12 March 1991 - Current
Children Legislation Amendment (Information Sharing) Bill 2017
21 February 2018
|ASSEMBLY||Second reading||HEIDI VICTORIA|
Debate resumed from 13 December 2017; motion of Mr FOLEY (Minister for Housing, Disability and Ageing).
Ms VICTORIA (Bayswater) (16:14:59) — I rise to speak on the Children Legislation Amendment (Information Sharing) Bill 2017. This bill comes into Parliament in response to a number of inquiries. There were several major inquiries, including 20 into child deaths, which found that inadequate sharing of information meant that agencies were unaware of the risks that each one of them was seeing quite separately — so no information sharing had taken place. Of course it was very hard then to have a picture painted of what was happening to some of these children. In most instances there was family violence, and as I said, there was no mechanism by which information could be shared.
When the Liberal-Nationals coalition came to government in 2010 we inherited what I would say was probably the worst child protection crisis that I had certainly ever seen in this state. That was left by the Bracks and Brumby governments. I remember, as I am sure many in the house would, the front pages over and over again telling of children in out-of-home care who had not been attended to by the system. The number that were having to go into protection was going through the roof. I do remember some children dying. There were children in the system who were being abused and in some cases being raped. Some were being placed in the care of sex offenders. These are obviously things that are totally unacceptable. Many were falling way behind at school. Child protection workers were leaving in droves. Obviously there was a lot of stress on them. It is one of those thankless jobs that needs to be done, and I want to place on record my thanks to everybody who works within the child protection area. It must be harrowing what they see day in, day out.
I remember going to visit one of our great foster care organisations, Anchor, in Knox, some years ago now and being in tears. They actually had the box of tissues ready for me as they told me some of the stories, obviously de-identified, of the cases that were coming across their desk at the time. What those men and women had to try and solve and nip in the bud at the stage they had got them, which was quite often down the track, so that these children were not irreparably damaged for life, was harrowing to say the least. I do thank every single one of them who puts their heart away from their sleeve and tries to solve problems that are sometimes not obviously solvable. Those who work within child protection are right up there for me. A large percentage of foster carers were quitting the system — about 60 per cent after eight years. They were frustrated by what they were dealing with, and the safeguards that were there were highly inadequate.
One of the first actions we took when we came to government in 2010 was to deliver on our promise to undertake an inquiry, and of course that was the Protecting Victoria's Vulnerable Children Inquiry. There were also significant boosts to funding, particularly in the early days. That Parliament sat for the first time in December 2010, and the government actually announced the inquiry on 31 January 2011, so the very first time that it was available to us was when it was announced. That was pretty fast action, but it needed to be done.
With the inquiry announced at the end of January, at the time of its launch the then Premier, Ted Baillieu, said, 'Thousands of vulnerable, at-risk children were neglected by the previous Labor government, and its legacy is a child protection system in crisis'. The inquiry was led by the Honourable Philip Cummins, Emeritus Professor Dorothy Scott, OAM, and Bill Scales, AO, with a report being tabled in 2012. Immediately, actions from the inquiry's recommendations started to be put in place.
In mid-2012 the Parliament's Family and Community Development Committee started its now very famous Betrayal of Trust inquiry into the handling of child abuse by religious and other organisations. I want to again acknowledge my colleagues from both sides of the chamber who sat through the most gruelling testimony sessions. I know that every single one of them has been changed for life by what they heard, and I thank them so much for their dedication to that. I especially place on record my thanks to Georgie Crozier, in another place; the work that she did during that inquiry was phenomenal. That report was tabled in November 2013.
These two groundbreaking coalition inquiries laid the foundation for some of the most significant improvements to the system, including the ones made by the bill that we are looking at today. Those inquiries, the Victorian Auditor-General's Office reports, the Commission for Children and Young People reports, the Coroners Court child death inquiries and the Royal Commission into Family Violence have all shared the view that information sharing needs to be improved. Those inquiries have been really important in getting to the stage we are at today. As I said, there were a lot of individual cases that were looked at during those inquiries and I am guessing by the department in the lead-up to this legislation. From 43 individual child death inquiries it was found that in 20 cases it might have helped if there had been better sharing of information. That is an outstanding number. That is basically what is addressed by the bill we are considering today.
The bill primarily does two things. Clause 8 inserts new part 6A into the Child Wellbeing and Safety Act 2005 to establish a child wellbeing and safety information-sharing scheme that will enable specific entities to share information, and that needs to be in a timely and effective manner. That is to promote the safety and wellbeing of children. I am going to come back to some of that in a moment.
Clause 10 inserts new part 7A into the Child Wellbeing and Safety Act 2005, the principal act, to establish a register of children born or residing in Victoria to improve the wellbeing and safety of children — again I am going to come back to that definition — and support their participation in government-funded programs and services. Obviously there are, as with any bill that comes before the house, some consequential amendments that will be dealt with, but they are the two main things that we have been looking at.
We have really had to go through this with a fine-tooth comb, particularly after reading this on the introduction print explanatory memorandum:
Note: replacement explanatory memorandum lodged with corrections to clause notes 23, 25 and 26 on page 44, clause note 27 on page 45. In each of these clause notes, an incorrect cross-reference to clause 21 has been changed to clause 2.
Whoops! If you are going to bring in something as potentially groundbreaking as this legislation, you have got to get that sort of thing right.
Aspects of this bill mirror a lot of what is happening in the New South Wales act. With what is going on obviously here in this state to do with crime and then when we compare that to the crime rates in New South Wales, perhaps there are other acts that this government can have a look at and say, 'We're not doing things so well. Perhaps we need to look north of the border for inspiration'. I invite the Andrews Labor government to do that.
The bill allows various organisations to share information through an IT system that should allow people to see issues emerging. Who those people, or information-sharing entities, will be has not yet been released. These apparently will be revealed through regulation. They will be frontline practitioners, and they may include entities such as maternal and child health centres, kindergartens and schools, Child First family violence specialist services, child protection, Victoria Police and the courts. It will be really interesting to see whether mental health practitioners and/or doctors will be included to help identify parents who might be at greater risk. That is one thing I would like clarification on. Will childcare centres also be worth including? Throw it out there after some of the consultation. There are concerns about the minister being able to chop and change who these people might be through regulation, and we want some certainty on that.
In the past a maternal and child health centre might have identified a parent exhibiting risky behaviour or a kindergarten might have found some bruising, but the two organisations have had no way of seeing each other's information. The idea here is that they are able to see those sorts of details. We will come back in a moment to the exposure of those details and how detailed that will be. There is a three-part test to determine what can be shared, and an information request must be met if it passes the test. Firstly, the entity will be able to voluntarily disclose or request confidential information about any person for the purposes of promoting the wellbeing or safety of a child or group of children.
I want to go back — and I alluded to this earlier — to the definition of wellbeing. I actually looked it up because everybody's idea of wellbeing can be slightly different. It is one of those things that is highly, if you like, personalised. If you have a look at the Google Dictionary definition, it says 'the state of being comfortable, healthy or happy'. But if you look at Dictionary.com, it says 'a good or satisfactory condition of existence; a state characterised by health, happiness and prosperity'. I would question Dictionary.com and Google as obviously not having exactly the same definition, but which one are we going to look at when we are talking about the wellbeing of a child? Is prosperity something we need to look at? What is the actual definition of wellbeing?
I know that Georgie Crozier as shadow minister in this area in another place has asked those questions of the department and, from my understanding, has not been able to secure a full definition of what 'wellbeing' is going to encompass. We are seeking some clarification on that. I think that is incredibly important, because obviously that will be one of those benchmarks by which we look at the parts of information sharing and how far that information sharing can go. Which part is it? If the child is not prosperous, as in one of these definitions, does that then set off red flags? I would assume not, but we cannot assume. We are the lawmakers, and we must make the law as watertight as possible.
Secondly, the entity providing the information must reasonably believe that disclosing the information may assist the receiving entity to undertake one of the following activities for a child or group of children: make a decision, assessment or plan; initiate or conduct an investigation; provide a service; or manage any risk.
Thirdly, the information must not be excluded information — 'excluded' being the important information there. However, if sharing information is likely to result in physical, emotional or psychological harm to a child or put them at risk of harm, the threshold of promoting the wellbeing and safety of the child would not be met and the information could not be lawfully shared under the scheme. Again, because we are talking about that threshold of wellbeing we need to know what the definition is, because all of these things become a little bit flimsy if we do not know what that threshold is.
Of course that takes into account the rights of the child, but at what stage? Obviously I do not want to stand in the way of it being discovered that a child is being abused or not treated in the best possible way, but have the rights of the parent been thought of in areas where it is not a child abuse situation? We do have to think about the privacy laws in this state, and what we are doing is absolutely setting them on their head. It is going to be a major cultural shift, and I think we need to look at this very, very carefully. Yes, for the sake of the child, but what information will be shared that will be open to be seen by, for example, a principal of a school — something that all of a sudden reveals information that has been spoken about by the child and that is in a file somewhere else? Things that are not relevant to the case but nonetheless are about a parent or a guardian will now be open and exposed. I think there are some real problems around this.
The word 'promoting' is, I think, a critical part of this. The bill seeks to promote the child's wellbeing. Promoting the child's safety and wellbeing obviously takes precedence over privacy, but we have got to know where that line is going to be drawn. The minister admitted that in the second-reading speech when she said:
The agencies that work with our children and families every day have become reticent and deterred when it comes to sharing information about a child.
Reticent and deterred? Mmm. The speech continues:
This arises for a combination of reasons:
people are confused about when and what they can share under the law …
As I have just said, I do not know that this bill 100 per cent clarifies that, and these are the minister's own words. The speech continues:
they may fear punitive consequences if they get it wrong; and
privacy appears to have taken on a higher cultural value than the wellbeing and safety of individual children.
Of course nobody wants that to happen, but where is the balance? As soon as any information is requested, Victorians will need to know — if they are going to get their heads around this — what that cultural shift is going to be and whether or not they can go along with it.
The information is then going to be shared through Child Link, which is an IT platform. As soon as I hear Labor and IT platforms I go, 'Uh-oh! We have potential problems here'. I am going back into a little bit of history here, but it is really, really important to know what has gone on in the past with IT and databases and IT platforms. Based on lots of previous reviews and inquiries, Child Link will contain basic identifying information about a child, including the child's name, birthdate and sex. I am okay with that. It will contain key familial relationships, including carer and sibling information. That is okay. It will contain enrolment and participation in key universal childhood services and programs, including maternal and child health services, supported playgroups, funded kindergarten programs and schools. I might deal with that now.
If we look at that and we say that every child who is born in Victoria is going to be enrolled on this database, the Australian Family Association has written I think to all members of Parliament, and I have picked up on this. They are very, very worried, and I can understand their fear here. They say that one of the things the bill proposes is to:
establish a scheme for specified entities to share information to promote the wellbeing and safety of children; and
establish a register of children born or resident in Victoria to improve the wellbeing and safety outcomes for those children and to monitor and support their participation in government-funded programs and services.
The writer of the email, who is the Victorian president, Terri Kelleher, says:
This raises many questions about the consequences (perhaps unintended) of the bill's proposals, such as:
Why is the privacy of all parents and families and children to be invaded with all prescribed information about every child to be collated and recorded for government agencies and services to assess?
She goes on to say:
Will the bill mean families of children who are not at risk to be monitored as to what government services (kindergartens, government schools, vaccinations) they use or access?
The bill also provides that the Child Link will also contain information in relation to children who are registered for homeschooling.
She goes on to say:
Child Link will be accessible by a range of professionals who deliver government-funded services to children and families and will assist in early intervention and the provision of services to children primarily by, among other things, enabling those professionals to monitor and support children who are not participating in services for which they may be eligible. Will it mean children who are homeschooled will be monitored because they are not enrolled in a registered school?
That is a logical question. She goes on to say:
The AFA also has concerns about privacy of the types of information to be shared and what agencies and services will have access to it.
I hope in the course of the debate that that sort of information will be revealed, not only just to the state opposition but also to the people of Victoria, who have the right to know.
I want to go back to what I was saying about some of the things that Child Link will contain. As I said, it will also contain contact details for services which the child has been in or is engaged with. Child Link will register each child in Victoria at birth or when the child comes into contact with a universal or targeted child service in Victoria. Child Link will not collect or contain any case notes, professional opinions or health records, but these of course might be easy to obtain by information-sharing entities. Who can access Child Link is to be determined by regulation. It will be more limited in access. For instance, only trained and senior staff would have access in schools. Well, do the senior staff have to be trained, and who is considered senior? Who is considered trained? What level of training will they have? And if it is like all other training, if it is something that you are not using on a constant basis, will they remember what to do with it?
If we have a look at the statistics, about a quarter of children born in 2011 in Victoria are likely to come to the attention of child protection sometime before reaching the age of 18. I found that statistic very hard to believe, but it is there, it is a stat and it is something we should not be in any way pleased with. We obviously need to make sure that those sorts of stats are wiped clean and go down as quickly as possible. It was believed that the cost of child abuse and neglect in Victoria in 2009–10, at the peak of the crisis under Labor, was about $1 billion. That was primarily used for child protection, out-of-home care and intensive family support services.
This bill has been quite a while coming, but it is here after just under three and a half years of the government dragging its feet in this area. I would have liked to have seen this come in quite a lot earlier. Places like New Zealand, the UK, Scotland and New South Wales all have similar systems already up and running. The biggest concern for me is, as I flagged before, the IT system. I cringe when I think about the record of Labor governments and their handling of IT systems here in Victoria. You cannot really go past — and you cannot forget — things like ultranet; Link, which was the law enforcement assistance program (LEAP) replacement, which was for the police department; or the client relationship information system (CRIS). This was part of the crisis in child protection during the last Labor government, before the last Liberal-National government.
A scathing report by the Nous Group in 2006 found that the new client relationship information system took almost double the time to register a notification of child abuse as the old IT system it replaced. So if you looked at the client and service information system (CASIS), which took about 38 minutes to enter the data, versus the new one, CRIS, which took 73 minutes, it is no wonder people were burning out and no wonder people working in the area were leaving the system. The 2006 Nous report found that there was a significant increase in workload for intake workers between CASIS to CRIS for reasons including things like the significantly increased amount of time required for child protection workers to enter the basic data, getting a much slower response time out of CRIS, the increased administrative workload and the increased difficulty in performing even the most basic of tasks using CRIS. In 2009 it was revealed that the cost of CRIS had blown out from $29 million to $95 million. You do not have to be a grade A student in maths to know that that is a big difference. It is more than three times the amount. And of course there were further costs expected.
Other IT failures by the previous Labor government were RandL, the VicRoads Licensing System; Myki — I do not even have to go there — and of course HealthSMART. There were extraordinary cost blowouts, time blowouts, mismanagement and misuse. According to the Ombudsman — so do not take my word for it — there was abject waste and simple epic failure.
We have to ask whether or not Labor governments ever actually get ICT right. Because we are dealing in such a fragile environment with the one we are talking about here today, I am tentative. I would like to say it may be a great idea. In fact we want sharing to happen, but I am frightened of the stuff-ups that can happen. I will be watching this like a hawk because we are dealing with people's lives — young, vulnerable people's lives — and we cannot afford to have this one go wrong. This is of course incredibly serious. The system needs to work. It needs to be secure, and cybersecurity is one of those ever increasing issues that we as lawmakers deal with and of course the experts are rightfully concerned about.
The question is: will this actually achieve things? I think it will. I think information sharing, which has certainly been a recommendation across all of those reports I spoke about earlier, is critical. The minister's second-reading speech said things to the effect that, 'This will save lives'. We have to say we hope so, but will those that have access actually use the system? Will it be like that CRIS system, where people were reticent to use it because it was so cumbersome? Will they see the warning signs?
It is not a miracle solution. There is so much else. This is an IT system, and we have got to remember that; the data is only good as feedback to us in the way it is used — by the way the data is input but also in the way that the data is then used by those in the system. Who is going to be tracking the inputs? Is there some sort of an algorithm that flags the highest risk cases to someone, and if so, to whom? And what are their rights and obligations to go forward with that?
If it is just left to doctors and teachers, will they be proactively looking ahead? They are so busy as it is. Will they be sitting trawling through cases to see if there are red flags? I doubt it. So I want to know who is going to be looking at this. Like most IT systems or like most data-based systems it would be fair enough to make the entries, but the entries are no good if you are not pulling that data back out in a meaningful way.
The scope, the guiding principles and the necessary mechanisms as to how this bill will be implemented are not outlined in this bill to my satisfaction. As I say, in principle some of the aspects of this are great; some are not. This is going to be left to regulation, which worries me to some extent.
Privacy of course is the major concern. In the couple of minutes that I have left I am going to deal with that. This is a new regime. The rules must be made clear. There are concerns in the industry that parental rights might be infringed, which I alluded to earlier. Although the bill stipulates that it may take into account the views of relevant family members, the bill does not otherwise state this as a guiding principle, hence the information still can be shared even without consent, and I think that is what troubles most of us.
There needs to be a clearer definition of 'wellbeing' for my liking. That does not happen, and certainly amongst my colleagues we have major reservations about that. There need to be levels of indicators as to what a child's wellbeing is going to be. The establishment of Child Link is certainly important, I think, but we need to take all of those other things into account.
We have consulted widely on this. Experts who have brought out concerns, some of which I have raised and some of which I have not had a chance to raise yet, include the Foster Care Association of Victoria, Merri Health, the Victorian Council of Social Service, the community services division of the City of Greater Dandenong — they have all had concerns about the bill's implementation process, the access mechanisms, time frames, privacy and security measures and the lack of flexibility of how data can be analysed — the Law Institute of Victoria, together with Domestic Violence Victoria, Victoria Legal Aid, No to Violence, the Men's Referral Service, the Women's Legal Service Victoria and the Domestic Violence Resource Centre Victoria.
Safe Steps have written a joint submission to the Department of Health and Human Services outlining their concerns regarding the legislation around privacy, breadth of sharing of information and of course the lack of consent. So it is not just the opposition who are saying this is not quite right. Fundamentally the idea of having a sharing system is good, but there are so many holes in this one. We cannot afford to get it wrong. There are vulnerable children and families out there, and if we get this IT wrong, if the Labor government gets this one wrong, the ramifications are so, so serious.