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What Does the New South Wales Proposed Child Safe Scheme Mean for Schools?

10/02/21
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NSW

11/02/2021

The NSW Office of the Children’s Guardian (OCG) released an Exposure Draft of the Children’s Guardian Amendment (Child Safe Scheme) Bill 2020 (NSW) (the Bill) in mid-December 2020. The Bill proposes amendments to the Children’s Guardian Act 2019 (NSW) (the Act) to create a regulatory framework that will require child-related organisations in NSW to comply with the NSW Child Safe Standards. The Bill implements, in NSW, recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse that all child-related organisations in Australia be required to implement Child Safe Standards and be held accountable for their implementation through independent oversight.

Under NSW’s Reportable Conduct Scheme, which the OCG oversees following amendments to the Act in early 2020, child-related organisations are required to report any reportable conduct of their employees and volunteers to the OCG, and are also required to have adequate systems in place to prevent and respond to such conduct. Some of the shortcomings of this system are that the OCG is only able to respond to incidents of which it has been notified, and that it has limited enforcement tools to require organisations to implement a system to prevent reportable conduct.

Similarly, although the Working with Children Check scheme, which is also overseen by the OCG, is an effective tool for preventing unsuitable people from working in child-related organisations, it does not address overall risks of child abuse in organisations.

The Bill proposes a stronger, preventative Child Safe Scheme that encourages wide-spread, proactive, cultural change through two key propositions:

  • that child-related organisations that are “relevant entities” for the purposes of the Reportable Conduct Scheme, such as schools, implement the 10 Child Safe Standards developed by the Royal Commission (which are now reflected in the National Principles for Child Safe Organisations and have been adopted and are set out in the NSW Child Safe Standards)
  • that the OCG be the sole regulator for the implementation of these Child Safe Standards.

While the Bill is still in its early drafting stages, this article will explore what these changes could mean for schools in New South Wales.

 

What Responsibilities would Schools have under the Bill?

As mentioned above, schools, as a relevant entity for the purposes of the Reportable Conduct Scheme, would have to implement the NSW Child Safe Standards (the Standards) as the framework for their child safe practices. The “head” of a school will be responsible, and held accountable, for ensuring this implementation through specific systems, policies and procedures. The “head” of the school for the purposes of the Child Safe Scheme would be the same as the “head of the relevant entity” under the Reportable Conduct Scheme.

Under section 8BB of the Bill, the head of a school could be asked by the OCG to provide information on the systems, policies and procedures in place at the school to implement the Standards. Section 8BA sets out that minimum baseline expectations, to implement the Standards, are that a school’s systems, policies and procedures must include a:

  • statement of commitment to child safety
  • child safe policy
  • code of conduct for staff, management, volunteers, contractors
  • complaint management policy and procedure
  • human resources policy
  • risk management policy.

 

The Role of the OCG

The Bill proposes that the OCG will be the sole regulator overseeing compliance with the Child Safe Scheme. This is different to the recommendations of the Royal Commission, which suggested that oversight could be delegated to existing regulatory bodies for various sectors (such as NESA). As the sole regulator of the Child Safe Scheme, the Bill would grant the OCG four key roles/powers:

  • Capability Building and Support
  • Monitoring Powers
  • Investigative Powers
  • Enforcement Powers.

Although the OCG would be the sole regulator, schools should note that, under the Bill, the NSW Department of Education (along with other NSW government agencies) would have to develop a Child Safe Action Plan, detailing the strategies that it will take to build awareness in the community about the importance of child safety in organisations in its sector, build the capability of organisations in its sector to implement the Standards, and to itself implement the Standards.

The requirement for the NSW Department of Education to have a Child Safe Action Plan is designed to enable it to champion the Standards and become a change agent for the education sector, using its influence to embed the Standards across the sector.

 

Capability Building and Support

The OCG will initially devote a significant amount of time and energy to helping organisations build their capability to be child safe environments and to providing ongoing support. Given that the new Child Safe Scheme is aimed at creating long-term cultural change within child-related organisations, the OCG has proposed that, for the two first years of the Scheme, it will not exercise enforcement powers against organisations that fail to comply, but instead will focus on building their capability to comply.

The OCG has already developed a Guide to Child Safe Standards to help organisations implement the Standards, which can be found here. The OCG will be developing and releasing further resources in the future to help organisations meet their obligations.

 

Monitoring Powers

Under the Bill, all child-related organisations that are “relevant entities” for the purposes of the Reportable Conduct Scheme, such as schools, would be subject to the OCG’s monitoring powers under section 8FA. This would allow the OCG to review and inspect a school’s processes, policies and (with the consent of the organisation’s head) premises.

The head of a school could be requested to complete a self-assessment of their school’s compliance with the Standards and/or could be requested to provide specific information. As part of its monitoring function, the OCG may also review information that it already holds about schools and their employees, such as Working with Children Checks and reportable conduct notifications.

If, as a result of these monitoring activities, the OCG finds areas for improvement, it could issue an Assessment Report to a school. Under section 8FB, the school would need to respond to any recommendations in the report within 28 days.

 
Investigatory Powers

Under Division 7 of the Bill, the OCG would have powers to formally investigate a school’s implementation of the Standards in certain circumstances. These circumstances are outlined in section 8G and include:

  • the OCG receives a complaint about the school
  • the school has failed to respond to a recommendation made in an Assessment Report
  • the OCG is concerned that a school is not implementing the Standards.

The OCG’s investigative powers are set out in Schedules 2 and 3 of the Act, which already apply to any investigations undertaken under the Act.

At the end of an investigation, the OCG would have to issue an Investigation Report with findings and recommendations for the school.

 

Enforcement Powers

If the OCG finds serious failings by a school to implement the Standards, the school may be subject to two kinds of enforcement actions: compliance notices under Division 1 of the Bill, or enforceable undertakings under Division 2. If issued with either, a school would be required to include this in their annual report under sections 152E and 152I(2) of the Bill. Failing to comply with either could cause the school to be subject to penalties under sections 152F and s152J.

 

What Should Schools Do?

While the proposed Bill is still in its early stages, schools should be aware that the NSW education sector is entering a new stage in its regulatory requirements, and that developing a child safe culture is essential for compliance with these coming obligations. Schools should ensure that they are meeting all current child safe requirements, consider the Standards and any changes that can be implemented now in anticipation of the coming requirements to comply with them, and monitor for any future changes in obligations.

 

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