Review of mandatory reporting laws in NSW prompts wider discussion

23 November 2017

A new discussion paper released by the Department of Family and Community Services (FACS) in NSW, Shaping a better child protection system (the Discussion Paper) is a reminder to schools about the importance of mandatory reporting regarding child safety incidents.

Background to the Discussion Paper

The Discussion Paper was released by the NSW Government on 20 October 2017 and outlines proposed amendments to the Children and Young Persons (Care and Protection) Act 1998 and the Adoption Act 2000, which are being considered to help shape a better child protection system and support NSW Government reforms aimed at improving the lives of vulnerable children and their families.

In particular, amendments to the definition of "children's services" for the purpose of mandatory reporting are proposed, to clarify the inclusion of "lessons or coaching in, or providing for participation in, a cultural, recreational, religious or sporting activity, or private tutoring." Additional guidelines are also proposed to be released to outline and provide clarity on mandatory reporters and their obligations in the child protection system for NSW. Submissions to the Discussion Paper close on 30 November 2017.  This Paper, and its proposed extension of mandatory reporting laws in NSW, provides a useful discussion point for the state of mandatory reporting laws in Australia in general, especially prior to the release of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission)'s final report in December.

What is mandatory reporting?

Mandatory reporting, according to the Australian Institute of Family Studies, is a term used to describe the legislative requirement for selected groups of people to report suspected cases of child abuse and neglect to government authorities. Parliaments in all Australian states and territories have enacted mandatory reporting laws of some description, however, the laws are not consistent across all jurisdictions. The main differences concern who has to report and what types of abuse and neglect have to be reported. There are also other differences, such as the "state of mind" that activates the reporting duty (i.e., having a concern, suspicion or belief on reasonable grounds) and the destination of the report.

Who is mandated to report?

The legislation generally contains lists of persons in particular occupations who are mandated to report. The groups of people mandated to notify cases of suspected child abuse and neglect range from persons in a limited number of occupations (e.g., as illustrated in our previous article for QLD), to a more extensive list (Vic, WA), to a very extensive list (ACT, NSW, SA, TAS), through to every adult (NT, and Vic for sexual offences). The occupations most commonly named as mandated reporters are those who deal frequently with children in the course of their work including teachers, doctors, nurses and Police.

What are the similarities and differences of mandatory reporting laws across Australia?

Some of the similarities in mandatory reporting laws across jurisdictions include:

  • defining the extent of abuse or neglect that requires a report
  • stating whether the duty applies only to past or present abuse
  • stating penalties for failure to report (which is meant to encourage reporting rather than police it)
  • providing a reporter with confidentiality regarding their identity
  • providing a reporter with immunity from liability arising from a report made in good faith
  • stating when the report must be made
  • stating to whom the report must be made (usually the jurisdiction's department of child protection)
  • stating what details a report should contain
  • enabling any other person (such as family members, neighbours, friends, and non-mandated professionals) to make a report in good faith, even if not required to do so, and granting confidentiality and legal immunity to these persons.

There are also some differences in mandatory reporting across jurisdictions and these include:

  • range of people mandated as reporters
  • types of abuse and neglect that must be reported
  • differences in state of mind of the reporter
  • compulsion to report suspected abuse.

In addition to state and territory laws, the Family Law Act 1975 (Cth) creates a mandatory reporting duty for personnel from the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia. This includes registrars, family consultants and counsellors, family dispute resolution practitioners or arbitrators, and lawyers independently representing children's interests.

Other reporting laws

Schools in Australia would already be well-versed in the range of 'reporting' requirements which apply to them in addition to mandatory reporting laws.  Triggered by different types of conduct and described using different concepts eg the reportable conduct schemes in ACT, NSW and Vic, these legislative requirements are too varied across jurisdictions to summarise for the purpose of this article. However schools should look to Victoria for an example of an extensive legal framework imposing forms of reporting and disclosure obligations on schools under criminal law, child safe standards and family law (refer to Victoria: 2017 Child Protection Update (June)).   Victoria may have set a high legal threshold but it remains to be seen if it works in practice (there are claims it is too broad in some areas) and whether other states and territories follow its lead.

What do schools need to do?

Mandatory reporting laws are part of a system of responses to child safety and family welfare concerns.   Mandatory reporting requirements reinforce the moral responsibility of community members to report suspected cases of child abuse and neglect and the laws help to create a culture that is child friendly and that will not tolerate serious abuse and neglect of vulnerable children. While it remains to be seen if the recommendations in the Discussion Paper eventuate in legal reform, the recommendations of the Royal Commission in December will also shed light on where this area of law in Australia may be heading.

Lauren Osbich

Lauren is a Content Development and Legal Research Consultant at CompliSpace. She has over ten years of experience in legal research and legal publishing, working nationally across Australia. She studied at Macquarie University completing a Bachelor of Laws with an Honours in English, followed by being admitted as a solicitor of the NSW Supreme Court. Lauren is also passionate about giving back to the community through the not for profit sector as well as donating time to mentor and coach young lawyers in their professional development and finding time to also be a member of a not for profit Board.