NSW Child Safe Legislation Framework

The NSW Government has recently undertaken consultation on the proposed Children’s Guardian Amendment (Child Safe Scheme) Bill 2021 (NSW).

The object of this Bill is to embed the National Child Safe Standards, as recommended by the Royal Commission into Institutional Responses to Child Sexual Abuse, as the primary framework that guides child safe practice in organisations in New South Wales.

We welcomed the objectives of the Bill and the adoption of the Child Safe Standards as the primary framework guiding child safe practices.   As we pointed out in our submission we have long advocated for the highest standards in this area and greater national consistency.  Our submission also addressed a number of more technical concerns about the Bill.

Of greatest concern is the provision, as part of the ‘Capability Building’ functions the Bill create for the Children’s Guardian, in the proposed section 8EA which allows for the development of guidelines to assist child safe organisations to implement the Child Safe Standards.  Adoption of these guidelines may be used as ‘evidence of appropriate practice’ in accordance with proposed sub-section 8EA (4). This is not an uncommon provision, despite the potential conflicts created by a regulatory body also having educative functions.  It also begs the question of the outcome of not complying with these guidelines, in particular given the requirement in proposed sub-section 8BA(2)(c) that the ‘systems, policies and processes’ adopted by child safe organisations must ‘reflect’ those guidelines.

This question is brought into sharp focus as a result of the publication on 21 August last year of ‘Implementing the Child Safe Standards: A Guide for Faith-Based Organisations’ by the Office of the Children’s Guardian.  While this document may not have the status of the guidelines proposed under the Bill it does suggest an approach which could be followed in this area.  The discussion of ‘Standard 4: Equity is upheld and diverse needs are taken into account’ goes well beyond the recommendation by the Royal Commission that institutions pay ‘particular attention to the needs of Aboriginal and Torres Strait Islander children, children with disability, and children from culturally and linguistically diverse backgrounds’.  On some readings it seeks to impose on faith-based groups a particular, and controversial and contested, view of sexuality and gender.  Despite the inclusion of references to a number of faith based groups in the document we understand from discussions with a number of those groups that there was little, if any, consultation on this document with them.

We understand that the Royal Commission, in proposing the Child Safe Standards, including Standard 4 was concerned with sexual abuse and means of preventing such abuse. In this context it recognised that children who are vulnerable for the range of reasons identified in its recommendation are more likely to become victims of child sexual abuse.  We can see no basis for extending this Standard beyond its intended scope and schools would be very concerned if the Standards became a means by which quality care from a faith-based perspective was compromised.  Accordingly  we have  recommend that guidelines be limited to areas within the scope of the Royal Commission recommendation and be consistent with those recommendations.

We will continue to follow up these concerns with the Office of Children’s Guardian.

A copy of our submission is available below.