Secrecy provisions relating to child welfare cases in ACT legislation are the most restrictive in the country and are working against those they're meant to protect, according to two Canberra barristers.
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The convoluted legislation is more restrictive than in cases where it is crucial to protect an informant giving evidence in a trial against a murderer, a drug importer or a bikie gang, barrister Philip Walker, SC said.
Mr Walker said the ACT should fall in line with other jurisdictions and reform the legislation to enable the decisions made by authorities to be better held to account.
The legislation is designed to protect children, families and those reporting child abuse from being identified. However, even with permission from the parents, the details of such cases cannot be reported, even anonymously.
"Nobody needs to know their name but it is absolutely appropriate that people see exactly what cases are advanced by welfare authorities and can judge whether they're discharging their responsibilities properly and effectively," Mr Walker said.
He said the federal Family Court, which deals with the same degree of serious child welfare issues, doesn't have as much legislation devoted to making sure nothing can be seen outside the court.
Mr Walker and colleague James Haddock defended a mother in a case where the ACT government took her children - the decision was ultimately overturned on appeal, five years after she lost her children to the foster system.
However, due to the secrecy provisions Mr Walker - even with the consent of the mother - can't share information about why the children were taken, what aspects of the child concern reports the government relied on, and how the decision to ultimately return the children to their mother was made.
"If there isn't a judgement published, the welfare agencies can just dust it off and nobody gets to see or hear about it when they've got a case completely wrong."
He said the degree to which the legislation prevents scrutiny is at the detriment of children involved, it is not a benefit to them.
"Nobody is saying anonymity of children, families and those who report child abuse in the welfare system should not be protected. This is normally achieved by de-identifying the people associated with the case but not for details of the case itself.
"The extent of the suppression under ACT legislation appears to be motivated to a significant extent to protect the welfare agencies."
Barrister James Haddock said there are no such provisions in legislation in other states and territories.
He said NSW has "simple streamlined provisions which allows disclosure of information with consent".
In Queensland, the equivalent of the ACT Community Services Directorate director-general must give permission for publication but only so far as it identifies or may identify a child or parent.
In Victoria the president of the Children's Court or a magistrate must give permission for publication of information.
"The Family Law Act provision is a lengthy one but it is pretty straightforward in its essence in that it does not allow the public of identifying information," Mr Haddock said.
Legal Aid ACT Family law practice head Linda McGregor said if the parents give permission to access the information, it should be able to be reported.
"Children, and families, involved in care and protection matters are extremely vulnerable," Ms McGregor said.
"Some of the information before the court is personal and highly sensitive. We need to be very careful that the release of information is not harmful to them. In other jurisdictions the publication prohibition provision provides that the information can be released with consent of the families – this is sensible," she said.
An ACT government spokeswoman did not respond to specific questions for this story, and instead cited the Criminal Code and the Children and Young People Act.
"The CYP Act makes clear that in making a decision for a child or young person about information secrecy and sharing, the decision-maker must regard the best interests of the child or young person as the paramount consideration," the spokeswoman said.
