The Department of Justice (DoJ) is committed to the aims and objectives of the Public Interest Disclosures Act 2002 (the Act). DoJ will ensure compliance with the Act by:
In addition to the above, DoJ 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:
We are honest, ethical, reliable, and fair in everything we do
We treat our colleagues, stakeholders and clients with courtesy and value the diverse experience of others
We are transparent, take ownership for our actions and acknowledge the responsibility we have to our colleagues, stakeholders and clients
We enable our colleagues, clients and stakeholders to be respected, valued and treated equitably
We actively engage with our colleagues, stakeholders and clients to make informed decisions that benefit the community
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:
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 Public Interest Disclosure Act (the Act) and have been prepared in accordance with the Tasmanian Ombudsman’s Guideline One: Procedures for Public Bodies (PDF, 2.3 MB).
Staff should refer to the Act and Ombudsman’s Guideline One: Procedures for Public Bodies for additional information.
In these Procedures -
(a) a person who at any time has entered into a contract with a public body for the supply of goods or services to, or on behalf of the public body; or
(b) an employee of the contractor; or
(c) a subcontractor engaged by the contractor to fulfil all or part of a contract with a public body for the supply of goods or services to, or on behalf of, the public body.
“detrimental action” includes
(a) action causing injury, loss or damage; and
(b) intimidation or harassment; and
(c) discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action; and
(d) threats of detrimental action.
“discloser” means a “public officer” or a “contractor” who makes a disclosure of improper conduct or detrimental action;
“improper conduct” means conduct that
(a) constitutes and illegal or unlawful activity; or
(b) is corrupt conduct
(c) constitutes maladministration; or
(d) constitutes professional misconduct; or
(e) constitutes a waste of public resources; or
(f) constitutes a danger to public health or safety or to both public health and safety; or
(g) constitutes a danger to the environment; or
(h) is misconduct, including breaches of applicable codes of conduct; or
(i) 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;
“Minister” means either, the Minister for Justice, Attorney-General, Minister for Corrections, Minister for Building and Construction, Minister for Planning;
“Principal Officer” means the Secretary, Department of Justice;
“protected disclosure” means a disclosure of improper conduct or detrimental action made in accordance with Part 2 of the Act. The protections provided by Part 3 of the Act only apply where the disclosure made is a protected disclosure.
S.16 provides that “a person who makes a protected disclosure is not subject to any civil or criminal liability or any liability arising by way of administrative process (including disciplinary action) for making the protected disclosure”.
“public interest disclosure” means a protected disclosure or improper conduct or detrimental action in relation to which DoJ is satisfied that the disclosure shows or tends to show that the public officer or public body to whom the disclosure relates –
“Public Officer” means an officer or employee of DoJ;
“recipient” means the person to whom the disclosure is made, ie: the Public Interest Disclosure Officer or the Principal Officer.
1. Italicised terms are derived directly from the Act; non-italicised terms are specific to these Procedures ↩︎
2. For the purpose of these Procedures, “public body” is taken to mean the Department of Justice. ↩︎
3. Note that “corrupt conduct” is also defined in the Act – Refer S.3 – Interpretation ↩
A summary of how the Act operates is provided below. A flow chart, depicting the way in which DoJ will manage a disclosure can be found Disclosure flow chart (PDF, 1.8 MB)
DoJ 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.
The Principal Officer has primary responsibility for ensuring that the provisions of the Act are implemented by DoJ. Section 62A of the Act provides that the Principal Officer has responsibility for:
The Principal Officer may delegate any or all of these functions and powers to a Public Interest Disclosure Officer.
A Public Interest Disclosure Officer is appointed by the Principal Officer pursuant to s 62A (2) of the Act. They hold a delegation from the Principal Officer which enables them to:
A list of DoJ’s Public interest disclosure Officers
Where it is determined that a disclosure is a public interest disclosure, or where the Ombudsman has referred a public interest disclosure to DoJ 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 DoJ or a consultant engaged for that purpose.
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:
A Welfare Manager may be a person employed by DoJ or a consultant engaged for that purpose.
The Welfare Manager must not be responsible for assessing or investigating the disclosure.
DoJ will provide support to any employee or officer who is subject to an allegation of improper conduct. This may include taking one or more of the following actions:
Any current Public Officer (this can include a Public Officer from another public body) can make a disclosure to DoJ under the Act. Volunteers who provide services to DoJ can make disclosures as a member of the public and are to be referred to the Ombudsman or Integrity Commission.
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 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.
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 s 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.
A disclosure can be made about one or more Public Officers or a public body. If a disclosure relates to DoJ as whole or the Principal Officer of DoJ, it should be
referred to the Ombudsman or Integrity Commission, as an internal investigation would not be appropriate.
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:
(a) conduct that constitutes an illegal or unlawful activity; or
(b) corrupt conduct; or
(c) conduct that constitutes maladministration; or
(d) conduct that constitutes professional misconduct; or
(e) conduct that constitutes a waste of public resources; or
(f) conduct that constitutes a danger to public health or safety or to both public health and safety; or
(g) conduct that constitutes a danger to the environment; or
(h) misconduct, including breaches of applicable codes of conduct; or
(i) 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:
Corrupt conduct is further defined in s3 of the Act as:
(a) 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; or
(b) conduct of a Public Officer that amounts to the performance of any of their functions as a Public officer dishonestly or with inappropriate partiality; or
(c) conduct of the Public Officer, former Public Officer or public body that amounts to a breach of public trust; or
(d) 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); or
(e) a conspiracy to attempt to engage in conduct referred to in paragraph (a), (b), (c) or (d).
Examples of corrupt conduct include:
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:
(a) action causing injury, loss or damage; and
(b) intimidation or harassment; and
(c) discrimination, disadvantage or adverse treatment in relation to a person’s employment, career, profession, trade or business, including the taking of disciplinary action; and
(d) threats of detrimental action.
Examples of detrimental action include:
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 s 7 of the Act:
Disclosure relates to….?
Where the disclosure may be made
A member, officer or employee of DoJ
DoJ or the Ombudsman or the Integrity Commission
The Principal Officer of DoJ or DoJ as a whole
The Ombudsman or the Integrity Commission
The relevant Minister for DoJ, a member of the House of Assembly
The Speaker of the House
A person employed in an office of a Minister, Parliamentary Secretary or other Member of Parliament
Public Officers can make a disclosure about other Public Officers of DoJ orally or in writing to the following officers:
Each person who holds or acts in any of the following positions within DoJ has been appointed by the Principal Officer to act as Public Interest Disclosure Officer, and holds a delegation which enables them to receive public interest disclosures under the Act. These positions are:
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.
A disclosure may also be made directly to the Ombudsman @:
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 @:
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:
GPO Box 825
HOBART TAS 7001
or via email to firstname.lastname@example.org.
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.
It is not a requirement that the person contemplating making a disclosure refers to the Act, or is aware of the Act.
Confidentiality will be maintained as far as reasonably possible in the handling of disclosures by DoJ. To this end DoJ will:
S 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:
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:
be disclosed to the person who is the subject of the disclosure;
In these circumstances the person who made the disclosure should first be consulted before any action is taken. Consider obtaining permission in writing from the discloser prior to identifying them.
DoJ 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 2009 exempts documents from release to the extent that:
- Made the disclosure; or
- 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:
|Has the disclosure been made to the correct person?||Y/N|
|Has it been made by a Public Officer (if, the disclosure is anonymous, is the person receiving it satisfied that it is being made by a Public Officer?||Y/N|
|Is it about the conduct of a Public Officer?||Y/N|
|Does the discloser believe the Public Officer has, is or is proposing to engage in improper conduct?||Y/N|
|Is it about conduct that could objectively fall within the definition of improper conduct?||Y/N|
|Does it concern conduct that occurred on or after 1 January 2001?||Y/N|
Does the disclosure qualify as a protected disclosure?
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.
If the disclosure is oral, the recipient should make a file note as soon as practicable that records:
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.
Contractors or members of the public who wish to make a disclosure should be advised to contact the Ombudsman or Integrity Commission.
If the disclosure is about the Principal Officer, the recipient should contact the Ombudsman for advice.
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:
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. The Risk Assessment template
The assessment of risks should be made relevant to the particular disclosure, the disclosure, the subject of the disclosure, witnesses or DoJ 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.
DoJ may refer a protected disclosure to the Integrity Commission where it considers that the disclosure relates to misconduct as defined in s 4(1) of the Integrity Commission Act 2009. When investigating a disclosure consideration should be given to:
DoJ will notify the discloser of the referral under s 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.
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 s 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:
A disclosure must be more than a mere allegation without substantiation to meet this threshold. A disclosure must include an indication of the existence of evidence that, if substantiated, would show or tend to show that the alleged improper conduct occurred.
Where the Principal Officer or Public Interest Disclosure Officer determines that the disclosure amounts to a public interest disclosure, they must:
If the Principal Officer or Public Interest Disclosure Officer determines that the disclosure is not a public interest disclosure they must
The Ombudsman will review this decision under s 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 that on review that the disclosure is a public interest disclosure, it may be referred back to the public body under s 42 of the Act for investigation or the Ombudsman will deal with the disclosed matter.
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 DoJ 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 DoJ 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.
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, DoJ will not commence, or will suspend, the investigation and will consult with the Ombudsman as to the future conduct of the matter. Under s 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, DoJ will consider whether the disclosure should be referred to the Ombudsman under s 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 s 23 of the Act.
Where DoJ 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 s 19 of the Act.
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:
If a disclosure is not made to the correct entity, the protections may not apply.
A discloser will not be protected if otherwise confidential information is disclosed to the media
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:
Any disclosure DoJ determines to be a public interest disclosure under s 33 of the Act must be investigated, unless, pursuant to s 64 of the Act there is a good reason not to.
DoJ will investigate every disclosure referred to it for investigation by the Ombudsman pursuant to s 63 (b) of the Act.
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:
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 (found here) will provide more information about the requirements of s64.
Any decision not to proceed with an investigation on a ground specified in s 64 must be made by the Principal Officer.
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.
If a public body has already investigated a discloser, it may not need to be investigated again under the Act, as provided by s64 (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 s23.
As a minimum, if a Public Officer has raised an allegation about another Public Officer that may need be investigated under ED5, it should also be considered under these public interest disclosure procedures.
An ED5 investigation, examines potential breaches of the State Service Code of Conduct by an employee, ensuring 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 matte of the disclosure has been adequately dealt with through the ED5 process, they may decide not to further investigate the matter pursuant to s64 (b). The notification process outlined above will be followed.
DoJ investigators should consider seeking legal advice or contacting the Ombudsman for further information
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 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 s 77A (1) of the Act.
If at any stage before or during the investigation is appears that the investigation cannot be completed within six months, DoJ may apply to the Ombudsman for an extension of up to a further six months.
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.
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.
DoJ 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:
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:
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.
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.
All information obtained in the course of the investigation must be kept securely.
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.
Under s 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.
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 17 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 s 74(3) of the Act, such information does not have to be given to the discloser if:
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 report should not include any comment adverse to any person unless that person has been given the opportunity to be heard on the matter and their defence is fairly set out in the report.
A public body must take action, under s 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:
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:
If the investigation makes a finding that a Public Officer has engaged, is engaged or proposes to engage in improper conduct, DoJ, will, in accordance with s75 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 s77 of the Act, the Principal Officer will also inform the discloser of the findings of the investigation, and of any steps taken under s 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.
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.
The Welfare Manager must contact the discloser as soon as possible and not more than five (5) working days after being appointed.
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 DoJ, they may report the matter to the Ombudsman.
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 DoJ to address any improper conduct that has been found to have occurred. The discloser must be given reasons for all decisions made by DoJ in respect to a disclosure. All communication with the discloser must be in plain English.
If a discloser reports an incident of detrimental action allegedly taken in reprisal for the making of a disclosure, the Welfare Manager should:
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.
Where a person who makes a disclosure is implicated in improper conduct, DoJ will manage the disclosure and protect the discloser from reprisals in accordance with the Act, the Ombudsman’s Guidelines and these procedures.
DoJ 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 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.
DoJ 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) or other supports should also be provided if required.
DoJ 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 DoJ 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.
DoJ 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 s 60(3) of the Act on 12 April 2021
The procedures will be submitted to the Ombudsman for review in April 2024 to ensure they meet the objectives of the Act and accord with the Guideline and Standards published by the Ombudsman under s 38(1) (c).
Public Interest Disclosures Act 2002
This form is to be completed for each disclosure received. In the event a discloser is raising a complaint against more than one Public Officer, a separate Assessment of Disclosure should be completed for each complaint.
Date of Assessment
Details of Officer (completing assessment):
Summary of Disclosure
(include details of how the disclosure was received, the subject of the disclosure and details of the allegations).
PART 1: IS THE DISCLOSURE A PROTECTED DISCLOSURE?
Is the discloser a Public Officer?
The disclosure must be a current Public Officer. Refer s4 (2) of the Act for the definition of a Public Officer. If the discloser is anonymous, it is enough to be satisfied that the discloser is a Public Officer.
If the discloser is a Contractor, member of the public or no longer a Public Officer at the time of the disclosure, refer them to the Ombudsman or Integrity Commission.
Is the disclosure about a Public Officer?
A disclosure can be made even if the discloser cannot identify the Public Officer (refer s9 of the Act). If a disclosure is about the Principal Officer or the public body, refer the discloser to the Ombudsman or Integrity Commission.
Has the disclosure been made to the right person or body?
Refer s7 of the Act and Reg 8 of the Public Interest Disclosures Regulations 2013.
Does the discloser believe that a Public Officer has, is or proposes to engage in improper conduct?
Does the disclosure relate to improper Conduct? Select all that apply
Conduct that constitutes an illegal or unlawful activity
Conduct that constitutes maladministration
Conduct that constitutes professional misconduct
Conduct that constitutes a waste of public resources
Conduct that constitutes a danger to public health or safety or to both public health and safety
Conduct that constitutes a danger to the environment
Misconduct, including breaches of applicable codes of conduct
Conduct that constitutes detrimental action against a person who makes a public interest disclosure
Conduct that is serious or significant as determined in accordance with the Guidelines issued by the Ombudsman
Does the disclosure concern conduct that occurred on or after 1 January 2001?
This is the only time limitation that is relevant when assessing if a disclosure is a protected disclosure. Delays in making a disclosure any time on or after 1 Jan 2001 can be relevant when deciding whether to investigate a public interest disclosure under s64 of the Act.
Assessment of Answers to PART 1
If ALL the answers to Part 1 are Y, the disclosure is a protected disclosure. If the disclosure is a protected disclosure and the assessment of whether it is a public interest disclosure has not been completed, the discloser should be notified as soon as possible.
If ANY of the answers to the above are N, the disclosure is not protected and the Act does not apply. Refer the discloser to the appropriate body and/or manage the matter under a compliant or grievance policy. In either case, the discloser should be given the reasons in writing.
A copy of this Assessment is to be provided to the Principal Officer as soon as practicable.
PART 2: SHOULD THE PROTECTED DISCLOSURE BE REFERRED TO THE INTEGRITY COMMISSION?
Does the disclosure relate to misconduct, as defined in the Integrity Commission Act 2009?
If Y – should the disclosure be referred to the Integrity Commission under s 29(B) of the Act?
If Y – provide details
If the disclosure is referred to the Integrity Commission, the discloser is to be notified of the referral. The assessment process is now complete.
PART 3: IS THE PROTECTED DISCLOSURE A PUBLIC INTEREST DISCLOSURE?
Are you satisfied that the protected disclosure shows, or tends to show, that the Public Officer to whom the disclosure relates:
A mere allegation without substantiation is not sufficient. The disclosure must contain evidence or point to its existence (name documents, refer to potential witnesses etc) that shows or tends to show that the Public Officer is, has, or is proposing to engage in improper conduct.
Has engaged, is engaged 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 contravention of s19 of the Act?
This determination under s33 of the Act must be made within 45 days of the disclosure being received.
PART 4: IS THERE A GROUND UNDER S64 OF THE ACT NOT TO INVESTIGATE THE PUBLIC INTEREST DISCLOSURE?
Is the public interest disclosure trivial, vexatious, misconceived or lacking in substance?
Compelling reasons will be required to justify not investigating on this ground.
Has the subject matter of the public interest disclosure already been adequately dealt with by the Ombudsman or a public body, statutory authority, Commonwealth statutory authority, commission, court or tribunal?
Has the discloser commenced proceedings in a commission, court or tribunal in relation to the same matter, and does that commission, court or tribunal have power to order remedies similar to those available under this Act?
Did the discloser:
Have knowledge for more than 12 months of the public interest disclosure matter before making the disclosure?
Fail to give a satisfactory explanation for the delay in making the disclosure?
If Y – provide details of this issue being put the discloser and analysis concerning why any explanation provided was not satisfactory.
Does the public interest disclosure relate solely to the personal interests of the discloser?
Most disclosures will contain some element of personal interest. This should only be used as a basis to not investigate in clear circumstances.
Is the public interest disclosure based on false or misleading information?
If Y – provide details and consider whether an offence may have been committed under s87 of the Act.
Has the matter (the subject of the public interest disclosure) already been determined AND this additional disclosure fails to provide significant or substantial new information?
Assessment of Answers to PART 4
If the answers to ALL the questions in PART 4 are N, the disclosure must be investigated in accordance with the public interest disclosure procedures. Referral to the Ombudsman can occur if the internal investigation is not possible or appropriate.
If the answers to one or more of the questions is Y, a decision on whether to investigate the disclosure should be made.
Although the public interest disclosure may not need to be investigated, if an answer to any of the questions in PART 4 is Y – it may still be appropriate to investigate in some circumstances
If the decision is to not investigate further, notify the discloser and the Ombudsman (using the Ombudsman Notification Template) of the assessment determination. The Ombudsman will review the decision.
Is the disclosure a protected disclosure?
Should the protected disclosure be referred to the Integrity Commission?
Is the protected disclosure a public interest disclosure?
Should the public interest disclosure be investigated?
<Name of Principal Officer or Public Interest Disclosure Officer>
Date of Approval:
Public Interest Disclosures Act 2002
Risk applies to…
Select all relevant options
Use the “Risk Type” information to assist
Use the information below to assist in identifying the likelihood of the risk occurring
Use the information below to assist in identifying the consequences should the risk occur
Use the table below to identify your risk rating.
Your public body
The subject of the disclosure
Other employees (including potential witnesses)
Other (e.g. Tasmanian Government, the general public)
<include any actions identified as part of assessment review>
Risk types could include:
What is the likelihood that risk “type” will occur. Consider:
What will happen if the risk is realised? Consider:
(Principal Officer/Public Interest Disclosure Officer)
Assessment Review Date: dd/mm/yyyy
OMBUDSMAN NOTIFICATION FORM
Public Interest Disclosures Act 2002
Date of Disclosure
Public Body Name:
DEPARTMENT OF JUSTICE
Details of Officer (completing assessment):
Date of s 33 determination
(made within 45 days of date of disclosure)
Date of Notification
Determination that disclosure is a public interest disclosure
Notification to be made within 14 days of decision
Determination that disclosure is not a public interest disclosure
Notification to made within 14 days of decision
Decision not to investigate public interest disclosure (under s 64)
Notification to be made within 14 days of decision
Findings of investigation and steps taken under s 75
Investigation to be completed within 6 months unless Ombudsman extension granted.
Copy of original disclosure or record of oral disclosure
Investigation Report including:
Any other material used to make the determination (please list)