12 March 1991 - Current
Health and Child Wellbeing Legislation Amendment Bill 2017
16 November 2017
|ASSEMBLY||Statement of compatibility||JILL HENNESSY|
Ms HENNESSY (Minister for Health) 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, (the charter), we make this statement of compatibility with respect to the Health and Child Wellbeing Legislation Amendment Bill 2017.
In our opinion, the Health and Child Wellbeing Legislation Amendment Bill 2017, as introduced to the Legislative Assembly, is compatible with human rights as set out in the charter. We base our opinion on the reasons outlined in this statement.
The bill amends the Child Wellbeing and Safety Act 2005, the Health Complaints Act 2016, and the Public Health and Wellbeing Act 2008.
Part 2 of the bill amends the Child Wellbeing and Safety Act 2005, particularly part 5A of that act, which provides for a reportable conduct scheme. That scheme requires the head of an entity (entities required to comply with the scheme are set out in schedules 3, 4 and 5 of the act) to notify reportable allegations about the entity's employees (as defined in section 3) to the Commission for Children and Young People (commission), and to investigate those allegations. The commission also has power to initiate its own-motion investigations into reportable allegations and to advise the Department of Justice and Regulation of substantiated reportable allegations for the purposes of assessments and reassessments of working with children checks. The bill makes a number of amendments, including to clarify:
the range of kinship and foster care arrangements that are covered by the scheme (see clause 3(1)(b));
the definition of the 'head' of an entity to which the scheme applies (see clause 3(1)(c));
that part of an entity or a part of a class of entities can be exempt from the scheme (see clause 4). This would mean, for example, that parts of an entity not sufficiently connected to children or parts of an entity located outside of Victoria can be exempt;
that regulations under the act may enable information to be shared with interstate, territory or commonwealth bodies, for example, the Australian Capital Territory and New South Wales ombudsmen, that are responsible for administering reportable conduct schemes in those jurisdictions (see clause 6);
that secretaries of departments may delegate their powers, functions or duties in their capacity as the head of an entity (see clause 7).
The bill also makes a number of minor and technical amendments with respect to prescription of the entities which must comply with the child safe standards (see clauses 3, 8–15) including to ensure that entities that engage in child employment to assist the organisation to provide or produce goods are also captured (clause 3(1)(a), 3(3) and 12(2)).
Part 3 of the bill amends the 'no jab, no play' provisions of the Public Health and Wellbeing Act 2008. These provisions require early childhood services to ensure that a child is age appropriately immunised or has an appropriately certified medical contraindication to immunisation before a child is enrolled in the service. The bill amends the act to provide for a definition of 'age appropriately immunised' that aligns with the commonwealth immunisation requirements, but also allowing for the state to specify other child immunisation requirements (see clauses 16, 17, 20 and 22). The effect of the amendment is that an extract from the commonwealth Australian Immunisation Register is required to evidence a child's immunisation status under the 'no jab, no play' provisions (unless other documentation or requirements are declared by the Secretary to the Department of Health and Human Services as being acceptable). Clauses 19 and 21 provide for additional obligations upon parents to provide up-to-date immunisation certificates and upon early childhood services to ensure that occurs. The bill also amends the Public Health and Wellbeing Act to provide for reporting and collection of information relating to anaphylaxis (clauses 18 and 23).
Finally, the bill makes amendments to the Health Complaints Act 2016 to provide who may bring proceedings under the act.
Human rights issues
Rights of children (section 17)
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.
The bill makes amendments to the reportable conduct scheme and the operation of child safe standards under the Child Wellbeing and Safety Act 2005, which are aimed at the protection of children. Clause 4 of the bill enables the exemption of part of an entity from the reportable scheme. The purpose of this provision is to ensure that parts of an entity such as those not sufficiently connected with children or those operating outside Victoria, are not inappropriately subject to the scheme. Any such regulations would be subject to examination by the Scrutiny of Acts and Regulations Committee, pursuant to section 21 of the Subordinate Legislation Act 1994. Accordingly, I consider that the provisions are compatible with the rights of children in section 17(2) of the charter.
Part 3 of the bill makes amendments to the 'no jab, no play' provisions of the Public Health and Wellbeing Act. The human rights implications of those provisions including in relation to section 17(2) of the charter have already been the subject of a statement of compatibility, particularly in light of the importance of children being appropriately immunised and the potential impact upon unimmunised children accessing child care. The amendments made by this act, including a definition of 'age appropriately immunised' that encompasses state immunisation requirements and additional obligations upon parents and early childhood services with respect to provision of up-to-date certificates, does not impact upon that assessment. The prescription of state immunisation requirements will be subject to the charter, including the rights of children to such protection as is in their best interests under section 17(2).
Rights of families and privacy (sections 13 and 17)
Section 17(1) of the charter provides that families are the fundamental group unit of society and are entitled to be protected by society and the state. Section 13(1) of the charter protects against unlawful and arbitrary interferences with one's privacy, family and home.
The reportable conduct scheme in the Child Wellbeing and Safety Act 2005 already captures specified foster care and kinship care arrangements. The amendments in clause 3(1)(a) of the bill clarify the scope of coverage. The extension of the scheme to these arrangements engages the rights in sections 17(1) and 13(1) of the charter, as it has the potential to impact the privacy of the individuals concerned as well as their relationships with each other, particularly between the carer and the child. However, any such interference is lawful and reasonable in light of the importance of the protection of children in out-of-home care.
Information privacy (section 13)
Section 13 of the charter also protects against unlawful and arbitrary interferences with privacy.
Clause 6 of the bill expands an existing power at section 16ZC of the Child Wellbeing and Safety Act 2005 for regulations to prescribe other persons or bodies with whom the commission, entity head and a regulator may share information. Clause 6 clarifies that regulations can also be made that enable information sharing with commonwealth, interstate and territory persons or bodies. Those regulations will be subject to examination by the Scrutiny of Acts and Regulations Committee, pursuant to section 21 of the Subordinate Legislation Act 1994. Further, any information that is shared will be subject to the information privacy protections under the relevant commonwealth, interstate or territory laws and will be limited to sharing for prescribed matters and where relevant to the person's or body's statutory functions. The sharing of information between the commission, entities and regulators complying with the reportable conduct scheme and relevant interstate, territory and commonwealth bodies is important to ensuring the protection of all Australian children. For example, to enable cross border information sharing with police and reportable conduct schemes in other jurisdictions. Having regard to these matters, as Minister for Health I consider that these provisions are compatible with the right to privacy.
The anaphylaxis reporting requirements in clauses 18 and 23 will involve the reporting and collection of information about anaphylaxis. To the extent it may involve personal information, it is necessary in order to pursue the important public health and wellbeing objectives of the scheme and any such information will be the subject of privacy protections contained in the Health Records Act 2001. New section 130C permits the disclosure of the information collected by the secretary. This disclosure is lawful and is not arbitrary as the secretary may only provide the information to a prescribed body if the secretary considers it is in the public interest to do so. Accordingly, as Minister for Health I consider that the provisions are compatible with the right to privacy in section 13 of the charter.
Hon. Jill Hennessy, MP
Minister for Health