Thursday, 1 September 2022
Bills
Early Childhood Legislation Amendment Bill 2022
Early Childhood Legislation Amendment Bill 2022
Introduction and first reading
The PRESIDENT (17:31): I have a message from the Assembly:
The Legislative Assembly presents for the agreement of the Legislative Council ‘A Bill for an Act to amend the Education and Care Services National Law Act 2010, the Children’s Services Act 1996, the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021, the Child Wellbeing and Safety Act 2005 and for other purposes’.
That the bill be now read a first time.
Motion agreed to.
Read first time.
Ms SHING: I move, by leave:
That the second reading be taken forthwith.
Motion agreed to.
Statement of compatibility
Ms SHING (Eastern Victoria—Minister for Water, Minister for Regional Development, Minister for Equality) (17:32): I lay on the table a statement of compatibility with the Charter of Human Rights and Responsibilities Act 2006:
In accordance with section 28 of the Charter of Human Rights and Responsibilities Act 2006 (the Charter), I make this statement of compatibility with respect to the Early Childhood Legislation Amendment Bill 2022 (the Bill).
In my opinion, the Bill, as introduced to the Legislative Council, is compatible with the human rights protected by the Charter. I base my opinion on the reasons outlined in this statement.
Overview of the Bill
One of the main purposes of the Bill is to amend the Education and Care Services National Law Act 2010, the Children’s Services Act 1996, and the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021 to provide for the Regulatory Authority for Victoria under the National Law and the Children’s Services Act 1996 to be the integrated sector regulator for Child Safe Standards for the early childhood sector.
The Bill also amends the Education and Care Services National Law (National Law) set out in the Schedule to the Education and Care Services National Law Act 2010, in order to implement the recommendations of the 2019 National Quality Framework Review, and makes corresponding amendments to the Children’s Services Act 1996.
In addition, the Bill amends the Child Wellbeing and Safety Act 2005 to require providers of certain maternal and child health services to employ or engage nurses for those services only if the nurses have prescribed specialist maternal and child health nursing qualifications and any prescribed prerequisites.
Human rights issues
The Bill includes amendments which promote the rights of children (eg, clauses 4, 8, 35, and 100), which are protected under section 17(2) of the Charter.
A number of clauses may engage the right to privacy, protected under section 13(a) of the Charter. However, for the reasons set out below, the right to privacy is not limited.
Right to Privacy
Section 13(a) of the Charter provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with. An interference will be lawful if it is permitted by a law which is precise and appropriately circumscribed. It will be arbitrary only if it is capricious, unpredictable, unjust or unreasonable, in the sense of extending beyond what is reasonably necessary to achieve the statutory purpose.
A number of clauses in the Bill authorise requests for, and the disclosure of, information by or to the Regulatory Authority (see clauses 4, 9, 17, and 41). For example, clause 17 amends section 14(1) of the National Law to empower the Regulatory Authority to require a person who has applied for a provider approval to provide information, including for purposes of assessing the person’s knowledge of the National Quality Framework (see also clause 41, which amends section 14(1) of the Children’s Services Act 1996). In addition, clause 4 inserts new Part 2A (Compliance with Child Safe Standards) into the Education and Care Services National Law Act 2010. Within Part 2A, new section 16B empowers the Regulatory Authority (when exercising jurisdiction in Victoria) to collect, analyse and publish information and data regarding compliance with the Child Safe Standards by relevant entities (defined as an approved provider of an approved education and care service located in this jurisdiction), and to give that information to the Commission for Children and Young People (see also clause 9, which inserts new section 160(1)(da) into the Children’s Services Act 1996).
To the extent the information which may be requested or disclosed pursuant to these clauses may include personal information, the right to privacy is engaged. However, the scope of any interference with a person’s privacy is likely to be modest, as there is a reduced expectation of privacy in the context of the regulated environment of early childhood services. Moreover, I do not consider that these clauses limit the Charter right to privacy, because any interference with a person’s privacy will be lawful (as the relevant authorising sections are precise and accessible) and not arbitrary.
More specifically, the scope of the permitted sharing of information is confined to what is reasonably necessary for the Regulatory Authority to effectively perform its functions. For instance, section 160(3) of the Children’s Services Act 1996 (inserted by clause 9) provides that the Regulatory Authority may exchange information with persons and bodies with functions or powers under a law of another State, a Territory, or the Commonwealth relating to the monitoring or enforcement of compliance with standards that correspond to the Child Safe Standards.
A number of other safeguards ensure that any interference with privacy will be appropriately constrained, including the application of the Privacy and Data Protection Act 2014 and section 38 of the Charter to the Regulatory Authority and other public authorities in Victoria.
The Hon. Ingrid Stitt
Minister for Workplace Safety
Minister for Early Childhood and Pre-Prep
Second reading
That the second-reading speech be incorporated into Hansard.
Motion agreed to.
Ms SHING: I move:
That the bill be now read a second time.
Incorporated speech as follows:
The Andrews Labor Government is committed to ensuring quality early childhood education and care, which plays a vital role in supporting the learning and development of Australian children in their early years and helps to lay the foundation for better health, education and employment outcomes later in life.
This Bill seeks to enhance the regulatory system for early childhood education in Victoria and nationally by:
• amending the Education and Care Services National Law (National Law) to implement the 2019 National Quality Framework Review (NQF Review) and make other minor technical amendments to the National Law;
• making corresponding amendments to the Children’s Services Act 1996 (CS Act) to maintain alignment with the National Law;
• amending the Education and Care Services National Law Act 2010 (the National Law Act), the CS Act and the Child Wellbeing and Safety Act 2005 (CWS Act) to provide for the Secretary to the Department of Education and Training, as the Victorian Regulatory Authority under the National Law and the CS Act, to be the integrated sector regulator of the Child Safe Standards (CSS) for the early childhood sector; and
• amending the National Law Act to remove the redundant requirement to table the annual report of the national authority in each house of the Victorian Parliament.
The Bill also amends the CWS Act to incorporate further regulation making powers to prescribe prerequisites for maternal and child health (MCH) nurses and to incorporate documents including the MCH Service Guidelines 2019.
Amendments arising from the National Quality Framework (NQF) Review and other minor policy decisions
The NQF sets national requirements and standards for the provision of education and care, and strikes the right balance between quality and affordability, by focusing on improving the quality of services, providing access to information about the quality of services and reducing the regulatory burden on services.
The NQF operates nationally and regulates education and care services that are provided to children on a regular basis, including preschools (kindergartens), long day care services, family day care (FDC) services and outside school hours care (OSHC) services. The NQF consists of the National Law and the Education and Care Services National Regulations (including the National Quality Standard).
The 2019 NQF Review aimed to ensure that the NQF continues to meet its objectives and consider the ongoing effectiveness and sustainability of the NQF in light of the continuing evolution of the education and care sector.
The NQF operates as an applied national law scheme. The national law is enacted by Victoria, as the host jurisdiction, in a schedule to the National Law Act and is applied in other jurisdictions as their own law or, in Western Australia, through corresponding legislation.
On 6 May 2022, the Education Ministers Meeting endorsed the final 2019 NQF Review package, which recommended changes to the NQF and included drafting instructions giving effect to amendments to the National Law arising from the recommendations and other policy changes previously agreed to by Education Ministers.
The Bill makes changes to the National Law to give effect to these amendments by:
• strengthening the safety of children in early childhood services by addressing gaps between the National Principles for Child Safe Organisations and the NQF, and requiring that all FDC coordinators complete child protection training prior to commencing employment;
• improving safety and oversight in FDC services by enabling improved access for Regulatory Authorities to FDC residence-level information on a service’s FDC register, enabling risk-based proactive approaches to regulation and assisting in the identification of FDC educators during emergency situations;
• improving oversight and compliance tools for Regulatory Authorities through minor changes to the process for transfer of services between approved providers;
• providing that cancellation or refusal of provider approval under the Commonwealth Family Assistance Law (FAL) for lack of fitness and propriety is to be a specific ground for cancellation or refusal of a provider approval under the National Law;
• confirming that the Regulatory Authority may administer questions to an applicant for provider approval to assess their fitness and propriety and to undertake an assessment of their knowledge of the NQF;
• updating the maximum penalties for offences throughout the National Law by increasing those penalties by 14.9 per cent to keep up with the cumulative increase in the consumer price index since the beginning of the NQF;
• reducing burden for education and care services by aligning the definition of ‘person with management or control’ of a service with the FAL definition of ‘person with management or control’ of a provider entity to better capture persons exercising significant influence over the operation of a service;
• making minor and technical amendments to clarify existing provisions, such as the calculation of FDC coordinator to educator ratios.
The Bill will also make relevant corresponding changes to the CS Act to align the residual Victorian regulatory scheme under which a small number of children’s services are still regulated.
The Bill will also make a minor amendment to remove a redundant requirement to table the annual report of the National Quality Framework’s National Authority (the Australian Children’s Education and Care Quality Authority), in each house of the Victorian Parliament.
Amendments relating to regulating the Child Safe Standards
The Bill provides for the Regulatory Authority for Victoria under the National Law and CS Act to be the integrated sector regulator of the CSS for the early childhood sector.
The aim of the CSS is to drive cultural change in organisations so that protecting children from harm and abuse is embedded in the everyday thinking and practice of leaders, staff and volunteers. Organisations including early childhood services have been required to comply with a new set of CSS since 1 July 2022.
A new regime for enforcing compliance with the CSS will commence on 1 January 2023 under amendments made to the CWS Act by the Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021. Under the new regulatory regime, each sector that is subject to the CSS will have its own ‘sector regulator’ (that will use the new powers in the CWS Act), or ‘integrated sector regulator’ (that will use its existing regulatory powers), to enforce compliance with the CSS.
The Regulatory Authority for Victoria (that is, the Secretary to the Department of Education and Training) will be the integrated sector regulator for the CSS in early childhood services that operate in Victoria, using the broad suite of regulatory powers available to it as the Regulatory Authority under the regulatory schemes in the NQF and CS Act and Children’s Services Regulations 2020.
To achieve this, the amendments to the National Law Act will:
• provide the Regulatory Authority with the functions relevant to its role as an integrated sector regulator, including the functions to:
i. monitor and enforce compliance with CSS by early childhood services in Victoria, and exchange information; and
ii. collaborate with persons and bodies in relation to the safety of children and compliance with the CSS;
• provide that, when the Regulatory Authority is carrying out its functions as an integrated sector regulator, it must consider the most effective means of promoting compliance by an early childhood service with the CSS and may exchange information and collaborate with similar enforcement agencies in other jurisdictions;
• provide that, when the Regulatory Authority is carrying out its functions as an integrated sector require compliance with the CSS as a condition on service approval, which will allow the Regulatory Authority to use its existing regulatory and enforcement tools when monitoring and enforcing compliance with CSS,
• provide that, when the Regulatory Authority is carrying out its functions as an integrated sector make changes to the way the National Law relates to the enforcement of the new CSS condition on service approval for Victorian services, to ensure effective interaction of the two schemes; and
• provide that, when the Regulatory Authority is carrying out its functions as an integrated sector exclude the application of irrelevant provisions.
Requiring compliance with the CSS as a condition on service approval will allow compliance and enforcement activity related to the CSS to be integrated into the Regulatory Authority’s existing responsive, risk-based regulatory approach.
The Bill will also:
a. make relevant corresponding amendments to the CS Act; and
b. amend the CWS Act to provide that the Regulatory Authority is the integrated sector regulator for the early childhood entities specified in items 9 and 10 of Schedule 1 of the CWS Act.
Amendments to the CWS Act relating to Maternal and Child Health (MCH) nursing services
The Bill also makes amendments to the CWS Act to require providers of MCH nursing services to employ or engage nurses only if they have a prescribed prerequisite.
The Bill also amends the CWS Act to enable incorporation of the Maternal and Child Health Service Guidelines 2019 into the regulations. These guidelines provide the integrated framework and approach to service delivery in Victoria and outline the qualification and registration requirements for Maternal and Child Health nurses. The high-level of education in this workforce ensures they are well-qualified to provide a broad scope of practice across general, midwifery and maternal, child and family health nursing.
The amendment to the Child Safety and Wellbeing Act provides a legislative mandate for compliance with this requirement, ensuring nurses who are employed or engaged to provide a Maternal and Child Health service not only have the appropriate qualifications, but are also registered as a midwife.
Prescribing midwifery registration as a prerequisite for Maternal and Child Health nurses will safeguard and uphold the education and knowledge necessary to be registered as a midwife. It will ensure post-birth infant and maternal care such as breastfeeding and maternal health and wellbeing, as well as child health and development are upheld as key capabilities of Maternal and Child Health nurses.
This Bill goes some way to recognising the dynamic role nurses and midwives have within the health system, the changing structures in which they practice and the evolving nature of care they provide to us as the community.
I commend this Bill to the House.
Mr RICH-PHILLIPS (South Eastern Metropolitan) (17:32): On behalf of Dr Bach, I move:
That debate on this bill be adjourned for one week.
Motion agreed to and debate adjourned for one week.