New Rules for the Digital Age NSW Ombudsman Symposium 26 May 2009

 Identify the main issues for agencies working with children/young people  Current legal and practical considerations  Consider best practice response – whose responsibilities Aim of Discussion

Digital technology =

What we know….   Today’s preferred communication method of young people   Many positives – many opportunities (for children, young people, staff & agencies)   Generation gap   Its here to stay   There are risks if misused ……..

Risks with Misuse   Bullying experiences – extended and escacebated   Predatory and grooming   Exposure to inappropriate content   Over use – health complications   Social skills

Why risks are so high….. Hard to see   Not always visually evident   Don’t know what to look for Continual   New development constantly   24/7 availability   In homes, preschools, classrooms, playgrounds, buses, beaches, pockets

Why risks are so high….. Degree of risk   Only seen the tip of the iceberg to date   All ages, all places, all cultures   Availability and access   Public domain External influences   Eg: peers, parents, no 24/7 surveillance Harm   It’s real   Can be long term (public, reputation)

Our Experience:  Reactive service delivery on managing inappropriate use of digital technology Our Approach:  Proactive risk management service delivery NSW Ombudsman Symposium 26 May 2009

Essentials for employers… A leadership role Staff mentoring good usage Multi-faceted approach is essential (Theme of symposium- Working Together: advancing child protection in the workplace)

Summary of Legal Issues Duty of Care for Children  Deliver safe services to children (onerous)  Keep kids safe from harmful risks that are not insignificant  Fulfil primary purpose of service  Ensure health and overall well-being of children

Summary of Legal Issues Duty of Care for Staff  Keep staff safe from harmful risks that are not insignificant  Adhere to OHS and other responsibilities

Duty of care elements Courts will ask :  Was the risk of harm reasonably foreseeable?  What was the probability that the incident would occur?  How serious would the harm be if the incident occurred?  What precautions did you take to reduce the risks?

Summary of Legal Issues  Lack of precedents on cyber safety issues and duty of care  We rely on application of principles applied in cases that do not apply to use of digital technology  Other laws are still new eg: criminal and telecommunications

Emerging legal issues – the relationship Neighbour principle broadening (duty of care)  1996 first case involving the Trustees of Roman Catholic Church of the Diocese of Bathurst “…Undoubtedly … a particular duty of care arises because of a pre-existing relationship….”  2005 High Court case - Trustees of Roman Catholic Church for the Diocese of Canberra and Goulburn v Hadba [2005].

Emerging legal issues – the relationship Neighbour principle broadens duty of care  Technology has caused a change in culture Examples: - Schools: learning neighbourhood between staff, parents and local community - Implications for child care centers and preschools - Implications for young people in work places

 What is viewed as “reasonably foreseeable” is extending  Beyond… if we did not see it then it is not reasonably foreseeable Cox v State of New South Wales …not based on the teachers actual ability or capability but the particular relationship between the student and teacher (headmaster). Emerging legal issues

This case raised issues that are significant: 1) An authority must take substantial to address potentially harmful conduct 2)Lack of knowledge or ability will not necessarily be a defence Consider this when working with children and:  Digital communication - an essential tool  Digital communication blurs traditional professional boundaries Emerging legal issues

 What are the values you aspire to in your service?  What values do you promote in your literature and on your website?  What are the expectations and work practices of staff re technology?  Is your agency a learning community which engages parents, children, staff and community?  What are the stakeholders expectations?  How has this changed in the last 10 years? Agency awareness

How will we manage the risks? Implement the essentials in a strategic and practical plan for your workplace…..

1) Take a leadership role   Conduct a risk assessment (Identify the risks; scope the risks; respond)   Review risk assessment   Educate agency stakeholders   Act now – be proactive   Consult with young people and experts

2. Staff mentoring good usage   Policies and procedures   Expectations   Language   Education

3. Multi-faceted approach is essential Engage with:   Stakeholders   Government agencies   Service providers   Local community

The challenge   It’s a community response   Your agency is part of the community   What leadership are we showing in assisting children to use digital technology safely?   What else can we do as a community?

Summary   We know technology is great, there are inherent and ongoing risks, its here to stay   Agency’s working with children have legal obligations   Newness of common law and legislation in digital technology matters   Needs a multi-faceted approach   Needs risk assessment and strategic planning to shift culture and knowledge

Questions Thank you for your participation