Regulatory frameworks that are based on core principles and standards have an important advantage over prescriptive frameworks – specifically, they are intrinsically flexible and capable of applying to a wide spectrum of regulated entities and regulated activities. A key challenge that arises in the context of these types of regulatory frameworks is how broad regulatory principles and standards reflected in the regulatory framework can be practically converted into tangible steps and measures to ensure compliance. This challenge is illustrated in the relation to the implementation of Child Safe Standards (CSS) in Victoria.
Context for the introduction of Child Safe Standards
In April 2012, the Victorian Government initiated a landmark inquiry into the handling of child abuse allegations, which became known as the ‘Betrayal of Trust Inquiry’ (Inquiry). Key findings from that Inquiry included:
- poor and inconsistent practices for keeping children safe
- some organisations’ cultures did not focus on children’s safety
- many organisations failed to report or act on child abuse allegations
- over-reliance on Working with Children Check and limited use of other preventative tools
- gaps and inconsistencies in policies and practices to prevent child abuse
- more support needed to assist organisations to implement child safe policies.
Among the recommendations made by the Inquiry, was the introduction of Child Safe Standards (CSS), the purpose of which is to drive cultural change within an organisation so that protecting children from abuse is embedded in the everyday thinking and practice of leaders, staff and volunteers.
The regulatory framework to implement Child Safe Standards
The regulatory framework to implement Child Safe Standards (CSS regulatory framework) is contained in Child Wellbeing and Safety Act 2005 (CWSA) and is overseen by the Commission for Children and Young People (CCYP). Relevant amendments were made to the CWSA to implement CSS in 2015. Those amendments took effect on 1 January 2016.
The main objective of the CSS regulatory framework is to ensure that organisations that provide services or facilities for children implement CSS to protect children from harm and abuse, including child sexual abuse, physical abuse, serious emotional and psychological abuse and serious neglect.
This objective is achieved by requiring organisations and businesses to have effective processes in place to respond to and report all allegations of child abuse that will help to embed child safety into organisational culture and provide a minimum standard of child safety across all organisations.
This regulatory framework is complementary to the Reportable Conduct Scheme (RCS), which came into effect on 1 July 2017, and requires organisations that are subject to the scheme to report and appropriately respond to reportable conduct.
There are seven Child Safe Standards:
- Standard 1: Strategies to embed an organisational culture of child safety, including through effective leadership arrangements.
- Standard 2: A child safe policy or statement of commitment to child safety.
- Standard 3: A code of conduct that establishes clear expectations for appropriate behaviour with children.
- Standard 4: Screening, supervision, training and other human resources practices that reduce the risk of child abuse by new and existing personnel.
- Standard 5: Processes for responding to and reporting suspected child abuse.
- Standard 6: Strategies to identify and reduce or remove risks of child abuse.
- Standard 7: Strategies to promote the participation and empowerment of children.
The sentiment and objectives underlying the CSS cannot be faulted. They help to provide a vision of what a child safe organisation should look like. However, some may be difficult to translate into practice. For example, ‘Standard 1 – strategies to embed an organisational culture of child safety’ is very broad and, potentially, could be technically complied with through a wide range of very different strategies. The question remains whether technical compliance will lead to achievement of the core objective underlying the CSS – that is, to protect children from harm.
Implementation of the CSS should not merely be a tick-box exercise to demonstrate that each of the CSS have been addressed. Rather, implementation of the CSS should be done in a coherent and holistic manner so as to ensure the implementation measures proactively, tangibly and effectively prevent child abuse, thereby minimising the number of instances of reportable conduct under the RCS.
The key to ensuring compliance with the letter and spirit of a principle or standards-based regulatory framework – like the CSS regulatory framework – is understanding the detail that implicitly lies behind the high-level principles or standards. This detail may be found in codes (such as in the workplace safety context) and/or in guidance provided by the regulator (such as the guidance provided by the CYPP in relation to the implementation of the CSS). These subordinate or subsidiary instruments can be modified or tailored to specific contexts relatively easily compared with the legislation under which they are applied.
Even with the benefit of detailed explanatory instruments like codes and regulator guidance, it is important for regulated entities to determine what the principles or standards mean in practice for the specific context applicable to the regulated entity. Ensuring that the CSS are implemented in a way that is consistent with the letter and spirit of the law involves:
- understanding the CSS, both conceptually and practically
- determining how the CSS can be best incorporated into an organisation in a holistic manner, including what changes are needed and new initiatives that may be required
- developing a program to ensure systematic and consistent adoption of the CSS and all relevant facets of the organisation’s activities.
The diagram below summarises how the above seven standards could be translated into tangible features of a regulated entity’s operations to help ensure compliance with the CSS:
Regulatory frameworks that are based on high-level principles and standards are desirable in many ways. Their inherent flexibility allow them to apply broadly without the need for volumes of prescriptive legislation. They also accommodate future risks and developments, helping to ‘future proof’ the core legislation from the need for ongoing revisions and amendment. Nevertheless, principle or standard-based regulatory frameworks may be hard to translate in practical terms in the absence of appropriate detail and guidance. Regulators have a role to play in providing regulated entities with such detail, but it is also incumbent on regulated entities to undertake their own due diligence to understand what the high-level principles or standards mean in practice for them.