Employment-related child protection
The ACT has introduced a reportable conduct scheme to oversee how organisations prevent and respond to allegations of child abuse and misconduct. The scheme will commence on 1 July 2017.
Certain employers who work with children are covered by the scheme and will need to report to the ACT Ombudsman. Broadly, ‘reportable conduct’ covers allegations or convictions of child abuse or misconduct toward children.
The reportable conduct scheme does not interfere with reporting obligations to ACT Policing or Children and Youth Protective Services (CYPS). If employers suspect criminal conduct has occurred, they should report to police in the first instance.What is reportable conduct?
- sexual offences and convictions where a child is a victim or is present
- offences against the person, including physical offences and convictions, where a child is a victim or is present
- conviction, or finding of guilt, under a territory law or a state or Commonwealth law, involving reportable conduct
- offences against the Education and Care Services National Law (ACT) Act 2011 (inappropriate discipline or offences relating to protecting children from harm)
- ill-treatment of a child (including emotional abuse, hostile use of force/physical contact, neglect and inappropriate, restrictive intervention)
- psychological harm
- misconduct of a sexual nature.
- all ACT Government Directorates
- health service providers
- kinship and foster care
- residential care organisations
- government and non-government schools
- child care services
- education and care service providers, such as after school care.
- sporting clubs
- religious organisations generally (unless otherwise classified as a designated entity, such as a non-government school)
- a service which provides instruction in a particular activity (e.g. ballet, piano, swimming)
- Scouts and Girl Guides
- personal arrangements made for education and care of children (e.g. babysitting)
All employees under a contract of employment to an employer (designated entity) outlined above are included in the scheme. This means that some employees under the scheme will not provide services directly to children. Volunteers and contractors to an employer under the scheme are also considered to be employees but only if they are engaged to provide services to children.
Employers (designated entities) must report allegations or convictions occurring in an employee’s professional or personal capacity. For example, conduct by an employee while volunteering in a personal capacity, may need to be reported by an employer who falls under the reportable conduct scheme.
For purposes of the ACT Reportable Conduct Scheme, a child is a person aged under 18 years old.
An employer must:
- notify the Ombudsman about any reportable conduct allegations or convictions involving an employee by submitting a s 17G Notification as soon as possible, but no later than 30 days after the employer becomes aware of the conduct
- investigate any allegations of reportable conduct and provide a final report to the Ombudsman
- report to other entities as required (for example, ACT Policing, CYPS, Access Canberra, Teacher Quality Institute, Children’s Education and Care Assurance, Human Rights Commission, Australian Health Practitioner Regulation Agency)
- adjust their policies and procedures to reflect their new responsibilities under the scheme and educate employees about these.
How and when does an employer notify the ACT Ombudsman about a reportable conduct allegation or conviction?
The reportable conduct scheme is allegation based. An employer (designated entity) must report any allegation or conviction of reportable conduct that they became aware of after 1 July 2017. An employer should:
- contact the Ombudsman as soon as possible. For early consultation, this can be done by telephone or email
- notify the Ombudsman using as 17G Notification within 30 days of the employer (head of the designated entity) becoming aware of the allegation
- provide details of the reportable allegation or conviction and what the employer proposes to do or has done
- provide copies of relevant material available at the time of notification
- report to other entities as required (for example, ACT Policing, CYPS, Access Canberra, Teacher Quality Institute, Children’s Education and Care Assurance, Human Rights Commission).
The employer is still required to notify the Ombudsman of the allegation even if CYPS and/or ACT Policing are already investigating a reportable allegation against an employee.
For more information, see the ACT Ombudsman Practice Guide No. 5: Employer responsibilities.
If the employer was aware of an allegation prior to 1 July 2017, should this information be reported to the ACT Ombudsman?
No, only allegations or convictions about reportable conduct which the employer (designated entity) becomes aware of on or after 1 July 2017 should be reported to the ACT Ombudsman.
An employer may still need to report allegations arising before 1 July 2017 to Children and Youth Protection Services or ACT Policing as appropriate.
What happens when an employer reports to the ACT Ombudsman about an allegation or conviction relating to reportable conduct?
After a s 17G Notification is filed, employers (designated entities) will continue in their response to, or investigation of, an allegation under the oversight of the Ombudsman.
The Ombudsman may ask for updates as to the progress of an investigation and may confer with the people conducting the investigation about the nature, conduct or progress of the investigation. This may include requests for relevant documents and information to be provided to the Ombudsman. In some cases, the Ombudsman may decide to attend any interviews conducted by, or on behalf of, the employer.
In some circumstances, the Ombudsman may share this information with ACT policing and other key organisations to better protect children from abuse.
For more information see: The ACT Ombudsman Practice Guide No. 1: How the ACT Ombudsman Responds to Notifications and Reports.
How do I make a complaint to the ACT Ombudsman about an employer’s response to a reportable conduct matter?
The ACT Ombudsman can receive and may investigate complaints, including from an employee, about how an employer (designated entity) is responding, or not responding, to an allegation or conviction of reportable conduct against an employee. Complaints to the Ombudsman may be made by telephone on 02 6276 3770 or via email: email@example.com
Should an employer notify the ACT Ombudsman about a reportable conduct allegation or conviction if ACT Policing is already investigating the matter?
Yes, employers (designated entities) are required to notify the ACT Ombudsman within 30 days of becoming aware of a reportable conduct allegation or conviction. Employers are encouraged to notify the Ombudsman as soon as possible after learning of an allegation and this is especially important when police are involved.
An investigation by ACT Policing, or any other law enforcement agency, takes precedent over an employer’s response to an allegation. Employers should wait for instruction from ACT Policing before proceeding with their investigation. This includes informing the employee, who is the subject of the allegation, about the matter. Police may ask an employer to delay informing an employee in certain circumstances.
Reportable conduct covers a broader range of conduct compared to the types of child abuse which must be reported to Children and Youth Protective Services (CYPS). This means employers may become aware of an allegation or conviction that is reportable to the Ombudsman but is not conduct which must be mandatorily reported to CYPS.
For example, if an employee crosses professional boundaries by giving a child excessive gifts or texting them on their personal mobile, this may under certain circumstances, amount to reportable conduct. It would not, however, necessarily be reported to CYPS.
Likewise, an employer who is a mandated reporter may need to report conduct to CYPS, about a disclosure, but if the alleged behaviour did not involve an employee (e.g. the allegation is against a parent or patient), there is no requirement to report to the ACT Ombudsman.
The fact that an employer has reported to CYPS does not mean that they should not report to the Ombudsman, as appropriate, and vice versa. The same can be said about ACT Policing.
The best place to start may be to consider a risk assessment. For more information on these assessments, see The ACT Ombudsman Practice Guide No. 3: Risk Management Following an Allegation of Reportable Conduct Against an Employee.
The next step may be to contact the ACT Ombudsman and discuss the allegation to ensure the alleged behaviour does amount to reportable conduct and that the matter is within jurisdiction of the ACT reportable conduct scheme. The Ombudsman may be contacted by telephone on 02 6276 3770 or via email: firstname.lastname@example.org.
For guidance on how to proceed with an investigation, see The ACT Ombudsman Practice Guide No. 4: Planning and Conducting an Investigation.
The ACT Ombudsman has written An Introduction to The ACT Reportable Conduct Scheme for Employees. This is an outline, designed for employees, of how the scheme works and who is covered under the scheme.
The information an employer is required to report to the Ombudsman is recorded in the s 17G Notification.
Each employer (designated entity) is responsible for educating employees about the scheme. Speaking to a supervisor and asking if the reportable conduct scheme applies is a good place to start. If the scheme does apply, employees can ask how the scheme will be implemented in the workplace
In addition, each employer has is responsible for:
- ensuring systems, policies and procedures are in place for recording and responding to or investigating allegations or convictions of reportable conduct involving employees
- establishing systems that require employees to notify the employer (or delegate), as soon as possible, of any concern, allegation or conviction involving reportable conduct against an employee. (see The ACT Ombudsman Practice Guide No. 5: Employer responsibilities).
The Ombudsman will work with employers under the scheme to build on existing misconduct procedures and reporting obligations. The Ombudsman will:
- monitor employers’ investigations and analyse trends
- share information with police and key organisations to better protect children from abuse
- take complaints about the handling of reportable conduct
- provide guidance and support to entities on best practice, including conducting investigations that are procedurally fair
- consider investigating an allegation or conviction in limited circumstances
- monitor the policies, practices and procedures of an employer for the prevention of child abuse and child related misconduct.
Other relevant information:
- Keep watching for updates to our Resource Kit.
- ACT Chief Minister, Treasury and Economic Development Directorate's reportable conduct information.
- The Reportable Conduct and Information Sharing Legislation Amendment Act 2016 will update the Ombudsman Act 1989 when it comes into effect on 1 July 2017.
- Contact us for more information about the reportable conduct scheme.
If employers suspect criminal conduct has occurred, they should report to police in the first instance