As previously reported by School Governance, Victoria introduced a Bill (the Wrongs Amendment (Organisational Child Abuse) Bill 2016 (Vic)) before Parliament at the end of 2016 proposing to extend a child-related organisation’s duty of care to enable such organisations to be held liable for child abuse committed by an individual associated with the organisation. Refer to our earlier article for more information about the proposed new laws.

The Truth Justice and Healing Council (the TJH Council), the Catholic Church’s national body responsible for coordinating the Church’s response to the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) has now released a statement welcoming the Bill. The CEO of the TJH Council, Francis Sullivan, has said “we support these changes which will see the onus of proof reversed so organisations have to prove they took reasonable precautions to prevent the abuse from happening.”

The Wrongs Amendment (Organisational Child Abuse) Bill 2016 (Vic) has passed its Third Reading in Parliament and is expected to be made into law later this year.

Reversed onus of proof for schools

This proposed law will join similar pieces of legislation, both enacted and proposed, around Australia which reverse the onus of proof in child protection incidents. For example, in Tasmania it is an offence under the Children, Young Persons and Their Families Act 1997 (Tas) for a person who owes a child a duty of care to fail to take action that could reasonably protect a child from abuse or harm.

This kind of legislation effectively reverses the traditional onus of proof, requiring schools and other child-related organisations to provide evidence of actions taken to prevent child abuse and mitigate child abuse risk in their organisation.

This trend of proactivity in law-making is spreading nationally partly as a result of the Royal Commission's interim reports, and perhaps as a way for lawmakers to get ahead of the Royal Commission’s final report to be handed down at the end of this year. The Royal Commission, for example, in its Sentencing for Child Sexual Abuse in Institutional Contexts report recommends criminal liability for child-related organisations where a person associated with an organisation commits a sexual offence against a child and the organisation was negligent as to whether that person would commit a sexual offence against such a child. Essentially, a failure to reduce or remove a risk of child sexual abuse would result in a criminal offence under the Royal Commission’s recommendations.

Countdown to the Commission’s Final Report

Increasingly, the states and territories are enacting ‘child-safe’, practical and risk-based schemes in their jurisdictions to promote a strategic, proactive and hands-on approach to protecting children from abuse in schools.

States like Victoria, South Australia and Queensland should be well prepared for the Royal Commission’s (expected) final recommendations at the end of 2017 as each have adopted cultural, risk-based child protection frameworks for their jurisdiction’s child-related organisations in one way or another.

Unfortunately, jurisdictions like New South Wales and the Northern Territory are not keeping pace with the rate of child protection reform and consequently schools in these jurisdictions will have a great deal of work ahead of them to get up to speed if the Royal Commission’s interim reports are anything to go by.

Catholic Church steps up its child protection game

Religious groups, such as the Catholic Church’s TJH Council, and its newly formed body Catholic Professional Standards: an independent agency established to set, monitor and report on child protection standards across the Catholic Church; are responding well to new child protection trends where protecting children is proactive rather than reactive. Refer to our article Catholic Church introduces a new company to protect children and young people for more information.

Similarly, Marist Schools Australia have developed a child protection framework for their schools imposing 11 child protection standards, similar to the Child Safe Standards in Victoria, on all of their schools across Australia – raising the bar and taking a risk-based, best practice approach to protecting children.