Child Protection Overhaul: another piece of SA's new child protection framework finalised 

13 July 2017

A few months ago, School Governance reported on the introduction of the Children and Young People (Safety) Bill 2017 (the Bill) into the South Australian Parliament. After nearly four months of intense debate in both the House of Assembly and the Legislative Council, the oft-criticised Bill passed the Legislative Assembly in the early hours of 6 July.  According to Attorney-General John Rau: "These laws mean greater protection for children, a stronger voice for foster carers and a clear direction on how government agencies must act when a child is at risk."

While there is currently no indication of when the new Bill will receive assent and become law, the overall impact of the Bill will:

  • repeal the Children's Protection Act 1993 (SA);
  • complement the Child Safety (Prohibited Persons) Act 2016 to administer working with children checks (not yet in effect);
  • create a new Children and Young People (Safety) Act to address all other aspects of child protection; and
  • complement the Children and Young People (Oversight and Advocacy Bodies) Act 2016 which established the new Commissioner for Children and Young People.

Overall, the South Australian Government has recognised that the original Children's Protection Act could not be the sole source of child protection legislation in that State!

Background to the Bill

The Child Protection Systems Royal Commission (the Nyland Royal Commission) was established in August 2014 to investigate the adequacy of the child protection system in South Australia. Concluding its two-year investigation in August 2016, Royal Commissioner Nyland’s Report ‘The life they deserve’ made 260 recommendations on improving child protection in the State. Among the recommendations were substantial proposed Amendments to the Children’s Protection Act 1993 (the current Act) to provide stronger protection for children.

The Government’s response was to create a new child protection framework instead of making minor fixes to a system with endemic structural problems. A key part of this framework was the introduction of a Bill on 14 February to replace the current Act.

For more background to the original Bill and the new child protection framework read our previous School Governance article.

On 28 March, the Government filed amendments to the Bill in response to significant public criticism and public consultation, with many parties suggesting the proposed legislation did not go far enough in its protection of children. After passing the House of Assembly on 11 April, the Bill languished in the Legislative Assembly for nearly three months under persistent criticism from the Opposition. The Bill eventually passed by a single vote under a literal cover of darkness, with Legislative Assembly remaining in session until nearly 2 o’clock in the morning on 6 July.

Amendments to the original Bill

The finalised Bill was revised significantly from the original versions, with key changes including:

  • additional obligations for the Minister in providing oversight, including to prepare an annual report in respect of the legislation's operation;
  • new offences and provisions prohibiting and protecting against child marriage, and reinstating provisions to protect against female genital mutilation which already exist under the current Act; and
  • a new section on wellbeing and early intervention (with the Government also suggesting it will introduce an early intervention bill before the end of the year).

Impacts of the new legislation

The Bill in the context of South Australia’s changing child protection system introduces three key changes which schools should be aware of:

1. Increased reporting obligations

The new Bill introduces an extended obligation to report any reasonable suspicion, formed during the course of employment, that a child or young person is or may be ‘at risk’. The definition of ‘at risk’ was significantly expanded from the current Act, extending beyond simply abuse, neglect and serious harm. A child will be taken to be at risk if they have, or likely will, suffer harm, which extends to all physical and psychological harm.

The final version of the Bill included an additional aspect of when a child will be taken to be ‘at risk’; where there is a likelihood that the child will be removed from the State for the purpose of:

  • an unlawful medical procedure (including female genital mutilation);
  • taking part in a marriage ceremony that would be a void or invalid marriage;
  • enabling the child to take part in an activity that would constitute a criminal offence; or
  • enabling an action to be taken in respect of the child that would constitute a criminal offence.

The Bill makes it clear that compliance with reporting requirements does not necessarily exhaust a duty of care. This means that a school may still breach care obligations to children even if mandatory reporting procedures are implemented. Schools should hence have robust policies and procedures in place for both preventing and responding to child harm.

2. Increased children protection policy and procedure requirements

The new legislation reinstates section 8C of the current Act, that a school must have policies and procedures for ensuring that appropriate reports of abuse or neglect are made and that child safe environments are established and maintained.

However, it also requires prescribed organisations to provide a certification statement to the Chief Executive if their policies/procedures are varied or substituted, and not just when they are put in place. It also seems that a copy of policies and procedures must also be produced for inspection at the request of any student at the school, which may impact on the privacy and record keeping procedures of schools.

3. Increased screening requirements for school staff (particularly in boarding schools)

The Child Safety (Prohibited Persons) Act 2016 (which was passed last year) implemented a number of changes to the current process for child-related employment screening, introducing a single working with children check and stronger prohibitions for persons who are deemed to pose an unacceptable risk to children. The new working with children check system will need to be integrated into all schools’ recruitment and induction processes.

However, the Bill also introduces additional screening obligations specifically for boarding schools. Under the newly added section 107, it is an offence for a licensed children’s residential facility to employ a person unless that person has undergone a psychological or psychometric assessment of a kind determined by the Chief Executive. ‘Employed’ persons are specified to include contractors, ministers of religion and volunteers.

This additional requirement for boarding schools seems to reflect the current understanding that the risk of child abuse is significantly higher in boarding schools (as previously reported on School Governance).

What should schools do?

While it is uncertain when the new Bill will commence, the phrasing of the newly commenced Standards for Registration and Review of Registration of Schools in South Australia appear to anticipate it soon becoming law. The Child Safety (Prohibited Persons) Act is also yet to commence, suggesting these significant pieces of legislation may become law around the same time.

In anticipation of the commencement of these pieces of legislation, schools should review their current child protection policies and procedures to prepare themselves for adapting to the new child protection system.

Kieran Seed

Kieran is a Legal Research Coordinator at CompliSpace. In his position, Kieran assists with drafting and review of governance, risk and compliance content programs and client-requested policies, while also writing regular articles for School Governance. Kieran’s key focus areas are student duty of care and school registration. Kieran studied at the University of Sydney, completing a Bachelor of Law and Bachelor of International and Global Studies majoring in Government and International Relations.