Catholic Church under the spotlight

Since 2013 the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) has conducted a raft of public hearings involving a range of institutions, including churches, schools, sporting organisations, and government departments.

This week, the spotlight centres on the practices of Catholic Church authorities in Australia. This is the 50th public hearing conducted by the Royal Commission and the 16th public hearing dealing with abuse in the Catholic Church.

The scope and purpose of the public hearing is to inquire into:

  • the current policies and procedures of Catholic Church authorities in Australia in relation to child protection and child-safe standards, including responding to allegations of child sexual abuse;
  • factors that may have contributed to the occurrence of child sexual abuse at Catholic Church institutions in Australia;
  • factors that may have affected the institutional response of Catholic Church authorities in Australia to child sexual abuse;
  • the responses of Catholic Church authorities in Australia to relevant case study report(s) and other Royal Commission reports;
  • data relating to the extent of claims of child sexual abuse in the Catholic Church of Australia; and
  • any related matters.

Shockingly, the Royal Commission has been informed that almost 4500 people have made claims of child sexual abuse over the past 35 years to Catholic Church institutions. Whilst the evidence which has come to light in these hearings is confronting (to say the least), in learning about the abuse and failings of institutions in the past, institutions are in a stronger position to effectively respond to allegations of abuse and (most importantly) stop abuse from occurring in the first place.

The public hearing is expected to run for three weeks and a report will be published in a few months.

The lawyers at Moores assist faith-based organisations across Australia create a child safe environment and achieve legal compliance. If you’d like to talk to us further about how we can help your organisation, please do not hesitate to contact our experts – Catherine Brooks, Principal, or Skye Rose, Principal, on (03) 9843 2100 or via email: cbrooks@moores.com.au & srose@moores.com.au.

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ALERT – New Bill means your child protection documents may need to be revisited

The Andrews’ Government has continued to prioritise child safety by proposing another piece of legislation. This new Bill, which is set to be passed early this year, introduces a reporting scheme whereby employers are required to report child abuse allegations to a central body if the allegation is made against one of its employees. This new Bill is aimed at better protecting children from abuse, but the changes will also mean that organisations are required to revisit their existing child protection policies and procedures. This article sets out what you need to know.

What is the new Bill?

The Children Legislation Amendment (Reportable Conduct) Bill 2016 (“Bill”) amends the Child Wellbeing and Safety Act 2005 (Vic) to establish a new reporting scheme (“Scheme”). The Scheme requires:

  • applicable organisations to report allegations of child abuse made against its employees to the Commission for Children and Young People (“Commission”); and
  • information to be shared between the Commission, the head of the applicable organisation, the regulator, Victoria Police, the Department of Justice and Regulation and any other prescribed person or body (as necessary).

The Scheme aims to centralise and streamline civil and criminal reporting so that concerns of child abuse are appropriately shared with relevant agencies.

We note the Scheme is in addition to the obligations your organisation may have under the Child Safe Standards.

Will your organisation be caught by the new reporting scheme?

Under the Bill, organisations will be caught by the Scheme (i.e. be considered “applicable organisations”) over three separate stages:

  • Phase 1 entities – 1 July 2017*;
  • Phase 2 entities – 1 January 2018*; and
  • Phase 3 entities – 1 January 2019*.

*Please note that these dates have been proposed by the Commission, but are not locked in at this stage.

In terms of who is caught by each phase, the first phase will include the following organisations:

  • Schools;
  • Disability service providers that provide residential services for children;
  • Mental health service providers that provide in-patient beds;
  • Organisations that receive state funding to provide drug or alcohol treatment services that provides in-patient beds;
  • Organisations that receive state funding to provide housing services or other assistance to homeless persons that provide overnight beds for children;
  • Organisations that receive state funding to provide child protection services; and
  • Out of home care service providers.

What enforcement powers are given to the Commission?

Under the Bill, the Commission is provided with broad powers to enforce compliance with the Scheme. This includes the ability to:

  • request relevant information and documents from organisations;
  • visit an organisation’s premises to investigate a child abuse allegation, the organisation’s response to an allegation, and/or inspect a document;
  • conduct reviews of an organisation’s child safety practices;
  • issue notices for an organisation to comply with the Scheme;
  • seek a declaration from a court that an organisation has not complied with a notice;
  • apply to the court for a pecuniary penalty to be issued against a non-compliant organisation (up to a maximum of $9,000).

Although you may not see the $9,000 penalty as a large deterrent, in our opinion, the most serious consequence is the ability for a court to declare that an organisation has not complied with the Scheme. This is because:

  • the organisation’s reputation will likely be considerably damaged for exposing children to risk of child abuse; and
  • the organisation will be legally exposed to a claim (e.g. negligence) if a declaration was handed down, the organisation failed to comply with the Scheme, and a child were to be abused.

What this could mean for your organisation?

If your organisation is caught by the Scheme, you will be required to ensure that your organisation is acting in compliance with the Scheme.

Aside from making reports to the Commission when required, and complying with the Scheme, from a practical standpoint you will also need to:

  • train your Board, executive, employees, contractors and volunteers on the reporting scheme so that they know how and when they should make a report to the Commission; and
  • amend your child protection policy and procedure to reflect the Scheme.

Will the new Bill be passed?

The Bill is still very much in the early stages of the process, with the second reading of the new Bill moved as recently as 7 December 2016. However, given the ease at which the other pieces of legislation in this space have been passed, it is likely that the Bill will be passed early this year.

Next steps

We recommend that you review your existing child protection documents and ensure that they accurately reflect and comply with the Scheme after it is passed. If you do not yet have any child protection documents in place, please refer to our Child Protection Toolkit for further information about what is required under the Child Safe Standards and how we can help your organization.

Given the constant changes in this area, we will ensure we keep you up to date with any new developments. To receive our latest alerts in this space, and receive invitations to our briefings on the topic, please subscribe here.

If you’d like to talk to us further about how we can help your organisation prepare for the Scheme or comply with the Child Safe Standards, please do not hesitate to contact our experts – Catherine Brooks, Principal, or Skye Rose, Principal, on (03) 9843 2100 or via email: cbrooks@moores.com.au & srose@moores.com.au.

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NDIS: Top ten employment issues for 2017

The introduction of the National Disability Insurance Scheme (“NDIS”) in July 2016 has thrown up significant challenges for disability service providers wanting to navigate (or even enter) the sector.

The shift away from block government funding for standardised services to consumer-directed care has prompted some radical changes in service design, workforce planning and risk management practices.

Despite a large amount of information out there on the NDIS, remarkably little is available on emerging workplace issues for NDIS providers and how these issues should be addressed. If we know one thing, it’s that providers that fail to adapt to the rapidly changing market face an uncertain future.

With this in mind, the New Year provides a timely opportunity to outline our predictions for the top ten employment issues that NDIS providers will face in 2017.

1. Misclassifying employees as contractors

Given the NDIS will change how your organisation operates and provides services (from standardised services in institutions to individualised services in residential settings), you may have to change the manner in which you engage your workers. For example, under the NDIS you may need to change:

  • The level of control you have over your workers;
  • The level of supervision of workers (which may now have less frequent and arm’s length supervision by phone, rather than supervision in person);
  • Who provides the equipment for the workers to provide the services;
  • The level of risk that the workers take on; and
  • How the workers are paid.

Due to these changes, it will be important for you to reassess whether the workers you engage are employees or independent contractors, and the contractual arrangements that formalise that relationship. If you misclassify an employee as an independent contractor, you would be at risk of facing whopping underpayment claims and fines of up to $54,000 per contravention. In addition, you could also face personal fines of up $10,800 if you are found to have been personally “involved” in the contravention.

In many instances the classification question will be clear. But for the less clear cut situations, we recommend you seek legal advice.

2. Selecting the right Modern Award

Finding out which Modern Award (if any) will cover your employees can be a challenging task in any situation. However, in the NDIS space it can be particularly difficult. This is because of the often flexible nature of the work, the qualifications and training required for certain roles, and the numerous Modern Awards that have adjacent coverage. We have also seen situations where an employee may be covered by a Modern Award for one service they provide, and then a different Modern Award for another service based on the age of the person to whom the service is provided. From an administrative perspective this can be extremely difficult to manage, yet no more difficult than responding to an underpayment claim or legal dispute about an employee’s award classification.

Our advice in dealing with these issues is to do the heavy lifting up front and make sure that the Modern Award you are using is the right one. Otherwise, you could be facing large underpayment claims, fines of up to $54,000 per contravention, and personal fines of up to $10,800.

3. Understanding your occupational health and safety obligations

Changing consumer demand for disability services in a residential setting may mean that the services your workers provide will be unsupervised at the client’s home. While freeing for the worker, it also carries new and unexpected occupational health and safety risks. For example, under occupational health and safety obligations, you owe duties around providing a safe working environment for both your workers, and also members of the public. This means that you need to ensure that the environments you are instructing your workers to attend are safe, and that you are taking all reasonable steps to keep it that way. Do the wrong thing, and you could face fines of up to $1,399.140 per contravention for the organisation, personal fines of up to $1,800 per contravention, and devastating reputational damage for the organisation.

Working out how best to deal with occupational health and safety in the context of the NDIS will depend on a case by case basis, but a strong policy and training program will be important steps on the way to compliance. Some organisations are conducting site visits to identify and address occupational health and safety risks before work is commenced. It will also be vital to ensure that your insurance policy covers your workers in all situations, and that you understand when you need to notify your insurer when an incident occurs. Otherwise, you may be left fitting the bill yourself.

4. Workplace injuries

Little do people know, but the health and social services industry ranks second in terms of the total number of WorkCover claims made in Victoria (behind only manufacturing). To put it in other words, this sector represents more WorkCover claims than the construction industry, the mining industry and the electricity, gas, water and waste services industry combined.

Due to the unsupervised nature of NDIS work (and the level of new entrants into the sector) we predict there may even be an increase in the number of workplace injuries in 2017. This means additional workers’ compensation claims, potential legal disputes, and a solid increase in your insurance premiums. In other words, a situation you really want to avoid.

Similar to the above, making sure that your training, policies, and occupational health and safety framework is compliant and meets best practice will go a long way in reducing these risks, and will be time well spent.

5. Making the move to an adaptable workplace

The nature of NDIS work will likely mean that you need to stay agile as an organisation to deal with the increased use of individual client plans and an increased focus on home and community care services. The consumer driven market may lead to demand for services on an irregular basis, at more unusual hours (i.e. not 9am to 5pm) and at different locations.

Dealing with these changes from an employment law perspective will be important to avoid underpaying your employees. For example, if an employee is starting to work outside of the standard 9 to 5 hours you will need to consider whether they are entitled to additional remuneration under the applicable Modern Award or Enterprise Agreement (i.e. additional break entitlements, penalty rates or TOIL). Similarly, the relevant industrial instrument may set a minimum engagement period for a shift, usually no less than three hours.

You could also explore the possibility of using Independent Flexibility Arrangements (“IFAs”) to ensure that the working arrangements of the employee are best suited to the needs of the organisation and employee. Importantly however, an IFA can’t be used to reduce or remove an employee’s entitlements.

6. Considering whether to merge with another provider

NDIS providers will need to adapt to the changing funding environment and the new world of consumer-directed care in order to flourish and survive. Not all existing disability service providers will be well suited to fully service clients in the NDIS space, and to do so will need to consider merging with another entity.

When merging with another entity, there are numerous employment issues that will need to be considered. For example, you will need to ensure that the other side in the transaction does not owe any outstanding entitlements to its employees (or you have at least taken these into account in conducting due diligence), and that you comply with the continuous service provisions under the Fair Work Act 2009 (Cth) for transferring employees (i.e. that the clock keeps ticking in relation to their accrued leave). Given the number of potential pitfalls, and the fines for doing it incorrectly, we recommend you seek advice from an employment lawyer before agreeing to merge with another entity.

7. Responding to increased competition

There is no denying that by placing additional buying power in the hands of the individual consumer (or their family), competition in the NDIS space will remain intense in 2017. This means that providers will need to always be thinking about what the client wants, how they want it delivered, and why they want it in the first place. Otherwise, it is likely that other providers in the space will move in, and fast.

We predict that organisations will be forced to minimise their costs in an effort to stay competitive, but you should always make sure that you are paying your employees their minimum entitlements. It is also clear that price is not the only motivator for individuals, and that providing a quality service through a human rights based approach will remain extremely important. This may mean keeping your employees at the organisation for longer, and providing them with additional incentives to ensure this will occur.

8. Low cash flow

For providers in the NDIS space that are reliant on individual funding arrangements, an inevitable theme in 2017 will be unpredictable cash flow. Cash flow problems do not provide an excuse for not paying employees their entitlements, and hence organisations will need to engage in careful business planning. It will also require you to assess whether the organisation should take on workers on casual or permanent contracts.

9. Your employees may start working for multiple providers

With an increase in the number of providers in the NDIS space (and the historical reliance on casual employees), it is likely that some of your workers will seek to be engaged by multiple organisations at the same time. Given the potential for this arrangement to cause problems, such as breaching maximum engagement periods and risks of injury caused by fatigue, we recommend you address this issue in training and employment contracts, and properly investigate any concerns that your employees are attending work while fatigued.

10. Restricting your employees from stealing clients

Similar to the above, there will be times when an employee will depart the organisation and then seek to steal your clients. This risk arises because the employee presents as the face of the organisation and has gained the client’s trust during their engagement.

In terms of what you can do to respond to the risk, it is possible to place restraint of trade clauses in your employment contracts, however it can be a difficult thing to enforce against front line staff in the sector. It will therefore be important to put in well drafted restraints and confidentiality clauses (particularly for more senior staff) to enable you to protect your clientele upon an employee’s departure. We recommend you seek legal advice when placing such a restraint in a contract.

How we can help?

Given the complexity of the issues above, please don’t hesitate to contact one of our experts – Skye Rose or Catherine Brooks on (03) 9843 0418 or via email: to srose@moores.com.au or cbrooks@moores.com.au and let us know if you would like us to:

  • provide advice on Modern Award coverage;
  • review/draft your independent contractor agreement and/or provide advice on whether a worker of yours is likely to be an employee or contractor;
  • run tailored training programs on occupational health and safety;
  • assist you to merge with another entity; and/or
  • answer any question you may have on the NDIS.
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Charities’ non-profit requirement: a timely reminder

In a decision handed down on 23 December 2016, the Administrative Appeals Tribunal (“AAT”) has dismissed an appeal by Malek Fahd Islamic School in Sydney against the Minister for Education and Training’s decision to withdraw $19 million in annual funding.  The AAT agreed with the government’s assessment that the school was operating for profit, because it was paying too much rent to Muslims Australia (formerly the Australian Federation of Islamic Councils).

While this matter was determined under the Australian Education Act 2013 (Cth), the obligation in section 75(3) that the school be not-for-profit is essentially the same as the not-for-profit requirement imposed on charities under section 25-5 of  the Australian Charities and Not-for-profits Commission Act 2012 (Cth).

Under both Acts, the not-for-profit stipulation includes the requirement that profits not be distributed to an entity’s members or persons.  As such, while there are subtle differences in how the two legislative regimes express their not-for-profit requirements, the AAT decision is illustrative of the problems that can arise for charities more broadly in complying with this requirement.

AREA OF CONCERN: DEALINGS WITH RELATED ENTITIES

Facts

Where Malek Fahd Islamic School got itself into trouble, and where a risk exists for charities generally, is in deemed dividends that can arise through dealings with related entities.

Muslims Australia had been instrumental in establishing Maleh Fahd Islamic School.  Prior to March 2016 it had appointed the school’s chairman and deputy chairman, and had to approve the appointment of key officers.  The school’s constitution also required it to obtain Muslims Australia’s approval before leasing, transferring, mortgaging or disposing of the school’s property, and for any board resolutions approving the annual budget, proposing capital works, authorising borrowings or approving major asset purchases or disposals.  In other words, Muslims Australia exercised very substantial control over the school’s dealings.  The AAT acknowledged this.

The school’s problems arose from various land dealings that it had with Muslims Australia, including:

  • the terms on which it leased the site of its Greenacre campus from Muslims Australia;
  • the making of an unsecured, interest-free loan to Muslims Australia (which was never repaid); and
  • the payment of rent for 10 years in advance, without any discount for the advance payment.

There were also payments by the school to Muslims Australia for services that may not have been provided, or the value of which may have been overstated.  In the end the AAT did not look at the issue of the services because it already found in favour of the Minister on the basis of the property dealings.

The concern

The Minister’s concern was that in paying uncommercial rent to Muslims Australia, as well as providing the loan and advance payments, the school was making a deemed dividend to Muslims Australia.  A deemed dividend in this case is not a normal declared dividend, but a siphoning off of profits through inflated payments for goods or services.

This type of arrangement poses a risk for any charity that uses another entity associated with its directors or members to provide goods or services to the charity.  Unless scrupulous care is taken to ensure that the arrangement is fair and reasonable, the charity runs the risk of being accused of breaching the not for profit requirement.

Where there is no relationship between the charity and the entity receiving the payments, the risk becomes much lower because:

  • there is no incentive to siphon off money to an unrelated entity; and
  • even if an excess payment is made, it will not be a deemed dividend.

Where to now for Malek Fahd Islamic School?

The AAT acknowledged that educationally, the school is very good.  Apparently it has strong support from students and staff.  The AAT has also acknowledged that the current board, appointed in March 2016, has taken significant steps to resolve past problems, including commencing legal action against Muslims Australia.  The ABC has reported the school’s lawyers as foreshadowing the lodgement of an appeal this week.

Whether this will be enough to allow the school’s students to resume classes later this month is uncertain.  With the lost funding representing two-third’s of the school’s revenue, this case illustrates the potentially dire consequences of a charity failing it’s not for profit requirement.

What can we do to help?

We can assist charities:

  • to identify and manage potential conflicts of interest in dealing with related entities;
  • to ensure that its constitution, by-laws and policies impose on its board members and managers the requirements of Governance Standard 5 in the Australian Charities and Not-for-profits Commission Regulation 2013;
  • in up-skilling their board members on their personal obligations under the Australian Charities and Not-for-profits Commission Act 2012.
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Update: Labor’s Bill to water down religious exceptions for schools in Victoria fails

As flagged in our recent article, Labor’s recent Bill to water down the religious exceptions for schools in Victoria was defeated earlier this month. In this article, we will run you the proposed reforms, and what you can expect in the year ahead.

Background

The Equal Opportunity Act 2010 (Vic) (“the Act”) was introduced in 2010 to protect individuals from discrimination (both direct and indirect).

The Act also includes a number of permanent exceptions which permit discrimination by certain types of organisations in specific circumstances. For example, the Act permits religious schools to discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity in specific circumstances.

Since 2010, a number of attempts have been made by the Greens to remove the exceptions for religious schools, but the Liberal, National and Labor parties have continually voted to keep them. Earlier this year, the Greens introduced a Bill to remove the religious exceptions for schools, but again, it failed to gain the support of the major parties.

Labor’s recent push

On 30 August 2016, Labor published a press release stating that it would be introducing the Equal Opportunity (Religious Exceptions) Bill 2016 (“the new Bill”) into Parliament. Labor stated that the new Bill would “reinstate protections against discrimination for Victorian workers seeking employment at religious bodies or schools”.

According to Attorney General Martin Pakula:

“When the former Coalition Government scrapped the inherent requirements test in 2011, they left many in Victoria’s LGBTI communities vulnerable to discrimination in the job market. We respect people’s right to religious expression but not at the cost of equality. This test will ensure a fairer balance between the right to equality and the right to freedom of religion.”

What are the exceptions for religious schools under the Act?

Under sections 83 of the Act, religious schools are allowed to discriminate on the basis of a person’s religious belief or activity, sex, sexual orientation, lawful sexual activity, marital status, parental status or gender identity, if it:

  1. conforms with the doctrines, beliefs or principles of the religion; or
  2. is reasonably necessary to avoid injury to the religious sensitivities of adherents of the religion.

The practical effect of this exception is that a religious school could deny enrolment to a student, refuse to hire a teacher, or otherwise treat an individual differently, on any of the grounds set out in section 83 of the Act. A clear example would be a religious school refusing to hire a teacher who is attracted to the same-sex or has a different religious belief to the religious school.

Under the Bill, the “inherent requirement test” would be re-inserted into the Act, which will limit the ability of a religious body or school to use the religious exceptions to discriminate. The inherent requirement test requires religious bodies and schools to demonstrate a necessary connection between the body’s religious beliefs and principles, and the requirements of a specific role. Under the current regime, this step is not required.

Why did the Bill fail?

In our earlier article, we noted that Labor does not currently hold the majority in the Legislative Council and therefore would need either politicians to cross the floor (i.e. Liberal members to support the new Bill) or sufficient numbers of the minor parties to get behind it.

What eventuated on 6 December 2016 was that both the Liberal members, and a majority of the minor parties, voted against the Bill. This led to a final tally of 19-19, which meant that it failed to reach the 21 votes required to pass the Bill.

The reaction from both sides of the aisle were not overly surprising. According to Equality Minister Martin Foley, the Liberal Party:

“[are] either for equality or they’re not. Their arguments were completely devoid of empathy and a willingness to consider that all Victorians should experience equal rights.”

On the other hand, the Opposition attorney-general John Pesutto said the Bill was never necessary and it had sought to remove “longstanding protection” for religious freedom.

Going forward

What this means going forward is unclear. Although the Bill was defeated (and a similar Bill introduced by the Greens Party earlier in the year was also defeated), there is still appetite in the Labor Party to continue this pursuit.

We therefore don’t expect this to be the last we hear about religious schools and equality.

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Have you ticked this off your list?

The Australian Charities and Not-for-profit’s Commission’s (“ACNC”) new Registered Charity Tick is now available for eligible registered charities.

The ACNC has officially launched a Registered Charity Tick. The aim of the tick is to give the public confidence in the charity sector. The Tick is available to charities that are up to date with their ACNC reporting and have not been the subject of ACNC compliance action. Charities are encouraged (but not required) to display the Tick on their electronic and print media as long as they remain eligible to do so. Eligible charities can download the Tick by logging in to the ACNC Portal. Over 3,000 charities have already applied to use the logo.

There are detailed requirements for the use of the Tick, including that any use in electronic media be hyperlinked to the organisation’s Charity Register listing. Organisations can locate their listing by searching the Register for their name or ABN. There are also Visual Brand Guidelines designed to ensure that the appearance of the Tick remains consistent across its various applications.

However, there has been some criticism about the ‘tick”. Leaders in the field, including Our Community, have criticised the new regime as only registered charities can utilise the Tick – Not-for-Profits cannot, which may draw attention away (or undermine the fundraising efforts of or legitimacy of?) from the numerous Not-for-Profit organisations that are not registered charities but make significant contribution to the community. Our Community has called on the ACNC “to be honest, drop the Not-for-Profit from its name and come out as the ACC”. The ACNC is conducting a public information campaign to support the release of the Tick and further details can be found here.

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ALERT: Australia’s First Female High Court Chief Justice

The Turnbull Government announced this morning that Justice Susan Kiefel has been appointed as Australia’s first female High Court Chief Justice, ending 113 years of men heading up Australia’s most superior court.

Justice Kiefel succeeds retiring Chief Justice Robert French, who intends to stand down on 30 January 2017, just shy of his 70th birthday.

Justice Kiefel is the most senior justice on the High Court bench. The Court now boasts three women on the seven-judge bench, following the appointment of Justice Michelle Gordon last year.

Her Honour’s appointment follows a stellar career in the legal profession. After leaving school at only 15 years of age, she went on to work as a legal secretary. After practising at the bar, she then proceeded to win a Master of Laws at the University of Cambridge.

She was the first woman in Queensland appointed as Queen’s Counsel in 1987 and the first female appointed to Queensland’s Supreme Court. In 2007 she was sworn in as the third female High Court judge and in 2011 became a Companion of the Order of Australia.

Following her appointment as Queen’s Counsel, Justice Kiefel commented that she was a “lonely tree” in a forest of men. She rejoices that women are now “part of the landscape”. We celebrate with her!

 

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Breaking News – New Victorian water safety benchmark

Announced this morning the Victorian Government’s new water safety benchmarks require all kids to be able to swim 50 metres by the end of primary school.

Statistics revealed by Lifesaving Victoria say that 43 people have drowned in the past year and additionally 3 out of 5 primary school children can’t swim.

Opportunities abound for independent schools to review their water safety programs, to partner with providers of swimming lessons and to optimise use of swimming policies

If you would like to talk to us further about pool facilities or schools risk management please contact us.

If you would like an introduction to one of our many not-for-profit clients who run swimming lessons please contact us also.

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Opt in National Redress Scheme

On Friday 4 November 2016 the Turnbull Government announced a Commonwealth Redress Scheme for survivors of institutional child sexual abuse.

This announcement comes following the Redress and Civil Litigation report released by the Royal Commission into Institutional Responses to Child Sexual Abuse on 14 September 2015 which included the following recommendation:

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.

The Royal Commission believes this type of redress structure will achieve equal access and equal treatment for survivors; provide the greatest efficiency in administration costs; and achieve better outcomes than those that could be achieved from separate state and territory schemes.

Survivors, survivor advocates and commentators have been quick to criticise the efficacy of the Scheme because states, territories and other non-government institutions will be encouraged to cooperate with the Scheme on an opt-in basis. States, territories or institutions which do opt-in will be required to fund the cost of their own eligible redress claims.

The reality is, without a referral of power the Commonwealth cannot force the states to participate in a national scheme however the Government may have the power to compel the territories and has not ruled out legislating to compel participation in the Scheme. South Australia has reportedly already indicated that it will not opt-in to the Scheme however South Australia already has a redress scheme in place which provides compensation for survivors sexually abused in state care.

The Scheme is expected to be established by 2018 and will offer a monetary payment comprising a maximum payment of $150,000, despite the Royal Commission finding the appropriate level of monetary payments under redress is a maximum payment of $200,000. The scheme will also offer a direct personal response for those survivors who seek it and options to receive psychological counselling.

In our experience, non-government institutions more often than not focus on prioritising the needs of a survivor that makes a claim relating to child sexual abuse and make every effort to acknowledge any wrongdoing. Some larger institutions already have in place a sophisticated framework for survivors however for other institutions it can be extremely challenging to handle child sexual abuse claims in a way that is fair and sensitive to the survivor. This Scheme will provide non-government institutions with a much needed framework to provide redress and appropriately support survivors of abuse in a fair and respectful manner.

We recommend all organisations that engage in child-related work formulate an organisational position with regard to the Scheme taking into consideration your values, existing child safety response framework, and the messaging that your organisation wants to deliver to the community with regard to child safety.

In the interim, we will continue to keep you informed with regard to the Scheme and how it impacts your organisation.

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UPDATE: New Bill to Strengthen Victorian Working with Children Checks

On 25 October this year, the Andrews Labor Government introduced a new Bill into Parliament to strengthen Working with Children Checks (WWCC) and provide greater protection for Victorian children.

In this update we will take you through the five key changes proposed, and outline how we can assist you remain compliant with your WWCC obligations and create a child safe environment in your organisation.

Proposed new laws

The Working with Children Act 2005 (the Act) assists in protecting children from harm by ensuring that people who work with, or care for, children are subject to a screening process. The Act establishes a minimum requirement for people engaged in child-related work to apply for and obtain a WWCC. Since April 2006, approximately 1.93 million WWCCs have been issued.

The Working with Children Amendment Bill 2016 (the Bill) seeks to amend the Act by implementing five key recommendations made by the Royal Commission into Institutional Responses to Child Sexual Abuse. If passed, the amendments will strengthen the WWCC application process and bring Victoria into line with other state and territories.

5 key proposed changes     

  1. Non-conviction charges to be considered relevant. In its report, the Royal Commission identified that a key limitation in Victoria’s WWCC scheme is that, unlike other states and territories, Victoria does not consider non-conviction charges when assessing a person’s suitability for obtaining a WWCC. A non-conviction charge is a charge that has not resulted in a finding of conviction or guilt.The Bill proposes that non-conviction charges be considered as relevant matters when assessing a person’s criminal history, however limits this to the most serious offences being sexual, violent or drug offences. Restricting the consideration of non-conviction charges to the most serious offences contemplates that a non-conviction charge may be less credible in nature than a conviction charge or finding of guilt.
  2. Kinship carers must obtain a WWCC. The Bill proposes that ‘kinship carers’ be required to obtain a WWCC. A kinship carer is a family member or other person of significance to a child with whom the child has been placed in out-of-home care. This responds to the Royal Commission’s position that all carers (including kinship and relative carers) should be required to undergo a WWCC.
  3. Greater protection from online predators. The Bill proposes that the definition of ‘direct contact’ in the Act be expanded to include electronic communications. This reflects the growing use of technology which is presenting more opportunities for grooming children.
  4. WWCC required irrespective of whether or not the contact with children is supervised. Currently, in Victoria a WWCC is only required for unsupervised contact with children. The Bill proposes to amend the definition of ‘child-related work’ in the Act so that a WWCC will also be required for supervised contact with children. This proposed amendment responds to the Royal Commission’s findings that perpetrators can often groom children in the presence of other people.
  5. Power to require information. The Bill grants the Secretary to the Department of Justice and Regulation the power to require individuals to produce information if there is a suspicion that a person has breached the Act. A suspected breach of the Act could be that a person has engaged in child-related work without a current WWCC. This proposed amendment responds to the Royal Commission’s finding that the power to compel individuals to produce relevant information was crucial in ensuring compliance with working with children laws.

How can we help?

Given the possibility of the Bill being enacted, we will keep you updated of its passage through Parliament.

As noted by the Royal Commission, a WWCC is an important screening tool but is most effective in making organisations safe for children when used in combination with other preventative strategies such as:

  • having an up-to-date child protection policy, procedure and code of conduct;
  • effective risk and compliance resources to ensure compliance with child protection legislation;
  • training for staff and volunteers on reporting obligations in relation to child abuse; and
  • effective investigations into matters relating to child abuse

If you would like assistance in understanding your organisation’s WWCC obligations or assistance in creating a child safe place please contact Skye Rose, Senior Lawyer, on (03) 9843 0427 or via email to srose@moores.com.au.

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