device is necessary for the purposes of communicating with a family member, for example.

Freedom of expression

Restricting use of a personal device is relevant to freedom of expression, which encompasses the freedom to impart information of all kinds, including by way of images and using a personal device for communication. For the reasons explained above, I consider that any limitation on a person’s right to freedom of expression under section 15(2) of the Charter, which encompasses expression in any medium, to be justified to respect and promote children’s rights under section 17(2). Clause 81 of the Bill does this by, and is justified for the legitimate purposes of:

•   making it more difficult for individuals providing education and care to use their personal device to generate inappropriate digital content relating to children attending education and care services;

•   reducing the potential risk that images or videos of children (including inappropriate content) will be distributed, intentionally or unintentionally; and

•   giving approved providers greater oversight of the nature and quality of the digital content being produced in their services, as well as their appropriate storage and disposal.

Right to property

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 common law, are confined and structured rather than unclear, are accessible to the public, and are formulated precisely.

By restricting people working directly with children from using, controlling or being in possession of their personal devices while doing so (and the enjoyment of their property rights), new sections 175H and 175I engage section 20 of the Charter. Section 20 provides that a person must not be deprived of their property other than in accordance with law. The right is understood to protect deprivations of the use or benefit of property, which would include quiet enjoyment of personal devices. For deprivation of a person’s property to be ‘in accordance with law’, as required by section 20, the legal authorisation for the deprivation must be clear and certain, publicly accessible and it must not operate arbitrarily.

I consider that new Part 6A satisfies these requirements under the Charter, and note that this right would generally not extend to protect against reasonable restrictions on the use of personal property while at a workplace, where there is a legitimate purpose for doing so. Further, it sets out the following exceptions, allowing the use of personal property in legitimate circumstances, including for example:

•   when an authorisation has been given by an approved provider under new section 175J;

•   when children are being transported by the service, and the possession or control of the personal device is necessary for the purposes of safety or the provision of education and care to the children;

•   use in an emergency; or

•   providing support or assistance with a person’s disability or health needs (thereby also promoting the protection against discrimination in section 8 of the Charter).

Accordingly, I am satisfied these provisions are compatible with the Charter rights to privacy, expression and property.

Compliance directions and compliance notices

Clauses 82 and 83 of the Bill amends sections 176 and 177 of the National Law, respectively, to empower the Regulatory Authority to issue directions or notices to an approved provider of the education and care service. The proposed sections will require the approved provider to take the steps specified in the direction or notice if there is a systemic risk of:

• to the safety, health or wellbeing of a child being cared for by an education and care service operated by the approved provider or a related provider of the approved provider, or

• the approved provider or related provider contravening the National Law or regulations, and

• the direction or notice is reasonably necessary to address the risk.

Clauses 82 and 83 may engage the right to freedom from forced work by inserting provisions which require an approved provider to undertake acts that the Regulatory Authority reasonably considers necessary to mitigate the risk to child safety, or to address a contravention of the National Law.

Freedom from forced work

Section 11 of the Charter provides that a person must not be made to perform forced work or compulsory labour. ‘Forced or compulsory labour’ relevantly does not include work or service that forms part of normal civil obligations. While the Charter does not define ‘normal civil obligations’, comparative case law has considered that to qualify as a normal civil obligation, the work or service required must be provided for by law, must be imposed for a legitimate purpose, must not be exceptional and must not have any punitive purpose or effect. This would include obligations to undertake work in order to maintain compliance with regulatory standards, particularly where those standards are to protect against risks to vulnerable persons whose safety and wellbeing are reliant on the compliance of others. It would also include obligations assumed as a result of a person’s voluntary assumption of regulated roles.

I am of the view that, if the right is engaged, acts or steps required under a notice or direction to address systemic risks to child wellbeing or a contravention of the National Law would form part of normal civil obligations (here, where there is a duty of care over children in the care of the approved provider or a related provider of the approved provider) and would, therefore, not constitute a limit on the right. A notice or direction requiring the undertaking of steps will be provided in accordance with the National Law and will be confined in its impact, in that the direction or notice must be necessary to protect the safety, health or wellbeing of a child (in contrast to being issued for a wide, undefined purpose). As discussed above, the Bill protects children by ensuring that directions or notices require specific acts to be done in order to promote the safety and wellbeing of children.

As such, I consider that these clauses are compatible with the right to freedom from forced work.

Directions to suspend, supervise, or complete training inserted

Clause 84 inserts new sections which empower the Regulatory Authority to issue notices to direct approved providers of a service if it is satisfied that the conduct or inadequacy of the education and care provided by a relevant staff member or volunteer results in a contravention of the National Law or risks the safety, health or wellbeing of children cared for by the service. These notices concern the following compliance measures:

• Section 178A allows the Regulatory Authority to issue notices to direct the suspension of an education and care by a staff member (other than a family day care educator), or volunteer;

• Section 178B allows the Regulatory Authority to issue notices to direct the suspension of education and care by a nominated supervisor;

• Section 178C allows the Regulatory Authority to issue notices to direct supervision of a staff member (other than a family day care coordinator), or volunteer;

• Section 178D allows the Regulatory Authority to issue notices to direct a nominated supervisor to complete training; and

• Section 178E allows the Regulatory Authority to issue notices to direct a staff member or volunteer to complete training.

A contravention of either of these notices results in a pecuniary penalty.

A ‘show cause notice’ may be given before a notice under either of the above provisions is issued, which can include the reasons for the proposed direction and allows the provider to make submissions to the Regulatory Authority in respect of the proposed direction. There is a discretionary exception to the requirement to give a ‘show cause notice’ concerning where the Regulatory Authority is reasonably satisfied that there is an unacceptable risk to the safety, health or wellbeing to the child, and the notice is necessary to protect the safety, health or wellbeing of the child or children.

Freedom from forced work

As we discussed above in relation to compliance directions and notices, obligations or directions to undertake work (here being workplace training, suspending or supervising a staff member) in order to maintain compliance with regulatory standards may engage the right to freedom from forced work. However, I am of the view that, if this right is engaged, undertaking these activities and imposing conditions on workers or carers who provide education and care services forms part of ‘normal civil obligations’. Further, notices of this nature serve an important purpose of addressing and reducing the systemic risk of harm to the safety, health and wellbeing of children, which supports the overall aim of the Bill.

Right to privacy

Further, a potential restriction on employment, by way of issuing a notice to suspend or supervise a staff member, may also engage the right to privacy. If a restriction on employment sufficiently affects an individual’s personal relationships at work and capacity to experience a private life, this 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. Generally, a condition that someone be subject to supervision in an employment setting would not be considered to be of a requisite gravity of interference to engage the right, given the lower expectation of personal privacy in a workplace setting and that such a condition would not preclude a person from continuing to work. In my view, such a notice is a proportionate, temporary measure to achieve the important purpose of protecting children in education and care services. The inclusion of a provision to allow ‘show cause notices’ in most circumstances and the opportunity to provide submissions in response also acts as a safeguard to ensure that any proposed notices are appropriate and proportionate.

Presumption of innocence

The above sections may engage the right to be presumed innocent until proven guilty under section 25(1) of the Charter, to the extent that the Regulatory Authority proposes to treat a person adversely on the basis of suspected contraventions of the National Law  which could also constitute allegations of criminal offending. In my view, the right is not limited, as the right is primarily concerned with preventing punishment of an accused prior to any finding of guilt.

While it is an offence not to comply with a notice, a notice directing a relevant person to suspend providing education and care does not itself affect criminal proceedings relating to the person. Nor does it presume that person to be guilty of an offence. Rather, it is a preventative measure which protects children where the Regulatory Authority is reasonably satisfied that there is a risk to the safety, health or wellbeing or children. Prior to any direction to suspend providing education or care, the Regulatory Authority may issue a show cause notice and then consider written submissions from the person. The Regulatory Authority can only issue a notice without giving a show cause notice where it is reasonably satisfied that there is an immediate risk to the safety, health or wellbeing of a child and the notice is for the protection of those children. Further, the substantive effects of these compliance measures, being suspension from work, supervised employment or requirements to undertake further training, are not punitive in nature nor possess the character of criminal sanctions.

I therefore consider that the new sections are compatible with the right to be presumed innocent under section 25(1) of the Charter.

Fair hearing

The discretion of the Regulatory Authority to not issue a show cause notice under certain circumstances, and proceed to issue a notice under the above sections, may engage the right to fair hearing (if a broad reading of fair hearing is adopted and the right is taken to encompass the decision-making procedures). This is on the basis that a provider or person to whom a notice applies to will not be able to make submissions in response to a show cause notice to answer the allegations against them before an immediate notice under the above provisions is made.

However, I consider that the limit is reasonably justified under s 7(2) of the Charter, given the discretion to not issue a show cause notice may only be exercised where there is an immediate risk to a child’s wellbeing, safety or health and an immediate notice under the new provisions is necessary to protect the safety, wellbeing or health of a child. This is a reasonable balance between the competing rights of fair hearing and protection of children - with the requirements of a finding of immediate risk and the necessity of an immediate notice being legitimate and reasonable circumstances under which to abrogate fair hearing rights.

Further, I note that the Bill provides (in clause 92) that each decision made under new sections 178A to 178E is subject to internal review (as well as the decision to direct an approved provider of a family day care service to suspend the provision of education and care by a family day care educator under existing section 178). The person who conducts the internal review for the Regulatory Authority must not be a person who was involved in the assessment or investigation of the person or service to whom or which the decision relates.

Further, pursuant to section 192(a) of the National Law and the amendments made to section 190 by clause 92, the decisions made under new sections 178A-178E, and the decision to direct an approved provider of a family day care service to suspend the provision of education and care by a family day care educator will be subject to external review.

I am satisfied the above framework is compatible with the Charter rights to freedom from force work, privacy, presumption of innocence and fair hearing.

Prohibition notices for related providers

Clause 89 inserts a new sub-section in section 182 of the Act to empower the Regulatory Authority to give a prohibition notice to an approved provider if a related provider of the approved provider is subject to a prohibition notice under s 182 and the Regulatory Authority is satisfied that there is a systemic risk in relation to the approved provider or the related provider and the notice is reasonably necessary to address the risk. Clause 90 amends section 185 of the Act to refer the new sub-section, allowing section 185 to apply to a related provider of an approved provider.

A prohibition notice under section 185 may state that a person is prohibited from providing education and care to children, being engaged as an educator or staff member at an education and care service, and carrying out any other activity relating to an education and care service. Clause 91 also amends section 187 of the Act to refer to the new sub-section, which will subject approved providers to penalties if fail to comply with a prohibition notice in respect of a related provider of the approved provider.

As discussed above, the restriction on employment may engage the right to privacy, as prohibition from employment may affect an individual’s personal relationships at work and capacity to experience 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.

The prohibition notice can only be given to related provider where the Regulatory Authority is satisfied there is a systemic risk (as defined by the amendments to the National Law in new section 5D) and the notice is reasonably necessary to address that risk. The Regulatory Authority must also issue the notice in accordance with the existing ‘show cause’ scheme provided for in the National Law, as I have already discussed above, and a decision to give a prohibition notice is subject to external review.

Investigation and determination powers  powers of entry and powers to request information

Clauses 94 to 97 concern the powers of entry of authorised officers in Division 2 of Part 9 of the Act into premises where care and education services are provided:

• Clause 94 inserts new section 197A, which allows an authorised officer to enter a family day care service premises (including the area outside of a family day care residence, whether or not that area is used to provide education and care to children as part of the service) during ordinary business hours if they reasonably believe it is necessary to assess or monitor compliance of an approved provider of a family day care service with any prescribed requirement in relation to the safety, health and wellbeing of children. An authorised officer may do so with the consent of the occupier of the premises, and may undertake an inspection of the premises, photograph or film or make audio recordings, take documents or things, or question people at the premises;

• Clause 95 amends section 199 of the Act to specify that authorised officers may enter the premises of any related provider of the approved provider of the approved education and service, but also inserts sub-section 199(5) which requires that an authorised officer must not enter such a premises unless they are satisfied that there is a systemic risk in relation to the approved provider, and such entry is reasonably necessary to address the risk.

• Clause 96 inserts new section 199A, which allows an authorised officer to enter the family day care service premises (including any area outside the residence, whether or not that area is used to provide education and care to children as part of the service) during ordinary business hours with the consent of the occupier to undertake investigatory and search actions (e.g., searching the premises, requiring information from persons on the premises). Prior to entry being effected, the authorised officer must advise the occupier of the premises of the entry and the powers that may be exercised. An occupier of a family day care service premises must not unreasonably refuse to provide consent to an authorised officer who is exercising their powers  failure to do so results in a pecuniary penalty,

• Clause 97 amends section 200 of the Act to allow an authorised officer to search documents or other evidence relevant to an offence if they are present at any of the prescribed locations if the authorised officer is satisfied that there is a systemic risk in relation to the approved provider and entry is reasonably necessary to address the risk. Further, clauses 98 to 103 amend the powers to request information under the National Law:

• Clause 98 inserts section 206B, which allows an authorised officer, by written notice, to require a former provider to provide any relevant information (including documents and evidence) specified in the notice for the purposes of a related provider determination.

• Clause 100 inserts three new sections into the Act in relation to the powers of the Regulatory Authority to request information:

•   Section 216A empowers the Regulatory Authority, by written notice, to obtain information, documents and evidence from an approved provider for the purpose of making a related provider determination;

•   Section 216B empowers the Regulatory Authority, by written notice, to obtain information, documents and evidence from a specified person at an education and care service for the purposes of a related provider determination; and

•   Section 216C provides that an approved provider who is a related provider must provide information to the Regulatory Authority about an arrangement entered into by the approved provider relating to the provider’s governance or the operation of an education and care service by the provider, and/or prescribed information relating to the approved operator’s ownership or operation. Failure to do so results in a pecuniary penalty.

Accordingly, clause 99 amends s 211(2)(c) of the National Law to protect persons from incrimination in respect of new sections 216A and 216B. Similarly, clause 101 amends section 217 to make it an offence to fail to comply with sections 216A and 216B, clause 102 makes it an offence to hinder or obstruct the Regulator Authority upon a request to provide information under section 216A and 216B, and clause 103 amends section 219 to make self-incrimination not an excuse for a failure to provide information requested under sections 216A and 216B.

Right to privacy

Each of the clauses listed in the above paragraphs engage the right to privacy in section 13(a) of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy, family, home or correspondence. In particular, sections 197A and 199A may constitute a significant increase in privacy intrusion, given that existing sections 197 and 199 only permit entry into the service premises, being the areas where education and care are provided, while the new powers enable entry into any or all parts of the property, including private areas of the residence and wider property (i.e. sheds, outdoor spaces) where family day care services may not be offered.

While the powers, as expanded by the clauses listed above, may involve interference with a person’s privacy (and entry into a person’s home, in the context of a family day service), these powers are necessary to ensure that authorised officers have suitable powers of entry to monitor compliance and investigate suspected offences, for the protection of children’s safety, and the Regulator is able to effectively regulate and respond to systemic risks to the safety, health or wellbeing of children due to the conduct of related providers.

The powers, including the powers in new sections 197A and 199A, are also subject to various safeguards including graduated powers of entry for monitoring compliance (e.g. ensuring emergency exists are accessible) or investigating offences, which are directly linked to necessity and gravity. The entry for monitoring and investigating offences is qualified to only authorising entry to be performed during day time hours and with consent, and in the context of a family day care service, only while the family day care services is operating. Entry for a business premises is predicated on reasonable suspicion of possible offences against the National Law, and satisfaction that the entry is reasonable necessary to address a systemic risk in relation to the approved provider.

Freedom of expression

By compelling a person to impart information, particularly in relation to the new powers to compel provision of information for the purpose of related provider determinations, clauses 94 to 103 also engage the right to freedom of expression in section 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 Authority can make effective related provider determinations to protect the rights of children in an education and care service. The powers are limited to obtaining information, documents and evidence from specified persons and that are relevant to a determination about a related provider.

Property rights

The power of authorised officers to seize any document or thing from a prescribed premises if they believe on reasonable grounds that the seized document or thing is relevant to the monitoring compliance with the National Law (pursuant to section 197) under Division 2 of Part 9 may also engage section 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 an authorised officer to regulate their conduct. In addition, any deprivation of property is reasonably necessary to achieve the important objective of protecting the rights of children in an education and care service.

For the same reasons, the expanded scope of an authorised officer’s or the Regulatory Authority’s powers to obtain information, documents and evidence for the purposes of monitoring compliance with the National Law and making related provider determinations under the National Law do not limit section 20 of the Charter.

Right to not self-incriminate

Clause 103 is relevant to the right to protection against self-incrimination, by extending the existing abrogation of the privilege against self-incrimination, provided for in the National Law, to apply to the new information-gathering provisions in sections 216A and 216B concerning obtaining information, documents and evidence from specified persons at education and care service providers for the purposes of a related provider determination.

The existing provisions in the National Law partially abrogate the privilege against self-incrimination by removing the availability of an excuse for self-incrimination, but afford protection to a person by providing that any disclosed information is not admissible in any criminal proceedings or any civil proceedings (with the exception of a prosecution for obstructing or hindering the Authority, or giving false or misleading information). This protection is not afforded to any documents required to be kept under the National Law, which remain admissible.

I refer to the justification advanced for this scheme in the original Bill of the National Law, which concluded that this partial abrogation of the privilege was compatible with the right, having regard to:

• the important purpose of ensuing the regulatory regime could be adequately monitored and enforced, in order to give effect to the best interests of children;

• the limited application of the provision to persons who voluntarily participated in the provision of education and care services;

• the recognition at common law that the privilege against self-incrimination was more readily abrogable in the context of pre-existing documents that are required to be kept for the purpose of demonstrating compliance with a regulatory scheme; and

• the difficulties of proceeding with any prosecutions for breaches of regulatory obligations if such records were not required to be produced, or deemed inadmissible.

I consider the extension of this framework to the new information gathering powers at sections 216A and 216B to be consistent with the above reasoning. The provision of such information is necessary in order for related provider determinations to be made, which ultimately seek to protect children, and the limited privilege against self-incrimination is appropriate for this context.

National Early Childhood Worker Register

Clause 107 of the Bill inserts new Division 4A of Part 13 in the Schedule to the National Law. This division deals with the National Early Childhood Worker Register (NECW Register). New section 269B in Division 4A provides that the National Authority must establish and maintain the NECW Register which is to hold specified information about all education and care service workers whom are defined in new section 269A to include nominated supervisors, staff members and volunteers at an education and care service.

In accordance with section 269B(2), the NECW Register may include the full name, any alias name or former name, the address, telephone number and date of birth of all education and care service workers, and in relation to each education and care service where the education and care service worker is or has been employed, engaged or appointed: the name of the service; the person’s role at the service; the date that the person was employed, engaged or appointed in or for the service, and the date the person ceased to be employed, engaged or appointed in or for the service (if applicable). The NECW may also include any other prescribed information.

New section 269C provides that the National Authority may, for the purposes of establishing and maintaining the NECW Register, use any information on the register of approved providers kept by the National Authority in accordance with section 266 of the National Law, and may access and use any information on the registers kept by the Regulatory Authority and relevant approved providers in accordance sections 267 and 269 of the National Law.

New section 269D deals with access to NECW Register and subsection (1) provides that the National Authority is authorised to access the NECW Register for the purposes of maintaining the Register and performing any other functions of the National Authority. Section 269D(2) provides that the Regulatory Authority is authorised to access the NECW Register for the purposes of performing its functions under the National Law.

Section 269D(3) provides that approved providers are authorised to access the NECW Register to provide information to the National Authority in accordance with section 269E which requires all approved providers to give, or to update, the information stipulated in section 269B(2) to the National Authority within the prescribed time after an education and care service worker is employed, engaged or appointed at the service, or the approved provider becomes aware of a change to an education and care service worker’s information. A failure by the approved provider to provide the stipulated information within this timeframe, imposes a criminal penalty on the approved provider.

New sections 269F and 269G provide that the National Authority may collect for the NECW Register, information from stipulated entities and use that information for the purposes of maintaining the Register and performing its functions under the National Law. The National Authority may also disclose this information for reasons specified in section 269G(3) to relevant Commonwealth, State or Territory Government Departments, public and local authorities, as well as the Regulatory Authority.

New section 269H deals with the collection, use and disclosure of information on the NECW Register by the Regulatory Authority. The provision provides that Regulatory Authority may collect and use the information on the NECW Register for the purposes of performing its functions under the National Law. Section 269H(2) and (3), much in the same way as section 269G(2) and (3), governs to whom and for what purposes information retrieved from the NECW Register may be disclosed.

Right to privacy

The establishment of the NECW Register and the National Authority’s power to collect and use education and care service workers’ information to perform its functions is relevant to the right to privacy, as the information contains personal identifiers of an individual, their employment status and their employment history. Similarly, the National Authority’s ability to disclose this information to the Commonwealth, State and Territory departments and specified authorities as set out in section 269G(2) and for the purposes set out in section 269G(3) also engages the right to privacy. In the same vein, the ability of the Regulatory authority to, in accordance with section 269H, collect, use and disclose the information in the NECW Register is also relevant. The fact that the information is shared outside of Victoria in the form of a National Register is also relevant to assessing the impact on the right.

However, any interference with the right to privacy are not unlawful or arbitrary. The interference with privacy is authorised under the National Law and information to be included in the NECW Register is clearly set out in the National Law and is limited to basic personal information (e.g. name and date of birth), employment history and any information prescribed in the National Law Regulations. Access to the information held in the NECW Register is limited to the National Authority and the entities, and for the purposes, listed in new sections 269G and 269H. The sharing of the information held in the NECW Register serves the objective of enabling the regulators, government bodies and authorities to effectively exercise their oversight, compliance and enforcement powers about the appropriateness of a person to work, or continue to work, with young children, and to ensure the safety of young children in the care of the education and care services sector. For example, the information sharing provisions enable the Regulatory Authority to ascertain the work history of a person against whom allegations are made, thereby identifying patterns of behaviour, which may lead to other alleged victims being discovered. The type of information are matters that a person choosing to engage in employment in a regulated sector would expect to provide to a regulator and to be shared to monitor compliance, being basic identifiers to verify their identity as well as their employment history in the sector.

Further, the NECW Register is established in response to recommendation 4 of the recent urgent review into child safety in the early childhood education and care settings which identified an urgent need to create a national register, hosted by the Commonwealth Government, covering all early childhood education and care staff across Australia who have regular contact with children, including casual staff. The establishment of the NECW Register has as its objectives to support providers in making safe recruitment decisions and to provide a protective mechanism for identifying persons whose history indicates that they pose a risk of causing harm to children if allowed to work in the ECEC sector. The national register creates visibility of predatory and unsafe individuals and prevents them from moving between jurisdictions. Further, the departments and authorities that may under Division 4A collect, use and disclose information held in the NECW Register, are all public entities obliged to handle the said information in accordance with the relevant Commonwealth, State and Territory privacy laws.

Accordingly, any impacts that the creation of a national register has on the right to privacy of persons working in the education sector are, in my view, appropriate and proportionate to the legitimate aim of protecting children across the ECEC sector in Australia. I therefore consider that Division 4A is compatible with the right to privacy in section 13 of the Charter.

Amendment to grounds for cancellation of provider approval

Clause 117 adds new section 16HAB to the ECSNL Act, which amends the application of section 31 of the National Law in Victoria by providing that the Regulatory Authority may cancel a provider approval if the provider has been deregistered under the Corporations Act 2001 (Cth), is under administration or liquidation or is in an association whose registration has been wound up, or has otherwise ceased to operate or exist.

Right to property and fair hearing

By amending the grounds for cancellation of provider approval in section 31 of the National Law, the Bill expands the grounds upon which the Regulatory Authority may exercise its powers to cancel provider approval.

While the loss of regulatory permission to participate in the sector as an approved provider is unlikely on its own to constitute a deprivation of property within the meaning of the right, the implications of such a cancellation can have implications for the enjoyment of private property rights of natural persons.

However, in this case, I consider such impacts to be negligible where the cancellation of approval is occurring where the provider has already ceased to operate or exist. Further, the amendments are formulated precisely and will be publicly available and accessible to those with provider approval and applicants for provider approval prior to their commencement. These amendments are not arbitrary (capricious, unpredictable, unjust or unreasonable), in the sense of being disproportionate to the legitimate aim sought. The amendments are to ensure that provider approval is cancelled in circumstances where a provider has ceased to operate or exist because of the circumstances outlined in section 16HAB. It will also occur in accordance with the existing provisions of the National Law, which provide for procedural fairness (in the form of a show cause notice and opportunity for the holder to give a written response to the proposed cancellation) and the right of external review to VCAT.

In conclusion, I do not consider that these amendments limit the rights to property or fair hearing.

Timing for responding to show cause notice before cancellation

Section 16HAC is added by clause 117 of the Bill. This new section provides that section 32(2) of the National Law applies in Victoria as if section 32(2)(c) provides that an approved provider provided with a show cause notice stating that the Regulatory Authority intends to cancel the provider approval, generally has 30 days after the notice to provide a written response, but that if the proposed cancellation is under new section 31(3), then the approved provider must give a written response within 14 days after the notice is given.

Fair hearing

If a broad reading of s 24(1) is adopted and it is understood that the fair hearing right applies to administrative decisions such as these, the provision of 14 days to respond to a show cause notice will be relevant to this right. I am the view that this specified time period affords a reasonable opportunity for an affected provider to respond to a notice that their approval is to be cancelled due to the fact that they have ceased to operate or exist because for the reasons specified above. These will be matters within the knowledge of a provider to respond to immediately. They are also matters which warrant the Regulatory Authority having a shorter show cause period upon which to act to safeguard public safety. I am satisfied these provisions are compatible with the right to fair hearing.

Suspension of revocation of rating while under investigation

Section 16HAF, added by clause 117, adds new section 138A to the National Law as it applies in Victoria. New section 138A provides that the Regulatory Authority may suspend ratings of approved education and care providers while the Regulatory Authority is investigating such an entity, if the Regulatory Authority is satisfied it is in the public interest. This new section also provides that, after the conclusion of the investigation, the Regulatory Authority may revoke or re-rate a rating level.

Presumption of innocence

This provision may engage the right under section 25(1) of the Charter to be presumed innocent until proven guilty according to law. However, in my opinion, this provision does not limit the right. It does not affect criminal proceedings relating to the person or entity. Nor does it presume that person or entity to be guilty. Rather, it is simply a preventative measure which helps to protect children from exposure to persons or entities being investigated. The purpose of the ratings system is to allow families to have access to information relating to the quality of early childhood education and care services so they can make informed choices about their child’s care.

The suspension is only in place while the investigation is being conducted and if the Regulatory Authority is satisfied it is in the public interest. I therefore consider that new section 138A is compatible with the right to be presumed innocent under section 25(1) of the Charter.

Offences for failure to display prescribed information and notify Regulatory Authority of alleged offences and misconduct

Section 16HAH is added by clause 117, it amends section 172 of the National Law to add subsection 172(3). This subsection adds the requirement for an approved provider of an education and care service to display its quality and compliance history for the service provided at the education and care service premises. Section 16HA is also added by clause 113 and amends the National Law as it applies in Victoria to add new section 174B. This provision provides for an offence for an approved provider for failing to notify the Regulatory Authority of any reportable sexual conduct committed by relevant staff members.

Freedom of expression

To the extent that this new subsection engages the right not to express oneself by compelling the display of information or notification an approved provider that is a natural person, I consider that it falls within section 15(3) of the Charter. In this case, the provisions are necessary to ensure the safety and wellbeing of children in education and care services by enabling the effective monitoring and enforcement of the regulatory standards. Accordingly, I consider that the provisions are compatible with the right to freedom of expression.

Right to privacy

While these provisions require the display of quality and compliance history at the approved provider’s premises and notification to the Regulatory Authority of alleged sexual offences and sexual misconduct committed by staff, I do not consider that they impose a limit on the right to privacy. This is because the quality and compliance history of a service provider is unlikely to consist of private information. To the extent there is any disclosure of personal information as a result of this new subsection, it will be lawful and not arbitrary, as it will only occur at the approved provider’s premises.

In relation to the notification of alleged sexual offences and sexual misconduct to the Regulatory Authority, this type of disclosure is consistent with the purposes of disclosure recognised by the Information Privacy Principles as being consistent with protection of privacy, being where disclosure is a necessary part of investigating unlawful activity or reporting concerns to a relevant authority.

Further, a person exercising functions under the National Law is subject to strict confidentiality requirements under s 273 of the National Law, and any disclosure of information that is outside that the current exceptions in s 273(2), may amount to an offence.

I therefore consider these provisions to be compatible with the right to privacy.

Notice directing certain persons to suspend providing education and care

New section 16HB is added by clause 118. This section amends the National Law as it applies in Victoria to add section 178BA. This provision provides that the Regulatory Authority may give notices directing certain persons to cease providing education and care services if it is reasonably satisfied that a certain specified person is not complying with any provision of the National Law or there is a risk to the safety, health or wellbeing of children being educated and cared for at an education and care service if certain persons continue to provide education and care at the education and care service. This section applies to the following persons at an education and care service: a nominated supervisor, staff member or a volunteer. Before giving such notice, the Regulatory Authority may give the person a show cause notice, and if a show cause notice is given, the Regulatory must consider any submissions from the person received within the show cause period. Equally the Regulatory Authority may give a person a notice without giving them a show cause notice if the Regulatory Authority is reasonably satisfied that there is an immediate risk to the safety, health or wellbeing of a child or children being educated or cared for by the person and the notice is necessary to protect the safety, health or wellbeing of the child or children. It is an offence not to comply with such a notice.

Further, the decision to direct a relevant person to suspend their provision of education and care under section 178BA is a reviewable decision for internal and external review under section 190 (see new section 16KB).

Presumption of innocence

In the same context as my discussion regarding clause 82 above, new section 178BA may engage the right to be presumed innocent until proven guilty under section 25(1) of the Charter, as a suspension notice may be given in relation to alleged contraventions of offence provisions of the National Law or other unlawful conduct constitute an offence.

However, in my view, and for the same reasons I gave above, the provision does not limit the right. While it is an offence not to comply with a notice, a notice directing a relevant person to cease providing education and care does not itself affect criminal proceedings relating to the person. Nor does it presume that person to be guilty. Rather, it is a preventative measure which protects children where the Regulatory Authority is reasonably satisfied that there is a risk to the safety, health or wellbeing or children. To limit such preventative measures to only occur after a finding of guilt or substantiated regulatory finding is not sufficient to prevent risks to children. It is critical that the Regulatory Authority is not fettered with regards to the matters it can take action to in relation to a dynamic assessment of risk.

Prior to any direction to a person to cease providing education or care, the Regulatory Authority may issue a show cause notice and then consider written submissions from the person. The Regulatory Authority can only issue a notice without giving a show cause notice where it is reasonably satisfied that there is an unacceptable risk to the safety, health or wellbeing of a child and the notice is for the protection of those children. I therefore consider that new section 178BA is compatible with the right to be presumed innocent under section 25(1) of the Charter. It also ensures, as I set above regarding the existing show cause provisions in the National Law, that any limits on the corresponding right to fair hearing are narrowly confined to circumstances where there would be an unacceptable risk to the child safety if procedural fairness was afforded in the circumstances.

Disciplinary action

New section 16KA (in clause 119 of the Bill) inserts new Division 3A into the National Law as it applies in Victoria. Under Division 3A, new section 188E provides that if the Regulatory Authority reasonably believes grounds for disciplinary action exist against a relevant person then the relevant person and the Regulatory Authority may agree on action to be taken or the Regulatory Authority may apply to the relevant Tribunal or court for the making of an order. New section 188F provides that a court or tribunal may, on application, make an order reprimanding the person, requiring them to pay a penalty payable to the Regulatory Authority or order that the person takes or refrains from taking certain actions to comply with the National Law or the Regulations.

Grounds for disciplinary action are that a person has contravened the National Law or the Regulations or that the person is a person with management or control of a body corporate which has failed to comply with the National Law or Regulations and the person with management or control has failed to exercise due diligence to prevent the failure (new section 188D). A relevant person for the purposes of these provisions is, in respect of an education or care service, an approved provider, nominated supervisor, person with management or control or a family day care educator engaged by or registered with such a service (new section 188C).

Fair hearing

The introduction of a disciplinary regime may be relevant to the right to fair hearing.

Following on from my above discussion about the scope of the fair hearing right – if a broad reading of s 24(1) is adopted and it is understood that the fair hearing right is engaged by these provisions, this right would nonetheless not be limited. The right to a fair hearing is concerned with the procedural fairness of a decision and 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. The entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Having the ability to take disciplinary action provides an important mechanism by which the Regulatory Authority can ensure relevant persons are complying with the National Law and the Regulations. Compliance with the National law and Regulations will work to protect the safety and welfare of children in education and care settings.

The disciplinary regime inserted by the Bill affords relevant persons procedural fairness given, failing agreement with the relevant person, the Regulatory Authority must apply to a tribunal or court for an order. This affords licence holders a hearing before an independent and impartial tribunal and satisfies the requirements in s 24(1) of the Charter.

As such, I conclude that the fair hearing rights in s 24(1) of the Charter are not limited by the provisions referred to above.

Publication of information

Clause 110 of the Bill inserts new section 16Q which amends section 270 of the National Law as it applies in Victoria to substitute subsections 270(5) to (7). New subsection 270(5) provides that the Regulatory Authority may publish information about enforcement action taken, or being taken, under the National law, including, amongst other things, details about compliance directions, compliance notices, suspension directions, emergency action notices, prohibition notices, prosecutions and suspensions or cancellations of provider or service approvals.

New subsection 270(6) provides that the Regulatory Authority may publish information about the matters in subsection 270(5) including information about the nature of enforcement action taken and the outcome, details of persons in relation to whom the enforcement action has been taken, the reason for taking enforcement action (including the breach or alleged breach), and any other information prescribed. Further, new subsection 270(7) provides that the information the Regulatory Authority may publish under subsection 270(5) about enforcement action does not include information that may identify, or lead to the identification of, a child.

The amendments provide the Regulatory Authority with the power to publish contextual information about its enforcement decisions. Publication of this information is limited in order to avoid the publication of information that may reveal the identity of a child. Further, the Regulatory Authority’s exercise of the power to publish the information specified must be about enforcement action taken, or being taken, under the National Law.

Right to privacy and reputation

The publication of information about enforcement action taken by the Regulatory Authority may involve identifying individuals and may negatively affect the reputation of those individuals.

In my opinion, any interference with the right to privacy and reputation resulting from the amendments to section 270 is neither unlawful nor arbitrary. The details of what may be published under amended section 270 are clearly outlined. Existing section 270 already provides for certain information about approved providers, approved education and care services and nominated supervisors to be published. The scope of amended section 270 will be a known condition of any providing a service under the National Law.

Further, the publication of information about enforcement action listed in amended section 270, including contextual information, is appropriate and limited to being or in connection with, enforcement action taken by the Regulatory Authority under the National Law. It will not include information that can lead to the identification of a child. This provision is precise and is appropriately tailored to ensuring compliance with National Law, protecting children and promoting transparency, and accordingly does not constitute an arbitrary interference with privacy or reputation. The publication of this information helps to ensure compliance with the National Law, which in turn protects the safety, health and wellbeing of children.

Protection from liability for good faith publication

Clause 110 also adds new section 16R which adds new section 270A to the National law as it applies in Victoria. This provision protects a protected person from liability for republications under section 270 if the publication is in good faith, including protection from liability for defamation. This protection covers a number of listed ‘protected people’, including the Minister, the Regulatory Authority, the proprietor, editor or publisher of a newspaper, the proprietor or broadcaster of a radio or television station or producer of a radio or television show, an internet service provider or internet content host or a member of staff acting at the direction of one of these people.

Fair hearing and property rights

New Section 16R which adds section 270A to the National Law in Victoria provides a protection from liability for certain protected persons listed above for republications under amended section 270. Where an immunity clause restricts a plaintiff’s ability to access a court by effectively removing a person’s ability to bring an action in court due to the absence of an appropriate defendant, the right to a fair hearing may be engaged.

Similarly, insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, new section 270A may engage the right by depriving a person of their ability to obtain effective relief for that cause of action.

However, to the extent that this immunity provision could be considered to bar access to a court or deprive a person of a course of action, I consider this provision to be compatible with these rights. Any deprivation of property will be ‘in accordance with law’. It will pursue the important objective of ensuring that parents and other members of the public are able to make informed decisions regarding the provision of education and care services to their children, particularly in relation to providers that are subject to enforcement action under the National Law. It will facilitate the Regulatory Authority to use the enforcement tools at its disposal without fear of litigation or reprisal, and add to the deterrent effect of available enforcement action. It is reasonable as it only extends to good faith actions done under section 270 of the National Law and specified information. It also protects against the situation where media entities could be liable for republication of information published by the Regulatory Authority in accordance with law. Finally, it applies to circumstances that in my view are unlikely to give rise to a legitimate cause of action, and to which any potential respondent would likely enjoy the protection of existing defences at law.

Accordingly, in my view the protection from liability provision is appropriately granted and is compatible with the rights to fair hearing and property.

Disclosure of information about person to approved providers

New section 16S in clause 110 adds new section 272B to the National Law as it applies in Victoria. New section 272B provides for the disclosure by the Regulatory Authority of certain information about persons to approved providers and recruitment agencies or labour hire agencies if required to comply with the National Law. The information that may be provided includes the identity of the person, whether they are subject to a suspension direction, supervision direction or training direction and if so, the provision of the National Law that formed the basis of that direction and any conditions attached to it. The Regulatory Authority may also disclose information about any current investigation into whether a person has not complied with a suspension direction, supervision direction or training direction applying to them.

Right to privacy

Having regard to the circumstances in which information may be shared under new section 272B, and the limited scope of information that may be shared, I consider that this provision is compatible with the right to privacy. The sharing of information with approved providers, recruitment agencies and labour hire agencies will be lawful under this provision, will only apply in specified circumstances and permit disclosure to certain persons, accordingly it will not arbitrarily interfere with the privacy of individuals. It serves the important purpose of safeguarding against risk by empowering the Regulatory Authority to notify relevant entities about persons who are subject to compliance orders and prevent further contraventions of the National Law. This is necessary to ensure the protective purpose of these orders are realised in practice. Accordingly, I am satisfied the power is compatible with privacy.

Additional court orders

New section 16U in clause 114 provides for the insertion of Division 4A into the National Law as it applies in Victoria. New section 292A is added by Division 4A and it provides that a Court may order, if a person commits an offence against the National Law or the Regulations, in addition to any penalty that the offender take action to publicise the offence and the consequences of the offence. New section 292B provides that if a person is found under section 188F to have contravened the National Law or the Regulations, a relevant tribunal or court may make an order requiring the relevant person to take specified action to publicise the contravention, including the circumstances of the contravention, and the consequences of the contravention.

Right to privacy

This new power engages the right to not have a person’s privacy unlawfully or arbitrarily interfered with under section 13(a) of the Charter and the right to not have a person’s reputation unlawfully attacked under section 13(b) of the Charter, by mandating that a person must make the commission of an offence known to the public or to a specific person, or both.

I consider it likely that the information that a person will be required to publish under an order to publicise the offence or the contravention and its consequences will already be in the public domain as a consequence of judicial proceedings held in open court.

In my view, the right not to have a person’s privacy unlawfully or arbitrarily interfered with under section 13(a) and the right to not have one’s reputation unlawfully attacked under section 13(b) of the Charter will not be limited, because any interference with a person’s privacy or damage to the person’s reputation will not be unlawful as it will be in accordance with an accessible and precise legislative framework. Further, any interference with a person’s privacy will not be arbitrary as the required disclosure of information serves the legitimate purpose of promoting the safety, health and wellbeing of children. Such an order serves the important purpose of seeking to promote accountability by preventing a person from concealing that they have been convicted of an offence and have been subject to a penalty or found to have contravened the National Law or Regulations. This empowers parents and the community to take their own protective steps, as they are able to gain awareness of the previous conduct of providers they may be considering for the education and care of their children. The risk of such an order resulting damage to a person’s reputation may create a greater deterrence than a monetary penalty, which in turn may encourage greater compliance with the National Law and Regulations.

I am satisfied that the right to privacy and reputation under section 13 of the Charter is not limited by new sections 292A and 292B.

Right to freedom of expression

The new power engages and may limit the right to freedom of expression, because it compels a person to publish certain information. To the extent that the right to freedom of expression may be limited, I am satisfied that any such limitation is justified, given the important child safety and deterrent purposes that an order under new sections 292A or 292B serves, as described above.

Offence to enter into contracts of insurance indemnifying against financial penalties

Clause 114 of the Bill adds new section 16V to the ECSNL Act, which provides that the National Law applies as the law of Victoria as if new Division 6A were inserted. This new Division adds an offence of, without reasonable excuse, entering into contracts of insurance indemnifying against the payment of a financial penalty or being a party to a contract of insurance under which a person is indemnified in respect of the payment of a financial penalty on or after the relevant day (new section 295A of the National Law). This applies to entering into a contract of insurance after the amendments have commenced or to existing contracts to which a person is a party to, on or after the day that is a year after the commencement of the Amending Act. Consequently, it will apply prospectively in relation to entering into contracts, and only to existing contractual arrangements from one year after the commencement of the amendments.

Right to property

‘Property’ under the Charter includes all real and personal property interests recognised under the general law, relevantly including contractual rights. However, the right to property will only be limited where a person is deprived of property ‘other than in accordance with the law’. For a deprivation of property to be ‘in accordance with the law’, the law must be publicly accessible, clear and certain, and must not operate arbitrarily.

The purpose of the new offences is to ensure that financial penalties, being fines ordered by a court when a person is found guilty of offence under the relevant Act and its Regulations retain their deterrent value, and thereby encourage compliance with duties under the law.

The offence either operates prospectively in respect of entering into contracts or to the extent it applies to existing provisions, the operation of the offence is narrow in nature and only applies from the relevant day. Further, the scope of the offences is narrow and not intended to affect other provisions in contracts or other arrangements which cover other kinds of legal expenses. For example, insuring or indemnifying a person for the cost of defending a prosecution or court-ordered damages.

Where a contract or other arrangement insures or indemnifies a person against more than one expense, offences will only relate to those terms which purport to insure or indemnify the person for the person’s liability to pay a financial penalty under the relevant Act or its regulations.

Generally, under the common law an insurance policy cannot cover the consequences of a criminal conviction or penalty. However, this does not necessarily apply to unintentional criminal acts that involve negligence. Offences under the National Law can be established without direct culpability on the part of the duty holder. There is nothing that explicitly prevents a body corporate or a sole trader from insuring themselves for their own liability for offences.

To the extent the offences relate to entering into contracts in the future, I do not consider that the offences amount to a deprivation of property. To the extent that the offence in respect of being a party to a contract of insurance under which a person is indemnified in respect of the payment of a fine on or after the relevant day may amount to a deprivation of property, any such deprivation will be in accordance with the law, and not pursuant to a discretionary power that may operate arbitrarily. As such, I consider that the right to property is not limited by these provisions.

Presumption of innocence

As discussed above, 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 in section 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

By creating a ‘reasonable excuse’ exception, the offence in new section 295A of the National Law may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution who must prove the essential elements of the offence. I note the Supreme Court has taken the approach that an evidential onus of this nature does not limit the right to be presumed innocent.

For these reasons, in my opinion, new section 295A of the National Law is compatible with the right to be presumed innocent.

Hon. Ben Carroll MP

Minister for Education

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:21): 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:

The Early Childhood Legislation Amendment (Child Safety) Bill 2025 is a critical component of Australian governments’ overhaul of child safety regulation.

This Bill gives effect to the commitment of all Australian governments to implement recommendations of the Review of Child Safety Arrangements under the National Quality Framework (known as ‘the Child Safety Review’) in December 2023. The Bill also implements seven recommendations of the Rapid Child Safety Review commissioned by the Victorian Government in 2025.

I want to emphasise that the vast majority of educators in education and care services are skilled, hard-working, professional, and committed to protecting and caring for our youngest Victorians. Educators are our greatest asset in keeping children safe in services.

Unfortunately, in 2023, 2024 and 2025, several serious incidences of sexual assault and abuse of children in early childhood education and care settings came to light in several jurisdictions including Queensland, NSW and Victoria. These shocking allegations have highlighted the urgent need for further action by governments and the education and care sector to improve the safety and quality of education and care nationally.

The Bill amends the Education and Care Services National Law (National Law) in the Schedule to the Education and Care Services National Law Act 2010. It also amends the Victorian application provisions in that Act to modify the National Law as it applies in Victoria, to further strengthen the regulatory regime that applies to Victorian education and care services and their providers.

The proposed amendments to the National Law are expected to be settled nationally by the Australasian Parliamentary Counsel’s Committee (APCC) in accordance with the APCC Protocol on Drafting National Uniform Legislation, and have been approved by EMM in accordance with the Ministerial Council’s function under section 220(1)(g) of the National Law.

Amendments to the National Law – for all participating jurisdictions in the National Quality Framework

The key features of the Bill include to amend the National Law as it applies in all states and territories to:

a. introduce a statutory duty that the safety, rights and best interests of children are to be the paramount consideration for approved providers, persons with management or control of the service, persons in day-to-day charge of a service, nominated supervisors, staff, students and volunteers;

b. mandate child protection training for all staff who work with children and child safety training for all persons who are involved in the provision of education and care services;

c. empower the Regulatory Authority to impose:

i.   a (time limited) suspension notice on approved providers directing them to suspend a specific staff member from providing education and care to children at that approved provider;

ii.   a supervision notice requiring an approved provider to ensure that a specific staff member is supervised in the provision of education and care;

iii.   a mandatory training notice requiring an approved provider to ensure a specific staff member undertakes training to address certain conduct;

d. introduce a new offence which prohibits ‘inappropriate conduct’ while providing education and care to children;

e. expand the information sharing powers of the Regulatory Authority to proactively share information about individuals with their current approved provider, and gather and share information with recruitment agencies

f. increase the maximum penalties for offences under the National Law by a factor of 3;

g. expand the number of offences that are infringeable offences

h. introduce powers to deal with systemic non-compliance by related providers (including large provider groups);

i. expand the powers for authorised officers to check compliance and investigate offences in the residence and other areas beyond the FDC service premises

j. extend the time in which the Regulatory Authority may commence proceedings for offences under the National Law to 2 years from the date on which the Regulatory Authority becomes aware of the offence, and include a ‘stop the clock’ mechanism which suspends the two-year limit on commencing proceedings during periods in which a concurrent investigation or proceedings under another Act are taking place;

k. regulate the use of digital devices while taking images or videos of children while providing education and care.

l. establish the National Early Childhood Worker Register.

The expectations of all governments for all those in the sector – from those who control providers through to individual educators ‘on the floor’ with children – are clear. The Bill creates a new statutory duty for all decision makers in the ECEC system to make the safety, rights and best interests of children their paramount consideration when making decisions.

The Bill contains over 30 measures that aim to improve the safety and quality of the education and care provided to children attending services.

They will strengthen the powers of Regulatory Authorities to monitor and take action against non-compliance, and hold service providers, their staff and volunteers to account. The Bill will triple the maximum penalty amounts for offences against the National Law and provide the authority to create new infringement offences.

Importantly, the Bill will give Regulatory Authorities new powers to address the conduct of individuals who do the wrong thing, including better information sharing powers with an educator’s approved provider or labour hire agency.

There are also new powers to deal with non-compliance at a systemic level by ‘related providers’ (including large provider groups).

The Bill makes provision for the establishment of a National Educator Register which will give regulators better visibility of the education and care workforce, students on practicum placement and volunteers to strengthen accountability, planning, and professional recognition.

The Bill also improves information-sharing and information-gathering powers for Regulatory Authorities. This includes ensuring that Regulatory Authorities can share information about an educator’s prohibition with an approved provider where the educator is employed or with the educator’s recruitment agency, and power for a Regulatory Authority to obtain information about an educator from a recruitment agency.

The Bill also addresses critical operational requirements for services, to improve child safety practices and understanding.

For example, it establishes a new requirement for all involved in the sector – service providers, their staff and volunteers, whether or not they work with children – to undergo mandatory training in child safe practices. It also expands the existing requirement for training in the child protection requirements of their jurisdiction to all people who work with children.

There will also be new offences to ensure that images and videos of children are only taken on digital devices issued by the service, and that educators do not have a personal digital device with them while working with children. This puts in place mandatory requirements that reflect the voluntary National Model Code on taking images and videos of children in education and care that was put in place earlier this year. The new national offences back up the Victorian restrictions on personal digital devices in services set out in the Statement of Regulatory Expectations – National Model Code that commenced in September this year.

Further child safety measures that will apply in Victoria only

This government is committed to doing everything in its power to ensure the safety of children and restore the community’s trust in the early childhood education and care system, so the Bill goes further with additional reforms specifically for Victoria.

The Bill amends the Victorian application provisions in the Education and Care Services National Law Act 2010 to implement additional child safety measures that are specific to Victoria and align with changes recently passed in New south Wales. To achieve this, the Bill makes a number of modifications to the National Law, as it specifically applies in Victoria, to:

a. expand the power for the Regulatory Authority to issue a prohibition notice to include giving a notice to a person who was previously involved in providing an education and care service (regardless of whether the service had the proper approvals);

b. empower the Regulatory Authority to prohibit persons who have been refused provider approval or service approval in the past 12 months from reapplying for the approval;

c. expand the grounds for cancellation of provider approvals to include where an approved provider has been deregistered under the Corporations Act, is under administration or in liquidation or is an association that has been wound up or whose incorporation has been cancelled;

d. empower the Regulatory authority to take disciplinary action and bring disciplinary proceedings against an approved provider who has contravened the National Law or the national regulations, including against a person with management or control of the approved provider;

e. empower the Regulatory Authority to publish information about enforcement or disciplinary action taken under the National Law against certain persons involved in the provision of education and care;

f. introduce a new offence for a failure by an approved provider to display the approved provider’s quality and compliance history at an education and care service premises of a service operated by the provider;

g. empower the Magistrates Court to make an order requiring a person convicted of an offence to publicise the offence, and the circumstances and consequences of the offence;

h. empower the Victorian Civil and Administrative Tribunal (VCAT) to make an order requiring a person against whom disciplinary action has been taken for non-compliance to publicise the non-compliance, and the circumstances and consequences of the non-compliance;

i. require an approved provider to notify the Regulatory Authority of any sexual offences or sexual misconduct committed by staff, students or volunteers working at an education and care service operated by the approved provider within a prescribed timeframe.

j. expand the information sharing powers of the Regulatory Authority to enable proactive disclosure of any suspension directions, supervision directions and mandatory training directions given directly to an individual with approved providers and recruitment agencies;

k. increase the maximum penalties for large approved providers (providers which have 25 or more services) by a factor of 9;

l. Empower the Regulatory Authority to give a notice directing individuals working in education and care services to suspend providing education and care for a specified period;

m. clarify that an application for internal review of a decision by the Regulatory Authority does not affect the application, operation and validity of that decision;

n. expand the power of Regulatory Authority to better determine and control rating levels for education and care services, including to suspend a service’s quality rating during an investigation;

o. expand the number of offences under the National Law which are infringeable offences;

p. introduce a power to empower Victorian regulations to be made which modify the maximum penalty imposed for offences under the National Regulation which are infringeable offences;

q. introduce a new offence prohibiting an approved provider from entering into a contract of insurance which indemnifies the approved provider or any staff members from a financial penalty for non-compliance with the National Quality Framework or the Child Safe Standards;

r. introduce a power for the Regulatory Authority and the Minister for Children to issue binding directions and guidelines, including to prioritise the safety, welfare or wellbeing of children and set out best practice guidance for operating education and care services;

s. introduce a power for the Minister for Children to issue binding directions to the Regulatory Authority in relation to the exercise of its functions and powers under the National Law;

t. introduce a power for the Regulatory Authority to order the closure of services in a geographic area because of an emergency event;

u. introduce a power to make Victorian regulations for transitional or savings provisions (that are required as a consequence of the reforms proposed above and which may be retrospective in operation to the commencement of those measures to ensure operational continuity and proper functioning of those provisions), and to prescribe additional provisions necessary to give effect to the Victorian- specific measures.

Specifically, the Bill will further improve transparency of information available to families by mandating that approved providers publish their quality and compliance history. It will also prevent persons whose application for service or provider approval has been refused within the previous 12 months from applying again.

Victoria will have a new category of maximum penalties in Victoria for large service providers at 9 times the current amount, applicable to approved providers that operate 25 or more services. In doing so, we are sending a signal to large providers that they need to be more accountable and ensure better adherence to child safe practices and behaviours.

The Bill will give the Regulatory Authority a new regulatory tool to take disciplinary action and bring disciplinary proceedings against an approved provider who has contravened the National Law or the national regulations. If the Regulatory Authority and person cannot agree on an appropriate sanction or remediation for the breach, the Regulatory Authority can seek an order from VCAT to issue a disciplinary order that could include a reprimand, an administrative penalty or an order to take or refrain from taking certain actions.

The Bill also expands on the new suspension power in the National Law to empower the Regulatory Authority to give a notice directing individuals working in education and care services to suspend providing education and care for a specified period, rather than providing a notice to the approved provider directing them to suspend a specific staff member from providing education and care to children at that approved provider.

The Bill responds to the Victorian Rapid Child Safety Review conducted earlier this year in response to distressing allegations of abuse in Victorian education and care services. We have already implemented the Victorian Worker Register, which will be compatible with a National Register that will be established under this Bill.

This Bill goes hand in hand with the Victorian Early Childhood Regulatory Authority Bill and demonstrates our commitment to ensuring the safety of children in the education and care services sector.

The new, independent Victorian Regulator will be more transparent with greater ability to publish compliance and enforcement activity information on its website.

All children deserve to be safe wherever they learn, play and grow.

I commend the Bill to the house.

 James NEWBURY (Brighton) (12:21): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

 Ben CARROLL (Niddrie – Minister for Education, Minister for WorkSafe and the TAC) (12:21): I move:

That debate be adjourned until later this day.

 Jess WILSON (Kew) (12:21): The opposition will not be opposing this, but I just note once again that these reforms were recommended by the Ombudsman three years ago, and it has taken years for the government to actually bring this to the floor of the Parliament. The rapid review said that these would be tabled in the Parliament in October, and the opposition and the crossbench received these bills yesterday afternoon. We will be debating these bills less than 24 hours later. This is a government that has not put child safety first and foremost. The opposition will not be opposing this, but it is to be noted that the government has been dragged to this position.

 Will FOWLES (Ringwood) (12:22): I would like to add to the comments from the member for Kew. I am pleased that the coalition got their copy in the afternoon – we got ours at 6:45 pm. It is an absolute beast of a set of bills here. It is 1100 pages, including the two explanatory memorandums. I know the standing orders refer to briefings having been given, and they have been, but an email notification at 6:45 pm for a briefing at 7:30 pm does not do much for those of us who might have other things going on at that time of night, including in relation to one’s children. I think it is, yes, technically in compliance with the standing orders, but this is a vast volume of material for anybody to have to attempt to digest in the timeframe that the government proposes, and it, just frankly, makes a mockery of the process in this place that we would be given 1100 pages to chew over at 7 pm last night with a view to debating them today.

I appreciate the urgency and I appreciate the intent; I do not think there is anyone in this place who is going to stand in the way of good reforms being made for child safety. But a bunch of these reforms were foreshadowed as far back as three years ago, as the member for Kew has said, and a number of the matters in these bills do not relate to child safety, they relate to disability care and other matters. Those things I think ought to be given proper consideration in this chamber and indeed proper consideration in the other place as well. They of course have the advantage of getting at least a week’s chop-out in terms of dealing with this absolutely vast volume of material. But for those of us who do not have a phalanx of ministerial or shadow ministerial advisers – for those of us who did not even get the basic courtesy of a hard copy of the bill, despite requesting it, and had to just about melt the office printer this morning trying to get this chunk of legislation into a form in which it could be adequately scrutinised – this is a wildly unsatisfactory timeframe and, frankly, an unnecessary abrogation of the process.

There is only one part of this bill – admittedly an important part – that will come into effect from royal assent; the rest is to be sequenced. My question to the government is: why couldn’t we have put in place, in the urgent timeframe, the bits that are actually urgent and deal with the balance of this 1100-page supertome in a more orderly timeframe, allowing members in this place even the courtesy of reading the explanatory memorandum, let alone the bill itself? The member for Broadmeadows was quite forceful in her view last sitting week and the member for Preston was quite forceful in his view last sitting week that 13 days was not enough to deal with the very important voluntary assisted dying amendments. Well, try zero days – 1100 pages, zero days. That is the reality that this chamber is forcing on all members today: zero days scrutiny for this bill. We are expected to get up and debate on this vast tome of material asap – not the 13 days that the members for Broadmeadows and Preston would say is inadequate, but zero days. Zero days today is the new standard the government wants to set when it comes to ramming through legislation.

Some of this legislation undoubtedly is good. I am sure the intention is good. I am sure it is an adequate response to the rapid review, but I would not know, because you cannot get through this volume of material in the timeframe being proposed by the government. The member for Narre Warren South can roll her eyes until she is blue in the face, but the reality is –

Belinda Wilson interjected.

Will FOWLES: Get back in your seat.

The SPEAKER: Order! Member for Ringwood, through the Chair.

Will FOWLES: Speaker, I ask that you ask the member for Narre Warren North to stop interjecting.

The SPEAKER: Order! Through the Chair, member for Ringwood.

Will FOWLES: I am asking the Chair something through the Chair.

The SPEAKER: It is inappropriate to ask questions of the Chair. I ask the member for Ringwood to continue his contribution through the Chair.

Will FOWLES: And I shall. On a point of order, Chair, can you please ask the member for Narre Warren North to refrain from shouting at me across the chamber when she is out of her seat.

The SPEAKER: I ask the member for Narre Warren North to refrain from interjecting, and now I ask you to speak through the Chair.

Mary-Anne Thomas interjected.

Will FOWLES: I pick up the manager of government business on the interjection that she just made towards me, and I ask, Chair, on a point of order, that you ask the manager of government business to stop referring to me as embarrassing, when in fact it is she who is embarrassing in this place, and to stop asking me –

Members interjecting.

Will FOWLES: On a point of order, Speaker, I ask that you ask the manager of government business to stop asking members to resume their seat when they are simply saying something with which she disagrees.

The SPEAKER: Member for Ringwood, that is not a point of order.

Will FOWLES: On a point of order, Speaker, I would like some guidance, please, under which standing order I ought to raise conduct of members in the chamber calling across the chamber.

The SPEAKER: I invite the member for Ringwood, if he has concerns about the conduct of other members in the chamber, to come and speak to me in my office afterwards.

Motion agreed to and debate adjourned until later this day.