On 11 January 2013, the Federal Government announced the appointment of a six-member Royal Commission to investigate institutional responses to child sexual abuse.

The Commission will examine past and current child sexual abuse in public and private institutions. This expressly includes child-care, educational and sporting institutions and therefore includes independent schools and their associated child-care and sporting organisations.

The Commission will be based in Sydney although evidence will be gathered from many other locations throughout Australia.

The Commission may make findings and recommendations on:

  • how organisations with a responsibility for children have managed and responded to claims of sexual abuse and other forms of abuse and neglect associated with child sexual abuse;
  • whether organisations have done enough to respond to child sexual abuse when it has happened;
  • what organisations can do to better protect children under their care;
  • what organisations should do to identify child sexual abuse and encourage people to report it;
  • how organisations should respond when they find out information that suggests that sexual abuse of children under their responsibility is happening, or has happened in the past;
  • what the barriers and failures have been to reporting, investigating and dealing with cases of child sexual abuse in organisations, and how these barriers can be removed in the future;
  • what organisations should do to support survivors where child sexual abuse does occur; and
  • what organisations should do to ensure victims receive justice, including through redress by organisations, and investigation and prosecution of perpetrators.

There is therefore a significant possibility that some independent schools may become involved in the Commission hearings if there is some history relevant to the Commission’s enquiries.

The Commission has the power to compel witnesses to give evidence and produce documents. If a witness is summoned to attend and appear before the Commission, they are required to attend and give any evidence sought, subject to the existence of a reasonable excuse. Courts have declined to regard a private confidentiality obligation as a reasonable excuse. Further, witnesses who may be compelled to give evidence will be granted a range of protections from liabilities which might arise from them giving evidence. The Commission can also take evidence or prepare its report in a way that protects the identity and confidentiality of witnesses.

If a school becomes involved in the hearings of the Commission, it can be expected to provide:  

details of steps taken by the school to ensure that it does not employ unsuitable staff (both teaching and non-teaching);

  • publication and training of staff alerting them to their obligations to students (including content, frequency and currency);
  • procedures in place to deal with allegations of abuse if they arise. Whilst each case will often be done on a case-by-case basis, there should be an established protocol for staff to follow in the event of concern as to the possible sexual or other abuse; and
  • if there has been a previous incident, reference to the policies and procedures in place at that time to ensure that the school did not historically employ unsuitable staff.

The Commissioners have been appointed for three years and are required to prepare an interim report by no later than 30 June 2014. In that interim report, the Commissioners will also identify when their final report will be completed. An initial final reporting date has been set for 31 December 2015, but may be extended.

Whilst schools may not participate for some time, they should take steps to review their current practices and procedures.

Similarly, any and all documentation relevant to the issues to be considered by the Royal Commission should be retained and readily accessible.

Schools should seek advice at the earliest possible opportunity. Responses to Royal Commissions are major undertakings, and are often coupled with very short timeframes. Accordingly, time taken now in obtaining advice and preparing for any potential summons to produce documents or give evidence can greatly assist should a school be called upon to do so.