Children, Young Persons, and Their Families (Oranga Tamariki) Legislation Act 2017

  • not the latest version
  • A correction has been made to section 41 on 7 August 2017 under section 25(1)(j)(iii) of the Legislation Act 2012.
41 Section 66 replaced (Government departments may be required to supply information)

Replace section 66 with:

Information sharing

65A Purpose of information sharing and principle for information sharing decisions

(1)

The purpose of sections 66 to 66Q is to facilitate the gathering and sharing of information to achieve the purposes in section 4(1)(a) to (j).

(2)

Persons carrying out functions under sections 66 to 66Q must have regard to the principle that (because the well-being and best interests of a child or young person are the first and paramount consideration) the well-being and best interests of any child or young person, in general, take precedence over any duty of confidentiality owed by any person in relation to—

(a)

the child or young person; or

(b)

any person who is a family member of that child or young person or in a domestic relationship with that child or young person (within the meaning of section 4 of the Domestic Violence Act 1995).

66 Agencies to supply information

(1)

Every agency (within the meaning of section 2(1) of the Privacy Act 1993, which includes a person) must, on request, supply to the chief executive, a care and protection co-ordinator, or a constable any information held by the agency that may relate to or affect the safety or well-being of a child or young person, if the information is—

(a)

required to determine whether a child or young person is in need of care or protection or assistance under section 17(2) and (2A); or

(b)

required for the purposes of any proceedings under this Part (including a family group conference).

(2)

Despite subsection (1), an agency may refuse to disclose any information that may be withheld on the grounds of legal professional privilege.

(3)

Information obtained under subsection (1)—

(a)

must not be used for the purposes of investigating any offence; and

(b)

is not admissible in any proceedings other than proceedings under this Part.

66A Disclosure of information obtained under section 66

(1)

The chief executive or a constable may disclose any information relating to a child or young person obtained under section 66 to a child welfare and protection agency or an independent person if the chief executive or constable reasonably believes that providing the information will fulfil any of the following purposes:

(a)

preventing or reducing the risk of a child or young person being subject to harm, ill-treatment, abuse, neglect, or deprivation:

(b)

making or contributing to an assessment of risk or need in relation to a child or young person, or a class of children or young persons:

(c)

making, contributing to, or monitoring any support plan for a child or young person where the plan relates to the activities and functions of the department:

(d)

preparing, implementing, or reviewing any prevention plan or strategy issued by the department:

(e)

arranging, providing, or reviewing services facilitated by the department for a child or young person, or their family or whānau:

(f)

carrying out any function in relation to family group conferences, children or young persons in care, or other functions relating to care or protection under this Part.

(2)

Section 66(3) applies in respect of any information disclosed under this section as if it were disclosed under section 66(1).

(3)

In this section, in care has the same meaning as in section 7(4)(b).

66B Restrictions on disclosure of information under section 66A

The chief executive or a constable may not disclose information to a child welfare and protection agency or an independent person under section 66A if—

(a)

the information was disclosed to the chief executive or constable in circumstances that would otherwise have put the person who disclosed the information in breach of the person’s duty of confidence under the rules of the profession in which they practise; and

(b)

the chief executive or constable is aware, after making reasonable inquiries, that the disclosure would otherwise involve a breach of a duty of confidence of the kind referred to in paragraph (a) (whether as a result of being advised by the person disclosing the information or otherwise); and

(c)

the person to whom the information relates or their representative has not consented to the disclosure.

66C Use and disclosure of personal information relating to child or young person or classes of children or young persons

A child welfare and protection agency or an independent person that holds information relating to a child or young person or any class of children or young persons (including information contained in a dataset) may, irrespective of the purpose for which that information was collected,—

(a)

use that information for the purposes of—

(i)

preventing or reducing the risk of a child or young person being subject to harm, ill-treatment, abuse, neglect, or deprivation; or

(ii)

making or contributing to an assessment of risk or need in relation to a child or young person, or any class of children or young persons; or

(iii)

making, contributing to, or monitoring any support plan for a child or young person, where the plan relates to the activities and functions of the department; or

(iv)

preparing, implementing, or reviewing any prevention plan or strategy issued by the department; or

(v)

arranging, providing, or reviewing services facilitated by the department for a child or young person and their family or whānau; or

(vi)

carrying out any function in relation to family group conferences, children or young persons in care, or other functions relating to care or protection under this Part; or

(b)

disclose (whether on request or on the agency’s or independent person’s own initiative) that information to another child welfare and protection agency or an independent person if the agency or independent person disclosing the information reasonably believes that disclosing the information will assist the agency or independent person receiving the information to carry out any of the purposes described in paragraph (a).

66D Public notification of information about combined datasets

(1)

To avoid doubt, a child welfare and protection agency may use information relating to a child or young person to produce, link, or analyse datasets of information and produce combined datasets.

(2)

If a child welfare and protection agency links or analyses datasets or produces combined datasets from more than 1 source, it must notify, at least once a year, on an Internet site maintained by the agency, an independent person, or a class of independent persons,—

(a)

the types of information used in the combined datasets:

(b)

the sources of those types of information:

(c)

the purpose or purposes served by creating or analysing the combined datasets:

(d)

the privacy safeguards relating to the use of the combined datasets.

66E Application of sections 66F to 66J

Sections 66F to 66J do not apply until a Code for information sharing approved by the Minister under section 66N(1) comes into force.

66F Definitions

In sections 66G to 66J,—

authorised child welfare and protection agency, in relation to any of those provisions, means a child welfare and protection agency or a class of child welfare and protection agencies, authorised by the Code of information sharing to exercise powers or perform functions under the particular provision

authorised independent person means, in relation to any of those provisions, an independent person or a class of independent persons, authorised by the Code of information sharing to exercise powers or perform functions under the particular provision

information relevant to the safety or well-being of a child or young person includes information about—

(a)

a member of the family of that child or young person; or

(b)

any other person in a domestic relationship (as defined in section 2 of the Domestic Violence Act 1995) with that child or young person; or

(c)

any person who is likely to reside with the child or young person.

66G Requests for information by authorised child welfare and protection agencies or authorised independent persons from other authorised child welfare and protection agencies or authorised independent persons

An authorised child welfare and protection agency or an authorised independent person (the requestor) may request another authorised child welfare and protection agency or an authorised independent person (the provider) to disclose to the requestor any information that the provider holds that is information relevant to the safety or well-being of—

(a)

a particular child or young person and their family; or

(b)

a class of children or young persons and their families.

66H Duty of child welfare and protection agency or independent person receiving request under section 66G

An authorised child welfare and protection agency or an authorised independent person—

(a)

must comply with a request under section 66G if, after receiving sufficient information from the requestor to make a decision, the provider reasonably believes that the information will assist the requestor to fulfil any of the purposes set out in section 66A(1); but

(b)

may decline the request if section 66I applies.

66I When request under section 66G may be declined

An authorised child welfare and protection agency or an authorised independent person may decline a request under section 66G if that agency or person—

(a)

is not satisfied that disclosure of the information will help to fulfil any of the purposes in section 66A(1); or

(b)

reasonably believes that—

(i)

disclosure is likely to increase the risk of the child or young person being subject to harm, ill-treatment, abuse, neglect, or deprivation, and that risk outweighs the benefits of disclosure; or

(ii)

disclosure will prejudice the maintenance of the law, including the prevention, investigation, and detection of offences, and the right to a fair trial, and that prejudice is likely to outweigh the benefits of disclosure; or

(iii)

disclosure will prejudice the conduct of proceedings before any court or tribunal (being proceedings that have been commenced or are reasonably in contemplation); or

(iv)

disclosure will breach legal professional privilege; or

(v)

disclosure will be contrary to the express wishes of the child or young person (expressed either directly or through their representative) and disclosure is not in the best interests of the child or young person.

66J Reasons for declining request

An authorised child welfare and protection agency or an authorised independent person who declines a request under section 66G must give the requestor notice of the decision to decline the request and the reasons for the decision.

66K Consultation to be undertaken when information is requested or proposed to be disclosed under section 66C or 66H

If an authorised child welfare and protection agency or an authorised independent person proposes to disclose information under section 66C or 66H, the agency or person must, if it is practicable and appropriate to do so,—

(a)

inform the child or young person concerned, or their representative, about the proposed disclosure, including the purposes and likely recipients of any disclosure; and

(b)

provide the child or young person or their representative any reasonable assistance necessary to—

(i)

understand the nature of the proposed disclosure; and

(ii)

express their views about the proposed disclosure; and

(iii)

understand the consequences of the decision that is taken in relation to the disclosure; and

(c)

take into account any view expressed about the proposed disclosure before deciding whether to disclose the information.

Code of practice for information sharing

66L Purpose of Code for information sharing

(1)

The purpose of a Code of Practice for Information Sharing (a Code) is to provide both guidance and direction to child welfare and protection agencies and independent persons about the application of the information sharing provisions in sections 66 to 66K and how disputes about the interpretation and application of those provisions should be resolved.

(2)

Without limiting subsection (1), a Code may—

(a)

authorise a child welfare and protection agency or a class of child welfare and protection agencies or an independent person or a class of independent persons to exercise 1 or more of the powers or carry out 1 or more of the functions set out in sections 66G to 66J:

(b)

contain binding rules about the circumstances in which—

(i)

the powers conferred by 1 or more of those sections can be exercised; and

(ii)

the duties imposed by 1 or more of those sections must or may be carried out; and

(c)

specify the conditions to which the exercise of those powers and carrying out of those functions is subject; and

(d)

specify how disputes about the interpretation and application of those provisions are to be resolved.

66M Consultation on draft Code by Minister

(1)

As soon as practicable after the commencement of this section but before the Minister issues a draft Code, the Minister must consult the following persons about the content and form of the Code:

(a)

the Privacy Commissioner:

(b)

the Children’s Commissioner:

(c)

any organisations or individuals who the Minister is satisfied represent the interests of—

(i)

child welfare and protection agencies; and

(ii)

independent persons; and

(iii)

different classes of child welfare and protection agencies and independent persons.

(2)

The Minister must, as soon as practicable after undertaking the consultation required by subsection (1), make decisions on the form and content of the draft Code and arrange for it to be—

(a)

notified in the Gazette; and

(b)

published on an Internet site maintained by the Government.

(3)

The notification of the draft Code must state—

(a)

that written submissions on the draft Code are invited from members of the public and interested organisations; and

(b)

where copies of the draft Code may be obtained; and

(c)

the closing date for submissions; and

(d)

the address to which submissions are to be sent.

66N Approval of draft Code by Minister

(1)

After considering a summary of issues and concerns raised by submitters and making any amendments to the draft Code, the Minister must approve the Code.

(2)

The Code comes into force—

(a)

on the date specified for that purpose in the Code, being a date after the date on which the Code is approved; or

(b)

if no such date is specified, the day after the date on which the Code is approved.

66O Application of Legislation Act 2012 to Code

The Code is a legislative instrument and a disallowable instrument for the purposes of the Legislation Act 2012 and must be presented to the House of Representatives under section 41 of that Act.

66P Amendments to Code

(1)

The Code may be amended by the Minister approving 1 or more amendments to the Code.

(2)

Sections 66M to 66O apply, with all necessary modifications, in relation to an amendment to the Code as if the amendment were a draft Code.

(3)

However, section 66M does not apply to an amendment and it is unnecessary for the Minister to consider a summary of issues and concerns if—

(a)

the amendment is a minor or technical amendment; and

(b)

the Minister considers that compliance with section 66M is unnecessary.

66Q Relationship with other enactments

(1)

Sections 66 to 66P do not—

(a)

affect the Official Information Act 1982; or

(b)

limit or prevent the collection, use, or disclosure of information that is—

(i)

authorised or required under any other enactment; or

(ii)

permitted under any other enactment.

(2)

The collection, storage, and use of information under sections 66 to 66J of this Act must comply with principles 1, 4, 5, 6, 7, 8, 9, and 12 of section 6 of the Privacy Act 1993.

(3)

Sections 66 to 66P do not limit principle 11 in section 6 of the Privacy Act 1993 (which permits certain disclosures in addition to those authorised under those sections).

(4)

However, if there is any other inconsistency between sections 66 to 66P of this Act and any provisions of the Privacy Act 1993, sections 66 to 66P prevail.

(5)

Despite section 344(2) of the Education Act 1989, the chief executive of the Ministry of Education may use national student numbers to gather information for any of the purposes set out in section 66A(1), and the information so gathered may be used for any of those purposes.