An unusually broad range and definition of ‘risk of harm’
For the purpose of the mandatory reporting duty, a child was defined as being ‘at risk of harm’ by s 23 ‘if current concerns existed for the safety, welfare or well-being of the child’ because of any of the following circumstances:
the child’s or young person’s basic physical or psychological needs are not being met or are at risk of not being met,
the parents or other caregivers have not arranged and are unable or unwilling to arrange for the child or young person to receive necessary medical care,
the child or young person is living in a household where there have been incidents of domestic violence and, as a consequence, the child or young person is at risk of serious physical or psychological harm,
a parent or other caregiver has behaved in such a way towards the child or young person that the child or young person has suffered or is at risk of suffering serious psychological harm.
The definition in s 23 was broad in three ways:
By predicating the duty with the opening clause ‘if current concerns exist for the safety, welfare or well-being of the child’, the provision was premised on broader and more slippery concepts than other jurisdictions’ legislation which imposed clearer limits on reportable cases of, for example, significant physical abuse and neglect;
By not clearly limiting the reporting duty in all cases to situations of significant harm; for example, with physical abuse, the legislation was drafted as applying where the child ‘has been, or is at risk of being, physically abused or mistreated’;
By including exposure to domestic violence, albeit technically limiting reportable situations to those situations where the child was at risk of serious physical or psychological harm. It can be noted that this provision may have influenced a likelihood among reporters, especially police officers, to be unable or unwilling to discriminate amongst different domestic violence cases and hence to ‘over report’).
Therefore, key features of the New South Wales definition provision which worked with the reporting duty provision may be expected to have influenced a much higher tendency towards reporting, including the reporting of cases which were of minimal gravity (overreporting).
The definition combined with the reporting provision in s 27 as follows:
