Child Protection Review (Powers and Immunities) Act 2002

Review. The Act defines “Review” by reference to the Schedule, which contains the terms of reference for the review of child protection in South Australia. Those terms direct the reviewer to deliver a plan to the Minister covering strategies to improve child protection services, assess the effectiveness of existing legislation and practices, examine adequacy of criminal law and police procedures, advise on whole-of-government coordination, and consider employee/volunteer screening mechanisms. The terms of reference are not standard legislative provisions with ongoing effect; they define the scope of a finite inquiry.

Authorised person. This is a two-tier concept. The primary authorised person is the individual appointed to conduct the Review. Secondary authorised persons are any persons appointed by the Chief Executive of the Department of Human Services to assist in its conduct. All authorised persons enjoy the same powers and immunities under the Act while it remains operative.

Authorised police officer. This concept appears only in s 5(3)(d) as one of the exceptions to the prohibition on further disclosure of information. The definition in s 2 includes SA police of or above the rank of sergeant or in charge of a station, or any member designated by the Commissioner. It also extends to interstate police of equivalent rank, or any interstate police member designated by the SA Commissioner with the agreement of the relevant police force head. This allows information to flow to police for law enforcement purposes without breaching the confidentiality restrictions.

Override of confidentiality. Section 5(1) is a sweeping provision: any law requiring a person to keep information confidential or restricting disclosure does not prevent that person from providing information in the course of or for the purposes of the Review. This overrides not only specific statutory secrecy provisions (such as those in the Children’s Protection Act 1993) but also common law duties of confidence, contractual confidentiality clauses, and professional obligations of silence (subject to professional conduct rules that may remain in residual effect). The override is limited to the act of providing information to the Review; it does not authorise wider dissemination.

Further disclosure restrictions. Once information is obtained by the Review, it cannot be further disclosed or published if it falls into three categories: (a) personal information relating to a child, the child’s guardians or family members, or any person alleged to have abused, neglected or threatened a child; (b) information that discloses the identity of a notifier of suspected abuse or neglect; or (c) information that the person conducting the Review has declared forbidden from further disclosure in the interests of justice or to prevent hardship or embarrassment (s 5(2)). The exceptions in s 5(3) allow further disclosure for the purposes of the Review or a report to the Minister, with the consent of the (adult) person to whom it relates, to a person administering the Children’s Protection Act 1993 or an equivalent interstate law, to an authorised police officer, by way of court evidence with permission, or if the information is already public.

Court evidence. Sections 5(4)-(6) create a special procedure for using protected information as evidence in court proceedings. No evidence of such information may be adduced without the court’s permission, and parties or witnesses cannot be asked questions that would require disclosure unless permission is granted. Permission may only be given if the court is satisfied the evidence is of critical importance and failure to admit it would prejudice the proper administration of justice, or if the (adult) person to whom the information relates consents. Applications for permission must be heard in private unless the court orders otherwise.

Immunities. Section 6 grants authorised persons the same protection, privileges and immunities as a Supreme Court judge. This is extremely broad: it likely includes immunity from suit for anything said or done in the course of the Review, similar to absolute judicial immunity, and protection from being compelled to give evidence about matters arising in the Review. Informants have the same immunity as a witness in the Supreme Court (which includes immunity from subsequent civil action based on their testimony and from self-incrimination consequences). Legal practitioners have the same protections, privileges, immunities and obligations as counsel in the Supreme Court.

Spent powers. Section 3(3) is a critical temporal limitation: after the Review is completed, no authorised person may exercise any power conferred by the Act. This means that once the final report is delivered, the information-gathering powers end. The confidentiality and disclosure restrictions in s 5, however, continue to apply to information already obtained, because those restrictions are not expressed to lapse upon completion.

The reviewer and assistants. The person appointed to conduct the Review, and anyone appointed to assist, are the primary subjects of the Act. They receive broad powers to obtain information in any manner they think fit, without the need for formal hearings, and with discretion over legal representation for those providing information. They are shielded from potential civil liability or legal process by the immunity equivalent to a Supreme Court judge. However, they are also subject to the duty under s 5(8) to take all reasonable steps to avoid identifying a particular child in their report to the Minister, and they must observe the disclosure restrictions in s 5(2).

Persons providing information. Any person who gives information to the Review is affected in several ways. They are relieved of confidentiality obligations that would otherwise prevent disclosure (s 5(1)), so they cannot be sued for breach of confidence or disciplined for breaching professional secrecy. They receive the same protection and immunities as a witness in the Supreme Court (s 6(2)), which likely includes immunity from civil suit for defamation or other claims based on the information provided, and protection from having to incriminate themselves. However, they are at risk of prosecution if they knowingly provide false or misleading information in a material particular (s 4). They must also be careful not to further disclose any information they obtain in the course of the Review which falls within the protected categories.

Children, families, and notifiers. The Act’s confidentiality provisions are designed to protect children and their families from public disclosure of personal information obtained by the Review. Section 5(2)(a) extends to personal information relating to a child, the child’s guardians or other family members, and any person alleged to have abused, neglected or threatened a child. Section 5(2)(b) protects the identity of notifiers. These individuals can expect that their information will not be further disclosed without their consent (if they are adults) or unless one of the statutory exceptions applies. However, the exceptions are broad: the information may be shared with police, with persons administering the Children’s Protection Act 1993, or used in court proceedings if permission is obtained. Moreover, the Minister or Chief Executive may publish or disclose any such information if they consider it in the public interest, provided it is not contrary to another law or a direction of the reviewer (s 5(9)). This override weakens the apparent protection.

Courts. Courts dealing with proceedings where protected information might be relevant must apply the gatekeeping procedures in s 5(4)-(6). They cannot receive such evidence unless permission is granted, and permission is only available on stringent grounds: the evidence must be of critical importance and failure to admit it would prejudice the proper administration of justice, or the relevant adult must consent. Applications must be heard in private unless the court orders otherwise.

Minister and Chief Executive of the Department of Human Services. They have a special power under s 5(9) to publish or authorise disclosure of protected information if they consider it in the public interest, but they cannot do so if it would be contrary to any other law or to a direction of the reviewer. This gives the executive a discretionary override of the confidentiality protections, subject to the reviewer’s direction.

Legal practitioners. Lawyers representing persons in connection with the Review are given the same protection, privileges, immunities and obligations as counsel in the Supreme Court (s 6(3)). This ensures they cannot be sued for what they say in the course of the Review and have the usual professional obligations.

Duty not to provide false information. Section 4 makes it an offence to provide information that a person knows is false or misleading in a material particular to an authorised person in the course of or for the purposes of the Review. The maximum penalty is $10,000. This duty applies to anyone, not just those formally giving evidence. The use of “knows” requires actual knowledge, not mere negligence, so inadvertent errors are not penalised.

Duty not to further disclose protected information. Section 5(2) imposes a prohibition on further disclosure or publication of information falling within the three categories: personal information about children and related persons, notifier identity, and information subject to a declaration by the reviewer. Breach is an offence under s 5(7) with a maximum penalty of $10,000. This duty applies to anyone, including the authorised persons themselves, not just original informants. There is no defence of good faith or public interest (except via s 5(9) which is exercisable only by the Minister or Chief Executive).

Duty of authorised persons to avoid identifying children in reports. Section 5(8) requires an authorised person, in preparing a report for the Minister about the Review, to take all reasonable steps to avoid the disclosure of information that may identify or lead to the identification of a particular child. This is a positive obligation of care, but it is qualified by “reasonable steps”; it does not impose an absolute prohibition if identification is unavoidable.

Right to provide information despite confidentiality obligations. Section 5(1) gives any person the right to provide information to the Review regardless of any legal duty of confidence. This is a statutory override that displaces contractual, fiduciary, statutory or professional confidentiality. The person cannot be penalised under any other law for making that disclosure.

Right to immunity. Section 6 provides three categories of immunity. Authorised persons have the immunity of a Supreme Court judge; informants have the immunity of a witness; legal practitioners have the immunity of counsel. These immunities are likely absolute in relation to acts done within the scope of the Review, shielding against civil suit, contempt proceedings, and possibly criminal prosecution for honest actions.

Right to legal representation. Section 3(1)(c) gives the person conducting the Review discretion to determine whether a person providing information or making submissions may have legal or other representation. This is not a right; it is a matter of the reviewer’s discretion. There is no implied right to representation if the reviewer decides otherwise.

Right of the reviewer to control procedure. Section 3(2) provides that, subject to the Act, procedure is determined by the reviewer. This includes the power not to hold hearings, to obtain information in any manner thought fit, and to exclude or limit representation. These procedural powers are not subject to the usual safeguards of natural justice or administrative law standards, because the Act does not impose them. However, the overarching immunity suggests the reviewer’s decisions are not reviewable by courts.

Right of the Minister and Chief Executive to publish in public interest. Section 5(9) gives the Minister or Chief Executive a discretionary power to publish or authorise disclosure of protected information if they consider it in the public interest, but subject to not contravening any other law or a direction of the reviewer. This provides a safety valve for releasing information that might otherwise be kept confidential, but it is exercisable only by those senior officials.

The Act creates two criminal offences, each carrying a maximum penalty of $10,000. The first is under s 4: knowingly providing false or misleading information in a material particular to an authorised person. The second is under s 5(7): contravening the prohibition on further disclosure of protected information in s 5(2). Both are summary offences, likely prosecuted in the Magistrates Court of South Australia. The penalty amount of $10,000 is set at 2002 levels and has not been indexed under any general penalty amendment legislation apparent from the source.

The Act does not specify who may initiate prosecutions. In practice, the police would lay charges, or the Director of Public Prosecutions could bring an information. There is no provision for civil penalties, injunctions, or regulatory enforcement. No power to issue infringement notices or penalty notices is given; only criminal prosecution applies.

The offence in s 4 requires proof of knowledge that the information is false or misleading in a material particular. This is a subjective mental element; the prosecution must prove the person knew the falsity. Recklessness or negligence is not sufficient. This is a relatively high threshold that limits the reach of the offence. For s 5(7), the offence is a strict liability or fault element not specified. Given the text does not require knowledge or intention, it is likely a strict liability offence under the Criminal Code (SA) if applied, but the Act does not import that Code. However, standard principles of statutory interpretation would likely require the prosecution to prove at least an intention to do the act of further disclosure; mistake of fact could be a defence. The penalty of $10,000 is modest, suggesting the legislature considered these as regulatory offences rather than serious crimes.

Enforcement of the further disclosure prohibition is complicated by the fact that protected information may be in the hands of many people. The Act does not create a positive duty to secure information; only a prohibition on further disclosure. An authorised person’s duty in s 5(8) to take reasonable steps to avoid identifying a child in a report is not backed by an offence; breach of that duty does not attract a penalty.

There is no provision for vicarious liability of corporations or employers for acts of employees who provide false information or further disclose protected information. The offences are personal, requiring action by an individual.

Overrides confidentiality laws. Section 5(1) is the most significant interaction provision. It expressly overrides any law requiring a person to keep information confidential or restricting disclosure. This includes:

• The Children’s Protection Act 1993, which contains confidentiality provisions about child protection matters.
• The Family and Community Services Act 1972 (now largely replaced but in force at the time).
• Health privacy laws (e.g., the Health Care Act 2008? but in 2002 the relevant law was the Health Insurance Act? - not specified, but any law with secrecy provisions is overridden).
• Common law duties of confidence, including those arising from doctor-patient, lawyer-client (subject to legal professional privilege? - see below), and other professional relationships. However, s 5(1) does not expressly override legal professional privilege. It refers to “any law requiring a person to keep particular information confidential”. Legal professional privilege is a common law right, not a duty to keep information confidential; it is a right to resist disclosure. The Act does not compel disclosure; it only permits it. A person who is the holder of legal professional privilege could rely on the privilege to refuse to provide information, because the Act does not compel anyone to provide information. The override in s 5(1) only removes impediments to disclosure; it does not create a compulsion. Therefore, a lawyer-client communication could still be withheld if the client does not waive privilege.

Uses definitions from the Children’s Protection Act 1993. Section 5(10) provides that any term used in s 5 that is defined in the Children’s Protection Act 1993 has the same meaning as in that Act. This incorporates the definitions of “child”, “guardian”, “abuse”, “neglect”, “family member”, and likely “notify”, “Department”, and others. This means the scope of the protected information in s 5(2) is tied to the child protection definitions in the principal child protection legislation of the time.

Supreme Court immunities. Section 6 imports the protections, privileges and immunities of a Supreme Court judge, witness, and counsel. This means the law relating to judicial immunity, witness immunity, and advocate immunity is borrowed. The Act does not codify those immunities; it incorporates them by reference. This could give rise to interpretive questions about the scope of judicial immunity in South Australia. The 2006 amendment to s 5(4)-(6) replaced references to the “Rules of the Supreme Court” with updated references to the new civil procedure rules (Statutes Amendment (New Rules of Civil Procedure) Act 2006). That amendment was purely mechanical and did not change substantive law.

Children’s Protection Act 1993 administration. Section 5(3)(c) allows further disclosure of protected information to a person engaged in the administration of the Children’s Protection Act 1993 or similar interstate law. This facilitates information sharing between the Review and child protection authorities.

Authorised police officers and disclosure to police. Section 5(3)(d) allows disclosure to an authorised police officer as defined. This is a carve-out from the confidentiality prohibition, enabling the Review to refer matters to police for investigation.

Interaction with freedom of information. The Act does not mention freedom of information laws. Section 5(9) gives the Minister or Chief Executive a power to publish in the public interest, but that power is expressly subject to not being contrary to any other law. The Freedom of Information Act 1991 (SA) might apply to documents held by the Department of Human Services, but s 5(2) of this Act could be a prohibition on disclosure that would override FOI if the documents contain protected information. However, FOI laws generally contain exemptions for information that would be a breach of confidence. The interaction would depend on the specific documents and whether the information falls within s 5(2).

No interaction with other review or inquiry statutes. The Act does not apply the provisions of the Royal Commissions Act or the Commissions of Inquiry Act. It is a bespoke framework. This means the reviewer does not have powers of summons, search warrants, or examination on oath that are typical of formal commissions. The only power is to obtain information from persons who choose to provide it, albeit with the benefit of confidentiality overrides.

The Act has been amended only once. The Statutes Amendment (New Rules of Civil Procedure) Act 2006 (No 17 of 2006) came into operation on 4 September 2006 (Gazette 17 August 2006 p2831). Part 14, section 52, amended subsections (4), (5), and (6) of section 5. The amendment was purely procedural: it replaced references to the “Rules of the Supreme Court” with updated references to reflect the new civil procedure rules that replaced the old rules. The substance of the court’s gatekeeping function over evidence of protected information did not change; only the procedural rule reference was updated.

The Act received Royal Assent on 1 August 2002 and commenced on the same day. It has not been repealed and remains on the South Australian statute book as an Act of Parliament, even though the Review it was enacted to facilitate has long been completed. The Act’s operative powers are spent under s 3(3), but the confidentiality and penalty provisions arguably continue to apply to information obtained during the Review, because no repeal or sunset clause has been added. However, the practical significance is minimal: any further disclosure of information obtained in 2002 would be extremely unlikely unless it was retained and later disclosed in breach.

The legislative history notes that new entries appear in bold in the table. The only provision amended was s 5, and the amendment is noted as affecting subsections (4), (5), and (6). No other sections have been amended. The Act has no other amendments or repeals.

The Act itself contains no reference to any litigation, and no reported cases are mentioned in the source. Given the temporary and narrow scope of the Act, it is unsurprising that there is no recorded case law under it. The Act was designed for a specific one-off inquiry in 2002-2003, and its substantive provisions that could give rise to litigation (the offences and the confidentiality rules) would be unlikely to be litigated many years later. The immunity provisions in s 6 would only be tested if someone attempted to sue an authorised person, an informant, or a lawyer in connection with the Review, but no such case appears in the source. The court permission procedure under s 5(4)-(6) could theoretically have been invoked in subsequent proceedings, but again no case is noted. A researcher would need to conduct an independent search of South Australian case databases to ascertain whether any unreported decisions exist. The source does not provide that information, so none can be cited.

The Act is spent but not repealed. Section 3(3) extinguishes the powers of authorised persons upon completion of the Review. However, the Act itself remains in force. The confidentiality restrictions in s 5(2) continue to apply to information obtained during the Review; there is no provision that they expire. This means a person who, in 2025, obtains a document from the 2002 Review and further discloses it could theoretically be prosecuted under s 5(7), if the information still falls within one of the protected categories. In practice, this is very unlikely, but it is a technical trap. The Act should probably have been repealed or subject to a sunset clause.

No compulsion to provide information. The Act overrides confidentiality laws (s 5(1)), but it does not compel anyone to provide information. A person approached by the reviewer can simply refuse to speak. The reviewer has no power to summons witnesses, administer oaths, or compel production of documents. This may have been a deliberate limitation to avoid the formality of a commission of inquiry, but it means the Review’s effectiveness depended entirely on voluntary cooperation.

Broad immunity may protect bad faith conduct. Section 6(1) gives an authorised person the same protection, privileges and immunities as a Supreme Court judge. Judicial immunity is generally absolute for acts within jurisdiction, even if done maliciously or in bad faith. This could shield the reviewer from any civil claim for defamation, breach of privacy, or negligence arising from the Review’s conduct, regardless of how egregious the conduct. There is no express limit to acts done in good faith or without malice.

No requirement of natural justice. The Act does not require the reviewer to hold hearings, give notice to persons who may be adversely mentioned, or provide an opportunity to respond. Section 3(1)(a) expressly states the reviewer is not required to hold a hearing. The reviewer may obtain information in any manner thought fit. Combined with broad immunity, this creates a risk that individuals could be criticised in the report without knowing it or having a chance to respond, and with no legal remedy.

Minister/CEO override of confidentiality. Section 5(9) gives the Minister or Chief Executive a power to publish or otherwise disclose protected information if they consider it in the public interest. This provision is not subject to any requirement to consult the person to whom the information relates, and it overrides the s 5(2) prohibition (subject only to not being contrary to another law or a direction of the reviewer). This means a Minister could, years later, decide to release the identities of notifiers or children if they deemed it in the public interest. The safeguard of the reviewer’s direction is temporary: the reviewer’s direction would only matter if one was given and not revoked. The provision creates uncertainty about the permanence of the confidentiality.

Court permission threshold is high but uncertain. Section 5(5) permits a court to admit evidence of protected information only if it is of “critical importance” and failure to admit would prejudice “the proper administration of justice”. This is an undefined standard. The court must also have regard to the fact that the information was obtained in the course of a child protection review. The interaction with other evidence rules (e.g., hearsay, opinion, relevance) is not addressed. The provision may be used to block evidence that would otherwise be admissible under ordinary rules, if the court refuses permission.

Penalties are low and not indexed. The $10,000 maximum penalty for both offences (s 4 and s 5(7)) was set in 2002. With inflation, the real value of that penalty has roughly halved. There is no provision for indexation or CPI adjustment. This may reduce deterrence.

The definition of “authorised police officer” includes interstate police. Section 2 defines an authorised police officer to include members of police forces of other States, Territories, and the Commonwealth, of or above sergeant rank (or equivalent), or any member designated by the SA Commissioner with the consent of the relevant police head. This broad definition allows information to flow across borders. A person providing information to the Review should be aware that their information could be disclosed to interstate police under s 5(3)(d) without their consent.

No protection for information provided by children. Section 5(2)(a) protects “personal information relating to a child” and family members, but the exceptions in s 5(3) allow further disclosure with the consent of “the person (not being a child)” to whom the information relates (s 5(3)(b)). A child cannot consent. However, the Minister or Chief Executive could override the protection under s 5(9) without the child’s consent. So the protection for children is weaker than it appears.

For a person asked to provide information to the Review. You may provide information despite any confidentiality obligation you have (s 5(1)). You must not knowingly provide false or misleading information in a material particular (s 4). If you do, you face a fine of up to $10,000. You are not required to answer any question you do not wish to; the Act does not compel you. However, if you provide information, you are protected from being sued for breach of confidence, defamation, or other claims arising from that disclosure (s 6(2) gives you the immunity of a witness in the Supreme Court). After you provide the information, you must not further disclose any of the information you obtained in the course of the Review that falls within the protected categories (s 5(2)). If you are unsure whether a piece of information is protected, you should seek guidance from the reviewer or your own legal adviser. Breach of the further disclosure prohibition is a criminal offence.

For an authorised person (the reviewer or an assistant). You have wide discretion in how to obtain information (s 3(1)(b)), but you do not have power to compel anyone to provide it. You may decide whether informants can have legal representation (s 3(1)(c)). You enjoy judicial immunity (s 6(1)), but you must comply with s 5(2) and not further disclose protected information unless one of the exceptions in s 5(3) applies. When preparing your report to the Minister, you must take all reasonable steps to avoid identifying a particular child (s 5(8)). After the Review is completed, you may no longer exercise any powers under the Act (s 3(3)), meaning you cannot seek further information using the Act’s authority. You must also ensure that any report you prepare does not breach s 5(2) unless an exception applies.

For a legal practitioner representing a client in connection with the Review. You have the same protection, privileges, immunities and obligations as counsel in the Supreme Court (s 6(3)). This includes immunity from suit for things said in the course of the Review and the duty to maintain client confidentiality (which is not overridden by s 5(1) because legal professional privilege is a right, not a duty to keep information confidential; see above). However, your client may agree to provide information to the Review, waiving privilege. You should advise your client that they cannot be compelled to provide information, but if they choose to do so, the confidentiality override applies and they cannot later claim the information is protected by privilege in relation to that disclosure.

For a court faced with an application to adduce evidence of protected information. You must not admit such evidence without permission (s 5(4)(a)). You can only grant permission if the evidence is of critical importance to the proceedings and failure to admit it would prejudice the proper administration of justice, or if the adult person to whom the information relates consents (s 5(5)). The application must be heard in private unless you order otherwise (s 5(6)(a)). You must take steps to protect the information pending determination of the application (s 5(6)(b)).

For the Minister or Chief Executive. You have a broad power to publish or authorise disclosure of protected information if you consider it in the public interest (s 5(9)). However, you must not do so if it would be contrary to any other law, or if the reviewer has given a direction forbidding such disclosure. You should also consider the terms of any such direction, which may continue even after the Review is completed. This power is discretionary; you are not required to exercise it. If you do, you should also ensure that you are not in breach of other laws, such as privacy legislation or the Children’s Protection Act 1993, unless s 5(1) overrides them (but s 5(9) specifically says it does not apply if the disclosure is contrary to a law other than this Act, so other laws still apply).