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Information for Diocesan workers subject to investigation

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Being subject of alleged misconduct

The Diocese promotes an absolute commitment to the safety, welfare and well-being of all children and vulnerable adults. We pay particular attention to those who are part of our faith communities in parishes; are receiving assistance through CatholicCare Social Services, DARA or other diocesan community programs; or are enrolled at a Catholic systemic school or St Nicholas Early Education Centre.

As part of this commitment, any allegation relating to a diocesan worker acting in an inappropriate or abusive way towards a child or vulnerable adult is taken seriously and where appropriate, an inquiry into the allegations may be conducted.

The diocesan worker subject of the allegation is known as the respondent. The term is accurate. It means one or more allegation has been made about the worker’s conduct and they are asked “to respond” to the proposition they behaved in the alleged manner. The term avoids emotive terms such as “the accused” or “alleged abuser”, or Police terms such as “person of interest”.

Any diocesan worker may be the subject of an allegation, or may become the respondent in an investigation. The Diocese does not assume the respondent has done anything inappropriate or abusive. The Office of Safeguarding (OoSG) has the responsibility to oversee or conduct an investigation to ascertain whether there are sufficient grounds to establish the alleged conduct did occur.

This webpage is an attempt to provide detailed but concise advice on what should occur when a diocesan worker is the respondent in an investigation.

The nature of diocesan investigations

Diocese investigations are:

Catholic Professional Standards Ltd (CPSL) has been empowered to establish and audit the National Catholic Safeguarding Standards on behalf of the Catholic Church in Australia.

Employed investigators conduct our inquiries, not statutory officers, and they are not part of the criminal justice system. There is no “presumption of innocence” because innocence or guilt is not considered. Diocesan investigations apply the civil standard “on balance of probabilities”, not the higher criminal standard of “beyond reasonable doubt” nor the canonical standard “moral certitude”.

Derived from Canon Law, it is simply a process of attempting to elicit the truth. The pursuit of evidence is impartial; the diocesan investigator has no interest in “proving” or “disproving” allegations. The intent of the investigator is to maximise their ability to make as fully an informed decision as is reasonably possible. Diocesan investigations are process driven, not results driven.

Diocesan investigations are confidential. All parties involved in a diocesan investigation are expected to respect the confidentiality of the process.  A serious breach of confidentiality can affect the integrity of an investigation.

Diocesan investigations are procedurally fair to those parties whose interests may be affected by the inquiry, primarily the respondent but also the alleged victim. To the Diocese, a procedurally fair investigation requires that:

  • the investigator acts without bias and there are no known unresolved conflicts of interest during the process
  • the respondent has sufficient information to be able to respond to any allegations made against them or the grounds for any adverse decisions or comments made about them
  • the respondent has reasonable opportunity to respond (to put their case), whether at interview or in written submission
  • all parties relevant to the investigation receive an equitable hearing, considering all submissions and making all reasonable inquiries before making a finding
  • investigations are conducted without undue delay, allowing for the pre-eminence of criminal or statutory investigations being resolved before diocesan investigations.

Determining the seriousness of an investigation

All allegations about diocesan workers acting abusively or inappropriately towards children or vulnerable adults are taken seriously. All investigations are important but some investigations are assessed as being more “serious” than others.

The Diocese will conduct inquiries at a level commensurate with the apparent seriousness of the allegation(s) that have been made. If the alleged conduct would amount to a minor breach of professional standards (should it be sustained), the local leadership, with OoSG overseeing, may conduct the inquiry.

Matters are considered “more serious” if one or more of the following factors are present.

1. The nature of the allegation(s). Any allegation that involves criminality, potential criminality or allegations of sexual misconduct.

2. The role and authority of the respondent in the Diocese. For example

    • a supervisor or manager, particularly in senior management
    • a “whole of life” carer of the alleged victim, such as an authorised foster carer
    • a priest or ordained deacon providing ministry for the Diocese or a religious acting on behalf of the Diocese.

3. The respondent has been the subject of prior allegations or concerns. These include prior investigations, a pattern of prior complaints against the respondent or the existence of current disciplinary proceedings or performance management.

4. Relevant tertiary considerations. The presence or significant potential for:

    • media interest
    • involvement of an external party (such as a local parliamentarian) advocating on behalf of one or more of the parties
    • any alleged or established conflicts of interest
    • other alleged irregularities that threaten to undermine confidence in the integrity of the investigative process.

Allegations that constitute a “reportable allegation”, that is, the allegation falls within the scope of the NSW Ombudsman’s Office Employment-related child protection scheme under Part 3A Ombudsman Act 1974, are considered more serious.

Being advised of the investigation

In most circumstances, the respondent will not be informed that they are the subject of investigation until such time as preliminary inquiries have been completed.

Preliminary inquiries are the investigative processes required to ensure all relevant evidence is gathered to produce “definitive allegations” for the respondent to address. Usually the respondent is the last person to be asked to give evidence, when most of the investigative process has been completed. There are two main reasons for this process.

  • The respondent’s experience of the investigation is relatively brief. Not being informed until later in the investigation reduces the levels of stress the respondent may experience while waiting for preliminary inquiries to be completed.
  • Being unaware of the investigation protects the respondent from allegations of intentionally interfering with an investigation, such as attempting to compromise investigative integrity.

However, there are circumstances that may require the respondent to be advised earlier, including:

  • the confidentiality of the investigation having been compromised
  • the need to implement temporary safety measures
  • external authorities advising the respondent as part of a criminal or statutory investigation.

Risk management and temporary safety measures

No findings are made against the respondent during an investigation, however the investigator must balance the perceived and actual risks inherent in a diocesan worker remaining in their work role after they have been alleged to have acted inappropriately or abusively towards a child or vulnerable adult.

The investigator undertakes an initial assessment of risk and reviews the risk during the investigation in consultation with the respondent’s supervisor and the relevant leadership. The assessment considers a number of key areas of risk. In making the assessment of risk there is a bias towards the safety of children and vulnerable adults, balanced against the Diocese’s determination to cause the least possible disruption to the respondent’s work.

If there is a “real and appreciable” risk, the local diocesan leadership may implement temporary safety measures with advice from the OoSG investigator.

Temporary safety measures are an attempt to protect the respondent as much as to protect children or vulnerable adults involved in the investigation.

Temporary safety measures may include the respondent:

  • being provided increased or varied supervisory arrangements in the workplace
  • giving certain undertakings
  • being placed on alternative or restricted duties
  • being temporarily reassigned to a different workplace
  • being suspended from normal duties or being stood aside from ministry (with retention of all current benefits).

The assessed level of risk has no relationship to the eventual findings of the investigation. Any temporary safety measure does not support the validation of any allegations, just as the lack of temporary safety measures does not indicate the allegation will not be sustained.

Support for the respondent

Being the respondent can be stressful. The OoSG can arrange counselling support with an agreed third-party provider, if normal counselling support is not available. Most diocesan workers have access to funded counselling through EAP (the Employee Assistance Program). OoSG will fund reasonable counselling costs for the respondent if they identify a need for psychological support.

The respondent’s local leader will be aware of the investigation. The local leader is responsible for ensuring the respondent has access to them to discuss any issues of concern. The local leader is expected to:

  • maintain regular contact with the respondent, for example, regular “well-being” face-to-face meetings or phone calls
  • protect the integrity of the investigation, for example, ensure there is no discussion about the investigation among the local workgroup
  • ensure there is as little disruption to the respondent’s work routine as is reasonable (allowing for possible temporary safety measures having been enacted).

It is in the respondent’s best interests to have a support person to assist them through the investigation. The support person can act as the respondent’s go-between with the investigator, be a witness to interviews, and help the respondent prepare written responses. If the respondent is a member of a union or professional association, the Diocese recommends the respondent contact them. The respondent can have a union or association representative support them during the process.

If the allegation involves potential criminal conduct the respondent should consider engaging a solicitor.

If the respondent has any special needs, the investigator will use all reasonable endeavours to ensure these needs are met. The respondent may consider engaging Disability Advocacy NSW as a support.

Steps in an investigation — provision of information and rights of reply

The respondent must be given adequate information to make a fully informed response to the allegation(s) against them. When the investigator completes their preliminary inquiries the respondent will receive the findings.

The respondent is entitled to know the alleged victim. The respondent is not entitled to know the identity of child witnesses. 

When the respondent has had reasonable opportunity to consider the allegation and the supporting evidence, the investigator will seek to interview the respondent.

For the most part, it is in the respondent’s best interests to attend an interview. However, the respondent may choose to provide a written response. Often the investigator will prepare a series of guide questions to assist the respondent to address issues of particular interest to the investigator.

The respondent will be given a second right of reply after the investigator makes “draft findings”.  The respondent will be provided the evidence on which a “sustained” finding is based. The respondent is afforded an opportunity to review the evidence and reply (refute) the evidence.

The respondent can choose not to respond to the allegations, however the OoSG will proceed to make findings irrespective of a respondent’s decision not to reply to the allegation. The OoSG will make findings on the balance of probabilities based on the available evidence.

‘Findings of fact’, outcomes, appeals and reporting to statutory authorities

Findings are the investigator’s decision whether there was sufficient evidence, on balance of probabilities, to establish that a particular allegation occurred (a “sustained” finding). If there is insufficient evidence, a “not sustained” finding is made.

With the respondent’s second right of reply received, or the respondent having forfeited their right to do so, a more senior member of the OoSG reviews all the evidence and makes the investigation’s “findings of fact” (which are also called “definitive findings” or “second findings”). If there is one or more “sustained” finding, the appropriate diocesan leadership will, in consultation with Human Resources (if the respondent is an employee or volunteer) and the OoSG, determine the appropriate outcomes from the investigation.

Outcomes can relate to the respondent and operational or systemic issues. Outcomes related to the respondent (also known as personal outcomes) will:

  • reflect the moral and cultural ethos of the Catholic Church and Diocese of Maitland-Newcastle
  • be commensurate with the seriousness of the sustained allegations
  • reflect the “industry standards” and community expectations for reasonableness and proportionality
  • be in accordance with employment and industrial law if the respondent is an employee.

Personal outcomes can include a range of actions, from the mild (a formal warning letter placed on the respondent’s personnel records), to the severe (notice of commencement of termination of employment proceedings).

For more information on the making of findings, outcomes, appeals and reporting to statutory authorities:

The OoSG keeps the investigation records secure and separate from a diocesan workers’ “personnel” or “clergy” file. The respondent is able to request access to their investigation records on completion of the process if one or more sustained finding has been made.

The respondent has a right of appeal. The respondent needs to have reasonable grounds, which may include:

  • an identified failure to ensure procedural fairness or adequately address conflicts of interest
  • errors in investigative procedures
  • evidence that was previously unavailable and which may affect the findings made.

Any appeal against a sustained finding should be made in writing to the Director of Safeguarding.  The appeal should provide all the relevant information/evidence/argument on which the respondent is relying to have a finding changed. The respondent can lodge an appeal on this website:

Feedback

P:  02 4979 1390
E:  sean.tynan@mn.catholic.org.au

The NSW Ombudsman reviews investigations deemed “reportable conduct”. The OoSG submits records of the investigation to the NSW Ombudsman.

Where an allegation of sexual assault, sexual misconduct or serious physical assault has been sustained, a report will also be made to the Office of the Children’s Guardian (OCG). This will trigger the OCG to undertake a risk assessment of the respondent’s working with children check (WWCC). 

For more information about the OCG and the WWCC, refer:
www.kidsguardian.nsw.gov.au/child-safe-organisations/working-with-children-check