Hansard debates

Ben CARROLL (Niddrie – Minister for Education, Minister for Medical Research) (10:40): In accordance with the Charter of Human Rights and Responsibilities Act 2006 I table a statement of compatibility in relation to the Education and Training Reform Amendment (Early Childhood Employment Powers) Bill 2024:

In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this Statement of Compatibility with respect to the Education and Training Reform Amendment (Early Childhood Employment Powers) Bill 2024 (the Bill).

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

Overview of the Bill

The Bill amends the Education and Training Reform Act 2006 (ETRA) to, among other things, enable the Secretary to the Department of Education to employ staff at, or for the purposes of operating, government early learning centres (ELCs) (the government ELC workforce). The Bill also enables the Minister to, by Ministerial Order, declare the employment arrangements for the government ELC workforce and to fix fees to be charged for the provision of early childhood education and care at government ELCs.

The Bill supports the implementation of the Victorian Government’s commitment to establish 50 new government-owned and operated ELCS as part of the ‘Best Start, Best Life’ program.

Human rights issues

The human rights protected by the Charter that are engaged by the Bill are:

• Protection of children (section 17(2));

• The right to privacy (section 13);

• The right to participate in public life (section 18);

• The right not to be punished more than once for the same offence (section 26);

• The right to a fair hearing (section 24(1)); and

• The right to freedom from forced medical treatment (section 10(c)).

I will discuss these human rights in turn.

Protection of children (s 17(2))

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

I consider that the amendments to the ETRA promote the right in section 17(2) by improving access to early childhood education and care for children by supporting the creation, and regulating the operation, of 50 new government-owned and operated ELCs. The Bill further promotes the right in section 17(2) by enabling the Minister to set eligibility and suitability criteria as well as qualification and experience requirements for employment in the government ELC workforce so as to ensure that prospective ELC employees are suitable persons to employ in the delivery of early childhood education services.

I therefore consider that the Bill promotes the protection of children under section 17(2) of the Charter.

Right to privacy (s 13)

Section 13(a) of the Charter provides that a person has the right not to have their privacy unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed, and will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of being disproportionate to the legitimate aim sought. The right to privacy is broad in scope and encompasses rights to physical and psychological integrity, individual identity, and the right to establish and develop meaningful social relations.

Clause 11 of the Bill inserts new Chapter 2A into the ETRA which, among other things, deals with the eligibility and suitability criteria for employment in the government ELC workforce. The eligibility and suitability criteria require applicants to disclose to the Secretary personal information which will allow the Secretary to assess a range of factors necessary to make an informed decision about an applicant’s suitability to perform their duties in a government ELC, including:

• Eligibility criteria declared in a Ministerial Order: new section 2A.1.5 deals with employment arrangements and gives (by new section 2A.1.5(d)) the Minister the power to, by Ministerial Order, declare the eligibility and suitability criteria for employment in the government ELC workforce. New section 2A.1.6(1) provides that a person is not eligible for employment in any position of the government ELC workforce unless the person satisfies the eligibility criteria set out in a Ministerial Order.

• Criminal record information and working with children (WWC) clearance: new section 2A.1.6(2) provides that a person is not eligible for employment in any position in the government ELC workforce if the person has at any time been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction, or been given a WWC exclusion. Also, new section 2A.1.6(3) provides that a person must be registered under Part 2.6 of the ETRA in order to be eligible for employment as an early childhood teacher in the government ELC workforce. Registration under part 2.6 of the ETRA requires the person to, among other things, provide to the Victorian Institute of Teaching a national criminal history check, criminal record check and WWC clearance.

• In addition, clause 13 of the Bill amends section 5.3.4(1) of the ETRA to provide that the Secretary may, at any time, request the Chief Commissioner of Police to provide the Secretary information concerning the criminal record, if any, of a person employed by the Secretary in the government ELC workforce.

By requiring persons that are seeking employment in the government ELC workforce to disclose to the Secretary personal information – including sensitive information such as their criminal record and any WWC exclusions – new section 2A.1.6 engages the person’s right to privacy. The power bestowed on the Secretary to, at any time, seek to obtain from the Chief Commissioner of Police, the criminal record of a person employed in the government ELC workforce, may also engage a person’s right to privacy where such information is requested and obtained.

However, any impacts on the right to privacy are not unlawful or arbitrary. The interference with privacy is authorised under the legislation and is for the purpose of enabling the Secretary to make informed decisions about the appropriateness of a person to work, or continue to work, with young children, and ensuring the safety of young children in the care of government ELCs. Accessing all relevant information about a person seeking employment in the government ELC workforce is a fundamental aspect of the integrity of the ELC roll-out as part of the ‘Best Start, Best Life’ program and provides a protective mechanism for identifying persons whose history indicates that they pose a risk of causing harm to children if allowed to work in ELCs. The eligibility criteria for employment at a government ELC is tied to the severity of the risk associated with the particular aspect of a person’s history, with only very serious matters giving rise to ineligibility.

In addition, as public authorities for the purposes of the Charter, the Minister and the Secretary are subject to the requirement in section 38 of the Charter to give proper consideration to, and to act compatibly with, human rights when exercising their respective powers to declare the eligibility and suitability criteria for employment in the government ELC workforce and to request and make decisions in relation to criminal record information. This obligation under section 38(1) operates as a further constraint upon any interference with privacy.

In my view, any impacts on the right to privacy are appropriate and proportionate to the legitimate aim of protecting children attending government ELCs from harm.

I therefore consider that the Bill is compatible with the right to privacy in section 13 of the Charter.

Right to participate in public life (s 18)

Section 18(1) of the Charter provides that every person in Victoria has the right, and is to have the opportunity, without discrimination, to participate in the conduct of public affairs, directly or through freely chosen representatives. Section 18(2)(b) further provides that every eligible person has the right, and is to have the opportunity, without discrimination, to have access, on general terms of equality, to the Victorian public service and public office.

It is not clear whether section 18(2)(b) will be engaged by new section 2A.1.6 of the ETRA. In order for section 18(2)(b) to apply, a person must be an ‘eligible person’. The term ‘eligible person’ is not defined in the Charter. The commentary suggests two possible interpretations: either that persons are ‘eligible’ under section 18(2)(b) if they are eligible under the current law of Victoria, or alternatively that ‘eligibility’ takes on an independent meaning in the context of the Charter that is not confined to the conditions of eligibility under existing law. Under the former construction, section 18(2)(b) would not be engaged where a person does not meet the eligibility criteria for employment in the government ELC workforce under new section 2A.1.6 of the ETRA.

If ‘eligible person’ were to take on an independent meaning in the context of section 18(2) of the Charter, the commentary suggests that it would mean an adult person with the relevant connection to Victoria, such as residency. If this interpretation is adopted, the right to have access to the Victorian public service without discrimination would apply to a person irrespective of whether that person meets the eligibility criteria for employment in new section 2A.1.6 of the ETRA and section 18(2)(b) may be engaged.

If section 18(2)(b) is engaged by new section 2A.1.6, that right will only be limited where the eligibility criteria gives rise to ‘discrimination’, meaning discrimination on the basis of an attribute within the meaning of the Equal Opportunity Act 2010 (which includes a spent conviction).

• In formulating a Ministerial Order establishing eligibility criteria under the new section 2A.1.5(d), the Minister will be required to consider relevant rights, including this right.

• In so far as new section 2A.1.6(2) provides that a person is not eligible on the basis of being convicted or found guilty of a Category A offence and, in very limited circumstances, a Category A offence may become a spent conviction, as a spent conviction is not required to be disclosed, then the right will not be limited.

In these circumstances, in my view, either the right will not be limited or any limits on a person’s right to have access to the Victorian public service are reasonably justified by the important objective of the new provisions ‍– imposing eligibility criteria on persons seeking employment in ELCs – to ensure a protective mechanism for identifying persons whose history indicates that they pose a risk of harm to children and are not safe to work in ELCs.

I therefore consider that the Bill is compatible with the right to participate in public life in section 18 of the Charter.

Right not to be punished more than once for the same offence (s 26)

Section 26 of the Charter provides that a person must not be tried or punished more than once for an offence in respect of which they have already been finally convicted or acquitted in accordance with law. This right is engaged by new section 2A.1.6(2)(a) which provides that a person who at any time has been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction is ineligible for employment in any position in the government ELC workforce. This right is also engaged by new section 2A.1.15 which provides that the Secretary must dismiss an employee from the government ELC workforce if the employee has at any time been convicted or found guilty of a category A offence in Victoria or an equivalent offence in another jurisdiction.

However, in my view, the right against double punishment is not limited by the Bill because where eligibility is refused or removed on the basis of a person’s criminal history, that refusal or removal will have a protective purpose, rather than a punitive one. That is, the aim of the provisions is clearly to protect children from harm, rather than to impose a punishment for an offence. As the refusal to grant, or the act of removing, eligibility for employment in the government ELC workforce is not a punishment, it does not amount to double punishment for the purpose of section 26, and the right is therefore not limited.

Right to a fair hearing (s 24(1))

Section 24(1) of the Charter provides that a person charged with a criminal offence or a party to a civil proceeding has the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing. The concept of a ‘civil proceeding’ in section 24 is not limited to judicial decision makers, but possibly encompasses the decision-making procedures of many types of tribunals, boards and other administrative decision-makers. The right to a fair hearing is concerned with the procedural fairness of a decision and the right may be limited if a person faces a procedural barrier to bringing their case before a court, or where procedural fairness is not provided.

Termination of employment

The new Division 4 of Chapter 2A of the ETRA deals with termination and suspension of employment in the government ELC workforce. New section 2A.1.13 empowers the Secretary to terminate the employment of a non-executive employee on the grounds specified in the provision, and an executive employee for any reason consistent with their employment terms and conditions.

If a broad reading of section 24(1) was adopted and it was understood that the fair hearing right was engaged by new Division 4 of Chapter 2A of the ETRA, this right would, in my view, nevertheless not be limited because, where the Secretary exercises her power to terminate the employment of an ELC workforce employee, the Secretary is by new section 2A.1.13(4) required to exercise her termination power in accordance with the matters specified in section 20(3) of the Public Administration Act 2004. Section 20(3) requires the Secretary, in her capacity as the employer of the government ELC workforce, to exercise her powers in respect of ELC employees in conformity with the public sector values, any binding code of conduct, the public sector employment principles, and the standards issued by the Victorian Public Sector Commission. The public sector employment principles are set out in section 8 of the Public Administration Act 2004 and require, among other things, that employment processes are established that ensure that employees are treated fairly and reasonably, human rights are upheld, and that employees have a reasonable avenue of redress against unfair or unreasonable treatment. The employment processes established by the Secretary, and applicable to the government ELC workforce, include termination processes applicable to the Secretary’s termination powers under new section 2A.1.13.

Further, where a non-executive government ELC employee’s employment is terminated, the employee will have access to the unfair dismissal process under the Fair Work Act 2009, should they choose to access it. A dismissal may be found to be unfair where the employer – in this case, the Secretary – has not afforded the employee procedural fairness. This gives a remedy where a termination process lacks procedural fairness.

Mandatory dismissal and cessation of employment

New section 2A.1.14 provides that if an on-going employee is absent from work for a period of 3 months, and that absence is not authorised, the employment will cease at the end of that 3 month period. If an employee’s employment ceases in accordance with this section, the employee may apply in writing to the Secretary to be reinstated. If the Secretary directs in writing that the employee be reinstated, the person’s employment is taken not to have ceased.

New section 2A.1.15 requires the Secretary to dismiss an employee from the government ELC workforce if the employee is at any time convicted or found guilty of a category A offence in Victoria (or equivalent offence in another jurisdiction), or if the employee has been given WWC exclusion.

Cessation of employment and dismissal from employment in these circumstances do not, in my view, engage the fair hearing right in section 24(1) of the Charter. Where a legislative provision mandates that a decision-maker must dismiss an employee from the workforce where certain events have occurred, the decision-maker does not engage in a decision-making exercise when doing so and the fair hearing right is therefore not ordinarily engaged. Further, cessation pursuant to new section 2A.1.14 is reviewable by the Secretary. Specifically, the terms of new section 2A.1.4 expressly contemplate that an employee captured by this provision may apply in writing to the Secretary to be reinstated and that the Secretary may direct that they be reinstated.

I therefore consider that the Bill is compatible with the right to a fair hearing in s 24(1) of the Charter.

The right to freedom from forced medical treatment (s 10(c))

Section 10(c) of the Charter provides, relevantly, that a person has the right not to be subjected to medical experimentation or treatment without their full, free and informed consent. In addition, as mentioned, section 13(a) of the Charter protects a person’s right not to have their privacy unlawfully or arbitrarily interfered with. This right extends to privacy in the sense of bodily integrity, which involves the right of a person not to have their body interfered with by others without their consent.

The purpose of these rights is to protect the individual’s personal autonomy and integrity. They recognise the freedom of individuals to choose whether or not they receive medical treatment or participate in medical experiments.

The Bill inserts new section 2A.1.8 in the ETRA which provides that for the purpose of ascertaining the fitness of an employee to perform their duties or to participate in procedures under the ETRA relating to the employee, the Secretary may direct the employee to submit to a medical examination by a qualified medical practitioner nominated by the Secretary. While employees must comply with a direction made by the Secretary to submit to a medical examination or risk their eligibility to remain on the government ELC workforce, the requirement in section 2A.1.8 to undergo a medical examination does not obviate a person’s right not to be subjected to medical treatment without their full, free and informed consent.

I therefore consider that the Bill is compatible with the right to freedom from forced medical treatment in section 10(c) of the Charter.

Conclusion

For the reasons set out above, I consider that to the extent the Bill engages human rights, the Bill does not limit those rights and is thereby compatible with the Charter.

The Hon. Ben Carroll MP

Minister for Education