Wednesday, 4 August 2021

Social Services Regulation Bill 2021

Statement of compatibility

Mr DONNELLAN (Narre Warren North—Minister for Child Protection, Minister for Disability, Ageing and Carers) (10:45): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Social Services Regulation Bill 2021.

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 Social Services Regulation Reform Bill 2021 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with the human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill:

• establishes a Social Services Regulator (Regulator), and Social Services Standards (Standards);

• provides for the registration of social service providers and requires them to comply with the Standards;

• establishes a Worker and Carer Exclusion Scheme (WCES) to enable workers and carers to be excluded from performing certain high-risk roles for or on behalf of certain social service providers where a relevant worker’s conduct shows they pose an unjustifiable risk of harm to service users, replacing the current scheme under the Children, Youth and Families Act 2005 (CYF Act);

• empowers the Regulator to convene a Panel to make determinations as to whether a WCES worker or carer should be excluded from the WCES;

• provides that the Regulator must maintain a private database of information on WCES workers;

• provides authorised officers and independent investigators with powers to monitor compliance with the Bill, including by gathering information, entering and searching premises, and seizing documents or things;

• provides for the enforcement of, and information-sharing under, the Bill; and

• otherwise provides for supported residential services.

Human rights issues

The Bill engages a range of human rights under the Charter, discussed below. However, to the extent that the Bill limits any Charter rights, such limits are reasonable and justifiable in accordance with section 7(2) of the Charter. Relevantly, all measures in the Bill are directed at protecting the rights of children, families, persons with disabilities, persons at risk of family violence and other vulnerable persons who use social services (service users). To the extent that any clauses limit a Charter right, those limits are justified measures to achieve the overarching purpose of protecting the rights of service users.

Register of social services providers

The Bill establishes a registration scheme for ‘social service’ providers (clauses 21–37), and requires registered social service providers to comply with the Standards (clause 45). It is intended that ‘social services’ will include activities such as prevention and early intervention reporting; provision of information and advice; education and skills development; counselling services; ongoing support and crisis support; accommodation; and personal care services. Providing a prescribed social service without registration will be an offence (clause 119).

A person providing a social service, or a person on behalf of an unincorporated body providing a social service, may apply for registration to provide one or more types of social services as a registered social service provider (clause 21). The Regulator will consider and then must grant or refuse applications for registration depending on whether the applicant meets the prescribed requirements for registration. The Regulator can also impose or vary conditions on registration (clause 23–26) and can require a registered social service provider to give service users notice of such changes to their registration (clause 30). The Regulator may cancel a registration in certain circumstances, including in any circumstances that the Regulator considers it appropriate to do so (clause 34).

Clause 36 provides that the Regulator must keep a register of social service providers which is to contain information about each registered social service provider, including a name (and or a trading name), address, contact information, types of social services they provide and conditions of registration, details of enforceable undertakings provided under the Bill, details of convictions or findings of guilt in contravention of the Bill, and whether and when their registration is or has been suspended, cancelled or revoked (Register). The Register can also contain any rating given to the registered social service provider in accordance with any prescribed rating system. Information on the Register may be made public subject to prescribed requirements (if any) (clause 36), although the Regulator may decide not to publish certain information if they consider that publication is not appropriate having regard to the circumstances (clause 37).

Right to privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The right to privacy is very broad. Relevantly, it encompasses a person’s right to establish and develop meaningful social relations, and may also incorporate a right to work in some circumstances (to the extent that work is necessary to establish and develop social relations).

The collection of information about a person who provides social services (as a sole trader), or persons who register on behalf of unincorporated bodies for inclusion on the Register, and the publication of certain information on the Register, involves an interference with privacy. However, the collection of information in these circumstances in neither unlawful nor arbitrary, as the collection is authorised by legislation and necessary to enable the effective regulation of social service providers. Further, the Regulator’s power to exclude information from the register where appropriate in the circumstances offers protection against arbitrary or disproportionate interference with privacy that may otherwise occur.

If a person (as a sole trader) is refused registration as a social service provider or has that registration cancelled or revoked, they will be prevented from undertaking work as a registered social service provider. These provisions, and various other clauses within the Bill, may interfere with the right to privacy to the extent that it includes a right to work. However, any interference will be lawful as it is authorised under legislation. Further, the interference is not arbitrary, as the Bill only enables a person’s right to work to be restricted to ensure that vulnerable persons are protected in circumstances where workers may pose a risk of harm. I therefore consider that these provisions are compatible with the right to privacy.

Notification obligations

Clauses 47 and 48 provide that a registered social service provider must notify the Regulator of certain matters, including any prescribed criminal conviction of the service provider, the director, or key personnel, and of serious incidents that may pose a serious risk to service users or WCES service users (notifiable incidents).

Right to privacy

These clauses engage the right to privacy by requiring the disclosure of personal information, including sensitive information relating to a person’s criminal convictions. However, any interference with privacy is neither unlawful nor arbitrary. It is authorised under the legislation and is for the clear purpose of enabling the Regulator to make informed decisions about a social service providers’ registration and compliance with the Bill. The registration of social service providers is a core part of the scheme and is necessary to ensure providers comply with the Social Services Standards, which in turn protects the safety of service users. I therefore consider that these clauses are compatible with the right to privacy.

Identity cards

Independent investigators and authorised officers are required to be issued with an identity card by the Regulator stating that they are an authorised officer or independent investigator, with their name, signature and, photograph and produce it if asked when performing functions or exercising powers under the Bill (clauses 105–106).

This clause may interfere with independent investigators’ and authorised officers’ right to privacy, to the extent they are required to disclose their name, photograph and role in specified circumstances. However, the interference with privacy is neither unlawful nor arbitrary, as it is a proportionate and necessary measure to ensure that persons dealing with independent investigators and authorised officers are able to identify them, as well as providing some protection against people fraudulently claiming to be independent investigators or authorised officers and seeking to exercise their powers. I therefore consider that these clauses are compatible with the right to privacy.

Worker and Carer Exclusion Scheme (WCES)

The Bill establishes the WCES, which will operate as a negative licensing scheme to enable the Regulator to exclude workers who perform high risk activities if their past conduct shows they pose an unjustifiable risk of harm to a WCES service user. Persons may be excluded from providing a WCES service or class of WCES services (clause 79). ‘WCES services’ will be specific kinds of social services that are prescribed (clause 3). It is intended that services will include out of home care services and other community services currently regulated under the Children, Youth and Families Act 2005, disability services that are not covered by the National Disability Insurance Scheme, supported residential services, family violence services, sexual assault services, alcohol and other drugs treatment services and homelessness services.

The Regulator is to maintain and check a private database of excluded workers and carers each time a registered social service provider proposes to hire a worker or carer (clause 538). Conduct that may lead to exclusion (worker misconduct) includes conduct that causes or a reasonable person would consider likely to cause serious harm to a WCES service user or a person with the same characteristics (WCES service user), persistent or repeated conduct that results in harm to a WCES service user and prescribed conduct (clause 52). ‘Serious harm’ is defined as harm, whether a single instance of harm or repeated or persistent instances of harm, that results in one or more of death, loss of a foetus, permanent or long-term serious impairment or permanent or long-term disfigurement or severe psychological injury or developmental delay (clause 3). Each element of the WCES and relevant Charter rights are discussed in turn.

WCES preliminary assessments and investigations

The Bill provides that upon receipt or becoming aware of information relating to, worker misconduct, the Regulator may undertake a preliminary assessment of a current WCES worker or carer’s conduct and determine whether to investigate or to refer the matter to the Panel (clause 55). Clause 57 provides for investigations into conduct by the Regulator, or on their behalf by authorised officers or independent investigators. Investigations may be carried out in a manner considered appropriate having regard to the Bill, the presumption of timely and efficient investigations are preferable, and the particular circumstances. The relevant WCES worker and WCES service providers who employ or have employed the worker must be notified if a determination or referral occurs (clause 56).

Right to privacy

These clauses interfere with the right to privacy to the extent that they allow information to be shared by persons to the Regulator, and if investigation powers are to be exercised, between the Regulator and authorised officers or independent investigators. However, the interference will be neither unlawful nor arbitrary. The provisions will be authorised under legislation and an investigation may only occur on the Regulator’s assessment that it is appropriate. In making these decisions, the Regulator is also bound by their object and guiding principles, which include to act in a transparent way and make decisions using an intelligence-led and risk-based approach (clauses 7–8). Finally, the subject of an investigation determination and their employer are to be notified, so they will be aware that an investigation may follow, and independent investigators or authorised officers may attend relevant social service providers to interview employees or inspects documents or things. I therefore consider that these clauses are compatible with the right to privacy.

WCES database

The Regulator is required to maintain a private database containing information on all excluded workers and carers (clause 83), including their name, details of the why they are excluded, the period of exclusion, and any details of the exclusion decision (clause 83(2)). A registered social service provider must ask for a database check for each worker or carer they propose to employ (clause 84(1)). The Regulator may provide database information to WCES service providers for the purpose of responding to a request (clause 84(2)). The object is to ensure that excluded workers or carers are not and are not trying to work while excluded. Excluded WCES workers or carers must notify the Regulator of name and address changes (clause 86). The Regulator must remove information relating to a person’s exclusion on expiry (clause 87) and persons can apply for the removal of information in prescribed circumstances and the Panel can require the Regulator to remove that information (clause 79).

Privacy and reputation

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

Inclusion of a person’s personal information on the database may interfere with a person’s privacy and reputation, to the extent that it provides they have been excluded from the WCES and the details of excludable conduct. However, any interference will be authorised under legislation and is subject to appropriate safeguards, including that the database be kept private and information on it only shared with WCES service providers upon their application in relation to a particular person. Expired information must be removed and persons can apply for the removal of information. I therefore consider that these clauses are compatible with the right to privacy and reputation.

WCES information-sharing with parties including Victoria Police

The Bill provides that the Regulator may report to the Chief Commissioner of Police on becoming aware that a WCES worker or carer may be or have been involved in criminal conduct (clause 53), and can also request the Commissioner to provide certain information on the WCES worker or carer, including whether they are subject to, and or the results of, any investigation into them, if the Regulator reasonably believes they are engaging in excludable conduct (clause 54). The Regulator may also disclose information to a Panel, authorised officer or independent investigator to enable that party to perform any function or exercise any power (clause 102).

Right to privacy

The right to privacy is likely to be engaged by sharing of information in the circumstances outlined above. However, any interference will be authorised under legislation, and not arbitrary as the sharing of information in those circumstances is reasonable and necessary for the conduct of the scheme. Sharing information with Victoria Police ensures the Regulator can make an adequately informed decision about whether it is safe for a particular worker or carer to provide social services, and enables Victoria Police to conduct its own investigations as appropriate. Sharing information with a Panel, authorised officer or independent investigator ensures that those persons can effectively perform functions or powers as necessary to achieve the objectives of the Act. For these reasons, these clauses are compatible with the Charter right to privacy.

Panel hearings (“WCES hearings”)

Part 5 of the Bill provides for the conduct of Panel hearings to determine whether a worker or carer should be excluded from providing WCES services. Panels are bound by the rules of natural justice (but not of evidence). The relevant WCES worker has the right to be present, make submissions and to be legally represented (clause 75). Panel hearings must be closed to the public, unless the Panel makes orders to open the hearing. When considering whether to make such an order, the Panel must take into account whether holding a closed hearing is necessary to protect the safety or privacy of any person, to promote the best interests of a child, to avoid causing undue stress or embarrassment to a witness, or to protect the fairness of the hearing or if doing so is generally in the public interest (clause 75).

A Panel may also determine that certain things not be published or broadcast, including the identity of any person, or any information that is likely to lead to the identification of any person. If the Panel considers it in the interests of justice to do so, the Panel may determine that the identity of a WCES worker, service user or child also not be published or broadcast (clause 76).

Right to privacy and reputation

The right to privacy and reputation is significantly engaged by Panel hearings, which may concern the person’s conduct in their personal life, including historical conduct. Hearings may also interfere with the right to privacy of persons who give evidence or persons who are referred to in evidence or documents the Panel considers, particularly as the Panel may order that hearings will be held in public. However, any interference with privacy will be authorised under legislation. Further, the Panel’s power to order that a hearing be open to the public is not an arbitrary interference with privacy, as it is a reasonable measure designed to promote the principle of open justice. Various safeguards ensure that privacy is not arbitrarily limited, notably the presumption that hearings will be closed, the requirement that the Panel take into account the factors identified at clause 75 before making an order to open the hearing, and the Panel’s power make non-publication orders as described above. For these reasons, I consider that the clauses concerning WCES hearings are compatible with the right to privacy and reputation (s 13).

Right to freedom of expression

Section 15 of the Charter provides that every person has the right to hold an opinion without interference and has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. Section 15 also provides that lawful restrictions may be reasonably necessary to respect personal rights and reputations, or for the protection of national security, public order, public health or public morality.

The fact that Panel hearings are closed to the public unless ordered otherwise will engage the right to freedom of expression, as it limits the ability of people to attend hearings to seek and receive information, and the ability of people to report on hearings. However, as Panel hearings are likely to involve sensitive material that may include personal information about children or other vulnerable persons, I consider that the presumption that hearings be closed is a lawful restriction that is reasonably necessary to protect the rights and reputations of persons involved in hearings, including witnesses. Further, as discussed above, the Panel may order that a matter be open to the public if appropriate in the circumstances, ensuring that any restriction on freedom of expression does not go further than reasonably necessary. Therefore, the Bill is compatible with the right to freedom of expression.

WCES Panel determinations

Under clause 79, following a hearing, the Panel may decide to exclude a person from providing WCES services or a class of services (exclusion determination). An exclusion determination must be made if the Panel finds, on the balance of probabilities, that the person engaged in conduct that may lead to exclusion. The Panel must also be reasonably satisfied that the person poses an unjustifiable risk to a WCES service user. If it decides to exclude a person, the Panel must also notify any WCES service provider that is or has engaged or employed the worker or carer of the exclusion determination (clause 80), and the person’s details must be entered on the Regulator’s database (clause 83) (discussed above).

Right not to be punished more than once for the same offence and right against retrospective punishment

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right reflects the principle of double jeopardy. However the principle only applies in respect of criminal offences. It will not prevent civil proceedings being brought in respect of a person’s conduct which has previously been the subject of criminal proceedings, or vice versa.

Section 27(2) of the Charter provides that a penalty must not be imposed on any person for a criminal offence that is greater than the penalty applied to the offence when it was committed.

These rights may appear to be engaged, as a person may be subject to an exclusion determination on the basis of conduct for which they have already received a criminal penalty, and a person may also be subject to exclusion determinations on the basis of criminal convictions that occurred prior to the introduction of the WCES. However, a determination to exclude a person is protective and not punitive in nature. Such a determination may only be made where a person presents unjustifiable risks of harm to service users. Exclusion determinations therefore do not constitute a ‘punishment’, and do not engage the rights in ss 26 and 27 of the Charter.

Information-gathering powers

The Bill provides for various information gathering powers in a range of circumstances. Clause 94 provides that a WCES Panel may require a person to produce a specified document or thing. A Panel may also require a person to attend before them to produce documents and things (clause 96) or to give evidence on oath or affirmation in certain circumstances (clause 98). A Panel may also examine or inspect a document or thing, retain, make copies of or do any other thing that is reasonably necessary for the purposes of exercising their functions or powers under the Bill (clause 99).

The Bill also provides separate information-gathering powers for the Regulator, authorised officers and independent investigators. Each may request information, although a person may refuse a request (clause 108). Each may also require information, documents or a person’s appearance, where it would assist with monitoring a prescribed social service’s compliance with the Bill or for the purposes of the WCES (clause 109).

Right to privacy

These clauses may interfere with the right to privacy to the extent they permit the Panel, Regulator and authorised officers to seek documents, things or evidence from persons. However, any interference will be authorised under legislation and will not be arbitrary. The clauses are subject to appropriate safeguards. For instance, parties may still claim legal professional privilege, client legal privilege or the protection against self-incrimination (clauses 123–124). Panel hearings are closed to the public unless the Panel orders otherwise, as discussed above. Information-gathering powers can only be exercised when necessary for functions or powers under the Bill, which goes to the overarching object of the Bill to protect service users. Information-gathering is required for efficient, effective investigations into excludable conduct, which may assist with identifying and preventing persons or behaviour that could pose an unjustifiable risk of serious harm to service users. For these reasons, these clauses are compatible with the Charter right to privacy.

Right to freedom of expression

The powers enabling the Regulator to compel persons to provide information or appear to give evidence may also interfere with the right to freedom of expression to the extent that the right extends to a right not to express. However, the relevant powers are required to ensure the effective regulation and investigation of persons providing services to vulnerable persons. As such, in my view such limits are reasonably necessary for the purposes of protecting the rights of others, in particular the rights of persons using services regulated under the Bill. I therefore consider that these provisions are compatible with the right to freedom of expression.

Powers of entry and seized documents or things

The Bill provides a range of powers which enable authorised officers to enter and inspect premises and seize documents and items. Authorised officers and independent investigators may enter:

• premises of unregistered providers and residential premises, with the consent of the occupier or resident (clauses 114 and 113);

• any premises, pursuant to a warrant issued by a magistrate (clause 115); or

• any premises, without a warrant for the purpose of monitoring compliance with the Bill or investigating a possible contravention of the Bill (premises other than residential premises) (clause 112(1)–(2)).

Depending on how entry was authorised, authorised officers and independent investigators will have different powers upon entry to a premises. Broadly, they include powers to search, inspect or examine documents, make enquiries, take photographs or make recordings, copy or take an extract from documents, use and operate materials at the premises or place, secure electronic equipment, request information from persons, and seize documents or things in certain circumstances (clauses 119–618).

Right to privacy

These powers significantly interfere with the right to privacy, as authorised officers and independent investigators may inspect both workplaces and, in limited circumstances, residences and accommodation. The provisions provide various safeguards to the exercise of such powers to ensure they are not exercised arbitrarily or unlawfully. For example, authorised officers or independent investigator may only exercise powers of entry if the authorised officer or independent investigator believes on reasonable grounds that the entry is necessary to eliminate or reduce an imminent risk of harm to a service user (unless otherwise provided for under a warrant or by consent) (clauses 114, 112(2) and 115(4)(e)). Authorised officers and independent investigators may, with the occupier’s consent, enter residential premises, and with prior notice to and the consent of an occupier or resident, enter bedrooms in residential premises (clauses 112–114).

Further, the power of authorised officers and independent investigators to require information will be limited by the purposes of the legislation and the specific purposes of their entry, search and seizure functions. Searches done pursuant to a warrant further limit the circumstances in which such a search will occur, as warrants will only be given by the court where appropriate. Taking into account the above safeguards and the important purpose served by the provisions, I consider that to the extent that the powers authorise interference with privacy rights, that interference will be lawful and non-arbitrary. To the extent that it is relevant, I also consider that any limit on the right to privacy would be reasonable and justifiable in accordance with s 7(2) of the Charter.

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 is not limited where there is a law that authorises a deprivation of property, and that law is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct.

As set out above, the Bill enables authorised officers to seize documents and things in certain circumstances. Under the provisions, items may only be seized with a warrant, with consent or for the purposes of monitoring compliance with, or investigating a possible contravention of, the Act. Where an item is seized, Clauses 127 and 129 provide a process by which the occupier is informed about the reason for the seizure, and provides that seized items must be returned if no longer required, and generally can only be retained for up to six months (with limited exceptions). An authorised officer or independent investigator may apply to a magistrate for an extension of that period for up to an additional six months at a time, for a total period of no more than 2 years (Clause 130). The magistrate can only grant such an extension if satisfied that it is in the interests of justice, the total period of retention does not exceed 2 years and retention is necessary for the purposes of an investigation into whether a contravention of the Act has occurred or to enable evidence of a contravention of the Act to be obtained for the purpose of a proceeding under the Act. Under Clause 131, seized items may be destroyed where an authorised officer decides it is necessary to prevent a risk of harm to any person or the commission of an offence against the Act, is not, despite making reasonable efforts, able to find the owner or return it to the owner.

The right to property is also engaged by the power granted to authorised officer or independent investigator to seize items under clause 125 when exercising a power of entry under clauses 119 and 122. The Bill sets out a process for notifying the owner of any seizure and providing copies of documents seized. Further, seized items may not be retained for longer than necessary and can generally only be retained for up to six months (unless relevant proceedings are on foot, or unless a magistrate grants an extension) (clause 129).

However, as any deprivation of property associated with these provisions will be governed by a clear and accessible process set out under the legislation, any interference with property rights will be lawful, and the right will therefore not be limited. To the extent that it is relevant, I also consider that any limit on the right would be reasonable and justifiable in accordance with s 7(2) of the Charter.

Requirements to provide or display notices or to publish information

Under clauses 142–143, the Regulator and authorised officers are required to issue various notices, for example prohibiting the accepting of new service users, or accepting enforcement undertakings in certain circumstances (Notices). In certain circumstances, persons regulated under the scheme are required to display or publish certain information. For example, a Magistrates’ Court may also make an adverse publicity order (clauses 164–166) if satisfied that a person has been found guilty of an offence under the Act or regulations, requiring the person to publicise that finding.

Right to privacy and reputation

The information the subject of Notices may contain personal information, which, if displayed publicly, may interfere with the right to privacy. As would the making of an adverse publicity order. However, any interference with these rights will be lawful. Further, the interference will not be arbitrary, as the requirements to display or publish certain materials are necessary to ensure the effective regulation of social services and to promote the protective purposes of the Bill by enabling the public and affected persons to be notified of matters (including failures by providers to comply with the legislation). Further, safeguards are in place to ensure privacy is not unreasonably limited. I therefore consider that these clauses are compatible with the right to privacy and reputation.

Right to freedom of expression

The right to freedom of expression may in some circumstances encompass a freedom not to express (for example, to say nothing or not to say certain things). The requirement, in some instances, to display notices (clauses 138(2), 155(2)), or to publish an advertisement detailing a relevant offence (clause 164) may restrict the freedom not to express.

However, to the extent that the right is engaged, any limitation imposed would fall within the internal limitations to the right in section 15(3), as reasonably necessary for the protection of public order. The requirement is necessary to ensure that users or potential users of the service are aware of the concerns giving rise to the issuing of the notices and can engage with the registered service providers in an informed way. Further, the restrictions are necessary to ensuring the regime can effectively assist in protecting children, their families and other vulnerable people from harm. Accordingly, I consider these provisions to be compatible with the right to freedom of expression under the Charter.

Information-sharing

Part 8 of the Bill establishes a scheme for information sharing between ‘relevant agencies’, enabling information to be shared for a range of purposes under the Bill. Clause 803 defines a relevant agency to include the Regulator and certain other Victorian government entities with relevant functions, including a Panel, independent investigator, authorised officer or employee of the Regulator. Clause 191 provides for the application of Part 8 to courts and tribunals. Relevant agencies are permitted to share information with other bodies in a range of circumstances, including, for example, for the purposes of seeking legal advice or seeking advice and support from a registered health practitioner. Clause 192 provides a number of principles that apply to relevant agencies when carrying out a function or exercising a power under the Bill, which include giving precedence to the wellbeing and safety of service users over the right to privacy.

Clauses 197 and 198 further authorises disclosures by and to the Regulator in certain circumstances.

Right to privacy

The provisions of the Bill enabling sharing of information between relevant agencies and allowing information to be shared with the Regulator by any person, interfere with the right to privacy. Notably, the information sharing scheme explicitly privileges the wellbeing and safety of service users over the right to privacy. However, any interference with privacy authorised by these provisions will be lawful. Further, in my view, the interference with privacy is not arbitrary, as it is for the important purposes of ensuring risks to service users of social services can be appropriately identified and addressed, and facilitating the regulation of social services. Further, protections are in place to ensure privacy is not interfered with more than necessary —for example, one of the principles set out in clause 192 is that a person’s confidential information must only be collected, used, or disclosed to the extent necessary to promote the wellbeing or safety of service users. I therefore consider that these provisions are compatible with the right to privacy.

The Regulator’s power to disclose information similarly may involve an interference with the right to privacy. Under clause 197 the Regulator may disclose protected information (being information including confidential information that is not in the public domain, that is obtained by a person under the Bill) in carrying out functions or exercising powers under the Bill or any other Act if the Regulator is satisfied that the disclosure may promote the objectives of the Bill or good public administration, or is in the interests of justice, or the Regulator reasonably considers it otherwise appropriate to do so. Persons who receive such information are limited to using it for the purposes for which it was disclosed or otherwise as permitted by the Act. These limits ensure that any interference with privacy will not be arbitrary, and that information disclosed under this provision cannot be used inappropriately by the person receiving that information.

Clause 198 provides that persons may disclose information relating to a social service provider’s compliance, or to the conduct of a WCES worker or carer. The Regulator may use that information for the limited regulatory purposes set out in subsection (2), including by disclosing the information to another person or body if the Regulator considers that the compliance or conduct is more appropriately dealt with by that person or body. The Regulator may also disclose any action taken in relation to the information to the person who disclosed it if the Regulator considers it appropriate. While clause 198 involves interferences with privacy, the clause is tailored to ensure that information is only shared in appropriate circumstances for limited regulatory purposes under the Bill. I therefore consider that this clause is compatible with the right to privacy.

Disclosure to the Regulator

Clauses 331 and 340 require the relevant Secretary to disclose to the Regulator any information held by the Secretary relating to various services, applications, decisions, records and or investigations under certain provisions of the Children, Youth and Families Act 2005 and the Supported Residential Services (Community Visitors) Act 2010. Clause 332 requires the Secretary, within the meaning of the Disability Act 2006 to disclose to the Regulator any information held by the Secretary immediately before the commencement day that relates to certain matters under that Act, including information about any person or body that is registered on the register of disability service providers under s 41.

Right to privacy

While these clauses may interfere with the right to privacy to the extent that they allow information to be shared, the interference will be neither unlawful nor arbitrary. It is necessary to enable the transfer to the Regulator of certain functions currently associated with the Secretary. To the extent that it is relevant, I also consider that any limit on the right to privacy would be reasonable and justifiable in accordance with s 7(2) of the Charter.

Confidentiality provisions

Division 3 of Part 8 provides that the Regulator or a Panel may issue a confidentiality notice to a person in respect of a restricted matter (which is defined under clause 201 to include a limited range of information, such as the contents of a document seized by the Regulator, or information that would enable a person who has been required to provide a document or thing to the Regulator or Panel to be identified). The effect of such a notice is that the person to whom it is issued must not disclose the restricted matter, except in limited circumstances (for example to a person’s spouse or domestic partner, except where otherwise ordered, or where assistance is required to comply with the notice because the person does not speak English, is a child, is illiterate, or has a mental, physical or other impairment). A confidentiality notice may only be issued where the Regulator or Panel considers disclosure of the restricted matter is likely to prejudice the Regulator’s monitoring or enforcement of the Bill or Regulations made under the Bill, or the WCES, the safety and reputation of a person, or the fair trial of a person who has been or may be charged with an offence.

Right to freedom of expression

These provisions restrict the right to freedom of expression. However, in my view, any restriction is reasonably necessary for the protection of the rights and reputations of others, and for public order. The provisions ensure that the monitoring and enforcement functions of the Regulator or Panel, the WCES scheme, and the rights of other persons to personal safety, reputation, or a fair trial, are not compromised by inappropriate disclosures concerning the exercise of powers under the Bill. Confidentiality notices may only be issued in a limited range of circumstances and the provisions are appropriately tailored with a number of exceptions, which ensures that the limit on expression goes no further than reasonably necessary. I therefore consider that these clauses are compatible with the right to freedom of expression.

Freedom of Information

Clause 211 provides that the Freedom of Information Act 1982 does not apply to documents possessed by the Regulator or the Panel, to the extent that those documents contain protected information (which is defined under clause 189).

Right to freedom of expression

This may engage the right to freedom of expression by limiting the kind of information that a person may seek. However, to the extent that the right is engaged, any limitation imposed would fall within the internal limitations to the right in section 15(3), as reasonably necessary to respect the rights and reputation of other persons, or for the protection of public order.

Civil penalty proceedings

The Bill introduces a civil penalty regime (Part 10 Division 4), and under clause 298 the Regulator may apply to a court for a civil penalty order in relation to a contravention of a civil penalty provision. The Bill provides that civil proceedings must be stayed if criminal proceedings are (or have been) commenced against the person for an offence constituted by conduct that is substantially the same as that the subject of the contravention, unless the person is not convicted (in which case the civil proceedings can resume) (clause 301). However, criminal proceedings may be commenced against a person for conduct that is substantially the same as conduct constituting a contravention of a civil penalty provision regardless of whether a civil penalty order has been made against the person (clause 302).

Right not to be tried or punished more than once for the same offence

The right not to be tried or punished more than once for the same offence is engaged in circumstances where criminal proceedings are commenced after the imposition of a civil penalty under clause 302. However, in my view the parallel operation of civil and criminal penalties will not limit the right not to be punished more than once. This is because the right against double punishment does not extend to civil proceedings or penalties.

I note that penalties characterised as civil penalties under legislation may engage the criminal process rights under the Charter where the penalty is of such a magnitude that a court may consider that it involves penal consequences. While the maximum pecuniary sanctions under some clauses of the Bill are substantial, the purpose of the civil penalty regime in the Bill is to encourage regulatory compliance, and is necessary due to the serious risks of harm to vulnerable service users that may arise from a contravention of the Bill. The purpose of the civil pecuniary penalties is to encourage regulatory compliance, and is necessary due to the serious risks of harm to vulnerable service users that may arise from a contravention.

Relevantly, the civil penalty provisions apply to people engaging in activities covered by the regulatory scheme, or failing to comply with important obligations under the Bill, and will have limited application to the public more broadly. Further, a civil penalty order will be enforceable as a judgment debt and a person will not be liable to be imprisoned for a failure to discharge the debt. Finally, I note that clause 46, which enables either civil or criminal penalties to be imposed for an aggravated breach of the Social Service Standards, and which provides for both pecuniary penalties and a term of imprisonment, is excluded from the operation of cl 302, meaning that a criminal prosecution could not be brought under the Act if civil proceeding for breach of that provision had previously been commenced for the same conduct. Accordingly, I consider that the civil penalties under the Bill to which clause 918 applies are truly civil in nature, and accordingly the right not to be tried or punished more than once under the Charter is not limited.

Right to test evidence

Clauses 315 and 316 provide for the preparation of an evidentiary report by an authorised officer or a person who assists an authorised officer take action in certain circumstances, and an evidentiary certificate by the Regulator or authorised officer regrading certain matters. The reports and certificates provided under Clauses 315 and 316 are taken to be evidence of certain matters provided for therein in proceedings for offences under the Act.

Right to a fair hearing (s 24)

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing.

These clauses engage the right to a fair hearing because a person who may be the subject of the report or certificate may be affected by the matters contained in the certificate or report and unable to challenge their contents. However, the provisions do not limit the right to a fair hearing, because they enable reports and certificates only in relation to technical matters, such as the methodology used to examine or analyse a thing or sample, and matters that are otherwise removed from the main facts at issue (for example, the fact that a stated document is a record of registration). Further, the provisions only state that the records and certificates provide evidence of the matters contained therein. They do not provide conclusive proof of those matters, and the accused may therefore be able to provide evidence in rebuttal. I therefore consider that these provisions are compatible with the right to a fair hearing.

Offences ‘without reasonable excuse’

Clauses 109, 122, and 149 provide that it is an offence to do certain things without ‘reasonable excuse’. This places a burden on the accused to raise evidence that there exists a reasonable excuse, for example, for their refusal or failure to comply with a request for information, documents or an appearance before the Regulator (clause 109(7)).

Rights in criminal proceedings

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

The right to presumption of innocence is relevant to this provision because of the requirement that a person raise evidence that they have a ‘reasonable excuse’ to avoid criminal responsibility. However, in my view, although these provisions require an accused to adduce certain evidence, they do not limit the right to be presumed innocent. The prosecution must still prove the essential elements of the relevance offences; an accused need not prove any matters in order to escape liability. Further, the matters constituting a ‘reasonable excuse’ will usually be matters that are particularly within the knowledge of the accused. Therefore, the right to be presumed innocent under section 25(1) of the Charter is not limited by these provisions.

Under Clause 111, it is a defence to the provision of false or misleading information if the person believed on reasonable grounds that the information, statement or document provided was true or not misleading. This imposes a burden on the accused to establish the defence, which may amount to a limit under the right to be presumed innocent (to the extent that the state of mind of the accused is an essential element of the offence). However, in my view, the limitation (if any) is reasonably justifiable under s 7(2). In particular, the prosecution is still required to prove all the other elements of the offence—this provision simply carves out a defence in circumstances where the person was not aware of the misleading or false nature of the information (unless the lack of awareness was unreasonable—for example due to the defendant’s failure to take proper care to ensure the information is correct). The existence of this defence is a matter that is in the particular knowledge of the accused, and so it is appropriate that the defence bear the onus of establishing the defence. Further, the defence must only be established on the balance of probabilities, not beyond reasonable doubt. In the circumstances, the risk of conviction of an innocent person as a consequence of this provision is very low. I therefore consider that to the extent, if any, that the right to presumption of innocence is limited by this provision, any limit is reasonable and justified in accordance with section 7(2).

Supported residential services

Part 9 of the Bill provides for supported residential services, which are premises where accommodation and personal support are privately provided or offered to residents for a fee (clause 215). Clauses 217 and 218 provide for the compulsory collection by a residential service provider (provider) of the names and contact details of a resident’s nominated person, guardian and or administrator. Clauses 219–222 also provide a process for and limits on providers who manage or control the money of residents with their consent, including by requiring providers to keep a record of incoming money and any expenditure (clause 220) and providing itemised statements and records (clause 221).

Clauses 234 and 235 require a provider to notify the Regulator if they fail to secure the appropriate care or are unsuccessful in obtaining appropriate personal support for a person. If this occurs, the Secretary must make enquiries and assess how a resident’s needs may be met, including by requesting reports from registered medical practitioners or other health or care professionals. Such persons will be authorised to disclose a resident’s personal or medical information to the Secretary (clause 236).

Right to privacy

While these clauses may interfere with the right to privacy to the extent that they require information to be collected about a resident’s nominated person, guardian or administrator by providers, and allow providers to access residents’ financial information, the interference will be neither unlawful nor arbitrary. Such disclosures are for the important purpose of providing a resident with adequate residential services, or care or personal support. Such disclosures also ensure the transparency of the management and control of resident’s money by providers. I therefore consider that these clauses are compatible with the right to privacy. To the extent that it is relevant, I also consider that any limit on the right to privacy would be reasonable and justifiable in accordance with s 7(2) of the Charter.

Notices to vacate from supported residential services

The Bill provides for various circumstances in which a provider may give a notice to vacate to a resident (clauses 261–269). These include on grounds that the resident is in need of more health care or more support than is available from the provider (clauses 266 and 267). Residents may apply to VCAT to challenge the grounds on which the notice to vacate was made (clause 243). However if they are unsuccessful, VCAT’s powers include to make orders to vacate in certain circumstances (clause 277) and to issue a warrant to remove a resident (clause 281).

Right to privacy

These clauses may engage resident’s right to privacy, which includes privacy of the home, by allowing for persons to be ordered to or subject to a warrant to leave a supported residential service. However, any interference will be neither unlawful nor arbitrary. Orders to vacate and warrants may only be ordered in limited circumstances and are subject to notice requirements, time limits and as mentioned, the opportunity for residents to apply to VCAT challenging the validity of an underlying notice to vacate. I therefore consider that these clauses are compatible with the right to privacy.

Right to equality

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

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

The clauses which permit providers to issue residents with notices to vacate on grounds that they require more health care or personal support than can be provided may disadvantage people with more severe impairments. This could be seen to constitute indirect discrimination within the meaning of the EO Act and an interference with the Charter right to equality. However, although the provisions may permit persons to be disadvantaged on the basis of protected attributes, the requirement that providers be able to issue notices to vacate to persons they cannot effectively care for or provide treatment to is a reasonable one. Although the effect may be felt inequitably by certain persons, the measure is based on ensuring providers have adequate resources and appropriate health care and personal support available for particular residents.

Further, the issuing of such a notice to vacate can only occur after the provider has notified the Regulator that they failed to secure the appropriate care or are unsuccessful in obtaining appropriate personal support for a person. As discussed above, if this occurs, the Secretary must make enquiries and assess how a resident’s needs may be met (clauses 235–236). Notice of a notice to vacate must also be provided to the Secretary within a prescribed timeframe (clause 260). These measures provide safeguards to ensure that appropriate care is identified for affected residents and that such notices to vacate are only issued in limited circumstances. Therefore, the measure is not an unreasonable one, and will not be indirect discrimination under the EO Act. Accordingly, I consider that the right equality under the Charter is not limited by the clauses that provide for notices to vacate being given by providers of supported residential services.

Hon Luke Donnellan MP

Minister for Child Protection

Minister for Disability, Ageing and Carers

Second reading

Mr DONNELLAN (Narre Warren North—Minister for Child Protection, Minister for Disability, Ageing and Carers) (10:45): 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:

Victorians access social services for support during the most difficult and challenging times in their lives. As a community, we expect that providers of these services deliver them in a safe manner that supports the human rights of those who use them.

Current regulation is fragmented and based on separate schemes that were developed in isolation from each other more than a decade ago. Some social services (including family violence and homelessness services) are not subject to a legislated regulatory framework at all, and rely on funding agreements to establish quality and safety benchmarks.

While each scheme seeks to protect people from abuse and harm, together, they fail to reflect the contemporary service delivery landscape. Stakeholders have repeatedly identified gaps, overlaps and duplication, and reported confusion about regulatory requirements. And recent reforms to social services delivery have revealed a growing problem of regulatory gaps and overlaps facing organisations that provide multiple services across different sectors.

The current regulatory arrangements are administered by the Human Services Regulator as a delegate of the Secretary. They are not supported by a comprehensive suite of regulatory tools enabling proportionate responses to the risk of non-compliance. The inadequacy of the underlying legislative framework has meant avoidable harms have continued with the regulator having little, if any, ability to intervene at an early preventative stage. In particular, the COVID-19 pandemic has exposed shortcomings in Victoria’s social services regulatory regime. For example, the Supported Residential Services (Private Proprietors) Act 2010 has insufficient powers to suspend the operation of facilities with unacceptable risks to residents and move them to a safer setting. We need to take steps now to address these known gaps.

Significant efforts to minimise these harms are warranted. There is a pressing need for reform of the regulation of social services to address these regulatory shortcomings. A high-quality regulatory framework for social services provides the foundation for improved responses to risks of harms to people who use social services.

The key identified issues contributing to these regulatory shortcomings include:

• Gaps in regulatory coverage as some social services are not subject to statutory regulation, for example family violence and homelessness services. Safety oversight of these funded services relies entirely on contractual arrangements.

• Duplicative regulatory requirements in an integrated service system where many providers of social services deliver multiple categories of services. These may be regulated under multiple different schemes, which creates complexity for organisations seeking to comply and ties up limited resources in compliance activities.

• Lack of intelligence to inform regulatory action and identify risks early. Early signs of a problem are not always able to be identified which creates the risk that service providers continue to provide unsafe services, until a significant catastrophic event occurs.

• Conflict between regulating and funding services as the Department of Families, Fairness and Housing regulates the service system and is also responsible for ensuring adequate numbers of service providers to meet community needs. In some instances, the department is also responsible for regulating services that it funds directly.

Our regulatory infrastructure must be improved to provide service users with better protection. The current framework has meant the regulator has little ability to intervene at an early prevention stage. To ensure greater protection of vulnerable service users, a comprehensive regulatory framework is required to ensure providers of social services are supported to comply with the Social Services Standards. In addition, there is a need to consciously and systematically create standards that prevent abuse and neglect, promote service user safety, and properly respond to allegations of abuse and neglect. It is also required to deal with providers that fail to provide a safe environment for vulnerable service users.

The new regulatory framework established by this Bill is significant. The reforms will establish a regulatory framework that is applicable across a range of social service types. Service types will be phased into the new framework through regulations. This phasing is necessary to:

• contain the breadth of the reforms and allow for a focus on those sectors where risks from service provision and weaknesses in current regulatory oversight are best known to government

• ensure the changes can be accommodated by the relevant sectors and successfully implemented, in a context of increasingly integrated sectors and the scale of recent and ongoing reforms

• avoid making changes that may be inconsistent with findings and recommendations from ongoing Royal Commissions and future reviews.

It is therefore proposed that the initial scope or phase focuses on service types already required to comply with standards through funding agreements. This scope includes:

• Services provided in the community to support children and families subject to registration under the Children, Youth and Families Act 2005, including out of home care, but excluding maternal and child health services, schooling and early childhood education.

• Regulatory functions that currently sit with the Disability Services Commissioner.

• Supported residential services registered under the Supported Residential Services (Private Proprietors) Act 2010, including privately operated businesses that provide Victorians with accommodation and support with everyday activities.

• Family violence services that are required to comply with the Human Services Standards, including case management, support and accommodation services provided to people experiencing family violence and services for perpetrators.

• Homelessness services that are required to comply with the Human Services Standards, including referral, support and accommodation services.

It is proposed that both non-government and government-delivered services will be covered. It is important that we ensure that government-delivered services are held to the same standards and accountability mechanisms by establishing a consistent regulatory framework across both non-government and government-delivered services.

The new regulatory framework will establish a new Social Services Regulator who will be a separate statutory body. The Regulator will require social service providers to be registered and comply with a new set of Social Services Standards that are outcomes-focussed and appropriately target risk. The Regulator will manage a public register of social service providers and have a comprehensive set of compliance and enforcement tools to monitor provider conduct against regulatory obligations and use enforcement tools to promote a contemporary approach to compliance and respond to non-compliance.

Specifically, the Bill will make social services safer for service users and prevent abuse and neglect by:

• Establishing a mandatory registration framework for providers of in-scope services. Registration will authorise organisations to deliver different types of social services, subject to their ability to provide safe services.

• Incorporating new foundational Standards that will form part of all registered providers’ ongoing obligations. To ensure that regulatory requirements appropriately target risk, the framework will establish detailed outcomes and requirements that relate to particularly vulnerable clients (such as children), particular service environments (such as residential services), and/or particular service types (such as those that involve physical interventions). The Standards to be embedded in the Bill are:

o Safe service delivery—Services are safely delivered based on assessed needs.

o Service user agency and dignity—Services are person-centred and respect and uphold client rights and agency.

o Safe service environment—Services are provided in a safe, secure and fit-for-purpose environment.

o Feedback and complaints—Service users are supported to provide feedback, complaints or concerns about service safety.

o Accountable organisational governance—Effective governance and organisational systems support safe service delivery.

o Safe workforce—Services are delivered by a workforce with the knowledge, capability and support to deliver safe services with care and skill.

• Improving the approach to regulation of individual social service workers and carers by establishing a contemporary exclusion scheme. The Worker and Carer Exclusion Scheme focusses on those carers and workers in high-risk sectors whose risks cannot be adequately mitigated through service provider regulation alone. The scheme will initially focus on carers but can be expanded to other high-risk workers through regulations as government deems appropriate.

• Providing the Regulator with a broad range of contemporary monitoring and enforcement powers to promote compliance with the Standards. This will include:

o enabling the Regulator to respond to less serious non-compliance with the Standards by issuing official warnings or infringement notices, while also being able to respond to more serious breaches by accepting enforceable undertakings, issuing compliance notices and seeking various remedies from a court, including criminal or civil penalties.

o powers to enter and inspect certain premises without an entities’ consent in limited circumstances. To ensure these powers are proportionate and appropriately targeted, numerous safeguards are proposed including that inspections only take place in business hours unless permitted under a warrant, and where the Regulator reasonably believes the Act or Regulations have been contravened.

• Improving arrangements for gathering and sharing regulatory intelligence to information action and minimise regulatory duplication.

These reforms are supported by a comprehensive consultation process undertaken by the department across government and with industry stakeholders while navigating the limitations of consulting during the COVID-19 pandemic. I want to take this opportunity to thank every person and organisation that took the time to contribute to this important work. Consultation activities included providing an information pack and sector updates sent directly to stakeholders and promoted and housed on the department’s Funded Agency Channel website. A range of information sessions and forums were held across in-scope sectors and these provided the opportunity for the department to provide clarity about:

• the structure and phasing of the reforms, and

• key reform features specifically designed to address administrative burden.

The consultation phase has shown there is general support for the reforms. All stakeholders agree that keeping people experiencing vulnerability safe is a priority that we all share. This Bill supports that shared priority, and while the reforms will require support for organisations to adapt to the new approach, we can all agree that we cannot compromise when it comes to safety.

To support change management, a phased approach is proposed to enable in-scope service providers to transition to the new regulatory framework ahead of its commencement. The requirement to comply with the Standards is expected to commence from 1 July 2023. This will provide an appropriate lead time to support service providers to undertake any operational and procedural changes to prepare for the new arrangements. Extensive consultation with the sector is proposed in the lead-up to the Standards being gazetted, as well as during implementation to ensure appropriate compliance codes and regulator guidance is in place to support compliance with the Standards upon commencement of the scheme.

In conclusion, the reforms in this Bill are important. They will promote and enhance regulation of a wide range of Victorian social services and in doing so, will protect vulnerable service users from abuse and neglect.

I’m proud to be part of a Government that is continually working to improve the safety and wellbeing of our most vulnerable Victorians. This Bill will ensure that Victoria’s regulatory framework for social services is as strong as possible to promote the safety of Victorians.

I commend the Bill to the house.

Mr T BULL (Gippsland East) (10:46): I move:

That the debate be now adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday, 18 August.