Reportable Conduct Scheme: What you need to know
As of 1 July 2017, all schools in Victoria must comply with the Reportable Conduct Scheme requirements set out in the Child Wellbeing and Safety Act 2005 (Vic). Heavy penalties apply for failing to comply with the requirements so principals must ensure they are familiar with the scheme and their obligations under it.
The Reportable Conduct Scheme has been designed to ensure that the Commission for Children and Young People (CCYP) are aware of every allegation of certain types of misconduct by employees involving children. The Reportable Conduct Scheme requires heads of relevant organisations to:
- Have a system in place to prevent child abuse;
- Be able to identify reportable conduct when it arises;
- Ensure systems are in place, are known and are accessible for reporting allegations of misconduct;
- Promptly notify the CCYP of any allegations of misconduct;
- Report to and keep the CCYP updated with the investigations and response of the organisation into an allegation of misconduct.
The scheme, at its core, requires schools and school leaders to identify, investigate and report on reportable conduct.
What is Reportable Conduct?
There is an allegation of ‘reportable conduct’ where a person has a reasonable belief that there has been conduct set out in the following table:
|A sexual offence committed against, with or in the presence of a child
|Sexual assault, indecent acts, possession of child abuse material, grooming etc.
|Sexual misconduct committed against, with or in the presence of a child
|Conduct and acts of a sexual nature which fall below the criminal threshold but poses a significant risk to children – behaviour, physical contact or speech of a sexual nature
|Physical violence committed against, with or in the presence of a child
|An act which causes physical injury or pain or using inappropriate or excessive force – hitting, kicking, punching, unreasonable restraint etc.
|Behaviour causing significant emotional or psychological harm
|Verbal abuse, exposure to violence, threats of harm, coercive or manipulative behaviour, persistent hostility/rejection, humiliation or belittling
|Significant neglect of a child
|Physical neglect, medical neglect, supervisory neglect, educational neglect
The harm must be significant
Allegations of reportable conduct in relation to behaviour causing significant emotional or psychological harm must be carefully considered. Improper reporting can expose the principal to adverse claims by the employee against who the allegation is made.
To be considered significant under the scheme, the alleged harm must be more than trivial or temporary. Often, a medical assessment may be required to determine whether significant emotional or psychological harm has been suffered.
An employee who takes lawful and reasonable disciplinary action will not be considered to have engaged in reportable conduct even if that action results in the upset of a child.
What is reasonable belief?
Reasonable belief is not defined in the Child Wellbeing and Safety Act 2005 so regard must be had to the position in other jurisdictions. A person will have a reasonable belief where they have a belief that is more than a suspicion, speculation or rumour. The position to be adopted is that of the reasonable person.
Essentially, a person that suspects misconduct on the part of an employee should ask themselves, ‘would a reasonable person in the circumstances consider that wrongdoing has occurred?’
The CCYP give some guidance as to when person is likely to have a reasonable belief:
- When the person has observed the conduct themselves.
- When the person heard directly from the child (victim) that the conduct occurred.
- When the person received information from another credible source about the conduct.
Who is an ‘employee’?
Schools are required to identify, investigate and report all allegations of reportable conduct against a child at the school allegedly committed by an ‘employee’.
An employee is a person over the age of 18 years who is:
- Employed by the school (whether or not in a capacity that relates to children).
- Engaged by the school to provide services (eg. Volunteers, contractors etc.).
- A minister or religion or religious leader or an employee or officer of the religious body.
The term ‘employee’ is broadly defined and likely captures most persons within the school setting. Principals should seek guidance from Brennan Law Partners if they are unsure whether a person is an employee for the purposes of the reportable conduct scheme.
When should I report?
If a principal of a school becomes aware of a reportable allegation against an employee of the school, they must notify CCYP within 3 business days. Notifications must be made using CCYP’s online notification form.
Then, within 30 days of being made aware of the reportable allegations, the principal must notify (in writing) CCYP of:
- Detailed information about the allegation;
- Whether or not the school proposes to take any disciplinary action against the employee and why;
- Any written submissions made by the employee to the school regarding any proposed disciplinary action.
Who should investigate?
When an allegation of reportable conduct is brought to the attention of a principal, the principal should move quickly to determine the course of the investigation, including who it is to be conducted by. Indeed, the CCYP will need to be advised of the investigator when reporting the incident.
Schools are able to conduct the investigation internally or appoint an external investigator. As with all investigations, they must be conducted promptly, fairly and in accordance with the principles of natural justice.
If a principal decides to appoint an external/independent investigator, they should ensure that they maintain appropriate qualifications, training and experience. The Private Security Act 2004 (Vic) permits only licenced persons (or lawyers) to act as investigators.
When deciding whether to conduct an investigation internally or engage an independent investigator, regard should be had to the following factors:
- The competency and capacity of internal staff to investigate the matter whilst complying with the principles of natural justice and evidence gathering;
- The resources of the school;
- The need to ensure impartiality and independence in the investigation process;
- Whether legal advice is required.
Once the investigation has concluded, a principal is required to provide CCYP with a copy of the relevant findings and advise of any proposed disciplinary action, including the reasoning justifying that course of conduct.
Penalties for non-compliance
A principal who fails to comply with the requirements under the Reportable Conduct Scheme can face criminal liability, including a fine of up to 10 penalty units.
How can Brennan Law Partners assist?
If you are unsure about any step in the Reportable Conduct Scheme, or need legal advice when considering disciplinary action, we encourage you to contact us.
If you have any questions regarding any information in this BLP Brief, we welcome you to contact us at any time.
This is meant as a guide only and should not be taken as legal advice.