Strengthening Child Safety in NSW ECEC

All children have the fundamental right to feel safe, valued, respected and supported while attending early childhood education and care (ECEC) in NSW. To reinforce this right, the NSW Government has amended the Children (Education and Care Services) National Law (NSW) as part of recent child safety reforms. These changes introduce new provisions that make it an offence to subject a child in ECEC to “inappropriate conduct” and clearly define what that means in an early childhood context.

The legislative changes strengthen child safety measures by establishing clear behavioural expectations for providers and staff, prohibiting conduct that is not acceptable in ECEC environments. They are designed to ensure that children are cared for in environments that are emotionally, psychologically, and physically safe. Importantly, the new provisions focus on staff interactions with children and the professionalism expected in learning environments. They are separate from, and not a substitute for, the existing law that makes inappropriate discipline an offence under Section 166.

Section 5AA – Meaning of ‘Inappropriate Conduct’

Section 5AA sets out the definition of “inappropriate conduct” in relation to a child. When determining whether conduct is inappropriate, several factors must be considered:

• 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.

Children may be subjected to inappropriate conduct in different ways:

• 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.

Examples of Inappropriate Conduct

Section 5AA provides clear examples of behaviours that breach professional boundaries and may pose risks to children’s safety and wellbeing:

• Inappropriate physical contact: sexualised or intrusive touching, prolonged hugging, wrestling, massaging, or encouraging a child to sit on an educator’s lap for extended periods without clear developmental or care-related need.
• Grooming behaviours: favouritism, offering gifts, encouraging emotional dependency, secret communication, or private contact outside professional boundaries.
• Ill treatment: verbal abuse, threats, yelling, swearing, rough handling, or any behaviour likely to cause harm.
• Unprofessional communication: sending personal messages, unauthorised image capture or sharing, or engaging with children online through social media or apps unrelated to your role.

Section 166A – Offence to Subject a Child to Inappropriate Conduct

Section 166A makes it an offence for anyone involved in ECEC including providers, supervisors, educators, volunteers, and family day care educators to subject a child to inappropriate conduct.

• Individuals may face fines up to $34,200.
• Approved providers may face penalties up to $516,600, depending on the organisation’s size and structure.

Reporting Obligations

If you observe, suspect, or receive an allegation of inappropriate

Reporting Obligations in NSW ECEC

Why Reporting Matters

Reporting obligations are central to the strengthened child safety laws in NSW. They ensure that concerns about inappropriate conduct are acted on quickly, transparently, and in ways that protect children. Every educator, staff member, and provider has a legal responsibility to report incidents or allegations of inappropriate conduct.

Who Must Report

• All individuals involved in ECEC services: approved providers, nominated supervisors, educators (including casual, agency, relief staff, and students), volunteers, and family day care educators.
• Approved providers carry additional responsibilities to notify both the regulator and families.

What Must Be Reported

You must report if you:

• Observe inappropriate conduct.
• Suspect inappropriate conduct has occurred.
• Receive an allegation or disclosure from a child, parent, or colleague.

Inappropriate conduct includes physical, verbal, or online behaviours that breach professional boundaries, cause harm, or create unsafe environments.

How to Report

1. Notify service leaders immediately in line with your service’s policies and procedures.
2. Report to the NSW Early Learning Commission via the NQA ITS portal:
   • Complete an I01: Notification of Incident form.
   • Submit within 24 hours of the incident or of becoming aware of it.
3. Notify other authorities if required:
   • NSW Police (for criminal matters).
   • Department of Communities and Justice (DCJ).
   • Office of the Children’s Guardian (OCG).
4. Inform parents or carers of the incident or allegation and keep evidence that they have been notified.

Penalties for Failing to Report

• Failing to notify the Commission of a serious incident is an offence under Section 174.
• Penalties apply to individuals and providers who do not meet reporting obligations.

Your Role as an Educator

• Be vigilant and proactive in recognising inappropriate conduct.
• Follow your service’s reporting policies without delay.
• Ensure you understand the updated requirements under Sections 5AA and 166A.
• Promote a strong reporting culture where concerns can be raised safely and addressed promptly.

Reporting is not optional. It is a legal requirement designed to protect children. Every educator and provider must act immediately when inappropriate conduct is observed, suspected, or disclosed.

Reference: 
Compliance Focus – Offence To Subject Child To Inappropriate Conduct