Planning a reportable conduct investigation

After becoming aware of a reportable conduct concern (Section 7 of the Child and Youth Safe Organisations Act, 2023), leaders of organisations must, as soon as practicable:

• ensure the immediate safety and well-being of child/ren and/or young person/s identified
• consider any immediate action required to comply with internal policies and procedures
• submit a 3 day notification report to the Independent Regulator
• consider requirements to report to other regulatory bodies and/or mandatory reports
• investigate the reportable conduct concern or engage an independent investigator to do so
• if the matter is being investigated concurrently (by more than one organisation) consider who is best placed to conduct the investigation and establish clear communication between the organisations so each understands their role
• if the matter involves an allegation of a criminal offence, the matter must be reported to Tasmanian Police (TasPol). TasPol will advise what action, if any, the organisation can undertake to investigate while the matter is under investigation by police. The organisation is to record the police reference number.

The Independent Regulator will contact the entity upon receipt of the 3 day notification report and will oversee the investigation.

An investigation must be undertaken to establish facts about an incident, complaint or alleged conduct.

To establish facts you will:

• Breakdown the allegation/complaint or alleged conduct into elements or   parts so you can consider what evidence you would need to satisfy you that   the alleged conduct did or did not occur;
• Collect the evidence through obtaining statements from parties   involved including the alleged victim and any witnesses or consider if there   is other evidence such as CCTV recording available;
• Once you have collected the relevant evidence, you need to offer the   person the subject of the allegation an opportunity to be interviewed. This   interview provides the person with the details of the allegation and provides   an opportunity for them to give you their version of events;
• After all the evidence is collected, it must be documented and then   reviewed by the investigator to consider if there is sufficient evidence to   support a finding that the conduct did occur;
• The investigator must document their reasons for the finding;
• Depending on the finding, a decision is to be made as to whether there   is to be disciplinary or any other action to be taken and the reasons for the   action;
• If it is decided no action is to be taken, then the reasons for not   taking action must also be recorded.

An Investigation Plan will be developed to identify who will be undertaking the investigation and the steps the organisation will take to investigate to make sure the investigation proceeds in a fair and just manner.

An investigation plan helps direct the investigation process and should be developed before the investigation begins.

It will include detail about:

• the investigation's purpose
• the tasks required to carry out the investigation to the necessary standard
• who will be responsible for these tasks, including whether or not the organisation will use an independent investigator and what their role will be (e.g. making or recommending findings)
• relevant timeframes.

When developing an investigation plan, the investigator should keep in mind that the primary goal is to establish facts.

To support this information gathering process, an investigation plan should:

• clearly outline the allegations, and
• identify relevant sources of information and evidence (e.g. people who may have witnessed the alleged conduct, relevant records, CCTV).
• It is important to capture details such as dates, times, places and people, as well as a description of actions or incidents.

Questions to ask when developing an investigation plan may include:

• How will the child or young person involved in the reportable conduct concern be included and supported throughout the entirety of the investigation process?
• How will any actual or perceived conflicts of interest be identified and managed?
• How will confidentiality be maintained?
• Are there other agencies that need to be informed of the allegation? I.e. TasPol, other sector regulators, other employers in child related employment?
• How long is the investigation likely to take?
• What cultural sensitivities need to be accounted for in how the investigation runs, and what resources are necessary to address them?
• What will be the involvement of relevant parties or agencies, such as the Independent Regulator and other regulatory bodies?
• If TasPol are actively investigating a matter, has advice been sought about undertaking a concurrent investigation?

If multiple parties or agencies are investigating the same matter how will this be managed and how will information be shared e.g. who could/should lead the investigation?

Access an example investigation plan

The role of the investigator is to:

• collect and document evidence
• establish and document the facts
• prepare a report on the findings

There are several factors to consider in determining who should lead a reportable conduct investigation.

These may include assessing a person’s:

• willingness to undertake the investigation
• relationship with all parties (consider if a conflict of interest exists – see section below)
• ability to conduct the investigation (e.g. they can gather information in a fair way, and make transparent decisions backed by evidence)
• ability to be able to conduct the investigation in a timely manner.

A reportable conduct investigator may be:

• the leader of the organisation
• someone to whom the leader has delegated their legal duties under the Reportable Conduct Scheme
• an independent investigator.

In this context, an independent investigator is an independent body or person that has appropriate qualifications, training, or experience to investigate reportable allegations or reportable convictions.

Organisations may consider engaging an independent investigator when:

• there is no one within the organisation with suitable experience or training to undertake the investigation

• there are potential or real conflicts of interest

• the investigation can't be completed within a reasonable timeframe

• the investigation is highly complex and beyond the capabilities of the organisation (for example, when investigating multiple incidents, alleged victims, or stakeholders).

Questions to ask before engaging an independent investigator may include:

• What are the investigator's skills and experience, particularly in child-related investigations?

• Do they have verifiable qualifications and suitability to work with children (e.g. Registration to Work with Vulnerable People)?
• Are there any conflicts of interest or concerns about potential bias?

• What are their payment terms?

• What do their references have to say about their experience, conduct, and ability to handle investigations involving children

Note: The Office of the Independent Regulator does not approve, accredit or recommend specific independent investigators or investigation bodies.

The role of the Independent Regulator in the Reportable Conduct Scheme is to:

• oversee and monitor reportable conduct notifications and investigations
• Educate and provide advice to assist entities to identify reportable conduct and to report and investigate reportable allegations and convictions
• provide focused advice and guidance to organisation leaders and other reportable conduct investigators on how to conduct a reportable conduct investigation
• receive and assess the appropriateness of investigation findings, reasons for findings and actions

• conduct an own-motion investigation (meaning the Independent Regulator themselves does the investigation) if it is in the public interest to do so.
• To require an entity regulator to undertake an investigation in certain circumstances

To provide relevant information to other entities and authorities to protect and promote the best interests of children

The leader of an organisation cannot investigate a reportable conduct allegation made against them.

In this instance, it is likely the reportable conduct investigation will be conducted by:

• another worker within the organisation
• an independent investigator, or
• a separate body known as an entity regulator.

In these circumstances, the responsibilities on the leader of organisation detailed above, will instead sit with the person undertaking the investigation.

Reportable conduct investigations must be conducted in an impartial and objective way.

This is important due to:

• the sensitive nature of reportable conduct concerns, and
• the gravity of potential consequences when an investigation is not carried out appropriately.

Reportable conduct investigators must identify and address any actual, perceived, or potential conflicts of interest that may exist as part of the investigation planning process.

As part of the planning process, organisations should document all conflicts and actions taken to manage them.

Three types of conflicts of interest can occur:

• Actual Conflict of Interest: this means private interests directly impact the performance of professional duties. For example, a worker accused of reportable conduct is also related to the leader of the organisation they are employed by. Depending on the situation, the leader could not assess the allegation in an unbiased way.
• Perceived Conflict of Interest: this means it might appear to others that private interests could impact professional duties. For example, a worker accused of reportable conduct is part of a sports group the leader of the organisation is also a part of. Depending on the situation, the leader might be able to assess the allegation in an unbiased way, but others may see it as a conflict of interest.
• Potential Conflict of Interest: this means private interests could impact the performance of professional duties in the future, regardless of whether actual influence occurs. For example, an independent investigator hired on behalf of the leader of an organisation to investigate a reportable conduct concern intends to apply for a role with the organisation in the future. This could become a conflict of interest if they are successful in gaining a role due to a vacancy caused by the outcome of the reportable conduct investigation.

Where a conflict of interest exists or might be perceived, it is critical to declare, assess, and address the issue before commencing an investigation.

Strategies for managing conflicts of interest may include:

• allocating different responsibilities
• involving third parties for oversight
• engaging external investigators.

Procedural fairness (sometimes referred to as ‘natural justice’) in the context of a reportable conduct investigation means:

• a worker who is the subject of a reportable conduct investigation is given a reasonable opportunity to put their case forward
• the investigator is impartial
• the investigation does not have any pre-determined findings.

Planning should outline how a reportable conduct investigation will uphold procedural fairness by being carried out in a fair and equitable manner

Organisations may show procedural fairness by:

• maintaining confidentiality
• identifying and managing conflicts of interest or bias, and managing them
• ensuring the worker is informed about the investigation process and progress
• conducting a timely investigation
• accurately describing the allegations
• providing the worker with notice of the allegations and an opportunity to respond, either in writing or through an interview
• offering the option of a support person during interviews
• explaining the potential consequences of findings.

Under the Child and Youth Safe Organisations Act 2023, Part 7, procedural fairness is also afforded to workers subject to allegations through:

• the right to an internal review of a 'reviewable decision'
• the right to external review

the ability to have certain material considered in the investigation.