Composition of the Suitability Panel | Role of the Suitability Panel | Who can make a notification? | Responsibility of out of home care services | Hearings and findings of Suitability Panel on allegation | Application to have disqualification removed | Procedures of the Suitability Panel | Summonses | Witnesses | Appeal from a Suitability Panel finding or determination
The Children, Youth and Families Act 2005 (the Act) provides the major legislative framework for children's safety, stability and development.
The Suitability Panel is established under the Act.
The Panel comprises a legal practitioner Chairperson, and other members who have a relevant tertiary qualification in law, social work, psychology, the treatment of sex offenders or in any other relevant discipline. The Chairperson and members are appointed by the Governor-in-Council under the Act. The Suitability Panel (the Panel) business is supported by an Executive Officer and other staff employed under the Public Administration Act 2004.
The Suitability Panel can decide:
- whether an out-of-home-carer (a carer) should be disqualified from being on the register of carers or
- whether a carer's disqualification should be removed
Any person may report or make a notification to the Secretary of the Department of Human Services (DHS) alleging physical or sexual abuse by a foster carer or a residential out of home carer towards a child or young person under the age of 18 years at the time of the alleged abuse. The definition of a "child" may be found in Section 3 of the Act.
Following a notification, the Secretary of DHS will decide whether to have the matter investigated. Instances of alleged abuse dating from 7 December 2002 may be investigated. An independent investigator will conduct the investigation and report to the Secretary. The Secretary will then decide whether or not to refer the matter to the Suitability Panel. The referral must be on the prescribed form.
The Out of Home Care Service must notify the Secretary of DHS within 7 days of becoming aware of allegations of physical or sexual abuse by a foster carer or an out of home carer employed by a registered Out of Home Care Service.
The Chairperson (or acting Chairperson) and 2 other members must sit on each Panel hearing.
At a hearing, the Panel must first decide whether or not the allegation that the person has physically or sexually abused the child, is proved on the balance of probabilities.
In order to decide whether or not an allegation of physical or sexual abuse is proved, the Panel must have regard to:
- (a) The allegation or allegations presented by the Secretary against the respondent;
- (b) Any evidence presented to the Panel by any of the parties, and;
- (c) Any other matters considered relevant by the Panel to its determination not including any other allegations or findings of misconduct against the person.
No adverse inference can be drawn from the failure or refusal by the person against whom the allegation has been made, to answer any question or provide any information to the authorised investigator or to the Panel.
If the Panel finds that the alleged abuse occurred, it will make a finding of misconduct and will then decide on the balance of probabilities whether the person poses an
unacceptable risk of harm to children.
If the Panel finds that a person poses an unacceptable risk to children, the Panel must find that the person be disqualified as a carer.
If the Panel has disqualified a person from being a carer, that person may apply after 12 months to the Panel to have the disqualification removed. The application must be on the prescribed form.
The application may not be made within 12 months of the disqualification taking effect unless there are exceptional circumstances.
Where application for removal of a disqualification is made, it must be made on the prescribed Form and the person will need to state:
- the reasons why the person believes the disqualification should be removed;
- how the person's circumstances have changed and why the person no longer poses an unacceptable risk of harm to children;
- if necessary, the exceptional circumstances that show why the disqualification should be removed within 12 months of the disqualification taking effect.
The Suitability Panel must decide whether or not the person should continue to be disqualified as a carer.
The Panel must consider:
- if the person's conduct resulted in charges being laid, any finding of the court, its reasons, and the sentence if one was imposed
- the person's behaviour since being disqualified
- the evidence and submissions presented by any person at the hearing
The Panel may also consider:
- if the conduct was an offence at the time it took place, whether the offence has been decriminalised since
- the period of time since the person was disqualified
- any other relevant matter
Under the Act, the Panel may adopt its procedures at its discretion and the proceedings must be conducted with as little formality as the requirements of the Act, natural justice and the proper consideration of the matter permit. In summary, the Panel is not bound by the rules of evidence and is bound by the rules of natural justice.
At all hearings the Panel must hear and determine the matter before it. The parties including the person against whom an allegation is made are entitled to be present, make submissions and be legally represented. Under the Act, the hearing must be closed to members of the public. The identity of a child or a carer must not be published or broadcast. The Panel may issue a summons.
A summons is a document which makes it compulsory for a person to come to a hearing and give evidence or produce documents at or prior to a hearing. The Panel may summons witnesses including a carer, to give sworn evidence, produce documents or both.
A person may ask the Suitability Panel to issue a summons for a witness to come and give evidence or to bring documents to a hearing or the Panel itself may do so if it needs more evidence.
If a person wants to ask the Suitability Panel to issue a summons that person will need to put in a written request to that effect to the Executive Officer of the Suitability Panel prior to the hearing allowing enough time for the Suitability Panel to properly notify that person. The person who is summonsed will be served with a summons and notified of the hearing date.
If a witness is not able to attend the hearing other arrangements may be made for the witness to give his or her evidence.
If a person fails or refuses to answer any question or provide any information to the authorised investigator or to the Suitability Panel, such refusal cannot be used against the person in the final decision reached by the Panel.
If a witness is a child, special considerations apply and special arrangements for the giving of evidence may be made.
A person is entitled to seek a review at the Victorian Civil and Administrative Tribunal (VCAT) in relation to a finding or determination of the Panel.