AISV - Compliance Framework, Reporting criminal offences

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Reporting criminal offences

AISV Compliance Framework

Reporting criminal offences

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Do you need to comply?

Yes.

Conditions of compliance

Schools have obligations in relation to reporting child abuse, drug-related incidents and damage or loss as a result of a criminal offence.

If you have to comply, what do you have to do?

1 Child abuse and neglect (mandatory reporting)

1.1 Mandatory reporting

Since 1993 teachers have been mandated to report suspected child abuse or neglect to the Department of Human Services Child Protection. As of July 2003, this was updated to include any person who is registered as a teacher or principal under the Victorian Institute of Teaching Act 2001 (Vic.) or has been granted permission to teach under that Act. Any and all persons so described are mandated to report physical injury that results from abuse or neglect, and sexual abuse, to the Department of Human Services Child Protection.

This legal requirement to report child physical and sexual abuse arises from Section 64 of the Children and Young Persons Act 1989 (Vic.). The section states that:

".if in the course of his or her duties, a teacher or principal forms the belief on reasonable grounds that a child is in need of protection on the ground that a child has or is likely to suffer significant harm as a result of physical injury or sexual abuse, and the child's parents have not protected or are unlikely to protect the child from harm of that type, the person must notify the Department of Human Services Child Protection of that belief and of the reasonable grounds as soon as practicable:

. after forming the belief; and

. after each occasion on which he or she becomes aware of any further reasonable grounds for the belief."

1.2 The basis for notification

1.2.1 Definition of a child

Where teachers or principals have concerns about the safety and wellbeing of students and believe a mandatory report may be required, schools should take the view that the definition of a child includes any person 17 years of age or younger.

1.2.2 Forming a belief

The Children and Young Person's Act 1989 (Vic.) states that teachers must notify the Department of Human Services when they form a belief on reasonable grounds that a child has suffered, or is likely to suffer, significant harm as a result of physical injury or as a result of sexual abuse. A belief is considered to be more than a suspicion. One may be considered to have formed a belief if one is more likely to accept rather than reject the suspicion that a child is at risk of harm from physical or sexual abuse.

Proof is not required that abuse has occurred or is likely to occur. A belief is sufficient. It is the role of the Department of Human Services to determine whether that belief should be investigated.

1.2.3 Reasonable grounds

Reasonable grounds can be thought of as the mechanism used for forming the belief. These include situations where:

a child tells the teacher they have been abused
someone else tells the teacher (perhaps a relative, friend, neighbour or sibling of the child) that a child has been abused or is at risk of abuse
a child tells the teacher that they know someone who has been abused (often a child is referring to him or herself)
the teacher's own observation of a particular child's behaviour/injuries or their knowledge of children generally leads them to suspect that abuse is occurring.

1.3 Keeping notes

Teachers and principals should keep working notes of any concerns they may have about a child or children. These concerns should be clearly documented representing a chronology of events including actions taken and further considerations. A teacher's working notes can be used to provide information to Child Protection officers or police investigating an allegation and may be used as evidence in subsequent court proceedings.

1.4 Making a mandatory report

Once a teacher or principal has formed a belief or a disclosure has been made, a report must be made to the Department of Human Services Child Protection as soon as practicable.

2 Responding to drug-related incidents including those involving illicit drugs

In the case of incidents involving illicit drugs, initial actions and responses should focus on the safety and welfare of those directly and indirectly involved. Sanctions or consequences may then follow according to the school's code of conduct.

Schools are advised to have clearly defined policies and procedures relating to illicit drugs clearly documented and included in the school's drug education policy framework. Staff should be made aware of these policies and procedures and be provided with professional development in responding to drug related incidents. Where school personnel become aware that illicit drug use by students is occurring or is likely to take place, there is a clear 'duty of care' to pass on this information via the defined school channels.

2.1 Informing the police

The possession, use, distribution or selling of illicit drugs is prohibited under the Drugs, Poisons and Controlled Substances Act 1981 (Vic.).

Under Section 5 of the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) schools are required to notify police should they come into possession of an illicit substance. The Act defines possession as follows:

".any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."

Consequently, if the Principal intervenes or takes action as a result of knowledge of an alleged criminal offence, including the use, possession and distribution of illicit drugs, the local police contact person must be advised. Internal procedures and actions undertaken should be clearly documented.

2.2 Informing parents

In the case of incidents involving illicit substances the Principal would normally contact the parents or guardians of the student(s) as soon as practicable. While there are implications in civil law it should be noted that a teacher or Principal does not breach any part of the criminal law by failure to notify a parent of use of an illicit drug.

3 Damage or loss as a result of a criminal offence

In the case of damage or loss arising from a criminal offence, the police should be notified, and a police crime report obtained. The information provided in this report and any subsequent investigation will assist with the resolution of any claim that may be made against an insurer.

What are the consequences if you don't comply?

You may be in breach of the Children and Young Persons Act 1989 (Vic.) or the Drugs, Poisons and Controlled Substances Act 1981 (Vic.). You may also be in breach of your duty of care responsibilities.

Who will help you?

AISV contact:

Peter Roberts
Assistant Director, Management Services
Ph. 03 9825 7211
peter.roberts@ais.vic.edu.au

AISV documents:

Child Protection / Mandatory Reporting

Illicit Drugs

Incident Investigations