The Reportable Conduct Scheme commenced on 1 July 2017. It requires certain individuals and organisations that exercise care, supervision and authority over children to comply with the following legal obligations:

• Systems – The head of an entity must have systems in place to report, investigate and respond to reportable allegations, and to prevent reportable conduct.[1]
• 3 day notification – Within 3 business days of becoming aware of a reportable allegation, the head of the entity must report the reportable allegation and other relevant information to the CCYP.[2]
• Investigation– The head of entity must investigate the reportable allegation and provide the CCYP with the details of the person who will be conducting the investigation.[3]
• 30 day report – Within 30 days, the head of the entity must provide more detailed information to the CCYP. This includes further details about the reportable allegation, any written submissions made by the subject of allegation, and any disciplinary action or other action that has been taken in response to the reportable allegation.[4]
• Final report – At the end of the investigation, the head of the entity must provide the CCYP with the findings of the investigation, the reasons for those findings, details of any disciplinary or other action that will be taken in response to those findings (if any), and the reasons for those actions.[5]

Reportable allegations consist of allegations that a person may have engaged in any of the following conduct:

• 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 committed 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.[6]

The Victorian Department of Families, Fairness and Housing recently completed a review of the Reportable Conduct Scheme and published its findings in March 2024.

In addition, the Commission for Children and Young People regularly publish information, guidance and analysis about the operation of the Reportable Conduct Scheme. The latest information can be found in its 2023-24 Annual Report.

These reports provide valuable information that can help us to improve the way in which we:

• supervise, support and care for children and young people
• identify and manage risks related to the safety and wellbeing of children and young people
• manage concerns, complaints or incidents that relate to the safety and wellbeing of children and young people; and
• comply with our obligations under the Reportable Conduct Scheme.

Here are some of the learnings…

Significant number of reportable allegations

Between 1 July 2017 and 30 June 2024, individuals and organisations that must comply with the Reportable Conduct Scheme made 8 122 notifications to the Commission for Children and Young People.

1 892 notifications were made in 2023-2024 alone. This represents a 30 per cent increase in the number of notifications made since the last financial year.

31 per cent of these allegations relate to adults working and volunteering in the out of home care sector.

30 per cent relate to adults in the education sector.

24 per cent relate to adults in the early childhood sector.

Approximately 30 per cent of reportable allegations that are reported to the Commission for Children and Young People are subsequently substantiated.[7]

Physical violence

37 per cent of all reportable allegations that are reported to the Commission for Children and Young People relate to physical violence committed against, with, or in the presence of a child.

These are the most common allegations made about adults working and volunteering in the child protection, out of home care, early childhood, disability, accommodation and youth justice sectors.[8]

Physical violence committed against a child may include intentionally or recklessly using physical force against a child that is capable of causing injury or harm to the child. This type of conduct can include hitting, punching, kicking, pushing or throwing something that strikes the child.

Physical violence against a child may also include intentionally or recklessly engaging in conduct that is capable of causing a child to think that physical force is about to be used against them. This conduct may include words and/or actions.[9]

Sexual misconduct

20 per cent of all reportable allegations that are reported to the Commission for Children and Young People relate to sexual misconduct committed against, with, or in the presence of a child.

70 per cent of these allegations relate to adults that work and volunteer in the education sector.[10]

Sexual misconduct committed against, with, or in the presence of a child is intended to include a cover broad range of conduct.

It includes conduct of a sexual nature such as inappropriate touching, inappropriate communication of a sexual nature, exposing a child to sexual activity, undressing in front of a child, or watching a child undress.

It may also include conduct towards a child that is overly personal and intimate but not overtly sexual in nature. This may include:

• communicating with the child outside the usual channels of communication
• having inappropriate conversations with the child about sexual partners
• massaging a child where this is not part of the person’s role.

This type of conduct may amount to sexual misconduct if the child or another reasonable person believes that the conduct was sexual in nature.

Sexual misconduct also includes grooming type conduct. This is where an adult uses manipulative or controlling behaviours to build a relationship and trust with the child, with the overall aim of engaging the child in sexual activity. During this grooming process, not all of the conduct may be overtly sexual in nature. Grooming type conduct may therefore also include some or all of the following conduct:

• initiating opportunities for unsupervised contact with the child
• spending inappropriate and special time with the child
• granting special favours to the child
• allowing the child to breach rules that apply to other children
• giving inappropriate gifts to the child e.g. alcohol or drugs
• asking the child not to tell anyone about their ‘special’ relationship or activities
• building relationships and trust with the child’s other caregivers such as the child’s family members and other people that work or volunteer at the organisation.[11]

In 2023-2024, 38 per cent of reportable allegations relating to sexual misconduct committed against, with, or in the presence of a child were substantiated.[12]

Historical conduct

8 per cent of all reportable allegations that are reported to the Commission for Children and Young People relate to historical conduct.

Historical allegations that amount to reportable allegations largely relate to adults from religious organisations and the education sector.

Most of these historical allegations relate to sexual offences or sexual misconduct committed against, with or in the presence of a child.[13]

An individual or organisation that must comply with the Reportable Conduct Scheme may be required to report and investigate historical allegations even though:

• the alleged conduct occurred before the Reportable Conduct Scheme commenced
• the alleged conduct occurred before the adult was employed or engaged by the individual or organisation
• the alleged victim, witnesses, and/or other relevant information and documentation may not be available.

Family violence

The Reportable Conduct Scheme includes alleged conduct that may have occurred outside the workplace. This includes allegations that an adult has engaged in family violence.

Family violence that may also amount to a reportable allegation includes any of the following conduct:

• an adult family member physically assaulting a child or threatening to do so
• a child witnessing an adult family member physically assault another family member
• a child overhearing an adult family member making threats of physical abuse to another family member
• an adult family member sexually assaulting a child
• a child witnessing an adult family member sexually assault another family member
• an adult family member tormenting, intimidating, or harassing a child
• any other conduct by an adult family member that controls or dominates the child or causes them to fear for their safety or wellbeing, the safety and wellbeing of another family member, or any other person.[14]

It is important that this alleged conduct is also covered by the Reportable Conduct Scheme because it may point to risks that the adult may engage in similar behaviour towards children, or in the presence of children, associated with the organisation.

These reportable conduct investigations are complex and need to be managed carefully and sensitively for the following reasons:

• The investigation process can create additional risks to the safety and wellbeing of the affected children and other family members who may be contacted during the course of the investigation.
• The affected children, the subject of allegation and other family members may be experiencing other difficulties and challenges that may be causing ongoing distress and anxiety. These may include separation and divorce, homelessness, unemployment, financial distress, health issues, disabilities, mental illness or psychological distress.
• The subject of allegation and the affected family members may be subject to other investigations such as:
  • a criminal investigation conducted by the Victoria Police; and/or
  • an investigation into a child that may be in need protection by the Department of Families, Fairness and Housing (Child Protection).
• The individual or organisation that must comply with the Reportable Conduct Scheme may have limited access to information about the affected children, the alleged victims and other witnesses. This can impede the investigator’s ability to speak to important witnesses and to obtain relevant information about the alleged conduct.
• It can also be difficult for the investigator to gain the trust and confidence of the affected children, the alleged victims and other witnesses that may have no connection with the individual or organisation that must comply with the Reportable Conduct Scheme.[15]

More than just employees, contractors and volunteers

The Reportable Conduct Scheme is not just about the alleged conduct of an employee, contractor or volunteer.

Since 1 July 2024, the Reportable Conduct Scheme applies to all of the following people that are associated with an individual or organisation that must comply with the Reportable Conduct Scheme:

• employees, volunteers and contractors
• office holders
• people who meet the following criteria:
  • they are a worker or volunteer for an organisation
  • their employer supplies them to an individual or organisation that must comply with the Reportable Conduct Scheme
  • they perform work under the direction, supervision or control of the individual or organisation that is covered by the Reportable Conduct Scheme
• secondees who under the direction, supervision or control of the individual or organisation that must comply with the Reportable Conduct Scheme
• a director or officeholder of another organisation that is engaged by the individual or organisation that must comply with the Reportable Conduct Scheme
• ministers or religion, religious leaders and employees of religious bodies
• foster carers approved by the provider of an out of home care service with whom a child is or has been placed in out of home care
• family member or other person of significance to a child with whom the child is or has been placed in out of home care.[16]

Any person can report a reportable allegation

Any person can report a reportable allegation to the Commission for Children and Young People.[17]

The Commission for Children and Young People has received 1 672 reports from members of the public since 1 July 2017. 520 of these reports were made in 2023-24 alone.[18]

Reasonable belief

The Reportable Conduct Scheme requires the head of an entity that is covered by the Reportable Conduct Scheme to report to the Commission for Children and Young People when they become aware of a reportable allegation about an employee, contractor, volunteer or worker.

In understanding this obligation, it is important to note the following:

• It is enough if any person forms a reasonable belief that the employee, contractor, volunteer or worker has committed reportable conduct, or misconduct that may involve reportable conduct. This means that the head of entity is not required to also form a reasonable belief before notifying the Commission for Children and Young People of the reportable allegation.
• A reasonable belief does not mean that the person must have proof. It is enough if the allegation is based on objective information that is more than rumour or speculation. This means that the head of entity does not need to conduct a preliminary investigation to try and substantiate the allegation before reporting it to the Commission for Children and Young People.[19]

Children and young people should participate in reportable conduct investigations

During the review of the Reportable Conduct Scheme, the Department of Families, Fairness and Housing found that we do not sufficiently engage children and young people and involve them in the reportable conduct investigation.

The Commission for Children and Young People explained that:

…excluding children and young people from investigations without good reason can send a damaging message to them that their voice is not valued. It can contribute to them not feeling listened to or heard. It also potentially deprives investigators of valuable evidence relevant to deciding whether an adult has engaged in child related misconduct or abuse.[20]

We all need to make the reportable conduct investigation process more inclusive for children and young people.

We also need to adequately support children and young people to participate in reportable conduct investigations as alleged victims or witnesses.[21]

Procedural fairness

Procedural fairness is an essential part of a reportable conduct investigation. This includes all of the following requirements:

• The investigator and the decision maker must not have an actual, potential or perceived conflict of interest.
• The subject of allegation is entitled to have a support person, union representative or legal representative to support them throughout the investigation process.
• The subject of allegation must be provided with the following information:
  • the nature and scope of the allegations
  • a summary of credible, relevant and significant evidence
  • a summary of any other adverse material that is credible, relevant and significant and may impact on the findings to be made.
• The investigator must provide the subject of allegation with a reasonable opportunity to respond to the allegations, the evidence, and any other adverse material before the investigation is finalised and a decision is made.
• The investigator must consider any information or documentation that the subject of allegation has provided before findings and decisions are made.
• The findings must be based on credible, relevant and significant evidence.[22]

Overlap with other investigations and regulatory schemes

Often, a reportable conduct investigation does not take place in isolation.

For example:

• The alleged conduct may also amount to a criminal offence. This means that the alleged conduct must be reported to the Victoria Police. It also means that any subsequent criminal investigation and criminal proceeding takes precedence. It also means that the reportable conduct investigation cannot commence until the police provide specific permission for this investigation to commence.[23]
• The alleged conduct may also indicate that a child may be in need of protection. This means that the Department of Families, Fairness and Housing (Child Protection) may also investigate the alleged conduct to determine whether it needs to take action to support the family or intervene to protect the child.
• The alleged conduct may also indicate that the person may no longer be suitable to be registered and practice their profession. For example, the Victorian Institute of Teaching registers and regulates teachers and early childhood teachers in Victoria. It has the power to conduct investigations into a teacher’s conduct, and to suspend or cancel a teacher’s registration in certain circumstances.
• The alleged conduct may also amount to a reportable incident that needs to be reported to a regulatory and/or funding body and investigated. For example, organisations funded by the Department of Families, Fairness and Housing are required to comply with the Client Incident Management System. This requires the individual or organisation to report (and potentially investigate) incidents such as the following:
  • The intentional or reckless use of physical force against a client or behaviour that causes a client to believe physical force will be used against them.
  • Actual, attempted or alleged conduct of a sexual nature against, with or in the presence of a client without consent, or by force, intimidation or coercion.
  • The client has been sexually exploited or groomed for sexual activity.
  • The client has been rejected, isolated, intimidated or frightened to the extent that their behaviour is disturbed, or the conduct has seriously impacted their emotional or psychological wellbeing.
  • The client witnessed, heard or was otherwise exposed to an event, circumstances or action that caused anxiety, fear or helplessness.
  • The client’s whereabouts is unknown, or their absence has not been approved.
  • The client has self-harmed or attempted suicide.
  • The organisation has incorrectly administered medication to the client.[24]
• The alleged conduct may also amount to misconduct, breach of employment contract, breach of a code of conduct, or breach of an organisational policy or procedure. An employer may therefore also need to conduct an investigation to determine whether any disciplinary or remedial action needs to be taken against the employee.

This means that reportable conduct investigations usually require careful planning, consideration and co-ordination with other investigations and processes. Some relevant considerations include the following:

• the emotional and psychological wellbeing of each child, victim, witness and subject of allegation and the potential impact of multiple investigations and processes
• the number of times that alleged victims, witnesses and subjects of allegation may potentially need to be interviewed in relation to the alleged conduct, and how this can be minimised as much as possible
• whether there is an investigation that needs to take precedence
• whether the investigations can be conducted concurrently or whether they need to be conducted consecutively
• whether the investigations can be conducted jointly
• the evidence that needs to be gathered to support each investigation, and whether there is any overlap in the evidence that may be required
• whether there is any investigative process that may compromise, impede, or interfere with other investigations, or a particular witness or piece of evidence.

Children and young people need more information about the Reportable Conduct Scheme

During the review of the Reportable Conduct Scheme, many children and young people reported they were not aware of the Reportable Conduct Scheme. They also stated that they would feel more comfortable and safer to report allegations that may amount to reportable allegations if they knew:

• what they should expect from employees
• how to report an allegation
• who they could report to
• what to expect when they report an allegation
• who would be told about their report
• what to expect during the investigation process
• how they would be involved in the investigation process
• how they would be protected from retribution or other adverse conduct.[25]

We are all responsible for educating children and young people about these matters, and empowering them to report allegations that may amount to reportable allegations.

More education for employees

During the review of the Reportable Conduct Scheme, employees also referred to a range of barriers that prevent them from reporting allegations that may amount to reportable allegations. These include the following:

• a lack of clarity about what reportable conduct is
• concerns about retribution or social isolation
• a desire to avoid being involved in a lengthy reporting and investigation process.[26]

We must all do more to support employees to understand the Reportable Conduct Scheme and to empower and encourage them to participate in the process.

 

Please feel free to contact Safety Quality & Care Legal Services to discuss how we can use these learnings to support you in your safety, quality and care journey.

 

Elena Totino

Founder, Director & Principal Lawyer

Safety Quality & Care Legal Services

 

January 2025

 

[1] Child Wellbeing and Safety Act 2005 (Vic), s. 16K(1)

[2] Child Wellbeing and Safety Act 2005 (Vic), s. 16M(1)(a)

[3] Child Wellbeing and Safety Act 2005 (Vic), s. 16N(1)

[4] Child Wellbeing and Safety Act 2005 (Vic), s. 16M(1)(b)

[5] Child Wellbeing and Safety Act 2005 (Vic), s. 16N(3)

[6] Child Wellbeing and Safety Act 2005 (Vic), s. 3

[7] Commission for Children and Young People, Annual Report 2023-24 Commission for Children and Young People, Melbourne, October 2024, pp. 98-99, 102-103, 119

[8] Commission for Children and Young People, Annual Report 2023-24 Commission for Children and Young People, Melbourne, October 2024, p. 104

[9] Commission for Children and Young People, Information Sheet 10 – Physical Violence under the Reportable Conduct Scheme, May 2018

[10] Commission for Children and Young People, Annual Report 2023-24 Commission for Children and Young People, Melbourne, October 2024, pp. 98, 104, 108-109

[11] Commission for Children and Young People, Information Sheet 9 – Sexual misconduct under the Reportable Conduct Scheme, November 2022

[12] Commission for Children and Young People, Annual Report 2023-24 Commission for Children and Young People, Melbourne, October 2024, p. 98

[13] Commission for Children and Young People, Annual Report 2023-24 Commission for Children and Young People, Melbourne, October 2024, pp. 123-124

[14] Family Violence Protection Act 2008 (Vic), ss. 5, 7

[15] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, pp. 59-63

[16] Child Wellbeing and Safety Act 2005 (Vic), s. 3

[17] Child Wellbeing and Safety Act 2005 (Vic), s. 16L

[18] Commission for Children and Young People, Annual Report 2023-24 Commission for Children and Young People, Melbourne, October 2024, p. 100

[19] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, pp. 69-70

[20] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, p. 83 citing the Commission for Children and Young People’s Submission to the Department of Families, Fairness and Housing, pp. 21-22

[21] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, p. 81, 84

[22] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, pp. 82-83

[23] Child Wellbeing and Safety Act 2005 9Vic), s. 16U

[24] State of Victoria, Department of Families, Fairness and Housing, Client Information Management System – Policy and Guidance, December 2024, Appendix 1

[25] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, p. 68

[26] State of Victoria, Department of Families, Fairness and Housing, Review of Victoria’s Reportable Conduct Scheme: Final Report, March 2024, p. 72