The Act frames a small set of core administrative duties, litigation rights and constraints that allocate responsibility between the director and the chief executive (child safety), and impose confidentiality duties on persons who gain access to information.
Duties of the director. The director has the primary duty to perform listed functions under section 9, including preparing and applying for child protection orders under the Child Protection Act 1999 (s 9(1)(a)), preparing transfer applications (s 9(1)(b)), and preparing and conducting appeals (s 9(1)(c)). Section 10 empowers the director to apply to the Childrens Court for a child protection order or to seek transfer orders on behalf of the State. The director has administrative duties to issue guidelines consistent with this Act and the Child Protection Act 1999 (s 39), must provide an annual report to the Minister within four months of year end (s 40(1)-(2)), and must participate in a statutory review after three years (s 41). The director must consult the chief executive before referring matters back, applying for different types of orders than suggested in the brief, or other things prescribed in guidelines (s 18), and give written reasons where the director acts without agreement (s 18(2)).
Powers and rights of the director. The director represents the State and has the status, privileges and immunities of the State (s 8). The director may engage appropriately qualified lawyers (s 11), may delegate functions with restrictions (s 14), and may exercise powers necessary or convenient to perform functions under the Act (s 12). The director controls the office (s 38) and determines guidelines for referral and conduct procedures (s 39).
Duties of the chief executive (child safety). There are mandatory referral duties (s 15); the chief executive must refer a matter where it is satisfied a child needs protection and an order is appropriate, where an order in force is no longer appropriate, or where a permanent care order’s permanent guardian is seriously non-compliant and the order is no longer appropriate (s 15(1)). For each referral, the chief executive must provide a brief of evidence, supporting documents, affidavits and any other relevant material available (s 16). The chief executive must take reasonable steps to provide information requested by the director (s 23). In an ongoing child protection proceeding the chief executive has a duty to disclose all information relevant to the proceeding in its possession or control until the proceeding is finally decided (s 24).
Confidentiality duties. Persons gaining confidential information through involvement with administering the Act , including the director, staff, persons engaged by the director, and public service employees in the department , must not record, intentionally disclose, or recklessly disclose the information, subject to specified exceptions (s 19). The Act sets a maximum criminal penalty of 100 penalty units or two years imprisonment for breaches (s 19(1)). The director may authorise research access to information in a non-identifiable form (s 20). Receivers of information are similarly bound by non-use and non-disclosure obligations and face the same maximum penalty (s 21).
Delegation and limits. The director may delegate functions and powers to qualified staff or engaged lawyers (s 14(1)). However, delegation of the function under section 10(1) (the director’s power to apply for child protection orders and transfer orders) can only be made to a member of the director’s staff, must be in writing, and cannot permit subdelegation (s 14(2)). This preserves a concentrated limit on who may exercise the director’s core litigation powers.
Appointment, tenure and removal rights. The director is to be appointed by the Governor in Council on the Minister’s recommendation (s 25(1)). The Minister may only recommend a lawyer with at least ten years admission and who demonstrates leadership, management and innovation in a senior role (s 25(2)). The director holds office for up to five years (s 27). The Governor in Council may remove the director on the Minister’s recommendation if satisfied of misconduct, incapacity, neglect or incompetence; the Minister may suspend the director for up to 60 days pending inquiry (s 32). Where the director is absent or the office vacant, an acting director may be appointed subject to limits (s 33).
Rights of disclosure for proceedings. Although confidentiality is strict, the Act expressly permits recording and disclosure of confidential information for the purposes of this Act, to discharge a function under another law, for court or QCAT proceedings, if authorised by court or QCAT in the interests of justice, if required or permitted by law, and if the information relates to a child and is used for a purpose directly related to the child’s protection or wellbeing (s 19(3)). Parallel exceptions appear in s 21 for receivers.
Reporting and procedural rights. The director must include guidelines in the annual report (s 40(2)), and the Minister must table the annual report in the Legislative Assembly (s 40(3)). The director may make guidelines about procedures for referral, briefs of evidence, decision factors and internal review processes (s 39(2)). The Act also requires the director to consider principles drawn from the Child Protection Act 1999 when administering the Act, including the paramountcy of the child’s safety and wellbeing (ss 5-6).