Schools in South Australia should be ready for new child protection legislation which will significantly change the parameters of their mandatory reporting obligations. With the commencement of the Children and Young People (Safety) Act 2017 (SA) and its associated regulations, almost all the pieces of the new child protection framework have fallen into place, with new definitions of "children at risk" and "harm", as well as additional neglect and grooming offences, resulting in increased obligations for all teachers, employees and volunteers at the school.
New Legislation for a New Framework
Currently, all schools in SA are covered by the Child Protection Act 1993 (SA), which is the key source of child protection requirements for schools. However, as mentioned in our previous article, after 22 October 2018, all schools in SA will be covered by three new Acts:
- Children and Young People (Safety) Act 2017 (SA) (Safety Act)
- Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA) (Advocacy Act)
- Child Safety (Prohibited Persons) Act 2016 (SA) (Prohibited Persons Act).
There are also three new supporting regulations:
- Children and Young People (Safety) Regulations 2017(SA) (Safety Regulations)
- Draft Child Safety (Prohibited Persons) Regulations (Draft Prohibited Persons Regulations)
- Children and Young People (Oversight and Advocacy Bodies) Regulations 2017(SA) (Advocacy Bodies Regulations).
The Advocacy Act commenced on 18 December 2017 and the Safety Act commences on 22 October 2018. Only the corresponding Advocacy Bodies Regulations have commenced on 5 December 2017. However, the Safety Act brings about significant changes for schools including new definitions, new offences and new mandatory reporting obligations for compliance by the 22 October 2018.
New Definitions for Children at Risk
All schools in SA will be governed by the Safety Act from 22 October 2018, in addition to the remaining parts of the Child Protection Act 1993 (SA), which together address the responsibility for protection of children and young people from “harm”.
Under section 17 of the Safety Act, harm in relation to a child or young person means:
- physical harm
- psychological harm (whether caused by an act or omission), including harm caused by sexual, physical, mental or emotional abuse, or
Under section 18 of the Safety Act, children and young people can also be “at risk”. This definition of children or young people being at risk or likely to be at risk is significantly expanded from the current Children’s Protection Act 1993 (SA) and includes a likelihood that they will:
- suffer harm
- travel interstate for an unlawful medical procedure (including female genital mutilation)
- travel interstate for a marriage ceremony
- have parents who are unwilling or unable to care for them
- are persistently absent from school with no explanation
- have no fixed address.
Schools will notice that "children or young people at risk or likely to be at risk" is significantly different to the mandated definition of "child abuse" in the current Children's Protection Act 1993 (SA). SA has also become the first state in Australia to introduce two new factors for risk - unlawful medical procedures (including female genital mutilation) and child marriage. The two new offences apply both to removing a child from the state or bringing a child into the state for either an unlawful medical procedure or a child marriage, and both offences have penalties which are double that applicable under any other previous laws. By implementing these two new risk factors, SA is responding directly to recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), as mentioned in our previous article.
New Neglect and Grooming Offences
There have also been complementary amendments in the new child protection framework to the Criminal Law Consolidation Act 1935 (SA) to introduce new mandatory reporting offences for criminal neglect and grooming. Both amendments also respond directly to recommendations from the Royal Commission.
In SA, it is already an offence under section 63B of the Criminal Law Consolidation Act 1935 (SA) to procure a child to commit an indecent act. It is now also an offence under section 139A of that Act to knowingly communicate, make false representations or arrange to meet with a child, with the intent to commit a grooming offence. Schools should note that these grooming offences only apply to children (defined in S139A as a person under the age of 17) rather than children and young people (defined in the Safety Act as persons under the age of 18). The passing of this amendment was prompted by the death of Carly Ryan in 2007, who was pursued and groomed online prior to her death by an adult predator.
There is also a new offence for "criminal neglect" under section 14 of the Criminal Law Consolidation Act 1935 (SA) which is an offence for criminal liability for neglect. A strict liability offence, in circumstances where a duty of care is owed to a child, and death or harm result, there may be a maximum term of imprisonment for life. Schools should also note the differing age range for this offence with the criminal neglect offence applying to children (defined in Division 1 of the Act as a person under the age of 16) or vulnerable adults (a person aged 16 years or above who is significantly impaired through physical disability, cognitive impairment, illness or infirmity). Again, this offence applies to a different age range (i.e. a third and separate age range) to the definition under the Safety Act referred to above under which children and young people are persons under the age of 18.
New Mandatory Reporting Obligations
For the purposes of the Safety Act, a child or young person being at risk triggers mandatory reporting requirements under the new child protection framework for both reporting suspicions or actual incidences. However, the Safety Act also makes it clear that compliance with mandatory reporting requirements does not necessarily exhaust a duty of care. This means that a school may still breach duty of care obligations to children even if mandatory reporting procedures are implemented.
Under section 31 of the Safety Act, a mandatory reporter must, if they suspect on reasonable grounds that a child or young person is, or may be, at risk and that suspicion was formed in the course of the person’s employment, report that suspicion. The Safety Act is also clear that mandatory notification is not needed under the new mandatory reporting regime in only two circumstances:
- if the person believes on reasonable grounds that another person has reported the matter, or
- if the person's suspicion was due solely to having been informed of the circumstances that gave rise to the suspicion by a police officer or child protection officer acting in the course of their official duties.
Schools should already be familiar with mandatory reporting obligations but should be aware that these restrictive obligations have been significantly expanded to include children at risk, with both suspicions or actual incidences based on reasonable grounds included. Reasonable grounds has not been defined as yet in any of the guidance materials surrounding the changes to mandatory reporting obligations.
Further Changes Still to Come
While schools are grappling with the new child protection framework, they should keep in mind that there is further change still to come, including:
- the new Working with Children Check Scheme commencement under the Prohibited Persons Act and the Draft Prohibited Persons Regulations
- provision of the Outcome Framework for Children and Young People which will replace the Child Safe Environments Framework
- further debate in relation to proposed changes to mandated reporting for all priests in confession.
In anticipation of the 22 October 2018 commencement of these new obligations, schools should review their current child protection policies and procedures to prepare themselves for adapting to the new child protection framework.