In brief - On 1 July 2022 eleven (11) new Child Safe Standards (New Standards) will come into force due to amendments made to the Child Wellbeing and Safety Act 2005 (VIC), placing new mandatory safeguarding requirements on schools and other organisations working with children, replacing the existing seven (7) standards that commenced in January 2016.
The Royal Commission into Institutional Responses to Child Sexual Abuse, in its Final Report, recommended Child Safe Standards be implemented by institutions in order to act with the best interests of the child as a primary consideration.
In response, the Federal Government introduced 10 National Principles for Child Safe Organisations (National Principles) and the New South Wales Government implemented its 10 Child Safe Standards.
Victoria has had child safe standards in place for over six years. However, in June 2021, following a consultation period, legislative amendments were passed by the Victorian Parliament to strengthen the regulatory framework and align existing standards with the National Principles.
The key changes in the New Standards include requirements that:
- place greater focus on safety for Aboriginal children and young people (Standard 1)
- involve families and communities in organisations’ efforts to keep children and young people safe (Standard 4)
- manage the risk of child abuse in online environments (Standard 9)
- improve governance, systems and processes to keep children and young people safe.
A fact sheet released by the Victorian Commission for Children and Young People (CCYP) details the content of the New Standards.
Will the New Standards apply to my organisation?
The New Standards will apply to organisations that were covered under the previous standards. The categories of organisations covered are broad and set out in Schedules 1 and 2 of the Child Wellbeing and Safety Act 2005.
The organisations include:
- registered schools (government and non-government) and education providers;
- religious bodies;
- charities and not-for-profit organisations;
- out of home care services;
- health services;
- disability service providers;
- sporting clubs;
- youth organisations; and
- local councils.
Compliance with the new Child Safe Standards in Victoria
Ministerial Order 1359 was issued by the Victorian Minister for Education on 31 January 2022 and mandates all Victorian schools to embed a culture of 'no tolerance' for child abuse and comply with the New Standards. Compliance will be a registration requirement for all Victorian schools from 1 July 2022.
Whilst the New Standards are effective from 1 July 2022, amendments to the regulatory framework commence on 1 January 2023.
The CCYP has powers under the Child Wellbeing and Safety Act 2005 to request information from an organisation to determine compliance with the standards and take action for non-compliance which can include civil penalties and ‘naming and shaming’ organisations.
From 1 January 2023, the Victorian Registration and Qualifications Authority (VRQA) will have new powers to monitor and enforce non-government schools’ compliance with the Child Safe Standards, in addition to its existing powers to enforce compliance with Ministerial Order 1359. There are other authorities with compliance powers including the Quality Assessment and Regulation Division of the Department of Education and the Department of Families, Fairness and Housing (in respect of out-of-home care providers).
Relevant organisational policies, procedures, staff induction material and recruitment documents will need to be amended to take into account the content of the New Standards.
How might this impact liability?
Since July 2017, section 91 of the Wrongs Act 1958 (VIC) has imposed a duty of care on relevant organisations to take reasonable care to prevent the abuse of a child committed by an individual associated with the organisation. The provisions apply to organisations that exercise care, supervision or authority over a child and make clear that where an organisation has delegated its care for children to another organisation (such as a third party contractor on a school camp) that both organisations will be held responsible for the care of the child.
The reverse onus of proof requires organisations to be on the front foot when it comes to child protection. When it comes to considering factors that a court may take into account when determining whether an organisation has taken reasonable precautions to prevent abuse from occurring, this will inevitably include consideration of an organisation's compliance with the New Standards. If the organisation has not met the New Standards and abuse occurs, it will be found to have been negligent. Both organisations and insurers should be aware of this risk and ensure policies, procedures and practices adopt the New Standards.
- Victoria's New Standards come into effect on 1 July 2022.
- They apply to a broad range of organisations.
- Compliance is mandatory and enforceable by a number of regulatory bodies.
- The reverse onus of proof regarding the duty of care an organisation owed to a child will be judged by reference to the New Standards.
- Organisations should immediately review and update their policies, procedures and practices to ensure compliance with the New Standards from 1 July 2022.
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 2022.