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Investigation steps under the Public Interest Disclosure Act 2013

Assumptions

These investigation steps were prepared on the basis of the following assumptions:

  1. The disclosure is made by a current or former public servant (other persons may in some cases make public interest disclosures though other considerations may apply in those cases).
  2. The discloser identifies himself or herself and provides contact details (certain steps below do not need to be taken if the discloser is not identified).
  3. The investigation will not involve any intelligence information or any information that has, or is required to have, a national security or other protective security classification.
  4. There is no possibility that correspondence with the discloser would contain material that would cause any of that correspondence to be exempt under Part IV of the Freedom of Information Act 1982 (Cth).[1]

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Pre-investigation

1. Does the disclosure involve disclosable conduct?

On receipt of a disclosure determine whether the information disclosed shows ‘disclosable conduct’ or it is reasonable to conclude that the public official who made the disclosure believes on reasonable grounds that the information disclosed tends to show disclosable conduct (sections 26 and 29 of the Public Interest Disclosure Act 2013 (PID Act)).

  • Disclosable conduct is conduct engaged in by an agency, public official or contracted service provider which involves illegal conduct, corruption, maladministration, abuse of public trust, deception relating to scientific research, wastage of public money, unreasonable danger to health or safety, danger to the environment or abuse of position or grounds for disciplinary action (section 29 of the PID Act). Section 29 should be carefully considered when a purported disclosure is received.

  • Further information may be requested from the discloser to make this determination (see section 43(4) of the PID Act and section 5.1.3 of the Agency Guide to the Public Interest Disclosure Act 2103, April 2016 Version 2 (Ombudsman Guide)).

  • Where the conduct involves both the Office of the Australian Information Commissioner (OAIC) and one or more other agencies, consult also with the other agency or agencies before making a determination (this is permitted by section 43(4) of the PID Act).

Only if the disclosure satisfies this threshold requirement will the disclosure be allocated and the remaining steps be relevant. If this threshold requirement is not satisfied the discloser should be informed and provided with reasons as to why the disclosure was not allocated and other courses of action that may be available (section 44(3) of the PID Act).

2. Allocation and notification of allocation

An allocation should be made and the principal officer should notify the discloser whether handling of the disclosure has been allocated to the OAIC, another agency or a combination of agencies (sections 43, 44(2) and 50(1)(a) of the PID Act).

  • The disclosure should not be allocated to the OAIC or any other agency if the authorised officer is satisfied on reasonable grounds that there is no reasonable basis on which the disclosure could be considered to be an internal disclosure, that is, to involve disclosable conduct (see point 1 above and section 43(2) of the PID Act).

  • The disclosure should not be allocated, in whole or part, to the OAIC (or any other agency) unless some or all of the disclosable conduct relates to the OAIC or the other relevant agency (section 43(3)(a)(i) of the PID Act).

  • Allocation to more than one agency is only likely to be appropriate where the disclosure includes distinct issues that are best investigated by separate agencies. Where more than one agency is allocated a disclosure, each agency should inform the other of their involvement (paragraph 5.2.2 of the Ombudsman Guide).

  • Allocation of a disclosure received by the OAIC to another agency cannot occur unless an authorised officer of the other agency has consented to the allocation (section 43(6) of the PID Act).

  • The authorised officer of the OAIC should use his or her best endeavours to determine whether or not to allocate, and make an allocation of (where required), the disclosure within 14 days after the disclosure is made to the authorised officer (section 43(5) of the PID Act).

  • The discloser should be notified by the principal officer of the OAIC’s determination on the date that determination is made. The discloser should also be notified, where allocation to the OAIC occurs, that an investigation will be undertaken. In each notification of the allocation of a disclosure, the discloser should be advised of the estimate of the time the investigation of the disclosure will take (sections 44(2), 50(1)(a) and 50(1A) of the PID Act and section 6(2)(a) of the Public Interest Disclosure Standard 2013 (PID Standard)).

  • The notification must provide the discloser with information about the principal officer’s powers to decide not to investigate a disclosure, not to investigate it further or to investigate it under another investigative power (section 9 of the PID Standard).

  • A record of that notification (including date, time and method of notification and contents of notification) should be kept (section 6(2) of the PID Standard).

  • If an allocation, in part or whole, is made to another agency, the principal officer of that other agency should be notified of the allocation and provided with the information disclosed and other relevant details (section 44(1) of the PID Act).

  • The Commonwealth Ombudsman should also be notified if a disclosure is allocated by the OAIC and of associated matters (section 44(1A) of the PID Act) and, if the allocation is to the OAIC, how long that disclosure will take to investigate (Form 1).

  • The OAIC should retain a written record of the decision to allocate the disclosure, the agency or agencies to which the disclosure is allocated, the reasons for the decision and if the allocation is to one or more other agencies confirmation of the consent of those agencies to the allocation (section 6(1) of the PID Standard).

3. Protection of discloser

Consider whether any proactive steps are required to be taken to protect the discloser from reprisal action or to otherwise provide support to the discloser.

  • The procedures established by the OAIC for dealing with public interest disclosures must include assessing risks that reprisals may be taken against the persons who make disclosures (section 59(1)(a) of the PID Act).

  • The principal officer must take reasonable steps to protect OAIC officers from detriment and threats of detriment where a public interest disclosure is made by such an officer (section 59(3) of the PID Act).

  • The OAIC’s procedures must specify how a determination will be made as to the support required to be provided (section 7 of the PID Standard).

  • Part 2, Subdivision B of the PID Act includes additional provisions relating to reprisals.

4. Confidentiality

Implement appropriate confidentiality measures.

  • The procedures established by the OAIC for dealing with public interest disclosures must include providing for confidentiality of investigative processes (section 59(1)(b) of the PID Act).

  • Part 2, Subdivision C of the PID Act includes additional provisions relating to protecting the identity of disclosers.

5. Notification of OAIC Officers

If handling a disclosure is allocated to the OAIC, consider whether there is a need to notify any OAIC officer (or officers) who are the subject of the disclosure.

  • Consider timing of any such notification. Notification does not need to be made at the time of receipt of the disclosure but may be considered when the disclosure has been initially assessed.

  • Consider support for such officer or officers (see section 7.3.3.9 of the Ombudsman Guide).

6. Communication with discloser

Keeping in touch with the discloser to advise of the status of the investigation is recommended. The type of communication, and how often this should occur, will depend on the nature of the investigation. See section 7.5.1 of the Ombudsman Guide.

7. Conflicts of interest

Consider at the commencement and during the course of the investigation whether any conflict of issues may arise.

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Undertaking the investigation

1. Who should undertake?

Determine who should undertake the investigation.

  • The PID Act requires the principal officer to undertake the investigation (section 47(1) of the PID Act). This may be delegated (either to an OAIC officer or another public official who belongs to the agency, which may be an external contractor) with appropriate delegations signed (section 77 of the PID Act). The Commonwealth Ombudsman must be informed of any delegation.

  • The investigation is to only look at the question of whether one or more instances of disclosable conduct occurred – whether included in the original disclosure or discovered during the investigation.

  • In the following, the principal officer is referred to however each reference to the principal officer includes any person appointed as a delegate to undertake the investigation.

2. Timing for completion

The investigator has 90 days after the relevant disclosure was allocated to the OAIC to complete the investigation (section 52(1) of the PID Act).

  • Completion occurs when the principal officer has prepared the investigation report (section 52(2) of the PID Act).

  • The Ombudsman may extend the 90 day period if this is requested by the principal officer of the OAIC (section 52(3)(b) of the PID Act), using Form 3. The Ombudsman must inform the discloser of the extension and the reasons for the extension (section 52(5)(a) of the PID Act) and the principal officer must inform the discloser of the progress of the investigation (section 52(5)(b) of the PID Act).

3. Discretion

An investigation is to be undertaken as the principal officer sees fit (section 53(1) of the PID Act).

  • At all times procedural fairness must be observed. This requires that each person against whom allegations are made is entitled to:
    • Have the principal officer act fairly and without bias in conducting the investigation.
    • Be provided with the substance of allegations and evidence against them if an adverse finding is going to be made about their conduct.
    • Have a reasonable opportunity to respond (see section 7.3.3.8 of the Ombudsman Guide).
  • The formality of the investigation should be commensurate with the seriousness and nature of the alleged disclosable conduct and the importance of the evidence (section 7.3.3.2 of the Ombudsman Guide).
  • The discretion in conducting the investigation is subject to the requirement to comply with specific obligations in the PID Act and the PID Standard, as discussed below.
  • The steps below are suggested steps and would need to be considered on a case by case basis.

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  1. The investigator will first review the disclosure.
  2. The investigator will determine (and make requests for same):
    1. Whether it is necessary to interview the discloser and/or obtain additional clarification or material from the discloser.
      • This may be to seek clarification of the material provided in the disclosure. It will also be necessary to interview the discloser at the end of the process to put to the discloser any proposed findings which are inconsistent with the material provided by the discloser.
      • Preference would be to undertake interviews of the discloser in person however the discloser should be consulted as to his or her preferred method of interview.
      • Where appropriate, questions may be provided in advance of the interview.
    2. What existing records of the OAIC should be reviewed.
    3. What officers of the OAIC are required to be interviewed, including any officer (or officers) who are the subject of the disclosure (in person or by telephone).
      • Preference would be to undertake interviews in person however the relevant officer should be consulted.
      • Where appropriate, questions may be provided in advance of the interview.

    (Section 53(2) of the PID Act – which allows the principal officer to obtain information from any person, or make any inquiries, as the principal officer thinks fit.)

    Note also:

    1. The purpose of the PID Act investigation is to determine if any disclosable conduct occurred (see sections 47(1) and (2) of the PID Act) and therefore the initial assessment of the disclosure, and the interviews, review of records and other investigative action undertaken, should focus only on this issue. The disclosable conduct may be that contained in the disclosure or which becomes apparent from information obtained in the course of the investigation.
    2. There is no power to compel witnesses to attend interviews, answer questions or provide documents but all current public officers are obliged to use their best endeavours to assist in a PID investigation (section 61(1) of the PID Act).
  3. Review records.
  4. Conduct interviews (after the disclosure is fully reviewed and all records reviewed to ensure that when a person is interviewed all necessary questions are asked).
    1. Ensure that processes are in place so that interviews take place on a confidential basis and on the basis that to the extent possible the confidentiality of both the discloser and any person the subject of the disclosure is preserved.
    2. In conducting interviews, Part 3 of the PID Standard must be complied with. This requires:
      1. The interviewee should be informed of the identity and function of each person conducting the interview, the process for the interview the authority of the principal officer to conduct the investigation and general information about the process of conducting a PID investigation (section 10(1) of the PID Standard and section 7.3.3.5 of the Ombudsman Guide).
      2. No recording (visual or audio) should be made without the interviewee’s knowledge (section 10(2)(a) of the PID Standard).
      3. The interviewee should be given the opportunity to provide a final statement (section 10(2)(b) of the PID Standard).
      4. The interviewee should be advised of the protections under section 57 of the PID Act (section 10(1)(d) of the PID Standard). That section provides that a person is not subject to any criminal or civil liability because the person gives information, produces a document or answers a question if the person does so in response to request from the investigator and the information, document or answer is relevant to the investigation.
  5. Decisions on whether evidence is sufficient to prove a fact must be determined on the basis of the balance of probabilities (see section 11 of PID Standard) and findings of fact must be based on logically probative and relevant evidence (see section 12 of the PID Standard).
  6. Records of interviews and document reviews are to be retained by the investigator. A record of an interview should be provided to the interviewee for confirmation of accuracy.
  7. Continue to assess at all times during the investigation:
    1. Whether a different allocation should be made to the initial allocation (section 45 of the PID Act).
      1. This will only be relevant if during the course of the investigation it becomes apparent that the potential disclosable conduct relates in part or whole to an agency other than the OAIC.
      2. The processes that apply on a reallocation are the same as apply for the initial allocation.
    2. Whether or not to continue the investigation. Under section 48 of the PID Act there are a number of circumstances in which a determination may be made not to continue the investigation. These circumstances include, for example, if:
      1. the information does not, to any extent, concern serious disclosable conduct;
      2. the disclosure is frivolous or vexatious; or
      3. it is impracticable to investigate the disclosure for one of a particular list of reasons.

        The discloser must be informed as soon as reasonably practicable if a decision is made not to investigate the disclosure further (section 50(1)(b) of the PID Act). That notification must specify the reasons for the decision and other courses of action under Commonwealth laws that might be available to the discloser (section 50(2) of the PID Act). The Ombudsman must also be advised if the investigation is discontinued (section 50A(1) of the PID Act and using Form 2).

    3. Whether another type of investigation under another Commonwealth law is appropriate (section 47(3) of the PID Act). If yes, a report must be prepared (see below) and the PID Act investigation will end. The Ombudsman must be advised if the investigation is discontinued.
      • Where a determination is made by the principal officer in the course of the investigation that a suspected fraud has occurred it would be appropriate to stop the investigation under the PID Act and instead undertake an investigation in accordance with the rules relating to fraud under the Public Governance, Performance and Accountability Act 2013 (section 53(4) of the PID Act).
      • Where a determination is made by the principal officer in the course of the investigation that a breach of the APS Code of Conduct may have occurred it would be appropriate to stop the investigation under the PID Act and instead undertake an investigation in accordance with the procedures established by the OAIC under section 15(3) of the Public Service Act 1999 (section 53(5)(b) of the PID Act).
    4. Whether any information should be provided to any police force (section 56 of the PID Act).
      • There is a discretion to notify the relevant police force in the event that the person conducting the investigation suspects on reasonable grounds that an offence has been committed under any Australian law (section 56(1) of the PID Act).
      • However, if the offence is punishable by imprisonment for 2 or more years, the relevant police force must be notified (section 56(2) of the PID Act).
  8. Prepare a PID Act investigation written report

    A report of the investigation must be prepared (section 51(1) of the PID Act). This is required to cover:

    1. The matters considered in the investigation (section 51(2)(a) of the PID Act). If parts of the disclosed information were not investigated this should be explained (section 7.3.5 of the Ombudsman Guide).
    2. How long the investigation took (section 51(2)(b) of the PID Act).
    3. The steps taken to gather evidence (section 13(c) of the PID Standard) and a summary of the evidence (section 13(d) of the PID Standard).
    4. The principal officer’s findings (sections 13(d) of the PID Standard and 51(2)(c) of the PID Act), including whether there have been one or more instances of disclosable conduct (section 13(a) of the PID Standard). If the investigation was inconclusive this should be stated (section 7.3.5 of the Ombudsman Guide).
    5. Where disclosable conduct is identified, set out the regulations, rules, administrative requirements or similar matters to which that disclosable conduct relates (section 13(b) of the PID Standard).
    6. Any action taken or proposed to be taken to address the findings (section 51(2)(d) of the PID Act).
    7. Any recommendations for other action (section 51(2)(d) of the PID Act and section 13(d) of the PID Standard).
    8. If any claims or evidence of detrimental action against the discloser were found these must be set out, as well as how the OAIC dealt with this (section 51(2)(e) of the PID Act). It is important to consult with the authorised officer who allocated the disclosure and any person involved in the initial risk assessment for the discloser in preparing this part of the report (section 7.3.5.1 of the Ombudsman Guide).

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Post investigation

1. Distribute the investigation report

  1. A copy of the report must be provided to the discloser (section 51(4) of the PID Act).
    • Redactions may be permitted in accordance with section 51(5) of the PID Act. For example, redactions may be made to ensure the identification of other persons is not possible.
  2. It may be appropriate to notify the person or persons who were the subject of the disclosure of the outcome of the investigation.
    • It is not likely to be appropriate to provide to that person or persons a copy of the investigation report.
  3. The Ombudsman does not need to be provided with a copy of the report or advised that the investigation is complete. The Ombudsman must be notified of the number of public interest disclosures etc that are made to the OAIC on an annual basis (section 76(3) of the PID Act and section 15 of the PID Standard).

2. OAIC to act on recommendations (if any)

Section 59(4) of the PID Act requires the principal officer to ensure that appropriate action is taken in response to recommendations in any investigation report.

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Footnotes

[1] See exceptions under ss 50(3)(a), 51(5)(b)(i) and 76(4)(b)(i) of the PID Act to certain requirements to give information to a discloser or the Commonwealth Ombudsman where information could be exempt for the purposes of Part IV of the Freedom of Information Act 1982.

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