All children have the fundamental right to feel safe, valued, respected and supported while attending early childhood education and care (ECEC) in NSW.

The NSW Government has amended the Children (Education and Care Services) National Law (NSW) to strengthen protections for every child in ECEC services. Changes introduced as part of recent child safety reforms include new provisions that:

• make it an offence to subject a child being educated and cared for by an ECEC service to ‘inappropriate conduct’
• define what is considered ‘inappropriate conduct’ in an ECEC context.

The legislative changes strengthen child safety measures by establishing clear behavioural expectations for ECEC providers and staff, and prohibiting conduct that is not acceptable in ECEC environments. They are designed to ensure that children are cared for in child safe environments that are emotionally, psychologically and physically safe.

The new law is not a substitute or related to the existing law that makes inappropriate discipline an offence (Section 166). The new provision focuses on staff interactions with children and the professionalism of staff in children’s learning environments.

If you observe or a child or parent discloses or alleges an incident of inappropriate discipline to you, you must notify the NSW ECEC Regulatory Authority.

You may also need to report to other agencies, including the NSW Police, Department of Communities and Justice (DCJ) and/or the Office of the Children’s Guardian (OCG).

Section 5AA Meaning of ‘inappropriate conduct’ in relation to a child

Section 5AA defines ‘inappropriate conduct’ as:

It also sets out factors that must be considered when determining whether conduct is inappropriate, including:

• whether the behaviour is consistent with expected practice in ECEC settings
• the child’s age and stage of development
• whether the conduct is likely to cause emotional, psychological or physical harm
• the intent or purpose of the behaviour, particularly if it could be perceived as violent or sexual in nature.

A child’s consent – or perceived consent by a staff member – is not relevant in determining whether conduct is inappropriate.

A child may be subjected to inappropriate conduct:

• in person, either directly or by witnessing it happen to others
• through verbal or electronic communication
• by electronic capture, including photographs, recordings or live video
• through repeated actions or ongoing patterns of behaviour over time.

Section 166A Offence to subject child to inappropriate conduct

Section 166A makes it an offence for anyone involved in the provision of education and care to subject a child to inappropriate conduct. This includes approved providers, nominated supervisors, educators (including casual, agency or relief staff and students), other staff, volunteers and family day care educators.

Significant financial penalties apply for breaches of this law. Individuals face fines of up to $34,200 and approved providers face penalties of up to $516,600, depending on the size and structure of the organisation.

What does inappropriate conduct look like?

The following conduct is considered inappropriate under Section 5AA of the Children (Education and Care Services) National Law (NSW). They breach professional boundaries and may pose significant risks to a child's safety and wellbeing.

• Inappropriate physical contact – touching a child in a sexualised or intrusive way, including tickling, wrestling, prolonged or unnecessary hugging that is not warranted in the circumstances, massaging, or physical closeness (such as encouraging a child sit on an educator’s lap for an extended period) that is not age appropriate or required based on the needs or abilities of a child.
• Grooming behaviours – including but not limited to favouritism, offering gifts or special privileges, encouraging emotional dependency (attachment fostering), or initiating private or secret communication with a child.
• Ill treatment that is not disciplinary in nature – including physical or verbal abuse, threats, yelling, swearing, rough handling or other conduct likely to cause emotional, physical or psychological harm.
• Unprofessional communication – such as sending personal messages, capturing or sharing images of children via unauthorised devices or platforms, or engaging with children online through social media or apps unrelated to your role.

If you observe, suspect or receive an allegation that someone is engaging or has engaged in inappropriate conduct at your ECEC service, you must notify your service leaders immediately and report the incident/s to the relevant authorities, as outlined in your service’s reporting policies and procedures. The NSW ECEC Regulatory Authority must be notified of all instances.

Approved providers must submit a notification through the NQA ITS portal by completing the I01: Notification of incident form and providing any required attachments.

Examples of inappropriate conduct

Below are examples of what inappropriate conduct may look like. Note, this is not a complete or exhaustive list.

Grooming

An educator at an ECEC service gives special attention to a particular child, regularly removing them from group activities to spend one-on-one time together. The educator brings in small gifts for the child on occasion and often encourages the child to sit on their lap during story time or quiet activities. Over time, the educator begins sharing personal information and encouraging emotional dependency.

Speaking aggressively to a child

An educator observes a colleague speaking aggressively and using negative language toward a child. The colleague raises their voice and makes critical comments that visibly upset the child This may include comments that are discriminatory, or demeaning towards that child or that may be perceived as bullying or harassment.

This conduct is inappropriate and inconsistent with best practice and child safety principles in ECEC settings. It may harm the child’s sense of self and does not protect their safety, rights or best interests.

The educator must report this inappropriate conduct to service leaders in line with the service’s reporting policies and procedures.

Inappropriate staff-to-staff conduct

A team member yells at a colleague in front of children, making sarcastic remarks about their competence and questioning their decisions in a hostile tone.

This creates an unsafe and intimidating environment. Although it is directed at a staff member, it undermines the culture of safety and professionalism required in an ECEC setting. Witnessing such conduct may also impact children's sense of psychological safety.

Inappropriate use of technology

An educator initiates phone contact with a school-age child they met while working as an educator at an outside school hours care (OOSH) service the child attends. After the initial contact, the educator helps the child create an online account, where the educator and child continue to communicate.

This behaviour is inappropriate and breaches professional boundaries between an educator and child. It may be indicative of grooming.

Note: online grooming is a criminal offence and can include online chats, sexting and other interactions. Online grooming can be a precursor for child exploitation, where an adult uses the internet or phone to display and communicate sexual imagery with or of a child.

Meeting your obligations

ECEC services must take proactive steps to ensure all staff, educators, volunteers and anyone involved in the care of children meet their legal obligations under section 166A and engage in appropriate conduct and interactions at all times.

Strengthen policies and procedures

Review and revise all relevant service policies and procedures to they ensure they reference and clearly address the requirements of Sections 166A and 5AA.

This includes but may not be limited to your:

• Child safe environment policy
• Safe use of digital technologies policy and online environments
• Interactions with children
• Staffing (including the staff code of conduct).

Your service must also have clear, accessible reporting policies and procedures and child-focused complaint handling processes in place so that any concerns about inappropriate conduct can be promptly and effectively identified, reported to and addressed by service leaders, and notified to the relevant authorities.

Report to the NSW ECEC Regulatory Authority

If you witness, suspect or receive any allegations or disclosures that a staff member or volunteer is engaging or has engaged in inappropriate conduct you must notify the NSW ECEC Regulatory Authority via the NQA ITS portal. Complete I01: Notification of incident form and provide any required attachments.

Services may also need to notify other authorities such as the Office of the Children’s Guardian, and the Department of Communities and Justice and the NSW Police. Read guidance on reporting incidents and concerns.

Build staff awareness, skills and capabilities

Approved providers and service leaders must support their staff to understand the new legislative requirements relating to inappropriate conduct under the National Law, including their legal obligations, and any updates made to service policies and procedures.

Clearly communicate and embed requirements and expectations for staff conduct and interactions:

• in recruitment processes, including onboarding and induction programs
• during ongoing training and professional development, ensuring all staff understand and consistently apply the updated legal requirements
• by conducting regular policy reviews to ensure documentation – and staff knowledge – is up to date and aligned with legal and regulatory standards.

Promote a safe and respectful culture

• Champion and model a child safe culture, practices and appropriate conduct at all times.
• Monitor and support staff – providing guidance and professional development where needed – to ensure consistent, appropriate interactions with children.
• develop and maintain a strong reporting culture where concerns about staff conduct and interactions can be raised safely and addressed promptly and appropriately.

Practise effective leadership and oversight

Approved providers and nominated supervisors must ensure that inappropriate conduct does not occur.

• Model and enforce child safe practices and behaviours – demonstrate that child abuse and harm will not be tolerated within the organisation
• Understand their legal responsibilities under sections 5AA and 166A of the National Law, including the requirement to report all serious incidents to the NSW ECEC Regulatory Authority within 24 hours
• Implement systems for regular policy reviews and compliance monitoring
• Adhere to child safe recruitment practices
• Ensure all required reports and notifications are made where inappropriate conduct presents a child safety concern. You may need to report to multiple agencies – visit Reporting Incidents and concerns for further guidance.

Read guidance on about leading a child safe service.

Resources

NSW Department of Education

• Identifying unacceptable or concerning behaviour
• Understanding manipulative behaviours and embedding safeguarding in recruitment
• Compliance focus – Safe and respectful interactions with children

NSW Office of the Children's Guardian (OCG)

• Child Safe Early Childhood Education and Care e-learning modules
• Guide to the Child Safe Standards

ACECQA

• NQF Child Safe Culture Guide
• NQF Online Safety Guide

Australian Human Rights Commission

• Code of Conduct for child safe organisations (PDF 568 KB)

Phoenix Support for Educators

• Understanding and supporting children’s behaviour professional learning resources, including podcast episode 3 on connections with children
• Strengthening relationships for children’s safety and wellbeing
• ‘Understanding and supporting children’s behaviour’ March 2024 ECE Connect session