Recordkeeping and information sharing

Problems with records and recordkeeping

Inadequate records and recordkeeping have contributed to delays in or failures to identify and respond to risks and incidents of child sexual abuse and have exacerbated distress and trauma for many survivors. Obstructive and unresponsive processes for accessing records have created further difficulties for survivors seeking information about their lives while in the care of institutions.

Problems with records and recordkeeping practices are not confined to the past. During our inquiry we heard about poor records and recordkeeping practices by contemporary institutions such as non-government schools and agencies providing out-of-home care, as well as by historical institutions.

While recent reforms to legislation, policy and practice have improved records and recordkeeping practices, it is clear that institutional practices require further change.
Institutions must dedicate time and resources to creating good records and managing those records. They also need to train their staff in the importance of records to institutional accountability and the promotion of child safety, as well as to the individuals whose lives are documented in them.

Records and recordkeeping principles

We recommend that all institutions that engage in child-related work implement the following five high-level principles for records and recordkeeping, to a level that responds to the risk of child sexual abuse occurring within the institution (see Recommendation 8.4):

1. Creating and keeping full and accurate records relevant to child safety and wellbeing, including child sexual abuse, is in the best interests of children and should be an integral part of institutional leadership, governance and culture.
2. Full and accurate records should be created about all incidents, responses and decisions affecting child safety and wellbeing, including child sexual abuse.
3. Records relevant to child safety and wellbeing, including child sexual abuse, should be maintained appropriately.
4. Records relevant to child safety and wellbeing, including child sexual abuse, should only be disposed of in accordance with law or policy.
5. Individuals’ existing rights to access, amend or annotate records about themselves should be recognised to the fullest extent.

These five high-level principles are intended to promote best practice by institutions. They have been shaped to provide flexibility, recognising that the institutions within our Terms of Reference vary considerably in size, function, responsibility, funding, resources and regulation. The principles are intended to complement institutions’ existing recordkeeping obligations and to be adaptable to the different circumstances they face.

Good recordkeeping is an important part of making and supporting institutions to be child safe. Our principles for records and recordkeeping are supplementary to our 10 recommended Child Safe Standards – in particular, Child Safe Standard 1: Child safety is embedded in institutional leadership, governance and culture (Recommendation 6.5).

State and territory governments should require all institutions that care for or provide services to children to comply with the five principles for records and recordkeeping. This is consistent with our recommendation to implement our 10 Child Safe Standards (see Recommendation 6.4). Oversight bodies in each state and territory would be responsible for monitoring and enforcing compliance with the principles in line with the flexible approach to enforcement discussed in Volume 6, Making institutions child safe.

Minimum records retention periods

We also recommend that institutions that engage in child-related work retain, for at least 45 years, records relating to child sexual abuse that has occurred or is alleged to have occurred. This is to allow for delayed disclosure of abuse by victims and to take account of limitation periods for civil actions for child sexual abuse (see Recommendations 8.1 to 8.3).

Access to records

As noted, during our inquiry survivors expressed particular concern about difficulties they had encountered accessing records held by institutions. In accordance with our recommended records and recordkeeping Principle 5, individuals whose childhoods are documented in institutional records should have a right to access records made about them. Full access should be given unless it is contrary to law. Specific, not generic, explanations should be provided in any case where a record, or part of a record, is withheld or redacted.

Individuals should be made aware of, and assisted to assert, their existing rights to request that records containing their personal information be amended or annotated; and to seek review or appeal of decisions refusing access, amendment or annotation.

Records advocacy services

Records advocacy services should be an important component of improving service responses more generally for children and adults who have experienced sexual abuse in childhood.

We recommend in Volume 9, Advocacy, support and therapeutic treatment services that the Australian Government and state and territory governments fund dedicated community support services to provide an integrated model of advocacy and support and counselling to children and adults who experienced childhood sexual abuse in institutional contexts (Recommendation 9.1). We also recommend that the Australian Government establish and fund a legal advice and referral service for victims and survivors of institutional child sexual abuse (Recommendation 9.4). Both the community support services and the legal advice and referral service should include records advocacy.

Enforcing the records and recordkeeping principles

State and territory governments should require all institutions that engage in child-related work to comply with the five principles for records and recordkeeping, consistent with our recommendations for implementing our 10 Child Safe Standards (Recommendations 6.8 to 6.11).

Oversight bodies in each state and territory would be responsible for monitoring and enforcing compliance with the principles in accordance with the flexible approach to enforcement discussed in Volume 6, Making institutions child safe.

Existing regulatory frameworks may also be used to monitor and enforce the records and recordkeeping principles in some types of institutions. Consistent with this approach, we also recommend that state and territory governments ensure that all schools are required to comply with the standards applicable to government schools in relation to creating and keeping records relevant to child safety and wellbeing, including child sexual abuse (Recommendation 8.5).

The importance of information sharing

Information sharing is important to protect children in institutions from child sexual abuse. Information sharing between institutions with responsibilities for children’s safety and wellbeing, and between those institutions and relevant professionals, is necessary to identify, prevent and respond to incidents and risks of child sexual abuse.

During our inquiry we heard examples of relevant information either not being shared, or not being shared in a timely and effective manner. This can have and has had serious consequences, including enabling perpetrators to continue their involvement in an institution or to move between institutions and jurisdictions and pose ongoing risks to children. Inadequate information sharing within and between institutions, such as schools, about the harmful sexual behaviours of children can compromise the safety of other children in those institutions.

Barriers to information sharing

Inadequate information sharing is not only an historical problem. The evidence and information before us indicated that there are still a number of barriers to timely and appropriate information sharing to protect children from child sexual abuse in institutions.

The sharing of personal and sensitive information is restricted by obligations under privacy legislation, confidentiality or secrecy provisions in legislation governing the provision of services for children, and other laws. While all jurisdictions have some form of legislative or administrative arrangements to enable information sharing to protect children, these arrangements are limited in a number of ways, especially with respect to information exchange across state and territory borders.

Even where information sharing is legally permitted or required, there may be reluctance to share. Concerns about privacy, confidentiality and defamation, and confusion about the application of complex and inconsistent laws, can create anxiety and inhibit information sharing. Institutional culture, poor leadership and weak or unclear governance arrangements may also inhibit information sharing and, as a result, undermine the safety of children.

Elements of a national information exchange scheme

We recommend that nationally consistent legislative and administrative information exchange arrangements be established in each jurisdiction (see Recommendation 8.6). These arrangements should:

• provide for prescribed bodies to share information related to children’s safety and wellbeing, including information relevant to child sexual abuse
• establish an information exchange scheme to operate in and across Australian jurisdictions.

The information exchange scheme should be consistent across jurisdictions (Recommendation 8.7) and should:

• enable direct exchange of relevant information between a range of prescribed bodies, including service providers, government and non-government agencies, law enforcement agencies, and regulatory and oversight bodies, which have responsibilities related to children’s safety and wellbeing
• permit prescribed bodies to provide relevant information to other prescribed bodies without a request, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts
• require prescribed bodies to share relevant information on request from other prescribed bodies, for purposes related to preventing, identifying and responding to child sexual abuse in institutional contexts, subject to limited exceptions
• explicitly prioritise children’s safety and wellbeing and override laws that might otherwise prohibit or restrict disclosure of information to prevent, identify and respond to child sexual abuse in institutional contexts
• provide safeguards and other measures for oversight and accountability to prevent unauthorised sharing and improper use of information obtained under the information exchange scheme
• require prescribed bodies to provide adversely affected persons with an opportunity to respond to untested or unsubstantiated allegations, where such information is received under the information exchange scheme, prior to taking adverse action against such persons, except where to do so could place another person at risk of harm.

Supporting implementation and operation

Clear and robust information sharing arrangements, like those we recommend, will go a significant way to overcoming many of the current barriers to information sharing.  However, legislative and policy reforms alone will not improve practice and create a culture of information sharing among agencies and institutions with responsibilities for children.

Considerable action, commitment and resource investment by Australian governments as well as institutions will be required to effectively implement reforms and improve institutional responses to child sexual abuse. This will need to be a coordinated effort across all jurisdictions.

For example, guidelines should be available to support individuals to make decisions about sharing information in accordance with the recommended information exchange scheme. Such guidelines could describe relevant legislative provisions, including privacy laws, plainly and in one accessible document.

More generally, for information sharing arrangements to operate effectively, they must be supported by organisational and professional cultures with strong governance and practice leadership, which understand and observe the proper limits of privacy. Staff need training and support in how to use information appropriately to assess risk.

A central contact point in each jurisdiction could provide institutions and individuals with advice on sharing information under the scheme. State and territory governments should consider whether an ombudsman, privacy commissioner or other body that provides an accountability mechanism and oversight for an information sharing scheme should also act as a contact point for prescribed bodies, and provide them with support and advice.

We recommend that the implementation of the information exchange scheme be supported with education, training and guidelines (Recommendation 8.8).

Phased implementation and review

Implementing our recommended information exchange scheme will have significant administrative and cost implications for governments and institutions. It will take time for state and territory governments to reach agreement on the aspects of the scheme that require consistency to ensure information can be shared effectively between jurisdictions, as well as within jurisdictions. In addition, institutions will need time to understand what is required, and how they can implement the scheme. Accordingly, a phased approach to agreeing on and including institution types in the scheme may be appropriate.

Our recommended information exchange scheme should be subject to a scheduled statutory review and evaluation of its operation.

Reforms in the schools and out-of-home care sectors

Information sharing arrangements and practices in the schools and out-of-home care sectors could be strengthened to assist institutions to better identify, prevent and respond to incidents and risks of child sexual abuse.

We recommend reforms, including in relation to sharing information about teachers and students and carers, which would complement and be supported by our recommended
information exchange scheme. Teacher registers and carers registers could also operate to enhance information sharing by collecting information relevant to child sexual abuse, and making it available to be shared, under our recommended information exchange scheme.

Improving information sharing in the schools sector

Evidence and information before the Royal Commission illustrated the risks to children that arise when information about child sexual abuse by teachers is not shared. Lack of information sharing between teacher registration authorities and employers can enable alleged perpetrators to move between schools and jurisdictions.

Improving teacher registration laws and registers

There is an existing mechanism for sharing information about teachers that may be improved to address this problem. Teacher registers, and the state and territory laws that underpin them, are a key mechanism for sharing information about teachers who may pose a risk of child sexual abuse. The registers capture and provide a platform to share information about teachers, including across jurisdictions. These existing mechanisms may be enhanced to better capture and share information about teachers relevant to risks of child sexual abuse.

The efficacy of registers as information sharing mechanisms about teachers who may pose risks to students’ safety depends on what information is recorded on the registers, and who may access this information. There are significant inconsistencies across state and territory laws in these respects, and regarding information sharing by state and territory registration authorities more generally.

We consider that improved, and nationally consistent, capture of information on teacher registers would provide a stronger platform for information sharing about teachers. Provisions regarding registration authorities sharing information about teachers should be consistent across jurisdictions, and improved to facilitate more effective information sharing about child sexual abuse.

This would ensure that registration authorities provide their state and territory counterparts, and teachers’ employers, with consistent and adequate access to information on teacher registers, and notification of circumstances relating to teachers and allegations or incidents of child sexual abuse.

In this context, we recommend that the Council of Australian Governments (COAG) Education Council consider the need for nationally consistent state and territory legislative requirements about the types of information recorded on teacher registers (see Recommendation 8.9); and nationally consistent teacher registration laws providing that teacher registration authorities may make information on teacher registers available to authorities in other states and territories and to teachers’ employers (see Recommendation 8.10).

The COAG Education Council should also consider the need to ensure that teacher registration authorities notify authorities in other states and territories and teachers’ employers of certain information relating to allegations or incidents of child sexual abuse, such as information about disciplinary actions, investigations and outcomes, and resignations or dismissals from employment (see Recommendation 8.11).

We recognise the need to provide privacy and other safeguards to protect information about teachers from unauthorised or inappropriate disclosure. In considering improvements to teacher registers and information sharing by registration authorities, the COAG Education Council should also consider what safeguards are necessary to protect teachers’ personal information (Recommendation 8.12).

Information sharing about school staff other than teachers

School staff other than teachers include counsellors as well as other support and administrative staff (such as learning support officers, Aboriginal education officers and paraprofessionals). Sharing information about school staff is necessary where they may pose a risk of sexual abuse to children. It enables their employers to take action to address the risk to students. It may also prevent the staff member from moving between schools, including to schools in different jurisdictions.

In most states and territories, there is no specific legislation regulating information sharing about non-teaching staff in the schools sector.

Our recommended information exchange scheme could facilitate information sharing about non-teaching staff between schools (including schools in different systems and jurisdictions) and between schools and other agencies. It would apply to non-teaching school staff where Australian governments prescribe bodies that provide education services to children under the scheme. Information that could be shared under the recommended scheme relates to the ‘safety and wellbeing of children’, and could include risks of child sexual abuse posed by non-teaching staff members.

Information sharing about students between schools

Generally, transferring a students’ relevant information to their next school assists the school to address the student’s educational and support needs, and to meet its legal obligations, including its duty of care.

In particular, this may be necessary when the student moving has engaged in sexually harmful behaviours and, as a consequence, may pose risks to other students, or has experienced sexual abuse and as a consequence has particular educational and support needs.

The arrangements for sharing information about students between schools vary significantly across jurisdictions and school systems. These arrangements can be provided, for example, in state and territory child protection or education laws.

We recommend that state and territory governments ensure that policies provide for the exchange of a student’s information when they move to another school, where:

• the student may pose risks to other children due to their sexually harmful behaviours or may have educational or support needs due to their experiences of child sexual abuse, and
• the new school needs this information to address the safety and wellbeing of the student or of other students at the school (see Recommendation 8.13).

These policies should apply across government and non-government school systems, and provide that the principal (or other authorised information sharer) at the student’s previous school is required to share this information with the new school (Recommendation 8.14).  We also make recommendations about safeguards in relation to sharing this information (Recommendation 8.15).

Improving information sharing between schools in different jurisdictions

The Interstate Student Data Transfer Note and Protocol (ISDTN) provides a national system for information sharing, where students move from one state or territory to another. When a student from another jurisdiction enrols at a school, that school must use ISDTN processes to request the transfer of information from the previous school, and the previous school must comply with the request.

Our recommended information exchange scheme could provide a broader platform for existing procedures for inter-jurisdictional transfer of information related to risks of child sexual abuse or needs arising from a history of child sexual abuse. This is important given the limitations of the ISDTN in facilitating the sharing of such information.

We recommend that the COAG Education Council review the ISDTN in implementing our recommended information exchange scheme (Recommendation 8.16).

Improving information sharing in the out-of-home care sector

We have learned that inadequate information sharing between out-of-home care agencies about carer suitability can place children in care at risk. Our recommended reforms to improve information sharing about carers are aimed at reducing the risk of sexual abuse of children in care by carers and others in their household. This would be achieved by assisting the agencies responsible for assessing, authorising and supervising carers to make better-informed decisions about carer suitability and placement safety.

It is important that agencies responsible for screening, authorising and supervising carers – whether non-government out-of-home care service providers or government agencies – are able to obtain sufficient information to assess and manage risks of child sexual abuse in out-of-home care contexts. Current arrangements for sharing information relevant to carer suitability and placement safety do not appear adequate to address these risks.

Arrangements for sharing information about carers include those in information exchange schemes under child protection legislation and inter-jurisdictional protocols. However, these are subject to significant constraints, particularly in relation to the capacity of non-government providers to access and share information relevant to carer suitability. With greater contracting out of out-of-home care services by governments in some jurisdictions, more carers with problematic histories may be transferred from government to non-government providers, or move between different out-of-home care providers. As a result, relevant records may be fragmented and dispersed among different out-of-home care providers, increasing the risks of harm to children in care due to poorly informed decision making.

The need for carers register reforms

Some jurisdictions maintain a carers register as a standalone central index of information about people who have applied for authorisation or are authorised to care for children in out-of-home care in that jurisdiction. Information on these registers can be accessed by approved organisations. Other jurisdictions record this information on a government database available to employees of the relevant statutory child protection agency only.

Existing carers registers vary in the range of information they capture. There are also differences between jurisdictions as to whether the registers are legislatively or administratively established and governed, whether they are maintained by an independent out-of-home care regulator or by the jurisdictional child protection agency, and in the bodies that have access to the register. With variable and often limited arrangements for capturing relevant information about carers, opportunities to promote children’s safety in out-of-home care may be missed.

Minimum national consistency in carers registers

We recommend that state and territory governments introduce legislation to establish carers registers in their respective jurisdictions. We recommend these registers are consistent in relation to the carer types on the carers register; the types of information which, at a minimum, should be recorded on the register; and the types of information which, at a minimum, must be made available to agencies or bodies with responsibility for assessing, authorising or supervising carers (Recommendations 8.17 and 8.19).

Our consideration of which carer types should be included on jurisdictional registers was informed by our understanding of the risk of sexual abuse of children in different placement types, and research on the different dimensions and degrees of risk of child sexual abuse in out-of-home care and other institutional contexts. On the basis of this assessment, we recommend the inclusion on carers registers of foster carers, relative/kinship carers and residential care staff (Recommendation 8.17).

The placement of children with disability in voluntary out-of-home care, and their particular vulnerability to abuse, creates a strong case for also including carers in these institutional settings on carers registers. However, this presents significant challenges. The existing regulatory framework recognises that voluntary out-of-home care providers should not be subject to intensive accreditation, as parents retain responsibility for the child or young person. In addition, the variability of voluntary out-of-home care arrangements both across and within jurisdictions, and limited regulation and oversight in some jurisdictions, may make some voluntary out-of-home care arrangements difficult to identify.

Types of information recorded and shared

We have considered carefully the types of information that should be recorded and shared on carers registers, including by reference to the model provided by the New South Wales Carers Register.

Carers registers need to specifically capture complaints or allegations against applicant and authorised carers, their household members and residential care staff. However, we have concluded that including information about all complaints would be excessive. Rather, carers registers should include only information about reportable conduct. Conduct that is reportable generally includes abuse or neglect of a child, including sexual abuse, physical abuse or psychological abuse (see Volume 7, Improving institutional responding and reporting).

We recommend that state and territory governments consider the need for carers registers to include, at a minimum, certain information about applicant or authorised carers, and household members. This should include information about: the lodgement or grant of applications for carer authorisation; the status of carer authorisation checks; the withdrawal, refusal, cancellation or surrender of applications for authorisation in circumstances of concern (including in relation to child sexual abuse); previous or current association with an out-of-home care agency, whether by application for authorisation, assessment, grant of authorisation, or supervision; and the date of reportable conduct allegations and their status (see Recommendation 8.19).

Compliance with minimum assessment and authorisation requirements

Carers registers are likely to promote children’s safety in out-of-home care more effectively if they extend their operation beyond databases of carer records to function as legislatively mandated tools for the implementation of minimum carer assessment and authorisation requirements.

In Volume 12, Contemporary out-of-home care we identify the minimum processes and checks that should be undertaken for authorisation of foster and relative/kinship carers and residential care staff (Recommendations 12.6 to 12.8). We identify, in particular, the strong need for more effective oversight of residential care staff and the risks to young people in these environments. We recognise the need for expanded accreditation and support of kinship carers, but also the challenges this may present for many communities.

Nationally consistent carers registers should support the implementation of minimum assessment and authorisation requirements by obliging responsible agencies to record whether or not the requirements have been satisfied, and preventing authorisation where those requirements have not been satisfied. By operating as a mandated authorisation tool, carers registers can serve to both ensure agencies’ compliance with their regulatory obligations, and assist them to prevent and respond to inappropriate authorisation.

We recommend that state and territory governments consider the need for legislative and administrative arrangements to require responsible agencies to record register information in minimal detail, record register information as a mandatory part of carer authorisation and update register information about authorised carers (Recommendation 8.20).

Access to register information

Making relevant register information available to agencies or bodies with responsibilities related to carer suitability will help to ensure that those who pose risks to children’s safety are not authorised as carers.

Regulatory and structural arrangements for out-of-home care vary considerably between jurisdictions. This includes variation in the roles and responsibilities of government and non-government organisations and arrangements for monitoring, oversight and accountability in relation to out-of-home care service provision.

Some variation in arrangements for access to register information will be required to accommodate such jurisdictional differences. This should not, however, compromise the basic level of consistency required for certain essential purposes – for example, to ensure those responsible for authorisation have adequate access to register information, and for the inter-jurisdictional utility of registers.

We recommend that state and territory governments consider the need for effective mechanisms to enable agencies and bodies to obtain relevant information from registers in any state or territory holding such information. Consideration should be given to legislative and administrative arrangements, and digital platforms, which will enable agencies to obtain relevant information from their own and other jurisdictions’ registers for the purpose of exercising their responsibilities and functions (Recommendation 8.22).

State and territory governments should also consider the need for guidelines and training to promote the proper use of carers registers for the protection of children in out-of-home care, and the need for specific safeguards to prevent inappropriate use of register information (Recommendation 8.23).