1. Introduction

Across our report, we have focused on prevention and responses to child sexual abuse in government institutions, particularly within government schools and health services, the out of home care system, and youth detention. We also have considered the systems that respond to abuse, including the criminal and civil law justice systems and psychological and support services. We make a range of recommendations specific to those institutions and systems. This chapter focuses on the oversight of a child safe system across Tasmania more broadly.

Every member of the Tasmanian community has a role to play in keeping children safe. Whether in their role as staff member, volunteer, parent or carer, trusted family friend or bystander—we consider it is critical that everyone has at least a basic understanding of child sexual abuse, including the factors that increase its likelihood and the signs that it may have occurred.

This foundational understanding must counteract common myths and misconceptions about sexual abuse, the credibility of children, and the nature of perpetrators. It must equip everyone in the community with the skills to respond to disclosures of abuse—including awareness of who to report to and how to offer a supportive response.

The National Royal Commission directed most of its community-wide prevention recommendations to the Australian Government. However, we consider the Tasmanian Government has a role to make sure national prevention investment benefits and is accessible to Tasmania, and to ensure it also invests in addressing the specific community educational needs of Tasmanians. We consider community-wide education will give staff and volunteers who enter child-facing organisations a good baseline of knowledge that can then be further built upon.

We welcome the Tasmanian Government’s Child and Youth Safe Organisations Framework, which will see Tasmania implement recommendations from the National Royal Commission to legislate Child Safe Standards (called Child and Youth Safe Standards in Tasmania) and a Reportable Conduct Scheme overseen by an Independent Regulator. These complementary regulatory schemes are designed to ensure organisations that engage with children have embedded the essential requirements to maximise child safety, including:

• robust policies and practices
• appropriate training and professional development
• clear strategies to reduce risks of abuse
• effective and transparent processes for escalating and addressing child safety concerns.

We consider the effective implementation of these schemes to be the most important strategy to prevent abuse within organisations and to improve responses to complaints, when made.

We broadly endorse the Child and Youth Safe Organisations Act 2023 (‘Child and Youth Safe Organisations Act’). However, we recommend the functions of the Independent Regulator sit with a new Commission for Children and Young People in Tasmania, with expanded functions to oversee and monitor child safety (particularly within the out of home care and youth justice systems). We consider the Commissioner for Children and Young People should be the Independent Regulator.

While we consider a new Commission for Children and Young People should be the primary body to oversee the management of child safety concerns in organisational settings, we recognise there may be situations where other oversight bodies—including the Ombudsman, Integrity Commission and Registrar of the Registration to Work with Vulnerable People Scheme—will have a shared interest or responsibility for addressing risks to children in organisations. Recognising that each body has a role in receiving information and/or investigating complaints relating to misconduct or unlawful

behaviour of individuals working within public bodies, we recommend clarifying roles and responsibilities between these bodies. We also recommend formalising information-sharing arrangements under a memorandum of understanding and, where necessary, legislative change.

1. Community-wide prevention strategies

Improving community awareness and understanding of child sexual abuse is a fundamental requirement to protect children from harm. Institutions exist within the community and comprise individuals who may bring their own attitudes and understanding of child safety issues which, individually or taken together, can determine how an institution responds to risks of child sexual abuse.

Professor Ben Mathews, Research Professor, Queensland University of Technology leads the Australian Child Maltreatment Study, and told us community awareness of child sexual abuse was an important element of strengthening ‘the protective social fabric’ of our society.1 He added: ‘In the long-term, this [awareness] would be of more value than anything else. Whilst it is not an easy solution, this is the foundation of everything else’.2

Despite the significant awareness the National Royal Commission raised and the recent development of the National Strategy to Prevent and Respond to Child Sexual Abuse (described further in Section 2.1), it is clear there is much to be done to increase and improve community understanding of child sexual abuse. The Australian Childhood Foundation, together with Monash University, has conducted periodic studies tracking community attitudes relating to child sexual abuse since 2003 across Australia. Its most recent study in 2021 found little progress in the state of awareness and appreciation of the nature and gravity of child abuse amongst participants. The study described awareness of such matters being ‘virtually identical’ to earlier studies. The 2021 study showed that:

• Just over one in three respondents did not believe child abuse was a problem they needed to be personally concerned about.
• 32 per cent of respondents believed children make up stories of abuse.
• Seven out of 10 respondents could not remember seeing or hearing anything about child abuse in the media in the preceding 12 months.
• One in five respondents were ‘not at all’ confident on what to do if they suspected a child was being abused or neglected.3

The report noted:

The community lacks all of the building blocks required to prevent child abuse and adequately act to protect them from abuse and neglect. They are not aware of the true scale and impact of child abuse. They do not believe it is as widespread as it really is. They have a shallow definition of how it is defined, what its components are, how it develops … They lack confidence about when, what and why they should take action when exposed to information that children are being abused and neglected … These attitudes have been there for at least eighteen years and they have not changed.4

These findings, while shocking, did not surprise us. They reflect many of the views and attitudes that became apparent across different institutional settings through our Inquiry. We discuss some of these further in relation to community attitudes in Tasmania in Section 2.2.

The National Royal Commission made several recommendations relating to community-wide prevention, which were directed at the Australian Government. These included developing a national strategy to prevent child sexual abuse that encompassed a range of initiatives, including:

• social marketing campaigns targeting community awareness to increase knowledge of child sexual abuse—including challenging problematic attitudes that reflect myths and misconceptions
• prevention programs in preschools and schools and other community settings for children and young people, noting that such education can be linked with the existing Australian curriculums, such as respectful relationships and sexuality education
• online safety education for children, parents and other community members, supported by the Office of the eSafety Commissioner
• increased prevention education on child sexual abuse and harmful sexual behaviours for tertiary students entering child-related occupations
• help-seeking services targeting individuals who feel they may be at risk of sexually abusing children
• information on pathways to seek help if child sexual abuse is disclosed or suspected.5

The National Royal Commission recommended the Australian Government ensures prevention initiatives:

• align with relevant strategies relating to child maltreatment
• be appropriately tailored and targeted to reach different communities
• involve and engage children and young people in their design and development
• be based on best practice evidence of what works to prevent child sexual abuse and harmful sexual behaviours.6

1. National reforms relating to prevention

Since the National Royal Commission, the Australian Government has undertaken initiatives relevant to community-wide prevention of child sexual abuse, including:

• establishing the National Office for Child Safety on 1 July 2018, tasked with leading and implementing recommendations from the National Royal Commission, including the development of a national strategy7
• releasing the National Strategy to Prevent and Respond to Child Sexual Abuse 2021–2030 (‘National Strategy’) on 27 October 2021, supported by $307.5 million in implementation funding8
• delivering the initial five-year funding for establishing the National Centre for the Prevention of Child Sexual Abuse (ultimately named the National Centre for Action on Child Sexual Abuse (‘National Centre’)), which is a joint venture between Blue Knot Foundation, The Healing Foundation and the Australian Childhood Foundation, announced in October 2021.9

This National Centre is designed to ‘commission critical research, evaluate interventions and therapeutic programs, raise community awareness, reduce stigma and provide training’.10 In June 2023, the National Centre released Here for Change: Five Year Strategy 2023–2027, which is intended to transform the way child sexual abuse is understood and responded to in Australia.11

1. National Strategy to Prevent and Respond to Child Sexual Abuse

The National Strategy is an initiative of the Australian and state and territory governments. It is divided into four categories:

• National Strategy to Prevent and Respond to Child Sexual Abuse
• First National Action Plan
• Commitments
• Evaluation Reporting.12

The First National Action Plan and First Commonwealth Action Plan cover the period 2021–24, with subsequent three-year action plans scheduled for 2025–27 and 2028–30.13 The former Premier, the Honourable Peter Gutwein MP, was a signatory to the National Strategy, alongside the then Prime Minister and other state and territory leaders.

The National Strategy seeks to set up a nationally coordinated and consistent way to prevent and respond to child sexual abuse, including within families, by other people, in organisations and online.14 It is based on a public health approach. The prevention measures include:

• primary (aimed at the whole community and addressing the underlying causes)
• secondary (addressing the early warning signs that change the result for those at risk of being victims or perpetrators)
• tertiary (aimed at responding to child sexual abuse and preventing it from happening again)
• quaternary (evaluating the effectiveness of tertiary interventions).15

The First National Action Plan (which reflects the current priorities) has five themes. Most relevantly, preventing child sexual abuse is Theme 1, which covers ‘Awareness-raising, education and building child safe cultures’. Under this theme, there are six measures that the National Office for Child Safety leads. These measures are:

• implementing and promoting the National Principles for Child Safe Organisations (described in Section 3.2.1)
• setting up ongoing national reporting for non-government organisations to report against their progress on creating and maintaining child safe cultures
• enhancing national information-sharing arrangements relating to child safety and wellbeing
• supporting educational resources to ensure children and young people learn about wellbeing, relationships and safety (including online safety)
• working with the National Centre for Action on Child Sexual Abuse on education and the skills and capabilities of the workforces to respond to child sexual abuse
• delivering a national awareness raising campaign on child sexual abuse.16

1. Community awareness and attitudes in Tasmania

Through our Commission of Inquiry, we saw how a lack of awareness and understanding of child sexual abuse contributed to poor prevention and responses to it within government service systems and organisations. The most common problems we saw across all the different organisational contexts included a limited appreciation for the many and varied strategies perpetrators rely on to identify, groom and coerce their victims. We also saw how such strategies can sometimes enthral victims of abuse and make children and adolescents compliant and loyal towards the person who is abusing them, rather than fearful and avoidant.

Kathryn Fordyce, Chief Executive Officer of sexual assault service Laurel House, highlighted grooming as a particular area requiring further education in Tasmania, noting there are ‘considerable misconceptions’ around it that make ‘victim-blaming attitudes’ all too common:17

We need to educate people to identify the components of grooming and act on red flags and boundary breaches … this can be achieved by educating the community about what grooming looks like, providing examples and educating people to identify these components.18

We also observed simplistic understandings of ‘consent’—including a tendency to conflate concepts of consent with compliance and an absence of physical resistance from a victim. We sometimes observed a lack of appreciation of the many ways in which ‘consent’ is usually irrelevant in the context of child sexual abuse and the significant power disparity that often arises where adults are in a position of trust and authority over a young person.19 For example, in our commissioned research on children’s experiences of safety within Tasmanian organisations, two high school focus group participants argued that if a young person consented to a sexual relationship with a teacher it ‘might be OK’, which generated much debate within the focus group more broadly.20

The July 2022 report commissioned by the Sexual Assault Support Service, Sexual Violence in Southern Tasmania: Research Report for Sexual Assault Support Service Tasmania, considered ‘the scale of sexual violence, its nature, barriers to seeking help, and potential solutions’ in Tasmania.21 This also included some discussion of sexual abuse of children and young people.

This report highlighted a common narrow and simplistic understanding of consent and sexual abuse in the community, with the researchers noting:

Discussion of consent was rarely framed by stakeholders or community participants as positive, affirming, and enthusiastic agreement; instead, participants defined sexual violence in terms of the absence of consent.22

This report also highlighted how abusive relationships can sometimes be normalised, with one participant in the study reporting:

It’s not frowned upon for a 15- or 16-year-old to date someone in his mid-20s and be impregnated by him. … I mean, two of my siblings, are the children of what I would deem paedophilia. My father was 27, and that woman 14, for one of my brothers, and he was 29 and the girl 15 for my sister. I have siblings literally born of paedophilia. Yeah, and it was completely normalised. Their families didn’t care. They never thought it was weird. I didn’t realise it was weird until I grew up … it is horrific, and it is everywhere.23

The most troubling area in which we saw confusion regarding consent was for children in out of home care who were being sexually exploited by adults outside the service system, to which they were sometimes seen—including by Child Safety Services and Tasmania Police—as consenting, which is discussed in Chapter 9.

We also discuss how the language of consent in criminal justice proceedings relating to child sexual abuse contributes to distress and confusion for participants and the broader public in Chapter 16.

Across several institutional settings, we observed a limited understanding of what constitutes harmful sexual behaviours, the harm it causes victims and the most appropriate way to manage the risks associated with a young person using such behaviours. We discuss these in more detail in Volumes 3, 4, and 5 (relating to children in schools, out of home care and youth detention).

We also observed a tendency to doubt and downplay the complaints of children, with particular scepticism reserved for complaints made by young people who are considered to be ‘bad’ or ‘troubled’ (for example, in complaints handling in the context of Ashley Youth Detention Centre, discussed in Chapter 11). There often exists a corresponding predisposition to sympathise and believe the accounts of adults. This trust in adults contributed to misguided blame and responsibility, with an undue scrutiny and focus on the actions and behaviours of a victim-survivor rather than the conduct of their alleged abuser (refer for example to ‘Katrina’s experience’ in Chapter 5 or Case study 2 relating to Dr Tim (a pseudonym) in Chapter 14).24 It also included an undue concern for reputational and other impacts on a person accused of abuse or misconduct and inadequate care and consideration extended to the suffering and support needs of a victim-survivor (refer to Chapter 20 on State Service disciplinary processes).

We also saw failures to recognise that child sexual abuse is often perpetrated by everyday people working in positions of trust within the community. Dr Michael Guerzoni, Indigenous Fellow, University of Tasmania with expertise in criminology, described a common lack of sophistication in community understanding (in Tasmania and more broadly): ‘[P]erpetrators of child sexual abuse are [commonly] understood as sexual deviants and “bad apples”, and may be readily distinguished from other, “normal” people’. Dr Guerzoni told us this was a problem because:

[W]hen there is a fixed understanding as to what an offender is, that will colour all of the interpretations of institutional policy and procedure towards child sexual abuse and, in turn, it may lead to non-compliance with what is written down in the policies and procedures.25

Victim-survivor, Robert Boost, told us of the importance of not making assumptions about who is likely (or unlikely) to perpetrate abuse, noting the inherent power difference between adults and children:

Society needs to see every adult as being ‘capable’ of abusing children because of their relative positions of power towards children. This is made even more acute when an adult is in a position of power relative to other adults … We as a society need to recognise that real danger in order to protect our children, even if it means some adults’ lives will be made more difficult. We need to stop worrying about hurting adults, and look at the damage that is being done to children.26

We discuss ‘situational’ perpetrators of abuse (and related prevention strategies) in Section 3.1.

The Sexual Violence in Southern Tasmania: Research Report for Sexual Assault Support Service Tasmania report commissioned by the Sexual Assault Support Service also highlighted how sexual violence (and the attitudes that enable it) could be amplified in isolated and close-knit communities.27 As Mr Boost reminded us: ‘In a close-knit place like Tasmania, relationships often influence outcomes’.28

Michael Salter, Scientia Associate Professor of Criminology, School of Social Sciences, University of New South Wales, told us that rather than acting as a barrier to prevention of child abuse, Tasmania’s relatively small population and close-knit features could be a ‘resource that should be capitalised on’.29 Dr Salter cited bystander intervention programs (where members of an institution or community receive training on how to detect the signs of abuse and intervene effectively) and community mobilisation programs (which build community-wide connections to services and agencies to respond to social problems) as examples of prevention strategies that are well-suited to discrete communities.30

1. Tasmanian prevention initiatives

While we recognise National Royal Commission recommendations relating to primary prevention were directed largely at the Australian Government, we agree with the National Children’s Commissioner, Anne Hollonds, who noted the National Strategy (as well as the implementation of the National Principles for Child Safe Organisations, discussed in Section 3.2.1) are ‘important steps and will require the commitment of all federal, state and territory governments to be fully implemented’.31

In line with our terms of reference, our key recommendations for preventing child sexual abuse in Tasmania include implementing:

• a mandatory child sexual abuse prevention curriculum from early learning programs to year 12 students, drawing on expert evidence of best practice (refer to Recommendation 6.1 in Chapter 6)
• legislated Child and Youth Safe Standards for Tasmanian organisations engaging with children, overseen by an Independent Regulator (which has been implemented through the Child and Youth Safe Organisations Act and is discussed in Section 4.3).

However, we also consider it is important for the Tasmanian community to receive the full benefit of any national community education and awareness initiatives by ensuring they are fit-for-purpose and suited to the needs of Tasmanians.

We also consider it may be necessary for the Tasmanian Government to complement national initiatives by developing specific local content for Tasmanians. We understand the Department for Education, Children and Young People is working on a ‘tell someone’ website and accompanying public campaign, although we have limited information on this initiative.32

Dr Charlie Burton, Manager Policy, Tasmanian Council of Social Services, emphasised the importance of a public health approach to address child sexual abuse:

This means looking beyond practices in particular institutions or organisations and taking a whole-of-community lens, with action along the continuum from universal prevention, early intervention and targeted tertiary responses, as well as trauma informed support for recovery.33

Dr Burton recommended the Tasmanian Government work to translate national initiatives (such as those connected to the National Centre for Action on Child Sexual Abuse) to the Tasmanian context, guided by victim-survivors and Tasmanian organisations with expertise in sexual assault.34 Dr Burton also felt the Tasmanian Government had a clear role in funding general prevention programs itself:

In particular, it needs to drive change to address a societal culture that minimises or dismisses behaviours that escalate to child sexual abuse. It needs to invest in understanding the evidence of what works in prevention and early intervention and follow that up with resources and action.35

Ms Fordyce, whose organisation Laurel House currently designs and delivers a range of prevention programs in schools, workplaces and the broader community, told us her service could expand prevention initiatives with increased funding, rather than being ‘predominantly reactive service’:36

We could focus additional efforts towards preventing the occurrence of child sexual abuse by educating people working in and interacting with institutions where there are high incidences of abuse. We would like to be more visible in schools and the community so we can supplement formal training opportunities with incidental conversations with people who work with children to help them understand the critical role they play in preventing, identifying, responding to and reporting sexual abuse, and other forms of violence.37

Jillian Maxwell, Chief Executive Officer, Sexual Assault Support Service, which also delivers primary prevention programs, described some of the challenges for Tasmanian organisations to get funding for particular initiatives (for example, under the National Strategy). Ms Maxwell recognised the importance of being accountable for funding but described how ‘red tape’ associated with Commonwealth funding management was onerous.38 Ms Maxwell said such problems did not exist for state-based funding, which often benefited from closer relationships with ministers, advisors and grant managers that made managing such funding more straightforward as you ‘get a chance to talk them through the issues’.39

We consider it is important the Tasmanian Government ensures Tasmanians receive the full benefit of national prevention initiatives, by advocating to federal counterparts on the specific needs of Tasmanians to ensure such measures translate to tangible and meaningful change. We also consider the Tasmanian Government may need to invest in its own targeted community awareness initiatives to complement national strategies, where practical, using and drawing upon Commonwealth-funded materials and resources. Such programs should be developed to meet the Tasmanian context.

Recommendation 18.1

The Tasmanian Government should continue to advocate for Tasmania to receive the full benefit of Australian Government prevention strategies, including under the National Strategy to Prevent and Respond to Child Sexual Abuse 2021–2030.

1. Creating child safe organisations

Across our Commission of Inquiry, we have heard how some of the most trusted organisations have not been safe places for children. Many times, child sexual abuse could have been prevented or identified earlier if the organisation in question had taken a more proactive, targeted approach to identifying and addressing risks of abuse. This includes having an organisational culture vigilant to potential harms to children and that encourages and empowers anyone with child safety concerns to report them, with confidence that such reports will be taken seriously.

Earlier in this chapter, we discussed prevention initiatives designed to educate the entire Tasmanian community. However, we consider organisations that engage directly with children have additional responsibilities to prevent and address risks of abuse.

In this section, we discuss some of the evidence we received about how organisations can (and should) adopt ‘situational prevention’ strategies to reduce risks of child sexual abuse. Such strategies make organisations less vulnerable to motivated perpetrators who may actively seek environments in which they can abuse children. However, such strategies can also reduce the likelihood of abuse or harm from ‘situational’ perpetrators who may—under unsafe and permissive conditions—engage in inappropriate conduct with children.

The value of situational prevention is reflected in the National Principles for Child Safe Organisations. In Tasmania, these are reflected in the Child and Youth Safe Standards legislated through the Child and Youth Safe Organisations Act. As discussed in Section 4, this legislation requires child-facing and other in-scope organisations to take active steps to prevent harms to children through robust policies, practices and a child-centred culture. We support this legislative reform and consider its successful implementation a key pillar to prevent abuse within Tasmanian organisations.

Tasmania’s proposed Reportable Conduct Scheme, which complements the Child and Youth Safe Standards, will strengthen independent oversight for the response of an organisation to complaints or concerns, improving the mitigation of risk to children and young people. We expect organisations to examine the circumstances that contribute to reportable conduct they investigate, and work to further strengthen and refine their child-safe practices over time. In this sense, a reportable conduct scheme is a mechanism to ensure appropriate responses to reports of harm to children. It also offers a clear opportunity for organisations to learn, improve and prevent similar occurrences into the future.

1. Situational prevention of abuse within organisations

We sought evidence from relevant experts on how organisations can reduce the likelihood of child sexual abuse occurring. This included considering the features of organisations that were more, or less, likely to enable abuse to occur.

Dr Guerzoni defined situational crime prevention as ‘a theory of criminology that argues that crime occurs due to the interconnection of individual and environmental factors; it is not solely a matter of premeditated desires of this offender’.40 He noted the benefit of adopting a situational crime prevention model is that ‘it moves consideration away from endless debates about abuse causation … to emphasis on what can be done by organisations to prevent abuse based on empirical criminological research’.41

As foreshadowed, not all perpetrators of child sexual abuse have a pre-existing motivation to offend. Professor Donald Palmer, Graduate School of Management, University of California has expertise in organisational misconduct (including child sexual abuse) and told us some individuals only develop the motivation to offend against children after they have joined an organisation, describing them as ‘situational offenders’.42 Professor Palmer told us that situational offending can occur due to ‘individual psychological factors’ but also noted that ‘organisational structures and processes also can influence the likelihood that organisational participants will become situational child sexual abusers’.43

Professor Palmer noted situational offenders will abuse when they think children will be vulnerable to their advances and they are unlikely to be detected and punished. He stated:

For this reason, most situational prevention measures focus on creating conditions under which potential offenders believe that their advances will be rejected (for example, child sexual abuse training of children and youth) and believe that if successful, their advances will be detected (for example, prohibition of one-on-one staff/child interactions) and addressed (for example, staff training).44

Because some offenders are situational, Dr Guerzoni highlighted flaws with organisations adopting a ‘bad apples’ mentality, which has the organisation looking out for characteristics assumed to align with motivated sex offenders. Instead, it is more effective to consider the factors that are more likely to give rise to abuse. Dr Guerzoni gave some examples of the factors that may be relevant for organisations to consider:

[E]nvironments where few other persons are present, rooms without surveillance, professions which enable isolated interactions with minors or remote locations. Such situational factors tend to manifest in the circumstances of the profession. For example, helping the child change after sport, a consultation with a child in one’s office, staying behind after class, or driving a child home. These isolated environments are known to both create opportunity for offending, as well as precipitate thoughts of offending amongst perpetrators.45

The Independent Inquiry into the Tasmanian Department of Education’s Responses to Child Sexual Abuse undertaken by Professors Stephen Smallbone and Tim McCormack discussed how the physical environment of schools could heighten risks of abuse to students.46 We discuss this in greater detail in Volume 3.

Professor Mathews described the challenge of responding to grooming and boundary violations. He noted that, properly construed, grooming is an intentional act of cultivating a relationship to enable child sexual abuse. However, he noted:

A boundary violation could take place without an intention to sexually abuse the child in any proximate time. It may for example be an isolated mistake that could be the subject of positive intervention, such as an inappropriate comment in a text message or email. These types of instances involving adults should be easily remedied through proper education, policies and codes of conduct.47

Professor Palmer described how the dynamics of an organisation can shape and influence a person’s attitudes and behaviour, noting that ‘[a] person’s behaviour is subject to much more control within an organisation, when compared to other settings’.48 He said that organisations should invest in ensuring their policies, practices and culture prioritise child safety, rather than relying only on the goodwill and capabilities of the individuals within it.

Dr Guerzoni described the best approach as a partnership between the individual and the institution:

In that partnership, organisations must be willing to be aware and active in their monitoring of child safety matters. This should extend to ensuring staff are supported to make complaints (including that they are given time to make such complaints), staff are required or encouraged to undertake relevant professional development, and that matters of child safety are framed as a present (as opposed to historical) risk that is to remain consistently on the agenda.

Simultaneously, individuals must be willing to monitor the environment and their colleagues for risks or signs of grooming and victimisation. This includes being open to, and aware of, the fact that if that individual is not careful, they may put themselves in a position where they may be more susceptible to criminal decision making. Individuals must also be willing and open to raising complaints or concerns.49

Dr Guerzoni described how organisations can strengthen their policies by:

• recognising a criminal record check is not enough to determine the potential risk a person may pose to children
• considering child safety in interview and recruitment processes
• challenging myths (that sexual offending against children is only perpetrated by paedophiles) and helping staff to understand the situational factors that may contribute to abuse
• introducing requirements that minimise isolated interaction with children and try to mitigate situational risk factors.50

Robert Ryan, Executive Lead, Strategy and External Engagement, Life Without Barriers, described that organisation’s whole of organisation approach to child safety in its We Put Children First child sexual abuse prevention strategy:

The strategy is based on a situational prevention approach, which recognises that the risk of child sexual abuse can be reduced by making environmental and cultural changes within an organisation, rather than only focusing on the risk presented by particular individuals. To reduce the risk of child sexual abuse, organisations need to create conditions where offending is difficult, the risk of detection is high, environmental cues that can trigger offending are removed and permissibility is reduced.51

While Professor Palmer agreed these factors are important, he explained organisations are often looking for a ‘free lunch’ when attempting to become safer for children and young people.52 Policies go some way but are not a ‘comprehensive solution’ for the following reasons, stating: ‘They don’t address culture, they don’t address power, they don’t address informal groups, they don’t address socialisation’.53

Professor Palmer said there is much work to be undertaken by an organisation to ‘truly embed child safe practices in an organisation’.54 Professor Palmer described the first step for an organisation is to outline its mission and goals and assess the extent to which they conflict with child safety objectives ‘and then deal with that conflict in an honest fashion’.55 Professor Palmer gave an example of this tension in schools, where a balance needs to be struck between the benefit of fostering close student/teacher relationships that improve a child’s learning and development, and the risk that such dynamics can be open to abuse by teachers.56 Dr Guerzoni agreed on the importance of striking the right balance in managing risks to children as ‘[s]trict approaches to child safety may cause adults to not pursue proper or nurturing relationships with young people … for fear of not doing the right thing’.57

Associate Professor Tim Moore, Deputy Director, Institute of Child Protection Studies, Australian Catholic University, also cautioned against such situational prevention strategies having ‘unintended consequences’ by making adults reluctant to engage with children due to fears of how such behaviour would be perceived—for example, workers in residential care units being wary of hugging children in their care.58 A disproportionate emphasis on the risks adults can pose could also erode children and young people’s trust in those engaging with them.59 Associate Professor Moore told us of the importance of ensuring children and young people have the benefit of healthy connections with adults, using the example of the out of home care system:

Again, if you look at some of the lives of some of these children and young people who have been potentially sexually abused or physically harmed in their family environments, we put them through a system that discourages children and young people to have their intimacy needs met. When I’m talking about intimacy I’m not talking about sexual intimacy necessarily, I’m talking about to feel loved and cared for, to be hugged, you know, to feel like someone’s demonstrating their care and love for you in this physical kind of way. Kids are often denied that within the system and therefore don’t know what’s okay and what’s not okay and how to express themselves.60

We agree it is important that organisations are careful when assessing risks but must ensure their risk mitigation is proportionate and appropriate to their specific context and operating environment. It is also important that staff and volunteers are clear on appropriate standards of behaviour towards the children and young people they engage with. This is to limit the potential for inadvertent boundary breaches that may arise from a lack of experience or clarity on appropriate professional boundaries within the context of a particular organisation. Children and young people can benefit greatly from the services and care offered by organisations they interact with. The overwhelming majority of adults who provide services to children do so with their best interests at the forefront of their minds.

Striking the appropriate balance is entirely consistent with implementing Child and Youth Safe Standards, which encourage organisations to design and embed child safe practices suited to the services and care they provide. We discuss this in the next section.

1. Child Safe Standards

A note on language

Child Safe Standards is a term used by the National Royal Commission and adopted by certain jurisdictions. We use ‘Child Safe Standards’ where we specifically refer to the National Royal Commission or jurisdictions, such as Victoria, that use that term.

We use the term ‘Child and Youth Safe Standards’ when we refer to Tasmania’s implementation of these Standards, as this is the term adopted in the Child and Youth Safe Organisations Act. When we use this term, we intend for it to also encompass the Universal Principle, which is an additional Tasmanian requirement for organisations to protect Aboriginal cultural safety. Where Tasmanian witnesses have used ‘Child Safe Standards’ we have not altered the language.

Child Safe Standards reflect a set of principles and requirements that, taken together, articulate what constitutes a child safe organisation.61 The National Royal Commission developed ten Child Safe Standards and described them as interrelated, overlapping and of equal importance, noting they should be ‘dynamic and responsive’ rather than ‘static and definitive’.62 The National Royal Commission noted:

The standards are designed to be principle-based and focused on outcomes and changing institutional culture as opposed to setting prescriptive rules that must be followed or specific initiatives that must be implemented. This is to enable the standards to be applied to, and implemented by, institutions in a flexible way, informed by each institution’s nature and characteristics. The risk of child sexual abuse varies from institution to institution. Therefore, every institution needs to consider each standard and take time to identify risks that may arise in their context, and find ways to mitigate or manage those risks.63

1. National Principles for Child Safe Organisations

Following the release of the National Royal Commission report, the Australian Government tasked the former National Children’s Commissioner, Megan Mitchell, to lead the development of National Principles for Child Safe Organisations, which were ultimately endorsed by members of the Council of Australian Governments in February 2019, including the Tasmanian Government.64 These draw heavily on the Child Safe Standards the National Royal Commission developed but are framed to apply to a broader set of harms to children. National Children’s Commissioner, Anne Hollonds explained:

The National Principles cover all forms of potential harms, and adopt a child rights, strengths-based approach to organisational development. Applied collectively, they demonstrate that a child safe organisation is one that creates a culture that empowers and values children and young people, engages families and the broader community, adopts suitable strategies and takes appropriate action to promote child safety and wellbeing.65

National Principles for Child Safe Organisations

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 have informed and underpin many of the recommendations we have made in the chapters that relate to specific organisations.

Since the development of the National Principles, resources and guidance material have been created to support organisations to implement them. These include:

• a draft child and wellbeing policy template
• an example code of conduct
• an introductory self-assessment tool for organisations
• a checklist relating to online safety.66

SNAICC – National Voice for Our Children, Victorian Aboriginal Child Care Agency and the National Office for Child Safety have also developed a guide specifically designed to support organisations to embed cultural safety for Aboriginal children and young people within organisations, in line with the National Principles.67 Resources have also been developed at state and territory level, such as the Victorian and New South Wales guides to enabling children’s participation in decision making.68

As we discuss in Section 4.1, these National Principles largely form the basis of Tasmania’s legislated Child and Youth Safe Standards and will become mandatory for institutions that provide services to, or engage with, children from 2024 onwards.69

We heard of varied approaches to implementing the National Principles across the Tasmanian Government. This includes the following (non-exhaustive) initiatives:

• In the context of education, the relatively newly established Office of Safeguarding Children and Young People has been tasked with mapping the Department’s activities against the National Principles. Secretary, Department for Education, Children and Young People, Timothy Bullard, told us ‘this includes understanding where there may be overlap with work underway in response to recommendations of the [National] Royal Commission and the [Department of Education independent] inquiry, where there are gaps and the key areas in which work must be prioritised’.70 We note that since the education hearings, the Office of Safeguarding has broadened the remit of its work within an expanded Department for Education, Children and Young People to develop a whole of department framework for safeguarding children and young people that aligns with the National Principles.71
• In the context of health, the Child Safe Organisations Project team was established in 2021 to implement the National Principles and evaluate the Department of Health’s performance against them. The Tasmanian Government told us the Department of Health has since made progress implementing those National Principles, including delivering:
  • a signed Statement of Commitment to child safety and wellbeing by members of the Health Executive
  • a new Child and Young Person Advisory Panel to provide a process for seeking the views of children and young people on changes across the Department that affect them
  • a Child Safety and Wellbeing Policy that establishes the requirement to comply with the National Principles and children’s rights, and the roles and responsibilities of executive and senior leaders, and all staff in the Department of Health
  • a new Child Safety and Wellbeing Service to support the promotion of child safety and wellbeing, prevention of harm, analysis to identify trends, patterns and red flags, compliance and performance monitoring, and managing risks
  • increased mandatory child safeguarding training, clearer guidance to staff on recognising signs of harm and responding to disclosures of harm by children, and improvements to incident reporting to capture any child safeguarding concerns, among other initiatives.72
• In the context of youth justice, former Secretary of the Department of Communities, Michael Pervan, told us work was undertaken in 2021 to ‘contemporise all [Ashley Youth Detention Centre] policies and procedures to be compliant with Child Safe Standards’ alongside the commencement of a Learning and Development Framework.73 A commitment to the National Principles is also referenced in the Draft Youth Justice Blueprint 2022–2032.74
• In the context of out of home care, in July 2019, the Tasmanian Government created a policy obliging all government funded non-government organisations with significant liabilities under the National Redress Scheme to demonstrate they were engaging in child safe practices. This included mapping the services and existing standards and regulatory regimes against the National Principles. It also included developing a self-assessment tool the community sector could use.75

We note that much of this effort and initiative began during our Commission of Inquiry. We also observe that despite the Tasmanian Government’s commitment to the National Principles in 2019, their implementation within Tasmanian Government departments is in its relative infancy.

While the obligations imposed by Tasmania’s Child and Youth Safe Standards start from 2024, there has been nothing preventing an institution from adopting these requirements voluntarily. Indeed, the National Royal Commission recommended all organisations implement its Child Safe Standards to uphold the rights of the child, as required by Article 3 of the United Nations Convention on the Rights of the Child.76 While our terms of reference limit our recommendations to government (or government funded) organisations, we consider all organisations committed to the safety of children should take steps to apply the National Principles, whether they are legislatively bound to or not. Organisations that will be legislatively mandated to comply from 2024 may also wish to take steps to comply with the requirements before they are legislatively required to do so.

Recommendation 18.2

All organisations engaging in child-related activities should voluntarily comply with the National Principles for Child Safe Organisations (as reflected in Tasmania’s Child and Youth Safe Standards) to the greatest extent possible, regardless of whether they are legislatively bound to do so or when their legislative obligations commence.

1. Legislated Child Safe Standards

The National Royal Commission recommended Child Safe Standards be legislated and apply to a range of organisations that engage with children. These include health, disability, education services, youth detention, out of home care, childcare, and coaching and tuition services, among others.77 It recommended compliance with these requirements be overseen and enforced by an independent body.78

New South Wales, Victoria and South Australia have implemented legislated Child Safe Standards, although there is some variation in the approach and model adopted by different jurisdictions.79 At the time of writing, Western Australia and the Australian Capital Territory were considering legislated Child Safe Standards.80 Different governments (and departments) in Queensland, the Northern Territory and the Australian Capital Territory have ‘committed’ to the National Principles, but have not, at the time of writing, legislated compliance with them.81

Because it is one of the more advanced legislated models (having been introduced in 2016), we sought evidence from Victoria about its approach to legislating, monitoring and enforcing Child Safe Standards. The implementation of Victoria’s Child Safe Standards was also reviewed in 2019. This information is reflected in the following box.

Victoria’s implementation of legislated Child Safe Standards

Victoria has had legislated mandatory Child Safe Standards since 2016, adopting a staged approach to implementation. Some organisations were required to comply from January 2016 and a broader range of organisations from January 2017.82 The Commission for Children and Young People in Victoria assumed its formal functions in relation to the Child Safe Standards in January 2017.83

Principal Commissioner, Commission for Children and Young People (Victoria), Liana Buchanan, shared with us her view of the importance of Victoria’s Child Safe Standards:

As a mandatory set of standards with a very broad reach, the Child Safe Standards are very important in terms of changing the way children are seen in organisations, changing awareness in organisations about children and child safety issues and about supporting organisations to have all of the systems and processes necessary to keep children safe.84

Emily Sanders, Director, Regulation, Victorian Commission for Children and Young People told us: ‘The focus on prevention of abuse and the capability building elements of the Child Safe Standards are key elements’.85

The operation of Victoria’s Child Safe Standards was reviewed in 2018 by Victoria’s then Department of Health and Human Services. This review found strong support for the Child Safe Standards among regulated organisations but described implementation as resource intensive and difficult.86 The review also found strong support for harmonisation with the National Principles and that oversight and compliance functions needed to be clarified and strengthened.87 This review informed several amendments and refinements to Victoria’s model.

Since 1 July 2022, Victoria’s Child Safe Standards largely mirror the 10 National Principles, with an additional Standard that requires ‘[o]rganisations establish a culturally safe environment in which diverse and unique identities and experiences of Aboriginal children and young people are respected and valued’.88 A detailed guide supports Victoria’s 11 Child Safe Standards, which includes the minimum requirements that an organisation must meet (which reflect the key action areas of the National Principles). The guide also includes ‘compliance indicators’ (what the Commission will look for to assess compliance), as well as advice and information on how to be compliant and create a child safe organisation.89

When asked to reflect on the successful features of Victoria’s Child Safe Standards, Ms Buchanan described how the Commission’s functions supported their implementation. Ms Buchanan told us that most organisations ‘demonstrate goodwill and preparedness to implement the Child Safe Standards’ but benefit from support and guidance to do so.90 She explained the Commission’s functions supported it to do a range of activities, including:

• developing educational guides and tools
• running information sessions
• supporting a Child Safe Standards Community of Practice
• engaging with peak bodies and sector leads
• providing targeted support and guidance to organisations to support their compliance.91

Ms Buchanan told us of the value of having recourse to stronger compliance functions, when warranted. This includes the Commission for Children and Young People having powers to:

• issue notices to produce and notices to comply
• attend and inspect premises to enable the Commission to speak to staff and volunteers
• request further information to assess compliance.92

Ms Buchanan said these powers are important where organisations are uncooperative, repeatedly fail to comply or where significant risks to children have been identified. She added: ‘In many cases, the fact that organisations know we can resort to enforcement measures is sufficient to prompt action’.93

Since 1 January 2023, the Commission has had additional enforcement powers to:

• enter premises with consent (without notice)
• enter with a warrant
• search premises
• seize information and documents.94

The Commission can also now:

• issue official warnings for non-compliance
• accept enforceable undertakings (legally enforceable agreements that describe what an organisation will do to comply)
• issue infringement notices
• seek a range of court orders, including injunctions and adverse publicity orders (in which an organisation is required to publicise their failure to comply with the Standards and the consequences of those failures).95

Ms Buchanan foreshadowed these amendments to us when she gave evidence in May 2022 and welcomed them, observing the changes would help to ‘address some of the gaps needed in instances where we are unable to support organisations to comply, and need further powers to ensure compliance, especially where children are at risk’.96 From 1 January 2023, the Commission for Children and Young People shares responsibility with Victorian government departments, the Victorian Registration and Qualifications Authority and the Wage Inspectorate for promoting and supporting compliance with the Child Safe Standards.97

The Commission for Children and Young People has a graduated approach to enforcement, which it describes as follows (noting this pre-dates some of its newer enforcement powers):

• inform and educate (including general awareness raising and guidance materials)
• support to comply (including providing specific advice and guidance where non-compliance is identified)
• monitor compliance (including inspecting an organisation’s premises and documents, investigating non-compliance or conducting an own motion investigation, sharing information with other regulators)
• enforce the law (including issuing a ‘Notice to Comply’ with the Standards to compel action, applying to court for a declaration of non-compliance or naming organisations, where appropriate, when publishing information relating to the operation of the Standards).98

In 2021–22, the Commission initiated action against 33 organisations for potential non-compliance with the Child Safe Standards.99 Since commencing the Child Safe Standards, non-compliance actions have been initiated against 250 organisations.100

Ms Buchanan also stated oversight of the Child Safe Standards has led to a ‘large improvement’ in the Commission’s understanding of the organisations and sectors at risk, which ‘has in turn informed the Victorian Government and others through formal submissions, inquiries and other information sharing processes’.101

We discuss Victoria’s implementation of its Reportable Conduct Scheme further in Section 3.3.

1. Tasmania’s implementation of legislated Child Safe Standards

In 2018, the Tasmanian Government accepted in principle the National Royal Commission recommendations related to Child Safe Standards. In doing so, the Tasmanian Government expressed support for the ‘aspirational principles as the architecture of the National Framework’ but noted jurisdictions may differ in their implementation approach due to their existing systems and that consistency would be achieved over time, where possible.102 As noted before, the Government endorsed the National Principles for Child Safe Organisations in February 2019.

In late 2020, the Tasmanian Government released a draft Child Safe Organisations Bill 2020 for consultation.103 Ginna Webster, Secretary, Department of Justice, explained the delay to us in her statement as follows:

By way of context it is important to note that some of the delays in relation to drafting the Child Safe Organisations Bill 2020 were due to urgent legislation required to manage the COVID-19 pandemic. This is not to say that the Bill was not a priority for Government however the capacity of the Office of Parliamentary Counsel (OPC) and the State Service in a state the size of Tasmania presents some limitations.104

Feedback from stakeholders through that consultation showed general support for implementing the National Royal Commission recommendations relating to regulating organisations that provide services to children, with an acknowledgment that some organisations (particularly those that are smaller or volunteer run) may need help and support to comply.105

However, the Tasmanian Government received critical feedback from stakeholders, including that:

• Tasmania’s proposed Child Safe Standards did not align adequately with the National Principles.
• The scope of the obligations (particularly which organisations would and would not be captured) was not clear.
• There was a lack of clarity around the role, powers and the designated body to undertake independent oversight.106

Secretary Webster gave her reflections on the feedback received:

The feedback received on the Child Safe Organisations Bill supported the acceleration of the project to include independent regulation of the Child Safe Standards and a reportable conduct scheme. Despite intentions to align the Bill with the Principles for Child Safe Organisations endorsed by First Ministers at the Council of Australian Governments, during the drafting of the Bill some drafting changes were made to accommodate the structure of the Bill. Many stakeholders provided feedback about the departure from the wording of the Principles.107

Secretary Webster told us in her 10 June 2022 statement that the lack of consistency with the National Principles would be ‘resolved in future drafts’.108

We consider it unfortunate the Tasmanian Government’s initial attempt to progress implementation of Child Safe Standards was hampered by significant deficiencies in the 2020 Bill, as this represented a substantial loss of time and wasted effort.

Consistent with the feedback provided to the Department of Justice in response to its 2020 Bill, several individuals and organisations voiced support for implementing legislated Child Safe Standards, overseen by a strong and effective independent regulator, in our consultations and public submissions.109 Tasmania’s Commissioner for Children and Young People, Leanne McLean, told us:

In my view, Tasmania can and should implement a best practice child safe system, including mandatory legislated child safe standards accompanied by a reportable conduct scheme with child-centred independent oversight consistent with the recommendations of the [National] Royal Commission.110

This ultimately occurred with the development and passage of the Child and Youth Safe Organisations Act, which introduced legislated Child and Youth Safe Standards and a reportable conduct scheme.

1. Reportable conduct schemes

The National Royal Commission described a reportable conduct scheme as ‘a legislated scheme that requires reporting, investigation and oversight of child protection-related concerns that arise in certain government and non-government institutions that provide services to, or engage with, children’.111

A reportable conduct scheme is intended to ensure complaints or allegations relating to the abuse or neglect of a child by institutions are managed robustly and transparently. The National Royal Commission described the key features of such a scheme as follows:

• the head of an institution must notify an oversight body of any reportable allegation, conduct or conviction involving its staff (we describe how this relates to sexual abuse below)112
• the institution is generally responsible for appropriately managing reportable conduct matters (for example, by assessing and managing risk and conducting investigations) unless the oversight body directs otherwise or conducts its own investigation113
• the oversight body monitors and scrutinises the institution’s handling and investigation of any allegation, complaint or notification114
• the oversight body can audit an institution’s policies and procedures to help them improve their systems and practices for responding to complaints or allegations.115

Reportable conduct schemes do not apply to children who have displayed harmful sexual behaviours.116

The National Royal Commission recommended that state and territory governments establish reportable conduct schemes.117 Four jurisdictions currently have a reportable conduct scheme: Victoria, New South Wales, Western Australia and the Australian Capital Territory.118

Conduct reportable under a reportable conduct scheme includes the abuse or neglect of a child, including sexual abuse (including sexual misconduct), physical abuse and psychological abuse.119 Importantly, sexual misconduct is intended to capture behaviour that may not meet the threshold of a sexual offence, including crossing professional boundaries, sexually explicit or other overtly sexual behaviour or grooming.120 This creates far greater opportunity to identify and address concerning behaviours at an early stage. It also overcomes some of the paralysis that can arise when organisations are confronted with conduct that is concerning but may not meet reporting thresholds to police or child protection, by giving a mandated lever for some action to be taken at an early stage.

Ms Fordyce felt that creating an environment for complaints and concerns to be acted upon at an early stage was important for minimising risks of abuse, noting at present, in Tasmania, organisations often only acted in response to child sexual abuse once a serious incident had occurred.121 Ms Fordyce added:

Low reporting thresholds are important in protecting children from child sexual abuse. If minor issues are identified, corrected and dealt with constantly and consistently, this deters perpetrators of child sexual abuse from committing child sexual abuse because they are aware that the system will be able to identify them.122

Stephen Kinmond, recently appointed as the New South Wales Children’s Guardian, reflected on his experience overseeing New South Wales’ Reportable Conduct Scheme in a former role as New South Wales Deputy Ombudsman (Human Services). Mr Kinmond also highlighted how a reportable conduct scheme could allow for earlier intervention in response to high-risk behaviours. He noted the importance of broad definitions of sexual misconduct, as these provide an opportunity for the organisation and oversight body to closely assess the risk posed by the person who is the subject of the allegation, recognising it can be difficult to initially determine the nature and extent of the conduct at the initial report.123 Broad definitions for sexual misconduct also reflect that substantiating criminal charges, particularly for complex conduct such as grooming, can be difficult. Mr Kinmond added:

I believe it is important to recognise that the threshold for taking action must be different to the threshold required to sustain a finding in a criminal matter. This need to proactively identify and respond to risk is vital to ensuring that we can take appropriate risk management action for the safety of children.124

As with the Child Safe Standards, we asked Victorian experts to describe the operation of its Reportable Conduct Scheme. This is described in the following box.

Overview of operation of Victoria’s Reportable Conduct Scheme

Victoria’s Reportable Conduct Scheme commenced in July 2017. Its scheme requires certain organisations to provide mandatory notifications relating to alleged child abuse and certain child-related misconduct to Victoria’s Commission for Children and Young People.125 A failure to do so without reasonable excuse is a criminal offence.126 Ms Sanders told us:

This means that, from the start of the investigative process to the outcome of the investigation, the CCYP [Commission for Children and Young People] is aware of the allegation and is able to independently and transparently scrutinise the organisation’s investigation into that allegation. The CCYP can also educate and guide the organisation.127

The Reportable Conduct Scheme applies to organisations with a high level of responsibility for children and is not as broad as the category of organisations captured under the Child Safe Standards. It includes schools, disability and mental health services, hospitals, out of home care, religious bodies, occasional care providers and other prescribed entities (that could be zoos, libraries, museums and so forth).128 In Victoria, the scheme was introduced in three tranches over 18 months, with different types of organisations captured by the scheme in each phase.

The Reportable Conduct Scheme in Victoria imposes obligations on the heads of relevant organisations to notify the Commission of a ‘reportable allegation’ within three business days of becoming aware of it.129 In addition to the requirements of the Child Safe Standards (described in Section 3.2.2) it also requires the head of an entity to have systems in place to prevent reportable conduct and ensure it is reported and investigated where it does occur.130 The ‘head’ of an organisation is defined in the Act to generally be the Secretary (where the entity is a department) or as otherwise prescribed in regulations, and in any other case the chief executive officer, the principal officer or otherwise a person nominated and approved by the Commission.131

‘Reportable conduct’ is defined broadly in Victoria to include:

• a sexual offence committed against, with or in the presence of a child (whether or not a criminal proceeding has been commenced or concluded)
• sexual misconduct committed against, with or in the presence of a child (defined as ‘behaviour, physical contact or speech or other communication of a sexual nature, inappropriate touching, grooming behaviour and voyeurism’)
• physical violence committed against, with or in the presence of a child
• any behaviour that causes significant emotional or psychological harm to a child
• significant neglect of a child.132

Under the scheme, allegations that may constitute criminal offences should also be reported to Victoria Police. A police investigation has priority, with any investigations by an organisation to be suspended or not started until police advise that it may proceed.133 Guidance material from the Commission states that criminal allegations should be ‘immediately reported’ to police, in addition to the Commission.134

As soon as possible and within 30 calendar days after becoming aware of the reportable allegation, the organisation must provide the Commission with:

• detailed information about the reportable allegation
• whether or not any disciplinary action is proposed and reasons why (or why not)
• any written submissions made to the head of the organisation that the relevant employee wished to have considered in determining disciplinary or other action.135

As soon as possible after completing the investigation, the head of the organisation must provide the Commission with a copy of the investigation findings and information about actions.136

Source: Commission for Children and Young People Victoria, Information Sheet 1 ‘About the Victorian Reportable Conduct’.

Failure to notify the Commission of the reportable allegation, or to keep the Commission updated on actions taken to investigate and respond within 30 calendar days, is an offence.137 The head of the entity must investigate the allegation (or engage another body, such as the Commission to investigate) and, as soon as possible after the investigation concludes, provide a copy and reasons for findings, details of disciplinary and other action to be taken and an explanation if no disciplinary or other action is proposed.138

The Commission can request information or documents relating to a reportable allegation or investigation at any time. The head of the entity must comply with the request.139 The Commission can visit an entity to inspect any document related to the reportable allegation or conduct an interview.140

The Commission also has own motion powers to investigate a reportable allegation where:

• it receives information about a reportable allegation and believes on reasonable grounds that reportable conduct may have been committed and considers it in the public interest to investigate the reportable allegation
• it is advised the organisation will not or cannot investigate the reportable allegation or engage an independent investigator
• it is concerned there has been inappropriate handling of (or response to) a reportable allegation and considers it in the public interest to investigate itself.141

Affected parties can seek internal review of some decisions the Commission makes. This includes decisions to issue a notice to produce regarding the Reportable Conduct Scheme or findings by the Commission in an own motion investigation, for example.142 Some internal review decisions can be further reviewed by the Victorian Civil and Administrative Tribunal.

The Commission for Children and Young People published Guidance for Organisations: Investigating a Reportable Conduct Allegation in June 2019. Key points from this guide include:

• Decision-makers in reportable conduct investigations must apply the ‘balance of probabilities’ standard of proof (whether more likely than not the reportable conduct happened). In so doing, the decision-maker must apply the ‘Briginshaw test’, which requires that the more serious the allegation and gravity of a substantiated finding, the more comfortably satisfied
  on the evidence they should be.143
• An independent investigator must be used, defined as an ‘independent body or person (who can come from within the organisation) with appropriate qualifications, training or experience to investigate reportable allegations’.144 The guide describes situations where an external investigator should be considered, including where the matter is complex or there is a conflict of interest.145
• An alleged victim and the subject of an allegation should be interviewed, unless there are good reasons not to (these should be documented). The guide includes the factors to consider when interviewing a child, including their age and developmental stage, whether they have been interviewed already and the nature of the allegations.146 It also states that ‘careful thought and planning’ is required to enable a child to describe their experience, where appropriate, ‘being mindful to avoid causing any further trauma to the child’.147 The Commission for Children and Young People has developed the Guide for including children and young people in reportable conduct investigations, alongside other resources (including mock interviews). These provide specific guidance on how to ensure interviews are trauma-informed, including for Aboriginal children and young people.148
• A worker or volunteer who is the subject of a reportable allegation is entitled to receive natural justice (often called procedural fairness). The guide identifies the factors that will facilitate such fairness (including the provision of a notice on the nature and scope of allegations, ability to have a support person present, have reasonable opportunity to respond and have this considered before any final decisions are made).149
• The importance of organisations managing risks to children while investigations are conducted, with regard to the nature and seriousness of the reportable allegation, the vulnerability of the children and the position and duties of the subject of the allegation (including whether they have unsupervised access to children).150

In addition to the powers above, the Commission has specific functions in administering the scheme. This broadly includes:

• educating and providing advice to organisations to support compliance
• overseeing the investigation of reportable allegations (and in some instances, investigating the allegations itself)
• monitoring compliance
• exchanging information with Victoria Police, other regulators and Working with Children Check Victoria (we discuss information sharing in the context of New South Wales’ Reportable Conduct Scheme below)
• reporting to the Minister and Parliament on trends.151

Ms Buchanan told us the Commission for Children and Young People works closely with many regulatory bodies and it has implemented formal memoranda of understanding with some of these bodies.152 Ms Buchanan said this enhances the safety and wellbeing of children by ensuring relevant information is shared, while also reducing duplication of effort in responding to matters.153

Ms Buchanan said the Commission shares information with co-regulators and other agencies to help them perform their role regulating organisations or individuals in relation to child safety.154 It can refer a substantiated allegation to the Working with Children Check Unit or a professional accreditation body (for example, Victorian Institute of Teaching or the Australian Health Practitioner Regulation Agency).155 It can also bring agencies together to share information about a matter and support each regulator to fulfil its roles and responsibilities in addressing child safety issues, while minimising duplication.156

Where Victoria Police investigates a matter that falls within the scope of the Reportable Conduct Scheme, the Commission can request information about the matter from Victoria Police and share it with a relevant organisation.157 Ms Buchanan said placing a police officer within the Commission during the first two years of operation of the Reportable Conduct Scheme helped the Commission to establish processes to effectively manage information and information requests between the two agencies. This resulted in an increase in intelligence about potential abuse being shared with Victoria Police to assist criminal investigations. The Commission now routinely shares with and requires considerable information from Victoria Police. Victoria Police also shares reportable conduct allegations with the Commission that may not have otherwise come to light.158

New South Wales was the first jurisdiction to establish a reportable conduct scheme. We asked Mr Kinmond to describe the features of the New South Wales model, including its lessons in implementation. Mr Kinmond described in detail the significance of a reportable conduct scheme in providing central oversight of high-risk individuals and strong collaboration with police and child protection agencies to actively manage the risks these individuals posed. We describe the New South Wales experience relating particularly to information-sharing in the following box.

Information sharing under the New South Wales Reportable Conduct Scheme

New South Wales implemented a reportable conduct scheme in 1999, originally sitting within the New South Wales Ombudsman before being administered by the Office of the Children’s Guardian from 1 March 2020.159 The regulator has responsibility for overseeing the handling of child abuse and neglect allegations against employees of more than 7,000 government and non-government agencies.160

Stephen Kinmond was appointed to lead the Employment-Related Child Protection Division within the New South Wales Ombudsman in 2010 and had responsibility for the Reportable Conduct Scheme. Mr Kinmond recognised the importance of an oversight body of this nature ‘value adding’ and being proactive in the management of risks to children.161 He stated that before he joined the Office of the Ombudsman, it had ‘reflected a more passive traditional oversight model’.162 He described the action he took:

[I] immediately went about establishing standard operating procedures with the police, getting access to the police system, getting access to the child protection system, ensuring that in fact we were proactive in our response.163

Increasing ‘in-house’ access to databases held by police and child protection enabled the Ombudsman to ‘obtain a holistic understanding of the prevailing risks in particular matters and to better inform [its] assessment of any action that may be required’ to supplement its own information gleaned through reportable conduct notifications.164 This provided a ‘helicopter view’ of critical information.165

Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (‘Children and Young Persons (Care and Protection) Act’) provides significant scope for the regulator of the Reportable Conduct Scheme, as well as other prescribed bodies, to proactively share risk-related information to promote the safety, welfare and wellbeing of children.166 Section 245C states:

1. A prescribed body (the provider) may provide information relating to the safety, welfare or well-being of a particular child or young person or class of children or young persons to another prescribed body (the recipient) if the provider reasonably believes that the provision of the information would assist the recipient:
   1. To make any decision, assessment or plan or to initiate or conduct any investigation, or to provide any service, relating to the safety, welfare or well-being of the child or young person or class of children or young persons …
   2. To manage any risk to the child or young person (or class of children or young persons) that might arise in the recipient’s capacity as an employer or designated agency.
2. Information may be provided under this section regardless of whether the provider has been requested to provide the information.167

Provisions under the Act also permit an agency to request information relating to the safety, welfare or wellbeing of children from another prescribed body and provide protection from liability to those who provide information under provisions set out in the Act.168 Prescribed bodies for the purposes of the Act include New South Wales Police, public service agencies or public authorities, government or registered non-government schools, TAFEs, public health organisations, private health facilities and persons or bodies prescribed in regulations.169

On a regulator’s approach to information sharing, Mr Kinmond said:

I took the view that an Ombudsman’s Office should err on the side of disclosure, given the importance of ensuring the Office of the Children’s Guardian was provided with relevant risk related information to carry out their functions. My approach was always to think about what the community’s views would be on a failure to act in a particular situation, including failing to provide information that indicated an individual may pose a risk to children. I find this to be a simple but helpful test.170

The provisions in the Children and Young Persons (Care and Protection) Act seek to overcome agency concerns about breaching individual privacy.171 Mr Kinmond said that a reportable conduct scheme regulator must take an active role to ensure relevant information is shared with appropriate agencies and acted on.172 This is best achieved through broad information sharing powers.173 He said the reportable conduct scheme regulator must also model proactive information exchange in its own practice to send a clear message to agencies and sectors that there is a ‘collective responsibility’ to share information to promote the safety, welfare and wellbeing of children.174

Mr Kinmond said the regulator of a reportable conduct scheme must assess the information it gathers and form a view about whether it can be exchanged with other prescribed bodies consistent with promoting the safety, welfare and wellbeing of a child or class of children.175 This requires an assessment of the nature and quality of the information and ensuring the exchange of information beyond what is permitted by legislation does not occur.176

Mr Kinmond provided us with a submission the NSW Ombudsman made to the National Royal Commission in 2016 that cited an example where a historical child sexual abuse case was reopened by police after the Ombudsman identified an individual having two different ‘unlinked’ names within the police database.177

Mr Kinmond told us of the importance of regulators and oversight bodies being proactive in the context of overseeing a reportable conduct scheme:

It’s not an acceptable situation to have an oversight body that understands that risks are in play in relation to matters that are reported to it and remains passive, and so, in that respect it’s perhaps different than other oversight arrangements because, if there is an unacceptable risk to children – or a child or children … the oversight body has to respond.178

Mr Kinmond stressed the importance of providing for capacity building for organisations through training, education and guidance, recognising that smaller agencies in particular often lacked the knowledge and experience to handle reportable allegations properly.179 Failures to build capacity could also undermine the level and quality of reporting to the regulator.180

We consider that many of the problems we observed in responses to allegations or complaints of child sexual abuse or sexual misconduct in our Inquiry could have been prevented through a reportable conduct scheme, underpinned by proactive information-sharing arrangements and a supportive approach to helping organisations to manage investigations effectively. This is particularly the case for conduct that may not meet the threshold for more serious interventions (for example, not meeting the threshold for police reporting).

We consider that, had Tasmania adopted a reportable conduct scheme earlier, a range of problems we describe throughout our report may have been prevented, including:

• failures to notify other agencies of complaints or concerns relating to child sexual abuse (such as police, professional regulators or the Registrar of the Registration to Work with Vulnerable People Scheme) and to share information appropriately to ensure risks to children are properly assessed and mitigated (refer to, for example, Volumes 3, 4, 5 and 6)
• failures to investigate complaints or concerns, or investigate them adequately, and in a trauma-sensitive way (particularly in adopting best practice approaches to interviewing children and young people) (refer to, for example, Volumes 3, 4, 5, 6 and Chapter 20 in Volume 8)
• a tendency to prioritise the perceived rights and interests of the person accused of the conduct and the reputation of the organisation ahead of the safety of children by failing to ensure investigations were transparent, trauma-informed, appropriately included the accounts and perspectives of affected children and young people, and ensured risks associated with particular individuals were appropriately managed (refer to, for example, Volumes 3, 4, 5, 6 and Chapter 20 in Volume 8).

As noted, the Tasmanian Government released a consultation draft of the Child Safe Organisations Bill in 2020. This Bill did not provide for a reportable conduct scheme, as this was proposed to occur after the National Principles for Child Safe Organisations had been legislated.181 As we noted earlier, Secretary Webster told us feedback on the draft Bill showed support for a reportable conduct scheme.182 In her submission to us, Commissioner McLean outlined her ‘strong view’ that Tasmania should have both Child Safe Standards and a reportable conduct scheme.183

We agree and consider the value of a reportable conduct scheme lies in addressing a significant gap in responding to institutional responses to child sexual abuse and sexual misconduct. We note the child protection system is primarily focused on the care and protection of individual children and responding to risks of harm within the familial setting.

As we discuss in the next section, the Tasmanian Government has implemented a reportable conduct scheme in its Child and Youth Safe Organisations Act, which is due to commence in 2024. Secretary Webster told us:

Once established, the Reportable Conduct Scheme … will be a central repository for reportable conduct and the investigation outcomes related to child sexual abuse in organisations, government and nongovernment. The Reportable Conduct Scheme will have an important role in data collection and monitoring the incidence of child sexual abuse.184

1. Child and Youth Safe Organisations Act 2023

In September 2022, the Government released a revised draft Child and Youth Safe Organisations Bill for public consultation. This consultation included an invitation for the views of children and young people, who could participate in a short survey about their ideas. Public consultation closed on 1 October 2022.185 The revised Bill introduced a more comprehensive child safe organisation framework than the 2020 Bill. It was introduced into the Tasmanian Parliament on 22 November 2022.186 The Child and Youth Safe Organisations Act was passed by the Tasmanian Parliament in May 2023 and commenced on 1 July 2023 (with some legislative obligations commencing in a phased manner in 2024).187

We summarise the key features of the Act in the following section.

1. Child and Youth Safe Standards and Universal Principle

As previously outlined, the Child and Youth Safe Organisations Act introduces Child and Youth Safe Standards that mirror the National Principles certain organisations must comply with, as part of the broader Child and Youth Safe Organisations Framework. Organisations must also comply with an embedded Universal Principle that requires a regulated entity to ‘ensure that the right to cultural safety of children who identify as Aboriginal or Torres Strait Islander is respected’.188 The Universal Principle has the same status as the Child and Youth Safe Standards, with the Independent Regulator’s powers (including enforcement powers) identical to those of the Standards.189 As we noted earlier, our references to Child and Youth Safe Standards should be read as inclusive of the Universal Principle.

A range of organisations must comply, including health, educational, accommodation providers, youth justice workers, recreational clubs and businesses that provide services to children.190 The Act stipulates that local councils, legal practitioners providing services to children, government agencies and the Parliament of Tasmania must also comply.191

The Independent Regulator is given broad functions regarding the Child and Youth Safe Standards that relate to education and advice on compliance, oversight and enforcement, information sharing, data collection and analysis, and public reporting.192 The Independent Regulator also has enforcement powers that extend to:

• requesting documents and information
• inspecting premises
• sharing information
• issuing relevant notices to an organisation (to produce a document or to comply with requirements the Child and Youth Safe Standards impose).193

Penalties apply to non-compliance with the legislation.194

1. Reportable Conduct Scheme

The Child and Youth Safe Organisations Act also introduces a reportable conduct scheme, which requires the head of a relevant entity to notify the Independent Regulator within three business days of becoming aware of reportable conduct. Most relevantly for our purposes, reportable conduct includes a range of sexual offences as well as sexual misconduct, which is defined to include inappropriate behaviour, physical contact and voyeurism when performed in a sexual manner or with a sexual intention.195 The head

of an entity is required, as soon as practicable and no later than 30 days after becoming aware of the reportable allegation, to notify the Independent Regulator of information received, action taken, and any submissions received by parties related to the matter.196

The Reportable Conduct Scheme applies to a slightly narrower cohort of organisations than the proposed Child and Youth Safe Standards (which is consistent with the recommendations of the National Royal Commission) and includes all government agencies, out of home care and accommodation providers, youth justice, health services and schools, among others.197

The Independent Regulator has a range of functions to administer and oversee the scheme, including educating and advising entities, monitoring investigations of reportable conduct (and conducting own motion investigations), monitoring compliance with the scheme, facilitating appropriate information sharing, collecting and analysing data, and public reporting.198

As with the Child and Youth Safe Standards, the Independent Regulator has a range of powers, including to request documents or information, enter premises, conduct interviews and share information.199

1. Independent Regulator and Deputy Independent Regulator

The Child and Youth Safe Organisations Act provides for the Governor to appoint an Independent Regulator and Deputy Independent Regulator (one of whom must be known to be Aboriginal or Torres Strait Islander).200 The Act makes it explicit the Independent Regulator and Deputy Independent Regulator are ‘not subject to the direction or control of the Minister’ and ‘must act independently, impartially and in the public interest’ when exercising their functions or powers.201

The Act also makes provision for ‘entity regulators’, which the Independent Regulator is to determine.202 Entity regulators can exercise certain functions the Independent Regulator delegates, including powers to inspect premises, interview persons or give a notice to produce a document.203

At the time of writing, it is unclear how the Independent Regulator, Deputy Independent Regulator and the Child and Youth Safe Organisations Framework, including the Reportable Conduct Scheme, will be operationalised. The Tasmanian Government has stated its intention to establish a new entity led by the Independent Regulator ‘focused on the institutional safety and wellbeing of children and young people’ to administer the Child and Youth Safe Organisations Framework.204 Recruitment for the role of the Independent Regulator is underway at the time of writing, with appointment of the Deputy Independent Regulator to follow.205

We consider the Tasmanian Government should establish a new and appropriately resourced Commission for Children and Young People (discussed further in Section 5.2), which should also administer the Child and Youth Safe Standards and the Reportable Conduct Scheme.

1. Information-sharing provisions

The Child and Youth Safe Organisations Act includes several provisions designed to facilitate appropriate information sharing between agencies. These provisions are expansively drafted to empower the Independent Regulator to obtain, record, disclose and otherwise use information for a broad range of purposes, including for:

• promoting and protecting the safety of children
• supporting investigations by law enforcement
• employment and disciplinary processes.206

It also provides that a range of persons and bodies may disclose information or documents relating to compliance with the Child and Youth Safe Standards or matters relating to reportable conduct between different organisations. This includes:

• heads of organisations
• entity regulators
• police (including police in other jurisdictions)
• the Registrar of the Registration to Work with Vulnerable People Scheme
• ministers
• an independent investigator (where necessary)
• the Chief Commissioner of the Integrity Commission
• others, including persons or bodies that can be prescribed.207

We note the Ombudsman is not listed as a body that can take part in information sharing. We are unclear on the reasons for this. We consider it important and necessary that the Ombudsman be expressly empowered to share information with the Independent Regulator, alongside those listed, given its complaints-handling and oversight functions.

The State has agreed with this position and committed to prescribing the Ombudsman within the regulations to bring it within information-sharing provisions under the Act, and to confer investigative functions on the Ombudsman as an entity regulator under the Reportable Conduct Scheme.208

Recommendation 18.3

The Tasmanian Government should ensure the Ombudsman is prescribed as an entity for the purposes of disclosure of information under section 40 of the Child and Youth Safe Organisations Act 2023.

1. Other matters

The Child and Youth Safe Organisations Act has a commencement date of 1 July 2023, with staggered commencement of the requirements in 2024.209 The first tranche of organisations will be required to comply with the Child and Youth Safe Standards (including government agencies such as schools, health services, out of home care and youth justice) from 1 January 2024. A second tranche will be required to comply from 1 July 2024 (mostly private and commercial business, such as party services or talent and beauty competitions).210 A similar logic applies to phasing the implementation of the Reportable Conduct Scheme, recognising some variation in the organisations subject to the scheme.211

A table outlining the organisations regulated by the Child and Youth Safe Standards and the Reportable Conduct Scheme and relevant commencement dates for compliance can be found at Table 18.1.

Table 18.1: Organisations regulated under the Child and Youth Safe Organisations Act 2023212

Type of organisation	Child and Youth Safe Standards	Reportable Conduct Scheme	Date must start to comply
Accommodation and residential services for children, including housing services and overnight camps	Yes	Yes	1 January 2024
Activities or services of any kind, under the auspices of a particular religious denomination or faith through which adults have contact with children	Yes	Yes	1 January 2024
Child care and commercial baby sitting services	Yes	Yes	1 January 2024
Child protection services and out-of-home care, including contact services	Yes	Yes	1 January 2024
Health services for children, including organisations that provide counselling services*	Yes	Yes	1 January 2024
An organisation that provides early intervention or disability support services	Yes	Yes	1 January 2024
Justice and detention services for children*	Yes	Yes	1 January 2024
Education services for children	Yes	Yes	1 January 2024
Tasmanian Government and Local Government	Yes	Yes	1 January 2024
Tasmanian Parliament	Yes	Yes	1 January 2024
Government House	Yes	Yes	1 January 2024
Neighbourhood Houses	Yes		1 July 2024
A club, association or cadet organisation that has a significant membership of, or involvement by, children	Yes	Yes	1 July 2024
An entity that provides a coaching or tuition service to children	Yes	Yes	1 July 2024
An entity that provides commercial services to children	Yes		1 July 2024
A transport service specifically for children	Yes		1 July 2024

Source: Department of Justice, ‘Child and Youth Safe Organisations Framework’.

The Act also provides for a review of the first three years of its operation, with a report on the review outcomes to be tabled in Parliament.213

1. Stakeholder feedback

As foreshadowed, the Department of Justice released a consultation draft of the Child and Youth Safe Organisations Bill in September 2022. The Department of Justice published 11 submissions from stakeholders in response to the consultation draft, all of which reflected broad support for the objectives, aims and provisions of the Bill.214 Some of the key themes emerging from the submissions included:

• recommendations that the Tasmanian Commissioner for Children and Young People assumes the functions of the Independent Regulator for the Child and Youth Safe Standards and Reportable Conduct Scheme.215 The importance of ensuring the Independent Regulator was appropriately resourced was also emphasised216
• support for explicit consideration of cultural safety for Aboriginal children but recommending this align to the approach adopted in Victoria by introducing an additional Standard (rather than a Universal Principle)217
• some support for expanding the scope of the Reportable Conduct Scheme to capture all organisations that would be bound by the Child and Youth Safe Standards (acknowledging this goes beyond what the National Royal Commission recommended).218

Stakeholders who provided feedback on the consultation draft also made a range of technical and drafting suggestions.

The CREATE Foundation, the national consumer body for children and young people with an out of home care experience, also consulted a group of young people in September 2022 on the draft Bill. The feedback from this group was broadly positive. They suggested the Child and Youth Safe Standards should be accessible and understood by young people.219

As part of its consultation process, the Department of Justice established a range of advisory panels to support the implementation of the new requirements, including a:

• Lived Experience Advisory Panel—with members who have lived experience of child sexual abuse in institutional settings or are family members or friends who are victim-survivor advocates.
• Sector Implementation Advisory Panel—which brings together representatives from sectors likely to be affected by the reforms, including a range of services and organisations, businesses, clubs, associations, local government and private organisations (such as non-government schools).
• Interdepartmental Implementation Advisory Panel—chaired by the Department of Justice with representatives from the Department for Education, Children and Young People, the Department of Health, the Department of State Growth, the Department of Police, Fire and Emergency Management, the Department of Natural Resources and Environment Tasmania and the Department of Premier and Cabinet.220

1. Supporting the implementation of Tasmania’s child safe regulatory framework

We welcome the Tasmanian Government’s introduction of the Child and Youth Safe Organisations Act and consider it has appropriately responded to stakeholder feedback by:

• aligning with the National Principles for Child Safe Organisations
• reflecting the need for all organisations to take active steps to ensure they feel safe and welcoming for Aboriginal children
• capturing a wide range of organisations that must manage the most acute risks of harms to children in both the Child and Youth Safe Standards and Reportable Conduct Scheme
• facilitating and explicitly enabling robust information sharing between key agencies that prioritises the safety of children and young people
• embedding the independence of the Independent Regulator and Deputy Independent Regulator
• providing for a review of the operation of the legislation after three years.

We also welcome the adoption of broad definitions of reportable conduct. However, we note these rely on staff and volunteers to be sufficiently skilled to identify reportable conduct (for example, inappropriate boundary violations or breaches).

We are particularly pleased Tasmania Police will become a regulated entity for the Child and Youth Safe Standards and Reportable Conduct Scheme. We consider this appropriate, as police occupy unique positions of trust within the community and can wield significant power and authority over children and young people.

We consider there has been a significant delay in implementing the National Royal Commission recommendations as they relate to the Child and Youth Safe Standards and the Reportable Conduct Scheme. The Child Safe Standards in the 2020 draft of the Bill were not fit for purpose and had to be abandoned, while a reportable conduct scheme was only proposed in the draft Bill of 2022. The unfortunate effect of these delays is the opportunity to reduce any risks that children and young people may be subject to was missed. Valuable time was lost to start the necessary consultation, capacity building and preparation within regulated organisations needed to ensure the success
of their implementation.

Given the broad alignment with the key features of interstate models, and the extensive delays to date, we do not propose revisiting the substance of the Act, beyond our recommendation regarding the inclusion of the Ombudsman as an information-sharing entity (outlined in Section 4.4). In the interests of realising the benefits of these regulatory schemes as soon as possible, we encourage the Tasmanian Government to be considered and thoughtful with its implementation in order to maximise the success and impact of the regulatory schemes. We also recommend the issues we would like considered in the statutory review of the operation of the Act.

Other jurisdictions, such as New South Wales and Victoria, have substantially progressed implementation of these schemes and can offer valuable insight to guide Tasmanian implementation. It was clear from the evidence from these jurisdictions that close collaboration with other agencies with relevant information and responsibilities (such as police), including access to their information holdings, was an important enabler for effective information sharing. Tasmania can now leverage resources and guidance materials that have been developed at the national level to support organisations and regulators alike. These will greatly assist during the implementation process and avoid the need for Tasmania to ‘reinvent the wheel’.

Recommendation 18.4

The Tasmanian Government, in implementing the Child and Youth Safe Organisations Act 2023, should ensure:

1. the functions of the Independent Regulator and Deputy Independent Regulator under the Act are embedded within the new Commission for Children and Young People (Recommendation 18.6)
2. the Commission is sufficiently resourced to enable it to effectively perform these regulatory functions
3. the Commission has access to government data systems such as those held by Tasmania Police, Child Safety Services and the Registrar of the Registration to Work with Vulnerable People Scheme to enable systematic and proactive monitoring and that those agencies have access to the Commission’s data, where appropriate.

We note that section 64 of the Child and Youth Safe Organisations Act allows the Minister to initiate a review of the Act covering the three years since the Act started and to ensure a report of the review outcomes is tabled in Parliament within four years of commencement. We welcome this provision but offer recommendations in the next section regarding considerations we consider should guide this review, which we consider should be undertaken by an independent entity.

Recommendation 18.5

The Tasmanian Government should ensure its independent three-year review of the Child and Youth Safe Organisations Act 2023 has a particular focus on:

1. whether the Independent Regulator is sufficiently resourced and empowered to perform its functions effectively, and new or additional resourcing, functions and powers are necessary to support compliance
2. how effectively the Independent Regulator is working with other agencies, including the Ombudsman or other oversight bodies, Registrar of the Registration to Work with Vulnerable People Scheme, Tasmania Police, professional regulatory bodies and other peak bodies, to support compliance, share information and manage active risks to children and young people
3. how organisations captured by the Child and Youth Safe Standards and the Reportable Conduct Scheme have experienced the new regulatory requirements, and in particular whether they have felt sufficiently supported to comply
4. analysing data emerging from the operation of the schemes, particularly as they relate to complaints and notifications and trends within and across sectors
5. whether the Universal Principle requiring organisations to uphold cultural safety is achieving its intended objective, and whether it should become an additional Child and Youth Safe Standard, mirroring the approach in Victoria
6. whether any further legislative changes are required to ensure appropriate information sharing between the Independent Regulator and other agencies.

1. The appointment of the Independent Regulator

The Child and Youth Safe Organisations Act does not specify the body that will assume the functions of the designated Independent Regulator and Deputy Independent Regulator. Secretary Webster told us:

‘the establishment of an independent statutory oversight body will require the analysis of current legislation in Tasmania to identify the best placement and analysis around what existing functions of current statutory officers may need to be reviewed’.221

She noted Tasmania’s relatively small size will need to be considered when examining how other jurisdictions have approached independent regulation.222

The Child and Youth Safe Organisations Project Plan states the Tasmanian Government is committed to establishing a ‘dedicated independent oversight body’ to oversee the Child and Youth Safe Standards and the Reportable Conduct Scheme.223

As noted in Section 4.3, the Government has stated its intention to establish a new entity led by the Independent Regulator to administer the Child and Youth Safe Organisations Framework.224 Recruitment for the role of the Independent Regulator is underway at the time of writing, with appointment of the Deputy Independent Regulator to follow.225

The National Royal Commission contemplated that existing children’s commissioners and guardians could assume responsibilities for Child Safe Standards and Reportable Conduct Schemes.226 We agree these responsibilities should be assumed by an oversight body focused exclusively on children and young people. We consider the person or body appointed as Independent Regulator should:

• be independent of government
• have specialist knowledge of children
• be accessible to children and their parents/carers, as they may wish to make a reportable allegation
• have a child-centred focus and processes
• have appropriate regulatory skills, which could be built over time.

In a small jurisdiction such as Tasmania, it is also important the appointment of the Independent Regulator avoid duplication of work with existing roles and entities.

As described earlier, in Victoria, the Commission for Children and Young People administers its Child Safe Standards and Reportable Conduct Scheme, which also performs other important functions. As discussed in Chapter 9, these functions include:

• conducting inquiries into the safety and wellbeing of an individual vulnerable child or group of vulnerable children227
• undertaking systemic inquiries into the provision of services to vulnerable children228
• monitoring serious incidents in the out of home care and youth justice systems229
• administering an independent visitors scheme for children in youth justice centres.230

As outlined in Sections 3.2 and 3.3, we heard evidence from Ms Buchanan and Ms Sanders, about the Commission for Children and Young People Victoria.231 We were impressed at the considerable knowledge and expertise the Victorian Commission for Children and Young People has built as a regulator of Child Safe Standards and Reportable Conduct Scheme since 2017.

Ms Buchanan believed there was benefit in the Commission for Children and Young People holding the role as regulator, as it is a body with ‘specialised knowledge and understanding of children, children’s development and child sexual abuse’, noting that this knowledge and expertise continues to grow.232 Ms Buchanan said:

So, one of the really important aspects of performing an oversight function here is, [number one], you have to be an organisation that has and continues to develop a very good understanding of children, of risks to children, of the patterns of child abuse and harm to children and about what organisations need to have in place to prevent and appropriately respond to child abuse, so that knowledge, that expertise, that specialisation in children and harms to children is very, very important.233

Ms Sanders stated how Child Safe Standards and a reportable conduct scheme are complementary:

The Child Safe Standards are about systems, while the [Reportable Conduct Scheme] is about more specific and detailed management of investigations by organisations. They work together as part of the same overall child safety framework. We consider that these are two key aspects of the safeguarding system that seeks to prevent and respond to child sexual abuse.234

Ms Buchanan and Ms Sanders pointed to benefits in one regulator overseeing both the Child Safe Standards and the Reportable Conduct Scheme.235 These benefits are summarised as follows:

• The number and nature of reportable allegations received under the Reportable Conduct Scheme can offer intelligence as to the organisation’s level of compliance with Child Safe Standards (where the number or nature of these reports is inconsistent with expected trends).236
• An assessment of how well an organisation is implementing Child Safe Standards can guide how the regulator may wish to oversee the management of a reportable allegation. For example, if there are compliance concerns arising from the Child Safe Standards relating to an organisation or sector, this may encourage the regulator to be more proactive in working with the organisation in its investigation into reportable conduct.237
• There are no information barriers to overcome as the information held about both the Child Safe Standards and Reportable Conduct Scheme are held by the one regulator.238 This means the Commission’s internal teams can use information gleaned in regulating one scheme to inform its approach or action in relation to the other.239

Commissioner McLean supported Tasmania’s regulator overseeing both schemes, as occurs in Victoria.240 She noted:

I believe the Victorian child safe model provides a particularly useful example of how we could take the steps needed to further protect the safety and wellbeing of children and young people in Tasmanian institutional contexts.241

As outlined earlier, in New South Wales, Child Safe Standards and the Reportable Conduct Scheme are administered by the Office of the Children’s Guardian.242 The New South Wales Ombudsman was initially responsible for the Reportable Conduct Scheme, however this responsibility was transferred to the Office of the Children’s Guardian in March 2020.243

We are pleased to see the Child and Youth Safe Organisations Act proposes the same entity regulates the Child and Youth Safe Standards and the Reportable Conduct Scheme.

With its specialist knowledge of matters relating to children and its child-centred processes, we consider our proposed new Commission for Children and Young People (discussed in Section 5.2) to be the logical choice for the functions of the Independent Regulator. This organisation, as the successor to the current Commissioner for Children and Young People, will have the benefit of being known to children and families in Tasmania as an organisation that can help with concerns relating to children and young people. It will also ensure there is one oversight body in Tasmania with a focus on the safety and wellbeing of children and young people. We consider this recommendation takes account of Tasmania’s relatively small size and the need for regulation to be effective and efficient.

While we acknowledge it will take some time to fully establish the new Commission for Children and Young People, the implementation of the Child and Youth Safe Standards and Reportable Conduct Scheme should progress with some urgency.

1. Oversight and safeguards supporting a child safe system

A healthy and robust system of oversight is a critical pillar to improving children’s safety in Tasmanian organisations. This is because well-regulated organisations are more likely to have the features of child safe organisations—including clear policies and procedures, healthy and protective work cultures, skilled and motivated staff and a culture of collaboration, reflection and continuous improvement. Organisations that tolerate poor practice, fail to properly address misconduct, and lack transparency and accountability are more likely to have heightened risks of abuse of children. In this section, we outline our recommendation to strengthen the oversight and regulation of child safety in Tasmania by establishing a new Commission for Children and Young People, which expands the current functions of the Commissioner for Children and Young People.

1. A confused and complex oversight system

In Chapter 2, we outline the current child sexual abuse system and identify that Tasmania has a range of oversight and integrity bodies (including professional regulators) that have some responsibility relating to child safety. In particular, the current oversight and integrity system in Tasmania is complex and confusing. The Ombudsman, Integrity Commission and the Commissioner for Children and Young People have certain highly specific (and often narrow) functions that relate to managing child safety.

Commissioner McLean acknowledged that Tasmania’s oversight system lacks coordination, stating:

In Tasmania we currently have a disconnected patchwork of systems and processes which do not provide an integrated and systematic approach to keeping children safe from abuse in institutional settings. The flow-on effects of the current system are that navigation by the public and agencies is difficult, there is limited coordination or communication between regulatory agencies, there is no central body with responsibility for systemic oversight …244

During our hearings, we convened a panel comprising the Chief Executive Officer, Integrity Commission, Michael Easton, the Ombudsman, Richard Connock, and Commissioner McLean to explain how their respective bodies work together in receiving and responding to complaints and concerns relating to child safety. Their evidence revealed what appeared to us to be a complex and confused integrity and oversight model in Tasmania, including:

• The Ombudsman’s powers in relation to publicly funded private entities ‘depends on the relationship between the private entity and the government’—which may create a lack of clarity for some out of home care providers, depending on their status.245
• The decision to initiate (or not initiate) disciplinary processes are administrative decisions but are not, in most cases, subject to the Ombudsman’s jurisdiction.246 We note the Integrity Commission has powers relating to misconduct by public officers.247
• The Commissioner for Children and Young People has individual advocacy functions for children and young people detained under the Youth Justice Act 1997, but no individual advocacy functions for children and young people in out of home care.248 This means they cannot advocate on behalf of an individual child in the out of home care system or investigate a specific organisation providing care services, for example.249 We discuss problems with these lack of powers in Chapter 9 relating to children in out of home care.
• The Commissioner for Children and Young People currently cannot, on their own motion, investigate decisions made about children and young people in detention. The Commissioner can only advocate on a child or young person’s behalf (for example, to facilitate a complaint to the Ombudsman about their treatment).250
• The Commissioner for Children and Young People, the Ombudsman, the Custodial Inspector and the Tasmanian National Preventive Mechanism appointed under the United Nations Optional Protocol to the Convention Against Torture (noting the latter three roles are held by Mr Connock) all have functions relating to youth detention. For the Commissioner, this extends to visiting and advocating for children and young people in detention. For the Ombudsman, this relates to investigating administrative decisions made by the Department overseeing youth detention. For the Custodial Inspector, this relates to inspecting detention facilities against established standards.251 The Integrity Commission may also be involved where there is misconduct by a staff member if, after considering whether the alleged misconduct could be a criminal offence and any necessary consultation with Tasmania Police, it considers that involvement to be appropriate regarding the principles set out in section 8(1)(l) of the Integrity Commission Act 2009 (‘Integrity Commission Act’).
• Referral pathways could sometimes lead to potentially unintended outcomes—for example, if a young person shared a concern with the Commissioner for Children and Young People about their treatment in detention and they were fearful of making a formal complaint because of concerns about reprisal, it is possible the Commissioner for Children and Young People could still make a complaint to the Integrity Commission regarding the misconduct concerns. The Integrity Commission could refer the complaint back to the Department responsible for youth justice to investigate.252 The young person in question would not necessarily know how their privately expressed concern was being managed.
• Only public officers or contractors who have entered into a contract with a public body can make public interest disclosures under the Public Interest Disclosures Act 2002, which limits who can receive the protections under the Act—for example, private individuals who may hold relevant information to the operation of a public body.253 The Integrity Commission does not have such limitations as to who can make a complaint to it.254

In unpacking the various roles and responsibilities, how they intersect (and how they do not) Counsel Assisting posed questions for Mr Connock, Mr Easton and Commissioner McLean:

Q [Counsel Assisting]: Would you each agree with me that this is a complex system … ?

A [Ms McLean]: Yes.

Q [Counsel Assisting]: Ombudsman?

A [Mr Connock]: Yes.

Q [Counsel Assisting]: Mr Easton?

A [Mr Easton]: Yes.

Q [Counsel Assisting]: Is it a difficult system for lay people to navigate, Commissioner?

A [Ms McLean]: In my experience, yes, people are often confused about my role.

Q [Counsel Assisting]: Mr Ombudsman?

A [Mr Connock]: It can be, yes.

Q [Counsel Assisting]: Mr Easton?

A [Mr Easton]: I think it’s difficult for people to understand the complexities, but they know—my sense is the layperson would know they could come to us about misconduct …255

All three oversight heads reported very few complaints (or public enquiries, in the case of the Commissioner for Children and Young People, who does not have a complaint handling function) relating to child sexual abuse.256 Mr Connock seemed unable to explain why complaints about child sexual abuse, or whistleblowing complaints relating to misconduct were so low, but was cautious to attribute it to barriers to reporting.257 In later hearings regarding Ashley Youth Detention Centre, Mr Connock reflected that there may be inadequate recognition of the protections for complaints-handling (including against reprisal), and that better publicising complaints avenues (and related protections) may help.258

Mr Easton was more willing to draw conclusions about barriers to reporting during our first week of hearings, stating:

… it’s our view based on our experience that people will not report things for fear of retribution or for fear of ostracisation as a whistleblower … But equally people won’t report things because they don’t understand the process within their agency of reporting things, or they won’t report things because they don’t think they have to.259

Mr Easton suggested there had been an uptick in such notifications since the establishment of our Commission of Inquiry.

Mr Kinmond, reflecting on his former role as New South Wales Deputy Ombudsman (Human Services) with responsibilities for a reportable conduct scheme, told us the absence of complaints should be a source of concern for a regulator:

Q [Counsel Assisting]: [W]e can take it as read that the society that we live in has a problem with child sexual abuse and so, if it’s not being reported, that itself indicates that something needs to happen?

A [Mr Kinmond]: Absolutely, or if it has been reported and things aren’t being handled appropriately, then the community would take a very dim view of an oversight body failing to act.260

We consider there is a lack of clarity about respective roles and responsibilities for oversight bodies as they relate to the safety of children in organisations. This makes it difficult for members of the public—including children, young people and their parents—to understand where they can make a complaint or seek help if they have concerns about their treatment within organisations. It renders the complaints process dependent on the judgment of the oversight bodies.

1. A new Commission for Children and Young People

As foreshadowed, we consider it is important that the prevention and management of child sexual abuse is overseen by a body with specialist skills in, and knowledge of, children’s rights and safety. We consider a new Commission for Children and Young People in Tasmania—with appropriate independence, powers and resourcing—would achieve a clearer and more cohesive system of oversight of children’s safety than exists currently.

It is not clear whether the Tasmanian Government has contemplated the establishment of a Commission for Children and Young People with expanded powers and responsibility for monitoring and oversight of the Child and Youth Safe Organisations Framework. While the Tasmanian Government has announced and made some progress towards appointing a new Independent Regulator, we consider these functions should ultimately be performed by the new Commissioner for Children and Young People.

The Commission for Children and Young People would subsume the current functions of the Commissioner for Children and Young People, which are to:

• advocate for all children and young people in Tasmania
• act as advocate for children and young people in youth detention
• research, investigate and influence policy development on matters relating to children and young people generally
• promote, monitor and review the wellbeing of children and young people generally
• promote and empower the participation of children and young people in the making of decisions, or the expressing of opinions on matters, that may affect their lives
• help ensure the State satisfies its national and international obligations regarding children and young people generally
• encourage and promote the establishment by organisations of appropriate and accessible mechanisms for the participation of children and young people in matters that may affect them
• perform any other prescribed functions.261

However, the Commission for Children and Young People would also have several new and expanded functions to support recommendations in other parts of our report. In Chapters 9 and 12, we examine the oversight of the out of home care and youth detention systems respectively. In those chapters, we discuss oversight functions exercised regarding individual children in out of home care and youth detention, and, more broadly, regarding the out of home care and youth detention systems.

Regarding individuals, we distinguish between advocacy on behalf of an individual child—including visiting a child in out of home care or youth detention, assisting them to raise any concerns about their experiences and seeking resolution of those concerns—and the formal investigation of a complaint made by a child or young person about out of home care or youth detention. We also consider systemic advocacy by oversight bodies—for example, making recommendations to government to improve the out of home care and youth detention systems.

In Chapters 9 and 12, we make several recommendations to improve individual advocacy for children in out of home care and youth detention, and to strengthen oversight of those systems. We recommend (among other matters):

• establishing a Commissioner for Aboriginal Children and Young People to advocate for Aboriginal children and young people in out of home care and youth detention, and more broadly (Recommendation 9.14)
• establishing an independent community visitor scheme for children in out of home care, youth detention and other residential youth justice facilities (Recommendations 9.34 and 12.36)
• establishing an independent Child Advocate to advocate on behalf of children and young people in out of home care and youth detention, with the power to make a complaint to the Ombudsman on behalf of a child or young person in out of home care or youth detention, and to apply to the Tasmanian Civil and Administrative Tribunal to review departmental decision-making in relation to a child in out of home care (Recommendations 9.33, 9.34 and 9.35)
• expanding external monitoring and oversight of the out of home care and youth justice systems (Recommendations 9.38 and 12.38).

In addition to the current functions of the Commissioner for Children and Young People set out here, the functions of the new Commission for Children and Young People would therefore include:

• educating relevant entities on the Child and Youth Safe standards, overseeing and enforcing compliance with those standards and related functions under the Child and Youth Safe Organisations Act, with reference to the Victorian child safe organisational framework and underlying legislative framework262
• administering, overseeing and monitoring the Reportable Conduct Scheme and related functions under the Child and Youth Safe Organisations Act with reference to the Victorian child safe organisational framework and underlying legislative framework263
• administering the independent community visitor scheme for children in out of home care, youth detention and other residential youth justice facilities (Recommendations 9.34 and 12.36)
• advocating for individual children in out of home care and youth detention, including supporting children to make complaints to the Ombudsman and (for children in out of home care) to apply for an independent review of departmental decision-making (Recommendations 9.35 and 9.36)
• monitoring the operation of the out of home care and youth justice systems and the provision of out of home care and youth justice services to children, by analysing data on those systems regularly provided by the Department for Education, Children and Young People and conducting own motion systemic inquiries into aspects of those systems and/or the services received by an individual child or group of children in those systems (Recommendations 9.38 and 12.38)
• recommending improvements to government for the out of home care and youth justice systems
• promoting the participation of children in the out of home care and youth justice systems in decision-making that affects their lives
• upholding and promoting the rights of children in the out of home care and youth justice systems.

The new Commission for Children and Young People should have all powers necessary for it to perform these functions.

We also make some specific recommendations relating to oversight bodies in particular organisational contexts across our report. This includes recommendations relating to strengthening and clarifying the role of the Teachers Registration Board (refer to Chapter 6).

In the next section, we outline the key statutory roles required to support the new Commission for Children and Young People, the need to clarify regulatory and advocacy roles, and several measures to ensure the independence of the new Commission from government.

1. Statutory roles

Legislation establishing the new Commission for Children and Young People should provide for the appointment by the Governor of three statutory roles, each for a term of five years:

• Commissioner for Children and Young People, who would also be the Independent Regulator of the Child and Youth Safe Standards and the Reportable Conduct Scheme
• Commissioner for Aboriginal Children and Young People (recommended in Chapter 9)
• Child Advocate (Deputy Commissioner) (recommended in Chapter 9).

As is currently the case for the Commissioner for Children and Young People, the legislation should permit the reappointment of a person appointed to any of the above roles for a further five-year term.264

We note there are different models in Australian jurisdictions for establishing a Commissioner for Aboriginal Children and Young People. For example, in Victoria, the Commission for Children and Young People Act 2012 (Vic) establishes a Commission for Children and Young People, which is constituted by the ‘Principal Commissioner’. The Principal Commissioner has all the functions and powers of the Commission.265 The Victorian Commissioner for Aboriginal Children and Young People is appointed by the Governor in Council as an ‘additional Commissioner’ under that Act but does not have separate statutory functions or powers.266 The Principal Commissioner may delegate relevant functions and powers to an additional Commissioner.267

In practice, the activities of the Victorian Commission for Children and Young People relating to Aboriginal children are led by the Commissioner for Aboriginal Children and Young People, however the Commissioners consult each other on ‘key policy or strategic issues’.268 Ms Buchanan and the former Commissioner for Aboriginal Children and Young People, Justin Mohamed, have previously expressed the view that the Victorian legislation should include clearly defined functions and powers for the Commissioner for Aboriginal Children and Young People.269

In South Australia, the Commissioner for Children and Young People and the Commissioner for Aboriginal Children and Young People are appointed under the Children and Young People (Oversight and Advocacy Bodies) Act 2016 (SA), and each has their own separate legislated functions and powers.270 These include the power to employ staff.271

A 2021 report of Western Australia’s parliamentary Joint Standing Committee on the Commissioner for Children and Young People noted the potential for duplication and overlap with the South Australian model.272 The committee did not recommend adopting the South Australian model, but suggested features of the South Australian legislation ‘may be worth exploring’ in the event of implementation of an Aboriginal children’s commissioner in Western Australia.273 We agree that the Commissioner for Children and Young People and the Commissioner for Aboriginal Children and Young People should work together and avoid duplication.

As outlined in Chapter 9, we recommend the role of Commissioner for Aboriginal Children and Young People be given its own, clearly defined statutory functions and powers to promote the safety and wellbeing of Aboriginal children. These functions and powers should be equivalent to those of the Commissioner for Children and Young People. However, we acknowledge it would not be practical to vest regulatory functions regarding the Child and Youth Safe Standards and the Reportable Conduct Scheme in two separate statutory roles. We therefore recommend the regulatory functions of the new Commission for Children and Young People be the responsibility of the Commissioner for Children and Young People, although they should consult with the Commissioner for Aboriginal Children and Young People where appropriate.

A further question arises about the relationship between the new Child Advocate and the Commissioner for Aboriginal Children and Young People. In Chapter 9, we recommend the new Commission for Children and Young People be given the function of advocating for individual children in out of home care and youth detention, primarily through an independent community visitor scheme (Recommendation 9.34). Under this scheme, independent community visitors would regularly visit children in out of home care, youth detention and other residential youth justice facilities, help them raise any concerns they may have with the Department for Education, Children and Young People, and seek to have those concerns resolved on the child’s behalf. We also recommend appointing at least one Aboriginal visitor, who would be available to visit Aboriginal children in out of home care and youth detention where possible.

In Chapter 9, we also recommend the individual advocacy function of the new Commission for Children and Young People be supported by a small number of legally trained child advocacy officers, who would be available to help children in out of home care or youth detention with more complex matters or concerns, such as applying for a review of a departmental decision about out of home care (Recommendation 9.36). The new Child Advocate would be responsible for appointing community visitors and child advocacy officers and administering these programs.

Given the substantial over-representation of Aboriginal children in out of home care and youth detention (refer to Chapters 9 and 12), it would be extremely beneficial for Aboriginal children in those systems to have access to a senior Aboriginal person to advocate on their behalf. The South Australian Guardian for Children and Young People, Penny Wright, told us that only an Aboriginal advocate can help foster strong connection to culture and identity for Aboriginal children in custody in a meaningful way.274 Accordingly, in addition to the appointment of Aboriginal visitors, we recommend the Commissioner for Aboriginal Children and Young People undertakes individual advocacy for Aboriginal children in out of home care or youth detention who request the Commissioner’s assistance.

Recommendation 18.6

1. The Tasmanian Government should establish a statutory Commission for Children and Young People, which includes the following roles, each appointed for a term of five years:
   1. a Commissioner for Children and Young People
   2. a Commissioner for Aboriginal Children and Young People
   3. a Child Advocate (Deputy Commissioner).
2. The Commission for Children and Young People should, in addition to the functions of the current Commissioner for Children and Young People under the Commissioner for Children and Young People Act 2016, have the following functions:
   1. educating relevant entities on the Child and Youth Safe Standards and overseeing and enforcing compliance with those standards as Independent Regulator under the Child and Youth Safe Organisations Act 2023
   2. administering the Reportable Conduct Scheme as Independent Regulator under the Child and Youth Safe Organisations Act 2023
   3. administering the independent community visitor scheme for children in out of home care, youth detention and other residential youth justice facilities (Recommendations 9.34 and 12.36)
   4. advocating for individual children in out of home care, youth detention and other residential youth justice facilities
   5. monitoring the operation of the out of home care and youth justice systems and the provision of out of home care and youth justice services to children (Recommendations 9.38 and 12.38)
   6. conducting inquiries into the out of home care and youth justice systems and the services provided to individual children in those systems, including own motion inquiries (Recommendations 9.38 and 12.38)
   7. making recommendations to government for out of home care and youth justice system improvements
   8. promoting the participation of children in out of home care and youth justice in decision making that affects their lives
   9. upholding and promoting the rights of children in the out of home care and youth justice systems.
3. The Commission for Children and Young People should have all necessary powers to perform its functions.

1. Separation of regulatory and advocacy functions

As outlined earlier, the new Commission would have individual advocacy functions for vulnerable children, and systemic monitoring and oversight functions for the out of home care and youth justice systems, as well as being responsible for administering the Child and Youth Safe Standards and the Reportable Conduct Scheme.

As discussed, the Victorian Commission for Children and Young People regulates organisations subject to the Child Safe Standards and Reportable Conduct Scheme, while also undertaking systemic monitoring and oversight functions in relation to the out of home care and youth justice systems. While it does not have an explicit individual advocacy function under its enabling legislation, the Victorian Commission for Children and Young People administers an independent community visitor program for children in youth justice centres.275 It also has an arrangement whereby children in youth justice centres can contact the Commission for Children and Young People directly via the Youth Justice telephone system to raise concerns.276 In practice, the Victorian Commission
for Children and Young People undertakes individual advocacy for children in custody.

In addition, in June 2022, the Victorian Government introduced a Bill to confer power on the Victorian Commission for Children and Young People to advocate for individual children in out of home care or in contact with the child protection system.277 This suggests that there is no inherent obstacle to a single body undertaking advocacy for individual children, performing systemic monitoring and oversight functions, and administering Child Safe Standards and a reportable conduct scheme.

Still, we acknowledge there may appear to be a tension or conflict between the performance of individual advocacy functions and regulatory functions by a single entity. For example, a situation may arise in which the new Commission for Children and Young People is undertaking advocacy on behalf of a child in out of home care who is the subject of a reportable allegation and, at the same time, monitoring the investigation of that allegation. Commissioner McLean indicated that if the Tasmanian Commissioner

for Children and Young People was tasked with the oversight and administration of Child Safe Standards and a reportable conduct scheme, there would be a need to consider ‘the appropriateness or otherwise of the Commissioner retaining an individual advocacy role’ for children in youth detention.278

However, we consider this tension could be overcome by ensuring:

• functions in respect of the Child and Youth Safe Standards and Reportable Conduct Scheme are performed by the Commissioner for Children and Young People, supported by a separate regulatory team within the Commission for Children and Young People
• individual advocacy functions for children in out of home care and youth detention are performed by the new Child Advocate and (where Aboriginal children are concerned) the Commissioner for Aboriginal Children and Young People, supported by independent community visitors and child advocacy officers.

1. The importance of independence

The United Nations’ Paris Principles for establishing national human rights organisations require such organisations to be independent of government.279 The Commissioner for Children and Young People Act 2016 (‘Commissioner for Children and Young People Act)’ requires the Commissioner for Children and Young People to act ‘independently, impartially and in the public interest’ when performing a function or exercising a power, ‘unless otherwise specified’.280

Ms Buchanan observed that independence was crucial for her role as Principal Commissioner of the Victorian Commission for Children and Young People:

I simply can’t imagine performing my regulatory functions to improve child safety without that independence. My role, both as an oversight body in terms of youth justice and out of home care, but also in terms of a regulator of organisations to improve child safety often requires that I am having to consider what powers I have at hand, I’m having to engage and persuade, but ultimately I’m having to make decisions about, if an organisation is not doing what I think needs to be done, what the law and certain standards require, then my independence means that I can make a clear objective decision about what powers and functions might need to be exercised: that’s what independence means to me.281

Ms Buchanan also referred to the inherent tension involved in maintaining ‘good, open but robust’ relationships with the bodies regulated by the Victorian Commission for Children and Young People, but taking action where a risk to a child or children requires it:

… I cannot imagine overlooking an issue for the sake of a relationship; I need to be able to kind of engage constructively, collaboratively, work with organisations and leaders of organisations, but that only works if there’s a mutual respect for our roles and if, to be frank, the organisation with which I’m working understands that at any point I may need to take some stronger and more formal action; that’s kind of the way that I work.

… all of our work really, whether it’s oversight work or our regulatory work, is risk-based, so we kind of assess how significant is the risk, what are the issues for either the individual child or children more broadly, and we make our decisions on what action is needed based very much on that.282

Similarly, Mr Kinmond told us:

And so, there is that aspect of being in no doubt that whilst on the one hand you seek to facilitate and work in a constructive relationship with bodies with a common aim of protecting children, your calling, your responsibility, is to act always in the public interest, and the moment you lose sight of that you probably should go and find employment elsewhere.283

We were impressed by the level of independence clearly shown in such comments.284

We also heard about the importance of adequate resourcing to support the independence of regulatory and oversight bodies. South Australian Guardian for Children and Young People, Penny Wright, told us the legislative independence of her roles as Guardian and Training Centre Visitor can be constrained if adequate resources are not provided to fulfil the statutory functions of those offices.285 Similarly, Mr Kinmond commented that without institutional independence, and sufficient powers and resourcing to enable an integrity body to carry out its statutory functions, its aims are likely to go largely unrealised.286

Kim Backhouse, Chief Executive Officer, Foster and Kinship Carers Association, observed the role of Tasmanian Commissioner for Children and Young People has been ‘a chequered portfolio’ in the past, as it has been held by individuals from interstate who have ‘clashed with the government’.287 The role has been held by 10 individuals (including Commissioner McLean) since it was first established in 2000.288

Andrea Sturges, Chief Executive Officer, Kennerley Children’s Homes, expressed the view that the Commissioner for Children and Young People ‘should not be a political appointment’.289 While we are aware some initial concerns were expressed at the time of Commissioner McLean’s appointment about the appropriateness of an individual moving from a political role to an independent statutory office, the Commissioner indicated she had not experienced political interference during her term.290

Former Commissioner for Children and Young People, Mark Morrissey, told us that in 2017 he was asked to ‘back off’ advocating for changes at Ashley Youth Detention Centre by a senior government politician, and to ‘cease writing’ to the then Minister for Child Protection by a senior member of the Minister’s staff.291 According to Mr Morrissey, this appeared to be a request to change his relationship with the Minister and Parliament, to instead direct correspondence through the Department.292

Mr Morrissey also referred to ‘several subtle factors’ that can bring pressure to bear on the independence of the role of Commissioner for Children and Young People.293 These include the Department delaying recruitment to staff vacancies and applying efficiency dividends, which Mr Morrissey described as ‘turn[ing] the resourcing tap down, by increments and delay’.294 He also observed that relying on the Department for human resources, information technology, finance and other corporate support can limit the efficacy of the role and may create ‘real or perceived conflicts of interest’, whereby the Commissioner for Children and Young People is required to hold to account the Department it relies on for operational support.295 The Integrity Commission agreed with this observation, telling us ‘[a]s a small agency, it is inevitable that we be reliant on administrative and technological support from another department, and we are not sufficiently resourced to operate otherwise’.296

Ms Buchanan highlighted the importance of operational independence, observing that:

I, as the Commissioner, need to be able to make decisions about the source of advice, make decisions about how I and we at the Commission approach our legislative functions. I need to make decisions, as I can, about who I employ, they need to be my employees, not employees of a department, all of those are very important aspects to my independence and my ability to perform my role.297

1. Transparency of statutory appointments

In Western Australia, the Governor appoints the Commissioner for Children and Young People on the recommendation of the Premier.298 Before making a recommendation for appointment, the Premier must:

• advertise throughout Australia for expressions of interest from people with professional qualifications and substantive experience in matters affecting children
• consult with the leader of any political party that has at least two members in either house of parliament.299

The Commissioner for Children and Young People Act 2006 (WA) also specifies that children and young people must be involved in the selection process.300 We understand this requirement could be met through having a children’s selection panel, as well as an adult selection panel, for example.

We note that the process for appointment of the Chief Commissioner of the Tasmanian Integrity Commission by the Governor requires the Attorney-General to consult first with the Joint Standing Committee on Integrity of the Tasmanian Parliament.301 This is a multi-party committee comprising three members of the Legislative Council and three members of the House of Assembly, required to be appointed at the commencement of the first session of each parliament.302

The Integrity Commission Act also provides for the appointment of a chief executive officer of the Integrity Commission by the Governor on the recommendation of the Premier, following consultation with the Joint Standing Committee on Integrity.303

We recommend further safeguards to the integrity of appointments to the new Commission for Children and Young People, as described below.

Recommendation 18.7

The Tasmanian Government should ensure the process for appointing future Commissioners and Deputy Commissioners for Children and Young People adopts the following:

1. future Commissioners and Deputy Commissioners be appointed following an externally advertised merit-based selection process to ensure they have relevant professional qualifications and substantive experience in matters affecting vulnerable children
2. the recruitment process for these roles include a non-partisan adult selection panel with at least one member external to the Tasmanian State Service, and a separate children’s selection panel
3. the adult and children’s selection panels for the role of Commissioner for Aboriginal Children and Young People have a majority of Aboriginal members
4. before making a recommendation to the Governor for an appointment to the Commission for Children and Young People, the Minister be required to consult with the leader of any political party with at least two members in Parliament.

1. Funding and employment of staff

According to the Paris Principles, a national human rights organisation must have adequate funding to enable it to have its own staff and premises, and not be ‘subject to financial control which might affect its independence’.304 It is essential that the new Commission for Children and Young People receives enough funding to enable it to perform its various functions.

The funding allocated to the Commissioner for Children and Young People for 2021–22 was $1,386,000.305 Commissioner McLean told us her budget flowed through the former Department of Communities, rather than being a separate appropriation.306 In contrast, the Ombudsman, Mr Connock, told us he had a separate appropriation for funding and was therefore in control of his own budget, which was ‘helpful’.307 The Office of the Ombudsman has a service-level agreement with the Department of Justice for the provision of human resources and information technology support.308

As outlined in Chapter 9, Commissioner McLean told us that resourcing constraints have limited her ability to fulfil her current functions.309 In particular, she told us in April 2022, the resourcing of her office seriously limited her ability to undertake ‘own motion’ investigations or inquiries.310 Despite this, in December 2022, Commissioner McLean announced she would undertake an own motion investigation into the allocation of child safety officers for children in out of home care in Tasmania, under the new out of home care case management model.311 Commissioner McLean told us that the decision to undertake an own motion investigation was ‘not made lightly’ as it diverted resources from and delayed other core reporting, research and advisory activities of her office.312

The Commissioner for Children and Young People Act provides that a person may be employed under the State Service Act 2000 (‘State Service Act’) ‘for the purpose of enabling the Commissioner to perform his or her functions’ under the Act.313 A person so employed may serve the Commissioner for Children and Young People in any capacity ‘in conjunction with State Service employment’.314 Commissioner McLean told us this ‘creates an inherent conflict’, as her staff are State Service employees employed to implement the Government’s policies and programs, while the Commissioner ‘sometimes communicates different policy views to those of the Government’.315 In April 2022, Commissioner McLean told us she was supported by nine staff with several new positions recently established but not yet filled.316

It is not clear that having staff who are State Service employees necessarily creates a conflict for a regulatory or oversight body. Staff of the Tasmanian Integrity Commission and Ombudsman are appointed in line with the State Service Act.317 Similarly, staff of the Victorian Commission for Children and Young People are employed under the Public Administration Act 2004 (Vic), while staff of the Queensland Family and Child Commission are employed under the Public Service Act 2000 (Qld).318

Ms Wright told us the funding for the South Australian Guardian for Children and Young People comes from the Department of Education, and her staff are Department of Education employees rather than employees of the Department of Child Protection.319 She described this as ‘a very effective arrangement’ as ‘a conflict of interest could well arise if the overseen body is determining the funding and employment arrangements of the oversight body’.320 Ms Wright indicated it was ‘not acceptable to have to rely on “goodwill” from the Departments or Ministers who are subject to … oversight’.321

In contrast, employees of the South Australian Commissioner for Children and Young People and Commissioner for Aboriginal Children and Young People are deemed not to be public service employees, other than for the purposes of the Public Sector (Honesty and Accountability) Act 1995 (SA).322

In our view, the new Commission for Children and Young People should be funded via separate appropriation, like the Ombudsman, rather than through the Department for Education, Children and Young People. The Commission for Children and Young People should have the power to control its own budget and hire its own staff. While we acknowledge Commissioner McLean’s concerns about the status of her staff as State Service employees, we do not consider this would have a material bearing on the independence of the new Commission for Children and Young People, if the other protections that we recommend in this chapter were implemented. If human resource and information technology support are needed, this should be achieved through a service agreement with a department the Commission does not have a regulatory relationship with.

Recommendation 18.8

The Tasmanian Government should ensure the Commission for Children and Young People is separately and directly funded, rather than through the Department for Education, Children and Young People. Any funding arrangements or conditions should be structured to ensure the Commission has power to control its budget and staffing.

1. Oversight of the new Commission for Children and Young People

In Western Australia, the work of the Commissioner for Children and Young People is monitored and examined by the Joint Standing Committee on the Commissioner for Children and Young People of the Western Australian Parliament, appointed under the Commissioner for Children and Young People Act 2006 (WA).323 This committee comprises two members appointed by the Legislative Assembly and two members appointed by the Legislative Council.324

The functions of this committee are to:

• monitor, review and report to parliament on the exercise of the functions of the Western Australian Commissioner for Children and Young People
• examine the reports of the Western Australian Commissioner for Children and Young People
• consult regularly with the Western Australian Commissioner for Children and Young People.325

Similarly, in New South Wales, the Committee on Children and Young People—a parliamentary joint committee established under the Advocate for Children and Young People Act 2014 (NSW)—oversees the work of the Children’s Guardian.326 Mr Kinmond indicated it was useful for a regulatory body to report to a ‘Parliamentary oversight body’ as an ‘important check and balance’.327

In Tasmania, the Integrity Commission, Ombudsman and Custodial Inspector—referred to in the Integrity Commission Act as ‘integrity entities’—are monitored by the Joint Standing Committee on Integrity of the Tasmanian Parliament.328 The functions of this committee are to:

• monitor and review the performance of the functions of integrity entities
• examine the annual reports or any other report of an integrity entity
• report to both houses of parliament on matters relevant to an integrity entity.329

To maximise independence, we consider the performance of the functions of the new Commission for Children and Young People should be monitored by a joint standing committee of the Tasmanian Parliament—whether by the Joint Standing Committee on Integrity or by another joint standing committee established for this purpose, as in Western Australia.

The Ombudsman and the Integrity Commission should have the power to receive and investigate complaints about the new Commission for Children and Young People as a ‘public authority’ under the Ombudsman Act 1978 (‘Ombudsman Act’) and the Integrity Commission Act respectively.330

Recommendation 18.9

A joint standing committee of the Tasmanian Parliament should oversee the performance and proper execution of functions of the Commission for Children and Young People.

1. Other oversight and regulatory bodies

While we expect the Commission for Children and Young People would be the primary gateway for child safety matters, we acknowledge there may be instances where complaints and concerns about how an organisation is working to protect children may fall within the jurisdiction of other oversight bodies—for example, where there is staff misconduct (Integrity Commission) or where there is a complaint about the administrative action of a public authority or a public interest disclosure (the Ombudsman).

While the Reportable Conduct Scheme will also ensure appropriate scrutiny and oversight of the management of child safety complaints in the most high-risk organisations in Tasmania, not all departments and organisations will be legally captured by these schemes where they are not directly involved with providing services to children. In addition, the Commission for Children and Young People may identify systemic concerns that fall outside its area of responsibility.

Even with a new Commission for Children and Young People with expanded functions, the Ombudsman would retain a role in investigating complaints about public authorities and public interest disclosures. The Integrity Commission would retain responsibility for promoting and enhancing standards of ethical conduct by public officers through education, dealing with and assisting public authorities in handling misconduct and making findings and recommendations regarding its investigations and inquiries. To achieve a cohesive and effective oversight system, we recommend greater clarity in how these bodies work together—and suggest that each should be proactive in encouraging any complaints or concerns that are within their powers to investigate and resolve. Once such complaints are received, these oversight bodies should work together seamlessly to achieve the best possible outcome that promotes the safety and wellbeing of children and young people—particularly through clear and enabling information sharing arrangements.

The Registrar of the Registration to Work with Vulnerable People Scheme also plays a role in managing the risks posed by staff and volunteers in a range of organisational settings.

In this section, we discuss the roles and functions of these other integrity and oversight bodies and make recommendations for improvements. Regarding the Registrar of the Registration to Work with Vulnerable People Scheme, we recommend statutory guidance on how they undertake an assessment of risk of harm.

1. Integrity Commission and Ombudsman

In Section 5.2, we propose a new Commission for Children and Young People that will support and oversee Tasmania’s introduction of Child and Youth Safe Standards and the Reportable Conduct Scheme. These measures will go a long way to reducing the need for recourse to other oversight bodies, such as the Ombudsman and Integrity Commission, as most matters relevant to children and young people will be within the remit of the new Commission. Organisations with the greatest risk factors for abuse will also be legislatively compelled under the Reportable Conduct Scheme to proactively notify the new Commission (as our recommended Independent Regulator) of any reportable complaints, which can then oversee and monitor the organisation’s investigation and response to that complaint to ensure it is appropriate. This increased transparency and scrutiny (alongside the capacity building that will occur as the new Commission supports and guides organisations in their responses) will increase the integrity and quality of organisational responses over time. However, these other oversight bodies will still play a role in protecting the integrity and good administration of the State Service.

We hold concerns that oversight bodies have sometimes inappropriately referred matters back to departments to investigate complaints against them. While referring complaints back to an entity is standard practice, judgment must be exercised in deciding whether this is appropriate, and the oversight body should retain oversight of the department’s subsequent actions.

The Integrity Commission told us it receives very few complaints about child sexual abuse.331 Where it does so, it would generally liaise with Tasmania Police and would be unlikely to take further action if a police investigation were to occur, unless the complaint raised broader concerns, for example, relating to poor reporting structures or procedures.332 We consider this appropriate, although note that in the future the complaint should also be referred to the Independent Regulator of the Reportable Conduct Scheme.

However, in Chapter 14, we discuss the Integrity Commission’s handling of a whistleblower complaint about Launceston General Hospital management’s response to child safety concerns relating to a registered nurse, James Griffin. In that complaint, the Integrity Commission conducted an initial assessment before referring it to the Department of Health to investigate. This departmental investigation was ultimately undertaken by the human resources team led by an individual who had a direct conflict of interest. Despite some reservations, the Integrity Commission ultimately accepted this investigation (which we now know was flawed) without further action. In that chapter, we find the Integrity Commission’s monitoring of the Department’s response to the complaint was insufficient.

In Chapter 11, Case study 7 we discuss how in the mid-2010s the Office of the Ombudsman referred a serious complaint made by a detainee back to Ashley Youth Detention Centre for response, without adequate monitoring and oversight. While we were told this was an error, this example shows why appropriate independent oversight over youth detention is important.

We consider it important that the Integrity Commission and Ombudsman clarify (and publicise) the circumstances in which it will be appropriate for complaints related to child sexual abuse to be referred back to an agency, and when it is not. We consider this guidance should consider the following matters:

• the significance of the matter being alleged or complained about and the risks associated with that conduct
• the potential for actual or perceived conflicts of interest in the relevant department or agency
• the capacity of the department or agency to undertake a robust and quality investigation
• the risks associated with retribution and reprisal toward the complainant and of their anonymity being compromised
• public considerations, including the importance of preserving public confidence in Tasmania’s integrity and oversight regime
• whether the complaint goes to matters relevant to multiple public authorities, which may benefit from a more global, systemic review by the entity.

Where possible, the Integrity Commission and Ombudsman should consult the complainant on the intended approach to managing the complaint (particularly if the oversight body wishes to send the complaint back to the relevant department or agency) to enable that individual to give their views on the suitability of this approach. This is particularly important if the complainant is seeking to maintain anonymity or is fearing reprisal.

Recommendation 18.10

1. The Integrity Commission and Ombudsman should develop a publicly available policy for complaints related to child sexual abuse which explains the circumstances in which complaints may be referred back to the agency that is the subject of the complaint for investigation.
2. The Integrity Commission and Ombudsman should consult the complainant on the intended approach to handling the complaint, including referring the complaint back to the relevant agency.

The Reportable Conduct Scheme will not capture all departments and organisations, which may leave a role for the Integrity Commission in overseeing the management of allegations of child sexual abuse in some situations. The Integrity Commission told us that currently, public authorities are not required to notify the Integrity Commission when they are responding to an allegation of misconduct (including serious misconduct). This means it ‘may not be aware of matters involving child sexual abuse’.333 Recommendation 11 of the Independent Five Year Review of the Integrity Commission Act 2009 requires public authorities to notify the Integrity Commission of any allegations of serious misconduct.334 The Integrity Commission advocated the Tasmanian Government implement this recommendation.335 We agree this should occur, where the agency does not have an obligation to notify the Commission for Children and Young People of the allegation under the Reportable Conduct Scheme.

Recommendation 18.11

The Tasmanian Government should implement Recommendation 11 of the Independent Reviewer’s 2016 Report Independent Review of the Integrity Commission Act 2009, which would oblige public authorities to notify the Integrity Commission of any allegations of serious misconduct.

1. Registrar of the Registration to Work with Vulnerable People Scheme

Registration to work with vulnerable people requirements are an important regulatory safeguard, as they provide for screening and monitoring of staff or volunteers who work with vulnerable people, including children. Tasmania requires individuals undertaking certain ‘regulated activities’, including a range of services to children (such as health, education and youth justice), to hold registration to work with vulnerable people.336

The importance of the role of the Registrar of the Registration to Work with Vulnerable People Scheme cannot be overstated. Although their office is small, it is pivotal to the administrative structures designed to protect children against sexual abuse. Any comments in this section should not be seen as criticism of the Registrar or the staff of their office.

1. Opportunities for reform

The former Registrar of the Registration to Work with Vulnerable People Scheme (‘Registrar’), Peter Graham, told us in his statement that, as at 31 July 2022, there were 147,878 people who held registration.337 Since establishing the scheme in 2014, there have been 2,204 people who have had their application for registration rejected (or have withdrawn their application after past conduct was queried), with a further 397 people having surrendered their registration (or having had it suspended or cancelled) in response to information reported to the Registrar.338

However, Mr Graham told us there were opportunities to strengthen the Registration to Work with Vulnerable People Scheme:

• ensuring a consistent understanding of reporting and notification requirements to make certain the Registrar receives information relevant to their decision making339
• all State Service agencies undertaking a systemic review of past complaints or investigations340
• amending the Registration to Work with Vulnerable People Act 2013 (‘Registration to Work with Vulnerable People Act’) to enable determinations to suspend or cancel registration to be the subject of review by the Tasmanian Civil and Administrative Tribunal341
• creating statutory guidance regarding the power of the Registrar to suspend a person’s registration.342

We heard that the Registrar is not consistently receiving information relevant to their decision-making, including from Child Safety Services.343 Mr Graham said he was, however, optimistic about the ability of the Child and Youth Safe Organisations Framework to help reinforce the obligations of agencies and other organisations to report behaviour.344

Mr Graham told us that he considered it ‘likely’ that a systematic review by State Service agencies of past complaints or investigations would reveal information that should be reported to the Registrar.345 In Chapter 11, we discuss examples of departments (including the Department of Justice and the former Department of Communities) not consistently reporting allegations of child sexual abuse received about current or former Ashley Youth Detention Centre staff. For this reason, we recommend in Chapter 12 an independent audit of past complaints and redress claims to ensure the Registrar has all relevant information they need to assess risk.

The Registration to Work with Vulnerable People Act requires that applications for the review of any decision or determination by the Registrar be made to the Administrative Appeals Division of the Magistrates Court.346 Mr Graham told us he would support change to enable determinations to suspend or cancel registration be reviewed by the Tasmanian Civil and Administrative Tribunal.347 We agree with this suggestion.

The Tribunal was created after the Registration to Work with Vulnerable People Act was introduced and we consider that its expertise in administrative law and its ability to provide appropriately qualified members to hear reviews makes it a more appropriate jurisdiction than the Magistrates Court for administrative reviews of determinations under the Registration to Work with Vulnerable People Act.348 The introduction of a tribunal review process would also make Tasmania’s approach consistent with that of other states and territories.349

Accordingly, we recommend that the Registration to Work with Vulnerable People Act be amended so that administrative reviews under the Act are undertaken by the Tasmanian Civil and Administrative Tribunal, instead of the Administrative Appeals Division of the Magistrates Court. Any legislative amendment should also require Tribunal members hearing administrative reviews of decisions under the Act to have the knowledge, skills, experience and aptitude to deal with each matter, including in relation to child sexual abuse, neglect and family violence.

We are aware that, where an applicant applies for a review of a determination of the Registrar to suspend, refuse or cancel their registration under the Registration to Work with Vulnerable People Act, there may be no person who opposes that application, whether the application is in the Magistrates Court or the Tasmanian Civil and Administrative Tribunal. We did not examine this issue in detail, and we are not making a formal recommendation about it. It is unclear to us whether the Registrar should be empowered to argue for such refusal, suspension or cancellation. This, however, may be an area where consideration could be given to providing a child affected by the registration, that child’s representative, the Commission for Children and Young People or a government agency the authority to intervene and oppose such review applications.

In Chapter 11, we find that occasionally, the Registrar of the Registration to Work with Vulnerable People Scheme adopted too high an evidentiary threshold in assessing whether Ashley Youth Detention Centre staff with allegations against them posed an unacceptable risk to children. Mr Graham also told us there is a lack of statutory guidance regarding the power of the Registrar to suspend a person’s registration. The Registrar is required to conduct an additional risk assessment of a registered person if they believe, on reasonable grounds, there is ‘new, relevant information about that person’.350 The Registrar is also empowered to suspend a person’s registration while this risk assessment is undertaken, but there is no guidance on when and how that action should be taken.351 Mr Graham told us he generally reserved this suspension power for situations where the new and additional information would likely prevent registration (for example, relating to a relevant criminal offence) or where he formed the view that the person posed an unacceptable risk and a suspension was justified while the cancellation process took place.352

The suspension of registration to work with vulnerable people can provide grounds for the termination of employment and Mr Graham reported that, at times, the Registrar has been pressured by agencies to suspend a person who is subject to an additional risk assessment.353 Mr Graham accepted sometimes this was a desirable outcome but also often meant that employment direction investigations may cease before completion.354 Mr Graham told us:

The existence of such a power, the absence of clear legal test and the lack of appeal mechanism has caused confusion and had unintended behavioural responses from agencies.355

In Chapter 20, we discuss a tendency by departments to prefer managing concerns about conduct of staff through Employment Direction No. 6—Inability, which allows for a determination that an employee is unable to perform their duties because of a loss of registration, instead of managing concerns by conducting misconduct investigations.

We also discussed the response of the Registrar to information received about staff at Ashley Youth Detention Centre in Chapter 11. While we accept the Registrar was often working with limited or incomplete information, we saw examples of what we consider a high evidentiary threshold adopted in relation to suspensions. We make a finding in that case study that, on occasion, the Registrar of the Registration to Work with Vulnerable People Scheme appeared to adopt too high an evidentiary threshold in assessing whether staff at the Centre with allegations against them posed an unacceptable risk to children.

The Registration to Work with Vulnerable People Act is clear that the Registrar’s assessment of whether a person poses an unacceptable risk to vulnerable persons is a predictive exercise to assess future risk to vulnerable persons, based on known facts and present circumstances.356 Such an assessment does not need to be based on proof of previous harm to vulnerable persons. For example, the Registrar may consider a past allegation of child sexual abuse in their assessment despite not having substantiated, or being able to substantiate, that that allegation occurred ‘on the balance of probabilities’.357

The broader understanding of a risk assessment under the Registration to Work with Vulnerable People Act is supported by the Second Reading Speech for the Registration to Work with Vulnerable People Bill which became the Act, which states that the Bill provides for a:

… broader basis on which to conduct background checking that includes a person’s criminal history, non-conviction information, relevant offences and other pertinent information.358

The concept of risk assessment and its predictive nature is not novel. It involves the evaluation of the likelihood of an event occurring, alongside gauging the magnitude of harm which may occur if the event occurs. The Registrar should decrease their threshold to determine whether to exercise their power under the Registration to Work with Vulnerable People Act to refuse or cancel registration as the risk that a person poses to vulnerable persons increases. That threshold should be lowered further in relation to a suspension of registration to protect vulnerable persons who may be at risk of harm while a comprehensive assessment of risk is undertaken.

We recommend that the Tasmanian Government provides the Registrar with guidelines for how risk assessments should be conducted. We further recommend that the Act be amended to provide that the principles outlined by the Federal Circuit and Family Court of Australia in the case named Isles and Nelissen regarding risk assessments be applied by the Registrar in determinations of risk relating to registration, suspension and cancellation of registration under the Registration to Work with Vulnerable People Act.359 That case considered the test relating to unacceptable risk under the Commonwealth Family Law Act 1975 (Cth). It referred to:

…two separate questions … on the one hand, whether or not allegations of abuse are proven on the balance of probabilities; and on the other, whether or not an unacceptable risk of harm is demonstrated, regardless of the finding made in respect of the frank allegations of abuse.360

That decision further held that the ‘tendency rule has no work to do when assessing risk’.361 This means the decision maker should not be precluded from considering evidence that might suggest a tendency of a person to abuse when assessing risk.

In Chapter 11, we also discuss instances where the Registrar had formed negative views about the complainants or sources of information to his office (in that instance, former detainees), including in some instances that complainants colluded or were financially motivated in seeking redress.362 While we accept the Registrar is entitled and indeed required to apply judgment and discretion when assessing and weighing information, we consider it beneficial for this to be clearly guided by statute to limit the risks of personal value judgments (some of which may be based on myths and misconceptions or reflect societal stigma) in making assessments relating to child safety.

Recommendation 18.12

1. The Tasmanian Government should introduce legislation or regulations to provide statutory guidance to the Registrar of the Registration to Work with Vulnerable People Scheme on the factors to be considered when conducting risk assessments in respect of applications for registration, suspension or cancellation pursuant to the Registration to Work with Vulnerable People Act 2013.
2. The statutory guidance should provide that (among other things):
   1. the assessment of unacceptable risk is a predictive exercise that is not necessarily capable of empirical proof nor subject to a particular standard of proof such as ‘the balance of probabilities’
   2. the assessment of unacceptable risk of harm to a child or children requires determination of two separate questions, without conflation, namely
      1. whether or not an allegation or allegations of previous harm to vulnerable people are proven on the balance of probabilities, and
      2. whether or not an unacceptable risk of harm is demonstrated regardless of whether there is a finding, on the balance of probabilities, that previous harm occurred
   3. the Registrar is not limited in the factors they can consider in assessing unacceptable risk, including information that suggests a person’s tendency to cause harm, as the ultimate determination of unacceptable risk is a predictive exercise
   4. when the Registrar is considering suspending a person’s registration, the focus on the prospective risk that a person may pose to children should have a lower evidentiary threshold, noting further assessment will likely occur prior to a decision to cancel registration or otherwise
   5. once the Registrar makes a determination that a person poses an unacceptable risk to a child or young person, irrespective of other factors (such as employment or mental health), that person’s registration must be refused, suspended or cancelled (as the case may be).

Recommendation 18.13

1. The Tasmanian Government should introduce legislation to amend the Registration to Work with Vulnerable People Act 2013 and related statutory instruments to replace the Administrative Appeals Division of the Magistrates Court with the Tasmanian Civil and Administrative Tribunal as the forum for administrative reviews of decisions under the Act.
2. The Tasmanian Government should:
   1. introduce legislation or regulations to require the Tasmanian Civil and Administrative Tribunal to support Tribunal members who hear administrative reviews of decisions under the Registration to Work with Vulnerable People Act 2013 to have the knowledge, skills, experience and aptitude to deal with each matter, including in relation to child sexual abuse, neglect and family violence
   2. provide sufficient funding to the Tribunal to support members to gain this knowledge, skills, experience and aptitude.

1. Coordinating oversight and regulation

As discussed, even with the establishment of the new Commission for Children and Young People, there will be instances where other bodies may need to assume responsibilities as they relate to child safety. For this reason, we recommend all these agencies work together to develop clear and user-friendly guidance describing their roles and responsibilities to help members of the public, and children and young people, to understand how they can raise concerns with these agencies and what to expect when they do. A single resource, including user friendly infographics, should be developed to support public understanding of the different roles and responsibilities of Tasmanian oversight bodies in relation to child safety. This includes reassurance and public commitment to a ‘no wrong door’ approach to complaints. This resource should be adapted for children and young people and form part of each agency’s community education activities as they relate to promoting the safety of children and young people within Tasmanian organisations.

Recommendation 18.14

1. The Commission for Children and Young People, the Registrar of the Registration to Work with Vulnerable People Scheme, the Integrity Commission and the Ombudsman should work jointly to develop a user-friendly guide for the general public, which describes:
   1. how each of these agencies can assist with complaints and concerns about how organisations respond to child sexual abuse
   2. the process these agencies will adopt in responding to reports, complaints and concerns, including what outcomes these agencies are empowered to achieve
   3. how information provided by a person lodging a report, complaint or concern will be shared and managed
   4. that agencies are committed to a ‘no wrong door’ approach to complaints, so people are reassured that all reports, complaints and concerns will receive a response from an agency
   5. pathways for raising concerns about the way any of these agencies respond to reports, complaints or concerns.
2. A child and youth-friendly version of the guide should also be developed and should be publicised and distributed widely in schools, out of home care, youth justice and health settings.
3. Both guides should be available on each of the agencies’ websites and form part of their child safety community education and engagement activities.
4. While the Commission for Children and Young People should be promoted as the key agency for receiving reports, complaints or concerns relating to conduct towards children, people should be able to raise reports, complaints or concerns with any of these agencies and these agencies should ensure the matter is appropriately referred (the ‘no wrong door’ approach).

1. Effective information sharing between oversight bodies

Effective information sharing is a crucial component of any child-centred system—not only to ensure risks to children and young people are effectively managed, but also to make certain responses by oversight or other agencies are clear and coordinated.

We examined the existing powers of the Commissioner for Children and Young People, Ombudsman and Integrity Commission to share information relevant to child safety, which we describe below:

• The Commissioner for Children and Young People is empowered to provide and request non-identifying information relating to a child or young person to and from an information-sharing entity.363 An information-sharing entity may also, on its own initiative, provide the Commissioner with non-identifying information.364 An ‘information-sharing entity’ is defined in the Commissioner for Children and Young People Act as having the same meaning as in the Children, Young Persons and Their Families Act 1997, and for our purposes includes a State Service officer or employee and other organisations providing health, disability and community services.365 ‘Non-identifying information’ is defined as ‘information in relation to a person that does not contain identifying details for the person or enable the identity of the person to be ascertained or discovered’.366 An individual who provides this information does not breach professional standards or incur any criminal or civil liability.367
• The Ombudsman Act contains provisions that enable information disclosure. A person may disclose information to the Ombudsman’s office where it relates to preliminary inquiries being made by the Ombudsman or to the making of a complaint or investigation by the Ombudsman.368 The Ombudsman may also disclose information to a person exercising similar functions in another Australian jurisdiction, the Integrity Commission and the Custodial Inspector.369 Protections are also available to the Ombudsman and its staff from criminal and civil proceedings for actions carried out in good faith under the Act.370 There do not appear to be similar protections for complainants.
• The Integrity Commission Act contains provisions relating to referring and exchanging information. The Integrity Commission may refer a complaint to a public authority, integrity agency, Parliamentary integrity agency, the Commissioner of Police or any other person the Integrity Commission thinks appropriate for investigation and action.371 ‘Personal information custodians’ are also authorised to disclose personal information to the Integrity Commission under the Personal Information Protection Act 2004.372 The definitions provide that ‘personal information custodians’ include government agencies.373
• The Registration to Work with Vulnerable People Act contains provisions allowing the Registrar of the Registration to Work with Vulnerable People Scheme to require a range of Tasmanian entities, as well as certain bodies outside Tasmania, with information it reasonably considers relevant to its powers and functions.374 The Registrar is also empowered to disclose particular information to a registering authority or prescribed entity (for example, agencies within the meaning of the State Service Act and Tasmania Police).375

We heard there are no consistent formal arrangements for information sharing between the Commissioner of Children and Young People, the Ombudsman and the Integrity Commission, with the determination of who is best placed to deal with a particular complaint often managed on a case-by-case basis.376 Mr Easton said the Integrity Commission has memoranda of understanding with various entities, including Tasmania Police and the Auditor-General. For information sharing between the Integrity Commission and the Ombudsman, Mr Connock and Mr Easton said they would generally resolve informally which of their agencies are best placed to manage a complaint where their interests intersect.377 Mr Connock felt informal information-sharing arrangements worked well: ‘So we have a good idea, having been doing it for a while, where things should go’.378

While we do not underestimate the benefit of informal and practical approaches to information sharing between agencies, we consider it a risk for information of such importance to be left to the experience and good judgment of individuals. This creates a risk that complaints or enquiries fall between the cracks where they do not neatly fit the definitions of this complex model, or they are considered in a fragmented or piecemeal manner by several entities, limiting the ability to give appropriate visibility to the risks to child safety posed overall. We consider there is benefit in the Ombudsman, Integrity Commission, Registrar of the Registration to Work with Vulnerable People Scheme and the new Commission for Children and Young People to have clear and formalised information-sharing agreements to underpin their informal practices. This is particularly the case if the new Commission for Children and Young People receives oversight functions and powers under our recommendations and under the Child and Youth Safe Organisations Act, which has extensive information-sharing provisions in Part 5.

Generally (and considering the views of a complainant), we consider:

• The Commission for Children and Young People should lead matters that relate to its responsibilities to monitor and enforce the Child and Youth Safe Standards and the Reportable Conduct Scheme for relevant organisations and its responsibilities to oversee and monitor incidents in the youth detention and out of home care systems.
• The Integrity Commission should lead the response to complaints about misconduct and serious misconduct by public officers (which may include child sexual abuse) that are not otherwise captured by the Commission for Children and Young People’s functions (for example, relating to agencies that are not legislatively required to comply with Child and Youth Safe Standards or the Reportable Conduct Scheme).
• The Ombudsman should lead the management of formal individual complaints about the administrative actions of a public authority that do not constitute reportable allegations.
• The Registrar of the Registration to Work with Vulnerable People Scheme should assess the suitability of individuals to work with, and alongside, children and young people. This assessment should be ongoing and subject to any additional information received about a registered individual.

Recommendation 18.15

The Commission for Children and Young People, the Integrity Commission, the Ombudsman and the Registrar of the Registration to Work with Vulnerable People Scheme should develop a formal memorandum of understanding relating to the management and oversight of reports, complaints and concerns relating to child sexual abuse and information sharing. The memorandum of understanding should:

1. define the roles, responsibilities, functions and limitations of each agency and describe where these overlap or intersect
2. require consultation prior to the initiation of systemic reviews or inquiries where the subject of that inquiry relates to areas of common interest or intersecting functions
3. provide for permissive and enabling information-sharing practices that prioritise the safety and welfare of children for individual matters and ensure each party receives from others de-identified trend data necessary to perform its functions.

1. Conclusion

Our Commission of Inquiry has established that Tasmanian children and young people are not as safe as they could be within organisations tasked with their care—including schools, health services, out of home care and youth detention. We recommend addressing specific risks and problems we identified in those specific settings, but firmly consider the foundations of child safety within organisations needs to improve across the board.

The primary objective for organisations should be to prevent child sexual abuse occurring in the first place. We consider this is best achieved through a combination of strategies, which includes robust community-wide education about the dynamics and risk factors associated with sexual abuse. We recommend the Tasmanian Government continues to work with the Australian Government to maximise the benefit of national prevention initiatives and ensure they are fit for purpose in Tasmania. In our chapter on children in the education system, we recommended specific preventative programs targeting school students.

We also consider that organisations must be proactive in developing policies and practices that target the specific risks of sexual abuse that arise in their setting, and consider legislated Child and Youth Safe Standards to be the best mechanism to ensure this occurs and endures.

We accept that no child safe system will be perfect. For this reason, it is critical to have robust and transparent processes to ensure any complaints and concerns that arise within organisations are dealt with quickly and prioritise the safety and wellbeing of children and young people. Responding to child safety concerns is not easy. Organisations will benefit from guidance and support. To ensure this occurs, and to ensure the integrity of investigative processes, we consider a reportable conduct scheme—which ensures there is appropriate support and oversight into organisational responses to complaints or concerns—is also an essential element to improving safety for organisations with the most direct contact with children and young people.

Working in tandem, we consider these regulatory schemes will improve safety for Tasmanian children and young people and build community trust and confidence in processes to register complaints and concerns individuals may have about the safety of children.

Having an empowered, well-resourced and suitably skilled Independent Regulator will be integral to the success of these schemes. We heard from experts in Victoria and New South Wales about the factors that made those jurisdictions’ implementation of Child Safe Standards and a reportable conduct scheme successful. We also learned about the necessary functions and features of an effective oversight body in the context of child safety.

We consider the best way to support Tasmanian organisations to be safe for children and to provide oversight and scrutiny to particularly high-risk groups (including those in the out of home care system and within youth detention) is for Tasmania to establish a new Commission for Children and Young People, with a broader suite of powers and functions than those of the current Commissioner for Children and Young People. We also recommend establishing a dedicated role to promote the interests, wellbeing and cultural safety of Aboriginal children and young people.

A new Commission for Children and Young People should assume the monitoring and oversight functions of the Independent Regulator for the Child and Youth Safe Organisations Act. It should have specific powers to monitor and investigate concerns relating to the out of home care and youth justice systems. The new Commission should be fiercely independent, appropriately resourced and sufficiently empowered to lead genuine change across Tasmania. We make several recommendations directed at supporting this goal.

We consider the Child and Youth Safe Standards and the Reportable Conduct Scheme operating in tandem and overseen by a well-resourced and empowered Independent Regulator, will go a long way towards reducing the need for recourse to other oversight bodies, such as the Integrity Commission and the Ombudsman. However, these bodies may still play a role, particularly in addressing specific complaints and targeting broader systemic risk factors within organisations that can increase risks of abuse, particularly as they relate to misconduct, poor decision-making and tolerance for poor behaviour and practice. We consider it will likely increase the level and quality of information available to inform decisions of the Registrar of the Registration to Work with Vulnerable People Scheme. For this reason, we recommend the Ombudsman, Integrity Commission, Registrar of the Registration to Work with Vulnerable People Scheme and a new Commission for Children and Young People clarify and formalise their respective functions and information-sharing arrangements, and ensure these are clear to the community. We also recommend further clarifying the powers of the Registrar of the Registration to Work with Vulnerable People Scheme to suspend individuals when taking additional risk assessments relating to registered individuals.

We hope that over time, recourse to oversight bodies will be reduced, as organisations’ proactive efforts to prevent abuse greatly reduce harm to children and ensure any complaints and concerns are managed quickly and effectively by the organisation at the earliest opportunity. We expect this to occur as Child and Youth Safe Standards and the Reportable Conduct Scheme become more thoroughly embedded across Tasmanian organisations. However, we consider there will always be a need for oversight bodies to be vigilant to risks to child safety and responsive to concerns about managing those risks.