20/02/2020

Since the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), all states and territories committed to implementing recommendations from the Royal Commission and reporting progress every year for five years (from 2018 to 2022).

Last year, most state and territory governments (except Victoria and Northern Territory) published their first progress reports and we wrote about this. NT has now published its first report and Victoria has published its first and second reports. All other jurisdictions, except Queensland, have published their second reports.

There is uniformity across all jurisdictions in terms of the actions that were taken and the focus of their progress during 2019. Key themes include:

• Supporting Child Safe institutions:
  • Working with Children Checks – there is a focus on harmonising Working with Children Check systems across Australia
  • Information sharing, record keeping and data collection – all jurisdictions are aiming to reduce the fragmentation of information, and the delays and inefficiencies in information sharing.
• Developing a National Strategy to Prevent Child Sexual Abuse
  • Priority Four Working Group (P4WG) (formed under the Fourth Action Plan for the National Framework for Protecting Australia’s Children 2009-2020) – this group assists the states and territories  to work together to develop a consistent national approach to child safety.
  • In February 2019, the Council of Australian Governments (COAG) endorsed the National Principles for Child Safe Organisations.
• Improving civil litigation and criminal justice systems
  • National Redress Schemes – all jurisdictions are either participating, or will participate, in the Scheme.
  • All jurisdictions have enacted legislation that broadens the scope of child sex offences, enhances the ability of child sexual abuse victims to take civil action and broadens the scope of mandatory reporting.
  • Reportable Conduct Scheme - the Royal Commission stated during the course of  its work that the reportable conduct scheme operating in New South Wales was the  most effective oversight mechanism that it was aware of, to ensure allegations of child sexual abuse in organisations are reported, investigated and monitored. It recommended that all jurisdictions adopt a similar scheme. Several jurisdictions have already implemented reportable conduct schemes, and the others are planning to implement a similar scheme in 2020 or beyond.

Child Safe Standards

All jurisdictions endorsed the National Principles for Child Safe Organisations (National Principles) and intend to either incorporate them into their own existing Child Safe Standards regimes, or to develop such a regime, during 2020.

For example, the South Australian Government intends to integrate the National Principles into their existing regulatory and policy framework. It will develop materials to assist organisations who currently meet the 7 Principles of Good Practice to transition to the 10 National Principles.

In 2019, Victoria reviewed its existing Child Safe Standards, which have been in full effect since 1 January 2017. Although not released at the time that the progress report was published, that review has now recommended that Victoria’s Child Safe Standards be amended for consistency with the National Principles, and planning is well underway for that transition during 2020.

NSW finalised its consultation on a Child Safe Standards regime during 2019, and is now in the process of developing a legislative and regulatory framework that will enable the NSW Children’s Guardian to oversee and monitor compliance.

The ACT Government expressed its endorsement of the National Principles but has not yet finalised the ACT Child Safe Standards scheme through which the Principles will be implemented. Consultation with stakeholders is ongoing and will run from November 2019 to February 2020.

Similarly, Tasmania and Western Australia expressed their intention to develop mandatory Child Safe Standards based on the National Principles along with a system for monitoring and oversight, with legislation expected to be introduced in late 2020.

Online Safety

The ACT, New South Wales and Victoria are working with the Office of the eSafety Commissioner to develop new resources and materials to seek to address online safety issues.

The Tasmanian Government is developing a mobile application that makes it easier for children to make a complaint. There is clear guidance on the use of the app on the Department of Communities website. The Tasmanian Government intends to develop more complementary programs to support the national strategy to prevent child sexual abuse, including educational programs, social marketing campaigns, and the provision of information and help-seeking services.

In September 2019, the Teacher Registration Board of WA updated the “Teacher-Student Professional Boundaries – A Resource for Western Australian Teachers” document. It provides guidance for teachers to maintain professional boundaries with students and was updated to reflect the current teaching environment, including the appropriate use of social media and digital platforms. It can be accessed here.

The Office of the eSafety Commissioner has produced new materials and resources for use in schools during 2019 that support the safe and effective use of ICT.

Mandatory Reporting to Child Protection Authorities

Several states and territories have made changes in this area over the past year primarily in relation to expanding the categories of mandatory reporters.

The ACT and NSW have broadened the scope of professions subject to mandatory reporting. In the ACT, from 1 September 2019, ministers of religion, religious leaders and members of the clergy of a church or religious denomination are also considered to be “mandated reporters”. In NSW, from 1 March 2020, the scope of mandatory reporter groups will include all registered psychologists, persons in religious ministry and persons providing religion-based activities to children. Victorian mandatory reporter categories have been expanded to include out-of-home care workers, youth justice workers, early childhood workers, registered psychologists and school counsellors, and most recently, persons in religious ministry.

At the time of its progress report, ministers of religion in WA were not mandatory reporters. However, amendments to the Children and Community Services Act 2004 (WA) were introduced to parliament in late November 2019. If passed, mandatory reporting requirements would be extended to ministers of religion, including clergy, priests, imams, rabbis etc.

Other states and territories are either currently considering adding persons in religious ministry to the mandatory reporter groups or are expected to make changes during 2020.

In New South Wales, there are now protections for reporters who make reports in good faith from civil and criminal liability, and from retribution for making, or proposing to make, a report. These protections will also apply to reporters who make reports or complaints about child abuse to any institution engaging in child-related work.

Mandatory Reporting to Police

Effective from 1 September 2019, the ACT requires that all adults who reasonably believe that a sexual offence has been committed against a child, must make a report to police. Failure to do so is a criminal offence.

Similar requirements are also in place in NSW and Victoria.

At the time that its progress report was published, religious confessions in Victoria were exempt from the 'failure to disclose' offence if information about the abuse was revealed under confession. The Victorian Government expressed intentions to remove this exemption, in line with other states and indeed has now done so.

Reportable Conduct Scheme

Australian Capital Territory

Further changes to the Reportable Conduct Scheme came into effect on 1 September 2019:

• Religious bodies must nominate an individual as a head of the body who will be responsible for making reports to the Ombudsman. If the religious body does not nominate an individual, the Ombudsman may nominate an individual.
• The definition of “employee” for the purposes of the Scheme has been amended for technical purposes. It clarifies that a person who participates in worship at a religious organisation is not an “employee” of a religious body.
• Further to previous considerations, information disclosed in a religious confession will need to be reported if it relates to sexual abuse against a child, or non-accidental physical injury to a child. The scope of what must be reported is still more narrow than information that must generally be reported under the Scheme.

New South Wales

Legislation has been passed to transfer the operation of the Reportable Conduct Scheme from the NSW Ombudsman’s office to the NSW Office of the Children’s Guardian. Other key legislative changes include:

• expanding the scope of the Scheme to apply to conduct outside of work for employees of public authorities, contractors and sub-contractors if they engage in child-related work
• expanding the scope of the Scheme to consistently cover religious bodies from 1 March 2020
• reducing the timeframe to notify the Office of the Children’s Guardian of an allegation of reportable conduct from 30 to seven days.

Other States and Territories

A Reportable Conduct Scheme has been effective in Victoria since 2017. The Child Wellbeing and Safety Act 2005 (Vic) requires the Scheme to be reviewed by mid-2023. The review will consider whether the Scheme’s application should be expanded to other organisations.

Both the Tasmanian and Western Australian Governments accepted the recommendation to establish a reportable conduct scheme based on the approach adopted in New South Wales. Both governments indicated that they will work on developing this scheme during 2020.

The SA Government is currently assessing the scope and benefits of implementing a reportable conduct scheme in SA.

Information Sharing and Data

The NSW, NT and SA governments are collaborating with the Australian Government in the National Child Protection Information Sharing Project, led by the Commonwealth Department of Social Services, to improve information sharing across Australia.

The SA Government is currently planning for implementation, including deciding on measures to ensure personal information is handled appropriately.

WA’s progress reports stated that it will be one of the first states to use the information sharing platform being developed by the Australian Government. WA will commence using it in early 2020 and will use it to share information related to child protection with other state and territory child protection agencies.

The Victorian Government is developing protocols and operating procedures to facilitate information sharing within the state as well as interstate. The Child Information Sharing Scheme that commenced on 27 September 2018 is in full effect. It allows authorised professionals working in prescribed organisations (known as “information sharing entities”) who work with children, young people and their families to share information with each other to promote children’s wellbeing or safety.

The Victorian Government is also a party to a number of child protection protocols and operating procedures to facilitate information sharing between interstate departments responsible for child protection. Victoria continues to work with other states and territories to facilitate effective information sharing to support responses to institutional abuse.

In the ACT, further improvements to sharing information across jurisdictions is still being developed in consultation with the education sector, and other jurisdictions through the P4WG. More legislative and regulatory changes are anticipated in 2020.

Record Keeping

In accordance with the Royal Commission’s recommendation that records relating to child sexual abuse should be kept for at least 45 years, the Public Record Office Victoria (PROV) is reviewing all records that may relate to child abuse sexual records to ensure that it complies with this recommendation. The PROV will also develop a General Disposal Authority for records relating to child sexual abuse that has occurred or is alleged to have occurred.

In New South Wales, thirty-two retention and disposal authorities have been amended to ensure records relating to child sexual abuse that has occurred or is alleged to have occurred are retained for 45 years, and a new retention and disposal authority for childcare records has been issued. The NSW Government will be developing promotional materials, online training modules and a record keeping toolkit to assist non-government sectors with compliance.

The NT Government has implemented a freeze on the disposal of records concerning youth justice and child protection matters to ensure records that were, or could become, relevant to a claim of child sexual abuse will be protected and available to assist in any potential action. Record disposal freezes apply until June 2020, but there are proposals to extend the disposal schedules for records that relate to child abuse so that they are retained for 45 years.

Teacher Registration

Most of the states and territories are making, or considering making, some changes in this area mostly in relation to information sharing and child protection.

Working with Vulnerable People Checks

There have been some developments over the past year in most states and territories in this area.

Australian Capital Territory

The Working with Vulnerable People (Background Checking) Amendment Act 2019 (ACT) was enacted and will commence on 1 July 2020.

The key changes are that:

• the registration period has been increased from three to five years
• disqualifying offences have been introduced for registration but currently apply to NDIS activity only.

Further amendments will be made in 2020 to enhance the operation and administration of the ACT’s WWVP Scheme, and they will continue to work with other jurisdictions to develop and implement National Standards for WWCCs.

South Australia

On 1 July 2019, a new WWCC system was introduced to be consistent with national WWCC standards. The new system implements the following:

• separate checks people would have required under the previous system are now collated under the new system
• WWC checks are now valid for five years and are transferrable between jobs
• applicants can now initiate a WWCC screening request on their own instead of requiring the employer or volunteer organisation to apply on their behalf
• free screening checks for volunteers.

Tasmania

In June 2019, the Registration to Work with Vulnerable People Amendment Bill 2018 (Tas) passed the Tasmanian parliament and will commence on a day to be proclaimed. It will have the effect of amending Tasmania’s WWCC laws relating to record keeping and screening of employees.

The Tasmanian Department of Education has developed guidance resources to assist schools in responding to children with harmful sexual behaviours. The information contained in the resources is being embedded in principals’ induction programs and is publicly available on the DoE website.

Victoria

The Victoria Government accepted 14 of the 36 recommendations relating to WWCCs. The Government intends to implement these recommendations through amendments to the Working with Children Act 2005 (Vic), which includes:

• expanding the definition of direct contact to ensure WWCCs are required where child-related work involves oral, written and electronic communication, as well as face-to-face and physical contact with a child
• removing references to supervision, to ensure WWCCs are required regardless of whether the child-related work is supervised or not
• requiring kinship carers (family members or other people of significance to a child placed in their custody as part of an out-of-home care arrangement) to obtain a WWCC.

Western Australia

In September 2019, WA was one of the first states to join the National Reference System. This system facilitates WWC Card results being shared across Australia so that all states and territories can record, maintain and share assessment outcomes for each person who applies for a WWC Card.

The WA Police Force has also commenced digitising all criminal records to improve WA’s screening process.

Civil Litigation and Criminal Justice

There have been a number of other actions taken by the states and territories not referred to above and these are discussed below.

Northern Territory

The Northern Territory Government became a fully participating jurisdiction in the National Redress Scheme in November 2018.

In June 2017, the NT Limitation Amendment (Child Abuse) Act had the effect of removing limitation periods in relation to actions for damages by victims of sexual abuse, serious physical abuse or psychological abuse arising from sexual or serious physical abuse. It applies retrospectively and allows survivors to bring civil actions regardless of the time period between the date of the abuse and the bringing of an action.

Sexual offences in the Criminal Code are being reviewed to modernise certain parts, including in relation to the language and offences that relate to persistent child sexual abuse, grooming offences and circumstances where abuse occurs in the context of a relationship of authority.

Further consideration will be given to the liability of institutions for child abuse, including vicarious liability for the actions of an employee who causes harm to a child and the non-delegable duty of care and identifying a defendant, particularly in relation to religious institutions and property trusts.

Tasmania

The following changes have been made to assist survivors of child abuse in bringing civil claims:

• the Civil Liability Act 2002 (Tas) was amended to extend the scope of vicarious liability to people who are “akin to employees”. This term is defined as an individual who has a role within the organisation that:
  • is for the aims or purpose of the organisation; and
  • gives the individual authority, power or control over a child or enables the individual to achieve intimacy with, or the trust of, a child.

A person who carries out a role within the organisation that is for a “recognisably independent business” is not within this scope.

• the Limitation Act 1974 (Tas) was also amended to:
  • allow courts to set aside previous settlements to allow victims to commence proceedings, where it is “in the interest of justice to do so”
  • impose a statutory duty on “organisations engaged in children-related services” and reforms to enable the identification of a proper defendant in civil litigation cases.
• joining the National Redress Scheme on 2 July 2019. The legal arrangements for this partnership will be finalised in 2020.

The enactment of the Criminal Code and Related Legislation Amendment (Child Abuse) Act 2018 (Tas) implements several criminal justice recommendations by the Royal Commission including:

• making the failure to report child abuse an offence
• abrogating confessional privilege for the purposes of this crime
• introducing mandatory reporting obligations for any member of the community who reasonably believes a child abuse offence has been committed must report it to a police officer as soon as possible
• broadening culpability of existing grooming offences to the grooming of people other than a child.

Western Australia

In June 2019, the Civil Procedure (Representative Proceedings) Bill 2019 (WA) was introduced into State Parliament. It would allow victims and survivors of child sexual abuse to access justice and pursue compensation through class actions, in response to large scale wrongs committed by large and powerful institutions.

The Criminal Law Amendment (Uncertain Dates) Bill 2019 (WA) is currently being considered by the WA Parliament. It would amend the Criminal Code Act Compilation Act 1913 (WA) and the Children’s Court of Western Australia Act 1988 (WA) to make provisions to resolve technical barriers that currently bar convictions for serious offences (for example, if the date of the offence or the age of the victim is uncertain), including historical child sexual abuse, where the offence can otherwise be proven.

The WA Government expressed its intention to start work on the remaining criminal justice related Royal Commission recommendations, so more changes are likely to come in 2020.

Authors

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.

Jennifer Ma

Jennifer is a content development assistant in our Sydney Office. She recently graduated from the Juris Doctor, from the University of Sydney and completed her final semester at the University of Vienna. After completing an undergraduate degree in the field of medical sciences at Sydney University, and commencing an honours in neuroscience, she decided that path wasn’t for her. She is now convinced about her passion for the law, and has experience assisting in a variety of legal matters from commercial law, including litigation, to family law.