Confidentiality

Introduction

Confidentiality is based on the principle that information about an offender's characteristics, circumstances or behaviour is private, and should be made known to others only if necessary. It may be necessary to share information to comply with relevant legislation, or in order to reduce a specified risk.

It is important that offenders are made aware of the limitations to confidentiality, both in terms of the information provided by them and information known about them.

Legislative references

Information held by the Department of Corrections is governed by six pieces of legislation:

• Privacy Act 1993
• Official Information Act 1982
• Victims' Rights Act 2002
• Sentencing Act 2002
• Parole Act 2002, and
• Criminal Justice Act 1985.

The basic principle of the Official Information Act is that information should be made available unless there is good reason for withholding it. The Privacy Act, on the other hand, works on the principle that personal information about offenders is private and it may only be collected and used for lawful purposes.

The Sentencing Act and the Parole Act 2002 make provision for the disclosure of information in specific instances.

Reference: Volume 4, Part I, Chapter 8, Privacy.(Please refer to the related links section on this page).

Offender rights versus community interest

Determining good reason for collecting, using, withholding or releasing information involves weighing up the intrusion on the privacy of an individual offender against the public interest in the release of the information.

What is, and what is not 'necessary' sharing of information can be controversial when the confidentiality of the offender conflicts with the need of the community to know about the offender, either to:

• help the offender, or
• protect the community.

Reference: Volume 1, Part I, Chapter 3, Conducting Enquiries. (Please refer to the related links section on this page).

Professional privilege not applicable

As a probation officer there is no right in law to professional privilege. If an offender confides in a probation officer of any offence they have committed, during the preparation of a report (or at any other time) the probation officer:

• has a responsibility to pass on such information to the relevant authorities, and
• cannot withhold that information if called to give evidence in court.

Every effort should be made to inform an offender of this before they disclose such information.

Important: This also applies to other staff members (managers, administration officers, senior community work supervisors, community work supervisors, etc.)

Note: In some circumstances, the court may nevertheless excuse the probation officer from giving evidence as a witness.

Information provided by others

When interviewing other parties, such as victims and family members, it is important that the following points are explained:

• how any information given will be presented or used, and
• who will have access to it (e.g. the offender).

Reference: Volume 1, Part II, Chapter 12, Distribution of Reports. (Please refer to the related links section on this page).

Note: The offender does not have to consent to the probation officer contacting anyone in the course of preparing a report for the provision of information.