Queensland, like many other Australian jurisdictions, is in the process of reforming and strengthening its child protection legislation. A recent focus of the reform has been the information sharing scheme contained within the Chapter 5A (“Service delivery coordination and information sharing”) of the Child Protection Act 1999 (Qld) (Child Protection Act). The amendments to Chapter 5A aim to create an information sharing regime that holds the safety, wellbeing and best interests of children as paramount. This article will explore the amendments made to Chapter 5A, with a specific focus on the changes made to Part 4 (“Information Sharing”).

What is the Purpose of Information Sharing?

As pointed out in Child Safety Service’s Information Sharing Guidelines, the sharing of information can assist families to receive support when needed and enable collaboration between services to help ensure the safety and wellbeing of children. The new framework enables a wide range of government and non-government agencies that provide services to children to share information with each other and to protect the safety, wellbeing and best interests of children.

What Information Can be Shared and Who Can Share it?

For the purposes of Chapter 5A, “information” means personal information (including facts or opinions) about an individual, from which their identity can be ascertained. Chapter 5A enables this kind of information to be shared in certain circumstances between “prescribed entities”, “service providers” and the Department of Child Safety, Youth and Women (Child Safety Services). The terms “prescribed entity” and “service providers” are defined in section 159M of the Child Protection Act.

Principals of non-state schools are included within the term “prescribed entity”. The Department of Education, and the Queensland Police Service are also included.  The term “service providers” refers to those providers that offer services to children or families, that are licensees under the Child Protection Act or that are independent Aboriginal and Torres Strait Island entities for Aboriginal or Torres Strait Island children.

One of the legislative principles underpinning Chapter 5A is that prescribed entities and service providers should obtain consent from parents and children before sharing their information, so long as it is safe, possible and practical to do so (s 159B(g)(ii)). However, the Child Protection Act ultimately requires that children’s safety, wellbeing and best interests are prioritised over the protection of individual privacy (s 159B(h)). Where a child and/or their family has not consented, information may still be shared, but only for the specific purposes and between the specific entities outlined in Chapter 5A.

Information Sharing between Prescribed Entities and Service Providers

Prescribed entities and service providers may only provide information to, or seek information from, one another if they reasonably believe providing the information would assist the recipient of the information:

• to decide whether to report suspected harm or a risk of harm to a child to Child Safety Services (s 159MA)
• to participate in case planning, to assess or respond to the health, educational or care needs of a child in need of care and protection, or to otherwise make plans relating to, or provide services to, a child in need of care and protection (s 159MC)

to assess or respond to the health, educational or care needs of a child, to make plans relating to a child or their family, or to provide or offer to provide services to a child or their child's family to decrease the likelihood that the child will become in need of protection (s 159MD).

Decisions about whether there is the required “reasonable belief” should be made with consideration of the individual circumstances of the child and family. Once the required reasonable belief is formed, the information may be provided regardless of whether the prescribed entity or service provider has requested the information.

Information Sharing with Child Safety Services

Mandatory Information Sharing

Under section 159N, Child Safety Services may ask a prescribed entity, the public guardian, a licensee or person in charge of a student hostel for specific information about a child or an unborn child, which Child Safety Services reasonably considers relevant for the performance of a function or power under the Child Protection Act. This means when Child Safety Services requests such information, it should be clear about the purpose for which the information is needed.

The entity must comply with the request unless the information is not in its possession or control, or if a relevant exception applies. Under section 159N(3), relevant exceptions include circumstances where the entity reasonably considers that sharing the requested information would:

• prejudice the investigation of a contravention or possible contravention of the law
• prejudice a coronial investigation
• enable the existence or identity of a confidential source of information, in relation to the enforcement or administration of a law, to be ascertained
• endanger a person's life or physical safety
• not be in the public interest.

Voluntary Information Sharing

Information may be voluntarily provided to Child Safety Services if a prescribed entity or service provider reasonably believes the information may help Child Safety Services to:

• investigate an allegation of harm or risk of harm to a child, or assess a child's need for protection (s 159MB)
• decide whether a child is in need of protection under section 14 of the Child Protection Act (s 159MB)
• investigate or assess, before the birth of a child, the likelihood that the child will need protection after birth (s 159MB)
• develop or assess the effectiveness of the child's case plan (s 159MC)
• assess or respond to the health, educational or care needs of a relevant child (s 159MC)
• otherwise make plans or decisions relating to a relevant child or their family (s 159MC)
• offer help and support to a pregnant woman under section 21A of the Child Protection Act (s 159MC).

Under section 159MB(2), Child Safety Services can also voluntarily share information with prescribed entities or service providers if it believes this will help the entity to decide whether to share information that Child Safety Services has requested. Under section 159MC(2), Child Safety Services can also provide information to enable prescribed entities or services providers to:

• participate in case planning
• assess or respond to the health, educational or care needs of a child in need of care and protection
• otherwise make plans or decisions relating to, or provide services to, a child in need of care and protection.

Information that Must Not be Shared

Despite the provisions in Chapter 5A, section 159NA provides that information must not be shared to the extent that it relates to a conviction in a person’s criminal history if the rehabilitation period for that conviction has expired and not been revived. Information must also not be shared to the extent that it relates to an expunged conviction or charge.

What Does this Mean for Schools in Queensland?

It is important that schools are aware of their obligations in relation to information sharing under Chapter 5A of the Child Protection Act. The overarching principle is that, wherever safe, possible and practical, schools should attempt to obtain consent from the child and/or their family before sharing personal information. However, a child’s safety, wellbeing and best interests take precedence over the protection of an individual’s privacy.

For further information about Queensland’s reformed information sharing scheme, please see our briefing paper.

Authors

Deborah De Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.

Lucinda Hughes

Lucinda Hughes is a Legal Research Assistant at CompliSpace. She is currently studying a Bachelor of Arts and Bachelor of Laws at the University of Sydney.