Mar 17

Investigating Reportable Conduct: Developments in NSW since the Royal Commission

Anyone who has had the task of investigating allegations of workplace misconduct will know that it can be a taxing and high stakes exercise for all involved. The need for thoroughness and attention to detail on the part of the investigator must not be allowed to outweigh the need for sensitivity  towards the participants, such as where they may have suffered trauma or harm from incidents of bullying, harassment, sexual assault or workplace violence.

In many ways, the challenges of workplace investigations are magnified where the allegations concern mistreatment or abuse of children or young people. These investigations require an investigator with specialist expertise, high levels of resilience and a deep understanding of trauma informed practice, as well as the ability to navigate any relevant legislative scheme in place (known as a ‘reportable conduct scheme’). Such schemes currently exist in NSW, Victoria and the ACT, and generally cover organisations which have a high degree of responsibility for children or which engage in activities that involve a heightened risk of child sexual abuse. In general, such schemes provide for the independent oversight of relevant organisations’ handling of certain allegations of child abuse and mistreatment made against its workers. Such schemes operate separately and in addition to any other obligations to report such allegations to external authorities (such as police or child welfare authorities). Whilst the scope of schemes varies, they generally cover child-related organisations in education, early childhood, health, community service and youth justice and various other services to children.

The Royal Commission context

The Royal Commission into Institutional Responses to Child Sexual Abuse highlighted the resounding failures of institutions to respond appropriately to complaints of child sexual abuse over generations, with this year marking 5 years since the release of the Final Report. The Royal Commission heard from countless victims and survivors, commenting in its Final Report that:

Many institutions we examined did not have a culture where the best interests of children were the priority. Some leaders did not take responsibility for their institution’s failure to protect children. Some leaders felt their primary responsibility was to protect the institution’s reputation, and the accused person. Many did not recognise the impact this had on children. Poor practices, inadequate governance structures, failures to record and report complaints, or understating the seriousness of complaints, have been frequent.

The need for improved institutional responding and reporting was a major theme of the Royal Commission’s Final Report, with recommendations aimed at improving the reporting to external authorities, enhancing institutional complaint handling frameworks and ensuring the implementation of nationally consistent reportable conduct schemes.

Another key recommendation of the Royal Commission was a set of 10 Child Safe Standards to make institutions safer for children, based on its extensive research, case studies, private sessions and consultations. These Standards were designed to provide a systemic framework for organisations to address risks to child safety, with Standard 6 being “Processes to respond to complaints of children sexual abuse are child focused”.

The NSW approach – recent changes

In NSW, a reportable conduct scheme was first established in 2001 and was used as a model for the schemes established several years later in Victoria and the ACT. Although the Royal Commission recommended that all States and Territories adopt a scheme based on the NSW approach, a scheme is yet to commence in the other Australian jurisdictions.

In recent years, a number of changes have been made to the NSW scheme in line with recommendations arising from the Royal Commission. These include:

  • Broadening the scope of the scheme to include religious bodies; and
  • Locating responsibility for the reportable conduct scheme with the Office of the Children’s Guardian (rather than the NSW Ombudsman) which also administers the Working with Children Check and has other statutory functions relating to child safety.

Also in NSW, the Child Safe Scheme (incorporating 10 Child Safe Standards recommended by the Royal Commission) commenced operation on 1 February 2022. The Scheme is administered by the Office of the Children’s Guardian which has powers to monitor, investigate and enforce implementation of the Standards, and requires certain child-related organisations to implement the Standards through their systems, policies and processes.

Standard 6 relates to complaint handling processes and requires that:

  1. The organisation has a child-focused complaint-handling system that is understood by children, staff, volunteers and families;
  2. The organisation has an effective complaint-handling policy and procedure which clearly outline roles and responsibilities, approaches to dealing with different types of complaints and obligations to act and report;
  3. Complaints are taken seriously, responded to promptly and thoroughly, and reporting, privacy and employment law obligations are met.

Child-related organisations in NSW, and elsewhere, would be wise to ensure they have a complaint-handling system in place which reflects the above principles, and should ensure they are embedding a culture of continuous improvements in their complaint handling practices. As part of this framework, relevant organisations need to ensure their investigations can withstand external scrutiny, which requires the engagement of an investigator with appropriate expertise and impartiality.

Worklogic consultants can assist child-related organisations with a range of services, including conducting investigations into allegations of mistreatment of children under reportable conduct schemes, reviewing of policies and procedures and providing reportable conduct training.

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