As the ACT Government prepares to deliver its formal response to the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), it has asked for public feedback and community engagement on the delivery of a series of potential child protection reforms.

On 22 March 2018, the ACT Government launched a YourSay consultation, requesting written submissions on proposed amendments to ACT criminal laws and procedures (Criminal Law Reforms). Submissions close on 27 April and can be made online, by email or post.

The Criminal Law Reforms are quite technical in nature, but the submission questions have been presented in a way that encourages a broad spectrum of feedback.

Summary of the Proposed Reforms

Feedback is being sought on five areas:

Failure to Report Laws

The Royal Commission recommended that all jurisdictions introduce an offence for failing to report institutional child sexual abuse, applying to adults employed by an institution providing child-related services. The ACT Government has asked for feedback on whether such an offence should be introduced, and if so, what should be the scope of persons covered by the obligation and the exceptions to the offence.

In the ACT, while there are mandatory reporting laws currently in place for certain professions such as teachers, and a Reportable Conduct Scheme has been implemented which places reporting obligations on certain employers, legislation does not extend the same obligations to all adult employees in institutions providing child-related services.

The ACT Government has proposed that such an offence be introduced to compel reporting to the Police, in order to put a clear focus on catching offenders.

Failure to Protect Laws

The Royal Commission recommended that all jurisdictions introduce a targeted offence of failure to protect a child against institutional child sexual abuse, endorsing the Victorian offence which already exists. The ACT Government has asked for feedback on whether such an offence should be introduced, and whether the Victorian model should be adopted.

If the ACT were to adopt the Victorian law as a precedent, it would become an offence for persons in positions of authority to fail to protect a child from sexual abuse when they know that someone associated with their organisation poses a substantial risk of sexually abusing children.

The Way Vulnerable Witnesses give Evidence

The Royal Commission recommended that the availability of pre-trial hearings should be extended to adult victims of historic child sexual abuse and other witnesses such as family members. Feedback has been sought on whether new legislation should be introduced on pre-trial hearings and evidence.

The ACT already has a broad range of ‘special measures’ to support victims and witnesses, but adopting the pre-trial procedure recommendations would take the ACT further in terms of protections in place for vulnerable witnesses.

An Intermediary Scheme

The Royal Commission recommended that jurisdictions establish intermediary schemes similar to those currently in place in England and Wales. This intermediary scheme would focus on providing special support for vulnerable witnesses through an impartial intermediary role in the Court process. The ACT Government has asked for feedback on whether such a scheme should be introduced in the ACT.

Victims Support ACT, the Director of Public Prosecutions, and ACT Policing all have support services available for victims and witnesses to assist with preparing for Court cases. However, intermediaries would significantly broaden these support programs because they would have direct involvement in the investigation of complaints and the conduct of a trial.

Other reforms to trial and sentencing procedures for sexual offences

The Royal Commission also made a series of recommendations about reforming trial procedures to ensure the accuracy of fact finding and to improve fairness. Submissions have been requested on whether ACT laws about evidence, and how evidence is considered by Courts and juries, should be reformed.

Timeline of ACT Responses to the Royal Commission

Regular readers of School Governance will note the regularity with which articles are published concerning the ACT’s child protection laws. This can be traced to the large number of changes which have taken place in this jurisdiction in the twilight months of the Royal Commission and its immediate aftermath.

On 1 July 2017, the ACT’s Reportable Conduct Scheme took effect, providing independent oversight of the way employers report, investigate and handle allegations of misconduct involving children (refer to our previous School Governance article).

Following ongoing stakeholder consultation, changes took effect on 13 December which supported the operation of the Scheme in relation to information sharing and child safety (refer to our previous School Governance article). On 15 December, the ACT Government welcomed the Royal Commission’s recommendations, committing to issue a formal response within six months, and to bring religious organisations within the scope of the Reportable Conduct Scheme.

In 2018, stakeholder engagement has continued on how to expand and develop the Reportable Conduct Scheme, and how to act on the recommendations from the Royal Commission. On 2 March, new laws took effect which created an expanded offence of grooming and depraving young people, and substituted a new sexual offence of maintaining a sexual relationship with a young person (refer to our previous School Governance article). On 19 March, the ACT announced it would be joining the National Redress Scheme for abuse survivors, which will commence on 1 July.

The rest of 2018 is likely to feature further responses from the ACT Government to the Royal Commission. It is anticipated that legislation on the Criminal Law Reforms will be introduced into the Legislative Assembly later in the year. The ACT Government’s formal response to the Royal Commission’s Final Report is due in June, and it is likely that further legislative amendments will arise from this. On 1 July, it is also anticipated that legislation will commence that includes religious organisations in the Reportable Conduct Scheme.

The Year Ahead for ACT schools

Schools in the ACT now have a deadline of 15 June 2018 (the date by which the ACT Government has committed to providing its formal response to the Royal Commission) to review their child protection policies and procedures to ensure they are fully compliant with all of the recent legislative amendments and new guidance materials. By completing this review now, schools will be in a good position to respond to any further legal change that occurs as a result of the ACT Government’s formal response.

Schools should focus on:

• integrating the latest regulator guidance into the school’s child protection framework, including the ACT Ombudsman’s Reportable Conduct Resource Kit and Child and Youth Protection Services’ Keeping Children and Young People Safe guide
• ensuring that the Reportable Conduct Scheme has been fully implemented and that practices and procedures are in place to deal with reportable conduct
• whether the school’s child safety code of conduct and professional boundaries policies fully address when certain conduct may be a criminal offence or must be reported, including grooming and maintaining sexual relationships with young people
• whether relevant school staff have received training in child safety and understand the scope of their obligations.