24CHWhen conduct issue may or may not be investigated

24CH When conduct issue may or may not be investigated

When Commissioner may decide to investigate (1) The investigating Commissioner may decide to investigate a conduct issue only if: (a) the Commissioner is satisfied on reasonable grounds that there is sufficient evidence or information to justify doing so; and (b) if the issue arose from a conduct complaint or conduct issue referral—either: (i) the Commissioner has consent to investigate the issue; or (ii) the Commissioner is reasonably satisfied that a serious risk to work health or safety arises, or could arise, from the conduct concerned. (2) For the purposes of this section, the investigating Commissioner has consent to investigate a conduct issue if: (a) the issue arose from a conduct complaint and the complainant has not withdrawn the complaint; or (b) all of the following apply: (i) the issue arose from a conduct issue referral for which there is a complainant; (ii) the referral was made with the consent of the complainant; (iii) the complainant has not withdrawn that consent; or (c) the issue arose from a conduct issue referral for which there is no complainant. Commissioner may consult before deciding whether to investigate (3) Before deciding whether to investigate a conduct issue, the investigating Commissioner may consult with any person affected by the conduct concerned as the Commissioner considers appropriate. When Commissioner must decide not to investigate etc. (4) The investigating Commissioner must decide not to investigate a conduct issue, or (if the investigation has started) not to investigate a conduct issue further, if: (a) the issue arose from a conduct complaint or conduct issue referral and at the time of the conduct concerned, both the complainant and respondent were non‑core participants; or (b) at the time of the conduct concerned, the respondent was: (i) an APS employee who is not a MOPS employee; or (ii) a Parliamentary Service employee; or (iii) an Agency Head; or (iv) the Secretary of a Parliamentary Department; or (v) the Parliamentary Librarian; or (vi) an AFP appointee; or (c) the conduct concerned forms part of proceedings in Parliament for the purposes of section 16 of the Parliamentary Privileges Act 1987; or (d) the conduct concerned may constitute a serious offence against a person and the person does not consent to the investigation. When Commissioner may decide not to investigate etc. (5) The investigating Commissioner may decide not to investigate a conduct issue, or (if the investigation has started) not to investigate a conduct issue further, if: (a) if the issue arose from a conduct complaint or conduct issue referral—the Commissioner is satisfied that the complaint or referral is frivolous, vexatious, misconceived or lacking in substance or was not made in good faith; or (b) if the issue arose from a conduct complaint or conduct issue referral and the Commissioner does not have consent to investigate the issue—the Commissioner is satisfied that it is unreasonable to continue the investigation, taking into account the progress of the investigation and fairness between the persons affected by the investigation; or (c) the Commissioner is satisfied that the conduct concerned: (i) would be more appropriately dealt with through a service provided under section 16 (complaint resolution function), or under another law of the Commonwealth or a law of a State or Territory; or (ii) is being dealt with through a service provided under section 16 (complaint resolution function); or (iii) is being dealt with under another law of the Commonwealth or a law of a State or Territory and it would be inappropriate to conduct an investigation under this Act at the same time; or (iv) has already been dealt with under this Part, another law of the Commonwealth or a law of a State or Territory and there are no further matters concerning the conduct that warrant investigation; or (d) the conduct concerned is, or has been, the subject of criminal or civil proceedings (including any preliminary investigations or action that might lead to criminal or civil proceedings); or (e) if the respondent is a non‑core participant—the Commissioner is satisfied that the issue would be more appropriately dealt with by the respondent’s employer; or (f) the Commissioner is satisfied it is inappropriate or impracticable for the issue to be investigated for any other reason.