School law expert, Paul O’Halloran, a partner at law firm Colin Biggers & Paisley in Melbourne, said the laws “encapsulate three important duties which are now legally imposed upon schools, to identify, investigate and report on child safety risks posed by employees”.
O’Halloran says the Victorian government has made it “abundantly clear that children have a right to be safe and protected in schools, so now the laws have commenced and are in force, non-complying entities should ultimately expect a zero tolerance approach from the regulator”.
Identification of inappropriate behaviours
O’Halloran says the reportable conduct obligations will be invoked if a “reasonable belief” can be formed that reportable conduct has been engaged in by an employee towards a child, in areas including sexual offences; sexual misconduct involving children; significant violence or emotional or psychological harm towards a child; or significant neglect of a child.
O’Halloran says the phrase “reasonable belief” is not defined in the legislation but “guidance from other jurisdictions suggests a reasonable belief is more than suspicion, speculation or rumour”. He said the legislation imposes “an objective test that requires asking ‘would a reasonable person in the circumstances believe wrongdoing has occurred?” and then take positive steps to address it.
Broad scope
Complaints about child safety risks in schools or other institutions dealing with children can be made by anyone, including students or parents. Schools will need to identify, investigate and report all allegations of reportable conduct allegedly committed by an “employee”. The term includes direct employees of schools, people engaged to provide services, including as a volunteer, contractor, office holder or officer, whether or not the person provides services to children.
Interestingly, O’Halloran indicates the laws extend to the conduct of priests who run many of the Victorian Catholic primary schools. “The legislation defines employees to include a minister of religion, capturing a large number of Catholic schools in Victoria under the control of a local parish or canonical administrators”.
Notification obligations
O’Halloran says there are strict reporting obligations if a school becomes aware of a reportable allegation against an employee, which require notifying the Commission for Children and Young Persons in writing within three business days after becoming aware of the reportable allegation.
Schools will then be required to appoint an appropriately qualified investigator to undertake an independent investigation and make determinations on the conduct, notifying the Commission of the outcome and any proposed disciplinary action within 30 days.
O’Halloran said the legislation is clearly attempting to control the “insidious historical practice of moving offenders around so as not to cause reputational harm”. Instead, “the new laws empower the Commission to obtain a copy of the school’s investigation report and enquire into the appropriateness of any disciplinary action”.
Serious consequences
It is a criminal offence (a fine of $1,554.60) for an organisation to fail without reasonable excuse, to comply with its obligations under the new scheme. While likely to be a cost impost on schools, O’Halloran says the reputational and legal risks of any school contravening the laws could be dire, including in worst-case scenario, de-registration. He encourages schools, or governing bodies that run schools, to seek early advice about what conduct is likely to fall within the scope of reportable conduct, choose qualified investigators with experience and knowledge to investigate allegations and seek legal advice about disciplinary action if allegations are ultimately substantiated.
Non-government schools seeking advice on the new Victorian reportable conduct laws can contact Paul O’Halloran, Partner at Colin Biggers & Paisley on (03) 8624 2010.