Child Protection – Important Changes to the NSW Reportable Conduct Scheme
11 February 2020
A new Reportable Conduct Scheme (the Scheme) for child protection will apply in NSW from 1 March 2020 following the transfer of the Scheme from the NSW Ombudsman to the Office of the Children’s Guardian (OCG) under the new Children’s Guardian Act 2019 (NSW) (the Act).
The Scheme oversights how organisations investigate and report on allegations of certain conduct (known as ‘reportable allegations’ and ‘reportable convictions’) made against their employees, volunteers or certain contractors who provide services to children.
The changes are intended to better protect children by strengthening the Scheme, increasing accountability for child safety and reducing reporting duplication for organisations.
Religious bodies now covered
From 1 March 2020, the Scheme will cover all religious bodies in line with recommendations of the Royal Commission into Institutional Responses to Child Sexual Abuse (the Royal Commission).
As the Working with Children Check (WWCC) framework applies to religious services and requires the following persons within religious bodies to hold a WWCC, religious bodies will be under an obligation to report on conduct in relation to:
- a minister, priest, rabbi, mufti or other religious leader or spiritual officer of the organisation; or
- a person in any other role in the organisation involving activities primarily related to children, including youth groups, youth camps, teaching children and child care if they hold or are required to hold a WWCC.
Clarifying the definition of reportable conduct
Currently the definition of ‘crossing professional boundaries’ is included in the NSW Ombudsman’s fact sheets as falling within ‘sexual misconduct’, a category of reportable conduct.
The definition of reportable conduct is now codified in the Act with ‘sexual misconduct’ defined as conduct with, towards or in the presence of a child that is sexual in nature. This means from 1 March 2020 ‘crossing of professional boundaries’ will not amount to sexual misconduct in and of itself unless there is a sexual element.
The offence of grooming in the Crimes Act 1900 (NSW) is included in the definition of reportable conduct as it is a sexual offence.
Changes to reporting obligations
From 1 March 2020, when the head of entity (new terminology) becomes aware of a reportable allegation or a reportable conviction, they must notify the OCG within 7 business days and investigate the allegations.
There is greater clarity about what must be reported:
- date report received
- type of reportable conduct
- name of employee
- name and contact details of organisation and head of organisation
- whether Police have been notified
- whether a Risk of Significant Harm report was made
- nature of initial risk assessment and management (eg whether the employee has been moved)
- other additional information (if known).
If the final report into the allegation/s is not ready to submit within 30 calendar days, the head of entity must provide an interim report to the OCG with information about the progress of the investigation and an expected timeframe for completion.
There will continue to be certain exemptions to the requirement on organisations to investigate (e.g. existing class/kind exemptions). Regulations (not yet enacted) will set out a procedure to be followed by the OCG for such exemptions. Current class or kind determinations will therefore be subject to review.
Penalties for non-compliance
Penalties for failure to comply with each of the new reporting timeframes noted above will apply from 1 June 2020, being a maximum of 10 penalty units (currently up to $1,100).
Employer to investigate and OCG oversight of investigations
The Act now expressly requires employers in the first instance to investigate and make findings relating to reportable allegations, or make a determination regarding reportable convictions, which must include an analysis of the evidence and rationale for the findings or determination.
Under the new Scheme, the OCG will generally oversight the organisation’s response to the allegation, to ensure the response has been appropriate and transparent and met the organisation’s legislative obligations. The OCG may monitor the progress of an investigation, or initiate its own investigation, if it is in the public interest to do so.
Entities required to have systems, policies and processes in place
Entities are required to have systems, policies (including a code of conduct), and processes in place regarding preventing, identifying, reporting and handling reportable conduct matters that have regard to the principles of procedural fairness. This extends to enabling a person who is not an employee to make a report regarding reportable conduct involving an employee.
Additional functions and powers of the OCG
The Act allows the OCG to make guidelines about processes to follow to ensure procedural fairness for employees who are the subject of an investigation or determination. The OCG consulted on draft guidelines late last year and CCER will advise further once the final version is published.
Under the Act, the OCG can review the entity’s systems, policies and processes and failure to provide the information request may result in the entity’s name and non-compliance being published on the OCG’s website.
Scheme to cover contractors who provide services to children
In adopting a recommendation of the Royal Commission, the scope of the Scheme will be extended to contractors who hold or are required to hold a WWCC for the purpose of their work with the entity.
Entities will be required to report to the OCG about, and investigate, reportable conduct that occurs in and out of the work setting of those contractors. This obligation extends to individuals who contract with the entity directly, or employees or sub-contractors of the contractor.
Immunity from liability
Provisions in the Act establish protection from liability, and from retribution from their employer, for any person who gives a report, makes a complaint, or makes a notification to the OCG regarding reportable conduct in good faith.
What this means for you
CCER advises our members to:
- From 1 March 2020, report instances of reportable allegations or reportable convictions to the OCG and adhere to new reporting timeframes
- Review policies to ensure new legislative requirements are met
- Update processes to accurately reflect new reporting requirements
- Audit arrangements with contractors to account for increased obligations
For any members who would like further information, please contact us on 9390 5255 or email@example.com. You may wish to register your interest to attend a free information session with the OCG on the Act at https://register.eventarc.net/e/43939