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.
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.
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:
The Information Sharing Act:
Restrictions do exist on the sharing of information including if the collection, use or disclosure of that information could reasonably be expected to:
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:
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.
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 InnovationAus.com article, Denham Sadler summarised the following objections to the legislation:
Overall, the need to ensure data protection and security is paramount.
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.