Since the release of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) Final Report in December 2017, the ACT Government has sought to strengthen the legal and regulatory framework in relation to child protection, through legislative amendments and increased regulatory guidance.
Key amendments and updates include:
- November 2017 - the release of an updated version of the ACT Community Services Department’s “Keeping Children and Young People Safe” to include additional guidance and information about the relatively new Reportable Conduct Scheme (introduced in the ACT in July 2017)
- December 2017 – amendments to the Reportable Conduct Scheme regarding information sharing
- February 2018 – the release of updated Reportable Conduct Scheme Practice Guides and Resources that included additional examples of conduct which should not be engaged in
- July 2018 – an amendment to the Ombudsman Act 1989 (ACT) to expand the scope of the Reportable Conduct Scheme to include religious organisations
- October 2018 – the Australian Students Wellbeing Framework (ASWF) was introduced to replace the National Safe Schools Framework (NSSF) as a key foundational document for all Australian schools
- December 2018 – introduction of a new ‘failure to protect’ offence in the Crimes Act 1900 (ACT).
This article will focus on the new ‘failure to protect’ offence and the replacement of the NSSF with the ASWF.
New ‘Failure to Protect’ Offence
The creation of a ‘failure to protect’ offence was recommended by the Royal Commission in 2017 to encourage organisations to actively manage the risk of sexual offences being committed against children in their care. The Royal Commission discovered numerous cases where perpetrators of abuse had been permitted to continue working even after allegations were made against them, thereby enabling their abuse of children or young people to continue. The ‘failure to protect’ offence is a response to this, as it criminalises a person in authority’s failure to take action once they are aware that there is a substantial risk of an adult committing a sexual offence against a child.
There are four jurisdictions in Australia (Victoria, New South Wales, Tasmania and now the ACT) that have a ‘failure to protect’ obligation or offence in their child protection legislation. The ACT offence is located in section 66A of the Crimes Act 1900 (ACT) and has a maximum penalty of five years imprisonment. Under section 66A, a person commits a criminal offence if:
- the person is a person in authority in a relevant institution; and
- there is a substantial risk that a sexual offence will be committed against a child or young person in the institution’s care, supervision or control by a person associated with the institution; and
- the person in authority if aware of that risk and, because of the position they occupy can remove or reduce the risk; and
- that person intentionally or negligently fails to reduce or remove the risk.
In order to comply with section 66A, schools must understand key terms within the section:
- Person in authority: Not defined within the Act, but may include board members, a school principal, teachers or volunteers.
- Person associated with the institution: Defined in the Act as an adult who owns, manages or controls the institution, is employed by or works as a volunteer for the institution, or engages in a regulated activity with or for the institution.
- Relevant institution: An entity that operates facilities for, engages in activities with, or provides services to children in their care, supervision or control. Examples include schools, religious organisations, hospitals, child care centres, sports clubs and other youth organisations.
- Sexual offence: An offence against Part 3 of the Crimes Act, or any other provision prescribed by regulation.
The other key term to consider is “substantial risk”. A risk will be a substantial if a reasonable person would judge the risk of a sexual offence being committed against the child or young person as substantial. When determining whether a risk is substantial, courts will consider a variety factors, including:
- the likelihood or probability that a child or young person will become the victim of a sexual offence
- the nature of the relationship between the child or young person and the adult who may pose a risk
- the background of the adult who may pose a risk to the child or young person, including any past or alleged misconduct
- any vulnerabilities particular to a child or young person which may increase the likelihood of them becoming the victim of a sexual offence
- any other relevant fact which may indicate a substantial risk of a sexual offence being committed against a child or young person.
If a person in authority has a mere suspicion or tentative belief, they must investigate further to determine whether there is a substantial risk. It is not necessary to prove that a sexual offence has already been committed.
In terms of the action that must be taken under section 66A, any person who has the requisite power or responsibility by reason of their position at the school must act when they become aware that there is a known and substantial risk that a student may become the victim of a sexual offence by a person associated with the school. This action could include:
- immediately removing a current employee who is known to pose a risk of sexual abuse to children from having contact with students and reporting the risk to appropriate authorities
- disallowing a school community member who is known to pose a risk of sexual abuse to children from volunteering in a role that involves direct contact with students
- disallowing a parent who is known to pose a risk of sexual abuse to students from attending overnight school camps as a parent helper.
Schools should make their staff, volunteers or other people in positions of authority aware of their potential obligations under section 66A and inform them of the steps that they should take when they become aware of a substantial risk of a sexual offence. Schools should implement policies and procedures that allow persons in authority to remove or reduce risk to children or young people, including immediately removing potential victims from contact with a potential perpetrator.
Australian Student Wellbeing Framework
In October 2018, the National Safe Schools Framework (NSSF) was replaced with the Australian Student Wellbeing Framework (ASWF). The ASWF was created to act as a foundational document for Australian schools and is intended to acknowledge and support the links between student safety, wellbeing and learning outcomes.
The AWSF superseded the NSSF, which provided nine guiding principles that represented “fundamental beliefs about safe, supportive and respectful school communities”. While the ASWF has a similar purpose to the NSSF, it provides five key elements, rather than the previous nine principles:
- Leadership: visible leadership to inspire positive school communities.
- Inclusion: inclusive and connected school culture.
- Student voice: authentic student participation.
- Partnerships: effective family and community partnerships.
- Support: wellbeing and support for positive behaviour.
These five elements are broad and holistic but are also supported by ‘principles’ and ‘effective practices’. The principles describe how each element contributes to the overarching goal of the framework while the effective practices deliver pragmatic strategies for implementing the elements. Overall, the intention is that the framework will enable entire school communities to create “tiers of support that emphasise appropriate early intervention”.
In the ACT, it is a requirement of registration for non-government schools to ensure that their policies and procedures that relate to the safety and welfare of students have regard to the NSSF or its equivalent. As mentioned, the NSSF has been superseded by the ASWF. Schools should understand their obligations to uphold the ASWF elements and associated principles, and endeavour to incorporate them into their policies, programs, procedures and guidelines. Schools should also ensure that the school community, including staff, students, and families of students, are aware of the ASWF elements and how the ASWF is incorporated into their school community.