Contentious new legislation providing a framework for the sharing of confidential information regarding children has been passed by the Victorian parliament, despite concerns it may “erode the rights of already vulnerable children”.
The controversy around the new rules illustrates the difficulties in balancing the privacy rights and data security of individuals versus the need for authorities and relevant bodies to access information to assist individuals and protect children.
While the state government has argued that the need to protect children and keep them safe supersedes their right to digital privacy, several civil liberty and digital rights groups have argued that the new legislation “goes too far”.
The Children Legislation Amendment (Information Sharing Bill) 2017 establishes the framework for professionals across a range of organisations, including child protection workers, teachers and health professionals, to share information about children in order to promote their safety.
It was passed by both houses with some minor amendments at the end of March.
The concept for a better information sharing framework emerged from the recent Royal Commission into Institutional Responses to Child Sexual Abuse, along with a number of other coronial inquests and child death inquiries.
It is broadly supported by all relevant groups, but debate has surrounded the extent of the information that can be shared, and whether consent is required from the children wherever possible.
The legislation allows “prescribed entities” to request confidential information from another prescribed entity for the “purposes of promoting the well-being or safety of a child”, and establishes the Child Link Register, which will store a “limited set of key factual information” of children.
The Child Link’s data will include personal details, contact details of guardians, details of a child’s participation in a service and whether a child protection order has been made.
The system would be accessible to a range of professionals who deliver government-funded services to children and families, with an aim to help with early interventions.
The Victorian government said the bill had three core aims: to improve early risk identification and intervention, to change a risk-averse culture in relation to information sharing and to increase collaboration and sharing between child and family services.
It follows similar legislation that was passed by Parliament late last year in relation to information sharing to prevent domestic violence.
Victorian Families and Children Minister Jenny Mikakos said the reforms were crucial, with the current information sharing guidelines being too “complex and confusing”, preventing life-saving interventions.
“These reforms will save lives – it’s as simple as that. We’re setting a benchmark for ensuring the health, safety and well-being of children by giving professionals the tools they need to keep kids safe before it’s too late,” Ms Mikakos told InnovationAus.com.
The new information sharing regime will ensure “no child falls between the cracks”, she said, providing the “most streamlined information sharing system Victoria has ever seen”.
But Victorian civil and digital rights groups also raised a number of concerns with the new information sharing regime, specifically around the broad scope of information that can be shared, the lack of consent required and the vulnerability of the Child Link network.
In its submission to government on the bill, Liberty Victoria president Jessie Taylor said the organisation supports the concept of streamlining child information sharing, but the legislation presented “goes too far”.
“As it stands, the Bill has the capacity to erode the rights of already vulnerable children and possibly be used for improper purposes. While we support a system of more effective communication between professionals to achieve better and more consistent information should be for a purpose that is objectively definable,” Ms Taylor said.
The requirement that the information must be shared for the purpose of “promoting well-being” is too broad and “essentially useless”, Ms Taylor said, creating the risk that “unnecessary or prejudicial information will be stored and accessed by other services”.
“This is particularly the case when we consider the broad allowability of good faith as a defence to many changes proposed in the Bill. The danger we perceive is an erosion of good practice based on children’s right to safety, and a climate of distrust where children and families do not know who is talking to whom behind their backs,” she said.
While acknowledging there will be many times when this confidential information will have to be shared without consent, Liberty Victoria argued that children should be able to give consent wherever possible.
This was not included in the passed legislation, and could serve to “further disempower vulnerable Victorians”, Liberty Victoria said.
“This arguably marginalises them in the very process put in place to benefit them. Few things could harm these objects more than failure to seek consent where practicable and safe, and when a person has the maturity and capacity to give it,” Ms Taylor said.
The state government has countered these arguments by claiming that a Victorian child’s right to safety comes before any concerns surrounding privacy, and a number of safeguards are included in the legislation to ensure that only authorised professionals have access to the confidential data.
These safeguards include offences and penalties if the information is shared inappropriately. The Victorian Information Commissioner was consulted on the legislation and provided a submission on it.
Both the state opposition and Greens raised similar concerns with the legislation in Parliament, but were ultimately supportive of it as a whole.
Nationals MP Emma Kealy spoke on the bill, saying there was not enough of a focus on privacy and data security.
“This bill does not have any checks and balances in terms of approvals about whether the sharing of this information is appropriate and whether this information should be provided to an individual who has a link to the child, and they need to be in place,” Ms Kealy said.
“I do not believe that those safeguards or checks and balances in terms of an approval process have been included with this legislation.”
“We do need to make sure that we have better sharing of information to protect children, but we do need to make sure that there are appropriate approvals in place so that people do not wrongly access and distribute this material,” she said.
“We also need to ensure that if we are keeping a register of children, it is maintained in a responsible way, because government does not always get it right, and releasing very sensitive information about children, putting their reputations at risk and in some instances putting their lives at risk, would be very much an unintended consequence of this legislation.”
Greens state MP Nina Springle also raised a “number of concerns” with the legislation, but did not oppose the overall bill.