Compulsory disclosure

Follow this procedure when considering or seeking a compulsory disclosure direction to compel an information holder to disclose information to child protection.

Document ID number 1901, version 1, 27 September 2018.

Introduction

The CYFA provides a limited power for the Secretary to personally authorise a direction to be given to an information holder (other than a police officer) to disclose information if she believes on reasonable grounds they have information relevant to the protection or development of a child.

See Information sharing in child protection practice. Child protection practitioners need to understand this power, and how it is limited and exercised, before following this procedure.

Compelling an information holder to disclose information to Child Protection is to be used as a last resort, where other means of gathering the required information have been exhausted.

Procedure

Case practitioner tasks

  • Consult with your supervisor and together consider the advice about compulsory disclosure of information and whether seeking to compel disclosure would be appropriate in the circumstances.

If the area operations manager/assistant director approves:

  • Prepare a briefing to the Secretary recommending that the nominated senior officer be authorised to issue a direction to an information holder to give information relevant to the protection of the child to the authorised officer.Set out the key issues and additional information. Address:
  • what information is required and its relevance to the protection or development of the child
  • which information holder/s  are believed to hold relevant information and the type of information holder (other than a police officer) they are - see ‘Information holders’ in Information sharing in child protection practice
  • the grounds for believing the information holder/s have information relevant to the protection or development of the child
  • why the information cannot otherwise be obtained
  • the name and position of the senior officer to be authorised by the Secretary to given the direction and receive the information.
  • Include as an attachment a draft or drafts of Notice to disclose information.

The power to authorise a senior office to issue a direction cannot be delegated, and must be exercised personally by the Secretary in each instance (s.17(1)(d)).

Although police officers are information holders, they are exempt and cannot be directed to disclose information to Child Protection (s. 195).

Children's Court Clinic practitioners cannot be required to disclose any information or document relating to carrying out the Clinic’s functions (s. 196(4)).

  • Attach a copy of the authorisation and of the direction to the child's file.
  • Record information or documents received from the authorised officer, to whom they have been provided by the information holder, making a clear note that the information or documents cannot be used in any legal proceeding other than a child protection proceeding, citing s. 202 of the CYFA.

Supervisor tasks

  • Engage the team manager if considering this issue.
  • Provide ongoing supervision and consultation.

Team manager/practice leader tasks

  • Determine whether other means of gathering the required information have been exhausted.
  • Consult with the area operations manager/assistant director, child protection.
  • Seek endorsement from the area operations manager/assistant director if you believe it is appropriate to proceed.

If the area operations manager/assistant director approves:

  • Support preparation of a briefing to the Secretary.

Area operations manager/assistant director, child protection tasks

  • Seek legal advice if required to assist in decision-making.
  • Determine whether to approve a request to seek the Secretary's authorisation to direct information disclosure from an information holder.
  • Reject a request in relation to a police officer, or a request to direct disclosure by Children’s Court Clinic staff of information or documents relating to Clinic functions.
  • If approving, determine which senior officer (CPP6 or above) to recommend the Secretary authorise to issue the direction.
  • Seek endorsement for the briefing to the Secretary from the area director or director, child protection.

Deputy Secretary tasks

  • Determine whether to approve the briefing to the Secretary.

Secretary tasks

  • Determine whether to authorise the recommended senior officer to issue a direction to compel an information holder to discloses information to that officer.

Authorised officer tasks

  • Issue a direction to disclose information to the relevant information holder/s in the form of the signed standard form - Notice to disclose information.
  • If the information holder refuses to comply:
    • inform them that, if they do not respond as directed without reasonable excuse, their refusal can be notified to the police as an offence
    • ask for, and record, their reason
    • seek legal advice.

It is an offence for an information holder to:

           - refuse to comply with a compulsory disclosure direction without reasonable excuse (s. 197)

           - give false or misleading information in response to a compulsory disclosure direction (s. 201).

Medical professional privilege is not a reasonable excuse (s. 200).

Self-incrimination (s. 198) and legal professional privilege (s. 199) are reasonable excuses.

  • Receive information, documents and assistance from the information holder, orally or in writing, as you have directed.

The authorised officer may collect the information in a variety of ways, including through a telephone conversation, a meeting, receiving advice in writing or receiving documents from the information holder. Where written documents are required, these may not be immediately available, but should be provided within a reasonable timeframe.

  • Provide information and documents received from the information holder to relevant child protection practitioners and managers as appropriate for the purposed of the protection or development of the child.
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