Personal Injury

The Childcare Sector on the Edge

Australia’s $22 billion childcare industry has been on a dangerous trajectory – subsumed by the profit motive – and overrun by an insidious culture of child abuse and neglect.

But the full scale of the crisis has only recently come to light.

In a major investigation broadcast last week, the ABC exposed the industry for what it truly is – a broken system held up by a crumbling façade.

Revealing the Dark Reality: The Four Corners Investigation

The alarming findings come after Four Corners was given access to the largest-ever database of childcare regulator files, containing more than 200,000 pages of previously confidential documents, police tip-offs, court records and evidence from parents, educators, whistleblowers, and experts.

They found that almost 150 childcare workers were convicted, charged, or accused of sexual abuse and inappropriate conduct. Half of the 42 people convicted were sentenced in the past five years alone, and another 14 are currently before the courts.

However, with barely 15 per cent of reports of child sex abuse leading to charges and only 2 per cent leading to a conviction, experts say the real number of predators who have worked in childcare over the years is likely in the thousands.

One trend in particular stood out from the rest of the data. Despite making up less than 3 per cent of Australia’s early childhood workforce, men account for the majority of alleged offenders.

In fact, the two most recent high-profile offenders were both men. Joshua Dale Brown is accused of assaulting eight children and producing child abuse material while he worked. Meanwhile, Sydney educator David James allegedly filmed 10 children across six of the 60 services he worked at before he was arrested.

Gender and Abuse: Uncomfortable but Critical Insights

As uncomfortable as it may be to recognise, these cases, as well as the available research, demonstrate that men with a sexual interest in children are disproportionately more likely to work with children, including in early education and care.

According to recent data, one in 20 men in Australia will admit a sexual interest in offending against children; however, they are almost three times more likely to work with children compared to other men.

Though there is a lack of systemic data on child sexual abuse in childcare settings, existing findings align with the only comprehensive study conducted on this issue, which followed the highly publicised McMartin Preschool trial in the United States.

This study examined cases from 1983 to 1985 and identified 270 daycare centres where 1,639 children were found to have experienced substantiated sexual abuse. Although men made up only about 5% of childcare staff, they were responsible for 60% of the offences. The abuse was often severe, with 93% of victims subjected to some form of penetrative sexual violence.

Legal Boundaries: Gender Discrimination vs Child Safety

The propensity of male childcare workers to offend against children elicits a fraught but legitimate legal question – whether sex itself could constitute a relevant consideration in hiring roles for childcare.

Under the Sex Discrimination Act 1984 (Cth) and the Anti-Discrimination Act 1977 (NSW), employers must not discriminate against job applicants or employees based on sex, gender, or gender identity. In this context, refusing to hire men solely because they are male would constitute sex discrimination.

There are, though, narrow circumstances where hiring a specific gender only is lawful as long as it is a position to which it is a “genuine occupational qualification” to be a person of a different sex from the sex of the other person.

The instances where it is a “genuine occupational qualification” to be a person of a particular sex are enumerated in s 30 of the Sex Discrimination Act 1984 (Cth) as well as s 31 of the Anti-Discrimination Act 1977 (NSW). For example, being a person of a different sex from the sex of the other person may a genuine occupational qualification if; the duties of the position need to be performed by a person of the relevant sex to preserve decency or privacy because they involve the fitting of clothing for persons of that sex; or if the duties of the position include the conduct of searches of the clothing or bodies of persons of the relevant sex.

Some employers have successfully sought temporary exemptions under state anti-discrimination commissions where there are special circumstances — for example, women’s refuges or domestic violence shelters hiring only female staff due to client safety and trauma considerations.

However, the Australian Human Rights Commission has repeatedly stressed that occupational-qualification exemptions must be interpreted narrowly. A childcare centre could not lawfully rely on statistical risk or public fear alone; it must demonstrate that employing men would cause unjustifiable hardship, or that a legitimate aim (child safety) cannot be achieved through less discriminatory means — for example, supervision protocols, two-staff rules, and improved vetting.

Childcare work generally involves professional care and supervision of children, not inherently private or intimate services of a sexual or bodily nature, so it’s unlikely to qualify as a GOQ. Even if the majority of abuse perpetrators are men, that fact alone would not justify a blanket sex-based hiring policy.

Case Law and International Comparisons

In Ferres v Wilson (1996), the NSW Equal Opportunity Tribunal considered whether the role of a female support worker in a women’s refuge could legitimately exclude men. The Tribunal accepted that, because the position required providing intimate assistance to survivors of male violence, being female was a genuine occupational qualification. However, the decision was expressly confined to circumstances where the nature of the work was inseparable from the clients’ gendered experiences.

Applied to childcare, this means that even if most abuse cases involve men, the law does not allow employers to generalise risk across an entire gender. Unless the role itself demands that the worker be female — for instance, in providing personal care to children of a particular sex for privacy reasons — blanket exclusion would likely breach both Commonwealth and State discrimination laws.

Courts in other jurisdictions have grappled with analogous tensions and come to similar conclusions.

In UAW v Johnson Controls (1991), the United States Supreme Court struck down a policy barring women of childbearing age from certain factory roles due to perceived risks to foetal health. The Court held that moral or protective motives could not justify systemic sex discrimination. The logic translates easily: well-intentioned paternalism can still breach equality law.

Likewise, in Sirdar v Army Board (1999), the UK’s House of Lords examined whether a female chef could be excluded from a Royal Marines unit on grounds of “combat effectiveness.” While the Court accepted that certain operational roles might justify gender restrictions, it emphasised that exceptions must be objectively necessary — not rooted in stereotype or public discomfort.

The European Court of Justice took the same stance in Kreil v Germany (2000), rejecting a national law that barred women from armed service roles, declaring it incompatible with equality guarantees under EU law.

Balancing Safety and Equality: Policy Challenges

Some legal commentators have floated the idea of amending anti-discrimination legislation to create a specific exemption for childcare, akin to those available for religious institutions or crisis shelters. Yet such a reform would mark a major retreat from decades of equality law, effectively codifying the presumption that men are inherently less safe to work with children.

While men undeniably perpetrate the majority of abuse in childcare settings, policies based on generalisations about a group – even empirically supported ones – remain discriminatory.

If anything, the legal analysis elucidates a deeper structural tension. The fact that childcare has become a breeding ground for abuse reflects a system that prioritises commercial expansion over adequate safeguarding. As a result, regulators are under-resourced, educators are underpaid, and governance frameworks are lacklustre.

In their investigation, the ABC found that most of the abuse occurs in for-profit centres, where cost-cutting, high staff turnover, and routinely breached or gamed child-to-staff ratios leave supervision dangerously thin.

They also found widespread gaps in safety, with hundreds of centres breaching child safety laws.

The Need for Systemic Change over Gender Bans

At the moment, there are more than 700 cases involving missing, expired or unverified Working With Children Checks, which are meant to be a fundamental safeguard to keep predators out of childcare. This means children are being cared for by people whose backgrounds were never properly vetted.

In addition, there are scores of centres where educators do not understand child protection or mandatory reporting obligations, and centres with chronic deficiencies in record keeping, which makes it hard to track educators as they move from centre to centre.

In this context, true reform necessitates adequate investment and calculated policy decisions, not gendered bans. Mandatory dual-staff supervision during intimate care, continuous professional development, transparent reporting of serious incidents, and national information-sharing between regulators and police all address risk without compromising discrimination law.

If you or someone you know has been impacted by child abuse, our law firm specialises in institutional abuse compensation claims. We provide fully trauma-informed support and confidential guidance to help survivors seek justice and healing. Please reach out to us with confidence—we are here to support you every step of the way.