Wednesday, 15 May 2024

Bills

Victorian Institute of Forensic Medicine Bill 2024

Statement of compatibility

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:18): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Victorian Institute of Forensic Medicine Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006, (the Charter), I make this Statement of Compatibility with respect to the Victorian Institute of Forensic Medicine Bill 2024.

In my opinion, the Victorian Institute of Forensic Medicine Bill 2024, as introduced to the Legislative Assembly, is compatible with human rights as set out in the Charter. I base my opinion on the reasons outlined in this statement.

Overview

The Bill seeks to repeal and replace the Victorian Institute of Forensic Medicine Act 1985 (VIFM Act) to establish the Victorian Institute of Forensic Medicine (VIFM) as a public sector entity that provides high-quality forensic and human tissue services, teaching and training in the field of forensic services, and undertakes and supports research. In 2023, the Government conducted a review of the VIFM Act to ensure that VIFM remains well positioned to continue to provide best-practice services. The Bill addresses the findings of the review.

Human Rights Issues

The Bill engages the following human rights:

• privacy and reputation (section 13)

• freedom of thought, conscience, religion and belief (section 14)

• cultural rights of Aboriginal communities (section 19)

• protection of families and children (section 17)

• right to a fair hearing (section 24)

• rights in criminal proceedings (section 25)

The right to privacy and reputation

Section 13 of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with, and not to have their reputation unlawfully attacked. An interference with the right to privacy and reputation does not amount to a limitation on that right if it is lawful and not arbitrary. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed.

The Bill authorises VIFM to use any information it holds about an individual when conducting teaching and training, for the purposes of conducting its own research, or to support other entities’ research or policy development where this aligns with VIFM’s objects. This may include information obtained, for example, during forensic medical investigations or clinical forensic medical examinations.

To safeguard the right to privacy, VIFM will only be authorised to use information in its research, or to disclose information to other entities, if doing so is not likely to prejudice a coronial investigation, criminal investigation, or a criminal proceeding. Before VIFM uses or discloses information for these purposes, if the information relates to a coronial investigation, VIFM will be required to notify the State Coroner of the proposed use or disclosure. Similarly, if the information relates to a criminal investigation or criminal proceeding, VIFM must notify the Chief Commissioner of Police. The Bill requires VIFM to provide the State Coroner and/or the Chief Commissioner with 21 days to provide advice about whether they reasonably consider that the use or disclosure of information is likely to prejudice an investigation or proceeding, and VIFM must have regard to any advice received. In addition to these requirements, if VIFM is seeking to disclose information to another entity, VIFM must enter into a written agreement with the entity it is sharing the information with to limit the other entity’s use of the information to the purposes specified in the agreement, and require that these purposes be consistent with VIFM’s objects as established by the Bill. The agreement must also provide that the entity’s use of the information must not likely prejudice any coronial or criminal investigation or any criminal proceeding that has been or may be commenced.

Further, the Bill does not limit the application of the Health Records Act 2001, Privacy and Data Protection Act 2014, Victorian Data Sharing Act 2017 or other relevant legislation, which will continue to apply.

For these reasons, I consider that any interference with privacy is both lawful and not arbitrary, and therefore does not limit the right.

The right to freedom of thought, conscience, religion and belief

Section 14 of the Charter provides that a person has the right to freedom of thought, conscience, religion and belief. This includes the ability to have or adopt a belief and the freedom to demonstrate that person’s religion or belief in worship, observance, practice and teaching, whether that be individually or as part of a community, in public or in private.

The Bill’s principles promote this right, by providing that in performing a function or exercising a power, a person should have regard, as far as possible in the circumstances, to the cultural beliefs of persons affected by events to which VIFM’s work relates, and the diverse cultural needs of Aboriginal communities, including the importance of self-determination for Aboriginal people, and their connection to culture, family community and Country.

The inclusion of the phrase ‘as far as possible in the circumstances’ recognises that in delivering its services, VIFM may not always be able to take into account a person’s cultural beliefs, nor is this always appropriate, for example, where a person claims that a roadside toxicology test should not be conducted due to their cultural beliefs. For this reason, I consider that the Bill does not limit this right.

The protection of families and children

Section 17(1) of the Charter provides that families are the fundamental group unit of society and are entitled to be protected by society and the State. Section 17(2) provides that every child has the right, without discrimination, to such protection as in the child’s best interests and is needed by the child by reason of being a child. Despite the Charter not defining the term ‘family’, the term is given a broad interpretation to reflect the diversity of families living in Victoria, as raised in the Charter’s explanatory memorandum.

The Bill promotes the protection of families and children. It provides that in performing a function or exercising a power, a person should have regard, as far as possible in the circumstances, to the importance of recognising the significant nature of the events to which the Institute’s services relate and the need to be sensitive and responsive to persons affected by those events. This principle promotes the protection of families and children by recognising the sensitive nature of the work VIFM conducts and the need to be responsive to persons affected, including family members.

The Bill provides that one of VIFM’s functions is to investigate, assess and initiate responses in respect of the health of a parent, or the health and safety of a living sibling, of a deceased child whose death is a reviewable death. In performing this function, VIFM will have the power to consult families of deceased children and other persons, including health service providers, to assess whether a family requires health and support services. VIFM will also have the power to refer the family of the deceased child to health and support services. These functions and powers promote the protection of families and children, as the communication of any discoveries relating to genetic diseases, for example, would protect the wellbeing of living siblings and/or parents of the deceased child.

The Bill also authorises VIFM to assess whether a report under section 183 of the Children, Youth and Families Act 2005 should be made in relation to any living siblings of a deceased child, make such a report and advise the State Coroner that a report has been made. These powers ensure VIFM can comply with its obligations to report to a ‘protective intervener’ if VIFM considers on reasonable grounds that a child is in need of protection.

Cultural rights

Section 19(1) of the Charter provides that all persons with a particular cultural, religious, racial, or linguistic background must not be denied the right, in community with others of the same background, to enjoy their culture, to declare and practise their religion, and to use their language.

Section 19(2) extends this protection by recognising the distinct cultural rights held by Aboriginal people. This includes not being denied the right to right to enjoy their identity and culture, the right to maintain language and kinship ties, and the right to maintain their spiritual, material and economic relationship with the land, waters and other resources which they have a connection under traditional laws and customs.

The Bill promotes cultural rights by providing that in performing a function or exercising a power, a person should have regard, as far as possible in the circumstances, to respecting the cultural beliefs of persons affected by the events to which the Institute’s services relate, and to recognising the diverse needs of Aboriginal communities, including the importance of self-determination and connection to culture, family, community and Country.

The right to a fair hearing

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to a fair and public hearing. A fair hearing includes a right of unimpeded access to courts, an expeditious hearing, rights to legal advice and representation, and the privilege against self-incrimination. The right to a public hearing originates from the principle of open justice, to allow for public scrutiny of courts and tribunals, maintaining impartiality, and safeguarding against abuses of power.

The Bill authorises VIFM to use information during teaching and training, use information for its own research, and disclose information to another entity in certain circumstances. Some of the information VIFM may seek to use or disclose will relate to coronial or criminal investigations, or criminal proceedings.

The Bill’s safeguards around information use and disclosure limit any potential impact on the right to a fair hearing. The Bill provides that VIFM may only use information for its own research, or disclose information to another entity for the purposes of research or policy development, if such use or disclosure is not likely to prejudice a coronial investigation, criminal investigation, or criminal proceeding that has been or may be commenced. Where VIFM proposes to use or disclose information related to a coronial investigation, VIFM must notify the State Coroner of the proposed use or disclosure. Similarly, where VIFM proposes to use or disclose information related to a criminal investigation or criminal proceeding, the Bill requires VIFM to notify the Chief Commissioner of Police of the proposed use or disclosure.

VIFM must allow the State Coroner and/or the Chief Commissioner 21 days to advise VIFM if they reasonably consider that the proposed use or disclosure is likely to prejudice a coronial investigation, criminal investigation or criminal proceeding. When determining whether the use or disclosure is likely to prejudice an investigation or proceeding, VIFM must have regard to any such advice.

In addition, if VIFM is seeking to disclose information to another entity, the Bill requires VIFM to enter into an agreement with the other entity, which limits the entity’s use of the information to the purposes specified in the agreement, and requires that these purposes be consistent with VIFM’s objects as established by the Bill. The agreement must also provide that the entity’s use of the information must not likely prejudice any coronial or criminal investigation or any criminal proceeding that has been or may be commenced.

Rights in criminal proceedings

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proven guilty, according to law.

As outlined above, the Bill establishes stringent safeguards around VIFM’s information use and disclosure. Further, VIFM is subject to Victoria’s information privacy framework. These safeguards minimise any risk of prejudice to a criminal investigation, or a criminal proceeding that has been or may be commenced, thereby protecting rights in criminal proceedings.

The Hon Anthony Carbines MP – Minister for Police

Second reading

Anthony CARBINES (Ivanhoe – Minister for Police, Minister for Crime Prevention, Minister for Racing) (10:18): I move:

That this bill be now read a second time.

I ask that my second-reading speech be incorporated into Hansard.

Incorporated speech as follows:

The Victorian Institute of Forensic Medicine Bill 2024 (the Bill) replaces the Victorian Institute of Forensic Medicine Act 1985 (VIFM Act) as the Victorian Institute of Forensic Medicine’s (VIFM’s) enabling legislation. The Bill will support VIFM to maintain its status as a world-leading forensic medical institution.

In 2021, VIFM was provided $93.1 million to build its capability and essential service delivery, including the addition of magnetic resonance imaging (MRI) capability, lab equipment, infrastructure improvements, and new case management systems.

In 2023, the government granted VIFM $19.47 million to transition to a new clinical forensic medicine (CFM) service delivery model that meets victim-survivor needs and expectations and ensures a sustainable and efficient service. Government also conducted a review of the VIFM Act to ensure it remains well positioned to continue to provide best-practice forensic services.

The Bill implements key findings from the review and is the final plank of reform for this vital service.

VIFM was established in legislation in 1985 to provide forensic pathology and scientific services to the State Coroner and Victorian justice system. Since VIFM’s establishment, significant scientific and medical advancements have shaped and grown the services VIFM provides to the community. Today, VIFM is a world class forensic medical institute that supports coronial, criminal, and other legal processes. VIFM oversees the Donor Tissue Bank of Victoria and engages in teaching and research to improve public health and safety.

I would like to highlight some of VIFM’s significant achievements, which so often go under the radar. The diversity of these services reflects the breadth of expertise at VIFM, which we are lucky to have representing Victoria as the knowledge state.

In addition to its work for the Victorian Coroners Court and Victoria Police, VIFM is partnering with the Australian Sports Brain Bank to investigate chronic traumatic encephalopathy, or CTE, through post-mortem examination of people who have participated in sports with risks of repetitive head injury. It is also undertaking research into technology facilitated sexual assault, to help us better protect the community from this new means of offending.

Not to be limited to work of great benefit to this state, VIFM is also engaged nationally and internationally. It has recently been directly involved in capability building in death investigation and mortuary services in Bhutan, and for the International Committee of the Red Cross (ICRC) in Ukraine, Lebanon, and Armenia, and provided expert evidence for the Special Commission of Inquiry into LGBTIQ hate crimes for the New South Wales parliament. VIFM also coordinates national and international disaster victim identification forensic medical team deployments for the Federal Government.

Key features of the Bill include the introduction of principles to guide VIFM’s work, a new governance structure, clarification of VIFM’s objects and functions, and an information sharing framework.

The new legislation will commence no later than 1 July 2025, giving VIFM around 12 months after this bill’s passage to prepare for the transition to its new structure.

The Bill establishes overarching principles to guide the exercise of functions and powers

The Bill introduces principles that aim to guide VIFM in a people-centred approach to service delivery, commitment to excellence in clinical and research governance, and to improving public health while serving the justice system. Importantly, the principles require a person to have regard, as far as possible in the circumstances, to respecting the cultural beliefs of those affected by the events to which the Institute’s services relate, and recognising the diverse needs of Aboriginal communities, including the importance of self-determination and connection to culture, family, community and Country. It also requires regard to the significant nature of the events to which the Institute’s services relate and the need to be sensitive and responsive to persons affected by those events. These principles highlight that although VIFM’s work is focused on serving the justice system, it often engages with people who have experienced challenging events, and responding respectfully is a part of VIFM’s ethos.

The Bill introduces a new governance structure

The Bill establishes a new governance structure for VIFM, which is designed to meet best practice standards for public entities. Key reforms in this structure include moving to a skills-based governing board and introducing two key leadership roles: a Chief Executive Officer and a Director of Forensic Medicine. The Bill enables concurrent occupation of both the Chief Executive Officer role and Director of Forensic Medicine, to maintain flexibility for the Board in determining VIFM’s leadership. The move to a skills-based board reflects contemporary entity governance structures, but also incorporates the findings of the Commission of Inquiry into Forensic DNA Testing in Queensland that it is necessary to preserve forensic medical and scientific expertise in the leadership of forensic entities to ensure organisational decisions do not impact the integrity of forensic services.

The Bill requires the Board to establish a stakeholder advisory group to assist in its decision-making and performance of its functions. The establishment of a stakeholder advisory group reflects the transition from the current representative VIFM Council and will ensure that key stakeholders relevant to the principles, objects and functions of the Bill can advise VIFM’s Board.

The Bill clarifies VIFM’s objects, functions, and powers

The Bill streamlines VIFM’s statutory objects, functions, and powers to reflect its growth in service delivery over time. Since its establishment, VIFM has grown significantly and now provides forensic medical and scientific services on a much larger scale. VIFM also provides related training and research to its staff, universities, public agencies, including Victoria Police and the Coroners Court, and private entities. The Bill reflects VIFM’s growth by clearly describing VIFM’s objects, functions, and powers to better reflect the Institute’s responsibilities and priorities.

The Bill outlines several objects that create a framework within which VIFM will deliver its functions. The objects are drafted to allow for the evolution of VIFM’s services over time. They are intended to be flexible enough to support VIFM in expanding its scope of services, keeping pace with scientific and medical advancements while also making sure VIFM’s services align with government service priorities and expectations. The Bill does not remove any of the objects that were set out in the VIFM Act.

The Bill establishes VIFM’s functions to clarify the coverage of services provided by VIFM, ensure VIFM is in a position to support the Coroners Court, Victoria Police and other public entities through its services and clarify VIFM’s role in conducting research, teaching and training and supporting other entities in policy development and research. The functions are designed to align with VIFM’s objects and capture the full suite of services delivered by VIFM. Similar to the objects, the functions are drafted with a degree of flexibility to support VIFM’s scope of services as it evolves over time.

The Bill establishes the powers available to VIFM to perform its functions. In addition to a general power to do all things necessary or convenient in order to perform its functions under the Bill, it provides for specific powers related to particular functions.

The Bill introduces an information sharing framework

Importantly, the Bill sets out clear processes for how VIFM may use and share information. VIFM collects and creates information through its support of the coronial process as directed by the Coroners Court, police investigations as requested by Victoria Police, and through the carrying out of other functions. The new information sharing powers will allow VIFM to use or disclose information it holds about an individual for teaching, training and research, and to support other entities in developing policy and conducting research, with appropriate safeguards. By clarifying VIFM’s information sharing abilities, VIFM will be better placed to support other entities in the development of public health policy and research.

The Bill authorises VIFM to provide teaching and training for purposes consistent with its objects. The Bill provides that when performing this function, VIFM has the power to collect, use and disclose information it holds about an individual. Teaching and training is embedded in VIFM’s day-to-day work. Existing legislative frameworks, including the Health Records Act 2001 and the Privacy and Data Protection Act 2014 will apply to the use of information in the context of teaching and training to ensure privacy is adequately protected when case studies are used as part of teaching and training. Any relevant court orders, for example, from the Coroners Court, must also be complied with.

The Bill also authorises VIFM to use information for the purpose of conducting research, and to disclose information to other entities to support them in developing policy or conducting research for purposes consistent with VIFM’s objects. In recognition of the sensitive nature of the information VIFM holds, the Bill establishes clear safeguards to ensure the sharing of information is tightly controlled.

VIFM will only be authorised to use information in its research, or to disclose information to other entities, if doing so is not likely to prejudice a coronial investigation, criminal investigation, or a criminal proceeding that has been or may be commenced. VIFM will be required to notify the State Coroner and/or Chief Commissioner of Police of the proposed use or disclosure and seek advice about whether they reasonably consider that the use or disclosure of information is likely to prejudice an investigation or proceeding. VIFM will be required to have regard to any advice received. In addition to these requirements, if VIFM is seeking to disclose information to another entity, VIFM must enter into a written agreement with the entity it is sharing the information with to limit the entity’s use of the information appropriately.

The changes contained in the Bill complete a series of recent reforms to VIFM’s infrastructure and services. The Bill will place VIFM in the best possible position to maintain its status as a world class provider of forensic services, teaching, training and research.

I commend the Bill to the house.

Tim McCURDY (Ovens Valley) (10:18): I move:

That the debate be adjourned.

Motion agreed to and debate adjourned.

Ordered that debate be adjourned for two weeks. Debate adjourned until Wednesday 29 May.