December 2022 will mark five years since the close of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) and the release of its final report. The end of 2022 is also the timeframe by which the Commonwealth, each state and territory and certain institutions must provide their final progress report on their implementation of the Royal Commission’s recommendations.
To observe the significant impact that the Royal Commission has had on schools and the forthcoming five-year anniversary of its closure, we have written a series of articles over the course of 2022, exploring the Royal Commission’s recommendations and their implementation throughout the country. To date, School Governance has covered working with children checks, reportable conduct schemes, limitation periods and setting aside settlements for civil litigation claims of child sexual abuse and ‘failure to report’ and ‘failure to protect’ obligations.
This is the fifth and final article in the series, and it will explore the impact of the Royal Commission’s recommendations in relation to sharing information about the safety and wellbeing of a child.
The Royal Commission’s Recommendations on Information Sharing and Implementation
Volume 8 of the Royal Commission’s Final Report 2017 examined information sharing between institutions with responsibilities for children’s safety and wellbeing, and between those institutions and relevant professionals. The Royal Commission’s inquiry heard multiple examples of information in relation to children’s safety not being shared, or not being shared in a timely and effective manner, which had the serious consequence of enabling perpetrators to continue their involvement in an institution, or to move between institutions and jurisdictions and pose ongoing risks to children.
The Royal Commission found that inadequate information sharing was not just a historical problem, and that there were a number of barriers to timely and appropriate information sharing to protect children in institutional contexts, including:
- restrictions under privacy legislation or other confidentiality and secrecy provisions in legislation governing the provision of services for children
- reluctance to share, even where permitted, due to concerns about privacy, confidentiality and defamation and confusion about the application of complex and inconsistent laws
- institutional culture, poor leadership and weak or unclear governance arrangements may also inhibit information sharing and, as a result, undermine the safety of children.
The Royal Commission made a number of recommendations to improve information sharing across sectors, underpinned by the principle that children’s rights to safety and wellbeing, and specifically to protection from sexual abuse, should be prioritised over other rights and concerns (which may include privacy, confidentiality and the laws of defamation). Specifically, some of its recommendations included that:
Recommendations 8.6 and 8.7
- there should be nationally consistent legislative and administrative arrangements, in each jurisdiction, with minimum of nationally consistent provisions to:
- enable direct exchange of relevant information between a range of prescribed bodies, including service providers, government and non-government agencies, law enforcement agencies, and regulatory and oversight bodies, which have responsibilities related to children’s safety and wellbeing
- permit prescribed bodies to provide relevant information to other prescribed bodies without a request, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts
- require prescribed bodies to share relevant information on request from other prescribed bodies for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts, subject to limited exceptions
- explicitly prioritise children’s safety and wellbeing and override laws that might otherwise prohibit or restrict disclosure of information to prevent, identify and respond to child sexual abuse in institutional contexts
- provide safeguards and other measures for oversight and accountability to prevent unauthorised sharing and improper use of information obtained under the information exchange scheme
- require prescribed bodies to provide adversely affected persons with an opportunity to respond to untested or unsubstantiated allegations, where such information is received under the information exchange scheme, prior to taking adverse action against such persons, except where to do so could place another person at risk of harm.
Recommendations 8.10 and 8.11
- The Council of Australian Governments (COAG) Education Council should consider the need for nationally consistent state and territory legislative requirements about:
- the types of information recorded on teacher registers
- the information exchange on teachers registers between teacher registration authorities in other states and territories and teacher’s employers, including information about disciplinary actions, investigations into conduct, findings of investigations, and resignation or dismissal from employment.
Current Status of Legislation
In 2022, all states and territories have legislation* (Information Sharing Legislation) which permits, to some extent, the sharing of information to promote a child’s safety or wellbeing between prescribed bodies which have responsibilities related to children’s safety and wellbeing (including schools) and as envisaged in Recommendations 8.6 and 8.7.
In addition, there are general exceptions to privacy laws which enable the sharing of information to lessen or prevent a serious or imminent risk to an individual’s life, health, safety or welfare.
* Chapter 25 of the Children and Young People Act 2008 (ACT); Chapter 16A and section 248 of the Children and Young Persons (Care and Protection) Act 1998 (NSW); Part 5.1A of the Care and Protection of Children Act 2007 (NT); Chapter 5A of the Child Protection Act 1999 (Qld); the Education and Children’s Services Act 2019 (SA); the Teacher Registration and Standards Act 2004 (SA); the Children and Young People (Safety) Act 2017 (SA) the Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA); Part 5A of the Children, Young Persons and Their Families Act 1997 (Tas) Part 6A of the Child Wellbeing and Safety Act 2005 (Vic) and the Child Wellbeing and Safety (Information Sharing) Regulations 2018 (Vic); Section 23 and Part 3, Division 6 of the Children and Community Services Act 2004 (WA).
** NB some jurisdictions also have information sharing schemes connected to family violence, which may also be relevant to child safety and wellbeing information.
Information Sharing About a Student’s Wellbeing or Safety in the School Context
In the school context, there are a number of situations in which a school will need to consider whether it can and should share or seek information in relation to a child’s safety or wellbeing.
The examples below provide some general considerations for a school in these situations, and the suggested outcomes should be verified against the relevant state or territory’s Information Sharing Legislation (listed above) and the school’s policies and procedures on information sharing. Provided that it is safe to do so, the person sharing the information should also seek the consent of the person prior to sharing their confidential information, although consent is usually not required to share information under Information Sharing Legislation or privacy law exceptions.
The school is contacted by relevant government’s Child Safety/Protection Services for information about a child and their family
Depending on the urgency of the situation, these kinds of requests should be made in writing, if possible – an email is usually sufficient.
Under Information Sharing Legislation, once they receive this request, a prescribed person at the school (such as the principal) usually must share this information with the relevant government’s Child Safety/Protection Services. However, caution should be exercised when sharing the information; for example:
- the identity and position of the person requesting the information should be verified – this can be done by requesting that the person email you with their email signature
- the school’s policy and procedures should be followed – has the right person been contacted at the school for the information? Are they authorised by the school to release the information?
The school is investigating the alleged conduct of an employee against a child, and the relevant Police and/or Child Safety/Protection Services, and/or another prescribed body, may have information that will assist its investigation
Under most jurisdictions’ Information Sharing Legislation, written requests can be made to the relevant Police or Child Safety/Protection Services, or another prescribed body, to seek information that could inform the school’s investigation, provided that the information sought relates to the safety or wellbeing of a child/children connected with the allegation. The person requesting the information should provide as much information as possible about why the information is sought and how it relates to the safety and wellbeing of the child or a particular group of children (for example, all children in the Year 1 class).
If the school is operating in a jurisdiction that has a Reportable Conduct Scheme, seeking this information is often encouraged by the regulator of the Reportable Conduct Scheme, as it is evidence that will support the outcome of the school’s investigation, and to avoid unnecessary duplication. For example, if the allegation involves criminal conduct, and the school knows that the person was investigated by Police, the school may seek that information from Police, and can base its Reportable Conduct finding on the evidence provided by the Police, avoiding the need to duplicate interviews with a relevant witness.
The school is contacted by another school for information in relation to disciplinary action taken against a former employee
Like the scenario directly above, the relevant Information Sharing Legislation needs to be followed, and any information that is shared must be relevant and connected to the safety and wellbeing of a child. The school that was requested to provide the information should obtain as much detail as possible from the school that is requesting the information, to ensure that the information is being sought for a proper purpose and that only such information as satisfies the connection to the child’s safety and wellbeing is provided.
This kind of information could also be provided under exceptions to privacy laws, if the former employee’s misconduct was so serious that they are likely to pose an imminent or serious risk to the safety of children at other organisations.
When considering requests to provide this type of information, or when providing this type if information without a request, a school may need to seek legal advice, particularly if there are any concerns about privacy or defamation. If the school is operating in a jurisdiction that has a Reportable Conduct Scheme, the regulator of that Scheme can also be contacted for advice.
The school takes disciplinary action against a teacher for serious misconduct
Schools should check whether they are required to share this information with the teacher registration authority in their state or territory. There are often penalties attached to the failure to share such information.
The school is contacted by a lawyer for a parent, or by a lawyer appointed to represent the child, in family court or children’s court proceedings
While not generally covered by Information Sharing Legislation, this is a situation in which many schools find themselves. In general, information can be shared with the consent of the person whose information it is. In the case of information about a child, usually a parent can provide that consent, as can a child who is capable of understanding the nature and consequences of their decision.