Less than a week ago, substantial amendments to the child protection systems in Victoria and the ACT commenced. From Saturday 1 July, a range of entities – including government and non-government schools – must ensure that they have additional policies and procedures in place for reporting, responding to and investigating various allegations of misconduct in relation to children and young people. Such obligations are in addition to other mandatory reporting and duty of care obligations. Australia now has three reportable conduct schemes, with the Victorian and ACT schemes joining the established NSW version.
What is reportable conduct?
Reportable conduct denotes a particular type of oversight system to provide additional obligations in relation to child protection. The concept was first introduced in NSW in 1998, in response to conflict of interest concerns arising out of agencies investigating child abuse allegations made against their own staff.
The Royal Commission into the NSW Police Service (Wood Royal Commission) recommended that the NSW Ombudsman have oversight over investigating such allegations, leading to a reform of the Ombudsman Act 1974 (NSW). Under the reportable conduct scheme, heads of designated agencies were compelled to notify the Ombudsman of any reportable allegations/convictions and report the results of an investigation and any action proposed to be action.
Reportable conduct schemes establish a lower reporting threshold than mandatory reporting obligations, which generally apply to instances of child sexual abuse or scenarios in which a child is at significant risk of harm or neglect. They are also more stringent than voluntary reporting, introducing clear obligations for a broad category of employees, including school staff, volunteers, third party contractors and external education providers.
In the Royal Commission’s research report Oversight and regulatory mechanisms aimed at protecting children from sexual abuse: Understanding current evidence of efficacy, released in April 2017, the strengths of the NSW reportable conduct scheme were detailed, suggesting it had "promising implementation capacity" and caused an increase in reporting of misconduct in designated agencies.
Employees of schools and other entities are encouraged to be continuously aware of the behaviour of their co-workers and other related persons, and to educate themselves on how to identify and report misconduct and inappropriate behavior.
The new reportable conduct schemes
As previously reported on School Governance here and here, Victoria and the ACT recently introduced legislative amendments using the NSW reportable conduct scheme as a benchmark. These amendments have now commenced, granting significant oversight responsibilities to the Commission for Children and Young People and ACT Ombudsman, while also placing significant responsibilities on the ‘heads’ of certain organisations (including school boards and principals) to investigate and report on reportable conduct.
For a comprehensive background to the schemes and their legal implications – including exactly what ‘reportable conduct’ means in these jurisdictions – refer to the following CompliSpace briefing papers:
NSW has also taken steps towards ‘freshening up’ its own reportable conduct scheme (which is nearly 20 years old). Seven new guidance documents have been released in the last six months, covering topics such as managing conflicts of interest, providing advice to children and parents, and risk management following an allegation against an employee. These documents can be found here.
Which jurisdiction is next?
Schools around the country should be aware of the NSW, Victorian and ACT reportable conduct schemes, as it appears that other jurisdictions will soon follow their lead.
Submissions recently closed on an issues paper titled A Reportable Conduct Scheme released by the Queensland Government, with the intention of providing an oversight mechanism to ensure that organisations providing services to children would appropriately investigate and manage any allegations of child abuse and inappropriate behavior. It is likely that a ‘reportable conduct’ Bill will eventually be introduced into the Queensland Parliament based on these submissions.
There is also some indication that a reportable conduct scheme is being developed in Western Australia, currently listed as a reform project by the Department of Child Protection and Family Support. The Commissioner for Children and Young People has indicated in correspondence with the Royal Commission that the Department will soon explore a trial reportable conduct system for people working with children in out-of-home care, and that it should later be developed to extend to all organisations providing services to children and young people.
Should reportable conduct be harmonised?
With the additional activity by the NSW Ombudsman and the wealth of corresponding guidance produced in Victoria and the ACT, School Governance’s previous prediction - that this is all part of a national child protection reform trend - appears to be taking shape.
The potential introduction of schemes in Queensland and Western Australia highlights the importance of achieving a nationally-consistent approach to reportable conduct. Implementing and harmonising reportable conduct schemes at the national level will not only improve coordination between jurisdictions on child protection but will allow organisations to operate across jurisdictional boundaries with equivalent reporting obligations.
At the 42nd COAG Meeting in April last year, ACT Chief Minister Andrew Barr MP proposed a nationally harmonised reportable conduct scheme to improve oversight of responses to allegations child abuse and neglect. While this was welcomed and agreed upon in principle, the discussion of child protection at the 43rd Meeting in December did not include reportable conduct. Indeed, at the most recent meeting in June, child protection did not merit a mention, despite the Royal Commission’s recommendations that COAG provide the forum for agreeing upon standard definitions and national child protection practices.
The Royal Commission has previously expressed concern that inconsistencies in oversight mechanisms in effect leads to children receiving different protection, care and support depending on their location and circumstances. Such inconsistencies may also create confusion amongst organisations attempting to stay compliant (which may be expected given the regularity of legislative amendments and guidance updates), ultimately creating difficulties in successfully identifying risks to children and young people.