Victorian Bills Explanatory Memoranda Victorian Bills Explanatory Memoranda[Index] [Search] [Download] [Bill] [Help]
Children Legislation Amendment
(Reportable Conduct) Bill 2016
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill. The main purpose is to
amend the Child Wellbeing and Safety Act 2005 to establish
the reportable conduct scheme. The scheme will require an
allegation of reportable conduct, or employee misconduct
involving a child, committed by an employee within or
connected to certain entities to be reported by that entity to
the Commission for Children and Young People who will
administer the scheme, including by overseeing investigations
or conducting investigations itself. The scheme will require
information to be shared, as necessary, with the Commission
for Children and Young People, regulators, Victoria Police, the
head of an entity, the Secretary to the Department of Justice and
Regulation (for the purpose of assessing or reassessing whether
an employee may hold a working with children check) and any
other prescribed person or body.
The Bill also makes consequential and other amendments to the
Commission for Children and Young People Act 2012, the
Working with Children Act 2005, the Education and Training
Reform Act 2006, the Children, Youth and Families Act 2005,
the Disability Act 2006 and the Ombudsman Act 1973.
Clause 2 is the commencement provision. Subclause (1) provides that
Part 1 (Preliminary) and section 17 come into operation the day
after the Bill receives Royal Assent. Section 17 makes statute
law revision amendments to the Education and Training
581294 1 BILL LA INTRODUCTION 6/12/2016
Reform Act 2006 and Children, Youth and Families Act 2005.
Subclause (2) provides that, subject to subclause (3), the Bill
comes into operation on a day or days to be proclaimed.
Subclause (3) provides that if a provision of the Bill does not
come into operation before 1 September 2017, it comes into
operation on that day.
Clause 3 provides that in the Bill, Principal Act means the Child
Wellbeing and Safety Act 2005.
Part 2--Amendment of the Child Wellbeing and Safety Act 2005
Clause 4 amends the purposes in section 1 of the Principal Act by inserting
a new paragraph (fa). Paragraph (fa) provides that a purpose of
the Principal Act is to provide a scheme for the reporting to the
Commission for Children and Young People of allegations of
reportable conduct or misconduct that may involve reportable
conduct committed by employees within or connected to certain
entities, and the oversight by the Commission of investigations of
those allegations and the administration of the reportable conduct
scheme.
Clause 5 inserts new definitions into section 3(1) of the Principal Act.
Key definitions are--
employee is defined broadly. The broad definition ensures the
reportable conduct scheme applies to people who are 18 years
or older who may pose a risk to children regardless of the legal
status of the person that is alleged to have committed the
conduct.
In an entity to which the reportable conduct scheme applies,
an employee will be a person who is employed or engaged by
the entity, whether or not the person is employed for activities
relating to children or engaged to provide services to children.
This broad definition is intended to capture all employees,
volunteers, contractors, office holders and officers of entities,
along with other persons engaged by entities, irrespective of their
role or whether they have direct care of, supervision or control
over children.
If the entity is a religious body, an employee will also be a person
who is a minister of religion, a religious leader, an officer of the
entity, or one of the above employees.
2
On and after a prescribed date, the definition of employee
also includes a foster carer or a person who engages in child
related work, if the entity has placed a child in their care, and
a permanent care order has not been made for the child placed
in their care, or a permanent care order has been made and a
reportable allegation was made before the permanent care order
was in force. Section 9(6) of the Working with Children
Act 2005 when amended by the Working with Children
Amendment Bill 2016 will set out the circumstances in which
a person is engaged in child-related.
This will ensure that foster care and kinship care arrangements
fall within scope, up until the point when a permanent care order
in respect of the child in question is made.
entity to which the reportable conduct scheme applies is an
entity that is listed in new Schedule 3, 4 or 5, or that is or is of a
class that is listed in the regulations.
The entities listed in new Schedule 3 will be subject to the
obligations under the reportable conduct scheme from the day
the Bill commences. These are out of home care service
providers, registered schools, other secondary education
providers, disability service providers that provide residential
services for children with a disability, mental health service
providers that provide in-patient beds, government departments
and applicable entities that receive State funding to provide child
protection services, in-patient beds for drug or alcohol treatment,
or overnight beds for children as part of housing services or
assistance to homeless persons.
The entities listed in new Schedule 4 will be subject to the
obligations under the reportable conduct scheme from the
day which is 6 months from commencement of the Bill.
These include religious bodies, entities that operate a residential
facility for a boarding school, entities that provide overnight
camps for children (aside from certain youth organisations),
hospitals, disability service providers not referred to in
schedule 3, and other entities providing disability services.
The entities listed in new Schedule 5 will be subject to the
obligations under the reportable conduct scheme from the day
which is 18 months from commencement of the Bill, and include
children's services (such as occasional care providers), approved
providers under the Education and Care Services National Law
3
(Victoria) (such as kindergartens and after hours care services),
and any prescribed applicable entities that are constituted by or
under any Act that has public functions.
head, in relation to an entity to which the reportable conduct
scheme applies, describes the person who is primarily responsible
for an entity's compliance with the reportable conduct scheme.
The term is defined to mean the Chief Executive Officer or
principal officer of the entity; or for a Department, the
Departmental Secretary or the delegate of the Secretary; or a
person or class of person prescribed as the head of an entity.
independent investigator means an independent person or
body with appropriate qualifications, training or experience to
investigate reportable allegations. Under the scheme, a regulator,
entity or the Commission may engage an independent
investigator.
Regulator defines the persons with responsibility for regulating
or funding entities to which the reportable conduct scheme
applies, and persons with responsibility for regulating employees
covered by the scheme. These regulators may play a role in
investigating reportable allegations, for example, in accordance
with their existing legislative functions and responsibilities.
A regulator in relation to an entity to which the reportable
conduct scheme applies means any one of--a government
Department that is responsible for regulating or funding the
entity; the Victorian Registration and Qualifications Authority
if the entity is a specified education entity; and any other body
that regulates or funds the entity and that is prescribed to be a
regulator in respect of the entity.
A regulator in relation to an employee means any one of the
following that is relevant to the employee--the Suitability Panel;
the Australian Health Practitioner Regulation Agency; a National
Health Practitioner Board; the Victorian Institute of Teaching;
and any other body that is prescribed to be a regulator in respect
of the employee.
reportable allegation means any information that leads a person
to form a reasonable belief that an employee has committed
reportable conduct or misconduct that may involve reportable
conduct, whether or not the conduct or misconduct occurred
within the scope of the person's employment. By the operation
of section 39 of the Interpretation of Legislation Act 1984
4
"course of employment" will capture all scenarios contemplated
within the definition of employee.
reportable conduct is the behaviour which the reportable conduct
scheme is intended to address. As defined, reportable conduct
means--
• a sexual offence, committed against, with or in the
presence of, a child, whether or not a criminal
proceeding in relation to the offence has been
commenced or concluded; or
• sexual misconduct, committed against, with or in the
presence of, a child; or
• physical violence committed against, with or in the
presence of, a child. This is not intended to capture
lawful exercise of force, such as lawful physical contact
or behaviour intended to protect a child from immediate
harm, or lawful conduct performed in good faith by a
registered medical practitioner for or in connection with
the provision of medical treatment, including any
medical or surgical procedure; or
• significant neglect of a child; or
• any behaviour that is likely to cause significant
emotional or psychological harm to a child. This is not
intended to capture lawful and reasonable disciplinary
action or lawful conduct performed in good faith by a
registered medical practitioner for or in connection with
the provision of medical treatment, including any
medical or surgical procedure.
reportable conduct scheme is the scheme that is set out in new
Part 5A and applies to entities that exercise care, supervision or
authority over children, whether as part of its primary functions
or otherwise.
sexual misconduct is an inclusive definition and is intended
to capture conduct that falls below the criminal threshold, but
still poses a significant risk to children. Sexual misconduct
includes behaviour, physical contact, speech or other
communication of a sexual nature, including inappropriate
touching, grooming behaviour and voyeurism. It covers overtly
sexual behaviour, all types of communication of a sexual nature
5
(including online or electronic communication) and online
grooming behaviours.
sexual offence means an offence referred to in clause 1 of
Schedule 1 to the Sentencing Act 1991 which covers a number
of serious sexual offences such as the common law offences of
rape, attempted rape and assault with intent to rape, the offence
of publication or transmission of child pornography, offences of
conspiracy to commit, incitement to commit, or attempt to
commit these offences and an equivalent offence committed
outside Victoria.
significant means more than trivial or insignificant, but
need not be as high as serious and need not have a lasting
permanent effect. This relates to the proposed definition of
reportable conduct which will apply to significant emotional
or psychological abuse and significant neglect.
Clause 6 inserts a new Part 5A into the Principal Act which includes
new sections 16A to 16ZN. The new Part establishes the
reportable conduct scheme.
New section 16A inserts a definition for entity in new Part 5A.
In new Part 5A, an entity means an entity to which the reportable
conduct scheme applies.
New section 16B provides for the principles which are to guide
the operation of the reportable conduct scheme, including any
action that is taken, or decision that is made, under the reportable
conduct scheme.
Subclause (1) provides the fundamental principles upon which
the reportable conduct scheme is based. The principles include
that the paramount consideration is the protection of children,
any criminal conduct or suspected criminal conduct should be
reported to Victoria Police, any investigation by Victoria Police
into a reportable allegation involving criminal conduct takes
priority, and that existing regulators of an entity or employee
have specific knowledge of the roles of entities or the
professional responsibilities of the persons they regulate and
play an important role in the investigation of allegations of
reportable conduct (if their functions permit). They also include
that persons and bodies involved in the scheme should share
information and work in collaboration to ensure fair, effective
and timely investigations, and ensure employees being
investigated are afforded natural justice. The ability of the
6
Commission to share information with the Department of Justice
and Regulation for the purposes of the working with children
check after the conclusion of an investigation is also a
fundamental principle.
Subclause (2) provides that the Commission should educate
and guide entities in respect of improving their ability to
identify, report and investigate allegations of reportable conduct.
The Commission should also guide and educate regulators in
promoting compliance by entities with the reportable conduct
scheme. It is intended that this will be a primary function and
focus of the Commission.
New section 16C provides that the reportable conduct scheme
will not apply to an entity that does not exercise care, supervision
or authority over children, whether as part of its primary function
or otherwise. It is intended that the scheme capture only those
entities that work with children, either as part of their primary
functions or otherwise.
New section 16D provides that the Commission for Children
and Young People is the responsible statutory authority for
overseeing, administering and monitoring the reportable conduct
scheme.
New section 16E requires the Commission to liaise with
relevant regulators to avoid unnecessary duplication and to
share information and provide advice and guidance about the
protection of children. New section 16F provides for the
objectives of the oversight and monitoring functions and
powers of the Commission with respect to the reportable
conduct scheme. These are--
• improving the capacity of entities to identify reportable
conduct, and report and investigate reportable
allegations;
• ensuring reportable allegations against an employee of
an entity are properly investigated (either by the entity,
regulator, independent investigator or the Commission
where appropriate);
• protecting children by working with entities, regulators
and other relevant bodies, for example Victoria Police,
so as to prevent reportable conduct from occurring in
entities; and
7
• sharing information with Secretary to the Department
of Justice and Regulation to enable an assessment or
reassessment of an employee's working with children
check.
New section 16G provides for the functions of the Commission
in relation to the reportable conduct scheme. These are to--
• educate and provide advice to entities to assist them in
meeting their obligations under the scheme;
• educate and provide advice to regulators to promote
compliance by their sectors with the scheme;
• oversee the investigation of reportable allegations
(investigations may be conducted by regulators, entities
or independent investigators);
• investigate reportable allegations (in accordance with
new section 16M);
• investigate whether reportable allegations have been
handled and responded to appropriately by an entity or
regulator (this does not cover criminal investigations
conducted by Victoria Police that involve reportable
allegations);
• make recommendations to an entity following an
investigation;
• exchange information, including the findings of
investigations into reportable allegations and reasons
for such findings, with relevant authorities including
Victoria Police, the Secretary to the Department of
Justice and Regulation (for the purposes of working
with children check assessments and reassessments),
entities, and regulators, such as the Victorian Institute of
Teaching and the Australian Health Regulation Agency;
• monitor entities' compliance with the reportable conduct
scheme;
• report on trends in the reporting and investigation of
reportable allegations and findings of investigations to
the Minister for Families and Children and Parliament;
and
8
• perform any other function conferred on the
Commission under new Part 5A.
New section 16H provides that the Commission has all the
powers that are necessary or convenient to perform its functions
under new Part 5A.
New section 16I provides the Commission with the ability to
exempt the head of an entity from certain obligations under the
reportable conduct scheme. These are--
• an exemption from the requirements of new
section 16M (to report information within 3 days
and 30 days of becoming aware of a reportable
allegation); or
• an exemption from the requirement to report certain
information within 30 days of becoming aware of a
reportable allegation.
The exemption may only be granted in respect of a class or
kind of reportable conduct specified by the Commission and
under subsection (3), the Commission must notify the entity
of the exemption granted and publish the exemption on the
Commission's website.
Under subclause (4), if the head of an entity has been granted
an exemption by the Commission, the entity, or a relevant
regulator, must still notify the Commission of the outcome
of any investigations.
New section 16I is intended to reduce the notification burden
for entities which have sophisticated investigation processes
and demonstrated ability to respond to investigations to an
appropriate standard.
New section 16J enables regulations to prescribe an entity or
class of entities to be exempt from the requirements of the
reportable conduct scheme as a whole. This is intended to enable
future exemption of entities where it is no longer appropriate or
necessary for them to be captured by the reportable conduct
scheme, for example, where responsibility for overseeing certain
entities or class of entities is referred to a Commonwealth
agency.
9
New section 16K concerns the systems that the head of an entity
must ensure are in place within the entity to ensure compliance
with the scheme. Systems will include appropriate policies and
procedures for preventing reportable conduct by an employee and
for investigation and responding to such conduct.
Subclause (1) provides that the head of an entity must ensure
that systems are in place to prevent reportable conduct within the
course of an employee's employment, investigate and respond to
reportable allegations, and to enable any person to notify the head
of an entity of a reportable allegation, or the Commission of a
reportable allegation involving the entity head.
Subclause (2) requires an entity to provide the Commission any
information about such a system when requested in writing.
Subclause (3) enables the Commission to make recommendations
to the entity, after consulting with any relevant regulator, about
any reasonable concerns the Commission may have with the
systems the entity is required to maintain under subclause (1).
New section 16L specifies that any person may disclose a
reportable allegation to the Commission. As the definition
of reportable allegation requires a reasonable belief, persons
may only make such disclosures if the person has a reasonable
belief that an employee has committed reportable conduct or
misconduct that may involve reportable conduct. This includes
where the reportable allegation is made against the head of the
entity.
Unless the Commission has provided the entity with an
exemption from doing so under new clause 16I, new
section 16M(1) requires the head of an entity to notify the
Commission of certain matters when it becomes aware of
a reportable allegation against an employee of the entity.
This includes where the reportable allegation is made against
the head of the entity. New section 16M(1) sets out the
requirements for making this notification.
Subclauses (2) and (3) set out circumstances in which the
notification process doesn't apply.
Subclause (4) makes it a criminal offence, punishable by
10 penalty units, for a head of an entity to fail, without a
reasonable excuse, to comply with the notification requirements
in subsection (1). Subclause (5) provides that it is a defence
10
under subclause (4) for the entity head to provide that he or she
honestly and reasonably believed that another person had notified
the Commission of the reportable allegation in accordance with
subclause (1). Subclause (5) transfers the burden of proof to the
entity head. This is necessary given the matters to which it
applies are within the personal knowledge of the entity head.
New section 16N imposes obligations on the head of an entity
to respond to reportable allegations. Subclause (1) requires the
entity head to investigate the reportable allegation, or permit a
regulator or independent investigator engaged by the entity or
regulator to do so. It also requires the head of an entity to notify
the Commission of the identity of the person or body that will
investigate.
Upon written request, subclause (2) requires the entity head to
provide the Commission with any information or documents
relating to the reportable allegation or investigation. After the
investigation is complete, subclause (3) requires the head of an
entity to give the Commission: a copy of the investigation
findings and the reasons for those findings; details of any
disciplinary or other action the head of the entity proposes to
take and the reasons; and if the head of the entity does not
propose to take any disciplinary or other action, the reasons
why no action will be taken (subclause (3)).
New section 16O empowers the Commission to investigate
reportable allegations against employees. This includes
investigating allegations against the head of an entity.
Under subclause (1) and (2), the Commission may, on its
own motion, conduct an investigation into a reportable
allegation against an employee of an entity where the
Commission--
• has received information about the reportable allegation
from any person, and believes on reasonable grounds
that reportable conduct may have been committed, and
it is in the public interest; or
• is advised by the entity that the entity or regulator will
not or is unable to investigate the reportable allegation
or engage an independent investigator to do so.
Subclause (3) also empowers the Commission to investigate any
inappropriate handling of, or response to, a reportable allegation
by an entity or regulator if it is in the public interest.
11
At the conclusion of any investigation conducted by the
Commission, subclause (4) provides that, after the Commission
has consulted any relevant regulator, the Commission--
• must make findings (on whether or not the employee
has committed reportable conduct), provide reasons for
the findings and make any recommendations for action
to be taken;
• must provide the findings, reasons, any
recommendations and relevant information to the entity;
and
• may provide to the regulator any recommendations for
action by the regulator.
New section 16P empowers the Commission in an investigation
to visit an entity to inspect documents relevant to a reportable
allegation, or conduct interviews under new sections 16Q, 16R,
or 16S.
New section 16Q empowers the Commission to interview any
employee of an entity if the Commission considers the employee
may have information about a reportable allegation.
New section 16R empowers the Commission to interview a child
who is said to be the victim of the alleged reportable conduct or
misconduct that may involve reportable conduct, or who may be
a witness to such conduct. Subclause (2) allows the Commission
to engage an appropriate person to interview the child on behalf
of the Commission and subclause (3) requires the interviewer to
consider and take all reasonable steps to mitigate any negative
effect that the interview may have on the child. Subclause (4)
requires consideration to be given to allowing for the child's
primary carer to be present. This ensures the Commission
considers whether the person involved in the child's life on a
daily basis should be present.
New section 16S empowers the Commission to interview
an employee who is the subject of a reportable allegation.
Under subclause (2), that employee may, but is not required to,
answer the Commission's questions or provide information to
the Commission.
New section 16T empowers the Commission to request
information from Victoria Police regarding whether an
employee is under police investigation for the reportable
12
allegation and the result of the investigation. Victoria Police
must comply with the request unless it would be prejudicial to
the investigation or enforcement or proper administration of the
law.
New section 16U(1) requires an entity, regulator or an
independent investigator to report any criminal conduct to the
police on becoming aware of the matter.
New section 16U then deals with priority of investigations when
Victoria Police is investigating a reportable allegation, including
court proceedings or appeals.
New section 16V(1) empowers the Commission to request
(but not compel) a regulator of an employee to investigate a
reportable allegation in respect of the employee. This provision
is intended to enable the Commission to consider the most
appropriate person to investigate.
Under new section 16V(2), the Commission may require an
employee's regulator to provide information and documents in
relation to an employee for the purpose of a reportable allegation
regarding the employee being investigated by the Commission, or
investigation of a reportable allegation against the employee that
is being conducted by the regulator.
Under new section 16W, the Commission may monitor the
progress of an investigation of a regulator of a reportable
allegation if it is in the public interest to do so.
New section 16X(1) enables a regulator to disclose any
information or documents to the Commission for the purposes
of the reportable conduct scheme despite any law to the contrary.
Subclause (2) sets out the documents and information that the
regulator must provide if requested to do so in writing by the
Commission.
New section 16Y provides that disclosure of information or
documents to the Commission made in good faith by any person
under the Bill does not constitute unprofessional conduct or
breach of professional ethics, does not make the person who
made the disclosure subject to any liability, and without limiting
the foregoing, is not a contravention of section 141 of the
Health Services Act 1988 or section 346 of the Mental Health
Act 2014.
13
New section 16Z provides that it is a reasonable excuse for an
individual to refuse or fail to give information or documents to
the Commission in response to questioning or requirements under
the Bill if giving the information or documents would incriminate
the person.
New section 16ZA requires an entity or the head of an entity to
provide any assistance to the Commission or the Commission's
authorised person that is reasonably required in connection
with the reasonable performance of the Commission's functions
under the Bill.
New section 16ZB provides that the Commission, the head of
an entity or a regulator may disclose specified information about
an investigation conducted under new section 16N or 160 to a
number of people including the child; any out of home carer;
any person who has the daily care or control of the child; the
Secretary to the Department of Health and Human Services when
the Secretary has parental responsibilities for the child; and the
child's parents (which takes its meaning from the Children,
Youth and Families Act 2005) to capture the range of parents
that may be involved with the child. The information that may
be disclosed includes information about the progress of the
investigation; the findings, reasons and recommendations made
at the conclusion of an investigation, and actions taken in
response to the findings. Subclause (3) provides that new
section 16ZB does not limit any disclosures that may otherwise
be made under any Act or law.
New section 16ZC empowers the Commission, the head of an
entity and a regulator to disclose specified information to each
other, and to Victoria Police, if necessary to an independent
investigator or the Secretary to the Department of Justice and
Regulation (for the purposes of a working with children check),
a relevant Minister, and any other prescribed person or body in
relation to a prescribed matter or class of matters.
Subclause (1) specifies that the following information may be
disclosed--a reportable allegation, a concern that reportable
conduct has occurred, and investigation in relation to same,
the findings, reasons and recommendations made following
an investigation, and any action taken in response. If the
Commission, head of an entity or regulator has found that
reportable conduct has been committed by an employee, under
new section 16ZD, the Commission must notify the Secretary
14
to the Department of Justice and Regulation that the finding has
been made, reasons for the finding, the employee's details and
date of birth (if known) unless one of the circumstances in
subclause (2) apply.
Under subclause (2), the Commission has discretion to notify the
finding of reportable conduct to the Secretary to the Department
of Justice and Regulations if the finding has already been
referred. This is intended to reduce duplication of resources.
The Commission also has discretion to make the notification if
the Commission considers that the reportable conduct would be
better addressed through training as supervision or if for any
other reason it is not appropriate for the Commission to give the
notification.
New section 16ZE inserts 2 new criminal offences into the
Principal Act.
Subclause (1) makes it a criminal offence to publish, or
cause to be published, any information that would enable the
identification of a person who has notified the Commission of
a reportable allegation or a concern that reportable conduct has
occurred. Subclause (2) makes it a criminal offence to publish,
or cause to be published, any information that would enable
the identification of a child in relation to whom a reportable
allegation was made, or a finding of reportable conduct was
made. Both offences are punishable by 300 penalty units in
the case of a body corporate, or in any other case, 60 penalty
units. Subclause (3) provides that it will not be an offence if the
publication was completed in purported compliance with another
Act. Subclause (4) sets out a definition of publish for the
purposes of the offences.
New section 16ZF makes it an offence for a person to, in
purported compliance with the Bill, knowingly give false or
misleading statements or information, or produce a document
that the person knows is false or misleading without indicating
how it is false or misleading or correcting the information if
practicable to do so.
New section 16ZG empowers the Commission to issue a notice
to produce documents or categories of documents in writing
in the prescribed form (if any) if an entity has not given
information or documents in response to a written request
from the Commission (subclauses (1) and (3)). Subclauses (4)
15
and (5) provide for the contents of the notice and time for
compliance with the notice.
Under subclause (2), if the Commission made a request under
new section 16K(2) for information about systems the entity
is required to have in place under new section 16K(1), the
Commission may give a notice to produce if the Commission
believes the entity has not complied with new section 16K(1).
This includes where the Commission considers there are no
systems in place, or the one in place is not appropriate.
Subclause (6) empowers the Commission to, by further written
notice, vary or revoke a notice to produce.
If an entity does not comply with a notice to produce, new
section 16ZH(1) empowers the Commission to apply to the
Magistrates' Court for a declaration that the relevant entity has
failed to comply and an order that the relevant entity pay a civil
penalty.
Subclause (2) provides that the Magistrates' Court may make the
declaration sought if satisfied that the entity has failed to comply
with the notice to produce documents and that the failure to
comply was unreasonable.
Subclause (3) provides that if the Magistrates' Court has
made a declaration under new subclause (2), the Magistrates'
Court may then order the entity to pay a civil penalty to the
Commission not exceeding $9000. The Commission must pay
these amounts into the Consolidated Fund (subclause 6).
In deciding the amount of the penalty, subclause (4) requires
the Magistrates' Court to take into account the size of the entity,
the impact of the penalty, and whether the non-compliance with
the notice to produce was wilful or serious.
Subclause (5) provides that an order made by the Magistrates'
Court under this section is taken to be an order made in a civil
proceeding.
New section 16ZI requires the Commission to prepare and
implement a process for internal review of a decision to give a
notice to produce which may be sought by an entity, and a
review of a finding made following an investigation made by the
Commission under new section 160 which may be sought by an
employee.
16
New section 16ZJ enables an employee to apply to VCAT for
a review of the Commission's decision that the employee has
committed reportable conduct within 28 days after the later
of--the day the decision was made, or if the relevant entity
requests a statement of reasons under the Victorian Civil
and Administrative Tribunal Act 1998, the day on which a
statement of reasons is given; or the day the relevant entity is
informed under section 46(5) of that Act that a statement of
reasons will not be given. Before an employee may seek a
review at VCAT of a decision to issue a notice to comply, the
employee must exhaust all available avenues of internal review
of the decision.
New section 16ZK provides the methods in which document
is to be served on or given to an entity, or person or non legal
person, under the Bill. It will be taken to be served or given
where a true copy is delivered personally to the person or entity
head, left at, or sent by post to, the last known or usual place of
business, or for persons, to the last known place of residence.
Documents to be served or given under the Bill may also be
served or given electronically, including by fax transmission
and email, in accordance with the Electronic Transactions
(Victoria) Act 2000.
New section 16ZL(1) requires the Commission to include, in
its annual report produced under the Financial Management
Act 1994, a review of the operation of the reportable conduct
scheme during the financial year to which the report relates.
New section 16ZL(2) requires the Commission to give a further
report to the Minister and Secretary of the Department of Health
and Human Services on request.
New section 16ZL(4) specifies that the reports or review
produced under subclauses (1) and (2) must not contain any
information which identify a child or from which the child's
identify can be ascertained.
Subclause (5) provides that if any reporting under new
subclauses (1) or (2) includes any comment or opinion
that is adverse to a person, an entity or regulator, the
Commission must give the person, entity or regulator the
opportunity to comment on the adverse comment or opinion.
17
The Commission's annual report is already provided to
the Minister under the Financial Management Act 1994.
In addition, subclause (6) requires that report, along with any
further report requested by the Secretary or Minister, to be
provided to any other relevant Minister or Departmental
Secretary. This is intended to ensure relevant Ministers and
Departments are informed of any issues regarding compliance
with the reportable conduct scheme within the sectors they
regulate or fund.
The Financial Management Act 1994 provides for the tabling
of the Commission's annual report in Parliament. In addition,
new section 16ZM provides the Commission with the discretion
to give a copy of any further report produced under new
section 16ZL(2) to the clerk of each House of Parliament if at
least 14 days has elapsed since the persons referred to in new
section 16ZL(2) were given the report. If provided, each clerk
must cause the report to be laid before the House on the day
on which the report was received, or the next sitting day of
the House. If the Commission proposes to give a report to
Parliament when neither House is sitting, subclause (4) requires
the Commission to first give one business days notice, give a
copy of the report to the clerk of each House on the day indicated
in the notice, and cause the report to be published by the
Government printer.
Upon receipt of a notice under subclause (4), subclause (5)
requires the clerk of a House of Parliament to notify each
member of the House of receipt of the notice as soon as
practicable. Upon receiving a copy of the report, subclause (6)
requires the clerk of the House to, as soon as practicable, notify
each member of the report, give a copy to any member of the
House on request, and cause a copy of the report to be laid
before Parliament on the next sitting day. Under subclause (7),
a copy of a report given to the clerk is taken to have been
published by order, or under the authority of, that House.
New section 16ZN requires the Minister to cause a review of the
first 5 years of the reportable conduct scheme and cause a report
of the review to be laid before each House of Parliament on or
before 1 July 2023. The review must include whether the scheme
should be expanded to apply to other entities.
18
Clause 7 amends section 47 of the Principal Act. Section 47 contains the
regulation making power under for Principal Act. Clause 7 will
amend section 47(2) so that the regulations may--confer an
authority or duty on a person, body or class of persons or bodies;
leave any matter or thing to be determined, applied, dispensed
with or regulated by a specified person; provide in a specified
case or class of cases for the exemption of persons or things, or a
class of persons or things from any of the provisions of the
regulations.
Clause 8 inserts a new Part 9 (Transitional Provisions) into the Principal
Act. Part 9 will insert a new section 48 so that the Principal
Act will apply to a reportable allegation made on or after the
commencement of Part 2 of the Bill, irrespective of when the
conduct that is the subject of the reportable allegation occurred.
Clause 9 inserts new Schedules 3, 4 and 5 after Schedule 2 of the Principal
Act. New Schedule 3 contains the entities that are required to
comply with the reportable conduct scheme from commencement
of the Bill. New Schedule 4 contains the entities that are required
to comply with the reportable conduct scheme 6 months from
commencement of the Bill. New Schedule 5 contains the entities
that are required to comply with the reportable conduct scheme
18 months from commencement of the Bill. The differences
between these classes of entities is described at the clause note
for clause 5.
Part 3--Amendment of other Acts
Clause 10 amends sections 20(3), 22(1), 22(4), 54, 55 and 60 of the
Commission for Children and Young People Act 2012.
Subclauses (a) and (b) amend section 20(3). Section 20(1) of that
Act enables the Commission to delegate a power or function of
the Commission under that Act or any other Act. That delegation
power may be used by the Commission to delegate its powers
and functions under the Bill. The amendment will mean that the
Commission may not delegate its powers to decide whether to
conduct an investigation under new section 16O of the Bill, or
the power to give a report to Parliament under new section 16ZM
of the Bill.
Subclause (c) omits the word "written" from section 22(1) so
that the Commission may, by instrument, authorise any person
to assist the Commission in performing its functions (other than
19
a function specified in subsection (4)). Previously, section 22(1)
referred to a "written instrument". The reference to the
instrument being required to be in writing is unnecessary.
Subclauses (d) and (e) amend section 22(4) so that the
Commission may, by instrument, authorise any person to assist
the Commission in performing its functions, other than making
an application to the Magistrates' Court under new section 16ZH
of the Bill. Previously, section 22(4) did not include this
limitation on the Commission's authorisation power.
Under section 8(1)(i) of the Commission for Children and
Young People Act 2012, the functions of the Commission are
functions conferred on the Commission by that Act and any other
Act. Given section 22(1) and 8(1)(i) of the Commission for
Children and Young People Act 2012, it is intended that the
Commission use its authorisation power under section 22(1) of
the Commission for Children and Young People Act 2012 to
authorise appropriate persons to perform the Commission's
functions under the Bill.
Subclause (f) substitutes a new definition of protected
information in section 54. Protected information will mean
information acquired by a relevant person under the Commission
for Children and Young People Act 2012, or under the Bill by
reason of being a relevant person. Previously, the definition did
not capture information obtained under the Bill. The amendment
will mean the confidentiality provision preventing protected
information from disclosure under section 55, except in specified
circumstances, applies to information collected by relevant
persons under the Bill. The Bill and Commission for Children
and Young People Act 2012 include express provisions
permitting or requiring disclosure of protected information in
specified circumstances.
Subclause (g) amends the definition of relevant person
in section 54. Relevant person will now include a
"Principal Commissioner". Previously, it only included a
Commissioner (which due to its definition, does not include
a Principal Commissioner), a delegate of the Commission, an
authorised person, or a staff member of the Commission.
The amendment is necessary to ensure the confidentiality
provisions capture the Principal Commissioner.
20
Subclause (h) amends section 55(b) so that a relevant person
may disclose protected information to give information that the
relevant person is expressly authorised, permitted or required to
give under the Commission for Children and Young People
Act 2012 or any other Act. Previously, section 55(b) only
referred to the Commission for Children and Young People
Act 2012. The amendment is necessary to reconcile the
distribution of the Commission's functions across 2 Acts.
Subclause (i) amends section 60 so that the Commission may
disclose to the Minister or Secretary any information acquired
by the Commission in performing its functions and exercising its
powers under the Commission for Children and Young People
Act 2012 or under any other Act. Previously, section 60 only
referred to the Commission for Children and Young People
Act 2012. The amendment is necessary to reconcile the
distribution of the Commission's functions across 2 Acts and
will ensure the Commission may provide information collected
under the Bill to the Minister or Secretary.
Clause 11 amends sections 14(1)(a)(i), 21AD(1)(a)(i) and 40(2)(a)(iii) of
the Working with Children Act 2005.
Subclauses (1) and (2) amend sections 14(1)(a)(i)
and 21AD(1)(a)(i) respectively so that prescribed findings
referred by a prescribed body, as well as prescribed findings
made by or on behalf of a prescribed body, may be considered
in assessments and reassessments. The amendment is
consequential to the Commission's power under the Bill to
refer findings of reportable conduct made by entities, regulators
or independent investigators to the Secretary to the Department
of Justice and Regulation for the purposes of assessments and
reassessments.
Subclause (3) amends section 40(2)(a)(iii) so that the prohibition
in subsection (1) on persons disclosing information acquired
from carrying out a working with children check or under
specified sections does not apply to the giving of information to
the Commission for Children and Young People for the purposes
of an investigation of a reportable allegation. This amendment
will enable information sharing to aid investigations of and
responses to reportable allegations under the Principal Act.
21
Clause 12 amends several provisions in the Education and Training
Reform Act 2006 to enable the Victorian Institute of Teaching
to consider findings of reportable conduct, and the reasons for
such findings, in determining an individual's suitability to teach.
These amendments are intended to ensure that persons who pose
a risk to children do not work with them.
Subclauses (1), (3), (4), (6), (7) and (8) amend section 2.6.7(3A),
2.6.12A(6), 2.6.12B(3), 2.6.13(2B) and 2.6.13A(3), 2.6.18(1D)
respectively so that the Victorian Institute of Teaching may have
regard to a finding that the applicant has committed reportable
conduct, and the reasons for the finding, under the Principal Act
when considering the following applications--
• application for registration as a teacher
(section 2.6.7(3A))
• application for registration as an early childhood
teacher (section 2.6.12A(6))
• application for registration as an early childhood
teacher that is made at the same time as an application
for registration as a teacher (section 2.6.12B(3))
• application for permission to teach (section 2.6.13(2B))
• application for permission to teach made at the
same time as an application for registration as an
early childhood teacher (section 2.6.13A(3))
• application for renewal of registration
(section 2.6.18(1D)).
Subclauses (2) and (5) amend sections 2.6.9(2) and 2.6.12D(2)
respectively so that if an applicant has been found to have
committed reportable conduct under the Principal Act, the
Victorian Institute of Teaching may refuse to grant the following
types of registration to the applicant--
• registration as a teacher (section 2.6.9(2))
• registration as an early childhood teacher
(section 2.6.12D(2)).
Subclause (9) inserts a new section 2.6.31(5). This section
imposes a requirement on the Commission to immediately notify
the Victorian Institute of Teaching upon becoming aware that a
22
registered teacher is subject to a reportable allegation or a finding
of reportable conduct under the Principal Act. The Victorian
Institute of Teaching may conduct a discipline inquiry upon
receipt of this information under section 2.6.30.
Clause 13 makes several consequential amendments to the Children,
Youth and Families Act 2005 to enable information sharing
between the Commission for Children and Young People, the
Suitability Panel and the Secretary, and thus, facilitate the
operation of the reportable conduct scheme. The Suitability
Panel determines whether a person should be disqualified from
being placed on the register of out of home carers under the
Children, Youth and Families Act 2005.
Subclause (1) inserts a new definition of Commission for
Children and Young People into section 74 which applies to
Part 3.4--Out of Home Carers. Commission for Children and
Young People means the Commission for Children and Young
People established by section 6 of the Commission for Children
and Young People Act.
Subclause (2) amends section 104(3) so that a notice of a
hearing served by the Suitability Panel must be served in
accordance with section 593 of the Children, Youth and
Families Act 2005.
Subclause (3) amends section 107(1) so that in addition to
notifying the Secretary of its findings and determinations under
sections 105 (whether the person subject of the allegations has
physically or sexually abused the child) and 106 (whether the
person subject of the allegations poses an unacceptable risk of
harm to children), the Suitability Panel must also, without delay,
notify the Commission and may provide reasons for the findings
and determinations to the Secretary and Commission.
Subclause (4) amends section 107(2) so that in addition to the
Suitability Panel notifying the Secretary to the Department of
Justice and Regulation (for the purposes of the working with
children check) of a disqualification, the Suitability Panel may
provide reasons for the finding.
Subclause (5) amends section 107(3) so that in addition to
providing its findings and determinations to the person about
the whom the allegation is made, the Suitability Panel must
give its reasons.
23
Subclause (6) amends section 113(1) so that in addition to
notifying the Secretary of its determination in respect of an
application for review of disqualification by the Suitability
Panel, the Suitability Panel must also, without delay, notify the
Commission and may provide reasons for the determination to
the Secretary and Commission.
Subclause (7) amends section 113(2) so that in addition to
notifying the Secretary to the Department of Justice and
Regulation that a person's disqualification should be removed,
the Suitability Panel may also provide the reasons for the finding.
Subclause (8) amends section 113(3) so that in addition to
notifying the person who applied for a review of disqualification
of its determination, the Suitability Panel must provide its
reasons.
Subclause (9) inserts a new section 125(2) which enables the
Secretary to disclose to the Commission the matters referred to
in subsection (1) if the allegation against an out of home carer
being investigated is a reportable allegation within the meaning
of the Principal Act.
Subclauses (10) and (11) amend section 130 so that it will not
be an offence for an authorised investigator to disclose any
information acquired by the authorised investigator in carrying
out an investigation under Part 3.4 (i.e. an investigation into
allegations against out of home carers) to the Commission if the
investigation relates to a reportable allegation (as defined in the
Principal Act). Previously, disclosure of such information to any
person, except to the Secretary or Suitability Panel, was an
offence.
Clause 14 inserts a new section 132A into the Children, Youth and
Families Act 2005. New section 132A will provide immunity
to a member of the Suitability Panel for anything done or omitted
to be done in good faith in exercising a power or discharging a
duty under the Children, Youth and Families Act 2005, or in
the reasonable belief that the act or omission was in the exercise
of a power or the discharge of a duty under that Act. Instead, the
Crown will be liable for such acts or omissions.
24
Clause 15 amends sections 39 and 128 of the Disability Act 2006.
Subclause (1) amends section 39(4) so that a person will not
be prevented from disclosing information about a reportable
allegation within the meaning of the Principal Act to the
Commission for Children and Young People relating to the
provision of disability services to any person that is gained by
the person in the person's official capacity that identifies, or is
likely to lead to the identification of, the person to whom the
information relates. Previously, section 39(3) would prevent
this information from being provided.
Subclause (2) amends section 128(1)(a) so that the Disability
Services Commissioner, an acting Disability Services
Commissioner, a delegate, staff member or consultant of the
Disability Services Commissioner, may disclose or communicate
information or affairs of any individual or organisation acquired
under the Disability Act 2006 if necessary to do so for the
purposes of the Act or any other Act. Previously, this provision
did not refer to any other Act.
These amendments are intended to enable relevant persons to
provide information to the Commission to facilitate the operation
of the reportable conduct scheme, and minimise duplication in
any investigation or action that may be undertaken.
Clause 16 amends schedule 3 of the Ombudsman Act 1973 by inserting
as a new item 2A "The Commission for Children and Young
People". The amendment will mean that the Ombudsman may
refer a complaint to the Commission under section 16I if the
Ombudsman considers the subject matter of the complaint is
relevant to the Commission's duties and functions, or the
exercise of its powers, and it would be more appropriate for
the Commission to deal with the complaint. This is intended to
ensure matters regarding the reportable conduct scheme may be
referred appropriately to the Commission.
Clause 17 Subclause (1) makes several statute law revision amendments
to the Education and Training Reform Act 2006.
Subclause (1)(a) and (b) amend sections 4.3.16(2A)(b)(iii)
and 4.3.21(3)(e)(iii) by updating a reference to a repealed
Act by substituting "Fair Trading Act 1999" with
"Australian Consumer Law and Fair Trading Act 2012".
25
Subclauses (1)(c) to (f) replace "Department" with "department"
in sections 4.3.47(1)(g)(ii), 4.9.4(1AA) and 5.5.26(1)(c) and in
paragraph (g) of the definition of prescribed person or body in
section 4.9.4(3) given "department" in this context is a reference
to Commonwealth departments.
Subclause 1(g) replaces "government and non-government"
with "Government and non-Government" in clause 1.8(c) of
Schedule 8 for consistency with other references in the Act.
Subclause (2) makes a statute law revision by repealing
section 19(1)(b) of the Children, Youth and Families
Act 2005. That section allowed the Secretary to authorise
certain persons to exercise or perform any function or power
conferred on the Secretary under section 285. Section 285
has been repealed.
Part 4--Repeal of amending Act
Clause 18 provides that the Bill is repealed on 1 July 2018. Due to
section 15(1) of the Interpretation of Legislation Act 1984,
the repeal of the Bill does not affect the continuing operation
of the amendments made by it.
26