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Appendix 6 - Sample clauses for inclusion in agency Code of Conduct investigation procedures

Note that this page is under review. It has not yet been updated to reflect changes to the Public Service Act 1999 and Public Service Regulations 1999, or contained in the Australian Public Service Commissioner's Directions 2013, or in relevant legislation that impacts upon this guideance such as the Privacy Act 1988. Agencies may continue to use the guidance for reference, but should be aware that it may not reflect current legislative requirements.

Below are sample clauses agencies may wish to include in their Code of Conduct investigation procedures relating to the disclosure of personal information.

Clause 1—defining personal information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 10)

Personal information is defined in section 6 of the Privacy Act 1988 as ‘information or an opinion…about an individual…whose identity is apparent, or can reasonably be ascertained, from the information or opinion'. {Agency} will ensure that, where appropriate, necessary and reasonable, personal information about an employee under investigation will remain confidential.

Clause 1a—sensitive information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 12)

Sensitive information is defined in section 6 of the Privacy Act as ‘information or an opinion about an individual's racial or ethnic origin or political opinions or membership of a political association or religious beliefs or affiliations or philosophical beliefs or membership of a professional or trade association or membership of a trade union or sexual preferences or practices or criminal record that is also personal information or health information about an individual or genetic information about an individual that is not otherwise health information'. Special care should be taken in the handling of sensitive information. Sensitive information should generally not be disclosed to a third party without the express consent of the individual concerned.

Clause 2—to whom the personal information may be disclosed (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 41)

During the course of a Code of Conduct investigation, or after the investigation is complete, personal information about an employee under investigation may, where necessary, appropriate and reasonable, be disclosed to others (in accordance with IPP 2), including:

  • the complainant
  • other Commonwealth bodies who have been involved in the matter, such as the Commonwealth Ombudsman, the Office of the Privacy Commissioner or the Inspector-General of Intelligence and Security
  • an APS agency where the employee moves or seeks to move in the future.

Clause 2a—disclosure of personal information to the employee (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraphs 27–33)

During the course of a Code of Conduct investigation, or after the investigation is complete, in accordance with the principles of procedural fairness, the employee may be provided with personal information about an individual who is a party to the investigation. This may include the complainant and any witnesses to the investigation. Disclosure of information about the complainant and any witnesses to the respondent employee or others should be done in accordance with the agency's obligations under the Privacy Act.

Clause 3—opportunity to make a case as to why information should not be disclosed (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraph 31)

Where {agency} is considering disclosing personal information about an employee to another person, body or agency, the employee will be advised in writing and given the opportunity to make a case prior to the information being disclosed, as to why their personal information should not be disclosed. The employee will have {number} days to provide a case, in writing, to the investigating officer.

Clause 4—agency may disclose general information (refer Circular 2008/3: Providing information on Code of Conduct investigation outcomes to complainants, paragraphs 36–40)

Prior to disclosing information about the outcome of a Code of Conduct investigation, {agency} will have due regard to the Privacy Act 1988, including determining whether personal information will be used or disclosed and in what circumstances. General information containing no personal information may be disclosed to others where {agency} considers it necessary, appropriate and reasonable to do so.

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