6. Investigative process
Last updated: 09 Jun 2015
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6.1 Selecting a decision-maker
6.1.1 Once it has been decided to start action under the agency's s15(3) procedures, the next step is to select the decision-maker who will determine whether there has been a breach of the Code of Conduct (the Code). An agency's s15(3) procedures may identify the classification/position of persons with authority to appoint the breach decision-maker and, if so, the breach decision-maker must be selected in accordance with the procedures. It is advisable for the breach decision-maker's appointment to be in writing.
6.1.2 The breach decision-maker is preferably someone relatively senior in the agency who is familiar with the agency's business and has good judgement.
6.1.3 The breach decision-maker may conduct the investigation themselves or use an investigator. Where the breach decision-maker is expected to manage their normal workload during the investigation, it may expedite the process to appoint a separate person to conduct the investigation. An investigator must be appointed in accordance with the agency's s15(3) procedures if the procedures have provisions for appointing an investigator. Where the procedures do not have such provisions, the investigator is selected outside the procedures as a person assisting the decision-maker.
6.1.4 The role of the investigator is to gather evidence, including interviewing witnesses, and to communicate with the person under investigation and witnesses. Subject to an agency's section 15(3) procedures, the investigator may provide the decision-maker with their own opinions about the facts of the case, and prepare a report with recommendations. However, the breach decision-maker needs to form an independent view of the evidence and is responsible for both making findings of fact and any determination of breach of the Code of Conduct which flows logically from those findings.
6.1.5 The respective roles and responsibilities of the investigator, decision-maker(s), and where relevant any human resources case manager, should be made clear in agency guidance material. Appendices 8-10 of this guide on Employee suspension checklist, Making a decision about a breach of the Australian Public Service Code of Conduct checklist, and Sanction decision-making checklist may be useful when developing agency guidance. Appendix 6 of this guide on Australian Public Service Code of Conduct: Tips and traps in selecting external investigators is also relevant.
Independent and unbiased decision-maker
6.1.6 The person who appoints the breach decision-maker needs to take reasonable steps to ensure that the decision-maker is, and appears to be, independent and unbiased. Administrative law requires that a decision-maker be free from actual bias or any reasonable apprehension of bias. The test for reasonable apprehension of bias is whether a hypothetical fair-minded person, properly informed of relevant circumstances, might reasonably apprehend that the decision-maker might not have brought an impartial mind to the decision.32
6.1.7 Examples of where bias could, or could be thought to, arise are as follows:
- The decision-maker has a personal interest in the decision including for example a personal relationship or a close working relationship with the person suspected of misconduct, a complainant or witnesses.
- The decision-maker has previously expressed a concluded view on a matter that needs to be determined.
- The decision-maker has had access to prejudicial information, not relevant to the matters to be determined, but which could reasonably be seen as influencing the decision-maker's views.
- A senior manager makes comment on the case in a manner which could be perceived to influence the more junior decision-maker.
- The decision-maker is a witness in the matter.
6.1.8 Care needs to be taken if a breach decision-maker has previously investigated the matter, or a related matter, in another capacity. Consideration should be given to the nature of the previous involvement and the matters they were asked to consider. If there is any doubt about the suitability of a decision-maker, it would be prudent to make another choice. It may be appropriate for a person from outside the agency or the APS to be selected, if it is not possible to find a decision-maker 'free from apparent bias' within the agency.
6.1.9 It is recommended that the breach decision-maker not be informed that the person suspected of misconduct has previous findings of breaches of the Code, if that is the case. This allows the breach decision-maker to decide whether or not there has been misconduct solely on the evidence relating to the matter under investigation. Prior misconduct will be relevant if there is a decision to impose a sanction. See Part II, Section 7 The determination and sanctionof this guide.
6.2 Selecting an investigator
6.2.1 Agencies may find it useful to maintain a pool of employees who have experience or training in conducting workplace and misconduct investigations, and are familiar with administrative law principles.
6.2.2 Agencies may for a variety of reasons wish to engage an external person to conduct a misconduct investigation. Information on engaging an external investigator is in Appendix 6 Australian Public Service Code of Conduct: Tips and traps in selecting external investigators. The information in the appendix is relevant both to the engagement of contractors and the secondment of an APS employee from another agency to assist with an investigation.
6.2.3 Some cases of suspected misconduct are straightforward to investigate. However investigating suspected misconduct can be difficult and requires judgement, attention to detail and investigative skills. The choice of both the breach decision-maker and any investigator are important ones. Investigators and the breach decision-makers involved in more complex cases require training and/or experience in administrative investigations and administrative decision-making, and in the misconduct decision-making process.
Ensuring the quality of the investigation
6.2.4 Where an investigator is selected to assist the breach decision-maker, it is important that the investigator understands their role and the procedures with which the investigation must comply. An investigator plays an important role in ensuring the quality of any determination decision.
6.2.5 The breach decision-maker has ultimate responsibility for ensuring that the decision-making process adheres to administrative law requirements, including procedural fairness, and the agency's procedures. It is important for the breach decision-maker to be satisfied with the approach to, and quality of, the investigation, including:
- the quality and quantity of the evidence and whether or not the evidence establishes the facts on which any finding of misconduct is based
- the way the evidence has been collected
- that the agency's s15(3) procedures have been complied with and other legal requirements met, including procedural fairness.
6.3 Investigations of suspected fraud or other criminal behaviour
6.3.1 Where the matters under investigation include suspected criminal behaviour, agencies will need to consider referral to the Australian Federal Police (AFP) or other police forces as set out in Part II, Section 3.7 Suspected misconduct that may also be a criminal act of this guide
6.3.2 In cases of suspected fraud and other criminal behaviour, the person conducting the investigation must follow the agency's fraud control policy and procedures. These policy and procedures must be consistent with the Public Governance, Performance and Accountability Act 2013(PGPA Act) and the Commonwealth's Fraud Control Framework. The Department of the Attorney-General administers the Commonwealth's Fraud Control Framework which includes the Commonwealth Fraud Control Policy.33 The Commonwealth Fraud Control Policy supports agencies to discharge their responsibilities under the PGPA Actand the Fraud Control Rule made under that Act. Further information about the fraud control framework, including links to the legislation, is available on the Department of the Attorney-General's website.34
6.3.3 Consistent with the Commonwealth Fraud Control Policy, agency fraud investigations must meet the requirements set out in the Australian Government Investigation Standards (AGIS) which are administered by the Australian Federal Police. This includes competency standards for persons undertaking fraud investigations. 35
6.4 Advising that misconduct proceedings have started
6.4.1 Once the decision to start misconduct action has been taken, and the breach
decision-maker has been selected, the person suspected of misconduct should be advised at the earliest reasonable time of the decision to investigate, and of the person or persons selected to investigate and make the breach decision.
6.5 Deciding on the scope of the investigation
6.5.1 The scope of the investigation is determined by the preliminary judgements made about the allegations about the person's behaviour, whether or not all allegations need to be investigated and, if proven, which elements of the Code may have been breached.
6.5.2 The seriousness of the allegations, whether there is a reasonable possibility of identifying evidence that might prove or disprove the allegations, and the cost of gathering particular forms of evidence are some of the considerations in determining the scope of the investigation.
6.5.3 Agencies may provide general guidance to the breach decision-maker on which element(s) of the Code the person subject to misconduct action is suspected of breaching. However, the breach decision-maker needs to establish independently whether specific elements of the Code have been breached when making their decision.
6.5.4 There are two main approaches when considering which part of the Code to put to the person subject to misconduct action.
- A breach decision-maker may opt for multiple sections of the Code, depending upon the suspected misconduct, so that any final determination is more exhaustive.
- A decision-maker may choose one or two sections of the Code that are most relevant to the suspected misconduct.
6.5.5 It is advisable that the breach decision-maker is flexible at the start of the process about the approach. For example, if the suspected misconduct, if proven, is likely to lead to termination of employment, then selecting a larger but relevant number of elements may assist in defending an unfair dismissal application, should the Fair Work Commission not uphold some breaches of elements of the Code.
6.5.6 As the investigation progresses, the investigator or decision-maker may discover additional allegations and/or consider that the behaviours under investigation suggest additional elements of the Code may have been breached. In this circumstance, the person under investigation should be advised of the additional allegations and additional elements of the Code and be given a further opportunity to comment. This is consistent with the requirements in agency s15(3) procedures and the requirements of procedural fairness. Further information on procedural fairness requirements is provided in Part II, Section 6.10 Procedural requirementsof this guide.
6.6 Notifying the person under investigation of the misconduct action
6.6.1 Clause 6.3 of the Australian Public Service Commissioner's Directions 2013 (the Directions) requires that a person suspected of misconduct be informed of certain matters before a determination is made. Many agencies do this in the form of a written 'notice of suspected misconduct'.
6.6.2 Any notice to the person suspected of misconduct must be consistent with the requirements in the agency's s15(3) procedures, which in turn must be consistent with clause 6.3 of the Directions. Generally such a notice will explain:
- the behaviour the person is suspected of engaging in
- the element(s) of the Code they are suspected of breaching
- the full range of sanctions that may apply
- who will be investigating the suspected misconduct—if different from the decision-maker
- the decision-maker who will make the determination.
6.6.3 It is appropriate to attach to the notice advice about how the misconduct investigation process will proceed, a copy of the agency's s15(3) procedures and any relevant guidance material.
6.6.4 Consistent with the requirements of the Privacy Act 1988, consideration could be given to including a privacy collection notice in the notice of suspected misconduct. The purpose of the privacy collection notice is to advise the person under investigation that their personal information is being collected, the uses to which it will be put and the circumstances in which it will be disclosed. For further information see Part I, Section 2.3 Managing misconduct action consistent with privacy requirements of this guide.
6.6.5 The notice of suspected misconduct could be signed, physically or electronically, by the person who has authorised the misconduct action or the decision-maker or investigator, in accordance with the agency's s15(3) procedures, guidance or policies. A copy of this notice should be retained on the misconduct file.
6.6.6 It may not always be possible to give the person suspected of misconduct complete details of the suspected breach at the outset of an investigation. In such cases, it is appropriate to inform the person in writing that an investigation has started and to outline the allegations as they are known at the time. The person should be advised that they will be given further detail about the allegations as the investigation progresses and an opportunity to make a statement in relation to the allegations and evidence, once the evidence has been gathered and before any determination is made.
Variations to the notice
6.6.7 During the course of an investigation, an investigator or decision-maker may:
- identify additional allegations
- identify additional evidence
- consider that the alleged behaviour might be more appropriately considered against an additional, or different, element of the Code.
6.6.8 Any changes or new information of this sort should be notified to the person under investigation, consistent with the agency's s15(3) procedures. The decision-maker must give the person a reasonable opportunity to respond to this new information, consistent with the agency's s15(3) procedures, before making a determination.
6.7 Other administrative arrangements
6.7.1 Agencies may also advise persons suspected of misconduct of the support available to them. In the case of current employees, the employee's manager may be able to provide support. Current employees may also seek support from the agency's employee assistance program. Both former and current employees may seek advice from the Australian Public Service Commission's Ethics Advisory Service. Generally, employees or former employees are not entitled to assistance in meeting legal expenses incurred in relation to misconduct action. Paragraph 2A of Appendix E to the Legal Services Directions 2005 refers.
6.7.2 Other matters that an agency may need to consider are:
- how to manage the impact of the investigation on the workplace and colleagues of the employee under investigation
- whether the allegations point to business process or systemic risks that need addressing by the agency, for example improved financial control measures
- what action, if any, needs to be taken to protect the privacy of the employee under investigation and any witnesses, and the integrity and independence of the misconduct process, for example where the matters under investigation have been the subject of media comment or gossip in the workplace.
6.8 Investigating whether misconduct has occurred
Making arrangements to support the decision-making process
6.8.1 The outcome of misconduct action is heavily dependent on the quality of the investigation. Mistakes made in the investigation can lead to an unfair outcome and/or decisions being overturned on review. The person who undertakes the investigation, who may also be the breach decision-maker, needs to have the skills and resources to do the task effectively.
6.8.2 It may be necessary for an internal investigator, and/or decision-maker, to be released from some or all of their normal duties while they conduct the investigation to ensure a quality and timely process.
6.8.3 Agencies may also need to consider special accommodation arrangements, such as the provision of an office or a secure cabinet for storage of sensitive material. Investigators may also need access to agency or other experts to assist them in interpreting evidence or dealing with legal questions.
Formality and timeliness
6.8.4 The Directions stipulate that the process for determining whether an APS employee, or former employee, has breached the Code must be carried out with as little formality and as much expedition as a proper consideration of the matter allows. This means that the investigation needs to be conducted efficiently and effectively.
6.8.5 Ensuring timeliness is important for a number of reasons. Delays can affect the availability of reliable evidence, and the capacity of the person under investigation to respond fully to the case against them. For these reasons, among others, delays in investigations can reduce the possibility of reaching a concluded view on whether or not the person did what was alleged they had done. Unreasonable or extended delays in the investigation process, because of their effect on the person under investigation, can be a mitigating factor when deciding sanction. They are also factors that are likely to be considered by external review bodies.
6.8.6 While the process should be expeditious, this should not be at the expense of a properly conducted decision-making process consistent with agency s15(3) procedures, the requirements of procedural fairness or other administrative law principles.
Planning the investigation
6.8.7 It is good practice to develop an investigation plan which might consider the following issues:
- Who/what is being investigated?
- What needs to be found out in order to be able to make a supported and reasonable determination of whether there has been a breach?
- What evidence needs to be gathered and assessed in order to make findings and what are the potential difficulties in obtaining that evidence, if any?
- Who needs to be interviewed?
- How will the issue of confidentiality be handled in relation to the identity of the employee who reported the suspected misconduct or witnesses? This is particularly important if the allegation was made as a disclosure under the Public Interest Disclosure Act 2013.
- What are the privacy issues raised by this matter and what steps need to be taken to meet the agency's obligations under the Privacy Act 1988?
- Developing a timeline for the investigation.
- Whether legal advice is needed in a complex case.
Gathering the evidence
6.8.8 Evidence can be collected from various sources. For example in cases involving suspected improper access to personal information or improper use of email or internet, the investigation is likely to be founded on objective, physical evidence including records of computer use by the person suspected of misconduct.
6.8.9 Investigators are often required to interview the person suspected of misconduct and witnesses. It is important that the person suspected of misconduct understands the purpose of an interview. The purpose is usually to gather and test evidence to assist in establishing factual matters. An interview is not usually the primary means by which the person under investigation responds to the allegations. It is recommended that the interviewer explains the purpose of the interview, and where appropriate advises the person under investigation that they will be given other opportunities to respond to the case against them, before a decision is made.
6.8.10 An employee is generally bound to answer fair and reasonable questions relating to their activities as an employee. However, an employee suspected of misconduct cannot lawfully be directed to answer questions where this would tend to incriminate them in relation to a criminal offence or expose then to a finding of breach, including a possible sanction for that breach. There is a common law privilege against self-incrimination and a privilege against self-exposure to penalty. A refusal to respond to allegations of misconduct cannot be assumed to be evidence that the alleged misconduct occurred. A former employee is not obliged to participate in a Code investigation. However, it may be in their interests to do so.
6.8.11 An interviewer may wish to consider the following good practice:
- providing the interviewee with sufficient notice to allow for adequate preparation
- where appropriate advising the interviewee that they may be accompanied by another person to provide support. It would be good practice to specify that the support person cannot speak on the interviewee's behalf
- considering whether it would be appropriate to make available to the interviewee, before the interview, any documents that will be discussed at the interview
- preparing a set of questions and, if necessary having them quality assured, to avoid vague or 'leading' questions i.e. questions that might be hard to respond to or that might influence how responses are given
- advising interviewees that personal information relating to them, or any other person, and any evidence they provide, may be disclosed to the others, including the person suspected of misconduct, where necessary and appropriate
- wherever possible seek corroborating evidence from the interviewee(s) of any claims they make
- indicating that a record of the discussion will be prepared and will be provided to the interviewee. The objective is to have jointly agreed records of interviews. If this cannot be achieved it is good practice to document the area(s) of disagreement
- advising the interviewee of the arrangements for confirming the accuracy of the record of the interview, recording any disagreements, and setting a timeframe for the interviewee to respond
- deciding before the interview whether it is to be audio-recorded. In this case it is usually appropriate to make a copy of the recording available to the interviewee. Where a written record of interview is to be prepared, it may be convenient to use a note-taker.
6.8.12 In addition to conducting an interview, investigators should consider gathering additional evidence suggested by the person suspected of misconduct, particularly if the person considers that this evidence will corroborate their version of events or otherwise disprove the allegations against them. Such requests should be evaluated in light of the relevance of the evidence and overall fairness of the process.
Privacy issues and third party information
6.8.13 Agencies may receive unsolicited personal information about third parties during a misconduct investigation. This could include information about family members and colleagues in circumstances where the family members and colleagues are not aware that this information has been collected. Agencies may wish to consider whether they have an obligation to notify the third party of the collection of their personal information in accordance with Australian Privacy Principle 5 Notification of the collection of personal information. Where agencies consider that notification would not be appropriate, for example because it would undermine the purpose of collecting the information, it would be appropriate to document that decision.
Advising the person suspected of misconduct of relevant evidence
6.8.14 Subject to the agency's s15(3) procedures, the investigator should:
- Provide the person under investigation with the evidence collected during the investigation and allow them to respond, comment or correct the record. As indicated in Part II, Section 7.2 in Preparing a decision recordof this guide, it may be appropriate to provide a summary of the substance of the existing evidence and witness statements rather than the full documentation.
- Ensure that the employee has a reasonable opportunity to state their case, including any extenuating circumstances.
6.8.15 If new or conflicting evidence comes to light, that is relevant, credible and significant, reasonable steps must be taken to provide the person suspected of misconduct a reasonable opportunity to respond to that evidence before a decision on breach is made.
6.8.16 A proper record must be kept of the investigation material including copies of the evidence that is relied upon in making the decision. For information on record keeping obligations, see Part III, Section 8 of this guide.
Reviewing the evidence
6.8.17 In reviewing the evidence it is advisable to keep the following issues in mind:
- Has the employee suspected of misconduct been given a reasonable opportunity to respond to new or conflicting evidence?
- Have witnesses been questioned about evidence that conflicts with their witness statements?
- Has the response of the person under investigation been genuinely and fairly considered and have lines of inquiry suggested by that person been pursued where it is reasonable to do so?
- Is any evidence missing and is there enough is credible, relevant and significant, i.e. logically probative evidence, to be able to make findings of fact upon which a decision of breach or no breach could be made?
6.8.18 When making a judgement about the reliability of the evidence:
- primary sources of evidence are preferable to secondary sources. For example, hearsay evidence is of less value than a first-hand account.
- test disputed facts or seek corroboration from other witnesses or evidence, where possible
- consider the credibility of the witnesses—inconsistencies in evidence, honesty, possibility of collaboration or improper purpose
- a record of an event made contemporaneously is preferable to a record made days or weeks later.
6.8.19 Logical reasoning and good judgement are important when assessing evidence. Decision-makers may care to have regard to good practice guides prepared by the Administrative Review Council which are available on the Council's website.36
6.9 Investigation report
6.9.1 A good quality investigation report would:
- outline the nature of the suspected misconduct
- set out the steps taken to collect evidence and information
- outline the factual matters that need to be established to determine whether the employee under investigation did what was alleged. In order to do this the investigation report may need to establish a clear chronology of events
- present the evidence in a balanced way, including evidence both for and against the person suspected of misconduct
- acknowledge and consider the response by the person suspected of misconduct to the allegations and that person's response to any new or conflicting evidence that was uncovered in the course of the investigation
- if there is a conflict in the evidence, explain why one set of evidence is preferred over another
- outline the conclusions that are able to be made on the available evidence which need to flow logically from the evidence
- include reasons why the action or behaviour that is found on the evidence could be determined to be a breach of the element or elements of the Code.
6.10 Procedural requirements
6.10.1 Misconduct investigations and decision-making must comply with an agency's s15(3) procedures. Investigations must also be conducted according to other law, including the requirements of procedural fairness and other administrative law.
6.10.2 Generally, administrative decisions, such as those taken in the misconduct process, must have regard to procedural fairness. Procedural fairness requires that:
- a decision-maker be impartial and be free of actual or apparent bias (the bias rule)
- a person whose interests will be affected by a proposed decision receives a fair hearing, including the opportunity to respond to any adverse material that could influence the decision (the hearing rule)
- findings are based on evidence that is relevant and logically capable of supporting the findings (the evidence rule).37
6.10.3 The right to procedural fairness arises only in relation to those people for whom the decision might adversely affect a right or interest. Usually this will be confined to the employee suspected of misconduct rather than, for example, witnesses or complainants.
Procedural requirements in the misconduct investigation
6.10.4 The agency s15(3) procedures will set out the procedural requirements for determining suspected misconduct. This may vary between agencies. The following are the minimum requirements in determining a breach of the Code:
- Consistent with clause 6.3 of the Directions, the person suspected of misconduct must be informed of the details of the suspected breach. This means that they need to be informed of what it is that they were alleged to have done and what elements of the Code they are suspected of breaching.
- This requirement is also consistent with 'the hearing rule' of procedural fairness.
- Consistent with clause 6.3 of the Directions, the person suspected of misconduct must be informed of the sanctions that may be imposed.
- Consistent with clause 6.3 of the Directions, the person suspected of misconduct must be given a reasonable opportunity to make a statement in relation to the suspected breach.
- This requirement is consistent with 'the hearing rule' of procedural fairness.
- The person suspected of misconduct must be given a reasonable opportunity to respond to the evidence gathered during the investigation, including responding to any adverse material, before a decision is made.
- Agency s15(3) procedures may require this but it is also consistent with 'the hearing rule' of procedural fairness.
- The breach decision-maker must give proper consideration to the person's statement and response to the evidence before making the determination.
- This is consistent with 'the hearing rule' of procedural fairness.
- If during the investigation new evidence comes to light about the person's actions or behaviours, reasonable steps must be taken to notify the person suspected of misconduct of this evidence, in compliance with agency s15(3) procedures and given an opportunity to respond before a determination is made
- This could include information suggesting possible additional breaches of the Code or that the allegations are more serious than originally thought.
- Agency s15(3) procedures must advise the person under investigation of any variation in the suspected breaches, in compliance with clause 6.3 of the Directions.
- This requirement is consistent with 'the hearing rule' of procedural fairness.
- The decision-maker must act without bias or an appearance of bias i.e. the 'bias rule' of procedural fairness. This includes having an open mind about the matters under investigation and weighing the evidence fairly and dispassionately.
- There must be facts or information that logically supports any favourable or adverse findings, i.e. the 'evidence rule' of procedural fairness. For this reason, it is good practice for decision-makers to document reasons for their decision.
6.10.5 The hearing rule does not require providing all investigation material relevant to the allegation(s), but the person under investigation must be given sufficient details of the case against them to be able to respond properly. In some circumstances this will require providing all the evidence considered credible, relevant and significant to the investigation. In other circumstances it will be sufficient to summarise the evidence under consideration.
6.10.6 Credible, relevant and significant material may include adverse material that the decision-maker does not propose to rely on in making a particular finding or the decision on breach. Depending on the circumstances it may be necessary for the person under investigation to be given an opportunity to comment on this.
6.10.7 The breach decision-maker may advise the person under investigation of their preliminary views about the alleged breach and give them an opportunity to respond. This might be in the form of a draft decision or report. It is not usually necessary to do this unless it is a requirement of an agency's s15(3) procedures. However, in some cases, it may be a sensible precaution to mitigate concerns that the person has not been given a fair hearing.
6.10.8 Procedural fairness does not always require that adverse material be put in writing. Subject to any requirement in agency s15(3) procedures, it may in some cases be appropriate to put adverse material to the person at an interview.
6.10.9 Additionally, it is not usually necessary to give an extended time period to respond to adverse material. It is common practice to provide for a period of seven days for the person under investigation to respond to the allegations and evidence before making the breach decision. A similar period is usually provided for response to a proposed sanction decision. However, a longer period may be appropriate depending on the complexity of the allegations and the evidence, and the particular circumstances of the person under investigation.
6.10.10 The rules of procedural fairness require that the employee be given a reasonable opportunity, not a perfect opportunity to put their case. This is determined by an objective standard; that is, what a reasonable person would believe was a reasonable opportunity given the circumstances.
Duty to inquire
6.10.11 The extent to which an investigator or decision-maker follows up a line of inquiry will be a matter of judgement. It is not necessary to follow up all matters but only those which are of substance and which, if established, will have a direct impact on the decision. In other words, if the available evidence strongly suggests a decision one way or the other, it may not be necessary to follow up on a particular question if the resolution of that question will not 'tip the balance'.
Grounds for review under the Administrative Decisions (Judicial Review) Act
6.10.12 Decision-makers needs to be familiar with the grounds for review in s5 and s6 of the Administrative Decisions (Judicial Review) Act 1977(ADJR Act). A finding that a person has breached the Code may be invalid if the decision-maker:
- has not been appointed under the agency's s15(3) procedures
- fails to comply with the agency's s15(3) procedures
- makes a decision motivated by improper purpose
- exercises discretionary power in bad faith
- takes into account irrelevant considerations or fails to take into account relevant considerations
- acts at the direction or behest of another person
- acts unreasonably
- acts in accordance with a rule or policy without regard for the merits of the case
- acts on the basis of insufficient evidence.
6.11 Key points for agency guidance material
6.11.1 Guidance for decision-makers and investigators could:
- make a clear distinction between the agency's mandatory procedures established under s15(3) of the PS Act and any guidance material on misconduct investigations
- explain agency processes for choosing a breach decision-maker and investigator
- outline agency procedures for the appointment of a breach decision-maker
- ensure the decision-maker and any investigator are aware of the importance of being and perceived to be unbiased and independent
- guidance material could also cover what to do if there are claims of bias
- emphasise the need for the decision-maker, and investigator if the roles are separated, to comply with the agency's s15(3) procedures
- describe agency processes for conducting an investigation, including advice on issues such as preparing records of discussion and taking witness statements
- advise on the different approaches to determining the scope of an investigation
- stress the importance of complying with the requirements of procedural fairness and other administrative law principles
- note the requirement for investigations to be carried out with as little formality and as much expedition as a proper consideration of the matter allows
- emphasise the need for planning the investigation before starting an investigation
- recognise the need to take the time needed to review the process to ensure all available relevant evidence has been collected
- note the importance of having a fair and independent investigation
- provide contact points for support and advice for witnesses, the person under investigation, the decision-maker and any investigator
- refer to, or adapt, the checklists for decision-makers in the appendices to this guide
- refer investigators and decision-makers to the Administrative Review Council better practice guides on administrative decision-making available at www.arc.ag.gov.au.
32 See the Administrative Review Council (ARC) Best-Practice Guide Decision Making: Natural Justice for more information on bias at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx
36 The Administrative Review Council (ARC) Best-Practice Guide Decision Making: Evidence, Facts and Findingsprovide guidance on how to gather and assess evidence. www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx
37 See the Administrative Review Council (ARC) Best-Practice Guide Decision Making: Natural Justice for more information at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx