Children Legislation Amendment (Reportable Conduct) Act 2017
Authorised by the Chief Parliamentary Counsel
Authorised Version
i
Children Legislation Amendment (Reportable
Conduct) Act 2017
No. 4 of 2017
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary 1
1 Purposes 1
2 Commencement 2
3 Principal Act 2
Part 2—Amendment of the Child Wellbeing and Safety Act 2005 3
4 Amendment of purposes 3
5 Definitions 3
6 New Part 5A inserted 8
7 Regulations 37
8 New Part 9 inserted 38
9 New Schedules 3, 4 and 5 inserted 38
Part 3—Amendment of other Acts 42
10 Commission for Children and Young People Act 2012 42
11 Working with Children Act 2005 43
12 Education and Training Reform Act 2006 43
13 Children, Youth and Families Act 2005—consequential
amendments 46
14 New section 132A inserted in Children, Youth and Families
Act 2005 48
15 Disability Act 2006 48
16 Ombudsman Act 1973 49
17 Statute law revision amendments 49
Part 4—Repeal of amending Act 50
18 Repeal of amending Act 50
═══════════════
Endnotes 51
1 General information 51
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Authorised by the Chief Parliamentary Counsel
Authorised Version
1
Children Legislation Amendment
(Reportable Conduct) Act 2017 †
No. 4 of 2017
[Assented to 28 February 2017]
The Parliament of Victoria enacts:
Part 1—Preliminary
1 Purposes
The purposes of this Act are—
(a) to amend the Child Wellbeing and Safety
Act 2005 to establish a scheme which
requires that—
(i) an allegation of reportable conduct, or
misconduct that may involve reportable
conduct, committed by an employee
Victoria
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within or connected to certain entities
be reported by that entity to the
Commission for Children and Young
People for investigation, or oversight of
the investigation, of the allegation; and
(ii) information be shared with the
Commission for Children and Young
People, the head of the relevant entity,
the relevant regulator, Victoria Police,
the Secretary to the Department of
Justice and Regulation and any other
prescribed person or body, as
necessary; and
(iii) the Commission for Children and
Young People administer the
reportable conduct scheme; and
(b) to make consequential and other
amendments to other Acts.
2 Commencement
(1) This Part and section 17 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 to be proclaimed.
(3) If a provision referred to in subsection (2) does
not come into operation before 1 September 2017,
it comes into operation on that day.
3 Principal Act
In this Act, the Child Wellbeing and Safety
Act 2005 is called the Principal Act.
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Part 2—Amendment of the Child Wellbeing
and Safety Act 2005
4 Amendment of purposes
After section 1(f) of the Principal Act insert—
"(fa) to provide for a scheme for the reporting to
the Commission for Children and Young
People of allegations of reportable conduct
or misconduct that may involve reportable
conduct committed by employees within or
connected to certain entities, the oversight
by the Commission of investigations of those
allegations and the administration of the
scheme by the Commission; and".
5 Definitions
(1) In section 3(1) of the Principal Act insert the
following definitions—
"Chief Commissioner of Police means the Chief
Commissioner of Police appointed under
section 17 of the Victoria Police Act 2013;
employee, in relation to an entity to which the
reportable conduct scheme applies, means a
person of or over the age of 18 years who
is—
(a) employed by the entity, whether or not
the person is employed in connection
with any work or activities of the entity
that relate to children; or
(b) engaged by the entity to provide
services, including as a volunteer,
contractor, office holder or officer,
whether or not the person provides
services to children; or
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(c) if the entity is a religious body
(within the meaning of section 81 of
the Equal Opportunity Act 2010)—
a minister of religion, a religious leader
or an employee (within the meaning of
paragraph (a) or (b)) or officer of the
religious body; or
(d) on and after a prescribed date, if the
entity has placed a child in the care of
a foster carer or a person who engages
in child-related work described in
section 9(6) of the Working with
Children Act 2005 and—
(i) a permanent care order has not
been made in respect of the child;
or
(ii) a permanent care order has been
made in respect of the child and a
reportable allegation in relation to
the child is made concerning the
permanent carer in respect of the
period before the making of the
order—
the foster carer of the child or the
person who so engages in child-related
work in relation to the child;
entity to which the reportable conduct scheme
applies means—
(a) on and after the commencement of
Part 5A, an entity referred to in
Schedule 3; and
(b) on and after 6 months after the
commencement of Part 5A, an entity
referred to in Schedule 4; and
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(c) on and after 18 months after the
commencement of Part 5A, an entity
referred to in Schedule 5; and
(d) on and after a prescribed date in
relation to that entity or class of
entities, a prescribed entity or an entity
belonging to a prescribed class of
entities;
head, in relation to an entity to which the
reportable conduct scheme applies, means—
(a) the chief executive officer or principal
officer of the entity; or
(b) if the entity is a Department—
the Secretary to the Department or
the delegate of the Secretary; or
(c) a person, or a person belonging to a
class of persons, prescribed as the
head of an entity;
independent investigator means an independent
body or person with appropriate
qualifications, training or experience to
investigate reportable allegations;
notice to produce, in Part 5A, means a notice
given to an entity under section 16ZG;
permanent care order has the same meaning
as in the Children, Youth and Families
Act 2005;
registered health practitioner has the same
meaning as in the Health Practitioner
Regulation National Law;
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regulator, for the purposes of the reportable
conduct scheme—
(a) in relation to an entity to which the
reportable conduct scheme applies,
means any of the following—
(i) a Department that is responsible
for regulating the entity;
(ii) a Department that provides
funding to the entity;
(iii) the Victorian Registration
and Qualifications Authority
established under section 4.2.1
of the Education and Training
Reform Act 2006 if the entity is
referred to in item 1, 2, 3 or 4 of
Schedule 3;
(iv) any other body—
(A) that regulates or funds the
entity; and
(B) that is prescribed to be a
regulator in respect of the
entity;
(b) in relation to an employee, means any
of the following, as the case requires—
(i) the Suitability Panel established
by section 98 of the Children,
Youth and Families Act 2005;
(ii) the Australian Health Practitioner
Regulation Agency established
by section 23 of the Health
Practitioner Regulation National
Law;
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(iii) a National Health Practitioner
Board established by section 31 of
the Health Practitioner Regulation
National Law;
(iv) the Victorian Institute of Teaching
continued in operation by section
2.6.2 of the Education and
Training Reform Act 2006;
(v) any other body that is prescribed
to be a regulator in respect of the
employee;
reportable allegation means any information that
leads a person to form a reasonable belief
that an employee has committed—
(a) reportable conduct; or
(b) misconduct that may involve
reportable conduct—
whether or not the conduct or misconduct is
alleged to have occurred within the course of
the person's employment;
reportable conduct means—
(a) a sexual offence committed against,
with or in the presence of, a child,
whether or not a criminal proceeding
in relation to the offence has been
commenced or concluded; or
(b) sexual misconduct, committed against,
with or in the presence of, a child; or
(c) physical violence committed against,
with or in the presence of, a child; or
(d) any behaviour that causes significant
emotional or psychological harm to a
child; or
(e) significant neglect of a child;
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reportable conduct scheme means the scheme set
out in Part 5A;
sexual misconduct includes behaviour, physical
contact or speech or other communication of
a sexual nature, inappropriate touching,
grooming behaviour and voyeurism;
sexual offence means an offence referred to in
clause 1 of Schedule 1 to the Sentencing
Act 1991;
significant, in relation to emotional or
psychological harm or neglect, means that
the harm or neglect is more than trivial or
insignificant, but need not be as high as
serious and need not have a lasting
permanent effect;
Victoria Police has the same meaning as in the
Victoria Police Act 2013;
working with children check has the same
meaning as in the Working with Children
Act 2005.".
(2) In section 3(1) of the Principal Act, in the
definition of State contract, for "2012."
substitute "2012;".
6 New Part 5A inserted
After Part 5 of the Principal Act insert—
"Part 5A—Reportable conduct
scheme
16A Definition
In this Part—
entity means an entity to which the
reportable conduct scheme applies.
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16B Principles
(1) The reportable conduct scheme is based on
the fundamental principles that—
(a) the protection of children is the
paramount consideration in the context
of child abuse or employee misconduct
involving a child;
(b) criminal conduct or suspected criminal
conduct should be reported to the
police;
(c) a police investigation into the subject
matter of a reportable allegation has
priority and, unless the investigation
may otherwise be conducted under any
other Act, an investigation under the
reportable conduct scheme must be
suspended or must not be commenced
until the police advise or agree that it
may proceed;
(d) the Commission and others involved in
the reportable conduct scheme should
work in collaboration to ensure the fair,
effective and timely investigation of
reportable allegations;
(e) employees who are the subject of
reportable allegations are entitled to
receive natural justice in investigations
into their conduct;
(f) regulators have specific knowledge
of the roles of the entities or the
professional responsibilities of the
employees they regulate and, if their
functions permit, play an important
role in the investigation of reportable
allegations;
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(g) information should be shared during
and after the conclusion of an
investigation into a reportable
allegation;
(h) after the conclusion of an investigation
into a reportable allegation, the
Commission may share information
with the Department of Justice and
Regulation for the purpose of a working
with children check.
(2) The Commission should educate and
guide—
(a) entities in order to improve their ability
to identify reportable conduct and to
report and investigate reportable
allegations; and
(b) regulators in order to promote
compliance by entities with the
reportable conduct scheme.
16C Application of reportable conduct scheme
The reportable conduct scheme does not
apply to an entity that does not exercise
care, supervision or authority over children,
whether as part of its primary functions or
otherwise.
16D Administration, oversight and monitoring
of scheme
The Commission is responsible for
administering, overseeing and monitoring
the reportable conduct scheme.
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16E Avoiding unnecessary duplication
The Commission must liaise with
regulators—
(a) to avoid unnecessary duplication in
the oversight of the investigation of
reportable allegations; and
(b) to share information and provide advice
and guidance about the protection of
children.
16F Objectives of Commission under this Part
Without limiting any other provision, the
objectives of the Commission under this Part
are—
(a) to improve the ability of entities to
identify reportable conduct and to
report and investigate reportable
allegations; and
(b) to ensure that reportable allegations are
properly investigated; and
(c) to protect children by working with
entities, regulators and other relevant
bodies to prevent reportable conduct
from occurring in entities; and
(d) to share information with the Secretary
to the Department of Justice and
Regulation for the purpose of working
with children checks.
16G Functions of Commission under this Part
The Commission has the following functions
in relation to the reportable conduct
scheme—
(a) to educate and provide advice to
entities in order to assist them to
identify reportable conduct and to
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report and investigate reportable
allegations;
(b) to educate and provide advice to
regulators to promote compliance by
entities with the reportable conduct
scheme;
(c) to oversee the investigation of
reportable allegations;
(d) to investigate reportable allegations
if—
(i) it considers it to be in the public
interest to do so; or
(ii) an entity or regulator will not, or
is unable to, investigate or engage
an independent person or body to
investigate;
(e) if it considers it to be in the public
interest to do so, to investigate whether
reportable allegations have been
inappropriately handled or responded
to by an entity or a regulator;
(f) to make recommendations to entities to
address the findings of investigations
referred to in paragraph (d) or (e);
(g) to exchange information (including
the findings of investigations into
reportable allegations and the reasons
for those findings) with Victoria
Police, regulators, entities and the
Secretary to the Department of Justice
and Regulation;
(h) to monitor the compliance of entities
with the reportable conduct scheme;
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(i) to report to the Minister and to
Parliament on trends in the reporting
and investigation of reportable
allegations and the results of those
investigations;
(j) to perform any other function conferred
on the Commission under this Part.
16H Powers of the Commission
The Commission has all the powers that
are necessary or convenient to perform its
functions under this Part.
16I Exemption by Commission
(1) The Commission, in accordance with the
regulations, if any, may exempt the head of
an entity or a class of entities from—
(a) the requirements of section 16M in
respect of a class or kind of conduct; or
(b) the requirement under section
16M(1)(b) to provide information
to the Commission in respect of a
class or kind of conduct.
(2) The Commission may give an exemption
under subsection (1) if the Commission
considers that—
(a) the entity is competent to
investigate, without the oversight
of the Commission, a reportable
allegation in respect of the class
or kind of conduct to which the
exemption relates; and
(b) the entity has demonstrated
competence in responding to
reportable allegations in respect
of that class or kind of conduct.
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(3) The Commission must—
(a) notify the entity concerned of an
exemption under subsection (1); and
(b) publish the exemption on the
Commission's website.
(4) The head of an entity exempted under
subsection (1)(b), or a regulator of the entity,
that conducts an investigation into conduct
of a class or kind exempted under subsection
(1)(b) must inform the Commission of the
findings, the reasons for the findings and the
action taken in response to those findings as
soon as practicable after the conclusion of
the investigation or within a period agreed
with the Commission.
16J Exemption from whole of scheme
The regulations may prescribe an entity
or a class of entities to be exempt from the
reportable conduct scheme.
16K Head of entity to have systems in place
(1) The head of an entity must ensure that the
entity has in place—
(a) a system for preventing the commission
of reportable conduct by an employee
of the entity within the course of the
person's employment; and
(b) a system for enabling any person,
including an employee of the entity,
to notify the head of the entity of a
reportable allegation of which the
person becomes aware; and
(c) a system for enabling any person,
including an employee of the entity, to
notify the Commission of a reportable
allegation involving the head of the
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entity of which the person becomes
aware; and
(d) a system for investigating and
responding to a reportable allegation
against an employee of the entity.
(2) If requested in writing by the Commission,
an entity must provide to the Commission
any information about a system referred to
in subsection (1).
(3) The Commission, after consulting
with the relevant regulator, may make
recommendations for action to be taken
by an entity and may provide the entity with
any necessary information relating to the
recommendations if a reasonable concern
with a system referred to in subsection (1) is
identified.
16L Disclosure to Commission of reportable
allegation
Any person may disclose a reportable
allegation to the Commission.
16M Head of entity to notify Commission of
reportable allegation
(1) If the head of an entity becomes aware of
a reportable allegation against an employee
of the entity, the head must notify the
Commission in writing of the following—
(a) within 3 business days after becoming
aware of the reportable allegation—
(i) that a reportable allegation has
been made against an employee
of the entity; and
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(ii) the name (including any former
name and alias, if known) and
date of birth, if known, of the
employee concerned; and
(iii) whether Victoria Police has
been contacted about the
reportable allegation; and
(iv) the name, address and telephone
number of the entity; and
(v) the name of the head of the entity;
and
(b) as soon as practicable and within
30 days after becoming aware of
the reportable allegation—
(i) detailed information about the
reportable allegation; and
(ii) whether or not the entity proposes
to take any disciplinary or other
action in relation to the employee
and the reasons why it intends to
take, or not to take, that action;
and
(iii) any written submissions made to
the head of the entity concerning
the reportable allegation that
the employee wished to have
considered in determining what,
if any, disciplinary or other action
should be taken in relation to the
employee.
(2) This section does not apply to the head of
an entity, or an entity belonging to a class of
entities, that the Commission has exempted
under section 16I(1)(a) in respect of a class
or kind or conduct that is the subject of the
reportable allegation.
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(3) Subsection (1)(b) does not apply to the
head of an entity, or an entity belonging to
a class of entities, that the Commission has
exempted under section 16I(1)(b) in respect
of a class or kind of conduct that is the
subject of the reportable allegation.
(4) The head of an entity must not fail, without
reasonable excuse, to comply with
subsection (1).
Penalty: 10 penalty units.
(5) It is a defence to a charge for an offence
against subsection (4) for the person
charged to prove that the person honestly
and reasonably believed that another
person had notified the Commission of the
reportable allegation in accordance with
subsection (1).
16N Head of entity to respond to reportable
allegation
(1) As soon as practicable after the head of
an entity becomes aware of a reportable
allegation against an employee of the entity,
the head must—
(a) investigate the reportable allegation or
permit a regulator, or an independent
investigator engaged by the entity or
regulator, to investigate the reportable
allegation; and
(b) inform the Commission of the identity
of the body or person who will conduct
the investigation.
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(2) If the Commission requests in writing
that the head of the entity provide to the
Commission information or documents
relating to a reportable allegation or an
investigation, the head of the entity must
comply with the request.
(3) As soon as practicable after an investigation
has concluded, the head of the entity must
give the Commission—
(a) a copy of the findings of the
investigation and the reasons
for those findings; and
(b) details of any disciplinary or other
action that the head of the entity
proposes to take in relation to the
employee and the reasons for that
action; and
(c) if the head of the entity does not
propose to take any disciplinary or
other action in relation to the employee,
the reasons why no action is to be
taken.
16O Commission may investigate reportable
allegation
(1) The Commission, of its own motion, may
conduct an investigation concerning a
reportable allegation against an employee
of an entity if the Commission—
(a) receives information about the
reportable allegation from any person;
and
(b) believes on reasonable grounds that
reportable conduct may have been
committed by an employee of the
entity; and
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(c) considers that it is in the public interest
that the Commission investigate the
reportable allegation.
(2) The Commission, of its own motion, may
conduct an investigation concerning a
reportable allegation against an employee of
an entity if the Commission is advised by the
entity or a regulator of the employee that the
entity or regulator will not or is unable to—
(a) investigate the reportable allegation; or
(b) engage an independent investigator to
investigate the reportable allegation.
(3) The Commission, of its own motion or in
response to a complaint, may conduct an
investigation concerning any inappropriate
handling of, or response to, a reportable
allegation by an entity or a regulator if the
Commission considers that it is in the public
interest to do so.
(4) At the conclusion of an investigation by the
Commission and after consultation with the
relevant regulator, the Commission—
(a) must make findings, give
reasons for the findings and make
recommendations, if any, for
action to be taken with respect
to the matter investigated; and
(b) must provide to the entity the findings,
reasons and recommendations, if any,
of the Commission, together with any
necessary information relating to the
recommendations; and
(c) may provide to the regulator the
recommendations of the Commission
for action to be taken by the regulator.
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16P Commission may visit entity
In conducting an investigation under
section 16O, the Commission may visit
the entity in order to—
(a) inspect any document in relation
to the reportable allegation; or
(b) conduct an interview under
section 16Q, 16R or 16S.
16Q Commission may interview employee
Subject to section 16S(2), the Commission
may interview any employee of an entity if
the Commission considers that the employee
may have information about a reportable
allegation.
16R Commission may interview child
(1) The Commission may interview—
(a) a child in relation to whom an
employee of an entity is alleged to
have committed reportable conduct
or misconduct that may involve
reportable conduct; or
(b) a child who is a witness to reportable
conduct or misconduct that may
involve reportable conduct.
(2) The Commission may engage a person
with appropriate qualifications, training or
experience in interviewing child victims of
abuse to conduct an interview on its behalf
under subsection (1).
(3) Before interviewing a child, the interviewer
must consider, and take all reasonable steps
to mitigate, any negative effect that the
interview may have on the child.
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(4) Without limiting subsection (3), the
Commission 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.
16S Commission may interview employee
subject of reportable allegation
(1) The Commission may interview an employee
of an entity who is the subject of a reportable
allegation.
(2) An employee of an entity who is the subject
of a reportable allegation may, but is not
required to, answer any question of, or
provide any information to, the Commission.
16T Commission may obtain information from
Victoria Police
(1) The Commission may request the Chief
Commissioner of Police to provide the
following information in relation to an
employee of an entity who is the subject
of a reportable allegation—
(a) whether Victoria Police is investigating
the reportable allegation;
(b) the result of the investigation as soon as
practicable after its completion.
(2) The Chief Commissioner of Police must
comply with a request under subsection (1)
unless providing the information would be
reasonably likely to prejudice—
(a) the investigation of a breach or
possible breach of the law; or
(b) the enforcement or proper
administration of the law in a
particular instance.
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16U Victoria Police investigation has priority
(1) On becoming aware that a reportable
allegation may involve criminal conduct,
the Commission, an entity, a regulator or
an independent investigator must report
the matter to Victoria Police.
(2) On becoming aware that Victoria Police is
investigating a reportable allegation, the
Commission, an entity, a regulator or an
independent investigator must not commence
or continue to investigate the reportable
allegation under this Part until the Chief
Commissioner of Police—
(a) advises that the police investigation has
been completed; or
(b) agrees that the investigation under this
Part may proceed in consultation with
Victoria Police.
(3) In this section, an investigation by Victoria
Police includes any court proceeding
(including an appeal) arising out of the
investigation.
(4) Nothing in this section affects an
investigation that may otherwise be
conducted under any other Act.
16V Commission may request regulator to
investigate or provide information and
documents
(1) The Commission may request a regulator
of an employee of an entity to investigate
a reportable allegation in respect of the
employee.
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(2) The Commission, by written notice, may
require a regulator of an employee of an
entity to provide to the Commission
information and documents in relation to—
(a) an investigation of a reportable
allegation in respect of the employee
that is being conducted by the
regulator; or
(b) the employee for the purpose of an
investigation of a reportable allegation
in respect of the employee that is being
conducted by the Commission.
(3) A regulator that is given a notice under
subsection (2) must comply with the notice.
16W Commission may monitor regulator's
investigation
The Commission may monitor the progress
of an investigation by a regulator of a
reportable allegation if the Commission
considers it is in the public interest to do so.
16X Regulator may disclose information or
documents to Commission
(1) Despite any law to the contrary, a regulator
may disclose to the Commission any
information or documents for the purpose
of the reportable conduct scheme.
(2) A regulator of an entity must provide to the
Commission any information or documents
requested in writing by the Commission in
relation to—
(a) a reportable allegation; or
(b) the regulator's investigation of a
reportable allegation; or
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(c) the findings, reasons for the findings,
and recommendations of the regulator
made at the conclusion of an
investigation by the regulator.
16Y Disclosure of information or documents
A disclosure of information or documents to
the Commission by any person that is made
in good faith under this Part—
(a) does not for any purpose constitute
unprofessional conduct or a breach of
professional ethics on the part of the
person by whom it is made; and
(b) does not make the person by whom it is
made subject to any liability in respect
of it; and
(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.
16Z Protection against self-incrimination
It is a reasonable excuse for an individual
to refuse or fail to give information or
documents to the Commission in response
to questioning or a request or requirement
under this Part if the giving of the
information or documents would tend to
incriminate the individual.
16ZA Assistance to be provided
An entity or the head of an entity must
ensure that the Commission or an authorised
person is given any assistance in connection
with the reasonable performance of the
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Commission's functions under this Part that
the Commission or the authorised person
reasonably requires.
16ZB Disclosure of information about
investigations to children, parents and
carers
(1) This section applies to the following
information in relation to an investigation
conducted under section 16N or 16O—
(a) information about the progress of the
investigation;
(b) the findings, reasons for the findings
and the recommendations made at the
conclusion of the investigation;
(c) any action taken in response to those
findings.
(2) The Commission, the head of an entity
or a regulator may disclose the information
referred to in subsection (1) to—
(a) the child in relation to whom an
employee of an entity is alleged to
have committed reportable conduct
or misconduct that may involve
reportable conduct; or
(b) a parent (within the meaning of
the Children, Youth and Families
Act 2005) of the child; or
(c) the Secretary to the Department of
Health and Human Services if the
Secretary has parental responsibility
for the child; or
(d) a person who has daily care and control
of the child, whether or not that care
involves custody of the child; or
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(e) if the child is in out of home care
(within the meaning of the Children,
Youth and Families Act 2005), the out
of home carer (within the meaning of
section 74 of that Act) who provides
that care.
(3) Nothing in this section limits any disclosure
that may otherwise be made under any Act
or law.
16ZC Disclosure of information to the
Commission, the head of an entity, a
regulator, Victoria Police and others
(1) This section applies to information in
relation to the following—
(a) a reportable allegation;
(b) a concern that reportable conduct has
been committed;
(c) the investigation of a matter referred to
in paragraph (a) or (b);
(d) the findings, reasons for the findings
and the recommendations made at the
conclusion of the investigation;
(e) the action taken in response to those
findings.
(2) The Commission, the head of an entity and a
regulator may disclose information referred
to in subsection (1) to—
(a) each other; and
(b) the Chief Commissioner of Police; and
(c) if necessary for the purposes of an
investigation, an independent
investigator; and
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(d) if necessary for the purposes of a
working with children check, the
Secretary to the Department of
Justice and Regulation; and
(e) a relevant Minister; and
(f) any other prescribed person or body
in relation to a prescribed matter, or
a prescribed class of matters.
16ZD Commission to notify Secretary after
finding of reportable conduct
(1) Subject to subsection (2), if a finding is
made by the Commission, the head of an
entity or a regulator that an employee of an
entity has committed reportable conduct, the
Commission must notify the Secretary to the
Department of Justice and Regulation of the
following for the purposes of a working with
children check—
(a) the fact that the finding has been made;
(b) the reasons for the finding;
(c) the name (including any former name
and alias, if known) of the employee;
(d) the date of birth (if known) of the
employee.
(2) The Commission may but need not notify the
Secretary to the Department of Justice and
Regulation of a finding that an employee of
an entity has committed reportable conduct
if—
(a) the reportable conduct would be better
addressed through training or
supervision; or
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(b) the finding has already been referred
to the Department of Justice and
Regulation by another person or body;
or
(c) for any other reason it is not
appropriate for the Commission to
give the notification.
16ZE Prohibition on publishing certain
information
(1) A person must not publish, or cause to be
published, any information that would
enable the identification of a person who
has notified the Commission of—
(a) a reportable allegation; or
(b) a concern that reportable conduct has
occurred.
Penalty: In the case of a body corporate,
300 penalty units;
In any other case, 60 penalty units.
(2) A person must not publish, or cause to be
published, any information that would enable
the identification of a child in relation to
whom—
(a) a reportable allegation was made; or
(b) a finding of reportable conduct was
made.
Penalty: In the case of a body corporate,
300 penalty units;
In any other case, 60 penalty units.
(3) Subsections (1) and (2) do not apply to the
publication of information permitted by or
under any other Act.
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(4) In this section—
publish means disseminate or provide access
to the public or a section of the public
by any means, including by—
(a) publication in a book, newspaper,
magazine or other written
publication; or
(b) broadcast by radio or television;
or
(c) public exhibition; or
(d) broadcast or electronic
communication.
16ZF False or misleading information
A person must not in purported compliance
with this Part—
(a) give information or make a statement
that the person knows to be false or
misleading in a material particular; or
(b) produce a document that the person
knows to be false or misleading in a
material particular without indicating
the respect in which it is false or
misleading and, if practicable,
providing correct information.
Penalty: In the case of a body corporate,
100 penalty units;
In any other case, 10 penalty units.
16ZG Notice to produce
(1) This section applies if an entity has not
complied with a written request from the
Commission for information or documents
under this Part.
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(2) If the request is made under section 16K(2)
in relation to a system referred to in
section 16K(1), the Commission may
give notice under subsection (3) if the
Commission believes on reasonable
grounds that the entity does not have
such a system in place.
(3) The Commission, by written notice, may
require an entity to produce a specified
document or category of documents to
the Commission before a specified date
(being not less than 14 days after the day
on which the notice is given).
(4) A notice under subsection (3) 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) if the notice relates to a system referred
to in section 16K(1), the grounds
referred to in subsection (2); and
(d) the maximum civil penalty payable
if the Magistrates' Court makes a
declaration under section 16ZH; and
(e) the process for seeking an internal
review of the decision to give the notice
to produce; and
(f) the prescribed matters, if any.
(5) An entity given a notice under subsection (3)
must provide each document specified in the
notice to the Commission on or before the
date specified in the notice.
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(6) The Commission, by further written notice
given at any time, may vary or revoke a
notice under subsection (3).
16ZH Application for declaration and order that
entity pay a civil penalty
(1) If an entity fails to comply with a notice to
produce, the Commission may apply to the
Magistrates' Court for—
(a) a declaration that the entity has failed to
comply with the notice; and
(b) an order requiring the entity to pay a
civil penalty.
(2) The Magistrates' Court may make the
declaration sought if the court is satisfied
that—
(a) the entity has failed to comply with the
notice to produce; and
(b) the failure was unreasonable.
(3) If the Magistrates' Court makes a declaration
under subsection (2), the court may order the
entity to pay to the Commission for payment
into the Consolidated Fund an amount not
exceeding $9000 as a civil penalty.
(4) In determining the amount of a civil penalty,
the Magistrates' Court must consider—
(a) the size of the entity; and
(b) the impact of the civil penalty on the
entity; and
(c) whether the non-compliance with the
notice to produce was wilful or serious.
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(5) 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.
(6) A civil penalty paid to the Commission in
accordance with an order made under this
section must be paid into the Consolidated
Fund.
16ZI Internal review
(1) An employee of an entity may seek a
review by the Commission of a finding
made at the conclusion of an investigation
under section 16O.
(2) An entity may seek a review by the
Commission of a decision of the
Commission to give a notice to produce.
(3) The Commission must prepare and
implement a process for the review of—
(a) a finding made at the conclusion of an
investigation under section 16O; or
(b) a decision to give a notice to produce.
16ZJ Review by VCAT
(1) An employee of an entity may apply to
VCAT for review of a decision by the
Commission that the employee has
committed reportable conduct.
(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,
an employee of an entity requests a
statement of reasons for the decision,
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the day on which the statement of
reasons is given to the employee or
the employee is informed under
section 46(5) of that Act that a
statement of reasons will not be
given.
(3) Before an employee of an entity is entitled to
apply to VCAT for the review of a decision
referred to in subsection (1), the employee
must have exhausted all available avenues
for the internal review of the decision.
16ZK Service of documents
(1) A document that is authorised or required by
this Part to be served on or given to a person
is served by—
(a) delivering personally a true copy of the
document to the person; or
(b) leaving a true copy of the document for
the person at the person's last known
or usual place of residence or business
with a person who apparently resides or
works there and who apparently is over
the age of 16 years; or
(c) sending a true copy of the document
by post addressed to the person at the
person's last known or usual place of
residence or business.
(2) A document that is authorised or required by
this Part to be served on or given to an entity
that is not a legal person is served by—
(a) delivering personally a true copy of the
document to the head of the entity; or
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(b) leaving a true copy of the document for
the head of the entity at the last known
or usual place of business of the entity
with a person who apparently works
there and who apparently is over the
age of 16 years; or
(c) sending a true copy of the document by
post addressed to the head of the entity
at the last known or usual place of
business of the entity.
Note
The Electronic Transactions (Victoria) Act 2000 applies
to enable a document to be served electronically, including
fax transmission and email, in accordance with that Act.
16ZL Annual reports and other reports
(1) The Commission in its annual report for a
financial year under Part 7 of the Financial
Management Act 1994 must include a
review of the operation of the reportable
conduct scheme during the financial year to
which the annual report relates.
(2) The Commission must give a further report
of the operation of the reportable conduct
scheme to the Minister and the Secretary
to the Department of Health and Human
Services at any time at the request of the
Minister or the Secretary.
(3) A review under subsection (1) or a report
under subsection (2) may include a statement
about trends observed by the Commission in
relation to the reportable conduct scheme.
(4) The Commission must not include in a
review under subsection (1) or a report under
subsection (2)—
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(a) information that identifies a child; or
(b) information from which the identity of
a child can be determined.
(5) Before submitting a report under subsection
(1) or (2) that includes any comment or
opinion that is adverse to an entity, a
regulator or any person, the Commission
must give the entity, regulator or person an
opportunity to comment on the adverse
comment or opinion.
(6) The Commission must give a copy of a
report submitted under subsection (1) or (2)
to any other Minister and the Secretary to
any other Department if the report considers
a matter that is the responsibility of that
Minister or that Secretary.
16ZM Giving a report to Parliament
(1) This section applies if at least 14 days have
elapsed since the persons referred to in
section 16ZL(2) were given a report under
that subsection.
(2) The Commission may give a copy of a report
under section 16ZL(2) to the clerk of each
House of the Parliament.
(3) The clerk of each House of the Parliament
must cause the report to be laid before the
House on—
(a) the day on which it is received; or
(b) the next sitting day of the House.
(4) If the Commission proposes to give the
report to Parliament when neither House of
the Parliament is sitting, the Commission
must—
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(a) give one business day's notice of the
Commission's intention to do so to the
clerk of each House of the Parliament;
and
(b) give the copy of the report to the clerk
of each House of the Parliament on the
day indicated in the notice; and
(c) cause the report to be published by the
Government Printer.
(5) The clerk of a House of the Parliament must
notify each member of the House of the
receipt of a notice under subsection (4)(a) as
soon as practicable after the clerk receives
the notice.
(6) On receiving a copy of the report under
subsection (4)(b), the clerk of the House of
the Parliament must—
(a) as soon as practicable after the report
is received, notify each member of the
House of the receipt of the report and
advise that the report is available on
request; and
(b) give a copy of the report to any member
of the House on request; and
(c) cause the copy of the report to be laid
before the House on the next sitting day
of the House.
(7) A copy of a report that is given to the
clerk of a House of the Parliament under
subsection (2) or (4)(b) is taken to have been
published by order, or under the authority,
of that House.
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16ZN Review of reportable conduct scheme
after 5 years of operation
(1) The Minister must cause a review to be
made of the first 5 years of operation of the
reportable conduct scheme and must cause
a copy of a report of the review to be laid
before each House of Parliament on or
before 1 July 2023.
(2) A review under subsection (1) must include
consideration as to whether the reportable
conduct scheme should be expanded to apply
to any other entities.".
7 Regulations
In section 47(2) of the Principal Act—
(a) in paragraph (a) omit "and";
(b) in paragraph (b), for "circumstances."
substitute "circumstances;";
(c) after paragraph (b) insert—
"(c) confer a discretionary authority or
impose a duty on a specified person or
body or class of persons or bodies;
(d) leave any matter or thing to be from
time to time determined, applied,
dispensed with or regulated by a
specified person;
(e) provide in a specified case or class of
cases for the exemption of persons or
things or a class of persons or things
from any of the provisions of the
regulations whether unconditionally
or on specified conditions and either
wholly or to any extent that is
specified.".
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8 New Part 9 inserted
After Part 8 of the Principal Act insert—
"Part 9—Transitional provisions
48 Children Legislation Amendment
(Reportable Conduct) Act 2017
This Act as amended by Part 2 of the
Children Legislation Amendment
(Reportable Conduct) Act 2017 applies
to a reportable allegation made on or after
the commencement of Part 2 of that Act,
irrespective of when the conduct that is
the subject of the reportable allegation
occurred.".
9 New Schedules 3, 4 and 5 inserted
After Schedule 2 to the Principal Act insert—
"Schedule 3—Entities to which the
reportable conduct scheme applies
on and after commencement of
Part 5A
1 An applicable entity that operates a registered
school within the meaning of the Education and
Training Reform Act 2006.
2 An applicable entity registered under Division 3
of Part 4.3 of the Education and Training
Reform Act 2006 in respect of an accredited
senior secondary course or registered senior
secondary qualification.
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3 An applicable entity that is approved, under
section 4.5.1 of the Education and Training
Reform Act 2006, to provide a specified course
to students from overseas.
4 An applicable entity that is approved, under
section 4.5A.1 of the Education and Training
Reform Act 2006, as suitable to operate a student
exchange program.
5 A disability service provider within the
meaning of the Disability Act 2006 that
provides residential services for children with
a disability within the meaning of that Act.
6 A mental health service provider within the
meaning of the Mental Health Act 2014 that
provides in-patient beds.
7 An applicable entity that receives funding under a
State contract to provide drug or alcohol treatment
services that provides in-patient beds.
8 An applicable entity that receives funding under
a State contract to provide housing services or
other assistance to homeless persons that provides
overnight beds for persons under the age of
18 years.
9 An applicable entity that receives funding under a
State contract to provide child protection services.
10 An out of home care service within the meaning
of the Children, Youth and Families Act 2005.
11 A Department within the meaning of the Public
Administration Act 2004.
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Schedule 4—Entities to which the
reportable conduct scheme applies
6 months after commencement of
Part 5A
1 An entity referred to in Schedule 3.
2 A religious body within the meaning of
section 81 of the Equal Opportunity
Act 2010.
3 An applicable entity that operates a
residential facility for a boarding school.
4 An applicable entity that provides overnight
camps for children as part of its primary
activity and that is not a youth
organisation—
(a) in which children participate; or
(b) that provides activities in which
children participate.
5 A hospital listed in Schedule 1 to the Health
Services Act 1988 as a public hospital.
6 A hospital listed in Schedule 2 to the Health
Services Act 1988 as a denominational
hospital.
7 An applicable entity that operates a private
hospital within the meaning of the Health
Services Act 1988.
8 A disability service provider within the
meaning of the Disability Act 2006 not
referred to in Schedule 3.
9 An applicable entity, other than a disability
service provider within the meaning of the
Disability Act 2006, that provides disability
services.
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Schedule 5—Entities to which the
reportable conduct scheme applies
18 months after commencement of
Part 5A
1 An entity referred to in Schedule 3.
2 An entity referred to in Schedule 4.
3 An approved provider within the meaning
of the Education and Care Services National
Law (Victoria).
4 A children's service within the meaning of
the Children's Services Act 1996.
5 A prescribed applicable entity that is
constituted by or under any Act and that
has functions of a public nature.".
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Part 3—Amendment of other Acts
10 Commission for Children and Young People
Act 2012
In the Commission for Children and Young
People Act 2012—
(a) after section 20(3)(a) insert—
"(ab) the power to decide whether to conduct
an investigation under section 16O
of the Child Wellbeing and Safety
Act 2005;";
(b) after section 20(3)(b) insert—
"(ba) the power to give a report to Parliament
under section 16ZM of the Child
Wellbeing and Safety Act 2005;";
(c) in section 22(1) omit "written";
(d) in section 22(4)(b), for "2005." substitute
"2005;";
(e) after section 22(4)(b) insert—
"(c) making an application to the
Magistrates' Court under section 16ZH
of the Child Wellbeing and Safety
Act 2005.";
(f) in section 54, for the definition of protected
information substitute—
"protected information means information
acquired by a relevant person under
this Act or under Part 5A of the Child
Wellbeing and Safety Act 2005 by
reason of being a relevant person;";
(g) in section 54, in the definition of relevant
person, before paragraph (a) insert—
"(aa) the Principal Commissioner;";
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(h) in section 55(b), after "this Act" insert
"or under any other Act";
(i) in section 60, after "this Act" insert
"or under any other Act".
11 Working with Children Act 2005
(1) In section 14(1)(a)(i) of the Working with
Children Act 2005, after "on behalf of,"
insert "or referred to the Secretary by,".
(2) In section 21AD(1)(a)(i) of the Working
with Children Act 2005, after "on behalf of,"
insert "or referred to the Secretary by,".
(3) After section 40(2)(a)(iii) of the Working with
Children Act 2005 insert—
"(iv) to the Commission for Children and Young
People (established by section 6 of the
Commission for Children and Young
People Act 2012) for the purposes of an
investigation of a reportable allegation under
Part 5A of the Child Wellbeing and Safety
Act 2005; or".
12 Education and Training Reform Act 2006
(1) In section 2.6.7(3A) of the Education and
Training Reform Act 2006—
(a) in paragraph (b), for "applicant." substitute
"applicant; and";
(b) after paragraph (b) insert—
"(c) may have regard to a finding, under
Part 5A of the Child Wellbeing and
Safety Act 2005, that the applicant has
committed reportable conduct and the
reasons for the finding.".
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(2) After section 2.6.9(2)(c) of the Education and
Training Reform Act 2006 insert—
"(ca) that the applicant has been found, under
Part 5A of the Child Wellbeing and Safety
Act 2005, to have committed reportable
conduct;".
(3) In section 2.6.12A(6) of the Education and
Training Reform Act 2006—
(a) in paragraph (b), for "applicant." substitute
"applicant; and";
(b) after paragraph (b) insert—
"(c) may have regard to a finding, under
Part 5A of the Child Wellbeing and
Safety Act 2005, that the applicant has
committed reportable conduct and the
reasons for the finding.".
(4) In section 2.6.12B(3) of the Education and
Training Reform Act 2006—
(a) in paragraph (b), for "2.6.7(4)." substitute
"2.6.7(4); and";
(b) after paragraph (b) insert—
"(c) may take into account a finding, under
Part 5A of the Child Wellbeing and
Safety Act 2005, that the applicant has
committed reportable conduct.".
(5) After section 2.6.12D(2)(c) of the Education and
Training Reform Act 2006 insert—
"(ca) that the applicant has been found, under
Part 5A of the Child Wellbeing and Safety
Act 2005, to have committed reportable
conduct;".
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(6) In section 2.6.13(2B) of the Education and
Training Reform Act 2006—
(a) in paragraph (b), for "applicant." substitute
"applicant; and";
(b) after paragraph (b) insert—
"(c) may have regard to a finding, under
Part 5A of the Child Wellbeing and
Safety Act 2005, that the applicant has
committed reportable conduct and the
reasons for the finding.".
(7) In section 2.6.13A(3) of the Education and
Training Reform Act 2006—
(a) in paragraph (b), for "2.6.12A(7)."
substitute "2.6.12A(7); and";
(b) after paragraph (b) insert—
"(c) may take into account a finding, under
Part 5A of the Child Wellbeing and
Safety Act 2005, that the applicant has
committed reportable conduct and the
reasons for the finding.".
(8) After section 2.6.18(1D) of the Education and
Training Reform Act 2006 insert—
"(1E) In considering an application for renewal
of registration, the Institute may have regard
to a finding, under Part 5A of the Child
Wellbeing and Safety Act 2005, that the
applicant has committed reportable conduct
and the reasons for the finding.".
(9) After section 2.6.31(4) of the Education and
Training Reform Act 2006 insert—
"(5) The Commission for Children and Young
People (established by section 6 of the
Commission for Children and Young
People Act 2012) must immediately notify
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the Institute if the Commission becomes
aware that a registered teacher is the subject
of a reportable allegation or a finding of
reportable conduct under Part 5A of the
Child Wellbeing and Safety Act 2005.".
13 Children, Youth and Families Act 2005—
consequential amendments
(1) In section 74 of the Children, Youth and
Families Act 2005 insert the following
definition—
"Commission for Children and Young People
means the Commission for Children and
Young People established by section 6 of
the Commission for Children and Young
People Act 2012;".
(2) In section 104(3) of the Children, Youth
and Families Act 2005, after "served" insert
"in accordance with section 593".
(3) In section 107(1) of the Children, Youth and
Families Act 2005—
(a) after "Secretary" insert "and the
Commission for Children and Young
People"; and
(b) after "allegation" insert "and may provide
reasons for the findings and determinations".
(4) In section 107(2) of the Children, Youth and
Families Act 2005, after "disqualified" insert
"and may provide reasons for the finding".
(5) In section 107(3) of the Children, Youth
and Families Act 2005, after "allegation"
(where secondly occurring) insert "and reasons,
if any,".
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(6) In section 113(1) of the Children, Youth and
Families Act 2005—
(a) after "Secretary" insert "and the
Commission for Children and Young
People"; and
(b) after "Division" insert "and may provide
reasons for the determination".
(7) In section 113(2) of the Children, Youth
and Families Act 2005, after "removed" insert
"and may provide reasons for the finding".
(8) In section 113(3) of the Children, Youth
and Families Act 2005, after "determination"
(where first occurring) insert "and reasons, if
any,".
(9) At the end of section 125 of the Children, Youth
and Families Act 2005 insert—
"(2) The Secretary may disclose to the
Commission for Children and Young People
the matters referred to in subsection (1)(a),
(b) and (c) if the allegation to be investigated
is a reportable allegation within the meaning
of Part 5A of the Child Wellbeing and
Safety Act 2005.".
(10) In section 130 of the Children, Youth and
Families Act 2005, for "or the Suitability Panel"
substitute ", the Suitability Panel or, if the
investigation relates to a reportable allegation,
the Commission for Children and Young People".
(11) At the end of section 130 of the Children, Youth
and Families Act 2005 insert—
"(2) In this section, reportable allegation has the
same meaning as in the Child Wellbeing
and Safety Act 2005.".
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14 New section 132A inserted in Children, Youth and
Families Act 2005
After section 132 of the Children, Youth and
Families Act 2005 insert—
"132A Immunity
(1) A member of the Suitability Panel is not
personally liable for anything done or
omitted to be done in good faith—
(a) in the exercise of a power or the
discharge of a duty under this Act; or
(b) in the reasonable belief that the act or
omission was in the exercise of a power
or the discharge of a duty under this
Act.
(2) Any liability resulting from an act or
omission that would, but for subsection (1),
attach to a member of the Suitability Panel
attaches instead to the Crown.".
15 Disability Act 2006
(1) After section 39(4)(k) of the Disability Act 2006
insert—
"(ka) to the Commission for Children and Young
People (established by section 6 of the
Commission for Children and Young
People Act 2012) if the information is a
reportable allegation within the meaning of
the Child Wellbeing and Safety Act 2005;".
(2) In section 128(1)(a) of the Disability Act 2006,
after "under this Act" insert "or any other Act".
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16 Ombudsman Act 1973
In Schedule 3 to the Ombudsman Act 1973, after
item 2 insert—
"2A The Commission for Children and Young
People".
17 Statute law revision amendments
(1) In the Education and Training Reform
Act 2006—
(a) in section 4.3.16(2A)(b)(iii), for
"Fair Trading Act 1999" substitute
"Australian Consumer Law and Fair
Trading Act 2012";
(b) in section 4.3.21(3)(e)(iii), for
"Fair Trading Act 1999" substitute
"Australian Consumer Law and Fair
Trading Act 2012";
(c) in section 4.3.47(1)(g)(ii), for "Department"
substitute "department";
(d) in section 4.9.4(1AA), for "Department"
substitute "department";
(e) in section 4.9.4(3), in paragraph (g) of the
definition of prescribed person or body, for
"Department" substitute "department";
(f) in section 5.5.26(1)(c), for "Department"
substitute "department";
(g) in clause 1.8(c) of Schedule 8, for
"government and non-government"
substitute "Government and
non-Government".
(2) Section 19(1)(b) of the Children, Youth and
Families Act 2005 is repealed.
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Part 4—Repeal of amending Act
18 Repeal of amending Act
This Act is repealed on 1 September 2018.
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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Endnotes
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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: 7 December 2016
Legislative Council: 9 February 2017
The long title for the Bill for this Act was "A Bill for an Act to amend
the Child Wellbeing and Safety Act 2005 to establish a reportable
conduct scheme, to make consequential and other amendments to the
Commission for Children and Young People Act 2012, the Working
with Children Act 2005, the Education and Training Reform
Act 2006, the Children, Youth and Families Act 2005, the Disability
Act 2006 and the Ombudsman Act 1973 and for other purposes."
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