As we move further into the colder months, schools are now well into the winter season of school sports: netball, rugby, soccer, hockey and so forth. For many schools, this time of year cements the practice of senior students of the school coaching teams of younger children in their respective sports or other co-curricular activity on an unpaid or volunteer basis – a continued tradition in schools across Australia. This practice can provide an “in-house” leadership opportunity for senior students and help them tally up some community service hours which are often required in the senior years in relation to a range of programs.

Senior students in these coaching roles fall under the definition of “direct contact volunteers”: individuals in volunteering roles that involve providing support, guidance and supervision directly to students. Direct contact volunteers could also potentially have unsupervised contact with students in the course of their volunteer work.

Given that these senior students have an element of supervisory responsibility over younger students, the question arises as to what child protection obligations and responsibilities fall on these older students in their roles as coaches.

Legal Obligations

Following the release of the Final Report of the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission), all states and territories have implemented at least some of the Royal Commission’s recommendations into their legislation in various ways. Across the nation, this has raised the standards for schools to provide environments that minimise the risk of child abuse. The following states and territories have established mandatory compliance by schools with child safe standards:

• Victoria: schools must comply with the Victorian Child Safe Standards under Ministerial Order 870
• Western Australia: non-government schools must comply with the WA Commission for Children and Young People’s Child Safe Organisation Guidelines as a part of their registration standards
• Queensland: non-government schools (due to their classification as organisations subject to the Blue Card system) must comply with, and incorporate, the Child and Youth Risk Management Strategy, which incorporates principles that are similar in many respects to the Royal Commission’s Child Safe Standards
• South Australia: the Department for Education has developed a set of Principles of Good Practice that organisations such as schools must comply with in order to provide a child safe environment.

This national shift has also resulted in more stringent legal obligations on individuals working in schools. However, the specific requirements of these obligations on individuals in capacities such as these senior student coaches differ from state to state and may depend on the age of the student.

Depending on the state or territory, these students, and their schools, may have legal obligations in relation to:

• mandatory reporting to the relevant child protection department of alleged or suspected child abuse, neglect and grooming
• mandatory reporting to police of alleged or suspected criminal offences against children
• a duty to protect, as a result of the statutory criminal offence of failure to protect, students from harm
• Working with Children Checks (or their equivalent)
• a reportable conduct scheme
• statutory information sharing about children’s welfare or wellbeing
• training in relation to child protection issues.

Given these potential requirements, it is important for these students to not only be aware of their legal obligations, but also of relevant codes of conduct, the procedures for the internal reporting of child protection issues within their school and of key indicators of child abuse, neglect and grooming.

Mandatory Reporting of Alleged or Suspected Child Abuse, Neglect and Grooming to Relevant Child Protection Department

Mandatory reporting obligations in various states and territories require certain individuals who work with children to report alleged or suspected harm to children.

By way of example, in South Australia, the mandatory reporting obligations regarding child abuse established by the Children’s Protection Act 1993 (SA) make no mention of age. This means that senior students will be required to meet the same child protection responsibilities as all other obliged staff in the school. This is also the case in the Children and Young People (Safety) Act 2017 (SA) (Safety Act), which is in effect and is in the process of superseding the 1993 Act (which is to be repealed). The Safety Act classifies volunteers, regardless of age, as employees in section 30(4) and imposes mandatory reporting obligations on employees under section 31.

On the other hand, in New South Wales, mandatory reporting obligations only apply to individuals in managerial positions or those delivering services to children in the course of paid employment, thereby exempting volunteer coaches (section 27 Children and Young Persons (Care & Protection) Act 1988 (NSW)).

Legislation in Western Australia (section 124B(1)(a) Children and Community Services Act 2004 (WA)) and Victoria (section 182 Children, Youth and Families Act 2005 (Vic)) exempt these students by only establishing mandatory reporting obligations for lists of prescribed professions, neither of which include coaches.

Mandatory Reporting to Police of Alleged or Suspected Criminal Offences Against Children

In some situations, individuals will be required to report alleged or suspected offences against children to police, in addition to a child protection department. In New South Wales, for example, section 316A of the Crimes Act 1900 (NSW) requires reporting to the police by individuals who know, believe or reasonably ought to know that a child abuse offence has been committed, or if the individual has information that would aid in the apprehension or conviction of the offender. However, this only applies to adults, so it would only apply to students over the age of 18. Section 327 of Victoria’s Crimes Act 1958 imposes a similar obligation on adults. The Northern Territory, however, goes further. Under section 26 of the Care and Protection of Children Act 2007 (NT), any “person” (not just an adult) is guilty of an offence if they believe on reasonable grounds that a child has suffered or is likely to suffer certain harms and they fail to report this to police.

Some jurisdictions also require certain persons to report their suspicions to authorities other than police. Section 366 of Queensland’s Education (General Provisions) Act 2006, for instance, requires school staff to report certain concerns about student safety to the principal.

A Duty to Protect as a Result of the Statutory Criminal Offence of ‘Failure to Protect’ Students from Harm

A ‘failure to protect’ offence was one of the recommendations made by the Royal Commission. Four jurisdictions (the Australian Capital Territory, New South Wales, Victoria and Tasmania) now have a ‘failure to protect’ offence. This offence places a responsibility on individuals to act within their power to remove or reduce substantial risk of harm to children.

In New South Wales, this offence is established under section 43B of the Crimes Act 1900 (NSW). It applies to staff, volunteers and contractors, and insofar as they have the power to act to reduce a risk of abuse or harm to the child, they must take action to do so. As this only applies to adults, only students over the age of 18 will have this legal responsibility. However, the laws in the Australian Capital Territory, Victoria and Tasmania apply to all “persons”, not just those over 18.

Working with Children Checks (or Equivalent)

Screenings systems for individuals who work or volunteer with children vary among the state and territory jurisdictions, determining which individuals are or are not subject to such screening and what kind of information must be provided.

The South Australian government is currently in the process of implementing a new Working with Children Check (WWCC) scheme which will commence on 1 July 2019. Under this new scheme, coaches will fall under the list of “prescribed positions” that require a WWCC. Only children aged 14 and under are exempted, so senior students aged over 14 will be required to obtain a WWCC unless otherwise exempt under the Child Safety (Prohibited Persons) Act 2016 (SA).

By contrast, student volunteers in New South Wales will only be required to obtain a WWCC if they are over the age of 18. The same applies in Western Australia and Victoria where volunteers under the age of 18 are not required to obtain a WWCC.

Reportable Conduct Scheme

Under various reportable conduct schemes in different states and territories, heads of organisations are required to notify third-party organisations of allegations of reportable conduct against employees or volunteers. In Victoria, this must be reported to the Commission for Children and Young People and in New South Wales this must be reported to the Ombudsman. Definitions of reportable conduct vary but can range from sexual offences to significant neglect. Jurisdictions also vary in relation to whether or not the obligations imposed apply to people under 18. Section 3 of Victoria’s Child Wellbeing and Safety Act 2005 states that for the purposes of the reportable conduct scheme an “employee” is a person over the age of 18. The ACT and NSW, on the other hand, make no mention of how old a person must be to come under the scheme.

Statutory Information Sharing About Children’s Welfare or Wellbeing

Certain jurisdictions have enacted legislation to regulate the sharing of information about a child’s history or state of wellbeing so that they can be better catered to and cared for in a range of situations. The obligations on schools and other child-related organisations will differ based on state-specific legislation. While most of these information sharing regimes specify that the information sharing must be done by the principal or a similar person, it may be that direct contact volunteers, including student coaches, should be provided with some information about the applicable regime, to enable them to respond appropriately to any information sharing requests they may receive.

Training in Relation to Child Safeguarding Issues

In order to maintain compliance with a state or territory’s child safe standards, as mentioned above, certain jurisdictions require organisations to provide a level of training for employees and/or volunteers. Again, this will vary from jurisdiction to jurisdiction.

What Should Schools Be Doing?

In the interests of maintaining a school environment that complies with the requirements of each state and territory, schools should familiarise themselves with the legislation of their state or territory in relation to the requirements that apply to student coaches. It will be important both for the school’s compliance with relevant legislation and with child safe standards, and for the student coaches’ compliance with their own legal obligations, that student coaches are provided with relevant information and training on these obligations.

Ultimately, schools will have to tailor their approach based on the legislation of each state and territory. By establishing policies for these student coaches, schools can ensure a safe school environment as well as a fruitful and enjoyable co-curricular season for students.