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The Children Legislation Amendment (Information Sharing) Act 2018 (VIC)

The Children Legislation Amendment (Information Sharing) Act 2018 (VIC)

Published on February 1, 2019 by Charles HarrisonCharles Harrison

Further to our article published on 13 March 2018, the Children Legislation Amendment (Information Sharing) Act 2018 (VIC) is now the law of the land in Victoria.

Whilst some parts of the Act are yet to commence, an important feature of the Act is the creation of the Child Information Sharing Scheme (CIS Scheme) which commenced on 3 September 2018 for a first phase of organisations. The CIS Scheme provides for information sharing between authorised and trained professionals and organisations to promote the wellbeing and safety of children.

Health and social services providers, education providers, and Government/Regulatory departments and bodies who are involved with children in Victoria should be aware of the CIS Scheme.

There are also a number of relevant resources that have been published by the State Government and these are accessible here.

Legislative basis of the CIS Scheme

The legislative basis for the CIS is found in Part 6A of the Child Wellbeing and Safety Act 2005 (VIC) (CWSA).

Organisations and services prescribed as Information Sharing Entities (ISE) by the Child Wellbeing and Safety (Information Sharing) Regulations 2018 are permitted to share “confidential information” under the CIP Scheme.

It should be noted that the CIS Scheme operates alongside a raft of other information sharing systems and processes provided for by other legislation, including but not limited to the Privacy and Data Protection Act 2014 (VIC), Youth and Families Act (VIC), and ‘Failure to Disclose offences’ under the Crimes Act 1958 (VIC).

Holistic approach with combating family violence

The CIS Scheme complements the Family Violence Information Sharing (FVISS) Scheme and the Family Violence Multi-Agency Risk Assessment and Management Framework (MARAM). The three inter-related reforms are aimed to apply in a cohesive way to respond to a range of wellbeing and safety needs and risks for children, families and other people, including those experiencing family violence.

A list of the prescribed organisations under all three schemes can be viewed here.

It should be noted that additional entities from the justice, education, human services, and health sectors are likely to be prescribed under all three schemes from 2010.

Who or what is an ISE?

In broad terms, an individual or organisation is regarded as an ISE if it satisfies the following thresholds:

  1. ISE must form a view that the request or disclosure is for the purpose of promoting the wellbeing or safety of a child or children;
  2. ISE must form a reasonable belief that sharing the information may assist the receiving entity to carry out certain activities regarding a child or children including making decisions, conducting investigations, and managing risks;
  3. The relevant information is not “excluded information” as defined in s41Q of the CWSA (this includes, for example, information that could be reasonably expected to endanger a person’s life).

What ISE’s need to know?

If the above thresholds under the Act ae satisfied, an ISE may request certain information from another information sharing entity, must disclose relevant information to another ISE if requested, and may disclose information proactively to other ISE’s.

All Victorian children and young people up to the age of 18 are covered by the scheme.

ISE’s need to also be aware of their obligations in relation to record keeping and information management, including the requirement to keep accurate and complete records about information sharing, noting when a request is received, noting when a request is denied, and general measures to protect the security of such information.

What happens if an ISE breaches the CIS Scheme?

Generally an individual who acts in good faith and with reasonable care when sharing information will not be held liable for any criminal, civil, or disciplinary action.

The situation is different for organisations or body corporates or for individuals who intentionally or recklessly disclose applicable information.

Significant penalties for organisations or body corporates and individuals who are found to be in breach of the CIS Scheme can flow.

Summary

The CIS Scheme is a significant reform and, like all big reforms, will feel its way whilst affected organisations and entities come on board and comply with its requirements (in addition to providing feedback as to what is working and what is not working).

In the immediate to short term, it will be necessary for prescribed ISE’s to have appropriate processes and systems in place to ensure compliance with the CIS Scheme.

If you require any further information in respect of the CIS Scheme or any assistance generally as safeguarding and reporting requirements involving children, please contact Carroll & O’Dea Lawyers.

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