Workplace child protection

• Ombudsman’s role in relation to child protection in the workplace
• Reportable allegations and convictions
• What are the responsibilities of heads of agencies?
• What happens after the Ombudsman receives a notification?
• What happens at the end of an investigation?
• Audits of agencies’ child protection systems

 Ombudsman's role in relation to child protection in the workplace

Part 3A of the Ombudsman Act 1974 requires the Ombudsman to keep under scrutiny the systems that government and certain non-government agencies in NSW have for preventing reportable conduct and handling reportable allegations and convictions involving their employees.

‘Designated agencies’ must notify us of all reportable allegations and convictions that arise inside or outside the employee’s work.

Designated agencies include:

• Department of Community Services
• Department of Education and Training
• Department of Health (including area health services)
• Department of Juvenile Justice
• Department of Corrective Services
• NSW Sport and Recreation
• Department of Disability, Ageing and Home Care
• non-government schools
• child care centres
• agencies providing substitute residential care to children.

‘Other public authorities’ are only required to notify reportable allegations or convictions that arise in the course of the employee’s work.

We have to decide whether an investigation into a reportable allegation or conviction against an employee of a designated agency that has been notified to us has been properly conducted, and whether appropriate action was taken as a result of the investigation.

 Reportable allegations and convictions

Section 25A(1) of the Ombudsman Act defines 'reportable conduct' as:

• any sexual offence or sexual misconduct committed against, with or in the presence of a child - including a child pornography offence
• any assault, ill-treatment or neglect of a child
• any behaviour that causes psychological harm to a child – even if the child consented to the behaviour.

Section 25A(1) of the Act also states that reportable conduct does not extend to:

(a) 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

(b) 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

(c) conduct of a class or kind exempted from being reportable conduct by the Ombudsman under section 25CA.

Some examples of conduct that would not constitute reportable conduct include touching a child to attract their attention, guide them or comfort them, a school teacher raising their voice to attract attention or restore order in the classroom, or conduct that is established to be accidental.

Our publication 'Child protection in the workplace: responding to allegations against employees' provides further guidance about this definition.

If you believe on reasonable grounds that a child or young person is at risk of harm, you may also notify the Community Services (CS) so that appropriate care and protection arrangements can be made for the child. Please contact CS or refer to the 'NSW interagency guidelines for child protection intervention' for more information.

Even though CS, the police or a joint investigation response team may be investigating an allegation against an employee of an agency, the head of the agency is still required to notify us of the allegation.

 What are the responsibilities of heads of agencies?

The head of each designated agency or public authority is required to set up systems within their organisation to ensure that they are advised of any reportable allegations or convictions against their employees.

Once the head of an agency has been advised of a reportable allegation or conviction against an employee, they must notify us as soon as possible. This must be done no later than thirty days after them being made aware of the allegation or conviction.

In the notification, the agency must include:

• details of the allegation or conviction
• advice as to whether or not they propose to take disciplinary or other action in relation to the employee, and the reasons for taking or not taking any action
• any written submissions made to them by the employee about what action should be taken against them.

What happens after the Ombudsman receives a notification?

The Ombudsman can monitor the progress of an investigation conducted by an agency, or an investigation conducted on behalf of the agency, concerning a reportable allegation or conviction against an employee. We may observe interviews conducted by or on behalf of the agency, and may confer with the people conducting the investigation about its conduct and progress.

If asked, agencies must provide us with any information relating to the investigation. In some circumstances we are able to pass information on to other agencies, such as the police or the Department of community Services.

We can conduct a direct investigation into any reportable allegation or conviction against an employee of a designated agency or other public authority, regardless of whether it has been notified by the head of the agency.

We can also directly investigate the handling of, or response to, a reportable allegation or conviction. If we decide to investigate an allegation or conviction against an employee, we may require the agency to defer any investigation.

When we conclude the investigation, or ask the agency to resume the investigation, we will provide them with recommendations for action as well as any necessary information relating to these recommendations.

 What happens at the end of an investigation?

Once the head of an agency is satisfied that the investigation into the allegations against the employee has been concluded, they must as soon as practicable provide us with:

• any report prepared by or for them relating to the investigation, as well as copies of all the statements and other documents that form the basis of that report
• any comments they may want to make about the report
• advice as to what action has been taken or is proposed to be taken in relation to the reportable allegation or conviction under investigation.

After receiving this material, we may ask for more information either from the head of agency or the person who carried out the investigation for them.

After considering the material provided by the agency, we will decide whether the reportable allegation or conviction was properly investigated and if appropriate action was taken as a result of the investigation.

 Audits of agencies’ child protection systems

The Ombudsman is also required to keep under scrutiny the systems that agencies have for preventing reportable conduct by employees, and handling and responding to reportable allegations or convictions involving those employees. One of the ways we do this is by auditing their child protection systems.

The purpose of an audit is to assist an agency to improve their systems and practices for providing safe environments for children in their care. It is also to identify and promote good practice across agencies. We do this by assessing the policies and practices within an agency and providing them with direct advice about best practice and areas for improvement.

When auditing the child protection systems in an agency, we ask the head of the agency to provide us with information about those systems and how they operate. We may review the agency’s documentation - eg code of conduct, policies and procedures - and/or visit the agency and speak with their staff. We then provide the head of the agency with feedback about our findings, highlighting areas of good practice as well as any areas that could be improved.