We have seen significant child safety developments this year – from a historic $3.5 million awarded in damages for a historical child abuse case to the rise of child safety investigations due to the Reportable Conduct Scheme. As we move towards a new year, organisations should reflect on whether child safety is truly embedded in their operations. This article will cover some of the key developments to watch and tips for organisations to be prepared for 2020.
What will 2020 bring?
2020 will be another big year in the child safety sector. In particular, it is likely that we will see the following areas of focus.
- Legislative reform – as states continue to fulfil their commitments in response to the recommendations by the Royal Commission on Institutional Responses to Child Sexual Abuse (Royal Commission), we expect to see further legislative changes across Australia.
- Redress Scheme Deadline – the deadline of 30 June 2020 to join the National Redress Scheme is fast approaching. While this may be extended, organisations will need to act quickly if they are considering joining the scheme. This is particularly so as pressure from the Scheme Operator increases with several organisations receiving letters encouraging them to join.
- Focus on Investigations – we have seen increased scrutiny by regulatory bodies in states with reportable conduct schemes regarding investigations by organisations. The interplay with employment obligations and other regimes will also be aspects for organisations to consider in the new year.
- eSafety – the upwards trend in use of social media by young people will continue in 2020, prompting an increase in child safety considerations. Already, we are seeing a sharp spike in use of apps such as Snapchat, Tik Tok and Instagram being used in cyberbullying, image based abuse and grooming. Organisations will need to be prepared to address these issues in the coming year consistent with their duty of care.
Upcoming legislative changes
There are significant legislative changes that have been introduced in various states and are expected to be passed in 2020.
A key area of change will be reporting requirements. In Victoria, school counsellors will become mandatory reporters on 31 January 2020. Victoria has also passed legislation that will require people in the religious ministry to be mandatory reporters with no exemption for religious confessions. There is no confirmed date for when this will take effect but it is anticipated to be early to mid-2020.
Similar changes have taken place in Tasmania where legislation was passed in September 2019 to require individuals in religious ministry to report child sexual abuse and also makes it a crime for any person to fail to report child abuse. It is expected that similar legislation will be considered or passed in other states in 2020, being a key recommendation of the Royal Commission.
Another expected area of legislative change is in regards to the National Principles for Child Safe Organisations. The National Principles were launched in this year and align with the Royal Commission’s recommendations. While these are currently considered best practice, it is likely they will become legally mandated soon, especially as the current National Framework for Protecting Australia’s Children reaches its end in 2020.
We may also see legislative change in other areas of the Royal Commission’s recommendation including WWCCs, liability for unincorporated institutions and associated trusts, image based abuse and reverse burden of proof regarding duty of care for organisations.
Redress scheme deadline
Due to the Redress Scheme deadline and significant payments for historical child abuse claims, we are likely to continue seeing historical claims being brought and settled in 2020. Given the large amounts of damages being awarded in civil claims, the average Redress Scheme payment of $80,466 will be enticing for organisations expecting significant claims. With the deadline, organisations will need to move quickly in their decision making, particularly larger groups that may be joining as part of a representative model as these are time extensive to set up. Furthermore, it is likely we will get a better sense of assessments under the scheme. As of November 2019, the Scheme Operator had only processed 814 out of 5,290 applications.
Child safety investigations
In 2019, the reportable conduct schemes in Victoria and ACT entered their second year. This saw a change from regulatory bodies taking an educative approach to beginning to take increased compliance action. In Victoria, the Commission for Child and Young People (CCYP) became increasingly willing to question investigation findings. We are also beginning to see the first disputes under the scheme, demonstrating the need for a thorough investigation process in accordance with regulator’s requirements as well as your employment obligations.
This trend is likely to continue in 2020. As regulators become more focused on compliance, there will be real risks for organisations that fail to properly investigate child safety concerns. There is also discussion in other states such as Queensland and Tasmania to introduce reportable conduct schemes.
In 2019, the eSafety Commissioner produced an eye-opening report regarding the risk of image based abuse amongst children and the impact on child safety. This report as well as increasing litigation against organisations for failure to fulfil their duty of care demonstrates the need for organisations to consider child safety in the digital realm. Common concerns include inappropriate contact between employees / volunteers and children and the risk of grooming, child on child cyberbullying and inappropriately shared images or videos. With the reverse burden of proof in relation to an organisation’s duty of care in several states such as Victoria, NSW and Queensland, it is vital that organisations are adequately prepared to manage these concerns.
Get prepared now
Organisations need to be prepared for 2020 and the child safety landscape. Aside from the expected changes above, there is likely to be less tolerance for organisations that do not have proper compliance in place. We recommend that organisations take the steps below.
- Child safety strategy – in your strategic planning for 2020, ensure that child safety is a key consideration. Consider what your organisation’s stance will be on child safety going forward and what you could improve on this year in light of learnings from the previous years and upcoming changes.
- Training – the start of the year is a good time to remind your staff and volunteers and their child safety obligations. There are often new starters as well who will need to undergo training. For schools, it is a good time to conduct training in accordance with your compliance obligations.
- Policy and procedure review – Consider when you last reviewed your child safety policy and procedures and whether they are appropriate in light of recent or anticipated changes. In particular, most organisations fail to properly address the electronic aspect of child safety and find themselves ill-equipped to address these issues.
- Empower children – the National Principles place a significant emphasis on empowering children, as well as the child safe standards in states. This will become an important strategy for organisations to fulfil their duty of care, particularly in relation to child on child abuse and eSafety concerns.