The early childhood education and care (ECEC) sector must provide safe, welcoming and inclusive places for children to learn, develop and thrive.

New provisions in the Children (Education and Care Services) National Law (NSW) make it an offence to subject a child to ‘inappropriate conduct’ (section 166A) in ECEC settings.

The new offence strengthens child safety measures by prohibiting behaviours that are not acceptable in ECEC environments.

It is designed to ensure that all approved providers operating services in NSW and their staff create and maintain environments that are emotionally, psychologically and physically safe for children.

What is inappropriate conduct to a child?

Section 5AA of the Children (Education and Care Services) National Law (NSW) defines ‘Inappropriate conduct’ as:

It includes behaviour that is:

• inconsistent with professional standards
• causes or is likely to cause emotional, psychological, or physical harm
• or has violent or sexual connotations.

Consideration must be given to a child’s age and stage of development when determining whether behaviour is inappropriate conduct.

A child may be subjected to inappropriate conduct – either directly or indirectly as a witness – that occurs through:

• through verbal or electronic communication
• by electronic capture, including photographs, recordings or live video
• repeated actions or ongoing patterns of behaviour over time.

A child’s consent – or an adult’s belief that a child has consented to the behaviour or their intent – is irrelevant for the purposes of determining an offence under section 166A.

Examples of inappropriate conduct

• Inappropriate physical contact – touching a child in a sexualised or intrusive way, such as tickling, wrestling, prolonged or unnecessary hugging that is not warranted in the circumstances, kissing a child on the cheek, 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 or psychological harm.
• Unprofessional communication – such as in-person conversations, 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.

For further guidance and examples of inappropriate conduct in ECEC contexts, read Compliance focus – offence to subject child to inappropriate conduct.

Who does the law apply to?

All individuals working directly with or who have access to children in NSW ECEC settings are required to comply and understand their obligations under sections 5AA and 166A.

This includes but may not be limited to:

• educators (including casual, relief and agency staff)
• staff members (including cooks, cleaners, administrators and contractors)
• volunteers
• family day care educators
• nominated supervisors
• approved providers.

Legal obligations for approved providers and nominated supervisors

Approved providers (section 166A(1)) and nominated supervisors (section 166A(2)) must ensure that no child being educated and cared for by the service is subjected to inappropriate conduct.

Legal obligations for ECEC staff (including volunteers) and family day care educators

A staff member of (or a volunteer at) an ECEC service (section 166A(3)) or a family day care educator (section 166A(4)) must not subject any child being educated and cared for to inappropriate conduct.

Reporting inappropriate conduct

If you observe, 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 Early Learning Commission, which is the independent regulator for ECEC in NSW. Approved Providers should make reports via NQA ITS.

ECEC service leaders, staff, parents or carers who want to report incidents, suspicions, allegations or disclosures of inappropriate conduct can contact the NSW Early Commission Information and Enquiries team on 1800 619 113 or by emailing information@earlylearningcommission.nsw.gov.au.

Inappropriate conduct is considered a serious incident and requires immediate attention. It must be reported as soon as practicable, but within 24 hours of the incident or within 24 hours of becoming aware of the incident.

You may also need to notify other agencies. This may include:

• NSW Department of Communities and Justice (DCJ) via the Child Protection Helpline or NSW Mandatory Reporter Guide
• NSW Office of the Children’s Guardian (OCG) under the Reportable Conduct Scheme.
• the NSW Police if what you observe or suspect may constitute a criminal offence.

You must also notify the appropriate service leaders or management (such as the nominated supervisor) at your service, documenting the disclosure or concern accurately and promptly, and ensuring reports are made to the relevant authorities.

Updating service policies and procedures

Approved providers and their services must review and amend their policies to ensure they clearly reference the new legal provisions under Sections 166A and 5AA.

This includes but may not be limited to your service’s:

• Child safe environment policy
• Safe use of digital technologies policy and online environments
• Interactions with children
• Staff code of conduct
• any other policies related to staff conduct and behaviour.

In addition, your service must have clear and accessible reporting policies and procedures in place so any concerns about inappropriate conduct can be promptly and effectively identified, raised with service leaders, managed and notified to the relevant authorities.

Guiding children’s behaviour

Behaviour guidance that is developmentally appropriate, respectful, and aligns with accepted ECEC standards is not considered inappropriate.

Sections 5AA and 166A relate to conduct that causes or may cause harm or violates professional standards, not legitimate educational or behavioural support strategies.

Guiding children’s behaviour must meet the requirements of regulation 155 of the Education and Care Services National Regulations. When guiding children’s behaviour, service leaders and educators must, at all times:

• maintain the dignity and rights of each child
• give each child positive guidance and encouragement toward acceptable behaviour
• have regard for the family and cultural values, age, physical and intellectual development, and abilities of each child being educated and cared for by the service.

Visit ACECQA’s NQF Child Safe Culture Guide for further information on appropriate behaviour guidance.

Services can also access free professional learning resources developed by Phoenix Support for Educators on understanding and supporting children’s behaviour.

The resource suite includes:

• 6 self-paced webinars and 6 recorded Q&A sessions, with an accompanying workbook
• 6 podcast episodes
• the ‘Understanding and supporting children’s behaviour’ March 2024 ECE Connect session.

Next

Read Reporting incidents and concerns.