“Even where information sharing is legally permitted or required, there may be reluctance to share. Concerns about privacy, confidentiality and defamation, and confusion about the application of complex and inconsistent laws, can create anxiety and inhibit information sharing. Institutional culture, poor leadership and weak or unclear governance arrangements may also inhibit information sharing and, as a result, undermine the safety of children.”1
– 2017 Royal Commission into Institutional Responses to Child Sexual Abuse
The recent arrest of a Victorian childcare worker charged with more than 70 child sex offences has shaken the early childhood education sector to its core. It is a harrowing reminder that our systems and safeguards still leave children vulnerable to abuse.
Even more disturbing are reports that the childcare worker worked in 23 childcare centres within an 8-year period and was dismissed from a previous centre over the handling of an incident report months before gaining employment at the service where the alleged assaults occurred.2 His termination with that employer also came days after a parent at the centre raised concerns about the childcare workers and asked that he not be allowed near her daughter. So how did this happen? Were there confidentiality agreements preventing the childcare centre from warning future childcare centres about this worker?
For those in the sector who investigate misconduct as part of their role, the same patterns repeat. Known perpetrators quietly exit one workplace and reappear in another. Often, their past conduct has been obscured by confidentiality clauses in separation agreements.
A System Built to Keep Things Quiet
For employers managing complex staff issues, a separation agreement, containing strict confidentiality obligations, can feel like a tidy solution. It is a way to avoid costly legal disputes.
But these confidentiality clauses don’t just protect the parties. They can actively harm the next employer, and worse, the next child, service user or colleague.
There is a strong body of evidence, both in Australia and overseas, that many organisations use (and often over-use) confidentiality clauses to protect their reputation. The use of strict confidentiality clauses in separation agreements enables the perpetrators of abuse to move between organisations and jurisdictions undetected, where the harm can continue. And yet, the practice continues, not from malice, but often from misplaced caution.
Systemic Failure, Repeated
In our work at Moores, we’ve supported organisations through crisis after crisis involving misconduct, including child abuse, grooming, and inappropriate conduct. In one matter, a worker dismissed for child safety code of conduct breaches and professional boundary violations with children had already been the subject of similar concerns at a previous employer. But because the prior allegations had been dealt with quietly under a separation agreement, there were no warning signs during the screening and recruitment process. The employee was permitted to resign from the former employer, and the employee and former employer agreed to keep all matters surrounding the employee’s resignation strictly confidential.
The overuse of confidentiality clauses in separation agreements isn’t unique to childcare or to child safety. The Australian Human Rights Commission’s 2020 Respect@Work Sexual Harassment National Inquiry Report3 commented that the use of non-disclosure agreements to resolve sexual harassment matters often serves to silence victims, conceal workplace misconduct, protect the reputation of the harasser and the organisation and reinforce a culture of silence. These are not just HR failures. They are systemic weaknesses that undermine accountability for harm and the ability of employers to properly screen prospective employees during the recruitment process.
Why the Status Quo Must Change
Verifying a Working with Children Check is not enough. In reality, most perpetrators of abuse don’t have a criminal record when they begin abusing children or sexually harassing people in the workplace.
Creating a culture of safety demands more than compliance – it requires a cultural shift.
That means:
- Declining mutual confidentiality clauses in separation agreements where an employee departs due to concerns about child safety or sexual harassment. This helps to ensure that an organisation can openly and honestly share concerns with regulators and future prospective employers conducting reference checks. Unilateral confidentiality obligations that only apply to the respondent/exiting employee may be appropriate.
- Asking more probing questions during recruitment and reference checks before a new employee commences in their role. This could involve:
- asking about gaps in employment history, and for references from the candidate’s recent employers (if they are not referees);
- scenario based questions about acceptable and unacceptable conduct towards children and vulnerable people;
- asking an employee to sign a statutory declaration confirming they have not been the subject of any report, complaint, disciplinary action or allegations of inappropriate or reportable conduct (including inappropriate conduct towards a colleague, service user or child); and
- provide written acknowledgment that they have read and agree to comply with your organisation’s Child Safety Policy & Procedure and child safety code of conduct (if you have one).
- Creating child-safe cultures where staff feel empowered to report concerns early by:
- regularly communicating to staff expectations about acceptable and unacceptable conduct; and
- providing new and existing employees with information and training at induction to support their understanding of child safety, child abuse and/or risk of harm, and their reporting obligations, with annual refresher training.
- Treating risk as a shared responsibility, not something to offload to the next organisation.
How Moores Can Help
At Moores, we work alongside peak bodies and associations, schools, early childhood education and care organisations, religious organisations, and other child-focused organisations on the full spectrum of child safety and safeguarding issues. We don’t just react to misconduct; we help organisations prevent it.
We support our clients by:
- advising on child safety obligations across all Australian jurisdictions, the application of relevant Child Safe Standards and what is required to meet or exceed them, working with children check requirements and reporting obligations, and best practice in surveillance, screening and recruitment;
- designing and delivering child safety training for staff, leaders and boards;
- designing child safety frameworks for state and large national organisations and peak bodies that are aligned with best practice, including policies, codes of conduct and state-based reporting procedures;
- developing practical child safety tools, including incident and risk management frameworks, guidelines and age-appropriate information for children;
- managing child safety investigations; and
- conducting audits for compliance with child safety obligations.
We approach this work with deep respect for the trust placed in child-focused organisations. We know the pressure to get it right and what it takes to do so.
Organisations that work with children are gatekeepers of safety. The most powerful thing a leader can do is commit to transparency over convenience, accountability over risk avoidance, and courage over quiet exits.
If your organisation is reviewing its policies, dealing with a complex safeguarding issue, or simply want to ensure your approach is safe and legally sound, we’re here to help.
Contact us
If you would like to discuss how we can support your organisation, our team is here to help. Please contact Skye Rose, Tal Shmerling or Abbey Dalton if you would like further support.
View our dedicated page on the Childcare and Early Education Reforms and subscribe to receive updates directly in your inbox.
Disclaimer: This article provides general information only and is not intended to constitute legal advice. You should seek legal advice regarding the application of the law to you or your organisation.