Service Victoria (Transfer of WorkSafe Victoria Functions) Regulations 2021

The Regulations introduce and rely on several defined concepts. A “digital token” is an authority given, granted or issued by WorkSafe Victoria in digital form, accessible through a mobile application maintained for that purpose. The token serves as a digital proof of the relevant licence or permit, replacing or supplementing a physical document, but only for those authorities listed in Schedule 1 item 2 (which covers blasting explosives licences, fireworks licences, explosives driver licences, dangerous goods driver licences, HCDG permits, asbestos removal licences, high risk work licences, interstate high risk work licences, and construction induction cards). The term “mobile application” is defined as a software application designed for use on a personal electronic device such as a mobile phone or a handheld computing device. Internet site is used but not separately defined - it refers to the online portal maintained by Service Victoria. The Regulations identify two categories of transferred function. “Transferred customer service functions” (Schedule 1) are further divided into two items: Item 1 covers receiving and processing the fee payable for an application made by input into an internet site or mobile application for any of the listed licences or permits; Item 2 covers delivering to the applicant a digital token in respect of authorities that were applied for through that same online channel. “Transferred identity verification functions” (Schedule 2, a single item) cover collecting identity information provided with an application and verifying the applicant’s identity for applications made through the online channel, but only for a narrower list: dangerous goods driver licences (new and renewal), asbestos removal licences (new and renewal), high risk work licences (new and renewal), and interstate high risk work licence renewals. Notably, some licences covered by Schedule 1 (e.g. blasting explosives, fireworks, explosives driver, HCDG permits, plant registration, construction induction cards) are not subject to identity verification transfer - those functions remain with WorkSafe. The definitions of each licence type in regulation 4 incorporate by reference the relevant regulatory instrument under occupational health and safety or dangerous goods law. For example, “asbestos removal licence” has the same meaning as in the Occupational Health and Safety Regulations 2017; “blasting explosives licence” means a licence required under regulation 126 of the Dangerous Goods (Explosives) Regulations 2022; “HCDG permit” means a permit under the Dangerous Goods (HCDG) Regulations 2016. This cross referencing means the scope of transferred functions changes if the underlying regulations are amended. The Regulations also rely on the concepts of “service agency” (WorkSafe Victoria) and “Service Victoria CEO” from the parent Act. The transfer is automatic upon commencement of the regulation prescribing the function: the Service Victoria CEO must perform the function from that date, not merely be authorised to do so.

The primary affected parties are individuals and businesses who apply for any of the licences or permits listed in Schedules 1 and 2. These include applicants for blasting explosives licences, fireworks licences, explosives driver licences, dangerous goods driver and vehicle licences, HCDG permits, asbestos removal licences (class A and B), high risk work licences (e.g. for crane operation, scaffolding, rigging), interstate high risk work licence renewals, plant design registrations, and construction induction cards. For those applicants, the Regulations redirect where and how they pay the application fee and, for a subset, how they verify their identity. Instead of dealing directly with WorkSafe Victoria’s administrative systems, they must use the Service Victoria internet site or a mobile application maintained by Service Victoria. The effect is a change in procedural interface; the substantive legal requirements for obtaining the licence remain unchanged. WorkSafe Victoria is the service agency from which functions are transferred. It loses direct control over the fee collection and identity verification steps for online applications, but retains decision making authority over whether to grant or renew a licence. WorkSafe is also the issuer of the digital token, though delivery is handled by Service Victoria. Service Victoria CEO gains a new operational responsibility: to perform the transferred customer service and identity verification functions. This likely requires Service Victoria to maintain adequate systems for handling payments (including integration with a payments provider), maintaining identity verification processes (possibly linking to a government identity verification service), and generating and delivering digital tokens via a mobile application. The Victorian Government, through Service Victoria, assumes the costs of running this platform. The Regulations also indirectly affect employers who need to ensure their workers hold valid licences (e.g. asbestos removalists, crane operators, drivers of dangerous goods). Those employers may need to ensure workers use the online portal correctly. Professional intermediaries who assist with licence applications (e.g. safety consultants, licensing agents) must adapt their processes. The amendment in 2024 extended the list of customer service functions under Schedule 1 by updating references to the new Dangerous Goods (Explosives) Regulations 2022, which came into effect after the original 2021 version. Anyone applying for explosives related licences after May 2024 uses the updated regulatory references.

The Regulations themselves impose no direct duties on private parties. The duties are on the Service Victoria CEO. Regulation 5 provides that a customer service function set out in Schedule 1 is a transferred customer service function, and the Service Victoria CEO must perform it under section 5(5) of the Service Victoria Act 2018. Similarly, regulation 6 provides that the identity verification functions in Schedule 2 are transferred. The parent Act imposes a duty on the Service Victoria CEO to perform transferred functions, but the Regulations are the instrument that makes a function a transferred function. The key duty on Service Victoria is to operate a system that can receive and process fees for the listed applications, verify identity for the narrower set, and deliver digital tokens. There is a duty to maintain the internet site and mobile application for that purpose. For applicants, there is no compulsion to use the online channel. The Regulations only apply to applications made “by input into an Internet site or mobile application maintained for that purpose”. An applicant can presumably still apply by paper or in person through WorkSafe, and in that case the fee payment and identity verification functions are not transferred and remain with WorkSafe. The right of an applicant is to have their fee processed and identity verified if they choose the online channel. The digital token is delivered only for applications made through that channel. The Regulations do not grant a right to a digital token for applications made otherwise. Also, the digital token is a separate authority; the underlying licence is still issued by WorkSafe. The applicant has no right to demand a digital token if the application is not made online. The identity verification function, where transferred, may involve the collection of personal information. The Regulations do not address privacy or data handling - those are dealt with under the parent Act and other laws. The applicant has a right to have their identity information collected and verified only for the purpose of the application, not for broader use. There is no explicit right to a refund if the fee processing fails, but general contract or administrative law would apply. The Regulations impose a duty on the Service Victoria CEO to perform these functions, but no private right of action for failure to perform is created. Enforcement would be through the parent Act’s mechanisms or through the Ombudsman or other oversight.

The Regulations do not themselves create any penalties, offences, or enforcement mechanisms. That is consistent with their character as a transfer instrument. Any non compliance by the Service Victoria CEO in performing the transferred functions would be dealt with under the Service Victoria Act 2018, but the Act does not specify particular penalties for failure to perform a transferred function. One would expect internal government accountability mechanisms, ministerial oversight, or potential administrative law remedies (judicial review) for a failure to process an application. However, the Regulations do not confer any power on WorkSafe Victoria to penalise the Service Victoria CEO. For applicants, the consequence of failing to use the online portal might be delay if they try to use a paper channel that WorkSafe no longer maintains for that function. But the Regulations do not mandate that WorkSafe stop accepting paper applications - they only transfer functions for online applications. In practice, WorkSafe might have ceased its own online systems for these functions, but that is not explicit. The 2024 amendment revoked regulation 7 and Schedule 3, which had previously prescribed something else; that revocation does not impose penalties. The underlying offences for unlicensed activity (e.g. working without a high risk work licence) remain in the Occupational Health and Safety Act 2004 and regulations. Those offences are not affected. The enforcement of licence conditions remains with WorkSafe inspectors. The only potential enforcement issue is if an applicant submits false identity information through the Service Victoria portal. That would be a matter for the general criminal law (e.g. fraud) or possibly under the parent Act’s provisions dealing with misuse of the Service Victoria system. But the Regulations do not create any specific offence for that. The absence of penalties in this instrument means the compliance burden is effectively an administrative one: the obligation to use a particular portal if you want the convenience of online processing.

The Regulations are made under the Service Victoria Act 2018 and explicitly refer to that Act’s sections 5(5) and 10(5) as the source of the transfer power. They do not amend or override any other legislation. They interact with a web of specific regulatory instruments by cross reference. The definitions in regulation 4 incorporate terms from the Occupational Health and Safety Regulations 2017, the Dangerous Goods (Explosives) Regulations 2022, the Dangerous Goods (Transport by Road or Rail) Regulations 2018, and the Dangerous Goods (HCDG) Regulations 2016. Any amendment to those instruments automatically alters the scope of the transferred functions, because the definitions are dynamic (they refer to “the same meaning as in” the relevant instrument). For example, if the Occupational Health and Safety Regulations 2017 are remade and change the definition of “high risk work licence”, that change flows into these Regulations. Practitioners need to check the latest version of the underlying regulations to know exactly which licences are covered. The Regulations also interact with the parent Act’s provisions on privacy, information sharing, and the use of identity information. The Service Victoria Act 2018 likely contains restrictions on the use of information collected by Service Victoria, and the Regulations do not override those. The digital token concept interacts with the Dangerous Goods Act 1985 and the Occupational Health and Safety Act 2004, which are the substantive laws under which the licences are issued. The delivery of a digital token does not replace the legal requirement to hold a licence; it is merely an alternative proof of that authority. The Regulations do not affect the validity of a licence if the digital token is not delivered. The interaction with the Subordinate Legislation Act 1994 is relevant for the sunset clause: the Regulations expire on 10 March 2031 unless remade. There is no interaction with federal laws such as the Privacy Act 1988 (Cth) unless Service Victoria is an organisation subject to that Act; that depends on Service Victoria’s status. The Regulations do not address that. For the purposes of identity verification, there may be interaction with the Victorian Data Sharing Act 2017 or the Identity Security Act 2019, but the Regulations do not reference them.

The Regulations were originally made on 10 March 2021 and commenced on 15 March 2021 (S.R. No. 12/2021). The only amendment to date is by the Service Victoria (Miscellaneous) Amendment Regulations 2024 (S.R. No. 38/2024), made on 28 May 2024 and commencing 29 May 2024. That amendment made several changes. In regulation 1 (Objectives), paragraph (c) was revoked - that paragraph had previously referred to something else (likely another category of function that is no longer prescribed). Regulation 4 definitions were amended: the definition of “blasting explosives licence” was amended to refer to regulation 126 of the Dangerous Goods (Explosives) Regulations 2022 (replacing an earlier reference to the 2013 regulations); “explosives driver licence” was amended to refer to regulation 109 of the 2022 regulations; “fireworks licence” was amended to refer to regulation 142 of the 2022 regulations. Regulation 7 and Schedule 3 were revoked entirely. That indicates the original instrument had a third category of transferred functions or a separate provision that is no longer operative. The amendment also amended Schedule 1 (transferred customer service functions). The table in Schedule 1 was updated: the references to blasting explosives licences, fireworks licences, and explosives driver licences were changed from the earlier Dangerous Goods (Explosives) Regulations 2013 to the 2022 Regulations. The fee items were updated accordingly. The digital token delivery items in Schedule 1 were also amended to reference the 2022 Regulations for those three licence types. Schedule 2 (identity verification) was not amended by the 2024 amendment - it remains as originally made. The explanatory details in endnote 3 show that the definitions of “asbestos removal licence”, “dangerous goods driver licence”, and “HCDG permit” still refer to earlier versions of the regulations (2017, 2018, and 2016 respectively). Those were not updated in 2024 because the underlying instruments had not been remade. The amendment history reveals a pattern of updating cross references when underlying regulations change. There is a risk that other cross references may become outdated if the Occupational Health and Safety Regulations 2017 are remade (they sunset in 2022 but have been extended). Practitioners should monitor for further amendments.

There is no reported litigation concerning these Regulations. The instrument is administrative in character and has not been challenged in any court or tribunal. No case law is cited in the Regulations or in the endnotes. Given the limited scope of the transfer and the absence of any substantive impact on rights, litigation is unlikely. However, if Service Victoria were to mishandle identity information or if a digital token system failure caused an applicant to miss a licence renewal deadline, there could be administrative law challenges (e.g. for failure to exercise a statutory duty). But such a claim would likely be brought under the parent Act, not these Regulations. The Regulations themselves are not the source of any duty that could be enforced by a private action. There is also potential for dispute about whether a particular licence falls within the definition as cross referenced to an amended regulation. For example, if the Occupational Health and Safety Regulations 2017 are remade and the definition of “construction induction card” changes, the Regulations automatically incorporate that change. A court might need to interpret the dynamic reference. No such case has arisen. The absence of litigation does not indicate that the Regulations are free from risk; it may simply indicate that the subject matter is too narrow or the instrument too obscure to attract challenge. The sunset date of 2031 provides a natural end point, and the regulations will need to be remade then if the transfer is to continue. Any challenge before then would have to overcome the limited standing of applicants to challenge an administrative transfer that does not affect their substantive rights.

Several traps exist for practitioners. First, the Regulations apply only to applications made through the Service Victoria internet site or mobile application. An applicant who submits a paper application or applies in person at WorkSafe may not have their fee processed by Service Victoria and may not receive a digital token. There is no requirement for WorkSafe to maintain a separate online system for these functions after the transfer - WorkSafe might have decommissioned its own online portal for these licences. Therefore, the practical effect may be that online applications are only possible through Service Victoria. But the Regulations do not mandate that; an applicant could attempt to use WorkSafe’s old system, but it might not be maintained. This creates confusion about which channel is accepted. Second, the identity verification function is transferred only for a subset of applications listed in Schedule 2. Applicants for blasting explosives, fireworks, explosives driver licences, dangerous goods vehicle licences, HCDG permits, plant design registration, and construction induction cards do not have their identity verified by Service Victoria under these Regulations. Their identity verification remains with WorkSafe even if they apply online. So for those licences, the online application process for fee payment is split from the identity verification process, which may cause duplication or confusion. Third, the digital token is not issued for all licences. Schedule 1 item 2 lists which authorities receive a digital token. Notably, dangerous goods vehicle licences and plant design registrations are absent from item 2, so no digital token is delivered for them even though the fee is processed by Service Victoria. Applicants for those items will receive a paper licence or another form of authority from WorkSafe. Fourth, the definitions rely on terms from other regulations that have sunset dates or are frequently remade. The Occupational Health and Safety Regulations 2017 have been extended but may be replaced. If they are remade with different definitions, the scope of transferred functions changes automatically without a direct amendment to these Regulations - but only if the new regulations use the same defined term. If the new regulations rename “high risk work licence” to “high risk work permit”, the cross reference would fail, and the function would no longer be transferred. Practitioners should check the latest version of the underlying regulations. Fifth, the 2024 amendment revoked regulation 7 and Schedule 3. It is not entirely clear from the text what those provisions formerly covered. However, some other function that was originally transferred (perhaps related to a different WorkSafe function) has been removed. Anyone relying on the original 2021 instrument must use the consolidated version. Sixth, the sunset date of 10 March 2031 means the Regulations will automatically repeal unless remade. Any long term reliance on the Service Victoria portal for these licences should be planned accordingly. Seventh, the Regulations do not address what happens if the Service Victoria system fails or is unavailable. There is no fallback provision requiring WorkSafe to accept paper applications or process fees manually. In a system outage, an applicant may be unable to apply online and may not have an alternative. That is a compliance risk for businesses that need to renew licences promptly. Eighth, the definition of “digital token” includes the phrase “authority given, granted or issued by WorkSafe Victoria in digital form”. This suggests WorkSafe remains the issuer; Service Victoria only delivers the token. The token’s legal status as proof of licence may be unclear if the token is not a direct licence document. The underlying licence still exists separately. An inspector may accept the token as evidence, but the regulations do not mandate that. There is a case for an applicant to ensure they also have a physical licence or a certificate from WorkSafe.

For applicants with a direct liability, compliance is straightforward but requires attention to channel choice. If you are applying for, renewing, or seeking registration for any of the licences or authorities listed in Schedule 1 (blasting explosives, fireworks, explosives driver, dangerous goods driver or vehicle, HCDG permit, asbestos removal, high risk work, interstate high risk work renewal, plant design registration, or construction induction card), and you choose to apply online, you must use the Service Victoria internet site or mobile application. Do not attempt to pay the fee through WorkSafe’s own online system for these applications, as that function has been transferred. For identity verification, if you are applying for a dangerous goods driver licence (new or renewal), an asbestos removal licence (new or renewal), a high risk work licence (new or renewal), or an interstate high risk work licence renewal, and you apply online, you must provide identity information through the Service Victoria portal. Service Victoria will verify your identity. For other licences applied online, identity verification remains with WorkSafe - you may need to provide identity documents separately to WorkSafe. Before starting an online application, confirm that the specific licence type appears in Schedule 1 or 2. If you are unsure, the safest approach is to use the Service Victoria online portal for all listed licences, as it will handle fee processing anyway. For identity purposes, follow the portal’s prompts - if it does not ask for identity documents, you may need to contact WorkSafe separately. Keep records of the online application, the payment receipt, and the digital token if issued. The digital token may be needed for evidence of licensing if you are inspected. However, also obtain the underlying licence from WorkSafe (e.g. a printed certificate) if one is issued. For employers, ensure that workers who need licences use the correct portal. If an employee’s licence is due for renewal, plan for the online application process and allow extra time in case of system issues. For consultants and intermediaries, update your procedures to use the Service Victoria portal for fee payments for these licences. Note that the portal may require the applicant themselves to verify identity (it may not accept agent submissions). Check the Service Victoria website for guidance on identity verification. For dangerous goods vehicle licences, note that no digital token is issued - you will need the physical licence from WorkSafe. Similarly, plant design registrations do not get a digital token. For construction induction cards, a digital token is issued under Schedule 1 item 2. The main compliance burden is informational: stay aware of any changes to the underlying regulatory definitions. Monitor the Victorian Government’s legislative website for amendments to the Regulations or the instruments they cross reference. If you have a licence that spans multiple years, check annually that the Regulations still cover your licence type. The sunset in 2031 means the transfer will terminate unless renewed. Plan for that contingency. Lastly, if the Service Victoria system is not functioning, you may need to fall back to a paper application to WorkSafe directly, even though the Regulations do not provide for that. Contact WorkSafe in advance to confirm the alternative process. The Regulations do not create an offence for using the wrong channel, but you risk delay or non processing if you use the incorrect portal.