June 21-25 is the inaugural Working with Children Week (#WWCW2021). During this week, the NSW Office of the Children’s Guardian (OCG) and its relevant networks will use this annual event to raise awareness of key child protection provisions in NSW.
In NSW more than 1.8 million people hold a Working with Children Check (WWCC) clearance to carry out volunteering or paid work. The type of work may involve examples such as providing coaching for sporting groups all the way up to working in the education sector as teachers within schools.
The Child Protection (Working with Children) Act 2012 defines child related work to include work that involves direct contact with a child or children that is a usual part of the work and more than incidental to the work. The Act outlines various fields that would be considered child-related work. This includes, but is not limited to:
- Child development – mentoring and counselling services for children
- Child protection – child protection services
- Children’s health services – the provision of health care in wards of hospitals where children are treated and the direct provision of other child health services
- Clubs or other bodies providing services to children – clubs, associations, movements societies or other bodies
- Disability services – respite care or other support services for children with a disability
- Early education and child care – education and care services, child care centres, nanny services and other child care
- Education – schools or other educational institutions (other than universities) and private coaching or tuition of children
- Justice services – detention centres
- Religions services – any religious organisation.
Most of us who have worked in child-related employment are acutely aware that we need our WWCC clearance before an employer can offer us the job. In fact, there are penalties for any employer who commences employing, or continues to employ, a worker in child-related work if the employer knows or has reasonable cause to believe that the worker does not hold a clearance or has been interim barred from engaging in such work.
However, what is not always clear to workers in child-related employment, or in some cases even their employers, is the nature of conduct that could see their clearance canceled or their application for a clearance refused. In NSW, the framework known as the Reportable Conduct Scheme is closely linked to the WWCC and can impact on whether an employee can work, or continue to work, with children.
The Reportable Conduct Scheme
The Reportable Conduct Scheme has been in operation since May 1999 and was previously operated by the Office of the NSW Ombudsman. On 1 March 2020, it was transferred to be overseen by the OCG and administered under the Children’s Guardian Act 2019 (NSW). The scheme provides a framework for the oversight of how organisations respond to reportable allegations that have been made against their employees.
The scheme places certain legal obligations on employers and organisations, referred to in the legislation as “relevant entities”. The heads of these entities are required to notify the OCG of reportable allegations and reportable convictions against their employees, investigate the allegation(s), advise the OCG of the outcome and take appropriate action to prevent reportable conduct by employees.
What are reportable allegations?
A reportable allegation is an allegation that an employee has engaged in conduct that may be reportable conduct. So what is reportable conduct?
Reportable conduct is defined by the Children’s Guardian Act 2019 (NSW) as:
- A sexual offence
- Sexual misconduct
- Ill-treatment of a child
- Neglect of a child
- As assault against a child
- An offence under s43B (failure to protect) or s316A (failure to report) of the Crimes Act 1900 (NSW); and
- Behaviour that causes significant emotional or psychological harm to a child.
The Act also provides conduct that is NOT reportable conduct. This includes:
- Conduct that is reasonable for the purposes of discipline, management and care of a child, having regard to:
- the age, maturity, health or other characteristics of the child, and
- any relevant code of conduct or professional standard
- The use of physical force, if
- in all circumstances, the physical force is trivial or negligible; and
- the circumstances in which it was used have been investigated and the result of the investigation has been recorded in accordance with appropriate procedures
- Conduct of a class or kind exempted from being reportable conduct by the Children’s Guardian under section 30.
Further information about each type of reportable conduct can be found here.
Employer reporting obligations
The Reportable Conduct Scheme operates as an “allegations based” scheme. This means that that there only has to be an allegation that reportable conduct may have occurred to trigger a requirement that the employer must notify the OCG of the allegation. There does not necessarily even need to be evidence to support the allegation during the initial reporting.
The heads of relevant entities (or their delegate) must notify the OCG of the reportable allegation(s) within 7 business days. They must then investigate the allegations and making a finding about the reportable allegation (i.e., did they find that there was sufficient evidence to sustain that reportable conduct occurred). The entity must provide the OCG with an ‘interim report’ after 30 days, outlining the status of the investigation up to that point and any action taken. The entity report must also include any further action proposed to be taken (e.g., further investigation).
Making a finding regarding reportable conduct
After an investigation, the heads of relevant entities must advise the OCG of the findings they have made regarding the allegations and if they found that reportable conduct occurred. The Act provides that the decision maker must make a finding of reportable conduct if it is satisfied that the case against the employee has been proved on the balance of probabilities. The outcome must be forwarded to the OCG using their Entity Report Form and should include all relevant investigation documents or correspondence.
The head of relevant entities are also responsible for ensuring there are systems and processes in place within the organisation to prevent, identify and respond to reportable conduct. They are responsible for making sure that employees know how to make reports and raise concerns.
How can a finding of reportable conduct affect a WWCC?
If a finding of reportable conduct has been made against an employee or it has been determined that they have been convicted of a reportable conviction, the OCG must internally report the findings to the WWCC Directorate within the OCG, if the findings involved:
- Sexual misconduct
- A sexual offence
- A serious physical assault8
Schedule 1 of the Child Protection (Working with Children) Act 2012 (NSW) sets out occasions (“triggers”) where the OCG must conduct a risk assessment of someone who is applying for a WWCC clearance or someone that holds a WWCC clearance. It generally provides that a risk assessment must be conducted if proceedings have been commenced against a person for any one of numerous criminal offences listed in Schedule 2 of the Act. These offences (also called “disqualifying offences”) are mostly against children. However, the Act also provides that a finding of misconduct involving children will also trigger a risk assessment.
The decision maker in these matters should advise the employee of the adverse findings regarding sustained sexual misconduct, a sexual offence or serious physical assault, and include information alerting them to the fact that it may trigger a risk assessment by the WWCC Directorate.
Key points for employers
It is clear that employers who are also relevant entities for the purposes of the reportable conduct scheme are bound by several obligations under the legislation. This includes:
- ensuring that there are policies and procedures in place to support the protection of children
- notifying the OCG of any reportable allegations that they become aware of.
- investigating any reportable allegations and making findings
- reporting the findings to the OCG.
However, it is not always so clear for employees how a finding of reportable conduct may impact on their employment and their clearance to continue working with children.
If you or your organisation require an independent investigation regarding reportable allegations within your organisation, WEIR Consulting (National) have experienced child protection investigators with a background of working within the scheme.
For further information or assistance contact WEIR