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Children and Health Legislation Amendment
(Statement of Recognition, Aboriginal Self-
determination and Other Matters) Act 2023
No. of 2023
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 4
Part 2--Amendment of the Children, Youth and Families Act 2005 5
3 Definitions 5
4 New Parts 1.1A and 1.1B inserted 5
4A Aboriginal Child Placement Principle 11
5 Further principles for placement of Aboriginal child 12
6 Delegation 13
7 Section 18 substituted and new sections 18AAA and 18AAB
inserted 13
8 Use of information disclosed to Aboriginal agency and principal
officer 17
9 New section 19A inserted 17
10 Who is a protective intervener? 18
11 Disclosure and use of information under this Act 18
12 Management of child protection proceedings 19
13 Amendment of Schedule 1 19
14 New sections 633 and 634 inserted 19
Part 3--Amendment of the Social Services Regulation Act 2021 22
15 Heading to Subdivision 1 of Division 3 of Part 11 inserted 22
16 Investigation of conduct engaged in before the commencement
of Part 5 22
17 Continuation of secure welfare services 22
18 New Subdivision 2 of Division 3 of Part 11 inserted 23
Part 4--Amendment of the Child Wellbeing and Safety Act 2005 31
Division 1--Amendments relating to definition of employee 31
19 Definitions 31
20 New section 3A inserted 33
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Clause Page
Division 2--Amendments relating to commencing a proceeding
under Part 5A 34
21 New sections 16ZKA and 16ZKB inserted 34
Division 3--Amendments relating to enforcement and monitoring
of compliance with section 16M 35
22 Definitions 35
23 Definition 35
24 Objectives of Commission under this Part 35
25 Functions of Commission under this Part 36
26 Powers of the Commission 36
27 False or misleading information 36
28 Service of documents 36
29 Annual reports and other reports 36
30 New Part 5B inserted 37
Division 4--Amendments relating to Child Safe Standards 70
31 Power to bring proceedings 70
Division 5--Transitional provisions 71
32 New Division 4 of Part 9 inserted 71
Part 5--Amendments relating to judicial registrars 74
Division 1--Amendment of the Children, Youth and Families Act
2005 74
33 Recall and cancellation of warrants 74
34 Performance of duties by judicial registrar 74
35 Rules 74
Division 2--Amendment of the Magistrates' Court Act 1989 75
36 Performance of duties by judicial registrar 75
37 Recall and cancellation of warrant 75
Part 6--Amendment of the Commission for Children and Young
People Act 2012 76
38 Functions of Commission 76
39 New Part 4A inserted 76
Part 7--Consequential amendments relating to the Social Services
Regulation Act 2021 79
Division 1--Consequential amendment of the Children, Youth and
Families Act 2005 79
40 Definitions 79
41 Aboriginal agency 79
42 Recognition principles 79
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Clause Page
43 Responsibilities of the Secretary 79
44 Secretary may authorise person in charge of community service
to act 80
45 Object of Part 80
46 Divisions 3, 4, 5 and 6 of Part 3.3 repealed 80
47 Division heading amended 80
48 Community services 80
49 Definitions 81
50 Definitions 81
51 Disclosure and use of information under this Act 81
52 Regulations 81
Division 2--Consequential amendment of the Child Wellbeing and
Safety Act 2005 82
53 Definitions 82
54 Disclosure of information about investigations to children,
parents and carers 82
Division 3--Consequential amendment of the Children's Services
Act 1996 82
55 Non-application of this Act 82
Division 4--Consequential amendment of the Commission for
Children and Young People Act 2012 83
56 Definitions 83
57 Vulnerable children and young persons 83
58 Access to information 83
Division 5--Consequential amendment of the Crimes Act 1958 83
59 Care, supervision or authority 83
Part 8--Amendment of the Health Services Act 1988 84
60 New Part 1A inserted 84
Part 9--Amendment of the Public Health and Wellbeing Act 2008 88
61 New Part 1A inserted 88
62 Exemption--early childhood services 91
Part 10--Statute law revision 92
Division 1--Amendment of the Ambulance Services Act 1986 92
63 Statute law revision--Ambulance Services Act 1986 92
Division 2--Amendment of the Children, Youth and Families Act
2005 92
64 Statute law revision--Children, Youth and Families Act 2005 92
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Clause Page
Division 3--Amendment of the Commission for Children and
Young People Act 2012 92
65 Statute law revision--Commission for Children and Young
People Act 2012 92
Division 4--Amendment of the Health Legislation Amendment
(Quality and Safety) Act 2022 93
66 Statute law revision--Health Legislation Amendment (Quality
and Safety) Act 2022 93
Division 5--Amendment of the Health Services Act 1988 93
67 Statute law revision--Health Services Act 1988 93
Division 6--Amendment of the Public Health and Wellbeing
Act 2008 93
68 Statute law revision--Public Health and Wellbeing Act 2008 93
Division 7--Amendment of the Mental Health Act 2014 93
69 Statute law revision--Mental Health Act 2014 93
Division 8--Amendment of the Social Services Regulation
Act 2021 94
70 Statute law revision--Social Services Regulation Act 2021 94
Part 11--Repeal of this Act 95
71 Repeal of this Act 95
═════════════
Endnotes 96
1 General information 96
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Children and Health Legislation
Amendment (Statement of Recognition,
Aboriginal Self-determination and
Other Matters) Act 2023
No. of 2023
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
The main purposes of this Act are--
(a) to amend the Children, Youth and Families
Act 2005--
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Children and Health Legislation Amendment (Statement of Recognition,
Aboriginal Self-determination and Other Matters) Act 2023
No. of 2023
Part 1--Preliminary
(i) to include an Aboriginal Statement of
Recognition and recognition principles
relating to child protection
decision-making for Aboriginal
children; and
(ii) to incorporate further Aboriginal child
placement principles; and
(iii) to make amendments relating to
authorisation of principal officers of an
Aboriginal agency; and
(iv) to provide for use and disclosure of
information to and by principal officers
authorised under section 18 or 19 of
that Act; and
(v) to enable judicial registrars to exercise
powers of magistrates to issue warrants
for the purposes of having a child
placed in emergency care and to enable
judicial registrars to exercise powers of
registrars; and
(b) to amend the Social Services Regulation
Act 2021 to make transitional provision for
Suitability Panels and community services;
and
(c) to amend the Child Wellbeing and Safety
Act 2005 in relation to the reportable
conduct scheme--
(i) to amend the definition of employee;
and
(ii) to enable the Commission for Children
and Young People to commence
proceedings for offences relating to the
reportable conduct scheme; and
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No. of 2023
Part 1--Preliminary
(iii) to provide for the Commission to
monitor and enforce compliance with
requirements under that Act in relation
to notification of reportable conduct by
the head of an entity; and
(iv) to make minor amendments relating to
the commencement of proceedings
under Part 6 of that Act; and
(d) to amend the Magistrates' Court Act 1989
to enable judicial registrars to exercise
powers of registrars; and
(e) to amend the Commission for Children and
Young People Act 2012 to enable the
Commission to assist and support child
protection clients, children and young
persons in out of home care and children and
young persons making the transition to
independent living; and
(f) to make necessary consequential
amendments to the Children, Youth and
Families Act 2005 and other Acts
consequential to the Social Services
Regulation Act 2021; and
(g) to amend the Health Services Act 1988 to
include an Aboriginal Statement of
Recognition and Statement of Recognition
principles; and
(h) to amend the Public Health and Wellbeing
Act 2008 to include an Aboriginal Statement
of Recognition and Statement of Recognition
principles.
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Children and Health Legislation Amendment (Statement of Recognition,
Aboriginal Self-determination and Other Matters) Act 2023
No. of 2023
Part 1--Preliminary
2 Commencement
(1) This Part, Parts 5 and 10 and Division 2 of Part 4
and sections 6, 7, 8, 9, 10, 11 and 14 come into
operation on the day after the day on which this
Act receives the Royal Assent.
(2) Subject to subsection (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in subsection (2) does
not come into operation before 1 July 2024, it
comes into operation on that day.
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Aboriginal Self-determination and Other Matters) Act 2023
No. of 2023
Part 2--Amendment of the Children, Youth and Families Act 2005
Part 2--Amendment of the Children, Youth
and Families Act 2005
3 Definitions
(1) In section 3(1) of the Children, Youth and
Families Act 2005 insert the following
definition--
"recognition principles means the principles set
out in section 7E;".
(2) In section 3(1) of the Children, Youth and
Families Act 2005, in the definition of Aboriginal
person, for paragraphs (a), (b) and (c)
substitute--
"(a) is of Aboriginal or Torres Strait Islander
descent; and
(b) identifies as an Aboriginal or Torres Strait
Islander person; and
(c) is accepted as an Aboriginal or Torres Strait
Islander person by an Aboriginal or Torres
Strait Island community;".
4 New Parts 1.1A and 1.1B inserted
After Part 1.1 of the Children, Youth and
Families Act 2005 insert--
"Part 1.1A--Statement of
Recognition
7AA Statement of acknowledgement
(1) The Parliament acknowledges that removing
an Aboriginal child from the care of a parent
may--
(a) disrupt the child's connection to their
culture; and
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Part 2--Amendment of the Children, Youth and Families Act 2005
(b) cause harm to the child, including
serious harm.
(2) The Parliament does not intend by this
section to affect in any way the interpretation
of this Act or of any other laws in force in
Victoria.
7A Statement of Recognition
(1) The Parliament formally recognises that
Aboriginal people are the First Nations
people of Australia.
(2) The Parliament acknowledges that--
(a) the child protection system played a
key role in the enactment of policies
leading to the dispossession,
colonisation and assimilation of
Aboriginal people; and
(b) the laws, practices and policies of
former child protection systems
resulted in the removal of Aboriginal
children from their families, culture and
Country, by compulsion, in an effort to
assimilate and extinguish their culture
and identity.
(3) The Parliament recognises the systematic
forcible removal of Aboriginal children
through the laws, practices and policies of
the child protection system has substantially
contributed to--
(a) a legacy of disconnection; and
(b) intergenerational trauma; and
(c) entrenched social disadvantage and
dysfunction; and
(d) marginalisation; and
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(e) a distrust of the child protection system.
(4) The Parliament recognises that ongoing
structural inequality and systemic racism
impact Aboriginal people and culture in
relation to--
(a) decision-making in the child protection
system; and
(b) over-representation of Aboriginal
children in the child protection system.
(5) The Parliament further recognises the
survival, resilience and success of Aboriginal
families and communities in the face of the
devastating impacts of these colonisation,
dispossession and assimilation policies.
(6) The Parliament supports rights and initiatives
that--
(a) address the factors that drive the
over-representation of Aboriginal
children in the child protection system;
and
(b) will require Aboriginal children,
families and communities to be treated
fairly and equally.
(7) It is the intention of Parliament that the child
protection system must recognise, respect
and support the distinct cultural rights of
Aboriginal people and their right to
self-determination.
7B Acknowledgement of treaty process
(1) The Parliament acknowledges Victoria's
treaty process and the aspiration of
Aboriginal people to achieve increased
autonomy, Aboriginal decision-making and
control of planning, funding and
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administration of services for Aboriginal
children and families, including through
self-determined Aboriginal representative
bodies established through treaty.
(2) The Parliament does not intend by this
section to affect in any way the interpretation
of this Act or of any other law in force in
Victoria.
7C Effect of this Part
The Parliament does not intend by this Part
to create in any person any legal right or give
rise to any civil cause of action.
7D No effect on entitlement to compensation
or creation of entitlement to compensation
This Part is not intended to alter or affect an
existing entitlement to compensation or
create an entitlement to compensation arising
from any matter referred to in section 7A.
Part 1.1B--Recognition principles
7E Recognition principles
(1) The right of Aboriginal children, families
and communities in Victoria to
self-determination must be recognised,
respected and supported.
(2) When considering the views of Aboriginal
children, decision-makers must uphold their
cultural rights and sustain their connections
to family, community, culture and Country.
(3) Understanding of, and respect and support
for, Aboriginal culture, cultural diversity,
customary lore, knowledge, perspectives and
expertise is to be demonstrated in
decision-making.
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Part 2--Amendment of the Children, Youth and Families Act 2005
(4) Strong connections with culture, family,
Elders, communities and Country are to be
recognised as the foundations needed for
Aboriginal children to develop and thrive
and to be protected from harm.
(5) Historic and ongoing biases and structural
and everyday racisms create barriers to the
best interests of the Aboriginal child and are
to be recognised and overcome.
(6) The planning and provision of child and
family services for Aboriginal children and
Aboriginal families under this Act is to be
based on commitment, accountability and
responsibility to Aboriginal people in
Victoria, with proper consideration to be
given to the views of Aboriginal-led
community services.
(7) An Aboriginal child's Aboriginal family,
Elders and any Aboriginal-led community
service that is responsible under this Act for
the provision of services to the Aboriginal
child each have a right to participate in the
making of decisions under this Act that relate
to the child, and must be given an
opportunity to participate in the making of
those decisions.
(8) Partnerships between the Secretary and
Aboriginal-led community services in
relation to the planning and provision of
child and family services are to be equitable
and support self-determination.
(9) Any transfer of decision-making to an
Aboriginal-led community service under this
Act is to be with the free, prior and informed
consent of the Aboriginal-led community
service.
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(10) Funding provided under this Act to
Aboriginal-led community services
(separately or in partnership with other
community services) to provide child and
family services is to be transparent,
equitable, flexible and sustainable and
support self-determination.
(11) In this section--
Aboriginal-led community service means a
registered community service that--
(a) is managed by Aboriginal
persons; and
(b) provides services for the benefit of
Aboriginal persons.
7F Courts to have regard to and apply
recognition principles
The Children's Court must have regard to
and apply the principles set out in
section 7E(1) to (5) (where relevant) in
making any decision or taking any action in
relation to an Aboriginal child.
7G Secretary and community services to have
regard to and give effect to recognition
principles
(1) The Secretary must have regard to and give
effect to the principles set out in section 7E
(where relevant) in making any decision or
taking any action under this Act--
(a) in relation to an Aboriginal child; or
(b) in relation to an Aboriginal family; or
(c) in relation to the planning or provision
of services under this Act to Aboriginal
children and Aboriginal families.
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(2) A community service must have regard to
and give effect to the principles set out in
section 7E (where relevant) in making any
decision or taking any action in relation to an
Aboriginal child for whom it is providing, or
is to provide, services under this Act.
7H Role of recognition principles
(1) The recognition principles are intended--
(a) to give guidance in the administration
of this Act; and
(b) to ensure that the distinct cultural rights
of Aboriginal children and Aboriginal
families and the right of Aboriginal
people to self-determination are
recognised, respected and supported.
(2) The recognition principles apply subject to
section 10.
(3) The recognition principles--
(a) apply in addition to the principles in
Divisions 3 and 4 of Part 1.2; and
(b) do not limit the principles in
Divisions 3 and 4 of Part 1.2.
(4) Nothing in this Part applies in relation to any
decision or action under Chapter 5 or
Chapter 7 (in relation to any matter under
Chapter 5).".
4A Aboriginal Child Placement Principle
(1) After section 13(3) of the Children, Youth and
Families Act 2005 insert--
"(4) For the avoidance of doubt, the Court or a
bail justice (as the case may be) must have
regard to the Aboriginal Child Placement
Principle in making any decision or taking
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any action in respect of a child in need of
protection under Chapter 4.".
5 Further principles for placement of Aboriginal child
(1) In the heading to section 14 of the Children,
Youth and Families Act 2005, for "placement of
Aboriginal child" substitute "Aboriginal
children".
(2) After section 14(1) of the Children, Youth and
Families Act 2005 insert--
"Prevention principle
(1A) An Aboriginal child has a right to be brought
up within the child's family and community.
Partnership principle
(1B) The Aboriginal community to which the
child belongs and other respected Aboriginal
persons have a right to participate in the
making of a significant decision in relation to
an Aboriginal child under this Act.
(1C) Representatives of the Aboriginal
community have the right to participate in
the design and implementation of child
protection and community services relating
to Aboriginal children and their families
under this Act.
Participation principle
(1D) The parents and members of the extended
family of an Aboriginal child have a right to
participate, and to be enabled to participate
in an administrative or judicial
decision-making process under this Act that
relates to that child.
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Connection principle
(1E) An Aboriginal child has a right to develop
and maintain a connection with the child's
family, community, culture, Country and
language.".
6 Delegation
After section 17(2) of the Children, Youth and
Families Act 2005 insert--
"(3) The Secretary may, by instrument, delegate
to an executive within the meaning of the
Public Administration Act 2004 the power
to make an authorisation under section 18.".
7 Section 18 substituted and new sections 18AAA
and 18AAB inserted
For section 18 of the Children, Youth and
Families Act 2005 substitute--
"18 Secretary may authorise principal officer
of Aboriginal agency to act
(1) The Secretary, in writing, may authorise the
principal officer of an Aboriginal agency to
perform specified functions and exercise
specified powers referred to in subsection (2)
in respect of any of the following--
(a) an Aboriginal child;
(b) a child or class of children who the
Secretary believes to be an Aboriginal
child or Aboriginal children;
(c) if an authorisation has been made under
this subsection in relation to an
Aboriginal child, a non-Aboriginal
child who is a sibling of that Aboriginal
child;
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(d) if an authorisation has been made under
this subsection in relation to a child or
class of children who the Secretary
believes to be an Aboriginal child or
Aboriginal children, a non-Aboriginal
child who is a sibling of that child or
those children.
(2) The functions and powers that may be
specified are--
(a) functions and powers conferred by or
under this Act on the Secretary as a
protective intervener; and
(b) functions and powers conferred by or
under this Act on the Secretary to
receive reports under section 185 and to
investigate those reports; and
(c) functions and powers conferred by or
under this Act on the Secretary in
relation to a protection order or relevant
order.
(3) An authorisation under this section may only
be made with the agreement of the
Aboriginal agency and the principal officer.
(4) Before giving an authorisation, the Secretary
must provide the Aboriginal agency and the
principal officer with all information that is
known to the Secretary and that is reasonably
necessary to assist the Aboriginal agency and
the principal officer to make an informed
decision as to whether or not to agree to the
authorisation.
(5) The principal officer may only be authorised
if the principal officer is an Aboriginal
person.
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(6) Before giving an authorisation under
subsection (1)(a) or (c), the Secretary must
have regard to any view expressed by the
child and the parent of the child if those
views can be reasonably obtained.
(7) On an authorisation being given, this Act
applies in relation to the performance of the
specified function or the exercise of the
specified power as if the principal officer
were the Secretary.
(8) In this section--
relevant order means--
(a) a temporary assessment order; or
(b) an interim accommodation order;
or
(c) a therapeutic treatment order; or
(d) a therapeutic treatment
(placement) order; or
(e) a permanent care order.
18AAA Revocation of authorisation under
section 18(1)
(1) The Secretary may at any time in writing
revoke an authorisation under section
18(1)(a) or (c) and on that revocation the
Secretary may continue and complete any
action commenced under the authorisation
by the principal officer.
(2) The Secretary may at any time in writing
revoke an authorisation under section
18(1)(b) or (d) in respect of any or all
children who are the subject of the
authorisation and on that revocation the
Secretary may continue and complete any
action commenced under the authorisation
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No. of 2023
Part 2--Amendment of the Children, Youth and Families Act 2005
by the principal officer in relation to the
children in respect of whom the authorisation
is revoked.
(3) On the revocation of an authorisation under
this section, the principal officer must
provide the Secretary with all of the records
that have been created by or on behalf of the
Aboriginal agency, or provided to the
Aboriginal agency, in respect of the child as
a result of the authorisation.
(4) Despite the revocation of an authorisation in
respect of an Aboriginal child or a child or
class of children who the Secretary believes
to be an Aboriginal child or Aboriginal
children, an authorisation under section
18(1)(c) or (d) in respect of a non-Aboriginal
child who is a sibling of that child or those
children continues to have effect until
revoked.
18AAB Principal officer to notify Secretary if
principal officer considers authorisation
no longer in best interests
(1) At any time after an authorisation under
section 18 has been made, if the principal
officer of the Aboriginal agency considers
that the authorisation is no longer in the best
interests of a particular child or children who
are the subject of that authorisation, the
principal officer must notify the Secretary of
this in writing as soon as practicable.
(2) In considering whether the authorisation is
no longer in the best interests of a child, the
principal officer must have regard to any
view expressed by the child and the parent of
the child, if those views can reasonably be
obtained.
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(3) On receiving a notification under this
section, the Secretary may revoke the
authorisation made under section 18 in
accordance with section 18AAA.
(4) Nothing in this section affects the Secretary's
power under section 18AAA to otherwise
revoke the authorisation.".
8 Use of information disclosed to Aboriginal agency
and principal officer
In section 18D(1) of the Children, Youth and
Families Act 2005, for "section 18(2A)"
substitute "section 18(4)".
9 New section 19A inserted
After section 19 of the Children, Youth and
Families Act 2005 insert--
"19A Information use and disclosure for
purposes of authorised functions and
powers
(1) The Secretary may disclose information to a
principal officer authorised under section 18
or 19 for the performance of a function or
exercise of a power by that principal officer
under the authorisation.
(2) The principal officer may disclose to the
Secretary any information obtained by the
principal officer in the course of performing
functions or exercising powers under the
authorisation, if the information is necessary
for performance of those functions or
exercise of those powers.
(3) The principal officer may disclose to any
person any information obtained by the
principal officer in the course of performing
functions or exercising powers under the
authorisation, if the principal officer
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reasonably believes that the information is
necessary for performance of those functions
or exercise of those powers.
(4) The Secretary may require the principal
officer to give information to the Secretary
obtained by the principal officer in the
course of performing functions or exercising
powers under the authorisation if the
information is necessary to update records
held by the Secretary relating to the
performance of functions or exercise of
powers in relation to a child who is the
subject of the authorisation.".
10 Who is a protective intervener?
In section 181 of the Children, Youth and
Families Act 2005--
(a) in paragraph (b), for "officers." substitute
"officers;";
(b) after paragraph (b) insert--
"(c) the principal officer of an Aboriginal
agency authorised under section 18 to
perform functions and exercise powers
of a protective intervener, to the extent
that the principal officer performs those
functions and exercises those powers in
relation to a child who is the subject of
the authorisation.".
11 Disclosure and use of information under this Act
After section 192(3) of the Children, Youth and
Families Act 2005 insert--
"(4) In this section--
(a) a reference to the Secretary includes a
reference to a principal officer who is
performing functions or exercising
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powers conferred on the Secretary
under an authorisation made under
section 18 or 19; and
(b) a reference to a protective intervener
includes a reference to a principal
officer who is performing functions or
exercising powers of a protective
intervener under an authorisation made
under section 18.".
12 Management of child protection proceedings
In section 215B(1) of the Children, Youth and
Families Act 2005, for "Part 1.2" substitute
"Part 1.1B or 1.2".
13 Amendment of Schedule 1
In clause 5(a) of Schedule 1 to the Children,
Youth and Families Act 2005, for "Part 1.2"
substitute "Parts 1.1B and 1.2".
14 New sections 633 and 634 inserted
At the end of Part 8.6 of the Children, Youth and
Families Act 2005 insert--
"633 Transitional provision--Children and
Health Legislation Amendment
(Statement of Recognition, Aboriginal
Self-determination and Other Matters)
Act 2023--saving of authorisations of
principal officers
(1) This section applies if, immediately before
the commencement day, a principal officer
of an Aboriginal agency was authorised
under section 18.
(2) On and after the commencement day--
(a) the principal officer is taken to have
been authorised under section 18 as
substituted by the Children and
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Part 2--Amendment of the Children, Youth and Families Act 2005
Health Legislation Amendment
(Statement of Recognition,
Aboriginal Self-determination and
Other Matters) Act 2023; and
(b) the authorisation continues in effect,
subject to its terms and conditions, as if
made under section 18 as substituted by
the Children and Health Legislation
Amendment (Statement of
Recognition, Aboriginal
Self-determination and Other
Matters) Act 2023 until the earliest of
the following--
(i) it is revoked by the Secretary
under section 18AAA; or
(ii) the protection order in respect of
the child to whom the
authorisation relates ceases to be
in force.
(3) Any instrument of delegation made under
section 18B (as in force immediately before
the commencement day) in respect of powers
or functions specified in the authorisation
and in effect immediately before the
commencement day continues in effect on
and after the commencement day, subject to
its terms and conditions, and may be revoked
accordingly.
(4) In this section--
commencement day means the day on which
section 7 of the Children and Health
Legislation Amendment
(Statement of Recognition,
Aboriginal Self-determination and
Other Matters) Act 2023 comes into
operation.
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634 Transitional regulations--Children and
Health Legislation Amendment
(Statement of Recognition, Aboriginal
Self-determination and Other Matters)
Act 2023
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the enactment of the Children and
Health Legislation Amendment
(Statement of Recognition, Aboriginal
Self-determination and Other Matters)
Act 2023 (the amending Act).
(2) Regulations made under subsection (1)
may--
(a) have a retrospective effect to a day not
earlier than the day on which the
amending Act receives the Royal
Assent; and
(b) be of limited or general application; and
(c) differ according to time, place and
circumstances; and
(d) confer a discretionary authority on a
specified person or body.
(3) Regulations referred to in subsection (1)
have effect despite anything to the contrary
in any Act (other than the amending Act or
the Charter of Human Rights and
Responsibilities Act 2006) or in any
subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it
commences.".
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Aboriginal Self-determination and Other Matters) Act 2023
No. of 2023
Part 3--Amendment of the Social Services Regulation Act 2021
Part 3--Amendment of the Social Services
Regulation Act 2021
15 Heading to Subdivision 1 of Division 3 of Part 11
inserted
Before section 319 of the Social Services
Regulation Act 2021 insert--
"Subdivision 1--General transitional
provisions".
16 Investigation of conduct engaged in before the
commencement of Part 5
For section 319(2)(b) of the Social Services
Regulation Act 2021 substitute--
"(b) the Suitability Panel--
(i) determined under section 106 of that
Act that the person does not pose an
unacceptable risk of harm to children;
or
(ii) determined under section 112 of that
Act that the person's disqualification
from registration should be removed.".
17 Continuation of secure welfare services
(1) In the heading to section 329 of the Social
Services Regulation Act 2021, after "services"
insert "and community services".
(2) In section 329 of the Social Services Regulation
Act 2021, for "by the Secretary within the
meaning of that Act" substitute "to meet the
needs of children requiring protection, care or
accommodation".
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(3) At the end of section 329 of the Social Services
Regulation Act 2021 insert--
"(2) A community service established under
section 44 of the Children, Youth and
Families Act 2005 that is being operated to
meet the needs of children requiring
protection, care or accommodation
immediately before the commencement of
Part 3 is, on and from that commencement,
taken to be registered under section 23 to
provide the social services prescribed to be
equivalent to the social services being
provided immediately before that
commencement.".
18 New Subdivision 2 of Division 3 of Part 11 inserted
After section 330 of the Social Services
Regulation Act 2021 insert--
"Subdivision 2--Continued operation of
Suitability Panel
330A Definitions
In this Subdivision--
commencement day means the day on which
Part 5 comes into operation;
disqualified person has the same meaning as
in section 74 of the Children, Youth
and Families Act 2005 immediately
before the commencement day;
pending matter means--
(a) a matter referred to the Suitability
Panel--
(i) by the Secretary under
section 96 of the Children,
Youth and Families
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Act 2005 before the
commencement day; and
(ii) in relation to which the
Suitability Panel has not
made a final determination
or finding immediately
before the commencement
day; or
(b) an application by a disqualified
person to the Suitability Panel--
(i) made under section 110 of
the Children, Youth and
Families Act 2005 before
the commencement day; and
(ii) in relation to which the
Suitability Panel has not
made a final determination
immediately before the
commencement day;
Secretary has the same meaning as in the
Children, Youth and Families
Act 2005 immediately before the
commencement day;
transitional period means the period of
3 years beginning on the
commencement day.
330B Suitability Panel may continue and
complete pending matters during
transitional period
(1) Subject to this Subdivision, the Suitability
Panel may, during the transitional period,
continue and complete a pending matter in
accordance with Part 3.4 of the Children,
Youth and Families Act 2005 as if that Part
had not been repealed.
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(2) Without limiting subsection (1), during the
transitional period the Suitability Panel may,
for the purposes of continuing or completing
a pending matter, do one or more of the
following (as appropriate) as if Part 3.4 of
the Children, Youth and Families
Act 2005 had not been repealed--
(a) constitute the Suitability Panel under
section 103 of that Act;
(b) cause notice of a hearing to be served
under section 104 or 111 of that Act;
(c) determine whether or not an allegation
is proved under section 105(1) of that
Act;
(d) make a finding of misconduct under
section 105(5) of that Act;
(e) determine whether or not a person
poses an unacceptable risk of harm to
children under section 106(1) of that
Act;
(f) make a finding that a person should be
disqualified from registration under
section 106(3) of that Act;
(g) determine whether or not a person
should continue to be disqualified or
should have a disqualification removed
under section 112 of that Act.
330C Members and executive officer of
Suitability Panel
(1) On the commencement day--
(a) a person holding office as the
chairperson, the acting chairperson or a
member of the Suitability Panel
appointed under section 99 of the
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Children, Youth and Families
Act 2005 immediately before the
commencement day is taken to
continue to hold office on the same
terms and conditions and with the same
accrued and accruing entitlements as
applied to that person immediately
before that day; and
(b) a person employed as the executive
officer of the Suitability Panel under
section 102 of the Children, Youth
and Families Act 2005 immediately
before the commencement day is taken
to continue to be employed as the
executive officer.
(2) A person is taken to hold office or to be
employed under subsection (1)--
(a) on the same terms and conditions and
with the same accrued and accruing
entitlements as applied to that person
immediately before the commencement
day; and
(b) until the earlier of the following--
(i) the day on which the term
specified in the instrument of
appointment or contract of
employment expires;
(ii) the day on which the transitional
period expires.
(3) Nothing in this section prevents a person
from resigning as the chairperson, the acting
chairperson, a member or the executive
officer of the Suitability Panel in accordance
with Part 3.4 of the Children, Youth and
Families Act 2005 as in force immediately
before the commencement day.
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330D Appointment of members and
employment of executive officer
Despite the repeal of Part 3.4 of the
Children, Youth and Families Act 2005,
during the transitional period--
(a) section 99 of that Act continues in force
as if a reference to the Minister were a
reference to the Regulator; and
(b) section 102 of that Act continues in
force.
330E Limitations on membership of Suitability
Panel and Panels convened under Part 5
(1) During the transitional period, a member of
the Suitability Panel must not be one of the
members that constitute the Suitability Panel
for the purposes of completing a pending
matter if--
(a) that member of the Suitability Panel is
a member of a Panel convened under
section 68 to determine whether a
WCES worker or carer is to be
excluded from providing a WCES
service or a specified class of WCES
services; and
(b) that WCES worker or carer is the
subject of the pending matter being
completed by the Suitability Panel.
(2) Despite anything to the contrary in
section 68, the Regulator must not appoint a
Panel candidate to be a member of a Panel
convened to determine whether a WCES
worker or carer is to be excluded from
providing a WCES service or a specified
class of WCES services if, at the time of the
appointment--
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(a) the Panel candidate is a member of the
Suitability Panel; and
(b) that WCES worker or carer is the
subject of a pending matter being
completed by the Suitability Panel.
330F Notice of a finding or determination
during transitional period
Despite the repeal of Part 3.4 of the
Children, Youth and Families Act 2005,
sections 107, 111 and 113 of that Act
continue in force during the transitional
period as if a reference to the Secretary were
a reference to the Regulator.
330G Deemed exclusion provisions--
transitional period
(1) If the Suitability Panel makes a decision
specified in subsection (2) during the
transitional period for the purposes of
continuing or completing a pending matter,
that decision is taken to be an exclusion
decision for the purposes of this Act.
(2) For the purposes of subsection (1), the
following decisions are specified--
(a) a finding of misconduct in accordance
with section 105(5) of the Children,
Youth and Families Act 2005 as in
force immediately before the
commencement day;
(b) a finding that a person should be
disqualified from registration in
accordance with section 106(3) of that
Act as in force immediately before the
commencement day;
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(c) a finding that a person should continue
to be disqualified in accordance with
section 112 of that Act as in force
immediately before the commencement
day.
330H Review by VCAT of decisions during
transitional period
(1) A person may apply to VCAT for review of
a finding or determination made by the
Suitability Panel during the transitional
period in accordance with section 105, 106
or 112 of the Children, Youth and Families
Act 2005 (as in force immediately before the
commencement day) for the purposes of
continuing or completing a pending matter.
(2) An application for review must be made
within 28 days after the later of the
following--
(a) the day on which the applicant is given
notice of the finding or determination
under section 107 or 113 of the
Children, Youth and Families
Act 2005 as continued in force by
section 330F;
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998,
the person requests a statement of
reasons for the finding or
determination, the day on which the
statement of reasons is given to the
person or the person is informed under
section 46(5) of that Act that a
statement of reasons will not be given.
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(3) If an application is made under this section,
the Regulator is a party to the proceeding
before VCAT.
Note
See also section 59 of the Victorian Civil and
Administrative Tribunal Act 1998.".
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No. of 2023
Part 4--Amendment of the Child Wellbeing and Safety Act 2005
Part 4--Amendment of the Child Wellbeing
and Safety Act 2005
Division 1--Amendments relating to definition of
employee
19 Definitions
(1) In section 3(1) of the Child Wellbeing and
Safety Act 2005 insert the following
definitions--
"provider, in relation to a worker or volunteer
worker, means a person who, in the course of
conducting a business or undertaking,
supplies one or more individuals to another
person to perform work in and as part of the
business or undertaking of the other person;
secondee, in relation to an entity to which the
reportable conduct scheme applies, means an
individual who--
(a) has been provided to the entity by a
person to perform work in and as part
of the business or undertaking of the
entity on a temporary basis for a
secondment period; and
(b) is engaged as an employee of the
person;
volunteer worker has the meaning given in
section 3A(3);
worker has the meaning given in section 3A(1);".
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(2) In section 3(1) of the Child Wellbeing and
Safety Act 2005--
(a) after paragraph (b) of the definition of
employee insert--
"(ba) a person who--
(i) is supplied to the entity by a
provider for whom the person is a
worker or volunteer worker; and
(ii) performs work in and as part of
the business or undertaking of the
entity under the direction,
supervision or control of the
entity, whether or not the work
relates to children; or
Examples
1. A relief teacher in a school.
2. An agency nurse working in a hospital.
(bb) a secondee to the entity who performs
work in and as part of the business or
undertaking of the entity under the
direction, supervision or control of the
entity, whether or not the work relates
to children; or
(bc) if the entity is an applicable entity who
is an individual, the individual; or
(bd) engaged by the entity through another
body of which the person is a director
or other office holder, whether or not
the person provides services to
children; or
Example
A sole director of a company that has entered
into a contract for services with the entity,
provided that the director performs work for the
entity.";
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(b) in paragraph (d)(iv) of the definition of
employee, for "order;" substitute "order; or";
(c) after paragraph (d) of the definition of
employee insert--
"(e) a person in a prescribed class of
person--
but does not include a person in a class of
person prescribed not to be an employee;".
20 New section 3A inserted
After section 3 of the Child Wellbeing and
Safety Act 2005 insert--
"3A Meaning of worker and volunteer worker
(1) For the purposes of the reportable conduct
scheme, an individual is a worker for a
provider if--
(a) under an arrangement between the
individual and the provider, the
provider supplies or may supply the
individual to one or more persons to
perform work; and
(b) the provider is obliged to pay the
individual (in whole or in part) for the
performance of that work by the
individual, whether payment is
provided directly or indirectly, or
through one or more intermediaries.
(2) Without limiting subsection (1), an
individual may be a worker for a provider
whether or not--
(a) the individual is employed by the
provider; or
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(b) a contract has been entered into
between the individual and the
provider; or
(c) the individual is an apprentice or is
under a training contract, both within
the meaning of the Education and
Training Reform Act 2006.
(3) For the purposes of the reportable conduct
scheme, an individual is a volunteer worker
for a provider if under an arrangement
between the individual and the provider, the
provider supplies or may supply the
individual to one or more persons to perform
work on a voluntary basis.".
Division 2--Amendments relating to commencing a
proceeding under Part 5A
21 New sections 16ZKA and 16ZKB inserted
After section 16ZK of the Child Wellbeing and
Safety Act 2005 insert--
"16ZKA Power to bring a proceeding
(1) A proceeding for an offence against this Part
may be commenced by the Commission or a
police officer.
(2) A proceeding commenced under subsection
(1) may be taken over and continued at any
time by any other person authorised by
subsection (1) to commence proceedings.
(3) In a proceeding for an offence against this
Part, it must be presumed, in the absence of
evidence to the contrary, that the person
commencing the proceeding was authorised
to commence the proceeding.
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16ZKB Time for commencing proceeding for
offence against section 16M(4)
Despite section 7(1) of the Criminal
Procedure Act 2009, a proceeding for an
offence against section 16M(4) may be
commenced within 3 years of the
commission of the alleged offence.".
Division 3--Amendments relating to enforcement
and monitoring of compliance with section 16M
22 Definitions
In section 3(1) of the Child Wellbeing and
Safety Act 2005 insert the following
definitions--
"notice to produce, in Part 5B, means a notice
given to a person under section 16ZZI;
reportable conduct authorised officer means a
reportable conduct authorised officer
appointed under section 16ZO;
reportable conduct notice to comply means a
notice given under section 16ZZJ;".
23 Definition
In section 16A of the Child Wellbeing and
Safety Act 2005, after "Part" insert
"and Part 5B".
24 Objectives of Commission under this Part
(1) In the heading to section 16F of the Child
Wellbeing and Safety Act 2005, after "Part"
insert "and Part 5B".
(2) In section 16F of the Child Wellbeing and Safety
Act 2005, after "Part" insert "and Part 5B".
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25 Functions of Commission under this Part
(1) In the heading to section 16G of the Child
Wellbeing and Safety Act 2005, after "Part"
insert "and Part 5B".
(2) After section 16G(h) of the Child Wellbeing and
Safety Act 2005 insert--
"(ha) in relation to section 16M--
(i) to monitor and enforce compliance with
section 16M(1) by the head of an
entity; and
(ii) to investigate contraventions of
section 16M(4);".
(3) In section 16G(j) of the Child Wellbeing and
Safety Act 2005, after "Part" insert "or Part 5B".
26 Powers of the Commission
In section 16H of the Child Wellbeing and
Safety Act 2005, after "Part" insert
"and Part 5B".
27 False or misleading information
In section 16ZF of the Child Wellbeing and
Safety Act 2005, after "Part" insert "or Part 5B".
28 Service of documents
In section 16ZK of the Child Wellbeing and
Safety Act 2005, after "this Part" (where twice
occurring) insert "or Part 5B".
29 Annual reports and other reports
For section 16ZL(1) of the Child Wellbeing and
Safety Act 2005 substitute--
"(1) The Commission in its annual report for a
financial year under Part 7 of the Financial
Management Act 1994 must include, for the
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financial year to which the report of
operations relates--
(a) a review of the operation of the
reportable conduct scheme; and
(b) details of activities engaged in by the
Commission under this Part and
Part 5B to monitor and enforce
compliance with section 16M.".
30 New Part 5B inserted
After Part 5A of the Child Wellbeing and Safety
Act 2005 insert--
"Part 5B--Enforcement and
monitoring of compliance with
section 16M
Division 1--Reportable conduct
authorised officers
16ZO Appointment of reportable conduct
authorised officer
(1) The Commission may, by instrument,
appoint any person or class of persons
employed or engaged by the Commission to
be a reportable conduct authorised officer for
the purposes of this Part.
(2) An appointment under this section--
(a) may be subject to any specified
conditions; and
(b) may be varied, suspended or revoked
by the Commission at any time.
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(3) The Commission must not appoint a person
under this section unless it is satisfied that
the person is appropriately qualified or has
successfully completed appropriate training.
16ZP Identity card for reportable conduct
authorised officer
(1) If the Commission appoints a reportable
conduct authorised officer under
section 16ZO, the Commission must--
(a) issue the officer with an identity card
that complies with subsection (2); or
(b) if the reportable conduct authorised
officer is also an authorised officer
appointed under section 27 and has a
current identity card issued under
section 28(1) (the existing identity
card)--
(i) amend the existing identity card
so that it complies with the
requirements of subsection (2); or
(ii) issue a supplementary identity
card complying with any
requirements of subsection (2) that
are not met by the existing identity
card; or
(iii) request the authorised officer to
return the existing identity card
and issue a new identity card that
complies with the requirements of
section 28(2) and subsection (2).
(2) An identity card must--
(a) state the reportable conduct authorised
officer's name; and
(b) contain a photograph of the officer; and
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(c) state that the person to whom it is
issued is a reportable conduct
authorised officer appointed by the
Commission for the purposes of this
Part.
(3) A reportable conduct authorised officer must
return the identity card issued under this
section to the Commission as soon as
practicable after their appointment under
section 16ZO expires or is revoked.
16ZQ Production of identity card
(1) Subject to subsection (3), a reportable
conduct authorised officer must produce the
officer's identity card for inspection before
exercising a power under this Part if asked to
do so.
(2) If it is not practicable to comply with
subsection (1) before exercising the power,
the reportable conduct authorised officer
must produce the identity card for inspection
at the first reasonable opportunity.
(3) If a reportable conduct authorised officer
enters (whether with or without a warrant)
any premises or place for the purposes of
exercising a power or performing a function
under this Part, the officer must produce the
officer's identity card for inspection
immediately before or upon the first entry to
the premises or place.
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Division 2--Powers of entry and
inspection
16ZR Powers of reportable conduct authorised
officers to enter premises
(1) A reportable conduct authorised officer may
enter and inspect any premises or place if the
officer reasonably believes it is a premises or
place from or in which an entity--
(a) operates; or
(b) exercises care, supervision or authority
over children; or
(c) provides support for an activity referred
to in paragraph (a) or (b).
(2) Subject to subsection (3), a reportable
conduct authorised officer may only enter a
premises or place under subsection (1)--
(a) if the officer has provided notice to the
occupier of the premises or place in
accordance with section 16ZS and the
occupier consents to the entry, for the
purposes of monitoring compliance by
the head of an entity with section
16M(1); or
(b) in accordance with a warrant issued
under section 16ZV in relation to the
premises or place; or
(c) in the case of any premises or place
other than residential premises, if the
officer reasonably believes that the
head of the entity is not complying, or
has not complied with section 16M(1).
(3) While exercising a power of entry under
subsection (2)(a) or (c), a reportable conduct
authorised officer must not enter any part of
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a premises or place in which the entity
provides accommodation or residential
services unless--
(a) the resident of that part of the premises
or place consents to the entry; or
(b) if the resident is unable to consent, the
resident's parent or guardian consents to
the entry.
(4) Before obtaining the consent of the resident,
parent or guardian for the purposes of
subsection (3), the reportable conduct
authorised officer must--
(a) inform the resident, parent or
guardian--
(i) of the purpose of the entry; and
(ii) that the resident, parent or
guardian may refuse to consent to
the entry; and
(iii) that the resident, parent or
guardian may refuse to consent to
the seizure of any thing by the
authorised officer during the
entry; and
(iv) that the officer may exercise any
or all of the powers set out in
section 16ZT during the entry
without obtaining further consent
from the resident, parent or
guardian; and
(v) that the resident, parent or
guardian may refuse to consent to
the officer exercising a power
specified in section 16ZT during
the entry; and
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(vi) that any thing seized by the officer
during the entry with the consent
of the resident, parent or guardian
may be used in evidence in
proceedings in relation to offences
under this Act; and
(b) ask the resident, parent or guardian to
sign an acknowledgement setting out--
(i) that the resident, parent or
guardian has been informed of the
matters set out in paragraph (a);
and
(ii) that the resident, parent or
guardian consents to the entry;
and
(iii) the time and date the resident,
parent or guardian provided
consent.
(5) A resident, parent or guardian who signs an
acknowledgement under subsection (4)(b)
must be given a copy of the signed
acknowledgement before the reportable
conduct authorised officer leaves the
premises.
(6) A signed acknowledgement under subsection
(4)(b) is evidence that the resident, parent or
guardian consented to the entry of a premises
or place.
(7) If, in any proceeding, a signed
acknowledgement under subsection (4)(b) is
not produced to the court or tribunal, it must
be presumed until the contrary is proved that
the resident, parent or guardian did not
consent to the entry of a premises or place.
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(8) A reportable conduct authorised officer may
exercise a power of entry under subsection
(2)(a) or (c)--
(a) during the normal business hours of the
premises or place; and
(b) if the entity provides services outside
normal business hours, during the
entity's hours of operation; and
(c) at any time if the occupier consents to
the entry.
(9) If the reportable conduct authorised officer is
on the premises or place with the consent of
the occupier or a resident, parent or guardian,
the officer must leave the premises or place
if the occupier, resident, parent or guardian
asks the officer to do so.
16ZS Notice required for entry with consent
(1) A reportable conduct authorised officer must
not exercise a power of entry or inspection
under section 16ZR(2)(a), unless the officer
before obtaining the occupier's consent--
(a) produces the officer's identity card for
inspection; and
(b) informs the occupier--
(i) of the purpose of the entry; and
(ii) that the occupier may refuse to
consent to the entry; and
(iii) that the occupier may refuse to
consent to the seizure of any thing
by the authorised officer during
the entry; and
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(iv) that the officer may exercise any
or all of the powers set out in
section 16ZT during the entry
without obtaining further consent
from the occupier; and
(v) that the occupier may refuse to
consent to the officer exercising a
power specified in section 16ZT
during the entry; and
(vi) that any thing seized by the
authorised officer during the entry
with the consent of the occupier
may be used in evidence in
proceedings in relation to offences
under this Act; and
(c) asks the occupier to sign an
acknowledgement setting out--
(i) that the occupier has been
informed of the matters set out in
paragraph (b); and
(ii) that the occupier consents to the
entry; and
(iii) the time and date the occupier
provided consent.
(2) An occupier who signs an acknowledgement
under subsection (1)(c) must be given a copy
of the signed acknowledgement before the
reportable conduct authorised officer leaves
the premises or place.
(3) A signed acknowledgement under subsection
(1)(c) is evidence that the occupier consented
to the entry of a premises or place.
(4) If, in any proceeding, a signed
acknowledgement under subsection (1)(c) is
not produced to the court or tribunal, it must
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be presumed until the contrary is proved that
the occupier did not consent to the entry of a
premises or place.
16ZT Powers after entry and consent
(1) This section applies if a reportable conduct
authorised officer enters any premises or
place under section 16ZR(2)(a).
(2) The reportable conduct authorised officer
may do any of the following--
(a) search any part of the premises or
place;
(b) inspect and examine any document or
thing at the premises or place;
(c) make enquiries with any person at the
premises or place;
(d) observe any activity being conducted at
the premises or place;
(e) take photographs, or make any type of
recording or sketches, of any document,
thing or activity at the premises or
place;
(f) copy or take an extract from any
document at the premises or place;
(g) take into or onto the premises or place
any person, equipment or materials;
(h) use and operate any equipment and
materials, including but not limited to
any disk, tape or storage device, at the
premises or place;
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(i) secure any electronic equipment that
the officer reasonably believes stores or
contains information that may be lost,
destroyed or tampered with if the
equipment is not secured;
(j) request any person at the premises to
give information that the officer
reasonably believes is necessary to
determine whether or not the head of an
entity is complying, or has complied,
with section 16M(1);
(k) seize any document or any other thing
at the premises or place that the officer
reasonably believes is evidence relevant
to whether the head of an entity is not
complying, or has not complied, with
section 16M(1);
(l) request any person at the premises or
place to provide the officer with any
reasonable assistance;
(m) request any person at the premises or
place to comply with any lawful
direction, whether written or oral, of the
officer.
(3) A reportable conduct authorised officer may
exercise a power under subsection (2) only if
the officer reasonably believes it is necessary
to do so to investigate whether the head of an
entity is not complying, or has not complied,
with section 16M(1).
16ZU Acknowledgement of document or thing
seized during entry with consent
(1) The reportable conduct authorised officer
must not seize any document or thing under
section 16ZT(2)(k) unless the officer asks
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the owner to sign an acknowledgement
setting out--
(a) that the owner consents to the seizure
of the document or thing; and
(b) the time and date the owner provided
consent.
(2) An owner who signs an acknowledgement
under subsection (1) must be given a copy of
the signed acknowledgement before the
reportable conduct authorised officer leaves
the premises.
(3) A signed acknowledgement under subsection
(1) is evidence that the owner consented to
the seizure of a document or thing.
(4) If, in any proceeding, a signed
acknowledgement under subsection (1) is not
produced to the court or tribunal, it must be
presumed until the contrary is proved that the
owner did not consent to the seizure of a
document or thing.
16ZV Application for warrant
(1) A reportable conduct authorised officer may
apply to a magistrate for a warrant in relation
to any premises or place if the officer
believes on reasonable grounds that--
(a) entry to the premises or place is
necessary to investigate whether the
head of an entity is not complying, or
has not complied, with section 16M(1);
or
(b) documents or other things relevant to
the possible contravention of section
16M(4) may be, or within 72 hours may
be, present at the premises or place.
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(2) The magistrate may issue the warrant if the
magistrate is satisfied, by information on
oath or by affirmation, that there are
reasonable grounds to believe that entry to
the premises or place is necessary on the
grounds on which issue of the warrant is
sought.
(3) A warrant issued under subsection (2) may
authorise a reportable conduct authorised
officer, with necessary and reasonable help
and force--
(a) to enter the premises or place, or any
specified part of the premises or place,
on one occasion; and
(b) to search for and seize a document or
thing specified in the warrant; and
(c) to seize any other document or thing, or
to copy or take an extract from any
document, that the officer reasonably
believes is relevant to a possible
contravention of section 16M(4).
(4) A warrant issued under subsection (2) must
state--
(a) the purpose for which the warrant is
issued; and
(b) the premises or place to be entered
under the warrant; and
(c) any document or thing that may be
seized under the warrant; and
(d) whether the entry is authorised to be
made at any time of the day or during
specified hours of the day; and
(e) any conditions to which the warrant is
subject; and
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(f) the day, within 7 days of the issue of
the warrant, on which the warrant
ceases to have effect; and
(g) that the warrant is issued in accordance
with the Magistrates' Court Act 1989.
(5) Subject to this section, the rules that apply to
search warrants under the Magistrates'
Court Act 1989 extend and apply to a
warrant issued under this section.
(6) Section 78(1)(b)(iii) of the Magistrates'
Court Act 1989 does not apply to a warrant
issued under this section.
16ZW Entry under warrant
(1) Before entering any premises or place under
a warrant issued under section 16ZV, a
reportable conduct authorised officer must--
(a) announce that the officer is authorised
by the warrant to enter the premises or
place; and
(b) give any person at the premises or place
an opportunity to allow entry to the
premises or place; and
(c) if the occupier is present at the
premises or place, give the occupier a
copy of the warrant.
Note
Section 16ZQ(3) sets out requirements for reportable
conduct authorised officers to produce identity cards.
(2) Subsection (1) does not apply if the
reportable conduct authorised officer
believes on reasonable grounds that
immediate entry to the premises or place is
required to ensure that the effective
execution of the warrant is not frustrated.
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16ZX Powers after entry under warrant
(1) This section applies if a reportable conduct
authorised officer enters any premises or
place under a warrant issued under
section 16ZV.
(2) The reportable conduct authorised officer
may, subject to any condition of the warrant,
do any of the following if the officer
considers it reasonably necessary for the
purposes of executing the warrant--
(a) search any part of the premises or
place;
(b) inspect and examine any document or
thing at the premises or place;
(c) make enquiries with any person at the
premises or place;
(d) observe any activity being conducted at
the premises or place;
(e) take photographs, or make any type of
recording or sketches, of any document,
thing or activity at the premises or
place;
(f) copy or take an extract from any
document at the premises or place;
(g) take into or onto the premises or place
any person, equipment or materials;
(h) use and operate any equipment and
materials, including but not limited to
any disk, tape or storage device, at the
premises or place;
(i) secure any electronic equipment that
the officer reasonably believes stores or
contains information that may be lost,
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destroyed or tampered with if the
equipment is not secured;
(j) any other thing the officer considers
reasonably necessary.
(3) The reportable conduct authorised officer
may, subject to any condition of the warrant,
require a person to do any of the following if
the officer considers it reasonably necessary
for the purposes of executing the warrant--
(a) produce a document or part of a
document located at the premises or
place that is under that person's
possession or control;
(b) disclose any information that the officer
reasonably believes the person has that
relates to whether the head of an entity
is not complying, or has not complied,
with section 16M(1);
(c) provide the officer with any reasonable
assistance;
(d) operate any equipment at the premises
or place to enable the officer to access
information stored on the equipment;
(e) comply with any lawful direction,
whether written or oral, of the officer.
(4) If a reportable conduct authorised officer
requires a person to do any thing under
subsection (3), the officer must--
(a) inform the person that it is an offence to
fail or refuse to comply with the
requirement without reasonable excuse;
and
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(b) inform the person that it is a reasonable
excuse for the person to refuse or fail to
comply with the requirement if
complying with the requirement would
tend to incriminate the person; and
(c) state the maximum penalty for failing
or refusing to comply with the
requirement.
(5) Subject to any condition of the warrant, if the
reportable conduct authorised officer secures
any electronic equipment under subsection
(2)(i), that equipment may be secured--
(a) subject to subsection (6), until the
earlier of the following--
(i) the end of the 24-hour period
beginning with the seizure of the
equipment;
(ii) the time at which the reportable
conduct authorised officer, or a
person providing technical
assistance to the officer, operates
the equipment for the purpose of
obtaining information described in
subsection (2)(i); or
(b) for any longer period with the consent
of the occupier of the premises or place.
(6) Subject to any condition of the warrant, the
reportable conduct authorised officer may
apply to a magistrate for an extension of the
period during which electronic equipment
may be secured if the officer reasonably
believes that the extension is necessary to
obtain information described in subsection
(2)(i).
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16ZY Failure to provide assistance
(1) A person must not, without reasonable
excuse, fail to comply with a requirement
made by a reportable conduct authorised
officer under section 16ZX(3).
Penalty: In the case of a body corporate,
120 penalty units;
In any other case, 30 penalty
units.
(2) Subsection (1) does not apply to a person if
the reportable conduct authorised officer did
not inform the person, in accordance with
section 16ZX(4)(b), that it is a reasonable
excuse to refuse or fail to comply with the
requirement if complying with the
requirement would tend to incriminate the
person.
16ZZ Powers after entry without consent or
warrant
(1) This section applies if a reportable conduct
authorised officer enters any premises or
place in accordance with section 16ZR(2)(c).
(2) The reportable conduct authorised officer
may do any of the following--
(a) search any part of the premises or
place;
(b) inspect and examine any document or
thing at the premises or place;
(c) make enquiries with any person at the
premises or place;
(d) observe any activity being conducted at
the premises or place;
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(e) take photographs, or make any type of
recording or sketches, of any document,
thing or activity at the premises or
place;
(f) copy or take an extract from any
document at the premises or place;
(g) take into or onto the premises or place
any person, equipment or materials;
(h) use and operate any equipment and
materials, including but not limited to
any disk, tape or storage device, at the
premises or place;
(i) secure any electronic equipment that
the officer reasonably believes stores or
contains information that may be lost,
destroyed or tampered with if the
equipment is not secured;
(j) with the consent of the owner of the
document or thing, seize any document
or any other thing at the premises or
place that the officer reasonably
believes is evidence relevant to whether
the head of an entity is not complying,
or has not complied, with section
16M(1).
(3) The reportable conduct authorised officer
may require a person at the premises or place
to do any of the following--
(a) produce a document or part of a
document located at the premises or
place that the officer reasonably
believes the person has that relates to
whether the head of an entity is not
complying, or has not complied, with
section 16M(1);
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(b) disclose any information that the officer
reasonably believes the person has that
relates to whether the head of an entity
is not complying, or has not complied,
with section 16M(1);
(c) operate any equipment at the premises
or place to enable the officer to access
information stored on the equipment.
(4) If a reportable conduct authorised officer
requires a person to do any thing under
subsection (3), the officer must--
(a) inform the person that it is an offence to
fail or refuse to comply with the
requirement without reasonable excuse;
and
(b) inform the person that it is a reasonable
excuse for the person to refuse or fail to
comply with the requirement if
complying with the requirement would
tend to incriminate the person; and
(c) state the maximum penalty for failing
or refusing to comply with the
requirement.
(5) The reportable conduct authorised officer
may request a person at the premises or place
to do any of the following--
(a) provide the officer with any reasonable
assistance;
(b) comply with any lawful direction,
whether written or oral, of the officer.
(6) A reportable conduct authorised officer may
exercise a power under subsection (2), (3) or
(5) only if the officer reasonably believes it
is reasonably necessary to do so to
investigate whether the head of an entity is
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not complying, or has not complied, with
section 16M(1).
(7) If the reportable conduct authorised officer
secures any electronic equipment under
subsection (2)(i), that equipment may be
secured--
(a) subject to subsection (8), until the
earlier of the following--
(i) the end of the 24-hour period
beginning with the seizure of the
equipment;
(ii) the time at which the officer, or a
person providing technical
assistance to the officer, operates
the equipment for the purpose of
obtaining information described in
subsection (2)(i); or
(b) for any longer period with the consent
of the occupier of the premises or place.
(8) The reportable conduct authorised officer
may apply to a magistrate for an extension of
the period during which electronic
equipment may be secured if the officer
reasonably believes that the extension is
necessary to obtain information described in
subsection (2)(i).
16ZZA Acknowledgment of seizure during entry
without consent
(1) The reportable conduct authorised officer
must not seize any document or thing under
section 16ZZ(2)(j) unless the officer--
(a) informs the owner that the owner may
refuse to consent to the seizure; and
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(b) asks the owner to sign an
acknowledgement setting out--
(i) that the owner consents to the
seizure of the document or thing;
and
(ii) the time and date the owner
provided consent.
(2) An owner who signs an acknowledgement
under subsection (1) must be given a copy of
the signed acknowledgement before the
reportable conduct authorised officer leaves
the premises.
(3) A signed acknowledgement under subsection
(1) is evidence that the owner consented to
the seizure of a document or thing.
(4) If, in any proceeding, a signed
acknowledgement under subsection (1) is not
produced to the court or tribunal, it must be
presumed until the contrary is proved that the
owner did not consent to the seizure of a
document or thing.
16ZZB Failure to provide assistance
(1) A person must not, without reasonable
excuse, fail to comply with a requirement
made by a reportable conduct authorised
officer under section 16ZZ(3).
Penalty: In the case of a body corporate,
120 penalty units;
In any other case, 30 penalty
units.
(2) Subsection (1) does not apply to a person if
the reportable conduct authorised officer did
not inform the person, in accordance with
section 16ZZ(4)(b), that it is a reasonable
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excuse to refuse or fail to comply with the
requirement if complying with the
requirement would tend to incriminate the
person.
16ZZC Protection against self-incrimination
(1) It is a reasonable excuse for an individual to
refuse or fail to comply with a requirement
of a reportable conduct authorised officer or
the Commission under this Part if complying
with the requirement would tend to
incriminate the individual.
(2) It is a reasonable excuse for an individual to
refuse or fail to comply with a notice to
produce, if complying with the notice would
tend to incriminate the person.
(3) It is a reasonable excuse for a person to
refuse or fail to comply with a reportable
conduct notice to produce or a notice to
comply if--
(a) in the case of a notice to produce, the
person believes on reasonable grounds
that the person does not have any
document or information required to be
produced under the notice; or
(b) in the case of a notice to comply, the
head of the entity reasonably considers
that the head of the entity is unable to
comply with the notice.
16ZZD Reportable conduct authorised officer
may interview child
(1) While exercising a power under section
16ZT(2), 16ZX(2) or 16ZZ(2), a reportable
conduct authorised officer may interview a
child present at the premises or place.
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(2) Before interviewing a child, the reportable
conduct authorised officer must consider,
and take all reasonable steps to mitigate, any
negative effect that the interview may have
on the child.
(3) Without limiting subsection (2), the
reportable conduct authorised officer must
consider whether the child's primary family
carer (within the meaning of the
Commission for Children and Young
People Act 2012) should be present during
the interview.
16ZZE Affidavits
A reportable conduct authorised officer who
is an authorised affidavit taker within the
meaning of the Oaths and Affirmations
Act 2018 may take an affidavit after entry to
any premises or place in accordance with
section 16ZR(2).
16ZZF Seizure of documents and things
(1) If a reportable conduct authorised officer
seizes a document or thing during entry to a
premises or place under section 16ZT
or 16ZZ or under a warrant issued under
section 16ZV, the officer must--
(a) give the owner of the document or
thing a written receipt of the seizure;
and
(b) within 21 days of the seizure, give the
owner a copy of that document certified
by the officer.
(2) A receipt under subsection (1)(a) must--
(a) identify the document or thing seized;
and
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(b) set out the name of the reportable
conduct authorised officer and a
method of contacting the officer; and
(c) set out the reason for the seizure; and
(d) contain any prescribed information.
(3) The reportable conduct authorised officer
must return any seized document or thing to
the owner--
(a) if the reason for the seizure no longer
applies; or
(b) if the document or thing was seized
under section 16ZT(2) or 16ZZ(2), if
the owner of the document or thing
withdraws consent for the seizure.
(4) If a seized document or thing is not returned
to the owner within 3 months of the seizure,
the reportable conduct authorised officer
must take reasonable steps to return the
document or thing to the owner unless--
(a) the proceeding or investigation for
which the document or thing was seized
has commenced but is not resolved or
finally determined; or
(b) the Magistrates' Court by order extends
the period during which the seized
document or thing may be held; or
(c) the owner consents to the document or
thing being held for a longer period; or
(d) the officer is authorised by any law to
destroy, continue to hold or dispose of
the document or thing.
(5) The reportable conduct authorised officer
may apply to a magistrate for an extension of
not more than 3 months of the period during
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which a seized document or thing may be
held.
(6) The magistrate must not grant the extension
sought unless the magistrate is satisfied that
the extension is necessary for the purposes of
an investigation into whether the head of an
entity is not complying, or has not complied,
with section 16M(1).
(7) If the reportable conduct authorised officer
makes an application for an extension under
subsection (5), the officer must give the
owner at least 7 days' notice of the hearing of
the application.
(8) The total period of all extensions granted
under subsection (6) in relation to a
particular document or thing must not exceed
12 months.
16ZZG Destruction of seized document or thing
(1) If, after taking reasonable steps to do so, a
reportable conduct authorised officer is not
able to return a document or thing seized
under section 16ZT or 16ZZ, or under a
warrant issued under section 16ZV, to the
owner, the Commission may apply to a
magistrate for permission to destroy the
document or thing.
(2) If the Commission applies under subsection
(1) for permission to destroy a document or
thing, the Commission must serve a copy of
the application on the owner.
(3) The magistrate may--
(a) grant the permission sought if the
magistrate considers it appropriate to
do so; and
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(b) make any other order the magistrate
considers appropriate, including but not
limited to an order for the payment of
costs for the destruction of the
document or thing.
16ZZH Offence to obstruct or impersonate
reportable conduct authorised officer
(1) A person must not hinder or obstruct--
(a) a reportable conduct authorised officer
exercising a power under this Part; or
(b) a person who is assisting a reportable
conduct authorised officer exercising a
power under this Part.
Penalty: In the case of a body corporate,
120 penalty units;
In any other case, 30 penalty
units.
(2) A person who is not a reportable conduct
authorised officer must not, in any way, hold
themselves out to be a reportable conduct
authorised officer.
Penalty: 30 penalty units.
Division 3--Notices to produce and
notices to comply
16ZZI Notice to produce
(1) If the Commission reasonably believes that
the head of an entity is not complying with,
or has not complied with, section 16M(1),
the Commission may issue a written notice
requiring the following to produce a
specified document or information before a
specified date (being not less than 14 days
after the day on which the notice is given)--
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(a) the head of the entity;
(b) any other person that the Commission
reasonably believes possesses the
document or information.
(2) A notice under subsection (1) must be in the
prescribed form, if any, and must specify--
(a) the document or category of documents
that must be produced; and
(b) the date by which the document or
category of documents must be
provided; and
(c) the maximum civil penalty payable if
the Magistrates' Court makes a
declaration under section 16ZZL; and
(d) the process for seeking an internal
review of the decision to give a notice
to produce; and
(e) the prescribed matters, if any.
(3) A person given a notice under subsection (1)
must provide each document specified in the
notice to the Commission on or before the
date specified in the notice.
(4) The Commission, by further written notice
given at any time, may vary or revoke a
notice under subsection (1).
16ZZJ Reportable conduct notice to comply
(1) The Commission may give the head of an
entity a notice to comply if the Commission
reasonably believes that the head of the
entity is not complying with section
16M(1)(a) or (b).
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(2) A reportable conduct notice to comply--
(a) must be in the prescribed form (if any);
and
(b) must specify the following--
(i) the reason for the issue of the
notice to comply;
(ii) the grounds for the Commission's
belief that the head of the entity is
not complying with section
16M(1)(a) or (b);
(iii) the action that the head of the
entity is required to take to
address any issues that have been
identified in the notice to comply;
(iv) the date by which the head of the
entity must take the action
specified in the notice to comply,
being not less than 14 days after
the day on which the notice is
given;
(v) the maximum pecuniary penalty
for failing to comply with the
notice;
(vi) the process for seeking a review of
the decision to issue the notice;
(vii) the prescribed matters (if any).
16ZZK Failure to comply with notice to produce
or reportable conduct notice to comply
(1) A person must not, without reasonable
excuse, fail to comply with a notice to
produce.
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Penalty: In the case of a body corporate,
120 penalty units;
In any other case, 60 penalty
units.
(2) The head of an entity must not, without
reasonable excuse, fail to comply with a
reportable conduct notice to comply.
Penalty: In the case of a body corporate,
120 penalty units;
In any other case, 60 penalty
units.
16ZZL Application for a declaration and order to
pay a civil penalty
(1) If a person, without reasonable excuse, fails
to comply with a notice to produce, the
Commission may apply to the Magistrates'
Court for--
(a) a declaration that the person has failed
to comply with the notice; and
(b) an order requiring the person to pay a
civil penalty.
(2) If a head of an entity, without reasonable
excuse, fails to comply with a reportable
conduct notice to comply, the Commission
may apply to the Magistrates' Court for--
(a) a declaration that the head of the entity
has failed to comply with the notice;
and
(b) an order requiring the head of the entity
to pay a civil penalty.
(3) The Magistrates' Court may make the
declaration sought if the court is satisfied
that--
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(a) the person or head of the entity has
failed to comply with the notice to
produce or the reportable conduct
notice to comply (as the case requires);
and
(b) the failure was unreasonable.
(4) If the Magistrates' Court makes a declaration
under subsection (2), the court may order the
person to pay to the Commission for
payment into the Consolidated Fund an
amount not exceeding $9000 as a civil
penalty.
(5) In determining the amount of a civil penalty,
the Magistrates' Court must consider--
(a) the impact of the civil penalty on the
person; and
(b) whether the non-compliance with the
notice to produce or the notice to
comply (as the case requires) was
wilful or serious.
(6) An order made under this section is taken,
for the purposes of enforcement, to be an
order made by the Magistrates' Court in a
civil proceeding.
(7) A civil penalty paid to the Commission in
accordance with an order made under this
section must be paid into the Consolidated
Fund.
16ZZM Infringement notices
(1) A reportable conduct authorised officer may
issue to or serve an infringement notice on
any person or entity that the Commission
reasonably believes has committed a
prescribed offence.
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(2) An offence referred to in subsection (1) for
which an infringement notice may be served
is an infringement offence within the
meaning of the Infringements Act 2006.
(3) The infringement penalty for an offence
referred to in subsection (1) is the prescribed
penalty.
(4) For the purposes of subsection (1), an
infringement notice--
(a) must be in the form required by the
Infringements Act 2006; and
(b) may contain any additional information
approved by the Commission.
16ZZN Pending criminal or civil proceedings
(1) If the Commission applies under section
16ZZL(1) or (2) for a declaration or an order
against a person for failing to comply with a
notice to produce or a reportable conduct
notice to comply, the Commission must not
commence criminal proceedings for a charge
against section 16ZZK(1) or (2) that is
constituted by the failure or alleged failure of
that person to comply with that notice.
(2) Subsection (1) applies whether or not the
court makes a declaration or order in
response to an application under section
16ZZL(1) or (2).
(3) If a person has been convicted or found
guilty of an offence against section 16ZZK,
or a charge against the person for an offence
against section 16ZZK is pending, that is
constituted by the failure or alleged failure of
that person to comply with a notice to
produce or reportable conduct notice to
comply--
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(a) the Commission may not apply under
section 16ZZL(1) or (2) for an order for
the person to pay a pecuniary penalty
for failure to comply with that notice;
and
(b) the court may not order the person to
pay a pecuniary penalty for failure to
comply with that notice.
16ZZO Power to bring a proceeding
(1) A proceeding for an offence against this Part
may be commenced by the Commission or a
police officer.
(2) A proceeding commenced under subsection
(1) may be taken over and continued at any
time by any other person authorised by
subsection (1) to commence proceedings.
(3) In a proceeding for an offence against this
Part, it must be presumed, in the absence of
evidence to the contrary, that the person
commencing the proceeding was authorised
to commence the proceeding.
16ZZP Internal review of decisions to issue
notices under this Part
(1) A person may seek a review by the
Commission of a decision to give a notice to
produce.
(2) The head of an entity may seek a review by
the Commission of a decision to give a
reportable conduct notice to comply.
(3) The Commission must prepare and
implement a process for the review of--
(a) a decision to give a notice to produce;
or
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(b) a decision to give a reportable conduct
notice to comply.
16ZZQ Review by VCAT of decision to give notice
to comply
(1) A head of an entity may apply to VCAT for
review of a decision by the Commission to
give the head of an entity a reportable
conduct notice to comply.
(2) An application for review must be made
within 28 days after the later of--
(a) the day on which the decision is made;
or
(b) if, under the Victorian Civil and
Administrative Tribunal Act 1998,
the head of an entity requests a
statement of reasons for the decision,
the day on which the statement of
reasons is given to the head of the
entity or the head of the entity is
informed under section 46(5) of that
Act that a statement of reasons will not
be given.
(3) Before a head of an entity is entitled to apply
to VCAT for the review of a decision
referred to in subsection (1), the head of the
entity must have exhausted all available
avenues for the internal review of the
decision.
16ZZR Complaints
(1) Any person may complain to the
Commission about the exercise of a power
by a reportable conduct authorised officer
under this Part or a warrant issued under
section 16ZV.
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(2) A complaint to the Commission under
subsection (1) may be made in writing or in
any other form approved by the Commission.
(3) On receiving a complaint under subsection
(1), the Commission must--
(a) investigate the complaint; and
(b) provide a written report to the
complainant and the reportable conduct
authorised officer on the results of the
investigation.
(4) Before finalising a report under subsection
(3), the Commission must--
(a) give the reportable conduct authorised
officer an opportunity to comment on
the proposed report within a period
ending not less than 14 days after the
officer receives the report; and
(b) consider any comments that the officer
provides to the Commission within that
period.".
Division 4--Amendments relating to Child Safe
Standards
31 Power to bring proceedings
(1) In section 29S of the Child Wellbeing and Safety
Act 2005, after "regulator" insert "or a police
officer".
(2) At the end of section 29S of the Child Wellbeing
and Safety Act 2005 insert--
"(2) A proceeding commenced under subsection
(1) may be taken over and continued at any
time by any other person authorised by
subsection (1) to commence proceedings.
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(3) In a proceeding for an offence against this
Part or the regulations, it must be presumed,
in the absence of evidence to the contrary,
that the person commencing the proceeding
was authorised to commence the
proceeding.".
Division 5--Transitional provisions
32 New Division 4 of Part 9 inserted
After section 52 of the Child Wellbeing and
Safety Act 2005 insert--
"Division 4--Transitional
provisions--Children and Health
Legislation Amendment
(Statement of Recognition,
Aboriginal Self-determination and
Other Matters) Act 2023
53 Children and Health Legislation
Amendment (Statement of Recognition,
Aboriginal Self-determination and Other
Matters) Act 2023
This Act as amended by sections 19 and 20
of the Children and Health Legislation
Amendment (Statement of Recognition,
Aboriginal Self-determination and Other
Matters) Act 2023 applies to--
(a) a reportable allegation made in relation
to a person referred to in paragraph
(ba), (bb), (bc) or (bd) of the definition
of employee on and after the
commencement of sections 19 and 20
of that Act, irrespective of when the
conduct that is the subject of the
reportable allegation occurred; and
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(b) a reportable allegation made in relation
to a person referred to in paragraph (e)
of the definition of employee on and
after the day that the class of person to
which that person belongs is prescribed
for the purposes of paragraph (e) of that
definition, irrespective of when the
conduct that is the subject of the
reportable allegation occurred.
54 Transitional regulations--Children and
Health Legislation Amendment
(Statement of Recognition, Aboriginal
Self-determination and Other Matters)
Act 2023
(1) The Governor in Council may make
regulations containing provisions of a
transitional nature, including matters of an
application or savings nature, arising as a
result of the enactment of the Children and
Health Legislation Amendment
(Statement of Recognition, Aboriginal
Self-determination and Other Matters)
Act 2023 (the amending Act).
(2) Regulations made under subsection (1)
may--
(a) have a retrospective effect to a day not
earlier than the day on which the
amending Act receives the Royal
Assent; and
(b) be of limited or general application; and
(c) differ according to time, place and
circumstances; and
(d) confer a discretionary authority on a
specified person or body.
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(3) Regulations referred to in subsection (1)
have effect despite anything to the contrary
in any Act (other than the amending Act or
the Charter of Human Rights and
Responsibilities Act 2006) or in any
subordinate instrument.
(4) This section is repealed on the second
anniversary of the day on which it
commences.".
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Part 5--Amendments relating to judicial registrars
Part 5--Amendments relating to judicial
registrars
Division 1--Amendment of the Children, Youth
and Families Act 2005
33 Recall and cancellation of warrants
In section 529(1) of the Children, Youth and
Families Act 2005--
(a) after "registrar," (where first and secondly
occurring) insert "judicial registrar,";
(b) after paragraph (a) insert--
"(ab) if issued by a judicial registrar, any
other judicial registrar; or".
34 Performance of duties by judicial registrar
After section 542J(3) of the Children, Youth and
Families Act 2005 insert--
"(4) A judicial registrar has any of the powers,
duties and functions of a registrar under this
Act and any other Act or the rules of court.".
35 Rules
After section 588(1AB)(b) of the Children,
Youth and Families Act 2005 insert--
"(ba) providing for a judicial registrar to exercise
any power of a magistrate under this Act
with respect to the issue of a search warrant
for the purpose of having a child placed in
emergency care;".
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Part 5--Amendments relating to judicial registrars
Division 2--Amendment of the Magistrates' Court
Act 1989
36 Performance of duties by judicial registrar
After section 16J(3) of the Magistrates' Court
Act 1989 insert--
"(4) A judicial registrar has any of the powers,
duties and functions of a registrar under this
Act and any other Act or the Rules.".
37 Recall and cancellation of warrant
After section 58(1)(a) of the Magistrates' Court
Act 1989 insert--
"(ab) if issued by a judicial registrar, any other
judicial registrar; or".
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Part 6--Amendment of the Commission for Children and Young People Act
2012
Part 6--Amendment of the Commission for
Children and Young People Act 2012
38 Functions of Commission
After section 8(1)(g) of the Commission for
Children and Young People Act 2012 insert--
"(ga) the functions relating to assisting and
advocating for children and young persons
conferred by Part 4A; and".
39 New Part 4A inserted
After Part 4 of the Commission for Children and
Young People Act 2012 insert--
"Part 4A--Assistance and
advocacy for children and young
persons
30A Definition
In this Part--
protected child or young person means--
(a) a child protection client or a child
or young person who within the
previous 6 months was a child
protection client; or
(b) a child or young person in the care
of an out of home care service or a
child or young person who within
the previous 6 months was in the
care of an out of home care
service; or
(c) a child or young person under the
age of 21 years for whom the
Secretary has had parental
responsibility under the Children,
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and who is of an age, or intends,
to live independently.
30B Commission's functions in relation to
protected children or young persons
(1) The Commission may provide advice,
information and support to a protected child
or young person.
(2) The Commission may advocate for the
safety, welfare, wellbeing and human rights
of a protected child or young person by--
(a) seeking assistance from a department,
institution, welfare organisation or
service provider; and
(b) making representations on behalf of the
child or young person to a department,
institution, welfare organisation or
service provider.
(3) The Commission may perform a function
under subsection (2) if requested to do so by
the protected child or young person, whether
directly or indirectly.
(4) In this section--
human right means a human right protected
by the Charter of Human Rights and
Responsibilities Act 2006.
30C Request for information by the
Commission
(1) The Commission may request the Secretary
to the Department of Families, Fairness and
Housing or an out of home care service to
provide information, documents or records
held by the Secretary or out of home care
service that are reasonably required for the
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performance of the Commission's functions
under section 30B(1) and (2).
(2) The Secretary or out of home care service
may disclose information, documents or
records to the Commission in accordance
with the request, if the Secretary or out of
home care service considers it is reasonably
necessary for the performance of the
Commission's functions under
section 30B(1) and (2).
(3) As soon as reasonably practicable after
receiving the request, the Secretary or out of
home care service must--
(a) if subsection (2) applies, provide the
information, document or record that is
the subject of the request; or
(b) otherwise, advise that the requested
information, document or record will
not be provided.
30D Avoiding unnecessary duplication
If the Commission becomes aware that a
protected child or young person has sought
assistance from any other entity, the
Commission when performing functions
under section 30B must liaise with the other
entity to--
(a) avoid unnecessary duplication of
assistance being provided to the
protected child or young person; and
(b) facilitate the coordination and
expedition of that assistance.".
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Part 7--Consequential amendments relating to the Social Services
Regulation Act 2021
Part 7--Consequential amendments relating
to the Social Services Regulation Act 2021
Division 1--Consequential amendment of the
Children, Youth and Families Act 2005
40 Definitions
In section 3(1) of the Children, Youth and
Families Act 2005--
(a) insert the following definitions--
"registered social service provider has the
same meaning as in section 3(1) of the
Social Services Regulation Act 2021;
social service has the same meaning as in
section 3(1) of the Social Services
Regulation Act 2021;";
(b) the definitions of register of community
services and registered community service
are repealed.
41 Aboriginal agency
In section 6(2)(a) of the Children, Youth and
Families Act 2005, for "registered community"
substitute "community".
42 Recognition principles
In section 7E(11) of the Children, Youth and
Families Act 2005 omit "registered".
43 Responsibilities of the Secretary
Section 16(1)(d) of the Children, Youth and
Families Act 2005 is repealed.
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44 Secretary may authorise person in charge of
community service to act
In section 19(1) of the Children, Youth and
Families Act 2005, for "registered community"
substitute "community".
45 Object of Part
In section 43 of the Children, Youth and
Families Act 2005, for ", registration and
monitoring of" substitute "and operation of".
46 Divisions 3, 4, 5 and 6 of Part 3.3 repealed
Divisions 3, 4, 5 and 6 of Part 3.3 of the
Children, Youth and Families Act 2005 are
repealed.
47 Division heading amended
In the heading to Division 7 of Part 3.3 of the
Children, Youth and Families Act 2005, for
"registered community" substitute
"community".
48 Community services
(1) In the heading to section 72 of the Children,
Youth and Families Act 2005, for
"Registered community" substitute
"Community".
(2) In section 72 of the Children, Youth and
Families Act 2005, for "registered community"
(where twice occurring) substitute "community".
(3) In the note at the foot of section 72 of the
Children, Youth and Families Act 2005, for
"registered community" substitute "community".
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49 Definitions
In section 134 of the Children, Youth and
Families Act 2005, in the definition of service
provider, in paragraph (b), for "a registered"
substitute "an".
50 Definitions
In section 161A of the Children, Youth and
Families Act 2005, for the definition of out of
home carer substitute--
"out of home carer means--
(a) a person who acts as a foster carer for
an out of home care service; or
(b) a person employed or engaged by an
out of home care service--
(i) as a carer for children; or
(ii) as a provider of services to
children at an out of home care
residence managed by the
service.".
51 Disclosure and use of information under this Act
In section 192(1)(e) of the Children, Youth and
Families Act 2005, for "registered community"
substitute "community".
52 Regulations
Section 600(1)(i) of the Children, Youth and
Families Act 2005 is repealed.
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Part 7--Consequential amendments relating to the Social Services
Regulation Act 2021
Division 2--Consequential amendment of the Child
Wellbeing and Safety Act 2005
53 Definitions
In section 3(1) of the Child Wellbeing and
Safety Act 2005, in the definition of employee,
for paragraph (d)(i) substitute--
"(i) a foster carer approved by the provider of an
out of home care service with whom a child
is or has been placed in accordance with the
Children, Youth and Families Act 2005 or
an order made under that Act; or".
54 Disclosure of information about investigations to
children, parents and carers
In section 16ZB(2)(e) of the Child Wellbeing
and Safety Act 2005, for "section 74" substitute
"section 161A".
Division 3--Consequential amendment of the
Children's Services Act 1996
55 Non-application of this Act
For section 5(1)(c) of the Children's Services
Act 1996 substitute--
"(c) recipients of protection, care or
accommodation provided by a community
service within the meaning of the Children,
Youth and Families Act 2005;".
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Part 7--Consequential amendments relating to the Social Services
Regulation Act 2021
Division 4--Consequential amendment of the
Commission for Children and Young People
Act 2012
56 Definitions
In section 3 of the Commission for Children and
Young People Act 2012, the definition of
registered community service is repealed.
57 Vulnerable children and young persons
In section 5(d) and (e) of the Commission for
Children and Young People Act 2012, for
"registered community service" substitute
"community service".
58 Access to information
In section 42(1)(c)(i) and (2) of the Commission
for Children and Young People Act 2012, for
"registered community service" substitute
"community service".
Division 5--Consequential amendment of the
Crimes Act 1958
59 Care, supervision or authority
In section 37(1)(j) of the Crimes Act 1958, for
"section 74" substitute "section 161A".
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Part 8--Amendment of the Health Services Act 1988
Part 8--Amendment of the Health Services
Act 1988
60 New Part 1A inserted
After Part 1 of the Health Services Act 1988
insert--
"Part 1A--Statement of
Recognition and Statement of
Recognition principles
11B Statement of Recognition
(1) The Parliament recognises that Aboriginal
people in Victoria are First Nations people of
Australia and acknowledges their enduring
connection to Country, kin, land and culture.
(2) The Parliament acknowledges the
following--
(a) that Aboriginal self-determination
serves as a foundational principle to
improve health and wellbeing outcomes
of Aboriginal people in Victoria;
(b) the lasting impact of laws, practices and
policies on the health and wellbeing
outcomes of Aboriginal people since
colonisation and enduring to this day;
(c) cultural dislocation, oppression,
intergenerational trauma, lack of
healing, systemic racism,
institutionalised inequality and the loss
of land, lore and language continue to
harm the health and wellbeing of
Aboriginal people in Victoria today;
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(d) the strength of Aboriginal people,
culture, kinship and communities in the
face of historical and ongoing
injustices;
(e) Aboriginal people's ongoing connection
to culture, community and Country and
the importance of this connection for
the health and wellbeing of Aboriginal
people in Victoria.
(3) It is the intention of Parliament that the
health sector recognises, respects and
supports the distinct cultural rights of
Aboriginal people and their right to receive
culturally-safe holistic health care
throughout Victoria.
(4) The Parliament supports initiatives which
address the ongoing health inequalities
experienced by Aboriginal people in
Victoria.
(5) The Parliament recognises the essential role
of Aboriginal community controlled health
organisations in meeting the health,
wellbeing and care needs of Aboriginal
people in Victoria.
(6) The Parliament supports the development of
future reforms which further Aboriginal
self-determination within health services in
Victoria.
11C Acknowledgement of treaty process
The Parliament acknowledges Victoria's
treaty process and the aspiration of
Aboriginal people to achieve increased
autonomy, Aboriginal decision-making and
control of planning, funding and
administration of services for Aboriginal
people, including through self-determined
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Aboriginal representative bodies established
through treaty.
11D Statement of Recognition principles
(1) Aboriginal health and wellbeing extends
beyond physical health, encompassing the
social, emotional and cultural wellbeing of
the whole community in which each
individual is able to achieve their full
potential, thereby supporting the total
wellbeing of the community.
(2) Aboriginal people in Victoria have the right
to self-determination in health care and
wellbeing services.
(3) Delivering culturally-safe health care and
wellbeing services to Aboriginal people is
fundamentally important.
(4) It is essential to partner with Aboriginal
communities, including Aboriginal
community controlled health organisations
and Aboriginal representative groups, to
support the development of health care and
wellbeing services, advance Aboriginal
self-determination and embed cultural safety.
(5) Historic and ongoing biases and racism that
contribute to health inequalities for
Aboriginal people in Victoria are to be
addressed.
(6) Aboriginal community controlled health
organisations play an important and key role
in meeting the health and wellbeing needs of
Aboriginal people in Victoria.
(7) The resources required by Aboriginal
community controlled health organisations to
meet the health and wellbeing needs of
Aboriginal people in Victoria are recognised.
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11E Effect of this Part
(1) The Parliament does not intend by this Part
to affect in any way the interpretation of this
Act or of any other law in force in Victoria.
(2) The Parliament does not intend by this Part
to create in any person any legal right or to
give rise to any civil cause of action, or to
provide any ground for review of an
administrative act or omission.
(3) The Parliament does not intend by this Part
to alter or affect an existing entitlement to
compensation or create an entitlement to
compensation arising from any matter
referred to in section 11B, 11C or 11D.
11F References to Aboriginal people include
Torres Strait Islanders
In this Part, a reference to Aboriginal people
includes a reference to Torres Strait
Islanders.".
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Aboriginal Self-determination and Other Matters) Act 2023
No. of 2023
Part 9--Amendment of the Public Health and Wellbeing Act 2008
Part 9--Amendment of the Public Health
and Wellbeing Act 2008
61 New Part 1A inserted
After Part 1 of the Public Health and Wellbeing
Act 2008 insert--
"Part 1A--Statement of
Recognition and Statement of
Recognition principles
3B Statement of Recognition
(1) The Parliament recognises that Aboriginal
people in Victoria are First Nations people of
Australia and acknowledges their enduring
connection to Country, kin, land and culture.
(2) The Parliament acknowledges the
following--
(a) that Aboriginal self-determination
serves as a foundational principle to
improve health and wellbeing outcomes
of Aboriginal people in Victoria;
(b) the lasting impact of laws, practices and
policies on the health and wellbeing
outcomes of Aboriginal people since
colonisation and enduring to this day;
(c) cultural dislocation, oppression,
intergenerational trauma, lack of
healing, systemic racism,
institutionalised inequality and the loss
of land, lore and language continue to
harm the health and wellbeing of
Aboriginal people in Victoria today;
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Part 9--Amendment of the Public Health and Wellbeing Act 2008
(d) the strength of Aboriginal people,
culture, kinship and communities in the
face of historical and ongoing
injustices;
(e) Aboriginal people's ongoing connection
to culture, community and Country and
the importance of this connection for
the health and wellbeing of Aboriginal
people in Victoria.
(3) It is the intention of Parliament that the
health sector recognises, respects and
supports the distinct cultural rights of
Aboriginal people and their right to receive
culturally-safe holistic health care
throughout Victoria.
(4) The Parliament supports initiatives which
address the ongoing health inequalities
experienced by Aboriginal people in
Victoria.
(5) The Parliament recognises the essential role
of Aboriginal community controlled health
organisations in meeting the health,
wellbeing and care needs of Aboriginal
people in Victoria.
(6) The Parliament supports the development of
future reforms which further Aboriginal
self-determination within health services in
Victoria.
3C Acknowledgement of treaty process
The Parliament acknowledges Victoria's
treaty process and the aspiration of
Aboriginal people to achieve increased
autonomy, Aboriginal decision-making and
control of planning, funding and
administration of services for Aboriginal
people, including through self-determined
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Aboriginal representative bodies established
through treaty.
3D Statement of Recognition principles
(1) Aboriginal health and wellbeing extends
beyond physical health, encompassing the
social, emotional and cultural wellbeing of
the whole community in which each
individual is able to achieve their full
potential, thereby supporting the total
wellbeing of the community.
(2) Aboriginal people in Victoria have the right
to self-determination in health care and
wellbeing services.
(3) Delivering culturally-safe health care and
wellbeing services to Aboriginal people is
fundamentally important.
(4) It is essential to partner with Aboriginal
communities, including Aboriginal
community controlled health organisations
and Aboriginal representative groups, to
support the development of health care and
wellbeing services, advance Aboriginal
self-determination and embed cultural safety.
(5) Historic and ongoing biases and racism that
contribute to health inequalities for
Aboriginal people in Victoria are to be
addressed.
(6) Aboriginal community controlled health
organisations play an important and key role
in meeting the health and wellbeing needs of
Aboriginal people in Victoria.
(7) The resources required by Aboriginal
community controlled health organisations to
meet the health and wellbeing needs of
Aboriginal people in Victoria are recognised.
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Part 9--Amendment of the Public Health and Wellbeing Act 2008
3E Effect of this Part
(1) The Parliament does not intend by this Part
to affect in any way the interpretation of this
Act or of any other law in force in Victoria.
(2) The Parliament does not intend by this Part
to create in any person any legal right or to
give rise to any civil cause of action, or to
provide any ground for review of an
administrative act or omission.
(3) The Parliament does not intend by this Part
to alter or affect an existing entitlement to
compensation or create an entitlement to
compensation arising from any matter
referred to in section 3B, 3C or 3D.
3F References to Aboriginal people include
Torres Strait Islanders
In this Part, a reference to Aboriginal people
includes a reference to Torres Strait
Islanders.".
62 Exemption--early childhood services
For section 143C(1)(d)(i), (ii) and (iii) of the
Public Health and Wellbeing Act 2008
substitute--
"(i) is of Aboriginal or Torres Strait Islander
descent; and
(ii) identifies as an Aboriginal or Torres Strait
Islander person; and
(iii) is accepted as an Aboriginal or Torres Strait
Islander person by an Aboriginal or Torres
Strait Island community; or".
91
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Aboriginal Self-determination and Other Matters) Act 2023
No. of 2023
Part 10--Statute law revision
Part 10--Statute law revision
Division 1--Amendment of the Ambulance Services
Act 1986
63 Statute law revision--Ambulance Services Act 1986
In section 22J(1) of the Ambulance Services
Act 1986--
(a) omit "does not constitute";
(b) in paragraph (a), before "an express" insert
"does not constitute".
Division 2--Amendment of the Children, Youth
and Families Act 2005
64 Statute law revision--Children, Youth and Families
Act 2005
In section 513B of the Children, Youth and
Families Act 2005, for "the the" substitute "the".
Division 3--Amendment of the Commission for
Children and Young People Act 2012
65 Statute law revision--Commission for Children and
Young People Act 2012
(1) In section 3 of the Commission for Children and
Young People Act 2012, in the definition of
Secretary, for "Human Services" substitute
"Families, Fairness and Housing".
(2) In section 42(1)(b)(ii) of the Commission for
Children and Young People Act 2012, for
"Health and Human Services" substitute
"Families, Fairness and Housing".
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Part 10--Statute law revision
Division 4--Amendment of the Health Legislation
Amendment (Quality and Safety) Act 2022
66 Statute law revision--Health Legislation
Amendment (Quality and Safety) Act 2022
In section 33 of the Health Legislation
Amendment (Quality and Safety) Act 2022
omit "on which" (where secondly occurring).
Division 5--Amendment of the Health Services
Act 1988
67 Statute law revision--Health Services Act 1988
(1) In section 117 of the Health Services Act 1988
omit "(1)".
(2) In section 128ZB of the Health Services
Act 1988 omit "(1)".
Division 6--Amendment of the Public Health and
Wellbeing Act 2008
68 Statute law revision--Public Health and Wellbeing
Act 2008
In section 48D(2) of the Public Health and
Wellbeing Act 2008, after "enable" insert "the".
Division 7--Amendment of the Mental Health
Act 2014
69 Statute law revision--Mental Health Act 2014
(1) In section 345A of the Mental Health Act 2014
omit "(1)".
(2) In section 345C(1) of the Mental Health
Act 2014--
(a) omit "does not constitute";
(b) in paragraph (a), before "an express" insert
"does not constitute".
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No. of 2023
Part 10--Statute law revision
Division 8--Amendment of the Social Services
Regulation Act 2021
70 Statute law revision--Social Services Regulation
Act 2021
(1) For section 348(5) of the Social Services
Regulation Act 2021 substitute--
"(5) This Division is repealed 2 years after the
day on which this section commences.".
(2) In section 373(1) of the Social Services
Regulation Act 2021, for "agreements,"
substitute "agreement,".
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No. of 2023
Part 11--Repeal of this Act
Part 11--Repeal of this Act
71 Repeal of this Act
This Act is repealed on 1 July 2025.
Note
The repeal of this Act does not affect the continuing operation of
the amendments made by it (see section 15(1) of the
Interpretation of Legislation Act 1984).
═════════════
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No. of 2023
Endnotes
Endnotes
1 General information
See www.legislation.vic.gov.au for Victorian Bills, Acts and current
authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech--
Legislative Assembly:
Legislative Council:
The long title for the Bill for this Act was "A Bill for an Act to amend the
Children, Youth and Families Act 2005, the Social Services
Regulation Act 2021, the Child Wellbeing and Safety Act 2005, the
Commission for Children and Young People Act 2012, the
Magistrates' Court Act 1989, the Health Services Act 1988 and the
Public Health and Wellbeing Act 2008, to make minor and
consequential amendments to other Acts and for other purposes."
By Authority. Government Printer for the State of Victoria.
96
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