Guarding the Vulnerable: Reporting Obligations in Focus

Vince Scopelliti - Wednesday, July 25, 2018

With the conclusion of the Royal Commission into Institutional Responses to Child Sexual Abuse, Australian organisations are now on notice in relation to their ongoing child protection reporting obligations.

Mandatory reporting of particular conduct or convictions is a strong means of ensuring that those who care for the most vulnerable in our community, do not slip through the regulatory net.

We examine the nature and extent of these obligations, as an ongoing reminder of the importance of safeguarding children and other vulnerable individuals within organisational contexts.

Different states, different rules 

One of the difficulties that has hampered a national response to child abuse and neglect is that due to Australia being a federation of States, there can be slight differences in the reporting requirements between State jurisdictions. This leads to the possibility of uneven treatment between organisations that are mandated to report alleged child abuse.

As a result, employers should be vigilant in adhering to the reporting obligations applicable to all organisational operations, both between and across State lines. Effectively identifying and reporting the types of behaviour that require mandatory notification is an ongoing challenge across Australia - but certainly a battle that is worth continuing, considering what is at stake.

This article focuses on reporting obligations in NSW. 

Reportable conduct

Under s 25A of the NSW Ombudsman Act 1974, the nature of reportable conduct is clearly set out. Alleged conduct by an employee or prescribed volunteer that involves child sexual assault or misconduct, child abuse and/or neglect must be reported to the Ombudsman as soon as practicable by all agencies covered by the Act.

An employer's knowledge of an employee's prior conviction for reportable conduct must also be brought to the notice of the Ombudsman. Less well-known conduct such as grooming and crossing boundaries by an assailant are also covered, and employers should take care to understand the breadth of the behaviours in question.

Mandatory reporting

Under the legislation, it is mandatory for employers within three organisational types to report any alleged notifiable conduct.

These organisations are defined in the Act as designated government agencies, all other public authorities, and designated non-government agencies (such as schools, childcare centres, out-of-school-hours services and agencies providing substitute residential care).

The latter group provides examples only, and employers should examine closely whether their organisation is, in all likelihood, an entity that falls under this third grouping. Businesses or agencies who are uncertain about their reporting obligations should seek immediate professional advice regarding their status under the Act.

when do obligations arise

It is not necessary for employers to have firm evidence about notifiable conduct prior to contacting the Ombudsman. Any allegation of reportable conduct should be notified as soon as the information comes to hand. Waiting until a clearer picture or more facts can be established before reporting is not advised. There is much more risk in 'waiting it out' than there is in making a premature notification: the safety and wellbeing of children must of course be placed front-and-centre in all deliberations by employers.

Who to report to?

The Ombudsman provides information and reporting advice for NSW employers in relation to mandatory notification of alleged child abuse. If any doubt remains at all in specific circumstances, it is essential that employers seek advice on the extent and nature of their obligations. For those employees who are not at the higher rungs of an organisation, it can certainly be difficult to ascertain who to tell if child abuse or neglect is suspected. Depending upon the circumstances, involvement of Police or the Office of the Children's Guardian might be necessary alongside those mechanisms mandated by the Ombudsman.

internal processes

It is not always the case that business owners or senior management will be aware of child-related reportable conduct that requires immediate notification. For this reason, it is essential that appropriate procedures are put in place to ensure that all employees are aware of mandatory reporting obligations.

Training on the practical requirements for reporting an employee or volunteer should be regularly provided and updated. Child safety is necessarily an organisation-wide issue and time can be essential if an individual finds themselves in a situation where abuse is suspected.

WISE provides Investigating Abuse in Care training which is specifically developed for organisations dealing with vulnerable clients. This is designed to meet the needs of investigators of child abuse in line with the recommendations of the Royal Commission into Institutional Response to Child Sexual Abuse. Alternatively, we are highly experienced at investigating reportable conduct matters, through our investigation services.


Can You Deny Access to Workplace Investigation Documents?

Vince Scopelliti - Wednesday, July 18, 2018


Parties involved in a workplace investigation will often wish to gain access to documents that form part of the process. A difficult question for investigators is when - or if - it will be appropriate to release particular information. The reason for the request and the nature of the information will be key considerations, plus the investigator must find the best way to ensure that the access process is fair and transparent. As a recent case involving Australia Post reminds us, investigators need to carefully consider any decision to deny access to workplace investigation documents.

When to disclose information 

During the course of a workplace investigation it is entirely appropriate to keep parties informed of progress. In many cases, it will be quite simple to provide general information that keeps parties up-to-date, yet preserves any necessary privacy boundaries. One regular complaint from those under investigation is that they were 'kept in the dark' at every turn of the process. However, overt secrecy is often not necessary; disclosing information about delays, the nature of inquiries and the broad substance of allegations for example will generally not be problematic.

Another situation where information will need to be provided is when the investigator is required to do so by law. This could include as a response to a subpoena, summons or other court / police request, and should be responded to promptly.

Why should information be disclosed?

In many ways, it is simply professional best-practice to keep stakeholders informed of the progress of an investigation.

One specific advantage in providing regular updates and briefings is the effective management of expectations. Investigations can leave people feeling anxious, and the process can become impeded if individuals are forced to continually complain about non-disclosure. By regularly providing information about the scope, goals and process of the investigation, the 'temperature' in the workplace can be kept under control.

Providing information is also necessary to ensure transparency and accountability. The investigative process should, as far as possible, be able to withstand outside scrutiny both during and following completion. If it is later revealed that one party received greater assistance or exposure to materials than another, the chances of utilising the investigation outcomes will be greatly reduced.

A case in point

In the case of 'LC' and Australia Post (Freedom of information) [2017] AICmr 31, an employee made an FOI request for information relating to a workplace investigation.

Australia Post declined the request on the basis that the material was exempt according to the 'personal private information' exemption under s47F of the FOI Act. However, the commission found that the exemption does not apply to information that is likely to have a 'substantial adverse effect' on a person subject to investigation.

Investigators must ensure that the process remains transparent, and that any and all decisions to prevent disclosure are carefully considered in accordance with the legislation.

ensuring procedural fairness

One common mistake made by new workplace investigators is to see procedural fairness as a lightweight idea without much application in the real world. We know from experience that nothing could be further from the truth. Those under investigation deserve to know the nature of allegations made, to be given the opportunity to be properly heard, to have a support person if needed, to be questioned by an unbiased individual, and of course to have all relevant evidence considered in the decision. Disclosing information in an appropriate way, and at the right time, can certainly assist the overall fairness of the process - and prevent problems in the future.

When not to disclose

Although transparency and fairness are important elements of the workplace investigation, there are times where information should certainly not be disclosed. The right to privacy might require the investigator to protect information such as addresses, sensitive personal material or intellectual property matters as examples.

Further, it might be necessary to redact documents in order to protect anonymity or to withhold certain aspects of an allegation. However, overall investigators must ensure that a party is not substantially disadvantaged by the non-disclosure - a fine balancing act indeed.

The Australia Post case confirms our own experience in conducting fair workplace investigations. We certainly know that each situation will depend upon the particular facts when it comes to disclosing information to the parties involved.

If you need assistance on whether or not to disclose information during an investigation process, WISE provides supported investigation services and are here to help.


Fighting Age Discrimination in the Workplace

Vince Scopelliti - Wednesday, July 11, 2018


At any given time, there are multiple generations operating in the workforce: new starters, more established professionals and those heading towards retirement.

While this can create a diverse positive workplace, where a range of different experiences, attitudes and learnings can be shared, it also creates a possible environment for age discrimination.

Age discrimination can occur at all stages of employment, including recruitment, the general office experience, in workplace terms and conditions and at dismissal.

What is age discRimination? 

It is against the law to discriminate against anybody in the workplace because of their actual or assumed age.

There are two main categories of age discrimination:

  • Direct age discrimination. This applies if somebody facing a disadvantage or an advantage in the workplace exclusively because of their age. For example, if an older person is overlooked for promotion because it is assumed that they are not as comfortable with technology as a younger person, this would be direct age discrimination.
  • Indirect age discrimination. This is more difficult to identify and generally applies in circumstances where there is an ostensibly fair policy in place for all staff, which nonetheless is likely to affect staff of different ages in different ways. An example could be an employee being selected for redundancy simply because they are thought to be closer to retirement age and less likely to be affected by the redundancy.

Not Just a problem for older workerS

Although many people assume that only older workers are discriminated against, workers of all ages can become victims of age discrimination.

Examples include:

  • Young workers may be discriminated against due to:
      • Their relative inexperience in a role.
      • A perceived belief that they take their job less seriously, which may lead to them being overlooked for promotion.
      • A failure to receive increases in remuneration because co-workers who are older and have families are considered to be in greater "need" of increased pay.
  • Middle aged workers may experience discrimination arising from:
      • A perception that they lack the seniority and experience of older workers but don't have the "fresh ideas" of young staff.
      • Company events being held at times when staff with young families may struggle to attend.
  • Older workers may experience age discrimination due to:
      • A perception that they do not understand or cannot keep up with new technologies.
      • Their ideas being dismissed as being "outdated" or "old fashioned".

Legislation governing age discrimination

The applicable Australian legislation is the Age Discrimination Act 2004, which ensures discrimination is against the law, including in employment, accommodation, service provision or education.

However, it is important to remember that in certain circumstances it is lawful and may even be appropriate to treat people of different ages differently. These include:

  • When required to do so by state or Commonwealth law (for example, superannuation funds not being permitted to release money until members have reached a certain age).
  • Complying with certain health and employment programs.
  • Paying staff in accordance with youth agreements and awards.

Similarly, if somebody's age prevents them from performing the inherent requirements of the job they have applied for, it is not discrimination to refuse that employment. For example, if somebody under the age of 18 applies for a job in a bar then it is obviously not discrimination to refuse them employment.

What to do if you're experiencing age discrimination

As an employee, if you feel that you are experiencing age discrimination, you can either elect to take up any complaint internally (through the organisation's usual complaints procedures) or by making a written complaint to the Australian Human Rights Commission. Once received, the complaint can be investigated, and attempts made to resolve it via conciliation.

Alternatively, a final option could be to pursue a complaint through the Federal Court of Australia or the Federal Circuit Court.

What can workplaces do to help prevent age discrimination

Having strong policies in place to ensure that all staff are treated equally regardless of their age is one of the key factors in preventing age discrimination.

Providing equal access to training opportunities for all employees and offering flexibility around hours regardless of life stage can also help fight discrimination.

If you need help with age discrimination workplace policies and procedures, or if you have a question about age discrimination that you'd like to discuss, contact WISE today for support and guidance.