Changes to child safe legislation in NSW: what you need to know

The Children’s Guardian Amendment (Child Safe Scheme) Bill 2021 has just been passed in NSW Parliament. This new Bill amends the Children’s Guardian Act to embed the NSW Child Safe Standards as the primary framework guiding child safe practices in NSW.

This Bill is an amendment of an earlier Exposure Draft, released in 2020. A breakdown of the key changes from the the original Exposure Draft, can be found in the Consultation Summary.

Who is a child safe organisation?

So, who is a child safe organisation for the purposes of this legislation? Well, this new Bill features an updated definition of child safe organisation‘, which now covers the following: 

  • entities mentioned in Schedule 1 of the Children’s Guardian Act (excluding designated agencies and adoption service providers),
  • religious bodies that provide services to children, or in which adults have contact with children,
  • local government authorities, and
  • clubs or other bodies providing recreational or sporting programs or services to children, and in which workers are required to hold a working with children check clearance.
Notably, religious bodies and sport and recreation organisations are new groups on this list. The Office of the Children’s Guardian (OCG) has acknowledged that there are still some organisations who work with children who are not included in this list. While some organisations are not currently in scope, the Child Safe Standards can be implemented by all child-related organisations and will remain voluntary for organisations outside scope.

It’s important to note that designated agencies and statutory out-of-home care and/or adoption services have been specifically excluded from the Child Safe Scheme. This is because they are already subject to regulation by the OCG under the Child Safe Standards for Permanent Care (currently under review).

Special responsibilities and liabilities are held by the ‘head of a child safe organisation’. The Bill defines ‘head of a child safe organisation’ as:

  • the person or class of persons prescribed by the regulations, if the regulations prescribe such a person,

otherwise

  • the chief executive officer of the organisation, however described,
  • if there is no chief executive officer—the principal officer of the organisation, however described, or
  • if there is no chief executive officer or principal officer—a person who has been nominated by the organisation and approved by the Children’s Guardian under the Children’s Guardian Act (s66).

What do child safe organisations have to do?

The ‘head of a child safe organisation’ must implement the Child Safe Standards through systems, policies and processes including the following:

  • a statement of the organisation’s commitment to child safety,
  • a child safe policy,
  • a code of conduct that applies to employees, management, contractors and volunteers,
  • a complaint management policy and procedure,
  • a human resources policy, and
  • a risk management plan.

The head of a child safe organisation must ensure the organisation implements a reportable conduct policy.

Additionally, the head of a child safe organisation is responsible for ensuring systems, policies and processes are continuously reviewed and updated to reflect any changes to the Child Safe Standards.

It is clear that organisations must be aware of who their ‘head’ is, as responsibility for implementation and monitoring of the Child Safe Standards lies with them. 

Monitoring and investigation

The Bill provides the Children’s Guardian with powers to monitor the implementation of the Child Safe Standards. The Children’s Guardian may monitor any child safe organisation through the following measures:

  • review the organisation’s systems, processes and policies,
  • review information held by the Children’s Guardian about the organisation and its employees,
  • with the consent of the head of the organisation, have an authorised person inspect the organisation’s premises, and
  • direct the head of the organisation to complete a self-assessment of the organisation’s compliance with the Child Safe Standards (a mandatory direction).

The Children’s Guardian may, at any time (by written notice) require the head of a child safe organisation to provide information about the organisation’s systems, policies and processes.

If the organisation does not provide the requested information, the Children’s Guardian may commence an investigation , and publish the organisation’s details on the Office of the Children’s Guardian’s website.

The Bill also provides the Children’s Guardian with powers for the investigation of complaints and concerns about a child safe organisation’s implementation of the Child Safe Standards. The Children’s Guardian may commence an investigation if:

  • a complaint is received about an organisation,
  • the organisation fails to respond to a recommendation made by the Children’s Guardian in a monitoring assessment report, or
  • for any other reason, the Children’s Guardian is concerned the organisation is not implementing the Child Safe Standards.

When conducting an investigation, the Children’s Guardian may follow any of the same steps as described earlier in relation to monitoring. It may also conduct an inquiry.

At the end of an investigation, the Children’s Guardian will prepare a report for the organisations, which will include recommendations for improvements, and may include enforcement measures.

How will the Child Safe Standards be enforced?

The Bill provides for enforcement measures, which allow the Children’s Guardian to issue compliance notices and to enter into enforceable undertakings with child safe organisations.

A compliance notice will be in writing and will include:

  • reasons for the belief the organisation is not implementing the Child Safe Standards,
  • risks to children that arise as result of the non-compliance,
  • the action the organisation is required to take,
  • the period of time within which action must be taken, and
  • a statement that failure to comply with the notice is an offence.

There are also provisions for organisations to request an internal review or extension of time in relation to a compliance notice.

A list of compliance notices currently in effect will be made available on the OCG’s website.

There are penalties associated with failure to comply with a compliance notice – 250 penalty units for a corporation, and 50 penalty units for others.

Instead of issuing a compliance notice, the Children’s Guardian may accept an enforceable undertaking from a child safe organisation, which is an undertaking from the organisation under which the organisation agrees to take specific action by a specific date. A list of enforceable undertakings that are in effect will also be made available on the OCG’s website.

The OCG has expressed its intention to use a ‘light touch’ in its approach to regulation, focusing on education and building on organisations’ existing strengths. However, these enforcement measures will be exercised in some cases, where necessary to ensure the safety, welfare and wellbeing of children. 

Capability building

The Bill sets out the Children Guardian’s responsibility to work collaboratively with child safe organisations to build capacity for child safe practice.

These provisions indicate that the Children’s Guardian may develop further guidelines to assist organisations and the broader community to implement the Child Safe Standards. If any such guidelines are developed, they will be published on the OCG’s website, and may include templates that can be used by child safe organisations.

The Bill specifies that the Children’s Guardian may provide training on the implementation of the Child Safe Standards, and that it may charge fees to cover any reasonable costs of the training.

Additional changes

The Bill includes a requirement for prescribed agencies to develop a ‘child safe action plan’. This requirement will not apply to community-based organisations in NSW, as it is limited to significant public sector departments, offices and agencies.

The Bill also includes an information sharing provision, which allows the Children’s Guardian to share information with other States/Territories or the Commonwealth, where a matter has relevance to another jurisdiction.

Access the Child Safe Standards on SPP

Sign up for a free trial now to self-assess against the NSW Child Safe Standards in the SPP platform. 

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