How to identify reportable conduct allegations. Part 2 in a reportable conduct investigation series
Identifying reportable conduct allegations
How to identify reportable conduct allegations before the investigation starts
Identifying whether a complaint may involve reportable conduct is one of the most important early steps in any child-related workplace investigation. If the issue is missed, the organisation may fail to notify the relevant regulator, delay child safety action, overlook police or child protection issues, or start an internal process that is not suited to the seriousness of the allegation.
If the issue is assessed too loosely, the organisation may over-escalate a matter that could have been managed through ordinary workplace procedures. The key is to make a careful, documented assessment at the allegation stage.
This article focuses on the NSW Reportable Conduct Scheme. Other Australian jurisdictions have their own schemes, definitions and reporting requirements, so organisations should check the relevant legislation and regulator guidance for the jurisdiction they operate in.
What is a reportable allegation?
Under the NSW Reportable Conduct Scheme, a reportable allegation is an allegation that an employee has engaged in conduct that may be reportable conduct. The Office of the Children’s Guardian explains that the scheme is allegation-based. The notification obligation is triggered when the head of a relevant entity becomes aware of an allegation that an employee may have engaged in reportable conduct, or may be the subject of a conviction involving reportable conduct.
This is a low threshold.
The organisation does not need proof that the allegation is true before deciding whether it is reportable. The OCG guidance states that an entity does not need evidence that the allegation is true, and does not need to form any belief that the alleged conduct occurred, before notifying a reportable allegation. That point is often misunderstood.
The allegation stage is about identifying whether the alleged conduct may fall within a reportable conduct category. The investigation stage is where evidence is gathered, tested and assessed.
Start with the conduct, not the label
Complaints are often made in general language.
A parent may say an educator was “rough” with a child.
A student may say a teacher made them feel “creepy”.
A worker may report that a colleague has “poor boundaries”.
A young person may say they were “humiliated” or “picked on”.
Those descriptions are important, but they are usually starting points. The organisation needs to identify the actual conduct being alleged. Useful early questions include:
What exactly is the worker alleged to have done or said?
Who was the child or young person involved?
When and where did it allegedly occur?
Was the conduct directed at the child, in the presence of the child, or connected to the child?
Was there physical contact?
Was there sexualised language, behaviour or communication?
Was there a failure to supervise, protect, provide care or seek medical assistance?
Is there any suggestion of emotional or psychological harm?
Could the alleged conduct amount to a criminal offence?
Does the conduct fall within a reportable conduct category?
This assessment should be recorded. Even if the organisation decides the matter is not reportable, the reasons should be clear.
The reportable conduct categories
In NSW, reportable conduct includes:
sexual offences
sexual misconduct
ill-treatment of a child
neglect of a child
assault against a child
offences under sections 43B or 316A of the Crimes Act 1900
behaviour that causes significant emotional or psychological harm to a child.
These categories should be considered carefully and separately. Some allegations may fall into more than one category.
For example, an allegation involving rough physical handling may need to be assessed as possible assault. If the same incident also involved humiliating, degrading or cruel conduct, ill-treatment may also need to be considered.
An allegation involving inappropriate comments about a child’s body may need to be assessed as sexual misconduct. If the conduct may meet the elements of a criminal offence, a sexual offence category may also need to be considered.
Sexual offences
A reportable allegation of a sexual offence involves an allegation that an employee engaged in conduct that may be a sexual offence under NSW, another state or territory, or Commonwealth law, committed against, with or in the presence of a child.
The OCG gives examples including sexual touching of a child, grooming offences, child abuse material and voyeurism. It also makes clear that a sexual offence does not need to be the subject of a police investigation or criminal charge before it can be categorised as a reportable allegation. The question at the allegation stage is whether the elements of the criminal offence may be met on the information available.
Where the alleged conduct may be criminal, organisations should be careful about taking investigative steps before considering police involvement.
Sexual misconduct
Sexual misconduct is broader than sexual offences. It concerns conduct with, towards or in the presence of a child that may be sexual in nature, where the conduct is not a sexual offence.
The OCG guidance gives examples including sexual comments, sexual conversations or communications, descriptions of sexual acts without a legitimate reason, and comments to a child expressing a desire to act in a sexual manner towards the child or another child.
This category requires careful judgment.
Some conduct will be obviously sexual. Other conduct may need to be assessed by looking at the full context, including the words used, the relationship between the worker and child, any pattern of conduct, whether the conduct involved innuendo or undertones, and whether there was a legitimate purpose.
For example, a discussion about sexual health in an authorised sex education lesson may have a legitimate context. A graphic or personal sexual discussion outside an appropriate context may raise a very different issue.
Assault
A reportable allegation of assault involves conduct that may involve the intentional or reckless application of physical force against a child without lawful justification or excuse. It can also include conduct that causes a child to apprehend the immediate and unlawful use of physical force.
This category needs a practical and contextual assessment.
The OCG guidance recognises that some use of physical force may be reasonable for the discipline, management or care of a child, taking into account the child’s age, maturity, health, relevant codes of conduct and professional standards. It also recognises that force may be trivial or negligible in some circumstances, provided the matter has been investigated and recorded in accordance with appropriate procedures.
The early assessment should consider:
the nature of the contact
the level of force alleged
whether the child was injured
whether there was potential for serious injury
the age, vulnerability and needs of the child
the worker’s role and authority
whether the conduct was connected to care, safety, management or discipline
whether the conduct was reasonable in the circumstances.
An allegation involving significant force, injury, humiliation or punitive physical handling should be treated seriously and assessed promptly.
Ill-treatment
Ill-treatment involves alleged conduct towards a child that may be unreasonable and seriously inappropriate, improper, inhumane or cruel.
The OCG guidance states that ill-treatment can include one-off conduct or a pattern of conduct assessed in totality. Examples include excessive or degrading demands, a pattern of hostile or degrading comments or behaviour, and inappropriate behaviour management towards a child.
This category is particularly important where the allegation involves humiliation, intimidation, targeting, degrading treatment or misuse of power.
Examples may include repeatedly belittling a child, using cruel behaviour management strategies, isolating a child in a degrading way, or deliberately frightening a child as a form of control.
The early assessment should consider the seriousness of the conduct, the child’s vulnerability, whether there was a pattern, and whether the conduct was seriously inappropriate in the circumstances.
Neglect
Neglect concerns a significant failure to provide adequate and proper food, supervision, nursing, clothing, medical aid or lodging for a child, where that failure causes or is likely to cause harm.
The NSW definition is specific. The OCG guidance explains that neglect may involve an ongoing situation or a single significant incident, provided the relevant elements are met. It also explains that the failure must fall within one of the listed categories, such as supervision, medical aid or lodging.
Examples may include:
failing to supervise children where harm is likely
failing to seek medical treatment
exposing a child to a harmful environment
failing to protect a child from known risks.
The early assessment should focus on the duty owed by the worker, the nature of the failure, the risk or harm to the child, and whether the failure was significant.
Significant emotional or psychological harm
This category requires careful assessment because not every distressing interaction will meet the threshold.
The OCG guidance refers to conduct that may involve intentional or reckless behaviour that is very clearly unreasonable, with a causal link to significant emotional or psychological harm to a child. It also explains that short-term or minor emotional harm will not usually meet the significant harm threshold.
Relevant considerations may include:
the nature of the alleged conduct
whether the conduct was intentional or reckless
whether there was a pattern
the child’s presentation before and after the conduct
whether there is evidence of significant harm
whether the worker’s conduct was a significant contributor to the harm.
This category should be approached carefully and evidence should be gathered in a way that does not worsen the child’s distress.
Offences involving concealment or failure to reduce risk
The NSW scheme also includes certain offences under the Crimes Act 1900, including concealing a child abuse offence and failing to reduce or remove the risk of a child becoming the victim of child abuse.
The OCG guidance describes these as complex offences and advises relevant entities to report to and consult with police when allegations of this type are raised. It also explains that a reportable conduct investigation may still be required even if police choose not to investigate, where the elements of the offence are alleged.
These matters can arise where a worker or senior employee allegedly knew of a serious child safety risk and failed to take appropriate action.
Record the rationale
A good early assessment should result in a short written record.
That record should identify:
the information received
who received it
when the head of entity or delegate became aware of it
the child or children involved
the worker involved
the possible reportable conduct category or categories
whether police, child protection or the regulator were contacted
what immediate risk action was taken
what evidence was preserved
the reasons for assessing the matter as reportable or not reportable.
This record may later be important if the regulator reviews the organisation’s response or if the matter is challenged.
Final point
Identifying a reportable allegation is an early threshold assessment. It requires the organisation to look carefully at the alleged conduct, the child safety context, the relevant statutory category and any immediate risk.
The organisation does not need to prove the allegation before notification. It does need to identify whether the alleged conduct may be reportable conduct and then respond in a structured, fair and properly documented way.
Insight Investigations conducts independent workplace and reportable conduct investigations for organisations across Australia.
For assistance with a reportable conduct matter, contact alex@insightinvestigations.com.au