Reportable Conduct – NSW

This factsheet will introduce you to the reportable conduct scheme in the NSW.

This is a scheme which obliges certain NSW-based employers who provide services to children, to report allegations made against their employees of child-related misconduct to the NSW Ombudsman.

Relevant legislation

• Ombudsman Act 1974 (NSW)

Who is covered?

All schools, child care centres, out of school hours’ services (among other types of employers/agencies) are covered by the Ombudsman Act 1974 (NSW).

What is reportable conduct?

Under the Ombudsman Act 1974 (NSW) ‘reportable conduct’ is:

• Any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including child pornography offences);
• Any assault, ill-treatment or neglect of a child; or
• Any behaviour that causes psychological harm to a child.

However, reportable conduct does not extend to:

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

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

Conduct of a class or kind exempted from being reportable conduct by the Ombudsman (this is at the Ombudsman’s discretion).

Whose conduct is reportable?

Reportable conduct is the conduct of:

• any employees of the organisation;
• any individual engaged by the agency to provide services to children including volunteers; and
• an individual who resides for 3 weeks or more on the same property as an authorised carer.

What level of knowledge do we have to have of the reportable conduct?

Any information that you have received which gives you reason to believe that reportable conduct by an employee of the agency has occurred is sufficient to create an obligation to report the information.

What do we have to notify the Ombudsman of?

The head of the agency must notify the Ombudsman of:

• any allegation of reportable conduct, or conviction of reportable conduct, against an employee of the agency when the head of the agency becomes aware;
• whether or not the agency proposes to take disciplinary action against the employee (and the reasons why it intends to take or not take any such action); and
• any written submissions made to the head of the agency concerning any such allegation or conviction that the employee concerned wished to have considered in determining what (if any) disciplinary or other action should be taken in relation to the employee.

When do we have to notify the Ombudsman?

As soon as practicable (and definitely within 30 days of the head of the agency becoming aware of the allegation or conviction).

Who do I report to?

The NSW Ombudsman – see the website here.

Do I have to investigate?

The legislation does not create a positive obligation to undertake an investigation. However, the Ombudsman must be notified of what, if any, disciplinary action will be taken against an employee. In most circumstances it is advised that employers conduct an investigation in order to prove or disprove allegations before disciplining employees.

For more information on investigating, see our Workplace Investigations fact sheet, or contact our Employment Law & Investigations Team for more information.

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