This is a scheme which obliges certain ACT-based employers who provide services to children, to report allegations made against their employees of child-related misconduct to the ACT Ombudsman.
Is my organisation covered by it?
All schools, child care services, and other education care service providers such as after school care (among other types of employers/agencies) are covered by the Ombudsman Act 1989 (ACT).
What is reportable conduct?
Under the Ombudsman Act 1989 (ACT) ‘reportable conduct’ is:
- conduct engaged in by an ‘employee’ of a designated entity (whether or not the conduct occurred in the course of employment) and that results in any of the following (regardless of whether the child gave consent):
- ill-treatment or neglect of the child;
- exposing or subjecting the child to:
- behaviour, or a circumstances, that psychologically harms the child, or
- misconduct of a sexual nature;
- the physical assault of a child.
- an offence against sections 166 or 167 of the Education and Care Service National Law (ACT) Act 2011 (These sections relate to using inappropriate discipline, and protection of children from harm and hazards).
However, reportable conduct does not include:
- conduct that is reasonable discipline, management or care of a child taking into account the characteristics of the child, and any relevant code of conduct or professional standard that at the time applied to the discipline, management or care of the child, or
- if the conduct that is trivial or negligible.
Whose conduct is reportable?
Reportable conduct is conduct of an ‘employee’, but an employee under the Act has very broad definition. It includes:
- Individuals engaged to provide services other than under a contract (such as out-of-home carers and volunteers).
- Individuals engaged by another organisation to provide services to children on behalf of the organisation (sub-contractors).
- Volunteers who have contact with children.
What matters must be reported to the Ombudsman?
The head of the entity must notify the Ombudsman of:
- Any reportable conduct allegation or any reportable conviction involving an employee of the entity.
- Whether or not the entity proposes to take any action against the employee based on the allegation or conviction, and the entity’s reasons for taking or not taking action.
- Any written submissions made by the employee to the head of the entity about the allegation or conviction that the employee asked the entity to take into account when deciding any action against the employee.
When do we have to notify the Ombudsman?
As soon as practicable (and definitely within 30 days of the head of the entity becoming aware of the allegation or conviction).
Who do I report to?
The ACT Ombudsman – see the website here.
Does an organisation 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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