Explanatory note
This explanatory note relates to this Bill as introduced into Parliament.

Overview of Bill

The object of this Bill is to improve the operation of the following child
protection legislation by clarifying the reportable conduct of employees under
that legislation:

(a) Part 3A of the Ombudsman Act 1974 (which relates to notification to and
monitoring by the Ombudsman of disciplinary proceedings against
employees of government and certain non-government agencies),

(b) Part 7 of the Commission for Children and Young People Act 1998 (which
relates to employment screening for child-related employment).

The Bill gives effect to the recommendations of a Government review into the
impact of that legislation, particularly in connection with the work of teachers.

Outline of provisions

Clause 1 sets out the name (also called the short title) of the proposed Act.

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Explanatory note page 2

Child Protection Legislation Amendment Bill 2003
Explanatory note
Clause 2 provides for the commencement of the proposed Act on a day or days
to be appointed by proclamation.

Clause 3 is a formal provision that gives effect to the amendments to the
Ombudsman Act 1974 and the Commission for Children and Young People Act
1998 set out in Schedules 1 and 2.

Schedule 1 Amendment of Ombudsman Act 1974
Part 3A of the Ombudsman Act 1974 provides for the notification to the
Ombudsman of “child abuse allegations” and “child abuse convictions” against
employees of designated government or non-government agencies that have
children in their care and for the monitoring by the Ombudsman of
investigations and the results of investigations into those matters.

Schedule 1 [1] and [2] replace the definition of child abuse and related
definitions based on child abuse with a definition of reportable conduct and
related definitions based on reportable conduct. The replacement definitions
maintain the principal elements of the existing definitions, namely, any childrelated
sexual offences or misconduct, any assault, ill-treatment or neglect of a
child and any behaviour that causes psychological harm to a child. However,
specific provision is made:

(a) to exclude 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, and

(b) to confirm the authority of the Ombudsman to exempt any class or kind of
conduct from being reportable conduct.

Examples of conduct that would not constitute reportable conduct include
(without limitation) touching a child in order to attract a child’s attention, to
guide a child or to comfort a distressed child; a school teacher raising his or her
voice in order to attract attention or to restore order in the classroom; and
conduct that is established to be accidental.

Schedule 1 [3] and [4] make consequential amendments.

Schedule 1 [5] and [6] restate, and extend to all the relevant provisions of Part
3A of the Principal Act, the authority of the Ombudsman to exempt any class or
kind of conduct from being reportable conduct.

Schedule 1 [7] authorises the making of savings and transitional regulations
consequent on the enactment of the proposed Act.

Child Protection Legislation Amendment Bill 2003
Explanatory note
Schedule 1 [8] provides that the amendments extend to matters arising before
the commencement of the amendments, but not so as to affect action taken with
respect to a matter notified to the Ombudsman before that commencement.

Schedule 2 Amendment of Commission for Children
and Young People Act 1998
Part 7 of the Commission for Children and Young People Act 1998 provides for
employment screening for child-related employment administered by the
Commission and other agencies. As part of that process, the Commission is
required to be notified of relevant criminal records and disciplinary proceedings
involving child abuse, sexual misconduct and acts of violence by employees. In
the case of disciplinary proceedings, the regulations under that Act have limited
notifiable sexual misconduct to conduct against, with or in the presence of
children.

Schedule 2 [1]–[3] make similar amendments to those proposed to the
Ombudsman Act 1974 with respect to replacing the definition of child abuse
with a definition of reportable conduct in order to promote consistency in
dealing with these matters. In this case the exemption of conduct of a class or
kind from reportable conduct will be effected by the guidelines for employment
screening under section 35 of the Principal Act. The amendments do not affect
the current obligation with respect to the notification of criminal records relating
to adult sexual offences for the purposes of employment screening.

Schedule 2 [4]–[6] make consequential changes to the current definition of
relevant disciplinary proceedings and replace that expression with relevant
employment proceedings.

Schedule 2 [7] alters the duties of employers to report on completed relevant
employment proceedings by removing the obligation to report a finding that
reportable conduct, or an act of violence, did not occur.

Schedule 2 [8] authorises the making of savings and transitional regulations
consequent on the enactment of the proposed Act.

Schedule 2 [9] provides that the amendments extend to matters arising before
the commencement of the amendments, but not so as to affect action taken by
the Commission or employers (or any employment screening) in relation to
matters notified to the Commission before that commencement.

Note: If this Bill is not modified, these Explanatory Notes would reflect the Bill as passed in the House. If the Bill has been amended by Committee, these Explanatory Notes may not necessarily reflect the Bill as passed.

 

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