Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actsinsert
Division 2.2A Reportable conduct
17D Definitions—div 2.2A
(1) In this division:
"designated entity" means any of the following:
(a) an administrative unit that deals with the safety, welfare or wellbeing of a particular child or class of children;
(b) a health service provider;
(c) a government school or a non-government school;
(d) a provider of an education and care service;
(e) a childcare service;
(f) an approved kinship and foster care organisation;
(g) an approved residential care organisation;
(h) any other entity prescribed by regulation.
"employee", of a designated entity—
(a) means a person who is—
(i) engaged to provide services to the entity under a contract of employment to which the entity and the person are parties; or
(ii) engaged by the entity to provide services to children other than under a contract mentioned in subparagraph (i); and
Examples—subpar (ii)
• volunteer
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(b) for an entity that, in accordance with the Children and Young People Act 2008
, authorises an out-of-home carer to exercise daily care responsibility or long-term care responsibility for a child—includes an adult who stays for at least 21 days at premises provided by the authorised out-of-home carer for the child to live.
"head", of a designated entity, means—
(a) for an administrative unit—the director-general of the administrative unit; or
(b) for any other designated entity—
(i) if a regulation prescribes the head of the entity—the prescribed head of the entity; or
(ii) in any other case—the chief executive officer, however described, of the entity.
"investigation", of a matter, means any inquiry or examination into the matter.
"investigation information" means information—
(a) obtained as a result of an investigation into a reportable allegation or reportable conviction conducted by the ombudsman or a designated entity; and
(b) about any of the following:
(i) the progress, conduct or findings of the investigation;
(ii) action taken as a result of the findings.
"out-of-home carer"—see the Children and Young People Act 2008
, dictionary.
"reportable allegation" means an express assertion that reportable conduct has happened.
"reportable conviction" , in relation to a person, means a conviction or finding of guilt—
(a) for an offence, under a territory law or a State or Commonwealth law, involving reportable conduct; and
(b) entered against the person before or after the commencement of the Reportable Conduct and Information Sharing Legislation Amendment Act 2016 , section 3.
(2) In this section:
"approved kinship and foster care organisation"—see the Children and Young People Act 2008
, dictionary.
"approved residential care organisation"—see the Children and Young People Act 2008
, dictionary.
"childcare service"—see the Children and Young People Act 2008
, dictionary.
"education and care service"—see the Education and Care Service National Law (ACT)
.
"government school"—see the Education Act 2004
, dictionary.
"health service provider"—see the Health Practitioner Regulation National Law (ACT)
"non-government school"—see the Education Act 2004
, dictionary.
17E Meaning of reportable conduct— div 2.2A
(1) In this division:
"reportable conduct" means conduct—
(a) engaged in by an employee of a designated entity, whether or not in the course of employment with the entity; and
(b) that results in any of the following, regardless of a child's consent:
(i) ill treatment or neglect of the child;
(ii) exposing or subjecting the child to—
(A) behaviour, or a circumstance, that psychologically harms the child; or
(B) misconduct of a sexual nature that does not form part of an offence mentioned in subparagraph (iii);
Example—subpar (ii) (B)
engaging in contact with a child as a preliminary step to obtaining the child's compliance in sexual activities
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act
, s 126 and s 132).
(iii) an offence against any of the following provisions of the Crimes Act 1900
for which the child is either present or a victim at the time of the conduct:
(A) part 2 (Offences against the person);
(B) part 3 (Sexual offences);
(C) part 4 (Female genital mutilation);
(D) part 5 (Sexual servitude);
(iv) an offence against either of the following provisions of the Education and Care Service National Law (ACT)
:
(A) section 166 (Offence to use inappropriate discipline);
(B) section 167 (Offence relating to protection of children from harm and hazards).
(2) However, "reportable conduct" does not include conduct—
(a) 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
(b) if the conduct is investigated and recorded as part of workplace procedure—that is trivial or negligible; or
(c) prescribed by regulation.
Examples—s (2)
1 touching a child to attract the child's attention, to guide a child, or to comfort a distressed child
2 a school teacher raising the teacher's voice to attract attention or restore order in a classroom
3 accidental conduct
(3) In this section:
"characteristics", of a child, includes the age, health and developmental stage of the child.
"conduct" means an act or an omission to do an act.
17F Ombudsman must monitor designated entity
(1) The ombudsman must monitor the practices and procedures of a designated entity for—
(a) the prevention of reportable conduct involving an employee of the entity; and
(b) dealing with reportable allegations or reportable convictions involving an employee of the entity.
(2) The ombudsman may, by written notice, require the head of a designated entity to provide information about the entity's practices and procedures for the purpose of assisting the ombudsman to carry out a function under this section.
(3) In this section:
"procedures" includes policies.
17G Designated entity must report to ombudsman
(1) The head of a designated entity must provide a written report to the ombudsman about—
(a) any reportable allegation or any reportable conviction involving an employee of the entity; and
(b) 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; and
(c) 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.
(2) A report under subsection (1) must be given to the ombudsman within 30 days after the day the head of the entity becomes aware of the allegation or conviction, or another period allowed by the ombudsman.
(3) The ombudsman may declare that subsection (1) does not apply in relation to any of the following (an exempt matter ):
(a) a reportable allegation or reportable conviction of a particular kind;
(b) a particular entity;
(c) a particular employee.
(4) The head of an entity is not required to provide a written report to the ombudsman under subsection (1) if the report would deal only with an exempt matter.
17H Disclosure of Information to and by ombudsman
(1) The head, or an employee, of a designated entity may disclose any information to the ombudsman that the head or employee believes on reasonable grounds reveals—
(a) reportable conduct involving an employee of the entity; or
(b) a reportable conviction against an employee of the entity.
(2) If the ombudsman receives information disclosed under subsection (1), the ombudsman may, if the ombudsman is satisfied on reasonable grounds that the information is relevant to the safety, health or wellbeing of a child or class of child, disclose the information to any of the following:
(a) the chief police officer;
(b) a law enforcement agency;
(c) the human rights commission;
(d) the director-general responsible for the Children and Young People Act 2008
, other than that Act, chapter 20;
(e) the director-general responsible for the Education and Care Service National Law (ACT)
;
(f) the chief executive officer of the ACT Teacher Quality Institute.
(3) In this section:
"ACT Teacher Quality Institute" means the institute established under the ACT Teacher Quality Institute Act 2010
"law enforcement agency"—
(a) see the Spent Convictions Act 2000
, dictionary; and
(b) includes an entity prescribed by regulation.
17I Ombudsman may monitor investigation
(1) The ombudsman may monitor an investigation carried out by a designated entity into a reportable allegation or reportable conviction involving an employee of the entity if satisfied on reasonable grounds that monitoring the investigation is in the public interest.
(2) For the purpose of monitoring an entity's investigation under this section, the ombudsman or an officer of the ombudsman may—
(a) attend any interview conducted by or on behalf of a designated entity in its investigation; and
(b) confer with any person carrying out the investigation about the nature, conduct or progress of the investigation; and
(c) request information relating to the investigation by written notice given to the head of the entity.
Note It is an offence to obstruct a territory public official (see Criminal Code
, s 361).
17J Designated entity must report outcome of investigation
(1) The head of a designated entity must, as soon as practicable after the end of an investigation by the entity into a reportable allegation or reportable conviction, provide the ombudsman with—
(a) a written report about—
(i) the results of the investigation; and
(ii) any action taken, or proposed to be taken, in relation to the reportable allegation or reportable conviction; and
(b) copies of all—
(i) statements taken in the course of the investigation; and
(ii) documents mentioned in the report; and
(c) any other information that the head of the entity considers relevant to the report.
(2) After receiving the report and other information, the ombudsman may by written notice given to the head of the entity request any additional information specified in the notice that the ombudsman considers relevant to determine whether—
(a) the reportable allegation or reportable conviction was properly investigated; and
(b) appropriate action was taken as a result of the investigation.
17K Ombudsman may conduct own investigation
(1) The ombudsman may, on the ombudsman's own initiative or in response to a complaint, conduct an investigation into—
(a) any reportable allegation or reportable conviction involving an employee of a designated entity; or
(b) the response of the designated entity to the reportable allegation or reportable conviction.
(2) If the ombudsman decides to conduct an investigation under this section, the ombudsman must give the head of the designated entity written notice stating—
(a) that the ombudsman intends carrying out an investigation under this section; and
(b) particulars of the investigation; and
(c) whether the ombudsman requires the entity not to commence, or to suspend, an investigation by the entity into a matter the ombudsman has decided to investigate.
(3) As soon as practicable after the ombudsman's investigation has ended, the ombudsman—
(a) must—
(i) give the head of the entity written notice that the investigation has ended; and
(ii) prepare a report setting out the ombudsman's findings; and
(b) may make recommendations to any person or body; and
(c) if an investigation by the entity was suspended by the ombudsman— may require the head of the entity to continue the investigation.
(4) An entity must, as far as practicable, comply with a requirement of the ombudsman under this section.
17L Investigation information may be disclosed to child, parent and carer
(1) The ombudsman or the head of a designated entity may disclose investigation information to any of the following:
(a) a child who is the subject of conduct that forms the basis of a reportable allegation or a reportable conviction into which an investigation was conducted by the ombudsman or the designated entity;
(b) a parent of the child;
(c) if the child has been placed with an out-of-home carer—the child's out-of-home carer.
(2) In this section:
"parent", of a child, means a person who has parental responsibility for the child.
"parental responsibility"—see the Children and Young People Act 2008
, dictionary.
17M Ombudsman may give information to commissioner for fair trading
The ombudsman may disclose the following information to the commissioner for fair trading if satisfied on reasonable grounds that the information is relevant to the exercise of the commissioner's functions under the Working with Vulnerable People (Background Checking) Act 2011
:
(a) information about an employee of a designated entity;
(b) information about an exemption under section 17G;
(c) information about reports of investigations into reportable allegations or reportable convictions carried out by the ombudsman or a designated entity.
17N Human rights commission may give information to ombudsman
(1) A member of the human rights commission may disclose information to the ombudsman if satisfied on reasonable grounds that the information is relevant to the exercise of the ombudsman's functions under this division.
(2) This section does not limit the information that the member may otherwise disclose to the ombudsman under this Act or any other territory law.
(3) In this section:
"member", of the human rights commission, means a member of the commission under the Human Rights Commission Act 2005
17O Protection of disclosures made under this division
(1) An authorisation to disclose information under this division—
(a) applies despite any territory law to the contrary; and
(b) does not limit the disclosure of investigation information that may be made under any other territory law.
(2) A person disclosing information under this division is not civilly liable for anything done or omitted to be done honestly and without recklessness—
(a) in complying with this division; or
(b) in the reasonable belief that the disclosure complied with this division.
17P Offence—false allegation
A person commits an offence if—
(a) the person makes an allegation against another person; and
(b) the person intends to cause the other person to be investigated under this division for—
(i) having engaged in reportable conduct; or
(ii) being the subject of a reportable conviction; and
(c) the person knows the allegation is false or misleading in a material particular.
Maximum penalty: 100 penalty units, imprisonment for 12 months or both.