Procedural Fairness in Victorian Reportable Conduct Investigations After the Transfer to the Social Services Regulator

Victoria’s reportable conduct scheme has always required organisations to investigate allegations carefully, lawfully and with child safety at the centre. After the transfer of the scheme to the Social Services Regulator (SSR) on 23 February 2026, procedural fairness remains a core expectation. For schools, care providers, charities, sporting bodies and other in-scope organisations, this means more than simply completing an investigation and sending a report. It requires a disciplined process: giving the respondent fair notice, managing evidence properly, sequencing interviews to protect children and preserve integrity, and applying the expanded Victorian definition of “employee” correctly.

Why procedural fairness matters under the Victorian scheme

Procedural fairness is not a technical add-on to a reportable conduct investigation. It is central to the credibility of the process and to the defensibility of the organisation’s findings. In Victoria, regulators expect investigations to be child-focused and robust, but also fair to the worker or volunteer who is the subject of the allegation.

In practice, procedural fairness usually means the respondent should be told the substance of the allegation, given a reasonable opportunity to respond, and assessed by an impartial decision-maker who considers relevant material and ignores irrelevant material. It also means the organisation should avoid pre-judging the outcome and should document the steps taken to ensure fairness.

This is especially important because reportable conduct findings are made using the civil standard of proof: the balance of probabilities, applied with appropriate caution for serious allegations. Organisations are not determining criminal guilt. They are assessing whether reportable conduct is substantiated for scheme purposes and whether risk management, disciplinary action or referrals are required. A procedurally fair process supports reliable factual findings and reduces the risk of avoidable challenge.

The transfer to the SSR does not lower these expectations. If anything, it reinforces the need for disciplined investigative practice, clear recordkeeping and careful decision-making.

Notice to respondents: what fairness generally requires

One of the most common procedural fairness failures is inadequate notice to the respondent. In Victorian reportable conduct matters, the respondent should usually be informed of the allegation in sufficient detail to allow a meaningful response. That does not always require immediate disclosure of every document or witness account, and there may be valid reasons to withhold some information temporarily, particularly where child safety, confidentiality or evidence preservation is in issue. However, the respondent should still understand the substance of what is alleged.

As a practical minimum, organisations should consider telling the respondent:

• the nature of the alleged conduct
• when and where it is said to have occurred, if known
• the child-related context of the allegation
• the possible policy or conduct issues under consideration
• the investigation process and expected next steps
• any interim management action, such as restricted duties or stand-down, and why it is being applied.

Notice should be given in a way that is clear, neutral and not framed as a concluded finding. Allegations should be described as allegations until tested. Care is also needed where there are parallel processes, such as police involvement, workplace action or child protection engagement. The organisation may need to adjust the timing and scope of what it puts to the respondent so it does not compromise another process.

A further Victorian point is the expanded definition of “employee”. After the transfer to the SSR, the scheme captures not only conventional employees but also labour-hire workers, secondees, and individual business directors or owners. That affects procedural fairness in two ways. First, organisations must identify early whether the respondent falls within scope, even if they are not on the direct payroll. Second, notice and process arrangements may need to be adapted to non-standard engagement models, including where another entity is the legal employer or where contractual arrangements are involved.

Evidence handling: integrity, relevance and careful records

Procedural fairness depends on evidence integrity. Organisations should gather, preserve and assess material methodically. That includes complaint records, emails, rosters, CCTV if available, HR files, training records, risk assessments, prior disclosures, and any notes of conversations with the child or witnesses.

Good evidence handling involves several disciplines.

First, preserve contemporaneous material early. Delays can result in lost records, fading recollections or compromised electronic data. Secondly, separate fact-gathering from assumption. Investigators should test accounts against objective material where possible and should document inconsistencies rather than smoothing them over. Thirdly, maintain confidentiality on a need-to-know basis. Over-disclosure can create safety, privacy and fairness issues.

Where the organisation receives information from a child, trauma-informed handling is critical. The investigation should avoid repeated questioning and should not turn workplace fact-finding into an improvised forensic interview. If specialist interviewing is needed, the organisation should consider whether the matter should be referred or whether specialist advice is required.

Procedural fairness also requires that adverse material relied on for findings is, where appropriate, put to the respondent in substance so they have a chance to respond. The respondent does not need unlimited access to all records in every case, but they should not be denied a fair opportunity to answer critical allegations. Investigators and decision-makers should also document why certain material was or was not disclosed during the process.

Interview sequencing: protect children, preserve evidence, avoid contamination

Interview order can significantly affect both child safety and fairness. There is no single sequence for every Victorian reportable conduct matter, but there should be a reasoned plan.

In many cases, the organisation should first secure immediate safety, preserve available evidence and check whether police or other authorities are involved. If there is an active criminal investigation, the organisation may need to limit or defer some enquiries. It should not inadvertently contaminate witness evidence or interfere with external processes.

Where it is appropriate for the organisation to proceed, witness sequencing should be guided by risk and reliability. As a general practice:

1. address immediate protective issues first
2. gather and preserve objective evidence early
3. obtain relevant witness accounts before they are influenced by circulating narratives
4. interview the respondent after enough information is available to put the substance of the allegation fairly.

Interviewing the respondent too early can result in vague or incomplete allegations being put, which is unfair and unhelpful. Interviewing too late can also create unfairness if the process drifts and the respondent has no timely opportunity to respond. The right sequence is usually one that allows the organisation to present a coherent account of the allegation while protecting the child and maintaining evidentiary integrity.

Children should not be interviewed simply because it is convenient for the employer process. Any engagement with a child should be necessary, carefully planned and developmentally appropriate. Investigators should avoid leading questions, repeated questioning and adversarial techniques.

Expanded employee coverage: scope decisions now matter more

The expanded Victorian definition of “employee” has practical consequences for triage and fairness. Labour-hire workers, secondees, and individual business directors or owners may now fall within the scheme in circumstances where some organisations previously focused only on direct employees and volunteers.

For safeguarding and HR teams, this means scope assessment should occur at intake. The organisation should ask:

• what is the person’s actual role in the child-facing environment
• under what arrangement are they performing work
• who has supervisory control
• which entity is responsible for making notifications and conducting the investigation.

These questions are not only administrative. If an organisation misclassifies a worker as out of scope, it may fail to notify the SSR or fail to investigate appropriately. If it assumes another entity will handle the matter without clarifying responsibility, procedural fairness and child safety can both be undermined.

Where multiple entities are involved, coordination should be documented. The respondent should be told which organisation is investigating, what the process is, and how information may be shared. Clear governance is particularly important for secondees and labour-hire arrangements, where employment, supervision and child-contact functions may sit across different organisations.

Key takeaways

• Procedural fairness remains a central expectation in Victorian reportable conduct investigations after the transfer to the SSR on 23 February 2026.
• Respondents should usually receive clear, neutral notice of the substance of the allegation and a genuine opportunity to respond.
• Evidence handling should be methodical, confidential and well documented, with adverse material put fairly where relied on.
• Interview sequencing should protect children, preserve evidence and avoid contaminating accounts, especially where police or other authorities are involved.
• The expanded Victorian definition of “employee” means organisations must assess scope carefully for labour-hire workers, secondees, and individual business directors or owners.