Greenleaf, Graham --- "Child Death Register (NSW)" [1996] PrivLawPRpr 51; (1996) 3(5) Privacy Law & Policy Reporter 96

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CHILD DEATH REGISTER (NSW)

Children (Care and Protection) Amendment Act 1995 (NSW)

These amendments (in force since 1 June 1996) to the Children (Care and Protection) Act 1987 establish the Child Death Review Team (s 102), an independent statutory agency consisting of representative of various NSW government agencies, and experts from relevant professions (including paediatrics, law and social work). Its functions (s 103) are to maintain a register of child deaths occurring in NSW, `analyse data accumulated with respect to the causes of child deaths', identify areas requiring further research by the team or agencies, and undertake research as the Minister requires.

NSW Government departments, statutory bodies or local authorities have a statutory duty (s 104) `to provide the Team with full and unrestricted access to records that are under the person's control, or whose production the person may, in an official capacity, reasonably require, being records to which the Team reasonably requires access for the purpose of exercising its functions'.

Members and staff of the Team may not reveal information collected by it except for the purpose of exercising its functions or for other prescribed purposes (s 106(1)). They are also protected from producing documents, or revealing information, to any court which they have by reason of being a Team member or staff (s 106(2)).

The Minister is to draw up guidelines for the operation of the Team (s 107(1)), which must include provisions to protection confidentiality of material collected, and the `privacy of individuals' in relation to both the Team's reports and other aspects of its activities (s 107(2)). The guidelines must be drawn up in consultation with the NSW Privacy Committee (s 107(3)). Guidelines have not yet been published.

The Freedom of Information Act 1989 (NSW) is amended so as to exempt the register of child deaths from its scope.

Comment

The exemption of the register of child deaths from the FOI Act may be counter-productive, if it was intended as a privacy protection. All sets of information privacy principles include subject access and correction rights as essential privacy protections. A FOI exemption not only prevents third parties accessing the register under the FOI Act (probably unnecessarily, as the privacy exemption would usually have the same effect), but also prevents anyone whose personal details are included in the register from knowing what is recorded about them or having any rights of correction. This could be remedied by the Guidelines, as a FOI exemption does not prohibit subject access, it merely means that it is not available under FOI procedures. However, it would be necessary to provide that, in some cases, subject access would only be available via an intermediary such as the Privacy Committee, or perhaps a nominated doctor.

Graham Greenleaf, General Editor.