Law School Senior Lecturer, Carolyn Adams, with her colleague Krista Lee-Jones, has discovered that law and policy across Australia are as likely to hinder as help when it comes to sharing information about children at risk and potential perpetrators of child sexual abuse. Here she explains why.
One of the tasks of the Royal Commission into Institutional Responses to Child Sexual Abuse, established in 2014, is to investigate where law, policy and practice have failed to protect children from sexual abuse in institutional contexts and make recommendations for reform. The Royal Commission recognised that appropriate and timely sharing of information between government and non-government organisations, and across jurisdictions, was essential to allow institutions to work together to identify, prevent and respond to child sexual abuse. It was not clear, however, whether the relevant legislation and policy across Australia was likely to be helping or hindering this flow of information.
Together with my colleague, Krista Lee-Jones, I undertook a detailed investigation of the laws and policies in every Australian state and territory that impact on whether institutions are allowed or required to share information when there are concerns about child sexual abuse. Our report, commissioned and published by the Royal Commission, examines information sharing arrangements in institutional contexts where children are most vulnerable: child protection, out-of-home care, early childhood services, schools, juvenile justice and extracurricular activities.
The legislative and policy frameworks around sharing information in these contexts must attempt to resolve the tension between two sets of rights: the rights of children to physical and personal integrity and protection from all forms of violence, including sexual abuse, and the right to privacy for the children and adults involved. We found that this tension has resulted in complex law and policy, which can give rise to confusion for those working in the field.
Our report identifies elements of the regulatory framework that are likely to impede the timely and appropriate sharing of information and that warrant further consideration and possible reform. These include complexity and fragmentation in Commonwealth, state and territory privacy laws, and the creation of central agency information hubs that do not allow front line professionals to use their judgment and share information laterally.
The report also identifies elements that support timely sharing of information, such as provisions that include the ‘best interests of the child principle’. Making this principle explicit in legislation helps to ensure that when a child’s right to safety comes into tension with the child’s right to privacy, or another’s right to privacy, the safety of the child becomes the primary consideration.
Our report concludes that it is possible to share information about child sexual abuse in institutional contexts where necessary in ways that are consistent with the right to privacy, but there is some law reform work needed to make this a reality.
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