1.1 Depending on the circumstances, agencies may find that they require the services of an external investigator to conduct, or assist with, an investigation of suspected misconduct. This could occur, for example, where agencies do not have the resources or expertise to conduct investigations themselves.70
1.2 This appendix is designed to assist APS managers and human resource practitioners with selecting and managing the engagement of an external investigator to undertake an investigation of suspected misconduct. This appendix may also assist those who are managing investigations conducted by APS employees.
2.1 The objective of this appendix is to assist agencies in managing these investigations in a way that will produce a good quality outcome and represents value for money for the agency.
2.2 This appendix provides advice on
- the decision-making framework
- the circumstances in which an agency may choose to engage an external investigator
- the role of the external investigator
- identifying and engaging a person with the appropriate skills to conduct the investigation
- specifying what will be required of the external investigator in the contract
- briefing and managing the performance of the external investigator
- deliverables required from an investigator
- investigator training programs
- where to access further information
- details on cooperative agency procurement.
3. Limitations of this appendix
3.1 This appendix is not guidance on contract management. The Department of Finance (Finance) has policy responsibility for procurement. When conducting procurement, agencies must comply with the Commonwealth Procurement Rules (CPRs), and their procurement instructions, and guidelines, and spending approval processes.
3.2 The Australian National Audit Office has produced a better practice guide on developing and managing contracts. The ANAO guide covers the phases of the procurement cycle commencing from the selection of a preferred tenderer or contractor through to managing and ending the contract.71
3.3 Further information on applying the procurement framework is also available from each agency's procurement area.
4.1 In this appendix, the terms 'external investigator', 'investigator' and 'contractor' are used interchangeably to describe private sector contractors engaged by an agency to conduct an investigation of suspected misconduct.
4.2 A reference to an agency's 'misconduct procedures' or &ls
s15(3) procedures' is a reference to the written procedures made by the agency head for the purpose of determining whether an Australian Public Service (APS) employee, or former employee, has breached the APS Code of Conduct (the Code) and for determining sanction. These written procedures are made under s15(3) of the Public Service Act 1999 (PS Act).
5. When might an agency consider hiring an external investigator?
5.1 An agency may decide to engage an external investigator for various reasons. Such reasons could include the following circumstances.
- Where the agency considers it to be a cost effective way of managing its investigations caseload.
- The agency is small and has limited expertise internally, or cannot commit the internal resources required to conduct an investigation.
- The allegations concern matters that require expertise which is not available in the agency.
- There is difficulty finding people within the agency to investigate who would be seen to be independent and unbiased.
- Where public confidence in the administration of the agency would be best served by an investigation that is at 'arm's length' from the agency.
5.2 Another option could be to use an employee from another APS agency which would also have the added benefit of assisting in building capability across the APS. Alternatively, for non-Senior Executive Service employees suspected of breaching the Code, and with the relevant employee's agreement, an agency may seek the services of the Merit Protection Commissioner or the Australian Public Service Commissioner to conduct the investigation in certain circumstances.
6. The role of the external investigator
6.1 Depending on the circumstances, an external investigator may be engaged to perform various tasks. The Commission is aware that agencies commonly engage an external investigator to
- assist the breach decision-maker with an investigation into part or all of the suspected misconduct
- conduct an investigation and make a recommendation to the agency breach decision-maker about whether a breach has occurred
- this may include making a recommendation about a sanction to the agency
- conduct an investigation and determine whether a breach has occurred
- this may include making a recommendation about a sanction to the agency
- conduct an investigation, determine whether a breach has occurred, and determine a sanction if one is required.
6.2 There are advantages and disadvantages with each option. In general, there are significant advantages in separating the investigation from the decision-making process. In particular, if the external investigator's role is limited to assisting with, or conducting, an investigation and making recommendations, this allows the agency decision-maker to ensure that the process is procedurally sound. It also offers the opportunity to correct any procedural errors in the investigation before a decision is made.
6.3 Where the investigator's task is to make a recommendation to the agency decision-maker, this also ensures that the decision-maker is available to answer questions and to explain the reasons for their decision, should the decision be subject to administrative review or legal challenge.
6.4 However, arranging for the investigator to have decision-making powers may avoid double handling of the matter and may save costs and time. It may also be necessary to provide the investigator with decision-making powers because the outcome needs to be independent of agency decision-makers.
6.5 If an external investigator is tasked with determining whether a person has breached the Code, the agency needs to ensure that the investigator is properly authorised in accordance with the agency's s15(3) procedures.
6.6 Where an agency requires an external investigator to impose a sanction, authority to delegate the statutory power to impose a sanction to an 'outsider' must be obtained from the Australian Public Service Commissioner (the Commissioner) in accordance with s78(8) of the PS Act.72 The Commissioner considers each request on a case-by-case basis and, before giving consent, takes into account a range factors, including the duties to be performed and the qualifications and skills of the outsider.
7. Key attributes that an investigator should possess
7.1 Decisions made about suspected misconduct are important administrative decisions, both in their impact on the person under investigation and in relation to stakeholder confidence in an agency's employment decisions generally.
7.2 There are some essential skills and capabilities that external investigators engaged to undertake investigations into suspected breaches of the Code need to be able to demonstrate. These will be important in any evaluation of the skills of potential contractors.
7.3 These specific skills and capabilities are
- a good understanding of the APS employment framework, in particular the PS Act and subordinate legislation, and the relevant requirements of the Fair Work Act 200973
- expertise in conducting administrative investigations which requires, among other things, the capacity to weigh often conflicting evidence for the purpose of making findings of fact
- a good understanding of administrative decision-making, including the requirements of procedural fairness and the need for balanced, reasonable and fair decisions
- a capacity to provide a written report that is evidence-based, demonstrates sound reasoning and sets out the process followed in the investigation and the findings in a logical, clear way74
- sound analytical skills, good judgement, interpersonal and strong oral and written communication skills
- sound skills in gathering evidence and conducting interviews.
7.4 The investigator should also have a reasonable understanding of the Privacy Act 1988 and the Public Interest Disclosure Act 2013.
8. Risks arising from engaging the 'wrong' investigator
8.1 There are some obvious risks arising from engaging a contractor who does not have the appropriate capabilities. Examples include
- The investigator does not comply with the agency's s15(3) procedures for investigating suspected misconduct. This can result in a procedural flaw that may lead to a recommendation from the Merit Protection Commissioner that the breach and/or sanction decision be set aside. A procedural flaw may also lead to the breach and/or sanction decision being set aside by a court.
- The individual under investigation is unable to respond to the case against them appropriately because of inadequacies in the case put to them, resulting in a procedural flaw with the same consequences as above.
- The investigator is engaged to undertake the investigation, but subsequently advises that they had not realised the level of difficulty of the case and withdraws their services while the investigation is underway.
- An investigator that has little expertise in conducting administrative inquiries cannot competently weigh the evidence about the individual's behaviour to make clear findings of fact. This can result in a Merit Protection Commissioner recommendation that the decision be set aside, and/or the decision is set aside by a court.
- Having a decision set aside on review is more than just a 'technical glitch'. It increases the time and resources required to resolve an issue and can influence employee opinion on the fairness and reasonableness of the agency's actions, making it more difficult to enforce appropriate standards of behaviour.
9. Engaging the investigator
9.1 Identifying the right investigator, providing clear instructions about their role and responsibilities, and managing their performance throughout the period of the contract is critical to obtaining value for money. Whoever is chosen should be 'fit for purpose'. Particular investigators may suit particular types of cases-investigating a relatively straightforward suspected misuse of credit card is quite different from investigating alleged bullying and harassment.
9.2 After identifying a need for investigator services and determining the scope, risk and estimated cost of the investigation, an agency will need to consider how the investigator services will be obtained from the market.
9.3 The engagement and contract management process for outsourced Code investigations is not different, in its essentials, from the management of other types of contracts. Accordingly, an agency considering engaging a contractor to undertake a Code investigation must comply with the CPRs and the agency's procurement instructions and guidelines, and spending approval processes.
Sourcing investigator services from the market—procurement methods
9.4 The CPRs set out the rules that agencies must comply with when they procure goods and services.75 The estimated cost of the investigator services will largely determine the procurement method for the agency, those methods being an open tender, prequalified tender or limited tender. A limited tender under the CPRs 'involves an agency approaching one or more potential suppliers to make submissions, where the process does not meet the rules for open tender or prequalified tender'.76
9.5 Cooperative procurement enables the use of a procurement contract by more than one agency. Agencies can procure cooperatively by a joint approach to the market and/or where an agency/ies establish a contract or standing offer arrangement that allows other agencies to access.
9.6 If an agency wishes to join an existing contract of another agency, the initial request for services and the contract/deed of standing offer should have already specified potential use by other agencies, i.e. a multi-agency access clause/s.
9.7 Agencies joining an existing contract should ensure that:
- value for money is achieved
- the goods and services being procured are the same as provided for within the contract
- the terms and conditions of the contract are not being materially altered.77
9.8 Smaller agencies may wish to check with their portfolio agencies to see whether cooperative procurement arrangements for investigation services exist which they could access.
9.9 The AusTender78 search functionality also allows the searching of current cooperative procurement arrangements in APS agencies. Providers listed on the Legal Services Multi-Use List may also offer such services.79
9.10 Some agencies have already approached the market and have established a panel for investigation services. Two agencies with these arrangements in place, at the time of writing, are listed at the end of this appendix under Cooperative Procurement.
Preliminary discussion before engaging a potential investigator
9.11 If an open tender is not required under the CPRs and is undesirable, then a limited tender may be undertaken. In this case a preliminary discussion with the investigator/s may be suitable. Such discussions should focus on the contractor/s suitability for the role in accordance with evaluation criteria. It provides an opportunity to:
- confirm that the potential investigator has the expertise to investigate the case, given the level of complexity involved
- confirm training undertaken and/or academic qualifications
- undertake additional checks on the potential investigator's suitability, including requesting contact details for referees
- identify any conflicts of interest or concerns about possible bias
- explore the potential investigator's ideas for managing the investigation
- clarify the support that may be required from the agency including, for example, access to administrative support and/or legal advice
- discuss the preliminary details of a contract, including a statement of requirements to define the services the investigator is expected to deliver, the standard to which they are to deliver it, and associated timelines
- it is important in having discussions of this sort that the agency does not divulge sensitive and/or confidential information
- establish the basis on which fees are payable, for example, capped costs, hourly rates etc.
9.12 The suggested discussion points above, on skills, experience, the suitability of the investigation methodology and costs, are likely to form the basis of the evaluation criteria for the procurement.80
A judgement needs to be made about the information that is able to be provided to potential contractor/s, given that no contract has been signed and any potential investigator is, therefore, not yet bound by contract provisions concerning confidentiality.
A general outline of the case, the potentially relevant aspects of the Code, an assessment of the complexity of the case, and the likely number of witnesses should serve as an adequate amount of information on which to approach potential contractors.
Generally, information provided about the case should not include any sensitive information, including personal information about the person under investigation or other parties. However, it will be necessary to check that a particular investigator does not have a conflict of interest in undertaking the work and the name of the person(s) under investigation will therefore need to be disclosed at some point.
9.13 Checking with referees is a critical part of evaluating the suitability of contractor/s and testing a potential investigator's claims regarding skills and capabilities before deciding to engage them.
9.14 A referee should be an individual with a good knowledge of the APS misconduct framework and in a position to answer questions on the outcomes of at least one or more previous investigations of suspected misconduct that the investigator has conducted.
9.15 Agencies may also wish to ask a potential invest igator for a list of agencies for which they have conducted employment related investigations, including the contact details of the relevant contract managers. This enables the agency to choose who to contact as a referee. A potential investigator should be informed that the agency may approach any number of these agencies for references.
9.16 Attachment A to this appendix contains a checklist of suggested questions to ask referees.
The key to selecting a competent investigator and achieving a good outcome is:
- thorough referee checks
- clear terms of reference for the investigation. See Terms of Reference for Investigation below.
- sound contract management undertaken by a contract manager with a good understanding of the legislative framework, including the agency's procedural requirements for conducting a Code investigation and, ideally, with experience in managing or investigating suspected misconduct.
10. Developing the contract
10.1 Once a decision has been made to engage a contractor to undertake a Code investigation a contract needs to be developed. Advice on the form of the contract and its mandatory terms is usually available from each agency's procurement areas.
10.2 There should be a common understanding between the investigator and the agency about the services to be delivered that is apparent in the contract for services. This will include matters such as:
- the role of the investigator, for example, to make recommendations
- the scope of the investigator's powers, for example, confined to the terms of reference for the investigation which cannot be amended without the agreement of the agency
- the detail of what is to be included in any report to the agency
- the process that will be followed in gathering evidence and reaching a decision, including the processes mandated by the agency's misconduct procedures81
- the resources the agency will make available to assist the investigator
- depending on the nature of the case this could include access to the agency's electronic records, access to legal advice, access to agency subject matter experts, and administrative support
- if travel is required, the arrangements for paying for the travel or reimbursement of costs and at what rate
- how procedural issues will be managed, including, in particular, procedural fairness, privacy and confidentiality
- the agreed time, subject to any unforeseen circumstances, the investigation will take
- how the records generated by the contractor will be dealt with
- generally speaking the contract should provide that all records should be returned to the agency's custody at the completion of the contract with all copies deleted from the contractor's system
- the contractor may be permitted, however, to keep a de-identified and de-sensitized version of the work for their records
- a requirement in the contract that the investigator will deliver a report at a standard that satisfies the contract manager and to provide in the contract for the investigator to rework the report, at their own cost, if the contract manager is not satisfied with the standard of the draft report
- where a capped fee is not agreed, the estimated cost of the investigation and the circumstances and processes for approval of additional costs should the investigation require this
- the arrangements that exist for the investigators' professional indemnity insurance - for example, to cover the cost of defending their decision in court. If there is no professional indemnity insurance the contract may provide that the service provider will meet these costs.
11. Terms of reference for the investigation
11.1 The scope of the investigation, in effect its 'terms of reference', will need to settled and provided to the investigator before the investigation starts. The terms of reference should not be too broad or too narrow and needs to be clear. Different formulations can provide very different outcomes in terms of cost and time and therefore need careful consideration. For example, terms of reference that require an examination of 'Jane's behaviour towards Mary last week' is very different from an examination of 'Jane's behaviour towards Mary' and from 'Jane's behaviour towards Mary at a meeting on [date/time]'.
11.2 It is often helpful to provide the employee under investigation with a copy of the terms of reference for the investigation.
11.3 The contract should be formulated so that if fresh allegations emerge during the investigation revised terms of reference will need to be agreed with the agency.
12. Managing the performance of the investigator
12.1 As with any contract, the performance of the contractor, including whether they are meeting the terms of the contract, needs to be managed. In the case of Code investigations, the contract management role often falls to a human resource practitioner.
12.2 The contract manager should be a person with a good understanding of the legislative framework, including the agency's s15(3) procedures requirements for conducting a Code investigation, and ideally would themselves have experience in managing or investigating suspected breaches of the Code.
12.3 In addition, the contract manager needs to be confident in:
- advising the investigator on the handling of the investigation. If the investigator is a decision-maker care needs to be taken to ensure that any advice given maintains the independence and impartiality of the investigator
- assessing the investigator's performance as the investigation progresses and taking action if there are concerns about the investigator's performance.
12.4 All contract managers should familiarise themselves with this guide, Handling Misconduct, and other reference material listed below in the section on Further information. Contract managers are also able to obtain advice about good practice in managing Code investigations from the APSC's Ethics Advisory Service. The contact details for this service are also in the section on Further information below.
12.5 If the contract manager is inexperienced, and doubts arise about the contractor's management of the investigation or procedural issues arise during the investigation, they may need to access expert advice within the agency, for example from the agency's procurement/administrative areas.
12.6 Agencies may wish to consider building the following process stipulations into their contracts with external investigators to provide the contract manager with adequate capacity to guide the investigator.
- Sufficient details of the process to be followed to enable the contract manager to assess that the process the investigator intends to follow conforms with the agency's misconduct procedures. The amount of detail will vary according to the scope of an agency's misconduct procedures.
- The investigator to clear all key correspondence with the contract manager before dispatch, including, in particular, the notice prepared under the agency's misconduct procedures to advise the employee of the details of the suspected breach of the Code.
- The investigator to report on progress to the contract manager at key milestones, and/or regular intervals, during the investigation.
- The investigator to advise the contract manager of any procedural or other issues that might delay or complicate the investigation. In certain circumstances, it may also be appropriate to require the investigator to clear the handling of these matters with the contract manager. These circumstances include
- where there are fresh allegations of breaches of the Code that fall outside of the terms of reference
- where an employee raises medical issues
- where anyone associated with the process threatens to harm themselves or others.
- The investigator to clear any correspondence to the individual under investigation or witnesses with the contract manager where that correspondence concerns procedural issues, including complaints or concerns about the investigation raised by the individual under investigation and witnesses.
- The investigator to provide the contract manager with a draft report before it is submitted as a final report for procedural matters to be checked; however, care needs to be taken that the independence of the report is not compromised.
- In circumstances where the investigator is asked to determine breach and/or decide sanction, the investigator is to make themselves available to the agency, at their own cost, in the event that questions about the decision are raised on review by the Merit Protection Commissioner or the courts.
12.7 In addition, it may be helpful for the contract manager to review records of interview with the employee under investigation and witnesses as they are completed to check that they are sufficiently thorough and relevant to the matters under investigation.
13. Deliverables required from the investigator
13.1 The key deliverable from the investigation process is an investigation report which includes the investigator's findings, which, depending on the investigator's role, may be preliminary findings, and any recommendations. The documentary and other evidence that was relied upon by the investigator need to be presented in support of the findings and recommendations in the report.
13.2 The report should be clearly written and follow a logical structure.82 Where the investigator is performing a decision-making role, rather than making recommendations to an agency breach decision-maker, the report should:
- set out the details of the alleged misconduct and summarise how the concerns came to light
- set out the process followed in the investigation to collect evidence and information
- determine what facts need to be established in order for the decision-maker to be able to make a decision, i.e. material questions of fact
- present all the relevant evidence including, in particular, the employee's response to the allegations and to any new or conflicting evidence that was uncovered during the investigation
- set out the investigator's findings of fact and conclusions for each allegation. This may not be the case if the role is simply to make a recommendation to an agency breach decision-maker
- include details of the evidence that the investigator relied on to support findings of fact/conclusions
- include any matters that are disputed and set out the reasons for preferring one account over another
- note any other inconsistencies in the evidence or issues that remain unclarified
- identify any mitigating or aggravating circumstances identified during the investigation. This will be especially relevant if a sanction is to be determined
- express a view on whether the Code has been breached, and refer to the relevant element or elements of the Code in question
- set out reasons why the action or behaviour amounted to a breach of the element or elements of the Code.83
Particular attention needs to be paid to the way the investigator presents the allegation of suspected misconduct in the notice of suspected misconduct and then again in the report.
In the course of a misconduct investigation it will be important to make findings of fact about the behaviours the person is alleged to have engaged in. For this reason the allegations should refer to specific behaviours on specific occasions. For example, it is not sufficient to state that the allegation is that the person has breached s13(3) of the Code without describing the behaviours that are of concern.
Nor should the allegations be presented as assertions about the individual's personality or character, for example, that he or she is an aggressive and angry individual. In the absence of examples of specific behaviour it is not possible to prove or disprove assertions about an individual.
Allegations should link specific behaviours, that the investigator is able to gather evidence about, to specific breaches of the Code. For example, 'on [a named date and place, person X] by raising their voice, used threatening language towards a colleague and appeared to be angry and in doing so is alleged to have breached s13(3) of the APS Code of Conduct.'
14. Investigator training programs
14.1 Knowing that an external investigator has attended a relevant training program can provide some reassurance of the skills of the investigator.
14.2 There are investigation skills training programs which could be useful and worth considering in evaluating a contractor's skills. These include competency based training in investigations, particularly with respect to fraud control,84 and training in investigations and administrative decision-making offered by law firms.
14.3 For example, the Australian Government Solicitor offers courses for APS employees who have a role in determining whether a breach of the code of conduct has occurred, when and how suspension from employment should be managed and the imposition of a sanction 85 which focuses on the APS conduct framework. These courses have been assessed by the APSC as appropriately covering the conduct framework and the responsibilities of investigators and decision-makers and for this reason is endorsed. This endorsement does not cover the learning experience or the quality of the facilitator.
15. Further information
15.1 The Ethics Advisory Service within the Commission is available to all APS employees. This includes human resource practitioners and managers who are managing investigations of suspected misconduct, who wish to discuss and seek advice on ethical issues which occur in the workplace, and make sound decisions around these issues.
15.2 The Ethics Advisory Service may be contacted on 02 6202 3737 or by email at ethics [at] apsc.gov.au.
15.3 The Commission has published a range of guidance on the APS Values, Employment Principles, and the Code and related matters. These publications are available from the APSC's website http://www.apsc.gov.au.
15.4 Of particular relevance is APS Values and Code of Conduct in practice: A guide to official conduct for APS employees and agency heads .86
15.5 From time to time the Commission also releases circulars and advices about specific aspects of reporting or managing suspected misconduct in the workplace. These are available from www.apsc.gov.au/publications-and-media/circulars-and-advices.
15.6 As mentioned throughout this appendix, the Administrative Review Council has published better practice guides on administrative decision-making which explain the elements of making sound and lawful administrative decisions. Those guides are available at www.arc.ag.gov.au/Publications/Reports/Pages/OtherDocuments.aspx.
15.7 Further information on contract management and the CPRs is available at the Finance procurement website www.finance.gov.au/procurement/index.html.
15.8 The Finance website includes a number of tools that may assist agencies conduct streamlined procurement activities. This includes a standard contracting suite and procurement process map for low valued procurements.
15.9 The contact details of three agencies that have in place a panel for investigation services are as follows
Australian Public Service Commission
Panel Name: Business Services Panel – Service Area – Administrative Investigations
Contact Panel Services: (07) 3004 0725 or panelservices [at] apsc.gov.au
Australian Taxation Office (ATO)
Panel Name: Administrative Investigations and Review Services.
Contact ATO Helpline: 13 15 50
A request for details on the investigator panel arrangements will be escalated to the ATO Code of Conduct area.
Department of Agriculture
Panel Name: Investigation of Misconduct Allegations.
Contact Procurement Advice and Operations Team: Procurementhelpdesk [at] daff.gov.au">Procurementhelpdesk [at] daff.gov.au
70 At the request of the agency head, or the Prime Minister, the Public Service Commissioner may inquire into and determine whether an APS employee, or former employee, has breached the Code in certain circumstances (s41(2)( n) of the PS Act). Similarly, at the request of an agency head the Merit Protection Commissioner may inquire into and determine whether an APS employee, or former employee, has breached the Code in certain circumstances (s50(ca) and s50A of the PS Act).
72 See the Australian Public Service Commissioner's guidance Delegations under the Public Service Act 1999 and subordinate legislation www.apsc.gov.au/aps-employment-policy-and-advice/employment-framework/delegations.
73 An understanding of the unfair dismissal and adverse actions provisions of the Fair Work Act may be important, depending on the circumstances of any given case. Likewise, an understanding of anti-discrimination law may also be necessary. Training in administrative law is generally offered by law firms.
74 Consistent with the Administrative Review Council's Best Practice Guides, particularly those on 'Evidence, Facts and Findings' and 'Reasons'
75 www.finance.gov.au/procurement/procurement-policy-and-guidance/commonwealth-procurement-rules and www.finance.gov.au/procurement/procurement-policy-and-guidance/buying/accountability-and-transparency/ethics-and-probity/principles.html
81 Some agencies specify how parties are to be contacted.
82 Agencies are encouraged to refer to the Administrative Review Council Best Practice Guides on 'Evidence, Facts and Findings' and 'Reasons' for guidance on this element of administrative decision-making.
84 The Department of the Attorney-General has information about fraud control and investigations training on its website and links to other sites that provide information on courses at: www.ag.gov.au/CrimeAndCorruption/FraudControl/Pages/default.aspx
86 www.apsc.gov.au/publications-and-media/current-publications/aps-values-and-code-of-conduct-in-practice - please note at time of publication this guide was under review