This bulletin has been developed to assist schools to respond to legal issues when problematic and/or harmful sexualised behaviour (PHSB) becomes the subject of a criminal investigation, prosecution, or conviction. The information contained in this bulletin is to be applied in situations where allegations have been made, the Police are involved, and both parties are students (or potentially students) at the same school. It should be read in conjunction with the department’s Children with problematic or harmful sexual behaviours: Guidelines for schools (PHSB Guidelines).

Because the circumstances of these types of incidents can vary significantly, it is recommended Legal Services is contacted for specific advice on how to manage the situation in your school.

Please take care when reading this bulletin, as it contains information that may be distressing. Staff can access support by calling the department’s Employee Assistance Program. Free confidential support is also available to staff and the public from:

• Lifeline on 13 11 14
• Beyond Blue on 1300 22 46 36

Terminology used in this bulletin

We recognise that some of the language used in this field can be reductive or harmful when applied to PHSB in schools. As recommended by the PHSB Guidelines, we have tried to avoid using absolute labels such as “victim” “perpetrator” or “sex offender”, which can create stigma or negatively impact a student’s recovery.

According to the PHSB guidelines, staff should also not use the language of the criminal justice system (e.g. offender, sexual assault) unless the Police have charged a person with a criminal offence and even then, only when essential.

The full definition of PHSB is contained in the PHSB Guidelines.

What are sexual offences?

Sexual offences are generally contained in the Crimes Act 1900 (NSW) (the Crimes Act). They occur when a person performs an act of a sexual nature on another person who has not consented or cannot consent (for example, due to age, capacity etc).

The sexual offences mentioned in this bulletin are a sub-group of PHSB, where that behaviour has resulted in criminal charges or other contact with the criminal justice system.

Behaviour that may constitute a sexual offence includes:

• sexual acts such as fondling or kissing
• touching or threatening to touch someone’s body sexually
• recording or sending intimate images, making someone look at pornography, or sexting, or
• sexual intercourse, which includes a person’s genitalia or anus being penetrated by someone’s body part or an object.

In NSW, there is a legal defence to child sex offences where: the sexual contact was consensual, the age difference between the complainant and accused is not more than two years, and the complainant was 14 years or older at the time of the offence.

Children under the age of 10 cannot be charged with, prosecuted for, or found guilty of, an offence. If a child between 10 and 14 commits an offence, the prosecution must prove the child knew that the behaviour was wrong (known as “doli incapax”).

All sexual behaviours in children are to be managed in accordance with the PHSB Guidelines and the department’s child protection and mandatory reporting obligations.

General Principles

Schools have an ongoing responsibility to support all students by managing physical and psychological risks and supporting their welfare and wellbeing. This includes:

• undertaking risk assessments where necessary
• implementing support and collaborating with interagency partners as required
• continually monitoring any support put in place, and
• continually liaising with interagency partners to ensure support and follow up.

Students can access the school counselling service for general welfare and wellbeing support, but they should be informed that sexual assault counselling is a specialised discipline that is not necessarily covered by the school counselling service.

Students should also be advised they can get confidential, free legal advice from organisations such as:

• Youth Law Australia
• Legal Aid NSW Youth Hotline
• LawAccess NSW
• Aboriginal Legal Service NSW/ACT

Schools should use trauma-informed approaches when working with all students affected by PHSB. See Trauma-informed practice in schools: an explainer for guidance on recognised student behaviours related to trauma and strategies to support students impacted by trauma.

Staff welfare and wellbeing

By nature of their work, school staff are at risk of psychological injury or vicarious trauma when managing PHSB and sexual offences. All staff should practice self-care and work with their Principal or Director Educational Leadership on appropriate strategies to manage this risk. The department’s Employee Assistance Program can provide confidential personal counselling support and other wellbeing resources. Staff should also refer to the Being Well resources and raise issues with the Staff Wellbeing Team.

Who is involved in the response?

Police

Police Area Commands work with their communities to reduce crime and violence. They will investigate potential crimes, including allegations of criminal PHSB, and are available to support schools to reduce juvenile crime and victimisation. They can also educate students about safety and criminal behaviour.

NSW Office of the Director of Public Prosecutions or Police prosecutors

The NSW Office of the Director of Public Prosecutions (ODPP) is the independent authority in charge of prosecutions in NSW. They prosecute serious crimes in all NSW Courts, including the Children’s Court. If a child is charged with potentially criminal PHSB, the ODPP will be responsible for handling the prosecution.

Police prosecutors are police officers who prosecute the vast majority of Local Court criminal matters. These matters are often “summary” offences, which are less serious criminal offences such as drink driving and offensive language offences.

The Courts

The Children’s Court deals with most civil and criminal cases where the defendant is a child. Cases in the Children’s Court are always closed to the public, except for the child’s parents or carers, to protect the identity of the child.

If a child is charged with potentially criminal PHSB, the case will begin in the Children’s Court, and in many cases, it will finish there too. However, more serious cases can be referred to the District or Supreme Court, under the same rules that apply to adults.

School

The school’s role is to take all reasonable steps to ensure the health, safety, welfare and wellbeing of all students. Schools have a duty of care towards the psychosocial wellbeing of students while they are at school, even if an incident occurs outside of school. This includes understanding and responding to risks and providing appropriate support to impacted students.

It is not the school’s role to investigate or prove that a sexual offence has occurred. However, it is appropriate for schools to work with Police and speak to students to understand and respond to the psychosocial and wellbeing related risks on the school site.

The roles of individual school community members, such as Principals, Directors Educational Leadership (DELs), students, school counselling service, and support staff are outlined in pages 11-20 of the department’s PHSB Guidelines. Annexure 4 of the Guidelines also contains a checklist for principals in the first 24-48 hours after receiving a report of potential PHSB.

Other Agencies

Additional information about departments, agencies, and other service providers is available in pages 11-20 of the PHSB Guidelines. This includes the Department of Communities and Justice (DCJ), the Health, Safety and Staff Wellbeing directorate, Legal Services, and NSW Health.

What schools should do

Receiving disclosures

School staff play an important role in identifying and responding to inappropriate sexual behaviour. Students who disclose that they may have been sexually assaulted need to be treated with sensitivity and confidentiality. The response to a disclosure will have an impact on the student’s long-term wellbeing.

School staff can support students by:

1. listening, believing and assisting them to feel safe and secure. This may include:
   • staying calm and empathetic
   • letting the student use their own words
   • ensuring they feel understood, and
   • not prompting or leading students in their recollection.
2. asking if they would like to see the school counsellor or school psychologist. School counselling service staff can link students and their families to specialist support services, including sexual assault counselling and other health services. External referrals can also help to avoid potential conflicts of interest.
3. suggesting they contact a sexual assault counsellor or a legal service (e.g. NSW Health sexual assault services or Youth Law Australia). Students can speak to specially trained people who can help them understand what has happened and what their options are.
4. ensuring that any students involved will not be in direct, close or immediate contact with each other after the time of disclosure. This is important to ensure the students’ safety and reduce the risk of further offences.
5. giving students a voice to provide them with a sense of agency. Sexual offences involve a loss of personal autonomy and a breach of trust, so the student’s views should be considered, (e.g. by asking if they would like to speak to someone of a specific gender, and what support they need to feel safe at school).
6. minimising the number of staff (e.g. administration and additional teachers) involved in the initial stages of disclosure.
7. informing the student about the limitations of confidentiality (i.e. explaining that you are required to notify the Police and the department’s Child Wellbeing Unit to ensure that an appropriate plan is established to ensure their safety at school).
8. providing information about other available supports. Relevant links are at the end of this bulletin.

Reporting and other legal obligations

Incidents and disclosures should be reported to the Child Wellbeing Unit on (02) 9269 9400. School staff are reminded that PHSB will generally require reporting to DCJ and may need to be reported to Police and Professional Ethical Standards, depending on the circumstances. See paragraphs 160-177 of the PHSB Guidelines, and/or the Child Wellbeing Unit for details on your how to meet reporting obligations. Failure to report PHSB may constitute reportable conduct and could result in a referral to PES.

Working with Police

Once a report has been made to Police, they will need to conduct enquiries to determine whether a person should be charged with an offence. See LIB13 – Police or DCJ Interviews in Schools for information on how to manage a request by Police to interview people on school grounds. If you have any concerns, or the Legal Issues Bulletin does not answer your question, please contact Legal Services for specific advice.

Speaking with parents

Generally, schools must notify the parents/carers of students who have been affected by PHSB or sexual offending.

It may be that a student does not wish their parents/carers to be notified. A school’s paramount legal obligation is always to protect the student’s health, safety, welfare and wellbeing and it may not be appropriate to notify parents in certain circumstances, such as:

• where the disclosure would put the student at risk of further harm
• where the disclosure would adversely impact on the student’s health, safety, welfare, or wellbeing
• where the student is a mature minor and has asked the school not to tell their parents/carer (a mature minor is an adolescent under 18 years who has sufficient maturity, understanding and intelligence to understand the nature and consequences of a proposed decision), or
• if the Police have advised that disclosure to parents/carers would jeopardise a Police investigation.

For more information about speaking with parents, see pages 37-41 of the PHSB Guidelines. Information about how to talk to other members of the community, such as school staff or (in rare cases) the media, can also be found in the PHSB guidelines.

Supporting students charged with sexual offences

Where a student is being investigated or has been charged/convicted of sexual offences, they can often access legal assistance through the criminal justice process or a Community Legal Centre such as Youth Law Australia. Alternatively, they may have private legal representation.

School staff should assist the student to engage with other appropriate supports, which could include:

• Kids Helpline on 1800 551 800
• The school counselling service
• New Street Services – support for those aged 10 to 17 years who have engaged in PHSB, and their families and caregivers. See more information about New Street
• Safe Wayz – support for children under 10 who have engaged in PHSB, and their families and caregivers. See more information about Safe Wayz.

Summary: Critical actions for schools

There are three critical actions for schools to take when responding to student sexual offending. After responding to any immediate health and safety concerns, schools must:

1. Report to the Child Wellbeing Unit, which also discharges any mandatory reporting obligation
2. Contact parents or carers, unless there is a specific reason not to do so, and
3. Provide ongoing support, to both the student experiencing PHSB and the student who is alleged to have engaged in PHSB.

Managing Risk

Throughout the various stages of the criminal justice process (e.g. Police investigation, when charges are laid, or during a trial or sentencing) you should assess and manage the safety, wellbeing, and educational risks for the students involved. It is likely to be a stressful, emotional and confronting experience for students and the school community.

Gathering information

Schools need to gather information on student sexual offending to meet their duty of care. The focus of these inquiries is not fact finding, but:

• identifying risks, especially to students learning and psychosocial safety
• assessing the identified risks and relevant control measures, and
• implementing the necessary supports or reasonable adjustments (e.g. for students with disability).

The above information can be gathered even if Police are investigating a potential criminal offence. However, school staff are not child protection workers, nor are they trained investigators and they should not undertake a fact-finding inquiry.

Schools should focus their inquiries on identifying and managing risk, not establishing what happened and when. A student who has been accused of a sexual offence should only be interviewed by school staff if the Police have recommended doing so.

All agencies that provide services to children, young people and their families, or whose staff encounter children and young people in the course of their work, have a particular role to play in identifying safety, welfare and wellbeing concerns early and in working together to provide effective care and protection before problems escalate. Agencies are required by legislation to take reasonable steps to coordinate decision-making and the delivery of services regarding children and young people.

Sharing information

In certain circumstances, schools can share information within the government school sector and with external organisations such as DCJ, NSW Police, NSW Health, medical/health professionals, and non-government schools. These circumstances include:

• where it promotes student safety, welfare or wellbeing, or facilitates the provision of services to the student – this is done under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 (NSW) (see LIB50 - Information provided for the welfare of children), and
• where a student has a history of violence and exchanging information is relevant to assessing whether a student’s enrolment/attendance is a risk to others health and safety or to develop/maintain strategies to eliminate and minimise such risk.

More details about information exchange provisions can be found on pages 44-46 of the PHSB guidelines.

Undertaking a risk assessment

The Incident Notification and Response Unit in the Health, Safety and Staff Wellbeing Directorate can assist schools with risk assessments and the development of a risk management plan to support schools to manage associated risks on school grounds: see the Complex Case Team details at the directorate’s Contacts Us page.

Schools must consider a student’s past behaviour where relevant. A risk assessment must establish the foreseeable risk of physical or psychological injury while at school. This may require gathering relevant information from within the department and from other government agencies or external organisations (e.g. DCJ or NSW Police). In line with duty of care obligations, a Principal's decision to take action to mitigate an unacceptable risk can be made irrespective of any action by another agency, including NSW Police or the DCJ.

When conducting a risk assessment of this nature, it is critical to give the student who has been affected by the allegations/offence a voice. For example, you might:

• ask the student who in the school they want to act as the primary contact about their welfare
• seek to understand their views about the potential risks
• ask for their input on strategies to manage the risks and to feel safe and comfortable at school
• ask how often the student wishes to have a staff member check in on their wellbeing, and
• ensure the student is well supported during and after these conversations.

Factors to consider when developing or reviewing a Risk Management Plan

The following factors will be relevant when developing a Risk Management Plan after a PHSB incident. They should be carefully considered throughout the development process:

• positive engagement of the parents/carers of both students
• medical or health information available about both students
• observations and feedback from school staff in relation to the students’ engagement with their schooling
• changes in the student’s behaviour while at school
• previous and current enrolment and attendance patterns
• whether both students are in the same year cohort at school, and other times when they may be in contact (e.g. travel, excursions etc.)
• history of relevant child protection factors
• current or previous mental health diagnoses, including history of suicidal or self-harming behaviour, drug or alcohol use etc
• court orders such as bail conditions and AVOs
• access to and engagement with mental health supports/sexual assault counselling
• the response from the entire school community, peers especially, towards both students (whether this has been positive or negative) and how this may impact on their wellbeing and engagement with education
• whether other students (or community members) are making comments at school or online about the alleged incident and any police or court proceedings, and
• ensuring that any student witnesses, students who may live nearby, or students affected in other ways are also offered support.

Staff should refer to pages 48-51 of the PHSB Guidelines for further guidance.

Managing student contact

Short-term considerations

Following disclosure of an incident, the first step will always be to attempt to manage and support the students within the school, based on an initial risk assessment.

If this is not practicable, a suspension may be required to allow the risk management plan to be put in place. Follow the department’s suspension and expulsion procedures in these circumstances.

Risk assessments should be updated and strategies adjusted as further information becomes available.

Bail and AVO conditions

If a court has imposed bail conditions or if an AVO has been made, the school must take practical steps to ensure the conditions can be complied with by the student. If this is not possible, other arrangements for the student’s access to education must be made.

For students with AVOs against each other, management of the situation will depend on the terms of the particular order.

Schools must manage risk within the school, particularly if it’s likely that the students will have contact with each other during the school day. For example, schools may need to consider:

• if it is appropriate and practicable to change students’ timetable arrangements to remove or minimise contact
• the use of separate entry and exit points
• coordinating movement of students between classes to limit/avoid contact
• how the students travel to and from school, and
• whether it is viable for both students to remain at the school.

It is also prudent for Principals to speak separately to the students concerned to ensure they understand the terms of the order and what the school’s expectations are, as well as what the school is doing to support both students.

Parental consent to transfer

After the risk assessment process is undertaken, you may determine that it is not safe or appropriate for both students to attend the same school. The Principal may wish to meet with the parents and student who is charged with or convicted of the offence to raise the possibility of a voluntary transfer to another school (while recognising the presumption of innocence in criminal matters). Voluntary transfers would be managed per the General Enrolment Procedures. This should occur after you have reached a conclusion, in consultation with stakeholders, that the safety and psychosocial risks are not manageable, and prior to the issue of an expulsion or enrolment direction.

It may not always be possible to transfer a student from a school, even if requested by the student and their family.

Suspension/expulsion – section 35 of the Education Act 1990

In cases involving “unacceptable behaviour” that pose an unacceptable risk to others, or to teaching and learning, a student may be removed from the school for a period or completely (Suspension and Expulsion Procedures).

Enrolment directions – section 26H of the Education Act 1990

The Secretary may direct that a particular student be enrolled at a certain school/s. A direction may be given if the Secretary believes on reasonable grounds that having both students enrolled at the same school would constitute a risk (because of the student’s behaviour) to the health or safety of another person or the student themselves.

Record Keeping

The school’s response to an incident should be recorded and kept as confidential records in accordance with departmental protocols.

Records of allegations of child sexual abuse must be retained for 99 years, consistent with the department’s record management requirements. School based records including records of mandatory reports will be stored securely at the school consistent with the department’s record keeping requirements which are outlined here.

Further information

If you have any questions that are not answered in this LIB, you should consult the PHSB Guidelines at first instance. If your question is not answered by the guidelines, refer to the resources below or contact Legal Services for assistance.

Support Services

• Kids Helpline on 1800 551 800
• New Street Services
• Safe Wayz
• Lifeline on 13 11 14
• Beyond Blue on 1300 22 46 36
• National Domestic Family and Sexual Violence Counselling Service – call 1800 RESPECT or 1800 737 732
• NSW Health Sexual Assault Services –contact details for local sexual assault services
• Youth Law Australia

Resources

• PHSB Guidelines
• Parent Fact Sheet – where a student has displayed PHSB
• Parent Fact Sheet – where a student has been affected by PHSB
• NSW Health’s Information for victims of sexual assault
• Support services for victims of crime
• The Charter of Victim’s Rights

Related LIBs

• LIB13 – Police or DCJ interviews in schools
• LIB50 - Information provided for the welfare of children
• LIB40 - Information about students with a history of violence (under review)
• LIB35 – Technology misuse in schools (under review)