Wednesday, 20 March 2024

Disability and Social Services Regulation Amendment Bill 2024

Statement of compatibility

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (10:45): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Disability and Social Services Regulation Amendment Bill 2024:

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 Disability and Social Services Regulation Amendment Bill 2024 (the Bill).

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

Overview of the Bill

The main purpose of the Bill is to amend the Social Services Regulation Act 2021 (SSR Act) – which will amend the Disability Act 2006 (Disability Act) – to transfer the existing functions and powers of the Disability Services Commissioner (Commissioner) to the Social Services Regulator (Regulator). The Bill also amends the SSR Act to provide for the delay of the commencement of the Worker and Carer Exclusion Scheme (WCES), and the Children, Youth and Families Act 2005 (CYF Act) to transfer certain oversight functions of the Secretary to the Regulator while WCES is delayed.

The Bill also:

• amends the Residential Tenancies Act 1997 (RTA) to further provide for matters in relation to Specialist Disability Accommodation (SDA) dwellings; and

• makes consequential amendments to other Acts, including the Regulatory Legislation Amendment (Reform) Act 2024, Children and Health Legislation Amendment (Statement of Recognition, Aboriginal Self-determination and Other Matters) Act 2023.

Specifically, the Bill:

• expands the role and functions of the Regulator to absorb the complaints handling and investigation functions of the Commissioner;

• abolishes the office of the Commissioner;

• establishes the role of the Associate Social Services Regulator (Associate Regulator) to whom the Regulator can delegate their powers, duties and functions under the SSR Act;

• provides for the delay of the commencement of the WCES;

• transfers the Secretary’s regulatory functions in relation to the investigation of out of home carers to the Regulator;

• delays the commencement of the confidentiality notice provisions within the SSR Act;

• transfers information sharing, confidentiality and reporting provisions relating to Commissioner functions from the Disability Act to the SSR Act;

• makes minor amendments to residential notice provisions for SDA dwellings in the RTA; and

• amends the definition of a supported residential service in the SSR Act and Supported Residential Services (Private Proprietors) Act 2010 to align with previous reforms on SDA dwellings.

Human rights issues

The Bill will amend the SSR Act and the CYF Act to confer on the Regulator new functions and powers for the purposes of:

• dealing with complaints and investigations in relation to disability services; and

• providing regulatory oversight of out of home carers, including in relation to the conduct of investigations into allegations against carers, and the administration of the Victorian Carer Register.

The Regulator will assume the functions of the current entities responsible for these functions, being respectively the Commissioner and the Secretary. The relevant provisions relating to the Commissioner will be consequently repealed by the Bill.

The Bill does not alter or expand the existing scope of the substantive powers currently assumed by the Commissioner and Secretary, nor does it increase the existing potential for those powers to be exercised in ways that limit human rights. Some of these limitations have been discussed previously by the Statement of Compatibility to the Disability Amendment Bill 2017. That said, given the nature and extent of limitations on human rights that may occur as a result of the exercise of the powers being transferred, I will now state why these limitations are considered reasonably justified and compatible with the Charter.

The conduct of investigations impacts upon the rights of persons who provide or work in disability services, including employees and volunteers, and out of home carers, who may be the subject of an investigation overseen by the Regulator. The human rights that might be limited by these powers include: privacy and reputation (s 13(a)); freedom of expression (s 15(2)); property (s 20); fair hearing (s 24(1)); and protection against selfincrimination (s 25(2)(k)). Further, the abolition of the office of the Commissioner, the removal of certain functions of the Secretary, and repeal of the scheme regulating out of home carers under Part 3.4 of the CYF Act, could engage the right to equality under section 8(3) of the Charter, for people with disability, children and young people.

The Bill further promotes a range of human rights under the Charter by preserving existing protections in the Disability Act and CYF Act. The new investigation and oversight powers of the Regulator in Parts 2 and 3 of the Bill, transferred from the Commissioner and Secretary, and the appointment of the Associate Regulator provide safeguards against abuse or neglect of people with disability and children, promoting rights under the Charter, including to equality (s 8); privacy and the home (s 13(a)); liberty and security (s 21); humane treatment when deprived of liberty (s 22), and to be free from cruel, inhuman or degrading treatment (s 10(b)). The protection of children (s 17(2)) is also promoted by increasing the safeguards for children receiving disability services, and children and young people in receipt of out of home care.

Further, the Bill’s proposed amendments to Part 12A of the RTA are aimed at ensuring timely notifications regarding residential notices, which are necessary to enable the Public Advocate to undertake their safeguarding role. As these amendments relate to such matters as notices to vacate and the termination of SDA residency agreements, these reforms will promote the Charter rights to equality (s 8), to not have one’s home unlawfully or arbitrarily interfered with (s 13(a)), and to property (s 20).

Therefore, 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 people with disability, children 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.

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.

Abolition of the role of the Commissioner

Clause 23 of the Bill includes amendments to abolish the office of the Disability Services Commissioner (Commissioner), and Division 3 of Part 2 of the Bill amends the SSR Act to remove provisions relating to the Commissioner in the Disability Act. The role of the Commissioner is a statutory role that is being abolished due to the significant reduction in the scope of services covered by the Commissioner since the transition of many disability service providers to the National Disability Insurance Scheme (NDIS). This narrowing scope means the Commissioner is not viable as a stand-alone regulator. Accordingly, the Commissioner’s complaints handling and investigation functions for people accessing Victorian Government-funded disability services are being transferred to the Regulator.

The abolition of the office of the Commissioner could engage the right to equality under section 8(3) of the Charter, for people with disability. This is because the State has a positive duty to protect persons from discrimination on the basis of disability, and the abolition of the entity that was designed to support the oversight of the Victorian disability services sector, including relevant complaints and investigation processes, might result in an erosion of protections against disability-based discrimination.

However, I consider that the abolition of the Commissioner would not in fact limit the right to equality under section 8(3) of the Charter, as Clause 19 of the Bill amends the SSR Act to enable the Regulator to absorb the complaint handling and investigation functions of the Commissioner. Further, the creation of the new role of Associate Regulator in clause 11 of the Bill provides for a dedicated Governor-in-Council appointed role which could manage the future complaint functions of the Regulator.

As such, there will be no reduction in safeguards for people with disability who continue to receive State-funded disability services. New Parts 9A, 9B and 9C of the SSR Act empower the Regulator to resolve complaints, conduct investigations into the provision of disability services, and protect the rights of people with disability. Section 15 of the SSR Act, as amended by the Bill, will enable the Regulator to delegate functions to the Associate Regulator as needed, including the functions relating to complaints and investigations into the provision of disability services.

The Commissioner’s powers under the Disability Act to initiate investigations into abuse and neglect occurring in the provision of disability services will not be transferred to the Regulator in relation to current disability service providers. This is because the Regulator has an existing power to investigate registered social service providers, which include disability service providers, where there are concerns with safe service delivery and breaches of service user agency and dignity. Therefore, this change will not result in an overall reduction in powers or functions of the Regulator in relation to initiating investigations into abuse or neglect with respect to current disability service providers.

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

Removal of Secretary’s regulatory powers in relation to out of home care

Division 1 of Part 3 of the Bill transfers to the Regulator the Secretary’s responsibilities and functions under Part 3.4 of the CYF Act, which concerns the regulation of out of home carers. These functions relate to the conduct of investigations into allegations against carers, and administration of the Victorian Carer Register, both of which are designed to prevent individuals found to present an unacceptable risk of harm to children in care from working in the out of home care sector.

As the Secretary has a statutory responsibility under s 16 of the CYF Act to promote the prevention of child abuse and neglect, the reduction of the scope of the Secretary’s functions and powers could engage the right to equality under section 8(3) of the Charter, for children and young people.

However, I consider that the above right is not limited by the repeal of the Secretary’s regulatory functions in relation to out of home care as these functions will simply be assumed by the Regulator, ensuring that there will be no reduction in safeguards for children in receipt of out of home care. On the contrary, the above approach will provide for role clarity between the Secretary and the Regulator, thereby enhancing the exercise of the respective functions.

Delay of the commencement of the WCES

Clause 25 of the Bill amends the commencement of the SSR Act to provide for the delay of the commencement of the WCES, which will operate as a negative licensing scheme to enable workers and carers to be excluded from working in the out of home care sector where their conduct shows they pose an unjustifiable risk of harm to children, replacing the current scheme under the CYF Act.

The delay of this scheme could engage the right to equality under section 8(3) of the Charter, for children in out of home care services. This is because the State has a positive duty to protect persons from discrimination on the basis of age, and the delay of a scheme designed to enhance protections for children and young people against neglect and abuse, might result in an erosion of protections against such discrimination.

However, the continued operation of the Victorian Carer Register and investigation of out of home carers, the current scheme under the CYF Act, while the WCES is delayed, preserves existing protections for children in out of home care, such that these amendments would not constitute direct or indirect discrimination against children.

Repeal of Part 3.4 of the CYF Act

Clause 86 of the Bill proposes to repeal Part 3.4 of the CYF Act upon the commencement of Part 5 of the SSR Act. As Part 3.4 of the CYF Act provides a regulatory framework aimed at the protection of children in out of home care, the repeal of Part 3.4 of the CYF Act could engage the right to equality under section 8(3) of the Charter for children and young people in out of home care. However, as this scheme is being replaced by WCES as set out in Part 5 of the SSR Act, which sets out a consolidated regulatory regime designed to safeguard the rights of children in receipt of out of home care, I consider that this right will not be limited.

Right to privacy and reputation

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

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.

Disclosure to the Regulator

The Bill proposes to transfer certain information from the Secretary and the Commissioner to the Regulator to enable the Regulator to exercise their new functions. Specifically:

• Clause 85 of the Bill requires the Secretary to disclose to the Regulator any information held by the Secretary in relation to the administration of Part 3.4 of the CYF Act; and

• Clause 23 of the Bill provides transitional provisions related to the abolition of the office of the Commissioner and the transfer of their functions to the Regulator, which includes new section ‍338B of the SSR Act which would, among other things

• vest all rights, properties, assets, debts, liabilities and obligations of the Commissioner in the Regulator; and

• substitute the Regulator as a party to any proceedings, arrangements, memoranda of understanding or contracts of the Commissioner.

While these provisions 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. This is because these amendments are carefully confined to their statutory purpose, to enable the transfer to the Regulator of certain functions currently administered by the Secretary and Commissioner. Therefore, the proposed disclosure of information does not extend beyond what is reasonably necessary to achieve the legitimate aim of the Bill, such that it is reasonable and proportionate to the Bill’s important objectives. Further, existing privacy protections will apply in the SSR Act concerning further use or disclosure of this information. For example, the limitations on disclosure of protected information in section 196(2).

Information sharing

New section 283ZZF of the SSR Act, inserted by clause 19, enables the sharing of information acquired in the course of administering the new functions transferred from the Commissioner, including personal and health information in relation to clients and information about staff of a disability service provider and a regulated service provider. This provision is necessary for the effective regulation of disability services in Victoria. Privacy is protected through provisions that prohibit the use of the information other than as authorised or necessary for the purposes or in the circumstances provided for in new section 283ZZG.

New section 194A of the SSR Act, inserted by clause 27, will enable the Regulator to use information it obtains when investigating the conduct of a carer under the CYF Act, to inform its regulatory functions under the SSR Act. For example, where an investigation of a carer reveals potential non-compliance with the Social Services Standards by a registered service provider, which may warrant further investigation by the Regulator under the SSR Act.

While these provisions engage the right to privacy, this interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in section 13 of the Charter.

Investigation powers

Clauses 14 and 15 expand the application of the existing entry powers of authorised officers to accountability investigations, which are certain types of investigations in relation to the provision of disability services and regulated disability services. Accountability investigations are investigations undertaken by the Regulator into complaints about current and former disability service providers and regulated disability service providers, those initiated by the Regulator into former disability service providers and current and former regulated service providers, and investigations referred by the Minister. The Minister may refer certain investigations relating to current and former disability service providers and regulated service providers. These increased powers are designed to facilitate the operation of the expanded complaints and investigation functions of the Regulator.

Clause 16 of the Bill further expands the seizure powers pursuant to a search warrant to any document or thing not named or described in the warrant if the authorised officer reasonably believes that the document or thing may afford evidence that is relevant to an accountability investigation. Clause 17 authorises an authorised officer to inspect, examine, make enquiries or observe any activity at the premises including in relation to a person with a disability who is receiving or has received services on the premises, and, if relevant to the investigation, to see and interview a person with disability, their relative or any other person of significance to them who is on the premises. However, clause 18 of the Bill prevents interviews from taking place with a person with a disability unless the authorised officer has first obtained the consent of the person being interviewed, or if the person is unable to consent, the consent of their guardian, or if none, the next of kin of the person. Further, if interviewing a person with a disability, the authorised officer is required to take all reasonable steps to mitigate any negative effect of the interview on the person and allow the person’s guardian or next of kin to be present.

These powers engage the right to privacy in section 13 of the Charter, which protects against unlawful and arbitrary interferences with a person’s privacy, family, home or correspondence. While the powers may involve some interference with privacy, these powers are necessary to ensure the Regulator is able to conduct an effective investigation into complaints, systemic or individual issues of abuse or neglect of people with disability, or investigations referred by the Minister. The powers inserted by clauses 16 and 17 are further subject to the various safeguards outlined.

However, I note that clause 34 repeals section 132F(2) of the Disability Act, which prevents the powers being used to inspect, copy or remove medical records unless the person with disability, their guardian or next of kin has consented. The Bill does not introduce a corresponding provision in the SSR Act to maintain this safeguard to privacy interference. Instead, to provide for greater coherency and consistency within the SSR Act in relation to the general powers of authorised officers in relation to documents, for the purposes of an accountability investigation, powers of authorised officers in relation to documents will reflect the existing powers after entry by authorised officers in section 119 of the SSR Act, which includes their existing safeguards. This will mean that, for the purposes of an accountability investigation, an authorised officer will be able to inspect or examine documents, and only seize documents if they believe on reasonable grounds that the seized document or thing is relevant to an accountability investigation (see clause 17). Further, to the extent that the SSR Act does not expressly provide protections in respect of medical records, people with disability are afforded protections under the Privacy and Data Protection Act 2014 (PDP Act) and the Health Records Act 2001. Accordingly, as people with disability will continue to enjoy various safeguards to their privacy under these Acts, I consider that any interference with privacy is neither unlawful nor arbitrary.

Although the powers involve some interference with the privacy of the residents and occupier(s) of the premises, I consider that the interference is neither unlawful nor arbitrary and is therefore compatible with the right to privacy in section 13 of the Charter.

Ability to publish certain matters including adverse comments about a person

New section 283ZZK of the SSR Act, inserted by clause 19, requires the Regulator to report on investigation findings that may include adverse comments or opinions about individuals or service providers, which may have an impact upon a person’s work, their relationships (including as a carer) and their reputation generally. Accordingly, the exercise of the Regulator’s functions may engage the right to privacy and reputation in section 13 of the Charter. However, the Regulator’s power to make and provide reports of referral investigations or initiated investigations into systemic abuse and neglect or individuals to the Minister or Secretary, and to provide to Parliament reports into systemic abuse and neglect that may be published, are for the important purpose of protecting the rights of people with disability.

Further, I consider that the procedural safeguards provided for in the Bill ensure compatibility with the rights to privacy. In particular:

• new section 283ZT(2) of the SSR Act expressly provides that the Regulator is bound by the rules of natural justice, and must give a person an opportunity to make submissions before making a decision affecting that person;

• where the Regulator conducts a hearing in respect of an investigation, new section 283ZW requires that the service provider be provided notice of the hearing and provides that if the investigation is to consider allegations against any person, notice of the hearing must also be given to that person;

• new section 283ZZK of the SSR Act requires that the Regulator provide individuals with a reasonable opportunity to comment before any adverse comment about them is published in a report to the Minister or Secretary, and section 283ZZL requires that individuals cannot be named or identified in reports given to Parliament;

• new section 316(1)(jc) of the SSR Act, inserted by clause 21, empowers the Governor in Council to make regulations to prescribe processes for the naming of service providers for the purposes of reporting information required in the annual report of the Regulator. This enables safeguards to be included which the Regulator will be obliged to comply with.

Accordingly, as any interference with privacy and reputation will be authorised under legislation and is subject to appropriate safeguards, I consider the Bill does not amount to an arbitrary interference with these rights.

Fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The term ‘civil proceeding’ in section 24(1) has been interpreted broadly to encompass administrative decision making of the kind provided for in the Bill.

Transfer of the Commissioner’s functions to the Regulator

The above procedural safeguards discussed in relation to accountability investigations therefore also ensure that these provisions are compatible with the right to a fair hearing.

Further, the new section 283ZZC provides that the Regulator, Associate Regulator and their staff are not able to be compelled to give evidence in a court in relation to an accountability investigation unless the court gives leave, similar to existing section 132U of the Disability Act. This provision promotes the effective function of the Regulator and their staff in conducting accountability investigations, but nevertheless enables a court to exercise its discretion to compel persons to give evidence with leave, which is a feature that protects a person’s right to a fair hearing.

Delayed commencement of confidentiality notice provisions

Clause 25 of the Bill proposes to delay the commencement of the confidentiality notice provisions in Division ‍3 of Part 8 of the SSR Act. These provisions empower the Regulator or Panel to issue a confidentiality notice to a person specifying a restricted matter, which can be any matter that the Regulator reasonably considers would be likely to prejudice an investigation, a fair trial of a person charged with an offence, or the safety or reputation of a person. The purpose of these notices is therefore to protect a person’s rights to personal safety, reputation, or a fair hearing, against inappropriate disclosures concerning the exercise of powers under the SSR Act. As such, this amendment may be considered to engage the Charter rights to life (s 9), reputation (s 13(b)), and to a fair hearing (s 24(1)).

Given that confidentiality notice provisions serve a protective purpose, their delayed commencement is relevant to the extent that such a delay constitutes a decrease in the level of protection afforded to human rights. However, the delayed commencement is considered necessary to facilitate corresponding amendments to be made to the Victorian Inspectorate Act 2011, which will provide for clear oversight powers to be provided to the Victorian Inspectorate for the effective monitoring of the use of these powers by the Regulator or Panel (to which criminal penalties attach for non-compliance and which are coercive in nature, hence constitute limits on other rights). Given the issuing of these notices also conversely affects the rights of the person subject to a notice (including their freedom of expression), I consider it appropriate that their commencement be delayed until the proper oversight scheme is in place and can be operationalised effectively. Accordingly, to the extent that the delay to the commencement of the confidentiality notice provisions may delay the application of protections to some rights, it ultimately serves a legitimate purpose of ensuring these coercive powers are subject to appropriate safeguards.

Freedom of expression

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. The right to freedom of expression in section 15 of the Charter has been interpreted as encompassing a right to access information in the possession of government bodies, at least where an individual seeks information on a subject engaging the public interest or in which the individual has a legitimate interest.

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

Disclosure of information and confidentiality provisions

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

• Information can be provided to a range of persons and bodies under new section 283ZZF of the SSR Act;

• The Regulator is required to provide a person with disability (or their guardian or next of kin as relevant) who was the subject of an initiated investigation, and any person who is alleged to have abused or neglected the person with a disability in relation to an individual initiated investigation, a copy of the Regulator’s decision, including reasons for the decision (see new section 283Y);

• The Regulator may give a copy of a report of a systemic initiated investigation to the clerk of each house of Parliament (s 283ZZL(1)).

However, there are otherwise limits upon the extent to which information may be disclosed:

• New section 283ZZG places limits on the Regulator, the Associate Regulator, their delegates, and staff of the Regulator being able to disclose information obtained by them in the performance of their functions, which includes investigations; it is also noted that the existing equivalent limitation on information disclosure under the Disability Act will also be saved under clause 34, meaning that former Commissioners and staff will continue to be limited in their ability to disclose such information; and

• New section 283ZZL precludes the Regulator from giving a copy of a report to the clerk of each house of the Parliament if the report identifies or names an individual, or contains information that enables an individual to be identified.

These confidentiality provisions are necessary to protect the privacy of individuals and to ensure the Regulator can conduct effective investigations, by enabling persons to provide information to the Regulator in the knowledge that it will be kept confidential.

Therefore, while there are restrictions upon the ability to access information in the possession of the Regulator, those limits are reasonably necessary to respect the rights of others, and are therefore compatible with the right to freedom of expression.

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.

Search and seizure powers

The expanded seizure powers under a search warrant, which authorise the removal of any document or thing not named in the warrant but which are relevant to an accountability investigation (clause 16 of the Bill) may engage property rights under section 20 of the Charter. This could also be said of the expanded power of authorised officers to be able to seize any document or thing if they believe on reasonable grounds that the seized document or thing is relevant to an accountability investigation (new section 119(d)(iv) of the SSR Act, as inserted by clause 17(2)). However, the provisions empowering the removal of documents or things do not limit property rights, as any interference with property through such removal would be undertaken in accordance with the provisions of the Bill, which are accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct.

Therefore, even if clauses 16 and 17 could be considered to deprive a person of property, any such deprivation will be ‘in accordance with law’ and will therefore not limit the Charter right to property. In addition, any deprivation of property is reasonably necessary to achieve the important objective of protecting the rights of people with disability.

Protections relating to investigations

Clause 19, which inserts section 283ZZCC into the SSR Act, provides that a person who makes a disclosure made to the Regulator in good faith under or for the purposes of new Parts 9A, 9B or 9C of the SSR Act – relating to complaints and investigations of disability services and regulated disability services – is not subject to any liability in respect of the disclosure. Insofar as a cause of action may be considered ‘property’ within the meaning of section 20 of the Charter, this provision may engage the right. However, if clause 19 could be considered to deprive a person of property, any such deprivation will be ‘in accordance with law’ and will therefore not limit the Charter right to property. In particular, section 283ZZCC is drafted in clear and precise terms. In addition, any deprivation of property is reasonably necessary to achieve the important objective of ensuring that the Regulator can conduct effective investigations, by enabling persons to provide information to the Regulator without exposure to the prospect of personal liability.

Abolition of office of Commissioner

Clause 23, which inserts new section 338B into the SSR Act which transfers all rights, property, assets, debts, liabilities and obligations of the Commissioner to the Regulator, is relevant to the property rights of a natural person who holds an interest in the property, liability etc. being transferred. However, I consider that the right to property is not limited by this amendment as the person is not being deprived of their property interest. Rather, the property, rights, assets, debts, liabilities and obligations are being transferred from one statutory office to another without altering the substantive content of that property right. Accordingly, the provisions to transfer the assets, debts, liabilities and obligations of the Commissioner to the Regulator do not limit this Charter right.

Right to protection against self-incrimination

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

Investigation powers

Division 1 of Part 2 of the Bill extends the application of the existing investigation powers of authorised officers under the SSR Act to require the production of documents or things and answer questions in relation to accountability investigations. This may engage the right in section 25(2)(k) of the Charter. Further, clause ‍34 of the Bill repeals the existing protection against self-incrimination in the Disability Act. However, the SSR Act contains a similar provision that excuses a person for refusing or failing to provide information that they are required to do under the SSR Act if doing so would tend to incriminate the person. Additionally, clause 18 of the Bill amends the SSR Act to ensure that the obligation to inform a person of the relevant privilege and self-incrimination provisions also applies to any enquiries made under the Regulator’s new accountability investigation powers. Therefore, the Bill preserves the existing protections against self-incrimination as far as possible.

The privilege against self-incrimination generally covers the compulsion of any information or documents which might incriminate a person. However, the application of the privilege to pre-existing documents is considerably weaker than that accorded to oral testimony or documents that are required to be brought into existence to comply with a request for information. I note that some jurisdictions have regarded an order to hand over existing documents, particularly in the context of regulatory monitoring where such documents are required to be kept to evidence regulatory compliance, as not engaging the privilege against self-incrimination. Importantly, the requirement to produce a document does not extend to having to explain or account for the information contained in that document. If such an explanation would tend to incriminate, the privilege would still be available.

To any extent that a requirement to produce documents is a limit on the right in s 25(2)(k), I consider it to be reasonably justified pursuant to s 7(2) of the Charter. Any limitation on the right that is occasioned by the authorised officer’s investigation and monitoring powers is directly related to its purpose. The Bill will amend the SSR Act such that the documents that an authorised person can require to be produced include those necessary for the purpose of an accountability investigation. Taking into account the protective purpose of the Bill, there is significant public interest in ensuring that authorised persons are able to access information and evidence that may be difficult or impossible to ascertain by alternative evidentiary means, and to use such evidence to bring enforcement action where appropriate.

There are no less restrictive means available to achieve the purpose of enabling authorised persons to have access to relevant documents, and access to such documents is necessary to ensure the safety of people accessing social services. To provide for a ‘use immunity’ that restricts the use of produced documents to particular proceedings would unreasonably obstruct the role of authorised persons and the aims of the scheme, as well as giving the holders of such documents an unfair forensic advantage in relation to criminal and civil penalty investigations. Any limitation on the right to protection against self-incrimination is therefore appropriately tailored and the least restrictive means to achieve the regulatory purpose.

The Hon. Ben Carroll MP

Deputy Premier

Minister for Education

Minister for Medical Research

Second reading

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (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:

There are more than 1.1 million Victorians that live with disability. An effective and efficient safeguarding framework is vital to ensure that these Victorians can access high-quality services, and can do so without fear of abuse, harm and neglect from providers.

This Bill reflects the Government’s ongoing commitment to protect people accessing disability services in Victoria. It also improves the effectiveness of the safeguarding framework for people accessing social services more broadly.

As part of improving the safeguarding framework for social services, from 1 July 2024 the Government will roll out a stronger regulatory framework for social services, including disability services, and a new Social Services Regulator will be in place that is independent from the Department of Families, Fairness and Housing.

The new social services regulatory framework focuses on service user safety, agency and dignity. The Regulator will have an expanded set of compliance and enforcement tools, enabling it to take decisive action if there is a breach of the new regulatory framework – for example if service user safety is compromised – to better protect Victorian social service users.

Currently, the landscape for the regulation of social services, particularly disability services, in Victoria is complex and uncoordinated. It involves several different regulators and complaints bodies. The number of entities involved in regulation and complaints for social services can be confusing for service users. The system is not always simple or accessible for disability service users.

The establishment of the Regulator will strengthen protections for service users across the sectors it covers. It also creates an opportunity to examine the other entities that also play important roles in safeguarding disability service users.

The regulatory landscape for disability services is continuing to evolve. In particular, many disability services that were previously overseen by the Disability Services Commissioner have shifted to the National Disability Insurance Scheme, meaning its scope is now very small, covering forensic disability services, services to Victorians ineligible for the NDIS and some Transport Accident Commission services.

In summary this Bill will:

• merge the functions of the Disability Services Commissioner into the Social Services Regulator, enabling these critical functions – resolving complaints about non-NDIS disability service providers – to continue.

• delay the Worker and Carer Exclusion Scheme, which regulates out of home care workers and carers, for up to two years, while maintaining existing protections for children and young people in out of home care

• make minor and clarifying amendments to the Residential Tenancies Act 1997 and Social Services Regulation Act 2021 so their provisions reflect recent legislative amendments made by the Disability and Social Services Regulation Amendment Act 2023.

These changes will not reduce any safeguards for people accessing disability or out-of-home care services. These changes are the first step in establishing a more comprehensive safeguarding framework that will better protect Victorian social service users.

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

Merging the functions of the Disability Services Commissioner with the Social Services Regulator

The Disability Services Commissioner has played a vital role in the safeguarding framework for disability services since its inception in 2007. The Commissioner receives and resolves complaints about disability service providers and promotes the rights of people with a disability to be free from abuse and neglect.

The Commissioner has received over 3000 complaints relating to disability services. Where the Commissioner cannot directly resolve a complaint, it supports services users by referring their complaint to other safeguarding entities.

However, as I have noted, the role of the Commissioner has changed as many services have moved outside its scope to the National Disability Insurance Scheme. The Office of the Disability Services Commissioner is now very small and is no longer viable as a standalone entity.

While the scope of the Office has reduced in size, its functions continue to be important for the services it covers. The Government is committed to these functions continuing.

The rights of people with disability remain a key priority for the Victorian Government. The Regulator will continue to ensure people with disability are protected from harm, abuse and neglect and receive safe and high-quality services. This means there will be no reduction in protections for disability service users.

Instead, the new arrangements will ensure that protections for people with a disability are delivered more effectively, simply and accessibly. Service users and providers that previously needed to interact with two separate entities will now interact with a single regulator. This will simplify the regulatory landscape for these services.

Having the complaint functions of the Commissioner in the same body as the Regulator will also make it easier to share regulatory intelligence to identify risks and inform the Regulator’s ability to investigate allegations of abuse or neglect.

This Bill also establishes an Associate Regulator role, which will be a Governor in Council appointment, and report to the Social Services Regulator. There is flexibility in how this role may be used. However, it is intended that this role will result in dedicated oversight of complaints about disability and other services and maintain a degree of independence of complaint handling from the Regulator’s other functions.

These changes are the first step in the Government’s longer-term vision for Victorians accessing social services. It is expected that by 2026, the Regulator will have a broad-based complaints function that will cover all social services within its remit. This will establish critical new safeguards for service users that do not currently have access to a dedicated complaints function. These reforms will be introduced in a second piece of legislation to be considered by the Parliament at a later time, along with reforms to merge the core functions of the Victorian Disability Worker Commission and the Disability Worker Registration Board, into the Regulator – creating a one stop shop for regulation and complaints for social service users.

Delaying the Worker and Carer Exclusion Scheme

The Social Services Regulation Act 2021 establishes a new Worker and Carer Exclusion Scheme for out-of-home care workers and carers. This scheme will prevent out of home care workers and carers found to present an unacceptable risk of harm to children from working in the out-of-home care sector. The scheme will replace the current Victorian Carer Register and Suitability Panel, which provide similar protections.

This Bill will delay the commencement of the Worker and Carer Exclusion Scheme for up to two years, to commence on or before 1 July 2026. This provides more time for the out-of-home care sector to implement the new scheme. It will enable out-of-home care service providers to focus their attention on transitioning to one new scheme, the social services regulation scheme. The proposed delay will also provide the Regulator with more time to focus its attention on supporting providers to transition to the new social services scheme.

Existing protections for children and young people will continue while the Worker and Carer Exclusion Scheme is delayed. Carers working for registered out-of-home care services must continue to be registered on the Victorian Carer Register, and the Suitability Panel will continue to determine if a worker should be disqualified from working in the sector. The Bill provides that from 1 July 2024, administration of the Victorian Carer Register will shift from the Secretary of the Department of Families, Fairness and Housing to the new Social Services Regulator.

Streamlined notice provisions for residents of specialist disability accommodation and other minor amendments.

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

The changes will streamline and enhance residential notice provisions and associated safeguards for residents of specialist disability accommodation under Part 12A of the Residential Tenancies Act 1997. Importantly, the changes will preserve the Public Advocate’s safeguarding role in respect of notices issued under Part 12A of that Act.

Finally, the Bill amends the definition of “supported residential service” in the Social Services Regulation Act ‍2021 and Supported Residential Service (Private Proprietors) Act 2010 to align with amendments to the Residential Tenancies Act 1997 made by the Disability and Social Services Regulation Amendment Act 2023.

Conclusion

The Government is committed to ensuring that the safeguarding framework for people accessing social services is effective, efficient and fit for purpose. For service users, it also needs to be clear, user-friendly, and responsive. The Bill reflects this important commitment by ensuring a strengthened, single regulator can investigate both disability service providers and other social service providers to address abuse and neglect and resolve complaints about disability service providers.

The Bill also ensures that current safeguards for disability service users and clients In the out-of-home care sector are maintained. It will make those safeguards more effective by connecting them to the new independent regulator.

These reforms are part of the Government’s greater vision to create a social services oversight system that responds to the feedback of service users and providers and is economically sustainable.

I commend the Bill to the house.

James NEWBURY (Brighton) (10:46): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 3 April.