Boards and committee members of child-related organisations in NSW must prioritise the wellbeing and safety of children within their care. The NSW Child Safe Scheme, which is now enshrined under Children's Guardian Act 2019 (NSW) pt 3A, provides that organisations must implement the Child Safe Standards through their systems, policies and processes. Further, Civil Liability Act 2002 (NSW) pt 1B now reverses the onus of proof in negligence claims against organisations for child abuse. An organisation is presumed to have breached its duty of care to prevent abuse if child abuse occurs, and it is up to the organisation to prove it took all reasonable precautions to prevent the abuse.

It is therefore imperative that boards and committee members ensure that their organisation's governance frameworks, policies and oversight measures foster an organisational culture that places child safety at the forefront. Failure to adequately do so not only compromises the safety and welfare of children, but also exposes organisations to significant consequences, including legal liability, financial penalties, reputational damage and insurance risks.

On 15 December 2017, the Royal Commission into Institutional Responses to Child Sexual Abuse delivered its final report, recommending the adoption of 10 Child Safe Standards across all organisations working with children. The NSW Child Safe Scheme has been built on these standards to ensure that the best interests of children are of utmost importance.

The Office of the Children's Guardian (OCG) is responsible for overseeing the NSW Child Safe Scheme to ensure that all child-related organisations implement and comply with the Child Safe Standards. To perform its functions, the OCG has the power to:

• request information about an organisation's child safe systems, policies and processes;

• conduct inspections at the operational premises of organisations;

• direct organisations to complete the OCG's Child Safe Self-Assessment; and

• review an organisation's response to the OCG's recommendations to improve their child safe systems, policies and processes.

Following an investigation, the OCG may take enforceable action to ensure organisations comply with the Child Safe Standards. This can include issuing compliance notices or enforceable undertakings, both of which are publicly available on the OCG's website. If an organisation fails to comply, the OCG has the authority to issue fines. 

• Add 'Child Safety' as a standing agenda item in all board and executive meetings. This will ensure that organisations are routinely discussing child safety, encouraging open dialogue and allowing for prompt responses to any emerging risks and concerns.

• Create a specialised Child Safeguarding Committee or a nominated child safe position to oversee the organisation's approach to keeping children safe from harm. Individuals with prior professional or lived experience in the child safety space, or with relevant qualifications, would be well positioned to provide advice on best practice approaches to child safety.

• Develop and embed child safe policies and procedures. These should be comprehensive, clear, publicly accessible, and regularly reviewed and updated. The OCG provides a sample template pack of child safe policies that organisations can utilise to identify gaps in existing policies. However, these should only be treated as a starting point and must be carefully tailored to the organisation. Key policy and procedure documents include:

  • Statement of Commitment to Child Safety.

  • Child Safe Policy.

  • Child Safe Code of Conduct.

  • Child Safe Reporting Policy.

  • Child Safe Recruitment, Induction and Training Policy.

  • Child Safe Risk Management Plan.

• Develop a robust risk management approach towards child safety. This will ensure that appropriate action is taken to address any risks or incidents of child harm or abuse. It is also important to account for all environments where staff or volunteers interact with children, including at events, special activities or overnight camps.

• Foster a culture of child safety at all levels of the organisation. It is crucial that all staff and volunteers understand that child safety is everyone's responsibility. This can be facilitated by promoting a child safe culture within the organisation, such as by recognising individuals who demonstrate child safe practices.

• Monitor compliance with legal requirements related to child safety. This includes Working with Children Check verification requirements, probity checks, reference checks, mandatory reporting and reportable conduct obligations.  

For guidance and support in adopting these recommendations, please contact our Institutional Risk & Liability team.