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Child Protection (Mandatory Reporting - Mason's Law) Amendment Bill 2016
Explanatory Notes
Short title
The short title of the Bill is the Child Protection (Mandatory Reporting-Mason's Law)
Amendment Bill 2016
Policy objectives and the reasons for them
Mandatory reporting laws are enacted in each Australian jurisdiction. It is broadly accepted
that these laws are an important component of the broader child protection system.
Currently in Queensland the Child Protection Act 1999 (the Act) identifies the following
groups as mandatory reporters:
• a doctor
• a registered nurse;
• a teacher;
• a police officer who works in child protection; and
• a person engaged to perform a child advocate function under the Public Guardian
Act 2014 (Qld).
Queensland and Western Australia are the only two Australian jurisdictions that do not
extend mandatory reporting to the Early Childhood Education and Care sector (ECEC
sector).
Whilst previous reviews into the child protection system in Queensland have looked at the
mandatory reporting provisions they have not recommended that they be expanded to
include the ECEC sector. The most recent inquiry1 recommended that mandatory reporting
requirements be consolidated into one provision and that a consistent approach to reporting
child protection concerns be established. These changes commenced after a period of
training and education on 1 January 2015.
On 6 November 2014, the Queensland Law Reform Commission (the Commission) was
requested by the then Government to review child protection mandatory reporting laws for
the ECEC sector.
The overwhelming majority of submissions received by the Commission supported extending
the mandatory reporting obligation under the Act to apply to the ECEC sector. The
Commission recognised 'the protective role of the ECEC sector in relation to children aged
0-5 years, who are particularly vulnerable. Staff employed in ECEC services are in regular
and direct contact with children and their families, and are well-placed to observe and report
concerns that children are at risk of significant harm, thereby enabling timely intervention
and the protection of children from harm'.
It also noted that ECEC services are already subject to child protection obligations, have
internal policies and procedures in place and can, and do, voluntarily report concerns
to Child Safety. The Commission considered that the expansion of the mandatory
reporting obligation to the ECEC sector aligned with these existing obligations. It also
aligned with the increasing regulation of ECEC services and professionalisation of the
workforce that has taken place in recent years.
The Commission's report titled 'Review of Child Protection Mandatory Reporting Laws for
the Early Childhood Education and Care Sector' was presented to Government in December
1 Queensland Child Protection Commission of Inquiry
2015. It made a key recommendation that the mandatory reporting provisions in Queensland
be expanded to apply to the ECEC sector.
In accordance with the Commission's recommendation, the objective of this Bill is to ensure
that mandatory reporting obligations apply to the ECEC sector individuals identified by the
Commission.
The Commission found that extending the mandatory reporting obligation to certain
individuals in the ECEC sector could be adequately addressed through appropriate training
and education about the scope and content of the reporting obligation, and the provision of
adequate support and resourcing to the ECEC sector to fulfil the obligation.
Implementing this Bill will provide for sufficient time for the Department of Education to
prepare a comprehensive training and education program about the scope of the reporting
obligation prior to proclamation on the operation of the legislation on 1 January 2017.
Achievement of policy objectives
To achieve the policy objectives the Bill will amend the Act to include three additional
categories of mandated reporters under Chapter 2, Part 1AA, Division 2, 13E.
It is noted that the exact phraseology used in the Commission's report is not reflected in the
Bill as the wording needs to reflect Queensland's current drafting practice and account for
the various defined terms used in the Act and the Education and Care Services National Law
(Queensland) Act 2011.
The Commission's report identifies in the list of recommendations that mandatory reporting
is only to apply to individuals2, where it sets out 'which individuals should the mandatory
reporting obligation apply to'.
The amendment is therefore reflected as:
(f) an individual who is--
(i) a Queensland approved provider under the ECS Act; or
(ii) an approved provider under the ECS National Law;
(g) a supervisor for, or a staff member who holds an approved qualification of, a QEC
service under the ECS Act;
(h) the nominated supervisor, or a staff member who holds an approved qualification, of
an education and care service under the ECS National Law.
Note: ECS National Law means the Education and Care Services National Law
(Queensland); and ECS Act means the Education and Care Services Act 2013.
The addition of Section 13E(1), paragraph (f) will limit the application to 'an individual who is'
an approved provider. The word 'person' is defined in the Acts Interpretation Act 1954 (Qld)
as including corporations. It is therefore appropriate to only apply the mandatory reporting
obligation to approved providers who are individuals, and not corporations.
The insertion of section 13E(1), paragraphs (g) and (h) are intended to cover all persons
employed (ie. family day care coordinators, family day care educators etc), provided those
persons hold the relevant approved qualification.
Alternative ways of achieving policy objectives
The proposed legislation is essential to commence implementation of the recommendations
made by the Commission. There are no alternative ways of achieving the recommendation
as it relates to a mandatory reporting obligation of certain individuals.
2 In accordance with the Commission's recommendation, neither volunteers nor staff members who do not meet
the minimum professional qualification requirements would be subject to the mandatory reporting obligation.
Estimated cost for implementation
Cost in relation to the Bill can be met from contingency allocations to the Queensland Child
Protection Reform.
Consistency with fundamental legislative principles
The Bill is fundamentally consistent with the legislative principles of mandatory reporting
whereby 'the safety, wellbeing and best interests of a child are paramount'.
In developing their recommendations, the Commission noted it was guided by six key
considerations that are consistent with fundamental legislative principles:
• the paramount principle of protecting children from harm or risk of harm;
• the critical protective role of the ECEC sector in relation to children aged 0-5 years,
who are particularly vulnerable;
• that staff employed in ECEC services are in regular and direct contact with children
and their families, and are well-placed to observe and report concerns that children
are at risk of significant harm, thereby enabling timely intervention and the protection
of children from harm;
• that the threshold for a 'reportable suspicion' under the mandatory reporting provision
in section 13E of the Act is confined to significant harm 'caused by physical or sexual
abuse' where the child 'may not have a parent able and willing to protect the child
from harm';
• that mandatory reporting aligns with the existing child protection obligations of the
ECEC sector; and
• the increasing regulation of ECEC services and staff qualification requirements for its
workforce.
Consultation
Extensive consultation has occurred during the Commission's review which can be found in
Chapter 1 (1.20) of its report. It includes the release of a Discussion Paper and call for
submissions, along with consultation meetings with a number of key stakeholders including
Government Departments and representative bodies of the ECEC sector. A total of 29
written submissions were received by the Commission (a full list of respondents can be
found in Appendix B of the Commission's report).
Consistency with legislation of other jurisdictions
The extension of mandatory reporting to certain individuals in the ECEC sector in
Queensland is a step towards national consistency. Currently, the legislation in the
Australian Capital Territory, South Australia, Tasmania, Victoria, New South Wales and the
Northern Territory specifically includes certain child care providers or employees as
mandatory reporters (although the Victorian provision has not yet commenced operation).
Notes on provisions
Clause 1 refers to the short title of the Bill.
Clause 2 confirms that the amendments to the Child Protection Act 1999 commence on
1 January 2017.
Clause 3 refers to Chapter 2, Part 1AA, Division 2, 13E which amends the Child Protection
Act 1999.
Clause 4 amends the scope of mandatory reporting by persons engaged in particular work to
reflect the additional ECEC sector individuals.