Vic Bill to Ensure Compliance to Child Safety Standards
Tuesday 11 May 2021 @ 12.40 p.m. | Legal Research
On 4 May 2021, the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Bill 2021 (Vic) (‘the Bill’) was introduced to the Victorian Legislative Assembly by the Minister for Protection Luke Donnellan (‘the Minister’). The Bill is yet to pass the lower house.
Purpose of the Bill
The Bill intends to implement the recommendations of the 2019 Review of the Victorian Child Safe Standards (‘the Review’). According to the Minister's second reading speech, the Review proposed 15 recommendations, which were all accepted by government, including to:
- "improve regulatory oversight and clarity of regulator’s functions
- provide regulators with a contemporary, graduated set of regulatory powers to monitor and enforce compliance with the Standards
- improve information sharing between regulators to allow regulators to coordinate regulatory activity and share intelligence, to better identify risks to children and young people and to inform educational activities
- provide the Commission for Children and Young People with critical state-wide leadership and capacity building functions."
The Bill proposes to amend the Child Wellbeing and Safety Act 2005 (Vic) and the Education and Training Reform Act 2006 (Vic).
Monitoring and Enforcement Powers for Compliance
The Bill proposes to introduce new powers for regulators to promote compliance with standards. For less serious non-compliance, the Bill seeks to allow the Commission for Children and Young People ('the Commission') and sector regulators to issue official warnings and infringement notices.
Under the Bill, an official warning would be issued where the regulator suspects the person, body or relevant entity is failing or has failed to comply with:
- a notice to produce,
- a notice to comply,
- the Victorian Child Safe Standards ('the Standards'), or
- is committing or has committed an offence against Part 6 of the Child Wellbeing and Safety Act 2005 (Vic), except for an offence under Division 4.
In comparison, an infringement notice would be issued where the regulator reasonably believes the relevant entity, person or body has committed an offence prescribed in the regulations.
The Bill also seeks to provide various compliance powers and mechanisms for more serious breaches. Firstly, to allow regulators to accept enforceable undertakings from entities they regulate in connection with a failure to comply with the Standards or a notice to comply, or where regulators reasonably suspect that the entity has failed to comply with the Standards. An enforceable undertaking is an agreement between the regulator and the relevant entity that acknowledges non-compliance and outlines actions that the entity is obliged to take to remedy the failure and ensure compliance in the future. If passed, the Bill provides that a regulator would be able to apply to a magistrate for to compel action on an enforcement undertaking. Where an entity fails to comply with such a court order, the regulator would be able to publish details of non-compliance.
Secondly, the Bill seeks to also allow regulators to issue a notice to comply where the regulator believes that an entity is not complying with the Standards. A failure to comply with a notice would allow the regulator to apply to the court for a variety of remedies including a declaration of non-compliance, a pecuniary penalty, or an injunction.
The Bill also proposes to grant the Commission and regulators power to enter and inspect certain premises without an entities’ consent in limited circumstances. Regarding the proportionality of these powers, the Bill's explanatory memorandum states:
"To ensure these powers are proportionate and appropriately targeted, numerous safeguards are proposed including that inspections only take place in business hours unless permitted under a warrant, and where the regulator reasonably believes the Act or the Standards have been contravened."
The Bill also proposes several other amendments to satisfy the other recommendations of the Review including:
- introducing a mechanism that clearly identifies the regulator for each sector that is subject to the Standards and articulating regulators’ functions in relation to the Standards,
- facilitating improved information sharing between regulators,
- providing the Commission with additional state-wide leadership and capacity building functions, to promote compliance and consistent child safety outcomes across sectors, and
- Providing protections for members of the public, such as parents and staff, who report child safety concerns in good faith to regulators.
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Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Bill 2021 (Vic), second reading speech and explanatory materials available on the TimeBase's LawOne Service