New Qld Act to Improve Child Death Review System

On 13 February the Child Death Review Legislation Amendment Act 2020 (Qld) (‘the Act’) was assented as Act 2 of 2020. The Bill for the Act was originally introduced to the Queensland Parliament by the Attorney-General, Hon Yvette D’Ath on 18 September 2019, and was subsequently referred to the Education, Employment and Small Business Committee. The Committee's Report was tabled on 18 November 2019 and the Bill was passed on 5 February 2020.

Response to the QFCC Report

The primary objective of the Act is to implement the recommendation made by the Queensland Family and Child Commission (QFCC) in their report (‘the QFCC Report’) which outlined the results of a QFCC investigation into the Queensland system of child deaths review, in response to the death of a 21-month-old child in 2016.

Prior to the Act receiving assent, an internal systems review following the death or serious injury of a child known to Child Safety could only be conducted by Child Safety or the Director of Child Protection Litigation. The single recommendation of the QFCC Report, titled “A systems review of individual agency findings following the death of a child”, was the development of a revised external and independent model for reviewing the deaths of children known to the child protection system. The recommendation was justified by the QFCC on the basis that firstly, Child Safety is an effective but not sufficiently independent agency and secondly, that among agencies in general there was a lack information sharing and collaboration. As the Explanatory Notes outline, the Act implements the recommendation of the QFCC in two ways:

1. The Act expands the requirement to conduct an internal systems review following the death or serious physical injury of a child known to Child Safety, to other relevant government agencies involved in providing services to that child (in addition to Child Safety and the litigation director).
2. The Act establishes the new, independent Child Death Review Board, located within the QFCC which will be responsible for carrying out systems reviews, following child deaths connected to the child protection system, identifying opportunities for continuous improvement in systems, legislation, policies and practices identifying preventative mechanisms to help protect children and prevent deaths that may be avoidable.

Internal Agency Reviews

Part 2 of the Act replaces Chapter 7A of the Child Protection Act 1999 (Qld) to expand the reviews requirement to agencies including Queensland Health and the Department of Youth Justice. The Act reflects the QFCC Report’s statement that Child Safety’s internal review processes were comprehensive and effective by predominantly retaining the procedures of review of the previous legislative scheme. The Act outlines the protocol for triggering a review by another relevant agency stating that the chief executive (Child Safety) must provide written notice to the relevant agency head which may include the chief executive of a department, a health service chief executive or the police commissioner. An agency is necessarily required to carry out a review if the agency has provided a service within the 12 month period before the child’s death or serious physical injury.  

The Act also introduces new provisions to encourage information sharing by adding to the objectives of internal agency reviews the promotion of the safety and well-being of children by “supporting collaboration and joint learning by relevant agencies”. The Act states heads of agencies or entities may receive requested or given information that may be relevant for review for the purposes of carrying out an internal agency review. Furthermore, the Act maintains existing confidentiality provisions around the use and disclosure of confidential information and specifically provides that if a person acts honestly in the giving of information, they are “not liable, civilly, criminally or under an administrative process, for giving the information”. This affirms the Minister’s statement in the Second Reading Speech, the child review model of the Act is “not about individual blame or disciplinary action”.

Whole-of-systems Reviews by the Board

The Act amends the Child Protection Act to remove Chapter 7A, Part 2 (Child Death Case Review Panels) and creates a new Part 3A in the Family and Child Commission Act 2014 (Qld) (‘the FCC Act’) headed ‘Child Death Review Board’ to establish a separate and independent Board located in the QFCC, with distinct functions and powers. The Board will research, analyse data, carry out reviews, provide recommendations and report on matters relating to child deaths and the adequacy of services to children and families. Since the Board will have a broad statutory systemic review function, the Board will not investigate the death of a particular child and thus the investigation of specific cases will remain with relevant agencies like the Queensland Police Service and the Coroner. Furthermore, the Board’s focus will be on child death reviews rather than serious injury cases since the complexity of case management for serious injury cases more relevantly pertains to the functions of internal agency reviews. However, it is notable that the scope of the Board is significantly greater than its predecessor and enables the board to review a wide range of government-funded and private agencies.

The new section 29A of the FCC Act outlines the primary purposes of the Board which are:

1. to identify opportunities for continuous improvement in systems, legislation, policies and practices; and
2. to identify preventative mechanisms to help protect children and prevent deaths that may be avoidable.

The new section 29F of the FCC Act is clear that the Board must act independently and in the public interest and that the board and the commissioner are not subject to direction by the Minister or anyone else concerning the performance of their functions. The Act furthers the Board’s commitment to act in public interest by requiring that the Board’s membership “reflects the social and cultural diversity of the Queensland community” as well as ensuring one member is an Aboriginal or Torres Strait Islander person, requiring members to represent a range of expertise and experience including paediatrics, mental health, litigation and child protection and establishing that the majority of the Board cannot be public service employees.

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Child Death Review Legislation Amendment Act 2020, Bill and supporting information available from TimeBase's LawOne Service