Amendments to the Education and Care Services National Law have introduced new provisions to ensure children are not subjected to inappropriate conduct. Our team has updated key policies and resources to incorporate these provisions so you can be confident that your Service aligns with both regulatory requirements and best practice standards. Log in now to explore the updated policies and new resources.
Section 166A of the Education and Care Services National Law Act 2010 and section 5AA of the Children (Education and Care Services) National Law (NSW) 2010 are now in effect.
KEY REGULATORY CHANGES:
- 5AA [NSW only] and S. 166A [National] introduce new obligations for providers, staff, educators and volunteers, strengthening and clarifying expectations around behaviour and conduct to promote safe and respectful interactions with children.
Inappropriate Conduct is defined as:
‘conduct a reasonable person would consider to be inappropriate in an education and care service’
It is now a legal offence for any child to be subjected to inappropriate conduct within an Education and Care Service, with significant penalties enforceable against providers, nominated supervisors, educators, and volunteers. Providers must ensure that all educators, staff and volunteers understand their obligations as mandatory reporters, including how to recognise, prevent, and respond to inappropriate conduct.
Determining inappropriate conduct:
Amendments to the National Law provide guidance on how to determine whether behaviour is considered inappropriate. Factors to consider include:
- whether the conduct aligns with expected practice in the delivery of education and care, including behaviour guidance, supervision, personal care routines, and interactions with children
- the child’s age, stage of development, abilities and individual needs, including cultural and family context
- whether the conduct is likely to cause emotional, psychological or physical harm, distress, injury or discomfort to a child
- the intention and purpose of the conduct, including whether it could reasonably be perceived as sexualised, aggressive, violent, exploitative, demeaning or unsafe in the context in which it occurs.
The child’s consent or perceived consent, as well as any relationship to the offender, must never be considered when determining whether the conduct is inappropriate.
Forms of Inappropriate Conduct
Inappropriate conduct may occur:
- directly in person, including actions directed at, or occurring around, a child that the child witnesses
- through verbal or electronic communication, including messages, calls, livestreams, or any communication occurring in real or near-real time
- through digital capture, such as images, videos or sharing images/videos without authorisation
- through a pattern of behaviour over time, including grooming behaviours, repeated boundary crossing, or escalating interactions that create risk to a child’s safety or wellbeing.
Inappropriate conduct may include:
- a single act or incident
- repeated acts or incidents occurring over a period of time
- behaviour that forms part of an ongoing pattern.
Examples of Inappropriate Conduct:
- behaviour that breaches professional boundaries
- inappropriate physical conduct
- inappropriate verbal or emotional conduct
- breaches in supervision or duty of care
- misuse of discipline or behaviour guidance
- inappropriate conduct involving technology
Inappropriate conduct prevention and awareness:
Providers and management can foster a child safe culture by implementing clear procedures to prevent inappropriate conduct. This includes regularly reviewing child safe policies and procedures, providing inductions and training to help staff and volunteers recognise and report inappropriate conduct and ensuring all staff, educators, volunteers, students, and visitors follow professional and child safe practices.
Reporting Obligations:
All staff, educators, management and volunteers have a responsibility to report any concerns, incidents witnessed, suspicions, allegations or disclosures of inappropriate conduct to the approved provider and regulatory authority within 24 hours.
Additional reports may need to be made to other agencies, as required.
Responding to Concerns:
Investigations will be conducted by the Service, provided they do not interfere with investigations carried out by relevant agencies. Following an incident, a review will be completed, which may include updates to relevant policies and procedures.
UPDATES TO POLICIES AND RESOURCES:
Our policy review team has updated several key policies to reflect the new expectations and obligations relating to inappropriate conduct, including:
- Behaviour Guidance Policy + Behaviour Guidance: Bullying Policy
- Child Protection Policy
- Child Safe Environment Policy + Child Safety and Wellbeing Policy
- Code of Conduct Policy
- Dealing with Complaints Policy + Dealing with Complaints Policy Staff
- Governance Policy
- Interactions with Children Families and Staff Policy
- Performance Management Policy
- Recruitment Policy
- Staffing Arrangements Policy
- Student, Volunteer and Visitor Policy
- Supervision Policy
Induction Checklists, Code of Conduct -Staff Acknowledgement and Handbooks have been reviewed to ensure all staff, educators, volunteers and visitors are aware of their responsibilities to maintain professional behaviour, follow child safe practices, and recognise, prevent, and respond to inappropriate conduct
NEW RESOURCES
Additionally, new resources have been developed to support Services in complying with the new legislation requirements.
Management of Inappropriate Conduct Procedure:
A new procedure has been developed to provide guidance for educators and management in fostering a child safe environment within the Service. It outlines how to identify inappropriate conduct and discipline and details the processes for responding to and reporting any allegations, suspicions, or concerns.
Inappropriate Conduct Risk Assessment:
A new risk assessment has been developed to identify, assess and minimise risk of inappropriate conduct by employees, volunteers and visitors, ensuring children’s safety and wellbeing is prioritised at all times.
Additional guidance available from ACECQA CHILD SAFETY Inappropriate conduct and NSW Early Learning Commission Inappropriate conduct to a child.