Section 5 - Process involved in receiving and assessing disclosures
The following questions are designed to assist in the assessment process when a complaint is lodged.
5.1 Has the disclosure been made in accordance with Part 2 of the Act?
Where a disclosure has been received by the protected disclosure officer or by the protected disclosure coordinator, he or she will assess whether the disclosure has been made in accordance with Part 2 of the Act and is, therefore, a protected disclosure.
Has the disclosure been made to the appropriate person?
For the disclosure to be responded to by the Department, it must concern an employee, member or officer of the Department. If the disclosure concerns an employee, officer or member of another public body, the person who has made the disclosure must be advised of the correct person or body to whom the disclosure should be directed. (See the table in 5.3).
Does the disclosure contain the essential elements of a protected disclosure?
To be a protected disclosure, a disclosure must satisfy the following criteria:
- did a public officer or contractor make the disclosure?
- does the disclosure relate to conduct of the Department or one of its officers acting in their official capacity?
is the alleged conduct either improper conduct or detrimental action taken against a person in reprisal for making a protected disclosure? - does the person making a disclosure have reasonable grounds for believing the alleged conduct has occurred?
Where a disclosure is assessed to be a protected disclosure, it is referred to the protected disclosure coordinator. The protected disclosure coordinator will determine whether the disclosure is a public interest disclosure. - Where a disclosure is assessed not to be a protected disclosure, the matter does not need to be dealt with under the Act. The protected disclosure officer will decide how the matter should be responded to in consultation with the protected disclosure coordinator.
- Does the disclosure relate to an alleged breach of the Code of Conduct under the State Service Act 2000?
The Department may refer a protected disclosure to the State Service Commissioner if it reasonably suspects that the disclosure relates to an alleged breach by a State Service officer or employee of the State Service Code of Conduct under the State Service Act.
The Department will notify the discloser of the referral within a reasonable time (unless the disclosure is anonymous) (s.29).
The Commissioner may deal with the disclosure under the State Service Act, or may refer it to the Ombudsman or public body as the case requires (s.28) to deal with it as a disclosure.
5.2 Is the disclosure a public interest disclosure? s.33
Where the protected disclosure officer or coordinator has received a disclosure that has been assessed to be a protected disclosure, the protected disclosure coordinator will determine whether the disclosure amounts to a public interest disclosure. This assessment will be made within 45 days of the receipt of the disclosure.
In reaching a conclusion as to whether a protected disclosure is a public interest disclosure, the protected disclosure coordinator will consider whether the disclosure shows, or tends to show, that the public officer to whom the disclosure relates:
- has engaged, is engaging or proposes to engage in improper conduct in his or her capacity as a public officer; or
- has taken, is taking or proposes to take detrimental action in reprisal for the making of the protected disclosure.
Where the protected disclosure coordinator concludes that the disclosure amounts to a public interest disclosure (s.34), he or she will:
- notify the person who made the disclosure of that conclusion;
- notify the Ombudsman; and
- proceed to investigate the disclosed matter -see 10 (Investigations) below.
Where the protected disclosure coordinator concludes that the disclosure is not a public interest disclosure (s.35), he or she will:
- notify the person who made the disclosure of that conclusion; and
- advise that person that he or she may request the public body to refer the disclosure to the Ombudsman for a formal determination as to whether the disclosure is a public interest disclosure, and that this request must be made within 28 days of the notification.
In either case, the protected disclosure coordinator will make the notification within 14 days of the conclusion being reached by the public body. Notification to the discloser is not necessary where the disclosure has been made anonymously.
5.3 Referral of criminal conduct to the police
It is possible that before or during an investigation facts are uncovered that reveal a potential criminal offence. If this happens, the Department will not commence, or will suspend, the investigation and will seek the advice of the Ombudsman as to the future of the matter. Under section 41 of the Act, the Ombudsman has the power to refer a disclosed matter to the Commissioner of Police for investigation.
If the Ombudsman is satisfied that the disclosed matter should be referred to Tasmania Police, the Department will request the Ombudsman to take over the investigation for the purpose of referring it to the Commissioner of Police.
An early referral may avoid interference with the evidentiary trail. Referral through the Ombudsman also will avoid any question of a breach of confidentiality under s.23 of the Act. Once a disclosure is referred to the Commissioner through the Ombudsman, the investigation under the Public Interest Disclosures Act process ceases.
In some instances, depending on the nature of the evidence and the seriousness of the alleged offence, the Ombudsman may decide, after consultation with the Commissioner of Police, that the disclosed matter will not be referred to the police for investigation. If this occurs, the Department will continue with its investigation under the Act.
Continue to Section 6 - Investigating disclosures