Child Safety Reporting: Mandatory Reporting vs Reportable Conduct Schemes
Organisations and people working with children and young people have many child safety obligations, including reporting obligations. We are often asked whether concerns need to be reported and who the concerns need to be reported to. In Victoria, like many states across Australia, obligations include mandatory reporting and reporting under the Reportable Conduct Scheme (Scheme).
Mandatory reporting exists across all Australian states and territories. Each jurisdiction has enacted legislation setting out who is required to comply with the obligations, the various types of harm that is encompassed by mandatory reporting and when a report must be made.
More recently, some states within Australia have introduced a Reportable Conduct Scheme, which was a major recommendation arising out of the Royal Commission into Institutional Responses to Child Sexual Abuse. The Scheme encompasses separate reporting obligations. Organisations and staff must understand whether they are required to comply with the Scheme, and if so, what must be reported and when.
What is the Main Difference Between Mandatory Reporting and the Reportable Conduct Scheme?
Mandatory reporting primarily relates to the safety and wellbeing of children within their families and ensuring that children and young people are safe from harm from their parents, guardians and others associated with the child.
Whereas the Reportable Conduct Scheme relates to the safety and wellbeing of children within institutional settings, and safeguarding children and young people from harm from workers within organisations. The Reportable Conduct Scheme aims to ensure that workers are suitable to work with children, and organisations properly respond and investigate allegations of abuse and harm.
What is Mandatory Reporting?
In Victoria, Part 4.4 of Children, Youth and Families Act 2005 (Vic) (Act) states that mandatory reporting is a legal obligation for specific professionals who work with children and young people (reporter). A mandatory report must be made if a mandatory reporter forms a reasonable belief, in the course of their profession, that a child or young person is at risk of harm of physical or sexual abuse. The reporter must make the report to Child Protection. The reporter must make the report after forming the belief and on each occasion when they become aware of any further grounds for forming the reasonable belief. The obligation to report cannot be delegated to another person.
Mandatory reporters in Victoria include:
- School staff, teachers and principals, kindergarten teachers, early education educators
- Youth workers, social workers, counsellors, psychologists
- Child protection workers
- Police officers
- Doctors and registered nurses
- Ministers of religion
In addition to mandatory reporting under Part 4.4 of the Act, any person can make reports to child protection, however, with the exceptions of reporting obligations under the Crimes Act 1958 (Vic), there is no legal obligation to do so. Voluntary reporting in accordance with sections 28 and 29 of the Act states that any person is able to make a report to Child Protection if they have significant concerns for the wellbeing of a child or young person.
What is the Reportable Conduct Scheme?
The Reportable Conduct Scheme is aimed at improving institutional responses to child abuse and harm by the institutions’ workers and volunteers. The Child Wellbeing and Safety Act 2005 (Vic) (CWS Act) sets out obligations under the Scheme.
The Scheme is similar to mandatory reporting; in that it requires reporting child abuse and harm to an external regulator. However, the Scheme encompasses the conduct of workers within organisations and reports are made to the Commission for Children and Young People (CCYP).
Entities who are required to comply with the Scheme must be aware of its obligations.
Entities that are required to comply with the Scheme include:
- Religious bodies
- Organisations which provide camps
- Disability Service organisations
- Out of home care services
- Government and non-government agencies.
- Schools
- Early Education and kindergartens
A reportable allegation is made when a person makes an allegation, based on a reasonable belief, that a worker or volunteer within an organisation has committed reportable conduct or misconduct that may involve reportable conduct. The head of entity must notify the CCYP of a reportable allegation within 3 business days of becoming aware of the allegation and must investigate the allegation and report back findings and reasons for the findings to the CCYP.
Below is a list of the five types of conduct which are reportable to the CCYP:
- Sexual offence committed against, with or in the presence of a child.
- Sexual misconduct committed 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.
- Significant neglect of a child.
Any individual who is a worker as defined by the CWS Act, including employees, contractors and volunteers are covered by the Scheme. The Scheme also includes Foster and Kinship carers as well as ministers or officers of religious bodies. The Scheme also covers conduct of a worker both within and outside of their role.
Members of the public can also make a report to the CCYP if they believe that a worker has engaged in reportable conduct or conduct that may constitute reportable conduct.
Are There Consequences for Failing to Report?
Under the CYF Act, it is an offence for a mandatory reporter not to comply with their reporting obligations. Failing to make a mandatory report may also constitute professional misconduct.
Under the Scheme, the CCYP has extensive compliance and enforcement powers whereby failure to comply with the Scheme may result in significant enforcement action.
How Can Safe Space Legal Help?
Safe Space Legal has extensive experience supporting schools, early learning centres and other organisations working with children to ensure they are meeting their child safety obligations. Our services include:
- Supporting organisations and staff to comply with reporting obligations;
- Drafting best practice child safety policies, procedures and codes of conduct;
- Conducting root-cause analyses of critical incidents;
- Providing training on legal obligations, duty of care and child safety;
- Conducting child safety investigations which are compliant with relevant state and territory schemes; and
- Providing sound legal advice on risk mitigation and critical incident response.
Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s safeguarding needs.