Conducting an investigation

Leaders of organisations that are required to comply with the Reportable Conduct Scheme are permitted to share personal information in certain circumstances.

The Department of Justice have created an  Information Sheet - Information sharing under the CYSOF (justice.tas.gov.au) to help organisations.

If police are investigating the matter, it is important to have early and regulator contact with Police to ensure that, where possible, a criminal investigation is not compromised. Police will provide advice in relation to  undertaking a concurrent investigation.

If multiple entities are investigating the same matter, it is important to agree an approach e.g. who will lead the investigation, how information will be shared, to avoid duplicating the investigation process.

All parties should be kept informed at each stage of the investigation. Communication methods may include verbal or written correspondence. When verbal advice is given or received it is good practice to keep notes on the key aspects of the conversation.

This includes communication with the alleged victim(s) about process. If the concern relates to possible criminal conduct, you should communicate to the alleged victim(s) or their family if police have been notified.

Communicate openly and be transparent with what has been shared, so the child/young person is fully aware. Also remember the files are records of their lives and will potentially be read by them in future years.

You should also communicate clearly to the alleged of the allegation against them.

Access an example letter of allegation.

During the reportable conduct investigation process, the investigator will collect material that may be relied upon as part of the investigation.

Evidence is collected to establish facts that either support or disprove the allegation of reportable conduct.

It is crucial to gather all evidence, regardless of whether it supports or disputes the alleged behaviour, as this is a fundamental aspect of ensuring procedural fairness.

Questions to ask when collecting evidence may include:

• What evidence is required to substantiate or not substantiate the reportable conduct concern, as outlined in the investigation plan?
• What types or sources of evidence are relevant, reliable and able to prove (or disprove) the allegation?
• Is a site inspection necessary as part of the investigation? If so, is there a clear purpose for the site inspection, outlining why they are undertaking the inspection and specifying the evidence or information they are seeking?
• How will a site inspection be documented?
• Is the investigator and other involved parties mindful of their roles and responsibilities in evidence collection, to ensure that all collected evidence is thoroughly documented?
• Do any types of evidence need to be immediately secured (e.g. CCTV footage, emails, downloads)?

Sources of evidence will vary for each investigation but may encompass:

• Physical evidence: Documents such as emails or photos; records like rosters or incident reports; or objects like mobile phones or computers.
• Site inspections: May lead to the investigator taking photographs of locations or creating diagrams.
• Direct evidence: Evidence from the alleged victim, their parents or caregivers, witnesses recounting what they saw, heard, or did, and statements from the subject of the allegation. In some cases, it might be necessary to gather information from individuals who had conversations or possess other details about the alleged event.

Expert evidence: Evidence provided by individuals with technical or specialised knowledge, such as doctors, psychologists, or computer experts.

It is crucial to ensure that the compilation and management of evidence is transparent and well-documented. Each individual piece of evidence collected should be thoroughly documented.

Original documents and evidence obtained during the investigation should be securely stored in their original condition. It is good practice to document the collection process and identify who handled the evidence before it reached the investigator.

Anyone involved in the investigation should be able to trace and justify any material received, from the moment it is received until the conclusion of the investigation.

For example, if the organisation receives a copy of an email from a witness regarding the alleged conduct, it is appropriate to record the time and date of receipt and the source.

Evidence gathered during an investigation should be kept secure and confidential. This can include restricting access to authorised individuals in the organisation.

Records of the recovery, storage, and movement of evidence should be kept, and procedures be in place to deal with breaches of confidentiality.

Learn more about record keeping practices in the section below.

The person conducting the investigation may consider interviewing:

• the person that raised the reportable conduct concern
• the worker subject to the reportable conduct concern
• the alleged victim, whether a child or young person
• the child or young person’s parent/s or carer/s potential witnesses to the behaviour
• other workers of the organisation
• other people supporting the child or young person e.g. general practitioner, psychiatrist etc.

Interviews should be conducted in a logical and appropriate sequence.

Generally, organisations should first interview the person who notified the organisation of the reportable conduct concern.

This interview is generally undertaken as part of an investigator’s initial inquiries to better understand what is alleged to have happened and to plan how the investigation should be undertaken.

The order of the remaining interviews will depend on the importance of their evidence and their relationship with the subject.

Interviews should be conducted in a timely manner (context dependent) to reduce the risk that people will start to forget the details of the incident/s.

This is particularly relevant to the alleged victim and witnesses who are children or young people.

Investigators planning and conducting interviews may:

• pre-plan interviews by having a general understanding of the information interviewees may provide
• need to get consent from the parent/guardian to interview a child or young person if they are under 16 years of age
• need to consider what the approach to the interview needs to be to support the interviewee, particularly if interviewing a child or young person
• all interviewees should be informed of confidentiality requirements
• offer interviewees the option to be interviewed offsite (to prevent interference or intimidation)
• offer interviewees the option to have a support person present (noting the support person should not be connected to the allegation and not be the same support for multiple people)
• interviews should follow a logical sequence, and interviews should be flexible enough to address any new allegations that may arise

time between interviews should be minimised to prevent discussions between persons involved in the allegation.

Throughout the interview process, detailed records should be kept of:

• the interview planning process
• pre-interview contact with the interviewee
• any decision not to interview a child or young person, including the rationale for making the decision (see section below interviewing children and young people)
• the interview (this may be a recording if consent is provided) including details of the questions and responses, who was present and start and finish times.

Where an interview is not being recorded, the investigator should take very detailed notes of the discussion.

Interview notes should be written word for word as much as possible. It may assist to have a second person in the interview room for the purpose of recording questions and responses and to verify what took place

Records should also be made of the time, date and place where the interview occurred.

Where possible, records ought to be, signed and dated by all parties.

It is important that interviews are conducted in an inclusive manner and that cultural safety is upheld during the interview process.

Investigators should consider how to promote the participation of all people who are relevant to an investigation of reportable conduct including:

• Aboriginal or Torres Strait Islanders
• Persons who identify as same-sex attracted, intersex or gender diverse
• People with a disability
• Culturally and linguistically diverse people.

Inclusivity during the interview process may look like:

• creating a safe and respectful environment that is welcoming
• recognising and avoiding stereotypes
• working to develop trust and rapport
• offering the opportunity for additional support (e.g. a familiar person to attend an interview)
• offering assistance to help tell their story (e.g. through engaging an interpreter or communication specialist).

In creating an inclusive and culturally safe environment, it is important that:

• people should be treated as individuals, not a homogeneous group
• investigators are aware of unconscious bias and how this can impact their understanding and assumptions.
• Unconscious bias is defined as unconscious forms of discrimination and stereotyping based on race, gender, sexuality, ethnicity, ability, age and so on. It differs from cognitive bias which is a predictable pattern of mental errors that result in us misperceiving reality and, as a result, deviating away from the most likely way of reaching our goals

where appropriate, advice from specialist service providers should be sought to ensure interviews are conducted in an appropriate, safe and respectful way.

Reportable conduct investigations may involve interviewing the child or young person who allegedly experienced the reportable conduct.

During a reportable conduct investigation, it is crucial to create an opportunity for any child or young person who wants to share their account with the opportunity to do so,and support them to do so in a safe way.

For children aged up to 16 years of age, organisation should advise the parent or guardian of any child who is involved that an allegation has been made and (depending on their age and other circumstances) seek consent to interview their child.

Young people (aged 16 to 17) can provide their own consent to be interviewed.

It is important to note that although consent may be provided by the parent, guardian or the young person themselves to be interviewed, the decision to participate in an interview rests with the child or young person.

Children and young people should always be provided the opportunity for a support person to be present at the interview.

Interviewing children or young people requires a different approach to interviewing an adult and requires a careful and considered approach.

See responding to a disclosure in a child-centred way

Key principles investigators may wish to consider include:

• Offering choice: Children and young people need to have a say in how they wish to provide evidence during a reportable conduct investigation. This can look like:
  • Supporting children and young people in making their own decision about how they wish to share their account. This includes providing adequate information so the decision is informed.
  • Ask the child whether they wish to participate in an interview or other method to collect their experience (e.g. allowing them to draw or write down their account).
• Consider the environment: Organisational environments can make it easier or harder for children and young people to tell their story. Taking steps to humanise your environment may make a child or young person more comfortable, and therefore more likely to share their experience. This can look like:
  • Asking children and young people what would make them comfortable.
  • Having spare pens and paper available in case they need to write down or draw an experience of harm.
  • Having fidget toys on hand.
  • Having a weighted blanket available.
  • Having photos of family and/or friends on your desk, artwork, or other things that make your area ‘human’ and warm.
• Providing support: Children and young people who have been harmed need utmost support and care. They also need to be assisted to access other supports, such as counselling services and trusted adults who are removed from the investigation process. This can look like:
  • Offer the opportunity for a support person to be present at the interview.
  • Having a list of local support services to refer a child or young person to, if they need or want it.
  • Offer supports to other children or young people who may be indirectly affected by the reportable conduct and the investigation.
• Seeking specialist expertise: To avoid causing harm to the child or young person and to ensure that the best evidence possible can be gathered from the child, organisations should consider seeking expert advice about how and when to interview a child or young person. This can look like:
  • Children or young people are interviewed by someone with relevant specialist skills in child development or trauma-related behaviours.
• Trauma-informed: The interview process is undertaken with an understanding and being sensitive to the fact that a child or young person may have experienced difficult or painful events in their life which has an ongoing effect on them. This can look like:
  • Minimise the need for multiple interviews through techniques such as video recordings
  • Taking a ‘whole story’ approach (see Powell507446-Published.pdf (griffith.edu.au)) to interviewing a victim-survivor.
• Individualised and flexible: Children and young people are individuals and should be treated as such. Their comprehension and communication abilities will vary considerably, even among children of the same age, depending on their background, physical and mental health and experiences. This can include:
  • taking into account the age and developmental stage of the child and the child’s level of maturity
  • using child appropriate language
  • being flexible to the needs of the child or young person during the interview (e.g. take breaks as required).
• Rights-based: The rights of the child or young person undergoing the interview must be respected. This can look like allowing children and young people the right to:
  • take their time
  • refuse to participate
  • choose what information to disclose, when, and in what detail
  • refuse a request for information
  • have feelings and express them if they choose to do so
  • make mistakes or get things wrong
  • be themselves.

In addition to the above, investigators interviewing should:

• ensure the approach allows opportunity to build rapport with the child or young person
• explain the purpose of the interview
• understand the developmental stage of the child and use appropriate language accordingly
• ask simple and clear questions, one question at a time
• limit the number of people present
• minimise distractions and interruptions
• keep interviews as brief as practicable.

Investigators interviewing should avoid:

• asking leading questions
• asking the child to re-enact the situation
• ask more than one question at a time
• Interviewing the child more times than is necessary.

After 30 days of becoming aware of the reportable allegation or reportable conviction, the head of an organisation must provide and update report to the Independent Regulator, including:

• all known detailed information about the reportable allegation or reportable conviction; and
• whether or not the leader of the organisation has taken, or intends to take, any action in relation to the worker and the reasons why the head has taken, or intends to take or not to take, any such action; and
• any written submissions provided by the worker to the leader of the organisation.

Report a concern.

Access information on legal obligations following an investigation.

Detailed records made during a reportable conduct investigation allow external bodies (including the Independent Regulator) to assess the quality of an organisation's investigation.

Notes should be recorded either at the time of each stage of the investigation or within 24 hours.

The following list includes some examples of types of records that may be made and kept during a reportable conduct investigation:

A reportable conduct concern is raised:

• An accurate account of what has been said and by whom
• Notifications made to authorities including the Independent Regulator, Police, the Strong Families Safe Kids Advice and Referral Line (ARL) or Registration to Work with Vulnerable People Registrar.

Investigation planning:

• An investigation plan, such as this example investigation plan
• An initial risk assessment, including what the identified risks are and measures to mitigate those risks
• Details of actions taken at the start of the investigation regarding the immediate safety of the child or young person and any action taken with regard to the staff member. Undertaking the investigation:

• Interviews, including the questions and responses, location of the interview, who was present and the start and finish times of the interview
• Any decisions made, both during and at the end of the investigation, including their rationale, the position and name of the person making the decision
• Any other allegations that emerge during an investigation. This includes what the organisation did about new allegations, particularly if they relate to new reportable allegations or concerns about children or young people being at risk whilst in the care of an organisation.

Finalising the investigation:

• An investigation report that details the allegation, the investigation process, evidence and the findings in relation to each allegation (including the rationale for the finding)

A final risk assessment (which includes any final decision about the employee and the factors that have been considered) and any subsequent action that is to be, or has been taken.

Record keeping checklist:

• Ensure all records are legible, signed, and dated
• Confirm accuracy and consistency in record-keeping
• Keep to the facts and do not include your opinion of events
• Include all notes, even if they are rough, in the file
• Document all discussions and save them on file, including emails sent and received
• Document all advice, both given and received
• Document all decisions along with their rationale.

In relation to storing records related to reportable conduct, organisations may:

• Have an organisational policy concerning information storage and access to records
• Issue clear guidelines for workers regarding record-keeping
• Have a designated worker to ensure the record-keeping system is regularly reviewed and compliant with record-keeping obligations
• Be mindful of confidentiality and define who can access the records
• Store records in a safe and secure place for the required period

Keep children, young people and their families informed about the type of records made about their complaint, how long the records will be kept and how to access their records.