4. Restrictions and offences

Restrictions and offences in the Child Link Secretary's Guidelines.

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Removal of access by the DE Secretary

A key safeguard in protecting the security and integrity of the Child Link system is the power of the DE Secretary to remove access.

Under section 46N of the Child Wellbeing and Safety Act, the DE Secretary can remove access to Child Link or information on Child Link where access would pose an unacceptable risk of harm to a person or would be otherwise inappropriate in the circumstances. The DE Secretary can:

  • remove a Child Link User’s access to Child Link (in whole or in part)
  • remove access to a child’s entry from all Child Link Users.10

Removal of access is at the DE Secretary’s discretion. The DE Secretary may remove access on their own initiative or on the written request of any person.

For any restriction made by the DE Secretary (or delegate), a review process for Child Link Users and Child Link Authorisers is available. Reviews of restrictions may be requested by the relevant Child Link User (or government agency where appropriate and only when the restriction is in relation to information on Child Link). The review process will be completed at Deputy Secretary level or above for the Department. The review process will be independent and separate from the initial restrictions process, ensuring natural justice objectives. A restriction request can be made by any person, including members of the public or government agencies. Any review request must be made and submitted to DE within 20 business days from the date the requester is notified of the relevant restriction, DE does have discretion to accept late review requests on a case-by-case basis.

There are some specific instances of unacceptable risk of harm where removal of access to Child Link is mandatory and immediate. These include if a Child Link User:

  • is the subject of a substantiated investigation under the Reportable Conduct Scheme (Part 5A of the Child Wellbeing and Safety Act)
  • is currently charged with or has been convicted or found guilty of an offence under the Child Wellbeing and Safety Act
  • has a Working with Children exclusion or interim exclusion, or their Working with Children Clearance has been suspended, revoked, or expired in Victoria or an equivalent finding in another jurisdiction
  • has had Victorian Institute of Teaching registration suspended, cancelled, or expired in Victoria or an equivalent finding in another jurisdiction
  • has raised a serious concern through Child Link auditing and/or monitoring process notifications
  • is currently charged with, or has been convicted or found guilty of, an offence involving the following: physical or sexual harm or threats of physical or sexual harm, violence or threats of violence, dishonesty, or neglect in Victoria or an equivalent offence in another jurisdiction.

In circumstances where mandatory removal does not apply but there is a risk of harm, these are assessed on a case-by-case basis. Access to Child Link is suspended immediately while the case and circumstances are considered by the DE Secretary or their delegate to establish whether an unacceptable risk of harm is present.

When considering whether an unacceptable risk of harm exists, elements to be considered include but are not limited to:

  • what the risk of harm is, whether the risk of harm is to a person and whether the risk of harm is directly connected to information on, or access to, Child Link
  • if the risk of harm is in relation to a specific Child Link User’s access, whether the Child Link User would have access to such information in their day-to-day role without access to Child Link
  • the likelihood of the risk of harm occurring, the consequence of the risk of harm were it to occur, and the seriousness of these potential consequences
  • any mitigation factors or safeguards in place for Child Link relevant to the risk of harm
  • the benefit and rationale of removing access to Child Link or information on it
  • the objectives of Child Link.

Inappropriate circumstances

If an unacceptable risk of harm to a person does not exist, a restriction can also be made in relation to access to Child Link, or information on it, based on an assessment of inappropriate circumstances. Removal of access due to inappropriate circumstances is broad in nature and includes instances such as human rights considerations, conflicts of interest, privacy issues, and misconduct.

Offences and penalties

There are offences and penalties under the Child Wellbeing and Safety Act for unauthorised access, use and disclosure of information from Child Link. These are:

  • Unauthorised access to Child Link (under section 46T) is an offence where a person accesses Child Link and is not a Child Link User or person otherwise authorised to access Child Link.
  • Access to Child Link for unauthorised purpose (under section 46U), is an offence for a Child Link User or a person who is otherwise authorised to access Child Link, who accesses Child Link for an unauthorised purpose (which means accessing Child Link for a purpose other than the purpose for which the Child Link User was granted access to Child Link).
  • Unauthorised use and disclosure of confidential information contained in Child Link (under section 46V), is an offence for a Child Link User or a person who is otherwise authorised to access Child Link, to use or disclose confidential information contained in Child Link other than in accordance with the Child Wellbeing and Safety Act.
  • Intentional or reckless unauthorised use and disclosure of confidential information contained in Child Link (under section 46W), is an offence for a Child Link User or a person who is otherwise authorised to access Child Link, to use or disclose confidential information contained in Child Link in a manner that is unauthorised, and that person (a) knows this use or disclosure is unauthorised, or (b) where the person is reckless as to whether the use or disclosure is authorised.

For the offences under sections 46T, 46U, and 46V, there is a defence if the person can show they used or disclosed the confidential information in good faith and with reasonable care.

The offences under sections 46V and 46W do not apply to the following uses and disclosures of confidential information:

  • a use or disclosure made with the consent of the person to whom the information relates
  • if the information relates to a person who is incapable of giving consent to the use of disclosure, a use or disclosure made with the consent of the person's authorised representative
  • a disclosure made to a court or tribunal in the course of legal proceedings
  • a use or disclosure made pursuant to an order of a court or tribunal
  • a use or disclosure made to the extent reasonably required to enable the investigation or the enforcement of a law of this State (Victoria) or of any other State or of a Territory or of the Commonwealth
  • a disclosure made to an Australian legal practitioner for the purposes of obtaining legal advice or representation
  • a use or disclosure made as required or authorised by or under the Child Wellbeing and Safety Act or any other Act.

Offences also apply under CISS for unauthorised and intentional or reckless use or disclosure of confidential information and for impersonating an information sharing entity.11

[10] A person who is authorised under section 46H of the Child Wellbeing and Safety Act to access Child Link for the purposes of data management can also have their access to Child Link restricted. The same principles apply as per Child Link Users, except that if removal of access is required in relation to part of a child’s information, the child’s total information will be removed from their access.

[11] For more information, see the Child Information Sharing Scheme Ministerial Guidelines, published by the Department of Education in 2021.

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