Changes at last on child protection

After five years of campaigning by Federation, the Carr Government has recognised that the previous child protection legislation was flawed. JOAN LEMAIRE reports.

When Education Minister Dr Andrew Refshauge introduced the Child Protection Legislation Amendment Bill into Parliament on September 2, he said: "The current legislation inappropriately captures some conduct such as some very low physical contact by teachers. While this conduct may not always be appropriate it should be dealt with by principals rather than being reported to the Ombudsman or the Commissioner for Children and Young People."

Even more importantly he acknowledged that, "it is important to strike the right balance between protecting children and allowing professionals in child related employment to carry out their duties without fear of unwarranted allegations of child abuse. This bill seeks to respond to feedback from professional groups, that changes are necessary to achieve the right balance and improve how our system is working in practice."

This Bill does not respond to all of the concerns Federation has raised, particularly in relation to vexatious and malicious complaints. It does, however, mark a significant shift in thinking. The original legislation was based on a view that any allegation of child abuse, whether proven or not, points to a risk to children. Now the context of the situation and the reasonableness of the person's behaviour in this context will be considered.

The amendment proposes changes to the definition to "reportable conduct" in both the Ombudsman Act and the Commission for Children and Young People Act. This is now defined in the Bill as:

"Reportable conduct means:
"(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence), or
"(b) any assault, ill-treatment or neglect of a child, or
"(c) any behaviour that causes psychological harm to a child,
whether or not, in any case with the consent of the child.
"Reportable conduct does not extend to:
"(a) conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or
"(b) conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA."

Previously the allegation was only considered in relation to the particular child or children to whom the allegation referred. Now matters such as physical restraint of one child to protect other children as long as it is reasonable would not be reportable conduct. Under the existing legislation an allegation of child abuse in this circumstance would have to be notified to the Ombudsman, investigated by the Department of Education and Training (DET) and, whether or not the allegation was substantiated, the name of the person would have to be notified to the Commission for Children and Young People (CCYP). The person would have to be risk assessed if they left the DET and applied for other child related employment. It appears from the Bill that there would still be an investigation of the allegation, but if it was found to be reasonable conduct it would not be reported to the Ombudsman or CCYP.

Federation will continue to lobby the Government for further changes to achieve the balance the Minister described above. The union will also have further work to do in terms of ensuring that the implementation of the amendments is done in a manner that is fair and balanced.

Congratulations to members for their efforts in supporting the campaign to change the child protection legislation. It has taken some time but it is a change for the better.

Joan Lemaire is an Industrial Officer.

More needs to be done

For further information

September 2003 contents