The Heath and Child Wellbeing Legislation Amendment Bill 2017 (Vic) (the Bill) proposes changes to both the Reportable Conduct Scheme and the Child Safe Standards’ operation to clarify existing provisions in the Child Wellbeing and Safety Act 2005 (Vic) that were found to be opaque in practice.

The Bill also includes amendments to the Public Health and Wellbeing Act 2008 (Vic) in relation to immunisation status requirements for early learning which will only apply to schools who provide early learning education.

The Bill passed its third reading in early February and is awaiting assent.

Definition Changes in the Child Wellbeing and Safety Act

The Child Wellbeing and Safety Act 2005 (Vic) (the Act) sets out the Reportable Conduct Scheme and creates the Child Safe Standards regime.

Under the Reportable Conduct Scheme, schools are required to respond to allegations of child abuse (and other child-related misconduct) made against their workers and volunteers, and notify the Commissioner for Children and Young People (CCYP) of any allegations. Similar schemes exist in NSW and the ACT.

The Child Safe Standards are compulsory minimum standards for organisations, including schools, that provide services for children to help protect children from abuse.

The Bill amends various definitions to ensure the widespread applicability and clarity of the application of the two regimes.

Changes to the definition of “employee” and “applicable entity” widen the applicability of the Reportable Conduct Scheme to include foster carers and kinship carers as “employees” and businesses that engage children as contractors, employees or volunteers as “applicable entities”. The definitions of “category 1 entity” and “category 2 entity” for the purposes of the applicability of the Child Safe Standards have been amended so that all category 1 and 2 entities are listed in Schedule 1 and 2, rather than having to be an “applicable entity” and listed in the Schedules. This fixes an error in the legislation that resulted in some entities listed in Schedule 1 and 2 not being “applicable entities” as defined in the Act and therefore, not having to comply with the Reportable Conduct Scheme.

Change to Definition of “Head of Entity”

The most critical change in definitions for schools is the substitution of a new definition of “head” of an entity for the purposes of the Reportable Conduct Scheme.

The substitution has been proposed to make it clear who the “head” of an entity is, because the previous definition did not provide a hierarchy to determine who the “head” of an entity was in circumstances where more than one person meets the definition. The previous definition also didn’t take into account that some entities, like schools, may not have a person with the title of “Chief Executive Officer” or “principal officer”, although may have someone performing an equivalent role.

The proposed new definition will read (condensed for school relevance):

“head, in relation to an entity to which the reportable conduct scheme applies, means:

c)       in any other case –

i.the chief executive officer of the entity (however described); or

ii.if there is no chief executive officer, the principal officer of the entity (however described); or

iii. if there is no chief executive officer, a person, or the holder of a position, in the entity nominated by the entity and approved by the Commission.”

Since the introduction of the Scheme, many schools have been confused about who the CEO or principal officer in their school was – especially those who are part of a religious system with a complex governance structure. The addition of subsection (c)(i) also allows schools a higher degree of flexibility to determine, subject to the Commission’s approval, the appropriate senior person located in Victoria who can perform the responsibilities and functions of the “head” of an entity under the Scheme where there is no person otherwise meeting the definition.

Delegation of the “Head” of Entity’s Requirements

Another key source of confusion around the operation of the Reportable Conduct Scheme for schools has been the debate about whether the “head” of an entity can delegate their obligations and requirements under the Act.

Under the Reportable Conduct Scheme, the “head” of an entity has significant obligations to:

• develop and implement systems for the prevention, detection, reporting and investigation of reportable conduct;
• notify the CCYP of any allegations; and
• conduct an investigation of an allegation and report back on findings to the CCYP.

The “head” of an entity is required to have knowledge and be aware of all allegations of reportable conduct at their school.

There is no specific provision currently in the Act to allow for the delegation of these duties by the “head”, which prompted queries from schools about how to deal with allegations when the “head” is unavailable, or the subject of the reportable conduct allegation.

A new section is proposed by the Bill to clarify the ability for a Secretary of a Department to delegate their powers, functions or duties, however there is no addition to explicitly allow delegation by heads of other applicable entities. That said, the explanatory memo for the introduction of the Bill states that “heads of entities may otherwise continue to make arrangements for the head’s powers, functions and duties under the reportable conduct scheme to be fulfilled, for example, by arranging for another appropriate person to perform a particular duty.”

This allows a Principal, who would be the “head” of entity of an individual non-government school in Victoria, to delegate their powers, functions and duties to the Deputy Principal when the Principal is unavailable to perform those functions and duties, or where the Principal is the subject of the allegation.

It is important to note that, while the delegation of powers, functions or duties is permittable, the “head” of an entity retains legal responsibility under the Scheme for the performance of the function, duty of power.

Message for Schools

The Bill proposes a number of small but significant amendments to the application of the Reportable Conduct Scheme and Child Safe Standards regime that schools need to be aware of. When the Bill is assented to (takes effect), schools will need to assess their reportable conduct policies and procedures to ensure that they have identified an appropriate “head” of entity, that their delegation procedures are clear and appropriate and that there are effective systems for meeting the notification requirements of the Scheme.