Child protection is an ever-evolving and expanding web of laws, legislation, standards and guidelines. Some jurisdictions like Victoria have seen more legal upheaval than others, while others such as South Australia have seen state Royal Commissions which have prompted legal change.  What all jurisdictions have in common is that they have forged their own paths, subject to changing government agendas, and influenced by tragic state/territory based child abuse scandals (historic and current), in the absence of a national / federal child protection legal regime.

But regardless of how legal obligations shift, they always seem reactive to the work of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), as well as jurisdiction-specific inquiries. The Royal Commission has so far handed down:

• 36 recommendations on Working with Children Checks;
• 99 recommendations on redress and civil litigation; and
• 85 recommendations on criminal justice.

So far, these have all been interim recommendations. The Royal Commission’s final report will be presented to Federal Parliament on 15 December 2017.

If the length of previous Royal Commission final reports are anything to go by – with the Final Report of the Royal Commission into Trade Union Governance and Corruption stretching over 4000 pages – this document could be many times larger than the Criminal Justice Report (which itself reached 2000 pages), and contain hundreds of recommendations.

With these kinds of numbers in contemplation, predicting the final recommendations with complete accuracy is nigh impossible. However, it is possible to identify the key areas which schools should be aware of and prepared for, based on the previous work of the Royal Commission and recent legislative activity.

Background to the Royal Commission’s Final Report

The task given to the Royal Commission is clearly set out in the Letters Patent, which set out the terms of references for its inquiries. One of the key aspects of the terms of reference is that the Royal Commission inquires into what institutions and governments should do in a number of key areas, including to:

• better protect children against child sexual abuse in institutional contexts in the future;
• achieve best practice in encouraging the reporting of, and responding to, reports or information about, allegations, incidents or risks of child sexual abuse in institutional contexts; and
• address, or alleviate the impact of, past and future child sexual abuse in institutional contexts.

The Royal Commission makes recommendations about policy, legislative, administrative and structural reforms. The Royal Commission has identified and focussed its inquiries and recommendations on systemic issues. These issues which will likely form the basis of the Royal Commission’s final recommendations.  Many of the Royal Commission’s interim conclusions have targeted the particular institutional context provided by schools. One of the Royal Commission’s Issues Papers has also focussed on addressing the risk of child sexual abuse in primary and secondary schools, meaning that final recommendations may specifically target schools.

Scope of child sexual abuse and prevention

Significant work by the Royal Commission has focussed on the prevalence of child sexual abuse in certain institutions (including schools), examining who offends and why, whether some children are particularly vulnerable, and which environments encourage/facilitate abuse. Research reports have already indicated that schools present environments and cultures which may encourage child sexual abuse (refer to previous School Governance articles here and here), suggesting recommendations may focus on how schools in particular, can prevent abuse.

The Royal Commission's examination of prevention methods for child sexual abuse has focused on the efficacy of pre-employment screening, working with children checks and prohibited employment arrangements, as well as recruitment/induction processes for people working with children. It has also considered ways to build safeguards for children, including:

• training and professional development;
• supervision, performance management and disciplinary processes;
• promoting and monitoring compliance with child safe policies and procedures; and
• monitoring, auditing and evaluating strategies used by institutions to prevent child sexual abuse.

Recommendations by the Royal Commission will likely target each of these areas, with rigorous training and integrated child protection policies becoming an increased legal requirement for schools and other institutions.

Heavy focus is likely to be placed on institutional compliance with ‘child safe’ standards or principles. In Issue Paper 3: Child Safe Institutions, the Royal Commission asked for submissions on whether there should be a universal framework for a ‘child safe organisation’, and assistance in identifying the essential elements of establishing an organisation that protects children from abuse in an institutional context.  Such recommendations would potentially draw inspiration from the South Australian Child Safe Environments Principles of Good Practice, the Queensland child and youth risk management strategies and the Victorian Child Safe Standards. With child safety and risk management frameworks currently in place at different stages of development and maturity, there is a significant chance a nationalised set of standards will be proposed.

Reporting and responding

The Royal Commission’s work on reporting and responding has considered how institutions should:

• encourage and act on reports;
• report incidents to external authorities;
• respond to victims, their families and the community; and
• respond to perpetrators.

Recommendations will likely target how institutions like schools report and respond, proposing clearer and more stringent obligations in relation to reporting and responding.

A key element of these recommendations will be the Royal Commission’s conclusions on record keeping and complaints handling, areas already covered in consultation papers. The substantial interim reports on redress/litigation and criminal justice – themselves based on consultation papers – set a precedent for substantial recommendations on records/complaints management. Recommendations are likely to propose law and policy requirements for keeping and maintaining records relevant to child sexual abuse, as well as specific requirements for an institutions’ complaints handling policies to be child-focussed and stipulate specific processes and protections.

Regulation and oversight

The Royal Commission’s work on regulation and oversight has examined who has reporting obligations, and how effective these reporting obligations are. It has also considered the manner in which information is shared and the role of oversight agencies in the child protection system. The Royal Commission’s recommendations in this area are likely to focus on nationalised or model laws on child protection oversight, including the previously proposed national Working with Children Checks scheme.

In its latest report on criminal justice, while the Royal Commission did propose a number of recommendations in relation to mandatory reporting, reportable conduct and other reporting obligations, there was no mention of implementing a national mandatory reporting scheme. However, with previous research articles criticising the significant differences in mandatory reporting requirements, and the Royal Commissions’ new attention on the potential for overlap and duplication in reporting to create inefficiency and uncertainty, final recommendations for a national (or at least jurisdictionally-consistent) system of mandatory reporting and reportable conduct are very likely, with an expansive set of individuals designated as 'reporters'.

Another potential recommendation by the Royal Commission would be the creation of national oversight and regulatory requirements in relation to particular institutions, potentially by making funding or accreditation contingent on child safe practices. Refer to our previous School Governance article on the Royal Commission research report into oversight and regulatory mechanisms. Such a recommendation has the potential to increase registration requirements in relation to child protection, but may also facilitate a national set of school registration standards with which schools will need to demonstrate continuous compliance.

Other obligations

Other areas looked at by the Royal Commission are compensation and redress schemes, the criminal justice system and the adequacy of support services for victims and their families.

Compensation and redress has particular relevance to schools in relation to limitation periods for bringing a court case. It is highly likely that the Royal Commission will recommend that any remaining limitation periods be abolished, and that barriers to achieving compensation are minimised. This may leave some schools open to increased claims of historical sexual abuse – refer to our previous School Governance article.

The Royal Commission has already proposed substantial amendments to the criminal justice system in its recent report, and these recommendations will clearly form part of the final report – refer to our previous School Governance article. Of key importance for schools is the likely recommendation of offences for organisations as a whole, for the criminal offences by individuals associated with the organisation. This means schools being liable for the actions of staff, volunteers and other associated individuals if they failed to take reasonable precautions to manage and control conduct appropriately.

Moving forward – child protection programs

There will of course be practical difficulties in implementing the recommendations of the Royal Commission, particularly those which propose national approaches or greater inter-jurisdictional coordination. It may be that, similarly to proposals under the final report on Working with Children Checks, the Royal Commission will recommend that the Coalition of Australian Governments (COAG) take responsibility for implementing any proposals, and act as a forum for the states and territories to manage the difficulties of implementation.

After the Royal Commission hands down its final report, it can be expected that there will be a significant amount of reactive legislating for years to come, at both the national and state/territory level. It is unclear how fast this legislating will occur, given the pre-Christmas timing of the release of the final report and other Federal Government priorities/distractions (North Korea, section 44 of the Australian Constitution...the list goes on).

Having a documented and well-communicated child protection program, drawing together policies/procedures, together with training and record keeping, and which is regularly monitored and updated, is likely to be essential for a school anticipating the Royal Commission’s final report.