Chapter 1: Clarity of information sharing legislative framework

Introduction

Part 5A of the Family Violence Protection Act 2008 (Vic) (the Act) provides the legal basis for the Family Violence Information Sharing Scheme (FVISS). For any legislative reform to be effective, it is important that the legal provisions outlining individuals’ and organisations’ rights and responsibilities are clear and understood by those impacted by the provisions. Clarity helps provide certainty to organisational leaders and practitioners and improves consistency in practice.

To support clarity, the Act requires the Minister for Prevention of Family Violence (the Minister) to issue guidelines (the Ministerial Guidelines) that specify the requirements that information sharing entities (ISEs) must comply with to demonstrate their capacity to handle information responsibly and appropriately under Part 5A.¹

This chapter addresses the extent to which the legal provisions in Part 5A are sufficiently clear to support the operation of the FVISS. It also discusses the extent to which the Ministerial Guidelines and the Family Violence Protection (Information Sharing and Risk Management) Regulations 2018 (the Regulations) support clarity and practitioner understanding of the Act’s requirements.

The effectiveness of Part 5A in achieving its objectives is discussed further in Chapter 2, while the impact of information sharing on victim survivors is outlined in Chapter 3. The clarity and effectiveness of the legal provisions in Division 6 of Part 5A, which provide the legal framework for the Central Information Point (CIP), are discussed in Chapter 4.

Clarity of Part 5A

The legal requirements in the Act are sufficiently clear, although some terminology is confusing for ISEs and is inconsistent with terminology used in the MARAM Framework and in practice

Most stakeholders view the legal provisions in Part 5A as clear. As shown in Figure 4, 64 per cent of submission responses to this question agreed that the Act is sufficiently clear. Some submissions indicating that the provisions are clear also identified points of confusion in relation to some of the Act’s terminology. This is discussed further below.

In responding to this question, The Sexual Assault and Family Violence Centre noted:²

[P]ractitioners’ experience … highlights that the legal requirements in The Act are sufficiently clear in relation to the meaning of key terms, the circumstances in which confidential information can be requested or disclosed, and record-keeping requirements.

In our submission analysis, it was evident that both phase 1 and phase 2 organisations find the legislation clear, suggesting that the length of prescription as an ISE was not a factor in stakeholder views on clarity. Separately, during consultations, several stakeholders expressed the view that the legislation is clear. We agree with this view and consider that Part 5A is sufficiently clear in outlining the requirements associated with information sharing.

Although many stakeholders reflected that the Act is sufficiently clear in providing a legal framework for FVISS, a number of stakeholders highlighted a lack of understanding or clarity regarding some of the Act’s terminology. Other stakeholders raised concerns that Part 5A’s terminology does not align with the Family Violence Multi-Agency Risk Assessment and Risk Management (MARAM) Framework. Key issues raised by stakeholders are outlined below.

Relevancy of information to sharing purposes

The Act’s purposes are to maximise safety for children and adults who have experienced family violence, prevent and reduce family violence, and promote the accountability of perpetrators.³ The Act aims to achieve these purposes in part by “providing for the sharing of information that is relevant to assessing and managing a risk of family violence”.⁴

Under Part 5A, information can be shared for a family violence assessment purpose or a family violence protection purpose.⁵ These terms are explained in Figure 5. We heard from some stakeholders that these purposes can be difficult to fully understand and to distinguish in practice. Stakeholders also highlighted challenges in assessing the relevance of different types of confidential information to either an assessment or a protection purpose.⁶ Although confidential information is defined in legislation,⁷ relevancy is undefined. Practitioners are guided to assess the relevance of confidential information by exercising professional judgement using their understanding of the MARAM Framework.⁸

The lack of definition may contribute to an inconsistent interpretation and application of the provisions. Stakeholders reported that information sharing can vary greatly when ISEs request or share information because of differing interpretations of relevance.

Data provided by the Department of Education for the Information Sharing and MARAM Enquiry Line also showed that in the 2021–22 financial year, ISEs continued to ask questions about sharing different types of information. This supports the view that there is still uncertainty in practice about what information can be shared.

Difference between information sharing entities and risk assessment entities

Some stakeholders identified uncertainty regarding the terms ISE and risk assessment entity (RAE) and the difference between these in practice. Victoria Police reflected that this may be largely because all agencies tend to be assessing risk in some capacity and therefore ISEs often assume they are prescribed as an RAE. Victoria Police also noted that, although the Ministerial Guidelines note the difference between ISEs and RAEs,⁹ in practice this contributes to ongoing confusion and inefficiencies.

Determining what is perpetrator or victim survivor information

Under the Act, ISEs may share confidential information about perpetrators or alleged perpetrators without their consent.¹⁰ Generally, ISEs must not share information about adult victim survivors without their consent, unless it is necessary to lessen or prevent a serious threat or if the confidential information relates to a victim survivor who is a child.¹¹ Consent is discussed further in Chapter 3.

Some stakeholders noted that there can be uncertainty in determining who information relates to and, therefore, whose consent is required to share the information. Although we recognise that this uncertainty arises under general privacy laws and does not result from the specific provisions in Part 5A, we acknowledge stakeholder feedback of this issue in the context of information sharing under Part 5A.

Consistency of language with the MARAM Framework

Some terminology in Part 5A is inconsistent with the terminology used in the MARAM Framework. This is shown in Table 3. We note that, unlike the Act, the Ministerial Guidelines and relevant practice guidance and training use terms that are consistent with the MARAM Framework.¹² However, stakeholders noted this inconsistency as a point of confusion that negatively impacts on the clarity of the legal provisions and on services’ understanding of their responsibilities under the FVISS. Stakeholders also noted that ‘person of concern’, ‘primary person’ and ‘linked person’ are not terms regularly used by practitioners.

Additional concerns about terminology

Some stakeholders identified other terminology in the Act that they felt required clearer definitions or guidance to support interpretation and use in practice. These terms included ‘excluded information’, ‘reasonable belief’, and ‘good faith’. Given the small number of stakeholders who raised concerns about these terms, we do not consider that they are creating broad confusion or uncertainty.

Although confusion regarding specific terminology in the Act can lead to inconsistency and uncertainty in practice, changing the Act’s terminology may undermine the Act’s objectives and negatively impact on victim survivor safety

Stakeholders reflected that uncertainty regarding terminology can lead to practitioner confusion about the requirements for sharing information under the Act. When ISEs interpret terminology differently, it can also create inconsistencies in practice. For example, although The Sexual Assault and Family Violence Centre noted that the Act is clear, they also highlighted that there were occasions when organisations they worked with interpreted key terms differently.¹³ This view was shared by other stakeholders, with many reflecting that inconsistent interpretation is particularly evident within some universal services regarding their obligation to respond to requests.

We considered whether any changes to the Act would improve clarity and support practitioners’ understanding of the Act’s terminology. For example, we contemplated adding a definition for relevant information and/or providing examples of what may constitute relevant information or victim survivor confidential information. We also considered whether the Act should be amended to directly align the terminology in the Act with the MARAM Framework.

After consideration, we do not recommend amending any terminology in the Act. We recognise the value of not defining relevant information in allowing practitioners maximum scope to assess the relevancy of information based on the specific circumstances of each case. In our view, this allows for the greatest amount of information to be shared. There is also a significant risk that including examples of relevant information or victim survivor information could result in practitioners failing to share information that is not expressly set out in the examples. This may lead to a reduction in information sharing, thereby compromising victim survivor safety and undermining the objectives of Part 5A.

This view was supported by our review of other jurisdictions’ information sharing schemes. Other Australian states and territories do not provide examples in their legislation and either do not define relevant information at all or provide a broad definition that lacks sufficient clarity or specificity to address the concerns raised during the legislative review.¹⁴

We also note that the Act was introduced before developing the MARAM Framework, with the terms ‘person of concern’ and ‘primary person’ being used in the Act due to legal drafting constraints. For example, we understand that the term ‘perpetrator’ is not used in the Act because the term is used in a criminal justice context to mean a person who has been convicted of a crime. We agree that using the term ‘perpetrator’ in the Act may lead to ambiguity across Victorian legislation and may result in some ISEs wrongly believing that they can only share information under Part 5A without consent where the perpetrator has family violence or criminal convictions. We therefore do not recommend the use of ‘perpetrator’ in Part 5A.

Although we acknowledge the challenges faced by some ISEs when interpreting the Act’s terminology, we believe that these challenges are best addressed through a strong implementation program. In Chapter 7, we address some of the implementation challenges raised by stakeholders and provide suggestions for addressing these issues.

The Act’s principles for information sharing support decision making in practice

The Act outlines principles in relation to the collection, use or disclosure of confidential information under Part 5A. The principles are set out in Box 2 below. Additional principles apply to the handling of a child’s confidential information.¹⁵

The Act does not require organisations to embed these principles within their policies or processes. Rather, the principles aim to guide ISEs in their decision making under the Act. Most submission responses to the Monitor addressing this question indicated that the principles are nonetheless reflected in organisational policies and are used to support decision making. As shown in Figure 6, 65 per cent of submission responses indicated that the principles are either fully or mostly reflected in relevant policies and procedures, while 82 per cent of responses indicated that principles, combined with the Ministerial Guidelines, support practitioners to make decisions under the Act.

Some submission responses indicating that the principles are not fully reflected in policies identified the need for clear, accessible practice guidance. In our view, this is the role of the Ministerial Guidelines, which provide direction to ISEs on how to apply Part 5A. The Ministerial Guidelines are discussed further below. Other submissions noted that their organisation has adopted additional processes to further support decision making. For example, Monash Health noted that secondary consultations and escalation processes have been embedded in their work to help weigh up the principles related to privacy, agency and risk.¹⁶

We also heard examples of the principles being used to support information sharing. A representative of the Strengthening Hospital Responses to Family Violence Initiative shared their experience of having a conversation with a mental health worker in a public hospital. They explained to the worker how the principles can inform decision making about how to move forward with engaging another ISE and considering what information to share with them. The ability for the principles to inform decision making when faced with a resistance to share information was also highlighted in some submissions.

In our view, the principles are a useful mechanism to support ISEs to make decisions while exercising their professional judgement. They reflect the benefits of service coordination, the need to prioritise victim survivor safety over perpetrator privacy, and the importance of considering the needs of Victoria’s diverse communities. We do not consider that any changes to the principles are required.

The role of court personnel and bodies as ISEs is not well understood by some other ISEs, and there is little guidance currently available on the role of courts

Part 5A of the Act applies differently to courts and tribunals. Section 144I of the Act, which is set out in Box 3 below, provides that Part 5A does not apply to courts and tribunals insofar as they are exercising judicial or quasi-judicial functions.¹⁷ Obligations in the Act to disclose confidential information for family violence assessment and protection purposes, and to comply with the Ministerial Guidelines, also do not apply to courts.¹⁸ These provisions are “intended to ensure that the information sharing scheme does not affect the independence of courts and tribunals”.¹⁹

Staff known as ‘court officials’ for the Magistrates’ Court of Victoria and the Children’s Court of Victoria were prescribed as ISEs under phase 1 of the reforms.²⁰ As noted in Chapter 2, the Magistrates’ Court of Victoria responds to a significant number of information requests under Part 5A each month.

It was evident from our consultations and submissions that the courts’ role as an ISE is not clear to some. For example, one stakeholder provided an example in which they stated that a court considering issuing a family violence intervention order should have requested confidential information. As this is a judicial function, we do not believe that Part 5A authorises a court to make this request. Another stakeholder raised concerns that information disclosed in response to requests from court personnel, regardless of function, may subsequently be shared with perpetrators as part of required court processes. This stakeholder was reluctant to respond to these requests fearing negative impacts on victim survivor safety. Staff from the Magistrates’ Court of Victoria similarly told us that the application of Part 5A to courts is not well understood across the sector.

There is little guidance available to assist stakeholders to understand how Part 5A applies to the courts and court staff. For example, the Ministerial Guidelines state that “Courts and tribunals’ participation in the [FVISS] is voluntary”²¹ but otherwise include no information on the prescription of court officials as ISEs, the limitations on courts requesting or sharing confidential information, or what constitutes a judicial or quasi-judicial function.

In our view, further guidance is needed to support ISEs to request information and respond to information requests from the courts in line with the Act. We believe that this guidance is best provided through updates to the Ministerial Guidelines, noting that the role of the Ministerial Guidelines is to help ISEs to understand their obligations under Part 5A. We therefore recommend amending the Ministerial Guidelines to provide guidance on how the courts can and cannot participate in the FVISS. We suggest that this guidance includes an explanation of a judicial and quasi-judicial function, noting that many ISEs are likely unfamiliar with these legal concepts. We also note that consultation with the courts will be required in developing guidance.

Clarity of the Ministerial Guidelines

The Ministerial Guidelines satisfy the Act’s requirements but are difficult to navigate and are not readily understood by some practitioners, which limits their effectiveness

Part 5A requires the Minister to issue guidelines in relation to the operation of the Part.²² Under the Act, the guidelines must:²³

• specify the requirements that ISEs must comply with to demonstrate their capacity to handle confidential information responsibly and appropriately
• address child consent to the collection, use or disclosure of their information.

The Ministerial Guidelines are intended to “assist [ISEs] to understand their obligations under … Part 5A and ensure that information is shared in a way that appropriately balances the safety needs of family violence victims with individuals' rights to privacy”.²⁴ When handling confidential information, all ISEs (except for court personnel and bodies) must comply with the issued guidelines.²⁵

The Ministerial Guidelines were first released in December 2017. They were updated in September 2018 and April 2021 as new organisations and individuals were prescribed as ISEs. The current Ministerial Guidelines are 152 pages long and provide extensive information about using the Act in practice. The Ministerial Guidelines include figures, case studies, checklists and sample forms to support understanding of Part 5A. They have chapters that explain the collection, use and disclosure of children’s information and the associated consent provisions.²⁶

In our analysis, we found that the Ministerial Guidelines satisfy the Act’s requirements. They provide all the information necessary for ISEs to understand what they must do to legally participate in the FVISS under Part 5A. The Ministerial Guidelines also address child victim survivor consent to information sharing.

We heard mixed views from stakeholders about the extent to which the Ministerial Guidelines support understanding of the Act’s requirements. As shown in Figure 6 above, 82 per cent of submission responses to the Monitor addressing this question indicated that, combined with the Act’s principles, the Ministerial Guidelines support decision making. For example, Safe and Equal reflected that the Ministerial Guidelines provide invaluable support to ISEs and are relied upon at all levels of service delivery.²⁷ Other stakeholders noted that the Ministerial Guidelines were initially challenging to use in practice but that familiarity with them leads to a better understanding of the requirements of Part 5A.

In contrast, the comprehensiveness of the Ministerial Guidelines has proved overly dense for many stakeholders. We heard from several stakeholders that the Ministerial Guidelines are overly complex, inaccessible, too lengthy and do not support practitioners to apply the Act. Some submission responses indicating that the principles and Ministerial Guidelines support decision making nonetheless highlighted that in their view the guidelines are too complex.

Some stakeholders also noted the need for the Ministerial Guidelines to be supplemented by targeted or tailored advice and guidance for practitioners in different sectors. For example, Ambulance Victoria explained that they had created a quick reference matrix for information sharing criteria based on the Ministerial Guidelines, while the Department of Health has developed materials at a higher level than the Ministerial Guidelines to support practitioners to understand their day-to-day obligations. Submission responses similarly highlighted the need for sector-specific information.

We recognise the enormity of, and inherent challenges involved in, crafting Ministerial Guidelines that specify the requirements that ISEs must comply with to demonstrate their capacity to handle confidential information responsibly and appropriately, and which are useable for practitioners from a range of disciplines. We also acknowledge that the current Ministerial Guidelines were informed by stakeholder feedback through a comprehensive public consultation process, with Family Safety Victoria receiving 34 submissions and other feedback from a range of sectors.

However, we are concerned that, although the Ministerial Guidelines may fulfil the legal requirements of the Act, they are not always meeting their purpose of assisting ISEs to understand their obligations to ensure information is shared appropriately and responsibly.

The Ministerial Guidelines are difficult to navigate and are not readily understood by all ISEs that must apply them. Stakeholders told us that the language in the Ministerial Guidelines is not accessible and does not provide practitioners with the clear information they need to understand how to request and disclose confidential information responsibly and appropriately in accordance with the Act. Although explanatory information, checklists and case studies are included, they are not presented in a format that is easily understood. The summary version of the Ministerial Guidelines, while shorter, is written in the same language as the full guidelines, and we consider it is similarly difficult to grasp. We also believe that the one-page overview of the FVISS, which is intended to provide a clear and brief description, is hard to follow and interpret.²⁸

The Ministerial Guidelines are intended to “provide direction to ISEs on how to apply Part 5A”.²⁹ They also include “guidance to ISEs on internal policies, systems and practices to ensure that information is shared appropriately and responsibly”.³⁰ It is therefore important that the Ministerial Guidelines outline information sharing requirements in a way that is easy for ISEs, including organisational leaders and practitioners, to understand. Many stakeholders highlighted the need for clear and simple guidance to support organisations to comply with their obligations under the Act. This is necessary to support the implementation of Part 5A in practice, and thereby promote the objectives of Part 5A and the Act.

We therefore recommend that the Ministerial Guidelines be amended to improve understanding. We suggest that amendments focus on the matters set out in Figure 7 below. We have made other recommendations in this report to provide further practitioner guidance in the guidelines. Simplifying the language and structure of the Ministerial Guidelines will enable this additional guidance to be provided while still reducing overall length and complexity. We also suggest that the case studies in the guidelines be reviewed with a view to ensuring case studies focus on identified areas of practitioner confusion and uncertainty, including those highlighted in this report. This will maximise the guidelines’ utility for practitioners.

As discussed in Chapter 5, the Ministerial Guidelines outline an expectation that ISEs will refer to the MARAM Framework when sharing information under Part 5A.³¹ Recognising the need to understand aspects of the MARAM Framework to share information responsibly and appropriately, and that not all ISEs are prescribed as framework organisations, we believe the Ministerial Guidelines would benefit from greater referencing and integration with the guidance and key capabilities required of professionals contained in the MARAM Framework resources and practice guides. The Ministerial Guidelines regularly state that ISEs should refer to the MARAM Framework for advice and information on certain matters relevant to sharing information.³² However, there is no summary of the relevant advice and information, and specific reference points within MARAM materials are not provided. This may make it challenging for practitioners to identify relevant sections within the MARAM resources to refer to and/or to identify relevant advice to inform their practice.

In our view, a more helpful approach would be for the envisaged information from MARAM resources to be summarised within the Ministerial Guidelines themselves, and relevant sections of MARAM materials cross-referenced. Greater referencing and integration into the Ministerial Guidelines would allow practitioners to easily access and incorporate required information in MARAM materials to support their information sharing practices. It would also reduce the need for practitioners to source the information themselves, which is particularly important given the volume and length of some MARAM materials. Although we acknowledge that various aspects of MARAM materials may be relevant to integrate into the Ministerial Guidelines, we suggest a particular focus on content relating to MARAM Responsibility 6.

Approach to prescribing ISEs under the Regulations

Although Victoria’s approach to prescribing ISEs is complex, it is also the most comprehensive approach and should be maintained

Part 5A provides that ISEs are people or bodies prescribed as such in regulations.³³ This was done in response to the Royal Commission into Family Violence’s recommendation that organisations be prescribed to ensure the organisations that could share information under the FVISS would be easily identifiable.³⁴ The Royal Commission also preferred the flexibility of prescribing organisations by regulation in allowing for organisations to be added or removed from the FVISS as necessary and to ensure information sharing would be limited to a discrete number of organisations relevant to family violence.³⁵

In determining which organisations and programs should be prescribed as ISEs, government considered the effectiveness of prescribing organisations in meeting the intended objectives of Part 5A, the risk of inappropriate practice and the costs to entities.³⁶ This resulted in primarily organisations that are engaged or funded under Victorian State contracts being prescribed. In contrast, certain organisations and services that have similar functions to some ISEs have not been prescribed. This includes many Commonwealth-funded services such as service providers funded by the National Disability Insurance Scheme, and private providers such as private mental health services.

Stakeholders reported confusion with understanding what organisations and programs have been prescribed as ISEs, even within their own agencies. Stakeholders also told us that the available guidance does not always resolve the confusion. For example, Merri Health noted:³⁷

While [the Regulations] are plainly regulated for state government funded programs, it becomes less clear as to whether Commonwealth-funded programs that are implemented in Victoria fall under the same legislative requirements. This has caused confusion when trying to request information from Commonwealth-funded programs for the purpose of managing family violence risk, and for organisations … to provide clear guidance to staff around their obligations based on their program’s funding stream.

Another stakeholder working with older family violence victim survivors, including those experiencing elder abuse, similarly stated:³⁸

The core aged care services which older people access … are not information sharing entities. This can contribute to confusion within organisations that are within scope of FVISS, such as a Health network about what can be shared between which program, creating further complexity that may adversely impact the assessment of risk and safety of older people.

In Chapter 7, we suggest fresh consideration of prescribing some Commonwealth-funded agencies and private service providers as ISEs. Regardless of whether this approach is adopted, it is important that ISEs have a clear understanding of who is prescribed.

We considered whether alternative approaches to prescribing individuals and organisations would increase clarity and reduce complexity. This included considering the approach in other jurisdictions that have family violence information sharing provisions. Some of the different approaches used in other jurisdictions are set out in Table 4.

Although we acknowledge the complexity of Victoria’s regulations, we believe the Victorian approach is preferable to other models we examined. The Regulations provide the most comprehensive approach to prescribing organisations that can share family violence information. We also support the functional approach, noting that many organisations undertake a broad range of services and that it is important to limit information sharing to those parts of an organisation that require access to information for a family violence assessment or protection purpose. This is discussed further below in relation to legal services.

Table 4: Other approaches to defining organisations that can share information

_{Sources: Crimes (Domestic and Personal Violence) Act 2007 (NSW), section 98A; Domestic and Family Violence Protection Act 2012 (Qld), section 169C; Children and Community Services Act 2004 (WA), section 28A; Domestic and Family Violence Act 2007 (NT), section 124B; Northern Territory Domestic and Family Violence Information Sharing Guidelines (updated August 2020), p. 15.}

Further, given that many thousands of organisations are prescribed in Victoria, it is not feasible to name organisations as under the Northern Territory model. We also recognise the benefit of using legal criteria to define prescribed individuals and organisations rather than adopting an expansive approach, as is the case in Queensland for example. Although potentially adding complexity, using legal criteria is important to provide certainty about who can share information. Without such certainty, the risk of inappropriate and unauthorised information sharing would significantly increase.

However, we believe there would be benefit in producing clearer guidance for stakeholders about which organisations are prescribed as ISEs, how to determine if organisations are ISEs, and how best to coordinate family violence identification, assessment and management with service providers that are not prescribed. We understand that Family Safety Victoria has drafted a ‘ready reckoner’ to support understanding of which organisations have been prescribed as ISEs. We support the public release of this document, subject to a review to ensure its user-friendliness.

We also acknowledge the work of government departments and agencies in preparing and maintaining the ISE list website, which is a publicly searchable list of organisations and programs that are prescribed.³⁹ We believe this list is a valuable resource and we understand it is widely used by some ISEs in responding to information requests. The list is also updated regularly. For example, we understand that every six months departments audit the list and contact ISEs to confirm their details. However, we note that many stakeholders appeared to be unaware of the ISE list and how to access or update it, if needed. We therefore suggest an ongoing focus for portfolio departments on maintaining this list and ensuring ISEs are aware of how to access it.

The prescription of non-legal programs within legal services has created uncertainty for some ISEs and poses challenges for organisations that operate under a multidisciplinary approach due to different information sharing rules applying in different parts of the service

Prescribing organisations based on function has created some uncertainty and challenges for services that have specific programs prescribed, but not the entire organisation. These challenges are heightened for services that provide a multidisciplinary service approach. This was mostly raised with us by legal services. Legal services are not prescribed under Part 5A (or Part 11) in recognition of the need to protect the privileged nature of client–lawyer communications. However, some non-legal programs within legal services have been prescribed. As the Ministerial Guidelines explain:⁴⁰

ISEs are prescribed to the extent that they provide the specified service. For example, an ISE that provides both a family violence service and a legal service should only share information from the family violence service as legal services are not prescribed. If a perpetrator discloses information to the family violence service, then that information could be shared. However if the perpetrator discloses information to the legal service only, that information cannot be shared under Part 5A because the legal service is not part of the ISE’s functions that are prescribed.

In consultation, some community legal centres explained that their services provide an integrated service delivery model (sometimes referred to as a holistic or multidisciplinary model) in which it is not possible to compartmentalise or separate the work of lawyers and other service providers in meetings with clients, or to maintain separate case records and notes. Some centres expressed concern around confidentiality and client legal privilege, notwithstanding the Act’s protection of privileged information. Legal service providers also noted that because they are not prescribed, they have not received comprehensive information and training to fully understand FVISS. Some expressed that, without training, it is difficult for legal service providers to advise clients on information sharing.

We also heard that some ISEs are uncertain about whether prescribed non-legal programs within legal service providers were also ISEs and whether they could request information from them.

We understand that the primary reason for prescribing specific programs (such as a specialist family violence program) within some legal organisations is to avoid a disparity in information sharing between programs offering similar services. We acknowledge the importance of ensuring services have equal access to relevant information to assist in assessing and managing family violence risks, and that excluding non-legal programs within legal service organisations may undermine comprehensive information sharing and result in critical risk indicators being missed. However, we also recognise that prescribing non-legal programs within certain legal services may have a negative impact and result in some clients being unable to engage in services in a holistic way.

The prescription or non-prescription of individual services is ultimately beyond the scope of our review so we do not make any recommendations on this matter. However, we support ongoing dialogue between government and community legal services to ensure due consideration is given to the need to balance the aim of ensuring equal access to relevant family violence information with ensuring clients receive holistic services.

Footnotes

1. Family Violence Protection Act 2008 (Vic), section 144P(1).
2. The Sexual Assault and Family Violence Centre, Submission No 27, p. 3.
3. Family Violence Protection Act 2008 (Vic), section 1.
4. Ibid., section 2(ab).
5. These terms are defined in section 144A of the Act. See also sections 144KA, 144KC, 144LA and 144LC, which provide for information sharing for these purposes.
6. Under section 144LC, the obligation to disclose information for a family violence protection purpose refers to the disclosure of ‘relevant’ information. Under section 144KC, the obligation to disclose information for a family violence assessment purpose does not use the term ‘relevant’ information but requires the disclosure of confidential information if the information is not excluded and is permitted to be disclosed.
7. Family Violence Protection Act 2008 (Vic), section 144A.
8. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 22.
9. See Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 38.
10. Family Violence Protection Act 2008 (Vic), section 144N.
11. Ibid., sections 144NA(b), 144NC(2)(a).
12. The Ministerial Guidelines also recognise that practitioners and services may use different terminology in practice: see Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 12.
13. The Sexual Assault and Family Violence Centre, Submission No 27, p. 3.
14. For example, see Northern Territory Domestic and Family Violence Information Sharing Guidelines (updated August 2020), p. 11, which state that practitioners should use their professional judgement to determine what is relevant information that should be shared. See also Children and Community Services Act 2004 (WA), section 23, which defines relevant information as information that is, or is likely to be, relevant to the wellbeing of a child or a class or group of children, or the safety of a person who has been subjected to, or exposed to, family violence, and any other information of a kind prescribed by the regulations.
15. Family Violence Protection Act 2008 (Vic), section 144J(3).
16. Monash Health, Submission No 13, p. 1.
17. Family Violence Protection Act 2008 (Vic), section 144I.
18. Ibid., sections 144KC, 144LC(2), 144P(6).
19. Explanatory Memorandum, Family Violence Protection Amendment (Information Sharing) Bill 2017 (Vic), p. 9.
20. Family Violence Protection (Information Sharing and Risk Management) Regulations 2018 (Vic), Schedule 1, items 36 and 37. The prescribed information sharing entities are ‘court officials’ within the meaning of section 3(1) of the Magistrates’ Court Act 1989 (Vic) and section 3(1) of the Children, Youth and Families Act 2005 (Vic). In contrast, the Magistrates’ Court of Victoria and the Children’s Court of Victoria have been prescribed as framework organisations “to the extent that it is performing a function other than a judicial or quasi-judicial function”: Family Violence Protection (Information Sharing and Risk Management) Regulations 2018 (Vic), Schedule 3, items 44 and 45.
21. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 10.
22. Family Violence Protection Act 2008 (Vic), section 144P(1).
23. Ibid., section 144P(1)–(2).
24. Explanatory Memorandum, Family Violence Protection Amendment (Information Sharing) Bill 2017 (Vic), p. 25.
25. Family Violence Protection Act 2008 (Vic), section 144P(5).
26. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021). Note that Chapter 5 addresses sharing information to assess and/or manage risk to a child victim survivor, including seeking their views. Chapter 9, which deals with consent, does not specifically address the consent of children as their consent is not required.
27. Safe and Equal, Submission No 44, p. 10.
28. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 23, Figure 1.
29. Ibid., p. 11.
30. Ibid.
31. Ibid., p. 10.
32. See, for example, Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 22, referring ISEs to the MARAM Framework for information on exercising professional judgement; p. 28, referring ISEs to the MARAM Framework for advice on developing a reasonable belief of the necessity to disclose relevant information; p. 46, referring ISEs to the MARAM Framework to assess whether there is a risk that a person may commit family violence.
33. Family Violence Protection Act 2008 (Vic), section 144D.
34. Royal Commission into Family Violence: Report and Recommendations (final report, March 2016), Vol I, p. 187.
35. Ibid.
36. Victorian Government, Regulatory Impact Statement – Family Violence Protection (Information Sharing) Regulations 2017 (final report, 15 September 2017); Victorian Government, Regulatory Impact Statement – Family Violence Protection (Information Sharing and Risk Management) Amendment Regulations 2018 (final report, 8 June 2018); Victorian Government, Regulatory Impact Statement – Family Violence Protection (Information Sharing and Risk Management) Amendment Regulations 2020 (final report, 17 October 2019).
37. Merri Health, Submission No 21, p. 3.
38. Sue Leake Elder Abuse Liaison Officer (EALO) on behalf of the EALO's part of the Integrated Model of Care for Responding to Suspected Elder Abuse (IMOC), Submission No 42, p. 2.
39. ISE List (webpage) (Accessed 31 March 2023).
40. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 38.