Health and Child Wellbeing Legislation Amendment Act 2018 (Vic)
Health and Child Wellbeing Legislation Amendment Act 2018
No. 4 of 2018
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
Part 2—Amendment of the Child Wellbeing and Safety Act 2005
3Definitions
4Exemption from whole of scheme
5Head of entity to respond to reportable allegation
6Disclosure of information to the Commission, the head of an entity, a regulator, Victoria Police and others
7New section 16ZJA inserted
8Minister may make Child Safe Standards
9Category 1 and 2 entities must comply with Child Safe Standards
10Prescribed applicable entity must comply with Child Safe Standards
11Applicable entity belonging to a prescribed class must comply with Child Safe Standards
12Exemption from requirement to comply with Child Safe Standards
13Application of Child Safe Standards to businesses not carried on by applicable entities
14Schedule 1—Category 1 entities
15Schedule 2—Category 2 entities
Part 3—Amendment of the Public Health and Wellbeing Act 2008
16Definitions
17New section 3A inserted
18New Division 3A of Part 8 inserted
19Application of sections 143B, 143C and 143D
20Section 143B substituted
21New section 143E inserted
22Sections 147 and 148 substituted
23New section 149A inserted
24Management and control of infectious disease, micro-organisms and medical conditions
Part 4—Amendment of the Health Complaints Act 2016
25Power to delegate
26Protection from liability for Commissioner and Assistant Commissioners
27New section 156A inserted
Part 5—Consequential amendment and repeal of amending Act
28Health Legislation Amendment (Quality and Safety) Act 2017
29Repeal of amending Act
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Endnotes
1 General information
Health and Child Wellbeing Legislation Amendment Act 2018
No. 4 of 2018
[Assented to 27 February 2018]
The Parliament of Victoria enacts:
Part 1—Preliminary
1Purposes
The purposes of this Act are—
(a)to make miscellaneous technical amendments to the Child Wellbeing and Safety Act 2005 in relation to the reportable conduct scheme and the operation of the Child Safe Standards; and
(b)to amend the Public Health and Wellbeing Act 2008—
(i)to align more closely the immunisation requirements under that Act with those under the Commonwealth immunisation scheme; and
(ii)to clarify what constitutes an immunisation status certificate; and
(iii)to require up to date immunisation status certificates to be provided to early childhood services; and
(iv)to require certain bodies to notify the Secretary about persons presenting with anaphylaxis; and
(c)to amend the Health Complaints Act 2016 to provide that the Commissioner, a person acting as the Commissioner and any police officers may bring proceedings for offences under that Act; and
(d)to repeal sections 95 and 96 of the Health Legislation Amendment (Quality and Safety) Act 2017.
2Commencement
(1)This Act (except sections 3(2), 8, 9, 10, 11, 12(1), 13, 14, 15, 18, 19, 21 and 24) comes into operation on the day after the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), sections 3(2), 8, 9, 10, 11, 12(1), 13, 14, 15, 18, 19, 21 and 24 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 November 2018, it comes into operation on that day.
Part 2—Amendment of the Child Wellbeing and Safety Act 2005
3Definitions
(1)In section 3(1) of the Child Wellbeing and Safety Act 2005—
(a)in the definition of applicable entity, in paragraph (c)(ii), after "facilities" insert "or in producing or providing goods";
(b)in the definition of employee, for paragraph (d) substitute—
"(d)either—
(i)a foster carer approved by the entity under section 75 of the Children, Youth and Families Act 2005 with whom a child is or has been placed under that Act or in accordance with an order made under that Act; or
(ii)a family member or other person of significance to a child with whom the child is or has been placed in out of home care, or who is supervised in that care, by the entity, or the head of the entity, under the Children, Youth and Families Act 2005 or in accordance with an order made under that Act—
and—
(iii)a permanent care order has not been made in respect of the child; or
(iv)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;";
(c)for the definition of head substitute—
"head, in relation to an entity to which the reportable conduct scheme applies, means—
(a)if the entity is a Department, the Secretary to the Department or the delegate of the Secretary; or
(b)if the regulations prescribe a person or a class of persons as the head of an entity, the prescribed person or a person belonging to the prescribed class of persons; or
(c)in any other case—
(i)the chief executive officer of the entity (however described); or
(ii)if there is no chief executive officer, the principal officer of the entity (however described); or
(iii)if there is no chief executive officer or principal officer, a person, or the holder of a position, in the entity nominated by the entity and approved by the Commission;".
(2)In section 3(1) of the Child Wellbeing and Safety Act 2005—
(a)in the definition of category 1 entity omit "applicable";
(b)in the definition of category 2 entity omit "applicable";
(c)in the definition of relevant entity, in paragraph (a) omit "applicable".
(3)For section 3(2) of the Child Wellbeing and Safety Act 2005 substitute—
"(2)A reference in this Act to the provision
of a service or facility or the production or provision of goods by a category 1 entity, category 2 entity or applicable entity is, in relation to an individual who carries on a business, a reference to the provision of the service or facility or the production or provision of goods by the business.".
4Exemption from whole of scheme
At the end of section 16J of the Child Wellbeing and Safety Act 2005 insert—
"(2)The regulations may prescribe a part of an entity, or a part of a class of entities, to be exempt from the reportable conduct scheme.".
5Head of entity to respond to reportable allegation
In section 16N(3)(b) and (c) of the Child Wellbeing and Safety Act 2005, for "head of the entity" substitute "entity".
6Disclosure of information to the Commission, the head of an entity, a regulator, Victoria Police and others
In section 16ZC(2) of the Child Wellbeing and Safety Act 2005—
(a)in paragraph (f), for "matters." substitute "matters; and";
(b)after paragraph (f) insert—
"(g)any other prescribed person or body in relation to a prescribed matter, or a prescribed class of matters, if the information relates to the performance of a function conferred on the person or body by or under the laws of the Commonwealth, a State or a Territory.".
7New section 16ZJA inserted
After section 16ZJ of the Child Wellbeing and Safety Act 2005 insert—
"16ZJA Delegation
The Secretary to a Department, as the head of an entity, by instrument, may delegate to a person employed under Part 3 of the Public Administration Act 2004 who is working in the Department any power, function or duty of the Secretary under this Part.".
8Minister may make Child Safe Standards
In section 17(1) of the Child Wellbeing and Safety Act 2005, for "applicable" substitute "relevant".
9Category 1 and 2 entities must comply with Child Safe Standards
In section 19(3) of the Child Wellbeing and Safety Act 2005—
(a)in paragraph (a), for "applicable entity" substitute "category 1 entity or category 2 entity";
(b)in paragraph (b), for "an applicable entity" substitute "a category 1 entity or category 2 entity".
10Prescribed applicable entity must comply with Child Safe Standards
(1)In the heading to section 20 of the Child Wellbeing and Safety Act 2005 omit "applicable".
(2)In section 20(1) of the Child Wellbeing and Safety Act 2005, for "A prescribed applicable entity" substitute "A prescribed category 1 entity, category 2 entity or applicable entity".
(3)In section 20(2) of the Child Wellbeing and Safety Act 2005 omit "applicable".
11Applicable entity belonging to a prescribed class must comply with Child Safe Standards
(1)In the heading to section 21 of the Child Wellbeing and Safety Act 2005, for "Applicable entity" substitute "Entity".
(2)In section 21 of the Child Wellbeing and Safety Act 2005, for "An applicable entity" substitute "A category 1 entity, category 2 entity or applicable entity".
12Exemption from requirement to comply with Child Safe Standards
(1)In section 22 of the Child Wellbeing and Safety Act 2005, for "An applicable entity" substitute "A category 1 entity, category 2 entity or applicable entity".
(2)In section 22(c) of the Child Wellbeing and Safety Act 2005, after "facilities" insert "or in producing or providing goods".
13Application of Child Safe Standards to businesses not carried on by applicable entities
(1)In the heading to section 23 of the Child Wellbeing and Safety Act 2005, for "applicable entities" substitute "certain entities".
(2)In section 23(1)(a) of the Child Wellbeing and Safety Act 2005, after "not" insert "a category 1 entity, a category 2 entity or".
14Schedule 1—Category 1 entities
In Schedule 1 to the Child Wellbeing and Safety Act 2005—
(a)in item 6, for "A children's service" substitute "A licensee of a children's service";
(b)in item 16, for "A disability service provider" substitute "An applicable entity that is a disability service provider".
15Schedule 2—Category 2 entities
In item 2 of Schedule 2 to the Child Wellbeing and Safety Act 2005, for "A charity" substitute "An applicable entity that is a charity".
Part 3—Amendment of the Public Health and Wellbeing Act 2008
16Definitions
In section 3(1) of the Public Health and Wellbeing Act 2008, for the definition of age appropriately immunised substitute—
"age appropriately immunised in relation to a child means that—
(a)the child meets the immunisation requirements set out in section 6
of the A New Tax System (Family Assistance) Act 1999
of the Commonwealth; or
(b)the child meets the immunisation requirements declared by the Secretary under section 3A for the purposes of this definition;".
17New section 3A inserted
After section 3 of the Public Health and Wellbeing Act 2008 insert—
"3A Secretary may declare immunisation requirements
(1)For the purposes of the definition of age appropriately immunised in section 3(1), the Secretary may declare immunisation requirements by notice published in the Government Gazette.
(2)The Secretary may vary or revoke the declaration at any time by notice published in the Government Gazette.
(3)A declaration, or variation or revocation of a declaration, has effect from the day notice of the declaration, or its variation or revocation, is published in the Government Gazette or any later day specified in the notice.".
18New Division 3A of Part 8 inserted
After section 130 of the Public Health and Wellbeing Act 2008 insert—
"Division 3A—Notification of anaphylaxis presentation
130ADefinitions
In this Division—
anaphylaxis reporting body means—
(a)a public hospital; or
(b)a denominational hospital; or
(c)a private hospital; or
(d)a multi purpose service; or
(e)a privately-operated hospital within the meaning of the Health Services Act 1988;
person in charge means—
(a)in the case of an anaphylaxis reporting body that is a public hospital, denominational hospital, multi purpose service or privately-operated hospital, the chief executive officer of the body; and
(b)in the case of an anaphylaxis reporting body that is a private hospital, the proprietor of the private hospital.
130BNotification by anaphylaxis reporting body
(1)This section applies if a registered medical practitioner employed at, or otherwise engaged by, the anaphylaxis reporting body has reasonable grounds to believe that a person presenting for treatment at the anaphylaxis reporting body has anaphylaxis.
(2)An anaphylaxis reporting body must notify the Secretary in the prescribed manner of the prescribed notification details within the prescribed period.
(3)The person in charge of an anaphylaxis reporting body must implement processes to ensure that the anaphylaxis reporting body complies with subsection (2).
130CSecretary may provide anaphylaxis reporting information
If the Secretary considers that it is in the public interest to do so, the Secretary may provide information obtained under this Division to a person or class of person prescribed for the purposes of this section.".
19Application of sections 143B, 143C and 143D
(1)In the heading to section 143A of the Public Health and Wellbeing Act 2008, for "and 143D" substitute ", 143D and 143E".
(2)At the end of section 143A of the Public Health and Wellbeing Act 2008 insert—
"(2)Section 143E applies in relation to any child that attends an early childhood service.".
20Section 143B substituted
For section 143B of the Public Health and Wellbeing Act 2008 substitute—
"143B Obligation of person in charge of early childhood service
The person in charge of an early childhood service must ensure that the enrolment of a child at the early childhood service is not confirmed unless the parent of the child has provided to the early childhood service an immunisation status certificate which indicates, in relation to a date not more than 2 months immediately before the date on which the child first attends the early childhood service, that the child is age appropriately immunised.".
21New section 143E inserted
After section 143D of the Public Health and Wellbeing Act 2008 insert—
"143E Periodic production of immunisation status certificate
(1)The parent of a child who attends an early childhood service must provide to the person in charge of the early childhood service an immunisation status certificate indicating that the child is age appropriately immunised—
(a)within 2 months after the child attains a prescribed age; or
(b)at intervals not exceeding the prescribed period.
(2)The person in charge of an early childhood centre must take reasonable steps to ensure that a parent of a child who attends the early childhood service provides an immunisation status certificate in accordance with subsection (1).
(3)A parent of a child attending an early childhood service is not required to comply with subsection (1) if—
(a)section 143C(1) applies in relation to the child; and
(b)the relevant immunisation status certificate is to be provided during the 16 week period referred to in section 143C(2).".
22Sections 147 and 148 substituted
For sections 147 and 148 of the Public Health and Wellbeing Act 2008 substitute—
"147 Immunisation status certificate
An immunisation status certificate is—
(a)an extract of an entry in the Australian Immunisation Register kept under section 8 of the Australian Immunisation Register Act 2015 of the Commonwealth; or
(b)a document, or a combination of documents, of a class declared by the Secretary to be an immunisation status certificate for the purposes of this paragraph under section 148.
148Secretary may declare documents to be immunisation status certificates
(1)For the purposes of section 147(b), the Secretary may declare a class of document, or a class of a combination of documents, to be an immunisation statue certificate by notice published in the Government Gazette.
(2)The Secretary may vary or revoke the declaration at any time by notice published in the Government Gazette.
(3)A declaration, or variation or revocation of a declaration, has effect from the day notice of the declaration, or its variation or revocation, is published in the Government Gazette or any later day specified in the notice.".
23New section 149A inserted
After section 149 of the Public Health and Wellbeing Act 2008 insert—
"149A Review of provisions relating to immunisation of children attending or to attend early childhood services
(1)The Minister must arrange for a review to be conducted into the operation of sections 143B, 143C, 143D and 143E.
(2)The Minister must cause a copy of the review to be laid before each House of the Parliament before 30 November 2020.
(3)The review must give particular consideration to any unintended or adverse effects of sections 143B, 143C, 143D and 143E and may include recommendations on any matter addressed in the review. ".
24Management and control of infectious disease, micro-organisms and medical conditions
(1)After section 238(1)(k) of the Public Health and Wellbeing Act 2008 insert—
"(ka)for the purposes of Division 3A of Part 8—
(i)the manner of making a notification that a person has anaphylaxis;
(ii)the notification details for a person having anaphylaxis;
(iii)the period within which notification details for a person having anaphylaxis must be given;
(iv)the persons or classes of persons to whom the Secretary may provide information under section 130C;".
(2)In section 238(1)(o) of the Public Health and Wellbeing Act 2008, for "Part 8:" substitute "Part 8;".
Part 4—Amendment of the Health Complaints Act 2016
25Power to delegate
(1)In section 120(1)(a)(vi) of the Health Complaints Act 2016 omit "or".
(2)After section 120(1)(a)(vi) of the Health Complaints Act 2016 insert—
"(vii)section 156A; or".
26Protection from liability for Commissioner and Assistant Commissioners
After section 122(3) of the Health Complaints Act 2016 insert—
"(4)In this section, Commissioner includes a person appointed to act as the Commissioner under section 114.".
27New section 156A inserted
After section 156 of the Health Complaints
Act 2016 insert—"156A Power to bring proceedings
The following persons may bring proceedings for an offence against this Act or the regulations—
(a)the Commissioner;
(b)a person appointed to act as the Commissioner under
section 114;
(c)a police officer.".
Part 5—Consequential amendment and repeal of amending Act
28Health Legislation Amendment (Quality and Safety) Act 2017
Sections 95 and 96 of the Health Legislation Amendment (Quality and Safety) Act 2017 are repealed.
29Repeal of amending Act
This Act is repealed on 1 November 2019.
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
1 General information
See for Victorian Bills, Acts and current authorised versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 16 November 2017
Legislative Council: 30 November 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, the Public Health and Wellbeing Act 2008, the Health Complaints Act 2016 and the Health Legislation Amendment (Quality and Safety) Act 2017 and for other purposes."
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