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

New Rules for the Digital AgeNew Rules for the Digital Age

NSW Ombudsman Symposium NSW Ombudsman Symposium

26 May 200926 May 2009

Identify the main issues for agencies Identify the main issues for agencies working with children/young peopleworking with children/young people

Current legal and practical Current legal and practical considerationsconsiderations

Consider best practice response – Consider best practice response – whose responsibilities whose responsibilities

Aim of Discussion Aim of Discussion

Digital technology = 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:Our Experience:

Reactive service delivery on managing inappropriate use Reactive service delivery on managing inappropriate use of digital technologyof digital technology

Our Approach:Our Approach:

Proactive risk management service deliveryProactive risk management service delivery

NSW Ombudsman Symposium 26 May 2009NSW Ombudsman Symposium 26 May 2009

Essentials for employers…

1. A leadership role

2. Staff mentoring good usage

3. Multi-faceted approach is essential(Theme of symposium- Working Together: advancing child (Theme of symposium- Working Together: advancing child

protection in the workplace)protection in the workplace)

Summary of Legal IssuesSummary of Legal Issues

Duty of Care for Children Duty of Care for Children

Deliver safe services to children (Deliver safe services to children (onerous)onerous)

Keep kids safe from harmful risks that are Keep kids safe from harmful risks that are not not insignificantinsignificant

Fulfil primary purpose of service Fulfil primary purpose of service

Ensure health and overall well-being of childrenEnsure health and overall well-being of children

Summary of Legal IssuesSummary of Legal Issues

Duty of Care for Staff Duty of Care for Staff

Keep staff safe from harmful risks that Keep staff safe from harmful risks that are are not not insignificantinsignificant

Adhere to OHS and other Adhere to OHS and other responsibilities responsibilities

Duty of care elementsDuty of care elements

Courts will ask :Courts will ask :

Was the risk of harm reasonably foreseeable?Was the risk of harm reasonably foreseeable?What was the probability that the incident would What was the probability that the incident would

occur?occur?How serious would the harm be if the incident How serious would the harm be if the incident

occurred?occurred?What precautions did you take to reduce the What precautions did you take to reduce the

risks?risks?

Summary of Legal IssuesSummary of Legal Issues

Lack of precedents on cyber safety issues and duty of Lack of precedents on cyber safety issues and duty of care care

We rely on application of principles applied in cases that We rely on application of principles applied in cases that do not apply to use of digital technology do not apply to use of digital technology

Other laws are still new eg: criminal and Other laws are still new eg: criminal and telecommunicationstelecommunications

Emerging legal issuesEmerging legal issues – the – the relationshiprelationship

Neighbour principle broadening (duty of care)Neighbour principle broadening (duty of care)

1996 first case involving the Trustees of Roman Catholic 1996 first case involving the Trustees of Roman Catholic Church of the DioceseChurch of the Dioceseof Bathurst “…Undoubtedly … a particular duty of care of Bathurst “…Undoubtedly … a particular duty of care arises because of a pre-existing relationship….” arises because of a pre-existing relationship….”

2005 High Court case - Trustees of Roman Catholic 2005 High Court case - Trustees of Roman Catholic Church for the Diocese of Canberra and Goulburn v Church for the Diocese of Canberra and Goulburn v Hadba [2005]. Hadba [2005].

Emerging legal issuesEmerging legal issues – the – the relationshiprelationship

Neighbour principle broadens duty of careNeighbour principle broadens duty of care

Technology has caused a change in culture Technology has caused a change in culture

Examples: Examples: - - Schools: learning neighbourhood between staff, parents Schools: learning neighbourhood between staff, parents and and local communitylocal community

- - Implications for child care centers and preschools Implications for child care centers and preschools

- - Implications for young people in work places Implications for young people in work places

What is viewed as “reasonably foreseeable” is What is viewed as “reasonably foreseeable” is extending extending

Beyond… if we did not see it then it is not Beyond… if we did not see it then it is not reasonably foreseeablereasonably foreseeable

Cox v State of New South WalesCox v State of New South Wales……not based on the teachers actual ability or not based on the teachers actual ability or capability but the particular relationship between capability but the particular relationship between the student and teacher (headmaster). the student and teacher (headmaster).

EmergingEmerging legal issueslegal issues

This case raised issues that are significant: This case raised issues that are significant:

1) 1) An authority must take substantial to address potentially An authority must take substantial to address potentially harmful conduct harmful conduct

2)2) Lack of knowledge or ability will not necessarily be a Lack of knowledge or ability will not necessarily be a defence defence

Consider this when working with children and: Consider this when working with children and:

Digital communication - an essential toolDigital communication - an essential tool Digital communication blurs traditional professional boundariesDigital communication blurs traditional professional boundaries

Emerging legal issuesEmerging legal issues

What are the values you aspire to in your service? What are the values you aspire to in your service?

What values do you promote in your literature and on your website? What values do you promote in your literature and on your website?

What are the expectations and work practices of staff re What are the expectations and work practices of staff re technology?technology?

Is your agency a learning community which engages parents, Is your agency a learning community which engages parents,

children, staff and community? children, staff and community?

What are the stakeholders expectations?What are the stakeholders expectations?

How has this changed in the last 10 years? How has this changed in the last 10 years?

Agency awareness 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

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