Hansard debates

Steve DIMOPOULOS (Oakleigh – Minister for WorkSafe and the TAC, Minister for Sport, Minister for Equality) (11:35): 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 Workplace Legislation Amendment (Accident Compensation and Other Matters) Bill 2026 (the Bill).

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

Overview of the Bill

The Bill makes various amendments to the Workplace Injury Rehabilitation and Compensation Act 2013 (WIRC Act), the Accident Compensation Act 1985 (AC Act), the Transport Accident Act 1986 (TA Act), the Occupational Health and Safety Act 2004 (OHS Act) and the Occupational Health and Safety Amendment (Dangerous Goods) Act 2026 (OHS (DG) Act) to:

• expand the forms of security self-insurers and non-WorkCover employers under the WIRC Act may use to fulfill their financial guarantee requirements;

• enhance the ability of Health and Safety Representatives (HSRs) and Authorised Representatives of Registered Employee Organisations (ARREOs) to identify and resolve occupational health and safety (OHS) issues;

• safeguard against conduct that undermines the effectiveness and integrity of the OHS representation framework;

• make administrative improvements to the OHS representation framework;

• enable the OHS Act amendments to survive the later commencement of the OHS (DG) Act and ensure amendments made to the same sections are not in conflict;

• clarify that the Transport Accident Commission (TAC) and WorkSafe Victoria (WorkSafe) are not liable to fund accommodation costs associated with specialist disability accommodation (SDA);

• align approval of the terms and conditions of the Chair of WorkSafe Board with that of the Board Directors; and

• clarify how Medical Panels fees are set.

Human Rights Issues

The following rights are relevant to the Bill:

• the right to recognition and equality before the law (section 8);

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

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

• the right to property (section 20).

For the reasons detailed below, I am satisfied that the Bill is compatible with the Charter and, if any of the abovementioned rights are limited, those limitations are reasonable and demonstrably justified having regard to the factors within section 7(2) of the Charter.

Right to recognition and equality before the law – section 8

Section 8(1) of the Charter provides that every person has the right to recognition as a person before the law. 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 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 the right in section 8(3) is to ensure that all laws and policies are applied equally, and do not discriminate against a person or class of persons.

‘Discrimination’ under the Charter is defined by reference to the definition in the Equal Opportunity Act 2010 and refers to discrimination based on an attribute in section 6 of that Act, which includes age, race, sex, disability and parental status amongst many others. Direct discrimination occurs where a person treats, or proposes to treat, a person with an attribute unfavourably because of that attribute. Indirect discrimination occurs where a person imposes a requirement, condition or practice that has, or is likely to have, the effect of disadvantaging persons with a protected attribute, but only where that requirement, condition or practice is not reasonable.

Ensuring the TAC is not liable to fund the accommodation costs associated with SDA

The TAC is a public-funded, no-fault compensation scheme designed to provide lifetime care for thousands of Victorians. To ensure the transport accident compensation scheme’s viability and prioritisation of funds for specialised treatments, the long-standing legislative intention underpinning the scheme is to fund accident-related treatment, disability services and loss of earning benefits, and not overall living expenses. Ordinary daily living costs, including accommodation-related costs, are generally excluded as they are needs common to all members of the public and would be incurred regardless of the accident.

Changes the Disability and Social Services Regulation Amendment Act 2023 (DSSRA Act) made to the definition of supported accommodation in the TA Act, to include SDA dwellings, unintentionally expanded this definition and could potentially result in the TAC being deemed liable to fund accommodation and other expenses related to SDA dwellings, in circumstances inconsistent with the long-held legislative intention.

Part 4 of the Bill proposes amendments to the TA Act, primarily to the definition of ‘supported accommodation’, that would return the transport accident compensation scheme to its previous statutory position. These amendments clarify that the TAC is not liable to compensate a person, whether or not they have the protected attribute of disability, for the accommodation component of SDA costs. As a preliminary point, it is arguable as to whether the winding back of a beneficial entitlement is capable of constituting a ‘disadvantage’ to enliven discrimination. If the concept of disadvantage is interpreted broadly to encompass the loss of a statutory entitlement to compensation on the basis of disability, I am satisfied that any limitation on the right is reasonable and justified in the circumstances.

It is anticipated that the cohort of affected persons, identified to be a small cohort currently in SDA, will not be materially impacted by this amendment, which reinstates the previous operation of the TA Act. All identified claimants are joint participants in the National Disability Insurance Scheme (NDIS) and their costs are currently funded by the National Disability Insurance Agency (NDIA). No claims have been made to the TAC pursuant to the expanded definition of ‘supported accommodation’ nor has additional funding been provided by the TAC.

Additionally, the proposed amendments to the TA Act in Part 4 of the Bill have been appropriately tailored to remedy this statutory misalignment with the legislative intention of the scheme, while preserving the additional protections and safeguards that residents in both state-funded and NDIS disability accommodation gained as a result of the major reforms effected by the DSSRA Act.

I am satisfied that the amendments are compatible with the right to recognition and equality.

Ensuring WorkSafe is not liable to fund the accommodation costs associated with SDA

WorkSafe administers Victoria’s statutory, compulsory, no-fault workers’ compensation scheme. The scheme has two core purposes: preventing workplace injuries and illnesses and supporting workers who experience work-related injury or illness through compensation, treatment, rehabilitation and return-to-work support.

To support the sustainability of the workers’ compensation scheme, the long standing legislative intent of the scheme is to fund reasonable and necessary treatment, rehabilitation, income support and other benefits arising from a work-related injury or illness. Consistent with this, WorkSafe does not generally cover ordinary living expenses, including accommodation and other day-to-day costs, as these are expenses a person would ordinarily incur regardless of a workplace injury or illness.

Changes the DSSRA Act made to the definition of supported accommodation in the AC Act and WIRC Act, which extended the definition to include SDA dwellings, could potentially result in WorkSafe being deemed liable to fund accommodation and other expenses related to SDA dwellings, in circumstances inconsistent with the long-held legislative intention.

As with the amendments to the TA Act, Division 2 of Part 2 and Part 3 of the Bill propose amendments to the WIRC Act and AC Act respectively, primarily to the definition of ‘supported accommodation’. The amendments return the WorkCover scheme to the previous statutory position, removing any potential obligation on WorkSafe to compensate a person for the accommodation component of their SDA costs. As a preliminary point, it is arguable as to whether the winding back of a potentially beneficial entitlement is capable of constituting a ‘disadvantage’ to enliven discrimination. If the concept of disadvantage is interpreted broadly to encompass the loss of a statutory entitlement to compensation on the basis of disability, I am satisfied that the amendment is reasonable and justified in the circumstances.

WorkSafe’s analysis indicates that the cohort of affected persons, identified to be a very small number of injured workers currently residing in SDA, will not be impacted by these amendments, which reinstates the previous operation of the WIRC Act and the AC Act.

All identified claimants are joint participants in the NDIS and their costs are currently funded by the NDIA. No claims have been made to WorkSafe pursuant to the expanded definition of ‘supported accommodation’ nor has additional funding been provided by WorkSafe.

Additionally, these amendments have been appropriately tailored to remedy this statutory misalignment with the legislative intention of the workers’ compensation scheme, while preserving the additional protections and safeguards that residents in both state-funded and NDIS disability accommodation gained as a result of the major reforms effected by the DSSRA Act.

I am satisfied that the amendments are compatible with the right to recognition and equality.

The right to privacy and reputation (section 13)

Section 13 of the Charter provides that a person has the right not to have that person’s privacy, family, home or correspondence unlawfully or arbitrarily interfered with; and not to have that person’s reputation unlawfully attacked.

Interferences with privacy will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will not be ‘arbitrary’ if it is not capricious, unpredictable, unjust or unreasonable in the particular circumstances, in the sense of being disproportionate to the legitimate aim sought.

Enhancing the ability of HSRs and ARREOs to identify and resolve OHS issues

Currently, ARREOs have the power to inspect ‘any plant, substance or other thing’ at the place during an entry to enquire into a suspected contravention. Employers also have obligations to provide HSRs access to OHS information.

Part 5 of the Bill amends section 58(1) of the OHS Act to provide that HSRs can access information and make copies of documents relevant to a suspected contravention. It also amends section 89 of the OHS Act to make an equivalent provision for ARREOs.

Providing HSRs and ARREOs with the right to copy documents will increase their capacity to identify OHS risks and participate in discussions with employers and WorkSafe to resolve OHS issues. However, there is a risk that copies of documents could be disclosed to parties that have no direct interest in an OHS issue – for example, publishing documents that disclose sensitive or private information about individuals or information that could harm a person’s reputation.

The power for HSRs and ARREOs to make copies of documents, and any subsequent use of those copies, will not displace existing privacy, secrecy or confidentiality provisions under other laws. Such provisions apply unless expressly displaced and the Bill does not expressly displace those laws. WorkSafe will also develop non-legislative guidance about the secure storage, handling and disposal of copied documents after an investigation has been completed. These measures further support the protection of privacy.

Part 5 of the Bill also includes additional safeguards against the misuse of information, including a prohibition on HSRs from intentionally using or disclosing information from an employer or employee for a purpose not reasonably connected with their statutory powers, and a prohibition on HSRs and ARREOs publishing online information obtained through the exercise of their powers under Parts 7 and 8 of the OHS Act.

These amendments build on existing provisions in the OHS Act. Currently, it is an offence for ARREOs to use or disclose information not reasonably connected with the exercise of their powers, and HSRs may be disqualified if they use information obtained from employers with intent to harm them. HSRs can also be subject to disciplinary action, as an employee.

In my view, HSRs and ARREOs having greater access to information and the ability to make copies of documents will support improved OHS outcomes in Victorian workplaces. The legislative safeguards in place to prevent that information being shared for purposes not connected to the exercise of their powers will limit the interference on a person’s right to privacy under the Charter.

Therefore, I consider that the amendments are proportionate and appropriately justified such that they are compatible with the right to privacy and reputation in section 13 of the Charter.

Safeguarding against conduct that undermines the effectiveness and integrity of the OHS representation framework

Part 5 of the Bill amends section 56(1) of the OHS Act to provide that an HSR may be disqualified for intentionally using or disclosing information obtained from an employer, or photographs, measurements, sketches or recordings, for a purpose not reasonably connected with the exercise of a power under Part 7 of the OHS Act. It also provides that an HSR may be disqualified for contravening new section 58A, which expressly prohibits an HSR from publishing online information obtained through the exercise of powers under Part 7 of the OHS Act. For the purposes of this prohibition, publishing online includes broadcasting on the internet or by other electronic communication, including on social media.

Part 5 of the Bill also imposes an equivalent prohibition on ARREOs publishing online information obtained through the exercise of powers under Part 8 of the OHS Act. It additionally provides that it is an offence for an ARREO to contravene the prohibition or to intentionally use or disclose copies of documents obtained through the exercise of statutory powers, as well as photographs, measurements, sketches and recordings, for a purpose not reasonably connected with the exercise of powers under Part 8 of the OHS Act.

The recording and information-gathering powers conferred on HSRs and ARREOs are intended to support the raising, investigation and resolution of occupational health and safety concerns, including by enabling possible contraventions to be reported to WorkSafe and discussed with employers. Those powers are not intended to facilitate the broader public dissemination of workplace information, including sensitive or identifying material, to persons with no direct connection to the OHS matter.

Although online publication of photographs, recordings or other material might in some cases draw attention to occupational health and safety risks, the Bill recognises that any such benefit is outweighed by the risk of serious and potentially irreversible harm to privacy and reputation arising from unauthorised online disclosure. Material obtained in the exercise of statutory powers may contain personal and other sensitive information. Once published online, that material may be difficult or impossible to remove and may be further disseminated beyond the control of the person who first published it.

The amendments are also appropriately confined. They do not prevent HSRs or ARREOs from obtaining information, making recordings, or raising health and safety concerns through lawful channels connected with the exercise of their statutory functions. Rather, they clarify that information and material obtained under Parts 7 and 8 of the OHS Act must only be used for purposes reasonably connected with those functions, and not for unrelated publication or disclosure to the public. In this way, the amendments support the proper operation of the OHS representation framework while preserving the integrity of investigations and informal workplace resolution processes.

Part 5 of the Bill amends the OHS Act to introduce new criminal offences prohibiting coercion in relation to matters under Part 7 and Part 8 of the OHS Act. This supports the integrity of the statutory framework by reducing the risk that HSRs and ARREOs are pressured or intimidated into improper or unlawful conduct, including conduct that may adversely affect the rights or reputations of others.

For these reasons, any limitation on the right to privacy and reputation is reasonable and justified in accordance with section 7(2) of the Charter. I am therefore satisfied that the amendments are compatible with the right to privacy and reputation in section 13 of the Charter.

The right to freedom of expression (section 15)

Section 15 of the Charter protects the right of every person to hold opinions without interference and the right to freedom of expression. This includes the freedom to seek, receive and impart information and ideas, whether within or outside Victoria and through any medium of communication. The right is not absolute and carries special duties and responsibilities. The right may therefore be subject to lawful restrictions that are reasonably necessary to respect the rights and reputation of other persons or for the protection of national security, public order, public health or public morality.

Safeguarding against conduct that undermines the effectiveness and integrity of the OHS representation framework

Part 5 of the Bill limits the right to freedom of expression by restricting the online publication, use and disclosure by HSRs and ARREOs of information and other material obtained through the exercise of statutory powers under Parts 7 and 8 of the OHS Act. For the reasons set out above in relation to section 13, these amendments pursue the legitimate purpose of protecting privacy and reputation and preserving the integrity of the OHS representation framework.

This limitation is targeted and proportionate. It does not prevent HSRs or ARREOs from raising health and safety concerns, consulting with employers or workers, or referring matters to WorkSafe. Rather, it ensures that information obtained through statutory powers is used only for purposes reasonably connected with the exercise of those powers, and not for unrelated online publication or disclosure.

Further, material obtained through the exercise of statutory powers may include sensitive personal, workplace or commercial information. Unauthorised online publication may cause substantial harm to privacy and reputation and may undermine confidence in the proper use of OHS powers. Although publication may in some circumstances draw attention to safety concerns, the Bill recognises that this potential benefit does not outweigh the risks of misuse, broader dissemination and harm to affected persons. Less restrictive means would not adequately address those risks, particularly given the ease and permanence of online publication and the availability of alternative lawful avenues for raising and pursuing OHS concerns.

Accordingly, to the extent that the amendments limit the right to freedom of expression, that limitation is compatible with section 15 of the Charter because it is lawful and reasonably necessary to respect the rights and reputation of others, including the rights protected by section 13 of the Charter.

I am therefore satisfied that the Bill is therefore compatible with the right to freedom of expression in section ‍15 of the Charter.

The right to property (s 20)

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with the law. This right requires that powers that authorise the deprivation of property conferred by legislation or common law, are confined and structured rather than unclear, and are accessible to the public. Existing authority also points to laws that arbitrarily permit or require a deprivation of property as limiting the property right under the Charter. While the Charter does not define ‘property’, it is understood to be interpreted liberally and beneficially to encompass economic interests.

It is arguable whether liability for compensation (including a legal right to bring an action) constitutes property under the Charter. However, I note that the Victorian Government has previously adopted the view in Parliament that an accrued right to bring a claim would constitute property under the Charter.

The effect of the amendments proposed in Division 2 of Part 2 and Parts 3 and 4 are to remove any liability on the TAC and WorkSafe to fund the accommodation costs associated with SDA under the TA Act, the AC Act, and the WIRC Act. Accordingly, it would appear open that the removal of a right to statutory compensation in part, such as accommodation costs in SDA, constitutes an economic interest that should be considered a property right under section 20 of the Charter, notwithstanding that such a right was previously excluded by legislation.

As to whether a person is deprived of property, I note that while the proposed amendment removes the TAC’s and WorkSafe’s potential liability to fund accommodation costs for their claimants in SDA, in practice these costs are currently being funded by the NDIA, and claimants themselves will not be out of pocket, deprived of funding or facing a loss of accommodation. I accept that, even if in practice these costs will be funded by another entity, the removal of the TAC’s and WorkSafe’s potential liability for those costs under the TA Act, AC Act and WIRC Act respectively, particularly in circumstances where those costs may have already been accrued, is likely to constitute a deprivation of property.

However, in my view, any deprivation of property will occur in accordance with law and not be arbitrary. The amendments to the TA Act, AC Act and WIRC Act are aimed at achieving a legitimate and important objective, namely restoring the transport accident compensation and the workers’ compensation schemes to their long-standing legislative purposes. In particular, the amendments would support the TAC and WorkSafe in administering those schemes as effectively, efficiently and economically as possible. Neither scheme is intended to operate as an all-encompassing welfare provider.

Integral to this objective is the principle that the TAC and WorkSafe should not be liable to pay for accommodation or general living costs that a claimant would have incurred regardless of whether they had experienced a transport accident or workplace injury or illness. Maintaining this principle is fundamental to the sustainability of both schemes and to the appropriate allocation of a limited pool of compensation to transport accident and workplace-related injuries and illnesses. To give effect to this principle, clear boundaries are needed to ensure that scheme funds are not used to subsidise general living expenses unrelated to a transport accident or workplace injury or illness, and which fall outside the purposes of the schemes. Such costs are more appropriately met through other parts of the social support system, including Centrelink or the NDIS, rather than by the TAC in its role as a statutory motor vehicle accident insurer, or WorkSafe in its role as a workplace injury insurer. Additionally, the TAC and WorkSafe already provide significant financial support to claimants, through income benefits and common law pecuniary loss damages payments, that may be applied towards daily living expenses, including accommodation costs. Funding accommodation in addition to these forms of support may result in claimants being compensated twice for the same or substantially similar expenses.

As the transport accident compensation scheme is self-funded through the transport accident charge component of vehicle registration fees, it is in the public interest that the transport accident charge paid by vehicle owners to fund the scheme remains affordable. Similarly, the workers’ compensation scheme is funded through employer premiums, and it is in the public interest that those premiums remain affordable. If employer premiums were to become unaffordable, this could adversely affect the financial sustainability and competitiveness of businesses.

In terms of the retrospective effect of these amendments, although I accept a theoretical limit on the right would arise in circumstances where an existing entitlement to compensation that has already accrued is removed – in these circumstances these amendments will not have a material effect on existing claimants, which constitute a small cohort of persons. Neither the TAC nor WorkSafe have received any claims to fund SDA costs for claimants with these costs currently funded by the NDIA.

I am satisfied that the amendments are compatible with the right to property.

Steve Dimopoulos MP

Minister for WorkSafe and the TAC

Minister for Sport

Minister for Equality