Employees and volunteers FAQ
Every day in NSW hundreds of thousands of adults will be engaged with children and young people as either paid employees or volunteers. Most organisations that involve children in their work – and their workers – share a strong commitment to keeping children safe.
This child-safe approach usually includes worker-screening, codes of conduct, education and supervision of both paid and unpaid staff about appropriate and acceptable behaviours when workers are engaged with children.
The Reportable Conduct Scheme is focused on both preventing and responding to abuse of children by workers in organisations. This includes paid employees, volunteers and contractors delivering services to children.
‘Reportable allegation’ for a relevant organisation under the Children's Guardian Act 2019 means an allegation that a relevant employee has engaged in conduct that may be ‘reportable conduct’ either within or outside of the person’s employment with the entity.
What is reportable conduct?
The legislation defines 'reportable conduct' as the following conduct whether or not any criminal proceedings in relation to the offence have been commenced or concluded:
- a sexual offence committed against, with, or in the presence of a child
- sexual misconduct with, towards, or in the presence of a child
- ill-treatment of a child
- neglect of a child
- an assault against a child
- behaviour that causes significant emotional or psychological harm to a child
- an offence under section 43B or 316A of the Crimes Act 1900.
Reportable conduct does not extend to:
- conduct that is reasonable for the purposes of the discipline, management or care of a child, having regard to the age, maturity, health or other characteristics of the child and to any relevant codes of conduct or professional standards
- the use of physical force that, in all the circumstances, is trivial or negligible, but only if the matter is to be investigated and the result of the investigation recorded under workplace procedures
- conduct of a class or kind exempted from being reportable conduct by the Children’s Guardian under section 30 of the Children’s Guardian Act 2019 or was previously exempted by the Ombudsman and is subject to the transitional arrangements.
To learn more about what behaviours define reportable conduct go here (link to 1.4.1 - Identifying Reportable Allegations)
What is the role of the Office of the Children's Guardian?
The Reportable Conduct Scheme is designed around relevant entities taking responsibility for responding to reportable allegations against their relevant employeess. The Office of the Children’s Guardian aims to protect children from harm by providing oversight, guidance and education in relation to investigations conducted by the head of a relevant entity into any reportable allegations and convictions that are made against an employee/volunteer or a contractor (where the role requires that person to hold a Working With Children Check clearance).
Following a notification to the Office of the Children’s Guardian, we will:
- monitor and guide the progress of the organisation’s investigation into the reportable allegation or conviction
- assess whether the organisation conducted a fair, effective and timely investigation
- determine that appropriate action has been taken by the organisation as part of its response to (and following) the allegation or conviction
- monitor relevant entity's systems and provide advice for preventing, detecting and dealing with reportable conduct and reportable convictions.
A notification of a reportable allegation to the Office of the Children's Guardian does not interfere with reporting obligations to NSW Police, the Department of Communities and Justice, or any other relevant bodies.
What are the types of reportable conduct?
A sexual offence is an offence of a sexual nature under a law of NSW, another state/territory, or the Commonwealth committed against, with or in the presence of a child. Examples include but are not limited to:
- sexual touching of a child
- a child grooming offence
- production, dissemination or possession of child abuse material.
This is any conduct with, towards, or in the presence of, a child that is sexual in nature (but is not a sexual offence).
Examples of this behaviour includes but is not limited to:
- descriptions of sexual acts without a legitimate reason to provide the descriptions;
- sexual comments, conversations or communications;
- comments to a child that express a desire to act in a sexual manner towards the child or another child.
Neglect, of a child, means a significant failure to provide adequate and proper food, supervision, nursing, clothing, medical aid or lodging for the child that causes, or is likely to cause, harm to the child by a person with parental authority, an authorised carer or an employee (if the child is in the employee's care).
Examples could include but are not limited to:
- failing to protect a child from abuse
- exposing a child to a harmful environment such as illicit drug use or manufacturing.
This means conduct towards a child that is unreasonable and seriously inappropriate, improper, inhumane or cruel. Examples could include but are not limited to:
- making excessive or degrading demands of a child
- a pattern of hostile or degrading comments or behaviour towards a child
- using inappropriate forms of behaviour management towards a child.
- the intentional or reckless application of physical force without lawful justification or excuse; or
- any act which intentionally causes another to apprehend immediate and unlawful violence.
Examples could include but are not limited to:
- hitting, striking, kicking, punching or dragging a child
- threatening to physically harm a child.
Reportable conduct definitions
How will my organisation respond to the reportable conduct allegation?
When a reportable allegation is raised against an employee, volunteer or contractor, the head of the entity will need to take certain steps to respond to the allegation so that they comply with their legal obligations.
Most organisations understand that an investigation can be stressful and are encouraged to conduct them in a timely, respectful and thorough manner.
For processes to be accepted as appropriate and fair, they must be applied consistently and with integrity and treat all people involved in investigations with respect. This includes recognising and managing actual, potential or perceived conflicts of interest.
The steps the entity will take generally include:
- making any mandatory reports to Police or Department of Communities and Justice (DCJ)
- conducting risk assessments and managing any real or perceived risk to children
- notifying the Office of the Children’s Guardian about the allegation within 7 business days
- planning and conducting an investigation into the allegation
- advising the employee, volunteer or contractor that a reportable allegation has been made against them (after receiving clearance from the Police or DCJ if they are involved)
- providing the Office of the Children’s Guardian with further detailed advice or update within 30 calendar days
- drafting a report including any findings, outcomes, recommendations and actions
- providing the report and supporting documents to the Office of the Children’s Guardian for review and closure (should no further action be required)
- storing the information in a secure and private location.
Fact sheet: Planning and conducting an investigation (PDF 912.4KB)
What does investigation planning involve?
An investigation plan is a record of what the entity will do to address the allegation, including the:
- objectives of the investigation and proposed time-frames
- a record of the allegations
- the risks which may arise from the investigation for the child, employee and entity, and how these risks will be managed
- information and evidence required to investigate the allegations
- the level of investigative activity required to obtain required information or evidence
- communication and collaboration with other stakeholders e.g. NSW Police
- where a decision has been made to/not to interview the child or young person or a witness and the reasons why
- when and how the subject of the allegation will be informed of the allegation, the investigation process, their rights, obligations and access to support, and possible outcomes of the investigation, taking account of information provided during a child protection response
- how any cultural issues or special needs of the relevant parties will be addressed during the investigation.
How will a reportable conduct investigation affect my work with children?
One of the first actions a head of a relevant entity should take when a reportable allegation is raised against an employee is to conduct a risk assessment and decide how to manage any identified risks. What this will look like will differ case by case, depending on a range of factors including the nature of the reportable allegation, the type of entity and its work with children and the employee’s role.
Risk management strategies can range from increased supervision or providing an employee direction, to paid or unpaid suspension, alternative duties, de-authorisation or dismissal. When deciding on the appropriate strategy, the head of the relevant entity will consider all the information at their disposal, including staff policies and procedures and codes of conduct.
It is not the role of the Children’s Guardian to make decisions about appropriate risk management. Our role is to make sure entities consider all relevant factors and that their decisions are properly supported and documented. Different entities may be governed by different industrial laws and policies about these actions and you are entitled to ask your organisation for more information if you need it.
When the Office of the Children’s Guardian receives information (including from notifications of reportable allegations) that indicates or suggests that a child or children may be at risk, the Children's Guardian can – and in some cases must – share that information in certain ways. If the information relates to the safety, welfare or wellbeing of a child, children or a class of children, the Children's Guardian may share the information with another body for the purpose of assessing risk or conducting an investigation – for example, to DCJ or to Police.
If the information may result in an assessment by the Working With Children Check (WWCC) Directorate that the employee poses a risk to children while an investigation or assessment is underway, relevant information will be made available to enable appropriate assessment of a WWCC application. However, the Office of the Children’s Guardian has robust information protection provisions in place to ensure that information is only shared where there is the legislative authority to do so and those legislative thresholds are met.
What are my responsibilities and rights?
The overarching principle in responding to any reportable allegation is to ensure the safety and wellbeing of any child, children or class of children who may be involved.
At the same time this objective is not met employees who are the subject of reportable allegations are not afforded procedural fairness.
Procedural fairness promotes fair and reasonable decision making. In general terms, procedural fairness will involve a decision-maker:
- informing employees of the allegations against them
- giving them a right to be heard
- maintaining appropriate confidentiality
- not having a personal interest in the outcome or any other real or perceived conflict of interest
- making findings only on the basis of well-reasoned probative evidence
- providing reasons for adverse findings
- making decisions in good faith and without bias
- considering any person whose interests will be affected by the decision.
Following the conclusion of an investigation, you should generally be told about the outcome, particularly if that outcome is unfavourable. However, you may not always receive the full detailed investigation findings and reasons as the information can include sensitive or private details.
Reviews and appeals
Any complaint about a relevant entity’s investigative process or decision should be made to the relevant entity in the first instance.
Any request for a review of finding should also first be made to the relevant entity. If after following this process you are still unsatisfied with the handling or outcome of the reportable allegation, you are able to make a complaint to the Office of the Children’s Guardian. The Children's Guardian considers each complaint on a case by case basis but in general terms, is only able to take action where there is evidence of wrong-doing on the part of the relevant entity.
For a review to be undertaken, the employee must provide additional information that was not considered during the investigation or identify an aspect of procedural fairness that was compromised during the investigation.
An employee who is the subject of an investigation led by the Office of the Children’s Guardian, or their review of an investigation, may also appeal to the NSW Civil and Administrative Tribunal about the finding or decision outcome of that review or investigation.
However, before proceeding the NSW Civil and Administrative Tribunal the matter will still need to be subject to investigation findings (as opposed to entity findings) by the Office of the Children’s Guardian.
Complaints about the handling of any investigation conducted by the Office of the Children’s Guardian may also be made by any person to the NSW Ombudsman.