Some of the laws and other obligations that your agency must comply with are specific to your agency or type of agency, for example:
- the Zoo is established under the Zoological Parks and Gardens Act 1995
- catchment management authorities are established under the Catchment and Land Protection Act 1994
Other laws and other obligations apply across the Victorian public sector. These are commonly known as ‘whole of government’ laws and obligations. They usually apply to all or most DELWP agencies.
Your agency must ensure that it is aware of which whole of government obligations apply to it.
- Your agency should have a Legislative compliance policy.
- This model policy might assist you in drafting a policy for your agency.
Some examples of whole of government laws that may apply to your agency (and may have related obligations such as regulations, standards, codes, government policies, etc.) include:
|Good Governance||Public Administration Act 2004||Sets the basic good governance standards for Victoria’s ‘public entities’ (almost all DELWP agencies).|
|Integrity||Protected Disclosures Act 2012||Victoria has integrity laws and independent public watchdogs e.g. Independent Broad-based Anti-corruption Commission. Almost all DELWP agencies must comply.|
|Privacy and Data Protection Act 2014|
|Financial Management||Financial Management Act 2004(FMA)||Some DELWP agencies are subject to the FMA (usually those with an annual report that is tabled or reported in Parliament by the minister).|
|Good Administration||Public Records Act 1973 (PRA)||Almost all DELWP agencies have record keeping requirements under the PRA.|
|Transparency||Freedom of Information Act 1982 (FOI)||The FOI Act applies to almost all DELWP agencies.|
|Human Rights||Charter in the Charter of Human Rights and Responsibilities Act 2006||Almost all DELWP agencies must comply with the Charter.|
|Child Safe Standards in the Child Wellbeing and Safety Act 2005||Your agency needs to determine whether it must comply with the Child Safe Standards or is exempt.|
In 2016, new Child Safe Standards were published under Part 6 of the Child Safety and Wellbeing Act 2005. Their purpose is to ensure that ‘applicable entities’ to which the standards apply have a culture, policies and procedures that ensure the safety of children is promoted, child abuse is prevented, and allegations of child abuse are properly responded to.
The Commission for Children and Young People has an educative, advice, oversight and enforcement role in relation to the standards. In addition, if the standards apply to your agency (see below) then as part of DELWP’s oversight and support role we can ask your agency for information about how your agency is complying with these obligations.
Note the standards do not change the responsibility to report child abuse to the police and to conduct working with children checks
What are the standards?
There are seven standards which are underpinned by three key principles Identifying and reducing risk (standard 6) is a good starting point for implementing the standards and can inform the development of a child safe policy (standard 2) and a code of conduct (standard 3).
|Standard 1||Strategies to embed an organisational culture of child safety, including through effective leadership arrangements.|
|Standard 2||A child safe policy or statement of commitment to child safety.|
|Standard 3||A code of conduct that establishes clear expectations for appropriate behaviour with children.|
|Standard 4||Screening, supervision, training and other human resources practices that reduce the risk of child abuse by new and existing personnel.|
|Standard 5||Processes for responding to and reporting suspected child abuse.|
|Standard 6||Strategies to identify and reduce or remove risks of child abuse.|
|Standard 7||Strategies to promote the participation and empowerment of children.|
Do the standards apply to my agency?
There are over 50 DELWP agencies and over 1,200 small (category 3) committees of management. Whether your agency is an ‘applicable entity’ that must work towards having the standards in place will depend on two key questions:
- Is it an ‘applicable entity’? Your agency will be an ‘applicable entity’ if it falls within the types of organisations listed in the schedules to the Act. There is a strong focus on health and education organisations. However, there are also other types such as ‘constituted by or under any Act and have functions of a public nature’. All DELWP agencies have functions of a public nature and almost all are constituted by or under an Act.
- If so, is it ‘exempt’ from compliance with the standards? Although your agency is almost certainly an ‘applicable entity’, it may be exempt under section 19 of the Act from complying with the standards. The most likely grounds for exemption are those set out in section 22 of the Act.
Whilst many DELWP agencies will be exempt from the standards under section 22 of the Act, this requires careful consideration to determine. For example, your agency will not be exempt if it:
- engages a child (a person less than 18 years of age) as a staff member, work experience student, or volunteer
- provides services specifically (not necessarily exclusively) for children - which may, for example, include certain events and activities for members of the public, or
- provides facilities specifically (not necessarily exclusively) for use by children who could be considered to be under its ‘supervision’.
Further information is available from the Commission for Children and Young People (e.g. Guides and tip sheets) and the Department of Health and Human Services (for example An Overview of the Victorian Child Safe Standards and the Child Safe Standards Toolkit).
Foreign arrangement obligations
Information and guidance material on the Department of Environment Land Water and Planning (DELWP) and portfolio entities compliance obligations under the Commonwealth Government’s Foreign Relations (State and Territory Arrangements) Act 2020 (the Act).
The Foreign Arrangements Scheme (the scheme) was established under Australia’s Foreign Relations (State and Territory Arrangements) Act 2020 (Cth) to provide Commonwealth Government oversight of foreign arrangements entered by states, territories, local governments and public universities.
The scheme provides the Foreign Minister with the power to prohibit a negotiation or foreign arrangement if satisfied that it is likely to adversely affect Australia’s foreign relations or be inconsistent with Australia’s foreign policy. Previous decisions do not bind the Foreign Minister, and there are no grounds for review.
Foreign arrangements are written arrangements, agreements, contracts, understandings or undertakings between State and Territory entities and foreign entities.
DELWP and our portfolio entities have reporting and compliance obligations when negotiating, entering, or varying arrangements with certain foreign entities.
The Department of Premier and Cabinet (DPC) coordinates Victoria’s compliance with the Act (excluding local governments and public universities) and coordinates liaison with the Commonwealth Department of Foreign Affairs and Trade (DFAT).
DELWP coordinates whole of portfolio compliance with the Act and can provide assistance and guidance on your compliance obligations.
Foreign arrangements include written arrangements, agreements, contracts, memoranda of understanding and undertakings, whether or not legally binding.
Core foreign arrangements are with foreign countries and foreign national governments, departments and agencies.
Non-core foreign arrangements are with foreign subnational jurisdictions, foreign subnational governments, departments and agencies, foreign authorities established for a public purpose, and foreign universities without institutional autonomy.
Core foreign entities include a foreign country, its national government and a department or agency of the national government.
Non-core foreign entities include sub-national level governments in foreign countries, departments of these sub-national level governments, public entities established under the authority of a foreign country or its national or sub-national government, universities without institutional autonomy and any other entities prescribed by the rules.
The Act does not apply to corporations that operate on a commercial basis (including government corporations). Please refer to the DFAT fact sheet for information on how to assess whether a corporation operates on a commercial basis.
DELWP, through the Department of Premier and Cabinet (DPC), is required to:
- seek the Foreign Minister’s approval to negotiate, enter into or vary arrangements with national governments, departments or agencies (core foreign arrangements)
- notify the Foreign Minister of a proposal to enter into, entry into, and variation of arrangements with subnational governments and universities (non-core foreign arrangements).
DPC supports a whole of government process for departments and agencies to use for prospective foreign arrangements.
DELWP coordinates whole of portfolio compliance with the Act and can provide assistance and guidance about your compliance obligations under the scheme and the internal reporting process covered in this document. If you have any questions, please contact your nominated relationship manager in the first instance.
Under DPC’s process, all proposals to negotiate and enter a core foreign arrangement, or enter a non-core foreign arrangement, must be submitted to DPC and receive a formal response before departments and agencies can proceed.
The proposal must:
DPC will then manage the process for reviewing the proposal and submitting the material to DFAT for consideration, as well as communicating outcomes back to departments/agencies.
Further information on the process, including a helpful flowchart and associated timeframes for decision making, can be found on the DPC Foreign Arrangement process and checklist (PDF, 1.7 MB).
☐ Seek advice from DELWP via your relationship manager if you are uncertain if what you are looking at is a current or prospective foreign arrangement.
☐Seek internal legal advice if you are uncertain of whether the arrangement is covered by the Act.
☐ Inform DELWP via your relationship manager of the prospective arrangement, highlighting any particular risks or timeframes that need to be managed.
Page last updated: 08/03/22