In the last few years many state and territory governments have been introducing legislation dealing with child protection matters, Russell Schokman writes.
Various enquiries into child abuse, including the current Royal Commission into Institutional Responses to Child Sexual Abuse are resulting in the implementation of legislation dealing with the regulation and conduct of employees working with children.
One by one states have been introducing working with children registration, child safe schools standards, employee codes of conduct, reportable conduct schemes, information sharing and new criminal offences such as grooming, failure to disclose a sexual offence and failure of a person in authority to protect a child from a sexual offence.
Reportable conduct schemes
Reportable conduct schemes essentially require employers to notify, investigate and report the findings of investigations and action taken by the employer in relation to allegations of specified employee conduct to either the Ombudsman or in the case of Victoria, a Commission for Children and Young People. Outlined further in this article are those behaviours which are defined as reportable. Findings of reportable conduct are notified to regulators such as teacher registration bodies and departments of justice in relation to Working With Children Registration/Checks.
On 6 December 2016, the Victorian Government introduced a reportable conduct scheme (commencing 1 July 2017) to oversee how organisations in Victoria respond to allegations of child abuse and misconduct toward children by their workers and volunteers.
The Victorian Commission for Children and Young People is the independent statutory body that will oversee the scheme and will have the powers to monitor investigation into allegations of child abuse, share information with key organisations to improve child safety and inquire into the safety systems or organisations engaged in child related work. Legislation introducing a reportable conduct scheme is, at the time of writing, before the Victorian parliament.
In August 2016, the ACT Government announced the passing of the Reportable Conduct and Information Sharing Legislation Amendments Act 2016. This legislation (commencing 1 July 2017) empowered the ACT Ombudsman with child protection oversight duties similar to those of the NSW Ombudsman also modelling the definition of ‘reportable conduct’ on the NSW definitions.
The new Victoria and ACT schemes follow a long standing ‘reportable conduct scheme’ in NSW. There are benefits for reviewing the processes and pitfalls of the reportable conduct scheme in NSW in light of the present situation in other states and territories.
The current NSW reportable conduct scheme which is overseen by the NSW Ombudsman, has been in operation since 1999 and was established for independent oversight of the handling of ‘child abuse’ allegations against employees of both NSW government and non government schools and designated NSW agencies.
Many elements of this scheme are found in the Victorian and ACT schemes.
What conduct is reportable?
In NSW, community concerns raised in 2003 about the use of the term ‘child abuse’ resulted in a change to the term ‘reportable conduct’, which is defined in Section 25A of the Ombudsman Act 1974 as:
a)any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material), or
b) any assault, ill-treatment or neglect of a child, or
c) any behaviour that causes psychological harm to a child, whether or not, in any case, with the consent of the child.
‘Reportable conduct’ does not however extend to:a)
conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or
b) the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace employment procedures, or
c) conduct of a class or kind exempted from being ‘reportable conduct’ by the Ombudsman under section 25CA.
The introduction of Part 3A of the Ombudsman Act 1974 resulted in the NSW Ombudsman’s role and powers extending to the following:
1. scrutinising designated NSW employers’ systems for preventing, handling and responding to ‘reportable conduct’ allegations and convictions ie policies, training, risk management strategies.
2. overseeing and monitoring investigations into ‘reportable conduct’ allegations by designated NSW employers.
3. assessing investigations by looking for clear and sufficient information to support actions taken by designated NSW employers.
4. handling complaints about the investigation process relating to allegations of ‘reportable conduct’.
5. conducting audits on designated NSW employers to assist in improving practices for providing safe environments for children.
The NSW experience
While the IEU NSW/ACT Branch has been supportive of the NSW ‘reportable conduct’ scheme, the Union retains some concerns relating to designated NSW employer’s management of ‘reportable conduct’ allegations against members. The specific concerns include, but are not limited to:
• thresholds not being consistently applied by designated NSW employers prior to reporting a category of behaviour as ‘reportable conduct’ to the NSW Ombudsman
• unreasonable delays experienced by members in being provided with details of the alleged behaviour that amounts to ‘reportable conduct’ by designated NSW employers
• lengthy delays in the finalisation of ‘reportable conduct’ investigations by designated NSW employers
• the lack of experienced/appropriately qualified persons conducting ‘reportable conduct’ investigations
• the limited access to members of information contained in investigation files held by designated NSW employers when an adverse investigation finding is made against the member
• lack of meaningful feedback or no feedback provided at all from designated NSW employers to issues raised by the IEU on behalf of members, and
• the lack of sufficient training and resources provided to members on the requirements of the Ombudsman Act 1974 (NSW).
The NSW Reportable Conduct Scheme also has significant impact on the current Working With Children Check (WWCC) which is conducted on all employees in child related employment in NSW.
Designated NSW employers are required to notify the NSW Office of the Children’s Guardian (OCG) the details of disciplinary records relating to a finding against an employee of child sexual misconduct (including grooming) or serious physical assault of a child.This results in the relevant employee undergoing a WWCC risk assessment, with the result being either a clearance or a bar from working with children in NSW for five years.
Teachers in NSW are also required to have a WWCC clearance as part of the NSW Education Standards Authority accreditation process.
Additionally, employers are able to make a request to the NSW Education Standards Authority for the suspension of a teacher’s accreditation should a disciplinary proceeding commence into an allegation that has been made against the teacher.