Alert: Changes to the NSW Reportable Conduct Scheme to commence on 1 March, 2020

Has your organisation updated its processes to ensure you will be able to comply with changes to the New South Wales Reportable Conduct Scheme which come into effect on March 1, 2020?

Early Childhood Education and Care (ECEC) and Out of School Hours Care (OSHC) providers are not new to the scheme, however, there are changes which affect organisations already in the scheme which will require existing processes to be reviewed and updated. 

The changes also bring religious institutions into the scheme for the first time.

These changes are a result of the new Children’s Guardian Act 2019 which consolidates powers of the NSW Children’s Guardian into a single Act rather than being spread across multiple pieces of legislation. 

Amongst other things, it transfers the responsibility for administering the NSW Reportable Conduct Scheme and the Community Visitor scheme from the NSW Ombudsman to the NSW Children’s Guardian.

What should your organisation do?

Your organisation should review your existing (or develop) policies and procedures to ensure that your organisation:

•   Has a process to identify and classify behaviour which meets the definition of a ‘reportable conduct’ or ‘reportable convictions’
•   Has a clear understanding of the Act’s definition of an “employee” and has widened the scope of your process to include contractors and subcontractors where necessary
•   Can comply with the new timeframe for your Head of Entity (such as your CEO) to provide written notice to the Children’s Guardian (shortened to seven business days)
•   Has a process to carry out an investigation and provide an investigation report to the Children’s Guardian within calendar 30 days, or if the investigation is not complete, an interim report which satisfies the Children’s Guardian’s requirements
•   If your organisation is a Public Authority under The Act, that your process includes conduct which occurs at work for all staff/volunteers and both at work and outside work for staff/volunteers who hold a Working with Children Check for the purpose of their work

Under the Act, the Office of the Children’s Guardian have the power to audit your organisation’s systems to comply with the scheme. 

The Children’s Guardian may monitor your progress of an investigation, observe interviews, discuss and provide advice/guidance with the organisation or compel the organisation to provide specific documents and records to the Children’s Commissioner. 

The Office of the Children’s Guardian may also investigate a reportable allegation at your organisation itself or may investigate the way in which your organisation handled/responded to a reportable allegation.

Compliance with the scheme is not optional for organisations which meet the definition of a ‘Relevant Entity’ in the Act and additional organisations will continue to come into the scheme in the future. 

Financial penalties exist for failing to comply with the requirements of the scheme, which are outlined in the Act. However, penalties will not be enforced for the first three months after the new Act commences on March 1, 2020.

If you have an existing process to comply with the Reportable Conduct Scheme, it will likely cease to be compliant on March 1, 2020, and will require a review and update and your organisation will likely need to change the way you currently managed reportable allegations.

If your organisation currently has no process to comply with the scheme, either because you’re coming into the scheme for the first time on March 1, 2020 or due to oversight, your organisation must act immediately to address this.