On 1 January 2023 the Child Wellbeing and Safety Act 2005 (Vic) was amended to create greater powers to ensure that organisations comply with the Victorian Child Safe Standards. Over 50,000 organisations across Victoria including schools, early learning centres, kindergartens, councils, sporting clubs, religious institutions, disability service providers and out of home care services are required to comply with the Child Safe Standards. The new laws give additional powers to the Commission for Children and Young People (CCYP) and sector regulators to monitor and enforce the Child Safe Standards.

This article is a deep dive into the new legislation and provides a detailed overview of what has changed and what organisations should be doing now to ensure that they are complying with the Child Safe Standards to keep children and young people safe from harm and avoid regulatory scrutiny.

What are the Child Safe Standards in Victoria?

In Victoria there are 11 Child Safe Standards which relevant entities must comply with:

Organisations establish a culturally safe environment in which the diverse and unique identities and experiences of Aboriginal children and young people are respected and valued.
Child safety and wellbeing is embedded in organisational leadership, governance and culture.
Children and young people are empowered about their rights, participate in decisions affecting them and are taken seriously.
Families and communities are informed and involved in promoting child safety and wellbeing.
Equity is upheld and diverse needs respected in policy and practice.
People working with children and young people are suitable and supported to reflect child safety and wellbeing values in practice.
Processes for complaints and concerns are child-focused.
Staff and volunteers are equipped with the knowledge, skills and awareness to keep children and young people safe through ongoing education and training.
Physical and online environments promote safety and wellbeing while minimising the opportunity for children and young people to be harmed.
Implementation of the Child Safe Standards is regularly reviewed and improved.
Policies and procedures document how the organisation is safe for children and young people.

A relevant entity MUST implement all aspects of the Child Safe Standards. The CCYP has released minimum requirements for compliance and compliance indicators to assist organisations. The CCYP has also produced resources, including a Guide for Creating a Child Safe Organisation which can be found here.

How has the CCYP been enforcing the Child Safe Standards so far?

The Child Safe Standards are not new to Victoria. In 2017 the Victorian government implemented 7 Child Safe Standards and on 1 July 2022, these 7 Standards were updated to strengthen child safety in organisations, improve Aboriginal cultural and safety and empower children and young people about their rights and participate in decisions affecting them.

To date, the CCYP has had limited enforcement powers and has played more of an educational and supportive role in helping relevant entities comply. Relevant entitles were required to comply with the new Child Safe Standards by 1 July 2022. As of 1 January 2023, the CCYP has been given greater power to monitor and enforce relevant entities’ compliance with the Child Safe Standards through a range of functions.

What has changed?

The Child Wellbeing and Safety (Child Safe Standards Compliance and Enforcement) Amendment Act 2021 (Vic) (the Amendment Act) came into effect on 1 January 2021 and amends the Child Wellbeing and Safety Act 2005 (Vic) (the Act). The link to the entire Amendment Act can be found here.

The purposes of the Amendment Act are to:

Amend the requirements in the Act relating to the compliance of relevant entities with the Child Safe Standards;
Increase monitoring and enforcement powers relating to the Child Safe Standards
Include requirements in the Education and Training Reform Act 2006 (Vic) for relevant entities to comply with the Child Safe Standards including to provide for monitoring and enforcement powers of the sector regulator (VRQA);
To provide for information collection, disclosure use and reporting in relation to the amended provisions in the Acts.

Section 25 of the Act sets out the Functions and Powers of the Commission which include the provision of education, information and advice in relation to the Child Safe Standards, to publish Guidance Notes, to collect, analyse and publish information and data relating to the Child Safe Standards, to work collaboratively with sector regulators in relation to the safety of children and compliance with the Child Safe Standards, to promote information exchange between the Commission and other sector regulators, and any other functions conferred on the Commission.

In carrying out its functions in Section 25 of the Act, the Commission must consider the most effective means of promoting compliance by the relevant entity with the Child Safe Standards.

Which entities are subject to the Child Safe Standards?

Schedule 1 of the Act has been amended to provide an exhaustive list of entities who are required to comply with the Child Safe Standards. The list is wide and includes most organisations who provide services to children and young people.

Entities must be aware of its obligations under the Act and determine whether it is a relevant entity and therefore required to comply with the Child Safe Standards. Organisations must consult this list and seek advice in relation to its obligations, and whether it is required to comply with the Child Safe Standards, rather than risk harm to children and young people and regulatory scrutiny.

What are the new Monitoring and Enforcement Powers?

Division 3 of the Act sets out the monitoring and enforcement of compliance with the Child Safe Standards and includes robust powers to ensure a relevant entity is complying. Some of the more notable amendments to these powers include:

1. The power to enter a premises – Under Section 29A of the Act, an authorised officer may enter and inspect any premises or place if the authorised officer reasonably believes it is a premises or place from or in which a relevant entity provides services or facilities for children, employs or engages a child to assist with the provision of services or facilities, provides support for the provision of services or facilities to children or employment or engagement of children, or keeps materials or documents relating to the services or facilities for children or employment or engagement of children.

An authorised officer may enter a premises after providing Notice to the relevant entity, after obtaining a Warrant under S29E of the Act or if the authorised officer reasonably believes that the relevant entity is not complying, or has not complied, with the Child Safe Standards (subject to limited exceptions).

2. Powers after entry to premises – under S29C of the Act, if an authorised officer has entered a premises after providing notice, they have a wide variety of powers if the authorised person reasonably believes the actions are necessary to investigate whether a relevant entity is or has complied with the Child Safe Standards, or to investigate a person or body’s compliance with the Child Safe Standards. The authorised officers powers at the premises or place include:

Power to search any part of the premises or place
Inspect and examine any document or thing at the premises
Make enquiries with any person at the premises or place
Observe any activity being conducted
Take photographs, recordings or sketches of any document, thing or activity,
Copy or take an extract of any document
Take onto the premises or place any person, equipment or materials
Use and operate any equipment and materials
Secure any electronic equipment that the authorised officer reasonably believes stores or contains information that may be lost, destroyed or tampered with
Request any person on the premises to give information
Seize any document or any other thing at the place which the authorised officer believes is relevant evidence

3. Power to apply for a Warrant – S29E of the Act allows for an authorised officer to make an application to the Magistrates Court of Victoria for a warrant in relation to any premises of place, if the authorised officer believes on reasonable grounds that entry to a premises or place is necessary to investigate compliance with the Child Safe Standards.

The issuing of a Warrant under S29E(2) allows an authorised officer to enter and to use any of the wide powers under S29G of the Act.

4. Power to interview a child – Under S 29L of the Act, an authorised officer has the power to interview a child present at the premises or place. Noting that there is no legislative requirement for a parent or guardian to be present during the interview, so long as it has been considered by the authorised officer.

5. Notice to Produce –Section 30 has been amended to provide that a sector regulator may give a relevant entity a notice to produce if it believes that any document or information is necessary to determine if a relevant entity is comply with the child safe standards or is an entity that is required to comply with the Child Safe Standards.

6. Notice to Comply – Section 31 has been amended to allow a sector regulator to give a relevant entity a notice to comply if it believes on reasonable grounds that the relevant entity is not complying with the Child Safe Standards

Applications to the Court

Failure to Comply with a Notice to Produce or a Notice to Comply

In addition to the monitoring and enforcement powers outlined above, Section 33 provides that a sector regulator may apply to the Court if a person, body or relevant entity fails to comply with Notice to Produce or a Notice to Comply. A sector regulator may seek that the Court make a:

Declaration that the person, body or relevant entity has failed to comply with a notice to produce or notice to comply
An order requiring the person, body or relevant entity to pay a pecuniary penalty (120 penalty units for a body corporate or 60 penalty units in any other case); or
An injunction under Section 34A which may include an injunction to restrain a person, body, or relevant entity from:

engaging in specified conduct which the Court considers is likely to harm a child
providing services or facilities to children before the failure to comply is rectified
employing or engaging children before the failure to comply is rectified; or

To require a person body or relevant entity to:

to do a specified act or thing that the court considers reasonably necessary to prevent, minimise or remedy the failure to comply
to institute training programmes

The court may also make interim injunction orders in any terms the court considers appropriate, and these interim orders may be made ex parte, which means in the absence of the relevant entity.

Adverse Publicity Order

Another major change to the legislation which is likely to cause significant reputational damage to a relevant entity, is the power of the sector regulator to make an application to the Court for an Adverse Publicity Order under Section 34C if the relevant entity is convicted or found guilty in a criminal proceeding for a failure to comply with a notice to produce or comply or if a declaration is made by the Court that the relevant entity has failed to comply with a notice to produce or a notice to comply.

Other Powers

Official Warnings

A sector regulator may issue an official warning under Section 36A if a person, body or relevant entity is failing or has failed to comply with a notice to produce or a notice to comply or is failing or has failed to comply with the Child Safe Standards

Infringement Notices

A sector regulator may issue an Infringement Notice under Section 36B on any person, body or relevant entity that the sector regulator believes has committed a prescribed offence.

Enforceable Undertakings

A sector regulator has the power under Section 36C to accept an enforceable undertaking made in writing by a relevant entity where the relevant entity is or has failed to comply with the Child Safe Standards or a Notice to Comply and no proceedings may be instituted by the sector regulator whilst an enforceable undertaking is in force.

In the event that a relevant entity fails to comply with an Enforceable Undertaking, the sector regulator may apply to the Court for an enforcement order and the sector regulator may also apply to the Court to publish details of the relevant entities non-compliance with the enforceable undertaking.

Penalties

The amendments to the Act provide for a range of new offences and penalties which are summarised below.

Under Section 29S of the Act, a sector regulator may bring proceedings for an offence resulting in pecuniary penalties of over $4,950 for an individual or $20,000 for a body corporate, including:

Failure to provide assistance to an authorised officer (S29H)
Failure to comply with a requirement made by an authorised officer (S29I)
Obstructing an authorised officer from exercising a power or obstructing a person who is assisting an authorised officer from exercising a power (S29P)
Impersonate an authorised officer or hold oneself out to be an authorised officer (S29Q)
Providing false or misleading information (S32)
Failure to comply with a Notice to Produce or a Notice to Comply without reasonable excuse (S34D)

Also note that individuals may be personally liable despite the corporate veil. Under S32A of the Act, an officer of a relevant entity who is a body corporate, will be found criminally liable if the individual failed to exercise due diligence to prevent the commission of an offence under S34D (failure to comply with a Notice to Produce or a Notice to Comply)

Other Amendments

In addition to the new enforcement powers which came into effect on 1 January 2023, the Act has been amended in relation to:

Information collection, confidentiality and disclosure of information – Relevant entities must familiarise themselves with the legislative amendments and be aware of obligations under Division 4 of the Act.

Reporting obligations – Sector regulators are now required to report non-compliance of relevant entities with the Child Safe Standards under Division 6 of the Act and enforcement action undertaken by the sector regulator.

Amendment of the Education and Training Reform Act 2006 (Vic) in line with the new monitoring and enforcement powers.

Key Takeaways

The Act now provides for a robust system of monitoring and enforcement of organisations’ compliance with the Child Safe Standards. We expect that the CCYP and sector regulators will move from a more educational and supportive role to enforcing relevant entities to comply, especially those entities who have not made reasonable efforts to comply or a willfully engaging in non-compliance.

We understand that the Child Safe Standards place onerous obligations on relevant entities to ensure compliance and a considerable operational and financial output is required to ensure compliance.

However, we cannot emphasise enough the importance of the Child Safe Standards to ensure that all organisations working with children and young people provide a safe environment, where risk of harm is mitigated. Children and young people have a fundamental right to be protected from harm in all areas of their lives, and it is abundantly clear from the Betrayal of Trust Inquiry and the Royal Commission into Institutional Responses to Child Sexual Abuse, that the atrocities of the past must not be repeated. The amendments to the Act will go a long way in ensuring that organisations provide a safe environment for all children and young people.

How can Safe Space Legal help?

We work with organisations who are committed to providing a safe environment for children and young people. We assist organisations who are in various stages of compliance with the Child Safe Standards to improve their safeguarding capacity and we provide a range of services including:

Audits and Gap Analyses against the Victorian Child Safe Standards and best practice in safeguarding
Legal advice and recommendations in relation to compliance with legal and moral obligations and to address gaps in compliance
Policy Drafting including reviewing, amending and drafting Child Safe Policies, Procedures, Codes of Conduct, and other tailored Policies to ensure compliance
Child Safety Training which is tailored to the organisation and audience to ensure compliance with the Child Safe Standards and address gaps in knowledge
Investigations which are child focused and trauma informed, including under the Reportable Conduct Scheme (RCS) and Client Incident Management Scheme (CIMS)
Employment advice and representation in relation to employment outcomes, disciplinary action and proceedings in the Fair Work Commission
Root Cause Analyses following critical incidents
Legal representation for organisations facing regulatory action and enforcement proceedings

We welcome you to contact us to talk about your organisation’s child safety and safeguarding needs and how we can support your organisation to be best practice leaders and reduce the risk of harm to children and vulnerable people.

Child Safe Standards – Amendments to the law to ensure compliance