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	EDUCATION AND TRAINING REFORM AMENDMENT (APPRENTICESHIPS, TRAINEESHIPS, SCHOOLS AND OTHER MATTERS) BILL 2026

	12 August 2026 Statement of charter compatibility Gabrielle Williams (ALP)

Gabrielle WILLIAMS (Dandenong – Minister for Education, Minister for Skills and Training, Minister for First Peoples, Minister for Women and Gender Equality) (11:15): Under the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility:

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 Education and Training Reform Amendment (Apprenticeships, Traineeships, Schools and Other Matters) Bill 2026 (the Bill).

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

Overview of the Bill

The Bill introduces reforms to regulation of apprenticeships and traineeships, the permission to teach scheme administered by the Victorian Institution of Teaching, and the school community safety order scheme, and other matters. The apprenticeship and traineeship reforms are dealt with in Chapter 2 of the Bill, and the reforms related to schools and other matters are contained in Chapter 3 of the Bill. This section provides an overview of the amendments in each Chapter of the Bill.

The Bill seeks to deliver the following objectives regarding apprenticeships and traineeships regulatory reform:

1. Economic outcomes: to strengthen the State’s economic base by providing a modern and skilled workforce that meets the current and future needs of industry, government and the community through successful completion of qualifications.

2. Safety and support: to support a proactive regulatory system that prevents as far as practicable the risk of harm to apprentices and trainees undertaking a workplace training arrangement.

3. Training quality: to support the continued development and provision of high-quality workplace training by employers of apprentices and trainees.

Implementing recommendations of the Apprenticeships Taskforce, which reported to government in early 2024, the purposes of the Bill in respect of apprenticeships and traineeships regulatory reforms, are to amend:

1. the Education and Training Reform Act 2006 (ETRA) to provide for a new regulatory scheme for apprenticeships and traineeships, including by:

a. transferring functions relating to apprentices from the Victorian Registration and Qualifications Authority (Authority) to the Workforce Inspectorate Victoria (WIV), providing for the collection, use and disclosure of information in relation to apprenticeships and traineeships by the WIV, and establishing the Apprenticeship and Traineeship Consultative Committee;

b. providing for a new licensing system that authorises entry into training contracts to train apprentices or trainees, and providing for the execution, approval, cancellation and suspension of training contracts; and

2. providing for registrations of group training organisations (GTO), the making of approved training scheme determinations, and the preparation of training plans; and

3. the Workforce Inspectorate Victoria Act 2020 (WIV Act) to provide for the appointment of the Apprenticeship and Traineeship Commissioner, and for the Commissioner’s functions and powers.

The Bill also seeks to deliver the following objectives for schools and other matters:

4. introduce a new statutory principle which enshrines the expectation and intention that all Victorian schools are safe and respectful places of learning and work;

5. improve and strengthen the permission to teach registration scheme administered by the Victorian Institute of Teaching (the Institute);

6. implement a number of recommendations of the statutory review of the school community safety order scheme (SCSO scheme) and make other amendments; and

7. make minor consequential amendments to the Commission for Children and Young People Act 2012 and the Children, Youth and Families Act 2005.

In relation to the SCSO scheme, the Bill will make amendments to:

8. the process for making and extending immediate school community safety orders (immediate orders) in Division 2 and ongoing school community safety orders (ongoing orders) in Division 3 of Part 2.1A of ETRA; and

9. the process for reviewing ongoing orders in Division 4 of Part 2.1A of ETRA; and

10. introduce powers to make and review digital content school community safety orders (digital content orders) in new Divisions 4A and 4B of Part 2.1A of ETRA, which will prohibit the use of communication platforms or channels to harm members of the school community (including making orders to a person to remove or amend content or material published, or information communicated, on communication platforms and channels outside of the school environment).

Human rights issues

The human rights protected by the Charter that are relevant to the Bill are listed below, together with an overview of the scope of each.

Apprenticeships and traineeships regulatory reforms

Right to equality before the law and protection from discrimination (section 8 of the Charter)

Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. 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.

Freedom from forced work (section 11)

Section 11 of the Charter provides that a person must not be made to perform forced work or compulsory labour. ‘Forced or compulsory labour’ relevantly does not include work or service that forms part of normal civil obligations. While the Charter does not define ‘normal civil obligations’, comparative case law has considered that, to qualify as a normal civil obligation, the work or service required must be provided for by law, must be imposed for a legitimate purpose, and must not be exceptional or have any punitive purpose or effect.

Right to privacy and reputation (section 13)

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

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

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds. However, section 15(3) provides that special duties and responsibilities attach to this right, which may be subject to lawful restrictions reasonably necessary to respect the rights and reputations of others, or for the protection of national security, public order, public health or public morality.

Property rights (section 20)

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

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

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

Presumption of innocence (section 25(1))

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty according to law. The right is relevant where a statutory provision allows for the imposition of criminal liability without the need for the prosecution to prove fault. The right is also relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

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

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

Right not to be tried or punished more than once (section 26)

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.

Penalties and sanctions imposed by professional disciplinary bodies generally do not usually constitute a form of ‘punishment’ for the purposes of this right as they are not considered to be punitive.

Rights promoted by Bill: right to life (section 9) and protection of children (section 17(2))

The Bill also seeks to promote the right to life in section 9 of the Charter of apprentices and trainees, by mitigating risks to, and promoting, their safety. Noting also the particular vulnerability of young people, and the power imbalances between employers, and apprentices and trainees (who can be under 18 years old), the Bill also promotes the right to protection of children in section 17(2) of the Charter. Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by the child by reason of being a child.

Collection, use and disclosure of information

The sharing of information between government regulators who deal with the apprenticeships and traineeships system is necessary to ensure the safety of apprentices and trainees. Sharing of relevant information is key to the operation of an effective regulatory system.

The Victorian Registration and Qualifications Authority

Clause 7 of the Bill inserts new sections 4.9.3A and 4.9.3B, which permit the Authority to, respectively, collect information from any person or body for the purposes of performing its functions or exercising its powers under the Bill or any other Act, and use any information it holds for the purposes of performing its functions or exercising its powers under the Bill or any other Act. Clause 8 amends section 4.9.4 of the ETRA to specify the WIV and any other prescribed person or body (or class of person or body) involved in the regulation of apprenticeships or traineeships as entities to which the Authority may disclose information that relates to the performance of their functions.

To the extent that the information collected, used or disclosed pursuant to new sections 4.9.3A and 4.9.3B, and amended section 4.9.4, includes personal information, clauses 7 and 8 would engage the right to privacy in section 13(a) of the Charter.

The Workforce Inspectorate Victoria and the Apprenticeship and Traineeship Commissioner

The functions of the WIV include collecting, analysing and publishing information in relation to apprenticeships and traineeships to assist in performing any of its functions under the Bill (section 4A.2.1(1)(f)). Pursuant to section 31G(1)(a), inserted by clause 68, the Apprenticeship and Traineeship Commissioner has this same function provided for in section 4A.2.1(1)(f).

Part 4A.9 provides for the collection, use and disclosure of information by the WIV. As information includes health information and personal information (section 4A.9.1), Part 4A.9 engages the right to privacy in section ‍13(a).

The powers provided for in new sections 4A.9.2, 4A.9.3 and 4A.9.4 permit the WIV to, respectively, collect information from a specified person or body for the purposes of exercising or performing a Chapter 4A function, duty or power, use any information it holds for the purposes of exercising or performing a Chapter 4A function, duty or power, and disclose that information to specified persons or bodies if the WIV reasonably believes it is necessary for the purposes of the person or body exercising its powers or performing its functions under the Bill or any other enactment.

Transitional and consequential amendments

Section 6.3.24, inserted by clause 51, provides that, as soon as practicable after commencement day, the Authority must provide to the WIV any information held by the Authority that relates to the Authority’s apprentice functions.

The Workforce Inspectorate Victoria Commissioner and the Apprenticeship and Traineeship Commissioner may also disclose information acquired in carrying out a function under, respectively, the WIV Act and Chapter 4A of the ETRA (introduced by the Bill) if satisfied that it is in the public interest to do so. Clause 72 of the Bill extends the prohibition on disclosing information obtained by a person in performing their functions or exercising their powers under the WIV Act to include those functions or powers under Chapter 4A, subject to disclosures authorised under section 77 of the WIV Act. Further clause 72 of the Bill amends section 77 of the WIV Act to provide that both the Workforce Inspectorate Victoria Commissioner and the Apprenticeship and Traineeship Commissioner may disclose information acquired in carrying out their statutory functions if they are satisfied it is in the public interest to do so.

To facilitate the sharing of information between government regulators who deal with the apprenticeship and traineeship system:

• clause 89 provides for Energy Safe Victoria to collect from, and disclose to, specified bodies (including the WIV) information, and to use that information; and

• clauses 94 and 95 provides for the Labour Hire Licensing Authority to disclose to specified bodies (including the WIV) information about an apprentice or a trainee.

The right to privacy (section 13)

Each of the provisions discussed above interferes with the right to privacy in section 13(a) by enabling the sharing of information between regulators, which may include sensitive personal information, including about apprentices and trainees. However, any interference is lawful, as it is authorised under legislation. Further, interferences with privacy are not arbitrary, as collection and disclosure of information is confined to specified bodies. Finally, each provision is appropriately tailored to achieve the legitimate purpose of ensuring the regulators can effectively perform their functions and exercise their powers by accessing, using and sharing information as required.

Further, where regulators are subject to any secrecy or confidentiality requirements under relevant laws, these laws would continue to apply, ensuring that information is managed appropriately once collected, used or disclosed. Finally, those bodies that are public authorities under the Charter will be obliged to act compatibly with the right to privacy when performing their functions or exercising their powers. I therefore consider that the provisions discussed above are compatible with the right to privacy under the Charter.

Scheme fundamentals

Clause 9 of the Bill establishes the fundamentals of the new apprenticeships and traineeships scheme, including: establishing the objectives of the scheme (Part 4A.1), which include ensuring the health and safety of apprentices and trainees, and providing high-quality training to build a modern, skilled workforce for Victoria; outlining the functions of the WIV under the scheme (Part 4A.2); providing for the establishment of the Apprenticeship and Traineeship Consultative Committee (Part 4A.3); providing for the determination of approved training schemes (Part 4A.4); providing for an employer licensing regime (Part 4A.5); providing a process for the approval of training contracts and related matters (including with respect to the form and content of training contracts and their execution, the obligations of parties, and cancellation, suspension and variation of contracts (Part 4A.6); providing a process for development and oversight of training plans, as well as obligations regarding assessment of skills of apprentices and trainees under a training plan (Part 4A.7); the establishment and operation of a registration scheme for GTOs (Part 4A.8); information sharing arrangements for the collection, use and disclosure of information (Part 4A.9, discussed above); other miscellaneous provisions (Part 4A.10); and internal and VCAT review (Part 4A.11).

Right to equality (section 8)

A determination under new section 4A.4.1(1) in respect of an approved training scheme may include ‘requirements as to age, education, knowledge, skills and experience of an apprentice or a trainee’ (under new section 4A.4.1(2)(i)). To the extent that the regime sets any requirements in respect of a person’s ‘age’ or ‘profession, trade or occupation’, the right to equality under section 8(2) of the Charter may be engaged, as these are protected attributes under the Equal Opportunity Act 2010 (EOA). Section 8(2) of the Charter provides that every person has the right to enjoy their human rights without discrimination. The Charter imports the definition of ‘discrimination’ in the EOA which provides that direct discrimination occurs if a person treats, or proposes to treat, a person with a protected attribute unfavourably because of that attribute, or occurs indirectly where a person imposes, or proposes to impose, a requirement, condition or practice that has, or is likely to have, the effect of unreasonably disadvantaging persons with a protected attribute (sections ‍7, 8 EOA).

I am of the view that while these provisions may constitute direct discrimination, any resulting limit on the right is reasonably justified, given the discrimination will be occurring in circumstances recognised as lawful under the exceptions in the EOA.

In setting any requirements outlined in new section 4A.4.1(2)(i), the WIV may reasonably discriminate on the basis of a person’s education, knowledge, skills and experience when considering whether a person is a suitable candidate for a traineeship or apprenticeship, because the requirements set by the WIV will be based on the genuine occupational requirements for the role, and a person’s experience, education or skills will be relevant to their employment under the relevant training contract (which are very similar circumstances to the genuine occupational requirements exception provided for in section 26(5) EOA in relation to discrimination in employment). I note further that the WIV will be a public authority under the Charter and will therefore be obliged to give proper consideration to the right to equality when setting the terms of a determination of approved training schemes, including whether any discrimination on the basis of education, knowledge, skills or experience is reasonable and justified in the circumstances.

The WIV may also reasonably discriminate on the basis of age when setting these requirements where it is necessary to prevent a person who does not yet have legal capacity from entering into a contract (i.e. a person under 18 years of age) (per the general exception in section 85(2) EOA relating to legal incapacity). A person’s age and ability to understand the obligations of their training contract is relevant to their ability to safely undertake the requirements of the contract.

I am ultimately of the view that the power to make a determination under new sections 4A.4.1(1) and 4A.4.1(2)(i) in respect of the requirements as to age, education, knowledge, skills and experience of an apprentice or trainee is a reasonably justified limitation on this right having regard to the matters outlined above, and so is considered lawful under the Charter.

Right to privacy (section 13(a)) and right to freedom of expression (section 15(2))

New sections 4A.5.2, 4A.5.3, 4A.5.6, 4A.5.12, 4A.5.13, 4A.5.23, 4A.8.1 and 4A.8.2 will engage the right to privacy in section 13(a) to the extent that they require personal information to be disclosed to the WIV, and the right to freedom of expression in section 15(2) to the extent that this extends to a right not to impart information (including where compelled). However, I am of the view that neither right is limited.

A person who has sought to take part in the regime (i.e. as a licence holder, including a GTO) will have done so voluntarily and on the understanding that they are engaging in a regulated industry which has certain requirements and obligations of disclosure. Such persons are also voluntarily submitting to the WIV’s powers to request and take into account relevant information received through information gathering processes for the purposes of assessing ongoing suitability for, and compliance with, the regime.

Accordingly, any interference with the right to privacy or freedom of expression is lawful and (with respect to the right to privacy) not arbitrary in that any powers to request or require disclosure of information are set out in clearly articulated legislative provisions, are voluntarily assumed by persons engaging with the regulatory regime, and are confined to information which is reasonably necessary for the WIV to inform its decision-making processes and to have sufficient transparency to ensure the effective administration of the regime.

Right to privacy and reputation (section 13)

Section 4A.9.5 provides that the WIV must establish and maintain a Register of Employer Licences that contains certain particulars, including a licence holder’s name and, in respect of a person whose employer licence has been cancelled, that person’s name and date on which their employer licence was cancelled. The WIV must publish the Register of Employer Licences on its Internet site (section 4A.9.6).

I do not consider that these requirements would arbitrarily interfere with the right to privacy in section 13(a) of the Charter, or limit the right not to have a person’s reputation unlawfully attacked in section 13(b). This is because, other than a person’s name, the Register would not include personal information of a private nature and would serve the legitimate and important purpose of making it known to the public that an employer’s licence is, or has been, cancelled. In relation to a person’s name, the requirement to include this in the Register of Employer Licences, and the requirement to publish this Register, would be lawful and would serve the legitimate and important purpose of ensuring visibility of those employers who do not comply with regulatory standards so that the health and safety of apprentices and trainees can be protected.

Right to fair hearing (section 24(1))

The right to a fair hearing in section 24(1) of the Charter may be engaged with respect to the administrative powers exercised by the WIV that hold the power to determine private rights and interests. These include decisions to grant an employer licence subject to a condition or refuse to grant an employer licence, to renew an employer licence subject to a condition or refuse to renew an employer licence, to impose a condition on an employer licence, or to refuse to vary, or revoke a condition imposed on, an employer licence (under new sections 4A.5.5, 4A.5.8, 4A.5.9 and 4A.5.14 respectively), to suspend, immediately suspend, or cancel an employer licence (under new sections 4A.5.15, 4A.5.16 and 4A.5.19 respectively), to refuse to reduce a disqualification period, or refuse to accept the surrender of an employer licence (under new sections 4A.5.21 and 4A.5.23 respectively), to refuse to approve a training contract, or refuse to approve a variation of an approved training contract, or suspend or cancel an approved training contract (under new sections 4A.6.6, 4A.6.10 and 4A.6.12), to refuse to issue a GTO registration, or suspend, cancel or immediately cancel a GTO registration (under new sections 4A.8.3, 4A.8.4, 4A.8.7 and 4A.8.8). Such decisions might affect the employment rights or interests of a person.

If a broad reading of section 24(1) were adopted and it was understood that the fair hearing right was relevant to the reviewable decisions outlined above, this right would not be limited. The right to a fair hearing is concerned with the procedural fairness of a decision. The entire decision-making process, including the availability of review, must be examined to determine whether the right in section 24(1) is limited. For example, in the context of a decision to cancel or suspend an employer licence, the WIV is required to provide the licence holder written notice of the proposed suspension or cancellation, which sets out the grounds for the proposed suspension or cancellation and that the licence holder may make submissions within 14 days, which the WIV must consider before making their decision (under new sections 4A.5.15(3) and (4), and 4A.5.19(3) and (4)). The WIV must also provide the reason for the decision in relation to suspension and cancellation, and advise the licence holder of the availability of internal and VCAT review (under new sections 4A.5.17 and 4A.5.19(5)).

All of the decisions outlined above are reviewable (see new section 4A.11.1) under new sections 4A.11.2 (internal review) and 4A.11.3 (review by VCAT of an internal review decision). The WIV acts with relative independence, as it is established as an independent body corporate under section 19 of the WIV Act although it may be subject to direction by the Minister (section 24 of the WIV Act). Section 22 of the WIV Act provides that, when executing its functions, including when acting in its review capacity, the WIV must act in a fair, impartial and independent manner, and act in a manner that is transparent, accountable and consistent. In conducting an internal review, the WIV must have regard not only to material that informed its initial decision and the reasons for its initial decision, but also to any relevant new material that was not available at the time of the initial decision and the reasons for the application for review. The WIV has only 28 days to make an internal review decision, otherwise their original decision is deemed upheld (new section 4A.11.2(8) and (9)), and a person can then appeal to VCAT. For these reasons, I am of the view that the right to a fair hearing is not limited in respect of those decisions outlined above which are reviewable under new sections 4A.11.2 and 4A.11.3.

Right to be presumed innocent (section 25(1)) and right not to be tried or punished more than once (section ‍26)

The WIV has the power under new sections 4A.5.2(3)(f), (g), (h) and (i), and (4)(c) and (d), and 4A.5.4(1) and (2), and 4A.8.4(1), to consider past criminal convictions or contraventions of this Act, the regulations or other relevant Acts when exercising its powers in respect of the licensing regime for employers and GTOs. Under new sections 4A.5.2(3)(g)(v) and (4)(d)(v), the WIV must also consider whether the applicant for an employer licence, or any director of the applicant, is being or has been investigated in relation to a contravention of a specified law.

The right not to be punished more than once for the same offence under section 26 of the Charter may be relevant in respect of offences for which a person has already been finally convicted or acquitted in accordance with law, and on which the WIV may rely as a basis to refuse an application for a licence or suspend a person’s GTO registration. This right may also be relevant to new sections 4A.5.2(3)(g)(v) and (4)(d)(v), which requires the WIV to also consider alleged offending.

Detrimental treatment, penalties and sanctions imposed by professional disciplinary bodies generally do not constitute a form of ‘punishment’ which this right is concerned with, as they are not generally considered to be punitive. The mere fact that a law operates to impose a detriment on a person does not make it punitive. Rather, the question of whether the imposition of a detriment is properly characterised as punitive will depend upon a range of factors including the nature of the detriment, the criteria by reference to which that detriment is imposed, and the purpose(s) for which the detriment is imposed.

The nature of the detriment in this instance – preventing a person from qualifying or continuing as a licenced or registered member of this regime – is not typically associated with criminal punishment. The WIV’s powers to consider past criminal convictions, and also alleged offending, is intended to serve a protective rather than punitive purpose, especially in the context of employers working closely with young people. These clauses ensure the integrity and good governance of the scheme, promote the health and safety of trainees and apprentices, are limited to matters directly connected to integrity, competency and good governance of the scheme, and do not extend to circumstances that could be considered arbitrary or punitive.

As such, I am of the view that section 26 of the Charter is not limited by new sections 4A.5.2(3)(f)–(i), and (4)(c) and (d), and 4A.5.4(1) and (2), and 4A.8.4(1).

Further, existing authority suggests the right to be presumed innocent until proved guilty according to law in section 25(1) of the Charter appears to primarily apply in relation to criminal proceedings only. In the event that section 25(1) was found to have application beyond criminal proceedings to the exercise of powers in respect of a licensing regime, section 25(1) may be limited by new sections 4A.5.2(3)(g)(v) and (4)(d)(v). However, I consider that any such limitation would be reasonably justified. As noted above, these clauses serve the legitimate and important purpose of ensuring the integrity and good governance of the scheme, and promoting the health and safety of trainees and apprentices. The WIV as a public authority under the Charter would need to give proper consideration to the right when making a decision on the basis of unproven or pending charges or allegations. Accordingly, I consider that any potential limitation would be in proportion to its aim and that new sections 4A.5.2(3)(g)(v) and (4)(d)(v) would be compatible with section 25(1) of the Charter, if it were found to have application beyond criminal proceedings.

Powers of entry and seizure by the WIV in relation to Chapter 4A employees

Clause 19 of the Bill inserts Division 3A into Part 5.8 of the ETRA to provide authorised officers appointed by the WIV with certain entry powers, and powers to seize items and to seek and execute a search warrant in relation to Chapter 4A employees.

The Bill introduces powers for authorised officers to enter premises during business hours and with the consent of the occupier of the premises, if they reasonably believe an apprentice or trainee is trained, or purportedly trained, under an approved training contract by a Chapter 4A employer at the premises (new section 5.8.3ZB(1)). If these conditions are met, the officer may do a number of things at the premises, subject to certain requirements, including searching the premises, making inquiries of any person, seize any thing and require an occupier, or their agent or employee, to provide reasonable assistance (new section 5.8.3ZB(2)–(4)).

The Bill also permits the entry into and search of a premises if authorised by a search warrant applied for by an authorised officer and issued by a magistrate where they are satisfied by evidence that there are reasonable grounds for believing that there is, or may be, a particular thing (including a document or device) that may afford evidence of the contravention, or potential contravention, of Chapter 4A, or the failure to comply with a notice to produce issued under section 5.8.10A or notice to comply issued under section 5.8.18A (new section 5.8.3ZC). The search warrant may authorise a named authorised officer to enter a particular premises, and search for, seize, secure, require production of, or examine and inspect the thing described in the warrant that the officer believes on reasonable grounds may afford evidence of the contravention, or potential contravention, of Chapter 4A, or failure to comply with a notice under section 5.8.10A or 5.8.18A (new section 5.8.ZC(3)). The exercise of these powers authorised under the warrant are subject to a number of requirements, including to announce that the authorised officer named is authorised by the warrant to enter the premises and to give details of the warrant to the occupier (new sections 5.8.3ZD and 5.8.3ZE).

The seizure powers outlined above are subject to a number of requirements and protections: a receipt must be given for any thing seized (new section 5.8.3ZG), copies of seized documents must be provided for any documents retained by the officer (new section 5.8.3ZH), the officer must take reasonable steps to return the thing to the person from whom it was seized if the reason for its seizure no longer exists (new section 5.8.3ZI(1)), or after 3 months unless a proceeding for which the thing was retained has commenced and is ongoing, or the Magistrates’ Court makes an order under new section 5.8.3ZJ extending the period during which the thing may be retained (new section 5.8.3ZI(2)).

Right to privacy (section 13(a))

These powers of entry and seizure engage a person’s right in section 13(a) of the Charter not to have their privacy unlawfully or arbitrarily interfered with by permitting authorised officers to enter and search premises, to take records and make inquiries of persons. I consider that these powers are compatible with section 13(a) because these provisions are precise and appropriately circumscribed, and are proportionate to the legitimate aim of monitoring compliance with the regulatory scheme, and investigating possible breaches of the Bill, ultimately protecting the safety of apprentices and trainees undertaking workplace training. In particular, I note that as the potential gravity of interferences with the right increases, that is, where entry and search of a premises may be authorised under warrant in the absence of consent from the occupier, there is greater oversight by a judicial body (being the Magistrates’ Court) and the officer is required to prove, with evidence, the necessity for such authorisation. For these reasons, I do not consider the right to privacy will be limited by these provisions.

Right to property (section 20)

The seizure powers outlined above also engage the right to property in section 20 of the Charter (which would include a thing owned by a person). However, I consider that deprivation of a person’s property pursuant to these seizure powers would be in accordance with law because the legal authorisation for the deprivation is publicly accessible, and governed by a clear and accessible process. Authorised officers may only seize a thing for the clear purposes provided for in the Bill, which support the legitimate protective objectives of the Bill. The safeguards outlined above also allow for the return of the item as soon as practicable, only allowing for the retention of an item for particular purposes and with the oversight of a magistrate where the retention is for an extended period of time. As such, I consider that the right to property is not limited by these provisions.

Reverse onus provision

New section 5.8.3ZK, as inserted by clause 19 of the Bill, provides that a person must not refuse or fail to comply with a requirement of an authorised officer under new section 5.8.3ZB(2)(h) to give reasonable assistance to the authorised officer if the authorised officer reasonably believes there is a serious risk to the health, safety or wellbeing of an apprentice or trainee without reasonable excuse. Under new section 5.8.3ZB(3)(a), before requiring a person to give reasonable assistance under new section 5.8.3ZB(2)(h), the authorised officer must warn the person that refusal or failure to comply with the requirement, without reasonable excuse, is an offence.

Presumption of innocence (section 25(1))

This offence is relevant to the right to be presumed innocent in section 25(1) of the Charter as it contains an excuse (also known as an exception) which places an evidential burden on the accused – that is, the accused is required to present or point to evidence that suggests a reasonable possibility of the existence of facts that would establish the exception or excuse. The Supreme Court has held that evidential onus provisions on an accused to establish an exception do not transfer the legal burden of proof and do not limit the right to the presumption of innocence. Once the accused has pointed to evidence of a reasonable excuse, the burden shifts back to the prosecution, who must prove the essential elements of the offence to a legal standard. Further, the existence of a reasonable excuse is something which is peculiarly within an accused’s knowledge and would be unduly onerous for a prosecution to disprove at first instance.

Accordingly, I am of the view that this offence provision is compatible with the right in section 25(1) of the Charter.

Notices to produce and to comply issued by the WIV and related injunctions

Notice to produce (sections 13(a) and 15(2) of the Charter)

Under section 5.8.10A, which clause 25 inserts into the ETRA, the WIV may issue a written notice requiring a regulated entity to produce any document or information for the purposes of monitoring the regulated entity’s compliance with Chapter 4A. A notice to produce is required to be in a prescribed form and include particular information, including specifying what must be produced, the date by which the document or information must be produced, being not less than 14 days after the issue of the notice, and the enforcement action that may be taken for failing to comply with the notice (new section 5.8.10A(2)). Failure to comply with a notice to produce without reasonable excuse can constitute both a criminal offence and give rise to a civil penalty (clause 30 inserting section 5.8.15A into the ETRA).

Clause 25, to the extent a notice is issued to a natural person, is relevant the right to freedom of expression in section 15(2) of the Charter, by compelling a person to impart information. Further, to the extent that personal information of a private nature (rather than information relating to a corporation) is required to be given, the right to privacy in section 13(a) of the Charter may also be engaged. However, I consider that these rights would not be limited, as information gathering notices serve the important purpose of monitoring and investigating compliance with new Chapter 4A of the ETRA, investigating potential offences, and protecting apprentices and trainees from detriment or harm resulting from non-compliance with the regulatory scheme. The scope of the provision extends only to documents or information relevant to monitoring compliance with Chapter 4A. It is necessary for the WIV to be able to seek such information to ensure the effective administration of the regulatory scheme, and to use it to bring enforcement action where appropriate. Further, the requirement to provide documents or information in this context is consistent with the reasonable expectations of persons who are engaging within a regulated scheme and assuming the responsibilities and duties that apply to a person’s behaviour towards and engagement with apprentices and trainees.

Notice to comply (sections 11, 13(a), and 25(1) of the Charter)

Under new section 5.8.18A, which clause 33 inserts into the ETRA, the WIV may give a licence holder a notice to comply if the WIV believes on reasonable grounds that the licence holder is not complying with the following sections introduced by the Bill: sections 4A.5.10(1), 4A.5.12(1), 4A.5.13(1), 4A.8.12(1), 4A.10.1(1), 4A.10.2(2), 4A.10.3(1), 4A.10.5(1), 4A.10.5(2), 5.8.3ZK(1) or 5.8.3ZL(1) or (2). Failure to comply with a notice to comply without a reasonable excuse can constitute both a criminal offence and give rise to a civil penalty (clause 38 inserting new section 5.8.22A into the ETRA).

Notices to comply may engage a bundle of rights, including privacy, to the extent that the notice restricts freedom to engage in certain conduct, and the protection against forced work in section 11 of the Charter, through the power to compel a person to take action (e.g. to comply with any condition imposed on their employer licence under new section 4A.5.10(1)).

However, I am of the view that any interference with rights will be compatible with the Charter. The notices have a threshold precondition, requiring the WIV to believe on reasonable grounds that the licence holder is not complying with the obligations listed above. These obligations serve the important purpose of protecting the welfare of apprentices and trainees, including by requiring employers of apprentices to be participating in the regulatory scheme in accordance with the law, including by complying with conditions on an employer licence, complying with prescribed standards and notifying the WIV of relevant matters. Notices to comply also prohibit behaviour that threatens the safety of apprentices and trainees (e.g. prohibiting advertising as a GTO registration holder without GTO registration under new section 4A.8.12(1) and threatening detrimental action against an apprentice or trainee under new section 4A.10.5(1)). Any action required to be undertaken pursuant to a notice would constitute work or service that forms part of normal civil obligations, so as not to limit section 11 of the Charter.

Further, as the WIV may give a licence holder a notice to comply in relation to criminal offences, new section 5.8.18A also engages the right to be presumed innocent under section 25(1) of the Charter. I note that nothing in the Bill limits a person’s right to seek judicial review of a notice to comply. To the extent that a person’s right to be presumed innocent in section 25(1) of the Charter is limited by these sections inserted by the Bill, I consider that this would be justified by the importance of the compliance notice scheme. It is a targeted mechanism for compelling a person to take necessary action, or for prohibiting harmful conduct, to prevent apprentices or trainees experiencing harm. Further, it can only be issued in relation to a licence holder, who has voluntarily assumed compliance responsibilities. A failure to comply is subject also to a reasonable excuse defence.

Accordingly, I am satisfied that the framework is an appropriate balance and compatible with Charter rights.

Injunctions (section 24(1) of the Charter)

Sections 5.8.14A and 5.8.21A, inserted into the ETRA by clauses 28 and 36 respectively, empower the Magistrates’ Court, on application by the WIV, to grant an injunction in the terms it considers appropriate if satisfied a regulated entity has failed to comply with a notice to produce (section 5.8.14A) or if satisfied a licence holder has failed to comply with a notice to comply (section 5.8.21A). Sections 5.8.14B and 5.8.21B, inserted into the ETRA by clauses 28 and 36 respectively, also empower the Court, on application by the WIV, to grant an interim injunction pending the determination of an application for an injunction under new sections 5.8.14A or 5.8.21A. An application for an injunction under these provisions may be made on an ex parte basis (new sections 5.8.14A(3), 5.8.14B(2), 5.8.21A(3) and 5.8.21B(2)).

The right to a fair hearing under section 24(1) of the Charter is engaged by the provisions in the Bill enabling ex parte applications to be brought for injunctions. In these circumstances, parties affected by injunctions may not have the opportunity to be heard.

In relation to new sections 5.8.14B(2) and 5.8.21B(2), the aim of these provisions is to enable interim injunctions to be quickly put in place in circumstances where it is not possible or appropriate to notify the other party (for example, in circumstances of great urgency). However, the making of an injunction on an ex parte basis remains at the discretion of the Magistrates’ Court, which will need to be satisfied that it is appropriate to make the injunction in all of the circumstances of an application, including having regard to the obligation to afford procedural fairness and natural justice to all parties to a proceeding. Further, affected parties will have the opportunity to be heard prior to the making of a final injunction. I therefore consider that any limitation of the right to a fair hearing is reasonably justified in the circumstances.

Similarly, in relation to an application under new sections 5.8.14A(3) and 5.8.21A(3), the right to a fair hearing is protected by the procedures and judicial processes of the Court, which may bound both by obligations under s 6(2)(b) of the Charter and common law obligations such as the requirement to afford parties natural justice when deciding an injunction application. I consider that these protections are sufficient to ensure that any limitation of this right, which may be occasioned by the Court deciding an application on an ex parte basis, will only occur in exceptional or urgent situations and where justified in all the circumstances.

Strict liability offences

The Bill includes a number of criminal offences that do not require proof of fault, for example, being that the relevant party acted ‘intentionally or recklessly’. These strict liability offences inserted into the ETRA include:

• New section 4A.5.1(1) provides that a person must not enter into, or purport to enter into, a training contract to train an apprentice or trainee unless the person holds an employer licence that is in force.

• New section 4A.5.22 provides that a person in respect of whom an employer licence has been cancelled must not apply for an employer licence while a disqualification period that applies to them is in effect.

• New section 4A.6.1(1) provides that an employer must not train an apprentice or trainee unless the employer holds an employer licence that is in force and trains the apprentice or trainee under and in accordance with an approved training contract that is in force.

• New section 4A.6.4(1) provides that an employer must ensure that a training contract is executed in accordance with section 4A.6.4.

• New section 4A.6.4(4) provides that an employer who is a party to the training contract must ensure that a copy of the executed training contract is given to each party to the training contract.

• New section 4A.7.6(2) provides that a registered education and training organisation that is given a notice under section 4A.7.6(1) to provide a copy of the training plan to the WIV must not contravene the notice.

• New section 4A.10.3(1) provides that a licence holder must notify the WIV in writing within 48 hours after becoming aware of an incident or the death of an apprentice or trainee who is trained by the licence holder that occurs while the apprentice or trainee is at work or attending an approved training scheme course.

• New section 4A.10.4 provides that a registered education and training organisation that provides an approved training scheme course must notify the WIV in writing within the prescribed period after becoming aware of a prescribed circumstance relating to an apprentice of trainee.

• New section 5.8.2AA, inserted by clause 15, provides that an authorised officer appointed under section 5.8.1(1) must return the authorised officer’s identity card to the WIV as soon as practicable after the appointment is revoked.

• New section 5.8.3ZK(1) provides that a person must not refuse or fail to comply with a requirement of an authorised officer under section 5.8.3ZB(2)(h) without reasonable excuse.

• New section 5.8.15A(1) provides that a regulated entity that is given a notice to produce issued under section 5.8.10A must not fail to comply with that notice without reasonable excuse.

• New section 5.8.22A(1) provides that a licence holder who is given a notice to comply under section 5.8.18A must not fail to comply with that notice without reasonable excuse.

By imposing a strict liability offence which does not require proof of fault, these new sections may limit the right to be presumed innocent under section 25(1) of the Charter. This being so, strict liability provisions will generally be compatible with the presumption of innocence where they are reasonable, necessary and proportionate, and in pursuit of a legitimate objective. These provisions operate as a deterrent against breaches of regulatory requirements, which are designed to both protect the safety of apprentices and trainees, and to support the continued development and provision of high-quality workplace training. These provisions also provide incentives for licence holders and education and training organisations to provide certain information that will assist the WIV to monitor compliance with the regulatory regime set out in this Bill, facilitating the taking of appropriate action by the WIV as required. I consider that the penalties provided for by these provisions are reasonable and in proportion to the identified need for deterrence.

For example, offences which deal with more administrative or minor matters, such as new section 4A.7.6, requiring the provision of a copy of a training plan to the WIV, attract a lower penalty in proportion to the consequences of failure to comply and the need for deterrence. By contrast, certain strict liability offences provide for a maximum of 120 penalty units where a more significant deterrent is needed. For example:

• training an apprentice or trainee without employer licence and approved training contract (new section 4A.6.1(1));

• failing to comply with a notice to produce (new section 5.8.15A(1)); and

• failing to comply with a notice to comply (new section 5.8.22A(1)).

The higher penalty of 120 penalty units is required to deter the core behaviours targeted by these offences. They also align with similar offences and penalty levels in other states and under other Victorian Acts. The addition of a fault element would undermine the WIV’s ability to prosecute these serious offences because it would be too high a threshold for effective enforcement.

Further, these strict liability provisions are reasonable in that they do not exclude the common law defence of honest and reasonable mistake of fact. Finally, the penalties are strictly financial with no possible imprisonment.

For these reasons, I consider that any limitation of section 25(1) by these provisions is reasonable and justifiable within the meaning of s 7(2) of the Charter.

Civil penalties

Clause 41 of the Bill inserts in Part 5.8 of the ETRA (concerning enforcement) new Division 7A (concerning civil penalties in relation to Chapter 4A matters) and Division 7B (concerning infringements in relation to Chapter 4A matters). The Bill responds to the risk of harm to apprentices and trainees in a proportionate manner by applying civil penalties in respect of more serious conduct by employers than that enforceable by infringement notice.

Under new section 5.8.23J(1) of Division 7B, an authorised officer may serve an infringement notice on any person or body that the officer reasonably believes has committed a prescribed offence (being an offence against Division 3A or Chapter 4A or section 5.8.15A or 5.8.22A).

Under Division 7A, a person must pay a civil penalty (new section 5.8.23C) if:

• on an application by the WIV, the Magistrates’ Court is satisfied on the balance of probabilities that the person has contravened a civil penalty provision (defined in new section 5.8.23A as a provision listed in Schedule 4, as substituted by clause 52) and makes a contravention order (new section 5.8.23B); and

• the Court makes a civil penalty order, requiring the person to pay a civil penalty of an amount not exceeding those provided for in Schedule 4 (new section 5.8.23C(1)).

The civil penalty provisions listed in Schedule 4 include offences in connection with licensing of employers (Part 4A.5) and training contracts (Part 4A.6).

Right to fair hearing and to have a criminal charge decided by a court (section 24(1) of the Charter)

The right to have a criminal charge decided by a competent court, which is a component of the right to a fair hearing in section 24(1) of the Charter, may include an implied protection against punishment being imposed outside of a court process and following a finding of guilt.

Accordingly, it is necessary to discuss the characteristics of the civil penalties which, in my view, do not constitute a criminal penalty for the following reasons:

• Civil penalties are imposed primarily for the purpose of deterrence and promoting compliance with the framework introduced by the Bill. They are intended to deter employers from committing the offences specified in Schedule 4 and to encourage behavioural change in employers. Civil penalties are one tool in the new compliance and enforcement framework, used because they are a faster, more flexible enforcement tool to deter unlawful behaviour.

• The penalty amounts are aligned with the seriousness of the offences, supporting the Bill’s purpose to respond to risk in a proportionate way, and aligned with similar penalties and those in the ETRA. I consider that the amounts, being no more than 120 penalty units for a contravention by a natural person, are reasonably necessary to deter contraventions of the Bill’s provisions.

• To the extent that the civil penalties in the Bill are considered to serve a punitive purpose (e.g. to punish offending against the regulatory framework), this does not make the penalties criminal, or akin to criminal punishment or a criminal charge. A civil penalty may be recovered by the WIV in a court of competent jurisdiction as a debt due to the State (new section 5.8.23I). Accordingly, any necessary enforcement of this civil debt would be governed by the civil debt recovery system, not the criminal law (e.g. a person would not be imprisoned for a failure to discharge the debt).

For the reasons listed above, I do not consider that the criminal process rights under the Charter are engaged by clause 41 of the Bill. Similarly, as the civil penalties provided for by clause 41 would not be considered as imposing criminal consequences, they do not result in the determination of a criminal charge pursuant to section 24(1) of the Charter.

Right not to be tried or punished more than once (section 26 of the Charter)

As noted above, section 26 of the Charter 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, and vice versa.

As I have concluded above that the civil penalties provided for by clause 41 of the Bill would not be considered punitive or a criminal sanction, and therefore would not be of such a nature and magnitude to constitute truly penal consequences, a person’s right not to be punished more than once under section 26 of the Charter would not be engaged by new section 5.8.23F. Section 5.8.23F, inserted into the ETRA by clause ‍41, provides that a criminal proceeding may be commenced against a person for conduct that is substantially the same as conduct constituting the contravention of a civil penalty provision, noting that:

• the Magistrates’ Court must not make a contravention order in respect of a person if that person has been convicted of an offence constituted by that conduct (new section 5.8.23D); and

• a proceeding for a contravention order in respect of a person must be stayed if a criminal proceeding has been commenced against that person for an offence, and the offence is constituted by that conduct (new section 5.8.23E).

Accordingly, I consider that clause 41 of the Bill is compatible with the right not to be tried or punished more than once under section 26 of the Charter.

Protection against self-incrimination (section 25(2)(k) of the Charter)

By providing that information given and documents produced by a person in a proceeding for a contravention order are not admissible in evidence in a criminal proceeding against that person for an offence constituted by conduct that is substantially the same as the conduct for which the contravention order was sought, I consider that new section 5.8.23G is compatible with the protection against self-incrimination in section ‍25(2)(k).

Adverse publicity orders and publication of details of non-compliance

By expanding the Court’s power in section 5.8.30 of the ETRA to make adverse publicity orders, clause 47 of the Bill engages sections 13 and 15(2) of the Charter.

As amended by clause 47, section 5.8.30 of the ETRA will relevantly empower the Court to order a person (or body) to publicise or notify of certain matters including the basis for the conviction and any penalty imposed if the person (or body) to whom a notice to produce or a notice to comply is issued is convicted or found guilty of an offence against new sections 5.8.15A(1) (offence to fail to comply with notice to produce issued by the WIV) or 5.8.22A(1) (offence to fail to comply with notice to comply given by the WIV).

Further, clause 48 of the Bill inserts new section 5.8.31A, which provides that the WIV may publish on a website it maintains details including the person’s name and the offence to which the finding of guilt relates if a person (or body) to whom a notice to produce is issued or a notice to comply is given is found guilty of an offence against new section 5.8.15A(1) or 5.8.22A(1) and the WIV considers it in the public interest to do so.

These powers engage:

• the right to privacy in section 13(a) of the Charter, and the right not to have a person’s reputation unlawfully attacked in section 13(b), by making the commission of an offence known to a specific group of people or to the general public; and

• the right to freedom of expression in section 15(2) of the Charter, by compelling a person to impart information.

To the extent that the rights in sections 13 and 15(2) are limited, I consider any limitations to be justified. Adverse publicity orders and further publication of details of non-compliance serve the important purpose of seeking to promote accountability by preventing a person from concealing that they have been convicted of offences and required to pay penalties under the Bill, and ensuring that participants in the apprenticeship and traineeship scheme are aware of relevant matters when deciding whether to engage with, or train with, that person. For some individuals or organisations, the financial penalties imposed by the Bill may not be a sufficient deterrent to reoffend. In these cases, potential damage to reputation via adverse publicity may be a greater incentive to comply with the Bill.

In relation to publication under new section 5.8.31A, that section includes various protections for people (and bodies), including that:

• as noted above, the WIV can only publish the information specified if it considers it is in the public interest; and

• procedural fairness is afforded to the person (or body) affected. Before making a decision to publish information, the WIV must give the affected person (or body) written notice of its intention to publish the information, its reasons for making the decision, and that the person or body may make a written submission setting out why the WIV should not publish the information, which the WIV must consider before making a decision (new section 5.8.31A(3) and (4)).

For these reasons, I consider that clauses 47 and 48 of the Bill are compatible with sections 13 and 15(2) of the Charter.

Apprenticeship and Traineeship Commissioner: ceasing to hold and removal from office

Under new section 31C of the Bill (inserted by clause 68), the Apprenticeship and Traineeship Commissioner ceases to hold office if the Commissioner is convicted of an indictable offence (or of an offence that, if committed in Victoria, would be an indictable offence) (section 31C(c)), or if the Commissioner is removed from office under section 31D (section 31C(e)). Under new section 31D(1)(b), the Governor in Council, on the Minister’s recommendation, may remove the Apprenticeship and Traineeship Commissioner from office on grounds including misconduct by the Commissioner in carrying out the duties of the office.

The nexus between a criminal conviction and the vacation of, or removal from, office engages the:

• right not to be tried or punished more than once (section 26 of the Charter);

• right to a fair hearing (section 24(1)); and

• right to be presumed innocent until proved guilty (section 25(1)).

Rights not to be punished more than once and to have a criminal charge decided by a court

Section 26 of the Charter will be relevant if the vacation of the office of Apprenticeship and Traineeship Commissioner under new section 31C(c) of the Bill constitutes an additional ‘punishment’ for an offence for which the person has been finally convicted. This right may also be relevant to new sections 31C(e) and new section 31D(1)(b), which allows for the possibility that a criminal charge could be considered by the Governor in Council as misconduct. Relevant to the concept of punishment, and following recent decisions of the High Court concerning the constitutional validity of schemes involving ‘legislated punishment’ in the Commonwealth sphere, it may be suggested that the right in section 24(1) to have a criminal charge decided by a court implies a principle that a person may only be punished as a result of a charge being proven in a criminal proceeding.

In my view, sections 31C and 31D do not engage sections 24(1) or 26 of the Charter because the vacation of, or removal from, office of Apprenticeship and Traineeship Commissioner by reference to a criminal charge (as part of an assessment of misconduct), or to a conviction of criminal conduct, is not to be characterised as imposing a form of punishment for the following reasons:

• The mere fact that a law operates to directly impose a detriment on a person does not make it punitive. Rather, the criteria by reference to which the detriment is imposed, and also the purpose for which it is imposed, are central to determining whether the imposition of a particular detriment is properly characterised as punitive. Sections 31C and 31D serve a protective purpose, being to ensure the integrity and good governance of the Apprenticeship and Traineeship Commissioner, and to safeguard the public’s trust and confidence in the office. Consistent with this purpose, a criminal charge will not result in automatic removal from office. Rather, a criminal charge may be a factor in the Governor in Council’s consideration of what constitutes misconduct.

• The nature of the detriment being imposed (i.e. vacation of or removal from office) is not associated with a criminal sanction. A person would not be liable for subsequent sanctions of a criminal nature, such as a fine or imprisonment.

Accordingly, sections 31C and 31D do not amount to double punishment for the purpose of section 26, or engage the determination of a criminal charge pursuant to section 24(1), and these rights are therefore not limited.

Right to be presumed innocent

As noted above, the Supreme Court has found that the right to be presumed innocent until proved guilty according to law in section 25(1) of the Charter appears to apply only in criminal proceedings, which would not include the vacation of, or removal from, office of the Apprenticeship and Traineeship Commissioner under new sections 31C and 31D of the Bill.

In the event that section 25(1) was found to have application beyond criminal proceedings, then if the Governor in Council were to take a criminal charge into account in considering whether the Apprenticeship and Traineeship Commissioner had engaged in misconduct under new section 31D(1)(b), section 25(1) may be limited. However, I consider that any such limitation would be reasonably justified. As noted above, the purpose of these sections is to safeguard the integrity of the office, which is legitimate and important. The Minister, in making a recommendation, will be bound to act compatibly with rights under the Charter and would need to be satisfied that removal from office on the basis of pending charges was reasonable and justified in the circumstances. Accordingly, I consider that any potential limitation would be in proportion to its aim and that sections 31C and 31D would be compatible with section 25(1) of the Charter, if it were found to have application beyond criminal proceedings.

Schools and Other Matters reforms

Section 11(2) of the Charter provides that a person must not be made to perform forced work or compulsory labour. ‘Forced or compulsory labour’ relevantly does not include work or service that forms part of normal civil obligations. While the Charter does not define ‘normal civil obligations’, comparative case law has considered that to qualify as normal civil obligation, the work or service required must be provided for by law, must be imposed for a legitimate purpose, must not be exceptional or have any punitive purpose or effect.

Freedom of movement (section 12)

Section 12 of the Charter relevantly provides that every person lawfully within Victoria has the right to move freely within Victoria. The right extends, generally, to freedom to move throughout the State without impediment or restrictions (both physical and procedural) and a right to access places and services used by members of the public. However, this right is not absolute and may be subject to such reasonable limitations as are demonstrably justified in a free and democratic society, including the property rights of others and restrictions legitimately made in the public interest.

Right to privacy (section 13(a))

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

Section 15(2) of the Charter provides that every person has the right to freedom of expression, which includes the freedom to seek, receive and impart information and ideas of all kinds.

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

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

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ is not limited to judicial decision makers, but may encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers with the power to determine private rights and interests. The right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided. However, the entire decision-making process, including reviews and appeals, must be examined in order to determine whether the right is limited.

Human Rights Issues

Supervision and support agreements and improvement plans

Part 3.3 of the Bill establishes obligations in relation to supervision and support agreements for conditional authority to teach applicants or grantees. Clause 150 will introduce new section 2.6.14AA, which will require that a responsible person at the place at which an applicant for conditional authority to teach will be employed or engaged by must enter into a supervision and support agreement with the Institute, which will set out the way in which supervision and professional support will be provided to the applicant.

Clause 147 will insert a definition of ‘responsible person’ into section 2.6.1 of ETRA, to mean the person in charge of the place at which a person with, or an applicant for, conditional authority to teach is employed or engaged or proposed to be employed or engaged. In the case of a registered school, the responsible.

Under new section 2.6.14AA(4), for the purposes of assessing compliance with a supervision and support agreement, the Institute may request that the responsible person provide information to the Institute that the Institute considers necessary (new section 2.6.14AA(4)(a)), and the responsible person must comply (new section 2.6.14AA(5)). In addition to requests for information, the Institute may conduct a site visit of the place at which the applicant for conditional authority to teach is proposed to be employed or engaged to assess compliance with a supervision and support agreement (in accordance with new section 2.6.14AB in clause ‍150). In conducting a site visit, the Institute may:

• conduct an interview with the responsible person, any other representative of the place at which the person with conditional authority to teach is employed or engaged, and/or the person granted conditional authority to teach (new section 2.6.14AB(3)(a)(i)–(iii));

• request documents that the Institute considers relevant (new section 2.6.14AB(3)(b)); or

• take copies of any documents provided (new section 2.6.14AB(3)(c)).

Under new section 2.6.14AB(4), the Institute must not conduct a site visit unless the principal has consented in writing to the site visit.

Further, clause 150 will introduce new section 2.6.14AC, which will allow the Institute to create improvement plans if the Institute reasonably believe that a responsible person is not complying with a supervision and support agreement. An improvement plan will specify the actions that the Institute requires to be taken to remedy the noncompliance (new section 2.6.14AC(2)(c)). Under new section 2.6.14AC(4), the responsible person must ensure that the improvement plan is complied with.

Freedom from forced or compulsory labour (section 11)

The compulsion to undertake an activity or ‘do’ something as required by an improvement plan under new section 2.6.14AC could potentially, if a broad view of the right was adopted, be relevant to the right to freedom from forced work, specifically on prohibition on compulsory labour in s 11(2) of the Charter. An improvement plan may result in the responsible person, or the person granted conditional authority to teach, being compelled to undertake additional work.

However, I am of the view that if the right is engaged, any work required by an improvement plan issued by the Institute would either fall within the scope of the exception in section 11(3)(c) of the Charter, being work or service that ‘forms part of normal civil obligations’ (assumed in performing a role in a regulated sector), or to the extent that it did not, would be reasonably justified in the circumstances. An improvement plan can only be issued in the context of a supervision and support agreement, which has been entered into with the Institute. The improvement plan is issued for a preventive or remedial purpose; namely, to remedy non-compliance with a supervision and support agreement. The obligation for implementing any remedial action is placed on the responsible person (or their nominee) who has assumed the responsibilities associated with a supervision and support agreement. Finally, the Institute is a public authority under the Charter and must act compatibly with Charter rights when determining the content of an improvement plan.

Accordingly, I am satisfied that any compulsion to perform work effected by this provision will be reasonable and justified.

Right to privacy (section 13)

New sections 2.6.14AA and 2.6.14AB may authorise interference with the privacy, to the extent that the Institute requests information, including documents, regarding matters relevant to the actions of a person subject to a supervision or support agreement, or performs a site visit.

In my view, a site visit will not engage the right to privacy as a low expectation of personal privacy attaches to the premises of a school or other place where a person is employed or engaged with conditional authority to teach, and any visit will occur in non-arbitrary circumstances including adequate notice and consent.

To the extent that the power to interview persons and request further information is relevant to privacy, the right will not be limited. The power will only permit gathering of information necessary to assessing compliance with a supervision and support agreement, which will principally concern information in the course of a person’s employment or teaching engagement to which a person holds a lower expectation of privacy. To the extent that it may extend to information in the private sphere, it will not be arbitrary as it is preconditioned on the requirement of necessity and is directed at the important and legitimate purpose of ensuring that the Institute has sufficient information to effectively assess compliance from persons or bodies who have entered into agreements with the Institute. Further, I note that any information gathered will be subject to information privacy principles in the Privacy and Data Protection Act 2014 and the Charter.

Freedom of expression (section 15)

New section 2.6.14AB is relevant to the right to freedom of expression in section 15(2) of the Charter as it compels a person to impart information and documents. Further, to the extent that the information required to be given is of a private nature and is personal information (rather than information relating to a body corporate or other entity such as a school), the right to privacy in section 13(a) of the Charter may also be engaged (as discussed above).

However, I consider that these rights would not be limited, as these information gathering notices serve the important and necessary purpose of monitoring and investigating compliance with supervision and support agreements. The scope of the provision extends only to documents or information relevant to monitoring compliance in this context. It is necessary for the Institute to be able to seek such information to ensure the effective administration of the regulatory scheme, and to use it to determine whether an improvement plan is needed to remedy any defects. Further, the requirement to provide documents or information in this context is consistent with the reasonable expectations of persons who have assumed special roles and entered into an agreement to provide supervision and professional support.

Amendments to school community safety order scheme – immediate orders

The Bill makes amendments to the existing school community safety order scheme, which allows principals and other authorised persons in Victorian schools to make school community safety orders. Such orders can stop or restrict the actions of parents, carers and other adults who behave in harmful, threatening, or abusive ways towards people in the school community.

Part 3.4 of the Bill proposes to insert new provisions amending the existing process for authorised persons (as defined in the Act) to make immediate orders under the scheme:

• Clause 154 inserts new section 2.1A.3A to require an authorised person, to the extent it is reasonable and proportionate in the circumstances, to attempt to notify a person who an immediate order may be made in respect of and give them an opportunity to respond to the proposal;

• Clause 155 will remove ‘imminent’ from the threshold of the condition precedent of ‘imminent and unacceptable risk of harm’ required to make an immediate order;

• Section 2.1A.7(2) of the ETRA is amended to require an authorised person who makes an immediate order orally to state that the order prohibits a person from entering or remaining at the specified ‘school-related place of the relevant school’ (and any other matters prescribed to be stated under Division 5 of Part 2.1A of the ETRA) (clause 156);

• Clause 158 inserts new section 2.1A.9A, which allows authorised persons to extend an immediate order by one further period of up to 7 days if the authorised person reasonably believes that the grounds for making the order still exist, and the authorised person (or another authorised person) requires additional time to determine whether to make an ongoing order in respect of a person who is the subject of an immediate order or to give notice that an ongoing order is proposed to be made, or has been made; and

• Clause 159 repeals sections 2.1A.11 and 2.1A.12 of the ETRA, which, respectively, allow a person to whom an immediate order applies to make submissions in respect of immediate orders, and allowed an authorised person to review the immediate order to either make an ongoing order or to revoke the immediate order.

Lowering the threshold for making immediate orders and power to extend the duration

As outlined in the Statement of Compatibility to the Bill which introduced the school community safety orders (Education and Training Reform Amendment (Protection of School Communities) Bill 2021) (previous statement), the powers to make school community safety orders are relevant to various human rights, including:

• the rights to privacy, freedoms of expression and association (through orders to prohibit a person from communicating with specified school staff or corresponding with others on school-related communications platforms);

• the right to freedom of movement (through orders which prohibit a person from entering or remaining on any relevant school-related place and their immediate surrounds);

• the right to protection of families and children (through the effect of orders interfering with the ability of family members to attend school events, accompany children on excursions or school camps, volunteer at the school, communicate with school staff, or otherwise engage with the child’s education at the school);

• the right to equality (through the potential for orders to be made in response to behaviours that are a symptom of the protected attribute of disability, such as mental illness or cognitive impairment); and

• fair hearing (through the procedures for making orders affecting rights).

The previous Statement assessed the scheme as compatible with the above rights, as the scheme serves an important purpose of protecting the rights and safety of school staff and students, it goes no further than necessary to achieve its purpose, and is subject to sufficient procedural safeguards to protect against disproportionate impacts on vulnerable individuals.

As this Bill will lower the threshold for making an immediate order and therefore expand the potential circumstances in which orders may be made, as well as provide for extending the duration of an immediate order, the Bill could be characterised as authorising greater interferences with the above rights than was previously provided for. However, I am of the view that these amendments are both warranted and moderate in their effects, and will not alter the assessment of compatibility in the previous Statement.

The removal of the requirement that an unacceptable risk be ‘imminent’ is to give effect to the recommendations of the School Community Safety Order Scheme Statutory Review (the Review) to make the immediate order scheme more practical to use. This arose in the context of the Review noting the declining use of immediate orders as the imminency threshold was considered to be too high to be workable in practice, and making it impracticable to also comply with the scheme’s procedural requirements. Although removing the word ‘imminent’ allows for a wider set of circumstances in which an order can be made, I am satisfied that the existing framework and safeguards outlined in the previous Statement of Compatibility, with new procedural safeguards I discuss below, ensures the scheme remains compatible with human rights.

The Bill also provides for the extension of immediate orders for up to seven days, if the grounds for making an order still exist and additional time is needed in order to transition the matter to an ongoing order. This is to reflect the fact that the Review found that it takes around 2 to 3 weeks for an authorised person to make an ongoing order, such as seeking any advice to inform their decision or to follow the relevant process for making the ongoing order. By having the option to extend the duration of an immediate order by an additional seven days, an authorised person will have additional time to decide whether to make an ongoing order. The Bill requires an authorised person to be satisfied that the grounds for making an immediate order still exist to justify an extension, which ensures that an extension is appropriately tied to the purpose of reducing harm, interference or disruption in schools. New section 2.1A.9A makes clear that immediate orders cannot remain in force for more than 21 days. Further, clause 153 of the Bill inserts a new restriction to limit the number of immediate orders that can be made against the same person within a certain period in the circumstances prescribed in Ministerial Guidelines, to prevent against misuse and ensure that any need for multiple orders is dealt with under the ongoing orders scheme.

Fair hearing (section 24)

The Bill makes a number of amendments to streamline the process and procedures for making immediate orders. To the extent that the decisions to make, extend, or revoke an immediate order provided for in clauses 155, 158 and 159 of the Bill would enliven a broad reading of the right to a fair hearing in section 24(1) of the Charter, I consider that the amendments continue to ensure procedural fairness is safeguarded so as to not limit this right.

The Bill abolishes existing provisions relating to making submissions and internal review, and replaces them with a new procedural fairness process that is reasonable and proportionate to the circumstances and in accordance with any guidelines made under Division 5 of Part 2.1A. New section 2.1A.3A introduces new requirements to notify persons to whom an immediate order may apply that an order may be made and the reasons for that order, give the person an opportunity to respond to the proposal, and consider any response by the person. These must be applied to the extent it is reasonable and proportionate in the circumstances, which ensures the procedural requirements are not a barrier to responding to urgent circumstances such as an imminent risk. The Bill removes the existing redundant requirement to immediately review an order, which was in place due to the previous displacement of procedural fairness. While this will mean immediate orders will generally continue to have effect for their short duration, if an authorised person wishes to revoke an immediate order or make an ongoing order, they may do so in accordance with the relevant provisions in the ETRA.

The Bill also makes amendments to clarify when an immediate order remains in force, ensuring greater certainty in the duration of orders. Under clause 159, the repeal of the authorised person’s power to revoke an immediate order following review of the order is supplanted by the fact that an immediate order expires after 14 days (or, if specified in the order, an earlier date), and an authorised person can allow it to lapse without further action (for example, where the authorised person has formed the view that the immediate order has been sufficient in addressing the relevant risk).

In relation to the new power to extend an order, while a person is not afforded procedural fairness in relation to the decision to extend the order, a further reasonable and proportionate opportunity to make submissions will be afforded if, and when, an ongoing order is proposed to be made. I am satisfied that it is not practicable to afford procedural fairness at this point given the short duration of this extension, which is predominantly aimed at facilitating a more informed decision as to whether to allow the order to expire or to seek an ongoing order.

I am therefore satisfied that the above process is on balance compatible with fair hearing.

Amendments to ongoing order scheme

Part 3.4 of the Bill also makes amendments to the current ongoing order scheme:

• Clauses 160 and 161 repeal the existing ‘show cause’ process and replaces it with an obligation for an authorised person to give the person to whom an ongoing order is to apply an opportunity that is reasonable and proportionate in the circumstances and in accordance with any guidelines made by the Minister for Education under Division 5 of Part 2.1A;

• Clause 162 amends section 2.1A.26(1) of the ETRA to allow an authorised person, whether or not they made the ongoing order, to vary an ongoing order;

• Clause 163 amends section 2.1A.27 to allow an ongoing order to continue for a period not exceeding 12 months from the day of the order or for an extended period under new section 2.1A.27A. New section 2.1A.27A allows an authorised person to extend an ongoing order for a further period not exceeding 12 ‍months if the authorised person is satisfied that the grounds for the ongoing order continue to exist, and may vary any other term or condition of the order;

• Clause 164 makes a number of amendments to the internal review of an ongoing order in section 2.1A.29 of the ETRA, including providing for seeking review of an extension of an ongoing order made under new section 2.1A.27A of the ETRA, and the specified circumstances in which such review can be applied for;

• Clause 164 also inserts new subsection 2.1A.29(8), to provide that where internal review is expanded to include both the original decision to make an ongoing order, as well as the decision to extend the order a person may not make a separate internal review application in relation to the decision to extend the order; and

• Clause 167 which provides for expansion of VCAT’s jurisdiction to review extensions of ongoing orders where a VCAT review of the original order is on foot.

Extending existing interferences with rights

Drawing on my discussion regarding the immediate order scheme, the power conferred in clause 163 to extend an ongoing order will, when exercised, extend the duration of existing interferences with substantive rights effected by the order under the ETRA (as identified in my previous discussion).

As above, I consider that this amendment will not alter the previous assessment of the scheme’s compatibility. An extension period is limited to no more than 12 months on the basis that the authorised person is satisfied that the grounds for making the ongoing order continue to still exist, which ties an extension to the purpose of the order (being to reduce harm, interference and disruption in schools). As such, I consider that any continued interference with rights effected by the extension of an ongoing order is justified and serves the purpose of ensuring that schools are safe places for staff and for students. Further, it is also subject to a grant of additional procedural safeguards, which I now discuss.

Fair hearing (section 24)

To the extent that extending an ongoing order for a period not exceeding 12 months from the day of the order under new section 2.1A.27A, including making any variations to the terms or conditions of the order, may engage a broad reading of the right, I consider that the right would not be limited because the authorised person must exercise their powers in accordance with the processes set out in the Bill.

The Bill replaces the previous ‘show cause’ process with a reasonable and proportionate procedural fairness process. The previous show cause requirement was found to unduly impair an authorised person’s ability to make an ongoing order as well as to enliven risks of harm to authorised persons through the requirement to re-engage with a person in circumstances where the person is being hostile, threatening or violent. This new obligation balances procedural fairness with protection of others, and allows a flexible approach according to individual circumstances. Additional guidance will be provided in the Ministerial Guidelines on what will be considered reasonable and proportionate in the circumstances. Given that the scheme is designed to be a tool of last resort after all other mechanisms have been exhausted, an order is unlikely to be made without a history of prior engagement, nor be unexpected or unforeseeable by the person being subjected to it. In such cases, the opportunity to be heard before an order is made may be less than for isolated or once off incidents, and even so, any procedural fairness that is not afforded due to being considered unreasonable in the circumstances, is still required to be afforded under the internal and external review procedures.

In relation to extension of orders, the Bill safeguards procedural fairness by providing clear grounds for making an extension to an ongoing order, being that an authorised person (whether or not the authorised person who made the order) must be satisfied that the grounds on which the order was originally made continue to exist (new section 2.1A.27A(1)). Further, before an order is extended under new section 2.1A.27A(1), the authorised person must give written notice of the extension and any variation to the terms and conditions of the order, with a copy of the extended and varied order (new section 2.1A.27A(3)). Finally, the Bill extends the existing entitlements to apply for internal and external review to decisions to an extend an ongoing order, subject to appropriate qualifications on reasonableness and fairness where a review is already on foot before VCAT.

Powers to make digital content school community safety orders

Clause 170 of the Bill introduces new Divisions 4A and 4B of Part 2.1A to grant powers to make digital content school community safety orders that extend to regulating behaviour on communication platforms or channels. A ‘communication platform or channel’ includes a social media platform, website, and an email or text messaging service. This includes all communication platforms or channels which enable electronic communication, and not just those operated or owned by a school.

New section 2.1A.34B will empower an authorised person to make a digital content order that prohibits a person from publishing content or material or communicating information on a communication platform or channel in order to:

• harm, abuse, intimidate or threaten a staff member of, or a student enrolled at the school specified in the order;

• interfere with the wellbeing and safety of students enrolled at the relevant school specified in the order;

• cause significant disruption to, or significant interference with, school operations or activities carried on by the relevant school specified in the order; or

• cause significant interference with the educational opportunities provided to students by the relevant school specified in the order.

This includes prohibiting the person from causing a third person to engage in the above behaviour (new section 2.1A.34B(1)(b)). A digital content order can, if applicable, require the person to amend or remove any content or material published or information communicated by the person on a communication platform or channel that does any of the things specified above (new section 2.1A.34B(1)(c)).

An authorised person may make a digital content order in respect of a person that requires the person to amend or remove any content or material published or information communicated by another person on a communication platform or channel that does any of the things described above, where the person who is subject to the order is able to amend or remove the content (new section 2.1A.34B(2)(a)–(b)).

Under new section 2.1A.34D, an authorised person can make a digital content order of a kind specified in new section 2.1A.34B(1) in respect of another person if they reasonably believe that there is an unacceptable risk of:

• harm to a staff member of, or student enrolled at, the relevant school; or

• interfering with the wellbeing and safety of students enrolled at the relevant school; or

• causing significant disruption to, or significant interference with the relevant school operations or activities carried on by the relevant school, or causing significant interferences with the educational opportunities provided to students enrolled by or at the relevant school.

Similar grounds are required to be satisfied if an authorised person makes a digital content order of a kind specified in new section 2.1A.34B2).

An authorised person must consider the vulnerability of the other person of which the authorised person is aware and whether the order is the least restrictive means available to address the grounds on which the order is proposed to be made (new section 2.1A.34D(3)).

Under new section 2.1A.34D(4), an authorised person is not permitted to make a digital content order unless:

• the content, material or information to be prohibited, amended or removed directly impacts, or is reasonably likely to directly impact, the capacity of –

• a student to participate in a school activity or engage in education or learning opportunities provided by the relevant school while at the school; or

• a principal, teacher or any other staff member at the relevant school to perform their work or duties for or at the school; and

• the order is reasonably necessary to address the grounds on which the order is proposed to be made.

New section 2.1A.34E requires written notice to be given to the person to whom the order applies to. New section 2.1A.34G provides the form in which a digital content order must take, including naming the person to whom the order applies to, the grounds on which the order has been made, and any conditions that are attached to the order, and stating if the order requires the person to amend or remove content or material published or information communicated, by the person on a communication platform or channel (and by what date).

New section 2.1A.34H requires an authorised person to not make a digital content order unless notice has been given to the person to whom the order would apply and an opportunity that is reasonable and proportionate to the circumstances to make submissions on the proposal. Any submissions received from the person to whom the order would apply must be considered in determining whether to make a digital content order, including for digital content orders made in respect of a person who is not a parent of a child at the school (new section 2.1A.34I(2)).

New section 2.1A.34I provides for communication and access arrangements to be made for digital content orders.

An authorised person making a digital content order must determine the period of duration that an order is to remain in force and may determine any conditions to be attached to the order (new sections 2.1A.34J and 2.1A.34M regarding the maximum duration of an order). An order can be revoked in accordance with the requirements in new section 2.1A.34L. An order can be varied by an authorised person under new section 2.1A.34L, and extended by new section 2.1A.34N.

Contravention of a digital content order may result in a civil penalty (new section 2.1A.34O).

New Division 4B provides for the internal and external review of digital content orders.

These provisions are relevant to the rights to freedom of expression, privacy and fair hearing.

Freedom of expression (section 15)

The exact scope of the right to freedom of expression in section 15(3) is still emerging. In comparative jurisprudence, the right has been found to protect criticism and protest as well as offensive, disturbing or shocking information or ideas, rather than merely favourable or popular expressions (see eg, Sunday Times v United Kingdom (No 2) [1992] 14 EHRR 123). However, the Supreme Court of Victoria has observed that the term ‘expression’ in section 15 of the Charter should not be regarded as unqualified or absolute, and what is protected expression must be informed by public policy considerations inherent in the nature of a free and democratic society (Magee v Delaney (2012) 39 VR 50, [86]).

The Bill restricts freedom of expression by enabling an authorised person to make an order prohibiting a person from communicating on a communication platform or channel about a staff member or a student, including by causing a third person to engage in the same communication. In addition, a digital content order may require that the person amend or remove the content or material published or information communicated on a communication platform or channel, which includes a social media platform, website, and an email or text messaging service. An order may also require that a person to amend or remove any content or material published or information communicated, by another person, which will inhibit the other person’s freedom to communicate.

I acknowledge that these provisions are novel and such orders are likely to significantly interfere with freedom of expression, to the extent that the right protects the freedom to engage in harmful, intimidating and abusive communications. It will do so in relation to an individual’s expression on platforms and in spheres that are beyond those controlled by the school, where an individual is generally free to communicate and express ideas without constraint (within the limits of the law and subject to the terms of service of these platforms).

However, I consider that these provisions will enliven the internal limit which permits restrictions reasonably necessary to protect the rights of others (section 15(3) of the Charter).

The provisions serve an important, legitimate and necessary purpose. This is to reduce harm to and harassment of staff and students and significant disruption of or, interference with school activities and operations, or the educational opportunities of students. These amendments are made in the context of recent and rapid increases in the number of e-safety (meaning electronic or online safety) incidents where staff and/or students are being abused, or threatened through social media and other forms of communication. Between 2022 and 2024, schools have reported hundreds of incidents of inappropriate social media behaviour from a parent, carer or advocate. Many of these incidents significantly impact the mental health and wellbeing of school staff, which has a flow-on detrimental effect on educational outcomes. In some circumstances they can pose a risk to physical safety where online comments incite or provoke aggression and violence in a person. Schools do not currently have sufficient means to deal with these diverse and emerging e-safety incidents and hazards. Existing tools provided by the ETRA are limited to school-owned or controlled platforms and channels. Social media companies often have a high bar for removal of content from platforms.

The scope of the provisions is appropriately tailored to achieve this important objective and ensure the orders go no further than necessary. The orders are limited to prohibiting communications for specific purposes that reach an appropriate threshold of seriousness. This includes publishing content or material, or communicating information, on a communication platform or channel in order to harm, abuse, intimidate or threaten a staff member or student of a specified school, to interfere with the wellbeing and safety of students enrolled at a specified school, to cause significant disruption to or interference with school operations or activities, or to cause significant interference with the education opportunities of enrolled students. I consider these criteria to be sufficiently detailed and targeted so that they capture e-safety incidents of concern, and do not extend to targeting mere criticism or disagreement, or the communication of robust views.

Additionally, the order only targets communications for purposes specified in the order, and does not otherwise affect an individual’s broader freedom to continue using such platforms or channels or communicating and expressing other ideas on those platforms or channels that do not engage the terms of the order. The framework for making the order also requires there to be nexus between the purpose of the order and the relevant school. This means that a digital content order cannot be made unless the content, material, or information to be prohibited, amended or removed directly impacts, or is reasonably likely to directly impact, students and staff of the relevant school in specified ways.

Various safeguards are built into the scheme. The Bill prevents such orders from being imposed on a staff member or student, or a child (new section 2.1A.34B(3)). The grounds for making an order under new section 2.1A.34D(1) in respect of a person requires a reasonable belief that there is an unacceptable risk of the person doing the actions or behaviours set out above. Similarly, the grounds for imposing an order on a person in relation to amending or removing content or material published, or information communicated, by another person requires the authorised person to have reasonable belief that the person is able to amend or remove the content, material, or information and that there is an unacceptable risk that the content, material, or information required to be amended or removed causes, or is likely to cause, the types of harm, interference or disruption outlined above. An unacceptable risk is a recognised legal criterion that involves considering both the likelihood and gravity of a specified risk to determine if that risk is unacceptable. Under new section 2.1A.34D(3), before making an order, an authorised person must consider any vulnerability of the other person (which the authorised person is aware) and whether the order is the least restrictive means available to address the grounds on which the order is proposed to be made. Further, new section 2.1A.34D(4) provides that an order cannot be made unless the authorised person is satisfied the order is reasonably necessary, and that the content, material, or information to be prohibited, amended or removed directly impacts, or is likely to impact, a student to participate in a school activity or engage in education or learning opportunities, or a staff member at the relevant school to perform their work or duties for or at the school. I consider this multi-stepped criteria to be sufficiently tailored and robust to ensure that any resulting order will occur in circumstances where there is a legitimate and pressing need to protect students or staff at the relevant school, will go no further than is necessary to address those protective aims and will constitute the least restrictive means in the circumstances.

The Bill also provides a process to ensure procedural fairness and accountability. New section 2.1.A34H requires written notice to be provided to the person to whom the order applies with a list of mandatory matters which must be outlined in the notice. A reasonable and proportionate opportunity must be provided to the person to make submissions in response on the proposed order, in accordance with any Ministerial guidelines, and an authorised person must consider those submissions if reasonable and proportionate in the circumstances to do so. In addition to the procedural requirements in the Bill, an authorised person will be a public authority for the purposes of the Charter and be obliged to consider human rights when making a digital content school community safety order. The Bill also provides discretion for an order to be revoked if the requested actions in the notice are undertaken. Similar procedural fairness provisions are afforded to any extension of an order. A person to whom a digital content school community safety order applies may apply for both internal review and external merits review by VCAT.

Finally, the administration of an order must be carried out in accordance with a communication and access protocol under new section 2.1A.34I to be prepared following the making of an order, which sets out the measures to be taken to ensure that a parent subject to an order may continue to communicate with the school and be informed about their child’s education, and the arrangements to ensure their child’s continued attendance at and safe access to the school and school activities. This is an important safeguard that seeks to mitigate the impact of the order on an affected person’s human rights beyond what is necessary to give effect to the order. By obliging an authorised person to prepare a protocol for managing a person’s access and communication with the school (where relevant), this protects the administration of the order from arbitrarily affecting a child’s education or prejudicing their best interests, or from arbitrarily interfering with family life. Guidelines will be prepared requiring such protocols to set out certain matters, to better ensure their consistency and proportionality. Further, any enforcement of a contravention of an order (by way of a civil penalty) is to be effected by application to the Magistrates Court, which will determine such application in accordance with the administration of justice and provision of procedural fairness.

Accordingly, with recognition to the novel and potentially significant impact of a digital content school community safety orders, I am satisfied on balance that this new scheme is appropriately tailored and circumscribed, subject to sufficient safeguards and oversight, and for the important and pressing purpose to constitute a restriction reasonably necessary to protect the rights of others. I am satisfied that the new scheme is compatible with the freedom of expression.

Right to privacy (section 13(a))

The power to make a digital content order will also be relevant to the right to privacy in that restrictions on expression may also interfere with elements of a person’s private life, including their use of technology and expression of ideas in their private life, as well as the ability to develop relationships with others. The right to privacy recognises the importance of a person’s autonomy, among other things, in their own private sphere and protects the freedom from the unjustified involvement of public authorities in their private sphere. As such, content or material published, or information communicated, by an individual on an independent platform and, particularly, outside of a school environment will likely constitute interference in a person’s private sphere. Further, an order has the potential to indirectly interfere with matters of family life as restrictions on a parent or carer that are relevant to participation in school life is likely to closely relate to things within the family sphere.

However, for the same reasons as I outlined above in my discussion on the right to freedom of expression, any interference with privacy will be lawful and not arbitrary due to the digital content order framework being appropriately tailored and circumscribed, subject to sufficient safeguards and oversight, and for the important and necessary purpose of safeguarding child safety, wellbeing and educational outcomes, and staff safety and wellbeing. I am satisfied that these provisions are compatible with the right to privacy.

Fair hearing (section 24)

I have already discussed the procedure for making these orders above, but for completeness, the right to fair hearing is engaged by these provisions because, to the extent that a school principal or school proprietor (or person authorised by the school) is an ‘authorised person’ who is able to make a digital content order, the decision may not be free from the perception of bias. Such a person may be closely connected to the matter at hand – for example, they may be the employer of a school staff member protected by the order, or they themselves may be one of the relevant school staff members protected by the order. As such, in some cases where a principal may have been involved in the matter, the right to have a proceeding decided by an impartial tribunal could be limited at the original decision-making stage.

Further, whether or not a person is afforded a fair hearing is considered in light of the decision-making process as a whole, having regard to the nature of the decision and the entirety of the decision-making process, including any avenue of appeal or review. As such, the absence of an impartial tribunal in the making of the original decision to make an order does not necessarily result in incompatibility with the right to a fair hearing.

To address this limit, the Bill introduces new Division 4B, which provides for a multi-layered internal and external review process in which a digital content order may be affirmed, varied or revoked. The Division allows a person affected by a digital content order to seek both internal and external review of the decision, which largely replicates the same review processes for immediate and ongoing orders. This includes requiring internal review procedures to provide opportunities for an affected person to make written or oral submissions, allowing representation for an affected person, providing a written statement on the outcome of the review and reasons for the decision, and being consistent with Ministerial Guidelines under Division 5 of Part 2.1A of the ETRA. Following the outcome of an internal review and if the order has not expired or been revoked, new section 2.1A.34T provides for application to VCAT for external review of an order.

As such, considering the decision-making process as a whole, I consider that the right to a fair hearing is not limited by these provisions.

The Hon Gabrielle Williams MP

Minister for Education

Minister for Skills and Training