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A New Child Safe Scheme for NSW

A New Child Safe Scheme for NSW

Published on June 9, 2021 by Stephanie McLuckie and David FordStephanie McLuckie and David Ford

In December 2020, the Office of the Children’s Guardian (OCG) invited comments on a draft Bill – the Children’s Guardian Amendment (Child Safe Scheme) Bill 2020 (the Bill).

The OCG conducted extensive consultation with stakeholders, including child-related organisations and other government and non-government stakeholders, to develop the new Child Safe Scheme. The Bill has now been introduced to the NSW Legislative Assembly and debate has been adjourned following the second reading speech. We expect the Bill to be passed by the end of the year.

If passed, the Bill will amend the Children’s Guardian Act 2019 (NSW) (the Act) to create a regulatory framework requiring child-related organisations in NSW (including religious bodies) to comply with the Child Safe Standards, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse.

The OCG already oversees NSW’s Reportable Conduct Scheme, following amendments to the Act in 2020. However, one issue with this system is that the OCG is only able to respond to incidents of which it has been notified.  Further, there are limited means of enforcement, which would require organisations to implement such a system to prevent Reportable Conduct from occurring.

Essentially, the object of the Bill is to embed the Child Safe Standards as the primary framework to guide child safe practices in New South Wales. The Child Safe Standards are principle based and outcome focused, recognising that there must be flexibility in how the standards are implemented, taking into account an organisation’s size and resources.

Under the Bill, the OCG will have the power to investigate an organisation’s child safe system, policies and processes, monitor the organisation and issue compliance notices. Failure to comply with a compliance notice will be an offence.

As such, the Bill gives the OCG additional powers to step in and ensure an organisation is doing its best to ensure child safety and prevent the abuse of children.

What are the Child Safe Standards?

The Child Safe Standards are set out in section 8C of the Bill:

The Child Safe Standards are—

  1. Child safety is embedded in organisational leadership, governance and culture.
  2. Children participate in decisions affecting them and are taken seriously.
  3. Families and communities are informed and involved.
  4. Equity is upheld, and diverse needs are taken into account.
  5. People working with children are suitable and supported.
  6. Processes to respond to complaints of child abuse are child focused.
  7. Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training.
  8. Physical and online environments minimise the opportunity for abuse to occur.
  9. Implementation of the Child Safe Standards is continuously reviewed and improved.
  10. Policies and procedures document how the organisation is child safe.

The Child Safe Standards incorporate the existing child safety framework for people and organisations that provide children’s services, including the Reportable Conduct Scheme, Working With Children Check and other reporting obligations to the Police and the Department of Communities and Justice.

The Child Safe Standards were initially accepted as good practice by the NSW government in 2018, with the first Guide to implementing the Standards already available here. The NSW Child Safe Standards complement the National Child Safe Principles. It is expected that an organisation that complies with the National Principles will also comply with the Child Safe Standards.

In Victoria, a similar set of child safe standards has already been mandated and Ministerial Order 870 — Child Safe Standards — Managing the risk of child abuse in schools outlines how the Standards (as compulsory minimum standards) apply in all Victorian schools. The Victorian Registration and Qualifications Authority (VRQA) is responsible for ensuring schools implement the Standards and, as such, schools must demonstrate compliance with the Standards to be registered.

We expect that, once the Bill has passed through parliament, the NSW Education Standards Authority (NESA) will take a similar approach. Indeed, it is already a requirement that a registered non-government school have in place policies and procedures to meet its legislative obligations in regards to child protection. However, policies and procedures are not enough. If NESA takes a similar approach to VRQA, NSW schools will have to demonstrate that the Standards have been implemented, with a focus on regular review, assessment and improvement of its practices.

The Standards provide real guidance for organisations to create an environment and culture that puts the interests of children first and keeps them safe from harm.

On this basis, we recommend that schools in NSW act now to review their current child safety framework, including existing policies, practices and procedures for compliance with the Child Safe Standards.

While it is anticipated that organisations will have two years to demonstrate compliance with the amended Act once the Bill has passed, implementing these Standards now will help to ensure your school is creating a stronger, safer environment for children and that it will be compliant whenever it is next time to apply for registration renewal .

If you would like assistance with updating your policies and child safety framework, please get in touch with David Ford or Stephanie McLuckie.

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