In brief - Following recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse in its Final Report, the State Government of NSW has streamlined the mandatory reporting and reportable conduct schemes, in legislation coming into effect on 1 March 2020
These changes impact a range of organisations, and we address here the impact on religious bodies within NSW.
The Children’s Guardian Act 2019 (the Act) expands the functions and responsibilities of the Office of the Children’s Guardian (Children's Guardian) to include responsibility for the reportable conduct scheme, currently managed by the Ombudsman's Office (the Expanded Scheme). Importantly, it also clarifies that the reportable conduct scheme includes the religious and faith-based sector.
The Act requires relevant entities, including religious bodies, to have systems in place for reportable conduct from 1 March 2020.
The Act also amends the Children and Young Persons (Care and Protection) Act 1998 (Care and Protection Act) and other legislative instruments such as the Adoption Act 2000 to further increase the safety, care and protection of children and young people.
Recommendations of the Royal Commission
On 14 December 2017, the Royal Commission released its Final Report, a culmination of an epic five year journey, the effects of which are still felt today.
The Royal Commission recommended, amongst other things:
- the introduction of a nationally consistent reportable conduct scheme based on the NSW scheme, that obliges heads of entities to notify of any reportable allegation, conduct or conviction involving any institution's employees [Recommendation 7.9], and
- religious workers be required to be mandatory reporters [Recommendation 7.3(e)]
In its 2018 Annual Report on Progress in response to the Final Report, the NSW Government highlighted that 2019 would see the introduction of legislative change based on the Royal Commission's key recommendations. The Act is one such change.
Key changes introduced by the Children's Guardian Act
The Act was passed by the Legislative Assembly on 18 September 2019 without amendment, and introduced into the Legislative Council the same day. The Act passed the Legislative Council on 21 November 2019 and received Royal Assent on 4 December 2019. The operative provisions of the Act commence on 1 March 2020.
Key changes are:
- Transfer of responsibility for oversight of the reportable conduct scheme to the Children's Guardian: currently, the Working With Children Check (WWCC) regime is managed by the Children's Guardian and the reportable conduct scheme by the Ombudsman's Office, under the Ombudsman Act 1974 (NSW). From 1 March 2020, both aspects of the Expanded Scheme will be administered by the Children's Guardian.
- Expanded definition of reportable conduct: The Act clarifies and expands the scope of what is classified as potential reportable conduct by clarifying terms such as sexual misconduct, classifying grooming as a sexual offence, and removing crossing professional boundaries as a sexual offence. Additionally, systems, including processes and policies, to ensure the prevention and identification of reportable conduct and Codes of Conduct may be audited by the Children's Guardian
- Expanded Mandatory Reporting Requirements - People in Religious Ministry: There was previously a question mark over whether and to what extent religious institutions and their people were subject to mandatory reporting requirements. Mandatory reporters must report any suspicion they have that a child or young person has experienced, or is experiencing, neglect or abuse, to the head of their entity.
This has been placed beyond doubt: they are now included.
The definition of a "mandatory reporter" now includes people in religious ministry, or people providing religion-based activities to children, to act as mandatory reporters.
Section 27(1)(c) of the Care and Protection Act defines a person in religious ministry, or persons providing religion-based activities to children broadly as including both clergy (e.g. minister of religion, priest, deacon, pastor, rabbi, Salvation Army officer) and appointed (voluntary) leadership roles (e.g. church elder, religious brother or sister).
- Enhanced Reporter Protections: the protections currently available for mandatory reporters will be strengthened by providing protection against retribution and an enhanced protection, which now covers all forms of civil and criminal liability, where a report of child sexual abuse is made in good faith.
- Reportable Conduct - Expanded Scheme: According to Mr Gareth Ward, Minister for Families, Communities and Disability Services, any "person in a religious body who holds or is required to hold a Working With Children Check for the purposes of their engagement will come within the [Expanded] scheme's scope. "
New powers under the Expanded Scheme include:
- requiring entities to have a code of conduct and policies in place to prevent and detect reportable conduct by employees
- clarifying the ambiguity surrounding contractors and sub-contractors. The Expanded Scheme extends to any contractor or sub-contractor who is required to hold, or holds a WWCC, for the purposes of their work for an institution. In practice, this means that the head of a religious body will be responsible for notifying and investigating reportable conduct that is alleged to be committed by contractors or sub-contractors, in or outside of the workplace
- granting new powers allowing the Children's Guardian to investigate and conduct inquiries into reports about allegations of child abuse by employees who are required to hold a WWCC, and
- requiring reports, investigations and determinations about reportable convictions.
As a result, and significantly for religious bodies, from 1 March 2020, the Expanded Scheme imposes a new obligation on the employees of relevant entities. Once an employee is aware of a reportable allegation or reportable conviction of another employee (including contractors, sub-contractors and volunteers) they must report the allegation or conviction to the head of the entity (or to the Children’s Guardian if it relates to the head).
Section 19 of the Act defines a person with a reportable conviction, or person of concern, as someone with "a conviction, including a finding of guilt without the court proceeding to a conviction, in this State or elsewhere, of an offence involving reportable conduct". Reportable conduct is defined at section 20 of the Act as "conduct, whether or not a criminal proceeding in relation to the conduct has been commenced or concluded."
Under section 31(4) of the Act, if the matter is being investigated by another relevant entity such as the Director of Public Prosecutions or the Commissioner of Police, the Children’s Guardian may exempt it from further investigation.
What the Children's Guardian Act and amendments mean for religious institutions in NSW
The definition of "mandatory reporter" has now been expanded to include people in religious ministry, which includes clergy, paid employees, third-party contractors and appointed voluntary leaders, a significant extension.
Religious institutions will need to update and/or develop child protection and reporting frameworks, policies and procedures, to ensure that they meet the necessary requirements. An implementation plan, including education and training, should be developed to ensure compliance at the institutional and individual level.
Religious bodies need to make sure they have systems in place that include:
- a code of conduct, and
- policies, including:
- child protection policies that address detection/identification, prevention, and reporting of reportable allegations, conduct and convictions (including by other employees),
- dealing with reportable allegations, conduct and conviction handling systems (inclusive of procedural fairness requirements),
- whistleblowing: it is now a criminal offence, punishable by significant fines or imprisonment, for an employer to threaten or carry out detrimental action due to an employee making a reportable conduct complaint, notification or report, and
- recordkeeping and information management handling policies and procedures,
- training on those codes and policies
Next steps for religious institutions
The Royal Commission identified the importance of strong children protection policies and of institutional reviews. The important reportable conduct scheme now definitively extends to religious institutions.
It is critical that religious institutions prepare between now and 1 March 2020, including by reviewing (or if necessary implementing) their policies and procedures to ensure compliance with the Children's Guardian's required systems. Having policies and, as importantly, ensuring awareness and training, will be key.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.