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Royal Commission: Provides Guidance to Schools on Recordkeeping Practices

21/09/16
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The Royal Commission into Institutional Responses to Child Sexual Abuse (the Commission) has uncovered one of the core failings of institutions in which children were sexually abused; recordkeeping. In its Consultation Paper, Records and recordkeeping practices released on 2 September 2016 (the Paper), the Commission draws attention to the fact that there is 'no single unified approach to recordkeeping and archiving embracing government and non-government sectors.'

This is a systemic problem as it puts victims of historical or current child abuse at a significant disadvantage when they come to press charges against perpetrators.

Poor recordkeeping practices

The Paper states that in many of the cases investigated by the Commission, records went missing, were destroyed, were damaged and in some circumstances, records of child sexual abuse were never created at all despite victims' assertions that an offence was reported. Records include physical records, digital records and audio and visual recordings, as well as photographs and other documents.

The Commission's investigation found that records were not kept of:

  • complaint disclosures;
  • disclosures of suspicion regarding possible perpetrators; and
  • admissions of sexual abuse by perpetrators.

Institutions, including child care homes, orphanages and schools, have told the Commission that they did not have policies and procedures to direct them on recordkeeping and therefore, unsurprisingly, many records were destroyed. Generally, this has been due to the institutions' policies or directions on record disposal. On occasion, however, the destruction has been reckless.

Records were damaged and lost in the following ways:

  • loss of hard copy records;
  • loss of records due to transfers from hard copy to digital;
  • improper or insufficient indexing;
  • records being lost due to the use of multiple or convoluted indexing systems; and
  • records being stored inappropriately for example, in employees' homes.

The Paper lists specific examples from Case Studies to demonstrate poor recordkeeping practices in schools.

Case Study 5 involved the Salvation Army's response to abuse at boys homes in NSW and Queensland. Detailed records were not kept or provided to the Commission. There were no written records of complaints against two staff members who were the subject of many allegations of sexual abuse.

Legislative Reform

In the 1980s, legislation was created across Australia to protect records and ensure that recordkeeping practices were being adopted at government agencies and public institutions. Public record enactments now require recordkeeping obligations so that 'full and accurate' records of the business and activities are created – with penalties for non-compliance. It is important to note that private institutions are not subject to public records legislation. Many non-government institutions such as independent or Catholic schools have developed more significant recordkeeping practices in response to national privacy legislation but this is not the case across the board. Some States have introduced registration requirements that impose recordkeeping obligations. For example, in WA, the principal of a school must retain a student's enrolment and attendance records for seven years from the final day of enrolment.

But there is no clear directive on how records relating to other topics should be kept.

For further examples of legal requirements of document retention, see our article.

What records are schools required to keep?

When storing records, schools have to consider their duty of care to students. Past child abuse actions can come to light decades ahead, with the Commission's Interim Report citing 22 years as the average period of time between an offence and the resulting claim. Because of this, schools should continue to support their students and their ex-students by storing and protecting all documentation relating to sexual offences for a sufficient period of time.

In addition, under the Crimes Act 1958 (Vic), it is an offence to intentionally destroy documents that a person knows are, or may be, required as evidence in a judicial proceeding in order to prevent them being used in a court. Each State and Territory has equivalent legislation.

Other laws require that non-government schools must ordinarily keep records of:

  • student names;
  • student attendance;
  • student results;
  • complaint handling;
  • financial management;
  • health and safety of staff and students;
  • staff qualifications;
  • training; and
  • Working With Children Checks.

Additionally, the Australian Privacy Principles (APPs) under the Privacy Act 1988 (Cth) are applicable. Schools are not permitted to collect personal information unless it is reasonably necessary for one of their functions or activities. Information that is not considered 'personal' can be collected without restriction. Schools, further, must ensure that personal information is kept securely (Principle 11). When a school no longer requires the information, it can be destroyed.

However, the APPS are general in their application and do not expressly take into consideration child protection considerations.

Following the introduction of the APPs in 2014, many institutions have developed better practices for the maintenance and retention of records. The Commission reports that while some of these institutions are making positive strides ahead, contemporary recordkeeping is still 'affected by poor maintenance and retention practices.'

The Commission's Five Proposed Principles

The Commission states that it has 'opted to develop principles rather than recommend large-scale legislative or policy reform.' This decision may bring some relief to schools who are subject to constant legal change, generally on the topic of child protection and normally resulting in an increase in obligations and administrative requirements.  That said, the principles should not be ignored as they are a source of valuable guidance for non-government schools in the absence of formal legislation or recordkeeping directives applying to their industry.

The Paper has introduced Five Proposed Principles (the Royal Commission Principles) for recordkeeping. In doing so, the Commission has indicated its intention to encourage schools to form stronger policies for the protection of children, going beyond current recordkeeping legal requirements and privacy obligations. The Royal Commission Principles will guide schools in developing their policies. They are:

1. Creating and keeping accurate records is in the best interest of children.

Creating, maintaining and disposing of records should be supported by policy and training for staff. Institutions caring for children should promote the best interests of the child. Recordkeeping should be 'an aspect of such institutions' core business'.

2. Accurate records must be created about all decisions and incidents affecting child protection.

Institutions must have extensive and detailed reports of all risks, suspicions, allegations and incidents of child sexual abuse. These records must be an accurate representation of the event that clearly outlines all relevant factors. The reports should be created as soon as possible after the event - the date should be included in the document.

3. Records relevant to child sexual abuse must be appropriately maintained.

For appropriate maintenance, records should be indexed appropriately and securely stored. Cross referencing is to be used to ensure persons using the records are aware of all the relevant related information.

4. Records relevant to child sexual abuse must only be disposed of subject to law or policy.

The Commission accepts that not all records should be retained permanently. But destroying institutional records regarding child sexual abuse can be a breach of the law (as we have seen above). Greater transparency and consistency can help eliminate some of the confusion and complexity for victims and survivors and can arguably assist institutions and their staff to better understand their practices and obligations. Ideally, institutions will define the period of time for holding different records, the type of records it will archive and how it will manage this as well as destruction arrangements.

5. Individuals’ rights to access and amend records about them can only be restricted in accordance with law.

Where individuals have been named in an institution's record, there is a right to full access of those records unless contrary to law.

Summary

Victims of child abuse have told the Commission of their frustration of institutions' mismanagement of records. Some records were not created, others were limited, many also have been lost. The result is that the victims feel disempowered knowing that their disclosures were not treated appropriately given the gravity of the offences. Poor recordkeeping has hindered disciplinary action, and criminal and civil proceedings, and prevented identification of risks and incidents of child sexual abuse.

The Royal Commission's Five Proposed Principles for recordkeeping are not legally enforceable, they are, however, useful to follow. Schools should consider how to use the Royal Commission Principles to help with their recordkeeping practices.

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