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Legal framework for exchanging information

There are two schemes for the exchange of information relating to the safety, welfare or wellbeing of children and young persons and unborn children under the Act.

Chapter 16A

Under Chapter 16A, prescribed bodies, including many human services and justice agencies and NGOs, are able to share information relating to the safety, welfare or wellbeing of children or young people without consent, where necessary, and whether or not the child or young person is known to Community Services.

As Chapter 16A concerns exchange of information between organisations it cannot be used to obtain information from a person unless that person is part of an organisation, e.g. an incorporated practice.

For example, in the latter situation the request is not made of the GP for the GP’s records, but of the organisation for the organisation’s records (which include those records generated by GPs working within that organisation.

Section 248

Section 248 allows Community Services to provide or request information relating to the safety, welfare and wellbeing of a child or young person.

When Chapter 16A first became operational it was unclear whether Community Services was intended to be a prescribed body, especially as section 248 was not repealed and the operational implications were unknown.

Accordingly, Community Services agreed to trial exchanging information “using the objects and principles of Chapter 16A” during 2010 while still using section 248. A review of the trial confirmed no significant practice issues for Community Services or for the agency’s partners. Consequently, as of18 April 2011 Community Services now primarily exchanges information under the provisions of Chapter 16A and only uses section 248 in limited circumstances.

However, as Chapter 16A does not apply to certain Commonwealth bodies (section 245I of the Act), information exchange under section 248 for these organisations still applies.

Reporter’s identity

It is important to note that section 29 of the Act prohibits the disclosure of the identity of a reporter, or of any information which might reveal the identity ofa reporter, unless:

  • the reporter has given consent to the disclosure
  • a court or other body before which proceedings relating to the report are being conducted has granted leave for the disclosure, or
  • NSW Police require reporter identity to be disclosed in connection with the investigation of a serious offence alleged to have been committed against a child or young person (see section Disclosing reporter’s identity under Section 248 and Chapter 16A).

This is provided that it is clear that a report is made on behalf of a person in a chain of reporting the protection afforded under section 29 extends to the person who the report is made on behalf of. For example, if a principal makes a mandatory report on behalf of a teacher and it is clearly specified in the report that the report is made on behalf of the teacher, the teacher is also protected.

A reporter is defined as a person who makes a report to Community Services about a child or young person. The protection provided in section 29 also extends to people who make referrals to a Child Wellbeing Unit (CWU), see section 27A(7).

The protection applies regardless of whether Community Services assesses the report as meeting, or not meeting, the risk of significant harm threshold. Where a person provides information to a prescribed body under Chapter 16A or section 248, they are not considered to be a reporter, and their identity is not protected by section 29.

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Last updated: 24 Sep 2019