Working with Children Checks not reviewed despite sexual misconduct findings

Victoria's former children's commissioner used discretionary power not to refer people found to have committed sexual misconduct for a Working with Children Check review, the ABC can reveal.

It seemingly contradicts evidence from former commissioner Liana Buchanan to a parliamentary inquiry last year that she would never have used the discretionary power in cases involving any sexual element "whatsoever".

The apparent inconsistency can be revealed after a months-long ABC fight for information over the types of cases in which the power was used.

The Commission for Children and Young People, headed by the children's commissioner, ran the state's Reportable Conduct Scheme for almost nine years, overseeing the handling of child abuse and misconduct allegations in organisations such as childcare, schools, religious groups and disability care.

Under the scheme, organisations would investigate allegations and report to the commission on whether abuse or misconduct had occurred.

The commission routinely referred people subject to "substantiated allegations" to a separate unit that would review their Working with Children Check, but had discretionary power not to refer a case if it felt it could be better dealt with training or supervision.

Ms Buchanan told a parliamentary inquiry last year that she would have only decided not to refer cases "in circumstances where there were no sexual elements to the conduct whatsoever".

But data obtained by the ABC shows 10 substantiated sexual misconduct reports were among the 255 substantiated allegations not referred.

It is understood one of the 10 sexual misconduct allegations, as well as one sexual offence, was not referred because the subject of the complaint had died.

The ABC asked Ms Buchanan to explain the apparent inconsistency between the data and her public statement, and how substantiated sexual misconduct allegations could be considered to have no sexual element.

"The legislative definition of 'sexual misconduct' is very broad and can include, for example, an adult making a crude joke or inappropriate comment in front of children,"

she said.

Ms Buchanan said she was "particularly alert to the risks of sexual abuse and misconduct against children", noting that substantiation rates for sexual misconduct allegations increased from 21 per cent to 48 per cent during her time as commissioner.

"It was therefore my practice to refer findings of reportable conduct with a sexual element to the Worker Screening Unit — meaning cases where there was any suggestion of sexual motivation or intention, or any physical contact, or any potential for or prospect of harm to a child," she said.

"I have been briefed on the sexual misconduct matters that were not referred to the Worker Screening Unit; they relate to six incidents/individuals and involved either a subject who had died by the time the investigation was complete or they did not feature any of the elements described above."

Both the law governing the Reportable Conduct Scheme and advice issued by the commission clearly defines sexual misconduct as being "of a sexual nature".

The advice also says it covers "a broad range of misconduct of a sexual nature that can pose a significant risk to children, even if it falls below the criminal threshold".

"Even if the misconduct does not involve a part of the body, and the reasons for the misconduct did not involve potential or actual sexual arousal or gratification, misconduct may still be misconduct if it is overly personal or intimate," it says.

Neither the commission nor Ms Buchanan, who is now a deputy at Victoria's anti-corruption commission, responded directly to questions about whether they would clarify the evidence to the parliamentary inquiry.

The inquiry has completed its public hearings but is yet to release its final report.

Opposition education spokesman Brad Rowswell described the inconsistency as an "unacceptable circumstance" given the definition of sexual misconduct was clear.

"If the parliamentary inquiry where the evidence was given needs to be reopened — it should be,"

he said.

"If the now former commissioner needs an opportunity to further explain, amend or retract her evidence — the minister should enable that opportunity," Mr Rowswell said.

Regulator now reviewing all cases previously not referred

The ABC last year revealed alleged childcare paedophile Joshua Brown was the subject of substantiated reportable conduct in the years before his arrest, and that Ms Buchanan had used the discretionary power not to refer him for a Working with Children Check review.

As part of a scathing review of Victoria's child safety regulators, the commission was later stripped of its responsibility for running the Reportable Conduct Scheme.

The discretionary power not to refer cases was also removed.

Under the overhaul, an authority called the Social Services Regulator assumed responsibility for both the Reportable Conduct Scheme and Working with Children Check unit.

It is now reviewing all cases that were previously not referred as part of its "risk-based approach".

This includes dozens of allegations related to physical violence, significant neglect and behaviour that caused significant emotional or psychological harm to a child.

CONDUCT CATEGORY NUMBER OF ALLEGATIONS Physical violence 76 Sexual misconduct* 10 Sexual offence* 1 Significant neglect of a child 142 Significant emotional or psychological harm to a child 26

*The ABC understands the sexual offence and one of the 10 sexual misconduct allegations were not referred as the subject had died.

The 255 non-referred reports accounted for about 4 per cent of the total substantiated allegations.

While the reviews are yet to be completed, none have so far resulted in someone being stripped of their clearance to work or volunteer with children.

Despite this, the head of the Social Services Regulator, Jonathan Kaplan, told the ABC the details were vital to have in case further information came to light.

He said it was important for the system to be able to quickly identify patterns or behaviour that indicate children could be at risk.

Mr Kaplan added: "If these pieces of information on their own don't generate an action, they are a breadcrumb," he said.

"If we get another breadcrumb, then it might be two or three breadcrumbs [that] actually get us to a point where we might have a different view or action."

'Families deserve full transparency'

Details around the commission's use of its discretionary powers can be revealed after a protracted battle for the data to be released publicly.

In February, the commission refused to release the data to the ABC, claiming it would risk "providing individually identifying information contrary to our legislative restrictions".

Minister for Children Lizzie Blandthorn also failed to provide it when asked for the information via a question in state parliament.

The Social Services Regulator also initially refused to confirm whether sexual misconduct allegations were among those not referred.

However, it later provided the data after the ABC indicated it would pursue it under Freedom of Information provisions.

Greens MP Anasina Gray-Barberi said "families deserve full transparency and accountability".

"It should not take months of questioning, media stories, and [freedom of information requests] for basic information about the operation of child safety systems to come to light," she said.

Asked why he released the data when the commission and minister had not, Mr Kaplan said it was important to highlight how reforms were being implemented.

"Hopefully it provides some transparency and confidence in the system evolving and changing," Mr Kaplan said.

"That's one of the important things that we have got to do."

Regulator given new powers to act earlier

Victorian authorities have been under intense scrutiny after a series of cases, including alleged childcare paedophile Joshua Brown, exposed flaws in the state's child safety systems.

Sweeping reforms are now being rolled out, including to strengthen the Working with Children Check scheme.

A key change will allow authorities to revoke or deny a check on the basis of unsubstantiated allegations to the Reportable Conduct Scheme — powers they did not previously have.

Mr Kaplan said it would "strengthen the system because it allows for a consideration of broader information and the ability to act earlier".

Asked whether a stronger system would eliminate risk to children, Mr Kaplan said: "I think it's impossible to say every element of risk can be eliminated.

"But I do think it is important to make sure that we keep looking at how we are evolving as unfortunately predators … also evolve relative to the rules and the checks and balances we put into place."

Amid the strong public focus on safety in childcare, Mr Kaplan said the system needed to be strong across the board.

"What I really don't want to see happen is predators move from one sector to another because we focused on one area but not on the entirety of the system," he said.

"Anywhere with children, particularly young children who can't always express what their needs are or other things, would always require a high degree of focus."