7. Procedures for Principal Officers

7.1 Role of Principal Officers

  1. The Secretary of PM&C is the Principal Officer for the purposes of the PID Act. The Secretary may delegate all or some of their powers as Principal Officer under the PID Act to:
    1. other PM&C employees; or
    2. other public officials who belong to the agency. 
  2. Where the Principal Officer is referred to in these Procedures, it should be understood as including a reference to the Secretary and persons who may be delegated powers of the Principal Officer under the PID Act from time to time.

7.2 Responsibilities of Principal Officers

  1. The Principal Officer is responsible for considering PIDs that are allocated to PM&C by an Authorised Officer. The following steps must be taken in performing this function:
    1. notify the discloser of the allocation;
    2. consider whether an investigation is required;
    3. if an investigation is required, conduct the investigation; and
    4. comply with the relevant post-investigation notification requirements.
  2. The Principal Officer has 90 days from the allocation date in which to complete an investigation report in relation to a PID that is allocated to them. If further time is required, the Principal Officer must apply to the Ombudsman for an extension of time prior to the expiry of the relevant period5.

Stage 1: Notify the discloser

  1. As soon as practicable after a PID is allocated to a Principal Officer for consideration (usually within 14 days), the Principal Officer must inform the discloser that the following options are available to the Principal Officer in considering their PID:
    1. decide not to investigate the PID further; or
    2. decide to investigate the PID under a separate investigative power; or
    3. decide to investigate the disclosure under another law or power; or
    4. decide to investigate the PID.
  2. This step may be taken after the Principal Officer has reached a decision under Stage 2 or as a first step in Stage 3.

Stage 2: Consider whether an investigation is required

  1. When a PID is allocated to a Principal Officer, the Principal Officer must consider whether the discretion in s48 of the PID Act not to investigate the PID should be exercised. 
  2. The discretion is available in circumstances where the Principal Officer is satisfied that any of the grounds listed in s48 of the PID Act apply. These include:
    1. the discloser is not, and has not been a public official; or
    2. the information does not concern serious disclosable conduct; or
    3. the PID is frivolous or vexatious; or
    4. the information is the same or substantially the same as information previously disclosed under the PID Act and a decision had been previously made under s48 not to investigate or further investigate the disclosure or the earlier disclosure has been, or is being, investigated as a disclosure investigation; or
    5. the conduct disclosed or substantially the same conduct, is being investigated under another law or power and the Principal Officer is satisfied on reasonable grounds that it would be inappropriate to conduct a PID investigation at the same time; or
    6. the conduct disclosed, or substantially the same conduct, has been investigated under another law or power, and the Principal Officer is reasonably satisfied that there are no further matters concerning the conduct that warrant investigation; or
    7. the Principal Officer is satisfied, on reasonable grounds, that the conduct disclosed would be more appropriately investigated under another law or power (unless this view is reached because the conduct disclosed raises a corruption issue)
    8. the discloser, an Authorised Officer of the agency, or a Principal Officer or Authorised Officer of another agency has informed the Principal Officer that the discloser does not wish investigation of the internal disclosure to be pursued, and the Principal Officer is satisfied on reasonable grounds that there are no matters concerning the disclosure that warrant investigation; or
    9. it is impracticable for the PID to be investigated:
      1. because the discloser's name and contact details have not been disclosed; or
      2. because the discloser refuses or fails, or is unable, to give, for the purposes of the investigation, such information or assistance as the person conducting the investigation asks the discloser to give; or
      3. because of the age of the information. 

If the Principal Officer decides to investigate disclosure

  1. If the Principal Officer decides that the discretion in s48 of the PID Act does not apply to the PID, they are required to commence an investigation into the PID and should proceed to Stage 3: Investigation, unless there is a stop action direction under the NACC Act.

If the Principal Officer decides not to investigate or further investigate disclosure

  1. If the Principal Officer decides not to investigate (or further investigate) a disclosure under the PID Act, they must:
    1. if reasonably practicable, give written notice to the discloser that the Principal Officer has decided not to investigate (or further investigate) the disclosure, identifying:
      1. the reasons for the decision not to investigate; and
      2. if the Principal Officer decides that the disclosure would be more appropriately investigated under another law or power, details of:
        1. the other law or power;
        2. the agency or other person or body to which the conduct has been or will be referred;
        3. the steps taken or proposed to be taken for the conduct to be referred or to facilitate referral. The Principal Officer may delete from the reasons any reasons that would cause the document:
      3. to be exempt for the purposes of Part IV of the Freedom of Information Act 1982;
      4. to have or be required to have a national security or other protective security classification; or
      5. to contain intelligence information.
    2. give written notice to the Ombudsman of the decision not to investigate (or further investigate) and the reasons for that decision. If the Principal Officer decides that the disclosure would be more appropriately investigated under another law or power, the Principal Officer must provide the Ombudsman with details of:
      1. the other law or power;
      2. the agency or other person or body to which the conduct has been or will be referred;
      3. the steps taken or proposed to be taken for the conduct to be referred or to facilitate referral.

If the disclosure cannot be investigated because of a stop action direction

  1. If the disclosure cannot be investigated (or cannot be investigated further) because of a stop action direction under the NACC Act, the Principal Officer must give written notice of the stop action direction to the discloser and the Ombudsman as soon as reasonably practicable.
  2. The Principal Officer must, as soon as reasonable practicable, inform the discloser if the Principal Officer investigates, or further investigates, a disclosure that is no longer the subject of a stop action direction under the NACC Act.

Stage 3: Investigation

  1. When the Principal Officer has decided to investigate a PID, if reasonably practicable, the Principal Officer will give written notice to the discloser that:
    1. they are required to investigate the disclosure;
    2. the estimated length of the investigation; and
    3. the discretion to cease investigating in s48 of the PID Act remains available.

Conducting an investigation

  1. The Principal Officer may conduct an investigation into a disclosure in any manner they see fit. 
  2. The Principal Officer may investigate the matter personally, or may refer the matter to an investigator to assist in determining whether there are one or more instances of disclosable conduct.
  3. The Principal Officer must investigate whether there are one or more instances of disclosable conduct. Instances of disclosable conduct may relate to information that is disclosed or information obtained in the course of the investigation, unless the Principal Officer is satisfied on reasonable grounds that such information is tangential or remote to the disclosure. 
  4. Investigations should be conducted in a manner consistent with the Public Interest Disclosure Standard 2013 (Cth) and the general principles set out below.
  5. The following general principles apply to the conduct of investigations:
    1. maintaining the confidentiality of the discloser's identity unless consent to disclose their identity has been provided;
    2. documentation of actions, conversations and decisions relating to a disclosure should be kept;
    3. a decision about whether evidence is sufficient to prove a fact will be determined on the balance of probabilities;
    4. a finding of fact will be based on logically probative evidence;
    5. the evidence relied on in an investigation must be relevant to the investigation;
    6. the investigation will be conducted in accordance with the principles of procedural fairness;
    7. a person who is the subject of the investigation will have an opportunity to respond or provide information;
    8. if an interview is to be conducted as part of the investigation:
      1. it complies with the requirements set out in the PID Standard 2013 including:
        1. informing the interviewee of the identity and function of the interviewer/s;
        2. informing the interviewee of the process of conducting an investigation;
        3. informing the interviewee about the Principal Officer's authority and role in the investigation under the PID Act;
        4. informing the interviewee about the protections in Part 2 of the PID Act;
        5. ensuring no audio or visual recording of the interview is made without the interviewee's knowledge;
        6. providing the interviewee with a final opportunity to make a statement at the conclusion of an interview; and
        7. ensuring any such final statement made by an interviewee is included in the record of the interview; and
      2. the person being interviewed is offered the opportunity to bring a support person with them to the interview; 
    9. a decision on whether there is sufficient evidence to prove a fact will be determined on the balance of probabilities; and
    10. findings will be made on the basis of relevant and logically probative evidence.
  6. The Principal Officer may, as part of their investigation into a PID allocated to them, adopt findings contained in a report of an investigation or inquiry under:
    1. another law or power;6 or
    2. the PID Act.
  7. During an investigation of a disclosure, the Principal Officer should continue to consider whether one or more of the discretionary grounds in s48 of the PID Act applies to the disclosure. If the Principal Officer forms the view that one or more grounds apply to the PID, the Principal Officer should cease investigating and follow the appropriate process in Stage 2 (including with respect to notification and record keeping).

Notifying police

  1. If, during an investigation into a PID, the Principal Officer suspects on reasonable grounds that some or all of the information disclosed or obtained during the investigation is evidence of an offence against a law of the Commonwealth, a State or a Territory, the Principal Officer has the following notification obligations:
    1. if the offence is punishable by a period of imprisonment of at least two years, they must notify a member of the appropriate police force responsible for investigating the offence unless the investigator suspects on reasonable grounds that the relevant information raises a corruption issue and the corruption issue has already been referred to the NACC or IGIS (as relevant) or that agency is already aware of the issue; or
    2. if the offence is punishable by a period of imprisonment of less than two years, the Principal Officer may notify a member of the appropriate police force.
  2. However, the Principal Officer's power to notify police is not limited by the PID Act.

Obtaining information

  1. The Principal Officer can obtain such information and make such enquiries as they consider appropriate in conducting an investigation.
  2. Public officials are required to use their best endeavours to assist the Principal Officer, Ombudsman or the IGIS in the conduct of an investigation under the PID Act.

What does procedural fairness require?

  1. The requirements of procedural fairness may vary depending on the circumstances. Generally, it requires:
    1. the decision-maker to act fairly and without bias;
    2. at the point of an investigation where an adverse finding is likely to be made about a person's conduct: 
      1. the person has a right to know the substance of the allegations and any evidence against them; and
      2. the person is entitled to have a reasonable opportunity to respond to the allegations and any evidence against them.

Report of the investigation

  1. The Principal Officer must complete the investigation, by preparing a report of the investigation, within 90 days after:
    1. the initial allocation or reallocation of the disclosure to the department;
    2. in the case of a re-investigation, the day on which the Principal Officer decides to reinvestigate the disclosure; or
    3. to the extent that a stop action direction under the NACC Act prevented the investigation, the day on which the Principal Officer becomes aware that a stop direction under the NACC Act which prevented the investigation no longer applies
  2. The Ombudsman may extend, or further extend, the 90 day period by such period as the Ombudsman considers appropriate on application by the Principal Officer.  If the Ombudsman grants an extension, the Principal Officer will, as soon as reasonably practicable, inform the discloser of the progress of the investigation.
  3.  When an investigation is completed, the Principal Officer must prepare a report of the investigation. This report must set out:
    1. the matters considered in the course of the investigation; and
    2. an explanation of the steps taken to gather evidence; and
    3. the duration of the investigation; and
    4. a summary of the evidence;
    5. the Principal Officer's findings (if any) including whether there have been one or more instances of disclosable conduct established; and
    6. if disclosable conduct is established, the report must set out the regulations, rules, administrative requirements or similar matters to which the disclosable conduct relates;
    7. the action (if any) that has been, is being, or is recommended to be, taken; and 
    8. claims of any reprisal action taken against the discloser, or any other person, that relates to the matters considered in the course of the investigation, together with any related evidence, and PM&C's response to those claims and that evidence.

Stage 4: Post-investigation

  1. Within a reasonable time after completing an investigation, the Principal Officer must give a copy of the report to the discloser and the Ombudsman.7
  2. The Principal Officer may delete from the copy of the report given to the discloser any material:
    1. that is likely to enable the identification of the discloser or another person; or
    2. would be exempt for the purposes of Part IV of the Freedom of Information Act 1982, would require a national security or other protective security clearance, contains intelligence information or contravenes a designated publication restriction as defined in the PID Act.
  3. The Principal Officer may delete from a copy of the report given to the Ombudsman any material:
    1. that is likely to enable the identification of the discloser or another person; or
    2. contravenes a designated publication restriction as defined in the PID Act.
  4. If an investigation report contains recommendations, the Principal Officer should ensure that they provide the recommendations to a person within the Department who would be able to consider and address those recommendations.

References

  1. There are forms available on the Ombudsman website where extensions of time can be requested.↩
  2. Procedures established under a law of the Commonwealth are considered to be a law of the Commonwealth.↩
  3. The PID Act sets out particular information which may be removed from a copy of a report given to a discloser and the Ombudsman. Please see the PID Act for more information.↩