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THE DEVELOPMENT OF CHILD PROTECTION LAW

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					  THE DEVELOPMENT OF CHILD PROTECTION LAW
         IN AUSTRALIA AND ITS EFFECT




  1. Overview of Child Protection Law


  2. Challenges Currently Facing Child-Related Workplaces


  3. Some Related Employment Law Issues




A paper presented at the Europe-Pacific Legal Conference,
              Pocol, Italy 14 January 2007




                                                        Paul Davis
                                                          Solicitor
The development of legislation designed to support the engagement of children in their
community with freedom from the risk of harm has emerged slowly and inconsistently
from state to state in Australia. The absence of a single uniform child protection system
operating throughout Australia presents significant challenges to many child-related
employers who are required to keep abreast of changing guidelines and related
processes, protocols and compliance responsibilities in a number of states throughout
this country. The varying jurisdictional boundaries creates scope for predators to slip
through the cracks and move to the jurisdiction that best meets their strategic goals.

Due to the state-based nature of child protection legislation in Australia, there is no
single common practice framework within which case managers, government agencies,
employers, families and other stakeholders are able to engage for the purpose of
addressing situations where children are perceived to be at risk of harm. This state-
based differentiation creates potential for confusion and accidental breaches of
compliance responsibilities. The differences between one jurisdiction when compared to
the next presents some scope for predators to take advantage of this inconsistent
approach, thereby reducing the effectiveness of the legislation generally.

Analysis of current legislation operating in each state indicates that there is however,
significant overlap between the states and territories and that concurrent principles exist
which underpin each state‟s interpretation of international concerns regarding the
protection of children1. This reinforces the view that there is potential for the
development of a uniform national legislative approach to child protection in the future.

A comprehensive strategy to enable children and young people to engage in their world
with confidence and security requires a response that extends beyond legislation. It is
through increased community awareness, access to education about child safety,
effective policies, professional codes of conduct and simple, transparent processes that
this aim will be achieved. Whilst legislation existing in most states focuses on responding
to risk of harm and employment screening processes, further legislation is required in
most states to improve community awareness generally and to facilitate more potent
educative processes aimed at managers and proprietors of child-related workplaces.
Part 3A Ombudsman Act (NSW) 1974, which broadens of the powers of the NSW
Ombudsman to scrutinize and advise on employers‟ response to complaints of
“reportable conduct” in designated child-related workplaces, successfully achieves many
of these objectives.

The purpose of this paper is to provide an overview of current child protection legislation
in Australia and discuss some recent and proposed legislative responses aimed to
protect children and young people from risk.




1
    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)

                                              -2-
       1. An Overview of Child Protection Law in Australia

The rights of children can be traced to the 1924 Geneva Declaration on the Rights of the
Child and the 1989 Convention of the Rights of the Child. It was the development of the
1989 Convention on the Rights of the Child (CRC) by the United Nations‟ General
Assembly that saw recognition of children‟s rights internationally.

The first World Summit for Children followed the CRC and here the World Declaration
on the Survival Protection and Development of Children and the plan of action for
implementing this Declaration was signed. This framework guided national governments
international organizations, non-government organizations and individuals to respond to
this initiative.

During the 1960s and „70s, Australians (like citizens of many nations of the western
world) acquired a greater awareness of issues relating to the abuse and neglect of
children and a slow but significant shift in community standards has been taking place
since that time. One indicator of this shift was Australia‟s signing of the United Nations
Declaration of the Rights of the Child in 1981.

The rights of the child as set out in CRC include the right to:

          Freedom from hunger and protection from diseases

          Access to free compulsory primary education

          Adequate health care

          Know and be cared for by both parents

          Not to be separated from one‟s family

          Registration, a name and nationality from birth

          An identity and to preserve such an identity

          Equal treatment regardless of gender, race or cultural background

          Express opinions and freedom of thought in matters affecting them

          Safe exposure to leisure, play, culture and art.2




2
    United Nations Declaration of the Rights of the Child (1989)
                                                          -3-
In Australia, these rights are currently reflected in legislation that aims to safeguard the
welfare of children as outlined below:

ACT:           Children and Young People Act 1999

NSW:           Ombudsman Act 1974

               Children and Young Persons (Care and Protection) Act 1998

               Commission for Children and Young people Act 1998

               Child Protection (Offenders Registration) Act 2000

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


The effectiveness of current legislation
An analysis of current child protection law in Australia indicates that the general aims of
such legislation are twofold:

   1. To address situations where children are exposed to the risk of harm.
   This is achieved through legislation that imposes a mandatory legal obligation on
   particular individuals including agency leaders and employees to notify the details of
   children who are perceived to be at risk of harm to the government agency charged
   with related case management responsibilities.

   2. To implement structures to minimize the risk of potential harm to children
      as they engage in their world (this includes schools, hospitals, hobby
      clubs, sporting associations, youth groups, welfare agencies and church
      ministries).
                                               -4-
      This includes the requirement for prescribed parties to engage in processes aimed to
      assess and / or manage the risk relating to their engagement in child-related work in
      particular settings.

When considering the development of Child Protection aw in Australia, the primary focus
to date has been placed on responding to children who are perceived to be at risk of
harm. Whilst this is a fundamental goal of any child protection strategy, legislation of this
kind is limited in its effect in that it causes a reactive response to those circumstances
where children are already exposed to risk situations. Such legislation on its own is
limited and does little in a proactive sense to maintain child safety unless it is
complemented by legislative structures designed to address other matters including:

         The establishment of standards regarding the recruitment of people to work with
          children in particular high risk contexts,

         The monitoring of child-related employers‟ responses to complaints made against
          their employees regarding alleged conduct that may have caused harm to
          children,

         The provision of educative processes and advisory support so that the
          community is more equipped to respond effectively to more covert and subtle
          behaviours that may amount to potentially predatory conduct.

In 1999, the state of New South Wales introduced a suite of legislation that had the
effect of addressing the objectives outlined above; in more recent times other states
have either introduced or are moving towards the introduction of legislation that aims to
establish standards regarding the recruitment of people to work with children in particular
high risk contexts through what has become known generically as the Working With
Children Check. Whilst this term is used throughout all states and territories, it has
different meanings in each jurisdiction which also creates potential for confusion and
misunderstanding.

Employment Screening
Whilst every state and territory has existing or proposed legislation that will require
people in child related employment to undergo a working with children check there are
differences in respect of the scope of the check, the classes of employees who are
required to comply with such legislation, and the additional information considered to be
relevant to the screening process.

Some of these variations are outlined below:

          Application of legislation
          In New South Wales the screening process applies to all preferred applicants for
          paid child-related employment3, whereas in Queensland it also applies to
          volunteers4; on the other hand, in Victoria the screening process applies to both


3
    Part 7 Commission for Children and Young People Act (NSW) 1998
4
    Commission for Children and Young People and Child Guardian Act (QLD) 2000
                                                  -5-
          paid and voluntary employees but only in specified categories of child-related
          employment5.

          In New South Wales the Commission for Children and Young People Act 1998
          requires employers to obtain from preferred applicants for both paid and
          voluntary child-related employment a Prohibited Employment Declaration that
          confirms that they have not been convicted of a serious sex offence or serious
          violence offence against children. This is an additional strategy designed to
          preclude a particular class of offender from seeking child-related employment .

          Scope of the Working With Children Check
          The Working With Children Check varies in terms of scope also: in Queensland
          and Victoria for instance, the check doesn‟t include Apprehended Violence
          Orders and only collects information regarding disciplinary proceedings from
          specified professional bodies. In New South Wales employment screening
          includes relevant Apprehended Violence Orders and employment proceedings
          that are required to be completed by all child-related employers.

          Outcomes of the Working With Children Check
          The outcome of the screening process in New South Wales is a risk rating for a
          specific position having considered the tasks undertaken in the specific position
          as well as the vulnerability and age of the children and young people to whom
          the service is being delivered. For Queensland the outcome is a suitability card
          that is valid for two years, yet in Victoria the suitability card is valid for five years
          with monitoring for any new Victorian charges, convictions or findings of a
          prescribed kind 6. Therefore whilst the term Working With Children Check is
          widely used, the meaning of this term varies from state to state.

          In New South Wales under the Child Protection (Offenders Registration) Act
          2000, a person who has been found to be guilty of a registrable offence against
          children as defined by the Act is bound by strict reporting obligations and
          automatically becomes a Prohibited Person under Commission for Children and
          Young People Act 1998. Offences include murder, sexual offences, possession
          of child pornography and offences related to child prostitution.

Mandatory reporting
Mandatory reporting of children perceived to be at risk of harm of abuse or neglect
remains a major strategy to keep children safe and over time this obligation to notify has
broadened beyond the medical profession to other professions which are regularly
engaged with children in their work.

The difficulties in ensuring that this obligation is met are related to the level of awareness
of this mandatory responsibility and the preconception that such notification may cause
5
    Working With Children Act (VIC) 2005
6
    Beyer, L                 Understanding Organizational Risk Factors for Child Maltreatment:
    Higgins, D.              A Review of Literature
    Bromfield, L             National Child Protection Clearinghouse
                             Australian Institute of Family Studies 2005
               (A report to the Community services Ministers’ Advisory Council ) p.72
                                                    -6-
more harm than good. McCallum‟s research identified the following impediments to this
legal obligation being met:

              •    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 families7

One strategy to address the issue of awareness-raising is to make Child Protection
training compulsory before being registered to be employed in related professions. For
example, in South Australia this has been the case for teachers since 1989 8. The value
of ongoing dialogue with key personnel in child-related workplaces regarding child
protection issues is not easily achieved but appears to be the most effective means of
responding to these identified impediments.

The structures required to intercept and address circumstances where children are
believed to be exposed to the risk of harm are resource intensive, require significant
expertise and at times demand the co-ordination of numerous agencies. A recent
disturbing example of where the response to a highly complex situation did not attract
appropriate resourcing, expertise or adequate interagency collaboration constituted the
report of the inquest of baby Sturt, the infant daughter of alcoholic parents who lived in
the remote Aboriginal community of Kununurra, 1000km east of Broome. This case was
reported in the Weekend Australian in December 2006.9

In this report, Western Australia‟s chief pathologist Karin Margolius described the
condition of the baby which included significant pneumonia, nappy rash, scabies and
extensive skin depigmentation as “the worst I have ever seen”.10 Further to this it was
reported that the Western Australia‟s Department of Community development “knew
about the „history of parental drunkenness and neglect‟, but failed to intervene.”11

The report also states that the system designed to protect baby Sturt had failed even
though family members requested that the Department of Community Development

7
    McCallum, F,   Law Policy and Practice: Is It Working For Teachers in Child Protection
                   University of South Australia      2002
8
  ibid
9
  The Australian – 16-17 December 2006
10
   ibid
11
   Ibid
                                                    -7-
have the baby taken away as they couldn‟t cope with this responsibility. The report
states that the Department held information on file that outlines “a decade of evidence
showing that (the mother‟s) alcoholism had prevented her from properly looking after her
four other children,” unfortunately the Department failed to refer to it.12

This case showed that the resources available and structures operating in respect of this
matter were inadequate in terms of the level of training of case managers, their capacity
to address the complex, endemic nature of the social problems facing the Kununurra
community, and the apparent absence of any kind of interagency response.

This case also demonstrates that a legislative response to child protection is ineffective
unless it is supported by substantial government funding, ongoing education and
professional support for case managers, specialized expertise with the capacity to
address complex social contexts.

Oversight of disciplinary proceedings
At this time, New South Wales has quite unique legislation in place to scrutinize the
response that child-related employers make to complaints of the professional conduct of
their employees.

In addition to legislation focusing on care and protection of children at risk of harm and
the working with children background check, in New South Wales Part 3A Ombudsman
Act 1974 gives powers to the State Ombudsman to scrutinize the response employers
make to complaints of “reportable conduct” and to provide necessary advice and support
to designated child-related employers13. This framework aims to ensure that the
standards applied to investigation procedures are appropriate and that principles of
natural justice and procedural fairness are adhered to.

. Under this scheme, heads of agencies to whom the legislation applies are required to:
     Notify the Ombudsman within 30 days of becoming aware of any „reportable
        allegations involving their employees
     Investigate those allegations
     Take appropriate management action as a result of their investigations and if
        necessary notify the Commission for Children and Young People 14.
The office of the NSW Ombudsman reviews the investigation documentation forwarded
to them and provides recommendations regarding further steps required on how the
agency‟s investigation process may be improved in the future.

Through the case management processes of the NSW Ombudsman‟s office, an
assessment of the allegations received by them is made and, depending on the level of
seriousness of the matter and the capacity of the agency to respond to it, an appropriate
level of support is provided to the agency to ensure that it is investigated effectively. In
2005-06 the Ombudsman monitored or investigated more than 25% of the more serious
matters that were notified15. In that period the Ombudsman received 1 786 notifications,


12
   ibid
13
   Ss25B-G Ombudsman Act (NSW) 1974
14
   Ombudsman Annual Report 2006/07 p112
15
   ibid p113
                                            -8-
of which 60% involved physical assault and 17% involved a sexual offence or sexual
misconduct.16

The practical effect of this legislation is the increased awareness of child-related
employers regarding issues relating to the safety and well-being of children. While this
works well in New South Wales, the development of legislation that promotes sound
investigative practices and enhanced awareness of risk issues remains a challenge
facing most Australian jurisdictions.

Limitations of a state-based legislative response to child protection
It may be argued that the absence of a national response to, and interpretation of the
United Nations Declaration of the Rights of the Child in 1981 has limited the
effectiveness of Child Protection law in Australia. However, given the consistency of
principles underpinning current Child Protection law, there is potential for current state-
based systems to develop consistent definitions, standards and frameworks which would
have a positive impact on our response to this international concern.

The National Child Protection Clearinghouse, an advisory body on child protection
matters for the Department of Families, Community Services and Indigenous Affairs.
The national focus of this advisory body has produced some interesting research in
relation to Australia‟s response to Child Protection from a national perspective.

The National Audit of Australian Child Protection Research 1995-2004 delivered the
following findings:
      There have been very few national research or evaluation projects conducted in
        the area of child protection
      Only three multi-site cross-state research projects reported in the Child
        Protection area
      Current child protection related laws and services for the care of children are
        more similar than different across Australian jurisdictions.17

It was also found that the absence of comparable data, differing definitions and
terminology impedes the capacity to research the effectiveness of Australia‟s response
to these international conventions.18 Hence there is a need for the development of a
national research plan to identify existing research gaps and to develop structures that
facilitate cross-jurisdictional co-operation, allow for unique approaches to local
circumstances, and facilitate the sharing of best practice initiatives and resources.


       2. Challenges Facing Child-Related Workplaces

2.1 Risk Management


16
     ibid
17
     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)
18
     Ibid
                                              -9-
Risk management, in a general sense presents as an ongoing concern for leaders of
child-related workplaces. Those organizations that rely heavily on voluntary workforces
to deliver services to children face the complex task of shifting a culture by imposing
more robust management and accountability structures. Another significant challenge is
managing the privacy and predatory risks relating to internet and email use by children
and young people.

The High Court decision in Trustees of the Roman Catholic Church for the Diocese of
Canberra and Goulburn (as St Anthony‟s Primary School) v Hadba [2005)19 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. Cases such as this combined with increased awareness and
changes in community standards, have caused managers of child-related workplaces to
give considered attention to matters relating to risk assessment and management.

Managers of Australian workplaces providing services to children including schools,
hospitals, child care and residential care facilities have become increasingly aware of
their responsibilities to respond appropriately to risks identified to minimize workplace
risks that their services potentially present.

Community-based organizations that deliver services to children including church
ministries, sporting, hobby and interest clubs and associations have gradually introduced
change to elevated community standards through the review and development of
practices and structures designed to keep children safe. Significant steps taken by these
organizations include the introduction of policies, systems and practices that conform to
current community expectations in this regard.

High risk situations
The research of Beyer, Higgins and Bromfield identified the following situations to be of
high risk :
         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
         Patriarchal structures where the conduct of the perpetrator can‟t be easily
            challenged due to strong relationships of trust, respect and social standing
         Where the perpetrator has economic independence
         Where accountability structures are lacking – ie where complaints won‟t be
            taken seriously or excessive trust is placed in the adult and the child won‟t be
            listened to
         Poor disclosure policies




19
  Trustees of the Roman Catholic Church for the Diocese of Canberra and Goulburn (as Saint Anthony’s
Primary School) v Hadba (2005) HCA31(15 June 2005)
                                                 - 10 -
           Where complaints are handled internally or complaints are managed
            inappropriately through the use of mediation for example. 20


From this list of risk areas it appears that risk may be effectively managed in child-
related workplaces by removing in the primary sources of problems being:
     the potential for casual contact outside of the professional context, and
     the absence of clear professional boundaries

In addition to this, the development of clear policy and procedures regarding complaint
management, detailed codes of conduct setting out the parameters of appropriate
professional conduct and ongoing effective educative processes that covers child
protection risk management would go some considerable distance in reducing the level
of risk that children are exposed to as they engage in the world outside of their homes.

To achieve legal compliance in some states and meet current community standards
throughout Australia, managers of child-related workplaces face the challenge of
implementing programs, policies and structures designed to manage risk effectively.
Research indicates that some of the most effective methodologies to manage risk
effectively include the following:21

Victim-focused prevention
Complaint management: An organisation‟s use of accessible, consistent, well-publicised,
streamlined complaint-registration processes designed to collect all issues and concerns
of stakeholders is recommended rather than the preservation of complex and
cumbersome systems or the continuing absence of any developed process at all.

Community awareness and educative programs: Strategies designed to educate and
support stakeholders in using complaints processes amounts to responsible, transparent
management and in many cases allows for smaller concerns to be intercepted at an
early stage. Creating environments and structures where the perspectives of children
are recorded and responded to may also be regarded as an effective risk management
strategy; educative programs to encourage children to effectively engage in appropriate
consultative processes would obviously be required to achieve this goal.

Strategies designed to prepare employees who are engaged in child-related professions
to become accustomed to an environment wherein children may be heard should they
have a complaint or concern represents a significant challenge and a social shift for
some, particularly those who have not been involved in child-related employment
consistently over the last several decades.

Building rapport and trust within professional boundaries: The development of
appropriate, strong relationships of trust may also be regarded as an effective risk
management strategy as such relationships will encourage the communication of
concerns or issues at an early stage.


20
   Beyer, L. Higgins, D. Bromfield,L. Understanding Organisational Risk Factors for Child Maltreatment:
National Child Protection Clearinghouse Australian Institute of Family Studies 2005
21
   Ibid
                                                 - 11 -
Situational prevention
The assessment of sites for child-based activities in terms of general safety, capacity for
supervision, oversight and intervention when required is becoming more commonplace
in many child-related workplaces. However, in some circumstances where children are
taken into unknown or foreign environments, such assessments and related risk
management structures cannot be so easily applied.

The development of policies, protocols and professional codes of practice for people
engaged in child-related work is also effective in providing some parameters within
which workers are expected to conduct themselves.

Community based prevention
Liaison with and access to educative programs developed by government agencies
including the Police, Health Departments, Community Services Departments,
Ombudsman‟s offices and the Commission for Children and Young People have been
identified as productive sources of information and support in managing risk.


Selection, screening and detailed assessment of potential employees.
The application of sound, thorough recruitment processes aimed to assess risk and to
determine the aptitude of candidates may be regarded as routine; however in
circumstances of competing priorities (including the desperation to fill a critical vacancy,
the custom of a more relaxed approach towards the engagement of volunteers,
expediency and political implications of rejecting an applicant) it has been found that the
quality of such processes may be compromised.

The analysis of criminal record data alone must be regarded as an extremely limited
means of reducing risk as research indicates that very few offenders are actually
convicted. The requirement for thorough processes of enquiry regarding the suitability of
people to work with children is of critical importance. This includes taking into account
factors including: the nature of the work to be undertaken, the age and vulnerability of
the children that the employee will have contact with, the supervisory and management
structures in place in the work environment, the level of education and experience of the
prospective employee with regard to child protection matters, the existence of a code of
conduct or clear directions regarding professional standards, as well as other
considerations relating to the specific context under consideration.


2.2 The Management of Volunteers
When considering the organizational risk and high risk characteristics referred to above,
the management of volunteers presents significant challenges for employers of child-
related services. Over time, the introduction of legislation particularly in the area of
occupation health and safety has increased the standards applied to the engagement
and management of 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. For example, the President of a club may socialize with some of the parents
who also assume the role of volunteer worker providing services to children under her /
his direction. The volunteer worker may not necessarily see that the President of their
                                            - 12 -
delegate has the authority to provide direction and to manage them. In the interests of
keeping all parties happy and the volunteer engaged in providing generous support to
the club this delicate issue is not addressed clearly.

Whilst in NSW the Civil Liability Act (NSW) 2003 22 provides significant protection to
volunteers themselves (and similar legislation applies in most states and territories) in
most circumstances - excluding circumstances where their conduct is of a criminal
nature23 or they are intoxicated24 - the organization may be vicariously responsible for
the volunteers‟ negligence.

This represents substantial challenges to community-based organizations that deliver
services to children including church ministries, sporting, hobby and interest clubs and
associations; it involves a revised mindset about the authority of the organization to
supervise, apply standards, discipline and terminate voluntary employees. It also
involves a significant shift in the perspective of the volunteer employee to expect access
to appropriate induction and training, ongoing management and support and current,
relevant policies and a code of practice.

The application of screening to volunteers represents a significant investment in child
safety and is representative of significant social change and community expectations.
As organizations that rely heavily on the goodwill of volunteers tend to be resource poor,
(be they sporting organizations, after school care centres, church related ministries for
youth or hobby groups) the following significant organizational risk factors as identified
by a Beyer et al (2) are not uncommon:25
     Lack of clear accountability structures
     Inadequate funding
     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

Such organizations are therefore challenged to budget for and/or adjust their business
model so that adequate resources will be available in the future to ensure that the
standard applied to the management of their voluntary workforce meets community
expectations. To fail to engage in such review processes at this time in many cases,
presents a significant risk to their long-term sustainability.


2.3 Child Protection in the Electronic Age
The inappropriate use of the internet represents a significant risk to children and young
people. The NSW Ombudsman has recently identified the use of internet chat rooms by
adults for the purpose of grooming children and young people in processes that may


22
   s61 Civil Liability Act (NSW)2003
23
   s62
24
   s.63
25
   McCallum, F. Law Policy and Practice: Is It Working for Teachers in Child Protection?
University of South Australia 2002
                                                 - 13 -
lead to sexual assault is noted as an area of particular concern 26. This concern is one
that is shared by the NSW Police Service which has invested resources in investigating
these practices and rolling out education programs in NSW to alert children and young
people to this issue.27 As discussed below, the Crimes Act (NSW) 1900 is inadequate in
its response to this kind of conduct as current provisions were not specifically designed
to protect children and young people from exploitation while engaged in activities related
to contemporary internet use.

Following some controversial cases in late 2004 involving the circulation of photographs
of young people engaged in sporting competitions on internet sites without the consent
of the owner or their parents, the Privacy Commission conducted some research on this
issue. In their discussion paper, “The Internet and Ancillary Privacy Issues”28
consideration was given to the potential for legal reform to respond to these concerns. In
its paper, the Privacy Commission has recommended that a review be undertaken to
assess the adequacy of the current national privacy principles in terms of their relevance
and effect, particularly in the light of technological developments over recent years.29

A review of current law in New South Wales indicates that there is no provision that
specifically responds to the growing concern relating to the circulation of photographs of
young people on internet sites without consent. Certainly child protection legislation
requires that such matters be investigated and notified for employment screening
purposes if such conduct has been found to have occurred in a prescribed child-related
workplace context. The Summary Offences Act 1988 (NSW) prohibits filming or
photographing for the purpose of providing sexual gratification only in circumstances
where the person is “undressed or engaged in a private act where they may reasonably
expect privacy and does not consent to filming”30. However, this provision doesn‟t
necessarily respond to the practice of collecting photographs for the purpose of placing
them on websites specifically set up to cater for the interests of predators and
paedophiles.

In New South Wales, the Crimes Act (NSW) 1900 does prohibit the production,
dissemination or possession of child pornography31, however children who are filmed in
contexts that are not sexual, such as sporting events or at play may not be protected by
this provision.

While the Crimes Act (NSW) 1900 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, the absence of requisite evidence to demonstrate this intention32causes
this provision in its current form to be ineffective in responding to the circulation of
photographs of young people on internet sites without consent. This provision was
clearly not designed to protect children and young people from exploitation while at play.


26
   Ombudsman Annual Report- 2006/07 p117
27
   NSW Child Exploitation Internet Unit ,Child Protection Sex Crimes Squad – NSW Police Service
28
   Privacy Commission     “Unauthorised Photographs on the Internet and Ancillary Privacy Issues”
                          Discussion Paper, November 2005 p.1
29
   ibid
30
   s 21 G Summary Offences (NSW) Act 1988
31
   s 91 H Crimes Act (NSW) 1900
32
   s 562 AB Crimes Act (NSW) 1900
                                                  - 14 -
Fortunately, in 2005 the Commonwealth Criminal Code was amended to include an
offence of intentionally using a carriage service (ie the internet) in a way that may be
regarded as being “menacing, harassing or offensive”.33 This may be regarded as a step
in responding to this complex issue but in itself, is an incomplete response. The
unauthorized use of photographs of children is an area of concern that requires
amendment to the criminal laws applying to each state of Australia. The amendment of
national privacy principles to reflect current concerns in the light of current technological
change is also appropriate in view of the concerns outlined above.

Whilst privacy legislation has existed for several decades in Australia and its application
was extended in 2000 to cover private enterprise, this legislation was not originally
drafted with the view that it would apply to protect children from being exploited from the
unauthorized circulation of photographs of young people on internet sites without their
consent. National legislation that specifically aims to address the exploitation of children
and young people through electronic media would appear to be a more appropriate
response to this emerging concern rather than the proposed amendment of legislation
that was originally drafted to establish standards in respect of the information-handling
processes in trade and commercial contexts.


      3. Employment Law Issues in Child Protection

Duty of Care Owed to Employees
Whilst an employer owes a duty of care to safeguard the wellbeing of their staff,
particularly under current occupational health and safety legislation, Sullivan v Moody34
made it clear that 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 of secondary
concern:

In this case it was stated that:
“…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….” 35

This view was reinforced in the State of New South Wales v Paige 36. In this appeal of
the District Court it was found that the New South Wales Department of Education and
Training 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
(NSW)1980 had resulted in him suffering from psychiatric harm.



33
     Privacy Commission   “Unauthorised Photographs on the Internet and Ancillary Privacy Issues”
                          Discussion Paper, November 2005 p.6
34
   Sullivan v Moody [2001] 75 ALJR 1570
35
   ibid
36
   NSW v Paige 2002 NSW CA 235
                                                      - 15 -
 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..”37

Whilst in some jurisdictions, actions for breach of contract on the basis of unfair or
inadequate policies and procedures remains an avenue for dissatisfied employees who
have been the subject of investigations of allegations of reportable conduct or
inappropriate professional conduct, this case affirms the view that the primary
responsibility of the child-related workplace relates to the duty that is owed to the
children in its care not its staff. This view was reinforced by detailed reference to other
similar cases in the United Kingdom38.

The case NSW v Lepore; Samin v Qld; Rich v Qld extended the duty owed by schools
by saying that “…their responsibility extends to protecting children and young people
from the wrongful behaviour of third parties even if that behaviour is criminal.” 39
This indicates that victims and their families in some circumstances are entitled to
pursue civil claims against a school if a third party commits a criminal offence against a
child in their care.

It is well established that a person injured in circumstances where it is alleged that the
organization has been negligent by its conduct or omission, has civil remedies available
to them. However, the case under consideration deals with an alternative situation where
the actions of the teacher are deliberate and abhorrent to the values and policies of that
organization. Lepore reinforces the position adopted in other common law countries, that
individuals damaged by an employee of an organization in whose care they are placed
affords them the right to a cause of action.

The High Court concludes that recent decisions particularly the Supreme Court of
Canada case Bazley v Curry40 and that of the House of Lords in Lister v Hesley Hall41,
impact significantly on the expectations that western societies (including Australians)
impose on the protection of vulnerable groups in our communities:

        “…it has been the law in this country at least since this Court's decision in
       Introvigne[189] that an education authority is legally liable for the wrongs and
       neglects of those that it employs to carry out its duty to take reasonable care of its
       pupils. The doctrine of non-delegable duty no doubt makes the position of education
       authorities difficult. But they are not totally helpless to prevent teachers from
       assaulting or sexually assaulting pupils. Education authorities can:

                   . institute systems that will weed out or give early warning signs of
                   potential offenders;


37
     ibid
38
      Johnson v Unisys [2001] 2WLR 1076 and Heptonstall v Gaskin [2004] BSWSC 80 (26 March 2004)
39
   NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4 (6 Feb 2003)
40
   Bazley v Curry [1999] 2 SCR 534
41
   Lister v Hesley Hall [2002] 1 AC 215
                                                     - 16 -
                   . deter misconduct by having classes inspected without warning;

                   . prohibit teachers from seeing a pupil without the presence of another
                   teacher, particularly during recesses;

                   . encourage teachers and pupils to complain to the school authorities and
                   parents about any signs of aberrant or unusual behaviour on the part of a
                   teacher.

       No doubt there are other methods open to education authorities to combat the
       problem of teachers who, for their own gratification, use their power and position to
       exploit children. Given the nature of the offences, no system is likely to eliminate the
       abuse or sexual abuse of school children….. But whether or not there are any
       reasonably practicable methods by which education authorities can eliminate or
       reduce the incidence of abuse, long established legal principle and this Court's
       decisions require that they carry the legal responsibility for any abuse that occurs.”42

In this case the main issue under consideration was whether, in circumstances where
there has been no allegation that the school authority was at fault in terms of it systems
and procedures, appointment or supervision of staff, complaint management or any
other specific management matter, the acts of the teacher make the organization liable
for the injury sustained as a result of the criminal conduct of the individual employee.

The liability of the organization in circumstances where there has been intentional
wrong-doing that is in no way authorized by the employer or consistent with any code of
conduct or policy is clearly not restricted to the care of children in school settings, but
relates to other circumstances where a vulnerable person is injured by the criminal or
other inappropriate acts of an employee of that organization. Therefore the management
of risk in organizations including sporting associations, child care centres, church
ministries, aged care and residential care facilities, prisons, hospitals and the like is a
matter that requires significant investment and consideration particularly in the areas
relating to:

          the recruitment, induction, supervision and management of employees;
          the development, enforcement and regular review of policies and procedures that
           aim to keep children and other vulnerable groups safe;
          the operation of appropriate complaint handling processes;
          the implementation of practical risk assessment and risk management
           frameworks and processes
          the presentation of effective professional development for those working with
           vulnerable groups particularly on matters relating to managing challenging
           behaviours, appropriate responses to conflict situations, professional boundaries,
           identification of risk of harm, complaint management and existing support
           structures and services;




42
     NSW v Lepore; Samin v Qld; Rich v Qld [2003] HCA 4 164 (6 Feb 2003)
                                                  - 17 -
   4. Conclusion
Australia‟s legislative response to the changing local and international standards in
relation to the protection of children has significantly impacted on the way organizations
deliver services to children in this country. The practical effect of this is that substantial
progress has been made to cause the establishment of more sound and effective
systems and structures in child-related workplaces, thereby creating safer and more
positive environments for children. However the implementation of legislation to address
child safety is a complex process that requires continuing community education,
considerable funding, quite specific expertise and a shared philosophical perspective
that is held by the many stakeholders involved.

While the current legislative structures seek to ensure the protection of children
throughout Australia there are number of limitations that impede the effectiveness of the
current regime. The lack of a uniform national approach to employment screening
compromises the effectiveness of this important recruitment tool. This is particularly
highlighted when considering the difficulties associated with monitoring the many
volunteer associations that provide services for children outside formalized structures or
institutions.

The lack of a national approach or agreement on standards and definitions causes basic
anomalies to exist between the interpretation and action adopted by each state and
territory in matters pertaining to child protection. The complexity caused by jurisdictional
difference between the states creates abundant opportunity for misunderstanding and
confusion. Such difference also encourages predators to make strategic decisions about
jurisdictions that are less likely to preclude them from engaging in child-related
employment.

Resource constraints that impede the capacity of agencies to competently cope with the
practical implementation of legislation in remote geographical locations, in complex
cultural settings, and in environments where power bases are threatened, limit the
effectiveness of Australia‟s legislative response to the objective of keeping its children
safe. The challenge presented by the broad use of new technologies, particularly those
related to electronic media, calls for the regular review of current legislation in terms of
relevance and scope.

Current child protection legislation challenges child-related organizations to ensure that
education and training in this area is available for their staff. In order to avoid risk and to
be compliant with current legislation, ideally staff working with children will be required to
have developed a sound grasp of concepts including indicators of risk of harm,
appropriate use of the internet, professional boundaries, risk management practices and
grooming. As indicated in recent case law, our community currently sets high standards
in terms of the level of understanding of these concepts thereby imposing significant
demands on these organizations.

Despite these limitations, the development of child protection legislation in Australia,
particularly over the last decade, has enhanced community awareness, generally
improved the performance of government agencies charged with the challenge of
responding to those children at risk of harm and introduced appropriate systems and
structures to many organizations that deliver services to children. Whilst the challenges
                                             - 18 -
facing these organizations are substantial, their investment in professional education,
policy development and risk management is effectively fulfilling the important
fundamental objective of encouraging children and young people to embrace their world
with confidence and in the absence of fear.

                                          - 19 -
References:

               31st New South Wales Ombudsman Annual Report
               25 October 2006

               Unauthorised Photographs on the Internet and
               Ancillary Privacy Issues: Discussion Paper

               Submission to the Standing Committee of Attorneys-
               General by the Office of the Privacy Commissioner
               November 2005


Bromfield, L   A National Approach to Child Protection: How Close
Higgins, D     Are We?
               National Audit of Australian Child Protection Research
               Australian Institute of Family Studies 2005


Bromfield, L   National Comparison of Child Protection Systems
Higgins, D     Child Abuse Prevention Issues, 22 2005
               www.aifs.au/nch/issues


Beyer, L       Understanding Organisational Risk Factors for Child
Higgins, D     Maltreatment: A Review of Literature
Bromfield, L   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
               [www.aarc.edu.au/02pap/mcc02344]




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