the brief.
workplace investigations under the reportable conduct scheme.
tyson brennan.
mervin laureano. 01 july 2025.
workplace investigations under the reportable conduct scheme.
The Reportable Conduct Scheme (Scheme) aims to improve oversight of how organisations respond to allegations of child abuse and child-related misconduct. This BLP brief summarises the key information outlined in the Commission for Children and Young People’s (the Commission) Guide for Organisations: Investigating a Reportable Conduct Allegation.
conducting an investigation
1. assessing the reportable allegation
what are reportable allegations?
A reportable allegation refers to any information that leads a person to reasonably believe that a person has committed reportable conduct. The Act establishes five types of reportable conduct, being:
·sexual offences (against, with or in the presence of, a child)
·sexual misconduct (against, with or in the presence of, a child)
·physical violence (against, with or in the presence of, a child)
·behaviour that is likely to cause significant emotional or psychological harm
·significant neglect
In some instances, allegations made by a child will contain more than one type of reportable conduct. Here, it is important to consider each allegation separately.
other reporting requirements
Organisations must recognise that their reporting obligations may extend beyond notifying the Commission of reportable conduct. Allegations involving potential criminal behaviour must be reported immediately to Victoria Police, while concerns that a child may require protection should also be referred to the DHHS.
2. establishing an investigation
planning the investigations
Effective investigation relies on thorough planning, which ensures that the process is professional, methodical and resource-efficient. Careful planning helps identify and preserve all relevant evidence, minimises the risk of influence, and reduces the chance of overlooking key information. It also protects alleged victims from re-traumatisation, ensures all relevant witnesses are identified and interviewed appropriately and upholds procedural fairness for the subject of the allegation.
conflicts of interest
Leaders must ensure that investigators are free from conflicts of interest that could create actual or perceived bias in handling reportable allegations. Conflicts fall into three categories: actual conflicts, where the investigator must not conduct the investigation; potential conflicts, which must be reported to the organisation’s head and appropriate managed; perceived conflicts, which should also be reported and managed to maintain fairness and integrity.
letter of allegation
This is a document written by or with the head of the organisation’s approval, which clearly informs the subject of the investigation about the details of the reportable allegations made against them. This is a crucial step in providing procedural fairness to the subject.
These letters should outline each allegation and contain enough information for the subject to understand what they are, so they can respond accordingly. Elements to a letter of allegation include:
- The name and age of the child who is the alleged victim
- The details of the reportable allegation
- When the reportable conduct is alleged to have occurred, including the date and time if known
- Where the reportable allegation is said to have occurred, including a description of the physical location or the address if it is known.
While the subject of an allegation has the right to be informed and give an opportunity to respond, this usually occurs only after key evidence – such as witness statements, documents, and physical material – has been gathered. Alerting them too early comprise the investigation by creating risks of evidence being altered or destroyed, or witnesses being influenced.
3. conducting a thorough investigation
overview
Organisations should note that the evidence collected should always be relevant to the investigation, reliable and probative to the investigation. Importantly, investigators should also ensure that the original documents and other evidence collected throughout the investigation are stored securely in their condition.
conducting interviews
All relevant witnesses should be identified and interviewed where possible, as multiple sources of evidence strengthen the reliability of findings, even if one witness alone may be sufficient. Both the alleged victim and the subject of the allegation are generally expected to be interviewed unless there is a valid reason not to. Special care and planning are required when interviewing children, as the approach differs significantly from interviewing adults. When interviewing a child, investigators must consider factors such as whether the child has been previously interviewed, their age, maturity, and developmental stage, as well as their cultural safety and inclusion. They should also consider the nature and impact of the allegation, any disability the child may have, and what support the child requires throughout the process.
promoting inclusion and participation of all witnesses
Investigators must prioritise inclusion and participation to ensure that witnesses feel safe, respected and heard when sharing sensitive information, leading to stronger evidence and more reliable outcomes. Investigations should be conducted in a safe and culturally responsible manner that is respectful, flexible and mindful of cultural difference. Furthermore, they should actively avoids stereotypes or generalisations, while building rapport with individuals from diverse backgrounds.
investigations involving family violence
There will be instances when an investigator is required to investigate a reportable allegation that relates to family violence committed within the home. In these circumstances, investigators must ensure that the matter has been reported to the police and suspend the investigation until police advise. Where the allegation may have already been investigated by Victoria Police, it is recommended that the investigator contact the police investigator, as they may be able to provide some information, guidance or advice relevant to the reportable conduct investigation.
order of interview
An investigation ordinarily begins with interviewing the person who reported the allegation, to assist in clarifying the issues and outlining the process. All other interviews should follow promptly to prevent memory loss, confusion or influence of evidence, particularly for child victims or witnesses. The order of interviews depends on the importance of the evidence, the person’s connection to the subject and their availability. Importantly, minimising delays is crucial to reducing the risk of witnesses influencing one another or becoming uncertain about their recollections.
procedural fairness
Under the Act, subjects of reportable allegations are entitled to natural justice, also known as procedural fairness.
This requires that they are informed of the allegations and their scope, given written notice before any interview, and allowed to have a support person present. They must also be provided the opportunity to respond to the allegations and any evidence, be made aware of potential consequences, and have a fair chance to present their side of the story.
Importantly, their responses must be properly considered before any final decision is reached.
confidentiality
The details of any investigation into a reportable conduct should be kept confidential, unless there is a good reason not to do so. All people involved in an investigation should be told that the investigation must be kept confidential except to the extent that there is a need to inform those who have a need to know (for example, to manage any ongoing risks to children, to obtain legal advice or for a child to speak with their parent, guardian, etc.
risks during the investigation
When an allegation arises, the investigator must conduct a risk assessment in consultation with the head of the organisation to determine what measures are needed to reduce risk. This assessment should consider the seriousness of the allegation, the vulnerability of the children involved, the subject’s role within the organisation and whether they have unsupervised access to children.
4. assessing the evidence
standard of proof
In all investigations, the standard of proof should be the balance of probabilities. That is, the investigator must consider whether it is more likely than not the reportable conduct has occurred.
Assessment of evidence
A decision-maker must assess the strength of evidence by considering its reliability, plausibility, consistency, and source, as well as whether it is supported or contradicted by other evidence. They must also ensure the subject of the allegation has had the opportunity to comment on the evidence and share their side of the story before any conclusions are drawn.
5. finalising an investigation
preparing a report
An investigator might be required to make findings or may be required to make recommendations to assist the decision-maker to make findings.
Regardless of who will make the findings, when an investigator finishes an investigation, a report must be prepared for the head of the investigation.
The report should reflect the terms of reference and should establish the following elements:
- Details of each allegation
- A summary of the approach, evidence obtained, assessment of the evidence and the importance given to each piece of evidence in the investigation
- The findings of fact made and the evidence relied upon in reaching them
- Recommendations of the investigator about the findings that should be made
6. Making or recommending findings
Some investigations require the investigator to make findings, whilst others will require them to make recommendations to a subsequent decision maker within the organisation.
In making these findings or recommendations, it is imperative that the investigator understands the various types of findings used by the Commission under the scheme:
- Substantiated: the reportable conduct occurred on the balance of probabilities
- ·Unsubstantiated – insufficient evidence: there was significant strong evidence that supports the allegation, but the evidence falls short of being able to make a substantiated findings.
- Unsubstantiated – lack of evidence of weight: a lack of evidence made it too difficult to fully investigate an allegation despite the investigator’s reasonable efforts.
- Unfounded: a positive finding, on the balance of probabilities, that the alleged reportable conduct did not occur.
- Conduct outside the scheme: the conduct as alleged occurred, but in all of the circumstances was found not to be reportable conduct for the purposes of the Act.
Contact us today to discuss your needs.
Tyson Brennan, Principal Solicitor.
mervin laureano, Law clerk.
