Children Legislation Amendment (Reportable Conduct) Bill 2016

2017-02-23

I would like to confirm that the Greens will be supporting this bill. The Greens strongly support the intention behind the Children Legislation Amendment (Reportable Conduct) Bill 2016. We have argued strongly for many years now that the recommendations of the Betrayal of Trust report and the Cummins report must be implemented in full and as soon as possible. We support independent oversight of investigations into misconduct within any organisation that works with children. We certainly support the strengthening of internal systems for identifying and reporting child abuse and misconduct in all organisations that work with children. We also support the establishment of the Commission for Children and Young People to undertake this important work, as it is their remit. I am aware that the government has worked with the commission in developing the framework for the scheme and consulted with the commission on the development of the bill. That cooperative work is an important first step in ensuring the successful implementation of the reportable conduct scheme and ultimately in improving protections for children and recourse to justice.

Child safe standards were an important step in the right direction. We would like to recognise the huge amount of work undertaken to date by the commission in this area. The reportable conduct scheme builds on this work by directly addressing the issue of accountability at last. The Greens have been advocating for increased accountability for organisations for a long time. It is critical that the government get this right. The Greens have concerns around the overall coherence of the mandatory reporting regime, the scope of this scheme in the context of that regime, information sharing and data and the effective resourcing of the scheme, and I will address these in turn.

As we have heard from the government, the bill will substantially implement recommendation 18.1 of the Betrayal of Trust report and a key component of recommendation 10.1 of the same report. It is worth spending a bit of time unpacking how the bill will implement these recommendations and how it addresses the challenges that informed these recommendations. Recommendation 18.1 proposed:

That the Victorian government authorise an independent statutory body with relevant investigatory powers and legal and operational resources to:

  • oversee and monitor the handling of allegations of child abuse by relevant government departments, religious and non‑government organisations;
  • undertake independent investigations into systems and processes in the context of allegations of reportable conduct and/or reportable convictions;
  • scrutinise and audit the systems and processes in non‑government organisations for handling allegations of child abuse;
  • monitor and report on trends associated with allegations by collecting relevant data and report to the Parliament on an annual basis;
  • build the skill and knowledge of personnel in relevant government departments, religious and non‑government organisations to ensure they have the capacity to competently handle allegations of suspected child abuse.

This bill quite clearly gives effect to substantial components of this recommendation. We are concerned that the monitoring and reporting requirements contained in the bill do not meet the standards set out in recommendation 18.1, and I will return to this issue later.

Recommendation 10.1 of the Betrayal of Trust report related to working with children checks. There were four components to this recommendation. This bill addresses one of those components, ensuring that all relevant non-government organisations are required to report any allegations of misconduct relating to children to the Victorian justice department's working with children unit. Of course this bill provides for allegations to be provided to the commission rather than the department, but provisions for information sharing within the bill are designed to ensure that these reports reach a number of relevant stakeholders, including and importantly, the working with children unit.

An important issue that has not been addressed is how the reportable conduct scheme sits within the wider regime of reporting in support of child protection. This scheme overlaps with a number of existing reporting obligations. The fact that some professions will now be subject to a number of reporting requirements is not a problem within itself; it is, however, important to ensure a level of consistency across those obligations and to reduce potential confusion amongst entities and individuals covered by these mechanisms. Once this bill comes into effect certain entities and heads of entities will be covered by the following: failure to disclose a sexual offence committed against a child under the age of 16 years, under the Crimes Act 1958; the mandatory reporting scheme under the Children, Youth and Families Act 2005; and the reportable conduct scheme under the Child Wellbeing and Safety Act 2005. Each of these schemes requires reporting of allegations to Victoria Police, the commission, the Department of Health and Human Services or a combination of these organisations. In addition the types of conduct or offence covered under each scheme varies.

There is clearly potential here for confusion. Part of this can be addressed through training, provision of guidance and resources tailored to the specific requirements of organisations covered by this scheme and by other reporting schemes. Given the complexity of this regime, we are expecting a lot of individuals and organisations to be covered by multiple reporting requirements. As I said, this is not a problem per se, and we should have the highest expectations where the safety and security of children are concerned, but the outcome of this regime must be better protection and support for children, and in achieving that we need to ensure that substantial attention is paid to particular groups of professions that are covered by multiple reporting requirements.

On that note, it would be good if the minister could answer some questions in her summing-up speech, and one of them is if she could tell us whether any analysis has been undertaken to understand which organisations or groups of professionals will be covered by multiple schemes and what the likely impact of additional reporting requirements is. Will bespoke training and resources be developed for these groups in order to ensure that these groups are well equipped to comply with the regime as a whole?

On the issue of other instruments, I wanted to raise some issues related to legislative consistency and the inclusion of family violence within the mandatory reporting regime. Previous research on what types of offences against children are included in reporting schemes across Australia has shown Victoria to lag behind other states. We have lagged behind in relation to the range of organisations subject to reporting schemes and also in relation to the types of behaviour and offences that must be reported. The bill in its current form brings us into line with other states in requiring a much wider range of organisations working with children to develop internal procedures for identifying and reporting reportable conduct.

We are pleased to see that the definition of reportable conduct is broad and that it includes psychological and emotional abuse. The Greens have argued strongly — and this argument is based on very sound evidence — that these forms of abuse have lasting and extremely damaging impacts on children. Within that broad definition of reportable conduct any incidence of family violence committed or suspected to have been committed by an employee of an entity should be reported to the commission under this scheme. To be clear, heads of entities are required to report on conduct:

 … whether or not the conduct or misconduct is alleged to have occurred within the course of the person's employment …

The definition of reportable conduct itself covers a range of behaviours and abuses committed against or in the presence of a child — that is, any child. But it is not explicitly included, so rather than me making assumptions, perhaps the minister could confirm whether this scheme intends to capture family violence where committed by an employee or whether its implicit inclusion has happened by accident.

In speaking on the child safe standards prior to their introduction, I highlighted serious concerns about the inadequacy of data collected by the department. We are talking about basic data that is crucial to both understanding the scale of the problem in relation to child safety and to addressing barriers to this. We are therefore pleased to see that this issue has received at least some attention in the reportable conduct bill, but we are concerned that it does not go far enough.

The bill empowers the commission:

 … to report to the Minister and to Parliament on trends in the reporting and investigation of reportable allegations and the results of those investigations …

Recommendation 18.1 of the Betrayal of Trust report went a little further than this, recommending an independent statutory body:

 … monitor and report on trends associated with allegations by collecting relevant data and report to the Parliament on an annual basis …

The bill is not clear on exactly what kind of data should be collected and reported on, and no regular time frame for reporting is included. Perhaps the minister could explain why specific data requirements are not included beyond reporting on trends and why this has focused only on reporting and investigation. Would it not also be important to know rates of compliance and the incidence of full compliance with all reporting schemes, for example? Would it not be important to understand which organisations and professionals are subject to multiple reporting requirements and how this impacts on compliance? Would it not also be important to collect data on the types of conduct that are reported and in what circumstances? These are a few examples, but given the department's poor track record in collecting important data that can inform how we address complex challenges in child protection, I think it is vital that we are clear on how we are tracking this scheme and what data the department should be collecting from the outset.

We are also concerned that mechanisms for information sharing do not cause any unintended harm or consequences. Proposed section 16ZB provides for disclosure of information by the commission to a range of people. In family violence and child protection matters it is frequently one or both of the child's parents who pose risks to the child. The Greens are proposing an amendment to this section so that where the parent or carer is suspected of having committed reportable conduct, any disclosure of information about the investigation must be based on a risk assessment undertaken by the commission, with the aim of preventing further risk to the child.

As I highlighted earlier, situations of family violence where the perpetrator is both a parent or carer and an employee must be reported under this scheme, and this amendment aims to minimise potential for further damage to children that could be caused by the reporting process itself. These circumstances are treated as a serious risk requiring specific practices in New South Wales, where a 42-page guidance document has been developed on managing allegations of reportable conduct against authorised carers.

The reportable conduct scheme certainly looks good on paper, and in speaking to a range of groups and individuals working in child protection, there seems to be a significant amount of support for this scheme. But as always, the devil will be in the detail. There are several issues worth raising at this point that will be crucial to the scheme's effective functioning.

The proposed scheme represents a significant undertaking for the Commission for Children and Young People. The commission is currently in the process of rolling out child safe standards across the state, which represents another huge job. The two schemes are certainly closely related and in many ways complementary. Indeed in many respects the reportable conduct scheme is an extension of the commission's work on child safe standards. But in conceptualising these two areas of work as part of a whole it is vital that planning and resourcing take into account the scale and distinct challenges of these two jobs. It is one thing to look at the technical components of the scheme and to look at capacity in relation to compliance and enforcement. The Greens strongly advocate an approach that focuses on real outcomes in terms of safer environments for kids and the development of norms around reporting misconduct, and I would like to think that this approach is shared by all of us here.

We therefore need to look at the magnitude of work involved in implementing child safe standards and the reportable conduct scheme and to ensure that the commission is adequately resourced and equipped to undertake this job from day one. On this issue, can the minister assure this chamber that plans are now in place to ensure that the commission has access to the funding it will need to implement the reportable conduct scheme from the day that it comes into force? And can the minister also provide an assurance that adequate funding has been budgeted for the ongoing effective running of the scheme?

As I mentioned earlier, the Greens support phased implementation as set out by the bill. Category 1 organisations will be covered by this scheme from the day the bill comes into effect, with second and third groups of organisations coming online at later dates. In dealing with the challenges I have already outlined, we think that a phased approach to implementation is both sensible and necessary. In theory this should enable smaller organisations to benefit from the development of systems and resources by both the commission and a whole range of larger organisations working with children, particularly those with strong existing procedures in place.

We know that a significant number of organisations are likely to struggle with compliance due to limited capacity. They are going to rely particularly heavily on the commission for information and resources in order to be compliant. Some organisations may even question the need for them to be covered by this legislation, which adds to the commission's work an element of education aimed at cultural and behavioural change. There is good evidence to show that where reporters are not sufficiently trained and educated, rates of unnecessary reporting increase, as do rates of failure to report allegations that should be reported. Research with teachers has shown that where they have received adequate training in recognising abuse and where their levels of confidence in recognising abuse are high, their reporting is much more effective. Research with nurses has shown that positive attitudes towards their reporting duties have influenced more effective reporting. Despite these findings, numerous studies — including some undertaken in Australia — have found that professionals who are required to report abuse and neglect often lack the training and support required to fulfil this role. Of course this is an issue that the reportable conduct scheme seeks to directly address.

The commission clearly has its work cut out for it in that respect. It is vitally important that the government remain responsive to the commission in addressing these challenges as the scheme develops. I would also argue that it is vitally important that good data is collected and analysed to assist in understanding where the scheme is performing as intended and any potential problems.

I have covered the key areas of concern to the Greens, but there are a number of outstanding questions that I have not posed and which I will outline now in the hope that the minister can answer them in her final sum up.

The first is that 'employee' is defined broadly to include a person who is employed or engaged by the entity. Will this include contractors of the entity, and what about subcontractors of a contractor of the entity? For jurisdictional reasons the entities to which this scheme will apply include those which receive state funding. There are a number of service providers who receive funding from state, federal and local governments as well as from private sources, and we query how this scheme will operate in a practical sense for those entities. Finally, we would also like to query how new section 16R, which empowers the commission to interview a child, is proposed to operate when a child is the alleged perpetrator of the reportable conduct.

In summary, the Greens support this bill and commend the work undertaken to date to develop the scheme. We would, however, strongly urge members to consider the Greens' amendments when they are circulated. They are aimed at strengthening protection for particularly vulnerable children.