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Investigative processes conducted by the Diocese

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Investigation terminology

The Office of Safeguarding conducts specialist or formal investigations. As with many specialist processes there is a body of terminology and key concepts with specific meanings. 

Most diocesan workers will never have to participate in an Office of Safeguarding investigation and therefore have no need to know the technicalities of an investigation. However, if a diocesan worker needs or wants to have a greater understanding of the process of an Office of Safeguarding investigation, they will need to have a basic understanding of the following terminology and investigative concepts.

A formulation of words that describes the alleged conduct in as much detail as possible (who did what to whom, when and where). 

May also relate to a failure of a diocesan worker to act, that is, neglectful behaviour.

An investigation may consist of one or many allegations.

The child or vulnerable adult subject to the alleged conduct.  Frequently the alleged victim and the complainant is the same person. Calling someone an “alleged victim” does not infer the person is not believed. It simply means the allegation is yet to be investigated.

Particular documents, especially diocesan codes of conduct and Catholic standards documents (for example, Integrity in the Service of the Church), regulate diocesan workers’ conduct.

A diocesan leader, particularly more senior leaders alleged to have acted in contravention of the National Catholic Safeguarding Standards, may be deemed to have breached professional standards.

A person aged 0 to 18 years of age.

The person who makes the complaint about the alleged conduct of a diocesan worker towards a child or vulnerable adult.

Any person engaged by or acting on behalf of the Diocese of Maitland-Newcastle, including those:

  • employed by the Diocese under an award or contract
  • volunteering their services, including authorised (foster) carers or relative or kinship carers, within the meaning of the Children and Young Persons (Care and Protection) Act 1998
  • contracted by the Diocese, as a sole trader or other business, to undertake particular tasks
  • people undertaking practical training as part of an educational or vocational course
  • clergy incardinated to the Diocese of Maitland-Newcastle or providing ministry as an agent of the Diocese
  • members of a religious congregations working for or providing ministry on behalf of and in the name of the Diocese.

Any information relevant to the investigation.

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

Other particular findings that are variations of a “not sustained” allegation may be made in a reportable conduct investigation.

There are individual findings for each individual allegation.

All records generated in relation to an investigator conducting an inquiry, inclusive of emails, reports, transcripts and images.

The Office of Safeguarding holds electronic investigation records in a secure management system.

Investigation records are held separately from other diocesan records.

The person assigned the role of conducting an inquiry into the alleged conduct.

  • For less serious allegations, the investigator may be a member of the local leadership team (for example, an assistant principal).
  • For serious allegations, an investigator from the Office of Safeguarding is appointed.
  • The Office of Safeguarding may also appoint an independent third-party investigator when deemed appropriate.

Key decisions the appropriate diocesan leadership makes when one or more allegation in an investigation is “sustained”. 

Outcomes can relate to the respondent and operational or systemic issues.

Reportable conduct is a technical construct and is summarised in Part 3A Ombudsman Act as:

  • any sexual offence, or sexual misconduct, committed against, with or in the presence of a child (including a child pornography offence)
  • any assault, ill-treatment or neglect of a child
  • any behaviour that causes psychological harm to a child.

The NSW Ombudsman website provides greater detail on what constitutes a reportable conduct:
https://www.ombo.nsw.gov.au/what-we-do/our-work/employment-related-child-protection/reportable-allegations-and-convictions

The diocesan worker alleged to have behaved inappropriately, abusively or neglectfully towards a child or vulnerable adult.

A person 18 years or older who has:

  • a physical disability of sufficient severity as to make them dependent on another for assistance in everyday activities and self care
  • a chronic or persistent mental illness that significantly impedes their competence
  • a developmental delay or other cognitive disability to a moderate or profound degree
  • become physically or mentally frail as a result of advanced years.

Any person, including children or vulnerable adults, investigators identify as having information relevant to the alleged conduct.

Stages of an investigation

When the Office of Safeguarding receives a report about the alleged conduct of a diocesan worker, it is assessed to determine whether the allegation constitutes reportable conduct and therefore falls under Part 3A of the NSW Ombudsman Act 1974, or it constitutes an alleged breach of professional standards.

Any alleged conduct that may constitute a criminal complaint is referred to Police. Any allegation of ROSH (risk of significant harm) is reported to FaCS Child Protection Helpline (NSW Department of Family and Community Services).

Local leaders may conduct some investigations with the Office of Safeguarding overseeing and supporting. These “local investigations” are informal and resolved more quickly because the nature of the allegation is less serious or only constitutes a minor breach of professional standards. The Office of Safeguarding undertakes any investigation due to:

  • an identified conflict of interest affecting the local leadership
  • lack of local leadership capacity
  • prior concerns for the respondent’s conduct justifying a “more thorough” review of the current concerns.

The Office of Safeguarding must investigate all reportable allegations.

Allowing for the vagaries of all human processes, most Office of Safeguarding investigations follow the sequential list set out below. Detailed discussion of each step is available in drop-down dialogue boxes.

The beginning of the investigation is vital to reduce the possibility for procedural problems later and maximise the possibilities of having an efficient, effective and timely investigation.

The first step is assigning the investigator. Most Office of Safeguarding inquiries will be assigned to employed investigators who form PaRS (the Prevention and Response Service) the largest service within the Office of Safeguarding. However, the Manager, Prevention and Response may engage third-party (contracted) investigators.

The investigator and, dependent on particular circumstances, the Manager, Prevention and Response, will consult with the relevant diocesan leadership, including the respondent’s supervisor.  Where the allegations are more serious, senior leadership may also be involved in the consultative process. The Diocese’s Human Resources service will be advised of the investigation and invited to participate.

Unless circumstances require, the respondent will not be advised of the investigation until relatively late in the process. Triggers for informing the respondent of the investigation early include:

  • the confidentiality of the investigation has been compromised or there is a credible risk it will be
  • the investigator assesses the respondent poses a real and appreciable risk that will trigger the implementation of temporary safety measures (that is, some level of restriction on a diocesan worker’s current roles and responsibilities)
  • external authorities advise the respondent as part of a criminal or statutory investigation.

As part of the consultation and preparation phase, the investigator will prepare a plan that provides diocesan leadership with a guide to the complexity and scope of the pending inquiry. The investigation plan includes an initial risk assessment.

Where the alleged conduct is assessed to constitute a “reportable allegation”, the NSW Ombudsman’s Office must be advised within 30 days of the allegation having been made.  For more information on what “constitutes reportable conduct” or a “reportable conviction”, refer to:

Reporting abuse committed by a diocesan worker

For more information about the NSW Ombudsman and its ‘Employment-related child protection scheme’, refer to:
https://www.ombo.nsw.gov.au/what-we-do/our-work/employment-related-child-protection

Real and appreciable risk

The investigator will conduct an initial risk assessment, which will then be reviewed throughout the investigation with the analysis of new evidence. Risk management is undertaken in accordance with international standards [ISO 31000:2018].

The risk assessment focuses on a number of key areas, including:

  • the children or vulnerable adults involved in the investigation (as victims or witnesses)
  • the respondent
  • other diocesan workers
  • provision of service and operational capacity
  • the integrity of the investigation
  • the Diocese’s reputation and public standing.

The sensitivity of the investigative risk assessment is in accordance with that established by s.5B Child Protection (Working with Children) Act 2012, initially articulated by Supreme Court Justice CJ Young: “What one is looking for is whether, in all the circumstances, there is a real and appreciable risk in the sense of a risk that is greater than the risk of any adult preying on a child.”

If the investigator assesses based on available information that the respondent poses a real and appreciable risk, the local diocesan leadership may implement temporary safety measures with advice from the Office of Safeguarding investigator.

Temporary safety measures

Temporary safety measures are an attempt to protect the respondent as much to protect children or vulnerable adults and may include:

  • being provided increased or varied supervisory arrangements in the workplace
  • the respondent giving certain undertakings
  • being placed on alternative or restricted duties
  • temporary reassignment to a different workplace
  • suspension 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. The implementation of a temporary safety measure does not influence or presuppose a “sustained” finding for one or more of the allegations under investigation. Equally, the lack of temporary safety measures does not indicate the allegation will not be sustained.

If temporary safety measures are to be implemented, the respondent will be advised of the investigation at this early stage. The respondent will be given a general explanation of the allegation(s) that are to be investigated, but no particulars.

Conducting preliminary inquiries is the active investigative phase — the gathering of evidence.

Types of evidence

There are four basic types of evidence available to the investigator:

  • witness evidence, gathered through formal interviews
  • documentary evidence, which can include client or student files, case notes, work diaries, HR records, complaints registers
  • expert evidence or technical advice obtained from an external specialist used to clarify a technical issue that is outside the investigator’s area of expertise
  • site inspection and forensic evidence that is relatively rare in diocesan investigations.

The gathering of evidence is neutral. The investigator seeks exculpatory evidence with identical rigour as evidence in support of the allegation.  Exculpatory evidence refers to evidence that supports the proposition the respondent did not act as alleged.

The investigator will endeavour to interview witnesses in a predetermined order, often to avoid or reduce the risk of contamination or collusion.

Only diocesan workers may be compelled to give evidence. Children or their parents, vulnerable adults and other adults who are not diocesan workers are free to refuse to be a part of an investigation. The investigator will ask the witness (or their parent) to provide written confirmation of their refusal to be interviewed.

Diocesan workers can seek special consideration to not give evidence in an investigation, including:

  • claims of professional privilege (for example, confidentiality of counselling relationship)
  • conflict of interest (for example, the diocesan worker is a close relative of the respondent)
  • common law or legislated right (for example, protection from self-incrimination).

Investigative interviews

Conducting investigative interviews is the single-most common means of evidence-gathering in Office of Safeguarding investigations. An investigative interview is an intentionally technical exercise to ensure the evidence gathered is deemed admissible in administrative tribunals and potentially court proceedings. Investigative interviews have a clear structure with a detailed and prepared introduction and lines of questioning.

The investigator will endeavour to have child witnesses and vulnerable adults feel as safe and comfortable as is practical. Child witnesses must be accompanied for an investigative interview, preferably by one of their parents or carers. 

Wherever possible, investigative interviews do not occur in the place where the alleged conduct occurred (for example, at the school where alleged abuse occurred).

With the consent of the witness (or the witness’s parent if applicable) an audio recording of the investigative interview will be made. The recording will be transcribed into a printed record of interview, a copy of which will be provided to the witness. The witness then has an opportunity to review the record of interview and provide any clarifications or corrections to the record or make further comment in relation to the investigation and resubmit the altered record, which then forms the agreed record of interview.

Bests interests of the child

There are exceptional circumstances where, in the process of conducting preliminary inquiries, an argument arises that it is in the best interests of the victim not to address the alleged abuse with the respondent, i.e. not pursue the investigation and halt proceedings without the possibility of findings being made.

This consideration is limited to specific circumstances, including:

  • the alleged victim being a close relative of the respondent who resides with or remains demonstrably dependent on the respondent
  • the alleged abuse cannot be of a serious nature (i.e. it does not constitute misconduct as defined by Schedule 1(2) of the Child Protection (Working with Children) Act 2012
  • there being an absence of prior concerns of a similar nature related to the respondent
  • the probability of the respondent recommitting similar conduct in the foreseeable future, is considered low (e.g. the non-respondent parent of the alleged victim is able to vouchsafe the respondent’s recent and current conduct
  • pursuit of the investigation can be shown to be against the best interests of the alleged victim, irrespective of the nature of the finding that may be made.

Should the investigator believe that it is in the best interests of the child not to pursue the investigation further, the investigator must prepare a submission addressing the five specified circumstances listed above and request that “the investigation be terminated in the best interests of the child.”  The submission, along with the investigation record needs to be submitted to a senior investigator or the investigator’s manager for an independent determination.

If the application for termination of the investigation is successful the investigation process moves to stage (8) Advising respondent, complainant, witnesses and statutory authorities however the respondent is not notified of the allegations, the alleged victim and non-respondent parent are advised.

If the application for termination of the investigation is rejected, the investigator proceeds along a normative pathway to stage (5) Respondent’s second right of reply — formulating “draft findings”.

Gathering of evidence is not an open-ended exercise, the more witnesses interviewed, the greater the risk of the investigation’s confidentiality being compromised and the greater the cost of the inquiry. The investigator, in consultation with Office of Safeguarding leaders, must determine when sufficient evidence has been gathered.

The investigator will then analyse the evidence for the purposes of producing a set of definitive allegations.

Definitive allegations

Definitive allegations will contain a level of detail and specificity of the alleged conduct sufficient to facilitate the respondent’s ability to respond. The allegations should include the most accurate detail achievable from the preliminary inquiries, including temporal and geographic location of specific behaviours the respondent allegedly committed, (who did what to whom, where and when).

The respondent has the right to know the alleged victim.

Complex investigations usually produce multiple individual allegations.  Where there are a series of interrelated abusive actions that occurred sequentially or as part of an intrinsically single act of abuse, the investigator may formulate an allegation consisting of multiple sub-allegations.

Respondent’s first right of reply

The investigator will provide the respondent with a set of definitive allegations in writing, and an invitation to be interviewed within a reasonable timeframe thereafter.

The respondent may choose to prepare a written submission. This process constitutes the respondent’s first right of reply.

The respondent will be given all reasonable opportunity to reply, however, the respondent cannot be compelled to respond and may choose not to.  Irrespective of the respondent’s choice to respond or not, diocesan investigations will proceed based on the available evidence.

No case to answer

On rare occasion, an investigator may determine, based on preliminary inquiries, that the respondent has no case to answer, i.e. there is no evidence of the respondent having acted abusively, neglectfully or in breach of professional standards towards any child or vulnerable adults.

Should the investigator believe there is ‘no case to answer’, the investigator must prepare an analysis of the evidence and submit the investigation record to a senior investigator or the investigator’s manager for an independent review. 

If the review supports the proposition that there is no case to answer, the investigation process moves to stage (8) Advising respondent, complainant, witnesses and statutory authorities.  The respondent is offered an opportunity to make a formal comment (to add to the investigation record) however there is no necessity to do so.

If the review rejects the proposition, the senior investigator or manager provides sufficient advice to the investigator to assist them in reviewing their original analysis.  The investigator is expected to produce definitive allegations and the investigation proceed along a normative pathway to stage (5) Respondent’s second right of reply — formulating “draft findings”.

After interviewing the respondent or the respondent having forfeited their first right of reply, the investigator reviews the available evidence for the purposes of determining whether there is sufficient evidence, on balance of probabilities, to find that one or more of the allegations are sustained.

Rules of Evidence

The strict rules of evidence and issues of admissibility that apply to court hearings do not bind diocesan investigations. However, not all evidence is of equal value. The best (preferred) witness evidence is first-person or eyewitness evidence.  Hearsay evidence may be considered but has reduced probative value (if any). Contemporaneous documentary evidence may be relied on more than notes transcribed after the passage of time.

Evidence can have reduced probative value because of identified conflicts of interest, internal inconsistency, past conduct reduces the witness’s credibility, and there is indication of contamination of evidence or collusion between witnesses.

Analysis

The investigator will analyse each fact that goes to establishing an allegation in its own right.  A sustained finding will only be made when the investigator is reasonably satisfied, and actually persuaded, based on logically probative evidence (evidence that is persuasive, and not based on guesswork, suspicion or hearsay only). The absence of exculpatory evidence is not sufficient to make a sustained finding. There must be sufficiently compelling supportive evidence to make a positive finding of ‘sustained’.

The investigator will make draft findings for each of the allegations considered in the investigation.  

Where there is at least one ‘sustained finding’

The respondent will be provided a detailed written advice, citing the investigator’s draft findings and the particulars of the evidence on which the finding is made.  These particulars will include the relevant sections of interview transcripts, relevant documentary evidence and the investigator’s analysis. The evidence will be redacted to protect the identities of particular witnesses in accordance with following paragraph.

The identity of child witnesses will be protected. If an investigator determines a diocesan worker has “credible fear” from giving evidence, their identity may also be protected.

The respondent will be afforded all reasonable opportunity to make written submissions as to the draft findings. This constitutes the respondent’s second right of reply.

Where there are no ‘sustained findings’

The respondent will not be provided draft findings, as there have been no findings adverse to their best interests.  The investigator will proceed directly to step (6) The investigation is reviewed — findings of fact.

It is good practice for the investigator to advise the respondent, complainant and alleged victim and their family of the progress of the investigation, however it is at the investigator’s discretion.

The investigator will hand over the investigation record to a senior investigator or the investigator’s manager to review and analyse the respondent’s submissions, other evidence, and the investigator’s draft findings and rationale in support of their findings.

The more serious the allegation, the investigator and reviewer will apply the rule of prudence that requires additional caution. Where the alleged conduct is inherently unlikely, or where a sustained finding will result in serious disciplinary consequences, the preliminary inquiries must be thorough and rigorously evidence tested.

The reviewer makes findings of fact, also known as “definitive findings”.  It is open to the reviewer to change none, some or all of the draft findings. Where the reviewer’s findings vary from the draft finding, the reviewer is obliged to state the basis for the variation, including their evidence and analysis on which the finding relies.

Where a draft finding of “not sustained” is changed to “sustained”, the respondent must be given a further right of reply in relation to the newly sustained finding and the overall process needs to cease until the respondent’s reply has been received or the right has been forfeited.

For diocesan investigations not deemed “reportable conduct” (Part 3A Ombudsman Act) there are only two findings available to the investigator, “sustained” or “not sustained”.  If there are no sustained findings, the only outstanding step to be completed is the complainant and alleged victim being advised of the completion of the investigation and the findings (in general terms).  Also, any child witnesses or diocesan workers who were interviewed will be advised that the investigation has been completed; they do not receive any advice as to findings or outcomes.

Reportable conduct allegations have a more complex findings structure:

Sustained — a finding the conduct occurred

Not sustained —insufficient evidence — some evidence of weight, however there is insufficient evidence available to reasonably establish the alleged conduct did occur

Not sustained — lack of evidence of weight — where the evidence is of such poor probative value or lacking in weigh it warrants a finding that, on the balance of probabilities, the conduct did not occur

False — where inquiries show reportable conduct or an act of violence did not occur. Some of these matters may be vexatious, for example where inquiries show the allegation was made without substance and to cause distress to the person against whom the allegation was made

Not reportable conduct — where inquiries into the matter show the conduct was not reportable. For example, use of force that was trivial or negligible in the circumstances, conduct that was reasonable in the circumstances or accidental. This may include “misconceived” matters, where inquiries show that, even though the allegation was made in good faith, it was based on a misunderstanding of what actually occurred and the incident was not reportable conduct.

For more information about the NSW Ombudsman and its ‘Employment-related child protection scheme’, refer to:
https://www.ombo.nsw.gov.au/what-we-do/our-work/employment-related-child-protection

Where the investigation produces one or more “sustained” finding the investigator will consult with relevant diocesan leadership and a representative from diocesan human resources to determine whether the sustained allegations are of sufficient seriousness to warrant the formulation and implementation of outcomes.

The relevant diocesan leadership makes the outcomes, not the Office of Safeguarding.  Outcomes usually fall into two categories.

Personal outcomes relate to the respondent and their current and future working relationship with the Diocese.  Personal outcomes may include:

  • the respondent being asked to undertake further training and professional development
  • imposing reasonable variations and additional oversight of the respondent’s roles and responsibilities
  • commencing disciplinary proceedings.

The appropriate diocesan leader (with or without a representative from Human Resources) will consult with the respondent as to the draft or proposed personal outcomes that are being contemplated. Wherever possible, it is preferable that a respondent is aware of and accepting of outcomes that affect their work-based relationship with the Diocese. It is appropriate to assess whether some variation to the proposed outcome may achieve consensus with the respondent. However, the respondent’s opposition to a proposed outcome is insufficient basis to retract the proposed outcome.

Systemic outcomes are identified opportunities to improve structure, process or policy that may include targeted training to address poor or out-of-date practice within a workplace or team, development of new or revision of current policy and procedure, or restructuring one or more workplaces or programs to improve oversight and accountability.

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
  • be equivalent to outcomes made in similar circumstances within the Diocese
  • reflect the “industry standards” and community expectations for reasonableness and proportionality
  • be in accordance with employment and industrial law, should the respondent be an employee
  • address any unresolved issues of risk
  • be in alignment with the strategic or business plan of the Diocesan entity
  • be achievable, within financial and other constraints affecting the diocesan entity in which the respondent works.

The implementation of outcome decisions is the responsibility of the relevant diocesan entity (where the respondent works). Where there are personal outcomes, the human resources representative is usually involved to assist both parties.

The Office of Safeguarding oversights and reviews the implementation and success of the outcome decisions. The Office of Safeguarding has the authority to follow-up and inquire as to why outcome decisions were not implemented.

As part of the investigation record, reportable conduct investigations submitted to the NSW Ombudsman will include the agreed outcomes.

The respondent is provided written advice as to the findings of fact and any consequent outcomes that stemmed from the investigation. The investigator may also contact the respondent to advise them personally, if deemed appropriate.

For other classes of persons specifically involved in the investigation, the alleged victim, complainant and witnesses may be provided formal (written) or oral advice.

The alleged victim or their parents, guardians or responsible persons (where applicable) will be provided advice as to the investigation’s completion and, in general terms, the findings made and the outcomes decided.

If the complainant is different from the alleged abuser, they will be provided sufficient information to demonstrate that adequate and appropriate action was taken in response to their allegation.  However, they will not be given information about findings or personal outcomes (relating to the respondent). The complainant will likely be advised of systemic outcomes.

Most witnesses will be advised of the completion of the investigation but no information in relation to findings or outcomes will be provided.

For investigations assessed as being of a more serious nature, written and oral advice may be provided to senior diocesan leaders.

The NSW Ombudsman reviews investigations deemed “reportable conduct”. The Office of Safeguarding 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 written 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:
https://www.kidsguardian.nsw.gov.au/child-safe-organisations/working-with-children-check

The respondent has the right to appeal any of the findings they believe are averse to their best interests.

If a respondent wishes to object to or appeal an outcome decision, they must refer their concern to the senior leadership of the relevant diocesan entity in which they work.

The commencement of disciplinary proceedings is not an appealable decision. The respondent is afforded rights of reply and appeal through the process.

The following information only relates to appealing findings with Office of Safeguarding.

The respondent must make a written submission appealing one or more findings. The right of appeal is not automatic. The respondent needs to have a reasonable basis for appealing a finding of fact. The respondent would need to identify:

  • a failure to ensure procedural fairness or address conflicts of interest
  • errors in investigative procedures, including errors in the application of the rules of evidence
  • previously unavailable exculpatory evidence.

There is a 28-day time limit for a respondent’s appeal to be considered.

The respondent and any other participant in the investigation are able to make a complaint. For further detail on making a complaint refer:

Respondents involved in reportable conduct investigations the NSW Ombudsman oversees have the ability to complain to the Ombudsman. For more information about the NSW Ombudsman and their ‘Employment-related child protection scheme’, refer to:
https://www.ombo.nsw.gov.au/what-we-do/our-work/employment-related-child-protection

The Office of the Children’s Guardian (OCG) is responsible for administering NSW’s working with children check (WWCC) and undertaking risk assessments of those holding a current WWCC who are subject to an “assessment requirement trigger”. If a respondent has sustained findings relating to sexual abuse, sexual misconduct or serious physical assault, the Diocese must report the finding to the OCG who will then conduct a risk assessment to determine whether the respondent poses a real and appreciable risk to children.

For more information about the OCG and their risk assessment process, refer:
https://www.kidsguardian.nsw.gov.au/sandbox/working-with-children-check/legal/support-person/risk-assessment