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Victorian Safety Standards and changes to Crimes Act 1958 (Vic)

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Victorian Safety Standards and changes to Crimes Act 1958 (Vic)

In addition to mandatory reporting of suspected abuse for certain classes of person, the State Government of Victoria has commenced rolling out new Child Safe Standards (‘the Standards’) in response to the Inquiry into the Handling of Child Abuse by Religious and Other Non-Government Organisations and the resulting ‘Betrayal of Trust’ report.

The following is a brief overview of the Standards and additional offences introduced to the Crimes Act 1958 (Vic) relate to a failure to report or protect a child from abuse.

THE STANDARDS

The Standards are established by the Child Wellbeing and Safety Act 2005.

They are the compulsory minimum standards that will apply to organisations that provide services to children. They are designed to help protect children from all forms of abuse.

There are 7 Standards and 3 overarching principals.

The overreaching principles which must apply in respect of each standard require the promotion of:

  1. cultural safety of Aboriginal children;
  2. cultural safety of children from culturally and/or linguistically diverse backgrounds; and
  3. safety of children with disability.

The Standards are:

Standard 1

Strategies to embed an organisational culture of child safety, including through effective leadership arrangements (for example a designated Child Safety Officer and that the leadership of the organisation must be made aware of any allegations of abuse or child safety concerns).

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 (that the Police and/or child protection must be notified if child abuse is suspected).

Standard 6

Strategies to identify and reduce or remove the risk of abuse (which must focus on child safety  – e.g., by suspending the alleged perpetrator or providing them with alternate duties pending investigation).

Standard 7

Strategies to promote the participation and empowerment of children.

A child under the Child Wellbeing and Safety Act 2005 is a person under the age of 18.

The Standards are intentionally non-prescriptive for the purpose of allowing each organisation flexibility to adopt them in most suitable way for its profile. For example, a sporting club will have different factors to take into consideration than a service which provides overnight residential care services.

There are however more prescriptive Standards which have been developed and set out by Ministerial Order for schools registered under the Education and Training Reform Act 2006.

Compliance dates

The implementation of the Standards applies to organisations from 1 January 2016 in two phases:

  1. Organisations which provide services for children that are government funded and/or regulated will be required to work towards compliance from 1 January 2016 with compliance begin required by 1 August 2016;
  2. Other organisations that provide services for children will be required to comply from 1 January 2017.

Criminal offences regarding child safety

Along with the Standards, in response to the Betrayal of Trust recommendation, the Government introduced three offences to the Crimes Act 1958 to improve the protection of children from abuse.

The three offences are:

  • grooming offence relating to communication, including electronic communication, with a child or their parents with the intent of facilitating the involvement of a child in a sexual offence (s44B) and applies to people who a child is under the care of including, but not limited to, a religious official or spiritual leader, youth workers, sports coaches, and out of home carers;
  • a ‘failure to disclose’ offence  for an adult who has information that leads them to form a reasonable belief that a sexual offence has been committed in Victoria against a child which obliges them to report to Police as soon as practicable, unless the person has a reasonable excuse for not doing so (s327);
  • a ‘failure to protect’ offence that applies to people within organisations who knew of a risk of child sexual abuse by someone in the organisation and had the authority to reduce or remove the risk but negligently failed to do so (s44C).

Under section 44C a child is a person under the age of 16 who is or may come under the care, supervision or authority of a relevant organisation.

The definition of relevant organisation is one that exercises care, supervision or authority over children, whether as part of its primary functions or otherwise. It includes, among others:

  • a church;
  • a religious body;
  • a school;
  • an education and care service;
  • children‘s service;
  • an out of home care service;
  • a sporting group;
  • a youth organisation;
  • a charity or benevolent organisation.

It also includes organisations which might contract with or enter into an agreement or arrangement with any of the types of organisations listed above where they are required or permitted to engage in activities associated with care, supervision or authority over children exercised by the primary organisation.

An example might be welfare sector temporary staff agency which provides workforce personnel to other organisations to provide care for young people.   In practise, these subcontractor/extended arrangement organisations could be much broader and spread the organisational responsibility much further.

Penalties for breach of s44B, 44C and 327 of the Crimes Act

The penalties for the offences are:

  • maximum of 10 years imprisonment for the grooming offence;
  • maximum of 5 years imprisonment for the failure to protect offence; and
  • 3 years imprisonment for the failure to report offence.

RISK MANAGEMENT

Because the Standards and offences were introduced so recently there is no case law relating to them that may be instructive on how a Court might interpret the obligations of an organisation or individual to discharge its obligations.

Good governance would require the Board and/or Executive of an organisation providing services to children to continuously devise, review and scrutinise its compliance with:

  • its engagement of employees, volunteers and contractors with screening processes and background checks;
  • any applicable mandatory reporting requirements (not directly addressed by this paper and separate to the obligations by the Standards set out above);
  • establishing protocols, systems and an environment with accord with the Child Safety Standards; an
  • educating staff, volunteers and contractors to encourage sound communication about issues of child welfare and safety and reporting and protection requirements and the personal risks to individuals for failing to report of protect children in their care.

If you have questions regarding this note, please contact Ingrid Nunnink on 9604 9406.

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