Victorian Bills Victorian Bills[Index] [Search] [Download] [Related Items] [Help]
This is a Bill, not an Act. For current law, see the Acts databases.
Children Legislation Amendment Act 2019
No. of 2019
TABLE OF PROVISIONS
Clause Page
Part 1--Preliminary 1
1 Purposes 1
2 Commencement 4
Part 2--Amendment of Children, Youth and Families Act 2005 5
3 Definitions 5
4 Secretary may authorise principal officer of Aboriginal agency
to act 6
5 Powers and functions of acting principal officer 7
6 Disclosure of information by Secretary to principal officer of
Aboriginal agency 7
7 Identity of reporter or referrer confidential 7
8 Secretary may specify certain issues 8
9 Who is a mandatory reporter? 8
10 Mandatory reporting 8
11 Disclosure and use of information under this Act 9
12 Internal review 9
13 Internal review--decision of principal officer of Aboriginal
agency 9
14 Powers of Secretary in relation to medical services and
operations 9
Part 3--Amendment of Children Legislation Amendment
(Information Sharing) Act 2018 10
15 Definitions 10
Part 4--Amendment of Crimes Act 1958 11
16 Failure to disclose sexual offence committed against child under
the age of 16 years 11
17 New section 636 inserted 11
Part 5--Amendment of Evidence Act 2008 12
18 Religious confessions 12
i
Clause Page
Part 6--Amendment of Privacy and Data Protection Act 2014 13
19 Exemption--information sharing under the Child Wellbeing
and Safety Act 2005 13
Part 7--Amendment of Working with Children Act 2005 14
20 Outcome of application for working with children check 14
21 Determination of re-assessment--category A 14
22 Revocation of assessment notice and surrender of document 14
23 Restriction on right to re-apply for working with children check 14
24 Jurisdiction of VCAT--general 14
25 Jurisdiction of VCAT--category A 15
26 Sex offenders not to apply for assessment notice 15
27 New section 56 inserted 16
28 Schedule 1 amended 16
29 Schedule 3 amended 17
30 Statute law revision amendment 17
Part 8--Amendment of Limitation of Actions Act 1958 18
31 New section 27OA inserted 18
32 New sections 27QA to 27QF inserted 19
33 Provisions as to actions already barred and pending actions 23
34 New section 38C inserted 23
Part 9--Repeal of this Act 25
35 Repeal of this Act 25
═════════════
Endnotes 26
1 General information 26
ii
Children Legislation Amendment
Act 2019
No. of 2019
[Assented to ]
The Parliament of Victoria enacts:
Part 1--Preliminary
1 Purposes
(1) The main purposes of this Act are--
(a) to amend the Children, Youth and Families
Act 2005--
(i) to include persons in religious ministry
as mandatory reporters under that Act;
and
1
Children Legislation Amendment Act 2019
No. of 2019
Part 1--Preliminary
(ii) to clarify that a mandatory reporter is
not able to rely on the religious
confession privilege in the Evidence
Act 2008 to avoid the reporting
requirement imposed by section 184 of
the Children, Youth and Families
Act 2005; and
(b) to amend the Crimes Act 1958 to provide
that information that would be privileged
under the religious confessions privilege in
the Evidence Act 2008 is no longer exempt
for the purposes of section 327; and
(c) to amend the Evidence Act 2008 to provide
that the religious confessions privilege does
not apply in proceedings for an offence
against section 184 of the Children, Youth
and Families Act 2005 or section 327(2) of
the Crimes Act 1958.
(2) The other purposes of this Act are--
(a) to amend the Children, Youth and Families
Act 2005--
(i) to confer powers on the Secretary to
make authorisations in relation to non-
Aboriginal children in certain
circumstances; and
(ii) to amend powers to share information
between the Secretary and community-
based child and family services; and
(iii) to clarify that routine medical care
includes immunisation in certain
circumstances; and
(iv) to clarify the persons who are protected
when disclosing information in good
faith; and
(v) to make other minor amendments; and
2
Children Legislation Amendment Act 2019
No. of 2019
Part 1--Preliminary
(b) to amend the Children Legislation
Amendment (Information Sharing)
Act 2018 in relation to the amendment of a
definition in the Children, Youth and
Families Act 2005; and
(c) to amend the Privacy and Data Protection
Act 2014 to clarify an exemption in relation
to information sharing under the Child
Wellbeing and Safety Act 2005; and
(d) to amend the Working with Children
Act 2005--
(i) to clarify and limit the grounds on
which a person who has been given a
negative notice on a Category A
application or a Category A re-
assessment may apply to VCAT for
review of the negative notice or for an
assessment notice to be given to the
person; and
(ii) to amend Schedule 1 to that Act to
clarify the offences specified as
category A offences; and
(iii) to make minor miscellaneous
amendments to that Act; and
(e) to amend the Limitation of Actions
Act 1958 to allow for certain actions in
relation to death or personal injury arising
from child abuse to be brought despite being
dismissed due to the expiry of a limitation
period or settled prior to the removal of
limitation periods on 1 July 2015 and to
provide for certain judgments and settlement
agreements to be set aside.
3
Children Legislation Amendment Act 2019
No. of 2019
Part 1--Preliminary
2 Commencement
(1) This Act (except sections 3(2), 9 and 10 and
Parts 4, 5 and 7) comes into operation on the day
after the day on which it receives the Royal
Assent.
(2) Subject to subsection (3), sections 3(2), 9 and 10
and Parts 4, 5 and 7 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 September 2020,
it comes into operation on that day.
4
Children Legislation Amendment Act 2019
No. of 2019
Part 2--Amendment of Children, Youth and Families Act 2005
Part 2--Amendment of Children, Youth and
Families Act 2005
3 Definitions
(1) In section 3(1) of the Children, Youth and
Families Act 2005--
(a) insert the following definition--
"pharmacist means a person registered under
the Health Practitioner Regulation
National Law to practice in the
pharmacy profession as a pharmacist
(other than as a student);";
(b) in the definition of major long-term issue,
for paragraphs (c) and (d) substitute--
"(c) the child's health (but does not include
routine medical care, for example
immunisation on the recommendation
of a registered medical practitioner,
nurse, midwife or pharmacist in the
lawful practice of their profession); and
(d) the child's name;".
(2) In section 3(1) of the Children, Youth and
Families Act 2005 insert the following
definitions--
"person in religious ministry means a person
appointed, ordained or otherwise recognised
as a religious or spiritual leader in a religious
institution;
Examples
Church elder, deacon, granthi, imam, religious
minister, monk, nun, pastor, priest, pujari, rabbi,
religious brother or sister and Salvation Army officer.
5
Children Legislation Amendment Act 2019
No. of 2019
Part 2--Amendment of Children, Youth and Families Act 2005
religious institution means an entity that--
(a) operates under the auspices of any
faith; and
(b) provides activities, facilities, programs
or services of any kind through which
adults interact with children;".
4 Secretary may authorise principal officer of
Aboriginal agency to act
(1) For section 18(1) of the Children, Youth and
Families Act 2005 substitute--
"(1) The Secretary may in writing authorise the
principal officer of an Aboriginal agency to
perform specified functions and exercise
specified powers conferred on the Secretary
by or under this Act in relation to a
protection order in respect of--
(a) an Aboriginal child; or
(b) a non-Aboriginal child who is a sibling
of an Aboriginal child subject to an
authorisation under this subsection.".
(2) After section 18(7) of the Children, Youth and
Families Act 2005 insert--
"(8) Despite the revocation of an authorisation in
respect of an Aboriginal child or if a
protection order in respect of the Aboriginal
child is no longer in force, an authorisation
under this section in respect of a non-
Aboriginal child who is a sibling of that
Aboriginal child continues to have effect
until revoked or until a protection order in
respect of the non-Aboriginal child is no
longer in force.".
6
Children Legislation Amendment Act 2019
No. of 2019
Part 2--Amendment of Children, Youth and Families Act 2005
5 Powers and functions of acting principal officer
In section 18A(2) of the Children, Youth and
Families Act 2005, for "the Aboriginal child"
substitute "a child".
6 Disclosure of information by Secretary to principal
officer of Aboriginal agency
In section 18C(4) of the Children, Youth and
Families Act 2005, for "an Aboriginal child"
substitute "a child".
7 Identity of reporter or referrer confidential
(1) In section 41(1) of the Children, Youth and
Families Act 2005 omit "to which the matter is
referred under section 30".
(2) In section 41(1A) of the Children, Youth and
Families Act 2005, for "or that" substitute "or a".
(3) In section 41(2) of the Children, Youth and
Families Act 2005, for "Subsection (1) does"
substitute "Subsections (1) and (1A) do".
(4) After section 41(2) of the Children, Youth and
Families Act 2005 insert--
"(3) To avoid doubt, the name of a person who
made a report or who made a referral may be
shared between--
(a) the Secretary and any community-based
child and family service; and
(b) a community-based child and family
service and any other community-based
child and family service.".
7
Children Legislation Amendment Act 2019
No. of 2019
Part 2--Amendment of Children, Youth and Families Act 2005
8 Secretary may specify certain issues
In section 175A(1) of the Children, Youth and
Families Act 2005, in the example at the foot of
the subsection, for "the child" substitute
"the child, including immunisation on the
recommendation of a registered medical
practitioner, nurse, midwife or pharmacist in the
lawful practice of their profession".
9 Who is a mandatory reporter?
After section 182(1)(e) of the Children, Youth
and Families Act 2005 insert--
"(ea) a person in religious ministry;".
10 Mandatory reporting
(1) After section 184(2) of the Children, Youth and
Families Act 2005 insert--
"(2A) To avoid doubt, a person is not exempt from
the requirement to report under subsection
(1) merely because the information would be
privileged under section 127 of the Evidence
Act 2008.".
(2) After section 184(3) of the Children, Youth and
Families Act 2005 insert--
"(3A) The requirement imposed by subsection (1)
applies to a person in religious ministry,
even if the person's belief was first formed
before the commencement of section 9 of the
Children Legislation Amendment
Act 2019, provided the person continues to
hold that belief on or after that
commencement.".
8
Children Legislation Amendment Act 2019
No. of 2019
Part 2--Amendment of Children, Youth and Families Act 2005
11 Disclosure and use of information under this Act
For section 192(3)(c) of the Children, Youth and
Families Act 2005 substitute--
"(c) without limiting paragraphs (a) and (b), does
not constitute a contravention of--
(i) section 141 of the Health Services
Act 1988; or
(ii) section 346 of the Mental Health
Act 2014; or
(iii) Part 6A of the Child Wellbeing and
Safety Act 2005.".
12 Internal review
In section 331(3) of the Children, Youth and
Families Act 2005, for "an Aboriginal child"
substitute "a child".
13 Internal review--decision of principal officer of
Aboriginal agency
In section 332(1) of the Children, Youth and
Families Act 2005, for "an Aboriginal child"
substitute "a child".
14 Powers of Secretary in relation to medical services
and operations
(1) In section 597(4)(a) of the Children, Youth and
Families Act 2005, for "declared hospital"
substitute "secure welfare service, declared
hospital".
(2) In section 597(4)(a)(i) of the Children, Youth
and Families Act 2005 omit "291(4),".
9
Children Legislation Amendment Act 2019
No. of 2019
Part 3--Amendment of Children Legislation Amendment (Information
Sharing) Act 2018
Part 3--Amendment of Children Legislation
Amendment (Information Sharing) Act 2018
15 Definitions
In section 16 of the Children Legislation
Amendment (Information Sharing) Act 2018,
after "Child Wellbeing and Safety Act 2005"
(where twice occurring) insert "other than a
person or body specified in section 41T of that
Act (whether or not that person or body is
exercising a judicial or quasi-judicial function)".
10
Children Legislation Amendment Act 2019
No. of 2019
Part 4--Amendment of Crimes Act 1958
Part 4--Amendment of Crimes Act 1958
16 Failure to disclose sexual offence committed against
child under the age of 16 years
In section 327(7)(b) of the Crimes Act 1958, after
"Part 3.10" insert "(other than section 127)".
17 New section 636 inserted
After section 635 of the Crimes Act 1958
insert--
"636 Transitional provision--Children
Legislation Amendment Act 2019
(1) The amendment to section 327 of this Act
made by section 16 of the Children
Legislation Amendment Act 2019 applies
to an offence alleged to have been committed
on or after the commencement of that section
of that Act.
(2) For the purposes of subsection (1), if any of
the conduct constituting the offence set out
in section 327(2) of this Act is alleged to
have occurred between 2 dates, one before
and one on or after the commencement of
section 16 of the Children Legislation
Amendment Act 2019, all of the conduct
constituting the offence is taken to have
occurred before that commencement.".
11
Children Legislation Amendment Act 2019
No. of 2019
Part 5--Amendment of Evidence Act 2008
Part 5--Amendment of Evidence Act 2008
18 Religious confessions
For section 127(2) of the Evidence Act 2008
substitute--
"(2) Subsection (1) does not apply--
(a) if the communication involved in the
religious confession was made for a
criminal purpose; or
(b) in a proceeding for an offence against
section 184 of the Children, Youth
and Families Act 2005; or
(c) in a proceeding for an offence against
section 327(2) of the Crimes
Act 1958.".
12
Children Legislation Amendment Act 2019
No. of 2019
Part 6--Amendment of Privacy and Data Protection Act 2014
Part 6--Amendment of Privacy and Data
Protection Act 2014
19 Exemption--information sharing under the Child
Wellbeing and Safety Act 2005
In section 15B(5) of the Privacy and Data
Protection Act 2014, for "collection" (where first
occurring) substitute "collection, use or
disclosure".
13
Children Legislation Amendment Act 2019
No. of 2019
Part 7--Amendment of Working with Children Act 2005
Part 7--Amendment of Working with
Children Act 2005
20 Outcome of application for working with children
check
In section 17(4)(b) of the Working with
Children Act 2005, after "the applicant that"
insert ", in limited circumstances,".
21 Determination of re-assessment--category A
After section 21AB(1)(c) of the Working with
Children Act 2005 insert--
"(ca) the person has become subject to an
emergency detention order; or".
22 Revocation of assessment notice and surrender of
document
In section 21C(3)(b) of the Working with
Children Act 2005, after "the holder that" insert
", in limited circumstances,".
23 Restriction on right to re-apply for working with
children check
After section 25(2)(da) of the Working with
Children Act 2005 insert--
"(db) the person being no longer subject to an
emergency detention order; or".
24 Jurisdiction of VCAT--general
(1) In section 26(1)(a) and (c) of the Working with
Children Act 2005, for "(a), (b) or (c)" substitute
"(a), (b), (c) or (ca)".
(2) In section 26(3) of the Working with Children
Act 2005, for "(a), (b) or (c)" substitute "(a), (b),
(c) or (ca)".
14
Children Legislation Amendment Act 2019
No. of 2019
Part 7--Amendment of Working with Children Act 2005
25 Jurisdiction of VCAT--category A
(1) In section 26A(1) of the Working with Children
Act 2005--
(a) for "A person" substitute "Subject to
subsection (1A), a person";
(b) in paragraphs (a) and (b), for "(a), (b) or (c)"
substitute "(a), (b), (c) or (ca)".
(2) After section 26A(1) of the Working with
Children Act 2005 insert--
"(1A) Despite subsection (1), a person who has
been given a negative notice referred to in
that subsection may not apply to VCAT for
an assessment notice to be given to the
person if the person has at any time been
charged with or convicted or found guilty of
a category A offence and the person was an
adult at the time of the commission or
alleged commission of the offence.
(1B) For the purposes of subsection (1A), if an
offence occurred or is alleged to have
occurred between two dates, one on which
the person was a child and one on which the
person was an adult, the offence is taken to
have occurred when the person was an
adult.".
26 Sex offenders not to apply for assessment notice
(1) In the heading to section 39A of the Working
with Children Act 2005, after "Sex offenders"
insert "and serious offenders".
(2) In section 39A of the Working with Children
Act 2005--
(a) in paragraph (c), for "supervision order."
substitute "supervision order; or";
15
Children Legislation Amendment Act 2019
No. of 2019
Part 7--Amendment of Working with Children Act 2005
(b) after paragraph (c) insert--
"(d) a person subject to an emergency
detention order.".
27 New section 56 inserted
At the end of Part 6 of the Working with
Children Act 2005 insert--
"56 Transitional provision--Children
Legislation Amendment Act 2019
(1) Section 26A as amended by section 25(1)(a)
and (2) of the Children Legislation
Amendment Act 2019 applies to an
application to VCAT made after the
commencement of section 25(1)(a) and (2)
of that Act.
(2) Section 26A as in force immediately before
the commencement of section 25(1)(a) and
(2) of the Children Legislation
Amendment Act 2019 continues to apply to
an application to VCAT that was made but
not finally determined before that
commencement.".
28 Schedule 1 amended
In Schedule 1 to the Working with Children
Act 2005--
(a) in clause 1--
(i) for "7, 8, 9 or 10" substitute "7 or 8";
(ii) after "child" (where secondly
occurring) insert "or, in the case of an
offence of bestiality, against an
animal";
(b) in clauses 9 and 10, for "3" substitute "1, 3".
16
Children Legislation Amendment Act 2019
No. of 2019
Part 7--Amendment of Working with Children Act 2005
29 Schedule 3 amended
In Schedule 3 to the Working with Children
Act 2005, after clause 1.3 insert--
"1.4 An emergency detention order.".
30 Statute law revision amendment
In section 3(1) of the Working with Children
Act 2005, in the definition of Secretary, for
"Department of Justice and Regulation"
substitute "Department of Justice and
Community Safety".
17
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
Part 8--Amendment of Limitation of Actions
Act 1958
31 New section 27OA inserted
After section 27O of the Limitation of Actions
Act 1958 insert--
"27OA Definitions for this Division
In this Division--
previous judgment means a judgment or an
order in a previously barred cause of
action;
previously barred cause of action means a
cause of action to which this Division
applies for which any applicable
limitation period expired before 1 July
2015;
Note
1 July 2015 is the date of the commencement of
the Limitation of Actions Amendment (Child
Abuse) Act 2015.
previously settled cause of action means a
cause of action to which this Division
applies that was settled and given effect
by a settlement agreement before 1 July
2015;
settlement agreement means an agreement
giving effect to the settlement of a
cause of action to which this Division
applies.".
18
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
32 New sections 27QA to 27QF inserted
After section 27Q of the Limitation of Actions
Act 1958 insert--
"27QA Action may be brought on previously
barred cause of action or previously
settled cause of action
(1) An action may be brought on a previously
barred cause of action even if an action on
the cause of action was dismissed--
(a) on the ground that the action was
brought after the expiry of any
applicable limitation period; or
(b) by refusing to extend any applicable
limitation period.
(2) An action may be brought on a previously
settled cause of action.
(3) This section does not apply to--
(a) any deed of release or accepted offer of
redress under the National Redress
Scheme for Institutional Child Sexual
Abuse Act 2018 of the Commonwealth;
or
(b) any settlement that has been taken into
account in any deed of release or
accepted offer of redress under the
National Redress Scheme for
Institutional Child Sexual Abuse
Act 2018 of the Commonwealth.
19
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
27QB Application to court to set aside previous
judgments
(1) This section applies to an action referred to
in section 27QA(1).
(2) In a proceeding to which this section applies,
application may be made to the court for a
previous judgment to be set aside.
(3) A court other than the Supreme Court may
not set aside a previous judgment of another
court.
27QC Court's powers--set aside previous
judgments
(1) On an application under section 27QB or
otherwise in a proceeding on an action
referred to in section 27QA(1), the court, if
satisfied that it is just and reasonable to do
so--
(a) may make an order setting aside the
previous judgment, whether wholly or
in part; and
(b) may make any other order that it
considers appropriate in the
circumstances.
(2) In hearing and determining any action to
which this Division applies in relation to
which there is a previous judgment which
has been set aside, the court, if satisfied that
it is just and reasonable to do so--
(a) when awarding damages in relation to
the action, may take into account any
amounts paid or payable under that
previous judgment; and
20
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
(b) when awarding costs in relation to the
action, may take into account any
amounts paid or payable under that
previous judgment.
27QD Application to court to set aside
previously settled causes of action
(1) This section applies to an action referred to
in section 27QA(2).
(2) In a proceeding to which this section applies,
application may be made to the court for the
settlement agreement and any judgment or
order giving effect to the settlement of the
previously settled cause of action to be set
aside.
(3) A court other than the Supreme Court may
not set aside a judgment or an order of
another court.
27QE Court's powers--previously settled causes
of action
(1) On an application under section 27QD or
otherwise in a proceeding on an action
referred to in section 27QA(2), the court, if
satisfied that it is just and reasonable to do
so--
(a) may make an order setting aside the
settlement agreement and any judgment
or order giving effect to the settlement
of the previously settled cause of
action, whether wholly or in part; and
(b) may make any other order that it
considers appropriate in the
circumstances.
21
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
(2) In hearing and determining any action to
which this Division applies on a previously
settled cause of action, the court, if satisfied
that it is just and reasonable to do so--
(a) when awarding damages in relation to
the action, may take into account any
consideration (whether monetary or
non-monetary) paid, payable or given
or to be given under--
(i) a settlement agreement set aside
under this section; or
(ii) any other agreement related to the
settlement that has been set aside
under this section; and
(b) when awarding costs in relation to the
action, may take into account any
amounts paid or payable as costs
under--
(i) a settlement agreement set aside
under this section; or
(ii) any other agreement related to the
settlement that has been set aside
under this section.
27QF Recovery of amounts under previous
judgment or previous settlement
agreement which is set aside
(1) If the court makes an order under
section 27QC setting aside a previous
judgment (whether wholly or in part), any
person or entity who paid an amount under
that previous judgment is not entitled to seek
to recover the amount on the basis that the
previous judgment has been set aside.
22
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
(2) If the court makes an order under
section 27QE setting aside a settlement
agreement (whether wholly or in part)--
(a) the settlement agreement and any other
agreement related to the settlement
(other than a contract of insurance)
ceases to have effect to the extent
specified in that order; and
(b) in accordance with the terms of that
order, any party to that settlement
agreement and any other agreement
related to the settlement (other than a
contract of insurance) is not entitled to
seek to recover any money paid by, or
for, that party under that settlement
agreement or other agreement.".
33 Provisions as to actions already barred and pending
actions
At the end of section 35 of the Limitation of
Actions Act 1958 insert--
"(2) Subsection (1) does not apply to an action to
which sections 27QA to 27QF, as inserted by
the Children Legislation Amendment
Act 2019, apply.".
34 New section 38C inserted
After section 38B of the Limitation of Actions
Act 1958 insert--
"38C Regulations
(1) The Governor in Council may make
regulations for or with respect to any matter
or thing required to be prescribed by this Act
or necessary to be prescribed to give effect to
this Act.
23
Children Legislation Amendment Act 2019
No. of 2019
Part 8--Amendment of Limitation of Actions Act 1958
(2) The regulations--
(a) may be of general or limited
application; and
(b) may differ according to differences in
time, place or circumstance.".
24
Children Legislation Amendment Act 2019
No. of 2019
Part 9--Repeal of this Act
Part 9--Repeal of this Act
35 Repeal of this Act
This Act is repealed on 1 September 2021.
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).
═════════════
25
Children Legislation Amendment Act 2019
No. of 2019
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 Children Legislation
Amendment (Information Sharing) Act 2018, the Crimes Act 1958,
the Evidence Act 2008, the Privacy and Data Protection Act 2014, the
Working with Children Act 2005 and the Limitation of Actions
Act 1958 and for other purposes."
By Authority. Government Printer for the State of Victoria.
26
[Index] [Search] [Download] [Related Items] [Help]