Public Interest Disclosure Procedures

The Department of Justice (the Department) is committed to the aims and objectives of the Public Interest Disclosures Act 2002 (the Act). The Department will ensure compliance with the Act by:

• Creating a climate of trust, where employees, officers or contractors are comfortable and confident to report improper conduct
• Encouraging employees, officers or contractors to come forward if they become aware of improper conduct within DoJ
• Taking all reasonable steps to protect employees, officers or contractors to make disclosures from any adverse action, and to protect their welfare
• Investigating reports thoroughly and impartially, affording natural justice to all parties involved in the investigation
• Providing appropriate resources to:
  • Encourage reporting
  • Protect and support those who make reports
  • Train all DoJ employees, officers and contractors about how to make reports and the benefits of internal reporting to the Department and the public interest
  • Properly asses and investigate allegations
  • Properly manage workplace issues that the allegations identify or that result from an investigation, and
  • Appropriately address any identified problems that result from an investigation.

In addition to the above, the Department recognises the importance of encouraging a proactive reporting culture amongst employees, officers and contactors. Our Values influence what we do and how we do it and are intrinsic to creating this culture. Our Values focus on five key areas:

As a values driven organisation, we are committed to creating an environment where staff are encouraged to speak up (when something is not right), create a safe place so this can be achieved and to always work ethically.

These Procedures set out how:

• The Department’s employees, officers or contractors can make disclosures of improper conduct or reprisal action
• Disclosures are assessed
• Disclosures are investigated

These Procedures complement current normal communication channels between supervisors and staff. Staff are encouraged to continue to raise appropriate matters at any time with their supervisors, and to use existing grievance procedures where appropriate.

These procedures draw upon provisions of the Act and have been prepared in accordance with the Tasmanian Ombudsman’s Public Interest Disclosure Guideline Two - Procedures for Public Bodies.

Staff should refer to the Act and Ombudsman’s Guidelines for additional information.

A summary of how the Act operates is provided below. A flow chart, depicting the way in which the Department will manage a disclosure can be found in the Ombudsman’s Guidelines.

Disclose

• It gives certain people – public officers and contractors – the right to make disclosures about improper conduct or detrimental action to certain integrity agencies, other persons and bodies (Part 2).

Protect

• It provides certain statutory protections for protected disclosures, even if the discloser does not reference the Act (Part 3).

Determine and Investigate

• It dictates how the recipient of the disclosure is to deal with it (Parts 4 -8)
• It treats the Ombudsman as the oversight agency in respect to the operation of the Act, including the default investigator, monitor of investigations by public bodies, and “setter” of standards under the Act
• Where the disclosure is handled by the Ombudsman or a public body, it requires a determination as to whether the protected disclosure is a public interest disclosure(sections 30 and 33)
• Subject to exceptions, it requires investigation by the Ombudsman or public body of any public interest disclosure (sections 39 and 63)
• It requires such investigations to be conducted as soon as practicable, but if conducted by a public body, not more than six months from the date of the determination that the disclosure is a public interest disclosure (sections 39A and 77A)
• It controls the manner in which a disclosure is investigated, and provides investigative powers
• In the case of an investigation by a public body which results in a finding that the alleged conduct occurred, it requires the public body to take action to prevent that conduct from continuing or recurring, and to take action to remedy any harm or loss which may have arisen (section 75).

Employees, Officers and Contractors

The Department’s employees, officers and contractors are encouraged to report known or suspected incidences of improper conduct or detrimental action in accordance with these procedures.

All Public Officers have an important role to play in supporting those who have made disclosures. They must refrain from any activity that is, or could be perceived to be, victimisation or harassment of a person who makes a disclosure. They should protect and maintain the confidentiality of a person they know or suspect to have made a disclosure.

Principal Officer

The Principal Officer has primary responsibility for ensuring that the provisions of the Act are implemented by the Department. Section 62A of the Act provides that the Principal Officer has responsibility for:

1. Preparing procedures for approval by the Ombudsman
2. Receiving public interest disclosures and ensuring they are investigated in accordance with the Act
3. Ensuring the protection of witnesses
4. Ensuring the application of natural justice in the Department’s procedures
5. Promotion of the importance of public interest disclosures and general education about the Act to all staff, and ensuring easy access to information about the Act and these Procedures
6. Providing access to confidential employee assistance programs and appropriately trained internal support staff for those involved in the process.

Public Interest Disclosure Officer

A Public Interest Disclosure Officer is appointed by the Principal Officer pursuant to section 62A (2) of the Act. They hold a delegation from the Principal Officer which enables them to:

• Act as a contact point for general advice about the operation of the Act for any person wishing to make a disclosure about improper conduct or detrimental action;
• Make arrangements for a disclosure to be made privately and discretely and, if necessary, away from the workplace;
• Receive any disclosure from a Public Officer made orally or in writing;
• Impartially assess the allegation and determine whether it is a disclosure made in accordance with Part 2 of the Act (that is, a “protected disclosure”);
• Impartially assess, pursuant to 3 33 of the Act, whether a disclosure is a “public interest disclosure”;
• Take all necessary steps to ensure that the identity of the discloser and the identity of the person who is the subject of the disclosure is kept confidential; and
• Undertake administrative functions to support the role pursuant to the Act, as required.

Investigator

Where it is determined that a disclosure is a public interest disclosure, or where the Ombudsman has referred a public interest disclosure to the Department for investigation, the Principal Officer will appoint an Investigator to investigate the matter in accordance with the Act. An investigator may be a person from within the Department or a consultant engaged for that purpose.

Welfare Manager

The Welfare Manager will be appointed by the Principal Officer or by a Public Interest Disclosure Officer and is responsible for looking after the general welfare of the discloser. The Welfare Manager will:

1. Examine the immediate welfare and protection needs of a person who has made a disclosure, and develop a support plan for them.
2. Advise the discloser of the available legislative and administrative protections.
3. Listen and respond to any concerns of harassment, intimidation, victimisation or other detrimental action which may be occurring in reprisal for making the disclosure.
4. So far as is practicable, protect the identify of the discloser in the course of carrying out these responsibilities

Who can make a disclosure?

Public Officers

Any current Public Officer (this can include a Public Officer from another public body) can make a disclosure to the Department under the Act. Volunteers who provide services to the Department can make disclosures as a member of the public and are to be referred to the Ombudsman or Integrity Commission.

Contractors

Current or past contractors and sub-contractors can make disclosures about public bodies, not Public Officers. In the event a contractor or sub-contractor wishes to make a disclosure, they will be referred by the Public Interest Disclosure Officer to the Ombudsman or Integrity Commission.

Members of the public

Members of the public can make a disclosure about a public body and may be treated in the same way as a contractor if it is in the public interest to do so. They are to be referred by the Public Interest Disclosure Officer to the Ombudsman or Integrity Commission. The Ombudsman or Integrity Commission will determine if it is in the public interest to treat the discloser as a contractor.

Anonymous persons

An anonymous disclosure may be accepted if the person receiving it is satisfied that the disclosure is being made by a Public Officer or contractor (refer section 8 of the Act). If the person is satisfied that an anonymous disclosure is from a contractor, it should be referred to the Ombudsman or Integrity Commission.

What can I disclose?

A disclosure can be made about one or more Public Officers or a public body. If a disclosure relates to the Department as a whole or the Principal Officer of the Department, it should be referred to the Ombudsman or Integrity Commission, as an internal investigation would not be appropriate.

Improper conduct

Disclosures about Public Officers must relate to improper conduct by that Officer, in the past, present or future (proposed action). Section 3 of the Act defines improper conduct as:

1. Conduct that constitutes an illegal or unlawful activity
2. Corrupt conduct
3. Conduct that constitutes maladministration
4. Conduct that constitutes professional misconduct
5. Conduct that constitutes a waste of public resources
6. Conduct that constitutes a danger to public health or safety or to both public health and safety
7. Conduct that constitutes a danger to the environment
8. Misconduct, including breaches of applicable codes of conduct, or
9. Conduct that constitutes detrimental action against a person who makes a public interest disclosure under this Act – that is serious or significant as determined in accordance with guidelines issued by the Ombudsman.

Examples of improper conduct include:

• An Agricultural Officer delays or declines imposing quarantine on a financially distressed farmer to sell diseased stock
• An Executive Officer spends $15,000 of public money on a staff Christmas party.

Corrupt conduct

Corrupt conduct is further defined in s3 of the Act as:

1. Conduct of a person (whether or not a Public Officer) that adversely affects, or could adversely affect, either directly or indirectly, the honest performance of a Public Officer’s or public body’s functions
2. Conduct of a Public Officer that amounts to the performance of any of their functions as a Public Officer dishonestly or with inappropriate partiality
3. Conduct of the Public Officer, former Public Officer or public body that amounts to a breach of public trust
4. Conduct of a Public Officer, a former Public Officer or a public body that amounts to the misuse of information or material acquired in the course of the performance of their functions as such (whether for the benefit of that person or body or otherwise)
5. A conspiracy to attempt to engage in conduct referred to in paragraph (a), (b), (c) or (d).

Examples of corrupt conduct include:

• A public Officer takes a bribe in exchange for the discharge of a public duty
• A Public Officer favours unmeritorious applications for jobs or permits for friends and relatives.

Detrimental action

Detrimental action, or reprisal action, against a discloser can be a form of improper conduct. It is defined in section 3 of the Act as including:

1. Action causing injury, loss or damage
2. Intimidation or harassment
3. Discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action
4. Threats of detrimental action.

Examples of detrimental action include:

• Refusal of a deserved promotion
• Demotion, transfer, isolation in the workplace or changing a person’s duties to their disadvantage
• Threats, abuse or other forms of harassment directly or indirectly against the discloser, their family or friends.

For the protections in the Act to apply, a disclosure needs to be made to the right person or body. The following table sets this out, pursuant to section 7 of the Act:

How to make a disclosure

Public Interest Disclosure Officers

Under section 62A of the Act, the Principal Officer must ensure that an officer to be appointed or reappointed as a Public Interest Disclosure Officer has the skills and knowledge to fulfil the role.

Subject to the above requirement, each person who holds any of the following positions within the Department will generally be appointed by the Principal Officer to act as a Public Interest Disclosure Officer and will hold a delegation which enables them to receive public interest disclosures under the Act. These positions are:

• Persons who hold the position of Deputy Secretary
• Persons who hold the position of Director of Human Resources.

The Department maintains a list of Public Interest Disclosure Officers on its website.

Where a person is contemplating making a disclosure and is concerned about approaching the Principal Officer or a Public Interest Disclosure Officer in the workplace, they can call the relevant officer and request a meeting in a discreet location away from the workplace.

A disclosure about the Principal Officer should be referred to the Ombudsman or the Integrity Commission.

Written or oral disclosure

It is preferable that a disclosure be made in writing. It should be addressed to the public body, marked for the attention of the Principal Officer or Public Interest Disclosure Officer. A disclosure can be sent to:

1. GPO Box 825
   HOBART Tasmania 7001
2. or via email to secretary@justice.tas.gov.au.

A Public Officer can also make an oral disclosure via telephone or in person to a Public Interest Disclosure Officer. An oral disclosure should be made in private. If a Public Officer is concerned about making a disclosure in person in the workplace, they can call or email the Public Interest Disclosure Officer to request a meeting in a location away from the workplace.

Disclosure to the Ombudsman

A disclosure may also be made directly to the Ombudsman at

1. www.ombudsman.tas.gov.au
2. ombudsman@ombudsman.tas.gov.au
3. 1800 001 170

Disclosure to the Integrity Commission

A disclosure may also be made directly to the Integrity Commission. The Integrity Commission can deal with a protected disclosure about individuals pursuant to the Integrity Commission Act 2009 or refer it to a public body or the Ombudsman. A disclosure can be made at:

1. www.integrity.tas.gov.au
2. contact@integrity.tas.gov.au
3. 1300 720 289

Confidentiality

Confidentiality will be maintained as far as reasonably possible in the handling of disclosures by the Department. To this end, the Department will:

1. Take all reasonable steps to protect the identity of a discloser
2. Take all reasonable care to protect the privacy of witnesses and of the person against whom the disclosure has been made
3. Take all reasonable action to ensure that all relevant files, whether paper or electronic are kept securely.

Section 23 of the Act requires that any person who receives information in the course of, or as a result of, a protected disclosure or its investigation, must not disclose that information except in certain circumstances. Disclosure of information in breach of this section constitutes an offence that is punishable by a maximum fine of 60 penalty units or six months imprisonment, or both.

The circumstances in which a person may disclose information obtained about a protected disclosure include:

• Where exercising their functions or functions of the public body under the Act
• When making a report or recommendation under the Act
• When publishing statistics in the Annual Report of a public body
• In proceedings for certain offences under the Act.

The Act, however, prohibits the inclusion of particulars in any report or recommendation that is likely to lead to the identification of the discloser. The Act also prohibits the identification of the person who is the subject of the disclosure in any particulars included in an Annual report made in accordance with Part 9 of the Act.

It may be necessary to consider disclosing information where:

• It is essential, having regard to the principles of natural justice, that the identifying information be disclosed to the person who is the subject of the disclosure
• The investigation body believes that the disclosure of the identifying information is necessary for the matter to be effectively investigated
• The identity of the discloser is likely to be “guessed” from the circumstances of the disclosure and the risks for the discloser are better managed if their identity is known and specific warnings or risk management actions can be taken.

In these circumstances the person who made the disclosure should first be consulted before any action is taken. It is recommended that attempts to obtain permission in writing from the discloser should be made prior to identifying them.

The Department will ensure that all relevant files, whether paper or electronic, are kept securely and can only be accessed by the Principal Officer, Public Interest Disclosure Officer/s, the Investigator, and (in respect to welfare matters), the Welfare Manager.

All printed and electronic material will be kept in files that are clearly marked as CONFIDENTIAL, and all materials relevant to the investigation, such as interview recordings, will also be stored securely with the files. Electronic files will have restricted access (as above).

All related discussions conducted either by telephone, online (i.e. via Microsoft Teams) or in person will be conducted in private.

The Right to Information Act 2009exempts documents from release to the extent that:

• They contain information regarding a disclosure
• Information that is likely to lead to the identification of the person who –
  • made the disclosure
  • is the subject of the disclosure

The Act requires the taking of two distinct steps when assessing a disclosure.  It first needs to be determined whether or not it qualifies as a protected disclosure, and thus attracts the protections contained in the Act.  In order to do so, it must satisfy the following prerequisites:

The next step is to determine if it is a public interest disclosure. This requires an assessment of the evidence provided by the discloser to determine if it shows or tends to show a Public Officer has, is, or is proposing to engage in improper conduct.

Receipt of disclosure

If the disclosure is oral, the recipient should make a file note as soon as practicable that records:

• The time the disclosure was made
• The circumstances under which it was made
• So far as possible, the exact words used by the discloser.

The recipient should ask the discloser to consider putting the disclosure in writing as soon as possible.

Unless the recipient is the Principal Officer (or the disclosure is about the Principal Officer), the recipient should immediately inform the Principal Officer of the disclosure and provide the Principal Officer with a copy of the disclosure, or record of the disclosure, and any accompanying documents.

If the disclosure is about the Principal Officer, the recipient should contact the Ombudsman for advice.

Protected disclosures

The protections for disclosures, provided in Part 3 of the Act, only apply where the disclosure is a protected disclosure made in accordance with Part 2 of the Act.

Using the Assessment of Disclosure Form, the Principal Officer or a Public Interest Disclosure Officer will assess whether a disclosure has been made in accordance with Part 2 of the Act as soon as practicable after it has been received.

A separate Assessment of Disclosure Form is to be used for each disclosure. This means, that if a discloser is reporting three different Public Officers, this will constitute three disclosures and therefore, requires three assessments.

If the disclosure is assessed as being a protected disclosure:

• The discloser must be referred to Part 3 of the Act and provided with an explanation of the protections that apply
• The discloser must be informed of the process that will be followed with respect to the disclosure
• The recipient must appoint a Welfare Manager to protect the interests of the discloser (and ensure the contact details for that person are made available to the discloser)
• The recipient must complete a risk assessment
• The recipient must provide a copy of the assessment to the Principal Officer as soon as possible.

Risk Assessment

A risk assessment must occur as soon as possible after the disclosure has been assessed as being a protected disclosure under the Act. The risk assessment should be completed by the recipient and identified mitigations implemented in accordance with the Risk Assessment Template.

The assessment of risks should be made relevant to the particular disclosure, the risk to the discloser, the subject of the disclosure, witnesses or the Department as a whole. The discloser is usually the most able to identify potential reprisal risks, so input should be sought from the discloser and the Welfare Manager when completing the risk assessment.

Referral of a protected disclosure to the Integrity Commission

The Department may refer a protected disclosure to the Integrity Commission where it considers that the disclosure relates to misconduct as defined in section 4(1) of the Integrity Commission Act 2009. When investigating a disclosure consideration should be given to:

• Whether independent investigation of the subject matter of the disclosure by the Integrity Commission is preferred
• The views of the discloser and the Integrity Commission about whether the matter should be referred.

The Department will notify the discloser of the referral under section 29(D) of the Act within a reasonable time (unless the disclosure was made anonymously).

The Integrity Commission may deal with the disclosure under its legislation, or it may refer the disclosure to the Ombudsman or a public body, as the case may require, for action in accordance with the Act.

Public interest disclosures

Once a disclosure has been assessed as being a protected disclosure, a further determination must be made as to whether or not it is a public interest disclosure. The Principal Officer or the Public Interest Disclosure Officer must make this determination under section 33 of the Act within 45 days of the receipt of the disclosure, using the Assessment of Disclosure Form.

For a disclosure to be a public interest disclosure, the Principal Officer or the Public Interest Disclosure Officer must be satisfied that 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 their capacity as a Public Officer, or
• Taken, is taking or proposes to take detrimental action in reprisal for the making of the protected disclosure.

Where the Principal Officer or Public Interest Disclosure Officer determines that the disclosure amounts to a public interest disclosure, they must:

1. Advise the Principal Officer (if not the person assessing the disclosure)
2. Notify the Ombudsman with 14 days of the decision, using the Notification Template
3. Notify the person making the disclosure within 14 days of the decision (unless anonymous)
4. Proceed to investigate the disclosed matter under section 34 of the Act.

If the Principal Officer or Public Interest Disclosure Officer determines that the disclosure is not a public interest disclosure, they must:

1. Advise the Principal Officer (if not the person assessing the disclosure)
2. Notify the Ombudsman within 14 days of the decision using the Notification Template
3. Notify the person making the disclosure within 14 days of the decision (unless anonymous).

The Ombudsman will review this decision under section 35(2) of the Act. If, on review of the matter, the Ombudsman agrees that the disclosure is not a public interest disclosure, it does not need to be dealt with under the Act. The Principal Officer, or the Public Interest Disclosure Officer in consultation with the Principal Officer, will then decide how the disclosure should be dealt with.

If the Ombudsman determines on review that the disclosure is a public interest disclosure, it may be referred back to the public body under section 42 of the Act for investigation or the Ombudsman will deal with the disclosed matter.

Mixed content disclosures

Some disclosures may contain personal grievances. When conducting assessments of complaints or grievances, the assessor needs to be alert to identifying those aspects that could constitute a protected disclosure.

It is not a requirement that a discloser specify they are making a disclosure, the onus rests on the Department to identify whether or not the Act applies. Consideration should be given to discussing with the person if they wish to make a public interest disclosure if it appears their concerns would meet this threshold.

Those matters that can be dealt with under the Department’s Grievance Policy and those that are more appropriately dealt with under these procedures should be dealt with separately where possible.

If the assessor considers that the complaint or grievance may warrant an Employment Direction 5 investigation, then the matter should be assessed under the Public Interest Disclosure Procedures.

Referral of criminal conduct to the Commissioner of Police

It is possible that, before or during the investigation of a public interest disclosure, facts are uncovered that indicate the possibility that a criminal offence may have been committed. If this occurs, the Department will not commence, or will suspend, an investigation and will consult with the Ombudsman as to the future conduct of the matter. Under section 41 of the Act, the Ombudsman has the power to refer a public interest disclosure to the Commissioner of Police for investigation.

If the Ombudsman is satisfied that the disclosed matter should be referred to the Commissioner, the Department will consider whether the disclosure should be referred to the Ombudsman under section 68 of the Act.

Early referral of the matter may avoid interference with the evidentiary trail and so will be done at the first possible opportunity. Referral to the Commissioner through the Ombudsman will also avoid any question of a breach of confidentiality under section 23 of the Act.

Protection

When does protection commence?

Where the Department receives a disclosure which complies with the requirements of Part 2 of the Act, the disclosure immediately attracts the protections set out in Part 3 of the Act. The protection will also extend to a person who intends to make a disclosure as set out in section 19 of the Act.

What protection does the Act provide?

Part 3 of the Act gives various types of protection to a person who makes a protected disclosure. A person who makes a protected disclosure:

• Is not subject to any civil or criminal liability, or to any liability arising by way of administrative process, for making the protected disclosure (section 16)
• Does not by doing so, commit an offence under a provision of any other Act that imposes a duty to maintain confidentiality, or which imposes any other restriction on the disclosure of information (section 17(1)(a))
• Does not by doing so, breach an obligation by way of oath, or rule of law or practice, or under an agreement, which requires the discloser to maintain confidentiality or otherwise restricts the disclosure of information (section 17(1)(b)).

Part 3 of the Act also contains various provisions which are intended to protect a discloser from detrimental action by way of reprisal for a protected disclosure. These are:

• PART 3, section 19 – makes it an offence to take such detrimental action
• PART 3, section 20 – creates a liability to pay damages for such detrimental action
• PART 3, section 21 – gives a person who believes detrimental action has been taken the right to apply to the Supreme Court for an order to remedy that action.

Any disclosure the Department determines to be a public interest disclosure under section 33 of the Act must be investigated, unless, pursuant to section 64 of the Act there is a good reason not to.

The Principal Officer will appoint an investigator to carry out the investigation. The investigator may be a person from within the organisation or a consultant engaged for the purpose.

The objectives of an investigation are to:

• Collate information relating to the allegation as quickly as possible, which may involve taking steps to protect or preserve documents, materials and equipment
• Consider the information collected and draw conclusions objectively and impartially
• Maintain procedural fairness in the treatment of witnesses and generally to all parties involved in the disclosure.

Matters that do not have to be investigated

Before starting an investigation, the Principal Officer or Public Interest Disclosure Officer must first consider whether the disclosed matter needs to be investigated. Section 64 specifies certain circumstances under which a public body must legitimately decide not to investigate.

The Disclosure Assessment Template provides more information about the requirements of section 64.

If the disclosed matter is not to be investigated, written notice (using the Notification Template) must be given within 14 days of this decision to the Ombudsman and the person who made the disclosure (except in the case of an uncontactable anonymous discloser). Reasons for the decision must accompany the notice.

The Ombudsman will review the decision. If the Ombudsman agrees that the disclosure should not be investigated, the matter does not need to be dealt with under the Act. Importantly, the discloser still retains protections. The Principal Officer, or the Public Interest Disclosure Officer in consultation with the Principal Officer, will decide how the matter should be managed.

If the Ombudsman determines that the disclosure should be investigated, the Ombudsman will advise the Principal Officer.

Section 64 may be reconsidered at a later time during the investigation.

Employment direction 5 investigations

If a public body has already investigated a disclosure, it may not need to be investigated again under the Act, as provided by section 64(b). It is not a relevant consideration, however, when determining whether or not to investigate a public interest disclosure that the matter may be, or is being, investigated under Employment Direction 5 (ED5) or another internal process.

ED5 investigations and the process under the Act for assessing and investigating disclosure are separate processes and the investigations should be conducted separately. The interaction between the two processes should be considered on a case-by-case basis, for example, whether evidence gathered during a public interest disclosure investigation can be used in an ED5 investigation given the confidentiality requirements of section 23.

An ED5 investigation examines potential breaches of the State Service Code of Conduct by an employee. The investigation ensures the application of procedural fairness, including informing parties of the substance of the alleged breach and the intention to investigate.

In contrast, a protected disclosure (which can also involve a breach of the State Service Code of Conduct) provides protections to a discloser and imposes confidentiality requirements to manage the matter.

The purpose of the investigation of a public interest disclosure is to establish if improper conduct has occurred and to make recommendations, which may include taking disciplinary action. Procedural fairness requirements still apply during a public interest disclosure investigation, however, the Public Officer may not be notified of the disclosure or the investigation at the outset, or at all, if the investigation finds it is unsubstantiated.

If an ED5 investigation concludes prior to the conclusion of a public interest disclosure investigation and the Principal Officer considers that the subject matter of the disclosure has been adequately dealt with through the ED5 process, they may decide not to further investigate the matter pursuant to section 64(b). The notification process outlined above will be followed.

The Department’s investigators should consider seeking legal advice or contacting the Ombudsman for further information.

Appointment of investigator and framing of terms of reference

The Principal Officer (not a Public Interest Disclosure Officer) will determine who will conduct the investigation. The Investigator will be provided with a formal Terms of Reference, signed by the Principal Officer. The Terms of Reference will specify:

• The matters to be investigated
• The date by which the investigation is to be concluded
• Reporting requirements (regular reports are to be made to the Principal Officer, including details of compliance with any measures identified in the risk assessment)
• The resources available to assist the Investigator for the purposes of the investigation.

The completion date should be as soon as practicable, but not more than six months from the date of the determination that the disclosure is a public interest disclosure under section 77A (1) of the Act. If at any stage before or during the investigation it appears that the investigation cannot be completed within six months, the Department may apply to the Ombudsman for an extension of up to a further six months.

Investigation Plan

The Investigator should prepare an Investigation Plan for approval by the Principal Officer. The Plan should list the issues which are to be investigated and describe the steps which the Investigator intends to take when investigating each of those issues. The risk assessment should be considered as part of the investigation planning and appropriate steps taken to reduce identified risks during the investigation.

The Plan should be updated as necessary during the course of the investigation.

Procedural fairness

With respect to all parties involved, the principles of procedural fairness must be carefully observed in the course of the investigation. These principles are referred to as natural justice in the Act.

The principles are standards which need to be met in order to satisfy a person’s right to a fair hearing. If natural justice is not provided, the investigation findings may be questionable and could be challenged.

The Department will comply with the following requirements to ensure procedural fairness is accorded to all parties involved:

No one is to be involved in the investigation:

• Who is known to be biased against any person who is potentially subject to an adverse finding
• Who is known to hold any biases which are relevant to the subject matter of the investigation
• Against whom there are reasonable grounds for apprehending or suspecting bias.

The test for establishing the existence of apprehended bias is whether a fair-minded lay observer, taking into account all relevant circumstances, might reasonably apprehend that the decision-maker might not bring an impartial mind to the resolution of the questions that they are required to decide.

If the investigator is aware of any reason why they may be susceptible to an allegation of bias on the basis of these principles, they should immediately inform the Principal Officer. Consideration should be given to the use of an external investigator if a perception of bias exists.

Any person who is potentially subject to an adverse finding or comment must be told of:

• The allegations made against them, or which have arisen against them as a result of the investigation
• All of the information which is adverse to their interests and which is, on an objective basis, credible, relevant and significant to the investigation
• The proposed adverse findings, and their possible consequences.

This must be done before any final conclusions are formed by the investigator. The person subject to the potential adverse finding must be given a reasonable time to respond. Despite this, there is no requirement to inform the person who is subject to the disclosure as soon as it is received, or as soon as the investigation has commenced.

The final Investigation Report should be drafted in a way that demonstrates that procedural fairness has been afforded. For example, it should record and deal with all submissions and evidence which a person has put in their defence.

Conduct of the investigation

The Integrity Commission’s Guide to Managing Misconduct in the Tasmanian Public Sector is a useful guide on the conduct of a public interest disclosure investigation. The Investigator should make notes of all discussions (in person, telephone or online) and audio recordings of significant interviews with witnesses where possible.

Interviews are to be conducted in private, and the Investigator should take all reasonable actions to protect the identity of the discloser. The name of the discloser or any particulars which might identify that person must not be revealed unless necessary, and then only with the discloser’s knowledge.

Referral of an investigation to the Ombudsman

Under section 68 of the Act, a public body may refer the investigation of a public interest disclosure to the Ombudsman, where the public body considers that its own investigation is being obstructed or that it is otherwise not within the capacity of the public body to complete the investigation. An investigation can also be referred to the Ombudsman if evidence of possible criminal conduct is found, to enable the Ombudsman to refer the matter to Tasmania Police (see Referral of criminal conduct to the Commissioner of Police).

Any decision as to whether the investigation should be referred to the Ombudsman will be made by the Principal Officer.

Provision of information about the investigation

The Principal Officer or the Public Interest Disclosure Officer must ensure that the discloser is kept regularly informed concerning the handling of their protected disclosure and any investigation.

Section 74 of the Act requires a public body, at the request of the Ombudsman or the person who made the disclosure, to give the Ombudsman or that person reasonable information about the investigation. The information must be given within 28 days of the request.

As provided by section 74(3) of the Act, such information does not have to be given to the discloser if:

• It has already been given to the person
• The giving of the information would endanger the safety of another or may prejudice the conduct of the investigation.

Investigator's final report

At the conclusion of the investigation, the investigator must submit a written report of the findings to the Principal Officer. The report must contain:

• The allegation/s
• A description of the manner in which the investigation was conducted, with sufficient detail to demonstrate that natural justice was observed
• An account of all relevant information received
• Details of the evidence and submissions supplied by a person against whom an adverse finding is made, and the evaluation of that material by the Investigator
• The findings made and conclusions reached, and the basis for these.

A public body must take action under section 75 of the Act to redress any improper conduct found and try to prevent its recurrence. Accordingly, if the Investigator has found the alleged improper conduct has occurred, the Investigator may wish to include recommendations in respect to:

• Any steps that need to be taken by the Department to prevent the conduct from continuing, or occurring in the future
• Any action that should be taken by the Department to remedy any harm or loss arising from that conduct.

The steps to be taken may include bringing disciplinary proceedings against the person responsible for the conduct or referring the matter to an appropriate authority for further consideration. For example, if the investigation has revealed conduct that may constitute an unreported criminal offence, the matter should be referred to Tasmania Police.

The internal investigation report must include:

• A transcript or other record or any oral evidence taken, including video or audio recordings
• All documents, statements and other exhibits received by the Investigator and accepted as evidence during the course of the investigation.

Action to be taken

If the investigation makes a finding that a Public Officer has engaged, is engaged or proposes to engage in improper conduct, the Department will, in accordance with section 75 of the Act, take all reasonable steps to prevent the conduct from continuing or occurring in the future and may take action to remedy any loss or harm arising from the conduct. The Principal Officer should take into consideration any recommendations in the Investigator’s report but can take different or broader action if appropriate.

The Principal Officer will provide a written report to the relevant Minister and the Ombudsman, setting out the findings of the investigation and any remedial steps taken. The report must not disclose particulars likely to lead to the identification of the discloser. The Ombudsman will also be provided with the full internal investigation report and accompanying evidence.

As required by section 77 of the Act, the Principal Officer will also inform the discloser of the findings of the investigation, and of any steps taken under section 75 as a result of those findings. Where the investigation concludes that the disclosed conduct did not occur, the Principal Officer will report that finding to the Ombudsman and to the discloser.

Support for the discloser

The Principal Officer or the Public Interest Disclosure Officer must appoint a Welfare Manager to support all persons who have made a protected disclosure. This must occur within five (5) working days of the protected disclosure being received.

A discloser who believes that they are being subjected to detrimental action in reprisal for having made the disclosure should report it to the Principal Officer or a Public Interest Disclosure Officer, as this can be a potential further protected disclosure. If they believe that the reprisal is not being effectively dealt with by the Department, they may report the matter to the Ombudsman.

Keeping the discloser informed

The Principal Officer or the Public Interest Disclosure Officer must ensure that the discloser is kept informed of action taken in respect to their disclosure, and the timeframes that apply. The discloser must be informed of the objectives of any investigation that takes place, the findings of the investigation, and the steps taken by the Department to address any improper conduct that has been found to have occurred. The discloser must be given reasons for all decisions made by the Department in respect to a disclosure. All communication with the discloser must be in plain English.

Occurrence of detrimental action

If a discloser reports an incident of detrimental action allegedly taken in reprisal for the making of a disclosure, the Welfare Manager should:

• Record details of the incident
• Advise the discloser of their rights under the Act
• Assist the discloser to advise a Public Interest Disclosure Officer or the Principal Officer of the detrimental action.

The taking of detrimental action in reprisal for the making of a disclosure can be an offence under the Act as well as grounds for making a further disclosure. Where such detrimental action is reported, the Principal Officer or Public Interest Disclosure Officer will assess the report as a new disclosure under the Act, and it will be dealt with accordingly.

Discloser implicated in improper conduct

Where a person who makes a disclosure is implicated in improper conduct, the Department will manage the disclosure and protect the discloser from reprisals in accordance with the Act, the Ombudsman’s Guidelines and these procedures.

The Department acknowledges that the act of disclosing should not shield disclosers from the reasonable consequences resulting from any involvement in improper conduct. Section 18 of the Act specifically provides that a person’s liability for their own conduct is not affected by the person’s disclosure of that conduct under the Act. However, in some circumstances, an admission may be a mitigating factor when considering disciplinary or other action.

The Principal Officer will make the final decision as to whether disciplinary or other action will be taken against a discloser. Where disciplinary or other action relates to conduct that is the subject of the person’s disclosure, the disciplinary or other action will only be taken after the disclosed matter has been appropriately dealt with.

In all cases where disciplinary or other action is being contemplated, the Principal Officer must be satisfied that it has been clearly demonstrated that:

• The intention to proceed with disciplinary action is not because of the making of the disclosure (as opposed to the content of the disclosure or other available information)
• There are good and sufficient grounds that would fully justify action against any non-discloser in the same circumstances
• There are good and sufficient grounds that justify exercising any discretion to institute disciplinary or other action.

The Principal Officer or Public Interest Disclosure Officer will thoroughly document the process, including the reasons why the disciplinary or other action is being taken, and the reasons why the action is not in retribution for the making of the disclosure.

The Principal Officer or Public Interest Disclosure Office will clearly advise the discloser of the proposed action, and of any mitigating factors that have been taken into account. They should advise the discloser that they can raise any concerns about the action taken with the Ombudsman.

The Department recognises that employees against whom disclosures are made must also be supported during the investigation process. When a person who is the subject of the disclosure is made aware of the allegations or of any investigation, they should be provided with an appropriate contact person to direct queries. Information about employee assistance programs (EAP), the Department’s Wellbeing Support Unit or other supports should also be provided if required.

The Department will take all reasonable actions to ensure the confidentiality of the person who is the subject of the disclosure during the assessment and investigation process. Where an investigation does not substantiate a disclosure, the fact that the investigation has been carried out, the results of the investigation, and the identity of the person who is the subject of the disclosure will remain confidential.

The Principal Officer or Public Interest Disclosure Officer will ensure that the person who is the subject of any disclosure investigated by or on behalf of the Department is afforded procedural fairness in accordance with these procedures.

Where the allegations in a disclosure have been investigated, and the person who is the subject of the disclosure is aware of the allegations or of the investigation, the Principal Officer or Public Interest Disclosure Officer will formally advise the person who is the subject of the disclosure of the outcome of the investigation.

The Department will give its full support to a person who is the subject of a disclosure where the allegations contained in a disclosure are clearly wrong or unsubstantiated. If the matter has been publicly disclosed, the Principal Officer will consider any request by that person to issue a statement of support setting out that the allegations were wrong or unsubstantiated.

These procedures were approved by the Ombudsman under section 60(3) of the Act on 22 August 2024.

The procedures will be submitted to the Ombudsman for review by 21 August 2027 to ensure they meet the objectives of the Act and accord with the Guidelines and Standards published by the Ombudsman under section 38(1)(c).