Investigate a protected disclosure

To investigate the matter internally, use the following guide and our investigation plan template.

If you are unable to investigate the matter or it is inappropriate to do so, report the concern to the commission.

Familiarise yourself with your organisation's rules and policies

Identify if your organisation has rules and policies outlining how to handle such matters. 

Not all organisations have rules and policies, but if yours does, follow them.

Understand the situation and allegation

Clarify the concern and what kind of resolution the person is seeking. 

Consider if the matter is a: 

• service complaint
• personnel or human resources grievance issue
• breach of internal rules or process
• report of disclosable conduct.

Different matters require a different level of response.

When speaking to the person who is raised the matter, gather as much information as possible.

This includes: 

• name and their details (though they may choose to remain anonymous)
• dates and times
• people involved and witnesses
• other relevant information and evidence.

Assess the wellbeing and safety of the people involved

Consider the wellbeing and safety of the person who reported the matter and anyone else involved. 

If the person raised concerns for their wellbeing or safety, ensure steps are taken to address these concerns.

This could include: 

• moving the person to another role or area
• providing a support service such as the employee assistance program (EAP) or similar
• providing the person with the details of the Whistleblower Protection Officer (WPO).

Define roles

Clearly define the roles and responsibilities to investigate the matter. Read our guide on roles and responsibilities for investigating protected disclosures.

You should ensure that the investigator has: 

• the appropriate authority to conduct the investigation in accordance with the organisation’s rules (for example, who is authorised to appoint them?)
• access to relevant information, systems and tools to gather evidence on the matter
• the required knowledge of the organisation’s internal rules and processes.

Avoid conflicts of interest

Before starting any investigation, the nominated senior officer and the investigator should consider whether they have any actual, potential or perceived conflicts of interest. These may prevent them from objectively and appropriately dealing with the matter.

Also consider the perception of others who may become aware of any investigation. Would they perceive you to have an actual or potential conflict of interest? 

If there is a conflict of interest, it must be declared to the organisation.

Follow the required timeframes

If the disclosure is reported to the Commission:

• the matter must be allocated to an authorised official within 14 days of receiving the concern
• the authorised official must complete the investigation within 90 days of allocation.

Where disclosures are reported within an organisation, it needs to look into them in a timely manner and in accordance with any timeframes set out in its rules and policies. 

Select an appropriate investigative approach

Where appropriate and possible, try to come to a resolution. 

It may not be necessary to continue with an investigation unless there are systemic or serious issues that require full investigation. 

When a resolution can be reached instead of needing a full investigation, document the agreed action and outcomes.

If you can't come to a resolution, determine the appropriate action to be taken. This could include: 

• an internal review 
• a full investigation. 

The appropriate action will depend on:

• potential legal requirements
• the rules of the registered organisation
• the nature of the issue.

Keep records

A thorough investigation is built on justified actions and confidential and secure records management. 

The nominated senior officer and investigator should agree on where and how records, documents and notes on the investigation will be recorded. 

Ensure all relevant information and decision making is recorded and securely stored for future reference. 

This is crucial if an investigation process or approach is challenged or if the Commission or another regulator contacts the organisation about the issue.

Plan the investigation

The investigator should outline: 

• the allegations to be investigated
• the scope of the investigation
• an investigation plan. 

The plan should be agreed by the nominated senior official and used as a ‘sense check’ throughout the investigation.

If new allegations are raised throughout the investigation, you must decide whether they will form part of the investigation scope, or form the basis for a new, separate investigation or be dealt with in some other way.

Make sure there is appropriate support and oversight for the investigator. Without support, an investigator may feel unsupported or take longer than necessary.  

To help you plan the investigation, download our investigation plan template.

If more time is needed to complete an investigation these timeframes may be extended.

Ensure procedural fairness

Ensure the people under investigation are given an opportunity to put their case forward.

Use our notice of investigation commencing template.

There are 3 key components of procedural fairness that apply, even if they are not in the organisation's rules. 

The person the allegations have been made against must have an opportunity to respond formally before a decision is reached.

The decision maker must be impartial and free of actual or apparent bias. To avoid bias, the decision maker should not be the investigator. 

The decision must be based on the issues, evidence and facts. You must be able to articulate your rationale for reaching a decision.

Gather evidence

Gather sufficient reliable information to properly explore and address the allegations.

Document all lines of inquiry and why they were or were not followed. This should include what type of evidence was examined. For example:

• written evidence
• photographic evidence
• oral evidence
• electronic evidence.

If you organise any formal meetings, use our notice to attend interview template.

Findings

When investigating, each allegation will need to be assessed independently and assigned a ‘finding’. Commonly these findings will be one of the 3 potential outcomes:

1. The allegation was substantiated (the weight of evidence suggests the allegation was more likely than not to have occurred)
2. The allegation was not substantiated (the weight of evidence suggests the allegation more than likely did not occur)
3. Inconclusive/unable to determine (the weight of evidence does not lead to a finding of substantiated or not substantiated).

For assistance in preparing your findings, use our investigation plan template.

Report recommendations

Prepare a document setting out the: 

• background
• scope of investigation
• methodology and approach
• allegations
• findings with relevant facts 
• recommendations.

Recommendations could include: 

• remedies for the person who raised the issue
• action to improve the organisation’s processes and procedures 
• actions to address inappropriate conduct by an authorised party (for example, through training, an appropriate disciplinary process or referral to an appropriate external authority).

Decide on the actions to be taken

Once completed, the investigation report should be sent to the nominated senior officer, or an officer or committee outlined in the rules of the organisation. 

This person must review the investigation report and decide what action needs to be taken.

They may review it alongside human resources, another officer, or committee of the organisation.

The review may include asking the investigator to revisit aspects of the investigation if the nominated official believes the investigation was lacking in some aspect.

Legal advice may be sought as part of the decision-making process, if required.

Inform the parties

Once the investigation is completed, the person who reported the matter and the person who was the subject of the allegation should be informed of the outcome. 

This should be done according to the organisation’s relevant internal rules, policies and other considerations.

Confidentiality

You should maintain the confidentiality of the individuals involved. But you should not give any guarantees of absolute confidentiality. 

Sometimes names or identifying details need to be disclosed to people assisting with the investigation. People should be informed when it is necessary to name them and that even when they are not named it is possible that their identity could be guessed.

Breaches of confidentiality are one of the key causes of reprisals against whistleblowers in investigations. You should remind relevant people that confidentiality is important. Disciplinary action may be taken against those who breach it.

Anonymity

You may receive anonymous reports of wrongdoing. 

It can be difficult to do a proper and appropriate inquiry or investigation without being able to talk to the whistleblower. 

But you must attempt to take all steps to take appropriate action, including, where warranted, an investigation.

• Investigation checklist
• Understand a whistleblower's protections

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