This report reflects ACT law as at November 1993. Committee Reference: CLRC No 6.
The ACT established the Community Law Reform Committee in June 1990. The purpose of the Committee is to:
. help the ACT identify areas in need of reform;
. anticipate emerging social and legal issues; and
. assess the practical impact of various proposals and laws on ACT people.
The Committee's Office and Secretariat are at the third floor GIO Building, City Walk, Canberra City ACT 2601 (Telephone (06) 2070546 fax (06) 2070538).
This report was tabled in the ACT Legislative Assembly on 16 December 1993.
ISBN 1036-5575
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Copyright in this publication is waived. It may be copied and used without the need for permission being sought. However, acknowledgment of the source should be made.
"Child Abuse" includes all forms of physical sexual and emotional abuse of children and the neglect, maltreatment or exploitation of children.
"The Family Support Model" is a general term used for a methodology of intervention which adopts as its highest priority the prevention of abuse and further abuse of children. It is sometimes contrasted with the "Criminal Model" where highest priority is given to dissuading further abuse by prosecuting an offender.
"Institutional abuse" is the physical, sexual or emotional abuse of young people by adult caregivers while the young person is in residential, institutional care.
"Mandatory Reporting" occurs where a person is obliged by law to report specific forms of child abuse to a government authority where that person reasonably suspects that that abuse has occurred.
"Systems abuse" is the indirect abuse of children by the lack of decision making as to their futures, the constant moving of children to new placements and no permanency planning being done for the child.
1. The task of protecting children in our society is a challenging one for all of the community. Every society needs a variety of ways, social, economic, moral, legal and environmental in which to do this. It is the balance of these which lies behind many of the issues surrounding the debate on whether or not to introduce mandatory reporting of child abuse. The issue of mandatory reporting is a complex one which has implications for children, families, workers and the ACT Government. On the basis of our research and submissions to the Committee it is apparent that mandatory reporting is not a straightforward legal solution to child abuse in the ACT and needs to be considered carefully. It became obvious at an early stage that the issues of reporting protocols between government departments, the response of the system to reports, the resources available to the system and the services available to children and families before and after reporting were of equal importance to the legal issues.
2. Currently all people in the ACT are empowered to report instances of child abuse including physical, sexual or emotional abuse. A person who makes a report does not breach professional ethics and does not become liable to civil or criminal process if the report is made in good faith and on reasonable grounds.
3. However, under this voluntary system of notification of child abuse, no person is under a positive legal obligation to report instances of child abuse. A person who believes that a child has been abused may choose not to report the matter in the ACT. This report considers whether it should be compulsory for certain people to report child abuse.
4. There is great diversity of views in the community about the mandatory reporting of child abuse. Some people argue for the immediate introduction of mandatory reporting of child abuse as a means of protecting children. Other people oppose its introduction because it would divert scarce resources away from programs delivering assistance to families and "at risk" children. It has been argued that the notification of child abuse should be left to professional discretion rather than automatic state intervention. A number of adolescents expressed the view that mandatory reporting took away their right to influence the direction of their life, while many people argue it is of philosophical importance to introduce mandatory reporting. The arguments for and against the introduction of mandatory reporting are canvassed in detail in a later chapter.
5. Complex issues requiring law reform are referred to the Community Law Reform Committee by the Attorney General. The Committee is an independent body, ensuring impartial advice to the Government. In this case, the Attorney General, Terry Connolly circulated an issues paper which set out the background to the reference.
6. When the Committee receives a reference, the members of the Committee examine the reference and determine a general strategy for ensuring maximum public consultation. Where appropriate, the Committee establishes a supervising sub-committee which is responsible for publicity, research, public hearings and the preparation of draft recommendations for the Committee. The supervising sub-committee is assisted by a senior lawyer from the ACT Law Reform Unit.
7. In this reference, the Committee established a supervising sub-committee consisting of Ms Jennifer Kitchin (Director, ACT Barnardos), Mr Ron Cahill (Chief Magistrate) and Mr Graeme Lunney (Barrister). This sub-committee met on more than forty occasions during the reference to manage the direction of research, information sessions and public hearings. Mr Peter Quinton, Director of the Law Reform Unit, and later Ms Kate Waterhouse, acting Director of the Unit, assisted the sub-committee. Ms Liesha Host, University of Canberra, assisted the sub-committee for six months in 1992. Towards the end of the reference, after a meeting of the full Committee, the membership of the sub-committee changed to Professor Duncan Chappell (Director, Australian Institute of Criminology), Mr Nicholas Seddon (Reader, Australian National University) and Ms Jennifer Kitchin. This sub-committee, building on the very considerable amount of work of the earlier sub-committee, prepared the majority report. Mr Graeme Lunney prepared the minority report.
8. There have been some delays in preparing this report due to the difficulties in accumulating statistics about child abuse notifications in the ACT over the last five years. This has led the Committee to recommend that more attention be given to the collection of statistics and the centralising of information regarding child abuse.
9. The Committee took as its starting point the special responsibilities of the State as enumerated in the United Nation's Declaration of the Rights of Children. While this declaration does not specifically cover the issue of mandatory reporting of child abuse, some of its Articles have bearing on this reference, particularly Articles 3, 19 and 39 which are set out below. Article 3 states:
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.
2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures.
3. States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision.
Article 19 states:
1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.
2. Such protective measures should, as appropriate, include effective procedures for the establishment of social programmes to provide necessary support for the child and for those who have the care of the child, as well as for other forms of prevention and for identification, reporting, referral, investigation, treatment and follow-up of instances of child maltreatment described heretofore, and, as appropriate, for judicial involvement.
Article 39 states:
States Parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of: any form of neglect, exploitation, or abuse, torture or any other form of cruel, inhuman or degrading treatment or punishment, or armed conflicts. Such recovery and reintegration shall take place in an environment which fosters the health, self-respect and dignity of the child.
10. In the first stage of the reference, the sub-committee attempted to identify the needs of the community by talking to people about mandatory reporting. As part of this process, the sub-committee held a series of public meetings to raise community awareness and understanding of the issues throughout Canberra suburbs. The sub-committee also held more formal public hearings on 2/3/92 and 3/3/92 at the Institute of Criminology. These meetings were widely advertised in The Canberra Times and other community and occupational newspapers (including The Canberra Doctor). In particular, the sub-committee took care to ensure that the views of children should be taken into account and actively sought the views of children in relation to mandatory reporting. During the term of the reference more than 50 individual meetings were held with community groups and members of the community. In addition evidence was taken in confidence from 45 individuals.[1]
11. In the second stage, the sub-committee attempted to collate relevant statistical information of a local and comparative nature.
12. The sub-committee then examined the needs disclosed through the analysis of the health system (and factors contributing to problems with the system), philosophical considerations, review of literature, consideration of the target group, and assessment of community resources. The sub-committee then developed and assessed the viability of different models which were designed to 'fix' identified problems. Strategies to use in the development and implementation of these models were developed. The sub-committee considered processes to evaluate implemented models.
13. Law reform is not only about the need to change, adapt or create laws. It also is concerned with the law's accessibility and presentation. Laws and documents should not be drafted on the assumption that a trained lawyer will be available to interpret them. The Committee advocates the use of plain English throughout Government and the legal profession. Accordingly, the sub-committee has placed special emphasis on ensuring that the problems it has identified will be addressed by legislative and administrative action which is simple and understandable. However, it should be acknowledged at the outset that while the introduction of mandatory reporting may appear a simple legislative action, the accompanying administrative action is not simple. A major finding from the sub-committee's hearings was the current complexity of, and problems in the coordination of, the agencies' handling of reports of child abuse.
14. This section examines the background to changes to the law concerning the reporting of child abuse and the present law.
15. The protection of children from abuse is a relatively recent concern of the law. Last century saw the first successful moves to prohibit the slavery of children, the use of children as low cost workers in factories and farms and the payment of children by way of food rather than cash (called "truck"). This century saw the establishment of free education, vocational training and a state run child-welfare system.
16. However, while community attitudes continued to undergo a revolution in thinking about the rights of children to minimum standards of comfort, succour and safety, very few changes occurred to this basic legal infrastructure in the ACT. As late as 1986, young children were charged with the "criminal" offence of being neglected and other children and young adults were charged with the criminal offence of being "uncontrollable".
17. Against this background, in 1981, the Australian Law Reform Commission (ALRC) made a far reaching and comprehensive report about the law relating to child welfare in the ACT.[2] The ALRC recommended a series of radical reforms designed to divert children from traditional court-based systems into alternative systems of family prevention or care. The ALRC recommended the creation of a statutory officer, namely the Youth Advocate, to safeguard the legal rights of children and recommended a series of specific offences to deal with crimes against children (including neglect and emotional abuse).
18. The ALRC in 1981 considered voluntary and mandatory reporting of child abuse. While the ALRC did not have access to detailed empirical evidence, it surmised that child abuse is more common than most people believe. The Commission concluded:
It is imperative that we do not condemn children to neglect and indifference. Compulsory reporting makes possible the provision of care and protection. Compulsory reporting legislation should be enacted in the ACT.
19. The ALRC had little difficulty in recommending that protection should be given to people making voluntary reports of child abuse. However, it was faced with competing views about introducing mandatory reporting of child abuse. The ALRC gave the following six reasons for its conclusion favouring the introduction of mandatory reporting:
. Accompanying increase in reported cases. It is doubtful whether it could ever be conclusively proved that compulsory reporting causes more cases of abuse to come to notice. On the other hand, neither has the claim that compulsory reporting legislation deters parents from seeking medical help been statistically proven. Clearly, other factors, such as publicity or the provision of services, may be relevant to any change in the number of cases reported or in the response of parents. The Commission favours the view that the introduction of compulsory reporting is likely, on the evidence, to be accompanied by a significant increase in reported cases of abuse.
. Basis for commitment. Legislation is an essential element in establishing a public commitment to the protection of children.
. Breaking the chain. Re-occurrence of abuse following a notification need not be the result of a retributive reaction on the part of the parent. It may have been likely to occur in any case in the context of the continuation of pressures which precipitated the first incident. At least if notification has been made there exists a real possibility of prevention through the provision of supporting services. Maltreatment is often a continuing activity and even at the cost of the parents blaming the child the chain should be broken: abuse can result in serious injury to, and sometimes the death of, the child.
. Reluctance overcome. At present the reluctance of many professionals to break well-entrenched and long established habits of professional confidence and unwillingness to become involved in legal proceedings, which expose them to professional discipline and criticism by their peers and which take them away from their work, may contribute to a disinclination to report. Legislation would overcome this reluctance to become personally involved and would impose a public duty to do so.
. Value of sanction. It is conceded that where compulsory reporting legislation attaches a sanction for breach of the duty to report, prosecutions may rarely be commenced or be successful. Some jurisdictions have in fact opted to attach no criminal sanctions, as is the case, for example, in Ontario. However, the Commission believes that the existence of the sanction is more important than its enforcement: it can purposefully be used to educate, to direct and to reinforce good intentions rather than to provide a basis for prosecutions. The occasional prosecution serves the additional purpose of alerting professionals to their legal duties.
. Paramount consideration. The need for express child abuse reporting laws is not avoided by arguments which rest upon any general civic and moral duty to disclose knowledge of crime and wrongdoing. The purpose of legislation is to make plain where the duty lies. Furthermore, a compulsory reporting law emphasises that the paramount consideration is the safety of the child.
20. In 1986 the Governor-General, on the advice of the Federal Executive Council, made the Children's Services Ordinance 1986. This Ordinance, which is now the Children's Services Act 1986, was made as a direct result of the Australian Law Reform Commission Report on Child Welfare. This Ordinance included a provision requiring the mandatory reporting of child abuse. However, through a process explained below, this provision did not become law at the time of the introduction of the 1986 Act in the ACT.
21. Despite the enactment of the Children's Services Act 1986, child abuse in the ACT continues to be dealt with by a number of discrete laws. This section examines these laws.
22. The common law has always required people to report serious criminal activity to enforcement authorities.[3] Failure to report serious criminal activity is itself a common law offence called misprision of felony. A person is guilty of the offence if, knowing that a felony has been committed, he or she fails to disclose his or her knowledge to those responsible for the administration of justice.
23. Because of the uncertainty surrounding the use of the common law, the Australian Law Reform Commission argued strongly against reliance on it. There are considerable practical difficulties in bringing a prosecution for common law offences and courts are reluctant to entertain such a prosecution.[4] In view of these uncertainties, there are very few prosecutions for common law offences in the ACT.
24. The Committee agrees with the views of the Australian Law Reform Commission and considers that the common law rules relating to misprision of felony are archaic. The Committee recommends that the common law rules relating to misprision of felony be expressly repealed by the ACT and replaced by legislation which is appropriate for the ACT.5
25. The Committee is not aware of any attempted prosecution against a person who has failed to report a criminal offence against a child in the ACT under these common law provisions.
26. The Crimes Act 1900 contains most of the criminal law in force in the Territory. The Act makes it an offence to aid and abet a criminal or to be an accessory to a crime after the crime has been committed. Merely failing to report child abuse is probably not an offence.
Aiding and abetting
345. A person who aids, abets, counsels or procures, or by act or omission is in any way directly or indirectly knowingly concerned in, or party to, the commission of an offence under a law of the Territory shall be deemed to have committed that offence and shall be punishable, on conviction, accordingly.
Accessory after the fact
346. A person who receives or assists another person who is, to the knowledge of the first-mentioned person, guilty of an offence under a law of the Territory in order to enable that other person to escape punishment or to dispose of the proceeds of the offence is guilty of an offence punishable, on conviction, by:
. if the first-mentioned offence is the crime of murder--imprisonment for life;
. if the first-mentioned offence is an offence referred to in section 101 or 103[6]--imprisonment for 14 years; or
. in any other case--imprisonment for 2 years.
27. The Committee is not aware of any attempted prosecution against a person who has failed to report a criminal offence against a child in the ACT under these provisions.
28. Section 103 of the Children's Services Act 1986 makes provision for voluntary and mandatory reporting of child abuse. As noted above, the provisions relating to the mandatory reporting of child abuse have no effect as yet. Section 105 of the Act provides criminal and civil protections when a report of child abuse is made under section 103.
105(1) Where a person in good faith notifies the Community Advocate[7] as provided by section 103-
(a) the notification shall, for all purposes, be taken not to be a breach of confidence or of professional etiquette or ethics or of a rule of professional conduct;
(b) no civil or criminal liability is incurred by reason only of the making of the notification;
(c) subject to sub-sections (2) and (3), the notification is not admissible in evidence in any proceedings in a court and evidence of its contents is not so admissible; and
(d) subject to sub-section (2), a person shall not be compelled in any proceedings to produce the notification or a copy of, or extract from, the notification or to disclose, or give any evidence of, any of the contents of the notification.
29. Section 103(1) of the Act provides that any person may voluntarily report child abuse.
103.(1) Where a person, on reasonable grounds, suspects that there exist, have existed or may come into existence with respect to a child such circumstances as may make it appropriate that proceedings should be taken with respect to the child under this Part, the person may notify the Community Advocate of those circumstances or may cause the Community Advocate to be so notified.
30. The reference in the section to "such circumstances as may make it appropriate that proceedings should be taken with respect to the child under this Part" is a reference to care proceedings under Part V of the Act. Section 71 of the Act takes a very broad approach to what constitutes a child in need of care. It includes a child who has been physically or emotionally injured (except by accident) or sexually abused. However, voluntary reporting also extends to children in the following situations:
. where the child's health (including physiological health) has been impaired or is likely to be impaired by reason of the circumstances in which the child is living or found;
. where the child engages in behaviour harmful to the child but the child's guardians are unable or unwilling to intervene;
. where there is no appropriate person to care for the child;
. where there is a serious incompatibility between the child and the child's parent or guardian; or
. where the child persistently fails to attend school and the failure is harmful to the child.
31. Under the Act, any person in the community may make a voluntary report to the Community Advocate. The Advocate or Family Services Branch, following examination of the circumstances, may then bring Court proceedings. The onerous burden of proving child abuse does not rest with the person making the complaint.
32. During the course of the Committee's consideration of this reference, concern was expressed by a number of senior health bureaucrats to the effect that section 86 of the Health Services Act 1990 (a secrecy provision) had the unintended effect of taking away from public health officers (including community nurses) the capacity to make a voluntary report or provide certain other assistance to the Community Advocate or other agency.[8] The Committee immediately raised this issue with Health and Family Services officers and notes, with satisfaction, the repeal of section 86 of the Health Services Act 1990. However, a number of issues remain. The Committee is concerned to prevent future legislation unintentionally diminishing the ambit of section 103 of the Children's Services Act 1986. To avoid this, the Committee supports legislative entrenchment of section 103 so that it can only be amended expressly. In addition, the Committee believes that officers within the Department of Health should be specifically advised that any impediment to the exercise of their legal right to report under section 103 has been removed.
The Committee recommends that:
. section 103 of the Children's Services Act should be entrenched in such a manner that only deliberative legislative action should affect it; and
. officers within the Department of Health should be specifically advised that any impediment to the exercise of their legal right to report child abuse under section 103 has been removed.
33. Section 103(2) of the Act, which has not been commenced in the ACT, provides that certain professionals were subject to a legal duty to report child abuse.
103(2) Where-
a medical practitioner, dentist, nurse, police officer, teacher or person employed to counsel children in a school, in the course of practising his or her profession or carrying on his or her calling in the Territory;
a person employed in the Department or by the Health Authority whose duties include matters relating to children's welfare, in the course of performing those duties; or
a person providing child care at premises in respect of which licence under Part VII is in force, in the course of providing that care,
on reasonable grounds, suspects that a child has suffered physical injury (otherwise than by accident) or has been sexually abused, the person shall notify the Community Advocate accordingly or cause the Community Advocate to be so notified.
Penalty: $1,000 or imprisonment for 6 months, or both.
34. Section 103(2) is in similar terms to the provision suggested by the Australian Law Reform Commission. Section 105 (set out above in para 28) protects professionals making such a report in good faith from criminal and civil repercussions.
35. In one important respect, mandatory reporting is much narrower than voluntary reporting. Mandatory reporting is limited to cases of non-accidental physical injury and sexual abuse. Unlike voluntary reporting, it does not extend to a wide range of other situations where a child might be in need of care as prescribed by section 71 of the Act (such as truancy or incompatibility with parents.)
36. Unlike the law relating to voluntary reporting, the mandatory reporting provision has never come into operation. There were a variety of reasons for never commencing this provision which included the diversity of opinion within the community about mandatory reporting.[9] Consequently, the ACT is in the invidious position of having a provision on the statute books which, to the casual observer, appears to be law but which, in reality, has never been commenced and so is not in force.
The Committee recommends that the common law rules relating to misprision of felony be expressly repealed by the ACT and replaced by legislation which is appropriate for the ACT.
The Committee recommends that:
. section 103 of the Children's Services Act 1986 should be entrenched in such a manner that only deliberative legislative action should affect it; and
. officers within the Department of Health should be specifically advised that any impediment to the exercise of their legal right to report child abuse under section 103 has been removed.
37. There are fundamental differences in the laws in different Australian jurisdictions relating to reporting child abuse. These differences are cause for concern. While calls for uniform legislation should be considered with some care, the Committee believes that there is a demonstrable need for all Australian jurisdictions to establish standard practices in relation to child abuse. Special issues arise in relation to the ACT because of its size and location within NSW. The Committee recommends that active steps be taken to ensure that the States and Territories establish complementary legislation and practices. The Committee recommends that interstate orders and practices should be recognised by ACT law to ensure continuity of protection of children and consistent treatment of perpetrators when they cross into different jurisdictions.
38. The Committee is also concerned that information regarding child abuse is shared between jurisdictions. The families in which abuse occurs often move from state to state, and background information about a case can be very important in making decisions about a child's welfare. The Committee recommends that active steps be taken to ensure that all Australian jurisdictions will exchange background information in cases where a child has moved jurisdictions and there are allegations of abuse.
39. The Committee has also had difficulties in finding comparative Australian statistics on child abuse. One problem is the differing definitions between jurisdictions of what amounts to substantiation of abuse. For example, most jurisdictions use the categories "substantiated" and "unsubstantiated". However, in Victoria cases are categorised as "registered" or "unregistered". The term "registered" is not equivalent to "substantiated" because it excludes cases where there is evidence of abuse but harm is considered to be minimal and there is no continuing risk. This would be an important issue to consider in standardising the collection of statistics. The Committee recommends the free exchange of statistics between states and territories, with standardised procedures for collection and analysis of statistics. The Committee considers that the National Child Protection Council would be an appropriate body to coordinate this.
40. New South Wales, South Australia, Tasmania, Queensland, Victoria and the Northern Territory have adopted laws requiring the mandatory reporting of child abuse. Western Australia and the ACT are the only Australian jurisdictions where mandatory reporting has not been introduced.
41. However, reporting rules between these States are dissimilar and apply to different professional groups.
State NSW SA Tas Qld Vic* NT
Medical practitioner Yes Yes Yes Yes Yes Yes
Registered dentists Yes
Registered nurses Yes Yes Yes Yes
Registered psychologists Yes Yes Yes
Pharmaceutical chemists Yes
School principals Yes Yes Yes Yes
School teachers Yes Yes Yes Yes
Registered teachers Yes Yes Yes
School counsellors Yes Yes Yes
School social workers Yes Yes Yes
Kindergarten teachers Yes Yes Yes
Pre-school teachers Yes Yes Yes
Police officers Yes Yes Yes
Probation workers Yes Yes Yes Yes
Social workers Yes Yes Yes Yes
Voluntary welfare workers Yes Yes** Yes
*Victoria is adopting a staged approach to the implementation of mandatory reporting. Doctors, nurses and police are the first professional groups to be required to report.
**If they possess post-secondary qualifications in youth, social or welfare work.
42. In addition, the Commonwealth has passed legislation which requires
. a Registrar of the Family Court to report an allegation or fear of child abuse; and
. a member of the Family Court personnel to report when they become aware of or fear child abuse.[10]
43. These requirements extend to staff of the ACT Magistrate's Court in their exercise of these Commonwealth functions.
44. New South Wales, Victoria, South Australia, the Northern Territory, Tasmania and Queensland have central registers which hold information about notifications of child abuse. The South Australian, Northern Territory, Tasmanian, Queensland and Victorian registers hold additional information about the perpetrator. Registers are potentially valuable sources of information for workers involved in intervention, policy makers acting on empirical information and Governments considering the need for increasing or reducing financial resources in this area. However, the maintenance and use of registers pose significant organisational and privacy issues.
45. There were a number of people, who in their submissions, requested the existence of some form of advisory panel/workers who could provide the following functions for them;
. an avenue to discuss a situation of possible child abuse which may be a cause for concern;
. assistance in deciding whether or not to make a formal notification; and
. on line advice on the next step in the reporting process.
The Committee acknowledged the need for workers to have an avenue for "sounding out" someone on a case, but thought it would only increase the complexity of the system to add yet another group of workers. The Committee considered that this function should be performed by ACT Family Services Branch but the "sounding out" process must be able to function without tripping the mandatory reporting mechanism. The Committee recommends that Officers of the Family Services Branch of the ACT's Housing and Community Services Bureau perform an advisory function for other agencies and individuals who wish to "sound out" particular cases.
46. The Committee considers that central registers provide an important function. They enable case workers thoroughly to research similar cases or previous instances concerning the same victim or perpetrator. They also provide a base for the compilation of statistics and for those conducting research. The Committee recommends that, irrespective of any decision regarding mandatory reporting, a central information register of notifications of child sexual abuse and serious physical abuse of children be established with regard being had to access and privacy issues.
47. The Committee considers that there should be a register of perpetrators where allegations of abuse have been substantiated. The Committee acknowledges that 'substantiated' as a criterion is a rather vague concept. It will involve a judgement made by an investigator based upon the evidence available to that person, and his or her perception of the significance and gravity of that evidence. Decisions on borderline cases will vary from person to person. The Committee therefore takes the view that a safeguard should be introduced to enable application to be made to the ACT Administrative Appeals Tribunal (AAT) for removal of the name of an alleged perpetrator from the Register or for amendment of the Register. The Committee notes that the AAT has available to it appropriate procedures for the protection of privacy of parties and witnesses in proceedings.
48. The Committee considers that perpetrators should remain on the Register until their death or the removal of their name in accordance with a decision of the Administrative Appeals Tribunal. There should also be a separate register of victims which records all notifications whether substantiated or not. Victims should remain on the register until the age of 18.
49. The Committee recognises that 'substantiation' of an allegation of child abuse should not be equated with conviction for an offence because of the different standards of proof involved. Accordingly, the use of the Registers should be strictly limited to the prevention and detection of child abuse and should not be available for general crime prevention purposes. Agencies directly involved in investigating reports of child abuse, including the police, should have access to these Registers to assist in their investigations. In addition, agencies who are working directly with children, such as child welfare services, child care centres, educational institutions and refuges should be able to run "checks" on the perpetrator register for potential employees. All such access must be subject to appropriate statutory protection of privacy and to secrecy protections in the Children's Services Act itself. Access to the Registers will need to be authorised by a Registrar as outlined below.
Information should also be disclosed to interstate agencies involved in investigating reports of child abuse, where a family has moved from the ACT to interstate.
50. The Registers should comply with the Information Privacy Principles outlined in the Commonwealth Privacy Act 1988, which the Committee understands will be re-enacted in complementary ACT legislation. Principle 11(1) sets limits on the disclosure of personal information as follows:
1. A record-keeper who has possession or control of a record that contains personal information shall not disclose the information to a person body or agency (other than the individual concerned) unless:
(a) the individual concerned is reasonably likely to have been aware, or made aware under Principle 2, that information of that kind is usually passed to that person, body or agency
(b) the individual concerned has consented to the disclosure;
(c) the record-keeper believes on reasonable grounds that the disclosure is necessary to prevent or lessen a serious and imminent threat to the life or health of the individual concerned or of another person;
(d) the disclosure is required or authorised by or under law; or
(e) the disclosure is reasonably necessary for the enforcement of the criminal law or of a law imposing a pecuniary penalty, or for the protection of the public revenue.
51. The Committee considers that in order to ensure compliance with the Privacy Act, legislative provisions regarding the Registers are desirable, probably by way of amendments to the Children's Services Act. This will ensure compliance with Principle 11 by falling within the grounds of paragraph (c). These amendments would :
- establish the Registers;
- outline what information they should contain;
- specify the purposes for which information may be disclosed;
- create the position of Registrar;
- allow disclosure of information from the Registers only with approval from the Registrar; and
- provide for persons whose names are placed on the Register to have the right to appeal to the Administrative Appeals Tribunal to have their names removed or the record amended.
It is important that the amendments should specify the purpose for which the Register may be accessed, and exclude other uses, including those in paragraphs (d) and (e) above.
52. The Committee considers that it would be appropriate for the Registers to be maintained by the Executive Director of Family Services Branch. There should be statutory protection of the Registers and rules regulating access, so that disclosure can only be made to those whose duties include the investigation of child abuse, and child care facilities wishing to perform a "check" on potential employees. The Registrar should have an overriding discretion to refuse access to the Register in a particular case if he or she considers this to be desirable in the interests of the child concerned.
53. It is essential that the register itself be secure, to accord with Principle 4 of the Privacy Act which states:
A record-keeper who has possession or control of a record that contains personal information shall ensure:
(a) that the record is protected, by such security safeguards as it is reasonable in the circumstances to take, against loss, against unauthorised access, use, modification or disclosure, and against other misuse; and
(b) that if it is necessary for the record to be given to a person in connection with the provision of a service to the record-keeper, everything reasonably within the power of the record-keeper is done to prevent unauthorised use or disclosure of information contained in the record.
These safeguards could also be addressed in guidelines for the storage and security of information kept on the register.
54. The Committee also notes that it will be necessary to comply with Principle 2 which provides:
Where :
(a) a collector collects personal information for inclusion in a record or in a generally available publication; and
(b) the information is solicited by the collector from the individual concerned;
the collector shall take such steps (if any) as are, in the circumstances reasonable to ensure that, before the information is collected or, if that is not practicable, as soon as practicable after the information is collected, the individual concerned is generally aware of :
(c) the purpose for which the information is being collected;
(d) if the collection of the information is authorised or required by or under law - the fact that the collection of the information is so authorised or required; and
(e) any person to whom, or any body or agency to which, it is the collector's usual practice to disclose personal information of the kind so collected, and (if known by the collector) any person to whom, or any body or agency to which, it is the usual practice of that first-mentioned person, body or agency to pass on that information.
55. The Committee has been advised that this principle would be complied with by sending a notice to people whose names are entered upon the Registers, including a statement along the following lines:
"This information is being collected for the administration of incidents arising from violations involving children's safety. The source of authority for the collection of this information is the Children's Services Act. The information will be recorded and may be disclosed at the discretion of the Registrar (the Executive Director of the Family Services Branch). Appeals can be made to the Administrative Appeals Tribunal for removal of information from the record or amendment of the record."
Alternatively, the person could be personally informed and then this could be noted on a file, ideally with both people signing the file note.
Features of Central Registers
State NSW Vic SA Qld Tas NT
Notifications (unsubstantiated) 2yrs Yes Yes Yes Yes
Notifications (substantiated) 5yrs 1-5yrs Yes Yes Yes Yes
Removed when child >18 Yes
Child's name Yes Yes Yes Yes Yes Yes
Offender's name Yes Yes Yes Yes Yes
56. NSW has had mandatory reporting for some professionals since 1987. The Department of Community Services is responsible for child protection in NSW.
57. The Crimes (Public Justice) Amendment Act 1990 (NSW) abolished the common law action of misprision of felony (along with a number of other common law offences). The crime was replaced by the statutory offence of concealing a serious offence for benefit. The common law is no longer used in this area.
58. The position in NSW concerning accomplices and concealing knowledge is similar to that noted above in relation to the ACT (as, indeed, it is in other Australian jurisdictions). The Crimes (Public Justice) Amendment Act 1990 introduced the statutory offence of concealing a serious offence for benefit, as just noted.
59. The NSW Children (Care and Protection) Act 1987 deals with voluntary and mandatory reporting in NSW. The Act is administered by the Department of Community Services (which is managed by the Director-General).
60. Section 22(1) of the NSW Act deals with voluntary reporting. It is similar to section 103(1) of the ACT Children's Services Act 1986. The Act permits any person who forms the belief upon reasonable grounds that a child who is under the age of 16 years and who has been, or is in danger of being, abused or who is a child in need of care, to notify the Director-General of that belief and the grounds therefor, either orally or in writing.
61. Section 22(2) provides that medical practitioners must report where the practitioner suspects that a child who is under the age of 16 years has been abused (whether the abuse consisted of sexual assault or any other form of abuse). Section 22(6) provides that a person who fails to comply with subsection (4) is guilty of an offence.
62. Upon being required to report, the medical practitioner must notify the Director-General of details of identification of the child and the grounds of the belief.
63. Section 22(3) provides that prescribed professionals (not a Barrister or Solicitor) must report where the professional suspects that a child who is under the age of 16 years has been sexually assaulted. Section 22(6) provides that a person who fails to comply with subsection (4) is guilty of an offence. Regulations under the Act subsequently included the following professions:
. teachers at schools and pre-schools;
. school counsellors; and
. school social workers
64. Upon being required to report, the professional must provide the Director-General with details of identification of the child and the grounds of the belief.
65. Where a report is made, the Director-General may take such action as he considers appropriate if the child may have been, or is in danger of being, abused or is in need of care. Action to be taken may include involvement of the police.
66. When a report is made, the Department of Community Services assigns the child a priority rating:
. immediate investigation (where the child is in immediate danger of abuse)
. investigation within 2 days
67. Section 22(8) gives civil and criminal immunity to a person making a notification to the Director-General and is in similar terms to the ACT Children's Services Act s 105(1).
68. Details of the report are entered in a central child abuse register. Substantiated notifications remain on the register for 5 years or until the child turns 18 years of age. Unsubstantiated notifications are removed after 2 years.
69. The Queensland Children's Services Act 1965 deals with child protection in Queensland. The Act is administered by the Department of Family Services and Aboriginal and Islander Affairs. However, this Act makes no provision for mandatory reporting of child abuse.
70. It is under Queensland's Health Act 1937 that medical practitioners are required to report abuse. Section 76K(1) of that Act provides that:
A medical practitioner who suspects on reasonable grounds the maltreatment or neglect of a child in such a manner as to subject or be likely to subject a child to unnecessary injury, suffering or danger shall, within 24 hours after first suspecting, notify by the most expeditious means available to him a person authorised by the Director-General by regulation to be so notified.
71. Medical practitioners are given specific assistance about procedures to follow in making a notification.[11] Practitioners are given useful advice about avoiding confrontation with parents (on the grounds that forcing a confession is generally unhelpful and may make future counselling extremely difficult). The need to observe general medical training is emphasised. In particular, practitioners are reminded to:
. take a careful history from the child and carer (or parent);
. perform a thorough physical examination;
. keep careful records including accurate descriptions of any injuries and verbatim records of a child's statement; and
. notify an authorised person, that is, a representative from the Department of Health (usually a Doctor), from Family Services or the Queensland police.
72. Under the Queensland guidelines hospital admission is recommended in certain situations:
. to undertake further investigations (including the exclusion of organic disease);
. to provide consultative opinions about the child;
. to provide an immediate place of safety; and
. to provide for family assessment and support.
73. Specific guidelines are provided where sexual abuse is suspected. The need for assessment by a practitioner experienced in such field is emphasised. Caution is urged about allowing a child to return into a possible abusive situation.
74. Where a medical practitioner makes a report of a child suspected of being maltreated or neglected, it may be referred to a small interdisciplinary team which co-ordinates further investigation. The Queensland interdisciplinary teams (called SCAN teams) consist of a representative of the Department of Family Services, an authorised medical practitioner (that is, a doctor authorised by the Director-General of Health under the Health Act) and a representative of the police. The responsibilities of each team member are carefully delineated and are considered effective agents for the development and implementation of case management plans for children.
The Family Services Department is responsible for:
. initial investigation and crisis intervention;
. ensuring follow-up of the child and family; and
. providing coordinated support services.
The medical practitioner is responsible for:
. medical examinations and assessments;
. specialist medical advice; and
. liaising with the child's general practitioner.
The police officer is responsible for:
. investigation, especially where serious harm has been inflicted on the child;
. charging the perpetrator criminally; and
. taking protective action in the Children's Court where necessary.
75. Whilst reporting is not mandatory for other professionals nor members of the community, guidelines have been prepared for reports.
76. Medical practitioners are protected against liability under section 76K of the Health Act. Although there is no specific protection for voluntary reports under the Children's Services Act 1937, the secrecy provisions of this Act are used to protect the identity of the informant. The secrecy provisions exempt the identity of the informant from a Freedom of Information request but cannot be relied on in criminal proceedings.
77. Details of the report are entered onto a central child abuse register, as well as the outcome of each investigation. All notifications remain on the register indefinitely, although this is being reviewed. The recognised flaw in the recording is the lack of follow up when an offender goes to Court. Where the abuse is substantial details of rs. \par \par 244.\tab Section 103(2) imposes a reporting obligation on those members of the community who are most likely to come across child abuse in the course of their working life. Because of their training, education and experience, they are in an ideal position to correctly identify an abusive situation. The obligation to report imposed by section 103(2) means that they do not have to grapple with the dilemma of whether or not to report. \par \par 245.\tab There can be no argument thn is required to be made to the Secretary of the Department of Health and Community Services. It is mandatory to notify where a person believes on reasonable grounds that a child is in need of protection as a result of physical injury or sexual abuse, or the risk of these occurring, (sections 63 and 64).
80. Section 64 sets out the mandated persons. These include:
. medical practitioners, nurses, psychologists
. school teachers and principals
. operators, owners and professional employees of children's services centres, (including kindergartens)
. social workers, youth workers and welfare workers
. police, parole and probation officers.
81. Victoria intends to introduce a staged process of implementation to allow professional education to be undertaken. Phase one which applies to doctors, nurses and police is now in place. It is hoped that teachers and principals will be mandated by early 1994.
82. Voluntary reporting existed under the Children and Young Persons Act which contains specific protection from civil liability.
84. The South Australian Community Welfare Act 1972 and the Children's Protection and Young Offenders Act 1979 deals with child protection in South Australia. The Acts are administered by the Department of Family and Community Service. The South Australian Police manage prosecutions and also play a significant role in the education of community groups and professionals about child abuse.
85. Under section 91(2) of the Community Welfare Act 1972 reporting of child abuse where there is a reasonable suspicion of the maltreatment or neglect of a child is mandatory for a range of professionals, including:
. medical practitioners, dentists, enrolled nurses, social workers and pharmacists;
. police and probation officers;
. teachers; and
. voluntary workers providing children's services.
86. Detailed guidelines have been prepared for training both trainers and those professionals who are in the front line. When a notification is made to the Department of Family and Community Service, the notification may be considered by an interdisciplinary panel (representing welfare, early childhood health, police, education and medical fields). The Department has produced detailed guidelines and educational material for professionals who might be required to report abuse cases. However there is some concern that the size of the interdisciplinary groups may hinder the development and implementation of effective case management plans.
87. Section 91(5) extends protection from civil liability to persons acting in good faith and in compliance with the provisions of section 91.
88. Details of the report are entered onto a central child abuse register. Substantiated notifications remain on the register for 5 years or during the minority of the child. Other notifications are removed after 2 years.
89. The Northern Territory Community Welfare Act 1983 deals with child protection in the Northern Territory. The Department of Health and Community Services is responsible for child protection in the Northern Territory.
90. Mandatory reporting was introduced in the Northern Territory under sections 13 and 14 of the Community Welfare Act 1983. Section 13 has the effect of imposing an obligation on police who become aware of child abuse to report it to the Department of Health and Community Services. Section 14(1) obliges anyone who believes on reasonable grounds that a child has or is being abused to report it to the Department or to the police. There is a penalty of $500 for breaching this provision. Section 14(2) gives legal immunity to people who make complaints where they have acted in good faith, and provides that a report of child abuse shall not be held to be a breach of confidence or of professional obligations.
91. All government officers in the child protection area are on-line to the central register. All reports which come in automatically go on to the register, as well as the outcome of the investigation of the reports. Only these government officers have direct access to the information on the computer system. The police can make inquiries about particular people and the Department will give them that information. No other agency is informed about what is on the register.
92. The Western Australian Child Welfare Act 1947 deals with child protection in Western Australia. The Act is administered by the Department of Community Services.
93. There is no mandatory reporting in Western Australia. Authorities rely heavily on voluntary reports of neglect or mistreatment. There are reciprocal policies and procedures amongst a number of agencies to deal with reports. In general, abuse confined to family members is handled by Departmental officers on a priority system (not unlike that in NSW) while abuse involving outside persons triggers police intervention.
94. There is no central register. However, a data collection system is maintained by the Department of Community Development noting details of allegations made and outcomes. The perpetrator's details are included where the abuse has been substantiated. The information is held indefinitely.
95. Protection is extended to anyone who reports under the Child Welfare Act.
96. The Tasmanian Child Protection Act 1974 deals with child protection in Tasmania. The Act is administered by the Department of Community Services.
97. Under the Child Protection Act 1974 reporting of child abuse where there is a reasonable suspicion of the maltreatment or neglect of a child is mandatory for a range of professionals, including:
. medical practitioners, registered nurses and social workers;
. probation officers; and
. teachers.
98. Details of the report are entered onto a central child abuse register. All notifications remain on the register indefinitely.
99. There has been much controversy and debate regarding mandatory reporting of child abuse, and this is reflected in various government and non-government reports. Two key reports in this area have been the Brotherhood of St Laurence Report and the Victorian Law Reform Commissions Report. A comparison of these reports reflects the divergence and polarisation of views which have also been reflected in the submissions to the Committee.
100. The 1988 Brotherhood of St Laurence's Report Mandatory Reporting and Child Abuse suggested that mandatory reporting is not an efficient or effective means of detecting child abuse.
101. The Report cites United States' and NSW experience with mandatory reporting showing big increases in notifications with large rates of unsubstantiation. There was also a big increase in protective services and the number of children placed inappropriately in substitute care in the United States. There is also evidence that poor families are more affected by mandatory reporting, because of the links between social and economic status and physical abuse and neglect.
102. Concerning co-operation by professional groups with mandatory reporting, the Report states that in the United States, in spite of mandatory reporting, there is still substantial under-reporting of child abuse by professionals. Under-reporting is associated with the professionals' concern about their relationship with their clients and their belief that such matters are better handled privately.
103. The Report comments that two Victorian studies suggest that the introduction of mandatory reporting may have little impact on professional reporting behaviour. One of these studies agrees with a South Australian study in identifying the factors which discourage reporting, namely, doubts about the validity of evidence and fears of further damage to the family. In both studies, almost half the respondents had negative perceptions of state government protective services.
104. The Report concludes that these findings demonstrate that making reporting mandatory does not guarantee professional co-operation in reporting child abuse. It suggests that a more productive way of gaining maximum co-operation might be an education program which addresses the following factors:
. clarification of legal immunity provisions;
. explanation of how child protection services work;
. re-assurance that most (reported) cases do not go to court or result in substitute care; and
. re-assurance that protective intervention has positive outcomes.
105. The VLRC Report Sexual Offences against Children (1988) refers to an independent analysis of the data which does not support the Brotherhood of St Laurence's claims. In particular the Commission found:
. a steep increase in notifications in NSW from 1981 which they attributed mainly to publicity campaigns and training courses for mandated professionals;
. the unsubstantiated rate of reporting does not increase dramatically (eg in NSW in 1987 abuse was confirmed in nearly 60% of cases assessed by Departmental officers); and
. there was a steep rise in the number of reports from teachers when mandatory reporting was introduced in NSW in 1987. However, the substantiation rate remained constant at about 60%.
106. The Commission concluded that:
. with adequate resources, mandatory reporting is an efficient and effective mechanism for the detection of child abuse;
. however, mandatory reporting should not be introduced unless adequate staffing resources and administrative systems are available to deal with the expected increase in notifications; and
. targeted education programs are needed in addition to mandatory reporting.
107. The different conclusions reached by the Brotherhood of St Laurence and the Victorian Law Reform Commission Reports is indicative of the debate relating to the introduction of mandatory reporting. Submissions made to the Community Law Reform Committee displayed a similar variation of views.
The Committee recommends that active steps be taken to ensure that the states and territories establish complementary legislation and practices. The Committee recommends that interstate orders and practices should be recognised by ACT law to ensure continuity of protection of children and consistent treatment of perpetrators when they cross into different jurisdictions.
The Committee recommends that active steps be taken to ensure that all Australian jurisdictions will exchange background information in cases where a child has moved jurisdictions and there are allegations of abuse.
The Committee recommends the free exchange of statistics between states and territories, with standardised procedures for collection and analysis of statistics. The Committee considers that the National Child Protection Council would be an appropriate body to coordinate this.
The Committee recommends that officers of the Family Services Branch of the ACT's Housing and Community Services Bureau perform an advisory function for other agencies and individuals who wish to "sound out" particular cases.
The Committee recommends that irrespective of any decision regarding mandatory reporting, a central information register of notifications of child abuse be established with regard being had to access and privacy issues.
The Committee considers that there should be a register of perpetrators where allegations of abuse have been substantiated.
guile and no desire to impress. They do not embroider the evidence they give and their perceived 'incompetence' is because of the questions asked. Simple questions leading the child along the path of the evidence which she or he can give would be enough to keep the narrative going without any impression of coaching. Thus the emphasis would be on telling the story rather than upon the answering of questioċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċċ