Recently, the Royal Commission into Institutional Responses to Child Sexual Abuse shifted its inquiries away from the non-government sector to government authorities.  The Royal Commission has published an extensive research report that examines the strengths and weaknesses of existing regulatory and oversight bodies in protecting children from sexual abuse: Oversight and regulatory mechanisms aimed at protecting children from sexual abuse: Understanding current evidence of efficacy (the Report).

The research was conducted by Professor Ben Matthews from the Queensland University of Technology and the near 300-page Report was released on 10 April 2017.

For the purposes of the Report, the Royal Commission examined regulatory bodies includes non-government schools’ accreditation boards and oversight bodies including Ombudsmen offices.

The Report’s overall finding was that Australian oversight bodies have inconsistent scope and powers in protecting children from abuse in institutions.

Research methodology

It is key to note that the research for this Report was conducted in April of 2016, and as such does not take into account the new reportable conduct schemes for Victoria or the ACT, or the most recent WA Guide to the Registration Standards and Other Requirements for Non-government Schools 2017.

The research involved an analysis of the nature and narrow efficacy of oversight bodies, and an evaluation of the broad efficacy of oversight and regulatory bodies.

Narrow efficacy being an examination of law, regulation and policy that enable the oversight or regulatory body’s effectiveness for example does non-government schools accreditation board include face/nominal requirements for the protection of children from abuse. Broad efficacy refers to the extent to which the body achieves its overarching policy goal of better protecting children from abuse by examining the consequences of the body’s practice.

While a summary of the major findings can be found in this article, they have been selected based on their relevance to non-government schools.

A lack of and a scope for Federal requirements

The Report found that at a Federal level in Australia there are no legal or policy requirements for non-state school registration in relation to managing child abuse. However, the Report also identifies that as the Australian Government facilitates the financing of school education under Federal legislation, funding could be made conditional on compliance with national child protection requirements for non-government schools.

Similarly, while national non-government school representative bodies exist for teachers (the Australian Institute for Teaching and School Leadership for example), there are no conditions for individual eligibility for admission to the teaching profession that apply nationally. There are also no national regulatory measures regarding child abuse for example reporting, training and the provision of resources such as codes of conduct or codes of ethics.

The lack of Federalised child protection legislation and regulation is a recurring theme both for the Royal Commission and School Governance, see our previous article Ministers of religion now mandatory reporters in Queensland which questions why there isn’t Federal consistency in mandatory reporting laws.

Consistently inconsistent: Every jurisdiction for themselves

The Report is almost scathing of the consistently inconsistent requirements for school registration and teacher regulation across the states and territories, and of the lack of legislative child protection initiatives.

Key findings from the research into state and territory non-government schools’ requirements for registration include:

• Legislation in all jurisdictions does not require schools to have processes for teacher training in child protection generally or child sexual abuse specifically;
• Every jurisdiction except Tasmania requires the school to have policies and procedures for student safety;
• Criminal history checks are only required for the purposes of registration in three jurisdictions’ legislation;
• Queensland is the only jurisdiction to require specific training for teachers relating to the duty to report child sexual abuse; and
• Registration standards are generally not particularly detailed while jurisdictions such as Western Australia and Victoria providing detailed accompanying documentation and guides.

The Report states that “there is some variance in the legislative frameworks, and considerable diffusion in the standards adopted across jurisdictions."

Key findings from the research into jurisdictional regulation of non-government school teachers:

• South Australia is the only jurisdiction to expressly require applicant teachers to have completed a mandatory notification training course before registration;
• Victoria is the only jurisdiction to have a state-wide code of ethics that requires child protection training for teachers;
• Only Catholic schools in South Australia and Western Australia have a sector-wide policy that requires teachers to undertake training in child protection;
• Victoria and NT are the only jurisdictions with state-wide codes of ethics that require teachers to report child sexual abuse; and
• Legislation in only six out of eight jurisdictions require an assessment of fitness to practise before a teacher can be registered to teach in a non-government school.

Proposed solutions

A considerable portion of the Report examines current Federal or harmonised schemes in Australia and overseas to investigate possible solutions to the inconsistency in child protection legislation, regulation and policy across each jurisdiction.

For example, the Report examined the occupational health and safety (OHS) schemes in Australia which, prior to harmonisation, had many of the same problems and pitfalls that currently plague Australia’s child protection schemes. Issues such as fragmented administrative jurisdictions, overwhelming and complex legal regulation and inconsistent coverage across workplaces all ring true to the current state of child protection policy in Australia.

The Report states that the OHS laws in Australia are “notable for their generally centralised nature, broad applicability across industries, and diverse methods of achieving key objectives.”

While further research would need to be conducted outside the scope of the Report to give definite findings about whether such a harmonised scheme could work for child protection in Australia, it’s a promising first step that solves the issue of our jurisdictional system where a single national body may be impractical, so a nationally consistent regulatory ‘harmonised’ approach could be the answer.