Hansard debates

Mr MERLINO (Monbulk—Minister for Education) (10:19:35): In accordance with the Charter of Human Rights and Responsibilities Act 2006, I table a statement of compatibility in relation to the Children’s Services Amendment Bill 2019. In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (Charter), I make this Statement of Compatibility with respect to the Children’s Services Amendment Bill 2019 (Bill). In my opinion, the Bill, as introduced to the Legislative Assembly, is compatible with human rights protected by the Charter. I base my opinion on the reasons outlined in this statement. Overview of the Bill The purpose of the Bill is to amend the Children’s Services Act 1996 (Act) to further provide for the regulation of children’s services, in a manner that is consistent, where appropriate, with the regulation of education and care services under the Education and Care Services National Law (Victoria) (National Law). It does so primarily by establishing a scheme that provides for the approval of persons who provide the services and the operation of the services, and providing for the monitoring and enforcement of the scheme. For the purpose of this statement, the key part of the Bill is clause 8, which substitutes the current children’s services licensing regime contained in Parts 2–5 of the Act with new Parts 2–5D. These new parts relate to provider and service approvals (Parts 2 and 3); operational requirements (Part 4); compliance with the Act by service providers (Part 5); review of decisions made by the Regulatory Authority, which is currently the Secretary to the Department of Education and Training, (Part 5A); monitoring and enforcement (Part 5B); the functions of the Regulatory Authority (Part 5C); and information, records and privacy (Part 5D). Clause 15 also inserts new sections into the newly named 'Miscellaneous’ part (Part 6) and clause 16 substitutes Parts 7 and 8 of the Act with new Part 7 in relation to transitional provisions. Human rights issues The human rights protected by the Charter that are relevant to the Bill are: • the right to protection of children: section 17(2) • the right to privacy: section 13(a) • the right to property: section 20 • the right to the presumption of innocence: section 25(1) • the right to freedom of expression: section 15(2) • the right to freedom of movement: section 12 • the right to privilege against self-incrimination: section 25(2)(k). 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. Section 17(2) recognises that children are vulnerable because of their age and entitled to special protection. The new sections of this Bill operate for the overarching purpose of the protection of children, thereby promoting the right in section 17(2) of the Charter. Clause 7 of the Bill inserts new section 8 into the Act, which provides that one of the objectives of the Act is to 'ensure the safety, health and wellbeing of children attending children’s services’. It also provides that one of the guiding principles of the Act is that the rights and bests interests of the child are paramount. New section 9 states that the Regulatory Authority must exercise its functions having regard to the objectives and guiding principles of the Act. The underlying purpose of the protection of children permeates every new section of this Bill. To the extent that certain new sections limit human rights under the Charter, as I will discuss, those limitations are reasonably necessary and justified for the purpose of protecting children. Right to privacy The right to privacy under section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence 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. A number of new sections inserted by the Bill engage the right to privacy for the purpose of ensuring the protection of children in education and care services. However, for the reasons set out below, it is my view that these interferences are neither unlawful nor arbitrary and as such do not constitute a limit on the right to privacy. Some of these new sections also engage other rights under the Charter. Where relevant, I will address those rights alongside the right to privacy. Prohibition on employment Provider and service approvals are required for a person to provide children’s services and operate a children’s service premises. The Regulatory Authority can suspend or cancel a provider or service approval for various reasons under new sections 25, 31, 70 and 76, including if the Regulatory Authority is satisfied that the approved provider is not a fit and proper person or if continued operation of the children’s service would constitute an unacceptable risk to the safety, health or wellbeing of a child. Clause 8 of the Bill inserts into the Act new section 123, which provides that the Regulatory Authority may issue a prohibition notice to a person involved in the provision of an approved children’s service if it considers that there may be an unacceptable risk of harm to children if the person were allowed to remain on the premises or to provide education and care to children. Under new section 126, a notice issued under section 123 prohibits the person from doing one or more of the following: providing education and care to children for a children’s service, being engaged as an educator, employee, contractor, staff member or volunteer at a children’s service, or carrying out any other activity relating to a children’s service. In effect, the prohibition notice bans the person from being on the children’s service premises or from providing education and care services to children. The purpose of the right to privacy is to protect the individual’s interest in the freedom of their personal and social sphere. The courts have interpreted this right to potentially protect against restrictions on employment and business activity if the restriction sufficiently affects an individual’s personal relationships and capacity to have a private life. However, the restrictions in the Bill with respect to prohibition notices and the suspension or cancellation of approvals are reasonably proportionate to the legitimate purpose of protecting the safety and wellbeing of children. The effect of any suspension or cancellation of approval or any prohibition notice is limited to employment in a specific industry and is not of a kind that would give rise to social stigmatisation or serious impediment to earn a living. In particular, a prohibition notice may only be issued if, after considering all of the evidence, the Regulatory Authority forms the view that the person poses an unacceptable risk of harm to children. This imposes a high threshold. In my opinion, these provisions promote the rights of children to be protected under section 17(2) of the Charter. They are necessary to protect children from the risk of harm that may arise either at a children’s service premises or in the provision of education and care services. Therefore, any potential interference with a person’s privacy that arises from restricting their capacity to pursue employment of their choice will be neither unlawful nor arbitrary, and will be confined to the legitimate purpose of protecting children. The provisions in question contain safeguards to protect against the arbitrary exercise of power by the Regulatory Authority. In most cases, the Regulatory Authority is obliged to send a show cause notice to the relevant person before it suspends or cancels the person’s provider or service approval or issues the prohibition notice. A show cause notice informs the individual of the reasons for the proposed suspension, cancellation or prohibition notice and provides them with the right to make written submissions to the Regulatory Authority (sections 26, 32, 71, 77 and 124). The Regulatory Authority is obliged to consider any written submissions when deciding whether to suspend or cancel the approval or issue the prohibition notice (sections 27, 33, 72, 78 and 125(1)). In limited circumstances, the Regulatory Authority is permitted to suspend an approval or issue a prohibition notice without first issuing a show cause notice. This can occur where it is satisfied that there is an immediate risk to the safety, risk or wellbeing of a child (sections 28 and 73) or where it is necessary, in the interests of the safety, health or wellbeing of a child, to immediately issue a prohibition notice (section 124(2)). In my opinion, these powers are reasonably required in order to prevent any immediate risks to the safety, health and wellbeing of children while they are being educated and cared for by a children’s service. The powers enable the Regulatory Authority to act swiftly and responsively in the interests of the protection of children. Any suspension of approvals under sections 28 and 73 are temporary, and the power to issue a prohibition notice under section 124(2) is intended to be used rarely and in circumstances requiring immediate action only. Further, cancellation of a service or provider approval always requires a show cause notice to be issued first. In addition, the Act provides ways to challenge the Regulatory Authority’s decision to suspend or cancel a provider or service approval or issue a prohibition notice. A decision to suspend or cancel an approval is subject to internal review under new Part 5A and/or external review in VCAT under new Part 5B. It is also subject to judicial review, where applicable. In relation to prohibition notices, the Regulatory Authority is obliged to cancel the notice if it is satisfied there is no sufficient reason for it to remain in force. A person to whom the notice applies may also apply for cancellation of the notice by submitting relevant information to the Regulatory Authority (section 127). Judicial review is also available in respect of the decision to issue a prohibition notice, where applicable. Therefore, in light of the purpose of the provisions relating to suspending or cancelling approvals and issuing prohibition notices, as well as the safeguards in place to prevent arbitrary exercises of power, I do not consider these provisions to limit the right to privacy. Further, to the extent that these provisions may engage the right to a fair trial under section 24(1) of the Charter, in my view, the overall procedure is fair and therefore the right is not limited. Information sharing There are several new provisions relating to the collection, retention, use, disclosure and publication of information under the Act. Collection, retention and use of information by Regulatory Authority New section 161(2)(a) gives the Regulatory Authority a broad power to collect, hold and use information relating to the provision of children’s services to children, including information about outcomes for children and information about providers of children’s services. Not all information dealt with under this provision will be private in nature. However, to the extent that this provision does relate to private information, any interference with the right to privacy will be neither unlawful nor arbitrary. This provision only relates to information obtained by the Regulatory Authority during the performance of its legitimate functions under the Act itself. Any use of that information will be restricted to legitimate purposes under the Act. Further, the Regulatory Authority’s collection, retention and use of information about providers and nominated supervisors will be subject to the Information Privacy Principles under the Privacy and Data Protection Act 2014. In my opinion, the collection, retention and use of such information is reasonably necessary to effectively regulate the provision of education and care services for children. It allows the Regulatory Authority to make decisions and carry out its functions in regulating the industry with the most accurate and up-to-date information available. This enables the Regulatory Authority to protect the rights and interests of children by ensuring they are receiving appropriate education and care, thereby promoting their right to protection under section 17(2) of the Charter. Therefore, I consider new section 161 to be compatible with the Charter. Disclosure of information by Regulatory Authority New sections 166 and 167 of the Act provide for the sharing of information, both between bodies in different jurisdictions and from the Regulatory Authority to approved providers in certain circumstances. The first type of disclosure permitted by the new provisions of the Bill is disclosure between regulatory authorities and government agencies. New section 166(1) provides that the Regulatory Authority may disclose information in respect of a children’s service to the National Authority or a regulatory authority of a State or Territory under the National Law, or to any local, State or Territory or Commonwealth government department or public authority. This power is strictly confined to disclosure for the limited purposes specified in new section 166(2), including where the disclosure is reasonably necessary to promote the objectives of the Act. The objectives of the Act, contained in new section 8, are to ensure the safety, health and wellbeing of children attending children’s services, to improve the educational and developmental outcomes of those children, and to promote continuous improvement in the provision of quality children’s services. Section 166(2) also permits disclosure for the purposes of enabling or assisting the receiving regulatory authority or public authority to fulfil its powers or functions under the Act or National Law, or for the purpose of research or development of Commonwealth, State or Territory policy with respect to children’s services. This inter-jurisdiction disclosure mechanism is necessary to ensure that individual schemes in each jurisdiction are interconnected and that relevant regulatory bodies and government agencies are able to access all information necessary to effectively regulate the children’s services industry across Australia. The purposes for which information may be disclosed are closely defined in the Act and relate either to furthering the objectives under the Act or the fulfilment of particular functions and powers of participating regulatory authorities or government agencies. Further, I consider that the disclosure of information about approved providers and nominated supervisors is reasonable given that those persons have voluntarily agreed to participate in a regulated industry involving the provision of children’s services. In addition, new section 166(3) contains a safeguard to minimise the impact on a person’s right to privacy when disclosure is for the purpose of research and development. It requires the Regulatory Authority to remove the identifying details of any person who is not an approved provider or nominated supervisor, or who is not subject to a prohibition notice or a prosecution for an offence under the Act. As stated above, approved providers and nominated supervisors are likely to have a reasonable expectation that their identifying information may be disclosed under this Act, given that they have voluntarily agreed to participate in the industry. I also consider the disclosure of identifying details of a person who is subject to a prohibition notice or a prosecution for an offence under the Act to be reasonable to ensure that regulatory authorities in other jurisdictions are aware of persons subject to prohibition notices and prosecutions in Victoria in the event that any of those persons attempt to work in children’s services in another State or Territory. The second type of disclosure relates to disclosure by the Regulatory Authority to an approved provider, that is, a provider of children’s services that has been approved by the Regulatory Authority under new section 15. New section 167 allows the Regulatory Authority to, at the request of an approved provider, disclose to that provider, information about a person who may be the subject of a prohibition notice. However, this can only occur if the Regulatory Authority considers on reasonable grounds that the provider requires the information to comply with its obligations under the Act. I consider disclosure of this kind to be necessary to assist approved providers to self-regulate, thereby promoting a culture of compliance with the Act. For example, the provider may request the information about a prospective employee, contractor, educator or volunteer. If that person is subject to a prohibition notice, it would be reasonable for the Regulatory Authority to disclose that information to the provider to, in effect, warn the provider of matters relevant to engaging the prohibited person. Therefore, having regard to the circumstances in which information may be shared and disclosed, I conclude that new sections 166 and 167 will not unlawfully or arbitrarily interfere with the privacy of individuals and therefore not limit the right to privacy under the Charter. Duty of confidentiality—Right to the presumption of innocence New section 168 provides a safeguard in the form of a duty of confidentiality applying to persons exercising functions under the Act in relation to 'protected information’. 'Protected information’ is defined to mean information that is personal to a particular individual and that identifies or could lead to the identification of that individual, where that information came to the person’s knowledge because or in the course of exercising functions under the Act. This provision imposes a duty of confidentiality to prevent unauthorised disclosures by persons exercising functions under this Act. It enhances the protection of an individual’s right to privacy and promotes section 13(a) of the Charter. Section 168(1) provides that it is an offence to breach the duty of confidentiality. However, section 168(2) provides certain exceptions to the application of the duty in section 168(1), including where the information is disclosed in the exercise of a function related to this Act, where disclosure is required or permitted by law, where disclosure occurs with the consent of the person to whom the information relates, where the disclosed information relates to public court proceedings, or where the disclosed information is publicly available. 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 in section 25(1) is relevant where a statutory provision shifts the burden of proof onto an accused in a criminal proceeding such that the accused is required to prove matters to establish, or raise evidence to suggest, that they are not guilty of an offence. The exceptions in section 168(2) place an evidential burden on the accused in requiring them to raise evidence of the relevant exception; however, in my opinion, this provision does not limit the right to be presumed innocent. Section 168(1) provides a necessary safeguard against arbitrary disclosures of information, thereby promoting the right to privacy of individuals whose protected information may otherwise be shared. The exceptions in section 168(2) provide a mechanism by which accused persons exercising functions under the Act may avoid liability if they fall under a relevant exception. Although the exceptions place an evidential burden on the accused, in doing so, the legal burden of proof is not transferred to the accused. Once the accused has pointed to evidence of a relevant exception, which will ordinarily be peculiarly within their knowledge, the burden shifts back to the prosecution to prove the essential elements of the offence in section 168(1). I do not consider that an evidential onus of this kind limits the right to be presumed innocent, and courts in other jurisdictions have taken this approach. In my opinion, the offence provision attaching to breach of the duty of confidentiality does not limit the right to the presumption of innocence. Indeed, new section 168 provides a safeguard to protect against unauthorised disclosures of protected information, thereby promoting the right to privacy in section 13(a) of the Charter. Therefore, I consider section 168 to be compatible with section 25(1) of the Charter. Publication of information by Regulatory Authority New section 165(1) provides that the Regulatory Authority may publish the names of approved providers, approved services and nominated supervisors and the address of each children’s service premises, as well as other details prescribed in the regulations. The Regulatory Authority may also publish information about any enforcement actions taken by it under the Act, including compliance notices, prosecutions, and cancellations or suspensions of approvals (under new section 165(3)). In particular, new section 161(2)(c) gives the Regulatory Authority the power to maintain and publish registers of approved providers and approved children’s services. New sections 163(1) and 164(1) require the Regulatory Authority to keep a register of approved providers and a register of approved children’s services containing the name of the approved provider, the name and address of each children’s service, and other details prescribed in regulations. Any person, for example, a parent or guardian of a child seeking to find out details about a children’s service before engaging that service, may obtain a copy of, or extract from, the register of approved children’s services for a fee payable to the Regulatory Authority (under new section 164(3)). As new section 165(2) also requires the Regulatory Authority to publish the register on its website, the public is provided with online access to the register. Not all information dealt with under these provisions will be of a private nature. However, to the extent that the provisions relate to private information, any interference with the right to privacy will be neither unlawful nor arbitrary. The type of information that may be published is clearly specified, and publication of that information serves the necessary purpose of ensuring that parents and other members of the public are able to make informed decisions about their dealings with children’s services. Persons whose details may be published by the Regulatory Authority have voluntarily agreed to participate in an industry in which regulation is necessary to ensure that only appropriate persons provide children’s services, thereby promoting and protecting the rights and interests of the children attending a service. Furthermore, section 165(4) minimises the impact on a person’s right to privacy by requiring the Regulatory Authority to remove the identifying details of any person who is not an approved provider or nominated supervisor or is not subject to a prosecution for an offence under the Act. The Regulatory Authority must also remove the identifying details of a person with management or control of a children’s service if it is in the public interest to do so. The publication of the identifying details of an approved provider or a nominated supervisor or person who is subject to a prosecution for an offence under the Act, or for public interest reasons, is reasonable and necessary in a scheme where the right to young children’s safety and protection is paramount. I therefore consider that sections 161, 163, 164 and 165 are compatible with the Charter. Powers of entry and inspection for waivers and approvals Clause 8 of the Bill inserts new Part 3 of the Act, which includes certain powers of entry and inspection on the part of the Regulatory Authority. These powers interfere with the right to privacy; however, in my opinion, none of the provisions are unlawful or arbitrary, and therefore do not limit the right to privacy. Under new section 45, the Regulatory Authority may inspect a children’s service premises at any reasonable time for the purposes of determining an application for approval of a children’s service. Similarly, the Regulatory Authority has powers of entry and inspection over a children’s service premises and office of the applicant for the purposes of determining an application for service waiver (section 87(1)(b)) or a temporary waiver (section 94(1)(b)). Under sections 85 and 92, an approved provider may apply for a waiver to exempt them from complying with a particular requirement for a children’s service under the prescribed requirements of the regulations. For example, an approved provider may seek a waiver of the staff to child ratio in circumstances where it cannot comply due to staffing issues. These entry and inspection powers may interfere with the provider’s right to privacy under section 13(a) of the Charter; however, in my opinion, the interference is neither unlawful nor arbitrary. The Regulatory Authority may only exercise its powers for the limited purpose of assessing an application. As it is the provider who makes the application under new sections 42 (service approval), 85 (service waiver) or 92 (temporary waiver), and this is the 'trigger’ for the Regulatory Authority’s inspection, it is expected that in most cases, the provider would consent to or at least have an expectation of the inspection taking place as it is for the purpose of assessing their application. Further, section 45 specifies that any inspection for the purposes of assessing an application for service approval is required to take place at a reasonable time. Therefore, in my view, these provisions are appropriately confined and do not limit the right to privacy. Powers of entry, inspection, search and seizure for monitoring and enforcement Clause 8 of the Bill also inserts new Part 5B of the Act, which includes various powers of entry, inspection, search and seizure on the part of the Regulatory Authority for the purpose of monitoring and enforcement. Under new Part 5B, authorised officers are provided with particular powers of entry onto a children’s service premises for three main purposes. In my opinion, these powers are neither unlawful nor arbitrary and therefore do not limit the provider’s right to privacy. Some of the provisions also engage other rights under the Charter—I will discuss the right to property (section 20) alongside the right to privacy below and I will assess the compatibility of the provisions with other relevant rights separately below. First, two new sections provide the Regulatory Authority and authorised officers with entry and inspection powers for the purpose of ensuring the safety, health and wellbeing of children. New section 138(2) gives an authorised officer the power to enter and inspect any children’s service premises at any reasonable time for two clearly defined reasons. The first is to monitor compliance with the Act, thereby ensuring the safety, health and wellbeing of children and the quality provision of children’s services. The second is to obtain the contact details of the parents or guardians of all children enrolled at the children’s service in circumstances where the Regulatory Authority has asked the provider for this information under new sections 35 or 81 because, after issuing the provider with a show cause notice, the Regulatory Authority has determined to suspend or cancel the provider approval or service approval, and the provider has failed to provide the requested contact details of parents. This information is required to enable the Regulatory Authority to forewarn parents about its decision to suspend or cancel the provider or service approval and to ensure that parents can make an informed decision about alternative care arrangements for their children. Under section 138, authorised officers have wide powers to inspect the premises and any plant, equipment, vehicle or thing on the premises, make copies of documents found on the premises and take any document or thing at the premises (to the extent that the document or thing is used or is likely to be used in the provision of children’s services). Authorised officers also have the power to ask a person at the premises to answer questions or take reasonable steps to provide information or produce a document. New section 131 provides the Regulatory Authority with the power to enter a children’s service premises without a warrant if it reasonably considers that there is an immediate danger to the safety or health of a child or children being educated and cared for by the children’s service. The Regulatory Authority has the power to remove a child or children from the premises and use reasonable force if necessary. Although these powers are extensive, I do not consider them to constitute unlawful or arbitrary interferences with privacy. This provision is intended to apply in extremely limited circumstances, where entry onto the premises, removal of a child and/or use of reasonable force is necessary to prevent or mitigate an immediate danger to a child. There are internal safeguards to protect against arbitrary interferences with privacy in that any exercise of power must be 'necessary’ and any danger must be 'immediate’. Further, any force that is exercised must be 'reasonable’ in the circumstances for the protection of children. Given that the paramount objective of the Act is to ensure the safety, health and wellbeing of children attending children’s services, these powers are necessary to enable the Regulatory Authority to appropriately and effectively carry out its regulatory and enforcement powers under the Act. This may also engage other rights under the Charter, for example, the right not to be treated or punished in a cruel, inhuman or degrading way (section 10(b)) and the right to liberty and security (section 21(1)); however, in my view, given that any use of force under new section 131 must be 'reasonable’, the provision is appropriately confined so as not to give rise to any limit on those rights. Therefore, given the paramount purpose of ensuring the protection of children, I consider the powers in sections 138(1) and 131 to be reasonably aligned with the purposes for which they are to be exercised. Further, in most circumstances, these powers will operate in relation to business premises instead of private premises, and occupiers of such premises would have a limited expectation of privacy. If the premises is residential, then section 138(5) provides that an authorised officer may only enter if an approved children’s service is operating at the time of entry or with the occupier’s written consent. Second, new section 139(1) provides that an authorised officer may exercise the powers to investigate an approved children’s service if they reasonably suspect that an offence may have been or may be being committed under the Act. Section 139(2) allows the authorised officer to enter the premises of the approved provider, with any necessary assistants and at any reasonable time, with or without the provider’s consent, and exercise various investigatory powers. These include searching the premises, testing or photographing any part of the premises, taking a thing or sample from the premises for analysis or testing, and taking a copy or extract of a document. The authorised officer can also require the occupier to provide information or otherwise assist in the conduct of the investigation. Similarly to sections 138 and 131, the powers in section 139 can only be used in clearly defined circumstances. The powers of authorised officers are extensive; however, they are necessary for the important purpose of investigating suspected offences under the Act and ensuring compliance with the regulatory scheme. In all cases, the powers may only be exercised at a reasonable time and, in most cases, the powers would only be exercised at a business premises where occupiers would have a limited expectation of privacy. In the event that the powers are exercised at a residential premises, section 139(4) places a limit on this power by preventing an authorised officer from entering a residence unless the authorised officer reasonably believes that an approved children’s service is operating at the residence or the occupier of the residence has consented in writing. New section 140(1) extends the power in section 139 to the principal office or business office of the approved provider if the authorised officer reasonable suspects that documents or other evidence relevant to the possible commission of an offence against the Act are present there. The powers under section 140(2) are the same as those under section 139(2), however, the powers with respect to offices may only be exercised with the consent of the occupier. Section 140(3) contains a safeguard to ensure that, before entry, the authorised officer produces their identity card for inspection and informs the occupier of particular information, including the purpose for the search, the powers that may be exercised, and the right of the occupier to refuse to consent to entry or to the taking of any document of thing from the premises. Third, new sections 141(1) and 142(1) provide powers to authorised officers to enter premises upon the reasonable belief that a person is operating a children’s service without the necessary provider and service approvals, thereby in contravention of new section 99. The authorised officer must have reasonable grounds for such a belief. Section 141(1) gives an authorised officer the power to enter any premises (including residential or business) with the written consent of the occupier, for the purpose of determining whether a children’s service is operating without a service approval at or from the premises. Section 142(1) gives an authorised officer the power to enter any premises with a search warrant for the same purpose as in section 141(1). The authorised officer who exercises a power of entry under either section may do a number of things, including searching any part of the premises, inspecting or filming any part of the premises, copying or taking an extract of any document on the premises, and taking any thing from the premises. In my opinion, the entry and search powers in sections 141 and 142 are sufficiently constrained. Section 141(2) specifies that, before entry, the authorised officer must produce their identity card for inspection and inform the occupier of particular information, including the purpose for the search, the powers that may be exercised, and the right of the occupier to refuse to consent to entry or to the taking of any document of thing from the premises. It is only once these steps have been taken, and the occupier has given their informed consent, that the entry and search powers under section 141 are enlivened. Further, although the occupier’s consent is not required under section 142, the powers may only be exercised under the authority of a warrant. Having regard to the powers in sections 138, 131, 139, 140, 141 and 142, I consider that any interference with the right to privacy is lawful and not arbitrary. First and foremost, the powers are reasonably required to monitor compliance with the regulatory scheme and are limited to that purpose. They are necessary to ensure the detection and prosecution of offences against the Act, which assists the Regulatory Authority (and, more broadly, the industry) to promote the paramount right to protection of children under section 17(2) of the Charter. Further, the powers are proportionate to the purposes for which they will be used. In most circumstances, the search and entry provisions will operate in relation to business premises, as opposed to private residences where occupiers may have a higher expectation of privacy. In the event that the powers are exercised at residential premises, the provisions provide that the powers may not be exercised except in certain circumstances, including with the consent of the occupier. The provisions themselves also embed protections, including a requirement that certain inspections occur at a 'reasonable time’ and, if a children’s service premises is suspected of operating without a service approval, restrictions on the exercise of powers without the informed consent of the occupier or a search warrant. Therefore, I consider that any interference with privacy caused by the exercise of powers in new sections 138, 131, 139, 140, 141 and 142 is neither unlawful nor arbitrary. Accordingly, I consider those sections to be compatible with the right to privacy under section 13(a) of the Charter. Right to property The search and seizure powers in new sections 138, 139, 140, 141 and 142 may also engage the right to property under section 20 of the Charter, which provides that a person must not be deprived of their property other than in accordance with law. Those sections allow an authorised officer to seize and retain items from a children’s service premises, or from the principal or business office of an approved provider, for the purposes of monitoring compliance with the Act and/or obtaining evidence about whether an offence under the Act has been, or is being, committed. However, there are multiple safeguards in the Act in relation to the seizure and retention of property. First, sections 138(3) and 139(3) confine the taking of documents or things by an authorised officer to only those documents or things that are used or are likely to be used in the provision of a children’s service. Second, the Act regulates the retention and return of those things or documents to the owner. A document or thing may only be taken pursuant to section 138 after notice is given to the person in charge or to the occupier of the premises and must be returned within seven days. Section 143 regulates the retention and return of things taken pursuant to sections 139, 140, 141 and 142 by providing that the authorised officer must take reasonable steps to return the thing to the owner if the reason for the taking no longer exists. It also sets the maximum period of retention at 60 days (subject to limited exceptions) and provides a right of reasonable access to the owner while the item is in the possession of the authorised officer. In light of these factors, I consider that any deprivation of property caused by new sections 138, 139, 140, 141 and 142 will be temporary, lawful and therefore compatible with the right to property under section 20 of the Charter. Requirements to provide information to the Regulatory Authority or an authorised officer I will now address the human rights impacts of numerous new provisions in the Act, to be inserted by clause 8 of the Bill, that require a person to provide information to the Regulatory Authority. These new sections are sections 11, 14, 22, 35, 37, 39 and 40 (in Part 2 regarding provider approvals), sections 43, 44, 45, 53, 55, 56, 59, 64, 81, 83, 86, 87, 93, 94 (in Part 3 regarding service approvals), section 127 (in Part 5 regarding compliance with the Act), section 133 (in Part 5A regarding reviews) and sections 138, 139, 140, 141, 142, 145, 146, 147, 155 and 156 (in Part 5B regarding monitoring and enforcement). These provisions require a person to provide information in clearly specified circumstances to the Regulatory Authority. The circumstances in which information must be provided include for the purposes of provider and service approvals, for the purposes of variations, suspensions, transfers or reviews of such approvals, for the purposes of temporary waivers or service waivers, for the purposes of applications to lift prohibition notices, and for the purposes of monitoring and enforcing compliance with the Act. In all of the relevant provisions, the information that is sought from particular persons is reasonably required for the fulfilment of one of the specified purposes. The information that must be provided under the Act is, in some circumstances, likely to include personal information and may include information regarding an applicant’s criminal history, medical condition or financial status. It is particularly likely that persons will be required to provide personal information where the Regulatory Authority is assessing or reassessing whether they are 'fit and proper’ to provide services to children for the purpose of section 12 (see also sections 13 and 21). It is also likely that personal information will be required to be shared with the Regulatory Authority if it is investigating suspected non-compliance with the Act. To the extent that information required under these provisions relates to individuals, these provisions engage the right to privacy under section 13(a) of the Charter. However, any interference with the right to privacy caused by these sections is neither unlawful nor arbitrary. The instances in which persons must provide information to the Regulatory Authority are clearly defined in the Act. Furthermore, the provisions are necessary to uphold the rights of children to protection by ensuring that the Regulatory Authority is well-placed to make informed decisions about the fitness and propriety of particular persons to provide or engage in children’s services or be present at children’s service premises. For the same reasons, the provisions are critical for ensuring that the Regulatory Authority can properly monitor compliance with the Act and provide relevant, accurate and up-to-date information to the public, most importantly parents of children receiving children’s services, about children’s services. Further, the provisions only operate with respect to persons who have voluntarily agreed to be regulated by the legislative scheme under the Act, or who have applied to be. Therefore, to the extent that those persons wish to participate in the children’s services industry, the requirement to provide information to the Regulatory Authority in certain circumstances dually furthers the interests of those persons and protects the interests of children. Further, sections 35 and 81 identify the circumstances where an approved provider must provide the Regulatory Authority with the identity and contact details of all parents or guardians of children enrolled at a children’s service. These sections engage the right to privacy of those parents and guardians. However, I consider that any interference with such right is neither unlawful nor arbitrary. The circumstances in which such information is to be provided are clearly defined in the Act, and the purpose of sharing the information is to ensure that the Regulatory Authority is able to keep parents and guardians informed of any changes to the approval status of an approved provider or children’s service. This also ensures that parents and guardians are able to make informed decisions regarding where their children receive education or care services. I therefore consider that the new sections of the Bill relating to the provision of information to the Regulatory Authority or an authorised officer are compatible with section 13(a) of the Charter. Right to freedom of expression Section 15(2) of the Charter provides that every person has the right to freedom of expression. This includes the right to seek, receive and impart information and ideas of all kinds. Section 15(3) provides that special duties and responsibilities attach to the right of freedom of expression and the right may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons, or for the protection of national security, public order, public health or public morality. New section 100 of the Bill engages the right to freedom of expression by providing that it is an offence to knowingly advertise a service as a children’s service if that service has not been approved. The offence provision may interfere with the rights of providers of unapproved children’s services to express themselves by advertising children’s services. However, in my opinion, any restriction on the right to freedom of expression falls under the exception in section 15(3) as it is reasonably necessary to respect the rights of children and protect public health and public order. Services that have not been approved cannot be guaranteed to meet the standards enforced under the Act, and so could potentially pose a risk to the safety, health, and wellbeing of children in their care. This provision both protects the best interests of children and promotes public health and public order by ensuring parents can make confident and informed choices about providers of children’s services that can be entrusted with the care of their children. The right to freedom of expression also includes the right not to express oneself. As discussed above in the context of the right to privacy, there are several provisions in the Bill that compel individuals to provide information to the Regulatory Authority or authorised officers so as to enable them to carry out their functions in relation to monitoring and enforcing compliance under the Act. Other new sections require the display of certain information at the children’s service premises (for example, new section 112), or the communication to the Regulatory Authority, or relevant parents, of certain events (for example, new sections 35, 36, 37, 38, 39, 55, 56, 59, 69, 81, 82, 83, 84 and 114). These provisions thereby interfere with the rights of individuals not to express themselves. To the extent that these provisions engage the right not to express oneself, I consider that they fall within the internal limitation in section 15(3) of the Charter. These restrictions are reasonably necessary to respect and protect the rights of children to protection, particularly in line with section 17(2) of the Charter. The provisions are also reasonably necessary for the protection of public health and public order, specifically the safety, health, and wellbeing of children, so as to ensure the effective monitoring and enforcement of the regulatory standards in the Act. Any limitation on the right to freedom of expression is reasonably proportionate to these purposes. Accordingly, I consider that the provisions are compatible with the Charter. Right to be presumed innocent Section 25(1) of the Charter states that a person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. I will now address the provisions in the Bill that may impact this right. As discussed above, the right to the presumption of innocence 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. The Bill contains a number of new offence provisions which include various exceptions through which an accused may escape liability, including new section 168 in relation to breach of the duty of confidentiality as discussed above. These sections, read in conjunction with section 72 of the Criminal Procedure Act 2009, impose an evidentiary burden on the accused in requiring them to raise evidence of the particular exception. In my opinion, none of the provisions limit the right to be presumed innocent. Section 149 provides that a person must not, 'without reasonable excuse’, refuse to answer questions or produce documents as required by an authorised officer, or fail to assist an authorised officer in conducting an investigation under a search warrant. Section 150 provides that a person must not, 'without lawful authority’, destroy or damage any notice or document given, prepared or kept under the Act. By including the words 'without reasonable excuse’ and 'without lawful authority’, these provisions impose an evidential onus on an accused to adduce or point to evidence that goes to the excuse or authority. Similarly to new section 168 as discussed above, these provisions do not inappropriately transfer the burden of proof to the accused. Once the accused has adduced or pointed to evidence to establish the exception, the burden shifts back to the prosecution to prove the absence of the exception beyond a reasonable doubt. The defences of reasonable excuse and lawful authority relate to matters within the particular knowledge of the accused and, if the onus were placed on the prosecution, would involve proof of a negative which would be logistically difficult. Furthermore, the burdens do not relate to essential elements of the offences and are only imposed on the accused to raise evidence that supports the existence of a reasonable excuse or lawful authority. Therefore, I do not consider that the evidential onus imposed on the accused in these offence provisions limits the presumption of innocence under section 25(1) of the Charter. Right to freedom of movement Section 12 of the Charter provides that every person lawfully within Victoria has the right to move freely within Victoria and to enter and leave it, and has the freedom to choose where to live. The right to move freely within Victoria is not dependent on any particular purpose or reason for a person wanting to move or stay in a particular place. It encompasses a right not to be forced to move to, or from, a particular location. New sections 110 and 111 of the Bill limit the ability of certain people to attend the premises at which a children’s service is operating, thereby limiting their freedom of movement. Section 110 imposes obligations on approved providers and nominated supervisors to ensure that 'unauthorised persons’ do not remain on the children’s service premises while children are being educated and cared for unless they are under the direct supervision of an educator or staff member. An 'unauthorised person’ is generally someone who does not hold a working with children assessment notice or is not a parent or guardian of a child at the children’s service. Section 111 limits the right to freedom of movement by providing that the Regulatory Authority may make a direction that an 'inappropriate person’ be excluded from a children’s service premises. An 'inappropriate person’ is a person who may pose a risk to the health, safety and wellbeing of a child attending the service, or whose behaviour or state of mind is such that it would be inappropriate for that person to remain on the premises while children are present (for example, a person under the influence of drugs or alcohol). Further, new section 155(2)(c) provides the Regulatory Authority with powers to compel approved providers, nominated supervisors, staff members and volunteers at a children’s service to appear before it to give evidence or provide documents if it reasonably suspects that an offence has or may have been committed against the Act. This provision limits a person’s freedom of movement to the extent that the person may be compelled to be physically present before the Regulatory Authority at a particular location at a specified time for the purpose of giving evidence or producing documents. The right to freedom of movement is not an absolute right and may be subject to reasonable limitations pursuant to section 7(2) of the Charter. In my opinion, the limitations on the right to freedom of movement in sections 110 and 111 are reasonably necessary for, and directly and rationally connected to, the purpose of preventing harm to children. They ensure that children are protected from exposure to unauthorised or inappropriate persons who may present a real risk to their safety, health or wellbeing. Their operation is limited to the children’s service premises and does not otherwise affect freedom of movement outside these premises. In any event, unauthorised persons are permitted to attend the premises if they are supervised by an educator or other staff member of the service. And although inappropriate persons will be entirely excluded from such premises if the Regulatory Authority makes a direction to that effect, such directions are intended to be used as an emergency measure of limited duration. If appropriate, a person who considers they have been wrongly subject to such a direction may seek judicial review of the Regulatory Authority’s decision. Similarly, the limitation on the right to freedom of movement in section 155(2)(c) is reasonably necessary for the furtherance of investigations under the Act. Such investigations are integral to the effectiveness of the regulatory regime and, in a more general sense, to advance the best interests of children receiving children’s services. The provision compels particular individuals to participate in the Regulatory Authority’s investigation of suspected offences under the Act when those individuals have knowledge or insight into the relevant events or persons involved. This measure is required to ensure the cooperation of participants in the regulatory scheme. In my opinion, there are no less restrictive means available to achieve the purposes of the limitations. Therefore, I consider that the limitations on the right to freedom of movement in new sections 110, 111 and 155(2)(c) are demonstrably justifiable and the provisions are compatible with the Charter. Privilege against self-incrimination Section 25(2)(k) of the Charter provides that a person charged with a criminal offence is entitled not to be compelled to testify against themselves or to confess guilt. New Part 5B of the Bill contains various sections that compel persons involved in the provision of children’s services to answer questions, provide information or produce documents in certain circumstances. The privilege against self-incrimination is expressly preserved by new section 152, which states that an individual may refuse or fail to give information or do any other thing that they are required to do under the Act if it might incriminate them. Further, new section 153 provides that an authorised officer must advise a person of the effect of section 152 before requiring them to answer a question or provide information or a document so as to ensure that they are aware that the privilege against self-incrimination is not abrogated. There are three sets of circumstances in which the privilege will not apply. First, it does not extend to the production of documents that are required to be kept under the Act. Nevertheless, section 152(3) provides an immunity in respect of such documents obtained by the Regulatory Authority under its coercive powers, stating that any document that is required to be kept under the Act that is produced by an individual or any information obtained directly or indirectly from that document produced by an individual is not admissible in evidence against the individual in any criminal proceedings (except for criminal proceedings under the Act) or in any civil proceedings. For use in other proceedings, that information would need to be re-collected with those proceedings as the purpose. To the extent that documents may be used in criminal proceedings under the Act, this provision may limit the right to the privilege against self-incrimination. Although the privilege against self-incrimination is important, courts have interpreted it as being subject to reasonable limitations. In this case, the purpose of the limitation in section 152(3) is to ensure that the regulatory regime can be adequately monitored and enforced, with the ultimate aim of protecting children from harm. It is necessary that such documents are available to be used as evidence in proceedings under the Act for the purpose of enforcing the regulatory scheme. Without those documents, it would be difficult to prove breaches of many of the regulatory obligations under the Act, particularly those that require record-keeping. I also note that the only documents affected are those which the Act specifically requires to be kept, so it is appropriate that they be available in proceedings under the Act. In any event, case law indicates that the privilege against self-incrimination is stronger in relation to oral testimony than documentary evidence, particularly as in this case where documents are required to be kept as part of a regulatory regime. Therefore, given that the limitation gives effect to the best interests of the child as protected by section 17(2) of the Charter, in my opinion, it is reasonably justified under s 7(2). The second exception to section 152 is in relation to providing the individual’s name or address in accordance with the Act. However, in my opinion, such information does not constitute information that would tend to incriminate the person, and so the privilege against self-incrimination does not arise in these circumstances. The third exception to section 152 is in relation to anything that is required to be done under new sections 155 and 156, which provide that the Regulatory Authority may require a person involved in the provision of children’s services to answer questions, provide information or produce documents if it reasonably suspects that an offence has or may have been committed against the Act. The Act distinguishes between, on the one hand, documents produced under sections 155 and 156 and, on the other hand, answers and information provided under sections 155 and 156. Section 159(2) provides an immunity in relation to answers and information disclosed under sections 155 or 156, such that answers and information, as well as information obtained directly or indirectly because of answers or information, are not admissible in evidence against the individual in criminal proceedings (except proceedings under section 158 or 182 of the Act) or any civil proceedings. Section 158 relates to hindering or obstructing the Regulatory Authority in its exercise of powers under sections 155 and 156, and section 182 relates to providing false or misleading information or documents to the Regulatory Authority. To the extent that self-incriminating answers or information are used in proceedings under section 158 or 182, this may limit the right to the privilege against self-incrimination. However, given that information or answers obtained pursuant to the powers in sections 155 and 156 may themselves form part of the obstruction or hindrance, or may constitute false or misleading information, I consider that this exception is reasonably necessary to deter future attempts to hinder, obstruct or mislead investigations by the Regulatory Authority under the Act. In relation to documents containing self-incriminatory information that are produced pursuant to sections 155 and 156, section 159(3), like section 152(3), allows for documents of this kind to be used in criminal proceedings under the Act. This may limit the privilege against self-incrimination. To the extent that documents obtained pursuant to sections 155 and 156 may be used in criminal proceedings under the Act, I refer to the discussion above in relation to section 152(3). Therefore, in my opinion, the exceptions to the privilege against self-incrimination facilitate the proper enforcement of the regulatory regime by enabling successful prosecutions for failure to comply with the regime in specific circumstances. Further, I note that the limitations apply only to persons who voluntarily choose to participate in the provision of children’s services, which is a highly regulated industry. They do not apply to members of the general public. The Regulatory Authority requires the cooperation of participants in the industry to monitor and ensure compliance. Given that the limitation on the privilege against self-incrimination only applies in confined circumstances and is necessary to ensure the proper enforcement of the regulatory regime so as to protect the best interests of children, I consider that any limitation is demonstrably justified under section 7(2) of the Charter. Therefore, I consider sections 152 and 159 to be compatible with the Charter. The Hon. James Merlino MP Minister for Education