CompliSpace’s Submission to the NSW Office of the Children’s Guardian on Regulating Child Safe Organisations Discussion Paper (Part Two)

11 April 2019

The Office of the Children’s Guardian (OCG) is considering the benefits of regulating child safe standards in New South Wales. It released a Regulating Child Safe Organisations Discussion Paper (Discussion Paper) on 28 February 2019 which proposes changes that would make it compulsory for many organisations in New South Wales to meet the child safe standards. The OCG sought feedback from the public by 29 March 2019.

CompliSpace, is a leading provider of Governance, Risk, Compliance and Policy (GRC&P) programs and consulting services to a variety of organisations across a range of industry sectors. One of our main client groups are our almost 600 non-government schools, over 150 of whom are in NSW. We are engaged by six Catholic Education Offices as well as most of the leading Catholic Orders that provide education services. We also assist community housing providers, churches, aged care providers and financial services companies.

It is in this context that CompliSpace was significantly involved in the implementation of child safe standards (or their equivalent) in Victoria, Queensland, South Australia and Western Australia. Accordingly, CompliSpace recently made a detailed submission to the OCG and responded to the questions in the Discussion Paper.

Part Two of this article sets out CompliSpace’s response to Questions 5 to 9 of the Discussion Paper. Part One set out our response to Questions 1 to 4 (together with some background information)

Q5: What sorts of organisations should help to co-regulate child safe standards?

As occurred with respect to the Victorian Child Safe Standards, where the organisations in a sector are already regulated, licensed or otherwise funded by a government body, that body (e.g. NESA, FACS, Roads and Maritime Services etc) should be primarily responsible for regulating compliance for the sector. This could be done through registration/licensing requirements and funding agreements.

Some organisations may go through ‘child safe organisation accreditation’ with non-government bodies, such as Child Wise, Australian Childhood Foundation or Bravehearts. While this accreditation could be taken into account by the OCG or its co-regulators, it would not be appropriate for the OCG to delegate oversight of statutory compliance to these or similar private organisations.

Q6: How should the OCG support organisations to build their capacity to meet the child safe standards?

We recommend that the OCG and any co-regulators provide very detailed guidance to organisations setting out the sector-specific evidence that will demonstrate compliance with the sector-specific requirements that flow from each of the NSW mandatory child safe principles. These sector-based evidence guides should then be supplemented by resources that give sector-specific written advice, guidance and examples of how to meet the required evidence for organisations, as well as the possibility of online/phoneline contact for general advice and assistance. Training is also an essential component for capacity building, and again should be tailored to the various sectors and the evidence that will be required in these sectors to demonstrate compliance.

For example, the VRQA’s Guidelines to the Minimum Standards and Other Requirements for Registration of Schools sets out the very specific evidentiary requirements that VRQA looks for when considering whether schools in Victoria comply with Ministerial Order 870 and therefore the much broader, non-sector-specific Child Safe Standards. VRQA also provides a host of resources to assist schools to meet these requirements, and conducted an implementation feedback project over 2017 with a sample of schools (the Final Report for this project does not appear to have been released publicly, but we would recommend that the OCG obtains a copy) and involves schools in a compliance program during their cyclical reviews. The Victorian Department of Education and Training also provides significant advice, examples and guidance – aimed at schools and early childhood education providers – in its PROTECT documents about specific actions that can be taken to meet the Child Safe Standards.

Similarly, in WA, the Registration Standards for Non-Government Schools include, in some of the standards, concepts that are similar to some of the National Principles, and the WA Department of Education’s Guide to Registration Standards for Non-Government Schools then sets out the kinds of evidence that will be required to prove compliance, as well as explanatory notes about that evidence.

Also in Queensland, Blue Card Services has published a Child and Youth Risk Management Strategy Toolkit which, although not sector-specific, provides examples and advice to organisations on how they can comply with the Child and Youth Risk Management Strategy Requirements.

The NSW Ombudsman’s approach to reportable conduct regulation and capacity building, including its online fact sheets, training programs and educative approach to regulation, and Catholic Professional Standards Ltd’s resources for assisting Catholic entities to comply with the National Catholic Safeguarding Standards, are also good examples of linking the guidance, resources and advice needed for capacity building with compliance.

Q7: How should the OCG roll out regulation of the child safe standards so that organisations have time to plan and make changes if required?

Victorian timeline

The Victorian timeline for implementing the then new Child Safe Standards went something like this for schools:

  • September 2015: The Victorian Government released the Victorian Child Safe Standards.
  • December 2015 (and Gazettal on 7/1/2016): the Education Minister issued Ministerial Order 870, making compliance with the Victorian Child Safe Standards by 1 August 2016 a registration requirement for all schools.
  • Early 2016: The VRQA published documents setting out in specific detail what it expected schools to do to comply with the standards, including the new requirement that all school principals provide, by 1 August 2016, a Declaration of Compliance (and where only partially compliant, an action plan for compliance by the end of 2016) with the Victorian Child Safe Standards and the Ministerial Order.
  • 1 August 2016: The deadline for compliance for schools.


While complying with this timeline was certainly stressful for CompliSpace and our clients (see below for our recommendations on how this stress could be minimised), having a firm date towards which all schools had to work gave schools the urgency they needed to act. Further, requiring principals to sign a Declaration of Compliance gave them responsibility for determining how their schools complied, where there were gaps and what actions were required to ensure future compliance, again creating the impetus to act.

Our experience with the implementation of the Victorian Child Safe Standards for our non-government school clients leads us to make the following recommendations:

  • Announce a timeline for compliance, with a start date from which organisations will have to comply and an end date by which compliance will have to be demonstrated.
  • Implement a staged commencement for different organisations, starting with government, government-funded and government-regulated organisations.
  • Make the head of each organisation personally responsible for ensuring compliance by requiring them to provide to the OCG or the relevant co-regulator an annual Declaration of Compliance (setting out those principles with which they comply and giving an action plan for complying for those principles with which they do not comply – by a common date for all organisations in the sector).

Main Stressors

We found that the main stressors in the above process were:

  • The Ministerial Order being promulgated in mid-December 2015 and gazetted on 7 January 2016, and the compliance regime commencing on 1 January 2016. For schools, and many other organisations, both the announcement and the commencement date occurred in the middle of the holiday period. This meant that they really were not aware of the new requirements until after they returned from holidays in late January/early February and it therefore reduced by several months the amount of time they had to comply, significantly increasing the panic levels. We therefore recommend that the OCG announces the commencement of the NSW mandatory child safe principles, and gives an end date for compliance, at times that do not conflict with major holiday periods.
  • The short time-frame for compliance. From the compliance commencement date in Victoria of 1 January 2016, principals only had eight months (two of which were taken up by school holidays) to sign their Declaration of Compliance. We would recommend a 12-month time frame for compliance – long enough to enable self-assessment, development of policies and commencement of training but not so long as to reduce the urgency to act.

Q8: What powers should the regulator have to monitor the child safe standards?

Q9: What powers should the regulator have to enforce the child safe standards?

In order to properly monitor and enforce the NSW mandatory child safe principles, the OCG and its co-regulators will need to know all of the organisations in NSW that are required to comply. The co-regulators should already have registers of the organisations that fall within their own regulatory regimes, so the OCG could focus on a register of organisations that fall outside those regimes. While this will still be a difficult and enormous undertaking given that these organisations will include numerous small and possibly unstable not-for-profits and commercial businesses, it will not be possible to monitor and enforce compliance without such a register.

Then, in addition to the self-assessment document proposed by OCG to enable organisations to identify for themselves those areas that require action, the OCG and its co-regulators should develop a short annual survey – containing no more than five simple ‘red flag’ questions – that must be completed by all organisations when they register with the OCG or are accredited, licensed or otherwise come under the auspices of a co-regulator. The survey could then be re-completed annually, along with the Declarations of Compliance or it could be required of a sample of organisations either across sectors or within particular sectors that might be considered at risk of non-compliance. Using these short surveys will enable the OCG and its co-regulators to identify those organisations that appear to be at risk of non-compliance with the NSW mandatory child safe principles and that should be targeted for additional assistance, monitoring and/or review.

Deborah De Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.