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 Public Interest Disclosure procedures Procedures for dealing with public interest disclosures in the Digital Transformation Agency-672464217805Digital Transformation Agency? Commonwealth of Australia (Digital Transformation Agency) 2017With the exception of the Commonwealth Coat of Arms and where otherwise noted, this product is provided under a Creative Commons Attribution 4.0 International Licence. ()The Digital Transformation Agency has tried to make the information in this product as accurate as possible. However, it does not guarantee that the information is totally accurate or complete. Therefore, you should not solely rely on this information when making a commercial decision.Digital Transformation Agency is committed to providing web accessible content wherever possible. If you are having difficulties with accessing this document, please email dtacomms@.au.Version: Legal 1801Contents TOC \h \u \z 1.0 PAGEREF _gjdgxs \h Introduction1Public Interest Disclosure Act 2013 (PID Act)1Relationship to other agency policies1What are Public Interest Disclosures?2What is ‘disclosable conduct’?3What is not disclosable conduct?42.0 PAGEREF _3dy6vkm \h Support, protection and reprisals5Protecting the discloser’s identity5Immunity from liability6Reprisal7Risk Assessment7Support for disclosers8Support for a person against whom a disclosure has been made9How to report reprisal action93.0 PAGEREF _35nkun2 \h Roles and responsibilities10Public officials10Chief Executive Officer (Principal Officer)10Authorised Officers11Supervisors and managers11People Branch114.0 PAGEREF _4i7ojhp \h Making a public interest disclosure13Who can you make a report to?13Where to get initial advice13What should a disclosure include?14Circumstances giving rise to protections14Anonymous disclosures15What happens after you make a disclosure?165.0 PAGEREF _1pxezwc \h Procedures for supervisors and managers17Gather and record the information17Supervisor and manager obligations186.0 PAGEREF _147n2zr \h Procedures for Authorised Officers19Step 1: Does the disclosure meet the requirements for a PID19If the Authorised Officer is satisfied:20If the Authorised Officer is not satisfied:20Step 2: Gather and record information21Disclosure through a supervisor or manager21Disclosure made directly to the Authorised Officer21Step 3: Allocate the disclosure22Seek consent22Allocating to another agency23Inform and notify allocation decision24Step 4: Risk assessment24Risk Matrix25Risk mitigation strategy27Monitor and review risks27Support for disclosers and other named parties287.0 PAGEREF _37m2jsg \h Procedures for investigator (delegate of the Principal Officer)29Step 1: Provide initial information to discloser29Step 2: Consider whether to investigate the disclosure29Step 3: Notify the discloser and Ombudsman30If the disclosure will not be investigated30If the disclosure will be investigated31Step 4: Investigate the matter31General principles31Additional procedures required in particular circumstances32Obtaining information33Referral of information to police34Procedural fairness35Step 5: Prepare an investigation report36Content of report36Step 6: Provide report to discloser378.0 PAGEREF _4bvk7pj \h Confidentiality389.0 PAGEREF _2r0uhxc \h Record Keeping3910.0 PAGEREF _1664s55 \h Appendix40Appendix 1: What is a public interest disclosure?41Appendix 2: Supervisor or manager checklist42Appendix 3: Authorised Officer checklist43Appendix 4: Indicators of higher risk of reprisal45Appendix 5: Examples of identified risks46Appendix 6: Internal disclosure flowchart47IntroductionPublic Interest Disclosure Act 2013 (PID Act)The Public Interest Disclosure Act 2013 (PID Act), commenced on 15 January 2014, and promotes integrity and accountability in the Australian public sector by encouraging the disclosure of information about suspected wrongdoing, protecting people who make disclosures and requiring agencies to take action in relation to public interest disclosures. The purpose of the PID Act is to:encourage and facilitate the disclosure of information by public officials about suspected wrong doing in the public sectorensure that public officials who make public interest disclosures are supported and protected from adverse consequencesensure that disclosures by public officials are properly investigated and addressed.Section 59 of the PID Act requires the Chief Executive Officer or their delegate (as Principal Officer under the PID Act) to establish procedures for facilitating and dealing with public interest disclosures relating to the Digital Transformation Agency (DTA).Relationship to other agency policiesThe PID Act complements existing complaint handling schemes such as those relating to fraud or Code of Conduct issues. To obtain a full picture of a public official’s rights and responsibilities, this procedure should be read in conjunction with the relevant DTA policies and procedures as relevant.In some circumstances there may be other ways for a discloser to report suspected wrongdoing for matters that are not included in the PID Act. The Commonwealth Ombudsman has prepared an information sheet ‘Finding the right outcome’ to assist individuals understand their options outside the PID scheme. This is available on the Commonwealth Ombudsman’s website .au What are Public Interest Disclosures?It is important to note that not all disclosures of information that are made to the DTA will be a “public interest disclosure” for the purposes of the PID Act. A disclosure of information will only be a PID in accordance with these procedures if it meets the following requirements:It is made by a ‘public official’ or a person who has been deemed a public official (s70 of the PID Act). It is a disclosure about another public official or agencyThe information tends to show, or the discloser believes on reasonable grounds that the information tends to show, one or more instances of ‘disclosable conduct’ as defined by s29 of the PID Act The disclosure is made to an appropriate person (to a supervisor or manager, or to an Authorised Officer). In limited circumstances, a public official may disclose such information to a person outside government – this is known as an ‘external disclosure’ or ‘emergency disclosure’. For more information please refer to the Commonwealth Ombudsman’s ‘Agency Guide to the PID Act’ available on the Commonwealth Ombudsman’s website .au To gain the protections the PID Act provides to disclosers, a public official must make a disclosure to an appropriate person. Accordingly, it is important that persons contemplating making a disclosure of information carefully review the contents of the PID Act and seek their own independent legal advice where appropriate, in order to determine whether the disclosure can be made in a way that attracts the protections of the PID Act. Public officials may also make anonymous disclosures. Further information is available in section 2.0 Support, protection and reprisals. What is ‘disclosable conduct’?The full definition of disclosable conduct is set out in s29 of the PID Act. That definition applies for the purposes of these procedures. In summary, disclosable conduct is conduct by an agency, a public servant or a government contractor that: contravenes an Australian law. in a foreign country, contravenes a foreign law that applies to the agency, official or service provider. perverts the course of justice. is corrupt. constitutes maladministration, including conduct that is based on improper motives or is unreasonable, unjust, oppressive or negligent. is an abuse of public trust. involves fabrication, plagiarism or deception relating to scientific research, or other misconduct in relation to scientific research, analysis or advice. results in wastage of public money or property. unreasonably endangers health and safety. endangers the environment. involves abuse of the public official’s position, or could, if proven, give reasonable grounds for disciplinary action against the public official. What is not disclosable conduct? Individual grievances or workplace conflicts are generally appropriately dealt with by other existing agency and public sector mechanisms, rather than be the subject of an investigation under the PID Act. Conduct that is wholly private and has no bearing on the position as a public official is not disclosable conduct. Matters that reflect private or personal interest are generally not matters of public interest, including: personal disagreement with a government policy or proposed policy. personal disagreement with an action or proposed action by a Minister, the Speaker of the House of Representatives or the President of the Senate. expenditure or proposed expenditure related to such policy or action. If a staff member has a complaint that does not fall within the definition of ‘disclosable conduct’ but nevertheless wishes to raise the issue with DTA, or if the staff member simply wishes to raise a matter informally, the staff member should make contact with People Branch:Email: HR@.au Phone:? 0428 061 462 Support, protection and reprisalsA discloser is subject to protection from reprisal under the PID Act unless such a disclosure does not fall within the Act, or these procedures do not apply. Those protections include confidentiality and immunity from criminal and civil liability or disciplinary action. However, making a disclosure under the PID Act does not protect a discloser from their own wrongdoing. A person who intentionally makes a false or misleading disclosure will not receive protections under the PID Act. When a disclosure is made, a risk assessment will be completed that considers the risk of reprisal action being taken against the discloser. DTA will provide support to disclosers, regardless of the result of that risk assessment, and where the risk of reprisals is greater than ‘low’ DTA will take steps to mitigate that risk. Further information is available in section 6.0 Procedures for Authorised Officers, (Step 3: Risk assessment).Protecting the discloser’s identityA person will commit an offence if they disclose or use information that is likely to enable the identification of the discloser unless the discloser consents, the identifying information has already been lawfully published, or the disclosure or use:is for the purposes of the PID Act is required under another Commonwealth law or a prescribed State; or Territory law is in connection with the Ombudsman’s functions under s 5A of the Ombudsman Act In order to protect a discloser’s identity, the DTA will: limit the number of people who are aware of the discloser’s identity or information that would tend to identify them.remind each person who has the information that they should keep it confidential and that unauthorised disclosure may be a criminal offence. ensure the discloser can communicate with a support person, the Authorised Officer or investigator without alerting other staff.assess whether anyone who is aware of the discloser’s identity may have a motive to take reprisals against the discloser or impede the progress of the investigation, and monitor the situation.Immunity from liabilityA person who makes a public interest disclosure is not subject to any civil, criminal or administrative liability (including disciplinary action) for making the disclosure. No contractual or other remedy may be enforced, and no contractual or other right may be exercised, against a person on the basis of the public interest disclosure. A contract to which the discloser is a party cannot be terminated because of making a public interest disclosure.However, these immunities do not apply if the discloser:knowingly makes a statement that is false or misleading.makes a disclosure knowing that it contravenes a designated publication restriction and without a reasonable excuse for doing so.Making a disclosure about matters that include a discloser’s own wrongdoing does not protect a discloser from liability for their wrongdoing.ReprisalThe DTA will not tolerate any reprisal action against a person who makes a public interest disclosure. A person who makes a public interest disclosure will be protected from reprisal in the following ways:it is a criminal offence to cause detriment to a person because it is suspected or believed that they have made or will make a public interest disclosure.a discloser has the right to apply for an injunction to prevent a reprisal.a discloser has the right to apply for compensation for loss, damage or injury suffered from a reprisal.Every allegation of reprisal will be taken seriously, recorded and responded to. All those involved in handling the public interest disclosure and aware of the discloser’s identity – which may include the Authorised Officer, investigator, supervisor, manager and anyone else to whom the discloser has agreed to reveal their identifying information or who has that information for the purposes of the PID Act, will monitor the work environment for signs of detriment and if necessary, take corrective action early.Risk AssessmentWhen an Authorised Officer decides to allocate a PID they will assess the risk of reprisal action against the disclosure, as well as strategies to deal with any identified risks. Further information is contained in the section 6.0 Procedures for Authorised Officers, (Step 3: Risk assessment).What is reprisal?Reprisal occurs if someone causes, by an act or omission, any detriment to another person because they believe or suspect that person, or anyone else, may have made or intends to make a public interest disclosure.‘Detriment’ includes any disadvantage to a person, including dismissal, injury in their employment, discrimination between them and other employees or alteration of their position to their disadvantage.What is not a reprisal?Administrative action that is reasonable to protect the discloser from detriment is not a reprisal. For example, where a person has made a disclosure in relation to practices in their immediate work area, it may be appropriate to transfer them to another work area to ensure they are not harassed or victimised.Making a disclosure also does not exclude the discloser from reasonable management action for unsatisfactory performance or wrongdoing on their part – such action is not a reprisal. Support for disclosersRegardless of the outcome of the risk assessment, DTA will take all reasonable steps to protect public officials who have made a PID from reprisals. This may include taking one or more of the following actions:with the discloser’s consent, appoint a support person to assist the discloser and/or to be a point of contact should any reprisal action rm the discloser of the progress of the investigation.advise the discloser of the availability of DTA’s Employee Assistance Program (EAP).where there are any concerns about the health and welling of the discloser, liaising with officers responsibility for work health and safety in DTAtransferring the discloser to a different work area after consultation with the discloserSupport for a person against whom a disclosure has been madeDTA will also take steps to support any employee who is the subject of a PID which proceeds to investigation. This may include taking one or more of the following actions:advise the employee of their rights and obligations under the PID Act including the employee's rights to procedural fairness. inform the employee of the progress of the investigation.advise the employee of the availability of the Employee Assistance Program (EAP).ensure the identity of the employee is kept confidential as far as reasonably practicable.where there are any concerns about the health and wellbeing of the employee, liaising with officers responsible for work health and safety. transferring the employee to a different area within the workplace after consultation with the employee How to report reprisal actionIf a discloser believes that detrimental action has been or is being taken against them in reprisal for making a report, they should tell an Authorised Officer or the PID advice team immediately through PIDadvice@.au Roles and responsibilitiesPublic officialsA person must be a current or former public official to make a disclosure under the PID Act. This broad term includes Australian Government public servants, statutory office holders and staff of Commonwealth contracted service providers. An Authorised Officer can also deem an individual to be a public official if they reasonably believe the individual has information about wrongdoing and proposes to make a disclosure (s70 PID Act).All public officials have an obligation to report serious wrongdoing by another public official or agency.Public officials can make an anonymous disclosure if they wish, however this may impact on the ability for an Authorised Officer or investigator to seek further information where required, or to update the discloser on the progress of the PID.Further information on anonymous disclosures is available in section 4.0: Making a public interest disclosure.Chief Executive Officer (Principal Officer)The Chief Executive Officer is the Principal Officer under the PID Act. The Principal Officer or their delegate has specific responsibilities that include establishing PID procedures, investigating and providing reports on disclosures and ensuring that appropriate action is taken in relation to recommendations arising from a PID investigation.The Chief Executive Officer has delegate all powers and functions under the PID Act to the Chief Human Resource Officer. All other PID delegations are listed in the DTA People Delegations available on DTA’s intranet.Authorised OfficersAuthorised Officers are appointed by the Principal Officer (or delegate). For the purposes of these procedures, the names and contact details for DTA’s Authorised Officer’s is listed on DTA’s intranet.Authorised Officers have a responsibility to receive reports of disclosable conduct and determine whether they allocate, or not allocate the disclosure under the PID Act.Authorised Officers can be contacted directly or through PIDadvice@.au Supervisors and managersSupervisors and managers play a key role in ensuring that DTA’s workplace culture supports the making of public interest disclosures in a safe environment. If a public official discloses information to a supervisor and the supervisor has reasonable grounds to believe that the information concerns, or could concern, disclosable conduct, the supervisor must give the information to an appropriate Authorised Officer as soon as reasonably practicable.It is important to note that all matters referred to an Authorised Officer must be kept confidential to all other parties (including the supervisor or managers, line manager).People BranchEmployees are able to contact People Branch for information and advice on the public interest disclosure scheme, and other complaint handling processes.Please note, if you are a supervisor or Authorised Officer, you are able to contact People Branch to obtain advice on any potential PID you may have received. Please note under these circumstances you should de-identify any information before sharing with others for confidentiality reasons.Email:PIDadvice@.au Further information on the role and responsibilities of individuals in the PID Act can be found on the Commonwealth Ombudsman’s website .au Making a public interest disclosureWho can you make a report to? A public interest disclosure can be made verbally or in writing:by a DTA employee to their supervisor (who passes it onto an Authorised Officer)directly to a DTA Authorised Officerto a DTA Authorised Officer via PIDadvice@.au through the DTA PID team via phone on 0427 196 791 (who will connect you with an Authorised Officer)You can also make a disclosure by mail (all envelopes and packages should be clearly marked ‘confidential – open by addressee only’):DTA PID Team c/- People BranchPO Box 457, Canberra 2600 You can also make a disclosure anonymously. Further information can be found in this section, under ‘anonymous disclosures’.Where to get initial adviceIf a public official is considering making a disclosure, the public official can, in the first instance, seek advice from People Branch at PIDadvice@.au or contact the Commonwealth Ombudsman’s PID team at:Email: PID@.au Phone: (02) 6276 3777In certain circumstances, disclosures can be made directly to the Commonwealth Ombudsman. Please refer to the Commonwealth Ombudsman’s website for more details .au Note: A potential discloser should not investigate a matter themselves before making a disclosure.What should a disclosure include? Information contained in the disclosure should: be clear and factualso far as possible, avoid speculation, personal attacks and emotive languagewhere possible, provide supporting evidence if availablewhere possible, identify any witnesses to the disclosable conduct. There is no required format for the making of a disclosure. A disclosure can be made: anonymously or openly; verbally or in writing; A discloser can make a PID without stating that the disclosure is made under the PID Act. A supervisor, manager or Authorised Officer may use their best judgement to determine whether the information is potentially a PID.Circumstances giving rise to protections A person who knowingly makes a false or misleading disclosure will not receive protections under the PID Act. A person who is considering making a disclosure should be aware that making a disclosure does not entitle them to protection from the consequences of their own wrongdoing. Anonymous disclosures Public officials can make anonymous disclosures if they wish. A disclosure is considered anonymous if: the identity of the discloser is not revealed and no contact details for the discloser are providedthe discloser does not disclose their name but does provide anonymous contact details However, if a disclosure is made anonymously and no contact details are provided, it may prevent investigation, or further investigation of a disclosure. There are reasons why disclosers should consider identifying themselves to an Authorised Officer, or Principal Officer (investigator) at the very least providing a means of contact: the PID Act requires an agency to keep a discloser’s identity confidential, subject to limited exceptions including the discloser’s consent. The person’s identity may nonetheless become apparent if an investigation is commenced.it is more difficult to ensure protection from reprisal if the agency does not know the discloser’s identity. the Authorised Officer who receives an anonymous report must have reasonable grounds to suspect the disclosable conduct has occurred in order to allocate the matter for investigation. If the Authorised Officer cannot contact the discloser to seek necessary further information, the matter may not proceed. an investigator has the discretion not to investigate, or investigate further, if it is impracticable to investigate because the discloser has not provided their name and contact details or is unable to give the Investigators further information or assistance if needed.a discloser who does not provide a means of contact cannot be updated on the progress of the matter, including the outcome of an investigation. A person who has made an anonymous public interest disclosure may come forward at a later stage to disclose their identity and seek the protections of the PID Act. What happens after you make a disclosure? Once a public interest disclosure has been made, it cannot be withdrawn. But a discloser may advise that they do not wish the disclosure to be investigated and they may refuse to consent to their name and contact details being provided to the Principal Officer or Authorised Officer. A person who has made a disclosure under the PID Act should not discuss the details of their disclosure with anyone who does not have a need to know about it. Discussions with these people will not be protected by the PID Act. Further information is in Appendix 1: Making a public interest disclosure. Procedures for supervisors and managersSupervisors and managers need to know how to recognise a public interest disclosure and what to do with it when they receive one. Gather and record the informationBefore referring a disclosure to an Authorised Officer, the supervisor or manager must record:The date the disclosure was madeDoes the disclosure give consent to release their name to the Authorised Officer?If the disclosure was made verbally, a written record must be made of the disclosure. Where possible the discloser should confirm the written recordThe date the disclosure was forward to an Authorised OfficerThe name of the Authorised OfficerOnce the PID has been referred to an Authorised Officer:inform the discloser the matter has been referred (and to whom) inform the discloser of the date the matter was referredif the discloser has not consented to their identity being used for the purposes of the PID Act, the supervisor or manager needs to monitor the work environment to ensure the discloser’s identity is protected. A checklist for supervisors and managers is available in Appendix 2 that can be used to record and send these details to the Authorised Officer.Supervisor and manager obligationsSupervisors and managers have a legal obligation to pass on any disclosure made to them to an Authorised Officer as soon as practicable. It is not the role of the supervisor or manager to determine whether a matter is considered under the PID Act. This is the role of the Authorised Officer. It is important to note that a discloser does not need to use the words ‘ public interest disclosure’, ‘disclosure’, ‘PID’ or ‘whistleblowing’ in order to report matters of wrongdoing under the PID Act. If in any doubt whether a PID has been made, make contact with an Authorised Officer or contact the PIDadvice@.au mailbox.A list of Authorised Officers is available on the DTA intranet.Procedures for Authorised OfficersAuthorised Officers have specific responsibilities in relation to advising disclosers and potential disclosers about the PID Act. Step 1: Does the disclosure meet the requirements for a PIDIt is the Authorised Officer’s role to determine whether the report of wrongdoing meets the requirements to be considered a public interest disclosure in accordance with the PID Act. Table 1: Requirements of making a PIDAn Authorised Officer must be satisfied each of the four categories are met before considering whether to allocate or not allocate a disclosure (Step 2). These are also outlined in Table 1: Requirements of making a PID:Is the discloser a public official (current or former)An Authorised Officer may deem a discloser a public official for the purposes of the PID Act, if they determine the matter reported is in the public interest. This must be included in the PID record (s70 of PID Act)Does the matter concerns another public official or agency?Does the matter concern disclosable conduct (as outlined in section 1.0: Introduction, and in s29 of the PID Act)Was the matter reported to an authorised person (supervisor, Authorised Officer or Principal Officer)?In making the decision as to whether to allocate or not allocate the disclosure, an Authorised Officer may obtain additional information and make inquiries as they think fit in order to make an allocation decision. Note: It is not an Authorised Officers role to determine how to, or whether the DTA should investigate a matter – only if there are reasonable grounds that the information reported tends to show one or more instances of disclosable conduct.If the Authorised Officer is satisfied:If the Authorised Officer is satisfied the disclosure meets the requirements under the PID Act, the matter will be allocated for further handling and investigation in accordance with the process in this section Step 3: Allocate the disclosure.If the Authorised Officer is not satisfied:If the Authorised Officer is not satisfied the disclosure meets the requirements under the PID Act, the matter will not be allocated for investigation. The Authorised Officer must advise the discloser:is reasonably practicable, the Authorised Officer must advise the discloser in writing that the disclosure is not to be allocated, by advising them ofthe reasons why the disclosure will not be allocated to an agencyany other course of action that might be available to the discloser under other laws of the Commonwealthif the disclosure relates to conduct that may need to be addressed under other DTA policy and procedures.Note: Acknowledgement of receipt of the disclosure, and advice whether the Authorised Officer is satisfied / not satisfied the disclosure meets the requirements of the PID Act, can occur in the same correspondence. Step 2: Gather and record informationDisclosure through a supervisor or managerWhen a matter is made through a supervisor or manager, you should receive the information outlined in section 5.0: Procedures for supervisors and managers Disclosure made directly to the Authorised OfficerWhen a disclosure is made directly to the Authorised Officer, the matters outlined in section 5.0: Procedures for supervisors and managers must also be recorded by the Authorised Officer in addition to other requirements including:The date the disclosure was madeDid the discloser come through a supervisor or managerIf the disclosure was made verbally, a written record must be made of the disclosure. Where possible the discloser should confirm the written recordDoes the disclosure give consent to release their name for the purposes of the PID ActDid the disclosure provide contact detailsDid the disclosure meeting the requirements of the PID ActIf yes, list disclosable conductIf no, list the reasons whyRisk assessment detailsDetails of reporting requirementsAn Authorised Officer checklist is available in Appendix 3 that can be used to record these details and when to seek assistance.Step 3: Allocate the disclosureThe Authorised Officer will use their best endeavours to decide the allocation within 14 days after the disclosure is made.Seek consent Where the Authorised Officer is aware of the contact details of the discloser, they must, as soon as practicable after receiving the disclosure, and before allocating the disclosure, ask the discloser whether he or she consents to the Authorised Officer giving the discloser’s name and contact details to:the Principal Officerthe investigatorthe Commonwealth Ombudsmanother relevant delegates as described in the PID Actor for the purposes of the PID ActIf the Authorised Officer does not receive a response from the discloser within 7 days, the disclosure will be treated as an anonymous disclosure (no consent), noting that the discloser can give consent or remove consent at any time during the PID process.Allocating to another agencyThere may be circumstances where an Authorised Officer of DTA may be required to either allocate a matter to another department or agency or liaise with that department or agency, or the Commonwealth Ombudsman in relation to a disclosure (s47 of PID Act).In deciding the agency or agencies to which a disclosure will be allocated, the Authorised Officer will have regard to:the principle that the agency should only deal with disclosures that relate to the DTA (and not to other departments or agencies)the principle that where reasonably practical an Authorised Officer will support all public officials access the PID Actsuch other matters (if any) as the Authorised Officer considers relevantWhere it is reasonably practical to do so, an Authorised Officer will assist the discloser with the contact details for the PID area of the respective department or agency. The matter should not be directly referred to that department or agency by DTA without either:the discloser’s permission to do soinforming the receiving department or agency prior to making a referralWhere circumstances require an Authorised Officer to make an allocation decision about potential disclosable conduct in another department or agency, the Authorised Officer must not allocate to the department or agency unless the Principal Officer or an Authorised Officer of that other department or agency has consented to the allocation.If the disclosure relates to the Commonwealth Ombudsman or the Inspector General of Intelligence and Security (IGIS), the DTA should not handle the disclosure unless it meets certain criteria outlined in sub-section 43(3)(a)(ii-iv) of the PID Act. These circumstances should be discussed with the Principal Officer and/or People Branch. Further advice can be sought from the Commonwealth Ombudsman’s PID team:Email: PID@.au Phone: (02) 6276 3777Inform and notify allocation decisionDiscloserWhere the contact details of the discloser are known, the Authorised Officer must as soon as practicable, inform the discloser that the report of suspected wrongdoing has been allocated. The Authorised Officer should inform the discloser that the matter has been forwarded to the Principal Officer (investigator) for investigation and where possible the name and contact details of the investigator.Principal OfficerThe PID Act requires that the Principal Officer is informed of each allocation decision including the identity of the discloser where consent has been monwealth OmbudsmanThe Authorised Officer must formally notify the Commonwealth Ombudsman in writing of the allocation.Step 4: Risk assessmentPrior to referring the disclosure to the Principal Officer (investigator) for investigation, the Authorised Officer must conduct a risk assessment.Risk MatrixIn assessing the risk of potential reprisal action, the Authorised Officer should use the following risk matrix:Likely seriousness of reprisalLikelihood of reprisal being taken against a discloserMinorModerateMajorExtremeAlmost certainMedium HighHighHighLikelyMediumMedium HighHighUnlikely LowLowMediumMedium Highly unlikelyLow LowLowMediumExamples of seriousness of reprisalsMinor: Occasional or one-off action that is likely to have a relatively minor adverse effect on the person (for example, occasional exclusion of the person from a social activity).Moderate: Repeated action which is likely to have an adverse effect on the person (for example, routinely failing to "CC" the person on work-related emails).Major: Sustained or one-off action which has a significant impact on the person (for example, consistently excluding the person from team discussions or imposing a negative performance assessment on the person).Extreme: Action which is likely to have a very severe impact on the person (for example, physical violence or the denial of a promotion opportunity).Criteria for assessing likelihood of potential reprisalsWhen considering the likelihood of a reprisal being taken against a discloser, the Authorised Officer should take into account all relevant factors, including:the likelihood of the discloser being identified, which may involve consideration of: the size of the work area in which the discloser is locatedthe number of people who are aware of the information leading to the disclosure the number of people implicated in disclosure the subject matter of the disclosurethe number of people who are aware of the disclosure or are likely to become aware of the disclosure (for example, through participation in the investigation as witnesses) the culture of the workplace whether any specific threats against the discloser have been receivedwhether there are circumstances that will make it difficult for the discloser not to discuss the disclosure in the workplace whether there are allegations about individuals in the disclosurewhether there is a history of conflict between the discloser and the subject of the disclosurewhether the disclosure can be investigated while maintaining confidentiality.Criteria for assessing likely seriousness of potential reprisalsIn considering the likely seriousness of any potential reprisal against a discloser, the Authorised Officer should take into account all relevant factors, including:the significance of the issue being disclosed the likely outcome if the conduct disclosed is substantiatedthe subject matter of the disclosurewhether the discloser is isolatedwhether the discloser is employed on a full-time, part-time or casual basiswhether the alleged wrongdoing that is the subject of the disclosure was directed at the discloserthe relative positions of the discloser and the person whose alleged wrongdoing is the subject of the disclosure.When conducting the risk assessment, the Authorised Officer may ask the discloser why they are reporting the wrongdoing and who they might fear a reprisal from, and may also speak to the discloser's supervisor or manager confidentially.Risk mitigation strategyWhere the risk level is assessed as anything greater than low (indicated in yellow in the risk matrix) the DTA will develop a strategy to mitigate the risk of reprisals being taken against the discloser. This strategy may include some or all of the support measures set out in Step 4.Monitor and review risksThe risk of reprisal must be monitored throughout the PID process and the risk mitigation strategy updated as required.If an Authorised Officer receives a report of reprisal against a discloser, they will:take all steps possible to stop that alleged reprisal and protect the disclosertake action to investigate the suspected reprisalestablish whether reprisal has occurredif reprisal is found to have occurred, arrange for the matter to be dealt with in an appropriate manner.Support for disclosers and other named partiesThe DTA will take reasonable steps to protect public officials who have made a PID from detriment or threats of detriment relating to the PID as outlined in section 2.0: Support, protection and reprisals.Further information can be found in Appendix 4: Indicators of high risk of reprisals and Appendix 5: Examples of identified risks.Procedures for investigator (delegate of the Principal Officer)The Principal Officer or their delegate (investigator), has an obligation to investigate all PIDs allocated to the DTA whether from within or outside of the agency (s47 of PID Act).Step 1: Provide initial information to discloserAs soon as practicable after receiving the notice of allocation from an Authorised Officer the PID investigator will provide the discloser with the following information about their role and powers under the PID Act which are:decide not to investigate the disclosuredecide not to investigate the disclosure furtherdecide to investigate the disclosure under a separate investigative powerStep 2: Consider whether to investigate the disclosureThe investigator must, as soon as practicable consider whether to exercise the discretion under s48 of the PID Act not to investigate the disclosure. The investigator may also decide not to investigate the matter further (if an investigation has already begun):the discloser is not a current or former public official (and a determination has not been made under section 70 of the PID Act – see section 6 – Procedures for Authorised Officers)the information does not to any extent concern serious disclosable conductthe disclosure is frivolous or vexatiousthe disclosure is substantially the same as a disclosure that has been investigated under the PID Actthe disclosure is substantially the same as a disclosure that has already been investigated, or is currently being investigated, under another law of the Commonwealth, andit would be inappropriate to conduct another investigation at the same timethe relevant delegate under the PID Act is reasonably satisfied that there are no matters that warrant further investigationthe discloser has informed a delegate under the PID Act that they do not wish the disclosure to be pursued and a delegate is reasonably satisfied that there are no further matters concerning the disclosure that warrant investigationit is impracticable to investigate the disclosure because:the discloser has not revealed their name and contact detailsthe discloser has refused or has failed or is unable to give the Investigators the information they requestedof the age of the information.Guidance on the factors that might go towards exercising the power in section 48 of the PID Act is provided in the Ombudsman’s ‘Agency Guide to the Public Interest Disclosure Act 2013’. Step 3: Notify the discloser and OmbudsmanIf the disclosure will not be investigatedIf the Principal Officer decides not to investigate a disclosure they will:if reasonably practicable to contact the discloser, inform the discloser they have decided not to investigate the disclosure, identifying: the reasons for the decision not to investigate (other than those reasons that would be exempt for the purposes of Part IV of the Freedom of Information Act 1982, have or be required to have a national security or other protective security classification or contain intelligence information)any courses of action that might be available to the discloser under other laws of the Commonwealth inform the Ombudsman of the decision not to investigate and the reasons for that decision.If the disclosure will be investigatedIf investigator decides to investigate the disclosure, they will where possible, inform the discloser: that the disclosure will be investigatedof the estimated length of the investigation (up to 90 days).Note: The correspondence to the discloser outlined in steps 1, 2 and 3 can occur at the same time. Step 4: Investigate the matterIf the investigator decides to investigate, they will investigate whether there are one or more instances of disclosable conduct.General principlesThe following general principles will apply to the conduct of investigations:maintaining the confidentiality of the identity of the discloser will be paramount when conducting the investigationthe investigation will be carried out with as little formality as proper consideration of the matter allowsthe investigation will be conducted in accordance with the principles of procedural fairnessa person who is the subject of the investigation will have an opportunity to respond or provide informationin the event that an interview is to be conducted, it will be conducted in a manner consistent with the Public Interest Disclosure Standard 2013 (or any other relevant standard made under the PID Act)a decision on whether evidence is sufficient to prove a fact will be determined on the balance of probabilities.Aside from compliance with these principles, the investigator is free to conduct the investigation as they see fit. The way in which the investigation is conducted may vary depending on the alleged conduct which is being investigated. Where the investigator considers that the nature of the disclosure is such that the outcome of the investigation is likely to be referral of the matter for investigation under another process or procedure, the investigation will be conducted in accordance with those other established processes or procedures.Additional procedures required in particular circumstancesIn conducting an investigation the investigator must also comply with:the Public Interest Disclosure Standard 2013 or any other standard issued under s74 of the PID Act to the extent they are relevant to the investigationthe Commonwealth Fraud Control Guidelinesthese proceduresthe procedures established under s15(3) of the Public Service Act 1999 (relating to the APS Code of Conduct)any other relevant DTA policy or procedure.If the investigator considers that information disclosed in the course of a PID may be appropriately dealt with under another procedure or policy of DTA, they may recommend in the investigation report that this occur and refer the matter to the relevant person for action.Obtaining informationInstances of disclosable conduct may relate to information that is disclosed or information obtained, in the course of the investigation rather than information provided in the initial disclosure.During the investigation, the investigator may, for the purposes of the investigation, obtain information from such persons and make such inquiries as they see fit.InterviewWhen being interviewed as part of an investigation, an interviewee will be informed of the following:the identity and function of each individual conducting the interviewthe process of conducting an investigationthe authority of the Principal Officer or delegate (investigator) under the PID Act to conduct the investigationthe protections provided to witnesses under s57 of the PID Actthe person’s dutyif they are a public official – to use their best endeavours to assist the Investigators in the conduct of an investigation under the PID Act (subject to the public official’s privilege against incriminating themselves or exposing themselves to a penalty)not to take or threaten to take reprisal action against the disclosersubject to the PID Act, not to disclose the identity of the person who made the disclosure.The investigator will ensure:an audio or visual recording of the interview is not made without the interviewee's knowledgewhen the interview ends, the interviewee is given an opportunity to make a final statement or comment or express a positionany final statement, comment or position by the interviewee is included in the record of the interview.In conducting the investigation, the investigator may adopt findings set out in reports of investigations or inquiries under other Commonwealth laws or executive powers, or other investigations under the PID Act.Referral of information to policeIf, during the course of the investigation, the investigator suspects on reasonable grounds that some of the information disclosed or obtained in the course of the investigation is evidence of the commission of an offence against a law, the investigator may disclose the information to a member of an Australian police force. If the information relates to an offence that is punishable for a period of at least two years, the investigator must disclose the information to a member of an Australian police force.The investigation may also include consideration of whether a different or further investigation should be conducted by the agency or another body under another law of the Commonwealth.Procedural fairnessProcedural fairness does not require that a person, against whom allegations are made, be advised as soon as the disclosure is received or as soon as an investigation is commenced.Procedural fairness does require that the person, against whom allegations are made, is entitled to know the substance of allegations against them if an adverse finding is going to be made about their conduct.Procedural fairness does not equate to a right to know the identity of the discloser who has alleged that the person has committed wrongdoing. However, the person may be able to guess the discloser’s identity because the substance of the allegations makes it evident.Where the investigator, in preparing the report of their investigation, propose to:make a finding of factexpress an opinion that is adverse to the discloser, to a public official who is the subject of the disclosure or to another person:the investigator must give the person who is the subject of that proposed finding or opinion a copy of the evidence that is relevant to that finding or opinion and must give the person a reasonable opportunity to comment on it.Note: The above paragraph does not apply where the investigation does not make a substantive finding, or express an adverse opinion, but simply recommends or decides that further investigation may be warranted through another process. The investigator must ensure that a finding of fact in a report of an investigation complies with the evidentiary requirements in the Public Interest Disclosure Standard 2013 (or any other standard issued under the PID Act).Step 5: Prepare an investigation reportOnce the investigator has completed their investigation, they will prepare a report of the investigation.The investigator must complete the investigation report with 90 days after receiving the notice of allocation from an Authorised Officer. An extension to this timeframe can only be provided by the Commonwealth Ombudsman in specific circumstances. Further advice can be sought from the Commonwealth Ombudsman’s PID team:Email: PID@.au Phone: (02) 6276 3777Content of reportThe report must set out:the matters considered in the course of the investigationidentify the disclosable conduct being investigatedthe duration of the investigation (commencement and end date)the investigator’s findingsthe action (if any) that has been, is being, or is recommended to be takenWhere relevant, the report must also:include any regulations, rules, administrative requirements or similar matters that related to the disclosable conduct being investigatedexplain the steps taken to gather evidencelist a summary of the evidenceinclude any claim made by the discloser of reprisal action, and the agencies response to those claimsStep 6: Provide report to discloserIf it is reasonably practicable to contact the discloser, the investigator will provide the discloser with a copy of the investigation report within a reasonable time period, after preparing the report. However, the investigator may delete from the copy of the report given to the discloser any material:that is likely to enable the identification of the discloser or another personwould be exempt for the purposes of Part IV of the Freedom of Information Act 1982would require a national security or other protective security clearancecontain intelligence information that contravenes a designated publication restriction as defined in the PID Act.Further information is available on the Commonwealth Ombudsman’s website .au ConfidentialityDisclosures should be assessed and investigated discreetly, with a strong emphasis on maintaining confidentiality of both the discloser and any person who is the subject of the disclosure. It is an offence for a person who has information obtained in the course of conducting a disclosure investigation, or in connection with their powers and functions under the PID Act, to disclose or use this information.Any email correspondence between supervisors or managers, Authorised Officers and the Principal Officer or delegates should include in the subject line:For Addressee Eyes Only – Public Interest Disclosure. This alerts any support staff who may have access to emails that this email is not to be opened.Any interviews conducted by an Authorised Officer or investigators should be conducted in private.Any interviews with the discloser should be arranged so as to avoid the identification of the discloser by other staff of the agency.When seeking further advice from the People Branch or Commonwealth Ombudsman regarding a disclosure, care must be taken to de-identify the information. When referring to involved parties they should be referred to as the ‘discloser’ and the ‘subject person’.Record KeepingThe Principal Officer is required to keep a record of all PID related enquiries under these procedures. The record may be kept in hard copy or in an electronic form or in both. Access to these records must be restricted to the Authorised Officer, investigator or other employees in the DTA who require access in order to perform some function under the PID Act or for the purposes of another law of the Commonwealth (for example, under the Work Health and Safety Act 2011 or the Public Service Act 1999).Where a form is required to be sent under these procedures, a copy of the form must be kept.All records made for the purposes of the PID Act in accordance with these procedures must be marked as ‘Sensitive’ and hard copies stored in the appropriate storage container (see agency security guidelines).Any email messages sent by supervisors or managers, Authorised Officers investigators that contain identifying information must be clearly marked:For Addressee Eyes Only – Public Interest DisclosureOnce the supervisor or manager, Authorised Officer, or investigator has completed their roles under the PID Act, all correspondence must be forwarded to the People Branch. The People Branch are responsible to keep the one formal record of the PID disclosures, regardless of whether the reported matter was allocated or not allocated within the DTA. All other parties must delete all records from their emails and personal electronic and hardcopy files.AppendixAppendix 1: What is a public interest disclosure? Appendix 2: Supervisor or manager checklist Appendix 3: Authorised Officer checklistAppendix 4: Indicators of high risk of reprisalAppendix 5: Examples of identified risksAppendix 6: Internal disclosure flowchartAppendix 1: What is a public interest disclosure?(Source: page 2, ‘Speaking up about wrongdoing’ – Author: Commonwealth OmbudsmanAppendix 2: Supervisor or manager checklistPID check list for Supervisor / ManagerSupervisor or manager name:Date of disclosure: _________/_________/__________Does the discloser give consent to release their name to the Authorised Officer (tick box)?□Yes □NoIf Yes provide the Authorised Officer with the discloser’sName _____________________________________Contact (email and/or phone)____________________If No inform the Authorised Officer that you do not have consent to forward the discloser’s identity. You have a legal obligation to keep the discloser’s identity confidential (see section 8 on confidentiality)Was the disclosure received in writing (tick box)?□Yes □NoIf Yes forward in full to an Authorised Officer. Remember you may need to redact identifying information if the discloser wishes to remain anonymous.If No and the disclosure was made verbally, make a written record of the facts of the disclosure. Seek confirmation from the discloser where available.Date the disclosure was referred to an Authorised Officer: __________/___________/___________(Mark the email: confidential – to be opened by Authorised Officer only)Name of the Authorised Officer _______________________________________________ (if referred to the PIDadvice@.au mailbox, use that as the name of the Authorised Officer)Date the discloser was informed of the referral: ___________/__________/____________This checklist should be forwarded to the authorised offer cc: PIDadvice@.au Please note: only People Branch are to keep a record of all public interest disclosure correspondence. Once referral has been confirmed with the Authorised Officer or PIDadvice@.au has been received – you are directed to delete all records relating to this disclosureAppendix 3: Authorised Officer checklistPID check list for Authorised OfficersAuthorised Officer name:Date of disclosure: _________/_________/__________Did the disclosure come through a supervisor manager?□Yes □NoWas the disclosure received in writing (tick box)?□Yes □NoIf Yes record on file - remember you may need to redact identifying information if the discloser wishes to remain anonymous.If No and the disclosure was made verbally, make a written record of the facts of the disclosure. Seek confirmation from the discloser where available.Does the discloser give consent to use their name and/or contact details for the purposes of the PID Act (tick box)?□Yes □NoIf Yes provide record the discloser’sName _____________________________________Contact (email and/or phone)____________________If No (you do not have consent disclose the discloser’s identity), you are to record the disclosure as anonymous. You have a legal obligation to keep the discloser’s identity confidential (see section 8 on confidentiality)Has the discloser met the requirements of the PID Act (tick box):□Yes □NoIf Yes specify the potential disclosable conduct identified: example maladministration______________________________________If No state reason(s): example was not a public official ______________________________________Forward checklist to PIDadvice@.au for assistance in completing risk assessment and reporting requirementsRisk assessment result (tick box):□Low □ Medium □HighRisk mitigation strategy developed (tick box)□Yes □No(must be developed with a rating higher than Low)Date of the allocation decision __________/___________/___________Date the discloser was informed of the allocation decision ___________/__________/____________Date the Principal Officer was informed of the allocation decision ___________/__________/____________Date the Commonwealth Ombudsman was notified of allocation ___________/__________/____________ (if applicable – notice is not required for matters that were not allocated)Please note: only People Branch are to keep a record of all public interest disclosure correspondence. Once you have made your allocation decision, and all correspondence and reporting has ended you are directed to delete all records relating to this disclosureAppendix 4: Indicators of higher risk of reprisal (Source: page 70, Agency guide to the PID Act – Author: Commonwealth Ombudsman)Appendix 5: Examples of identified risks(Source: page 71, Agency guide to the PID Act – Author: Commonwealth Ombudsman)Appendix 6: Internal disclosure flowchart (Source: page 10, ‘Speaking up about wrongdoing’ – Author: Commonwealth Ombudsman) ................
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