Prior to the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) in December 2017, November was a flurry of regulatory activity in the Australian Capital Territory, with various changes to the Territory’s child protection system proposed and introduced. As other jurisdictions prepare their responses to the Royal Commission, and decide the extent to which they will be taking the final recommendations into account, the ACT is under the spotlight as we consider the effectiveness of its attempts to pioneer reforms and expand its child protection system.

Practices and Procedures for Reportable Conduct

The Reportable Conduct and Information Sharing Legislation Amendment Bill 2017 was presented to the ACT Legislative Assembly on 2 November 2017, with the aim of supporting the operation of the ACT’s recently introduced reportable conduct scheme in relation to information sharing and child safety (refer to our previous article). The Bill was notified on 12 December 2017, and commenced the following day.

A number of information sharing amendments have been made to the Children and Young People Act 2008 (ACT), mainly to enable designated entities and regulated entities to provide reportable conduct information to each other on their own initiative, where they are satisfied as to the relevance of the information.

The more significant amendments are made to the Ombudsman Act 1989 (ACT). The scope of persons considered to be ‘employees’ for the purposes of the reportable conduct scheme has broadened, with subcontractors also now captured. Additionally, a section has been inserted which requires certain practices and procedures (specifically including policies) to be put in place to facilitate notifications and information sharing, deal with reportable allegations and convictions, and to prevent reportable conduct from occurring.

This last requirement takes the ACT’s reportable conduct scheme far beyond a simple notification scheme, essentially requiring entities like schools to implement a reportable conduct policy framework. The ACT Ombudsman is yet to release guidance on how entities should comply with the new obligations.

Reportable Conduct Scheme Consultation

These latest amendments are part of a progressive expansion of the scope of the reportable conduct scheme, to help organisations to become more child safe and child friendly. In a discussion paper published in November 2017, the ACT Government committed to expanding the scheme to cover religious organisations that provide pastoral care and religious instruction services. This change is intended to commence by 1 July 2018.

The discussion paper also suggests that organisations covered by the scheme are required to reflect on how child safe they are, and suggests that elements similar to the Victorian Child Safe Standards could be introduced to require compliance by designated entities such as schools.

With additional amendments planned to be tabled in April 2018, ACT schools could soon be required to comply with a version of the child safe standards to meet an expanded reportable conduct scheme.

New and Expanded Grooming Offences

The ACT has also taken steps to expand its limited grooming offence in response to the recommendations of the Royal Commission.

Currently, it is an offence under the Crimes Act 1900 (ACT) to use electronic means, such as the internet, to suggest to a young person that they commit or take part in a sexual act. The Crimes Legislation Amendment Bill (No 2) 2017 (ACT), introduced into Parliament on 30 November 2017, would broaden this offence to cover conduct in person or ‘by any other means’. This broader offence bears strong similarity to a new offence recently introduced in Victoria under the Crimes Amendment (Sexual Offences) Act 2016, which prohibits encouraging a child under the age of 16 to engage in, or be involved in, sexual activity.

Under the proposed ACT amendment, two new grooming offences would also be created, by prohibiting:

• engaging in conduct with a young person with the intention of making it more likely that the young person would commit, take part in or watch someone else commit or take part in, an act of a sexual nature. Examples include requesting that a child take photos of themselves and provide them to the accused;
• engaging in conduct with a person who has a relationship with a young person with the intention of making it more likely that the young person would commit, take part in or watch someone else commit or take part in, an act of a sexual nature. Examples include encouraging an adult responsible for a child to leave the child alone with the accused.

While these two new offences focus on conduct rather than communication, they are substantially similar to the current Victorian grooming offence under section 49M of the Crimes Act 1958 (Vic), suggesting that the ACT may be using Victorian child protection legislation as a guide in its reform process.

New Guide for Keeping Children and Young People Safe

The month of child protection reforms in the ACT also featured the publication of an updated guide for reporting child abuse and neglect in the ACT, Keeping Children and Young People Safe, authored by Child and Youth Protection Services (CYPS). The Guide aims to provide guidance to the community and mandatory reporters on what, and how, to report to CYPS.

Moving beyond the complex wording of the previous Guide, the updated version provides comprehensive definitions of abuse and neglect and provides information on additional indicators and kinds of abuse and neglect, including family violence, self-harm and danger to self and others.

However, in an effort to improve understanding and clarify obligations, the Guide has created an inconsistency between its interpretation of mandatory reporting obligations, and the phrasing of these obligations under the Children and Young People Act 2008. Despite suggesting that the CYPS is only responsible for investigating abuse and neglect in a family context, this distinction is not drawn under the Act, which contains an offence for mandatory reporters, including teachers, to fail to report any child abuse to the Director-General, regardless of context. There are exceptions to this obligation, but their inclusion in the Guide does not match the wording in the Act.

Where to from here

The lack of up-to-date guidance on reportable conduct, and the publication of inconsistent recommendations on mandatory reporting, may leave schools and other organisations unclear as to the extent of their child protection obligations. Undertaking a gap analysis of child protection policies and procedures against the specific wording of the new and upcoming legislative requirements may help schools to determine whether they are non-compliant with the regulatory changes in the ACT. However, guidance materials should only be used to expand upon how these policies are actually implemented, rather than relied upon to clarify legal obligations - legal advice should be sought where there is any uncertainty.

The positives and negatives of the ACT reform experience should act as an important lesson for policymakers around the country as they develop their responses to the Royal Commission.  The fact that states and territories seem to be taking inspiration from each other's reportable conduct legislation and child protection laws should further support any Royal Commission push for national schemes.  In the absence of national legislation, parliaments are playing a game of follow the leader which surely is not the most efficient use of time and resources.