Australia: Reportable conduct: Top five tips for Victorian schools

IN BRIEF: A REPORTABLE CONDUCT SCHEME HAS BEEN INTRODUCED UNDER RECENT NEW LAWS IN THE CHILD WELLBEING AND SAFETY ACT 2005.

On 1 July 2017, new laws commenced in Victoria under the Child Wellbeing and Safety Act 2005 (Vic), introducing a "reportable conduct" scheme mandating how government and non-government schools in Victoria must go about the task of ensuring child safety in their organisations. Three key words embody the duties imposed upon schools by these laws – identification, investigation and reporting.

FIVE TIPS FOR SCHOOLS ON HOW TO ENSURE COMPLIANCE WITH THE NEW REPORTABLE CONDUCT SCHEME.

1. BE ABLE TO IDENTIFY REPORTABLE CONDUCT WHEN IT ARISES

The reportable conduct laws require mandatory identification, investigation and reporting by schools (and other organisations providing services to children) of all allegations of "reportable conduct" towards children committed by employees, contractors and volunteers of the organisation. Schools must be able to identify potential reportable allegations when they arise.

The term "reportable conduct" means any information that leads a person to form a "reasonable belief" that an employee, contractor or volunteer of the school has committed or engaged in any of the following in relation to a "child" (being a person under the age of 18 years):

• a sexual offence committed against, with or in the presence of, a child. For example, this may include sexual assault, indecent acts, possession of child abuse material, or 'grooming' a child in order to commit a sexual offence. A full list of the relevant sexual offences is set out in the Sentencing Act 1991 (Vic)
• sexual misconduct committed against, with or in the presence of, a child. This definition is intended to capture conduct that falls below the criminal threshold, but still poses a significant risk to children, for example developing an intimate relationship with a child, inappropriately discussing sex and sexuality with a child or other overtly sexual acts that could lead an organisation to take disciplinary or other action
• physical violence committed against, with or in the presence of, a child, including an act that causes physical injury or pain, such as hitting/kicking/punching/pushing/shoving/grabbing/throwing/shaking, using an object to hit or strike, or using inappropriate restraint/excessive force
• any behaviour that causes significant emotional or psychological harm to a child. Examples may include exposure to violence or threats of violence, self-destructive behavior, antisocial behavior, persistent hostility/rejection, humiliation/belittling or scapegoating
• significant neglect of a child. Examples of different types of neglect may include supervisory neglect, physical neglect or medical neglect

Whether an inquiry into reportable allegations will proceed depends on if the "entity head" of the school (principal or head of the school's governing body) can form a "reasonable belief" that the conduct may have occurred. The phrase is not defined in the legislation. However, guidance from other jurisdictions suggests a reasonable belief is more than suspicion, speculation or rumour. It is an objective test that will require relevant individuals to ask themselves, 'would a reasonable person in the circumstances believe that wrongdoing has occurred'?

Guidance from the Commission for Children & Young People (CCYP), the agency that will administer the scheme in Victoria, suggests a person is likely to have a reasonable belief if they:

• observed the conduct themselves
• heard directly from a child that the conduct occurred
• received information from another credible source (including another person who witnessed the reportable conduct or misconduct).

2. BE ALERT TO THE FACT THAT REPORTABLE CONDUCT IS NOT LIMITED TO EMPLOYEES WHO WORK WITH CHILDREN DURING SCHOOL HOURS

Reportable allegations can be made by anyone, including students, parents or members of the general public. Schools will need to identify, investigate and report all allegations of reportable conduct against a child at the school allegedly committed by an "employee". The term "employee" is broad for the purposes of the reportable conduct laws, including a person over the age of 18 years of age who is:

• employed by the school, whether or not the person is employed in connection with any work or activities of the entity that relate to children; or
• engaged by the school to provide services, including as a volunteer, contractor, office holder or officer, whether or not the person provides services to children; or
• a minister of religion, a religious leader or an employee or officer of the religious body. This means a parish priest will also fall within the definition of an "employee" for the purposes of the reportable conduct scheme, capturing a large number of Catholic schools in Victoria under the control of a local parish or canonical administrators.

3. UNDERSTAND SCHOOL REPORTING AND NOTIFICATION OBLIGATIONS

If a principal of a school (or other relevant entity head) becomes aware of a reportable allegation against an employee of the school, they must notify the CCYP in writing within three business days after becoming aware of the reportable allegation of the following:

• that a reportable allegation has been made against an employee of the school
• the name and date of birth of the employee concerned
• whether Victoria Police has been contacted about the reportable allegation
• contact details for the school

Notifications must be made using the CCYP's online notification form.

As soon as practicable and within 30 days after becoming aware of the reportable allegation, a principal (or other relevant entity head) must then notify CCYP in writing of the following:

• detailed information about the reportable allegation
• whether or not the school proposes to take any disciplinary in relation to the employee and the reasons why it intends to take, or not to take, that action
• any written submissions made to the school concerning the reportable allegation that the employee wished to have considered in determining what, if any, disciplinary or other action should be taken in relation to the employee

The relevant entity head of a school can be liable for a criminal offence (a fine of 10 penalty units = $1,554.60) for failure without reasonable excuse, to comply with these reporting obligations.

4. DECIDE WHO SHOULD INVESTIGATE REPORTABLE ALLEGATIONS

As soon as practicable after the entity head of a school becomes aware of a reportable allegation against an employee of the school, they must investigate it or permit an independent investigator engaged by the school to. The Commission must be informed of the identity of the body or person who will conduct the investigation.

Schools will need to ensure appropriately trained and qualified persons can be appointed swiftly to conduct investigations into reportable conduct taking into account investigative standards and the rules of natural justice. The new laws allow for the outsourcing of investigations to "independent investigators" with appropriate qualifications, training and experience. In Victoria, it is a criminal offence under the Private Security Act 2004 (Vic) for any person (except for a solicitor) to act as an investigator unless they are licensed.

Factors that will influence whether schools should appoint an independent investigator of reportable conduct allegations include:

• the competency of internal staff, including the need to ensure the rules of natural justice are afforded to employees under investigation and the requirement to ensure the correct standard of proof is applied
• adherence to the rules relating to the admissibility of evidence when weighing up different types of evidence and making findings as to whether reportable conduct may have occurred
• knowledge of the legal principles expected of Courts and Tribunals when investigators undertake workplace investigations
• internal resources and the ability to undertake a swift investigation in a timely manner
• the need to ensure independence and impartiality in the investigation process. For example, if a complaint is made against the Principal or a member of the school Board, the investigation should be outsourced
• whether the school requires legal advice arising from the findings of the investigation or the maintenance of legal privilege over the advice and the investigation report

All of the above factors will also be relevant to any unfair dismissal process, if an employee is ultimately dismissed for committing reportable conduct. Therefore, it is crucial that the initial investigation is undertaken correctly and in accordance with contemporary judicial expectations.

5. MAKE FINDINGS AND DECIDE WHAT DISCIPLINARY ACTION WILL APPLY

As soon as practicable after an investigation has concluded, the school's entity head must give the CCYP a copy of the findings and reasons arising from the investigation and details of any disciplinary or other action that the school proposes to take in relation to the employee and the reasons for that action. If no disciplinary action is taken, the CCYP will require an explanation.

Schools are strongly encouraged to seek legal advice when deciding whether to impose or not impose disciplinary action and to consider appropriate dismissal strategies if termination of employment is being considered.

IT IS IMPORTANT THAT SCHOOLS ARE AWARE OF, AND FOLLOW THE STEPS OUTLINED IN THE REPORTABLE CONDUCT SCHEME AS CRIMINAL PENALTIES APPLY FOR CON-COMPLIANCE.

The reportable conduct scheme is now in operation in all Victorian government and non-government schools. While there will be an unofficial lead in period for schools to familiarise themselves with the new scheme, criminal penalties for non-compliance will ultimately apply. Therefore, schools must have at least the following in place now:

• a system for preventing the commission of reportable conduct by an employee of the school within the course of the person's employment
• a system for enabling any person, including an employee of the school, to notify the entity head or principal of a reportable allegation of which the person becomes aware
• a system for enabling any person, including an employee of the school, to notify the Commission of a reportable allegation involving the entity head of the school of which the person becomes aware
• a system for investigating and responding to a reportable allegation against an employee of the school

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.