Children Legislation Amendment (Reportable Conduct) Bill 2016

Written on the 23 March 2017

23 February 2017

COUNCIL 

Second reading 

GEORGIE CROZIER (LIB) 

Document resumed from 9 February; motion of Ms TIERNEY (Minister for Training and Skills).

 

Ms CROZIER (Southern Metropolitan) I am pleased to rise this morning and speak to the Children Legislation Amendment (Reportable Conduct) Bill 2016.

This bill amends the Children, Youth and Families Act 2005 to improve oversight of organisational responses to allegations of child abuse and child-related misconduct. It provides the Commission for Children and Young People with the appropriate functions and powers to administer, oversee and monitor the reportable conduct scheme and enables the sharing of relevant information as necessary with the Commission for Children and Young People, regulators, Victoria Police and the Secretary to the Department of Justice and Regulation.

It does do a number of other things with a number of other acts, but I want to speak to why we are debating this bill this morning and how it has come about. I will go back to the Betrayal of Trust report, the inquiry into which I had the pleasure to participate in in the last Parliament. The report that the committee of which I was a member put out looked at this issue very extensively. If you look at the Betrayal of Trust report, chapter 18 is dedicated to this whole area of improving, monitoring, oversight and capacity building regarding reports of child abuse.

During the inquiry, which was as members know an extremely extensive inquiry undertaken by the Parliament, we delved into many of these issues and many of the issues that organisations, both religious and non-government, were looking at in terms of how to deal with child abuse and the allegations of misconduct. We have got the Royal Commission into Institutional Responses to Child Sexual Abuse, of course; that is still ongoing, and I am sure that it will have similar findings to what our inquiry reported on in this report. I am pleased to say that the royal commission has concurred with many of the findings from that extensive inquiry, echoing a lot of the sentiments and a lot of the findings and looking towards recommendations, I hope, that will make children safer.

I will speak to this in a little bit more detail. One of the things that we did conclude was that organisations required guidance and scrutiny, and many of the organisations that came before the committee told us that they were seeking support in establishing appropriate systems and processes for responding to any suspected child abuse that may be occurring. They also had great goodwill and dedication to ensure that those environments that they were working within were child safe. So there was lots of goodwill by organisations to provide a safe environment, but they really did want some guidance about that. The committee received evidence from many organisations that they were also looking for that guidance and an ability to implement the processes for handling such abuse. That was one of the findings, and as I said we heard from a number of leaders of various organisations, cultural groups and others that provided that evidence and information to the committee.

One of the other things that we looked at to understand what was happening in other jurisdictions we really wanted to ensure that we were not repeating or duplicating something unnecessarily but looking at what was working was the model in New South Wales, and the model in New South Wales was monitoring and scrutinising systems and processes, which is undertaken by the Ombudsman. That model has been in place for something like 16 years, and this piece of legislation is largely modelled on what occurs in New South Wales. I am pleased that the legislation does reflect, largely, what we found in our inquiry and our findings and conclusions in this report. We did have a look at what the New South Wales Ombudsman did, and we wanted to understand the level of engagement that the New South Wales Ombudsman and that model undertook and how it would apply. In doing so there were four broad areas, as the report details on page 365 of the second volume, that were particularly important, and these included:
  • the capacity to scrutinise and monitor an organisation's response;
  • to investigate the manner of the organisation's response;
  • to build capacity and assist organisations in appropriately responding to complaints;
  • to identify and monitor trends in the manner of responding to complaints to assess the adequacy and effectiveness of an organisation's response.

One of the witnesses who gave evidence is the very highly regarded CEO of the Australian Childhood Foundation, Dr Joe Tucci, who also made a statement around capacity building, the level of scrutiny that organisations require and that they have come under, how it needs to be investigated and what needs to be done. It was very helpful to have such eminent people come before the committee to give such good evidence. We also heard from the deputy ombudsman from New South Wales, who really explained the values of the system in place and how it operates in New South Wales. As I said it has been operating for something like 16 years. What the committee wanted to do was not reinvent the wheel but ensure that we had a model where there was not unnecessary duplication, a robust model that would work. In saying that, there is some duplication in this bill, and I will come to that later in my contribution. It is about getting the model and the implementation right.

I want to just give as an example and this is one of the things that we found that not all of the reportable forms of conduct will necessarily be considered criminal child abuse and reportable to police. Any criminal abuse has to be reported immediately to police. That should be undertaken, and that is what any organisation should do.

One of the areas in the New South Wales Ombudsman Act 1974 defines reportable conduct. I just want to read this again from the report, because I think you have to distinguish between some organisations who might be trying to provide guidance, but we need to be careful of grooming elements that some individuals might undertake under a guise, so this reportable conduct definition and identification is very important. These were our findings in relation to how it was defined in the New South Wales model. The definition includes:

(a)    any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material ), or

(b)   any assault, ill-treatment or neglect of a child, or

(c)    any behaviour that causes psychological harm to a child

whether or not, in any case, with the consent of the child.

Reportable conduct does not extend to:

(a)    conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or

(b)   the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or

(c)    conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA

of that particular act.

In this, as I said, we wanted to be extremely cautious about the grooming elements and also what should be reported and how organisations should be able to do that, so we also were conscious of that, and that is why the Ombudsman Act of New South Wales in this model also stated:

Examples of conduct that would not constitute 'reportable conduct' include (without limitation) touching a child in order to attract a child's attention, to guide a child or to comfort a distressed child; a school teacher raising his or her voice in order to attract attention or to restore order in the classroom; and conduct that is established to be accidental.

I think there are important elements about that, because the reportable conduct definition is largely around what I have just described in this bill, and the bill goes on to speak of sexual misconduct. It includes behaviour, physical contact, speech or other communication of a sexual nature, including inappropriate touching, grooming behaviour and voyeurism. It covers overtly sexual behaviour and all types of communication of a sexual nature, including online or electronic communication and online grooming behaviours. I actually think it is important to note that it does encompass those new mediums. In 2017 we know there are elements of grooming through electronic means. This needs to be captured, and certainly reportable conduct does capture that electronic medium, which I think is very, very important to note.

There are other elements, and in the interests of time I am not going to go through all the clauses of the bill, but I just want to make a few other points around some of the findings that occurred throughout the parliamentary inquiry because I think this is also important as to why this bill is before the house. One of those findings was to look at 'Improving monitoring and scrutiny in Victoria', and it was very clearly identified to the committee that responses to allegations of child abuse in organisations were often inconsistent, inaccessible, sometimes overly complicated or very narrowly focused. So there was no overarching body to ensure that this scrutiny and monitoring could occur.

The parliamentary inquiry came out of the very thorough and significant Cummins inquiry that was commissioned by the former minister, Ms Wooldridge. So too came a recommendation of the Cummins inquiry that the government introduce the Commission for Children and Young People legislation. In March 2013 the Commission for Children and Young People was set up, so that was a significant reform that came out of the Cummins inquiry. In the act this is an agency independent of government that is able to table its own reports in the Parliament. I think that is a very important point, too: the independence of the commission must be maintained if it is to do its job. If it is to

Ms Mikakos You'd just like to attack the commissioner.

Ms CROZIER Well, Minister Mikakos, this is an important point, because we are going to have faith in the way this

An honourable member interjected.

Ms CROZIER If this legislation is going to be implemented properly under your watch as we know, we have had an absolute mismatch under youth justice, and we have just moved a no-confidence motion in you, which this house passed I think there is a lot that you need to undertake. The point is that the commission needs to be independent in its processes, and I make the point

Ms Mikakos Are you attacking the commissioner?

Ms CROZIER No, I am making a point about

Ms Mikakos You have attacked the commissioner on two occasions.

Ms CROZIER Well, you walked in, Ms Mikakos, with only just

The ACTING PRESIDENT (Mr Ramsay) Order! Through the Chair!

Ms CROZIER Thank you, Acting President. I am just reaffirming the independence of the commission, and I would hope that that would be maintained. I made that point, and I make it again. And I just made the point that the commission was set up by the former minister, Ms Wooldridge, following the very significant inquiry conducted by Philip Cummins and various others.

So just to go back to that point, it was important that there was an overarching body that could actually undertake the monitoring of such a reportable conduct scheme, and I note that various comments were made by the commissioner at the time, Bernie Geary, who also gave evidence to the committee. Mr Geary indicated that for such a body to work effectively it would be necessary for the relevant government departments and agencies to embrace the system and change their culture. That is what I am saying in relation to, yes, the opposition will support this bill but it is up to the government to be able to implement the changes that are required and look at how the commission will undertake this.

In terms of the various elements of the bill that go to the need to have the commission be able to do that, clause 10 amends various sections of the Commission for Children and Young People Act 2012 to enable the commission to delegate a power or function of the commission under that act. If I look at various aspects that are provided in the explanatory memorandum, the commission is the responsible statutory authority for overseeing, administering and monitoring the reportable conduct scheme. It does require that the commission will be able to liaise with the relevant regulators to avoid unnecessary duplication and to share information and provide advice and guidance about the protection of children. That is, I suppose, the point I wanted to make about duplication ensuring that we have a model that does not have that duplication element and that the commission also, as the act outlines, has the powers to perform the necessary functions under the new sections of the bill.

The new section that is also relevant to the powers of the commission:

concerns the systems that the head of an entity must ensure are in place within the entity to ensure compliance with the scheme. Systems will include appropriate policies and procedures for preventing reportable conduct by an employee and for investigation and responding to such conduct.

Also:

Subclause (1) provides that the head of an entity must ensure that systems are in place to prevent reportable conduct within the course of an employee's employment, investigate and respond to reportable allegations, and to enable any person to notify the head of an entity of a reportable allegation, or the commission of a reportable allegation involving the entity head.

So there is a significant obligation on organisations to ensure that this is undertaken, and I think that organisations do understand that they have a responsibility here. As I said, they were very willing when they came before the parliamentary inquiry to really do as much as they could to ensure the safety of children, but it will be up to the government to ensure they get the implementation right. The implementation of the scheme is going to be undertaken in three phases, and the first phase starts from 1 July of this year. From 1 July the scheme will apply to those entities in schedule 3, including those involved in child protection and family services, out-of-home care services, youth justice services, residential services for children with a disability, various education providers, government and non-government schools and government departments.

It is my understanding that phase 2 will commence on 1 January 2018, which will apply to those entities listed in schedule 4, and they include organisations such as hospitals, other disability services for children, providers of overnight camps, religious bodies and the residential facilities of boarding schools. The third phase, which will commence from 1 January 2019, will apply to early childhood services and statutory bodies that have a responsibility for children, such as public museums and galleries.

I note there were some concerns. I did receive some questions from various stakeholders about family services or hospitals that provide a range of services such as oral health guidance and things like that, and I think that the bill does pretty well explain that it is covered. Those organisations need to understand the reportable conduct scheme, and they need to have those processes in place. I think it is pretty self-explanatory that anyone dealing with children would understand that they have a responsibility to ensure that they are providing a child safe environment.

As I said, this bill came from the findings of the parliamentary inquiry and its report, Betrayal of Trust, and particularly it does emanate from recommendation 18.1. That recommendation states:

That the Victorian government authorise an independent statutory body with relevant investigatory powers and legal and operational resources to:
  • oversee and monitor the handling of allegations of child abuse by relevant government departments, religious and non-government organisations;
  • undertake independent investigations into systems and processes in the context of allegations of reportable conduct and/or reportable convictions;
  • scrutinise and audit the systems and processes in non-government organisations for handling allegations of child abuse;
  • monitor and report on trends associated with allegations by collecting relevant data and report to the Parliament on an annual basis

I think that is a very important element that the commission looks at those trends to understand what is happening and if there are any gaps and I think there will be a role of government to monitor this also.

The final point in recommendation 18.1 is:

build the skill and knowledge of personnel in relevant government departments, religious and non-government organisations to ensure they have the capacity to competently handle allegations of suspected child abuse.

That was the recommendation that the inquiry that I served on found in relation to reportable conduct, and I think those elements will hopefully be captured over time. I think they are very important to reiterate.

I just want to make a couple of final points. It was agreed in principle at a Council of Australian Governments meeting in April of last year that reportable conduct schemes should be harmonised across jurisdictions. This bill broadly aligns with reportable conduct schemes already in place, as I have mentioned, in New South Wales and the ACT.

I think we need to be mindful that the royal commission is still ongoing, and it possibly is also looking at reportable conduct schemes in relation to the various findings that it may have found. Also, one would hope that it would look at the New South Wales model, look at this bill, see how the schemes are working in the jurisdictions that have them in place and hopefully not create a model with a whole new system if a system is in place and has been working, as has been the case in New South Wales.

I look forward to hearing what the royal commission might have to say when it finally concludes its very important work. As I said, I am very proud to have been part of a committee in this Parliament that undertook very important work, generated out of the Cummins inquiry, which was commissioned by the very effective then Minister Wooldridge. I am pleased that the current government is following on from the very important recommendations that our inquiry made. It is now 2017, so I am very pleased to see this come into the Parliament. Again I commend all those people involved in that inquiry, because it was such a significant piece of work, and out of that we are getting some very good reform hopefully.

I think the community as one want to make organisations accountable and they want to protect children where they can. This report identified those gaps. It was also identified that there was enormous goodwill within the community amongst so many people and organisations towards ensuring that their organisations provided a child safe environment and that child safe standards applied. The opposition supports the bill in principle, but we will be very keen to see how the government implements these important reforms.

 


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