To observe the significant impact that the Royal Commission has had on schools and the forthcoming five-year anniversary of its closure, we are writing a series of articles over the course of 2022, exploring the Royal Commission’s recommendations and their implementation throughout the country.  

This is the second article in the series, and it will explore the impact of the Royal Commission’s recommendations in relation to the development of Reportable Conduct Schemes.

Reportable Conduct Scheme

A Reportable Conduct Scheme is an oversight system that provides additional obligations for certain child-related organisations in relation to child protection, and that is designed to improve organisations’ responses to allegations of child abuse and neglect against their employees, volunteers and contractors. In the Royal Commission’s final report, a number of recommendations, including recommendations 7.9, 7.10, 7.11 and 7.12, directed states and territories to establish a Reportable Conduct Scheme based on a model established in New South Wales.

 In a previous School Governance article, we explored the history and development of Reportable Conduct Schemes in the child protection realm, with an emphasis on the NSW Reportable Conduct Scheme that the Royal Commission considered the benchmark for other states and territories to meet.

 Generally, Reportable Conduct Schemes require child-related organisations such as schools to notify a government oversight agency of all allegations of child abuse or other harm to children by employees, volunteers and contractors. Reportable Conduct Schemes generally have a lower reporting threshold than mandatory reporting obligations and apply to all kinds of conduct by employees that could cause harm to a child. In relation to schools, the relevant child does not have to be a student at the school and the conduct does not have to have occurred at the school or during the person’s engagement by the school. Reportable Conduct Schemes introduce clear obligations for schools to investigate these allegations and to report investigation results to the oversight body. They give the oversight body broad powers to oversee these investigations and, in some circumstances, to conduct their own investigation.

State and Territory Approach to Reportable Conduct Schemes: Addressing the Recommendations

The states and territories have taken different approaches to Reportable Conduct Schemes and have developed distinct responses to the Royal Commission’s recommendations, including those relating to Reportable Conduct Schemes. Below is an overview of each state’s and territory’s approach to Reportable Conduct Schemes and the relevant Royal Commission recommendations.

Jurisdictions that Have Implemented a Reportable Conduct Scheme

A number of states and territories either already had, or have accepted and implemented the Royal Commission recommendations by establishing, a state-based Reportable Conduct Scheme. The objective of these schemes is to prevent harm to children by holding organisations accountable for the conduct of their staff, volunteers and contractors (together generally referred to as employees or workers). This is done by:

• requiring organisations that have care, supervision or authority over children (including schools) to:
  • investigate allegations and convictions of conduct that amount to child abuse or other harm by employees
  • take appropriate action in response to any findings of reportable conduct against an employee
• enabling oversight and monitoring of these investigations/responses by an independent government body.

New South Wales

The Reportable Conduct Scheme in NSW was introduced 16 years ago. NSW’s Reportable Conduct Scheme is governed by the Children’s Guardian Act 2019 (NSW) and overseen by the Office of the NSW Children’s Guardian.

Organisations that fall under the Reportable Conduct Scheme in NSW are called “relevant entities”, and the head of these entities (known as the “Head of the Relevant Entity”) must ensure that the entity has systems in place to prevent, detect and deal with reportable conduct and reportable convictions. Schools are relevant entities, and the head of the school (who may be the Principal for individual schools or, for group or system schools, the Chief Executive Officer or Principal Officer of the system or group) is responsible for ensuring that systems are in place to keep children safe and ensure that employees are treated fairly when an allegation is investigated.

 We have written in detail about the Reportable Conduct Scheme in NSW in a previous School Governance Article.

Victoria

The Victorian Government introduced the Victorian Reportable Conduct Scheme in 2017. Victoria’s Reportable Conduct Scheme is governed by the Child Wellbeing and Safety Act 2005 (Vic) and overseen by the Commission for Children and Young People.

 Under the Scheme, institutions including schools are required to respond to allegations of child abuse (and other child-related misconduct) made against their workers and to notify the Commission for Children and Young People of such allegations. The Commission also has the power to initiate investigations and access entities for compliance purposes as well as facilitate information sharing between organisations, their regulators, the Victorian Police, the Department of Justice and the WWCC unit.

 For a comprehensive discussion of the Victorian Reportable Conduct Scheme and the legal implications - including exactly what “reportable conduct” means in Victoria - refer to this previous School Governance Article and CompliSpace Briefing Paper.

Australian Capital Territory

Similarly to Victoria, the ACT Government introduced a Reportable Conduct Scheme in 2017 under the Ombudsman Act 1989 (ACT) and this Scheme is overseen by the ACT Ombudsman.

 The ACT Reportable Conduct Scheme creates additional child protection reporting and information sharing obligations for organisations such as schools which exercise care, supervision or authority over children and young people. Under the Scheme, schools must report allegations of misconduct by an employee to the ACT Ombudsman. They must also share information with the Commissioner for Fair Trading and other entities that exercise supervision and care of children and young people.

 Like NSW and Victoria, the Reportable Conduct Scheme in the ACT does not alter existing reporting requirements, and complements the mandatory reporting obligations in the ACT.

 For additional information and details relating to the ACT Reportable Conduct Scheme see our previous School Governance Article and CompliSpace Briefing Paper.

 Jurisdictions that Have Not Yet Implemented a Reportable Conduct Scheme

Western Australia

The WA Government considered and accepted the Royal Commission’s recommendation to set up a Reportable Conduct Scheme. In 2021, a public consultation process occurred regarding the establishment of a WA Reportable Conduct Scheme and the Parliamentary Commissioner Amendment (Reportable Conduct) Bill 2021 (WA) was then introduced into the Legislative Assembly. This Bill has not yet passed.

 The Reportable Conduct Scheme proposed by this Bill would compel heads of organisations (including schools) to notify the Ombudsman of any allegations or convictions of child abuse by their employees and then investigate these allegations. The investigations would also be overseen and reviewed by the Ombudsman.

 The WA Reportable Conduct Scheme would also provide for mechanisms such as consultation and sharing of information between the Ombudsman and other investigatory or oversight bodies such as the WA Police to reduce unnecessary duplication of investigations.

 We have written in detail about the proposed WA Reportable Conduct Scheme in a recent School Governance Article.

Tasmania

The Tasmanian Government has accepted the recommendations of the Royal Commission to establish a Reportable Conduct Scheme based on the approach adopted in NSW. The development of a Reportable Conduct Scheme has been a work in progress in Tasmania and reached a point of early-stage community consultation.

 The Tasmanian Child Abuse Royal Commission Response Unit continues to champion the Tasmanian Government’s priority initiatives, one of which is the development of the Reportable Conduct Scheme. In its Third Annual Progress Report since the Royal Commission, the Tasmanian Government reported that a draft Child Safe Organisations Bill 2020 has been released. This Bill is the first stage of the Child Safe Organisations legislative framework for Tasmania and will include a Reportable Conduct Scheme. The consultation process in relation to this Bill is underway with many organisations making submissions in relation to the proposed Reportable Conduct Scheme.

 More information regarding Tasmania’s response to developing a Reportable Conduct Scheme can be found in the Third Annual Progress Report.

Queensland

Queensland is yet to officially accept the Royal Commission’s recommendation to develop a Reportable Conduct Scheme, however, it has acknowledged and continues to explore the idea of a scheme or similar oversight mechanism to improve child safety in Queensland.

 The Queensland Government continues to discuss options for oversight and regulation of mandatory Child Safe Standards, and a Reportable Conduct Scheme is being considered as a possible option. The consultation process regarding oversight of the mandatory Child Safe Standards and the potential development of a Reportable Conduct Scheme has been extensively discussed in the Queensland Department of Children, Youth Justice and Multicultural Affairs “Growing Child Safe Organisations in Queensland” consultation paper (no longer available on the Department’s website).

Further information relating to the potential development of a Queensland Reportable Conduct Scheme can be found in the Queensland Government Second Annual Progress Report.

South Australia

Similarly to Queensland, the South Australian Government continues to assess the scope and benefit of establishing a Reportable Conduct Scheme.

 Generally, the South Australian Government has taken the position that the development of a Reportable Conduct Scheme is a low priority and potentially not necessary. It noted in its Final Progress Report that there are already various mechanisms in existence allowing the South Australian Government or other relevant bodies to oversee aspects of child protection matters including:

• the Guardian for Children and Young People
• the Commissioner for Children and Young People
• Child Death and Serious Injury Review Committee
• Child Development Council.

 More information regarding the South Australian response to the establishment of Reportable Conduct Schemes can be found in the Government’s Final Progress Report.

Northern Territory

The NT Government has not yet accepted the Royal Commission’s recommendations 7.9-7.12 (inclusive) regarding the establishment of a Reportable Conduct Scheme. In its initial response to the Royal Commission, the NT Government indicated that further reforms to child protection processes and systems are being considered with the development of a single piece of legislation to replace the Youth Justice Act 2005 (NT) and the Care and Protection of Children Act 2007 (NT).

A National Approach to Reportable Conduct Schemes

The Royal Commission recommendations demonstrate a preference for a nationally harmonised approach to child protection. While we see a majority of states and territories accepting the Royal Commission’s recommendations regarding the development and implementation of a Reportable Conduct Scheme, it is unlikely that the remainder of Australian jurisdictions will be on the same page regarding Reportable Conduct Schemes in the near future.

Authors

Maddison Horne

Maddison Horne works as a Legal Content Associate at CompliSpace. She recently graduated from University of Technology Sydney with a Bachelor of Law and Communications (Political and Social Science).

Deborah De Fina

Deborah recently completed five years working with the Royal Commission into Institutional Responses to Child Sexual Abuse where she assisted the Royal Commission to establish the Private Session process and subsequently managed its legal aspects. Prior to working with the Royal Commission, Deborah had her own successful consulting practice where she specialised in the statutory child protection system, legal issues facing children and vulnerable people, and legal aid. She also spent more than nine years at Legal Aid NSW, as a child protection solicitor, Senior Solicitor and then Solicitor in Charge, Child Protection. Deborah holds a Juris Doctorate from the Columbia University School of Law, a Master of International Affairs from the Columbia University School of International and Public Affairs and a Diploma in Law from Sydney University.