In 2022, the Privacy Act 1988 (Cth) (Privacy Act) was amended to increase penalties for serious or repeated interferences with privacy – a.k.a. breaches of the Australian Privacy Principles (APPs). You can read more about this in our article: We have a Privacy Bill, but some promised reforms will have to wait.
Now, in 2023, we have more action on the Privacy Act Review. The Attorney-General’s Department has published a report containing over 100 concrete proposals of reform, seeking consultation and feedback from the public.
Below we summarise the proposed amendments which will have the greatest impact on schools and other educational organisations such as Out of School Hours Care, TAFEs, Registered Training Organisations and key providers of services to schools.
It is likely the definition of “personal information” will be broadened to capture more information. This means the APPs, and the Notifiable Data Breach Scheme (NDB Scheme) will apply to more information. The proposed change to this definition is partly due to considerable confusion identified in previous consultation about what is exactly covered by the Privacy Act.
A technical change, it is proposed that the word “about” in the definition of personal information is changed to “relates to”. This significantly expands the reach of the Privacy Act to cover instances when a person may be mentioned or referred to, even if the information is primarily about another person.
Currently, the anomalous “employee records exemption” means Australian private sector employers do not need to comply with the APPs for large swathes of personal information they hold about their employees.
The proposed amendment suggests the security requirement of APP 11.1 and the NDB Scheme should both apply to employee records. It does not suggest that all the APPs should apply to employee records, as a consideration is the need for employers to have “adequate flexibility” to handle the information about employees they need.
The General Data Protection Regulation (GDPR), Europe’s privacy law and the global “gold standard”, does not include an equivalent exemption.
There are a few proposed amendments which relate to children. We intend to publish more detailed information about these which goes beyond the below summary.
The proposed new data breach reporting obligation would require schools and other organisations covered by the NDB Scheme to notify the Office of the Australian Information Commissioner (OAIC) within 72 hours of becoming aware of a data breach, so that, when a data breach occurs, quick action can be taken to minimise harm to affected individuals.
The current requirement is 30 days. This is a significant change, and will require schools to upskill in their data breach responses.
These proposed amendments, and many others, are already considered best practice in the industry. We can help you prepare for the coming reforms, and upskill your school, to aim for best practice privacy protection measures. We can do this by offering training to your staff, reviewing policies and procedures, and conducting a privacy compliance audit.
Please contact us for more detailed and tailored help.
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In response to increased social and regulator expectations, many schools have done the hard work of improving their governance frameworks and processes in recent years. Unfortunately, some schools’ related organisations (including the parent, alumni and sporting associations) have been left behind in these governance reforms.
School parent, alumni and sporting associations are generally managed by caring, enthusiastic and well-intentioned parents and members of the school community. With guidance and support from their school, these associations can play a key role in building thriving school communities, fundraising and providing ancillary school services and activities.
The following considerations can help school parent, alumni and sporting associations to effectively pursue their mission, reduce the potential for disputes and ensure good governance.
Associations are generally run by volunteers with limited time and resources and potentially less governance experience. Schools can offer administrative support, practical resources and assistance with navigating the governance landscape.
While a school and its associations may be legally separate, their reputations are inextricably linked. Schools need to consider the risk that issues arising in an association could impact the school community as a whole and the school reputation.
Associations may obtain member details from the school (including details of alumni and parents). This must be carefully managed to ensure that both the school and the association comply with their privacy obligations in relation to dealing with private information and the provision of private details held by one entity to the other. Some associations still deem individuals to be members (such as an alumni association that automatically adds all school leavers to its member database). These associations may breach their privacy obligations if they add the contact details of these “deemed” members to their register of member details (as the register must be provided to a member that makes a valid request for access to the register).
Each association will have a governing document – being a constitution, trust deed, or a memorandum/articles of association. Many members (and even some committee members) of the association will never read this governing document, even though it is a legal contract. These governing documents are often out-of-date and do not support best practice governance. Governing documents should be reviewed regularly to ensure that they are up to date, are fair and reasonable, are consistent, and reflect the values of the school and the association. A governing document can also establish ties back to the school that can be invaluable if the school needs to intervene to support a failing association. The governing document should also be supported by appropriate policies (such as a conflict of interest policy) that promote good governance.
Not-for-profit associations are subject to increasing regulatory scrutiny and operate in a complex legal environment. There can be serious consequences for non-compliance – both reputational and legal. Committee members of school associations would benefit from an induction process and ongoing training to help them to understand and comply with their obligations. This should be supported by appropriate insurance coverage to reduce the risk of exposure to personal liability.
If a school parent, alumni or sporting association has:
the association will be well placed to make a positive contribution to the school community.
Moores can help if you have any questions about your schools’ parent, alumni or sporting associations.
This article is part two of our charity article series. Click here to read the first article titled So you want to start a charity? Part one – Before you start
Tax concessions for charitable purposes have been granted in one form or another for over 400 years. Today, tax concessions are critical to the financial viability of registered charities. Obtaining charity tax concessions is the principal driver behind many charity registrations. This article will outline which tax concessions are available, how an organisation is endorsed and what ongoing obligations exist.
Charity tax concessions are highly sought (and protected) for a simple reason – charity income that would otherwise go to state and federal governments can instead be spent furthering the charity’s purpose. Less money on tax means more money for supporting the vulnerable, protecting the environment, promoting the arts or otherwise contributing to the community.
A range of tax concessions may be available to charities. Federal charity tax concessions include:
The federal government also regulates which entities can be endorsed as tax deductible gift recipients (Deductible Gift Recipient (DGR) endorsement).
In addition to federal charity tax concessions, charities may also be eligible for state tax concessions, including exemptions from paying:
Federal concessions
Federal charity tax concessions are available to charities registered with the Australian Charities and Not-for-profits Commission (ACNC). To register with the ACNC, organisations must meet the requirements of the Charities Act 2013 (Cth) (Charities Act), which requires a charity to:
Charitable purposes must be set out in an organisation’s governing document (such as its constitution, rules or trust deed) and must be reflected in its activities. The Charities Act recognises 12 charitable purposes:
All charities registered with the ACNC are eligible to receive basic charity tax concessions – income tax exemption, GST concessions and FBT rebate.
Only some charities registered with the ACNC will be eligible for FBT exemption and/or DGR endorsement. For example:
These charities must meet additional criteria – for example, they must take steps to ensure that their assets will go to another charitable DGR in the event that the charity loses its endorsement or is wound up.
State concessions
Eligibility for state tax concessions varies in each state and territory. Most state tax concessions are administered by state revenue offices. The charity’s application for exemption must demonstrate that it has a purpose which meets that state or territory’s definition of “charitable”. What the states considers to be charitable largely overlaps with, but is not identical to, the Charities Act charitable purposes listed above. Being ACNC registered is not conclusive evidence of eligibility for state tax concessions. Additionally, eligibility for particular concessions is based on a charity’s activities, rather than its purposes. This means that although an ACNC registered charity will usually be eligible for state tax concessions, eligibility is not guaranteed.
Concessions for non-charities
Although this article focuses on charity tax concessions, it is worth noting that some “mere” not-for-profits (that is, not-for-profits that are not charities) can still access certain tax concessions. Sports groups, for example, generally cannot be ACNC registered charities (unless they also have a charitable purpose, such as a group that carries out sporting programs to advance education or social welfare), but may be exempt from paying income tax as self-assessing income tax exempt organisations.
Eligibility for tax concessions must be maintained throughout the life of a charity. There are obligations on charities to self-assess their ongoing entitlement to tax concessions, and notify the ACNC, Australian Tax Office or State Revenue Office if they are no longer eligible.
If a charity ceases to meet the eligibility requirements for tax concessions, it may lose those concessions. In a worst case scenario, the loss of concessions can be retrospective, which can result in a significant tax liability.
It is important that the governing body (Board, Committee or Trustees) of a charity understands the tax concessions it holds and the importance of its not-for-profit character and charitable purpose. The governing body should have a process in place to review ongoing eligibility – both periodically and when contemplating any change in activities, purpose or structure.
It is also critical that charities meet ongoing obligations of charity registration, including providing annual statements or reports to the ACNC. The charity must also take steps to comply with the Governance Standards (unless the charity is a Basic Religious Charity) and, if operating overseas, the External Conduct Standards.
The ACNC is increasingly active as a regulator and will investigate non-compliance connected to eligibility for charity tax concessions and DGR endorsement. Additionally, the Government has provided additional funding to support proactive reviews of charity and DGR eligibility, which will commence with a review of 500 public benevolent institutions.
Tax concessions can help a new charity stretch their donated dollars further, so more resources can be put towards their charitable purpose. Our For Purpose team can provide advice and assistance establishing new entities and applying for tax concessions.
See Part 1 – Before you start here
See Part 3 – Choosing the right structure here
We often consider that superannuation is ‘ours’. It’s our money that we contribute to our long-term retirement savings.
But there are rules and regulations that are imposed in the superannuation environment which have to be carefully considered.
For example, unless certain circumstances arise, you are not able to simply withdraw your superannuation entitlements.
Death is one circumstance where superannuation must be paid out of the fund in which it was held – but it cannot be paid to just anyone.
When a member of a superannuation fund dies, they receive a ‘death benefit’. Broadly speaking, a death benefit is the sum of the person’s member balance (made up of all of their contributions and earnings on those contributions) and any life insurance that they hold in the fund. That death benefit can only be paid to a limited class of recipients (referred to in the superannuation legislation as a ‘dependant’):
In addition to the above ‘dependants’, the member’s legal personal representative is also eligible to receive a death benefit (which means it forms part of their estate). The existence of this last category is important – a person’s Will does not automatically govern where their death benefit will be paid. It is only if the death benefit is paid to the member’s legal personal representative that their Will (if any) will dictate how the death benefit is then paid. If there is no Will, then death benefits paid to the estate will be governed by the laws of intestacy.
The tax treatment of the payment of death benefits to each of these categories of recipients is a topic for another article.
The default position for most superannuation funds is that the trustee will have discretion to choose who will receive the death benefit amongst the above class of eligible recipients.
It is possible (subject to the rules of the relevant superannuation fund) for a member to advise the trustee of their preference of recipient, or even elevate that to a binding nomination of the recipient.
For example, in the case of Wan v BT Funds Management Limited [2022] FCA 302 the full Federal Court heard the following details:
There are a few key takeaways from this case to keep in mind:
For expert advice or guidance regarding Estate Planning and superannuation funds, please do not hesitate to contact us.
The Federal government has announced a plan to increase the tax rate applicable to member balances over $3M from 1 July 2025 to 30% (up from 15%). The detail is not yet published, however, for members with balances that exceed this amount, an initial reaction might be to look to how to withdraw their funds. The question however needs careful consideration (as well advice from a licenced financial advisor).
This article flags some issues for consideration when looking at that question:
The devil will be in the detail, but advisors and members of SMSFs need to start thinking about these questions sooner rather than later.
The Australian Law Reform Commission (ALRC) has released a Consultation Paper on Religious Educational Institutions and Anti-Discrimination Laws. Submissions close on 24 February 2023.
The ALRC carried out the consultation in response to a request from the Commonwealth Attorney General the Hon Mark Dreyfus MP KC. That request asked the ALRC to recommend reforms to the law to implement the Government’s policy commitments in this area in a way that is consistent with Australia’s international legal obligations. These policy commitment include reforms to ensure that a religious educational institution:
The paper sets out four general propositions which would be implemented by amending the Sex Discrimination Act 1984 (Cth) and the Fair Work Act 2009 (Cth).
We have briefly outlined and commented on the proposed reforms below. Interested parties are encouraged to read the Consultation Paper in full, which is comprehensive and clear.
In summary, the proposed reforms, if adopted, would:
Members of the public are invited to respond to the Consultation Paper, by making a formal submission (which can be public or confidential) and/or responding to a confidential survey. Submissions close on 24 February 2023.
Moores can help if you have any questions about the Consultation Paper or what the proposed reforms mean for your organisation.
2022 was a significant year of change and progress for the charity and not-for-profit (NFP) sector in Australia – numerous governance and regulatory changes were announced and will come into effect from 2023. If you are heading up a charity or NFP or sit on its board, consider the key matters in the links below as we start 2023.
Directors of NFPs and charities that are companies registered with the Australian Securities and Investments Commission (ASIC) (including incorporated associations with an Australian Registered Business Number and Aboriginal and Torres Strait Islander corporations) were required to obtain a Director Identification Number (Director ID) before 30 November 2022. Directors were given an additional two-week grace period (which ended on 14 December 2022) as it was believed that up to 700,000 directors had not yet obtained a Director ID at that time. Directors who have not obtained a Director ID are encouraged to do so now as a matter of urgency to avoid any penalties. Apply online at abrs.gov.au/directorID.
Charities with a reporting period of 1 July 2021 to 30 June 2022 should have lodged their 2022 Annual Information Statement (AIS) on the 2022 AIS Hub by 31 January 2023. The AIS should have complied with the new reporting requirements for charities which came into effect on 1 July 2022. These include:
To support ongoing compliance, charities should familiarise themselves with the changes and ensure they have systems, processes and controls in place to enable reporting.
Most categories of Deductible Gift Recipients (DGRs) are now required to be registered charities with the Australian Charities and Not-for-profits Commission (ACNC) or be operated by registered charities. As set out in our previous article, ‘affected DGRs’ had a transitional period of up until 14 December 2022 to become registered charities or to apply to the Australian Taxation Office (ATO) to request for an extension of up to three years (up to 14 December 2025). Moores can assist if these changes have affected your organisation and you are yet to become a registered charity or apply for an extension, please get in touch with us.
The ACNC experienced significant change in 2022, its tenth year of operation.
New Commissioner(s)
Shortly after the federal election, Dr Gary Johns resigned from his position as Commissioner of the ACNC. Deborah Jenkins took up the role of Acting Commissioner from 1 August 2022 and served until 12 December 2022, when Sue Woodward AM commenced as the Commissioner. Ms Woodward’s appointment was warmly welcomed by the charity sector. She is widely respected for her expertise and experience as well as her significant contribution towards reforming fundraising laws.
Enhanced charity register
The ACNC launched its enhanced Charity Register in 2022, aimed at assisting users to more easily find details about the types of programs being run by charities. If your charity has not reviewed its ACNC charity records recently, it may be a good opportunity to undertake a review of your records to ensure that information about your charity and programs are accurate and up to date. This will also assist potential supporters and funders to readily locate your charity through the search functions. Since launching the enhanced Charity Register, the ACNC noted a 31% increase in searches throughout the last financial year.
Following the 2022 federal election and change of government, Dr Andrew Leigh was appointed as the Assistant Minister for Competition, Charities and Treasury. Dr Leigh promised to “end the war with charities” and pledged to:
The sector waits to see how Dr Leigh will implement these changes in practice. However, early signs have been positive, including the government’s recent announcement that it had removed restrictions in funding arrangements with legal aid organisations (i.e. community legal centres) which previously prevented them from engaging in political advocacy.
In 2022, the government amended the Corporations Act 2001 (Cth) (Corporations Act) to allow companies (including NFP and charitable companies limited by guarantee) to use technology or electronic means to:
These new, more flexible practices should be taken into account by companies, particularly when making meeting arrangements and reviewing affected provisions in your governing document.
Public consultation commenced early in 2022 regarding a new DGR category for pastoral care services. This proposal was short-lived, with confirmation in the 2022 Federal Budget that the initiative would not proceed.
A new Taxation Ruling, TR 2022/2 Income tax: the games and sports exemption, replaced the ATO’s longstanding previous taxation ruling TR 97/22. The new ruling aims to provide a clearer and more nuanced definition of when a society, association or club will be exempt from income tax under the games and sports exemption in section 50-45 of the Income Tax Assessment Act 1997.
NFPs that are not registered charities should prepare for impending changes regarding self-assessments for income tax exemption (ITE).
From 1 July 2023, the ATO will require NFP companies to lodge an annual self-review form along with supporting documentation in order to maintain eligibility for ITE. To assist organisations with complying with this new requirement, the ATO has produced a number of self-assessment tools including a self-governance checklist and an ITE self-assessing worksheet for sporting organisations and all other ITE categories. Since announcing the changes, the ATO has also continued its targeted consultation, which is likely to result in additional support and guidance materials to assist with the transition.
NFPs should give careful consideration to whether they are entitled to self-assess as income tax exempt. They should also consider whether their entity is able to be a registered charity, as the effect of the Income Tax Assessment Act 1997 (Cth) is that an entity that can be a registered charity must be a registered charity – it should not seek income tax exemption under another ITE category.
In mid-2022, the ACNC commenced public consultation on the proposed updated Commissioner’s Interpretation Statements (CISs) for Public Benevolent Institutions and Health Promotion Charities. Public consultation on the proposed updated CISs has now closed. The sector awaits the ACNC’s response to submissions made in the consultation process. In the meantime, the current CISs continue to apply.
DGR register reform
The Australian Treasury (Treasury) has released a draft bill and explanatory memorandum which proposes to abolish the registers of Cultural Organisations, Environmental Organisations and Harm Prevention Charities and the current Overseas Aid Gift Deductibility Scheme. These reforms intend to reduce red tape and increase the processing time of DGR application, which would instead be processed by the ATO. For more information about these reforms see our article.
Treasury is engaging in a process of consultation with regards to the proposed reforms and has invited the public to comment on the matters set out in the exposure drafts. Submissions are open until 19 February 2023.
Beneficial ownership register
In late 2022, Treasury sought submissions, (which closed on 16 December 2022) in relation to the design features for a publicly available beneficial ownership register. This public register would require entities regulated by the Corporations Act (which includes many charities and NFP companies limited by guarantee) to maintain a register (parts of which would be publicly available) including details about beneficial ownership of assets.
The driver for these reforms is enhancing the tax integrity of multinational entities and to increase transparency about ownership of companies. There are concerns about how the proposed requirements would impact charitable and NFP entities, including introducing further record-keeping and compliance requirements as well as making public information that may have otherwise been undisclosed to date.
Strengthening the Australian Business Number system Bill
Treasury has also recently finalised its community consultation in relation to a new bill focused on strengthening the Australian Business Number (ABN) system in Australia. The bill proposes to enable the Australian Business Register (ABR) to cancel an ABN if a person or entity either:
The bill in its current form would apply to all ABN holders, including NFPs and charities registered with the ACNC. Whilst Moores welcomes reforms focused on improving the accuracy of information on the ABR, there is concern about the impact that the implementation of the bill could have on the NFP and charity sector, including increased reporting requirements and the potential consequences of non-compliance. The sector awaits the published outcomes of the community consultation.
The ACNC has released new guidance for the sector on crypto-assets. Charities are encouraged to consider the risks and benefits before accepting donations or crypto-assets or investing in crypto-assets given that managing a charity’s financial affairs responsibly is a key requirement under Governance Standard 5 and the risks associated with crypto-assets are greater and harder to manage.
The ACNC has invited stakeholders to complete a survey and comment on its guidance note in relation to related party transaction reporting in the 2023 AIS. Comments are welcome before 10 March 2023 and the survey must be completed by 16 March 2023.
The Australian Institute of Company Directors (AICD) has launched its NFP Governance and Performance Study 2022-23, providing valuable insights into the sector.
The AICD has also made one hundred scholarships available for its 2023 Disability Leadership Program. This is a full-fee scholarship to undertake the AICD Company Directors Course, Foundations of Directorship Program or Governance Foundations for Not-for-profit Directors. Individuals with disability can submit an application by 19 February 2023.
Moores can help if you have any questions about setting up your NFP or charity for a successful 2023 or complying with any of the recent reforms.
On 19 January 2023, the Treasury released an exposure draft bill and explanatory memorandum relating to reforms of the Deductible Gift Recipient (DGR) registers currently administered by Australian Government departments. The draft bill is a key step in a reform process initially announced over five years ago and should lead towards simpler and more efficient administration for some categories of DGR.
There are currently 52 DGR categories set out in Division 30 of the Income Tax Assessment Act 1997 (Cth) (ITAA). Each category has its own eligibility criteria. Applications for endorsement for 48 of these DGR categories are made to the Australian Taxation Office (ATO), sometimes via another government agency such as the Australian Charities and Not-for-profits Commission (ACNC).
However, four DGR categories are currently administered in a different manner by Australian Government departments, these are:
Currently, entities must apply directly to these departments in order to obtain DGR endorsement. Each department has a distinct set of eligibility requirements, and applications for DGR endorsement are managed independently using different platforms and following different processes.
Ultimately, the relevant Treasury Minister and the Ministers responsible for each respective department must approve each application. These applications can take up to two years to be processed, whereas applications to the ATO can often be completed within one month.
The proposed reforms seek to transfer the practical administration of these DGR categories from the government departments to the ATO.
The proposed reforms would abolish the powers of the Ministers and the departments to facilitate and approve registrations, and would abolish the registers themselves. Eligibility criteria for entities seeking DGR endorsement would largely remain unchanged. However, applicants would no longer need to include some previously required provisions in their governing documents such as a requirement to provide statistical information about gifts to the secretary of the endorsing department.
Additionally, for Cultural Organisations, Environmental Organisations and Harm Prevention Charities, the proposed reforms also seek to replace the current requirement to maintain a public fund, with the slightly less onerous obligation to maintain a gift fund.
Section 30.130 of the ITAA provides that a separate bank account is not required for a gift fund and does not require a gift fund to be managed by a management committee with a majority of individuals who meet the ATO’s ‘responsible persons’ test.
This is good news for current DGRs as administrative burdens relating to opening a separate bank account will be alleviated and the board or executive would be able to manage the gift fund directly without the need for a separate management committee, comprising ‘responsible persons’.
The proposed reforms for overseas aid organisations are slightly more significant. Currently, the eligibility criteria for DGR endorsement is predominantly contained in guidance material that is published by the Department of Foreign Affairs and Trade with a focus on the organisation’s activities. Much of the eligibility criteria is preserved in the proposed reforms, however the language is expressed in a manner that focuses on the principal purposes of the organisation: they must have a “principal purpose of delivering development or humanitarian assistance activities (or both) in developing countries, and must deliver those activities in partnership with organisations in the country, based on principles of cooperation, mutual respect and shared accountability.”
If the reforms are enacted, existing DGRs will (irrespective of the clause in their governing document) be able to transfer assets in a winding up to another DGR with similar purposes, rather than another DGR on the relevant register. They will also be able to replace the public fund requirement in their governing document with a more flexible gift fund requirement.
Please get in contact with our team of charity and not-for-profit law experts if you’d like to discuss the proposed reforms with us in greater depth.
Organisations that work with children or other vulnerable demographics of people must have zero tolerance for abuse and harm. This requires effective safeguarding practices to manage risks, and prevent and respond to incidents and concerns. Implementing robust policies and procedures is a crucial step in ensuring an organisation is safe for children and vulnerable people, and empowering staff to take responsibility for safeguarding. It is also a requirement of the Victorian Child Safe Standards.
However, critical incidents can still occur. When they do, organisations and their staff must be prepared to respond effectively and efficiently, and in accordance with their legal and ethical obligations.
In this article, we set out nine key steps for organisations to respond to critical child safety incidents.
If there is immediate risk of harm, you must ensure that you protect the safety and wellbeing of all people present. This should involve calling 000 for Emergency Services, separating people involved or removing a person from a situation, and engaging another responsible person or people to assist in a coordinated response.
It is important to provide ongoing support to any parties impacted by the incident from the time of the incident or disclosure until the matter is resolved. This includes the child, witnesses, and any staff who have been involved in the response. Even if a person was only impacted indirectly, it will be important to monitor for vicarious trauma or other wellbeing concerns. Ensure support is trauma-informed, and engage with appropriately qualified professionals where required.
Your response to an incident will depend on the type of incident that has occurred. Where you suspect that child abuse has occurred or that a child is at risk or in need of protection, you may have obligations to make a report to Police and/or relevant government department (such as the Department of Families, Fairness and Housing). You might also have obligations to report under a Reportable Conduct Scheme, if the concerns involve a worker at the organisation. Where a reporting obligation has arisen in Victoria, a report must be made as soon as is practicable (or within three days under the Reportable Conduct Scheme). It is rarely ever appropriate to conduct a preliminary investigation to ‘test’ the allegations or concerns prior to making a report.
When assessing and escalating the concerns, ensure that you consult your organisation’s safeguarding policies and procedures for further guidance, or a Child Safety Officer within your organisation. You must also maintain the privacy of the child, and only disclose the incident to relevant authorities and those within your organisation who need to be informed.
In addition to reporting obligations, it may be useful to seek support from an external body. For instance, where an incident involves the publication of material online, it could be appropriate to contact the E-Safety Commissioner. If you are unsure of what to do, you may wish to enquire with a government regulator on the record or anonymously. Records should be kept of the enquiries made and advice or guidance provided. Where there are legal or reputational risks involved, it may be important to obtain legal advice. Similarly, where an incident requires an organisation to investigate allegations, it might be appropriate to engage an independent investigator.
It will be important to secure any evidence in a manner that is safe and consistent with your legal obligations. For example, where an incident involves child-abuse material, it will not be appropriate or lawful to keep a screenshot of that material as evidence on your personal device without disclosing it to relevant authorities, or to destroy any evidence.
You must make and maintain records of any incidents, consistent with your organisation’s policies and any legal obligations. Records should be made consistent with the Record-keeping Principles arising from the Royal Commission into Institutional Responses to Child Sexual Abuse. This means that records should be full and accurate and made about all incidents, responses and decisions affecting child safety. They should be maintained appropriately and only disposed of in accordance with law or policy. For some organisations, there is a freeze on disposal of records related to child sexual abuse, to recognise that there may be significant delays in disclosure.
It is important to keep a child’s parents or carers informed about the child’s safety. However, where there are concerns that abuse has occurred within the child’s family or home, this may pose further risk. You should consult with the relevant authority, such as Police, before doing so.
Where a critical incident occurred due to a suspected breach by a worker within your organisation, it may be important to suspend the worker and conduct an investigation. If the breach is substantiated, it should be addressed appropriately. Depending on the circumstances, that may involve taking disciplinary action and/or notifying any relevant regulatory bodies (such as the Victorian Institute of Teaching, where it involves a teacher).
Support and communication with those affected should be ongoing, particularly where there are concerns for health, safety or wellbeing. Ensure that your organisation has appropriate supports in place to minimise further risks of harm, and that they are effectively communicated.
Safeguarding policies, procedures and codes of conduct should be regularly reviewed, evaluated and updated, including after every critical incident. A debrief is an effective way to ensure that staff who responded to the incident can identify gaps in the policies and procedures and key learnings from the response process.
For assistance with responding to critical incidents in an effective and trauma-informed way, or developing your organisation’s safeguarding strategies, please get in touch with the Moores Safeguarding team.
Safer Internet Day 2023 is this week. It is an important day for all organisations that interact with online environments. On 7 February 2023, Australians will be encouraged to “connect, reflect and protect” for the sake of making the internet a safer space for everyone. This is especially important for organisations that work with children, such as schools and charities, as children are increasingly facing safety risks in the online world.
This worldwide initiative is celebrating 20 years in 2023, making it a great time to reflect as well as look forward. Technology has evolved dramatically in the past two decades and the benefits have been huge. These developments have also exposed us to many risks with real-world impacts, making online safety awareness even more important.
Safer Internet Day is an opportunity for your organisation to:
A significant threat for children and young people in the online environment, online grooming is described by the eSafety Commissioner as ‘the building of an online relationship with a child in order to sexually abuse them’.
Online grooming is unlawful and should be reported immediately to the police, even if no sexual act has occurred.
Concerningly, the eSafety Commissioner reports that 1 in 4 young people have been contacted by someone they do not know online, with 38% of young people saying that they have spoken to strangers online.
While this contact can be harmless, it can also be inappropriate, unwanted and unsafe. It can also become unsafe even when the initial contact is welcomed. At worst, the contact can evolve to involve grooming a young person to sexually abuse them, whether that is online abuse – for example, by being tricked or persuaded into sexual activity on webcams or sending sexual images – or being coerced into physical meeting.
Important to know: The criminal offence has no distinction between online or in person communication or conduct. Online communication or conduct is a crime if it meets the criminal offence in the applicable State or Territory criminal law. There are also technology specific crimes in the Federal Criminal Code.
The Betrayal of Trust report from the Victorian Government found many perpetrators of sexual offences against children purposely create relationships with victims, their families or carers in order to create a situation where abuse could occur. Increasingly, these relationships can be created online, without families or carers being aware of the communications being received by their child.
Where there are concerns of online grooming, we recommend making a:
The above reports may be made in consultation with the child or their parent or carer where appropriate.
We will discuss scenarios where children often face safety risks online in our complimentary online seminar on 8 February 2023. Register here to attend our live webinar.
This empowers young people to participate in their own safety, and begins the conversation about what is and isn’t acceptable behaviour. Education about consent for children and young people is important, and timely, with affirmative consent laws being introduced in Victoria and New South Wales.
Take active steps to address the risks of your systems being hacked, or impersonated by perpetrators, for example, by revoking access to systems of past employees or families promptly and permanently. Read here our top tips for ensuring online safety and data security for charities.
Taking steps to ensure your online environments promote safety and minimise the opportunity for children to be harmed is also a key compliance element of the duty of care and the Child Safe Standards, or for schools, Ministerial Order 1359.
Our safeguarding, education and privacy teams can offer training and provide tailored internal resources to empower staff to understand risks facing children and organisations online, and how to handle incidents when things do go wrong.
Join our webinar to learn more about how you can support the charities or school you are a part of to connect, reflect and protect.