Hansard debates

Sonya KILKENNY (Carrum – Attorney-General, Minister for Planning) (12:09): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Worker Screening Amendment (Strengthening the Working with Children Check) Bill 2025:

Opening paragraphs

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 Worker Screening Amendment (Strengthening the Working with Children Check) Bill 2025.

In my opinion, the Worker Screening Amendment (Strengthening the Working with Children Check) Bill ‍2025, 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

The Bill strengthens the operation of the Working with Children (WWC) check by implementing reforms to the Worker Screening Act 2020 (Act). The purpose of the Bill is to assist in the protection of children from harm by strengthening the screening processes of the WWC check, including the treatment of criminal history information and relevant regulatory and disciplinary findings of people who work with children. Screening is necessary to reduce the risk that persons who may harm children will be placed in positions of care and trust.

A key reform in the Bill is to implement mutual recognition of WWC exclusions. The Bill will amend the Act to provide that a WWC exclusion issued in another state or territory is to be treated as a WWC exclusion under the Act. This means that a person who is excluded from child-related work under a corresponding working with children law will be excluded from child-related work under the Act.

The Bill also contains reforms that were identified by government through an urgent review of Victoria’s WWC check scheme. These reforms will:

• prohibit certain individuals from working with children pending assessment or re-assessment;

• extend time limits for the laying of charges related to the summary offence of providing false or misleading information; and

• cancel clearances previously given to a person who provided false or misleading information when making an application or during a re-assessment, or where the person was prohibited from applying for a WWC check under the Act.

Human Rights Issues

The following rights are relevant to the Bill:

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

• right to privacy (section 13)

• protection of families and children (section 17)

• right to a fair hearing (section 24)

• rights in criminal proceedings (section 25)

• right not to be punished more than once for the same offence (section 26)

• the protection against retrospective criminal laws (section 27)

Under the Charter, rights can be subject to limits that are reasonable and justifiable in a free and democratic society based on human dignity, equality and freedom. Rights may be limited to protect other rights. As discussed below, I am satisfied that the provisions of the Bill are compatible with the Charter and, to the extent that any rights are limited, those limitations are reasonable and justified in accordance with section 7(2) of the Charter.

Right to recognition and equality before the law

Section 8 of the Charter provides that every person has the right to recognition as a person before the law and to enjoy their human rights without discrimination. It also protects the right for every person to be equal before the law and to be entitled to equal protection of the law without discrimination and the right to equal and effective protection against discrimination.

Recognition of inter-jurisdictional WWC exclusions

Legal recognition under the law (section 8(1) Charter) requires that persons enjoy equal rights under the law and receive the protection of Charter rights. In addition, section 8(3) of the Charter provides that every person is equal before the law and is entitled to the equal protection of the law without discrimination. There is some uncertainty whether this right is intended to operate as a prohibition on unequal treatment by reference to discrimination based on a protected attribute as defined in the Equal Opportunity Act 2010 or has a broader application beyond the protected attributes.

The right to recognition as a person before the law, and, assuming an application beyond protected attributes, affording equal protection of the law, may be limited by the provisions which recognise inter-jurisdictional WWC exclusions. By recognising WWC exclusions from other jurisdictions, through prohibiting a person who has been excluded in another jurisdiction, clause 16 of the Bill means that people may be treated differently under the Act depending on whether they have been excluded from a similar scheme in another jurisdiction or not. (The Bill also allows the Secretary to re-assess any previous WWC clearances that were the result of interstate exclusions from child-related work, and provides that once these amendments commence, the person is to be assessed under the new requirements (clause 18).)

This is due to the differences in schemes across jurisdictions. Offence categorisation across states and territories for WWC assessments differ which means that a person excluded in another jurisdiction would be automatically excluded in Victoria, even if the matter that led to the exclusion may not have resulted in the same outcome in Victoria. In addition, most jurisdictions do not have legislated rights protections, which means the original decision-maker would not have been required to consider and act consistently with rights when making an exclusion decision.

However, I consider that these limitations on the right to equality are reasonable and justified. The purpose of these provisions is to implement a joint commitment made by the Commonwealth and state and territory governments for mutual recognition of WWC exclusions, which will ensure greater protection for children from harm. This commitment, which was agreed by the Standing Committee of Attorneys-General, will deliver greater consistency in WWC checks across Australia by ensuring that a person who is excluded in one jurisdiction is barred from working with children in all jurisdictions. This is a first step towards further national reforms including a National Continuous Checking Capability, which will be a secure system that continuously monitors WWC check holders against new criminal history information from national and state/territory datasets, which was a recommendation of the Royal Commission into Institutional Responses to Child Sexual Abuse.

There have been egregious examples of child abuse that have come to light recently that have demonstrated a need to ensure that WWC schemes across Australia are strong and effective.

While there are differences in the legal frameworks for WWC checks across jurisdictions, there are nationally agreed standards and general consistency in the way schemes operate. This means the number of matters where a person excluded in another jurisdiction would not have been subject to the same outcome in Victoria will be limited. In addition, all systems share a common objective: to prevent individuals who pose an unacceptable risk to children from gaining access to child-related employment or volunteer opportunities.

Right to privacy

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

The right to privacy is very broad. The fundamental values which the right to privacy expresses are the physical and psychological integrity, individual and social identity, and autonomy and inherent dignity, of the person. The right protects the individual’s interest in the freedom of their personal and social sphere. Relevantly, this encompasses a person’s right to establish and develop meaningful social relations, and may also incorporate a right to work in some circumstances (to the extent that work is necessary to establish and develop social relations).

The Bill promotes the right to privacy by strengthening the WWC scheme, the purpose of which is to protect the right of children to bodily integrity, an aspect of the right to privacy. The Bill also includes reforms which may limit the right to privacy, however, to the extent that any rights are limited, those limitations are reasonable and justified.

Prohibiting certain individuals from working with children pending assessment or re-assessment

Currently most applicants for a WWC check can work with children while their application is assessed, even if the Secretary proposes to refuse to give a WWC clearance on the basis of any charge, conviction or finding of guilt for an offence (except for serious sexual, violent or drug offences captured in clause 2 of Schedule 5 of the Act) or on the basis of disciplinary or regulatory findings.

Clause 12 of the Bill will introduce amendments that will make it an offence for a WWC applicant to work with children while waiting for a final outcome of an application if the Secretary proposes to refuse to give the person a WWC clearance. It will prevent an individual from working with children while waiting for the outcome of an application in a much broader range of circumstances, including where the Secretary is made aware of a relevant charge, conviction, finding of guilt or disciplinary or regulatory finding.

Clauses 13 and 14 will also make it an offence to engage another person in child-related work, or offer the services of another person for child-related work in these broader range of circumstances. These provisions engage the right to privacy, to the extent that it includes a right to work, as it will prevent a wider range of individuals from working or volunteering with children while waiting the outcome of the Secretary’s decision.

Clause 8 of the Bill also introduces a requirement for the Secretary to suspend a person’s WWC clearance if the Secretary proposes to revoke the person’s clearance because they have become aware that the individual has been charged with, convicted or found guilty of, a relevant offence or has become subject to a relevant disciplinary or regulatory finding. Currently, the Secretary can only suspend a WWC clearance before a re-assessment has been carried out in limited circumstances: if the person has become subject to reporting obligations under the Sex Offenders Registration Act 2004 or a supervision or detention order; if the person has been charged with, or convicted or found guilty of, an offence specified in clause 2 of Schedule 5 to the Act; or the person has been given a WWC exclusion in another jurisdiction. A person who has their WWC clearance suspended is taken to not hold a WWC clearance for the period of the suspension. This amendment engages the right to privacy, as it will prohibit a person from engaging in work with children pending the completion of a re-assessment by the Secretary.

Aboriginal people are particularly at risk of being impacted and receiving a WWC suspension on the basis of having a criminal history as an overrepresented cohort in the justice system. This may also potentially deter Aboriginal people from applying for a WWC check due to confusion about the consequences of them having a criminal record. This can be mitigated by development of frameworks to guide decision making under the suspension power, which could include reference to contextual factors unique to First Nations peoples and other vulnerable groups to inform decision-making.

I do not consider that these amendments limit the right to privacy as they are lawful and not arbitrary. The interference will be lawful as it is authorised under legislation. The interference is not arbitrary, and any limitation is reasonable and justified as it seeks to minimise the risk of a person commencing or continuing to work with children while their application is being assessed or their eligibility to hold a WWC clearance is re-assessed in circumstances where the Secretary has proposed to refuse the application or revoke the clearance, and will therefore help protect children from harm. The Secretary can reinstate a person’s WWC clearance after they have been issued a suspension in particular circumstances, for example, if the charge has been withdrawn or dismissed by a court or the person is acquitted of the offence by a court, or if a disciplinary or regulatory finding is quashed or set aside.

The Bill seeks to further protect children, which is a group with a heightened vulnerability to exploitative conduct which can in its nature be violent, sexual, abusive and neglectful. Screening is necessary to reduce the risk posed by persons who may harm children. While the Bill, and the Act more broadly, cannot entirely eliminate risk, clauses 8, 12, 13 and 14 provide a protective mechanism for preventing people who have been identified with criminal charges, criminal history or disciplinary or regulatory findings that indicate they should not be allowed to work with children from doing so until their eligibility to hold a WWC clearance is assessed.

Power to cancel WWC clearance if false and misleading information is provided on application

Currently there is no express power to cancel a WWC clearance where a WWC check application has been made in breach of, or contrary to, a provision of the Act, and a WWC clearance has been granted as a result.

Clause 9 of the Bill provides the Secretary with the power to cancel a WWC clearance if the person should not have been issued a clearance at the time of their initial or further application. This may occur, for example, where a person provided false or misleading information in relation to their application. Clause 18 applies this power retrospectively, so the Secretary will be able to cancel a WWC clearance that should not have issued regardless of whether the relevant application or re-assessment occurred prior commencement of the Bill.

These clauses may engage the right to privacy, to the extent that it includes a right to work, as it will prevent these individuals from continuing to work with children, which may require them to leave their existing workplace, in circumstances where they had relied on the WWC clearance being granted.

However, I do not consider that these amendments limit the right to privacy as they are lawful and not arbitrary. The interference will be lawful as it is authorised under legislation. Further, the interference is not arbitrary, as it has the important purpose of protecting children from harm by cancelling WWC checks that should not have been issued. This power is intended to act as a safety net in exceptional circumstances, such as where a WWC clearance has been given based on information that is false or misleading and the WWC clearance may not have been given if the information available to the Secretary was correct.

Additionally, clause 9 of the Bill requires the Secretary, in the case that a WWC clearance is cancelled on the basis of false or misleading information, to give to the person the reasons for the cancellation, inform the person that they may apply for a WWC check and explain how that application can be made. To the extent that these laws may limit the right to privacy, I consider that any limitation is reasonable and justified in accordance with section 7(2) of the Charter.

Recognition of inter-jurisdictional WWC exclusions

Currently the Act provides for consideration of interstate WWC exclusions or equivalent notices through the WWC check application and re-assessment provisions. A person who receives a WWC exclusion in another jurisdiction will either be a category A or category B application or reassessment which can result in the giving of a WWC exclusion under the Act. However, in some cases, a person who has been issued an interstate WWC exclusion can be issued a WWC clearance in Victoria.

Clause 16 of the Bill amends the Act to provide that a person who is excluded from child-related work under a corresponding working with children law is prohibited from applying for a WWC check under the Act. Additionally, clauses 4 and 6 categorise an interstate WWC exclusion as a category A application and re-assessment and clauses 5 and 7 repeal the previous category B application and re-assessment provisions. These clauses together mean that a person who is excluded from child-related work under a corresponding working with children law will be excluded from child-related work under the Act. Clause 18 also introduces amendments to allow the Secretary to re-assess any previous WWC clearances that were the result of interstate exclusions from child-related work, and provides that once these amendments commence, the person is to be assessed under the new requirements.

These amendments engage the right to privacy, to the extent that it includes a right to work, as it will prevent people who have a WWC exclusion issued in another jurisdiction from obtaining a WWC clearance in Victoria. Without a clearance, a person will be unable to work or volunteer in certain positions which involve contact with children. Further, they will not be able to continue in child-related work where an existing WWC clearance is revoked. These provisions may have significant consequences for the person, as it may mean they are unable to pursue their choice of work, may have to leave their existing workplace, or cannot participate in certain volunteer activities.

However, I do not consider that these amendments limit the right to privacy as they are lawful and not arbitrary. The interference will be lawful as it is authorised under legislation. Further, the interference is not arbitrary, as it serves the important purpose of protecting children, who have a heightened vulnerability to harmful conduct. Additionally, through operation of the Act more broadly, if such a person was to have their interstate WWC exclusion lifted, they would be able to apply for a WWC check under section 77(2)(c) of the Act. To the extent that these laws may limit the right to privacy, I consider that any limitation is reasonable and justified in accordance with section 7(2) of the Charter.

Protection of families and children

Section 17 of the Charter provides that families are entitled to be protected by society and the State, and that every child has the right, without discrimination, to such protection as is in the child’s best interests and is needed by them by reason of being a child. This right recognises the special vulnerability of children because of their age and immaturity, conferring additional rights on them.

The Bill promotes the rights of the child by strengthening the operation of the WWC check, which is an important safeguarding tool that assists in protecting children from sexual and physical harm by screening people who work with or care for children.

Right to a fair hearing

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

The concept of a ‘civil proceeding’ in section 24 is not limited to judicial decision makers, but may also encompass the decision-making procedures of many types of tribunals, boards and other administrative decision-makers. The right generally encompasses the established common law right of each individual to unimpeded access to the courts of the State, and may be limited if a person faces a procedural barrier to bringing their case before a court.

Prohibiting certain individuals from working with children pending assessment or re-assessment

Clauses 8 and 12 of the Bill may engage the right to a fair hearing as it does not provide an avenue for appeal for the amendments which prohibit a broader range of individuals from working with children while waiting for a final outcome of their WWC check application or a re-assessment of their WWC clearance in cases where the Secretary proposes to refuse a WWC clearance or where the Secretary suspends a person’s WWC clearance if the Secretary proposes to revoke the clearance.

However, I do not consider that the amendments limit the right to a fair hearing, as these prohibitions and suspensions are temporary until the final outcome which will either be a WWC clearance or a WWC exclusion. A person who receives a WWC exclusion in these circumstances can appeal that decision to the Victorian Civil and Administrative Tribunal (VCAT).

Recognition of inter-jurisdictional WWC exclusions

Clauses 10 and 11 of the Bill may limit the right to a fair hearing as it provides that a person who has been excluded from a WWC check in another jurisdiction will not have the right to apply to VCAT for a review of this decision. Instead, the person will only be able to appeal the decision in the jurisdiction where the original exclusion was decided. Inconsistent offence categorisation across jurisdictions may also result in different appeal rights for persons excluded in another jurisdiction and those initially excluded in Victoria, even where the offence or disciplinary or regulatory finding may be identical. Clause 18 of the Bill applies this restriction retrospectively, so a person who has been excluded from a WWC check in another jurisdiction prior to the commencement of the Bill will not be able to apply to VCAT for a review of the Secretary’s decision to issue an exclusion on this basis.

To the extent that this reform may limit the right to a fair hearing, I consider that any limitation is reasonable and justified in accordance with section 7(2) of the Charter. The purpose of this amendment to promote consistency across jurisdictions by ensuring that individuals who are excluded in one jurisdiction are not able to obtain a WWC check in another jurisdiction. This promotes the integrity of the WWC check system across jurisdictions and in turn, promotes the right of the child to protection from harm. While there are differences in the legal frameworks for WWC checks across jurisdictions, all systems share a common objective: to prevent individuals who pose an unacceptable risk to children from gaining access to child-related employment or volunteer opportunities. It is appropriate for the jurisdiction in which the original decision to exclude is made to consider any avenues for review of that decision. Additionally, if a person who holds an interstate WWC exclusion has that WWC exclusion lifted, they can apply for a WWC check under section ‍77(2)(c) of the Act.

Extending time limits for the laying of charges related to summary offences

Clause 15 of the Bill extends the limitation period for prosecuting the offence of providing false or misleading information in relation to NDIS or WWC checks in section 128 of the Act, including applications or re-assessments, from 12 months to 5 years and 6 months.

This is a summary offence, which generally have a 12-month limitation period. Extending the period for prosecuting this offence to 5 years and 6 months may engage and limit the right to a fair hearing, as it may affect the ability of the accused to respond to the charges and may affect the quality of evidence they can obtain to defend the charges.

However, I consider that any limitation is reasonable and justified under section 7(2) of the Charter. The implications of a person providing false or misleading information in relation to an NDIS check or WWC check can be significant. For example, an individual who provides false information about their international criminal history information may present a serious risk to people accessing the NDIS or children. In addition, it may be that an offence under this section may go unnoticed for a period greater than 12 months. In such circumstances, criminal proceedings cannot be commenced against that person as the limitation period has expired. A longer limitation period is intended to provide a greater deterrent against providing false or misleading information as there is a longer period within which a person could be charged. The period of 5 ‍years and 6 months covers the duration of a clearance for both NDIS checks and WWC checks, as the checks last for a period of 5 years and an individual can apply up to 6 months (for WWC checks) before their current clearance expires.

Rights in criminal proceedings

Section 25(1) of the Charter provides that all persons charged with a criminal offence have the right to the presumption of innocence. The right in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

Prohibiting certain individuals from working with children pending assessment or re-assessment

Clauses 12, 13 and 14 amend sections 121–124 of the Act to make it an offence for a WWC applicant to work with children while waiting for a final outcome of an application if the Secretary proposes to refuse to give the person a WWC clearance and to make it an offence to engage another person in child-related work, or offer the services of another person for child-related work, in these broader range of circumstances.

These clauses may engage the right to presumption of innocence as sections 121–124 provide that a person ‘is not guilty of certain offences’ if certain matters apply.

These provisions create an evidentiary burden on the accused, in that they require the accused to raise evidence of certain matters. However, in doing so, they do not transfer the legal burden. Once the accused has pointed to evidence of those matters, which will generally be within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence.

I do not consider that an evidential onus of the kind in the above provisions limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach. Accordingly, I am satisfied that these provisions are compatible with the right to the presumption of innocence.

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

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.

Recognition of inter-jurisdictional WWC exclusions

This right is engaged by the reforms in the Bill that provide that a person who has been excluded from a WWC check in another jurisdiction will be excluded under the Act. As a result of these amendments individuals may have WWC checks refused, and holders of WWC clearance may have their clearances revoked.

However, in my view the right against double punishment is not limited by the Bill, because the refusal or revocation has a protective purpose, rather than a punitive one. The aim of the provisions is clearly to protect children from harm, rather than to impose a punishment for an offence. As the refusal or revocation is not a punishment, it does not amount to double punishment for the purpose of section 26, and the right is therefore not limited.

Protection against retrospective criminal laws

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

Extending time limits for the laying of charges related to summary offences

Clause 15 of the Bill extends the limitation period for prosecuting the offence of providing false or misleading information in relation to NDIS or WWC checks, including applications or re-assessments, from 12 months to 5 years and 6 months. Clause 18 of the Bill applies this limitation period retrospectively, so it will apply to applications and re-assessments made within 5 years and 6 months prior to the date of commencement of the Bill.

This may limit the protection against retrospective criminal laws as it will mean that a person may face prosecution for this offence more than 12 months after they provided the information, if it was within 5 years and 6 months prior to commencement of the Bill. However, I consider that any limitation is reasonable and justified in accordance with section 7(2) of the Charter as it is for the purpose of promoting the integrity of the worker screening test, which protects children and people who access the NDIS.

The Hon Sonya Kilkenny MP

Attorney-General

Minister for Planning