Child protection and child safe organisations
There are several recommendations and new pieces of legislation arising from the findings from the National Royal Commission into Institutional Responses to Child Sexual Abuse which handed down its findings in 2017.
On 15 December 2017 the Royal Commission presented a final report to the Governor-General, from the five-year inquiry into institutional responses to child sexual abuse and related matters. The report is across 17 volumes and contains 409 recommendations. Both the Australian Government and the NSW Government responded to the recommendations in June 2018.
One key recommendation, accepted in principle by the NSW Government, is 6.12: "With support from governments at the national, state and territory levels, local governments should designate child safety officer positions from existing staff profiles to carry out the following functions:
- developing child safe messages in local government venues, grounds and facilities
- assisting local institutions to access online child safe resources
- providing child safety information and support to local institutions on a needs basis
- supporting local institutions to work collaboratively with key services to ensure child safe approaches are culturally safe, disability aware and appropriate for children from diverse backgrounds."
As part of this recommendation, the NSW Government through the Office of the Children’s Guardian will engage with councils.
The Child Safe Scheme and the Child Safe Standards
Councils, as leaders in the community and providers of spaces and services which children and young people access, have a responsibility to ensure councils are child safe institutions.
A key outcome of reforms has been the adoption in NSW of the 10 Child Safe Standards, and subsequent legislation. The Children's Guardian Amendment (Child Safe Scheme) Bill 2021 passed parliament on the 10 November 2021, and triggers new responsibilities for all council staff, volunteers and councillors to protect and listen to their youngest residents and workers.
Essentially, it stipulates that certain organisations, including all councils, will be required to implement the 10 child safe standards and become ‘child-safe’ organisations. The standards focus on education and training across the organisation, policies and processes, and engagement with children, young people and their families.
The standards are based on recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse.
LGNSW has established an email network for council staff across NSW to share resources and ask questions about the implementation of the child safe standards. Please email [email protected] if you would like to be added.
National Redress Scheme
The National Redress Scheme is part of the Federal Government’s response to the Royal Commission into Institutional Responses to Child Sexual Abuse.
Councils, and mayors specifically, have new obligations under these reforms, which the State Government has committed to.
The NSW Government’s response focuses on three areas: justice for victims; criminal justice and sentencing; and child safe institutions and prevention.
While historical cases of child abuse in councils and council-run institutions are expected to be rare, councils were signed up to the National Redress Scheme by the NSW Government, which will underwrite any financial liability.
On 5 March 2020, LGNSW hosted a special briefing with the NSW Attorney-General, the Hon. Mark Speakman MP, to understand new obligations under the National Redress Scheme for survivors of institutional child sexual abuse.
The video below was taken at the forum.
New legislation introduced during 2018 in response to the Royal Commission has also clarified the legal responsibility of organisations to protect children, report abuse and in some cases increased penalties for not doing so.
Child Protection (Working With Children) Amendment Statutory Review Act 2018 NSW (April 2018)
Implications for councils: New sections to make it an offence for an employer to fail to obtain and verify the details of a worker employed to work with children or to keep a record of the details that were obtained. The bill provides for penalty infringement notices to be served on employers who fail to ensure that staff working with children have obtained clearance. Employers can verify whether a worker has the appropriate clearance through an online process.
Criminal Legislation Amendment (Child Sexual Abuse) Act (June 2018)
Implications for councils: This includes the ‘failing to protect’ offence where a person will commit an offence if they know that another adult in the organisation who works with children poses a serious risk of physically or sexually abusing a child.
This also includes the ‘failing to report’ offence where a person will commit an offence for failing to report child abuse. The new offence, Section 316A, will apply where a person knows, believes or reasonably ought to know that a child abuse offence has been committed against a child.
Civil Liability Amendment (Organisation Child Abuse Liability) Act 2018 (October 2018)
Implications for councils: Councils can be held vicariously liable for the abuse of children perpetrated by people who are employed by council and by people who are “akin to employees” of council. This may include family day care workers, as well as volunteers and contractors.
In addition, councils, as providers of children’s services, which do not take reasonable steps to prevent child abuse of children in their care, may be liable in a negligence action.
Children’s Guardian Act 2019 (November 2019)
Implications for councils: All councils, county councils and Joint Organisations are relevant entities for the purposes of the Act. This means that councils will have obligations to investigate reportable allegations which are allegations that an employee who is engaged to provide services to children or who is required to hold a Working with Children Check (WWCC) has engaged in sexual offences, neglect or assault or ill-treatment of a child, and to make determinations about reportable convictions, which are convictions for an offence.
The Act requires an employee of an approved education and care service to report to the general manager of the council a reportable allegation or reportable conviction that relates to an employee of the service. The Act also requires a relevant entity to have a code of conduct and policies in place to prevent and detect reportable conduct by employees of the entity. LGNSW has provided a summary of the Act.
The NSW Office of the Children’s Guardian has resources available online for creating child safe institutions and also offers training courses, both online and in-house.
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