“Complexity and risk require an urgent and strong response by performing arts practitioners who work with children, voluntarily or in paid environments.”
The day-to-day operations of the performing arts industry are increasingly coming under the scrutiny of regulatory authorities throughout Australia. In an interview today, Aaron Kernaghan (Principal Lawyer of Kernaghan & Associates) spoke candidly about the challenges that organisations at both the top end of town and in the community-sector are now facing.
“Businesses are being confronted by a mass of regulatory change that have led to serious ramifications for the way in which performing arts organisations operate in Australia. The changes have been bought about by a significant increase in the awareness of child protection laws and the community desire to see the most stern laws and consequences be deployed to guard and protect children.”
Some of the changes will see organisations that employ children or that work in a child-related area have to submit to comprehensive reporting regimes and clearances.
“The days of filling out a form to get a working with children check are gone. Today and increasingly as the new year approaches, organisations will be responsible for knowing the law and ensuring they comply,” said Mr Kernaghan.
The laws include regulatory schemes that involve organisations doing far more than just making sure adults who work with them are properly checked:
“The provisions require that employers, from major professional producers all the way to community theatres, dance academies and performing arts schools shoulder responsibility not just for what has happened but what might happen and to demonstrate, through proactive and meaningful steps their commitment to child protection issues and strict compliance with the law.”
“With change comes uncertainty, even the most sophisticated and established organisations are struggling with the reforms.”
The new regimes have been introduced across different state and territory jurisdictions to bring the arrangements into closer uniformity across the nation. But differences between jurisdictions still arise and ignorance of the law will not be an excuse:
“With the important work of the Royal Commission into Institutional Responses to Child Sexual Abuse, organisations are confronted with the need to go beyond what they’re being told in facts sheets and guides put out by the Children’s Guardian and other child protection bodies. I know of one case where an organisation was told by a government department what the law was, acted upon it, but when that advice turned out to be incorrect, the organisation, not the department, was held responsible. The result can lead to not only individuals losing their ability to work with children but entire organisations and businesses.”
The increased scrutiny and accountability on the area inspired a sense of urgency in the sector – one aimed at achieving clarity and guidance about what the new obligations are.
“Many organisations, especially in the community or semi-professional end of the industry are struggling to come to terms with the huge responsibilities they have to comply with the laws and regulations. Many have been left stunned by the extent to which they haven’t met those requirements in the past and are entertaining doubt as to their ability to do so in the future. Some of our clients have had to restructure their operations to either exclude children from their work all-together or at the very least, greatly reduce it.”
“The difficulties that performing arts groups – large and small – face cannot be understated. Not only are children in need of comprehensive protection, so too are those groups that seek to provide a stage for their talent and an opportunity for their craft. Their future is at stake.”
Speaking to a gathering of compliance specialists and in-house counsel, Mr Kernaghan remarked that performing arts groups are going to have to ensure that they can account not only for their actions but for the history of conduct across their businesses,
“It will no longer be appropriate nor possible for an organisation to distance itself from responsibility for historical incidents. Organisations will have to introduce new procedures to ensure that the full history of their operations, which in many cases stretch back decades, are fully documented and accounted for. Businesses, community groups and individuals are finding themselves now regularly being called upon to account for their actions or perceived inaction over complaints that are sometimes fifty years old,” said Mr Kernaghan.
The possibility that people running businesses and performing arts projects with the best of intentions will find themselves faced with the most serious of questions or accusations cannot be understated:
“The simple fact that someone running a project today has nothing to do with those that ran the business or organisation ten or twenty years ago will not be a sufficient excuse for failing to address the problems of the past or the institutional response both then and now. Those responses are under active scrutiny by not merely the Royal Commission, but Children’s Guardians and Commissioners. Inaction, ignorance or a head-in-the-sand approach exposes all concerned to the risk of future strife. What we are trying to do is to assist people in those situations realise the extent of their responsibilities and find practical solutions that fully address the law.”
“Little wonder that performing arts leaders are seeking urgent and ongoing assistance to shape their operations to ensure they and their children are protected.”
The issue has resulted in massive increases to the amount of performing arts related organisations and practitioners seeking ongoing legal assistance:
“The burden on companies is so great that these are not matters readily addressed by the resources available to most businesses. Even large-scale organisations are seeking outside counsel on how to proceed and how to deal with critical incidents when they arise. That means businesses and community sector groups are having to pay for ongoing assistance that is available at any time should something happen or a risk of something happening being identified.”
The issue has moved beyond the conventional understanding of what child abuse and child protection matters focus upon:
“The legal system is now recognising, both through inquiries and regulatory reforms, that child protection extends beyond keeping strangers from endangering children. It extends to the way in which children are treated, the conditions in which they are working, their mental and physical health and their dignity.”
The move, consistent with international frameworks for child protection and the rights of children, has resulted in organisations and individuals increasingly being held responsible whenever an allegation has been made, whatever the outcome.
“We have dealt with cases involving people accused of crimes against children who were acquitted of those crimes in the 1970’s being refused a working with children check, notwithstanding a proud and substantial history of blemish-free conduct and work with children in the meantime. An acquittal will not help when the system operates on the notion that “where there’s smoke there’s fire” and individuals and organisations caught up in that system are being held to the highest standards imaginable.”
But it was the extent to which organisations aren’t aware of their liability that is of greatest concern:
“Organisations, businesses, producers and companies are, on the whole, trying very hard to ensure the children they work with are protected and that their working lives are enhanced. But when the terms children, work and responsibility are as widely defined as they are, any prior allegations of wrongdoing, whether it involves sexual abuse or simply bad language, may cause untold complications that an average person may have difficulty perceiving. Companies have had adults refused permission to travel on tours overseas because of internal disciplinary proceedings that have resulted in complications for their working with children check status. The simple truth is that criminal charges are no longer the only way you may find yourself having to answer to the law.”
One of the most significant aspects of the issue has been the trend among adults and children to utilise social media to air grievances:
“Making complaints, casting aspersions or speaking to concerns on social media can be sufficient to require organisations to act quickly, properly and meaningfully to ensure that all relevant steps are taken to deal with the matter. Blowing off social media comments as ramblings or informal is no longer an appropriate course to adopt. As attractive and accurate as it can be to consider some comments as disingenuous or vexatious, every organisation must act quickly to take any suggestion of wrong doing seriously. That can involve internal investigations, activation of grievance management procedures and protocols or reports to external agencies, including Police and non-law-enforcement bodies. It’s little wonder that we’ve seen more than a 600% increase in our corporate clients seeking legal assistance to manage their child protection affairs and to shape their efforts going forward.”
Mr Kernaghan concluded by encouraging everyone to remember that it’s never too soon to start setting things in order but warned against the possibility that efforts might be left too late:
“No-one wants to be having to give evidence to an inquiry many years from now, seeking to critically examine what they did or didn’t do and whether or not that might have been wrong. Even though such analysis involves some of the benefit of hindsight, that will be little solace for those who did not seek to help themselves to get it right in the meantime. Inaction can be seen as complicity and that is an awful situation to have to respond to. The simple approach is the best one – preference child protection in your operations and affairs and take positive steps that are meaningful and consistent with the legal framework to ensure you can talk the talk and walk the walk. In the end, children will benefit enormously and so too will the performing arts sector.”
Aaron Kernaghan is the Principal Lawyer at Kernaghan & Associates Lawyers and provides compliance advice and assistance to the performing arts industry practitioners throughout Australia. He has represented survivors and organisations at the Royal Commission into Institutional Responses to Child Sex Abuse and has an expansive experience on the area of child-related crime and protection issues. He is retained as external counsel by some of Australia’s leading performing arts groups. He is a co-founding member of the Royal Commissions and Inquiries Law Group.
For more information, contact Kernaghan & Associates on