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Reportable conduct scheme

Information about a scheme to better protect children from abuse by improving the oversight of responses to allegations of abuse and misconduct in organisations that supervise children.

This scheme aims to improve protection for children by requiring organisations (called entities) that exercise care, supervision and authority over children to have a system of reporting in place where employees who are alleged to have been involved in misconduct are dealt with appropriately.

Responsibility of the head of the entity

The head of a relevant entity must have systems in place to:

  • prevent reportable conduct being committed
  • enable any person to report an allegation to the head
  • enable any person to report directly to the commission (if the allegation involves the head), and
  • investigate and respond to allegations.

The system must provide for the organisational head to be made aware of any report of child misconduct or abuse made against an employee. Once they are told, they must notify the Commission for Children and Young People ('the commission') for investigation or oversight. They have 3 days to do this. They must then provide more detailed information within 30 days.

The head is required to respond appropriately by undertaking an investigation of the allegation or outsourcing this investigation to an appropriately qualified person or organisation. The outcome of the investigation must be reported to the commission.

Any employees who are found to have committed 'reportable conduct' must then be assessed for their suitability to continue to work or volunteer to work with children by ensuring that information is shared with the Department of Justice and Regulation for a Working With Children Check.

See ss. 16I, 16K, 16M, 16N, 16ZD—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window) and What is a working with children check?

Penalties

The head of an entity may be fined up to 10 penalty units for failing to notify the commission as required.

See s. 16M(4)—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

Exemptions

The commission may exempt some classes of entities, or particular entities from some reporting if it believes that the entity is competent to conduct its own investigations without oversight.

See ss. 16I, 16M—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window) and What is a working with children check?

Information sharing

The scheme allows for information to be shared with the commission, the head of the relevant entity, the relevant regulator, Victoria Police, the Secretary to the Department of Justice and Regulation (for the purpose of assessing or reassessing whether an employee may hold a working with children check) and any other prescribed person or body, as necessary.

Role of police

Victoria police still have primary responsibility for dealing with allegations of criminal misconduct, and there is a requirement that the organisation reports suspected criminal misconduct to police. Any police investigation takes priority over a commission investigation and if police are investigating, the commission investigation must be suspended until police advise that it may proceed.

See s. 16B, 16U—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

What is an entity?

An entity is an organisation or class of organisations that are listed under Schedules 3, 4, and 5 of the Child Wellbeing and Safety Act 2005. The obligations of these entities are created in stages. That is, not all entities must comply with this scheme until the schedule they are listed in commences:

  • Schedule 3 commenced on 1 July 2017. Entities include:
    • schools
    • student exchange services
    • course providers for overseas students
    • disability service providers
    • mental health service providers
    • entities who get government funding for drug and alcohol treatment services
    • entities who get government funding to provide housing services for young people
  • Schedule 4 commenced on 1 January 2018. Entities include:
    • religious bodies
    • boarding school operators
    • services primarily providing overnight camps for young people
    • hospitals
    • other disability services not mentioned in Schedule 3

  • [Obligations have not yet commenced] Schedule 5 is due to commence on 1 January 2019. Entities include:
    • approved providers within the Education and Care Services National Law (regulated children's services that provide care or education)
    • Children's services (anyone providing care or education for 4 or more children aged under 13) [so family day care and gyms that provide child minding]
    • any prescribed applicable entity that has functions of a public nature.

See Schedules 3, 4, and 5—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

Who is an employee

An employee is broadly defined as a person related to the entity that has an obligation under the reportable conduct scheme, who is over 18 and who is:

  • employed by the agency
  • engaged to provide services including as a volunteer, contractor or officer
  • a minister of religion, religious leader, or
  • a foster carer.

It does not matter whether or not this employee has direct care, supervision or control over children.

See s. 3—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

What is reportable conduct?

Reportable conduct is the behaviour that the reportable conduct scheme is intended to address. It includes:

  • a sexual offence, committed against, with or in the presence of, a child, whether or not a criminal proceeding in relation to the offence has been commenced or concluded
  • sexual misconduct, committed against, with or in the presence of, a child
  • physical violence committed against, with or in the presence of, a child
  • significant neglect of a child, or
  • any behaviour that is likely to cause significant emotional or psychological harm to a child.

A reportable allegation is any information that leads a person to form a reasonable belief that an employee has committed reportable conduct or misconduct that may involve reportable conduct, whether or not the conduct or misconduct occurred within the scope of the person's employment.

See s. 3—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

Role of the commission

The commission has a broad responsibility to administer, oversee and monitor the scheme. Part of the role of the commission is to educate entities to help them to identify and report allegations of reportable conduct. They must also work with regulators to promote compliance by entities under the scheme.

Once an allegation is reported, the commission has discretion to investigate and make a finding and recommendations for action. The commission is likely to do this if it is in the public interest or if the entity is unwilling or unable to conduct the investigation itself.

The commission has the power to visit the entity, interview an employee or a child in relation to the reportable conduct. They may also get information from the police.

See ss. 16B, 16D, 16G, 16O, 16P, 16Q, 16R, 16T—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

Challenging a finding or decision

An employee or entity may apply to the commission for an internal review of a finding made by that commission under s. 16O.

If the commission decides that an employee has committed reportable conduct an employee or entity may apply to VCAT for a review of this decision. They have 28 days to do this. This 28 day period is calculated from the later date:

  • of the decision
  • that a statement of reasons is given to the employee by the commission, or
  • that the commission tells them that a statement of reasons will not be given.

See ss. 16O, 16ZI, 16ZJ—Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

More information

Legislation

Child Wellbeing and Safety Act 2005 (Vic)

  • s. 3—defines 'employee', 'head' 'entity', reportable conduct'
  • Part 5A—Reportable conduct scheme
    • s. 16A—defines an entity as something that is applicable to the reportable conduct scheme
    • s. 16B—principles of the scheme
    • s. 16C—scheme only applies to an entity that exercises care, supervision or authority over children
    • s. 16D—gives responsibility for oversight to the Commission for Children and Young People
    • s. 16G—functions of the commission
    • s. 16K—requires the head of the entity to have systems in place to prevent reportable conduct, to report allegations to them, and to notify the commission of reportable allegation involving the head
    • s. 16L—any person may disclose a reportable allegation to the commission
    • s. 16O—commission may investigate reportable allegation
    • s. 16P—commission may visit entity
    • s. 16Q—commission may interview employee
    • s. 16R—commission may interview a child
    • s. 16S—commission may interview employee subject to the allegation
    • s. 16T—commission may get information from Victoria Police
    • s. 16U—Victoria police investigation has priority
    • s. 16ZD—commission to notify Department of Justice and Regulation if finding is made that reportable conduct has been committed by an employee
    • s. 16ZI—internal review by commission
    • s. 16ZJ—review by VCAT
  • Schedule 3—entities to which reportable conduct scheme applies from 1 July 2017
  • Schedule 4—entities to which reportable conduct scheme applies from 1 January 2018
  • Schedule 5—entities to which reportable conduct scheme applies from 1 January 2019

See Child Wellbeing and Safety Act 2005 (Vic)(opens in a new window)

Children's Services Act 1996 (Vic)

  • s. 3—defines a 'children's service' and refers to national law (below) for definition of 'educational and care service'

See Children's Services Act 1996 (Vic)(opens in a new window)

Education and Care Services National Law Act 2010 (Vic)

  • s. 2—purpose of the act to create a National Law to regulate education and care services for children
  • s. 4—National law is set out in the schedule
  • Schedule—sets out the education and care services national law
    • s. 5—defines a 'children's service' and an 'education and care service'

See Education and Care Services National Law Act 2010 (Vic)(opens in a new window)

Updated