Strict Liability

Friday, 27 August 2004

CIVIL LIABILITY ACT 2002 - UPDATE
Issues for Schools

· Legal Liability – Civil Liability Act; A changing judicial environment;

· Overview of Child Protection Legislation in New South Wales

HOWARD HARRISON

PARTNER

Carroll & O'Dea

Solicitors

111 Elizabeth Street

SYDNEY NSW 2000

DX 183 SYDNEY

Tel: 9232 2133

Fax: 9221 1117

E-mail: hharrison@codea.com.au

This paper is for general information only. All liability is expressly disclaimed for any loss or damage that may arise from any person acting or any statement or information contained in this paper.

INDEX

1. INTRODUCTION

2. CIVIL LIABILITY ACT

2.1 Liability considerations

2.2 Apologies

2.3 Limitations issues

2.4 Sexual abuse exception

2.5 Recent case law

2.6 Recreational Activities – School Sport

2.7 Conclusion/Observation

3. CHILD PROTECTION LEGISLATION – NSW

3.1 Introduction

3.2 Children and Young Persons (Care and Protection) Act 1998

3.3 Ombudsman Act 1974

3.4 Commission for Children and Young People Act 1998

3.5 Child Protection (Prohibited Employment) Act 1998

3.6 Child Protection (Offenders Registration) Act 2000

3.7 Child Protection Legislation Amendment Act 2003

3.8 The Working with Children Check Guidelines

3.9 (i) Ombudsman – “Child Protection – Responding to Allegations of Child Abuse Against Employees”

(ii) NSW Inter-Agency Guidelines for Child Protection Intervention 2000

4. CONCLUSION

5. ACKNOWLEDGEMENT

1. INTRODUCTION

The legal issues that arise in connection with the operation of schools and educational institutes and the protection of children have never been more complex.

This paper seeks to overview:

(i) some liability considerations particularly in the light of the New South Wales Civil Liability Act and the current shift in judicial sentiment;

(ii) the complex statutory arrangements in New South Wales in the area of reporting, employment screening and child protection generally post the Wood Royal Commission;

2. CIVIL LIABILITY ACT

The limiting provisions of the Civil Liability Act are the subject of treatment by other speakers. They apply directly to the school setting. The far reaching changes incorporated in the Civil Liability Act include restrictions on the recoverability of damages for non-economic loss, restrictions on the recoverability of legal fees, abolition of jury trials, limitations on the availability of exemplary, punitive and aggravated damages and changes in relation to the rules in respect of contributory negligence.

In conjunction with a more conservative judicial approach, the Act has achieved a real reduction in civil exposure for those involved in the educational sector.

2.1 Liability considerations

Part 1A deals with negligence.

Division 2 sets out the provisions in relation to duty of care.

Section 5B states the general principles and Section 5B(2) lists factors to be taken into account when determining whether a reasonable person would have taken precautions against a risk of harm.

These factors are:-

(a) The probability that the harm would occur if care were not taken,

(b) The likely seriousness of the harm.

(d) The social utility of the activity that creates the risk of harm.

It would seem that (d) may be of significance in analysing action or inaction in relation to an accident on a school camp or in the course of sporting activity in the school context.

Section 5C - Other Principles

(a) Requires the Court to have regard to the overall burden and therefore cost on the Defendant of taking precautions not merely in the instant case before the Court, but where similar risks could happen to other people.

(b)&(c) These provisions probably do not change the current law. The fact that the risk could have been avoided by doing something differently does not at present of itself give rise to liability, and the fact that subsequent action if taken earlier would have avoided the risk of harm, again does not of itself under current law amount to evidence of negligence, but they are evidence of steps that might have been taken to eliminate a risk and therefore whilst of themselves are not sufficient to give rise to liability, are relevant and will remain relevant. Eg, fixing the pothole after the accident, repairing the railing after the fall, etc.

Moreover, Sections 42 and 44 in Part 5 of the Act may be of significance in assessing the liability of a school.

It would seem that State schools and independent schools are public authorities for the purposes of Part 5.

Section 42 states that the principles to be applied in determining whether such an entity has a duty of care or has breached that duty include the functions to be exercised by the authority, the general allocation of resources, etc.

Section 44 stipulates that a public authority is not liable in proceedings to the extent that the claim is based on the failure of the Authority to exercise or to consider exercising any function of the Authority to prohibit or regulate an activity….

It may be that this section would preclude recovery against schools in cases based on complaints of inadequate supervision and the like.

2.2 Apologies

Part 10 of the Civil Liability Act confirms that an apology can be given without it being relied upon in formal legal proceedings as an admission of liability or fault. This will assist in mediations or other situations where there has been reluctance to provide an apology which would have helped the process due to legal concern.

An apology is not protected where there has been an intentional act that is undertaken with intent to cause injury or death or which amounts to a sexual assault or other sexual misconduct.

The New South Wales Ombudsman has advocated for the use of apologies in the light of the introduction of Part 10. A sample fact sheet prepared by the Ombudsman is attached to this Paper.

2.3 Limitations Issues

The Limitation Act was substantially amended for accidents occurring after 6 December 2002 by the Civil Liability Act.

Previously for common law personal injury claims if the injury occurred before 1 September 1990 an infant had until the age of 18 years plus a further six years from that date within which to sue.

In respect of injuries on or after 1 September 1990 an infant had three years from the time he or she reached their 18th birthday - 52(1)(d) of the Limitation Act 1969 as amended.

Generally the limitation period is now three years from the date when the cause of action is discoverable (Section 50C(1)(a) Limitation Act 1969) or 12 years from the date when the Act or omission causing injury or death occurred (see Section 50C(1)(b) Limitation Act 1969).

For students-infants, the running of the limitation period is not suspended until the minor reaches 18 years, if the minor has a capable parent or guardian – Section 50F(2)(a) and 50A(2).

If the minor is injured by a parent or guardian or close associate of the parent or guardian there are special and longer limitation periods as set out in Section 50E(1)(a) and (b) Limitation Act 1969.

Thus in the overwhelming majority of cases for accidents after 6 December 2002 children are no longer given the benefit of the suspension of the limitation period under the Limitation Act because of the amendments.

2.4 Sexual Abuse Exception

The exempting provision is section 3B(a) which says "The Act does not apply in respect of – civil liability in respect of an intentional act that is done with intent to cause injury or death or that is sexual assault or other sexual misconduct …".

It would seem that the words "intentional act" govern the words "sexual assault" and the words "sexual misconduct". Therefore, the Act will generally apply to a sexual misconduct damages claim against the school or Department.

An action against a perpetrator would be excluded and arguably if a vicarious liability count got up, the Act may be excluded. However, typically the claim is against the school operator in respect of their failure to properly supervise, train, check backgrounds, administer, etc and such a claim would not relate to behaviour constituting an intentional act or sexual misconduct or sexual assault.

Therefore, the Civil Liability Act would generally apply to such civil claims and to that extent would limit damages availability.

2.5 Recent Case Law

Strath v New South Wales 1999 NSW SC391

A fall from playground equipment accessed by children outside school hours was held not to render the school liable in circumstances where a fence had to be climbed and instructions had been sent to parents and children not to use the equipment outside school hours.

Haines v Warren 1987 NSW JB4 Court of Appeal

Pupil injured by another when picked up and dropped in the playground. School held liable because of previous failure to discipline the second pupil for antisocial behaviour and for negligent failure to supervise.

H v Pennell 1987 46SASR 158

Teacher confiscated car radio aerial but returned it to the pupil owner at the end of class. The pupil gave it to another student who whipped it around during recess, causing the top to fly off and penetrate the Plaintiff’s skull, inflicting serious brain injury. The area not supervised at the time. First Defendant breached a duty of care to the Plaintiff but the school was not negligent. Appeal – full Court rejected both the appeal and the cross appeal upholding liability on the part of the First Defendant pupil who flicked the aerial, but rejecting liability on the part of the school. The majority said there was not causative link between the absence of teachers and the actual injury in circumstances where the event happened so suddenly that reasonable supervision would have made no difference. The aerial was not inherently dangerous and returning it to its owner was not an act of negligence. Leave to appeal to the High Court was refused.

New South Wales v Griffin 2004 NSW CA17

A 13 year old pupil prearranged a fight with another pupil and notice of it was written on a whiteboard. The fight occurred in circumstances where there was a want of adequate playground supervision. Primary liability was admitted in the course of hearing at first instance. On appeal contributory negligence was rejected on the basis that this was no more than the ordinary propensity of a 13 year old for mischief and notwithstanding that the fight was pre-planned, the serious and therefore unexpected injury suffered did not give rise to contributory negligence on the part of the pupil, notwithstanding that he knew what he was doing was in breach of school rules.

Nobrega v Trustees of the Roman Catholic Church Archdiocese of Sydney No. 1

1999 NSW CA75

Student injured on a water slide during a school excursion. Judge formed the view that the slide was not inherently dangerous and it was not necessary for a teacher to supervise the activity at the head of the queue. Appeal dismissed.

Duncan v Trustees of the Roman Catholic Church for the Diocese of Canberra in Goulburn Unreported ACT Supreme Court 14 October 1998

School authority held liable not merely for the negligence of a gymnastic instructor and programme, but also for the failure of the student assisting the teacher when that student failed to properly support another student who fell and injured herself during a handstand.

Regan v ACT Schools Authority 2003 ACT SC47

Plaintiff suffered a back injury whilst abseiling during an outdoor education class. The Court satisfies the equipment was in good working order and safety precautions followed and found no negligence on the part of the Defendant school authority.

Gray v New South Wales NSW SC Grove J 1998

Pupils left during lunch hour in the class room on wet day. Left without appropriate supervision. Dispute over the result in a handball game when a pupil with a known propensity for violence pushed the Plaintiff from behind, causing him serious physical injury. No classroom monitor or prefect appointed in the absence of a teacher. Education authority was held liable for the consequences.

El-Sheik v ACT Schools Authority 1999 151 FLR ACT SC

Plaintiff kicked by a fellow school pupil and suffered injury. Court not satisfied the level of supervision was inadequate or with greater supervision would on the particular facts have prevented this injury.

Stephens v Victoria

Unreported Victorian County Court 1998 – Education authority held liable for a teacher’s failure to stop a student teasing a slow learner, which ultimately led to aggression and injury.

Dunn v Victoria Unreported Victorian County Court 1997 – School held liable for having one teacher on duty in the playground instead of the usual two. In circumstances where there had been previous incidents of a similar nature, a child chased another and threw a stone, causing an eye injury.

Psaila v Victoria Unreported Victorian County Court 1998

Child striking a metal post with a stick in the playground before school. Stick broke and part of it struck another child in the eye. Only one teacher supervising the area which was covered by three teachers at recess. Inadequate supervision held to be the cause of the injury.

Commonwealth and ACT Schools Authority v Stokes 1996 ACT SC

Held school authority not liable where during lunch hour table tennis game in primary school, students without permission to play tried to take over the equipment – bats thrown through the air striking another child causing injury to the child’s teeth. Lack of supervision alleged, but held not to be the cause of the injury.

Trustees of the Roman Catholic Church Archdiocese of Sydney v Kondrajian

2001 NSWCA

11 year old pupil died after being hit in the throat by a raised hockey stick of an 8 year old pupil. The supervising teacher had allowed the 8 year old to play the game with insufficient safety instructions and inadequate skills. However it was held that the accident constituted the materialisation of an extremely remote risk which did not involve any breach of duty on the teacher’s part. The mere fact that serious injury or death may occur while children are playing a game at school will not automatically result in finding that a breach of duty has occurred.

ACT Schools Authority v Raczkowski 2001 ACT SC

Year 7 class using metalwork equipment first time. Plaintiff skylarking tried to make another student incorrectly cut a piece of metal which he had inserted into the guillotine. The consequence was that the guillotine struck his hand and amputated part of the right finger. The teacher had not seen the incident and conceded the machine was completely unguarded at the back. The machine not backed up against the wall. Magistrate found positioning of the machine leaving it unguarded was breach of duty of care and inadequate supervision. On appeal Crispin J held it was open for the Magistrate so to find and said the finding was inevitable. No contributory negligence on the part of the boy despite his skylarking.

Van Donsellar v Central Coast Grammar School 2003 NSWCA

Student suffered injury when fell down a flight of stairs. Due to a prior injury his foot and lower leg were in a cast and he used crutches. The school premises were on sloping land and the Plaintiff had to use a number of flights of stairs to move around. School offered assistance to the Plaintiff in moving around and carrying books and informed he could do his school work from the library and made follow up enquiries. The Plaintiff declined any assistance. Court of Appeal held that the risk of the Plaintiff falling was insufficient to require the school to take steps beyond those already taken in offering assistance. Despite his age (almost 17) at the date of injury he was capable of making appropriate decision as to whether or not he could move around in the school on his crutches without assistance.

Graham v NSW 2001 34MVR

12 year old Plaintiff suffered from impaired eyesight and poor balance. Normally her mother met her to assist her across a busy Street on the way home. Either her mother was late or the Plaintiff early and she was struck by a car. She sued the school authority alleging the school should have provided transport for her. The trial Judge held the school authority not negligent and the appeal was rejected. There was a duty to take reasonable steps to protect the child whilst at school and may have been a duty to inform the parents that neither taxi nor bus was running. This the school did. The duty ended there.

Gugiatti v Servite College Inc 2004 WASCA

A 16 year old student injured during a school excursion when trying to jump across a creek. The students were left to cross a creek by their own devices. The trial judge found no negligence and an appeal was dismissed. While 16 year olds still required a degree of supervision, they are not to be treated as infants and the injury which occurred was not reasonably foreseeable. It was not reasonable to expect a teacher to stop 16 year old boys from jumping across a narrow section of the creek.

Miller v Sotiropoulos Unreported NSWCA 1997

No liability found for injury inflicted by one student on another where a teacher promptly intervened and was seeking to separate the protagonists when the injury was inflicted.

Hadba v Trustees of the Roman Catholic Church for the Diocese of Canberra in Goulburn 2003 ACTSC

Child injured when other children pulled her off the flying fox in the playground. Accident occurred when teacher on duty facing away from the play equipment. No evidence of any particular discipline problem or forewarning of such conduct and the school had a policy prohibiting such conduct. In the particular circumstances there was no breach of duty of care and the action failed.

Trustees of the Christian Brothers v Cardone 1995 57FLR

Federal Court upheld ACT Supreme Court decision that the school was liable where a student tripped and put his forearm through a standard plate glass window of the cafeteria. It was negligent for a Defendant not to ensure that the relevant glass panels were replaced with safety glass as soon as practicable after it became or should have become aware of the amendments in 1972 to the Australian Standard of ACT building codes.

Vandescheur v New South Wales 1999 NSWCA

Plaintiff suffered injury in a schoolyard cricket game played with a jagged handled broken slat for a bat. Trial Judge found no negligence on the part of the teachers who permitted the activity. Court of Appeal reversed the decision and held teachers who approved and permitted the activity had breached their duty of care to the 13 year old Plaintiff.

AB v Victoria Unreported Victorian Supreme Court 2000

Plaintiff recovered damages in respect of injury suffered as a result of alleged negligence of the Victorian Education Department. The stepfather of the Plaintiff was convicted of six counts of sexual assault and committed acts of sexual abuse when the Plaintiff when in Grade 3 in 1991. In 1992 one of the Plaintiff’s teachers was alerted to the fact that some abuse may be occurring after discovering an explicit drawing done by the Plaintiff. The Plaintiff also appeared to be suffering mood swings. The teacher discussed the possibility of abuse with the Plaintiff’s mother, but took no action to report the matter to Community Services Victoria, who could have investigated further. Matter mentioned in passing to School Principal. Teacher did nothing further. Further abuse occurred in 1993 and 1995 and the Plaintiff alleged that the abuse could have been prevented had the Education Department not breached its duty. The Court ruled that there was generally speaking a causal connection between the negligence and damage if it appears on the balance of probabilities that the infant Plaintiff would not have sustained further injury had the Defendant not been negligent. There were procedures put in place by the Education Department for dealing with suspected child abuse and none of the procedures were followed.

NSW v Lepore; Samin v Queensland; Rich v Queensland 2003 77 ALJR

Majority of the High Court held that non-delegable duty of care owed by an employer does not extend to make the employer liable for the deliberate criminal conduct of the employee. However the Court held that the mere fact of criminality on the part of an employee did not necessarily exclude vicarious liability, although the extent and nature of criminality was relevant to the issue.

Trustees of the Roman Catholic Church of the Diocese of Sydney v. Hogan

53 NSWLR 343

The Plaintiff was a student aged 13 in Year 9 at St John’s College, Lakemba. On 15 March 1994, he was at Lakemba station waiting to take a train to a sporting fixture organised by the school. He was told to see the teacher tomorrow. He was given the strap for wearing a grubby sports uniform. The jury found there was no proper cause for this strapping. The second strapping occurred later that same afternoon when three boys other than the Plaintiff began to chant at the teacher and the Plaintiff made a racially offensive remark about the teacher. The jury found there was proper cause for the subsequent strapping but it was not delivered in a moderate and reasonable manner. The jury found for the Plaintiff and awarded the Plaintiff, inter alia, $700,000.00 general damages. There was no appeal on the question of liability. The matter was however, sent back to the lower court for re-assessment of general damages and the range suggested by Counsel for each side was between $100,000 and $250,000.

State of New South Wales v. Paige [2002] NSW Court of Appeal

The Defendant was the principal of the Sydney High School between 1992 and 1998. In 1992, he received complaints from students regarding sexual misconduct of a teacher at the school occurring before his own appointment. He notified the Department of some complaints but dealt with them my way of direct approach to the teacher and arranged to have him transferred from the school. In 1997, the Director General of Department issues a statement requesting re-notification of sexual misconduct cases not adequately investigated. The Respondent renotified the complaints and notified some others for the first time. The Respondent was charged with breaches of his duty for non-compliance with Departmental Procedures in the way he handled the complaints. The Respondent was found guilty of the charges and a notice of retirement was accepted although that was promptly withdrawn by the Respondent. The Respondent suffered psychiatric harm and lost income. The trial Judge found the Department had breached its duty of care to the Respondent and had not effectively terminated his contract of employment and he was awarded in damages in both tort and contract. The Court of Appeal held that the Department did not owe a duty of care to conduct its disciplinary proceedings so as to avoid psychiatric harm to the Respondent. Further, even if a duty of care existed, the trial Judge erred in finding the conduct of the Appellant was a breach of the duty; and there was insufficient evidence for the finding that the alleged breaches of the duty of care (as opposed to the fact of the charge and dismissal) was the cause of the Respondent’s injuries. The Court however dismissed the appeal on the contract claim. As a result, the award of damages for negligence was quashed, damages for breach of contract were assessed and substituted. Judgment in the sum of $307,439.00 was set aside and the judgment under the contract in the sum of $213,004.00 was substituted.

Gatetani v. The Trustees of the Christian Brothers (1988) Tasmanian Supreme Court

A 14 year old plaintiff returned to the class room with other boys during a sports afternoon. They were supervised by a teacher. The plaintiff left the class room running and tripped over a school bag lying in the corridor went through a window, breaking it and severely lacerating his elbow. There were lockers in the corridor that were not large enough to contain the pupils’ school bags and the pupils had been constantly told to leave their bags on top of the lockers or out of the way and also constantly been told not to run inside the buildings and these rules were enforced by immediately disciplinary action. The plaintiff’s action was unsuccessful. The Tasmanian Supreme Court agreed the risk of injury from a bag lying across the corridor was foreseeable but the plaintiff failed to prove that any steps which could have been taken such as the provision of greater storage for school bags, greater supervision or greater warning of the dangers of running would have prevented or reduced the risk.

Horne v. State of Queensland & Ors (1995)

13 year old high school girl fell off bike riding to school tennis some distance from the school. The school advised children that they could make their own way to the courts and both walking and cycling were acceptable. The girl borrowed a friend’s bike with defective brakes and which was too big for her. The Queensland Supreme Court held that the school authority breached its obligation to exercise reasonable care for the safety of the girl and its obligation to exercise proper supervision over her as she travelled between the school and those activities. Damages were initially apportioned 25% to the State and 75% plaintiff who was found to have been guilty of contributory negligence in riding the bike with defective brakes. The appeal against the finding of contributory negligence was allowed and there was no evidence the brakes were so defective as to require her to dismount before the accident.

Trustees of the Roman Catholic Church for the Dioceses of Bathurst v. Koffman

(1996) AJR81

This 12 year old student was pelted with sticks and rocks thrown by high school students whilst he was waiting to catch a bus home from school. He was struck in the left eye. The bus stop was situated outside the high school and 300 to 400 metres from the primary school. The Court of Appeal held the school was in breach of its duty to the boy when he was injured. When school authorities are aware of particular dangers including older children habitually bullying younger children, the duty extents to require the school to take preventative steps or to warn parents. Appropriate supervision would have either prevented the throwing or would have resulted in the boy being told to remove himself from the area. Liability did not necessarily cease with the bell and the end of the school but rather the duty to supervise depended upon the circumstances. Leave to appeal to the High Court was refused.

St Mary Star of the Sea College Limited v Watt 2001 NSW Court of Appeal 280

The Respondent to the appeal, Ms Watt was awarded just under $200,000 in an action for negligence against her school. Ms Watt was a pupil at St Mary Star of the Sea College Wollongong and sustained injury during a gymnastic class when aged 14. A number of students were doing exercise on the bar, others on the floor and others on the vault and all students were under the supervision of a trainee teacher. Ms Watt was one of those engaged in the vaulting activity and the equipment included a springboard, a vaulting horse and a landing mat. Ms Watt was injured during a vaulting activity. It was the teacher’s responsibility to supervise the students using the vaulting horse and to act as a “spotter”. The spotter’s task was to stand by the landing mat when the student performed a jump and if need be render assistance if the jump went amiss. Ms Watt said that at the time she sustained her injuries the teacher was not standing in the correct position by the mat but a few metres away talking to another pupil and her jump went amiss and she lost control and didn’t land on her feet on the mat rather on her upper back. Ms Watt conceded that before commencing the jump she was aware that the teacher was standing off to the right and he was talking to another student near the beam. The teacher’s evidence was that he was standing in the correct position and that Ms Watt having straddled the horse, landed on the mat on her feet but with her weight forward and she went into a forward roll. He did not restrain the student because he thought it was a safe way to land including the forward roll.

The trial judge found that vaulting carried with it a foreseeable risk of hazards and could only be minimised by having an alert spotter and he found that the teacher was not providing the necessary support to reduce the risk of injury, probably because his hands were full with other responsibilities and was mistakenly relying on the known skill of the Plaintiff. Had he been in the correct position on the probabilities the injury would not have occurred. The trial went for 18 days.

On appeal the Court found that the Judge was entitled to prefer the evidence of the student. The Court found in respect of causation that the Judge was entitled to find that appropriate intervention by the teacher would have avoided the injury. The Court also was asked to look at the issue of contributory negligence because an experienced gymnast such as the Plaintiff ought to have appreciated that prudence was required and she should not vault until the teacher was in the correct position. The trial judge found having regard to the students age and the circumstances in which she undertook the vault that she was merely taking her turn and was doing what she believed was expected of her and she could not have waited and told the teacher to move to her safe position. The Court found the trial judge was entitled to so conclude and the appeal was therefore dismissed.

2.6 Recreational Activities – School Sport – Protection from Liability

The definition of “recreational activity” includes – Section 5K(a) Any sport (whether or not the sport is an organised activity);

School children typically play sport and strictly applied, one would think that that definition should apply thus enabling a school authority to take advantage of the risk warning and possibly waiver provisions of sections 5M and 5N.

Section 5M provides that a person does not owe a duty of care to another person who engages in a recreational activity to take care in respect of a risk of the activity if the risk was the subject of a risk warning.

However, section 5M(2) states that if the person is an incapable person (including a child), then the Defendant may only rely on the risk warning if the incapable person was under the control of another person who is not the Defendant and the risk was the subject of a risk warning to that other person – this provision will not assist a school because typically at a school, a child would not be under the control of a person who was not deemed to be the Defendant or agent of the Defendant, namely a teacher or coach.

However, section 5M(2)(b) also states that where there is an incapable person, the Defendant may rely on the risk warning if the risk was the subject of a risk warning to a parent of the child whether or not the child was under the control of or accompanied by the parent. Therefore, it is arguable that if the school provided the necessary warning to the parents in respect of the particular recreational activity, then the school could rely on that warning whether or not the parent passed on the warning of the risk to the child. Thus one could have the situation where a parent was warned by the school that football was a dangerous activity but the parent being keen for the child to play, did not bother telling the child and the child suffers an injury because of the way in which the sport was conducted at the school.

The risk warning does not have to be specific to the particular risk and can be a general warning that includes the particular risk.

Pursuant to section 5M(3), a risk warning can be relied upon if the warning is given in a manner which is reasonably likely to result in people being warned before engaging in the recreational activity and the Defendant does not have to establish that the person received or understood the warning or was capable of receiving or understanding the warning. Thus presumably for example, a child of 5 or 6 whose parents are warned and is not capable of him or herself of understanding the warning or perhaps wasn’t even given the warning, may be caught by the provisions.

The difficulty with that approach is in respect of school sport as opposed to Club sport or other voluntary sport and whether the definition of recreational activity applying to any sport includes participation in sport such as typically occurs in many schools. It would be arguable that participation in such sporting activities is not a recreational activity notwithstanding the strict terms of the definition but rather is part of the curriculum of the school, part of the child’s participation as a student and one cannot differentiate between the various activities required of a child at school and break it down to, for instance, sport, music, excursions etc. Any activities governed by the school should form part of the curriculum and cannot be segregated out for the purposes of the Act. A child at school may be involved in academic pursuits, sporting activities, general playground activities, excursions, camps away from school and the like. Many of those activities, looked at separately, could come within the definition of a recreational activity. The Courts would be likely to interpret the provisions narrowly and would not be in favour of a generous approach to the school.

Is a pupil involved in school sport involved in a recreational activity, anymore than it could be suggested that a pupil taken on a geography excursion to a beach or a school camp to say the Blue Mountains? Such an interpretation flies in the face of the strict letter of the legislation.

It is also worth noting 5M(9) which states that the Defendant is not entitled to rely on a risk warning if the Plaintiff was required to engage in the recreational activity by the Defendant. That would seem to be an important sub-section which would suggest that any compulsory school activity, whether it be sport or other outside recreation is not caught by section 5. Arguably some events may be “required” of a pupil even without compulsion. eg – if the school tells the pupil that if you want to be considered for this position you must go on Duke of Edinburgh or play a sport.

Of course, that still leaves the situation where participation in such events is voluntary. In some schools, all sport is voluntary, in other schools, sport after a certain age is voluntary. Where sport is compulsory but there is a choice between sports, the chosen sport is one that the student was required to engage in for the purposes of sub-section 9. However, where the activity is completely voluntary, then clearly sub-section 9 would not apply and to avoid the Act one would only be left with the earlier argument that such sporting activities are part of the overall curriculum.

It could be argued that the mere fact the sub-section 9 has been added indicates that the draftsman may well have taken the view that “recreational activity” did extend to students involved in sport and like activities and thus the need for the sub-section to elimination compulsory activities which are typically only found at school. Notwithstanding the above, in order not to torture the English language too much, the better view and the view likely to be accepted by the Court may be:-

(a) The recreational activity provisions will apply to voluntary school activities.

(b) The recreational activity provisions will not apply to any compulsory school activity.

(c) In respect of a voluntary activity, the provisions will only apply if a child is involved and a risk warning is given to someone other than the pupil, namely the parent, or someone actually accompanying or in control of the person other than the Defendant.

In practice therefore, where schools offer voluntary activities including sport, it would be appropriate that if there are risks inherent in the activity (e.g. Duke of Edinburgh expeditions, football, surf lifesaving etc) that the parents were warned as to the risks inherent prior to the child committing to participate.

Section 5N deals with the use of waivers in respect of recreational activities. Typically a contract is entered into between the providers of the recreational activity and the participant. The provider can restrict or exclude or modify any liability that may arise from the rendering of services without reasonable care and skill and in particular the participant participates at his or her own risk.

The section is silent on whether or not it would apply to an incapable (minor) person. We must therefore assume that such a contract would be of no effect viz-a-viz a minor without an express provisions such as is contained in section 5M(2) deeming the provision to apply in certain circumstances to minors. Therefore, a waiver provision in a recreational services contract could only be entered into with effect between a parent and the school. In those circumstances, it is unlikely that the contract signed by the parent would be deemed to be binding on the child. Therefore, if for instance the school required the parents to sign a waiver in respect of their child participating in football or some form of excursion, it is unlikely that the waiver could be relied upon at least under section 5N.

It therefore seems that in practice the school would obtain maximum protection by giving a risk warning as opposed to requiring a waiver. The reality is however that many sporting clubs, where children participate, already require parents to sign waivers but query the value of the document.

Finally, Division 6 of the Act sets out the standard of care for professionals. It would seem that a Court would be likely to deem any teacher a professional. Section 5O re-introduces the Bolan test namely that the professional act in the manner widely accepted by peer professionals. The fact that the teacher is also asked to do extra curricular activities such as coach a sport of which the teacher has little knowledge does not change the proposition that the teacher is a professional. In any event, it there were likely to be liability in those circumstances, the liability would be that of the school for having inadequate coaches and not a personal liability of the employed teacher. It would also be unlikely that the Court would be persuaded that just because a number of other teachers were asked to coach a sport of which they have no experience, that it could be considered as competent professional practice. The Court would be likely to adopt section 5O(2) in such circumstances whereby peer professional opinion cannot be relied upon if the Court considers that the opinion is irrational.

Competent professional practice should include becoming quickly acquainted with the particular activity and acting in a sensible and responsible manner.

In any event, in practice it is the school authority and not the teacher which would be held responsible. The school authorities would probably not be able to rely upon a defence that might be available to the professional personally under section 5O. In other words, even if for instance a teacher was able to say that it is common practice for other teachers to be made to teach football who have no idea about the sport and therefore his or her behaviour is competent professional practice, that defence would be unlikely to assist the school where the allegation would be that the school should have used its resources better and should have employed qualified coaches etc.

2.7 Conclusion

The duty of care owed by school authorities to their pupils reached its high water mark with the Court of Appeal decision in Lepore which essentially found that strict liability applied. In other words, if the pupil was injured then the school was liable without the necessity of proving breach of duty of care.

That high water mark was reversed by the High Court in the same matter of Lepore and it is now clear that the law of torts will be applied in a similar manner, in school cases as in other areas of tort.

There does appear to have been a marked tightening up of the law of negligence in the Courts primarily through a much more conservative approach from the Bench in the Court of Appeal and in the High Court, but also as a result of the introduction of the Civil Liability Act.

It would be reasonable to assume that this new and much narrower approach to a finding of negligence as applied in public liability, motor vehicle and professional negligence claims, will also apply in school cases.

Fundamentally, it is probable the Courts will say that students must take reasonable care for their own safety. It would be expected that students act sensibly and that it is not foreseeable that students will injure themselves because of obvious risk (Ghantous & Campbelltown City Council). Having said that, it does seem that Courts are likely to be influenced by the current public attitude towards sexual abuse, excess punishment and bullying in particular. In those areas, notwithstanding the general conservative approach of the Courts, the Courts are likely to apply a high duty of care on school authorities given the publicity attributed in recent years to this type of anti-social behaviour and thus when determining whether or not the school authority has breached its duty of care, Courts will look at:

(b) Steps schools have put in place to deal with the acknowledged risk in these areas;

(d) The way in which these steps are reinforced, administered, cross-checked and measured for their effectiveness.

In other words, schools will no longer be entitled to say that they were ignorant of the problem and even though they may be ignorant of a particular incident or perpetrator of bullying or abuse, unless the school has in place comprehensive guidelines and procedures in respect of bullying and abuse, which one might reasonably expect will eliminate or minimise the risk of particular abuse, the school will almost certainly have failed in its duty of care to a student who is criminally abused or bullied.

On the other hand, the standard trip and fall in the playground type incident and/or sporting injuries are likely, in line with the current trend of the Court, to be more conservatively approached, provided schools follow normal standard procedures, supervision, education and the like.

Available resources and standard approaches of similar schools will be relevant evidence under the Civil Liability Act and is therefore important that schools have continual dialogue within their relevant association of schools as to measures that are put in place to deal with all of the typical incidents that may occur within the school, eg playground supervision, bullying, abuse, school excursions, etc.

Consideration may also need to be given to the introduction of waivers under the Civil Liability Act and the attaining of express parental and student consent to undertake activities that might present greater risk, eg excursions, camping, certain contact sports.

There may well be an argument that many of these activities are "recreational activities" as defined by the Civil Liability Act although my view is that it would not apply where the sport or excursion is part of the child's school curriculum. There is little doubt that being a school pupil is not of itself a recreational activity and representing the school in sport or attending camp or excursion as part of the school curriculum should not, in my view, be isolated from the general nature of the pupil's involvement in the school and one should distinguish such activities from, for instance, out of school club sport and the like. The position is, however, open to argument.

3. CHILD PROTECTION LEGISLATION – NSW

3.1 Introduction

The problems and complexity of the issues arising in connection with child sexual abuse became an important focus in the Wood Royal Commission in New South Wales which released its final report in August 1997.

It goes without saying that the damage caused to children who are abused is often extremely serious. Studies have indicated levels of abuse of children within schools, families and the community of a far greater order than had been appreciated. The problem is recognised as a major community wide issue.

The Commission found a series of legislative gaps and administrative failures in respect of cases considered.

The existing legal framework (the 1987 Care and Protection Act, the Crimes Act, limited common law remedies) and the protocols and procedures then in place within government and non government child care agencies were found to be deficient.

Accordingly, the Commission issued a number of recommendations which were embraced by government and the legislative response included:

(a) the establishment of the Commission for Children and Young People and comprehensive screening facilities for those seeking employment in child related employment;

(b) the widening of the jurisdiction of the Ombudsman to confer an important role in supervising government authorities and agencies in relation to the child protection area;

(c) introduction of additional reporting requirements involving the Ombudsman and the Commission for Children and Young People;

(d) establishment of significant legislative restrictions on future employability for known offenders or high risk individuals.

The resultant array of legislative enactments and departmental guidelines constitute a far more comprehensive regime and one that has taken educational and other authorities some time to come to grips with.

3.2 Children and Young Persons (Care and Protection) Act 1998 ("Care and Protection Act")

· Supersedes the 1987 Care and Protection Act

· Different emphasis – “Risk of Harm” rather than sexual/physical abuse

· Operates in relation to “current” complaints or concerns, that is, an issue in relation to a young person who is presently a child or a young person who is at risk of harm (rather than adult complaints re historical issues)

· Obligation on mandatory reporters to report children at risk of harm to the Director-General of the Department of Community Services

· Mandatory reporting applies to children under the age of 16; non-mandatory reporting encouraged if a “young person” is at risk, that is, a person under 18 but over 16. In the educational area, it is departmental policy that reports go in on cases involving young people and disciplinary consequences follow if there is a failure to report

· Mandatory reporting obligations apply to a broader group:

(a) a person who, in the course of his or her professional work or other paid employment, delivers health care, welfare, education, children services, residential services or law enforcement, wholly or partly, to children; and

(b) a person who holds a management position in an organisation the duties of which include direct responsibility for, or direct supervision of, the provision of health care, welfare, education, children services, residential services or law enforcement, wholly or partly, to children”, that is, teachers, principals, doctors, health care workers, police officers are mandatory reports.

No longer an exemption for Ministers of Religion.

The obligation operates if there are reasonable grounds to suspect that a child is “at risk of harm” and those grounds arise during the course of, or from the person’s work.

· The term “at risk of harm” is defined broadly in section 23 and includes circumstances where a child or young person has been physically or sexually abused, or ill treated, or where the child’s basic physical or psychological needs are not being met, or where a child through neglect has been denied medical care or where the child is at a serious risk of psychological harm.

The definition captures issues at school or home.

The reasonable grounds test is an objective test.

· Protections for reporters re defamation, report not admissible in civil criminal proceedings except care proceedings, the identity of the reporter is protected and no civil liability for negligent reports.

· Penalties – Civil. Section 27(2); Disciplinary

3.3 Ombudsman Act 1974

Part 3A inserted by Ombudsman Amendment (Child Protection and Community Services) Act 1998 – effective 7 May 1999.

· The Ombudsman has a jurisdiction to oversee the application and operation of the various child protection statutes and the effectiveness of agencies in reacting to complaints or evidence of problems with children and in conducting effective investigations and responding appropriately to the information generated

· The Act requires employers to notify (through Head of Agency) and investigate allegations of “reportable conduct” and convictions against employers.

· The Act applies to issues involving a child (up to 18) at the time of the alleged misconduct, that is, to current and historic matters. There may be some argument about this but the Act would not appear to have retrospective reach in the sense of applying to complaints made prior to its commencement unless such an alleged perpetrator is subject to a further post-May 1999 complaint or the earlier complaint resulted in a conviction that may require investigation by an employer or Head of Agency becomes aware now of an earlier issue (?).

· The obligation to report rests with the “Head of Agency” who must report an allegation or conviction to the Ombudsman within 30 days and file reports with the Ombudsman at the conclusion of the matter including a copy of any Notification that goes to the Commission for Children and Young People if requested by the Ombudsman.

(The requirement for early notification is to enable the Ombudsman to intervene if there are indications of an agency compromising the safety of a child or the integrity of an investigation or the fairness of the process for the employee – see Ombudsman guidelines.)

· The Ombudsman is required to determine whether an investigation into a child abuse allegation has been properly conducted and whether appropriate action has been taken by the agency.

· The Ombudsman can involve itself in an investigation.

· The obligation to report relates to reportable allegations including “reportable conduct” or convictions including:

(a) sexual offences;

(b) sexual misconduct, eg. a relationship between a teacher and a 17 year old;

misconduct which may involve an allegation of reportable conduct.

· Section 25(C)3 requires the Head of Agency to put in place systems to ensure that he/she are advised by employees of any reportable allegation or conviction against an employee of which they become aware.

· The Act specifies certain Government and Non-Government Agencies as designated agencies. In respect of these employers, any allegation or abusive behaviour involving an employee (whether the issue is work related or not) must be reported to the Ombudsman.

· The obligation to notify the Ombudsman does not apply if the employee is not current at the time of the complaint.

· The Act is a New South Wales Act and applies to and governs institutions, authorities and departments operating in New South Wales, that is, the Act has intra-State effect.

· The Act may require the disclosure of abuse involving a New South Wales employee in alleged misconduct occurring outside of New South Wales at an earlier time.

· Employee is defined broadly and includes volunteers and religious.

· System is allegation geared, that is, an allegation notifiable irrespective of its perceived seriousness or veracity (unless it falls within the specified exemptions). Even allegations falling within the exemptions must be investigated by the employer and records of such investigations may be audited by the Ombudsman.

3.4 Commission for Children and Young People Act 1998 – 8/12/98 – Effective 31/5/99

· Establishes the Commission for Children and Young People which is responsible for the operation of employment screening processes.

· Obligation to report is on the employer, not Head of Agency, but the process involves liaison with the Ombudsman and relevant Head of Agency.

· The reporting obligation arises at the conclusion of an investigation where it will be necessary to notify the Commission of relevant “completed employment proceedings”:

The Commission’s database will record the name of the alleged perpetrator as either:

(a) Category 1 – complaint involved matters that are always a cause for concern and the need for a risk assessment will be triggered if a screening application arises in respect of the individual named;

(b) Category 2 – issues of themselves not concerning but if repeated or considered with other matters could indicate a problem – Notification of itself will not impact on employees future employment.

· The Ombudsman may obtain a copy of Notification.

· Definition of “employment” extends to and include performance at work as a Minister of Religion or other member of a religious organisation (section 33).

· Section 37 – duty on an employer to carry out all relevant procedures of employment screening where employment is in a child related area. Child related employment means employment involving direct contact with children where the contact is not directly supervised and includes any employment of kind prescribed by the Regulations. It also includes pursuant to section 37, child related employment by a Minister of Religion or other member of a religious organisation.

· The relevant procedures for pre-employment screening are mandatory unless the employer can establish it is not reasonably practical to carry out those procedures in the circumstances and in that case, the procedure must be carried out as soon as reasonably practical after the person is employed (section 37(3)).

· It is section 39 which obliges the employer to notify the Commission of the name and other identifying particulars re completed employment proceedings.

· Further, the employer may notify on request any other employer of those details.

· Further, notification extends to disciplinary proceedings commenced within a period of 5 years immediately before the commencement of the Section (4 July 1995).

· Pursuant to Section 40 the employer has to notify the Commission of the names and other identifying particulars of any person whose application for child-related employment has been rejected primarily because of the risk assessment in employment screening.

· There has been some discussion as to what constitutes relevant employment proceeding or a completed employment proceeding.

Regulation 8 states what is not a relevant employment proceedings and states that disciplinary proceedings are not relevant employment proceedings:

(a) If there has been a finding in the proceedings that the allegation in respect of which they were brought were false, vexatious or misconceived. In some ways one might think that flies in the face of Section 39 which says there has to be notification irrespective of the findings of those proceedings, but presumably if the finding is that the allegation was false, then there is no necessity to notify, whereas if the finding was inconclusive, then one would have to notify.

(b) Further, employment proceedings in relation to sexual misconduct are not relevant disciplinary proceedings if:

(i) a child was not the victim of that misconduct; and

the misconduct was not directed at children; and

the misconduct did not occur in the presence of children.

Note it would seem by use of the word “and” after each Sub-Section the proceedings are not relevant only if all these categories are met.

(a) Finally, Part 8, Section 3 says that proceedings are not relevant employment proceedings for the purposes of acts violence, if:

(i) a child was not the victim of those acts; and

(ii) those acts were not directed at children; and

(iii) those acts did not occur in the presence of children.

This is a similar test to the sexual misconduct test as set out immediately above.

It is hard to say exactly what is and what amounts to a relevant employment proceedings (as opposed to what isn’t), although clearly it may be an internal type procedure conducted by the employer or Institute. Section 33 defines “relevant employment proceedings” as disciplinary proceedings in NSW or elsewhere against an employee by the employer or by a profession or other body which supervises the professional conduct of the employee, being completed proceedings involving:

(a) child abuse, sexual misconduct by the employee; or

(b) acts of violence committed by the employee in the course of employment.

There had been a number of cases which have concerned the issue of what constitutes “disciplinary action” for the purpose of various statutory entitlements under the Workers' Compensation Act and in context of litigation of industrial issues where workers are to be disciplined. These cases establish that “disciplinary action” means reasonable action lawfully taken against an employee in the nature of or to promote and discipline. The relevant discipline is constituted by the body of duties and such rules of conduct or behaviour as are applicable to or enforceable against the employee by virtue of his employment. The performance of a “disciplinary action” requires conduct by an employer, namely determination by the employer to take some action against the particular employee in respect of defined disciplinary offence.

The CCYP Guidelines define relevant employment proceedings.

3.5 Child Protection (Prohibited Employment) Act 1998 – Commenced July 2000

· Section 5 defines prohibited person.

· Section 9 – a prohibited person can apply for a direction that the Act doesn’t apply to an offence as the person is a fit and proper person to be employed in child related employment, eg. as a teacher and poses no risk to the safety of children.

· Section 6 – offence for a prohibited person to apply for or undertake or remain in child related employment and is an offence for employer to appoint or retain the services of a prohibited person in child related employment.

· Requires all employees in child related employment to disclose to employer any prior conviction for a serious sexual offence.

There have been a number of cases involving a consideration of this Act and the legislative scheme in the context of past offenders seeking an order to enable a return to child related employment.

R .v. NSW Commission for Children & Young People Industrial Relations Commission of NSW - 2002

· In this matter R pleaded guilty in 1992 to a criminal charge that he did sexually assault a young girl aged between twelve and thirteen whilst minding her. He was placed on a good behaviour bond for three years. At the time of the offence R was a head teacher at TAFE and a married man with three children and active in the Uniting Church. He was demoted to the position of teacher and transferred into another location. Some years later he was removed from teaching duty and seconded to an educational officer’s position at TAFE. R then made application under Section 9 of the Child Protection (Prohibited Employment) Act 1998 for a declaration, that the Act did not apply to him in respect of the offence because he was a fit and proper person to be employed as a teacher and posed no risk to the safety of children.

· It was conceded that R had been convicted of a serious sex offence, was a person employed in child related employment and an employee liable to be dismissed under the provisions of the Prohibited Employment Act. It was argued and accepted that at TAFE there were a number of students under the age of eighteen and therefore “children”.

· It transpired that R had been also having an extra-marital affair with the victim’s mother for several years at the time of the commission of the offence.

· A consultant psychiatrist gave evidence that R did not suffer from paedophilia nor any major mental illness or a personality disorder but rather an adjustment disorder, depression and anxiety relating largely to the experience of guilt, regret and remorse as to his past behaviour. The psychiatrist said he did not believe that R was a particular threat or a danger to children placed in the care of a teacher even though there was no clear explanation as to why he behaved as he did towards a thirteen year old child.

· There was no other history of any adverse incident. The Doctor said the greatest risk of recidivism is where the patient has the condition known as paedophilia and a sub-group of same-sex offenders – usually males.

· The positive factors identified by the doctor were, one reported victim, late age of onset of the offending behaviour, relevant stability in his life, absence of mental illness, absence of personality disorder or anti-social personality disorder, no sexual perversion, remorse, regret, shame, insight into the wrongness of his behaviour and his understanding of how it may have impacted on the victim. A second psychiatrist also gave evidence and concluded that R was at a low risk of re-offending.

· The Commission argued that under the Prohibited Employment Act if there was any risk that a person may re-offend then the discretion of the Commission should not be exercised to find a prohibition otherwise applying to a person convicted of such an offence would not apply. Judge Haylen found that the legislation takes away the fundamental privilege of the ability to work and pursue a profession and that needed to be balanced with the importance of protection to be accorded to young people. The Judge said the Act was not intended to impose an additional punishment on a person guilty of a criminal offence of a sexual nature but rather to provide a means of identifying such offenders and to authorities, their employers and to eliminate possible risks that such persons might pose to children. The Judge rejected the submission put on part of the Commission that so long as there is any risk, however minimal, an Applicant may re-offend and therefore pose a risk to the safety of children and thus an order could not be made. He found that the risk is not a mere theoretical or possible risk but is an unacceptable risk, a real risk, a likelihood of harm or a recognisable potential having regard to the need to jointly protect children and employees and to preserve reasonable civil rights.

· The Judge further noted it may be argued the type of employment and the type of students and their age may be relevant in considering the discretion. However it was his view that was not correct and that Section 9 is not designed to allow a person to continue in particular employment but rather the order attached to the person in respect of the offence and not particular work. Thus a person is forever exempt in respect of the offence if the order is granted and therefore the Court must be satisfied that the person is an appropriate person to engage in all child-related employment including the performance of work as a volunteer. His Honour nevertheless felt that conditions pursuant to s9 (9) could be applied to a prohibited person so they could undertake particular employment for example with 17 and 18 year olds and if they wished to apply for wider employment they would need to go before the Commission once again.

· His Honour noted that “child-related” employment is defined to mean employment of a kind that primarily involves direct contact with children. However in the present case, R was not primarily involved in direct contact with children under the age of 18. The vast majority of his students were 18 or older. His Honour found that the definition of “child related employment” in the Prohibited Employment Act should not be construed differently from the same provision in the screening provisions of the Commission for Children and Young People Act. That is why the definition, in effect, means any employment involving direct contact with children though the conduct is not directly supervised.

· The Commission had also argued that R must satisfy the Commission that he is not a risk to the safety of children to what is known as the Briginshaw standard. That standard is now codified by Section 140 of the Evidence Act which essentially says the Court must find the case of a party proved if satisfied the case has been proved on the balance of probabilities, and the Court in doing so must take into account –

(a) The nature of the action or defence.

(b) The nature and subject matter of proceedings.

· That civil standard is a reasonable attempt to find the true facts in the circumstances of a particular case. It does not elevate the standard of proof to a criminal standard. Therefore R did not have to prove that he or she was not guilty of the offence or that he or she will never offend again. An order should be made if the Court can comfortably conclude that on all the relevant material the Applicant does not pose a danger to the safety of children.

· In order to decide on the merit whether the Applicant had established to the Court that he was not a risk, the Commission had to rely on R’s testimony, on what doctors said about him and what character witnesses said about him and all of this evidence relied on his credibility. The Commission made the point that R for quite some time has been reluctant to concede what had occurred and to be truthful about what occurred and how many times he had abused this young girl.

· The Judge felt it was important to distinguish between denial of the offence and minimisation of the extent of the conduct which constituted the offence. R whilst initially denying the allegations shortly after being exposed did admit his guilt. The Court said that the 29 year age gap between the victim and R at the time of the offence pointed to the serious nature of the offence but also that R was a mature man in a position of authority and as it were a father figure being the mother’s boyfriend. There was only one criminal offence however and 10 years had gone without another offence and R had continued for a number of years teaching children without incident.

· In all the circumstances the Judge was comfortably satisfied that R did not pose a risk to the safety of children in his position as a TAFE teacher.

· The Commission said that even if the Court found that R did not pose a risk to the children, that the Court could still refuse to exercise that discretion. The Court rejected that proposition that where R made out his case, orders should not be made, particularly having regard to the obvious disruption to employment and hardship that results from being a prohibited person under the Act. The right to work His Honour said was a valuable human right and perhaps a common law right.

· His Honour considered in the particular case that as R only wished to teach as a TAFE teacher the orders should be limited to permitting him to work within that area although His Honour noted there may be some difficulty in making a limited order and by inference would have been prepared to make a general order but in the particular case the application only sought limited relief.

3.6 Child Protection (Offenders Registration) Act 2000 – Commenced 15/10/01

· Establishes Child Protection Register.

· Persons who have committed relevant sexual offences will have their details recorded on the offenders register and/or will be prohibited persons under the Child Protection (Prohibited Employment) Act 1998.

3.7 Child Protection Legislation Amendment Act 2003

· During 2003, a review was conducted into the operation of the Ombudsman Act and the CCYP Act.

· The Amendment Act took effect on 23 April 2004 and eased some reporting obligations under the Ombudsman Act and CCYP Act.

· The term “child abuse” was replaced with “reportable conduct”.

· Some expansion, however, of conduct caught by the term “reportable conduct” to include certain sexually related offences not previously in the legislation and to include the issue of sexual misconduct.

· Some clarification as to what does not need to be reported to the Ombudsman, for example, touching a child to gain attention, or comforting a distressed child, or allegations of a physical nature that are trivial or negligible.

3.8 The Working with Children Check Guidelines

· Established pursuant to the CCYP Act (section 35) and the Child Protection (Prohibited Employment) Act 1998.

· Sets out details of requirements of employers under the Act re pre-employment screening.

3.9 (i) Ombudsman Publication: “Child Protection – Responding to Allegations of Child Abuse Against Employees”

· Initially published March 2001; current version issue July 2004.

· Overviews and explains legislation.

· Part 5 sets out details in relation to investigative processes.

Part 3.7 asserts that under the Ombudsman Act, the person the subject of the allegation must be a current employee of a designated agency or have been an employee at the time the allegation was made and must be identifiable.

The Act appears to specify that the obligation to report is in respect of current employees.

3.14 appears to state that if a person was an employee at the time the reported allegation was made and has since left the employment, the employer needs to notify the Ombudsman because the person was an employee at the time the allegation was reported. However, if the employer only becomes aware of the allegation after the employee left, it’s not necessary to notify the Ombudsman. Therefore the interpretation it would seem is that if you become aware of an allegation whilst the person is an employee and when the Act is operational then you need to report even if the person subsequently leaves your employment before you get around to doing the reporting but if you only hear of the allegation after the person has ceased to be an employee then you do not.

It should also be noted that if a person makes an allegation and doesn’t want it to go any further or even say they are going to withdraw it, there is still an obligation to report notwithstanding the wishes of the complainant (3.19). Generally however it would seem that even where an allegation is withdrawn there is still an initial obligation to report it in the interests of transparency.

Part 3 appears to be an interesting and useful explanation.

3.A (ii) New South Wales Inter-Agency Guidelines for Child Protection Intervention 2000

· Government publication outlining the legislative framework for co-operation and co-ordinated work between government agencies and community sector agencies and families in the child protection area.

· Reflection of government concern that there be a co-ordinated inter-agency approach to the problem.

· Department of Community Services has legal responsibility in providing and co-ordinating community response.

4. CONCLUSION

In summary, there has therefore been a general tightening up in the area of civil exposure. However school authorities will need to remain vigilant re cases of bullying, excessive punishment and sexual abuse.

Far more accountability and support in respect of this decision making now exists in relation to child protection issues. The 2003 legislative review may reflect some slight readjustment of the balance in favour of civil liberties considerations in the context of the Child Protection regime.

5. ACKNOWLEDGEMENT

I acknowledge the significant assistance and input of my Partner Robert Higgins, in the preparation and development of this paper

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This news bulletin is published by Carroll & O'Dea for general information only and is not intended as legal advice. Anyone wishing to receive advice on the matters referred to in this bulletin should approach their professional advisers. All liabilities are expressly disclaimed for any loss or damage that may arise from any person acting on any statements or information contained in this bulletin.