The NSW Ombudsman has recently released three new documents that significantly increase the amount of guidance for government and non-government agencies (including schools) that are required to notify the Ombudsman of reportable conduct in their organisation. In NSW 'reportable conduct' is defined under section 25A(1) of the Ombudsman Act 1974 (NSW) (the Act) as:
- any sexual offence or sexual misconduct committed against, with or in the presence of a child - including a child pornography offence;
- any assault, ill-treatment or neglect of a child; or
- any behaviour that causes psychological harm to a child – even if the child consented to the behaviour, whether or not, in any case, with the consent of the child.
The NSW reportable conduct scheme was introduced 16 years ago and has become the model for the introduction of similar schemes in Victoria and the ACT. The Victorian definition of 'reportable conduct' is similar to the NSW definition while the ACT version is broader. This is the first guidance update from the Ombudsman since mid-2015.
The three new documents are:
While the information in the documents is specific to NSW schools, it may be used by authorities in other states and territories to develop guidance for new reportable conduct obligations in their jurisdiction.
The new guidance
'Child Protection – Notifying and identifying reportable conduct' (Document One) includes a wealth of information about the definition of reportable conduct and, more importantly, how to distinguish between conduct that is inappropriate and conduct that is reportable under the Act.
This is the first time that NSW non-government schools have received comprehensive guidance on what the phrase “sexual offence, sexual misconduct, assault, ill-treatment, neglect, and behaviour that causes psychological harm to a child” in section 25A means in practice.
Document One is filled with helpful examples and threshold measurements that will help schools, and their Principals, to better identify and notify the Ombudsman of reportable conduct.
Interestingly, in Document One’s definition of neglect, the Ombudsman has determined that a “failure to protect from abuse” is to be considered neglect for the purposes of the reportable conduct scheme. This includes where there is “an obviously or very clearly unreasonable failure to respond to information strongly indicating actual or potential serious abuse of a child.” This inclusion reflects criminal offences in states including Victoria and Tasmania that enforce a failure to protect offence and an offence to protection a child from harm, respectively.
'Defining assault for the purposes of the reportable conduct scheme' (Document Two) also goes into great detail regarding the essential elements for a finding of reportable conduct where an allegation of assault has occurred. Document Two sets out the legal principles that apply when considering whether a person’s conduct amounts to assault for the purposes of the reportable conduct. The Ombudsman has acknowledged that this can be a difficult area of the law to apply given the nuances of each individual circumstance or incident and has provided considerable, clear guidance for schools.
Finally, 'Making a finding of Reportable Conduct' (Document Three) is a brief statement of considerations that the head of agency who is responsible for launching investigations into alleged reportable conduct (the Principal in a school context) should keep in mind when deciding whether an allegation of reportable conduct is substantiated.
Why the new guidance?
It’s a good question, with an unclear answer. Without any official statement from the Ombudsman about the timing of the delivery of these new guidance documents, there are two possibilities that spring to mind. In February 2016, the Ombudsman prepared a Special Report for the NSW Parliament titled “Strengthening the oversight of workplace child abuse allegations”. While this report deals mainly with ‘strengthening’ the reportable conduct scheme by suggesting that the scope of agencies and individuals that fall within the Ombudsman jurisdiction for the purposes of the reportable conduct scheme should be extended, it also raised the issue that the existing scheme is not perfect and could be improved. There has since been no NSW Government response to the matters discussed in the report, however the Ombudsman's release of the new guidance documents could be the first step.
The second possibility is that, considering the strong similarities between the NSW Ombudsman’s three new guidance documents, and other states' legislative reform and introduction of guidance on issues including sexual misconduct, grooming and crossing professional boundaries, NSW is starting to join the national child protection reform trend.
Other indicators that NSW may be starting to 'catch up' with other states and territories who have been producing extensive amounts of legislative reform and regulatory guidance regarding child protection over the past two years, include a ‘new look’ ChildStory Reporter website that was launched towards the end of last year. The ChildStory Reporter website now houses NSW’s Mandatory Reporter Guide (MRG), which used to be on the Keep Them Safe website. Apart from just having a new look, the ChildStory Reporter website also has increased resources to aid mandatory reporters.
And in May 2016 the NSW Government launched an inquiry to focus on the procedure, practices and systems that operate in the area of child protection in NSW. Last week a number of Commonwealth, State and Territory Government representatives were before the Royal Commission into Institutional Responses to Child Sexual Abuse as part of a public hearing into current policies and procedures of the governments and their varied responses to relevant Royal Commission case studies and reports. In last week's hearing, NSW Department of Family and Community Services Secretary Michael Coutts-Trotter told the Royal Commission that the NSW Government has two pilot programs under way to educate people about the child abuse reporting system in a bid to ensure only reports that reach the required threshold are subject to mandatory reports.
In light of the state and territory governments appearing before the Royal Commission, it’s an excellent time for the NSW Government to start catching up to other states like Victoria and Western Australia in terms of child protection reform.The last significant legislative reform made to the child protection framework in NSW was made in 2013.
A new sub-trend of reportable conduct schemes
While it may have lagged over the past couple of years, NSW was ahead of the game when it introduced its reportable conduct scheme over 16 years ago under the Ombudsman’s jurisdiction. Now, a sub-trend in the child protection national trend is the implementation and improvement of reportable conduct schemes for both government and non-government agencies. Victoria and the ACT have announced that reportable conduct schemes will commence in their jurisdiction in July this year and that their schemes were heavily modelled on the success of NSW’s scheme.
Reportable conduct schemes are an effective child protection prevention strategy for schools as it provides a lower threshold for reporting misconduct and inappropriate behaviour than mandatory reporting obligations for example. School staff should be encouraged to be continuously aware of the behaviour of those around them and educated on how to identify and report the misconduct or inappropriate behaviour of others.
