ACT Freedom of Information Act 2016 removing rights to obtain information under the Children and Young People Act 2008

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31 May 2019

Recent correspondence from the ACT Government and the Greens Party state they are united in their intention to immediately remove some of the existing rights a person has to obtain “sensitive information” about themselves held by officials under the Children and Young People Act 2008 (C&YP Act).
Under the Freedom of Information Act 2016 (FOI Act) a person currently has the right (subject to adequate safeguards) to access information about themselves even if it is “sensitive information”. This includes care and protection reports and appraisals, family group conferencing information, contravention reports, and other information prescribed by regulation.
If the rights under the FOI Act are removed, a person would be able to request the documents from the Director General. However, if that request was refused they would need to either be a person already involved in Court proceedings under the C&YP Act, or would have to commence proceedings under that Act to obtain an order for the release of the documents. Either way there is a cost and difficulty about making the application via a Court.
For example, imagine you act for a person who applies to become the “kinship carer” for a child, and the application is refused. Your client would really want to know what information the officials relied on about them to make that refusal. Under the FOI Act your client has the right to make a request to the relevant officials. If the FOI right is removed by the proposed legislation, the only alternative is to be involved in Court proceedings.
The same situation applies if your client was previously subject to care and protection orders, and now as an adult wants to know why. A request for information could be refused, and without the rights under the FOI Act, the alternative again is to be involved in Court proceedings.
The fact that this serious variation to a person’s rights to information is being proposed by an omnibus bill – the Justice and Community Safety Legislation Amendment Bill 2019 – is of additional concern as omnibus bills are usually reserved for minor and technical amendments. While this issue might be “technical”, it can hardly be called “minor” if it serves to prevent a person accessing information about them that is held by officials.
A month ago our Law Society called for the proposed changes to be first referred to a committee of the Assembly for open and public consideration about the need for reducing access to information.
On 16 May 2019, the Legislative Assembly voted in support of the standing committee on Health, Ageing and Community Services to conduct an inquiry into, inter alia, “…the ability to share information in the care and protection system in accordance with the Child and Young People Act 2008, with a view to maintain community confidence in the ACT’s care and protection system”. Submissions can be made before 30 August 2019.
In addition, a working group chaired by the Justice and Community Safety (JACS) executive, has asked for public submissions on a discussion paper titled “Review of child protection decisions in the ACT”. Submissions will be accepted up to 14 June 2019.
Surely the government and Greens can see the sense in allowing the Committee and the working group to do their work before rushing to make changes?
Chris Donohue President, ACT Law Society