The Development of Child Protection Law and its Impact 11 th Europe Pacific Conference,

1. The Development of Child Protection Law and its Impact 11th Europe Pacific Conference, Pocol, Italy January 2007 Paul Davis Legal

2. The Development of Child Protection Law • and its Impact • An Overview of Child Protection Law in Australia • No single uniform Child Protection system • No consistent practice frameworks and systems • Significant overlap • Concurrent principles applied • [Bromfield, L / Higgins, D. A National Approach to Child Protection: How Close Are We? 2005] Paul Davis Legal

3. The Development of Child Protection Law and its Impact Current legislation ACT: Children and Young People Act 1999 NSW: Children and Young Persons (Care and Protection) Act 1998 Commission for Children and Young People Act 1998 Part 3A Ombudsman Act 1974 Child Protection (Prohibited Employment) Act 1998 NT: Child Protection (Offender Reporting and Registration) Bill QLD: Child Protection Act 1999 Commission for Children and Young People and Child Guardian Act 2000 TAS: Children, Young Persons and their Families Act 1997 SA: Children’s Protection Act 1993 VIC: Children and Young Persons Act 1989 Working With Children Act 2005 WA: Children and Community services Act 2004 Western Australian Family Court Act 1997 Working With Children (Criminal Record Checking) Act 2004 Paul Davis Legal

4. The Development of Child Protection Law and its Impact • History • 1924 Geneva Declaration on the Rights of the Child • 1981 United Nations Declaration of the Rights of the Child • 1989 Convention on the Rights of the Child (CRC) by the United Nations’ General Assembly Paul Davis Legal

5. The Development of Child Protection Law and its Impact • Rights of child as set out in CRC include right to: • Freedom from hunger and protection from diseases • Access to free compulsory primary education • Adequate health care • The right to know and be cared for by both parents • The right not to be separated from one’s family • The rights to registration, a name and nationality from birth • The rights to an identity and to preserve such an identity • Equal treatment regardless of gender, race or cultural background • The right to express opinions and freedom of thought in matters affecting them • Safe exposure to leisure, play, culture and art (UN 1989) Paul Davis Legal

6. The Development of Child Protection Law and its Impact • Mandatory Reporting Law • UN Declaration of the Rights of the Child in 1981. • General broadening of mandatory obligation to notify concerns of abuse or neglect beyond medical profession Paul Davis Legal

7. The Development of Child Protection Law and its Impact • Impediments to reporting have been found to include: • Fear of identification of self or victim • Fear of personal safety • Confusion regarding obligations / inadequate training • Lack of confidence to identify and report • Reluctance to become involved • Lack of professional experience or knowledge • Loss of sensitivity to the problem • Existing relationships with families • [McCallum, F. Law Policy and Practice: Is It Working for Teachers in Child Protection? 2002] Paul Davis Legal

8. The Development of Child Protection Law and its Impact Differences between states in terms of definitions and procedures leads to under-reporting Paul Davis Legal

9. The Development of Child Protection Law and its Impact • Differences between states • procedures and services • intake procedures and requirements • Responses required to matters that didn’t meet the threshold for statutory intervention • [Bromfield, L Higgins,D. National Comparison of Child Protection Systems 2005] Paul Davis Legal

10. The Development of Child Protection Law and its Impact • Similarities between states: • Services available to children and families • Mandatory reporting requirements • Case management practices • Investigation requirements • Training was similar • Working with Children Check: • comprising of the following common fields: • Convictions or crimes against children • Relevant crimes against adults • [Bromfield, L Higgins,D. National Comparison of Child Protection Systems 2005] Paul Davis Legal

11. The Development of Child Protection Law and its Impact • Recent Research on risk management: • Organisational risk factors • For workplaces that deliver services to children • [eg schools, hospitals, child care and residential care facilities] • For community-based organizations that deliver services to children • [eg churches and church-based ministries, sporting, hobby and interest clubs and associations that deliver services to children] • [Beyer,L, Higgins,D Bromfield, L Understanding Organisational Risk Factors for Child Maltreatment: • A Review of Literature 2005] Paul Davis Legal

12. The Development of Child Protection Law and its Impact • High risk situations: • Home or home-like contexts • Activities within the home of the victim or the perpetrator • Capacity to make contact outside of an organized activity • Situations where services are provided to vulnerable children due to age, disability, history of abuse or neglect • Hierarchical structures where the conduct of the perpetrator can’t be easily challenged due to authority Paul Davis Legal

13. The Development of Child Protection Law and its Impact • High risk situations: • Patriarchal structures where the conduct of the perpetrator can’t be easily challenged due to strong relationships of trust, respect and social standing • Poor disclosure policies • Where complaints are handled internally or complaints are managed inappropriately through the use of mediation for example. Paul Davis Legal

14. The Development of Child Protection Law and its Impact • Effective Risk Management • Selection, screening and detailed assessment of potential employees • Victim- focused prevention programs • Accessible complaint registration process • community awareness programs • educative programs for children and young people • building rapport and trust within professional boundaries Paul Davis Legal

15. The Development of Child Protection Law and its Impact • Situational prevention • Site inspections, • risk assessment of activities, • periodic audits of professional practices, • codes of conduct, • support from management of complex circumstances, • clear policies. Paul Davis Legal

16. The Development of Child Protection Law and its Impact • Community based prevention • Educative programs for employees, volunteers, parents, carers, and children • Broad circulation of policies and professional standards • Liaison with and access to educative programs • developed by Police, Health, Community Services, Ombudsman, Commission for Children and Young People Paul Davis Legal

17. The Development of Child Protection Law and its Impact Screening systems NSW: Commission for Children and Young People Act 1998 Paid employees only wwcc – covers relevant criminal records, employment proceedings, relevant AVO’s Child Protection (Prohibited Employment) Act 1998 Paid and voluntary employees Requires declaration that applicant has not been convicted of a serious sex offence against children Paul Davis Legal

18. The Development of Child Protection Law and its Impact Screening systems QLD: Commission for Children and Young People and Child Guardian Act 2000 Paid and voluntary employees Blue card + annual risk management strategy required by relevant organisations VIC Working With Children Act 2005 Paid and voluntary employees Paul Davis Legal

19. The Development of Child Protection Law and its Impact • Employment Law Issues in Child Protection • Requirement for effective risk management • Volunteers Paul Davis Legal

20. The Development of Child Protection Law and its Impact Effective Risk Management Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony’s Primary School) v Hadba [2005] HCA 31 (15 June 2005) …..reinforced the long held view that child-related workplaces have a responsibility to take reasonable steps to protect students from abuse or harm and to investigate the professional conduct of staff when required. Paul Davis Legal

21. The Development of Child Protection Law and its Impact Effective Risk Management NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4 (6 Feb 2003) “…schools are unusual in that their responsibility extends to protecting children and young people from the wrongful behaviour of third parties even if that behaviour is criminal.” Paul Davis Legal

22. The Development of Child Protection Law and its Impact Effective Risk Management Sullivan v Moody [2001] 75 ALJR 1570 …an employer’s statutory responsibility to investigate an allegation made against a person – be that person employee or parent - is the paramount consideration, and the impact of the process on the person subject of the allegation is secondary: “…Their (in this case Dept of Community Welfare – SA) professional and statutory responsibilities involved investigating and reporting…allegations..It would be inconsistent with the proper and effective discharge of those responsibilities that they should be subjected to a legal duty, breach of which would sound in damages, to take care to protect persons who were suspected of being the sources of that harm….” Paul Davis Legal

23. The Development of Child Protection Law and its Impact Effective Risk Management State of New South Wales v Paige [2002] NSWCA 235 In this appeal of the District Court where it was found that the DET had breached its duty of care as the investigation into the conduct of Mr Paige in accordance with the procedures required under the Teaching Services Act 1980 had resulted in him suffering from psychiatric harm. Spigelman CJ who delivered the main judgement stated that “.. the requirement to provide a ‘safe system of work’ was concerned with the conduct of tasks for which an employee was engaged; that is, not to matters concerning the incidents of the contract of employment, such as disciplinary procedures..” Paul Davis Legal

24. The Development of Child Protection Law and its Impact Effective Risk Management Ref.: Decision of the House of Lords: Johnson v Unisys {2001] 2WLR 1076 Heptonstall v Gaskin [2004] BSWSC 80 (26 March 2004) Paul Davis Legal

25. The Development of Child Protection Law and its Impact Effective Risk Management Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as St Anthony’s Primary School) v Hadba [2005] HCA 31 (15 June 2005) …..reinforced the long held view that child-related workplaces have a responsibility to take reasonable steps to protect students from abuse or harm and to investigate the professional conduct of staff when required. Paul Davis Legal

26. The Development of Child Protection Law and its Impact • Effective Risk Management • Inappropriate use of the workplace email and internet • AMACS v Ansett Australia Ltd [2000 FCA 441] • For dismissal of an employee on the basis of “email misconduct” the employer must show: • The email was for a purpose that was clearly not authorized as defined in policy • That the issue is not simply to do with the content but the use of email was not authorized • The matter is investigated • The employer is afforded procedural fairness in being provided with an opportunity to respond to the allegation Paul Davis Legal

27. The Development of Child Protection Law and its Impact Volunteers s61 Civil Liability Act (NSW) 2003 (and similar legislation in most states and territories) provides significant protection to volunteers themselves the organization may be vicariously responsible for the volunteers’ negligence Paul Davis Legal

28. The Development of Child Protection Law and its Impact • Volunteers • Evidence of change in community standards: • shift towards the effective management of volunteers • screening to volunteers Paul Davis Legal

29. The Development of Child Protection Law and its Impact • Volunteers • Resource poor organisations = risk: • Lack of clear accountability structures • Inadequate funding (which results in reliance on volunteers or minimal remuneration standards often resulting in high staff turn-over) • Lack of procedures and policies for reporting and investigating complaints • Management attempting to protect the reputation of the organization by not reporting • Inadequate internal enquiries into complaints Paul Davis Legal

30. The Development of Child Protection Law and its Impact Volunteers The transfer of the psychology of the employer/ employee relationship to the management of volunteer workforces is incomplete and less protected by clear boundaries. Paul Davis Legal

31. The Development of Child Protection Law and its Impact Privacy Issues in Child Protection Privacy Act 1988 Some protection to children from unauthorized photographers: Classification (Publications, Films and Computer Games) Act 1995 national classifications scheme re standards for films, computer games and other publications incl internet content. Broadcasting Services Act 1992 (Schedule 5) prohibits certain categories of content from the internet (s5) incl. content classified as RC (Refused Classification) or X18+ R18+ and not subject to a restricted access system Paul Davis Legal

32. The Development of Child Protection Law and its Impact Privacy Issues in Child Protection Legislation in NSW: s21G Summary Offences Act 1988 (NSW) Prohibits filming or photographing to provide sexual gratification provided the person is undressed or engaged in a private act where they may reasonably expect privacy, and does not consent to filming s 562 AB Crimes Act 1900 (NSW) Prohibits a person from stalking or intimidating another person with the intention of causing the other person to fear for their physical of mental harm – ie must show intention s 91H Crimes Act 1900 (NSW) Prohibits production, dissemination or possession of child pornography This doesn’t protect children who may be filmed in contexts that are not sexual Paul Davis Legal

33. The Development of Child Protection Law and its Impact Privacy Issues in Child Protection Proposed reform Establish criminal offence that prohibits unauthorized use of photographs of children Establish criminal offence to deal with voyeurism where and expectation of privacy exists [Unauthorised Photographs on the Internet and Ancillary Privacy Issues: Discussion Paper, Aug 2005 – Attorneys-General Standing Committee] Paul Davis Legal

34. The Development of Child Protection Law and its Impact • Current issues and developments • Grooming – community standards and community awareness • Risk management standards • Addressing predatory behaviours through the Internet • Complex communities where neglect and abuse is commonplace Paul Davis Legal

35. The Development of Child Protection Law and its Impact References: Bromfield, L. Higgins, D. A National Approach to Child Protection: How Close Are We? National Audit of Australian Child Protection Research Australian Institute of Family Studies 2005 Bromfield, L Higgins, D. National Comparison of Child Protection Systems Child Abuse Prevention Issues, 22 2005 www.aifs.au/nch/issues Beyer, L. Higgins, D. Understanding Organisational Risk Factors for Child Bromfield, L. Maltreatment: A Review of Literature National Child Protection Clearinghouse Australian Institute of Family Studies 2005 A Report to the Community Services Ministers’ Advisory Council (CSMAC) McCallum, F. Law Policy and Practice: Is It Working for Teachers in Child Protection? University of South Australia 2002 Paul Davis Legal