Posted on August 10, 2018 by

Local government child protection compliance obligations

On 23 June 2018 the NSW Government responded to the Royal Commission into Institutional Responses to Child Sex Abuse.  The responses announced include committing to applying child safe standards to make institutions safer for children.

Councils provide services for children in their local communities as part of their functions under the Local Government Act 1993 such as childcare centres, libraries, sporting, cultural and recreational centres and school holiday programs. Councils providing such services for children have compliance obligations under child protection legislation in NSW.

We previously blogged that the Auditor General recommended that councils can improve monitoring compliance with key laws and regulations by adopting a legislative compliance framework, register and policy. This blog concerns compliance with laws and training that may help to make councils’ services safer for children.

Councils providing services for children have compliance obligations under the Children and Young Persons (Care and Protection) Act 1998 (NSW), the Child Protection (Working with Children) Act 2012(NSW) and the Ombudsman Act 1974 (NSW).

Councils’ compliance obligations under the Children and Young Persons (Care and Protection) Act 1998 include reporting to the Secretary of the Department of Family and Community Services the name of any child who is suspected, on reasonable grounds, to be at risk of significant harm (s 27 Children and Young Persons (Care and Protection) Act 1998).

Councils’ compliance obligations under the Child Protection (Working with Children) Act 2012 include ensuring that employees, contractors and volunteers engaged in child-related work hold current working with children clearances. Child-related work is work that involves direct contact with children in the course of providing programs or services primarily for children; child care services and work at sporting, cultural or entertainment venues where services, activities and programs are provided on a commercial basis primarily for children (s 6 Child Protection (Working with Children) Act 2012 and cl 7, 9 and 11 Child Protection (working with Children) Regulation 2013).

Councils are also required by the Ombudsman Act 1974 (NSW) to notify the NSW Ombudsman about a ‘reportable allegation’ or a ‘reportable conviction’ against an ’employee’ that arises in the course of an employee’s employment with the council (ss 5, 25A, 25C and 25I of the Ombudsman Act 1974).

The NSW Ombudsman received 4 notifications by councils in 2016-2017 according to the Ombudsman’s annual report for 2016-2017.

An ’employee’ is any person who is employed by a council whether or not they are employed in connection with any work or activities of the council that relate to children as well as any individual engaged to provide services to children (including volunteers) (s25A Ombudsman Act 1974).

The general manager of a council is responsible for notifying the Ombudsman within 30 days of becoming aware of a ‘reportable allegation’ or ‘reportable conviction’ (ss 25A, 25C and 25I Ombudsman Act). The general manager may disclose to the Ombudsman any information that gives the general manager reason to believe that ‘reportable conduct’ by an employee has occurred (s 25D Ombudsman Act).

A ‘reportable allegation’ is defined to mean an allegation of ‘reportable conduct’ against a person or an allegation of misconduct that may involve ‘reportable conduct’.

‘Reportable conduct’ is defined as:

‘(a) any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence or an offence involving child abuse material (within the meaning of Division 15A of Part 3 of the Crimes Act 1900)), or

(b)  any assault, ill-treatment or neglect of a child, or

(c)  any behaviour that causes psychological harm to a child’

‘Reportable conduct’ does not extend to:

‘(a)  conduct that is reasonable for the purposes of the discipline, management or care of children, having regard to the age, maturity, health or other characteristics of the children and to any relevant codes of conduct or professional standards, or

(b)  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 employment procedures, or

(c)  conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA.’

A ‘reportable conviction’ is defined to mean a conviction (including a finding of guilt without the court proceeding to a conviction), in NSW or elsewhere, of an offence involving ‘reportable conduct’ (s 25A Ombudsman Act).

Importantly, a ‘reportable allegation’ or a ‘reportable conviction’ extends to an allegation or conviction in respect of a matter occurring before 7 May 1999 (the date of commencement of the provision)(s 25A(3) Ombudsman Act). Matters occurring before 7 May 1999 may come to light as a result of the Australian Government’s National Redress Scheme into Institutional Responses to Child Sexual Abuse and if the NSW Government implements proposals to remove legal barriers from the civil litigation system to make it easier for survivors of institutional child abuse in the future to sue responsible institutions.

The general manager must also notify the Ombudsman whether the council intends to take any disciplinary or other action against the employee and any written submissions made by the employee (s 25C Ombudsman Act).

Failure to notify the Ombudsman or to properly respond to the reportable allegation or conviction may result in an investigation and report by the Ombudsman under s 26 of the Ombudsman Act 1974 and reputational damage to the council.

The general manager of a council must make arrangements to require employees of council to notify the general manager of any ‘reportable allegation’ or ‘reportable conviction’ of which they become aware (s 25C(3) Ombudsman Act).

Councils’ legislative compliance registers should include these obligations and assign responsibility for compliance. The NSW Ombudsman offers training on responding to child protection allegations.