Child Abuse and Neglect: a socio-legal Study of Mandatory Reporting in Australia

Major changes: the Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13, Schedule 1.1 (commencing 24 January 2010)

After the Wood Inquiry into child protection in New South Wales, four substantial amendments were introduced which affected the concept of harm, a new category of reportable harm, the penalty provision, and reporting mechanisms.

Change to concept of harm – ‘significant’ harm (commencing 24 January 2010)

The Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13 (hereafter referred to as the Wood legislation) added a qualification of ‘significant harm’ to the reporting duty in s 23 definition of ‘risk of harm’ (Sch 1.1). This limited the class of reportable cases in a clearer manner than had previously existed (Sch 1.1[1] and [2]). This was achieved by:

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  changing the heading (so it reads ‘Section 23 Child or young person at risk of significant harm’);
  
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  adding the word ‘significant’ to s 23(1) (so the sentence reads: ‘a child or young person is at risk of significant harm’ rather than the previous ‘at risk of harm’
  
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  adding the words ‘to a significant extent’ so the sentence reads as follows:
  

23 Child or young person at risk of significant harm

For the purposes of this Part and Part 3, a child or young person is at risk of significant harm if current concerns exist for the safety, welfare or well-being of the child or young person because of the presence, to a significant extent, of any one or more of the following circumstances.

If the previous unqualified concept of harm did in fact influence hypersensitive reporting (over reporting, or the making of clearly unnecessary reports) before this change, then if this change has been conveyed to reporters, it may be expected that there has been a reduction in such practice – ie fewer ‘clearly unnecessary’ reports – especially for exposure to domestic violence and neglect.

New category of reportable harm: school attendance (commencing 24 January 2010)

The Wood legislation added a new s 23(b1) which required reports where parents or caregivers have not arranged and are unable or unwilling to arrange for the child to receive an education where they are required to attend school in accordance with the Education Act 1990.

This may be expected to have resulted in an increase in reports under this category (or as a type of neglect).

Major change by removing the penalty from s 27(2) (commencing 24 January 2010)

At 1 January 2003, the penalty for failure to report was maximum of 200 penalty units. This equated to $22 000 (see Table 6). In a major change, the Wood legislation removed the penalty from s 27 (Children Legislation Amendment (Wood Inquiry Recommendations) Act 2009 No 13, Schedule 1.1 [7]).¹⁷

If the penalty previously had any influence on hypersensitive reporting (over reporting, or the making of clearly unnecessary reports), then if this change has been conveyed to reporters one may expect a reduction in such practice ie fewer ‘clearly unnecessary’ reports.

Alternative reporting via s 27A (commencing 24 January 2010)

To enable the new focus on differential response which was promoted by the Wood legislation, the amendments also added a new s 27A (Sch 1.1 [8]). This enabled mandated reporters to make a report to the assessment officer of designated agencies who had created such arrangements (Child Well Being Units: eg in health, education, police and juvenile justice) (s 27A(2)), and this report would meet the mandated reporter’s duty under s 27 (S 27A(6)).

After receiving the report, the assessment officer is to assess whether the matter should be reported to the Director-General under s 27 (s 27A(3)).

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