New VIC Child Information Sharing Laws Passed - Do they really protect children?

19 April 2018

The Victorian Parliament's recent passing of the Children Legislation Amendment (Information Sharing) Act 2018 (Information Sharing Act), which primarily amends the Child Wellbeing and Safety Act 2005 (Vic) has prompted divisive reactions. While the Information Sharing Act purports to ''promote the wellbeing and safety of children'' through the establishment of an information sharing scheme amongst specified entities, there are concerns that the effect of the legislation will actually be negative on children, not positive. The new legislation establishes a framework for professionals across a range of organisations, including teachers, to share information about children in order to promote their safety. While the Act is yet to formally commence, questions have been raised regarding the protection of children's rights.

Complex balancing act

In our three part series Information Sharing and Schools published last year, School Governance discussed the complex matters to be considered by schools when sharing information amongst members of the school community and externally. There are clear tensions between maintaining the privacy of personal information, and upholding a duty of care. Schools and other organisations are hence risk-averse when it comes to information sharing; often they will be reticent to, for example, display the details of an anaphylactic student in the canteen, without parental consent, for fear of causing an invasion of privacy.  Information sharing may also be subject to restrictions under confidentiality requirements, privacy or child protection legislation, ethical codes or contract law. However when legislation requires the disclosure, schools are legally obliged to comply - regardless of any concerns they may have.  Part two of the School Governance series discussed the legal framework regarding information sharing legislation around Australia.

That article included a summary of the Victorian regime which now, with the passing of the Information Sharing Act, has been extended.

Why was reform needed?

According to an August 2017 Victorian Department of Health and Human Services (DHHS) consultation paper (Consultation Paper) regarding the proposed scheme, the new laws were necessary because:

  • Victoria’s current legal framework limited the effective sharing of information between organisations that provide services to children and families. Information can be shared relatively easily with Child Protection when there is already a significant concern for a child’s wellbeing, or where there is a significant risk of harm and a child is in need of protection. Information may also be shared without consent if there is already a serious threat to an individual's life, health, safety or welfare and a reasonable belief that disclosing information is necessary to lessen or prevent that threat.
  • However, existing legislation did not appear to effectively enable organisations to share information with other organisations who work with children and young people, to facilitate prevention of harm or early intervention.  According to the DHHS, this had "contributed to an overly risk-averse culture around information sharing in Victoria’s service system, which has had negative consequences for children and families."

Key features of the Information Sharing Act

The Information Sharing Act:

  • establishes an information sharing scheme to share "confidential information" to promote the wellbeing and safety of children (aged under 18).  Confidential information includes health, personal, sensitive information or unique identifiers
  • establishes a register of children born or resident in Victoria to improve child wellbeing and safety outcomes for those children.  This is known as the ''Child Link Register'' and will include a long list of information about a child including: full name, sex, the full names of each person who at any time has or has had parental responsibility for, or day-to-day care of, the child, and details of the child's siblings. It is intended that the Child Link Register help authorities and information sharing entities to form an aggregate picture of risk in relation to a child and their family, and to work together to provide effective and early support for that family
  • amends the Family Violence Protection Act 2008 (Vic), and other Victorian legislation, to provide for improved information sharing services.  In terms of the Family Violence Act, the new information sharing scheme expressly allows confidential information on the Support and Safety Hub to be disclosed without the consent of the affected individual
  • requires the Minister for Families and Children to issue Ministerial guidelines regarding the application of the information sharing scheme, which will be subject to prior public consultation.

Restrictions do exist on the sharing of information including if the collection, use or disclosure of that information could reasonably be expected to:

  • endanger a person's life or result in physical injury; or
  • prejudice the investigation of a breach or possible breach of the law; or
  • be contrary to the public interest.

There are also nine ''Principles'' governing the sharing of information which section 41U explains should be used ''for guidance'' in relation to the collection, use or disclosure of confidential information.  The Principles require information sharing entities to:

  • give precedence to the wellbeing and safety of a child or group of children over the right to privacy
  • only share confidential information to the extent necessary to promote the wellbeing or safety of a child or group of children, consistent with the best interests of that child/children.

Clearly, the first principle is a source of controversy. While section 41ZF states that an information sharing entity may ''refuse to give an individual access to that individual's confidential information under a relevant privacy law if the entity believes on reasonable grounds that giving access to the information would increase a risk to the safety of a child/children'' there is a large amount of discretion involved in this provision and it is unclear, in practice, how it would operate.

Concerns raised

The majority of concerns relate to the issue of ''consent'', which can be express or implied.  Throughout the Information Sharing Act, provisions exist for the use or disclosure of information if the use or disclosure is made with the consent of the affected person or ''if the person is incapable of giving consent...a use or disclosure made with the consent of the person's authorised representative.''  As explained in the Consultation Paper: "Stakeholders have previously expressed the view that because consent for children is complex and must be approached on a case-by-case basis using professional judgment, this issue is more appropriately dealt with in guidelines rather than through the imposition of blanket requirements in legislation. Some stakeholders also advised that asking a child to give permission for the sharing of their information places a significant burden of responsibility on a child for their own safety and wellbeing."

In an article, Denham Sadler summarised the following objections to the legislation:

  • Victorian civil and digital rights groups raised a number of concerns with the new information sharing regime, specifically around the broad scope of information that can be shared, the lack of consent required and the vulnerability of the Child Link network.
  • The requirement that the information must be shared for the purpose of “promoting well-being” is too broad and “essentially useless”... creating the risk that “unnecessary or prejudicial information will be stored and accessed by other services" (Liberty Victoria president Jessie Taylor).
  • “We also need to ensure that if we are keeping a register of children, it is maintained in a responsible way, because government does not always get it right, and releasing very sensitive information about children, putting their reputations at risk and in some instances putting their lives at risk, would be very much an unintended consequence of this legislation" (Nationals MP Emma Kealy).

Overall, the need to ensure data protection and security is paramount.

Situation in other states

Information sharing legislation in Australia focussing on child protection is not new as summarised in Part two of the School Governance series.  The Royal Commission into Institutional Responses to Child Sexual Abuse discussed the current legislative regimes around Australia in Volume 8 of its Final Report and also, the need for reform. The Royal Commission endorses a harmonised, national information sharing scheme and also notes that while individual state and territory initiatives are "a positive development, and reflect the importance of information sharing in keeping children safe in a variety of contexts..there is the potential for further complicating the legislative and administrative arrangements that govern information sharing. In addition to other limitations noted earlier, these jurisdiction-based initiatives do not, in the main, facilitate inter-jurisdictional information exchange."

In the absence of a national scheme, states like Victoria will continue to legislate independently and often, in addition to existing forms of information sharing schemes. Consistency in this area may not only facilitate information sharing between entities but also, protect children.

Xenia Hammon

Xenia joined CompliSpace in 2014 having previously worked as a lawyer in Melbourne for six years. Xenia was a lawyer at a leading Australian law firm in their corporate team before taking up the role of in-house Legal Advisor at an ASX listed company. Xenia has experience in Australian and international law on various areas of commercial practice. She is currently completing a Graduate Diploma of Applied Corporate Governance at the Governance Institute of Australia.