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Health and Child Wellbeing Legislation
Amendment Bill 2017
Introduction Print
EXPLANATORY MEMORANDUM
Clause Notes
Part 1--Preliminary
Clause 1 sets out the main purposes of the Bill, which are--
• to make technical amendments to the Child Wellbeing
and Safety Act 2005 in relation to the reportable
conduct scheme and the operation of the child safe
standards; and
• to amend the Public Health and Wellbeing
Act 2008--
• to amend the immunisation requirements for the
purposes of the Act so that these are more
closely aligned to the Commonwealth
immunisation requirements; and
• to clarify what constitutes an immunisation status
certificate; and
• to require up to date immunisation status
certificates to be provided to early childhood
services; and
• to require certain bodies to notify the Secretary
about persons presenting with anaphylaxis; and
• to amend the Health Complaints Act 2016 to provide
an express power to bring proceedings for offences
under that Act; and
581465 1 BILL LA INTRODUCTION 14/11/2017
• to repeal sections 95 and 96 of the Health Legislation
Amendment (Quality and Safety) Act 2017.
Clause 2 is the commencement provision.
The amendments to the Child Wellbeing and Safety Act 2005
relating to the reportable conduct scheme and to the operation of
the child safe standards to capture applicable entities engaging
children to assist the entities to produce or provide goods
commence on the day after Royal Assent. The remaining
amendments relating to the operation of the child safe standards
commence on 1 November 2018 unless proclaimed earlier.
The amendments to the Public Health and Wellbeing
Act 2008 relating to immunisation requirements and associated
amendments will commence the day after Royal Assent.
The amendments relating to the provision of up to date
immunisation status certificates will commence on 1 November
2018 unless proclaimed earlier. The amendments relating to
the notification of anaphylaxis presentation will also commence
on 1 November 2018 unless proclaimed earlier.
The amendments to the Health Complaints Act 2016 relating
to immunisation requirements will commence the day after
Royal Assent.
Part 2--Amendment of the Child Wellbeing and Safety Act 2005
Clause 3 Subclause (1) amends several definitions in the Child Wellbeing
and Safety Act 2005 that relate to the reportable conduct scheme
and compliance with the child safe standards by child employers.
The definition of applicable entity is being amended so that an
applicable entity is also an individual that is carrying on a
business and engages children as a contractor, employee or
volunteer to assist the individual to produce or provide goods.
Previously, only individuals engaging children to assist in
providing services or facilities was captured. The amendment is
required to reflect that some employers who are required to hold
a permit to employ children under the Child Employment
Act 2003 to assist the employer to provide or produce goods are
intended to comply with the child safe standards as a category 2
entity (item 20 of Schedule 2 to the Child Wellbeing and Safety
Act 2005).
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Paragraph (d) of the definition of employee is being substituted.
The effect of new paragraph (d) is that specified foster carers and
kinship carers are employees for the purposes of the reportable
conduct scheme. These amendments do not create an
employment relationship between kinship carers, foster carers or
any entity. This is consistent with paragraphs (a), (b) and (c) of
the definition of employee which also do not create an
employment relationship, or alter any existing employment
relationships, between the specified person and relevant entity.
The definition of employee is for the purposes of the reportable
conduct scheme only.
The types of foster carers and kinship carers captured are those
caring for children placed with them under the Children Youth
and Families Act 2005 or pursuant to an order made under that
Act. For example, an approved foster carer with whom a child is
placed, and a kinship carer with whom a child is placed by the
Children's Court, an entity or the head of an entity. This includes
children placed with carers pursuant to a child care agreement
made under Part 3.5 of the Children Youth and Families
Act 2005 or a case plan for respite made under the Children
Youth and Families Act 2005.
For the purposes of the reportable conduct scheme, foster carers
will be deemed to be the employee of the entity that approved the
foster carer under section 75 of the Children Youth and
Families Act 2005. Kinship carers will be deemed to be the
employee of the entity that placed the child with the carer, or the
entity that is supervising the child with the carer, under the
Children Youth and Families Act 2005. Where the head of an
entity placed the child, or is supervising the child, under the
Children Youth and Families Act 2005, the kinship carer will
be deemed to be the employee of the entity of which the person is
head. For the purposes of the scheme, "supervising" captures the
Secretary to the Department of Health and Human Services' child
protection role under the Children Youth and Families
Act 2005. For example, the Secretary's standing to breach an
interim accommodation order made by the Children's Court
placing a child with a kinship carer will mean that for the
purposes of the scheme, that kinship carer is deemed to be an
employee of the Department of Health and Human Services.
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Once a placement, order or supervision (as relevant) under the
Children Youth and Families Act 2005 with the particular carer
ends, or when a permanent care order is made, the foster or
kinship carer is no longer deemed an "employee" for the purposes
of the scheme. A placement or supervision may end for
numerous reasons, for example, an order under the Children
Youth and Families Act 2005 ceases (irrespective of the child
remaining with the carer), the foster or kinship carer ceases
caring for the child, the child is adopted, or the child marries or
turns 18.
The definition of head, in relation to an entity to which the
reportable conduct scheme applies, is being substituted to make it
clear who the head of an entity is. The previous definition did
not provide a hierarchy to determine who the head of an entity
was in circumstances where more than one person meets the
definition, and did not take into account that entities may not
have a person with the title of "Chief Executive Officer" or
"principal officer", although may have someone performing an
equivalent role. Further, the previous definition did not allow
for an entity to nominate, for approval of the Commission for
Children and Young People, the head of the entity. This new
ability will provide flexibility for entities to determine, subject
to the Commission's approval, the appropriately senior person
located in Victoria who can perform the responsibilities and
functions of the head of an entity under the scheme where there
is no person otherwise meeting the definition of head.
Subclause (2) amends several definitions in section 3(1) of
Child Wellbeing and Safety Act 2005 that relate to the
operation of the child safe standards.
The definitions of category 1 entity and category 2 entity are
amended so that a category 1 entity or category 2 entity is an
entity listed in Schedule 1 or 2 respectively to the Child
Wellbeing and Safety Act 2005. Previously, a category 1 entity
or category 2 entity was an applicable entity listed in Schedule 1
or 2 respectively. The amendment is required as not all entities
are applicable entities. For example, a Department within the
meaning of the Public Administration Act 2004 (item 25 of
Schedule 1 to the Child Wellbeing and Safety Act 2005) is not
an applicable entity.
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The definition of relevant entity is amended so that relevant
entity will mean all those individuals and entities (rather than
applicable entities) required to comply with the child safe
standards under sections 19, 20, 21 or 23. The amendment is
necessary as not all category 1 entities and category 2 entities
that are required to comply with the child safe standards are
applicable entities.
Subclause (3) substitutes a new section 3(2). New section 3(2)
clarifies that references in the Act to the provision of a service or
facility or the production or provision of goods by an individual
who carries on a business that is a category 1 entity, category 2
entity or an applicable entity is a reference to the business
providing the service, facility or goods, or producing the goods.
Previously, section 3(2) did not capture the provision or
production of goods. The amendment is required to reflect that
some employers who are required to hold a permit to employ
children under the Child Employment Act 2003 to assist the
employer to provide or produce goods are intended to comply
with the child safe standards as a category 2 entity (item 20 of
Schedule 2 to the Child Wellbeing and Safety Act 2005).
Clause 4 amends section 16J of the Child Wellbeing and Safety Act 2005
so that the regulations may prescribe a part of an entity, or a part
of a class of entities, as exempt from the reportable conduct
scheme. Section 16J currently only allows whole entities or
classes of entities to be prescribed. The amendment is required
to ensure the scheme can respond flexibly to the range of entities
to which the reportable conduct scheme currently applies.
For example, regulations may be made to exempt those parts of
an entity that operate outside of Victoria, or those employees
within an entity that do not work with children. Once exempt,
the entity and head of the entity will not be required to comply
with the scheme for the employees working in the exempt part(s)
of the entity.
Clause 5 amends sections 16N(3)(b) and (c) of the Child Wellbeing and
Safety Act 2005 so that after the conclusion of a reportable
conduct investigation, the head of an entity must give the
Commission details of any disciplinary or other action the entity
proposes to take, or the reasons why the entity does not propose
to take action. Previously, the head was required to provide
details regarding actions the head of the entity intended to take or
not take. The amendment is necessary to ensure consistency with
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section 16M(b)(ii) which requires the head of the entity to notify
the Commission for Children and Young People of the actions
the entity proposes to take and reflects that an entity, rather than
the head of the entity, takes disciplinary or other action against its
employees.
Clause 6 amends section 16ZC(2) of the Child Wellbeing and Safety
Act 2005 so that regulations may be made to prescribe an
interstate, territory or Commonwealth body or person as a
person to whom the Commission for Children and Young
People, the head of an entity and a regulator may disclose
specified information in prescribed matters or classes of matters.
The disclosure must relate to the body or person's statutory
functions. Previously, the provision did not expressly refer to
such persons or authorities. It is necessary to do so to ensure
information may be shared as appropriate.
Clause 7 inserts a new section 16ZJA of the Child Wellbeing and Safety
Act 2005 to enable a Secretary to a Department to delegate the
Secretary's powers, functions or duties as the head of an entity
under the reportable conduct scheme to one or more employees
in the Secretary's Department. Previously no express delegation
power was available under the Child Wellbeing and Safety
Act 2005 which is problematic for those Secretaries who do not
have power in other Acts enabling them to delegate their powers,
functions or duties as the head of an entity.
Heads of entities may otherwise continue to make arrangements
for the head's powers, functions and duties under the reportable
conduct scheme to be fulfilled, for example, by arranging for
another appropriate person to perform a particular duty.
Where that occurs, the entity head will retain responsibility
under the scheme for performance of the function, duty or power.
Clause 8 amends section 17(1) of the Child Wellbeing and Safety
Act 2005 so that the Minister may make child safe standards
with respect to the operations of relevant entities. Previously,
standards could be made with respect to applicable entities.
This amendment is consequential: it is required as not all
category 1 and category 2 entities are applicable entities.
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Clause 9 amends section 19(3) of the Child Wellbeing and Safety
Act 2005 so that regulations may be made to prescribe a
category 1 entity or category 2 entity (other than an individual),
or classes of category 1 or category 2 entities, as exempt from the
child safe standards. Previously, applicable entities (other than
individuals) or classes of applicable entities could be exempt.
This amendment is consequential: it is required as not all
category 1 and category 2 entities are applicable entities.
Clause 10 amends section 20 of the Child Wellbeing and Safety Act 2005
so that a prescribed category 1 entity, category 2 entity or
applicable entity (other than an individual) must comply with
the child safe standards on and after the prescribed date.
Previously, regulations could prescribe applicable entities.
This amendment is consequential: it is required as not all
category 1 and category 2 entities are applicable entities.
Clause 11 amends section 21 of the Child Wellbeing and Safety Act 2005
so that a category 1 entity, category 2 entity or applicable entity
that belongs to a prescribed class must comply with the child safe
standards from the prescribed date. Previously regulations could
be made with respect to applicable entities. This amendment is
consequential: it is required as not all category 1 and category 2
entities are applicable entities.
Clause 12 subclause (1) amends section 22 of the Child Wellbeing
and Safety Act 2005 so that a category 1 entity, category 2
entity or applicable entity is exempt from the requirement to
comply with the child safe standards in the specified
circumstances. Previously only applicable entities were
exempt. This amendment is consequential: it is required as not
all category 1 and category 2 entities are applicable entities.
Subclause (2) amends section 22(c) of the Child Wellbeing
and Safety Act 2005 so that category 1 entities, category 2
entities and applicable entities which do not engage a child as a
contractor, employee or volunteer to assist in providing services,
facilities or goods, or assist in the production of goods, do not
have to comply with the child safe standards. Previously,
section 22(c) did not refer to the provision or production of
goods. The effect was that an applicable entity that employs a
child to assist it in providing goods or producing goods, and is
required to hold a permit to employ the child for that purpose
under the Child Employment Act 2003, was exempt from the
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requirement to comply with child safe standards. All applicable
entities that employ a child and that are required to hold a permit
under the Child Employment Act 2003 are intended to comply
with the child safe standards under section 19 and item 20 of
Schedule 2.
Clause 13 amends section 23 of the Child Wellbeing and Safety Act 2005
so that an individual who is not a category 1 entity, category 2
entity or applicable entity and who carries on certain businesses
belonging to a prescribed class must comply with the child
safe standards from the prescribed date. Previously, only
individuals who are not applicable entities could be prescribed.
This amendment is consequential: it is required as not all
category 1 and category 2 entities are applicable entities.
Clause 14 amends item 6 in Schedule 1 to the Child Wellbeing and Safety
Act 2005 so that a licensee of a children's service within the
meaning of the Children's Services Act 1996 is required to
comply with the child safe standards. Previously, item 6 did
not refer to licensees. The amendment reflects the legal
arrangements for children's services under the Children's
Services Act 1996.
Item 16 in Schedule 1 is also amended so that only an applicable
entity that is a disability service provider within the meaning of
the Disability Act 2006 is required to comply with the child safe
standards. Disability service providers are category 1 entities.
The amendment is consequential to removing the requirement for
a category 1 entity to be an applicable entity. It is intended that
only those disability service providers that are applicable entities
are captured.
Clause 15 amends item 2 in Schedule 2 to the Child Wellbeing and Safety
Act 2005 so that only an applicable entity that is a charity is
required to comply with the child safe standards. Charities are
category 2 entities. The amendment is consequential to removing
the requirement for a category 2 entity to be an applicable entity.
It is intended that only those charities that are applicable entities
are captured.
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Part 3--Amendment of the Public Health and Wellbeing Act 2008
Clause 16 substitutes a new definition of age appropriately immunised
into section 3 of the Public Health and Wellbeing Act 2008.
The new definition provides that a child is age appropriately
immunised when the child meets the Commonwealth
immunisation requirements or when the child meets the
immunisation requirements declared by the Secretary under the
new section 3A.
Clause 17 inserts a new section 3A into the Public Health and Wellbeing
Act 2008 which provides that the Secretary may declare
immunisation requirements by notice published in the
Government Gazette for the purposes of the new definition of
age appropriately immunised. This section will allow the
Secretary to set out different immunisation requirements for
Victorian children when Commonwealth and Victorian policies
on this issue differs.
Clause 18 inserts a new Division 3A into Part 8 of the Public Health and
Wellbeing Act 2008 relating to notification of anaphylaxis
presentations.
New section 130A defines an anaphylaxis reporting body for the
purposes of Division 3A. New section 130A also defines who is
a person in charge of an anaphylaxis reporting body for the
purposes of new section 130B(3).
New section 130B(1) and (2) imposes an obligation on an
anaphylaxis reporting body to notify the Secretary if a registered
medical practitioner working at the body has a reasonable belief
that a person presenting for treatment at that body has
anaphylaxis. The timeframe and details to be included in the
notification will be set out in regulations.
New section 130B(3) imposes an obligation on the person in
charge of an anaphylaxis reporting body to ensure that the
anaphylaxis reporting body has processes in place to ensure
that the body complies with its notification obligation.
New section 130C provides that the Secretary may provide
information received about anaphylaxis presentations under this
Division to prescribed bodies, if the Secretary considers that it is
in the public interest to provide that information.
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Clause 19 amends section 143A of the Public Health and Wellbeing
Act 2008 to refer to new section 143E and to state that this new
section applies in relation to children who are attending early
childhood services.
Clause 20 substitutes a new section 143B into the Public Health and
Wellbeing Act 2008. The new section has the same effect as
the former section. The amended section does not include
section 143B(1)(b) (as in force before the substitution) which
provides that a child meets the immunisation requirements if the
child has a relevant medical contraindication. However, the
same requirement concerning medical contraindication is
included in the immunisation requirements set out in section 6
of the A New Tax System (Family Assistance) Act 1999 of
the Commonwealth, which is now incorporated in the new
definition of age appropriately immunised in section 3 of the
Public Health and Wellbeing Act 2008.
Clause 21 inserts a new section 143E into the Public Health and
Wellbeing Act 2008 requiring a parent to provide an up to date
immunisation status certificate showing that a child attending
an early childhood service is age appropriately immunised.
The regulations may specify the relevant date for the provision
of the up to date immunisation status certificates by reference to
when a child attains a particular age or by reference to prescribed
intervals. New section 143E(2) includes a corresponding
obligation on the person in charge of the early childhood service
to take reasonable steps to ensure that parents provide the
relevant certificates. New subsection 143E(3) clarifies that the
obligation to obtain updated immunisation status certificates does
not apply to children to whom section 143C(1) applies if the
16 week period referred to in section 143C(2) has not expired.
However, the person in charge of an early childhood service must
continue to comply with section 143C(2) in the 16 week period.
Clause 22 substitutes sections 147 and 148 of the Public Health and
Wellbeing Act 2008. Sections 147 and 148 included a number
of options for the document or documents that would be accepted
as an immunisation status certificate, meaning that early
childhood services and primary schools had to evaluate a number
of different documents for the purposes of sections 143B, 145
and 146 of the Public Health and Wellbeing Act 2008.
The new substituted section 147 reduces the number of options
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for documents that may constitute an immunisation status
certificate. New section 147 provides that an immunisation
status certificate is an immunisation history statement from the
Commonwealth Australian Immunisation Register or a document
or combination of documents declared by the Secretary to be an
immunisation status certificate pursuant to the new section 148.
The new section 148 provides that the Secretary may declare
a class of document or a combination of documents to be an
immunisation status certificate for the purposes of the new
section 147(b). The declaration is to be published in the
Government Gazette.
Clause 23 amends section 238 of the Public Health and Wellbeing
Act 2008 to include additional regulation making powers in
relation to the purposes of prescribing the notification of
anaphylaxis to the Secretary, and for the persons or classes of
person to whom the Secretary may provide information about
anaphylaxis received pursuant to the new Division 3A of Part 8.
Part 4--Amendment of the Health Complaints Act 2016
Clause 24 amends section 120 of the Health Complaints Act 2016, which
is the delegation section. The effect of the amendment is that the
new power to bring proceedings for an offence against that Act
cannot be delegated by the Health Complaints Commissioner.
Clause 25 amends section 122 of the Health Complaints Act 2016,
which provides for protection from personal liability for the
Commissioner and Assistant Commissioners for anything done
or omitted to be done in good faith in the exercise of power or the
performance of a function under that Act. The effect of the
amendment is to clarify that the protection applies to an acting
Commissioner as well. This amendment does not affect the
operation of section 41AA of the Interpretation of Legislation
Act 1984, which provides (in paragraph (f)(ii)) that while a
person is acting in an office, that Act and any other Act applies
as if the person were the holder of the office.
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Clause 26 inserts new section 156A into the Health Complaints
Act 2016. New section 156A states that the Health Complaints
Commissioner, a person appointed to act as Commissioner and
a police officer may bring proceedings for an offence against the
Act or regulations. This express power to prosecute is inserted
into the Act for clarity
Part 5--Consequential amendment and repeal of amending Act
Clause 27 revokes sections 95 and 96 of the Health Legislation
Amendment (Quality and Safety) Act 2017. These sections
(which were to amend sections 147 and 148 of the Public Health
and Wellbeing Act 2008) are not yet proclaimed and are no
longer required by virtue of clause 22 of this Bill.
Clause 28 provides for the automatic repeal of this amending Act on
1 November 2019. The repeal of this Act does not affect
the continuing operation of the amendments made by this
Act (see section 15(1) of the Interpretation of Legislation
Act 1984).
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