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COMMISSION FOR CHILDREN AND YOUNG PEOPLE BILL 2012
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13 November 2012
Statement of Compatibility
WOOLDRIDGE
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COMMISSION FOR CHILDREN AND YOUNG PEOPLE BILL 2012
Statement of compatibility
Ms WOOLDRIDGE (Minister for Community Services) tabled following statement in
accordance with Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and
Responsibilities Act 2006 (charter act), I make this statement of
compatibility with respect to the Commission for Children and Young People
Bill 2012.
In my opinion, the Commission for Children and Young People Bill 2012, as
introduced to the Legislative Assembly, is compatible with the human rights
protected by the charter act.
I base my opinion on the reasons outlined in this statement.
Overview of bill
The purpose of the bill is to establish the Commission for Children and Young
People as well as to repeal and re-enact with amendments certain provisions of
the Child Wellbeing and Safety Act 2005. The commission will be constituted by
a principal commissioner who will be appointed by the Governor in Council.
The main objective of the commission is to promote continuous improvement and
innovation in policies and practices relating to the safety and wellbeing of
vulnerable children and young people and child and young persons generally.
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The functions of the commission include to:
provide advice to ministers, government departments, health and human
services;
promote the interests of vulnerable children and young people in the
Victorian community;
conduct inquiries into deaths of child protection clients, provision of
child protection services and certain other services to vulnerable children
and young people; and
functions in relation to the Working with Children Act 2005.
Human rights issues
The human rights protected by the charter act that are engaged by the bill
are:
privacy and reputation;
protection of families and children;
humane treatment when deprived of liberty;
children in the criminal process; and
right to privilege against self-incrimination.
Section 13 -- Privacy and reputation
Section 13 of the charter act provides that individuals have a right not to
have their privacy unlawfully or arbitrarily interfered with, and not to have
their reputation unlawfully attacked.
Clauses 27, 30 and 42 of the bill engage the right to privacy by enabling the
commission and an authorised person to require some government departments and
service providers to provide relevant information and records.
Any interference with privacy occasioned by these provisions will not be
unlawful or arbitrary. The powers are clearly set out in the bill, are
necessary as part of the commission's monitoring role and are limited to this
purpose.
There are other provisions in the bill that also engage the right to privacy.
Clauses 46 and 47 require the commission to give a report of an inquiry to
some ministers and the Secretary to the Department of Human Services. Clause
53 permits the commission to disclose information to certain authorities
including the Ombudsman and a coroner. Part 6 of the bill also contains
provisions that permit disclosure of confidential information acquired by the
commission in certain circumstances. Clause 61 sets out the requirements when
the commission must notify the Independent Broad-based Anti-corruption
Commission of a matter of which the commission becomes aware in the
performance of functions or exercise of powers under the bill or any other act
that appears to involve corrupt conduct.
Nevertheless, the bill contains safeguards aimed at preventing these
information-sharing provisions from being used in a way that could interfere
with privacy in an unlawful or arbitrary way.
These include a confidentiality provision in clause 55 that prohibits a
relevant person from disclosing confidential information except to the extent
necessary to perform functions or exercise powers under the act or that the
person is expressly authorised, permitted or required to give under the act.
Clauses 50 and 52 of the bill both engage the right to privacy and the right
of individuals not to have their reputation unlawfully attacked. Clause 50
enables the commission to give a report to Parliament and clause 52 allows the
commission to publish a copy of such report on the internet. It is possible
for a report to Parliament to identify an individual whose reputation may
suffer as a result. However, any interference with the right to privacy and
reputation will not be unlawful or arbitrary. There are restrictions on
identifying individuals and the commission is required under clause 48 to give
a person an opportunity to comment on material that is adverse to the person
before the report is provided to the secretary, minister or Parliament.
It is also relevant to note that the commission is bound to act independently
and impartially and to adhere to the main objective of the legislation, which
is to promote continuous improvement and innovation in policies and practices
relating to the safety and wellbeing of vulnerable children and young people.
Any limitation of the reputational right not to have oneself unlawfully
attacked by publication of adverse material in a report is therefore
justifiable when all relevant factors, including the public-interest purpose
of publishing a report, are taken into account.
Section 17 -- Protection of families and children
The right of every child, without discrimination, to such protection as is in
their best interests and may be required by them because they are a child is
engaged by this bill.
This right is promoted by the bill, as the establishment of the commission
will increase the accountability of the child protection system and other
child services. A key object is to promote a culture of reflection and
continuous improvement of policies and practices relating to the safety and
wellbeing of vulnerable children, which will ultimately benefit children who
access those services.
Section 22 -- Humane treatment when deprived of liberty
Section 23 -- Children in the criminal process
These rights are engaged by the function of the commission in relation to
young people who are detained in youth justice facilities.
The function is to provide advice to ministers, government departments, health
services and human services about policies and practices relating to the
safety and wellbeing of vulnerable children and young people, including
detainees in youth justice facilities. The commission must perform this
function for the purpose of promoting the best interests of the child or young
person.
As this function is aimed in part at promoting the best interests of youth
detainees, the rights of those young people to humane treatment when deprived
of liberty, and to age-appropriate treatment, will be promoted by the bill.
Section 25 -- Right to privilege against self-incrimination
Section 25(2)(k) of the charter act provides that a person charged with a
criminal offence is entitled not to be compelled to testify against himself or
herself or to confess guilt. Clause 42 of the bill engages this right by
requiring persons in charge of certain services or a school to provide access
to information held by that service or school.
Nonetheless, the right under section 25(2)(k) of the charter act is not limited
as clause 45 provides that a person can be excused from providing information
that would tend to incriminate the person.
Conclusion
I consider that the bill is compatible with the charter act because the rights
which are engaged by the bill are unlikely to be limited. If any rights are
limited by the bill in individual circumstances, to the extent that those
rights are limited, those limitations will be reasonable and demonstrably
justified in a free and democratic society.
The Hon. Mary Wooldridge, MP
Minister for Community Services
Second reading
Ms WOOLDRIDGE (Minister for Community Services) -- I move:
That this bill be now read a second time.
I am delighted to stand here today and introduce this bill to the Parliament
which will provide for the establishment of a Commission for Children and Young
People, which is independent of government, for the state of Victoria.
This bill honours a significant election commitment of the Baillieu government
to strengthen the oversight and support for vulnerable children and young people
in this state.
Victoria will now provide vulnerable children with the same system of
independent checks and balances over the child protection system that all the
other Australian states and territories have had for years.
In early 2012, the government released a comprehensive reform agenda for
Victoria's system of child protection, Victoria's Vulnerable Children -- Our
Shared Responsibility.
The commitments articulated in this paper presented a range of reforms
representing broad transformational change, as well as the improvement of
existing processes and services.
Central to these reforms, and critical for sustaining oversight and attention on
all the services that support vulnerable and disadvantaged children, is the
establishment of a Commission for Children and Young People.
The commission established by this legislation will replace the existing Office
of the Child Safety Commissioner.
At present, the child safety commissioner is not independent. The current child
safety commissioner is appointed by the Premier, and with the exception of child
death inquiries which are required by legislation, conducts inquiries only at
the request of the minister, and makes reports only to the minister in relation
to these inquiries.
Under the Commission for Children and Young People, the principal commissioner
and any additional commissioners will be independently appointed for a term of
five years by the Governor in Council. The commission will also prepare an
annual report for Parliament.
The commission will retain the features of the Office of the Child Safety
Commissioner that the community values, including a strong voice for children
promoting their safety and wellbeing; monitoring out-of-home care services;
functions related to working with children and undertaking inquiries into the
deaths of children known to child protection.
The commission will also have strengthened powers and functions consistent with
commissioners and guardians in other states and territories.
The commission will be able to initiate its own inquiries.
These may be individual inquiries in relation to the safety and wellbeing of
vulnerable children, including child protection clients, youth justice clients,
those leaving state care and children, young people, or their primary carer, who
are receiving or have received services from a registered community service,
such as out-of-home care or community-based child and family services.
Alternatively, they may be systemic inquiries into the provision of services
provided, or omitted to be provided, by a health service, human service or
school where the commission identifies persistent or recurring issues regarding
current service delivery to children or their primary carers which impacts the
safety and wellbeing of children and young people.
This includes services provided by and funded by government, including community
service organisations. The commission may table systemic inquiries in
Parliament.
All inquiries will have the intention of improving the provision of services,
promoting a culture of reflection and continuous improvement and innovation
amongst service providers. Specific clinical decision making by health
professionals is not in scope as there are a wide
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range of panels and boards that already undertake this role.
Further, the child death reviews currently performed by the Office of the Child
Safety Commissioner will be retained and expanded to include the ability to
conduct inquiries where children die of abuse or neglect but were not known to
child protection. Currently these inquiries are limited as they can only be
conducted for children known to child protection at the time of, or in the 12
months preceding, their death.
The new commission will also have the capacity to have additional commissioners
if a particular focus is warranted.
The government intends the first additional commissioner to be a commissioner
for Aboriginal children and young people.
Victoria will be the first state or territory to have a commissioner dedicated
to Aboriginal children and young people, recognising their particular
vulnerabilities and significant overrepresentation in the child protection
system.
This commissioner will oversee the five-year plan for Aboriginal children in
out-of-home care and other policies and practices that affect Aboriginal
children.
In Victoria's Vulnerable Children -- Our Shared Responsibility, the government
committed to develop a whole-of-government vulnerable children and families
strategy.
This will relate to the health, safety and wellbeing of vulnerable children and
young people and the commission will report to ministers on its implementation
and effectiveness.
The Baillieu government is committed to the creation of a transparent child
protection system that is accountable and subject to appropriate review and
scrutiny.
It has taken the election of this coalition government to take action to ensure
that Victoria's child protection and related child, youth and family services
are finally subject to the same level of independent oversight as they are in
the other Australian states and territories.
Victoria has been the only jurisdiction that has had a children's commissioner
who is not regarded as independent of government.
The former Labor government was never prepared to let itself or its services be
subject to the sort of scrutiny our children deserve.
The Commission for Children and Young People will inform the development of more
effective approaches, enhance services, protect vulnerable children and improve
their life outcomes.
This is a great step forward in the protection of Victorian children, and I
commend the bill to the house.
Debate adjourned on motion of Ms GREEN (Yan Yean).
Debate adjourned until Tuesday, 27 November.