Australia: New child abuse reporting obligations may hit unsupecting RTOs in Victoria

Last Updated: 23 June 2017
Article by Lachlan Roots

New Victorian Children Legislation (Reportable Conduct) Act will apply to many RTOs working with children

This article is another in our series about the Vocational Education Training (VET) Sector. While our previous articles have focused on the changes under the VET Student Loans Act 2016 this article outlines the anticipated changes for Victorian RTOs under the Children Legislation (Reportable Conduct) Act 2017 (the Act) which commences on 1 July 2017.

Compulsory reportable conduct scheme

The Act establishes a compulsory reportable conduct scheme for organisations and businesses in Victoria who provide services to children. The scheme requires these organisations and businesses to report any allegations of abuse so that even individuals who don't have a criminal record can be excluded from working with children.

The new scheme will be overseen by the Commission for Children and Young People (the Commission) which has the authority to:

  • Decide whether to conduct an investigation into misconduct;
  • Report trends to Parliament;
  • Make an application to the Magistrates' Court;
  • Monitor inquiries into abuse; and
  • Monitor the safety systems of organisations engaged in children-related work.

Under the scheme organisations and businesses will need to implement processes for reporting allegations of misconduct against children. When reportable conduct is alleged, information must be provided to the Commission and a subsequent internal investigation must take place. The Commission is also required to report its findings to the Government and distribute relevant information to the Working with Children Check Unit, with the main aim of ensuring that children are safe from risk of harm.

What is reportable conduct?

Reportable conduct in under the Act means:

  • Sexual offences again, with or in the presence of a child;
  • Sexual misconduct against, with or in the presence of a child;
  • Physical violence against, with or in the presence of a child;
  • Any behaviour that causes significant emotional or psychological harm to a child; or
  • Significant neglect of a child.

What are the obligations on heads of organisations?

The scheme will require heads of organisations (that is the chief executive officer or principal or public officer) to:

  • respond to a reportable allegation made against a worker or volunteer from their organisation, by ensuring that allegations are appropriately investigated
  • report allegations which may involve criminal conduct to the police
  • notify the Commission of allegations within 3 business days after becoming aware of the allegation
  • give the Commission certain detailed information about the allegation within 30 days after becoming aware of the allegation
  • after the investigation has concluded, give the Commission certain information including a copy of the findings of the investigation
  • ensure that their organisation has systems in place to:
    • prevent reportable conduct from being committed by a worker or volunteer within the course of their employment
    • enable any person to notify the head of a reportable allegation
    • enable any person to notify us of a reportable allegation involving the head
    • investigate and respond to a reportable allegation against a worker of volunteer from that organisation.

As noted above, heads of organisations must, within 3 business days of becoming aware of a reportable allegation, notify the Commission that a reportable allegation has been made against one of their workers or volunteers. Within 30 calendar days, heads of organisations must provide certain detailed information about the allegations and their proposed response. It is a criminal offence for a head of an organisation to fail to comply with the 3 business-day and 30-day notification obligations without a reasonable excuse.

Which RTO's will this cover?

The scheme covers a wide array of education and child services providers in three distinct phases. There may be aspects of your training programs that interact with children's in ways you hadn't previously thought was pertinent, but will raise reporting obligations.

The first phase commences when the Act does, from 1 July 2017, and encompasses:

  1. An entity registered under the Education and Training Reform Act 2006 in respect of an accredited senior secondary course or registered senior secondary qualification;
  2. An entity registered under the Education and Training Reform Act 2006 to provide a specified course t students from overseas;
  3. A disability service provider providing residential services for children with a disability;
  4. A mental health service provider that provides in-patient beds.

The second phase commences 6 months after the first phase (from 1 January 2018) and applies to:

  1. An entity that provides overnight camps for children as part of its primary activity and is not a youth organisation;
  2. A disability service provider;

The final phase commences 18 months after the first phase (from 1 January 2019) and applies to:

  1. Approved providers under the Education and Care Services National Law which includes;
    • Preschools;
    • Long day care;
    • Out of school hours care;
  1. A children's service within the meaning of the Children's Services Act 1996, being a service providing care or education for 4 or more children under the age of 13 years in the absence of their parents or guardians.

The legislation can be confusing and it can be tricky to establish whether your organisation falls under any of the above categories, particularly if your business has a dual purpose.

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.

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Authors
Lachlan Roots
 
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