Chapter 2: Effectiveness of Part 5A in achieving its objectives

Introduction

Part 5A of the Family Violence Protection Act 2008 (Vic) (the Act) aims to create a cultural shift away from maintaining perpetrator privacy and towards information sharing to keep perpetrators in view and promote victim survivor safety.¹ The objects of Part 5A as set out in the Act are to:²

• provide for the sharing of confidential information between specified people and bodies for the purposes of establishing, assessing and managing risks of family violence
• promote the coordination of services by those people and bodies to further the purposes of the Act, which are to maximise safety for children and adults who have experienced family violence, prevent and reduce family violence to the greatest extent possible, and promote the accountability of perpetrators of family violence for their actions
• enable certain information sharing entities (ISEs) to obtain consolidated and updated information from the Central Information Point (CIP) for the purposes of establishing, assessing and managing risks of family violence.

This chapter addresses the extent to which Part 5A has been effective in creating a cultural shift, facilitating increased information sharing between ISEs, supporting informed decision making in managing family violence risk, and promoting service coordination. This chapter also discusses adverse effects reported in relation to Part 5A.

The impact of information sharing on victim survivors is discussed in Chapter 3. The effectiveness of Part 5A in enabling ISEs to obtain information from the CIP is discussed in Chapter 4.

Cultural change in information sharing practices

Part 5A has been effective in supporting a positive cultural shift away from maintaining perpetrators’ privacy towards sharing information to keep victim survivors safe and hold perpetrators accountable

A key principle under the Act is that ISEs should give precedence to the right to be safe from family violence over the right to privacy.³ Many stakeholders observed that since Part 5A commenced, there has been a positive cultural shift around family violence information sharing in line with this principle, with some stakeholders describing the reforms as a ‘game changer’. For example, we heard about a strong push away from withholding information to protect privacy towards recognising the safety purposes of sharing information, along with a greater awareness and desire to share information.

It was pleasing to see a cultural change observed in relation to some organisations prescribed under phase 2 of the Family Violence Information Sharing Scheme (FVISS). For example, some education and care stakeholders reported a positive culture change and an increased willingness to share information between early childhood education and care services and schools.

We heard competing views about the extent to which there has been cultural change within the health and mental health sectors. These sectors have historically held information closely to maintain patient confidentiality and trust to support the provision of health care. We heard of a significant paradigm and practice shift occurring in public hospitals and some community health services but that many general practitioners are still operating under a ‘cone of silence’ that prioritises patient confidentiality. Similarly, some stakeholders told us that mental health services are still reluctant to share information, while other stakeholders cited increased information sharing with such services.

It is important to acknowledge that it will take time to fully embed cultural change within organisations and across sectors. The impact of the COVID-19 pandemic and related challenges must also be acknowledged in considering the pace of cultural change, particularly in the health sector. These issues are discussed further in Chapter 7.

The need for cultural change was stronger in some sectors and organisations than others. Some stakeholders who reported not observing a cultural change reflected that they already had positive relationships and arrangements in place with other organisations that supported information sharing. This was particularly the case for services working in regional areas, with specialist family violence services reporting strong collaborative and information sharing practices that existed within local communities.

We also heard that information relevant to family violence risk assessment or management has been frequently shared under other legislation, with such practices often continuing today. Examples of this are included in Table 5.

Given that Part 5A was intended to complement existing privacy laws and arrangements, it is not surprising that Part 5A has had less impact where the information sharing culture was already strong or there were existing laws that authorised information sharing. The lack of observed culture change in such cases does not reflect negatively on the effectiveness of Part 5A; rather, it highlights the success of pre-existing arrangements in supporting information sharing for family violence risk assessment and management.

In considering drivers to support cultural change, stakeholders highlighted the importance of the FVISS having a legislative foundation. For example, Victoria Police told us that Part 5A was a key enabler and critical factor in improving information sharing practices and creating a pro-share rather than pro-privacy culture. The Salvation Army similarly noted:⁴

Legislative changes to information sharing have been instrumental in keeping the perpetrator in view and ensuring the ongoing safety of women and children.

The good faith protection in Part 5A⁵ was also highlighted as an important factor in supporting information sharing in good faith and with reasonable care. The Royal Australian College of General Practitioners told us that this protection is highlighted in training with general practitioners and has addressed general practitioners’ concerns about liability. Representatives from Victoria Police’s Inter-agency Information Sharing Service similarly reported that their staff are empowered to make decisions about information sharing under the protection of the good faith principle.

Although cultural change remains a work in progress in some sectors, in our view Part 5A has had, and will continue to have, a significant positive impact in changing the culture of family violence information sharing. The legislative basis of the FVISS, and the good faith protection, have increased practitioner confidence in requesting and disclosing information and helped to remove barriers to information sharing. We do not consider that any legislative changes are required to support further culture change at this time.

Facilitating increased information sharing

Confidential information can be shared under the Act either in response to a request (referred to in this section as ‘reactive’ sharing) or voluntarily (referred to in this section as ‘proactive’ sharing), provided that the information is not excluded information and that relevant consent thresholds have been met. This is shown in Box 4 below.

The volume of reactive information sharing is increasing, and although some organisations face challenges in obtaining information, the obligations under Part 5A are sufficiently strong to support organisations to advocate for greater access to information in response to a request

Most stakeholders observed that the volume of reactive information sharing has steadily increased throughout the third to fifth years of operation of Part 5A. As shown in Figure 8, 70 per cent of submission responses to the Monitor addressing this question indicated they had observed an increase in reactive sharing.

Increased reactive sharing was noted in relation to various sectors. For example, the Municipal Association of Victoria reported that Part 5A is “being used extensively in the service sector enabling the [maternal and child health] and children’s services to request and obtain information”.⁶ Family violence peak bodies similarly reported increased reactive information sharing from organisations to specialist family violence services, while Monash Health noted that the number of requests they received had doubled from 2021 to 2022.⁷

Organisational data about the volume of requests received from July 2020 to June 2022 reinforced stakeholder observations. Although a small number of organisations recorded a relatively constant volume of information sharing requests, most organisations reported a steady increase during this period. This is illustrated in Figure 9.

Notwithstanding the increased volume of reactive information sharing, we heard mixed views from stakeholders about whether organisations consistently receive the information requested.

Some organisations shared positive experiences. For example, practitioners from Uniting Vic.Tas in Shepparton told us that they often request information from Victoria Police and other services working with their clients, with workers able to obtain the information they need. The organisational data we reviewed also tends to support the view that organisations are generally receiving the information they request, with relatively low percentages of requests being declined. However, most of this data was from government departments and agencies, which generally handle high volumes of requests and are therefore more likely to be familiar with the Act’s requirements. It is therefore not possible to extrapolate that the same is true across the service sector more broadly.

Other stakeholders cited challenges in receiving information in response to a request. Challenges included organisations refusing to provide information without justification or not responding to a request at all. These examples highlight that some organisations may not be fully complying with the Act’s requirements, including the obligation to disclose relevant information and the obligation to provide reasons for any failure to comply with an information request.⁸ Organisational noncompliance may limit the effectiveness of Part 5A in achieving its objectives in the absence of any recourse where an ISE does not share information as required.

To maximise the effectiveness of Part 5A, we considered whether the Act should be amended to include a stronger monitoring or compliance approach to address these challenges and promote compliance with the Act. For example, this could include a conflict resolution mechanism to resolve disagreements between services about an information request, or a penalty where ISEs fail to provide requested information without a proper justification.

However, we do not recommend these approaches. In our view, this may unnecessarily increase the regulatory burden on ISEs by requiring them to take part in a conflict resolution process and/or justify at length why they have not provided information in a particular case. This would take practitioner time away from direct service provision or responding to other information requests, which could create delays in the sharing of relevant information. This approach may also foster an adversarial culture between organisations, which is contrary to the Act’s objective to promote service coordination.

Further, we believe that challenges faced by stakeholders in obtaining information most likely stem from a lack of knowledge or understanding about the obligations under Part 5A within some organisations, rather than deliberate noncompliance. Legislative change is unlikely to address these issues. We consider that a better approach is a continued focus on education and training for all ISEs on the legal requirements under the Act and how compliance supports victim survivor safety and perpetrator accountability. We also strongly support an active role by departments in supporting their funded agencies that are experiencing challenges, including by helping them to work through challenges and advocate for access to relevant information where appropriate.

Some case studies shared by stakeholders illustrated that an initial reluctance to share can sometimes be overcome by referring to the existing obligations in Part 5A. For example, we heard about a stakeholder managing a high-risk perpetrator who contacted a housing organisation for a perpetrator’s address. The worker at the housing organisation initially did not want to share the information. After some discussions and an explanation about the information sharing requirements, the worker shared the information with the requester.

This supports the view that the existing obligations in Part 5A are sufficiently strong without an additional compliance mechanism. As explained by The Women’s Services Network, the provisions support organisations to advocate for access to information:⁹

While information sharing activities have always occurred, refuge staff can now more strongly advocate when requesting information as a Risk Assessment Entity, if they need to do so. The scheme adds weight to their request and provides a common language with which to talk about the benefits of having the information.

Advocacy of this kind is likely to further support compliance with the Act in future as organisations increasingly understand their obligations under Part 5A. As with cultural change, this will likely take more time to be fully realised.

Although proactive sharing of relevant information is increasing, it is not occurring as often as it should, which is limiting Part 5A’s effectiveness

Many stakeholders also reported an increase in proactive information sharing from July 2020 to June 2022. Although slightly lower than the percentage of responses that reported an increase in reactive sharing, 62 per cent of submission responses observed an increase in proactive information sharing during this period. This is shown in Figure 8 above.

This observation was shared by several stakeholders we consulted during the review. For example, the Victim Services, Support and Reform unit in the Department of Justice and Community Safety noted a gradual increase in proactive sharing from other ISEs, particularly as trust increased and communication became more streamlined. We also heard that proactive sharing happens frequently between services within the same organisation or services from different organisations that are co-located. For example, a practitioner we consulted shared that within their organisation, services in the alcohol and other drugs (AOD) and children, youth and families programs use the FVISS in a proactive way to support a ‘shared client’ approach.

Proactive information sharing also occurs in the broader context of an information request. For example, Victoria Police staff explained that when they respond to a request, they sometimes share information that was not specifically requested but is nonetheless highly relevant for a family violence assessment or protection purpose.

However, many stakeholders told us that, in their experience, proactive information sharing is still developing or is rarely occurring. For example, we were told that most public hospitals are still building the concept of proactive sharing and being open-minded about when and what information can be proactively shared, with this being an area of ongoing capability building. Other stakeholders similarly reflected that services nearly always need to request information, with little proactive information sharing occurring between services.

Stakeholders also identified barriers to proactive information sharing. For example, the Statewide Family Violence Integration Advisory Committee told us that some family violence services are working to develop the infrastructure to support proactive sharing. We also heard from stakeholders that although there is a genuine desire to proactively share information, it is often difficult for services to know who to share information with.

In part, this may result from a misunderstanding within some organisations (including services supporting victim survivors) about the role of perpetrator services in keeping victim survivors safe. For example, Relationship Matters Counselling and Mediation highlighted the need for a greater understanding of the role of men’s behaviour change programs in supporting ongoing risk assessment and management.¹⁰

When this role is not fully understood, organisations may be less likely to contact perpetrator services to discuss their role in supporting the victim survivor and to enable proactive information sharing between the two services. Challenges can also be compounded where a victim survivor moves home and seeks services in a different geographical location, where local providers do not know the perpetrator or hold perpetrator information.

Proactive information sharing is an important part of managing a victim survivor’s safety. Services should have access to all relevant information to assess and manage a family violence risk, including information they may not know to ask for. The importance of proactive information sharing is reflected in the Family Violence Multi-Agency Risk Assessment and Risk Management (MARAM) Framework, with one of the 10 responsibilities for risk assessment and management referring to proactive information sharing.¹¹ This is shown in Figure 10.

On balance, we believe proactive sharing is not occurring as often as it should, which is limiting the effectiveness of Part 5A in facilitating information sharing. We considered options for legislative change to further strengthen proactive sharing. This included introducing an obligation (rather than a permission) for an ISE to proactively share confidential information, in appropriate cases and to the extent possible. For example, this could apply where a service holds relevant information and is aware of another service that could use the information to assess or manage a family violence risk.

Although we believe this would send a strong message to ISEs about the importance of proactive sharing, we do not recommend changing the Act in this way. Noting our understanding that barriers to proactive sharing predominantly stem from a lack of knowledge of who to share information with – and not a lack of desire to share information – we do not believe this reform would be effective in increasing proactive sharing.

However, we believe it is important to support organisations to proactively share more frequently. We therefore recommend that the Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (the Ministerial Guidelines) be amended to reinforce the ability of ISEs to proactively share information and to note the policy basis for including proactive sharing in the Act. Although the Ministerial Guidelines currently refer to the ability of ISEs to proactively share (and include a case study on this),¹² there is little guidance available to ISEs on when proactive sharing may be appropriate, or how to proactively share information. As noted above, the Ministerial Guidelines are intended to provide guidance to ISEs on internal policies, systems and practices to ensure information is shared appropriately and responsibly. In our view, appropriate and responsible information sharing includes proactively sharing relevant information to the extent possible to support risk assessment and management activities. We believe that adding further commentary to the Ministerial Guidelines would emphasise that the Act supports proactive sharing.

As part of these changes, we consider it would be beneficial to note that ISEs, when reactively sharing in response to a request, may also include relevant information about services that the victim survivor and perpetrator are engaged with. Although we acknowledge this will not always be relevant information and practitioners will always need to exercise their professional judgement, we believe this would support services in understanding who they may be able to proactively share information with. Changes to the Ministerial Guidelines could also be supported through further training and other implementation activities.

There has been very little unauthorised information sharing under Part 5A

A key principle under Part 5A is that organisations should only share information to the extent that it is necessary to assess or manage a family violence risk or to hold a perpetrator accountable.¹³ This is important to avoid arbitrarily interfering with an individual’s right to privacy and reputation under the Charter of Human Rights and Responsibilities Act 2006 (Vic).¹⁴ To promote this principle, the Act makes the unauthorised use or disclosure of confidential information an offence.¹⁵

It was pleasing that stakeholders overwhelmingly reported not being aware of any unauthorised information sharing under Part 5A. As shown in Figure 11, 88 per cent of submission responses to the Monitor addressing this question noted this. This was also reinforced through our stakeholder consultations and our analysis of organisational data about complaints under Part 5A, although we acknowledge that the absence of complaints does not necessarily mean there has been no unauthorised information sharing.

Where inappropriate information sharing was noted in submission responses or during consultations, stakeholders cited concerns that some organisations:

• share more information than is required, such as clinicians providing entire patient files rather than redacting information that is not relevant
• make overly broad ‘fishing’ requests for information that do not identify the relevant risk information being sought, such as requests for an entire client file
• seek information for other purposes unrelated to family violence risk assessment or management – for example, seeking confidential information to use in legal proceedings or seeking information about a person’s capacity to parent a child where there were no current or historical concerns about family violence
• request information when they are not prescribed as an ISE, such as receiving requests directly from a patient or from a legal practitioner.

As some stakeholders recognised, it is likely that services that share more information than required are doing so in good faith. A less developed understanding of family violence dynamics and risks may also contribute to this, particularly for services that are yet to fully align with the MARAM Framework. We also acknowledge that views about the relevance of information can reasonably differ between different practitioners exercising their professional judgement.

Further, although it is a concern to hear of overly broad requests or requests made for inappropriate purposes, we were pleased to hear that most organisations recognised these requests as being outside the scope of Part 5A and they therefore did not share the information. This supports the view that there has been relatively little unauthorised information sharing under Part 5A. Some stakeholders also told us that the frequency of these types of requests is reducing.

In our view, increasing MARAM alignment across the service sector will assist with achieving consistency in organisations’ understanding of what information is risk-relevant and can be requested or shared under Part 5A. MARAM alignment is discussed further in Chapters 5 and 6.

Supporting informed decision making

By increasing services’ access to relevant information, Part 5A is supporting services to make more informed decisions about family violence risk

A key objective of facilitating greater information sharing is to ensure services can make better informed decisions to promote victim survivors’ safety. Most stakeholders agreed that the Act provides enough scope and authority for services to collect, request, use and disclose relevant information to establish, assess and manage family violence risks. Of the 25 submission responses to the Monitor addressing this question, 19 responses (76 per cent) said there is sufficient scope and authority in the Act. This is illustrated in Figure 12.

Of those responses that did not consider that the Act provides sufficient scope and authority, submissions cited a failure of services to share information as the problem. In our view, these challenges relate to noncompliance with the Act rather than a legislative barrier to information sharing. We have discussed issues associated with noncompliance above. The non-prescription of most private service providers and Commonwealth-funded services (such as aged care and disability services) was also cited in submissions as a limitation in the Act. This is discussed further in Chapter 7.

Most stakeholders told us that, combined with MARAM (discussed further in Chapters 5 and 6), Part 5A has supported better decision making about family violence risk. It has allowed services to better understand a family’s situation by painting a clearer and more comprehensive picture of perpetrators, including their patterns of behaviour. It has also supported staff to have more in-depth conversations about risk and allowed for better judgements about risk and safety.

These benefits were particularly noted by specialist family violence services. For example, Safe and Equal explained that greater access to perpetrator information has supported more accurate and detailed risk assessments and resulted in better risk management.¹⁶ Organisations working with perpetrators similarly highlighted the value of information in supporting their work.

The impact of information sharing on risk mitigation is further illustrated in the case study in Box 5 below.

Improved risk management was noted as a positive development in relation to supporting older victim survivors experiencing abuse. For example, one submission noted that information sharing under Part 5A has, in some cases, provided the first opportunity to identify and name elder abuse for a victim survivor, thereby enabling them to access specialist assistance and support.¹⁷

We also heard that increased information sharing has had a positive impact on court processes and proceedings. The Magistrates’ Court of Victoria reported the following:

• Many of the agencies participating in regular coordination and planning meetings are ISEs. These agencies are better informed about risk and therefore in a stronger position to provide clear information to support planning for the safety of litigants coming to court.
• Family violence practitioners working at the court are having more purposeful engagement with applicants, particularly when MARAM risk assessments are shared with them.
• Parties are better informed and can submit more comprehensive risk information to the court, including information about a person’s history and connection with services.

However, we heard contrasting examples of a lack of information sharing in practice between organisations involved in proceedings before the Children’s Court of Victoria. Victoria Legal Aid provided two case studies where family violence information held by Victoria Police and the Magistrates’ Court of Victoria was either not requested by Child Protection or the information was requested but not put before the court. In our view, these examples may illustrate inconsistencies with Child Protection’s family violence practices more than limitations within the Act. We discussed stakeholder concerns about Child Protection in our previous reports, and it is not necessary to comment further here. We also note that other parties may similarly have an obligation to put relevant information before the Children’s Court.

Overall we consider that the provisions in Part 5A have helped services to make better informed decisions about the identification, assessment and management of family violence risks. We do not consider that any legislative changes are required to improve the Act’s effectiveness in this regard.

Service coordination and collaboration

Part 5A is supporting collaboration and service coordination, and a greater focus on proactive information sharing will further strengthen collaborative and coordinated practice

Part 5A aims to promote service coordination to further the purposes of the Act, which include to promote the safety of victim survivors and hold perpetrators to account. It was beyond the scope of the legislative review to consider whether any increased service coordination has led to increased victim survivor safety and greater accountability for perpetrators. This section therefore focuses on the extent to which Part 5A has supported increased collaboration and coordination.

We highlighted the importance of service coordination in our report, Crisis Response to Recovery Model for Victim Survivors. As noted in that report, some stakeholders highlighted a lack of coordination between sectors, including the mental health, AOD, housing and family violence sectors.¹⁸

Some stakeholders reiterated this sentiment during this review. For example, the Municipal Association of Victoria noted the need for case sharing between family violence programs and other partners such as AOD services, mental health services and corrections.¹⁹ Other stakeholders similarly highlighted their experience of a continuing siloed approach to service delivery. The need for services beyond the family violence sector to fully implement the FVISS and MARAM reforms was also raised in consultations as a barrier to services collaborating effectively, as was a lack of resourcing.

However, it was pleasing to hear that many other stakeholders believe there has been greater collaboration between services across sectors in the past few years. This was reflected both in stakeholder consultations and submission responses. As shown in Figure 13, 73 per cent of submission responses addressing this question had observed increased collaboration to support the delivery of coordinated services. For example, The Salvation Army noted:²⁰

Since the inception of the FVISS and CIP we have seen a noticeable difference in how we are able to collectively coordinate high quality care for the families we work with. The previous fragmented system has been sidelined for one that now works together to collate information in relation to risk and safety, allowing us to advocate strongly for our clients.

Increased coordination and collaboration were noted across various sectors, including in phase 2 sectors such as education and care services and health services. For example, Monash Health noted increased coordination between schools and mental health services and reflected that the capacity to collaborate and share information had also helped with discharging patients to general practitioner care.²¹ The Royal Australian and New Zealand College of Psychiatrists Victorian Branch similarly highlighted that:²²

[I]nformation sharing has been paramount to strengthening how mental health services have interacted with others, creating a more holistic approach to the prevention and early intervention of [family violence], and subsequent recovery.

The branch went on to express the view that Part 5A has sufficiently enhanced service coordination by improving services’ response to information requests.²³

Berry Street’s Take Two Therapeutic Family Violence Services also noted the impact and importance of increased information sharing in supporting coordination, reflecting that:²⁴

The information sharing schemes have made information more accessible and once that channel is open there continues to be collaboration and voluntary sharing of information regarding the assessment of risk and safety.

Some stakeholders said that although they had observed greater collaboration, this was often based on pre-existing relationships rather than being a new development related to Part 5A. For example, although The Sexual Assault and Family Violence Centre’s practitioners identified greater collaboration with schools, they noted that “the level of collaboration and the effectiveness of sharing information is still based on relationships built with school professionals and not consistent across schools in general”.²⁵ As discussed earlier in relation to cultural change, we also heard about strong pre-existing relationships in regional communities, with these relationships supporting collaboration and a whole service system response to family violence.

Although there is more to be done to achieve a fully coordinated service system, we consider that Part 5A will continue to support collaboration and service coordination in the same way that it is supporting cultural change and facilitating information sharing. We believe our recommended changes to the Ministerial Guidelines to promote proactive information sharing will also support greater collaboration. We do not recommend any further legislative reform.

Adverse effects of Part 5A

Formalised information sharing processes introduced as part of implementing Part 5A have sometimes contributed to delays in services obtaining critical information and negatively impacted on services’ ability to assess risk and safety plan

Many organisations have introduced new processes and forms as part of implementing Part 5A. For example, this has included a centralised email inbox or information sharing team that handles requests and/or a requirement for requests to be made in writing through a request form. The Act does not mandate these processes, enabling both written and verbal information sharing. However, these processes have often been introduced to support organisations to comply with the Act. For example, Victoria Police explained that its processes allow for the appropriate release of information and proper record keeping, which helps ensure consent requirements are met and documented and therefore protects individuals’ right to privacy.

In some cases, increased formality has contributed to delays in services receiving critical information. Stakeholders reflected that, whereas in the past they could obtain information (under existing privacy authorisations) via established relationships through a quick phone call, this was no longer possible because services are now required to go through formal processes. The resulting delay in receiving information has impacted on the ability of services to effectively assess risk and prepare safety plans, which can put victim survivors at increased risk of harm. For example, Safe and Equal noted in relation to delays generally:²⁶

We are aware of delays of up to a month after a FVISS request has been made, which can significantly hinder risk management and victim-survivor safety. This is particularly true for the periods when victim survivors are engaging with specialist family violence services because these are often the time of increased and dynamic risk.

Although not a requirement of the Act, the increased formality that has been introduced as a consequence of Part 5A may undermine this objective. However, it is also important to acknowledge that increased formality is likely only one contributing factor to delays in providing information. Stakeholders noted that connected challenges include:

• substantial information for an ISE to review before responding to a request
• a high volume of information requests being received by ISEs
• difficulties understanding what information to share or what an ISE’s obligations are
• lack of resources and staff to respond to requests.

We considered options for legislative reform to address challenges related to delays. This included considering amendments to the record-keeping requirements in the Family Violence Protection (Information Sharing and Risk Management) Regulations 2018 (the Regulations), noting that these requirements may have contributed to the adoption of formal processes and that they take staff time to comply with. The general record-keeping requirements are outlined in Figure 14.

Additional obligations apply to confidential information shared about adult and child victim survivors and third parties, and where ISEs decline a request or receive a complaint.²⁷ For example, when sharing information about an adult victim survivor, an ISE must record whether information was disclosed with the victim survivor’s consent, and if consent was not obtained, the reason for this and whether the victim survivor’s views were sought in relation to the information sharing.²⁸

The record-keeping requirements were the subject of a comprehensive Regulatory Impact Statement (RIS) in 2017.²⁹ According to Family Safety Victoria, most of the feedback they received in response to the RIS supported the intent of the record-keeping obligations, although some stakeholders were concerned that the obligations may be onerous and discourage information sharing. In drafting the Regulations, Family Safety Victoria sought to balance competing policy considerations, including having the record-keeping obligations reflect existing good practice, promoting the agency of victim survivors, avoiding confusion around what information has been shared, and assisting ISEs to respond to complaints.

In our view, the Regulations strike an appropriate balance between minimising the administrative burden on ISEs while ensuring transparent and accountable information sharing practices. We also support the intent of the Regulations in promoting victim survivor agency where information sharing occurs without consent, including the requirements for records to be kept about whether an ISE sought a victim survivor’s views on information sharing and the reasons for not obtaining consent. These requirements ensure ISEs can justify why consent was not obtained or why a victim survivor’s views were not sought before sharing information. This is particularly important in light of the feedback we received from survivor advocates during the review (discussed further in Chapter 3). We therefore do not recommend any amendments to the record-keeping obligations in the Regulations.

However, we believe there would be value in encouraging ISEs to consider how to balance compliance with their record-keeping obligations with the need to share information promptly. The Ministerial Guidelines currently state:³⁰

An ISE should always prioritise requests for information under Part 5A and respond to requests in a timely manner. In particular, where a serious threat has been identified, ISEs should respond to those requests for information without delay.

Although we support these statements, we consider that further guidance is needed to ensure information is provided while it has the greatest value. In our view, part of sharing confidential information appropriately and responsibly is ensuring the information can effectively contribute to risk assessment and management activities. We therefore recommend that additional information be included in the Ministerial Guidelines to emphasise the importance of sharing information in a timely manner. We suggest that a case example be used to show how ISEs could share information verbally in urgent cases and record the necessary information after the fact. We believe there would be benefit in the case example providing guidance to ISEs that have adopted central information sharing teams or other formal processes. Case examples should be developed in conjunction with ISEs that receive a high volume of requests, such as the Magistrates’ Court of Victoria, Victoria Police and Corrections and Justice Services within the Department of Justice and Community Safety.

We also considered potential amendments to the Act to further promote timely responses. Some stakeholders we consulted supported introducing a maximum timeframe in which information sharing requests would need to be responded to, although this was not supported by others. We do not support the inclusion of a maximum timeframe. The period within which an ISE can share information will likely differ depending on the size of the organisation, the volume of requests they receive and the level of practitioner understanding about family violence risk. Further, the urgency of information requests will differ depending on the circumstances, and a maximum timeframe may limit the extent to which services can prioritise urgent requests.

An alternative option is to introduce a requirement for ISEs to share information in response to a request within a reasonable period. We recommend the Act be amended to include a requirement of this nature. We consider it is appropriate to include this obligation in the Act rather than the Regulations or Ministerial Guidelines, recognising that anything that imposes an obligation on an individual or organisation should be contained in primary legislation.

Requiring information to be provided in a reasonable timeframe will provide enough flexibility to reflect organisational capacity and urgency while still sending a strong message about the importance of prioritising information sharing that is needed to effectively manage family violence risks. In considering reasonableness, we recommend that ISEs be required to consider various factors. For example, this could include the reason for the request, the urgency of the request and whether information sharing may result in an assessment that a victim survivor is at serious risk of harm.

We also recommend that the Ministerial Guidelines include guidance to support ISEs to understand the timeliness obligation. While acknowledging that what is reasonable will ultimately depend on the individual circumstances and that professional judgement will be required, we consider that general guidance could be provided to support the implementation of our recommended provision in the Act. For example, case studies could be developed illustrating what may be a reasonable timeframe in different circumstances. These should be developed in consultation with stakeholders. By way of illustration only, guidance may suggest that where information is urgently needed to determine whether to put a victim survivor into emergency accommodation, a reasonable timeframe may be within 24 hours.

We acknowledge that introducing a timeliness requirement into the Act would be most effective if coupled with a new monitoring or compliance approach, which we do not support for the reasons noted above. Notwithstanding this, we believe there would be value in introducing a standalone timeliness requirement as a way of strongly reinforcing the importance of timely information sharing. We also acknowledge the need for ISEs to be adequately resourced to respond to requests in a reasonable timeframe, and that this may require an examination of funding in conjunction with legislative change.

Other stakeholder feedback

Submission responses identified barriers and challenges in sharing information, collaborating with others and complying with the Act’s requirements. This is shown in Figure 15.

Although submissions cited legal barriers or challenges, in our view most of the barriers or challenges detailed were operational or practical challenges or issues related to implementation rather than stemming from the provisions in Part 5A. The identified issues are discussed further in Chapter 7.

Footnotes

1. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 7; Victoria, Parliamentary Debates, Legislative Assembly, 23 March 2017, p. 931 (Martin Pakula, Attorney-General).
2. Family Violence Protection Act 2008 (Vic), section 144H.
3. Ibid., section 144J(2)(b).
4. The Salvation Army, Submission No 30, p. 2.
5. Family Violence Protection Act 2008 (Vic), section 144PA.
6. Municipal Association of Victoria, Submission No 38, p. 6.
7. Safe and Equal, Submission No 44, p. 9; No To Violence, Submission No 26, p. 5; Monash Health, Submission No 13, p. 2.
8. Family Violence Protection Act 2008 (Vic), sections 144KB(3), 144KC, 144LB(3), 144LC.
9. The Women’s Services Network, Submission No 22, p. 1.
10. Relationship Matters Counselling and Mediation, Submission No 11, p. 3.
11. Victorian Government, Victorian Government Gazette, No S 445, 25 September 2018, p. 6.
12. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), pp. 29-30.
13. Family Violence Protection Act 2008 (Vic), section 144J(2)(c).
14. Charter of Human Rights and Responsibilities Act 2006 (Vic), section 13.
15. Family Violence Protection Act 2008 (Vic), sections 144R, 144RA.
16. Safe and Equal, Submission No 44, p. 12.
17. 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, pp. 1–2.
18. Family Violence Reform Implementation Monitor, Monitoring Victoria’s Family Violence Reforms: Crisis Response to Recovery Model for Victim Survivors (final report, December 2022), p. 37.
19. Municipal Association of Victoria, Submission No 38, p. 7.
20. The Salvation Army, Submission No 30, p. 2.
21. Monash Health, Submission No 13, p. 2.
22. Royal Australian and New Zealand College of Psychiatrists Victorian Branch, Submission No 37, p. 2.
23. Ibid.
24. Berry Street – Take Two Therapeutic Family Violence Services, Submission No 25, p. 2.
25. The Sexual Assault and Family Violence Centre, Submission No 27, p. 7.
26. Safe and Equal, Submission No 44, p. 9.
27. Family Violence Protection (Information Sharing and Risk Management) Regulations 2018, regulations 11–14.
28. Ibid., regulation 11(a)–(b).
29. Victorian Government, Regulatory Impact Statement – Family Violence Protection (Information Sharing) Regulations 2017 (final report, 15 September 2017).
30. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 20.