The Reportable Conduct and Information Sharing Legislation Amendment Act 2016 - an overview

The ACT is currently rolling out extensive changes to child protection requirements in the Territory. The Reportable Conduct and Information Sharing Legislation Amendment Act 2016 (the Act) is the ACT Government’s $1.3 million response to endemic child abuse incidents that have emerged out of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission). The Act was passed on the second of August 2016. While some sections come into effect next week, the reportable conduct obligations applicable to schools that are discussed in this article, are expected to take effect mid next year.

The Act introduces sweeping changes to several acts (Ombudsman Act 1989, Children and Young People Act 2008, and Working with Vulnerable People (Background Checking) Act 2011) and the ACT Chief Minister, Andrew Barr, believes that these new provisions will complement the existing child protection laws in place in the ACT. The key amendments for a school's purposes are those made to the Ombudsman Act which now create an array of 'reportable conduct' obligations for the 'head' of a school.

A new reporting framework

Changes to existing legislation will ensure that there is a central authority for child protection reporting. Under the changes to the Ombudsman Act, the Ombudsman will be empowered with child protection oversight duties. Reports of possible child abuse as a result of employee misconduct will be directed to the Ombudsman who will assess and monitor the potential abuse and assess the investigation process that follows. This new regime is intended to safeguard against further child abuse offenders, who in the past, were able to slip through the cracks.

Under the new laws, all designated entities will be required to inform the Ombudsman about any reportable allegation or any reportable conviction involving an employee of the entity. The italics indicate defined terms under the Act, of which there are many to understand! Designated entities include government or non-government schools. Employees mean contracted workers or other persons engaged by the entity but not under contract e.g. volunteers. In the school context this includes teaching and non-teaching staff, board members, contractors, third party service providers and volunteers.

The definition of reportable allegation is "an express assertion that reportable conduct has happened." Reportable conduct is defined to mean conduct:

• committed by an employee; and
• which results in:
  • the ill treatment or neglect of a child;
  • behaviour which psychologically harms the child;
  • misconduct of a sexual nature that is not a criminal offence (eg grooming);
  • a criminal (sexual) offence; or
  • offences against the Education and Care Service National Law (ACT), including the use of inappropriate discipline.

Examples of conduct that is not reportable conduct include:

• reasonable discipline, management or care of a child; or
• trivial or negligible behaviour, such as touching a child to attract their attention or a school teacher raising their voice.

A reportable conviction is a conviction or finding of guilt for an offence under a State, Territory or Federal law involving reportable conduct.

Responsibility of schools

The laws state that the head of the designated entity must report to the Ombudsman. The Act defines a head to include a "chief executive officer, however described". Although unclear, this suggests that for schools, the person responsible for reporting reportable conduct would be the Principal or equivalent.

The Principal must make a written report to the Ombudsman about any reportable allegation (of reportable conduct) or conviction including:

• whether the school propose to take any action against the employee involved and their reasons for doing so (or not); and
• any written submissions from the employee to the Principal about the allegation or conviction,

within 30 days. When an investigation is carried out into reportable conduct, the Principal must provide a written report to the Ombudsman at the conclusion of the investigation.

The Act also provides that the Principal or an employee (as defined above) can also provide information to the Ombudsman that they believe on reasonable grounds reveals reportable conduct of another employee at the school, even where an allegation has not been formally made. The Ombudsman can then pass on to the ACT Police or the ACT Teacher Quality Institute.

Responsibility of the Ombudsman

Under the new legislation, the Ombudsman may "monitor" investigations by schools into reportable conduct or a conviction if it is in the public interest to do so. The Ombudsman may also conduct its own investigation into reportable conduct/conviction and how the school responded to it.

These powers allow the Ombudsman to attend any interview conducted by the school and confer with any person carrying out the investigation to gain a deeper understanding of the issues at play. The Ombudsman may also request information from the head of the entity. The Ombudsman can also contact the child involved in the inquiry or the parent of the child regarding the investigation.

False allegations

The Act includes an offence of making false allegations. This will protect employees from being investigated on the basis of a false or misleading allegation by another person. Making a false allegation against another person will result in a fine, 12 months' jail or both.

Information sharing

Another key feature of the amendments is this provision of information sharing between authorities. The Human Rights Commission, Chief Police Officer, Commissioner for Fair Trading, and the Chief Executive Officer of the ACT Teacher Quality Institute can all share information on relevant investigations that is critical to the protection of children

What will happen next?

Once the laws take effect sometime next year, schools will be required to fulfil their reportable conduct obligations under the Act. Failure to do so may result in the Ombudsman conducting its own investigations into reportable conduct - which would be intrusive for schools and result in reputational damage. Luckily, schools have time given next year's expected commencement date.

Before then, schools should be taking steps to understand their new obligations and develop policies and procedures to ensure compliance with the new laws. According to a Discussion Paper on the proposed reporting framework released earlier this year by the ACT Government, it is envisioned that schools will be guided on how to implement new reporting frameworks through fact sheets and training. Such guidance will be useful given the ambiguity of some terms in the Act such as the meaning of "head" and "employee".

The ACT’s decision to radically restructure its child protection procedures has been met with overwhelming support across the country. Victoria is currently considering introducing similar laws in response, while Council of Australian Government (COAG) has discussed these amendments and has agreed in-principle that all States and Territories would benefit from a nationally harmonised scheme.