Independent Schools and the Impact of Nsw State and Federal Institutional Child Sexual Abuse Commissions

By Wendy Blacker, Amelia Williams
The Gadens
March 7, 2013

http://www.gadens.com.au/publications/Pages/Independent-Schools-and-the-impact-of-NSW-State-and-Federal-Child-Sexual-Abuse-Commissions.aspx

Two separate Commissions related to Child Sexual Abuse were announced in Australia in November 2012, one by the Federal Government which is wide-ranging in scope and one by the NSW Government which relates to a specific Catholic Diocese. Both however, relate to child sexual abuse in an institutional context.

Special Commission of Inquiry into matters relating to the Police investigation of certain child sexual abuse allegations in the Catholic Diocese of Maitland-Newcastle (NSW)

The NSW Commission was formulated in response to allegations by NSW Detective Chief Inspector Peter Fox that he was taken off the case (of investigating allegations of sexual abuse of children by Catholic priests in the Hunter Region) after becoming aware that senior clergy had concealed abuse and established a close relationship with victims.

The NSW Commission may make findings and recommendations in relation to:

(a) the circumstances in which Detective Fox was asked to stop investigating the

abuse and whether it was appropriate to do so; and

(b) whether the Catholic Church (and any related organisation) assisted with

police investigations or whether any investigations were hindered or

obstructed, by such things as failure to report criminal conduct, the

discouraging of witnesses to come forward or destroying evidence.

Under this commission the definition of the Catholic Church is broad and includes any organisation operated under the authority of the Church. In addition, the definition of Church Official is also broad – it includes not only members of the Catholic religious order (such as clergy); but also any representative of the Church including assistant, staff member or volunteer.

The Commissioner (Ms Margaret Cunneen SC) is due to provide a report on, or before, 30 September 2013.

Impact on Independent Schools

The NSW Commission is limited in its scope due to its concentration on the Catholic Diocese in Newcastle/Maitland and the related police investigation. At this point in time, there is little possibility the scope of the inquiry will be widened to include other organisations (such as schools), geographic regions or something outside of the controversial police investigation.

As a result, the NSW Commission is unlikely to have any direct impact on schools outside of the Maitland-Newcastle Catholic Diocese (other schools will not be investigated or there will not be submissions that could possibly refer to them). However, the NSW Commission will bring the issue of child sexual abuse further into the public psyche. In this respect, more people may be willing to speak of their experiences of child sexual abuse in educational settings to the Royal Commission, when it starts to accept submissions.

Royal Commission into Institutional Responses to Child Sexual Abuse (the Federal Commission)

The Federal Commission is charged with the responsibility of examining how institutions with a responsibility for children have acted in response to allegations and instances of child sexual abuse. It will consider where systems have failed to protect children, and make recommendations on how to improve practices, laws and policies to prevent and better respond to institutional child sexual abuse.

In conducting these inquiries, the six appointed Commissioners can examine any private, public or non-government organisation that is, or was in the past, involved with children, including schools (and their related religious, sporting and child-care facilities). This includes where they consider a school caring for a child is responsible for the abuse or for not responding appropriately, regardless of where or when the abuse took place.

Individuals (named as officials) within any organisation (such as schools) can also be summonsed to give evidence before the Commission. Officials include any representative, member, officer, employee, associate, contractor or volunteer of the institution who provide services to the institution (or any related entity).

The Federal Commission will examine:

(a) what organisations should do to better protect children against sexual

abuse and related matters in institutional contexts in the future;

(b) what organisations should do to achieve best practice in relation to the

reporting of and responding to the reporting of child sexual abuse;

(c) current failures in, and impediments to, reporting, investigating and

responding to allegations and incidents of child sexual abuse;

(d) what organisations should do to address, or lessen the impact of, past and

future child sexual abuse including, in particular, to ensure justice for

victims through providing redress, processes for referral and prosecution

and support services; and

(e) recommendations about any policy, legislative, administrative or structural

reforms that are needed.

By the 30 June 2014 an initial report of the results of the inquiry, the recommendations for early consideration considered appropriate to make in the initial report, and recommendation for the date, not later than 31 December 2015, to be fixed for the submission of the final report must be provided by the Commission. Many commentators however believe that the Commission will continue for longer than this given timeframe.

The Commission will call for written submissions and conduct public hearings. The processes for these lines of inquiry have not been established as yet.

Impact on Independent Schools

In regards to the Federal Royal Commission, there is likelihood that some Independent Schools will be impacted. The Commission will soon ask for submissions from people directly or indirectly affected by child sexual abuse.

If submissions from children abused in a school context are made known publicly, there is likelihood of media publicity, particularly if a number of submissions are made that involve the same school.

In addition, enquiries may be made of specific schools and the schools may be asked to provide documents and other relevant material to the Commission, if such submissions are made about the school by abused children. The Commission in doing so will be determining the ‘adequacy and appropriateness’ of the response by such schools to ‘reports and information about allegations, incidents or risks of child sexual abuse and related matters.’

There is a possibility that the Commission may recommend a higher level of child protection measures in institutions that have any level of contact with children. In this respect, schools should be ready to take on board any recommendations the Commission makes, and be willing to implement any necessary changes.

Schools should also continue to enforce a thorough system of reporting and responding to any potential sexual abuse incidents that occur. One key role of the Commission is to advise how institutions can achieve best practice in regards to reporting and response procedures. Schools should also be willing to make any changes in this regard as well.

While it is not within the terms of reference of the Commission to make recommendations in relation to compensation, there is a possibility that persons abused as children, who have not already done so, may seek compensation from the school for loss and damages caused by the abuse.

Additional Recommendations for schools

• Formulate a protocol for handling of media enquiries

• Communicate the protocol to all persons associated with the school

including staff, volunteers and students.

• Publish on the school website how media enquiries are to be made.

Comment: All questions from the public and media should be directed to the Principal or the Chair of the school council. We recommend that individual members of the council (or of the school) do not respond directly to questions asked by the media or public. Staff members should refer queries to the Principal, while council members should refer queries to the Chair of the Council. Once these questions are referred to the Chairperson or Principal, it may be appropriate to seek legal advice before responding. Further, for schools not experienced in dealing with the media, it may be desirable and beneficial to seek advice from a public relations expert. Schools should aim to be open and transparent in responding. It goes without saying that schools must be honest when responding.

• Document a procedure for responding to requests for information,

production of documents and responding to an order by the Commission for

production of documents.

• Communicate the procedure to all staff, and in particular, persons from

whom such requests may be made or orders given.

• Prior to the release of information and production of documents, the

information and documents should be reviewed from a legal perspective to

ensure that the information and documents are responsive to the request or

order, the school is complying with its legal obligations, confidentiality is

maintained and that privilege is not inadvertently waived in circumstances

where there is no requirement by the Commission for disclosure of otherwise

privileged material.

Comment: A limited time frame in which to respond will be given when documents are summonsed. Consequently, schools should be proactive and ensure the ready availability of information and documents that may be sought. All requests for information and orders to produce documents should be brought to the attention of the principal and the principal should co-ordinate the release of information and production of documents. Consideration should be given to obtaining legal advice in respect of all requests for information and orders to produce documents.

• Ensure that child protection policies, procedures and protocols are child-

centric.

• Ensure that the child protection policies, procedures and protocols comply

at a minimum, with the school’s legal obligations circumscribed by child

protection legislation (and the recent amendments to the legislation),

pastoral care obligations and the ethos of the school and religious

organisation affiliated with the school.

• Ensure that all persons coming into contact with children at the school are

familiar and comply with the school’s child protection policies, procedures

and protocols.

Comment: In preparation, schools should collate documents recording historical and current child protection policies, procedures and protocols. Further, schools should conduct regular professional development sessions for staff (professional and non-professional) and record attendance to ensure that each staff member is cognisant of their legal, professional and pastoral care obligations in respect of the protection of children. The school should also inform the broader school community of the child protection policies, procedures and protocols that are in place to encourage a climate of openness and transparency.

• Remain abreast of the evidence given before the Commission that is

relevant to your organisation.

• Familiarise yourself with the procedure for and rules that apply when giving

evidence before the Commission.

• Should evidence be given to the Commission comprising circumstances that

could rise to a claim being made against the school, the matter should be

reported to the school’s professional indemnity insurer.

Comment: Many institutions will have a legal representative attending the Royal Commission as a ‘watching brief’. Subject to the institution’s policies, the cost of having a legal representative attend for a ‘watching brief’ may be able to be shared amongst affiliated schools and the religious organisation. However, the legal representative attending should be familiar with the history of the participating schools and the religious organisation so as to facilitate identifying and reporting to the various institutions on relevant matters that arise. If you are summonsed as a witness to appear before the Commission you will be permitted to have a legal representative appear for you. We recommend that you do not appear without legal representation.

The above recommendations are a brief summary of initiatives that may need to be taken. The list is by no means exhaustive. Gadens Lawyers has a Schools, Colleges and University practice that is headed by Wendy Blacker. We have considerable experience in child protection matters and have advised widely in respect to these issues. We have also acted in matters involving allegations of sexual assault. Our clients include religious organisations and independent schools. Should you require further information or assistance, we invite you to contact us.