New Rules for the Digital Age

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

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Aim of Discussion

• Identify the main issues for agencies working
  with children/young people
• Current legal and practical considerations
• Consider best practice response whose
  responsibilities

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Digital technology
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What we know.

• Todays 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 ..

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Risks with Misuse

• Bullying experiences extended and escacebated
• Predatory and grooming
• Exposure to inappropriate content
• Over use health complications
• Social skills

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Why risks are so high..

• Hard to see
• Not always visually evident
• Dont know what to look for
• Continual
• New development constantly
• 24/7 availability
• In homes, preschools, classrooms, playgrounds,
  buses, beaches, pockets

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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
• Its real
• Can be long term (public, reputation)

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• 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

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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)

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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

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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

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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?

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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

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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.

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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
  

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Emerging legal issues

• 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).

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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

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Agency awareness

• 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?

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

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2. Staff mentoring good usage

• Policies and procedures
• Expectations
• Language
• Education

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3. Multi-faceted approach is essential

• Engage with
• Stakeholders
• Government agencies
• Service providers
• Local community

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The challenge

• Its 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?

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Summary

• We know technology is great, there are inherent
  and ongoing risks, its here to stay
• Agencys 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

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• Questions
• Thank you for your participation
• www.integroe.com.au