In April 2017, the NSW Office of the Children’s Guardian (OCG) released a draft set of guidelines and principles for creating child safe organisations. The Principles for Child Safe Organisations are informed by the research and findings of the Royal Commission in to Institutional Responses to Child Sexual Abuse (Royal Commission) regarding the 10 key elements of a child safe organisation. The Principles are not mandatory. There is currently an open invitation from the OCG for public comment on the Principles.  The release of the Principles coincides with the OCG's statutory review of the Child Protection (Working with Children) Act 2012 (WWC Act) and that review addresses the Principles and queries whether or not they should be mandatory.

Who is the Office of the Children’s Guardian?

The OCG is an independent NSW Government agency established under the Children and Young Persons (Care and Protection) Act 1998 (NSW) whose main role is to work to protect children by promoting and regulating quality, child safe organisation and services. Schools in NSW will know the OCG primarily as the entity that administers Working with Children Checks (WWCCs) in their state.

The agency does not have any enforcement authority in terms of requiring organisations to adhere to the proposed Principles for Child Safe Organisations in comparison to, for example, the Victorian Registration and Qualifications Authority (VRQA) and the Victorian Child Safe Standards, or Queensland’s Blue Card System and the Child and Youth Risk Management Strategy requirements.

What are the Principles?

The Principles are not prescriptive and are not a legal or regulatory requirement for child-related organisations in NSW. Instead, they are intended to assist organisations to think about strategies in addition to the WWCC that can help to keep children safe. Additionally, the Principles have been developed, according to the OCG, to help organisations to think about how they can implement the Royal Commission’s 10 elements of child-safe organisations. The Royal Commission's final report is due on 15 December 2017.

There are four overarching Principles outlined in the consultation draft, including:

• Principle 1: The organisation focuses on what is best for children;
• Principle 2: The organisation respects and values children;
• Principle 3: The organisation welcomes children’s families and communities; and
• Principle 4: The organisation has skilled and cared employees and volunteers.

These are non-prescriptive principles that organisations should use as prompters for developing practical strategies for minimising the risk of harm to children within their organisation and implementing an organisational culture of child safety and protection.

These Principles are extremely high-level and aim to ensure that:

• Children know their rights, they are listened to and their concerns are taken seriously;
• All children are treated fairly, regardless of ethnicity, culture, religion, sexuality and abilities;
• Families support children to participate and take an interest in the organisation; and
• Staff and volunteers are supervised and supported and know how they should behave towards children.

Organisations looking for more prescriptive information can access additional resources on the Office of the Children’s Guardian website.

What is the goal of releasing the Principles?

The goal of these Principles, according the OCG, is to encourage all child-safe organisations in NSW to become ‘high reliability organisations’. This is a term used to describe organisations that are able to manage and sustain almost error-free performance despite operating in hazardous conditions where the consequences of errors could be catastrophic. Essentially, the aim is to ensure that child-related organisations who operate in high risk environments, where the impact of the risk of child abuse is significant, have stringent risk management processes to reduce the probability of harm.

Interestingly, the Principles consultation draft calls out the relative inability of Working with Children Checks to keep children safe from harm and abuse, when compared to the establishment of child safe organisational policies, procedures and strategies. This has been a recurring theme in numerous Royal Commission reports – that alone, pre-employment screening is effective to exclude people who are known to pose a risk of harm to children from child-related work, but do not prevent harm from occurring to children in the future. Historically, NSW child-related organisations have relied, to a fault, solely on WWCCs as a child protection mechanism, whereas states such as Victoria and Queensland have implemented mandatory schemes that require numerous additional strategies and pre-employment screening techniques to ensure the risk of harm to children in minimised.

Review of the WWC Act in NSW: discussion includes whether the Principles should be mandatory

In a timely coincidence, the OCG is also seeking feedback on the WWC Act.  A discussion paper is available here and the deadline for comment is 2 June 2017. Section 8.1 of the discussion paper emphasises the role of the OCG in educating organisations on how to become Child Safe Organisations. It notes that ''at this stage the principles for child-safe organisations are not mandatory'' and explains that reasons for making them voluntary are:

• a 'one-size' fits all approach to regulation may be incompatible with the diversity of organisations delivering services to children; and
• introducing legislative standards would require additional resources from government in relation to compliance and monitoring, as well as an increase in the regulatory burden for many agencies.

The resourcing issue is a controversial one but it is a valuable point, especially considering the regulation-fatigue setting in amongst schools around Australia. In a previous School Governance article we raised the issue of rapid government reform placing unreasonable expectations on government resources, meaning that child protection laws were not being matched by the necessary infrastructure and funding to make them effective: Child protection crisis: how will departments cope with the consequences of increased legislation?

But if the Principles remain voluntary, schools may be faced with an “if not, why not" expectation from the community, similar to that which is adopted by the ASX under the ASX Corporate Governance Principles and Recommendations. Under the CGPRs (which are not mandatory), if the board of an ASX-listed entity considers that a recommendation is not appropriate to its particular circumstances, it is entitled not to adopt it. If it does so, however, it must explain why it has not adopted the recommendation – also known as the “if not, why not” approach. Depending on the community reaction to the Principles, NSW schools may be forced to adopt a similar approach if they remain optional.

The WWC discussion paper asks the following- Question 23: Would organisations be more encouraged to adopt child safe systems and policies if there were mandatory standards that they needed to comply with rather than recommended principles?