5
Social regulation
5.1
Introduction
This chapter examines particular issues relating to the following areas of
Victorian regulation:





liquor and gambling regulation (section 5.2)
not-for-profit organisations (NFPs) regulation (section 5.3)
child care and protection laws (section 5.4)
social housing regulation (section 5.5)
anti-discrimination laws (section 5.6).
5.2
Liquor and gambling
The main issues in this regulatory area relate to liquor licensing fees and liquor
control regulation. The issue of charitable gaming was also raised by the Public
Interest Law Clearing House (PILCH) (sub. 11, p. 13).
5.2.1
Liquor licensing fees
Vicsport contended that 16 000 sporting clubs and associations are unfairly
captured in the risk-based categorisation of licensees, imposing unnecessary costs
on these organisations (sub. 9, p. 10). According to Vicsport, many sporting
organisations have reported very large increases in licence fees due to the riskbased licensing system:
Many reported a 700% increase in fees, as clubs, which realistically present a
much lower-risk to other licensee categories, are being lumped-in unfairly with
higher-risk licensed venues. (sub. 9, pp. 10–11)
Moreover, in a submission to the Commission’s inquiry on Victoria’s tourism
industry, the Victoria Tourism Industry Council (VTIC) stated that:
Current legislative setting for liquor licensing fees, which are based on a risk of
alcohol-related harm model, have resulted in fee increases for almost all business
types. In addition the current regulator settings have established a set of punitive
feedback loops within the system that may result in very significant increases in
licence fees. (VTIC 2010, p. 43)
The Department of Justice (DOJ) noted that the risk-based fee structure —
introduced in January 2010 — was ‘to ensure that licensees associated with the
highest risk of alcohol-related harm pay higher licence fees and that licensees, not
SOCIAL REGULATION
91
the Victorian taxpayer, pay the full costs of regulation’ (DOJ 2010a, p. 12).1 This
was subsequently reflected in higher fees for many commercial operators and
NFPs. However, as noted, some representative groups, such as Vicsport, have
argued that the fees are disproportionate to the risks posed by some community
organisations.
Before the new system was introduced, a Regulatory Impact Statement (RIS) was
prepared and was subject to public consultation (DOJ 2009). At the time, the
Commission noted in its assessment letter that, due to data limitations and the
approach taken in the analysis, it was possible that the fees for different liquor
licence categories may not precisely reflect the actual risks imposed by particular
groups of licensees. DOJ had also committed to evaluate the fees within 3–5
years, which would allow further and more comprehensive data on risks and the
effects of the fee structure to be collected and analysed (VCEC 2009a, p. 2).
The Victorian Government announced, in January 2011, that liquor licensing
fees will be more than halved for at least 10 000 small businesses and community
clubs. The base renewal fee will be reduced for the following categories: full club
without gaming machines, restricted club, vignerons, restaurant and café,
renewable limited and Bring Your Own (BYO) permits (O’Brien 2011). In the
light of this development, the Commission considers the risk-based classification
system should be examined further in the context of a broader review of liquor
control regulation.
5.2.2
Liquor control regulation
Dr David Cousins and Mr Rod Overall raised the issue of liquor control
regulation and questioned the merit of some measures taken to address alcohol
abuse and alcohol-related violence:
In liquor, there have been recent knee jerk regulatory responses to social order
problems. These responses have involved making many new regulations, some
of which are unlikely to be of net social benefit. … It is now over one-quarter of
a century since the path breaking Nieuwenhuysen Review set new directions for
regulation of this industry and well past the time when a further public review,
independent of government, should be conducted. (sub. 24, p. 4)
There have been numerous changes to the regulation of liquor outlets in recent
years. In addition to the introduction of risk-based liquor licence fees, other
initiatives have included late-hour entry restrictions, a freeze on issuing late-night
liquor licences, stronger penalties for drunk and disorderly behaviour and for
According to Consumer Affairs Victoria, the liquor licensing system costs about $15 million a year to
regulate, of which only $9.8 million is paid for by the state’s 19 000 licensees. The remaining $5 million is paid
for from state government funds (PLRS 2009, p. 5).
1
92
PRIORITIES FOR REGULATORY REFORM
serving intoxicated patrons, and greater enforcement powers for Victoria Police
and the Director of Liquor Licensing (DOJ 2010a, p. 188; PLRS 2009, p. 2).
The freeze on late-night liquor licences was introduced in 2008 and subsequently
extended to the end of 2011. It applies to the issue of liquor licences to operate
after 1am in the municipalities of Melbourne, Port Phillip, Stonnington and
Yarra (DOJ 2010a, p. 188). It is possible that the freeze on late-night liquor
licences may have the unintended effect of protecting incumbent businesses,
while posing a barrier to new entrants to the industry.
There is a range of views on the current regulatory settings in this area. While
some measures seek to restrict the number of licensed premises, Dr David
Cousins and Mr Rod Overall argued that limitations on the size, rather than on
the number, of outlets would have been more desirable (sub. 24, p. 4). The Chief
Commissioner of Victoria Police recently suggested that a closer look at
regulation is needed (Overland 2011, p. 11).
There may also be scope to strengthen risk-based approaches to licensing. Some
liquor licence conditions are intended to be risk-based. The Director may impose
conditions on liquor licences; for instance, a requirement to have security
cameras fitted that comply with the prescribed standards (s 18B of the Liquor
Control Reform Act 1998 (Vic)). This condition has been applied to ‘high risk’
licensed premises that trade after 1am and have live or amplified music (other
than background music). This definition of high risk licensed premises could be
re-examined as part of a review.2
The Liquor Control Reform Act was enacted in 1998, following a major review
of the previous statute that was triggered by the National Competition Policy
review process (Napthine 1998, p. 452). There have been many amendments
since then. The numerous changes in liquor laws in recent years raise questions
over the coherence, effectiveness and efficiency of the regulatory approach in
this important area. The Commission was told in consultations that major parts
of the legislation need to be modernised.
In these circumstances, the Commission suggests that a comprehensive review of
liquor control legislation is necessary. DOJ should undertake a review of the
Liquor Control Reform Act and related regulations in 2012, examining and
reporting on the:


purpose and objectives of these laws
modes of regulation including licences, permits and other instruments
Operating hours and venue type are among the five risk factors identified in a study on alcohol-related harm
and the operation of licensed premises. However, the study noted that the findings for live and recorded
entertainment venues should be interpreted with caution, and venues that provide sexually explicit
entertainment were not found to be significantly associated with alcohol-related harm (ACG 2009c, pp. 29,
33).
2
SOCIAL REGULATION
93


risk-based approaches to setting licence fees and licence conditions
administration and enforcement including offences and penalties.
The review would consult with relevant stakeholders and publish its findings and
recommendations.
Draft recommendation 5.1
That the Department of Justice review the Liquor Control Reform Act 1998
and related regulations in 2012. The review would examine key aspects of
these laws including:
purpose and objectives
modes of regulation including licences, permits and other instruments
risk-based approaches to setting licence fees and conditions
administration and enforcement including offences and penalties.
The review would consult with relevant stakeholders and publish a report
including findings and recommendations.
Liquor control laws are only one part of the response to addressing alcoholrelated problems in Victoria. Victoria’s Alcohol Action plan contains 35 actions
in the areas of health, community education, liquor licensing and enhanced
enforcement (Victorian Government 2008b). The plan involves a number of
regulators and authorities, who are responsible for different aspects. For
example, local councils are involved in planning, Victoria Police in maintaining
law and order, and Responsible Alcohol Victoria in licensing premises or venues
serving liquor.
Information request
Are there grounds for conducting a broader public inquiry into all key aspects of the regulation
of the liquor industry and the consumption of alcohol in Victoria? If so, please provide
information, evidence, examples and reasons to support your conclusions or suggestions.
5.2.3
Charitable gambling
In its submission to this inquiry, PILCH recommended that the Victorian
Government should work through the Council of Australian Governments
(COAG) towards mutual recognition of NFP licensing standards by mid 2011
including charitable gambling and other regulation (sub. 11, p. 13). The
underlying problem appears to be inconsistency and duplication regarding NFP
regulation across jurisdictions in Australia, which was documented in the
Productivity Commission’s report on the NFP sector (PC 2010a).
94
PRIORITIES FOR REGULATORY REFORM
In Victoria, a number of minor gaming activities can be conducted by declared
community and charitable organisations. To be declared, an organisation must be
conducted in good faith and be established as a NFP organisation. It must also
be a community or charitable organisation, a sporting or recreational club, or an
organisation conducting these activities for the purposes of a political party
(VCGR 2010a). In some cases, the organisation must obtain a minor gaming
permit from the Victorian Commission for Gambling Regulation (VCGR) to
legally conduct the activity. The activities requiring a minor gaming permit
include raffles (where the total prize value exceeds $5000), lucky envelopes, and
fundraising events (casino nights) (VCGR 2010b).
NFP regulation is discussed further in section 5.3.
More generally, gambling reform is on the national agenda. The recently
established COAG Select Council on Gambling Reform is examining the
Productivity Commission report on gambling (COAG Select Council on
Gambling 2010; PC 2010b). In addition, the new Victorian Government
foreshadowed its intention to direct the VCEC to undertake a public inquiry into
the social and economic costs of problem gambling in Victoria (Victorian Liberal
Nationals Coalition 2010, p. 6).
5.3
Not-for-profit organisations
Some concern has been expressed about the lack of progress in implementing
reform regarding NFP organisations, despite numerous reviews and
recommendations. For example, PILCH stated that:
… there has been a frustrating lack of progress. We have ‘review overload’ —
six major Federal government inquiries … and multiple Victorian government
inquiries … (sub. 11, p. 9)
Moreover, PILCH stated that there are significant problems with the overarching
regulatory framework for the NFP sector, arguing that the state-federal
framework does not support simple, ‘one stop shop’ compliance and provides
multiple barriers to growth, accountability and efficiency (sub. 11, p. 1).
5.3.1
Victorian initiatives
Recent reviews of NFP regulation in Victoria have included the Stronger
Community Organisations Project and the State Services Authority’s Review of
Not-For-Profit Regulation (SCOP 2007; SSA 2007). The former Victorian
Government responded to these reports by preparing an action plan which
identified 25 actions to be taken to reform the NFP sector. The actions fall
under five themes:
SOCIAL REGULATION
95
(1) reducing the regulatory burden and streamlining interaction with
government
(2) building the capacity of community organisations
(3) supporting innovation and growth
(4) enhancing the role of NFPs in local community life
(5) recognising community organisations and coordinating effort across
government (Victorian Government 2008a, p. 9).
The former Government established the Office for the Community Sector in
2008, in the Department of Planning and Community Development, to
implement the action plan and coordinate and implement policy priorities
affecting NFPs across government.
While there are perceptions that the implementation of reforms has been slow,
the Commission was told in consultations that progress is being made in Victoria
on several fronts. In relation to the theme of reducing the regulatory burden,
there have been some legislative and other reforms, including:



amendments to the Fundraising Act 1998 (Vic), to clarify some sections of the
Act, increase disclosure for fundraisers and reduce the regulatory burden on
fundraisers
amendments to the Associations Incorporation Act 1981 (Vic) to improve
internal governance arrangements, revise annual reporting requirements and
audit thresholds, and improve grievance and dispute resolution procedures
(among other changes). That said, a number of changes have not yet
commenced operation.
introduction of a Victorian Standard Chart of Accounts, providing a
common approach for collecting and recording financial information (OCS
2010; OCS 2011a).3
In the Commission’s view, the Office for the Community Sector has a valuable
role in facilitating the implementation of reform in this area, especially in
reducing red tape on NFPs. The Office has also developed a regulatory portal to
provide NFPs ‘with a single-entry point into government, allowing easier access
to regulation and compliance information and support’ (OCS 2011b). Regulatory
portals are discussed further in chapter 7.
The Office for the Community Sector was originally established to operate for
three years. The Commission considers that the Government should renew the
Office’s responsibilities and term for a further three years.
According to the Department of Planning and Community Development’s annual report, reforms to the
Associations Incorporation Act and Fundraising Act are expected to deliver savings of over $10 million to the
NFP sector and the Victorian Standard Chart of Accounts will contribute to savings of up to $1 million a year
(DPCD 2010, p. 50).
3
96
PRIORITIES FOR REGULATORY REFORM
5.3.2
National reviews and reform
There have been several Commonwealth inquiries into the NFP sector in recent
years, including the Senate Standing Committee on Economics inquiry into
disclosure regimes for charities and NFPs (SSCE 2008) and the Productivity
Commission report on NFPs (box 5.1). Other national initiatives include:
COAG processes to develop nationally consistent fundraising regulation and
accounting terms used in funding arrangements for NFPs
a new Office for the Not-For-Profit Sector in the Department of the Prime
Minister and Cabinet, supported by a Not-For-Profit Sector Reform Council
comprising representatives from across the NFP sector
consultation on a national NFP regulator (COAG 2011c; DPMC 2010;
Commonwealth Government 2011).



Box 5.1
Productivity Commission report on NFPs in
Australia
The Productivity Commission found that:




the current regulatory framework is complex, lacks coherence and transparency,
and is costly to NFPs. A national registrar for NFPs should be established to
consolidate Commonwealth regulation.
legislative proposals to reduce reporting burdens on companies limited by
guarantee are needed for more NFPs to adopt Commonwealth incorporation. A
separate chapter in the Corporations Act 2001 (Cth) dealing with NFP companies
should be introduced, as should rules on the disposal of assets. More generally,
states and territories should harmonise incorporated associations legislation in
these and other key areas.
harmonisation of fundraising legislation through the adoption of a model act
should be an early priority for governments
NFPs’ revenue sources should be expanded by the promotion and support of
payroll giving arrangements.
Source: PC 2010a.
In addition to driving state-based reforms, the Office for the Community Sector
could assess and promote — as appropriate — other possible reforms to the
NFP sector, including the recommendations of recent national inquiries. The
recommendations of these inquiries should not be accepted without due
consideration of the implications for Victoria. A guiding principle for assessing
any proposed reforms is that they should deliver a net benefit to the state. The
Office for the Community Sector should, as appropriate, liaise with the
Commonwealth Office for the Not-For-Profit Sector.
SOCIAL REGULATION
97
While national consistency is an important longer-term objective, it needs to be
recognised that most NFPs in Victoria do not operate in multiple jurisdictions. 4
The Commission considers that the Office for the Community Sector should
advise the Victorian Government on national consistency issues regarding NFP
regulation (including fundraising regulation) for COAG forums. The COAG
process presents an opportunity for Victoria to influence the development of
best practice regulation in this area; for example, reform of the Associations
Incorporation Act may serve as a model for other jurisdictions.
The Office for the Community Sector should also engage in the scoping study
for a national NFP regulator.
Draft recommendation 5.2
That the Victorian Government renew the Office for the Community
Sector’s responsibility for implementing reforms to reduce the regulatory
burden on not-for-profit (NFP) organisations in Victoria for a further three
years. The Office’s responsibility should be extended to include:
assessing and promoting — as appropriate — other proposed reforms to
the NFP sector, including the recommendations of recent national
inquiries
advise the Government on national consistency issues regarding NFP
regulation (including fundraising regulation) for Council of Australian
Government forums
engage in the consultation process as part of the scoping study for a
national NFP regulator.
The Office should, as appropriate, liaise with the Commonwealth Office for
the Not-For-Profit Sector.
5.4
Child care and protection
Child care regulation in Victoria is jointly administered by the Commonwealth
and state governments. The Commonwealth family assistance law (A New Tax
System (Family Assistance) (Administration) Act 1999 and A New Tax System (Family
Assistance) Act 1999) specifies conditions that must be met if child care services
are to receive financial assistance from the Commonwealth Government. It is a
condition of initial and continued approval for child care benefit purposes that
child care services and carers meet Child Care Quality Assurance (CCQA)
standards. The CCQA systems are administered on behalf of the Commonwealth
Government by the National Childcare Accreditation Council (NCAC). CCQA
The perceptions survey conducted by the Wallis Consulting Group estimated, based on a sample of 100
NFPs in Victoria, that about two-thirds of NFPs operate only in Victoria (Wallis 2011b).
4
98
PRIORITIES FOR REGULATORY REFORM
is designed to complement and build on the state licensing systems described in
the Children’s Services Act 1996 (Vic) and Children’s Services Regulations 2009 (Vic).
These state licensing systems cover the requirements that must be met before a
child care service can commence operations and include staff/child ratios and
space provision. Compliance with the regulations is monitored by the Victorian
Government and a service can be closed if any of the requirements are not met.
Both the NCAC and state licensing authorities regularly inspect children’s
services providers; the NCAC to ensure compliance with the CCQA systems,
and the state to ensure compliance with licensing obligations. Because these
systems and inspections are independent, a children’s services provider can
potentially receive multiple inspections in a short period. This fact, and the
resulting regulatory burden, was noted in previous reviews including the
Productivity Commission’s 2009 Annual Review of Regulatory Burdens (PC 2009b).
5.4.1
Consistency in assessment (regulation of sleep
supervision)
In the Productivity Commission’s review of regulatory burdens (PC 2009b),
several children’s services providers raised the issue of inconsistent application of
child care quality assurance systems and regulations, particularly in sleep
equipment provision and supervision. In its submission to the review, Monash
University Family and Child Care noted that:
Individual interpretation of regulations can be an issue when it comes to
implementing appropriate practice. Eg supervision in sleep rooms is an ongoing
battle between DEECD [Department of Education and Early Childhood
Development] representatives and children’s services. Regulations require
adequate supervision of children sleeping. Some DEECD representatives
interpret this as requiring a staff member to sit with sleeping children at all
times. This is not necessarily how children are supervised in the home
environment and creates impractical ratios for centres to maintain, as that staff
member is effectively “off the floor”. (Monash University Family and Child Care
2009, p. 1)
The Children’s Services Act states that all children must be ‘adequately
supervised’. Neither the Act nor the Regulations are more specific regarding
appropriate sleep supervision. DEECD publishes a Practice Note on child
supervision, which is also not specific about appropriate supervision of sleeping
children. The NCAC-produced Quality Improvement and Accreditation System
(QIAS) Quality Practices Guide similarly offers no specific advice,
recommending that ‘sleep procedures and sleep equipment need to take into
account current health and safety advice from recognised health and safety
authorities’ (NCAC 2005, p. 72).
SOCIAL REGULATION
99
The Productivity Commission did not comment specifically on sleep supervision
in its assessment, stating only that:
It is important that individual state regulators aim to achieve a high level of
consistency in their enforcement of state regulations, but it is beyond the scope
of this report to discuss the extent of inconsistency in enforcement within any
individual state or territory. (PC 2009b, p. 125)
The VCEC has insufficient information to assess the pervasiveness of this issue
and invites comments about the nature of sleep supervision regulation and
inspection in Victoria. If this problem proves significant, a potential solution
could lie in DEECD including in their supervision practice note a specific
description of supervision of sleeping children that would meet requirements.
This clarification would enable children’s services providers certainty in their
practice and reduce the possibility for inconsistent interpretation.
Information request
The Commission invites further comments about the nature of sleep supervision regulation and
inspection in Victoria and, in particular, whether there have been difficulties in interpreting the
regulation.
5.4.2
Children’s services ratios
The Commission’s assessment letter for the Children’s Services Regulations RIS
noted a lack of evidence and evaluation in Australia of the effectiveness of lower
staff/child ratios. The Children’s Services Regulations raised the minimum
standards for staff/child ratios and staff qualifications in children’s services in
Victoria as part of Victoria’s Plan to Improve Outcomes in Early Childhood — a
Victorian proposal under COAG’s national reform agenda. The impact of these
regulations is high, with an expected cost of $166.8 million resulting from the
change to staffing ratios (DEECD 2009a, p. 44).
National standards were being drafted at the same time as Victoria’s Children’s
Services Regulations. However the proposed regulations needed to be made
before the previous regulations sunset in May 2009, which was prior to the
details of the National Quality Framework standards being known. The national
standards were subsequently set and will be implemented from 2012–2016. An
inconsistency between these standards and the Children’s Services Regulations is
in the area of staff/child ratios in long day care and preschool for children aged
25–35 months (table 5.1). The national standards incorporate this inconsistency
by stipulating that the ratio for 25–35 month olds will remain 1:4 in Victoria.
The higher staff/child ratio for 25–35 month olds in Victoria would contribute
to higher costs but it is difficult to apportion a dollar figure because the
Regulations also incorporated other changed staffing ratios.
100
PRIORITIES FOR REGULATORY REFORM
Table 5.1
Children’s services ratios
Victorian staff/child ratioa
National staff/child ratiob
0–24
1:4
1:4
25–35
1:4
1:5
Age (months)
a Required under Children’s Services Regulations 2009. b Required by National Quality Framework
Standards.
Sources: DEECD 2009a, p. 40; COAG 2009, p. 19.
The DEECD Children’s Services Regulations 2009: Feedback Report indicated that a
majority of survey respondents (85 per cent) felt that ratios were appropriate or
should be increased, with only 15 per cent feeling the Regulations should require
fewer staff:
Of the 215 people with a primary interest in a long day care centre who
responded to the question about changing ratios to 1:4 for children under three
in standard licensed services, 15 per cent thought that the ratios should require
fewer staff, 67 per cent felt the proposals were appropriate, and 18 per cent felt
that the regulations should require more staff. (DEECD 2009b, p. 14)
Given the lack of data on the effectiveness of higher staff/child ratios, it is
difficult to determine the net benefit of these changes. The Feedback Report
indicated that a majority of respondents were happy with the changes. In the
absence of any views to the contrary, the Commission does not intend to pursue
this matter.
Information request
Do stakeholders perceive that the higher staff/child ratios for children’s services in Victoria
impose a net benefit or a net cost? What evidence is available?
5.4.3
Overlap of police checks and working with children
checks
The concurrent police check and working with children (WWC) check regimes
were identified by Vicsport ‘as examples of regulation designed to meet the same
ends through different means’ (sub. 9, p. 14).
DOJ states that a WWC check involves:


a national police records check
a review of findings by specified professional disciplinary bodies (currently
the Victorian Institute of Teaching and the out of home carers Suitability
Panel. Other professional bodies will be included in the future.)
SOCIAL REGULATION
101

consideration of any relevant determination by the Victorian Civil and
Administrative Tribunal under the Health Professions Registration Act 2005
[Vic]. (DOJ 2010b)
The WWC check and police check differ in a range of ways summarised by DOJ:
Not all offences are of concern to the WWC check. The WWC check
primarily considers serious sexual, violent and drug offences, but may also
consider other relevant offences.

While a standard police records check gives information about a person’s
past criminal record, the WWC check conducts ongoing monitoring of all
cardholders. This means DOJ is notified of new offences and charges made
against cardholders. The department will re-assess a person’s eligibility to
hold a WWC check card if the new charges, convictions or findings are
relevant to the check.

A new WWC check is not required when a person changes employer or
volunteer organisation unless the person moves from a volunteer to a paid
position. The WWC check is valid for five years, unless revoked, suspended
or surrendered during that time. However, when a person changes place of
child-related employment or volunteer work, the person must inform DOJ
of the organisation’s details, in writing, within 21 days of the change.

The WWC check also considers relevant determinations of the Victorian
Civil and Administrative Tribunal under the Health Professions Registration
Act and findings made against a person by a prescribed professional
disciplinary body. Currently, these are the Victorian Institute of Teaching
and the out of home carers Suitability Panel (DOJ 2010c).
In addition, police checks (due to the Spent Conviction Scheme) cannot include
offences more than ten years old. However, WWC checks can include these
offences and others not included in a police check, but considered relevant to
whether or not someone is fit to work with children, including:






102
convictions — whether or not they are considered spent or were committed
by a juvenile
apprehended violence orders and other orders, prohibitions or reporting
obligations
charges (that is, where a conviction has not been recorded because, for
example, a proceeding has not been heard or finalised by a court, or where
charges have been dismissed or withdrawn)
any relevant allegations or police investigations involving the individual
relevant employment proceedings and disciplinary information from
professional organisations (for example, organisations associated with
teachers, childcare service providers, foster carers, and health practitioners)
(National Child Protection Clearinghouse 2011).
PRIORITIES FOR REGULATORY REFORM
Many organisations require police checks for employees and volunteers to satisfy
licensing and/or other requirements. If those employees and volunteers work
with children they will also be required to obtain a WWC check under the
Working with Children Act 2005 (Vic). Vicsport contends that ‘it is quite obviously
a superfluous situation, which creates an unfair and unrealistic burden on the
applicant’ (sub. 9, p. 16).
Given that a full national police check is conducted as part of a WWC check,
combining the two check regimes would seem to have merit. However, the
differing validity period of the two checks makes this option problematic. While
WWC checks are issued for five years and are monitored to ensure ongoing
validity, a police check is a point-in-time summary valid only on the day of issue.
An integrated system would, therefore, need to facilitate a single application
process that allows the applicant to nominate the level of check and then
separate out for ongoing monitoring those applicants and details relevant to
working with children.
The RIS for the proposed Working with Children Regulations estimated that:
The total discounted cost of implementing and operating the WWC check
programme for employees and volunteers over the 10-year regulatory period
2006/07 to 2015/16 has been estimated to be $76.73 million. (PWC 2006, p. 35)
Also identified in relation to the WWC check system was the issue of lack of
cross-jurisdiction coordination. The Bus Association Victoria and Victorian Taxi
Association’s submission highlighted that both New South Wales and Victoria
have WWC checks, but that they are not uniform and neither check is recognised
as equivalent by the other state. This means that:
… operators of bus, coach and taxi businesses in border towns like Mildura,
Shepparton, Cobram, Echuca, Wodonga, Swan Hill, Yarrawonga and Rutherglen
who need to use their vehicles across the border, incur additional costs and
operational burdens in order to operate in a compliant manner with both State’s
requirements. (sub. 14, p. 9)
The current situation for WWC checks across state boundaries is summarised by
the National Child Protection Clearinghouse:
There is no single national framework setting out the requirements for obtaining
Working with Children Checks or Police Checks. Each state and territory has
their own procedures and it is necessary to fulfil the requirements in the
jurisdiction(s) in which you are working. (National Child Protection
Clearinghouse 2011)
Having concurrent systems to process similar information operating in most
states would seem duplicative. Some effort was made to address this issue in
2007 when COAG agreed in-principle to:
SOCIAL REGULATION
103
… a framework to improve access to a consistent and expanded range of interjurisdictional criminal history information by child related employment screening
schemes to improve the safety and protection of children. Further work is to be
done to develop an implementation plan (due to be considered by COAG in
February 2008), identifying potential costs, financial arrangements, key stages
and transitional arrangements to implement the framework across Australia.
(COAG 2007a, p. 9)
The Productivity Commission also recommended the investigation of a national
system in its report on the Contribution of the Not for Profit Sector in 2010:
… Australian governments should explore the feasibility of developing a
consistent national system allowing portability across states and territories of
police checks and the exchange of information on people deemed unsuitable for
working with vulnerable people, especially children. (PC 2010a, p. 259)
There is now a National Framework for Protecting Australia’s Children which
discusses information sharing across states. Its focus is, appropriately, on child
protection and the sharing of criminal histories across jurisdictions, but does
appear to have considered reducing regulatory burdens. In particular, there does
not appear to have been any discussion of establishing one nationally applicable
WWC check system and Victoria is the only state not to participate in the
information sharing scheme.
The nature and content of schemes among states does differ making the
establishment of a national system more difficult. Both New South Wales and
South Australia have WWC checks that are employer-driven, ‘point-in-time’
systems involving background checks of employees. Queensland, Northern
Territory, Western Australia and Victoria all have systems involving ongoing
monitoring valid for between two and five years. Tasmania and the Australian
Capital Territory currently have no formal screening system.
Information request
What are the options for combining Working with Children checks and police checks in a lowcost manner? How do the benefits and costs of a national system for Working with Children
checks compare?
5.5
Social housing
According to the Tenants Union of Victoria (TUV), the regulation of social
housing in Victoria is overly focused on the financial viability and growth of
community housing providers rather than the achievement of housing outcomes.
TUV argued that the regulatory objectives of the Housing Registrar should be
expanded to include objectives such as facilitating the provision of the highest
quality social housing, empowering and protecting tenants, expanding the
104
PRIORITIES FOR REGULATORY REFORM
provision of social housing and allowing for choice of landlord for tenants
(sub. 7, pp. 4–5).
The Housing Registrar, established in 2005 under amendments to the Housing Act
1983 (Vic), registers and regulates rental housing agencies in Victoria. The
regulatory framework aims to strengthen housing agencies’ capacity to attract,
develop and protect capital investment and manage existing housing stock and
tenancies. Although the Registrar’s main objectives reflect a prudential regulatory
role, one of its key objectives is to ‘ensure quality and continuous improvement
in service delivery and outcomes for tenants’ (Housing Registrar 2007, p. 2;
Housing Registrar 2010, pp. 3, 5).
While the objectives of the Housing Registrar are primarily a matter for the
Government, there are other issues that may affect the regulation of social
housing. In a report on access to social housing, the Auditor General found that
the Registrar relies on self reporting by housing associations and undertakes only
limited verification of this information. The report also found that the Registrar
is not separated from the social housing policy and funding functions in the
Department of Human Services (VAGO 2010a, pp. ix–x). Under recent
machinery of government changes, the Registrar has been moved to the
Department of Treasury and Finance (General Order 22 February 2011).
The Commission welcomes views from interested parties on the regulation of
social housing in Victoria and whether it imposes any unnecessary burdens.
Information request
Are there deficiencies in the regulatory approach that gives effect to social housing in Victoria? If
so, please provide information, examples and/or other evidence and reasons for your conclusions.
5.6
Anti-discrimination
The Northern Melbourne Institute of TAFE (NMIT) contended that there is
duplication of anti-discrimination legislation between Victoria and the
Commonwealth with multiple avenues for complaint. NMIT also expressed
concern that matters could be reheard in other courts or tribunals:
Complaints terminated by the Australian Human Rights Commission may
subsequently be heard in either the Federal Court of Australia or the Federal
Magistrates Court.
In Victoria, similar grounds for discrimination are traversed by the Equal
Opportunity Act 2010. Complaints terminated by the Victorian Equal
Opportunity and Human Rights Commission can subsequently be filed with the
Victorian Civil and Administrative Tribunal. (sub. 4, p. 16)
SOCIAL REGULATION
105
Commonwealth legislation prohibits age, disability, race and sex discrimination in
a range of situations each under their own specific Act.5 However, discrimination
on the basis of sexual preference, criminal record, trade union activity, political
opinion, religion or social origin is only prohibited in employment situations at
the Commonwealth level (under the Australian Human Rights Commission Act
1986). The range of activities in which discrimination is prohibited at the
Commonwealth level is also restricted by the Australian Constitution.
In general, Victoria’s Equal Opportunity Act 2010 is broader in coverage than the
various pieces of Commonwealth legislation. The Act prohibits discrimination
on the basis of any of the prescribed attributes in a broader range of activities
including accommodation, clubs, education, employment, goods and services,
land sales and transfers, local government and sport.
While there appears to be some overlap between Victorian and Commonwealth
anti-discrimination laws, the Commonwealth Acts do not purport to displace or
limit the operation of Victoria’s Equal Opportunity Act. Each Commonwealth
Act provides that where complainants have a choice as to jurisdiction (that is,
where they are able to lodge a complaint under Victorian or Commonwealth
law), they can elect whether to make their complaint under one of the
Commonwealth Acts or the Victorian Equal Opportunity Act. Once a
complainant has chosen which jurisdiction to initiate a complaint, they cannot
initiate the same complaint in the alternate jurisdiction.
The avenue to appeal the decisions of administrative or judicial tribunals is
considered to be a characteristic of good processes. Some improvements to
administrative processes in Victoria have been recently implemented. Following
the Gardner Review and reform to the Equal Opportunity Act (Gardner 2008), a
complainant to the Victorian Equal Opportunity and Human Rights
Commission (VEOHRC) can now take their complaint directly to the Victorian
Civil and Administrative Tribunal (VCAT) if they wish. Under the previous
system, a complainant had to lodge their complaint with VEOHRC before it
could be referred to VCAT. In addition, if a settlement has been reached with
VEOHRC, the matter cannot be reopened by making a claim at VCAT
(VEOHRC 2010).
Information request
Is there unnecessary duplication in anti-discrimination legislation and tribunals between
Victoria and the Commonwealth? If so, please provide information, examples, and/or other
evidence to support your views.
Commonwealth legislation includes the Australian Human Rights Commission Act 1986, Disability Discrimination
Act 1992, Sex Discrimination Act 1984, Racial Discrimination Act 1975 and Age Discrimination Act 2004.
5
106
PRIORITIES FOR REGULATORY REFORM
5.7
Summing up
The main findings and recommendations relate to liquor control and NFP
regulation.
In the area of liquor control regulation, there have been numerous changes
in regulation in recent years and public debate over the most appropriate
regulatory responses to address alcohol abuse and alcohol-related harm in
Victoria. In addition, major parts of liquor control legislation are in need of
modernisation. The Commission has recommended a review of liquor
control legislation.

In the area of NFP regulation, the Office for the Community Sector has
been playing a valuable role in facilitating regulatory reform. The
Commission sees merit in renewing the Office’s mandate and expanding it
to include additional activities related to the national regulatory framework
for NFPs.
The Commission has requested further information in relation to a number of
issues raised in this chapter.

SOCIAL REGULATION
107
108
PRIORITIES FOR REGULATORY REFORM