Section 6 - Investigations
6.1 Introduction
The Department will investigate every disclosure referred to it for investigation by the Ombudsman under s.42 of the Act.
Unless the matters set out in 10.2 below apply, or the matter has been referred to the Commissioner of Police in accordance with 9.3 above, the Department will investigate every disclosure that it receives and determines is a public interest disclosure under s.33 of the Act.
The protected disclosure coordinator will appoint an investigator to carry out the investigation.
The objectives of an investigation will be:
- to collate information relating to the allegation as quickly as possible. This may involve taking steps to protect or preserve documents, materials and equipment;
- to consider the information collected and to draw conclusions objectively and impartially;
- to maintain procedural fairness in the treatment of witnesses and the person who is the subject of the disclosure; and
- to make recommendations arising from the conclusions drawn concerning remedial or other appropriate action.
6.2 Matters that do not have to be investigated
The Department may, in certain circumstances decide not to investigate a disclosed matter. These are –
- if in its opinion the disclosure is trivial, vexatious, misconceived or lacking in substance; or
- if the subject matter of the disclosure has already been adequately dealt with by the Ombudsman or a public body, statutory authority, Commonwealth statutory authority, commission, court or tribunal; or
- if the person making the disclosure has commenced proceedings in a commission, court or tribunal in relation to the same matter, and that commission, court or tribunal has power to order remedies similar to those available under this Act; or
- if the person making the disclosure had knowledge for more than 12 months of the disclosed matter before making the disclosure and failed to give a satisfactory explanation for the delay in making the disclosure.
Where the protected disclosure coordinator decides not to investigate a disclosed matter he or she will, within 14 days:
- notify the person who made the disclosure of that decision , and the reasons for the decision; and
- advise the person that he or she may request the public body to refer the disclosure to the Ombudsman for a determination as to whether the disclosed matter is to be investigated and this request must be made within 28 days of the notification.
If the person does request a referral to the Ombudsman, the Department will immediately refer the matter to the Ombudsman.
6.3 Terms of reference
Before commencing an investigation, the protected disclosure coordinator will draw up terms of reference and obtain authorisation for those terms by the Secretary. The terms of reference will set a date by which the investigation report is to be received, and will describe the resources available to the investigator to complete the investigation within the time set. The protected disclosure coordinator may approve, if reasonable, an extension of time requested by the investigator. The terms of reference will require the investigator to make regular reports to the protected disclosure coordinator who, in turn, is to keep the Ombudsman informed of general progress.
6.4 Investigation plan
The investigator will prepare an investigation plan for approval by the protected disclosure coordinator. The plan will list the issues to be substantiated and describe the avenue of inquiry. It will address the following issues:
- What is being alleged?
- What are the possible findings or offences?
- What are the facts in issue?
- How is the inquiry to be conducted?
- What resources are required?
- At the commencement of the investigation, the discloser should be:
- Notified by the investigator that he or she has been appointed to conduct the investigation;
- Asked to clarify any matters; and
- Asked to provide any additional material he or she might have.
The investigator will be sensitive to the discloser’s possible fear of reprisals and will be aware of the statutory protections provided to the discloser.
6.5 Natural justice
The principles of natural justice will be followed in any investigation of a public interest disclosure. The principles of natural justice concern procedural fairness and ensure a fair decision is reached by an objective decision maker.
Maintaining procedural fairness protects the rights of individuals and enhances public confidence in the process.
The Department will have regard to the following principles in ensuring procedural fairness:
- the person who is the subject of the disclosure is entitled to know the allegations made against him or her and will be given the right to respond. This does not mean the person must be advised of the allegation as soon as the disclosure is received or the investigation has commenced;
- if the investigator is contemplating making a report adverse to the interests of any person, that person will be given the opportunity to put forward further material that may influence the outcome of the report and that person’s defence should be fairly set out in the report;
- all relevant parties to a matter will be heard and all relevant submissions will be considered;
- a decision will not be made until all reasonable inquiries have been completed;
- the investigator or any decision maker will not have a personal or direct interest in the matter being investigated;
- all proceedings will be carried out fairly and without bias. Care will be taken to exclude perceived bias from the process; and
- the investigator will be impartial in assessing the credibility of the disclosers and any witnesses. Where appropriate, conclusions as to credibility should be included in the investigation report.
6.6 Conduct of the investigation
The investigator will make notes of all discussions and phone calls, and all interviews with witnesses will be taped. All information gathered in an investigation will be stored securely either in confidential storage in records together with any information held electronically on disc or CD. Interviews will be conducted in private and the investigator will take all reasonable steps to protect the identity of the discloser. Where disclosure of the identity of the person cannot be avoided, due to the nature of the allegations, the investigator will warn the discloser and his or her welfare manager of this probability.
It is in the discretion of the investigator to allow any witness to have legal or other representation or support during an interview. If a witness has a special need for legal representation or support, permission may be granted. The requirement for legal representation will be considered on a case by case basis.
6.7 Referral of an investigation to the Ombudsman
The protected disclosure coordinator will make a decision regarding the referral of an investigation to the Ombudsman where, on the advice of the investigator:
- The investigation is being obstructed by, for example, the non-cooperation of key witnesses.
- If the investigation has revealed conduct that may constitute a criminal offence, the Ombudsman will be consulted as to whether the investigation should be referred to the Tasmania Police.
6.8 Reporting requirements
The protected disclosure coordinator will ensure the discloser is kept regularly informed concerning the handling of a protected disclosure and an investigation.
The protected disclosure coordinator will report to the Ombudsman about the progress of an investigation.
Where the Ombudsman or the discloser requests information about the progress of an investigation, that information will be provided within 28 days of the date of the request. However, if the giving of the information would endanger the safety of another person or may prejudice the conduct of the investigation.
Continue to Section 7 - Action taken after an investigation