Legislative requirements

Federal Legislation

The Family Law Act clearly states that both parents are responsible for the care and welfare of their children until they turn 18. Separation and divorce do not automatically change parental responsibility. Parental responsibility refers to all the duties, powers, responsibilities and authority which, by law, parents have in relation to their children.

It can only change where:

the child is adopted and parental responsibility is exercised by the child’s adoptive parents
the Family Court removes one parent’s responsibility
the Children’s Court allocates all or part of the parental responsibility in the process of care and protection proceedings. It may allocate parental responsibility to the Minister of Community Services, or to someone else. An agency worker never has parental responsibility for children in their care.

Child Protection Legislation - State and Territories

The child protection legislation in every state and territory have these common goals:

The safety, welfare and wellbeing of the child/young person are paramount.
To keep children safe from harm.
To act in protective ways towards children.

For each state and territory, the legislation;

determines the statutory body responsible for child protection
determines what child protection concerns can be reported to the statutory body
states who must make reports of child protection concerns
determines how child protection activities are to be undertaken.

For the most up-to-date information and an overview of child protection legislation, go to the Australian institute of family studies (AIFS) website.

Child protection legislation by jurisdiction

You can access each legislation by visiting the Australian Institute of Health and Welfare

Reference | Australian Government - Australian Institute of Health and Welfare 17/08/2023, Child protection legislation by jurisdiction, accessed 30/05/2024 https://www.aihw.gov.au/reports-data/health-welfare-services/child-protection/child-protection-legislation-by-jurisdiction

Who is the Statutory body responsible for child protection in NSW?

The NSW Department of Communities and Justices (DCJ) is the lead agency in the Communities and Justice portfolio, which aims to create safe, just, inclusive and resilient communities through its services. DCJ enables services to work together to support everyone's right to access justice and other help for families, and strengthen the promotion of early intervention and inclusion, with benefits for the whole community.

DCJ works with children, adults, families and communities to improve lives and help people realise their potential. They are committed to the safety and wellbeing of children and young people and protecting them from risk of harm, abuse and neglect.

Reference | NSW Government 08/12/2023- Communities and Justices, About DCJ, accessed 30/05/2024 https://dcj.nsw.gov.au/about-us/who-we-are-and-what-we-do/about-dcj.html

Mandatory Reporters

Mandatory reporters are required by law to report suspected child abuse and neglect to government authorities.

Mandatory reporters are people who deliver the following services, wholly or partly, to children as part of their professional work or other paid employment, and those in management positions in these services:

Health care — registered medical practitioners, specialists, enrolled and registered nurses, registered midwives, occupational therapists, speech pathologists, psychologists, dentists and other allied health professionals working in sole practice or in public or private health practices.
Welfare — registered psychologists, social workers, caseworkers and youth workers.
Education — teachers, counsellors, principals,
Children’s services — early childhood educators and teachers
Residential services — refuge workers, community housing providers.
Law enforcement — police.
Disability services – disability support workers and personal care workers.

On 1 March 2020, mandatory reporter groups in NSW expanded to also include:

A person in religious ministry or a person providing religion based activities to children (e.g. minister of religion, priest, deacon, pastor, rabbi, Salvation Army officer, church elder, religious brother or sister)

Registered psychologists providing a professional service as a psychologist to adults.

In NSW, mandatory reporting is regulated by the Children and Young Persons (Care and Protection) Act 1998 (the Care Act) and mandatory reporters are guided by the NSW Mandatory Reporter Guide.

Reference | NSW Government, Communities and Justices, Who is a mandatory reporter, accessed 30/05/2024 https://reporter.childstory.nsw.gov.au/s/who-is-a-mandatory-reporter

Information exchange for safety, welfare and wellbeing of children and young people

The provisions under Chapter 16A of the Children and Young Persons (Care and Protection) Act 1998 enable the exchange of information between government agencies and non-government organizations. This exchange aims to facilitate collaboration in providing services to vulnerable children and their families. The focus is on prioritizing the safety, welfare, and well-being of children and young people over individual privacy rights.

At times, it becomes evident that a child or young person has experienced harm or is at risk only when information from multiple sources is synthesized to form a comprehensive understanding of their situation. Information exchange provisions aim to identify cumulative harm resulting from various factors or prolonged exposure. This exchange of information can take place regardless of whether the child or young person is familiar to DCJ and irrespective of their consent to the information sharing.

Who can share information?

'Prescribed bodies' are organisations that has the responsibility for the provision of services to children. Within the Children and Young Persons (Care and Education) Act 1988 Chapter 16A facilitates the sharing of information that relates to the safety, welfare and wellbeing of children in NSW. It is designed to promote child safety and wellbeing. The Chapter highlights the need for interagency collaboration. Consent is not required to share information Under Chapter 16A. The following organisations are approved to participate in Information Exchange and are considered prescribed bodies:

NSW Police
Government department or a public authority
Government school, a registered non-government school or a TAFE
Public health organisation or a private hospital
Private fostering agency or a private adoption agency
Education and care services
Any other organisations that have direct responsibility for, or supervision of, the provision of healthcare, welfare, education, children’s services, residential services, or law enforcement, to children
Commonwealth agencies only with Community Services

What information can be requested or provided?

Information must relate to safety, welfare or wellbeing of a child or young person and includes;

a child or young person’s history or circumstances and/or
a parent or other family member and/or
significant or relevant relationship with a child or young person and/or
the other agency’s work now and in the past

Information exchange and families

Open and transparent communication with families is crucial for building trust, promoting collaboration, and ensuring that the best interests of the child are met. However, this involvement must be approached with sensitivity, respect for privacy, and consideration for the safety and well-being of the child. We should tell families where it makes sense to do so. it is important to reflect on the services policy and have information in your child protection policy about information exchange so parents are aware of you obligations.

It is not necessary to inform family that information will be exchanged where there is:
risk to child or young person
risk to you or another person
family can’t be contacted

Information_Sharing_under_Chapter_16A.pdf

Reference | NSW Government, NSW Department of Education, Information sharing under Chapter 16A, accessed 30/05/2024 https://education.nsw.gov.au/content/dam/main-education/early-childhood-education/about-us/Information_Sharing_under_Chapter_16A.pdf

Protection for reporters when information is exchanged

There are provisions in place to protect individuals who report concerns or exchange information related to child welfare and safety. These protections are designed to encourage reporting and ensure that those who come forward with information are not subject to retaliation or legal repercussions. Section 245G of the legislation provides protection from liability for persons who share information in accordance with Chapter 16A. Including protection from civil, criminal or disciplinary action. Protections generally apply to reports made in good faith, meaning the reporter / or person sharing information genuinely believes the information being reported /shared is not making a false report with malicious intent.

Your role in an interagency response to child protection

The Collaborative Practice in Child Wellbeing and Protection: NSW Interagency Guidelines for Practitioners 2021 (the Guidelines) is a resource for all government and non-government agencies working in the child and family services sector. The Guidelines provide key information and guidance to assist interagency partners to work collaboratively to meet the safety, welfare and wellbeing needs of children and young people.

In general, you can;

Continue support to the child or young person: ensuring that their needs are met and that they feel safe and secure in the learning environment. For example, an educator can provide additional emotional support to the child or young person,
Provide services to the child or young person and/or his or her family members: connecting them with appropriate resources and support services. For example, an educator can provide information about community resources, or can refer the family to a social worker or other support professional.
Make further reports of risk of harm if necessary: If an educator has concerns about the safety or wellbeing of a child or young person, they may need to make further reports of risk of harm to the appropriate authorities. For example, if an educator observes signs of abuse or neglect, they may need to report this to child protection services.
Make and receive referrals: An educator can make and receive referrals to other professionals or support services as needed. For example, an educator may refer a child or young person to a speech therapist or occupational therapist, or may receive a referral from a social worker or other support professional.
Participate in developing and implementing case plans: An educator can participate in developing and implementing case plans for children or young people who are at risk of harm. For example, an educator can provide input into the development of a case plan, or can help implement strategies to support the child or young person’s safety and wellbeing.
Advocate for the child or young person and his or her family: An educator can advocate for the child or young person and his or her family by ensuring that their needs are met and that their rights are respected. For example, an educator can advocate for the child or young person’s right to access appropriate resources and support services, or can advocate for the family’s right to be involved in decision-making processes.

Pre employment and volunteer screening checks

Pre-employment and volunteer screening for people seeking to engage in child-related work is one measure that contributes to ensuring the safety of children within these organisations. All Australian states and territories administer schemes for screening people who work and volunteer with children.

Across Australian states and territories, variations exist in the procedures for pre-employment or pre-volunteering screening assessments. In NSW employees and volunteers aged 18 years or older working in child-related roles, where contact with children is a usual part of the work, and not just incidental and adults who reside or stay regularly on the property of an authorised carer, home-based education and care service providers, family daycare service providers, potential adoptive parents, and heads (e.g. chief executive officers) of organisations captured by the Child Safe Scheme are required to obtain a Working with Children Check (WWCC) which is valid for 5 years. Access the following websites for further information;

Summary of checks and clearances for Australian jurisdictions

Duty of care

Duty of care refers to our legal duty to take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to harm children. Duty of care describes the obligations employers and employees have to each other and those they are caring for. A reasonable worker would act in accordance with:

policies and procedures
reasonable and lawful instructions
their skills, training, duties and position description
commonsense

First, you must take steps to identify risks: any reasonably likely harmful effects of your actions and inactions (the law calls this reasonable foreseeability). If you identify a reasonably likely risk of harm, you must take reasonable care in response. Reasonable care recognises that:

it is impossible to provide perfect care
that at times we have limited resources and limited ability to protect people from harm
it is important that people working in caregiving take all reasonable steps to reduce risk

Under the duty of care, early childhood services are required to take reasonable steps to ensure the safety, health, and wellbeing of children in their care. This includes the following

Providing a safe environment: Early childhood services should ensure that the environment is safe and free from hazards. This includes checking equipment regularly, ensuring that the premises are secure, and providing adequate supervision to children.
Risk management: Early childhood services should identify potential risks and take steps to minimize them. This includes conducting risk assessments, developing policies and procedures, and providing staff training.
Health and hygiene: Early childhood services should promote good health and hygiene practices. This includes ensuring that children have access to clean drinking water, providing healthy meals and snacks, and promoting good hygiene practices such as hand washing.
Professional conduct: Early childhood services should ensure that staff members behave professionally and ethically. This includes maintaining professional boundaries, respecting children’s rights and privacy, and avoiding any behavior that could be considered abusive or neglectful.
Child protection: Early childhood services should have policies and procedures in place to protect children from harm. This includes having a child protection policy, providing staff training, and reporting any suspected cases of child abuse or neglect.

Reporting to Child Protection Helpline

It is a legal requirement for a mandatory reporter to report their suspicions to the Department of Communities and Justice. However, s.29A of the Children and Young Persons (Care and Protection Act 1998) recognises that making a report does not necessarily exhaust a mandatory reporter’s duty of care to a child, young person or their family.

This means that a mandatory reporter’s duty of care is not over when they make a report to the Child Protection Helpline. A mandatory reporter should consider how they can continue to respond to the needs of the child, young person and their family. There are also other support services available for children, young people and families that may be able to help.

Reference | NSW Government, Communities and Justice, What is your duty of care?, accessed 30/05/2024 https://reporter.childstory.nsw.gov.au/s/what-is-my-duty-of-care

Updating record keeping requirements to support child protection.pdf

Child Protection Record Keeping Requirements

ACECQA, Updating record keeping requirements to support child protection19/04/2024, accessed 30/05/2024 https://www.acecqa.gov.au/sites/default/files/2024-12/InfoSheet_NewRecordKeepingRequirementsToSupportChildProtection_v2%20%281%29.pdf

National Quality Framework Child Safety changes from 1 September 2025 and 1 January 2026

Significant regulatory changes are to be implemented for the education and care sector, aimed at strengthening protections for children. These reforms reflect a renewed commitment from governments and regulators to prioritise child safety—both in the physical environment and in how services respond to incidents.

Overview of the regulatory changes coming into effect 1 September

Three key changes will apply:

Services must have a policy and procedures around digital technologies and online environments, including the use of CCTV
The timeframe to notify the regulatory authority of any incidents or allegations of physical or sexual abuse of a child while at an education and care reduces from 7 days to 24 hours
Services will need to be free of vaping substances and devices.

From 1 January 2026, the National Quality Standard will also be updated to strengthen wording around children’s safety and its direct link to quality

The new regulations form part of the response to the 16 recommendations of last year’s child safety review.

Source| ACECQA – NQF Child Safety Changes Information Sheet, July 2025, please see below

InformationSheet_CS5_2025.pdf

The Australian Children’s Education and Care Quality Authority (ACECQA) has released 2 new National Quality Framework (NQF) Child Safety Guides.

The guides will help providers and services prepare for changes to the Education and Care Services National Regulations. The changes will take effect on 1 September 2025.

The NQF Child Safe Culture Guide helps embed child-safe cultures.
The NQF Online Safety Guide provides support to keep children safe when using online and digital technologies.

A range of support tools are available within the NQF Child Safety Guides.

Source | https://www.education.gov.au/early-childhood/announcements/national-child-safety-review-new-sector-guidance accessed 28/08/2025

Reporting incidents to the regulatory authority

Approved providers are required to notify the NSW Early Childhood Education and Care (ECEC) Regulatory Authority of any prescribed incident as outlined in regulation 175 that occurs or is alleged to have occurred at their service.

Notifications must:

• relate to one incident only

• be made within the prescribed timeframe

• be submitted regardless of whether the parent, family or carer has requested further action or information

• contain consistent and accurate information.

Refer to the National Decision Tree for notification categories.

Source | ECEC Update <ecedupdate@comms.education.nsw.gov.au

Understanding the Reportable Conduct Scheme in Early Childhood Education

The Reportable Conduct Scheme in New South Wales (NSW) is a child protection initiative overseen by the Office of the Children’s Guardian. It is designed to ensure that allegations of certain types of misconduct involving children by employees, volunteers, or contractors in child-related organisations are properly investigated and reported.

The Reportable Conduct Scheme is a legal framework in NSW designed to protect children by ensuring that allegations of serious misconduct by staff, volunteers, or contractors in child-related organisations are properly managed and reported. In early childhood education settings, this means that services like preschools, long day care centres, and family day care must follow strict procedures when concerns arise.

What is Reportable Conduct?

Reportable conduct includes serious behaviours such as:

Sexual offences or misconduct involving a child
Physical assault of a child
Neglect or ill-treatment
Psychological harm
Any behaviour that raises concerns about a person’s suitability to work with children

Your Responsibilities as an Educator

If you become aware of a concern or allegation, you must report it to your service’s designated child safety officer or manager. The organisation then has 7 business days to notify the Office of the Children’s Guardian. An internal investigation will follow, and it must be fair, thorough, and respectful of everyone involved.

This scheme helps ensure that children in early learning environments are safe and protected. It also supports educators by providing clear guidelines and oversight when handling sensitive situations.