Substantiating Claims of Reportable Conduct

Vince Scopelliti - Wednesday, May 01, 2019

It is one of society's great shames that our most vulnerable individuals are often open to abuse by those entrusted with their care. However, it is somewhat edifying to know that stringent legal and regulatory measures are in place in Australia to ensure that employers and others act quickly when allegations arise of abuse in care. 

In the case of issues involving children, organisations such as the Ombudsman mandate that 'reportable conduct' must be swiftly acted on by employers. In particular, a thorough investigation must be made into the situation to determine whether allegations of abuse in care have been substantiated. 

It is also important to note that organisations involved in regular contact with children are required to have proactive and preventative measures in place. After all, there is no more important issue in society than the protection of vulnerable individuals.

what is reportable conduct

Across Australian states and territories there is general uniformity in the way in which 'reportable conduct' is defined and applied. Section 25A(1) of the Ombudsman Act NSW defines reportable conduct as:

  • Any sexual offence or sexual misconduct committed against, with or in the presence of a child - including a child pornography offence.
  • Any assault, ill-treatment or neglect of a child.
  • Any behaviour that causes psychological harm to a child - even if the child consented to the behaviour. 

It is apparent that the legislation targets all manner of abuse, including sexual, physical and psychological. The net is wide and for good reason: any employee or other associate of an organisation who crosses the bounds of propriety and trust with a child should and will be held accountable for their actions. The legislation also covers situations of alleged consent by the child to the behaviour. There can be no doubt that the imbalance of power inherent in these situations is taken into account under the legalisation.

substantiating reportable conduct

While it is essential that inappropriate conduct be reported, facts must first be verified. Upon being notified of allegations related to child abuse, employers must ensure that a professional and objective investigation takes place. If there is insufficient expertise to carry out this serious task, expert advice and investigative services should be sourced externally.

Once the workplace investigation has concluded, the employer will be provided with a report which indicates whether reportable conduct has in fact been established.

Report to which body?

For employers it can be a little confusing to know which conduct to report - as well as who exactly to report issues to. This is in part because Australia has clear distinctions between states, territories and the Commonwealth, and in the field of reportable conduct there are subtle changes to be aware of. The Australian Institute of Family Studies has compiled a Resource Sheet that explains the different reporting requirements across jurisdictions, including the right body to approach in the context of an employer's place of business. 

Discipline and internal procedures 

Once there is a finding that reportable conduct has in fact occurred, attention then turns to the questions of what disciplinary measures might be appropriate in a given context. These will vary in strength and reach. For example, conduct that is substantiated but is of a lower gravity - such as slapping a child's hand for example - might be met with a requirement for training and/or a reprimand by the employer. More serious abuse of a child could lead to the dismissal of the employee and/or criminal charges being founded.

It is crucial that employers within child-related areas train their staff on the nature and consequences of reportable conduct, in addition to having robust procedures in place for dealing with such unfortunate situations. Some larger organisations such as the Department of Education will have quite extensive material and processes in this area. Yet for smaller businesses and organisations, it is vital to understand reportable conduct and to educate staff around this pressing issue. There are serious legal consequences for an organisation and its staff concerning the failure to identify and report child reportable conduct. 

WISE provides Investigating Abuse In Care training, which is specifically developed for organisations dealing with vulnerable clients. Alternatively, we are highly experienced at investigating reportable conduct matters, through our investigation services.       

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.