Your reporting and legal obligations

​​​Guidance on mandatory and other reporting obligations where there is concern that a child or young person has been, is being, or is at risk of being abused.

 

Understanding your obligations to protect children

As members of a community, we all have a moral obligation to protect any child under our care and supervision from foreseeable harm.

As a school staff members you play a critical role in protecting children and must meet a range of legal obligations to identify, respond and report child abuse.

This includes support for all impacted students, including situations involving student sexual offending. You must provide support for both the alleged victim and the student who has allegedly engaged in the offending. 

The easiest way to comply with your legal and moral obligations is to remember that you must report any reasonable suspicion that a child has been abused, or is at risk of being abused. ​

This includes abuse that has, or is suspected to have, taken place within or outside of school grounds and hours.

This section sets out your legal obligations in further detail.

Read video transcript

Willa: Hi again, and welcome to this section on understanding our obligations to respond to child abuse.

Dane and I are going to run through the critical points and you guys can read through the text if you need more detail.

Dane: So Willa, I want to make sure that the kids in my class are safe from abuse, and I’d do anything to make sure they are, but I don’t really know what my legal obligations are?

Willa: Well, as staff members and contractors our obligations to protect children in our care from abuse are very high and they are set out in different pieces of legislation, including:

  • Duty of Care obligations
  • Mandatory Reporting Obligations
  • New Criminal Offences; and
  • Ministerial Order No. 870- Child Safe Standards.

Dane: Can you explain how these obligations apply to me? How can I meet all of them?

Willa: Of course Dane. The easiest thing to remember is that this resource has been designed to help you to meet your obligations to respond to child abuse.

The easiest way to comply with these obligations is to remember to follow the Four Critical Actions any time you form a reasonable belief that a child has been abused, or is at risk of being abused.

Dane: Does this include abuse that might have occurred outside of school hours and not on school grounds?

Willa: It certainly does.

Dane: That seems easy enough, but I’d still like to take a look at each of our obligations.

Willa: Ok. We have a duty of care to take reasonable steps to protect the children under our care and supervision, from any harm that is reasonably foreseeable.

And that duty applies to all school staff, including teachers, principals, allied health staff and contractors.

Dane: What do you mean “reasonable steps”?

Willa: Well, reasonable steps will depend on the individual circumstances.

Put simply, we’d breach our duty of care if we failed to act in the way a reasonable or diligent professional would have acted in the same situation.

Dane: Hmm. Can you give me an example?

Willa: Well, if we suspected a child was being abused, reasonable steps would likely include:

  • acting on concerns and suspicions of abuse quickly
  • seeking appropriate advice or consulting with other professionals or agencies if we’re not sure what to do
  • reporting the suspected abuse
  • providing on-going support
  • and sharing information with other school based staff who can help.

Dane: Thanks Willa, but what Mandatory reporting? I’m a mandatory reporter aren’t I?

Willa: Yes you are. You probably already know about our Mandatory Reporting requirements?

There are certain classes of professionals, who are classified as “mandatory reporters”.

Dane: Like teachers?

Willa: Yes, within our school this includes:

  • Victorian Institute of Teaching registered teachers
  • the school nurse and any visiting doctor.

Dane: What about Principal Dixon?

Willa: Yep, him too.

Willa: All mandatory reporters must report to Victoria Police and/or DHHS Child Protection as soon as possible if, during the course of carrying out their professional roles and responsibilities, they form a reasonable belief that:

  • a child has suffered, or is likely to suffer, significant harm as a result of physical abuse or sexual abuse, and
  • the child’s parents have not protected, or are unlikely to protect, the child from harm of that type.

Dane: And it’s a criminal offence not to report in these circumstances isn’t it?

Willa: Yes, and there are also a range of new criminal offences which have just been introduced

Willa: The Victorian Government has introduced new criminal offences to protect children from sexual abuse.

Dane: I’ve heard about these, they relate to all adults not just school staff, don’t they?

Willa: Yes, the new “Failure to Disclose” offence applies to all adults who form a reasonable belief that another adult may have committed a sexual offence against a child under 16 years of age, and fail to report this information to Victoria Police.

There is also a new offence called Failure to Protect. This offence applies to person in a position of authority within an organisation who knows of a substantial risk that a child:

  • who is under 16 years and in the care and supervision of the organisation
  • or who may become the victim of a sexual offence committed by an adult associated with that organisation.

Dane: Ok so does that cover it?

Willa: Just one more.

Willa: A new Ministerial Order came into effect on the 1st of January 2016.

Dane: What is that?

Willa: It’s something that all schools must comply with if they are to remain registered with the VRQA.

The Order sets out the actions that schools must take in order to meet seven new Child Safe Standards, which have been introduced in Victoria. This whole Protect package has been designed to support schools to meet these obligations.

This resource will help us to meet Standard Five, which is about responding to abuse.

Dane: Ok, so let’s see if I’ve got this right. We’ve got a range of obligations to responding and report suspected abuse. In some circumstances it may even be a criminal offence if we fail to respond.

Willa: And the easiest way to meet these obligations?

Both: Follow the Four Critical Actions

Duty ​​of care

All school staff have a duty of care to take reasonable steps to prevent reasonably foreseeable injury to children and young people under the care. This includes taking reasonable steps to protect their safety, health and wellbeing.

Who does this apply to?

Applies to all school staff.

Your duty of care also extends to students who are:

Aged 17 years and over

In circumstances where you suspect that a student over the age of 17 is subject to abuse you should still follow the Four Critical Actions for Schools. Although DHHS Child Protection work with children under 17 they can still be contacted with concerns relating to students 17 and over for referral and advice.

Involved in student sexual offending

You have a duty of care towards all students involved in student sexual offending, including the alleged victim, assailant and any other students in the school who may have witnessed and/or been affected by the abusive behaviour.

What must schools do?

You must follow the Four Critical Actions for Schools to ensure that you fulfil your duty of care obligations for all children who are involved in, or affected by, the suspected child abuse.

For more information, see: Report abuse

What does 'reasonable steps' mean?

The question of what constitutes 'reasonable steps' will depend on the individual circumstances of each case.

You may breach your duty of care towards a student if you fail to act in the way a reasonable or diligent professional would have acted in the same situation.

In relation to suspected child abuse, reasonable steps may include (but are not necessarily limited to):

  • acting on concerns and suspicions of abuse as soon as practicable
  • seeking appropriate advice or consulting with other professionals or agencies when the school staff member is unsure of what steps to take
  • reporting the suspected child abuse to appropriate authorities such as Victoria Police and DHHS Child Protection
  • arranging counselling and/or other appropriate welfare support for the child
  • providing ongoing support to the child – this may include attending DHHS Child Protection Case Planning meetings, and convening regular Student Support Group meetings
  • sharing information with other school based staff who will also be responsible for monitoring and providing ongoing support to the child.
More information
For more information, see: Report Abuse
​ ​

Reporting obligations

If you suspect or know a child in your care has been a victim of abuse you must act. 

Mandatory reporting

A mandatory reporter who fails to comply with reporting obligations may be committing a criminal offence.

Who does this apply to?

The following professionals are considered mandatory reporters:

  • Victorian Institute of Teaching (VIT) registered teachers or those permitted to teach or those who have permission to teach from the VIT.
  • Principals of government and non-government schools
  • Registered medical practitioners, nurses and all members of the police force
What must schools do?

Mandatory reporters must make a report to the Department of Health and Human Services (DHHS) (Child Protection).

A report must be made as soon as it is suspected that a child or young person is in need of protection as a result of physical injury or sexual abuse, and if the child's parents are unable or unwilling to protect the child from that abuse.

More information

For more information, see: Reporting Obligations

Failure to disclose

Failure to disclose is a criminal offence.

Who does this apply to?

This offence applies to all adults (not just professionals who work with children) who:

  • who form a reasonable belief that that another adult may have committed a sexual offence against a child under 16 years of age; and
  • fail to report this information to Victoria Police.
What must schools do?

All adults, not just professionals who work with children, have a legal obligation to report to Victoria Police where they form a reasonable belief that a sexual offence has been committed by an adult against a child under the age of 16.

More information

For more information, see:

Betrayal of trust

In response to the Betrayal of Trust Report, the Victorian Government has introduced these new criminal offences to protect children from sexual abuse. For more information on the Government's response, see: Betrayal of trust implementation

Reportable conduct scheme

The Department has a responsibility to report any allegations of 'reportable conduct' raised against Department employees who are over 18 years to the Commission for Children and Young People (CCYP).

There is an allegation of reportable conduct where a person has a reasonable belief that there has been:

  • a sexual offence, sexual misconduct or physical violence committed against, with or in the presence of a child
  • behaviour causing significant emotional or psychological harm to a child
  • significant neglect of a child, or misconduct involving any of the above.
Who does this apply to?

All Department employees and school councils.

What must schools do?

Principals and VPS managers should notify the Employee Conduct Branch as soon as possible after becoming aware of a reportable allegation, so that the Employee Conduct Branch can assess the allegations and report them to the CCYP, if appropriate.

Principals must still contact Victoria Police if they suspect a criminal offence involving a child has occurred.

The Scheme does not change a principal’s mandatory reporting or other reporting responsibilities.

More information

For more information, see: Reportable Conduct Scheme

Failure to protect

Failure to protect is a criminal offence.

Who does this apply to?

This offence applies to person in a position of authority within an organisation who:

  • knows of a substantial risk that a child under the age of 16, under the care, supervision or authority of the organisation will become a victim of a sexual offence committed by an adult associated with the organisation (e.g. employee, contractors, volunteer, visitor); and
  • negligently fails to remove or reduce the risk of harm.

Within a school setting, a position of authority includes:

  • principals
  • assistant principals
  • staff in institutional management positions (e.g. Regional Directors and other senior managers).
What must schools do?

Any staff member in a position of authority who becomes aware that an adult associated with their organisation (employee, contractor, visitor) poses a risk of child abuse to any child under their care must take all reasonable steps to remove or reduce that risk.

More information

For more information, see:

Betrayal of trust

In response to the Betrayal of trust Report, the Victorian Government has introduced these new criminal offences to protect children from sexual abuse. For more information on the Government's response, see: Betrayal of Trust implementation

Report a child in need of therapeutic treatment

Any member of the public is able to report concerns about a child’s (who is aged at least 10 and under 15 years) sexually abusive behaviour to the Department of Health and Human Services (DHHS) Child Protection.

DHHS Child Protection may make an application to the Children's Court for a therapeutic treatment order if it assesses that:

  • the child is in need of therapeutic treatment; and
  • the child or the child’s parent(s)/carer(s) are unable or unwilling to access treatment.

These orders require the child who is the subject of the order to attend an appropriate treatment program to address their sexually abusive behaviours. They may also have conditions requiring the child's parent(s)/carer(s) to take any necessary steps to enable the child to attend the treatment.

Reporting to DHHS Child Protection in relation to a child who may be in need of therapeutic treatment does not replace your requirement to report student sexual offending to Victoria Police.

In relation to children and young people exhibiting sexually abusive behaviour:

  • children under 10 years old cannot be held criminally responsible
  • children aged 10-15 years can be granted a therapeutic treatment order as an alternative pathway to treatment that does not involve criminal prosecution
  • therapeutic treament orders are not availabe for children over 15 years of age.

​Ministerial Or​der No 870: Child Safe Standards

All Victorian schools must comply with Ministerial Order No. 870: Child Safe Standards in order to be registered, and remain registered with the Victorian Registration and Qualifications Authority (VRQA).

The Order came into effect on 1 August 2016.

Who does this apply to?

Applies to all Victorian schools.

School governing authorities (which include government School Councils, Principals and nominated school leaders) will have responsibility for ensuring that schools meet all of the obligations set out within the Ministerial Order.

What must schools do?

All Victorian schools must:

  • embed a culture of 'no tolerance' for child abuse
  • comply with the prescribed seven minimum child safe standards

In meeting the requirements of Ministerial Order 870, schools must be inclusive of the needs of all children, particularly students who are vulnerable due to age, family circumstances, abilities, or indigenous, cultural or linguistic background.

More information

For more information, see: Ministerial Order 870

For support on how to meet these obligations, see: Child Safe Standards: Creating a child safe environment

How do these reporting obligations relate to the Child Safe Standards?

If you are already following the guidelines from the Child Safe Standards, your organisation is well-equipped to comply with the following reporting obligations. For more information, see: Child Safe Standards: Creating a child safe environment

School councils that provide early childhood education or care services

School Councils operating a licensed or approved early childhood education or care service (including an Outside Hours School Care service), must also comply with the National Quality Framework and its corresponding legislation if an incident, disclosure or suspicion of child abuse is formed within this service setting. For more information, see: National Quality Framework

More information

Read the Reporting Obligations policy
Available in the School Policy and Advisory Guide
Read the Reportable Conduct Scheme policy
Available in the School Policy and Advisory Guide
Read the Duty of Care policy
Available in the School Policy and Advisory Guide