The purpose of this paper is twofold: first, it presents an overview of the
major legislative changes in the field of child protection in recent years;
secondly, it sets out the structures, powers and functions of the relevant
oversight or supervisory agencies, with a view to producing something like a
'snap-shot' of the system currently in place. Both the paper's description of
that system, as well as its analysis of the reforms which have occurred in
recent years, are set against the background of the recommendations made by the
historic Wood Royal Commission paedophile inquiry, which reported in August
1997. A more immediate background issue is the current debate about the child
protection jurisdiction of the Community Services Commission and the proposal
to merge the Commission with the Ombudsman's Office. The paper's main findings
are as follows:
- The Wood Royal Commission found that a multitude of agencies
and organisations existed in NSW with an interest in child protection and that
the relationship between these bodies could be bewildering in its complexity.
The Royal Commission's key response to this finding was its recommendation that
a supervisory agency be created in the field of child protection, in the form
of a Children's Commission, which should have 'actual and perceived
independence from government and the relevant departments and agencies
delivering services, so that it can report fearlessly and objectively on
matters within its field'. This proposed Children's Commission 'would take over
the functions previously carried out by the Community Services Commission (as
they relate to children) and all of the existing functions of the Child
Protection Council' (pages 9-11).
- As established in July 1999 under the Commission for
Children and Young People Act 1998, the NSW Children's Commission is
not the organisation envisaged by the Royal Commission, neither in terms of the
scope of its powers, nor in respect to its independence from Ministerial
control. Where it most closely approximates the Wood model is in its employment
screening functions, as well as in its general advisory, advocacy and
educational role. As a co-ordinating and watchdog body over the child
protection system generally, or as an investigatory and research agency, the
Children's Commission is quite different to the Royal Commission model (pages
28-29).
- Closer to the Wood Royal Commission model is the Queensland
Commission for Children and Young People, established under the Commission
for Children and Young People Act 2000 (Qld). Unlike its NSW equivalent,
the Queensland model incorporates the receipt and investigation of complaints
(pages 26-28).
- At present, the Child Death Review Team, which was
established in 1995, is constituted under Part 7A and Schedule 2A of the
Children (Care and Protection) Act 1987. As amended in 1998, this Part
is almost identical to the equivalent but as yet uncommenced provisions under
the Children and Young Persons (Care and Protection) Act 1998 (Chapter
11 and Schedule 1). The Children's Commissioner is the Team Convenor and the
Commission now provides research and other support to the Child Death Review
Team. The Minister for Community Services has asked the Children's Commission
to conduct a legislative review of the Child Death Review Team (page 29).
- Since the Minister for Community Services received advice from
the Crown Solicitor's Office in November 2000, calling into question the
jurisdiction of the Community Services Commission over child protection
matters, this area of law has been in a state of disarray. With the release to
stakeholder organisations of plans to merge the Commission with the Ombudsman's
Office, it seems that change is imminent (pages 34-36).
- The position many in the community services sector now find
themselves in is that, having successfully argued against the absorption of the
Community Services Commission into the Children's Commission in 1998, they must
now formulate a view on its potential merger with the Ombudsman's Office. Some
of the sector's concerns in this respect are canvassed. In terms of powers, a
key issue is whether, as a division of the Ombudsman's Office, the reformed
Community Services Commission would have the full inquiry powers granted under
the Ombudsman Act (page 42).
- The Wood Royal Commission recommended the establishment of a
Children's Guardian to operate as part of its proposed Children's
Commission. This integrated model has not been adopted. Instead, the Children's
Guardian is established as a statutory office holder under Chapter 10 of the
Children and Young Persons (Care and Protection) Act 1998. The Office of
the Children's Guardian was established in December 2000 and, shortly
thereafter, the first Children's Guardian, Linda Mallett, was appointed in
January 2001. However, although a Children's Guardian has been appointed, the
Office's functions have yet to be proclaimed to commence (pages 43-44).
- The role played by the Ombudsman in child protection has
altered significantly with the insertion of Part 3A into the Ombudsman Act
1974, which was proclaimed to commence on 7 May 1999 (page 48).
- The child-related employment screening scheme - the Working
with Children Check - is established under 4 pieces of legislation: (a) the
Child Protection (Prohibited Employment) Act 1998, which commenced on 3
July 2000, sets out which persons are prohibited from working in positions of
child-related employment, the duties and penalties applying to employees and
employers, plus the mechanisms in place for exemption and appeal; (b) the
Child Protection (Offenders Registration) Act 2000 applies to the extent
that a 'registrable person' under this Act is also a 'prohibited person' under
the Child Protection (Prohibited Employment) Act 1998 and cannot
therefore work in a child-related employment; (c) Part 7, 'Employment
screening', of the Commission for Children and Young People Act 1998,
which sets out the procedures for checking current and future employees and for
the issuing of guidelines by the Minister relating to privacy and other
matters; and (d) Part 3A, 'Child protection', of the Ombudsman Act which
sets out the scrutiny and investigation responsibilities of the Ombudsman over
the employment screening scheme (pages 49-50).
- The Child Protection (Offenders Registration) Act 2000
commenced on 15 October 2001. The Act requires persons sentenced for child sex
offences (and other specified serious offences against children) to keep local
police informed of changes to their name, address, employment and motor vehicle
details for a specified period after their release into the community. A
register of these offenders is to be established and maintained by the
Commissioner of Police. This register is to be referred to as the NSW Police
Service Child Protection Register (page 60).
