Independent Oversight System

The Department of the Premier and Cabinet is leading the work to develop a system of independent oversight that improves child safety in organisations. Public comments were invited via an online survey on the design of the system between November 2020 and February 2021.

Children and young people regularly come into contact with organisations and engage in activities outside their home. 

The Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) highlighted the numerous times and ways children and young people reported abuse experienced outside the home and were not believed or no action was taken. 

The Royal Commission recommended more independent scrutiny or oversight of organisations engaged in child-related work to avoid the problems of the past, prevent abuse occurring in the future, and respond swiftly to allegations when they occur.  Other reports have also recommended changes to the State’s oversight system.

The Department of the Premier and Cabinet (DPC) is leading the work to develop a system of independent oversight that improves child safe cultures and practices in organisations.  As child safety is a whole of community responsibility, we invited comments about particular elements of the system and how they will work to inform our advice to Government.

The consultation built on previous reports, developments in other jurisdictions, and consultations that have occurred to date. 

The online survey has now closed. 

The online survey on the design of the independent oversight system was open from 27 November 2020 to 26 February 2021.

Thank you to all those who contributed to the consultation. Your feedback will be considered as advice on the design of the independent oversight system is being developed for Government.

DPC will publish a consultation summary report of what we heard through the consultation process. All survey responses will be treated as public, and parts may be published unless you indicated in your response that it is confidential.  All requests for confidentiality will be respected and dealt with in accordance with any applicable laws, including the Freedom of Information Act 1992 (WA).

For further information on the independent oversight system, you may like to view the frequently asked questions for organisations or for parents and carers .

DPC is continuing to undertake targeted consultations with key stakeholders on particular aspects of the oversight system to inform the advice to Government.

What should an independent oversight system look like?

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The independent oversight mechanisms for organisations engaged in child-related work need to work together as a cohesive, integrated system to achieve better outcomes for children through a mix of prevention, monitoring and compliance activities.

The principles we are applying to the design of the system are:

  • the interests of children and young people are a primary consideration within the system
  • the system needs to make sense to children and young people, their family members, carers, or advocates acting on their behalf
  • the system needs to be culturally aware and responsive
  • the system supports a focus on building capability to meet requirements through prevention, education and practical tools
  • the system supports a responsive and risk-based approach to monitoring and compliance
  • integration with existing regulation to minimise regulatory burden on organisations
  • the system supports coordination, collaboration and information sharing between oversight bodies to meet common child safe objectives
  • roles and responsibilities of oversight bodies within the system are clear with minimal duplication, gaps and overlaps
  • the functions of the oversight bodies within the system and within individual oversight bodies do not conflict or compete with each other (or if they do, can be managed, for example, through legislative based mechanisms).

A set of principles to create child safe organisations

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The Royal Commission recommended 10 child safe standards to improve child safe cultures and practices across all sectors providing services to children and young people. The standards have since been incorporated into the National Principles for Child Safe Organisations (National Principles) which were agreed by the Commonwealth, state and territory governments in February 2019.

The National Principles are:

  1. Child safety and wellbeing is embedded in organisational leadership, governance and culture.
  2. Children and young people are informed about their rights, participate in decisions affecting them and are taken seriously.
  3. Families and communities are informed and involved in promoting child safety and wellbeing.
  4. Equity is upheld and diverse needs respected in policy and practice.
  5. People working with children and young people are suitable and supported to reflect child safety and wellbeing values in practice.
  6. Processes to respond to complaints and concerns are child focused.
  7. Staff and volunteers are equipped with the knowledge, skills and awareness to keep children and young people safe through ongoing education and training.
  8. Physical and online environments promote safety and wellbeing while minimising the opportunity for children and young people to be harmed.
  9. Implementation of the national child safe principles is regularly reviewed and improved.
  10. Policies and procedures document how the organisation is safe for children and young people.

The National Principles are not ‘one size fits all’ and allow flexibility in implementation by organisations according to their type, size and capacities and levels of engagement with children and young children.

For more information on the National Principles, please go to the Australian Human Rights Commission website.

The Royal Commission recommended that the National Principles be implemented by organisations engaged in child-related work, including schools, sporting groups, out-of-home care providers and in youth detention settings, and that their implementation be independently monitored and enforced.

Some organisations are in the process of implementing the National Principles, for example, some sporting organisations that are associated with national sporting bodies, through contracting arrangements with government, or have been using the guidelines and tools published by the WA Commissioner for Children and Young People to enhance their child safe strategies.

Which organisations must legally be safe for children?

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The Royal Commission was of the view that all organisations should strive to be child safe, but recommended that organisations or institutions providing the following services to children and young people should be legally required to apply the National Principles for Child Safe Organisations (National Principles):

  • accommodation and residential services for children, including overnight excursions or stays
  • activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children
  • childcare or minding services
  • child protection services, including out-of-home care
  • clubs and associations with a significant membership of, or involvement by, children
  • coaching or tuition services for children
  • commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions
  • disability services for children
  • education services for children
  • health services for children
  • justice and detention services for children, including immigration detention facilities
  • transport services for children, including school crossing services.

These service categories broadly mirror the categories in the definition of child-related work in the Working with Children (Criminal Record Checking) Act 2004 (WA). An estimated 25,000 organisations in WA may be required to comply with the National Principles.

The Joint Standing Committee for the Commissioner for Children and Young People of the WA Parliament, in its recent report From Words to Action: Fulfilling the obligation to be child safe, suggested that in WA the categories of organisations required to apply the National Principles should also include organisations that have indirect contact with children, such as shopping centres, public transport, restaurants, theatres, and stadiums, and medical centres that do not provide children’s health services.

The Victorian legislation does not extend to organisations that have indirect contact with children, and a recent review of Victoria’s child safe standards highlighted the need to balance the risk of harm with regulatory burden on organisations.

Supporting organisations to be child safe

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To help organisations implement the National Principles for Child Safe Organisations (National Principles), the Joint Standing Committee for the Commissioner for Children and Young People in its recent report From Words to Action: Fulfilling the obligation to be child safe (PDF) asked government to give serious consideration to professionalising the role of a child safeguarding manager so there are people skilled in child safe practices to assist organisations with developing a child safe workforce, and child safe strategies and processes.

The Joint Standing Committee suggested that child safeguarding managers could be made available in a variety of ways, such as being located within organisations, across sectors or professional bodies, positioned within government, or have designated positions established as part of the independent oversight capability building support function for the National Principles.

What powers should an independent oversight body have?

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The oversight body will work with organisations to build their capability to implement the National Principles for Child Safe Organisations (National Principles), monitor their progress, identify where further support may be required, and take action in circumstances of non-compliance. 

Working with sector regulators and leaders – co-regulation

Many organisations engaged in child-related work are already covered by a sector regulator, such as a school registration authority, or by a peak body. The independent oversight body could work with these other bodies so that organisations do not have to deal with multiple regulators. This could range from capability building activities to delegating compliance monitoring and enforcement functions if the sector regulator had sufficient powers.

An example of how a co-regulatory approach may work in practice is where an organisation is required to be registered or obtain a permit and meeting the National Principles is made a requirement of registration or holding the permit. The oversight body could delegate a function to the sector regulator to monitor that organisation’s compliance with meeting the National Principles.

A co-regulatory approach would recognise that a single oversight body may not have the capacity to oversee the large number of organisations to be covered by the National Principles which, in WA, is estimated to be 25,000.

Ensuring child safe organisations - compliance monitoring and enforcement powers

The Royal Commission recommended that the oversight body takes a responsive, risk-based approach to monitoring and enforcement of the National Principles for Child Safe Organisations (National Principles). This would involve a range of persuasive strategies, such as capability building through education and advice escalating to more coercive strategies such as notices to comply and financial penalties. The oversight body’s choice on which strategy it uses would be based on the level of risk to children and young people and how the organisation responds to the strategies.

Figure 1 developed by the Office of the Children’s Guardian NSW, which has been allocated the independent oversight role in that State, shows how the responsive, risk-based approach could be applied.

Monitoring strategies by the oversight body could include reviews, investigations and reports supported by information gathering powers, such as the power of entry to inspect premises and observe activities, and the power to compel the production of documents.

A question for consideration is whether the power of entry should be exercised with or without warning. In Victoria, section 29 of the Child Wellbeing and Safety Act 2005 (VIC) requires the oversight body to provide seven day’s notice of an inspection but allows for inspection without written notice in exceptional circumstances if the relevant entity consents to the inspection.

Other strategies could include embedding requirements in procurement processes, contract creation and contract management. The WA Department of Finance has included a clause in community services and commercial contract templates to encourage compliance with the National Principles. Possible enforcement strategies could range from seeking a declaration from a court for non-compliance if an organisation does not produce requested documents or fails to rectify non-compliance, financial penalties, public naming of non-compliant organisations, deregistering an organisation, or suspending or terminating the funding of an organisation.

Flow chart of child safe standards to guide practice and outcomes rated by low and high risk. Low risk is supporting child safety, followed by monitoring child safety, administrative enforcement and at the high risk level is court enforcement
Figure 1: Reproduced with permission from the Office of the Children's Guardian NSW (OCG)

 

Supporting children and young people to make a complaint of abuse

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The Royal Commission recommended that an independent oversight body in each state and territory be responsible for monitoring and enforcing the National Principles for Child Safe Organisations (National Principles), and noted that governments could enhance the roles of existing children’s commissioners or guardians for this purpose.

The Joint Standing Committee for the Commissioner for Children and Young People in its report From Words to Action: Fulfilling the obligation to be child safe suggested the Commissioner for Children and Young People would be suitable for this role in WA.

The Commissioner for Children and Young People has also released a discussion paper in support of his office being given the oversight role for the National Principles and for accrediting out-of-home care providers against particular standards, including the National Principles, and compliance monitoring against those standards.

In developing the oversight system, an important function to consider is support for children and young people who are trying to navigate the system and make complaints of abuse, particularly for children and young people who do not have a parent, family member or carer who can represent their interests.

The Joint Standing Committee’s report particularly highlighted the need for children in care to have access to independent individual advocacy.

The Commissioner for Children and Young People has a role to advocate for children and young people at a system level, but does not have a function to provide advocacy for individual cases. The Advocate for Children in Care within the Department of Communities provides individual advocacy for children in care.

An individual advocacy function within the independent oversight system could include assisting children and young people navigate complaints processes and representing the interests of children and young people in formal complaints processes.

There is no best practice model in Australia for the combination of oversight functions with advocacy functions, but an important issue to consider is whether the function to advocate for individual children and young people and their current experiences while also being tasked with reviewing and oversighting compliance and responses creates a potential or perceived conflict of interest. 

A scheme to report employee misconduct involving children

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The Royal Commission found that organisations need to improve their responses to child abuse and recommended that state and territory governments set up reportable conduct schemes which oblige heads of organisations to notify an independent body of allegations and convictions of child abuse involving their employees, volunteers and contractors.

Draft legislation to establish a reportable conduct scheme in WA has been developed in the form of a Green Bill for consultation. 

The proposed scheme will apply to organisations that exercise a high degree of responsibility for children and where there is a heightened risk of child abuse.  These organisations will need to report the following types of conduct to the Ombudsman WA:

  • a sexual offence or sexual misconduct
  • physical assault committed against, with, or in the presence of a child
  • significant neglect of a child
  • any behaviour that causes significant emotional or psychological harm to a child; and
  • other prescribed offences.

The types of organisations to be covered by the scheme will include:

  • accommodation and residential services
  • religious institutions
  • childcare services
  • child protection and out-of-home care services
  • disability services
  • education services
  • health services
  • justice and detention services.

To assist organisations prepare for the new requirements, the scheme will be phased in over two years.

The proposed Bill will also make amendments to the Working with Children (Criminal Record Checking) Act 2004 (WA) so that reportable conduct findings can cause an assessment or re-assessment of a person who has a Working with Children Check card. 

Submission on the Green Bill closed on 31 January 2021.

More information

For a copy of the Green Bill go to the WA Ombudsman website. For an Information Sheet about the proposed reportable conduct scheme go to the WA Ombudsman  website.

Support services

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If you or anyone you know needs help, please contact one of the services listed:

 

Page reviewed 28 October 2021