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Children Legislation Amendment
(Information Sharing) Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Overview
The Children Legislation Amendment (Information Sharing) Bill 2017
amends the Child Wellbeing and Safety Act 2005 (the Principal Act) to--
• establish a scheme for specified entities to share information to
promote the wellbeing and safety of children; and
• establish a register of children born or resident in Victoria
to improve the wellbeing and safety outcomes for those
children and to monitor and support their participation in
government-funded programs and services.
Additionally, the Bill amends certain other Acts to reduce or remove barriers
to information sharing.
Background and summary of amendments
The objective of the Bill is to promote better child wellbeing and safety
outcomes by enabling specified government agencies and service providers
to share information that will--
• improve early risk identification and intervention; and
• change a risk averse culture in relation to information sharing;
and
• increase collaboration and integration between child and family
services; and
• support children's participation in services.
581377 1 BILL LA INTRODUCTION 12/12/2017
The Bill is intended to complement other child safety reforms recently
inserted into the Principal Act and the establishment of the family violence
information sharing scheme under the Family Violence Protection
Amendment (Information Sharing) Act 2017.
Child information sharing scheme
The Bill authorises prescribed entities, known as information sharing entities
or restricted information sharing entities, to--
• request confidential information from another information
sharing entity or restricted information sharing entity for the
purpose of promoting the wellbeing or safety of a child or a
group of children; and
• disclose confidential information (either voluntarily or in
response to a request) to another information sharing entity
or restricted information sharing entity for the purpose of
promoting the wellbeing or safety of a child or group of
children and to assist the recipient to deliver services in
relation to the child or group of children.
To ensure that the privacy of individuals is not arbitrarily or unlawfully
interfered with, the Bill provides for a range of protections for individuals.
For example, the Bill recognises that the disclosure of confidential
information will not be appropriate in all cases and, therefore, excludes
certain information from the operation of the scheme.
The Bill also contains a list of legislative principles intended to guide
information sharing entities and restricted information sharing entities
in relation to the sharing of confidential information under the scheme.
In addition, the responsible Minister is required to issue binding guidelines
in relation to the operation of the scheme and must review the scheme
within 2 years and 5 years of the commencement of its operation.
The Bill introduces offence provisions for unauthorised use or disclosure
of confidential information and extends the operation of the Privacy and
Data Protection Act 2014 to information sharing entities and restricted
information sharing entities not already subject to that Act. The result is
that information sharing entities must now comply with the Information
Privacy Principles in that Act as well as the Health Privacy Principles in
the Health Records Act 2001 and may be the subject of complaints to the
Commissioner for Privacy and Data Protection or the Health Complaints
Commissioner.
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Child Link Register
The Bill establishes the Child Link Register (Child Link), which will
contain a limited set of key factual information in relation to children
who are born in Victoria or who access certain government funded services
aimed at improving outcomes for children and families including--
• Maternal and Child Health services; and
• supported playgroups; and
• funded kindergarten programs; and
• Government and non-Government schools; and
• school nurse programs and student support services provided
in Government schools.
Child Link will also contain information in relation to children who are
registered for home schooling or in respect of whom a child protection order
has been made.
The information contained on Child Link will include--
• the personal details of a child; and
• the contact details of persons with parental responsibility for,
or who have day-to-day care of, a child; and
• the contact details of services in which a child is enrolled or
participates; and
• the details of a child's participation in a service; and
• whether a child protection order has been made under the
Children, Youth and Families Act 2005 in respect of the
child.
Child Link will be accessible by a range of professionals, known as Child
Link users, who deliver government-funded services to children and families
and will assist in early intervention and the provision of services to children
primarily by--
• enabling those professionals to monitor and support children
who are not participating in services for which they may be
eligible; and
• creating an aggregate picture of the child that assists in early
identification of children who are vulnerable or at risk.
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The Department of Education and Training and the Department of Health
and Human Services will be able to use de-identified data from Child Link to
inform policy and planning for the delivery of services to benefit Victorian
children and their families.
Child Link users who access information on Child Link will only be able to
use and disclose that information for limited purposes related to the specific
services that they deliver.
The Bill gives the Secretary a broad discretion to remove access to a child's
entry on Child Link (for example, if access would pose an unacceptable risk
of harm to a person or if access is otherwise inappropriate in all the
circumstances).
Similar to the child information sharing scheme, the Bill provides for
offences prohibiting unauthorised use or disclosure of information on Child
Link and extends the operation of the Privacy and Data Protection
Act 2014 to Child Link users not already subject to that Act.
Clause Notes
Part 1--Preliminary
Clause 1 sets out the purposes of the Bill. The main purpose of the
Bill is to amend the Child Wellbeing and Safety Act 2005
to establish an information sharing scheme designed to
enable specified entities to share confidential information in
a timely and effective manner in order to promote the safety
and wellbeing of children. The Bill also provides for the
establishment of a register of children born or resident in
Victoria in order to improve wellbeing and safety outcomes
for those children and to monitor and support their participation
in government funded programs and services.
The Bill will amend the Children, Youth and Families
Act 2005 so that the provisions for the sharing of information
under that Act are simplified and complement the information
sharing scheme under new Part 6A of the Child Wellbeing and
Safety Act 2005, as well as to expand the circumstances in
which an authorised officer may direct an information holder to
provide information or documents concerning the protection or
development of a child.
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The Bill also makes consequential and miscellaneous
amendments to the Health Records Act 2001, the Privacy
and Data Protection Act 2014, the Health Services Act 1988
and the Freedom of Information Act 1982.
Clause 2 is the commencement provision, which provides for the Bill
to come into operation on a day or days to be proclaimed, or
on 31 December 2019 if not proclaimed before that date.
Clause 3 provides that in the Bill the Child Wellbeing and Safety
Act 2005 is called the Principal Act.
Part 2--Amendment of Principal Act
Clause 4 amends the purposes of the Principal Act to account for--
• a new information sharing scheme to enable specified
entities to share confidential information in a timely and
effective manner in order to promote the wellbeing and
safety of children; and
• establishing the Child Link Register, to improve child
wellbeing and safety outcomes for, and to monitor
and support the participation in government-funded
programs and services by, children born or resident in
Victoria.
Clause 5 inserts definitions of various words and expressions terms used in
the Bill.
The definition of authorised representative adopts the meaning
of that term within section 28(6) of the Privacy and Data
Protection Act 2014, but clarifies that the definition does not
include a person of concern (as defined under section 144B of
the Family Violence Protection Act 2008) and is limited to a
person who is not alleged to pose a risk of family violence.
The definition of confidential information adopts various
meanings used in the Privacy and Data Protection Act 2014
and the Health Records Act 2001.
The definition of family violence has the same meaning as in the
Family Violence Protection Act 2008.
The definition of health information adopts the meaning used in
the Health Records Act 2001.
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The definition of information sharing entity is provided in new
section 41R of the Bill.
The definition of personal information adopts the meaning used
in the Privacy and Data Protection Act 2014.
The definition of restricted information sharing entity is
provided in new section 41S of the Bill.
The definition of unique identifier adopts the meaning used in
Schedule 1 to the Privacy and Data Protection Act 2014.
The existing definition of court is amended so that it does not
apply to the information sharing requirements under new
Parts 6A and 7A, in order to maintain judicial independence.
New section 41T clarifies this exclusion further.
Clause 6 amends section 5(2)(a) of the Principal Act with regard to the
principles for which services for children and families should be
based, to better reflect the role of service providers. Examples of
the principles provided for by the Bill include--
• intervening early to manage risk, harm and damage to
children; and
• strengthening the capacity and efforts of parents,
families and communities to support a child as early
as possible within the child's life.
Clause 7 amends section 16ZE of the Principal Act. This section creates
an offence for a person who publishes or causes to be published
certain information that would identify a person who has notified
the Commission for Children and Young People of reportable
allegations or reportable conduct or a child in relation to whom
a reportable allegation or a finding of reportable conduct was
made. New section 16ZE(3B) clarifies that the offences do not
prevent a disclosure that is made by an information sharing
entity or a restricted information sharing entity for the purposes
of sharing confidential information under new Part 6A.
Clause 8 inserts new Part 6A into the Principal Act.
New Division 1 provides for the preliminary matters in new
Part 6A, which contains new sections 41P to 41U.
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New section 41P defines terms which are used in new Part 6A.
Child is defined to include an unborn child that is the subject of
a report under section 29 of the Children, Youth and Families
Act 2005 or a referral under section 32 of that Act.
Consent is defined to mean express or implied consent.
Excluded information has the meaning set out in new
section 41Q.
Handling and Information Privacy Principle adopt the meanings
used in the Privacy and Data Protection Act 2014.
Health Privacy Principle adopts the meaning from the Health
Records Act 2001.
Person is defined to include an unincorporated association, a
firm or a partnership.
New section 41Q provides for the meaning of excluded
information, to specify a range of limited circumstances
where a prescribed information sharing entity or restricted
information sharing entity cannot be required to share
confidential information (whether on request or voluntarily)
under new Part 6A. This includes where the collection, use
or disclosure of information could be reasonably expected to
endanger a person's life, be contrary to the public interest or
prejudice an investigation or the enforcement of the law.
This may include, for example, intelligence gathering
methodologies between law enforcement agencies such as
Victoria Police, or in exercise of general statutory investigations
functions, such as reportable conduct under Part 5A of the
Principal Act.
Importantly, the definition reflects the exclusions contained in
new Part 5A of the Family Violence Protection Act 2008,
as inserted by the Family Violence Protection Amendment
(Information Sharing) Act 2017, to ensure consistency in the
sharing of information across the schemes. Further exclusions
can also be prescribed by regulation, to aid in the flexible
application of new Part 6A.
New section 41R provides for the meaning of information
sharing entity, being a person or body prescribed by regulation to
be an information sharing entity. As provided for in Division 2
of new Part 6A, information sharing entities will be able to
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proactively exchange information to promote the wellbeing or
safety of children, which will ensure a more collaborative and
integrated approach to service provision for children and
families.
As a large proportion of organisations and workforces will be
prescribed for the purposes of new Part 6A and new Part 5A
of the Family Violence Protection Act 2008, as inserted by
the Family Violence Protection Amendment (Information
Sharing) Act 2017, new Part 6A has been designed to share
many similar or consistent features to address the risk of
confusion.
Section 41R(2) clarifies the operation of new Part 6A to
prescribed information sharing entities, by providing that the
references to an information sharing entity throughout Part 6A
include all information sharing entities, unless otherwise stated.
New section 41S provides for the meaning of restricted
information sharing entity, being a person or body prescribed
to be able to share information under the scheme for the purpose
of promoting children's wellbeing and safety, albeit in restricted
circumstances. A restricted information sharing entity can
be prescribed to carry out one or more of the listed activities
including disclosure (whether proactive or voluntary), collection
and requesting of confidential information. In practice, it is
intended that categories of restricted information sharing entities
will be prescribed in exceptional circumstances, primarily to aid
in the flexible application of new Part 6A to enable proactive
exchange of information across children's services. For example,
a restricted information entity may be prescribed to only disclose
confidential information but not request it.
Section 41S(2) provides the list of activities that a prescribed
category of restricted information sharing entity may be
permitted to carry out, to assist in the flexible administration
of new Part 6A by tailoring information sharing functions on a
case by case basis. These categories include those which can
disclose, collect or request confidential information.
Section 41S(3) limits the disclosure of confidential information
by a restricted information sharing entity to the category to
which that entity is prescribed to belong. For example, a
restricted information sharing entity prescribed to belong to the
category that may disclose confidential information received
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with regard to new section 41V (voluntary disclosure to another
information sharing entity) cannot disclose information under
new section 41W (after a request for information sharing from an
information sharing entity), unless it is also prescribed to belong
to that category.
New section 41T provides that new Part 6A does not apply to
the collection, use or disclosure of confidential information by
courts, tribunals, court or tribunal registries and their staff, in
relation to, or for the purposes of, their judicial or quasi-judicial
functions. This is intended to ensure that the information
sharing scheme does not affect the independence of courts and
tribunals, as well as reflect an existing exemption in section 10
of the Privacy and Data Protection Act 2014. Together with
exclusions to the coverage of offences in Division 5 of new
Part 6A, this provision makes clear that courts and tribunals will
not be subject to certain obligatory aspects of the information
sharing scheme in a manner that could otherwise impact their
judicial independence.
New section 41U provides for a set of principles to guide how
information is to be shared responsibility and appropriately by
information sharing entities and restricted information sharing
entities in relation to the collection, use or disclosure of
confidential information under new Part 6A. These principles
apply in addition to the overarching purpose of promoting the
wellbeing and safety of children and the reasonable belief that
the disclosure may assist other entities in their dealings with
children.
The listed principles in section 41U(2) are not intended to be
determinative of whether an entity is permitted or required to
share information (as this threshold is provided for in new
sections 41V and 41W) but rather provide guidance on key
considerations when prescribed entities share confidential
information under new Part 6A.
These considerations are intended to ensure that the collection
of information is conducted in a way that minimises risks to
children, their family members and other individuals, including
respecting personal, familial, social and cultural factors before
sharing information. For example, precedence is to be given to
the wellbeing or safety of a child or group of children over the
right to privacy, consistent with the best interests of that child
or group of children, when collecting, using or disclosing
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confidential information (to be read collaboratively with
consequential amendments to privacy related provisions in Part 3
of this Bill).
Section 41U(3) clarifies that Parliament does not intend the
principles to create any new legal rights, give rise to a cause
of any civil action or affect the interpretation of any other Act.
This provision reiterates that the principles in new section 41U
are only considered guidance and do not limit how information
sharing entities or restricted information sharing entities may
collect, use and disclose information under new Part 6A.
Division 2 of new Part 6A provides for information sharing, and
includes new sections 41V to 41Z.
New section 41V provides the power for an information sharing
entity to proactively share confidential information (other than
excluded information, as defined in new section 41Q) with
another information sharing entity. The threshold to sharing
information is 2 tiered. Firstly, the disclosure is to be made
for the purpose of promoting the wellbeing or safety of a child
or group of children. Secondly, a reasonable belief must be
held that the information may assist the recipient entity to
make decisions, assessments or plans, initiate or conduct an
investigation, or provide a service or manage a risk in relation
to a child or group of children.
The provision improves the ability of child and family services to
proactively collaborate and integrate their functions by sharing
confidential information. Currently, under the Principal Act, a
serious risk to the safety of a child is often required before
information can be shared.
By allowing services to share confidential information in
promotion of wellbeing and safety, a more preventative
approach to child safety is possible, in that the identification
and assessment of risk can be managed early along with and
the ability of services to respond to accordingly.
Regarding the listed activities of a receiving entity, this means
that confidential information would only be used for specified
activities that relate to their core functions and not the functions
of other professionals (for example, a doctor exercising
investigatory powers akin to Victoria Police).
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New section 41W allows an information sharing entity to request
another information sharing entity to disclose confidential
information (other than information that is excluded information,
as defined in new section 41Q).
As with new section 41V, this provision will improve the ability
of child and family services to collaborate and share information
with each other, by allowing requests for confidential information
where the purpose is promoting the wellbeing or safety of a
child or a group of children. This, in turn, will assist in the
identification and assessment of risks to children that can be
managed early by services.
Section 41W(2) provides a mechanism to assist the exchange of
information between information sharing entities, by allowing a
requesting entity to disclose confidential information to a
responding entity, if sharing the information will--
• assist in the identification of the confidential
information relevant to the request; and
• assist the responding entity to form an opinion
on whether the confidential information may be
disclosed in accordance with new Part 6A.
Section 41W(3) provides the threshold for confidential
information to be shared upon request. The responding
information sharing entity must comply with the request for
the disclosure of information if the disclosure promotes child
wellbeing or safety and the responding entity reasonably
believes that it may assist the recipient entity to make decisions,
assessments or plans, initiate or conduct an investigation or
provide a service or manage a risk, in relation to a child or group
of children (as is the case with new section 41V). This means
that recipient entities would not be using confidential information
for specified activities other than those exercised through their
functions.
Section 41W(4) provides that if a responding entity does not
comply with a request for information under new section 41W,
it must provide reasons, in writing, to the requesting entity
(unless the responding entity is a court or tribunal prescribed
as an information sharing entity as per new section 41T).
This allows for administrative decision making to be explained
with regard to the request for information that is denied.
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Section 41W(5) clarifies that the requirement to share
information under subsection (3), as well as the requirement
to provide written reasons if a request for information is not
complied with, does not apply to courts or tribunals prescribed
to be information sharing entities under section 41T. As per
section 41T, this subsection makes clear that courts and
tribunals will not be subject to certain obligatory aspects of the
information sharing scheme in a manner that could otherwise
impact their judicial independence.
New section 41X provides that the on-sharing of confidential
information that has been disclosed to an information sharing
entity or a restricted information sharing entity under new
Part 6A is permitted where this is provided for by another Act
or law. For example, the application of the Australian Privacy
Principles under the Privacy Act 1988 of the Commonwealth.
New section 41Y provides that an information sharing entity may
disclose confidential information (other than information that is
considered excluded information, as defined by new section 41Q)
to a child, a person who has parental responsibility for the child,
or a person with whom the child is living for the purposes of
managing a risk to the child's safety. This provision recognises
the critical role that children and their parents or carers play in
managing a risk to a child's safety, by providing a voluntary
disclosure mechanism to assist in mitigating a child's risk
management profile.
Section 41Y(2) and (3) provide that if information is received
by a child, a person with parental responsibility for a child or a
person with whom the child is living, that child or person must
not (except as required or permitted by law) use or disclose
the information for any purpose that does not relate to the
managing of that child's safety risk. This provision recognises
that confidential information, once shared, should continue to
be used for the overarching promotion of wellbeing and safety
purpose for which it was initially disclosed.
New section 41Z provides that an information sharing entity
or a restricted information sharing entity can collect and use
any confidential information disclosed to the entity under new
Part 6A of the Act. This provision clarifies that if an entity is
permitted to disclose information to another entity under new
Part 6A, the recipient entity is expressly permitted to use and
collect it for that purpose.
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Division 3 of new Part 6A provides for guidelines,
protected disclosures and recording requirements.
New section 41ZA provides that the Minister must issue
guidelines in relation to the operation of new Part 6A.
Such guidelines will assist information sharing entities to
understand their obligations under new Part 6A, including
the appropriate balance between the wellbeing and safety
needs of children with an individual's rights to privacy.
Section 41ZA(2) provides that guidelines issued under new
section 41ZA must address the required capacity for an
information sharing entity or a restricted information sharing
entity to handle confidential information under new Part 6A, as
well as how the principles under section 41U are to be applied in
practice. This aspect of the guidelines will promote strengthened
practice for entities prescribed to share confidential information
regarding children, in addition to linking the application of
legislative principles with the day to day functionality of new
Part 6A.
Section 41ZA(3) provides the Minister's requirements in relation
to the guidelines, which include publication (on an appropriate
Internet site) of a draft of the proposed guidelines and a statement
that submissions may be made to the Minister on or before a
specified date. A minimum period of 28 days is provided to
allow sufficient consultation time on the guidelines.
Section 41ZA(4) places further requirements on the Minister
with regard to publication of the guidelines. The Minister must,
as soon as practicable after finalising the guidelines, publish the
guidelines on an appropriate Internet site, in recognition of the
most common and effective means of communicating the
guidelines publicly.
Section 41ZA(5) places a requirement on an information
sharing entity or a restricted information sharing entity to
comply with the guidelines when handling confidential
information under new Part 6A. While compliance with the
guidelines is a requirement under this section, non-compliance
with the guidelines is not cause for an offence, as per new
sections 41ZK(5) and 41ZL(4). For the purposes of
complaints made under the Privacy and Data Protection
Act 2014, Health Records Act 2001 or the Privacy Act 1988
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of the Commonwealth, however, non-compliance with the
guidelines would be relevant.
Section 41ZA(6) provides that an information sharing entity
or a restricted information sharing entity referred to in new
section 41T is not required to comply with the guidelines, the
section which provides for how new Part 6A will apply to
courts and tribunals. This means that courts, tribunals, a court
or tribunal registry and associated staff do not need to comply
with the guidelines when handling confidential information in
accordance with new Part 6A, in furtherance of their judicial
independence.
Section 41ZA(7) provides clarity that the guidelines issued
under this section are not a legislative instrument within the
meaning of the Subordinate Legislation Act 1994, which means
the requirements of that Act are not required to be met when
making the guidelines (such as a regulatory impact statement).
Section 41ZA(8) and (9) allow the Minister to review and
amend the guidelines as needed. However, if the Minister
considers that an amendment to the guidelines is significant or
substantial, they must also be published for public submissions in
the same manner prior to being finalised, as per the requirements
in subsection (3).
New section 41ZB ensures that individuals who use or disclose
confidential information under new Part 6A in good faith and
with reasonable care are protected with regard to any professional
or disciplinary proceedings or penalties, any civil liability or any
findings of breach under professional codes of conduct or ethical
standards. Further, it is provided that such use or disclosure does
not constitute a contravention of any other Act.
New section 41ZC inserts a requirement for an information
sharing entity or a restricted information sharing entity to record
certain information, which is to be prescribed by regulation,
with respect to its collection, use and disclosure of confidential
information. This requirement will promote accountability and
good practice between entities prescribed to share information
under new Part 6A, by allowing information to be collected, such
as the number of requests for information made and received or
the number of request refusals.
Division 4 of Part 6A provides for the relationship between the
information sharing scheme and other Acts.
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New section 41ZD applies to an information sharing entity under
new Part 5A of the Family Violence Protection Act 2008, as
inserted by the Family Violence Protection Amendment
(Information Sharing) Act 2017, that is also an information
sharing entity under new Part 6A of the Principal Act. Both the
Family Violence Protection Act 2008 and new Part 6A provide
information sharing schemes that recognise the wellbeing or
safety of children (including their right to be safe from family
violence), as taking precedence over individual privacy.
Section 41ZD(2) clarifies that where information is being
shared for the purposes of promoting a child's safety or wellbeing
under new Part 6A and also to assess or manage a risk of family
violence to a child under new Part 5A of the Family Violence
Protection Act 2008 as inserted by the Family Violence
Protection Amendment (Information Sharing) Act 2017, an
information sharing entity (or restricted information sharing
entity) prescribed under both schemes will be able to share
information under either scheme.
The guidelines issued under new section 41ZA will include
guidance about using the family violence risk management
frameworks when sharing information to promote child
wellbeing or safety in a family violence context (under new
Part 5A of the Family Violence Protection Act 2008 as inserted
by the Family Violence Protection Amendment (Information
Sharing) Act 2017).
New section 41ZE provides that new Part 6A does not affect
the collection, use or disclosure of confirmation information
that would otherwise be permitted by or under the Privacy and
Data Protection Act 2014, the Health Records Act 2001
or another Act. These Acts, and the Information Privacy
Principles and Health Privacy Principles within them, are to
continue to apply to the extent that they are not displaced or
modified (see Part 3 of this Bill). This provision ensures that
the information sharing scheme under new Part 6A continues
to operate within the existing Victorian privacy framework,
subject to modifications to restrict access where appropriate and
to allow the information sharing scheme to operate in alignment
with new Part 5A of the Family Violence Protection Act 2008,
as inserted by the Family Violence Protection Amendment
(Information Sharing) Act 2017.
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New section 41ZF limits the existing right for individuals to
access confidential information under relevant privacy law, by
allowing information sharing entities or restricted information
sharing entities to restrict information if it is believed, on
reasonable grounds, that access to the information would increase
a risk to the safety of a child or group of children. In this section,
relevant privacy law is clarified to mean--
• Health Privacy Principle 6; or
• Information Privacy Principle 6; or
• the Privacy Act 1988 of the Commonwealth; or
• the Privacy Act 1988 of the Commonwealth applied
as a law of Victoria by another Act.
New section 41ZG extends the operation of the Privacy and
Data Protection Act 2014 to cover any information sharing
entity or restricted information sharing entity that is not already
covered by that Act. This provision will allow complaint
handling mechanisms available to individuals under Division 8
of Part 3 of the Privacy and Data Protection Act 2014 to apply
in relation to complaints about the manner in which confidential
information is handled under new Part 6A of the Principal Act.
New section 41ZH authorises an information sharing entity or
a restricted information sharing entity to collect, use or disclose
information in accordance with new Part 6A despite anything
in an Act. There are a range of secrecy and confidentiality
provisions in other pieces of legislation that prevent the sharing
of information, which this Bill (in alignment with new Part 5A
of the Family Violence Protection Act 2008 as inserted by
the Family Violence Protection Amendment (Information
Sharing) Act 2017) explicitly displaces to allow operation within
the existing Victorian privacy framework (see new Schedule 6
and consequential amendments in Part 3 to this Bill). As a
consequence, any secrecy or confidentiality provision in another
Act which has not been expressly displaced for the purposes of
new Part 6A will continue to have effect.
New section 41ZI clarifies that sections 166(2) and 207(3) of
the Family Violence Protection Act 2008 (restrictions on
the publication of information relating to proceedings in the
Magistrate's Court and on information that may be requested
by police officers) do not prevent disclosure of confidential
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information by an information sharing entity or a restricted
information sharing entity for the purposes of new Part 6A.
This allows information relating to the wellbeing and safety of
children to be shared without impediment, as per the overarching
intent of new Part 6A.
New section 41ZJ clarifies that sections 3 and 4 of the Judicial
Proceedings Reports Act 1958 (restriction on the publication
of reports of judicial proceedings and prohibition on the reporting
of names in certain circumstances) do not prevent disclosure of
confidential information by an information sharing entity or a
restricted information sharing entity for the purposes of new
Part 6A.
Division 5 of new Part 6A provides for offences.
New section 41ZK provides that a person must not use or
disclose confidential information which has been disclosed
to that person under new Part 6A in an unauthorised way.
This safeguard attracts a penalty of 60 penalty units, and in
the case of a body corporate, 300 penalty units, providing for
consistency with a similar offence in the Family Violence
Protection Act 2008, as inserted by the Family Violence
Protection Amendment (Information Sharing) Act 2017.
Section 41ZK(2) provides for a good faith and reasonable care
defence to the offence of unauthorised use of or disclosure of
confidential information under new Part 6A.
The note at the foot of subsection (2) provides reference back
to new section 41ZB (use and disclosures made in good faith
protected under new Part 6A).
Section 41ZK(3) provides exclusions to the coverage of the
offence for unauthorised use and disclosure of information
received, with a range of specific uses or disclosures of
confidential information listed where information may be
shared without attracting a penalty. Exclusions include, for
example, a use or disclosure made--
• with the consent of the person or an authorised person
of the person to whom the information relates (to allow
a prescribed information sharing entity who receives
confidential information under new Part 6A to on-share
the information to an entity that is not prescribed under
the regime); or
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• to a court or tribunal in the course of legal proceedings.
Section 41ZK(4) provides that the offence for using or disclosing
confidential information under section 41ZK(1) does not apply
to a person to whom confidential information is voluntarily
disclosed under new section 41Y, as it would not be appropriate
to prosecute anyone to whom it was already considered necessary
to disclose information. For example, if confidential information
is voluntarily disclosed by an information sharing entity to a
person who has parental responsibility for a child (because that
entity believes on reasonable grounds that providing the parent
with the information is necessary to manage a risk to the child's
safety) then that parent is not bound by the offence to not use or
disclose confidential information under new section 41ZK.
Section 41ZK(5) provides that an offence is not committed
under subsection (1) only for the reason that a person uses
or discloses confidential information in a way that is not
compliant with the guidelines issued by the Minister under
new section 41ZA(1). This provision maintains that the
guidelines issued by the Minister are to assist in information
sharing entities understanding their obligations under new
Part 6A and are not to be grounds for an offence under new
section 41ZK.
A note is inserted at the foot of subsection (5) which clarifies
that while non-compliance with the guidelines issued under
new section 41ZA(1) is not considered an offence, the
non-compliance may lead to the information sharing entity or
restricted information sharing entity ceasing to be a prescribed
entity (to reflect the seriousness placed on adhering to the
guidelines and the administration of new Part 6A) or may be
taken into account regarding a complaint under--
• the Privacy and Data Protection Act 2014; or
• the Health Records Act 2001; or
• the Privacy Act 1988 of the Commonwealth.
New section 41ZL ensures that a person who acquires
confidential information in accordance with new Part 6A does
not intentionally or recklessly use or disclose that information
for another purpose. This safeguard attracts a maximum
penalty of 600 penalty units or 5 years imprisonment (or both)
for a natural person or 3000 penalty units for a body corporate,
18
providing for consistency with a similar offence in new Part 5A
of the Family Violence Protection Act 2008, as inserted by the
Family Violence Protection Amendment (Information
Sharing) Act 2017.
As with section 41ZK, section 41ZL(2) provides exclusions
to the coverage of the offence for intentional or reckless
unauthorised use and disclosure of information received, with a
range of specific uses or disclosures of confidential information
listed to allow information to be shared without penalty.
Exclusions include, for example, a use or disclosure made--
• with the consent of the person or an authorised
representative of the person to whom the information
relates (to allow a prescribed information sharing
entity who receives confidential information under
new Part 6A to on-share the information to an entity
that is not prescribed under the regime); or
• to a court or tribunal in the course of legal proceedings.
Section 41ZL(3) provides that the offence for intentional or
reckless unauthorised use or disclosure of confidential
information under new Part 6A does not apply to a person to
whom confidential information is voluntarily disclosed under
new section 41Y, in recognition that it would not be appropriate
to prosecute anyone to whom it was already considered necessary
to disclose information. For example, if confidential information
is voluntarily disclosed by an information sharing entity to a
person who has parental responsibility for a child (because that
entity believes on reasonable grounds that providing the parent
with the information is necessary to manage a risk to the child's
safety) then that parent is not bound by the offence under new
section 41ZL.
Section 41ZL(4) provides that an offence is not committed
under section 41ZL(1) only for the reason that a person uses
or discloses confidential information in a way that is not
compliant with the guidelines issued by the Minister under
new section 41ZA(1). The guidelines issued by the Minister
are to assist in information sharing entities understanding their
obligations under new Part 6A and are not to be grounds for an
offence under new section 41ZL.
19
A note is inserted at the foot of subsection (4), which clarifies
that while non-compliance with the guidelines issued under
new section 41ZA(1) is not considered an offence, the
non-compliance may lead to the information sharing entity or
restricted information sharing entity ceasing to be a prescribed
entity (to reflect the seriousness placed on adhering to the
guidelines and the administration of new Part 6A) and may
be taken into account regarding a complaint under--
• the Privacy and Data Protection Act 2014; or
• the Health Records Act 2001; or
• the Privacy Act 1988 of the Commonwealth.
New section 41ZM creates an offence of falsely claiming or
holding oneself out to be a an information sharing entity or a
restricted information sharing entity, in recognition that the
sharing of confidential information relating to children should
only be conducted by trusted entities prescribed through the
scheme under new Part 6A. This offence attracts a maximum
of 60 penalty units for an individual and, in the case of a body
corporate, 300 penalty units.
Similarly, section 41ZM(2) provides that a person cannot claim
or hold themselves out as being authorised to collect information
from an information sharing entity or a restricted information
sharing entity. This attracts a maximum of 60 penalty units for
an individual and, in the case of a body corporate, 300 penalty
units.
Section 41ZM(3) provides that it is a defence to the offence in
new section 41ZM(1) if the person reasonably believes that they
are an information sharing entity or restricted information sharing
entity.
Section 41ZM(4) provides that it is a defence to the offence in
new section 41ZM(2) if the person reasonably believes that they
are authorised by an information sharing entity or restricted
information sharing entity to collect confidential information on
behalf of the entity under new Part 6A.
Division 6 of new Part 6A provides for the review of Part 6A.
New sections 41ZN and 41ZO provide that the Minister must
initiate an independent review of new Part 6A within 2 years and
5 years of the commencement of the information sharing scheme.
20
These review periods will allow new Part 6A to be reviewed at
the same time as the family violence information sharing scheme
in new Part 5A of the Family Violence Protection Act 2008, as
inserted by the Family Violence Protection Amendment
(Information Sharing) Act 2017.
The reviews must include consideration of any adverse effects
of the child wellbeing and safety information sharing scheme
and may include recommendations on any matter addressed in
the reviews. Further, the Minister must cause a copy of each of
the reviews to be laid before Parliament within 6 months after
the end of the respective review periods, to allow an appropriate
level of reporting on the operation of the scheme.
Clause 9 provides for minor amendments to section 45 of the Principal
Act. These amendments provide that on receipt of a birth
notice, the Chief Executive Officer of a council must alert both
the council's Maternal and Child Health Centre and the Secretary
of the Department of Education and Training, so as to give effect
to the Child Link Register under new Part 7A.
Clause 10 provides that new Part 7A is inserted into the Principal Act.
Division 1, through new section 46A, provides for terms defined
under new Part 7A.
Approved education and care service adopts the meaning set
out in section 5(1) of the Education and Care Services National
law (Victoria) that provide funded kindergarten.
Approved provider, in relation to an approved education and
care service, adopts the meaning set out in section 5(1) of the
Education and Care Services National law (Victoria).
Child link identifier is defined to mean an identifier allocated to
a child by the Secretary under new section 46C.
Child Link user is defined to mean a person who is authorised to
access the Register, as provided for in new section 46K.
Child protection order is defined to mean--
• an order made under Part 4.8 of the Children, Youth
and Families Act 2005; or
• a protection order within the meaning of the Children,
Youth and Families Act 2005; or
21
• a permanent care order within the meaning of the
Children, Youth and Families Act 2005.
De-identified, in relation to confidential information, is defined
to mean confidential information that no longer relates to an
identifiable individual or an individual who can be reasonably
identified.
Funded kindergarten means a service provided in accordance
with the guidelines in relation to kindergarten funding published
on the website of the Department of Education and Training.
Licenced children's service means a children's service
(within the meaning of the Children's Services Act 1996)
that is licenced under Part 3 of that Act that provides funded
kindergarten.
Licensee, in relation to a licensed children's service, adopts the
same meaning as in the Children's Services Act 1996;
The definitions of Government school, non-government school,
principal, registered early childhood teacher, registered school,
registered teacher, State Register, Student Register and
Victorian Student Number adopt the same meanings as in
section 1.1.3(1) of the Education and Training Reform
Act 2006.
Maternal and Child Health service means a service under the
control of a council that provides health advice to parents and
other caregivers of children under 6 years of age;
Register means the Child Link Register established under
section 46B of new Part 7A;
Relevant service is defined to mean--
• a Maternal and Child Health service; and
• a supported playgroup; and
• an approved education and care service; and
• a licensed children's service; and
• a registered school that is a government school; and
• a registered school that is a non-government school; and
• a student support service provided by the Department of
Education and Training; and
22
• a school nurse program; and
• any other prescribed service.
School nurse means a nurse employed under Part 3 of the Public
Administration Act 2004 by the Secretary, or otherwise engaged
by the Secretary, for the purposes of providing a school nurse
program in a registered school.
Secretary means the Secretary to the Department of Education
and Training.
Sibling of a child includes a half-brother, half-sister, adoptive
brother, adoptive sister, step-brother or step-sister of the child.
Supported playgroup means a playgroup providing support
for families experiencing disadvantage that is funded by the
Department of Education and Training.
Victorian Registration and Qualifications Authority means the
Victorian Registration and Qualifications Authority established
under Chapter 4 of the Education and Training Reform
Act 2006.
Division 2 of new Part 7A provides for the establishment of the
Child Link Register. This includes new section 46B.
New section 46B provides that the Secretary to the Department
of Education and Training must establish and maintain the Child
Link Register in relation to each child who is born in Victoria.
The Secretary is also to establish the Register for those children
in the State who enrol in or engage with relevant services, such as
Maternal and Child Health Centres, children who are registered
under the Education and Training Reform Act 2006 for home
schooling and children in respect of whom a child protection
order has been made.
The Register will enable a more proactive and systematic
approach to data management and information sharing in
children's services, and will support the operation of the broader
information sharing scheme under new Part 6A by facilitating
service collaboration between professionals providing education,
care and services to a child. Register will promote children's
wellbeing and safety by--
• enabling professionals to identify risks and intervene
early by linking information across specified
Department of Education and Training and Department
23
of Health and Human Services funded services, to
create a more comprehensive picture of the child's
circumstances; and
• enabling children's participation in services to be
monitored and supported; and
• assisting in the performance of the functions and
duties of the Secretary to the Department of Health
and Human Services, particularly in relation to child
protection; and
• providing system wide de-identified data to promote
continuous improvement of programs and services for
children.
Section 46B(2) provides the Secretary with the discretion to
maintain certain information regarding adults on the Child Link
Register, who are currently enrolled in a registered school or
for home school and who were on the Register prior to turning
18 years old. The Register will contain, and Child Link users
will be able to access, information about persons who do not
meet the definition of a child (defined under section 3(1) of the
Principal Act as a person who is under the age of 18 years old)
until the person is no longer enrolled in school or registered for
home schooling.
New section 46C authorises the Secretary to create an entry
and allocate a unique identifier for children to whom the Child
Link Register applies (as per new section 46B). This must be
completed on receipt of a birth notice. The note at the foot of
subsection (1)(a) clarifies the application of section 42(1) of
the Principal Act, in that a birth notice must be given for each
child born alive or dead in Victoria, except for the delivery of
a non-viable foetus.
Section 46C(1)(b) provides the circumstances that trigger the
creation of an entry on the Register if an entry has not already
been created on receipt of the birth notice. The entry must be
created at the earliest of the following--
• the child's first contact (as defined under
section 46C(2)) with a relevant service; or
• the allocation to the child of a Victorian student
number by the Secretary under Part 5.3A of the
Education and Training Reform Act 2006; or
24
• the registration of the child for home schooling by the
Victorian Registration and Qualifications Authority; or
• the making of a child protection order in respect of the
child.
New section 46D specifies the information that the Secretary may
include in the Register with regard to a child. This includes, for
example--
• key attributes of the child, such as the child's full name
and date of birth, siblings' names and the names of each
person with parental responsibility for the child; and
• the child's participation in services, such as data related
to the child's enrolment and or participation in key
childhood programs and services; and
• specific vulnerabilities and risks relating to the child,
such as whether a Children's Court order is in force with
respect to the child.
In practice, the Register will extract this information from
existing government IT systems and collate the information
for use by Child Link users within the Child Link Register.
This thin layer of information will allow services to ascertain
whether children, particularly those experiencing vulnerability,
are participating in services designed to support children's
wellbeing and safety (including, for example, kindergarten
programs, schooling and Maternal and Child Health services).
The Register will not contain any case notes, health records or
professional opinions, in addition to not being available for
editing by professionals.
Section 46D(2) provides that the Secretary of the Department
of Education and Training may create, amend or delete an
entry on the Child Link Register at any time. This provision
will allow the Register to be brought up to date in exceptional
circumstances, in alignment with information collected by the
Secretary under new section 46G (for example, to complete an
entry regarding death following a coronial inquiry).
Section 46D(3) defines specified information with regard to
information to be drawn from the services to which a child has
been referred, accessed, enrolled in, registered for or otherwise
engaged with (such as a Maternal and Child Health service),
25
including for example, the dates of the child's participation in
the service.
New section 46E provides the Secretary with the discretion
to exclude information about a child, a person with parental
responsibility for, or day-to-day care of, the child on the Child
Link Register. This power could be exercised in a variety of
circumstances, including, for example, where inclusion of the
information on the Register may place a child or parent's safety
at risk.
New section 46F provides that information on the Child Link
Register cannot be accessed or amended after the child dies,
attains the age of 18 years (noting the application of new
section 46B(2)), is no longer registered for schooling or the
home schooling of the child has ceased or the home schooling
registration has been cancelled by the Victorian Registration
and Qualifications Authority.
Section 46F(2) provides that while an entry on the Register
cannot be accessed or amended in the circumstances listed in
subsection (1), the Secretary can continue to amend the entry
for a period of up to 12 months, to enable the entry to contain
the most complete information (to the extent possible) even
after the Secretary closes the entry.
Section 46F(3) provides that where a child dies, is no longer
registered for schooling or attains the age of 18 years, access
to the Register for these records can occur in the normal course
by a Child Link user and for the purposes of using de-identified
data for the purposes of developing, planning an reviewing
government policies and programs (as provided for in new
section 46O).
New section 46G provides the Secretary of the Department
of Education and Training with the discretion to collect,
use and disclose confidential information for the purposes
of establishing and maintaining the Child Link Register.
This includes information regarding a child, their siblings
or a person with parental responsibility for a child that has
been collected as part of core government business, including,
for example, that which--
26
• has been provided to the Department of Education and
Training (i.e. from Maternal and Child Health services,
supported playgroups, funded kindergartens or services
related to government schools); or
• is contained in the Student Register (as established
under Part 5.3A of the Education and Training
Reform Act 2006); or
• has been provided to the Department of Education and
Training by the Department of Health and Human
Services in relation to child protection matters.
New section 46H authorises the collection, use and disclosure of
confidential information by the Secretary of the Department of
Education and Training (or persons employed or engaged by the
Secretary) for data management purposes (see definition in
subsection (2)). This includes information regarding a child, a
person with parental responsibility for, or who has day-to-day
care of, a child that has been collected as part of core government
business, including that which--
• has been provided to the Department of Education and
Training (i.e. from Maternal and Child Health services,
supported playgroups, funded kindergartens or services
related to government schools);
• is contained in the Student Register (as established
under Part 5.3A of the Education and Training
Reform Act 2006); or
• has been provided to the Department of Education and
Training by the Department of Health and Human
Services in relation to child protection matters.
This may include, for example, the names, dates of birth and
death of the child's birth parent/s and/or guardians, current
contact phone numbers and email addresses for the current
carer of the child.
Section 46H(2) defines data management to mean the
examination and analysis of information to the extent
reasonably required for the purpose of verifying the accuracy
of information collected about a child under new section 46D
(information to be included on the Child Link Register), but does
not include the recording of that information on the Register.
27
This definition clarifies that the additional categories of
information will not be recorded on the Register, but rather
limited to use by the Department of Education and Training to
verify the identity of the child to whom the information relates.
New section 46I authorises the collection and disclosure of
confidential information to the Secretary from relevant persons
for the purpose of establishing and maintaining the Register, and
to facilitate data management activities in relation to the Register
(see new section 46H). This provision clarifies how information
is drawn from these services, such as school nurses or Maternal
and Child Health nurses, for these purposes.
New section 46J provides that the collection, use or disclosure
of confidential information from the Child Link Register by the
Secretary (see new sections 46G, 46H and 46I) will not require
the consent of the child or person with parental responsibility
for or day-to-day care of the child. This is consistent with the
information sharing scheme established under new Part 6A.
However, it is noted that upon enrolment in a relevant service or
programs that will provide information to Child Link, children
(and where appropriate, parents and guardians) will be notified
about how their information may be used and disclosed (as is the
case under the Privacy and Data Protection Act 2014).
Division 4 of new Part 7A inserts provisions with regard to
access, use and disclosure of information contained on the
Child Link Register. This includes new sections 46K to 46R.
New section 46K provides the list of Child Link users for the
purposes of new Part 7A. Read together, new section 46M
and new Schedule 6 give listed users access to the Child Link
Register in order to use and disclose information in support
of a proactive approach to data management and information
sharing in children's services. It is noted that all Child Link
users will also be information sharing entities under new Part 6A
of the Principal Act, other than the Secretary to the Department
of Education and Training and those users who are prescribed for
the purposes of administering the system, such as providing data
management functions.
Section 46K(2) places a limit of 3 registered early childhood
teachers with access to the Register at an approved education
and care service (as defined in new section 46A) or licensed
children's service (as defined in new section 46A) at any one
28
time. This will increase the integrity of the Child Link Register,
by entrusting access and use of information on the Register to a
limited number of professionals within an approved education
and care service or licensed children's care service, as the case
may be.
Section 46K(3) limits the number of Child Link users per
government or non-government school to 7. This includes
teachers or those engaged to provide health services in a
school. This will increase the integrity of the Child Link
Register, by entrusting access and use of information on
the Register to a limited number of professionals within a
school.
Section 46K(4) provides that if an authorisation to be a Child
Link user is no longer required then the person who is able to
give the authorisation must revoke the access.
New section 46L inserts delegation powers for specified
positions to allow, by instrument, powers, functions and duties
under new Part 7A to be explicitly devolved to persons employed
or engaged within the body to which the position relates.
This provision recognises the practicality of administering
statutory powers and functions by allowing formal delegation.
The relevant positions include--
• Secretary to the Department of Education and Training;
and
• the Chief Executive Officer of a council; and
• an approved provider of an approved education and care
service; and
• a licensee of a licensed children's service; and
• the Disability Services Commissioner; and
• the Principal Commissioner.
New section 46M provides that Child Link users may access,
use and disclose confidential information in the Register for
the purposes outlined in new Schedule 6, as well as in accordance
with new Part 6A as it applies to them. Schedule 6 provides the
purpose statement as it applies to each type of Child Link user
defined under new section 46J. For example, the overarching
purpose for which the Secretary to the Department of Education
and Training may access, use and disclose confidential
29
information from the Child Link Register is to identify children
who are not participating in services for which they may be
eligible and to assist in the provision of education, care and
services to them. Additionally, as discussed in relation to new
section 46K, Child Link users will generally be prescribed as
information sharing entities under new Part 6A, so the use and
disclosure of information taken from the Child Link Register
must be in accordance with the requirements of that Part.
New section 46N provides the Secretary to the Department
of Education and Training with the discretion (proactively
or on written request) to prevent access to all Child Link users
from accessing an entry, or part of an entry, on the Register
(e.g. current school of enrolment) with regard to particular
child, where access would--
• pose an unacceptable risk of harm to a person; or
• in all the circumstances where it would be otherwise
inappropriate.
An example of this provision in use may be where an alleged
family violence perpetrator is also authorised to access the
Register for certain purposes.
Section 46N(2) provides the Secretary to the Department of
Education and Training with the discretion (proactively or on
written request) to remove a Child Link user's access to the
Register, as well as remove access to a specific entry (or part
of an entry) on the Register, where access to the Register
would--
• pose an unacceptable risk of harm to a person; or
• in all the circumstances where it would be otherwise
inappropriate.
As with section 46N(1), this safeguard will allow access to and
information on the Child Link Register to be adapted on a case
by case basis, in order to mitigate the potential risk of harm to
the child via distribution of confidential information.
Section 46N(3) clarifies that the Secretary can restrict
information under new section 46N(1) and (2) either
proactively or on the written request of any person,
in accordance with any guidelines issued under new
section 46P.
30
Section 46N(4) clarifies that for the purposes of making a
request to restrict either access to an entry on the Child Link
Register or a Child Link user's access (under subsection (3)), a
person may disclose confidential information to the Secretary.
Section 46N(5) clarifies that the Secretary can remove access
to the Register for a specific entry or remove a Child Link
user's access for any period of time considered necessary.
This provision ensures that managing the risk of harm to any
person or child to which the Register relates remains paramount.
Section 46N(6) places obligations on Child Link users who
are authorised to grant authorisation to another person under
new section 46K(1) (for example, a principal under new
section 46K(1)(r), who authorises a teacher to access the
Child Link Register). These Child Link users must notify
the Secretary if the person granted authorisation ceases to
be a registered teacher or to hold a current working with
children assessment notice (as per the Working with Children
Act 2005), in order to maintain the integrity and efficacy of
the system.
New section 46O allows authorised persons (as defined in
subsection (3)) to provide de-identified information (taken from
the Child Link Register) to employees of, and persons engaged
by, the Secretary to Department of Education and Training and
the Secretary to the Department of Health and Human Services.
This information will assist government to better design, plan
and review policies, programs and services for children.
Section 46O(2) clarifies that while the resulting data set to
be used for designing, planning and reviewing government
programs will be de-identified, for the purposes of extracting
this information from the Child Link Register, the confidential
information would be identifying information.
Section 46O(3) defines authorised person (for the purposes
of accessing information to design, plan and review policies,
programs and services for children) as employed or engaged
by either the Secretary of the Department of Education and
Training or the Secretary of the Department of Health and
Human Services.
New section 46P limits existing rights for individuals to access
confidential information relating to them under relevant privacy
laws, by allowing the Secretary to refuse access to the Child Link
31
Register if the Secretary believes, on reasonable grounds, that
access to the information would increase a risk to the wellbeing
or safety of a child or group of children. In this section, relevant
privacy law is clarified to mean--
• Health Privacy Principle 6;
• Information Privacy Principle 6;
• the Privacy Act 1988 of the Commonwealth; or
• the Privacy Act 1988 of the Commonwealth applied as
a law of Victoria by another Act.
New section 46Q authorises a person to collect, use and disclose
confidential information in accordance with new Part 7A and
the regulations, despite anything to the contrary in any prescribed
law which displaces secrecy and confidentiality provisions
in other pieces of legislation as they relate to the Child Link
Register under new Part 7A, or in regulations prescribed for
the purposes of the section.
New section 46R extends the operation of the Privacy and Data
Protection Act 2014 to cover any Child Link user that is not
already covered by that Act. This provision will allow complaint
handling mechanisms available to individuals under Division 8 of
Part 3 to the Privacy and Data Protection Act 2014 to apply in
relation to complaints about an interference with the privacy of
that individual resulting from a Child Link user accessing the
Register for purposes other than an authorised purpose, or
disclosing information obtained from the Register in a manager
that is not authorised by Part 7A.
Division 5 of new Part 7A relates to guidelines issued for the
Child Link Register.
New section 46S provides that the Secretary may issue guidelines
in relation to the operation of new Part 7A for a range of matters,
including the recording of information on the Register, how
information is collected under new sections 46G and 46H and
the removal of access to the Register. The Guidelines will not
authorise or impose obligations in relation to the provision or, or
access to, information under Part 7A. Rather, the guidelines are
intended to enable the Secretary to establish a set of technical
business rules around the administration and operation of the
Register. This will assist Child Link users to understand the
32
operation of the Register in greater detail and maintain protocols
for proper use.
Section 46S(2) provides publication requirements on the
Secretary with regard to the Guidelines. The Secretary must,
as soon as possible after issuing the guidelines, publish the
guidelines on an appropriate Internet site, in recognition of
the most common and effective means of communicating the
guidelines publicly.
Section 46S(3) allows the Secretary the discretion to review and
amend the guidelines at any time. This will allow the guidelines
to be updated as the day to day operation of the Register becomes
apparent.
Section 46S(4) provides clarity that the guidelines issued
under this section are not a legislative instrument within the
meaning of the Subordinate Legislation Act 1994, which
means the requirements of that Act do not apply when making
the guidelines (such as a regulatory impact statement).
New section 46T provides an offence for unauthorised access to
the Register by a person who is not a Child Link user (as defined
in new section 46J) or a person who would otherwise have access
to the Register within Part 7A. This offence attracts a penalty of
60 penalty units, and in the case of a body corporate, 300 penalty
units.
Section 46T(2) provides for a defence of good faith and
reasonable care to the offence of unauthorised access to the
Register.
New section 46U provides an offence for access to the Register,
by an authorised person (being a Child Link user or a person who
would otherwise have access to the Register under new Part 7A),
other than in accordance with new Part 7A. For example, if a
Child Link user is accessing the Register for personal reasons
and not in accordance with the purposes provided for in new
Schedule 6, this offence would apply. This offence attracts a
penalty of 60 penalty units, and in the case of a body corporate,
300 penalty units.
Section 46U(2) provides for a defence of good faith and
reasonable care to the offence of access to the Register for
an unauthorised purpose.
33
New section 46V provides that an authorised person must not use
or disclose confidential information contained in the Child Link
Register otherwise than in accordance with Part 7A. This offence
attracts a penalty of 60 penalty units, and in the case of a body
corporate, 300 penalty units, providing for consistency with a
similar offence in the Family Violence Protection Amendment
(Information Sharing) Act 2017 and under new section 41ZK
of new Part 6A of the Principal Act (with regard to the sharing of
confidential information relating to children).
Section 46V(2) provides for a good faith and reasonable care
defence to the offence of unauthorised use or disclosure of
confidential information contained on the Child Link Register.
This defence provides for alignment with similar offences under
new Part 6A of the Principal Act, in addition to offences under
Family Violence Protection Amendment (Information
Sharing) Act 2017.
Section 46V(3) provides exclusions to the coverage of the
offence for unauthorised use and disclosure of confidential
information contained on the Child Link Register, with a range
of specific uses or disclosures of confidential information listed
to allow information to be shared without attracting a penalty.
Exclusions include, for example, a use or disclosure made by an
authorised person--
• with the consent of the person to whom the information
relates (to allow a prescribed information sharing entity
who receives confidential information under new
Part 6A to on-share the information to an entity that
is not prescribed under the regime); or
• to a court or tribunal in relation to legal proceedings.
Section 46V(4) defines authorised person to mean a Child Link
user (as defined in new section 46A) or a person who would
otherwise have access to the Child Link Register under new
Part 7A.
New section 46W provides an offence for an authorised person
who intentionally or recklessly uses confidential information
contained on the Child Link Register or information with regard
to a Child Link identifier. This offence attracts a maximum
penalty of 600 penalty units or 5 years imprisonment (or both)
for a natural person or 3000 penalty units for a body corporate,
providing for consistency with a similar offence in new Part 5A
34
of the Family Violence Protection Act 2008, as inserted by
the Family Violence Protection Amendment (Information
Sharing) Act 2017 and new section 41ZL of Part 6A to this Bill,
with regard to the sharing of confidential information relating
children.
Section 46W(2) provides exclusions to the coverage of the
offence for intentional or reckless unauthorised use and
disclosure of confidential information contained on the Child
Link Register, with a range of specific uses or disclosures of
confidential information listed to allow information to be shared
without penalty. These exclusions mirror the exclusions
provided in new section 46V.
Section 46W(3) defines authorised person to mean a Child
Link user (as defined in new section 46A) or a person who
would otherwise have access to the Child Link Register under
new Part 7A.
New section 46X provides that the Minister must initiate
an independent review of new Part 7A within 2 years of the
commencement of the Part. This review period will allow
new Part 7A to be reviewed at the same time as new Part 6A
of the Principal Act (see new sections 41ZN and 41ZO),
as well as the family violence information sharing scheme
established in new Part 5A of the Family Violence Protection
Act 2008 by the Family Violence Protection Amendment
(Information Sharing) Act 2017.
The review must include consideration of any adverse effects
of the Child Link Register and may include recommendations
on any matter addressed in the review. Further, the Minister
must cause a copy of the reviews to be laid before Parliament
within 6 months after the end of the review period, to allow an
appropriate level of reporting on the operation of the scheme.
Section 46Y provides the discretion for the Secretary to create
an entry in the Child Link Register for, and to allocate a Child
Link identifier to, each child (under 18 years of age) in the State
(before the commencement of new Part 7A). As with new
section 46B, these children include those--
35
• born in Victoria; and
• who accessed, enrolled in, registered or otherwise
engaged with relevant services before the
commencement date; and
• who were registered for home schooling before the
commencement date; and
• in respect of whom a child protection order was made
before the commencement date.
Section 46Y(2) clarifies that information provided to the
Secretary by the entities listed in new section 46I can be
used in order to create entries on the Register and verify the
accuracy of those entries for existing children in the State.
Section 46Y(3) defines commencement date to mean the day
on which Part 7A comes into operation (on proclamation).
Section 46Z provides that Child Link users cannot access
and use the Child Link Register until a day appointed by the
Governor in Council. This provision will allow Child Link
users to be brought into the Register in a staged manner,
primarily to manage the administration of the system in
advance of the Register becoming operational.
Section 46Z(2) provides that the Governor in Council may,
after recommendation by the Minister, publish an Order in the
Victorian Government Gazette which appoints the day (being a
day no later than 31 December 2021) that a class of Child Link
user can access and use the Register (for the purposes listed in
new Schedule 6).
Section 46Z(3) clarifies that all Child Link users will have access
to and use of the Child Link Register by 31 December 2021.
Clause 11 inserts Division 1 of Part 8 (new sections 46ZA and 46ZB),
relating to offences by bodies corporate, and new section 46ZC,
while relates to the Regulations.
Section 46ZA clarifies that the actions of an employee, agent
or officer of a body corporate, taken on behalf of the body
corporate, are taken, for the purposes of the Principal Act,
to constitute conduct engaged in by the body corporate.
36
New section 46ZB imposes accessorial liability to officers of
bodies corporate that commit offences under new Part 6A
and 7A. The offences will only apply to officers that have a
specific role and possess significant authority and influence
over the body corporate.
Section 46ZB(2) specifies that the offences to which section
46ZB(1) applies, namely new sections 41ZK(1), 41ZL(1),
41ZM(1), 46T, 46U(1), 46V(1) and 46W(1). Given that
that these offences are capable of being committed by bodies
corporate, it is necessary to outline how these offences apply
to bodies corporate and their officers.
Section 46ZB(3) provides that an officer of a body corporate
may also rely on the defences that would be available to the
body corporate (for example, information being used or
disclosed in good faith and with reasonable care under new
section 41ZK(2)). This defence aligns with defences to using
or disclosing information under both Division 5 of new Part 6A
and Division 6 of new Part 7A.
Section 46ZB(4) clarifies that an officer of a body corporate
can commit an offence under Division 5 of new Part 6A or
Division 4 of new Part 7A whether or not the body corporate
has been prosecuted for, or found guilty of, an offence under
those provisions.
Section 46ZB(5) clarifies that--
• body corporate adopts the same meaning as
"corporation" in section 57A of the Corporations
Act of the Commonwealth; and
• officer adopts the same meaning as section 9 of the
Corporations Act of the Commonwealth, or otherwise,
a person who is concerned in, or takes part in, the
management of the body corporate.
Section 46ZB(6) clarifies that sections 323 and 324 of the
Crimes Act 1958 (provisions relating to the commissioning
of offences) are not affected by the application of new
section 46ZB.
New section 46ZC provides the ability for the Governor in
Council to make regulations with respect to new Part 6A and
new Part 7A.
37
Section 46ZC(2), without limiting the scope of the regulation
making power, allows for a range of matters to be prescribed
in regulation in order to flexibly administer new Part 6A.
This includes--
• determining information sharing entities and restricted
information sharing entities (including categories
of restricted information sharing entities) that are
permitted to collect, use or disclose information under
new Part 6A; and
• prescribing restrictions and requirements on the type
of confidential information that can be shared by
prescribed information sharing entities, as well
as prescribing specific functions and powers of
individuals operating within an information sharing
entity or restricted information sharing entity, as the
case may be.
These provisions will provide the flexibility to prescribe
information sharing requirements on a case by case basis,
which may be necessary to appropriately balance the promotion
of child wellbeing and safety.
Section 46ZC(3) contributes to the flexible application of
new Parts 6A and 7A, by providing that regulations may be--
• of general or limited application; and
• differ according to difference in time, place or
circumstances; and
• confer discretionary authority or impose a duty on
specified persons or bodies, or classes of persons or
bodies; and
• leave any matter or thing to be, from time to time,
determined applied, dispense with ore regulated by
a specified person.
Section 46ZC(4) sets out examples of persons or classes of
persons that may be prescribed, including nurses, police officers,
teachers, psychologists and medical practitioners.
Section 46ZC(5) clarifies that regulations made with respect to
prescribing information sharing entities or restricted information
sharing entities can include bodies or a class of body that has a
function that requires the handling of confidential information.
38
This includes, for example, community service organisations
funded by the State government to provide services to
individuals.
Section 46ZC(6) provides that regulations which prescribe
persons or bodies to be information sharing entities or restricted
information sharing entities, or specific persons employed by or
parts of such entities, may prescribe a person or body specified
in new section 41T, such as courts and tribunals. Such bodies
can be prescribed only if the prescription is in respect of a
function other than a judicial or quasi-judicial function involving
the handling of confidential information.
Section 46ZC(7) enables an information sharing entity or a
restricted information sharing entity to disclose information
to a person or an entity that is outside the State (such as the
Commonwealth) where the relevant thresholds are satisfied
(i.e. promoting the wellbeing and safety of children). This will
allow new Part 6A to operate throughout the country without
jurisdictional impediment.
Section 46ZC(8) clarifies that nothing in new Part 6A or the
regulations imposes a requirement on a person or body who is
not subject to the law of the State.
Clause 12 substitutes the heading to section 47 of the Principal Act with
"General regulation making power".
Clause 13 inserts new section 49 into the Principal Act, to clarify that
the Secretary is not required to take any action to establish and
maintain the Child Link Register (see new section 46B) or create
a Child Link entry and allocate a Child Link identifier (see new
section 46C) before 31 December 2021. This provision will
ensures that there is sufficient time for the Child Link Register to
become operational before the Secretary's powers are exercised.
Subsection (2) clarifies that while the Secretary is not bound to
exercise powers with regard to the Child Link Register under
subsection (1), the Secretary is not prevented from taking any
such action before 31 December 2021.
Clause 14 inserts new Schedule 6, which provides the purpose of access to
the Child Link Register, and of use and disclosure of information
on the Register, for Child Link users that are defined under new
section 46J. Read together with new sections 46K and 46M, this
provision clarifies that Child Link users are only permitted to
39
access, use and disclose confidential information on the
Child Link Register for the purposes listed in new Schedule 6
(for example, a registered early childhood teacher at an approved
education and care service, whose purpose for accessing the
Child Link Register is to provide education, care and related
services to children enrolled at the education and care service
(noting that they would still be able to share information
externally if prescribed under new Part 6A, or internally within
their organisation for the purposes provided in Schedule 6).
Clause 15 explicitly displaces a range of specified provisions within
legislation to ensure that information sharing under new Part 6A
and the Child Link scheme under new Part 7A of the Principal
Act can operate without impediment by existing obligations in
the Victorian privacy framework.
Part 3--Consequential amendments
Division 1--Amendment of Children, Youth
and Families Act 2005
Clause 16 amends the definition of information holder under the Children,
Youth and Families Act 2005 to include an information sharing
entity or restricted information sharing entity that is prescribed
under new Part 6A of the Principal Act.
Clause 17 repeals sections 35, 36 and 37 of the Children, Youth
and Families Act 2005. These sections presently provide
authority for the Secretary to the Department of Health and
Human Services or a community-based child and family
service (as defined by section 3 of that Act) to consult with
"community services", "service agencies", "information holders"
and, in the case of a community-based child and family service,
the Secretary, and to disclose and receive information upon
receipt of a report or referral under Part 3.2 of that Act. It is
intended that all bodies currently defined to be a community
service (including a community-based child and family service),
a service agency or an information holder will be prescribed to
be information sharing entities under new Part 6A.
The effect of sections 35 and 37 is that different information
sharing provisions apply at different phases of child protection
involvement and they significantly add to the complexity and
restrictive nature of information sharing under current legislation.
40
Further, the Bill provides for the same good faith protections
as set out in section 37 of the Children, Youth and Families
Act 2005 (see new sections 41ZB and 41ZK(2) in this Bill).
Accordingly, it is considered that these provisions will be
redundant when the information sharing provisions provided
for in new Part 6A commence.
Clause 18 substitutes section 192 of the Children, Youth and Families
Act 2005 to provide authority for the Secretary and a protective
intervener (defined under that Act as the Secretary to the
Department of Health and Human Services (DHHS) or a police
officer) to request, use and disclose information to, or receive
information from--
• the Secretary; or
• another protective intervener; or
• an information holder; or
• a service agency; or
• a person in charge of, or employed in, a registered
community service; or
• an individual--
if the Secretary or protective intervener believes on reasonable
grounds that the information, or use or disclosure of information
is required for the performance of their duties or functions, or the
exercise of powers under that Act.
Subsection (2) provides authority for the persons and entities
listed in subsection (1) to provide information to the Secretary
or a protective intervener when it has been requested under
section 192(1) of the Children, Youth and Families Act 2005.
Subsection (3) protects disclosures made in good faith under
section 192 of the Children, Youth and Families Act 2005.
This provision ensures that disclosures in good faith do not
constitute unprofessional conduct or a breach of professional
ethics, do not raise any type of liability and will not constitute
a contravention of new Part 6A of the Principal Act.
Further to this, the note at the foot of subsection (3) provides
reference to the information sharing scheme under new Part 6A
of the Principal Act, including the obligations of information
sharing entities prescribed under that scheme.
41
Clause 19 substitutes section 193 of the Children, Youth and Families
Act 2005. This section applies to a community-based child and
family service (a community service registered in the category of
community-based child and family service under section 46 of
that Act). As section 36 of the Children, Youth and Families
Act 2005 is proposed for repeal (see clause 16 of this Bill), this
amendment provides authority for a community-based child and
family service to consult and share information when it receives
a referral under Part 3.2 of that Act (regarding concern about the
wellbeing of a child).
Subsection (2) provides the authority for a community-based
child and family service to consult with the Secretary to the
Department of Health and Human Services, a community service,
a service agency and an information holder in order to assess the
risk to a child.
Subsection (3) provides the authority for a community-based
child and family service, in determining the most appropriate
service to provide assistance to a child, a family of a child or a
mother of an unborn child, may consult with the Secretary to
the Department of Health and Human Services, a community
service or a service agency.
Subsection (4) authorises the disclosure and receiving of
information about a child or family from permitted bodies when
a community-based child and family service consults under new
section 193 of the Children, Youth and Families Act 2005.
Subsection (5) provides that authority for the Secretary to the
Department of Health and Human Services, a community service,
a service agency or an information holder to disclose information
about a child or family if consulted by a community-based child
and family service under new section 193.
Subsection (6) protects disclosures made in good faith under new
section 193 of the Children, Youth and Families Act 2005.
This provision ensures that disclosures in good faith do not
constitute unprofessional conduct or a breach of professional
ethics, do not raise any type of liability and will not constitute a
contravention of section 141 of the Health Services Act 1988,
section 346 of the Mental Health Act 2014 and new Part 6A of
the Principal Act.
42
Clause 20 substitutes section 195 of the Children, Youth and Families
Act 2005. The section now provides that the Secretary may
authorise a direction to an information holder (other than a
police officer) where it is believed, on reasonable grounds, that
the information holder has information that is relevant to the
protection or development of a child in respect of whom a
protection order, therapeutic treatment order or a therapeutic
treatment (placement) order is in force, or who is subject to--
• a protective intervention report; or
• a report under section 185 (report on child in need of
therapeutic treatment); or
• a protection application; or
• an application for a therapeutic treatment order; or
• an application for a therapeutic treatment (placement)
order; or
• an irreconcilable difference application.
Clause 21 makes a minor amendment to section 196(1) of the Children,
Youth and Families Act 2005 to omit reference to a protection
order, as this has been included in new section 195 of that Act as
a ground under which the Secretary to the Department of Health
and Human Services may authorise a direction to disclose.
Clause 22 makes a minor amendment to section 205(2)(a), and repeals
section 205(2)(b) and (3), of the Children, Youth and Families
Act 2005.
These sections provide limited authority to the Secretary to
the Department of Health and Human Services to disclose
information as part of an investigation under that Act.
They are historical provisions that were carried forward from
the now repealed Children and Young Persons Act 1989
and pre-date contemporary community expectations about the
assistance and protection afforded to vulnerable children, as
well as electronic record keeping and information management
approaches under current law. The effect of these sections is
that there are different information sharing provisions at different
phases of child protection involvement and they significantly
add to the complexity and restrictive nature of information
sharing under current legislation.
43
Additionally, in contemporary practice, it is expected that, even
where a protective intervener (the Secretary or a police officer,
as defined by section 181 of the Children, Youth and Families
Act 2005) investigates and decides not to make a protection
application, action will be taken to address any identified
concerns for the wellbeing of the child, such as referral to another
service and to assist parents to address any protective concerns
identified.
Further, the content of sections 205 and 206 was included in the
now repealed Children and Young Persons Act 1989, at the
same time as the provisions establishing a central register of
children in need of protection, and formed part of the same
record keeping scheme. The provisions relating to the central
register have now been repealed and provisions in relation to the
investigation of therapeutic treatment reports were subsequently
modelled on sections 205 and 206. Accordingly, these sections
have been repealed.
Clause 23 repeals section 206(2) and (3) of the Children, Youth and
Families Act 2005. The reason for this amendment is set out
in the notes for clause 21 in this explanatory memorandum.
Clause 24 substitutes the note at the foot of section 207(2) of the Children,
Youth and Families Act 2005 to insert a reference to Part 6A
of the Principal Act. Section 207(2) provides that it is an offence
for a police officer to disclose any information contained in a
protection report to a person other than another protective
intervener. The footnote makes it clear that a police officer has
use and disclosure obligations under Part 6A of the Principal Act,
so if information contained in a protection report may be relevant
to support services to provide tailored programs to promote the
wellbeing and safety of children, that information may be
disclosed under Part 6A.
Clause 25 makes a minor amendment to section 210(2)(a) and repeals
section 210(2)(b) of the Children, Youth and Families
Act 2005. The reason for this amendment is set out in the
note for clause 21 in this explanatory memorandum.
Clause 26 repeals section 211(2) of the Children, Youth and Families
Act 2005. The reason for this amendment is set out in the note
for clause 21 in this explanatory memorandum.
44
Clause 27 repeals section 211(3) of the Children, Youth and Families
Act 2005. The reason for this amendment is set out in the note
for clause 21 in this explanatory memorandum.
Division 2--Amendment of Education and
Training Reform Act 2006
Clause 28 inserts new section 4.9.1(3) into the Education and Training
Reform Act 2006, to clarify that the Victorian Registration and
Qualifications Authority may permit details of students registered
for home schooling under Part 4.3 of that Act to be disclosed, in
accordance with new Part 6A and new Part 7A.
Clause 29 amends section 5.3A.14 of the Education and Training Reform
Act 2006 to clarify that the Secretary can use or disclose the
Victorian student number allocated to a student in accordance
with new Part 7A. The purpose of this is to access certain types
of data, such as enrolment data, associated with the Victorian
student number, for the purposes of the Child Link Register
under new Part 7A of the Principal Act.
Division 3--Amendment of Health Records Act 2001
Clause 30 inserts a new section 14C in the Health Records Act 2001 which
displaces a number of Health Privacy Principles (HPPs).
Subsection (1) provides that for the purposes of new Parts 6A
and 7A of the Principal Act, there will be no requirement for
an information sharing entity or a restricted information sharing
entity, or a Child Link user or the Secretary to the Department
of Education and Training, to collect health information
directly from an individual (HPP 1.3). The displacement of this
principle goes to the heart of these reforms, being that consent
to share information is subordinate to the promotion of a child's
wellbeing and safety (as provided for under the principles in new
section 41U).
With regard to Child Link users or the Secretary to the
Department of Education and Training under Part 7A, it would
not be administratively practical to collect health information
about an individual only from that individual. Rather, specified
categories of health information will be drawn from existing
services and recorded on the Child Link Register, as has been
discussed in new Part 7A.
45
Subsection (2) provides that for the purposes of new Part 6A of
the Principal Act, there will be no requirement for an information
sharing entity or a restricted information sharing entity to make
an individual aware where their health information has been
collected from a third party (HPP 1.5). As with subsection (1),
the displacement of this principle goes to the heart of these
reforms, being that consent to share information is subordinate
to the promotion of a child's wellbeing and safety.
Subsection (3) provides that nothing in HPP 1.5 or any code
of practice modifying the application of HPP 1.5 applies to the
collection of health information by a Child Link user or the
Secretary to the Department of Education and Training for the
purposes of new Part 7A. This provision clarifies that it would
not be administratively practical for Child Link users or the
Secretary to the Department of Education and Training to make
an individual aware where their health information has been
collected from a third party.
Subsection (4) provides that for the purposes of new Part 7A
of the Principal Act, there will be no requirement for the
Secretary to the Department of Education and Training when
health information is deleted (in accordance with HPP 4.2),
to make a written note of specified information (HPP 4.3)
(such as the name of the individual to whom the health
information related, the period covered or the date on which
was deleted). This amendment ensures that the Secretary's
ability to delete health information about a child on the Register
under new section 46D(2) is unimpeded, without the need to
made a written note as per the requirements of HPP 4.3.
Subsection (5) clarifies that when health information is collected,
disclosed or used by an information sharing entity or a restricted
information sharing entity under new Part 6A, or by a Child
Link user or the Secretary to the Department of Education and
Training under new Part 7A, nothing in an HPP or a code of
practice applies to that information, to the extent that the HPP
requires the consent of the person to whom the information
relates. Read in conjunction with subsections (1) and (2),
this ensures that there will be no requirement for information
sharing entities under new Part 6A or Child Link users under
new Part 7A to obtain consent before collecting confidential
health information for the purpose of administering these
reforms.
46
Subsection (6) clarifies that for the purposes of new section 14C
in the Health Records Act 2001, Child Link user, information
sharing entity and restricted information sharing entity have the
same meaning as defined under the Principal Act.
Division 4--Amendment of Privacy and
Data Protection Act 2014
Clause 31 inserts a new section 15B in the Privacy and Data Protection
Act 2014 which displaces a number of Information Privacy
Principles (IPP).
Subsection (1) provides that nothing in IPP 1.4 or any code of
practice modifying the application of IPP 1.4 applies to the
collection of personal information by an information sharing
entity or restricted information sharing entity under new Part 6A,
or a Child Link user or the Secretary to the Department of
Education and Training under new Part 7A.
This ensures that for purposes of new Part 6A of the Principal
Act, there will be no requirement for an information sharing
entity or restricted information sharing entity to collect personal
information directly from an individual. The displacement of
this principle goes to the heart of new Part 6A of the Principal
Act, being that consent to share information is subordinate to
the promotion of a child's wellbeing and safety (as provided for
under the principles in new section 41U).
With regard to Child Link users or the Secretary to the
Department of Education and Training under new Part 7A,
it would not be administratively practical to collect personal
information about an individual only from that individual.
Rather, specified categories of personal information will be
drawn from existing services and recorded on the Child Link
Register, as has been discussed in relation to new Part 7A.
Subsection (2) provides that nothing in IPP 1.5 or any code of
practice modifying the application of IPP 1.5 applies to the
collection of personal information by an information sharing
entity or restricted information sharing entity for the purposes
of promoting the wellbeing and safety of children.
47
This ensures that for purposes of new Part 6A of the Principal
Act, there will be no requirement for an information sharing
entity or restricted information sharing entity to make an
individual aware where their information has been collected
from a third party, to the extent that the application of or
compliance with IPP 1.5 would be contrary to the promotion
of the wellbeing or safety of a child or group of children.
The displacement of this principle goes to the heart of new
Part 6A of the Principal Act, being that consent to share
information collected from a third party is subordinate only
where it is contrary to the promotion of a child's wellbeing and
safety (as provided for under the principles in new section 41U).
Subsection (3) provides that nothing in IPP 1.5 or any code of
practice modifying the application of IPP 1.5 applies to the
collection of personal information by a Child Link user or the
Secretary to the Department of Education and Training for the
purposes of new Part 7A. This provision clarifies that it would
not be administratively practical for Child Link users or the
Secretary to the Department of Education and Training to make
an individual aware where their personal information has been
collected from a third party.
Subsection (4) states that nothing in IPP 10.1 (collection of
sensitive information must not take place unless requirements
are met, including consent or requirements under law) or any
applicable code of practice modifying the application of
IPP 10.1 applies to the collection of sensitive information by
an information sharing entity or restricted information sharing
entity. As with subsection (1), the purpose of this principle
being displaced is to clarify promotion of children's wellbeing
and safety as taking precedence over general privacy
considerations.
This subsection also clarifies that IPP 10.1 does not apply to
Child Link users or the Secretary to the Department of Education
and Training under new Part 7A, to ensure that the administration
of Part 7A is unimpeded.
Subsection (5) clarifies that when personal or sensitive
information is collected by an information sharing entity or a
restricted information sharing entity under new Part 6A, or a
Child Link user or the Secretary to the Department of Education
and Training under new Part 7A of the Principal Act, nothing
in an IPP or a code of practice applies to that information, to
48
the extent that the IPP required the consent of the person to
whom the information relates. Read in conjunction with
subsections (1) and (2), this ensures that there will be no
requirement for information sharing entities or Child Link
users to obtain consent before collecting confidential personal
or sensitive information for the purpose of administering these
reforms.
Subsection (6) clarifies that for the purposes of new section 15B
in the Privacy and Data Protection Act 2014, Child Link user,
information sharing entity and restricted information sharing
entity have the same meaning as defined under new Part 6A of
the Principal Act.
Division 5--Amendment of Health Services Act 1998
Clause 32 Section 141 of the Health Services Act 1998 relates to the use
of confidential health services information, including an offence
for use outside of specified circumstances. This amendment
inserts new section 141(3)(gd) and (ge), to reflect that the
restriction on the use of health service information does not
apply to lawful disclosures to an information sharing entity or
restricted information sharing entity under new Part 6A, or to a
Child Link user or the Secretary to the Department of Education
and Training under new Part 7A, as this type of information may
be relevant for the purpose of promoting the wellbeing or safety
of children or administering the Child Link Register.
Division 6--Amendment of Freedom of Information Act 1982
Clause 33 repeals the definition of information sharing entity from
section 5(1) of the Freedom of Information Act 1982.
This definition is to be inserted in the Family Violence
Protection Act 2008 by the Family Violence Protection
Amendment (Information Sharing) Act 2017. However, as
this term will also need to be defined to include information
sharing entities within the meaning of new Part 6A of
the Principal Act, it is proposed to omit the definition
on commencement of the Family Violence Protection
Amendment (Information Sharing) Act 2017 and insert
a revised definition which encompasses both information
sharing schemes at a later date.
49
Clause 34 inserts a new section 27(2)(ac) into the Freedom of Information
Act 1982. Section 27(2)(ac) provides that an agency or Minister,
in notifying an applicant of decision under Part III of that Act,
is not required to confirm or deny the existence of any document,
if confirming or denying the existence of that document would
involve the unreasonable disclosure of information relating to
the personal affairs of any person because it would increase the
risk to the safety of a child or group of children. This provision
ensures information collected under Part 6A of the Principal
Act (and the implications for child wellbeing and safety) takes
precedence over the release of information in these
circumstances.
Clause 35 amends the exempt documents provisions in the Freedom of
Information Act 1982, meaning a document, the disclosure of
which would involve the unreasonable disclosure of information
relating to the personal affairs of any person. Clause 34 amends
that Act to include new section 33(2AC) as a basis upon which
an agency (that is an information sharing entity or restricted
information sharing entity), or a Minister, may decide to exempt
a document under section 33(1) of the Freedom of Information
Act 1982, if its disclosure increases the risk to the safety of a
child or group of children. This provision is consistent with
confidential information collected under Part 6A of the Principal
Act (and the implications for child wellbeing and safety) being
held to a higher standard than the release of information in the
interests of privacy.
Subsections (3) and (4) provide that section 33(9) of the
Freedom of Information Act 1982 is amended to include
definitions of--
• information sharing entity, to clarify the consistent use
of the term as part of both new Part 6A of the Principal
Act and the Family Violence Protection Act 2008; and
• restricted information sharing entity, to clarify that this
has the same meaning given in Part 6A of the Principal
Act.
Clause 36 amends the decision powers (after conducting a review) of
the Information Commissioner under section 49P(3) of
Freedom of Information Act 1982. This amendment inserts
new section 49(3B) to provide that the Commissioner may
make a decision in terms that neither confirm nor deny the
50
existence of any document, if the decision being reviewed
was made on the grounds that disclosure would involve
an unreasonable disclosure of personal affairs that would
increase the risk to the safety of a child or group of children.
This provision is consistent with confidential information
collected under Part 6A of the Principal Act (and the implications
for child wellbeing and safety) being held to a higher standard
than the release of information in the interests of privacy.
Clause 37 amends the findings power of the Victorian Civil and
Administrative Tribunal under section 56 of the Freedom
of Information Act 1982. This amendment inserts new
section 56(6) to provide that the Victorian Civil and
Administrative Tribunal may made a decision in terms
that neither confirm nor deny the existence of a document if,
under an application for review, disclosure of the document
would involve an unreasonable disclosure of personal affairs
that would increase the risk to the safety of a child or children.
This provision is consistent with confidential information
collected under Part 6A of the Principal Act (and the implications
for child wellbeing and safety) being held to a higher standard
than the release of information in the interests of privacy.
Division 7--Amendment of other Acts
Clause 38 inserts new section 124(3) into the Personal Safety Intervention
Orders Act 2010, to clarify that the restriction on the publication
of proceedings in the Magistrates' Court does not apply to a
disclosure made by an information sharing entity or a restricted
information sharing entity for the purposes of new Part 6A of
the Principal Act. This provision will allow the sharing of
confidential information relating to a child's wellbeing and safety
by prescribed entities under new Part 6A, regardless of whether
the information being within the court proceeding would
otherwise prevent its disclosure under this section of the
Personal Safety Intervention Orders Act 2010. For example,
it would be relevant for certain practitioners to be aware of any
personal safety intervention orders made by a parent or family
member against another person, in order to plan for the protection
of the child and promotion of their wellbeing and safety.
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Clause 39 inserts section 48LB(2)(gb) into the Sentencing Act 1991,
to clarify that the confidential information obtained as a result
of electronic monitoring of an offender under an electronic
monitoring requirement (as part of a monitored condition subject
to a community corrections order) can be used and disclosed by
an information sharing entity or a restricted information sharing
entity for the purposes of new Part 6A of the Principal Act.
This provision will allow the sharing of confidential information
relating to a child's wellbeing and safety by prescribed entities
under new Part 6A, regardless of whether the information would
otherwise be prevented from being shared under this section of
the Sentencing Act 1991 (for example, when an offender
associated with a child breaches a place or area exclusion
condition and this is captured through electronic monitoring).
Clause 40 inserts section 43(5) into the Victims of Crime Assistance
Act 1996, to clarify that information restricted from publication
by a Victims of Crime Assistance Tribunal order (on the basis
that it is in the public interest), does not prevent the disclosure
of that information by an information sharing entity or a
restricted information sharing entity for the purposes of new
Part 6A of the Principal Act. Evidence submitted to a Tribunal
regarding a primary, secondary or related victim of a crime
(which may be a child or any person) may include activities
undertaken to promote the safety, wellbeing and recovery of the
victim, including assistance claimed for counselling, medical
expenses, safety-related expenses and distress. This information
is likely to be relevant to promoting the wellbeing or safety of a
child, particularly if the child is a victim of crime or living with a
victim of crime.
Part 4--Repeal of amending Act
Clause 41 provides that this Bill will be repealed on 31 December 2020.
The note at the foot of this clause clarifies that the repeal of the
Bill will not affect the continuing operation of the amendments
made by it, as per section 15(1) of the Interpretation of
Legislation Act 1984.
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