Royal Commission Recommendation for Nationally Consistent Reportable Conduct Schemes

In its final report, the Royal Commission into Institutional Responses to Child Sexual Abuse (Royal Commission) recommended that state and territory governments establish nationally consistent reportable conduct schemes, based on the approach adopted in NSW, that oblige heads of institutions to notify an oversight body of any reportable allegation, conduct or conviction involving any of the institution’s employees (Recommendation 7.9).

The Royal Commission expressed the view (Volume 7, section 4.7.6) that the oversight body for a reportable conduct scheme in each state and territory should also be responsible for monitoring and enforcing the Child Safe Standards, as is the case in Victoria. The Royal Commission noted that there may also be advantages in the same oversight body administering Working with Children Checks, although it acknowledged that this was not currently the case under New South Wales, Victorian or Australian Capital Territory legislation.

In the NSW Annual Report on Progress: Royal Commission into Institutional Responses to Child Sexual Abuse (December 2018), the NSW Government foreshadowed that throughout 2019 NSW would introduce several legislative amendments to enable the implementation of key recommendations from the Royal Commission. They would include changes to mandatory reporting and the reportable conduct scheme, regulating child safe standards and improving record-keeping and information sharing practices. NSW would also work with the Commonwealth and other states and territories to progress recommendations requiring intergovernmental action.

Children’s Guardian Bill 2019 (NSW)

The Children’s Guardian Bill 2019 (NSW) passed the NSW Legislative Assembly on 18 September 2019 without amendment and was introduced into the Legislative Council the same day.

The major provisions of the Bill are as follows:

• Responsibility for the reportable conduct scheme will be transferred from the NSW Ombudsman to the Children’s Guardian, including the power to monitor and investigate a reportable conduct allegation. (Oversight of the Official Community Visitors Scheme, in relation to visiting accommodation services for children who are in the full-time care of the service provider, will also be transferred from the NSW Ombudsman to the Children’s Guardian.)
• The powers and functions of the Children’s Guardian will be consolidated into this new piece of legislation, the Children’s Guardian Act 2019 (NSW). The new Act will incorporate provisions that are currently in the Adoption Act 2000 (NSW), the Children and Young Persons (Care and Protection) Act 1998 (NSW) and in Part 3A of the Ombudsman Act 1974 (NSW). It also makes consequential amendments to various other Acts and instruments.
• The reportable conduct scheme will be extended and strengthened to:
  • clarify the definition of reportable conduct
  • cover the conduct — both inside and outside the organisation — of entities’ contractors and subcontractors who hold or are required to hold a Working with Children Check
  • cover, from 30 January 2020 – any person in a religious body who holds or is required to hold a Working With Children Check for the purposes of their engagement with the religious body. These provisions will cover, as well as ministers, priests, rabbis and muftis, roles in the religious body that involve activities primarily related to children, including youth groups, youth camps, teaching children and child care
  • impose a statutory obligation on organisations to investigate allegations of reportable conduct and make findings with reasons
  • introduce a two-stage notification time-frame of seven days and 30 days
    
    Currently, entities must notify the Ombudsman “as soon as practicable” of a reportable allegation or conviction and in any event within 30 days. The new provisions will require the head of an entity to notify the Children’s Guardian within seven working days of becoming aware of the allegation or conviction, and to provide a report on the investigation or an interim report within 30 days.
    
    In his second reading speech in the Legislative Assembly, the Minister for Families, Communities and Disability Services explained that the intention was to mitigate the risk that an employee who presented a continuing risk to children would continue to have contact with children for up to a month. A penalty will apply to entities that fail to notify or provide an update within the legislative timeframe without a reasonable excuse.
    
    The Children's Guardian will have the power to intervene and conduct an own-motion investigation if it is in the public interest to do so.
  • build on existing protections for mandatory reporters who make a report in good faith by providing them with protection against all civil and criminal liability.

Apart from the provisions extending the reportable conduct scheme to religious bodies — which, as noted above, will come into operation on 30 January 2020 — the majority of the amendments relating to the reportable conduct scheme will come into operation on the date of assent to the Act.

What Should Schools be Doing?

Schools should be mindful of the changes due to impact of the reportable conduct scheme in NSW and ensure their policies and procedures are up to date.