Australia: Critical new reportable conduct laws to commence in the child care industry in Victoria

In brief - New legislation to apply to child care employers in Victoria from 1 January 2019

Legislation introduced by the Victorian government on 1 July 2017 amending the Child Wellbeing and Safety Act 2005 (Vic) will introduce a "reportable conduct" scheme to regulate how employers in the child care industry identify, investigate and respond to child safety allegations made against their employees.

When do the reportable conduct laws commence operation in the child care industry?

The reportable conduct laws will apply from 1 January 2019 to all Victorian approved education and child care providers within the meaning of the Education and Care Services National Law (Victoria) and any children's service within the meaning of the Children's Services Act 1996 (Vic). For example, the laws will apply to employers such as:

• kindergartens
• after hours care services
• occasional care providers

The scheme will be overseen and regulated by the Commission for Children and Young People (Commission).

What is reportable conduct?

The reportable conduct laws will require mandatory identification, investigation and reporting by employers in the child care industry of all allegations of "reportable conduct" or misconduct towards children committed by employees, contractors and volunteers.

The term "reportable conduct" includes any information that leads a person to form a "reasonable belief" that an employee of a child care provider has committed any of the conduct below (or has committed misconduct which may involve any of the following):

• 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, or|
• sexual misconduct, committed against, with or in the presence of, a child, or
• physical violence committed against, with or in the presence of, a child, or
• any behaviour that causes significant emotional or psychological harm to a child, or
• significant neglect of a child

The conduct to be identified, investigated and reported by a child care provider is not limited to sexual abuse, but covers a broad category of behaviours that could amount to emotional or physical harm, as well as conduct crossing professional boundaries.

What is the scope of the reportable conduct scheme?

Child care providers in Victoria will need to identify, investigate and report all allegations of reportable conduct against a child that occurs in the workplace, whether the employee who allegedly committed the conduct works with children or not, and even if the alleged conduct has been committed outside normal operating hours.

What do child care providers have to do if an allegation is made?

Allegations of reportable conduct can be made by anyone, including parents. As soon as practicable after a child care provider becomes aware of a reportable allegation against an employee it must:

• investigate the reportable allegations (which can include engaging an independent investigator)
• inform the Commission of the identity of the investigator
• provide information or documents relating to the reportable allegations or the investigation, if requested by the Commission
• provide the Commission with a copy of the findings of the investigation, once the investigation has concluded, and the reasons for those findings, and details of any disciplinary action the employer proposes to take in relation to the employee
• comply with any other powers exercised by the Commission under the reportable conduct scheme, including right of entry and production of documents

How should child care providers investigate allegations of reportable conduct?

Child care providers will need to ensure appropriately trained and qualified persons can be appointed swiftly to conduct investigations into reportable conduct given that rules of natural justice must apply and investigation findings must be provided to the Commission.

The new laws allow for the outsourcing of investigations to "independent investigators" with appropriate qualifications, training and experience, which would include lawyers and accredited investigators with qualifications and experience interviewing children.

Notifications to the Commission for Children and Young People

Child care providers must notify the Commission within three business days of becoming aware of reportable allegations and provide detailed information about the allegations (such as proposed disciplinary action to be taken), not later than 30 days after becoming aware of the reportable allegations.

It is a criminal offence to fail to comply, without reasonable excuse, with the notification requirements under the scheme.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.