New child safety standards – regulation with standards and why the mission is important
28 October 2021● News and media
This guest editorial was written for the ANZSOG/National Regulators Community of practice monthly newsletter, highlighting new additions to the Regulation Policy and Practice collection on APO. The RP&P collection brings together a range of practical resources from national, local and state/territory governments, regulatory agencies and external institutions conducting monitoring, inquiries and reviews. You can receive this newsletter by joining the ANZSOG/National Regulators Community of Practice (membership is free) or subscribe to the newsletter directly.
By Emily Sanders
It would be difficult to find a regulatory practitioner in Australia and New Zealand unfamiliar with the idea espoused by Professor Malcolm Sparrow that regulators can be highly effective when they commit to their role as a problem-solver.
Victoria’s new Child Safe Standards seek to address the problem of abuse of our children in institutions. These are institutions trusted by parents/carers and children alike – the sporting club, the religious organisation and the local school. Many parents/carers and children have been so dreadfully let down over decades by our institutions. There has been wide-scale and significant harm with the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission) finding that tens of thousands of children have been sexually abused in many Australian institutions. These figures relate only to sexual abuse with many more children suffering physical violence, neglect and psychological abuse. The harm suffered by children and their families as a result of abuse in institutions can be devastating, for some deadly and for many life-long.
The Child Safe Standards require organisations to take action to prevent abuse, undertake contingency planning in the event of an allegation of abuse and also to take action if an allegation arises. Commencing in July 2022, the new Child Safe Standards will replace those in force in Victoria since 2016 and will be more nationally consistent. The actions required by the Standards are supported by a body of evidence collected by the Royal Commission of what works to keep children safe. New legislation to commence in Victoria in January 2023 will also increase the power of regulators to enforce the Child Safe Standards and increase sanctions.
Standards have been adopted to address a great number of harms in our society across areas as diverse as food labelling, neglect in aged care and public records management. The use of standards with legislated enforcement powers to prevent child abuse in a broad cross-section of institutions is relatively new in Australia and world-wide. The Royal Commission recommended that all state and territory governments should require institutions in their jurisdictions that engage in child-related work to meet the Child Safe Standards, that an independent oversight body in each state and territory should be made responsible for monitoring and enforcing the Standards and that regulators should take a responsive and risk-based approach when monitoring compliance with the Standards.
Standards are a well-suited regulatory tool for the task of abuse prevention with their focus on controlling risks. Crafting and enforcing a set of legally enforceable standards that apply to sophisticated and well-funded organisations like government departments, as much as they apply to the local netball club, creates challenges for both the regulators involved and the organisations they regulate.
Being able to remain closely connected with the problem to be solved, the mission, and keeping the harm to be minimised front and centre will benefit regulators approaching a task like this. Otherwise, we risk becoming lost in the idea that our job is to make sure organisations comply with a list of obligations. Over time, regulators can also become disconnected from the evidence base and an understanding of why those obligations were important to minimising risks of harm in the first place. Worst of all, we can become disconnected from those we seek to protect from harm. For those fortunate enough to have the evidence base of a Royal Commission or other inquiry, it can help to refer back periodically to these reports to test if you remain on the right track as well as finding new ways to build engagement with those intended to benefit from our regulatory work.
Enforcement action in response to non-compliance with standards sends an important signal. A vital part of effectively regulating is also generating high levels of voluntary compliance – encouraging organisations to take action to comply without the regulator needing to look over their shoulder. Another valuable approach is enrolling the general public in the task of regulating by empowering them to hold organisations to account. When using these methods, it helps to have a deep connection with the mission as well as a good understanding of exactly how the particular standards work to prevent harm. Generating voluntary compliance and community action requires regulators to motivate people, generate goodwill, garner commitment and explain what works and why. Drawing on Professor Sparrow’s perspective on harm1, it can help regulators to connect people with both the harm to be prevented (child abuse) and the good that can be produced (child safety) recognising that people can be differently motivated by the negatives or the positives. Such an approach may also assist to counteract the temptation over time for organisations and the community to ignore the risk and pull back prevention efforts if they have not personally experienced an event where the negative harm has eventuated.
When the mission is clear and the regulator is committed, standards can be a powerful tool to generate positive outcomes for our community.
1Malcolm Sparrow, The Character of Harms, Cambridge University Press, 2008.
Emily Sanders is the Director Regulation at the Commission for Children and Young People, Victoria, looking after the administration of the Reportable Conduct Scheme and Child Safe Standards. She has a background in law and has previous experience working at regulators including the Environment Protection Authority and Victorian Commission for Gambling and Liquor Regulation. An alum of ANZSOG’s EMPA, she also has policy experience in law enforcement d youth justice.