Thursday, 23 June 2022

Children and Health Legislation Amendment (Statement of Recognition and Other Matters) Bill 2022

Introduction and first reading

The PRESIDENT (17:22): I have a message from the Assembly:

The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Children, Youth and Families Act 2005, the Social Services Regulation Act 2021, the Child Wellbeing and Safety Act 2005, the Commission for Children and Young People Act 2012, the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021, the Magistrates’ Court Act 1989, the Health Services Act 1988 and the Public Health and Wellbeing Act 2008, to make minor and consequential amendments to other Acts and for other purposes’.

Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:23): I move:

That the bill be now read a first time.

Motion agreed to.

Read first time.

Mr LEANE: I move, by leave:

That the second reading be taken forthwith.

Motion agreed to.

Statement of compatibility

Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:23): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:

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 Children and Health Legislation Amendment (Statement of Recognition and Other Matters) Bill 2022 (the Bill).

In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.

Overview of the Bill

The Bill amends the Children, Youth and Families Act 2005 (CYF Act), the Child Wellbeing and Safety Act 2005 (CWS Act), the Social Services Regulation Act 2021 (SSR Act), the Commission for Children and Young People Act 2012 (CCYP Act), the Health Services Act 1988 (HS Act), the Public Health and Wellbeing Act 2008 (PHW Act) and other acts to:

• Amend the provisions of the CYF Act for protecting children and providing community services for children and families to advance Aboriginal self-determination;

• Amend the HS Act and the PHW Act to recognise and advance Aboriginal self-determination in Victoria’s health and wellbeing services;

• Amend the CWS Act to expand the definition of ‘employee’ consistent with the intended scope of the Reportable Conduct Scheme, provide the Commission for Children and Young People (Commission) with an express power to commence proceedings for offences under the scheme, and powers to effectively enforce requirements relating to notifying the Commission about reportable allegations;

• Amend the SSR Act to provide for transitional provisions relating to the Suitability Panel and other consequential amendments;

• Amend the CYF Act to enable the Children’s Court to make rules that delegate certain powers of a registrar or magistrate to a judicial registrar; and

• Amend the CCYP Act 2012 to enable the Commission to advocate on behalf of children and young people who have had contact with the child protection and out of home care systems.

Human rights promoted by the Bill

The Bill promotes the following rights under the Charter:

• Right to equality (s 8(2)–(3))

• Protection of children (s 17(2))

• Cultural rights (s 19(2))

Amendments to the Children, Youth and Families Act 2005, the Health Services Act 1988 and Public Health and Wellbeing Act 2008

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 other persons of that background, to enjoy their culture, declare and practise their religion, and use their language. Section 19(2) of the Charter further provides specific protection for Aboriginal persons, providing that they must not be denied the right, with other members of their community, to enjoy their identity and culture, maintain and use their language, maintain kinship ties, and maintain their distinct spiritual, material and economic relationship with the land and waters and other resources with which they have a connection under traditional laws and customs.

Advancement of the self-determination of Aboriginal people in relation to child protection, community services and health and wellbeing services

One of the main purposes of the Bill is to advance the self-determination of Aboriginal people in relation to the protection of children, the provision of community services and in the health system. Clause 4 of the Bill inserts new a Part 1.1A in the CYF Act, in which new section 7A contains a Statement of Recognition that acknowledges that Aboriginal people are the First Nations people of Australia, and acknowledges the role played by the child protection system in the policies that led to the dispossession, colonisation and assimilation of Aboriginal people. A new section 7B expressly acknowledges the treaty process in progress in Victoria and the aspirations of Aboriginal people to achieve increased autonomy and control of decision-making in relation to the administration of services for Aboriginal children and families.

Clause 4 then inserts new Part 1.1B into the CYF Act which sets out binding principles relating to the recognition of Aboriginal children in respect of child protection. The principles aim to guide decision making in relation to Aboriginal children and to ensure that the distinct cultural rights of Aboriginal children and families are recognised, respected and supported in the context of child protection and other services.

Similarly, clause 60 of the Bill inserts new Part 1A into the HS Act, to enshrine a Statement of Recognition and Statement of Recognition principles into the Act. Clause 61 of the Bill inserts new Part 1A and a Statement of Recognition and Statement of Recognition principles into the PHW Act. Although the Statement of Recognition principles do not expressly guide or aid in the interpretation of the HS or PHW Acts, these changes also embed the recognition of the cultural rights and self-determination of Aboriginal people in relation to the health system, and to ultimately improve health and wellbeing outcomes for Aboriginal people in Victoria.

The insertion of an Aboriginal Statement of Recognition and associated recognition principles in the CYF Act, the HS Act and the PHW Act seeks to promote the protection and maintenance of cultural rights of Aboriginal people, particularly children, in respect of child protection and the provision of community services and the health system. The right to self-determination of Indigenous peoples is recognised in international law, including under article 3 of the United Nations Declaration on the Rights of Indigenous Peoples. The new provisions expressly recognise and promote the self-determination of Aboriginal people in respect of decision making in the child protection, community services and health and wellbeing contexts.

Powers of Principal Officers

Clause 6 substitutes section 18 of the CYF Act and inserts new sections 18AAA and 18AAB. New section 18 enables the Secretary to authorise a principal officer of an Aboriginal agency to perform certain functions and exercise certain powers conferred on the Secretary as a protective intervenor or in relation to the making of a protection order or other relevant order, in respect of an Aboriginal child or class of Aboriginal children, or their non-Aboriginal siblings. New section 18 aims to empower principal officers to exercise the functions and powers of the Secretary with regard to the entire course of a child protection investigation: from the investigation of the first report until the making of a protection or other order. The new provision also avoids the need for a principal officer to obtain authorisations at different stages of a case, for example at the commencement of a protective intervention investigation, and then again once a protection order is made.

Clause 6 also inserts new section 18AAB which provides that the principal officer of an Aboriginal agency must notify the Secretary if they consider an authorisation for them to exercise various powers to no longer be in the best interests of the particular child or children to whom it relates. In reaching this conclusion, the principal officer must have regard to any views expressed by the child or children and their parent if their views can be obtained. The Secretary must then revoke the authorisation under section 18 of the Act.

These changes are intended to streamline the authorisation process that empowers principal officers of Aboriginal agencies to exercise the functions and powers of the Secretary in relation to Aboriginal children and to ensure these children receive continued culturally safe services from the protective investigation stage through to the making of protection orders. The exercise of powers by principal officers of Aboriginal agencies will also only remain in place while they are in the child’s best interests, and the views of the child and their family will be centred in the decision-making processes that affect them. Accordingly, new section 18 will ensure the effective functioning of the Aboriginal Children in Aboriginal Care program and in so doing, promote the cultural rights of Aboriginal people, in particular the right to self-determination.

Amendments to the Children, Youth and Families Act 2005, Child Wellbeing and Safety Act 2005, Health Services Act 1988 and Public Health and Wellbeing Act 2008

Rights of Children

Statement of Recognition and associated principles

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of them being a child.

The amendments to the CYF Act to include a Statement of Recognition and its associated binding principles in respect of child protection and the provision of community services promote the best interests of Aboriginal children, as the Statement of Recognition expressly recognises the right to self-determination of Aboriginal children. New section 7E(2) provides that when considering the views of Aboriginal children, decision-makers must uphold their cultural rights and sustain their connections to family, community, culture and Country. This promotes the best interests of Aboriginal children by seeking to ensure they are respected and that their treatment is culturally safe and appropriate.

New functions of the Commission and enforcement of the Reportable Conduct Scheme

The changes to the CWS Act and other consequential amendments that give the Commission new functions in respect of advocacy for protected children and young people, as well as the introduction of new reportable conduct authorised officers to investigate and enforce that scheme, all seek to promote the rights of children. The amendments aim to protect vulnerable children and young people by allowing the Commission to advocate for them in certain circumstances as well as ultimately seeking to prevent child abuse and neglect through stronger enforcement of reporting requirements and the investigation and prosecution of failures in this regard.

Equality

Section 8(3) of the Charter relevantly provides that every person is entitled to equal protection of the law without discrimination and has the right to equal and effective protection against discrimination. The purpose of this component of the right to equality is to ensure that all laws and policies are applied equally, and do not have a discriminatory effect.

Statement of Recognition and associated principles

The inclusion of a Statement of Recognition and associated principles in the CYF Act, the HS Act and the PHW Act seeks to promote the right to equal protection of the law without discrimination and the right to equal and effective protection against discrimination. These aspects of the Bill aim to ensure that the specific and distinct cultural needs of Aboriginal adults and children are recognised, respected and protected, and act as a bulwark against discrimination in the context of child protection, community and health and wellbeing services.

Engagement of Rights

The following rights are engaged by the Bill:

• Right to privacy (s 13(a))

• Rights of children (s 17(2))

• Property rights (s 20)

• Right to freedom of expression (s 15)

• Right to the presumption of innocence (s 25(1))

• Right against self-incrimination (s 25(1)(k))

Amendment of the Children, Youth and Families Act 2005

Use and Disclosure of Information

The CYF Act permits the Secretary of the Department of Families, Fairness and Housing (DFFH) to authorise the principal officer of an Aboriginal agency to perform certain functions and exercise certain powers in relation to the protection of specific Aboriginal children and young people or their non-Aboriginal siblings. To enable these principal officers and their agencies to operate effectively in carrying out these authorised functions, clause 8 of the Bill inserts new section 19E into the CYF Act that sets requirements for the use and disclosure of information from the Secretary to principal officers and vice versa.

Broadly, these new provisions allow for the use and disclosure of information between the Secretary and principal officers of Aboriginal agencies if the information is necessary for the performance of a function or the exercise of a power of the principal officer under authorisation from the Secretary. New section 19E(3) also allows a principal officer to disclose to any person any information obtained by them in the course of performing a function or exercising powers if they reasonably believe that the information is necessary for the performance of those functions or exercise of those powers. These provisions will allow for principal officers to have access to information recorded by child protection practitioners in DFFH regarding their work with Aboriginal children and their families.

Clause 10 then inserts new subsection 192(4) which authorises and protects the disclosure of certain information by or to a principal officer, where they are exercising the powers or carrying out the functions of the Secretary or a protective intervener (such as the Secretary or a police officer) under a relevant authorisation.

These provisions engage the right to privacy under section 13(a) of the Charter.

Privacy

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

The new provisions will allow information regarding children and their families to flow between DFFH and Aboriginal agencies under the new provisions, and possibly to other entities where it is considered necessary for the exercise of a principal officer’s powers and functions under authorisation from the Secretary. While this may interfere with the privacy rights of these children and their families, I am of the view that clauses 8 and 10 of the Bill do not limit the right to privacy, as any interference pursuant to these provisions is prescribed by legislation that is precise and accessible, and is non-arbitrary in that the provisions are reasonable and proportionate to achieving the legitimate aim of ensuring the proper functioning of the child protection system and the protection of children from abuse and neglect through the appropriate sharing of relevant information between agencies.

Authorised Officers for the Reportable Conduct Scheme—amendments to the Child Wellbeing and Safety Act 2005

In order to bolster the enforcement and compliance powers of the Commission in relation to the Reportable Conduct Scheme, clause 30 of the Bill inserts new Part 5B into the CWS Act. New section 16ZO provides for the appointment of reportable conduct authorised officers (authorised officers) by the Commission. The remaining provisions in new Part 5B relate to the powers of these authorised officers in investigating non-compliance with and potential contraventions of section 16M of the CWS Act, namely the requirement for the head of an entity to notify the Commission of a reportable allegation against an employee of the entity within the specified time frame.

New Part 5B of the CWS Act engages the right to privacy (s 13(a)), the rights of children (s 17(2)), the right to property (s 20), the right to freedom of expression (s 15), the right to the presumption of innocence (s 25(1)), and the right against self-incrimination (s 25(1)(k)). These rights are discussed below.

Privacy

As discussed above, section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought.

Powers of authorised officers

Clause 30 inserts new sections 16ZR to 16ZZH into the CWS Act, which provide for a range of powers enabling authorised officers to enter and inspect premises and seize documents and items.

New section 16ZR provides that an authorised officer may enter and inspect any premises or place if they reasonably believe it is a premises or place from, or in which, an entity: (a) operates; or (b) exercises care, supervision or authority over children; or (c) provides support for an activity referred to in paragraph (a) or (b).

Authorised officers may enter such premises:

• If the authorised officer has provided notice to the occupier of the premises and they have consented to the entry for the purposes of the authorised officer monitoring compliance by the head of an entity with section 16M(1) of the CWS Act;

• pursuant to a warrant; or

• for premises that are not residential premises, without a warrant and without consent if the authorised officer reasonably believes that the head of the entity is not complying, or has not complied with the notification requirement in section 16M(1) of the CWS Act.

New section 16ZV provides that warrants can be issued by a Magistrate where there are reasonable grounds to believe that entry to the premises or place is necessary to investigate whether the head of an entity is not complying or has not complied with section 16M(1) or that documents relevant to the possible contravention of section 16M(4) may be, or within 72 hours may be, present at the premises.

Where an authorised officer enters a place or premises, they may exercise the powers specified in new sections 16ZT (in the case of entry authorised by consent), 16ZX (in the case of entry by warrant), and 16ZZ (in the case of entry without consent or warrant). These powers vary, depending on the basis on which a person’s entry is authorised, but broadly include powers to search the premises or place, inspect or examine documents, make enquiries of persons at the premises or place, observe activities being conducted there, take photographs or make recordings or sketches, copy or take an extract from documents, use and operate materials at the premises or place, secure electronic equipment, request information from persons at the premises, take into or onto the premises or place any person, equipment or materials, and seize documents or things in certain circumstances.

Further, an authorised officer who has entered a place or premises by consent may request that persons at the premises or place provide reasonable assistance, to or comply with lawful directions of the authorised officer. Where the entry does not rely on consent, authorised officers have stronger powers, and may require a person to produce documents, disclose certain information, operate equipment, provide assistance or comply with lawful directions. Under new sections 16ZY and 16ZZB, it is an offence for a person to fail to provide assistance to an authorised officer without reasonable excuse, respectively in relation to entry to premises with a warrant, and entry to premises without consent or a warrant.

The powers enable significant interference with privacy, including information privacy and privacy of the home, as authorised officers may inspect both workplaces and, in limited circumstances, residences and accommodation. However, a number of safeguards apply to the exercise of such powers to ensure they are not exercised arbitrarily or unlawfully. In particular, authorised officers who enter a premises:

• must produce their identity card and inform the occupier of the purpose of the entry and their right to refuse to consent to entry or to the exercise of various powers, where the authorised officer is entering the premises by consent (new s 16ZS);

• must only enter a part of a premises in which there is accommodation or in which residential services are provided if the resident of that part of the premises consents, or if the resident is unable to consent, the resident’s parent or guardian has provided consent, unless they are entering the premises under a warrant (new s 16ZR(3));

• must provide notice to a resident, parent or guardian of the purpose of entry and of the rights and the powers that the authorised officers may exercise, amongst other things, before authorised officers can enter a residential part of a premises (new s 16ZR(4));

• must only exercise powers of entry during normal business hours of the premises or during the entity’s usual hours of operation (unless otherwise provided for under a warrant, or by consent) (new s 16ZR(8));

• must leave a premises or place if consent is withdrawn (unless the entry is by warrant or does not require consent) (new s 16ZR(9));

• may only exercise powers (other than under a warrant) if they reasonably believe it is necessary to do so to investigate whether a relevant entity is not complying or has not complied with section 16M(1) of the CWS Act (new ss 16ZT(3) and 16ZZ(6));

• must not secure electronic equipment for more than 24 hours (other than with consent or under a warrant, or with an extension granted by a magistrate) (new ss 16ZX and 16ZZ);

• when consent is required to exercise a power, must explain certain matters including the person’s right to refuse to consent, and seek a signed acknowledgment of consent (new ss 16ZU and 16ZZA); and

• when exercising powers of entry under a warrant, must generally announce that they are authorised by warrant, give a person at the place or premises the opportunity to allow entry, and provide a copy of the warrant to the occupier (if present) (new s 16ZW).

Further, new section 16ZZR sets out a complaints process enabling a person to complain about the exercise of a power by an authorised officer under that Division or under a warrant issued under new section 16ZV to the Commission. The Commission must investigate the complaint and provide a written report to the complainant and the authorised officer, after giving the authorised officer the opportunity to comment on the proposed report.

Accordingly, a broad range of safeguards are incorporated into the Bill to ensure the powers of authorised officers may only be exercised in a reasonable and proportionate way that protects the privacy of individuals to the greatest extent possible. The powers serve the important purpose of enabling authorised officers to effectively investigate potential non-compliance with the notification requirements for heads of entities set out in section 16M of the CWS Act. This serves the broader purpose of ensuring that heads of entities are properly reporting potential child neglect or abuse, and thus promotes the safeguarding of children and their best interests more generally. This follows the Royal Commission into Institutional Responses to Child Sexual Abuse finding that sexual abuse of children had occurred in almost every type of institution, and that institutions had largely failed to report and respond to allegations of abuse over many years and decades.

The powers are appropriately tailored to reflect the source of the authority to enter premises and exercise associated powers, with the most significant powers requiring the issue of a warrant by a magistrate. Unless a person consents to entry of a residential premises or accommodation, or unless a warrant is issued, authorised officers are restricted to entry of commercial or public premises and places, at which there is generally a lesser expectation of privacy. Further, where a person considers that powers have been exercised inappropriately, the legislation sets out a complaints process.

Accordingly, I consider that, to the extent that the authorised officer powers authorise interference with privacy rights, that interference will be lawful and non-arbitrary. To the extent that it is relevant, I also consider that any limit on the right to privacy would be reasonable and justified in accordance with section 7(2) of the Charter.

Notices to produce

Clause 30 also inserts a new section 16ZZI into the CWS Act providing that the Commission may issue a ‘notice to produce’ if it reasonably believes that the head of an entity is not complying with section 16M(1) of the CWS Act, requiring production of a specified document or information by the head of the entity or any other person, within not less than 14 days.

Under new section 16ZZL of the CWS Act, inserted by clause 30, the Commission may apply to the Magistrates Court for a declaration that a person has failed to comply with a notice to produce, and an order requiring the person to pay a civil penalty. The Magistrates Court must be satisfied that the person has failed to comply with the notice to produce and that the failure was unreasonable.

The above provisions authorise an interference with privacy, as notices may be issued in relation to the documents or information of any person, which may involve personal information relevant to the compliance of the head of an entity with its notification requirements under section 16M(1).

In my view, any such interferences will not be arbitrary or unlawful. The power serves the important purpose of promoting compliance with the notification requirements for reportable allegations, which aims to reduce the risk of child abuse occurring, and enabling an effective response when it does occur. It is being provided for in the context of the Royal Commission’s findings of widespread failure to report such conduct. It allows the Commission to better regulate the reportable conduct scheme in a more responsive manner. This is particularly important given the broad scope and diversity of organisations required to comply with the scheme.

Importantly, clause 30 of the Bill inserts new section 16ZZP into the CWS Act, and this allows a person to seek an internal review by the Commission of a decision to give a notice to produce. This internal review mechanism is a key safeguard in ensuring that any interference with privacy in the issuance by the Commission of a notice to produce is reasonable and proportionate.

In relation to non-compliance, the Bill provides for the Commission to apply to the Magistrates Court for a declaration that the person failed to comply with a notice to produce in new section 16ZZL. The Court must be satisfied that the person failed to comply and that the non-compliance was unreasonable. Further, in determining the amount of a civil penalty, the Court must consider the impact of the civil penalty on the person and whether the non-compliance with the notice to produce was wilful or serious. This ensures that civil penalties imposed for failure to produce are not unduly harsh and adequately take into account the individual circumstances of the person on which they are imposed.

In addition, the Commission, remains subject to a range of confidentiality and information sharing restrictions in the CWS Act, the CCYP Act and the Privacy and Data Protection Act 2014 in relation to how private information is collected, handled and disclosed. These requirements impose additional safeguards to ensure that personal information collected through the notice to produce is dealt with appropriately.

I therefore consider that the notice to produce provisions are compatible with the right to privacy. However, insofar as privacy rights may be limited, I am of the view that any such limit is reasonable and proportionate in accordance with section 7(2) of the Charter.

Rights of children

As discussed above, section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in their best interests and is needed by them by reason of being a child. This right recognises the special vulnerability of children, and requires states to adopt social, cultural and economic measures to protect children to foster their development and education. The scope of the right is informed by the United Nations Convention on the Rights of the Child, which requires that in all actions concerning children, the best interests of the child shall be the primary consideration.

Overall, clause 30 of the Bill and new Part 5B of the CWS Act promotes this right by improving the enforcement of and compliance with the notification requirements of the reportable conduct scheme, in order to reduce the risk that children will be subject to neglect or abuse. However, certain provisions may limit the individual rights of particular children, as discussed below.

Disclosure of information

It is possible that the new provisions requiring persons to provide documents or information to authorised officers (under one of the provisions discussed above) may identify a child and disclose sensitive information about them. However, in my view, because the amendments are for the purpose of protecting children from abuse, they are likely to be in every child’s best interest overall. In addition, safeguards are contained in the CWS Act and the CCYP Act to limit the disclosure and use of protected and sensitive information.

Accordingly, I consider that the provisions requiring the production of documents or information to authorised officers are compatible with the right of the child to such protection as is in their best interests under section 17(2) of the Charter.

Power to interview children

Pursuant to new section 16ZZD, an authorised officer is empowered to interview a child who is present on the premises when exercising powers of entry under the Bill. Before interviewing a child, the authorised officer must consider, and take all reasonable steps to mitigate, any negative effect that the interview may have on the child. The authorised officer must also consider whether the child’s primary family carer should be present during the interview. However, in some circumstances, the exercise of this power may not be in the best interests of a particular child, and so may limit the rights of the child under section 17(2) of the Charter.

However, to the extent that the right may be limited by new section 16ZZD, I consider any such limit to be reasonable and proportionate for the important purpose of ensuring section 16M of the CWS Act is complied with and that reportable conduct relating to child abuse and neglect is properly notified to the Commission. While such an interview may have a negative effect on the child, the overall intention of the scheme (including the power to interview children) is to protect children from harm associated with non-compliance with section 16M. Further, the power is appropriately tailored to limit any negative effects on children, having regard to the requirements that the authorised officer consider steps to mitigate the negative effect of the interview on the child. I note that while a primary carer is not always required to be present for an interview, this is consistent with child empowerment principles, which may be undermined if there is a general requirement for a parent or independent person to be present regardless of the child’s circumstances, ability, and support needs.

As information about the experience of children in relation to an entity will sometimes be essential to identifying whether the entity has complied with its statutory requirements, I consider that there is no less restrictive means reasonably available to achieve the purpose of effective regulation and enforcement in respect of the reportable conduct scheme. I therefore consider that the limit on rights is reasonable and justified in accordance with s 7(2) of the Charter.

Property rights

Section 20 of the Charter provides that a person must not be deprived of their property other than in accordance with law. This right is not limited where there is a law that authorises a deprivation of property, and that law is adequately accessible, clear and certain, and sufficiently precise to enable a person to regulate their conduct.

As set out above, the Bill enables authorised officers to seize documents and things in certain circumstances. Under the new CWS Act provisions, items may only be seized with a warrant or with consent. Where an item is seized, new section 16ZZF provides a process by which the owner must be given a receipt for the seized items that identifies the documents seized, sets out the name of the authorised officer, and the method for contacting them as well as the reason for the seizure.

This new provision requires that the items must be returned to their owners once they are no longer required or not later than three months after seizure, or once consent to seizure is withdrawn by the owner. An authorised officer must not hold seized items for longer than three months unless they obtain an order from a magistrate extending the period during which the item may be held (for a total extension period of no more than 12 months), or if the owner provides consent, or if the proceedings or investigation for which the item was seized remains ongoing but not resolved. The magistrate can only grant such an extension if satisfied that the extension is necessary for the purposes of an investigation into a relevant entity’s compliance with section 16M of the CWS Act. Under new section 16ZZG, seized items may only be destroyed where an authorised officer is not able to return them to the owner after taking reasonable steps to do so, with the permission of a magistrate who must consider the destruction appropriate.

These powers engage the right not to be unlawfully deprived of property under s 20 of the Charter. However, as any deprivation of property associated with these provisions will be governed by a clear and accessible process set out under the legislation, any interference with property rights will be lawful, and the right will therefore not be limited. To the extent that it is relevant, I also consider that any limit on the right would be reasonable and justifiable in accordance with s 7(2) of the Charter.

Freedom of expression

Section 15 of the Charter provides that every person has the right to hold an opinion without interference and has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds. Section 15 also provides that lawful restrictions may be reasonably necessary to respect personal rights and reputations, or for the protection of national security, public order, public health or public morality.

This right may be engaged by the new section 16ZZH which stipulates that it is an offence to obstruct or impersonate an authorised officer. These provisions may engage the right to freedom of expression by limiting the kind of information that a person may impart by preventing that person from misleadingly presenting themselves as an authorised officer. However, to the extent that the right is engaged, any limitation imposed would fall within the internal limitations to the right in section 15(3), as reasonably necessary to respect the rights and reputation of other persons, or for the protection of public order. The restriction on impersonating an authorised officer enables protection of the right to privacy (by preventing people from purporting to exercise the powers of authorised officers where they are not authorised officers) and of the rights of the child (by promoting the effective monitoring and enforcement of section 16M of the CWS Act). They also protect public order by promoting the effective operation of the reportable conduct scheme. Accordingly, I consider these provisions to be compatible with the right to freedom of expression under section 15 of the Charter.

Presumption of innocence

Section 25(1) of the Charter provides that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. The right is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding, so that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence.

‘Reasonable excuse’ defence

Offence provisions for failure to provide assistance to an authorised officer

The right to the presumption of innocence is engaged by various new sections 16ZY,16ZZB of the CWS Act, inserted by clause 30 of the Bill, which provide that it is an offence to fail to provide assistance to an authorised officer ‘without reasonable excuse’. As these offences are summary offences, section 72 of the Criminal Procedure Act 2009 will apply to require an accused who wishes to rely on the ‘reasonable excuse’ exception to present or point to evidence that suggests a reasonable possibility of the existence of facts that, if they existed, would establish the excuse.

By creating ‘reasonable excuse’ exceptions, the offences in the Bill may be viewed as placing an evidential burden on the accused, in that it requires the accused to raise evidence as to a reasonable excuse. However, in doing so, this offence does not transfer the legal burden of proof. Once the accused has pointed to evidence of a reasonable excuse, which will ordinarily be peculiarly within their knowledge (for example, why the accused failed or refused to assist an authorised officer), the burden shifts back to the prosecution who must prove the absence of a reasonable excuse beyond reasonable doubt. I note that case law has held that an evidential onus imposed on establishing an excuse or exception does not limit the Charter’s right to a presumption of innocence, as such an evidentiary onus falls short of imposing any burden of persuasion on an accused.

Accordingly, I am of the view that the right to be presumed innocent under section 25(1) of the Charter is not limited by these provisions.

Compliance notices

New sections 16ZZJ and 16ZZK may engage the right to presumption of innocence as the provisions provide for the Commission to give the head of an entity a notice to comply if the Commission suspects that that head is not complying with section 16M(1)(a) or (b) of the CWS Act, that is the notification requirements of the reportable conduct scheme. The notice must state the action that the person must take to address any issues identified in the notice and the date by which such action is required to be taken. It is an offence to fail to comply with a compliance notice, by failing to take the action specified in the notice by the specified date, without reasonable excuse.

As the prosecution of a failure to comply with a compliance notice does not require proof of the commission of the underlying contravention to which the notice was issued, this may engage the right to the presumption of innocence in the Charter (s 25(1)). Additionally, a proceeding for a non-compliance offence may also require a person to respond to matters relevant to the alleged contravention, engaging s 25(2)(k) of the Charter which provides that a person cannot be compelled to testify against themselves or confess guilt. The scope of both these rights have been interpreted as extending to protect a person to circumstances prior to the issuing of a criminal charge.

However, in my view, the provision attracts adequate safeguards so as to not constitute a limit on these rights. As a preliminary point, the compliance notice scheme serves an important objective of providing the Commission with a timely and targeted mechanism for compelling a head of an entity to take necessary remedial action in response to suspected contravention of the reportable conduct notification requirement. It facilitates the immediate and direct prevention or remediation of conduct which may be putting a child at risk and may be continuing, in a way that proceeding with a prosecution for an alleged contravention is not able to do.

The Bill provides for rights to seek internal review and review by VCAT in relation for review of a decision by the Commission to give the head of an entity a reportable conduct notice to comply, which provides a person with an avenue to contest the notice where it is disputed that any alleged contravention has been committed.

Accordingly, I am satisfied the compliance notice scheme provided for in the Bill is compatible with the Charter.

Amendment of the Commission for Children and Young People Act 2012

Clause 39 of the Bill inserts new Part 4A into the CCYP Act. New section 30B sets out the new functions of the Commission to advocate for the human rights of protected children, new section 30C allows the Commission to request information, documents or records from the Department of Families, Fairness and Housing or an alternative care service, and new section 30D provides for the Commission to liaise with other entities from whom the child or young person has sought assistance to avoid unnecessary duplication. These new provisions engage the right to privacy under section 13(a) of the Charter.

Privacy

As outlined above, section 13(a) of the Charter protects the right not to have a person’s right to privacy unlawfully or arbitrarily interfered with.

New functions of the Commission

New section 30B sets out the new functions of the Commission which include seeking assistance from a government department or other organisation or making representations on behalf of the protected child or young person. This might engage the right to privacy through the disclosure of information about the child.

However, I am of the view that the new functions of the Commission would not limit the right to privacy, as any interference is prescribed by clear, precise legislation that is non-arbitrary in that it is a reasonable and proportionate measure to improve the advocacy for, and protection of, vulnerable children. Indeed, the new section 30B promotes the rights of children. Accordingly, I consider that new section 30B is compatible with the Charter.

Request for information by the Commission

The Commission may request the Secretary of the Department of Families, Fairness and Housing or an out of home care service to provide information, documents or records to it under new section 30C, if the same is reasonably required for the Commission’s advocacy functions under new section 30B. The Secretary or out of home care service may then disclose the relevant material if it is reasonably necessary for the performance of the Commission’s advocacy functions. The disclosure of information relating to a child engages the right to privacy.

Given the information sharing under section 30C is pursuant to properly prescribed and clear legislation that is non-arbitrary in that it is a reasonable and proportionate measure to ensure that the Commission can properly carry out its advocacy functions in respect of protected children and young people, and in so doing promote their rights, I am of the view that the right to privacy is not limited by new section 30C.

Avoiding unnecessary duplication

New section 30D provides that if the Commission becomes aware that a protected child or young person has sought assistance from another entity, the Commission must liaise with that other entity to avoid the unnecessary duplication of assistance to the protected child or young person and to facilitate coordination and expedition of that assistance. Given this would necessarily require the sharing of information relating to children by these entities, new section 30D engages the right to privacy.

However, I consider that any interference with privacy does not limit the right under the Charter, as the same would occur pursuant to precise and accessible legislation that is reasonable and proportionate to achieve the aim of avoiding duplication and wastage of public resources in respect of child protection, and ultimately the promotion of the rights of vulnerable children more broadly.

Children, Youth and Families Act 2005—amendments relating to judicial registrars

The Bill will:

• enable the Children’s Court to make rules authorising judicial registrars to exercise certain magistrates’ powers, namely the in personam powers of a magistrate to issue warrants related to the care and protection of a child, and

• clarify that judicial registrars can exercise any power of a registrar.

The amendments will allow the Court to delegate power to issue certain warrants to judicial registrars but will not change the substantive nature of the power. The warrants may engage the right to freedom of movement (section 12), the right to privacy and reputation (section 13), and Aboriginal cultural rights (section 19(2)(a)). However, allowing judicial registrars to issue the warrants will not affect the extent to which those rights are engaged, as the existing framework of safeguards will apply. These amendments promote the right to a fair hearing (section 24), and protection of families and children (section 17).

Right to a fair hearing

Section 24(1) of the Charter provides that criminal and civil proceedings be heard by a competent, independent and impartial court or tribunal after a fair and public hearing. The right generally encompasses the established common law right of each individual to unimpeded access to courts and an implied right to a reasonably expeditious hearing.

Allowing the Court to extend certain powers of magistrates and registrars—such as the power to issue warrants—to judicial registrars will promote the right to a fair hearing by allowing the Court to operate more independently, flexibly and efficiently.

These amendments promote the Court’s independence by giving the Court greater control over its internal procedures, including how matters are allocated. Allowing the Court to delegate warrant powers will support the timely resolution of warrant applications and ensure magistrates have capacity to hear more complex matters. This will better equip the Court to manage demand, including the sustained increase in warrant applications, by allocating its resources appropriately. Efficiencies created by the amendments will help the Court to ease COVID-19 related backlogs, which will improve access to the Court.

Judicial registrars possess the requisite competence, independence and impartiality to exercise the powers that may be delegated. Judicial registrars must demonstrate a level of experience and comply with ethical obligations set out in Part 7.6A of the Act. In addition, existing safeguards in the Act relating to judicial registrars will continue to apply—for example, a judicial registrar must refer a proceeding that they consider inappropriate for their determination to a magistrate (section 542J). The Act also sets out review and appeal processes for decisions of a judicial registrar (section 542K). For these reasons, the right to a fair hearing will not be limited by the amendments.

Protection of families and children

Section 17(2) of the Charter provides that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Allowing the Court to delegate powers to issue warrants to judicial registrars will promote children’s rights to protection by ensuring vulnerable children are protected as soon as possible. As outlined with respect to the right to a fair hearing, the amendments will provide the Court with more flexibility in allocating matters, which will help to ease magistrates’ workloads. This will contribute to the protection of families and children by ensuring magistrates have capacity to hear more complex matters relating to child protection in a timely manner.

Ingrid Stitt MP

Minister for Workplace Safety

Minister for Early Childhood

Second reading

Mr LEANE (Eastern Metropolitan—Minister for Local Government, Minister for Suburban Development, Minister for Veterans) (17:24): I move:

That the second-reading speech be incorporated into Hansard.

Motion agreed to.

Mr LEANE: I move:

That the bill be now read a second time.

Incorporated speech as follows:

The Bill amends six different legislative systems to make progress on embedding the Government’s commitment to Aboriginal self-determination in Victoria’s laws and make technical amendments to other key regulatory schemes.

In 2018, Wungurilwil Gapgapduir: Aboriginal Children and Families Agreement established a landmark partnership between the Aboriginal community, Government and the child and family services sector to commit to better outcomes for Aboriginal children and young people. This is the foundation of Victoria’s plan to meet the National Agreement on Closing the Gap target to reduce the rate of over‐representation of Aboriginal children in care by 45 per cent by 2031. At the heart of Wungurilwil Gapgapduir is a commitment to the reduction of the over‐representation of Aboriginal children in child protection and alternative care. We are going to achieve that by enabling the advancement of Aboriginal models of care and transferring decision making for Aboriginal children to Aboriginal Community Controlled Organisations. This Bill is an important part of achieving that vision.

This Bill also supports the Victorian Aboriginal Affairs Framework, through the Government working in partnership with Aboriginal people to meet the goal that Aboriginal children are raised by Aboriginal families. In particular, the Bill advances the objectives of:

• Eliminating the over‐representation of Aboriginal children and young people in care,

• Increasing Aboriginal care, guardianship and management of Aboriginal children and young people in care, and

• Increasing family reunification for Aboriginal children and young people in care.

In the health sector, the Bill progresses a major priority of the Aboriginal Health and Wellbeing Partnership Forum by enshrining commitments to Aboriginal self-determination in our health legislation. This also progresses the Government’s commitment to Aboriginal self-determination as set out in the Victorian Government Self-Determination Reform Framework.

Through the Bill, this Parliament will specifically acknowledge Victoria’s Treaty process and our shared aspiration to achieve increased autonomy and Aboriginal decision-making. This includes greater control of planning, funding and administration of services, including through self-determined Aboriginal representative bodies established through Treaty. Through this, the Government will make clear our commitment to Treaty and the reform work currently underway.

To achieve these goals, the Bill focuses on the following key objectives:

i. Embedding the Victorian Government’s commitment to Aboriginal self‐determination in the legislative framework for children and families services, and providing critical enablers to support Aboriginal‐led models of care,

ii. Advancing Aboriginal self-determination to improve health outcomes and the delivery of health services, recognising the key role of the Aboriginal health sector in the delivery of Aboriginal health services, and supporting healing, acknowledging trauma and providing a foundation for future reform,

iii. Amending the Reportable Conduct Scheme to address critical regulatory gaps impacting on the effectiveness of the scheme,

iv. Providing necessary transitional provisions to support the new Social Services Regulator and the Worker and Carer Exclusion Scheme,

v. Ensuring the Commission for Children and Young People can advocate for children and young people and support them in understanding and exercising their right to raise issues of concern, and

vi. Enabling the Children’s Court of Victoria to make rules that delegate certain powers of a registrar or magistrate to a Judicial Registrar.

As well as advancing these objectives, the Bill makes technical and clarifying amendments to make sure our laws operate as effectively as possible.

I will deal with each policy within the Bill in turn.

Introducing an Aboriginal Statement of Recognition and accompanying principles

The evidence is clear that the single biggest factor in improving health and social outcomes is self-determination. The Bill provides significant reform to achieve self-determination and self-management for Aboriginal people and to strengthen provisions that uphold the importance of culture for the safety of Aboriginal children. We recognise that Aboriginal people are best placed to lead and inform responses for Aboriginal children and families and that Aboriginal people have the strengths and the right to lead change for their children. Where this is unable to do be done, it is our intent to guide decision makers to use an Aboriginal lens when making their decisions.

The Statement of Recognition and accompanying principles in the Children, Youth and Families Act 2005 are a critical commitment to enacting self-determination for Aboriginal communities. Many are currently experiencing an increase in the over-representation of their children coming into contact with the child protection system and entering into care.

We know, through the impact of colonisation and its disconnect from Aboriginal culture, that Aboriginal people are 22 times more likely than non-Aboriginal people to be in out of home care. By guiding non-Aboriginal decision-makers through the Statement of Recognition principles, the Bill aims to retain Aboriginal children with their culture and community and break the intergenerational trauma contributed to by past policies.

The journey to develop this work by acknowledging the past wrongs, was co-designed with the Aboriginal children and families sector. The intent of the Statement is lead from the front by acknowledging the injustice of the past so we can collectively walk and work together towards a brighter future for Aboriginal people, for their children and for all of Victoria.

These principles are a critical step to building a system that is culturally responsive; trauma-informed, and therefore enables Aboriginal self-determination. The rebalancing of power will lead to a decrease in the over-representation of Aboriginal children in the child protection and care system.

Critically the principles enact policy into practice and guide decision making by supporting all decision-makers to approach their decisions through an Aboriginal lens. This aims to protect and connect Aboriginal children to culture, family and Country. We should all agree this is a shared vision.

Enabling the effective functioning of Aboriginal Children in Aboriginal Care

We know that when Aboriginal people make decisions for their own people, they do better in life. For this reason, the Bill provides critical enabling functions that support the expansion of the nation-leading Aboriginal Children in Aboriginal Care program.

Through the Aboriginal Children in Aboriginal Care program, Aboriginal agencies are making decisions and providing culturally grounded support for Aboriginal families. This program is self-determination in action and is delivering better outcomes for those families.

The Bill broadens the authorisations for Aboriginal agencies under the Aboriginal Children in Aboriginal Care program, allowing agencies to be authorised for any specified child protection functions following receipt and classification of a report. This will allow Aboriginal agencies to undertake investigations of allegations of child abuse and neglect about Aboriginal children and young people, engaging those families and connecting them to the supports they need to address protective concerns. By providing an Aboriginal response to child protection reports delivered by Aboriginal agencies, there is potential to reduce the need for further child protection intervention and reduce the number of Aboriginal children entering care.

The Bill expands information sharing provisions for Aboriginal Children in Aboriginal Care, allowing the Secretary to disclose, and provide access to all child protection records and those currently held in the child protection Client Relationship Information System to Aboriginal agencies authorised under section 18 of the Act. This is consistent with child protection practice and addresses the risk of the emergence of a two‐tiered child protection system should child protection practitioners employed by the department have greater access to information that may be relevant to a child’s safety and wellbeing than an authorised agency. The key issue is that if someone is making decisions about the safety and wellbeing of a child or young person, regardless of whether they are a public servant or an employee of an Aboriginal agency, they need access to all information recorded that is relevant to that child. This Bill provides that access.

Introducing a Statement of Recognition and non-binding principles for the health sector

The Bill amends the Health Services Act 1988 and Public Health and Wellbeing Act 2008 to include a Statement of Recognition and accompanying principles.

The Statement of Recognition acknowledges past wrongs and mistreatment within the health system, the strength of Aboriginal people, culture, kinship and communities in the face of historic and ongoing injustices and the essential role of Aboriginal Community Controlled Health Organisations in meeting the health, wellbeing and care needs of Aboriginal people in Victoria.

The accompanying principles reinforce the Victorian Government’s commitment to Aboriginal self-determination in health and acknowledge the importance of culturally safe and appropriately resourced services to meet the health and wellbeing needs of Aboriginal people in Victoria.

Both the Statement of Recognition and principles have been developed in close partnership with the Aboriginal Health and Wellbeing Partnership Forum. The amendments ensure that, for the first time, the Health Services Act and Public Health and Wellbeing Act acknowledge the importance of Aboriginal self-determination in improving the health and wellbeing of Aboriginal Victorians. We will also seek alignment between the Statement of Recognition and Principles and the upcoming Mental Health and Wellbeing Bill.

These amendments closely align with the priorities of the Aboriginal Health and Wellbeing Partnership Forum and the guiding principles of both the Victorian Government Self-Determination Reform Framework and Closing the Gap Agreement.

Together, the Statement of Recognition and principles represent an important step in reforming the health system to strengthen Aboriginal self-determination and lay the foundation for future reforms which continue to embed Aboriginal self-determination across health and wellbeing services in Victoria.

Updating the Reportable Conduct Scheme

Victoria’s Reportable Conduct Scheme was introduced in response to recommendations of the 2013 ‘Betrayal of Trust’ report from the Parliamentary Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations.

The Scheme protects children from abuse and misconduct in entities that exercise care, supervision and authority over children. The Commission for Children and Young People (Commission) has oversight of the Scheme, which commenced in phases from 1 July 2017.

The intent of the Scheme is to require entities to respond to certain serious—reportable—allegations against its employees, including volunteers and contractors. The Act includes a wide definition of employee to capture a person regardless of their employment status.

To ensure the Commission can fulfill its critical oversight role, the Act requires that the Commission is notified of every allegation of reportable conduct. Failing to notify the Commission is an offence.

This Bill introduces amendments to enable the Scheme to operate as intended and ensure the original policy intent is reflected.

The Bill proposes amendments to the definition of ‘employee’ for the purpose of the Scheme, to clarify that the Scheme also applies to labour hire arrangements, secondments and independent contractors.

This will mean that, for example, relief teachers, nurses and youth justice workers in custodial settings, that are contracted through labour hire or similar arrangements will be covered by the Scheme. It recognises that the risks to children are the same for non-labour hire staff, who are already captured by the Scheme.

The Bill includes an amendment to clarify that the Commission and Victoria Police can commence proceedings under the Act. It also includes amendments to enable the Commission to monitor and enforce compliance with the requirement for entities to notify the Commission about reportable allegations, including:

• Extending the timeframe to three years for commencing proceedings in relation to non-compliance with the requirement to notify the Commission about a reportable allegation, and

• Providing the Commission with a suite of contemporary powers to enable the Commission to monitor and enforce compliance with the requirement to notify the Commission about a reportable allegation.

The powers are modelled on similar provisions in the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021 for regulators to monitor and enforce compliance with the Child Safe Standards.

The amendments in the Bill will ensure that reportable conduct can be responded to regardless of a person’s employment status, and that possible non-compliance with the requirement to notify the Commission about a reportable allegation can be appropriately investigated and enforced. The amendments will help to protect children from the risk of abuse and mistreatment, making organisations safer for children.

Amendments to the Social Services Regulation Act

The Social Services Regulation Act establishes a new Worker and Carer Exclusion Scheme to ensure that individuals who pose a serious risk of harm to children and young people are excluded from the social services sector. The scheme replaces and strengthens existing arrangements regulating workers and carers in out-of-home care, currently administered by the Suitability Panel.

The amendments in the Bill enable the Suitability Panel to continue to deal with transitional matters. That is, to make determinations about matters that are before it prior to the new scheme commencing, once the new scheme takes effect.

Advocacy function for the Commission for Children and Young People

Victorian children and young people in care do not currently have access to an independent, child and young person-friendly body that can act on their behalf, is responsive to their concerns, respectful, culturally inclusive, and trauma-informed.

The amendments in this Bill will empower the Commission for Children and Young People to advocate for children and young people in the child protection and out-of-home care systems, or who were in those systems in the previous six months, to have their issues raised and resolved either directly with government agencies and non-government service providers or referred to a relevant complaints body where necessary. The amendments are intended to support another person, such as a parent, guardian or peer, to seek assistance and advocacy from the Commission on behalf of those children and young people unable to raise their issues themselves.

The Bill includes amendments to ensure adequate information sharing between the Commission for Children and Young People and government agencies and non-government service providers to allow the Commission to obtain information it needs for its advocacy function from the department and alternative care providers.

The proposed function will also enable the Commission for Children and Young People to advocate on behalf of young care leavers aged up to 21 years who are accessing services through the Home Stretch and Better Futures programs. This is consistent with the Government’s commitment to these landmark programs and implementing policy, legislative and systems enablers that enable all young people transitioning from care to thrive as they grow older.

Enabling the Children’s Court Rules to delegate warrant powers to a Judicial Registrar

Judicial registrars play a crucial role in the smooth and efficient running of the courts, helping the judiciary to manage their workload and performing key administrative and judicial tasks. In 2021, the Victorian Government’s Justice Recovery Plan established four new judicial registrar positions in the Children’s Court, to help the Court respond to the effects of the COVID-19 pandemic.

The amendments in this Bill will support those earlier reforms by:

i. allowing the Children’s Court to authorise judicial registrars to exercise the in personam powers of magistrates under the Children, Youth and Families Act to issue search and protect orders or warrants, and

ii. clarify that a judicial registrar can exercise any powers of a registrar under the Children Youth and Families Act, or any other Act or the rules of court.

These reforms will help the Children’s Court to manage applications for search warrants to locate children and place them in emergency care. The reforms will also provide greater flexibility for courts to manage administrative tasks, which will particularly assist in regional areas where administrative flexibility is required.

In summary, the Bill makes significant progress on embedding Aboriginal self-determination in the laws of our State. It also makes a number of changes to increase the effectiveness of Victoria’s legislative system.

Most importantly, this Bill represents a very tangible step towards empowering and supporting Victoria’s Aboriginal community to improve outcomes for children and families and improve the health of the community.

I commend the Bill to the house.

Mr ONDARCHIE (Northern Metropolitan) (17:24): I move, on behalf of my colleague Dr Bach:

That debate on this matter be adjourned for one week.

Motion agreed to and debate adjourned for one week.