Low-Level Concerns Policies: Legal Risks and Benefits for Your Organisation

Low-Level Concerns Policies: Legal Risks and Benefits for Your Organisation

Child safety concerns do not always begin with a serious allegation or a reportable incident. Sometimes, concerns arise from behaviour that may initially appear minor, including isolated incidents of an adult communicating privately with a child, giving a child unnecessary gifts, showing favouritism, using inappropriate language, or crossing professional boundaries.

While these behaviours may not immediately meet the threshold for child abuse, mandatory reporting or reportable conduct, they should not be ignored. This is where a Low-Level Concerns Policy can play an important role.

A well-designed low-level concerns process gives organisations a structured way to identify, record, assess and respond to concerning behaviour before it escalates. It can also help organisations identify patterns that may not be apparent when individual incidents are considered in isolation.

However, a low-level concerns policy also creates legal and governance considerations. If poorly designed or implemented, it may result in serious concerns being incorrectly classified as “low-level”, statutory reporting obligations being overlooked, or sensitive information being handled inappropriately.

For organisations working with children and young people, understanding both the benefits and legal risks of low-level concerns policies is therefore essential.

What Is a Low-Level Concerns Policy?

A Low-Level Concerns Policy provides a framework for reporting and managing concerns about the behaviour of adults working or volunteering with children and young people. It does not necessarily mean that abuse has occurred. Instead, it may involve behaviour that is inconsistent with an organisation’s Code of Conduct, child safety expectations or professional boundaries, but which does not, based on the information currently available, meet the threshold for a more serious response.

Examples may include:

• unnecessary or inappropriate physical contact with a child;
• giving a particular child special attention or preferential treatment;
• giving gifts to a child without an appropriate reason;
• communicating with children through personal social media accounts;
• unnecessary private or one-to-one communication;
• spending excessive or unnecessary time alone with a child;
• using inappropriate jokes, comments or language;
• failing to maintain appropriate professional boundaries;
• taking photographs of children using a personal device; and/or
• ignoring safeguarding procedures or organisational boundaries.

Importantly, “low-level” does not mean “unimportant” or “low risk.” A behaviour that appears minor when considered on its own may become more significant when considered alongside other concerns.

For example, private messaging, gift-giving and seeking unnecessary one-on-one contact might each initially appear relatively minor. However, if concerns about the same worker continue to be raised, the organisation may identify a pattern of behaviour requiring a more serious risk assessment.

A low-level concerns process should therefore be viewed as an early-warning and safeguarding mechanism, rather than a way of dismissing or minimising concerns.

Is a Low-Level Concerns Policy Legally Required in Australia?

There is currently no single national Australian law that requires every organisation to have a policy specifically called a “Low-Level Concerns Policy”. However, that does not mean organisations can simply ignore low-level concerns.

Australia’s child-safety framework increasingly requires organisations to have effective systems for preventing harm, responding to concerns and continuously improving their safeguarding practices.

The National Principles for Child Safe Organisations (Principles) provide a nationally consistent approach to promoting child safety and wellbeing. The Principles include requirements relating to child-focused complaints processes, appropriate training, safe physical and online environments, continuous improvement, and policies and procedures that document how an organisation is safe for children. State and territory frameworks then give these principles legal effect in different ways.

A low-level concerns process can form part of the broader system an organisation uses to identify and respond to concerns, provided it operates alongside, rather than instead of, the organisation’s statutory reporting obligations.

Low-Level Concerns and Reportable Conduct Are Not the Same

Organisations must understand the difference between a low-level concern and a matter that may trigger a Reportable Conduct Scheme.

A low-level concern should never be used to avoid a statutory reporting obligation. For example, an organisation may receive a concern that a worker has been privately communicating with a child. The organisation should not automatically categorise the matter as “low-level” simply because there is no allegation of physical or sexual abuse.

The organisation should first assess the available information and determine whether the conduct may constitute reportable conduct or trigger another reporting obligation.

The Legal Risks of a Poorly Designed Low-Level Concerns Policy

While a low-level concerns process can strengthen safeguarding, poorly designed policies can create significant legal and organisational risks.

1. Misclassifying a Serious Concern

One of the greatest risks is incorrectly deciding that a matter is “low-level”. If a serious allegation is treated as an internal low-level concern, the organisation may fail to comply with mandatory reporting, Reportable Conduct Scheme or other regulatory obligations.

The policy should therefore require organisations to assess every concern against relevant reporting thresholds before determining how it should be managed.

The question should not simply be: “Is this low-level?” It should first be: “Does this concern trigger another legal or reporting obligation?”

2. Failing to Identify Patterns

A single concern may not appear particularly serious. Multiple concerns about the same person may tell a very different story. This is why low-level concerns should be appropriately documented and periodically reviewed.

Without appropriate record keeping and oversight, an organisation may miss a pattern of behaviour that should have triggered further action.

3. Poor Record Keeping

Organisations should be able to demonstrate:

• what concern was raised;
• when it was raised;
• who received it;
• what information was available;
• what risk assessment was undertaken;
• whether external reporting obligations were considered;
• what action was taken;
• whether follow-up occurred; and
• whether similar concerns had previously been raised.

Poor records can make it difficult for an organisation to demonstrate that it acted appropriately and may prevent it from identifying patterns over time.

4. Defamation and Unsubstantiated Allegations

Low-level concerns records can contain allegations about employees, volunteers and other individuals. Organisations need to distinguish between what was observed or reported and conclusions that have not yet been established.

For example, recording: “A staff member is grooming children” is very different from recording: “A concern was raised that a staff member sent a child multiple private messages through his personal social media account.”

Records should be factual, proportionate and appropriately managed. Unnecessary circulation of allegations may also create reputational, employment and defamation risks.

5. Privacy and Confidentiality

Low-level concerns may involve sensitive information about children, families, employees and volunteers. Organisations therefore need appropriate controls around:

• who can access concern records;
• where records are stored;
• who information can be shared with;
• how information is protected;
• when disclosure may be required; and
• appropriate retention and destruction arrangements.

Confidentiality should not, however, be interpreted as preventing lawful reporting to police, regulators or other authorities where disclosure is required or permitted.

6. Procedural Fairness and Employment Risks

A concern is not automatically a finding of misconduct. Organisations must balance their safeguarding obligations with fair treatment of workers.

Where a concern may result in disciplinary action, changes to duties, suspension or termination, the organisation should consider applicable employment obligations and ensure that decisions are based on appropriate evidence and fair processes.

A Low-Level Concerns Policy should therefore establish a process for assessing concerns rather than automatically treating every concern as proof of wrongdoing.

7. Creating a False Sense of Compliance

Having a Low-Level Concerns Policy does not, by itself, make an organisation child safe. Regulators increasingly focus on how policies operate in practice.

An organisation should be able to demonstrate that its people:

• understand how to raise concerns;
• feel safe to speak up;
• know who to report concerns to;
• understand when escalation is required;
• record concerns appropriately;
• respond consistently; and
• use information from concerns to improve safeguarding practices.

The National Principles emphasise that child safety needs to be embedded into organisational leadership, governance, culture, policies and practices – not simply documented in a policy.

The Benefits of a Low-Level Concerns Policy

When properly designed and implemented, a Low-Level Concerns Policy can provide significant benefits for an organisation.

1. Early Identification of Risk

One of the most important benefits is that organisations can identify concerning behaviour earlier. Rather than waiting for an incident to reach the threshold of abuse or serious misconduct, workers have a mechanism for raising concerns about behaviours that may indicate poor boundaries or emerging risks.

2. Identifying Patterns

Centralised recording allows organisations to identify recurring concerns. This can be particularly valuable where individual incidents appear to be minor but collectively indicate a pattern.

3. Stronger Safeguarding Culture

A clear reporting pathway communicates that safeguarding concerns are taken seriously. It can help create a culture where staff and volunteers understand that they do not need to wait until they are certain that abuse has occurred before speaking up.

4. Better Governance and Oversight

A well-managed concerns process gives leaders and the Board better visibility of safeguarding risks. Aggregated information can help identify:

• recurring boundary issues;
• weaknesses in training;
• concerning practices;
• gaps in supervision;
• policy weaknesses; and/or
• areas requiring additional risk controls.

This supports stronger governance and continuous improvement.

5. Greater Clarity for Workers and Volunteers

Without a clear process, workers may be unsure about whether a behaviour is serious enough to report.

A Low-Level Concerns Policy can make expectations clearer by providing practical examples and explaining what happens after a concern is raised.

6. Supporting Continuous Improvement

Low-level concerns can provide valuable information about the organisation’s safeguarding environment. For example, repeated concerns about inappropriate online communication may indicate that an organisation needs to strengthen its social media policy or provide additional training.

Similarly, repeated concerns about physical contact may indicate that professional boundaries need to be clarified.

The aim is therefore not simply to respond to individual concerns, but to use information to prevent future harm.

What Should a Low-Level Concerns Policy Include?

A robust policy should be tailored to the organisation, its workforce and the children it works with. Organisations should consider including:

Clear definitions – Explain what constitutes a low-level concern and provide practical examples.

A simple reporting pathway – Workers should know who they can report a concern to, how they can report it and what information they should provide.

Escalation requirements – The policy should clearly explain that concerns must be assessed for potential:

• mandatory reporting obligations;
• Reportable Conduct obligations;
• police reporting;
• worker screening implications;
• regulatory reporting; and
• immediate child safety risks.

Risk assessment – The organisation should have a process for determining whether immediate protective action is required.

Record keeping – Concerns should be documented consistently and stored securely.

Pattern monitoring – The organisation should periodically review concerns to identify recurring behaviours or systemic risks.

Procedural fairness – The policy should distinguish between an allegation, a concern, an assessment and a finding.

Privacy and information sharing – The policy should explain how sensitive information will be handled and when information may need to be shared.

Protection for people who raise concerns – Workers, volunteers and children should be encouraged to speak up without fear of inappropriate retaliation or victimisation.

Review and continuous improvement – The organisation should use concerns data to identify improvements to policies, training, supervision and safeguarding practices.

What Should Boards and Leaders Ask?

Boards, CEOs and senior leaders should not simply ask “Do we have a Low-Level Concerns Policy?”

Instead, they should ask:

• Do our people know what behaviour should be reported?
• Can staff and volunteers easily raise concerns?
• Do we record concerns consistently?
• How do we determine whether a concern is actually reportable?
• How do we identify patterns?
• Who reviews low-level concern data?
• How do we protect the confidentiality of those involved?
• How do we ensure procedural fairness?
• How do we know our reporting systems are working?
• What changes have we made as a result of concerns raised?

These questions move the organisation beyond policy compliance and towards effective safeguarding governance.

A well-designed Low-Level Concerns Policy should not operate in isolation. It should form part of an integrated safeguarding framework that enables your organisation to identify concerns early, respond appropriately, recognise patterns and take action to prevent harm. Most importantly, organisations should ensure that “low-level” never becomes synonymous with “low priority”.

Developing a Low-Level Concerns Policy is not simply a matter of creating another document. The policy needs to fit within the organisation’s broader safeguarding framework and operate consistently with its legal and regulatory obligations.

How Can Safe Space Legal Help?

At Safe Space Legal, we have extensive experience working with organisations across Australia to strengthen safeguarding governance and support leaders in meeting their legal obligations.

Safe Space Legal provides the following services to help organisations meet their legal obligations:

• Drafting legally sound policies, procedures, and codes of conduct;
• Providing policy audits and developing safeguarding policies, procedures, and complaint handing processes;
• Providing root cause analysis to identify gaps in policy and/or practice which put organisations at risk of non compliance with their sector-specific obligations;
• Conducting safeguarding investigations which are compliant with relevant state and territory legislation and regulations;
• Delivering tailored safeguarding training to ensure organisations are aware of their sector-specific requirements and obligations;
• Ensuring that complaints handling and reporting processes are compliant with legal obligations;
• Provide sound legal advice on risk mitigation

Contact office@safespacelegal.com.au or call (03) 9124 7321 to organise a complementary discussion in relation to your organisation’s child safety and safeguarding needs.