Information sharing

The Family Law Amendment (Information sharing) Bill 2023 (Cth) is currently before Parliament. The bill gives effect to the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems by amending the Family Law Act 1975 to expand the information sharing framework for information relating to family violence, child abuse and neglect risks in parenting proceedings before the Federal Circuit and Family Court of Australia, and the Family Court of Western Australia.

More information can be found here: www.aph.gov.au/Parliamentary_Business/Bills_LEGislation/Bills_Search_Results/Result?bId=r7009

Information-sharing provisions in domestic and family violence legislation vary in scope and detail between jurisdictions and only some provide for information sharing in the conduct of protection order proceedings (see Table 1 below). The practice of information sharing involves interagency coordination and cooperation through protocols developed and regularly reviewed in collaboration between courts, the police and service agencies. These protocols have been shown to improve responses to the enforcement of protection orders, including improved approaches to the assessment and management of risk. There are also differences in how jurisdictions have legislated to prevent the inappropriate sharing of information and to protect people’s privacy.

In addition, all Australian jurisdictions have enacted information-sharing provisions facilitating the National Domestic Violence Orders Scheme (NDVOS), under which a domestic violence order issued on or after 25 November 2017 is automatically nationally enforceable. Every jurisdiction has enacted provisions that enable its courts or law enforcement agencies to obtain information about a DVO from a court or law enforcement agency in another jurisdiction, and use that information for the purpose of making, varying or revoking a DVO. The provisions further require courts or law enforcement agencies in one jurisdiction to provide information about a DVO to a court or law enforcement agency of another jurisdiction that the court or law enforcement agency reasonably requests for the purposes of exercising its functions.

Recent research indicates that the broader potential for sharing information between state/territory agencies responsible for responding to domestic and family violence, such as police, courts, child welfare and health authorities and support and referral services, has become an important factor in the overall effectiveness of responses to domestic and family violence. Information sharing in this context may mean that victims of violence are more likely to engage with the agency to which they have been referred if they know they will not be required to repeatedly re-tell their experiences to other agencies, and therefore avoid further trauma and distress. In addition, where the details of past violence or the risks of future violence are shared between agencies, timely action may be taken to address the risks and to ensure the safety and protection of the victim and other people at risk of harm.

The Commonwealth is piloting the Co-location of State and Territory child protection and other officials in Family Law Court Registries in Federal Circuit and Family Court registries across Australia, to enhance information sharing and collaboration between federal family law and state and territory child protection and family violence systems. The Department of Social Sevices’ National Plan to Reduce Violence against Women and their Children website describes the intended outcomes of this program as:

  • a more coordinated response to family safety issues (demonstrated in part by the sharing of data relating to information or intervention requests in matters where child abuse is suspected or alleged)
  • judicial officers being able to make decisions with full knowledge of prior involvement by child protection and law enforcement agencies
  • strengthened judicial decision-making, with family safety risks identified and addressed earlier in family law proceedings
  • improved inter-jurisdictional understanding and cooperation, leading to better information sharing practices.

Table 1:

Jurisdiction Information sharing provisions under domestic violence legislation Information sharing provisions under NDVOS
Australian Capital Territory s18 Domestic Violence Agencies Act 1986 (ACT) – if ACT/Federal police reasonably suspect domestic violence is being/has been committed/is likely, they may disclose to an approved crisis support agency (s17) any information that will help the agency to assist the victim/children. Part 9, Div. 9.4 Family Violence Act 2016 (ACT)
New South Wales Part 13A Information Sharing

(ss 98C-98L) Crimes (Domestic and Personal Violence) Act 2007 (NSW) – Provides for disclosure by limited agencies (government and health), court, police, designated referral/coordination points to referral/coordination points and support agencies in relation to personal and health information about the victim and (alleged) perpetrator for the purposes of arranging/providing support to the victim, and where there is a domestic violence threat.

Disclosure by government/health agencies and support agencies requires the consent of (and by a court - no express objection by) the threatened person/victim (s98D, E, H). S98J Protocols may be required for this collection, use and disclosure of information.

s98M A government /health agency may collect/use /disclose information if it reasonably believes the threat is serious, disclosure is necessary to prevent/lessen the threat and consent of the victim has been refused or is unreasonable/impractical to obtain.

The NSW Justice Department has developed a protocol for sharing and dealing with information under Part 13A available here. 		Part 13B, Div. 4, Crimes (Domestic and Personal Violence) Act 2007 (NSW)
Northern Territory

s124A Domestic and Family Violence Act 2007 (NT) Failure of an adult to report to the police harm (or likely harm) or serious/imminent threat because of domestic violence is an offence. S124A(4) Police must investigate such a report.

s125 Domestic and Family Violence Act 2007 (NT) Such a report made in good faith is not a breach of a professional code of conduct and cannot attract civil or criminal liability – the report/reporter may only be used in proceedings with leave of the court.

Sections 3(2)(d), 4, Chapter 5A Domestic and Family Violence Act 2007 (NT) provides for disclosure by police, government and health agencies if the entity has reasonable grounds to believe that a person is experiencing domestic violence and the information would help reduce a threat to their health or safety (s 124E).

An information sharing entity should obtain the consent of the person unless it is not possible to do so. In the case of Aboriginal persons, disclosure should promote cultural safety and be culturally sensitive (s 124C). 		Chapter 3A, Part 3A.4 Domestic and Family Violence Act 2007 (NT)
Queensland Part 3 Domestic violence orders

s55 Domestic and Family Violence Protection Act 2012 (Qld) If the respondent is contesting the naming of a child on the protection order or conditions relating to the child, the court may request relevant information from the child protection authority. The parties must be given a copy and the opportunity to make submissions on the information received unless it would expose the victim or a child at increased risk of domestic and family violence.

Part 5A Information Sharing

ss169A – s169O Domestic and Family Violence Protection Act 2012 (Qld) Government entities and specialist DFV service providers may give information to another government entity or specialist DFV service provider for assessing domestic violence threat or for responding to serious domestic violence threat. A support service provider (other than a specialist DFV service provider) may give information to government entity, specialist DFV service provider or other support service provider for responding to serious domestic violence threat.

Whenever safe, possible and practical, a person’s consent should be obtained before information sharing. However, safety and protection takes precedence over a person’s consent.

Government entity or specialist DFV service provider may use information given to it to assess whether there is a serious threat to a person’s life, health or safety or to lessen or prevent a serious threat. A support service provider may use information given to it to lessen or prevent a serious threat to a person’s life, health or safety.

Guidelines for sharing and dealing with information under Part 5A have been developed pursuant to s169M and are available here. 		Part 6, Div. 5 Domestic and Family Violence Protection Act 2012 (Qld)
Tasmania

s37 Family Violence Act 2004 (Tas) – It is not a breach of the Personal Information Act 2004 (Tas) (which regulates the collection and use of information) for an agency under that Act, acting in good faith, to collect, use, disclose personal information for the purpose of furthering the objects of the Family Violence Act.

s39 Family Violence Act 2004 (Tas) Providing information (voluntarily or as required) to police based on a belief/reasonable suspicion of family violence (or likely family violence) with weapon, physical, sexual violence or where child affected, is not a breach of professional ethics/requirements and cannot, if done in good faith, incur civil or criminal liability. 		Part 4, Domestic Violence Orders (National Recognition) Act 2016 (Tas)
Victoria

s140 Family Violence Protection Act 2008 (Vic) – Information from an interview or report relating to (respondent) court ordered counselling may be used in proceedings for a contravention relating to counselling orders or the underlying offence. (Power relating to court ordered counselling is limited to the Family Violence Court Division or other court specified by the Minister s126).

Part 5A Information Sharing

ss144A-144SG Family Violence Protection Act 2008 (Vic)

‘Information sharing entities’ (prescribed by regulation) may share any personal, health or sensitive information relevant to assessing and/or managing family violence between each other, provided the information is not excluded; sharing it does not contravene another law; and applicable consent requirements have been met.

The information may relate to a victim survivor, alleged or established perpetrator or third party. Information may be shared for a “family violence assessment purpose” or “family violence protection purpose” and the relevance and reasonable belief required to share the information varies according to the purpose. Consent requirements vary according to the party to whom the information relates.

Information sharing entities must comply with requests for information meeting the requirements of Part 5A.

Guidelines for sharing and dealing with information under Part 5A have been developed pursuant to s 144P and are available, alongside various other resources on the Part’s operation, here. 		Part 5, National Domestic Violence Order Scheme Act 2016 (Vic)
Western Australia s70A Restraining Orders Act 1997 (WA) – Limited government agencies, including police and children’s services, may disclose to each other information about person protected by an order or affected child if the disclosure is necessary to ensure the safety of the person protected or the wellbeing of a child. Part 4, Domestic Violence Orders (National Recognition) Act 2016 (WA)
South Australia s38 Intervention Orders (Prevention of Abuse) Act 2009 (SA) – A public sector agency or contractor that is bound by the State's Information Privacy Principles, must, on request, make available to a police officer information to assist in locating a person for service of a protection order. Part 3A, Div. 4 Intervention Orders (Prevention of Abuse) Act 2009 (SA)

Acknowledgement of (adapted) source: Taylor, A., et al, Domestic and family violence protection orders in Australia: An investigation of information sharing and enforcement – State of knowledge paper (ANROWS, 2015) – Table 3, p15