This content may contain material that is confronting and disturbing, and which may cause sadness or distress.

Further support for survivors of past abuse, violence or childhood trauma is available.

Find and Connect Support Services (External link) (freecall M-F 9am-5pm) 1800 161 109

Lifeline (External link) 13 11 14

CASA (Victorian Centres Against Sexual Assault) (External link) and Sexual Assault Crisis Line (External link) (freecall M-F 5pm-9am and weekends) 1800 806 292

In July 2018 the Victorian Government tabled in Parliament its response to the recommendations of the Royal Commission into Institutional Child Sexual Abuse.

The Royal Commission made 409 recommendations in total, including more than 50 recommendations requiring governments to work together:

The Victorian Government Response included a response to all 409 recommendations and did not reject any recommendations.

In summary, at the time of tabling, the Victorian Government:

  • accepted 128 recommendations where all elements of the recommendation were supported
  • accepted in principle 165 recommendations where the Victorian Government supported the intent or merit of the recommendation, but did not necessarily support the method for achieving the policy
  • stated that Victoria would give further consideration to 24 recommendations where further analysis was required for the Victorian Government to determine its position
  • noted 92 recommendations where responsibility for the recommendation did not sit with the Victorian Government.

As a part of this process the Victorian Government also committed to report annually on the progress of the work. The annual report for 2018 can be read here.

Victorian Government response to the recommendations from the Royal Commission into Institutional Responses to Child Sexual Abuse

Making institutions child safe

Volume number and topic Recommendation Response

6.1 

Creating child safe communities through prevention

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

6.2 

Creating child safe communities through prevention

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

a. social marketing campaigns to raise general community awareness and increase knowledge of child sexual abuse, to change problematic attitudes and behaviour relating to such abuse, and to promote and direct people to related prevention initiatives, information and help-seeking services
b. prevention education delivered through preschool, school and other community institutional settings that aims to increase children’s knowledge of child sexual abuse and build practical skills to assist in strengthening self-protective skills and strategies. The education should be integrated into existing school curricula and link with related areas such as respectful relationships education and sexuality education. It should be
mandatory for all preschools and schools
c. prevention education for parents delivered through day care, preschool, school, sport and recreational settings, and other institutional and community settings. The education should aim to increase knowledge of child sexual abuse and its
impacts, and build skills to help reduce the risks of child sexual abuse.
d. online safety education for children, delivered via schools. Ministers for education, through the Council of Australian Governments, should establish a nationally consistent curriculum for online safety education in schools. The Office of the eSafety Commissioner should be consulted on the design of the curriculum and contribute to the development of course content and approaches to delivery (see Recommendation 6.19)
e. online safety education for parents and other community members to better support children’s safety online. Building on their current work, the Office of the eSafety Commissioner should oversee the delivery of this education nationally
(see Recommendation 6.20)
f. prevention education for tertiary students studying university, technical and further education, and vocational education and training courses before entering child related occupations. This should aim to increase awareness and understanding of the
prevention of child sexual abuse and potentially harmful sexual behaviours in children
g. information and help-seeking services to support people who are concerned they may be at risk of sexually abusing children. The design of these services should be informed by the Stop It Now! model implemented in Ireland and the United Kingdom
h. information and help seeking services for parents and other members of the community concerned that:

i. an adult they know may be at risk of perpetrating child sexual abuse
ii. a child or young person they know may be at risk of sexual abuse or harm
iii. a child they know may be displaying harmful sexual behaviours.

Noted

6.3 

Creating child safe communities through prevention

The design and implementation of these initiatives should consider:

a. aligning with and linking to national strategies for preventing violence against adults and children, and strategies for addressing other forms of child maltreatment
b. tailoring and targeting initiatives to reach, engage and provide access to all communities, including children, Aboriginal and Torres Strait Islander communities, culturally and linguistically diverse communities, people with disability, and regional and remote communities
c. involving children and young people in the strategic development, design, implementation and evaluation of initiatives
d. using research and evaluation to:

i.  build the evidence base for using best practices to prevent child sexual abuse and harmful sexual behaviours in children
ii. guide the development and refinement of interventions, including the piloting and testing of initiatives before they are implemented.

Noted

6.4 

What makes institutions safer for children

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

6.5 

What makes institutions safer for children

The Child Safe Standards are:

  1. Child safety is embedded in institutional leadership, governance and culture
  2. Children participate in decisions affecting them and are taken seriously
  3. Families and communities are informed and involved
  4. Equity is upheld and diverse needs are taken into account
  5. People working with children are suitable and supported
  6. Processes to respond to complaints of child sexual abuse are child focused
  7. Staff are equipped with the knowledge, skills and awareness to keep children safe through continual education and training
  8. Physical and online environments minimise the opportunity for abuse to occur
  9. Implementation of the Child Safe Standards is continuously reviewed and improved
  10. Policies and procedures document how the institution is child safe.
Accept in principle

6.6 

What makes institutions safer for children

Institutions should be guided by the following core components when implementing the Child Safe Standards:

Standard 1: Child safety is embedded in institutional leadership, governance and culture

a. The institution publicly commits to child safety and leaders champion a child safe culture.
b. Child safety is a shared responsibility at all levels of the institution.
c. Risk management strategies focus on preventing, identifying and mitigating risks to children.
d. Staff and volunteers comply with a code of conduct that sets clear behavioural standards towards children.
e. Staff and volunteers understand their obligations on information sharing and recordkeeping.

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

a. Children are able to express their views and are provided opportunities to participate in decisions that affect their lives.
b. The importance of friendships is recognised and support from peers is encouraged, helping children feel safe and be less isolated.
c. Children can access sexual abuse prevention programs and information.
d. Staff and volunteers are attuned to signs of harm and facilitate child-friendly ways for children to communicate and raise their concerns.

Standard 3: Families and communities are informed and involved

a. Families have the primary responsibility for the upbringing and development of their child and participate in decisions affecting their child.
b. The institution engages in open, two-way communication with families and communities about its child safety approach and relevant information is accessible.
c. Families and communities have a say in the institution’s policies and practices.
d. Families and communities are informed about the institution’s operations and governance.

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

a. The institution actively anticipates children’s diverse circumstances and responds effectively to those with additional vulnerabilities.
b. All children have access to information, support and complaints processes.
c. The institution pays particular attention to the needs of Aboriginal and Torres Strait Islander children, children with disability, and children from culturally and linguistically diverse backgrounds.

Standard 5: People working with children are suitable and supported

a. Recruitment, including advertising and screening, emphasises child safety.
b. Relevant staff and volunteers have Working With Children Checks.
c. All staff and volunteers receive an appropriate induction and are aware of their child safety responsibilities, including reporting obligations.
d. Supervision and people management have a child safety focus.

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

a. The institution has a child-focused complaint handling system that is understood by children, staff, volunteers and families.
b. The institution has an effective complaint handling policy and procedure which clearly outline roles and responsibilities, approaches to dealing with different types of complaints and obligations to act and report.
c. Complaints are taken seriously, responded to promptly and thoroughly, and reporting, privacy and employment law obligations are met.

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

a. Relevant staff and volunteers receive training on the nature and indicators of child maltreatment, particularly institutional child sexual abuse.
b. Staff and volunteers receive training on the institution’s child safe practices and child protection.
c. Relevant staff and volunteers are supported to develop practical skills in protecting children and responding to disclosures.

Standard 8: Physical and online environments minimise the opportunity for abuse to occur

a. Risks in the online and physical environments are identified and mitigated without compromising a child’s right to privacy and healthy development.
b. The online environment is used in accordance with the institution’s code of conduct and relevant policies.

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

a. The institution regularly reviews and improves child safe practices.
b. The institution analyses complaints to identify causes and systemic failures to inform continuous improvement.

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

a. Policies and procedures address all Child Safe Standards.
b. Policies and procedures are accessible and easy to understand.
c. Best practice models and stakeholder consultation inform the development of policies and procedures.
d. Leaders champion and model compliance with policies and procedures.
e. Staff understand and implement the policies and procedures.

For the full text of this recommendation see the Final Report.

Accept

6.7 

Improving child safe approaches

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

6.8 

Improving child safe approaches

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

6.9 

Improving child safe approaches

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

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

Accept in principle

6.10 

Improving child safe approaches

State and territory governments should ensure that:
a. an independent oversight body in each state and territory is responsible for monitoring and enforcing the Child Safe Standards. Where appropriate, this should be an existing body.
b. the independent oversight body is able to delegate responsibility for monitoring and enforcing the Child Safe Standards to another state or territory government body, such as a sector regulator.
c. regulators take a responsive and risk-based approach when monitoring compliance with the Child Safe Standards and, where possible, utilise existing regulatory frameworks to monitor and enforce the Child Safe Standards
Accept in principle

6.11 

Improving child safe approaches

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

a. provide advice and information on the Child Safe Standards to institutions and the community
b. collect, analyse and publish data on the child safe approach in that jurisdiction and provide that data to the proposed National Office for Child Safety
c. partner with peak bodies, professional standards bodies and/or sector leaders to work with institutions to enhance the safety of children
d. provide, promote or support education and training on the Child Safe Standards to build the capacity of institutions to be child safe
e. coordinate ongoing information exchange between oversight bodies relating to institutions’ compliance with the Child Safe Standards.

Accept

6.12 

Improving child safe approaches

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

a. developing child safe messages in local government venues, grounds and facilities
b. assisting local institutions to access online child safe resources
c. providing child safety information and support to local institutions on a needs basis
d. supporting local institutions to work collaboratively with key services to ensure child safe approaches are culturally safe, disability aware and appropriate for children from diverse backgrounds.

Accept in principle

6.13 

Improving child safe approaches

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

6.14

Improving child safe approaches

The Australian Government should be responsible for the following functions:

a. evaluate, publicly report on, and drive the continuous improvement of the implementation of the Child Safe Standards and their outcomes
b. coordinate the direct input of children and young people into the evaluation and continuous improvement of the Child Safe Standards
c. coordinate national capacity building and support initiatives and opportunities for collaboration between jurisdictions and institutions
d. develop and promote national strategies to raise awareness and drive cultural change in institutions and the community to support child safety.

Noted
6.15 Improving child safe approaches

The Australian Government should develop a new National Framework for Child Safety in collaboration with state and territory governments. The Framework should:

a. commit governments to improving the safety of all children by implementing long-term child safety initiatives, with appropriate resources, and holding them to account
b. be endorsed by the Council of Australian Governments and overseen by a joint ministerial body
c. commence after the expiration of the current National Framework for Protecting Australia’s Children, no later than 2020
d. cover broader child safety issues, as well as specific initiatives to better prevent and respond to institutional child sexual abuse including initiatives recommended by the Royal Commission
e. include links to other related policy frameworks.

Accept in principle

6.16 

Improving child safe approaches

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

6.17 

Improving child safe approaches

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

a. develop and lead the coordination of the proposed National Framework for Child Safety, including national coordination of the Child Safe Standards
b. collaborate with state and territory governments to lead capacity building and continuous improvement of child safe initiatives through resource development, best practice material and evaluation
c. promote the participation and empowerment of children and young people in the National Framework and child safe initiatives
d. perform the Australian Government’s Child Safe Standards functions as set out at Recommendation 6.15
e. lead the community prevention initiatives as set out in Recommendation 6.2.

Accept in principle

6.18 

Improving child safe approaches

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

6.19 

Preventing and responding to online child sexual abuse in institutions

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

a. be appropriately staged from Foundation year to Year 12 and be linked with related content areas to build behavioural skills as well as technical knowledge to support a positive and safe online culture
b. involve children and young people in the design, delivery and piloting of new online safety education, and update content annually to reflect evolving technologies, online behaviours and evidence of international best practice approaches
c. be tailored and delivered in ways that allow all Australian children and young people to reach, access and engage with online safety education, including vulnerable groups that may not access or engage with the school system.

Accept in principle

6.20 

Preventing and responding to online child sexual abuse in institutions

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

a. keep the community up to date on emerging risks and opportunities for safeguarding children online
b. build community understanding of responsibilities, legalities and the ethics of children’s interactions online
c. encourage proactive responses from the community to make it ‘everybody’s business’ to intervene early, provide support or report issues when concerns for children’s safety online are raised
d. increase public awareness of how to access advice and support when online incidents occur.

Accept in principle

6.21 

Preventing and responding to online child sexual abuse in institutions

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

a. tertiary students studying university, technical and further education, and vocational education and training courses, before entering child-related occupations; and could be provided as a component of a broader program of child sexual abuse prevention
education (see Recommendation 6.2)
b. staff and volunteers in schools and other child-related organisations, and could build on the existing web-based learning programs of the Office of the eSafety Commissioner

Accept in principle

6.22

Preventing and responding to online child sexual abuse in institutions

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

The school-based online safety framework and resources should be designed to:

a. support schools in developing, implementing and reviewing their online codes of conduct, policies and procedures to help create an online culture that is safe for children
b. guide schools in their response to specific online incidents, in coordination with other agencies. This should include guidance in complaint handling, understanding reporting requirements, supporting victims to minimise further harm, and preserving digital evidence to support criminal justice processes.

Accept in principle

6.23

Preventing and responding to online child sexual abuse in institutions

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

a. adopting the promising model of the Queensland Department of Education and Training’s Cyber Safety and Reputation Management Unit, which provides advice and a centralised coordination function for schools, working in partnership with relevant
entities to remove offensive online content and address other issues
b. strengthening or re-establishing multi-stakeholder forums and case-management for effective joint responses involving all relevant agencies, such as police, education, health and child protection.

Accept in principle

6.24

Preventing and responding to online child sexual abuse in institutions

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

a. establishing regular meetings of the heads of cybersafety units in all Australian police departments to ensure a consistent capacity to respond to emerging incidents and share best practice approaches, tools and resources
b. convening regular forums and conferences to bring together law enforcement, government, the technology industry, the community sector and other relevant stakeholders to discuss emerging issues, set agendas and identify solutions to online child sexual abuse and exploitation
c. building capability across police departments, through in-service training for: 

i. frontline police officers to respond to public complaints relating to issues of online child sexual abuse or harmful sexual behaviours
ii. police officers who liaise with young people in school and community settings.

Noted

Improving institutional responding and reporting

Volume number and topic Recommendation Response

7.1

Reporting institutional child sexual abuse

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

7.2

Reporting institutional child sexual abuse

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

7.3

Reporting institutional child sexual abuse

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

a. out-of-home care workers (excluding foster and kinship/relative carers)
b. youth justice workers
c. early childhood workers
d. registered psychologists and school counsellors
e. people in religious ministry.

Accept in principle

7.4

Reporting institutional child sexual abuse

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

7.5

Reporting institutional child sexual abuse

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

a. mandatory and voluntary reports to child protection authorities under child protection legislation
b. notifications concerning child abuse under the Health Practitioner Regulation National Law.

Accept in principle

7.6

Reporting institutional child sexual abuse

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

a. child sexual abuse within that institution or
b. the response of that institution to child sexual abuse.

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

Accept

7.7

Improving institutional responses to complaints

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

a. making a complaint
b. responding to a complaint
c. investigating a complaint
d. providing support and assistance
e. achieving systemic improvements following a complaint.

Accept

7.8

Improving institutional responses to complaints

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

a. outlines behaviours towards children that the institution considers unacceptable, including concerning conduct, misconduct or criminal conduct
b. includes a specific requirement to report any concerns, breaches or suspected breaches of the code to a person responsible for handling complaints in the institution or to an external authority when required by law and/or the institution’s complaint handling policy
c. outlines the protections available to individuals who make complaints or reports in good faith to any institution engaging in child-related work (see Recommendation 7.6 on reporter protections).

Accept

7.9

Oversight of institutional complaint handling

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

7.10

Oversight of institutional complaint handling

Reportable conduct schemes should provide for:

a. an independent oversight body
b. obligatory reporting by heads of institutions
c. a definition of reportable conduct that covers any sexual offence, or sexual misconduct, committed against, with, or in the presence of, a child
d. a definition of reportable conduct that includes the historical conduct of a current employee
e. a definition of employee that covers paid employees, volunteers and contractors
f. protection for persons who make reports in good faith
g. oversight body powers and functions that include:

i. scrutinising institutional systems for preventing reportable conduct and for handling and responding to reportable allegations, or reportable convictions
ii. monitoring the progress of investigations and the handling of complaints by institutions
iii. conducting, on its own motion, investigations concerning any reportable conduct of which it has been notified or otherwise becomes aware
iv. power to exempt any class or kind of conduct from being reportable conduct
v. capacity building and practice development, through the provision of training, education and guidance to institutions
vi. public reporting, including annual reporting on the operation of the scheme and trends in reports and investigations, and the power to make special reports to parliaments.

Accept in principle

7.11

Oversight of institutional complaint handling

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

7.12

Oversight of institutional complaint handling

Reportable conduct schemes should cover institutions that:

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

At a minimum, these should include institutions that provide:

a. accommodation and residential services for children, including:

i. housing or homelessness services that provide overnight beds for children and young people
ii. providers of overnight camps

b. activities or services of any kind, under the auspices of a particular religious denomination or faith, through which adults have contact with children
c. childcare services, including:

i. approved education and care services under the Education and Care Services National Law
ii. approved occasional care services

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

i. child protection authorities and agencies
ii. providers of foster care, kinship or relative care
iii. providers of family group homes
iv. providers of residential care

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

i. disability service providers under state and territory legislation
ii. registered providers of supports under the National Disability Insurance Scheme

f. education services for children, including:

i. government and non-government schools
ii. TAFEs and other institutions registered to provide senior secondary education or training, courses for overseas students or student exchange programs

g. health services for children, including:

i. government health departments and agencies, and statutory corporations
ii. public and private hospitals
iii. providers of mental health and drug or alcohol treatment services that have inpatient beds for children and young people

h. justice and detention services for children, including:

i. youth detention centres
ii. immigration detention facilities.

Accept in principle

Record keeping and information sharing

Volume number and topic Recommendation Response

8.1

Records and recordkeeping

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

The Victorian Government:

accepts the recommendation as it applies to Victorian Government institutions; and

accepts the recommendation in principle as it applies to non-government institutions.

The Victorian Government will encourage non-government institutions to comply with this record retention standards  and will consider whether it is necessary to introduce additional regulatory measures to bring about greater compliance. The Victorian Government also supports a consistent approach across  all Australian jurisdictions.   

8.2

Records and recordkeeping

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

8.3

Records and recordkeeping

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

8.4

Records and recordkeeping

All institutions that engage in child-related work should implement the following principles for records and recordkeeping, to a level that responds to the risk of child sexual abuse occurring within the institution.

Principle 1: Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture. Institutions that care for or provide services to children must keep the best interests of the child uppermost in all aspects of their conduct, including recordkeeping. It is in the best interest of children that institutions foster a culture in which the creation and management of accurate records are integral parts of the institution’s operations and governance.

Principle 2: Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse. Institutions should ensure that records are created to document any identified incidents of grooming, inappropriate behaviour (including breaches of institutional codes of conduct) or child sexual abuse and all responses to such incidents. Records created by institutions should be clear, objective and thorough. They should be created at, or as close as possible to, the time the incidents occurred, and clearly show the author (whether individual or institutional) and the date created.

Principle 3: Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained in an indexed, logical and secure manner. Associated records should be collocated or cross-referenced to ensure that people using those records are aware of all relevant information.

Principle 4: Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy. Records relevant to child safety and wellbeing, including child sexual abuse, must only be destroyed in accordance with records disposal schedules or published institutional policies. Records relevant to child sexual abuse should be subject to minimum retention periods that allow for delayed disclosure of abuse by victims, and take account of limitation periods for civil actions for child sexual abuse.

Principle 5: Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent. Individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted. Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated, and to seek review or appeal of decisions refusing access, amendment or annotation.

The Victorian Government:

accepts the recommendation as it applies to Victorian Government institutions; and

accepts the recommendation in principle as it applies to non-government institutions.

The Victorian Government will encourage non-government institutions to comply with this record retention standards  and will consider whether it is necessary to introduce additional regulatory measures to bring about greater compliance. The Victorian Government also supports a consistent approach across  all Australian jurisdictions.   

8.5

Records and recordkeeping

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

8.6

Improving information sharing across sectors

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

8.7

Improving information sharing across sectors

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

a. enable direct exchange of relevant information between a range of prescribed bodies, including service providers, government and non-government agencies, law enforcement agencies, and regulatory and oversight bodies, which have responsibilities related to children’s safety and wellbeing
b. permit prescribed bodies to provide relevant information to other prescribed bodies without a request, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts
c. require prescribed bodies to share relevant information on request from other prescribed bodies, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts, subject to limited exceptions
d. explicitly prioritise children’s safety and wellbeing and override laws that might otherwise prohibit or restrict disclosure of information to prevent, identify and respond to child sexual abuse in institutional contexts
e. provide safeguards and other measures for oversight and accountability to prevent unauthorised sharing and improper use of information obtained under the information exchange scheme
f. require prescribed bodies to provide adversely affected persons with an opportunity to respond to untested or unsubstantiated allegations, where such information is received under the information exchange scheme, prior to taking adverse action against such persons, except where to do so could place another person at risk of harm.

Accept in principle

8.8

Improving information sharing across sectors

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

a. impediments to information sharing due to limited understanding of applicable laws
b. unauthorised sharing and improper use of information.

Accept in principle

8.9

Improving information sharing across sectors

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

a. the person’s former names and aliases
b. the details of former and current employers
c. where relating to allegations or incidents of child sexual abuse:

i. current and past disciplinary actions, such as conditions on, suspension of, and cancellation of registration
ii. grounds for current and past disciplinary actions
iii. pending investigations
iv. findings or outcomes of investigations where allegations have been substantiated
v. resignation or dismissal from employment.

Accept in principle

8.10

Improving information sharing across sectors

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

a. teacher registration authorities in other states and territories
b. teachers’ employers.

Accept in principle

8.11

Improving information sharing across sectors

The COAG Education Council should consider the need for nationally consistent provisions

a. in state and territory teacher registration laws or
b. in administrative arrangements, based on legislative authorisation

for information sharing under our recommended information exchange scheme

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

a. disciplinary actions, such as conditions or restrictions on, suspension of, and cancellation of registration, including with notification of grounds
b. investigations into conduct, or into allegations or complaints
c. findings or outcomes of investigations
d. resignation or dismissal from employment.

Accept in principle

8.12

Improving information sharing across sectors

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

8.13

Improving information sharing across sectors

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

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

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

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

Accept in principle

8.14

Improving information sharing across sectors

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

a. provide that the principal (or other authorised information sharer) at the student’s previous school is required to share information with the new school in the circumstances described in Recommendation 8.13 and 
b. apply to schools in government and non-government systems.

Accept in principle

8.15

Improving information sharing across sectors

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

a. information provided to the new school should be proportionate to its need for that information to assist it in meeting the student’s safety and wellbeing needs, and those of other students at the school
b. information should be exchanged between principals, or other authorised information sharers, and disseminated to other staff members on a need-to-know basis.

Accept in principle

8.16

Improving information sharing across sectors

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

8.17

Improving information sharing across sectors

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

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

i. foster carers
ii. relative/kinship carers
iii. residential care staff

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

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

Accept in principle

8.18

Improving information sharing across sectors

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

8.19

Improving information sharing across sectors

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

a. lodgement or grant of applications for authorisation
b. status of the minimum checks set out in Recommendation 12.6 as requirements for authorisation, indicating their outcomes as either satisfactory or unsatisfactory
c. withdrawal or refusal of applications for authorisation in circumstances of concern (including in relation to child sexual abuse)
d. cancellation or surrender of authorisation in circumstances of concern (including in relation to child sexual abuse)
e. previous or current association with an out-of-home care agency, whether by application for authorisation, assessment, grant of authorisation, or supervision
f. the date of reportable conduct allegations, and their status as either current, finalised with ongoing risk-related concerns, and/or requiring contact with the reportable conduct oversight body.

Accept in principle

8.20

Improving information sharing across sectors

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

a. record register information in minimal detail
b. record register information as a mandatory part of carer authorisation
c. update register information about authorised carers.

Accept

8.21

Improving information sharing across sectors

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

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

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

b. in the course of their assessment, authorisation, or supervision of carers, to:
   
i. seek further relevant information from other agencies or bodies, where register information indicates they hold, or may hold, additional information relevant to carer suitability, including reportable conduct information.

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

Accept in principle

8.22

Improving information sharing across sectors

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

a. agencies responsible for assessing, authorising or supervising carers
b. other agencies, including jurisdictional child protection agencies and regulatory and oversight bodies, with responsibilities related to the suitability of persons to be carers and the safety of children in out-of-home care

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

Accept in principle

8.23

Improving information sharing across sectors

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

Advocacy, support and therapeutic treatment services

Volume number and topic Recommendation Response

9.1

Dedicated community support services for victims and survivors

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

Funding and related agreements should require and enable these services to:

a. be trauma-informed and have an understanding of institutional child sexual abuse
b. be collaborative, available, accessible, acceptable and high quality
c. use case management and brokerage to coordinate and meet service needs
d. support and supervise peer-led support models.

Accept in principle

9.2

Dedicated community support services for victims and survivors

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

9.3

Dedicated community support services for victims and survivors

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

9.4

National service to navigate legal processes

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

Funding and related agreements should require and enable these services to be:

a. trauma-informed and have an understanding of institutional child sexual abuse
b. collaborative, available, accessible, acceptable and high quality.

Noted

9.5

National telephone helpline and website

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

a. be trauma-informed and have an understanding of institutional child sexual abuse
b. be collaborative, available, accessible, acceptable and high quality
c. provide telephone and online information and initial support for victims and survivors, including independent legal information and information about reporting to police
d. provide assisted referrals to advocacy and support and therapeutic treatment services.

Noted

9.6

Enhancing the capacity of specialist sexual assault services

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

a. be trauma-informed and have an understanding of institutional child sexual abuse
b. be collaborative, available, accessible, acceptable and high quality
c. use collaborative community development approaches
d. provide staff with supervision and professional development.

Accept in principle

9.7

Enhancing the capacity of specialist sexual assault services

Primary Health Networks, within their role to commission joined up local primary care services, should support sexual assault services to work collaboratively with key services such as disability-specific services, Aboriginal and Torres Strait Islander services, culturally and linguistically diverse services, youth justice, aged care and child and youth services to better meet the needs of victims and survivors. Accept in principle

9.8

Responsive mainstream services

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

9.9

National leadership to reduce stigma, promote help-seeking and support good practices

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

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

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

i. identify, translate and promote research in easily available and accessible formats for advocacy and support and therapeutic treatment practitioners      
ii. produce national training materials and best practice clinical resources
iii. partner with training organisations to conduct training and workforce development programs      
iv. influence national tertiary curricula to incorporate child sexual abuse and trauma-informed care
v. inform government policy making

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

Accept in principle

Children with harmful sexual behaviour

Volume and topic number Recommendation Response

10.1

A framework for improving responses

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

a. primary prevention strategies to educate family, community members, carers and professionals (including mandatory reporters) about preventing harmful sexual behaviours
b. secondary prevention strategies to ensure early intervention when harmful sexual behaviours are developing
c. tertiary intervention strategies to address harmful sexual behaviours.

Accept in principle

10.2

Improving assessment and therapeutic intervention

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

10.3

Improving assessment and therapeutic intervention

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

10.4

Improving assessment and therapeutic intervention

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

10.5

Improving assessment and therapeutic intervention

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

10.6

Strengthening the workforce

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

10.7

Improving evaluation

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

Contemporary out-of-home care

Volume number and topic Recommendations Response

12.1

Data collection and reporting

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

12.2

Data collection and reporting

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

a. data identifying children with disability, children from culturally and linguistically diverse backgrounds and Aboriginal and Torres Strait Islander children
b. the number of children who were the subject of a substantiated report of sexual abuse while in out-of-home care
c. the demographics of those children
d. the type of out-of-home care placement in which the abuse occurred
e. information about when the abuse occurred
f. information about who perpetrated the abuse, including their age and their relationship
to the victim, if known.

Accept in principle

12.3

Data collection and reporting

State and territory governments should agree on reporting definitions and data requirements to enable reporting in the Report on government services on outcome indicators for ‘improved health and wellbeing of the child’, ‘safe return home’ and ‘permanent care’. Accept in principle

12.4

Accreditation of out of home care service providers

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

a. incorporate compliance with the Child Safe Standards identified by the Royal Commission
b. extend accreditation requirements to both government and non-government out-of-home
care service providers.

Accept in principle

12.5

Accreditation of out of home care service providers

In each state and territory, an existing statutory body or office that is independent of the relevant child protection agency and out-of-home care service providers, for example a children’s guardian, should have responsibility for:

a. receiving, assessing and processing applications for accreditation of out-of-home care service providers
b. conducting audits of accredited out-of-home care service providers to ensure ongoing compliance with accreditation standards and conditions.

Accept in principle

12.6

Carer authorisation

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

a. community services checks of the prospective carer and any adult household members of home-based carers
b. documented risk management plans to address any risks identified through community services checks
c. at least annual review of risk management plans as part of carer reviews and more frequently as required.

For further consideration

12.7

Carer authorisation

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

12.8

Carer authorisation

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

a. better identify the strengths as well as the support and training needs of kinship/relative carers
b. ensure holistic approaches to supporting placements that are culturally safe
c. include appropriately resourced support plans.

Accept

12.9

Child sexual abuse education strategy

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

a. input from children in out-of-home care and care-leavers
b. comprehensive, age-appropriate and culture-appropriate education about sexuality and healthy relationships that is tailored to the needs of children in out-of-home care
c. resources tailored for children in care, for foster and kinship/relative carers, for residential care staff and for caseworkers
d. resources that can be adapted to the individual needs of children with disability and their carers.

Accept in principle

12.10

Creating a culture that supports disclosure and identification of child sexual abuse

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

a. provide appropriate support and mechanisms for children in out-of-home care to communicate, either verbally or through behaviour, their views, concerns and complaints
b. provide appropriate training and support to carers and caseworkers to ensure they hear and respond to children in out-of-home care, including ensuring children are involved in decisions about their lives
c. regularly consult with the children in their care as part of continuous improvement processes.

Accept

12.11

Strengthening the capacity of carers, staff and caseworkers to support children

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

12.12

Identifying, assessing and supporting children with harmful sexual behaviours

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

a. undertake professional assessments of the child with harmful sexual behaviours, including identifying their needs and appropriate supports and interventions to ensure their safety
b. establish case management and a package of support services
c. undertake careful placement matching that includes:

i. providing sufficient relevant information to the potential carer/s and residential care staff to ensure they are equipped to support the child, and additional training as necessary
ii. rigorously assessing potential threats to the safety of other children, including  the child’s siblings, in the placement

Accept in principle

12.13

Identifying, assessing and supporting children with harmful sexual behaviours

State and territory governments and out-of-home care service providers should provide advice, guidelines and ongoing professional development for all foster and kinship/relative carers and residential care staff about preventing and responding to the harmful sexual behaviours of some children in out-of-home care. Accept in princple

12.14

Preventing and responding to child sexual exploitation

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

a. identifying and disrupting activities that indicate risk of sexual exploitation
b. supporting agencies to engage with children in ways that encourage them to assist in the investigation and prosecution of sexual exploitation offences.

Accept in principle

12.15

Preventing and responding to child sexual exploitation

Child protection departments in all states and territories should adopt a nationally consistent definition for child sexual exploitation to enable the collection and reporting of data on sexual exploitation of children in out-of-home care as a form of child sexual abuse.

Accept in principle

The Victorian Government will work with other jurisdictions to adopt a nationally consistent definition for child sexual exploitation through relevant agencies and portfolios.

The Victorian Government will consider the implementation and timing for the application of the new definition.

 

12.16

Increasing the stability of placements

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

a. improved processes for ‘matching’ children with carers and other children in a placement, including in residential care
b. the provision of necessary information to carers about a child, prior to and during their placement, to enable carers to properly support the child
c. support and training for carers to deal with the different developmental needs of children as well as managing difficult situations and challenging behaviour.

Accept

12.17

Supporting kinship/relative care placements

Each state and territory government should ensure that:

a. the financial support and training provided to kinship/relative carers is equivalent to that provided to foster carers
b. the need for any additional supports are identified during kinship/relative carer assessments and are funded
c. additional casework support is provided to maintain birth family relationships.

Accept in principle

12.18

Residential care

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

12.19

Residential care

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

12.20

Aboriginal and Torres Strait Islander children

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

a. fully implement the Aboriginal and Torres Strait Islander Child Placement Principle
b. improve community and child protection sector understanding of the intent and scope of the principle
c. develop outcome measures that allow quantification and reporting on the extent of the full application of the principle, and evaluation of its impact on child safety and the reunification of Aboriginal and Torres Strait Islander children with their families
d. invest in community capacity building as a recognised part of kinship care, in addition to supporting individual carers, in recognition of the role of Aboriginal and Torres Strait Islander communities in bringing up children.

Accept

12.21

Children with disability

Each state and territory government should ensure:

a. the adequate assessment of all children with disability entering out-of-home care
b. the availability and provision of therapeutic support
c. support for disability-related needs
d. the development and implementation of care plans that identify specific risk-management and safety strategies for individual children, including the identification of trusted and safe adults in the child’s life.

Accept in principle

12.22

Care leavers

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

a. strategies to assist care-leavers who disclose that they were sexually abused while in out-of-home care to access general post-care supports
b. the development of targeted supports to address the specific needs of sexual abuse survivors, such as help in accessing therapeutic treatment to deal with impacts of abuse, and for these supports to be accessible until at least the age of 25.

Accept in principle

Schools

Volume number and topic Recommendation Response

13.1

Child Safe Standards

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

13.2

Child Safe Standards

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

13.3

Child Safe Standards

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

13.4

Supporting boarding schools

The Australian Government and state and territory governments should ensure that  needs-based funding arrangements for Aboriginal and Torres Strait Islander boarding students are sufficient for schools and hostels to create child safe environments. Noted

13.5

Supporting boarding schools

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

13.6

Responding to complaints relating to children with harmful sexual behaviours

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

13.7

Guidance for teachers and principles

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

13.8

Teacher registration

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

Sport, recreation, arts, culture, community and hobby groups

Volume number and topic Recommendation Response
14.1
Child Safe Standards
All sport and recreation institutions, including arts, culture, community and hobby groups, that engage with or provide services to children should implement the Child Safe Standards identified by the Royal Commission. Accept in principle
14.2
A representative voice for the sector
The National Office for Child Safety should establish a child safety advisory committee for the sport and recreation sector with membership from government and non-government peak bodies to advise the national office on sector-specific child safety issues. Noted
14.3
Expanding Play by the Rules
The education and information website known as Play by the Rules should be expanded and funded to develop resources – in partnership with the National Office for Child Safety – that are relevant to the broader sport and recreation sector. Noted
14.4
Improving communication
The independent state and territory oversight bodies that implement the Child Safe Standards should establish a free email subscription function for the sport and recreation sector so that all providers of these services to children can subscribe to receive relevant child safe information and links to resources. Accept

Contemporary detention environments

Volume number and topic Recommendation Response
15.1
Contemporary detention environments
All institutions engaged in child-related work, including detention institutions and those involving detention and detention-like practices, should implement the Child Safe Standards identified by the Royal Commission. Accept in principle
15.2
Contemporary detention environments
Given the Australian Government’s commitment to ratify the Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, the National Preventive Mechanism(s) should be provided with the expertise to consider and make recommendations relating to preventing and responding to child sexual abuse as part of regularly examining the treatment of persons deprived of their liberty in places of detention. Accept in principle
15.3
Youth detention
Youth justice agencies in each state and territory should review the building and design features of youth detention to identify and address elements that may place children at risk. This should include consideration of how to most effectively use technology, such as closed-circuit television (CCTV) cameras and body-worn cameras, to capture interactions between children and between staff and children without unduly infringing children’s privacy. Accept
15.4
Youth detention

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

a. appropriate and safe placements of children in youth detention, including a risk assessment process before placement decisions that identifies if a child may be vulnerable to child sexual abuse or if a child is displaying harmful sexual behaviours
b. children are not placed in adult prisons
c. frameworks take into account the importance of children having access to trusted adults, including family, friends and community, in the prevention and disclosure of child sexual abuse and provide for maximum contact between children and trusted
adults through visitation, and use of the telephone and audio-visual technology
d. best practice processes are in place for strip searches and other authorised physical contact between staff and children, including sufficient safeguards to protect children such as:

     i. adequate communication between staff and the child before, during and after a search is conducted or other physical contact occurs
    ii. clear protocols detailing when such practices are permitted and how they should be performed. The key elements of these protocols should be provided to children in an accessible format
    iii. staff training that highlights the potential for strip searching to re-traumatise children who have been sexually abused and how the misuse of search powers can lead to sexual humiliation or abuse.

State and territory governments should consider implementing strategies for detecting contraband, such as risk assessments or body scanners, to minimise the need for strip searching children.

Accept in principle
15.5
Youth detention

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

a. recruiting and developing Aboriginal and Torres Strait Islander staff to work at all levels of the youth justice system, including in key roles in complaint handling systems
b. providing access to interpreters, particularly with respect to induction and education programs, and accessing internal and external complaint handling systems
c. ensuring that all youth detention facilities have culturally appropriate policies and procedures that facilitate connection with family, community and culture, and reflect an understanding of, and respect for, cultural practices in different clan groups
d. employing, training and professionally developing culturally competent staff who understand the particular needs and experiences of Aboriginal and Torres Strait Islander children, including the specific barriers that Aboriginal and Torres Strait
Islander children face in disclosing sexual abuse

Accept in principle
15.6
Youth detention
All staff should receive appropriate training on the needs and experiences of children with disability, mental health problems, and alcohol or other drug problems, and children from culturally and linguistically diverse backgrounds that highlights the barriers these children may face in disclosing sexual abuse. Accept
15.7
Youth detention
State and territory governments should improve access to therapeutic treatment for survivors of child sexual abuse who are in youth detention, including by assessing their advocacy, support and therapeutic treatment needs and referring them to appropriate services, and ensure they are linked to ongoing treatment when they leave detention. Accept
15.8
Youth detention
State and territory governments should ensure that all staff in youth detention are provided with training and ongoing professional development in trauma-informed care to assist them to meet the needs of children in youth detention, including children at risk of sexual abuse and children with harmful sexual behaviours. Accept
15.9
Youth detention

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

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

b. children have confidential and unrestricted access to external oversight bodies

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

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

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

Accept
15.10
Youth detention
State and territory governments should ensure they have an independent oversight body with the appropriate visitation, complaint handling and reporting powers, to provide oversight of youth detention. This could include an appropriately funded and independent Inspector of Custodial Services or similar body. New and existing bodies should have expertise in child-trauma, and the prevention and identification of child sexual abuse. Accept
15.11
Immigration detention
The Department of Immigration and Border Protection should publicly report within 12 months on how it has implemented the Child Protection Panel’s recommendations. Noted
15.12
Immigration detention

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

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

Noted
15.13
Immigration detention
The Department of Immigration and Border Protection should identify the scope and nature of the need for support services for victims in immigration detention. The Department of Immigration and Border Protection should ensure that appropriate therapeutic and other specialist and support services are funded to meet the identified needs of victims in immigration detention and ensure they are linked to ongoing treatment when they leave detention.     Noted
15.14
Immigration detention
The Department of Immigration and Border Protection should designate appropriately qualified child safety officers for each place in which children are detained. These officers should assist and build the capacity of staff and service providers at the local level to implement the Child Safe Standards. Noted
15.15
Immigration detention
The Department of Immigration and Border Protection should implement an independent visitors program in immigration detention. Noted

Beyond the Royal Commission

Volume number and topic

Recommendation

Response

17.1

Monitoring and reporting on implementation

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

17.2

Monitoring and reporting on implementation

The Australian Government and state and territory governments should, beginning 12 months after this Final Report is tabled, report on their implementation of the Royal Commission’s recommendations made in this Final Report and its earlier Working With Children Checks, Redress and civil litigation and Criminal justice reports, through five consecutive annual reports tabled before their respective parliaments. Accept

17.3

Monitoring and reporting on implementation

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

17.4

Monitoring and reporting on implementation

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

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

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

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

Noted

17.5

Preserving the records of the Royal Commission

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

17.6

A national memorial to victims and survivors of child sexual abuse in institutional contexts

 

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

Working with Children Checks Report (2015)

Volume number and topic

Recommendation

Response

1

State and territory governments should:

a) within 12 months of the publication of this report, amend their WWCC laws to implement the standards identified in this report
b) once the standards are implemented, obtain agreement from the Council of Australian Governments (COAG), or a relevant ministerial council, before deviating from or altering the standards in this report, adopting changes across all jurisdictions
c) within 18 months from the publication of this report, amend their WWCC laws to enable clearances from other jurisdictions to be recognised and accepted.

Accept in principle
2 The South Australian Government should, within 12 months of the publication of this report, replace its criminal history assessments with a WWCC scheme that incorporates the standards set out in this report. Noted
3

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

a. facilitate a national model for WWCCs by:

i. establishing a centralised database, operated by CrimTrac, that is readily accessible to all jurisdictions to record WWCC decisions
ii. together with state and territory governments, identifying consistent terminology to capture key WWCC decisions (for example, refusal, cancellation, suspension and grant) for recording into the centralised database
iii. enhancing CrimTrac’s capacity to continuously monitor WWCC cardholders’ national criminal history records

b. explore avenues to make international records more accessible for the purposes of WWCCs
c. identify and require all Commonwealth Government personnel, including contractors, undertaking child-related work, as defined by the child-related work standards set out in this report, to obtain WWCCs.

Accept in principle
4

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

a. agree on a set of standards or guidelines to enhance the accurate and timely recording of information by state and territory police into CrimTrac’s system
b. review the information they have agreed to exchange under the National Exchange of Criminal History Information for People Working with Children (ECHIPWC), and establish a set of definitions for the key terms used to describe the different types of criminal history records so they are consistent across the jurisdictions (these key terms include pending charges, non-conviction charges and information about the circumstances of an offence)
c. take immediate action to record into CrimTrac’s system historical criminal records that are in paper form or on microfilm and which are not currently identified by CrimTrac’s initial database search
d. once these historical criminal history records are entered into CrimTrac’s system by all jurisdictions, check all WWCC cardholders against them through the expanded continuous monitoring process.

Accept in principle
5 State and territory governments should amend their WWCC laws to incorporate a consistent and simplified definition of child-related work, in line with the recommendations below. Accept in principle
6 State and territory governments should amend their WWCC laws to provide that work must involve contact between an adult and one or more children to qualify as child-related work. Accept
7

State and territory governments should:

a. amend their WWCC laws to provide that the phrase ‘contact with children’ refers to physical contact, face-to-face contact, oral communication, written communication or electronic communication
b. through COAG, or a relevant ministerial council, agree on standard definitions for each kind of contact and amend their WWCC laws to incorporate those definitions.

Accept in princple
8

State and territory governments should:

a. amend their WWCC laws to provide that contact with children must be a usual part of, and more than incidental to, the child-related work
b. through COAG, or a relevant ministerial council, agree on standard definitions for the phrases ‘usual part of work’ and ‘more than incidental to the work’, and amend their WWCC laws to incorporate those definitions.

Accept in principle
9 State and territory governments should amend their WWCC laws to specify that it is irrelevant whether the contact with children is supervised or unsupervised. Accept
10 State and territory governments should amend their WWCC laws to provide that a person is engaged in child-related work if they are engaged in the work in any capacity and whether or not for reward. Accept
11 State and territory governments should amend their WWCC laws to provide that work that is undertaken under an arrangement for a personal or domestic purpose is not child-related, even if it would otherwise be so considered. Accept
12

State and territory governments should amend their WWCC laws to:

a. define the following as child-related work:

i. accommodation and residential services for children, including overnight excursions or stays
ii. activities or services provided by religious leaders, officers or personnel of religious organisations
iii. childcare or minding services
iv. child protection services, including out-of-home care (OOHC)
v. clubs and associations with a significant membership of, or involvement by, children
vi. coaching or tuition services for children
vii. commercial services for children, including entertainment or party services, gym or play facilities, photography services, and talent or beauty competitions
viii. disability services for children
ix. education services for children
x. health services for children
xi. justice and detention services for children, including immigration detention facilities where children are regularly detained
xii. transport services for children, including school crossing services
xiii. other work or roles that involve contact with children that is a usual part of, and more than incidental to, the work or roles.

b. require WWCCs for adults residing in the homes of authorised carers of children
c. remove all other remaining categories of work or roles.

For further consideration
13 State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each category of child-related work and amend their WWCC laws to incorporate those definitions. Accept in principle
14 State and territory governments should amend their WWCC laws to:
a. exempt:
i. children under 18 years of age, regardless of their employment status
ii. employers and supervisors of children in a workplace, unless the work is child-related
iii. people who engage in child-related work for seven days or fewer in a calendar year, except in respect of overnight excursions or stays
iv. people who engage in child-related work in the same capacity as the child
v. police officers, including members of the Australian Federal Police
vi. parents or guardians who volunteer for services or activities that are usually provided to their children, in respect of that activity, except in respect of:
a) overnight excursions or stays
b) providing services to children with disabilities, where the services involve close, personal contact with those children
b. remove all other exemptions and exclusions
c. prohibit people who have been denied a WWCC, and subsequently not granted one, from relying on any exemption.
For further consideration
15 State and territory governments, through COAG, or a relevant ministerial council, should agree on standard definitions for each exemption category and amend their WWCC laws to incorporate those definitions. Accept in principle
16

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

a. engaging in child-related work without holding, or having applied for, a WWCC
b. engaging a person in child-related work without them holding, or having applied for, a WWCC
c. providing false or misleading information in connection with a WWCC application
d. applicants and/or WWCC cardholders failing to notify screening agencies of relevant changes in circumstances
e. unauthorised disclosure of information gathered during the course of a WWCC.

Accept
17

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

a. convictions, whether or not spent
b. findings of guilt that did not result in a conviction being recorded as charges, regardless of status or outcome, including:

i. pending charges – that is, charges laid but not finalised
ii. charges disposed of by a court, or otherwise, other than by way of conviction (for example, withdrawn, set aside or dismissed)
iii. charges that led to acquittals or convictions that were quashed or otherwise over-turned on appeal

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

Accept
18 State and territory governments should amend their WWCC laws to require police services to provide screening agencies with records that meet the definition of criminal history records for WWCC purposes and any other available information relating to the circumstances of such offences. Accept
19 State and territory governments should amend their WWCC laws to:
a. require that relevant disciplinary and/or misconduct information is checked for all WWCC applicants
b. include a standard definition of disciplinary and/or misconduct information that encompasses disciplinary action and/or findings of misconduct where the conduct was against, or involved, a child, irrespective of whether this information arises from reportable conduct schemes or other systems or bodies responsible for disciplinary or misconduct proceedings
c. require the bodies responsible for the relevant disciplinary and/or misconduct information to notify their respective screening agencies of relevant disciplinary and/or misconduct information that meets the definition.
Accept
20 State and territory governments should amend their WWCC laws to respond to records in the same way, specifically that:
a. the absence of any relevant criminal history, disciplinary or misconduct information in an applicant’s history leads to an automatic grant of a WWCC
b. any conviction and/or pending charge in an applicant’s criminal history for the following categories of offence leads to an automatic WWCC refusal, provided the applicant was at least 18 years old at the time of the offence:
i. murder of a child
ii. manslaughter of a child
iii. indecent or sexual assault of a child
iv. child pornography–related offences
v. incest where the victim was a child
vi. abduction or kidnapping of a child
vii. animal-related sexual offences.
c. all other relevant criminal, disciplinary or misconduct information should trigger an assessment of the person’s suitability for a WWCC (consistent with the risk assessment factors set out below).
Accept in principle
21

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

a. juvenile records and/or non-conviction charges for the offence categories specified in recommendation 20(b)
b. sexual offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b)
c. violent offences, including assaults, arson and other fire-related offences, regardless of whether the victim was a child and including offences not already covered in recommendation 20(b)
d. child welfare offences
e. offences involving cruelty to animals
f. drug offences.

Accept
22 The Commonwealth Government, through COAG, or a relevant ministerial council, should take a lead role in identifying the specific criminal offences that fall within the categories specified in recommendations 20(b) and 21. Accept in principle
23

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

a. the nature, gravity and circumstances of the offence and/or misconduct, and how this is relevant to children or child-related work
b. the length of time that has passed since the offence and/or misconduct occurred
c. the age of the child
d. the age difference between the person and the child
e. the person’s criminal and/or disciplinary history, including whether there is a pattern of concerning conduct
f. all other relevant circumstances in respect of their history and the impact on their suitability to be engaged in child-related work.

Accept
24 State and territory governments should amend their WWCC laws to expressly provide that, in weighing up the risk assessment criteria, the paramount consideration must always be the best interests of children, having regard to their safety and protection. Accept
25

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

Applicants
a. applicants must submit a WWCC application to the appropriate screening agency before beginning child-related work and not withdraw the application while engaging in child-related work
b. applicants must provide a WWCC application receipt to their employers before beginning child-related work.

Other safeguards
c. employers must cite application receipts, record application numbers and verify applications with the relevant screening agency
d. there must be capacity to impose interim bars on applicants where records are identified that may indicate a risk and require further assessment.

Accept in principle
26 State and territory governments that do not have an online WWCC processing system should establish one. Accept
27 State and territory governments should process WWCC applications within five working days, and no longer than 21 working days for more complex cases. Accept in principle
28 All state and territory governments should amend their WWCC laws to specify that:
a. WWCC decisions are based on the circumstances of the individual and are detached from the employer the person is seeking to work for, or the role or organisation the person is seeking to work in
b. the outcome of a WWCC is either that a clearance is issued or it is not; there should be no conditional or different types of clearances
c. volunteers and employees are issued with the same type of clearance.
Accept
29

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

• murder of a child
• indecent or sexual assault of a child
• child pornography-related offences
• incest where the victim was a child
and
a. received a sentence of full time custody for the conviction, such persons being permanently excluded from an appeal
or
b. by virtue of that conviction, the person is subject to an order that imposes any control on the person’s conduct or movement, or excludes the person from working with children, such persons being excluded from an appeal for the duration of that order.

For further consideration
30 Subject to the implementation of the standards set out in this report, all state and territory governments should amend their WWCC laws to enable WWCCs from other jurisdictions to be recognised and accepted. Accept in principle
31

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

a. WWCCs are valid for five years
b. employers and WWCC cardholders engaged in child-related work must inform the screening agency when a person commences or ceases being engaged in specific child-related work
c. screening agencies are required to notify a person’s employer of any change in the person’s WWCC status.

For further consideration
32 All state and territory governments should grant screening agencies, or another suitable regulatory body, the statutory power to monitor compliance with WWCC laws. For further consideration
33 All state and territory governments should ensure their WWCC laws include powers to compel the production of relevant information for the purposes of compliance monitoring. Accept
34

The Commonwealth, state and territory governments should:

a. through COAG, or a relevant ministerial council, adopt the standards and set a timeframe within which all jurisdictions must report back to COAG, or a relevant ministerial council, on implementation
b. establish a process whereby changes to the standards or to state and territory schemes need to be agreed to by COAG, or a relevant ministerial council, and must be adopted across all jurisdictions.

Accept in principle
35 The Commonwealth, state and territory governments should provide an annual report to COAG, or a relevant ministerial council, for three years following the publication of this report, to be tabled in the parliaments of all nine jurisdictions, detailing their progress in implementing the recommendations in this report and achieving a nationally consistent approach to WWCCs. Accept in principle
36 COAG, or a relevant ministerial council, should ensure a review is made after three years of the publication of this report, of the state and territory governments’ progress in achieving consistency across the WWCC schemes, with a view to assessing whether they have implemented the Royal Commission’s recommendations. Accept in principle

Redress and Civil Litigation Report (2015)

Volume number and topic

Recommendation

Response

1
Redress
A process for redress must provide equal access and equal treatment for survivors – regardless of the location, operator, type, continued existence or assets of the institution in which they were abused – if it is to be regarded by survivors as being capable of delivering justice. Accept
2
Redress
Appropriate redress for survivors should include the elements of:

a. direct personal response
b. counselling and psychological care
c. monetary payments.

Accept
3
Redress
Funders or providers of existing support services should maintain their current resourcing for existing support services, without reducing or diverting resources in response to the Royal Commission’s recommendations on redress and civil litigation. Accept
4
Redress

Any institution or redress scheme that offers or provides any element of redress should do so in accordance with the following principles:

a. Redress should be survivor focused.
b. There should be a ‘no wrong door’ approach for survivors in gaining access to redress.
c. All redress should be offered, assessed and provided with appropriate regard to what is known about the nature and impact of child sexual abuse – and institutional child sexual abuse in particular – and to the cultural needs of survivors.
d. All redress should be offered, assessed and provided with appropriate regard to the needs of particularly vulnerable survivors.

Accept
5
Redress

Institutions should offer and provide a direct personal response to survivors in accordance
with the following principles:

a. Re-engagement between a survivor and an institution should only occur if, and to the extent that, a survivor desires it.
b. Institutions should make clear what they are willing to offer and provide by way of direct personal response to survivors of institutional child sexual abuse. Institutions should ensure that they are able to provide the direct personal
response they offer to survivors.
c. At a minimum, all institutions should offer and provide on request by a survivor:

i. an apology from the institution
ii. the opportunity to meet with a senior institutional representative and receive an acknowledgement of the abuse and its impact on them
iii. an assurance or undertaking from the institution that it has taken, or will take, steps to protect against further abuse of children in that institution.

d. In offering direct personal responses, institutions should try to be responsive to survivors’ needs.
e. Institutions that already offer a broader range of direct personal responses to survivors and others should consider continuing to offer those forms of direct personal response.
f. Direct personal responses should be delivered by people who have received some training about the nature and impact of child sexual abuse and the needs of survivors, including cultural awareness and sensitivity training where relevant.
g. Institutions should welcome feedback from survivors about the direct personal response they offer and provide.

Accept
6
Redress
Those who operate a redress scheme should offer to facilitate the provision of a written apology, a written acknowledgement and/or a written assurance of steps taken to protect against further abuse for survivors who seek these forms of direct personal response but who do not wish to have any further contact with the institution. Accept in principle
7
Redress
Those who operate a redress scheme should facilitate the provision of these forms of direct personal response by conveying survivors’ requests for these forms of direct personal response to the relevant institution. Accept in principle
8
Redress
Institutions should accept a survivor’s choice of intermediary or representative to engage with the institution on behalf of the survivor, or with the survivor as a support person, in seeking or obtaining a direct personal response. Accept
9
Redress

Counselling and psychological care should be supported through redress in accordance with
the following principles:

a. Counselling and psychological care should be available throughout a survivor’s life.
b. Counselling and psychological care should be available on an episodic basis.
c. Survivors should be allowed flexibility and choice in relation to counselling and psychological care.
d. There should be no fixed limits on the counselling and psychological care provided to a survivor.
e. Without limiting survivor choice, counselling and psychological care should be provided by practitioners with appropriate capabilities to work with clients with complex trauma.
f. Treating practitioners should be required to conduct ongoing assessment and review to ensure treatment is necessary and effective. If those who fund counselling and psychological care through redress have concerns about services provided by a particular practitioner, they should negotiate a process of external review with that practitioner and the survivor. Any process of assessment and review should be designed to ensure it causes no harm to the survivor.
g. Counselling and psychological care should be provided to a survivor’s family members if necessary for the survivor’s treatment.

Accept in principle
10
Redress

To facilitate the provision of counselling and psychological care by practitioners with appropriate capabilities to work with clients with complex trauma:

a. the Australian Psychological Society should lead work to design and implement a public register to enable identification of practitioners with appropriate capabilities to work with clients with complex trauma
b. the public register and the process to identify practitioners with appropriate
capabilities to work with clients with complex trauma should be designed and implemented by a group that includes representatives of the Australian Psychological Society, the Australian Association of Social Workers, the Royal
Australian and New Zealand College of Psychiatrists, Adults Surviving Child Abuse, a specialist sexual assault service, and a non-government organisation with a suitable understanding of the counselling and psychological care needs of Aboriginal and Torres Strait Islander survivors
c. the funding for counselling and psychological care under redress should be used to provide financial support for the public register if required
d. those who operate a redress scheme should ensure that information about the public register is made available to survivors who seek counselling and psychological care through the redress scheme.

Accept in principle. This is a matter for the Australian Government
11
Redress

Those who administer support for counselling and psychological care through redress should ensure that counselling and psychological care are supported through redress in accordance with the following principles:

a. Counselling and psychological care provided through redress should supplement, and not compete with, existing services.
b. Redress should provide funding for counselling and psychological care services and should not itself provide counselling and psychological care services.
c. Redress should fund counselling and psychological care as needed by survivors rather than providing a lump sum payment to survivors for their future counselling and psychological care needs.

Accept
12
Redress
The Australian Government should remove any restrictions on the number of sessions of counselling and psychological care, whether in a particular period of time or generally, for which Medicare funding is available for survivors who are assessed as eligible for redress under a redress scheme. Accept. This is a matter for the Australian Government
13
Redress
The Australian Government should expand the range of counselling and psychological care services for which Medicare funding is available for survivors who are assessed as eligible for redress under a redress scheme to include longer-term interventions that are suitable for treating complex trauma, including through non-cognitive approaches. Accept in principle. This is a matter for the Australian Government
14
Redress

The funding obtained through redress to ensure that survivors’ needs for counselling and psychological care are met should be used to fund measures that help to meet those needs, including:

a. measures to improve survivors’ access to Medicare by:

i. funding case management style support to help survivors to understand what is available through the Better Access initiative and Access to Allied Psychological Services and why a GP diagnosis and referral is needed
ii. maintaining a list of GPs who have mental health training, are familiar with the existence of the redress scheme and are willing to be recommended to survivors as providers of GP services, including referrals, in relation to counselling and psychological care
iii. supporting the establishment and use of the public register that provides details of practitioners who have been identified as having appropriate capabilities to treat survivors and who are registered practitioners for Medicare purposes

b. providing funding to supplement existing services provided by state-funded specialist services to increase the availability of services and reduce waiting times for survivors
c. measures to address gaps in expertise and geographical and cultural gaps by:

i. supporting the establishment and promotion of the public register that provides details of practitioners who have been identified as having appropriate capabilities to treat survivors
ii. funding training in cultural awareness for practitioners who have the capabilities to work with survivors but have not had the necessary training or experience in working with Aboriginal and Torres Strait Islander survivors
iii. funding rural and remote practitioners, or Aboriginal and Torres Strait Islander practitioners, to obtain appropriate capabilities to work with survivors
iv. providing funding to facilitate regional and remote visits to assist in establishing therapeutic relationships; these could then be maintained largely by online or telephone counselling. There could be the potential to fund additional visits if required from time to time

d. providing funding for counselling and psychological care for survivors whose needs for counselling and psychological care cannot otherwise be met, including by paying reasonable gap fees charged by practitioners if survivors are unable to afford these fees.

Accept in principle. This is a matter for the Australian Government
15
Redress
The purpose of a monetary payment under redress should be to provide a tangible recognition of the seriousness of the hurt and injury suffered by a survivor. Accept
16
Redress
Monetary payments should be assessed and determined by using the following matrix:
Factor                        Value
Severity of abuse      1–40
Impact of abuse         1–40
Additional elements    1–20
Accept in principle
17
Redress
The ‘Additional elements’ factor should recognise the following elements:
a. whether the applicant was in state care at the time of the abuse – that is, as a ward of the state or under the guardianship of the relevant Minister or government agency
b. whether the applicant experienced other forms of abuse in conjunction with the sexual abuse – including physical, emotional or cultural abuse or neglect
c. whether the applicant was in a ‘closed’ institution or without the support of family or friends at the time of the abuse
d. whether the applicant was particularly vulnerable to abuse because of his or her disability.
Accept in principle
18
Redress

Those establishing a redress scheme should commission further work to develop this matrix and the detailed assessment procedures and guidelines required to implement it:

a. in accordance with our discussion of the factors
b. taking into account expert advice in relation to institutional child sexual abuse, including child development, medical, psychological, social and legal perspectives
c. with the benefit of actuarial advice in relation to the actuarial modelling on which the level and spread of monetary payments and funding expectations are based.

Accept
19
Redress

The appropriate level of monetary payments under redress should be:

a. a minimum payment of $10,000
b. a maximum payment of $200,000 for the most severe case
c. an average payment of $65,000.

Accept in principle
20
Redress
Monetary payments should be assessed and paid without any reduction to repay past Medicare expenses, which are to be repaid (if required) as part of the administration costs of a redress scheme. Accept. This is a matter for the Australian Government
21
Redress
Consistent with our view that monetary payments under redress are not income for the purposes of social security, veterans’ pensions or any other Commonwealth payments, those who operate a redress scheme should seek a ruling to this effect to provide certainty for survivors. Accept. This is a matter for the Australian Government
22
Redress
Those who operate a redress scheme should give consideration to offering monetary payments by instalments at the option of eligible survivors, taking into account the likely demand for this option from survivors and the cost to the scheme of providing it. Accept in principle. This is a matter for the Australian Government
23
Redress
Survivors who have received monetary payments in the past – whether under other redress schemes, statutory victims of crime schemes, through civil litigation or otherwise – should be eligible to be assessed for a monetary payment under redress. Accept in principle
24
Redress

The amount of the monetary payments that a survivor has already received for institutional child sexual abuse should be determined as follows:

a. monetary payments already received should be counted on a gross basis, including any amount the survivor paid to reimburse Medicare or in legal fees
b. no account should be taken of the cost of providing any services to the survivor, such as counselling services
c. any uncertainty as to whether a payment already received related to the same abuse for which the survivor seeks a monetary payment through redress should be resolved in the survivor’s favour.

Accept in principle
25
Redress
The monetary payments that a survivor has already received for institutional child sexual abuse should be taken into account in determining any monetary payment under redress by adjusting the amount of the monetary payments already received for inflation and then deducting that amount from the amount of the monetary payment assessed under redress. Accept
26
Redress
In order to provide redress under the most effective structure for ensuring justice for survivors, the Australian Government should establish a single national redress scheme. Accept
27
Redress
If the Australian Government does not establish a single national redress scheme, as the next best option for ensuring justice for survivors, each state and territory government should establish a redress scheme covering government and non-government institutions in the relevant state or territory. Accept in principle 
28
Redress
The Australian Government should determine and announce by the end of 2015 that it is willing to establish a single national redress scheme. Accept in principle 
29
Redress
If the Australian Government announces that it is willing to establish a single national redress scheme, the Australian Government should commence national negotiations with state and territory governments and all parties to the negotiations should seek to ensure that the negotiations proceed as quickly as possible to agree the necessary arrangements for a single national redress scheme. Accept
30
Redress
If the Australian Government does not announce that it is willing to establish a single national redress scheme, each state and territory government should establish a redress scheme for the relevant state or territory that covers government and non-government institutions. State and territory governments should undertake national negotiations as quickly as possible to agree the necessary matters of detail to provide the maximum possible consistency for survivors between the different state and territory schemes. Accept in principle
31
Redress
Whether there is a single national redress scheme or separate state and territory redress schemes, the scheme or schemes should be established and ready to begin inviting and accepting applications from survivors by no later than 1 July 2017. Accept in principle
32
Redress
The Australian Government (if it announces that it is willing to establish a single national redress scheme) or state and territory governments should establish a national redress advisory council to advise all participating governments on the establishment and operation of the redress scheme or schemes. Accept
33
Redress

The national redress advisory council should include representatives:

a. of survivor advocacy and support groups
b. of non-government institutions, particularly those that are expected to be required to respond to a significant number of claims for redress
c. with expertise in issues affecting survivors with disabilities
d. with expertise in issues of particular importance to Aboriginal and Torres Strait Islander survivors
e. with expertise in psychological and legal issues relevant to survivors
f. with any other expertise that may assist in advising on the establishment and operation of the redress scheme or schemes.

Accept
34
Redress

For any application for redress made to a redress scheme, the cost of redress in respect of the application should be:

a. a proportionate share of the cost of administration of the scheme
b. if the applicant is determined to be eligible, the cost of any contribution for counselling and psychological care in respect of the applicant
c. if the applicant is determined to be eligible, the cost of any monetary payment to be made to the applicant.

Accept
35
Redress

The redress scheme or schemes should be funded as much as possible in accordance with
the following principles:

a. The institution in which the abuse is alleged or accepted to have occurred should fund the cost of redress.
b. Where an applicant alleges or is accepted to have experienced abuse in more than one institution, the redress scheme or schemes should apportion the cost of funding redress between the relevant institutions, taking account of the relative severity of the abuse in each institution and any other features relevant to calculating a monetary payment.
c. Where the institution in which the abuse is alleged or accepted to have occurred no longer exists but the institution was part of a larger group of institutions or where there is a successor to the institution, the group of institutions or the successor institution should fund the cost of redress.

Accept
36
Redress
The Australian Government and state and territory governments should provide ‘funder of last resort’ funding for the redress scheme or schemes so that the governments will meet any shortfall in funding for the scheme or schemes. Accept in principle
37
Redress
Regardless of whether there is a single national redress scheme or separate state and territory redress schemes, the Australian Government and each state or territory government should negotiate and agree their respective shares of or contributions to ‘funder of last resort’ funding in respect of applications alleging abuse in the relevant state or territory. Accept in principle
38
Redress
The Australian Government (if it announces that it is willing to establish a single national redress scheme) or state and territory governments should determine how best to raise the required funding for the redress scheme or schemes, including government funding and funding from non-government institutions. Accept
39
Redress
The Australian Government or state and territory governments should determine whether or not to require particular non-government institutions or particular types of non-government institutions to contribute funding for redress. Accept
40
Redress
The redress scheme, or each redress scheme, should establish a trust fund to receive the funding for counselling and psychological care paid under redress and to manage and apply that funding to meet the needs for counselling and psychological care of those eligible for redress under the relevant redress scheme. Accept in principle. This is a matter for the Australian Government
41
Redress

The trust fund, or each trust fund, should be governed by a corporate trustee with a board of directors appointed by the government that establishes the relevant redress scheme. The board or each board should include:

a. an independent Chair
b. a representative of: government; non-government institutions; survivor advocacy and support groups; and the redress scheme
c. those with any other expertise that is desired at board level to direct the trust.

Accept in principle. This is a matter for the Australian Government
42
Redress
The trustee, or each trustee, should engage actuaries to conduct regular actuarial assessments to determine a ‘per head’ estimate of future counselling and psychological care costs to be met through redress. The trustee, or each trustee, should determine the amount from time to time that those who fund redress, including as the funder of last
resort, must pay per eligible applicant to fund the counselling and psychological care element of redress.
Accept in principle. This is a matter for the Australian Government
43
Redress
A person should be eligible to apply to a redress scheme for redress if he or she was sexually abused as a child in an institutional context and the sexual abuse occurred, or the first incidence of the sexual abuse occurred, before the cut-off date. Accept
44
Redress
‘Institution’ should have the same meaning as in the Royal Commission’s terms of reference. Accept
45
Redress

Child sexual abuse should be taken to have occurred in an institutional context in the following circumstances:

a. it happens:

i. on premises of an institution
ii. where activities of an institution take place or
iii. in connection with the activities of an institution in circumstances where the institution is, or should be treated as being, responsible for the contact between the abuser and the applicant that resulted in the abuse being committed

b. it is engaged in by an official of an institution in circumstances (including circumstances that involve settings not directly controlled by the institution) where the institution has, or its activities have, created, facilitated, increased, or
in any way contributed to (whether by act or omission) the risk of abuse or the circumstances or conditions giving rise to that risk
c. it happens in any other circumstances where the institution is, or should be treated as being, responsible for the adult abuser having contact with the applicant.

Accept
46
Redress
Those who operate the redress scheme should specify the cut-off date as being the date on which the Royal Commission’s recommended reforms to civil litigation in relation to limitation periods and the duty of institutions commence. Accept in principle
47
Redress
An offer of redress should only be made if the applicant is alive at the time the offer is made. Accept in principle
48
Redress
A redress scheme should have no fixed closing date. But, when applications to the scheme reduce to a level where it would be reasonable to consider closing the scheme, those who operate the redress scheme should consider specifying a closing date for the scheme. The closing date should be at least 12 months into the future. Those who
operate the redress scheme should ensure that the closing date is given widespread publicity until the scheme closes.
For further consideration
49
Redress
Those who operate a redress scheme should ensure the availability of the scheme is widely publicised and promoted. Accept
50
Redress

The redress scheme should consider adopting particular communication strategies for people who might be more difficult to reach, including:

a. Aboriginal and Torres Strait Islander communities
b. people with disability
c. culturally and linguistically diverse communities
d. regional and remote communities
e. people with mental health difficulties
f. people who are experiencing homelessness
g. people in correctional or detention centres
h. children and young people
i. people with low levels of literacy
j. survivors now living overseas.

Accept
51
Redress
A redress scheme should rely primarily on completion of a written application form. Accept
52
Redress
A redress scheme should fund support services and community legal centres to assist applicants to apply for redress. Accept in principle
53
Redress
A redress scheme should select support services and community legal centres to cover a broad range of likely applicants, taking into account the need to cover regional and remote areas and the particular needs of different groups of survivors, including Aboriginal and Torres Strait Islander survivors. Accept
54
Redress
Those who operate a redress scheme should determine whether the scheme will require additional material or evidence and additional procedures to determine the validity of applications. Any additional requirements should be clearly set out in scheme material that is made available to applicants, support services and others who may support or advise applicants in relation to the scheme. Accept
55
Redress
A redress scheme may require applicants for redress to verify their accounts of abuse by statutory declaration. Accept
56
Redress
A redress scheme should inform any institution named in an application for redress of the application and the allegations made in it and request the institution to provide any relevant information, documents or comments. Accept
57
Redress
‘Reasonable likelihood’ should be the standard of proof for determining applications for redress. Accept
58
Redress
A redress scheme should adopt administrative decision-making processes appropriate to a large-scale redress scheme. It should make decisions based on the application of the detailed assessment procedures and guidelines for implementing the matrix for monetary payments. Accept
59
Redress
An offer of redress should remain open for acceptance for a period of one year. Accept in principle. This is a matter for the Australian Government
60
Redress
A period of three months should be allowed for an applicant to seek a review of an offer of redress after the offer is made. Accept in principle. This is a matter for the Australian Government
61
Redress
A redress scheme should offer an internal review process. Accept
62
Redress
A redress scheme established on an administrative basis should be made subject to oversight by the relevant ombudsman through the ombudsman’s complaints mechanism. Accept in principle
63
Redress
As a condition of making a monetary payment, a redress scheme should require an applicant to release the scheme (including the contributing government or governments) and the institution from any further liability for institutional child sexual abuse by executing a deed of release. Accept
64
Redress
A redress scheme should fund, at a fixed price, a legal consultation for an applicant before the applicant decides whether or not to accept the offer of redress and grant the required releases. Accept in principle
65
Redress
No confidentiality obligations should be imposed on applicants for redress. Accept
66
Redress
A redress scheme should offer and fund counselling during the period from assisting applicants with the application, through the period when the application is being considered, to the making of the offer and the applicant’s consideration of whether or not to accept the offer. This should include a session of financial counselling if the applicant is offered a monetary payment. Accept
67
Redress
A redress scheme should fund counselling provided by a therapist of the applicant’s choice if it is specifically requested by the applicant and in circumstances where the applicant has an established relationship with the therapist and the cost is reasonably comparable to the cost the redress scheme is paying for these services generally. Accept in principle. This is a matter for the Australian Government
68
Redress
A redress scheme should offer and fund a limited number of counselling sessions for family members of survivors if reasonably required. Accept in principle. This is a matter for the Australian Government
69
Redress

A redress scheme should take the following steps to improve transparency and accountability:

a. In addition to publicising and promoting the availability of the scheme, the scheme’s processes and time frames should be as transparent as possible. The scheme should provide up-to-date information on its website and through any funded counselling and support services and community legal centres, other relevant support services and relevant institutions.
b. If possible, the scheme should ensure that each applicant is allocated to a particular contact officer who they can speak to if they have any queries about the status of their application or the timing of its determination and so on.
c. The scheme should operate a complaints mechanism and should welcome any complaints or feedback from applicants and others involved in the scheme (for example, support services and community legal centres).
d. The scheme should provide any feedback it receives about common problems that have been experienced with applications or institutions’ responses to funded counselling and support services and community legal centres, other relevant support services and relevant institutions. It should include any suggestions on
how to improve applications or responses or ensure more timely determinations.
e. The scheme should publish data, at least annually, about:

i. the number of applications received
ii. the institutions to which the applications relate
iii. the periods of alleged abuse
iv. the number of applications determined
v. the outcome of applications
vi. the mean, median and spread of payments offered
vii. the mean, median and spread of time taken to determine the application
viii. the number and outcome of applications for review

Accept in principle
70
Redress
A redress scheme should not make any ‘findings’ that any alleged abuser was involved in any abuse. Accept
71
Redress
A redress scheme may defer determining an application for redress if the institution advises that it is undertaking internal disciplinary processes in respect of the abuse the subject of the application. A scheme may have the discretion to consider the outcome of the disciplinary process, it if is provided by the institution, in determining the application. Accept in principle
72
Redress
A redress scheme should comply with any legal requirements, and make use of any permissions, to report or disclose abuse, including to oversight agencies. Accept
73
Redress
A redress scheme should report any allegations to the police if it has reason to believe that there may be a current risk to children. If the relevant applicant does not consent to the allegations being reported to the police, the scheme should report the allegations to the police without disclosing the applicant’s identity.
Note: The issue of reporting to police, including blind reporting, will be considered further in our work in relation to criminal justice issues.
Accept
74
Redress
A redress scheme should seek to cooperate with any reasonable requirements of the police in terms of information sharing, subject to satisfying any privacy and consent requirements with applicants. Accept
75
Redress
A redress scheme should encourage any applicants who seek advice from it about reporting to police to discuss their options directly with the police. Accept
76
Redress

Institutions should seek to achieve independence in institutional redress processes by taking the following steps:

a. Institutions should provide information on the application process, including online, so that survivors do not need to approach the institution if there is an independent person with whom they can make their claim.
b. If feasible, the process of receiving and determining claims should be administered independently of the institution to minimise the risk of any appearance that the institution can influence the process or decisions.
c. Institutions should ensure that anyone they engage to handle or determine redress claims is appropriately trained in understanding child sexual abuse and its impacts and in any relevant cultural awareness issues.
d. Institutions should ensure that any processes or interactions with survivors are respectful and empathetic, including by taking into account the factors discussed in Chapter 5 concerning meetings and meeting environments.
e. Processes and interactions should not be legalistic. Any legal, medical and other relevant input should be obtained for the purposes of decision making.

Accept in principle
77
Redress
Institutions should ensure that the required independence is set out clearly in writing between the institution and any person or body the institution engages as part of its redress process. Accept in principle
78
Redress

If a survivor alleges abuse in more than one institution, the institution to which the survivor applies for redress should adopt the following process:

a. With the survivor’s consent, the institution’s redress process should approach the other named institutions to seek cooperation on the claim.
b. If the survivor consents and the relevant institutions agree, one institutional process should assess the survivor’s claim in accordance with the recommended redress elements and processes (with any necessary modifications because of the absence of a government-run scheme) and allocate contributions between the institutions.
c. If any institution no longer exists and has no successor, its share should be met by the other institution or institutions.

Accept in principle
79
Redress
Institutions should adopt the elements of redress and the general principles for providing redress recommended in Chapter 4. Accept in principle
80
Redress
Institutions should undertake, through their redress processes, to meet survivors’ needs for counselling and psychological care. A survivor’s need for counselling and psychological care should be assessed independently of the institution. Accept in principle
81
Redress
Institutions should adopt the purpose of monetary payments recommended in Chapter 7 and be guided by the recommended matrix for assessing monetary payments. Accept in principle
82
Redress
In implementing any interim arrangements for institutions to offer and provide redress, institutions should take account of our discussion of the applicability of the redress scheme processes recommended in Chapter 11. Accept in principle
83
Redress
Institutions should ensure no deeds of release are required under interim arrangements for institutions to offer and provide redress. Accept in principle
84
Redress
If the Australian Government or state and territory governments accept our recommendations and announce that they are working to establish a single national redress scheme or separate state and territory redress schemes, institutions may wish to offer smaller interim or emergency payments as an alternative to offering institutional redress
processes as interim arrangements.
Accept in principle
85
Civil litigation
State and territory governments should introduce legislation to remove any limitation period that applies to a claim for damages brought by a person where that claim is founded on the personal injury of the person resulting from sexual abuse of the person in an institutional context when the person is or was a child. Accept
86
Civil litigation
State and territory governments should ensure that the limitation period is removed with retrospective effect and regardless of whether or not a claim was subject to a limitation period in the past. Accept
87
Civil litigation
State and territory governments should expressly preserve the relevant courts’ existing jurisdictions and powers so that any jurisdiction or power to stay proceedings is not affected by the removal of the limitation period. Accept
88
Civil litigation
State and territory governments should implement these recommendations to remove limitation periods as soon as possible, even if that requires that they be implemented before our recommendations in relation to the duty of institutions and identifying a proper defendant are implemented. Accept
89
Civil litigation
State and territory governments should introduce legislation to impose a non-delegable duty on certain institutions for institutional child sexual abuse despite it being the deliberate criminal act of a person associated with the institution. Accept
90
Civil litigation

The non-delegable duty should apply to institutions that operate the following facilities or provide the following services and be owed to children who are in the care, supervision or control of the institution in relation to the relevant facility or service:

a. residential facilities for children, including residential out-of-home care facilities and juvenile detention centres but not including foster care or kinship care
b. day and boarding schools and early childhood education and care services, including long day care, family day care, outside school hours services and preschool programs
c. disability services for children
d. health services for children
e. any other facility operated for profit which provides services for children that involve the facility having the care, supervision or control of children for a period of time but not including foster care or kinship care
f. any facilities or services operated or provided by religious organisations, including activities or services provided by religious leaders, officers or personnel of religious organisations but not including foster care or kinship care.

Accept
91
Civil litigation
Irrespective of whether state and territory parliaments legislate to impose a non-delegable duty upon institutions, state and territory governments should introduce legislation to make institutions liable for institutional child sexual abuse by persons associated with the institution unless the institution proves it took reasonable steps to prevent the abuse. The ‘reverse onus’ should be imposed on all institutions, including those institutions in respect of which we do not recommend a non-delegable duty be imposed. Accept
92
Civil litigation
For the purposes of both the non-delegable duty and the imposition of liability with a reverse onus of proof, the persons associated with the institution should include the institution’s officers, office holders, employees, agents, volunteers and contractors. For religious organisations, persons associated with the institution also include religious leaders, officers and personnel of the religious organisation. Accept
93
Civil litigation
State and territory governments should ensure that the non-delegable duty and the imposition of liability with a reverse onus of proof apply prospectively and not retrospectively. Accept
94
Civil litigation

State and territory governments should introduce legislation to provide that, where a survivor wishes to commence proceedings for damages in respect of institutional child sexual abuse where the institution is alleged to be an institution with which a property trust is associated, then unless the institution nominates a proper defendant to sue that has sufficient assets to meet any liability arising from the proceedings:

a. the property trust is a proper defendant to the litigation
b. any liability of the institution with which the property trust is associated that arises from the proceedings can be met from the assets of the trust.

Accept
95
Civil litigation
The Australian Government and state and territory governments should consider whether there are any unincorporated bodies that they fund directly or indirectly to provide children’s services. If there are, they should consider requiring them to maintain insurance that covers their liability in respect of institutional child sexual abuse claims. Accept
96
Civil litigation
Government and non-government institutions that receive, or expect to receive, civil claims for institutional child sexual abuse should adopt guidelines for responding to claims for compensation concerning allegations of child sexual abuse. Accept
97
Civil litigation
The guidelines should be designed to minimise potential re-traumatisation of claimants and to avoid unnecessarily adversarial responses to claims. Accept
98
Civil litigation
The guidelines should include an obligation on the institution to provide assistance to claimants and their legal representatives in identifying the proper defendant to a claim if the proper defendant is not identified or is incorrectly identified. Accept
99
Civil litigation
Government and non-government institutions should publish the guidelines they adopt or otherwise make them available to claimants and their legal representatives. Accept

Criminal Justice Report (2017)

Number and topic

Recommendation text

Response

1
Criminal justice report
In relation to child sexual abuse, including institutional child sexual abuse, the criminal justice system should be reformed to ensure that the following objectives are met:
a) the criminal justice system operates in the interests of seeking justice for society, including the complainant and the accused
b) criminal justice responses are available for victims and survivors
c) victims and survivors are supported in seeking criminal justice responses.
Accept in principle
2
Criminal justice report
Australian governments should refer to the Steering Committee for the Report on Government Services for review the issues of:
a) How the reporting framework for police services in the Report on Government Services could be extended to include reporting on child sexual abuse offences.
b) Whether any outcome measures that would be appropriate for police investigations of child sexual abuse offences could be developed and reported on.
Accept in principle
3
Criminal justice report
Each Australian government should ensure that its policing agency:
a) recognises that a victim or survivor’s initial contact with police will be important in determining their satisfaction with the entire criminal justice response and in influencing their willingness to proceed with a report and to participate in a prosecution
b) ensures that all police who may come into contact with victims or survivors of institutional child sexual abuse are trained to:
a. have a basic understanding of complex trauma and how it can affect people who report to police, including those who may have difficulties dealing with institutions or persons in positions of authority (such as the police)
b. treat anyone who approaches the police to report child sexual abuse with consideration and respect, taking account of any relevant cultural safety issues
c) establishes arrangements to ensure that, on initial contact from a victim or survivor, police refer victims and survivors to appropriate support services.
Accept in principle
4
Criminal justice report
To encourage reporting of allegations of child sexual abuse, including institutional child sexual abuse, each Australian government should ensure that its policing agency:
a) takes steps to communicate to victims (and their families or support people where the victims are children or are particularly vulnerable) that their decision whether to participate in a police investigation will be respected – that is, victims retain the right to withdraw at any stage in the process and to decline to proceed further with police and/or any prosecution.
b) provides information on the different ways in which victims and survivors can report to police or seek advice from police on their options for reporting or not reporting abuse– this should be in a format that allows institutions and survivor advocacy and support groups and support services to provide it to victims and survivors.
c) makes available a range of channels to encourage reporting, including specialist telephone numbers and online reporting forms, and provides information about what to expect from each channel of reporting.
d) works with survivor advocacy and support groups and support services, including those working with people from culturally and linguistically diverse backgrounds and people with disability, to facilitate reporting by victims and survivors.
e) allows victims and survivors to benefit from the presence of a support person of their choice if they so wish throughout their dealings with police, provided that this will not interfere with the police investigation or risk contaminating evidence.
f) is willing to take statements from victims and survivors in circumstances where the alleged perpetrator is dead or is otherwise unlikely to be tried.
Accept in principle
5
Criminal justice report
To encourage reporting of allegations of child sexual abuse, including institutional child sexual abuse, among Aboriginal and Torres Strait Islander victims and survivors, each Australian government should ensure that its policing agency:
a) Takes the lead in developing good relationships with Aboriginal and Torres Strait Islander communities.
b) Provides channels for reporting outside of the community (such as telephone numbers and online reporting forms).
Accept in principle
6
Criminal justice report
To encourage prisoners and former prisoners to report allegations of child sexual abuse, including institutional child sexual abuse, each Australian government should ensure that its policing agency:
a) Provides channels for reporting that can be used from prison and that allow reports to be made confidentially.
b) Does not require former prisoners to report at a police station.
Accept
7
Criminal justice report
Each Australian government should ensure that its policing agency conducts investigations of reports of child sexual abuse, including institutional child sexual abuse, in accordance with the following principles:
a) While recognising the complexity of police rosters, staffing and transfers, police should recognise the benefit to victims and their families and survivors of continuity in police staffing and should take steps to facilitate, to the extent possible, continuity in police staffing on an investigation of a complaint.
b) Police should recognise the importance to victims and their families and survivors of police maintaining regular communication with them to keep them informed of the status of their report and any investigation unless they have asked not to be kept informed.
c) Particularly in relation to historical allegations of institutional child sexual abuse, police who assess or provide an investigative response to allegations should be trained to:
a. be non-judgmental and recognise that many victims of child sexual abuse will go onto develop substance abuse and mental health problems, and some may have a criminal record
b. focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant.
Accept in principle
8
Criminal justice report
State and territory governments should introduce legislation to implement Recommendation 20-1 of the report of the Australian Law Reform Commission and the New South Wales Law Reform Commission Family violence: A national legal response in relation to disclosing or revealing the identity of a mandatory reporter to a law enforcement agency. For further consideration
9
Criminal justice report
Each Australian government should ensure that its policing agency conducts investigative interviewing in relation to reports of child sexual abuse, including institutional child sexual abuse, in accordance with the following principles:
a) All police who provide an investigative response (whether specialist or generalist) to child sexual abuse should receive at least basic training in understanding sexual offending, including the nature of child sexual abuse and institutional child sexual abuse offending.
b) All police who provide an investigative response (whether specialist or generalist) to child sexual abuse should be trained to interview the complainant in accordance with current research and learning about how memory works in order to obtain the complainant’s memory of the events.
c) The importance of video recorded interviews for children and other vulnerable witnesses should be recognised, as these interviews usually form all, or most, of the complainant’s and other relevant witnesses’ evidence in chief in any prosecution.
d) Investigative interviewing of children and other vulnerable witnesses should be undertaken by police with specialist training. The specialist training should focus on:
i. a specialist understanding of child sexual abuse, including institutional child sexual abuse, and the developmental and communication needs of children and other vulnerable witnesses
ii. skill development in planning and conducting interviews, including use of appropriate questioning techniques
e) Specialist police should undergo refresher training on a periodical basis to ensure that their specialist understanding and skills remain up to date and accord with current research.
f) From time to time, experts should review a sample of video recorded interviews with children and other vulnerable witnesses conducted by specialist police for quality assurance and training purposes and to reinforce best-practice interviewing techniques.
g) State and Territory governments should introduce legislation to remove any impediments, including in relation to privacy concerns, to the use of video recorded interviews so that the relevant police officer, his or her supervisor and any persons engaged by police in quality assurance and training can review video recorded interviews for quality assurance and training purposes. This should not authorise the use of video recorded interviews for general training in a manner that would raise privacy concerns.
h) Police should continue to towards improving the technical quality of video recorded interviews so that they are technically as effective as possible in presenting the complainant’s and other witnesses’ evidence in chief.
i) Police should recognise the importance of interpreters, including for some Aboriginal and Torres Strait Islander victims, survivors and other witnesses.
j) Intermediaries should be available to assist in police investigative interviews of children and other vulnerable witnesses.
Accept in principle
10
Criminal justice report
Each Australian government should ensure that its policing agency makes decisions in relation to whether to lay charges for child sexual abuse offences in accordance with the following principles:
a) Recognising that it is important to complainants that the correct charges be laid as early as possible so that charges are not significantly downgraded at or close to trial, police should ensure that care is taken, and that early prosecution advice is sought, where appropriate, in laying charges.
b) In making decisions about whether to charge, police should not:
i. expect or require corroboration where the victim or survivor’s account does not suggest that there should be any corroboration available
ii. rely on the absence of corroboration as a determinative factor in deciding not to charge, where the victim or survivor’s account does not suggest that there should be any corroboration available, unless the prosecution service advises otherwise.
Accept
11
Criminal justice report
The Victorian Government should review the operation of section 401 of the Criminal Procedure Act 2009 (Vic) and consider amending the provision to restrict the awarding of costs against police if it appears that the risk of costs awards might be affecting police decisions to prosecute. The government of any other state or territory that has similar provisions should conduct a similar review and should consider similar amendments. Accept in principle
12
Criminal justice report
Each Australian government should ensure that, if its policing agency does not provide a specialist response to victims and survivors reporting historical child sexual abuse, its policing agency develops and implements a document in the nature of a ‘guarantee of service’ which sets out for the benefit of victims and survivors – and as a reminder to the police involved – what victims and survivors are entitled to expect in the police response to their report of child sexual abuse. The document should include information to the effect that victims and survivors are entitled to:
a) be treated by police with consideration and respect, taking account of any relevant cultural safety issues
b) have their views about whether they wish to participate in the police investigation respected
c) be referred to appropriate support services
d) contact police through a support person or organisation rather than contacting police directly if they prefer
e) have the assistance of a support person of their choice throughout their dealings with police unless this will interfere with the police investigation or risk contaminating evidence
f) have their statement taken by police even if the alleged perpetrator is dead
g) be provided with the details of a nominated person within the police service for them to contact
h) be kept informed of the status of their report and any investigation unless they do not wish to be kept informed
i) have the police focus on the credibility of the complaint or allegations rather than focusing only on the credibility of the complainant, recognising that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record.
Accept
13
Criminal justice report
Each Australian government should ensure that its policing agency responds to victims and survivors with disability, or their representatives, who report or seek to report child sexual abuse, including institutional child sexual abuse, to police in accordance with the following principles:
a) Police who have initial contact with the victim or survivor should be non-judgmental and should not make any adverse assessment of the victim or survivor’s credibility, reliability or ability to make a report or participate in a police investigation or prosecution because of their disability.
b) Police who assess or provide an investigative response to allegations made by victims and survivors with disability should focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant, and they should not make any adverse assessment of the victim or survivor’s credibility or reliability because of their disability.
c) Police who conduct investigative interviewing should make all appropriate use of any available intermediary scheme, and communication supports, to ensure that the victim or survivor is able to give their best evidence in the investigative interview.
d) Decisions in relation to whether to lay charges for child sexual abuse offences should take full account of the ability of any available intermediary scheme, and communication supports, to assist the victim or survivor to give their best evidence when required in the prosecution process.
Accept
14
Criminal justice report
In order to assist in the investigation of current allegations of institutional child sexual abuse, each Australian government should ensure that its policing agency:
a) develops and keeps under review procedures and protocols to guide police and institutions about the information and assistance police can provide to institutions where a current allegation of institutional child sexual abuse is made
b) develops and keeps under review procedures and protocols to guide the police, other agencies, institutions and the broader community on the information and assistance police can provide to children and parents and the broader community where a current allegation of institutional child sexual abuse is made.
Accept
15
Criminal justice report
The New South Wales Standard Operating Procedures for Employment Related Child Abuse Allegations and the Joint Investigation Response Team Local Contact Point Protocol should serve as useful precedents for other Australian governments to consider. Accept
16
Criminal justice report
In relation to blind reporting, institutions and survivor advocacy and support groups should:
a) be clear that, where the law requires reporting to police, child protection or another agency, the institution or group or its relevant staff member or official will report as required
b) develop and adopt clear guidelines to inform staff and volunteers, victims and their families and survivors, and police, child protection and other agencies as to the approach the institution or group will take in relation to allegations, reports or disclosures it receives that it is not required by law to report to police, child protection or another agency.
Noted
17
Criminal justice report
If a relevant institution or survivor advocacy and support group adopts a policy of reporting survivors’ details to police without survivors’ consent – that is, if it will not make blind reports – it should seek to provide information about alternative avenues for a survivor to seek support if this aspect of the institution or group’s guidelines is not acceptable to the survivor. Noted
18
Criminal justice report
If a relevant institution or survivor advocacy and support group adopts a policy of reporting survivors’ details to police without survivors’ consent – that is, if it will not make blind reports – it should seek to provide information about alternative avenues for a survivor to seek support if this aspect of the institution or group’s guidelines is not acceptable to the survivor. Noted
19
Criminal justice report
Regardless of an institution or survivor advocacy and support group’s policy in relation to blind reporting, the institution or group should provide survivors with:
a) Information to inform them about options for reporting to police
b) Support to report to police if the survivor is willing to do so.
Noted
20
Criminal justice report
Police should ensure that they review any blind reports they receive and that they are available as intelligence in relation to any current or subsequent police investigations. If it appears that talking to the survivor might assist with a police investigation, police should contact the relevant institution or survivor advocacy and support group, and police and the institution or group should cooperate to try to find a way in which the survivor will be sufficiently supported so that they are willing to speak to police. Accept in principle
21
Criminal justice report
Each state and territory government should introduce legislation to amend its persistent child sexual abuse offence so that:
a) the actus reus is the maintaining of an unlawful sexual relationship
b) an unlawful sexual relationship is established by more than one unlawful sexual act
c) the trier of fact must be satisfied beyond reasonable doubt that the unlawful sexual relationship existed but, where the trier of fact is a jury, jurors need not be satisfied of the same unlawful sexual acts
d) the offence applies retrospectively but only to sexual acts that were unlawful at the time they were committed
e) on sentencing, regard is to be had to relevant lower statutory maximum penalties if the offence is charged with retrospective application.
Accept
22
Criminal justice report
The draft provision in Appendix H provides for the recommended reform (in recommendation 21). Legislation to the effect of the draft provision should be introduced. Accept
23
Criminal justice report
State and territory governments (other than Victoria) should consider introducing legislation to establish legislative authority for course of conduct charges in relation to child sexual abuse offences if legislative authority may assist in using course of conduct charges. Noted
24
Criminal justice report
State and territory governments should consider providing for any of the two or more unlawful sexual acts that are particularised for the maintaining an unlawful sexual relationship offence to be particularised as courses of conduct For further consideration
25
Criminal justice report
To the extent they do not already have a broad grooming offence, each state and territory government should introduce legislation to amend its criminal legislation to adopt a broad grooming offence that captures any communication or conduct with a child undertaken with the intention of grooming the child to be involved in a sexual offence. Accept
26
Criminal justice report
Each state and territory government (other than Victoria) should introduce legislation to extend its broad grooming offence to the grooming of persons other than the child. Noted
27
Criminal justice report
State and territory governments should review any position of authority offences applying in circumstances where the victim is 16 or 17 years of age and the offender is in a position of authority (however described) in relation to the victim. If the offences require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), states and territories should introduce legislation to amend the offences so that the existence of the relationship is sufficient. Accept
28
Criminal justice report
State and territory governments should review any provisions allowing consent to be negatived in the event of sexual contact between a victim of 16 or 17 years of age and an offender who is in a position of authority (however described) in relation to the victim. If the provisions require more than the existence of the relationship of authority (for example, that it be ‘abused’ or ‘exercised’), state and territory governments should introduce legislation to amend the provisions so that the existence of the relationship is sufficient. Noted
29
Criminal justice report
If there is a concern that one or more categories of persons in a position of authority (however described) may be too broad and may catch sexual contact which should not be criminalised when it is engaged in by such persons with children above the age of consent, state and territory governments could consider introducing legislation to establish defences such as a similar-age consent defence. For further consideration
30
Criminal justice report
State and territory governments should introduce legislation to remove any remaining limitation periods, or any remaining immunities, that apply to child sexual abuse offences, including historical child sexual abuse offences, in a manner that does not revive any sexual offences that are no longer in keeping with community standards. Accept
31
Criminal justice report
Without limiting recommendation 30, the New South Wales Government should introduce legislation to give the repeal of the limitation period in section 78 of the Crimes Act 1900 (NSW) retrospective effect. Noted
32
Criminal justice report
Any person associated with an institution who knows or suspects that a child is being or has been sexually abused in an institutional context should report the abuse to police (and, if relevant, in accordance with any guidelines the institution adopts in relation to blind reporting under recommendation 16). Noted
33
Criminal justice report
Each state and territory government should introduce legislation to create a criminal offence of failure to report targeted at child sexual abuse in an institutional context as follows:
a) The failure to report offence should apply to any adult person who:
i. is an owner, manager, staff member or volunteer of a relevant institution this includes persons in religious ministry and other officers or personnel of religious institutions
ii. otherwise requires a Working with Children Check clearance for the purposes of their role in the institution
iii. but it should not apply to individual foster or kinship carers
b) The failure to report offence should apply if the person fails to report to police in circumstances where they know, suspect, or should have suspected (on the basis that a reasonable person in their circumstances would have suspected and it was criminally negligent for the person not to suspect), that an adult associated with the institution was sexually abusing or had sexually abused a child.
c) Relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster and kinship care services should be included (but not individual foster carers or kinship carers). Facilities and services provided by religious institutions, and any services or functions performed by persons in religious ministry, should be included.
d) If the knowledge is gained or the suspicion is or should have been formed after the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply:
i. A child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years).
ii. The person who is known to have abused a child or is or should have been suspected of abusing a child is either still associated with the institution, or known or believed to be associated with another relevant institution.
iii. The knowledge gained or the suspicion that is or should have been formed relates to abuse that may have occurred within the previous 10 years.
e) If the knowledge is gained or the suspicion is or should have been formed before the failure to report offence commences, the failure to report offence should apply if any of the following circumstances apply:
i. A child to whom the knowledge relates or in relation to whom the suspicion is or should have been formed is still a child (that is, under the age of 18 years) and is still associated with the institution (that is, they are still in the care, supervision or control of the institution).
ii. The person who is known to have abused a child or is or should have suspected of abusing a child is either:
• Still associated with the institution
• Known or believed to be associated with another relevant institution
For further consideration
34
Criminal justice report
State and territory governments should:
a) ensure that they have systems in place in relation to their mandatory reporting scheme and any reportable conduct scheme to ensure that any reports made under those schemes that may involve child sexual abuse offences are brought to the attention of police
b) include appropriate defences in the failure to report offence to avoid duplication of reporting under mandatory reporting and any reportable conduct schemes.
For further consideration
35
Criminal justice report
Each state and territory government should ensure that the legislation it introduces to create the criminal offence of failure to report recommended in recommendation 33 addresses religious confessions as follows:
a) The criminal offence of failure to report should apply in relation to knowledge gained or suspicions that are or should have been formed, in whole or in part, on the basis of information disclosed in or in connection with a religious confession.
b) The legislation should exclude any existing excuse, protection or privilege in relation to religious confessions to the extent necessary to achieve this objective.
c) Religious confession should be defined to include a confession about the conduct of a person associated with the institution made by a person to a second person who is in religious ministry in that second person’s professional capacity according to the ritual of the church or religious denomination concerned.
For further consideration
36
Criminal justice report
State and territory governments should introduce legislation to create a criminal offence of failure to protect a child within a relevant institution from a substantial risk of sexual abuse by an adult associated with the institution as follows:
a) The offence should apply where:
i. an adult person knows that there is a substantial risk that another adult person associated with the institution will commit a sexual offence against:
• a child under 16
• a child under 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child
ii. the person has the power or responsibility to reduce or remove the risk
iii. the person negligently fails to reduce or remove the risk.
b) The offence should not be able to be committed by individual foster carers or kinship carers.
c) Relevant institutions should be defined to include institutions that operate facilities or provide services to children in circumstances where the children are in the care, supervision or control of the institution. Foster care and kinship care services should be included, but individual foster carers and kinship carers should not be included. Facilities and services provided by religious institutions, and any service or functions performed by persons in religious ministry, should be included.
d) State and territory governments should consider the Victorian offence in section 49C of the Crimes Act 1958 (Vic) as a useful precedent, with an extension to include children of 16 or 17 years of age if the person associated with the institution is in a position of authority in relation to the child.
Accept in principle
37
Criminal justice report
All Australian Directors of Public Prosecutions, with assistance from the relevant government in relation to funding, should ensure that prosecution responses to child sexual abuse are guided by the following principles:
a) All prosecution staff who may have professional contact with victims of institutional child sexual abuse should be trained to have a basic understanding of the nature and impact of child sexual abuse – and institutional child sexual abuse in particular – and how it can affect people who are involved in a prosecution process, including those who may have difficulties dealing with institutions or person in positions of authority.
b) While recognising the complexity of prosecution staffing and court timetables, prosecution agencies should recognise the benefit to victims and their families and survivors of continuity in prosecution team staffing and should take steps to facilitate, to the extent possible, continuity in staffing of the prosecution team involved in a prosecution.
c) Prosecution agencies should continue to recognise the importance to victims and their families and survivors of the prosecution agency maintaining regular communication with them to keep them informed of the status of the prosecution unless they have asked not to be kept informed.
d) Witness Assistance Services should be funded and staffed to ensure that they can perform their task of keeping victims and their families and survivors informed and ensuring that they are put in contact with relevant support services, including staff trained to provide a culturally appropriate service for Aboriginal and Torres Strait Islander victims and survivors. Specialist services for children should also be considered.
e) Particularly in relation to historical allegations of institutional child sexual abuse, prosecution staff who are involved in giving early charge advice or in prosecuting child sexual abuse matters should be trained to:
i. be non-judgmental and recognise that many victims of child sexual abuse will go on to develop substance abuse and mental health problems, and some may have a criminal record
ii. focus on the credibility of the complaint or allegation rather than focusing only on the credibility of the complainant.
f) Prosecution agencies should recognise that children with disability are at a significantly increased risk of abuse, including child sexual abuse. Prosecutors should take this increased risk into account in any decisions they make in relation to prosecuting child sexual abuse offences.
Accept
38
Criminal justice report
Each state and territory government should facilitate the development of standard material to provide to complainants or other witnesses in child sexual abuse trials to better inform them about giving evidence. The development of the standard material should be led by Directors of Public Prosecutions in consultation with Witness Assistance Services, public defenders (where available), legal aid services and representatives of the courts to ensure that it:
a) is likely to be of adequate assistance for complainants who are not familiar with criminal trials and giving evidence
b) is fair to the accused as well as to the prosecution
c) does not risk rehearsing or coaching the witness.
Accept
39
Criminal justice report
All Australian Directors of Public Prosecutions should ensure that prosecution charging and plea decisions in prosecutions for child sexual abuse offences are guided by the following principles:
a) Prosecutors should recognise the importance to complainants of the correct charges being laid as early as possible so that charges are not significantly downgraded or withdrawn at or close to trial. Prosecutors should provide early advice to police on appropriate charges to lay when such advice is sought.
b) Regardless of whether such advice has been sought, prosecutors should confirm the appropriateness of the charges as early as possible once they are allocated the prosecution to ensure that the correct charges have been laid and to minimise the risk that charges will have to be downgraded or withdrawn closer to the trial date.
c) While recognising the benefit of securing guilty pleas, prosecution agencies should also recognise that it is important to complainants – and to the criminal justice system – that the charges for which a guilty plea is accepted reasonably reflect the true criminality of the abuse they suffered.
d) Prosecutors must endeavour to ensure that they allow adequate time to consult the complainant and the police in relation to any proposal to downgrade or withdraw charges or to accept a negotiated plea and that the complainant is given the opportunity to obtain assistance from relevant witness assistance officers or other advocacy and support services before they give their opinion on the proposal. If the complainant is a child, prosecutors must endeavour to ensure that they give the child the opportunity to consult their carer or parents unless the child does not wish to do so.
Accept
40
Criminal justice report
Each Australian Director of Public Prosecutions should:
a) have comprehensive written policies for decision-making and consultation with victims and police
b) publish all policies online and ensure that they are publicly available
c) provide a right for complainants to seek written reasons for key decisions, without detracting from an opportunity to discuss reasons in person before written reasons are provided.
Accept
41
Criminal justice report
Each Australian Director of Public Prosecutions should establish a robust and effective formalised complaints mechanism to allow victims to seek internal merits review of key decisions. Accept in principle
42
Criminal justice report
Each Australian Director of Public Prosecutions should establish robust and effective internal audit processes to audit their compliance with policies for decision-making and consultation with victims and police. Accept in principle
43
Criminal justice report
Each Australian Director of Public Prosecutions should publish the existence of their complaints mechanism and internal audit processes and data on their use and outcomes online and in their annual reports. Accept in principle
44
Criminal justice report
In order to ensure justice for complainants and the community, the laws governing the admissibility of tendency and coincidence evidence in prosecutions for child sexual abuse offences should be reformed to facilitate greater admissibility and cross-admissibility of tendency and coincidence evidence and joint trials. For further consideration
45
Criminal justice report
Tendency or coincidence evidence about the defendant in a child sexual offence prosecution should be admissible:
a) if the court thinks that the evidence will, either by itself or having regard to the other evidence, be ‘relevant to an important evidentiary issue’ in the proceeding, with each of the following kinds of evidence defined to be ‘relevant to an important evidentiary issue’ in a child sexual offence proceeding:
i. evidence that shows a propensity of the defendant to commit particular kinds of offences if the commission of an offence of the same or a similar kind is in issue in the proceeding
ii. evidence that is relevant to any matter in issue in the proceeding if the matter concerns an act or state of mind of the defendant and is important in the context of the proceeding as a whole
b) unless, on the application of the defendant, the court thinks, having regard to the particular circumstances of the proceeding, that both:
i. admission of the evidence is more likely than not to result in the proceeding being unfair to the defendant
ii. if there is a jury, the giving of appropriate directions to the jury about the relevance and use of the evidence will not remove the risk.
For further consideration
46
Criminal justice report
Common law principles or rules that restrict the admission of propensity or similar fact evidence should be explicitly abolished or excluded in relation to the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. For further consideration
47
Criminal justice report
Issues of concoction, collusion or contamination should not affect the admissibility of tendency or coincidence evidence about the defendant in a child sexual offence prosecution. The court should determine admissibility on the assumption that the evidence will be accepted as credible and reliable, and the impact of any evidence of concoction, collusion or contamination should be left to the jury or other fact-finder. For further consideration
48
Criminal justice report
Tendency or coincidence evidence about a defendant in a child sexual offence prosecution should not be required to be proved beyond reasonable doubt. Accept
49
Criminal justice report
Evidence of:
a) the defendant’s prior convictions
b) acts for which the defendant has been charged but not convicted (other than acts for which the defendant has been acquitted)
should be admissible as tendency or coincidence evidence if it otherwise satisfies the test for admissibility of tendency or coincidence evidence about a defendant in a child sexual offence prosecution
For further consideration
50
Criminal justice report
Australian governments should introduce legislation to make the reforms we recommend to the rules governing the admissibility of tendency and coincidence evidence. For further consideration
51
Criminal justice report
The draft provisions in Appendix N provide for the recommended reforms for Uniform Evidence Act jurisdictions. Legislation to the effect of the draft provisions should be introduced for Uniform Evidence Act jurisdictions and non–Uniform Evidence Act jurisdictions. For further consideration
52
Criminal justice report
State and territory governments should ensure that the necessary legislative provisions and physical resources are in place to allow for the prerecording of the entirety of a witness’s evidence in child sexual abuse prosecutions. This should include both:
a) in summary and indictable matters, the use of a pre-recorded investigative interview as some or all of the witness’s evidence in chief
b) in matters tried on indictment, the availability of pre-trial hearings to record all of a witness’s evidence, including cross-examination and re-examination, so that the evidence is taken in the absence of the jury and the witness need not participate in the trial itself.
Accept in principle
53
Criminal justice report
Full pre-recording should be made available for:
a) all complainants in child sexual abuse prosecutions
b) any other witnesses who are children or vulnerable adults
c) any other prosecution witness that the prosecution considers necessary.
Accept in principle
54
Criminal justice report
Where the prerecording of cross-examination is used, it should be accompanied by ground rules hearings to maximise the benefits of such a procedure. Accept in principle
55
Criminal justice report
State and territory governments should work with courts to improve the technical quality of closed circuit television and audiovisual links and the equipment used and staff training in taking and replaying prerecorded and remote evidence. Accept in principle
56
Criminal justice report
State and territory governments should introduce legislation to require the audiovisual recording of evidence given by complainants and other witnesses that the prosecution considers necessary in child sexual abuse prosecutions, whether tried on indictment or summarily, and to allow these recordings to be tendered and relied on as the relevant witness’s evidence in any subsequent trial or retrial. The legislation should apply regardless of whether the relevant witness gives evidence live in court, via closed circuit television or in a prerecorded hearing. Accept in principle
57
Criminal justice report
State and territory governments should ensure that the courts are adequately resourced to provide this facility, in terms of both the initial recording and its use in any subsequent trial or retrial. Accept in principle
58
Criminal justice report
If it is not practical to record evidence given live in court in a way that is suitable for use in any subsequent trial or retrial, prosecution guidelines should require that the fact that a witness may be required to give evidence again in the event of a retrial be discussed with witnesses when they make any choice as to whether to give evidence via prerecording, closed circuit television or in person. Accept in principle
59
Criminal justice report
State and territory governments should establish intermediary schemes similar to the Registered Intermediary Scheme in England and Wales which are available to any prosecution witness with a communication difficulty in a child sexual abuse prosecution. Governments should ensure that the scheme:
a) requires intermediaries to have relevant professional qualifications to assist in communicating with vulnerable witnesses
b) provides intermediaries with training on their role and in understanding that their duty is to assist the court to communicate with the witness and to be impartial
c) makes intermediaries available at both the police interview stage and trial stage
d) enables intermediaries to provide recommendations to police and the court on how best to communicate with the witness and to intervene in an interview or examination where they observe a communication breakdown.
Accept in principle
60
Criminal justice report
State and territory governments should work with their courts administration to ensure that ground rules hearings are able to be held – and are in fact held – in child sexual abuse prosecutions to discuss the questioning of prosecution witnesses with specific communication needs, whether the questioning is to take place via a prerecorded hearing or during the trial. This should be essential where a witness intermediary scheme is in place and should allow, at a minimum, a report from an intermediary to be considered. Accept
61
Criminal justice report
The following special measures should be available in child sexual abuse prosecutions for complainants, vulnerable witnesses and other prosecution witnesses where the prosecution considers it necessary:
a) giving evidence via closed circuit television or audiovisual link so that the witness is able to give evidence from a room away from the courtroom
b) allowing the witness to be supported when giving evidence, whether in the courtroom or remotely, including, for example, through the presence of a support person or a support animal or by otherwise creating a more child-friendly environment
c) if the witness is giving evidence in court, using screens, partitions or one-way glass so that the witness cannot see the accused while giving evidence
d) clearing the public gallery of a courtroom during the witness’s evidence
e) the judge and counsel removing their wigs and gowns.
Accept
62
Criminal justice report
State and territory governments should introduce legislation to allow a child’s competency to give evidence in child sexual abuse prosecutions to be tested as follows:
a) Where there is any doubt about a child’s competence to give evidence, a judge should establish the child’s ability to understand basic questions asked of them by asking simple, non-theoretical questions – for example, about their age, school, family et cetera.
b) Where it does not appear that the child can give sworn evidence, the judge should simply ask the witness for a promise to tell the truth and allow the examination of the witness to proceed.
For further consideration
63
Criminal justice report
State and territory governments should provide adequate interpreting services such that any witness in a child sexual abuse prosecution who needs an interpreter is entitled to an interpreter who has sufficient expertise in their primary language, including sign language, to provide an accurate and impartial translation. Accept in principle
64
Criminal justice report
State and territory governments should consider or reconsider the desirability of partial codification of judicial directions now that Victoria has established a precedent from which other jurisdictions could develop their own reforms. Noted
65
Criminal justice report
Each state and territory government should review its legislation and introduce any amending legislation necessary to ensure that it has the following provisions in relation to judicial directions and warnings:
a) Delay and credibility: Legislation should provide that:
i. there is no requirement for a direction or warning that delay affects the complainant’s credibility
ii. the judge must not direct, warn or suggest to the jury that delay affects the complainant’s credibility unless the direction, warning or suggestion is requested by the accused and is warranted on the evidence in the particular circumstances of the trial
iii. in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’.
b) Delay and forensic disadvantage: Legislation should provide that:
i. there is no requirement for a direction or warning as to forensic disadvantage to the accused
ii. the judge must not direct, warn or suggest to the jury that delay has caused forensic disadvantage to the accused unless the direction, warning or suggestion is requested by the accused and there is evidence that the accused has suffered significant forensic disadvantage
iii. the mere fact of delay is not sufficient to establish forensic disadvantage
iv. in giving any direction, warning or comment, the judge should inform the jury of the nature of the forensic disadvantage suffered by the accused
v. in giving any direction, warning or comment, the judge must not use expressions such as ‘dangerous or unsafe to convict’ or ‘scrutinise with great care’
c) Uncorroborated evidence: Legislation should provide that the judge must not direct, warn or suggest to the jury that it is ‘dangerous or unsafe to convict’ on the uncorroborated evidence of the complainant or that the uncorroborated evidence of the complainant should be ‘scrutinised with great care’.
d) Children’s evidence: Legislation should provide that:
i. the judge must not direct, warn or suggest to the jury that children as a class are unreliable witnesses
ii. the judge must not direct, warn or suggest to the jury that it would be ‘dangerous or unsafe to convict’ on the uncorroborated evidence of a child or that the uncorroborated evidence of a child should be ‘scrutinised with great care’
iii. the judge must not give a direction or warning about, or comment on, the reliability of a child’s evidence solely on account of the age of the child.
Accept
66
Criminal justice report
The New South Wales Government, the Queensland Government and the government of any other state or territory in which Markuleski directions are required should consider introducing legislation to abolish any requirement for such directions. Accept
67
Criminal justice report
State and territory governments should support and encourage the judiciary, public prosecutors, public defenders, legal aid and the private Bar to implement regular training and education programs for the judiciary and legal profession in relation to understanding child sexual abuse and current social science research in relation to child sexual abuse. Accept in principle
68
Criminal justice report
Relevant Australian governments should ensure that bodies such as:
e) the Australasian Institute of Judicial Administration
f) the National Judicial College of Australia
g) the Judicial Commission of New South Wales
h) the Judicial College of Victoria
are adequately funded to provide leadership in making relevant information and training available in the most effective forms to the judiciary and, where relevant, the broader legal profession so that they understand and keep up to date with current social science research that is relevant to understanding child sexual abuse.
Accept in principle
69
Criminal justice report
In any state or territory where provisions such as those in sections 79(2) and 108C of the Uniform Evidence Act or their equivalent are not available, the relevant government should introduce legislation to allow for expert evidence in relation to the development and behaviour of children generally and the development and behaviour of children who have been victims of child sexual abuse offences. Accept
70
Criminal justice report
Each state and territory government should lead a process to consult the prosecution, defence, judiciary and academics with relevant expertise in relation to judicial directions containing educative information about children and the impact of child sexual abuse, with a view to settling standard directions and introducing legislation as soon as possible to authorise and require the directions to be given. The National Child Sexual Assault Reform Committee’s recommended mandatory judicial directions and the Victorian Government’s proposed directions on inconsistencies in the complainant’s account should be the starting point for the consultation process, subject to the removal of the limitation in the third direction recommended by the National Child Sexual Assault Reform Committee in relation to children’s responses to sexual abuse so that it can apply regardless of the complainant’s age at trial. Accept
71
Criminal justice report
In advance of any more general codification of judicial directions, each state and territory government should work with the judiciary to identify whether any legislation is required to permit trial judges to assist juries by giving relevant directions earlier in the trial or to otherwise assist juries by providing them with more information about the issues in the trial. If legislation is required, state and territory governments should introduce the necessary legislation. Accept
72
Criminal justice report
Each state and territory government should work with its courts, prosecution, legal aid and policing agencies to ensure that delays are reduced and kept to a minimum in prosecutions for child sexual abuse offences, including through measures to encourage:
a) the early allocation of prosecutors and defence counsel
b) the Crown – including subsequently allocated Crown prosecutors – to be bound by early prosecution decisions
c) appropriate early guilty pleas
d) case management and the determination of preliminary issues before trial.
Accept in principle
73
Criminal justice report
In those states and territories that have a qualified privilege in relation to sexual assault communications, the relevant state or territory government should work with its courts, prosecution and legal aid agencies to implement any necessary procedural or case management reforms to ensure that complainants are effectively able to claim the privilege without risking delaying the trial. Accept in principle
74
Criminal justice report
All state and territory governments (other than New South Wales and South Australia) should introduce legislation to provide that good character be excluded as a mitigating factor in sentencing for child sexual abuse offences where that good character facilitated the offending, similar to that applying in New South Wales and South Australia. Accept
75
Criminal justice report
State and territory governments should introduce legislation to require sentencing courts, when setting a sentence in relation to child sexual abuse offences involving multiple discrete episodes of offending and/or where there are multiple victims, to indicate the sentence that would have been imposed for each offence had separate sentences been imposed. Accept in principle
76
Criminal justice report
State and territory governments should introduce legislation to provide that sentences for child sexual abuse offences should be set in accordance with the sentencing standards at the time of sentencing instead of at the time of the offending, but the sentence must be limited to the maximum sentence available for the offence at the date when the offence was committed. Accept
77
Criminal justice report
State and territory governments, in consultation with their respective Directors of Public Prosecutions, should improve the information provided to victims and survivors of child sexual abuse offences to:
a) give them a better understanding of the role of the victim impact statement in the sentencing process
b) better prepare them for making a victim impact statement, including in relation to understanding the sort of content that may result in objection being taken to the statement or parts of it.
Accept
78
Criminal justice report
State and territory governments should ensure that, as far as reasonably practicable, special measures to assist victims of child sexual abuse offences to give evidence in prosecutions are available for victims when they give a victim impact statement, if they wish to use them. Accept
79
Criminal justice report
State and territory governments should introduce legislation, where necessary, to expand the Director of Public Prosecution’s right to bring an interlocutory appeal in prosecutions involving child sexual abuse offences so that the appeal right:
a) applies to pre-trial judgments or orders and decisions or rulings on the admissibility of evidence, but only if the decision or ruling eliminates or substantially weakens the prosecution’s case
b) is not subject to a requirement for leave
c) extends to ‘no case’ rulings at trial.
Accept in principle
80
Criminal justice report
State and territory governments should work with their appellate court and the Director of Public Prosecutions to ensure that the court is sufficiently well resourced to hear and determine interlocutory appeals in prosecutions involving child sexual abuse offences in a timely manner. Accept in principle
81
Criminal justice report
Directors of Public Prosecutions should amend their prosecution guidelines, where necessary, in relation to the decision as to whether there should be a retrial following a successful conviction appeal in child sexual abuse prosecutions. The guidelines should require that the prosecution consult the complainant and relevant police officer before the Director of Public Prosecutions decides whether to retry a matter. Accept
82
Criminal justice report
State and territory governments should ensure that a relevant government agency, such as the Office of the Director of Public Prosecutions, is monitoring the number, type and success rate of appeals in child sexual abuse prosecutions and the issues raised to:
a) identify areas of the law in need of reform
b) ensure any reforms - including reforms arising from the Royal Commission’s recommendations in relation to criminal justice, if implemented – are working as intended.
Accept
83
Criminal justice report
State and territory governments (other than the Northern Territory) should give further consideration to whether the abolition of the presumption that a male under the age of 14 years is incapable of having sexual intercourse should be given retrospective effect and whether any immunity which has arisen as a result of the operation of the presumption should be abolished. State and territory governments (other than the Northern Territory) should introduce any legislation they consider necessary as a result of this consideration. For further consideration
84
Criminal justice report
State and territory governments should review their legislation – and if necessary introduce amending legislation – to ensure that complainants in child sexual abuse prosecutions do not have to give evidence on any additional occasion in circumstances where the accused, or one of two or more co-accused, is a juvenile at the time of prosecution or was a juvenile at the time of the offence. For further consideration
85
Criminal justice report
State and territory governments should keep the interaction of:
a) their legislation relevant to regulatory responses to institutional child sexual abuse
b) their crimes legislation and the crimes legislation of all other Australian jurisdictions, particularly in relation to child sexual abuse offences and sex offender registration
under regular review to ensure that their regulatory responses work together effectively with their relevant crimes legislation and the relevant crimes legislation of all other Australian jurisdictions in the interests of responding effectively to institutional child sexual abuse.
Accept

 

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