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Justice and Other Information Disclosure Bill 2008
Justice and Other Information Disclosure
Bill 2008
Explanatory Notes
Objectives of the Bill
To provide a statutory basis for the sharing of criminal justice information
between the Department of Justice and Attorney-General, the Queensland
Police Service, Queensland Corrective Services and the Department of
Communities (the criminal justice agencies) to facilitate the coordinated
management of persons in the criminal justice system and improve
collaboration between the agencies. Provision is also made for the sharing
of child safety and criminal justice information between the Department of
Justice and Attorney-General, the Queensland Police Service and the
Department of Child Safety.
The Bill also provides for the position of District Court Judge
Administrator.
Reasons for the Bill
The Bill is concerned with information sharing that will occur under the
Integrated Justice Information Strategy (IJIS). IJIS is a cross-agency
initiative to enable the electronic transfer of information across the criminal
justice agencies and the Department of Child Safety.
Each agency has developed processes and systems to meet its own unique
requirements. IJIS provides an opportunity to remove barriers to
communication and information sharing through the construction of
technical infrastructure, common terminology and language and the
connection to enable information sharing to happen. Information will be
seen as a resource to be captured once, validated at the time of capture and
shared electronically. The aim of disclosure of criminal justice information
between the criminal justice agencies is the co-ordinated management of
defendants and offenders, for example through the electronic sharing of
court orders and upcoming court appearance dates.
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Justice and Other Information Disclosure Bill 2008
Legislation governing information sharing by the criminal justice agencies
and the Department of Child Safety tends to be agency specific, that is, it
was developed to meet the needs of the particular agency. Existing
provisions focus on the disclosure of information for the aims of the agency
disclosing the information, not with a view to the effective operation of the
criminal justice system as a whole.
The Bill is intended to provide a clear statutory basis for information
sharing in the criminal justice system under IJIS and to resolve any doubt
about whether IJIS information sharing processes have a lawful basis.
To a more limited extent, the Bill provides for information sharing between
the Department of Child Safety, the Department of Justice and
Attorney-General and the Queensland Police Service. The Department of
Child Safety is not directly involved in prosecuting and managing
offenders through the criminal justice system. However, there will be clear
benefits for strategic decision-making and policy and program
development from being able to identify offenders who have come into
contact with the child protection system and to being able to analyse trends
in offending and life outcomes. The Department of Child Safety will also
benefit from IJIS through improved access to information held by the
Department of Justice and Attorney-General, in its court administration
role, in relation to child protection applicants who are before the courts,
juvenile defendants who are also in the child protection system, and adult
defendants who are persons of interest to that department.
The Bill does not apply to sensitive information provided in certain
applications under the Police Powers and Responsibilities Act 2000, nor
information that may lead to the identification of an informer. Information
that may lead to the identification of a person who has notified about harm
or suspected harm to a child or unborn child under the Child Protection Act
1999 and information that may lead to the identification of a detention
centre employee who has reported harm or suspected harm to a child under
the Juvenile Justice Act 1992 are likewise excluded from the operation of
the Bill.
The District Court is the largest trial court in Queensland and deals with
80% of all criminal matters which are prosecuted on indictment. The
District Court hears all appeals from the Magistrates Courts as well as from
decisions of a number of tribunals and other statutory bodies. Having
regard to this the position of District Court Judge Administrator is being
provided for in the Bill. The Judge Administrator will be responsible for
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Justice and Other Information Disclosure Bill 2008
ensuring the orderly and expeditious hearing of matters by the District
Court.
Achievement of the Objectives
The Bill achieves the objectives by way of the proposed new legislation and
amendments to existing legislation described below.
Estimated Cost for Government Implementation
Nil.
Consistency with Fundamental Legislative Principles
A regulation making power
The Bill includes two identical Henry VIII provisions (that is, potentially
inappropriate delegations of parliamentary power). The provisions
concerned, clauses 5(m) and 8(j), involve a power to prescribe by regulation a
further purpose for which information may be shared between the criminal
justice agencies and the child protection agencies, for the reason that it is not
possible to anticipate all purposes for which information may be shared. A
regulation made pursuant to these provisions would not directly amend the
proposed Act and could not be about any aspect of the Bill, but would extend
the operation of the information sharing clauses. It is considered that this is
an appropriate delegation of parliamentary power as it is required to facilitate
the smooth staged commencement of the Government's information sharing
projects designed to integrate the Queensland criminal justice system. The
Bill and the projects it supports are an unprecedented and innovative initiative
to coordinate the management of persons in the criminal justice system and
improve collaboration between criminal justice agencies. As the exact detail
of these projects may not be known until close to their delivery, unforseen
doubts over the lawful authority to share information under the Bill, could
jeopardise the projects. A similar provision is contained in section 289 of the
Juvenile Justice Act 1992 (inserted by the Juvenile Justice Amendment Act
2002), under which regulations have been made. Unlike regulations made
under that provision, regulations made under the Bill will sunset 12 months
after their commencement. A regulation can only be made within one year
of the commencement of the sunset provision (clause 17). The sunset
provision expires the regulation making powers two years after the sunset
provision commences.
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Justice and Other Information Disclosure Bill 2008
Privacy implications
The general right to privacy by individuals is recognised by the
Government. This right is supported by the introduction of the Information
Privacy Principles (IPPs) as an administrative scheme pursuant to
Information Standard 42 (IS 42), under the authority of the Financial
Management Standard 1997. As an administrative scheme, IS 42 is subject
to any overriding legislation.
IPP 11 is relevant to the disclosure of information in the possession of the
agencies affected by this Bill. IPP 11 prohibits the disclosure of records
containing personal information to a person, body or agency, other than the
individual concerned unless certain circumstances exist, in particular where
the disclosure is required or authorised by or under law.
An individual's criminal justice information (whether as defendant,
offender, victim or witness) or child protection information would clearly
be considered personal information and thus subject to disclosure
requirements under IPP 11. However, there is justification for displacing
this right. These restrictions have to be balanced against the community
benefit that flows from enhanced community safety by improving
information sharing and collaboration between the agencies.
Under the Bill, the authorisation to share information is for certain
purposes only (see clauses 5 and 8). A "use provision" (clause 15) only
permits use of the information by the receiving agency for the purpose for
which it was received or for a purpose permitted or authorised under an
Act.
The Government has sought to achieve a balance between the competing
considerations of an efficient and cohesive criminal justice system and
individual privacy. The Government ultimately formed the view that
permitting the exchange of criminal justice and child safety information for
limited purposes was an acceptable and desirable balance between the
public interest in community safety and the public interest in protecting the
privacy of individuals.
Consultation
A consultation copy of the draft Bill dealing with the statutory basis for
criminal justice and child protection information sharing was sent to the
Chief Justice, the Chief Judge, the Chief Magistrate, Legal Aid
Queensland, the Queensland Law Society, the Bar Association Queensland
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Justice and Other Information Disclosure Bill 2008
and the Queensland Council for Civil Liberties. Extensive consultation
took place within Government with the agencies affected by the Bill.
The Chief Judge was consulted about the proposed amendments dealing
with the position of District Court Judge Administrator.
Notes on Provisions
Part 1 Preliminary
Clause 1 provides for the citation of the Bill.
Clause 2 provides that the definitions for the Bill are in the schedule.
Clause 3 provides for the purposes of the Bill.
Part 2 Disclosure of justice information
between criminal justice agencies
Clause 4 defines the term justice information as information obtained by
the relevant agency in the performance of its functions and which is
relevant to a purpose for which information can be shared under clause 5.
Without limiting the term, subsection (2) lists three types of justice
information.
Clause 5 defines the term justice purpose. Under clause 6, justice
information about a person in the criminal justice system, is made available
between agencies for a justice purpose if it is made available for the
purposes listed in subparagraphs (a) to (m) of clause 5. These purposes for
which information may be shared include a purpose prescribed by
regulation (subparagraph (m)). In accordance with clause 17, a regulation
made under the provision will expire one year after its commencement.
Clause 5(m) expires two years after the commencement of clause 17.
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Justice and Other Information Disclosure Bill 2008
Clause 6 is a provision to enable justice information about a person in the
criminal justice system to be made available to the chief executive of a
criminal justice agency for the justice purposes listed in clause 5. The
clause enables information to be provided under an arrangement made
between the relevant criminal justice agency chief executive and another
criminal justice agency chief executive. Criminal justice agency is defined
in the schedule in relation to the administration of certain Acts and
accordingly covers the Department of Justice and Attorney-General, the
Queensland Police Service, Queensland Corrective Services and the
Department of Communities.
The term justice information is defined in clause 4. The term person in the
criminal justice system is defined in the schedule to be a person listed in
subparagraphs (a) to (j) of that definition, for example, a person who has
been charged with an offence (subparagraph (c)).
Part 3 Disclosure of child protection
information between child
protection agencies
Clause 7 defines the term child protection information as information
obtained by the relevant agency (the Department of Child Safety, the
Department of Justice and Attorney-General or the Queensland Police
Service) in the performance of its functions and which is relevant to a
purpose for which information can be shared under clause 8. Without
limiting the term, subsection (2) lists two types of child protection
information.
Clause 8 defines the term child protection purpose. Under clause 9, child
protection information about a person in the child protection system or a
person in the criminal justice system, is made available between agencies
for a child protection purpose if it is made available for the purposes listed
in subparagraphs (a) to (j) of clause 8. These purposes for which
information may be shared include a purpose prescribed by regulation
(subparagraph (j)). In accordance with clause 17, a regulation made under
the provision will expire one year after its commencement. Clause 8(j)
expires two years after the commencement of clause 17.
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Justice and Other Information Disclosure Bill 2008
Clause 9 is a provision to enable child protection information about a
person in the child protection system or a person in the criminal justice
system to be made available to the chief executive of a child protection
agency, for the child protection purposes listed in clause 8. The clause
enables information to be provided under an arrangement made between
the chief executive of the Department of Justice and Attorney-General and
the chief executive of the Department of Child Safety for the purposes
listed in clause 8. An arrangement may also be made between the
Department of Child Safety and the Queensland Police Service for the
purposes of clause 8(e) (information linking) (defined in the schedule) or
8(i) (technical system testing).
The term child protection information is defined in clause 7.
The term person in the criminal justice system is defined in the schedule to
be a person listed in subparagraphs (a) to (j) of that definition, for example,
a person who has been charged with an offence (subparagraph (c)).
The term person in the child protection system is defined in the schedule as:
· a child in relation to whom an application has been made for an
order under the Child Protection Act 1999;
· a child in relation to whom the chief executive has decided to
take action under the Child Protection Act 1999, chapter 2, part
3B (intervention with parents' agreement);
· a parent of a child mentioned above; or
· an adult against into whom an allegation of harm or risk of harm
to a child has been made.
Part 4 Disclosure of information to
information technology service
provider
Clause 10 makes provision for the role of any information technology
service provider which may transmit information shared between agencies
or assist an agency in carrying out a justice purpose or a child protection
purpose. The chief executive of a criminal justice agency or a child
protection agency may arrange with the chief executive of an information
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Justice and Other Information Disclosure Bill 2008
technology service provider to make information available to the
information technology service provider in order that the provider:
· can transmit the information to the receiving agency; or
· enable or assist the receiving agency to carry out a purpose for
which the information was sent.
The term information technology service provider is defined in the
dictionary.
Part 5 Relationship with other Acts
Clause 11 provides that the use of information as provided under the
arrangements mentioned in clause 13 is permitted despite any other Act
prohibiting the use of the information. This clause relates to information
made available between the criminal justice agencies or between the child
protection agencies pursuant to the authorisations in clauses 6, 9 and 10.
Subsequent use of information received under the arrangements mentioned
in clause 13 and authorised by clauses 6, 9 or 10 is governed by clause 15
and by the terms of the arrangements themselves.
Clause 12 excludes from the operation of the Bill information provided in
certain applications made under the Police Powers and Responsibilities Act
2000. Also excluded is information that may lead to the identification of
an informant and information mentioned in section 803(2) of the Police
Powers and Responsibilities Act 2000 which is a variety of information not
required to be disclosed in court proceedings unless considered necessary
by the court.
Also excluded from the operation of the Bill is information that may lead to
the identification of a person who has notified under the Child Protection
Act 1999 about harm or a risk of harm of a child or unborn child and
information that may lead to the identification of a detention centre
employee who has reported under the Juvenile Justice Act 1992 harm or
suspected harm to a child.
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Justice and Other Information Disclosure Bill 2008
Part 6 Miscellaneous
Clause 13 provides for the form of arrangements between the chief
executives for the sharing of information under the Bill. The arrangements
may be written and may include the electronic transfer of information.
This provision contemplates the bulk disclosure of information. The
arrangement must state all limitations on the purposes for which
information may be used.
Clause 14 provides for the discarding of certain information provided to an
agency under the Bill. The reason for this is that although IJIS strives to
provide the most logical, cost effective and privacy compliant models of
information sharing, information sharing under IJIS will necessarily
involve instances in which information superfluous to an agency's needs,
will be sent to it.
The first instance of this is to enable person of interest matching by the
receiving agency where it is only interested in a select category of persons.
The matching is performed by the receiving agency as it holds and controls
the list of persons of interest. Although the majority of the matching is
done automatically by the computer system, some must be done manually
by officers.
Person of interest matching must take place at some point. For example,
the Department of Justice and Attorney-General will hold a list of court
results for one particular day. The Department of Child Safety will be
interested in the court outcomes for those persons on that list who are
children in the child safety system or who are associated with such children
(e.g. a parent). The alternative to the Department of Justice and
Attorney-General sending that list to the Department of Child Safety for
Child Safety to perform the matching, is that the Department of Child
Safety would provide its database of children and associated people to the
Department of Justice and Attorney-General so that the Department of
Justice and Attorney-General can identify if there is a person of interest
before sending the information out. This is a costly approach that would
duplicate agency held data into other agency systems and involves a far
greater breach of privacy in that all of the Department of Child Safety's
confidential data would reside in the Department of Justice and
Attorney-General.
The second instance is where information is sent about a person who is of
interest to a receiving agency, but aspects of the information sent are not
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Justice and Other Information Disclosure Bill 2008
required by the agency. The majority of information will be automatically
and instantly deleted by the receiving agency's computer system. No
person in the receiving agency views the information prior to its deletion.
In limited circumstances the information will not be able to be extracted
and discarded. It will be maintained by the agency in accordance with
legislative and privacy obligations.
The obligation in clause 14 to discard information not required where
practicable means receiving agencies are only keeping and officers are
only accessing that personal information which is required by them to
perform their roles. This obligation provides compliance with the Public
Records Act 2002 which only permits disposal of public records where
there is authority given by the archivist or other legal authority, justification
or excuse. It is noted that whilst clause 14 obliges receiving agencies to
discard "extra" information, the information will still be held in the sending
agency's records.
Clause 15 provides that information provided under the Bill may only be
used for the purpose or purposes for which it was made available or for a
purpose permitted or authorised by an Act. Information provided in
pursuance of another Act is subject to any restriction on the information in
the hands of the sending agency. This restriction does not apply if the
receiving entity could have obtained the information under any Act or law
in the performance of its functions without restriction. Breach of this
provision carries a maximum penalty of 100 penalty units ($7,500).
Clause 16 applies if a person, acting honestly, gives information under the
Bill. Subsections (2) and (3) provide that a person who gives information
is not liable civilly, criminally, or under an administrative process, and
cannot be held to have breached any code of professional ethics, or
departed from accepted standards of professional conduct. Without
limiting subsections (2) and (3), subsection (4) confers protection in
relation to civil proceedings and contraventions of any Act, oath, rule of
law or practice.
Clause 17 expires the regulation making powers in clauses 5(m) and 8(j)
two years after clause 17 commences. Any regulations made under those
clauses expire one year after they commence. A regulation can only be
made within one year of the commencement of clause 17.
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Justice and Other Information Disclosure Bill 2008
Part 7 Amendment of other Acts
Division 1 Amendment of Child Protection Act
1999
Clause 18 states that this division amends the Child Protection Act 1999.
Clause 19 amends section 7 to expand the functions of the chief executive
(child safety) to permit that department's participation in the collection and
publication of information and statistics about, and the promotion and
conduct of research into, harm to children; the life outcomes of children in
care; and the relationship between the criminal justice system and the child
protection system. These are key IJIS initiatives and relate to the purposes
for which information are shared between the Department of Child Safety,
the Department of Justice and Attorney-General and the Queensland Police
Service under clause 9.
Division 2 Amendment of Constitution of
Queensland 2001
Clause 20 states that this division amends the Constitution of Queensland
2001.
Clause 21 amends section 56 of the Constitution of Queensland 2001 to
recognise the office of District Court Judge Administrator.
Division 3 Amendment of District Court of
Queensland Act 1967
Clause 22 states that this Division amends the District Court of Queensland
Act 1967.
Clause 23 amends section 10A of the District Court of Queensland Act
1967 to recognise that the Judge Administrator is senior to all other judges
of the court apart from the Chief Judge.
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Justice and Other Information Disclosure Bill 2008
Clause 24 inserts new part 2 division 2AA into the District Court of
Queensland Act 1967 to provide for the appointment, powers and
responsibilities of the Judge Administrator.
Under proposed new section 28B a judge is to be appointed Judge
Administrator for a term of not less than 5 years. The appointment can
occur at the time of the person's appointment as a judge or at any time
afterwards. The Judge Administrator may be reappointed.
Proposed new section 28C provides for the appointment of an acting Judge
Administrator by the Governor in Council.
Proposed new section 28D provides that the Judge Administrator continues
to be a judge and may sit and exercise any of the powers of a judge.
Proposed section 28E provides that the Judge Administrator holds office as
Judge Administrator while the person holds office as a judge and also
provides the circumstances which the person who is Judge Administrator
vacates the office of Judge Administrator. These circumstances are the
person's appointment as Chief Magistrate, Chief Judge or a judge of the
Supreme Court; or the end of the term of appointment as Judge
Administrator. The Judge Administrator may resign office as Judge
Administrator without resigning office as a judge.
Proposed new section 28F provides that subject to section 28A, the Judge
Administrator is responsible for the administration of the District Court
and for ensuring the orderly and expeditious exercise of the jurisdiction and
powers of the District Court. The Judge Administrator must consult with
the Chief Judge in carrying out the Judge Administrator's functions. The
Judge Administrator has power to do all things necessary or convenient to
carry out the Judge Administrator's functions, including, for example,
listing matters for hearing.
© State of Queensland 2008
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