Disability Service Safeguards Regulations 2020

The regulations centre on several key definitions and mechanisms imported from the principal Act. The first is the "approved code of conduct". Under section 3(1) of the Act, this term is defined by reference to regulations. Regulation 5 prescribes the NDIS Code of Conduct as defined in the National Disability Insurance Scheme Act 2013 (Cth) and the NDIS (Code of Conduct) Rules 2018 (Cth). This means unregistered disability workers in Victoria are bound by the same conduct rules as registered NDIS providers and workers under the Commonwealth scheme. The effect is that Commonwealth policy changes to the NDIS Code automatically flow into Victorian law without separate Victorian amendment. The second concept is "disability service". The Act defines this term but allows regulations to prescribe exempt services. Regulation 5A does so for services provided by registered teachers and registered early childhood teachers, but only when those services are part of the teacher's duties for a school or early childhood service. The exemption also covers a registered teacher or principal supervising or managing another person who provides a disability service, provided that person is also a registered teacher or early childhood teacher. Critically, subregulation (2) clarifies that the exemption does not extend to non-teaching staff who are supervised by a teacher. The example makes explicit that teacher aides and integration aides are not exempt. This creates a bright line: the personal registration of the service provider, not the setting or supervision, determines the exemption. The concept of "protected information" is central to information sharing. The Act restricts disclosure, but the regulations specify entities to which disclosure is permitted. The Australian Health Practitioner Regulation Agency is prescribed for the general disclosure power in section 240(4). For the more specific power to disclose to "relevant entities" under section 241(2), the regulations add the Secretary to the Department of Justice and Community Safety and the Victorian Institute of Teaching. "Interstate health complaints entities" are prescribed under section 275 to facilitate cross-border complaint handling. The seven listed bodies are statutory offices or commissions from each state and territory. This ensures that complaints about disability services that cross state lines can be transferred. "Prescribed offences" under the Worker Screening Act 2020 are the offences in Schedules 1 and 3 of that Act. Schedule 1 contains serious violent and sexual offences; Schedule 3 contains drug offences and other offences relevant to worker screening. These are used in the Act for provisions about when a person must not provide a disability service or when a provider must not engage a person. "Worker screening unit" is defined in section 257(4) of the Act and the regulations prescribe the Social Services Regulator as that body. This unit is responsible for receiving and assessing criminal history reports. The concept of "criminal history report" is given an operational entity by regulation 7A, which designates the Social Services Regulator as the prescribed entity from which a report may be requested under section 256(2)(d). The form for seized items is a straightforward receipt template requiring the authorised officer's name, description of the item, name of person in charge, address, and signatures. It is mandatory under section 231(1) of the Act to use this form when items are seized or samples taken under enforcement powers.

The regulations directly affect several distinct groups. Unregistered disability workers are the primary targets. While registered NDIS providers and workers are already bound by the NDIS Code of Conduct under Commonwealth law, Victoria extends that code to unregistered workers through regulation 5. This means any person who provides a disability service in Victoria and is not registered under the NDIS must comply with the NDIS Code of Conduct or face action under the Victorian Act. That includes workers in state-funded programs, informal carers who are paid, and staff of providers that are not NDIS-registered. Teachers and early childhood teachers are affected by the exemption in regulation 5A. Registered teachers who provide disability-related services as part of their duties in a school or early childhood service are outside the Act's definition of "disability service". This means they are not subject to the code of conduct, worker screening requirements, or other provisions that apply to disability service providers. However, the exemption is personal: if a teacher supervises non-teaching staff such as teacher aides, those aides remain covered. This creates a compliance split within schools. The principal of a school is also affected, as the exemption covers supervision by a principal who is a registered teacher. Non-teaching staff, particularly teacher aides and integration aides, are explicitly covered by the Act (see the example in reg 5A(2)). They must therefore comply with the code of conduct and may need NDIS worker screening if they meet the criteria in the Act. Bodies that receive protected information are affected by the disclosure provisions. The Australian Health Practitioner Regulation Agency, the Secretary to the Department of Justice and Community Safety, and the Victorian Institute of Teaching are prescribed as entities that may receive information that is otherwise restricted. They must handle that information in accordance with the Act and any other applicable privacy laws. Interstate health complaints entities are affected by being listed as bodies to which complaints may be transferred. They are state and territory bodies that will receive Victorian complaints about disability services if the matter touches another jurisdiction. The Social Services Regulator is profoundly affected by regulations 7A and 10: it is both the prescribed entity for criminal history reports and the prescribed worker screening unit. This gives it a central role in assessing the suitability of disability workers. The regulator must thus maintain systems for receiving requests, conducting checks, and managing data. Authorised officers under the Act are affected by the mandatory receipt form in Schedule 1. They must use that form when seizing items or taking samples, and any deviation could render the seizure procedurally invalid. Regulated entities that provide disability services must ensure their workers, other than those exempted, are aware of and comply with the NDIS Code of Conduct.

The regulations impose few standalone duties but rather fill in duties that arise from the principal Act. The most significant duty is on unregistered disability workers to comply with the NDIS Code of Conduct as prescribed. That code requires workers to act with respect, provide competent care, maintain privacy, take complaints seriously, and report concerns. The regulations do not restate these duties; they adopt the Commonwealth instrument by reference. This means a worker must know the content of a federal code that may be updated independently. A right of some importance is the right of a person whose property is seized or from whom a sample is taken to receive a written receipt in the prescribed form (reg 6, Schedule 1). The form requires the authorised officer to identify themselves, describe the item or sample, name the person in charge, and provide the address and date. This provides a basic record that can be used to challenge the lawfulness of the seizure or to seek return of property. The rights of information confidentiality are partially defined by the disclosure provisions. The Act restricts protected information, but the regulations provide for disclosure to prescribed bodies. This creates a right for those bodies to receive information, but not a right for the public to access it. The entities prescribed under regulation 7 (AHPRA, Secretary to the Department of Justice and Community Safety, Victorian Institute of Teaching) have a duty to use that information only for purposes consistent with the Act. There is no explicit right for the person whom the information concerns to be notified of disclosure, though other laws may impose that. The exemption for registered teachers creates a right not to have their services treated as a disability service, but only if they are a registered teacher or registered early childhood teacher. This right is conditional and personal; it does not extend to the school or employer. The regulation of interstate complaints entities gives those entities the right to receive and handle complaints transferred from Victoria under section 275 of the Act. This facilitates cooperative enforcement but also imposes a duty on those interstate bodies to deal with the complaint under their own legislation. For regulated entities that must comply with worker screening, regulations 9 and 10 impose duties indirectly. They define the offences that trigger screening obligations and designate the body (Social Services Regulator) that conducts the screening. This gives regulated entities clarity on which offences to check against and where to send screening applications. The form for seized items (Schedule 1) is mandatory; an authorised officer who fails to use it may breach the Act. This gives the person from whom items are seized a procedural safeguard but also a right to challenge any seizure that does not comply.

The regulations themselves do not create offences or penalties. They are subordinate legislation that prescribes details. The enforcement teeth come from the principal Act, the Disability Service Safeguards Act 2018, which includes offence provisions for breaches of the code of conduct, failure to comply with worker screening requirements, and unauthorised disclosure of protected information. However, the regulations directly affect enforcement in several ways. First, the prescription of the NDIS Code of Conduct in regulation 5 means that breach of that code by an unregistered disability worker becomes a breach of the Victorian Act, with potential penalties. The Act provides for disciplinary action, banning orders, and injunctions. Second, the prescription of offences under the Worker Screening Act 2020 in regulation 9 determines which criminal convictions render a person automatically excluded from providing a disability service or require a provider to not engage them. Sections 119, 121, 131 and 133 of the Act refer to prescribed offences. By referencing Schedules 1 and 3 of the Worker Screening Act, the regulations incorporate a large set of offences: Schedule 1 includes murder, sexual offences, serious assault, and child abuse offences; Schedule 3 includes drug trafficking, stalking, and other relevant offences. Having a conviction for any offence in those schedules triggers mandatory exclusion from disability work in Victoria, subject to the appeal mechanisms in the Act. This is a strict regime: the regulations do not provide for any discretion or individual assessment for those offences; the Act may provide some, but the regulations do not. Third, the designation of the Social Services Regulator as the worker screening unit (reg 10) means that regulator is responsible for conducting checks and issuing screening clearance decisions. Its decisions are enforceable under the Act. Fourth, the prescription of entities for criminal history reports (reg 7A) means that only the Social Services Regulator can be asked for such a report under section 256(2)(d). Other entities cannot be used, which may slow down or limit the screening process. Fifth, the mandatory form for seized items is relevant to enforcement: if an authorised officer seizes evidence without using the prescribed form, that evidence may be inadmissible or the seizure challengeable. The sunset date of 19 May 2030 means that the regulations will automatically expire on that date unless remade. This imposes a timeline on future governments to review and re-enact these provisions. Failure to do so would remove the code of conduct for unregistered workers and the exemption for teachers, among other things, potentially creating a regulatory gap.

The Disability Service Safeguards Regulations 2020 sit in a complex web of Victorian and Commonwealth legislation. The most obvious interaction is with the Disability Service Safeguards Act 2018 itself: the regulations are made under section 286 of that Act and give effect to dozens of provisions that require prescription. Without the regulations, the Act would be incomplete; for example, the definition of "approved code of conduct" would have no content, and the worker screening provisions would not know which offences to check. The regulations explicitly adopt the NDIS Code of Conduct from Commonwealth law, incorporating by reference the National Disability Insurance Scheme Act 2013 (Cth) and the NDIS (Code of Conduct) Rules 2018 (Cth). This means changes to those Commonwealth instruments automatically apply in Victoria without a Victorian amendment process. For example, if the Commonwealth adds a new rule to the code regarding use of restrictive practices, Victorian unregistered workers would be bound immediately. This creates a risk of regulatory creep and gives the Commonwealth de facto control over Victorian conduct standards. The regulations also interact heavily with the Worker Screening Act 2020 (Vic). Regulation 9 prescribes offences from Schedules 1 and 3 of that Act. This means the two Acts are aligned for screening purposes: the same offences that disqualify a person under the Worker Screening Act also trigger exclusions under the Disability Service Safeguards Act. This avoids duplication but also means any amendment to those schedules in the Worker Screening Act will automatically affect the Disability Service Safeguards regime. The Education and Training Reform Act 2006 (Vic) is referenced multiple times. Regulation 5A borrows definitions from that Act: "early childhood service", "early childhood teacher", "principal", "registered early childhood teacher", "registered teacher", "school", and "teacher". This ensures consistency between the disability safeguards regime and the teacher registration system. If the Education and Training Reform Act changes these definitions, the effect on the exemption must be assessed. The Health Practitioner Regulation National Law (as applied in Victoria) is relevant because the Australian Health Practitioner Regulation Agency is prescribed for information sharing (reg 7(1) and (2)(a)). This allows the sharing of protected information between disability safeguard regulators and health practitioner regulators. The Social Services Regulation Act 2021 establishes the Social Services Regulator, which is prescribed in regulations 7A and 10. This means the regulations bridge the disability safeguards regime and the broader social services regulation framework. Interstate laws are directly referenced in regulation 8, which lists specific complaints bodies under the legislation of New South Wales, South Australia, Western Australia, Tasmania, Queensland, the Northern Territory, and the Australian Capital Territory. This creates a formal mechanism for complaint transfer across borders. Finally, the Subordinate Legislation Act 1994 (Vic) governs the making and sunsetting of these regulations, as noted in the endnotes. The regulation will sunset on 19 May 2030 unless re-enacted.

The Disability Service Safeguards Regulations 2020 were originally made on 19 May 2020 and commenced on 1 July 2020, operating under S.R. No. 36/2020. They have been amended three times to date. The first amendment was the Disability Service Safeguards Amendment Regulations 2021, S.R. No. 40/2021, made on 27 April 2021 and commencing 11 May 2021. This amendment inserted references to the Worker Screening Act 2020 into the objective (reg 1(e)), prescribed offences under that Act (new reg 9), and inserted regulation 7A prescribing a body for criminal history reports. The amendment also updated the table of provisions. The second amendment was the Disability Service Safeguards Amendment Regulations 2023, S.R. No. 71/2023, made and commencing on 18 July 2023. This amendment inserted the critical regulation 5A on exempt services for teachers and early childhood teachers. It also amended regulation 5 by substituting a new version that refers to the NDIS Code of Conduct (presumably updating the reference from an earlier version of the Commonwealth rules). The third and most recent amendment is the Disability Service Safeguards Amendment Regulations 2026, S.R. No. 4/2026, made on 3 February 2026 and commencing on 9 February 2026. This amendment further amended regulation 1 by inserting new paragraphs (f) and (g) relating to entities for criminal history reports and bodies for the worker screening unit definition. It amended regulation 7A to replace the prescribed entity for obtaining criminal history reports with the Social Services Regulator. It inserted a new regulation 10 prescribing the Social Services Regulator as the worker screening unit for the purposes of section 257(4) of the Act. The regulations have a sunset date of 19 May 2030, ten years after making. The table of amendments in the endnotes confirms the three amending instruments. This amendment pattern shows a responsive approach: initially focused on core definitions and offences, then adding an emergency teacher exemption in 2023, and finally aligning with the Social Services Regulator in 2026 as that body became operational.

The source text does not mention any litigation directly involving these regulations. As subordinate legislation, they are unlikely to be the subject of standalone court proceedings; rather, they are typically challenged in the context of a dispute about the principal Act. However, several areas of potential litigation can be identified. The exemption for teachers in regulation 5A may be challenged on the basis that it creates arbitrary distinctions. For example, a teacher aide who provides the same service as a registered teacher but is not exempt may argue that the exemption is not rationally connected to the Act's objectives. The boundary between a registered teacher providing a service "as part of the duties of a teacher" and providing a disability service could be litigated. The example makes clear that non-teaching staff are not exempt, but the regulation leaves open what constitutes a "disability service" in a school context outside the exemption. The prescription of the NDIS Code of Conduct by reference may be challenged on administrative law grounds. If the Commonwealth amends the code in a way that is not procedurally fair in a Victorian context, a worker might argue the adoption is ultra vires the Victorian Act. The fact that the regulations incorporate a document that can change without Victorian parliamentary scrutiny may raise issues under the principle against delegation of legislative power. However, the Subordinate Legislation Act 1994 permits incorporation by reference, and the endnotes confirm a table of applied, adopted or incorporated matter was included. The information-sharing provisions in regulation 7 may be the subject of privacy complaints or judicial review if protected information is disclosed to the prescribed bodies without adequate safeguards. While the Act restricts disclosure, the regulations permit it; a person could argue that the Victorian Institute of Teaching, for example, is not a suitable recipient of disability safeguard information. The prescription of offences in regulation 9 could be challenged if a particular offence in Schedule 1 or 3 of the Worker Screening Act is argued to be too remote from risk to persons with disabilities. For instance, a minor drug offence from Schedule 3 might disqualify a worker for life, and the person might argue that the regulation is disproportionate. The designation of the Social Services Regulator as the worker screening unit and as the entity for criminal history reports is recent (2026) and may be tested if that regulator fails to process applications reasonably. The mandatory form for seized items (Schedule 1) could be litigated in criminal or confiscation proceedings if the form was not used or was incomplete. The sunset clause means that as 2030 approaches, there may be litigation about the validity of actions taken after the regulations expire if they are not remade in time.

Several provisions in the regulations contain traps for the unwary. The teacher exemption in regulation 5A is narrowly drafted and its limitations are easily missed. The exemption applies only to services provided by a registered teacher or early childhood teacher in their capacity as a teacher. It does not cover a teacher who provides a disability service outside their teaching duties, such as in a separate after-hours care program or a private therapy practice. The exemption also does not cover the supervision of non-teaching staff. The example explicitly states that teacher aides and integration aides providing a disability service are covered, even if a registered teacher supervises them. This means schools could be liable if they assume that all staff are exempt simply because a teacher is present. The code of conduct adoption in regulation 5 is deceptively simple. It prescribes the NDIS Code of Conduct "within the meaning of the NDIS Act". That definition refers to the NDIS (Code of Conduct) Rules 2018 made under the Commonwealth Act. Those rules have been amended over time and may be further amended. Workers and providers are expected to monitor Commonwealth rule changes, as the Victorian regulations do not provide a separate Victorian code that would be stable. A worker who relies on an outdated version of the code may breach the Act. The prescription of offences in regulation 9 refers to Schedules 1 and 3 of the Worker Screening Act 2020. These schedules are long and include both serious offences (murder, sexual offences) and less obvious ones (certain drug offences, stalking, common assault). A person with a conviction from decades ago may find themselves automatically excluded from providing a disability service, even if the offence is not directly related to their current work. The regulations provide no mechanism for individual assessment or exception; that would have to be found in the principal Act. The interstate health complaints entities prescribed in regulation 8 are all listed by name and the specific Act under which they are established. However, if a state restructures its complaints body (for example, merging it into a new ombudsman), the regulation would be out of step until amended. During any gap, complaints could not be transferred to that jurisdiction, potentially leaving complainants without a remedy. The form for seized items in Schedule 1 requires the signature of the authorised officer and the naming of the person in charge of the seized object or taken sample. If an authorised officer fails to obtain a signature or does not fill out the description adequately, the seizure may be procedurally invalid. There is no deeming provision that substantial compliance is enough. The publication of the regulations with endnotes and other material is informative, but those endnotes do not form part of the statutory rule (see section 36(3) of the Interpretation of Legislation Act 1984). So the explanatory details about applied documents are not legally binding. The sunset date of 19 May 2030 means that if the regulations are not remade before that date, they will expire automatically. This creates a risk of regulatory gap: the code of conduct for unregistered workers would cease to exist on that date, and the teacher exemption would vanish. Operators who have relied on the exemption for years would suddenly find themselves non-compliant. The 2026 amendment updating the prescribed entity for criminal history reports to the Social Services Regulator means that any previous practice of requesting reports from other bodies (e.g., the Department of Justice and Community Safety) is now invalid. Entities that continue to request reports from the wrong body may be acting without statutory authority.

Compliance with the Disability Service Safeguards Regulations 2020 requires a thorough understanding of which provisions apply to your organisation or role. For disability service providers that engage unregistered workers, the first step is to ensure all such workers are aware of and have access to the NDIS Code of Conduct as prescribed. Providers should maintain a current copy of the NDIS (Code of Conduct) Rules 2018 and train workers on its requirements. Since the code is incorporated by reference and may be amended, providers must monitor the Commonwealth Federal Register of Legislation for any changes. A compliance calendar should include checks every six months for amendments to the code and to the Worker Screening Act schedules. For registered teachers and early childhood teachers who provide disability-related services, compliance means verifying that you are currently registered under the Education and Training Reform Act 2006. The exemption is personal, so teachers cannot rely on their employer's registration or their supervision of non-teaching staff. If a teacher loses registration, their services immediately become disability services under the Act, and they must comply with the code of conduct and potentially with screening requirements. For schools and early childhood services, the key compliance step is to identify all staff who provide disability-related services and determine whether they are registered teachers or early childhood teachers. Non-teaching staff such as teacher aides, integration aides, learning support assistants, and therapists (unless separately registered as health practitioners) are not exempt. They must be treated as disability workers and must comply with the code of conduct. If they fall within the worker screening provisions of the principal Act, the provider must ensure they undergo screening through the Social Services Regulator (the prescribed worker screening unit under reg 10). For providers who need to obtain criminal history reports for worker screening, the only prescribed entity for requesting such reports is the Social Services Regulator (reg 7A). Providers should update their policies to reflect this and ensure they do not request reports from the Victoria Police or other bodies unless separately authorised. For information handling, if a provider needs to disclose protected information under the Act, they may only do so to the Australian Health Practitioner Regulation Agency under section 240(4), or to AHPRA, the Secretary to the Department of Justice and Community Safety, or the Victorian Institute of Teaching under the relevant entity provisions (reg 7(2)). Any disclosure outside these bodies would be unauthorised. Authorised officers must use the form in Schedule 1 whenever they seize items or take samples. The form must be completed with all fields filled: name of officer, description of item, name of person in charge, address, name of person in charge of premises, signature of officer, and date. The officer should provide a copy to the person in charge immediately. For intra-jurisdictional complaint handling, providers should be aware that complaints can be transferred to the interstate health complaints entities listed in regulation 8. If a complaint involves a provider or worker who also operates in another state, the Victorian regulator may transfer the matter to the relevant interstate body. Lastly, all regulated entities should plan for the sunset date of 19 May 2030. It is prudent to monitor the Victorian Government's subordinate legislation review process and to contribute to any consultation. If the regulations are not remade, the code of conduct, the teacher exemption, and the prescribed entities will all lapse, requiring urgent compliance adjustments.