Know Your APS Policy Rights
It is not unheard of for some APS employees to be misled as to what their true rights are, or their rights are ignored or abused. APS employees may also be unaware of the shortcomings of internal policies dealing with bullying, harassment, victimisation and discrimination (where covered) that could, when applied, cause you detriment. Therefore, before deciding to make a complaint, it is very important that you familiarise yourself with the APS policy position on bullying, harassment, victimisation and discrimination (where covered), and you are aware of your rights under your APS agency's policy and procedure documents (see below) and Enterprise/Collective Bargaining Agreement. (Also remember that, contrary to what officers in your APS agency may state, APS policies do not override existing laws and binding contracts.) Arming yourself with knowledge is one of the best ways to protect yourself and to make informed decisions about how to make a complaint that you feel most comfortable with.
If you do not have confidence in the independence, impartiality, fairness, transparency or competency of your APS agency's complaint-handling processes or complaint-handling officer, you should seriously consider seeking advice from an external advocate/legal representative about your options (see The Reality page).
This page outlines the following APS policies and guides:
If you do not have confidence in the independence, impartiality, fairness, transparency or competency of your APS agency's complaint-handling processes or complaint-handling officer, you should seriously consider seeking advice from an external advocate/legal representative about your options (see The Reality page).
This page outlines the following APS policies and guides:
- 1. Australian Public Service Commission's RESPECT Guide
- 2. Australian Public Service Commission's Handling Misconduct Good Practice Guide
- 3. Australian Public Service Commission's Circular No 2008/3 - Providing Information on Code of Conduct Investigation Outcomes to Complainants
- 4. Australian Public Service Commission's 'Not Just About Process: The Review of Actions Scheme' for APS Human Resources Practitioners
- 5. APS Agencies' Bullying, Harassment, Victimisation and Discrimination Policies
- 6. APS Agencies' APS Code of Conduct Preliminary Inquiry/Investigation Procedures
- 7. APS Agencies' Whistleblowing Policies and Procedures
1. Australian Public Service Commission's RESPECT Guide
This guide, which all APS agencies should be adhering to, sets out:
Importantly, this guide clearly states that:
Unfortunately, there is no guarantee that APS agencies will treat this guide seriously. Since the Australian Public Service Commission has no official disciplinary powers to exercise against an APS agency that fails to adhere to this guide, it can be assumed that this guide is, at best, aspirational and, at worst, merely for public consumption.
- the benefits of building a positive work environment;
- federal legislation that relates to workplace harassment and discrimination;
- descriptions of bullying and harassment;
- strategic approaches to building a respectful workplace;
- the role of leaders in promoting positive work environments;
- examples of management policies and systems that prevent and manage bullying and harassment;
- assurance mechanisms to monitor and evaluate the health of an organisation.
Importantly, this guide clearly states that:
- APS agencies should ensure that employees are encouraged to expose wrongdoing without fear of victimisation, and are aware of complaints-handling and whistleblowing procedures;
- APS agencies should ensure that mechanisms are in place to protect employees from victimisation for reporting inappropriate behaviour;
- APS agencies should ensure that employees are aware of their APS agency's review scheme, their review rights, and how to seek a review;
- managers have a responsibility to deal seriously and sensitively with complaints about bullying and harassment;
- managers should respond with care to all concerns or complaints by individuals or groups who perceive behaviour as bullying or harassment, even if it is found not to breach the APS Code of Conduct.
Unfortunately, there is no guarantee that APS agencies will treat this guide seriously. Since the Australian Public Service Commission has no official disciplinary powers to exercise against an APS agency that fails to adhere to this guide, it can be assumed that this guide is, at best, aspirational and, at worst, merely for public consumption.
| respect.pdf |
2. Australian Public Service Commission's Handling Misconduct Good Practice Guide
This guide provides APS agencies with guidance on good practice ways of handling misconduct matters under the APS Code of Conduct. Again, since the Australian Public Service Commission has no official
disciplinary powers to exercise against an APS agency that fails to
adhere to this guide, it can be assumed that this guide is, at best,
aspirational and, at worst, merely for public consumption.
This guide is more concerned about accused APS employees' interests than complainants' interests in APS agencies' handling of APS Code of Conduct matters. Yet, there are still points of relevance for complainants to be aware of, as noted below.
complaint with the complainants or other witnesses;
- directing the managers of the accused employees to take active steps to promote
a workplace culture which recognises the importance of encouraging employees
to report suspected misconduct;
- arranging for the accused employees to be temporarily assigned duties in another
location, ensuring that there is no presumption of prejudging the case;
- ensuring that complainants and witnesses are aware that they are entitled to
whistleblower protection and may request a risk assessment;
- where a risk assessment supports it, the complainant or witnesses can be assigned
other duties for which they are qualified in another location;
- making special provision to ensure the fairness of any selection process involving
the employees at risk of victimisation or discrimination by, for example,
appointing an independent member to the selection committee;
- developing and implementing a specially tailored protection plan in
circumstances where there is a real risk to the physical security of employees,
their families or property.
adequate preparation and may allow the interviewee to be accompanied by
another person to provide support;
- handle an investigative matter in a timely, systematic and effective manner and be
consistent with procedural fairness requirements;
- consider whether it would be appropriate to make available for consideration,
before the meeting, any documented information that will be discussed;
- plan the questions to be asked so as to avoid making assumptions, asking vague
questions or asking questions that might influence how responses are given;
- provide interviewees with the opportunity to respond to new and/or conflicting
evidence during the investigative process;
- wherever possible, seek to reach agreement on relevant facts/circumstances,
and seek corroborating evidence from the interviewee;
- decide before the interview whether it is to be audio-recorded (in which case a
copy of the recording should be made available to the interviewee) or whether a
written record of interview is to be prepared (in which case it may be convenient
to use a note-taker);
- indicate that a record of the discussion will be prepared and will be provided to
the interviewee (the objective should be to have jointly agreed records on the
content of all meetings - however, if this cannot be achieved, then the areas of
disagreement should be identified and documented);
- advise the complainant and any witnesses that personal information relating to
them that may be disclosed to the accused and others where necessary and
appropriate (any personal information about the complainant or witnesses should
be handled in accordance with the APS agency’s obligations under the Privacy
Act 1988).
way it has been collected;
- that the investigation has brought the decision-maker to a point where he or she
can make a fair, balanced and conscientious decision;
- that mandatory procedural steps have been observed.
original document is better than a photocopy);
- disputed facts should, where possible, be corroborated by other evidence;
- give consideration to the value that should be placed on hearsay evidence;
- consider the credibility of the witnesses (inconsistencies, honesty, possibility of
collaboration or improper purpose).
system, if appropriate, including specifying the standard of future conduct
required;
- improve the accused’s awareness of required standards of conduct, such as
access to training;
- close monitoring of, and advice/assistance on, future conduct;
- provide appropriate counselling;
- consider assigning new duties (care must be taken to ensure that this is
not perceived as a de facto sanction imposed without a proper process);
- for conduct involving interpersonal issues, alternative dispute resolution
approaches such as mediation or conciliation (see the discussion about the risks
involved in mediation at The Reality page).
standard of conduct expected and the potential consequences of misconduct;
- it demonstrates that the accused person is apparently unwilling to adhere to the
standard of conduct expected.
- providing detailed guidance to the managers making the important initial
decision of whether the alleged misconduct is a minor matter, or a more serious
one, to ensure fairness and consistency in the treatment of alleged misconduct;
- ensuring that the decision-maker who determines whether an APS Code of
Conduct breach has occurred has the necessary skills, experience and resources,
including knowledge of the investigation process;
- having a final checking process so that the decision-maker is able to ensure that
the required processes and paperwork associated with the investigation and
determination are completed prior to the final determination being made;
- considering whether a separate person should be delegated the power to
determine the appropriate sanction;
- limiting the number of people in the APS agency with the delegation to
determine a sanction to only a few people;
- making available detailed and clear guidance material to all employees about the
reporting and management of alleged misconduct.
This guide is more concerned about accused APS employees' interests than complainants' interests in APS agencies' handling of APS Code of Conduct matters. Yet, there are still points of relevance for complainants to be aware of, as noted below.
- APS agencies should explain that an employee who reports misconduct to an 'authorised person' is a whistleblower under section 16 of the Public Service Act 1999 and the Public Service Regulations 1999, regardless of whether they identify their disclosure as a whistleblower report or realise that it is a whistleblower report.
- Complainants should be provided with information about their rights to be protected from victimisation and discrimination and APS agencies should take a proactive approach to ensuring the protection of complainants.
- APS agencies should consider the circumstances of each complaint to determine if a formal assessment of the possibility of retribution is necessary. On the basis of this assessment, protective mechanisms should be put in place if required. These include:
complaint with the complainants or other witnesses;
- directing the managers of the accused employees to take active steps to promote
a workplace culture which recognises the importance of encouraging employees
to report suspected misconduct;
- arranging for the accused employees to be temporarily assigned duties in another
location, ensuring that there is no presumption of prejudging the case;
- ensuring that complainants and witnesses are aware that they are entitled to
whistleblower protection and may request a risk assessment;
- where a risk assessment supports it, the complainant or witnesses can be assigned
other duties for which they are qualified in another location;
- making special provision to ensure the fairness of any selection process involving
the employees at risk of victimisation or discrimination by, for example,
appointing an independent member to the selection committee;
- developing and implementing a specially tailored protection plan in
circumstances where there is a real risk to the physical security of employees,
their families or property.
- Whatever approach the APS agency takes with regard to the various types of misconduct, it must be broadly consistent across the APS agency so that employees are given consistent messages about the APS agency’s views on various types of misconduct.
- APS agencies should aim to keep the preliminary investigative phase as short and as informal as possible without compromising the quality and legality of the work undertaken. APS agencies should seek to avoid duplicating the formal investigation before deciding whether to notify the accused of the allegations.
- In serious cases where any delay in acting raises a real risk that the safety of employees or clients may be compromised or evidence may be destroyed, it is appropriate to decide to commence misconduct proceedings as quickly as possible.
- The test to apply in deciding whether to institute an APS Code of Conduct investigation is not whether the evidence establishes that a breach of the APS Code of Conduct has probably occurred, but rather whether the allegations are sufficiently substantial as to warrant further investigation.
- The investigator should:
adequate preparation and may allow the interviewee to be accompanied by
another person to provide support;
- handle an investigative matter in a timely, systematic and effective manner and be
consistent with procedural fairness requirements;
- consider whether it would be appropriate to make available for consideration,
before the meeting, any documented information that will be discussed;
- plan the questions to be asked so as to avoid making assumptions, asking vague
questions or asking questions that might influence how responses are given;
- provide interviewees with the opportunity to respond to new and/or conflicting
evidence during the investigative process;
- wherever possible, seek to reach agreement on relevant facts/circumstances,
and seek corroborating evidence from the interviewee;
- decide before the interview whether it is to be audio-recorded (in which case a
copy of the recording should be made available to the interviewee) or whether a
written record of interview is to be prepared (in which case it may be convenient
to use a note-taker);
- indicate that a record of the discussion will be prepared and will be provided to
the interviewee (the objective should be to have jointly agreed records on the
content of all meetings - however, if this cannot be achieved, then the areas of
disagreement should be identified and documented);
- advise the complainant and any witnesses that personal information relating to
them that may be disclosed to the accused and others where necessary and
appropriate (any personal information about the complainant or witnesses should
be handled in accordance with the APS agency’s obligations under the Privacy
Act 1988).
- The decision-maker on APS Code of Conduct matters retains final responsibility for adhering to the APS agency’s procedures and processes, including procedural fairness. The decision-maker should be actively involved in the planning of the investigation and ensuring the quality of the processes. It is the decision-maker who makes the determination as to whether the APS Code of Conduct has been breached, not the investigator (unless they are the same person). The decision-maker must independently exercise his or her decision-making power before forming any conclusion. The decision-maker must be satisfied:
way it has been collected;
- that the investigation has brought the decision-maker to a point where he or she
can make a fair, balanced and conscientious decision;
- that mandatory procedural steps have been observed.
- When making a judgement about the reliability of the evidence:
original document is better than a photocopy);
- disputed facts should, where possible, be corroborated by other evidence;
- give consideration to the value that should be placed on hearsay evidence;
- consider the credibility of the witnesses (inconsistencies, honesty, possibility of
collaboration or improper purpose).
- Once the decision has been made that it is not appropriate to handle the alleged misconduct through the agency procedures, managers have a number of alternative options:
system, if appropriate, including specifying the standard of future conduct
required;
- improve the accused’s awareness of required standards of conduct, such as
access to training;
- close monitoring of, and advice/assistance on, future conduct;
- provide appropriate counselling;
- consider assigning new duties (care must be taken to ensure that this is
not perceived as a de facto sanction imposed without a proper process);
- for conduct involving interpersonal issues, alternative dispute resolution
approaches such as mediation or conciliation (see the discussion about the risks
involved in mediation at The Reality page).
- Sanctions are intended to be proportionate to the nature of the APS Code of Conduct breach, provide a clear message to the accused employee that their behaviour was not acceptable, and act as a deterrent to the accused employee and other employees.
- Prior misconduct is also relevant to the imposition of a sanction and might usefully be taken into account by the sanction delegate where:
standard of conduct expected and the potential consequences of misconduct;
- it demonstrates that the accused person is apparently unwilling to adhere to the
standard of conduct expected.
- Information that tends to establish that an accused employee has, or may have,
breached the APS Code of Conduct would be regarded as personal information under the Privacy Act 1988. Where a complainant has raised issues about an APS employee’s actions or behaviour, or the processes, actions or conduct of an APS agency, information about the outcome of an investigation may need to be provided to the complainant. It should be possible in most circumstances to give a complainant adequate information about the way their complaint has been handled without disclosing personal information about an employee. (NB: this needs to be read in conjunction with the Australian Public Service Commission's Circular No 2008/3: Providing Information on Code of Conduct Investigation Outcomes to Complainants - see the heading below.)
- APS agencies should consider implementing the following key quality assurance mechanisms in the process of handling misconduct:
- providing detailed guidance to the managers making the important initial
decision of whether the alleged misconduct is a minor matter, or a more serious
one, to ensure fairness and consistency in the treatment of alleged misconduct;
- ensuring that the decision-maker who determines whether an APS Code of
Conduct breach has occurred has the necessary skills, experience and resources,
including knowledge of the investigation process;
- having a final checking process so that the decision-maker is able to ensure that
the required processes and paperwork associated with the investigation and
determination are completed prior to the final determination being made;
- considering whether a separate person should be delegated the power to
determine the appropriate sanction;
- limiting the number of people in the APS agency with the delegation to
determine a sanction to only a few people;
- making available detailed and clear guidance material to all employees about the
reporting and management of alleged misconduct.
| apsc_handing_misconduct.pdf |
3. Australian Public Service Commission's Circular No 2008/3: Providing Information on Code of Conduct Investigation Outcomes to Complainants
The 'Australian Public Service Commission's Circular No 2008/3' (see the PDF documents below) gives advice to APS agencies on providing information about outcomes of APS Code of Conduct investigations to complainants in terms of the Information Privacy Principles under the Privacy Act 1988 (see the Privacy Law sub-page).
The main relevant points that this Circular makes are:
- does not tolerate behaviour that is inconsistent with the APS Code of Conduct;
- has imposed an appropriate sanction where a breach has been found;
- has taken appropriate steps to ensure the problem will not recur.
The main relevant points that this Circular makes are:
- Complainants should be given sufficient information to provide assurance that the APS agency:
- does not tolerate behaviour that is inconsistent with the APS Code of Conduct;
- has imposed an appropriate sanction where a breach has been found;
- has taken appropriate steps to ensure the problem will not recur.
- Giving a complainant little or no information about the outcome of an investigation can create problems if an APS agency fails to assure the complainant that the issue has been dealt with properly. This lack of information may undermine confidence in public administration and lead to further claims, complaints or litigation (including requests for review, whistleblower reports and applications under the Freedom of Information Act 1982).
- Concern over employees’ privacy or the Privacy Act 1988 itself is often cited by APS agencies as the reason not to disclose any information about the handling of a complaint or the outcome of an investigation to a complainant. In these circumstances, agencies often refer to the Information Privacy Principles under the Privacy Act 1988. Agencies should exercise care that they do not overstate or misinterpret the effect of the Privacy Act 1988 when declining to provide information to complainants on the handling of a complaint or any remedial action taken as a result of the complaint.
- There may be other reasons why an APS agency is reluctant to discuss a complaint. An APS agency may find, for example, when investigating a complaint that appropriate policies or measures (such as manuals, adequate training or counselling in regard to an employee’s behaviour) had not been initiated or developed by the APS agency. It would be inappropriate in these circumstances to cite the Privacy Act 1988 as a reason why information about the investigation should not be disclosed to the complainant.
- Other parties to the investigation, such as the complainant and any witnesses, should be advised that personal information relating to them may be disclosed to the accused employee and others where necessary and appropriate. Any personal information about the complainant or witnesses should be handled in accordance with the APS agency’s obligations under the Privacy Act 1988.
- Records should be kept of any decisions to disclose personal information about an employee to another person, body or agency.
| apsc_circular_083.pdf |
| apsc_circular_083_-_att_a.pdf |
| apsc_circular_083_-_att_b.pdf |
| apsc_circular_083_-_att_c.pdf |
| apsc_circular_083_-_att_d.pdf |
| apsc_circular_083_-_att_e.pdf |
4. Australian Public Service Commission's 'Not Just About Process: Review of Actions Scheme' Guide for APS Human Resources Practitioners
This guide (see the PDF document below) is aimed at helping APS review officers to implement 'best practice' in handling applications for review of employment decisions in line with the APS Values. It acknowledges that a healthy organisation recognises that complaints provide organisations 'with opportunities to acknowledge and rectify mistakes, to learn from critiques of performance and to apply the lessons learned to improve decision-making, policy and procedures'. The guide also refers to the Administrative Review Council's Best Practice Guide No 3 on 'Decision-Making: Evidence, Facts and Findings' (see the PDF document below).
Importantly, the guide acknowledges that: 'A common pitfall is to ask people with insufficient expertise to suggest strategies for resolving workplace dysfunction where complaints of harassment or bullying have been made. Managers or consultants engaged by agencies to conduct harassment investigations may be asked, as an adjunct to their initial task, to advise on the causes of the problem and to suggest remedies. Where these people have no professional expertise to draw on, the interventions they propose may not contribute to resolving the issues underlying the complaint.'
Unfortunately, however, through the paragraph below, the guide has essentially given APS agencies an excuse to victimise complainants who are not 'whiter than white' because they are affected by strong emotions caused by the mistreatment they have suffered:
'Employees need to know that they have both the right and the opportunity to raise concerns about matters affecting them in their employment, including seeking review, and that they will not attract criticism for doing so, when they behave professionally and in good faith. Behaving professionally includes raising concerns in a respectful, courteous, constructive and factual manner and cooperating with the review process. It does not include unreasonably labelling colleagues’ behaviour as unethical or attributing unethical or dishonest motives to colleagues and managers.'
Clearly this paragraph was written by a human resources practitioner (ironically caught up in process), rather than a social worker who is trained in understanding the human condition when facing trauma. The fact is that, on many occasions, a complainant affected by justified strong emotions will not always be able to separate their anger and upset from the facts. Indeed, the judicial system recognises and accommodates this on many occasions for self-represented litigants. For the Australian Public Service Commission to put such a burden on APS complainants shows that the Australian Public Service Commission is ignorant of the experiences of complainants of workplace mistreatment. It is a fact of life that complaint channels are also going to be a valve for the release of emotions. APS agencies need to accept that this is a consequence of workplace mistreatment happening in the first place on their watch, rather than punishing the complainant for being human.
Importantly, the guide acknowledges that: 'A common pitfall is to ask people with insufficient expertise to suggest strategies for resolving workplace dysfunction where complaints of harassment or bullying have been made. Managers or consultants engaged by agencies to conduct harassment investigations may be asked, as an adjunct to their initial task, to advise on the causes of the problem and to suggest remedies. Where these people have no professional expertise to draw on, the interventions they propose may not contribute to resolving the issues underlying the complaint.'
Unfortunately, however, through the paragraph below, the guide has essentially given APS agencies an excuse to victimise complainants who are not 'whiter than white' because they are affected by strong emotions caused by the mistreatment they have suffered:
'Employees need to know that they have both the right and the opportunity to raise concerns about matters affecting them in their employment, including seeking review, and that they will not attract criticism for doing so, when they behave professionally and in good faith. Behaving professionally includes raising concerns in a respectful, courteous, constructive and factual manner and cooperating with the review process. It does not include unreasonably labelling colleagues’ behaviour as unethical or attributing unethical or dishonest motives to colleagues and managers.'
Clearly this paragraph was written by a human resources practitioner (ironically caught up in process), rather than a social worker who is trained in understanding the human condition when facing trauma. The fact is that, on many occasions, a complainant affected by justified strong emotions will not always be able to separate their anger and upset from the facts. Indeed, the judicial system recognises and accommodates this on many occasions for self-represented litigants. For the Australian Public Service Commission to put such a burden on APS complainants shows that the Australian Public Service Commission is ignorant of the experiences of complainants of workplace mistreatment. It is a fact of life that complaint channels are also going to be a valve for the release of emotions. APS agencies need to accept that this is a consequence of workplace mistreatment happening in the first place on their watch, rather than punishing the complainant for being human.
| apsc_not_just_about_process.pdf |
| arc_guide_note_3_-_decision-making.pdf |
5. APS Agencies' Bullying, Harassment, Victimisation and Discrimination Policies
All APS agencies should have specific policies on workplace bullying. However, as of October 2011, not all APS agencies had specific policies on all forms of harassment (particularly sexual harassment), victimisation and all forms of discrimination. The adequacy of an APS agency's bullying, harassment, victimisation and discrimination policies is pertinent to the issue of vicarious liability.
In 2011, Senator Michaelia Cash, Shadow Parliamentary Secretary for the Status of Women, was made aware that some APS agencies did not have a specific sexual harassment policy. Senator Cash subsequently put questions to all APS agencies through Senate Estimates about their position on a sexual harassment policy (see the PDF document below). Having been made aware through parliamentary processes of the importance of addressing workplace sexual harassment, it would be very surprising if there are any APS agencies left that do not have a specific sexual harassment policy.
In 2011, Senator Michaelia Cash, Shadow Parliamentary Secretary for the Status of Women, was made aware that some APS agencies did not have a specific sexual harassment policy. Senator Cash subsequently put questions to all APS agencies through Senate Estimates about their position on a sexual harassment policy (see the PDF document below). Having been made aware through parliamentary processes of the importance of addressing workplace sexual harassment, it would be very surprising if there are any APS agencies left that do not have a specific sexual harassment policy.
| senate_estimate_questions_-_senator_cash.pdf |
6. APS Agencies' APS Code of Conduct Preliminary Inquiry/Investigation Procedures
Each APS agency should have an internal procedures document that contains information about how formal complaints of breaches of the APS Code of Conduct within that APS agency are dealt with. The procedures document is legally binding under section 15(3) of the Public Service Act 1999. Some APS agencies supplement the procedures document with a more detailed guide that is not legally binding under section 15(3) of the Public Service Act.
In the interests of transparency and certainty, a high-quality procedures document/guide should cover the following matters (in addition to relevant matters referred to in the Australian Public Service Commission's RESPECT Guide, Australian Public Service Commission's Handling Misconduct Good Practice Guide and the Australian Public Service Commission's Circular No 2008/3: Providing Information on Code of Conduct Investigation Outcomes to Complainants, outlined above):
In the interests of transparency and certainty, a high-quality procedures document/guide should cover the following matters (in addition to relevant matters referred to in the Australian Public Service Commission's RESPECT Guide, Australian Public Service Commission's Handling Misconduct Good Practice Guide and the Australian Public Service Commission's Circular No 2008/3: Providing Information on Code of Conduct Investigation Outcomes to Complainants, outlined above):
- provide criteria for determining when a formal complaint is actually intended before considering whether to invoke the preliminary inquiry/investigation procedures, and provide criteria for when a formal complaint is considered to be 'finalised and closed' by an APS agency;
- clearly indicate the differences between a preliminary inquiry and an investigation;
- clearly indicate the steps involved in an internal review;
- specifically cross-reference the Australian Public Service Commission's Circular No 2008/3 (complainants should be aware of the limitations they face before considering whether to make an internal formal complaint);
- prescribe relevant minimum qualifications and professional standards to be expected from an investigator that ensure that investigators can deal with the complexities and sensitivities that go with workplace bullying, harassment, victimisation and discrimination;
- prescribe relevant minimum qualifications and professional standards to be expected from decision-making officers;
- prescribe relevant minimum qualifications and professional standards to be expected from a review officers;
- allow interviewees to obtain the professional background of investigators, decision-making officers and review officers;
- ensure that investigators, the decision officer and review officer dealing with a complaint are independent, unbiased and hold no conflict of interest;
- ensure that the person who prepares the investigation report making recommendations to the decision-making officer is not the same person who prepares a review report making recommendations to the review officer, so that there is true independence;
- provide guidance on courteous and respectful behaviour to be employed by investigators when conversing/corresponding with parties, and provide guidance on acceptable methodologies to be employed by investigators when conducting interviews in order to minimise harm and distress (in particular, there should be sanctions in place for when investigators engage in unethical behaviour, intimidation, discrimination or any other form of victimisation);
- clearly indicate the accepted ways parties to an investigation can provide evidence, such as a written statement, a phone interview, a face-to-face interview, or having advocates speak on behalf of the parties (otherwise it could be assumed that any of these ways should be accepted by an investigator);
- ensure that parties are told well before interviews how the interviews will be recorded;
- if interviews are audio recorded, an interviewee should be entitled to a transcript of the interview and, because the interview forms part of an administrative inquiry, not a criminal inquiry, the interviewee can add or delete anything that he or she wishes in his or her statement;
- give all parties the right to be accompanied by someone to an interview (other than a Workplace Contact Officer) to receive support, assistance or advocacy (particularly given the fact that workplace bullying, harassment, victimisation and discrimination involves emotionally charged issues and, consequently, parties may not be fully articulate, calm or have the ability to protect their interests);
- give complainants the right to be interviewed by an investigator of the same sex as a complainant when dealing with sexual harassment and sex discrimination matters, if requested;
- ensure that parties are not pressured to partake in an investigation if they have a medical certificate;
- ensure that potential complainants are not discouraged from seeking support from colleagues and collecting evidence to support their claims (this is a particular problem in the APS, as many complainants have been falsely told that they cannot discuss their experiences with anyone because this would be a breach of the Privacy Act 1988, thereby limiting potential complainants' opportunities to obtain support and witness evidence, which naturally aids the APS agency in achieving its goal to 'contain' complaints);
- ensure that all parties are told before interviews the scope of questioning to be expected from the investigators and their right to refrain from answering questions;
- ensure that all parties are made aware that when collecting information in interviews, investigators need to comply with the Privacy Act 1988 (see the Privacy Law sub-page);
- stipulate rules of evidence to ensure that evidence of questionable quality is not relied upon by investigators, decision-making officers and review officers (for example, there should be sanctions for when investigators collect evidence through asking inappropriate leading questions);
- explicitly recognise that all parties have a right to procedural fairness;
- recognise that whilst confidentiality needs to be maintained, the importance of open justice should also be a strong consideration;
- inform employees that they have a right to make complaints to external investigation/review agencies, where appropriate (this is particularly important where APS employees do not have confidence in the independence, impartiality, fairness, transparency or competency of their APS agency's complaint-handling processes or complaint-handling officers);
- require APS agencies to be supportive of parties' choices to seek external assistance from specialist professionals or organisations that deal with workplace bullying, harassment, victimisation or discrimination;
- provide genuine support for complainants and witnesses before, during and after the preliminary inquiry/investigation process.
7. APS Agencies' Whistleblowing Policies and Procedures
The legislative requirements for protection of whistleblowers in the APS against victimisation and discrimination are discussed at the Public Service Act sub-page. Reg.2.4 of the Public Service Regulations 1999 requires APS agency heads to establish procedures to deal with whistleblower reports and to provide advice on protection of whistleblowers from victimisation and discrimination. Usually APS agencies' whistleblowing policies/procedures are not that detailed.
