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Institutional Responses to Child Sexual Abuse—Royal Commission—Australian Government Response


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Australian Government Response to the Royal Commission into Institutional Responses to Child Sexual Abuse

Australian Government Response

Australian Government Response

Australian Government Response to the Royal Commission into Institutional Responses to Child Sexual Abuse

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ISBN: 978-1-920838-46-1 (Print) ISBN: 978-1-920838-47-8 (Online)

© Commonwealth of Australia 2018

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iii

Contents

Australian Government Response v

Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report v

Part One: Final Report Response 1

Part Two: Working with Children Checks Report 68

Part Three: Criminal Justice Report 84

Part Four: Redress and Civil Litigation Report 126

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3763 Aust Govt Response_final report_04.indd 4 1/06/2018 2:37 PM

v

Australian Government Response

Royal Commission into Institutional Responses to Child Sexual Abuse: Final Report

The achievements of the Royal Commission and the commitments in this Australian Government Response are a tribute to the survivors and victims of institutional child sexual abuse, their families and supporters. Their courage has helped to create a culture of accountability and of trust in children’s voices that will help all of us to take responsibility for keeping children safe and well.

The Australian Government has listened to the Royal Commission and to survivors and victims of institutional child sexual abuse. The Australian Government acknowledges that much more needs to be done to prevent and protect children from sexual abuse in institutions.

Cultural change in our institutions and society more broadly, is fundamental to ensuring the safety of our children. Changing our institutional cultures and providing the legal and practical safeguards to support that change will take some time. Many of Australia’s governments and institutions have already acted to start that change, knowing that giving redress and comfort to survivors and protecting children into the future is urgent and cannot wait. In this response, the Australian Government has recognised and acknowledged that there must be change, but has also highlighted where genuine efforts at reform are being made.

On 15 December 2017, the Royal Commission submitted its Final Report to the Governor-General, His Excellency General the Honourable Sir Peter Cosgrove AK MC (Retd). The Final Report was tabled in the Australian Parliament the same day.

The Royal Commission recommended the Australian Government and all state and territory governments should issue a formal response to the Final Report within six months of it being tabled.

Of the 409 recommendations in the Final Report, 84 recommendations deal with redress, which the Australian Government is responding to through the creation of the National Redress Scheme for people who have experienced institutional child sexual abuse. Of the remaining 325 recommendations, 122 have been directed wholly or partially to the Australian Government. The Response accepts, or accepts in principle 104 of these 122 recommendations. The remaining 18 recommendations directed at the Australian Government are listed as being ‘for further consideration’ or are ‘noted’. The Australian Government has not rejected any of the recommendations.

vi

The Australian Government has also ‘noted’ some recommendations that fall within the leadership and responsibility of state and territory governments or that the Royal Commission directed to religious or other non-government institutions. The Australian Government will continue to work closely with all governments and institutions, including religious institutions, to promote children’s safety and wellbeing. Our expectation is that other governments and institutions will respond to each of the Royal Commission’s recommendations, indicating what action they will take in response to them and will report on their implementation of relevant recommendations annually in December, along with the Australian, state and territory governments. Where other governments and institutions decide not to accept the Royal Commission’s recommendations they should state so and why.

The Australian Government thanks the Commissioners, Mr Bob Atkinson AO APM, Justice Jennifer Coate, Mr Robert Fitzgerald AM, Professor Helen Milroy, Mr Andrew Murray and the Chair of the Royal Commission, the Hon Justice Peter McClellan AM, for their leadership and compassion throughout the Royal Commission and for delivering such a significant report for our nation. The Australian Government is grateful to the staff, expert witnesses, researchers, stakeholder groups, and government and non-government representatives who came forward to share their knowledge and experience. The Australian Government also acknowledges the spirit of commitment demonstrated by all state and territory governments during the Royal Commission and in working to address its recommendations. Most importantly, the Australian Government thanks the survivors and victims of institutional child sexual abuse, together with their families and supporters, for their courage and determination in telling their stories and for raising the awareness needed to protect our children.

The Hon Malcolm Turnbull MP

Prime Minister of Australia Attor ney-General

The Hon Christian Porter MP

1

PART ONE: FINAL REPORT RESPONSE

Part One: Final Report Response No. RECOMMENDATION RESPONSE STATUS2.1 The Australian Government should conduct and publish a nationally representative prevalence study on a regular basis to establish the extent of

child maltreatment in institutional and non-institutional contexts in Australia.

Accept in principle The National Office for Child Safety, once established within the Department of Social Services (DSS) on 1 July 2018, will undertake consultations with relevant stakeholders throughout July-August 2018 to ascertain how such a study could be conducted.

6.1

The Australian Government should establish a mechanism to oversee the development and implementation of a national strategy to prevent child sexual abuse. This work should be undertaken by the proposed National Office for Child Safety (see Recommendations 6.16 and 6.17) and be included in the National Framework for Child Safety (see Recommendation 6.15).

Accept

The National Office for Child Safety, once established within DSS on 1 July 2018, will establish a mechanism in consultation with state and territory governments, Australian Government agencies and non-government stakeholders in 2018, to advise on the development and implementation of a strategy to prevent child sexual abuse.

The Australian Government will prioritise collaboration with other jurisdictions to progress a new National Framework on Child Safety. The new framework will focus on prevention, education, evaluation and cultural change.

6.2

The national strategy to prevent child sexual abuse should encompass the following complementary initiatives: a.

social marketing campaigns to raise general community awareness and increase knowledge of child sexual abuse, to change problematic attitudes and behaviour relating to such abuse, and to promote and direct people to related prevention initiatives, information and help-seeking services b.

prevention education delivered through preschool, school and other community institutional settings that aims to increase children’s knowledge of child sexual abuse and build practical skills to assist in strengthening self-protective skills and strategies. The education should be integrated into existing school curricula and link with related areas such as respectful relationships education and sexuality education. It should be mandatory for

all preschools and schools

Accept in principle The National Office for Child Safety, once established within DSS on 1 July 2018, will consult with relevant

stakeholders regarding the nature and scope of any strategy and the best way to progress it during 2018.

2

No.

RECOMMENDATION

RESPONSE

STATUS

6.2

c.

prevention education for parents delivered through day care, preschool, school, sport and recreational settings, and other institutional and community settings. The education should aim to increase knowledge of child sexual abuse and its impacts, and build skills to help reduce the risks of child sexual abuse

d.

online safety education for children, delivered via schools. Ministers for education, through the Council of Australian Governments, should establish a nationally consistent curriculum for online safety education in schools. The Office of the eSafety Commissioner should be consulted on the design of the curriculum and contribute to the development of course content and approaches to delivery (see Recommendation 6.19)

e.

online safety education for parents and other community members to better support children’s safety online. Building on their current work, the Office of the eSafety Commissioner should oversee the delivery of this education nationally (see Recommendation 6.20)

f.

prevention education for tertiary students studying university, technical and further education, and vocational education and training courses before entering child related occupations. This should aim to increase awareness and understanding of the prevention of child sexual abuse and potentially harmful sexual behaviours in children

g.

information and help-seeking services to support people who are concerned they may be at risk of sexually abusing children. The design of these services should be informed by the Stop It Now! model implemented in Ireland and the United Kingdom

h.

information and help seeking services for parents and other members of the community concerned that: i.

an adult they know may be at risk of perpetrating child sexual abuse

ii.

a child or young person they know may be at risk of sexual abuse or harm

iii.

a child they know may be displaying harmful sexual behaviours.

3

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

6.3

The design and implementation of these initiatives should consider: a.

aligning with and linking to national strategies for preventing violence against adults and children, and strategies for addressing other forms of child maltreatment

b.

tailoring and targeting initiatives to reach, engage and provide access to all communities, including children, Aboriginal and Torres Strait Islander communities, culturally and linguistically diverse communities, people with disability, and regional and remote communities

c.

involving children and young people in the strategic development, design, implementation and evaluation of initiatives

d.

using research and evaluation to: i.

build the evidence base for using best practices to prevent child sexual abuse and harmful sexual behaviours in children

ii.

guide the development and refinement of interventions, including the piloting and testing of initiatives before they are implemented.

Accept in principle

The National Office for Child Safety, once established within DSS on 1 July 2018, will consult with stakeholders regarding the nature and scope of such initiatives in 2018.

6.4

All institutions should uphold the rights of the child. Consistent with Article 3 of the United Nations Convention on the Rights of the Child, all institutions should act with the best interests of the child as a primary consideration. In order to achieve this, institutions should implement the Child Safe Standards identified by the Royal Commission.

Accept

In August 2017, the Australian Government agreed to the development of a Commonwealth framework to protect children and young people in Commonwealth care (Commonwealth Child Safe Framework). All Australian Government agencies working with children will ensure that the Child Safe Standards, via the National Principles for Child Safe Organisations (National Principles) (referred to in Recommendation 6.7) will be adopted within 12 months of Council of Australian Government (COAG) or First Ministers’ endorsement. Further, the National Office for Child Safety, once established within the DSS from 1 July 2018, will work with state and territory governments and other organisations working with children, to promote and educate organisations working with children about the National Principles and their implementation.

4

No.

RECOMMENDATION

RESPONSE

STATUS

6.5

The Child Safe Standards are: 1.

Child safety is embedded in institutional leadership, governance and culture

2.

Children participate in decisions affecting them and are taken seriously

3.

Families and communities are informed and involved

4.

Equity is upheld and diverse needs are taken into account

5.

People working with children are suitable and supported

6.

Processes to respond to complaints of child sexual abuse are child focused

7.

Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training

8.

Physical and online environments minimise the opportunity for abuse to occur

9.

Implementation of the Child Safe Standards is continuously reviewed and improved

10.

Policies and procedures document how the institution is child safe.

Accept

The Child Safe Standards have been incorporated into the National Principles. Following Community Services Ministers’ agreement to the final draft, COAG or First Ministers’ endorsement of the National Principles will be sought. The Australian Government recognises state and territory governments may differ in their implementation due to their existing systems and instruments, but consistency will be achieved over time, where possible. The Australian, state and territory governments will continue to work together to provide leadership on Child Safe Standards.

6.6

Institutions should be guided by the following core components when implementing the Child Safe Standards: Standard 1: Child safety is embedded in institutional leadership, governance and culture a.

The institution publicly commits to child safety and leaders champion a

child safe culture.

b.

Child safety is a shared responsibility at all levels of the institution.

c.

Risk management strategies focus on preventing, identifying and mitigating risks to children.

d.

Staff and volunteers comply with a code of conduct that sets clear behavioural standards towards children.

e.

Staff and volunteers understand their obligations on information sharing and recordkeeping.

Accept

The Child Safe Standards have been incorporated into the National Principles. Following Community Services Ministers’ agreement COAG or First Ministers’ endorsement of the National Principles will be sought. Further, the National Children’s Commissioner has developed resources to assist organisations in implementing the National Principles. The Australian Government recognises state and territory governments may differ in their implementation due to their existing systems and instruments, but consistency will be achieved over time, where possible. The Australian, state and territory governments will continue to work together to provide leadership on Child Safe Standards.

5

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

Standard 2: Children participate in decisions affecting them and are taken seriously a.

Children are able to express their views and are provided opportunities to participate in decisions that affect their lives.

b.

The importance of friendships is recognised and support from peers is encouraged, helping children feel safe and be less isolated.

c.

Children can access sexual abuse prevention programs and information.

d.

Staff and volunteers are attuned to signs of harm and facilitate child-friendly ways for children to communicate and raise their concerns.

Standard 3: Families and communities are informed and involved a.

Families have the primary responsibility for the upbringing and development of their child and participate in decisions affecting their child.

b.

The institution engages in open, two-way communication with families and communities about its child safety approach and relevant information is accessible.

c.

Families and communities have a say in the institution’s policies and practices.

d.

Families and communities are informed about the institution’s operations and governance.

Standard 4: Equity is upheld and diverse needs are taken into account a.

The institution actively anticipates children’s diverse circumstances and responds effectively to those with additional vulnerabilities.

b.

All children have access to information, support and complaints processes.

c.

The institution pays particular attention to the needs of Aboriginal and Torres Strait Islander children, children with disability, and children from culturally and linguistically diverse backgrounds.

6

No.

RECOMMENDATION

RESPONSE

STATUS

6.6

Standard 5: People working with children are suitable and supported a.

Recruitment, including advertising and screening, emphasises child safety.

b.

Relevant staff and volunteers have Working With Children Checks.

c.

All staff and volunteers receive an appropriate induction and are aware of their child safety responsibilities, including reporting obligations.

d.

Supervision and people management have a child safety focus.

Standard 6: Processes to respond to complaints of child sexual abuse are

child focused a.

The institution has a child-focused complaint handling system that is understood by children, staff, volunteers and families.

b.

The institution has an effective complaint handling policy and procedure which clearly outline roles and responsibilities, approaches to dealing with different types of complaints and obligations to act and report.

c.

Complaints are taken seriously, responded to promptly and thoroughly, and reporting, privacy and employment law obligations are met.

Standard 7: Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training a.

Relevant staff and volunteers receive training on the nature and indicators of child maltreatment, particularly institutional child sexual abuse.

b.

Staff and volunteers receive training on the institution’s child safe practices and child protection.

c.

Relevant staff and volunteers are supported to develop practical skills in protecting children and responding to disclosures.

Standard 8: Physical and online environments minimise the opportunity for

abuse to occur a.

Risks in the online and physical environments are identified and mitigated without compromising a child’s right to privacy and healthy development.

b.

The online environment is used in accordance with the institution’s code of conduct and relevant policies.

7

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

Standard 9: Implementation of the Child Safe Standards is continuously reviewed and improved a.

The institution regularly reviews and improves child safe practices.

b.

The institution analyses complaints to identify causes and systemic failures to inform continuous improvement.

Standard 10: Policies and procedures document how the institution is child safe a.

Policies and procedures address all Child Safe Standards.

b.

Policies and procedures are accessible and easy to understand.

c.

Best practice models and stakeholder consultation inform the development of policies and procedures.

d.

Leaders champion and model compliance with policies and procedures.

e.

Staff understand and implement the policies and procedures.

6.7

The national Child Safe Standards developed by the Royal Commission and listed at Recommendation 6.5 should be adopted as part of the new National Statement of Principles for Child Safe Organisations described by the Community Services Ministers’ Meeting in November 2016. The National Statement of Principles for Child Safe Organisations should be endorsed by the Council of Australian Governments.

Accept

The Child Safe Standards have been incorporated into the National Principles. Following Community Services Ministers’ agreement to the final draft, COAG or First Ministers’ endorsement of the National Principles will be sought. The Australian Government recognises state and territory governments may differ in their implementation due to their existing systems and instruments, but consistency will be achieved over time, where possible. The Australian, state and territory governments will continue to work together to provide leadership on Child Safe Standards.

6.8

State and territory governments should require all institutions in their jurisdictions that engage in child-related work to meet the Child Safe Standards identified by the Royal Commission at Recommendation 6.5.

Accept in principle

The Australian Government supports this recommendation and notes that this is primarily a matter for state and territory governments.

8

No.

RECOMMENDATION

RESPONSE

STATUS

6.9

Legislative requirements to comply with the Child Safe Standards should cover institutions that provide: a.

accommodation and residential services for children, including overnight excursions or stays

b.

activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children

c.

childcare or childminding services

d.

child protection services, including out-of-home care

e.

activities or services where clubs and associations have a significant membership of, or involvement by, children

f.

coaching or tuition services for children

g.

commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions

h.

services for children with disability

i.

education services for children

j.

health services for children

k.

justice and detention services for children, including immigration detention facilities

l.

transport services for children, including school crossing services.

Accept in principle

The Australian Government supports this recommendation and notes that this recommendation is primarily a matter for state and territory governments.

6.10

State and territory governments should ensure that: a.

an independent oversight body in each state and territory is responsible for monitoring and enforcing the Child Safe Standards. Where appropriate, this should be an existing body

b.

the independent oversight body is able to delegate responsibility for monitoring and enforcing the Child Safe Standards to another state or territory government body, such as a sector regulator

c.

regulators take a responsive and risk-based approach when monitoring compliance with the Child Safe Standards and, where possible, utilise existing regulatory frameworks to monitor and enforce the Child Safe Standards.

Noted

This recommendation is a matter for state and territory governments. The National Office for Child Safety will work closely with state and territory governments to coordinate the respective efforts of the Australian Government and the state and territory governments in implementing the National Principles

for Child Safe Organisations which incorporate the Child Safe Standards.

9

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

6.11

Each independent state and territory oversight body should have the following additional functions: a.

provide advice and information on the Child Safe Standards to institutions and the community

b.

collect, analyse and publish data on the child safe approach in that jurisdiction and provide that data to the proposed National Office for Child Safety

c.

partner with peak bodies, professional standards bodies and/or sector leaders to work with institutions to enhance the safety of children

d.

provide, promote or support education and training on the Child Safe Standards to build the capacity of institutions to be child safe

e.

coordinate ongoing information exchange between oversight bodies relating to institutions’ compliance with the Child Safe Standards.

Noted

This recommendation is a matter for state and territory governments.

6.12

With support from governments at the national, state and territory levels, local governments should designate child safety officer positions from existing staff profiles to carry out the following functions: a.

developing child safe messages in local government venues, grounds and facilities

b.

assisting local institutions to access online child safe resources

c.

providing child safety information and support to local institutions on a needs basis

d.

supporting local institutions to work collaboratively with key services to ensure child safe approaches are culturally safe, disability aware and appropriate for children from diverse backgrounds.

For further consideration

The Australian Government will continue to work closely with all governments and institutions to promote children’s safety and wellbeing.

10

No.

RECOMMENDATION

RESPONSE

STATUS

6.13

The Australian Government should require all institutions that engage in child-related work for the Australian Government, including Commonwealth agencies, to meet the Child Safe Standards identified by the Royal Commission at Recommendation 6.5.

Accept

The Child Safe Standards have been incorporated into the National Principles. Following Community Services Ministers’ agreement to the final draft, COAG or First Ministers’ endorsement of the National Principles will be sought. On 22 August 2017, the Australian Government agreed to the development of a Commonwealth framework to protect children and young people in Commonwealth care (Commonwealth Child Safe Framework). Consideration is being given to an appropriate way to extend the Commonwealth framework to Commonwealth funded third parties. The Department of Social Services is leading this work with the Department of Finance, in consultation with the Department of the Prime Minister and Cabinet, the Department of Home Affairs and the Attorney-General’s Department.

6.14

The Australian Government should be responsible for the following functions: a.

evaluate, publicly report on, and drive the continuous improvement of the implementation of the Child Safe Standards and their outcomes

b.

coordinate the direct input of children and young people into the evaluation and continuous improvement of the Child Safe Standards

c.

coordinate national capacity building and support initiatives and opportunities for collaboration between jurisdictions and institutions

d.

develop and promote national strategies to raise awareness and drive cultural change in institutions and the community to support child safety.

Accept in principle

COAG or First Ministers’ endorsement of the National Principles will be sought. Once COAG agreement to the National Principles is reached, Community Services Ministers will ascertain roles and responsibilities across the Australian, state and territory governments.

11

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

6.15

The Australian Government should develop a new National Framework for

Child Safety in collaboration with state and territory governments. The Framework should: a.

commit governments to improving the safety of all children by implementing long-term child safety initiatives, with appropriate resources, and holding them to account

b.

be endorsed by the Council of Australian Governments and overseen by a joint ministerial body

c.

commence after the expiration of the current National Framework for Protecting Australia’s Children, no later than 2020

d.

cover broader child safety issues, as well as specific initiatives to better prevent and respond to institutional child sexual abuse including initiatives recommended by the Royal Commission

e.

include links to other related policy frameworks.

Accept

The development of a National Framework for Child Safety is being considered as part of the post-2020 planning following the finalisation of the National Framework for Protecting Australia’s Children

2009-2020. Further planning will take place through the establishment of the National Office for Child Safety within DSS from 1 July 2018. The final form of any National Framework will be informed by consultations with state and territory governments and broader children and family sectors.

6.16

The Australian Government should establish a National Office for Child Safety in the Department of the Prime Minister and Cabinet, to provide a response to the implementation of the Child Safe Standards nationally, and to develop and lead the proposed National Framework for Child Safety. The Australian Government should transition the National Office for Child Safety into an Australian Government statutory body within 18 months of this Royal Commission’s Final Report being tabled in the Australian Parliament.

Accept

A National Office for Child Safety will be established from 1 July 2018.

6.17

The National Office for Child Safety should report to Parliament and have the following functions: a.

develop and lead the coordination of the proposed National Framework for Child Safety, including national coordination of the Child Safe Standards

b.

collaborate with state and territory governments to lead capacity building and continuous improvement of child safe initiatives through resource development, best practice material and evaluation

Accept in principle

A National Office for Child Safety will be established within DSS commencing 1 July 2018. The Australian Government will report further on the Office’s functions and reporting arrangements at the first annual report in December 2018.

12

No.

RECOMMENDATION

RESPONSE

STATUS

6.17

c.

promote the participation and empowerment of children and young people in the National Framework and child safe initiatives

d.

perform the Australian Government’s Child Safe Standards functions as set out at Recommendation 6.15

e.

lead the community prevention initiatives as set out in Recommendation 6.2.

6.18

The Australian Government should create a ministerial portfolio with responsibility for children’s policy issues, including the National Framework for Child Safety.

Accept

This recommendation has been implemented. The Hon Dr David Gillespie MP was appointed as the Assistant Minister for Children and Families in December 2017. The Assistant Minister is leading work on the National Framework.

6.19

Ministers for education, through the Council of Australian Governments, should establish a nationally consistent curriculum for online safety education in schools. The Office of the eSafety Commissioner should be consulted on the design of the curriculum and contribute to the development of course content and approaches to delivery. The curriculum should: a.

be appropriately staged from Foundation year to Year 12 and be linked with related content areas to build behavioural skills as well as technical knowledge to support a positive and safe online culture

b.

involve children and young people in the design, delivery and piloting of new online safety education, and update content annually to reflect evolving technologies, online behaviours and evidence of international best practice approaches

c.

be tailored and delivered in ways that allow all Australian children and young people to reach, access and engage with online safety education, including vulnerable groups that may not access or engage with the school system.

Accept in principle

The Australian Curriculum addresses online safety and security from Foundation to Year 10. This is primarily through the Australian Curriculum: Digital Technologies (AC:DT) and the ICT General Capability. States and territories are rolling out the AC:DT through a staggered approach with full implementation expected by the end of 2018. The Australian Government funds a range of initiatives to support the implementation of the AC:DT, including the Digital Technologies Hub - an online portal for teachers, parents and students. The Digital Technologies Hub includes resources and links to online safety education resources that are explicitly linked to the Australian Curriculum, including resources produced by the Office of the eSafety Commissioner. The Student Wellbeing Hub and the Office of the eSafety Commissioner’s website also host online safety resources for school communities, including resources specifically for teachers and students.

13

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

In the 2018-19 budget, $14.2 million of additional funding over four years has been granted to the Office of the eSafety Commissioner which includes $1.7 million to enable the Office of the eSafety Commissioner to develop targeted online resources for both children and adults. A further $1.2 million will go to the Office of the eSafety Commissioner to engage with universities to train student teachers so they can educate children about online safety and security, and to certify educators who can work in schools to provide online safety education to students.

6.20

Building on its current work, the Office of the eSafety Commissioner should oversee the delivery of national online safety education aimed at parents and other community members to better support children’s safety online. These communications should aim to: a.

keep the community up to date on emerging risks and opportunities for safeguarding children online

b.

build community understanding of responsibilities, legalities and the ethics of children’s interactions online

c.

encourage proactive responses from the community to make it ‘everybody’s business’ to intervene early, provide support or report issues when concerns for children’s safety online are raised

d.

increase public awareness of how to access advice and support when online incidents occur.

Accept in principle

The Office of the eSafety Commissioner takes a national leadership role in keeping Australians safe online. The Office of the sSafety Commissioner operates a national online safety program targeting parents, carers and other community members who work with children, aimed at raising awareness and understanding of online safety issues. This program is informed by research and includes face-to-face presentations to community groups and is complemented by information on the Office of the eSafety Commissioner’s iParent portal. Further research will be undertaken with parents to better understand their needs relating to youth online safety issues. In the 2018-19 budget, $14.2 million of additional funding over four years has been granted to the Office of the eSafety Commissioner which includes $1.7 million to enable the Office of the eSafety Commissioner to develop targeted online resources for both children and adults. A further $1.2 million will go to the Office of the eSafety Commissioner to engage with universities to train student teachers at universities so they can educate children about online safety and security, and to certify educators who can work in schools to provide online safety education to students.

14

No.

RECOMMENDATION

RESPONSE

STATUS

6.21

Pre-service education and in-service staff training should be provided to support child-related institutions in creating safe online environments. The Office of the eSafety Commissioner should advise on and contribute to program design and content. These programs should be aimed at: a.

tertiary students studying university, technical and further education, and vocational education and training courses, before entering

child-related occupations; and could be provided as a component of a broader program of child sexual abuse prevention education

(see Recommendation 6.2)

b.

staff and volunteers in schools and other child-related organisations, and could build on the existing web-based learning programs of the Office of the eSafety Commissioner.

Accept in principle

This recommendation is primarily the responsibility of state and territory governments. Initial teacher education providers are required to meet the

Accreditation of initial teacher education programs

in Australia: Standards and Procedures

which set high

level requirements and work to ensure that all initial teacher education graduates meet the Graduate career stage of the Australian Professional Standards for Teachers (the Teacher Standards). The Teacher Standards state that graduates must be able to demonstrate knowledge, understanding and identify strategies to create and maintain a supportive and safe learning environment (Standard 4). The

Accreditation of initial teacher education programs

in Australia: Standards and Procedures

sets out the

requirements of teacher education programs. Program content is the responsibility of each institution, but includes state and territory legislative requirements. The Office of the eSafety Commissioner delivers free presentations to pre-service teachers in their final years of tertiary study. The eSafety Commissioner also provides lesson plans, classroom resources and can assist schools to develop their own online safety and wellbeing polices. The National Office for Child Safety, once established within DSS from 1 July 2018, will work with state and territory governments and other organisations working with children to promote and educate organisations working with children about the National Principles and their implementation.

15

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

In the 2018-19 Budget $1.2 million will go to the Office of the eSafety Commissioner to engage with universities to train student teachers so they can educate children about online safety and security, and to certify educators who can work in schools to provide online safety education to students.

6.22

In partnership with the proposed National Office of Child Safety (see Recommendations 6.16 and 6.17), the Office of the eSafety Commissioner should oversee the development of an online safety framework and resources to support all schools in creating child safe online environments. This work should build on existing school-based e-safety frameworks and guidelines, drawing on Australian and international models. The school-based online safety framework and resources should be designed to: a.

support schools in developing, implementing and reviewing their online codes of conduct, policies and procedures to help create an online culture that is safe for children

b.

guide schools in their response to specific online incidents, in coordination with other agencies. This should include guidance in complaint handling, understanding reporting requirements, supporting victims to minimise further harm, and preserving digital evidence to support criminal justice processes.

Accept in principle

The National Safe Schools Framework (NSSF) developed in 2003 and revised and nationally endorsed by all Ministers of Education in 2011, is a free resource for schools available on the Student Wellbeing Hub. The Framework provides a vision and a set of guiding principles to assist Australian school communities to develop positive and practical student safety and wellbeing policies and practices. The Government is currently reviewing the Framework in collaboration with the state and territory and non- government education authorities to ensure alignment with contemporary issues facing school communities, including online safety. Once finalised, the revised Framework will be submitted to the Education Council for endorsement and disseminated to Australian schools. The revised Framework will align the National Framework for Protecting Australia’s children 2009-2020 and other relevant national, state and territory legislation, laws, policies and programs. The COAG Education Council has endorsed a time- limited working group to be established under the auspices of the Australian Education Senior Officials Committee (AESOC). The working group will deliver shared responses to early childhood and school education related recommendations from the Royal Commission. The working group will include representation from all state and territory education authorities as well as the non-government school sector. The working group will consider this recommendation.

16

No.

RECOMMENDATION

RESPONSE

STATUS

6.23

State and territory education departments should consider introducing centralised mechanisms to support government and non-government schools when online incidents occur. This should result in appropriate levels of escalation and effective engagement with all relevant entities, such as the Office of the eSafety Commissioner, technical service providers and law enforcement.

Noted

This recommendation is a matter for state and territory governments. The Office of the eSafety Commissioner currently provides advice and guidance to a range of institutions, including schools, on best practice responses to online incidents. The Office of the eSafety Commissioner has Memorandums of Understanding (MOUs) with 11 state Independent and Catholic education sectors. These agreements enable information-sharing about cyberbullying incidents between schools and the Office of the eSafety Commissioner. In addition, they set out the role of the Office of the eSafety Commissioner with respect to intervention (including reporting) and prevention (including education efforts). The Office of the eSafety Commissioner does not presently have MOUs with state or territory education departments.

6.24

In consultation with the eSafety Commissioner, police commissioners from states and territories and the Australian Federal Police should continue to ensure national capability for coordinated, best practice responses by law enforcement agencies to online child sexual abuse. This could include through: a.

establishing regular meetings of the heads of cybersafety units in all Australian police departments to ensure a consistent capacity to respond to emerging incidents and share best practice approaches, tools and resources

b.

convening regular forums and conferences to bring together law enforcement, government, the technology industry, the community sector and other relevant stakeholders to discuss emerging issues, set agendas and identify solutions to online child sexual abuse and exploitation

c.

building capability across police departments, through in-service training for: i.

frontline police officers to respond to public complaints relating to issues of online child sexual abuse or harmful sexual behaviours

ii.

police officers who liaise with young people in school and

community settings.

Accept in principle

The Australian Federal Police (AFP) fully supports a streamlined approach to combating child sexual abuse online. The AFP will consider this recommendation together with the eSafety Commissioner, and state and territory police commissioners. The recently announced Australian Centre for Countering Child Exploitation will enhance coordination of efforts to combat child sexual abuse across Australian police forces.

17

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

Volume 7, Improving institutional responding and reporting recommendations 7.1

State and territory governments that do not have a mandatory reporter guide should introduce one and require its use by mandatory reporters.

Noted

This recommendation is a matter for state and territory governments.

7.2

Institutions and state and territory governments should provide mandatory reporters with access to experts who can provide timely advice on child sexual abuse reporting obligations.

Noted

This recommendation is a matter for state and territory governments.

7.3

State and territory governments should amend laws concerning mandatory reporting to child protection authorities to achieve national consistency in reporter groups. At a minimum, state and territory governments should also include the following groups of individuals as mandatory reporters in every jurisdiction: a.

out-of-home care workers (excluding foster and kinship/relative carers)

b.

youth justice workers

c.

early childhood workers

d.

registered psychologists and school counsellors

e.

people in religious ministry.

Noted

This recommendation is a matter for state and territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively

to the Commonwealth.

7.4

Laws concerning mandatory reporting to child protection authorities should not exempt persons in religious ministry from being required to report knowledge or suspicions formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.

Noted

This recommendation is a matter for state and territory governments.

7.5

The Australian Government and state and territory governments should ensure that legislation provides comprehensive protection for individuals who make reports in good faith about child sexual abuse in institutional contexts. Such individuals should be protected from civil and criminal liability and from reprisals or other detrimental action as a result of making a complaint or report, including in relation to: a.

mandatory and voluntary reports to child protection authorities under

child protection legislation

b.

notifications concerning child abuse under the Health Practitioner Regulation National Law

Noted

This recommendation is a matter for state and territory governments.

18

No.

RECOMMENDATION

RESPONSE

STATUS

7.6

State and territory governments should amend child protection legislation to provide adequate protection for individuals who make complaints or reports in good faith to any institution engaging in child-related work about: a.

child sexual abuse within that institution or

b.

the response of that institution to child sexual abuse.

Such individuals should be protected from civil and criminal liability and from reprisals or other detrimental action as a result of making a complaint or report.

Noted

This recommendation is a matter for state and territory governments.

7.7

Consistent with Child Safe Standard 6: Processes to respond to complaints of child sexual abuse are child focused, institutions should have a clear, accessible and child-focused complaint handling policy and procedure that sets out how the institution should respond to complaints of child sexual abuse. The complaint handling policy and procedure should cover: a.

making a complaint

b.

responding to a complaint

c.

investigating a complaint

d.

providing support and assistance

e.

achieving systemic improvements following a complaint.

Accept

The National Principles broadly reflect this recommendation. The Australian Government will develop a guide on best practice processes in the second half of 2018. All Australian Government agencies are required to adopt the National Principles within 12 months of endorsement.

7.8

Consistent with Child Safe Standard 1: Child safety is embedded in institutional leadership, governance and culture, institutions should have a clear code of conduct that: a.

outlines behaviours towards children that the institution considers unacceptable, including concerning conduct, misconduct or

criminal conduct

b.

includes a specific requirement to report any concerns, breaches or suspected breaches of the code to a person responsible for handling complaints in the institution or to an external authority when required by law and/or the institution’s complaint handling policy

c.

outlines the protections available to individuals who make complaints or reports in good faith to any institution engaging in child-related work (see Recommendation 7.6 on reporter protections).

Accept

The National Principles broadly reflect this recommendation. The Australian Government will develop a resource to assist organisations to embed child safety in organisational leadership, governance and code of conduct in the second half of 2018. All Australian Government agencies are required to adopt the National Principles within 12 months of endorsement.

19

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

7.9

State and territory governments should establish nationally consistent legislative schemes (reportable conduct schemes), based on the approach adopted in New South Wales, which oblige heads of institutions to notify an oversight body of any reportable allegation, conduct or conviction involving any of the institution’s employees.

Noted

This recommendation is a matter for state and territory governments.

7.10

Reportable conduct schemes should provide for: a.

an independent oversight body

b.

obligatory reporting by heads of institutions

c.

a definition of reportable conduct that covers any sexual offence, or

sexual misconduct, committed against, with, or in the presence of, a child

d.

a definition of reportable conduct that includes the historical conduct of a current employee

e.

a definition of employee that covers paid employees, volunteers and contractors

f.

protection for persons who make reports in good faith

g.

oversight body powers and functions that include: i.

scrutinising institutional systems for preventing reportable conduct and for handling and responding to reportable allegations, or reportable convictions

ii.

monitoring the progress of investigations and the handling of complaints by institutions

iii.

conducting, on its own motion, investigations concerning any reportable conduct of which it has been notified or otherwise becomes aware

iv.

power to exempt any class or kind of conduct from being reportable conduct

v.

capacity building and practice development, through the provision of training, education and guidance to institutions

vi.

public reporting, including annual reporting on the operation of the scheme and trends in reports and investigations, and the power to make special reports to parliaments.

Noted

This recommendation is a matter for state and territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively

to the Commonwealth.

20

No.

RECOMMENDATION

RESPONSE

STATUS

7.11

State and territory governments should periodically review the operation of reportable conduct schemes, and in that review determine whether the schemes should cover additional institutions that exercise a high degree of responsibility for children and involve a heightened risk of child sexual abuse.

Noted

This recommendation is a matter for state and territory governments.

7.12

Reportable conduct schemes should cover institutions that: •

exercise a high degree of responsibility for children

•

engage in activities that involve a heightened risk of child sexual abuse, due to institutional characteristics, the nature of the activities involving children, or the additional vulnerability of the children the institution engages with.

At a minimum, these should include institutions that provide: a.

accommodation and residential services for children, including: i.

housing or homelessness services that provide overnight beds for children and young people

ii.

providers of overnight camps

b.

activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children

c.

childcare services, including: i.

approved education and care services under the Education and Care Services National Law

ii.

approved occasional care services

d.

child protection services and out-of-home care, including: i.

child protection authorities and agencies

ii.

providers of foster care, kinship or relative care

iii.

providers of family group homes

iv.

providers of residential care

Accept

In large part this recommendation is a matter for state and territory governments but in so far as it applies to Commonwealth Government Agencies it is accepted.

21

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

e.

disability services and supports for children with disability, including: i.

disability service providers under state and territory legislation

ii.

registered providers of supports under the National Disability Insurance Scheme

f.

education services for children, including: i.

government and non-government schools

ii.

TAFEs and other institutions registered to provide senior secondary education or training, courses for overseas students or student exchange programs

g.

health services for children, including: i.

government health departments and agencies, and statutory corporations

ii.

public and private hospitals

iii.

providers of mental health and drug or alcohol treatment services that have inpatient beds for children and young people

h.

justice and detention services for children, including: i.

youth detention centres

ii.

immigration detention facilities.

22

No.

RECOMMENDATION

RESPONSE

STATUS

Volume 8, Recordkeeping and information sharing recommendations 8.1

To allow for delayed disclosure of abuse by victims and take account of limitation periods for civil actions for child sexual abuse, institutions that engage in child-related work should retain, for at least 45 years, records relating to child sexual abuse that has occurred or is alleged to have occurred.

Accept

The Australian Government will prioritise collaboration with other jurisdictions, led by archives and records authorities, to develop advice and information about records retention. The National Archives of Australia is reviewing current disposal authorisation to ensure a minimum 45 year retention period for relevant records, and will incorporate this minimum requirement in future disposal authorisation. Existing retention periods for relevant records are often more than 45 years, and where there is a longer retention period, this will be retained. The present disposal freeze on records required for

the Royal Commission will remain in force while this work progresses.

8.2

The National Archives of Australia and state and territory public records authorities should ensure that records disposal schedules require that records relating to child sexual abuse that has occurred or is alleged to have occurred be retained for at least 45 years.

Accept

In addition to the actions under Recommendation 8.1, the National Archives is reviewing options to ensure a minimum retention period of 45 years across Government for relevant records, including the issue of a general prohibition on the disposal of relevant records before 45 years, and amendments to existing disposal authorisation for individual agencies. The National Archives is working with state and territory government archives to ensure consistency of implementation where possible.

23

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

8.3

The National Archives of Australia and state and territory public records authorities should provide guidance to government and non-government institutions on identifying records which, it is reasonable to expect, may become relevant to an actual or alleged incident of child sexual abuse; and on the retention and disposal of such records.

Accept

The National Archives is drafting guidance in collaboration with state and territory government archives to ensure consistency of advice where relevant. This guidance will assist institutions to identify records which it is reasonable to expect may become relevant to an actual or alleged incident of child sexual abuse. It is envisaged it will also outline good management of records including necessary creation, retention and secure destruction where appropriate. The guidance will apply to government institutions, but may also be used by non-government institutions and will be promoted through professional associations and other channels to reach a broad audience.

8.4

All institutions that engage in child-related work should implement the following principles for records and recordkeeping, to a level that responds to the risk of child sexual abuse occurring within the institution. Principle 1: Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture. Institutions that care for or provide services to children must keep the best interests of the child uppermost in all aspects of their conduct, including recordkeeping. It is in the best interest of children that institutions foster a culture in which the creation and management of accurate records are integral parts of the institution’s operations and governance. Principle 2: Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse. Institutions should ensure that records are created to document any identified incidents of grooming, inappropriate behaviour (including breaches of institutional codes of conduct) or child sexual abuse and all responses to such incidents.

Accept in principle

The Australian Government will prioritise collaboration with relevant agencies and organisations to develop appropriate guidance on assessing risk and developing recordkeeping principles. The National Archives issued an Information Management Standard for Australian Government agencies in 2017 which is consistent with the recordkeeping principles proposed by the Royal Commission. The National Archives will issue advice to Australian Government agencies on how the principles can be met through implementation of the Standard.

24

No.

RECOMMENDATION

RESPONSE

STATUS

8.4

Records created by institutions should be clear, objective and thorough. They should be created at, or as close as possible to, the time the incidents occurred, and clearly show the author (whether individual or institutional) and the date created. Principle 3: Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained in an indexed, logical and secure manner. Associated records should be collocated or cross-referenced to ensure that people using those records are aware of all relevant information. Principle 4: Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy. Records relevant to child safety and wellbeing, including child sexual abuse, must only be destroyed in accordance with records disposal schedules or published institutional policies. Records relevant to child sexual abuse should be subject to minimum retention periods that allow for delayed disclosure of abuse by victims, and take account of limitation periods for civil actions for child sexual abuse. Principle 5: Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent. Individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted. Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated, and to seek review or appeal of decisions refusing access, amendment or annotation.

25

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

8.5

State and territory governments should ensure that non-government schools operating in the state or territory are required to comply, at a minimum, with standards applicable to government schools in relation to the creation, maintenance and disposal of records relevant to child safety and wellbeing, including child sexual abuse.

Noted

This recommendation is a matter for state and territory governments.

8.6

The Australian Government and state and territory governments should make nationally consistent legislative and administrative arrangements, in each jurisdiction, for a specified range of bodies (prescribed bodies) to share information related to the safety and wellbeing of children, including information relevant to child sexual abuse in institutional contexts (relevant information). These arrangements should be made to establish an information exchange scheme to operate in and across Australian institutions.

Accept in principle

The Australian Government will prioritise collaboration with other jurisdictions to promote legislative and administrative arrangements for information sharing.

8.7

In establishing the information exchange scheme, the Australian Government and state and territory governments should develop a minimum of nationally consistent provisions to: a.

enable direct exchange of relevant information between a range of prescribed bodies, including service providers, government and

non-government agencies, law enforcement agencies, and regulatory and oversight bodies, which have responsibilities related to children’s safety and wellbeing

b.

permit prescribed bodies to provide relevant information to other prescribed bodies without a request, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts

c.

require prescribed bodies to share relevant information on request from other prescribed bodies, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts, subject to limited exceptions

d.

explicitly prioritise children’s safety and wellbeing and override laws that might otherwise prohibit or restrict disclosure of information to prevent, identify and respond to child sexual abuse in institutional contexts

Accept in principle

The Australian Government will work with other jurisdictions to identify and remove barriers to information sharing and to develop methods to promote and enable information sharing. Governments will seek to build on existing arrangements within jurisdictions and across jurisdictions in preparation for developing an agreed information sharing scheme.

26

No.

RECOMMENDATION

RESPONSE

STATUS

8.8

The Australian Government, state and territory governments and prescribed bodies should work together to ensure that the implementation of our recommended information exchange scheme is supported with education, training and guidelines. Education, training and guidelines should promote understanding of, and confidence in, appropriate information sharing to better prevent, identify and respond to child sexual abuse in institutional contexts, including by addressing: a.

impediments to information sharing due to limited understanding of applicable laws

b.

unauthorised sharing and improper use of information

Accept in principle

The Australian Government will continue to collaborate with other jurisdictions to provide awareness raising, education and training around information sharing obligations and requirements. Governments will work with relevant bodies and government agencies, such as the Office of the Australian Information Commissioner, children’s commissioners and advocates, and relevant or prescribed bodies. See recommendation 8.16.

8.9

The Council of Australian Governments (COAG) Education Council should consider the need for nationally consistent state and territory legislative requirements about the types of information recorded on teacher registers. Types of information that the council should consider, with respect to a person’s registration and employment as a teacher, include: a.

the person’s former names and aliases

b.

the details of former and current employers

c.

where relating to allegations or incidents of child sexual abuse: i.

current and past disciplinary actions, such as conditions on,

suspension of, and cancellation of registration

ii.

grounds for current and past disciplinary actions

iii.

pending investigations

iv.

findings or outcomes of investigations where allegations have

been substantiated.

Accept in principle

The Australian Institute for Teaching and School Leadership (AITSL) is conducting a National Review of Teacher Registration. The recommendations of the Royal Commission that relate to teacher registration will be taken into account in the review. An expert panel is currently consulting with a wide range of stakeholders, including state and territory regulatory authorities. Consultations with teacher regulatory authorities include discussions on teacher legislative frameworks and regulation. A consultation paper has been published and public submissions were open until 7 May 2018. The Review’s Expert Panel will report back to the Education Council in September 2018.

8.10

The COAG Education Council should consider the need for nationally consistent provisions in state and territory teacher registration laws providing that teacher registration authorities may, and/or must on request, make information on teacher registers available to: a.

teacher registration authorities in other states and territories

b.

teachers’ employers.

Accept in principle

27

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

8.11

The COAG Education Council should consider the need for nationally

consistent provisions a.

in state and territory teacher registration laws or

b.

in administrative arrangements, based on legislative authorisation for information sharing under our recommended information exchange scheme

providing that teacher registration authorities may or must notify teacher registration authorities in other states and territories and teachers’ employers of information they hold or receive about the following matters where they relate to allegations or incidents of child sexual abuse: a.

disciplinary actions, such as conditions or restrictions on, suspension of, and cancellation of registration, including with notification of grounds

b.

investigations into conduct, or into allegations or complaints

c.

findings or outcomes of investigations

d.

resignation or dismissal from employment.

Accept in principle

8.12

In considering improvements to teacher registers and information sharing by registration authorities, the COAG Education Council should also consider what safeguards are necessary to protect teachers’ personal information.

Accept

8.13

State and territory governments should ensure that policies provide for the exchange of a student’s information when they move to another school, where: a.

the student may pose risks to other children due to their harmful sexual behaviours or may have educational or support needs due to their experiences of child sexual abuse

b.

the new school needs this information to address the safety and wellbeing of the student or of other students at the school.

State and territory governments should give consideration to basing these policies on our recommended information exchange scheme (Recommendations 8.6 to 8.8).

Noted

This recommendation is a matter for state and territory governments. See recommendation 8.16.

28

No.

RECOMMENDATION

RESPONSE

STATUS

8.14

State and territory governments should ensure that policies for the exchange of a student’s information when they move to another school: a.

provide that the principal (or other authorised information sharer) at the student’s previous school is required to share information with the new school in the circumstances described in Recommendation 8.13 and

b.

apply to schools in government and non-government systems.

Noted

This recommendation is a matter for state and territory governments. See recommendation 8.16.

8.15

State and territory governments should ensure that policies about the exchange of a student’s information (as in Recommendations 8.13 and 8.14) provide the following safeguards, in addition to any safeguards attached to our recommended information exchange scheme: a.

information provided to the new school should be proportionate to its need for that information to assist it in meeting the student’s safety and wellbeing needs, and those of other students at the school

b.

information should be exchanged between principals, or other authorised information sharers, and disseminated to other staff members on a

need-to-know basis.

Noted

This recommendation is a matter for state and territory governments. See recommendation 8.16.

8.16

The COAG Education Council should review the Interstate Student Data Transfer Note and Protocol in the context of the implementation of our recommended information exchange scheme (Recommendations 8.6 to 8.8).

Noted

The Australian Government supports the harmonisation of legislative and administrative arrangements in states and territories to support data access and sharing. The Data Strategy Group, which reports to the Australian Education Senior Officials Committee under the Education Council and includes representatives from all states and territories and the non-government sector, is considering the best ways to enhance educational data access and sharing arrangements.

29

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

A key piece of work the Data Strategy Group is progressing is the development of a National Schools Information Agreement, which will specify the defined and agreed purposes for which schooling information can be shared amongst education authorities and their schools. The Data Strategy Group is also considering the development of a National Minimum Dataset to ensure that the collection, analysis and reporting of schooling data is consistent and comparable within and across jurisdictions, sectors and nationally.

8.17

State and territory governments should introduce legislation to establish carers register in their respective jurisdictions, with national consistency in relation to: a.

the inclusion of the following carer types on the carers register: i.

foster carers

ii.

relative/kinship carers

iii.

residential care staff

b.

the types of information which, at a minimum, should be recorded on the register

c.

the types of information which, at a minimum, must be made available to agencies or bodies with responsibility for assessing, authorising or supervising carers, or other responsibilities related to carer suitability and safety of children in out-of-home care.

Noted

This recommendation is a matter for state and territory governments.

8.18

Carers registers should be maintained by state and territory child protection agencies or bodies with regulatory or oversight responsibility for out-of-home care in that jurisdiction.

Noted

This recommendation is a matter for state and territory governments.

30

No.

RECOMMENDATION

RESPONSE

STATUS

8.19

State and territory governments should consider the need for carers registers to include, at a minimum, the following information (register information) about, or related to, applicant or authorised carers, and persons residing on the same property as applicant/authorised home-based carers (household members): a.

lodgement or grant of applications for authorisation

b.

status of the minimum checks set out in Recommendation 12.6 as requirements for authorisation, indicating their outcomes as either satisfactory or unsatisfactory

c.

withdrawal or refusal of applications for authorisation in circumstances of concern (including in relation to child sexual abuse)

d.

cancellation or surrender of authorisation in circumstances of concern (including in relation to child sexual abuse)

e.

previous or current association with an out-of-home care agency, whether by application for authorisation, assessment, grant of

authorisation, or supervision

f.

the date of reportable conduct allegations, and their status as either current, finalised with ongoing risk-related concerns, and/or requiring contact with the reportable conduct oversight body.

Noted

This recommendation is a matter for state and territory governments.

8.20

State and territory governments should consider the need for legislative and administrative arrangements to require responsible agencies to: a.

record register information in minimal detail

b.

record register information as a mandatory part of carer authorisation

c.

update register information about authorised carers.

Noted

This recommendation is a matter for state and territory governments.

31

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

8.21

State and territory governments should consider the need for legislative and administrative arrangements to require responsible agencies: a.

before they authorise or recommend authorisation of carers, to: i.

undertake a check for relevant register information, and

ii.

seek further relevant information from another out-of-home care agency where register information indicates applicant carers, or their household members (in the case of prospective home-based carers) have a prior or current association with that other agency

b.

in the course of their assessment, authorisation, or supervision of carers, to: i.

seek further relevant information from other agencies or bodies, where register information indicates they hold, or may hold, additional information relevant to carer suitability, including reportable conduct information.

State and territory governments should give consideration to enabling agencies to seek further information for these purposes under our recommended information exchange scheme (Recommendations 8.6 to 8.8).

Noted

This recommendation is a matter for state and territory governments.

8.22

State and territory governments should consider the need for effective mechanisms to enable agencies and bodies to obtain relevant information from registers in any state or territory holding such information. Consideration should be given to legislative and administrative arrangements, and digital platforms, which will enable: a.

agencies responsible for assessing, authorising or supervising carers

b.

other agencies, including jurisdictional child protection agencies and regulatory and oversight bodies, with responsibilities related to the suitability of persons to be carers and the safety of children in out-of-home care

to obtain relevant information from their own and other jurisdictions’ registers for the purpose of exercising their responsibilities and functions.

Noted

This recommendation is a matter for state and territory governments.

32

No.

RECOMMENDATION

RESPONSE

STATUS

8.23

In considering the legislative and administrative arrangements required for carers registers in their jurisdiction, state and territory governments should consider the need for guidelines and training to promote the proper use of carers registers for the protection of children in out-of-home care. Consideration should also be given to the need for specific safeguards to prevent inappropriate use of register information.

Noted

This recommendation is a matter for state and territory governments.

Volume 9, Advocacy, support and therapeutic treatment services recommendations 9.1

The Australian Government and state and territory governments should fund dedicated community support services for victims and survivors in each jurisdiction, to provide an integrated model of advocacy and support and counselling to children and adults who experienced childhood sexual abuse in institutional contexts. Funding and related agreements should require and enable these services to: a.

be trauma-informed and have an understanding of institutional child sexual abuse

b.

be collaborative, available, accessible, acceptable and high quality

c.

use case management and brokerage to coordinate and meet service needs

d.

support and supervise peer-led support models.

Accept

The Australian Government has already committed to fund community based support services in every state and territory to support people affected by institutional child sexual abuse to engage with the National Redress Scheme. In addition, the National Redress Scheme will provide for three elements of redress; access to counselling, a direct personal response, and a monetary payment. The establishment of additional services for victims and survivors of institutional child sexual abuse is a matter for state and territory governments.

9.2

The Australian Government and state and territory governments should fund Aboriginal and Torres Strait Islander healing approaches as an ongoing, integral part of advocacy and support and therapeutic treatment service system responses for victims and survivors of child sexual abuse. These approaches should be evaluated in accordance with culturally appropriate methodologies, to contribute to evidence of best practice.

Noted

This recommendation is a matter for state and territory governments. The Australian Government will continue to work with states and territories, where appropriate, to support Aboriginal and Torres Strait Islander healing approaches.

33

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

9.3

The Australian Government and state and territory governments should fund support services for people with disability who have experienced sexual abuse in childhood as an ongoing integral part of advocacy and support and therapeutic treatment service system responses for victims and survivors of child sexual abuse.

Accept in principle

The Australian Government has already committed to fund community based support services in every state and territory to support people affected by institutional child sexual abuse to engage with the National Redress Scheme. This includes support for people with disability to engage with the Scheme. In addition, the National Redress Scheme will provide for three elements of redress; access to counselling, a direct personal response, and a monetary payment. The establishment of additional services for victims and survivors of institutional child sexual abuse is a matter for state and territory governments.

9.4

The Australian Government should establish and fund a legal advice and referral service for victims and survivors of institutional child sexual abuse. The service should provide advice about accessing, amending and annotating records from institutions, and options for initiating police, civil litigation or redress processes as required. Support should include advice, referrals to other legal services for representation and general assistance for people to navigate the legal service system. Funding and related agreements should require and enable these services to be: a.

trauma-informed and have an understanding of institutional child sexual abuse

b.

collaborative, available, accessible, acceptable and high quality.

Accept in principle

The Attorney-General’s Department is progressing program guidelines for the provision of the grant to the National Association Community Legal Centres Inc, who operate knowmore, the legal advice service. The service will be in place to provide assistance to survivors when the National Redress Scheme commences operation on 1 July 2018. The service will provide information to survivors (whether they are eligible for the National Redress Scheme or not) on their legal options under the National Redress Scheme, other compensation schemes or under civil law. knowmore will assist clients who are eligible under the National Redress Scheme to complete an application and through key steps in the redress process. Survivors wishing to pursue civil law or compensation options outside the redress scheme will be referred to private lawyers to pursue those claims.

34

No.

RECOMMENDATION

RESPONSE

STATUS

9.5

The Australian Government should fund a national website and helpline as a gateway to accessible advice and information on childhood sexual abuse. This should provide information for victims and survivors, particularly victims and survivors of institutional child sexual abuse, the general public and practitioners about supporting children and adults who have experienced sexual abuse in childhood and available services. The gateway may be operated by an existing service with appropriate experience and should: a.

be trauma-informed and have an understanding of institutional child

sexual abuse

b.

be collaborative, available, accessible, acceptable and high quality

c.

provide telephone and online information and initial support for victims and survivors, including independent legal information and information about reporting to police

d.

provide assisted referrals to advocacy and support and therapeutic treatment services.

For further consideration

The Australian Government will further consider the most effective methods of providing trauma-informed, accessible, and high quality advice and information on childhood sexual abuse. The Australian Government has established a trauma informed, survivor focussed website for the National Redress Scheme to provide information, advice and support to survivors seeking redress. The Australian Government will also establish an online resource to provide information about this Response, the annual report on implementation of recommendations and other relevant information for survivors and the public.

9.6

The Australian Government and state and territory governments should address existing specialist sexual assault service gaps by increasing funding for adult and child sexual assault services in each jurisdiction, to provide advocacy and support and specialist therapeutic treatment for victims and survivors, particularly victims and survivors of institutional child sexual abuse. Funding agreements should require and enable services to: a.

be trauma-informed and have an understanding of institutional child

sexual abuse

b.

be collaborative, available, accessible, acceptable and high quality

c.

use collaborative community development approaches

d.

provide staff with supervision and professional development.

Accept in principle

The establishment of specialist sexual assault services is a matter for state and territory governments. The Australian Government has already committed to fund community based support services in every state and territory to support people affected by institutional child sexual abuse to engage with the National Redress Scheme. These services will be trauma-informed and use collaborative approaches to delivering quality services.

35

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

9.7

Primary Health Networks, within their role to commission joined up local primary care services, should support sexual assault services to work collaboratively with key services such as disability-specific services, Aboriginal and Torres Strait Islander services, culturally and linguistically diverse services, youth justice,

aged care and child and youth services to better meet the needs of victims and survivors.

Accept in principle

The Australian Government agrees further work to promote collaborative and coordinated services is needed. Primary Health Networks, sexual assault services and specialist services such as disability-specific services, Aboriginal and Torres Strait Islander services, culturally and linguistically diverse services, youth justice, aged care and child and youth services all play an important role of meeting the needs of victims and survivors. Relevant Australian Government agencies, led by the Department of Health, will consider how to better understand the presently disparate nature of services and to implement this recommendation.

9.8

The Australian Government and state and territory government agencies responsible for the delivery of human services should ensure relevant policy frameworks and strategies recognise the needs of victims and survivors and the benefits of implementing trauma informed approaches.

Accept

Community Services Ministers will progress work on this recommendation, in the context of relevant national strategies and frameworks designed to support vulnerable families and children.

9.9

The Australian Government, in conjunction with state and territory governments, should establish and fund a national centre to raise awareness and understanding of the impacts of child sexual abuse, support help-seeking and guide best practice advocacy and support and therapeutic treatment.

The national centre’s functions should be to: a.

raise community awareness and promote destigmatising messages about the impacts of child sexual abuse

b.

increase practitioners’ knowledge and competence in responding to child and adult victims and survivors translating knowledge about the impacts of child sexual abuse and the evidence on effective responses into practice and policy. This should include activities to: i.

identify, translate and promote research in easily available and accessible formats for advocacy and support and therapeutic treatment practitioners

For further consideration

To be discussed with state and territory governments through Community Service Ministers, in consultation with other relevant portfolios and sectors.

36

No.

RECOMMENDATION

RESPONSE

STATUS

9.9

ii.

produce national training materials and best practice clinical resources

iii.

partner with training organisations to conduct training and workforce development programs

iv.

influence national tertiary curricula to incorporate child sexual abuse and trauma-informed care

v.

inform government policy making

c.

lead the development of better service models and interventions through coordinating a national research agenda and conducting high-quality program evaluation. The national centre should partner with survivors in all its work, valuing their knowledge and experience.

The national centre should partner with survivors in all its work, valuing their knowledge and experience.

Volume 10, Children with harmful sexual behaviours recommendations 10.1

The Australian Government and state and territory governments should ensure the issue of children’s harmful sexual behaviours is included in the national strategy to prevent child sexual abuse that we have recommended (see Recommendations 6.1 to 6.3). Harmful sexual behaviours by children should be addressed through each of the following: a.

primary prevention strategies to educate family, community members, carers and professionals (including mandatory reporters) about preventing harmful sexual behaviours

b.

secondary prevention strategies to ensure early intervention when harmful sexual behaviours are developing

c.

tertiary intervention strategies to address harmful sexual behaviours.

Accept in principle

A National Office for Child Safety, once established within DSS on 1 July 2018, will consult with state and territory governments from July-August 2018 to consider the nature and scope of the national strategy to prevent child sexual abuse and the most appropriate way to implement this recommendation. The Australian Government will work with other jurisdictions to prioritise the inclusion of the complex issue of children’s harmful sexual behaviours in frameworks and strategies to support the wellbeing and safety of all children.

37

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

10.2

The Australian Government and state and territory governments should ensure timely expert assessment is available for individual children with problematic and harmful sexual behaviours, so they receive appropriate responses, including therapeutic interventions, which match their particular circumstances.

Noted

This recommendation is a matter for state and territory governments. The Australian Government considers this recommendation should be progressed as part of the National Strategy to Prevent Child Sexual Abuse and will work with state and territory governments through existing ministerial fora to progress responses to this recommendation.

10.3

The Australian Government and state and territory governments should adequately fund therapeutic interventions to meet the needs of all children with harmful sexual behaviours. These should be delivered through a network of specialist and generalist therapeutic services. Specialist services should also be adequately resourced to provide expert support to generalist services.

Noted

This recommendation is a matter for state and territory governments.

10.4

State and territory governments should ensure that there are clear referral pathways for children with harmful sexual behaviours to access expert assessment and therapeutic intervention, regardless of whether the child is engaging voluntarily, on the advice of an institution or through their involvement with the child protection or criminal justice systems.

Noted

This recommendation is a matter for state and territory governments.

10.5

Therapeutic intervention for children with harmful sexual behaviours should be based on the following principles: a.

a contextual and systemic approach should be used

b.

family and carers should be involved

c.

safety should be established

d.

there should be accountability and responsibility for the harmful sexual behaviours

e.

there should be focus on behaviour change

f.

developmentally and cognitively appropriate interventions should be used

g.

the care provided should be trauma-informed

h.

therapeutic services and interventions should be culturally safe

i.

therapeutic interventions should be accessible to all children with harmful sexual behaviours.

Noted

This recommendation is a matter for state and territory governments.

38

No.

RECOMMENDATION

RESPONSE

STATUS

10.6

The Australian Government and state and territory governments should ensure that all services funded to provide therapeutic intervention for children with harmful sexual behaviours provide professional training and clinical supervision for their staff.

Noted

This recommendation is a matter for state and territory governments.

10.7

The Australian Government and state and territory governments should fund and support evaluation of services providing therapeutic interventions for problematic and harmful sexual behaviours by children.

Noted

This recommendation is a matter for state and territory governments.

Volume 12, Contemporary out-of-home care recommendations 12.1

The Australian Government and state and territory governments should develop nationally agreed key terms and definitions in relation to child sexual abuse for the purpose of data collection and reporting by the Australian Institute of Health and Welfare (AIHW) and the Productivity Commission.

Accept

The Australian Government will work with other jurisdictions to achieve nationally agreed key terms and definitions in relation to child sexual abuse through relevant agencies and portfolios. Governments will work together to agree on research priorities and timeframes, noting the complexity and importance of establishing nationally agreed terms and definitions to provide a basis for further national research.

12.2

The Australian Government and state and territory governments should prioritise enhancements to the Child Protection National Minimum Data Set to include: a.

data identifying children with disability, children from culturally and linguistically diverse backgrounds and Aboriginal and Torres Strait Islander children

b.

the number of children who were the subject of a substantiated report of sexual abuse while in out-of-home care

c.

the demographics of those children

d.

the type of out-of-home care placement in which the abuse occurred

e.

information about when the abuse occurred

f.

information about who perpetrated the abuse, including their age and their relationship to the victim, if known.

Accept in Principle

The Australian Government will work with other jurisdictions to achieve enhancements to the Child Protection National Minimum Data Set through relevant agencies and portfolios. Governments will work together to agree on priorities and timeframes.

39

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

12.3

State and territory governments should agree on reporting definitions and data requirements to enable reporting in the

Report on government services

on outcome indicators for ‘improved health and wellbeing of the child’,

‘safe return home’ and ‘permanent care’.

Accept in principle

The Australian Government will work with other jurisdictions to agree on reporting definitions and data requirements through relevant agencies and portfolios.

12.4

Each state and territory government should revise existing mandatory accreditation schemes to: a.

incorporate compliance with the Child Safe Standards identified by the

Royal Commission

b.

extend accreditation requirements to both government and non- government out-of-home care service providers.

Noted

This recommendation is a matter for state and territory governments.

12.5

In each state and territory, an existing statutory body or office that is independent of the relevant child protection agency and out-of-home

care service providers, for example a children’s guardian, should have responsibility for: a.

receiving, assessing and processing applications for accreditation of

out-of-home care service providers

b.

conducting audits of accredited out-of-home care service providers to ensure ongoing compliance with accreditation standards and conditions.

Noted

This recommendation is a matter for state and territory governments.

12.6

In addition to a National Police Check, Working With Children Check and referee checks, authorisation of all foster and kinship/relative carers and all residential care staff should include: a.

community services checks of the prospective carer and any adult household members of home-based carers

b.

documented risk management plans to address any risks identified through community services checks

c.

at least annual review of risk management plans as part of carer reviews and more frequently as required.

Noted

This recommendation is a matter for state and territory governments.

40

No.

RECOMMENDATION

RESPONSE

STATUS

12.7

All out-of-home care service providers should conduct annual reviews of authorised carers that include interviews with all children in the placement with the carer under review, in the absence of the carer.

Noted

This recommendation is a matter for state and territory governments.

12.8

Each state and territory government should adopt a model of assessment appropriately tailored for kinship/relative care. This type of assessment should be designed to: a.

better identify the strengths as well as the support and training need of kinship/relative carers

b.

ensure holistic approaches to supporting placements that are culturally safe

c.

include appropriately resourced support plans.

Noted

This recommendation is a matter for state and territory governments.

12.9

All state and territory governments should collaborate in the development of a sexual abuse prevention education strategy, including online safety, for children in out-of-home care that includes: a.

input from children in out-of-home care and care-leavers

b.

comprehensive, age-appropriate and culture-appropriate education about sexuality and healthy relationships that is tailored to the needs of children in out-of-home care

c.

resources tailored for children in care, for foster and kinship/relative carers, for residential care staff and for caseworkers

d.

resources that can be adapted to the individual needs of children with disability and their carers.

Noted

This recommendation is a matter for state and territory governments.

41

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

12.10

State and territory governments, in collaboration with out-of-home care service providers and peak bodies, should develop resources to assist service providers to: a.

provide appropriate support and mechanisms for children in out-of-home care to communicate, either verbally or through behaviour, their views, concerns and complaints

b.

provide appropriate training and support to carers and caseworkers to ensure they hear and respond to children in out-of-home care,

including ensuring children are involved in decisions about their lives

c.

regularly consult with the children in their care as part of continuous improvement processes.

Noted

This recommendation is a matter for state and territory governments.

12.11

State and territory governments and out-of-home care service providers should ensure that training for foster and relative/kinship carers, residential care staff and child protection workers includes an understanding of trauma and abuse, the impact on children and the principles of trauma-informed care to assist them to meet the needs of children in out-of-home care, including children with harmful sexual behaviours.

Noted

This recommendation is a matter for state and territory governments.

12.12

When placing a child in out-of-home care, state and territory governments and out-of-home care service providers should take the following measures to support children with harmful sexual behaviours: a.

undertake professional assessments of the child with harmful sexual behaviours, including identifying their needs and appropriate supports and interventions to ensure their safety

b.

establish case management and a package of support services

c.

undertake careful placement matching that includes: i.

providing sufficient relevant information to the potential carer/s and residential care staff to ensure they are equipped to support the child, and additional training as necessary

ii.

rigorously assessing potential threats to the safety of other children, including the child’s siblings, in the placement.

Noted

This recommendation is a matter for state and territory governments.

42

No.

RECOMMENDATION

RESPONSE

STATUS

12.13

State and territory governments and out-of-home care service providers should provide advice, guidelines and ongoing professional development

for all foster and kinship/relative carers and residential care staff about preventing and responding to the harmful sexual behaviours of some children in out-of-home care.

Noted

This recommendation is a matter for state and territory governments.

12.14

All state and territory governments should develop and implement coordinated and multi-disciplinary strategies to protect children in residential care by: a.

identifying and disrupting activities that indicate risk of sexual exploitation

b.

supporting agencies to engage with children in ways that encourage them to assist in the investigation and prosecution of sexual exploitation offences.

Noted

This recommendation is a matter for state and territory governments.

12.15

Child protection departments in all states and territories should adopt a nationally consistent definition for child sexual exploitation to enable the collection and reporting of data on sexual exploitation of children in

out-of-home care as a form of child sexual abuse.

Noted

This recommendation is a matter for state and territory governments. (see recommendations 12.1 and 12.2)

12.16

All institutions that provide out-of-home care should develop strategies that increase the likelihood of safe and stable placements for children in care. Such strategies should include: a.

improved processes for ‘matching’ children with carers and other children in a placement, including in residential care

b.

the provision of necessary information to carers about a child, prior to and during their placement, to enable carers to properly support the child

c.

support and training for carers to deal with the different developmental needs of children as well as managing difficult situations and challenging behaviour.

Noted

This recommendation is a matter for state and territory governments.

43

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

12.17

Each state and territory government should ensure that: a.

the financial support and training provided to kinship/relative carers is equivalent to that provided to foster carers

b.

the need for any additional supports are identified during kinship/relative carer assessments and are funded

c.

additional casework support is provided to maintain birth family relationships.

Noted

This recommendation is a matter for state and territory governments.

12.18

The key focus of residential care for children should be based on an intensive therapeutic model of care framework designed to meet the complex needs of children with histories of abuse and trauma.

Noted

This recommendation is a matter for state and territory governments.

12.19

All residential care staff should be provided with regular training and professional supervision by appropriately qualified clinicians.

Noted

This recommendation is a matter for state and territory governments.

12.20

Each state and territory government, in consultation with appropriate Aboriginal and Torres Strait Islander organisations and community representatives, should develop and implement plans to: a.

fully implement the Aboriginal and Torres Strait Islander Child Placement Principle

b.

improve community and child protection sector understanding of the intent and scope of the principle

c.

develop outcome measures that allow quantification and reporting on the extent of the full application of the principle, and evaluation of its impact on child safety and the reunification of Aboriginal and Torres Strait Islander children with their families

d.

invest in community capacity building as a recognised part of kinship care, in addition to supporting individual carers, in recognition of the role of Aboriginal and Torres Strait Islander communities in bringing up children.

Noted

This recommendation is a matter for state and territory governments. The Australian Government notes the importance of ensuring that Aboriginal and Torres Strait Islander children in child protection systems receive culturally appropriate care and support.

44

No.

RECOMMENDATION

RESPONSE

STATUS

12.21

Each state and territory government should ensure a.

the adequate assessment of all children with disability entering

out-of-home care

b.

the availability and provision of therapeutic support

c.

support for disability-related needs

d.

the development and implementation of care plans that identify specific risk-management and safety strategies for individual children, including the identification of trusted and safe adults in the child’s life.

Noted

This recommendation is a matter for state and territory governments.

12.22

State and territory governments should ensure that the supports provided to assist all care-leavers to safely and successfully transition to independent living include: a.

strategies to assist care-leavers who disclose that they were sexually abused while in out-of-home care to access general post-care supports

b.

the development of targeted supports to address the specific needs of sexual abuse survivors, such as help in accessing therapeutic treatment to deal with impacts of abuse, and for these supports to be accessible until at least the age of 25.

Noted

This recommendation is a matter for state and territory governments.

Volume 13 Schools recommendations 13.1

All schools should implement the Child Safe Standards identified by the Royal Commission.

Noted

Work on this recommendation will be progressed through Community Service Ministers and be considered in the context of relevant national strategies and frameworks designed to support vulnerable families and children.

13.2

State and territory independent oversight authorities responsible for implementing the Child Safe Standards (see Recommendation 6.10) should delegate to school registration authorities the responsibility for monitoring and enforcing the Child Safe Standards in government and

non-government schools.

Noted

This recommendation is a matter for state and territory governments.

45

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

13.3

School registration authorities should place particular emphasis on monitoring government and non-government boarding schools to ensure they meet the Child Safe Standards. Policy guidance and practical support should be provided to all boarding schools to meet these standards, including advice on complaint handling.

Noted

This recommendation is a matter for state and territory governments.

13.4

The Australian Government and state and territory governments should

ensure that needs-based funding arrangements for Aboriginal and Torres Strait Islander boarding students are sufficient for schools and hostels to create child safe environments.

For further consideration

The Australian Government’s Quality Schools package, which commenced in January 2018, provides needs based funding arrangements for schools. The arrangements include a loading for Aboriginal and Torres Strait Islander school students. The Australian Government’s needs-based funding model is set

out in the

Australian Education Act 2013

(Cth)

(Education Act)

.

Recurrent funding provided under the Education Act to approved authorities must be used for the purpose of school education — that is, primary education or secondary education. The funding provided under the Education Act cannot be used to subsidise the cost of providing boarding to students. The Australian Government also provides assistance for Aboriginal and Torres Strait Islander boarding students (along with grants and assistance for hostels and other boarding facilities). Education authorities are best placed to determine how best to use funds in relation to their schools, including funding from the Australian Government, state and territory governments, and private sources.

13.5

Boarding hostels for children and young people should implement the Child Safe Standards identified by the Royal Commission. State and territory independent oversight authorities should monitor and enforce the Child Safe Standards in these institutions.

Noted

This recommendation is a matter for state and territory governments.

46

No.

RECOMMENDATION

RESPONSE

STATUS

13.6

Consistent with the Child Safe Standards, complaint handling policies for schools (see Recommendation 7.7) should include effective policies and procedures for managing complaints about children with harmful sexual behaviours.

Noted

This recommendation is a matter for state and territory governments.

13.7

State and territory governments should provide nationally consistent and easily accessible guidance to teachers and principals on preventing and responding to child sexual abuse in all government and non-government schools.

Noted

This recommendation is a matter for state and territory governments.

13.8

The Council of Australian Governments (COAG) should consider strengthening teacher registration requirements to better protect children from sexual abuse in schools. In particular, COAG should review minimum national requirements for assessing the suitability of teachers, and conducting disciplinary investigations.

Accept in principle

The Australian Institute for Teaching and School Leadership (AITSL) is conducting a National Review of Teacher Registration. The recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse that relate to teacher registration will be taken into account in the review. An expert panel is currently consulting with a wide range of stakeholders, including state and territory regulatory authorities. Consultations with teacher regulatory authorities include discussions on teacher legislative frameworks and regulation. A consultation paper has been published and public submissions were open until 7 May 2018. The Review’s Expert Panel will report back to the Education Council in September 2018. (see recommendation 8.9)

47

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

Volume 14 Sport, recreation, arts, culture, community and hobby groups 14.1

All sport and recreation institutions, including arts, culture, community and hobby groups, that engage with or provide services to children should implement the Child Safe Standards identified by the Royal Commission.

Accept in principle

As announced in the 2018 Budget the Australian Government will institute a grass roots child safe sport initiative across Australia called ’Safe Sport Australia’. Safe Sport Australia will lead specifically on generating awareness of positive child safe sport practices and the exchange of child safe information and resources. A social change initiative, Safe Sport Australia will digitally connect to the millions of Australians in the grass roots sport community, targeting parents, adults and children. It will also incorporate the National Principles, based on the 10 Child Safe Standards identified by the Royal Commission. Safe Sport Australia, guided by an industry advisory committee that reflects the voice of the sport sector, will also use insights from the uptake of its resources to continue to build its knowledge base and identify areas of risk and relevant trends to inform further action around child abuse prevention and promotion of child safe sport. The Safe Sport Australia initiative and recent child safe sport work led by the Australian Sport Commission combine to address Recommendations 14.1-14.4.

14.2

The National Office for Child Safety should establish a child safety advisory committee for the sport and recreation sector with membership from government and non-government peak bodies to advise the national office on sector-specific child safety issues.

Accept in principle

14.3

The education and information website known as Play by the Rules should be expanded and funded to develop resources - in partnership with the National Office for Child Safety - that are relevant to the broader sport and recreation sector.

Accept in principle

14.4

The independent state and territory oversight bodies that implement the Child Safe Standards should establish a free email subscription function for the sport and recreation sector so that all providers of these services to children can subscribe to receive relevant child safe information and links to resources.

Accept in principle

Volume 15 Contemporary detention environments recommendations 15.1

All institutions engaged in child-related work, including detention institutions and those involving detention and detention-like practices, should implement the Child Safe Standards identified by the Royal Commission.

Noted

This recommendation is a matter for state and territory governments and non-government institutions.

48

No.

RECOMMENDATION

RESPONSE

STATUS

15.2

Given the Australian Government’s commitment to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the National Preventive Mechanism(s) should be provided with the expertise to consider and make recommendations relating to preventing and responding to child sexual abuse as part of regularly examining the treatment of persons deprived of their liberty in places of detention.

Accept in principle

Australia ratified the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (OPCAT) on 21 December 2017. The Australian Government is currently negotiating with states and territories on an Inter-governmental Agreement to establish a general ‘framework’ for OPCAT implementation, including to settle uncontroversial issues such as designating the Office of the Commonwealth Ombudsman as the National Preventive Mechanism (NPM) Coordinator, arrangements for designating state and territory inspectorates as NPM bodies, and arrangements for visits by the UN Subcommittee on Prevention of Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The precise scope and functions of both the individual NPM body in each jurisdiction and the overall NPM Network are currently a matter for discussion among the Australian Government, states and territories. Including child sexual abuse within the matters NPM bodies will specifically address can be considered as part of that process.

15.3

Youth justice agencies in each state and territory should review the building and design features of youth detention to identify and address elements that may place children at risk. This should include consideration of how to most effectively use technology, such as closed-circuit television (CCTV) cameras and body-worn cameras, to capture interactions between children and between staff and children without unduly infringing children’s privacy.

Noted

This recommendation is a matter for state and territory governments.

49

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

15.4

As part of efforts to mitigate risks of child sexual abuse in the physical environment of youth detention, state and territory governments should review legislation, policy and procedures to ensure: a.

appropriate and safe placements of children in youth detention, including a risk assessment process before placement decisions that identifies if a child may be vulnerable to child sexual abuse or if a child is displaying harmful sexual behaviours

b.

children are not placed in adult prisons

c.

frameworks take into account the importance of children having access to trusted adults, including family, friends and community, in the prevention and disclosure of child sexual abuse and provide for maximum contact between children and trusted adults through visitation, and use of the telephone and audio-visual technology

d.

best practice processes are in place for strip searches and other authorised physical contact between staff and children, including sufficient safeguards to protect children such as: i.

adequate communication between staff and the child before, during and after a search is conducted or other physical contact occurs

ii.

clear protocols detailing when such practices are permitted and how they should be performed. The key elements of these protocols should be provided to children in an accessible format

iii.

staff training that highlights the potential for strip searching to re- traumatise children who have been sexually abused and how the misuse of search powers can lead to sexual humiliation or abuse.

Noted

This recommendation is a matter for state and territory governments.

50

No.

RECOMMENDATION

RESPONSE

STATUS

15.5

State and territory governments should consider further strategies that provide for the cultural safety of Aboriginal and Torres Strait Islander children in youth detention including: a.

recruiting and developing Aboriginal and Torres Strait Islander staff to work at all levels of the youth justice system, including in key roles in complaint handling systems

b.

providing access to interpreters, particularly with respect to induction and education programs, and accessing internal and external complaint handling systems

c.

ensuring that all youth detention facilities have culturally appropriate policies and procedures that facilitate connection with family, community and culture, and reflect an understanding of, and respect for, cultural practices in different clan groups

d.

employing, training and professionally developing culturally competent staff who understand the particular needs and experiences of Aboriginal and Torres Strait Islander children, including the specific barriers that Aboriginal and Torres Strait Islander children face in disclosing sexual abuse.

Noted

This recommendation is a matter for state and territory governments. The Australian Government notes the importance of ensuring appropriate strategies are in place to provide for the cultural safety of Aboriginal and Torres Strait Islander children in youth detention.

15.6

All staff should receive appropriate training on the needs and experiences of children with disability, mental health problems, and alcohol or other drug problems, and children from culturally and linguistically diverse backgrounds that highlights the barriers these children may face in disclosing sexual abuse.

Noted

This recommendation is a matter for state and territory governments.

15.7

State and territory governments should improve access to therapeutic treatment for survivors of child sexual abuse who are in youth detention, including by assessing their advocacy, support and therapeutic treatment needs and referring them to appropriate services, and ensure they are linked

to ongoing treatment when they leave detention.

Noted

This recommendation is a matter for state and territory governments.

51

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

15.8

State and territory governments should ensure that all staff in youth detention are provided with training and ongoing professional development in trauma-informed care to assist them to meet the needs of children in youth detention, including children at risk of sexual abuse and children with harmful sexual behaviours.

Noted

This recommendation is a matter for state and territory governments.

15.9

State and territory governments should review the current internal and external complaint handling systems concerning youth detention to ensure they are capable of effectively dealing with complaints of child sexual abuse, including so that: a.

children can easily access child-appropriate information about internal complaint processes and external oversight bodies that may receive or refer children’s complaints, such as visitor’s schemes, ombudsmen, inspectors of custodial services, and children’s commissioners or guardians

b.

children have confidential and unrestricted access to external oversight bodies

c.

staff involved in managing complaints both internally and externally include Aboriginal and Torres Strait Islander peoples and professionals qualified to provide trauma-informed care

d.

complaint handling systems are accessible for children with literacy difficulties or who speak English as a second language

e.

children are regularly consulted about the effectiveness of complaint handling systems and systems are continually improved.

Noted

This recommendation is a matter for state and territory governments.

15.10

State and territory governments should ensure they have an independent oversight body with the appropriate visitation, complaint handling and reporting powers, to provide oversight of youth detention. This could include an appropriately funded and independent Inspector of Custodial Services or similar body. New and existing bodies should have expertise in child-trauma, and the prevention and identification of child sexual abuse.

Noted

This recommendation is a matter for state and territory governments.

52

No.

RECOMMENDATION

RESPONSE

STATUS

15.11

The Department of Immigration and Border Protection should publicly report within 12 months on how it has implemented the Child Protection Panel’s recommendations.

For further consideration

On 1 December 2017, the Child Protection Panel provided the Secretary of the Department of Home Affairs, its

Making Children Safer: Implementation

Review

(2017 review). The review reported on the

Department’s progress in implementing the Panel’s recommendations arising from its 2016

Making Children

Safer Report

(2016 report). The review acknowledged

substantial improvements in the way the Department deals with the awareness of child wellbeing needs, and child safeguarding in the detention environment. The Australian Government will further consider publicly reporting on the implementation of the

Panel’s recommendations.

15.12

a.

The Australian Government should establish a mechanism to regularly audit the implementation of the Child Safe Standards in immigration detention by staff, contractors and agents of the Department of Immigration and Border Protection. The outcomes of each audit should be publicly reported.

Accept in principle

The Child Safe Standards in immigration detention are subject to regular internal audit and external scrutiny by bodies including but not limited to: the Australian National Audit Office (ANAO) and Commonwealth Ombudsman’s Office, who report publicly.

b.

The Department of Immigration and Border Protection should contractually require its service providers to comply with the Child Safe Standards identified by the Royal Commission, as applied to immigration detention.

Accept

The Department of Home Affairs requires its immigration detention contracted service providers to contractually comply with all the policies and instructions of the Department. The Child Safe Standards identified by the Royal Commission are incorporated in the Department’s Child Safeguarding Framework. Immigration Service Providers adhere to and incorporate the Child Safeguarding Framework when developing, reviewing and implementing any processes involving children.

53

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

15.13

The Department of Immigration and Border Protection should identify the scope and nature of the need for support services for victims in immigration detention. The Department of Immigration and Border Protection should ensure that appropriate therapeutic and other specialist and support services are funded to meet the identified needs of victims in immigration detention and ensure they are linked to ongoing treatment when they leave detention.

Accept

The Department of Home Affairs provides mental health support services to all immigration detainees, including access to specialised torture and trauma counselling and services for survivors of sexual violence, which are funded under the Immigration Detention Health Services Contract. Immigration detainees are able to access health services at the time of their induction into immigration detention and to disclose health matters, including as a survivor of torture, trauma or abuse, during their time in detention. When discharged from immigration detention, all detainees receive a Health Discharge Summary to inform future treatment.

15.14

The Department of Immigration and Border Protection should designate appropriately qualified child safety officers for each place in which children are detained. These officers should assist and build the capacity of staff and service providers at the local level to implement the Child Safe Standards.

Accept

The Department of Home Affairs has appropriately qualified Child Wellbeing Officers. These officers build the capacity of, and provide support to, staff and service providers to implement child safe standards wherever children are detained.

15.15

The Department of Immigration and Border Protection should implement an independent visitors program in immigration detention.

Accept

The Department of Home Affairs currently has independent visitor programs in place for immigration detention facilities to provide independent oversight. Scrutiny from a number of external bodies helps to ensure detainees held in immigration detention are safe and treated humanely and fairly. These bodies include but are not limited to: parliamentary committees, the Minister’s Council on Asylum Seekers and Detention, the Commonwealth Ombudsman, the Australian Human Rights Commission, the Australian Red Cross and the United Nations High Commissioner for Refugees.

54

No.

RECOMMENDATION

RESPONSE

STATUS

Volume 16 Religious institutions recommendations 16.1

The Anglican Church of Australia should adopt a uniform episcopal standards framework that ensures that bishops and former bishops are accountable to an appropriate authority or body in relation to their response to complaints of child sexual abuse.

Noted

These recommendations are a matter for the

Anglican Church of Australia. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.2

The Anglican Church of Australia should adopt a policy relating to the management of actual or perceived conflicts of interest that may arise in relation to allegations of child sexual abuse, which expressly covers: a.

members of professional standards bodies

b.

members of diocesan councils (otherwise known as bishop-in-council or standing committee of synod)

c.

members of the Standing Committee of the General Synod

d.

chancellors and legal advisers for dioceses.

Noted

16.3

The Anglican Church of Australia should amend Being together and any other statement of expectations or code of conduct for lay members of the Anglican Church to expressly refer to the importance of child safety.

Noted

16.4

The Anglican Church of Australia should develop a national approach to the selection, screening and training of candidates for ordination in the Anglican Church.

Noted

16.5

The Anglican Church of Australia should develop and each diocese should implement mandatory national standards to ensure that all people in religious or pastoral ministry (bishops, clergy, religious and lay personnel): a.

undertake mandatory, regular professional development, compulsory components being professional responsibility and boundaries, ethics in ministry and child safety

b.

undertake mandatory professional/pastoral supervision

c.

undergo regular performance appraisals.

Noted

55

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

16.6

The bishop of each Catholic Church diocese in Australia should ensure that parish priests are not the employers of principals and teachers in Catholic schools.

Noted

These recommendations are a matter for the

Catholic Church in Australia. The Australian Government expects all institutions to

act consistently and effectively to protect children

from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.7

The Australian Catholic Bishops Conference should conduct a national review of the governance and management structures of dioceses and parishes, including in relation to issues of transparency, accountability, consultation and the participation of lay men and women. This review should draw from the approaches to governance of Catholic health, community services and education agencies.

Noted

16.8

In the interests of child safety and improved institutional responses to child

sexual abuse, the Australian Catholic Bishops Conference should request the Holy See to: a.

publish criteria for the selection of bishops, including relating to the promotion of child safety

b.

establish a transparent process for appointing bishops which includes the direct participation of lay people.

Noted

16.9

The Australian Catholic Bishops Conference should request the Holy See to amend the 1983 Code of Canon Law to create a new canon or series of canons specifically relating to child sexual abuse, as follows: a.

All delicts relating to child sexual abuse should be articulated as canonical crimes against the child, not as moral failings or as breaches of the ‘special obligation’ of clerics and religious to observe celibacy.

b.

All delicts relating to child sexual abuse should apply to any person holding a ‘dignity, office or responsibility in the Church’ regardless of whether they are ordained or not ordained.

c.

In relation to the acquisition, possession, or distribution of pornographic images, the delict (currently contained in Article 6 §2 1° of the revised 2010 norms attached to the motu proprio

Sacramentorum sanctitatis tutela

)

should be amended to refer to minors under the age of 18, not minors under the age of 14.

Noted

56

No.

RECOMMENDATION

RESPONSE

STATUS

16.10

The Australian Catholic Bishops Conference should request the Holy See to amend canon law so that the pontifical secret does not apply to any aspect of allegations or canonical disciplinary processes relating to child sexual abuse.

Noted

These recommendations are a matter for the

Catholic Church in Australia. The Australian Government expects all institutions to

act consistently and effectively to protect children

from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.11

The Australian Catholic Bishops Conference should request the Holy See to amend canon law to ensure that the ‘pastoral approach’ is not an essential precondition to the commencement of canonical action relating to child sexual abuse.

Noted

16.12

The Australian Catholic Bishops Conference should request the Holy See to amend canon law to remove the time limit (prescription) for commencement

of canonical actions relating to child sexual abuse. This amendment should apply retrospectively.

Noted

16.13

The Australian Catholic Bishops Conference should request the Holy See to amend the ‘imputability’ test in canon law so that a diagnosis of paedophilia is not relevant to the prosecution of or penalty for a canonical offence relating to child sexual abuse.

Noted

16.14

The Australian Catholic Bishops Conference should request the Holy See to amend canon law to give effect to Recommendations 16.55 and 16.56.

Noted

16.15

The Australian Catholic Bishops Conference and Catholic Religious Australia, in consultation with the Holy See, should consider establishing an Australian tribunal for trying canonical disciplinary cases against clergy, whose decisions could be appealed to the Apostolic Signatura in the usual way.

Noted

16.16

The Australian Catholic Bishops Conference should request the Holy See to introduce measures to ensure that Vatican Congregations and canonical appeal courts always publish decisions in disciplinary matters relating to child sexual abuse, and provide written reasons for their decisions. Publication should occur in a timely manner. In some cases it may be appropriate to suppress information that might lead to the identification of a victim.

Noted

57

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

16.17

The Australian Catholic Bishops Conference should request the Holy See to amend canon law to remove the requirement to destroy documents relating to canonical criminal cases in matters of morals, where the accused cleric has died or ten years have elapsed from the condemnatory sentence. In order to allow for delayed disclosure of abuse by victims and to take account of the limitation periods for civil actions for child sexual abuse, the minimum requirement for retention of records in the secret archives should be at least 45 years.

Noted

These recommendations are a matter for the

Catholic Church in Australia. The Australian Government expects all institutions to

act consistently and effectively to protect children

from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.18

The Australian Catholic Bishops Conference should request the Holy See to consider introducing voluntary celibacy for diocesan clergy.

Noted

16.19

All Catholic religious institutes in Australia, in consultation with their international leadership and the Holy See as required, should implement measures to address the risks of harm to children and the potential psychological and sexual dysfunction associated with a celibate rule of religious life. This should include consideration of whether and how existing models of religious life could be modified to facilitate alternative forms of association, shorter terms of celibate commitment, and/or voluntary celibacy (where that is consistent with the form of association that has been chosen).

Noted

16.20

In order to promote healthy lives for those who choose to be celibate, the Australian Catholic Bishops Conference and all Catholic religious institutes in Australia should further develop, regularly evaluate and continually improve, their processes for selecting, screening and training of candidates for the clergy and religious life, and their processes of ongoing formation, support and supervision of clergy and religious.

Noted

16.21

The Australian Catholic Bishops Conference and Catholic Religious Australia should establish a national protocol for screening candidates before and during seminary or religious formation, as well as before ordination or the profession of religious vows.

Noted

58

No.

RECOMMENDATION

RESPONSE

STATUS

16.22

The Australian Catholic Bishops Conference and Catholic Religious Australia should establish a mechanism to ensure that diocesan bishops and religious superiors draw upon broad-ranging professional advice in their decision-making, including from staff from seminaries or houses of formation, psychologists, senior clergy and religious, and lay people, in relation to the admission of individuals to: a.

seminaries and houses of religious formation

b.

ordination and/or profession of vows.

Noted

These recommendations are a matter for the

Catholic Church in Australia. The Australian Government expects all institutions to

act consistently and effectively to protect children

from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.23

In relation to guideline documents for the formation of priests and religious: a.

The Australian Catholic Bishops Conference should review and revise the Ratio nationalis institutionis sacerdotalis: Programme for priestly formation (current version December 2015), and all other guideline documents relating to the formation of priests, permanent deacons, and those in pastoral ministry, to explicitly address the issue of child sexual abuse by clergy and best practice in relation to its prevention.

b.

All Catholic religious institutes in Australia should review and revise their particular norms and guideline documents relating to the formation of priests, religious brothers, and religious sisters, to explicitly address the issue of child sexual abuse and best practice in relation to its prevention.

Noted

16.24

The Australian Catholic Bishops Conference and Catholic Religious Australia should conduct a national review of current models of initial formation to ensure that they promote pastoral effectiveness, (including in relation to child safety and pastoral responses to victims and survivors) and protect against the development of clericalist attitudes.

Noted

59

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

16.25

The Australian Catholic Bishops Conference and Catholic Religious Australia should develop and each diocese and religious institute should implement mandatory national standards to ensure that all people in religious or pastoral ministry (bishops, provincials, clergy, religious, and lay personnel): a.

undertake mandatory, regular professional development, compulsory components being professional responsibility and boundaries, ethics in ministry, and child safety

b.

undertake mandatory professional/pastoral supervision

c.

undergo regular performance appraisals.

Noted

These recommendations are a matter for the

Catholic Church in Australia. The Australian Government expects all institutions to

act consistently and effectively to protect children

from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.26

The Australian Catholic Bishops Conference should consult with the Holy See, and make public any advice received, in order to clarify whether: a.

information received from a child during the sacrament of reconciliation that they have been sexually abused is covered by the seal of confession

b.

if a person confesses during the sacrament of reconciliation to perpetrating child sexual abuse, absolution can and should be withheld until they report themselves to civil authorities.

Noted

16.27

The Jehovah’s Witness organisation should abandon its application of the two- witness rule in cases involving complaints of child sexual abuse.

Noted

These recommendations are a matter for the Jehovah’s Witness organisation in Australia. The Australian Government expects all institutions to

act consistently and effectively to protect children

from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.28

The Jehovah’s Witness organisation should revise its policies so that women are involved in processes related to investigating and determining allegations of child sexual abuse.

Noted

16.29

The Jehovah’s Witness organisation should no longer require its members to shun those who disassociate from the organisation in cases where the reason for disassociation is related to a person being a victim of child sexual abuse.

Noted

60

No.

RECOMMENDATION

RESPONSE

STATUS

16.30

All Jewish institutions in Australia should ensure that their complaint handling policies explicitly state that the

halachic

concepts of

mesirah

,

moser

and

loshon

horo

do not apply to the communication and reporting of allegations of child

sexual abuse to police and other civil authorities.

Noted

This recommendation is a matter for Jewish institutions in Australia. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for Child Safe Institutions.

16.31

All institutions that provide activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children, should implement the 10 Child Safe Standards identified by the Royal Commission.

Noted

These recommendations are a matter for religious institutions. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.32

Religious organisations should adopt the Royal Commission’s 10 Child Safe Standards as nationally mandated standards for each of their affiliated institutions.

Noted

16.33

Religious organisations should drive a consistent approach to the implementation of the Royal Commission’s 10 Child Safe Standards in each of their affiliated institutions.

Noted

16.34

Religious organisations should work closely with relevant state and territory oversight bodies to support the implementation of and compliance with the Royal Commission’s 10 Child Safe Standards in each of their affiliated institutions.

Noted

16.35

Religious institutions in highly regulated sectors, such as schools and out-of- home care service providers, should report their compliance with the Royal Commission’s 10 Child Safe Standards, as monitored by the relevant sector regulator, to the religious organisation to which they are affiliated.

Noted

16.36

Consistent with Child Safe Standard 1, each religious institution in Australia should ensure that its religious leaders are provided with leadership training both pre- and post-appointment, including in relation to the promotion of child safety.

Noted

61

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

16.37

Consistent with Child Safe Standard 1, leaders of religious institutions should ensure that there are mechanisms through which they receive advice from individuals with relevant professional expertise on all matters relating to child sexual abuse and child safety. This should include in relation to prevention, policies and procedures and complaint handling. These mechanisms should facilitate advice from people with a variety of professional backgrounds and include lay men and women.

Noted

These recommendations are a matter for religious institutions. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.38

Consistent with Child Safe Standard 1, each religious institution should ensure that religious leaders are accountable to an appropriate authority or body, such as a board of management or council, for the decisions they make with respect to child safety.

Noted

16.39

Consistent with Child Safe Standard 1, each religious institution should have a policy relating to the management of actual or perceived conflicts of interest that may arise in relation to allegations of child sexual abuse. The policy should cover all individuals who have a role in responding to complaints of

child sexual abuse.

Noted

16.40

Consistent with Child Safe Standard 2, wherever a religious institution has children in its care, those children should be provided with age-appropriate prevention education that aims to increase their knowledge of child sexual abuse and build practical skills to assist in strengthening self-protective skills and strategies. Prevention education in religious institutions should specifically address the power and status of people in religious ministry and educate children that no one has a right to invade their privacy and make them

feel unsafe.

Noted

16.41

Consistent with Child Safe Standard 3, each religious institution should make provision for family and community involvement by publishing all policies relevant to child safety on its website, providing opportunities for comment on its approach to child safety, and seeking periodic feedback about the effectiveness of its approach to child safety.

Noted

62

No.

RECOMMENDATION

RESPONSE

STATUS

16.42

Consistent with Child Safe Standard 5, each religious institution should require that candidates for religious ministry undergo external psychological testing, including psychosexual assessment, for the purposes of determining their suitability to be a person in religious ministry and to undertake work involving children.

Noted

These recommendations are a matter for religious institutions. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.43

Each religious institution should ensure that candidates for religious ministry undertake minimum training on child safety and related matters, including training that: a.

equips candidates with an understanding of the Royal Commission’s 10 Child Safe Standards

b.

educates candidates on: i.

professional responsibility and boundaries, ethics in ministry and child safety

ii.

policies regarding appropriate responses to allegations or complaints of child sexual abuse, and how to implement these policies

iii.

how to work with children, including childhood development

iv.

identifying and understanding the nature, indicators and impacts of child sexual abuse.

Noted

16.44

Consistent with Child Safe Standard 5, each religious institution should ensure that all people in religious or pastoral ministry, including religious leaders, are subject to effective management and oversight and undertake annual performance appraisals.

Noted

16.45

Consistent with Child Safe Standard 5, each religious institution should ensure that all people in religious or pastoral ministry, including religious leaders, have professional supervision with a trained professional or pastoral supervisor who

has a degree of independence from the institution within which the person

is in ministry.

Noted

63

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

16.46

Religious institutions which receive people from overseas to work in religious or pastoral ministry, or otherwise within their institution, should have targeted programs for the screening, initial training and professional supervision and development of those people. These programs should include material covering professional responsibility and boundaries, ethics in ministry and child safety.

Noted

These recommendations are a matter for religious institutions. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.47

Consistent with Child Safe Standard 7, each religious institution should require that all people in religious or pastoral ministry, including religious leaders, undertake regular training on the institution’s child safe policies and procedures. They should also be provided with opportunities for external training on best practice approaches to child safety.

Noted

16.48

Religious institutions which have a rite of religious confession for children should implement a policy that requires the rite only be conducted in an open space within the clear line of sight of another adult. The policy should specify that, if another adult is not available, the rite of religious confession for the child should not be performed.

Noted

16.49

Codes of conduct in religious institutions should explicitly and equally apply to people in religious ministry and to lay people.

Noted

16.50

Consistent with Child Safe Standard 7, each religious institution should require all people in religious ministry, leaders, members of boards, councils and other governing bodies, employees, relevant contractors and volunteers to undergo initial and periodic training on its code of conduct. This training should include: a.

what kinds of allegations or complaints relating to child sexual abuse should be reported and to whom

b.

identifying inappropriate behaviour which may be a precursor to abuse, including grooming

c.

recognising physical and behavioural indicators of child sexual abuse

d.

that all complaints relating to child sexual abuse must be taken seriously, regardless of the perceived severity of the behaviour.

Noted

64

No.

RECOMMENDATION

RESPONSE

STATUS

16.51

All religious institutions’ complaint handling policies should require that, upon receiving a complaint of child sexual abuse, an initial risk assessment is conducted to identify and minimise any risks to children.

Noted

These recommendations are a matter for religious institutions. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.52

All religious institutions’ complaint handling policies should require that, if a complaint of child sexual abuse against a person in religious ministry is plausible, and there is a risk that person may come into contact with children in the

course of their ministry, the person be stood down from ministry while the complaint is investigated.

Noted

16.53

The standard of proof that a religious institution should apply when deciding whether a complaint of child sexual abuse has been substantiated is the balance of probabilities, having regard to the principles in

Briginshaw v Briginshaw

.

Noted

16.54

Religious institutions should apply the same standards for investigating complaints of child sexual abuse whether or not the subject of the complaint is a person in religious ministry.

Noted

16.55

Any person in religious ministry who is the subject of a complaint of child sexual abuse which is substantiated on the balance of probabilities, having regard to the principles in Briginshaw v Briginshaw, or who is convicted of an offence relating to child sexual abuse, should be permanently removed from ministry. Religious institutions should also take all necessary steps to effectively prohibit the person from in any way holding himself or herself out as being a person with religious authority.

Noted

16.56

Any person in religious ministry who is convicted of an offence relating to

child sexual abuse should: a.

in the case of Catholic priests and religious, be dismissed from the priesthood and/or dispensed from his or her vows as a religious

b.

in the case of Anglican clergy, be deposed from holy orders

c.

in the case of Uniting Church ministers, have his or her recognition as a minister withdrawn

d.

in the case of an ordained person in any other religious denomination that has a concept of ordination, holy orders and/or vows, be dismissed, deposed or otherwise effectively have their religious status removed.

Noted

65

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

16.57

Where a religious institution becomes aware that any person attending any of its religious services or activities is the subject of a substantiated complaint of child sexual abuse, or has been convicted of an offence relating to child sexual abuse, the religious institution should: a.

assess the level of risk posed to children by that perpetrator’s ongoing involvement in the religious community

b.

take appropriate steps to manage that risk.

Noted

These recommendations are a matter for religious institutions. The Australian Government expects all institutions to act consistently and effectively to protect children from sexual abuse. The Australian Government encourages all institutions to act consistently with the National Principles for

Child Safe Institutions.

16.58

Each religious organisation should consider establishing a national register which records limited but sufficient information to assist affiliated institutions identify and respond to any risks to children that may be posed by people in religious or pastoral ministry.

Noted

Volume 17, Beyond the Commission recommendations 17.1

The Australian Government and state and territory governments should each issue a formal response to this Final Report within six months of it being tabled, indicating whether our recommendations are accepted, accepted in principle, rejected or subject to further consideration.

Accept

The Australian Government agrees to issue formal responses to the Final Report in June 2018.

17.2

The Australian Government and state and territory governments should, beginning 12 months after this Final Report is tabled, report on their implementation of the Royal Commission’s recommendations made in this

Final Report

and its earlier

Working With Children Checks

,

Redress and civil

litigation and Criminal justice

reports, through five consecutive annual reports

tabled before their respective parliaments.

Accept

The Australian Government agrees to report on progress in implementing the Royal Commission’s recommendations from the

Final Report

, the

Working

with Children Checks, Redress and Civil Litigation

and

Criminal Justice

reports.

These progress reports will be tabled before parliament. Information will also be shared with the public with a focus on ensuring information is accessible to survivors, families, children and institutions.

66

No.

RECOMMENDATION

RESPONSE

STATUS

17.3

Major institutions and peak bodies of institutions that engage in child-related work should, beginning 12 months after this Final Report is tabled, report on their implementation of the Royal Commission’s recommendations to the National Office for Child Safety through five consecutive annual reports. The National Office for Child Safety should make these reports publicly available. At a minimum, the institutions reporting should include those that were the subject of the Royal Commission’s institutional review hearings held from 5 December 2016 to 10 March 2017.

Accept in principle

A National Office for Child Safety, once established within the Department of Social Services (DSS)

on 1 July 2018, will consult with state and territory governments and other stakeholders to determine the most appropriate way to implement this recommendation, noting the Australian Government cannot compel institutions to comply with this recommendation.

17.4

The Australian Government should initiate a review to be conducted 10 years after the tabling of this Final Report. This review should: a.

establish the extent to which the Royal Commission’s recommendations have been implemented 10 years after the tabling of the Final Report

b.

examine the extent to which the measures taken in response to the Royal Commission have been effective in preventing child sexual abuse, improving the responses of institutions to child sexual abuse and ensuring that victims and survivors of child sexual abuse obtain justice, treatment and support

c.

advise on what further steps should be taken by governments and institutions to ensure continuing improvement in policy and service delivery in relation to child sexual abuse in institutional contexts.

Accept

The Australian Government will consult with state and territory governments and other stakeholders to determine the most appropriate way to implement

this recommendation.

17.5

The Australian Government should host and maintain the Royal Commission website for the duration of the national redress scheme for victims and survivors of institutional child sexual abuse.

Accept

The Australian Government will not maintain the Royal Commission website for the duration of the National Redress Scheme. The website will continue

to be supported until the end of 2018, and then it will be archived and the information will continue

to be accessible. The Australian Government has established a trauma informed, survivor focussed website for the National Redress Scheme to provide information, advice and support to survivors seeking redress. The Australian Government will establish an online resource to publish the Response and report on implementation.

67

PART ONE: FINAL REPORT RESPONSE

No.

RECOMMENDATION

RESPONSE

STATUS

17.6

A national memorial should be commissioned by the Australian Government for victims and survivors of child sexual abuse in institutional contexts. Victims and survivors should be consulted on the memorial design and it should be located in Canberra.

Accept in principle

Consultations will be undertaken to seek stakeholders’ views on this recommendation during consultations on the National Apology to Victims and Survivors of Institutional Child Sexual Abuse.

68 Part Two: Working with Children Checks Report No. RECOMMENDATION RESPONSE STATUS

1

State and territory governments should: a.

within 12 months of the publication of this report, amend their WWCC laws to implement the standards identified in this report

b.

once the standards are implemented, obtain agreement from the Council of Australian Governments (COAG), or a relevant ministerial council, before deviating from or altering the standards in this report, adopting changes across all jurisdictions c.

within 18 months from the publication of this report, amend their WWCC laws to enable clearances from other jurisdictions to be recognised and

accepted.

Noted The Australian Government is committed to working with State and Territory Governments to consider the recommendations of the Report. The Australian Government supports an approach that ensures greater national consistency of working with children check (WWCC) schemes in order to achieve greater protection of children.

In support of this, the Australian Government established, and chairs, a working group of State and Territory representatives with policy and operational responsibility for WWCCs.

2

The South Australian Government should, within 12 months of the publication of this report, replace its criminal history assessments with a WWCC scheme that incorporates the standards set out in this report.

Noted

This is a matter for South Australia.

3

The Commonwealth Government should, within 12 months of the publication of this report: a.

facilitate a national model for WWCCs by: i.

establishing a centralised database, operated by CrimTrac, that is readily accessible to all jurisdictions to record WWCC decisions

ii.

together with state and territory governments, identifying consistent terminology to capture key WWCC decisions (for example, refusal, cancellation, suspension and grant) for recording into the centralised database

Accept in principle The Australian Government supports the development of an ICT system, to be hosted by the Australian

Criminal Intelligence Commission (ACIC), which facilitates national sharing of WWCC outcomes. Following the completion of a scoping study, on 20 December 2017, the former Attorney-General

wrote

to responsible State and Territory Ministers

offering to fund the development of the database. The

Attorney

-General also requested in

-principle

support from the jurisdictions to meet the costs of sustaining the database and bear any costs incurred in connecting their respective systems to the national system. The timing of the delivery of this capability will depend on detailed design work being undertaken.

69

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

iii.

enhancing CrimTrac’s capacity to continuously monitor WWCC cardholders’ national criminal history records

Accept in principle

Continuous monitoring of criminal history records nationally is legally and technically complex. The Australian Government is exploring options to develop this capability for WWCC cardholders.

b.

explore avenues to make international records more accessible for the purposes of WWCCs

Accept

The sharing of international criminal history with other countries involves complex legal, policy and practical issues. These issues apply to all criminal records, not just records which would be relevant for the purposes of WWCCs. The Australian Government is exploring avenues to make international records more accessible for the purpose of WWCCs. In particular, the Australian Government is reviewing the effectiveness of current sharing arrangements in this area and considering any necessary enhancements.

c.

identify and require all Commonwealth Government personnel, including contractors, undertaking child-related work, as defined by the child-related work standards set out in this report, to obtain WWCCs.

Accept

On 22 August 2017, the Australian Government agreed to a Commonwealth Child Safe Framework to protect children and young people in Commonwealth care (Commonwealth Framework). Under this framework, all Australian Government entities are required to ensure that their staff working with children and young people are aware of, and comply with, relevant legislation including legislation relating to working with children checks. Australian Government entities are required to assure their accountable authority by 30 June 2018 that all relevant staff have complied with the legislative requirements. The requirement also applies to contractors working in Australian Government entities under employment contracts (such as non-ongoing and temporary staff). Consideration is being given to an appropriate way to extend the Commonwealth Framework to Commonwealth funded third parties.

70

No.

RECOMMENDATION

RESPONSE

STATUS

4

The Commonwealth, state and territory governments should, within 12 months of the publication of this report: a.

agree on a set of standards or guidelines to enhance the accurate and timely recording of information by state and territory police into

CrimTrac’s system

Accept in principle

The Australian Criminal Intelligence Commission (ACIC) hosts the National Police Reference System (NPRS), which is the common national data store used by the ACIC to conduct a national police check. Upload of information into the NPRS is governed by a standard agreement between the ACIC and State and Territory police. Since the recommendation was made, the upload of information by jurisdictions into the NPRS has become more timely and consistent. Recent technical changes implemented by the ACIC has resulted in improved accuracy and reliability of search results through NPRS, as well as improving the currency and richness of Person of Interest database searches.

b.

review the information they have agreed to exchange under the National Exchange of Criminal History Information for People Working with Children (ECHIPWC), and establish a set of definitions for the key terms used to describe the different types of criminal history records so they are consistent across the jurisdictions (these key terms include pending charges, non-conviction charges and information about the circumstances of an offence)

Accept in principle

This recommendation is being considered by the ECHIPWC Steering Committee, of which the Commonwealth is a member. New South Wales Department of Premier and Cabinet chair the ECHIPWC Steering Committee and is progressing

this review.

c.

take immediate action to record into CrimTrac’s system historical criminal records that are in paper form or on microfilm and which are not currently identified by CrimTrac’s initial database search

d.

once these historical criminal history records are entered into CrimTrac’s system by all jurisdictions, check all WWCC cardholders against them through the expanded continuous monitoring process.

Accept

Arrangements are in place to ensure that a national criminal history check, conducted by the ACIC, captures historical criminal records. These arrangements pre-dated WWCCs and therefore all current cardholders will have been checked against historic records.

71

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

5

State and territory governments should amend their WWCC laws to incorporate a consistent and simplified definition of child-related work, in line with the recommendations below.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

6

State and territory governments should amend their WWCC laws to provide that work must involve contact between an adult and one or more children to qualify as child-related work.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

7

State and territory governments should: a.

amend their WWCC laws to provide that the phrase ‘contact with children’ refers to physical contact, face-to-face contact, oral communication, written communication or electronic communication

b.

through COAG, or a relevant ministerial council, agree on standard definitions for each kind of contact and amend their WWCC laws to incorporate those definitions.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

8

State and territory governments should: a.

amend their WWCC laws to provide that contact with children must be a usual part of, and more than incidental to, the child-related work

b.

through COAG, or a relevant ministerial council, agree on standard definitions for the phrases ‘usual part of work’ and ‘more than incidental to the work’, and amend their WWCC laws to incorporate those definitions.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

72

No.

RECOMMENDATION

RESPONSE

STATUS

9

State and territory governments should amend their WWCC laws to specify that it is irrelevant whether the contact with children is supervised or unsupervised.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

10

State and territory governments should amend their WWCC laws to provide that a person is engaged in child-related work if they are engaged in the work in any capacity and whether or not for reward.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

11

State and territory governments should amend their WWCC laws to provide that work that is undertaken under an arrangement for a personal or domestic purpose is not child-related, even if it would otherwise be so considered.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

73

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

12

State and territory governments should amend their WWCC laws to: a.

define the following as child-related work: i.

accommodation and residential services for children, including overnight excursions or stays

ii.

activities or services provided by religious leaders, officers or personnel of religious organisations

iii.

childcare or minding services

iv.

child protection services, including out-of-home care (OOHC)

v.

clubs and associations with a significant membership of, or involvement by, children

vi.

coaching or tuition services for children

vii.

commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions

viii.

disability services for children

ix.

education services for children

x.

health services for children

xi.

justice and detention services for children, including immigration detention facilities where children are regularly detained

xii.

transport services for children, including school crossing services

xiii.

other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles.

b.

require WWCCs for adults residing in the homes of authorised carers of children

c.

remove all other remaining categories of work or roles.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

74

No.

RECOMMENDATION

RESPONSE

STATUS

13

State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each category of child-related work and amend their WWCC laws to incorporate those definitions.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

14

State and territory governments should amend their WWCC laws to: a.

exempt: i.

children under 18 years of age, regardless of their employment status

ii.

employers and supervisors of children in a workplace, unless the work is child-related

iii.

people who engage in child-related work for seven days or fewer in a calendar year, except in respect of overnight excursions or stays

iv.

people who engage in child-related work in the same capacity

as the child

v.

police officers, including members of the Australian Federal Police

vi.

parents or guardians who volunteer for services or activities that are usually provided to their children, in respect of that activity, except in respect of: - overnight excursions or stays - providing services to children with disabilities, where the services

involve close, personal contact with those children

b.

remove all other exemptions and exclusions

c.

prohibit people who have been denied a WWCC, and subsequently not granted one, from relying on any exemption.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

75

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

15

State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each exemption category and amend their WWCC laws to incorporate those definitions.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

16

State and territory governments should amend their WWCC laws to incorporate a consistent and simplified list of offences, including: a.

engaging in child-related work without holding, or having applied for, a WWCC

b.

engaging a person in child-related work without them holding, or having applied for, a WWCC

c.

providing false or misleading information in connection with a WWCC application

d.

applicants and/or WWCC cardholders failing to notify screening agencies of relevant changes in circumstances

e.

unauthorised disclosure of information gathered during the course of a WWCC.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

76

No.

RECOMMENDATION

RESPONSE

STATUS

17

State and territory governments should amend their WWCC laws to include a standard definition of criminal history, for WWCC purposes, comprised of: a.

convictions, whether or not spent

b.

findings of guilt that did not result in a conviction being recorded

c.

charges, regardless of status or outcome, including: i.

pending charges - that is, charges laid but not finalised

ii.

charges disposed of by a court, or otherwise, other than by way of conviction (for example, withdrawn, set aside or dismissed)

iii.

charges that led to acquittals or convictions that were quashed or otherwise over-turned on appeal

for all offences, irrespective of whether or not they concern the person’s history as an adult or a child and/or relate to offences outside Australia.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

18

State and territory governments should amend their WWCC laws to require police services to provide screening agencies with records that meet the definition of criminal history records for WWCC purposes and any other available information relating to the circumstances of such offences.

Accept

This recommendation has been implemented through the Exchange of Criminal History Information for People Working with Children Intergovernmental Agreement.

19

State and territory governments should amend their WWCC laws to: a.

require that relevant disciplinary and/or misconduct information is checked for all WWCC applicants

b.

include a standard definition of disciplinary and/or misconduct information that encompasses disciplinary action and/or findings of misconduct where the conduct was against, or involved, a child, irrespective of whether this information arises from reportable conduct schemes or other systems or bodies responsible for disciplinary or misconduct proceedings

c.

require the bodies responsible for the relevant disciplinary and/or misconduct information to notify their respective screening agencies of relevant disciplinary and/or misconduct information that meets the definition.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

77

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

20

State and territory governments should amend their WWCC laws to respond to records in the same way, specifically that: a.

the absence of any relevant criminal history, disciplinary or misconduct information in an applicant’s history leads to an automatic grant of a WWCC

b.

any conviction and/or pending charge in an applicant’s criminal history for the following categories of offence leads to an automatic WWCC refusal, provided the applicant was at least 18 years old at the time of the offence: i.

murder of a child

ii.

manslaughter of a child

iii.

indecent or sexual assault of a child

iv.

child pornography-related offences

v.

incest where the victim was a child

vi.

abduction or kidnapping of a child

vii.

animal-related sexual offences.

c.

all other relevant criminal, disciplinary or misconduct information should trigger an assessment of the person’s suitability for a WWCC (consistent

with the risk assessment factors set out below).

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

78

No.

RECOMMENDATION

RESPONSE

STATUS

21

State and territory governments should amend their WWCC laws to specify that relevant criminal records for the purposes of recommendation 20(c) include but are not limited to the following: a.

juvenile records and/or non-conviction charges for the offence categories specified in recommendation 20(b)

b.

sexual offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b)

c.

violent offences, including assaults, arson and other fire-related offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b)

d.

child welfare offences

e.

offences involving cruelty to animals

f.

drug offences.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

22

The Commonwealth Government, through COAG, or a relevant ministerial council, should take a lead role in identifying the specific criminal offences that fall within the categories specified in recommendations 20(b) and 21.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

79

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

23

State and territory governments should amend their WWCC laws to specify that the criteria for assessing risks to children include: a.

the nature, gravity and circumstances of the offence and/or misconduct, and how this is relevant to children or child-related work

b.

the length of time that has passed since the offence and/or misconduct occurred

c.

the age of the child

d.

the age difference between the person and the child

e.

the person’s criminal and/or disciplinary history, including whether there is a pattern of concerning conduct

f.

all other relevant circumstances in respect of their history and the impact on their suitability to be engaged in child-related work.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

24

State and territory governments should amend their WWCC laws to expressly provide that, in weighing up the risk assessment criteria, the paramount consideration must always be the best interests of children, having regard to their safety and protection.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

80

No.

RECOMMENDATION

RESPONSE

STATUS

25

State and territory governments should amend their WWCC laws to permit WWCC applicants to begin child-related work before the outcome of their application is determined, provided the safeguards listed below are introduced. Applicants a.

applicants must submit a WWCC application to the appropriate screening agency before beginning child-related work and not withdraw the application while engaging in child-related work

b.

applicants must provide a WWCC application receipt to their employers before beginning child-related work

Other safeguards c.

employers must cite application receipts, record application numbers and verify applications with the relevant screening agency

d.

there must be capacity to impose interim bars on applicants where records are identified that may indicate a risk and require further assessment.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

26

State and territory governments that do not have an online WWCC processing system should establish one.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

27

State and territory governments should process WWCC applications within five working days, and no longer than 21 working days for more complex cases.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

81

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

28

All state and territory governments should amend their WWCC laws to

specify that: a.

WWCC decisions are based on the circumstances of the individual and are detached from the employer the person is seeking to work for, or the role or organisation the person is seeking to work in

b.

the outcome of a WWCC is either that a clearance is issued or it is not; there should be no conditional or different types of clearances

c.

volunteers and employees are issued with the same type of clearance.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

29

All state and territory governments should ensure that any person the subject of an adverse WWCC decision can appeal to a body independent of the WWCC screening agency, but within the same jurisdiction, for a review of the decision, except persons who have been convicted of one of the following categories of offences: •

murder of a child

•

indecent or sexual assault of a child

•

child pornography-related offences

•

incest where the victim was a child

and a.

received a sentence of full time custody for the conviction, such persons being permanently excluded from an appeal

or b.

by virtue of that conviction, the person is subject to an order that imposes any control on the person’s conduct or movement, or excludes the person from working with children, such persons being excluded from an appeal for the duration of that order.

Notwithstanding the above any person may bring an appeal in which they allege that offences have been mistakenly recorded as applying to that person.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

82

No.

RECOMMENDATION

RESPONSE

STATUS

30

Subject to the implementation of the standards set out in this report, all state and territory governments should amend their WWCC laws to enable WWCCs from other jurisdictions to be recognised and accepted.

Noted

The development of nationally consistent standards, being led by the Australian Government, will contribute to greater harmonisation of State and Territory schemes.

31

Subject to the commencement of continuous monitoring of national criminal history records, state and territory governments should amend their WWCC laws to specify that: a.

WWCCs are valid for five years

b.

employers and WWCC cardholders engaged in child-related work must inform the screening agency when a person commences or ceases being engaged in specific child-related work

c.

screening agencies are required to notify a person’s employer of any change in the person’s WWCC status.

Noted

Continuous monitoring of criminal history records nationally is legally and technically complex. The Australian Government is exploring options to develop this capability for WWCC cardholders.

32

All state and territory governments should grant screening agencies, or another suitable regulatory body, the statutory power to monitor compliance with WWCC laws.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

33

All state and territory governments should ensure their WWCC laws include powers to compel the production of relevant information for the purposes of compliance monitoring.

Accept in principle

The Australian Government supports an approach that ensures greater national consistency of WWCC schemes and has adopted a leadership role to assist jurisdictions to progress nationally consistent standards. Significant progress has been made through the Australian Government chaired working group. It is anticipated that the standards will be put to relevant State and Territory Ministers in 2018.

83

PART TWO:

WORKING WITH CHILDREN CHECKS

No.

RECOMMENDATION

RESPONSE

STATUS

34

The Commonwealth, state and territory governments should: a.

through COAG, or a relevant ministerial council, adopt the standards and set a timeframe within which all jurisdictions must report back to COAG, or a relevant ministerial council, on implementation

b.

establish a process whereby changes to the standards or to state and territory schemes need to be agreed to by COAG, or a relevant ministerial council, and must be adopted across all jurisdictions.

Noted

Nationally consistent standards will be put to relevant State and Territory Ministers in 2018. Implementation and review of these standards will be a matter for the states and territories.

35

The Commonwealth, state and territory governments should provide an annual report to COAG, or a relevant ministerial council, for three years following the publication of this report, to be tabled in the parliaments of all nine jurisdictions, detailing their progress in implementing the recommendations in this report and achieving a nationally consistent approach to WWCCs.

Accept in principle

The Australian Government will table an update on the Royal Commission’s recommendations in December of each year.

36

COAG, or a relevant ministerial council, should ensure a review is made after three years of the publication of this report, of the state and territory governments’ progress in achieving consistency across the WWCC schemes, with a view to assessing whether they have implemented the Royal Commission’s recommendations.

Noted

Nationally consistent standards will be put to relevant State and Territory Ministers in 2018. Implementation and review of these standards will be a matter for the states and territories.

84 Part Three: Criminal Justice Report No. RECOMMENDATION RESPONSE STATUS

1

In relation to child sexual abuse, including institutional child sexual abuse, the criminal justice system should be reformed to ensure that the following objectives are met: a.

the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused

b.

criminal justice responses are available for victims and survivors

c.

victims and survivors are supported in seeking criminal justice responses.

Accept

The Commonwealth criminal justice system is founded on principles of justice. Multiple safeguards and procedures are in place to ensure victims and

survivors

are able to effectively interact with the

criminal justice system.

2

Australian governments should refer to the Steering Committee for the Report on Government Services for review the issues of: a.

how the reporting framework for police services in the Report on Government Services could be extended to include reporting on child sexual abuse offences

b.

whether any outcome measures that would be appropriate for police investigations of child sexual abuse offences could be developed and reported on.

Accept in principle The Australian Federal Police (AFP) publicly reports data regarding child sexual abuse offences in its Annual

Report. The Australian Government will, together with the States and Territories, work with the Steering Committee for the Report on Government Services to ascertain whether any outcome measures that would be appropriate for police investigations of child sexual abuse offences could be developed and reported on.

85

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

3

Each Australian government should ensure that its policing agency: a.

recognises that a victim or survivor’s initial contact with police will be important in determining their satisfaction with the entire criminal justice response and in influencing their willingness to proceed with a report and to participate in a prosecution

b.

ensures that all police who may come into contact with victims or survivors of institutional child sexual abuse are trained to: i.

have a basic understanding of complex trauma and how it can affect people who report to police, including those who may have difficulties dealing with institutions or persons in positions of authority (such as the police)

ii.

treat anyone who approaches the police to report child sexual abuse with consideration and respect, taking account of any relevant cultural safety issues

c.

establishes arrangements to ensure that, on initial contact from a victim or survivor, police refer victims and survivors to appropriate support services.

Accept

The AFP plays a vital role in responding to, and providing support for, victims of crime. The AFP has established governance which provides strong guidance for Victim Based Crime investigators for the management and treatment of primary and related victims of crime in the Commonwealth jurisdiction. These governance policies and procedures outline the framework for the police response to victims of crime and provide a consistent standard of service from the time the referral is received, during the investigation, and throughout the court process. This governance, and AFP practice, is consistent with the recommendation.

4

To encourage reporting of allegations of child sexual abuse, including institutional child sexual abuse, each Australian government should ensure that its policing agency: a.

takes steps to communicate to victims (and their families or support people where victims are children or are particularly vulnerable) that their decision whether to participate in a police investigation will be respected - that is, victims retain the right to withdraw at any stage in the process and to decline to proceed further with police and/or any prosecution

b.

provides information on the different ways in which victims and survivors can report to police or seek advice from police on their options for reporting or not reporting abuse - this should be in a format that allows institutions and survivor advocacy and support groups and support services to provide it to victims and survivors

Accept in principle

The AFP maintains a number of procedures and policies which allow, and encourage, reporting of allegations of child sexual abuse both domestically and internationally. These procedures and policies are consistent with recommendations 4(b)-(f). Currently, the Commonwealth Director of Public Prosecutions (CDPP) may decide to proceed with a prosecution after a victim has withdrawn from the process where it is determined to be in the public interest. This only occurs in very limited circumstances, and the CDPP and AFP will work together to review this policy to ensure it is appropriate.

86

No.

RECOMMENDATION

RESPONSE

STATUS

4

c.

makes available a range of channels to encourage reporting, including specialist telephone numbers and online reporting forms, and provides information about what to expect from each channel of reporting

d.

works with survivor advocacy and support groups and support services, including those working with people from culturally and linguistically diverse backgrounds and people with disability, to facilitate reporting by victims and survivors

e.

allows victims and survivors to benefit from the presence of a support person of their choice if they so wish throughout their dealings with police, provided that this will not interfere with the police investigation or risk contaminating evidence

f.

is willing to take statements from victims and survivors in circumstances where the alleged perpetrator is dead or is otherwise unlikely to be able to be tried.

5

To encourage reporting of allegations of child sexual abuse, including institutional child sexual abuse, among Aboriginal and Torres Strait Islander victims and survivors, each Australian government should ensure that its

policing agency: a.

takes the lead in developing good relationships with Aboriginal and Torres Strait Islander communities

b.

provides channels for reporting outside of the community (such as telephone numbers and online reporting forms).

Accept

AFP policies and practices are consistent with this recommendation. The AFP has well established relationships and partnerships with various representatives, groups and committees of, and within, Aboriginal and Torres Strait Islander (ATSI) communities. The AFP has established community liaison teams which incorporate ATSI members. Additionally, the

Crimes Act 1914

(Cth) (sections 23H

and 23J) recognise that ATSI persons should have additional protections including interview friends and interpreters. Further, the AFP maintains a number of mechanisms that allow reporting of allegations of child sexual abuse outside of the community including both the AFP Hotline and an online form.

87

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

6

To encourage prisoners and former prisoners to report allegations of child sexual abuse, including institutional child sexual abuse, each Australian government should ensure that its policing agency: a.

provides channels for reporting that can be used from prison and that allow reports to be made confidentially

b.

does not require former prisoners to report at a police station.

Accept

The Commonwealth does not administer any prisons. The AFP maintains a number of mechanisms, which are available to prisoners in State or Territory prisons, for reporting of allegations of child sexual abuse including both the AFP Hotline and an online form.

7

Each Australian government should ensure that its policing agency conducts investigations of reports of child sexual abuse, including institutional child sexual abuse, in accordance with the following principles: a.

while recognising the complexity of police rosters, staffing and transfers, police should recognise the benefit to victims and their families and survivors of continuity in police staffing and should take steps to facilitate, to the extent possible, continuity in police staffing on an investigation

of a complaint

b.

police should recognise the importance to victims and their families and survivors of police maintaining regular communication with them to keep them informed of the status of their report and any investigation unless they have asked not to be kept informed

c.

particularly in relation to historical allegations of institutional child sexual abuse, police who assess or provide an investigative response to allegations should be trained to: i.

be non-judgmental and recognise that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record

ii.

focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant.

Accept

The AFP plays a vital role in responding to, and providing support for, victims of crime. The AFP has established governance which provides strong guidance for Victim Base Crime investigators for the management and treatment of primary and related victims of crime in the Commonwealth jurisdiction. These governance policies and procedures outline the framework for the police response to victims of crime and provide a consistent standard of service from the time the referral is received, during the investigation, and throughout the court process. This governance, and AFP practice, is consistent with the recommendation.

88

No.

RECOMMENDATION

RESPONSE

STATUS

8

State and territory governments should introduce legislation to implement Recommendation 20-1 of the report of the Australian Law Reform Commission and the New South Wales Law Reform Commission

Family violence: A national

legal response

in relation to disclosing or revealing the identity of a mandatory

reporter to a law enforcement agency.

Noted

The Australian Government will continue to work with state and territory governments to implement this recommendation through existing mechanisms.

9

Each Australian government should ensure that its policing agency conducts investigative interviewing in relation to reports of child sexual abuse, including institutional child sexual abuse, in accordance with the following principles: a.

all police who provide an investigative response (whether specialist or generalist) to child sexual abuse should receive at least basic training in understanding sexual offending, including the nature of child sexual abuse and institutional child sexual abuse offending

b.

all police who provide an investigative response (whether specialist or generalist) to child sexual abuse should be trained to interview the complainant in accordance with current research and learning about how memory works in order to obtain the complainant’s memory of the events

c.

the importance of video recorded interviews for children and other vulnerable witnesses should be recognised, as these interviews usually form all, or most, of the complainant’s and other relevant witnesses’ evidence in chief in any prosecution

d.

investigative interviewing of children and other vulnerable witnesses should be undertaken by police with specialist training. The specialist training should focus on: i.

a specialist understanding of child sexual abuse, including institutional child sexual abuse, and the developmental and communication needs of children and other vulnerable witnesses

ii.

skill development in planning and conducting interviews, including use of appropriate questioning techniques

Accept

AFP investigative interviewing in relation to victims of child sexual abuse is conducted in accordance with the principles listed in the recommendation. These principles are entrenched in training and governance procedures for AFP investigators. AFP Learning and Development and AFP Investigations Standards and Practices are responsible for training relevant officers, including a component on investigative interviewing in the Investigators Skills and Qualifications Framework. AFP officers involved in child protection operations receive technical training in caring for and interviewing victims, particularly children, and their families.

89

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No.

RECOMMENDATION

RESPONSE

STATUS

e.

specialist police should undergo refresher training on a periodical basis to ensure that their specialist understanding and skills remain up to date and accord with current research from time to time, experts should review a sample of video recorded interviews with children and other vulnerable witnesses conducted by specialist police for quality assurance and training purposes and to reinforce best-practice interviewing techniques

f.

state and territory governments should introduce legislation to remove any impediments, including in relation to privacy concerns, to the use of video recorded interviews so that the relevant police officer, his or her supervisor and any persons engaged by police in quality assurance and training can review video recorded interviews for quality assurance and training purposes. This should not authorise the use of video recorded interviews for general training in a manner that would raise privacy concerns

g.

police should continue to work towards improving the technical quality of video recorded interviews so that they are technically as effective as possible in presenting the complainant’s and other witnesses’ evidence in chief

h.

police should recognise the importance of interpreters, including for some Aboriginal and Torres Strait Islander victims, survivors and other witnesses

i.

intermediaries should be available to assist in police investigative interviews of children and other vulnerable witnesses

10

Each Australian government should ensure that its policing agency makes decisions in relation to whether to lay charges for child sexual abuse offences in accordance with the following principles: a.

recognising that it is important to complainants that the correct charges be laid as early as possible so that charges are not significantly downgraded at or close to trial, police should ensure that care is taken, and that early prosecution advice is sought, where appropriate, in laying charges

Accept

AFP procedures, and practice, provide that members are to seek early engagement with the CDPP to achieve appropriate outcomes for victims. AFP does not require corroborating evidence from a victim or survivor. These processes are consistent with this recommendation.

90

No.

RECOMMENDATION

RESPONSE

STATUS

10

b.

in making decisions about whether to charge, police should not: i.

expect or require corroboration where the victim or survivor’s account does not suggest that there should be any corroboration available

ii.

rely on the absence of corroboration as a determinative factor in deciding not to charge, where the victim or survivor’s account does not suggest that there should be any corroboration available, unless the prosecution service advises otherwise.

11

The Victorian Government should review the operation of section 401 of the Criminal Procedure Act 2009 (Vic) and consider amending the provision to restrict the awarding of costs against police if it appears that the risk of costs awards might be affecting police decisions to prosecute. The government of any other state or territory that has similar provisions should conduct a similar review and should consider similar amendments.

Accept

This recommendation is primarily a matter for the Victorian Government. It is possible for costs to be awarded against the police in States or Territories where this power is available to courts by the application of State or Territory laws pursuant to s.68 of the

Judiciary Act 1903

(Cth). However, we have

seen no instances of the AFP declining to investigate because of the risk of costs being awarded. To overcome this problem the Australian Government would either need to amend the scope of s.68 of the Judiciary Act 1903

(Cth) or otherwise legislate to override

the operation of State and Territory law.

12

Each Australian government should ensure that, if its policing agency does not provide a specialist response to victims and survivors reporting historical child sexual abuse, its policing agency develops and implements a document in the nature of a ‘guarantee of service’ which sets out for the benefit of victims and survivors - and as a reminder to the police involved - what victims and survivors are entitled to expect in the police response to their report of child sexual abuse. The document should include information to the effect that victims and survivors are entitled to: a.

be treated by police with consideration and respect, taking account of any relevant cultural safety issues

b.

have their views about whether they wish to participate in the police investigation respected

Accept in principle

The AFP plays a vital role in responding to, and providing support for, victims of crime. AFP procedures and practice are consistent with the expectations listed in the recommendation. AFP will review current practices to ensure that this information is being appropriately communicated to the public.

91

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RECOMMENDATION

RESPONSE

STATUS

c.

be referred to appropriate support services

d.

contact police through a support person or organisation rather than contacting police directly if they prefer

e.

have the assistance of a support person of their choice throughout their dealings with police unless this will interfere with the police investigation or risk contaminating evidence

f.

have their statement taken by police even if the alleged perpetrator

is dead

g.

be provided with the details of a nominated person within the police service for them to contact

h.

be kept informed of the status of their report and any investigation unless they do not wish to be kept informed

i.

have the police focus on the credibility of the complaint or allegations rather than focusing only on the credibility of the complainant, recognising that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record.

13

Each Australian government should ensure that its policing agency responds to victims and survivors with disability, or their representatives, who report or seek to report child sexual abuse, including institutional child sexual abuse, to police in accordance with the following principles: a.

police who have initial contact with the victim or survivor should be non- judgmental and should not make any adverse assessment of the victim or survivor’s credibility, reliability or ability to make a report or participate in a police investigation or prosecution because of their disability

b.

police who assess or provide an investigative response to allegations made by victims and survivors with disability should focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant, and they should not make any adverse assessment of the victim or survivor’s credibility or reliability because of their disability

Accept

The AFP plays a vital role in responding to, and providing support for, victims of crime. The AFP has established governance which provides strong guidance for Victim Based Crime investigators for the management and treatment of primary and related victims of crime in the Commonwealth jurisdiction. These governance policies and procedures outline the framework for the police response to victims of crime and provide a consistent standard of service from the time the referral is received, during the investigation, and throughout the court process. In particular, procedures are in place for dealing with vulnerable witnesses, including victims and survivors with disability. This governance, and AFP practice, is consistent with the recommendation.

92

No.

RECOMMENDATION

RESPONSE

STATUS

13

c.

police who conduct investigative interviewing should make all appropriate use of any available intermediary scheme, and communication supports, to ensure that the victim or survivor is able to give their best evidence in the investigative interview

d.

decisions in relation to whether to lay charges for child sexual abuse offences should take full account of the ability of any available intermediary scheme, and communication supports, to assist the victim or survivor to give their best evidence when required in the prosecution process.

14

In order to assist in the investigation of current allegations of institutional

child sexual abuse, each Australian government should ensure that its

policing agency: a.

develops and keeps under review procedures and protocols to guide police and institutions about the information and assistance police can provide to institutions where a current allegation of institutional child sexual abuse

is made

b.

develops and keeps under review procedures and protocols to guide the police, other agencies, institutions and the broader community on the information and assistance police can provide to children and parents and the broader community where a current allegation of institutional child sexual abuse is made.

Accept

AFP procedures and practices are consistent with this recommendation. The AFP provides detailed information on its website in relation to the child sexual offences for which it has responsibility (i.e. online child sexual exploitation and overseas sex offences). This includes how to report offences and suspicious behaviour. The AFP also delivers this information through a number of different programs and initiatives including the ThinkUKnow program and National Child Protection Week. The AFP also conducts education programs for other government agencies, law enforcement and non-governmental organisations on the application of Commonwealth child sexual offences. These procedures and programs are under constant review to ensure they are up-to-date and effective.

15

The New South Wales Standard Operating Procedures for Employment Related Child Abuse Allegations and the Joint Investigation Response Team Local Contact Point Protocol should serve as useful precedents for other Australian governments to consider.

Accept in principle

AFP already has procedures and practices in place which are consistent with recommendation 14.

93

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No.

RECOMMENDATION

RESPONSE

STATUS

16

In relation to blind reporting, institutions and survivor advocacy and support groups should: a.

be clear that, where the law requires reporting to police, child protection or another agency, the institution or group or its relevant staff member or official will report as required

b.

develop and adopt clear guidelines to inform staff and volunteers, victims and their families and survivors, and police, child protection and other agencies as to the approach the institution or group will take in relation to allegations, reports or disclosures it receives that it is not required by law to report to police, child protection or another agency.

Accept

This is reflected broadly in the National Principles. In August 2017, the Australian Government agreed to the development of a Commonwealth Child Safe Framework to protect children and young people in Commonwealth care (Commonwealth Framework). The Commonwealth Framework requires all agencies to adopt the National Principles within 12 months of COAG endorsement. Consideration is being given to extend the Commonwealth Framework to Commonwealth funded third parties. The National Office for Child Safety, once established within DSS on 1 July 2018, will develop guidance material for organisations working with children to support best practice in reporting abuse, in consultation with sectors working with children and complaint handling organisations.

17

If a relevant institution or survivor advocacy and support group adopts a policy of reporting survivors’ details to police without survivors’ consent - that is, if it will not make blind reports - it should seek to provide information about alternative avenues for a survivor to seek support if this aspect of the institution or group’s guidelines is not acceptable to the survivor.

Accept

See recommendation 16.

18

Institutions and survivor advocacy and support groups that adopt a policy that they will not report the survivor’s details without the survivor’s consent should make a blind report to police in preference to making no report at all.

Accept

See recommendation 16.

19

Regardless of an institution or survivor advocacy and support group’s policy in relation to blind reporting, the institution or group should provide survivors with: a.

information to inform them about options for reporting to police

b.

support to report to police if the survivor is willing to do so.

Accept

See recommendation 16.

94

No.

RECOMMENDATION

RESPONSE

STATUS

20

Police should ensure that they review any blind reports they receive and that they are available as intelligence in relation to any current or subsequent police investigations. If it appears that talking to the survivor might assist with a police investigation, police should contact the relevant institution or survivor advocacy and support group, and police and the institution or group should cooperate to try to find a way in which the survivor will be sufficiently supported so that they are willing to speak to police.

Accept

AFP maintains a number of mechanisms that allows, and encourages, reporting of allegations of child sexual abuse both domestically and internationally. These procedures permit blind reporting. All reports received are evaluated, in order to determine what actions need to be taken with each report. For those reports that do not progress to further investigation, all information is recorded on police indices and is available for future reference or intelligence purposes. If it is determined that contact with the victim or survivor is necessary, existing governance policies and procedures will govern the manner in which AFP engages with the victim or survivor. This governance, and AFP practice, is consistent with the recommendation.

21

Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that: a.

the actus reus is the maintaining of an unlawful sexual relationship

b.

an unlawful sexual relationship is established by more than one unlawful sexual act

c.

the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury, jurors need not be satisfied of the same unlawful sexual acts

d.

the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed

e.

on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.

Accept in principle

Constitutional limitations mean that Commonwealth child sexual abuse legislation is limited to offences that occur overseas, via a postal service, and via a carriage service. The Australian Government has strong criminal offences to combat persistent child sexual abuse overseas. Persistent child sexual abuse outside Australia is criminalised under subdivision 272.11 of the Criminal Code

(Cth). This offence is established by a

person committing an unlawful sexual act on three or more occasions during any period. The Australian Government will further consider amendments to this offence.

95

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

Carriage service and postal child sexual abuse offences are, by definition, non-contact offences. These offences target communications with children of a sexual nature, focusing on preparatory activity, such as grooming or procuring a child for sexual activity, noting that grooming can apply to a course of conduct. Due to the inherently non-physical nature of postal and virtual communications, these offences cannot capture sexual intercourse or physical contact with a child. As such, recommendations for persistent child abuse offences are not applicable to the Commonwealth’s carriage service and postal child

sex offences. On 13 September 2017, the Australian Government introduced the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 to the Australian Parliament. The Bill introduces mandatory minimum sentences for repeat offenders found guilty of Commonwealth child sex offences, including offenders whose first offence was a state or territory child sex offence. These measures appropriately address repeat and persistence child sexual abuse applicable to the offences allowable under Commonwealth legislative powers.

96

No.

RECOMMENDATION

RESPONSE

STATUS

22

The draft provision in Appendix H provides for the recommended reform. Legislation to the effect of the draft provision should be introduced.

Accept in principle

Constitutional limitations mean that Commonwealth child sexual abuse legislation is limited to offences that occur overseas, via a postal service, and via a carriage service. The Australian Government has strong criminal

offence to combat persistent child sexual abuse overseas. Persistent child sexual abuse outside Australia is criminalised under subdivision 272.11 of the

Criminal

Code

(Cth). This offence is established by a person

committing an unlawful sexual act on three or more occasions during any period. The Australian Government will further consider amendments to this offence. Carriage service and postal child sexual abuse offences are, by definition, non-contact offences. These offences target communications with children of a sexual nature, focusing on preparatory activity, such as grooming or procuring a child for sexual activity. Due to the inherently non-physical nature of postal and virtual communications, these offences cannot capture sexual intercourse or physical contact with a child. As such, recommendations for persistent child abuse offences are not applicable to the Commonwealth’s carriage service and postal child sex offences. On 13 September 2017, the Australian Government introduced the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 to the Australian Parliament. The Bill introduces mandatory minimum sentences for repeat offenders found guilty of Commonwealth child sex offences, including offenders whose first offence was a state or territory child sex offence. These measures appropriately address repeat and persistence child sexual abuse applicable to the offences allowable under Commonwealth legislative powers.

97

PART THREE:

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No.

RECOMMENDATION

RESPONSE

STATUS

23

State and territory governments (other than Victoria) should consider introducing legislation to establish legislative authority for course of conduct charges in relation to child sexual abuse offences if legislative authority may assist in using course of conduct charges.

Accept in principle

Constitutional limitations mean that Commonwealth child sexual abuse legislation is limited to offences that occur overseas, via a postal service, and via a carriage service. The Australian Government has strong criminal offences to combat persistent child sexual abuse overseas. Persistent child sexual abuse outside Australia is criminalised under subdivision 272.11 of the

Criminal

Code

(Cth). This offence is established by a person

committing an unlawful sexual act on three or more occasions during any period. This offence does not require proof of the dates or exact circumstances of each occasion. Carriage service and postal child sexual abuse offences are, by definition, non-contact offences. Due to the inherently non-physical nature of postal and virtual communications, these offences do not relate to sexual intercourse or physical contact with a child. The exception is the offence for using a carriage service to engage in sexual activity with a child, which captures live-streamed child abuse. Live-streamed child abuse includes, but is not limited to, a person using a carriage service to view another person engaging in contact offending with a child. Where the contact offending occurs in Australia, state and territory offences for contact abuse will apply. Where the contact offending occurs outside Australia, section 272.11 of the

Criminal Code

(Cth) will apply to

persistent child abuse perpetrated by an Australian citizen. The exception is the offence for using a carriage service to engage in sexual activity with a child, which captures live-streamed child abuse.

98

No.

RECOMMENDATION

RESPONSE

STATUS

23

Live-streamed child abuse includes, but is not limited to, a person using a carriage service to view another person engaging in contact offending with a child. Where the contact offending occurs outside Australia, section 272.11 of the

Criminal Code

(Cth)

will apply to persistent child abuse perpetrated by an Australian citizen. The Australian Government will continue to consider the appropriateness of new course of conduct offences for offences that occur overseas and via a carriage service. On 13 September 2017, the Australian Government introduced the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 to the Australian Parliament. The Bill introduces mandatory minimum sentences for repeat offenders found guilty of Commonwealth child sex offences, including offenders whose first offence was a state or territory child sex offence. These measures appropriately address repeat and persistence child sexual abuse applicable to the offences allowable under Commonwealth legislative powers.

24

State and territory governments should consider providing for any of the two or more unlawful sexual acts that are particularised for the maintaining an unlawful sexual relationship offence to be particularised as courses of conduct.

Accept in principle

Constitutional limitations mean that Commonwealth child sexual abuse legislation is limited to offences that occur overseas, via a postal service, and via a carriage service. The Australian Government has strong criminal offences to combat persistent child sexual abuse overseas.

99

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

Persistent child sexual abuse outside Australia is criminalised under subdivision 272.11 of the

Criminal

Code

(Cth). This offence is established by a person

committing an unlawful sexual act on three or more occasions during any period. This offence does not require proof of the dates or exact circumstances of each occasion. The Australian Government will continue to consider the appropriateness of new course of conduct offences. On 13 September 2017, the Australian Government introduced the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 to the Australian Parliament. The Bill introduces mandatory minimum sentences for repeat offenders found guilty of Commonwealth child sex offences, including offenders whose first offence was a state or territory child sex offence. These measures appropriately address repeat and persistence child sexual abuse applicable to the offences allowable under Commonwealth legislative powers.

25

To the extent they do not already have a broad grooming offence, each state and territory government should introduce legislation to amend its criminal legislation to adopt a broad grooming offence that captures any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence.

Accept

The Commonwealth has existing broad grooming offences which are consistent with this recommendation. These offences capture communication or conduct with a child with the intention of grooming the child for sexual intercourse or sexual activity. These offences apply where the communication or conduct occurs overseas, using a carriage service, or using a postal or similar service. These offences are criminalised under sections 272.15, 471.25 and 474.27 of the

Criminal Code

(Cth).

100

No.

RECOMMENDATION

RESPONSE

STATUS

26

Each state and territory government (other than Victoria) should introduce legislation to extend its broad grooming offence to the grooming of persons other than the child.

Accept

The Commonwealth has existing broad grooming offences which apply overseas, via a carriage service, and via a postal or similar service. These offences are criminalised under subdivisions 272.15, 471.25 and 474.27 of the

Criminal Code

(Cth).

On 13 September 2017, the Australian Government introduced the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017 to the Australian Parliament. The Bill introduces a new Commonwealth offence to criminalise using a carriage service to groom another person to make it easier to procure a child for sexual activity, and using a postal or similar service to groom another person to make it easier to procure a child for sexual activity. The Commonwealth will also amend the existing offence of grooming a child overseas to extend it to the grooming of persons other than the child.

27

State and territory governments should review any position of authority offences applying in circumstances where the victim is 16 or 17 years of age and the offender is in a position of authority (however described) in relation to the victim. If the offences require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), states and territories should introduce legislation to amend the offences so that the existence of the relationship is sufficient.

Accept

The Commonwealth has existing position of authority offences which are consistent with this recommendation. Sexual intercourse and sexual activity with a young person (16 or 17 years of age) outside Australia by a person who is in a position of trust or authority is criminalised under subdivisions 272.12 and 272.13 of the

Criminal Code

(Cth). These offences do

not require more than the existence of a relationship of trust or authority between the offender and the victim.

101

PART THREE:

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No.

RECOMMENDATION

RESPONSE

STATUS

28

State and territory governments should review any provisions allowing consent to be negatived in the event of sexual contact between a victim of 16 or 17 years of age and an offender who is in a position of authority (however described) in relation to the victim. If the provisions require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), state and territory governments should introduce legislation to amend the provisions so that the existence of the relationship is sufficient.

Accept

The Commonwealth has existing position of authority offences which are consistent with this recommendation. Sexual intercourse and sexual activity with a young person (16 or 17 years of age) outside Australia by a person who is in a position of trust or authority is criminalised under subdivisions 272.12 and 272.13 of the

Criminal Code

(Cth). These offences do

not require more than the existence of a relationship of trust or authority between the offender and the victim.

29

If there is a concern that one or more categories of persons in a position of authority (however described) may be too broad and may catch sexual contact which should not be criminalised when it is engaged in by such persons with children above the age of consent, state and territory governments could consider introducing legislation to establish defences such as a similar-age consent defence.

Accept

Sections 272.3 and 474.25B of the

Criminal Code

(Cth)

sets out clear categories of persons in a position of trust or authority. The Australian Government considers these categories are not too broad and are appropriate.

30

State and territory governments should introduce legislation to remove any remaining limitation periods, or any remaining immunities, that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards.

Noted

Implemented. There are no limitation periods or immunities that attach to specific Commonwealth

child sex offences.

31

Without limiting recommendation 30, the New South Wales Government should introduce legislation to give the repeal of the limitation period in section 78 of the Crimes Act 1900 (NSW) retrospective effect.

Noted

This recommendation is a matter for the New South Wales Government.

32

Any person associated with an institution who knows or suspects that a child is being or has been sexually abused in an institutional context should report the abuse to police (and, if relevant, in accordance with any guidelines the institution adopts in relation to blind reporting under recommendation 16).

Accept

See recommendation 16.

102

No.

RECOMMENDATION

RESPONSE

STATUS

33

Each state and territory government should introduce legislation to create a criminal offence of failure to report targeted at child sexual abuse in an institutional context as follows: a.

the failure to report offence should apply to any adult person who: i.

is an owner, manager, staff member or volunteer of a relevant institution - this includes persons in religious ministry and other officers or personnel of religious institutions

ii.

otherwise requires a Working with Children Check clearance for the purposes of their role in the institution

but it should not apply to individual foster carers or kinship carers

b.

the failure to report offence should apply if the person fails to report to police in circumstances where they know, suspect, or should have suspected (on the basis that a reasonable person in their circumstances would have suspected and it was criminally negligent for the person not to suspect), that an adult associated with the institution was sexually abusing or had sexually abused a child

c.

relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster and kinship care services should be included (but not individual foster carers or kinship carers). Facilities and services provided by religious institutions, and any services or functions performed by persons in religious ministry, should be included

d.

if the knowledge is gained or the suspicion is or should have been formed after the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply: i.

a child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years)

Accept in principle

The Australian Government is assessing whether relevant State and Territory legislation applies effectively to the Commonwealth.

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STATUS

ii.

the person who is known to have abused a child or is or should have been suspected of abusing a child is either: - still associated with the institution - known or believed to be associated with another relevant institution

iii.

the knowledge gained or the suspicion that is or should have been formed relates to abuse that may have occurred within the previous

10 years

e.

if the knowledge is gained or the suspicion is or should have been formed before the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply: i.

a child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years) and is still associated with the institution (that is, they are still in the care, supervision or control of the institution)

ii.

the person who is known to have abused a child or is or should have been suspected of abusing a child is either: - still associated with the institution - known or believed to be associated with another relevant institution.

34

State and territory governments should: a.

ensure that they have systems in place in relation to their mandatory reporting scheme and any reportable conduct scheme to ensure that any reports made under those schemes that may involve child sexual abuse offences are brought to the attention of police

Accept in principle

This recommendation is primarily for state and territory governments. There is, however, a mandatory reporting framework in the

Family Law Act 1975

(Cth) in relation

to family law proceedings. This scheme requires allegations of child abuse to be reported to appropriate prescribed child welfare agencies. These agencies are most appropriately placed to assess and consider whether these allegations should be referred to police.

104

No.

RECOMMENDATION

RESPONSE

STATUS

34

b.

include appropriate defences in the failure to report offence to avoid duplication of reporting under mandatory reporting and any reportable conduct schemes.

Accept in principle

The Australian Government is assessing whether relevant State and Territory legislation applies effectively to the Commonwealth.

35

Each state and territory government should ensure that the legislation it introduces to create the criminal offence of failure to report recommended in recommendation 33 addresses religious confessions as follows: a.

the criminal offence of failure to report should apply in relation to knowledge gained or suspicions that are or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession

b.

the legislation should exclude any existing excuse, protection or privilege in relation to religious confessions to the extent necessary to achieve this objective

c.

religious confession should be defined to include a confession about the conduct of a person associated with the institution made by a person to a second person who is in religious ministry in that second person’s professional capacity according to the ritual of the church or religious denomination concerned.

For further consideration

The Australian Government is assessing whether relevant State and Territory legislation applies effectively to the Commonwealth.

36

State and territory governments should introduce legislation to create a criminal offence of failure to protect a child within a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution as follows: a.

the offence should apply where: i.

an adult person knows that there is a substantial risk that another adult person associated with the institution will commit a sexual offence against: - a child under 16 - a child of 16 or 17 years of age if the person associated with the

institution is in a position of authority in relation to the child

Accept in principle

The Australian Government is assessing whether relevant State and Territory legislation applies effectively to the Commonwealth.

105

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RECOMMENDATION

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STATUS

ii.

the person has the power or responsibility to reduce or remove the risk

iii.

the person negligently fails to reduce or remove the risk

b.

the offence should not be able to be committed by individual foster carers or kinship carers

c.

relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster care and kinship care services should be included, but individual foster carers and kinship carers should not be included

d.

facilities and services provided by religious institutions, and any service or functions performed by persons in religious ministry, should be included

e.

state and territory governments should consider the Victorian offence in section 49C of the

Crimes Act 1958

(Vic) as a useful precedent, with an

extension to include children of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child.

37

All Australian Directors of Public Prosecutions, with assistance from the relevant government in relation to funding, should ensure that prosecution responses to child sexual abuse are guided by the following principles: a.

all prosecution staff who may have professional contact with victims of institutional child sexual abuse should be trained to have a basic understanding of the nature and impact of child sexual abuse - and institutional child sexual abuse in particular - and how it can affect people who are involved in a prosecution process, including those who may have difficulties dealing with institutions or person in positions of authority

Accept

CDPP Practice Group Action Plan commits to victims of crime training for lawyers. A national training package in relation to victims of crime was delivered for CDPP staff in 2017. A national plan for ongoing training is in development. Higher level training is appropriate and will require the engagement of external specialists.

b.

while recognising the complexity of prosecution staffing and court timetables, prosecution agencies should recognise the benefit to victims and their families and survivors of continuity in prosecution team staffing and should take steps to facilitate, to the extent possible, continuity in staffing of the prosecution team involved in a prosecution

Accept

The CDPP’s Victims of Crime Policy recognises that all reasonable steps should be taken to endeavour to have continuity of CDPP staff (both legal and from the CDPP Witness Assistance Service), particularly in cases involving vulnerable victims such as children. The CDPP is compliant with this recommendation.

106

No.

RECOMMENDATION

RESPONSE

STATUS

37

c.

prosecution agencies should continue to recognise the importance to victims and their families and survivors of the prosecution agency maintaining regular communication with them to keep them informed of the status of the prosecution unless they have asked not to be kept informed

Accept

The CDPP’s Victims of Crime Policy recognises that victims should, on request, be kept informed of the progress of the prosecution in a timely manner, including: a. a decision to commence a prosecution (and the

charges laid);

b. a decision not to commence a prosecution; c. the date and place of hearing of any charges laid; d. the outcome of any bail proceedings; e. plea negotiations; and f. the outcome of proceedings, including appeal

proceedings.

The CDPP is compliant with this recommendation.

d.

Witness Assistance Services should be funded and staffed to ensure that they can perform their task of keeping victims and their families and survivors informed and ensuring that they are put in contact with relevant support services, including staff trained to provide a culturally appropriate service for Aboriginal and Torres Strait Islander victims and survivors. Specialist services for children should also be considered

Accept

In 2008, the CDPP implemented a small Witness Assistance Service (WAS) to provide limited assistance to victims of crime, particularly the most vulnerable victims of crime, children and their families. WAS staff are qualified social workers providing a range of information and support services to child victims and their families, including information and updates about the prosecution process, court familiarisation, referrals to relevant support services and support at court and during conferences.

107

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No.

RECOMMENDATION

RESPONSE

STATUS

e.

particularly in relation to historical allegations of institutional child sexual abuse, prosecution staff who are involved in giving early charge advice or in prosecuting child sexual abuse matters should be trained to: i.

be non-judgmental and recognise that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record

ii.

ii. focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant

Accept

This will need to be incorporated into CDPP training.

f.

prosecution agencies should recognise that children with disability are at a significantly increased risk of abuse, including child sexual abuse. Prosecutors should take this increased risk into account in any decisions they make in relation to prosecuting child sexual abuse offences.

Accept in principle

All decisions regarding instituting or continuing a prosecution are made in accordance with the Prosecution Policy of the Commonwealth.

38

Each state and territory government should facilitate the development of standard material to provide to complainants or other witnesses in child sexual abuse trials to better inform them about giving evidence. The development of the standard material should be led by Directors of Public Prosecutions in consultation with Witness Assistance Services, public defenders (where available), legal aid services and representatives of the courts to ensure that it: a.

is likely to be of adequate assistance for complainants who are not familiar with criminal trials and giving evidence

b.

is fair to the accused as well as to the prosecution

c.

does not risk rehearsing or coaching the witness.

Accept

The CDPP is in the process of reviewing and enhancing all material that relates to advice to witnesses/victims on all stages of the criminal process.

108

No.

RECOMMENDATION

RESPONSE

STATUS

39

All Australian Directors of Public Prosecutions should ensure that prosecution charging and plea decisions in prosecutions for child sexual abuse offences are guided by the following principles: a.

prosecutors should recognise the importance to complainants of the

correct charges being laid as early as possible so that charges are not significantly downgraded or withdrawn at or close to trial. Prosecutors should provide early advice to police on appropriate charges to lay when such advice is sought

Accept

The CDPP’s Victims of Crime Policy recognises that the CDPP should endeavour to ensure the most appropriate charges are identified and laid as early as possible, including via early engagement with investigators, in order to minimise distress to victims by the downgrading or withdrawal of charges. The CDPP provides pre-brief advice to investigators to assist in determining appropriate charges. The decision whether or not to prosecute is recognised in the Prosecution Policy of the Commonwealth as the most important step in the prosecution process. The CDPP is compliant with this recommendation.

b.

regardless of whether such advice has been sought, prosecutors should confirm the appropriateness of the charges as early as possible once they are allocated to the prosecution to ensure that the correct charges have been laid and to minimise the risk that charges will have to be downgraded or withdrawn closer to the trial date

Accept

The CDPP’s Victims of Crime Policy recognises that the CDPP should endeavour to ensure the most appropriate charges are identified and laid as early as possible, including via early engagement with investigators, in order to minimise distress to victims by the downgrading or withdrawal of charges. The CDPP reviews all charges in accordance with the Prosecution Policy of the Commonwealth. The CDPP has implemented a requirement for lawyers to complete a declaration that a matter has been assessed in accordance with the Prosecution Policy of the Commonwealth. The CDPP is compliant with this recommendation.

109

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

c.

while recognising the benefit of securing guilty pleas, prosecution agencies should also recognise that it is important to complainants - and to the criminal justice system - that the charges for which a guilty plea is accepted reasonably reflect the true criminality of the abuse they suffered

Accept

This is addressed by the Prosecution Policy of the Commonwealth that requires that on any plea negotiation “the charges to be proceeded with should bear a reasonable relationship to the nature of the criminal conduct of the defendant”. The CDPP has issued a National Legal Direction for the early resolution of matters, which recognises the above policy. The Legal Direction also recognises that the views of any victim must be taken into account. The CDPP is compliant with this recommendation.

d.

prosecutors must endeavour to ensure that they allow adequate time to consult the complainant and the police in relation to any proposal to downgrade or withdraw charges or to accept a negotiated plea and that the complainant is given the opportunity to obtain assistance from relevant witness assistance officers or other advocacy and support services before they give their opinion on the proposal. If the complainant is a child, prosecutors must endeavour to ensure that they give the child the opportunity to consult their carer or parents unless the child does not

wish to do so.

Accept

CDPP policy is for consultation to occur in all matters involving the downgrading or withdrawal of charges. The CDPP is compliant with this recommendation.

40

Each Australian Director of Public Prosecutions should: a.

have comprehensive written policies for decision-making and consultation with victims and police

Accept

The CDPP has a Victims of Crime Policy and

Decision-making Matrix, which ensures that decisions are made with the appropriate authority and consultation takes place. The CDPP is compliant with this recommendation.

b.

publish all policies online and ensure that they are publicly available

Accept

The CDPP has all policies publically available online. The CDPP is compliant with this recommendation.

110

No.

RECOMMENDATION

RESPONSE

STATUS

40

c.

provide a right for complainants to seek written reasons for key decisions, without detracting from an opportunity to discuss reasons in person before written reasons are provided.

Accept

The CDPP has a Practice Group Instruction which provides that where a decision has been made to not commence a prosecution or to wholly discontinue a prosecution involving child complainants in child sex matters against a defendant, the victim will be notified in writing of the decision, and also notified of the their right to seek review of the decision by the Director. The CDPP’s Victims of Crime Policy and Prosecution Policy of the Commonwealth recognise that the views of any victims, where those views are available, and where it is appropriate, to be considered and taken into account when deciding whether it is in the public interest to: a. commence a prosecution; b. discontinue a prosecution; c. agree to a plea negotiation; or d. decline to proceed with a prosecution after a

committal.

The CDPP is compliant with this recommendation.

41

Each Australian Director of Public Prosecutions should establish a robust and effective formalised complaints mechanism to allow victims to seek internal merits review of key decisions.

Accept

The CDPP has a National Legal Direction in relation to Feedback and Complaints. The CDPP is compliant with this recommendation.

42

Each Australian Director of Public Prosecutions should establish robust and effective internal audit processes to audit their compliance with policies for decision-making and consultation with victims and police.

Accept

The CDPP regularly audits compliance with policies

and procedures. The CDPP also has an independent audit committee. The CDPP is compliant with this recommendation.

111

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

43

Each Australian Director of Public Prosecutions should publish the existence of their complaints mechanism and internal audit processes and data on their use and outcomes online and in their annual reports.

Accept

The CDPP has a National Legal Direction in relation to Feedback and Complaints, which is available online. The Legal Direction provides for the publishing of anonymised data regarding complaints. The CDPP is compliant with this recommendation.

44

In order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials.

Accept in principle

On 1 December 2017 the Council of Attorneys-General agreed to the establishment of an Evidence Working Group, including representatives from all uniform evidence law and other interested jurisdictions, which would consider reform to the current test for the admissibility of tendency and coincidence evidence. The Working Group will report back to the Council of Attorneys-General with a reform proposal by the end of 2018. The Working Group has agreed to Terms of Reference and is considering and consulting on a number of Reform Directions contained within a Scoping Paper prepared by New South Wales. Jurisdictions are encouraged to provide feedback on the Scoping Paper which will guide the direction of an Options Paper. The Options Paper will be taken to the next meeting of the Council of Attorneys-General for discussion. Jurisdictions will have the opportunity to undertake further consultation on the Options Paper before providing further feedback. This feedback will guide the preparation of the Proposal Paper which will go before the Council of Attorneys-General at the end of the year. The Australian Government is of the view that any reform should operate consistently across all jurisdictions, especially those that apply the uniform evidence law.

112

No.

RECOMMENDATION

RESPONSE

STATUS

45

Tendency or coincidence evidence about the defendant in a child sexual offence prosecution should be admissible: a.

if the court thinks that the evidence will, either by itself or having regard to the other evidence, be ‘relevant to an important evidentiary issue’ in the proceeding, with each of the following kinds of evidence defined to be ‘relevant to an important evidentiary issue’ in a child sexual offence proceeding: i.

evidence that shows a propensity of the defendant to commit particular kinds of offences if the commission of an offence of the same or a similar kind is in issue in the proceeding

ii.

evidence that is relevant to any matter in issue in the proceeding if the matter concerns an act or state of mind of the defendant and is important in the context of the proceeding as a whole

b.

unless, on the application of the defendant, the court thinks, having regard to the particular circumstances of the proceeding, that both: i.

admission of the evidence is more likely than not to result in the proceeding being unfair to the defendant

ii.

if there is a jury, the giving of appropriate directions to the jury about the relevance and use of the evidence will not remove the risk.

Accept in principle

See recommendation 44.

46

Common law principles or rules that restrict the admission of propensity or similar fact evidence should be explicitly abolished or excluded in relation to the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution.

Accept in principle

See recommendation 44.

47

Issues of concoction, collusion or contamination should not affect the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. The court should determine admissibility on the assumption that the evidence will be accepted as credible and reliable, and the impact of any evidence of concoction, collusion or contamination should be left to the jury or other fact-finder.

Accept in principle

See recommendation 44.

113

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

48

Tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt.

Accept in principle

See recommendation 44.

49

Evidence of: a.

the defendant’s prior convictions

b.

acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted)

should be admissible as tendency or coincidence evidence if it otherwise satisfies the test for admissibility of tendency or coincidence evidence about a defendant in a child sexual offence prosecution.

Accept in principle

See recommendation 44.

50

Australian governments should introduce legislation to make the reforms we recommend to the rules governing the admissibility of tendency and coincidence evidence.

Accept in principle

See recommendation 44.

51

The draft provisions in Appendix N provide for the recommended reforms for Uniform Evidence Act jurisdictions. Legislation to the effect of the draft provisions should be introduced for Uniform Evidence Act jurisdictions and non-Uniform Evidence Act jurisdictions.

Accept in principle

See recommendation 44.

52

State and territory governments should ensure that the necessary legislative provisions and physical resources are in place to allow for the prerecording of the entirety of a witness’s evidence in child sexual abuse prosecutions. This should include both: a.

in summary and indictable matters, the use of a pre-recorded investigative interview as some or all of the witness’s evidence in chief

b.

in matters tried on indictment, the availability of pre-trial hearings to record all of a witness’s evidence, including cross-examination and re-examination, so that the evidence is taken in the absence of the jury and the witness need not participate in the trial itself.

Accept

All child sexual offences in the Criminal Code (Cth) are indictable offences as they carry penalties greater than 12 months. Under Part IA, s4H of the

Crimes Act

1914

(Cth), an indictable offence is an offence which

is punishable by imprisonment for a period exceeding 12 months. Part IAD, Division 5 of the

Crimes Act 1914

(Cth) provides

for the use of video recordings for vulnerable witnesses. s15YM provides for a video recording of an interview of a vulnerable person to be admitted as evidence in chief (subject to the interview being conducted by a specified person and the court gives leave).

114

No.

RECOMMENDATION

RESPONSE

STATUS

52

The Commonwealth is compliant with recommendation 52(a) as provided for in s15YM of the

Crimes Act 1914

(Cth). The Commonwealth is not compliant with recommendation 52(b). Compliance would require legislative change.

53

Full prerecording should be made available for: a.

all complainants in child sexual abuse prosecutions

b.

any other witnesses who are children or vulnerable adults

c.

any other prosecution witness that the prosecution considers necessary.

Accept in principle

As above. Full compliance with recommendations 53(a), (b) and (c) will require amendment to the

Crimes Act 1914

(Cth).

54

Where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure.

Accept

While Division 3 of the

Crimes Act 1914

(Cth) sets out

a range of restrictions relating to cross-examination of vulnerable persons, given that prerecording of evidence or cross-examination is not prescribed in the Act, the Commonwealth is not consistent. Full consistency with recommendation 54 will require amendment to the

Crimes Act 1914

(Cth).

55

State and territory governments should work with courts to improve the technical quality of closed circuit television and audio-visual links and the equipment used and staff training in taking and replaying pre-recorded and remote evidence.

Accept

This recommendation relates to the effective implementation of recommendations 52-54. Accordingly, it is a question of how courts prioritise resources.

56

State and territory governments should introduce legislation to require the audio- visual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual abuse prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness’s evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a pre-recorded hearing.

Accept

The Commonwealth is not consistent with recommendation 56. Compliance would require legislative change.

115

PART THREE:

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No.

RECOMMENDATION

RESPONSE

STATUS

57

State and territory governments should ensure that the courts are adequately resourced to provide this facility, in terms of both the initial recording and its use in any subsequent trial or retrial.

Noted

This is a question of how courts prioritise resources.

58

If it is not practical to record evidence given live in court in a way that is suitable for use in any subsequent trial or retrial, prosecution guidelines should require that the fact that a witness may be required to give evidence again in the event of a retrial be discussed with witnesses when they make any choice as to whether to give evidence via prerecording, closed circuit television or in person.

Accept

The CDPP regularly uses the provisions contained in Division 5A of the

Crimes Act 1914

(Cth) in relation to

vulnerable witnesses. The CDPP is compliant with this recommendation. The Attorney-General’s Department (AGD) will work with the CDPP to consider appropriate legislative reform designed to strengthen protection for

vulnerable witnesses.

59

State and territory governments should establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales which are available to any prosecution witness with a communication difficulty in a child sexual abuse prosecution. Governments should ensure that the scheme: a.

requires intermediaries to have relevant professional qualifications to assist in communicating with vulnerable witnesses

b.

provides intermediaries with training on their role and in understanding that their duty is to assist the court to communicate with the witness and to be impartial

c.

makes intermediaries available at both the police interview stage and

trial stage

d.

enables intermediaries to provide recommendations to police and the court on how best to communicate with the witness and to intervene in an interview or examination where they observe a communication breakdown.

For further consideration

While this recommendation is directed to states and territories, the Australian Government supports victims of comparable Commonwealth offences being afforded the same protections. Some jurisdictions are already piloting intermediary schemes and these should be fully assessed before settling a position on this recommendation. Consideration will need to be given to how and whether a Commonwealth scheme could supplement or stand alongside these schemes so as to not complicate processes or overburden court resources.

116

No.

RECOMMENDATION

RESPONSE

STATUS

60

State and territory governments should work with their courts administration to ensure that ground rules hearings are able to be held - and are in fact held - in child sexual abuse prosecutions to discuss the questioning of prosecution witnesses with specific communication needs, whether the questioning is to take place via a pre-recorded hearing or during the trial. This should be essential where a witness intermediary scheme is in place and should allow, at a minimum, a report from an intermediary to be considered.

For further consideration

As above. Compliance would require legislative change.

61

The following special measures should be available in child sexual abuse prosecutions for complainants, vulnerable witnesses and other prosecution witnesses where the prosecution considers it necessary: a.

giving evidence via closed circuit television or audio-visual link so that the witness is able to give evidence from a room away from the courtroom

b.

allowing the witness to be supported when giving evidence, whether in the courtroom or remotely, including, for example, through the presence of a support person or a support animal or by otherwise creating a more child- friendly environment

c.

if the witness is giving evidence in court, using screens, partitions or one-way glass so that the witness cannot see the accused while giving evidence

d.

clearing the public gallery of a courtroom during the witness’s evidence

e.

the judge and counsel removing their wigs and gowns.

Accept

Part IAD of the

Crimes Act 1914

(Cth) contains a broad

range of protections for vulnerable persons engaging in legal proceedings. Recommendations (a) through (d) are provided for in Part IAD. Recommendation (e) is not explicitly provided for, but this is at the discretion of individual judges and counsel and should not require legislative change.

62

State and territory governments should introduce legislation to allow a child’s competency to give evidence in child sexual abuse prosecutions to be tested as follows: a.

where there is any doubt about a child’s competence to give evidence, a judge should establish the child’s ability to understand basic questions asked of them by asking simple, non-theoretical questions - for example, about their age, school, family et cetera

b.

where it does not appear that the child can give sworn evidence, the judge should simply ask the witness for a promise to tell the truth and allow the examination of the witness to proceed.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law. The Australian Government will work with states and territories to discuss reform proposals that impact across multiple jurisdictions.

117

PART THREE:

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No.

RECOMMENDATION

RESPONSE

STATUS

63

State and territory governments should provide adequate interpreting services such that any witness in a child sexual abuse prosecution who needs an interpreter is entitled to an interpreter who has sufficient expertise in their

primary language, including sign language, to provide an accurate and impartial translation.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law. The Australian Government will work with states and territories to discuss reform proposals that impact across multiple jurisdictions.

64

State and territory governments should consider or reconsider the desirability of partial codification of judicial directions now that Victoria has established a precedent from which other jurisdictions could develop their own reforms.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law. The Australian Government will work with states and territories to discuss reform proposals that impact across multiple jurisdictions.

65

Each state and territory government should review its legislation and introduce any amending legislation necessary to ensure that it has the following provisions in relation to judicial directions and warnings: a.

delay and credibility:

Legislation should provide that:

i.

there is no requirement for a direction or warning that delay affects the complainant’s credibility

ii.

the judge must not direct, warn or suggest to the jury that delay affects the complainant’s credibility unless the direction, warning or suggestion is requested by the accused and is warranted on the evidence in the particular circumstances of the trial

iii.

in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’

b.

delay and forensic disadvantage:

Legislation should provide that:

i.

there is no requirement for a direction or warning as to forensic disadvantage to the accused

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law.

118

No.

RECOMMENDATION

RESPONSE

STATUS

65

ii.

the judge must not direct, warn or suggest to the jury that delay has caused forensic disadvantage to the accused unless the direction, warning or suggestion is requested by the accused and there is evidence that the accused has suffered significant forensic disadvantage

iii.

the mere fact of delay is not sufficient to establish forensic disadvantage

iv.

in giving any direction, warning or comment, the judge should inform the jury of the nature of the forensic disadvantage suffered by the accused

v.

in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’

c.

uncorroborated evidence:

Legislation should provide that the judge must

not direct, warn or suggest to the jury that it is ‘dangerous or unsafe to convict’ on the uncorroborated evidence of the complainant or that the uncorroborated evidence of the complainant should be ‘scrutinised with great care’

d.

children’s evidence:

Legislation should provide that:

i.

the judge must not direct, warn or suggest to the jury that children as a class are unreliable witnesses

ii.

the judge must not direct, warn or suggest to the jury that it would be ‘dangerous or unsafe to convict’ on the uncorroborated evidence of a child or that the uncorroborated evidence of a child should be ‘scrutinised with great care’

iii.

the judge must not give a direction or warning about, or comment on, the reliability of a child’s evidence solely on account of the age of

the child.

119

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

66

The New South Wales Government, the Queensland Government and the government of any other state or territory in which Markuleski directions are required should consider introducing legislation to abolish any requirement for such directions.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law.

67

State and territory governments should support and encourage the judiciary, public prosecutors, public defenders, legal aid and the private Bar to implement regular training and education programs for the judiciary and legal profession in relation to understanding child sexual abuse and current social science research in relation to child sexual abuse.

Noted

The Australian Government provides funding to the Australasian Institute of Judicial Administration and the National Judicial College of Australia for the training and education of judicial personnel including judges and magistrates. The Australian Government supports and encourages regular training and education programs in relation to understanding child sexual abuse. However, the federal courts do not have jurisdiction to hear child sexual offence proceedings.

68

Relevant Australian governments should ensure that bodies such as: a.

the Australasian Institute of Judicial Administration

b.

the National Judicial College of Australia

c.

the Judicial Commission of New South Wales

d.

the Judicial College of Victoria

are adequately funded to provide leadership in making relevant information and training available in the most effective forms to the judiciary and, where relevant, the broader legal profession so that they understand and keep up to date with current social science research that is relevant to understanding child sexual abuse.

Accept in principle

The Australian Government provides funding to the Australasian Institute of Judicial Administration and the National Judicial College of Australia for the training and education of judicial personnel including judges and magistrates. The Australian Government supports and encourages regular training and education programs in relation to understanding child sexual abuse.

69

In any state or territory where provisions such as those in sections 79(2) and

108C of the Uniform Evidence Act or their equivalent are not available, the relevant government should introduce legislation to allow for expert evidence in relation to the development and behaviour of children generally and the development and behaviour of children who have been victims of child sexual abuse offences.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law. The Australian Government commits to prioritising collaboration with States and Territories.

120

No.

RECOMMENDATION

RESPONSE

STATUS

70

Each state and territory government should lead a process to consult the prosecution, defence, judiciary and academics with relevant expertise in relation to judicial directions containing educative information about children and the impact of child sexual abuse, with a view to settling standard directions and introducing legislation as soon as possible to authorise and require the directions to be given. The National Child Sexual Assault Reform Committee’s recommended mandatory judicial directions and the Victorian Government’s proposed directions on inconsistencies in the complainant’s account should be the starting point for the consultation process, subject to the removal of the limitation in the third direction recommended by the National Child Sexual Assault Reform Committee in relation to children’s responses to sexual abuse so that it can apply regardless of the complainant’s age at trial.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law. The Australian Government commits to prioritising collaboration with States and Territories.

71

In advance of any more general codification of judicial directions, each state and territory government should work with the judiciary to identify whether any legislation is required to permit trial judges to assist juries by giving relevant directions earlier in the trial or to otherwise assist juries by providing them with more information about the issues in the trial. If legislation is required, state and territory governments should introduce the necessary legislation.

Noted

The Commonwealth is a Uniform Evidence Law jurisdiction and will need to be involved in any discussions relating to proposed legislative changes to the Uniform Evidence Law. The Australian Government commits to prioritising collaboration with States and Territories.

72

Each state and territory government should work with its courts, prosecution, legal aid and policing agencies to ensure that delays are reduced and kept to a minimum in prosecutions for child sexual abuse offences, including through measures to encourage: a.

the early allocation of prosecutors and defence counsel

Accept

The CDPP’s Victims of Crime Policy recognises that all reasonable steps should be taken to endeavour to have continuity of CDPP staff (both legal and from the CDPP Witness Assistance Service), particularly in cases involving vulnerable victims such as children. CDPP procedure is for a matter to be allocated to a prosecutor as soon as it comes into the CDPP. As far as reasonably practicable, that prosecutor will retain carriage of the matter for the life of the prosecution. The CDPP is compliant with this recommendation.

121

PART THREE:

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No.

RECOMMENDATION

RESPONSE

STATUS

b.

the Crown - including subsequently allocated Crown prosecutors - to be bound by early prosecution decisions

Accept in principle

All prosecution decisions are made by an appropriate officer in accordance with the CDPP Decision-making Matrix. The CDPP is of the view that the prosecution should stand by earlier decisions unless they are wrong or otherwise not in the public interest.

c.

appropriate early guilty pleas

Accept

The CDPP has issued a National Legal Direction for the early resolution of matters. The CDPP is compliant with this recommendation.

d.

case management and determination of preliminary issues before trials.

Accept

The CDPP regularly participates in court run case management and pre-trial hearings to determine preliminary issues. The CDPP is compliant with this recommendation.

73

In those states and territories that have a qualified privilege in relation to sexual assault communications, the relevant state or territory government should work with its courts, prosecution and legal aid agencies to implement any necessary procedural or case management reforms to ensure that complainants are effectively able to claim the privilege without risking delaying the trial.

Noted

The Commonwealth does not have a qualified privilege. The Australian Government commits to prioritising collaboration with States and Territories.

74

All state and territory governments (other than New South Wales and South Australia) should introduce legislation to provide that good character be excluded as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending, similar to that applying in New South Wales and South Australia.

Accept

This recommendation has been implemented by the Australian Government through the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017.

75

State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed.

Accept

This recommendation has been implemented by the Australian Government through the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017.

122

No.

RECOMMENDATION

RESPONSE

STATUS

76

State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed.

Accept

This recommendation has been implemented by the Australian Government through the Crimes Legislation Amendment (Sexual Crimes Against Children and Community Protection Measures) Bill 2017.

77

State and territory governments, in consultation with their respective Directors of Public Prosecutions, should improve the information provided to victims and survivors of child sexual abuse offences to: a.

give them a better understanding of the role of the victim impact statement in the sentencing process

Accept

The CDPP is in the process of improving material regarding victim impact statements. The CDPP Witness Assistance Service also provides assistance to victims in relation to victim impact statements.

b.

better prepare them for making a victim impact statement, including in relation to understanding the sort of content that may result in objection being taken to the statement or parts of it

Accept

The CDPP is in the process of improving material regarding victim impact statements. The CDPP Witness Assistance Service also provides assistance to victims in relation to victim impact statements.

78

State and territory governments should ensure that, as far as reasonably practicable, special measures to assist victims of child sexual abuse offences to give evidence in prosecutions are available for victims when they give a victim impact statement, if they wish to use them

Accept

Implemented. Subsection 16AB(7) of the

Crimes Act

1914

(Cth) provides that any protections available

under Part IAD about protecting vulnerable persons are available for the reading of a victim impact statement or cross-examination of the maker of the statement. Part IAD covers cross examination, special facilities for vulnerable persons to give evidence, use of video recordings and special rules for later trials.

123

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

79

State and territory governments should introduce legislation, where necessary, to expand the Director of Public Prosecution’s right to bring an interlocutory appeal in prosecutions involving child sexual abuse offences so that the

appeal right: a.

applies to pre-trial judgments or orders and decisions or rulings on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case

For further consideration

The High Court of Australia has noted on many occasions that the criminal process should not be fragmented by interlocutory appeals and applications. Implementation of this recommendation would be contrary to long standing procedure and requires more consideration.

b.

is not subject to a requirement for leave

For further consideration

The High Court of Australia has noted on many occasions that the criminal process should not be fragmented by interlocutory appeals and applications. Implementation of this recommendation would be contrary to long standing procedure and requires

more consideration.

c.

extends to ‘no case’ rulings at trial.

For further consideration

The CDPP supports legislative reform to give the prosecution the right to appeal “no case” decisions in child sexual abuse matters. This will significantly enhance the rights of victims.

80

State and territory governments should work with their appellate court and the Director of Public Prosecutions to ensure that the court is sufficiently well resourced to hear and determine interlocutory appeals in prosecutions involving child sexual abuse offences in a timely manner.

Noted

This is a matter for states and territories.

124

No.

RECOMMENDATION

RESPONSE

STATUS

81

Directors of Public Prosecutions should amend their prosecution guidelines, where necessary, in relation to the decision as to whether there should be a retrial following a successful conviction appeal in child sexual abuse prosecutions. The guidelines should require that the prosecution consult the complainant and relevant police officer before the Director of Public Prosecutions decides whether to retry a matter.

Accept

The CDPP’s Victims of Crime Policy and Prosecution Policy of the Commonwealth recognise that the views of any victims, where those views are available, and where it is appropriate, to be considered and taken into account when deciding whether it is in the public interest to: a. commence a prosecution; b. discontinue a prosecution; c. agree to a plea negotiation; or d. decline to proceed with a prosecution after

a committal.

The CDPP view is that this includes a decision as to whether a matter should proceed to re-trial.

82

State and territory governments should ensure that a relevant government agency, such as the Office of the Director of Public Prosecutions, is monitoring the number, type and success rate of appeals in child sexual abuse prosecutions and the issues raised to: a.

identify areas of the law in need of reform

b.

ensure any reforms - including reforms arising from the Royal Commission’s recommendations in relation to criminal justice, if implemented - are working as intended.

Accept

The CDPP has robust systems that record all data concerning the outcomes of prosecutions. The CDPP practice group model ensures consistency on a national basis and identifying areas for legislative reform is part of Branch Action Plans. The CDPP is compliant with this recommendation.

83

State and territory governments (other than the Northern Territory) should give further consideration to whether the abolition of the presumption that a male under the age of 14 years is incapable of having sexual intercourse should be given retrospective effect and whether any immunity which has arisen as a result of the operation of the presumption should be abolished. State and territory governments (other than the Northern Territory) should introduce any legislation they consider necessary as a result of this consideration.

Noted

This recommendation does not fall within the Australian Government’s jurisdiction as there is no equivalent presumption in Commonwealth criminal legislation.

125

PART THREE:

CRIMINAL JUSTICE REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

84

State and territory governments should review their legislation - and if necessary introduce amending legislation - to ensure that complainants in child sexual abuse prosecutions do not have to give evidence on any additional occasion in circumstances where the accused, or one of two or more co-accused, is a juvenile at the time of prosecution or was a juvenile at the time of the offence.

Accept

Implementation of this recommendation would require amendment to the

Crimes Act 1914

(Cth).

85

State and territory governments should keep the interaction of: a.

their legislation relevant to regulatory responses to institutional child

sexual abuse

b.

their crimes legislation and the crimes legislation of all other Australian jurisdictions, particularly in relation to child sexual abuse offences and sex offender registration

under regular review to ensure that their regulatory responses work together effectively with their relevant crimes legislation and the relevant crimes legislation of all other Australian jurisdictions in the interests of responding effectively to institutional child sexual abuse.

Accept

Commonwealth legislation is constantly under review to ensure it is effective and appropriate.

126 Part Four: Redress and Civil Litigation Report No.

RECOMMENDATION

RESPONSE

STATUS

The Australian Government is establishing the National Redress Scheme in response to the Royal Commission’s recommendations regarding Redress.

85

State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or

was a child.

Accept

The Commonwealth has taken action to remove limitation periods where it has jurisdiction to do so. On 4 May 2016, the former Attorney-General, Senator the Hon George Brandis, made a Legal Services Direction (Time barred child abuse claims - 4 May 2016) directing Commonwealth agencies not to plead a defence based on an expired limitation period.

86

State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past.

Accept

See recommendation 85.

87

State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period.

Noted

This recommendation is a matter for state and territory governments.

88

State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented.

Accept

See recommendation 85.

89

State and territory governments should introduce legislation to impose a non- delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution.

Noted

This recommendation is a matter for state and

territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively to

the Commonwealth.

127

PART FOUR:

REDRESS AND CIVIL LITIGATION REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

90

The non-delegable duty should apply to institutions that operate the following facilities or provide the following services and be owed to children who are in the care, supervision or control of the institution in relation to the relevant facility or service: a.

residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care

b.

day and boarding schools and early childhood education and care services, including long day care, family day care, outside school hours services and preschool programs

c.

disability services for children

d.

health services for children

e.

any other facility operated for profit which provides services for children that involve the facility having the care, supervision or control of children for a period of time but not including foster care or kinship care

f.

any facilities or services operated or provided by religious organisations, including activities or services provided by religious leaders, officers or personnel of religious organisations but not including foster care or

kinship care.

Noted

This recommendation is a matter for state and territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively

to the Commonwealth.

91

Irrespective of whether state and territory parliaments legislate to impose a non-delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse. The ‘reverse onus’ should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed.

Noted

This recommendation is a matter for state and territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively

to the Commonwealth.

128

No.

RECOMMENDATION

RESPONSE

STATUS

92

For the purposes of both the non-delegable duty and the imposition of liability with a reverse onus of proof, the persons associated with the institution should include the institution’s officers, office holders, employees, agents, volunteers and contractors. For religious organisations, persons associated with the institution also include religious leaders, officers and personnel of the

religious organisation.

Noted

This recommendation is a matter for state and territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively

to the Commonwealth.

93

State and territory governments should ensure that the non-delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively.

Noted

This recommendation is a matter for state and territory governments.

94

State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings: a.

the property trust is a proper defendant to the litigation

b.

any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.

Noted

This recommendation is a matter for state and territory governments. The Australian Government is assessing whether relevant state and territory law applies effectively

to the Commonwealth.

95

The Australian Government and state and territory governments should consider whether there are any unincorporated bodies that they fund directly or indirectly to provide children’s services. If there are, they should consider requiring them to maintain insurance that covers their liability in respect of institutional child sexual abuse claims.

For further consideration

The Australian Government will consider this recommendation further in consultation with state and territory governments and unincorporated bodies to assess the most viable approach to give effect to this recommendation.

96

Government and non-government institutions that receive, or expect to receive, civil claims for institutional child sexual abuse should adopt guidelines for responding to claims for compensation concerning allegations of child sexual abuse.

Accept

The Australian Government has developed Guiding Principles for Commonwealth entities when responding to civil claims concerning allegations of institutional child sexual abuse.

97

The guidelines should be designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses to claims.

Accept

The Guiding Principles are designed to minimise potential re-traumatisation of claimants.

129

PART FOUR:

REDRESS AND CIVIL LITIGATION REPORT

No.

RECOMMENDATION

RESPONSE

STATUS

98

The guidelines should include an obligation on the institution to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified.

Accept

The Guiding Principles include the obligation to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified.

99

Government and non-government institutions should publish the guidelines they adopt or otherwise make them available to claimants and their legal representatives.

Accept

The Guiding Principles in Guidance Note 13 are available on the Attorney-General’s Department’s website.